Narayanamurthy Vs. State of Karnataka and Anr.
EmailAppeal: Criminal Appeal No. 876 of 2008
[Arising out of SLP (Crl.) No. 5689 of 2007]
[From the final Judgment and Order dated 5.12.2006 of the High Court of Karnataka at Bangalore in Crl. Appeal No. 903/2000]
[Arising out of SLP (Crl.) No. 5689 of 2007]
[From the final Judgment and Order dated 5.12.2006 of the High Court of Karnataka at Bangalore in Crl. Appeal No. 903/2000]
Petitioner: Narayanamurthy
Respondent: State of Karnataka and Anr.
Apeal: Criminal Appeal No. 876 of 2008
[Arising out of SLP (Crl.) No. 5689 of 2007]
[From the final Judgment and Order dated 5.12.2006 of the High Court of Karnataka at Bangalore in Crl. Appeal No. 903/2000]
[Arising out of SLP (Crl.) No. 5689 of 2007]
[From the final Judgment and Order dated 5.12.2006 of the High Court of Karnataka at Bangalore in Crl. Appeal No. 903/2000]
Judges: S.B. Sinha & Lokeshwar Singh Panta, JJ.
Date of Judgment: May 13, 2008
Appearances:
Mr. P. Vishwanatha Shetty, Senior Advocate, Mr. Vikas Rajipura, Mr. K.B. Sandeep and Mr. E.C. Vidyasagar, Advocates with him for the Appellant.
Mr. Sanjay R. Hegde and Mr. E.C. Vidya Sagar, Advocates for the Respondents.
Mr. Sanjay R. Hegde and Mr. E.C. Vidya Sagar, Advocates for the Respondents.
Head Note:
Criminal Laws
Criminal Procedure Code, 1973
Section 378 – Appeal against acquittal – Jurisdiction and limitations on appellate court – Law stated.
Criminal Procedure Code, 1973
Section 378 – Appeal against acquittal – Jurisdiction and limitations on appellate court – Law stated.
Held:
In State of Rajasthan v. Raja Ram [JT 2003 (7) SC 399], it was held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice, which may arise from acquittal of the guilty, is no less than the conviction of an innocent. Further, it is held that in a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate Court considering the appeal against the judgment of acquittal is to interfere only where there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. (Para 12)
Penal Code, 1860, Sections 498A, 304B – Evidence Act, 1872, Sections 113B, 3 – Dowry death – Presumption and proof – Evidence showing alleged demand of almirah, cot, silver plate etc. after birth of girl child – Nothing to show if deceased was ill-treated or harassed for not satisfying the dowry demand or that there was any demand – Allegations of demand of gold ring, silver plate etc., on occasion of thread changing ceremony of child – Deceased returning to her parents and alleging harassment by husband and parents-in-law for dowry – Contradictions in statements of PWs – Owners of house, where incident of suicide took place and neighbours not supporting – Conversely, it is proved that silver plate and silver ‘panch patre’ given to accused/husband as per custom, on thread changing ceremony. Held that provisions of Section 304B and Section 113B of Evidence Act are not attracted. Accused deserves to be acquitted. High Court judgment, convicting accused, after setting aside acquittal, set aside. Appeal allowed. (Paras 22-29)
Penal Code, 1860, Sections 498A, 304B – Evidence Act, 1872, Sections 113B, 3 – Dowry death – Presumption and proof – Evidence showing alleged demand of almirah, cot, silver plate etc. after birth of girl child – Nothing to show if deceased was ill-treated or harassed for not satisfying the dowry demand or that there was any demand – Allegations of demand of gold ring, silver plate etc., on occasion of thread changing ceremony of child – Deceased returning to her parents and alleging harassment by husband and parents-in-law for dowry – Contradictions in statements of PWs – Owners of house, where incident of suicide took place and neighbours not supporting – Conversely, it is proved that silver plate and silver ‘panch patre’ given to accused/husband as per custom, on thread changing ceremony. Held that provisions of Section 304B and Section 113B of Evidence Act are not attracted. Accused deserves to be acquitted. High Court judgment, convicting accused, after setting aside acquittal, set aside. Appeal allowed. (Paras 22-29)
Cases Reffered:
1. Biswajit Halder Alias Babu Halder and Ors. v. State of W. B. [JT 2007 (5) SC 360] (Para 20)
2. State of Goa v. Sanjay Thakran and Anr. [JT 2007 (5) SC 146] (Para 12)
3. Harjit Singh v. State of Punjab [JT 2005 (10) SC 399] (Para 20)
4. Kamesh Panjiyar Alias Kamlesh Panjiyar v. State of Bihar [JT 2005 (2) SC 218] (Para 20)
5. State of A. P. v. Raj Gopal Asawa [JT 2004 (3) SC 560] (Para 20)
6. State of Rajasthan v. Raja Ram [JT 2003 (7) SC 399] (Para 12)
7. Kaliyaperumal v. State of T. N. [JT 2003 (7) SC 392] (Para 20)
8. Hira Lal v. State (Govt. of NCT), Delhi [JT 2003 (6) SC 195] (Para 19)
9. Satvir Singh v. State of Punjab [JT 2001 (8) SC 208] (Para 18)
10. Jaswant Singh v. State of Haryana [JT 2000 (4) SC 114] (Para 12)
11. Ramesh Babulal Doshi v. State of Gujarat [JT 1996 (6) SC 79] (Para 12)
12. Tota Singh v. State of Punjab [JT 1987 (2) SC 20] (Para 11)
13. Shivaji Sahabrao Bobade v. State of Maharashtra [1973 (2) SCC 793] (Para 12)
14. Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217] (Para 14)
15. Surajpal Singh v. State [AIR 1952 SC 52] (Para 13)
2. State of Goa v. Sanjay Thakran and Anr. [JT 2007 (5) SC 146] (Para 12)
3. Harjit Singh v. State of Punjab [JT 2005 (10) SC 399] (Para 20)
4. Kamesh Panjiyar Alias Kamlesh Panjiyar v. State of Bihar [JT 2005 (2) SC 218] (Para 20)
5. State of A. P. v. Raj Gopal Asawa [JT 2004 (3) SC 560] (Para 20)
6. State of Rajasthan v. Raja Ram [JT 2003 (7) SC 399] (Para 12)
7. Kaliyaperumal v. State of T. N. [JT 2003 (7) SC 392] (Para 20)
8. Hira Lal v. State (Govt. of NCT), Delhi [JT 2003 (6) SC 195] (Para 19)
9. Satvir Singh v. State of Punjab [JT 2001 (8) SC 208] (Para 18)
10. Jaswant Singh v. State of Haryana [JT 2000 (4) SC 114] (Para 12)
11. Ramesh Babulal Doshi v. State of Gujarat [JT 1996 (6) SC 79] (Para 12)
12. Tota Singh v. State of Punjab [JT 1987 (2) SC 20] (Para 11)
13. Shivaji Sahabrao Bobade v. State of Maharashtra [1973 (2) SCC 793] (Para 12)
14. Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217] (Para 14)
15. Surajpal Singh v. State [AIR 1952 SC 52] (Para 13)
JUDGEMENT:
Lokeshwar Singh Panta, J.
