Karnataka High Court
State of Karnataka By Mahila Police vs Gnanendra And Ors
Court:Karnataka High Court
Crl. A. 332/2000
Bench: JUSTICE C Ullal, V Jagannathan
State of Karnataka By Mahila Police vs Gnanendra And Ors On 23 Mar 2006
1. The State has questioned a visualisation and sequence of exculpation upheld by a schooled Sessions Judge, Mysore, antiquated 15-9-1999 acquitting a respondents herein of a offences punishable underneath Sections 3 and 4 of a Dowry Prohibition Act, 1961, Sections 498-A and 302 review with Section 34 of a IPC. Though there were 4 indicted persons initially, a second accused, namely, a mom of initial indicted died and hence, a box was proceeded opposite usually a other 3 indicted who are respondents 1 to 3 before this Court.
2. The assign opposite a indicted persons was that a initial respondent being a husband, second respondent and third respondent being a brother-in-law and sister-in-law of defunct Kavita, along with defunct Rukminiamma who was a mother-in-law of Kavita, subjected a pronounced Kavita to vicious diagnosis in tie with direct of dowry of Rs. 50,000/- along with jewels, and successive direct of Rs. 3 lakhs as dowry and in serve to this, a indicted persons also gave hurt to a defunct Kavita and to top it all, a father of defunct Kavita, that is a initial respondent before us, was carrying wrong attribute with a third respondent-Shobha and this was witnessed by defunct Kavita on a night of a fatal day and following this, a indicted persons set glow to Kavita, inasmuch as, a respondents before us hold defunct Kavita and defunct Rukminiamma, a mother-in-law of Kavita caused several bake injuries on Kavita by gripping on her body, kerosene dripping cloth, that was set on glow and thus, Kavita died of a bake injuries postulated in a aforesaid demeanour and hence, a assign opposite a indicted persons.
3. But however, a extended facilities of a assign box as suggested during conference competence be staid as under:
Deceased Kavita was a priory read, well-educated and a pleasing lady and she was a usually daughter of a complainant-Shivaramaiah (P.W. 2) and a pronounced Shivaramaiah had late from use as a Physical Training Instructor in a propagandize and was staying in Dooravaninagar, ITI Colony, Bangalore, during a applicable time. Kavita’s matrimony with a initial respondent-Gnanendra took place on 21-6-1991 and during a time of marriage, there was no direct of dowry by any of a accused, most less, by a initial respondent-husband. But, however, shortly after Kavita entered her matrimonial home, a difficulty started. It is a assign box that Kavita was subjected to vicious diagnosis and she felt like a restrained in a residence of a indicted and serve there was consistent direct by a indicted persons for dowry to a balance of Rs. 3 lakhs and in serve to a pronounced direct for dowry and vicious treatment, it was supposed by a prosecution, that Kavita’s husband, namely Gnanendra, was found to have wrong attribute with his sister-in-law i.e., a third respondent herein and this was witnessed by Kavita on a night of 12-9-1994, when Kavita’s father who went to attend nature’s call to a lavatory did not lapse for prolonged and therefore out of curiosity, Kavita checked as to where her father was and she saw him in a association of a third respondent-Shobha. On entrance to know of this fact, all a indicted persons took Kavita to a kitchen and she was set on glow in a demeanour described above. Following a crippled injuries sustained, Kavita was taken to a sanatorium for treatment. At a hospital, a story of a crippled injuries was given as due to random bake following a occurrence of Kavita perplexing to get a divert boiled to give to her child and in a process, her saree hold glow and so she postulated bake injuries. Kavita was given diagnosis during a hospital.
4. P.W. 6-Devanna Naik, a Head Constable of Jayalakshmipuram Police Station, Mysore, perceived a Medicolegal pointer from B.M. Hospital, Mysore as per Ex. P. 28 and went to a Hospital around 10.15 a.m. and contacted a harmed Kavita who had bake injuries and on being confident that Kavita was in a fit condition to make her statement, following a enquiry with a Medical Officer, P.W. 6 accessible a matter of Kavita as per Ex. P. 29 and performed a doctor’s publicity on it, nonetheless not a ride clarity of Kavita. The initial respondent father was benefaction in a sanatorium during that time, yet he was sent out during a recording of statement-Ex. P. 29. P.W. 7-Marimalegowda was also benefaction along with P.W. 6 when a above matter of defunct Kavita was accessible and in fact, it was P.W. 7 who wrote Ex. P. 29 and review a same to Kavita.
5. The ‘treatment given to Kavita did not capacitate her to come behind to life, yet on a other hand, she breathed her final in a sanatorium on 23-9-1994 during 7.30 a.m. P.W. 8-Padma, a Woman Police Constable accompanied by a Woman Sub-Inspector gave a suit to a Tahsildar to control inquisition over a upheld physique of Kavita. Accordingly, a Tahsildar-P.W. 21 conducted inquisition and during that time, a complainant-Shivaramaiah was also present. Ex. P. 7 is a inquisition panchanama and it also contained a matter of Shivaramaiah. The upheld physique was subjected to autopsy conference and it was P.W. 18 Dr. Ravichandar who conducted a autopsy and gave his news as per Ex. P. 33. The alloy opined that a means of genocide of Kavita was due to septicaemia
consequent to browns postulated by her.
