1 IN TEE HIGH CcU RT OF KARNATAKA CIRCUIT BENCH, GULBARGA DATED THE DAY OF JULY 2009 B E F OR E: THE HON’HLE MRJUSTICE: V.JAGANNATHAN EEN: Revanasiddanpa. Q A !lT tfti ocflhijcttijia r1Ltabl, Aced 27 years, 0cc.: .Ai.cuiture, F/o ingaiJ•eshwar, Now at Dindauar, ThJu, k: H Bagewadi, DOt: Bijapur iAeeused No, I before the trial eourL) Appellant (By Sri Saniav A. PaUl, Advocate) A A U The State of Karnatska, by B. Bagewadi Poller. Respondent l3v Sri Subhash Mallapur, HGGP. Criminal Appeal flied under section 3•74(2) of Cr, P. C praying to set aside convietiou and sentence daLed 16,6.2003 passed be Prineipat Sessions Judge, Bijapnr in Sessions Case No. 134/1999 and acquit the appellant in the interest ofjustice. This appeal enauce OH for hearing this Jar, the court delivered foflowlng: JUDGMENT rnf.:.:. appeal 15 braceused N:: 0 nefore the trial Court and he calls in question his conviction and sentence paN%cEn hi respect of the oflerrees puuishabio under Soctious• 498-A, 204-B of IPC and nuder Stctions 3. 4 arid 6 of the Down Prohihitloa Act (for short Itie Acfl. Out. o.f the four accused who faced the trial, :ca1rlni Sessions Judge acquitted accused HOSZ to 4 and t,hus ace/used %o I is before thi.s Court. -K 4 S 4 the date on which the parents of the deceased Shankaremma will have to come for the Seemantha Ceremony. It is the further case of the pmsecution that when Mailappa went to call his daughter (deceased Shankaremma) to bring her to his house for delivery, as the Seemantha ceremony was not performed, the accused sent the deceased to her parental house. A child was born and thereafterwards as per the custom Mallappa sent his daughter and the child to the house of the accused. It was then accused No.1 told Maliappa that the deceased would going to a new house at Chimmalagi village and Mallappa came to know that the appellant herein being the husband had taken a second wife Kashibai (44) and though the appellant denied the second marriage, with the intervention of the teachers from the school where the appellant was working as a teacher, the matter was settled and the appellant executed a bond agreeing to give half of the salaiy to the deceased. Thereafterwards, when Maflappa went to the 1 1 1 S Ebz’l ii miteI iai•iie nuder Si.tc u..oi.is 41183., 3(18, ziu1 6 o.f inC ann midor Sectiens f t and 6 of rho Pitt a.gainst the :t:ij.tpei.i.ant herein being tb.e h.ndband, fAther-hi-law (Aid) lii til(tl.’-II1IIW (A-S ann the. second. wife (.3-4). itt Jedee of the trial Coast framed the e.llG.lte in respect ci. tuft miove .fliefltlOrlOti 0.11 fl.ce5 and J —— — — — i’I k)*.tJuJLu.’ ci i1c* tç. t.I.uc othtnce nnni.tr Section 30413 of the 1PC. All the 0511.1 !Juseri •$eatthtd not ullt’ and t u.e prosecution thcreafterwatrls lead the evidence. The accused statement was recorded and on. behalf C the. accused Din 1. was exanit ued.. t5 tljDJ) ttSO.tnt3 tnt. ctviettoe on record, itt .tOtiITiut.((t tiuti.]. tt..ct:itr:i 0:1 tOe tn2[ :nwt \V(is satrdien -a -a -a m as t CZ: LciA.) icd Di Iii. UtictO utsO 1 i a Id 05 aoj dttigh ihei went acquttted. Hoeever, the trial Conrt Pound thet the c.ase i.ias been established bevonc.l ai.l rcasona.1.ile doubt ri agai.nst the appellant herein, is concerned in respect of the ofihl.ices punishable. under 3cctons 498A and 30413 of 1143 and Sec.tions 3, 4 and 6 of the Act and the appeiln.nt was couviccd him for •thc said oflences and was sentenced to und..ergo P. L fOr two years arid to pay fine of Ps, 1,000/ , Di default of payment of fine, to undergo S. L fOr three months ihr the offence puni.shable 1j9(i:er section. 