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Judgments of Supreme Court of India and High Courts

Saraswathi vs State Of Karnataka on 27 September, 2019

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

ON THE 27TH DAY OF SEPTEMBER, 2019

BEFORE

THE HON’BLE MR. JUSTICE RAVI MALIMATH

AND

THE HON’BLE MR. JUSTICE H.P.SANDESH

CRIMINAL APPEAL NO.530 OF 2013
C/W
CRIMINAL APPEAL NO.834 OF 2013

IN CRIMINAL APPEAL NO.530 OF 2013

BETWEEN:

1. SARASWATHI
WIFE OF SRI. B. KRISHNAPPA
AGED ABOUT 60 YEARS

2. NINGACHARI
SON OF LATE CHELUVACHARI
AGED ABOUT 72 YEARS

3. RAJA
SON OF NINGACHARI
AGED ABOUT 30 YEARS

4. NARASIMHA
SON OF NINGACHARI
AGED ABOUT 33 YEARS

5. GOWRAMMA
WIFE OF SWAMY
AGED ABOUT 28 YEARS
2

6. MANJULA
WIFE OF RAJA
AGED ABOUT 20 YEARS

7. REKHA
WIFE OF RAJA
AGED ABOUT 20 YEARS

ALL ARE RESIDING AT
AHALYA VILLAGE
NANJANGUD TALUK
MYSORE DISTRICT. … APPELLANTS

(BY SRI. S. SHIVAKUMAR, ADVOCATE)

AND:

STATE OF KARNATAKA
BY HULLAHALLI POLICE STATION
MYSURU DISTRICT. … RESPONDENT

(BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR-2)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET
ASIDE THE JUDGMENT AND SENTENCE DATED 20.04.2013
PASSED BY THE V ADDITIONAL SESSIONS JUDGE,
MYSURU IN SESSIONS CASE NOS.208 OF 2011 AND 215
OF 2012 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 498A READ WITH
SECTION 34 OF INDIAN PENAL CODE. THE APPELLANT/
ACCUSED IS SENTENCED TO UNDERGO SIMPLE
IMPRISONMENT FOR TWO YEARS AND PAY FINE OF
RS.1,000/- IN DEFAULT TO PAY FINE, HE SHALL UNDERGO
SIMPLE IMPRISONMENT FOR ONE MONTH FOR THE
OFFENCE PUNISHABLE UNDER SECTION 498A READ WITH
SECTION 34 OF INDIAN PENAL CODE.
3

IN CRIMINAL APPEAL NO.834 OF 2013

BETWEEN:

STATE BY
HULLAHALLI POLICE STATION. … APPELLANT

(BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR-2)

AND:

1. PRASANNA KUMAR @ KUMARA
SON OF NINGACHARI
AGED ABOUT 28 YEARS

2. NINGACHARI
SON OF LATE CHELUVACHARI

3. RAJA
SON OF NINGACHARI
AGED ABOUT 32 YEARS

4. NARASIMHA
SON OF NINGACHARI
AGED ABOUT 35 YEARS

5. GOWRAMMA
WIFE OF SWAMY
AGED ABOUT 30 YEARS

6. MANJULA
WIFE OF RAJA
AGED ABOUT 22 YEARS

7. REKHA
WIFE OF RAJA
AGED ABOUT 22 YEARS
4

8. SARASWATHI
WIFE OF NINGACHARI

ALL ARE RESIDING AT
AHALYA VILLAGE
NANJUNGUD TALUK
MYSORE DISTRICT. … RESPONDENTS

(BY SRI. S. SHIVAKUMAR, ADVOCATE)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378 (1) AND (3) OF CRIMINAL PROCEDURE CODE
PRAYING TO GRANT LEAVE TO APPEAL AGAINT THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 20.04.2013
PASSED BY THE V ADDITIONAL SESSIONS JUDGE,
MYSURU IN SESSIONS CASE NO.208 OF 2011 AND 215 OF
2012 ACQUITTING THE RESPONDENTS/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 3 AND 4 OF
THE DOWRY PROHIBITION ACT AND SECTION 302 OF
INDIAN PENAL CODE OR IN THE ALTERNATIVE SECTION
304-B READ WITH SECTION 34 OF INDIAN PENAL CODE.

THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 21.08.2019 COMING ON
THIS DAY, H.P. SANDESH J., PRONOUNCED THE
FOLLOWING:-
JUDGMENT

Criminal Appeal No.530 Of 2013 is filed by accused

Nos.2 to 8, challenging the judgment and sentence of

conviction passed for the offences punishable under

Sections 498A read with Section 34 of Indian Penal Code

and Criminal Appeal No.834 OF 2013 is filed by the State,

challenging the judgment and order of acquittal of accused
5

Nos.1 to 8 for the offence punishable under Section 302 of

Indian Penal Code or in the alternative for the offence

punishable under Sections Section 304-B r/w Section 34 of

Indian Penal Code and also for the offence punishable

under Sections 3 and Section4 of the Dowry Prohibition Act,

respectively in Sessions Case No.208 of 2011 and 215 of

2012 by order dated 20.4.2013 on the file of V Additional

Sessions Judge, Mysuru.

