N THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED: THIS THE 31st DAY OF MARCH, 2011 BEFORE THE HON’BLE MR. JUSTICE V. JAGANNATHAN CRIMINAL APPEAL NO.844/2007 BETWEEN: 1. Shahaji Tukaram Patil S/o. Tukaram Gani Patil Aged: 24 years R/o. Saundalga Tq. Chikodi 2. Tukaram Gani Patil S/o. Ganu Subbarao Patil Aged: 62 years R/o. Saundalga Tq. Chikodi 3. Sushila Tukaram Patil Aged: 55 years R/o. Saundalga Tq. Chikodi APPELLANTS (By Sri. Ashok R. Kalvanashettv. Adv.) AND: The State of Karnataka By Nippani Police RESPONDENT (By Sri. Anand K. Navalgimath, HCGP) CRLA FILED U/S. 374 CR.P.C AGAINST THE JUDGMENT DT.13O22OO7 IN S.CNO.166/2OO6 ON THE FILE OF THE PRESIDING OFFICER FT.CII, AND ADDL. S.J, BELGAUM - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES P/U/S. 498A AND 304B R/W 34 OF IPC AND SEC. 3 AND 4 OF THE D.P. ACT AND ETC. THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This criminal appeal is by the accused Nos. 1 to 3 before the trial Court who were convicted by the learned Sessions Judge in respect of the offences punishable under Section 498A, 304B R/w. Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act (hereinafter referred to as ‘the D.P. Act’ for short> and being sentenced to undergo 5.1, for two years and to pay a fine of Rs.1,000/- each in respect of the offence under Section 498A and to undergo R.I. for 10 years in respect of conviction under Section 304B of the IPC and six months S.I in respect of Section 4 of the D.P. Act and to undergo one year S.I. in respect of Section 3 of the D.P. Act and default sentences for non-payment of fine amount were also imposed. 2. The prosecution case in short is that, the deceased Suganda was given in marriage to accused No, and the marriage was performed on 17.04.2003. After the marriage, the deceased entered in-law’s house i.e., accused Nos. 2 and 3 and the accused persons namely, the husband and in-laws begun to harass the deceased one year after the marriage and the harassment was in the form of not providing sufficient food and clothes, getting more work and demanding Rs.25,000/- from the father of the deceased. When the deceased had come to the house of her parents for Deepavali in the year 2004, she has complained to her father about the harassment and advice given by the father had no effect on the accused. It is the further 4 case of the prosecution that, with the advice of the elders, accused No.1 was paid Rs.15,000/- in the presence of panchas and even after the said payment, harassment continued. The accused No.1 also said to have assaulted his wife and then he pushed her to the wall and on account of that, the deceased sustained head injuries and fell down and thereafterwards, the accused caused death by throttling her neck and smothering her at about 11.30 pm on 23.03.2006. The dead body was removed from the room and was thrown into the well. 3. The further case of the prosecution is that, accused went to the house of Pandurang Patil and Baburao Patil and confessed before them of having been murdered Suganda and thereafterwards, search was undertaken to find out the whereabouts of the deceased. However, it was revealed that dead body of the Suganda was found in the well and it was taken out and was noticed to be that of the deceased. PW1, who is the complainant and father of the deceased gave his complaint as per Ex.P1. The police took up investigation recorded evidence of material witnesses, collected post-mortem report as per Ex.P36 and the doctor who conducted the post-mortem was PW21. On completion of investigation, which also included conducting various panchanamas, collecting photographs and house extract, marriage invitation card, drawing of various panchanamas in respect of seizer of M.Os. 1 to 11, the charge sheet was submitted against the husband and in-laws of the deceased. 4. The learned trial Judge framed the charge in respect of the offences punishable under Section 498A, 304B, 302, 201 of IPC read with Section 34 of IPC and Sections 3. 4 and 6 of the D.P. Act. The accused pleaded not guilty to the charge. 6 5. On behalf of the prosecution, 31 witnesses were examined and 50 documents were marked apart from M.Os. mentioned earlier, Accused statement was recorded and the accused has denied the prosecution case in toto. The accused led evidence in their defence by examining DWs. 1 to 4 and out of them, DW4 is none other than accused No. 1. husband of the deceased. The defence also got marked three documents at Exs.D1 to D3, out of which Ex.D3 is Laboratory report given by the doctor DW2 to the effect that accused No. 1 was suffering from azoospermia i.e., the semen does not contain sperms. The learned trial Judge after evidence appreciation found that the prosecution was not able to establish beyond all reasonable doubt the offence of murder and accordingly, acquitted the accused in respect of the offences punishable under Section 302 and 201 of the IPC as the evidence was not very definite as to the deceased having been done to death by the accused alone. However, the trial Court concluded that the death of Suganda was not also suicide, but nevertheless it took the view that deceased died under circumstances otherwise than natural. 6. After recording the aforesaid finding as to the cause of death and having acquitted the accused in respect of the offence of murder, it is thus clear that, the prosecution case that the accused had assaulted and throttled her and thereafterwards murdered her and then took the dead body and put it into the well stand not proved. Since the State has not preferred any appeal against the acquittal of the accused in respect of the offences punishable under Section 302 and 201 of the IPC, the said finding of the trial Court, therefore, has attained finality. 