IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE DR.JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No. 2047 OF 2017 BETWEEN:
Choodalingegowda Son of Moogiregowda Aged about 37 years Residing at No.43/A, Vinayaka Layout, Nayandahalli, Bengaluru – 560 039.
(By Sri.A.V. Ramakrishna, Advocate) AND:
State of Karnataka By Chandra Layout Police Station, Represented by State Public Prosecutor, High Court of Karnataka, High Court Building, Bengaluru – 560 001.
(By Sri. Vijay Kumar Majage, Addl. SPP) …Appellant …Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment of conviction dated 29-06-2017 and order of sentence dated 30-06-2017 passed by the Principal City Civil and Sessions Judge, Bengaluru in S.C.No.1586/2011 – convicting the appellant/accused No.1 for the offence punishable under Section 302 of IPC and Sections 3 and 4 of Dowry Prohibition Act and sentencing to undergo Rigorous Imprisonment for life and to pay fine of `10,000/- and in default of payment of fine he shall undergo further Simple Imprisonment for six months for the offence punishable under Section 302 of IPC and further, sentencing to undergo rigorous imprisonment for 5 years and to pay fine of `50,000/- and in default of payment of fine he shall undergo further Simple Imprisonment for six months for the offence punishable under Section 3 of Dowry Prohibition Act; and further sentencing to undergo Rigorous Imprisonment for one year and to pay fine of `5,000/- and in default of payment of fine he shall undergo further Simple Imprisonment for six months for the offence punishable under Section 4 of Dowry Prohibition Act; and ordering that all the sentences shall run concurrently and seeking for acquittal of the said offences.
This Criminal Appeal coming on for Hearing this day, Dr.H.B. PRABHAKARA SASTRY, J., delivered the following:
J U D G M E N T The present appellant who was accused No.1 in the Court of the Principal City Civil and Sessions Judge, Bengaluru (hereinafter referred to as “Trial Court” for brevity) in a common judgment dated 29-06-2017 passed in S.C.No.1586/2011 was convicted for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, 1961, (hereinafter referred to as the “D.P. Act” for brevity) and under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for brevity) and was sentenced accordingly.
Challenging the said judgment of conviction, the appellant/accused No.1 has preferred this appeal seeking his acquittal from the aforesaid offences.
2. The summary of the case of the prosecution is that PW-1, Malave Gowda had lodged a complaint with the respondent - Police on 01-11-2010, the summary of which complaint is that his second daughter by name Madhushree (deceased) was given in marriage to appellant/accused No.1 on 31-03-2004. At the time of marriage, valuables in the form of cash and gold were given as dowry. After marriage, the deceased Madhushree went to her matrimonial home and was staying with her husband and in-laws. Two years after her marriage, her husband and in-laws started subjecting her to cruelty demanding for additional dowry. Due to the constant demand made by them, the complainant (PW-1) who is the father of the deceased was compelled to purchase a portion of the Site bearing No.24/A, 3rd Cross, Vinayaka Layout, Nayandahalli for a sum of `90,000/- and got it registered in favour of his son-in-law, i.e., accused No.1. Subsequently, the complainant was also obliged to put up a shed in the said site where the accused No.1 and his wife(deceased) started living with their minor son Vikas. According to complainant, the deceased was telling them about the cruelty and harassment for which she was subjected to by her husband and in-laws.
That being the case, on 31-10-2010, the complainant’s son-in-law, i.e., accused No.1, his wife i.e., the deceased Madhushree along with their minor son Vikas had been to the house of the complainant and in the evening they left for their home. On the very next day, i.e., on 01-11-2010, at about 7:30 a.m., Kum. Arpitha, aged about 5-6 years, who is the grand daughter of the complainant (PW-1) went to the house of the complainant to bring Vikas, the son of the accused and the deceased. However, she returned immediately with a news that she saw her aunt, i.e., the deceased Madhushree fallen near the cot in her house with bleeding injuries on her neck and was unconscious. Hearing the said information, the complainant joined by his wife rushed to the house of his daughter Madhushree, only to find that his daughter Madhushree was found dead in a pool of blood in her house and her husband i.e., accused No.1 and their son Vikas were not found in the said place. When the complainant enquired with his mother, who is also the grand mother of accused No.1, he was told that accused No.1 brought their son Vikas to her house in the midnight of the previous day and left there. The complainant alleged that on the intervening night of 31-10-2010 and 01-11-2010, his son-in-law i.e., accused No.1 inflicted injuries on the neck of their daughter Madhushree with sharp weapon and caused her murder and therefore, requested the respondent Police to take action. The said complaint was registered by the respondent Police Station in their Station Crime No.282/2010 for the offences punishable under Sections 498-A, 302 of IPC read with Sections 3 and 4 of the D.P. Act.
3. After completing the investigation, the Police filed the charge sheet against accused Nos.1 to 3 for the alleged offences. Charges were framed. Since the accused pleaded not guilty, the trial was held, wherein the prosecution in order to prove the alleged guilt against the accused, examined PW-1 to PW-16 and got marked documents from Exs.P1 to P21 and Material Objects from MO-1 to MO-10.
On behalf of the accused, one Smt. Choodamma, was examined as DW-1, but no documents were marked as exhibits from the side of the accused.
4. After hearing both the sides, the Trial Court by its impugned common judgment acquitted accused Nos.2 and 3, who are the parents of accused No.1 from the alleged offences and convicted accused No.1 (appellant herein) for the offence punishable under Section 302 of IPC and under Sections 3 and 4 of D.P. Act and sentenced him accordingly.
5. It is against the said judgment of conviction, the accused No.1 has preferred this appeal.
6. Lower Court Records were called for and the same are placed before this Court.
7. Heard the arguments of the learned counsel for the appellant (accused No.1) and the learned Additional State Public Prosecutor on behalf of the respondent - police.
