2011 ALL MR (Cri) JOURNAL 68
(KARNATAKA HIGH COURT)
D.V. SHYLENDRA KUMAR AND K.N. KESHAVANARAYANA, JJ.
State Of Karnataka Vs. Kabir Imamsab Soudagar & Ors.
Criminal Appeal No.1254 of 2005
22nd April, 2009
Petitioner Counsel: Smt. ANURADHA DESAI
Respondent Counsel: G. G. DODDAMANI , Sri. NANDAKISHORE
(A) Dowry Prohibition Act (1961), S.2 - Dowry - Parties governed by Muslim Sheriath law - Giving of household articles, new clothes and wrist watch to bridegroom accepted a customary - But payment of cash of Rs.25,000/- cannot be said to be customary - It is nothing but dowry.
There are no circumstance to indicate that the payment of cash of Rs.25.000/- was as per the custom. On the other hand the positive evidence clearly establishes that payment of money in cash was only as dowry and nothing else. In our considered opinion, even if there is a custom in any community to pay substantial money to the bridegroom either before or at or after the marriage, it would be contrary to the very object for which D.P. Act has been enacted and it defeats the very object which the Act sought to be achieved, such payments are kept outside the definition of 'Dowry' on the premise that it is customary, it would defeat the purpose of the Act, and in all cases the accused could relieve themselves from the rigor of law by describing it as customary. Therefore. such payments can never be construed as customary and it has to be accepted as dowry only. [Para 24]
(B) Penal Code (1860), S.498A - Cruelty - No evidence by parents of deceased wife that she was subjected to any kind of cruelty or harassment by her husband or by his relatives - Acquittal justified. (Para 31)
(C) Penal Code (1860), S.302 - Homicide - Death of deceased wife side her matrimonial house - She died in or during midnight - Accused husband who present in the house was under obligation to give explanation for her death - He gave no explanation whatsoever - Medical evidence recording that death was asphysoia as a result of throttling - In absence of external injury conclusion reached based on condition of internal organs - Held death was homicidal and acquittal of accused husband was improper. (Paras 41-44, 48)
Satvir Singh Vs. State of Punjab, 2001 Cri.L.J. 4625 [Para PARA5]
(2006)10 SCC 681 [Para PARA7]
Chandrappa Vs. State of Karnataka, 2008 ALL MR (Cri) 1979 (S.C.)=(2007)4 SCC 415 [Para PARA7,10]
Narayanamurthy Vs. State of Karnataka, 2008 ALL SCR 2130 : 2008(2) Crimes 365 (SC) [Para PARA 10]
S. Gopala Reddy Vs. State of A.P., (1996)4 SCC 596 [Para PARA15,17,21,22]
Satvir Singh Vs. State of Punjab, 2002 ALL MR (Cri) 194 (S.C.) =(2001)8 SCC 633 [Para PARA 18]
Appasaheb Vs. State of Maharashtra, 2007 ALL MR (Cri) 859 (S.C.) =(2007)9 SCC 721 [Para PARA 18]
K. R. Soorachari Vs. State of Karnataka, 2005 ALL MR (Cri) 2306 (S.C.)=(2005)11 SCC 214 [Para PARA25]
Trimukh Maroti Kirkan Vs. State of Maharashtra, 2006 ALL MR (Cri) 3510 (S.C.)=(2006)10 SCC 681 [Para PARA34]
Ram Gulam Chaudhary Vs. State of Bihar, 2001 ALL MR (Cri) 2384 (S.C.) =(2001)8 SCC 311 [Para PARA47]
-K. N. KESHAVANARAYANA, J. :- In this appeal filed under Sections 378 of Criminal Procedure Code, the State has questioned the legality and correctness of the judgment and order dated 31-8-2004 passed by the Presiding Officer, Fast Track Court, Bijapur in S.C. No.126/2001 acquitting the respondents/accused of the charges levelled against them for the offences punishable under Sections 498-A, 302, 201 r/w Section 149 of Indian Penal Code, (for short I.P.C.) and Sections 3, 4, and 6 of Dowry Prohibition-Act (for short D.P. Act)
The deceased Rasoolbi, daughter of PW-1 Imamsab Hussainsab Yaligar, and P.W.2 Smt. Hussainma, residents of Shahapur, Gulbarga District, was married to Accused No.1 Kabir Imamsab Soudagar, resident of Margur village in Indi Taluk about two and half years prior to 27-2-2001. Accused Nos.2 and 3 are the parents, Accused Nos.4 to7 are the brothers and Accused Nos.8 and 9 are the sisters of Accused No.1. Prior to the marriage, on the demands made by all the accused persons, P.W.1 agreed to pay Rs.25,000/-in cash, two tolas of gold, one wrist watch, new clothes worth Rs.5000/-, and household utensils worth Rs.10,000/-, as dowry. At the time of the marriage, the cash and other articles as agreed were given to the bridegroom. After the marriage the deceased started residing with her husband at Margur village along with accused Nos.2 to 9. For about one year the deceased and her husband were living cordially. During this period the deceased gave birth to a girl child. Thereafter all the accused persons started subjecting the deceased to cruelty and harassment and they were coercing her to get money and gold from her parents. The deceased had informed her parents about the further demands made by her husband and other accused persons and also about the harassment and cruelty meted out to her. However the parents of the deceased were not in a position to comply with the further demands of the accused persons. PW-3 Smt. Imambi and P.W.4 Smt. Raziabegum, who are close relatives of P.W.1, and married to A4 and A6 respectively on the same day of the marriage of deceased with A1, were also subjected to similar kind of cruelty and harassment by all the accused persons and unable to bear the harassment both of them started residing with their respective parents. About two or three days prior to 27/2/2001 A1 demanded P.W.1 over phone to send back P.Ws.3 & 4 to their matrimonial home immediately if not they would finish off the deceased. At about 2:30 a.m. on 27/2/2001, A4 Babu informed P.W.1 over phone that his, daughter (deceased) has died because of snake bite. Thereafter P.W.1 and others came to, Margur village at about 12.30 p.m. and saw the dead body of the deceased lying inside the house of A1 with bleeding from the ears mouth, back of the head and the armpit. They also noticed black injury over the neck. They further noticed that the deceased had worn only jacket and lunga and was not wearing saree. There was no indication of deceased having died because of snake bite. Suspecting fowl play in the death of his daughter, P.W.1 lodged a complaint with Zalki police as per Ex.P-1 inter-alia alleging that his daughter has been murdered by her husband and the relative of her husband. On the basis of the complaint the SHO registered the case in crime number 15/2001 against the accused persons and submitted the FIR to the Jurisdictional Magistrate and also to the superior police officers and went to the scene of occurrence. P.W.19 Babasab DSP, Indi, on receipt of the copy of FIR, visited the scene of occurrence and took up the investigation of the case from the PSI who was present there. Thereafter he conducted spot panchanama of the scene of occurrence as per Ex.P5 in the presence of witnesses and seized a plastic bottle said to contain pesticide which was lying there. As the death of the deceased had occurred within seven years from the date of marriage, on the request of the I.O., the Tahsildar, P.W.12 Jabbar Abbasali Biradar alias Patel, conducted the inquest over the dead body in the presence of the witnesses and drew a report as per Ex.P4. During inquest statements of blood relatives of the deceased were recorded. Photographs of the dead body were taken by P.W.16. Thereafter the dead body was subjected to post-mortem examination by P.W.15 Dr. Revappa. During the PM examination viscera was collected and sent to forensic examination. Awaiting report from FSL, P.W.15 submitted the PM report as per exhibit P8 deferring his opinion as to the cause of death. After the receipt of the report from FSL as per Ex.P7 to the effect that organophosphorus materials are not detected in the viscera, having regard to the observations made during the PM examination, P.W.15 issued opinion certificate as per Exhibit P9 stating that the cause of death of deceased was asphyxia as a result of throttling. During investigation P.W.19 recorded the statements of witnesses, arrested accused persons and subjected them to judicial custody. As the investigation was handed over to COD, P.W.18 N. Ramachandra, Inspector, COD, took up investigation, recorded the statements of witnesses, collected the reports and filed charge-sheet against all the accused persons for the offences noted above.
