R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE17H DAY OF FEBRUARY, 2022 PRESENT THE HON’BLE MR.JUSTICE K.SOMASHEKAR AND THE HON’BLE MR. JUSTICE P.N.DESAI CRIMINAL APPEAL NO.1140 OF2016CONNECTED WITH CRIMINAL APPEAL NO.1677 OF2016CRL.A.No.1140 OF2016 BETWEEN: Sri. Mallikarjuna S/o Shankarappa Aged about 66 years R/o Hayikal Chitradurga District. ...Appellant (By Sri. H.N. Shashidhara – Sr. Counsel for Smt. B.A. Sujatha - Advocate) AND:
1. Sri. Vasantha @ Vasanthakumar M.P. S/o. Parameshwarappa Aged about 34 years 2. Sri. Parameshwarappa S/o. Siddappa Aged about 68 years 2 3. Smt. Girijamma W/o. Parameshwarappa Aged about 61 years All are residing at Kubaturu Village Soraab Taluk Shivamogga District – 571112.
4. State by Anavatti Police Station Rep. by Public Prosecutor High Court of Karnataka Bangalore – 560 001. ...Respondents (By Sri.Umesh P.B – Advocate for Sri. R.B. Deshpande – Advocate for R-2 and R-3; Smt. K.P. Yashodha – HCGP for R-4; Vide court order dated 06.01.2022 and 24.01.2022 appeal against R-1 stands abated) This Criminal Appeal filed under Sec.372 of Criminal Procedure Code, by the Advocate for the appellant praying to set aside the judgment of acquittal in S.C.No.55/2014 on the file of III-Addl. Sessions Judge at Shivamogga and convict the respondent for the offence punishable under Sections 498-A, 304-B, 302 r/w Sec.34 of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961 and allow the appeal by convicting the respondents. 3 CRL.A.No.1677 OF2016 BETWEEN: State by Anavatti Police Station Rep. by State Public Prosecutor High Court Building Bengaluru – 1. ...Appellant (By Smt. K.P. Yashodha – HCGP) AND:
1. Vasantha @ Vasanthakumar M.P. S/o. Parameshwarappa Aged about 35 years Agriculturist R/o Kubaturu Village Sorab Taluk – 577429.
2. Parameshwarappa .M S/o. Siddappa Aged about 68 years Retired Teacher R/o Kubaturu Village Sorab Taluk – 577429.
3. Smt. Girijamma W/o. Parameshwarappa Aged about 60 years Household work R/o Kubaturu Village Sorab Taluk – 577429. ...Respondents (By Sri. Umesh P.B. – Advocate for Sri. R.B. Deshpande – Advocate for R-2 and R-3; Vide court order dated 06.01.2022, appeal against R-1 stands abated) 4 This Criminal Appeal filed under Sec.378(1) and (3) of Criminal Procedure Code, by the Advocate for the appellant praying to i) grant leave to appeal against the judgment and order dated 10.02.2016, passed by the III-Addl. Sessions Judge, Shivamogga in S.C.No.55/2014, acquitting the respondent – accused for the offence punishable under Sections 498-A, 304-B, 302 r/w Sec. 34 of I.P.C., and Sections 3 & 4 of Dowry Prohibition Act, 1961; ii) set aside the impugned judgment and order dated 10.02.2016, passed by the III-Addl. Sessions Judge, Shivamogga in S.C.No.55/2014, acquitting the respondent – accused for the offence punishable under Sections 498-A, 304-B, 302 r/w Sec. 34 of I.P.C., and Sections 3 & 4 of Dowry Prohibition Act, 1961 by allowing this appeal ; and iii) convict and sentence the accused – respondent for the offences punishable under Sections 498-A, 304-B, 302 r/w Sec. 34 of I.P.C., and Sections 3 & 4 of Dowry Prohibition Act, 1961. These criminal appeals coming on for hearing this day, K. Somashekar .J delivered the following:
5.
JUDGMENT
Crl.A.No.1140/2016 has been preferred by the appellant namely Mallikarjuna S/o. Shankarappa who was the Prosecuting Witness before the Trial Court, challenging the judgment rendered by the Trial Court in S.C.No.55/2014 dated 10.02.2016 acquitting the accused for offences punishable under Sections 498A, 304B, 302 read with Section 34 of the IPC, 1860 besides Sections 3 and 4 of the DP Act, 1961.
2. The appeal in Crl.A.No.1677/2016 has been preferred by the appellant / State challenging the aforesaid acquittal judgment in S.C.No.55/2014 for the offences stated supra. But both these appeals have been filed challenging the acquittal judgment rendered by the Trial Court seeking consideration of the grounds urged in these appeals respectively, and seeking to set aside the acquittal judgment rendered by the Trial Court in S.C.No.55/2014 dated 10.02.2016 and to 6 convict the accused for the aforesaid offences which were leveled against the accused persons.
