Dismissed

Smt. Shakuntala Premanath Jadhav v. the State of Karnataka

Karnataka HC9 Dec 2021CRL.A/100057/2018

Case brief

AI extract

What is this about?

Appeal by the mother-in-law, father-in-law and sister-in-law against conviction for dowry death and related offences after the deceased was found burnt in the matrimonial home. Reappreciating the evidence, the court held the death was homicidal, dowry demand established and the presumption under Section 113-B unrebutted, and dismissed the appeal.

What the court decided

AI extract

Smt. Shakuntala Premanath Jadhav Vs the State of Karnataka — Dowry and Cruelty | Karnataka HC (2021)

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CRL. A. No.100057/2018

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF DECEMBER, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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AND

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THE HON’BLE MS. JUSTICE J.M.KHAZI

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CRIMINAL APPEAL No.100057/2018

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BETWEEN:

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1 . SMT. SHAKUNTALA PREMANATH JADHAV AGE:68 YEARS OCC. HOUSEHOLD and BUSINESS R/O MAHANTESH NAGAR, ASHRAY PLOT RAMADURGA, DT: BELAGAVI.

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2 . SHRI. PREMANATH MADHAVARAO JADHAV AGE:71 YEARS, OCC. NIL R/O: MAHANTESH NAGAR, ASHRAY PLOT RAMADURGA, DT: BELAGAVI

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3 . SMT. RAMABAI W/O AMBAJI SHINDE AGE:31 YEARS, OCC. HOSUE WIFE, R/O BIJAPUR UPALI BURJ COLONY, DT: VIJAYPUR.

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... APPELLANTS

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(BY SRI.S.B.DEYANNAVAR, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY RAMADURGA POLICE STATION R/B SPECIAL PUBLIC PROSECUTOR HIGH COURT BENCH DHARWAD. ... RESPONDENT

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(BY SRI.V.M.BANAKAR, ADDL. SPP)

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CRL. A. No.100057/2018

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., SEEKING TO CALL FOR THE PAPERS ON THE FILE OF VI ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI IN S.C.NO.171/2012 FOR THE OFFENCES PUNISHABLE UNDER SECTION 143, 147, 302, 304(B), 498(A), 201 READ WITH 149 OF IPC AND SEC. 3 AND 4 OF D.P. ACT 1961 AND TO SET ASIDE THE JUDGEMENT OF CONVICTION AND ORDER OF SENTENCE DATED 29.01.2018 PASSED BY THE VI ADDL. DISTRICT AND SESSIONS JUDGE BELAGAVI.

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THIS APPEAL COMING ON FOR FINAL HEARING ON 30.11.2021 AND THE SAME HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF JUDGEMENT, THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The accused Nos.2, 3 and 5 are before this Court challenging the order of conviction and sentence passed by the VI Addl. District and Sessions Judge, Belagavi, (for brevity ‘the trial Court) both dated

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29.01.2018 passed in S.C.No.171/2012.

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The order of conviction reads as under:

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“Acting U/s. 235(2) of Cr.P.C., Accused Nos.2,3 and 5 are convicted for the offences punishable U/s.143, 147, 304-B, 498-A of IPC and U/s. 3 and 4 of D.P. Act, 1961 r/w. Sec. 149 of IPC.

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Acting U/s.235(2) of Cr.P.C. Accused No.2 is convicted for the offences punishable U/s.302, 201 r/w. Sec.34 of IPC.

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Accused Nos. 2,3 and 5 to be heard on the question of sentence.”

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3. The order of sentence reads as under:

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Accused Nos.2,3 and 5 are sentenced to undergo S.I. for a period of six months and to pay a fine of Rs.1000/-each for the offense punishable U/s.143 r/w. Sec.149 of IPC and in default to pay the above said fine amount, Accused Nos.2,3 and 5 shall undergo SI for a period of one month.

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Accused Nos.2,3 and 5 are sentenced to undergo SI for a period of one year and to pay fine of Rs.1000/-each for the offense punishable U/s.147 r/w. Sec. 149 of IPC and in default to pay the above said fine amount, Accused Nos.2,3 and 5 shall undergo SI for a period of one month.

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Accused No.2 is sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/ and in default to pay the above said fine amount shall undergo SI for a period of six months for the offence punishable U/s.302 r/w. Sec.34 of IPC.