2. Before the Court below, Sessions Case No.208 of

2011 was filed against accused Nos.1, 3 to 8 on the basis

of the charge sheet submitted by Dy.SP Nanjangud for the

offences punishable under Sections 498-A, Section302 or in the

alternative Section 304-B read with Section 34 of Indian

Penal Code and Sections 3 and Section4 of the Dowry Prohibition

Act.

Sessions Case No.215 of 2012 was filed against

accused No.2 for the same offences since she was secured

subsequently by the Civil Judge (Sr.Dn.) JMFC,

Nanjangud.

6

3. Brief facts of the case in a nutshell are as follows:

The second daughter of C.W.1 Eshwarachar who has

been examined as P.W.1 by name Roopa was given in

marriage to accused No.1 Kumar @ Prasanna Kumar of

Ahalya village, Nanjangud Taluk. At the time of marriage,

on the demand of the accused, they had given dowry of

Rs.20,000/- and one gold ring weighing 4 grams and the

marriage was performed at Chikka Subbaiah Kalyana

Mantapa, Mandi Mohalla, Mysore. Two months earlier to

the marriage, there was marriage talks in the house of

P.W.1 at Hebbadi Hundi Village of Srirangapatna Taluk. At

that time, the accused had demanded dowry of

Rs.50,000/- and elderly persons who had gathered in the

marriage negotiations had decided to give dowry of

Rs.20,000/- and one gold ring weighing 4 grams to the

bridegroom and 25 grams gold ornaments to the bride.

For about 2 or 3 months, all accused i.e., accused No.1,

husband of deceased Roopa, accused Nos.2 and 3 being

the in-laws, accused Nos.4 and 5 being the brothers of

accused No.1, accused Nos.6 to 8 being the wives of
7

brothers of accused No.1 were insisting the deceased

Roopa to bring more dowry and thereby, they were

harassing her physically and mentally and subjected her to

cruelty. Since the accused demanded more dowry amount

and were abusing the deceased Roopa in filthy and

indecent language, she felt insulted. On 7.1.2011, at about

2.30 p.m., deceased Roopa poured kerosene on herself

and asked accused to set fire since they were harassing

her. Accused No.2 lit fire to the deceased with a

matchstick, as a result, she sustained burn injuries and

then deceased was admitted to K.R.Hospital, Mysore and

she expired at about 11.50 p.m. on 9.1.2011. When

deceased Roopa was undergoing treatment in K.R.Hospital,

Mysore, MLC intimation was sent to Devaraja police station

and one Head Constable Umesh Murthy i.e., P.W.21 went

to K.R.Hospital, Mysore and recorded the statement of

deceased Roopa after consulting the doctor with regard to

her mental condition to give statement and he recorded

the statement as per Ex.P26.

8

P.W.21 Umesh Murthy intimated the said fact to

Hullahalli police station over phone and then P.W.25 ASI

Vishwanath of Hullahalli police station came to Devaraja

police station and received the statement of deceased

Roopa as per Ex.P26 and MLC intimation at Ex.P28 and

came back to Hullahalli police station and registered the

case and sent FIR to the Court. Thereafter, P.W.16

Subbanna PSI of Hullahalli police station conducted spot

mahazar and he handed over the file to Dy.S.P.,

Nanjangud sub-Division for further investigation. P.W.24

Rajgopal Dy.S.P, Nanjangud Sub-Division investigated the

matter and submitted charge-sheet against all accused for

the offences punishable under Sections 498-A, Section302 or in

the alternative Section 304-B read with Section 34 of

Indian Penal Code and Sections 3 and Section4 of Dowry

Prohibition Act. The accused persons were secured. They

pleaded not guilty and claimed to be tried. The prosecution

in support of its case, examined P.Ws.1 to 24 and got

marked Ex.P1 to P50 and also marked material objects 1

to 5. The Court below, on considering the oral and
9

documentary evidence acquitted the accused persons for

the offence punishable under Section 302 or in the

alternative Section 304-B of Indian Penal Code. However,

convicted the accused for the offence punishable under

Section 498-A read with Section 34 of Indian Penal Code.