3. Heard the learned Senior Counsel Shri H.N. Shashidhara for the appellant in Crl.A.No.1140/2016 who is representing the counsel Smt. B.A. Sujatha who is on record and so also the learned HCGP for the appellant / State Smt. K.P. Yashodha in Crl.A.No.1677/2016 and so also the learned counsel Shri Umesh P.B. for Respondent Nos.2 and 3 in both these appeals and so also the learned HCGP for Respondent No.4 in Crl.A.No.1140/2016. Perused the impugned judgment of acquittal rendered by the Trial Court in S.C.No.55/2014 dated 10.02.2016 consisting of the evidence of PW-1 to PW-15 and so also the documents at Exhibits P1 to P24 inclusive of MO-1 to MO-9 and so also the evidence of DW-1 Dr. Shivakumar and contradictory statement of PW-1 marked at Exhibit D1. 7
4. Factual matrix of these appeals are as under: It transpires from the case of the prosecution that Accused No.1 namely Vasantha @ Vasanthakumar M.P. had married the deceased Smt. Sridevi and their marriage was performed on 21.04.2007 as per the customs prevailing in their society. During her marriage they had provided with dowry and subsequent to her marriage with the accused, Smt. Sridevi had led a happy marital life in her matrimonial house. It is stated that Sridevi was residing along with her husband and parents-in-law at Kubaturu village, Soraba Taluk. It is alleged that after their marriage, her husband including her in-laws had started demanding Sridevi to bring additional dowry from her parental home. In furtherance of their common intention, it is stated that her husband / Accused No.1, parents-in-law / Accused Nos.2 and 3 started subjecting Sridevi to physical as well as mental harassment. The accused are the respondents herein respectively in both these appeals. 8 However, Respondent No.1 having died during the pendency of this appeal, the appeal against Respondent No.1 namely Vasantha @ Vasanthakumar M.P. stands abated. However, it is necessary to state that due to the physical as well as mental harassment meted out by Accused Nos.1 to 3, Sridevi is said to have committed suicide by consuming poison as on 24.08.2012 at around 7.30 p.m. in her matrimonial house. Her death has occurred within a span of 7 years from the date of her marriage and it is alleged that prior to her death, all the accused with a common intention had subjected her to physical as well as mental harassment in terms of cruelty. The deceased Sridevi who is none other than the wife of Accused No.1 Vasantha @ Vasanthakumar had committing suicide by consuming poison due to the harassment meted out to her. Hence, on filing of a complaint, criminal law was set into motion stating that the accused have committed the murder of the deceased Smt. Sridevi for offences under Sections 304B, 302 and 9 498A of IPC, 1860 and so also offences under Sections 3 and 4 of the DP Act, 1961.
5. In pursuance of the receipt of the complaint at Exhibit P6, criminal law was set into motion by recording an FIR as per Exhibit P20 for the offences reflected in the FIR. Thereafter, the Investigating Officer had taken up the case for investigation and done the investigation and laid a charge-sheet against the accused for the offences reflected in the FIR. Charge- sheet consists of Spot Panchanama Exhibit P1, Seizure panchanama at Exhibits P2 and P3, Inquest mahazar at Exhibit P4 and another Seizure Mahazar at Exhibit P5 and also recorded the statements of witnesses inclusive of securing the Invitation Card at Exhibit P7 and marrriage photos at Exhibit P8. The dead body of Sridevi was subjected to photos at Exhibit P9. These are all the material collected by the I.O. who laid a charge-sheet against the accused before the committal court. 10
6. Subsequent to laying the charge-sheet by the I.O., the Committal Magistrate, that is the Civil Judge and JMFC, Soraba in Shivamogga District, committed the case to the Court of Sessions in C.C.No.598/2012. Accordingly, the case in S.C.No.55/2014 was registered. Subsequent to assigning of the aforesaid case in S.C.No.55/2014, the accused were secured and engaged the services of a counsel to defend their case. The Trial Court on hearing the arguments of the learned Public Prosecutor for the State and Defence counsel for the accused, framed charges against the accused for the offences punishable under Sections 498A, 304B, 302 read with Section 34 of the IPC, 1860 besides Sections 3 and 4 of the DP Act, 1961 whereby the accused did not plead guilty but claimed to be tried. Accordingly, plea of the accused were recorded separately. Subsequent to framing of charge, the prosecution had let in evidence by subjecting to examination PW-1 to PW-15 and so also got marked several documents at 11 Exhibits P1 to P24 inclusive of materials which have been seized and marked as MO-1 to MO-9 and so also on the part of the defence side examined DW-1 namely Dr. Shivakumar. The further statement of PW-1 which is stated as re-statement is marked as Exhibit D1 and this statement has been given by her father.
7. Subsequent to closure of the evidence of the prosecution, the accused were examined as required under Section 313 Cr.P.C. for enabling them to answer the incriminating evidence appearing against them. But the accused had denied the truth of the evidence of the prosecution adduced so far. Subsequent to recording the 313 statement of the accused, DW-1 has been subjected to examination relating to Smt. Sridevi, the wife of accused No.1. After closure of the evidence on the part of the prosecution which consisted of the incisive cross-examination on the part of the defence side and on analyzing the evidence of PW-1 to PW-15 12 and the evidence of DW-1 Shivakumar and on close scrutiny of Exhibits P1 to P24 and so also the material objects that is MO-1 to MO-9 and on being convinced with the evidence that the prosecution did not facilitate worthwhile evidence relating to the offences lugged against the accused under the IPC, 1860 and so also offences under Sections 3 and 4 of the DP Act, consequently rendered an acquittal judgment by assigning sound and so also acceptable reasons. It is this judgment which is under challenge in this appeal by urging various grounds.
