IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr.JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.1003/2013 C/w.
CRIMINAL APPEAL NOs.1027/2013 & 228/2014 CRIMINAL APPEAL NO.1003/2013 : BETWEEN:
SRI. AHAMMAD KUNHA S/O HASANABBA, AGED ABOUT 69 YEARS RESIDING AT SHANTHIBETTU MANE KOWKRADI VILLAGE PUTTUR TALUK, D.K. – 574 201. … APPELLANT (BY SMT. HALEEMA AMEEN, ADV. FOR SRI. S. VISHWAJITH SHETTY, ADV.) AND:
1. SMT. MARIAMMA W/O MOHAMMAD, AGED ABOUT 44 YEARS R/AT NALAYIDAGURI HOUSE PULLITHADI, UPPINANGADY VILLAGE PUTTUR TALUK, D.K. – 574 201.
2. SMT. KAIRUNNISA W/O IBRAHIM, AGED ABOUT 37 YEARS R/AT PAPETHADKA HOUSE, MUNDOOR VILLAGE NERIMOGARU POST PUTTUR TALUK, D.K.-574 201.
3. SMT. NAFEESA W/O LATE ABDULLA AGED ABOUT 66 YEARS R/AT KADAMBU HOUSE PERNE VILLAGE BANTWAL TALUK D.K.-574 217.
4. STATE OF KARNATAKA REP. BY SPP HIGH COURT OF KARNATAKA BENGALURU – 560 001. … RESPONDENTS (BY SRI. R. B. DESHPANDE, ADV. FOR R-1 TO R-3; SRI. I. S. PRAMOD CHANDRA, SPP-II FOR R-4) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 CR.P.C., PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED:22.08.2013 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU SITTING AT PUTTUR, D.K., IN S.C.NO.74/2012 – ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 498A, 302, 201 READ WITH 34 OF IPC AND 3 AND 4 OF D.P.ACT.
***** CRIMINAL APPEAL NO.1027/2013 : BETWEEN:
SULAIMAN @ KEDUVADKA SULAIMAN S/O ABDULLA BEARY @ BHAVA AGED ABOUT 40 YEARS R/O KADAMBU HOUSE, PERNE VILLAGE BANTWAL TALUKA, D.K. - 574 211.
(BY SRI. R. B. DESHPANDE, ADV.) AND:
… APPELLANT THE STATE OF KARNATAKA BY THE ASSISTANT SUPERINTENDENT OF POLICE PUTTUR SUB-DIVISION PUTTUR, D.K. - 574 201. … RESPONDENT (BY SRI. I. S. PRAMOD CHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE DATED 22.08.2013 PASSED BY THE V ADDITIONAL DISTRICT & SESSIONS JUDGE, D.K., MANGALURU SITTING AT PUTTUR, D.K. IN S.C.NO.74/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 201 OF IPC.
******* CRIMINAL APPEAL NO.228/2014 : BETWEEN:
STATE OF KARNATAKA BY THE ASSISTANT SUPERINTENDENT OF POLICE, PUTTUR SUB-DIVISION PUTTUR, D.K. DISTRICT – 574 201.
(BY SRI. I. S. PRAMOD CHANDRA, SPP-II) … APPELLANT AND:
1. MR. SULAIMAN @ KEDUVADKA SULAIMAN, AGED ABOUT 40 YEARS S/O ABDULLA BEARY @ BHAVA R/AT KADAMBU HOUSE PERNE VILLAGE, BANTWAL TALUK D.K. DISTRICT – 574 211.
2. SMT. MARIAMMA AGED ABOUT 44 YEARS W/O MOHAMMAD R/AT NALAYIDAGURI HOUSE PULLITHADI, UPPINANGADY VILLAGE PUTTUR TALUK, D.K. DISTRICT – 574 201.
3. SMT. KARIUNNISA AGED ABOUT 36 YEARS W/O IBHRAHIM R/AT PAPETHADKA HOUSE MUNDOOR VILLAGE NEERIMOGARU POST PUTTUR TALUK D.K. DISTRICT – 574 201.
4. SMT. NAFEESA AGED ABOUT 65 YEARS W/O LATE ABDULLA R/AT KADAMBU HOUSE PERNE VILLAGE BANTWAL TALUK D.K. DISTRICT 574 211. … RESPONDENTS (BY SRI. R. B. DESHPANDE, ADV. FOR R-1 TO R-4) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 22.8.2013 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, SITTING AT PUTTUR, D.K. IN S.C.NO.74/2012 - ACQUITTING THE RESPONDENT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A R/W 34 OF IPC AND SECTIONS 3 AND 4 OF D.P.ACT AND ACQUITTED THE RESPONDENT/ACCUSED NOS.2 TO 4 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 3 AND 4 OF D.P.ACT AND UNDER SECTION 498A, 302, 201 R/W 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING THIS DAY, Dr.H.B.PRABHAKARA SASTRY, J., DELIVERED THE FOLLOWING:
JUDGMENT The present appeals have been filed against the judgment of conviction dated 22.08.2013 and order on sentence dated 24.08.2013, passed in SC No.74/2012 by the learned V Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru, sitting at Puttur, D.K. (hereinafter for brevity referred to as ‘trial Court’), wherein it has acquitted accused No.1 Sulaiman @ Kedudaka Sulaiman for the offence punishable under section 3 & 4 of Dowry Prohibition Act, 1961 (hereinafter for brevity referred to as ‘D.P.Act’) and Section 498-A of Indian Penal Code, 1860, (hereinafter for brevity referred to as `IPC’) and convicted accused No.1 for the offence punishable under section 302 and 201 of IPC; and it also acquitted Smt. Mariamma, Kairunnisa and Nafeesa, the accused Nos.2 to 4 for the offence punishable under sections 3 & 4 of D.P. Act and Sections 498A, 302 and 201 read with 34 of IPC.
Criminal Appeal No.1003/13 is filed by the complainant/father of the deceased challenging acquittal of Accused Nos.2 to 4 for the offences punishable under Sections 498A, 302 and 201 of IPC and 3 and 4 of DP Act.
Criminal Appeal No.1027/2013 is filed by accused No.1 challenging his conviction for the offence punishable under Sections 302 and 201 of IPC.
Criminal Appeal No.228/2014 has been filed by the State seeking conviction of accused Nos.1 to 4 for the offence punishable under Sections 3 & 4 of DP Act and Sections 498A, 302 and 201 read with Section 34 of IPC.
2. The prosecution case has begun with the complaint said to have been filed by PW-1 Ahamad Kuii, father of the deceased before the respondent – Police on 26.7.2011. The summary of the said complaint was that his third daughter Avvamma @ Ayisha, was given in marriage to accused No.1 in the year 2007, and she was subjected to cruelty by her husband, mother-in-law and sisters-in-law. On the morning of 26.7.2011, he received a telephone call from his relative informing that his daughter Avvamma @ Ayisha had fallen in a stream (vÉÆÃqÀÄ/Thodu) in a place called Nalayidagundi. After hearing the information, he rushed to the said place, where they noticed the dead body of his daughter Avvamma @ Ayisha. The complainant alleged the ill- treatment meted to the deceased by her husband, mother-in-law and sisters-in-law. The said complaint was registered by the Uppinangadi Police in Crime No.78/2011 against the accused for the offence punishable under Section 306 read with Section 34 of IPC. Subsequently, based on the further statement of the said complainant on 28.7.2011, the Investigating Officer incorporated Section 498A of IPC also in the crime. However, during the course of investigation, he has secured the evidences to show that the death of the deceased was un-natural and it was a dowry death, and therefore, the Investigating Officer on 23.10.2011 added Section 304B of IPC also.
Lastly, before concluding investigation, after analysing the materials collected, the Investigating Officer on 19.11.2011 further added Section 302 of IPC. Thus, he filed the charge sheet, for the offence punishable under Sections 498A, 304B, 302 and 201 read with 34 of IPC and 3 & 4 of the DP Act.
3. Charges were framed. Since the accused pleaded not guilty, trial was held, wherein the prosecution in order to prove the alleged guilt against the accused, examined PWs.1 to 19 and got marked documents from Exs. P-1 to P-15 and Material Object MO-1. On behalf of the accused, no witnesses were examined, however, the documents at Exs. D-1 to D-5 were got marked.
4. After hearing both the sides, the Trial Court by its impugned judgment convicted the accused No.1 for the offences punishable under section 302 and 201 of IPC and sentenced him accordingly. Further, the Trial Court has acquitted accused No.1 for the offence punishable under Section 498A of IPC and Sections 3 & 4 of DP Act and further the Trial Court has acquitted accused Nos.2 to 4 for the offences punishable under Sections 498A, 302 and 201 read with Section 34 of IPC and Section 3 & 4 of DP Act.
