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2016 DIGILAW 354 (KAR)

K. v. Prakash Babu VS State of Karnataka

2016-04-13

MOHAN M.SHANTANAGOUDAR, R.B.BUDIHAL

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JUDGMENT : Budihal R.B., J. 1. All the three appeals are against the judgment and order dated 5.1.2012 passed by the Fast Track Court-III at Kolar in Sessions Case No.243/2004. 2. Criminal Appeal No. 126/2012 is filed by appellant-accused No. 1 challenging the judgment of the trial Court convicting him for the offences punishable under Section 3 of the Dowry Prohibition Act and under Section 498A of IPC. Criminal Appeal No.655/2012 is filed by the State challenging the order of acquittal of accused No. 1 for the offence under Section 302 of IPC and the order id' acquittal of accused Nos. 2 and 3 for the offences under Section 498A of IPC and Section 3 of the Dowry Prohibition Act. Criminal Appeal 656/2012 is also preferred by the State seeking enhancement of sentence imposed on accused No. 1 for the offences under Section 3 of the Dowry Prohibition Act and under Section 498A of IPC alleging that it is totally inadequate. 3. Brief facts of the prosecution case before the trial Court are, the Inspector of Police, Anti-dowry cell, Corps of Detectives, Bangalore, filed the charge-sheet against accused Nos.1 to 3 for the offences punishable under Sections 498A, 302, 201 of IPC and under Sections 3 and 4 of the Dowry Prohibition Act r/w Section 34 of IPC. The deceased Anjinamma, daughter of the complainant Muniyappa was given in marriage to accused No.1 Prakash Babu on 12.10.1997; at the time of marriage, accused Nos.1 to 3 demanded dowry of Rs. 15,000/- and gold ornaments; accordingly, complainant-Muniyappa gave dowry of Rs. 15,000/- and gold ornaments to his daughter Anjinamma; after the marriage complainant sent his daughter Anjinamma to the house of the accused. Accused Nos.1 to 3 were residing at Kondorapalli village and at that time, accused subjected Anjinamma to cruelty; they were insisting her to bring more dowry from her parents and when Anjinamma was pregnant for the second time, complainant Muniyappa has paid Rs. Accused Nos.1 to 3 were residing at Kondorapalli village and at that time, accused subjected Anjinamma to cruelty; they were insisting her to bring more dowry from her parents and when Anjinamma was pregnant for the second time, complainant Muniyappa has paid Rs. 10,000/- to her when Anjinamma had come to his house for the second delivery; accused No.1 had developed illicit relation with one Deepa of Chelur village and later accused No. 1 was asking Anjinamma to give her consent for his second marriage with Deepa; when Anjinamma refused to give her consent accused No.1 has assaulted her and in spite of panchayath accused No.1 continued illicit relation with Deepa of Chelur; about three months prior to her death, Anjinamma and accused No.1 started residing in a rented house at Nallagutlapalli village. On 20.8.2004 at about 8.30 p.m. accused No.1 strangulated his wife Anjinamma with rope and thereby, all the accused have committed the above offences. 4. On the basis of the material, the trial Court has framed the charge against accused Nos.1 to 3 for the offences punishable under Section 3 of the Dowry Prohibition Act and under Section 498A of IPC and as against accused No.1 charge under Section 302 of IPC was also framed. 5. In support of its case, prosecution in all examined 31 witnesses and got marked 23 documents and 4 material objects. On behalf of defence, Exs. D1 to D4 were marked, but no witnesses were examined. After considering the materials placed on record, the trial Court has ultimately convicted accused No. 1 for the offences punishable under Section 3 of the Dowry Prohibition Act and under Section 498A of IPC and acquitted him for the offence under Section 302 of IPC. The trial Court has also acquitted accused Nos.2 and 3 of all the charges levelled against them. Being aggrieved by the same, these three appeals are preferred by accused No. 1 and also by the State respectively. 6. We have heard the arguments of learned counsel appearing for appellant-accused No.1 in Cri. A. No. 126/2012 and also the respondents-accused Nos.2 and 3 in Cri. A. No. 655/2012, and also heard the arguments of learned SPP for the State. 7. 6. We have heard the arguments of learned counsel appearing for appellant-accused No.1 in Cri. A. No. 126/2012 and also the respondents-accused Nos.2 and 3 in Cri. A. No. 655/2012, and also heard the arguments of learned SPP for the State. 7. Learned counsel for the appellant-accused No. 1 submitted that the prosecution has failed to produce cogent and satisfactory material to prove the offence of demand for dowry and also the ill-treatment to deceased Anjinamma. He has submitted that there is no consistency in the evidence of prosecution witnesses with regard to demand for dowry amount and also acceptance of dowry amount from the complainant. He has submitted that the trial Court has totally ignored inconsistencies and contradictions in the evidence of prosecution witnesses while convicting accused No. 1 for the said offences. When the incident took place, accused No.1 was not at all in the house and by the time he came to his house during night, the deceased had already committed suicide by hanging herself. Though it is the allegation as against accused No. 1 that he committed murder of Anjinamma with the help of rope M.O.1 and after causing her death he strangulated her, the evidence of prosecution witnesses, more particularly, the evidence of doctor who conducted post-mortem examination clearly shows that the case of the prosecution is false with regard to the allegation that accused No.1 has committed the murder of Anjinamma. The doctor has given clear opinion that ligature mark found on the neck of deceased cannot be caused by M.O.1 rope. Even with regard to the allegation that accused No.1 was having illicit connection with one Deepa of Chelur village and for that reason he was giving ill-treatment and harassment to the deceased and accused No.1 was insisting deceased Anjinamma to give consent to have marriage with Deepa, absolutely there is no material placed by the prosecution to prove the said allegation and hence, the trial Court has rightly acquitted the accused for the alleged offence under Section 302 of IPC. Learned counsel has also submitted that so far as accused Nos.2 and 3 who are respondents in the connected appeal are concerned, it has come in the evidence of