IN THEE HIGH COURT 0;? KARNATAKA AT IBANGALQRE
DATEI) Tms 'i'E~IFZ 25'?" DAY 01:' NOVEMBER, 2::i{1'0 "j,T '
PRESENT K 3
T}-II?) I-iON'BI.E MR. JUSTICE} K;ASI?._E3EE§I-flivfi'i§A(5'
AND ' " V V
THE HONBLE MR. JUSTICEKN.KESHAVAI\EAféA':2'xNA
CR.L.A._ No.45?' 2905 " ~ '
BE'I'WEEN:»» V . A .
State of Karnatak;-3._,
By SidIaghatta_.Ru1fal.PoIice§ 2
H _. _ Appeilant
[By Sri P.M.;'Na'q_vaz';" " V_ '
m:w ' ' ' . '- .. . .
S/ 0'. uN"a;cee1=.Ah--am¢d,_ '' " "
Aged 2.6 y62a1?s.._ _
,Q.r:c: Silk .professi0'n.
.. Sg[0;.}£1;Ssa.insab.
'Ag'i::.1 55 _',I66_,Z'S.
" .__Oc(:: SiIk~pr0f'essi<).n,
_ 3. f3€'Eé.l::;ij0'};1x1,
W/ 0; A2661' Ahamed,
.. 45 years'
" , -AI."-1as€e1.1z21.
S / 0. Nazeel' Ahamed,
Agcid 23 y<-jaws,
2
5. Mubeena Mtibeenataj.
D /0. Nazemr Ahamed,
Aged 19 years.
All are R/at First Kamiikaiiagar,
Sidiaghatta Town.
Kolai' District.
{By Snit. N. Padmavathi, Advocate]
H it
This C1'l.A. is filed U/s.s78{i)"& ts) of Cr'.;AP'}e."by=--'tins"
State PP. for the State praying that this H':m'b1e C,"ciu.ijt_ may r '
be pleased to grant leave to an appeaJ_V.=agé;;irist the
judgment and order of acqu.it'ta1 dated-.V09.07'.2004 passed by
the Add}. S.J.. Fast 'I'1'ae1< C()u'i't--I.._:'K.01's_1* in S.C'.No.104/98
aequitting the Resposldent-gAee-use-d'~._ T01' the offences
punishable U /Ss.498--A, 30_4'wB',:.,'302 r/w."».See..34 of UPC. The
Appel1an.twState prays th&1I..IIh€.Va"iZ}OV[€ cii't:t,e1*'=rrVi---'i"y be set aside.
This appeai...t:.'cof;ai1'ig'"xfdi" ,ihea1*ii'ig on this day.
KEsHAvA1mrtAm.Ni\."J; _.«.._§1'eliVe.i*ed_'the following:
§;__iviENT
This: State is directed against the
.--iv.'jUd§§13:lCVI1TT'find.'"0'i"f3§21f__vda'L€d 09.07.2004 passed by the
Pi'e'sidin.g'«.y 'O_i'I'ir:_er, Fast Tractk Courtwi, Kolar, in
aCqL1it't:iiig the Respondentts/Accused
. Nosrl’ the charges levelieci against them for the
hi’/;’eei1,.eesVVVpumshable under Secttieiis 498~A and 304»B I’/W
EPC and Sectiorls 3. 4 and 6 01′ the Dowry Prohibition
” ‘A(€t’,. {For short. DP. Act) //)
” ‘{%§?;../’i
L
2. The case of the prosecrutiori in brief” is as under:
PW2 — Esmail Khan is the father of the deceéasecl
Mobeenataj. PW1 — }Z)ha.sihagirkh.ar1, PW6 — _
Khan and PWIB M Jaheeruddinkhan are _1.h.eV.A4_:E3Jjoi:he1?s
PW2. They are all residents of Ch:bini,a_rnani”‘.yto€yn–,_ f
No.2 — Nazeer Ahmed and A(fC1£_$ed Beehvij.12aVi1 are} the
parents of Accused Nos.l. 4 ‘Fhe~.acic:ised;: are the
residents of Sidlaghattaf d_ec’eas–ed~1i§/Iobeenavtaj given
in marriage to Accused No. was solemnized
on 23.03.1997: ;i¢,;1:theohottsie ofiixzjyrzrgVmjchixitamani. Prior
to the.»’rriarriageiif;negotiations””vsfere held. During the
negotiat’i.Q11s; the’.t’accL1,sedT;ge1;soI1s demanded dowry of
Rs.15,O0O}4<–.._invv a'«…'€}iratcch, gold kapali ring to the
bI'iCt'ifj:§.I'0v('3x}.'A3,V goid""n.ec_k1ace, gold ring, jumki. golden mati.
