Abdul Kaleem Vs the State of Karnataka

THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:24/25.4.14 PASSED BY THE P.O., FTC-VI, BANGALORE IN S.C.NO.445/12 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 498(A), 304(B) R/W 34 OF IPC AND SEC. 3 AND 4 OF D.P. ACT; AND THE APPELLANTS/ACCUSED NOS.1 AND 3 ARE SENTENCED TO UNDERGO R.I. FOR A PERIOD OF 2 YEARS AND TO PAY FINE OF RS.5000/EACH, IN DEFAULT TO PAY THE FINE AMOUNT THE ACCUSED NO.1 AND 3 SHALL FURTHER UNDERGO S.I. FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE P/U/S 498(A) OF IPC AND ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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This appeal is by accused Nos.1 and 3 being aggrieved by

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the judgment of conviction and order of sentence dated 24.04.2014 passed in S.C.No.445/2012, on the file of the City Fast Track (Sessions) Judge, Bangalore City (hereinafter referred to as 'the Trial Court'), by which the

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accused/appellants herein have been sentenced as under:

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'' The Accused No.1 and 3 are sentenced to undergo rigorous imprisonment for a period of 2 years and to pay fine of Rs.5000/- each. In default to pay the fine amount the accused No.1 and 3 shall further undergo simple imprisonment for a period of 6 months for the offence punishable u/sec. 498(A) of Indian Penal Code.

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Further, the Accused No.1 and 3 are sentenced to undergo rigorous imprisonment for a period of 7 years for the offence punishable u/sec. 304(B) of Indian Penal Code.

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Further, the accused No.1 and 3 are sentenced to undergo rigorous imprisonment for a period of 6 months and to pay fine of Rs.5000/-each for the offence punishable u/sec. 3 of the Dowry Prohibition Act, 1961. In default to pay the fine amount they shall undergo simple imprisonment for 4 months.

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Further, the Accused No.1 and 3 sentenced to undergo rigorous imprisonment for a period of 6 months and to pay fine of Rs.5000/-each for the offence punishable u/sec. 4 of the Dowry Prohibition Act, 1961. In default to pay the they shall undergo simple fine amount imprisonment for 4 months.

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The substantive sentences imposed on the accused No.1 and 3 shall run concurrently.

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Supply the free copies of judgment to the accused No.1 and 3 forthwith.

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It is ordered to retain MO No.1 to 9 properties till the disposal of split up case filed as against accused No.4.''

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2. Case of the prosecution is;

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(a) that marriage of accused No.1-appellant herein was solemnized with one Smt. Reshma Banu on 21.08.2005 at Imamia Manzil, Bengaluru. Pursuant to demand made by parents of accused No.1, who are arraigned as accused Nos.2 and 3, parents of said Smt. Reshma had paid a sum of Rs.75,000/and 200 grams of gold jewelleries and other household utensils to the accused persons.

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(b) That the said Smt. Reshma Banu was subjected to physical and mental harassment and ill-treatment at the hands of the accused persons, forcing her to bring further dowry amount. That Smt. Reshma Banu had taken Rs.20,000/- from her father and had given the same to the accused persons towards dowry amount. Despite the same, ill-treatment did not stop. Unbearable of the harassment, said Smt. Reshma Banu committed suicide in the house of the accused persons by hanging herself from the ceiling fan with the help of veil at 05.30 p.m. on 29.05.2011. Thus, the case in crime No.185/2011, came to be filed for the offences punishable under Sections 304(B) R/w 34 of IPC.

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(c) That after the investigation charge sheet was filed, accused persons pleaded not guilty. Accordingly, matter was set down for trial.

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3. Statement of accused Nos.1 and 3-appellants

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herein was recorded under Section 313 of Cr.P.C. The accused Nos.1 and 3-appellants denied all i ncriminating circumstances made against them.

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4. P rosecution has examined 20 witnesses as PW.1 to PW.20. 17 documents have been marked as Ex.P1 to Ex.P17. 9 material objects have been examined and marked as M.O1 to M.O9. Accused persons have examined one Amjad Khanphotographer as DW1 and have exhibited 9 photographs and 1 CD, through him, which are marked as Ex.D1 to Ex.D10.