6. P.W. 2-Shivaramaiah, a father of defunct Kavita on being sensitive about Kavita being approved to sanatorium for bake injuries, came to Mysore and he met his daughter in a sanatorium and according to a prosecution, a defunct done a verbal failing stipulation before P.W. 2 by saying that she was set on glow by a indicted persons as she had witnessed her father in a association of her sister-in-law-Shobha. P.W. 2 thereafterwards gave his censure in essay to P.W. 1-Santhosham, a Woman Police Sub-Inspector and a pronounced Police Officer relying on a created censure given by P.W. 2 and also on a strength of a genocide pointer she got from a B.M.Hospital, purebred a U.D.R. box in No. 1/94 and submitted FIR to a Taluk Executive Magistrate. The Taluk Executive Magistrate, as already mentioned by us, in a march of his enquiry and on a strength of a matter done by a complainant-P.W. 2, came to a faith that it was a box of dowry genocide and therefore destined a minute investigation. The censure given by P.W. 2 before P.W. 1 is during Ex. P. 5 and Ex. P. 3 is a FIR that was sent by P.W. 1.
7. P.W. 22-Manjula Devaraj, a Woman Police Inspector of Anti-Dowry Cell, took adult serve review of this box for a offences punishable underneath Section 302 of a IPC review with Sections 3 and 4 of Dowry Prohibition Act and she performed blueprint map of a theatre of corruption as per Ex. P. 37 and also a matter of a doctors during B.M. Hospital and she serve performed construction from Dr. Ravichandar with courtesy to a bake injuries on a defunct as per Ex. P. 34. P.W. 23-Mahadevaiah, a Police Inspector took partial in a control of symbol mahazar as per Ex. P.
39 and recovered a bullion ornaments of a defunct as per Ex. P. 40. P.W. 20-Rajendra Kumar who was a Assistant Commissioner of Police during Mysore, on his part, arrested a indicted and a bullion ornaments referred to above were seized underneath Ex. P. 32 and he also accessible a matter of many of a assign witnesses and collected a Xerox copies of a typed letters pronounced to have been sent by a defunct to her father. These letters are Exs. P. 12 to P. 15. P.W. 22 on execution of investigation, submitted a charge-sheet opposite a indicted persons.
8. The assign in sequence to settle this box opposite a indicted respondents, examined during a conference P.Ws. 1 to 24 and got remarkable papers Exs. P. 1 to P. 43. After a recoding of assign evidence, indicted matter came to be recorded. Stand of a indicted persons was one of sum denial, as regards a damning resources appearing in a justification opposite them, On their part, a indicted let in a counterclaim justification by examining Dr. S.P. Harale as D.W. 1 and got remarkable papers Exs. D. 1 to D. 16.
9. The schooled Trial Judge after appreciating a justification on record, in a light of a submissions made, came to a finish that a assign had unsuccessful to settle a assign leveled opposite a indicted persons and a assign box had several infirmities, giving arise to critical doubt and therefore, a Trial Court suspicion it fit to extend a advantage of doubt, to a accused. The resources on that a assign had placed faith were found to be wanting as regards their honesty and acceptability and a Trial Court had also beheld several improvements in a justification of assign witnesses and therefore, it eventually transparent a indicted of all a offences with that they stood charged. It is this sequence of exculpation of a Trial Court that is assailed before us in this appeal.
10. We have listened a submissions done by a schooled Additional State Public Prosecutor, Sri B.V. Pinto as good as a submissions of a schooled Counsel, Sri C.V. Nagesh for a respondents and with their assistance, have left by meticulously, a whole justification on record as good as a Trial Court logic for acquittal.
