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IN THE HIGH COURT OF KARNATAKA, BANGALORE

DATED THIS THE 8TH DAY OF DECEMBER, 2014

:PRESENT:

THE HON’BLE MR.JUSTICE MOHAN.M.SHANTANAGOUDAR

:AND:

THE HON’BLE MR.JUSTICE K.N. PHANEENDRA

CRIMINAL APPEAL NO. 1326/2010 C/W

CRIMINAL APPEAL NO. 597/2010

IN CRL.A.1326/2010 BETWEEN:

STATE BY VIDYARANAYAPURA POLICE STATION BANGALORE ... APPELLANT (BY SRI.B VISWESWARAIAH, HCGP)

AND:

1. SRI. NAVEEN KUMAR, AGED 31 YEARS,

S/O PRASANNA KUMAR

2. PRASANNA KUMAR

AGED 51 YEARS S/O LATE RUDRARADHYA

3. SMT. SUVARNAMMA

AGED 58 YEARS W/O PRASANNA KUMAR

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A1 TO A3 ARE RESIDING AT NO.465, 11th "C" CROSS, 3rd BLOCK, BEL EXTENSION,

VIDYARANAYAPURA BANGALORE-97.

4. SMT. MANGALA GOWRI AGED 35 YEARS W/O SATISH KUMAR

R/AT NO. 570/3, 10th CROSS 4th MAIN, 3RD BLOCK, VIDYARANAYAPURA, BANGALORE.

5. SATISH KUMAR AGED 41 YEARS

S/O PRABHUDEV R/AT NO. 570/3, 10th CROSS, 4th MAIN, 3rd BLOCK VIDYARANAYAPURA BANGALORE. ... RESPONDENTS

(BY SRI. C.H.HANUMANTHARAYA, ADV., )

THIS CRL.A. IS FILED U/S. 378(1) & (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT DT: 28.04.10 PASSED BY THE P.O., FTC-VI, BANGALORE IN S.C.NO.516/04 - ACQUITTING THE

RESPONDENTS FOR THE OFFENCE P/U/S 302, 304-B, 498-A IPC AND SEC. 3 AND 4 OF D.P. ACT. IN CRL.A.597/2010 BETWEEN:

SMT.RATNA AGED ABOUT 60 YEARS W/O SRI. C.R. CHANNAVEERAPPA RESIDING AT NO.A59, BASAVESHWARA ROAD,

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SOMWARAPET, COORG DIST, KARNATAKA ... APPELLANT (BY SMT. SYEDA SHEHNAZ, ADV., &

SRI.V. BALAKRISHNA, ADV.,) AND:

1. SRI. NAVEEN KUMAR AGED 31 YEARS

S/O SRI.PRASANNA KUMAR

2. SRI. PRASANNA KUMAR AGED ABOUT 58 YEARS S/O LATE RUDRARADHYA

3. SMT. SUVARNAMMA AGED ABOUT 58 YEARS W/O SRI. PRASANNA KUMAR 1 TO 3 IS RESIDING AT 465, 11th ‘C’ CROSS, III BLOCK

BEL EXTENSION, VIDHYARANYAPURA, BANGALORE

4. SMT. MANGALA GOWRI AGED 35 YEARS W/O SATISH KUMAR

RESIDING AT NO.570/3 10th CROSS, 4th MAIN, 3rd BLOCK VIDHYARANYAPURA, BANGALORE-560097.

5. SRI.SATISH KUMAR AGED 41 YEARS

RESIDING AT NO. 570/3 10th CROSS, 4th MAIN 3rd BLOCK, VIDHYARANYAPURA BANGALORE-560097.

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6. STATE OF KARNATAKA

BY VIDYARANYAPURA POLICE STATION BANGALORE-560097. ... RESPONDENTS

(BY SRI.C.H.HANUMANTHARAYA, ADV., FOR R1 TO R5, SRI. B.VISWESWARAIAH, HCGP FOR R6)

THESE CRL.APPEALS ARE FILED U/S.372 CR.P.C

PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DT.28.04.2010 PASSED BY THE P.O. FTC-VI, BANGALORE IN S.C.NO.516/2004 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/Ss 302, 304-B, 498-A IPC AND SECs.3 & 4 OF D.P. ACT.

THESE CRIMINAL APPEALS HAVING BEEN RESERVED

FOR JUDGMENT ON 1.9.2014, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT, THIS DAY, K.N. PHANEENDRA, J. DELIVERED THE FOLLOWING:

JUDGMENT

Aggrieved by the judgment of acquittal recorded by the

Fast Track Court & Sessions Judge, Bangalore City, FTC

No.VI, in SC No.516/2004 dated 28.4.2010, the first

informant by name Smt. Ratna-PW13 (complainant) has

preferred Crl. Appeal No.597/2010. So also, the State has

preferred an appeal against the same judgment of acquittal in

Criminal Appeal No.1326/2010.

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2. The Trial Court has tried the respondents herein

who are arrayed as Accused Nos.1 to 5 for the offence

punishable under Sections 498A, 304B, 302 of IPC, also

under Section 3 & 4 of the Dowry Prohibition Act read with

Section 34 of IPC and ultimately found that the accused

found not guilty of the aforesaid offences and consequently,

acquitted them.

3. The brief factual matrix that emanate from the

records are that:

Smt. Ratna and Sri Channaveerappa, parents of the

deceased simpa, examined as PWs. 13 and 16 respectively are

the husband and wife. They have given their daughter by

name Simpa (deceased) in marriage to Accused No.1. The

other accused persons i.e., A2 and A3 are the parents of A1.

A4 Smt. Mangala Gowri and A5 Sathish Kumar are the sister

and brother-in-law of A1 respectively. The marriage between

A1 and Simpa, undisputedly taken place on 5.9.1999. It is

also not disputed that they have got a child of 1 ½ years old

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at the time of the incident. The main case of the prosecution

is that even at the time of the marriage, particularly at the

time of negotiations, the accused persons have demanded

cash of Rs.1 lakh and Jewellary worth Rs.5 lakhs. At the

time of marriage, the said amount was paid as dowry and

Jewelry worth Rs.5 lakhs were also given in consideration of

the marriage. Sometime after the marriage, A1 and Smt.

Simpa lived happily as husband and wife in the matrimonial

home. Thereafter, the accused persons being not satisfied

with the dowry of Rs.25,000/- given at the time of marriage

and the Jewellary have started demanding more money and

articles from the parental house of the deceased. In this

background, it is specifically alleged that there was ill-

treatment and harassment to the deceased which were un-

tolerable. In this backdrop, on 30.5.2002, in the morning

hours as per the prosecution case, at about 7.30 a.m., the

accused persons have killed the deceased by causing burn

injuries by pouring kerosene on her and liting fire in the

lavatory situated in the backyard of their house, which is

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situated at 11th-C Cross, 3rd Block, BEL Extension,

Vidhyaranyapura, Bangalore. The prosecution case further

continues on the allegations that the Accused No.1 secured

the presence of the police giving information that she died in

the lavatory. The Police Constable-CW33 (examined as DW-6)

went to the spot and recorded the statement of A1 and

thereafter, a case was registered by Police in UDR

No.14/2002 and submitted FIR and requested the Taluka

Executive Magistrate to conduct the inquest panchanama.

The Taluka Executive Magistrate – PW20 Mr. N.R. Sudakar

has conducted the inquest panchanama at M.S. Ramaiah

Hospital, where the dead body was shifted by that time.

Thereafter, on the request of the Police, the dead body of the

deceased Smt. Simpa was shifted from M.S. Ramaiah

Hospital to Bowring Hospital for the purpose of conducting

post-mortem examination. On 31.5.2002, the post-mortem

examination was conducted and on the basis of the

statements of the father and the mother of the deceased, the

Police have registered a case in Crime No.86/2002 against the

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accused persons for the offence punishable under Section

498A, 304B, and 302 of IPC and also u/s. 3 & 4 of the Dowry

Prohibition Act read with Section 34 of IPC.

4. The records disclose that at the initial stage A2 to

A5 were enlarged on bail and subsequently A1 was also

enlarged on bail. The Trial Court, after going through the

contents of the charge sheet, has framed charges against the

accused persons for the offence punishable under Sections

498A, 302, 304B and also under sections 3 and 4 of Dowry

prohibition act, read with Section 34 of IPC. The prosecution

has proceeded with the trial and examined as many as 24

witnesses PWs.1 to 24 and got marked Exhibits P1 to P63

and MOs.1 to 48. The accused were examined u/s.313 of

Cr.PC and called upon the lead defence evidence if any. The

accused persons have also examined as many as 7 witnesses

as DWs.1 to 7 and got marked Exhibits D1 to D107.

5. (a) The prosecution witnesses examined particularly,

PW1 Mr.Ravikumar, PW-10 Srinivas and PW-19 Narasimha,

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who are the panch witnesses to the inquest panchanama and

they have seen the dead body and also attested the

panchanama and spoken to about the conducting of the

inquest panchanama.

(b) PW2 is the seizure mahazar witness for Exs.P3 and

P4, wherein, A1 handed over gold and silver ornaments to the

Police in his house.

(c) PW3 is also another panch witness who is no other

than the co-brother of A2 by name G. Mahesh, who was

present at the time of the dead body being taken out from the

toilet and the Police have conducted mahazar at that spot and

he is the signatory to the spot panchanama and during that

panchanama MOs.1 Kerosene container and MO2 match box

were recovered.

(d) PW-4 Sri G. Umesh, another panch witness for

seizure of some gold and silver ornaments by CCB Police

produced by A3 under Exs.P5 and P6.

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(e) PW5 one Mr. Guruswamy is no other than the

brother of CW10 who speak about the negotiations held prior

to the marriage between A1 and A2 and also he speak about

the demand of dowry etc.,

(f) PW-6 Mr. S.C. Chandrasekhar is the neighbor of

the complainant at Somawarpeth. He also speaks about the

negotiations and demand of dowry and also he has seen the

dead body and he also speaks about the injuries on the dead

body.

(g) PW7 H.B. Krishnappa also deposed in the similar

manner as that of PW6 stating about the negotiations in

demand of further dowry and injuries on the dead body.

(h) PW-8 Suma is no other than the sister of the

paternal aunt (father’s sister of the deceased). She also

deposed about the demand of further dowry and torture by

the accused persons as well as the injuries on the dead body.

(i) PW-9 Rekha Mohan also speaks in similar manner

as that of PW8.

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(j) PW-11 Sri R. Naganna is the PSI of

Vidhyaranyapura Police Station. He speaks about his visit to

the house of A1 on the date of the incident at about 8.45 a.m.

and recorded the statement of A1 through his writer and

registered a case in UDR No.14/2002 and also requested the

Taluka Executive Magistrate to conduct the inquest

panchanama.

(k) PW12 Champa is the sister of the deceased. PW13

Smt. Ratna, mother of the deceased, PW15 Nagaraj is genetive

brother of the deceased, PW16 Channaveerappa is the father

of the deceased have all spoken to about the negotiations in

demand of dowry by A1 to A3 and further demand of dowry of

Rs.10 lakhs etc., and torture and harassment given to the

deceased and also the accused persons have killed the

deceased by pouring kerosene on her and liting fire.

(l) PW-14 A.S. Umesh has deposed about the demand

of dowry after the marriage and also about the galata taken

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place at the house of the accused on the previous day and

also saw the dead body and injuries on the dead body etc.,

(m) PW17 Dr. Beemappa Havanur is the doctor who

was working in the Bowring Hospital during the relevant

point of time has conducted the P.M. examination on the

dead body of the deceased Simpa and issued PM report as per

Ex.P-32 and also given information to the Police and

answered the queries of the Police.

(n) PW18 K. Ajjanna, Inspector of Police, who

registered a case in Crime No.86/2002 as per Ex.P44 and

dispatched the First Information Report to the court as per

Ex.P43 on the same evening on which day, the case was

registered.

(o) PW19 one N.M. Narasimhan is the Medical Shop

owner in JP Nagar, Bangalore, who also speaks about the

galata in the house of Accused No.1 on the previous day.

(p) PW21 Dr.M. Somashetty, HOD of Forensic Lab, MS

Ramaiah Hospital has deposed before the Court with regard

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to the receipt of the dead body of the deceased and thereafter,

the dead body was shifted to Bowring Hospital for the

purpose of PM examination.

(q) PW-22 ACP Sri V. Thimmappa in fact is the brother

who conducted partial investigation in this case has deposed

about the seizure of some gold ornaments at the instance of

A1 to A3.

(r) PW-23 Sri S.P. Naik is the Investigating Officer,

who has deposed about the investigation done by him,

recording of the sworn statement of the witnesses with regard

to the demand of further dowry, harassment by the accused

both physically and mentally etc.,

(s) PW-24 Sri Panduranga Rao, ACP has completed the

investigation after taking over the same from PW-22 and he

subsequently handed over the investigation to PW23 and

ultimately, charge sheet has been filed against the accused

persons.

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6. We have heard the detailed and very lengthy

arguments addressed by the learned High Court Government

Pleader appearing for the State and also Sri V. Balakrishna,

learned counsel, appearing for the appellant/complainant in

Criminal Appeal No.597/2010.

