MANJULA CHELLUR, J. :— This case pertains to the death of an unfortunate soul by name Mahadevamma, daughter of complainant Iregowda who met with an untimely death within four years of her marriage. 1st and 2nd respondent-accused are the in-laws of victim Mahadevamma, 3rd respondent is the husband of deceased and respondents 4 and 5 are her brothers-in-law. The case of the prosecution is, at the time of negotiation of marriage talks for the marriage of deceased with 3rd respondent; there was a demand of dowry by way of cash and also gold. Ultimately, it was decided to give Rs. 20,000/- cash as dowry apart from 6 tolas of gold. As per the talks said amount came to be paid prior to the marriage itself and the gold ornaments were given in two installments, i.e. some at the time of marriage and some subsequent to marriage as well. Even at the time of nuptial ceremony, there was harassment from respondent No. 3 with the demand of gold chain, according to the prosecution. It is not in dispute, deceased Mahadevamma went to the house of her husband and lived with him for some time. Out of the said wedlock they had a male child as well. The kith and kin of the deceased Mahadevamma say that deceased was not treated properly and there was continuous and persistent demand for a sum of Rs. 20,000/- from the parents of the deceased for the purpose of construction of a house. 20 days or so prior to the death of the deceased on 13-4-1991 she visited her parents demanding Rs. 20,000/-.
2. According to the prosecution respondent No. 3 came to the house of parents of the deceased and took her back and at that time he refused to even take food in their house. Within a short while the parents who were living at Devihalli gets information of unnatural death of the deceased Mahadevamma in the matrimonial home and rushed to Mullahalli village, the matrimonial home of the deceased. Originally, a complaint came to be lodged for the offences punishable under Sections 3, 4 and 6(2) of the Dowry Prohibition Act and also for offences punishable under Section 498-A and 304-B, IPC. During the course of investigation, as it was a case of unnatural death of a married woman within seven years of marriage, Taluka Executive Magistrate PW- 15 Puttahalagaiah conducted UDR proceedings I under Section 176 of Cr.P.C. Inquest was I drawn as per Exhibit P. 7. On the next day, ' dead body was sent to the Government Hospital at Kanakapura through PW-6 N. Muniraju, for conducting autopsy. On 15-4-1991, PW-9 Dr. Mariswamy, Deputy Surgeon at Kanakapura Government Hospital conducts autopsy with the assistance of PW-5 Dr C.S. Padma, a lady doctor. The postmortem report is Exhibit P.8 and further opinion of the doctor as per the request of the investigating agency are at Exhibits P. 10 to P. 12. After handing over the belongings of the deceased to the Investigating Officer the same were seized under Mahazar. During the investigation, statements of kith and kin of the deceased came to be recorded and so also the statements of several other witnesses in support of the case of the prosecution. PW-12 was the PSI who initially registered Crime No. 33/91 and PW-13 completed the investigation before filing the charge sheet. The case was tried in the Court of Sessions as the charge-sheet came to be filed for offence punishable under Section 302 and alternatively Section 304-B as well.
Before the Sessions Court the prosecution examined 15 witnesses, got marked 15 documents and 9 material objects.
3. In support of the case of the prosecution, so far as demand and acceptance of dowry before, at the time of marriage and so also subsequently, they examined PW-1 father of the deceased, PW-3 uncle of the deceased, PW-7 brother of the deceased, PWs-2 and 10 independent witnesses, and PW-11 brother-in-law of the deceased. PW-8 and PW-14 were examined to establish the fact that father of the deceased raised money for conducting the marriage of his daughter by selling a portion of his land to PW-8 and PW-14. Among these witnesses, PW-2 though admits the presence of him at the time of marriage talks between the parties, but he denies the demand of dowry and further harassment with demand of dowry by the respondents herein. All other witnesses have supported the case of the prosecution so far demand, acceptance of dowry and further demand for dowry resulting in harassment to the deceased.
4. After completing the evidence of the prosecution, during the Sec. 313, Cr.P.C. statement of the accused they sought permission to lead defence evidence. Ultimately, they examined 3 witnesses DWs-1 to 3 from Mullahalli village itself. The respondent-accused as per the defence evidence brought on record tried to show the cause of death of the deceased-Mahadevamma as an accidental one. They contend deceased-Mahadevamma was suffering from epilepsy attacks now and then. On 13-4-1991 at about 8.30 a.m. or so when the elders of the village were holding talks for conducting village festival, they noticed deceased-Mahadevamma carrying two pots of water — one on the head and one on the waist, climbing the steps of her house and while she was climbing steps along with two pots of water she slipped and fell. As a result she sustained head injury when her head came into contact with the steps. She also fell unconscious and the villagers carried her into the house and laid her on the cot. Though they tried to give her water to make her recover from the unconscious state of mind, she succumbed to head injuries within 5 or 6 minutes. At that point of time, none of the respondents were available at home as they were working in their lands. Therefore, they sent information to them. After one hour respondents arrived at the spot. By 3 p.m. or 4 p.m., the parents and other relatives of the deceased arrived at the spot. The kith and kin of the deceased quarrelled with the respondents and in the said quarrel 3rd respondent-accused, husband of Mahadevamma, sustained injuries. They pointed out the presence of the PSIPW-12, M. Marisetty at the spot at that point of time.
5. The learned Trial Judge, after hearing the arguments right from the stage of discussing the cause of death of the deceased seems to have been in a dilemma regarding the cause of death and ultimately he holds after referring to several judgments that the evidence placed before the Court was clear enough to hold that the deceased-Mahadevamma died within 7 years of her marriage otherwise than under normal circumstances. He also rejected the defence theory by holding that there was no ring of truth in the defence put forth, that deceased died due to head injury sustained by her in accidental fall while climbing the steps in front of the house.