3. Upon committal of the case to the Court of Session, all the accused persons pleaded not guilty for the charges levelled against them and claimed to be tried. During the trial the prosecution examined 19 witnesses as P.Ws.1 to 19, and got marked Exhibit P1 to P13 and M.O.1. During their examination under section 313 of Cr.P.C., the accused persons denied all the incriminating circumstances appearing against them in the evidence or prosecution witnesses. The accused persons did not choose to lead defence evidence. The defence of the accused persons was one of total denial and that of false implication. After hearing both sides and on appreciation of oral as well as documentary evidence, the learned Sessions Judge, by the judgment under appeal acquitted the accused persons of all the charges levelled against them. Being aggrieved by this judgment of acquittal, the State has presented this appeal.
4. Upon service of notice of this appeal the respondent-accused have appeared through their learned counsel. We have heard the learned Additional State Public Prosecutor Smt. Anuradha Desai and Sri Doddamani, the learned advocate appearing for the respondents.
5. Perusal of the judgment under appeal indicates that the learned Sessions Judge after referring to the oral evidence of all the prosecution witnesses, though came to the conclusion that from the evidence of P.Ws.1, 2, 5, 6 and 7, it is clear that at the time of marriage a sum of Rs.25,000/-, two tolas of gold, one wrist watch valued at Rs.5,000/- and utensils for the household valued at Rs.10,000/- were given to accused No.1, in the light of the answers elicited in the cross-examination of P.Ws.1, 2, 5, and 19, held that as there is a custom in Islam community people that during the marriage 'Dahez' articles are given and at the time of 'Jummagi' function gold and cash are also provided to the son-in-law and since that is the custom prevailing in that community, giving and taking of such customary gifts would not constitute as dowry. In this regard reliance was placed on the decision of the Supreme Court in the case of Satvir Singh and others Vs. State of Punjab reported in 2001 Cri.L.J. 4625. In that view of the matter the charges for offences punishable u/Ss.3 and 4 of D.P. Act were held as not proved. In the light of admission by P.W.2 that after the death of the deceased all household utensils were brought back by her, the charge for offence punishable u/S.6 of D.P. Act was held as not proved. In respect of charge for the offence punishable u/S.498-A of IPC the learned Sessions Judge observed that evidence in this regard is not consistent, cogent and acceptable and therefore the prosecution has utterly failed to prove that the accused persons subjected the deceased to cruelty or harassment and as such the said charge is also not proved.
6. With regard to the charge for the offence punishable u/S.302, IPC. the learned Sessions Judge has held that the prosecution has failed to prove that the death of deceased was homicidal therefore the accused are not guilty of said charge. In that view of the matter the learned Sessions Judge held that the prosecution has failed to prove the guilt of the accused persons for any of the charges levelled against them therefore they are entitled to be acquitted of all the charges levelled against them.
(i) Learned Sessions Judge has committed serious error of law in holding that the cash, gold and other valuable articles given to A1 at the time of the marriage do not fall within the meaning of 'Dowry' as defined u/S.2 of D.P. Act. on the ground that they were given as per the customs prevailing in their community, though the evidence on record clearly establishes that during the pre marriage talks those articles and the cash were agreed to be given as dowry and accordingly they were given to A1 at the time of the marriage and they were accepted by him, therefore the Court below ought to have held that the accused persons are guilty of the charges levelled against them for the offence punishable under sections 3 and 4 of DP Act.
(ii) The learned Sessions Judge is not justified in holding that the evidence of P.Ws.1 to 4 with regard to cruelty and harassment meted out to the deceased is not consistent, cogent and reliable. In this regard the learned Sessions Judge has failed to notice that P.Ws.1 and 2 being the parents of the deceased, are the natural witnesses to speak in this regard and even if there are some minor contradictions and inconsistency, their testimony should not have been rejected. P.Ws.3 & 4 being the co-sisters of the deceased and since they were also residing in the same house where the deceased and her husband were residing, were eye-witnesses to the cruelty and harassment meted out to the deceased and though their testimony clearly establishes that the deceased was subjected to cruelty and harassment by the accused persons the learned Session Judge has erroneously rejected their evidence. Therefore, the learned Sessions Judge is not justified in holding that the charge for the offence punishable under section 498-A of IPC has not been proved beyond all reasonable doubt.
(iii) Though the oral evidence of the parents of deceased and the evidence of the Doctor who conducted PM examination on the dead body clearly establishes that the death of the deceased was homicidal, the learned Sessions Judge has recorded an erroneous finding that the prosecution has failed to prove that the death of the deceased was homicidal. PW examination findings and the opinion of the Doctor as to the cause of death are sufficient to hold that the deceased met homicidal death.
(iv) The learned Sessions Judge has failed to notice that as the death of the deceased occurred inside the house where she and her husband were residing and except the accused persons no other persons were residing there, the accused persons were under an obligation to explain as to how the deceased died and in the absence of any such explanation on the part of the accused either during the examination of the witnesses or during their examination under section 313 of Cr.P.C., it is reasonable to draw an inference that they were responsible for the homicidal death of the deceased, therefore the learned Sessions Judge ought to have held that the guilt of the accused persons for the offence punishable under section 302 of IPC has been proved beyond all reasonable doubt. In this regard she placed reliance on the decisions of Supreme Court reported in (2006)10 SCC 681.
(v) The conduct of the accused in giving false information to the complainant as to the cause of death of the deceased as snake bite would act as a missing link in proof of the guilt of the accused persons for the charges levelled against them. According to the learned State Public Prosecutor, the totality of circumstances prove the guilt of all the accused persons for all the charges levelled against them as such the judgment of the learned Sessions Judge is erroneous, contrary to the evidence on record and therefore is liable to be set aside.