8. Perused the materials placed before us, including the Lower Court Records.
9. Learned counsel for the appellant in his arguments, at the outset, submitted that the conviction of appellant (accused No.1) for the offence punishable under Sections 3 and 4 of D.P. Act was totally uncalled for, since with respect to the very same offences alleged in the complaint, the appellant was tried in the Court of Senior Civil Judge and JMFC at Channapattana in C.C.No.44/2013 and acquitted of the offences punishable under Sections 498-A, 323 and 324 of IPC and Sections 3 and 4 of D.P. Act, as such, trying the very same accused for the very same offence amounts to double jeopardy.
With respect to the nature of death of deceased Madhushree, learned counsel for the appellant submitted that though he does not dispute the place of death of the deceased, however, there is no proof to hold that the death of the deceased was homicidal.
Learned counsel for appellant further argued that admittedly there are no eye witnesses to the alleged incident. The best witness to give any evidence whatsoever is the neighbours, who were examined as PW-6, PW-7 and PW-8. None of them have supported the case of the prosecution. It is solely based upon the evidence of PW-1 and PW-12, who are the parents of the deceased Madhushree, the Trial Court has pronounced the judgment of conviction, which finding of the Court below is an erroneous one and bereft of any supporting material.
10. The learned Additional State Public Prosecutor in his arguments submitted that the very nature of injuries found on the person of the deceased clearly depicts that it is homicidal death. Apart from the statements of panchas in the Inquest Panchanama, Post-Mortem report and the evidence of the Doctor, who conducted autopsy clearly reveals that the injuries found on the person of the deceased could not have been self-inflicted and more particularly, injury No.4. As such, the death of the deceased Madhushree is proved to be a homicidal one.
Learned Additional SPP further submitted that the evidence of PW-1 and PW-12 to the effect that, just on the previous evening of the alleged incident, the accused No.1 and the deceased along with their child Vikas left the house of the complainant, is not in dispute. On the very next morning, the deceased was found dead in her house where she was residing with her husband and the minor child Vikas aged about two to three years. In such a situation, since the homicidal death has taken place in the place of none else than the accused where the accused was the only other major person residing, it was for him to explain the details of the incident or the reason for the unnatural death of his deceased wife which he has failed to do.
Learned Additional SPP further submitted that, nowhere the accused in his statement given under Section 313 of the Code of Criminal Procedure, 1973, (hereinafter referred to as “Cr.P.C.” for brevity) has given any statement about the incident taken place in his house. He has not even established in his defence that he was not in the house at the time of the alleged incident. His alleged night-shift work has also not been proved by him.
Learned Additional SPP finally submitted that DW-1, who is none other than the grand mother of the accused and examined by none else than the accused also has not supported the case of the accused. On the other hand, the evidence of the prosecution witnesses that in the midnight of the date of incident, the accused had taken his minor child Vikas and evidence of DW-1 clearly goes to show that it was the accused and accused alone who has committed the alleged offence of committing the murder of his deceased wife Madhushree.
11. It is not in dispute that deceased Madhushree is none else than the wife of the appellant herein, whose marriage had taken place with the accused on 31-03-2004 in a Kalyana Mantapa at Nayandahalli, Bengaluru. It is also not in dispute that from the said wedlock, the couple got a child by name Vikas, who was aged about two to three years as on the date of the alleged incident. It is further not in dispute that in the intervening night of 31-10-2010 and 01-11-2010, the said Madhushree died of an unnatural death in her matrimonial home where she was residing with her husband and child Vikas, situated at No.24/A, 3rd Cross, Vinayaka Layout, Nayandahalli. It is in the light of these undisputed facts that the evidence of prosecution witnesses is required to be looked into.
12. PW-1, who is admittedly the father of the deceased and father-in-law of the accused No.1, in his evidence has stated that twenty days prior to the marriage, marriage negotiation took place wherein all the accused persons participated in the marriage negotiation and the accused demanded from the complainant, cash and valuables in the form of dowry and it was agreed that the complainant should give a cash of `50,000/-, one gold ring and one gold chain to the bridegroom; one gold necklace, one pair of ole, jhumki and one gold chain to the bride. Accordingly, the marriage was celebrated at the expenses of the complainant. Eight days subsequent to the marriage talks, the complainant gave cash of `50,000/- and one gold chain to the accused persons in the presence of the complainant’s mother in his house. For about one and half years, his daughter Madhushree was happily residing in her matrimonial home. Thereafter, they shifted their residence to Bengaluru. Then the accused started demanding to get a residential house for him at Bengaluru and started ill-treating and torturing his wife Madhushree. Due to the constant harassment and pestering of Madhushree for the said demand, the complainant who was paying the monthly rentals of a rented house where the accused was residing, however, purchased a portion of a residential site bearing No.24/A, 3rd Cross, Vinayaka Layout, Nayandahalli, for a valuable consideration and got it registered in favour of his son-in-law (appellant herein).
PW-1 has also stated that he was also obliged to put up a house with asbestos sheets in the site purchased for the accused where the accused/appellant with his wife Madhushree and son Vikas started residing. Despite the same, the demand by the accused did not stop and he continued to demand for demolition of the said asbestos structure and for putting up a three-storied building at the cost of the complainant. However, the complainant expressed his inability to meet the said demand. PW-1 has also stated that his son-in-law, i.e. accused No.1 was not working regularly and that he had no earnings. Many a time he used to be in the house of the complainant the whole day and go to his house only for sleeping. That being the case, on 31-10-2010, as usual, his son-in-law (accused No.1), the deceased and their child Vikas stayed in his (complainant’s) house from morning till night where they had breakfast, lunch and dinner and thereafter, they returned to their house. On the next morning, i.e., on 01-11-2010 at 7:30 a.m., when Kum. Arpitha, the grand daughter of the complainant went to the house of the deceased to bring the child Vikas to their house, she returned running and told that her aunt, i.e. the deceased Madhushree was lying in a pool of blood alone in her house and that the child Vikas and his father were not found in the house. Immediately, this witness (PW-1) joined by his wife (PW-12) rushed to the house of the deceased only to see the dead body of their daughter Madhushree in a pool of blood, near the cot in her house.