watch. a_1me'rahv, __cot etc. to the bride as dowry. PW2 agreed
and paid a sum of Rs.9,000/– in cash
_ andihéigoldy and other articles agreed at the time of the
and promised to pay balance of Rs.6.000/- after
. soxriehtiriizer. After the marriage, the deceased stayed with her
""I'1usband and in-laws in the mat1'in"ioI1ial home at
Sidlaghatta town. Thereafter, since balance dowry of
Rs.6,000/- was not paid, the accused started demanding
PVV2 to pay the agreed balance dowry in cash. Ho\vet{ere.:.j£?_Vv'2
could arrange only a sum of Rs.l,OCiO/~ and .
accused to grant him some more t_in1e_ to pay" K"
dowry of Rs.5,000/~. However. since dicdgnot
balance amount of Rs.5.Of)3(}/.3 the 'a.ccusedyj'v..pVersons , '
subjected the deceased to cruelty' .haras's:<nent physically
and mentally. On 27.O8.A–1._9-97, No.1 along with
the deceased came to theH_houVs%f(')f«feturned to the
matrimonial l'1C').V1'E1'6:l:,]'ll the evening' a1ong~-with utensils worth
Rs.2.00t3/~» On the next day i.e., on
28.08.1997 'morning:iat"~..gi'bcctit 8.00 a.m., PW2 received
information abotit the death of his daughter–l\/Eobeenataj in
"Vane ofygthellacciised. Immediately, PW1, PW2, ewe.
went to Sidlaghatta town, saw the dead
bodyrof thei:deceased~Mobeenataj in the house of Accused
_ "No.1 i:.njuri.es on her body. Suspecting that the deceased
A V~:hacdVllb*een done to death by the husband and relatives of
.___"'hug:sband, PW]. lodged a written cfémplaint to the SEC),
'?
‘..Jl
Sidlaghatta Police Station as per i£x.Pt at 10.30 a.n–1_, on
28.08.1997. Based on Ex.P1. the police
Cr.No.68/1997 for the offences punishable ‘
so4–13 and 302 we and st,1bniit.ied__iI%’.lR_’to ‘ jti§_i;gai::t,i’qg1a-1_V ‘A ”
Magistrate as per Ex.P6. and
death of the deceased had oeet1§*red Witvhin V7′ the 2 L’
date of the marriage. the LO. and
the Taluka Executive ptbbinquest: over the
dead body. Aeeoi’d_ingIy,vAPW5::–. Executive
Magistrate “t’he dead body of the
noon and 2.30 p.rn. on
28.08. also noticed the injuries
on the xddead the statements of the blood
reIatiVe_s oftheVVde<:é~asedVaiid other persons. Thereafter. the
– V. «_ dead w_as su”bjeré.t.ed to Post Mortem examination. PW4 —
I)1’V..Log;av1ia.ya.ki’–..who eondueied the PM examination in Govt.
S-i:d1.a”glie1tta and submitted PM report as per
E§XiP-2. €)13’ii’?_Et'(¥.»’ that the death was due to shock and asphyxia
“as a res-tutti of sudden aeclusion of respiration. fracture of
‘*.Traeh’ea and Lalynx by st1’aI1gu1ation. During the
(1
irivestigation staten1ent.s of witnesses were 1’ec01’ded. Further
investigation was tzlken over by Anti Dowry
Bangalore and after Completirig the i11\restigaf:ib’11. V’
sheet came to be filed for the offratices })t’,1I1iSi'”1’2Lb’}f3VVVL,1.i1d€i7_ V
Sections 3, 4 and 6 of the DP.
and 302 IPC.
