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IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
A.S. Bopanna, B.A. Patil, JJ.
State - Appellant
Versus
Arjun Manikappa Nagure and others - Respondents
Criminal Appeal No. 3647 of 2010
Decided On : 05-01-2017
CODE OF CRIMINAL PROCEDURE, 1973 – Section 354 – Penology – Sentence – While awarding sentence the court has to strike a balance between refor mative and punitive theories by bearing in mind nature, circumstances of offence, back ground of victim, social background of accused, economic and mental condition, prospects of rehabilitation, absence of mens rea, instigation and influence, delay in disposal of case, state of health of accused, gravity of offence whether he is habituated, whether the offence is well planned, and the socio-economic offences. Further, court has to see degree of criminality and desirability to impose punishment as measure of social necessity and also as means of deterring other potential offenders.
CODE OF CRIMINAL PROCEDURE, 1973 – Section 378 – Appeal against acquittal – Interference not to be made when two views are possible and trial court has taken one of possible views.
INDIAN EVIDENCE ACT, 1872 – Section 113-B – Presumption under – Rebuttal – Deceased dying by consuming pesticide within months of marriage – Demand of dowry and harassment soon before death proved – Fact that accused had taken deceased to hospital is not sufficient to rebut presumption.
INDIAN EVIDENCE ACT, 1872 – Section 113-B – Presumption as to dowry death – Complaint by father of deceased that deceased was harassed and ill-treated for dowry and she died 8 days after she was left in matrimonial house after reaching settlement – Consistent version of father and other witnesses that prior to marriage there were marriage talks and as decided he has given gold and cash at time of marriage – Thus, there was demand for dowry and though it was satisfied deceased was harassed for further demand – Even a panchayat was held when deceased told about harassment for additional dowry – Course of events clearly showede that there was demand for dowry – Mandatory presumption under Section113-B ought to be raised.
INDIAN EVIDENCE ACT, 1872 – Section 113-B – Presumption as to dowry death – Plea by husband that demand of money was for securing job and not dowry – It was incumbent on husband to prove for which job money was demanded and what was the obligation of family of deceased to pay money – In the absence of proof presumption under Section 113-B ought to be raised.
INDIAN EVIDENCE ACT, 1872 – Sections 145, 162 – Contradictions appearing during cross-examination of witness with previous statement – It can be looked into only if witness is confronted with his earlier police statement by marking statement and confronting same to I.O. and he admiting that statement was made by witness.
INDIAN PENAL CODE, 1860 – Section 304-B – Dowry death – Defence that deceased committed suicide because of Asthama cannot be said to be just and reasonable defence – Asthama is not unbearable disease – Deceased who married a few months before, ending her life only because of asthama, would be improbable.
B.A. Patil, J.
This appeal is preferred by the State assailing the order of acquittal dated 15.2.2010 passed in SC. No. 52/199 by the Fast Track Court-I, Gulbarga acquitting accused 1 to 3.
2. The case of the prosecution in brief is that marriage of the deceased Kalavathi with accused No. 1 was performed on 19.5.1998. Accused No. 1 along with his parents-accused Nos. 2 and 3 who were residing together at Kajuri Village of Aland Taluka started harassing the deceased Kalavathi both physically and mentally for demand of additional amount of dowry and gold in spite of parents of the deceased having paid an amount of Rs. 21,000/- and five tholas of gold at the time of marriage. Due to the ill-treatment and harassment caused by the accused persons deceased Kalavathi committed suicide by consuming pesticide in the matrimonial house. On the basis of the complaint lodged by PW.2-father of the deceased, an investigation was done and after completion of investigation, charge sheet came to be filed against the accused persons. After filing of the charge sheet, by following the procedure laid down under Section 207 of Cr.P.C. the committal Court committed the case to the Sessions Court. After committal, the Sessions Court took the cognizance, secured the presence of the accused and after hearing about the charge, charge came to be framed against accused Nos. 1 to 3. Since the accused have pleaded not guilty the trial was fixed.
3. In order to establish its case, the prosecution in all has examined 15 witnesses and got marked the documents at Exs.P1 to P7 and MO. Nos. 1 to 4. During the course of examination, defence has got marked Exs. D1 and D2. However, no evidence was led on behalf of the accused. After closure of the prosecution evidence, statement of the accused came to be recorded under Section 313 of Cr.P.C. I and they denied incriminating material against them. After hearing both the sides and on evaluation of the material on record, the trial Court passed the impugned order acquitting the accused persons.
4. It is contended by the learned Additional SPP that the trial Court without assigning the valid reasons has acquitted the accused even though the deceased has died within a short span of 4 to 5 months after her marriage. It is also contended that even though there is corroborative evidence to prove the fact that the death is homicidal due to ill-treatment and harassment caused by accused Nos. 1 to 3, the trial Court is not justified in acquitting them. It is his further contention that when death has occurred within seven years after the marriage, the Court below ought to have drawn the presumption under Section 113B of the Indian Evidence Act ('Act' for short) which is mandatory. He has further contended that once the prosecution discharges its initial burden on preponderance of probabilities, all the ingredients of dowry death as laid under Section 304B of IPC are attracted, then the burden shifts upon the accused to rebut the said presumption. Even though the said presumption has not been rebutted, the trial Court acquitted the accused which is not sustainable in law. He has also contended that in view of undisputed fact of the date of marriage, the Court below ought to have concluded that the death has occurred within seven years of marriage and it ought to have drawn the presumption. In this behalf, he has relied upon various decisions of the Apex Court. On these grounds, he prayed for allowing the appeal by setting aside the impugned order.
5. Per contra, the learned counsel for the respondents-accused has vehemently argued and contended that basic foundation for initiation of the case is the complaint at Ex.P3 which is not proved. He has urged that in Ex.P3 it is nowhere stated as to when the demand and payment of dowry was made. In the absence of such material, no presumption can be drawn. He has also contended that PW.2, the complainant has made major improvements in the evidence about payment of dowry and cruelty
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