PW-1 has further stated that since he did not find the accused(appellant) and his child Vikas in the said house, he contacted his mother (grand mother of accused No.1) through phone, who told that accused No.1 had been to her house in the previous late night and had left his child Vikas there telling that he has murdered his wife and had left the place. After getting the said information, he (complainant) lodged a complaint with the Police, which this witness has identified as Ex.P1.
The witness has further stated that after registration of the crime, the police visited the spot as shown by him and drew a scene of offence panchanama as per Ex.P2 from which place, the police collected a blood stained bed sheet, a pillow cover and also the blood stained cotton swabs (two Numbers) which the witness has identified at MO-1 to MO-4.
The witness was subjected to a detailed and searching cross-examination from the side of the accused where he adhered to his original version.
13. PW-2, Shivakumar and PW-3, N. Venkatesh have stated about the police drawing the scene of offence panchanama as per Ex.P2 in their presence and collecting the Material Objects, MO-1 to MO-4 from the spot.
14. PW-4, Shankar though was projected by the prosecution as a panch witness for inquest panchanama, has only stated that the police have taken his signature on the panchanama, however, he was not allowed to go inside the mortuary, where the inquest panchanama as stated above was drawn. Though he was treated as hostile by the prosecution, still, he did not show any favour to the prosecution in his cross-examination.
15. PW-5, Bettegowda has stated that the deceased Madhushree is the daughter of his wife’s sister, as such PW-1 (complainant) is his co- brother. The said witness apart from stating that the deceased Madhushree was given in marriage to the accused No.1 (appellant) about ten years back prior to the date of his evidence, has stated that fifteen days prior to the marriage there was a marriage talk in which he also participated. All the three accused i.e. husband and in-laws of the deceased Madhushree who participated in the marriage talks, demanded for dowry. Though PW-1 (complainant) was reluctant to give his daughter for marriage to accused No.1, who was none other than his nephew, but, the accused persons prevailed upon him for the marriage on the pretext that otherwise the land and properties would be wasted.
PW-5 has further stated that accused persons demanded for a motor cycle, gold chain, watch, gold ring and jewels for the bride. The complainant expressed his inability to meet their demands. However, it was agreed that a cash of `50,000/- to be paid to the accused by the father of the deceased for which PW-1 agreed. PW-1 gave the said cash amount of `50,000/- to accused No.2, the father of accused No.1, fifteen days prior to the marriage, in his presence. The gold articles as agreed were also given in marriage.
PW-5 further stated that after their marriage, deceased Madhushree joined her husband in her matrimonial home. The couple led a happy married life for about one and a half years. Thereafter, because of some displeasure between the deceased and her husband, the accused started demanding for valuables, and harassing the deceased. The accused demanded a residential site at Nayandahalli for him to be provided by the father of the deceased. This made the complainant to purchase one half of the residential site at Vinayaka Layout in the name of the accused No.1. Thereafter, the accused again started demanding the complainant through the deceased for putting up a residential house of two to three-storied building on the vacant site.
The witness has further stated that the quarrel between the deceased and the accused No.1 intensified thereafter. He was told by his co-brother i.e. the complainant (PW-1) that accused No.1 assaulted the deceased and immediately the complainant and this witness went to Malagala village where the parents of the accused No.1 were residing. By that time, the deceased was already admitted to a Hospital at Channapattana and when they went to Channapattana Hospital, they saw that the deceased had sustained injury to her ear. Then, they went to Channapattana Police Station, where the complainant i.e. the father of the deceased lodged a complaint against the accused persons.
The witness also stated that when he visited the deceased in the Hospital along with the complainant, he enquired with deceased Madhushree and through her came to know that, while she was sleeping, accused No.1 had assaulted her with a knife. Though the complainant was not willing to send his daughter back to the house of the accused after the said incident but on the advise of his relatives, he was obliged to send his daughter back to her husband’s house, where they started living in the residential site (shed with asbestos) at Vinayaka Layout purchased in the name of accused No.1.
The witness has stated further that on 01-11-2010, the complainant informed him over telephone that the neck of his daughter Madhushree was slit and murdered. Immediately his wife (of this witness) went to the said Hospital at Vinayaka Layout by which time, the dead body of Madhushree was shifted to Victoria Hospital. This witness went to Victoria hospital and saw the dead body.
The witness has categorically stated that in the house at Vinayaka Layout, along with accused No.1, deceased Madhushree and their only child Vikas, aged about one and a half years were living together.
This witness was subjected to a detailed cross- examination wherein he adhered to his original version.
16. PW-6, Smt. Anthony Mary, PW-7, Sagay Raju and PW-8, Ningappa though were projected by the prosecution as the neighbours of the deceased who speak about the alleged cruelty meted to the deceased and also about the incident, but these three witnesses, except stating that they were neighbours of the deceased and accused No.1 at Vinayaka Layout, Nayandahalli Bengaluru, have not favoured the prosecution any further and with regard to the marital life of the deceased with the accused and the alleged incident of death of the deceased, all these three witnesses have expressed their ignorance. Even after treating them hostile, the prosecution could not get any favourable statement from them in their cross-examination.
17. PW-9, S.R. Sanna Shetty, a Head Constable of the Respondent Police Station has spoken about he being entrusted the work of getting the Post-Mortem examination of the dead body of Madhushree done and he executing the said work and also collecting the cloths found on the dead body of the deceased and presenting the same before his superior along with report at Ex.P9.
18. PW-10, Dr. Suresh, the Assistant Professor at Department of Forensic Medicine, Victoria Hospital, Bengaluru, has stated that on 01-11-2010 at the requisition of the Taluka Executive Magistrate, Bengaluru North Taluk, he conducted post-mortem examination on the dead body of deceased Madhushree between 7:00 p.m. and 8:00 p.m. He has stated that, on examination of the body of the deceased, he noticed the following injuries:-
1. circular contusion measuring 3cms in diameter was present over right cheek outer to right angle of mouth.