6. So far as demand and acceptance of dowry, he holds that there was no such demand and acceptance of dowry either prior to the marriage, at the time of marriage or subsequent to the marriage and on the other hand, he holds payment of Rs. 20,000/- and giving ornaments is a customary practice. So far the subsequent demand for Rs. 20,000/-, he opines that it was nothing to do with the dowry as such as it was not in relation to the marriage between the parties. So far as alleged harassment caused to the deceased-Mahadevamma, he rejected the contention of the prosecution that none of the witnesses for the prosecution were able to describe the exact nature of cruel treatment or harassment that was caused to the deceased-Mahadevamma. According to him, even the last visit of deceased to her parents house was in relation to attend a festival and not for the purpose of getting Rs. 20,000/- for the alleged house construction. He further holds that the kith and kin of the deceased were exaggerating the entire situation as they were on inimical terms with the accused, which was evident from the fact of causing injuries to respondent No. 3, the husband of the deceased subsequent to the death of Mahadevamma. According to him, when the prosecution was unable to establish the subsequent demand of dowry of Rs. 20,000/-, there cannot be any dowry death as put forth by the prosecution for the offence punishable u/S. 304-B. Ultimately the learned Trial Judge comes to conclusion that the prosecution utterly failed to establish any of the charges levelled against the respondents herein and therefore Accused Nos. 1 to 5 were acquitted of all the charges levelled against them.
7. Aggrieved by the said judgment and order of acquittal the State has chosen to file this appeal questioning the correctness and legality of the judgment of the trial Court.
8. According to the learned Government Advocate, the evidence brought on record through the kith and kin of the deceased i.e. PWs-1, 3, 7, 10 and 11. the prosecution was not only able to establish the demand and acceptance of dowry at the time of marriage but also the harassment to the deceased at the hands of the respondents with the further demand of Rs. 20,000/- for the house construction by the respondents. This further demand for Rs. 20,000/- according to the learned GA, is consistently spoken to by all the witnesses and therefore the prosecution was successful in establishing the offence u/S. 498-A. So far as the cause of death of the deceased, the initial argument of the learned Govt. Advocate is to the effect that the very presence of head injury both external and internal, i.e. contusion on the right side of the head with underline haematoma coupled with damage to the thyroid cartilage would definitely indicate that it was a homicidal death amounting to murder and nothing short of murder. In the alternative, according to the learned Govt. Advocate, if for some reason the Court refuses to accept the contention of the prosecution to categories the offence as one punishable u/S. 302, IPC, the material placed before the Court would attract the ingredients of Sec. 304-B. Therefore, in the alternative, prosecution case for offence publishable u/ S. 304-B has to be accepted. According to him, very defence theory of accidental fall resulting in death is very improbable and the trial Court has rightly rejected the said defence theory.
9. He relies upon the decision reported In AIR 1975 SC 1252. Pedda Narayana v. State of Andhra Pradesh, in order to lend support to his contention that the Court can take into consideration the contents of Inquest Mahazar conducted u/S. 176, Cr.P.C. in order to ascertain apparent cause of death.
10. He also relies upon 2006 AIR SCW 5300, Trimukh Maroti Kirkan v. State of Maharashtra, on the question of drawing adverse inference against the respondents if the husband or his family members comes out with false explanation or do not explain the cause for unnatural death of the deceased as they were the caretakers of the deceased at the relevant point of time. He relies upon Sec. 106 of the Evidence Act as well to draw such adverse inference.
11. He relies upon, 2006 (1) SCC (Crl) 134 : AIR 2005 SC 3501, Devinder Singh v. State of Punjab, to contend that in the absence of evidence of the deceased the testimony of her parents would be most relevant regarding demand and acceptance of dowry and so also the continuous dowry demands and consequent cruelty and harassment to the wife.
12. He refers to 2006 SCC (Cri) 129 : AIR 2005 SC 3546, regarding the presumption to be drawn u/S. 113-B of the Evidence Act relating to dowry death once prosecution establishes the ingredients of Sec. 304-B, IPC. Lastly, he submits that when once the prosecution places reliance u/S. 498-A and 304-B, if the material on record would otherwise establish or bring the offence u/ S. 306, IPC the same is permissible as ultimately the Court has to consider whether there was cruelty at the hands of the respondents to the victim either for dowry demand or for some other reason.
13. With these arguments he seeks for allowing the appeal reversing the judgment of acquittal of the trial Court.
14. As against this, the learned Counsel for the respondents contend, the very cause of death in the present case opined by the medical expert PW-5 cannot be relied upon as none of the features of asphyxia were present, neither external nor internal, and the dead body was highly decomposed to assist the medical expert in arriving at definite conclusion regarding the cause of her death. He also Stresses upon the fact that no ligature was present as per the evidence of medical expert except some reddening colour around the neck. According to him, the tracheal tissues damaged fully which could be due to mishandling of the dead body while conducting postmortem. As a matter of fact, he supports the reasoning of the learned trial Judge so far the absence of demand and acceptance of dowry and consequent harassment to the victim at the hands of the respondent-accused. According to him, in the absence of prosecution establishing the main ingredients of Sec. 498-A, IPC the question of considering offence u/S. 304-B would not arise. In other words, the kith and kin of deceased ought to have explained the nature of harassment or cruel treatment meted to the deceased instead of just giving a statement that she was harassed with the demand of Rs. 20,000/-. Even otherwise, according to the defence Counsel, the payment of Rs. 20,000/- and presenting some gold ornaments at the time of marriage was only customary one which is evident from the evidence of PW. 1. Therefore, even the offence punishable u/Ss. 3 and 4 of the Dowry Prohibition Act are not established. So far offence under Sec. 302, IPC is concerned, according to him the prosecution has utterly failed to establish the said charge beyond reasonable doubt.
15. on the question of considering the contents of Inquest Mahazar drawn u/s. 176, IPC he refers to 2005 Cri LJ 65, Saro Rana v. State of Jharkhand, to contend that in the absence of details of harassment in the evidence of witnesses of the prosecution, consideration of cruelty would not arise and so also further demand for any amount subsequent to the marriage, if any, in relation to the marriage will not amount to Dowry within the meaning of Sec. 2 of Dowry Prohibition Act. On the same proposition he relies on 2002 SCC (Crl) 48 : AIR 2001 SC 2828, Head Note-F, Satvir Singh v. State of Punjab. With these submissions, the learned Counsel for the defence seeks for dismissal of the appeal by confirming the judgment of trial Court.
16. We have gone through the entire material carefully. We have also gone through the documents relied upon by the prosecution and the citations referred to above.
17. The point that would arise for our consideration is, whether the judgment and order of acquittal seeks for any interference?