7. Apart from the aforesaid acquittal of the accused in respect of the murder, the learned trial Judge also acquitted the accused in respect of Section 6 of the D.P. Act. However, the learned trial Judge found I’ 8 that the evidence on record was sufficient enough to hold that the accused had committed the offences punishable under Section 304B and 498A of the IPC and Sections 3 and 4 of the D.P. Act and accordingly sentenced the accused as mentioned earlier. 8. The learned Counsel Sri. Ashok R. Kalyanashetty for the appellants while assailing the judgment of the trial Court, at the outset submitted that, though the accused also led evidence by examining DWs. 1 to 4, out of whom DW4 was none other than the husband of the deceased i.e., accused No.1, the trial Court had not considered the evidence of this defence witness while arriving at its conclusion. It is his submission that, when the evidence is placed by the prosecution in respect of its case and the defence in respect of the defence case, it is incumbent on the part of the trial Court to consider the evidence of both sides and should have examined the said evidence from over 9 all perspective. But unfortunately, the judgment of the trial Court, on close scrutiny indicates that the learned trial Judge did not consider the defence evidence at all, except for the limited purpose of ascertaining the cause of death of the deceased. Therefore, when the defence evidence was placed, and defence witnesses have clearly stated that the deceased lived happily in her husband’s house and the accused had also cleared the bank loan obtained by them towards the purchase of motorcycle and the said loan having been cleared much prior to the incident itself, the question of accused demanding Rs.25,000/- from the deceased and her father does not arise. The judgment of the trial Court is therefore, not sustainable in law for having been ignored the defence evidence all together. It is his submission that the evidence of the defence witnesses also requires to be considered at par with the evidence of the prosecution witnesses and this was not done in the instant case by I0 the trial Court and hence the judgment of conviction is liable to be set aside. 9. Apart from the aforesaid submission, it is argued by the learned Counsel for the appellant that both PWs 1 and 2, who are the father and brother of the deceased have not whispered in their evidence that the accused demanded Rs.25,000/- as dowry. Except stating that the accused asked the deceased to bring Rs.25,000/- from her parental house, there is no evidence to show that the said amount was taken up by the accused as dowry in connection with marriage. In this connection, evidence of PWs 1, 2 and another witness for the prosecution was fatal. 10. It is then submitted that a careful appreciation of defence evidence will go to show that DW2 - Dr. S. M. Sabnis has deposed in his evidence that accused No. 1 cannot become father, because he was suffering from Azoospermia, on account of which 4_i 11 due to lack of sperms in the semen, there is defect in the accused No.1. As such, the deceased cannot give birth to a child. This evidence of doctor coupled with the Laboratory report Ex.D3 clearly goes to show that the deceased was frustrated on account of not being able to give birth to a child and this was the reason for deceased to have committed suicide, if at all, the death is taken as suicide. 11. It is then argued that it is come in the evidence of prosecution witnesses, particularly PW13 that on that fatal day, the deceased had gone to attend second nature call and therefore, there are chances that deceased might have fallen into the well and her head must have come into contact with walls of the well. Even in the inquest report, it is stated that the deceased went to attend nature’s call and then she was found fallen into the well. 4— 1-, IL 12. The learned Counsel also argued that the evidence of PW18, the Bank Manager would go to show that the accused had cleared the bank loan towards the motorcycle and in view of the evidence of the said witnesses and the document, namely Ex.P31, the account extract and other documents produced by the prosecution itself, namely Ex.P34 would go to show that the accused had cleared the loan on 09.01.2006 itself. As such, the prosecution theory that the accused demanded Rs.25,000/- from the deceased in order to help the accused to clear the bank loan also cannot be accepted. Even otherwise, it is argued by him that seeking financial assistance cannot be called as an unlawful demand. 13. Referring to the evidence of DW1 and DW3, it is contended that these two witnesses are the village leaders and they had deposed in their evidence that the deceased was living happily in her husband’s house and 1’ the accused are also financially very sound and that accused had got two acres of agricuftural land, where they grow sugar cane and supply the same to facto and in addition, the accused No.1, the husband is working in M.I.D.C at GokulShiragaon which place is 20 kms from the place of the accused, i.e., Soundalga. Therefore, evidence of DW1 coupled with that of DW3, who is also another person of the village, deposing to the same effect apart from DW4, the trial Court had totally brushed aside the entire defence evidence. When the evidence on record is in two sets, one set of evidence in favour of the accused and another set of evidence in favour of the prosecution, the Court ought to have given the benefit of doubt to the accused under such circumstances. 