11. Learned State Counsel, Sri B.V. Pinto, referring to a justification on record, submitted that a defunct died a savage genocide and a justification placed by a prosecution, particularly, that of P.W. 2 would go to uncover that a defunct Kavita done verbal failing stipulation before her father and therefore, if a pronounced justification of P.W. 2 is review along with a other justification placed on record with courtesy to cruelty and wrong attribute a initial respondent had with a third respondent, a box of a assign has been valid over reasonable doubt. So distant as a matter of a defunct accessible by P.W. 6 as per Ex. P. 29 is concerned, it was submitted that a pronounced matter of a defunct purporting to be a failing declaration, does not bear a signature or ride clarity of
the defunct and it does not enclose a publicity of a Doctor to a outcome that defunct was in a fit state of mind and that a matter was accessible in a participation of a alloy and serve in viewpoint of a pronounced matter being accessible by P.W. 7 during a instance of P.W. 6, both of whom being Police Officials, these resources taken together, gave arise to doubt a sincerity of a matter Ex. P. 29 and a chances of a indicted perplexing to squirm out of a conditions by formulating Ex. P. 29 can't be ruled out and this acquiescence is sought to be reinforced by submitting that a control of a indicted persons also speaks volume and as such, in viewpoint of these factors, no faith can be placed on Ex. P. 29. It was argued on a same lines that, in viewpoint of a justification of P.W. 2 that he
was forced to pointer on a created complaint-Ex. P. 5, no faith can be placed on Ex. P. 5 also and if these dual papers are taken out of a reckoning, what stays is a verbal failing stipulation done by defunct Kavita before her father and this is an critical square of justification that points to a shame of a indicted persons and joined with this is a justification of a doctor-P.W. 18 and those of a other tighten family of a defunct as good as a tighten crony of a deceased, all of that would go to infer that Kavita was set on glow by a indicted following a vicious diagnosis given to her and a direct done for dowry and some-more importantly, given of Kavita witnessing her father in a association of third respondent-Shobha. Hence, schooled State Counsel submitted that a Trial Court had unsuccessful to interpretation a justification in correct viewpoint and thus, there has been miscarriage of justice.
12. On a other hand, schooled Counsel, Sri C.V. Nagesh for a respondents, argued during good length and took us by a justification of roughly all a witnesses and in particular, he laid significance on what a witnesses have pronounced in a march of their interrogate and a sum and piece of a submissions done by a schooled Counsel for a respondents in as under:
It was submitted that a assign had to settle that a genocide of Kavita was a savage one. The justification on record, if closely scrutinised will go to settle that defunct Kavita died not a savage death, yet it was accidental, in a clarity that she died due to random browns postulated by her while she was hot a divert on a stove. To support this contention, faith was placed on a justification of P.W. 18, a doctor, who in a march of his interrogate has clearly staid that a bake injuries on a defunct suggested that it was random bake injuries. Since alloy has opined that genocide was due to septicaemia, concomitant to burns, a fact that defunct died due to browns is not in dispute. But it was contended that a bake injuries postulated by Kavita was due to collision and it was not a box of savage bake injuries. It was also submitted that there were no eyewitnesses to a occurrence in doubt and a medical annals of a sanatorium where Kavita was admitted, would go to settle that a defunct postulated bake injuries due to random glow and not due to any act on a partial of a indicted persons. Ex. P. 29, a matter of a defunct also supports a above viewpoint of a defence.
13. It was serve submitted that insofar as a dowry nuisance is concerned, a assign witnesses have not staid that there was direct of dowry, yet on a other hand, a really assign box itself is that a initial respondent married Kavita yet perfectionist any dowry and this fact is approved by zero other than P.W. 2 who is a complainant and father of a defunct and also by other witnesses. Therefore, a doubt of dowry nuisance does not arise and this fact was sought to be fortified by submitting that in Exs. P. 12 to P. 15, supposed to be created by a deceased, there is no wheeze about any vicious diagnosis or any direct done in tie with dowry. Exs. D. 4 to D. 9 also reflects a same position. Therefore, no box underneath a Dowry Act has been done out, is a acquiescence done by a schooled Counsel.
14. As regards a focus of Section 498-A of a Cr. P.C. is concerned, it was submitted by referring to a sustenance of law that in sequence to attract Section 498-A, a assign will have to settle that a defunct was subjected to cruelty and for a pronounced purpose, cruelty as explained in Section 498-A, Clause (a) or Clause (b) will have to be proved. In this connection, it was submitted that Clause (a) of a reason does not get captivated to a box on palm given it is nobody’s box that Kavita died a suicidal genocide or healthy death. Since Kavita died due to random browns as has been determined by a medical annals as good as a matter of deceased-Ex.P. 29 and a censure Ex. P. 5, a doubt of Clause (a) of Section 498-A being captivated has to be ruled out. Even presumption that a defunct was subjected to some kind of nuisance by a indicted persons, nonetheless it falls brief of Clause (a) of a reason given genocide of Kavita was conjunction suicidal nor was there any grave repairs or repairs to her prong or health. So distant as a focus of Clause (b) of a reason is concerned, it was submitted that unless there is certain justification to uncover that a nuisance of Kavita was on comment of direct of dowry, doubt of Clause (b) entrance into operation will not arise and in a benefaction case, a assign justification is that there was no direct for dowry by a accused. Therefore, Section 498-A of a IPC also does not
get captivated to a box on hand.