18. Cause of Death :— It is evident from records, though initially the case came to be registered for offences punishable u/S. 304-B, IPC apart from 498-A IPC, after investigation the charge-sheet came to be filed for an offence punishable u/S. 302 IPC. In all probability this must have been so, after obtaining definite opinion of the doctor PW-9 regarding the cause of death. It is not in dispute that deceased died otherwise than under natural circumstances on 13-4-1991.
19. There is difference of opinion as to who saw the dead body first in the matrimonial home. The fact remains on 13-4-1991 the unnatural death of the deceased came to light not only to the kith and kin of the deceased but also to the entire village. By 3 p.m. or 4 p.m. on 13-4-1991 the parents of the deceased came to the place of incident. Nothing seems to have happened that evening except lodging a complaint as per Exhibit P. 1 at about 5 p.m. The inquest proceedings under Exhibit P. 7 by Taluka Executive Magistrate came to be conducted on 14-4-1991 between 11 a.m. to 2 p.m. Subsequent to the inquest proceedings the dead body was sent to Kanakapura Government Hospital for post-mortem.
20. The postmortem on the dead body of Mahadevamma came to be conducted between 11.30 a.m. to 12.30 p.m. on 15-4-1991. The information furnished to this medical expert regarding the cause of death was hanging on 13-4-1991 at about 10 a.m. By the time he conducted the post-mortem on the deceased the dead body was in the, advance stage of decomposition. The external appearance as per his evidence was the tongue was protruding, severe red congestion present around the neck, front and chest with small superficial abrasions "below the Mandible. On dissection, he found the contusion present on the left temporal region with haematoma. The brain matter was shrunken and liquefied. The Thorax region was intact, congested, Thyroid cartilage was broken. He opines that the death was due to asphyxia as a result of hanging. Subsequently, the Investigating Officer sought for further opinion as per his letter dated 6-7-1991 by sending pieces of rope that came to be seized by the Tahsildar at the spot during the inquest proceedings. The query was, whether it was homicidal or suicidal hanging. The medical doctor opines that the rope produced could be used for hanging but according to him, the observations on the dead body suggests use .of thicker material than the rope sent for examination. He further opines the hanging may be homicidal because of presence of I contusion injury on the left temporal region. Further clarification was sought on 29-8-1991 from the medical doctor to clarify in detail whether the homicidal hanging was with the same rope sent along with the rope on 6-7-1991. He opines that said material might be used for causing such ligature. The Investigating Officer was not satisfied with this clarification. Therefore, he again sought final clarification in the month of November 1991 as evidenced from Exhibit P.11. The doctor furnishes his opinion as per Exhibit P. 12. According to him, it is a case of homicidal hanging on account of presence of injury on the left temporal region and absence of the ligature mark suggesting suicidal hanging. The injury on the temporal region can cause unconsciousness, which could be due to injury due to blunt weapon or by pushing the deceased's head to the wall.
21. After obtaining this final opinion, the Investigating Agency ultimately filed charge-sheet for offence punishable u/S. 302, IPC as well. Both PW-5 and PW-9 initially opined that the death was due to asphyxia as a result of hanging. During the course of evidence PW-9 opines that the rope sent to him for examination could be used for the purposes of hanging. Though he refers to injury on the temporal region which could be due to force by any blunt weapon or by thumping head of the deceased against wall, he rules out the death of the deceased due to head injury on the left temporal region of the deceased. Therefore, the doctor has found in his opinion that the death was due to asphyxia as a result of hanging. He explains absence of ligature mark around the neck which could be due to advanced stage of decomposition of the body. Earlier to this doctor, the Taluk Executive Magistrate PW-15 had seen the dead body during the inquest proceedings. He has also not noticed any ligature mark around the neck of the dead body. According to the Tahsildar there was abrasion below the chin and bluish bruising on the back and also on both the sides of ribs. The post-mortem doctor says, around the neck there was reddening (congestion). He also refers to the bruises below the chin and also chest. Near right mandible we find another abrasion. The tracheal thyroid cartilage was damaged. During the cross-examination he categorically rules out the head injury being the cause of death in the present case. During cross-examination a suggestion was made to these witnesses that tracheal tissues gets damaged if the dead body is shifted from one place to another place in a negligent manner or during post-mortem procedure itself if the doctor is negligent. However, he opines such happening is exceptional and rare one. Voluntarily he comes out with the statement that if a rope is put around the neck and dragged with force tracheal tissues get damaged. But in such situation ligature mark do occur.
22. From the tenor of cross-examination of this witness, we notice there was extensive effort on the part of the defence to show that the deceased met with accidental death and not a homicidal death. To arrive 11 this conclusion they suggested several questions to the doctor to get an answer from him indicating under what circumstances injury on the left temporal region with haematoma could be caused. They also attempted to show that if a person suffering from attacks of epilepsy gets such attack, it can result in the death of the deceased. Though the doctor admits such happening he further opines, in this case he could not examine such situation as the brain was in a liqrrefied condition.
23. In order to accept the suggestion of the defence that there was an epileptic attack suffered by the deceased at the relevant point of time, first of all there is no acceptable evidence on record to show that deceased was suffering from epilepsy during her lifetime. Even according to the defence witnesses she did not have any epilepsy attack at the relevant point of time but she slipped on the steps while carrying two pots of water. That being the material on record, we cannot accept the contention of the defence that the deceased was suffering from attacks of epilepsy. So far the cause of death is concerned doctor has totally ruled out the head injury as the cause of death. According to him, the death was due to asphyxia as a result of hanging. Then the question is why the ligature mark was present. Apparently, the dissection of the dead body was conducted when the dead body was in the advance stage of decomposition. As a matter of fact, reddening all around the neck was noticed by the PM doctor. The skin and tissues near the mandible was getting peeled off at the time of decomposition. In that situation it would not be possible to notice any ligature mark. Of course even the Tahasildar who conducted inquest proceedings comes out with the statement of absence of ligature mark around the neck. In the book Medical Jurisprudence and Toxicology by Dr. K. S. Narayana Reddy, he refers to absence of ligature mark, if a soft material is used either for hanging or strangulation. If a person is in unconscious state of mind due to head injury and if that person were to be hanged or strangulated when such person is still alive, all appearances of case of Asphyxia would definitely be present. Similarly, if a person commits suicide subsequent to sustaining head injury it would also give the indication of death due to asphyxia as a re-I suit of hanging. In the present case, apparently the presence of haematoma at the left temporal region with contusion appearing ' externally would suggest, there was use of external violence on the person of the deceased before she died. Apparently, the ' death was not due to such head injury. Either she must have committed suicide due ' to frustration after sustaining injury or she must have been done to death when she was in unconscious state of mind either by strangulation or by hanging. If a soft material was I used either by the deceased herself or by the assailants, no ligature mark would appear.