4. Being aggrieved by the judgment of conviction,

accused Nos. 2 to 8 have filed Crl.A.No.530/2013. In the

appeal it is contended that the Court below has committed

an error in convicting the accused for the offences

punishable under Section 498A of Indian Penal Code. Even

P.W.1 and 2 have not placed any material before the Court

regarding the demand and acceptance of dowry prior to

the marriage and also the demand made by the accused

after the marriage. It is contended that the second

appellant and his sons by name Narasimha, Raja, the third

and fourth appellants herein, and Swamy and Prashanth

Kumar @ Kumar, the first accused herein have entered

into the deed of Palu Parikathu dated 15.9.2008 by

dividing the property among themselves as per Ex.D1.
10

The husband of the deceased Roopa has got a share in the

aforesaid Palu Parikathu dated 15.9.2008 and began to

reside in the portion of the house separately by severing

all the ties with the appellants. In spite of the material on

record, the Court below has committed an error in

convicting the accused persons. The deceased Roopa had

lodged a complaint dated 14.9.2008 in terms of Ex.P1 and

she has clearly stated that her husband, the first accused

used to come home in drunken state and harass her. But

the role played by the appellants herein in harassing her

and the words spoken or uttered by each of the appellants

is completely silent in the said complaint. Even the dying

declarations given by deceased Roopa Exs.P24 and P26 are

inconsistent with regard to the incident alleged to have

taken place on 7.1.2011 and the prosecution has miserably

failed to establish and prove before the Sessions Court that

the death of the deceased Roopa was caused in connection

with demand of dowry and there was no harassment. In

spite of it, the Court below has convicted these appellants.

Even the evidence of P.Ws.1 to 4, 10 to 12 and P.W.22
11

fails to establish and prove the harassment meted out to

deceased Roopa physically and mentally. Hence, the trial

Court ought not to have convicted the accused persons for

the offence punishable under Section 498-A of Indian

Penal Code. Hence, prayed this Court to set aside the

conviction and sentence passed insofar as the appellants

are concerned.

5. In Crl.A.No.834/2013, filed by the State, the State

would contend that the Court below has committed an

error in acquitting the accused for the offences punishable

under Sections 3 and Section4 of the Dowry Prohibition Act and

Section 302 of Indian Penal Code or in the alternative

Section 304-B read with Section 34 of Indian Penal Code

and the reasons assigned are erroneous and the same is

liable to be set aside. The trial Court has committed an

error in coming to the conclusion that the prosecution has

not proved the charges against the accused/respondents.

Even though the prosecution has proved its case beyond

reasonable doubt regarding demand and acceptance of
12

dowry and so also setting fire on the deceased, it has

taken note of the fact that victim poured kerosene on

herself on account of harassment meted out to her by the

accused. The Court below also failed to consider the

material on record regarding demand of additional dowry

after the marriage and the dying declaration of the victim.

Even though it has come to the conclusion that death of

the victim is unnatural and is caused within 7 years from

the date of marriage, it has failed to invoke Section 302 or

in the alternative Section 304-B of Indian Penal Code. The

trial Court has not properly appreciated the evidence on

record and it has not considered the second dying

declaration, which has been recorded by the Tahsildar

P.W.18 and also has not properly considered the contents

of Ex.D2, which in fact supports the case of prosecution to

certain extent. The trial Court has failed to consider the

evidence of P.Ws.1 to 4, 10 to 12 and 22 who have

deposed about the demand of dowry and also conducting

of panchayath. Besides two dying declarations Exs.P24 and

P26, the official witnesses P.Ws.17, 18, 21 and 23 also
13

corroborates the evidence of the prosecution. In spite of

the same, the Court below has failed to appreciate the

evidence in right perspective. The postmortem report

which is marked as Ex.P35 states that deceased died on

account of 80% of burn injuries sustained by her. The

evidence of P.W.13 supports the case of the prosecution.

Hence, the judgment of the trial Court suffers from

infirmity and calls for interference and accordingly, prayed

this Court to set aside the judgment of the trial Court and

convict the accused persons for the offences punishable

under Sections 3 and Section4 of the Dowry Prohibition Act, so

also, under Section 302 of Indian Penal Code or in the

alternative under Section 304-B read with Section 34 of

Indian Penal Code.

6. The learned counsel appearing for accused Nos.2

to 8 in his arguments has vehemently contended that

when the Court below has come to the conclusion that

there was no material with regard to payment and

acceptance of dowry prior to and after the marriage, the
14

trial Court ought not to have convicted the accused for the

offence punishable under Section 498-A of Indian Penal

Code. It is also contended that it is emerged in the

evidence that accused Nos.2 to 8 were staying separately

and deceased and her husband were staying separately in

a portion of their house and there was a partition in

between the husband of the victim and accused Nos.2 to 8

and the same has not been considered by the trial Court.

The Court below has committed an error in relying upon

the complaints given by the victim earlier against the

accused persons and the very approach of the trial Court is

erroneous.

