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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
BUDIHAL R.B. & B. SREENIVASE GOWDA, JJ.
SRI SRINIVAS PRABHAKAR HOOLI – Appellant
Versus
THE STATE OF KARNATAKA – Respondent
Criminal Appeal No. 100078 of 2014
Decided On : 20-04-2017
CODE OF CRIMINAL PROCEDURE, 1973 – Section 154 – FIR – Delay in lodging – Incident occurring at wee hours – Accused, husband of deceased intimating informant, father of deceased at 4:30 a.m. that deceased committed suicide – Informant reaching spot, house of accused at 10:30 a.m. – Accused unlocking his house – Informant unsure as to suicide or murder – Police arriving at spot at 11:30 a.m. – FIR lodged at 1:00 p.m. – Delay of 1½ hours in filing FIR after arrival of police, held, not fatal.
INDIAN EVIDENCE ACT, 1872 – Sections 11, 105 – Plea of alibi – Plea of accused that deceased committed suicide when he was away from home with his young son – Failure of accused to produce train or bus ticket – No call records produced by accused to show receipt of call by him about death of deceased, to enable to detect his exact location – Accused failed to prove plea of alibi.
INDIAN EVIDENCE ACT, 1872 – Section 32(1) – Dying declaration – Deceased complaining to informant, father against ill-treatment and harassment for demand of dowry by accused, husband – Held, It amounts to oral dying declaration.
INDIAN PENAL CODE, 1860 – Sections 302, 498-A & Indian Evidence Act (1 of 1872), Section 11 – Murder – Plea of alibi – Accused allegedly committing murder of his wife by strangulation on account of demand of dowry – Defence of suicide by accused – Deceased earlier complained to informant-father about harassment by accused for demand of more dowry – Failure of accused in presenting travelling tickets and call records for establishing plea of alibi – Medical evidence and post-mortem report stating that death of deceased homicidal in nature due to strangulation – No defence by accused regarding committing of murder by third person – Failure of accused in establishing death due to suicide – Prosecution witnesses, clearly establishing guilt of accused – Accused, held, liable to be convicted.
1. This appeal is preferred by the appellant/accused being aggrieved by the judgment and order of conviction dated 31.12.2013 passed by the Fast Track Court at Dharwad in S.C. No. 46/2009. By the said judgment and order, the trial Court convicted the appellant/ accused for the offence punishable under Sections 498A, 302 and 201 of IPC and acquitted for the offence punishable under Sections 3 and 4 of Dowry Prohibition Act.
2. The brief facts of the prosecution case as per the complaint (Ex.P1) are that appellant married Ashwini (deceased) on 20.12.2004 and at the time of marriage, appellant was paid Rs. 30,000/- cash, 3 tholas of gold and utensils as varopachara and during Seemant function of the deceased, the appellant was given gold ornaments of 1 thola. Despite the same, appellant used to give ill-treatment to the deceased insisting her to bring more dowry amount from her parental place, the same was brought to the notice of the complainant by the deceased. Hence, the appellant was called by the complainant and he was advised not to give such ill-treatment to the deceased. Even then, the appellant did not heed to the advice and was still insisting the deceased to bring money from her parental place and in that regard he was giving ill-treatment to her. The couple were staying in the rented house of one Basavaraj Yadavatti at Dharwad, Gulaganjikoppa nearby Hanuman Temple. It is further stated in the complaint that, on 26.12.2008 at about 4.30 a.m. the appellant with his mobile No. 9448973389 phoned to the mobile of the complainant having No. 9845216245 and informed that Ashwini (deceased) committed suicide and asked him to come immediately. The complainant became perplexed and himself, his wife and other relatives came to Dharwad at about 10.30 a.m. and saw his daughter Ashwini lying dead in the first hall of the said house and she was in a supine position. There were injuries on the front side of the neck and appears to be because of throttling and there was a blackening of the skin at that place. Therefore, the appellant committed the murder of his daughter by throttling and hence, legal action may be taken against him. On the basis of the said complaint, case came to be registered in Dharwad Suburban Police Station Crime No. 246/2008 for the offence punishable under Section 498A and 302 of IPC against the appellant. The Investigating Officer, after conducting investigation, filed the charge sheet for the offence punishable under Section 498A, 302 and 201 of IPC and Sections 3 and 4 of Dowry Prohibition Act.
3. To prove its case, prosecution in all examined 27 witnesses as PWs. 1 to 27 and the documents Exs.P1 to P24 were produced and material objects M.Os.1 to 5 were got marked and on the side of the defence, the appellant/accused got himself examined as D.W.1 and no documents were produced.
4. After considering the materials placed on record, the learned trial Judge convicted the accused for the offence punishable under Sections 498A, 302 and 201 of IPC and acquitted for the offence punishable under Sections 3 and 4 of Dowry Prohibition Act. Being aggrieved by the judgment and order of conviction, the appellant/accused is before this Court in this appeal challenging the legality and correctness of the judgment and order of the trial Court on the grounds as mentioned in the appeal memorandum.
5. We have heard the arguments of the learned counsel appearing for the appellant/accused and also the arguments of the learned Addl. SPP for the respondent-State.
6. Learned counsel for the appellant has submitted that the judgment and order of conviction is contrary to the material placed on record. He has submitted that the learned trial Judge has wrongly read the evidence and came to the wrong conclusion in convicting the appellant/accused for the said offences. It is the first and foremost contention that materials show that when the complainant came to the spot, the Police Officers and other persons were already gathered
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