24. So far as unnatural death of the deceased, in other words, the death of the deceased other than under normal circumstances is established by the prosecution. Then we have to advert our attention to see whether this homicidal death of the deceased was due to harassment as alleged by the prosecution with the demand of dowry amount.
25. So far as the demand of dowry and acceptance of dowry at the time of marriage in 1987, PWs-1, 3, 7 kith and kin of the deceased have stated so and the same is corroborated by the evidence of PW-11 husband of elder sister of deceased Mahadevamma. According to the prosecution, parents of the deceased could spend money for the purpose of marriage after selling the land of Heeregowda-PW-1 to two persons i.e. PW-8 and PW-14. However, PW-1 is firm on his stand that he sold his landed property in order to meet the expenses of the marriage of the deceased. PW-8 also admits that for a piece of land measuring 5 guntas he paid about Rs. 50,000/- as the sale consideration. This was in 1987. A sum of Rs. 10,000/- was given as advance and later Rs. 20,000/- was given to PW-1 at the time of marriage of deceased-Mahadevamma. The balance amount was paid in installments only in 1989 he could get the registration of the land in his name. In the cross-examination, though defence attempted to destroy the above piece of evidence, the witness withstood the cross-examination and has categorically stated how and when the amount came to be paid for completing the transaction of sale or conveyance of the land. PW-14 seems to have purchased another portion of land measuring 20 guntas in 1987 itself. Rs. 12,000/- was paid in 1987 and registration came to be done in 1989. The ' nature of cross-examination of both PWs-8 and 14 would indicate that nothing was mentioned in the sale deeds evidencing payment of advance amount at the relevant point of time of marriage i.e. in 1987. This suggestion in all probability was made because of the registration of the documents came into existence only in 1989 in both the cases. The fact remains, both P.W.8 and P.W.14 with certainty accounted how the sale consideration came to be paid in installments and especially corroborate the statement of payment of advance amount in 1987 at the time of marriage of daughter of P.W. 1. These two witnesses have no particular reason or motive to assist PW-1 if they had not paid the advance amount in 1987 towards the purchase of land which was registered in 1989. Non-mentioning of payment of advance in 1987 would not defy their evidence before the Court in any manner. Even otherwise, the consistent narration of facts giving details of cash and the gold which came to be given as dowry at the time of marriage, PW-1 and PW-3 — father and junior uncle of deceased Mahadevamma, PW-7 brother of deceased and PW-11 brother-in-law of the deceased have categorically stated though the demand was Rs. 25,000/- only Rs. 20,000/- cash came to be paid apart from giving gold ornaments weighing about 6 tolas. It is also on record that only 2 tolas worth ornaments were given at the time of marriage and later balance of 4 Tolas was given. The embarrassment caused to the parents and the girl at the time of marriage by accused No. 3 demanding gold chain at the time of nuptial ceremony is spoken to by all these witnesses. The learned trial Judge unfortunately referring to the contents of Exhibit P. 1 — the complaint given by PW-1 with that of the evidence of PW-1 before the Court concludes there are lots of contradictions and totally distorted version so far as demand and acceptance of dowry. Apparently, the contents of Exhibit P. 1 the complaint do not refer to the word "Dowry" though it refers to "Practice". Unfortunately, on this aspect the defence did not bring on record the-contradictions as required under law. Unless such contradiction was brought on record in the evidence of PW-1 the trial Court ought not to have placed reliance on such contradiction without confronting the contradiction to the witnesses concerned. It was required I on the part of defence to confront the same to the Investigating Officer or the authority who recorded such statement. Unfortunately, it was not done. On the other hand, PW-1 throughout his statement has stated that in order to meet the compliance of demand of dowry by the husband of the deceased and the marriage expenses he had to sell his land. PW-2 Thammaiah was one of the elders at the time of the marriage negotiations. He denies demand of dowry and so also subsequent harassment to the deceased. He not being the kith and kin of the deceased would not be interested to have confrontation with the accused persons by deposing against them. However, he supports the prosecution to the extent that he was present at the time of marriage negotiations talks. If there was no demand and payment of dowry the question of holding any talks would not arise at all. If there was some arrangement to be made, that many elders would not be present for such talks. This would only suggest that the marriage talks earlier to the marriage of the parties was only with regard to finalising the quantum of dowry to be given for the bridegroom. PW-2 as a matter of fact admits representing the bridegroom party during the talks. Naturally we do not expect him to assist the prosecution in a better manner than what he has done. PW-3 corroborates the evidence of his brother-PW-1 as to how the talks regarding dowry settlement was done, where it was done and the details of the ornaments to be given as part of dowry. He also narrates when exactly this amount came to be handed over to bridegroom party prior to the marriage. It has come in the evidence of this witness and so also in the evidence of father of the deceased that the marriage between the parties consummated more than 6 months after the marriage. In all probability this must have been at the instance of the bridegroom for not handing over the balance of gold ornaments-, which has come on record through the evidence of PWs-1 and 3. PW-7 son of PW-1 being the male member of the family would be aware of the details of marriage expenses, and also the cost of gold ornaments and the payment of dowry made by his father. He also says as against the demand of Rs. 25,000/-, Rs. 20000/-cash and 6 tolas of gold ornaments were given as dowry to the bridegroom and the girl. Even in the cross-examination of this witness nothing much came to be elicited regarding the demand and acceptance of dowry. PW-10 is one Kempaiah who is none other than the cousin brother of bridegroom. According to him, the wife of accused Nagaraj died due to burns. Therefore, he did not attend the wedding of accused No.3 with the deceased-Mahadevamma. He does not speak about the actual demand and payment of dowry at the time of marriage. But he speaks about subsequent demand and harassment to the victim. PW-11 is brother-in-law of the deceased, who is also one of the son-in-law of PW-1. He corroborates the evidence of other witnesses by saying Rs. 20,000/- cash and gold ornaments were given as dowry at the time of marriage.
