Manjula Chellur, J.
1. This is yet another case involving a young lady who has left this world at the age of 25 years leaving behind a tender aged son by name Rakesh that too when she was pregnant of 20 weeks. The State has come up with this appeal challenging the judgment and Order of acquittal, wherein the respondents were tried for offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act and also Sections 498A and 304B of IPC.
2. The case of the prosecution in brief is as follows:
It is not in dispute that the deceased-Rekha was affectionately called as Baby by her kith and kin married the 1st respondent/accused on 5.6.1991. The relationship inter se between the respondents i.e. accused No. 1 being the son of accused Nos. 2 and 3, and accused No. 4 being the son-in-law of accused Nos. 2 and 3 is not in dispute. The relationship of deceased-Rekha with P. W. 6-mother, P.W. 7-first cousin and P.Ws. 9 and 19-maternal uncles is no t in dispute. It is also not in dispute that/subsequent to her marriage with the 1st respondent/accused she started living in the matrimonial home at Kollakady area of Puthige village in Karkala Taluk. Out of the said wedlock, a son was born to them, who was named as Rakesh as on the date of the alleged unnatural death i.e. 19.11.1993, as per the post-mortem report she was pregnant of 20 weeks. It is also not in dispute that within 7 years of her marriage with the 1st respondent/accused, she met with an unnatural death in the matrimonial home as she consumed pesticide, containing poisonous chemical i.e. Organo phosphorous.
According to the prosecution, there were marriage talks prior to the date of marriage between the parties, wherein the respondents/accused demanded a lakh of rupees and gold to be given as dowry. However, according to the prosecution, the complainant raised Rs. 85,000.00 with the assistance of the younger brother i.e., P. W.9-Muthayya Shetty and performed the marriage after giving 30 sovereigns of gold. It is their further case that some time later, there was demand for further payment of Rs. 1,00,000.00 and 20 sovereigns of gold as additional dowry from respondents 1 to 3, which developed into harassment and ill-treatment towards deceased Rekha.
It is also their case that she has not only disclosed the said harassment and cruel treatment to her kith and kin but also wrote certain letters. At that time, the first child was about 10 months old. According to the prosecution, P.W.7-Prathap Shetty who was in V Standard, visited deceased-Rekha at her matrimonial home during October 1993 i.e. Dasara vacation. The ill-treatment and harassment meted out to the deceased at the hands of the respondents/accused was witnessed by this first cousin of the deceased, which were informed to others later. Ultimately, on 19.11.1993, the kith and kin of the deceased received the intimation of death of the deceased due to consumption of poisonous substance like Organo phosphorous. The mother of the deceased lodged a complaint saying deceased would not have died taking poison and says with certainty that her son-in-law has murdered her. Therefore, she seeks investigation of the matter.
Apparently, prior to the kith and kin of deceased-Rekha learnt about her death by 7.00 a.m. on 19.11.1993, the family members of the respondents were aware of the death of deceased-Rekha by 5.00 a.m. due to consumption of Hinacin pesticide as she started vomiting. She was shifted to Alva's Health Centre at Moodabidri by 7.00 a.m. By the time she was taken to the hospital, She was in an unconscious state of mind. Her pulse was feeble. Even her heartbeats were not heard properly. Ultimately, she died within an hour i.e. 8.00 a.m. on 19.11.1993.
The 1st respondent-Satish Shetty i.e. the husband of deceased-Rekha by 9.45 a.m. lodges a complaint in UDR No. 40/1993, which is at Ex. P20. As a matter of fact, as it was medico-legal case, intimation was sent from Alva's Health Centre to the Police on 19.11.1993 itself. Ex. P21 is the F.I.R. pertaining to UDR No. 40/1993.
We notice from the records that though a request was made by the investigating agency to the Tahsildar-P.W. 15 on the very same day i.e. on 19.11.1993 to conduct inquest proceedings under Section 174, Criminal Procedure Code, it was not conducted on the same day and the inquest came to be conducted two days later i.e. on 22.11.1993. As per the inquest proceedings, the unnatural death of dceased-Rekha was confirmed. Apart from recording the statement of kith and kin of the deceased and also the family members of the matrimonial home of the deceased on the very same day, P.W. 6-mother of the deceased lodged a complaint as per Ex. P9 giving details of demand before the marriage of her daughter with 1st respondent/accused, subsequent demand and the harassment caused to her daughter at the hands of the respondents/accused ultimately resulting in her death on 19.11.1993.
Based on this complaint, second F.I.R. came to be issued as per Ex. P18, which came to be registered for an offence punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act, so also for offence punishable under Sections 498A and 304B, IPC. During the course of the investigation, the dead body was sent for post-mortem and after the post-mortem, the personal belongings of the deceased came to be seized under mahazar. So also at the instance of the accused, the gold ornaments and other articles said to be belongings of the deceased came to be seized from the matrimonial home. As the external injuries found on the dead body of the deceased were not sufficient to show that the death was not in the normal course of nature, the doctor sent the viscera to the forensic laboratory and deferred his opinion for want of chemical examination report. Subsequently, he opines that the death of the deceased was due to Organo phosphorous poison. During the course of the investigation, spot mahazar was conducted, statements of several persons like neighbours of the deceased, elders and other family members like mother of the deceased so also neighbours of the husband of the deceased came to be recorded. After completing the investigation, as the material collected by the investigating agency was pointing out a prima facie case against the respondent, a charge-sheet come to be filed against the husband and in-laws of the deceased. During the course of the proceedings, after the evidence of P.W. 6, an application under Section 319, Criminal Procedure Code to implead 4th respondent as accused came to be allowed and, accordingly, he was also brought on record as 4th accused. Ultimately, the trial was conducted against four respondents for the above said charges by examining P.Ws. 1 to 21 and marked Ex. PI to P23 and also M.Os. 1 to 15 for the prosecution. Exs. Dl to D12 are the statements and certain documents came to be marked for the defence. After recording statement of the respondents/accused under Section 313, Criminal Procedure Code respondents 1 and 2 filed their defence statement under Section 233(2) of Criminal Procedure Code.
According to the defence, deceased-Rekha took the extreme step of ending her life by consuming poison as she was thoroughly upset when the 1st respondent/accused, her husband did not permit her to visit her parents as demanded by her on 18.11.1993. The learned Judge on appraisal of the entire material both documentary and evidence of the witnesses assigning several reasons, which would be dealt hereinafter, acquitted the respondents of all the charges. Aggrieved by the said order of acquittal, the State has come up in appeal.