4tifuA of bite, to undergo P. L fOr ten ears fOr the ofilinec under sectIon 30413 of 1PC and to pay fine of 13w 2 ,000J , in default of payment of fine SI for six months, fu.rther, to u.ndergo Si for 18 months for the offence i,mnder scctio.n 3 of Dowry Proh.ibiuon Act and to i..av fine of .5. ‘2,000/ , in default. of payment of fine, further to ‘u.ndergo 5.1. fOr t1’.’irce months, and to undergo S. .1. fOr six months• and. fine o’f Ps. 2,000/ , in defat,fit of miavmnen.t. o”f fine to undergo 5,1’, for one month for the ofle;nce under section 4 of Dowry Prohibition Act and further sentenced t”o’ ‘imdcrgo 5,1. for ‘six months and S & fine of Rs. 2.000/- in default of payment of fine, SI for four months for the offence punishable under section 6 of Down Prohibition Act. 6. Aggrieved by the conviction and sentence passed against him, Accused No.1 the husband has come tip before this Court in this appeal. 7. 1 have heard the learned counsel for the appellant and the learned Government Pleader for the State and 1 have perused the material placed in the form of paper book as well as the records of this case. 8. Learned counsel for the appellant Sri Sanjay A. Path contended at the outset that no offence under section 304-B of the 12.0. can be made out even on the basis of the entire evidence on record, because, crucial ingredient. or sectioii 304-B viz., cruelty or harassment soon before death in connection with any demand for dowxy, having not been established in the 9 instant case., the question of the orience under section 30441 of the L P. C. js being proved by the prosecutIon does not arise. In this regain the learned eounsei took t.his court through. the evidence of material witnesses PWs, 1, 2, 3 and.. PW41 and ai.so to the evidence of the I. U. who recorded the Si: ate.mcnt of P\kJ I Maliappa. All these v:iitnesses according to Uie 1cmned cone sd hnve not sponen about inc demand of clown hr the accused and moreover, PW I who is ti ic father of the deceased hhnseif has not stated in his evi.dence about the atteilant. herein having demanded dowry at the tini,.e of nialTiage. Pefendng to the conduct of the appdllant in setting up a separate house for his wife arid this fact having been ack towledged by P\L I and other wfttncssc:s, it is argued that there was no harassment by tb.fl acertseo soon heibre death of the aeceasco lbr or in connection with demand of dowry. Thereibre, the trial court was error in not properly appreciating the 11: çirj flCC Ott It’ nr4. sis n g.uds tiic oflk-nc’r puru%hatilc kit su. ,n 1-H ftl I P( Isconce ‘ci. ) So Li as the offenres under the Doun P:ol:l,itirni ct air con -med the Icarncd counsel aip t tl lSflO dneeir iatidmui of ‘tw.’i either before the rnariiage or at the thne of a 1 sibs lift , tcmaniaj nd Icet)r, til( trial court was ako hi error in holding otherwise and on Hi the ippellin ot le A) ix p sba it nnL see hits .3,1 and 6 S thu Dmsi Piohibition Art. 4 I - n st, urn ma 1 e sm ic inateth’ aganst -2 and A-3, tx in lais for c’cey jig doiin Imount, 1 it : ‘t agaiiist A- 1 l t ndrr these rrculw%tances, conv tinn C rffic jir U 0 Pr t ilso ciainc,l ix: sits:aincd ir thc fare of tha cvidcncr o: i’c Aft tixor tir f ‘ih (on off—in e ;f c rueIt is ‘onccried, 1 anwd coimsel argued tint lix fret ci ‘. as ike ni. of c1’ bs ‘ic u,ebant €nl c v .i fa tha thc apixi!ant tad .t 12 ven. fact that the apnelhnt took second wife itself is sufficient to bring the case within the ambit of section 498th of EleCt As far as the. expression “ soon oefore deaf! 4 appearing in section 30143 of IPC is eori:eenied, the learned Govt. Pleader for the Sinte placed reliance o.n two decisions of th.e A.pex Court reported