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The trial Court framed following points for its consideration:

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'' i. Whether the prosecution proves to the hilt that at the time of marriage between the deceased Reshma Bhanu and A1 (on 21.8.2005) in furtherance of their common intention, the A1 and 3 along with other accused persons demanded the dowry and received a sum of Rs.75,000/-, 200 grams of gold jewels and household utensils from the parents of the bride (Reshma Bhanu) towards dowry and thereby the accused No.1 and 3 have committed an offence punishable u/s 3 of D.P.Act r/w sec. 34 of IPC?

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ii. Whether the prosecution proves to the hilt that after the marriage, in furtherance of their common intention, the accused

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No. 1 and 3 along with other accused persons again demanded further dowry and have given illtreatment to the said Reshma Bhanu both physically and mentally and the said Reshma Bhanu again took a sum of Rs.20,000/- from her father and given the said amount to the accused persons towards dowry and thereby the accused have committed an offence punishable u/s 4 of D.P.Act.r/w sec. 34 of IPC?

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iii. Whether the prosecution proves to the hilt that in furtherance of their common intention, the A1 and 3 along with other accused persons demanded the deceased Reshma Bhanu to bring further dowry amount from her parents and they have given ill-treatment to her both physically and mentally in that regard and thereby the accused no.1 and 3 have committed an offence punishable u/s 498 (A) r/w sec. 34 of IPC?

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iv. Whether the prosecution proves to the hilt that in furtherance of their common intention, the A1 and 3 along with other accused persons demanded the deceased Reshma Bhanu to bring further dowry amount from her parents and they have given ill-treatment to her both physically and mentally and in that regard without tolerating their ill-treatment she committed suicide by hanging herself in the house of the accused to a ceiling fan with the help of veil cloth tied to her neck and thereby the accused no.1 and 3 have committed an offence punishable u/s 304(B) r/w sec. 34 of IPC?

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v. What Order?''

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6. On appreciation of evidence, the trial Court answered

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point Nos.1 to 4 in the affirmative and consequently passed the impugned judgment and order. Being aggrieved, the present appeal is filed.

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7. Learned counsel for the accused-appellants herein taking this Court through the records submits;

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(a) that even in the complaint filed by father of the victim- Smt. Reshma Banu, who is examined as

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PW1, there is no prima facie material indicating accused persons having inflicted any cruelty on the deceased.

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(b) That evidence of PW1-father and PW2 mother of the victim respectively indicate that alleged money paid by them was towards a customary practice of paying the amount under the name ''joda'', which was the practice prevalent in their community and the same cannot be termed as a dowry. The subsequent amount paid was according to the witnesses was to repay the loan amount of parentsin-law of the deceased, payment under the said account cannot be termed as a dowry payment.

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(c) Referring to the deposition of PW5 and PW7 who are the maternal aunts of the victim as well as the evidence of PW8 who is the maternal uncle of the victim, he submits that as per the version of PW5 and PW7 they had mediated the dispute between the accused-husband and the deceased, had even advised them to lead a happy married life. That the said witnesses have not spoken anything about there being any demand for dowry. That the family discord, if any between the accused No.1 and deceased cannot be termed as one for demand for dowry. The discord could be for various reasons and the same cannot be attributed only towards the demand for dowry. That PW8-maternal uncle, has

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repeated the version of PW5 and PW7, besides speaking about the issuance of the marriage certificate.

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(d) PW6, friend of the mother of the victim- Smt. Reshma Banu has partly turned hostile. Similarly, PW10, the neighbour has turned hostile and has not supported the case of the prosecution.

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(e) That in the absence of there being proof regarding accused persons demanding dowry, inflicting cruelty and constant harassment, leaving no option to the deceased but to end her life, case under Section 306 IPC cannot be said to have been proved against the accused persons. So also under Section 304B of IPC.

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(f) That the reasoning arrived at by the trial Court is that the payment of Rs.75,000/- and the gold ornaments amounted to dowry cannot be sustained. As even admitted by PW5 and PW7, the said amount was paid voluntarily by the parents of the victimSmt. Reshma Banu.

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(g) That even according to case of prosecution, two days before the incident, there was a wedding of the brother-in-law of the accused No.1, in which deceased had participated happily, which is evident from the photographs produced by the accused persons as per Ex.D1 to Ex.D10. That the incident

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has taken place thereafter. Therefore, the requirement of proof of harassment soon before the dowry death as contemplated under Section 113-B of the Indian Evidence Act, has not been discharged by the prosecution.

