(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
2. The accused in Sessions Case No.27/2009 on the file
3. Appellant has been sentenced as under:
In default of payment of fine of Rs.25,000/- in all,
the accused is sentenced to undergo imprisonment for a
period of three months.
All the sentences shall run concurrently.
Out of the fine amount, an amount of Rs.20,000/-
(Rupees twenty thousand only) shall be paid to the mother
of the deceased Manorama and the remaining sum of
Rs.5,000/- to the State vide Section 357(3) Cr.P.C.
M.O. Nos.1 to 18 are ordered to be destroyed after
the appeal period is over.
Free copy of this judgment be supplied to the
accused forthwith.
4. The facts in brief, which are utmost necessary for
4.8. On the same night, Raghavendra (PW.2) also
received a similar call from the accused. As such, they decided to
arrange the funds by 18.11.2008 to meet the demand of the
appellant and requested that, until such time, Anjana be looked
after properly. It was decided that the said decision was
conveyed to the appellant.
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4.9. However, on 14.11.2008 at about 1:45 p.m.,
Raghavendra (PW.2) telephoned the complainant and informed
him that Anjana, after strangulating her daughter, had also hung
herself, and that both dead bodies were kept in the mortuary of
KMC Hospital. He further intimated the complainant that he got
said information from the appellant earlier that day at about
12:30 p.m.
4.10. Immediately, the complainant, his wife, and other
relatives rushed to KMC Hospital at about 6:00 p.m. and saw the
dead bodies of Anjana and her minor daughter. The doctors
showed them the ligature marks on the neck region of the
deceased.
4.11. On the same evening at about 7:15 p.m., the
complainant visited Vidyanagar Police Station and informed the
PSI about the incident. His oral statement was reduced into
writing. The complainant signed the same and submitted it to the
Vidyanagar Police Station.
5. Vidyanagar Police registered a case in Crime
No.244/2008 for the offences punishable under Sections 498A
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and 304B of the IPC and Sections 3 and 4 of the Dowry
Prohibition Act, and proceeded with the investigation.
6. After thorough investigation, charge sheet came to
be filed for the aforesaid offences.
7. On receipt of the charge sheet, learned Trial
Magistrate took cognizance of the aforesaid offences and
committed the matter to the Sessions Court.
8. Learned Principal District and Sessions Judge made
over the case to I Addl. District and Sessions Judge, Dharwad,
sitting at Hubballi.
9. Presence of the accused was secured and charges
were framed for the aforesaid offences. Accused pleaded not
guilty and therefore, trial was held.
10. Subsequently, on 16.08.2013 additional charges
were framed for the offence punishable under Section 302 of the
Indian Penal Code.
11. Since the accused did not plead guilty, prosecution
proceeded to examine 22 witnesses as P.W.1 to P.W.22 and
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placed on record 36 documents which were exhibited and
marked as Exs.P.1 to 36. Prosecution also placed on record 18
material objects which were marked as M.O.1 to M.O.18.
12. During the course of evidence of the prosecution
witnesses, contradictions elicited in cross-examination of
prosecution witnesses are marked as Exs.D.1 to D.3.
13. On conclusion of recording of prosecution evidence,
accused statement as is contemplated under Section 313 of the
Code of Criminal Procedure (hereinafter 'Cr.P.C.' for short) was
recorded wherein accused has denied all the incriminatory
circumstances adduced against him and did not choose to lead
any defence evidence. However, while answering question
No.159, accused has stated as under:
"ªÀÄÈvÀ¼À £À£Àß vÀAzÉAiÀÄ vÀAV ªÀÄUÀ¼ÁVzÀÄÝ, AiÀiÁªÀÅzÉà PÀgÁgÀÄ E®èzÉ CªÀ¼À£ÀÄß
ªÀÄzÀĪÉAiÀiÁVzÉÝ £ÀAvÀgÀ CªÀ½UÉ £ËPÀj PÉÆr¹ªÀ GzÉÝñÀ¢AzÀ CªÀ¼À£ÀÄß ¸ÁßvÀPÉÆÃvÀÛgÀ
¥ÀzÀ« «zÁå¨sÁå¸ÀPÉÌ ¸ÉÃj¹zÉ. £ÀAvÀgÀ CªÀ¼ÀÄ UÀ©üðtÂAiÀiÁVzÀÝjAzÀ «zÁå¨sÁå¸ÀªÀ£ÀÄß
ªÀÄÄAzÀĪÀgɸÀ°®è. PÉ£ÀgÁ ¨ÁåAPï ¸Á®ªÀ£ÀÄß £À£Àß ªÀÄzÀÄªÉ RaðUÁV ºÁUÀÆ ¸À©ìr
¸Á® ºÀ¼É ªÀÄ£ÉAiÀÄ£ÀÄß j£ÉÆêÉõÀ£ï ªÀiÁr¸À®Ä ¥ÀqÉ¢zÉÝ."
14. Thereafter, learned Trial Judge heard the arguments
of the parties and by the impugned judgment, convicted the
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accused for the aforesaid offences and sentenced as referred to
supra.
15. Being aggrieved by the same, accused is before this
Court in this appeal on following grounds:
"It is submitted that, absolutely there is no evidence to
show that accused was harassing the deceased
demanding the dowry and in that regard she has
committed suicide.
It is submitted that, conviction is based on evidence of
interested witnesses who are relatives of deceased. The
prosecution has failed to prove the genesis of the
incident by cogent and reliable evidence. Therefore the
conviction order passed by the trial court is erroneous
and contrary to the material placed on record.
The prosecution has failed to prove the case beyond
reasonable doubt as such the order of conviction is
erroneous.
It is submitted that, as per evidence of PW 1
complainant inconsistencies in the events narrated by
the there are complainant and the evidence of PW 1
ought to have disregarded. However, the trial court
without considering the inconsistencies in the evidence
of complainant has undermined the portion of evidence
which would augment the case of appellants. This
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aspect of the matter is not properly considered by the
trial court while passing the order of conviction.