3. According to the learned Additional S.P.P., the reasoning of the learned Single Judge with reference to the statements of the witnesses recorded under Section 174, Criminal Procedure Code on the face of the record is perverse in view of the fact that the original statements of the witnesses were part of the inquest report which finds a place in the records. So far as the reasoning of the learned Single Judge regarding delay in lodging the complaint, it is properly explained from the evidence of P.Ws. 6 and 15, so also the contents of Ex. P9, the complaint lodged by the mother. According to the learned Additional S.P.P., the reasoning of the learned Judge with regard to the demand and payment of dowry is unreasonable in view of the 1st accused himself admitting receipt of dowry in his UDR complaint. It was further argued on behalf of the State that the prosecution need not establish the source of money towards the payment of dowry raised by the kith and kin of the deceased and, therefore, the discussion of the learned Judge at paras 21, 22 and 23 on these aspects has to be held as perverse. We also notice that the learned Judge at paras 25 and 26 refer to the offence punishable under Section 304B, IPC and comes to the conclusion that in view of the reasoning on the above said issues, when no offence came to be made out for the offence under Section 304B, IPC, the respondents/accused could not be punished for lesser offence under the Dowry Prohibition Act. Of course, this was with reference to the judgment of this Court and the Apex Court. He relies upon Dalbir Singh v. State of U.P. : 2004CriLJ2025 and State of Karnataka v. Choivdegowda ILR 2007 Kar. 2117, on the point that even if no charge came to be framed under Section 306, IPC in view of a charge being framed under Section 498A, IPC in the absence of ingredients of Section 304B, IPC, the offence being established by the prosecution, the accused could still be convicted for alternate charge under Section 306, IPC provided the prosecution establishes the ingredients of the said offence to the knowledge of the accused/respondents, even if no charge as such came to be framed for the offence punishable under Section 306, IPC or any other similar offence.
4. He also relies on Trimukh Maroti Kirkan v. State of Maharashtra II (2006) DMC 757 (SC) : IV (2006) CCR 169 (SC) : 2006 AIR SCW 5300, on the point that when the victim dies in the matrimonial home, especially to the knowledge of her husband, it is for him to explain the circumstances in which she died. Improper explanation or non-explanation by the accused according to the Additional S.P.P. would strengthen the arguments of prosecution under Section 113B of the Evidence Act apart from drawing an adverse inference against the respondents/accused under Section 106 of the Evidence Act. He further relies upon Podda Narayana and Ors. v. State of Andhra Pradesh : AIR1975SC1252 ; Head Note (D) with reference to the scope of Section 174, Criminal Procedure Code how the Executive Magistrate is required to draw an inquest whenever a married woman meets with unnatural death in suspicious circumstances within 7 years of the marriage.
5. As against this, the learned Counsel for the respondents/accused strenuously argued that the prosecution has not explained the delay of lodging the complaint by the mother of the deceased i.e. P.W.6 though she arrived on the same evening i.e. 19.11.1993. The admission of her that she was waiting for arrival of her brother-PW.9 from Sanga Reddy to lodge a complaint would only go to show that they took considerable time to lodge the complaint to implicate the accused in order to compel the respondents to accept the terms and conditions imposed by the complaint and others i.e. to give them Rs. 1,00,000.00 and also hand over the custody of son of the deceased i.e. Rakesh to P.W. 6. He also refers to the reasoning of the learned trial Judge that the statements of kith and kin of the deceased i.e. the mother and others though were recorded by the Tahsildar, were not produced, therefore an adverse inference has to be drawn that such statements if produced would go against the prosecution.
6. He also placed reliance on the contents of Ex. D3, a letter said to have been written by the younger sister of the deceased-Rekha by name Yashoda and so also P.W. 7-Pratap Shetty to the deceased and contents of Ex. P7, a letter said to have been written by the deceased to her mother three months prior to her death to substantiate his contention that at no point of time there was any harassment to the deceased leave alone the harassment demanding the dowry. In other words, these two documents do not disclose any evidence indicating that the deceased was subjected to harassment at any point of time in the matrimonial home. He further relies upon Section 233(2) statement, a detailed statement filed by the accused himself, wherein he has explained how each and every step taken by the deceased and the fact that in spite of his advice she did not heed to his advice and went ahead with the extreme step of ending her life only in order to show her displeasure and non-cooperation with her husband. He relies upon several decisions i.e. Chattdrappa and Ors. v. State of Karnataka I (2007 CCR 465 (SC) : I (2007) DLT (Crl.) 732 (SC) : AIR SCW 1850, so also Rattanlal v. State of Jammu and Kashmir II (2007) CCR 218 (SC) : 2007 AIR SCW 3066. So far as powers of Appellate Court while dealing with the appeal against the acquittal are concerned, he relies on Appasaheb and Anr. v. State of Maharashtra I (2007) CCR 197 (SC) : I (2007) DLT (Crl.) I (SC) : I (2007) DMC 143 (SC) : 2007 AIR SCW 456, bringing to our notice the law laid down by the Supreme Court what exactly constitutes dowry as defined under Section 2 of the Dowry Prohibition Act and submits that every demand for money including the urgent domestic need of the son-in-law doexs not constitute demand for dowry. He relies on State of Himachal Pradesh v. Nikku Ram and Ors. : 1995CriLJ4184 , to submit that if the injuries found on the person of the deceased were not sufficient to cause her death and Section 304B, IPC is not attracted and if no evidence is forthcoming to show that the deceased was harassed within the Explanation (b) of Section 498B, IPC, no presumption under Section 113(A) of the Evidence Act can be raised. Therefore, the case on hand does not fall under Section 309, IPC.
7. With these arguments, in mind, we have gone through the entire evidence on record i.e. both oral and documentary so far as unnatural death of the deceased within 7 years of marriage, it is not in dispute that the evidence of P.W. 8-Doctor and the contents of Ex. P12-post-mortem report and Ex. P 13-forensic report coupled with the evidence of the doctor, P.W. 11 who treated the deceased at Alva's Health Centre at Moodabidri, the death of the victim due to the presence of Organo phosphorous in her stomach is confirmed. Even otherwise, the defence itself would indicate that she consumed Hinacin, a pesticide at about 5.00 a.m. on 19.11.1993 in her matrimonial home, which came to the notice of the 1st respondent/accused i.e., the husband of the deceased within a short time as she started vomiting in the bedroom. The unnatural death of the deceased due to consumption of pesticide containing Organo phosphorous is confirmed. When once the unnatural death of the deceased within 7 years of marriage occurs, the next step would be to see whether there was harassment or cruel treatment to the deceased at the hands of the respondents as contemplated under Section 498A, IPC. Again Section 498A, IPC has two parts, which bifurcates the nature of cruelty i.e. the reason for such cruelty. Explanation (a) refers to wilful conduct of the husband or the relative of the husband, which is of such nature likely to drive the woman to commit suicide or cause grave injury or danger to life and limb or health of the woman (victim). The second part of Explanation (b) is a specific provision, where the harassment was with a view to coerce her on any person related to her to meet with the unlawful demand for any property or valuable security. In addition to the prosecution of the respondents/accused under Section 498A, IPC so also under Section 304B, IPC the penal sections under IPC, they have sought a penal action against the respondents for demanding and taking dowry at the time of marriage, which are punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act on the ground that apart from demanding and taking dowry prior to and at the time of marriage, in future also there was such unlawful demand by the respondents.