3. After c0mniit.tg_ai t()h’the”xt3ou1’t of
Sessions, as could be the learned
Sessions the offences
punishable and 302 1190. The
accused”p’l~e«2td’ed iit§;t’–gujih1»tyv’t’e1?”t11e’;charges levelled against
them stifidu No specific charges were
framed fediathe under Sections 3, 4 and 6
of the D.P. Proseetadttien led evidence by examining PW}
__t0 I?i_4W’~14._sa11d piaeed»—reliance 011 documentary evidence E3x.P1
‘tQ”P2x:V.P9_.’The fiileiezicte of the accused was one of total denial
“‘zmd’__ in’1p1icat.i011. As could be seen from the
stiggestion pm. to the p1″0seC11ti011 witnesses in the CFOSSW
examinaittoii. the defence of the accused was that, PW2 had
db0rr§)tved a sum of R.s.5.0()O/~ from Accused No.1 and in
spite of repeated demands made by Accused No.1, PW~2_ did
not ret.t.1rn the money. Ult.in1at.ely. when the deeeasued
demanded her t’athe1*~PW2 to I’€lE,l1’I1 the .fan1o1:V1’r;.t’ V’
Rs.5,000/~. she was scolded and on .a4cooi-;iz1t.V”o’t’fthis,’_’she_V V
committed suicide.
4. After hearing botlllthe sides and onessessnieiit –. L’
of oral and documentary evidence, ,the learnled Sessions
Judge by the judgment —-1inder«__ap~pe.al–._act1’uitted the accused
persons of t.he charges levelled ‘holding that the
prosecution .t:§yprol\}«e t;he_Vehai’ges. Being aggrieved
by the ol”‘e;equ–;.t;ia.l’, the”‘SetaV:te is in appeal.
5}, l we P.M.Nawaz, learned Acldl. spp
fer the State S:_ntL’~'”}N.Padmavathi, learned counsel
‘V’~..V_appearin.g for theaeetised. Perused the records, carefully
e::<arnin.<::vc'i'ii*ljieV xo'1':al and documentary evidence and also read
the it 1.t'nde1* appeal.
In the facts and circumstances of the case. the
‘points. that arise for consideration in this appeal are:
i) Whether the learned Sessions Judge is justified
in acqiiitting responderits/accused persons of the
charges levelled zigeliiist them?
ii) Whether the judgment”: under appeal 3
perversity or illegality cialliiig for V’
this Court’?
7. it is the submission of Slll”-1′,’ the it
judgment under appeal suI’ie1’sl’i'”rl.-:V:i.’I”11 peiversity etndlvtillegality
as the learned Sessions “J..1,1dgei’lhla’slflfiotll”appreciatedl the oral
and documentary evidence and the
reasonings adop-t’.ed-. by; leai*1ie_dVVv.Se’ssions Judge is
perverse. “”” <th'e.l» '3;udghi'e'il1t under appeal calls
inte1~I'ere;1_ee his further submission that
the learnedll'S_ess.io1lis' JAu_dgell-~'has not framed proper points for
cons.id&:erat'ion "the_____j.udgme11t and this has led to an
eri'oi1eous'judgIne11t. It is also his submission that': the oral
e.v~i.dle~n,ee 'ofl_"m_atei*ial witnesses though are closely related to
. the highly consistent. and cogent with regard to
;p1'e he1a1'riage negotiatiozis, demand of dowry by the
_ =_aC.CtiSed and later acceptance of dowry. According t.o him,
tlie evidence on record also saiisfa(7torily establishes that the
/3
H}
in acquit:t.irtg t.he accused persons. It is her further
submission that. the learned Sessions Judge has
cogent and acceptable reasons for not : V'
of the close relatives of the decea_sed.__as ll
sitting in appeal against. the jt1dgrr1e1'1:§_'_'lc;ilV
lightly interfere with the judgoie-qt Aaclc1L:it'rtalrecorded by * it
the Court below, merely_ on the___g1;lrottr1d_V tl1at View is
possible on the same fgt "l1l(::r:lt:rther submission
that though the Ar_11edica1~– presence of
some ligature injuries on other
parts of thel'b.od_gfi»'&:olh. it may be held that
the the prosecutiori has
not placed lanlyl "show that the deceased was
four1d.i.n. tl1el"ooir1pa'ny.l'ot' Tally of the accused persons at or
the time oflldeath, therefore, the learned Sessions
Judge in acquittirig the accused persons for the
offeijiee ;)t.tt'iisliiable under Section 302 IPC.