prosecution witnesses itself that though immediately after the marriage accused Nos.1, 2 and 3 were living together and deceased Anjinamma went to their house to lead marital house, but subsequently, i.e, three months earlier to the incident in question, deceased and accused No.1 have shifted to another village. There is no material as against accused Nos.2 and 3 regarding their involvement in committing the alleged offence and the only allegation is that accused Nos.2 and 3 were instigating accused No. 1 in committing the offences and even for the said instigation, there is no material placed by the prosecution and accordingly, they were acquitted. Hence, it is submitted that regarding ill-treatment and harassment of the deceased by accused No. 1 in connection with the dowry amount and the illicit connection with Deepa, there is no worth believable material and the trial Court is not justified in convicting accused No.1 even for the offences punishable under Section 3 of the Dowry Prohibition Act and Section 498A of IPC. Accordingly, it is submitted to allow the appeal filed by accused No.1, set aside the judgment of conviction and acquit accused No. 1 and also to dismiss the appeal preferred by the Government questioning the acquittal of accused No.1 for the offence under Section 302 of IPC. In support of his arguments, learned counsel for accused No.1 has relied upon the following decisions: 1. 2009(4) Crimes 190 (SC) : ( AIR 2010 SC 512 ). 2. 2007(2) Crimes 103 (SC) : (AIR 2007 SC (Supp) 111). 8. The learned SPP during the course of his arguments submitted that regarding the demand and acceptance of dowry amount is concerned, the parents and brother of the deceased Anjinamma so also, the elders who participated in the marriage talks have clearly deposed in their evidence and it is rightly believed and accepted by the trial Court. He has also submitted that so far as the illicit relationship of accused No.1 with Deepa, prosecution has placed satisfactory material, even then the trial Court has not believed the same. The death has taken place in the matrimonial house wherein the deceased, accused No. 1 and two children of the deceased and accused No.1 were residing. He has also submitted that so far as the illicit relationship of accused No.1 with Deepa, prosecution has placed satisfactory material, even then the trial Court has not believed the same. The death has taken place in the matrimonial house wherein the deceased, accused No. 1 and two children of the deceased and accused No.1 were residing. It is for the accused to explain satisfactorily the reason for the death of deceased in the residential house. The defence of the accused is not consistent and even in his examination under Section 313 of Cr.P.C. he has not explained satisfactorily about the death of the deceased in the matrimonial house. He has simply stated that they have not ill-treated nor caused the death of Anjinamma. It is submitted that looking to the evidence of parents, brother of the deceased and the independent witnesses, all have stated in their evidence about accused No. 1 having illicit connection with Deepa of Chelur village. Hence, he has submitted that prosecution has established its case that accused No. 1 has committed the murder of deceased Anjinamma and accused Nos.2 and 3 have instigated accused No.1 in committing the said offences. Hence, it is submitted that the appeal preferred by accused No.1 be dismissed and the appeals preferred by the State are to be allowed and the acquittal of accused No. 1 for the offence under Section 302 of IPC and acquittal of accused Nos.2 and 3 for the offences under Section 3 of the Dowry Prohibition Act and under Section 498A of IPC are to be set aside and accused Nos.2 and 3 are also to be convicted for the offences as per the charge levelled against them and accused No. 1 shall also be convicted for the offence under Section 302 of IPC. He has also submitted that the sentence of rigorous imprisonments for a period of two years and fine of Rs. 15,000/- and default sentence of simple imprisonment for a period of six months for the offence under Section 3 of the Dowry Prohibition Act and further the sentence of rigorous imprisonment for a period of one year and fine of Rs.5,000/- and default sentence of simple imprisonment for a period of two months for the offence punishable under Section 498 A of IPC imposed by the trial Court on accused No.1 is to be enhanced as it is inadequate. 9. 9. We have heard learned advocates at length and considered the judgment as well as the evidence of the prosecution witnesses. 10. At the first instance, the trial Court by its judgment dated 20.10.2005 in Sessions Case No.243/2004 had acquitted all the three accused from all the offences, against which, the State had preferred appeal before this Court in Cri. A. No. 243/2006 and another Division Bench of this Court by its judgment and order dated 19.7.2011, had allowed the appeal preferred by the State, consequently the earlier judgment passed by the trial Court was set aside and the matter was remanded to the trial Court. The said Division Bench of this Court has observed in its judgment as under: "We also notice another serious illegality committed by the learned trial Judge. The learned trial Judge while examining the accused under Section 313 of Cr.P.C. has not questioned them with reference to the evidence of witnesses who have supported the case of the prosecution and have given incriminating evidence against the accused." After the remand, again the case was tried and the judgment and order was passed by the trial Court, which is challenged in these three appeals. 11. Perusing the prosecution materials and the evidence of prosecution witnesses, it is clear that the allegation of the complainant is that at the time of marriage talks the accused demanded dowry amount and accordingly, dowry amount was paid to the accused and after marriage also accused was giving ill-treatment and harassment to the deceased in connection with further dowry amount. Another contention of the prosecution is that accused No.1 was having illicit connection with one Deepa and he wanted to marry her and for that he was asking the deceased to give her consent and when she refused, he started giving ill-treatment and harassment to her and accused Nos.2 and 3 were instigating accused No.1. 12. In this regard, let us examine the material with regard to illicit relationship of accused No.1 with Deepa of Chelur village. 