15. Learned Counsel for a respondents serve submitted that if a whole justification on record is taken together, it would go to exhibit that a complainant gave a spin to a whole box usually when his matter was accessible by a Anti-Dowry Cell Inspector, roughly 20 days after a genocide of Kavita. Therefore, all a justification that is placed before a Court by P.W. 2 and others is nothing, yet an alleviation over a beginning chronicle given before a alloy and a beginning chronicle is that found both in a matter of a deceased-Ex. P. 29 and complaint-Ex. P. 5. It was also submitted that a complainant has resorted to mendacity of a papers and this is transparent from a really letters constructed during Exs. P. 12 to P. 15, a reading of that would leave no one in doubt as to a improbability of a defunct carrying typed those letters to her husband.
16. Learned Counsel Sri C.V. Nagesh in support of a above submissions placed faith on a decisions in Giridhar Shankar Tawade v. State of Maharashtra and Gaffar Badshaha Pathan v. State of Maharashtra 2004 SCC (Cri.) 2037.
17. By proceed of reply, schooled State Counsel submitted that a fact that defunct Kavita died within 7 years of her matrimony and a serve fact that during a time when she was found with bake injuries in her house, usually a respondents-accused were benefaction and none-else, it was a avocation of a indicted to have explained as to how Kavita postulated those bake injuries and in a deficiency of any reason stirring from a indicted in this regard, as could be seen from a answers given by them in their 313 matter and a control of a indicted in not informing P.W. 2 about a bake injuries would therefore put a requirement on a indicted to explain a injuries postulated by a defunct and therefore, a box underneath Section 302 of a IPC has been done out. In a alternative, it was submitted that, holding note of a contribution and resources of a box that genocide of Kavita took place within 7 years of her marriage. Sections 113-A and 113-B of a IPC can be pulpy into use and a box underneath Section 304-B can't be ruled out and if this Court were to come to a pronounced view, Section 222 of a Cr. P.C. gives range to crook a indicted persons for a obtuse offence.
18. Having so listened a submissions done by both sides during a bar, a infer for care is presumably a State has done out a box for us to meddle in this interest with courtesy to a visualisation and sequence of exculpation upheld by a Trial Court.
19. Before we ensue to understanding with a contentions urged before us, it has to be mentioned that, nonetheless a Appellate Court has no border on a energy to re-appreciate a justification while conference a appeal, it is also a staid position in law that if a justification on record permits dual views being probable and if a Trial Court accepts one viewpoint that is in foster of a accused, a Appellate Court can't disquiet a pronounced viewpoint of a Trial Court, merely given another viewpoint is also probable of a justification on record, yet a Appellate Court would meddle usually when it is shown that a anticipating of a Trial Court is presumably impolite or irrational or discordant to a justification on record. Unless these resources do exist, a Appellate Court would not routinely meddle with a visualisation of
the Trial Court.
20. Keeping a above position in law in a background, we ensue to inspect a justification on record in a light of a submissions done before us.
21. The assign box is that, defunct Kavita was subjected to cruelty and there was direct of dowry and that as she had seen her father in a association of third respondent, a indicted set her on fire. Therefore, before a assign could move home a shame of a accused, it has to be determined that a defunct died a savage death.
22. The justification of P.W. 18-Dr. Ravichandar is to a outcome that he conducted a autopsy conference on a upheld physique of Kavita between 4.55 p.m. and 6.00 p.m. on 23-9-1994 and on examination, he remarkable a following injuries:
(1) Epidermal bums (partially healed) were benefaction on a maiden aspect of a right forearm, right breast, left
upper limb, left breast surrounding a pap and areola, a rope of size, sized a palm, surrounding a whole body
in a epigastrium level, a localised area on a maiden abdominal wall were present;
(2) Dermal partially healed browns were benefaction on both a reduce limbs, solely a spine of a feet.
The Doctor has deposed that a genocide was due to septicaemia concomitant to browns sustained. He has also staid in a march of his examination-in-chief that, Ex. P. 33 is a autopsy news and he also gave clarifications to a Investigating Officer as per Ex. P. 34 and he has furnished his opinion in a form of answers to questions put to him and has opined that a bake injuries on a defunct could be probable by lighting a kerosene dripping cloth tied to a hang and putting it on a physique and this is transparent from a standard placement of multiple, localised bake injuries over a body. He has also staid that a bake injuries mentioned by him could be caused by others and not by self. At a finish of his examination-in-chief, P.W. 18 has staid that a injuries found on a upheld physique was revealing not of self-murder in nature. Thus a alloy has ruled out self-murder genocide of a deceased.
23. However, in a cross-examination, a alloy does a somersault, in a clarity that, when questioned by a defence, he has staid that by carrying courtesy to a nature, border and non-uniformity of a burns, they are revealing of random browns and this justification of a alloy is serve arguable by a assign by reexamining him and in his review also, P.W. 18 has staid in transparent terms that a nature, placement and non-uniformity of a browns advise that it was one of random death. The alloy has approved that he has not staid so in his autopsy news or Ex. P. 34. The doctor’s answer that a inlet of bake injuries suggested that it was random genocide is in response to a doubt acted to him as to presumably a genocide was accidental, suicidal
or savage carrying courtesy to a inlet of browns found on a upheld body. In other words, a justification of a alloy gives an denote that a bake injuries postulated by a defunct and a genocide that ensued afterwards, were both accidental. In other words, a doctor’s justification has ruled out a luck of a genocide being presumably savage or suicidal.