It is against the said judgment of acquittal against the accused No.1 for the offence punishable under section 498A of IPC and Sections 3 & 4 of DP Act, the complainant has preferred Criminal Appeal No.1003/2013; accused No.1 has preferred Criminal Appeal No.1027/2013 to set aside the judgment of conviction and order on sentence passed against the accused No.1 for the offence punishable under Sections 302 and 201 of IPC; and the State has preferred Criminal Appeal No.228/2014 against the impugned judgment of acquittal against accused Nos.1 to 4.
5. Lower Court Records were called for and the same are placed before this court.
6. Heard the arguments of the learned counsel for the appellant – Complainant, accused No.1 and the learned State Public Prosecutor-II on behalf of the State.
7. Perused the materials placed before us including the Lower Court Records.
8. Among nineteen witnesses examined by the prosecution, PW-1 Mr. Ahmad Kuii, who was the father of the deceased, has deposed in his evidence, that his third daughter Avvamma @ Ayisha i.e., the deceased was given in marriage to accused No.1, about 5 years prior to her death. Her husband i.e., accused No.1 Sulaiman was working in Saudi Arabia. At that time, after the marriage his daughter lived happy married life for about one month in her husband’s house at a place called Nekkere. Thereafter, accused No.1 left for Saudi in pursuance of his avocation. Accused Nos.2 and 3 are the sisters-in-law i.e., sisters of accused No.1, Accused No.4 is the mother of accused No.1 and as such she is the mother-in-law of the deceased. After accused No.1 left for Saudi, his daughter Ayisha was residing with accused No.4. One year after the marriage, the accused sold their property at Nekkere and settled at a place called Perne. For about three years, Ayisha was residing with her mother-in-law and unmarried sisters-in-law. The accused was visiting once in ten months or one year. The witness has further stated that as and when his son-in-law used to come back from Saudi, he used to demand for money for his return journey ticket to Saudi, however, the husband and wife were leading a happy married life.
The witness has further stated that at the time of marriage and based on the marriage negotiations and as demanded by the accused, he had given a cash of `1 lakh and 35 Pawans (Pawan - which is equivalent to 8 grams) of gold ornaments. The said cash was given to accused No.1. The witness also stated that his deceased daughter used to visit their house now and then. As such, just a week prior to her death also she had been to their house along with her husband. At that time, the accused No.1 had placed a demand through his daughter to him for some gold or cash. However, he could able to give him a sum of `10,000/- cash.
9. That being the case, on the night at about 9.30 p.m., on 25.07.2011, they received a telephone call informing that on the next day morning, his daughter Ayisha would be coming to their house along with her husband and their son. However, they did not visit on the next day. These people waited till 10.00 p.m., it is only thereafter they received a telephone call intimating them that their daughter is not well and she has been admitted to Hospital in a place called Uppinangadi.
Immediately these people rushed to the said Hospital only to see the dead body of their daughter Ayisha. There they saw the dead body having sustained injuries on its face, i.e., near the eyes, forehead and on the back side of the head. The police also visited the Hospital, before whom he has stated that his daughter was killed. However, the Police Officer, who had been to the Hospital, informed him that his daughter jumped into water while going on her way. The witness also stated that the Police had brought a written document for which they obtained his signature by force. The witness has identified the said document as Ex.P-1. He has further stated that the Police summoned him to the Police Station where, they took his signature on the document which document the witness has identified and got marked as Ex.P-2.
The witness was subjected to a detailed cross examination, wherein he adhered to his original version and denied the suggestions that the death of their daughter was an accidental due to slip in a stream of water.
10. PW-2 Smt. Mariyamma, the mother of the deceased – Ayisha, has followed the lines of the evidence of her husband so far as marriage of their daughter Ayisha with accused No.1 and demand for valuables and on the demand of the accused, at the time of marriage, they also alleged the mother of accused No.1 as the cause for the death of their daughter. The witness has stated that at the time of marriage negotiations, one lakh in cash as demanded by the accused was handed over in the hands of accused No.4 and the gold ornaments weighing 35 pawans were also given to their daughter Ayisha. This witness has also stated that about her marital life, her daughter was not revealing anything before her but she might have revealed the same in front of her sister.
11. PW-3 Rahmath Banu, the younger sister of the deceased has stated that she is aware of the details of the marriage negotiations which took place at the house of PW-4. As per the marriage negotiations, `1 lakh in Cash and 35 pawans of gold was agreed to be given. Marriage engagement was also celebrated and thereafter her father has given a cash of `1 lakh in the hands of accused Nos.1 and 4 and 35 Pawans of gold were also given at the time of marriage.
The witnesses has further stated that her brother- in-law i.e., accused No.1 was working in Saudi and returned to Saudi one month after the marriage with the deceased. Thereafter he was coming to India once in a year and at that time, both husband and wife were visiting their house also. On one such occasion, while going back, he had demanded money with her father through his wife and her father had given them the money as demanded. The witness has also stated that accused No.4 mother-in-law of the deceased was asking that all the money that would be sent by accused No.1 to the local Bank, where the accused was residing has to be given in her hand by the deceased otherwise she had to attend the entire domestic work. The deceased was daily calling upon her (PW-3) over phone and they were talking to each other. Since two years prior to death of the deceased she suffered a lot in the house of her husband. The details of which also were being shared with her over phone. The witness also stated that accused No.1, the husband of the deceased had assaulted the deceased once, due to which, the deceased had sustained injury and had shown those injuries to her. The deceased was suffering cruelty in her in-laws house in connection with dowry. In that connection several incidents had taken place. Since two years prior to the death, on one such occasion, her mother-in-law (appellant No.4) had threatened her of throwing chilli powder on the face of the deceased.
The witness has also stated that the deceased was not sharing these details with her parents. However, she was sharing these details with her as well as to her another sister i.e., CW-5. About the incident, the witness has stated that on 25th night at about 9.00 p.m., the deceased called her stating that her husband is taking her to his brother’s house on the next day and they would be coming to the house of these people. However, they did not visit the house of these people. These people were waiting for their arrival, but they received a telephone call after some time by one Mr. Rehaman who asked them to go to Uppinangadi immediately. Accordingly, she joined her parents and brother-in-law and came to Uppinangadi and thereafter they went to Government Hospital Uppinangadi where they saw the dead body of the deceased sister Ayisha. These people went to the Police Station where the Police took the signature of her father on a pre-prepared document. The witness has further stated that when she saw the dead body of her sister at a later stage, she noticed the presence of injuries on the face and head of the deceased, she was convinced that her sister was murdered.
12. PW-4 – Smt.Nebisa, is the maternal aunt of the deceased. In her evidence, she has stated that the marriage engagement of the deceased along with accused No.1 was performed in her house at Uppinangady about one year prior to the marriage. In that regard, during the course of marriage negotiation, it was decided to give `1 lakh to accused No.1 and a gold of 35 pawans. In her house only, PW-1 gave a sum of `1 lakh into the hands of accused No.4. It is a week thereafter, the marriage between the deceased and accused No.1 was performed. At the time of marriage, golden ornaments weighing 35 pawans were given. After leading one month’s marital life, accused No.1 left for abroad for his avocation.
The witness has further stated that two years after the marriage, the mother-in-law and sisters-in-law of the deceased were asking her to get money from her parents’ house, which fact was being told to her by the deceased herself over the phone. It has come to her notice that PW-1 has given `10,000/- and `15,000/- on one or two occasions in the hands of the deceased. The witness has also stated that some autorickshaw person of Uppinangady came to her and told that her niece was drowned in the water by killing her. She went to the hospital and saw the injured dead body. She also noticed the ornaments on the dead body.
13. PW-5 – Ashraf N.A., the son of PW-3 and cousin brother of the deceased, in his evidence has stated that on the date of the incident, after coming to know through his friend over the phone about the death of the deceased, he went to Nalayidagundi and saw the dead body. He has stated that fifteen days prior to her death, the deceased had been to his house and at his enquiry, she had told him that she is being subjected to harassment by the sisters of her husband and that they were also demanding money from her. Earlier to that also, on couple of occasions, she had stated the same thing to him over the phone. The witness also stated that the scene of offence panchanama and sketch of the place of offence were drawn in his presence, which he has identified at Exs.P-4 and P-5 respectively.
14. PW-6 – Askar Ali, though was projected by the prosecution as the witness in whose presence the inquest panchanama as per Ex.P-6 was drawn in the matter, but has not supported the case of the prosecution. Even after treating him as hostile, the prosecution could not get any support from him.
