Udayakumar and Others - Appellants @HASH State

Budihal R.B., J. - This is the appeal preferred by the appellants/accused Nos. 1 and 2 challenging the legality and correctness of the judgment dated 23rd January, 2010 passed by the II Additional Sessions Judge at Gulbarga in S.C.No. 403 of 2006. By the said judgment the Trial Court convicted accused Nos. 1 and 2 for the offences punishable under sections 304-B and 498-A R/w section 34 of IPC and also for the offences under sections 3, 4 and 6 of Dowry Prohibition Act. The Trial Court acquitted accused No. 3 holding that the prosecution has not established prima facie case as against accused No.3.

The case of the prosecution in brief as per the charge-sheet that Smt. Mahananda the daughter of CW 1 Basavaraj and CW 2 Shantabai was given in marriage to accused No. 1 Udaykumar and the marriage was performed on 6.6.2002 at Jidaga village in a Math. During the marriage negotiations talk of the bridegroom and his parents and some other villagers were present and they demanded Rs. 1.00 lakh cash, 10 tola gold as a dowry. At the instance of the elders in the marriage negotiations talk it was decided that sum of Rs.51,000/- cash and Rs. 10,000/- for clothes and gold weighing 8 tolas to be paid as a dowry. Accordingly the dowry amount and gold was given in the hands of accused No.2 Basavaraj the father of the accused No. 1 and husband of accused No.3 at the time of marriage. After the marriage Mahananda started living in the house of accused along with her husband and parents-in-law. Six months later accused persons started demanding to bring additional amount of Rs.50,000/- as dowry. Elder brother of Mahananda told accused he does not have that much cash. For this reason accused Nos. 1 to 3 started harassing and torturing Mahananda. They used to beat often and also treating her with cruelty. At one time elder brother of the deceased and her maternal uncle advised them desisted from making such demand and assaulting Mahananda. It is further stated that gold ornaments given thrice by the deceased Mahananda. On 17.6.2007 the fact of continuous demand and harassment meted out to the deceased Mahananda. Accordingly ill-treatment given to her to bring additional sum of Rs.1.00 lakh as dowry was informed by her to her parents over phone. On the following day her parents came to Jidaga village and requested not to harass the deceased Mahananda and assured that they would pay the additional amount after the next harvesting season. Saying so the parents of Mahananda left in her husband�s house went to their place. It is further alleged that on the same night accused Nos. 1 and 2 came to their house in drunken condition, picked up quarrel with the deceased Mahananda. The mother of the deceased came and requested accused Nos. 1 and 2 not to harass Mahananda. Due to unbearable cruel ill treatment meted out by the accused, Mahananda went to nearby public well in the night and jumped into the well, committed suicide. On the basis of said complaint a case has been registered for the offences punishable under sections 498-A, 304-B R/w section 34 of IPC.

After completing the investigation the Investigating Officer filed the charge-sheet against the accused persons for the offences punishable under sections 304-B, 498-A R/w section 34 of IPC and also under sections 3,4 and 6 of Dowry Prohibition Act.

The prosecution in order to prove its case in all examined 15 witnesses as PWs 1 to 15 and produced 30 documents at Ex.P-1 to P-30 and 7 material objects. On the side of the defence no witnesses were examined, but marked Ex.D-1 during the course of cross-examination.

I have heard the arguments of learned counsel appearing for the appellants/accused Nos. 1 and 2 and also the learned High Court Government Pleader.