It is submitted that, prosecution has not examined any
independent witness and neighbouring witness to prove
the alleged harassment and witnesses examined are all
interested and relatives of deceased. As such
considering this aspect the prosecution has miserably
failed to prove the alleged incident with sufficient
materials and independent witnesses.
It is submitted that, as per prosecution case some
elders had pacified the quarrel and had advised the
appellant not to harass the deceased. However, the
prosecution has not examined that, witnesses to prove
that, indeed earlier to committal of suicide appellant
was harassing the deceased for dowry. Therefore, there
is no evidence of record to show that, earlier to date of
incident the appellant was harassing the deceased
demanding the dowry. Therefore, court may raise
adverse presumption regarding the allegations made by
the complainant. This aspect of the matter is not
considered by the trial court. Hence, interference of this
Hon'ble Court is warranted.
It is submitted that, appellant was not responsible for
the suicide of the deceased, if fact after coming to know
about the incident the appellant immediately shifted the
deceased to hospital for treatment. Therefore, if at all
appellant was harassing the deceased as alleged by the
complainant he would have not shifted the deceased to
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hospital. Therefore, absolutely there is no evidence of
harassment. This aspect of the matter is not considered
by the trial Court.
It is submitted that, EX D1 Engagement card is perused
and considered absolutely there is no mention of giving
and taking of dowry, as such there is no evidence on
record to show that, there was harassment for demand
of dowry. Therefore, this aspect is sufficient to hold
that, there was no harassment. Hence, interference of
this Hon'ble Court is warranted.
It is submitted that records pertaining to gold
ornaments have been produced by the prosecution after
major part of evidence of witnesses was completed and
thus there is no credibility in the evidence. It is further
submitted that, MO No 5 was with the prosecution and
the same was not produced along with the charge
sheet. Therefore, the prosecution has failed to prove
that gold ornaments were indeed of the deceased. This
lacuna in the case of the prosecution is not considered
by trial Court.
It is submitted that, when the alleged incident has
taken place the appellant was in his college and not yet
his house. The case of prosecution is absolutely silent
regarding what transpired between the deceased and
appellant before the date of incident, the prosecution
has failed to prove that, earlier to the incident there
was harassment for dowry by the appellant, prosecution
has failed to produce evidence and materials to show
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that, appellant has abated the commission of offence.
Therefore, this aspect of the matter is not properly
considered by the trial court.
It is submitted that, the way in which the post mortem
and the way in which the investigation is conducted and
charge sheet is filed it clearly goes to show that, it is
done with an intention to falsely implicate this
appellant. There are serious lapses in the investigation
and these serious lapses are not at all considered by
the trial court. Therefore, this aspect of the matter
needs to be considered.
It is submitted that, if the entire case of prosecution
and the alleged incident is taken into consideration,
absolutely there is no connecting evidence. The story of
prosecution case is in different manner and the alleged
incident has taken place in different manner. The
prosecution as failed to prove that, due to earlier
incidents regarding demand of dowry the deceased has
committed suicide. Therefore, this aspect of the matter
is not considered by the trial court.
The said judgment and order of conviction and sentence
suffers from several infirmities. Hence, the same is
liable to be set aside and reversed.
The learned Judge, while passing the said judgment,
order of conviction and sentence, has not appreciated
the legal nuances involved in their proper perspective,
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which has resulted in substantial miscarriage of justice
vis-a-vis the appellant.
The appreciation of evidence by the trial Court, while
passing the impugned judgment and order of conviction
and sentence is not in its proper prospective. Hence,
the same is liable to be set aside.
It is submitted that statements of PW 1 to PW 22 have
given incoherent and contradictory answers during his
examination. Nevertheless, the learned Sessions Judge
has handpicked tits from the evidence and has
conveniently under mined that part of the evidence
which augments the case of the accused.
16. Sri.K.L.Patil, learned counsel for the appellant/
accused, reiterating the grounds urged in the appeal
memorandum, vehemently contended that the material evidence
placed on record is hardly sufficient to term the suicidal death of
Anjana as 'dowry death'. Therefore, the impugned judgment is
incorrect.
17. He would point out that the very fact that State has
not preferred any appeal with regard to acquittal of the appellant
for the offence punishable under Section 302 of the Indian Penal
Code exposes the hollowness in the case of the prosecution and
thus sought for allowing the appeal.
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18. He would also point out that in the complaint itself,
20 tholas gold is referred as customary article and therefore, in
the absence of any other proof for demand of dowry or payment
thereof, suicidal death of Anjana cannot be termed as dowry
death.
19. He would further point out that there is delay in
lodging the complaint. The information regarding the incident
was brought to the notice of P.W.2-Raghavendra B.Havaldar,
who is a police officer at about 12.30 p.m. on 14.11.2008 and he
did not choose to lodge the complaint. He informs the
complainant at about 1.45 pm which exposes the hollowness in
the case of prosecution. Thus, it is an afterthought to falsely
implicate the appellant. The complaint came to be lodged only
at 7.15 pm shows that somehow taking advantage of the
unfortunate incident, complainant and P.W.2 wanted to hook in
the present appellant in an unfortunate incident.
20. He would further contend that the evidence of
neighbours make it clear that at the time of the incident,
appellant was not available in the house. He was informed by
the milk vendor that such an incident has taken place.
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Immediately, accused rushed to his house and with a fond hope
that Anjana may be alive; he removed her from the hanging
position with the help of the neighbours and rushed to the
hospital where Anjana was declared dead.
21. Therefore, immediate conduct of the appellant soon
after the information of hanging is brought to his notice is
ignored by the learned Trial Judge while convicting the appellant
for the offence under Section 304B of the Indian Penal Code and
thus sought for allowing the appeal.
22. He would further point out that the answers elicited
in the cross-examination of P.Ws.1 and 2 is not properly
appreciated by the learned Trial Judge and therefore, the
impugned judgment is incorrect and suffers from legal infirmity
and thus sought for allowing the appeal.