15. PW-7 – Dr.Sureshkumar Shetty, Head of the Department of Forensic Science Laboratory at Kasturba Medical College, Mangaluru, has stated that he has examined the samples of viscera sent to him by the Investigating Officer for their chemical examination. After examining them, he did not find any diseases or injuries in them. Accordingly, he has issued his report as per Ex.P-7.
16. PW-8 – Sri Govindaraj Dasari, then Police Sub- Inspector of respondent-police station, has stated that after taking further investigation in this matter from CW-29, he recorded the statements of PWs.3 to 5, CWs.4, 5 and 11. He also collected the viscera from the doctor who conducted the autopsy and through the office of Addl.Superintendent of Police at Puttur, he sent the same to Regional Forensic Science Laboratory at Mangaluru, for their chemical examination. He also collected post-mortem examination report as per Ex.P-8 and handed over further investigation to CW-31.
He further stated that, as per the instructions of CW-31, he traced and apprehended accused No.1 on 18.11.2011 near State Bank Bus Stand at Mangaluru and produced him before CW-33 on 19.11.2011 at 00.30 hours in the police station.
17. PW-9 –Sri Monu, who is the neighbour of PW-1, in his evidence has stated that he had also participated in the marriage negotiations of deceased Avvamma @ Ayisha, which took place in the house of PW-4 at Uppinangady. In the said negotiation, it was decided to give a sum of `1 lakh as dowry and 35 pawans of gold. It was in his presence, about a week prior to the date of marriage, PW-1 gave a sum of `1 lakh in the hands of accused No.4 and at the time of marriage, golden ornaments were put on the bride. After the marriage, accused No.1 returned to abroad for his employment. However, the deceased whenever visiting her maternal home, was also visiting his house, at which time, she was telling to him that she had difficulty in her marital home, that she is being subjected to harassment and her mother-in-law and sister-in-law were pestering her to get money from her parents house. At that time, he was advising her and also assuring that he would recommend her father to give some money. On one such occasion, PW-1 had told him that he had given `70,000/- to his daughter.
The witness has further stated that after coming to know that Avvamma was dead, he saw her dead body in the hospital at Uppinangady. He noticed the injuries on her head. He has stated that Avvamma was not a girl of committing suicide. He suspected that the accused must have done something to her.
18. PW-10 – Sri Jakaria K., has stated that about half a KM. away from his house, there is a small stream flowing through the Nalayidagundi and joining Netravati river. He knows accused No.2, whose house is in Nalayidagundi. He knows the deceased and her husband also. The witness has stated that on the date of the incident, after coming to know about the death of Avvamma, they found her dead body in the water of the stream and joined by others, including Murali, Mahalinga and Abdulla, they lifted the dead body of Avvamma. At that point of time, accused No.1 was not in that place. The witness has also stated that the police drew a panchanama of the spot of the offence as per Ex.P-4, for which, he has put his signature.
19. PW-11 – Haneef, has stated that the Tahsildar has conducted the inquest panchanama on the dead body of Avvamma @ Ayisha in the Government Hospital at Puttur, as per Ex.P-6 in his presence.
20. PW-12 – Rahiman, has stated that the police drew a panchanama where the dead body was found as per Ex.P-4, in his presence. They also drew a sketch as per Ex.P-5.
21. PW-13 – Sri Muralidhar and PW-14 – Sri Santhosh, though were projected as witnesses for the alleged recovery of the stone at MO-1 at the instance of the accused, have not supported the case of the prosecution. Even after treating them hostile, the prosecution could not get any support from them.
22. PW-15 – Sri K.S.Babu, then Assistant Sub- Inspector of Police of respondent-police station in his evidence has stated that on 26.7.2011, while he was the Station House Officer, PW-1 appeared before him at 11.30 a.m. and lodged a pre-prepared complaint as per Ex.P-1. After registering the same, he prepared the first information report as per Ex.P-11 and submitted to the Court. He also stated that thereafter, he visited the scene of offence which was a place called Nalayidagundi and noticed the dead body of the deceased which was already brought out from the stream by the localities. He made arrangements for the transportation of the said body to the Government Hospital, Puttur. He also requested the Taluka Executive Magistrate to conduct the post-mortem examination on the dead body. After which, he got the autopsy done by the doctors and later on handed over the dead body to the relatives of the deceased.
The witness has further stated that on 27.7.2011, along with his staff, he visited the place of the incident and drew a scene of offence panchanama as per Ex.P-4 and prepared a sketch as per Ex.P-5. He also drew a panchanama with respect to the house at Perne, where the deceased was residing along with her husband at the relevant point of time.
23. PW-16– Mr.M.Prabhakar, then Addl.
Superintendent of Police of Dakshina Kannada, has stated that after he taking up further investigation in this matter, he recorded the re-statements of PWs.2, 3, 4, 5 and CW-5. He also recorded the statements of CWs.4, 6 and PW-9 and handed over further investigation to CW-33.
24. PW-17 – Dr.Shwetha, then Medical Officer of the Government Hospital at Puttur, has stated that at the request of the police, she has conducted post- mortem examination on the dead body of Avvamma @ Ayisha in this case on 26.7.2011. She has given a detailed account of the injuries said to have been found by her during the course of autopsy on the dead body. The doctor has opined that after her post-mortem examination upon the dead body and the report from the Forensic Science Laboratory, which was placed before her as per Ex.P-9, she has opined that the cause of death of the deceased was due to the head injuries sustained by the deceased, in which regard, she had issued a report as per Ex.P-8. The witness has also stated that after examining the stone at MO-1 shown to her by the police, she has opined that the injuries found on the deceased are possible to be caused with the stone like MO-1.
The witness also stated that, in case if a person accidentally falls in the water, the fallen person would intake the water in which he has fallen, in which case, there will be some storage of water in his lungs, as well in his stomach, at least, of about half a litre, whereas, such symptom was not noticed in the deceased. She also stated that in case if a dead person is thrown in the water, then, the water won’t enter inside the body of the dead person.
She was subjected to a detailed cross-examination from the accused side, wherein she adhered to her original version.
25. PW-18 – Sri H.Y.Jagadish, then Circle Police Inspector of the respondent-police station, has stated that, after he took up further investigation in this matter, he collected the Pathological report as per Ex.P-7 and also the final opinion as to the cause of the death as given by the doctor, which he has seen at Ex.P-8. He also stated that, he recorded further statement of PW-1 and based upon which, he requested the Court to incorporate Section 304-B of IPC also in the crime.
26. PW-19– Sri.M.B.Nagaraju, has stated that while he was working for a short duration as Deputy Superintendent of Police of Puttur, he took up further investigation in this matter from PW-11. On 18.11.2011, based on the credible information received by him, his staff traced and secured accused No.1 and produced before him on the same night. He arrested accused No.1 and recorded his voluntary statement. The witness has stated that accused No.1 stated before him that in case if he is accompanied, he will show to them the place of commission of offence and also the stone used by him in the commission of the crime. The said portion of the voluntary statement was marked at Ex.P-15.
The witness has further stated that on 19.11.2011, summoning PWs-13 and 14 to be the panchas, he joined by those panchans, followed accused No.1, who took them to the place called Nalayidagundi and shown them a stone which was fallen in coconut-cum-arecanut garden. The stone was seized by him by drawing a panchanama as per Ex.P-10. The witness has identified the said stone at MO-1.
The witness further stated that he sent the said stone at MO-1 to the doctor who conducted the autopsy for his opinion. After obtaining the opinion from the doctor and concluding the investigation, he has filed the charge sheet against the accused.
27. In the light of the above evidence of the parties, it was the argument of learned counsel for the appellant/complainant in Criminal Appeal No.1003/2013 that PW-3, who is the younger sister of the deceased, PW-5 and PW-9, as well the parents of the deceased, who are PW-1 and PW-2, all have spoken about the demand and acceptance of dowry by the accused. Learned counsel further submitted that PW-3 and PW-5 have also spoken about the cruelty meted out to the deceased by the accused. As such, there are all the evidence to prove the alleged offences punishable under Sections 3 and 4 of D.P.Act, as well under Section 498-A of IPC. However, the learned counsel submitted that she would not press on the point of convicting accused Nos.2 to 4 for the offences punishable under Sections 302 and 201 of IPC for the lack of cogent evidence.
28. Learned counsel for the appellant /accused No.1 in Criminal Appeal No.1027/2013, submitted that the entire case of the prosecution is based on circumstantial evidence. Initially, the first information report was registered for an offence punishable under Section 306 of IPC only. However, all other alleged offences were incorporated in the matter stage by stage in due course. He further submitted that the evidence of prosecution witnesses does not make out a case that there was any demand for dowry and the payment of dowry to any of the accused. He also submitted that none of the prosecution witnesses have given any instances of alleged cruelty said to have been meted to the deceased. On the contrary, PW-4 has stated that after the husband of the deceased returned to Saudi Arabia in pursuit of his employment, the deceased was living with her parents, as such, the question of accused Nos.2 to 4 subjecting her to cruelty would not arise.