12. In this regard, let us examine the material with regard to illicit relationship of accused No.1 with Deepa of Chelur village. The complaint was lodged by P.W.1 Muniyappa, the father of Anjinamma, which is marked at Ex.P 1 wherein it is stated that one Ashwathamma was working in Chelur Government Hospital and she was having a daughter by name Deepa and son by name Umeshkumar; there is illicit relationship between accused No.1 and said Deepa the daughter of Ashwathamma which has continued for 8- 10 months prior to the incident in question; accused No. 1 wanted to have second marriage with said Deepa and in that connection, he was giving ill-treatment to deceased Anjinamma insisting her to give consent for the second marriage and Anjinamma told before the complainant about the said illicit relationship. 13. The complainant in his oral evidence has also deposed that accused No. 1 started to reside at Nallaguntlapalli and thereafter, deceased Anjinamma was telling before the complainant that her husband was often visiting the house of Ashwathamma at Chelur village and she is having suspicion against accused No.1 that he was trying to have second marriage with the daughter of said Ashwathamma. The name of daughter of Ashwathamma may be Deepa. He has further deposed that he had consoled his daughter and asked her to lead happy marital life with her husband. In the cross-examination though it was suggested to P.W. 1 that accused No. 1 was not having illicit relationship with Deepa, he denied the said suggestion and also the further suggestion that since he lodged false complaint against Deepa, Ashwathamma and Umesh, they committed suicide by hanging themselves. But he has admitted as true that all the three have strangulated themselves. 14. P.W.2 who is the mother of the deceased has deposed in her evidence in the examination-in-chief that accused No. 1 was going to the house of Deepa of Chelur village very often and he was threatening her daughter stating that he will marry the daughter of Ashwathamma. Deceased Anjinamma had also told before her that her husband went out of the house for 2-3 days and thereafter, he came back. Deceased Anjinamma had also told before her that her husband went out of the house for 2-3 days and thereafter, he came back. It is also deposed by P.W.2 that accused No.1 was going to the house of Deepa at Chelur village often from Nallaguntlapalli and he was having illicit connection with the said Deepa and her daughter told about the same before her. Absolutely there is no cross-examination of P.W.2 on her evidence that accused No. 1 was having illicit relationship with Deepa and she came to know about the said fact from her daughter. 15. P.W.3, brother of deceased Anjinamma also deposed in his examination-in-chief that accused No. 1 often used to go to the house of Deepa of Chelur village and they were told by Anjinamma that accused No. 1 was having illicit connection with said Deepa. They used to console Anjinamma and send her to her husband’s house. He has further deposed that in order to have second marriage with Deepa, accused No.1 committed murder of Anjinamma. There is no serious cross-examination of P.W.3 also about his deposition regarding illicit relationship of accused No. 1 with Deepa as told by Anjinamma. 16. P.W.4 Adinarayanappa has denied the suggestion of the learned counsel for the accused that he has not stated in his statement before the police about the facts that whenever Anjinamma used to come to her sister’s house, she told before him that her husband was having illicit connection with Deepa of Chelur village. 17. P.W.5 Suryanarayana has deposed in his evidence in the examination-in-chief that Anjinamma told before him that accused No. 1 was having illicit connection with one Deepa of Chelur village. So far as the deposition of P.W.5 is concerned, even in the evidence of P.W.31, the Investigating Officer, it is not elicited that P.W.5 has not at all stated before the Investigating Officer about the said facts. Therefore, the evidence of P.W.5 Suryanarayana that deceased Anjinamma told before him about the illicit relationship between accused No.1 and Deepa remains uncontroverted. 18. P.W.7 Ramesh Babu, the President of Goolur Gram Panchayath has also deposed in his evidence that Anjinamma told before him that accused No.1 was having illicit connection with one lady of Chelur village. 19. Therefore, the evidence of P.W.5 Suryanarayana that deceased Anjinamma told before him about the illicit relationship between accused No.1 and Deepa remains uncontroverted. 18. P.W.7 Ramesh Babu, the President of Goolur Gram Panchayath has also deposed in his evidence that Anjinamma told before him that accused No.1 was having illicit connection with one lady of Chelur village. 19. P.W.8 Basavaraju has deposed in his evidence in the examination-in-chief that Anjinamma whenever used to come to his village, she was telling that the family members of her husband were giving ill-treatment to her. She also told before him that her husband is having illicit connection with one lady of Chelur village. He has further deposed that Anjinamma also told that the name of that lady is Deepa and four months earlier to the death of Anjinamma they told a panchayath in the office of Circle Inspector at that time, himself, P.W.7 Ramesh Babu, P.W.9 Ramappa, P.W. 10 Bhasker Reddy and the accused persons and complainant Muniyappa were present, at that time, they all advised accused No.1 not to have such illicit connection since he is an educated person and they also asked him to treat Anjinamma properly. There afterwards, accused No.1 took Anjinamma to his village. During the course of cross-examination, he denied the suggestion that he has not stated in his statement before the police that Anjinamma told before him about accused No.1 was having illicit connection with Deepa. 20. P.W. 10 Bhaskar Reddy has deposed in his evidence in the examination-in-chief that he came to know from complainant Muniyappa that accused No. 1 was having illicit relationship with one Deepa of Chelur village. The complainant also told before him that there is ill-treatment to Anjinamma from her husband’s family. Therefore, they held panchayath in the office of Circle Inspector at Bagepalli, at that time, himself, P.W.6 Nanjun-dappa, P.W.7 Ramesh Babu, P.W.8 Basavaraju, P.W.9 Ramappa, Muniyappa, the complainant, Anjinamma deceased and accused Nos. 1 to 3 were present. Anjinamma and complainant Muniyappa told before them that accused No. 1 is having illicit connection with one lady of Chelur village. They all advised accused No. 1 and thereafter-wards, accused No.1 took Anjinamma to his village. 