7. The arguments of Sri B.Visweshwaraiah learned

High Court Government Pleader and Sri V. Balakrishna,

learned Counsel for the complainant are almost similar. On

the same grounds, they have challenged the judgment of

acquittal of the trial Court. Apart from describing the factual

matrix of the case in their Memorandum of Appeals and at

the time of arguments, it is specifically contended that the

trial Court has committed a serious illegality in acquitting the

accused for the offences charged against them. In fact, the

evidence of PWs.6, 7, 12, 13 and 16 unequivocally establish

the case against the accused persons beyond all reasonable

doubt. The accused persons have demanded dowry, gold

articles prior to the marriage, received the same at the time of

the marriage and also subsequently, demanded heavy

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amount of dowry and for that reason, they have ill-treated

and harassed the deceased and ultimately killed her by

pouring kerosene and litting fire. Their evidence fully

corroborated with the evidence of other witnesses i.e., PW5

Guruswamy and sister of the deceased by name Champa,

Suma, Rekha Mohan and father and mother of the deceased

by name Ratna and Channaveerappa. The evidence of PW15

Nagaraja and evidence of the father of the deceased have also

not properly appreciated by the trial Court though the

allegations made against the accused with regard to the

demand of dowry, receiving of the dowry and gold articles and

subsequent demand of dowry, ill-treatment and harassment

given to the deceased has been proved by the prosecution

beyond all reasonable doubt. The trial Court failed to

consider the evidence of the doctors with regard to the Post

Mortem report, inquest report and also the opinion of the

doctor as well as the Taluka Executive Magistrate with regard

to the death of the deceased Simpa. The trial Court also

failed to consider that the accused persons have not properly

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explained as to how the death was occurred, what is the

reason for the death and non-explanation by the accused has

not been properly appreciated by the trial Court and thereby

committed serious error in acquitting the accused.

8. Sri Balakrishna, learned Counsel for the complainant

has further elaborately contended that the trial Court has not

appreciated the statements of the accused u/s.313 Cr.PC in

proper perspective. For several questions, the accused have

not properly given answers and the trial Court has failed to

appreciate that those improper answers are in addition to the

proven case of the prosecution fill up the doubts in the

prosecution case, those improper answers could have been

considered as additional circumstance against the accused in

support of the case of the prosecution.

9. The learned High Court Government Pleader as well

as the learned Counsel for the complainant have also cited

several rulings in this regard which are discussed in

succeeding paragraphs while appreciating the evidence.

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10. Sri C.H. Hanumantharaya learned Counsel for the

accused with all force countered the arguments of the learned

High Court Government Pleader as well as the learned

Counsel for the complainant. He has specifically contended

that the trial Court has appreciated the materials on record

by taking all care and caution by giving equal importance to

the evidence of the prosecution witnesses and also the

defence witnesses. The trial Court has appreciated the

evidence considering the contradictions, omissions which are

serious in nature elicited during the course of cross

examination of the witnesses proved through the evidence of

the Investigating Officers. He has specifically contended that

the case of the prosecution has been made from time to time,

from the time of the First Information Report and the

subsequent statements of the witnesses. Further, he

contended that there is sufficient material to show that the

Post Mortem report has been manipulated and the said

document amply proves that the prosecution witnesses want

to implicate the accused falsely into the crime to make believe

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the court that suicidal death of the deceased to that of

murder by the accused persons. He has taken us through

the evidence of the witnesses and also specifically the

evidence of the Taluka Executive Magistrate, the doctor and

other witnesses and also particularly the evidence of the

Investigating Officer to show that the entire evidence of the

prosecution witnesses is nothing but improvement by stage

by stage. Therefore, the trial Court, after considering the

above said aspects in detail, has specifically come to the

conclusion that the prosecution had not proved the case

beyond reasonable doubt.

11. He has also humbly urged before this Court that

when the trial Court has acquitted the accused persons, it is

doubly made sure that the accused persons are innocent.

While dealing with the acquittal judgments, the court must be

very careful in reversing the judgment unless the judgment of

the trial Court is so erroneous, illegal and it bites the

conscious of the court. Therefore, he contended that there is

no room for this court to interfere with the well-reasoned

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judgment of the trial Court. Hence, he has pleaded for

confirmation of the said judgment of acquittal passed by the

trial Court.

12. We have also carefully perused the entire judgment

of the trial Court. The trial Court after forming the points for

consideration has come to the definite conclusion on

appreciation of the materials on record that the prosecution

has not proved the case beyond reasonable doubt and the

defence which are cropped up in the case go to the root of the

prosecution case and there is no material to show that the

accused persons have committed the murder of the deceased.

With reference to the demand of dowry prior to the marriage

and receipt of the dowry and cash of Rs.25,000/- at the time

of marriage is not at all supported by the sufficient convincing

and acceptable evidence by the court. Further trial court also

elaborately discussed with regard to subsequent demand of

dowry of Rs 10,00,000/- and held that such demand and

receipt of Rs 5,00,000/- are also not proved to the

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satisfaction of the Court. Hence, the trial Court has acquitted

the accused persons.

13. Appreciating the above said arguments submitted

by the learned Counsels and also on looking to the judgment

of the trial Court, it is clear that the trial Court has written a

very lengthy judgment and appreciated the material on record

and drawn some inferences and concluded the judgment by

acquitting the accused persons.

14. The Court should bear in mind that when the

accused persons are acquitted by the trial Court, the

appellate court normally should not interfere with such

judgment particularly, when the case is based on

circumstantial evidence and also the evidence of the close

relatives of the victim.

15. It is worth to note here the decision of the Hon'ble

Apex Court reported in (2007)4 SCC 415 between

Chandrappa and Others Vs. State of Karnataka, wherein the

Hon'ble Apex Court has held that following general principles

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regarding powers of the appellate court to be borne in mind

by the court while dealing with an appeal against an order of

acquittal. The relevant portion reads as under:-

(1) An appellate Court has full power to review,

re-appreciate and reconsider the evidence upon which

the order of acquittal is founded.

(2) The Code of Criminal Procedure 1973 puts no

limitation, restriction or condition on exercise of such

power and an appellate court on the evidence before it,

may reach its own conclusion both on questions of fact

and law.

(3) Various expressions, such as “substantial and

compelling reasons” , “good and sufficient grounds”,

“very strong circumstance”, “distorted conclusions”,

“glaring mistakes” etc., are not intended to curtail

extensive powers of an appellate court in an appeal

against acquittal. Such phraseologies are more in the

nature of “flourishes of language” to emphasize the

reluctance of an appellate court to interfere with

acquittal than to curtail the power of the court to review

the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in

mind that in case of acquittal, there is double

presumption in favour of the accused. Firstly, the

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presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless

he is proved guilty by a competent court of law.

Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reinforced,

reaffirmed and strengthened by the trial Court.

(5) If two reasonable views are possible on the

basis of evidence on record and one favorable to the

accused has been taken by the trial Court, it ought not

to be disturbed by the appellate court.”

16. Consistent with the above said observations made

by the Hon'ble Apex Court, there are catena of rulings

wherein the Hon'ble Apex Court had amply made it clear that

in a case based on circumstantial evidence and when the

case mainly rests on the interested witnesses testimony

under which, the conclusion of guilt is to be drawn, should

be fully proved and such facts and circumstances must be

conclusive in nature. All the factual aspects and

circumstances should be complete and there should be no

loop hole left in the chain of evidence. The proof must be

complete, consistent and cogent, only with hypothesis of the

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guilt of accused and totally inconsistent with the innocence

of the accused. We are also conscious and cautious of the

principles that accused is presumed to be innocent unless

his guilt is proved. But the innocence of the case is fortified

by the acquittal of the accused persons by the trial Court.

The Appellate court normally should not interfere with the

judgment of acquittal except in exceptional circumstances

and for compelling reasons and in that event it should not

hesitate to reverse the judgment of acquittal. The court has

to bear in mind the findings recorded by the trial Court if it is

perverse, illegal and the conclusion arrived at by the trial

Court is contrary to the evidence on record or the entire

approach of the trial Court with respect to dealing with the

evidence is patently illegal, leading to miscarriage of justice,

or if the judgment of the trial Court is so un-reasonable and

based on erroneous understanding of the facts of the case,

then the appellate court can interfere with such judgments.

If for any reason, the appellate court comes to a different

view as that of the trial Court, it should also bear in mind

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that the view taken by the trial Court is also possible on the

basis of the material on record; and that, such view also

should not be interfered with.

17. Keeping in mind the above said valuable

principles, let us deal with the present case on hand.

18. On over all analysis of the entire materials on

record, in our opinion, three important points crop up for

consideration of this court:

(1) Whether on the basis of the facts and

circumstances of the case, prosecution has proved

beyond reasonable doubt that deceased Simpa

D/o.PW16 died a homicidal death or a suicidal

death.

(2) whether the prosecution proves beyond

reasonable doubt that the deceased Simpa has died

an un-natural death (Suicidal death), within seven

years of marriage and soon before her death, she

was subjected to cruelty or harassment by the

accused persons in connection with any demand of

dowry or whether, the accused persons have abated

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the commission of such suicide by the deceased by

means of their conduct.?

(3) Whether the prosecutions proves beyond

reasonable doubt that the accused persons treated

the deceased with cruelty in demand of dowry or for

any other reasons which are sufficient to drive her

to commit suicide.

POINT NO 1.

19. In order to deal with the first point, this Court has

to consider the materials on record. According to the overall

case of the prosecution case is. A1to A3 with an intention to

extract more dowry and money from the deceased started

quarreling with the deceased on the previous day. On the

date of the incident, they killed her inside their house, and

after her death, in order to make believe the public that she

has committed suicide, they took the dead body and put the

same in a sitting posture in the lavatory situated outside the

house and poured kerosene on her and lit fire.

20. The prosecution has also relied upon some of the

injuries on the dead body i.e., to say three injuries on the

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dead body in detail we discuss about the injuries little later.

It is the case of the prosecution that the accused after

committing the murder of his wife, did not shift the dead

body to the Hospital but they first secured the Police in order

to create the evidence in their favour. Therefore, looking to

the circumstances, it is crystal clear that it is not a suicide

but a murder. For this, the prosecution has relied upon the

evidence of PWs.1, 10 and 19 who are the inquest panch

witnesses at the initial stages, who have actually seen the

dead body.

21. Before adverting to the evidence of these

witnesses, it is just and necessary to have a brief look at the

First Information Report submitted by the mother and father

(PW 13 and 16) of the deceased which is marked at Ex.P13,

so far as it relates to the death of the deceased and how it

has taken place according to the witnesses. The inquest of

the dead body was conducted in the MS Ramaiah Hospital by

the Taluka Executive Magistrate on 30.5.2002 at 4.00 p.m.

and it was concluded at 6.00 p.m. At 6.15 p.m., the First

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Information Report was lodged and a case has been

registered in Crime No.86/2012 for the offence punishable

under Section 498-A and 302 of IPC.

22. In this context the learned counsel Sri Balakrishna

relied upon a decision of the Hon’ble apex court reported in

AIR 1975 S.C.1252 between Pedda Naryan and others Vs

State of Andhra Pradesh, where in the Hon’ble Apex court

observed that,-

There is no need to mention every minute detail in the

FIR mentioning the overt acts of each and every

accused.

It is neither customary nor necessary to go in detail to

narrate the story of prosecution. The object of Section

174 is very limited. It can only be used for the purpose

of ascertaining whether a person has died under

suspicious circumstances or an un-natural death, and if

so what is the apparent cause of death. It is contented

in this background the court has take into consideration

the contents of FIR and the inquest. Therefore we feel it

just and necessary to have the brief account of FIR and

the Inquest panchanama and then we would like to

discuss the evidence on record to find out whether the

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contents of these documents play any dominant role in

the case.

The gist of the First Information Report is:

that on the previous day of the incident at about 3.00

p.m., the accused No.2, father of A2, has called the

mother of the deceased (PW13) stating that their

grandson (son of the deceased) has been assaulted by

the deceased on the ground that he was grumbling for

taking any food and they requested the father and

mother of the deceased to immediately go over to

Bangalore and to advice their daughter properly and

they also stated that they are not responsible if she

commit anything to herself. At about 5.00 p.m., the

father and mother of the deceased tried to contact A1,

but they could not get him over phone. Up to 10.00

p.m., on 30.5.2012 they waited. On the date of the

incident at about 8.45 p.m., A2 called the parents of the

deceased and informed them that Simpa is dead and

immediately asked them to go over to Bangalore and

they saw the dead body in M.S. Ramaiah Hospital,

Bangalore at about 4.30 p.m., and stated that their

daughter is a Law Graduate and she is not a lady who

could commit suicide and therefore they suspected the

death is a homicidal death at the hands of the accused

as such they requested the Police to take action against

the accused.

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Nowhere in the FIR, have they stated as to how the incident

has happened and how the deceased died and also nothing

stated about the injuries on the dead body of the deceased.