Learned counsel further submitted that even against accused No.1 also, there are no materials to show that at any point of time, he was subjecting his wife i.e., the deceased, to cruelty. With respect to the death of the deceased, the learned counsel submitted that prosecution could not able to establish that the death of the deceased was homicidal and also it is a murder and that the said murder is committed by none else than accused No.1.
Learned counsel further submitted that since the prosecution case is based on circumstantial evidence, all the links in the chain, in particular, continuity has to be proved by the prosecution, however, it has failed to prove the chain of events. The trial Court has assumed many aspects on its own and filled the lacuna by its own which has led into an erroneous judgment.
29. Learned State Public Prosecutor-II in his arguments both as an appellant in Criminal Appeal No.228/2014 and as respondent-State in the other two appeals i.e., Criminal Appeal No.1003/2013 and Criminal Appeal No.1027/2013, submitted that as against accused Nos.2 to 4 with respect to the offences punishable under Sections 302 and 201 of IPC, there are no materials. He further submitted that with respect to Section 498-A of IPC, it is only PW-5 who has stated that the husband has assaulted the deceased.
Learned State Public Prosecution has further submitted that with respect to Sections 3 and 4 of D.P.Act, the question of demand by any of the accused is not forthcoming, except PW-1, stating that since there was demand, he has given gold, otherwise, he would have given a lesser quantum of it. Learned State Public Prosecutor also submitted that, PW-1 also has not stated as to how much of short quantity of gold he would have given to the accused had they not asked for gold at a specific quantity.
Similarly, learned State Public Prosecutor further submitted that PW-9 has also for the first time spoken about payment of `70,000/-, about which, PW-1 has not stated. He reiterated that there is no evidence of cruelty attracting Section 498-A of IPC.
30. With respect to accused No.1, learned State Public Prosecutor submitted that whenever accused No.1 used to come to India, was subjecting the deceased to harassment by demanding money and the same has been revealed to the members in the family by the deceased. In fact, PW-1 has also stated that on one such occasion, accused No.1 had made a demand of gold and money through his wife i.e., the deceased.
31. It is not in dispute that deceased Avvamma @ Ayisha was married to accused No.1 in the month of October 2007 and that after her marriage, she went to her husband’s house which was a village called Perne and was staying there. It is also not in dispute that the said Avvamma @ Ayisha met with an unnatural death on 26.7.2011, at about 7.30 a.m. The evidence of all the prosecution witnesses in this regard has not been denied or disputed from the accused side. According to the prosecution, the very first information regarding the death of the deceased Avvamma @ Ayisha was shown to be a suicidal since the father of the deceased in his first information given to the police has called it as a suicidal one or an accidental slip into the stream at Nalayidagundi which was the place of residence of accused No.2. Taking the said complaint as the base, the police have continued their investigation. After the registration of the first information report, the very first document that has come into existence is inquest panchanama as per Ex.P-6. PWs.6 and 11 are the two witnesses to the said inquest panchanama. Though PW-6 has turned hostile to the case of the prosecution, but, PW-11 has stated that the said inquest panchanama was drawn in his presence.
32. A perusal of the said inquest panchanama at Ex.P-6 goes to show that the said panchanama was drawn in the presence of panchas, whereunder, the statements of three persons were also recorded, one among them was accused No.3 – Kairunnisa. The panchas to the inquest panchanama have opined that the nature of death according to them was the deceased Avvamma @ Ayisha might have committed suicide due to the cruelty meted to her by the accused or she might have slipped into the stream accidentally or due to some other reasons. Thus, the initial opinion regarding the cause of death of the deceased was either suicidal or accidental. The respondent-police during the course of investigation have incorporated Section 304-B of IPC based upon the further statement by the complainant on 23.10.2011. Noticing the fact that within seven years of her marriage, the deceased has met with an unnatural death and the parents of the deceased have also given the statement that the deceased was subjected to cruelty in connection with demand for dowry and other valuables, the police also included Section 304-B of IPC. However, while concluding the investigation and filing of the charge sheet, they also incorporated Section 302 of IPC.
33. After the inquest panchanama, the dead body of the deceased was subjected for post-mortem examination. PW-17, the doctor has conducted the post-mortem examination on the dead body of the deceased. According to the said doctor, the deceased had sustained the following injuries :
1. Just above left eyebrow 1½ x 1 cm. lacerated wound present.
2. right upper eyelid deep lacerated wound 1 x 1 cm present.
3. Right forehead crush injury present 4. right frontal region 2” deep lacerated wound present.
5. 6 x 3 cm. deep lacerated wound in the center of the occipital region.
6. right shoulder contusion present ¼ measurement 7. right side of the neck contusion present – ½” measuring.
On dissection of the body, the doctor has noticed fracture of base of skull on right frontal area and occipital region with subdural and sub-arachnoids hemorrhage at the fractured site.
The doctor also noticed collection of 200 ml. of fluid in the stomach. All other internal organs were found intact. The doctor collected the viscera in the form of contents in the stomach and parts of liver, spleen and kidney and they were sent for chemical examination through the respondent-police.
34. PW-7 – the doctor has conducted the chemical examination of the viscera collected in this case and has given his report as per Ex.P-7, stating that there was no defect found in the viscera examined by him. It is thereafter, PW-17, the doctor, has given her final opinion with regard to the death of the deceased as due to the head injury sustained. Therefore, according to the doctor, the cause for death was due to head injury. However, the evidence of the doctor as PW-17 would not by itself lead us to any conclusion as to whether the death of the deceased was homicidal. It could only show at this stage that the death was unnatural. However, to further analyse as to the nature of the death, the evidence of the prosecution witnesses, including the doctor, is required to be analysed in detail.
35. PW-1 in his evidence has stated that his daughter Avvamma @ Ayisha was killed. Except stating that his daughter was killed, he has not stated as to with what reasons he has come to such an opinion. As such, the evidence of PW-1 with regard to the nature of the death would be only an opinion not supported by any cogent evidence in that regard.
36. PW-2 who is the mother of the deceased has clearly in an unequivocal terms stated that she does not know as to what happened to her daughter. Though she has stated that her daughter Avvamma @ Ayisha is dead, but, no where in her evidence she has stated as to how her daughter died.
It is only PW-3 among the prosecution witnesses examined, who for the first time has given a little bit detailed account with regard the death of her sister Avvamma @ Ayisha. The said witness who admittedly is the younger sister of the deceased though has given a detailed account about the marital life of the deceased and stated that during her life time, the deceased was constantly being subjected to cruelty from the accused side and that the accused had also demanded and accepted the dowry at the time of the marriage, but, about the death of her sister, she after perusing the injuries said to have been noticed by her upon the body of the deceased, has stated that she came to know that the death of her sister was a murder. Even the said witness also has not stated as to on what reasons she is terming the death of her sister as a murder. Merely because the deceased was alleged to have been subjected to cruelty by the accused prior to her death and by the said alleged cruelty meted to her sister, by that itself, PW-3 has concluded that the death of the deceased was a murder. It is the only inference that can be drawn after going through the evidence of PW-3 on the point of nature of death of her sister.
37. PW-6 and PW-11, the panchas for the inquest panchanama, as already observed above, except stating about drawing of inquest panchanama, have not whispered anything about the nature of the death. Thus, it is only the circumstance of the death of the deceased and the injuries found on her and the medical evidence which can lead us to a conclusion about the nature of death of the deceased.
38. As observed above, PW-17, the doctor is the main witness whose evidence would be of some importance to ascertain the nature of the death of the deceased. According to the said doctor, the injured had sustained seven injuries, majority of them were lacerated injuries. Those injuries which are mentioned above were found both on the face and on the backside of the head of the deceased and they were in the form of lacerated injuries, as well a crush injury. According to the doctor, the stomach of the deceased had contained about 200 ml. of fluid and there was no collection of water. Admittedly, the dead body of the deceased was traced in a stream in a place called Nalayidagundi, that too, not exactly in the place where the deceased is said to have been found missing at the last time, but, at some distance from the said place. In such a situation, if the death were to be suicidal or accidental, what could have been the symptom expected to be found on the dead body is a point to be looked into.
In that regard, it is once again the evidence of PW-17 – the doctor which requires to be considered. The said witness in her examination-in-chief itself has stated that in case if a person accidentally falls in the water and dies, definitely he will intake some water in which he has fallen and the said water will be stored in his lungs and the stomach, and at least, half a litre of water will be found as a collected water in the stomach and lungs region of the deceased in those cases. According to PW-17, no such collection of water was found in the lungs or stomach region of Avvamma @ Ayisha.