2. abrasion measuring 4cms x 1cms over top of right shoulder.
3. Superficial incised injuries four in number situated over front of neck in the upper part present one below another measuring 10cms, 11 cms, 13cms and 13cms x 0.1 cms x skin deep. The said injuries were horizontally placed with a gap of 2-3 millimeters in between them.
4. Deep incised injury situated horizontally in the lower part of front of neck, 1.5 cms below lower one of injury no.3, measuring 12cms x 1.5 cms x neck tissue deep. The margins were clean cut with tailing towards the right side. Through the injury underlying cut strap muscles of neck, completely cut trachea, completely severed both common carotid arteries were seen. Margin of the wound shown severe bleeding.
5. abrasion measuring 4mm x 2mm over left cheek, 2cms away from nose.
PW-10 has stated that all the injuries were ante- mortem and fresh in nature and he has also stated that those injuries were sufficient in the ordinary course of nature to cause death of a person. He opined that the death of deceased Madhushree was due to shock and haemorrhage as a result of injury sustained to neck. Stating that in that connection, he has also issued a Post- Mortem report, which he as identified it at Ex.P10.
The witness has also stated that the injury Nos.3 and 4 mentioned in Ex.P10 can be caused with any sharp edged weapon.
Though it was tried in his cross-examination to elicit that the injuries could have been self-inflicted injuries, the witness has categorically denied the said suggestion with respect to injury No.4 and said that the said injury cannot be caused if a person falls on a sharp object.
19. PW-11, Sri. Rajendra Kumar, the then Police Inspector of the respondent police has stated about he receiving a complaint as per Ex.P1 on 01-11-2010 at 9:30 a.m. lodged by complainant (PW-1) and registering it in their Station Crime No.282/2010 and thereafter submitting FIR as per Ex.P11 to the Court. He has also stated about he visiting the scene of offence and drawing a scene of offence panchanama as per Ex.P2 in the presence of panchas and seizing the articles at MO-1 to MO-4 under the said panchanama.
He has also stated that he prepared a rough sketch of the scene of offence at Ex.P12 and got the inquest panchanama done through the Taluka Executive Magistrate as per Ex.P5.
He has also stated that during the course of investigation, he also collected a copy of the charge sheet in C.C.No.114/2008 of Akkur Police Station. The witness also stated that during the course of investigation, he recorded the statements of several witnesses and seized the cloths found on the deceased as per MO-6 to MO-9 and also collected the marriage invitation card of the deceased and accused as per Ex.P3 and copy of the site registration documents as per Ex.P13.
The witness has stated that in the course of investigation, he also arrested the accused on different dates and recorded voluntary statement of accused No.1 on 08-11-2011 wherein the accused No.1 (appellant) stated that, he had hid one sickle below a rock at Channappaswamy Temple hillock near Khallapatna Village, Channapatna Taluk, Ramanagara District. Based on the voluntary statement given by accused No.1, this witness joined by the panchas were led by accused No.1 to the said place in a police jeep where accused No.1 took them to Channappaswamy Temple hillock and took out a sickle which he had concealed below the stones and produced the same.
The witness seized the said weapon by drawing a panchanama as per Ex.P15 in the presence of panchas, which this witness has identified as sickle in the Court, at MO-10. He has also spoken about the filing of two charge sheets in the case, initially against accused Nos. 2 and 3, showing accused No.1 as absconding and subsequently filing a supplementary charge sheet against accused No.1.
The witness was subjected to a detailed cross- examination from the side of the accused wherein the denial suggestions made to him were not admitted as true by him.
20. PW-12, Vasanthamma, the mother of the deceased has given her evidence on the same lines as that of her husband, complainant - PW-1. She too has stated about the accused demanding for valuables in the form of cash and gold as dowry prior to the marriage, during the marriage negotiations and ultimately agreeing to receive a cash of `50,000/- and gold articles as dowry, which according to this witness was given to them as agreed.
The witness has also stated that for about two years, the couple led a happy married life, thereafter the accused No.1 started ill-treating his wife i.e. the deceased Madhushree and was pestering her to get a house or site from her parents. The same was told to her by none else than her daughter deceased Madhushree. Due to the said constant ill-treatment, several panchayaths were held wherein the accused was advised to take care of his wife and not to subject her to cruelty. Even thereafter, the accused continued the harassment to his wife.
The witness has also stated that while her daughter was carrying and in the seventh month of her pregnancy, her husband, i.e. the appellant (accused No.1) inflicted injuries on her face and other parts of the body using a razor blade. She was admitted to the Hospital at Channapattana and after the said incident, these people were hesitant to send her back to her husband’s house. On the other hand, they lodged a complaint with Akkur police against the accused.
The witness stated that her daughter gave birth to a male child and thereafter continued to live with her husband in the house at Vinayaka Layout, Bengaluru, where the present incident of death took place. According to this witness, on 31-10-2010, the accused No.1 and the deceased Madhushree (her daughter) had been to their house and at about 5:00 p.m. they went back to their house at Vinayaka Layout. Kum. Arpitha, the grand daughter of this witness had been to the said house of the accused in the morning on 01-11-2010 and returned back with the news that she found her aunt i.e. the deceased Madhushree fallen in a pool of blood near the cot in her house. Immediately, the witness accompanied by her husband, PW-1 went there only to see that their daughter was lying in a pool of blood and was dead. The accused No.1 was not in the house when these people had been to that house, so also their grandson Vikas. The witness has categorically stated that accused No.1 has murdered her daughter Madhushree.
This witness also was subjected to a searching cross-examination from the side of the accused where she adhered to her original version and has given some more details about the life of her daughter and the alleged incident.