7. Learned State Public Prosecutor-2 appearing for

the State would contend that the Court below though

comes to the conclusion that there was harassment meted

out to victim immediately after the marriage and

thereafter also two complaints were given, the same was

not considered and while appreciating the evidence

available on record insofar as the offence under Section
15

Section302 of Indian Penal Code or in the alternative Section 304-

B of Indian Penal Code, it has failed to appreciate the

prosecution evidence in the right perspective. Particularly,

it has failed to consider the dying declaration made before

the Tahsildar in terms of Ex.P24. There are two dying

declarations and both the dying declarations are consistent

about the harassment meted out to the victim by the

accused persons. In spite of that the court below has

committed an error in not convicting the accused for the

other charges leveled against them. Hence, it requires

interference of this Court.

8. Having heard the arguments of the learned

counsel appearing for the accused persons and the learned

State Public Prosecutor-2 appearing for the State and on

considering the oral and documentary evidence available

on record, in view of the rival contentions urged, the

points that would arise for our consideration are:

(i) Whether the Court below has committed
any error in convicting accused Nos.2 to 8
in Crl.A.No.530/2013 for the offences
punishable under Section 498-A r/w Section
16

Section34 of Indian Penal Code and whether it
requires interference by this Court?

(ii) Whether the Court below has committed
any error in acquitting accused Nos.1 to 8
for the offences punishable under Sections 3
and Section4 of the Dowry Prohibition Act, so also,
under Section 302 of Indian Penal Code or
in the alternative under Section 304-B read
with Section 34 of Indian Penal Code and
whether it requires interference of this
Court?

(iii) What order?

9. Points Nos.1 to 3:

In a nutshell the case of the prosecution is that, the

accused persons have demanded and accepted dowry prior

to and after the marriage and continued to demand

additional dowry and in that regard, subjected the victim

to ill-treatment and harassment and committed her

murder.

In order to prove the case of prosecution, the

prosecution has relied upon both oral and documentary

evidence. Keeping in view the rival contentions urged by

the respective parties, this Court has to re-appreciate the

material available on record.

17

Now let us consider the oral and documentary

evidence of the prosecution with regard to Sections 3 and

Section4 of the Dowry Prohibition Act regarding demand and

acceptance of dowry amount.

10. The prosecution mainly relies upon the evidence

of P.Ws.1 and 2 who are the parents of the deceased. The

other witnesses are P.Ws.3, 4, 10 to 12 and 22 who are

the elderly persons of Hebbadi Hundi Village of

Srirangapatna Taluk who had participated in the marriage

talks and for having paid the dowry of Rs.20,000/- and one

gold ring weighing 4 gms to accused No.1 at the time of

marriage. The other witnesses are P.Ws.5, 7, 8 and 9 who

are the elderly persons of Ahalya village of Nanjangud i.e.,

native of accused who had participated in the marriage

talks.

11. P.Ws.1 and 2 are the parents of the deceased.

In their evidence they have stated that the marriage of

their daughter Roopa was solemnized with accused No.1

on 5.6.2006. During marriage talks, accused demanded
18

Rs.50,000/- as dowry and also demanded to celebrate the

marriage in a luxurious manner. The villagers who had

participated in the talks have negotiated to give

Rs.20,000/- cash as dowry and 4 gms of gold ring to

accused No.1 and 25 grams of gold to the bride and the

same was agreed. The marriage was performed at

Mysuru. For about 2-3 months the couple was cordial.

Thereafter, the accused persons have demanded

Rs.1,00,000/- as additional dowry and started to harass

her. Deceased Roopa revealed the said fact when P.W.1

visited her house. In this regard, panchayath was held and

panchayathdars had advised accused persons not to

harass her. His daughter was sent to her maternal house

and after the panchayath, she was sent back to her

matrimonial home. In the complaint given at the first

instance police had advised the accused persons not to

harass her and at that time his daughter was 4-5 months

pregnant. After delivery, she was in their house for about

one year and till such time, they did not come to take her

daughter to their house. After sending words only they
19

came and took their daughter and thereafter, they were

cordial for about three months. Again they started

harassment and hence second complaint was given and

again the police had called and advised the family

members of the accused and obtained an undertaking from

them. Thereafter, she gave birth to the second child and

she was there for about six months and thereafter she was

sent to her matrimonial house. One week prior to her

death, she had come to her maternal house and told that

accused persons are insisting to bring money to construct

the house. But, she was consoled and sent to her

matrimonial home. That on 7.1.2011 they received a

phone call that she was set to fire by pouring kerosene by

the accused persons and she was shifted to hospital.