1 to 3 were present. Anjinamma and complainant Muniyappa told before them that accused No. 1 is having illicit connection with one lady of Chelur village. They all advised accused No. 1 and thereafter-wards, accused No.1 took Anjinamma to his village. In the cross-examination though it was suggested to this witness that complainant Muniyappa has not at all told anything before him and they have not at all held the panchayath in the office of the Circle inspector, the same was denied. He denied the suggestion that he has not stated in his statement before the police about these facts. 21. P.W. 16 (Nanjundappa) is the Sub-Inspector of Bagepalli police station. He has deposed in his evidence in the examination-in-chief that in the year 2002. he served as Sub-Inspector of Chelur police station. On 16.1.2002 Muniyappa (complainant) appeared before him in the police station and told that his son-in-law is giving ill-treatment to his daughter. Then he called accused No.1 to the police station and enquired him and he advised him. He registered the complaint of Muniyappa as NCR No.4/2002. He has further deposed that Muniyappa gave the complaint alleging that his son-in-law Prakash Babu is having illicit connection with another lady and hence, he advised accused No. 1 Prakash Babu to treat his wife properly. This witness was not cross-examined by the defence. 22. P.W. 17 (Jayakumar) is the witness for inquest mahazar (Ex.P.5). He has deposed that about one year back, the police called him to Chelur hospital and the dead body of Anjinamma was there. Police wrote the inquest mahazar in the presence of the Tahsildar. There was ligature mark of the rope on the neck of Anjinamma. He signed as per Ex.P.5(b). 23. P.W. 18 (Ramappa) has deposed in his evidence in examination-in-chief that he is the native of Nallaguntlapalli and he knows the accused. Accused No. 1 was staying along with Anjinamma in Nallaguntlapalli and he was looking after the deceased properly. About eight months back, Anjinamma expired. But he does not know as to who was responsible for her death. This witness was treated as hostile and when cross-examined by the public prosecutor, he has deposed that he has not given the statement before the police as per Ex.P. 11. Nothing has been elicited from his mouth to believe the case of prosecution. 24. But he does not know as to who was responsible for her death. This witness was treated as hostile and when cross-examined by the public prosecutor, he has deposed that he has not given the statement before the police as per Ex.P. 11. Nothing has been elicited from his mouth to believe the case of prosecution. 24. P.W. 19 (Venkataramappa) has deposed in his evidence in examination-in-chief that he knows the accused so also the deceased Anjinamma. The accused looked after Anjinamma properly for one year. P.W. 1 and Anjinamma told before him about the accused giving ill-treatment to Anjinamma insisting her to bring the amount from her parental place. In the cross-examination, P.W. 19 has denied the suggestion that he has not stated before the Tahsildar about the ill-treatment given by the accused to Anjinamma. 25. P.W.20 (Nanjundappa) is the witness for mahazar Ex.P.2 for the seizure of clothes of the deceased Anjinamma in the office of the Tahsildar. He has signed Ex.P.2 as per P.2(c). M.Os.2 to 4 are the clothes of the deceased Anjinamma. He further deposed that after seeing the house of the accused at Nallaguntlapalli, mahazar was prepared as per Ex.P.3 and one plastic rope was seized from the said house and it is M.O.1. He signed Ex.P.3 as per Ex.P.3(b). 26. P.W.21 (K.N. Narayanappa) is the Tahsildar. He has deposed in his evidence that on 21.8.2004 as per the request of Chelur police, he conducted inquest mahazar proceedings over the dead body of Anjinamma as per Ex.P.5 and Ex.P.5(c) is his signature. At that time, he recorded the statement of witnesses Sakamma (P.W.2), Govindappa (P.W.3), Ramappa (P.W.9), Suryanarayana (P.W.5), Venkataramappa (P.W. 19). From the stud statement, he came to know that the death of Anjinamma is because of the dowry demand and also because of accused No. 1 was having illicit connection. On the same day, the clothes over the dead body of Anjinamma were seized under the mahazar Ex.P.2 and Ex.P.2(b) is his signature. In the cross-examination by the learned counsel for the accused, he admitted as true that Sakamma (P.W.2) has not stated before him that at the time of the marriage talks, Rs. 15,000/- was paid to P.W. 19. He has also deposed and admitted as true that there is no statement by the witness about the accused demanding 12 tolas of gold. 15,000/- was paid to P.W. 19. He has also deposed and admitted as true that there is no statement by the witness about the accused demanding 12 tolas of gold. He admitted as true that witness Govindappa has not stated about the demand of Rs.25,000/- of dowry and 12 tola of gold by the accused from P.W.1. He has further deposed and admitted as true that P.W. 19 has not stated before him that accused were ill-treating Anjinamma. 27. P.W.22 (Anjinappa) has deposed that he does not know Ashwathamma and Deepa of Chelur village. He turned hostile. When cross-examined by the Public Prosecutor, he denied the suggestion that he has given the statement as per Ex.P. 12. 28. P.W.23 (Anjaneyalu) has deposed in his evidence that he is having two houses at Nallaguntlapalli and in one house, his mother was staying and in another house, accused No. 1 (Prakash Babu) was staying along with his wife and children, and one month after the death of his wife, accused No.1 vacated the said house. 29. P.W.24 (Sanathkumar) has deposed in his evidence that about eight years back, the marriage of Prakash Babu and Anjinamma was performed as per the Hindu customs and rituals in front of Anjaneya swamy temple. 30. P. W.25 (Mallikarjun) is the police constable. He has deposed in his evidence that on 21.8.2004 as per the direction of the Circle Inspector, he went to Chelur Hospital and kept watch on the dead body of Anjinamma and after P.M. examination, he handed over the dead body to P.W.1 (Muniyappa) and he brought and produced the clothes and the ornaments of the deceased Anjinamma before the Sub-Inspector and gave his report. 31. P.W.26 (B.P. Heraje), who was the Sub-Inspector has deposed in his evidence that on 23.8.2004, he took up the charge of investigation from Sri. Ramamurthy and he verified the investigation done so far. He deputed his staff to apprehend accused Nos.2 and 3 and on 31.8.2004, he handed over the further investigation to the Bengaluru COD office. 