21. PW-13, Beeresh Kumar N. a Police Constable has spoken about he tracing the accused Nos.2 and 3 as per the instruction of his superior and producing them before his higher authorities along with his Report at Ex.P20 and P21.
22. PW-14, the then Taluka Executive Magistrate of Bangalore North Taluk has stated about he conducting inquest panchanama on the dead body of the deceased Madhushree on 01-11-2010 at the request of the respondent - Police Station.
The witness has identified the inquest panchanama at Ex.P5. He has also stated that from the inquest held by him and the statements of parents of the deceased, he formed an opinion that the death was because of murder.
He has also identified the cloths of the deceased at MO-6 to MO-9.
23. PW-15, Venkatesh has stated that about three and a half years or four years back, the respondent Police secured him to their Police Station and requested him to act as a panch. Accused No.1 who was present in the Police Station led him and the Police near Channakeshwara Temple at Ballapur at Channapatana Taluk and the accused No.1 removed a sickle from a heap of stones which sickle was used for murder. The Police seized the said weapon by drawing a panchanama as per Ex.P15. The witness apart from identifying his signature in the said panchanama also has identified the said sickle at MO-10.
Incidentally, this witness was not cross-examined from the side of the accused.
24. PW-16, Girish has also given his evidence on the same line as that of PW-15 and has spoken about he also being one among the panchas for the alleged recovery panchanama of MO-10.
25. From the side of the accused, one Smt.
Choodamma was examined as DW-1 who has stated that complainant is her elder son and accused No.3 is her daughter, as such, the accused No.1 is her grandson. She has stated that the deceased Madhushree also is her grand daughter, whose marriage was performed about ten years back with accused No.1 - Choodalingegowda.
26. From a reading of the above evidence of the witnesses, it goes to show that PW-1 and PW-12 being the parents of the deceased have stated about the alleged demand for dowry said to have been made by the accused and giving of the said dowry. The said statement of PW-1 and PW-12 is also corroborated by the evidence of PW-5 (maternal uncle of deceased) who himself claims to be a participant in the alleged marriage talks in whose presence negotiations of dowry was settled.
However, before proceeding further on the aspect of the alleged demand and payment of dowry, the argument of the learned counsel for the appellant that the said allegations regarding demand and payment of dowry has already been tried by a competent Court and the accused No.1 was acquitted from the alleged charges, cannot be ignored.
In that connection, learned counsel for the appellant by producing a copy of the judgment dated 24-01-2014 passed by the learned Senior Civil Judge and JMFC at Channapattana in C.C.No.44/2013 submitted that the allegations made in the said case are entirely on the same facts and the allegation made in the present case is with respect to the alleged demand for dowry. No fresh allegations of further demand for dowry has been shown to have been made, by the prosecution.
A perusal of the said judgment in C.C.No.44/2013 would go to show that the allegations made in the complaint in the said case was by none else than the wife of the accused/appellant as complainant in the said case, wherein the complainant is said to have made allegations of the accused demanding dowry prior to the marriage of accused in the form of cash, gold ornaments and other valuables. She has also alleged of cruelty said to have been meted to her by the accused subsequent to her marriage and also one incident of an assault with a weapon said to have been made against her on 23-05- 2008 by the accused which resulted in she sustaining injuries. As such, the accused was charged and tried by the said Court for the offence punishable under Sections 498-A, 323 and 324 of IPC and under Sections 3 and 4 of the D.P. Act.
27. After a detailed trial, considering the evidence led by the prosecution, the said Court by its judgment dated 24-01-2014 has acquitted the accused (present appellant) of the alleged offences including the one under Section 498-A of IPC and under Sections 3 and 4 of the D.P. Act.
28. The learned Additional SPP fairly states that the said judgment of acquittal of the accused No.1 has reached its finality as the respondent - State has not preferred any appeal against the said judgment.
29. That being the case, when the accused was already tried with respect to the alleged demand and acceptance of dowry, and in the absence of any new allegations which can be found in the case on hand, fact remains that the accused has already been tried for the alleged offences punishable under Sections 3 and 4 of the D.P. Act by a competent Court of law and has been acquitted of the alleged offences. Thus, by virtue of Section 300 of Cr.P.C., a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such an offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made or for which he might have been convicted.
Thus, by virtue of the principle of ‘double jeopardy’, since the present appellant has already been tried by a competent Court of law in C.C.No.44/2013 for the offences punishable under Sections 3 and 4 of the D.P. Act and has been acquitted by the said Court based on the merits of the case, the accused (appellant herein) ought not to have been tried by the Trial Court for the very same offences once again.
However, since the Trial Court has tried him for the alleged offences and found him guilty, now the argument of the learned counsel for the appellant in view of the principle of ‘double jeopardy’, the alleged conviction for the offence punishable under Sections 3 and 4 of the D.P. Act does not get any recognition in the eye of law, needs to be accepted.
30. As such, we are of the view that without dealing on the merits of the allegations with respect to Sections 3 and 4 of the D.P. Act, suffice it to say that in view of Section 300 of the Cr.P.C., since the appellant has already been tried and acquitted for the alleged offences punishable under Sections 3 and 4 of the D.P. Act, no fresh trial on the said offences were warranted in the matter. As such, the conviction of the accused appellant for the offences punishable under Sections 3 and 4 of the D.P. Act deserves to be set aside with no further discussion upon it.
31. The only question that remains to be considered is, about the nature of death of deceased Madhushree and the perpetrator for the alleged unnatural death of the deceased.
It is not in dispute that the deceased Madhushree met an unnatural death on the intervening night of 31- 10-2010 and 01-11-2010 in her matrimonial home at No.24/A, 3rd cross, Vinayaka Layout, Nayandahalli, within the limits of complainant Police Station. The place of death of deceased is also not in dispute since it is further corroborated by panchanama at Ex.P2, so also by the evidence of PW-2 and PW-3, as observed above.