(vi) Though this is an appeal against the judgment of acquittal, as the judgment of Court below is highly perverse, and opposed to law as also evidence on record, this Court has power to re-asses, re-appreciate, and reconsider the evidence on record and interfere with the judgment of Court below. In this behalf reliance was placed on the decision in Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 : [2008 ALL MR (Cri) 1979 (S.C.)].
(i) The power of the appellate Court and the scope of interference by the appellate Court while dealing with an appeal against the judgment of acquittal is very limited more so for the reasons that the acquittal recorded by the trial Court is the reinforcement of the presumption of innocence of the accused and, therefore, the appellate Court should be slow in interfering with the judgment of acquittal.
(ii) The finding of the learned Sessions Judge on the charges levelled against the accused persons for the offences punishable under sections 3, 4 and 6 of DP Act is sound and there is no scope for interference. In the complaint Ex.P1 nothing is mentioned about either the demand or acceptance of dowry by any of the accused persons either before or after the marriage and in connection with the marriage and therefore, the Court below is justified in holding that the charges under sections 3, 4 and 6 of the DP Act are not proved.
(iii) In addition to the glaring inconsistency and discrepancy in the evidence of P.Ws.1 to 4 with regard to the alleged cruelty, in the complaint nothing is mentioned regarding the deceased informing her parents at any time about she having been subjected to any kind of cruelty or harassment and on other hand the statement made in Ex.P1 clearly indicates that even about one month prior to the death, the deceased and her husband were cordial therefore the Court below has rightly held that the charge for offence under section 498-A of IPC has not been proved as such there are no grounds to interfere with the said finding of the Court.
(iv) Evidence on record establishes that A8 & 9 being the married daughters of A2 and 3, have been residing with their respective husbands and family, and they have been falsely roped in the case end therefore, the learned Sessions Judge is justified in acquitting them of all the charges.
(v) As no injury was found on the dead body even as per the evidence of the Doctor who conducted PM examination and also the contents of P.M. report Ex.P8 and since the said Doctor was not clear about the cause of death, the learned Sessions Judge has not committed any error in holding that the prosecution has not proved the death of the deceased as homicidal.
(vi) The prosecution has not placed any cogent evidence nor has brought out any circumstances to bring home the guilt of any of the accused persons for offence punishable under section 302 of IPC and, therefore, the learned Sessions Judge is right in acquitting the accused persons. The accused persons have a Constitutional right of silence, therefore there is no obligation on the part of accused to give any explanation as to how the deceased met her end and it is for the prosecution to prove beyond reasonable doubt that the death of deceased was homicidal and the accused were responsible for such homicidal death of deceased. Even otherwise the evidence on record clearly indicates that A1 and the deceased were residing in an independent portion while the other accused were residing in different portions with their respective spouse and therefore there was no obligation on the part of A2 to A7 to give any explanation as to how deceased died. As there is no evidence on record to show the presence of A1 in the house when the deceased died, he was not required to give any explanation as to the cause of death. In any case since the prosecution has not satisfactorily proved that the death of the deceased, was homicidal which is the important ingredient to constitute the offence under section 302 of IPC, the accused were not under any obligation to explain the cause of death and, therefore, no adverse inference can be drawn against the accused persons as such the judgment of the Court below do not call for interference.
(i) Whether the learned Sessions Judge is justified in holding that the cash and other articles given to A1 at the time of the marriage do not fall within the definition of dowry as defined under section 2 of DP Act and therefore the accused persons are not guilty of the charges levelled against them for the offences punishable under sections 3, 4 and 6 of DP Act?
(ii) Whether the learned Sessions Judge is justified in holding that the prosecution has failed to prove that the accused persons subjected the deceased to cruelty and harassment and, therefore, the charge for offence punishable under Section 498-A of IPC is not proved?
(iii) Whether the learned Sessions Judge is not justified in holding that the prosecution has failed to prove that the death of the deceased was homicidal, if so whether the prosecution has proved that the accused are responsible for the homicidal death of the deceased.?
(iv) Whether the learned Sessions Judge is justified in acquitting an the accused persons of all the charges levelled against them?
(v) Whether the judgment and order of acquittal passed by the learned Sessions Judge calls for interference by this Court?
10. No doubt this appeal is filed by the state against the judgment of acquittal passed by the learned Sessions Judge. The general principle of law regarding the power of the appellate Court while dealing with an appeal against an order of acquittal and the scope of such appeal are now well settled. The Apex Court in the case of Chandrappa Vs. State of Karnataka reported in (2007)4 SCC 415 : [2008 ALL MR (Cri) 1979 (S.C.)], after considering the earlier judgments on the point, including a judgment of Privy Council, has summarised the general principle in this regard as under:
"(i) An appellate Court hag full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(ii) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(iii) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(iv) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilt by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(vi) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
The aforesaid principles have been reiterated in the case of Narayanamurthy Vs. State of Karnataka and Anr., 2008(2) Crimes 365 (SC) : [2008 ALL SCR 2130] relied upon by the learned Advocate for accused.
11. Keeping the above principles of law in mind, we proceed to consider the case on hand to find out as to whether the judgment of acquittal recorded by the learned Sessions Judge can be sustained or is liable to be interfered with?
The deceased Rasoolbi daughter of P.Ws.1 & 2 was married to A1 and their marriage took place about two and half years prior to her death, A2 & 3 are the parents, A4 to 7 are the brothers and A8 & 9 are the sisters of A1. P.Ws.3 & 4 are the close relatives of P.W.1. They are married to A6 and A4 respectively and their marriages also took place on the same day of the marriage of deceased with A1. After the marriage the deceased lived with her husband in Margur village. She gave birth to a girl child about one year after the marriage. She died in the intervening night of 26/27-2-2007 inside the house where she was residing with her husband in Margur village.
POINT NO.1 :
13. As noticed earlier, by accepting the evidence of material witnesses, the learned Sessions Judge has held that the prosecution has proved payment of Rs.25,000/- in cash and other articles to A1 at the time of marriage and its acceptance by Al. However the learned Sessions Judge has further held that such giving and taking do not fall within the definition of dowry as according to P.Ws.1 & 2 they were given as customary gifts.
14. Dowry is a social evil prevalent in our society. As is clear from the statement of objects and reasons stated in the Bill, it is to prohibit this evil practice of giving and taking of dowry, the Parliament enacted Dowry Prohibition Act in the year 1961 itself and made even mere demand of dowry punishable. Later by Act 63 of 1984 the Act was further amended as the provisions of the Act in the original form were found not effective in containing this social evil. This is clear from the statement of objects and reasons stated in the amending Act which reads as under.
"The evil of dowry system has been a matter of serious concern to everyone in view of its ever increasing and disturbing proportions. The legislation on the subject enacted by Parliament. i.e., the Dowry Prohibition Act, 1961 and the far-reaching amendments which have been made to the Act by a number of States during the seventies have not succeeded in containing the evil. As pointed out by the Committee on the Status of Women in India, the educated youth is grossly insensitive to the evil of dowry and unashamedly contributes to its perpetuation."