8. Learned Senior counsel Shri H.N. Shashidhara for the appellant in Crl.A.No.1140/2016 and so also the learned HCGP for Respondent No.4 and so also the learned HCGP in Crl.A.No.1677/2016 have taken us through the evidence of PW-1 to PW-15. It is contended that the Trial Court had rendered an acquittal judgment which is opposed to law and facts in issue relating to 13 the allegation made against the accused as well as the circumstances and the probabilities of the case insofar as the death of the deceased Smt. Sridevi. The Trial Court had committed an error by rendering an acquittal judgment insofar as the offences relating to physical as well as mental cruelty extended by the accused to the deceased which led to her death within a span of 7 years from the date of her marriage. She has been subjected to cruelty in terms of physical as well as mental harassment and subsequently, the accused persons have proceeded to commit the murder of the deceased Sridevi by administering poison to her and the said murder had taken place within a span of 7 years from the date of her marriage with Accused No.1 as according to the allegation made in the complaint and even in the substance of the charge-sheet. Sections 3 and 4 of the DP Act, 1961 even though the evidence has been let in on the part of the 14 prosecution, but the Trial Court had rendered an acquittal judgment. Therefore, it needs for re- appreciation of the evidence and to re-visit the acquittal judgment rendered by the Trial Court. If not, it would result in a miscarriage of justice.
9. The second limb of arguments advanced by the aforesaid senior counsel inclusive of the learned HCGP for the State respectively in both appeals, is that the Trial Court has committed a grave error in considering the oral statement of Dr. Shivakumar who is examined as DW-1. Without any documents in support of the fact that the deceased Sridevi had approached the said Doctor for abortion of second child, can only be considered to be imaginary. The Public Prosecutor has not subjected to cross-examination the said Doctor in order to substantiate the said fact, which has rendered fatal to the case of the prosecution. Hence, it has been a ground for rendering an acquittal judgment by the 15 Trial Court for the offences lugged against the accused, but it requires for re-appreciation of evidence.
10. Lastly, the learned Senior counsel for the appellant / prosecuting witness in Crl.A.No.1140/2016 contends that if the deceased intended to abort her second child, she would have taken precaution earlier itself either to avoid pregnancy or to abort at an early stage. As she was at her fourth month of pregnancy, the contention that she had gone to the Doctor to abort her child at this stage, is far from truth. The Trial Court has not looked into this aspect of the matter. Therefore, it requires to re-appreciate the evidence and also equally to re-visit the impugned judgment of acquittal rendered by the Trial Court. PW-1 and PW-2 are material witnesses and their evidence are suffice to hold that the prosecution has proved the guilt of the accused in respect of each one of the offences as stated and also framing of charge against the accused. But the Trial 16 Court capriciously, without looking into the vital evidence on the part of the prosecution has acquitted the accused of the offences under the IPC, 1860 that too for offences under Section 304B of the IPC, whereby Sridevi has died within 7 years from the date of her marriage due to physical as well as mental harassment extended by Accused Nos.1 to 3 and so also demanding her to bring additional dowry from her parental home.
11. Whereas these appeals are filed challenging the acquittal judgment rendered by the Trial Court in S.C.No.55/2014. But contention made by the State in Crl.A.No.1677/2016 by urging various grounds and so also the grounds urged by the appellant / prosecuting witnesses in Crl.A.No.1140/2016 and contention made in both these appeals are one and the same whereby challenging the acquittal judgment. Therefore, the learned Senior counsel and also the learned HCGP for the State seek to allow these appeals respectively and to 17 set aside the judgment of acquittal rendered by the Trial Court in S.C.No.55/2014 dated 10.02.2016 and thereby to convict the accused / Respondent Nos.2 and 3 respectively in respect of the offences under Section 498A, 304B, 302 read with Section 34 of the IPC, 1860 and so also for offences under Sections 3 and 4 of the DP Act, 1961.
12. Learned counsel Shri Umesh P.B. for Respondent Nos.2 and 3 in both these appeals, has advanced his arguments counter to the arguments advanced by the learned Senior counsel for the appellant / prosecuting witness in Crl.A.No.1140/2016 and so also the learned HCGP for the State respectively. But criminal law was set into motion on receipt of a complaint as per Exhibit P6 and based upon the complaint made by the complainant, the criminal prosecution has been launched by recording an FIR as per Exhibit P20 and drew the map of scene of crime as 18 per Exhibit P21 and so also drew the seizure mahazars at Exhibit P2, P3 and P5 inclusive of Inquest mahazar at Exhibit P4 held over the dead body. But Exhibit P11 to Exhibit P16 are the statements and these statements have been given by the witnesses during the course of investigation carried out by the I.O. But they did not support the case of the prosecution, which is contrary to the allegation made in the complaint at Exhibit P6 and so also contrary to the fulcrum of the seizure mahazar at Exhibits P2, P3 and P5 respectively and so also the contents given in the spot panchanama at Exhibit P1.