in 2006 VoL 10 8CC 1.15 arid 2(D06 Vol. 12 5CC 667 to contend that the expression “soon before death” will have to he read havi.ng regard to the facts and circumstances of each case and ti jerefore, in the instant eas.e the evdenee placed ha the prosecution brings tie ease within section 304-8 of the IPC. As fOr as death of SnniLktneninla is concerned, learned Govt. Pleader argnni that. the fa t. that she died under circumstances otherwise than nonnal and that the appellant herein Wa” restdi.ng with her in 1 it.. house goes to show that it. the appellant who was responsible tbr the death of hls wife $hankarennna and the appellant has not come out with any explanation a..s. regards his absence frein - 4. 1.3 t1c hons.:e and bcfhre alien the apediant artd .hi wile. were alone lr.i the hot.ni:e and when the aptiellant (1005 not: cor..ie: forward witi3 any expialiation as regards the circnrnstmices .i winch his wife died, these lad ors therefore go agait ist the appellant. In tflj5; regard. lean ted Govt. Plean er placed relianee on at intl ‘CT rnhng of the Aires Conrt. reverted in 2007 Vol. 10 3CC 4.33 11. 1 iavrtig regard to toe above contentions Lit lbrwarded the noint for ccnsiderat.ion is; whether t.tie conviction of: the appellant by the trial conrt eonld be snst-,ameci, arid if so, in respect cf which of the offences? 12. It is th.c iz’roseentlon case that the accnsed dentanded down’ in the form of 3 tolas of gold and Ps, 10,000/ - at. the thnc of Secmanth ceremony of the deceased. hi the complaint lodged hr P\V- I. as per PaP. i there is no mention tha.t prior to the marriage .4. t a 15 further evidence of PW- I that he gave 4 acres of land in the name of his daughter Sharikaremma also goes to show that no land was given to the accused. As far as the demnnd made by the accused during the Seemanth ceremony is concerned, PW- I though has stated in his evidence that A-I demanded Rs.1O,000/- and 5 tolas of gold and that PW-1 paid Ra 10,000/- to A-i and A-2 in the presence of Malkappa and Mudukappa (PW-5) and that after 8 or 10 days 1W-i went to the house of the accused and gave 5 wins of gold to accused NO.1 to 3, yet this evidence of PW-1 is not supported by PW-5 Mudukappa and Maikappa was not examined. 1W-S Mudukappa though has deposed in his evidence that 1W-i gave Rs. 10,000/- to A-iRevanasiddappa, in the evidence of PW- 11 Charmabasappa who was the Dy.S.P. it has been brought out that PW-5 has made no such statement before the police officer about Rs. 10,000/ - being paid by Mallappa to A-i. But on the other hand. the 1.0. has stated that PW-5 has stated before him ‘C ‘4 16 about Rs. 10,000/- being paid to A-3. The said 1.0. also has deposed in his evidence that PW-5 has not stated about A-i demanding Rs. 10,000/- and 5 tolas of gold. 15. PW- 1 in the course of his cross-examination has also admitted that when he aed A-i to send Shankaremma to her parents’ house, A-i told lW-i that even if the money is not paid, he would send the daughter of 1W-i during the Jafl thne In other words, if A-i was persistent with the demand for dowiy of Rs. 25,000/- being paid to him he would not have agreed to send his wife to her parents’ house during the Jatra time. 16. PW-2 Sangappa in the course of his evidence has not stated anything about A-I demanding Rs. 10,000/- and 5 tolas of gold. But, he only speaks to the effect of A- i being a teacher having married second wife and having agreed to execute a bond as per Ex.P.4 1< r ci c S r j 0 OS — IN L who is• also a Primary School Teacher does not a — I S of gold or afloat m.,xl b.:ong ccve.n o A- I. This winless also speaks tv lii 3Vfi the A- I agreeflIc to pa half it -tO a ‘_&ci i_a_t tij€ ni 0 iiaO at regard. Tnis witness on the other hanc has stated in the course of the sross—sxamaiats -n trial al I ann his tefe Sharfkrenura were na eonliai. t,errns when they aere and ivhrii: uw\ niovttd to i-ew (,Ihinuria..Iagj a.nd A- I ascii tc give fine eoaehing to the ç M;s--. <1 %. 