26. From the evidence of PWs-1, 3, 7 and 11 we notice that all of them corroborate each other that as against the demand of Rs. 25,000/- cash Rs. 20,000/- cash came to be paid and gold ornaments were given as dowry. All the witnesses were definite and certain that nuptial ceremony was postponed on account of non-compliance of part of the dowry demand i.e. 4 tolas of gold ornaments. The cross-examination of none of these witnesses would destroy the material brought on record by the prosecution regarding the demand and acceptance of dowry by A-1. So far as participation of other accused persons in such talks, we do not find any convincing material.
27. In the case reported in Devinder Singh and others v. State of Punjab (2006 (1) SCC (Criminal) P. 134 : (AIR 2005 SC 3501), it is held at paragraph No. 4 as under:
"In this connection, it is to be noted that the lady who could be the best person to speak about such demands; as the demands were allegedly made to her, is no more, the only remaining evidence can be that of the parents of the deceased to whom she would be supposed to mention about such demands in order to ascertain if they could meet the same. Jagir Singh, the father of the deceased has appeared as PATHWAY. 5. He has stated that all the three accused started ill-treating his daughter about a year after her marriage and had been taunting her that she had brought less dowry. They demanded colour TV, a fridge and a cooler, besides ornaments. He further stated that they had given threats that if she did not bring those items, she would be done to death. He has given specific instances of such demands. According to him about two months prior to the incident, his daughter was turned out from their house by the accused persons after giving her a beating. The lady returned to the house of her parents and told them about the incident. Jagir Singh convened a Panchayat of respectable persons of the locality viz. Shri Sukhdev Singh, Sohan Singh and Darshan Singh and took them to the house of the accused along with his daughter. All the accused persons were present in the house when these people reached there. The accused were told that in view of the poor financial position of the father of the girl he was not able to meet their demands, still he assured that whatever could be possible within his means he will continue to do. With this assurance he left his daughter with the accused."
28. Then coming to offence u/S. 498-A, PW-1 has stated, subsequent to the marriage deceased started living at Mullahalli village in the matrimonial home and all the accused were living under the very same roof except A-4 Nagaraj. According to PW-1, subsequent to the marriage his daughter started living at Mullahalli in the house of her husband. Accused No. 4 was working at Bangalore, therefore he was regularly visiting the village and all other accused were living in the very same house. Subsequent to the marriage, a baby boy was born who was aged about 3 years at the time of her death. Subsequently, after some time she demanded Rs. 20,000/- from her father for the purpose of construction of house as demanded by her husband accused No.3 Jayalingegowda. She even disclosed harassment and cruel treatment from her husband with the demand of Rs. 20,000/-. A month prior to her death she had visited her father for some festival. During such visit she again sought for Rs. 20,000/- as demanded by her husband. He pleaded his inability to give the said amount though for about 20 days she remained in the parental house. Later, accused No.3 said to have visited the house of PW-1 and took her back to matrimonial home. During his visit, PW-1 did not talk to him about the request of his daughter. 15 days later they learnt about the unnatural death of their daughter. During the cross-examination except suggesting that false allegation is made against the husband of the deceased regarding ill-treatment to the deceased, no other evidence was brought on record to falsify his earlier statement that deceased disclosed before him the harassment caused to her at the hands of her husband with the demand of Rs. 20,000/- for the house construction. PW-3 brother of PW-1 was aware of the happenings in the house of his brother as his brother and sister-in-law were informing him from time to time what was happening to the deceased. He was also living in the same house in a different portion. After the marriage deceased started requesting her father to give Rs. 20,000/-for the purpose of house construction as her husband and others were demanding the said amount. He was also aware that PW-1 pleaded his inability to pay such amount. According to him, two months prior to her death she visited her parental house and stayed with the parents for about 1 1/2 months. She disclosed before him also regarding the ill-treatment given to her with the demand of Rs. 20,000/- by her husband and others. 15 days prior to her death, Accused No.3 visited the house of PW-1 and took the deceased back to his house. Five days later the wife of PW-1 informed him that A3- Jayalingegowda when visited them to take back his wife was very angry with them and he did not even have food in their house in spite of request by them. As she was- anxious to know the welfare of her daughter she requested this gentleman to go over to Mullahalli and find out from the deceased Mahadevamma that all was well in the matrimonial home. As a matter of fact, this gentleman visits deceased-Mahadevamma and the deceased said to have told him she was ill-treated by her husband and others. She was not able to withstand the same. She even requested him to persuade her father to arrange for the said money. But though he informed his brother Hiregowda about it he did not evince much interest. Therefore he had to keep quiet. Unfortunately, 10 days later they got the message of death of deceased. During the cross-examination of this witness though defence extensively cross-examined this witness with regard to sale transaction of land by PW- 1 to PW-8 and PW-14, so far his visit to the house of deceased on the request of his sister -in-law nothing much was elicited except suggesting that he did not visit Mahadevamma as per request of wife of his brother. PW-7 elder brother of the deceased who was very much living in the same house where PW-1 and others were living speaks not only about details of marriage etc. but also last visit of his sister to his house and the revelation of harassment to her by the accused demanding Rs. 20,000/- for the purpose of house construction. According to this gentleman though they encouraged the deceased to return back to her matrimonial home she was reluctant to go back saying till she was given Rs. 20,000/- she would not go . Then he reveals the visit of Accused No.3 to their house who took back his wife and he further discloses that in spite of requesting A-3 to have food in their house he refused to take food. Eight or ten days later they learnt the death of deceased. PW-11 is the brother-in-law of the deceased. He was also residing where the parents of the deceased were living. This witness do not have any direct information regarding the harassment but through his wife before whom deceased was pouring out her misery he learnt that she was subjected to cruel treatment, which is nothing but hearsay evidence.