1. Leave granted.
2. Appellant-Narayanamurthy (A-1) has filed this appeal against the judgment and order dated 05.12.2006 passed by the Division Bench of the High Court of Karnataka at Bangalore in Criminal Appeal No.903/2000, whereby and whereunder appeal filed by the State against the judgment and order dated 19.04.2000 passed by the III Additional Sessions Judge, Bangalore City, in S.C. No.178/1995 acquitting the appellant and Shivabhushanamma (A-3), for the offences under Sections 498A and 304B of the Indian Penal Code [for short `IPC’] and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961, has been allowed in part and A-1 has been convicted and sentenced under Section 498A and Section 304B, IPC.
3. In all, three accused persons, namely, Narayanamurthy (A-1), his father Kannappa (A-2) and mother Shivabhushanamma (A-3), were tried by the learned III Additional Sessions Judge, Bangalore City, under Sections 498A and 304B of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 [for short `DP Act’]. During the pendency of trial, A-2 died. The learned trial Judge found the evidence of prosecution witnesses insufficient and lacking for holding A-1 and A-3 guilty of the offences alleged against them and, accordingly, they were acquitted of the charges.
4. On appeal by the State, the Division Bench of the High Court convicted A-1 for offences under Sections 498A and 304B of IPC and sentenced him to suffer rigorous imprisonment for a period of seven years under Section 304B, IPC, and rigorous imprisonment for two years under Section 498A, IPC, and to pay a fine of Rs.5,000/-, in default of payment of fine, to undergo imprisonment for three months. The amount of fine, if realised from A-1, has been ordered to be paid to Smt. Pavanamma (PW-1), mother of the deceased Jagadeshwari. Both the sentences shall run concurrently. The High Court, however, acquitted A-1 for offence under Sections 3, 4 and 6 of the DP Act, 1961, whereas the judgment of acquittal passed by the learned trial Judge in favour of A-3 has been upheld.
5. Briefly stated, the case of the prosecution was that on 03.09.1989 the marriage of Jagadeshwari, daughter of B.V.D Mani-complainant and Pavanamma (PW-1) was celebrated with A-1 in DRDO Community Hall, Bangalore. An amount of Rs.4,000/- in cash and five sovereign gold ornaments allegedly were given to A-1 in dowry at the time of the marriage. After the marriage, Jagadeshwari started living with A-1, A-2 and A-3 in their house at Yellamma Temple Road Cross, Nagarapalya, Bangalore. It was alleged that after marriage, A-1 to A-3 started harassing Jagadeshwari for not bringing sufficient dowry and were compelling her to bring more dowry from her parental house. Jagadeshwari during her pregnancy period stayed at the house of her parents for about five months. She gave birth to a female child. It was alleged that on the day fixed by the parents of Jagadeshwari for performing the customary thread changing ceremony of the child, A-1 refused to participate in the said ceremony and he made demand of a gold ring, silver plate and silver panchapatre as dowry. Since B.V.D Mani, father of Jagadeshwari, was not financially sound to fulfill the demanded articles, he gifted a steel panchapatre and steel plate to A-1. A-1 expressed his displeasure and went back to his house. After few days, Ravichandra (PW-2) took his sister Jagadeshwari and her child to the house of A-1, A-2 and A-3 at Nagarapalya and told them that his parents would try to meet their demand of dowry articles within a short time, but still they continued to ill-treat and harass Jagadeshwari.
6. On or about 7-8 days before 11.11.1990, Jagadeshwari had gone to her parents’ house and informed them that she was being harassed and assaulted by her husband, father-in- law and mother-in-law for not satisfying their dowry demand. The parents of Jagadeshwari persuaded her to go back to her in-law’s house and she, accordingly, returned to her husband. On 11.11.1990 around 2:00 p.m., Jagadeshwari alleged to have bolted the door of the kitchen from inside and poured kerosene oil on her body and then set herself on fire. Chikkathayappa (PW-15) and Mariappa (PW-16), neighbours of the accused, having noticed smoke emanating from the kitchen of the house of the accused, broke open the door and removed dead body of Jagadeshwari from there. A-1, at the relevant time, was not present at his house. Parents of the deceased, on receipt of the information of the death of their daughter through one of the relatives of PW-1, rushed to the house of the accused and on visual inspection they noticed extensive burn injuries on the dead body of Jagadeshwari. On the following day, i.e. on 12.11.1990 at 2:30 p.m., B.V.D Mani, father of the deceased, lodged a complaint (Exhibit P-1) with Byappanahalli Police Station, on the basis of which, a case in Crime No.263/1990 was registered against accused persons for an offence punishable under Section 304B, IPC. Thereafter, on 12.11.1990 after receipt of the requisition, B. Nagaraj (PW-12), who at the relevant time was working as Tehsildar, Bangalore South Taluk, visited the place of occurrence and conducted IP on the dead body of Jagadeshwari in the presence of Panchas and her close relatives. He recorded the statements of the parents, brother of the deceased and their neighbours who were present at the spot. He sent original inquest papers to S.D.M., Bangalore and furnished the copy thereof duly signed by him to the concerned police. S.E.D. D’souza (PW-13), who at the relevant time was working as PI in COD (ADC) Bangalore, conducted the investigation of the case and recorded the statements of B.V.D. Mani – complainant, Ravichandra (PW-2), Rathanamma (PW-4) and Adhilakshmi (PW-6) and visited the place of occurrence where he drew rough sketch (Exhibit P-12). Post-mortem examination on the dead body of the deceased was conducted by Dr. Thirunavakkarasu (PW-7). On 18.04.1991, the Investigating Officer collected a copy of the post-mortem report (Exhibit P-5) of the deceased. On 22.04.1991, he recorded the statement of Anthony Mary (PW-5). On 25.04.1991, the Investigating Officer examined and recorded the statements of PW-1, mother of the deceased, and Kumar @ Armugam (PW- 10).