32. P.W.27 (M.Ramamurthy), the Sub-Inspector, has deposed in his evidence that on 21.8.2004 at 12.00 noon, the complainant Muniyappa came to the police station and handed over the complaint. It is Ex.P.1 and the signature of the complainant is Ex.P. 1 (a). 32. P.W.27 (M.Ramamurthy), the Sub-Inspector, has deposed in his evidence that on 21.8.2004 at 12.00 noon, the complainant Muniyappa came to the police station and handed over the complaint. It is Ex.P.1 and the signature of the complainant is Ex.P. 1 (a). He received and registered it and he has also signed as per Ex.P. 1(b) and he sent the FIR (Ex.P. 13) to the Court. He sent requisition to Tahsildar to conduct the inquest panchanama. He secured panchas at Nallaguntlapalli and conducted spot mahazar as per Ex.P.3 and Ex.P.3(a) is his signature and he seized M.O.1 (rope). In the cross-examination by the learned counsel for the accused, he has deposed that he has not mentioned the measurement of the cot. He has also not mentioned as to what is the height of the cot from the floor. So also he has not mentioned the distance from the floor to the fan. He has further admitted as true that in the mahazar, he has not mentioned about the seizure of the rope. 33. P.W.28 (K.G. Venktaramanappa) has deposed in his evidence that he does not know with whom accused No. 1 (Prakash Babu) was having illicit connection. He has not given statement before the police. He has not seen Anjinamma, the wife of accused No.1. This witness was treated as hostile. When cross-examined by the Public Prosecutor, he denied the suggestion that he has given the statement before the police as per Ex.P. 15. 34. P.W.29 (Hyder Valli) has deposed in his evidence that he does not know with whom Prakash Babu was having illicit connection. He does not know as to what was the reason for the death of wife of Prakash Babu. He has not given the statement bet ore the police. This witness was also treated as hostile. In the cross examination by the Public Prosecutor, he denied the suggestion that he has given statement before the police as per Ex.P. 16. 35. P.W. 31 who is the investigating officer has deposed in his evidence in the cross-examination that from the investigation it has transpired to him that on the date of incident accused No.1 along with his elder son came in the private bus from Chelur village at about 8.15 p.m. and then he went to his house. 36. 35. P.W. 31 who is the investigating officer has deposed in his evidence in the cross-examination that from the investigation it has transpired to him that on the date of incident accused No.1 along with his elder son came in the private bus from Chelur village at about 8.15 p.m. and then he went to his house. 36. These materials placed on record, show that deceased Anjinamma before her death had told before her parents, brother and the independent witnesses (about whose evidence we have already made detailed reference above), regarding her husband having illicit connection with Deepa of Chelur village, who was the daughter of one Ashwathamma; deceased Anjinamma had also told before them that her husband was visiting the house of Deepa of tenly at Chelur village. The evidence of the Investigating Officer also shows that even on the date of the incident, accused No.1 came from Chelur village through private bus along with his elder son at about 8 15 p.m. and then he went to his house. It is no doubt true that so far as the allegation of prosecution that it is accused No.1 who committed the murder of Anjinamma by strangulating her with M.O.1 rope, there is no witness evidencing the said fact. The doctor (P.W. 30) has deposed in his examination-in-chief that he has seen M.O.1 plastic rope and has opined that there is no possibility of ligature mark on the neck of the deceased with the said M.O.1 rope. He has further deposed that the ligature marks are 2 cm. in width and M.O.1 is having only ½ cm. width. Therefore, some other rope which was having 2 cm. width might have been used to cause her death. Admittedly, there is no eyewitness to the incident. There are no clear circumstances also to prove the complicity of accused in the offence of murder. Under such circumstances, it cannot be said that prosecution has proved its case that accused No.1 has committed the murder of deceased Anjinamma with the help of rope M.O.1. Therefore, the trial Court has rightly disbelieved the story of the prosecution with regard to the alleged offence under Section 302 of IPC. Accordingly, it has to be held that deceased herself has committed suicide. 37. The incident has taken place in the residential house wherein accused No. 1 and deceased along with their two small children were residing. Therefore, the trial Court has rightly disbelieved the story of the prosecution with regard to the alleged offence under Section 302 of IPC. Accordingly, it has to be held that deceased herself has committed suicide. 37. The incident has taken place in the residential house wherein accused No. 1 and deceased along with their two small children were residing. The investigating officer has not examined and recorded the statements of the children of the deceased Anjinamma. Had he done so, probably, they could have assisted the Court in appreciating the case of the prosecution. Even if it is the case of suicide committed by Anjinamma, as suggested by the defence during the course of cross-examination of prosecution witnesses, greater responsibility and duty is cast on accused No. 1 to explain the circumstances under which Anjinamma has committed suicide. The incident has not taken place on a public road or some other place having the access of people. But it has taken place in the residential house. It was suggested to some of the witnesses by the defence that Anjinamma was insisting accused No.1 to come to her native place and to stay with her, as accused No.1 did not agree for the same, she has committed suicide. Another suggestion is also that she was disappointed in her life so she committed suicide. The deceased led marital life with accused No. 1 for a period of nearly 8 years and was having two children. The question as to what made her to become disappointed in her life at that stage to take the extreme step of putting an end to her life, has to be explained by accused No. 1 because he is the proper person to disclose about the same. It is not the defence of the