8. Section 304B, IPC Explanation says the word 'dowry' used in the Sub-section (a) shall have the same meaning as dowry in Section 2 of the Dowry Prohibition Act. As a matter of fact, Sub-section (a) of Section 304B, IPC is the definition of dowry death and the presumption goes against the husband or relatives for such dowry death of the woman if it was within 7 years of the marriage. The sentencing is under Section 304B, IPC. Section 113A of the Evidence Act is a presumption as to abetment of suicide by a married woman against the husband or relative of her husband if such commission of suicide was within 7 years of her marriage. Section 113A of the Evidence Act refers to presumption regarding the dowry death which can be raised against the husband or his relatives that soon before her death she was subjected to cruelty and harassment in connection with demand for dowry. Therefore, the criterion for establishing the offence either punishable under Section 306 or Section 304B, IPC would be the cruelty, which is defined and explained at Section 498A, IPC. Depending upon the cause or the reason for such cruelty, the presumption as contemplated either under Section 113A or under Section 113(A) of the Evidence Act would come to the assistance of the prosecution. Whenever a case brought before the Court either under Section 306 or 304B, IPC, the Court once comes to the conclusion that such unnatural death was within 7 years of marriage, must proceed to see what was the cause or reason for such cruelty, which ultimately resulted in the unnatural death of the deceased. Depending on the facts brought on record it should take support from the presumption under Evidence Act.
9. It is also well settled that though initial presumption comes to the aid of the prosecution, the prosecution is not absolved of its duty or liability to establish the charges levelled against the deceased beyond reasonable doubt. Having regard to the peculiar nature of the offence and the circumstances under which such unnatural death can occur, an initial presumption to assist the prosecution was brought into effect by amendment. This would only suggest that the husband or the relative within whose knowledge such unnatural death has occurred, must be able to explain how such death has occurred or what exactly was the cause for such death. However, the defence is not expected to establish its defence beyond reasonable doubt. In other words, it should be an explanation which would cause a dent in the evidence of the prosecution and it should be a reasonable one or it should be a reason acceptable to any reasonable and prudent mind.
10. Having come to the conclusion that the death was unnatural death and also in view of the specific defence taken by the 1st respondent/accused i.e. the husband of the deceased, now we proceed to see whether the learned trial Judge was justified in accepting the explanation of the husband to come to the conclusion that the prosecution was not able to establish any of the charges levelled against the respondents.
11. As already stated above so far as the death of the deceased is concerned, it is undisputed that it is unnatural one. Therefore, we have to see whether it is a dowry death as contended by the prosecution or any other death which would persuade and compel us to bring the same under any of the other penal provisions of the Act.
12. Regarding demand and acceptance of dowry, as a matter of fact, the learned trial Judge was not even justified in discussing the issue with regard to actual payment of money, actual place of payment of money, capacity of the complainant to pay such huge amount and so also source of money alleged to have been arranged by her through P.W. 9 with the assistance of P.Ws. 13, 16 and 21. In normal circumstances, if no admission of any sort on the part of the accused was forthcoming, Court has to enquire all the aspects of the matter with reference to the contradictions and controversial statements of the witnesses on the said aspect. It would not be out of place to mention that even if there are contradictory statements with regard to quantum of amount and minute details of such aspects, ultimately what the Court has to consider is whether there was demand for dowry as such, payment of dowry and acceptance of the same.
13. In the present case, even due to lapse of time of six years, having regard to the background from which the kith and kin of the deceased come from, there bound to be discrepancies of minute details like exact amount demanded and the exact amount paid by the parties. The criterion is whether any amount was paid towards dowry as a compliance of the demand. In view of the contents of UDR complaint at Ex. P-20 wherein the 1st respondent/accused voluntarily admits that at the time of marriage he took Rs. 25,000 as dowry, the Trial Court ought not to have gone into further details like from where the amount was secured, place i.e. Hotel Janardhana, Udupi, time and through whom said amount came to be paid, prior to the marriage. He also admits that 4 or 5 sovereigns of gold was given to his wife. It is also the defence theory that financial position of the mother of the deceased was very critical and, therefore, she even approached the son-in-law for financial assistance to perform the marriage of another daughter Yashoda. Having regard to the society from which the lady comes, it is not a normal practice for in-laws to approach the son-in-law for financial assistance unless it was the last resort. In that view of the matter, if such being the financial condition of P.W. 6, it cannot be said voluntarily this sum of Rs. 25,000 came to be given as dowry apart from 4 or 5 sovereigns of gold ornaments. Therefore, this admission of the accused is a very strong piece of evidence in support of the case of the prosecution that husband demanded dowry and accepted the same. Apart from this, we have the evidence of P.W. 6 mother of the deceased, P.W. 9 maternal uncle of the deceased, P.W. 10 distant relative of the deceased, P.W. 13 according to whom some money was lent to P. W.9 for performance of the marriage, P.W. 16 who said to have paid Rs. 20,000 to P.W. 9 and P.W. 19 another younger brother of P.W. 6 have categorically stated that by the time deceased Rekha came to the age of marriage, her father had left them and his whereabouts were not known. Apart from herself, the deceased had another two younger sisters. P.W. 6 for any support, both material and moral, was depending on her younger brothers, especially P.W.9 Muthaiah Shetty who was running a hotel at Sangareddy District in Andhra Pradesh. The evidence of P.Ws. 13 and 16 goes to show as P.W. 9 was incapable of entirely meeting the costs of the marriage, he borrowed money from P.Ws. 13 and 16. The internal problems in a family, especially financial constraints, would be known to the elder members of the family who were incharge of maintenance of the family. P.W. 6 being a helpless woman, as her husband's whereabouts were not known, naturally would look to her younger brothers for every other help. Apparently, P.W. 6 did not have any other source of income. Therefore, the narration of facts both by P.W. 6 and her two younder brothers P.Ws. 9 and 20 does not indicate any exaggeration or intention to aspire false allegations against the respondents. In that view of the matter, evidence of these witnesses how they arranged money to meet the demand of the respondent/husband of the deceased towards payment of dowry, i.e. in cash and gold is further corroborated by the admission of the accused himself. In view of the above discussion, we are persuaded to say that the trial Judge totally ignoring these glaring facts and the admission of the accused, has devoted all his attention on irrelevant and unimportant facts.