"7. The curse of dowry has been raising its ugly head every now and then but the evil has been flourishing beyond imaginable proportions. It was to curb this evil, that led Parliament to enact the Dowry Prohibition Act in 1961. The Act is intended to prohibit the giving or taking of dowry and makes its 'demand' by itself also an offence under Section 4 of the Act. Even the abetment of giving, taking or demanding dowry has been made an offence. Further, the Act provides that any agreement for giving or taking of dowry shall be void and the offences under the Act have also been made non-compoundable vide Section 8 of the Act. Keeping in view the object which is sought to be achieved by the Act and the evil it attempts to stamp cut, a three-Judge Bench of this Court in L. V. Jadhav Vs. Shankarrao Abasaheb Pawar, (AIR 1983 SC 1219) opined that the expression 'Dowry wherever used in the Act must be liberally construed."
"2. Definition of 'Dowry'.- In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I.- (deleted by Act 63/84)
Explanation II.- The expression 'valuable security' has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)."
"11. The definition of the expression 'dowry' contained in Section 2 of the Act cannot be confined merely to the 'demand' of money, property or valuable security "made at or after the performance of marriage" as is urged by Mr. Rao. The legislature has in its wisdom while providing for the definition of 'dowry' emphasised that any money, property or valuable security given, as a consideration for marriage, "before, at or after" the marriage would be covered by the expression 'dowry' and this definition as contained in Section 2 has to be read wherever the expression 'dowry' occurs in the Act. Meaning of the expression 'dowry' as commonly used and understood is different than the peculiar definition thereof under the Act. Under Section 4 of the Act, mere demand of 'dowry' is sufficient to bring home the offence to an accused. Thus, any 'demand' of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of 'dowry' under the Act where such demand is not properly referable to any legally recognised claim and is relatable only to the consideration of marriage. Marriage in this context would include a proposed marriage Also more particularly where the non-fulfillment of the "demand of dowry" leads to the ugly consequence of the marriage not taking place at all. The expression 'dowry' under the Act must be interpreted in the sense which the statute wishes to attribute to it. Mr. P. P. Rao, learned Senior Counsel referred to various dictionaries for the meaning of 'dowry', 'bride' and 'bridegroom' and on the basis of those meanings submitted that 'dowry' must be construed only as such property, goods or valuable security which is given to a husband by and on behalf of the wife at marriage and any demand made prior to marriage would not amount to dowry. We cannot agree. Where definition has been given in a statute itself, it is neither proper nor desirable to look to the dictionaries etc. to find out the meaning of the expression. The definition given in the statute is the determinative factor. The Act is a piece of social legislation which aims to check the growing menace of the social evil of dowry and it makes punishable not only the actual receiving of dowry but also the very demand of dowry made before or at the time or after the marriage where such demand is referable to the consideration of marriage. Dowry as a quid pro quo for marriage is prohibited and not the giving of traditional presents to the bride or the bridegroom by friends and relatives. Thus, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection or regard, would not fall within the mischief of the expression 'dowry' made punishable under the Act.
"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 304-B should be any property or valuable security given or agreed to be given in connection with the marriage."
In Appasaheb Vs. State of Maharashtra (2007)9 SCC 721 : [2007 ALL MR (Cri) 859 (S.C.)], the Supreme Court has ruled thus:
"11. In view of the aforesaid definition of the, word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India Vs. Garware Nylons Ltd. (AIR 1996 SC 3509) and Chemical and Fibres of India Ltd. Vs. Union of India (AIR 1997 SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood."
19. Thus from the above it is clear that any property or valuable security given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties would fall within the definition of 'Dowry'. It is further made clear that the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential to attract the provisions of the Act. However, some customary payments in connection with birth of a child or other ceremonies prevalent in different societies and any demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure, cannot be termed as acceptance of or as a demand for dowry. However, even as per the definition of term: 'Dowry', in case of persons to whom Muslims Personal Law (sheriath) applies, dower and mahr do not fall within the ambit of 'Dowry'. In Webster's Encyclopedic Unabridged Dictionary, 1989 edition, meaning of term 'Dower' is given as under.
Dower : The portion of a deceased husband's real property allowed to his widow for life time. A natural gift or endowment.
20. Mahr is the Bridal-money given by the husband to his -Wife at the time of marriage. Thus what is exempted in case of Muslims are natural gift of endowment given in connection with the marriage either before or at or after the marriage and bridal money given to the wife by the husband. The Holy and The Noble QUR'AN do not make any reference to payment of 'Dahez' or 'Dowry' by the parents of bride to the bridegroom at the time of marriage.
21. As observed in Gopala Reddy's case referred to supra, it is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The Courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary.
22. In Gopala Reddy's case the Supreme Court has expressed its great shock in the alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides inspite of stringent penal provisions to prevent such instances and has indicated as to what should be the role of the Courts in this regard. The observations read thus :
"19. The alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides has always sent shock waves to the civilized society but unfortunately the evil has continued unabated. Awakening of the collective consciousness is the need of the day. Change of heart and attitude is needed. A wider social movement not only of educating women of their rights but also of the menfolk to respect and recognise the basic human values is essentially needed to bury this pernicious social evil. The role of the Courts, under the circumstances, assumes a great importance. The Courts are expected to deal with such cases in a realistic manner so as to further the object of the legislation. However, the Courts must not lose sight of the fact that the Act, though a piece of social legislation, is a penal statute. One of the cardinal rules of interpretation in such cases is that a penal statute must be strictly construed. The Courts have, thus, to be watchful to see that emotions or sentiments are not allowed to influence their judgment, one way or the other and that they do not ignore the golden thread passing through criminal jurisprudence that an accused is presumed to be innocent till proved guilty and that the guilt of an accused must be established beyond a reasonable doubt. They must carefully assess the evidence and not allow either suspicion or surmise or conjectures to take the place of proof in their zeal to stamp out the evil from the society while at the same time not adopting the easy course of letting technicalities or minor discrepancies in the evidence result in acquitting an accused. They must critically analyse the evidence and decide the case in a realistic manner."
