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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24TH DAY OF MAY 2018

PRESENT

THE HON’BLE MR. JUSTICE ARAVIND KUMAR

AND

THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

CRIMINAL APPEAL.No.1269/2012 C/W

CRIMINAL APPEAL Nos. 1316/2012 AND 1317/2012

IN CRIMINAL APPEAL No. 1269/2012

BETWEEN

RANGANATHA,
S/O THIMMABOVI,
AGED ABOUT 36 YEARS,
AGRICULTURIST,
R/O RAMAGHATTA,
HANDANAKERE HOBLI,
C.N.HALLI TALUK,
TUMAKURU DISTRICT.

(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BENGALURU)
…APPELLANT

(By Sri. HASMATH PASHA, ADVOCATE)

AND
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STATE OF KARNATAKA,
BY HANDANAKERE POLICE STATION,
TUMAKURU DISTRICT.

(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
…RESPONDENT

(By Sri. VIJAYAKUMAR MAJAGE, ADDL. SPP)

THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED
08.06.2012/11.06.2012 PASSED BY THE FAST TRACK
COURT – III, TUMAKURU IN S.C.NO. 144/2009 –
CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 498(A) AND
304(B) OF IPC AND SECTIONS 3, 4 AND 6 OF DOWRY
PROHIBITION ACT.

IN CRIMINAL APPEAL No. 1316/2012

BETWEEN

STATE OF KARNATAKA
BY HANDANAKERE POLICE
…APPELLANT

(By Sri. VIJAYAKUMAR MAJAGE, ADDL. SPP)

AND

SRI. RANGANATHA,
S/O THIMMABOVI,
AGED ABOUT 39 YEARS,
AGRICULTURIST,
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R/O RAMAGHATTA,
HANDANAKERE HOBLI,
C.N.HALLI TALUK – 572 119.
…RESPONDENT

(By Sri. I.S. PRAMOD CHANDRA, ADVOCATE)

THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 378(1) AND (3) CR.P.C., PRAYING TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER DATED 08.06.2012 PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT – III,
TUMAKURU IN S.C.NO. 144/2009 – ACQUITTING THE
RESPONDENT/ ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 AND 201 OF IPC.

IN CRIMINAL APPEAL No. 1317/2012

BETWEEN

STATE OF KARNATAKA
BY HANDANAKERE POLICE
…APPELLANT

(By Sri. VIJAYAKUMAR MAJAGE, ADDL. SPP)

AND

SRI. RANGANATHA,
S/O THIMMABOVI,
AGED ABOUT 39 YEARS,
AGRICULTURIST,
R/O RAMAGHATTA,
HANDANAKERE HOBLI,
C.N.HALLI TALUK – 572 119.
…RESPONDENT
(By Sri. I.S. PRAMOD CHANDRA, ADVOCATE)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 377 CR.P.C., PRAYING TO MODIFY THAT
PART OF THE JUDGMENT AND ORDER DATED
08.06.2012 PASSED BY THE PRESIDING OFFICER,
FAST TRACK COURT – III, TUMAKURU IN S.C.NO.
144/2009 AND IMPOSE ADEQUATE SENTENCE ON
THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498A, 304B OF IPC
AND SECTIONS 3, 4 AND 6 OF DOWRY PROHIBITION
ACT.

THESE CRIMINAL APPEALS HAVING BEING
HEARD AND RESERVED, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
SREENIVAS HARISH KUMAR J., PRONOUNCED THE
FOLLOWING :
JUDGMENT

The judgment dated 08.06.2011 passed in

S.C.No.144/2009 on the file of Fast Track Court – III,

Tumakuru has given rise to these three appeals. The

learned Sessions Judge found accused guilty of the

offences punishable under Sections 498-A, 304-B of IPC

and Sections 3, 4 and 6 of Dowry Prohibition Act, and

sentenced him for each of the offences. He has

acquitted the accused of the offences punishable under

Section 302, 201 IPC.

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2. Accused has preferred the appeal 1269/2012

challenging the judgment in so far it relates to

convicting and sentencing him for the offences

punishable under Section 498-A, 304 B IPC and

Sections 3, 4 and 6 of Dowry Prohibition Act.