23. Coming to the evidence of PW2, 10 and 19 who are

the inquest panch witnesses, which discloses that they are

friends of PW15 Nagaraj. Nagaraj is no other than the

brother of the deceased. It is specifically stated by them that

PW20 Taluka Executive Magistrate has conducted the inquest

and they found at the time of inquest itself a portion of the

index finger of the deceased was chopped off and there was a

scratch injury on the palm and it was depicted in the inquest

panchanama. They also stated that there was a stab injury

on the person of the deceased. On perusal of the inquest

panchanama which is marked at Ex.P2 at column No.7, it is

specifically written that no external injuries were found on the

dead body except the burn injuries. It is also to be taken note

of, that the cause of the death at column No.3 that accused

person No.1 has screamed for help on that particularly day,

on seeing the deceased inside the lavatory, bolted from inside,

30

flames and smoke coming out from the lavatory and

thereafter, the door of the lavatory was broke open and water

was poured inside the lavatory and the said death was due to

burn injuries. Even at column No.5 also, the inquest report

shows that there are no other injuries on the dead body. The

statement of the father of the deceased PW16

Channaveerappa was also recorded at the time of inquest. In

his statement, he also never stated anything about the

serious injuries on the dead body which were visible. What is

stated by PW16 is nothing but reiteration of the First

Information report and nothing more than that. Column

No.11 also shows that panch witnesses have opined that

death was due to the burn injuries. When such being the

case, it appears, the panch witnesses have improved their

version during the course of the evidence. But in the course

of cross examination, they have admitted that at the time of

inquest, the Taluka Executive Magistrate has narrated the

physical features of the dead body and also specifically about

the burn injuries and peeling of the skin and not finding any

31

other marks. They also admitted that they did not bring to

the notice of the Taluka Executive Magistrate regarding any

injury to the index finger or any other parts on the dead body.

PW19 in fact has in the course of examination in chief itself

has deposed that he observed the stab injury on the palm and

cut injury to the index finger. But nobody has stated in the

course of cross examination that they have appraised this fact

to the Taluka Executive Magistrate. Of course, during the

course of the Post Mortem examination, these injuries appear

to have come to the light. The panch witnesses to the inquest

and the evidence of the PW16 compared to his earlier

statement before the Taluka Executive Magistrate and in the

First Information Report, it is clear that there is nothing on

record with regard to the visible injuries on the dead body.

Therefore, it is very difficult to draw any inference that these

injuries are in any manner caused by any person during the

life time of the deceased.

24. The learned Counsel Sri Balakrishna has

strenuously argued that during the course of Post Mortem

32

examination, it is very much made clear that those injuries

were found on the dead body and blood was present in the

said injuries and the doctor has also specifically and

categorically stated that those injuries are ante mortem in

nature and could be caused by means of knife or other sharp

edged weapon. Therefore, he argues before the court that A1

has committed the murder first stabbing and thereafter bring

the dead body to the lavatory, and there after poured

kerosene and lit fire on the body of the deceased.

25. Countering the above submissions, the learned

Counsel for the accused Sri C.H. Hanumantharaya

strenuously contends that if the evidence of the doctor and

the Post Mortem report is properly understood and

meticulously observed, it clearly reveals that the over

handedness of the complainant and the witnesses colluding

with the doctors created such evidence in order to improve

the case of the prosecution. Therefore, he draws the

attention of the court as to why the dead body was shifted

from M.S. Ramaiah Hospital to the Bowring Hospital.

33

26. In the above said backdrop the evidence of PW21

Dr. Somshekar play an important role. He deposed that he

was on duty in the M.S. Ramaiah Hospital on 31.5.2002. He

has deposed that the Taluka Executive Magistrate has

conducted the inquest panchanama on the dead body. After

about 15 minutes of the inquest, this witness has received a

requisition from Vidhyaranyapura Police, requesting to shift

the dead body to the Bowring Hospital as the parents of the

deceased suspected that some Doctors in M.S.Ramaiah

Hospital are related to the accused.

27. It is worth to note here the document Ex.P52

written by PW16 who made a request to shift the dead body

from M.S. Ramaiah Hospital to Bowring Hospital, wherein it

is categorically stated that some of the doctors who are

related to the accused are working in M.S. Ramaiah Hospital.

Therefore, PW16 has specifically suggested the name of

Bowring Hospital wherein the Doctor by name Sarvamangala

who is related to the parents of the deceased was working.

In fact, the prosecution witnesses, particularly PW17 has

34

admitted this aspect as to one of the doctor is relative to the

deceased.

28. Be that as it may, PW17 Dr.Havanur has

conducted Post Mortem examination on the dead body. The

Post Mortem examination report clearly discloses that the

deceased has sustained three injuries over neck, face front

and back of chest and abdomen, as follows:

i) Incised wound found on the middle portion of the right

palm measuring 2 cm x 0.2 cm x 0.5 cms.;

ii) Incised wound 3cm below the right Metacarpus of the

right index finger measuring 1.5 cm x o.25 cm x 0.25 cm.

iii) Stab wound on the left side of the front of the abdomen

measuring 2.5 cm x 0.25 cm, abdominal cavity deep.

It is stated that those were ante-mortem in nature.

Mentioning the same, PW-17 has issued the PM report as per

Ex.P32. He also gave his opinion that those injuries could be

caused by a sharp weapon like blade and by a single edged

weapon like knife. The doctor has also issued his opinion as

35

per Ex.P-34 stating that injury Nos.1, 2 and 3 noted above

could not cause the death of a person.

29. It is further observed by this court that during the

course of cross examination of the doctor, Ex.P45 and P46

were shown to the witnesses. Those are the Form No.146 (I)

and 146(II). The forms sent to the doctor by the Taluka

Executive Magistrate in which it was brought to the notice of

the doctor that the deceased bolted the toilet from inside,

poured kerosene herself and lit fire and after seeing these two

documents, it is brought to the notice of the doctor that there

is no mention regarding presence of the blood at the stab

wound, as such in Ex.P32.

30. The learned Counsel for the accused has

elaborately argued that the Investigating Officer has sent a

letter to the doctor as per Ex.P49. Ex.P35 is the reply and in

Ex.P35, there is no blood in the abdominal cavity but in

Ex.P32 it is stated so.

36

31. The learned Counsel for the accused, brought to

our notice the cross examination portion of the doctor in

order to establish the manipulations of inserting the words

“blood present in the wound” at page 12 of the evidence of the

doctor in his further examination dated 2.4.2008, wherein the

doctor has stated that “I agree that the wordings “blood

present in the wound” written in the portion of the Post

Mortem report vary from the earlier writing at the same

portion. It is denied by him that the words “the blood present

in the wound after the description of the injury at Ex.P32

being written subsequently.”

32. We have seen the original Post Mortem report

marked at Ex.P-32, wherein it is noted at page 2 that while

describing abdomen, it is stated that peritoneum is pierced on

the left side of abdomen (lower part). But, after dissection,

while explaining the abdomen portion of injury, nothing has

been stated with regard to the presence of the blood present

inside the wound. On the other hand, while describing the

external injuries itself, the presence of the blood in the wound

37

has been described. The depth of the injury is also

mentioned while describing the external injuries itself,

whereas it is not stated so while explaining the abdomen.

Therefore, what is found in page No.4 with regard to the

presence of the blood in the wound is not explained at page

No.2 while explaining the abdomen after dissection. Though

the doctor has admitted this, but he has not explained as to

how he could say while describing the external injuries about

the depth of the injury. On careful perusal of the Post

Mortem report, it discloses the presence of blood in the

wound. Wherever the words “presence of blood in the wound”

finds a place in the Post Mortem report, they are of different

fonts appears to be written subsequently.

33. In this background, now we will come back to the

evidence of the doctor PW-17 in this regard. At page 12 of his

evidence, he has admitted that he do not remember that the

words “the blood present in the wound” was written after the

description of the injury at Ex.P32 being written

subsequently. But he denies that those words are inserted

38

subsequently. Looking to the above said circumstances, a

doubt is definitely created in the mind of the court as to why

and how the doctor can note the presence of the blood in the

wound while explaining the external injuries even before

dissecting the body. There is no such explanation available in

the evidence of the doctor. Perhaps, that may be the reason

to explain that the injuries were ante-mortem in nature and

the doctor must have noted the same with regard to the

presence of the blood in the wound. The court should not

ignore the admission of the Investigating Officer that he has

been receiving instructions from the Director of prosecution

so far as the investigation of this case is concerned.

34. Be that as it may, the doctor has explained the

injuries as ante-mortem in nature. However, the doctor has

categorically stated that the injuries are very trivial and

simple in nature not sufficient to cause the death. The

Taluka Executive Magistrate not at all observed the injuries at

the time of the inquest. Perhaps that may be the reason to

write those injuries are trivial and simple in nature and also

39

burn injuries being present on the dead body. The learned

Counsel has rightly contended that the Post Mortem report

Ex.P32 shows that the margins of the injuries are clear cut

and that was due to burns, margins cannot be clear cut if

really they were ante-mortem in nature and they should be

even edged. The learned Counsel also successfully

persuaded us that there is doubt with regard to the injuries

being ante-mortem or post mortem. He drew our attention to

the evidence of the doctor PW-17 at page 17, wherein he

admitted that, when a person dies, first he meets a somatic

death and then molecular death. He explains that the

somatic death is nothing but stopping of the functioning of

the brain, heart and respiratory function, this occurs about 5

to 10 minutes after stoppage of supply of oxygen. Molecular

death is nothing but the death of the individual cells of the

different organs of the body. In case of somatic death

followed by the injuries suffered by such person between

somatic death and Molecular death, those injuries simulate

ante mortem injuries. In view of the above, the learned

40

Counsel has also successful in creating doubt in the mind of

the court that in this case, the dead body was inside a

lavatory, situated outside the house of the accused, which

was bolted from inside. It is also a fact proved before the

court by the prosecution itself, that the door was broken by

the Police and then the dead body was dragged out from the

lavatory, through the broken door, there may be chances of

broken pieces of door coming in contact with the body of the

deceased causing such simple and trivial injuries. By that

time, the deceased must have died and it may be somatic

death and thereafter, the injuries being caused before the

molecular death. Therefore, there are chances of confusion of

those injuries as ante mortem. In view of the circumstances

prevailing in this case and also the evidence of the doctor and

also the evidence of DW.6 Head Constable who has dragged

the dead body from the lavatory, it creates a serious doubt as

to the nature of injuries as ante-mortem. More over the

doctor has clearly opined that the above said injuries cannot

cause the death of a person. However, a doubt is created in

41

the mind of court, whether in order to help the prosecution,

the doctor has inserted the words “blood present in the

wound” subsequently after writing the Post Mortem report.

This doubt in our opinion goes a long way so far as the

prosecution case is concerned.

35. The other circumstance which the prosecution

would like to establish before this court as argued by the

learned High Court Government Pleader and also the learned

Counsel Sri Balakrishna for the complainant is that, A1 to A3

were alone in their house with the deceased. Particularly on

the day of the incident, A1 was very much present with the

deceased when the incident took place. He had drawn our

attention to Ex.P59, which is a sketch of the house and

submitted that the incident was not taken place in the toilet,

but inside the bathroom in the house. He concentrated on

the conduct of the accused that he has not made any efforts

to save the wife nor telephoned to the doctor, but immediately

informed the Police. He draws our attention that the lavatory

could be bolted from outside. Actually, the murder was

42

committed inside the house and thereafter, the dead body

was put in the lavatory, lit fire to the body after pouring

kerosene and thereafter the door of the lavatory was bolted

from outside itself, so as to make it appear to the public that

the deceased went inside the lavatory and committed suicide.

There is no reason as to why the said lady has to go to the

toilet outside when there is a toilet inside the house also. He

also draws our attention that the matchbox, plastic bucket

were intact inside the lavatory and it creates a serious doubt

with regard to the conduct of the accused. He also contended

that the accused No.1 in his statement also admitted that he

was present at that relevant point of time.

36. He specifically contends that A1 has admitted in

his statement that he denies that the deceased has committed

suicide; therefore, it should be treated as a murder. There is

absolutely no explanation by the accused as to how the

deceased died.

43

37. In this context he relied upon some of the

observation on facts by the apex court and submitted that

under similar circumstances the apex court found the

accused guilty

38. In the decisions reported in AIR 1992 SC 2045

between State of U.P. Vs Dr Ravindra prakash Mittal, and

2006 AIR SCW 5300 between Trimuk Maroti Kirkan Vs State of

Maharashtra, wherein the Supreme Court has observed thus:-

“The husband committing the murder of his wife,

medical evidence disclosing that she died of strangulation

and her body was set on fire thereafter. The

circumstances indicating that none other than the

accused had access to the room where the wife died. The

accused has to explain the death of the deceased.

Regarding conduct of the accused it is observed

that, in a circumstantial evidence case, the husband

committing the murder of his wife, medical evidence

disclosing that she died of strangulation and her body

was set on fire thereafter. The circumstances indicating

that none other the accused had access to the room where

the wife died. Accused has to explain the death of the

deceased.

44

39. He also relied upon some other rulings regarding

conduct of the accused, reported in 2009 AIR SCW 3381

between State of West Bengal Vs Deepak Haldar and another.

2010 AIR SCW 419 between Jayabalan Vs union territory of

Pondicherry. 2010 AIR SCW 7144 between Sathyanarayan

Tiwari and another Vs State of U.P. Wherein the apex court

observed that,

The Conduct of the accused plays a dominant role.

The doors and windows of the house were kept closed at

the time of the incident. The deceased was assaulted by

accused/husband prior to the incident. Later, she was

put on fire by pouring kerosene. The accused did not

make any efforts to put off the fire nor made any

arrangements for treatment. On the other hand, he was

found abusing the deceased and her relatives, no

evidence to show that the death was due to burst of the

stove. Circumstances clearly lead to the inference of

guilt of the accused.