The death of deceased Madhushree is admittedly an unnatural one. However, the accused/appellant is not ready to accept it as a homicidal death. According to him, the death of deceased Madhushree is a suicide. The complainant, PW-1 who is the father of the deceased Madhushree, PW-12, the mother of the deceased and PW-5, the maternal uncle of the deceased, in their evidence have stated that the death of the deceased Madhushree was not just homicidal but was a murder. According to them, the murder was committed by none else than the accused appellant alone.
32. The inquest panchanama at Ex.P5 supported by the evidence of PW-14 who was the Taluka Executive Magistrate also says that the opinion formed by the panchas was that the cause of death of the deceased was a murder. The better evidence to ascertain the nature of the death of the deceased would be the Post-Mortem report and the evidence of PW-10, the Doctor who conducted autopsy.
33. As observed above, the deceased Madhushree was found dead in a pool of blood near a cot in her house with injuries found on her neck. The inquest panchanama also mentions those injuries found on the person of the deceased. The Doctor who conducted autopsy, as observed above, has noticed superficial incised injuries which were four in number situated over front of neck in the upper part one below the other, measuring 10 cms., 11 cms., 13 cms., and 13 cms. x 0.1 cm. x skin deep. He has also noticed one deep incised injury situated horizontally in the lower part of front of neck, measuring 12 cms. x 1.5 cms. x neck tissue deep. He has also noticed that the said injury was cutting the strap muscles of neck and had completely cut trachea and completely severed both common carotid arteries.
With respect to the said injuries, though a suggestion was made to this witness in his cross-
examination from the side of the accused that the same would be caused if a person falls on a sharp object, the witness has denied the said suggestion. On the other hand he has stated that the said injuries can be caused by any sharp edged weapon. Thus he has made it very clear that the fatal injuries found on the deceased were not incidental or self-inflicted but are caused by the use of a sharp edged weapon. As such, the evidence of the prosecution witnesses more particularly PW-1, PW-2 and PW-5 which is further corroborated by the medical witness would clearly go to establish that the death of the deceased was homicidal.
34. The next question to be considered is, whether the alleged homicidal death of the deceased was proved to have been committed by none else than the accused and accused alone ?
In this regard, admittedly there are no eye witnesses to the alleged incident of homicidal death of the deceased Madhushree. The entire case of the prosecution is based on circumstantial evidence and more particularly on the theory of ‘last seen’.
The first person who is said to have spoken about the death of deceased Madhushree is said to be Kum. Arpitha, who is said to be the grand daughter of PW-1. When she is said to have gone to the house of her aunt, i.e. the deceased Madhushree, on 01-11-2010, to bring their son Vikas to their house, she noticed the deceased Madhushree in a pool of blood. Both PW-1 and PW-12 have spoken about the same which has not been denied or disputed from the side of the accused. It is through the said girl Arpitha that PW-1 and PW-12 who are the parents of the deceased came to know about the death of their daughter Madhushree. Both these witnesses though alleged that it was the appellant (accused No.1) alone who has committed the murder of their daughter, have in detail given the history of accused No.1 subjecting their daughter to cruelty and also an instance when he is said to have assaulted the deceased with a razor blade. However, the said aspect of the previous assault would not require much consideration for the reason that as already observed above, the said incident was already the subject matter of trial in C.C.No.44/2013.
35. Both PW-1 and PW-12 have stated that on the previous evening to the incident i.e. on 31-10-2010, the accused (appellant) joined by his wife and child Vikas left their house to their house at Vinayaka Layout. Both these witnesses have also stated that accused No.1 having no permanent job and for most part of his life remained unemployed and could not able to run a provision store said to have been established for him by PW-1. As such, many a time, he used to spend the entire day with his wife and son Vikas in the house of his in- laws i.e. PW-1. The said evidence of PW-1 and PW-12 has not been denied by the accused in their cross- examination. Thus, it goes to show that the appellant joined by his wife and child was frequently visiting the house of his in-laws and used to spend day time there and also used to have breakfast, lunch etc. in the said house. Thus, the undenied evidence of both PW-1 and PW-12 that on the previous day to the date of incident, i.e. on 31-10-2010 also, the appellant joined by his wife Madhushree and son Vikas had been to the house of his in-laws i.e. PW-1 and PW-12, and remained there till evening, stands established. The evidence of PW-1 and PW-12 on the said aspect is clear, specific and remains undenied in their cross-examination also. It is only thereafter the appellant/accused No.1 joined by his wife and son have returned to their house at Vinayaka Layout and on the very next morning at 7:30 a.m. the deceased was found dead. Therefore, admittedly on the intervening night of 31-10-2010 and 01-11-2010, it was the appellant (accused No.1), the deceased Madhushree and their son Vikas were the only members residing in the house of incident at Vinayaka Layout, where the deceased Madhushree met an unnatural death. In such a situation, when undisputedly the deceased was found last in the company of her husband and the husband alone, it necessitates the said husband/appellant to give explanation as to what transpired in that intervening night which resulted in the unnatural death of his wife.
36. In that regard, Section 114 of the Indian Evidence Act, 1872 can also be relied upon which says that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
37. In a similar context, Hon’ble Apex Court in the case of Trimukh Maroti Kirkan Vs State of Maharashtra reported in [2006] 10 Supreme Court Cases 681 at paragraph 22 was pleased to observe as follows:-
“22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P. it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khukhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr.Ravindra Prakash Mittal the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N Vs. Rajendran the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.”