23. He would further contend that if this Court while re-
appreciating the material evidence on record holds that there is
no demand of dowry, then, the suicidal death alone remains for
consideration and the material evidence on record is hardly
sufficient to hold that the appellant has abetted the commission
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of suicide, as necessary ingredients to attract the offence under
Section 109 of the Indian Penal Code is not available on record
and therefore, appellant is entitled for an order of acquittal.
24. Per contra, Sri.Praveena Y. Devareddiyavara, learned
High Court Government Pleader supports the impugned
judgment.
25. He would contend that there is a specific mention as
to demand and payment of additional dowry in the complaint as
well as in the oral testimony of P.Ws.1 and 2. Even on
13.11.2008 in the night hours, there was demand for additional
dowry and appellant has threatened the complainant that if the
demand is not met, Anjana would be done to death.
26. These aspects of the matter makes it clear that after
the marriage also, there was demand for additional dowry. The
same was not complied with by the complainant. In discussion
with P.W.2, complainant decided to pay the same on
18.11.2008. But on 14.11.2008, the incident has occurred and
therefore, death of Anjana is rightly concluded by the learned
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Trial Judge as dowry death and sought for dismissal of the
appeal.
27. He would further contend that the material evidence
available on record would clearly make out that the incident
having occurred within seven years of the marriage, prosecution
enjoys the presumption with regard to dowry death. But, to
rebut the said presumption, there is no defence evidence placed
on record and thus sought for dismissal of the appeal.
28. Sri.Hanumesh Desai, learned counsel, assisting the
prosecution, while adopting the arguments put forth on behalf of
State contended that the oral testimony of PW-1 and PW-2 and
other relatives would make it clear that additional dowry demand
was earlier met and when there was further demand, PW-1 and
PW-2 decided to pay the additional dowry amount of Rs.50,000/-
on 18.11.2008. But, earlier to 18.11.2008 itself the incident has
occurred and therefore, it is a clear case of dowry death and
sought for dismissal of the appeal.
29. Having heard the arguments of both sides this Court
perused the material on record meticulously.
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30. On such perusal of the material on record, following
points would arise for consideration:
(i) Whether the material evidence placed on record
is sufficient enough to hold that death of Anjana
was a dowry death punishable under Section
304B of the IPC?
(ii) Whether the material placed on record is
sufficient enough to hold that appellant had
subjected the deceased to physical and mental
harassment so as to attract the offences
punishable under Section 498A of the IPC?
(iii) Whether the material evidence on record would
be sufficient to sustain the conviction of the
appellant for the offence punishable under
Section 3 and Section 4 of the Dowry Prohibition
Act?
(iv) Whether the impugned judgment is suffering
from legal infirmity and perversity and thus calls
for interference?
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(v) Whether the sentence is excessive and needs
modification?
(vi) What order?
REGARDING POINT Nos.(i) to (iv)
31. In the case on hand, death of Anjana-wife of
appellant, is not in dispute. Further, death has occurred within
seven years of marriage is also not in dispute.
32. In order to bring home the guilt of the accused, apart
from complainant and his brothers - Raghavendra and Sunil
Kumar, the prosecution also examined Ravi Chitragar,
Shantaveer and Kuntappa.
33. The complainant has deposed in line with the
contents of complaint and specifically stated that after the
marriage, there was a demand of Rs.50,000/- by the appellant in
the month of July, 2008 and he had arranged Rs.50,000/- and
sent the same to Sunil Kumar (PW-3).
34. He further deposed that there was a further demand
of Rs.50,000/- and in that regard, he received a telephone call
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from the appellant during the night hours. The appellant warned
the complainant that if the additional demand of dowry was not
met with, Anjana would be done to death. He further stated that
PW-2 also received a similar call. Both of them discussed the
matter and agreed to arrange the additional dowry amount by
18.11.2008 and said decision would be informed to the
appellant.
35. However, it is the case of PW-1 that even before said
decision to pay additional dowry is communicated to the
appellant, on 14.11.2008 itself, at about 01.45 p.m., he received
a call from PW-2 intimating that Anjana and her daughter are
dead and were at the mortuary of KMC Hospital. PW-2 had
received this information from the accused himself at about
12.30 p.m. Consequently, PW-1 sought for action.
36. In his cross-examination, he answered that the
appellant is his close relative and that the additional dowry was
demanded within about two months of the marriage, which was
communicated to him over the telephone by his daughter. He
has also answered that the mobile telephone number of his sister
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is 9916770194. He also admits that from the same telephone,
Anjana had called PW-2 previous day.
37. He stated that there was no written demand for
dowry. He further stated that he had purchased the gold from
shop of Mohan Shedaji at Muddebihal. However, he had not
retained the receipt. He admitted that he did not inform the
police about the telephone call he received at 08.00 p.m. on
13.11.2008 from the appellant. He also admitted that the
appellant, the deceased and their daughter were residing on the
first floor of the house and that there were two houses on the
ground floor.
38. He also admitted that he came to know that his sister
had strangulated her daughter and he had demanded for
post-mortem examination of the child as well. He denied the
suggestion that there was no amount paid as dowry and that
whatever was given at the time of marriage were only customary
articles. He further denied the suggestion that, taking advantage
of the suicidal death of his sister, he had lodged a false
complaint against the appellant.
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39. One of brothers of the complainant - Raghavendra,
was examined as PW-2. He is a police officer and PW-3 - Sunil
Kumar is his younger brother.
40. In his examination-in-chief, PW-2 has stated that the
engagement ceremony took place in his house and at that
juncture; himself, the complainant Sunil Kumar, Virupakshappa
and others were present. He further stated that the gold
ornaments as deposed by PW-1 were given at that time. He
further deposed that for about two months, the appellant and
Anjana led a happy married life.
41. He also deposed about the demand made by the
appellant for additional dowry. He stated that about three
months prior to the incident, there was a demand for additional
dowry and the amount was sent through Sunil Kumar (PW3).