40. All the above said rulings rendered on the basis

of the facts of the respective cases, no principle as such laid

down except that the conduct of the accused in the criminal

cases also to be taken into consideration by the courts

45

dealing with especially in bride burning cases. Therefore the

court has to consider those decisions depending upon the

facts and circumstances of the cases. It is a very well know

phenomenon that no two cases are similar in all respects.

Each and every case has got its distinctive and individual

characteristics. Therefore the court has to apply the above

principles to the facts and circumstances of each case.

41. Per contra, the learned Counsel for the accused

strenuously contended that A2 to A5 were not all present at

the time of the incident, they were not known as to the

deceased went into the Toilet situated outside the house and

committed suicide. Accused No 1 (DW1) in his evidence

explained as soon as he saw the smoke coming out from the

lavatory he came out with hue and cry and immediately

informed the Police in order to save his wife. Within short

span of time DW6 Maregowda came to that particular spot,

broke open the door, then only he came to know about the

suicide committed by his wife and thereafter the dead body

46

was dragged out from the lavatory and shifted to the

Hospital.

42. Looking to the above said submissions, it is seen

from the records, particularly the evidence of DW1 that he in

fact in his examination in chief explained that as soon as he

came near the lavatory and suspected his wife might be

inside, in order to open the door, he kicked the door with his

legs and tried to broke open the door, but he could not open

it, as the toilet door was bolted from inside. In the mean

while, people gathered and he also tried to extinguish fire by

pouring water to inside the toilet and thereafter only he

informed to the Police. The court cannot expect a particular

set of reaction from all the persons, as varieties of men, may

have varieties of behavior. Merely because A1 informed the

Police, before informing the doctor and taking the deceased

to the Hospital, it cannot be said that his attitude is

abnormal. Perhaps may be the reason that if he informs the

Police they would quickly take action and shift the deceased

to the Hospital. This also cannot be ruled out. DW-1 has

47

further deposed that the Police broke open the door and then

dragged the dead body of the deceased, by that time; the

dead body was completely burnt. In fact, even much before

DW1 gave such explanation before the court, but soon after

the incident, his statement was recorded by the Investigating

Officer as per Ex.P39 on which basis the Police have

registered a UDR Case earlier. In the course of cross

examination, DW1 has denied that even much earlier to the

Police came to the spot, he already made a hole on the door

of the toilet, because, he actually kept the dead body to

facilitate himself to bolt the lavatory from outside, he

hatched such plan, but those suggestions are denied. Even

accepting for a moment, the conduct of the accused is

suspicious. But, the said explanation given by the accused

is fully corroborated and fortified by the evidence of DW6. In

this background, his evidence plays an important role.

43. DW6 Maregowda, Head constable, in fact is a

prosecution witnesses cited as CW31. He was not examined

by the prosecution for the reasons best known to the

48

prosecution. He has deposed before the court that on the

date of the incident, after receiving the telephone message,

he went to the spot along with the Investigating Officer at

about 8.15 a.m. by that time, 30 to 40 persons were already

gathered, and DW1 (Accused) was also present. He has

categorically stated that there was a hole in the lavatory door

and he made the hole big by breaking the door with a stone.

He categorically denied that the hole was sufficient to unbolt

the door from outside itself. He has categorically stated that

the hole was not sufficient to unbolt the lavatory from

outside. Therefore, he made all his efforts to broke open the

door by kicking and stoning the door in order to enlarge the

hole and thereafter he dragged the dead body to outside the

lavatory. The evidence of DW6 cannot be easily brushed

aside. Nowhere is it elicited that he has got any animosity or

ill-will against any of the prosecution witnesses nor it is

elicited that he is interested witness so far as the accused is

concerned. He being the prosecution witness has deposed

before the court as to what he has stated before the Police.

49

But, the evidence of DW1, DW2 and DW6 goes to show that a

small hole in the said door of the toilet was made big by

breaking the same with a stone and thereafter, removed the

dead body.

44. DW3 is another witness by name Smt. Rashmi.

She has stated that when she came to the spot, A1 was

present and was making efforts to extinguish fire by pouring

water inside the toilet and in the mean while the Police came

there. She also supported the evidence of DW1 as well as

DW6. In view of the above said evidence on the accused

side, the story of the prosecution that the accused after

killing the deceased, put the dead body in the lavatory and

poured kerosene and lit fire and thereafter, bolted the

lavatory from outside through that hole is not believable. On

the other hand the explanation offered by the accused in his

evidence is also probable.

45. It is a well recognized principle of criminal

jurisprudence that the accused need not establish a fact in

50

issue or any relevant fact, beyond all reasonable doubt as it

is incumbent on the prosecution to do the same. It suffice

that by means of preponderance of probabilities, if the

accused is able to create a reasonable doubt in the case of

the prosecution, the court has to give due weight for the said

probabilities. Further, added to that the court has to give

equal importance to the evidence of the prosecution

witnesses as well as the evidence of the defence. Therefore,

the story of the prosecution as noted above has to be

suspected, in view of the plausible explanation offered by the

accused and also as stated by the witnesses to the defence.

46. In order to prove that it is a murder, the previous

antecedents of the accused soon before the death also play an

important role. The evidence of DWs2 and 3 who are

independent neighboring witnesses cannot be in this case

easily discarded. Admittedly, A2 and A3 were not present at

the time of the incident, but they came later as per the

evidence of DW2 and DW3. When DW2 and DW3 came to the

spot, A1 was present and he was raising hue and cry and

51

pouring water into the lavatory. Perhaps with an intention to

extinguish fire. So it is crystal clear that A2 and A3 were not

present, and A1 made all his attempts which occurred to his

mind at that time, it cannot be said that the prosecution story

is fully believable. The evidence of DWs.2 & 3 in this regard

cannot be easily discarded.

47. The lavatory is situated outside of the house of the

accused in the backyard. The sketch Ex.P59 shows that it is

a very small lavatory and the photographs of the dead body

produced before the court clearly establishes that prior to

dragging out the dead body from the toilet, it was in a sitting

posture. The court cannot imagine certain things which are

not supported by any settled principles of medical

jurisprudence or by means of any imagination as to how the

incident had happened inside the lavatory. Merely because

the dead body was in a sitting posture, it cannot be inferred

that after killing the said lady, the dead body was taken to the

lavatory and thereby, made the dead body to sit in the sitting

posture. If that were to be the view, other view proposed by

52

the learned Counsel for the accused that when the lavatory

door was bolted from inside after bolting if the deceased

ablazed herself, after pouring kerosene, immediately after

sustaining severe burn injuries, she must have lost her

balance and due to which she gradually collapsed and in that

context also, the dead body might have found in a sitting

posture in the lavatory. Therefore with all certainty it cannot

be imagined, as to how exactly the dead body came into

sitting posture, she might have fallen on the wall, or on the

bucket or kerosene or even other portion of the lavatory,

therefore, the court is not in a position to exactly imagine as

to what happened inside the lavatory. Therefore, when two

views are possible on the same set of facts and circumstances

and the view which is favorable to the accused has been

preferred by trial Court, such view based on the factual

matrix of the case and also appreciating certain facts, it may

not be proper on the part of this court to deviate from the

observations made by the trial Court. The burn injuries

found on the head, mouth back and chest. Therefore, it

53

shows that if the kerosene is poured from the head portion it

will drop down from the head to the mouth, back, chest and

other parts of the body. The back portion is not so much

caught with fire. Therefore, it probabalises that because of

the congested place in the lavatory, the kerosene might not

have fallen on the back portion of the body of the deceased to

the fuller extent. Even the doctor was not taken to the spot

by the Investigating Officer, in order to ascertain whether the

dead body could be in a sitting posture if she has committed

suicide, and could have lost consciousness immediately and

gradually her body fell down to the sitting posture. It is also

quite natural as per the doctors evidence that immediately

after sustaining burn injuries, the injured due to lack of

oxygen and also smoke due to the kerosene burning, she

must have lost the consciousness within one or two minutes,

therefore, the body of the said lady immediately might have

lost the control and that may also be one of the reason as to

the dead body found in sitting posture. Looking to the above

said circumstances we do not want to propose substitute our

54

views to that of the views of the trial Judge in this regard

when such inference is also possible.

48. Now, coming to the other argument of the learned

Counsel for the appellant Sri Balakrishna that the accused in

his statement under section 313 Cr.P.C. according to him has

admitted certain things. The questions put to accused No 1,

PW9 Rekha Mohan, and P.W.11 Naganna that “Simpa

committed suicide by burning” but in their answer they

denied it as false. Therefore the learned counsel contends

that they indirectly admitted that simpa died a homicidal

death. But such an inference cannot be drawn by the Court

taking such answers as admission of the accused.

49. The accused also at page 26 has given an

explanation that immediately, after the incident, even before

the Police came to the spot, about 10 to 12 persons

assembled there, he was at a shock, Therefore, he

immediately did not make any effort to brake open the door of

the toilet. The learned Counsel contended that he never

55

made any attempts to save his wife. Therefore, when he was

present just prior to the incident with the deceased, he did

not make any effort to save the life of his wife; on the other

hand he wanted to create some evidence in his favour by

calling the police to the spot. Therefore the court has to draw

an adverse inference.

50. Drawing of adverse inference, in my opinion is in

very rarest of rare circumstances on the basis of the

admission of the accused so far as the criminal cases are

concerned. Such admissions, either with regard to a fact in

issue, or a relevant fact should be of such a nature, it should

not create even a semblance of suspicion with regard to the

conduct of the accused, and such circumstance should be

unerringly point to the guilt of the accuse. But here the said

statement of the accused about his presence and also he

made some effort to pour water to save his wife and not broke

open the door etc., cannot be taken as an un-equivocal

admission, so as to draw an adverse inference against him.

Therefore, in our opinion, the court has to visualize the entire

56

evidence placed before the court not only the statement of the

accused. If the other materials available on record

unequivocally point towards the guilt of the accused in such

an eventuality, admission by way of any conduct of the

accused with regard to such relevant facts can be made use of

as additional corroborative evidence. Therefore, such

argument of the learned Counsel cannot be easily accepted.

51. The records also disclose as we have already

referred to taking of the dead body from M.S. Ramaiah

Hospital to Bowring Hospital wherein one of the relatives of

the deceased was working by name Dr.Sarvamangala, the

insertion of the words “blood in the wound” by the doctor is to

some extent doubtfully established before the court. Further,

it discloses that one Swamiji of Koladmath related to the

deceased was very much present throughout at the time of

Post Mortem examination. Further, the lavatory door being

bolted from inside and no cogent materials are placed to show

that the door could be bolted from outside. The doubtful

circumstance with regard to the ante-mortem nature of

57

injuries on the dead body, the witnesses who saw the dead

body, have never spoken anything about the injuries on the

dead body including the Taluka Executive Magistrate coupled

with the conduct of A1, who according to the other witnesses

also poured water from outside in order to save his wife.

These are all the circumstances which create a serious doubt

with regard to the death of the deceased. When the case of

the prosecution surrounded with mysteries and also

suspicious circumstances, then the court cannot say that the

death of the deceased has been proved to be a murder beyond

all reasonable doubt. When the court is of such opinion that

the death was not a homicidal death, the other alternative

inference should be that the death must have been caused

due to suicide. Hence, giving such benefit of doubt, we

propose to answer this point that the prosecution has

established before the court that the death occurred by

means of burn injuries and the same amounts to a suicidal

death and not a homicidal death.

58

POINTS 2 AND 3.

52. In order to answer the second and third point for

consideration formulated by us, it is just and necessary to

bear in mind few facts projected by the prosecution in order

to establish the offences under Sections 3 and 4 of the

D.P.Act and also for the offences under Sections 304B, 306

and 498A of the IPC.

53. The prosecution has projected the facts that the

marriage between the 1st accused and daughter of PW16 by

name Simpa was taken place on 5.9.1999. Prior to the

marriage in the month of February 1999, there was

negotiation and at that time, the accused persons one

Mahesh, his wife Meena and all the family members of the

complainant viz; Channaveerappa were present. During that

time, the accused persons have demanded a sum of Rs.1,

00,000/- cash and gold chain, gold karadige, suit, silk

clothes, diamond ring and five sets of gold jewelries to the

bride Simpa. Thereafter Channaveerappa expressed his

59

incapacity and has agreed to pay an amount of Rs.25,000/-

cash, gold chain, bracelet, diamond ring, gold karadige,

watch, suit, silk clothes and three sets of gold ornaments to

Simpa along with six silk sarees and matrimonial engagement

was agreed to be fixed on 28.04.1999. At the time of

engagement, as agreed upon, an amount of Rs.25, 000/- was

given as dowry and other articles as noted above were also

given in consideration of the marriage and the marriage was

performed on 4th and 5th of September 1999. Therefore, it is

contended that the accused persons have committed the

offence under Section 3 of the D.P.Act

54. It is the further case of the prosecution that,

about two months later after the marriage, the accused

persons have started ill-treating and harassing the deceased

Simpa in demand of cash of Rs 10,000,00. In that context,

the father of the deceased – PW6 Channaveerappa made

arrangements for payment of Rs.5, 00,000/- (five lakh) and

the same was given to the accused persons. In spite of that,

persistence for demand of dowry did not stop, ill-treatment

60

and harassment to the deceased Simpa intensified for the

purpose of extracting the remaining amount of Rs.5,00,000/-.