Learned counsel appearing for the appellants during the course of arguments made submission that looking to the entire material placed by the prosecution, the materials will not make out a case for the offence under section 304-B of IPC. He made the submission that absolutely there is no demand for dowry and even looking to the statement of parents and other witnesses relied upon by the prosecution there are no specific allegations that any of the accused made the demand for dowry amount. Learned counsel made the submission that at the Seemant function, so also when the child was born and at the time of naming ceremony and putting the child in the cradle ceremony, there may be some gold ornaments given, but it is a customary practise and whatever the articles they were given or even some amount is also spent it will not come under the term dowry. Learned counsel further made submission that except the parents PWs 1 and 4 there is no independent witnesses about the alleged ill treatment and harassment to the deceased. Learned counsel submitted that even presumption under section 113-B of the Evidence Act will not be attracted in this case. Because there is no evidence that immediately prior to the death of the deceased she was subjected to the cruel treatment by the husband and other family members. Hence he submitted that the Trial Court has not at all looked into this legal requirements and aspects of the matter and simply proceeded with holding that the prosecution established the fact that there is demand for dowry by the accused Nos. 1 and 2 and wrongly read the evidence and wrongly convicted the accused Nos. 1 and 2. He also draw the attention of this Court to the contents of the complaint, so also the portion of the evidence of the witnesses and he made submission that during the course of trial there is improvement in the case of the prosecution to the effect that two days earlier to the incident the parents PWs 1 and 4 came to the place of the accused persons and they advised accused Nos. 1 and 2 to treat the deceased properly and PW 1 left PW 4 mother of the deceased in the house of the accused. Learned counsel submitted that this is a material fact. If really PW 4 was left in the house of the accused, two days earlier to happening of this incident, nothing prevented the complainant to make mention about this aspect in the complaint. It is his further submission that looking to the contents of the inquest mahazar Ex.P-2 and the post-mortem report Ex.P-5, both these documents clearly goes to show that there are no external injuries on the body of the deceased. Learned counsel submitted that deceased was insisting that she wanted to reside separately from in-laws and other member of the family and as she was not succeeded in her attempt, she committed suicide. The counsel submitted that looking to the entire material placed on record, the prosecution utterly failed to prove the case beyond reasonable doubt as against accused Nos. 1 and 2. It is also his submission that on the same set of evidence, the accused No.3 is acquitted, whereas accused Nos. 1 and 2 have been convicted, this is also not correct. Hence, he alternatively submitted that at the most, the offence may fall under section 306 of IPC. but it can not be under section 304-B of IPC as a dowry death. Hence, he lastly submitted to allow the appeal and to set aside the judgment and order of conviction passed by the Trial Court and to acquit the appellants/accused Nos. 1 and 2 for all the offences.

Learned counsel for the appellants/accused Nos. 1 and 2 in support of his contention relied upon the following decisions;

(1) 2008 (16) SCC 512 : AIR 2008 SC 2327 : 2008 Supreme Court 7695 (Narayanamurthy v. State of Karnataka and another)

(2) 2013 (3) Crimes 255 (SC) (Modinsab Kasimsab Kanchagar v. State of Karnataka and another)

(3) 2012(2) Crimes 324 (SC) (Rohtash v. State of Haryana)

(4) (2013) ACR 364 Supreme Court (Vipin Jaiswal v. State of A.F Rep by Pub. Prosecutor.)

(5) 2000( 1) Crimes 10 (SC) (Sakhi Mandalani v. State of Bihar and Ors.)

(6) [2013] ACR 837 Supreme Court (S. Anil Kumar alias Anil Kumar Ganna v. State of Karnataka)

(7) 2011(2) Crimes 54 (Bom) (John Vasant Khandagale v. The State of Maharashtra).

(8) 2012(3) Crimes 19 (Pat) (Etwari Mahton & Anr. v. State of Bihar.)

(9) 2013 Cr R 860 (Kant.) State of Karnataka and others v. S. Dinesh Kumar and another.

(10) 2013 Cr R 318 (Kant.) (State of Karnataka v. Nagesh and others).

Per contra the learned High Court Government Pleader during the course of arguments made the submission that the death has taken place within seven years from the date of the marriage. The death has taken place in the house of the deceased when she was staying with the accused. He also made submission that there is evidence of PWs 1 to 6 with regard to ill treatment and harassment meted out to the deceased in connection with dowry demand. Hence, he submitted that there is presumption under section 113- B of the Evidence Act which is not rebutted by the appellants/accused during the course of the trial. Hence he submitted that looking to the material placed on record, the Trial Court rightly appreciated the entire material both oral and documentary and rightly comes to the conclusion in convicting the accused persons. In support of his contention the learned High Court Government Pleader relied upon the decision of the Apex Court reported in 2015(4) Crimes 583 (SC).

I have perused the grounds urged in the appeal memorandum, oral evidence of the prosecution witnesses P.Ws.l to 15, documents produced in the case and also perused the judgment and order of conviction passed by the Trial Court, so also I have perused the decisions relied upon by the learned counsel appearing on both sides, which are referred above.