Immediately, they rushed to the hospital and on enquiry,

she revealed that all the family members have poured

kerosene and set fire to her. She succumbed to burn

injures on 9.1.2011 at 11.50 p.m. Complaint of deceased

Roopa is marked as Ex.P1 and endorsement given by the

police is marked as Ex.P2. The panchanama is marked as
20

Ex.P3. The medical report is produced as per Ex.P4. The

joint statement given before the police is marked as Ex.P5,

letter written by the villagers of Ahalya village is marked

as Ex.P6. He was subject to cross-examination.

In the cross-examination it is elicited that marriage

talks were held two months prior to the marriage and

formal function was made on the said day. On that day

itself, they gave an amount of Rs.5,000/- and another

Rs.15,000/-, gold ring, watch and clothes were given 15

days prior to the marriage. He did not give any complaint

when they demanded an amount of Rs.1,00,000/- for

construction of the house, but he volunteers that both the

villagers sat together and conducted panchyath and

advised the accused persons. He admits that in terms of

Ex.P6 himself and his daughter were called to attend the

meeting at Ahalya village. It is elicited that when his

daughter came to his house for delivery, accused No.1 was

coming and visiting the house. He did not give any

complaint to police when they continued additional

demand of dowry after his daughter returned to her
21

matrimonial house after delivery. But he volunteers that

they have informed the same to the villagers of the

accused. He admits Ex.P1 is the complaint given by his

daughter. It is suggested that nothing is mentioned in the

complaint Ex.P1 regarding payment of money and

harassment meted out to deceased and the same is

denied. He admits that in the panchayath it was decided

to give a share to his son-in-law. He admits that when the

accused persons were called to Hullahalli police station

after the advice, his daughter was sent to her matrimonial

home.

12. P.W.2 is the mother of deceased Roopa. In the

cross-examination she admits that marriage talks were

held 20 days prior to the marriage. But she volunteers

that male members have participated in the talks and she

does not remember the date. It is elicited that both the

villagers sat together and suggested to perform the

marriage as per customs, with dowry amount. She cannot

tell as to any dowry was given on the date of marriage
22

talks when formal decision was taken to perform the

marriage. She states that ring and watch were given on

the previous day of the marriage and at that time several

persons were there. She also reiterates with regard to the

complaint given by their daughter and conducting of

panchayath. She cannot tell what decision was taken in the

panchayath. It is elicited that after her daughter gave

birth to the second child no complaint was given regarding

dowry harassment and no panchayath was conducted in

that regard. The incident has taken place after 15 days of

her daughter returning to matrimonial home and that

deceased had gone to her matrimonial home along with

her son-in-law. It is elicited that when she went to

hospital, on enquiry, deceased revealed that galata had

taken place in the house and all the accused poured

kerosene on her and her mother-in-law lit fire using the

matchstick.

13. P.W.3, in his evidence, states that he

participated in the marriage talks. 8 days prior to the
23

marriage 4 grams gold ring and cash of Rs.20,000/- was

given to accused No.3 who is the father of accused No.1.

He also states that P.W.1 had sold his property for

performing the marriage of her daughter. The accused

had demanded additional dowry. At that time, a

panchayath was held in the village and he also participated

in the said panchayath. Both accused No.1 and his father

had attended the panchayath.

In the cross-examination he admits that marriage

talks were held 2-3 months prior to the marriage. The

formal ceremony was held 8 days prior to the marriage

and he does not know whether anything was given on the

previous day of the marriage. It is suggested that P.W.1

was not having any land and he has not sold one acre of

his land after 1 ½ years of the marriage of the deceased

and the same was denied.

14. P.W.4, in his evidence, states that parents of

accused No.1 demanded Rs.50,000/- and it was decided

by the villagers to pay an amount of Rs.20,000/- and a
24

gold ring weighing 4 gms and also 25 grams gold to bride.

The amount of Rs.20,000/- and a gold ring was given one

month prior to the marriage and gold ornaments were

given to the bride at the time of marriage. They were

cordial for about three months and thereafter, demanded

Rs.1 lakh as additional dowry. Later they came to know

that accused persons have poured kerosene and set fire.

When he enquired the injured, she told that all the accused

persons have poured kerosene and lit fire.

In the cross-examination it is elicited that on the

date of marriage talks itself formal ceremony was held and

on that day Rs.5,000/- was given and on the previous day

of marriage, clothes and an amount of Rs.15,000/- was

given. He also contends that he was present when

complaint was given to the police. He went to Ahalya

village and participated in the panchayath held. But he

has not participated in the panchayath held in his village.

When the panchayathdars of their village had given notice

to the panchayathdars of Ahalya village, the deceased was

in her matrimonial home.