1 i i —— cia — ,u.hiraaptia. is —-- ui at raal,ena..: a nness ansi .ne. is tile. son and.. e.kte r< hrerher of Shanhantrunia. Thi.s \:Vii.iitiss beach haii i:iis rO’J]tI5T5fl5 tf 1 2t was hara.ssi..rie: the. deceased lhr changing the land h hIs a — t £ I i.irill hri.,.i .ig the second wife Kashibal, arid that A- I to A-3 r 1* 10,000/- to the accused and after 15 days his father went to Ingaleshwar and gave 5 tolas gold to the accused, he does not say in his evidence that the demand was made by this appellant But the mention of the word ‘accused’ therefore cannot be construed as demand by A-I himsclL At the same time in the evidence of PW- 10 the D.S.P. who recorded the statement of PW-4 ft has been brought out that PW-4 has not stated before the 1.0. about Rs. 10,000/- being given to A-i to A-3 when they had come to the village and PW-4 has also not stated before the 1.0. about giving of gold and money to A-i. Thus, the evldencc of this witness also gives the impression that there are improvements in material particulars in the testimony of this witness when this evidence is analysed in the backdrop of the evidence of the 1.0. who recorded his statement. 19 1 7. Thus a eareful examination of the evdeuee of. the material, witnesses does not give. t.l in impression that: this appellant was insisting ot tao pai ruent of P.s. 1O,0t.O/ oath. aid 5 tolas of gold and if that. were to be the ease, this appellant wonld not have tirken the pain of setting tip a separate honse for his wife and lived with her and even accord ii.ig to PW-1. the father of the deeeased, this appe.ilari and the deceased lived in their separate at. lngaleshwar. PW— I I ins deposed in lila e.vi ,.ieuee that his daughter was lived with A- I in the new house at lngaieshwar and even after the birth c-f the ehild the accused caine. atid visited the deceased and duri.ng the summer vaeations the acensed nsed to come to the honse of PW- i with the deceased and A- I also had opened an account in the name of PW-i’s da.ughter in SBi at Nidaguadi at.id kept sonic amount for eraurgenex and the said ass book is aiso predneecl as per Ex,D. ii 20 18. 11 the evidence of material witnesses is taken on the whole coupled with the conduct of the appellant herein in setting up of separate house at Ingaleshwar to stay with his wife l.a, the deceased and opening a Bank account in her name and not Insisting on the amount being paid to him, but, only having agreed to postpotie sending of deceased to the house of complainant during the Jan and the thither conduct on the part of the appellant in executing bond as per Ex.P.4 agreeing to give half salary to the deceased, all these factors do not g*ve room to take the view that the appellant was insisting demanding Rs. 10,000/- and 5 tolas of gold from the deceased. Even PW-3 also admits that A-i onened a Bank account in the name of the deceased and one year prior to the transfer A-i along with his wife and child went on a tour which is evidence fromEx.D.2; the evidence on careful analysis does not give room to take view that appellant was insisting on -1• c ferce sod }trino (liflTfl ot Os ) Id)iI 0b.s I t.iJ 10. 