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(h) Thus, he submits that trial Court has not appreciated the facts and the law applicable to the facts of the case in hand. Hence, seeks for allowing of the appeal.

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(i) In support of his submissions, he relies upon the following judgments of the Hon'ble Apex Court :

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A. Charan Singh @ Charanjit Singh Vs. State of Uttarakhand in Crl.Appeal No.447/2012 decided on 20.04.2023.

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B. Karan Singh Vs. State of Haryana in Crl.Appeal No.1076/2014 decided on 31.01.2025.

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8. Learned HCGP, on the other hand, justifying the

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impugned judgment and order and opposing the submissions made by the learned counsel for the appellants submits that the very fact of payment of Rs.75,000/- and gold ornaments, has been admitted by the accused persons, commission of offence under Section 3 of the Dowry Prohibition Act, takes effect. Therefore, the inference as contemplated under Section

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113-B of the Evidence Act has to be invariably drawn, more in

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view of the circumstances of victim committing suicide. He submits that the parents of the victim, maternal aunts of the victim have consistently deposed about the harassment meted out by the accused persons, fulfilling the requirement of Section 113-B of the Evidence Act. No other evidence could have been brought on record, except the best possible evidence, which was made available. Therefore, the trial Court has come to just conclusion, warranting no interference at the hands of this Court.

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9. Heard and perused the records

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10. Section 498A and 304B of IPC reads as under:

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'' 498A. Husband or relative of husband of a woman subjecting her to cruelty.— Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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Explanation.— For the purpose of this section, “cruelty” means—

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(a)any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

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(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on

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account of failure by her or any person related to her to meet such demand. ''

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'' 304B. Dowry death.— (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

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Explanation.— For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

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(2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. ''

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11. Section 3 and 4 of Dowry Prohibition Act, 1961 read

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as under:

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'' 3. Penalty for giving or taking dowry.—

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(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:

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Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

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(2)Nothing in sub-section (1) shall apply to, or in relation to,—

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(a)presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):

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Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;

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(b)presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):

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Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

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Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.''

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'' 4. Penalty for demanding dowry.—

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If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

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Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.''

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12. The line of precedent adverting to the ingredients of

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Section 304B of IPC are consistent, in that, the prosecution is required to prove the cruelty or harassment meted out to the victim or any relative shall be soon before her death and any interval between the cruelty and the death and the intervening circumstances has to be appreciated taking into consideration the overall facts and circumstances of the case.

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13. Perusal of contents of the complaint as per Ex.P1, indicate that at the time of the marriage accused No.1 was allegedly given Rs.75,000/- by way of cash and approximate

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200 grams of gold and all other household items. That after few months of the marriage, accused persons allegedly started to demand for cash again and again, which was catered to by the father of the victim. A week before the wedding of the brotherin-law of the victim, mother-in-law-accused No.3 had allegedly harassed her for cash of Rs.50,000/-. However, parents of the victim allegedly managed to give a sum of Rs.20,000/- by way of cash. Except these allegations, nothing is forthcoming in the complaint.

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14. Father of the victim has been examined as PW1, in his deposition, apart from reiterating the contents of the complaint, has stated that 15 days prior to her death, victim had asked her mother i.e., PW2 for a sum of Rs.20,000/- citing financial constraint at her in-laws' house. He has further spoken about father-in-law of victim slapping her and he pacifying her and consoling her to treat him as her father. He has also spoken about brother of the accused No.1, instigating the accused No.1 to divorce the victim. Thus, in his chiefexamination he has given these four counts to be the reason for her death.

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15. PW2-mother of the victim has reiterated the deposition of PW1.

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16. PW5-Maternal aunt of the victim, has deposed that at the time of marriage, victim was given a sum of Rs.75,000/- in cash, 200 grams of gold, washing machine and other household utensils. She has further deposed that accused personsappellants herein were quarreling with the victim and family members of the victim had gone to their house and advised them, result of which they were living happily for sometime. It is only thereafter, she received a call from her sister about death of the victim.

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17. In the cross examination, PW5 has deposed that she is married since 18 to 19 years and even during her marriage her husband was paid Rs.10,000/- towards 'Joda' expenses. That her husband was also given a gold ring, watch, gold jewels and household utensils. She has further deposed that accused No.1 was given Rs.75,000/- out of love, affection and happiness. She has spoken about accused No.1 and victim living happy married life initially and the problems faced subsequently.