55. Apart from the above, the prosecution also

projected that the parents of the deceased have spent lot of

money at the time of marriage and they actually sent the

couple for honeymoon by spending Rs.20,000/- and they

have also given lot of gold and silver articles and household

articles on demand by the accused persons on several

ceremonies and functions. In that connection also, the

accused persons have ill-treated and harassed deceased

Simpa. Their ill-treatment and harassment was to such an

extent that the deceased could not tolerate, and it drew the

deceased to commit suicide and such ill-treatment was

sufficient to commit suicide by the deceased. In this

background, the prosecution has relied upon the oral and

documentary evidence placed before the Court.

56. In the above said scenario, the learned High

Court Government Pleader and also the learned Counsel for

61

the appellant (Complainant’s Counsel) strenuously argued

that the Court has to re appreciate the entire materials on

record. It should not give much importance to minor

mistakes and contradictions in the evidence of the witnesses.

It is contended that though there are some contradictions and

omissions compared to the First Information Report, inquest

and earlier statement of the witnesses and subsequent

statements before the CCB police, however, acceptable and

believable evidence is available before the Court against the

accused. Therefore, whatever the evidence placed before the

Court has to be taken into consideration by the Court. He

further contended that much importance should not be given

to the contradictions and omissions, particularly in dowry

death cases. He also contends that the witnesses, though

they are close relatives, particularly in the dowry death case,

the evidence of the parents and the close relatives of the

deceased play a dominant role. Therefore, he contends that

the evidence placed before the Court are sufficient to draw an

inference that, due to the ill-treatment and harassment by the

62

accused in demand of dowry prior to and after the marriage,

it actually drew the said lady to commit suicide. In the event

this Court comes to a conclusion that it is not a murder and

it is a suicide by the deceased, then the Court can draw

inference on the basis of the evidence that the accused

persons are solely responsible for the death of the deceased

who died a suicidal death.

57. As we have already held while discussing point

No.1 that the prosecution has failed to prove beyond all

reasonable doubt that the accused persons have committed

the murder of the deceased and therefore, the offence does

not fall under Section 302 of the IPC. Therefore, in view of

the above said submissions, the Court has to see whether the

act or omission or any conduct of the accused persons in any

manner falls within the four corners of the above said

provisions of law.

58. In this background, some of the rulings cited by

the learned Counsel for the appellants, in our opinion, are

63

also important to be taken note of before adverting to the

evidence on record, which are as under:

(1) AIR 1975 SC 1252 between Podda Narayana & Others Vs.

State of Andhra Pradesh, wherein the Hon'ble Supreme

Court has observed that;

“There is no need to mention every minute detail

in the First Information Report mentioning the overt acts

of each and every accused. It is neither customary nor

necessary to go in detail to narrate the story of the

prosecution.

The object of Section 174 of Cr.P.C. is very limited.

It can only be used for the purpose of ascertaining

whether a person has died under suspicious

circumstances or an un-natural death and if so, what

the apparent cause of the death is. The question

regarding the details as to how the deceased was

assaulted or who assaulted him or under what

circumstances he was assaulted is foreign to the ambit

and scope of Section 174 Cr.P.C. The object of holding

any inquest as can be seen from Section 175 Cr.P.C is

only to ascertain whether a person died natural death,

or a homicidal death or due to un-natural death like

suicide.”

64

The learned Counsel submitted that, in this case also

much importance should not be given to the contents of the

FIR and also the statement made by PW13 and PW16 at the

time of inquest proceedings. Those statements shall be looked

into only for limited purpose as guided by the above decision.

(2) 1997 SCC (CRL.) 981 between Harpalsingh Vs. State of

Haryana & Others wherein the Hon'ble Supreme Court has

made an observation that -

“Merely because a material witness was not

examined by the prosecution, a criminal court is not lean

to draw the adverse inference that if he was examined,

he would have given a contrary version. The illustration

(g) in Section 114 of the Evidence Act is only a

permissible inference and not a necessary inference.

Unless there are other circumstances also to facilitate

the drawing of an adverse inference, it should not be a

mechanical process to draw the adverse inference

merely on the strength of non-examination of a

witnesses even if it is a material evidence”.

It was also held that –

“The supplementary statement of the first informant

recorded by the Investigating Officer could only have

been used to contradict the witnesses in view of the

65

interdict contained in Section 162 of Cr.P.C, the

statement cannot be used for comparing with the First

Information Report. The Investigating Officer elicit more

details from such persons, during any subsequent

interrogation, his evidence does not become suspect. It

is not advisable to throw the evidence of the informant

over phone, merely because the Investigating Officer

succeeded in eliciting further details or even fuller

details during subsequent interrogation.”

In this case, the learned Counsel drew our attention

that the subsequent statements of the witnesses before the

CCB Police giving the details and also the said statements are

fully supported by the evidence before the Court. Though

there are some contradictions and omissions in the evidence

of these witnesses, the overall case of the prosecution has to

be looked into and the Court has to see what the truth in the

evidence before the Court is. Therefore, the Court should not

give much importance to the minor contradictions in the

evidence of the witnesses.

(4) The learned Counsel also cited another ruling reported in

(2005) SCC (CRL.) 113 between Parsuram Pandey and others

66

Vs. State of Bihar – wherein the Hon'ble Supreme Court has

observed that -

“The contradictions inconsistencies, exaggeration

or embellishments in putting the story by the

prosecution about the starting of the incident cannot

wash away the entire incident proved by eye-

witnesses. If no prejudice shown to have caused to the

accused due to the irregular, imperfect recording of

statement u/s.313 of Cr.P.C., accused is not entitled to

the benefit for the defective recording of the statement.”

(5) The learned Counsel also cited another ruling

reported in (2006)1 SCC (CRL.) 134 in the case of

Devindersingh and others Vs. State of Punjab, wherein the

Apex Court observed that,-

“In the absence of the deceased, testimony of her

parents would be most relevant - Evidence regarding

continuous dowry demands and consequent cruelty and

harassment to the wife becomes more believable where

a young woman having a small child of 15 months and

another in her womb, ended her life.”

59. By citing the above said rulings, the learned

Counsel for the appellants has strenuously contended that

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the Court has to bear in mind the conduct of the accused

persons prior to the marriage and after the marriage and also

the evidence placed on record. On over all analysis of the

entire materials on record, if the Court is of the opinion that

the evidence of the close kith and kin of the deceased can be

believed, there is no reason to deny justice to the victim, the

Court has to magnanimously analyze and appreciate the

evidence of the close relatives of the deceased. Therefore, in

this case the entire case would base on the relatives’

evidence. But their evidence has to be very carefully scanned,

scrutinized and accepted by the Court. Hence he pleaded for

accepting the evidence of the witnesses and to convict the

accused for the above said offences.

60. Contrary to this, the learned Counsel for the

accused Sri. C. H. Hanumantharaya has strenuously

contended that, in this particular case, there are huge

contradictions and discrepancies in the evidence of the

prosecution witnesses regarding demand of dowry prior to

and after the marriage as alleged by the prosecution

68

witnesses. There is long delay in recording the statement of

the witnesses by the Investigating Officer, who took over the

investigation subsequently that is by the CCB police.

61. In this regard, the learned Counsel relied upon

the decision reported in AIR 1971 SC 804 in the case of

Balakrushna Swain vs. State of Orissa, wherein the Apex

Court held that,

“The unjustified and unexplained long delay and

recording the statement and material witnesses by the

Investigating Officer will render the evidence of such

witnesses unreliable.”

In support of the same contention, he relied upon another

ruling reported in 2005 Cri.L.J 1913 in the case of

Vishwanath and Anr. Vs. State of Madhya Pradesh, wherein it

was held that,

“Delay in recording the statement of crucial

witnesses in the absence of explanation of delay cannot

render the witnesses reliable.”

62. The learned Counsel also submitted before the

Court that the failure of the witnesses to give particulars of

69

dowry demand either in the complaint to the police or during

the course of subsequent investigation makes the evidence of

said witnesses unreliable. Where the evidence rendered by

the witnesses is totally bereft of the foundation, either in the

First Information Report or in the statement at the earliest

point of time that is at the time of inquest but totally

improved before the Court while giving evidence, such

evidence has to be very carefully scrutinized by the Court.

The learned Counsel further submits that there is no hard

and fast rule as to how the evidence of the witnesses has to

be analyzed by the Court. But the golden principles should

be born in mind by the Court, that with all care and caution

and over all analysis of the entire materials on record, it

should convince the conscience of the Court that such

evidence can be relied upon, particularly if the witnesses are

the relatives who are interested in the case of dowry death

cases, their evidence has to be very carefully candidly

scanned.

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63. In this background, the earlier statements at the

time of inquest, contents of the First Information Report and

their evidence before the Court play a very important rule.

Though they cannot be compared with each other,

nevertheless, the proven material omissions and

contradictions, if they go to the root of the allegations made

against the accused, the court should be very slow to accept

the same without any corroboration from other independent

source.

64. After hearing the arguments of the learned

Counsel, the Court has to see the materials placed before the

Court by the prosecution whether on the basis of the entire

materials on record, the prosecution is able to prove the

offences alleged against the accused. Before adverting to the

evidence adduced by the prosecution for the above said

offences, it is just and necessary for this Court to bear in

mind what proof is required in order to prove the above said

offences.

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65. Sections 3 and 4 of the Dowry Prohibition Act,

1961 reads as under:

“3. Penalty for giving or taking dowry.-

(1) If any person, after the commencement of this Act,

gives or takes or abets the giving or taking of dowry, he

shall be punishable with imprisonment for a term which

shall not be less than five years, and with the fine

which shall not be less than fifteen thousand rupees or

the amount of the value of such dowry, whichever is

more:

Provided that the Court may, for adequate and

special reasons to be recorded in the judgment, impose

a sentence of imprisonment for a term of less than five

years.

(2) Nothing in sub-section (1) shall apply to or, in

relation to,-

Presents which are given at the time of a

marriage to the bride (without nay demand having been

made in that behalf):

Provided that such presents are entered in list

maintained in accordance with rule made under this

Act;

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Presents which are given at the time of marriage

to the bridegroom (without any demand having been

made in that behalf):

Provided that such presents are entered in a list

maintained in accordance with rules made under this

Act;

Provided further that where such presents are

made by or on behalf of the bride or any person related

to the bride, such presents are of a customary nature

and the value thereof is not excessive having regard to

the financial status of the person by whom, or on whose

behalf, such presents are given.

4. Penalty for demanding dowry.- If any

person demands directly or indirectly, from the parents

or other relatives or guardian of a bride or bridegroom

as the case may be, any dowry, he shall be punishable

with imprisonment for a term which shall not be less

than six months but which may extend to two years

and with fine which may extend to ten thousand

rupees:

Provided that the Court may, for adequate and

special reasons to be mentioned in the judgment,

impose a sentence of imprisonment for a term of less

than six months.”

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66. In order to prove the above said provisions, the

prosecution has to prove beyond reasonable doubt that there

was a demand for dowry or any consideration towards the

marriage prior to the marriage. In order to prove the offences

under Section 4 of the D.P.Act, there must have been

persistent demand for dowry at the time or after the marriage

and either it must have been complied or there was

consistent and persistent demand by the accused persons.

67. In order to prove the dowry death, the prosecution

has to prove certain ingredients of Section 304B of the IPC,

which reads as under:

“304B. Dowry death-

(1) Where the death of a woman is caused by any

burns or bodily injury or occurs otherwise than under

normal circumstances within seven years of her

marriage and it is shown that soon before her death

she was subjected to cruelty or harassment by her

husband or any relative of her husband for, or in

connection with, any demand for dowry, such death

shall be called "dowry death", and such husband or

relative shall be deemed to have caused her death.

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Explanation- For the purpose of this sub-section,

"dowry" shall have the same meaning as in section 2 of

the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished

with imprisonment for a term which shall not be less

than seven years but which may extend to

imprisonment for life.”

68. In order to prove the offence in this particular

provision, the prosecution has to prove that the death of a

woman, particularly in this case Smt. Simpa was due to burn

or fatal injuries occurred otherwise than under normal

circumstances within seven years of her marriage. Insofar as

this aspect is concerned, there is no dispute that the death of

the deceased Simpa occurred due to burn and fatal injury

and it was occurred otherwise than in normal circumstances.

The marriage was taken place in the year 1999 and death was

occurred in the year 2002. Therefore, the death was occurred

within seven years of her marriage. These ingredients have

been in fact established before the Court, but the prosecution

has to prove that the death was not only occurred due to

75

otherwise than normal circumstances within seven years of

marriage, but the death was occurred due to subjecting the

deceased to cruelty or harassment by her husband or any

relative of her husband, in connection with any demand for

dowry, then only the said death can be called as dowry death

and for the purpose of this Section, dowry was in the same

manner as in Section(2) of the D.P. Act.

69. Therefore, the ingredient that the death was occurred

due to subjecting of the deceased to cruelty or harassment in

connection with demand for dowry is the essential ingredient,

which has to be established by the prosecution beyond

reasonable doubt. Even if the offence under Section 304B is

not established, the Court has to see whether the offence falls

under Section 306 of the IPC. Section 306 of the IPC reads as

follows:

“306. Abetment of suicide

If any person commits suicide, whoever abets the

commission of such suicide, shall be punished with

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imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.”