accused that she was suffering from any severe illness that created untolerable pain to her and because of that reason she has committed suicide. Even looking to the examination of the accused No. 1 under Section 313 of Cr.P.C. wherein opportunity was given to him to explain with regard to the incident, he has not explained the circumstances under which the said incident has taken place and has simply stated that he has not ill-treated and has not caused her death. Even looking to the examination of the accused No. 1 under Section 313 of Cr.P.C. wherein opportunity was given to him to explain with regard to the incident, he has not explained the circumstances under which the said incident has taken place and has simply stated that he has not ill-treated and has not caused her death. The evidence of the prosecution witnesses also shows that after lodging the complaint, Deepa (alleged paramour of the accused), her mother Ashwathamma and Umeshkumar (the brother of Deepa), all the three have committed suicide. There was a panchayath in connection with the illicit relationship of accused No.1 with Deepa. P.W. 16 has also deposed that he called accused No.1 to the police station and advised him in that regard and asked him to treat Anjinamma properly. Considering these materials, we are of the opinion that prosecution was able to establish that accused No.1 was having illicit connection with Deepa of Chelur village and consequently he was ill-treating the deceased Anjinamma both men tally and physically and he abetted commission of suicide by Anjinamma in her house. But so far as accused Nos.2 and 3 are concerned, the materials show that accused No.1 and his wife Anjinamma were residing separately i.e., in another village since three months prior to the incident. Though it is the allegation that accused Nos. 2 and 3 were instigating accused No. 1 in committing the alleged offences, there is no satisfactory material placed by the prosecution about the role of accused Nos. 2 and 3. 38. We have also perused the decisions relied upon by learned counsel appearing for appellant accused No.1 which are referred above. The facts and circumstances in those reported decisions and the facts and circumstances in the case on hand are not one and the same. In the evidence of the prosecution witnesses in the case on hand, we have discussed and came to the conclusion that it is accused No.1 who was having illicit connection with Deepa of Chelur village and for that reason also, there was cruel treatment to the deceased. Hence, the decisions relied upon by the learned counsel for the appellant accused No.1 will not come to the aid and assistance of the defence of accused No.1. 39. It is no doubt true that the charge against accused No. 1 was for the offence under Section 302 of IPC. Hence, the decisions relied upon by the learned counsel for the appellant accused No.1 will not come to the aid and assistance of the defence of accused No.1. 39. It is no doubt true that the charge against accused No. 1 was for the offence under Section 302 of IPC. When the said charge is not established by the prosecution and as the lesser offence under Section 306 of IPC has been established by the prosecution, the Court can convict the accused for the lesser offence. In this connection, we are referring to Section 221 of the Cr.P.C. which reads as under: 221. Where it is doubtful what offence has been committed - (i) If a single act or series of acts is of such a nature that it is doubtful which of several offence the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. 40. We are of the clear opinion that prosecution has established the case that accused No. 1 has committed the offence under Section 306 of IPC i.e., abetting the commission of suicide and that the prosecution was able to establish its case that accused No.1 has committed the offence under Sections 498A and 306 of IPC. 41. Now coming to the case of prosecution that, the accused demanded and accepted the dowry amount from the parents of the deceased and that, they had also demanded additional dowry amount insisting the deceased to bring the said additional dowry amount, and in that connection also, they were ill-treating and harassing the deceased both physically and mentally, we have examined the material placed before the trial Court. P.W.1 (Muniyappa), the father of the deceased Anjinamma, lodged the complaint as per Ex.P 1. P.W.1 (Muniyappa), the father of the deceased Anjinamma, lodged the complaint as per Ex.P 1. Though it is stated that at the time of marriage, Rs.25,000/- cash was given as dowry, (so far as Rs.25,000/- is concerned), it is not mentioned in the complaint (Ex.P1) that the accused demanded and accepted the said amount. In (he complaint (Ex.P1), it is also mentioned that one year earlier to the incident, the accused were insisting the deceased to bring Rs.50,000/- additional dowry amount. The oral evidence of P.W.1 is altogether different from the averments made in Ex.P1 (complaint). P.W. 1 has deposed that accused Nos.2 and 3 demanded the dowry of Rs.25,000/- and 15 tolas of gold for their son i.e. accused No.1, and he has paid Rs. 15,000/- cash and agreed to give the gold ornaments. He has also mentioned that immediately after the marriage talks, he gave Rs.50,000/- to accused No.2; that the accused treated the deceased properly for about one year; that there afterwards, accused No. 1 was employed as teacher; the deceased told her father (P.W 1) that the accused wanted to purchase something and hence, he gave Rs. 10,000/- to his daughter. He has further deposed that accused Nos.1 to 3 insisted the deceased to bring Rs. 10,000/-; accordingly, on the request of the deceased Anjinamma, he gave Rs. 10,000/-; accused No.1 sent Anjanamma to her native place insisting her to bring Rs.50,000/-; one year prior to the death of the deceased, P.W. 1 went to Chelur police station and gave complaint against the accused and the police called Anjinamma and accused No.1 and advised them. PW.1 has further deposed that six months thereafter, accused No. 1 made galata insisting the deceased to bring the amount; he secured the people namely Bhaskar Reddy, Basavaraju. Ramesh Babu, Sharma Swamy and the Circle Inspector as panchayatdars and held the panchayath; at that time, accused No.1 demanded motor cycle; the panchayatdars also told him to give Rs. 15,000/- to purchase the motor-cycle; PW. 1 told that he will give the amount and alter three days, he gave the amount of Rs. 15,000/- into the hands of the deceased, with the said amount, she went to the husband's house. In the cross-examination, PW. 1 has denied the suggestion that, he has not mentioned in Ex.P1 that on the date of marriage talks, he gave Rs. 15,000/- into the hands of the deceased, with the said amount, she went to the husband's house. In the cross-examination, PW. 1 has denied the suggestion that, he has not mentioned in Ex.P1 that on the date of marriage talks, he gave Rs. 15,000/- into the hands of accused No.2. So also he has denied the suggestion that in the complaint (Ex.P 1), he has not mentioned that the accused demanded Rs.25,000/- and 15 tolas of gold as dowry. He admitted as true that before the police, he has stated that on the day of marriage, he gave the gold necklace, a pair of ear studs (olay), jumka, mangalya chain to his daughter and one gold ring to accused No. 1. He denied the suggestion that accused never insisted his daughter to bring the cash and the ornaments. 