14. Therefore, the learned Counsel after submitting thus, also referred to the D.P. Act and invited my attention to Section 2, which defines the 14 Dowry’ and Section 3 and 4 of the said Act to contend that the question of accused demanding dowry and harassing the deceased in that regard does not arise. On the same footing even the offences under Section 498A also cannot be said to have been made out because it is come in the evidence of the prosecution witnesses that the deceased went to her parental house only once for Deepavali. Therefore, the judgment of conviction and sentence passed is liable to be set aside. Accordingly, he submitted that accused No, 1 is still in custody for more than five years and accused Nos. 2 and 3 are on bail and have also undergone custodial period for almost three years. 15. The submission of learned High Court Government Pleader on the other hand is that, the prosecution has established that the death of Suganda took place within seven years of her marriage and secondly, the death has occurred under circumstances sJ, 15 otherwise than natural and as such, Section 304B gets attracted with the aid of Section 1 13B of the Evidence Act regarding presumption. As far as Section 498A is concerned, it is argued that PWs 1, 2, 3, 6 and 8 have deposed that the accused demanded Rs.25,000/- from the deceased and therefore, conviction of the accused in respect of the offences under Section 498A, 304B, Sections 3 and 4 of the D.P. Act does not require interference. 16. In the light of the aforesaid submissions put forward and after carefully going through the entire evidence on record and the reasons assigned by the trial Court, the point for consideration is whether the conviction and sentence passed by the trial Court can be held to be sustainable in law. 17. Before going through the evidence aspect of the matter, it has to be mentioned at the outset that the trial Court has acquitted the accused in respect of the .1 16 offences punishable under Section 302, 201 read with Section 34 of IPC and Section 6 of the D.P. Act. The acquittal of the accused for the aforesaid offences has attained finality in view of the State not preferring any appeal challenging the said acquittal. 18. Once the prosecution fails to prove that the accused had throttled the neck of the deceased, smothered her and thereafterwards, dead body was put into the well, and the said case of the prosecution has been held to be not established beyond all reasonable doubt, the only offences, which will have to be considered are Sections 304B and 498A of the IPC apart from Section 3 and 4 of the D.P. Act. 19. To attract Section 304B of the IPC, the prosecution will have to establish that the death occurred on account of the deceased being subjected soon before her death to cn.iekv and harassment by her husband or his relative in connection with any demand ‘a 17 for dowry. Therefore, we will have to see whether there was any demand by the accused for dowry. 20. PW1 is the father and the complainant. In the course of his evidence, he has not stated that the accused demanded Rs.25,000/- as dowry. All that is deposed by PW1 is that, he was told by his daughter that her husband and in-laws were beating her and not giving her sufficient food and demanding Rs.25,000/- and telling her to do the work without giving food. In the entire evidence of PW1, there is no mention initially that Rs.25,000/- was demanded as dowry. 21. PW2 who is the brother of the deceased also deposed in similar fashion and there is no whisper by him that accused demanded Rs.25,000/- as dowry. PW5 also does not say in his evidence that the accused demanded Rs.25,000/- as dowry. PW6 does not say that the accused had demanded Rs.25,000/- from the ix deceased, but on the other hand his evidence is that the accused had told that they had purchased the vehicle and had incurred the loan of Rs.25.000/- and they are in need of Rs.25,OOO/ and at that time, the father of the Suganda gave Rs.15,000/-. PWs 7, 8, 9 and 13 are not supported the prosecution case. 22. Thus, the material witnesses for the prosecution did not say in their evidence that the demand of Rs.25,000/- made by the accused was dowry demand, Absolutely, there is no evidence led by the prosecution to show that the accused demanded dowr of Rs.25,000/-. 23. As against the above evidence placed by the prosecution, the accused also have led evidence by examining DWs 1 to 4. DW1 Arun B. Patil, who is one of the Directors of Prathamika krisha Pattina Bank and the member of Taluka Panchavat has deposed in his evidence that the accused had got agricultural land and 19 they grow sugarcane and supply the sugarcane to factory and accused are financially sound. This witness has stated that deceased Suganda lived happily in her husband’s house. The cross-examination of this witness has not brought out anything to disbelieve his version. 24. DW3 - Annaso Rama Patil is the Chairman of Prathamika Krisha Pattina Society and also says that he is one of the Directors and has got lands. He has deposed that accused have also got agricultural land and has grown sugarcane crops in their land and accused No.1 was working in M,I,D.C and accused were financiall, wound. Accused No. 1 had married deceased Suganda and after the marriage, the couple lived happily. This witness has also deposed in his evidence that father and other relatives of the deceased Suganda told him to settle the matter by payment of Rs.50,000/- 20 by the accused and accused refused to give the amount by stating that they have not committed any crime. 