25

15. P.W.10, in his evidence, states that accused

persons have demanded Rs.50,000/- as cash and 4 grams

of gold ring. It was decided to give Rs.20,000/- and a gold

ring. The marriage was held after two months of marriage

talks. He came to know through P.W.1 that they are

demanding additional dowry after the marriage. He came

to know a complaint was given regarding demand of

additional dowry and panchayath was held and the same

was participated by Marigowda, Eregowda and Raju.

In the cross-examination he has admitted that he

cannot tell who all have participated in the marriage talks

on behalf of the accused. But he claims that the villagers

of Ahalya village have participated in the marriage talks.

He did not participate in the marriage talk. He claims that

3-4 days prior to the marriage an amount of Rs.20,000/-

was given at Hebbadi Hundi village and there was no any

function in the house on that day.

16. P.W.11, in his evidence, states that he

participated in the marriage talks, at that time, accused
26

demanded Rs.50,000/- and it was decided to give

Rs.20,000/- and a gold ring of 4 grams. He states that

P.W.1 gave Rs.20,000/- on the date of marriage and he

also participated in the marriage. He also participated in

the panchayath held at Ahalya village. P.W.1 took him to

Ahalya village and also identified Ex.P6, the letter

addressed to the villagers of Ahalya village. On enquiry,

the victim told that her husband, mother-in-law and

father-in-law have set fire to her. It is elicited from him

that on the date of marriage talks itself formal function

was held. Again he states that 10-15 days prior to the

marriage, Rs.20,000/- and also 4 grams of gold ring was

given in the presence of elders to the parents of accused

No.1. He admits that in the complaint given by the victim

there was no averment regarding the harassment for

additional dowry and so also in Ex.P6 there was no any

averment with regard to additional dowry.

17. P.W.12, in his evidence, states that he also

participated in the marriage talks and claims that accused
27

demanded Rs.50,000/- and they have agreed to

Rs.20,000/- and a gold ring. On the same day, Rs.5,000/-

was given and later on, P.W.1 told that he gave

Rs.15,000/- and gold ring was given on the day of

marriage. The victim told that they are demanding

Rs.1,00,000/- lakh as additional dowry and panchayath

was held. In the panchayath, they were advised and the

accused persons have agreed to look after her well. It is

his evidence that victim told him that accused No.2 set fire

to her.

In the cross-examination he admits that marriage

talks were held one month prior to the marriage and

Rs.5,000/- was given on that day itself in the presence of

villagers. But he was not present at the time when they

gave the balance amount of Rs.15,000/- and only P.W.1

told him about the payment of the said amount. He

admits that he did not participate in the panchayath held

in the police station.

28

18. P.W.22, in his evidence, states that he also

participated in the marriage talks and accused had

demanded Rs.50,000/- cash and a gold ring and it was

decided to give Rs.20,000/- and a gold ring weighing 4

grams. The marriage was performed in a choultry at

Mysuru and an amount of Rs.20,000/- was given 15 days

prior to the marriage in the house of P.W.1 to the parents

of accused No.1. Thereafter, again they started

demanding additional dowry. When he met the injured in

the hospital, she revealed that all the accused persons and

her mother-in-law gave kerosene to her and she herself

got poured the kerosene on her and accused No.2, her

mother-in-law lit fire to her.

In the cross-examination it is elicited that both the

villagers sat together and agreed to perform the marriage

as per the customs. In the panchayath they have advised

not to precipitate the matter for trivial issues and asked

both of them to adjust and lead the life. He admits that on

the day of his visit to hospital he was not allowed to speak

to the victim.

29

19. Having considered both oral and documentary

evidence of these witnesses, it is clear that after the

marriage there was dispute between the two families and

twice complaint was given to the police. It is also

important to note that a panchayath was held in both the

villages and accused were advised to look after the victim

well. It is also elicited in the evidence of witnesses that in

the police station also, accused persons were called and an

undertaking was taken by the police. Regarding the

demand, payment and acceptance of the dowry, the

evidence of witnesses P.Ws.1 to 4, 10 to 12 and 22 is

clear. All of them state that accused had demanded

Rs.50,000/-, but it was agreed to give Rs.20,000/-. But

regarding payment of amount is concerned, all the

witnesses have given different versions with regard to

time, date and quantum of payment. Some of them say

that an amount of Rs.20,000/- was given on the date of

marriage. Some of the witnesses says that on the date of

marriage talks Rs.5,000/- was given and some of the
30

witnesses say that on the previous day of the marriage

amount and gold ring was given. P.W.1 says 15 days prior

to the marriage, amount was paid. There are material

contradictions in the evidence of prosecution witnesses

regarding this aspect and their evidence is not consistent.