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Accused No.2 is sentenced to undergo SI for three years and shall pay fine of Rs.5000/- for the offense punishable U/s.201 r/w. Sec.34 of IPC and in default to pay the above said fine amount Accused No.2 shall undergo SI for a period of six months.

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Accused Nos.2,3 and 5 are sentenced to undergo SI for seven years for the offence punishable U/s.304 B of IPC r/w. Sec.149 of IPC.

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Accused Nos.2,3 and 5 are sentenced to undergo SI for three years and to pay a fine of Rs.10,000/-each for the offences punishable U/s.498-A r/w. Sec.149 of IPC and in default to pay the above said fine amount Accused Nos.2,3 and 5 shall undergo SI for six months.

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Accused Nos.2,3 and 5 are sentenced to undergo SI for a period of five years and shall pay a fine of Rs. 15,000/- each for the offense punishable U/s.3 of D.P. Act, 1961 and in default to pay the above said fine amount Accused Nos.2,3 and 5 shall undergo SI for a period of six months.

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Accused Nos.2,3 and 5 are sentenced to undergo SI for a period of two years and shall pay fine of Rs.5000/-each for the offense punishable U/s.4 of D.P.Act, 1961 and in default to pay the above said fine amount, Accused Nos.2,3 and 5 shall undergo SI for a period of six months.

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All the above said sentences imposed on Accused Nos. 2,3 and 5 shall run concurrently.

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Accused No.2 is entitled for the benefit of set off as provided U/s.428 of Cr.P.C. for the period for which she has been in judicial custody in respect of this case.

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MO1 to 3 are ordered to be retained till the conclusion of the split-up case as against Accused No.4.

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Office is directed to furnish the true copy of this Judgment to the Accused Nos.2,3 and 5 free of costs forthwith.”

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The case of the prosecution is that the marriage of

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the deceased Yallamma @ Nirmala who is the daughter of the elder brother of the complainant

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was performed with accused No.1 on 03.06.2010

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by giving necessary dowry and in accordance with the customs and traditions.

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After marriage, the deceased Yallamma started living in the house of the accused and was leading her marital life. It is alleged that accused No.1 being the husband, accused No.2 being the mother-in-law, accused No.3 being father-in-law, accused No.4 being the brother-in-law and accused No.5 being sister-in-law of the deceased had started harassing the deceased Yallamma calling upon her to bring money from her maternal house from time to time.

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On one such occasion, the complainant in the month of December had made a payment of Rs.20,000/- and at that time had requested all the accused to stop the harassment and look after the deceased properly, categorically stating that she is

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a motherless child and her father was not taking care of her, despite which the accused continued to cause physical and mental harassment to the deceased Yallamma, calling upon her to bring additional amount as dowry. It is alleged that when the said amounts was not brought, the accused on 06.05.2011 between 10 a.m. to 11 a.m. assaulted the deceased Yallamma, murdered her by throttling her and thereafter with an intention to destroy the evidence have put the body in the bathroom of the house, poured kerosene on her and burnt the body.

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Hence, it was alleged that all the accused had committed offence punishable under Sections 143, 147, 302, 304-B, 498-A, 201 read with Section 149 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

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The investigation was completed and a charge sheet was laid for the aforesaid offences.

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The Senior Civil Judge and JMFC, Ramdurg, took cognizance for the aforesaid offences, accused Nos.1 and 2 have been arrested on 07.05.2011, accused No.5 had been arrested on 03.07.2011 and they had been remanded to judicial custody. Subsequently, accused Nos.3 and 5 have obtained regular bail. As accused No.4 was absconding, the case against him was split up and separate proceedings in C.C.No.146/2011 were initiated.

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The Senior Civil Judge and JMFC, Ramdurg, taking into account that the offences alleged are exclusively tried by the Court of Sessions, committed the case against accused Nos.1 to 3 to the District and Sessions Court, Belagavi and the

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case was made over to the VI Addl. District and Sessions Judge, Belagavi.

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The charge-sheet having been submitted, initially the charges were framed against the accused on 26.07.2013 against accused Nos.1 to 3 and 5 for offences punishable under Sections 498-A, 302, 304-B, 201 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The same was read over to the accused and explained to them in kannada language known to them. They pleaded not guilty to the altered charges and claimed to be tried. On an application being filed by the prosecution under Section 216 read with Section 228 (2) of the Cr.P.C., the charges were rectified/altered for the offences punishable under Sections 498-A, 302, 304-B, 201 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act which on 27.06.2016

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were also again read over and explained to

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accused Nos.3 to 5 in Kannada language known to them. T hey pleaded not guilty to the altered charges and claimed to be tried.