70. In order to attract this provision, the accused

persons must have abetted the suicide committed by the

deceased. In this case, we have already held that the

deceased has committed suicide within seven years of her

marriage and also the said death is an unnatural death.

Whether the death of the deceased was due to any illegal act

or omission or the conduct of the accused and they actually

facilitated the deceased to commit suicide. Though the

abetment is not defined under Section 306 of the IPC, the

Court has to fall back upon Section 107 of the IPC, which

defines what is meant by abetment, which reads as under:

“107. Abetment of a thing

A person abets the doing of a thing, who -

First- Instigates any person to do that thing; or

Secondly- Engages with one or more other person or

persons in any conspiracy for the doing of that thing, if

an act or illegal omission takes place in pursuance of

that conspiracy, and in order to the doing of that thing;

or

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Thirdly- Intentionally aids, by any act or illegal

omission, the doing of that thing.

Explanation 1- A person who by willful

misrepresentation, or by willful concealment of a

material fact which he is bound to disclose, voluntarily

causes or procures, or attempts to cause or procure, a

thing to be done, is said to instigate the doing of that

thing.”

71. Insofar as this case is concerned, the

prosecution has to establish that the accused persons abetted

the said suicide by the deceased by instigating the deceased

or intentionally aided by their act or illegal omissions driving

the lady to commit suicide. Therefore, the conduct of the

accused persons plays a very dominant role in order to attract

Section 306 of the IPC.

72. In order to prove the offence under Section 498A

of the IPC, the prosecution has to prove certain conduct of the

accused as noted in the said provision. Section 498A of the

IPC reads as under:

78

“498A. Husband or relative of husband of a

woman subjecting her to cruelty

Whoever, being the husband or the relative of the

husband of a woman, subjects such woman to cruelty

shall be punished with imprisonment for a term which

may extend to three years and shall also liable to fine.

Explanation- For the purpose of this section, "cruelty"

means-

(a) any willful 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.”

73. In order to prove this provision, the prosecution

must prove that the deceased Simpa was subjected to cruelty

or harassment and such cruelty or harassment was by the

husband or by the relatives of the husband and the cruelty

meted out by them was with a view to drive her to commit

suicide or to cause grave injury or danger to her life, limb or

79

health, whether mental or physical or such harassment was

with a view to coercing her or any person related to her to

meet any unlawful demand for property or valuable security

or on account of failure of such woman or any person related

to her to meet such unlawful demand.

74. On perusal of the above said provisions so far as it

relates to this case, the whole case of the prosecution is

concentrated on the fact that, the accused persons have ill-

treated and harassed the deceased in cruel manner with an

intention of coercing her and her father to meet their unlawful

demand by way of demanding valuable properties and also

cash of Rs.1, 00,000/- prior to the marriage and Rs.10,

00,000/- after the marriage. On account of failure on the

part of the deceased Simpa and her father to meet such

demand, the cruelty was intensified by the accused persons

which reached to the climax and resulted in the death of the

deceased.

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75. As could be seen from the entire materials on

record, there is no other reason explained either by the

witnesses or by the prosecution that, for any other reason the

accused persons have harassed or treated the deceased

Simpa in cruel manner. Therefore, the trial Court has also

relied upon the evidence in order to ascertain whether the ill-

treatment and harassment was made in order to extract more

dowry or money or other valuable things at the instance of

the deceased and her father.

76. The prosecution in order to prove the above said

provisions relied upon the evidence of PWs. 5 to 9 and 12 to

16. PWs. 13 and 16 are the parents of the deceased. PWs. 12

and 15 are respectively the sister and brother of the deceased.

PW5 is the senior paternal uncle of the deceased. PWs 6 and

7 are the neighbors of PW16 and PW8 is the sister of PW16.

Therefore, it goes without saying that all these witnesses are

closely inter-related to each other.

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77. Before adverting to the evidence of these

witnesses, it is just and necessary for this Court to go

through the contents of the First Information Report and also

the earliest statement made by the parents PWs. 13 and 16 at

the time of inquest.

78. Ex.P42 is the UDR F.I.R. registered on the basis

of the statement of the husband of the deceased, (accused No

1) wherein he has categorically stated that, on 30.05.2002 at

about 7.30 am, when himself and his wife Simpa were

standing in the front yard of their house along with their

child, the deceased Simpa handed over the child to DW1 –

accused and went to attend the nature call. She did not

return soon. Therefore, the husband went to the back yard

lavatory and saw that some smoke and flames were coming

from the lavatory, immediately he made attempts to pour

water to save the deceased and simultaneously he informed

the police. After police came there, they came to know that

the deceased Simpa committed suicide by pouring kerosene

and litting fire on herself. This is the earliest statement made

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by DW1, which is also later translated into evidence in the

deposition of DW1 (accused No 1).

79. Subsequently, after receiving the information of

the death of the deceased Simpa PWs. 13 and 16 came to the

spot and in fact at the time of inquest, (Ex.P.2)they have given

their statement before the Taluka Executive Magistrate –

PW20 Mr. N. R. Sudhakar, wherein PW16 has stated that he

performed the marriage his daughter Simpa in accordance

with customs and as ‘Varopachara’ he has given a bracelet,

golden karadige, golden chain, a ring and Rs.25,000/- cash to

the bridegroom and also golden jewelries worth Rs.5,00,000/-

to his daughter. It is also stated that, after the marriage the

accused persons were mentally and physically ill-treating and

harassing the deceased. Further on 29.05.2002, he came to

know about the death of his daughter and he came to

Ramaiah hospital and saw the dead body and thereafter he

gave the statement and also the complaint. On the same

facts and allegations he lodged the First Information Report.

83

80. In this background, the police have registered the

case and investigated the matter. At the earliest point of

time, the investigation was done by the jurisdictional police

and later the same has been transferred to CCB police and

they have investigated the matter. Now in this background,

the Court has to examine the evidence on record.

81. The evidence of PWs. 13 and 16 disclose that, at

the time of inquest or at the time of the First Information,

they have only stated that, as ‘Varopachara’ they have given

certain articles and cash of Rs.25,000/- to the bridegroom

and also given clothes and ornaments worth Rs.5,00,000/- to

the bride. Nowhere in these two documents is it specifically

stated that those articles were persistently demanded by the

accused persons. But subsequently, during the course of

investigation also, they have not stated before the

Investigating Officer about the said demand prior to the

marriage. But after lapse of one month from the date of

registration of the case, the CCB Police have taken over the

case and witnesses given their further statement before the

84

Police. But the contradictions elicited from the mouth of

these two witnesses and the same has been proved by the

evidence of the Investigating Officer show that they have not

even stated so before the Investigating Officer. As we have re-

looked to the statement of these two witnesses, at the time of

inquest and also at the time of the First Information Report

they have never stated regarding any of the accused

demanding dowry of a sum of Rs.1, 00,000/- as alleged.

Even on the next date of the incident, Investigating Officer

has recorded the statement of these two witnesses, but

admittedly they have only re-iterated the facts as stated by

them during the inquest proceedings. The statement of PW12

in fact was not at all recorded by the Investigating Officer, but

she has stated before the CCB police subsequently after the

lapse of one month for the first time. As could be seen from

the evidence of PWs. 13, 15 and 16 in their evidence itself,

they have admitted that they have not stated all those things

at the time of inquest, First Information Report or at the

earlier point of time when the Investigating Officer has

85

recorded the statement with regard to demand of dowry of

Rs.25,000/-. But they have reiterated that all those things

were given by way of ‘Varopachara’.

82. It is worth to note here the evidence of the

Investigating Officer who is examined before the Court as

PW23 – Mr. S. P. Nayak, who has stated that, from December

1999 to 15.07.2007, he was working as ACP of CCB Police.

On 28.06.2002, he recorded the statement of Smt. Ratna and

Channabasappa (PW 13, and 16). In the course of cross-

examination at pages 22 to 29, the material contradictions

have been elicited. He has admitted that witnesses have not

stated those things as stated by them in the examination-in-

chief with regard to the demand of Rs.25, 000/- gold articles

as dowry or as consideration for the marriage. For the first

time after the lapse of one month after the incident, the said

witness deposed before the CCB Police, but even before the

CCB Police as admitted by the Investigating Officer, they have

not vividly and more meticulously stated that those articles

were given by way of dowry.

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83. Though the evidence of those witnesses cannot be

out-rightly rejected, nevertheless, has to be very carefully

scrutinized. When other material witnesses, according to the

prosecution, were also present at the time of this marriage

talks i.e., to say one Mr. Mahesh and his wife Meena, those

witnesses were not examined before the Court for the reasons

best known to the prosecution. Hence the evidence of these

two witnesses has to be rejected with a pinch of salt.

84. PWs. 5 to 7 have also deposed before the Court

that they were present at the time of marriage talks and

accused have demanded dowry and other articles in

consideration of marriage and subsequently PW16 gave such

cash and ornaments at the time of marriage. It is worth to

note here that these witnesses were not cordial with PW16 at

the time of engagement programme or at the time marriage

and naming ceremony of the child of the deceased. They are

no other than the brother and neighbor of PW16. The

documents produced before the Court by the accused which

were confronted and marked at Exbts. D8 to D26 show that

87

presence of these witnesses was conspicuously not there and

none of the family of PW5 is found in the said photographs.

PW16 has not admitted that his sisters are given in marriage

and they are residing at Bangalore and PW5 never visited the

house of the deceased till the death of the deceased. Though

such suggestions have been denied, nevertheless, there are

some materials to show that PW5 was not cordial with PW16

as per the evidence of defense witnesses. Therefore, perhaps

that may be reason they were not found in the photographs at

the time of engagement function. The searching and detailed

cross-examination has been adverted to these witnesses in

order to prove that, during marriage talks, these articles were

not at all given by way of dowry and also as consideration of

the marriage. The evidence of PWs. 13 and 16 – parents of

the deceased show that, at the time of marriage talks, the

accused persons have demanded Rs.1,00,000/- and gold

ornaments. Accordingly, PW16 has agreed to pay a sum of

Rs.25, 000/- during engagement and they were given at the

time of marriage. But the accused persons have contended

88

that, at no point of time, they demanded dowry. This has

been reiterated in the evidence of DW1 and it is also admitted

by the accused persons that those articles and a cash of

Rs.25,000/- were actually given by PW16 as agreed at the

time of engagement and given them at the time of marriage.

But those things were voluntarily given as per the customs

prevailed in their community and not on any demand by the

accused persons.

85. Therefore, the evidence let in by the accused

persons, particularly DW1 and other witnesses clearly

establishes that there is no overall denial by the accused

persons with regard to these articles and cash amount, but

they have stated that an amount of Rs.25,000/- was given to

accused No.1 for clothes, but not as dowry.

86. Ex.D59 is the portion of the statement of PW16

marked and proved before the Court through the

Investigating Officer. It reveals that, he has earlier stated

that, at the time of marriage, a diamond ring and ornaments

89

worth Rs.5, 00,000/- were given to the bridegroom as

‘Varopachara’. PW15 – Nagaraj who is no other than the son

of PW16 (son of the deceased) in his statement at Ex.P33 has

also repeated the same factual aspects that those articles

were given as ‘Varopachara’. It is also fortified by the

evidence of PW9 – Smt. Rekha at Ex.D27 that these articles

were not given as ‘Varopachara’ and accused persons never

did not demand nor they ill-treated the deceased in demand

of dowry.

87. The other witnesses PWs. 12 and 15 who are the

sister and brother of the deceased, have reiterated in their

evidence in support of the evidence of PW13 and 16. The

evidence of these interested witnesses is almost similar in all

respects. Therefore, there is absolutely no need to discuss

their evidence in detail word by word and witness by witness.

With regard to demand of dowry, PW13 has categorically

admitted that PWs. 12 and 15 were not there are at the time

of marriage talks. Therefore it is clear that, PWs. 12 and 15

tried to exaggerate the things and they also stated about the

90

demand and receipt of the amount and jewelries in

consideration of the marriage. When at the earliest point of

time in the First Information Report, inquest and also at the

time of subsequent statement before the Investigating Officer,

there is absolutely no whisper from any of the witnesses that

those articles were demanded and received by the accused

persons, but while investigation was handed over to the CCB

Police, at the time of recording their further statement, the

prosecution has stated that the accused demanded

Rs.1,00,000/- and they have agreed to pay Rs.25,000/- and

also the ornaments, which clearly amounts to improvement

step by step by the prosecution witnesses. Therefore, the trial

Court has declined to accept the statement of those

witnesses.

88. It is worthwhile to note here that the CCB police

have recorded further statements of most of the witnesses

after a month. When such serious and incriminating

evidence was available with these witnesses, they never stated

anything at the time of First Information Report or at the time

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of inquest or at the time when their first statement was

recorded by the earlier Investigating Officer. At least why they

have waited for one month to state such important facts

before the CCB Police is nowhere explained. We are at loss

to understand that, at the time of the inquest and the First

Information Report, the parents and relatives might be in grief

due to the death of their daughter and under such

circumstances, they might not have given a detailed,

meticulous and vivid statement. But they have to explain,

though they have an opportunity, whenever their subsequent

statement was recorded, why they have not stated all those

things before the earlier Investigating Officer. Even otherwise,

if the Investigating Officer has not recorded their statement

properly, why they have waited for one month till the CCB

Police recorded their statement. What transpired during

these one month is not stated by any of the witnesses and

why they have kept mum for all these days without disclosing

the same to any of the Police Officers? Therefore, though all

the witnesses have stated in their examination-in-chief

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regarding demand of dowry and ill-treatment and cause of

death in detail, but they have not stated so even before the

CCB Police. In the course of cross-examination of PWs. 22

and 23 who are the Investigating Officers, all these

contradictions have been meticulously proved. Therefore, it

goes to show that lot of improvements have been made by

these witnesses after long lapse of one month. Even during

the course of evidence, they have improved a lot by deposing

what they have not stated even before the Investigating

Officers PWs. 22 and 23. Therefore, as rightly contended by

the learned Counsel for the accused, their evidence has to be

rejected. Therefore, when there evidence is not natural and

trust worthy for acceptance and their improved version stage

by stage create a serious doubt with regard to their conduct.