In the instant case also, undisputedly the appellant/ accused No.1 being the husband of the deceased Madhushree was residing along with their minor child Vikas in their house at No.24/A, 3rd Cross, Vinayaka Layout, Nayandahalli, Bengaluru, where the alleged incident has taken place. It is not the case of the accused even in the form of defence that on the intervening night of 31-10-2010 and 01-11-2010, some other persons had entered their house or some other person was present. As such, except the deceased, the only other major person who was present in the said house was the accused. He being the husband of the deceased is also in the normal course of their life expected to stay with his wife as a part of their family life. Thus, when the evidence of PW-1 and PW-12 would clearly go to establish that on the previous evening, the accused had accompanied the deceased Madhushree, his wife and their son to his house, it was for the accused to give explanation as to what transpired in that intervening night. No where the accused has come out with any such explanation. Even in his statement recorded under Section 313 of Cr.P.C. also, he has not given any explanation. Though he has stated that he would submit his written explanation, he has failed to do so. Thus, primarily when it was established that the deceased was the one who was found last in the company of the deceased Madhushree, it was for the said husband and husband alone, being the accused to give explanation as to what transpired on that intervening night leading to the death of his wife, which he has failed to do so.
Secondly, it is the evidence of prosecution through PW-1 & PW-12 that on the intervening night, after midnight i.e., at 2:00 a.m. or 3:00 a.m., the accused had taken his minor son Vikas aged about two years from his house and left him with his grand mother, i.e., the mother of the complainant and left the place. The said statement of the prosecution witnesses has not been specifically denied from the side of the accused. Further, no where the accused has given any explanation about the non presence of his minor son Vikas in his house, on the morning of 01-11-2010, when his wife was found dead. Even though the accused examined his grand mother as DW-1, but no attempt was made from his side to elicit any details through the said witness on the point. Therefore, the non-presence of the minor child Vikas in the place of incident immediately after the incident and the statement of the witnesses that the said child was dropped at its great grand mother’s house by the appellant (accused No.1) himself, would also thicken the cloud of suspicion against the accused that he alone is answerable for the alleged death of his wife on that night. Therefore, when the prosecution could able to establish that the death of the deceased was homicidal which has taken place in the house of the present appellant, who was non else than the husband of the deceased and when it has been clearly established by the prosecution that few hours prior to the alleged incident, the accused and deceased with their minor child Vikas had been to the said house from the house of the parents of the deceased, it would be solely on the shoulder of the accused to give explanation as to the death of his wife Madhushree. In such a situation, when the persecution witnesses, more particularly, PW-1, PW-2, and PW-12 have categorically stated about the antecedents and the behavior of the accused with respect to the deceased that the deceased being the wife of the accused having decided to stay with him, joining him on the alleged date of incident, going to her marital home to stay with her husband i.e. the appellant herein, it is for the appellant/accused No.1 to come up with the explanation as to what transpired on that intervening night. Since he has failed to discharge the said burden or atleast give any reasons for the death of his wife Madhushree, it has to be necessarily inferred that it is the accused who is the cause for the death of his wife Madhushree. Thus, the homicidal death of the said Madhushree since has been caused by human intervention i.e., by none else than her husband (appellant herein), by inflicting several injuries upon the neck of the deceased, it has to be inferred that there are all the reasons to believe the case of the prosecution that the accused is guilty of committing the offence of murder of his wife Madhushree.
38. The above view also gains its support from the recovery of the weapon said to have been made at the instance of the accused. As observed above, PW-15 has clearly stated, that when he was summoned to the Police Station and shown the appellant/accused No.1 by the Police to him, the accused stated that he had hidden a sickle used in the commission of the crime at a particular place and that he would lead them and produce the said weapon. The evidence of the Investigating Officer (PW- 11) that he recorded the voluntary statement of the accused wherein the accused voluntarily disclosed that he would show the place where he had hidden the weapon used in the commission of the crime, which voluntary statement the Investigating Officer has marked at Exhibit P-14 in his evidence gets corroborated by the evidence of PW-15 – the panch.
39. PW-15 has also stated that the accused led him joined by the Police near Channakeshwara Temple at Ballapur at Channapatna Taluk and removed a sickle from a heap of stones. The witness has identified apart from panchanama at Ex.P15 even the said sickle also at MO-
10. The said evidence of PW-15, having remained undenied since he has not been subjected to cross-
examination from the side of the accused, corroborates the evidence of PW-11, the Investigating Officer that the weapon at MO-10 was recovered at the instance of the accused.
40. Learned counsel for the appellant in his argument, vehemently submitted that even though the prosecution has been able to have recovered sickle at MO-10, at the instance of the accused but, the said recovery was at a belated stage and the weapon was not sent for its examination to the Forensic Science Laboratory (FSL).
41. The learned counsel for the appellant also argued that no evidence is there to believe that the very same weapon has been used in the commission of the alleged crime for inflicting the injuries upon the deceased.
42. The learned Additional SPP in his arguments though concedes that the recovery of the weapon at MO- 10 was after an year of the alleged incident, but strongly submits that because of the lapse of a time of not less than an year and having seen all the seasons of the year, one cannot expect the subsistence of any blood stains on the weapon which was hidden not in any closed enclave or container, as such, the non sending of the weapon for its examination to Forensic Science Laboratory would not affect the case of the prosecution.
43. After considering the fact that the recovery of MO-10 was made on 08-11-2011 which was one year after the date of the incident and also of the fact that the concealing of the said weapon was below the stones at a hillock in a public place, we are more inclined to accept the argument of the learned Additional SPP about the reasons for not sending the said seized article for its chemical examination.