7. After completion of the investigation and after receipt of the post-mortem report, charge sheet was filed against accused persons for the commission of the offences punishable under Sections 498A and 304B of IPC and Sections 3, 4 and 6 of the DP Act. As already stated above, Kannappa (A-2) died during the pendency of the trial. The prosecution, in support of its case, examined as many as 16 witnesses. In their statements recorded under Section 313 of the Code of Criminal Procedure, A-1 and his mother A-3 denied the allegations of the prosecution and pleaded false implication on suspicion and claimed to be innocent. They, however, led no evidence in defence. After considering the entire evidence on record, the learned trial Judge held that the prosecution has failed to prove the alleged offences against A- 1 and A-3 beyond reasonable doubt and, accordingly, acquitted them. On appeal being preferred by the State, the High Court has convicted and sentenced A-1 as aforesaid. Now, the appellant has filed this appeal by special leave against the judgment of the High Court.
8. We have heard learned counsel for the parties who have taken us through the material evidence placed on record.
9. In support of the appeal, Mr. P. Vishwanatha Shetty, learned senior counsel appearing for A-1, submitted that the prosecution has failed to prove that A-1 at any point of time has made demand of dowry or the deceased was subjected to cruelty or harassment or that the harassment was for or in connection with the demand of dowry immediately before the death of Jagadeshwari and therefore, in the absence of any believable and reliable evidence led by the prosecution, the conviction of A-1 by the High Court is wholly wrong and unjustified. He contended that the interference of the High Court in the context of reversal of acquittal is against the well- established principles laid down by this Court in series of decisions, therefore, on this ground as well the judgment of the High Court has to be set aside.
10. Mr. Sanjay R. Hegde, learned counsel for the respondent-State, on the other hand, submitted that Section 304B, IPC, has to be read in the context of Section 113B of the Evidence Act, 1872. The Court could presume the death of the deceased to be dowry death and it was open to the Court to presume further that the appellant, being husband of the deceased, was responsible for the dowry death of the deceased. He submitted that the High Court has re-appraised the entire evidence on record and found the appellant guilty of the charged offences and this Court normally should not be obliged to interfere with the well-merited and well-reasoned judgment of the High Court, which, in no circumstances, can be termed as perverse or illegal.
11. In the backdrop of the above-said contentions of the learned counsel for the parties, before dealing with the evidence coming on record we may refer to a few decisions of this Court in regard to the jurisdiction and limitations of the appellate court while considering appeal against an order of acquittal. In the case of Tota Singh v. State of Punjab [JT 1987 (2) SC 20 ; 1987 (2) SCC 529], this Court held:
‘6. … The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.’
12. In State of Rajasthan v. Raja Ram [JT 2003 (7) SC 399 ; 2003 (8) SCC 180], it was held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice, which may arise from acquittal of the guilty, is no less than the conviction of an innocent. Further, it is held that in a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate Court considering the appeal against the judgment of acquittal is to interfere only where there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were again highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [1973 (2) SCC 793]; Ramesh Babulal Doshi v. State of Gujarat [JT 1996 (6) SC 79 ; 1996 (9) SCC 225] and Jaswant Singh v. State of Haryana [JT 2000 (4) SC 114 ; 2000 (4) SCC 484] and same parameters were reiterated in the latest judgment of this Court in State of Goa v. Sanjay Thakran and Anr. [JT 2007 (5) SC 146 ; 2007 (3) SCC 755].
13. In Surajpal Singh v. State [AIR 1952 SC 52], a two-Judge Bench observed that it was well-established that in an appeal under Section 417 of the CrPC (old), the High Court had full power to review the evidence upon which the order of acquittal was founded. But it was equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence could be reversed only for very substantial and compelling reasons.
(emphasis supplied).
14. In Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217], the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial court but convicted by the High Court. Dealing with the power of the High Court against an order of acquittal, Bose, J. speaking for the majority (2:1) stated: (AIR p. 220, para 1)
‘It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong.’
(emphasis supplied)
15. Section 304B, IPC, deals with `dowry death’, which reads as follows:-
‘304B. Dowry death.–(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.
Explanation.–For the purpose of this sub-section, ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.’
16. The legislature has also introduced Section 113B of the Evidence Act alongside insertion of Section 304B, IPC.
‘113B. Presumption as to dowry death.–When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.–For the purpose of this Section ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).’
17. The basic ingredients to attract the provisions of Section 304B, IPC, are as follows:-
‘(1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;
(2) such death occurs within 7 years from the date of her marriage;
(3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(4) such cruelty or harassment should be for or in connection with the demand of dowry; and
(5) it is established that such cruelty and harassment was made soon before her death.’
18. In the case of unnatural death of a married woman as in a case of this nature, the husband could be prosecuted under Sections 302, 304B and 306 of the Penal Code. The distinction as regards commission of an offence under one or the other provisions as mentioned hereinbefore came up for consideration before a Division Bench of this Court in Satvir Singh v. State of Punjab [JT 2001 (8) SC 208 ; 2001 (8) SCC 633] wherein it was held:
’21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is `at any time’ after the marriage. The third occasion may appear to be an unending period. But the crucial words are `in connection with the marriage of the said parties’. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of `dowry’. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.