PW-17 also has stated that if the dead body is thrown in the water, then there will be no intake of the water by the dead body, as such, there will be no collection of water in the internal organs of the deceased. In the cross-examination of PW-17, an attempt was made to show that the deceased might have sustained injuries and then fallen into the water or might have accidentally skid into the water and while falling in the water, due to skid, she might have lost her breath. However, the doctor has specifically stated that in case if a person accidentally falls, then, the injuries that would be caused would be on the front side of the head, but, there is no possibility of the injury occurring on the backside of the head. She also stated that, in such an event, the body which comes in contact with the portion of the earth would not sustain a lacerated wound, but, an incise wound may be caused.
The witness further stated that, in case if a person all of a sudden falls in the water and dies, in such a case, there will be no question of water entering into his body, however, since he falls in the water immediately after the alleged injury, then at least, some quantity of water should necessarily go inside the body of the deceased. In her cross-examination, PW-17 has denied a suggestion made to her specifically that all the injuries found upon the deceased, which are described in Ex.P-8, are not possible to be caused to a person at a time when he falls on stone or boulders. Thus, in her cross-examination, the doctor has ruled out any possibility of the deceased having accidentally fallen into the water or committing suicide. However, though not expressly stated that it is a homicidal death, but, shown that based upon other evidences, the death can also be led to term it as a homicidal one.
39. In the light of the above evidence, when we see the scene of offence panchanama at Ex.P-4, which is said to be the place where the deceased is said to have come in contact with water either by falling or in any other manner, the said place of offence shows that in the said stream running from North to South direction, towards Uppinangady, there was much flow of water since it was a rainy season. It is also shown that there were large number of boulders in the said stream and there was current in the flow of the water. The sketch in that direction is also shown to have been prepared by the Investigating Officer which is at Ex.P-5, but, the said sketch would be of no avail since except showing the direction of the stream, it does not show about the presence of any other things there, including the boulders. Thus, according to Ex.P-4, the stream was not just with water, but, it had also a good number of boulders in it.
40. From the assessment of the place of offence, though prima facie it may give an impression that there was possibility of a person coming in contact with the boulders inside the water even during accidental fall or suicidal jump into the water, but, the evidence of PW-17 eradicates the said suspicion since PW-17 has made it clear that, in such an event, the simultaneous occurrence of the injury both on the front and backside of the forehead of the injured is not possible.
41. In the instant case, as observed above, the injured has sustained lacerated wound near both eyebrows and crush injury on the forehead. She had also noticed that the deceased was found with an injury on the backside of the head in the form of a lacerated wound measuring 6 x 3 cm. Thus, on the front side of the forehead and on the backside of the head, two similar injuries in the form of lacerated wounds were found. This has led to a suspicion that had it been an accidental fall, how come an injured can sustain injury both on the front side of the forehead, as well on the back side of the head, which according to the doctor, is not possible.
Secondly and most importantly, the medical evidence of the doctor that in case of a suicide of a person by drowning himself or accidental fall into the water, there must be at least some quantity of intake of the water, which is absent in the case on hand. Neither in the lungs nor in the stomach portion, there was any collection of the water, which according to the doctor, was a must in case if it were to be an accidental death of a person.
42. On the other hand, even according to the doctor, when a person is assaulted, killed and immediately thrown into the water, in that case, there will not be any possibility of any external water entering into the body of the deceased. In the instant case, admittedly there was no collection of water found in the internal organs, more particularly, the lungs and stomach portion of the deceased. Therefore, even though suggestions were made to PW-17 to the effect that there is a possibility of a person while falling into the stream accidentally resulting in his last breath before touching water, but, it is only hypothetical circumstance. The circumstances of the case would not give any reason to believe that, that possibility might have caused in the instant case, rather, the only conclusion that can come into by looking at the injury found on the deceased and the evidence of PW-17 is that the death of the deceased was homicidal.
43. The next question would be whether the death was a murder and committed by the accused in the case.
In view of the fact that both the learned counsel for the appellants in Criminal Appeal No.1003/2013 and Criminal Appeal No.228/2014 themselves have fairly conceded that there are no evidences against accused Nos.2, 3 and 4 to attract Sections 302 and 201 of IPC, any search to be made for availability of evidence against accused Nos.2, 3 and 4 for the offences punishable under Sections 302 and 201 of IPC would be a futile exercise. Despite the same, if we take a re-look at the evidence of the prosecution witnesses as already observed above, PWs.1 and 2 being the parents of the deceased and PW-3 being the younger sister of the deceased, no where have made any specific allegation against accused Nos.2, 3 and 4 that they have caused the death of the deceased Avvamma @ Ayisha. In fact, as already observed above, the mother of the deceased herself has stated that she does not know as to how her daughter died. On the other hand, though PW-1 has stated that his daughter was killed, but, neither he has stated that it was a murder and if so, committed by whom. The evidence of PW-3 would also be of lot of improvements as that of PW-1 since PW-3 has only stated that she came to know the death of her sister as that of a murder. In the said circumstances, we are of the view that learned counsels for the appellants in Criminal Appeal No.1003/2013 and Criminal Appeal No.228/2014 were right in fairly conceding that there are no evidence to attract Sections 302 and 201 of IPC as against accused Nos.2, 3 and 4.
44. As against accused No.1 who is convicted by the trial Court for the offences punishable under Sections 302 and 201 of IPC is concerned, the evidence available is once again of PWs.1, 2 and 3 on the one hand and the entire circumstances of the case as placed by the prosecution on the other side. At the cost of repetition, it has to be once again reiterated that none of the witnesses among PWs.1, 2 and 3 have any where stated that they were suspecting fowl played by accused No.1 in the death of the deceased Avvamma @ Ayisha. However, the evidence of those witnesses is there to the effect that all was not well in the marital life of the deceased Avvamma and that she was complaining about she being subjected to harassment prior to her death. PWs.1 and 2 have not thrown much light upon it, but, PW-3 has attempted to give some detailed account with regard to the same.
At this stage, assuming for a moment that the deceased was subjected to such harassment in her matrimonial home by any of the accused, still whether the same would lead accused No.1 to commit the murder of his wife i.e., Avvamma @ Ayisha, is a question to be considered. In that regard, the evidence of any other witnesses, including PW-4 and PW-9 would be of no avail to the prosecution. Even PWs.4 and 9 who claims to be the relatives of the deceased and also the persons known to the family of the deceased also have not stated anything about the overact or role of accused No.1 in the death of the deceased Avvamma @ Ayisha.
45. Admittedly, the instant case is a case based on circumstantial evidence, as such, there are no eye witnesses to the incident. It is based on the evidence of the prosecution witnesses and looking at the other facts and circumstances of the case, the Court has to arrive at a conclusion whether the prosecution could able to prove beyond reasonable doubt that the homicidal death of Avvamma @ Ayisha was a murder and committed by none else than accused No.1 and accused No.1 alone.
46. PW-1 though has spoken about the alleged demand of dowry and acceptable of dowry, but, about the death of his daughter and particularly the alleged role of accused No.1, his evidence is silent and throws no light on the point. The evidence of PW-2, the mother of the deceased, is in no way different than that of PW-1 and who has clearly expressed her ignorance about how her daughter died. On the contrary, she has gone to the extent of telling that till the death of her daughter, she did not even came to know that her daughter had any problem or difficulty in her matrimonial home. It is only PW-3 who for the first time has stated that her sister was not being maintained well in her matrimonial home and she was subjected to harassment by her husband and the family. She has stated that her sister was regularly contacting her over the phone and narrating about the cruelty for which she was subjected to in her matrimonial home of the accused.
The witness has also stated that whenever she used to meet her when she had been to her parents’ home, at that time, deceased was revealing the details of those cruelty meted to her by her husband and his family. Couple of such instances the witness has attempted to explain stating that, on one such occasion, the deceased was even assaulted by her husband, which assault mark the deceased sister had shown to her and on the second occasion, the mother-in-law of the deceased i.e., accused No.4, had threatened the deceased of throwing chilli in case she does not oblige her words. However, even after taking those instances as a fact, still whether those two facts would suffice in holding that the accused has caused the death of the deceased. When asked by ourselves, our answer would be definitely in the negative. Taking a stray instance or couple of instances of alleged harassment at matrimonial home, it is not correct to give a link to the homicidal death of the said lady to the alleged incident and to hold the alleged suspected person as guilty for committing the murder.