13. Learned counsel for the respondents / accused has taken us through the evidence of PW-1 to PW-4 and their evidence on the part of the prosecution reflects that Accused No.1 was constructing a house at Anavatti. Further, it is alleged that the accused were insisting the deceased to bring some money from her 19 parents house. But there is no evidence to show that the accused demanded money from her parents house as dowry and though evidence has been let in, it reflects that the accused persons who had undertaken construction of their residential house, they had taken monetary assistance from PW-2. PW-1, PW-2 and PW-4 have stated in their evidence have stated that the accused persons had administered poison to Sridevi as alleged and that they have noticed injuries on the great toe of Sridevi and they have also deposed that there was bleeding from ear and nose of Sridevi. The Doctor has also deposed that if a person drags on a hard surface, the injury mentioned in the PM report at Exhibit P17 as regards the injuries inflicted over Sridevi could have been caused. Further, if a person rubs his legs on a hard surface, the injury mentioned in the PM report could be caused. Except the abrasion measuring 3cm x 2 cm over the dorsum of tip of left great toe and abrasion measuring 1cm x 1cm over tip of dorsum of 20 left second toe, the Doctor had not noticed any other injuries. This observation was also made by the Trial Court while rendering an acquittal judgment. But there is no sufficient material evidence to show that the accused persons had forcibly administered poison to Smt. Sridevi or that they had extended physical as well as mental harassment to her as contended by the prosecution and even contended by the appellant in Crl.A.No.1140/2016 in the connected appeal.
14. Lastly, the learned counsel has taken us through the ingredients of each one of the offences under Section 498A IPC relating to physical as well as mental cruelty and even causing the death of Sridevi within 7 years from the date of her marriage relating to dowry death which is to be termed as having committed murder by accused persons attracting offences under Section 302 IPC with common intention under Section 34 of the IPC. But the prosecution even though let in 21 plethora of evidence and even got marked several documents and even taken contention that the accused have forcibly administered poison to the deceased Sridevi and had subjected her to cruelty or harassment in connection with demand for dowry, the same has not been proved beyond reasonable doubt. Even the Court having presumptive value under Section 113B of the Indian Evidence Act, 1872. Merely because Accused No.1 / Vasantha @ Vasanthakumar M.P. and deceased Smt. Sridevi had taken financial assistance for construction of their house, it cannot be said that accused had extended physical as well as mental harassment to her by demanding her to bring dowry from her parents house. There is no evidence to indicate that except the close relatives that is her parents and sister, none of the independent witnesses have come forward to let in evidence to prove the guilt of the accused and that the accused was cause for the death of the deceased and that he had administered 22 poison forcibly to her and caused her death. These are the evidence that has been appreciated by the Trial Court to come to the conclusion that the prosecution has miserably failed to prove the guilt of the accused and consequently rendered an acquittal judgment by assigning justifiable reasons or even sound reasons. Therefore, under this appeal it does not arise to call for any interference and there are no warranting circumstances to interfere with the acquittal judgment rendered by the trial Court. On all these premise, learned counsel for Respondent Nos.2 and 3 in these appeals seeks for dismissal of these appeals as being devoid of merits and to thereby confirm the acquittal judgment rendered by the Trial Court.
15. In the context of contentions made by the learned Senior counsel for the appellant in Crl.A.No.1140/2016 and so also the learned HCGP for the appellant / State in Crl.A.No.1677/2016 and for 23 Respondent No.4 in Crl.A.No.1140/2016 and more so the stout arguments of the learned counsel for respondent Nos.2 and 3 / accused in both the appeals, it is relevant to refer to the oral and documentary evidence on record. PW-1, PW-2 and PW-4 who have been subjected to examination on the part of the prosecution, are said to be material witnesses according to the contention made by the prosecution. They are alleged to have stated that accused had given physical as well as mental harassment to the deceased Sridevi because of which reason she died within a span of 7 years from the date of her marriage. They have further stated that Accused No.1 / Vasantha @ Vasanthakumar M.P. was addicted to bad vices and in order to meet his expenses, he had demanded his wife Sridevi to bring money from her parental home and also is alleged to have beaten her. But in the cross-examination, it is extracted that Accused No.1 was working in a cable unit and also 24 doing agricultural work and he was having substantial income. Therefore, the evidence that the accused No.1 had given physical as well as mental harassment to Sridevi and that he was addicted to bad vices as alleged by the prosecution, cannot have any credentiality and no weight age has been given to it by the Trial Court as well. According to the evidence of PW-1, 2 and 4, they have stated that during her marriage with Accused No.1, Sridevi’s parents had provided dowry in terms of gold ornaments. But having gone through the complaint at Exhibit P-6, and even on a close scrutiny of the allegation made in the complaint, it does not specifically reflect that the complainant has given dowry in terms of gold jewellery to Accused No.1 / Vasantha @ Vasanthakumar M.P. during the marriage of the deceased Smt. Sridevi.