0 LoIas 01 fOill. Ii) in view ci’ the above so Id en once on rccoru a/li u’V-l A )1 j cq On t5r+ Afl fin) Sbauka.rc..mina tO (thin. tfl/d/141 arid ibte st.aved together and sill of them were having cordial rclatioristan and that even aider transfer to m 1 i /L I n.sed to get. hack •tc tn’pie;shwar to (tptçtjjt[ his xvno. fhere.Iore, shows t flit cittoosof was not subjected to harassmeet in coriueeuon with demand of down hr A- 1... Ax. such. when the demand of dowry itself Eras not been established I- placing oonviricmg evidence., th° question of sectior. 3O4fe3 of ILL gett.iug attracted does not arise. In this reg’ard it. is relevant to refer te the decisions nbxced by th,c lcai.rned Qove;rrnucrit, Pleader fir the; Stat.e, .2 (it let tin; cas of Kaiiusb Vs. ((bite ot NI P. OPtS 12 Sa]sr.ecLe 0ii01 (01505 00 nEro .Acx (Ernst clcai..irig x 1 0 a s’ o t xv axe — 1 t Er C. sir i.ljacket ibnnuia can be laid down by ibdug any timc.i-h._iit. and ti.Eie determination of the pe.nod which can come within the term “ soon before” is left to be determb cci hi’ the courts, ciepenctng upon the facts an.d circumstances of each, However, it normally implies that the interval should not he much between the eruei or harassment concerned and the deatti in qnestien arid there m. ust be existence of a proximate arid live link betiveen the words and phrases “ soon before“, hi another decision i.n the. ease of RAM PADAN SHARMA VS. SThTE OF BIHAR, (2006) lO SUPRE:ME COURT CASES lid it was held that where there was persistent deman.d f.or dowry and harassment consequent to nornfulhllment thereof soon before.” the death, within seven years of marriage, having been proved, the pres.umption under section 1 tOld of the Evidence Act gets attracted. (t 2 IL. Th.e. aforesa.id ndings are nat in. any view anriheanie to the ease on hand so far as the. fhet.s are eonoenceci, it is seen flora the evicLl.ence on record. in ttn.s ease t. .bat no downs wa.s JirOlit cvciii tic:Iore tim riraniasme are! can aneorcl bus to c.tuci. ciocceased herself -1- L- A I I ‘A 1 ifll C CC C I CLI t.di1 01 •ceU5t0 iei iau1iieuar A• I setting •iii a house at ingaiesnwar to live with the deceased and having talc:n the deceased and the ehdl for tour and having opened a.n aecou.nit, in the name of the deeeased. and al.so acrreeinuz to nine the. deceaseci half of iris salary Cii these factors do net J:i.ustuv 1 10 ptOSdiCbJtiCiIi charge clint. there an nra c Sec inCh and riii.at an ne71r in rcigcinu to ii iue sand eniane. of downs xvoii seen h.:4irrc...i the death ref Sirankarainnua.. uirercuiore, tire ernroa ingrecnenr. 01 seetien 3d.:.443 of 1PC eonee.nrnng de,taand. of ccomvrv and harassment in. that regard socurn before the death of tirci deeea.se.d, is missing and as .srreuu even if the other factors are trinen a.s Cr— 24 P11b1a1 Vs., the death having ta.ken place within scve•n roars of the maiviagp, death havihg oconired nraicr a cn’ciinjstancc otherwise than normal, vet ieee circanistat rie.s, in the aDsence of cvidciicc aidicating the. i*us4s”. onbicoted S’r, crncav 01’ 1100 assincitIl h l’icr husband or relrhvcs of tic hnsband in connection a itl’r 4 f513:5/’4 o down: and the said l’ia’ assnertt arc being soon bcfbrc.:i, fhe death of the deceased, do not a c to sa,’ 1’0 all tnt’ requroinctirs of section 30443 arc satisfied in t.hc instant case. 22 . s 1211 offtnec ‘‘‘,‘.‘“ii’).c Ujd section A of 1143 < . concerned, 11. 15 •“I”n case of the prosecution that 1.110. de.ccascd wa.s snhjcctcd to cruelty 1102 0 1.15 DlRt mtl/. 1.130030 Las pizvocci cr1oo. evidence to show that appellant licrelri took sceond wife 111 (.1111 1301511111211 1113101 31cc: 111.1.10111’. 