42. P.W.2 (Sakamma), who is the mother of the deceased, has deposed in her evidence in the examination-in-chief that one month earlier to the marriage of her daughter, Nanjundappa (P.W. 6) Adinarayanappa (P.W.4), Suryanarayana (P.W.5), accused Nos. 1 to 3 and their relatives, and her relatives gathered in her house; at that time, accused Nos. 1 to 3 and the people of their side, demanded Rs.25,000/- dowry and they also demanded 12 tolas of gold; the parents of deceased agreed to give Rs. 15,000/- and also the gold ornaments according to their convenience; on the day of talks itself, in the evening, they gave Rs. 15,000/- into the hands of accused No.2; they gave all the articles to the accused which they were supposed to give as per their custom; the accused treated the deceased properly for one year; after the deceased Anjinamma gave birth to one child, the accused started giving ill-treatment to her. P.W. 2 has further deposed that she does not know as to for what reason the accused were assaulting the deceased. After accused No.1 got appointment as a teacher, the accused were telling that there were the people to give Rs.2.00 lakh to accused No.1; stating so, the accused were insisting the deceased to go to her parental place; panchayath was held in Bagepalli police station but she (P.W.2) was not present in the said panchayath. After accused No.1 got appointment as a teacher, the accused were telling that there were the people to give Rs.2.00 lakh to accused No.1; stating so, the accused were insisting the deceased to go to her parental place; panchayath was held in Bagepalli police station but she (P.W.2) was not present in the said panchayath. In the cross-examination, P.W.2 has deposed and admitted that in her statement before the police and the Tahsildar, she has not stated that the accused and the people on the side of the accused demanded Rs.25,000/- and 12 tolas of gold. She has also admitted as true that she has not stated that they agreed to give Rs. 15,000/- and the gold ornaments to the accused. She has further admitted as true that she has not stated that on that day evening, they paid Rs. 15,000/- to the accused. She has further admitted as true that after accused No. 1 went to Nallagundapalli, he treated her daughter properly. 43. P.W.3 (Govindappa), who is the brother of the deceased, has deposed in his evidence in the examination-in-chief that the accused and the people on the side of the accused demanded Rs.25,000/- and also the gold ornaments; the elders decided and asked them to give Rs. 15,000/- and also the ornaments whatever it was possible for them; on the same day, his father gave Rs. 15,000/- to accused No.2. For one year, the accused treated the deceased properly and thereafter, accused No.1 started to insist the deceased to bring the amount from her parental place and started to make galata in that regard; the accused was telling the deceased that she has to bring the amount, otherwise, she should not stay in their house; accused Nos. 2 and 3 were instigating accused No.1. In the cross-examination, P.W.3 has admitted as true that in his statement before the Tahsildar (during inquest), he has not stated that the accused and the people on the side of the accused demanded Rs.25,000/- and the gold ornaments. He has further admitted as true that he has not stated before the Tahsildar that the elders told them to give Rs. 15.000/- and accordingly, on the same day, they gave Rs. 15,000/- to accused No.2. 44. He has further admitted as true that he has not stated before the Tahsildar that the elders told them to give Rs. 15.000/- and accordingly, on the same day, they gave Rs. 15,000/- to accused No.2. 44. PW.4 (Adinarayanappa) has deposed in his evidence in the examination-in-chief that about eight years back, marriage talks were held at Mardanakunte; one month earlier to the date of marriage, the marriage talks look place in the house of PW.1. He has further deposed that himself, Suryanarayana, Nanjundappa, accused Nos.1 to 3 and their relatives, P.W.1 (Muniyappa) and his wife Sakamma (PW.2), (Govindappa-PW.3) the son of Muniyappa and the relatives of Muniyappa were present; the accused demanded the dowry of Rs.25,000/- and PW.1 (Muniyappa) agreed to give Rs. 15,000/- and also the gold ornaments; on the same day. Muniyappa paid Rs. 15,000/- cash into the hands of accused Nos.1 and 2. PW.4 has further deposed that after the marriage, the accused treated the deceased properly for one year and there afterwards, they insisted the deceased to bring Rs.50,000/- from her parental place; the deceased Anjanatnma used to tell about the same. In the cross-examination, RW.4 has deposed that in the said marriage talks, they (the elders) decided as to how both the sides have to conduct the marriage. As per their decision, the accused and P.W.1 proceeded further. He has admitted as true that he has not stated before the police in his statement about the fact that the accused insisted the deceased to bring Rs.50,000/- and Anjinamma told the same before him. 45. RW.5 (Suryanarayana) has deposed in his evidence in the examination-in-chief that the marriage talks took place in the house of P.W. 1 (Muniyappa); accused Nos.2 and 3 (i.e., parents of accused No.1) demanded Rs.25,000/- dowry; P.W. 1 (Muniyappa) agreed to give Rs. 15,000/- and the elders assembled there told the accused to receive Rs. 15,000/-; for that, the accused agreed, and on the same day, P.W. 1 gave Rs. 15,000/- to accused Nos.2 and 3; one year thereafter, accused No.1 was employed as a teacher. Accused treated the deceased properly for one year and there afterwards, they started to give ill-treatment to the deceased Anjinamma suiting that the dowry' amount they have given is not sufficient and they were insisting her to bring additional dowry amount. 