The father of the deceased filed the compliant, which is marked as per Ex.P-1, it is the case of the prosecution that deceased Smt. Mahananda, who has been given in marriage to accused No. 1-Uday Kumar, was subjected to ill-treatment and harassment in connection with the dowry amount of Rs. 1,00,000/- and also 10 tholas of gold. In this connection, I have perused the prosecution materials and the evidence of the prosecution witnesses.

Looking to the materials, as per the evidence of the mother of the deceased, who has been examined as P.W.4, and another person i.e., P.W.6, who is the relative of P.W.4, it shows that it is P.W.5-Mallikarjun, Hanumantharay, who is the brother of P.W.4, and accused No.2, are the only three persons present in the marriage talks. If the said statement is taken into consideration, then the evidence of P.W. 1, who is the father of the deceased, is not helpful to the case of the prosecution because it shows that he has not participated in the marriage talks to say that there was a demand of dowry by the accused persons, even before the marriage and at the time of marriage talks also. Some of the prosecution witnesses have also deposed that even the father, mother, brothers and some elders were present on the side of the deceased in the marriage engagement talks and on the side of the accused, the accused persons along with elders were present. Looking to this material produced by way of prosecution witnesses i.e., P.Ws.l to 6, who said to have supported the case of prosecution, there is no consistency as to the evidence of the prosecution regarding who actually participated in the marriage engagement talks and what was agreed upon between two sides. Perusing the com-plaint-Ex.P-1, it is mentioned by the complainant that at the time of marriage they gave 8 tholas of gold and a sum Rs.51,000/- cash as dowry and Rs. 10,000/- for clothes and a sum of Rs.50,000/- for purchase of utensils, except this the complainant has not made any allegation in the complaint as such regarding further demand of dowry made by the accused persons. As I have already observed above, looking to the prosecution witnesses, more particularly i.e., P.Ws.4 and 6, who have admitted during the course of cross-examination that it is only P.W.5-Mallikarjun, the brother of P.W.4 and accused No.2 only, were participated in the marriage engagement talks. Under such circumstances, it is those witnesses, who have to satisfy the Court with regard to the talks and what has been agreed upon between the parties. In this regard, let me refer to the oral evidence of P.W.5-Mallikarjun, who has deposed in his examination-in-chief that, they have given his sister in marriage to accused No.l. He has deposed that, he along with his brother-in-law Hanumantaray (P.W.6), and his father, mother and the elders of the village have went for the marriage talks. The accused persons demanded 10 tholas of gold and Rs. 1,00,000/-, but the elders, who were present on both sides, have decided for a sum of Rs.51,000/- and Rs. 10,000/- towards cloth and 8 tholas of gold. He has further deposed that totally they gave Rs.61,000/- and 8 tholas of gold to accused No.l and performed the marriage of his sister with accused No. 1. After the marriage, his sister went to accused No. 1 for leading the marital life. She was alright for about 5-6 months. Thereafter, accused No.2 came to his shop and told that accused No. 1 is not having any work and asked him to give Rs. 1,00,000/- for the purpose of his business, for which he told that he will not give the amount, at the most they will assist in opening the Xerox shop at Gulbarga or at Alanda. He has further deposed that his sister informed him about the ill-treatment given by the accused persons over phone and she also informed that she was assaulted by the accused persons. He further deposed that when his sister was pregnant and while performing Shrimant function, the accused persons asked 5 tholas of gold, but they convinced the accused persons and gave 2 tholas of gold in the said function; and even at the time of Jawala function of the child of his sister, again they have given 2 tholas of gold at that time also accused demanded 5 tholas of gold. When he had been to house of the deceased to take her to her parental place for the function, at that time also the accused persons have insisted that they will send the deceased only if, they give the gold as demanded by them and at that time also they gave gold to the accused. Then, his brother and his brother-in-law went to the house of accused person and advised them in that regard. He has further deposed that when he went to Jidaga, he enquired with his mother, who told that on the previous day during night accused Nos. 1 and 2 came to the house consuming alcohol, abused the deceased in filthy language and even they have abused his mother and they assaulted 2- 3 times on his sister and then, his mother and the deceased slept after having the meals. During night at 1.00 a.m. when his mother woke up and saw his sister was not there in the house, she made hue and cry and when searched, his sister was not found in the house. He further deposed that morning at 6:00 a.m. the villagers informed that his sister�s dead body is in the well, which is outside the village. When he went to Jidaga at 10:00 a.m the accused persons were not there. Then himself and his father went to the police station and informed about the same.