24. The above justification of a alloy is also arguable from a other justification placed by a assign on record. The medical annals of B.M. Hospital that have been constructed and remarkable as Exs. P. 42 and P. 43 discuss that a studious was brought to a sanatorium with a story of random bums. Ex. P. 28-the Medicolegal pointer also mentions that a story of bake injuries was due to random browns caused while hot a milk.
25. Thus, a reading of a above justification cumulatively, will lead to a deduction that defunct Kavita died due to random burns. In other words, browns postulated by her was accidental.
26. In serve to a justification of P.W. 18 and a other papers referred to above, we also have a complaint- Ex. P. 5 lodged by P.W. 2, wherein a means of a bake injuries has been described as due to random burns. Therefore, a really assign justification placed on record, itself indicates that a defunct died due to random burns.
27. As opposite a above medical justification and documentary justification placed by a assign itself, we also have a verbal justification of P.W. 2 to a outcome that he was told by his defunct daughter Kavita, that she was set on glow by a indicted persons. Excepting a uncorroborated supposed verbal failing stipulation pronounced to have been done by a defunct before P.W. 2, there is no other justification on record to infer as to a means of genocide of a deceased. The usually justification is a medical justification referred to above and a other documents-Exs. P. 42, P. 43 and P. 5-the complaint. Therefore, we are in agreement with a acquiescence done by a schooled Counsel for the
respondents that a justification on record does not settle over all reasonable doubt that defunct Kavita died in savage death, yet on a other hand, a certain justification placed by a assign is to a outcome that defunct died due to random bums. It has to be mentioned during this tie that a assign has not treated doctor-P.W. 18 hostile, nor has a assign placed any other justification to uncover that a defunct died usually a savage death. Hence, a medical justification has clearly ruled out savage genocide of a deceased.
28. Coming to a failing stipulation on that a assign has placed reliance, it has to be staid that this is a really rare case, in a clarity that, here is a box where a assign has placed on record dual sets of failing declaration. One is Ex. P. 29 that was given before P.W. 6 and accessible by P.W. 7 and approved by Dr. Manjula; a other set of verbal failing stipulation is a one supposed to have been done before P.W. 2 by defunct Kavita. As regards a acceptance of a failing declaration-Ex. P. 29 is concerned, P.Ws. 6 and 7 are a central witnesses and both of them have verbal on a same lines with courtesy to Kavita creation her matter as per Ex. P. 29. These
two witnesses have not been announced antagonistic by a assign and in other words, it means that a assign wants to place faith on a testimony of both P.Ws. 6 and 7. No doubt Ex. P. 29 does not enclose a signature or ride symbol of a deceased, yet P.W. 6 has explained in a march of his justification that Kavita has postulated bake injuries on both her hands and therefore, she could not pointer it nor could be obtain her ride impression. This justification of P.W. 6 has remained intact. No bid has been done by a assign to provide a declare antagonistic if a assign box is that a defunct was in a position to put a signature on Ex, P. 29.
29. D.W. 1-Dr. Harale examined by a counterclaim has staid in a march of his justification that it is probable that a hands and fingers of Kavita competence have been burnt and he has also staid that there was no snag to obtain signature of a deceased, yet adds that he did not record a before story of a patient. But he found it already in a record of a sanatorium when he came for avocation on a morning of 13-9-1994. 30. Therefore, a justification of a above witnesses would go to infer that a defunct did make her matter as per Ex. P. 29 as likely by P.Ws. 6 and 7 and it is formidable to mistrust their chronicle as they are a witnesses for a assign and some-more so, they are a military officials and it is rather, unfair to them to doubt a sincerity of their testimony, when zero has been put to these dual witnesses in a interrogate to a pronounced effect. The
fact that Ex. P. 29 is sealed by Dr. Manjula is also verbal to by P.W. 24-Dr. Rajagopal. This alloy has staid in a march of his examination-in-chief that Ex. P. 29(a) is a signature of Dr. Manjula and therefore, this justification of P.W. 24 confirms that Dr. Manjula was operative in B.M. Hospital as a lady Duty Medical Officer and her signature is found on Ex. P. 29.
31. At this stage, it has to be mentioned that, it was contended by a schooled State Counsel that there was no publicity in Ex. P. 29 that defunct was in a fit state of mind to give a statement. We do not find any force in a pronounced submission, given it is also a assign box that when P.W. 2 went to a sanatorium roughly 10 days later, he found his daughter in a position to pronounce to him as good as pronounce to P.W. 5-Govindan. Therefore, when Kavita had postulated 30% bake injuries and when she could pronounce to P.W. 2 as supposed by him in his evidence, roughly 10 -days later, it is rather improbable that she could not have been in a position to pronounce to P.Ws. 6 and 7 on a really day she was taken to a hospital.