16. There is no dispute about the marriage of the deceased with Accused No.1 / Vasantha @ Vasanthakumar M.P. in the year 2007 and the death of 25 Sridevi as on 24.08.2012. But there is a dispute with regard to the allegation that the accused were extending physical as well as mental harassment to her and in furtherance of that they had committed her murder by forcefully administering poison to Sridevi and thus she had died within a span of 7 years from the date of her marriage. But the concept of Section 304B of the IPC, 1860 soon before her death has to be established by the prosecution by facilitating worthwhile evidence. Merely because offences under Section 304B of IPC whereby death had occurred within a span of 7 years from the date of her marriage have been leveled against the accused, unless the ingredients of the said section is proved by the prosecution by adducing worthwhile evidence, the same cannot be given credentiality. So many witnesses on the part of the prosecution have been subjected to examination to prove the offences under Section 498A IPC and in the instant case, Section 26 302 of the IPC was also lugged against Accused No.1 / Vasantha @ Vasanthakumar M.P. Accused Nos.2 and 3 are the parents of Accused No.1 and they are the in-laws of deceased Smt. Sridevi. But accused No.1 is no more and he died during the pendency of the appeal and consequently the appeal against Accused No.1 / Vasantha @ Vasanthaumar M.P. has stood abated in pursuance of Section 394(2) of the Cr.P.C.
17. PW-1 / Mallikarjuna and PW-2 / Shanthamma are the parents of the deceased Smt. Sridevi. But PW-3 who is a relative of her and PW-4 is her sister. Even at a cursory glance of the evidence of PW-1 and PW-2 who have stated in their evidence during her marriage, they have provided dowry in terms of gold jewellery wherein 10 tolas of gold was given to their daughter. According to them, at the time of their marriage, Sridevi was working in MESCOM as a 27 Lineman in Shikaripura Taluk. But after the marriage, she had taken transfer to Anavatti. PW-1 and PW-2 had stated that after their daughter’s marriage, she was residing with her husband who is Accused No.1, at Kubaturu, Anavatti along with Accused Nos.2 and 3. But accused No.1 had no avocation. Since he was not having job he was also under the habit of bad vices such as playing cards and also developed the habit of consuming alcohol. In order to meet his bad vices, he used to demand his wife to bring dowry from her parents house. If she refused to fulfill his demand, he used to beat her. But evidence of PW-1 is that on 24.08.2012 at noon hours his daughter Sridevi called him through phone and informed that accused were giving some sort of torture in order to meet their demands but came to know that at around 9.30 p.m. on the same day, that their daughter Sridevi lost her breath. They went to the Primary Health Centre on 25.08.2012 at around 6.00 a.m. In the meanwhile, in 28 Primary Health Centre, except the police, noone was present and they have noticed that there was bleeding from her ear and nose. He has stated that he also came to know that accused persons had beaten Sridevi and forcibly given poison to her and hence complaint was filed as per Exhibit P6. Based upon the complaint made by PW-1, criminal law was set into motion for offences reflected in the substance of the FIR. PW-2 / Shanthamma is none other than the mother of the deceased Smt. Sridevi and she has stated in his evidence that she went to the Primary Health Centre at Anavatti and had given statement before the respective Tahsildar / Taluk Executive Magistrate stating that she came to know that accused persons had beaten her daughter Sridevi and made her to consume poison and so also she has noticed some injuries reflected on the part of her toe and neck which turned into green and there was bleeding from her ear part and also nose part. But no evidence is forthcoming 29 specifically on the part of the prosecution even though PW-1 and PW-2 have been subjected to examination on the part of the prosecution thoroughly and police have seized the belongings of Sridevi and drew a mahazar as per Exhibit P3 which bears the signature at Exhibit P3(a). PW-3 / Manu @ Mahanthesh is a relative of the deceased and even though he has spelt about some sort of harassment alleged to have been extended by Accused No.1, who is none other than the husband of Sridevi, whereas he has stated that her parents had given dowry of Rs.1 lakh and Rs.60,000/- to the accused persons on two occasions. But their daughter Smt. Sridevi had died by consuming poison as on 24.08.2012 due to physical as well as mental harassment meted out to her by the accused who forcibly made her to consume poison. PW-4 Gangamma is none other than the sister of the deceased and she has deposed that deceased and Accused No.1 were in cordial terms for about one year 30 from the date of her marriage. But later on, Accused No.1 had developed some sort of bad vices and as a result of that, had extended mental torture to her sister by consuming alcohol. But on 25.08.2012, she visited the Government Hospital whereby she saw the dead body of her sister and noticed that there was bleeding from the parts of her ear and nose and injuries were also found on the left toe part and also on the neck. She has stated in her evidence that she came to know that accused had forcibly made her to consume poison and die which is termed as murdering her. But there is no evidence on the part of the prosecution to prove the guilt of the accused beyond all reasonable doubt. PW-5 Prabhakara Deshpande is a responsible Tahsildar who had conducted inquest over the dead body of Sridevi in the Primary Health Centre Anavatti where the dead body of Sridevi has been produced and Inquest report was submitted at Exhibit P4. PW-6 Shyamala who is a neighbouring resident of the 31 accused, she has not stated in her evidence specifically relating to the torture in terms of cruelty extended by the accused persons to Sridevi. Hence, this witness has been treated as hostile and