25. DW4 is an important witness for the defence and he is none other than the accused No. 1 himself, i.e., husband of Suganda. In the course of his evidence, DW4 has deposed to the effect that prior to his marriage with Suganda, he was working in M.I.D.C at Gokul Shiragoan which is 23 kms away from his village Soundalga and was earning Rs.4,5OO/- per month. He used to go on motorcycle from his village and the motorcycle has been purchased by availing loan and the loan was being paid by his father with the help of his income from the salary and income from agricultural sources and in the land they grow sugarcane and tobacco and financially they were sound. 26. He has further deposed in his evidence that only once his wife went to her parental house i.e., for Deepavali and out of their wedlock they could not get 21 any child and therefore, they had approached Dr.Sabina of Kolhapur who after examination told him that there is no chance of procreation and this made deceased fully frustrated and she told that there is no charm in living without child. Despite the accused trying to pacify her, the deceased did not recover from her frustration. It is also in the evidence of this witness that, on 24.03.2006 at about 6.00 pm his wife left the house to answer the second nature’s call and she had not turned up and they waited for half an hour and thereafterwards, they started searching for her and finally at 9.30 am on the following day, the dead body of Suganda was found floating in the well. This witness has further deposed that the parents of the deceased asked the accused to give Rs.50,000/-, to which the accused did not agree. 27. The above evidence of DW4 has not been tested in the cross-examination and the witness has come out successfully despite being cross-examined at great length. 28. Apart from the evidence of these three witnesses, DW2 — Dr. Satyavrut Mohan Sabnis has deposed about the examination of the accused No. 1 i.e., DW4 and in his examination the doctor has opined that seminal fluid of accused No. 1 was Azoospermia, that means his semen does not contain any sperms and this indicates that there is no chance of procreation. His report is marked as Ex.D3 and signature as Ex.D3(a). In the cross-examination of this witness also nothing is brought out to disbelieve his version. 29. Thus, if we consider the entire evidence on record, there is two sets of evidence, one on the side of prosecution. wherein the evidence sa s that accused demanded Rs.25.000/- from the deceased, but nowhere the prosecution witnesses say that it was a demand made in connection dowry. At the same time, there is also defence witnesses DWs 1 to 4 which I referred hereinabove and the defence version clearly shows that the deceased was happy in her husband’s house and the accused made no demand of dowr and the accused are well placed and being sound financially and further, the bank loan was cleared much earlier which is established by the evidence of DW18. 30. Thus, the evidence on the side of the defence gives altogether a different picture than what is sought to be projected by the prosecution through the prosecution witnesses. 31. The learned trial Judge in the course of his evidence analysis has focused only on the evidence led by the prosecution. but while considering the cause of death of the deceased, the learned trial Judge had referred to the evidence of DW2, the doctor. But the entire discussion in the judgment from para 21 onwards deals mainly with the cause of the death of the 24 deceased, however, in respect of the demand and harassment aspects are concerned, the learned trial Judge has totally ignored the defence evidence This is a serious defect in the reasoning of the trial Court, In other words, the admissible evidence has been totally ignored. The findings given in respect of the offences alleged under Sections 304B and 498A of the IPC and Section 3 and 4 of the D.P. Act are totally contrary to the defence evidence. 32. The trial Court seems to have given importance only to the evidence of the prosecution witnesses, but has ignored the evidence of the defence witnesses and in particular, the evidence of DW4, who is none other than the husband of the deceased. Section 315 of the Cr.P.C clearly provides that, even accused person is an competent witness for the defence. The Section goes on to show that any person accused of an offence before a Criminal Court shall be a competent witness for the 25 defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. The learned trial Judge has lost sight of this important provision of the Cr.P.C. 33. On careful reading of Section 2 of the D.P. Act, which deals with definition of ‘Dowry’ it goes to indicate that to attract Section 2 and thereafter Sections 3 and 4 of the D.P. Act, the prosecution will have to show that it was agreed between the parties to give valuable security at or before or any time after the marriage in connection with the marriage of the parties. In the instant case, the evidence is not there to show that there was agreement between two side to give or agreed to give any valuable property at or before or any time after the marriage in connection with the marriage of deceased with accused No. I. I have already referred to the evidence of prosecution witnesses, who have not even 26 whispered about the word dowry anywhere in their evidence. 34. In the case of such material on record, the trial Court was not justified in convicting the accused even in respect of Section 304B of the IPC or Section 3 and 4 of the D.P. Act. What remains is Section 498A of the IPC. As far as the offence under Section 498A is concerned, the