22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened `soon before her death’. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words `soon before her death’ is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval which elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept `soon before her death’.’
19. In Hira Lal v. State (Govt. of NCT), Delhi [JT 2003 (6) SC 195 ; 2003 (8) SCC 80], this Court observed that:
‘The expression ‘soon before her death’ used in the substantive Section 304B, IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession.’ The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.’
20. The same opinion was expressed by this Court in Kaliyaperumal v. State of T. N. [JT 2003 (7) SC 392 ; 2004 (9) SCC 157]; Kamesh Panjiyar Alias Kamlesh Panjiyar v. State of Bihar [JT 2005 (2) SC 218 ; 2005 (2) SCC 388]; State of A. P. v. Raj Gopal Asawa [JT 2004 (3) SC 560 ; 2004 (4) SCC 470]; Harjit Singh v. State of Punjab [JT 2005 (10) SC 399 ; 2006 (1) SCC 463] and Biswajit Halder Alias Babu Halder and Ors. v. State of W. B. [JT 2007 (5) SC 360 ; 2008 (1) SCC 202].
21. In the present case, we have independently analysed and scrutinized the evidence of the material witnesses and found that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry.
22. PW-1, mother of the deceased, deposed that after about 11 months of the marriage, her daughter delivered a female child and after staying in her house for about 5 months, she sent her daughter and the child along with her son PW-2 to the house of A-1. Jagadeshwari on 2 or 3 occasions came to her parental house and disclosed that her husband, parents- in-law and sister-in-law had been quarrelling with her for having not brought silver plate, cot, almirah and silver panchapatre at the time of thread changing ceremony of the newly born child. She stated that she gave gold ring to the child of the deceased. A complaint (Exhibit P-1) was lodged by her husband B.V.D. Mani in the Police Station in regard to the commission of the alleged offences against the husband Narayanamurthy (A-1), father-in-law Kannappa (A-2) and mother-in-law Shivabhushanamma (A-3) of the deceased. The complainant-father of the deceased could not be examined as witness in the Court because by that time he had died. The testimony of PW-1 does not support the allegations of demand for dowry by A-1 and his parents. This witness has not deposed that her daughter committed suicide because she was subjected to cruelty and harassment by A-1 in connection with the demand for dowry.
23. PW-2, the brother of the deceased, stated that his sister delivered a female child at their house and he along with his sister and her child went to the house of A-1. It is his testimony that A-1 and his sister used to quarrel with each other on some small and petty matters and her husband and parent-in-laws were demanding an Almirah, cot, silver plate, etc. from his parents. The testimony of this witness is totally contrary to the version of PW-1 and secondly he has not corroborated the allegations made in complaint (Exhibit P-1) lodged at the first point of time by his late father, on the basis of which a case was registered against A-1 and his parents in the Police Station. The evidence of this witness does not reveal that the deceased was ever ill-treated or harassed by A- 1 for not satisfying dowry demand or there was any demand of dowry ‘soon before her death’ so as to drive the deceased Jagadeshwari to take extreme steps of committing suicide.
24. Saradhamma (PW-3) – maternal aunt of deceased Jagadeshwari, deposed that after the marriage of Jagadeshwari with A-1, she came to her house and informed that she was being tortured by her parents-in-law as she could not give silver plate to them. This portion of the statement of the witness is totally inconsistent with and contrary to the versions of PWs-1 and 2, who have not deposed that after marriage Jagadeshwari had ever complained to them that she was given beatings by her parents-in-law or was ever maltreated or harassed by them. This witness admitted in cross-examination that she did not make statement before the Police Officer; that before her death, Jagadeshwari came to her house and made complaint that her husband and in-laws had harassed for having not brought a silver plate from the house of her parents. Thus, PW-3 herself has contradicted her statement recorded by the Investigating Officer under Section 161, CrPC therefore, the evidence of this witness is of no help to the prosecution to hold A-1 responsible for committing the alleged crime. The learned trial Judge has appreciated the evidence of PWs.-1, 2 and 3 in its right perspective and concluded that the evidence of these star witnesses has not established that the deceased Jagadeshwari was being ever harassed or ill-treated by the accused for bringing inadequate and insufficient dowry at the time of her marriage with A-1 or that the accused ever demanded dowry articles from the parents of the deceased before she committed suicide. PW-1 denied having made statement (Exhibit D-1) to the Investigating Officer that her husband gave Rs.4,000/- to A-1 towards marriage expenses. It is the categorical evidence of PWs-1 and 2 that the accused had borne the entire expenses of the marriage and paid rent of Kalyanamantap and also expenses of the food and other items. The complaint (Exhibit P-1) does not reveal that the accused had raised demand of dowry either in cash or in kind at the time of the marriage.
25. Dr. Thirunavakkarasu, (PW-7), Professor of Forensic Medicine, Victoria Hospital, conducted post-mortem on the dead body of Jagadeshwari on 12.11.1990 and found first, second and third degree burns present all over the body except both feet, cuticle over the burnt areas blackened, charred and peeled off at places, areas of redness here and there over chest, on the front and over limbs, scalp hairs burnt and partially singed, burnt cloth sticking over the arms, chest and abdomen. Eye brows, eye lashes, axicially and pubic hairs were singed. Doctor deposed that the burns were ante-mortem in nature to the extent of 95% and opined that the death was due to shock as a result of burns sustained. The record reveals that the original post-mortem report was not placed before the court besides of notices, but true copy thereof was produced and marked as Exhibit P-5. It is not in dispute that the deceased Jagadeshwari had sustained burn injuries to the extent of 95% and as a result thereof she died.