3. The State has preferred two appeals. Appeal

1316/2012 is filed under Section 378 (1) of Cr.P.C.

questioning the correctness of acquitting the accused of

the offences punishable under Section 302, 201 IPC. In

the appeal 1317/12, the State has questioned the

inadequacy of the sentence imposed on the accused for

the offences under Section 498-A, 304-B IPC and

Section 3, 4 and 6 of Dowry Prohibition Act and has

further prayed for imposing maximum sentence

awardable for these offences. All these appeals are

disposed of by a common judgment. The prosecution

case in brief is as follows:

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4. On 28.11.2008, one Siddha Bovi made a report

to the police as per Ex.P.2 stating that when he

performed the marriage of his daughter Shyla with the

accused about five years ago, he gave cash of

Rs.5,000/- and a gold ring weighing 5 grams to the

accused before the marriage. He also gave a pair of ear

studs and jumki (hangings) to his daughter Shyla. The

husband and wife lived cordially for about 2 years after

the marriage. Whenever his daughter came to his

house, she used to complain of ill treatment to her by

the accused for the sake of additional dowry. About six

months prior to lodging of the complaint, he gave

Rs.5,000/- to the accused. On 23.11.2008 at about

8.00 p.m., his daughter telephoned to him and told that

her husband was demanding money again . On

27.11.2008 at about 8.00 a.m. a cousin of accused viz.,

Ananda came and told him that Shyla was not being

seen in the village since last night and enquired him

about her. Immediately he went to Ramaghatta i.e, the
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village of the accused and searched for his daughter till

evening. Again on 28.11.2008 at about 6.00 a.m.

Ananda telephoned and told him that dead body of

Shyla was found floating in a pond called

Gorasanakatte. He went to that place immediately with

his relatives. He suspected the involvement of the

accused in the death of his daughter as he found injury

mark on her neck. Therefore he reported this incident

to the police who held investigation and charge sheeted

the accused for the offences punishable under Section

498-A, 304-B and 302 and

Section 201 IPC and Section 3,4 and 6 of Dowry

Prohibition Act.

5. The learned Sessions Judge appreciated the

evidence both oral and documentary, and came to a

conclusion that prosecution was not able to prove the

offences punishable under Sections 302 and 201 of IPC

charged against the accused and therefore acquitted
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him of these offences, but he also held that prosecution

case as regards other offences punishable under Section

498-A and 304 IPC and Section 3, 4 and 6 of the Dowry

Prohibition Act had been proved by the prosecution and

therefore convicted the accused for these offences.

6. Assailing the findings of the learned Sessions

Judge, the counsel for the appellant in

Crl.A.No.1269/2012 argued that the trial court’s

judgment convicting the accused for the offences

punishable under Section 498-A 304B IPC and Section

3, 4 and 6 of Dowry Prohibition Act was a result of

improper appreciation of evidence. Absolutely there is

no evidence to show that deceased was subjected to

cruelty in connection with demand for dowry soon

before her death. Money of Rs.5,000/- and a ring given

to the accused at the time of marriage was nothing but

customary gifts. PW-2 and 3 being the parents of the

deceased deliberately created a story that there was a
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demand for additional dowry of Rs.10,000/-. Their

evidence is unbelievable if assessed in right perspective.

The complainant i.e., PW.2 has clearly stated in Ex.P.2

that his daughter and son-in-law lived cordially for two

years after the marriage. If the deceased was subjected

to ill-treatment thereafter in connection with demand

for dowry, the prosecution should have first proved

demand for additional dowry and consequent

harassment of the deceased. The best witnesses to

speak with regard to harassment or ill-treatment meted

out to the deceased were the neighbours of the accused

at Ramaghatta village and none of them was examined

by the prosecution. The evidence given by PW-2 to 6

cannot be believed without corroboration from

independent witnesses. The trial court acquitted the

accused of the offence under Section 302 IPC. The

deceased suffered homicidal death. Dead body was

found floating in a pond. When the trial court came to

conclusion that there was no evidence connecting the
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accused with homicidal death of the deceased, its

further conclusion that death was due to ill-treatment of

the deceased in connection with dowry demand would

not stand to any reason. There was no demand for

dowry, the deceased wanted to come over to Bangalore

and settle down there. The accused refused to leave the

village and therefore there was incompatibility between

the accused and the deceased. The accused has

explained the circumstances under which his wife might

have died and his innocence in her death. The trial

court’s conclusion to find the accused guilty of the

offences punishable under Section 489A 304B of IPC

and Section 3,4 and 6 of Dowry Prohibition Act was

nothing but an error in appreciation of evidence and

application of law. Relying upon a division bench

judgment of this court in State of Karnataka Vs. Dr.H.A.