32. Once Ex. P. 29 is supposed as a matter of a defunct done before P.W. 6 and accessible by P.W. 7, and sealed by Dr. Manjula, as testified by P.W. 24, a assign itself has come adult with a speculation that defunct died on comment of random browns as could be seen from a essence of Ex. P. 29. In Ex. P. 29, defunct has not staid that it was a indicted who set her on fire. Therefore, once Ex. P. 29 is supposed as a beginning chronicle with courtesy to injuries found on a deceased, doubt of a indicted persons environment a defunct on glow will not arise.
33. For a moment, we shall keep Ex. P. 29 aside and inspect a justification of P.W. 2 with courtesy to a supposed verbal failing stipulation done by a defunct before him. If a assign is means to uncover that a defunct did make her verbal failing stipulation before P.W. 2 and if a pronounced justification is found to be estimable of acceptance and credible, afterwards a box of a assign would mount on a softened footing.
34. P.W. 2 has deposed in a march of his justification that when he can't to a sanatorium and met his daughter, she told him that she had been approved to a sanatorium dual days behind and that a occurrence had occurred about 12 days behind and scarcely for a duration of 3 to 4 days, she was not given any diagnosis and she was found vibrating and when enquired by P.W. 2 she told him that a indicted caused those bake injuries to her. If this justification of P.W. 2 were to be supposed that a defunct done verbal failing stipulation before him, there was no snag on a partial of P.W. 2 to have staid so in his created complaint-Ex. P. 5. But this is not a case. Ex. P. 5 is a created censure lodged by P.W. 2 and he creates no discuss of a verbal failing stipulation done before him by his defunct daughter. Secondly, Ex. P. 7 that is a inquisition news accessible on 23-9-1994, also does not infer that a defunct done verbal failing stipulation to a above outcome before P.W. 2. In fact, Ex. P. 7 is totally wordless with courtesy to verbal failing stipulation done by defunct before P.W. 2. That apart, we also have a justification of P.W. 5- Govindan, a tighten family crony of P.W. 2 and a pronounced witness. P.W. 5 has deposed in his justification that he was with P.W. 2 via in a sanatorium and both of them spoke to Kavita and she is spin spoke to P.Ws. 2 and 5. Nowhere
in a march of his justification this declare has staid that a defunct Kavita done verbal failing stipulation before P.W. 2 as supposed by P.W. 2 in a march of his evidence. On a contrary, in a march of his evidence, P.W. 5 has also staid that indicted 1, indicted 4 and another lady were found attending Kavita and in their participation ‘he’ enquired with Kavita. If during all a defunct had done verbal failing stipulation before P.W. 2, P.W. 5 would not have unsuccessful to discuss this critical fact during a march of his evidence, deliberation a fact that P.W. 5 was a tighten crony of P.W. 2. Therefore, critical doubt arises with courtesy to a testimony of P.W. 2 that a defunct done oral
dying stipulation before him.
35. Even in Ex. P. 1 that is a news of a Tahsildar in courtesy to that P.W. 1 has deposed in a march of her evidence, there is a discuss of a fact that defunct was set on glow by a father-in-law and father of Kavita, whereas, a specific box of a assign as per a assign leveled opposite a indicted persons is that, it was indicted 1, indicted 3 and indicted 4 who hold a defunct and it was indicted 2 who set glow to a deceased. Apart from a above critical inequality in a assign justification itself with courtesy to failing stipulation supposed to have been done by a deceased, as already mentioned by us, zero prevented P.W. 2 to have mentioned a same in his complaint-Ex. P. 5 when a complainant was in a robe of essay letters to his daughter really mostly in pure English.
36. Therefore, in a box on hand, a assign has placed dual sets of failing declaration, one as per Ex. P. 29 with courtesy to that P,Ws. 6 and 7 have verbal and it is also upheld by Exs. P. 42 and P. 43 and all this justification stays intact, and on a other, there is supposed verbal failing declaration, that we have found on tighten conference as above, that is not giveaway from doubt and lacking in honesty and a censure Ex. P. 5 itself manners out any verbal failing stipulation done by a defunct before P.W. 2. Such being a justification placed by a assign with courtesy to a failing declaration, a Trial Court has therefore righteously deserted a justification of P.W. 2 with courtesy to a supposed verbal failing stipulation done by a defunct before him in a face of certain justification placed by P.Ws. 6 and 7 and that justification is upheld by Exs. P. 42 and P. 43. Therefore, a assign box that a defunct done verbal failing stipulation before P.W. 2 has to be deserted as lacking in honesty and so review of a whole justification on record leaves us with no other choice than to interpretation that a defunct done her failing stipulation as per Ex. P. 29 and there was no other failing stipulation done by her. The justification of P.W. 2 that defunct done verbal failing stipulation before him is therefore an after suspicion and nothing
37. Having so seen that a assign has unsuccessful to establish, firstly, a savage genocide of defunct Kavita and secondly, carrying unsuccessful to settle by convincing and arguable evidence, a verbal failing stipulation done by a defunct before P.W. 2, a usually justification that is left behind for care is a matter of a defunct as per Ex. P. 29, that is upheld by a complaint-Ex. P. 5.