Hence their evidence deserves no credibility.

89. In this context, the evidence of the defense also

plays an important role. We have already referred to the

evidence of DW1 who has accepted the receipt of an amount

of Rs.25, 000/- and the other ornaments. DW4 has also

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stated that PW16 has agreed to give Rs.20,000/- to accused

No.1. But subsequently he agreed to pay Rs.20, 000/-.

Accordingly, PW2 has given only Rs.20, 000/- to purchase

clothes. At the time of marriage talks, one Mahesh and his

wife Smt. Meena were also present. In fact PW16 has also

accepted this particular factum. The records disclose that in

the charge sheet also this Mahesh was cited as CW26 and

Smt. Meena was cited as CW27. But they were not examined

by the prosecution for the reasons best known to them. It is

never stated by PW16 in his evidence that these two

witnesses are not cordial with each other and they were not at

all present at the time of marriage talks. But he never stated

why those witnesses are left out from examination. These

witnesses particularly Mahesh was examined before the Court

as DW4. He has categorically stated that, he and his wife

Smt. Meena were present at the time of marriage negotiations.

Photographs produced before the Court also establishes their

presence and the non-examination of these Mahesh and

Meena was held to be fatal by the trial Court. We also found

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that the prosecution at least should have explained why these

witnesses were left out unnecessary and why only close

relatives were examined insofar as this aspect is concerned.

DW4 has categorically stated that there was absolutely no

demand of any cash or any jewelry by the accused persons

and all those things were agreed to be given as ‘Varopachara’.

Therefore, the prosecution has not established with regard to

demand of Rs.25, 000/- and other jewelries as stated by PWs.

13 and 16 by way of dowry or as consideration of the

marriage. Therefore, when material witnesses have not been

examined, an adverse inference has to be drawn by the Court.

Accordingly, we also do not accept the evidence of these

witnesses insofar as this aspect is concerned. Certain

discrepancies have also been seen in the evidence of these

witnesses. Some of the witnesses have stated that dowry was

given to accused No.2, but some witnesses have stated that

the dowry amount was given to accused No.1 etc. There is no

consistency in the evidence of the witnesses. The evidence of

the witnesses regarding demanding of dowry by accused Nos.

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1 to 3 and PW16 giving the same, in our opinion, is also not

reliable and credit worthy. The omissions and contradictions,

which we have observed, proved through PWs. 22 and 23 are

not mere omissions. They amount to contradictions go to the

root of the prosecution case. Of course, mere delay as noted

in the above said Supreme Court decisions in examining the

witnesses is not sufficient to discard, but the nature of

evidence given, conduct of the witnesses and the time gap in

giving such opportunity to the witnesses, and immediately

not disclosing the truth before the competent authorities,

have also to be counted before accepting or discarding the

evidence of those witnesses. Therefore, the decisions cited by

the Counsel for the accused that the unexplained delay,

particularly long delay in cases like this, in recording the

statement of the witnesses and not giving any proper

explanation why they have kept quiet for so many days and

why their statement is not recorded by the earlier

Investigating Officer, why they have not stated all the details

96

at least at the time of their second statement, makes their

evidence unworthy for acceptance.

90. Now coming to the subsequent demand of dowry

of Rs.10,00,000/- as demanded by accused No.1, we have

once again re-evaluated the evidence of important witnesses

i.e., PWs. 13, 16, 14 and 15, who have spoken to insofar as

this demand is concerned. According to these witnesses,

immediately after two months of the marriage, the accused

have started ill-treating the deceased by demanding

additional dowry. PW14 has stated that the accused

demanded Rs.2,00,000/- immediately after two months of the

marriage. However, PW15 has deposed before the Court

that, in the month of January 2002, the accused demanded

Rs.10,00,000/-. PW13, who is no other than the mother of

the deceased has stated that the accused demanded

Rs.10,00,000/- at the time of naming ceremony of her

grandson.

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91. The trial Court has declined to accept the

evidence on the ground that PW16 in his evidence has stated

that prior to the marriage, the accused have demanded

Rs.1,00,000/-, out of which he has only paid Rs.25,000/-. It

is not that he was capable of giving the said amount, but he

did not pay the same. But according to him, he was unable

to meet such demand by the accused. when at the time of

marriage or prior to the marriage or after the marriage, he

was unable to meet the demand of the accused even

Rs.1,00,000/-, can it be said knowing fully well the capacity

of PWs. 16 and 13, the accused persons could have

demanded Rs.10,00,000/-, particularly when the accused no

1 is a software engineer and earning hand sum salary.

Therefore, the trial Court held the said circumstances as

improbable. We also fortify the said observation as a possible

observation on the basis of the facts of the trial Court. No

where the prosecution witnesses have stated that the accused

demanded the said amount of Rs.10,00,000/- as dowry. The

important witnesses including father and mother of the

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deceased PWs. 13 and 16 have stated that the accused

demanded the said amount for the purpose of starting a

factory. The amount, even if it is demanded, cannot be called

as a dowry. But nevertheless, as argued by the learned

Counsel for the appellant any amount in consideration of the

marriage, if it is demanded prior to or subsequent to the

marriage amounts to dowry.

92. It is the case of the prosecution that PW16 has

stated in his evidence that, out of Rs.10,00,000/- he made

arrangements for payment of Rs.5,00,000/-. He in fact has

given a detailed and vivid description as to how he secured

this amount. He arranged such a huge amount by selling the

coffee crops, borrowing a sum of Rs.50, 000/- from PW14 and

a sum of Rs.1.5 lakhs from Vijaya Bank. PW14 in fact is an

advocate, who has stated that he gave Rs.50,000/- to PW16.

It is pertinent to note here these incriminating materials are

only stated at the time of their statement being recorded by

CCB Police as already narrated, after a lapse of one month

from the date of the incident. PW14 being a lawyer, he has

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not produced any material to show that an amount of

Rs.50,000/- was given as hand loan to PW16. This also

creates a serious doubt as to why no documentation has been

made. Even PW14 being an advocate knows the consequence

of making such hand loan without there being any record to

that effect. This type of evidence can be created at any time

therefore it is difficult to believe such evidence also.

93. PW16 has also produced certain document i.e.,

Ex.P36 - the certificate issued by Vijaya Bank for having

borrowed a sum of Rs.1,50,000/- on 13.05.2002. The

evidence of PW16 reveals that he has taken a crop loan to

meet the expenses of the maintenance of coffee crop. But

except Ex.P36, no other document has been produced before

the Court. Ex.P36 also does not disclose all the details of the

crop loan accorded by the said bank. This Ex.P36 was issued

on 05.08.2002. According to PW16, he has taken loan on

13.05.2001. The demand by the accused persons as per the

evidence of PW16 was in the month of January 2002. After

the death of the deceased, this document was secured on

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05.08.2002. It also creates a serious doubt whether this

amount of Rs.1,50,000/- was utilized for the purpose of

maintaining the crops or to meet the demand of accused

persons. If at all this amount was taken as a crop loan for

the purpose of meeting the expenses of maintaining the crop,

and if that amount was not utilized for maintaining the crop,

how the crops were managed is not explained by PW16. It

also creates a doubt whether after the death of the deceased,

though this person has taken the crop loan and utilized for

the said purpose, but that has been used for the purpose of

laying a false claim against the accused. In the absence of

examining any witness in this regard, as to whether this crop

loan was properly utilized for maintaining the crop or the

same was utilized for any other purpose, the Court cannot

come to a definite conclusion that this amount was utilized

for meeting the demand of the accused. It is quite

understandable that when once the bank grants any crop

loan to PW.16, there would be a regular monitoring by the

bank authorities to ensure that the said amount was utilized

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for the purpose it was granted to him. Therefore, it creates a

serious doubt whether such payment as crop loan is not

properly utilized and the same was used for meeting the

demands of the accused.

94. Another document produced as Ex.P37 that PW16

has received Rs.3, 00,000/- from Prime Associates and

Ex.P38 is an endorsement issued by the Prime Associates. It

is stated that PW16 has paid an amount of Rs.5,00,000/-.

According to him, deceased Simpa had been to Somawarpeth,

the native place of PW16 on 24.05.2002 and after mobilizing

the amount of Rs.5,00,000/- he requested PW6 –

Chandrasekhar to go along with the deceased to the house of

PW12 – Champa and wait for accused No.1 to come to the

house of PW12 and hand over the said cash of Rs.5,00,000/-

to accused No.1. According to the prosecution story, PW6

took Rs.5,00,000/- and handed over to accused No.1 in the

presence of PW12. PW12 has also stated about the same. If

really PW16 has sufficient source of income, why he has to

borrow the money from PW14 and also from the bank.

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Moreover, the said amount of Rs.5,00,000/- is not a small

amount and it is not that the accused No.1 has demanded the

same by way of dowry. It is stated that the said amount was

for the purpose of establishing the factory. Therefore, PW16

ought to have given this money either by way of cheque or by

way of DD. Why he has given the same by way of cash is also

not established before the Court. The accused have insisted

or demanded for payment of said money by way of cash is

also not established before the Court. The author of the said

document is also not examined before the court. It is not that

the accused have insisted or demanded for payment of said

money by way of cash. This also creates reasonable doubt

with regard to arranging the money as stated by P.W. 16.

95. The testimony of PW6 coming to the house of

PW12 and handing over the amount to accused No.1 is also

not believable, because of the simple reason that, even this

meticulous description as given in the statement of this

witness, has not been stated before the investigation officers.

As we have already discussed the evidence of PWs. 22 and 23

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which disclose that, whatever they have stated about this

payment of Rs.5,00,000/- subsequently by mobilizing the

said amount and payment of the said amount to the accused

are all conspicuously not there in their earlier statement and

it is proved to be an improvement before the Court. All the

witnesses invariably in their oral statement before the

Investigating Officers have not at all disclosed these

important facts, but they have deposed for the first time

before the Court, perhaps, may be the reason subsequent to

their statement before the CCB police, they have created a

story meticulously regarding the payment of Rs.5,00,000/- to

the accused. Therefore, such evidence has also rightly not

been accepted by the trial Court.

96. Once again, at the cost of repetition, we refer the

evidence of PW23, who in his evidence during the course of

cross-examination, at pages 7 to 30, the improvement and

contradictions are elicited. The contradictions in the evidence

of PW5 - Guruswamy, PW6 – S. C. Chandrasekhar, PW7 – H.

B. Krishnappa, PW8 – Suma, PW9 – Rekha Mohan, PW14 – A.

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S. Mahesh, PW16 – Channaveerappa have been elicited, that

what the above witnesses have stated before the Court with

regard to subsequent demand of dowry in particular manner

sending PWs. 6 to the house of PW12 all these facts have not

been stated in their earlier statements. When such being the

case, how evidence before the Court alone can be accepted.

Therefore interestedness of the witnesses is apparent on the

face of their evidence which creates a serious doubt with

regard to their conduct.

97. Therefore, after meticulously analyzing the

evidence on record, the trial Court has observed that, when

there is a long cleavage between the statement of these

witnesses earlier made to the police and the evidence before

the Court, the said evidence cannot be used for the purpose

of drawing any inference against the accused persons.

98. Looking to the above said materials on record,

even after re-evaluation of the evidence of these witnesses, we

are also of the opinion that the witnesses are not only related

105

to each other, but also closely to the deceased. They have

made lot of improvements from time to time. Of course, once

again we reiterate that there is no hard and fast rule to

disbelieve the evidence of related witnesses. They should not

be without any reason dubbed as interested witnesses. The

interestedness of the witnesses has to be qualified and

quantified on the basis of the materials on record. If the

evidence by the witnesses are natural and it is forthcoming

without any embellishment and they have no intention to

falsely implicate the accused persons into the crime, then

only the evidence of such witnesses can be believed. That is

how the Apex Court has opined that their evidence has to be

very meticulously scanned and scrutinized in order to

ascertain the truth or falsity in their evidence. Neither the

truth nor falsity can be ascertained from the evidence of those

witnesses. When such situation occurs, it is difficult to hold

that the prosecution has proved the case against the accused

beyond reasonable doubt with regard to the said demand of

dowry, either prior to the marriage or after the marriage, and

106

that there was any ill-treatment or harassment to the

deceased in demand of the said dowry or any articles in

consideration of marriage. It cannot also be said that, by

means of their conduct, the accused persons have demanded

any dowry or any valuable consideration after the marriage

and due to which the deceased has committed suicide and

that the ill-treatment was to such an extent that it was

sufficient to drive a woman to commit suicide.