After reaching the said amount, Sunil Kumar requested the
appellant to take proper care of his sister. He also deposed about
the threatening call made by the appellant to the complainant.
Since the complainant was busy, he stated that the additional
amount would be paid on 18.11.2008.
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42. In his cross-examination, he admitted that about a
month after the marriage, he visited the house of the appellant,
where the appellant and his sister Anjana were residing and that
he last visited them about 15 days prior to the incident. He
further stated that he spoke to Anjana for the last time on
13.11.2008 between 10.30 p.m. to 11.00 p.m. He answered that
he called her on her mobile telephone bearing No.9916770194.
He admitted that the mobile telephone was fetched by PW-1,
Hanumanthappa, the complainant, but the SIM card was in her
name. He has answered that on 13.11.2008 between 08.30
p.m. to 09.00 p.m., appellant has called him thrice and he had
called him twice. He has further answered that he did not lodge
the complaint about the threatening call made by the appellant.
43. He further answered that on 14.11.2008 at about
01.40 p.m. he visited Hubballi and saw dead body of Anjana. He
specifically answered that there was no discussion between him
and his brothers before PW1 lodged the complaint with
Vidyanagara Police. He denied having stated before the
Investigation Officer vide Ex.D2. He also denied that taking
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advantage of the suicidal death, a false case has been foisted
against the appellant.
44. Another brother of the deceased is Sunil Kumar. He
has been examined by the prosecution as PW3. He also deposed
in line with PW1 and PW2. He specifically deposed that he has
handed over additional dowry of Rs.50,000/- to the appellant
about three months prior to the incident.
45. In his cross-examination, he has answered that in
the month of July-2008, he met the deceased last time. He also
admits that there are number of houses in and around the
vicinity of the place of incident.
46. Ravi Chitragar is examined as P.W.4. He also
deposed about the engagement ceremony which has taken place
in the house of P.W.2 and agreement with regard to the gold
ornaments being given to the appellant.
47. In his cross-examination, he has answered that he
has visited the house of the deceased only once after one year of
marriage. He has answered that he did not meet deceased when
he visited Muddebihal.
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48. Shantaveer is yet another person who has also
participated at the time of engagement and deposed in line with
examination-in-chief of PW4. He also deposed about payment of
additional dowry amount to appellant through PW3.
49. In his cross-examination, he admits that he came to
know about the payment of additional dowry through other
witnesses.
50. Puttappa is yet another person who participated in
the engagement. He also deposed in line with PW5 in his
examination-in-chief.
51. In his cross-examination, he admits that after the
marriage, she did not meet the deceased even once. He denies
that he is a close friend of PW1. He denies that he has deposed
falsely in order to help the complainant.
52. Dr.K.S.Itagi is examined as P.W.7 who is the autopsy
surgeon. He deposed about the conducting of post-mortem
examination on the dead body of Anjana and issuing the post-
mortem report and opinion about the cause of death.
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53. In his cross-examination, he has answered that
usually, post-mortem would not be conducted in the night hours.
He admits that there was no facility of flood light in mortuary.
But witness volunteered that there was sufficient light for
conducting the post-mortem examination.
54. The Principal of the appellant's college is examined as
P.W.8. He has deposed about suspension of appellant from
16.12.2008. He has further answered that as per the attendance
found in his college, on 14.11.2008, appellant has not attended
the college.
55. In his cross-examination, he admits that in his
college, Pre-University classes and degree classes are separated
and there are different principals for the courses. He also admits
that he is the Principal of the degree college and Mr.Bajji is the
Principal of Pre-University College. He has pleaded ignorance
about fact that on 14.11.2008, accused has taken class for pre-
university 'A' class between 9 and 10 and 'B' class between 10
and 11. He has further answered that he got the information at
about 12.30 p.m. about the incident.
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56. Assistant Commissioner who conducted the inquest
mahazar is examined as P.W.9. He deposed about conducting
the inquest mahazar.
57. In his cross-examination, he has answered that in
the mortuary, there was no special flood light, but sufficient light
was there.
58. Milk vendor who used to supply the milk to the house
of the appellant is examined as P.W.10. He deposed that as
usual, he visited the house of the appellant at about 09.30 a.m.
to 10.00 a.m. for supply of milk, but there was no response. As
such, he visited the appellant and intimated the appellant by
visiting the classroom who told him that his wife may be taking
bath and he can try again.
59. He further deposed that again, he tried but there was
no response and the same was intimated to the appellant and
appellant told that he would go home and verify. Later on, he
came to know about the suicide of Anjana and her daughter.
60. An official of the college where the appellant was
working, by name Nagaraja is examined as PW11. He has stated
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that himself and another official were in college on the day of
incident and they came to know that something has happened in
the house of the appellant. As such, they visited there and they
saw accused holding dead body of his daughter and coming out
of the house and wife of appellant was also shifted by somebody
to the hospital. They also visited the hospital and came to know
about the death. He did not further support the case of the
prosecution and therefore, he has been treated as partly hostile
witness.
61. PW12 is yet another person who had visited along
with Nagaraj-PW11. He has also been treated as partly hostile.
62. A mason by name Basavaraj is examined as PW.13.
He deposed about the police seizing the tile pieces with blood
stains and socks in his presence and drafted Ex.P.23 - mahazar.
In his cross-examination, no useful material is elicited.
63. Bheemappa, a Group - D employee of appellant
college is examined. He is one of the panch witness to Ex.P.24 -
mahazar whereunder seizure of rope and other material objects
were seized. His evidence is also formal in nature.
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64. Shivapurta is the PWD Engineer, who was present at
the time of seizure of clothes worn by the deceased in the
hospital.
65. V.N.J.Baje Naiker, is examined as P.W.18. He is the
Investigation Officer who conducted the part investigation.
66. In his cross-examination, he denies the suggestion
that he did not conduct the investigation properly and he did not
seize the material objects.