23. In the case on hand P.Ws.1 and 2 who are the parents of the deceased in their evidence have clearly stated that it was agreed that they should pay Rs.25,000/- as dowry, two tolas of gold, a wrist watch, utensils for the household valued at Rs.10,000/- and new clothes valued at Rs.5,000/- and that they gave the cash and other articles to A1. In the cross-examination it has been elicited from them that no yadi was prepared at the time of marriage talks. They have denied the suggestion that there was no agreement to give cash of Rs.25,000/- and other articles. From the tenor of cross-examination it is clear that marriage talks took place prior to the marriage, in the house of P.Ws.1 & 2. According to these witnesses at that time it was agreed that they should pay cash and other articles as stated above to the bridegroom. Both of them have denied the suggestion that they have not given cash of Rs.25,000/- to A1. However, according to the suggestions put to them in the cross-examination, household articles were given to their daughter as dahez and new clothes to the bridegroom were given as per the custom in their community. There are no reasons to disbelieve the testimony of P.Ws.1 & 2 with regard to agreement to pay Rs.25,000/- in cash and its payment subsequently to A1 as dowry. Admittedly P.W.1 was working as conductor in KSRTC at that time. Therefore it cannot be said that he was financially incapable of paying said dowry amount. Their statement that they agreed to pay Rs.25,000/- as dowry, pre-supposes that there was a demand for the same. Of course P.Ws.1 & 2 have not stated as to who made such demand. Nevertheless they have consistently stated that the cash of Rs.25,000/-was given to A1. No doubt in the complaint Ex.P1 nothing is stated about demand for dowry, its payment by the complainant and its acceptance by A1. However, on that ground the testimony of P.Ws.1 & 2 in this regard cannot be rejected. In catena of decisions the Apex Court has observed that the complaint cannot be expected to be an encyclopaedia and it need not contain all minutest details. The Courts should not be oblivious of the fact that parents of young bride like the complainant in the present case, on seeing their loved one lying dead, would go into a state of shock and it takes longer time for them to return to normalcy. Therefore, in such circumstances, they may not readily recall all the details and while lodging complaint in such a situation it is quite possible that some details are likely to miss. It is not brought out in the cross-examination of P.Ws.1 & 2 that during the investigation they have not stated before the I.O., anything with regard to demand, agreement, payment and acceptance of dowry. Therefore, it cannot be said that for the first lime P.Ws.1 & 2 have stated these facts only during their evidence before the Court. The evidence of P.Ws.1 & 2 in this regard is corroborated on material particulars by the evidence of P.Ws.5 & 6. Both of them have clearly stated that they attended marriage talks that took place in the house of P.W.1 and during said talks it was agreed that P.W.1 should pay Rs.25,000/- in cash, two tolas gold, Rs.10,000/- towards household articles, Rs.5,000/- towards purchase of new clothes and a wrist watch to A1. There is absolutely nothing in the cross-examination to discredit their evidence. In fact during the cross-examination, there is no suggestion to them that no marriage talk took place or that none of them attended the marriage talks. Thus the facts that prior to the marriage, talk took place in the house of P.W.1 and that P.Ws.5 & 6 participated in the said talks are not disputed by the accused persons. During their examination under section 313 of Cr.P.C., the accused have merely denied the incriminating circumstance in this regard. However, they have not asserted that no marriage talk took place and that there was no demand or agreement. Therefore, there are no reasons to discard,the evidence of P.Ws.5 & 6. The Court below has accepted the evidence of P.Ws.1, 2, 5 & 6 in this regard and is on the basis of the evidence of these witnesses, the learned Sessions Judge has held that the prosecution has proved that Rs.25,000/- in cash and other article agreed were given to A1 at the time of marriage, There is no error in the said finding and having regard to the consistent evidence of the above witnesses, the finding recorded by the Court below is sound and proper.
24. However, according to the learned Sessions Judge this do not fall within the ambit of expression 'Dowry', as according to the learned Judge the cash and other articles given to A1 were customary gifts and household articles were given to the bride as Dahez as per the custom prevailing in their community. In our considered opinion, this finding of the learned Sessions Judge is perverse, and contrary to law and has the effect of defeating the very object of D.P. Act. The ordinary dictionary meaning of Dahez is giving of valuable security such as money and other articles to the bridegroom by the parents of bride at the marriage. Even if it is accepted that giving of household articles to the bride, new clothes and wrist watch to the bride groom at the time of marriage was customary in their community, by no stretch of imagination it can be said that payment of Rs.25.000/- in cash to A1 was also customary. Even according to the answers elicited in the cross-examination of material witnesses, during the 'jummagi' function which will generally be held eight days after the marriage it is customary to give new clothes and money to the bridegroom. However, P.Ws.1, 2, 5 and 6 have consistently stated that during the marriage talks it was agreed that P.W.1 should pay Rs.25,000/- to A1 and accordingly at the time of marriage it was given. It is not elicited from any one of them that the amount of Rs.25,000/- was given during 'jummagi' function. In fact according to P.Ws.1 & 2 no such 'jummagi' function was held and that they did not attend any such function. Therefore, there are no circumstance to indicate that the payment of cash of Rs.25,000/- was as per the custom. On the other hand the positive evidence clearly establishes that payment of money in cash was only as dowry and nothing else. In our considered opinion, even if there is a custom in any community to pay substantial money to the bridegroom either before or at or after the marriage, it would be contrary to the very object for which D.P. Act has been enacted and it defeats the very object which the Act sought to be achieve, such payments are kept outside the definition of 'Dowry' on the premise that it is customary, it would defeat the purpose of the Act, and in all cases the accused could relieve themselves from the rigor of law by describing it as customary. Therefore, such payments can never be construed as customary and it has to be accepted as dowry only. Of course as held by the Apex Court some customary payments in connection with birth of a child or other ceremonies prevalent in different societies and any demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure, cannot be termed as acceptance or as a demand for dowry. In the case on hand it is not the defence of the accused that amount of Rs.25,000/- was paid in connection with birth of a child or in connection with any ceremony, nor the amount was demanded and accepted on account of urgent financial stringency or to meet some urgent domestic expenses or for any other valid reasons. Therefore in our opinion the learned Sessions Judge is not justified in holding that acceptance of Rs.25,000/- by A1 was not as dowry. This finding of the learned Judge is perverse and is contrary to law and circumstances of the case.
"The finding recorded by the trial Court in our view completely ignores the cogent and reliable evidence on record which proves the case of the prosecution that dowry was demanded and paid. Such a finding ignoring relevant evidence cannot be sustained even in an appeal against acquittal."
26. Even in the case on hand also the learned Sessions Judge has completely ignored the cogent and reliable evidence on record which clearly proves the case of the prosecution that dowry was demanded and paid. Therefore such a finding cannot be sustained and is liable to be set aside.
27. As per the evidence on record amount of Rs.25,000/- was paid to A1 at the time of marriage and he accepted the same. There is no evidence on record to establish that the other accused demanded or accepted dowry in any form. Therefore, there is no evidence in proof of charges for offences punishable under sections 3, 4 and 6 of D.P. Act against A2 to A9. Though P.W.2 has admitted in her evidence that after the death of Rasoolbi, she has brought back household utensils, there is no admission that other articles and cash of Rs.25,000/- have been returned. Therefore, even the charge for offence punishable under section 6 of D.P. Act has been proved against A1. In this view of the matter we hold that prosecution has proved beyond reasonable doubt the guilt of A1 for charges punishable under sections 3, 4 & 6 of D.P. Act. Hence we answer point No.1 accordingly.
POINT NO.2 :
28. The prosecution in order to prove the charge for offence punishable under section 498-A of IPC has placed reliance on the oral evidence of PWs.1 to 4 and 9. However, P.W.9 did not support the case of the prosecution. The learned Sessions Judge holding that the evidence of P.Ws.1 to 4 is not consistent, cogent and reliable in this regard, held that the charge under section 498-A of IPC is not proved.