47. The evidence of PW-4, who is the maternal aunt of the deceased would not add to the prosecution case about proving the guilt against accused No.1 for the offence punishable under Section 302 of IPC. The entire evidence of PW-4 is mainly with respect to the period prior to the marriage of the deceased with the accused and some duration after the marriage of the deceased with the accused No.1. At the best, even the evidence of PW-4 is taken on its facial value and in its entirety, it will only lead us to the conclusion that the accused had demanded for dowry prior to the marriage and even after the marriage of the deceased with accused No.1, she did not able to lead a happy marital life, but, was subjected to some harassment in her matrimonial home. Once again we have to say that even after taking that the deceased was quite enjoying a happy marital life, but, that itself would not lead any one to conclude that the accused had caused the murder of the deceased. Thus, the important link in the chain of events to establish the case of the prosecution is shown to be not proved by the prosecution.
48. The other circumstance upon which the prosecution relies upon is alleged last seen theory of accused No.1 in the company of the deceased. Admittedly, none of the prosecution witnesses have in express terms stated that accused No.1 and accused No.1 alone was found lastly in the company of the deceased. The only evidence that has come out in the evidence of prosecution witnesses, more particularly of PW-3 and PW-9, is that, as on the date of the alleged incident, the deceased and the accused No.1 along with their child had been to the house of accused No.2 at Nalayidagundi. The reason for the accused No.1 and the deceased going to the house of accused No.2 on the date of the incident has come out in the evidence of PW-5 himself who is the cousin brother of the deceased and who claims to have been in closeness with the deceased and sharing her good and bads. The said witness himself has stated that the family of accused No.2 had sold their house at Nalayidagundi and they were vacating the said house, as such, they had arranged for a party. The said explanation given by none else than PW-5 would give the reason as to why accused no.1 who was expected to take his wife to his brother’s house on the said day, changed his decision at the last moment and took his wife to his sister’s house. However, it is not in dispute that as on the date of the incident, the accused No.1 and the deceased were there in the house of accused No.2 at Nalayidagundi, in which place, the alleged incident also has taken place.
49. According to the prosecution, the alleged incident has taken place in a stream which is said to be near the house of accused No.2 at Nalayidagundi village. The only panchanama which speaks about the alleged place is Ex.P-4. The said document when perused would go to show that the said stream was at a distance of 75 mtrs. from the house of accused No.2. Even after accepting that accused No.1 and deceased were in the house of accused No.2 at Nalayidagundi in the morning of the alleged date of incident and were seen together, but, there is no evidence to the effect that at the place of the alleged incident, both accused No.1 and deceased were found together. The prosecution has not placed any evidence on record to show that accused No.1 and the deceased went together either to the Coconut-cum-
Arecanut garden or towards the stream. No such statement can also be found either in the complaint or even in the inquest panchanama. The inquest panchanama at Ex.P-6 also mentions about who has seen the deceased lastly alive. It is mentioned that the sister of accused No.1 i.e., accused No.2 Smt.Mariamma, is the one who has seen the deceased lastly in her house. Therefore, in the absence of any such material to show that the accused were lastly found in the company of the deceased near the alleged place of incident, it cannot be taken that the accused No.1 has committed the alleged act merely because he is said to have taken the deceased to the house of accused No.2 on the previous day. For this matter, the statement given by accused No.1 under Section 313 of Code of Criminal Procedure, to the effect that he was sitting outside the house of his sister Mariamma in the morning of that day and that his wife alone went towards the stream, also cannot be ignored. Thus, one more link in the chain of the events is not properly been linked with the main chain and the prosecution has failed in that aspect.
50. The last link in the chain of event which the prosecution has placed before the Court in order to prove the alleged guilt against the accused is the alleged recovery of the stone at MO-1 at the instance of accused No.1. According to the prosecution, after the arrest of accused No.1, he gave voluntary statement before the Investigating Officer i.e., PW-19 as per Ex.P-15, wherein the accused is shown to have stated that if he is accompanied, he would show the place of murder, as well the stone said to have been used in the commission of the crime. Accordingly, the said Investigating Officer is said to have summoned two panchas i.e., PWs.13 and 14 and the accused is shown to have taken them to a place which is in the Nalayidagundi itself, in a Coconut- cum-Arecanut garden and said to have produced a stone stating that it was the stone used by him in the commission of the crime. However, to believe the said version of the prosecution, the evidence of panchas who were said to be the witnesses to the alleged recovery is to be considered.
51. As already observed above, it was PWs.13 and 14, who were shown as the witnesses to the alleged panchanama at Ex.P-10 and stone at MO-1 is said to have been recovered at the instance of accused No.1. Both the witnesses have turned hostile to the prosecution and have not at all supported the case of the prosecution. Both have stated that they don’t remember of having seen accused No.1 earlier and that they have not been taken to any place by anybody, much less, by the accused. On the other hand, PW-13 has stated that on one fine day, when he was going on a road in Nalayidagundi, near Maruva, the police met him and took his signature on a document. Without knowing anything what that document was and since the police have asked him, he has put his signature to the said document.
Similarly, PW-14, the other pancha has also stated that while he was coming near a place called Artila near Nalayidagundi, the police took his signature on a document stating that same was in connection with death of a lady, except that, he does not know anything.
52. Thus, both these witnesses have shown their back to the prosecution and the attempt made by the prosecution to elicit favourable statements from them by subjecting them to cross-examination after treating them as hostile also did not yield any positive result in favour of the prosecution. Apart from this, there are no other witnesses who could have identified either the said place of alleged offence or the stone at MO-1. Therefore, when the entire case of the prosecution is fully based upon circumstantial evidence and when each of the link of the prosecution case/chain is required to be proved leaving no scope for doubt, the very important link in the chain i.e., alleged recovery of the weapon/stone in the instant case itself has fallen short of required proof, as such, the prosecution has utterly failed to prove that the stone at MO-1 was recovered at the instance of accused No.1. Therefore, when the alleged recovery of the alleged stone which is alleged to have been used in the commission of crime itself has not been proved by the prosecution, the subsequent opinion of the doctor i.e., PW-17 with respect to MO-1 in relation to the injury found on the person of the deceased would not take the case of the prosecution any further in the direction of its desired end. Therefore, even though the opinion of PW-17 that the injuries found on the deceased are possible to be caused if a person is assaulted with MO-1, still in the absence of any evidence that the MO-1 was in any manner recovered at the instance of the accused No.1 would not give any weightage to the said opinion of the doctor.
53. In addition to the above, the another matter which also cannot be ignored is also with respect to the alleged stone at MO-1. It is nobody’s case that the said MO-1 had any blood stains upon it. None of the witnesses, including the Investigating Officer have whispered anything in that regard, it means, the stone at MO-1 was not stained with blood. Had really MO-1 being used in the commission of the crime, that too, particularly in the present circumstances of the case when the deceased is said to have been inflicted with simple injuries of not less than seven in number, which according to PW-17 are possible to be caused when a person is assaulted with MO-1, then, definitely the MO-1 should have some stain of blood upon it. The injuries were not mere contusions, but, many of them are lacerated of considerable measurement and couple of the injuries are in the nature of fracture of skull bone. One such injury also includes a crush injury on the facial aspect of the deceased. That being the case, had those simple injuries being really inflicted by making use of MO-1, then, absolutely it must have some blood stains upon it. Further, the said stone at MO-1 has not been subjected to any scientific examination also. It is also not known for what reason the Investigating Officer did not sent the said stone for any scientific examination, including sending it for Forensic Science Laboratory for its examination. Thus, the alleged recovery of the stone at MO-1 and its alleged use in the commission of crime also could not be proved by the prosecution. Thus, the last link in the chain of events also could not be established by the prosecution.
54. At this juncture, it is also equally important to make an observation with respect to the exact place of alleged commission of the crime. If according to the prosecution, the accused is/are said to have caused the death of the deceased Ayisha at a particular place, may be in Coconut-cum-Arecanut garden and then shifted her body to the stream and thrown into said stream, then, the place of the offence of the murder would be not the place shown in Ex.P-4, which is stream, but, it would be a different place. Thus, a doubt arises in view of the fact that in the panchanama at Ex.P-10, which is a recovery panchanama, as well a panchanama towards the spot of the offence alleged to have been shown by accused No.1, the place of offence is shown as a Coconut-cum-Arecanut garden in Nalayidagundi, near the house of accused No.2. Interestingly, any suggestion with respect to the accused showing the place of offence and that the place of actual offence of murder was a portion in the Coconut-cum-Arecanut garden, has not been suggested either to PW-13 or to PW-14 in their cross-examination.
Furthermore, no evidence has come out or no explanation has come out from the prosecution side as to how come the stone at MO-1 could easily be thrown in a place openly and it stayed for some time without any variation in it and also when nobody dealt with it, how come such a stone would remain in an open place for a long time without change in its position or marks. Thus, series of doubts have crept in the case of the prosecution regarding alleged recovery and the same also has remained unanswered. These rather than proving the case of the prosecution, thickens the cloud of suspicion in its case with respect to the act of the commission of the crime and act towards causing disappearance of evidence or screening the offenders.