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On another application being filed by the

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prosecution under Sections 216 and 228 (2) of the Cr.P.C. altered charges were framed as per order dated 03.08.2017 including the offences

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punishable under Sections 143, 147 read with Section 149 IPC. The same was read over and explained to accused Nos.2, 3 and 5 in Kannada language known to them. On 26.09.2017, they pleaded not guilty to the altered charges and claimed to be tried. By that time accused No.1 had expired on 08.04.2017 and the case stood abated against accused No.1.

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The prosecution in order to establish the case

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against the remaining accused, in all examined 26 witnesses as PWs-1 to 26, got marked 46 documents at Exhibit 1 to 46(a) and 3 material objects as M.Os.1 to 3 and closed its side.

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The evidence against the accused was put across to the accused and their statements under Section 313 of Cr.P.C. was recorded. They denied all the evidence against them no evidence on behalf of the defence was led.

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Thereafter, the matter was posted for arguments and the aforesaid order of conviction and sentence was passed. It is aggrieved by the same that the appellants who are accused Nos.2, 3 and 5 are before this Court.

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Shri S.B.Deyannavar, learned counsel for the appellants submits that

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16.1. The complaint has been filed by the uncle of

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the deceased and not by the father and as such, there is a doubt which arises as to why the father has not filed the complaint.

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16.2. There has been no demand for the money/dowry as sought to be contented by the prosecution. The prosecution has not produced any evidence or established the said demand, the accused were not in the house at the time when the incident

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occurred.

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16.3. There is a contradiction in the complaint inasmuch as even according to the complainant, the amount demanded of Rs.20,000/- had already been paid and the question of further demand would not arise.

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16.4. It is accused No.1 who had called the complainant on 06.05.2011 and informed about the occurrence of the event at 11:30 a.m. If at all accused No.1 or other accused wanted to suppress the matter and/or were involved in the matter, they would not have called the complainant and informed about the incident.

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16.5. Though the father has been named as a witness he has not been examined.

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16.6. Accused No.3 was not residing in the house but was residing in Bagalkot, Accused No.5 being married has her matrimonial house in Bijapur, hence the proceedings against them ought to be dismissed.

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16.7. He submits that PW – 2 who is the witness to the inquest panchnama has half-heartedly

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supported the case of the prosecution. PWs –

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3 to 9 have not supported the case of the prosecution and were treated hostile and nothing much was elicited from them.

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16.8. All other witnesses being the official witnesses being the doctor, police etc., there was nothing on record to establish the complicity of the accused. It is on this basis he submits that the order of conviction is required to be set aside.

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Shri V.M.Banakar, learned Addl. SPP appearing for the State/respondent supports the judgment of conviction and sentence imposed. He submits that:

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17.1. PW – 1 is the brother of the father of the deceased, the mother having expired and the father living a wayward life. It is PW – 1 who was taking care of the well being of the

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deceased and her brother and they were residing in the house of PW – 1. It is PW – 1 who had got the deceased married and as such, the complaint lodged by PW -1 is proper and correct. No-fault can be found therewith. It is not required that the complaint ought to have been filed by the father of the deceased.

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17.2. By relying upon the evidence of the other witnesses, he submits that the evidence on record is sufficient enough to support the order of conviction, the date of marriage being 03.06.2010 and the date of the incident being 06.05.2011, he submits that the provisions of Section 113-B of the Indian Evidence Act would be applicable giving rise to a presumption.

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17.3. The incident having occurred in the house of

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the accused they would have special knowledge of the circumstances, it was required of them to have explained the circumstances in terms of Section 106 of the Indian Evidence Act.

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17.4. Though the incident is stated to have occurred at 10.30 a.m., the complaint was only lodged by 7.15 p.m. by PW – 1, no complaint was lodged by the accused who was stated to be residing in the same house, thus in terms of Section 8 illustration (i) of the Indian Evidence Act, the conduct of the accused indicates their complicity.