38. A reading of a pronounced dual documents, goes to settle that there was positively no claim of dowry direct or any harassment, most less, vicious diagnosis given to a defunct by a indicted persons. P.W. 2 himself has approved in his justification that a initial respondent-accused came brazen to take a palm of Kavita in marriage, yet perfectionist any dowry, yet on a other hand, given Kavita was found to be attractive and beautiful. This is a justification of roughly all a assign witnesses as could be seen from their interrogate and whatever they have staid in a march of their examination-in-chief has been rendered dangerous in a crossexamination
and a clarity that a witnesses have softened their box before a Court is irresistable.
39. Once a direct of dowry is not there, and there is no justification to behind it, doubt of Sections 3 and 4 of Dowry Prohibition Act entrance into operation will not arise. Whatever wealth that was given to Kavita in matrimony was given, according to a assign witnesses, as partial of a family tradition and a pronounced wealth belonged to a deceased’s mom and it was given to Kavita during her marriage. P.W. 2 himself admits in his justification that he never done a matter before Police that there was direct of Rs. 3 lakhs by a accused.
40. So distant as Section 498-A focus is concerned, a usually nuisance to that a defunct was subjected, as could be seen from a justification of a assign witnesses was that, she was done to do domicile work and her father refused to set adult a apart residence during her request. There are no other allegations of nuisance and all a minute constructed by a assign as per Exs. P. 12 to P. 15 and Exs. D. 4 to D, 9 go to infer that defunct was happy in her matrimonial residence and she was in adore with her father and there was not even a remote denote in all those letters about any nuisance given by a indicted to her with courtesy a direct of dowry or vicious treatment. One of those letters was about 18 days before to genocide of Kavita and a other one was
written about 2 to 3 months progressing to her genocide and even in those letters also, Kavita had not supposed any nuisance by a indicted presumably for dowry or there being vicious diagnosis in her matrimonial house. Therefore, focus of Section 498-A, Clause (b) will not get attracted. As already mentioned by us, even to move in focus of Explanation (a) of Section 498-A, a genocide of Kavita being an random one, it falls brief of Section 498-A, Explanation (a).
41. In this connection, a decisions referred to by a schooled Counsel for a respondents will have to be pulpy into service. In Giridhar Shankar Tawade’s case, a Apex Court has celebrated as under: 16. We have already remarkable Section 498-A hereinbefore in this visualisation and as such, we need not excavate on a same in larger fact herein solely recording that a same stands attributed usually in a eventuality of explanation of cruelty by a father or a kin of a father of a woman. Admittedly, a anticipating of a Trial Court as regards a genocide negated self-murder with a certain anticipating of random death. If self-murder is ruled out afterwards in that eventuality qualification of Section 498-A can be had usually in terms of Explanation (b) thereto that in no capricious terms annals nuisance of a lady and a government itself afterward clarifies it to a outcome that it is not any such nuisance yet usually in a eventuality of such a nuisance being with a viewpoint to require her or any chairman associated to her to accommodate any wrong direct for any skill or profitable confidence or is on comment of disaster by her of any chairman associated to her to accommodate such direct – there is sum deficiency of any of a mandate of a government in terms of Section 498-A. The 3 letters pronounced to have been created and as beheld progressing can't presumably lend any faith to a requirement of a government or even a elementary direct for dowry.
17. As regards a core emanate as to presumably charges underneath Sections 306 and 498-A of a Indian Penal Code are eccentric of any other and exculpation of one does not lead to exculpation of a other, as beheld earlier, there appears to be a prolonged catena of cases in confirmation thereto and as such serve expansion is not necessary, conjunction are we prone to do so, yet in sequence to transparent a self-assurance underneath a after sustenance there contingency be accessible on record some element and reasoning evidence. Presently, we have on record dual unsuitable versions of a hermit and a cousin, as such no faith can be attributed thereon – a documentary justification (namely, those 3 letters), in a view, falls brief of a requirement of a statute; even on an arrogance of a fact that there is no counterbalance in a verbal testimony accessible on record, a cousin goes to a hapless girl’s in-laws’ place and requests a father to provide her good – during best some woe and a ask to provide her well. This by itself would not move home a assign underneath Section 498-A. Demand for dowry has not seen a light of day.