In the cross-examination he deposed that when accused No.2 came for the first time to his shop and asked Rs. 1,00,000/- it was after six months after the marriage of his sister. He deposed that often times they were asking for the money. He denied the suggestion that in his statement given before the police he has not stated about Rs. 1,00,000/- cash demanded by the accused. He deposed and admitted as true that before marriage, in the engagement talks himself, his brother-in-law and accused No.2 only were present and at that time both sides agreed for Rs.61.000/- and 8 tolas of gold. He denied the suggestion that at that time, there were no objections from either side.

P.W.6 Hanamanth deposed in his evidence in examination-in-chief that accused demanded Rs. 1,00,000/ cash and 10 tolas of gold. But they agreed to give Rs.51,000/- cash and 8 tolas of gold. After the marriage, Mahananda lead the marital life for about 5-6 months happily and 8-9 months after the marriage, his sister informed him that the accused persons are insisting her daughter to bring additional amount and also gold. Himself, his sister and elder son of his sister went to the house of the accused persons and advised them. At that time, Mahananda was in the house. She told before him about the accused persons giving ill-treatment and harassment and she told him that she will also come to the village along with them. She told before him that accused persons are giving such ill-treatment insisting her to bring additional amount and gold. The accused demanded Rs. 1,00,000/- for business purpose, for that they told that, they have given all the things which are agreed at the time of marriage and it is not proper on their part to demand for additional amount.

In the cross-examination he deposed that 15 days earlier to the marriage there were engagement talks. Himself. Bhimashankar and Mallikarjun only participated in the said talks. For the first time Mallikarjun informed him over phone about the accused persons demanding Rs. 1.00,000/- He further deposed that Mallikaijun, his sister, brother-in-law of his sister and other witnesses have also informed him over phone about the accused persons demanding the additional amount. Shivalingappa the son of his sister went to the house of the accused persons about 8-9 months after the marriage and advised them.

Looking to the evidence of PW.l-father who lodged the complaint deposed that at the time of marriage accused demanded Rs. 1,00,000/- dowry and 5 tolas of gold. They gave Rs.51,000/- cash and 5 tolas of gold. The accused persons were insisting to bring the remaining Rs.50,000/- cash and the gold and accused were giving ill-treatment to his daughter. The deceased when came to their house also informed about the same. When his daughter was conceived and at her Seemanth function accused demanded 5 or 10 tolas of gold, but they gave 2 tolas of gold. After the delivery, his daughter was taken to her husband�s house. Some days they have treated her properly. There after wards, again they started insisting her to bring dowry, which was told by his daughter. When she again came to their house, they pacify her and again sent her to her husband�s house. While coming back after leaving her daughter they advised accused persons to treat his daughter properly and at the time of Javala function of his grandson, accused persons demanded 3 or 4 tolas of gold but he gave 2 tolas of gold. In spite of that also accused were giving ill-treatment to the deceased to bring the additional dowry amount which was told by deceased before him. There after wards, for the marriage of his son Sharanabasappa and Bhimashankar the deceased came to her parental place. At that time accused No.l and sister of accused No.l also came. At that time also they gave 1 tola of gold to accused No.1 and they gave golden chain to grandson. Even then accused were insisting her for additional amount and gold. Two days earlier to the incident, his daughter phoned to him and informed that accused were giving ill-treatment to her and requested to come and take back her to the native place. Then himself and his wife went to the house of accused and consoled the deceased and he left his wife there only and he alone came to the village. On the next day, when he was in the village, accused No.2 Bhimashankar phoned to him informing that his daughter committed suicide by jumping into well. Then he went to the village of the accused and saw the dead body of his daughter floating in the water and his wife was nearby the well itself and he enquired with his wife why she fell into the well. His wife informed him that on the previous night accused Nos. 1 and 2 picked up quarrel and they were questioning that they will need amount why they are not giving amount, abused the deceased in filthy language as �bosadi� and they insulted her. Then, he went to the police station and gave the complaint as per Ex.P1. MOs. 1 to 7 are the belongings, which were seized from the dead body of the deceased. In the cross-examination he deposed that the contents of the complaint are written by his sons. He was not present when the contents of the Ex.P1 written. After the inquest panchanama and four days thereafter the police have recorded his another statement. The engagement talks were informed to him by his son he has not personally participated in the engagement talks. For the Naga Panchami festival his daughter came to the house. After the said festival, accused No. 2 came to the house to take deceased to their house. At that time there were no difference of opinion. Even the Diwali festival was also celebrated without any such difference of opinion. At that time also his daughter came to his house and there afterwards accused took her without any differences to their house. One time there was a miscarriage to his daughter. After treatment she was again sent to her husband�s place. There afterwards, second time his daughter was conceived they fixed the Seemanth function at that time also function went on smoothly without any differences. They fixed the Javala function of the children of deceased at that time also it was performed without any difference of opinion. His daughter brought to his notice for the first time about the demand made by the accused for the additional amount and gold after her second delivery. He denied the suggestion that accused persons have not at all demanded for additional amount and gold and they have not at all given any gold to the accused persons. He admitted as true that at the time of marriage of his son, his son-in-law and the daughter were brought to their house and on the day of marriage all the relatives also came. After the death of his daughter, he has not enquired with any body that why she has expired. Even he has not enquired with the accused also. He has deposed that he has not stated before the police as per Ex.D1.