Ramaswamy (ILR 1996 Kar.1107), he argued for

allowing the appeal and setting aside the judgment of
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the trial court relating to conviction of the accused for

the above said offences.

7. In Crl.1316/2012, the learned Addl. S.P.P.

argued that the evidence given by the witness P.W.2, 3

and 4 prove that accused had committed murder of his

wife. PW-5 has stated very clearly that he noticed an

injury on the neck of the deceased. PW-6 has deposed

that accused throttled the deceased to commit her

murder. The evidence of these witnesses is

corroborated by the evidence of the doctor examined as

PW-12. Ex.P.9 is the opinion given by PW-12. The

learned Sessions Judge has not appreciated the

evidence of these witnesses. When the trial Judge held

that deceased did not commit suicide and that it was

homicide, it should have been held that it was the

accused who committed the murder of his wife.

Therefore acquitting the accused of the offence under
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Section 302 was not proper and argued for convicting

the accused for this offence also.

8. In Crl.A.No.1371/2012, the learned Addl. S.P.P.

argued that trial court erred in awarding inadequate

sentence for the offences punishable under Section 498-

A 304B and Sections 3, 4 and 6 of Dowry Prohibition

Act that have been proved against the accused. He

submitted that the trial court should have awarded

maximum sentence prescribed under law.

9. The learned counsel appearing for the

respondent/accused in Crl.No.1316/2012 and

1317/2012 argued that Sessions judge had rightly

arrived at a conclusion that there was no evidence for

holding accused guilty of offence under Section 302 IPC.

There are no eye witness to the incident. The

prosecution should have proved the circumstances to

connect the accused with the said offence. The evidence

given by PW-2 to 4 cannot be relied upon to hold the
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accused guilty of this offence. The opinion of the doctor

cannot be based to convict the accused. The evidence of

PW-2 to 4 only show their suspicion that accused

might have committed the murder. This suspicion does

not take the place of legal proof. Therefore the trial court

rightly came to conclusion that accused should be

acquitted of this offence. This portion of the judgment

cannot be disturbed to hold the accused guilty of the

offence under Section 302 IPC.

10. In the light of points urged by the learned

counsel during their arguments, the following points

can be formulated for discussion:

i. Has the learned Sessions Judge

committed an error both on facts and law

in acquitting the accused of the offence

under Section 302 IPC?

ii. Has the learned Sessions Judge

erroneously held that the accused is
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guilty of offences punishable under

Sections 498-A and 304B IPC and

Section 3,4 and 6 of Dowry Prohibition

Act?

iii. If the answer to point NO.2 is in negative,

are there grounds to enhance the

sentence for the offences punishable

under Sections 498-A and 304B IPC and

Section 3,4 and 6 of Dowry Prohibition

Act?

iv. What order?

Point No.1:

11. The learned trial court Judge has held that

death of the wife of the accused was homicidal . He has

referred to the evidence given by the doctor examined as

PW-12 to come to this conclusion. He has ruled out the

possibility of suicide by logically concluding that if a

person commits suicide by drowning in water, there are
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chances that the water will fill into the stomach and it is

impossible that the hyoid bone will break. P.W-12 did

not find water in the stomach, but found fracture of

hyoid bone. Moreover there was injury mark on the

neck. He also held that investigation officer did not

investigate about the homicidal death and therefore

there is no legal evidence either direct or indirect to

connect the accused with the murder of deceased Shyla.

He held that the ornaments worn by the deceased were

intact on the dead body and therefore it was not a case

of murder for robbing the valuable articles. Ex.P.8 does

not reveal that she was subjected to rape prior to her

death. Therefore the possibility of somebody

committing her murder after committing rape can also

be ruled out. In his opinion there are circumstances

that point at the accused to suspect that he might have

committed murder. But suspicion cannot be considered

as legal proof and merely on presumption the accused

cannot be convicted for the offence of murder.
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12. The evidence thus appreciated by the learned

Sessions Judge in our opinion appears to be proper. On

reappraisal of evidence, what we find is that the

prosecution case as regards homicidal death of the

deceased is based on circumstantial evidence. Indeed,

the testimony of PW-12, the doctor who conducted

autopsy, establishes homicidal death; his opinion is

that death was due to asphyxia as a result of

compression of neck. There are no eye witnesses.