14. Then we come to another reasoning of the trial Judge at paragraphs 15 and 16 of the judgment, wherein he accepts the contention of the defence that adverse inference has to be drawn against the prosecution for not producing statements of P. W. 6 and other kith and kin of the deceased recorded by Taluka Executive Magistrate under Section 174, Criminal Procedure Code proceedings.
15. The learned Judge refers to the evidence of P.W. 14 who received UDR complaint and assisted in conducting Section 174, Criminal Procedure Code proceedings, that he does not know whether. P.W. 15 has recorded the statements of P.Ws. 6, 9, 10 and others and also while referring to the admission of P.W. 15 himself that he has recorded such statements, but he does not have copies of the same with him, blindly accepts the contention of the defence that no such statements are before the Court. Therefore, under Section 114 of the Evidence Act, an adverse inference has to be drawn against the prosecution as it would go against the case of the prosecution.
16. The learned Judge while discussing this at paragraph 16 referring to Illustration (g) of Section 114 describes as If Sub-section (g) to Section 114 compels him to draw such adverse Inference. If only the learned trial Judge was attentive and careful enough to look into the records, he would have come across the original statements of these witnesses which came to be recorded by the Taluka Executive Magistrate while recording inquest proceedings under Ex. P-1. It is also pertinent to mention here that even the learned Public Prosecutor who was required to assist the Court to do justice to the case, did not bother to notice whether such statements were filed or not. Fortunately, during the course of arguments the Additional S.P.P. brings to our notice that as a matter of fact, such statements of mother and close relatives of the deceased were part of the Trial Court records and somehow such important documents were not noticed either by the prosecutor or by the Court. When much cross-examination regarding these statements was indicated in the evidence of P.Ws. 14 and 15, the Court instead of being a mute spectator to the proceedings before it, ought to have been alert having presence of mind to see whether there was justification in allowing the defence to drive at something which was factually incorrect. This is an unfortunate situation where even the authorities concerned who were supposed to do justice to the victim were not that alert and sensitive to the issue. Therefore, the observation of the learned trial Judge that adverse inference has to be drawn against the prosecution regarding its contention, especially the allegations against the accused falls to the ground.
17. There is yet one more legal aspect concerning this. Section 174 of Criminal Procedure Code does not empower the Taluka Executive Magistrate to enquire into the truth or genuineness or otherwise of the allegations made against the accused. Section 174, Criminal Procedure Code reads as under:
Police to enquire and report on suicide, etc.--(1) When the officer in-charge of a Police Station or some other police officer specially empowered by the State Government in that behalf, receives information that a person has committed suicide, or has been killed by another or by an animal, or by machinery, or by an accident, or has died under circumstances raising a reasonable suspicion that some oilier person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate.
(3) When--
(i) the case involves suicide by a woman within seven years of her marriage; or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or
(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or
(iv) there is any doubt regarding the cause of death; or (v) the police officer for any other reason considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-Divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate.
This procedure is contemplated in order to do justice i.e. the issues pertaining to violence against women wherein some caution or warning is given that the unnatural death of the deceased is under suspicious circumstances. Therefore, a public authority like Taluka Executive Magistrate who is independent of the Investigating Agency was required to form an opinion of report about the apparent cause of death of the victim. Having regard to the death of the deceased within seven years of marriage, the Investigating Officer has properly drawn the attention of the Taluka Executive Magistrate to hold inquest proceedings. Under Section 174, Criminal Procedure Code the scope of inquiry is only to ascertain the apparent cause of death including the external injuries and other suspicious circumstances in that respect. Other than that, whatever is stated before the Tahsildar, may not be of much help to the defence as such, unless such contradictory information given by the kith and kin would be a deviation from the further statements to attack the veracity of the evidence of such kith and kin. Apparently in the cross-examination there is no such reference.
18. Even otherwise though we cannot look into the contents of the statements of the witnesses which were never confronted to the witnesses of the Tahsildar who recorded the same, we do notice that kith and kin of the deceased did make allegation against husband of the deceased Rekha as the cause for the unnatural death of the deceased Rekha and the deceased died because of dowry harassment. As a matter of fact, there was a deviation from the complaint of the mother, P.W. 6 which come to be registered on the very same day, i.e. 22.11.1993 the date of inquest. The only variance we notice is no serious allegations were made against respondents 2 and 3 in the statements under Section 174, Criminal Procedure Code but whereas at Ex. P-9 the complaint of P.W. 6, allegations are made against all the four accused. The fact remains there was no scope for any adverse inference to be drawn by the Trial Court either factually or legally. In this regard, we make reference to the judgment of the Apex Court with regard to scope of Section 174, Criminal Procedure Code in a case Podda Narayana and Ors. v. State of Andhra Pradesh (supra), wherein at paragraphs 10 and 11 it is held as follows:
10. Another point taken by the learned Additional Sessions Judge was that in the inquest report details of the overt acts committed by the various accused have not been mentioned in the relevant column. The learned Judge in fact has assumed without any legal justification that because the details were not mentioned in the requisite column of the inquest report, therefore, the presumption will be that the eye witnesses did not mention the overt acts in their statements before the police. To begin with it seems to us that the learned Additional Sessions Judge's approach is legally erroneous. A statement recorded by the police during the investigation is not at all admissible and the proper procedure is to confront the witnesses with the contradictions when they are examined and then ask the Investigating Officer regarding those contradictions. This does not appear to have been done in this case. Furthermore, proceedings for inquest under Section 174 of the Code of Criminal Procedure have a very limited scope. Section 174 of the Code as it then stood reads as follows--
174. Police to enquire and report on suicide, to--
(1) The officer in-charge of a Police Station or some other police officer specially empowered by the State Government in that behalf, on receiving information that a person--
(a) has committed suicide; or
(b) has been killed by another, or by an animal, or by machinery, or by an accident; or
(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) xxx
(3) When there is any doubt regarding the cause of death or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
11. A perusal of this provision would clearly show that the object of the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. In these circumstances, therefore, neither in practice nor in law as it is necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows--
The learned Sessions Judge had also stated that the details regarding the weapons armed by each of the accused and which accused had attacked on which part of the body of the deceased are not found in the inquest report and from this he sought to draw the inference that the statements of the witnesses now found recorded under Section 161, Criminal Procedure Code could not have been the statements then read over to the Panchayathdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column 11(a) shows that A1 to A3, A4 and A5 with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove away the jeep and death was the result of injuries inflicted. The object of holding any inquest as can be seen from Section 174, Criminal Procedure Code is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore, not necessary to enter all the details of the overt acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at the inquest did not contain those overt acts and the statements now produced are those of the witnesses which were taken later.