9.” t” It is her fu.1’ther submission that in the light. of
it recorded by the learned Sessions Judge that the
l u pr§;)secut’.ioz1 has failed to prove the charges with regard to
&
cro1i1sider”1′.he case on hand.
the demand and aeeeptaiiee of dowry. the charge L_1_1_ider
Section 304»B IPC has been rightly held as 1iot.«jpr:o’c.red,V.A
Therefore, the learned eounsel stlbmits that
under appeal does not call for i11E’eri’e!?en_c_?e bylthlils”
10. We have bestowed our lS«€1’i:O’LlA.E} eoi1sViderati”oi1’~_to”.
the subinissiolis made on bothlsides. We are “eoli1eeiods of l’
the fact that the appellaie. a;afjeavl..against the
judgment of acquittal cai1hoi’. the judgment of
acquittal recorded is established
that the or illegality either
on aceo’LIiii:..: 03- ‘the evidence or non
eonsideratiori __e\’lride11cQ. on record. It is also
well settledwtjhat riierelvheriause another View is ossible on
the ~ éeame set; o1″~–eeVV_i_d_er1ce, the appeilate court should not
»si1bsuti’LuAte.Aitéewriew if the View taken by the trial Court is
reasoriafoltifhawaihg regard to the evidence on record. Keeping
i’hisu””wei;l: .s”et’.l:leCl principles of law in mind, we proceed to
1-?
1 1. Perusai OfjL1C1g1?fl€I1E. urlder appeat indicates that
the Eearned Sessions Judge has not framed proper point;-2. for
eonside1’at.io11 in the course of the judgment. NOI1€th.€’1€S’S_he
has eiaboretteiy considered the orat and C1__C:*’.(‘§ti1i1V_6i7l.,:’E’c’11T;’xf
evidence with regard to wit the offences 1’I_1entioi1ed:”in_ the
charge sheet. No doubt Charges are framed only’ for’offeii’oesu’
punishable under Sections 498–A. and”3_(.)2.
no specific cliarges are i’ran1eid_V’fo1′ the”ofien_ees j31ji’iiShéb1€ * V
under Sections 3, 4 and 6 of £.XCt~..t_:However. the
prosecution has been at1owed.’to orat and doo’umentary
evidence to prove the offerirges”p1,ihis11ah_1extirtder Sections 3,
4 and to note here that the
p1*osecuto1je’\xt1’1o the prosecution on behalf of the
State. are ufideté “itnoxv before commencing the trial
* .._,g:S V’dL:e~’:)i:’i’o.1i’i~:’wh:§it ot:i:eriC’eSV the Court has framed the cliarge. If
,_’_.a’€:e’oi’di_:rt;t:V:&to’i;he_;.p1~osecL1tor neoessaiy and relevant: Q1-1a1’ges
it is their duty to bring the same to the
‘V._1’1OtiC€ Court and seek atteration, addition or detetion of
haviiig regard to the mederiats ptaced atong with the
t fihai report fited under section 1.73 Cr.P.C. In the Case on
13
hand, the iearned Pubiic Prosecutor who appeared Vii-‘1__ the
case appears 10 have been not made any such
bring to the notice of the court that the c}121u”r;ges..«TiIb’o.2;” ”
offences under Sections 3. 4 and E_§~Gf._Lh6 .é;re’_jnO’i_V Vb
framed. Even after ieading the 0|’ai’:.eVi;c1erIce1’wi’th.lregafd.
those offences, at the time ()f”a_r’g-L.1n1er1At’,v-alss, the ‘s_ai::!..c”lel’ect. * V
appears to have not been l)1’011g1nf’tc_ the ncti'<:e'v _(')AI' VAt_f1e court.