In view of the major contradictions in the evidence of the

prosecution witnesses the very demand and acceptance of

dowry is doubtful. The trial Court has considered this

material while acquitting them under Sections 3 and Section4 of

the Dowry Prohibition Act. It is also noticed by the trial

Court that in the complaint Ex.P1 given by the victim

herself in the police station nothing is mentioned about the

demand of dowry. So also, the witnesses who have been

examined before the Court also have categorically deposed

that there was no mention in the complaint Ex.P1

regarding payment of dowry prior to the marriage. Further,

in Ex.P1 there is nothing on record regarding demand for

additional payment of dowry. Ex.P2 endorsement was

given in respect of Ex.P1 and accused persons were

advised not to harass the victim. Ex.P4 discloses that
31

victim was subjected to assault on 11.09.2008 and she

visited the hospital and as per the report, the injury

sustained by her were simple in nature. Ex.P5 is the joint

statement made by the accused persons before the police

that they will not harass the victim. However, there is no

any averment in Ex.P5 also regarding payment of

additional dowry. Ex.P6 is the letter addressed to the

elders of Ahalya village to participate in the panchayath

regarding the dispute between the victim and her husband

family, which is also not in dispute. All these material

disclose that there was harassment to deceased Roopa,

but there is no material on record regarding the demand of

dowry at the time of marriage and also after the marriage.

There are material contradictions even in the evidence of

P.Ws.5, 7, 8 and 9 who are the elder persons of Ahalya

village with regard to demand and acceptance of dowry.

When it is elicited in the cross-examination of witnesses

that it was decided in the marriage talks to perform the

marriage as per customs and when there is no positive

evidence before the Court regarding payment and
32

acceptance of dowry, the Court cannot invoke Sections 3

and Section4 of the Dowry Prohibition Act. The trial Court has

given its anxious consideration to the material available on

record and has rightly acquitted the accused for the

offences punishable under Sections 3 and Section4 of the Dowry

Prohibition Act.

20. Insofar as the offence under Section 302 or in

the alternative Section 304-B of Indian Penal Code is

concerned, no doubt, the incident has taken place within 7

years of the marriage. It is the case of the prosecution

that accused persons themselves have set fire to the

deceased when she brought the kerosene can being unable

to tolerate the harassment of the accused persons. The

accused persons themselves have told the deceased to

pour kerosene on herself and when victim poured kerosene

on herself, taking advantage of the same, all of them have

set fire to her.

21. The prosecution relies upon Exs.P24 and 26, the

dying declarations. On perusal of Ex.P26 the dying
33

declaration of the deceased which was recorded by Umesh

Murthy, Head Constable of Devaraja police station who has

been examined as P.W.21, in his evidence he states that

after verifying the condition of the victim he recorded the

statement of the injured in the hospital. While recording

the statement, victim revealed that she was subjected to

harassment by all the family members and when she came

to know that her brother-in-law was propagating false

things about her in the village, she immediately went to

the house of accused persons and enquired about the

same, by that time, all the family members have abused

her stating that they are going to perform second marriage

to her husband and the same was reiterated by her

husband, as such, on 7.1.2011 due to humiliation she went

with kerosene tin to the house of accused persons and the

accused persons abused her again and as such, she poured

kerosene on herself and one of the accused persons has

set fire to her and she came out of the house and

neighbours shifted her to the hospital. This document
34

shows that the same was recorded by HC 485 in the

presence of the doctor.

22. The prosecution also relies upon another dying

declaration which is marked as Ex.P24. The same was

recorded by the Taluk Executive Magistrate on 8.1.2011

between 12.00 p.m. and 12.45 p.m. While making her

statement victim says that she was taken to hospital by

her father-in-law. She repeats the same in the second

dying declaration regarding harassment, as to how the

incident has taken place and also regarding the demand of

additional dowry. She also reiterates that she was residing

along with her husband separately. It is her statement

that when she went with kerosene tin, her mother-in-law

poured kerosene on her and lit fire by using match stick

and when she screamed, all of them taking wooden club

pulled her from inside the house to outside and the

neighbours came and shifted her to hospital.

23. Having considered Exs.P24 and P26 there is a

discrepancy with regard to setting fire in her statement.
35

In her first statement she claims that one among the

accused persons have lit fire to her and in the second

dying declaration she specifically says that her mother-in-

law accused No.2 lit fire to her.

24. In Ex.D2, the MLC extract, relied upon by the

accused, it is mentioned that ‘patient says she attempted

suicide by pouring kerosene and lighted with matchstick on

7.1.2011 at 2.00 p.m’. This entry was made on 7.1.2011

at 4.51 p.m. This document came into existence at the

first instance when she was taken to hospital at 4.51 p.m.