29. We have one more important witness on this aspect i.e. PW. 10. This gentleman is from Bulla village who is closely related to accused. He not only discloses the death of wife of Accused-4 Nagaraj but also the harassment caused to the deceased. He only speaks about harassment caused to the deceased at the hands of accused which he learnt through his wife. However, he confirms the fact that at the time of death of deceased, accused were constructing a new house at Mullahalli village. The learned Trial Judge, so far as this aspect of the mater holds that the case of prosecution regarding the harassment and cruel treatment caused to the deceased at the hands of the accused cannot be believed as none of the witnesses have given any details of nature of harassment caused to her i.e. whether physical or mental harassment. No doubt, the kith and kin of the deceased have not stated whether the deceased was assaulted or abused by accused and when such abuses were hurled or assaults caused to her. But the fact remains, she stayed back in the parental house for more than 20 days and she even disclosed before her kith and kin that unless and until PW-1 gives her Rs. 20,000/- she would not go back to matrimonial home. Therefore, she was reluctant to go back to her matrimonial home without the money. When the witnesses were made to give the facts in support of the charges levelled against the accused persons they would not even be aware that they were supposed to give actual nature of harassment. Then the question is, whether mere absence of nature of harassment would not be enough to discard the evidences of near and dear ones of the deceased. It is the parents, brother and other close relatives who would know the plight of their daughter in the matrimonial home. Except before her parents and other kith and kin the deceased would not have disclosed the embarrassment or harassment caused to her by the husband and others. A reading of their evidence in its entirety would only indicate that the deceased was scared to go back to her matrimonial home without Rs. 20,000/-with the apprehension of ill-treatment by her husband and others. This would only indicate that she was happy to stay back with her parents rather than face the wrath at the hands of her husband and others. The uncle and brother of victim even disclosed the conduct and also behaviour of accused No.3 when he visited the deceased to take her to matrimonial home.
30. Of course, there is variance in the statements of kith and kin of the deceased regarding how long the deceased stayed in the parental house during her last visit, whether she voluntarily came for the festival or whether she was brought by her parents for the festival and so also with regard to the number of days she lived after she left parental house before her death. This variance in the narration of facts by kith and kin of the deceased is not at all on the material aspect of the matter. Whether she stayed 20 days or l!/2 months would not matter much. The fact remains that she did visit her parents a month prior to her death during some festival and she was reluctant to go back to her matrimonial home without Rs. 20,000/- being given by her father. Her disclosure regarding the ill-treatment at the hands of her husband and others for such money is also consistent in the evidence of these witnesses. Therefore, the very behaviour of accused No.3 in his last visit to the house of P. W. 1 would indicate that he was very angry with his in-laws for not giving Rs. 20,000/- as demanded by him. Therefore, he did not even take food in the house of his father-in-law. If this was the behaviour during his visit to his father-in-law's house, it is quite reasonable to come to the conclusion that deceased was justified in her reluctancy to accompany her I husband without Rs. 20,000/-. This would establish the fact that she was scared to face her husband and others without Rs. 20,000/ - from her parents. Therefore, non-mentioning of details of harassment to her under the above circumstances is not at all fatal to the case of the prosecution to establish the charge under Section 498-A, IPC.
31. Soon after her return to matrimonial home after her last visit to her parents, she met with an unnatural death in the matrimonial home. The material placed before us would indicate different theories of defence for her unnatural death and different versions are brought on record.
32. The contents of inquest proceedings conducted by PW-15 Taluk Executive Magistrate, as per the column No.3, would indicate at about 9 or 9.30 a.m. on 13-4-1991, Accused No. 1, father-in-law of the deceased, came home to have water and noticed deceased hanging to the ceiling of the house. Then he informed the same to villagers and the family members. These details no doubt are not brought on record by the prosecution in the examination-in- chief of PW-15 and so also in the evidence of witness to the Inquest Mahazar, PW-4 Thimmegowda. Through the defence witnesses, the accused attempted to show the Court that death did not happen the way prosecution is trying to establish, but death of the deceased was due to accidental fall on the steps of the house when she slipped while carrying two pots of water to the house.
33. The learned Counsel for the defence trial to submit that it was the duty of the Executive Magistrate to record statement of father-in-law of the deceased in order to know the apparent cause of death as they were living in the very same house along with the deceased. The contents of Exhibit P. 7 would indicate only the parents and other blood relatives of deceased were examined but the presence of Al is also indicated. As a matter of fact, it was this accused who shows the spot of dead body hanging and also 3 pieces of rope nearby the place of incident. Whether the Court can look into the contents of inquest mahazar (See 176 Cr. P. C.) to ascertain the apparent cause of death.
34. In AIR 1975 SC 1252 (Podda Narayana and others v. State of Andhra Pradesh) it is held as under :
44.......The object of holding any inquest as can be seen from Section 174, Cr. P. C. is to find whether a person died a natural death or a homicidal death or due to suicide. It was therefore not necessary to enter all the details of the overt acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at the inquest did not contain those over-acts and the statements now produced are those of the witnesses which were taken later."
35. The learned Counsel for defence relies upon the following decision :
2005 Cri LJ 65 (Saro Rana and others v. The State of Jharkhand)
12. When this evidence is considered meticulously, I come to the conclusion that just prior to her death, Renu Devi was not harassed or tortured. There is no evidence oral or documentary to support this allegation of torture, just prior to the death, rather the evidence conclusively leads my mind to come to conclusion that Renu Devi was living in her matrimonial house with appellant No.2 happily. But accidentally, while she had gone to the well along with Pathway-6 Kunti Kumari for taking bath and to fetch water from the well, she fell down and died. Sarpanch of Govindpur was also there. The dead body was brought out by the villagers who had assembled on hearing alarm raised by PATHWAY-6 Kunti Kumari. They brought out the dead body out of the well. Information was sent to the parents of the deceased to village Mohandih, but when no one arrived in time, the dead body was disposed of. The learned 1st Additional Sessions Judge, Deoghar was misled by emotion that a young lady died in her in-laws' house just within seven years of marriage. He failed to consider the evidence of the witnesses who have deposed that there was cordial relationship and the deceased was leading happy marital life along with appellant No. 2, her husband Shyam Sundar Rana. There is no demand of dowry rather demand was only for construction of house. Moreover, there is no evidence that just prior to death of Renu Devi, she was being harassed or tortured by her in-laws for non-fulfilment of dowry. The ingredients to attract Section 304B, IPC are wanting in this facts and circumstances of the case. Hence the order of conviction and sentence passed by learned 1st Additional Sessions Judge, cannot be sustained in the eye of law.