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17.5. He relies upon the decision of the Apex Court in the case of TRIMUKH MAROTI KIRKAN

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VS. STATE OF MAHARASHTRA reported in

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2006 (10) SSC 681 , more particularly, paragraphs 12, 13, 14 and 15 thereof which are reproduced hereunder for easy reference:

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“12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

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13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride

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being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

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14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution (1944 AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

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(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."

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15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”

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17.6. He submits that both accused Nos.3 and 5

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were visiting the house where the deceased expired and they have been convicted for the offences punishable under Section 304-B IPC, the said conviction is sustainable and it is not

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that they never visited the house.

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17.7. It is not essential that on some material

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witness having turned hostile the proceedings have to be dismissed, PW1, 9, 10, 11, 12, 23

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and 24 have supported the case of the prosecution.

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17.8. The order of conviction as also sentence having been passed on the basis of evidence on record, the prosecution has proved its case, the appeal is liable to be dismissed.

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It is in the above background, that we have to consider whether the judgment of conviction and order of sentence passed by the trial Court is proper or not. For this purpose, we would be required to reappreciate the evidence on record in relation to the above aspect.

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PW – 1, the uncle of the deceased has deposed as the death of the mother of the deceased, of the father of the deceased living a wayward life, about the marriage of the deceased with accused No.1 and at that time of marriage having given the

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accused No.1 one thola of gold, Rs.15,000/- in cash, apart from other items for the benefit of accused No.1. The deceased having gone to the house of the 1^st accused to lead her matrimonial life, of the accused having taken care of the deceased properly for period of 1 month, of accused Nos.1, 2, 3 and 4 residing in the same house, after a period of one month accused No.1 started pressurizing the deceased to go to her maternal home and to get Rs.20,000/- cash from her maternal home which was informed by the deceased to PW -1 over phone as also whenever she visited her maternal home. He has also stated

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of how the deceased was apprehensive of going back to her matrimonial home and of her crying at the time of going back stating that the accused would harass her on her return. He has also spoken of himself and PW - 9 having visited the

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matrimonial house of the deceased, of having spoken with the accused and requesting them to take care of the deceased by referring to her as his daughter, despite which the demands for monies kept persisting. On CW – 7, brother of the deceased being involved in an accident and suffering injuries, the deceased had come to visit her brother. Within 4 days thereafter, accused Nos. 1 and 2 over phone requested PW - 1 to send her back to the matrimonial home. Even at this time, the deceased was apprehensive of going back to her matrimonial home again stating that the accused would harass her. Hence, PW - 1 along with his wife had accompanied the deceased and left her at the matrimonial home and at that time, had requested the accused to take care of her properly and not to request for money every time and he would give them money as and when

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available. He has deposed that on 06.05.2011 [wrongly mentioned as 05.06.2011 in the deposition] at 11:30 a.m., the 1^st accused had called him and informed him that the deceased had died in a fire accident. Hence, PW - 1 along with his family members including his wife went to the house of the deceased when they did not find any of the accused in the house, they saw the body of the deceased in the bathroom, they realised that kerosene had been poured on her body and she was set on fire. Thereafter, he had lodged a complaint. He has deposed about how the police came to the spot, conducted the spot panchnama, how the inquest was held etc.,

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During the course of cross-examination, he has denied the suggestion that the father of the deceased CW - 6 was intentionally avoided so that the truth does not come out. He has stated that

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when he had visited the spot neither the police nor any other person were there. Though he stated that he enquired from the neighbours he was unable to state as to from whom he made the enquiry. He has denied that the deceased has set herself on fire due to depression. He has further denied that the complaint was filed to grab money from the accused.

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PW - 2 who is a witness to the panchnama of the body has supported the case of the prosecution.

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PW - 3 has denied any knowledge of the incident and he was treated as hostile witness. When cross examined by the Public Prosecutor nothing much to support the case of the prosecution was elicited.

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PW - 4 has deposed that he knows all the accused and the deceased and that all of them were residing together but however has denied any

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knowledge of the case. He was treated as a hostile witness. When cross-examined by the Public Prosecutor nothing much to support the case of the prosecution was elicited during the course of crossexamination.

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PW - 5 has also deposed that he knew accused except accused No. 4, deceased was the wife of the 1^st accused and that all the accused were residing together. Thereafter, he has denied any knowledge of the case and he was treated as a hostile witness. When cross-examined by the Public Prosecutor nothing much to support the case of the prosecution was elicited during the course of cross examination.