1111.100 5 1.10 10131 hand cxecntcd by appc.hant agrcel.ng to give half salary 5. - , i-—’.,’,r-,s--,, S 1 “ z,,- I - I *5 — ‘1’-’ NOIVO siOckerl IL! 1’050030.. of the apuchanl’ nercin 1110301114 LCzt...Kt*.iJSLj.COTIC*j tri)1c. VV15C.F1 iie ]:.wosecuira.I.) t-ias p.iac:ed Co IV n C1.IY: evdernx. to• sbars that the a.ppeii.ant horei.n took. seconc y:ft) Illild therelore., agreed t.o give ‘ r 5 n 0 N CI Em P.4,. the coi.idnct of the appelLant therefore can b:e held to be of sue.b. a nature so as to bring his condnet ttijI tiitI moaning 01 till) lOflU cruelty, Section 498th 01 1 CC in the exp.a[u.aon has ma.de it. clear that the expresaton ctrneitv also means a) any willful conduct ivhich is cm uch a nature as is iiior to a.ri.ve. the ivoniari tO (mcciinor suicide or to CO1I5C: Ea*Vt.( itiJIliC) or tlaJi.gCr to life, limb or health (whether mental or phvsieai) of the woman, Therefore, very Ihet the apecliant. took ,.‘ç - .,, .t :‘ socdu’c. ‘4 (.10 iii. Li ±C ±01. to 01- .\td1 i1Viii itocit ciiii eelustrued cmii act urhich was sufficient enough to oring tiic case wciim toe ambit ot mentam crnei:cy and as sncn ta 1 5C ‘0 lead to- irrcnu,el cruelty bd..::ming 5lleured b the deceased and as such, the prosecution has proved beyond all ‘P 26 reasonable doubt the offence of cruelty punishable under section 498-A of die IPC against the appellant herein. 23. In so far as the cause of death is concerned, the trial court has ruled out the offence under section 302 of PC having been made out by the prosecution. Though the learned Govt. Pleader for the State relying upon the Apex Court rulings (2007) 10 Supreme Court Cases 433 contended that such appellant staying with his wife in the house and the appellant is not coming forward with any explanation as regards the cause of incident and therefore, this can be taken as a circumstance against the appellant, yet in my view the said circumstance itself will not be sufficient to hold that the appellant is guilty of the offence of murder. Moreover, the acquittal of’ the accused persons in respect of the offence under section 302 of [PC having not been questioned by the State by preferring any ‘V 27 cross-apneal. the aforesaid rulings therefore, cannot come to the aid of the prosecution. 24. As this Court has come to the conclusion after a careful analysis of the evidence on record that one of the essential ingredients of section 304-B of IPC has not been established beyond all reasonable doubt and further the evidence on record also not conclusively establishing the demand of the dowry by the appellant herein and his persistent demand in that regard, seen in the light of the very conduct of the appellant, therefore leads to the inference that even the offence punishable under sections 3,4 and 6 of Dowry Prohibition Act also are not made out by the prosecution. 25. The only offence that has been established by the prosecution beyond all reasonable doubt is the offence punishable under section 498-A of the IPC and as such, the conviction of the appellant by the trial .., 2 cc•urt. hi. s•o far as offence i:trdei. sectior.i 498 he of [PC is concerned. the said ceni Ic lO xvii.1 have to tsr qn.fieid 26 As Its. as the se•nten.ce is eo:ri caned.,. learned t.rial iinice b.as tinoosed a sri [eeoc of Ave years arid to pay 0. 1.1110 01 KS. 1,090/ and in rielanit of pai:lnenL 01. tine to irnderg SI for ih:reti r”A’xs As the as the s....7.i t (r..i.•1c•e is concern.ett, St.lblliiSSion of the ieanaod oonn.sel is t•btx he appcl.Ia.nt has airoady 1 i ():. ergo le .hnch.se ter < fl)5jfli of one ¶::(r and iire nionths and tI-Ic: inst ml .q 5 çj dates back to 1998 and niore than 1.0 nears }:: elansed and the child born to the conple is With the; a.ppeltant and it. js. aihou.t 1:2 years