13. In the result, I find merit in this criminal appeal which succeeds. All the appellants are acquitted from the charges levelled against them under Sections 304B/34 and 201/34, IPC. As appellant No. 3 Kanti Rana and appellant No.4 Byas Rana are on bail, they are discharged from the liability of their bail bonds furnished in this case. So far appellant No. 1 Saro Rana and appellant No.2 Shyam Sundar Rana are concerned, they are in custody. Hence, they are ordered to be released forthwith from the custody if not wanted in any other case."
36. According to the defence, the elders of the village who were holding talks for the festival of the village noticed deceased falling on the steps accidentally and put her on the cot inside the house who was in unconscious state of mind. They also come out with the statement that within few minutes of the fall she died and thereafter they sent word for accused who were working in their lands. However, the trial Court did not accept this defence theory that she died due to accidental fall. We are also not convinced with the argument of the learned Counsel for the defence that the deceased met with her death on account of accidental fall on the steps while carrying water to the house. Apparently, the cause of death was also not due to the head injury sustained by her as per the evidence of autopsy doctor P. W. 9. This doctor noticed contusion on the left temporal region of the head and on dissection he found haematoma. If the cause of death was due to head injury sustained by her there would have been some truth in the defence theory that she sustained such head injury while carrying water to the house.
37. The medical expert says she died due to asphyxia which must have been due to either hanging or strangulation. In other words, she died subsequent to sustaining the head injury. Apparently, there was none present in the house when she was found hanging to the roof in the cattle shed. It was accused No. 1 who noticed such a shocking scene in the house. If father-in-law were to be the first person to notice the ghastly death of the deceased, he would have been the first person to intimate the police. Even according to the defence theory she died about 9.30 a.m. or 10 a.m. on 13-4-1991. By the time the police arrived at the spot it was 4 p.m. or 4.30 p.m. By 5 p. m. PW-1 lodged a complaint before the concerned police. Between 10 a.m. to 5 p.m. neither the husband nor the in-laws took any steps to inform the concerned police about the so-called accidental fall or the death due to hanging as noticed by accused. No. 1. This would only indicate that they were very well aware of the cause or reason why the deceased met with unnatural death. But they were reluctant to intimate the concerned authority or the parents of the deceased themselves. Through some messenger, the message was sent to her parents. But there is nothing on record that these accused were the persons who sent such message to the parents of the deceased. This would only suggest though the inmates of the house of husband of victim were very well aware of the cause of death of deceased, they came out with false explanation. Therefore, by taking recourse to Sec. 106 of Evidence Act, adverse inference is drawn against them.
38. Sec. 106 of Evidence Act, reads as under :
Burden of proving fact especially within knowledge : When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
39. In the recent judgment of Supreme Court reported in AIR 2006 SCW 5300 (Trimukh Maroti Kirkan v. State of Maharashtra) it was held as under:
"11. 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 bridge 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.
12. 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 v. Karnail Singh (2003) 11 SCC 271) : (AIR 2003 SC 3609). 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 :
(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
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."
40. The prosecution with the above evidence was successful in establishing that within 10 or 15 days after her last visit to the parental house deceased died under suspicious circumstances i.e. otherwise than under normal circumstances. The evidence of kith and kin, as discussed above would establish the apprehension of deceased to go back to matrimonial home as parents of deceased were not able to give her Rs. 20,000/- as demanded by her husband for the construction of the house. Apparently, she died within 7 years of her marriage. The question is, whether the ingredients necessary for an offence u/S. 304-B, IPC are made out as contended by the prosecution.
41. Though the prosecution was successful in establishing unnatural death of the deceased and also harassment caused to her soon before her death, we find that the subsequent demand for Rs. 20,000/- cannot come under the definition of Dowry as defined u/S. 2 of the Dowry Prohibition Act. We refer to the following decisions:
(i) 2002 SCC (Criminal) 48 : (AIR 2001 SC 2828) (Satvir Singh v. State of Punjab) :
The word 'dowry' in Section 304-B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties." This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry".
(ii) 2007 AIR SCW 456 paragraph 9 (Appasaheb & Another v. State of Maharashtra):
9. Two essential ingredients of Section 304-B, IPC, apart from others are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for 'dowry'. The explanation appended to sub-section (1) of Section 304-B, IPC says that 'dowry' shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.
Section 2 of Dowry Prohibition Act reads as under :
"2. Definition of 'dowry'— In this Act 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly.—
(a) by one party to a marriage to the other parry to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies in view of the aforesaid definition of the word 'dowry' any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for 'dowry' as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was alleged asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B, IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.
42. From the evidence of witnesses, kith and kin of the deceased we notice that dowry was settled at Rs. 20,000/- cash and 6 tolas of gold at the time of marriage. As a matter of fact, some part of the dowry demand was complete prior to the marriage and thereafter within six months or so the balance of demand was accomplished. In other words, as on the date of death of the deceased there was nothing due so far as the dowry agreed to be given by the parents of the deceased at the time of marriage. This demand for Rs. 20,000/- seems to have been within 6 months or so prior to her death. There is long gap between the date of marriage and this demand, i.e. about 4 years difference.
Further it is not even the case of the prosecution that this Rs. 20,000/- was balance of dowry demand. Therefore, we have to hold that though the victim in this case was subjected to cruelty or harassment soon before her unnatural death but the same was not in relation to dowry demand.
43. Then the question is, whether the offence u/S. 302, IPC is established by the prosecution. According to the prosecution also at about 9 or 9.30 a.m. she was found dead in the house by her father-in-law when he came to have water in the house. None of the other members of the family were present. There is no evidence to establish with certainty that the head injury found on the person of the deceased was caused immediately prior to her death by any of the accused. It is nobody's case that when she tried to commit suicide by hanging she fell down and sustained this head injury. It is not the case of the prosecution that the circumstances and the other findings at the scene of offence would indicate such fact. I On the other hand, this head injury is ante-' mortem injury. In all probability this must have been due to assault by her husband for not bringing Rs. 20,000/-. But there is no material or reasonable doubt to establish that after causing this head injury she was either strangulated or hanged by the husband and others. Therefore, the established or proved facts before us do not establish the offence u/S. 302, IPC beyond reasonable doubt.