thereafter subjected to incisive cross-examination. But nothing worthwhile has been elicited on the part of the prosecution for consideration. PW-7 Hanumanthappa who is also one of the relatives of the accused. He has been subjected to examination on the part of the prosecution and in his evidence on the part of the prosecution nothing has been stated about the cruelty in terms of physical as well as mental harassment by the accused. Hence, this witness PW-7 has been treated as hostile and thereafter subjected to cross-examination. Even though subjected to cross-examination at length, nothing worthwhile has been elicited to believe the version of Exhibit P6 of the complaint or Exhibit P4 / fulcrum of the inquest mahazar. The statement has been given by PW-6 as per 32 Exhibit P11 and PW-7 as per Exhibit P12. These witnesses have given a go-by to the versions of their statements and their evidence runs contrary to the evidence of PW-1, PW-2, PW-3 and PW-4. PW-8 Yuvaraj, PW-9 Manjula and PW-10 another Manjula have been subjected to examination on the part of the prosecution and they were said to be working with the deceased Sridevi at Anavatti by avocation as a Lineman. But they have stated in their evidence that they did not know the reason why Sridevi had consumed poison and lost her breath. But all these witnesses have been subjected to examination on the part of the prosecution to prove the guilt of the accused which is stated at Exhibit P6 and this complaint as been given by her parents. But all these witnesses did not withstand the versions of their statements and have been treated as hostile and were subjected to cross- examination at length which is termed as incisive cross- examination. But nothing worthwhile has been elicited 33 by the prosecution to believe that the theory put forth by the prosecution as made in the complaint at Exhibit P6 and similar substance made in the FIR inclusive of their statements recorded by the I.O. Consequently, their statements have been got marked at Exhibits P13 to P15. But overall, their evidence is contrary to the evidence of PWs 1, 2, 3 and 4. They are the vital witnesses on the part of the prosecution. But they did not facilitate the evidence supporting the case of the prosecution to prove that Accused No.1 namely Vasantha @ Vasanthakumar M.P. and also his parents arraigned as Accused Nos.2 and 3 have extended physical as well as mental harassment to her and caused the death of the deceased Sridevi as alleged in the substance of the charge-sheet and also charges were framed against the accused persons. PW-12 is the Doctor who conducted autopsy over the dead body and issued PM report as per Exhibit P17 as at the request made by the Taluk Executive 34 Magistrate, Soraba Taluk who conducted autopsy over the dead body of the deceased Smt. Sridevi. It was held by him in between 6 to 7 p.m. and accordingly issued the PM report as per Exhibit P17 he had noticed the abrasion measuring 3 cm x 2 cm present over the dorsum of tip of left great tow and an abrasion measuring 1 cm x 1 cm. over the tip of dorsum of left second toe. These are all the injuries over the person of the deceased which is to be termed as abrasion noticed and stated in PM report at Exhibit P17. He has further stated that the injuries are antemortem in nature and also fresh at the time of death of the deceased Smt. Sridevi.
18. FSL report at Exhibit P-18 has been issued by the Chemical Examiner and the same has been collected by the Deputy Superintendent of Police being an I.O. by writing a letter requesting him to give an opinion whether the deceased Smt. Sridevi consumed poison voluntarily or the same was administered 35 forcibly wherein he has stated that on receipt of Histo Pathology report, he replied to the I.O. that he cannot give any opinion whether the deceased Smt. Sridevi consumed poison voluntarily or poison was administered to her forcibly. Further stated in his evidence that prior to her death, if the deceased was dragged on a hard surface there may be chances of being injured on her toes. This is the evidence let in by the Doctor who issued the PM report at Exhibit P17 and FSL report at Exhibit P18. But at a cursory glance of the evidence of PW-1, PW-2, PW-3 and PW-4 inclusive of the seizure mahazar at Exhibits P2, P3 and P5 and so also the fulcrum of Exhibit P1 of the spot mahazar, but the material witnesses stated even though have been subjected to examination on the part of the prosecution, but nothing worthwhile has been elicited to prove the guilt of the accused and even the death of the deceased within a span of 7 years from the date of her marriage. 36
19. In order to attract the provisions of Section 304B of the IPC, 1860 It is relevant to refer to the said concept. Firstly, it should be proved that soon before the death of the deceased, she was subjected to cruelty and harassment in connection with demand of dowry. Secondly, that the death of deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal. Thirdly, such death occurs within seven years from the date of her marriage. Fourthly, that the victim was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry and it should be established that such cruelty and harassment was made soon before her death. In order to constitute the offences, it has been specifically made an observation and also stated in paragraph 42 of the acquittal judgment rendered by the 37 Trial Court as regards the scope and concept of Section 304B of the IPC, 1860. There is no dispute that the death of the deceased Smt. Sridevi has occurred within a span of 7 years from the date of her marriage with Accused No.1 Vasantha @ Vasanthakumar M.P. as per the customs prevailing in their society. But the ingredients of Section 304B of the IPC read together with Section 113B of the Evidence Act relating to presumption of dowry death merely because allegation made against the accused, it cannot be said that the prosecution has established the guilt against the accused beyond all reasonable doubt unless the prosecution facilitates worthwhile evidence.