26. Rathanamma (PW-4) and Mariappa (PW-16), the wife and husband respectively, are the owners of the house in which the accused and his parents along with deceased Jagadeshwari were residing. PW-4 deposed that A-1 and his wife during their stay in the house were living happily and on two occasions, Jagadeshwari disclosed her that as she (Jagadeshwari) was not keeping good health, therefore, she wanted to go to her parents house and stay there for some time. She deposed that on the day of occurrence of the incident, at about 3:00 p.m. while she was in her house, she noticed smoke emanating from the house in occupation of A-1 and when she went there, she found the door of the house locked from inside and after breaking open the door, she went inside and saw the dead body of the wife of A-1 with burn injuries all over her body and the child of A-1 was also lying in the kitchen at a short distance who also sustained minor burns on her leg. Despite cross-examination by the learned Public Prosecutor, nothing substantial in support of the prosecution case could be elicited from her statement indicating that Jagadeshwari committed suicide because of ill- treatment or harassment meted out to her at the hands of her husband or his parents.
27. Anthony Mary (PW-5), Adhilakshmi (PW-6) and Kumar @ Armugam (PW-10), the other neighbours, examined by the prosecution in support of the allegations of ill-treatment or harassment of the deceased by A-1 or his parents for the demand of dowry, have not supported the prosecution case. The evidence of these witnesses would show that they have denied having made statements before the Police that the deceased Jagadeshwari committed suicide because of being maltreatment and harassed by A-1 or his parents.
28. It is proved on record that deceased B.V.D. Mani, father of deceased Jagadeshwari, gifted a silver Panchapatre and silver plate to A-1 at the time of performing customary thread changing ceremony in connection with birth of girl child and such ceremony is prevalent in their society. Such gifts are not enveloped within the ambit of `dowry’. It is also to be noticed that the High Court on the same set of evidence has chosen to acquit A-3 (the mother of A-1), whose case is no better than that of A-1. Even the unproved allegations of ill-treatment, harassment and demand for dowry and the evidence led by the prosecution are similar to that led against A-3. We agree with the High Court that the evidence against mother (A-3) is insufficient and inconsistent to convict her and, in our view, it is the same against A-1. This deficiency in the evidence proves fatal to the prosecution case. Even otherwise, mere evidence of cruelty and harassment is not sufficient to being in application of Section 304B, IPC. It is to be established that `soon before death’, deceased was subjected to cruelty or harassment by her husband for, or `in connection with demand for dowry’. In the afore-mentioned situation, the provisions of Section 304B, IPC, and Section 113B of the Evidence Act could not be attracted to hold A-1 guilty of the offence of dowry death and/or cruelty in terms of Section 498A, IPC. The prosecution, therefore, must be held to have failed to establish any case against A-1 herein.
29. Having given our careful consideration to the above- stated submissions made by the learned counsel for the parties and in the backdrop of the evidence discussed hereinabove and tested in the light of the principles of law highlighted above, it must be held that the evaluation of the findings recorded by the High Court suffer from manifest error and improper appreciation of the evidence on record. Therefore, the judgment of the High Court setting aside the order of acquittal of A-1 cannot be sustained.
30. For the reasons stated above, we are of the considered opinion that the evidence led by the prosecution in regard to the involvement of A-1 in the death of Jagadeshwari is not proved beyond reasonable doubts by the prosecution, hence, the High Court was in error in basing conviction of A-1 on weak and slender evidence appearing against him.
31. In the result, this appeal succeeds and the same is allowed. The judgment of the High Court dated 05.12.2006 passed in Criminal Appeal No.903/2000 is set aside and the order of acquittal of A-1 recorded by the learned trial Judge shall stand restored. The amount of fine imposed by the High Court upon A-1, if paid, shall be remitted to him. Narayanamurthy shall be set at liberty by the Jail authorities if his detention is not required in any other case.
1. Leave granted.
2. Appellant-Narayanamurthy (A-1) has filed this appeal against the judgment and order dated 05.12.2006 passed by the Division Bench of the High Court of Karnataka at Bangalore in Criminal Appeal No.903/2000, whereby and whereunder appeal filed by the State against the judgment and order dated 19.04.2000 passed by the III Additional Sessions Judge, Bangalore City, in S.C. No.178/1995 acquitting the appellant and Shivabhushanamma (A-3), for the offences under Sections 498A and 304B of the Indian Penal Code [for short `IPC’] and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961, has been allowed in part and A-1 has been convicted and sentenced under Section 498A and Section 304B, IPC.
3. In all, three accused persons, namely, Narayanamurthy (A-1), his father Kannappa (A-2) and mother Shivabhushanamma (A-3), were tried by the learned III Additional Sessions Judge, Bangalore City, under Sections 498A and 304B of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 [for short `DP Act’]. During the pendency of trial, A-2 died. The learned trial Judge found the evidence of prosecution witnesses insufficient and lacking for holding A-1 and A-3 guilty of the offences alleged against them and, accordingly, they were acquitted of the charges.
4. On appeal by the State, the Division Bench of the High Court convicted A-1 for offences under Sections 498A and 304B of IPC and sentenced him to suffer rigorous imprisonment for a period of seven years under Section 304B, IPC, and rigorous imprisonment for two years under Section 498A, IPC, and to pay a fine of Rs.5,000/-, in default of payment of fine, to undergo imprisonment for three months. The amount of fine, if realised from A-1, has been ordered to be paid to Smt. Pavanamma (PW-1), mother of the deceased Jagadeshwari. Both the sentences shall run concurrently. The High Court, however, acquitted A-1 for offence under Sections 3, 4 and 6 of the DP Act, 1961, whereas the judgment of acquittal passed by the learned trial Judge in favour of A-3 has been upheld.