67. P.W.19 is Narayan, who is the Manager of Urban
Bank who has deposed about pledging of the gold ornaments in
his bank.
68. D.R.Desai is yet another bank official who has
granted loan to the appellant based on the pledging of the gold
ornaments to the Investigation Officer by name T.R.Raghavendra
who is examined as P.W.21.
69. He has deposed about lodging of the complaint,
registration of the FIR, sending the requisition for Tahsildar to
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conduct the inquest mahazar and handing over the further
investigation. His evidence is also formal in nature.
70. Further, Investigation Officer who has filed the
charge sheet is examined as P.W.22. He deposed about taking
up further investigation, conducting the mahazar, sending the
requisition for post-mortem examination, handing over the dead
body, completing the investigation and filing the charge sheet.
71. In his cross-examination, it has been elicited that
there was no flood light facility in the mortuary. He further
admits that house bearing No.J.10 is situated in the ground floor
of the building and J.11 on the upstairs.
72. He pleads ignorance that J.10 was occupied by the
Professor Hadgal. He denied that accused did not furnish any
voluntary statement and no recovery is made pursuant to the
voluntary statement.
73. He has answered that gold belongs to the family of
the accused and not individual property of the accused. He
deposed that the improvements that has illustrated the evidence
of P.W.1 and 2 which were not stated before him.
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74. The above evidence is sought to be re-appreciated on
behalf of the appellant.
75. Among the documentary evidence placed on record,
complaint which is the basis for criminal case is marked at
Ex.P.1, inquest mahazar is found at Ex.P.2. The photographs
marked at Exs.P.7 to 10 depict the ornaments being presented to
the appellant at the time of marriage.
76. The post mortem report is marked at Ex.P.12.
Opinion regarding weapons is marked at Ex.P.13. Ex.P.16 is the
letter written by the Principal of Jagadguru Gangadhara College
of Commerce to the Assistant Police Commissioner, Hubballi on
03.12.2008, wherein, it has been specifically mentioned that on
14.11.2008, appellant has not attended the College. These
evidence are of greater relevance for appreciation. Other
documentary evidence on record are corroborative in nature.
77. On close consideration of the above evidence on
record, in the case on hand, as per the port-mortem report, the
death of the deceased is opined as 'on account of asphyxia
consequent upon hanging'. But it is pertinent to note that five
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external injuries were also noted and on dissection of the scalp,
the autopsy surgeon has noted extravasation of blood in mid
frontal, left parietal and left occipital areas. This finding is
corresponding to the fourth injury viz., laceration injury of 2 x ¼
cm bone deep present on the top of skull which is 14 cm above
bridge of nose.
78. If a person hangs himself or herself, injury Nos.2 to 5
would not occur. It is highly unimaginable that person who
wants to end the life, hurts himself or herself that too on the
scalp region which would result in a bone deep injury.
79. Assuming that a person had tried to commit suicide
by use of some blunt material by hitting herself or himself on the
head and injury No.4 mentioned in the post mortem report has
occurred, then such person would not be in a position to hang
herself or himself.
80. Pertinently, post-mortem report depicts that all the
five injuries are ante-mortem in nature and same is deposed to
by the autopsy surgeon before the Court in unequivocal terms.
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81. No explanation whatsoever is forthcoming for those
four injuries. For the purpose of certainty, those four injuries are
culled out hereunder which read as under:
"External injuries:
1. An abrasion 3 ½ c.m. present 2 c.m. below
midpoint of right jaw.
2. An abrasion 1 ½ x ½ c.m. present 6 c.m. below
midpoint of right jaw.
3. A laseration 2 x ¼ c.m., bone deep present on
top of skull, placed 14 c.m. above bridge of nose.
4. A shallow laceration of size 1 ½ x ½ c.m. present
7 c.m. above left ear lobule.
- The injuries described are fresh and anti mortem.
- Abrasions, lacerations, contusions are reddish in
colour.
82. The autopsy surgeon has seized the clothes worn by
the deceased at the time of post-mortem examination. They are
as under:-
1. Greyish coloured nighty with flower
designs, has brownish stains at back.
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2. Pinkish lunga with brownish stains has old
tear.
3. One greenish panti.
4. One white bra with brownish stains at
back.
These are packed, labled, sealed and are
to be handed over to police along with this
report."
83. Pertinently, brownish stains are found on the nighty,
pinkish langa/petticoat and on the backside of the white bra.
These brownish colours are the dried blood stains, though
nobody has given anxious consideration to those stains.
84. Admittedly, the post-mortem examination has
commenced at 11 p.m on 14.11.2008 and injuries must have
been sustained either during the morning hours of 14.11.2008 or
night hours of 13.11.2008 as could be seen from the oral
testimony of P.Ws.1 and 2 wherein they have deposed that there
was a call made by accused to P.W.1 at about 8.45 pm stating
that, if demand of additional dowry is not met, Anjana would be
done to death and similar call has also been received by P.W.2.
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85. It is also pertinent to note that, if such an injury has
occurred on the head of the deceased, it is highly improbable
that deceased would be in a position to hang herself.
86. Nevertheless, what prevented the appellant to take
the injured to the hospital especially when suggestions are made
to the prosecution witnesses on behalf of the accused that
marital life between appellant and deceased was cordial, is not
forthcoming.
87. Moreover, blood stains found on the tile pieces and
socks marked at M.Os.9, 10 and 15 under the seizure mahazar
would be sufficient enough to establish that there was a bleeding
injury from the head and right jaw of Anjana before her death.
88. No dutiful husband would neglect such an injury
caused to his loving wife without being treated all over night or
till up to the information is received that deceased has hung
herself.
89. No explanation whatsoever is forthcoming as to what
prevented the appellant to take Anjana to the hospital and get
her treated for the injuries sustained by her, that too, on the
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vital part viz., head. If it is to be accepted that after appellant
had been to college, such an injury has occurred to the
deceased, then she would not be in a position to hang herself
because of the nature of injury.