29. It is now well settled law that to prove the offence under section 498-A of IPC prosecution will have to establish that the husband or the relative of the husband of a woman subjected her to cruelty. Cruelty for the purpose of this section means any willful conduct of such a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health. The term 'cruelty' also mean harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
30. Reading of the oral evidence P.Ws.1 & 2 indicates that the alleged cruelty and harassment was by A1 only. From the evidence of P.Ws.3 & 4 and also from the contents of the spot mahazar it is clear that after the marriage A1, his parents and his brother started residing in separate portions. A8 & 9 are admittedly married sisters of A1 and it is in evidence on record that they were residing with their respective spouses. Even according to PWs.3 & 4, A8 & 9 were not visiting their parental house frequently. Therefore, there is absolutely no evidence against A2 to 9 in respect the charge under section 498-A of IPC, as such the Court below is justified in holding the prosecution has failed to prove this charge against A2 to 9 and we see no error in this regard.
31. In the complaint lodged at the earliest point of time as per Exhibit P1, the complainant at its beginning has stated that from the of the marriage his daughter and her husband were cordial and that she had delivered a girl child about one year and three months ago and when his daughter had come to his house about a month ago she had informed him that she and her husband are happy. However, little later it is stated therein that when his daughter had come to her parental home in the beginning she used to inform him that after about two months of the marriage her husband started demanding her to bring dowry as demanded by him in cash and gold and has been threatening with injury to her life if she informs her parents about the harassment. This later version in the complaint is not spoken to either by P.W.1 or P.W.2 during their evidence. It is not the say of P.Ws.1 & 2 that at the time of marriage he had complied only a part of the demand made by the accused. The oral evidence of P.Ws.1 & 2 indicates that the deceased and her husband were cordial and they were leading happy married life. Admittedly, deceased gave birth to a girl child within about one year and three months after the marriage. It is in the evidence of P.Ws.1 & 2 that when deceased was in the house of her parents after delivery, her husband had visited her. The evidence of P.Ws.3 & 4 indicates that they did not live with their respective husbands for long and both of them left their matrimonial homes very soon. Even according to them they were not allowed to meet the deceased. They have also not stated about deceased having been subjected to any kind of cruelty and harassment by her husband in their presence. Thus, the oral evidence of P.Ws.1 to 4 do not satisfactorily establish that the deceased was subjected to any kind of cruelty and harassment. Therefore, in our opinion the Court below has rightly acquitted the accused persons of the charge for the offence punishable under section 498-A of IPC, and it does not call for interference. Hence we answer point No.2 in the affirmative.
32. It is the specific case of the prosecution that the death of deceased was homicidal. According to the prosecution, on the fateful day while the deceased was in her house all the accused by sharing common intention, killed her by throttling and to screen themselves from the punishment, falsely represented to the parents of deceased that she died on account of snake bite while she was sleeping in the house. As there was no direct evidence, in order to prove that deceased met homicidal death and that the accused were responsible for the homicidal death of deceased, the prosecution relied upon circumstantial evidence. The circumstances relied upon by the prosecution are:
(i) Death took place during late hours of the night inside the portion of the house where the deceased and her husband used to reside.
(ii) At or about the time of death of deceased the accused No.1 being the husband of the deceased was presumed to be present in that portion of the house.
(iii) Dead body was found lying inside the house with unusual dress, black mark over the neck and bloody froth oozing from mouth and nose.
(iv) Post-mortem examination revealed that Smt. Rasoolbi had died due to asphyxia as a result of throttling.
(v) Absence of any circumstances to indicate that the death of the deceased was due to snake bite or to indicate that the death was natural.
(vi) Absence of any explanation from the accused as to the cause of death of deceased though it was within their personal knowledge.
(vii) Conduct of accused persons in giving false information to the parents of deceased as to the cause of death.
33. As held in catena of decisions of Apex Court, the normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing tow guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.
34. However, in Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006)10 SCC 681 : [2006 ALL MR (Cri) 3510 (S.C.)], the Supreme Court, has made little deviation from the above general principle in respect of cases where death of a married woman takes place inside the matrimonial house in secrecy where the assailants would have all the opportunity to plan and commit the offence at the time and circumstances of their choice. The relevant observations are found at paras 13 to 15 as under : (Paras 11 and 12 of AIR) :
"13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished."
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland Vs. Director of Public Prosecutions - quoted with approval by Arijit Pasayat, J. in State of Punjab Vs. Karnail Singh (AIR 2003 SC 3609). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duly on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads :
"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
35. The case on hand also is the one which involves death of a married woman inside her matrimonial home in suspicious circumstances. Therefore, the principles laid down in Trimukh's case have to be applied. However, the Court below has proceeded to consider the case expecting the prosecution to prove every tact beyond reasonable doubt and that the accused have no obligation to explain anything as they have a right of silence. Keeping the above principles in mind we shall proceed to consider the circumstances relied upon by the prosecution.
36. According to the contents of complaint Ex.P1. at about 2 o'clock in the midnight the complainant received telephonic information that his daughter Rasoolbi has died due to snake bite at about 10-00 p.m. in Margur village and later the complainant along with his wife and son came to Margur at about 12-00 noon, and saw the dead body of his daughter inside the house of his son-in-law and they saw bloody froth coming from the nose and mouth of the dead-body and there were no indication of snake bite, therefore, he suspected that his daughter has been killed by murderous assault and by throttling her neck. P.W.1 in his evidence has stated that on 26-2-2001 in the night at 2-30 a.m. Babu (A4) made a telephone call from Margur and said that Rasoolbi has died due to snake bite, and at about 12.30 p.m. they reached Margur and the dead body of his daughter was found in the house of accused No.1. He has further stated that there was bleeding from the ears, back of the head, and the arm pit, there was black injury on the neck, and she had worn a jacket and lunga but not a saree. P.W.2 has also reiterated these facts in her evidence. We have perused the cross-examination of P.Ws.1 & 2 carefully. Except a suggestion that Babu did not inform them over phone about the death of their daughter due to snake bite, which has been denied by the witnesses, there is nothing to disbelieve their evidence that Babu informed them over phone about the death of their daughter due to snake bite. Admittedly P.Ws.1 & 2 are residents of Doranahalli in Shahpur Tq. Gulberga District, which is at a distance of about 60 to 70 k.m. from Margur village in Bijapur District. The fact that P.Ws.1 & 2 reached the house of accused at about 12.00 noon on 27-2-2001 and later lodged the complaint is not disputed by the accused. Unless they were informed by some one either in person or by any other means, they could not have come to know about the death of their daughter. It is highly improbable for any other person except the family members of accused to inform parents of the deceased at that dead hour of night. Therefore, the statement in Ex-P1 and the evidence of P.W.1 & 2 that Babu informed them over phone about the death of their daughter deserves to be accepted. The evidence of P.W.1 & 2 that on reaching Margur village they saw the dead body of their daughter inside the house of their son-in-law is not challenged in the cross-examination.