PW.2 Vishwaradhyaswami deposed in his evidence that accused demanded Rs. 1,00,000/- and 10 tolas of gold. They altogether agreed to give Rs.51,000/- cash and Rs. 10,000/- towards clothes and 8 tolas of gold. After the delivery of the second child when Mahananda came to the native place, he met with her and enquired with her whether she is happy. At that time she told before him that for the purpose of getting job or the work her husband is in need of money and in that regard he is giving ill treatment to her. So he advised the complainant-the father of the deceased that he is having 5 sons and only 1 daughter and treat the daughter also as one son and allow her to stay in their house itself. But the complainant did not agree for that.

In the cross-examination he deposed that in the marriage engagement talks Basavaraj Patil, Annarao Patil, Shivanand Patil, the father and mother of the deceased and the brothers of the deceased totally 8 to 10 persons went. The engagement talks took place in the house of the accused.

PW.3 Basavaraj deposed in his evidence that two months earlier to the marriage there were engagement talks. He was also present in the said talk. The accused demanded Rs. 1,00,000/- and 10 tolas of gold. But they all agreed to give cash of Rs.51,000/- and 8 tolas of gold. Two months earlier to the incident Mahananda came to her parental place and she came to him as she was not feeling well. At that time, he enquired with her and she told that her husband and family members insisting her to bring the additional dowry amount and in that regard they were giving ill-treatment and harassment to her. There afterwards, he came to know Mahananda committed suicide by jumping into the well. He also deposed that he does not know why she expired.

In the cross-examination he deposed and admitted that he is the family doctor of the family of the complainant. He denied the suggestion that he did not went to the marriage talks and in his presence no marriage talks took place. He gave the statement before the police in this regard. He denied the suggestion that in his statement before the police he has not stated that two months earlier to the incident Mahananda when came to him told before him about the ill-treatment given by her husband�s family. He denied the suggestion that as he is a family doctor of the complainant�s family in order to help them giving false evidence.

PW.4 who is the mother of the deceased deposed in her evidence that at the time of the marriage they gave Rs.51,000/- cash as dowry, Rs. 10,000/- towards clothes and 8 tolas of gold. After the marriage, her daughter went to the husband�s house and she was happy for six months. After six months accused No.2 Bhimashankar came to Gulbarga and requested to get job for his son accused No.l, i.e., running the xerox machine and requested to give Rs. 1,00,000/- for the said work, which was informed by her son to herself. She further deposed that her son Mallikarjun told accused No.2 that they will not give the money but they will get the job or the work and because of that reason accused started giving ill-treatment and they were insisting the deceased to bring Rs. 1,00,000/- and 10 tolas of gold and in that connection they were assaulting the deceased and the deceased was informing about the same over the phone. She told same whenever she used to come to the native place. She also deposed that at the Seemanth function of the deceased, accused demanded 5 tolas of gold and they gave 2 tolas of gold and even when there was delivery of a male child and when Mahananda was sent back to her husband�s house after the delivery, they gave 1 tola of gold to the child. Accused were insisting her to bring the amount and they were assaulting her, the deceased was telling over the phone about the same. One day in the evening deceased phoned to them and requested to send the father urgently. She further told accused No.3 and accused No. 1 were assaulting her, at that time, when she went to rescue to her daughter, she also sustained 2 to 3 blows. Accused Nos.1 and 2 came to the house consuming alcohol during the night and started to ill treat the daughter insisting her to bring Rs.l ,00,000/- and gold. She requested them that they will give amount but treat her properly. Herself and her daughter slept in one room and in the night when she woke up and saw her daughter was not on the cot. She searched she was not there. She cried loudly then the household members woke up they also made the search. She went to the road she was crying. Even then her daughter was not traced. On the next day, people of the village informed that dead body of her daughter is in the well water. She went to the said well but she saw only the saree of her daughter. They informed to the relatives over the phone. Thereafter, her husband and her children came to the said place. They went to the police station and informed the police.