44. Then the question is whether this Court can hold anyone guilty of offence punishable u/S. 306, IPC. Apparently, there is no charge for an offence punishable u/S. 306, IPC. Section 498-A refers to two kinds of harassment. So far Sec. 498-A(a) pertains to willful conduct on the part of the husband or his relatives in driving the woman to commit suicide or to cause injury or damage to her life. So far section 498-A(b) it pertains to harassment with a view to coerce her or any person related to her {kith and kin) to meet any unlawful demand. Either any property or valuable security, and such harassment is on account of failure to comply with such demand by woman or her kith and kin. Apparently, the demand for Rs. 20,000/- was for the purpose of house construction which is almost 4 years after marriage of the deceased with accused No.3. The facts further reveal that it was not part of the unpaid dowry amount. It was a fresh demand subsequent to the marriage, which was not legal and lawful. As a matter of fact, father of the deceased expresses his inability to pay the said amount and in spite of his knowledge of harassment to the daughter through PW-3 he kept mum. This would only indicate his inability to meet with such unlawful demand. His reluctancy to pay the said amount even if he was affluent would not make the demand lawful. Ultimately, the Court has to say whether the victim was subjected to harassment and cruel treatment with unlawful demand of any property or valuable security. Apparently, non-fulfilment of demand of Rs. 20,000/- kept her in the parental house for almost one month or so. Victim was scared to face the husband and others without Rs. 20,000/-. She must have undergone lot of mental torture due to the attitude of her husband, which is evident from her reluctancy to return to matrimonial home. It is only on account of such harassment she was subjected even to physical assault, which is also evident from the head injury she sustained soon before her death. Both physical torture and mental torture was meted to the deceased persistently by accused No.3 with the demand of Rs. 20,000/- from the parents of the deceased. Hence, the prosecution was able to establish Sub-sec, (b) of Sec. 498-A of IPC. Whether this Court could proceed to hold Accused No.3 guilty of offence u/S. 306, IPC. In order to hold a person guilty of offence punishable either u/S. 306 or 304-B, the prosecution must be able to establish the cruel treatment or harassment to such victim at the hands of her husband or her relatives either under 498-A(a) or 498-A(b). Whether the accused had enough opportunity to know the charges levelled against him. It is the allegation of the prosecution for quite some time, she was subjected to harassment and cruel treatment with demand of Rs. 20,000/-. This charge was known to the accused persons and they had opportunity to defend themselves in respect of all the charges. Mere altering the charge to Sec. 306 from 304-B, IPC, it would not cause any prejudice to the interests of the accused. Therefore, there is no scope for the accused to say that he was not given an opportunity to defend himself properly and effectively.
45. Under the given circumstances, we hold, prosecution is able to establish an offence punishable u/S. 306, IPC. Then com-
ing to the question of which of the accused is guilty of which of the offences, we hold accused No. 1 guilty of offences punishable u/Ss. 3 and 4 of the Dowry Prohibition Act. Except an omnibus statement involving all others other than the accused No.3 regarding harassment caused to deceased with the demand of Rs. 20,000/- we do not have definite and consistent evidence so far as accused Nos. 1,2,4 and 5 are concerned. So far as offence u/Ss. 498-A and 306, IPC, the prosecution is able to establish the guilt of accused No. 3 husband of the deceased beyond reasonable doubt.
46. The trial Court though had enough material to bring down the offence to Sec. 306, IPC in lieu of Sec. 498-A(b) being established, on flimsy grounds held, Sec. 498-A, IPC was not established. It totally ignored the consistent statement of the brother and uncle of the deceased regarding the behaviour of accused No.3 in the house of his father-in-law during his last visit. Ultimately, it misled itself to acquit the accused No.3 even for the charge u/S. 304-B. The very appreciation of evidence right from the inception, the trial Court went on a wrong ' footing, ultimately resulting in miscarriage of justice. Therefore, we hold that from the material placed on record there is no scope for two reasonable views. There is only one reasonable view holding the accused No. 1 guilty of offence punishable u/Ss. 3 and 4 of the Dowry Prohibition Act and to hold accused No.3 guilty of offences punishable not only under Section 498-A but also u/S. 306, IPC.
47. Accordingly, we allow the appeal in part. So far as accused Nos. 2, 4 and 5 we confirm the judgment of acquittal passed by the trial Court in their favour. So far accused No.l, father-in-law of the victim, we hold him guilty of offences punishable u/Ss. 3 and 4 of the Dowry Prohibition Act, and accused No.3, husband of the victim, guilty of offences punishable u/S. 398-A and Sec. 306 IPC.
48. Heard regarding sentence. Learned Govt. Advocate submits, having regard to the nature of offences established the Court must adequately punish the guilty so that no miscarriage of justice would occur. Learned Counsel for the defence submits, Al is aged between 85 to 90 years as on today. However, we do not have any proof in support of his age. The fact remains, as on the date of filing charge-sheet he was aged about 75 years as per records. But this cannot be a mitigating circumstance to reduce the sentence as invariably in all cases u/ Ss. 3 and 4 of the Dowry Prohibition Act against the in -laws, the in-laws have to be older in age. However, we do take into consideration the time spent between the date of commission of offence and the reversal of the judgment of acquittal against A-l. We feel imposing a sentence of 6 months taking into account every aspect of the matter would meet the ends of justice so far as Sec. 3 of the Dowry Prohibition Act is concerned. We also impose a fine of Rs. 20,000/- to be paid by accused No. l, in default he shall undergo imprisonment for one more month.
49. So far as offence u/S. 4 of the Dowry Prohibition Act we impose a sentence of imprisonment for a period of 3 months and shall also impose a fine of Rs. 10,000/-, in default he shall undergo imprisonment for one month. Both the sentences shall run concurrently. He shall have the benefit of Sec. 428, Cr. P. C. if he was in custody during trial.
50 . So far as the offence u/S. 498A established against accused No.3, we impose a sentence of 3 years and also impose a fine of Rs. 5000/-. In default he shall undergo further imprisonment for a period of one month. So far as offence u/S. 306, IPC we impose sentence of 5 years against accused No. 3 and he shall pay a fine of Rs. 5000/-, in default he shall undergo further imprisonment for a period of one year. Both the sentences so far accused No.3 shall run concurrently. He shall have the benefit of Sec. 428, Cr. P. C. if any.
Appeal partly allowed.