37. P. W. 13 is the Tahasildar who conducted inquest over the dead body. The fact that he conducted inquest over the dead body of the deceased is not disputed by the accused. According to the evidence of P.W.13 P.S.I. Zalaki P.S. requested to conduct inquest over the dead body of Rasulbi, and accordingly he went to Margur village and found the dead body at the house in the garden land of accused persons, secured the presence witnesses and held inquest on the dead body from 3.00 to 5.00 p.m. According to him inquest he recorded statements of mother and brother of deceased. Only suggestion put to him in the cross-examination is that he did not record statements of any witnesses.
38. P.W.12 Jabbar was a witness during inquest. According to him in his presence inquest was conducted on the dead body of Rasulbi. There is no challenge in the cross-examination regarding his presence during inquest.
39. From the contents of spot mahazar Ex.P5., the photographs of the houses of accused Ex.P11 and from the evidence of P.Ws.3 & 4 it is clear that there were four portions and A1, 4 & 6 were residing with their spouses in three portions and their parents were residing in one portion.
40. From the above evidence of P.Ws.1, 2, 12 and 13 it is clear that the dead body of deceased Rasulbi was found inside the portion where deceased and her husband were residing. It is not the say of the persons that Rasulbi died elsewhere and from there her dead body was brought to the house. Therefore, it can be reasonably inferred that Rasulbi met her end while she was inside the portion where she was residing with her husband.
41. From the evidence of PWs.1 & 2 it is clear that Rasulbi died during the intervening night of 26th and 27th of February. According to the evidence of P.W.15 Dr. Revappa, who conducted P.M. examination, the death has occurred between 24 to 48 hours prior to post-mortem. P.M. examination was conducted between 9.00 a.m. to 10.15 a.m. on 28/2/2001. In the cross-examination of P.W.15 it is elicited from him that the deceased might have taken food about 4 hours before her death. From this it is probable that she has died in or about midnight. As the death occurred inside the house of accused, the time at which she died was within their special knowledge. Therefore, the accused were under an obligation to come out with any explanation in this regard. However, the accused during their examination under section 313 of Cr.P.C., have not stated anything in that regard. Therefore, there is no difficulty in accepting the case of the prosecution that death of Rasulbi occurred in the intervening night of 26th and 27th of February.
42. No doubt as per the evidence of P.W.15 during post-mortem examination, he did not notice any external injuries on the dead body Therefore, the evidence of P.Ws.1 & 2 regarding presence of external injuries on the dead body does not get corroboration from medical evidence. However, on that ground the evidence of P.Ws.1 & 2 cannot be rejected Nevertheless the evidence of P.W. 15 and his findings during P.M. examination establishes that death of Rasulbi was due to asphyxia as a result of throttling. According to the doctor, on dissection of dead body he noticed congested neck muscles though Hyoid bone was intact, membranes of brain, mucosa of larynx and trachea, both lungs, mucosa of mouth, pharynx and Oesophagus had been congested. Liver, Spleen and kidney were found congested. During P.M. examination he preserved viscera and sent the same for examination and after the receipt of chemical examination of viscera he has furnished his opinion as to the cause of death as asphyxia as a result of throttling. During the cross-examination the defence counsel has tried to elicit about the probable external marks and injuries that may occur in case of throttling with hand. However, absence of any such external marks, impressions and injuries cannot by itself be a ground to reject his evidence regarding cause of death as his opinion is based on the condition of vital internal organs.
43. According to Modi's Medical Jurisprudence and Toxicology, 23rd edition at page 575, to which our attention is drawn by Smt. Anuradha Desai, learned Additional State Public Prosecutor, Throttling is one of the types of Strangulation. Strangulation is defined as the compression of the neck by a force other than hanging. When constriction is produced by the pressure of fingers and palms upon throat results in throttling. At page 576, the symptoms are stated thus :
"If the windpipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible and may die instantly. If the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death."
At page 579 external appearance in cases of death due to Asphyxia are noted as under:
"The face is puffy and cyanosed and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and pupils are dilated. Petechiae are seen in eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostrils and some times, pure blood issues from the mouth, nose and ears especially if great violence has been used. The tongue is often swollen, bruised. protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluids."
At page 580 regarding the internal appearance it is noted as under :
"The larynx and trachea are congested and contains frothy mucus. x x x x x x x The lungs are usually markedly congested, showing haemorrhagic patches and petechiae and exuding dark fluid blood on section. x x x x x Bronchial tubes usually contain frothy, bloodstained mucus. The right side of the heart is full of dark fluid blood, and the left empty. The right ventricle is found contracted and empty like the left, if the heart had continued to beat after the stoppage of respiration. Some times both the cavities are found full, if the heart stopped during diastole. The abdominal organs are darkly congested. The brain is also congested and shows petechial haemorrhages."
44. As per the contents of P.M. report Ex.P8, face was swollen and bluish in colour shave lather froth mixed with blood was seen around the mouth and nostrils. Bloody discharge from ears present. On dissection of neck, muscles were found congested. Membranes found congested. Both Larynx and Trachea-mucosa congested. Both lungs had been congested. Mucosa of mouth, pharynx and oesophagus was congested. Both the kidneys were found congested. All the external and internal appearances during post-mortem examination by P.W.15 would clearly suggests that it was a case of death due to asphyxia as a result of throttling. The absence of external marks, impressions, and injuries has not created any doubt as to the cause of death. Ever without leaving any external impressions and injuries, throttling could possibly be caused. It all depends on the ingenuity of the assailant/s. No doubt the prosecution has to prove that the death was homicidal to attract the offence punishable under section 302, IPC. However as noted earlier in a case where the death of a married woman takes place in secrecy inside her matrimonial home, the inmates of that house are under a legal obligation to explain as to how the death occurred at it will be within their personal knowledge and if they fail to come out with any explanation, an inference should be drawn against such persons that they were responsible for the death of such woman. In this case, none of the accused have come out with any explanation either during examination of prosecution witnesses or during their examination under section 313, Cr.P.C. However having regard to the fact that in the portion where the death of the deceased occurred, only deceased and her husband were living and other accused persons were residing in other portions and since the death occurred during midnight, it is reasonable to infer that Accused No.1 being her husband, was the only other person present inside the house when the death occurred. It is not the deference of A1 that during that night he was not in the house. Therefore, A1 alone had the personal knowledge about the cause of death of the deceased and a duty to explain it if it was in any other way, other than in the manner the prosecution has propounded and has supported it by cogent circumstantial evidence, was on A1.