In the cross-examination she deposed that in the marriage talks Mallikarjun, Hanamantraya and accused No.2 only participated. Before her death, her daughter insisted them to come to Jidaga. She herself received the phone call. Her daughter had not informed the same to her son at Gulbarga. She further deposed accused Nos.2 and 3 and herself and her daughter were talking till 11:00 p.m. on the previous night. She denied the suggestion that false case is registered against the accused persons. She admitted that her grandchildren are still with the accused persons.

Looking to the evidence of the prosecution witnesses so far as the payment of dowry amount of Rs.51,000/- and 8 tolas of gold is concerned, there is no consistent evidence as such. The evidence of the prosecution witnesses more particularly PWs. 1 to 6 is contradictory with each other. Therefore, it is difficult for this Court to accept the contention of the prosecution that the accused persons demanded Rs. 1,00,000/- and 10 tolas of gold at the time of marriage talks and in turn they agreed to give only Rs.51,000/- cash and 8 tolas of gold and Rs. 10,000/- towards clothes and Rs.50,000/- towards purchase of the utensils.

Perusing the complaint averments as I have already observed above even PW. 1 has not narrated the contents of the complaint. The contents are not written in his presence. He does not know who written the contents of the complaint though at one stretch he stated that his son wrote the contents of the complaint. Under such circumstances, I am of the opinion that so far the case of the prosecution that there was a demand for dowry amount is concerned, there is no cogent, satisfactory and acceptable evidence. Even with regard to the 8 tolas of gold is concerned, looking to the evidence of the prosecution witnesses 2 tolas of gold was given at the time of Seemanth function of the deceased and another 2 tolas of gold was given at the time of Javala function of the two children of Mahananda and at another time also when deceased came for the delivery and while send back her they gave 1 tola of gold chain to the child of Mahananda. Looking to these materials placed on record it goes to show that it is the customary practise and according to that they have given 8 tolas of gold to the deceased and her children.

Under such circumstances, unless and until the prosecution placed the worth believable material on record it is not sufficient to come to the conclusion that she was insisted by the accused persons to bring the additional dowry amount and also 8 tolas of gold as additional dowry.

It is no doubt true it has come on record through the mouth of PWs.l to 6 that after the marriage, when the deceased went to lead marital life, she was insisted by accused No. 1 and the family members to bring additional amount of Rs. 1,00,000/- and 8 tolas of gold. But so far as the demand of Rs. 1,00,000/- is concerned, the evidence on record goes to show that it is not by way of additional dowry amount, but it is for the purpose of getting some work/job to accused No.l who was not having any work and in that connection accused No.2 came to PW.5 Mallikarjun at Gulbarga and requested with him for Rs. 1,00,000/- for getting the job of running zerox shop for accused No. 1 and the evidence also goes to show that PW.5 Mallikarjun told accused No.2 that they will not give amount of Rs. 1,00,000/- and at the most they will help them in opening zerox shop either at Aland or at Gulbarga. This goes to show that there was demand made by the accused persons for an amount of Rs. 1,00,000/- but so far as 8 tolas of gold also concerned, the witnesses PWs.1 to 6 deposed in their evidence that accused were insisting Mahanand to bring gold also apart from Rs. 1,00,000/-. But there is no specific evidence through the mouth of these PWs.l to 6 that this amount of Rs. 1,00,000/-and 8 tolas of gold is by way of additional dowry amount. Considering this aspect of the matter, I am of the opinion that the alleged offence under Section 304-B of IPC and Section 3, 4 and 6 of the Dowry Prohibition Act will not be attracted to this case. The trial Court has not properly appreciated the evidence in the proper perception. The trial Court wrongly read the evidence and wrongly comes to the conclusion that there was a demand for the dowry amount at the time of marriage and even after the marriage also. Therefore, the conviction of accused Nos.1 and 2 for the offences punishable under section 304-B of IPC and Sections 3,4 and 6 of the Dowry Prohibition Act is not sustainable in law.