5. Briefly stated, the case of the prosecution was that on 03.09.1989 the marriage of Jagadeshwari, daughter of B.V.D Mani-complainant and Pavanamma (PW-1) was celebrated with A-1 in DRDO Community Hall, Bangalore. An amount of Rs.4,000/- in cash and five sovereign gold ornaments allegedly were given to A-1 in dowry at the time of the marriage. After the marriage, Jagadeshwari started living with A-1, A-2 and A-3 in their house at Yellamma Temple Road Cross, Nagarapalya, Bangalore. It was alleged that after marriage, A-1 to A-3 started harassing Jagadeshwari for not bringing sufficient dowry and were compelling her to bring more dowry from her parental house. Jagadeshwari during her pregnancy period stayed at the house of her parents for about five months. She gave birth to a female child. It was alleged that on the day fixed by the parents of Jagadeshwari for performing the customary thread changing ceremony of the child, A-1 refused to participate in the said ceremony and he made demand of a gold ring, silver plate and silver panchapatre as dowry. Since B.V.D Mani, father of Jagadeshwari, was not financially sound to fulfill the demanded articles, he gifted a steel panchapatre and steel plate to A-1. A-1 expressed his displeasure and went back to his house. After few days, Ravichandra (PW-2) took his sister Jagadeshwari and her child to the house of A-1, A-2 and A-3 at Nagarapalya and told them that his parents would try to meet their demand of dowry articles within a short time, but still they continued to ill-treat and harass Jagadeshwari.
6. On or about 7-8 days before 11.11.1990, Jagadeshwari had gone to her parents’ house and informed them that she was being harassed and assaulted by her husband, father-in- law and mother-in-law for not satisfying their dowry demand. The parents of Jagadeshwari persuaded her to go back to her in-law’s house and she, accordingly, returned to her husband. On 11.11.1990 around 2:00 p.m., Jagadeshwari alleged to have bolted the door of the kitchen from inside and poured kerosene oil on her body and then set herself on fire. Chikkathayappa (PW-15) and Mariappa (PW-16), neighbours of the accused, having noticed smoke emanating from the kitchen of the house of the accused, broke open the door and removed dead body of Jagadeshwari from there. A-1, at the relevant time, was not present at his house. Parents of the deceased, on receipt of the information of the death of their daughter through one of the relatives of PW-1, rushed to the house of the accused and on visual inspection they noticed extensive burn injuries on the dead body of Jagadeshwari. On the following day, i.e. on 12.11.1990 at 2:30 p.m., B.V.D Mani, father of the deceased, lodged a complaint (Exhibit P-1) with Byappanahalli Police Station, on the basis of which, a case in Crime No.263/1990 was registered against accused persons for an offence punishable under Section 304B, IPC. Thereafter, on 12.11.1990 after receipt of the requisition, B. Nagaraj (PW-12), who at the relevant time was working as Tehsildar, Bangalore South Taluk, visited the place of occurrence and conducted IP on the dead body of Jagadeshwari in the presence of Panchas and her close relatives. He recorded the statements of the parents, brother of the deceased and their neighbours who were present at the spot. He sent original inquest papers to S.D.M., Bangalore and furnished the copy thereof duly signed by him to the concerned police. S.E.D. D’souza (PW-13), who at the relevant time was working as PI in COD (ADC) Bangalore, conducted the investigation of the case and recorded the statements of B.V.D. Mani – complainant, Ravichandra (PW-2), Rathanamma (PW-4) and Adhilakshmi (PW-6) and visited the place of occurrence where he drew rough sketch (Exhibit P-12). Post-mortem examination on the dead body of the deceased was conducted by Dr. Thirunavakkarasu (PW-7). On 18.04.1991, the Investigating Officer collected a copy of the post-mortem report (Exhibit P-5) of the deceased. On 22.04.1991, he recorded the statement of Anthony Mary (PW-5). On 25.04.1991, the Investigating Officer examined and recorded the statements of PW-1, mother of the deceased, and Kumar @ Armugam (PW- 10).
7. After completion of the investigation and after receipt of the post-mortem report, charge sheet was filed against accused persons for the commission of the offences punishable under Sections 498A and 304B of IPC and Sections 3, 4 and 6 of the DP Act. As already stated above, Kannappa (A-2) died during the pendency of the trial. The prosecution, in support of its case, examined as many as 16 witnesses. In their statements recorded under Section 313 of the Code of Criminal Procedure, A-1 and his mother A-3 denied the allegations of the prosecution and pleaded false implication on suspicion and claimed to be innocent. They, however, led no evidence in defence. After considering the entire evidence on record, the learned trial Judge held that the prosecution has failed to prove the alleged offences against A- 1 and A-3 beyond reasonable doubt and, accordingly, acquitted them. On appeal being preferred by the State, the High Court has convicted and sentenced A-1 as aforesaid. Now, the appellant has filed this appeal by special leave against the judgment of the High Court.
8. We have heard learned counsel for the parties who have taken us through the material evidence placed on record.
9. In support of the appeal, Mr. P. Vishwanatha Shetty, learned senior counsel appearing for A-1, submitted that the prosecution has failed to prove that A-1 at any point of time has made demand of dowry or the deceased was subjected to cruelty or harassment or that the harassment was for or in connection with the demand of dowry immediately before the death of Jagadeshwari and therefore, in the absence of any believable and reliable evidence led by the prosecution, the conviction of A-1 by the High Court is wholly wrong and unjustified. He contended that the interference of the High Court in the context of reversal of acquittal is against the well- established principles laid down by this Court in series of decisions, therefore, on this ground as well the judgment of the High Court has to be set aside.
10. Mr. Sanjay R. Hegde, learned counsel for the respondent-State, on the other hand, submitted that Section 304B, IPC, has to be read in the context of Section 113B of the Evidence Act, 1872. The Court could presume the death of the deceased to be dowry death and it was open to the Court to presume further that the appellant, being husband of the deceased, was responsible for the dowry death of the deceased. He submitted that the High Court has re-appraised the entire evidence on record and found the appellant guilty of the charged offences and this Court normally should not be obliged to interfere with the well-merited and well-reasoned judgment of the High Court, which, in no circumstances, can be termed as perverse or illegal.
11. In the backdrop of the above-said contentions of the learned counsel for the parties, before dealing with the evidence coming on record we may refer to a few decisions of this Court in regard to the jurisdiction and limitations of the appellate court while considering appeal against an order of acquittal. In the case of Tota Singh v. State of Punjab [JT 1987 (2) SC 20 ; 1987 (2) SCC 529], this Court held:
‘6. … The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.’