The High Court has thus rightly explained that the omissions in the inquest report are not sufficient to put the prosecution out of Court, and the learned Additional Sessions Judge was not at all justified in rejecting the prosecution case in view of the this alleged infirmity.
19. Then coming to delay in lodging complaint, the learned trial Judge deals with the same at paragraph 17. On the other hand, it is seen that P.W. 6 arrives on the scene by the evening of 19.11.1993. According to P.W. 6 and other relatives, by the time they came to Moodabidri, the dead body was already kept in the mortuary. Even according to P.W. 15, mother of the deceased and other relatives approached him seeking permission to see the dead body but he asked them to come on 22.11.1993. Neither P.W. 15 nor the Investigating Officer has given explanation why till 22.11.1993 inquest proceedings could not be held. The only person who could have explained it was P.W. 15. Unfortunately, he does not give any explanation for the delay. On the other hand, though he received intimation on 19.11.1993 to conduct the inquest proceedings, he did inquest only on 22.11.1993 without assigning any reason. When initial procedure or action was not at all attributable to the conduct of P.W. 6, the Court has to see whether any active role came to be played by P.W. 6 and others to concoct a false case against the accused. As P.W. 6 was not even influential enough to see the dead body of her daughter till 22.11.1993, we cannot accept the contention of the learned Counsel for the offence that she gained time to concoct a false case against the accused. On the other hand, in the complaint of P.W. 6, she says she even sent a telegram to the Superintendent of Police seeking his intervention to retain the body of the deceased. This would only indicate that she suspected some foul play by the accused and was contemplating disappearance of evidence at the instance of the accused. Therefore, she sought for retention of the dead body of her daughter i.e. the deceased even though she had not seen the dead body.
20. It is surprising to note that in the defence statement of the accused under Section 233(2), Criminal Procedure Code he comes out with a very strange story. He comes out with a shocking statement in his defence theory at the fag end of the proceedings that till 22.11.1993 mother of the deceased and her kith and kin did not come to see the dead body of the deceased in spite of intimation of the death of the deceased. No suggestions were made in this regard. On the other hand, the defence makes allegations of concoction of the complaint by gaining 2-3 days time. They went to the extent of picturising her as an irresponsible mother who did not even bother to see the dead body of the deceased till 22.11.1993. This would only expose the reckless and irresponsible attitude of the husband of the deceased indicating that he would not spare anyone and anything while making bald allegations. On the other hand, P.W. 15, the Taluka Executive Magistrate himself admits that on 19.11.1993 itself mother of the deceased approached him requesting to see the dead body and it was at his direction they attended the inquest proceedings on 22.11.1993.
21. The learned Counsel for the defence during arguments submitted that this callous and irresponsible conduct of Taluka Executive Magistrate should not affect the accused as accused was not at all responsible for such attitude of the officer concerned.
22. It is to be mentioned here that it is at the instance of accused, a UDR case came to be registered and he being the husband of the deceased ought to have taken active role to see that the body was cremated properly with all the respect she deserved. He should have questioned why Taluka Executive Magistrate should postpone the inquest proceedings till 22.11.1993. On the other hand, it would indirectly suggest that in all probability such delay of inquest proceedings could be at the instance of accused themselves.
23. Ex. P-18 FIR. It has reached the Judicial Magistrate on 23.11.1993. It is not the case of the prosecution that complaint came to be lodged on 19.11.1993 itself. According to P.W. 6 it was the brother-in-law of accused No. 1 by name Ananda Shetty i.e. 4th accused came to the house on 19.11.1993 at 10.00 a.m. informing her that deceased committed suicide by consuming poison which was not accepted by her. She declared that accused must have forced her to consume poison as her daughter would not commit such a cowardice act. She also comes out with the statement that accused No. 4 asked her to sign a document in regard to death of deceased Rekha but she refused to do so. Hence accused No. 4 declared that he knew what to do with the dead body of her daughter. This actually compelled her, according to her, to send a telegram to the Superintendent of Police of Dakshina Kannada requesting him to retain the dead body of the deceased and meanwhile she was waiting for the arrival of her younger brother P.W. 9 who was assisting and helping her in all the matters pertaining to her family. As already stated above, it was this P.W. 9 and another brother P.W. 20 who played an active role even in the marriage of the deceased. They were the persons who arranged money for the marriage. In the absence of any support or assistance to her in the circumstances stated by her, it was natural for her to wait for her brother. She did not keep quiet at her home waiting for the arrival of her brother but whatever was possible for her at her end she has done, i.e. sending a telegram and approaching the Tahsildar to see the dead body. If she did not suspect foul play by the accused she would not have taken such active role before the arrival of her brother. Therefore, when she was not even able to see the dead body of the deceased till 22.11.1993, in all probability she waited for the arrival of her brother, only after attending the inquest proceedings, they were definite about the cause of death and, therefore, they lodged a complaint on 22.11.1993.
24. According to the defence, P.W. 6 and others were annoyed with him and his parents as they refused to give Rupees one lakh demanded for the marriage of Yashoda. This defence statement is filed after recording Section 313, Criminal Procedure Code statement. This is the explanation given by him. When the contents of defence statement filed under Section 233(2), Criminal Procedure Code is compared with the earliest statement of the accused on 19.11.1993, no such allegation of demand of financial assistance or custody of Rakesh, his son are mentioned in the UDR complaint at Ex. P-20. That being the situation, he was not in a position to say why his relationship with his mother-in-law was strained. On the other hand, we notice that what all was possible by this helpless lady, P.W. 6 was done by her and they lodged a complaint on 22.11.1993 after noticing the external injuries on the deceased.
25. It is well settled that mere delay in lodging the complaint will not be fatal to the case of the prosecution though such delay could be with the intention of lodging a false case. What is required is we have to assess the circumstances under which such delay occurred. The discussion and the reasoning would go to show P.W. 6 was helpless and she was not in a position to take any initiative or any positive action till the arrival of her brother and till they could ascertain the actual cause of death. Therefore, delay under these circumstances is not at all fatal to the case of the prosecution and the said delay is attributable mainly to the callous and careless approach of the Taluka Executive Magistrate in not conducting inquest proceedings on 19.11.1993 itself.
26. If a responsible public officer like P.W. 15 who had to conduct proceedings without any delay as per Section 174, Criminal Procedure Code were to act in this fashion, the very purpose of providing such provision which was intended to see that no evidence of crime is lost pertaining to this nature of crime against women, is defeated. Definitely such action of the official holding such public office deserves to be condemned.