So far as the evidence of PWs.1 to 6 regarding the additional amount of Rs. 1,00,000/- it may be for the purpose of some work or for the job to accused No. 1. But there is consistent evidence through the mouth of all these witnesses i.e. accused were insisting Mahananda to bring additional amount of Rs. 1,00,000/- and 8 tolas of gold. Even independent witnesses doctor who has been examined as PW.3 who is an independent witness not connected to the family of the complainant or the accused person deposed in his evidence that when Mahananda came to the native place and as he is a family doctor of the complainant she came to him because she was not feeling well at that time when enquired with Mahananda she told before him that accused were giving ill-treatment to her, insisting her to bring amount of Rs. 1,00,000/- and 8 tolas of gold. Even he has deposed that everything has already given as agreed and it is not proper for the accused to make further demand. The evidence on record through the mouth of PWs.1 to 6 also to the effect that Mahananda was informing her parents and her brothers over the phone about the ill-treatment and harassment meted out to her in connection with an amount of Rs. 1,00,000/- and 8 tolas of gold.

During the cross-examination all these witnesses though it was suggested that the accused persons never made such demand for additional amount Rs. 1,00,000/- and the gold of 8 tolas the said suggestion were denied by the witnesses and during the course of cross-examination of prosecution witnesses PWs.1 to 3 nothing has been elicited from their mouth so as to disbelieve the case of the prosecution regarding the harassment and ill-treatment meted out to deceased in connection with the amount of Rs. 1,00,000/- and further 8 tolas of gold.

When suggested to PWs. 1 to 6 that the accused persons never made such demand for additional sum of Rs. 1,00,000/- and the gold of 8-tolas, the said suggestions were denied by the witnesses during the course of cross examination and nothing has been elicited from their mouth so far as to dis-believe the case of the prosecution regarding the harassment and ill-treatment meted out to the deceased in connection with the amount of Rs. 1,00,00/- and 8-tolas of gold. Under such circumstances, the prosecution is able to place satisfactory material to show that the deceased was subjected to ill-treatment and harassment in connection with the demand of said amount of Rs. 1,00,000/-. I have perused the inquest mazhar Ex.P-2 and post mortem report Ex.P- 5. It is no doubt true that in these two documents, there is 110 mention of any external injuries over the dead body of the deceased. The ill-treatment and harassment may be both physical as well as mental. The evidence of the prosecution witnesses goes to show that Mahananda used to call her parents over the phone and was informing them that accused persons are insisting her to bring the additional dowry. Therefore, as it was not possible for her to live in the house of her husband and she was requesting her parents to come and take her to the parental house. Even it has come on record that she also informed that she will jump into the well and commit suicide. Looking to these materials placed on record by the prosecution, it goes to show that she was subjected to ill-treatment and harassment to bring the amount of Rs. 1,00,000/- and 8-tola of gold. Therefore, the material goes to show that accused persons committed the offence u/Sec.498-A of IPC. The fact that the deceased jumped into the well of one Annarao and committed suicide is not in dispute. Looking to the cross examination of the prosecution witnesses. there is no definite defence made out by the accused persons as to how she committed suicide. It is also not the case of the defence during the course of cross examination that she was suffering from any serious illness or she was mentally retarded. No such case is made out by the defence during the course of cross-examination. The incident has taken place when she was leading her marital life in the house on her husband and as per the case of the prosecution and the evidence of PWs-1 to 6, she was subjected to ill-treatment and harassment in connection with the amount of Rs. 1,00,000/- and 8-tolas of gold when she was leading her marital life in the house of the accused persons. Accused as members of the family ought to have known the reason for the deceased to commit suicide and more particularly accused No. 1 being the husband and life partner of the deceased, ought to have explained before the Court when he has been examined before the Court u/Sec.313 of Cr.P.C., as to what is the real reason for the deceased to commit suicide. Under such circumstances, unless and until there are such circumstances of ill-treatment and harassment, nobody will take such extreme step to put an end to life. During the course of examination u/Sec.313 of Cr. P.C., though accused No.1 answered that he is having witnesses to examine on his side, but, in-fact, he has not examined. Under such circumstances and looking to the totality of the circumstances, it goes to show that the accused persons i.e. appellant Nos. 1 and 2 abetted the deceased to commit suicide because of such ill-treatment and harassment. It is no doubt true there is no charge framed by the trial Court for the offence u/Sec.306 of IPC for the accused persons abetting the commission of suicide by the deceased. The provisions of Section 221(2) of Cr. P.C., reads as under :-