12. In State of Rajasthan v. Raja Ram [JT 2003 (7) SC 399 ; 2003 (8) SCC 180], it was held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice, which may arise from acquittal of the guilty, is no less than the conviction of an innocent. Further, it is held that in a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate Court considering the appeal against the judgment of acquittal is to interfere only where there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were again highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [1973 (2) SCC 793]; Ramesh Babulal Doshi v. State of Gujarat [JT 1996 (6) SC 79 ; 1996 (9) SCC 225] and Jaswant Singh v. State of Haryana [JT 2000 (4) SC 114 ; 2000 (4) SCC 484] and same parameters were reiterated in the latest judgment of this Court in State of Goa v. Sanjay Thakran and Anr. [JT 2007 (5) SC 146 ; 2007 (3) SCC 755].
13. In Surajpal Singh v. State [AIR 1952 SC 52], a two-Judge Bench observed that it was well-established that in an appeal under Section 417 of the CrPC (old), the High Court had full power to review the evidence upon which the order of acquittal was founded. But it was equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence could be reversed only for very substantial and compelling reasons.
(emphasis supplied).
14. In Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217], the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial court but convicted by the High Court. Dealing with the power of the High Court against an order of acquittal, Bose, J. speaking for the majority (2:1) stated: (AIR p. 220, para 1)
‘It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong.’
(emphasis supplied)
15. Section 304B, IPC, deals with `dowry death’, which reads as follows:-
‘304B. Dowry death.–(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.
Explanation.–For the purpose of this sub-section, ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.’
16. The legislature has also introduced Section 113B of the Evidence Act alongside insertion of Section 304B, IPC.
‘113B. Presumption as to dowry death.–When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.–For the purpose of this Section ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).’
17. The basic ingredients to attract the provisions of Section 304B, IPC, are as follows:-
‘(1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;
(2) such death occurs within 7 years from the date of her marriage;
(3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(4) such cruelty or harassment should be for or in connection with the demand of dowry; and
(5) it is established that such cruelty and harassment was made soon before her death.’
18. In the case of unnatural death of a married woman as in a case of this nature, the husband could be prosecuted under Sections 302, 304B and 306 of the Penal Code. The distinction as regards commission of an offence under one or the other provisions as mentioned hereinbefore came up for consideration before a Division Bench of this Court in Satvir Singh v. State of Punjab [JT 2001 (8) SC 208 ; 2001 (8) SCC 633] wherein it was held:
’21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is `at any time’ after the marriage. The third occasion may appear to be an unending period. But the crucial words are `in connection with the marriage of the said parties’. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of `dowry’. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.
22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened `soon before her death’. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words `soon before her death’ is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval which elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept `soon before her death’.’
19. In Hira Lal v. State (Govt. of NCT), Delhi [JT 2003 (6) SC 195 ; 2003 (8) SCC 80], this Court observed that:
‘The expression ‘soon before her death’ used in the substantive Section 304B, IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession.’ The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.’
20. The same opinion was expressed by this Court in Kaliyaperumal v. State of T. N. [JT 2003 (7) SC 392 ; 2004 (9) SCC 157]; Kamesh Panjiyar Alias Kamlesh Panjiyar v. State of Bihar [JT 2005 (2) SC 218 ; 2005 (2) SCC 388]; State of A. P. v. Raj Gopal Asawa [JT 2004 (3) SC 560 ; 2004 (4) SCC 470]; Harjit Singh v. State of Punjab [JT 2005 (10) SC 399 ; 2006 (1) SCC 463] and Biswajit Halder Alias Babu Halder and Ors. v. State of W. B. [JT 2007 (5) SC 360 ; 2008 (1) SCC 202].
21. In the present case, we have independently analysed and scrutinized the evidence of the material witnesses and found that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry.
22. PW-1, mother of the deceased, deposed that after about 11 months of the marriage, her daughter delivered a female child and after staying in her house for about 5 months, she sent her daughter and the child along with her son PW-2 to the house of A-1. Jagadeshwari on 2 or 3 occasions came to her parental house and disclosed that her husband, parents- in-law and sister-in-law had been quarrelling with her for having not brought silver plate, cot, almirah and silver panchapatre at the time of thread changing ceremony of the newly born child. She stated that she gave gold ring to the child of the deceased. A complaint (Exhibit P-1) was lodged by her husband B.V.D. Mani in the Police Station in regard to the commission of the alleged offences against the husband Narayanamurthy (A-1), father-in-law Kannappa (A-2) and mother-in-law Shivabhushanamma (A-3) of the deceased. The complainant-father of the deceased could not be examined as witness in the Court because by that time he had died. The testimony of PW-1 does not support the allegations of demand for dowry by A-1 and his parents. This witness has not deposed that her daughter committed suicide because she was subjected to cruelty and harassment by A-1 in connection with the demand for dowry.
23. PW-2, the brother of the deceased, stated that his sister delivered a female child at their house and he along with his sister and her child went to the house of A-1. It is his testimony that A-1 and his sister used to quarrel with each other on some small and petty matters and her husband and parent-in-laws were demanding an Almirah, cot, silver plate, etc. from his parents. The testimony of this witness is totally contrary to the version of PW-1 and secondly he has not corroborated the allegations made in complaint (Exhibit P-1) lodged at the first point of time by his late father, on the basis of which a case was registered against A-1 and his parents in the Police Station. The evidence of this witness does not reveal that the deceased was ever ill-treated or harassed by A- 1 for not satisfying dowry demand or there was any demand of dowry ‘soon before her death’ so as to drive the deceased Jagadeshwari to take extreme steps of committing suicide.