Section 464(1) of C1'.P.CA:«–._ciirec'AtV;s 'fnxtgling, sentence or
order by a courteof cornpeiheni; fsball be deemed
invaiid n1e1*e1_y?_.:v()4¢rb1:1'{bee was framed,
unless in 1b.e cf appeai a fafiure of
justice on account of such
0missi0n'xrn""irfegu_fAs.£iAtf.:_'"In':"E\,Té1i11 Pal Vs. State of Haryana,
AIR 2010 SCb32:V92;.{he.'Ag)«e; in “pa.ra 9: —
“._;’9′ L
{i} xxxx xxxx xxxx xxxx
(ii) xxxx xxxx xxxx xxxx
(iii) In ju(igir1g 21 qu.est1’n of prej1,1dice, as of
guiii, the c0u1″1.s I’I1US’1 act’. with a brozzld Vision and 100};
A
to the substance and not to the technicalities,-_and
their main concern should be to see XX-‘l’l€tl1V€7I”.”ll1’€
accused had a fair trial. Wl]€l’.h€l’ he knew V\’«l”1E1t’_l’..(§”\Fi£3,S’
being tried for, whetehr the main facts SQl:lg.l1″;._l.0llbfélf l
established against him we1’e_explained”tovhirli” t’?;m~iyV l’
and clearly. and whether he lftill ‘and1:ig:e1d:.’
chance to defend himself,”
12. in View of the fact~that the”pi’osecution”l’ias: led ”
oral evidence with regaijd. to ioffenees.landvtllel defence
has not objected for lealdiingt the ground
that no cliarges_a1’e charges for
those offenc_e–s- an#y:;’pitej:1:Jldilced to the accused
nor on tliat _it”can»__held that the trial is vitiated.
13. lelazfned Sessions Judge during the course of
~ , t uihi:lVeVc_onsideri’ng the offence punishable under
6 of the DP. Act” after refei-ring to the oral
evidence of PW} to PW3. PW6. PW8 to
by -V Pwlli . has held that the evidence of these
:,fl:wit::esses. with regard to the alleged prewrr1ar1’iage
i’t_eg’c:’ti21t:ior1s and demand and acceptiancre of dowry by the
” ‘”a’c(:used cannot be accepted. The l€’é1F”l’}€’d Sessions Judge
(. .,
“‘
has disbelieved the evidence of these witnesses for.__the
following reasons: ~
The evidences of these wit.1r1esseS,’:are_uI1vi.:gi11j}””-e
inconsistent. discrepant and fut}~-o€’i”0rn’i.ssio1′;sit
and irnprovements.
The agreement ViZ.. Kaui’.BiidaA’said”t’_Q. have
wr1’tt.en at the ti_r1’1e__ ot”‘ma1*1fiage”‘ itallgsn .and
exchanged between uth.exdpa_rt:ies” is produced.
The video ca~s_settes””ofnr.:’th’é%’n. ;;ia1~riage ‘ceremony
which depicts of dowry is
notP1.70du.c€d~g. ‘ ‘ .~
Th;e”‘_neu1’sor:s gin7 W11ose–v.Vp_resence dowry of
tohave been given are
not’V”‘:iarneci_.noi’~’t:~hej7 are examined before the
‘There doubt about as to whether
xrdowrydot’VRs.9;0OO/W in cash was paid prior to
tr.he”:narriage or at the time of marriage.
“i’7.1f0m the evidence on record reasonable
ivinference can be drawn that PW2 was not in
fjin:;_incia.! position to pay dowry of Rs.9.O00/W.
‘ evidence of these witnesses with regard to
the pre~rnarriage negotiations and demand as
well as acceptance of dowry is completely
omission during the investigation. As admitted
ih
by the Teihsildar examined as PW4 and Police
Officer ~ PW14.
14. According to the Add]. Public P1’oseeaaltorl’i’the
reasoning assigned by the learned Sessio_ns’-.cVJ’ui_dge to-«
disbelieve the evidence of these witncsslels isl’xhig1″1–lyl p_er_vlersel”«
and contrary to the evidence on record.