So far as the alleged use of the said weapon for inflicting injuries upon the deceased Madhushree is concerned, no doubt, the Doctor who conducted autopsy though was examined as PW-10, was not shown with the weapon at MO-10, as such, the said Doctor could not give his opinion regarding the relationship of the weapon at MO-10 with the injures found on the person of the deceased. No doubt, the Investigating Officer also has not taken any pain in getting either the expert’s or medical opinion regarding the weapon and its relationship with the injuries found on the person of the deceased, however, the point that cannot be ignored is that the Doctor who conducted autopsy in his evidence as PW-10 has clearly stated that the fatal injuries found on the neck of the deceased were possible to be caused by a sharp edged weapon. The said evidence of the Doctor that those injures can be caused with any sharp edged weapon, has not been denied in his cross-examination. MO-10 recovered at the instance of the accused is admittedly a sickle. The very description of the weapon as a ‘sickle’ itself goes to show that it is expected to be a sharp edged weapon. In none of the evidence of the witnesses who have identified MO-10, any attempt was made from the side of the accused to establish that the said weapon though is called as a ‘sickle’ has lost it’s sharp edge or that it had been blunt. Thus, when all these witnesses have identified MO-10 as ‘sickle’, it goes to show that the said weapon was answering its description as such it was a sharp edged weapon. Therefore, when the evidence of PW-10 would clearly go to establish that the injuries found on the neck of the deceased more particularly, injury No.4 can only be caused by human intervention by use of a sharp edged weapon, it not only establishes that the death of the deceased was homicidal, but also that, there are all the reasons to believe that it is MO-10 that has been used in the commission of the crime by none else than the accused (appellant herein) and accused alone.
44. The defence from the side of the accused was of three-fold.
The first defence as was suggested to PW-1 and PW-12 in their cross-examination was that on the intervening night of the incident, the accused had been to attend his night-shift work, as such, he was not at home. The said defence has remained only in the form of suggestions made to those two witnesses which they have promptly not admitted as true.
On the other hand, both these witnesses through out their evidence have shown that the accused No.1 (appellant) had no fixed avocation and he did not even continue the provision store set up for him by PW-1 to eke his livelihood. Thus, he was spending more time without doing any work. Apart from their evidence, even from the side of the accused also, no evidence either oral or documentary has been placed to show that as on the date of the alleged incident, the accused was working at any place more particularly having a night-shift duty. Thus, in the absence of any evidence to believe that the accused was working at the relevant point of time and that he had a night-shift on that particular date, a mere suggestion made to PW-1 and PW-12 that the accused was on night-shift on the said night, which suggestion also was not admitted as true by these two witnesses, cannot be accepted. Added to this, the evidence of PW-1 that on the same night, when he spoke to his mother (grandmother of accused), she in turn told him that the accused had brought his son Vikas to her house in the late midnight at about 2:00 a.m. or 3:00 a.m. and left him with her and gone from the place also, goes to show that on the said night, the accused had neither been to his alleged night-shift work nor away from his house but he was in his house and has carried his minor son Vikas after the incident to his grandmother’s house and left the child there.
The second defence taken by the accused in the form of suggestions once again made to PW-1 and PW-12 in their cross-examination is, the alleged love affair which the deceased alleged to have had with one Shankar, her High School-mate. Suggestions were made to PW-1 and PW-12 in their cross-examination from the side of the accused that marriage of the deceased with accused No.1 was against her willingness and that the deceased was in constant contact with one Shankar, her batch-mate in the High School and she was talking to him over her cell phone without the notice and knowledge of others including her husband. Though PW-1 has not accepted the said suggestion, but, PW-12 has vociferously opposed it. Except making that suggestion, no material was placed from the side of the accused to suspect the character of the deceased. As such, the said defence forwarded by the accused also cannot be accepted.
The last defence forwarded from the side of the accused was that, the death of the deceased Madhushree was a suicide. This aspect has already been discussed above and after detailed analysis since we have arrived at a conclusion that there is no material even to suspect that the death of the deceased was a suicide and in the presence of abundant material to show that it was homicidal, which have now proved to be a murder, the last defence forwarded by the accused regarding the nature of the death of the deceased, is also not acceptable.
In the result, the above analysis would clearly go to establish that the accused has failed to give any reasons about the incident though he was the only one found and the ‘last seen’ in the company of the deceased, on that intervening night. As has come out in the evidence of PW-1, PW-5 and PW-12, the marital life of the couple was not cordial and they were having frequent quarrel at the relevant point of time.
45. In that scenario, when the homicidal death of the deceased Madhushrree has taken place in the house of the accused when he was alone accompanying the deceased and when he has failed to give any explanation in that regard, as such, as observed above, taking recourse to Section 114 of the Indian Evidence Act, 1872 and the judgment of the Hon’ble Apex Court in Trimukh Maroti Kirkan’s case (supra), it has to be necessarily held that the only inference that can be drawn is that the accused has committed the murder of his wife Madhushree on the intervening night of 31-10-2010 and 01-11-2010.
46. The Trial Court, after analysing the evidence placed before it, in its proper perspective, since has arrived at the same conclusion, we do not find any reason to interfere in the said judgment of conviction pronounced by the Trial Court, holding the accused (appellant herein) guilty of the offence punishable under Section 302 of IPC.
47. The sentence ordered by the Trial Court against the accused for the alleged offence under Section 302 of IPC, being proportionate to the criminality of the guilt committed by the accused, any modification in the sentence ordered also is not warranted in the case.
As such, we proceed to pass the following:-
O R D E R [i] The appeal filed by the accused No.1 (appellant herein) is allowed in part;
[ii] The judgment of conviction passed by the Principal City Civil and Sessions Judge at Bengaluru dated 29-06-2017 in Sessions Case No.1586/2011 against the accused No.1/appellant holding the accused No.1/appellant herein guilty of the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act, 1961 is set aside;
[iii] The appellant/accused No.1 is acquitted of the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act, 1961.
[iv] However, the judgment of conviction passed by the Trial Court against the appellant/accused No.1 holding him guilty of the offence punishable under Section 302 of IPC and order of sentence passed for the said offence against him stands confirmed.
[v] The appellant is also entitled for set-off for his judicial custody period under Section 428 of the Code of Criminal Procedure.
Registry to transmit a copy of this judgment and the Lower Court Records to the Trial Court, without any delay.
Registry to deliver a copy of this judgment, free of cost, to the accused No.1/appellant, immediately.
In view of disposal of the main appeal, I.A.No.1/2017 seeking suspension of sentence stands dismissed as having become infructuous.
Sd/-
JUDGE Sd/- JUDGE BMV*