24. Saradhamma (PW-3) – maternal aunt of deceased Jagadeshwari, deposed that after the marriage of Jagadeshwari with A-1, she came to her house and informed that she was being tortured by her parents-in-law as she could not give silver plate to them. This portion of the statement of the witness is totally inconsistent with and contrary to the versions of PWs-1 and 2, who have not deposed that after marriage Jagadeshwari had ever complained to them that she was given beatings by her parents-in-law or was ever maltreated or harassed by them. This witness admitted in cross-examination that she did not make statement before the Police Officer; that before her death, Jagadeshwari came to her house and made complaint that her husband and in-laws had harassed for having not brought a silver plate from the house of her parents. Thus, PW-3 herself has contradicted her statement recorded by the Investigating Officer under Section 161, CrPC therefore, the evidence of this witness is of no help to the prosecution to hold A-1 responsible for committing the alleged crime. The learned trial Judge has appreciated the evidence of PWs.-1, 2 and 3 in its right perspective and concluded that the evidence of these star witnesses has not established that the deceased Jagadeshwari was being ever harassed or ill-treated by the accused for bringing inadequate and insufficient dowry at the time of her marriage with A-1 or that the accused ever demanded dowry articles from the parents of the deceased before she committed suicide. PW-1 denied having made statement (Exhibit D-1) to the Investigating Officer that her husband gave Rs.4,000/- to A-1 towards marriage expenses. It is the categorical evidence of PWs-1 and 2 that the accused had borne the entire expenses of the marriage and paid rent of Kalyanamantap and also expenses of the food and other items. The complaint (Exhibit P-1) does not reveal that the accused had raised demand of dowry either in cash or in kind at the time of the marriage.
25. Dr. Thirunavakkarasu, (PW-7), Professor of Forensic Medicine, Victoria Hospital, conducted post-mortem on the dead body of Jagadeshwari on 12.11.1990 and found first, second and third degree burns present all over the body except both feet, cuticle over the burnt areas blackened, charred and peeled off at places, areas of redness here and there over chest, on the front and over limbs, scalp hairs burnt and partially singed, burnt cloth sticking over the arms, chest and abdomen. Eye brows, eye lashes, axicially and pubic hairs were singed. Doctor deposed that the burns were ante-mortem in nature to the extent of 95% and opined that the death was due to shock as a result of burns sustained. The record reveals that the original post-mortem report was not placed before the court besides of notices, but true copy thereof was produced and marked as Exhibit P-5. It is not in dispute that the deceased Jagadeshwari had sustained burn injuries to the extent of 95% and as a result thereof she died.
26. Rathanamma (PW-4) and Mariappa (PW-16), the wife and husband respectively, are the owners of the house in which the accused and his parents along with deceased Jagadeshwari were residing. PW-4 deposed that A-1 and his wife during their stay in the house were living happily and on two occasions, Jagadeshwari disclosed her that as she (Jagadeshwari) was not keeping good health, therefore, she wanted to go to her parents house and stay there for some time. She deposed that on the day of occurrence of the incident, at about 3:00 p.m. while she was in her house, she noticed smoke emanating from the house in occupation of A-1 and when she went there, she found the door of the house locked from inside and after breaking open the door, she went inside and saw the dead body of the wife of A-1 with burn injuries all over her body and the child of A-1 was also lying in the kitchen at a short distance who also sustained minor burns on her leg. Despite cross-examination by the learned Public Prosecutor, nothing substantial in support of the prosecution case could be elicited from her statement indicating that Jagadeshwari committed suicide because of ill- treatment or harassment meted out to her at the hands of her husband or his parents.
27. Anthony Mary (PW-5), Adhilakshmi (PW-6) and Kumar @ Armugam (PW-10), the other neighbours, examined by the prosecution in support of the allegations of ill-treatment or harassment of the deceased by A-1 or his parents for the demand of dowry, have not supported the prosecution case. The evidence of these witnesses would show that they have denied having made statements before the Police that the deceased Jagadeshwari committed suicide because of being maltreatment and harassed by A-1 or his parents.
28. It is proved on record that deceased B.V.D. Mani, father of deceased Jagadeshwari, gifted a silver Panchapatre and silver plate to A-1 at the time of performing customary thread changing ceremony in connection with birth of girl child and such ceremony is prevalent in their society. Such gifts are not enveloped within the ambit of `dowry’. It is also to be noticed that the High Court on the same set of evidence has chosen to acquit A-3 (the mother of A-1), whose case is no better than that of A-1. Even the unproved allegations of ill-treatment, harassment and demand for dowry and the evidence led by the prosecution are similar to that led against A-3. We agree with the High Court that the evidence against mother (A-3) is insufficient and inconsistent to convict her and, in our view, it is the same against A-1. This deficiency in the evidence proves fatal to the prosecution case. Even otherwise, mere evidence of cruelty and harassment is not sufficient to being in application of Section 304B, IPC. It is to be established that `soon before death’, deceased was subjected to cruelty or harassment by her husband for, or `in connection with demand for dowry’. In the afore-mentioned situation, the provisions of Section 304B, IPC, and Section 113B of the Evidence Act could not be attracted to hold A-1 guilty of the offence of dowry death and/or cruelty in terms of Section 498A, IPC. The prosecution, therefore, must be held to have failed to establish any case against A-1 herein.
29. Having given our careful consideration to the above- stated submissions made by the learned counsel for the parties and in the backdrop of the evidence discussed hereinabove and tested in the light of the principles of law highlighted above, it must be held that the evaluation of the findings recorded by the High Court suffer from manifest error and improper appreciation of the evidence on record. Therefore, the judgment of the High Court setting aside the order of acquittal of A-1 cannot be sustained.
30. For the reasons stated above, we are of the considered opinion that the evidence led by the prosecution in regard to the involvement of A-1 in the death of Jagadeshwari is not proved beyond reasonable doubts by the prosecution, hence, the High Court was in error in basing conviction of A-1 on weak and slender evidence appearing against him.
31. In the result, this appeal succeeds and the same is allowed. The judgment of the High Court dated 05.12.2006 passed in Criminal Appeal No.903/2000 is set aside and the order of acquittal of A-1 recorded by the learned trial Judge shall stand restored. The amount of fine imposed by the High Court upon A-1, if paid, shall be remitted to him. Narayanamurthy shall be set at liberty by the Jail authorities if his detention is not required in any other case.