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PW - 6 has stated that he knows all the accused. He has confirmed that the deceased was the wife of 1^st accused and the deceased and accused were

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residing together. He has also denied having knowledge of the case and he was treated as a hostile witness. When cross-examined by the Public Prosecutor nothing much to support the case of the prosecution was elicited during the course of cross-examination.

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PWs - 7 and 8 have stated that they know the accused and that the deceased was married to accused No.1 and all the accused were residing in the same house. However, they have stated that they know nothing about the case. Hence, they were treated as hostile witnesses. When crossexamined by the Public Prosecutor nothing much to support the case of the prosecution was elicited during the course of cross-examination.

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PW - 9 has deposed that he knows the accused, that the deceased was the wife of the 1^st accused

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and they were all residing together, he has stated that the mother of the deceased had expired 15 years ago, the father of the deceased was a vagabond, that 11 months prior to the death of the deceased, her marriage was performed with accused No.1 in the house of accused and at the time of marriage, utensils, cash, cot etc., were demanded by the accused and given by the family of the deceased. After the marriage, the deceased was living in her matrimonial home, initially, for a period of four months, she was looked after well, thereafter the accused started demanding that the deceased get money from her maternal home. He has deposed that one month prior to her death, she had come to the house of PW -1 and informed that accused No.1 had demanded Rs.20,000/- to start a business and that PW -1 made payment of Rs.20,000/- to the accused through the deceased,

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at that time, PW -1 went to the house of the deceased and requested the accused to take care of the deceased properly, not to harass her and/or demand for money. Within two days of the same, the incident occurred and the 1^st accused had informed PW -1 of the deceased had committed suicide. He has stated that when they went to the house at 1 p.m., no one was there, they saw the dead body of Yallamma and there was a kerosene can and they saw the injury on the deceased. He has denied the suggestion that because of the attitude of the father of the deceased, the deceased has committed suicide. He has also denied the suggestion that since the mother of the deceased had committed suicide from that time the deceased was mentally disturbed and therefore, she committed suicide. He has denied the suggestion that no item was given as dowry to the

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accused. He has stated that when he reached the

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house of the accused, the said house was closed from the outside, he denied that when he reached there, accused Nos. 1 and 2 were there, he denied the suggestion that there was a demand made by C.W.6 for payment of Rs.50,000/- as settlement, failing which a complaint would be lodged. He denied that the deceased had committed suicide.

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PW - 10 has identified and confirmed that she knows the accused. She has stated that PW -1 is her husband, she has more or less reiterated what PW -1 has stated. She denied that upon the death of the mother of the deceased, the deceased was mentally upset. She denied that no gold or jewelry was given as dowry to the accused. She has stated that accused No.2 - Shakuntala was running a Pan

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Shop in front of the house of the accused and there was a coin telephone facility in the said shop.

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She denied that the deceased was not ill-treated by the accused. She denied that the deceased has committed suicide.

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PW - 11 has identified the accused and has stated that he knows them. He has reiterated more or less what has been stated by PWs - 1 and 10. He has stated that there were talks between two families as regards the items to be given as dowry. He has denied the suggestion that no item was given. More or less similar suggestion that had been put across to PWs - 1 and 10 were put to him, which was denied by him.

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PW - 12 has identified the accused and has stated that he knows all the accused. He has stated that he had participated in the talks of the marriage between deceased and accused No.1 and that he has attended the marriage. He has further

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stated that at the time of marriage, dowry of 15 grams of gold, cash of Rs.15,000/-, cot, utensils were given to the accused. He has further stated that when the deceased came to the village, she had told him of the accused having ill treated her.

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He has stated that on the date of the incident when they visited the house, no accused were present at the house, the front door of the house was closed, he opened the door, found the burnt dead body of the deceased lying in the bathroom.

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PW - 13 is the Assistant Executive Engineer of PWD who has prepared the sketch of the spot.

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PW - 14 is the ASI who had arrested accused Nos.1 and 2 from Malagatti cross on 07.05.2011 which is 4 kms from the place of the incident.

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PW - 15 is the SLAO, BUDA, who conducted the inquest mahazar of the deceased as per Ex.P.4.