Where it is doubtful what offence has been committed.-

(1) .....................

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

Therefore, looking to this provision, even though, there is no specific charge framed as against the appellants/accused for the offence u/Sec.306, IPC, but looking to the materials placed on record and the evidence of PWs-1 to 6, they clearly goes to show that the deceased has been subjected to ill-treatment and harassment in connection with the amount of Rs. 1,00,000/- and 8-tola of gold and thereby the appellants/accused abetted the commission of the offence which is punishable u/Sec.306, IPC. Therefore, I am of the opinion that the appellants/accused have committed the offence punishable u/Sec.306, IPC and not u/Sec.304-B, IPC and Section 3, 4 and 6 of Dowry Prohibition Act.

I have also heard the learned counsel for the appellants/accused Nos.1 and 2 and the learned HCGP on the sentence to be imposed on the accused persons.

The learned counsel for the appellants/ accused Nos. 1 and 2 made the submissions that there are no prior antecedents so far as the appellants/accused Nos.l and 2 are concerned. Appellant No.2 is aged about 60 years as of now and accused No. 1 is aged 30-years. He also made the submission that the children born to accused No. 1 through the deceased are still with the accused persons and accused are taking care of the children. Hence, he made the submission that in view of these things, lenient view may be taken and lesser punishment may be imposed on accused Nos.1 and 2.

Per contra, learned HCGP made the submission that deceased was put to ill-treatment and harassment by the appellants/accused and for that reason she committed suicide. Therefore, maximum punishment may be imposed on the appellants/accused Nos.1 and 2.

I have perused the records of the case and it has come on record during the course of evidence of the prosecution witnesses that the children are staying with the accused persons and as submitted by the learned counsel for the appellants, accused No.2 Bhimashanker is aged 60-years and so far as accused no. 1 is concerned, it is submitted that he is the main person to take care of the children who are still small kids. Considering these materials placed on record, I proceed to pass the following :-

ORDER

i. The appeal is allowed in part.

ii. The Judgment and Order of conviction passed by the Sessions Court dated: 23.1.2010 in S.C.No.403 of 2007, convicting the appellants/accused for the offence punishable u/Sec.304-B of IPC and Section 3, 4 and 6 of Dowry Prohibition Act is set-aside.

iii. The appellants/accused Nos.l and 2 are convicted for the offence punishable u/Sec.498-A and 306 of IPC.

iv. The appellants/accused Nos. 1 and 2 are sentenced to undergo imprisonment for a period of two years and to pay fine of Rs. 10,000/- each and in default of payment of fine amount, they have to further undergo simple imprisonment for a period of nine months for the offence u/Sec.498-A R/w 34 of IPC.

v. The appellants/accused Nos. 1 and 2 are also sentenced to undergo imprisonment for a period of three years and to pay fine of Rs.25,000/- each and in default of payment of the fine amount, they have to further undergo simple imprisonment for a period of one year for the offence u/Sec.306 r/w 34 of IPC.

vi. The fine amount shall be paid within four (4) months from the date of receipt of copy of this order.

vii. If the fine amount is recovered, a sum of Rs.65,000/- out of Rs.70,000/-, be paid to P.W.-1-Basavaraj and P.W.-4-Shanthabai, who are the father and mother of the deceased respectively, as compensation under Section 357 of Cr. P.C. and remaining amount of Rs.5,000/- to be remitted to the State.

viii. Both the above sentences shall run concurrently.

ix. The appellants/accused Nos.1 and 2 are entitled to set off of the custody period which they have already undergone.

The trial Court has to take steps to secure the presence of accused Nos. 1 and 2 to undergo the imprisonment.