15. In the light of t.hel*stibniissions;-Welearefully
examined the evidence ioi=7__the_se rna1;§I’.ia’l..«wit1ieslses and we
found that the learned Sessions is justified in
disbelieving the’evi’_’dene_e of for the above
reasons. No: the ‘evid_enee_’ of the witnesses cannot be
discarded pi”: the v.groiii’Id”-thatfithey are closely related to the
victin1–..or deceased. Nonetheless the evidence of such
‘ .witfieesse’s:wi:ll& have carefully and cautiously scrutinized
ebeiorenai’:€:e§’:t.ingdhe same. in the instant. case according to
‘i.1ieevidVei;1ce_. ‘oi’ these witnesses, few days prior to the
‘V.,:11arria’g,§e{‘:. negot.iations were held and during such
Zriegotijatioiisl the accused demanded dowiy of Rs. 153000/W in
” cash and gold 01’nan’1e11t,s. However. in the ci’oss~exarninai,ion
(/7
of PW2. it is elicited that Accused Nos.2 and 3 attende_d__l.he
marriage negotiations. PW2 admits in the C1’OSS-€XE1FIiVl’l?;Elitlt5I1_’
that at the time o.fn:1a.1’1*iage negotiation a w1’itte;j
vi2c., Kaul Bida came into existence it
between the pE11’ti€S. l’IOW€?\-‘t3I’, tl1e:V.sai:d_’i
was not produced before ihe”:§,”o1;V1’t. 2Nvobieen
made by the PW2 to hand OV€1f_’ft:}lC:”S¢E§i1€ during
investigation nor the efforts. It is
also in the evideflkéet :t’}.19cv” this written
agreement investigation.
Thus 3. Vergz documentary evidence
which vlrith regard to the demand
and aeoe1;;t_anee been produced and it has
been is ‘withheld.lv” Ttie1’efo1:e, in our opinion the learned
l”‘Ses’sions”}Jddge is in drawing adverse influence for
written agreement which came into
(i’.D{l_’~3..”l:’.:’e’,l’lC§v'(V’: time of pre–marriage 11egotiai.io1’1. It is in the
V’~».eAVide11L:e__of PW2 that mar1’iage ceremonies are videographed.
to PW2 giving and taking of dowry has also been
vi?deog1’aphed and videoctassettes contains all those details. It
is also in the evidence of PW2 that copies oi_’,__the
Videocassettes were given to both bride and britiegrooiii
parties. It is not the say of PW2 that he haricied
Videocassettes to the LO. during…..invest_igat”i0IT.noréfihe
produced the same before the Cotart :g:i’uriiiig.his”‘e\}id:ene’e1;_’
Thus another important material ‘-which 7vVWo;1ii.<,:_1H have
clinchingiy proved the giving has been
Withheld. 'I.'h.e nor1~protfl.ti:r;tion oi;.iVide.oi:asset.teA has been
rightly Viewed sei"_i0us1y_.by:._the'V..tearné3~gtVéessiorls Judge to
disbelieve the V regard.
16; “”” evideriee of PW2, he gave cash
of M about 15 days prior to the
marriage. flt«,is.furt:her_ ‘ei.i :ited in the eross–examination of
PW2«~§.&1hat when”i1e___gave Rs.9,000/~ in his house, about 9
persons:we11e”~–present. According to him 4 persons from
aztefustedv side 5 persons from his side were present and
except ttiose-‘*9 persons no other persons have seen giving the
a:Ar12o’t:r1tV.”‘}-ie has not stated the names of those persons who
i ‘we”re7 present at the time of handing over the Cash of
-~.EIts.9.000/– to Aoctzsed No.1. This eirettrrlstance in our
,4 “.3
om…
/”
19
opinion has been rightly viewed seriously by the learned
Sessions Judge to hold. that there is no céogentfand
acceptable evidence to establish that PVV2 ha11ded–.ov:ei’–. ~
of Rs.9.000/~ to Accused No.1 prioipto the
learned Sessions Judge after 1-eferiincg {hie etfidencell
other witnesses has heid thatthere is-..seriousvl as to
whether cash of Rs.9,000/– waslllpaidjew ‘p1*io}1* to the
marriage or at th.e t;irne.._.o”£’_1i1.a1’1:ia.;:e~–…_’As’~such there is no
consistency in the_eviden.ce.:of1hese_wttnesses'”in this regard.