90. It is pertinent to note the probative value of Ex.P.16
which is the letter issued by the Principal of the Pre-University
college to the Assistant Commissioner of Police, Hubballi,
wherein, it has been mentioned that appellant has not attended
the college on 14.11.2008.
91. Therefore, in the natural course of events, an
explanation is expected from the appellant as to how the injuries
are sustained by the deceased and what are the efforts made by
the appellant for treatment of such injuries as a prudent person,
more so, in view of Section 106 of the Indian Evidence Act.
92. For ready reference, Section 106 of the Indian
Evidence Act is culled out hereunder:
"106. Burden of proving fact especially within
knowledge. -- When any fact is especially within the
knowledge of any person, the burden of proving that fact
is upon him."
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93. On careful examination of the above provisions, it is
crystal clear that in the first floor of the house bearing No.J-10,
appellant, deceased and their young daughter were living.
Therefore, fact which is in special knowledge of a person namely
the accused must be brought before the Court for adjudication of
the case.
94. In other words, best evidence is shut out from the
Court by accused not offering any explanation.
95. No doubt, non-explanation would not automatically
shift the primary burden cast on prosecution and would not act
adversely to the interest of the accused. But, when prosecution
has already placed sufficient evidence on record to raise the
presumption of dowry death, prosecution can resort to not only
to Section 106 of the Evidence Act, but also duty is cast upon the
accused to dislodge the presumption available to the prosecution
under Section 113B of the Evidence Act.
96. Therefore, non-explanation as to the injury Nos.2 to
5 sustained by the deceased as is noted in the post-mortem
report vide Ex.P.12 and not taking the injured to the
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hospital, necessarily adverse inference will have to be
drawn to the defence taken by the accused that he is totally
innocent of the offences alleged against him.
97. It is in this background, the call made by the
appellant to P.W.1 on 13.11.2008 at about 8.30 p.m. needs to
be considered by this Court.
98. It is pertinent to note that P.W.1 and 2 consistently
deposed that if the additional dowry is not met, his wife -
Anjana, who is the sister of P.W.1 and 2 would be done to death.
99. Since, for the offence under Section 302 of IPC, there
is an order of acquittal and State has not preferred the appeal
against the order of acquittal, this Court need not further discuss
about the acquittal of appellant for the offence under Section 302
of the Indian Penal Code.
100. As such, this Court is now required to consider the
appeal grounds with regard to the finding which resulted in guilt
of the appellant for the offence under Sections 304B and 498A of
the Indian Penal Code.
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101. For ready reference provisions of Section 304B IPC
and 498A IPC are culled out hereunder:
"[304B. Dowry death. - (1) Where the death
of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before her
death she was subjected to cruelty or
harassment by her husband or any relative of
her husband for, or in connection with, any
demand for dowry, such death shall be called
"dowry death", and such husband or relative
shall be deemed to have caused her death.
Explanation. For the purposes of this sub-
section, "dowry" shall have the same meaning
as in section 2 of the Dowry Prohibition Act,
1961 (28 of 1961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which
may extend to imprisonment for life.]"
498A. Husband or relative of husband of a
woman subjecting her to cruelty.--
Whoever, being the husband or the
relative of the husband of a woman, subjects
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such woman to cruelty shall be punished with
imprisonment for a term which may extend to
three years and shall also be liable to
fine.Explanation.-- For the purpose of this
section, "cruelty" means--(a)any wilful conduct
which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether
mental or physical) of the woman;
or(b)harassment of the woman where such
harassment is with a view to coercing her or
any person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand.
102. What is a dowry death and what are the necessary
ingredients to term an unnatural death as dowry death is no
longer res integra. In a recent pronouncement of the Hon'ble
Apex Court in the case of Satbir Singh and another vs. State
of Haryana reported in (2021)6 SCC 1, it has been held as
under:
"12. Taking into consideration the aforesaid Law Commission
Report, and the continuing issues relating to dowry related
offences, Parliament introduced amendments to the Dowry
Prohibition Act, as well as the IPC by enacting the Dowry
Prohibition (Amendment) Act, 1986 (Act 43 of 1986). By
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way of this amendment, Section 304-B IPC was specifically
introduced in the IPC, as a stringent provision to curb the
menace of dowry death in India.
15. Considering the significance of such a legislation, a strict
interpretation would defeat the very object for which it was
enacted. Therefore, it is safe to deduce that when the
legislature used the words, "soon before" they did not mean
"immediately before". Rather, they left its determination in
the hands of the courts. The factum of cruelty or harassment
differs from case to case. Even the spectrum of cruelty is
quite varied, as it can range from physical, verbal or even
emotional. This list is certainly not exhaustive. No
straitjacket formulae can therefore be laid down by this
Court to define what exactly the phrase "soon before"
entails.
17. Therefore, courts should use their discretion to
determine if the period between the cruelty or harassment
and the death of the victim would come within the term
"soon before". What is pivotal to the above determination, is
the establishment of a "proximate and live link" between the
cruelty and the consequential death of the victim.
18. When the prosecution shows that "soon before her death
such woman has been subjected by such person to cruelty or
harassment for, or in connection with, any demand for
dowry", a presumption of causation arises against the
accused under Section 113-B of the Evidence Act.
Thereafter, the accused has to rebut this statutory
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presumption. Section 113-B of the Evidence Act reads as
under:
"113-B. Presumption as to dowry death.--When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person
to cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation.--For the purposes of this section,
"dowry death" shall have the same meaning as in
Section 304-B of the Indian Penal Code (45 of 1860)."
20. Therefore, once all the essential ingredients are
established by the prosecution, the presumption under
Section 113-B of the Evidence Act mandatorily operates
against the accused. This presumption of causality that
arises can be rebutted by the accused.
24. The second contentious part relating to Section 304-B
IPC is that it does not take a pigeonhole approach in
categorising death as homicidal or suicidal or accidental, as
was done earlier. The reason for such non-categorisation is
due to the fact that death occurring "otherwise than under
normal circumstances" can, in cases, be homicidal or suicidal
or accidental. However, Section 304-B IPC endeavours to
also address those situations wherein murders or suicide are
masqueraded as accidents.