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PW – 16, a Medical Officer who conducted the Post

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Mortem on the deceased. He has stated that the body was almost completely burnt, rigor mortis was present all over the body, tongue was bitten by jaws and partially outside and part of the tongue was burnt. He has spoken of hyoid fracture, he has deposed as regards the dead body having more than 95% burn injuries, the burn injuries were post-mortem in nature and accordingly, he has given a final opinion as to the cause of the death, mechanical asphyxia, secondly throttling and that the larynx and trachea had no carbon particles on them. During the course of cross-examination, he has admitted that the Government Hospital at Ramdurg is well equipped, all the records of the day-to-day transactions are maintained. He has stated during the course of cross-examination, that Rigor Mortis appears after

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a lapse of 24 to 30 hours. Though there were several other questions and suggestions put across, the witness has stood the test of crossexamination.

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PW - 16 who was recalled after the alteration of the charges and cross-examined, denied that the postmortem report is without any basis. He has also denied that the deceased died due to suicidal burn injuries. Nothing much was elicited during the course of his cross-examination by the accused.

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PW – 17, is the Head Constable of Ramdurg police

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station. He is the Head Constable who had searched for the absconding accused Nos.3, 4 and 5, but they were not found.

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PW - 18 is the women Head Constable of Kalkod

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police station who had received the body of the deceased after the inquest was carried out and she

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shifted the body to the Government Hospital, Ramdurg, for post-mortem. After the post-mortem was conducted, she received the body which was delivered to PW -1. Nothing much was elicited during the course of cross-examination to controvert the case of the prosecution.

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PW -19 is the Scientific Officer at FSL who had conducted the examination on partly burnt and melted saree and the 5 litres capacity plastic can, has opined that the burnt saree had kerosene residue. Nothing much was elicited during the course of cross-examination and has supported the case of the prosecution.

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PW - 20 is the Constable who carried the FIR to the Magistrate.

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PW - 21 is a Constable who carried the material objects to FSL, Bengaluru.

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PW - 22 is the Constable who was tasked with finding absconding accused Nos.3, 4 and 5 but was unable to find them.

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PW - 23 has deposed that he knows PW-1 and the family members. He has deposed as regards the marriage of the deceased and accused No.1 having performed in the house of the accused where he acted as an elder. At the time of marriage, a sum of Rs.15,000/- and 1 ½ tholas of gold and household articles were given as dowry by PW -1 to accused No.1. 3 - 4 months after the marriage, the deceased had informed him that accused were demanding more dowry. He has stated about PW - 1 and 7 having gone to the house of the accused and had made payment of Rs.20,000/- as per the dowry demanded; him having accompanied PW -1

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and others to advise the accused to take care of

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the deceased properly, he had seen the dead body

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of the deceased Nirmala in the bathroom with burn injuries and her tongue protruding outside the mouth, that when he visited the house of the accused after the death of the deceased, the doors were open and people were going inside to see the dead body. He has stated that the accused were not present.

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PW - 24 accompanied PW - 1 to the house of the accused upon coming to know of the death of the accused. He has stated that he has seen the burnt body of the deceased lying in the bathroom and her tongue was protruding from her mouth.

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PW - 25 Head Constable of Ramadurga Police Station received the complaint lodged by PW -1 and registered the same in Cr.No.93/2011 and submitted the FIR. He has stated about having gone to the house of the accused after the

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complaint, when he reached the spot, there was an electric bulb burning apart from that nothing was elicited.

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PW - 26 is the Deputy Superintendent of Police, Bailahongal, during the relevant time, had taken up further investigation. He had sent the requisition to the Tahsildar etc., Nothing much was elicited from him and all the suggestions were denied.

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Having gone through the evidence of all the witnesses and the exhibits which have been marked and extracted hereinabove, it is clear that the deceased was married to accused No.1, accused No.2 was the mother of accused No. 1, accused No.3 was the father, accused No.4 was the brother and accused No.5 was the sister of the accused No.1. Accused No.1 is stated to have

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expired during the pendency of the proceedings

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and as such the proceedings have abated against him.

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The marriage having occurred on 03.06.2010 and

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the death of the deceased having occurred on 06.05.2011 is not in dispute. Section 113-B of the Indian Evidence Act would get attracted to the present fact situation. Section 113-B reads as under:

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“ 113-B. Presumption as to dowry death. – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

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Explanation – For the purposes of this Section, “dowry death” shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).]”