However, the trial Court without appreciating the evidence and the materials placed before it in its proper perspective, has accepted the alleged recovery as proved and the alleged last seen theory also as established without noticing the major loopholes existing in them, which have been analysed and exposed herein above. Therefore, the finding of the trial Court holding that accused No.1 was found guilty of the commission of the murder of the deceased Avvamma @ Ayisha and that he has also caused the disappearance of the evidence by shifting the body to the stream and throwing it in the stream, remains not well reasoned, but, filled with great suspicion, the benefit of which should naturally go to the accused. Consequently, the finding of the trial Court holding accused No.1 guilty of the alleged offences punishable under Sections 302 and 201 of IPC deserves to be set aside.
55. The other major offence for which the accused were tried by the trial Court was for the offence punishable under Section 498-A of IPC. The important witnesses and the witnesses who have spoken about the alleged cruelty said to have been meted to the deceased by the accused are once again PW-1 and PW-2, the parents of the deceased, PW-3 – the younger sister of the deceased, PW-4 – the maternal aunt, PW-5 – the cousin brother of the deceased and PW-9 – the neighbour. As already observed above, PW-1 - the father, has no where stated that the post-marital life of his daughter was not well and she has been constantly subjected to cruelty by the accused. Though he has mentioned about accused No.1 collecting a sum of `25,000/- and `50,000/- by placing demand before him through his deceased wife, but, the said portion of his evidence is proved to be an improvement made by the witness. As such, it loses its validity.
So also, the another statement of the same witness that the accused had sold 35 pawans of gold given to his daughter and eaten away the money is also proved to be a material improvement made by him in the course of his evidence. On the other hand, the same witness in his examination-in-chief itself has stated that as seen by him, his daughter and accused No.1 were happily living and that he does not know their internal matters.
The evidence of PW-2, the mother of the deceased, also followed the pursuit of her husband in her examination-in-chief. In the opening paragraphs itself she has stated that her daughter was well in her matrimonial home for about two to three years. She has further stated in her examination-in-chief itself that her daughter has not revealed anything of her good and bads before her and that she might have stated the same before her sisters. In the cross-examination, she has proceeded one step further and clearly stated that she did not find any problem in the matrimonial home of her daughter for her living till she died. Stating so, she has given a go-bye chit to the case of the prosecution that the deceased was subjected to any type of cruelty in her matrimonial home.
56. It is only PW-3, the younger sister who at various places has attempted to show that her sister was not being taken care of well in her matrimonial home and that she was being harassed. No doubt, PW-
3 has repeatedly stated that her sister was being ill- treated or harassed in her matrimonial home and that the deceased was sharing those aspects with her, she has even stated that in the last two years prior to the death of her sister, several instances have taken place. Except stating that several such instances have taken place and that her sister was subjected to constant harassment, PW-3 has not ventured to disclose what those instances are or to explain or give details of any of those alleged incidents through which she came to know that her sister/deceased was subjected to cruelty or harassment in her matrimonial home. Though she has stated that on the second year of the return of accused No.1 from Saudi Arabia to his house, he had assaulted his sister and she had shown the injury mark in her house, even according to PW-3, the alleged cruelty and harassment were started from two years prior to the death of her sister. The alleged incident of alleged assault, even according to PW-3, not only a stray incident, but, also an old incident. A mere single stray incident of an assault said to have been occurred few years prior to the alleged incident of unnatural death of the deceased cannot be linked to the fact that deceased was subjected to cruelty or harassment in her matrimonial home till she lost her breath. Therefore, the evidence of PW-3 though at several places shows that her sister was subjected to cruelty, since is missing in giving the details with respect to any of those alleged incidents, the same can only be considered as a statement made regarding harassment without any proof of the same.
57. The other three witnesses who were spoken about the ill-treatment, as observed above, are PWs.4, 5 and 9. Admittedly, none of these persons are family members either of the deceased or of the accused. Even though PW-4 claims that she is the maternal aunt of the deceased, but, she too has stated that she came to know that the deceased was not being taken care of well in her husband’s house. She has stated that the deceased over phone has informed her on few occasions that her mother-in-law and sister-in-law were pestering her to get more money from her parents. However, even PW-4 also has failed to give any details with respect to any one of those alleged incidents. Merely because the deceased is said to have telephoned her over the phone and there being no details as to when the said telephone call was made, under what circumstances and what made the deceased to reveal voluntarily to PW-4, but not to her own parents, would all create a major doubt in the case of the prosecution. As such, the evidence of PW-4 would be of no help to the case of the prosecution on the point.
58. The evidence of PW-5 who is the cousin brother of the deceased and also the son of PW-4 no where states about what information the deceased had given to his mother i.e., PW-4. Even according to him, his knowledge about the alleged cruelty meted to the deceased is also through the alleged telephone call said to have been made by the deceased to him on one such occasion and based on another information said to have been given to him when he was said to have met the deceased in person. Even this witness has stated that when he enquired the deceased, she revealed before him that she was being harassed in her husband’s house and she was not being allowed to live a happy married life there. Except stating the above, PW-5 also could not able to give any further details as to why the deceased made such a statement and what was the alleged harassment for which she is claimed to have subjected. Therefore, the mere statement that the deceased has stated before him that she was not allowed to be well in her husband’s house cannot be concluded by holding that the deceased was being subjected to cruelty in her matrimonial home.
59. The last witness on this point is PW-9, who is said to be the neighbor to the house of PW-1 and well- wisher to the family of PW-1. Though he has stated that whenever the deceased used to visit her parents’ house, she used to come to his house and at that time, she had stated that accused used to pester her to get more money from her paternal home, the witness has not given any further details in that regard. A mere act of a person asking one of the family members to give some money would in the circumstances of the case whether results into a cruelty is a question, for which, the prosecution has placed no answers either in the form of evidence or in the course of arguments. As such, even after assuming that the accused have on one or two occasions might have asked the deceased to get some financial help from her parents would not by itself be considered as a cruelty meted to her from the accused side attracting Section 498-A of IPC. The trial Court after appreciating the evidence on this aspect since has rightly come to the conclusion holding that the prosecution has failed to prove the charges against the accused on the said count i.e., for the offence punishable under Section 498-A of IPC, we are not inclined to allow the contention of the appellants on this count taken in Criminal Appeal No.1003/2013 and Criminal Appeal No.228/2014.
60. The last count for which the accused were charged and tried by the trial Court is for the offences punishable under Sections 3 and 4 of D.P.Act. The trial Court has exonerated all the accused from the alleged charge of Sections 3 and 4 of D.P.Act. It is both the appellants in Criminal Appeal No.1003/2013, who are the parents of the deceased, as well the State in its appeal in Criminal Appeal No.228/2014, have challenged the said finding given by the trial Court. According to the prosecution case, prior to the marriage, during the marriage negotiation, the accused have demanded a dowry of a sum of `1 lakh and 35 pawans of gold and collected the same, as such, there is demand and acceptance of the dowry from the accused side. In order to prove the said charge against the accused, the prosecution has once again relied upon the evidence of PWs.1 to 5, 9 and 10.
61. As observed above, both PW-1 and PW-2, who are the parents of the deceased have stated that a cash of `1 lakh was given just prior to the marriage and a gold of 35 pawans were given to the deceased in the form of ornaments. The details of the same also these witnesses have given. PW-1 has stated in his examination-in-chief that one week prior to the marriage, a cash of `1 lakh to accused No.1 and 35 pawans of gold were given as demanded. In his cross-examination, though he admitted a suggestion that in their community, there is a custom of giving the ornaments to the bride at the time of marriage, but, he did not admit a suggestion as true that giving of 35 pawans of gold to his daughter is also as per the custom. On the other hand, he stated in clear terms that he giving 35 pawans of gold to his daughter was because of the demand made by the accused, otherwise, he would have given a lesser quantity of gold to her. By stating so, he has made it very clear that it is only on demand, he had given a cash of `1 lakh, as well the gold to an extent of 35 pawans.
62. PW-2, the mother of the deceased, has also stated on the very same lines as that of her husband with respect to the alleged demand and acceptance of dowry from the accused side. In her examination-in- chief, she has also stated that the cash of `1 lakh given to the accused was at their demand and the said cash was given in the hands of none else than accused No.4. She has stated that 35 pawans of gold were also given to her daughter/deceased in the form of ornaments. However, in her cross-examination, the witness has stated that giving of 35 pawans of gold to their daughter was at their own volitions and pleasure.