27. Then coming to the fact whether prosecution was able to establish charges or not, though we are of the opinion that there was demand and acceptance of dowry in the form of cash and gold at the time of marriage, we are not that sure about the dowry death of the deceased. In other words, whether one can name the unnatural death of the deceased as dowry death. According to the complainant and other witnesses whatever was demanded and agreed as dowry was paid at the time of marriage itself. There was nothing due as such towards the payment of dowry that came to be agreed by the kith and kin of the deceased. Evidence on record would go to show for about one year subsequent to the marriage there was cordiality and happiness between the couple. They were quite happy even after the birth of their son Rakesh. Later the problem seems to have cropped up when accused started demanding money from the mother of the deceased. According to the mother of the deceased, the deceased visited the parental home on 3 or 4 occasions within one year after the marriage but she never complained of any harassment or ill-treatment in the matrimonial home. One year after the marriage during her visit to her mother she informed within six months after the marriage, the accused had started harassing her demanding additional dowry of 20 sovereigns of gold and Rupees one lakh towards investment of accused No. 1 for his wineshop. Deceased tolerated such ill-treatment for the simple reason that her mother was not in a position to comply with the demand of her husband. The manifestation of the ill-treatment was multi-faceted. She was forced to work in the fields along with the labourers and she was abused and assaulted. This is spoken to not only by P.W. 6, mother of the deceased but also P.W. 7, first cousin of the deceased.
28. P.W. 7, Pratap is the son of the elder sister of P.W. 6, who was very close to the deceased. He visited the matrimonial home of the deceased during October 1993--a month prior to her death. The son of deceased who was aged about 9 months at the time was the favourite of all the family members of P.W. 6, specially P.W. 7 and younger sister of deceased Yashoda. After the return of P.W. 7, more details about the harassment to the deceased came to light which is spoken to not only by her but also P.W. 7, the first cousin of the deceased. According to narration of Pratap deceased was not even given proper food, she was made to work hard day and night and in spite of it she was abused and assaulted by her husband as she was not able to get one lakh rupees for investment in the wineshop. We also have the evidence of P.Ws. 6 mother of the deceased, P.W. 9 and P.W. 20 viz. maternal uncles who did hear narration of ill-treatment by the deceased to her mother, P.W. 6. In the absence of protection from her father, naturally deceased must have been very close to her maternal uncles who were the only elderly male persons to advise her family. P.W. 6 was taking advice and assistance from her brothers in every respect of the matter. That being the situation, it would not be out of place for P.Ws. 9 and 20 to know what was happening to the deceased in her matrimonial home. P.W. 7 even goes to the extent of saying that deceased requested him not to reveal the ill-treatment caused to her by her husband to P.W. 6 as it would upset her mother and others very deeply. This would only go to show the anxiety of the deceased to live in the matrimonial home in the company of accused and at the same time did not want to be a burden to her mother who was already a botheration to her brothers. In this struggle and dilemma deceased seems to have spent some time before she took the extreme step of putting end to her life by consuming poison.
29. Whether this Rupees one lakh demand along with 20 sovereigns of gold could be considered as dowry as contemplated under Section 2 of the Dowry Prohibition Act. This additional demand was not exactly towards the part of agreed dowry to be paid at the time of marriage. This is a demand subsequent to the marriage Unconnected with the talks of the marriage. It was for investing in a wineshop by the first accused. Therefore, though it amounts to unlawful demand, it cannot fall exactly under the definition of dowry. For this we rely upon the decision of Supreme Court reported in the case of Appasaheb and Anr. v. State of Maharashtra (supra), wherein at paragraph 9 it is held as follows:
Two essential ingredients of Section 304B, IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or, in connection with, any demand for 'dowry'. The explanation appended to Sub-section (1) of Section 304B, IPC says that 'dowry' shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.
Section 2 of Dowry Prohibition Act reads as under.--
2. Definition of 'dowry'--In this Act 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly--
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or anytime after the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
In view of the aforesaid definition of the word 'dowry' any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with the trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, (see Union of India v. Garware Nylons Limited : 1996(87)ELT12(SC) and Chemcials and Fibres of India v. Union of India : 1997(89)ELT633(SC) ). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for 'dowry' as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B, IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.
30. If the demand does not come under the purview of dowry, then what exactly the offence amounts to Section 498A is a must for both Sections 306 and also 304B of IPC. Explanation (b) of Section 498A refers to cruel treatment or harassment with unlawful demand of property or any valuable article.
Section 498(a) and 498(b) reads as under:
(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.
Section 306, IPC reads as under:
Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
31. The Court has to now see whether the prosecution is able to make out a case for an offence punishable under Section 306, IPC. The ingredients to constitute an offence under Section 306, IPC would automatically take us to Section 498A. Cruelty referred to at Section 306, IPC is explained in Section 498A. The question is whether abetment of the accused to commit suicide by the deceased was established by the prosecution. The abetment need not be in direct words, it could be by oral declaration or action of the accused who ultimately drives the deceased to take such extreme step of committing suicide.
32. It is pertinent to mention that several external injuries were noticed on the dead body of the deceased which were ante mortem in nature as per the report of the doctor as Ex. P. 14. Ex. P-12 is the P.M. report which describes the following injuries:
1. Transverse contusion across the lower part of the right thigh 2' above the knee joint 2' in length
2. Haematoma 6' 3' on 'the lower part of the left thigh with abrasion of different sizes on it;
3. Abrasion on the right lumbar region 2';
4. Abrasion on the back of the right thigh 2;
5. Multiple small abrasions on the right hand of different sizes; and
6. Blood stained fluid from the nostrils.
Ex. P-14 is the answer to the query of the Investigating Officer that all the external injuries mentioned at Ex. P-12 were ante mortem in nature. Even in the inquest report such injuries are described.
33. According to the learned Counsel for the defence, possibility of sustainment of the external injuries by the deceased while undergoing convulsions due to poison cannot be ruled out. It is not the case of the defence that she started getting rigors in the house itself because of the pain in the abdomen due to consumption of poison. By the time she came to the hospital she was in an unconscious state of mind and even her heart beat was not recordable. At no point of time, it was suggested either to P.W. 8 or P. W. 11 that she had severe rigors resulting in certain external injuries found on the dead body. If this being the direction of the defence, i.e. explaining the possibility of sustaining injuries by the deceased, the foundation ought to have been made in this regard right from the beginning, i.e. Ex. P-21 UDR complaint. In the absence of the same, the only possible explanation would be that the injuries were result of physical assault made on the deceased by the husband.
34. Ex. D-3 is a letter written to deceased. It was relied upon by the defence to substantiate their defence that deceased was of hypersensitive nature and she was provoking accused to assault her.
35. In this context, the learned Counsel for the defence tried to defend the action of the accused saying one or two incidents of assault by the husband would not constitute an offence under Section 498A. The material brought on record may refer to one or two incidents, i.e. the documentary evidence but the oral evidence of P.Ws. 6 and 7 is to the effect that for noncompliance of demands of the husband and others, deceased was ill-treated in many forms as stated above. This is further strengthened by the contents of Ex. P-3 and the appearance of external injuries on the dead body.