20. Section 113B of the Indian Evidence Act, 1872 relates to presumption as to dowry death and it proclaims that when the question is whether a person has committed dowry death of a woman and it is shown that soon before her death such woman has been 38 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. This is a vital provision and also for offences under Section 304B IPC it is the domain vested with the prosecution to establish the guilt of the accused by facilitating worthwhile evidence as regards the concept of cruelty or harassment or even in connection with demand for dowry. It is the duty of the court to presume that such person had caused dowry death. But it is the domain vested with the prosecution to facilitate worthwhile evidence, consistent evidence, cogent evidence and lastly it must be acceptable in nature. Unless it is acceptable in nature, and merely because several witnesses have been subjected to examination and even plethora of evidence as well as documents have been got marked, it cannot be said that the prosecution has established the guilt against the 39 accused beyond all reasonable doubt for securing conviction. But PW-1 Mallikarjuna who is the father of the deceased and PW-2 Shanthamma who is the mother of the deceased and they are the vital witnesses on the part of the prosecution. But PW-1 has not specifically stated in his evidence relating to proving the guilt of the accused and so also the ingredients of each one of the offences under Sections 498A, 304B, 302 read with Section 34 of the IPC, 1860. But under Section 498A of the IPC, there are two parts namely Explanation 1 and Explanation 2. Even on a close reading of the contents of explanation 1 and explanation 2 and on a close reading of the provision of law, it is the domain vested with the prosecution to prove the guilt of the accused by facilitating worthwhile evidence.
21. DW-1 Dr. Shivakumar who has been subjected to examination on the part of the defence side but 40 prosecution did not choose to examine the Doctor even though he has been cited as CW-19. But under Section 233 of the Cr.P.C. the accused has been called upon to adduce any defence evidence and even the accused has been subjected to examination on the part of the defence side and the witnesses have been cited in the charge-sheet, but in the instant case, DW-1 Dr. Shivakumar who has been cited as a witness in the charge-sheet as CW-19. But the prosecution did not make any venture to examine the said Doctor. But on the other hand, the defence counsel on the part of the prosecution has chosen to examine CW-19 examined as DW-1 and he has stated in his evidence that he is running Savitha Clinic at Anavatti and working as a Physician. His clinic is having scanning facilities to patients. Sridevi who is the deceased who is none other than the wife of Accused No.1 Vasantha @ Vasanthakumar M.P. had come to his clinic along with her child prior to one year from the date of consuming 41 poison. He has deposed that Sridevi had come to his clinic for scanning purpose and he has given report as early pregnancy. Later, she has not turned up to his clinic as he has stated in his evidence. DW-1 has given statement before the police during the course of investigation on 24.08.2012 in between 5 – 6 p.m. that Smt. Sridevi had come to his clinic along with her son and stated that she does not want child as her son is small at that relevant point of time. These are the evidence elicited from the examination of DW-1 who is stated as CW-19 in the charge-sheet laid by the I.O. against the accused person but the evidence of DW-1 at a close scrutiny and analytical looking into the theory of the prosecution has been diluted.
22. The evidence of the prosecution does not reflect specifically that there was persistent demand made by Accused No.1 and also his parents who are arraigned as Accused Nos.2 and 3 to bring dowry from 42 her parents house and also as regards ill-treatment meted out to Sridevi physically as well as mentally. PW- 1 Mallikarjun who has been subjected to examination he being the father of the deceased Sridevi, did not disclose in his complaint specifically that the accused persons, that is Accused No.1 Vasantha @ Vasanthakumar M.P. and Accused Nos.2 and 3 who are the in-laws of the deceased, had demanded additional dowry through his daughter Smt. Sridevi. Even entire evidence on the part of the prosecution it reflects that the deceased and Accused No.1 had taken financial assistance for construction of their house.
23. Whereas Section 304B of the IPC, 1860 which has been lugged in the instant case where Accused Nos.1, 2 and 3 having an intention to eliminate the deceased Smt. Sridevi who is none other than the wife of Accused No.1 and who is none other than the daughter-in-law of Accused Nos.2 and 3. But it is 43 relevant to refer to the concept of Section 34 of the IPC. Whereas the words ‘in furtherance of common intention of all’ do not subsequently exist in the ordinary course. But Section 34 of the IPC is only a rule of evidence and it does not create a substantiate offence. It means that if two or more persons not only do a thing jointly, it is just the same as if each of them have jointly done it individually. The existence of common intention among the participants in the crime is the essential element for application of this section. It applies to acts done by several persons in furtherance of the common intention. But in the instant case, Accused No.1 who is none other than the husband of deceased Sridevi and Accused Nos.2 and 3 who are the in-laws of the deceased, that Section 34 of the IPC has been lugged in the charge- sheet relating to common intention assuming that there is an active participation in commission of the offence under the Criminal act. But the definition between ‘common intention’ under the IPC or even common 44 object under Section 149 of the IPC is of vital importance. Therefore, the aspect of the accused persons being likely to cause death with a common intention, the said domain is vested with the prosecution which is required to establish the guilt even for common intention of Section 34 in addition to the other offences by facilitating worthwhile evidence that each one of the accused had intentionally participated with each other to eliminate the deceased. But in the instant case, there is no worthwhile evidence which is forthcoming on the part of the prosecution for even causing for the death of the deceased Sridevi and even to drive her to commit suicide by consuming poison or even forcibly administering poison to eliminate the deceased Smt. Sridevi. This is an important factor relating to motive. But the motive behind the crime is a relevant fact of which evidence can be given. The absence of a motive is also a 45 circumstance which is relevant for assigning the evidence. But assigning the evidence it is the domain of the prosecution. But the circumstance of proving the guilt of the accused is the domain vested with the prosecution relating to the fact that the motive has been established. Then it is fatal to the case of the prosecution. Even on totality of evidence of the prosecution in the instant case on close scrutiny, the Trial Court has rightly come to the conclusion that the prosecution has miserably failed to prove the guilt of the accused for securing conviction. Having no other go, the Trial Court has rendered an acquittal judgment. But the autopsy over the dead body of Sridevi has been done by the Doctor at the request made by the Taluk Executive Magistrate. The reason is within a span of 7 years, Sridevi had died. But medical evidence should be corroborated with other independent testimony on the part of the prosecution. That too in respect of serious offences of Section 304B of the IPC relating to offences 46 under Section 498A IPC including Section 302 of the IPC, with a common intention. But medical evidence is to be proved by the prosecution that the injuries inflicted upon her has resulted in her death. But it is the domain vested with the prosecution to prove the guilt of the accused.