The other documents Exs.P24 and 26 came into existence

at the later point of time on 7.1.2011 and 8.1.2011 in

which different versions are given regarding setting fire to

the victim. Having considered all the three versions with

regard to the incident is concerned, the Court below has

rightly come to the conclusion that there are contradictions

in the dying declaration of the victim. If the document at

Ex.D2 is considered, which came into existence when the

victim was taken to hospital immediately, it was the case
36

of suicide by the victim herself. But in the subsequent two

documents at Exs.P24 and P26, different versions are

given. Hence, we do not find any error committed by the

trial Court in acquitting the accused persons for the offence

punishable under Sections 302 of Indian Penal Code or in

the alternative Section 304-B of Indian Penal Code.

25. In support of the above contention, we would

like to refer to the recent judgment of the Apex Court

reported in 2019(3) AICLR 19 (SC) in the case of State of

Rajasthan Vs. Mst. Ganwara regarding multiple dying

declarations, wherein paragraphs 10 and 11 of the said

judgment, reads as follows:

“10. The intrinsic worth and reliability of
dying declaration can generally be judged from
its tenor and contents themselves. Here in the
case on hand, the so called dying declarations
recorded at the behest of the deceased create
huge doubt on their veracity inasmuch as there
was contradictory variance as to the facts of
presence of the accused at the scene of
offence at the time of incident, bringing the
victim to the hospital and impact of
the presence and provocation of relatives and
advocate at the time of recording of statement
of the deceased. It is also evident from the
37

record that when PW14 made enquiries in the
vicinity, no one supported the case of
prosecution that the accused had put the
deceased on fire. The I.O. (PW14) categorically
deposed that during his enquiry, he found that
at the time of incident, the accused was away
from home as she went to Gopalji temple and
it was the accused who first of all took the
deceased to the hospital. It was also made
clear by PW14, that he came to know from the
neighbourhood that the deceased did not want
to live at her matrimonial home and always
wanted to live at her parental home. According
to him, the deceased Shanti was well built
woman with strong physique and the accused
Ganwara was weak in comparison to the body
structure of deceased Shanti. Most of the other
prosecution witnesses are either relatives of
the deceased or hearsay witnesses and
investigating witnesses and none of them was
present at the time of offence. In the light of
foregoing, it can be said that the allegations
levelled against the respondent in the
dyingdeclarations have not been corroborated
by the material witnesses.

11. Taking stock of the facts and
circumstances of the case, in our view, the
High Court has rightly felt that the dying
declaration in the case on hand did not inspire
confidence so as to award conviction to the
accused. In this state of things, the Court has
to give benefit of doubt to the accused as it is
not safe to sustain the conviction as implicit
reliance cannot be placed on the dying
declaration under the peculiar circumstances of
the case.”

38

Having considered the principles laid down in the

judgment referred to supra, the facts of the above case

are aptly applicable to the case on hand. We do not find

any reasons to come to other conclusion than the

conclusion arrived at by the trial Court regarding Section

302 of Indian Penal Code or in the alternative Section 304-

B of Indian Penal Code.

26. The Court below has given its anxious

consideration to both oral and documentary evidence

particularly, the document Ex.P4, the wound certificate of

the victim, which clearly discloses that she was subjected

to assault on 11.9.2008 in her house and she has suffered

injuries which are simple in nature. Apart from that, the

Court below also taken note of the complaint Ex.P1 dated

14.9.2008 that immediately after taking treatment on

11.9.2008 she has given the complaint and accused

persons were called and advised on 15.9.2008 itself and

an endorsement is given in terms of Ex.P2. Further, Ex.P5,

the joint statement of the accused persons were recorded
39

in pursuance of the complaint given to the police wherein

they have given an undertaking that they will not harass

her and would look after her well. Further, Ex.P6 the letter

given by the villagers of Hebbadi Hundi village to the

panchayathdars of the village of the accused i.e., Ahalya

village regarding conducting of panchayath in the month of

December 2006 itself shows that within a span of six

months of the marriage, a panchayath was held. All these

material support the case of prosecution with regard to

invoking of Section 498-A of Indian Penal Code. No doubt,

the accused and deceased were living separately at the

time of the incident. But, on the date of incident, due to

humiliation and harassment the victim herself had been to

the house of accused Nos.2 to 8 with kerosene and

incident has taken place. The Court below has considered

the documentary evidence and also the evidence of the

prosecution witnesses, which is consistent regarding the

harassment meted out to the victim which forced her to

take the extreme step. Hence, we do not find any reasons

to reverse the finding of the trial Court with regard to
40

conviction of the accused persons for the offence

punishable under Section 498-A of Indian Penal Code. In

view of the discussions made above, we pass the

following:

ORDER

Crl.A.No.530/2013 filed accused Nos.2 to 8 and

Crl.A.No.834/2013 filed by the State, are dismissed.

Sd/- Sd/-
JUDGE JUDGE

Bkp

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