36. At this stage we would like to refer to the contents of Ex. P-7 an inland letter written by the deceased to her mother 3 months prior to her death. In this reference is made to the expenses towards the marriage of her younger sister Yashoda while advising and consoling her mother regarding her inability to fetch the financial needs of the family. At the end of the letter in a subtle way she describes her helpless, indignified and most disrespectable life she was leading in the house of her husband. She explains her condition that though to the outside world everything looked normal, her problems were like fire beneath ash and stone beneath beaten rice. This would only indicate the innumerable problems i.e. the harassment which could not be explained to the outside world by her for so many reasons. She knew the dependency of her mother on her maternal uncles and having regard to her helplessness in every manner, she did not want to add misery to the troubles of her mother. On the other hand, she indirectly tells her mother saying her mother did know about her pitiable condition in the matrimonial home, though exact and definite words of harassment are not disclosed at Ex. P. 7. The gist of the letter would go to show in view of the maternal uncle P.W. 9 constructing a house that year, the marriage of Yashoda should be postponed and she was in a helpless condition to extend any sort of help or assistance to her mother. If she were to be happy in a family which had vast lands and good income from the said lands, it would not be the letter of a person who was respected for giving birth to a son as stated by her husband and father-in-law in their statements.
37. Taking advantage of the reference of construction of a house by P.W. 9 and the need of money for the marriage of Yashoda, defence tried to build up its case subsequently, that as accused No. 1, husband of the deceased refused to extend financial assistance to P.W. 6, deceased was totally depressed and disgusted with her husband, therefore, she committed suicide.
38. Then coming to the facts of the present case, it is the mother, kith and kin, apart from exchange of letters between the deceased and her close relatives, the prosecution is depending upon, so far as harassment and cruelty as contemplated under Section 498A of Indian Penal Code. It is their further case that said cruelty or harassment at the hands of the husband and relatives, she was driven to the stage of committing suicide. It is not only in the contents of Ex. P.9-complaint of the mother, but also in her statement before the Taluk Executive Magistrate under inquest proceedings reveal that from the beginning, the kith and kin of the deceased were definite that the deceased would never commit suicide and some fishy thing has happened. Therefore, investigation has to be done. They reveal the harassment and cruel treatment disclosed to her, not only by the deceased daughter but also by P.W. 7, her nephew. P.W. 9 and other relatives also corroborate the statement of the mother.
39. The statement of mother and other relatives under the inquest proceedings would reveal that initially all of them suspected only the hand of husband of the deceased in committing suicide. Subsequently, there seems to be improvement or attempt to bring the other kith and kin of the first accused into these charges. As a matter of fact the correspondence produced by the prosecution especially the letter written by the deceased to her mother would indicate her grievance only against her husband and not against any other family members. She even goes to the extent of saying though her sister-in-law and brother-in-law were all good-natured persons, but she was destined to suffer at the hands of the husband. In that view of the matter, except against the accused-husband the prosecution has not established the charges against the other accused persons beyond reasonable doubt.
40. It is wellsettled that in the absence of any direct evidence, it would not be out of place to rely on the evidence of kith and kin of the deceased regarding these aspects as such information normally would be within the close circles of the family, in particular the parents and maternal uncle. However, P.W. 7 is the eye-witness to such ill-treatment meted out to the deceased in the matrimonial home which is not only stated by him before the Court but also referred to in the letter at Ex. D.3 written by Yashodasister of the deceased to the deceased. This letter is produced by the accused. We have already referred to the content of Ex. P.7 and the contents of the said letter which would drive at the fact that the deceased did not have any liberty or freedom even to express her feelings and she has explained the same to her mo titer by using synonyms.
41. The question whether she committed suicide on 19.11.1993 because of the harassment meted out to her on one or two stray incidents but as a routine she was harassed day and night and, ultimately, she committed suicide out of disgust. On the one hand, we have the oral evidence and documentary evidence relied upon by the prosecution and on the other hand we have defence theory right from the UDR complaint till the time of arguments. At Ex. P.20-UDR report though the first accused tries to explain the cause for the deceased to consume poison, he never refers to the depression or stubbornness or arrogance of the deceased as he did not agree to part with Rs. 1,00,000 for the marriage of Yashoda alleged to have demanded by P.W.6 and the deceased. Though in so many words he explains how he noticed the deceased at 5.00 a.m. getting up and going out of the bedroom as usual and coming back to the bedroom within 30 minutes. It is not the same statement under Section 233(2), Criminal Procedure Code. At Ex. P.20 he says when he noticed the deceased returning to the room within 10 minutes, he also smeltbad smell which compelled him to question the deceased. In Section 233(2), Criminal Procedure Code statement he says the deceased must have gone to attend the nature's call and had come back to sleep as usual and later on he noticed smell from the deceased who was sleeping. Though both the statements look alike so far as explanation of the accused is concerned, but there is vast difference in the two statements. In the first statement he was awaken and alert when the deceased went out of the bedroom and came back within 10 minutes having bad smell from her person. In the 233(2), Criminal Procedure Code statement he tries to set up a theory that he woke up because of the bad smell and deceased was sleeping. In the first statement, he says deceased insisted to visit her parental house on 18.11.1993 and she was annoyed and to take revenge against him, she took poison on 19.11.1993 without any sort of abetment or investigation from him. In the defence statement after recording under Section 313, Criminal Procedure Code he improves his case by saying the deceased was annoyed with him as he did not pay one lakh rupees for the marriage of Yeshoda, younger sister of the deceased. If this was the case for the depression of the deceased, definitely either in Ex. D.3 or Ex. P.7 reference must have been made to the conduct or unconcerned attitude of the first accused. No such reference is made. This would only establish the fact that taking advantage of contents of Ex. D.3 and certain answers brought on record through the witnesses for the prosecution by the defence, he improved his defence theory. One common feature of these two statements is that he did not attempt to give any explanation so far as external injuries that were found on the dead body are concerned. Only to the post-mortem such confrontation was made. As already stated above, except the husband no one else would have had the knowledge of such external injuries, which were noticed on the dead body by the autopsy doctor. The admitted facts ' are, on 18.11.1993 the deceased was very much alive in the matrimonial home. The first accused was present in the house, she was physically fit and normal till the early hours of 19.11.1993. Both the husband and wife slept in the bedroom of the accused during the night of 18.11.1193 till the early hours of 19.11.1993. Therefore, the accused-husband alone has the special knowledge how the deceased sustained these external injuries. The nature of external injuries i.e. thrombosis (bluish marks on both the thighs) and other abrasions especially on the fore arms of the deceased would indicate there was external force on her between the night of 18.11.1993 and the early hours of 19.11.1993. In the absence of any reasonable and acceptable explanation by the husband, adverse inference has to be drawn against him under Section 106 of the Evidence Act. We refer to the judgment of the Supreme Court in AIR 2006 SCW 5300 paragraph 16,17 and 18:
(B) Penal Code (45 of 1860), Section 300--Evidence Act (1 of 1872), Section 106 Dowry death--Circumstantial evidence--Evidence of witnesses fully establishing that wife was ill-treated, often beaten and sometimes not given food on account of non-fulfilment of demand of money--Information given by accused husband to others that she died due to snake bite-Medical evidence showing that death was due to strangulation--Her body was kept in sitting posture with her back taking support of wall so that no one would suspect that she was strangulated--Injuries found on her body--No explanation given by accused as to how she received those injuries--Recovery of some articles of deceased at pointing of accused--circumstances thus pointing towards guilt of accused-- Conviction proper.