17. ..Tite.._pi:o.sec°uti_Qn also examined PWs.9 to 11
who were”‘stat”ed tcfihe “i–hd–elpenden”tl persons present at the
time of3_ma,rriagle’i’ieg(;i;.iati o’i1s; However, PWs.9 to ll have
not supportéed the prosecution, as according to
then1;,’ih..ey did» Anot’latt’end the marriage negotiations. They
lditaxle treated Thus the evidence of PWs.9 to 11
is of’no–v.»_assis_tance to the prosecution in proving the pre
niarriage rieiggofiiations. No doubt, in the cross–examination of
Taitika Executive 1\/iagistrate, it is elicited that
_l’dt1ri.ng inqt.iest.. he did not come to know anything about prev
it :n1’a:”r.i’age t’.alk.._ about demand. of Rs.l5,000/« and gold
4
30
ornaments to the bride and bridegroom and that no_body
stated before him anything; about the demand l’ci.if”vd’owr*§;
during negotiations. In our opinion these answers_é1::3’itea–., ~
from PW5 is contrary to the eonte11_t.s…o_f_ li”‘ep_’ort~_i.v
Obviously the witness has given this a’ns’§ver»._wiihot1Vt
looking into the inquest rejior-t. submitted hirn and
marked in evidence as lf3X.P.3. to state
that during the trial. should not be a
mute spectator and he during
trial. _.§irevv1§ltit;;*«before recording the
answer, it the Presiding Officer to
verify the pjroeeed to record the answers.
in the ease’– on’haiid,:’t’,h_is«step appears to have not been
taken by the vlear’neAd_v’Se~ssions Judge who recorded the
evideincelA’of the”witn_esses. Similarly from the evidence of
:AP’.V_Vll4–PlS?I, elicited that during his investigation, it was
lL_no¢i_;. re’-ze’a.letil’thlat. there was a marriage negotiation three
dlays’befores:th.e marriage, and it was not revealed that during
the nivestigation whether any ornaments were given to
it Aeensedl No.1 or the deceased. Before recording this answer
/?
‘$
(
:-..2
: ..~
18. The Whole case of the prosecution rege1rditigl”»the
offence punishable L1I}d€I’ sections 4984-\ and
was that since PW2 could not pay balan_ee’~..eoi”:.A_1dow”r’§’;~l
Rs.5000/t agreed to be paid, the”: acet1’sed._ s-t1’oj:ec.t_,;-gll”theli
deceased to cruelty and harassme11t.7._ Ho_wever,_”_tt;he Eearjf1’e.t;1’*
Sessions Judge in the his ‘—finding the
prosecution has utterly ‘failed thlevacetised h.ad
demanded dowry of prewmarriage
negotiation and :l0.000/t towards
dowry ieavtgttgh held that the
llar1’dv~-8é()4–E3 IPC has not been
made iifosecution that there was a prew
marriage lEnegotiation7._ during such. negotiation, the
&_ accu§3ed_llden1andedVVa___sL1n1 of Rs.}5OOO/W, as dowry and out
»oi”t»he had paid only Rs.9000/- is held to be not
‘proved.V”Vihe:.,_further case of the prosecution that for non»–
payrnen’toI'”.ba1ance dowry the deceased was coerced and
._su.’ojected to cruelty and liarassment cannot be held as
“plroveld. No doubt, the death of the deceased had occurred
“”tVithiK1 7 years from the date of the marriage and her death
‘it
was otlieiwise than under nat’t11*al circumstances. However.