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It is clear from the evidence of PW -1 that there

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was a demand for dowry and the said demand had been paid as also that the deceased had been harassed by the accused by further demanding for monies and gold.

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The contention of the accused during the course of cross-examination as also in the present appeal is that there is no evidence as such produced to establish a demand for dowry. We are of the considered opinion that such a demand is never made in a written format. The demand for dowry being oral, various witnesses like PW1, PW9, PW10, PW11, PW12, PW23 and PW24 having deposed thereto, the said demand as also payment thereof has been established, it is further established that further demands had been made for money which was paid and just before the

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death of the deceased a further demand had been made which was not paid in full.

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The other contention is as regards the deceased having committed suicide by setting herself on fire, the medical evidence in this regard would establish that the tongue of the deceased was protruding and was burnt. The postmortem report and the doctor conducting the post-mortem has

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categorically stated that the burn injuries are postmortem i.e., after the death of the person. He has stated that the trachea and larynx are clear.

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In the event of a person getting burnt when alive, the tongue of the person cannot be outside for such a period of time for it to get burnt. If a person gets burnt when alive, he or she would be breathing, taking in carbon particles and the trachea and larynx would never be clear. The

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doctor having deposed that burn injuries are postmortem, that would mean that the deceased was dead at the time when she was burnt, the death having been caused due to asphyxia and there being marks on her throat, the doctor has stated that the death has occurred due to asphyxia, it is clear that the deceased had been throttled causing her death at which time her tongue protruded from her jaw. It is only thereafter has been burnt, thus burning the tongue.

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In such circumstances it cannot be that the deceased has committed suicide, the death has occurred before the burning hence, it is clear that the body was burnt so as to destroy the evidence.

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These events having occurred within the confines of the house of the accused at the time when PW -

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1 visited the house none of the accused were present and the door was closed from outside.

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From the above, it is clear that the deceased could not have set herself on fire since by that time she was already dead and her body was set on fire only after her death.

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In the circumstances, it is but required for the accused to have explained the circumstances in view of Section 106 of the Indian Evidence Act. No such explanation had been given except in the cross-examination to suggest that the deceased had committed suicide on account of her father not caring for her and being disturbed by the death of her mother nearly 15 years ago.

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There being a presumption as regards the guilt of

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the accused and/or the involvement of the accused and the same having not been rebutted, the facts

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and the evidence on record indicating that the deceased had died due to throttling and her body burnt later, the accused being absent from the spot, absconding, the circumstances and evidence on record indicate that the accused are connected with and/or have committed the murder of the deceased.

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PW - 26 has also deposed that during the course of the investigation, he came to know of a financial crisis in the house of the accused and it is for that reason that demand of Rs.20,000/- was made. Illtreatment of the deceased at the hands of the accused has been established by the evidence of PWs -1, 9 to 12, 16, 19, 23 and 24.

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The decision of the Apex Court in TRIMUKH MAROTI KIRKAN’s (Supra) case as referred to by the learned Additional SPP is squarely applicable

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to the facts of this case, the relevant portion having been extracted herein above.

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Though Shri Deyannavar, learned counsel for the appellants has contended that accused No.3 was working in Bagalkot and accused No.5 was married and residing in Bijapur. The same would have been relevant only if they had been convicted for offences punishable under Section 302 of IPC. It is only accused No.2 who has been convicted for the offences punishable under Section 302, 201 read with section 34 IPC.

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Accused Nos.2, 3 and 5 have been convicted for offences punishable under Sections 143, 147, 304B, 498-A of IPC and Section 304 of the Dowry Prohibition Act further read with Section 149 of IPC. For these provisions to be attracted, it is not required that accused No.3 and 5 to be present in

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person at the house. The evidence on record categorically and unimpeachably establishes that accused Nos.3 and 5 were from time to time visiting the house at Ramdurg, accused Nos. 3 and 5 had also demanded dowry/money and they had been harassing the deceased.

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The chain of events having been established as regards the marriage, death, death being homicidal in nature, there is a demand for dowry, the accused had gone missing from the house, not having rebutted the presumption under Section 113B of the Indian Evidence Act, not having deposed as regards the special knowledge in terms of Section 106 of Indian Evidence Act, we are of the considered opinion that the trial Court has properly appreciated the facts and there would be

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no requirement for this Court to intercede in the matter.

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