45. Under these circumstances, it cannot be inferred that A2 to A9 also had personal knowledge as to how the death of deceased occurred. There is no circumstance by which this Court could draw an inference regarding the presence of A2 to A9 inside the portion where deceased was found dead at the time of her death so as to impute personal knowledge to them about the cause of death requiring them to offer explanation. Therefore non-explanation by A2 to 9 cannot be a ground to draw adverse inference against them. However A1 was under an obligation to explain as to how his wife died during that midnight A1 has not come out with any explanation. It is not his case that the death of his wife was natural, nor it is the defence of accused that the deceased was suffering from any serious ailment. Nor it is his defence that some body else gained entry into the house during that hour and killed his wife. From the suggestion put to P.Ws.1 & 2 in the cross-examination it is clear that none of the accused gave information that the deceased died due to snake bite. From this it is clear that even according to A1 his wife did not die due to snake-bite. During the cross-examination of P.W.15 an attempt is made to suggest that in case of Asphyxia, Syncope will be found. According to the doctor one of the causes of syncope is shock. He admits that emotional excitement may lead to shock resulting in syncope. Mere eliciting general answers would not be of any help unless existence of such circumstances is brought on record. As A1 was the only other person normally expected to be present in the house at the time of death of deceased and since he has not disputed the said fact, he must presume to know as to how his wife died. Whether the deceased suffered syncope either due to shock or excitement must be known only to A1. However he has not come out with any such statement, Therefore, no sustenance could be drawn from the above answers elicited from P.W.15.
"21. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court."
"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 circumstances which indicates that he is responsible for commission of the crime." (underlining is supplied by us)
47. In Ram Gulam Chaudhary Vs. State of Bihar, (2001)8 SCC 311 : [2001 ALL MR (Cri) 2384 (S.C.)] the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference.
48. In the case on hand also, during his examination under Section 313 of Cr.P.C. Accused-1 except denying all the incriminating circumstances, has not come out with any explanation as to how his wife died. From the proved facts it is clear that the death of deceased was homicidal and her death occurred in or about midnight inside the portion where deceased and A1 were residing. From the proved circumstances and in the absence of any specific defence, a reasonable inference can be drawn that, apart from the deceased, A1 was the only other person present inside that portion of the house when the deceased met her end. Therefore, A1 has the personal knowledge as to how his wife died. Therefore, he was under an obligation to offer an explanation in this regard. However, he has not given any explanation. He seems to think that he can keep quiet and need not give any explanation. Therefore, an adverse inference has to be drawn against Accused-1. The learned Sessions Judge, in our opinion, has committed serious error of fact and law in holding that the prosecution has not proved the death of deceased as homicidal, though the evidence on record clearly establish that the death of deceased was homicidal. The Court below has not at all considered the various facts and circumstances from which reasonable inference about the complicity of Accused-1 in the homicidal death of deceased could be drawn. Therefore, the judgment of acquittal of A1, passed by the trial Court, in our opinion is perverse and suffer from illegality as it has completely omitted to take into consideration several proved facts and circumstances, which are sufficient to hold Accused-1 guilty of the charge under Section 302 of IPC. In this view of the matter, judgment of the learned Sessions Judge acquitting Accused-1 of all the charges is liable to be set aside. However, the judgment of the Court below acquitting A2 to A9 do not suffer from any illegality as such, it does not call for interference. Accordingly, we answer Points-3 to 5, and proceed to pass the following:
ORDER Appeal filed by the State is allowed in part. The judgment and order of acquittal of Accused No.1 for the offences punishable under Sections 3, 4 and 6 of D.P. Act and Section 302 of IPC is hereby set aside. Accused No.1 is convicted for the said offences. Bail and surety bonds of Accused-1 are ordered to be cancelled. The appeal against Accused-2 to 9 is dismissed. The judgment of the Trial Court acquitting Accused-2 to 9 of all the charges and acquitting Accused-1 of the charge for offence under Section 498-A of IPC is hereby affirmed. Bail and Surety bonds of Accused-2 to 9 are ordered to be discharged. Order regarding sentence against Accused-1 shall be passed after hearing regarding sentence.DVSKJ : KNKJ22-4-2009 Crl. Appeal No.1254 of 2005
ORDER ON SENTENCE Heard Sri S. S. Mamdapur, learned counsel appearing for Sri G. G. Doddamani, on behalf of the accused, regarding sentence, A-1 has been found guilty of the offences punishable under Sections 3, 4 & 6 of the D.P. Act and Section 302, IPC. For the offence punishable under Section 302, IPC, the sentence prescribed under the Statute is either death sentence or imprisonment for life. It is well settled law that only in rarest of rare cases, death sentence should be imposed. Having regard to the facts and circumstances of the case on hand, we are of the opinion that this is not a case which falls within the category of 'rarest of rare' case warranting imposition of death sentence. Therefore, the only other alternative is to impose sentence of imprisonment of life in respect of the offence punishable under Section 302, IPC. For the offence punishable under Section 3 of the D.P. Act, the punishment prescribed is imprisonment for a term which shall not be less than five years and fine of Rs.15,000/- or the amount of the value of such dowry, whichever is more. For the offence punishable under Section 4 of the D.P. Act, the punishment prescribed is minimum imprisonment for a period of six months and fine which may be extended up to Rs.10,000/-. Section 6 of D.P. Act prescribes a minimum punishment of imprisonment for a period of six months with fine of Rs.5,000/-. Taking into consideration the facts and circumstances of the case and also the time at which the offence took place and having regard to the fact that we have reversed the judgment of acquittal passed by the trial Court, we are of the considered opinion that this is a fit case in which A-1 should be sentenced for the minimum period of imprisonment and fine prescribed scribed for the offence punishable under the D.P. Act. In view of the above, we proceed to pass the following sentence :SENTENCE Accused No.1 is sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.2,000/- (Rupees two thousand only) for the offence punishable under Section 302, IPC. In default to pay fine, the accused No.1 shall undergo further rigorous imprisonment for a period of three months. The accused No.1 is further sentenced to undergo rigorous imprisonment for a period of five years and also to pay a fine of Rs.15,000/- [Rupees fifteen thousand only] for the offence punishable under Section 3 of the D.P. Act; six months rigorous imprisonment and fine of Rs.5,000/- [Rupees five thousand only] for the offence punishable under Section 4 of the D.P. Act; and six months rigorous imprisonment and fine of Rs.5,000/- [Rupees five thousand only] for the offence punishable under Section 6 of the D.P. Act. In default to pay the above fines, the accused No.1 is directed to undergo rigorous imprisonment for the periods of three months, two months and two months for the offences under Sections 3, 4 and 6 of the D.P. Act respectively. Substantial sentences shall run concurrently. Substantial sentences shall run concurrently. Out of the fine amount, a sum of Rs.20,000/- [Rupees Twenty thousand] shall be paid to the father of the deceased, as compensation. Accused No.1 is entitled for set off of the period of custody, if any, during the trial. A free copy of this judgment shall be furnished to the Accused No.1. Since the accused No.1 is on bail and as his bail bonds are cancelled, he is directed to surrender before the learned Sessions Judge within one month from today. Upon such surrender, the learned Sessions Judge shall commit the accused No.1 to prison to serve the sentence ordered. In case accused No.1 fails to surrender himself within the above period, the learned Sessions Judge shall take steps to secure his presence and commit him to prison.