63. PW-3, the younger sister of the deceased has given a detailed account of the alleged demand and acceptance of dowry. Though admittedly she was not a party to the marriage negotiations, but, being the daughter of PWs.1 and 2 and younger sister of the deceased, she has shown that all the details of the alleged marriage negotiation were to her knowledge.
She has also stated the details as to where, when and how the marriage negotiation had taken place. Like PWs.1 and 2, she too has stated that marriage negotiation took place in the house of PW-4 and she knows the complete details of the marriage negotiation. According to the negotiation, it was agreed to give a cash of `1 lakh and 35 pawans of gold to the accused and accordingly, her father gave a cash of `1 lakh to accused No.1 and 35 pawans of gold were given to her sister in the form of ornaments. Even in her cross- examination also, she has reiterated her version as to the quantum of dowry and mode of its delivery. However, the said statement made by the witness repeatedly at more than one place has not been categorically or specifically denied in her further cross- examination from the accused side.
64. PW-4 – the maternal aunt of the deceased also stated that the marriage negotiation had taken place in her house only. Even she also stated that the said negotiation had took place a week’s prior to the marriage and it was decided in the negotiation that a cash of `1 lakh is to be given to the accused and 35 pawans of gold also to be given. Accordingly, `1 lakh in cash was given from PW-1 in her house only. In her cross-examination though an attempt was made to establish that in their custom, the ladies would not participate in the marriage negotiations, the witness though admitted that it is a general practice, but, made it clear that, in the house where the marriage negotiations have taken place, the other members in the family would also be aware of the negotiations. However, this witness admitted a suggestion as true that in their community, at the time of marriage, the parents of the bride according to their status would give the golden ornaments to the bride. Still, the evidence of this witness go to show that giving of `1 lakh is only as per the marriage negotiations that has taken place and was not as a part of any custom.
65. PW-5, the cousin brother of the deceased has not stated anything about the alleged payment or demand for dowry. It is only PW-9 who apart from other family members of the deceased has spoken about the alleged demand and payment of dowry. The said witness has stated that he is the neighbour of PW-1 and he knows the family of the deceased. He has stated that he was one among the participant in the marriage negotiations of deceased Avvamma @ Ayisha which took place in the house of PW-4 at Uppinangady. The said witness in very clear terms has stated that in the marriage negotiations, it was decided to give `1 lakh as dowry and 35 pawans of gold. He has also stated that the said amount of `1 lakh was given to the accused in his presence only.
In his cross-examination, he has given some more details of the marriage negotiation that has taken place. He has given the details of the persons who were participated in the marriage negotiation and in what manner the marriage negotiation would take place in their community. However, he too has stated that in their community, there is a custom of giving gold ornaments to the bride during the marriage by her parents.
66. From the evidence of PWs.1, 2, 3, 4 and 9, what can be seen is that no where the accused have denied the receipt of a sum of `1 lakh from the parents of the deceased. PWs.1, 2, 3, 4 and 9 have clearly and specifically stated that the said amount was given from the parents of the deceased. PW-1 who is none else than the father of the deceased has specifically and clearly stated that the said amount was given to none else than accused No.1 i.e., the husband of the deceased. PW-9 who is none else than the participant in the marriage negotiation, has also stated that he was present and witnessed the said delivery of a sum of `1 lakh from the parents of the deceased to the accused. Apart from that, PW-9 has stated that said sum of `1 lakh was in pursuance to the marriage negotiation and as an amount of dowry. He has specifically used the word `dowry’. The evidence of the said witness that it was a dowry and the marriage negotiation had taken place one week prior to the marriage in the house of PW-4 and that it was agreed to give `1 lakh in the said negotiation, since remained undenied from the accused side, it clearly go to prove beyond reasonable doubt that there was a demand made in the marriage negotiation for dowry with the parents of the deceased and as dowry, a sum of `1 lakh was paid by none else than the father of the deceased to accused No.1. However, with respect to 35 pawans of gold, the evidence of prosecution witnesses is not clear as to whether the same was as a part of dowry or as a customary aspect was given to the bride at the time of the marriage. Even though PW-1 has stated that if there was not a demand for 35 pawans of gold, he could have given lesser quantity of gold, but, his wife i.e., PW-2, the mother of the deceased, has stated that giving of 35 pawans of gold was at their pleasure. Therefore, even after discarding the alleged demand and giving of 35 pawans of gold, the proven fact remains that there was specific demand for a sum of `1 lakh, that too, as a dowry and the said demand was made by the accused and received by accused No.1.
67. Admittedly, accused Nos.2 and 3 are married sisters of accused No.1 and were residing in their respective husband’s house. None of the witnesses have spoken about accused Nos.2 and 3 participating in the marriage negotiations. The evidence of the prosecution witnesses go to show that the demand and collection of the dowry was though from the accused side, but, was mainly from accused No.1, the husband of the deceased. Even according to PW-1, giving of a sum of `1 lakh as a dowry was also in the hands of accused No.1, who is the husband of the deceased. Therefore, the prosecution could able to prove beyond reasonable doubt that there was demand and acceptance of dowry from accused No.1. However, there are no sufficient material to hold that it has proved the alleged guilt against the remaining accused i.e., accused Nos.2, 3 and 4 beyond reasonable doubt.
68. Since the trial Court on the said point did not notice that both PWs.1 and 3 have stated that there was demand for dowry and more particularly, PW-9, the person who participated in the marriage negotiation, has stated that it was agreed to be given as a dowry, has erroneously came to a conclusion that there was no cogent evidence to prove that there was any demand for dowry and its acceptance.
69. No doubt, the said finding of the trial Court would be a correct finding as against accused Nos.2, 3 and 4, but, since the analysis made above clearly go to show that the prosecution has placed cogent and reliable evidence to prove the alleged guilt against accused No.1, we are inclined to hold that the prosecution has proved beyond reasonable doubt that accused No.1 is guilty of the offences punishable under Sections 3 and 4 of D.P.Act. Consequently, accused No.1 though is eligible for acquittal for the offences punishable under Sections 302 and 201 of IPC, but is liable to be convicted for the offences punishable under Sections 3 and 4 of D.P.Act and to be sentenced accordingly.
70. Accordingly, we proceed to pass the following:-
O R D E R [i] Criminal Appeal No.1003/2013 filed by the appellant/complainant is dismissed.
[ii] Criminal Appeal No.228/2014 filed by the State is allowed-in-part.
[iii] Criminal Appeal No.1027/2013 filed by appellant/accused No.1 is allowed-in-part.
[iv] The judgment of conviction dated 22.08.2013 and order on sentence dated 24.08.2013, passed by the learned V.Addl.District & Sessions Judge, Dakshina Kannada, Mangaluru, sitting at Puttur, in Sessions Case No.74/2012, holding the accused No.1- appellant in Criminal Appeal No.1027/2013 – Mr. Sulaiman @ Keduvadka Sulaiman, S/o Abdulla Beary @ Bhava, resident of Kadambu House, Perne Village, Bantwal Taluka, Dakshina Kannada, guilty of the offences punishable under Sections 302 and 201 of IPC is hereby set aside. Consequently, accused No.1 is acquitted of the alleged offences punishable under Sections 302 and 201 of IPC. However, the acquittal of accused No.1 for the offences punishable under Sections 3 and 4 of D.P.Act by the trial Court is set aside and accused No.1 is convicted for the offences punishable under Sections 3 and 4 of D.P.Act.
[v] The remaining prayers made by the appellant in Criminal Appeal No.228/2014, seeking conviction of the accused for the remaining offences stand dismissed.
Heard the learned counsel for accused No.1 and the learned State Public Prosecutor regarding sentence for the offences punishable under Sections 3 and 4 of D.P.Act.
Considering the facts and circumstances of the case and the criminality of the proven guilt, we impose a punishment of simple imprisonment for a period of five years and a fine of `1 lakh, and in case of default of payment of fine, an additional simple imprisonment for a period of one year to the accused No.1 for the offence punishable under Section 3 of D.P.Act.
Similarly, we also impose simple imprisonment for a period of one year and a fine of `5,000/- and in default of payment of fine, an additional sentence of three months simple imprisonment to the accused No.1 for the offence punishable under Section 4 of D.P.Act.
Both the sentences shall run concurrently. The accused No.1 is entitled for set off under Section 428 of Cr.P.C.
The fine amount paid by the accused No.1, if any, by virtue of the impugned order and if the same still remains with the State, be appropriated to the fine amount imposed today for the offences punishable under Sections 3 and 4 of D.P.Act, provided if he has not undergone the default sentence already.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the trial Court without delay.
The Registry to furnish an entire copy of this judgment to accused No.1 free of cost.
Sd/- JUDGE Sd/- JUDGE PL/bk/