the evidence on record. does not sat.isfact.orily estabiisli
the deceased was subiected to cruelty or ha.ra*ssnien:lt.’~int *
connection with dowry soon before her death. ‘I’heer;efol1’cV,_lt’.he_V V
important ingredient to coiistitute”. ofif_et’1’V:}’_-1V0{lI.S’ prior to conduct of PM
exami11at’1on”doeshotfinvéanjfWay create doubt in the case of
the pIfOSeCutt(“)n_Tab0t1t thetime of death of the deceased. This
.”ahs’we’1~i,_e3iei–ted frof1’i””‘PW4 on the face of it cannot be
_ae'<;e;jted';' ~ V'
jftettordiiag to the prosecution. PW1 lodged a
"'-=.__"-cgnipiaimjfas pea' ;EZx.P} at 10.30 a.m. on 28.08.1997. in the
it has been clearly stated that at about 8.00 a-m.
u ori that day. ctoniplainz-int. received information about the
4
26
death of the deceased and immediately. they came to
Sidlaghatta and after seeing ihe dead body. cornpla«ir’1t:.wa’s_A
lodged. As could be seen from the FER ~«» Ex.P6 co_a”i;plaifri~.g”hfaxid”v ~
F’iR reached the jurisdictional Magist_rai;e_at. ZQOO V6nV’_*i;he–_
same day. According to the evidenceA:4oi’ii5″\f>Ji3 4’»TI’ah_s’iidai’,i’–..h’e?.i_i
conducted the inquest. betweeI’;’ and’Asvl
per the PM report and the eviderice-l.of’ exaniiiiiation
was conducted between ‘.:’il.€”_»bt:lr1e say of PW4
that the death might haVfewtal_<en prior to
the conduct tolbe"accept.ed. the death
must have iovccillilifiiodl by which time
already and inquest was being
conducted;JObyiotislyyythiisjanswer given by PW4 cannot be
accepted. time of death of the deceased
. V. be:do1.,ibted.llCifilvt.he other hand. the contents of the
3'.r1L'1;,i_elst; i;nd.icates that the dead body was first seen at
abolitll5.3.0lal};.il: on 28.08.}997. Thus from the above, it is
*r.:lear thatA'1.t.11e death of the deceased was homicidal and it
o"ccu.1'1'ed in the house of Accused No.1 with whom she
K was residing as on the date of death. ,
27.08.1997 along with utensiis worth Rs.2.000/–. It is not
stated in Ex.P1 that the deceased also had accompanied the
Accused Not to Chintamani and they together went
Sidlaghatta. However during the evidence ~
stated that on 27.08.1997 both deceased an_d."Acci,_i:sede
came to Chintamani and on the saine day'; t,1'iey'~vx}ent
along with utensils worth no
consistency as to whether hand the
deceased came togetherA"«–to" __27.OEA%.V1A997 and
went back to Sidlaghatta»t,oéetherAéih' Except the
say of PW2 No.1 and the
deceased' along with utensils
worth /Atialhjsoiutelyjithere is no evidence to indicate
that Accused. No,V1'V._wa–s Vprzesent in the house during that
night, The leariied Sessions Judge 1'efer1*ing to several
.dec_is1or_i's.A¢hasobserved that the Courts cannot proceed on
A-.prr;_surs1,p'i–ion'amid conjunctures to hold that the deceased
was_iast.V.seeh'iin the company of Accused No. 1. during that
night. lrijthe absence of any cogent and acceptable evidence
pr-ove t.he presence of Accused No.1 in the house, it cannot
/I
29
be said that Aeeusecl No.1 was responsible for the homi.(__:_idal
death of the deceased. In this View of the n1atter..’inj’«our_
opinion, the learned Sessions J udge is justified ‘ .
the eteeused for the charge punish;1b.1.e__ttladuefi-‘seuetion 3013;,
‘I
IPC. The judgment under appeal, ih our .opin1′,oI1, “iS’VL’;’f:.:5’t1_X1″‘(1V”
and reasonable having regard’t:Q’«.tihe etfidelxee
it cannot. be termed as pe1’ver_s_u_e”‘-or–j}1egs1;..xTh’ere:fore, the
judgment under appealv hot. {oh tnte1’fe,~eA1’1ee by this
Court. Accordingly, the
8:31,-5%
FUDGE