99. Now coming to the other circumstances pleaded

by the prosecution witnesses, though they have not been

meticulously stated in their statement earlier, it is the case of

PW16 that after the marriage they send the bride and

bridegroom to honeymoon and in fact PW16 has spent

Rs.20,000/-. But the same has been denied by the other

side. Contrary to that, DW1 in his statement has stated that

even after the marriage, even without the knowledge of PW16,

he has booked for honeymoon and they went to several

places. In this regard, he has produced Ex.D72 that he has

actually spent money for their honeymoon. On the other

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hand, PW16 has not produced any document to show that he

has spent an amount of Rs.20,000/-. It is further stated by

PW13, the mother of the deceased that, after two months of

the marriage, there was some demand by the accused

persons and the ill-treatment started. But no where in the

evidence of these witnesses any of the witnesses have stated

what was the nature of ill-treatment meted out by the

accused persons on the deceased. Only by using of the word

that the accused persons have ill-treated and harassed is not

sufficient to draw an inference that in a particular manner,

the accused persons were ill-treating and harassing the

deceased. Further added to that, except stating the demand

of dowry and other articles and persistent demand for the

said amount, no witnesses have stated whether there was any

physical or mental ill-treatment to the deceased otherwise

than such demand.

100. In this background, the Court has to see the

evidence of these witnesses with regard to other factors.

PW13 has stated that, after two months of the marriage, the

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accused No.1 and deceased came to their house. At that

time, PW13 had given Deepale kamba, arathi battalu,

kumkum battalu, silver idols on demand by accused No.1. It

is stated that the accused have also demanded a cot, kitchen

set and almirah and in fact these were also given to them.

Therefore, they say that PW16 gave cash of Rs.30,000/- in

order to purchase all these things. It is further stated that, at

the time of Seemantha to the deceased for her first issue, the

accused Nos. 1 to 3 have insisted for arranging Seemantha at

Bangalore and in fact PW16 at his cost performed the

Seemantha and gave several gold ornaments to Simpa and

gave gold karadige and clothes to accused No.1. It is further

stated that at the time of naming ceremony of their grandson,

they gave gold bracelet, ring, chain, silver plate, and bowl

with spoons to the child and sari to their daughter. The

prosecution has also produced Exs.P21 to P30 - receipts to

show that PW16 has purchased gold ornaments at different

places and naming ceremony and Seemantha were also

conducted by PW16.

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101. Looking to the above said circumstances, in our

opinion, the evidence of PWs. 13 and 16 in this regard

becomes totally unnatural, because of the simple reason,

whatever they have given to their daughter and even to the

son-in-law and grandson , which are customary in nature

and with lot of love and affection at the relevant point of time

even conducting of Seemantha in the house of accused No.1

and naming ceremony of their grand son and giving some

articles by way of gift or by way of love and affection have

been converted into dowry and also ornaments given on

demand by way of consideration of marriage subsequent to

the death of the deceased. There is no semblance of material

to show that, at the time giving statement before the police

they have stated that these articles were given by way of

dowry or in consideration of marriage. It appears to us after

the death of the deceased even small matters have been

converted in to allegations against the accused by PWs. 13

and 16 and all the relatives. Perhaps, in order to see that the

accused are sent behind the bars, they have even

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meticulously nurtured few of the tiny things which happen in

almost all the families as incriminating materials against

accused person. It goes without saying that in almost all the

families giving of the clothes, gold articles conducting of

Seemantha ceremony are all customary in nature. Even it is

very usual, in middle class and poor parents also conduct

such customary functions to their capacity. In our opinion it

is unwarranted on the part of PWs. 13 and 16 to create such

a story that they have conducted all those customary

performance or ceremonies only on demand by the accused

persons. Therefore, when the circumstances show that those

ceremonies and performances are improbably having been

done by PWs. 13 and 16, only on the insistence and demand

by the accused, probably they must have done with all love

and affection as per the customs. Looking to the conduct of

these witnesses it is apparent that they are highly interested

witnesses who can exploit small tiny matters to lay a false

case against the accused persons. Even otherwise there is lot

of inconsistencies regarding alleged ill-treatment and

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harassment by the accused in order to secure all those

things. Hence the trial Court is also properly appreciated

these materials on record. We do not want to differ from the

said findings.

102. According to the prosecution, the accused having

ill-treated the deceased by not allowing her to use the

telephone and made all attempts to separate the child from

the deceased and deceased joined job for some time in order

to avoid the ill-treatment by the accused persons. Nowhere in

the evidence of PWs. 13 and 16, have they stated that during

the period of converture PW16 has convened any Panchayath

requesting any of the elders of both the families, in order to

advise the accused persons not to ill-treat or harass the

deceased. This is the natural conduct which is expected of a

father and even at no point of time, it is stated that they have

received any phone calls from the deceased and any letters

from the deceased, making allegations of ill-treatment or

harassment against the accused persons. It is quite relevant

to note here that the prosecution has not made any efforts

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even during the course of investigation or at the time of

evidence before the Court to examine any one of the

neighboring witnesses of the accused persons to establish the

conduct of the accused persons in this regard. They are

natural and proper witnesses to establish or to corroborate

the evidence of the related witnesses. Therefore, in our

opinion, the non-examination of material witnesses Mahesh

and his wife Meena and non-examination of DW6 with regard

to the death of the deceased, though those witnesses were

available to the prosecution and no explanation is offered for

not examining those witnesses, who were in fact examined by

the accused on his side, creates a serious unexplained doubt

regarding the truth of the prosecution case. Such benefit also

enure to the benefit of the accused.

103. Therefore, looking from any angle, in our

opinion, the prosecution has not established with regard to

the demand of dowry and ill-treatment or harassment to the

deceased in demand of dowry by the accused persons.

According to the prosecution, it is an admitted fact by PW16

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that at the time of Seemantha programme, naming ceremony

and marriage of the deceased and also the marriage talks

prior to the marriage, the photographs and video were taken.

And even subsequent to the marriage lot of programmes was

conducted in the house of PW16 and for all those

programmes, the accused and deceased have participated.

Even it is there in the evidence those ten days prior to the

death of the deceased, birthday of accused No.1 was

celebrated in the house of PW16. Photos produced by DW1

reveals that PW5 - brother of the deceased, PW16 and his

family members were not at all participated in any of these

functions. That shows that subsequently, PW16 might have

persuaded PW5 his brother to give evidence in support of

their cases. It also creates a serious doubt with regard to the

natural conduct of PW16 and the events naturally taken place

must have been converted as incriminating materials against

the accused.

104. The evidence of material witnesses PWs. 12, 13

to 16 as we have already referred, is quite contrary to each

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other. Admittedly, marriage of accused Nos. 4 and 5 was

performed much earlier to the marriage of the deceased.

Accused Nos. 4 and 5 are none other than the sister and her

husband, of accused No.1 who have been staying separately

much earlier to the marriage of accused No.1. In only one

sentence it is stated in the evidence of PWs.13 and 16 that

accused Nos. 4 and 5 have insisted the deceased to bring

money and nowhere in the evidence it is elicited on what

dates and at what time these accused Nos. 4 and 5 were

present in the house of accused No.1 and ill-treated and

harassed the deceased. This clearly goes to show that,

because of their relationship with accused No.1, they were

unnecessarily dragged to the Court and false allegations have

been made against them. Only one sentence by way of

allegation that they also insisted the deceased to bring

money, such mere allegation bereft of any proof is not reliable

and creditworthy. It clearly goes to show the false allegations

with accused No. 4 and 5. All the witnesses deposed for the

first time before the Court with regard to the ill-treatment and

115

harassment. But as we have referred to the evidence of the

witnesses, nowhere in their earlier statement they have stated

anything about the ill-treatment or harassment by accused

Nos. 4 and 5.

105. In this background, it is also worth to note here

some evidence of DW1 and DW7. It is stated by PW13 that in

the year 2001, her husband was admitted to Wockhardt

hospital due to heart problem. Accused No.1 requested PW13

to go to his place and at that time itself, the deceased

telephoned to PWs. 13 stating that her Mangalya Chain was

torn by accused No.1 and she requested accused not to give

torture to her. In fact PW16 also went to the house of

accused and advised him. But according to PW16, taking

advantage of the situation that PW16 was suffering from

heart problem, they demanded remaining amount of

Rs.5,00,000/- on the ground that, when PW16 can spend

money for his heart treatment, why he cannot give another

Rs.5,00,000/- to accused No.1. PW13 further stated that,

during February 2002, accused Nos. 2 and 3 called her to

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come to their house and at that time, they have demanded

such an amount. Contrary to this, DW1 has led the evidence.

He has deposed that, he was not so inhumane to demand

such an amount from PW16. Even admitting the version of

PW16 in such a manner, it is stated by DW1 that after

discharge from the hospital, PW16 was advised to take rest.

Hence DW1 made arrangements in his company guesthouse

from 07.11.2001 till 18.12.2001. DW7 – Mr. Prasannakumar,

an accountant of the company in which A-1 was working, has

deposed before the Court that accused No.1 has actually

booked a room for PW16 and PW16 stayed in the said

guesthouse and DW1 has paid such an amount as per

Ex.P104 and DW7 has identified his signature at Ex.P104B

and accused No.1 put his signature at Ex.P104A. DW7 is

an independent witness. Why he has to tell falsehood before

the Court is not explained. On the other hand, it is the

natural conduct of DW1, who shows that he actually helped

PW16 in making accommodation in the guesthouse belonging

to the company of accused No.1. Therefore, it clearly goes to

117

show that the conduct of DW1 cannot be easily ignored and

that he inhumanly demanded any money at that time. In this

context, DW5 – father-in-law of PW12, close relative of PW16.

has also stated that PW16 was admitted to Wockhardt

hospital and at that time, he paid Rs.1,40,000/- to PW16 for

medical expenses and after discharge, PW16 stayed in

Koramangal Guest House for 25-30 days. Though he has not

produced any material to show the payment of Rs.1,40,000/-,

nevertheless, the staying of PW16 in the guest house is

fortified. Though PW16 has denied having been used the

guest house, but according to him, he stayed in the

Koladmath in Bangalore but none has been examined from

said Koladmath. Though the witnesses of both sides have not

properly established this fact, it goes to show that the cordial

relationship between the accused and PWs.16 and 13 were

there even prior to the death of the deceased. But abruptly

after the death of the deceased, each and every small

circumstances, which were not at all sufficient to lodge any

118

complaint against accused, appears to have been made use of

by PW16.

106. The learned Counsel for the accused also

brought to our notice that, on several occasions, the accused

left India to different places. The sequence of events from

05.09.1999 to 30.05.2002 for a period of 2 years 8 months,

on several occasions and most of the time, the accused has

left the country on his official duties as he is a Software

Engineer and he used to get lots of money by doing work in

the foreign countries. In this regard, Exs.P83 and P84 are the

visa and passport produced before the Court, which fortifies

the said claims of DW1. It is also an admitted fact by the

prosecution witnesses that, often the deceased Simpa used to

visit parental house. According to the evidence of DW1, as

and when he used to go to the foreign country, it was an

agreement between the parties that he has to leave his wife

Simpa in her parent’s house and whenever he comes back

from foreign country, he has to take her to back to

matrimonial home at Bangalore. The evidence of defence

119

witness should also be given the same credit as that of the

prosecution witnesses. If really torture started after two

months of marriage, the accused ought not to have been left

his wife to stay in her parents’ house on so many occasions

107. Looking to the above said evidence, though DW1

has taken a different stand that he used to give money to the

mother-in-law (mother of the deceased) and she was doing

chit business out of the said money and she was also using

the said money for gaining interest by giving loans to different

persons, but no such materials are produced to accept the

evidence of DW1.

108. On over all looking to the above said facts and

circumstances of the case and over all the analysis of the

entire materials on record, it cannot be said that the

prosecution has established the case beyond reasonable

doubt. The evidence before the Court with regard to small

things and small ceremonies performed by the PW16

including naming ceremony and Seemantha, giving gifts to

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the daughter and grandson were all taken into consideration

as consideration of marriage that shows the conduct of

PWs.13 and 16 that they are not trustworthy for acceptance.

Even those circumstances cannot be used by any ordinary

prudent man against the accused persons, but they want to

use those circumstances also in order to create certain

evidence against the persons. Therefore, in this background,

their statement earlier made to the police at the time of

inquest and while giving the First Information Report to the

police plays a very dominant role in order to ascertain the

contradictions, omissions in the evidence placed before the

Court by these witnesses.

109. Therefore, we are of the opinion that, looking to

the facts and circumstances even on re-assessment of the

evidence, it cannot be said that the prosecution has proved

the case against the accused beyond reasonable doubt.

Therefore, this Court cannot come to any other conclusion

than the one reached by the trial Court. As we have already

said that, even this Court is of the opinion that some

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materials are sufficient to draw any different inference, but

the Court should be reluctant to draw such inference when

appreciation of the evidence by the trial Court is fully based

on the materials on record and such opinion of the judge with

regard to the reliability and credit worthiness of the witnesses

is also possible.

110. For the above said reasons, we are of the opinion

that none of the offences under Sections 304B, 306 or 498A

of the IPC or under Sections 3 and 4 of the D.P.Act have been

established by the prosecution beyond reasonable doubt.

111. Therefore, the appeals fail and accordingly, both

the appeals are dismissed.

SD/-

JUDGE

SD/- JUDGE

PL