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25. Therefore, if all the other ingredients of Section 304-B
IPC are fulfilled, any death whether caused by burns or by
bodily injury or occurring otherwise than under normal
circumstances shall, as per the legislative mandate, be called
a "dowry death" and the woman's husband or his relative
"shall be deemed to have caused her death" unless proved
otherwise. The section clearly specifies what constitutes the
offence of dowry death and also identifies the single offender
or multiple offenders who has or have caused the dowry
death [refer Maya Devi v. State of Haryana [Maya
Devi v. State of Haryana, (2015) 17 SCC 405 : (2018) 1 SCC
(Cri) 768] , Shanti v. State of Haryana [Shanti v. State of
Haryana, (1991) 1 SCC 371 : 1991 SCC (Cri) 191] .]
38. At the cost of repetition, the law under Section 304-B
IPC read with Section 113-B of the Evidence Act can be
summarised below:
38.1. Section 304-B IPC must be interpreted keeping in mind
the legislative intent to curb the social evil of bride burning
and dowry demand.
38.2. The prosecution must at first establish the existence of
the necessary ingredients for constituting an offence under
Section 304-B IPC. Once these ingredients are satisfied, the
rebuttable presumption of causality, provided under Section
113-B of the Evidence Act operates against the accused.
38.3. The phrase "soon before" as appearing in Section 304-
B IPC cannot be construed to mean "immediately before".
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The prosecution must establish existence of "proximate and
live link" between the dowry death and cruelty or
harassment for dowry demand by the husband or his
relatives.
38.4. Section 304-B IPC does not take a pigeonhole
approach in categorising death as homicidal or suicidal or
accidental. The reason for such non-categorisation is due to
the fact that death occurring "otherwise than under normal
circumstances" can, in cases, be homicidal or suicidal or
accidental."
103. This Court gainfully quotes the principles of law
enunciated by the three Judge Bench decision of the Hon'ble
Apex Court in the case of Devender Singh v. State of
Uttarakhand (2022) 13 SCC 82 wherein, it has been held as
under:
12. Section 304-BIPC read along with Section 113-B of
the Evidence Act, 1872 makes it clear that once the
prosecution has succeeded in demonstrating that a woman
has been subjected to cruelty or harassment for or in
connection with any demand for dowry soon before her
death, a presumption shall be drawn against the said
persons that they have caused dowry death as
contemplated under Section 304-BIPC. The said
presumption comes with a rider inasmuch as this
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presumption can be rebutted by the accused on
demonstrating during the trial that all the ingredients of
Section 304-BIPC have not been satisfied. [Ref. : Bansi
Lal v. State of Haryana [Bansi Lal v. State of Haryana,
(2011) 11 SCC 359 : (2011) 3 SCC (Cri) 188] , Maya
Devi v. State of Haryana [Maya Devi v. State of Haryana,
(2015) 17 SCC 405 : (2018) 1 SCC (Cri) 768] , G.V.
Siddaramesh v. State of Karnataka [G.V.
Siddaramesh v. State of Karnataka, (2010) 3 SCC 152 :
(2010) 2 SCC (Cri) 19] and Ashok Kumar v. State of
Haryana [Ashok Kumar v. State of Haryana, (2010) 12 SCC
350 : (2011) 1 SCC (Cri) 266] .]
104. So also, in Aluri Venkata Ramana v. Aluri
Thirupathi Rao reported in 2024 SCC OnLine SC 5473,
parameters required to maintain conviction for the offence under
Section 498A IPC is discussed, which reads as under:
"12. In the judgment of U. Suvetha v. State, (2009)6
SCC 757, this Court outlined the necessary ingredients
required to establish an offence under Section 498A of
the IPC, as follows:
"7. Ingredients of Section 498-A of the Penal
Code are:
(a) The woman must be married;
(b) She must be subjected to cruelty or
harassment; and
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(c) Such cruelty or harassment must have
been shown either by husband of the woman
or by the relative of her husband."
105. Keeping in the back ground the above settled
principles of law, in order to appreciate the arguments put forth
on behalf of the appellant that whether Anjana died a suicidal
death and appellant is not responsible for suicidal death
simpliciter and appellant has not been responsible for the
abetment of the suicidal death of Anjana, it is to be noted that
no effort is made by the appellant to shift the injured to the
hospital for the treatment of scalp and right jaw. Assuming that
injury is sustained soon after the appellant left for duty as is
contended, then who cleaned the blood stains in the house is a
question that remains unanswered. Therefore, it should be
inferred that before leaving the house in the guise of attending
the duty, appellant must have cleaned the blood stains in the
house.
106. Few blood stains that were seized which were found
on the tile pieces marked as M.Os.9 and 10, were already dried
up. Since the injuries are ante mortem in nature, some
explanation was expected from the appellant and in the absence
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of any explanation whatsoever either while answering the
incriminatory circumstances which were put to him in the
accused statement or by placing necessary defence evidence, the
presumption as to dowry death is to be applied as is found in
Section 113B of the Evidence Act.
107. More so, it is the consistent say of P.Ws.1 and 2 that
in the month of July, there was a demand of sum of Rs.50,000/-
by the appellant which was met by P.W.1 by sending the money
through P.W.3 - Sunil Kumar.
108. Further, the gold ornaments which were given at the
time of marriage (accepting the arguments of learned counsel for
the appellant that it is customary article) have already been
pledged by the accused and he had borrowed the loan.
109. Appellant being the lecturer in the college, drawing
handsome salary, why at all, he borrowed the loan, is a question
that again needs to be answered by the appellant.