None of PW-2 to PW-9, the prime witnesses speaks

about a circumstance or circumstances pointing at the

accused; rather what can be gathered from their

evidence is their suspicion about involvement of

accused in the death of his wife. At least there is no

witness from Ramagatta village who saw the accused

being with his wife before the actual incident had

occurred. In Ex.P.7, the inquest, it is clearly recorded

that no body was with the deceased at about 12 noon
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on 26.11.2008 when she left the house. Therefore we

also come to the conclusion that there is no evidence to

hold the accused guilty of offence under Section 302 IPC

and thereby endorse the findings of the learned trial

court judge to answer point No.1 in negative.

Point No.2:

13. The learned judge of the trial court has taken

two views as regards demand for dowry. In regard to

cash and jewellery given at the time of marriage, he has

held that they were customary gifts; and in regard to

second part relating to demand for additional dowry of

Rs.10,000/- two years after the marriage, his

conclusions are that PW-2 to PW-11 testify that there

was such a demand and consequently the deceased was

being harassed. He has ruled out the probability in the

defence version, but holds that since death occurred

unnaturally within seven years of marriage and that

there are circumstances indicating that the accused
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might have strangulated his wife though there is no

legal proof, the accused could be held guilty of offences

under Sections 498A, 304B IPC and Sections 3,4 and 6

of Dowry Prohibition Act. The Sessions Judge has also

drawn presumption under Section 113-B of Indian

Evidence Act.

14. We concur with the findings of the Session

Judge with regard to first part that the money and the

jewellery given before or at the time of marriage were

just customary gifts. If we assess the evidence of the

prime witnesses, particularly of PW-2, 3, 5 and 6, we

also arrive at the same opinion. But as regards second

part, we find it difficult to agree with the findings of the

trial court. The reasons being that whenever there are

allegations against the husband or his parents or other

accused about ill-treatment meted out to wife in

connection with demand for dowry, there must be

consistent and cogent evidence. Usually in a case of
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this nature, the witnesses are relatives of the deceased;

and it is not the rule that their evidence should never be

believed at all because of their close relationship with

the deceased. It is also a point to be borne in mind that

these witnesses have a tendency to exaggerate the

events and for this reason strict scrutiny of evidence is

essential.

15. Before we reappraise the evidence with regard

to harassment of the deceased for additional dowry after

the marriage, we think it necessary to analyze the scope

of Section 498A and Section 304B IPC. Section 498A

IPC postulates that if a woman is subjected to cruelty

either by her husband or relative of a husband, the

husband or such relative shall be punished with

imprisonment extending upto three years and fine.

There are two explanations for the term ‘cruelty’. What

amounts to cruelty according to explanation (a) is wilful

conduct of the husband of a woman or his relative
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driving a woman to commit suicide, or causing grave

injury or danger to her life, limb or health, either

physical or mental. Explanation (b) is related to

harassing a woman with a view to coercing her or any

person related to her in connection with unlawful

demand for any property or valuable security, or her

failure to meet such a demand. Demand for dowry is

unlawful and therefore explanation (b) is related to

Section 304B IPC; they go together or Section 498A

merges with Section 304B, if harassment is in

connection with demand for dowry. At times,

explanation (b) of Section 498A does not merge with

Section 304B of IPC, if harassment is not in connection

with demand for dowry and if demand can be related to

some other purpose. Presumption available under

Section 113B can be raised only if it is a dowry death as

defined under sub-section (1) of Section 304B IPC, but

presumption as to dowry death cannot be attached

unless there is proof with regard to cruelty. In Sections
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304B IPC and Section 113B of Indian Evidence Act, the

expression employed is “it is shown that soon before her

death”. It is therefore clear that proof as regards cruelty

is essential. Division bench of this court in State of

Karnataka Vs. Dr. H.A. Ramaswamy (ILR 1996

Kar.1107) has held as below:

“Cruelty for or in connection with dowry soon
before her death will have to be established
as a fact. In a case where death is shown to
be of the type referred to in Section 304-B
then there would not be any need to have
recourse to the presumption, as cruelty of the
type referred to in that Section will have to be
proved even to attract that presumption.
Another point to be noted is cruelty for or in
connection with dowry must be shown soon
before the death. It is not sufficient if cruelty
of the type referred to in the Section at some
point of time much prior to the death is
proved.”