15,000/- to accused Nos.2 and 3; one year thereafter, accused No.1 was employed as a teacher. Accused treated the deceased properly for one year and there afterwards, they started to give ill-treatment to the deceased Anjinamma suiting that the dowry' amount they have given is not sufficient and they were insisting her to bring additional dowry amount. In the cross-examination, P.W.5 has denied the suggestion that in his statement before the Tahsildar, he has not stated about the facts that on the same day, Muniyappa paid Rs. 15,000/- to accused Nos.2 and 3. He has denied the suggestion that in his statement before the Tahsildar, he has not stated that the father of the deceased gave Rs. 15,000/- to the son-in-law for purchasing the motor cycle, as per Ex.D.3. 46. P.W.6 (Nanjundappa) has deposed in his evidence in the examination-in-chief that one month earlier to the marriage, the marriage talks took place in the house of P.W. 1 Muniyappa; himself, Suryanarayana, Adinarayanappa, Muniyappa, Sakamma and their relatives, accused Nos.1 to 3 and their relatives, were present; accused No.2 demanded Rs.50,000/- dowry; but, P.W.1 Muniyappa told that it would not be possible for him to pay that much amount and that he will give Rs. 10,000/-; all the elders told Muniyappa to give Rs. 15,000/- for which Muniyappa agreed so also the accused agreed; on the same day, Muniyappa gave the amount to the accused. In the cross examination by advocate for the accused, P.W.6 has admitted as true that in his statement before the police, he has not stated that accused No.2 demanded Rs. 15,000/- dowry. 47. Looking to the evidence of P.Ws. 1 to 6 regarding the demand anti acceptance of dowry amount so also the harassment and cruel treatment meted out to the deceased by accused Nos.1 to 3 in connection with the dowry amount, the evidence of prosecution witnesses is not consistent, cogent and worth believable. The evidence of P.W.6 is quite contrary to the evidence of P.Ws.1 to 5. PW.6 has deposed that the accused demanded Rs.50,000/- as dowry, whereas the other witnesses have deposed that the accused demanded Rs.25,000/-as dowry. In the complaint at Ex.P.1, there is no mention that the accused had demanded Rs.25,000/- as dowry from P.W.1. The evidence of P.W.6 is quite contrary to the evidence of P.Ws.1 to 5. PW.6 has deposed that the accused demanded Rs.50,000/- as dowry, whereas the other witnesses have deposed that the accused demanded Rs.25,000/-as dowry. In the complaint at Ex.P.1, there is no mention that the accused had demanded Rs.25,000/- as dowry from P.W.1. The prosecution witnesses have also admitted during the course of cross-examination that they have not stated before the Tahsildar (during inquest) about the accused demanding the dowry amount from P.W.1. 48. P.W.31 (Police Inspector), in the cross-examination on page No.3 of his deposition, has admitted as true that he secured the file and perused the FIR, and there was no mention in the FIR about the accused demanding the dowry amount. Considering these aspects of the matter, it is clear that the prosecution was not able to establish its case by cogent and satisfactory material about the accused demanding and accepting the dowry amount. The trial Court has not at all properly appreciated these materials and it has wrongly read the evidence so far as the demand and acceptance of dowry amount by the accused and wrongly convicted accused No.1 for the offence under Section 3 of the Dowry' Prohibition Act. The materials in this regard make it clear that there are contradictions and omissions about the demand and acceptance of dowry amount by the accused. There is no consistency in the evidence of prosecution witnesses. Hence, the evidence of P.Ws. 1 to 6 is not worth believable so far as the demand and acceptance of dowry amount. The prosecution has not established its case beyond reasonable doubt so far as the demand and acceptance of dowry amount is concerned. Accordingly, we set aside the judgment and order of conviction dated 05.01.2012 passed by the trial Court as against accused No.1 for the offence under Section 3 of the Dowry Prohibition Act. 49. In view of the above discussion, we proceed to pass the following order: (a) Cri. A. No. 126/2012 filed by accused No. 1 is partly allowed, i.e. only in respect of the offence under Section 3 of the Dowry Prohibition Act and he is acquitted of the said offence. The judgment and order of conviction passed by the trial Court in that regard is hereby set aside. A. No. 126/2012 filed by accused No. 1 is partly allowed, i.e. only in respect of the offence under Section 3 of the Dowry Prohibition Act and he is acquitted of the said offence. The judgment and order of conviction passed by the trial Court in that regard is hereby set aside. The said appeal by accused No. 1 in respect of challenging his conviction for the offence under Section 498A of IPC is dismissed. The sentence imposed by the trial Court on accused No. 1 for the offence under Section 498A of IPC is just and reasonable. Hence, the sentence imposed by the trial Court for the said offence remains undisturbed. (b) The appeal preferred by the State in Cri. A. No.656/2012 seeking enhancement of the sentence in respect of accused No.1 for the offences punishable under Section 3 of Dowry Prohibition Act and Section 498A of IPC is dismissed. (c) The appeal preferred by the State in Cri. A. No.655/2012 is partly allowed. The judgment and order of acquittal of accused Nos. 2 and 3 is hereby confirmed. The judgment and order of acquittal of accused No. 1 for the offence under Section 302 of IPC is hereby set aside and it is modified holding that accused No. 1 is guilty of the offence under Section 306 of IPC. Accordingly, accused No. 1 is convicted for the offence punishable under Section 306 of IPC and he is sentenced to undergo rigorous imprisonment four years and to pay a fine of Rs.50,000/- Out of the said amount, Rs.45.000/- be paid to P.W. 1 (Muniyappa-the father of deceased) as compensation and Rs.5,000/- has to be remitted to the State. (d) The above sentences as against the appellant accused No. 1 shall run concurrently. (e) The appellant-accused No.1 is entitled to the right of set off as provided under Section 428 of Cr.P.C. for the custody period which he has already undergone.