18. A gloomy try has been done during a march of submissions that Explanation (a) to a territory stands captivated and as such, no error can be attributed to a judgment. This, in a view, is a unconditionally fallacious proceed to a matter by reason of a specific anticipating of a Trial Court and a High Court concurred still that a genocide unfortunately was an random genocide and not suicide. If self-murder is left out, afterwards in that eventuality doubt of qualification of Explanation (a) would not arise -neither a second prong to means repairs and risk to life or prong or health would be attracted. In any eventuality a bullheaded act or control ought to be a present means in sequence to move home a assign underneath Section 498-A and not de hors a same. To have an eventuality someday behind can't be
termed to be a factum taken note of in a matter of a assign underneath Section 498-A. The legislative vigilant is transparent adequate to infer in sold anxiety to Explanation (b) that there shall have to be a array of acts in sequence to be a nuisance within a definition of Explanation (b). The letters by themselves nonetheless competence etch a reprehensible conduct, would not, however, move home a assign of Section 498-A opposite a accused. Acquittal of a assign underneath Section 306, as beheld hereinbefore, nonetheless not by itself a belligerent for exculpation underneath Section 498-A, yet some reasoning justification is compulsory to move home a assign of Section 498-A as well, yet that a charge
cannot be pronounced to be maintained. Presently, we have no such justification accessible on record.
42. Having courtesy to a above sustenance of law per Section 498-A of a IPC, even in a box on hand, a justification on record does not move a box underneath Section 498-A and within a Explanation (a) or (b) of a pronounced Section. 43. Learned State Counsel contended among other things, that a weight is on a indicted to infer that genocide of Kavita was random and a control of a indicted also gives arise to doubt their stand. We do not find any force in a pronounced acquiescence also given it is a staid law that a assign will have to mount or tumble on a possess legs and all that is compulsory on a partial of a counterclaim is usually to probabilise a counterclaim version. In other words, the
burden of explanation is lighter on a side of a counterclaim than on a side of a prosecution. In a benefaction case, a counterclaim has by fixation faith on a really assign justification of P.Ws. 6, 7 and 18 and a documentary evidence, namely failing stipulation – Ex. Pi 29, a censure of P.W. 2-Ex. P. 5 and a medical annals Exs. P. 42 and P. 43 and genocide pointer – Ex. P. 28 has lifted a Refence chronicle that is probabilised and as has been celebrated by a Apex Court in a box of Gaffar Badshaha Pathan, presumably a genocide in doubt was random or not, a weight of explanation was on a assign and it was not for a indicted given a weight on a indicted is most lighter and indicted usually had to infer reasonable probability. The Court also celebrated in a said
case that a fact that a failing stipulation was accessible by a Police Constable was found to be not puzzled and a publicity of a alloy arguable a loyal state of a defunct and therefore, a above courtesy was done by a Apex Court in a context of pronounced contribution and circumstances. In a box on palm also, a assign itself has placed on record convincing and certain justification to a outcome that genocide of Kavita was due to random browns and when that is a case, it is not for a indicted to come adult with his justification to infer a really same thing when that charge has been liberated by a assign itself by fixation justification to a pronounced effect.
44. To one other infer that we would like to impute is, a courtesy drawn by a schooled Counsel for a espondents as regards a interest belligerent 6 taken in a Appeal Memo. The State in a interest memo has staid during para 6 thus:
6. The Trial Court has erred in disbelieving Ex. P. 29 a failing stipulation accessible by P.W. 6-Devanna Nayak. It has come in a justification that a defunct was in a fit state of mind and a alloy who was treating a harmed has staid that she was in a position to make a matter and it is usually thereafter, Ex, P. 29 was accessible by P.W. 6, a justification of P.W. 6 is advanced by P.W. 7-Mahadev who was concomitant P.W. 6. Both these witnesses are a central witnesses and have no passion opposite a accused. Further, a justification of P.W. 6 as to a recording of Ex. P. 29 has remained unchallenged. In viewpoint of these attending circumstances, a Trial Court should
have believed Ex. P. 29. Not doing so, a same has resulted in miscarriage of justice.
45. It is therefore transparent that a row urged in a interest memo is for this Court to trust Ex. P. 29 and if a pronounced request is believed, it does not allege a box of a assign any further, yet on a other hand, it destroys a testimony of P.W. 2 that defunct done verbal failing stipulation before him. When there are dual declarations made, it is a beginning chronicle that has to be given a due importance, unless there is justification to uncover that a beginning chronicle was not found to be a infallible one. In a box on hand, we have seen that Ex. P. 29 suffers from no feebleness whatsoever and once it is accepted, a assign justification that defunct made
dying stipulation orally before P.W. 2 has to be rejected. We have also seen from a justification on record that a justification of P.W. 2 with courtesy to verbal failing stipulation done by a defunct is dangerous and lacks credit worthiness and also lacks certification from a other justification on record.
46. To sum up, a viewpoint taken by a Trial Court in a box on palm appears to us to be a reasonable and a probable viewpoint of a justification on record and as such, there are no constrained reasons for us to meddle in this interest or to meddle with a sequence of exculpation upheld by a Trial Court.
47. In a result, State interest stands dismissed.