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16. Now in the instant case, no doubt the death of

the wife of accused took place within seven years of

their marriage and it was not natural. The first two

requirements of Section 304 B IPC are present, but

there is no evidence as regards subjecting the deceased

to cruelty for the purpose of dowry. The learned

sessions judge has believed the evidence of PW-2 to PW-

9 and PW-11. But scrutinizing their evidence, we find

that their evidence as regards cruelty or harassment is

insufficient. Through they have stated that the accused

again demanded Rs. 10,000/- and in that connection

he ill treated his wife, their evidence cannot be believed.

The best witness to speak about ill treatment on the

deceased was some body form the neighbourhood of the

accused. None of them is examined. It is not as if the

evidence of close relatives of deceased cannot be

believed, but their evidence must be trust worthy. Here

what can be apparently made out is involvement of two

persons, viz Nagararajappa and Govindappa a retired
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Assistant Police Sub-Inspector in registration of FIR.

PW-2 and PW-3 have denied the suggestion given to

them about Govindappa’s involvement, and the learned

trial court judge has observed that evidence of witnesses

should be appreciated on the basis of their educational,

social and economical back ground, to believe their

evidence. PW-2 and PW-3 are the parents of the

deceased and it is quite natural that they have denied

Govindappa’s involvement. But evidence of PW4 and

PW5 cannot be brushed aside. PW4 has given an

evasive answer when it was suggested to him that entire

complaint was made ready at the instance of

Govindappa. An evasive answer is indicative of an

attempt to suppress a particular fact. The answers

given by PW-5 in the cross examination disclose that he,

PW-2 Sidda Bhovi and one Nagaraj went to police

station at 1.00 p.m., and he states that accused was

also present at the police station and at that point of

time, some other persons of the village were also present
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in the police station, and a panchayat came to be held

which went on up to 6 pm. He further states that CPI

Ravi Prasad advised them to settle the matter among

themselves and police had asked the accused and his

parents to give Rs.2,00,000/- to PW-2 Sidda Bhovi. He

has admitted to these suggestions. These are not stray

answers. PW-5 is another son-in-law of PW-2 and is

employed at Bengaluru. He may have denied other

suggestions, but there is his another clear answer that

Govindaiah got the complaint written from Nagarajaiah

and obtained signature of PW-2 Sidda Bhovi on it.

Therefore the truth in the complaint cannot be believed,

and it is for this reason that oral testimony of PW-2 to

PW9 and PW11 is difficult to be believed.

17. The learned Sessions Judge has given a

strange reason for discarding the compromise move in

the police station. He has ascribed the reason that non

compoundable offences cannot be compromised. We
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are unable to agree with this reason. There is no scope

for compounding of the offences alleged against the

accused once the charge sheet is filed, but any move for

compromise or settlement before registration of

complaint need not be disbelieved, if evidence is there to

that effect. Hence, from the available evidence, an

inference can be drawn that failure of compromise

might have resulted in a complaint in the nature of

dowry death being filed.

18. Though the defence has made a feign attempt

to introduce a different cause for the death, its

improbability cannot be a reason for fastening

presumption under Section 113B of the Indian Evidence

Act. The prosecution evidence is initially unbelievable.

There is no proof for subjecting the deceased to cruelty

soon before her death. Therefore we arrive at a

conclusion that the trial court has erred in holding the

accused guilty of offences punishable under Sections
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498A and 304B IPC and Sections 3,4 and 6 of Dowry

Prohibition Act. Point No.2 is answered in the

affirmative.

Point Nos.3 and 4:

19. Obviously in view of point No.2 being

answered in affirmative, there is no scope for enhancing

the sentence for the offences punishable under Sections

498A and 304B IPC and Sections 3, 4 and 6 of Dowry

Prohibition Act, rather the accused deserves acquittal of

these offences and hence we proceed to pass the

following:

ORDER

i. Criminal Appeal No.1269/2012 is hereby

allowed. Judgment passed in

S.C.No.144/2009 by Fast Track Court-III,

Tumakuru dated 8.6.2011 in so far as it

relates to convicting the accused for the
27

offences punishable under Section 498A and

Section 304B IPC and Sections 3,4 and 6 of

Dowry Prohibition Act is hereby set aside,

the accused is acquitted of these offences.

ii. Criminal Appeals Nos.1316/2012 and

1317/2012 are hereby dismissed.

iii. Accused shall be released from

imprisonment forthwith if his presence is not

required in any other case.

Sd/-

JUDGE

Sd/-

JUDGE

sd