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18. PW7-Jabeen Taj, is another maternal aunt of the victim, she has deposed that the victim was with her like a friend. There were irreconcilable differences between the victim and her husband and her in-laws. She has spoken about victim complaining her about her husband being instigated by his parents and was not providing her requirements. That she had also advised accused No.1 and his parents not to quarrel and to lead a happy life and she learnt about dowry demand through the parents of the victim.

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19. The evidence of PW5 and PW7 indicate that the initial sum of Rs.75,000/- and certain utensils were given voluntarily by the parents of the victim. Nowhere, these two witnesses spoke about they having any personal knowledge of victim being harassed and ill-treated by the in-laws and even regarding dowry. Indeed they speak about discord in the family and they advising the accused No.1 and his parents, i.e., accused Nos.2 and 3.

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20. PW7, has spoken about she being like a friend to the victim and victim confiding everything with her. Nowhere, PW7 has spoken about victim confiding with her about the

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harassment for payment of dowry by the accused persons. PW7 has also spoken about she advising accused No.1, his parents and the victim not to quarrel and to lead their lives happily.

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21. Both, PW5 and PW7 have spoken about they learning about the dowry demand resulting in death of the accused from the parents of the victim.

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22. It is this context which assumes importance in the version of PW1 and PW2, who are the parents of the victim with the version of PW5 and PW7 who are the maternal aunts of the victim. There is a yawning difference between the version of PWs.1 and 2 and PWs.5 and 7.

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23. It is also on record, two days prior to the death of the victim there was a marriage in the house of the accused persons i.e., marriage of the brother of the accused No.1.

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24. Learned counsel for the accused-appellants, referring to the photographs as per Ex.D1 to Ex.D9, submits that the presence of the victim as seen in the photograph indicates she having participated in the wedding ceremony wholeheartedly. He submits that DW1-Photographer has spoken about he taking

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those photographs in the wedding event. This is in justification

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of his submission that the presumption to be drawn as contemplated under Section 304B and 498A IPC, 113-B of the Evidence Act, requiring proof of harassment soon before the dowry death. Though one cannot make out from the photographs alone that the victim was happy, but the fact remains, PW5 and PW7 have not spoken anything about victim confiding with them about having been subjected to physical and mental cruelty for the purpose of fulfilling the demands of the accused for dowry. It is in this context, documents at Ex.D1 to D10 may throw some light.

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25. The Hon’ble Apex Court in the case of Charan Singh

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Vs. State of Uttarakhand (Supra) at paragraph No.11 and 13, has held under:

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'' 11. The interpretation of Sections 304B and 498A IPC came up for consideration in Baijnath Vs. State of Madhya Pradesh reported in (2017) 1 SCC 101 . The opinion was summed up in paras 25 to 27 thereof, which are extracted below:-

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“25. Whereas in the offence of dowry death defined by Section 304-B of the Code, the ingredients thereof are:

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(i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances, and

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(ii) is within seven years of her marriage, and

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(iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry.

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The offence under Section 498-A of the Code is attracted qua the husband or his relative if she is subjected to cruelty. The Explanation to this Section exposits “cruelty” as:

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i) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical), or

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(ii) harassment of the woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

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26. Patently thus, cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is the common constituent of both the offences.

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27. The expression “dowry” is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression “cruelty”, as explained, contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto. Be that as it may, cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry, to reiterate, is the gravamen of the two offences. ''

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13. A conjoint reading of Section 304B IPC and Section 113B of the Indian Evidence Act with reference to the presumption raised was discussed in para 32 of the aforesaid judgment, which is extracted below:-

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“32. This Court while often dwelling on the scope and purport of Section 304-B of the Code and Section 113-B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304-B as in Shindo v. State of Punjab [Shindo v. State of Punjab, (2011) 11 SCC 517 : (2011) 3 SCC (Cri) 394] and echoed

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in Rajeev Kumar v. State of Haryana [Rajeev Kumar v. State of Haryana, (2013) 16 SCC 640 : (2014) 6 SCC (Cri) 346]. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304-B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113-B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao [K. Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC 217 : 2003 SCC (Cri) 271] to the effect that to attract the provision of Section 304-B of the Code, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”.