24. Whereas in the instant case, serious offences under Section 304B of IPC and so also offences under Section 302 of the IPC, 1860 have been lugged. But the concept of mens rea and actus rea and even ingredients of each one of the offences it is the domain vested with the prosecution to prove the guilt of the accused. But ingredients of Section 304B of the IPC and even the aiding provision of Section 113B of the Indian Evidence Act, it is a presumption of law on the proof of essential ingredients mentioned therein which becomes obligatory for the court to raise a presumption that the accused caused dowry death. But in the instant case, 47 prosecution even though had subjected to examination several witnesses and plethora of documents were got marked, but worthwhile evidence has not been facilitated by the prosecution to secure conviction. Consequently, the Trial Court had rendered an acquittal judgment.
25. Section 134 of the Indian Evidence Act, 1872 it is a well-known principle of law. Even a solitary witness and solitary statement in terms of given evidence before a court of law is suffice to hold that in case it is true and even correct version of the case of the prosecution, but the quality of evidence and not quantity of evidence which is required to be judged by the court to place credence on the statement of witnesses or on the evidence of witnesses which have been adduced and also recorded. But appreciation of evidence of witnesses is the domain vested with the Trial Court under Section 3 of the Indian Evidence Act, 48 1872. It is not number of witnesses who have been subjected to examination but only the quality of their evidence which is important. As there is no requirement in law of evidence that any particular number of witnesses are to be examined to prove / disprove a fact. The evidence must be weighed and not counted. The test is whether the evidence has a ring of trust and so also is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness rather than the multiplicity or plurality of the witnesses. It is the quality and not quantity which determines the adequacy of evidence as has been provided by Section 134 of the Indian Evidence Act, 1872. However, it is the domain vested with the prosecution to prove the guilt of the accused by facilitating worthwhile evidence. But in the instant case, there is no consistent, cogent, corroborative and positive evidence let in by the prosecution to probabilise that the accused had caused the death of the deceased 49 as narrated in the evidence or even in the charges framed against the accused. But in the instant case, even at a close scrutiny of the evidence and each one of the evidence of the witnesses and close scrutiny of the ingredients of each one of the offences, we find that the prosecution has miserably failed to prove the guilt of the accused. The burden on the prosecution to establish that the accused persons had demanded dowry and in order to meet their demand they extended physical as well as mental harassment to her and due to unbearable torture, Sridevi who is none other than the wife of Accused No.1 Vasantha @ Vasanthkumar had committed suicide, is stated in the substance of the charges framed against the accused. Consequently, the Trial Court has formed an opinion by assigning justifiable reasons that the prosecution has failed to prove the guilt of the accused even as regards the concept of common intention to get additional dowry by 50 extending physical as well as mental harassment to her and consequently has rendered an acquittal judgment.
26. We have gone through the entire evidence of the prosecution witnesses in terms of re-appreciation and also re-visiting the acquittal judgment rendered by the Trial Court. But we are of the opinion that the Trial Court has rightly come to the conclusion by analyzing the evidence and has rendered an acquittal judgment. There are no grounds or even any justifiable reason as contended by the prosecution to call for any interference and no warranting circumstances arise as sought for in order to re-appreciate and to reverse the acquittal judgment rendered by the Trial Court. Consequently, the appeal deserves to be dismissed as being devoid of merits. Accordingly, we proceed to pass the following:
ORDERThe appeal preferred by the appellant in Crl.A.No.1140/2016 namely Mallikarjuna 51 S/o. Shankarappa who is a prosecuting witness / complainant under Section 372 of the Cr.P.C. and the connected appeal in Crl.A.No.1677/2016 preferred by the State / appellant under Section 378(1) and (3) of the Cr.P.C. are hereby rejected. Consequently, the acquittal judgment rendered by the Trial Court in S.C.No.55/2014 dated 10.02.2016 is hereby confirmed. If any bail bond has been executed by the accused, the same shall stand cancelled. Sd/- JUDGE Sd/- JUDGE KS