42. Though these injuries were not enough to cause the death of a person in the ordinary course of nature, these injuries are discussed for the purpose of arriving at right conclusion so far as the offence in questions concerned. The consistent statement of kith and kin of the deceased, contents of the correspondence between the deceased, her kith and kin including Ex. D.3 and the presence of external injuries which are ante-mortem in nature on the person of the deceased would persuade us to accept the case of the prosecution that after marriage of the accused and the deceased, her life was miserable at the hands of the husband in the matrimonial home. The cause for harassment, both physical and mental, direct and indirect way was non-compliance of the demand of the accused to give Rs. 1,00,000 as investment for his wine business. This squarely falls under explanation to (b) of Section 498A, Indian Penal Code.
43. Even on the question of charge, we have heard the learned Counsel for the defence who relied on the decision reported in (2002) 7 SCC 414.
44. The question is, in the absence of charge being made under Section 306, I.P.C. whether this Court can proceed with the matter for the offence punishable under Section 306 of I.P.C. For this we refer to the judgment of the Division Bench of this Court reported in ILR 2007 Kar. 2117, wherein this Court relies upon 2006 SCC Criminal 129. Placing reliance on the decision of the Apex Court what ultimately this Court has to consider is whether the accused had an opportunity of understanding and defending the exact charges made against him.
45. The case of the prosecution right from the commencement of the investigation was for an offence punishable under Section 498A, Indian Penal Code. As long as the ingredients of Section 498A, Indian Penal Code are established either in Explanation (1)(a) or (1)(b), it would be proper for the prosecution to contend that the accused did know what was the charge alleged against him. The case being one for commission of suicide by a married woman within 7 years of her marriage and said suicide was on account of cruel treatment, this is the charge against the accused. He has also let in his evidence on these lines. The only question we have to probe is whether it attracts offence under Section 304B or 306 of I.P.C, Section 498A being common to both the provisions, it would not be out of way for the Court to convict the accused for the offence under Section 306, Indian Penal Code. Though charge was for an offence under Section 304B, IPC as the case squarely falls under Section 498A i.e. Part (b) of Section 498A, Section 306 alone is attracted. In view of the presumption under Section 113A of Evidence Act, non explanation by the husband properly i.e. the presence of injuries, he has utterly failed in rebutting initial presumption against him, therefore, we are of the opinion, the Trial Court utterly failed to proceed with the matter on record in the right perspective. On the other hand, it misdirected itself to consider irrelevant things ultimately resulting in injustice to the victim even after the death. The reasoning of the Trial Court on each and every defence is nothing short of perversity. It actually ignored the admitted facts on record. This resulted in miscarriage of justice.
46. We have no second opinion so far as the law laid down by the Apex Court regarding the scope and powers of first Appellate Court in case of acquittal is concerned, but once the reasoning of the trial Judge is an outcome of perversity, this Court has ample power to interfere with the judgment and order of acquittal.
47. The next question would be whether this is a case where two views are possible, i.e. one expressed by the Trial Court, the other by this Court. In view of our discussion and reasoning above, there is no scope for two views and the only reasonable and justifiable view is that the deceased was driven to commit suicide on account of ill-treatment to her which was consistent and continuous after the birth of her son Rakesh, which is established by the prosecution. Therefore, the judgment and order of acquittal deserves to be set aside.
48. In view of the decision of this Court and the Apex Court that when once the accused are not found guilty of the offence punishable under Section 304B of Indian Penal Code they cannot be saddled with the offences punishable under Sections 3 and 4 of the D.P. Act as the subsequent demand was not in relation to the dowry agreed at the time of the marriage, no offence under Section 4 of the D.P. Act is made out.
49. However, we are not inclined to consider the case of the prosecution so far as the offence under Section 6 of D.P. Act is concerned.
50. Under these circumstances, we hold that the judgment and order of acquittal by the Trial Court deserves to be set aside. The first respondent/accused is found guilty of the offences punishable under Sections 498A and 306 of I.P.C. The judgment and order of acquittal so far as the other accused is confirmed.
Heard regarding sentence.
51. We heard the learned Counsel for the respondent/accused and the Additional S.P.P. Definitely the delay in proceedings, i.e. the trial is not attributable to the prosecution and complainant in any manner in this case. Even otherwise that cannot be a ground or mitigating circumstances to reduce the quantum of sentence. On the other hand, we notice young lady of 25 years took the extreme step of leaving the world leaving behind her son who is aged about 10 months. Further she was pregnant of 20 weeks at the time of committing suicide. Because of the attitude and conduct of the husband, she was forced to take this decision despite her love and affection for her children.
52. Therefore, the fact of her son Rakesh being looked after by the accused or educating him properly in a convent cannot be a mitigating circumstance. Accordingly, we proceed to order as under.
53. So far as the offence punishable under Section 498A, Indian Penal Code is concerned, the accused is sentenced to undergo sentence of three years imprisonment and shall also pay a fine of Rs. 5000 in default of the same he shall undergo six months imprisonment.
53.1 So far as the offence under Section 306, Indian Penal Code is concerned we sentence him to undergo imprisonment for 5 years and we also impose a fine of Rs. 10,000 in default he shall undergo further imprisonment for a further period of one year. Both the sentences shall run concurrently. If the fine amount is paid, the same shall be paid to the mother of the deceased i.e. P.W. 6 Gulabi, if she is alive.
53.2 So far as return of the valuable of the deceased is concerned, there is a direction to the effect that they shall be handed over to P.W. 6 and we do not interfere with the said direction. Accordingly, the appeal is allowed.
53.3 The accused shall have the benefit of Section 428 of Criminal Procedure Code.
The bail bonds and surety of the other accused pesons stand cancelled.