110. However, with regard to question No.159, at the time
of recording the accused statement, he has answered as under:
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"ªÀÄÈvÀ¼À £À£Àß vÀAzÉAiÀÄ vÀAV ªÀÄUÀ¼ÁVzÀÄÝ, AiÀiÁªÀÅzÉà PÀgÁgÀÄ E®èzÉ CªÀ¼À£ÀÄß
ªÀÄzÀĪÉAiÀiÁVzÉÝ £ÀAvÀgÀ CªÀ½UÉ £ËPÀj PÉÆr¹ªÀ GzÉÝñÀ¢AzÀ CªÀ¼À£ÀÄß ¸ÁßvÀPÉÆÃvÀÛgÀ
¥ÀzÀ« «zÁå¨sÁå¸ÀPÉÌ ¸ÉÃj¹zÉ. £ÀAvÀgÀ CªÀ¼ÀÄ UÀ©üðtÂAiÀiÁVzÀÝjAzÀ «zÁå¨sÁå¸ÀªÀ£ÀÄß
ªÀÄÄAzÀĪÀgɸÀ°®è. PÉ£ÀgÁ ¨ÁåAPï ¸Á®ªÀ£ÀÄß £À£Àß ªÀÄzÀÄªÉ RaðUÁV ºÁUÀÆ ¸À©ìr
¸Á® ºÀ¼É ªÀÄ£ÉAiÀÄ£ÀÄß j£ÉÆêÉõÀ£ï ªÀiÁr¸À®Ä ¥ÀqÉ¢zÉÝ."
111. Why and what is the amount of loan borrowed is not
explained by appellant. Moreover, marriage has taken place in
the year 2005 and loan has been made in the bank much later.
Marriage expenses are met by the complainant's family. Even
assuming that the appellant had borrowed the loan, there could
be deduction from his salary and what happened to his salary is
not forthcoming more so, when he is residing in the quarters
provided by the college.
112. For a family consisting of three persons namely the
appellant, his wife and a small child, what were the expenses
that was required to be met and how much loan amount he had
borrowed is not spelt out by the appellant. Therefore, the
answer offered by the appellant that he has pledged the gold and
taken loan for the purpose of liquidating the loan cannot be
believed.
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113. Likewise, with regard to repairing the old house, no
details are forthcoming as to the expenses incurred or from
whom the amount was borrowed for carrying out such repairs.
Further, no relative of the accused has been examined to
establish that he had borrowed any loan for his marriage
expenses or for repairing the old house.
114. It is pertinent to note that PW1 to PW5 have
consistently deposed regarding the payment of dowry. PW1 to
PW3 have specifically deposed about meeting the demand made
by the appellant in July 2011 in a sum of Rs.50,000/-. The
telephone calls along with the telephone numbers were placed on
record as Ex.P.36, and the appellant did not choose to seriously
contest the said portion of the depositions of PW.1 to PW.3.
115. Merely on the ground that PW2 is a police officer, it
cannot be presumed that he has filed a false case against the
appellant.
116. What compelled Anjana to commit suicide remains
unanswered by the appellant, especially, if everything was
allegedly cordial at the matrimonial home, that too by killing her
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young daughter. Moreover, the post-mortem of the child was
not conducted despite the request made by the complainant.
117. These aspects of the matter cast serious doubt on
the defence put forth by the accused.
118. Further, since the death occurred within seven years
of the marriage, as rightly contended by the prosecution, it is
entitled to the presumption under Section 113B of the Indian
Evidence Act.
119. No doubt, this is a rebuttable presumption.
120. However, no defence evidence has been placed on
behalf of the accused to rebut the same. The accused has neither
examined himself nor any other witness.
121. Much emphasis has been laid by the appellant on the
non-examination of neighbours. If that were so, nothing
prevented the appellant from examining Professor Hadagal, who
was residing in J-10, the ground floor of the house where the
incident occurred, by way of rebuttal evidence.
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122. Further, when the milk vendor informed the appellant
about the door not being opened by the wife of appellant, it was
incumbent upon the appellant to immediately rush home and
ascertain what had transpired, especially when his wife had
sustained injuries.
123. Absolutely no explanation is forthcoming from the
appellant regarding the ante-mortem injuries found on the dead
body. No cross-examination was conducted on behalf of the
appellant with respect to the injuries found on the head region,
as noted in the post-mortem report.
124. When these aspects are viewed cumulatively, this
Court is of the considered opinion that the material evidence on
record is sufficient to establish that Anjana died a dowry death.
125. In the absence of any plausible explanation from the
appellant regarding her death, the finding recorded by the
learned Trial Judge holding the accused guilty of the offences
punishable under Sections 498A and 304B of the Indian Penal
Code is justified.
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126. As such, this Court finds no perversity, illegality, or
capriciousness in the findings recorded by the learned Trial
Judge.
127. Accordingly, Point Nos.(i) and (ii) are answered in the
affirmative and point Nos.(iii) and (iv) in the negative.
128. REGARDING POINT NO.(v): The learned Trial
Judge has sentenced the appellant as referred to supra
considering the attendant facts and circumstances of the case. In
particular, the appellant has not placed any mitigating
circumstances whatsoever and failed to provide medical
treatment to his wife after she sustained injuries on
13/14.11.2008. This Court finds no valid reason to interfere with
the sentence imposed.
129. Moreover, in the absence of any appeal filed by the
State seeking enhancement of the sentence, no enhancement
can be made in an appeal preferred by the appellant as is held in
the case of Sachin vs. State of Maharashtra reported in
(2025)9 SCC 507. Accordingly, Point No.4 is answered in the
negative.
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130. REGARDING POINT No.(vi): In view of the
findings of this Court on points Nos.1 to 4, the following order is
passed:
ORDER
i. The appeal is devoid of merit and is accordingly
dismissed.
ii. The appellant is directed to surrender before the
Trial Court on or before 10.03.2026 to serve
the remaining part of the sentence.
iii. The Office is directed to return the Trial Court
records along with a copy of this Order
forthwith.
Sd/-
(V.SRISHANANDA)
JUDGE
kcm,RHR,CLK,KAV,AC
CT-CMU
LIST NO.: 1 SL NO.: 85