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26. Similarly, in the case of Karan Singh (Supra) at

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paragraph Nos.6 to 8 has held as under:

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''6. The following are the essential ingredients of Section 304-B:

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a) The death of a woman must have been caused by any burns or bodily injury, or must have occurred otherwise than under normal circumstances;

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b) The death must have been caused within seven years of her marriage;

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c) Soon before her death, she must have been subjected to cruelty or harassment by the husband or any relative of her husband; and

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d) Cruelty or harassment must be for, or in connection with, any demand for dowry.

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7. If the aforesaid four ingredients are established, the death can be called a dowry death, and the husband and/or husband's relative, as the case may be, shall be deemed to have caused the dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides that dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either party to a marriage or by any other person, to the other party to the marriage or to any other person. The

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dowry must be given or agreed to be given at or before or any time after the marriage in connection with the marriage of the said parties. The term valuable security used in Section 2 of the Dowry Prohibition Act, 1961 has the same meaning as in Section 30 of IPC.

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8. In this case, there is no dispute that the death of the appellant's wife occurred within seven years of the marriage. Section 113-B of the Evidence Act reads thus:

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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 had 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 304-B of Indian Penal Code (45 of 1860)."

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The presumption under Section 113-B will apply when it is established that soon before her death, the woman has been subjected by the accused to cruelty or harassment for, or in connection with, any demand for dowry. Therefore, even for attracting Section 113-B, the prosecution must establish that the deceased was subjected by the appellant to cruelty or harassment for or in connection with any demand of dowry soon before her death. Unless these facts are proved, the presumptions under Section 113-B of the Evidence Act cannot be invoked.''

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27. The evidence brought on record by the prosecution read in the light of the depositions of PW5 and PW7, there is considerable force in the submissions made by the learned counsel for the appellants that the same fall short of the requirement of the ingredients of Section 304B of IPC and not sufficient enough to draw the inference under Section 113-B of Evidence Act.

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28. Neither in the complaint nor in the deposition, there is no specific date and time of accused persons subjecting the victim to cruelty, demanding dowry. The amount of Rs.20,000/- allegedly paid by the father of the victim was purportedly towards repayment of a loan of the accused persons. This cannot be termed as a dowry.

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29. The trial Court has however linked this payment and held the same to be the demand for dowry resulting in harassment, justifying the imposition of punishment even for the offences punishable under Sections 498A and 304B of the IPC.

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30. Since this Court after appreciating the deposition of PW5 and PW7-maternal aunts of the victim found prosecution having failed to prove the harassment or ill-treatment shown before the dowry death, the judgment of conviction and order of sentence imposed for the offence punishable under Section 498A and 304B of IPC by the trial Court cannot be sustained.

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The trial Court has accepted the evidence of PW1father of the victim, PW2-mother of the victim, PW5 and PW7 maternal aunts, on the point of alleged payment of Rs.75,000/-

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and 200 grams of gold and other household items at the time of marriage.

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It is necessary to note that in the complaint at Ex.P1, PW1 has deposed that he has five children and he is carrying on his livelihood as a normal ice supply worker with a luggage auto. As rightly pointed out by learned counsel for the appellants, neither in the complaint nor in the deposition of the witnesses, it is forthcoming, as to when this amount of Rs.75,000/- and 200 grams of gold were given. If the aforesaid amount was given at the time of marriage which is 'nikkah', it must have been witnessed by some independent witnesses. If it was paid earlier, which is not the case in any event, the source of Rs.75,000/- and 200 grams of gold ought to have been disclosed.

¶202

PW.1 in his deposition has stated as under:

¶203

" 1. ಮೃತ �ೇ�ಾ��ಾನು ನನ� ಮಗಳ�, �ಾ��ಾಲಯದ��ರುವ 1�ೇ ಆ�ೋ! ಕ�ೕಂ$ೆ ನನ� ಮಗಳ� �ೇ�ಾ��ಾನುವನು� %ೊಟು' ಸು)ಾರು 6 ವಷ+ಗಳ ,ಂ-ೆ ಮದು.ೆ )ಾ/ %ೊ0'-ೆ1ವ2. ಮದು.ೆ %ಾಲದ�� ಒಡ.ೆಗಳ�, ಮ�ೆಯ 5ಾ)ಾನು 6ಾಗೂ ವರದ7ಣ 75,000/- ರೂಗಳನು� 1�ೇ ಆ�ೋ!$ೆ %ೊ0'-ೆ1ನು. ಸ9ಲ: ;ನ ನನ� ಮಗಳ�, ಅ=ಯ >ೆ�ಾ�?ದ1ರು. ನನ� ಮಗಳ� ತನ� ಅ@ೆA ಮ�ೆಯ�� ಕಷ'B-ೆ, ಹಣ %ೇಳ�@ಾA�ೆ ಎಂದು ನಮ� ಬ= 6ೇ= ಆ$ಾಗ ನF�ಂದ ಹಣ @ೆ$ೆದು%ೊಂಡು 6ೋಗುGAದ1ಳ�. ತಮ� ಮ�ೆಯ��

¶204

22 -

¶205

NC: 2026:KHC:23434 CRL.A No. 441 of 2014

¶206

HC-KAR

¶207

ಕಷ'B-ೆ ಎಂದು ನನ� ಅ=ಯ ಕ�ೕಮನ @ಾH ಹಣ %ೇಳ�GAದ1ರು ಎಂದು ನನ� ಮಗಳ� ನಮ�� ಬಂದು 6ೇಳ�GAದ1ಳ�. ನನ� ಮಗಳ� ಮೃತ6ೊಂದುವ ಹ;�ೈದು ;ನಗಳ Jದಲು ಅ-ೇ KೕG ನನ� ಮಗಳ� ನನ� 6ೆಂಡGಯ ಬ= ಕಷ' ಎಂದು 6ೇ= ನF�ಂದ ರೂ.20,000/- ಗಳನು� ಪMೆದು%ೊಂಡು ತನ� ಅ@ೆAಯ ಮ�ೆ$ೆ @ೆ$ೆದು%ೊಂಡು 6ೋ?ದ1ಳ�. ನಂತರ ನನ� ಮಗಳ� �ೇಣು6ಾN%ೊಂಡು ಸGA-ಾ1Oೆ ಎನು�ವ B>ಾರ ನಮ$ೆ $ೊ@ಾAHತು".

¶208

Thus, PW.1 in his deposition has alleged that he has given jewels, house hold items and Rs.75,000/- as dowry to the accused No.1 at the time of marriage. The deposition further indicate that victim was asking for financial help as there was difficulty in her in-law's house. That she had taken Rs.20,000/-, fifteen days prior to her death from PW.2-mother of the victim citing financial difficulty at her home. Thus, there is no allegation victim asking for the money pursuant to demand for dowry from the accused persons. Asking for financial help on the ground of difficulty cannot be termed as dowry demand.

¶209

Allegation of payment of this amount and receipt has been specifically denied by the accused persons in the crossexamination. Except examining parents and maternal aunts of the victim, no other independent witnesses have been examined regarding the payment of Rs.75,000/- and giving of 200 grams of gold.

¶210

23 -

¶211

NC: 2026:KHC:23434 CRL.A No. 441 of 2014

¶212

HC-KAR

¶213

Considering the financial condition even as disclosed

¶214

by PW1, it was required on the part of the prosecution to have brought on record the independent witness regarding the source of his income, that is, if he had borrowed the money or if he had paid on his own.

¶215

PW5 in her deposition has stated as under;

¶216

"£ÀªÀÄä PÀÄlÄA§zÀªÀgÉ®è ¸ÉÃj ¸ÀAvÉÆÃµÀ¢AzÀ 75,000 gÀÆUÀ¼À£ÀÄß MAzÀÄ vÀmÉÖAiÀÄ°è ElÄÖ 2£ÉÃ DgÉÆÃ¦AiÀÄ PÉÊUÉ PÉÆmÉÖªÀÅ."

¶217

A suggestion is made to the said witness, which reads

¶218

as under;

¶219

"£À£Àß ¨sÁªÀ CAzÀgÉ gÉÃµÁä ¨sÁ£ÀÄ vÀAzÉUÉ 75,000 £ÀUÀzÀÄ ºÁUÀÆ 200 UÁæA a£ÀßªÀ£ÀÄß PÉÆqÀÄªÀµÀÄÖ ¸ÁªÀÄxÀåð EgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è."

¶220

PW1, PW5 and PW7 have in unison deposed that they

¶221

had paid certain sum out of their own volition to the accused No.1 towards "Joda" (alleged customary practice).

¶222

In view of the aforesaid depositions of PW1, PW5 and

¶223

PW7 and in the absence of prosecution leading any cogent evidence regarding PW1, being capable of paying the cash of Rs.75,000/- and 200 grams of gold and also in the absence of specific time at which said amount was paid and in the absence

¶224