IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL No. 723/2012 BETWEEN:
K.Puttanna Alias Puttaraju, S/o Lokappa, 26 years, Forest Guard, Sharavathi Wild Life Range, R/o Samanavalli Village, Gollara Tanda, Soraba Taluk, Shimoga District.
(By Shri.S.B.Pavin, Advocate) AND:
1. The State of Karnataka, By Anavatti Police, Shimoga District.
2. Smt. Chaithra, 25 years, D/o Nagaraj, R/o Samanavalli Village, Gollara Tanda, Soraba Taluk, Shimoga District.
(By Shri.Divakar Maddur, HCGP for R1, Shri. S.S.Haveri, Adv. for R2) …Appellant …Respondents.
This Criminal Appeal is filed u/s. 374(2) Cr.P.C., to set aside the conviction and sentence passed by the Sessions Judge, I Fast Track Court, Shimoga, dated 24/06/2012 in C.C. No.28/2012 for the offence punishable under Sections. 313 and 498-A of IPC etc.
This appeal coming on for hearing this day, the Court delivered the following;
JUDGMENT This criminal appeal is filed by accused No.1 challenging the judgment and order of conviction and sentence passed in S.C.No.28/2012 on the file of the Court of Sessions Judge, I Fast Track Court, Shimoga, wherein he is convicted for the offence punishable under Section 313 of IPC and sentenced to undergo simple imprisonment for five years and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for one year. Further, convicted for the offence under Section 498-A of IPC and sentenced to undergo simple imprisonment for three years and to pay fine of Rs.5,000/- and in default to pay fine, to undergo simple imprisonment for six months.
2. I have heard Sri. S.B.Pavin, learned counsel appearing for the appellant/accused, the learned HCGP Sri. Divakar Maddur, for respondent No.1 and Sri. S.S.Haveri, learned counsel appearing for respondent No.2/complainant (P.W.1).
3. The case of the prosecution in brief is that, while P.W.1/complainant was studying in Nrupathunga School at Anavatti, the accused came in contact with her and thereafter developed an intimacy and started telling her that he will marry her. The parents of P.W.1 did not agree for the marriage. After getting a job as a Forest Guard, the accused took P.W.1 to Sigandoor Chowdeshwari Temple on 15/04/2008 and married her in the presence of the temple priest and others. After the marriage, he left P.W.1 at her parents house in Samanavalli village. Thereafter, he started visiting her. It is the further case of the prosecution that when P.W.1 became three months pregnant and when she informed the same to accused No.1, he gave her some tablets and forced her to take the said tablets, due to which, there was miscarriage. Thereafter, he stopped visiting the complainant. A panchayath was held. After the panchayath, when the complainant tried to contact accused No.1 who was working at Nagavalli Check Post, he threatened her with dire consequences. Her mother-in-law, accused No.2 abused the complainant and also threatened her. Other accused persons supported accused No.1 and accused No.2 and at their instigation, accused No.1 and accused No.2 gave physical and mental harassment to the complainant.
4. On the basis of the complaint lodged by P.W.1, a case was registered in Crime No.3/2011 of Anavatti police station against accused Nos.1 to 8 and after completion of investigation, charge sheet was filed.
5. The trial Court framed charges against accused Nos.1 to 8 for the offence punishable under Sections. 498- A, 420, 313, 114, 504, 506 read with Section 34 of IPC.
6. Before the trial Court, the prosecution got examined P.W.1 to P.W.11 and got marked Ex.P1 to Ex.P7 and M.O.1 to M.O.3. The defence of the accused was one of total denial. However, he has not chosen to lead any evidence on his behalf.
7. The learned Sessions Judge considering the evidence and material on record, by judgment dated 25/06/2012 was pleased to acquit accused Nos.1 to 8 of the offences punishable under Sections. 420, 114, 504, 506 read with Section 34 of IPC, however, convicted accused No.1 for the offence punishable under Sections 313 and 498-A of IPC.
8. The learned counsel appearing for the appellant/accused contended that the complainant(victim) who is examined as P.W.1 has not at all stated about the harassment meted to her by the appellant/accused. Her evidence is not corroborated by any other witnesses. He submits that though it is stated by P.W.1 that accused gave some tablets to her and on consuming the said tablets, miscarriage took place, however, there is nothing on record that to show that the strip of tablets marked as M.O.1 to M.O.3 are seized from the accused. He submits that though the said incident is alleged to have been taken place in the year 2009, however, the strip of tablets which are marked as M.O.1 to M.O.3 came to be seized in the year 2011 from P.W.1 under Ex.P3. He submits that there is absolutely no legal evidence with regard to P.W.1 undergoing abortion. As per the evidence of P.W.1, one Dr.Sumathi treated her. However, the said doctor is not examined. He further submits that the evidence of P.W.10 does not show that P.W.1 has undergone abortion. Therefore, he submits that the trial Court was not justified in convicting the accused for the offence punishable under Sections. 313 and 498-A of IPC and seeks to allow the appeal.
9. Per contra, the learned HCGP contends that P.W.1 to P.W.3 have supported the case of prosecution and from their evidence it can be gathered that the accused was harassing P.W.1. He submits that P.W.1 has stated that accused gave some tablets and by consuming those tablets, there was miscarriage. He further submits that the tablet strip has been seized and marked as M.O.1 to M.O.3. He submits that the evidence on record clearly establishes that the accused married the victim/P.W.1 and thereafter he neglected her and driven her out of the house and therefore he submits that the trial Court was justified in convicting the accused and accordingly, seeks to dismiss the appeal.
10. The points that arise for my consideration are as under;
(i) Whether the prosecution has proved that the appellant/accused No.1 has committed offences punishable under Section 313 and 498-A of IPC beyond all reasonable doubt?
(ii) Whether the judgment and order passed by the trial Court requires interference?
(iii) What order?
11. It is pertinent to mention here that the trial Court after considering the evidence and material on record, has acquitted accused Nos.2 to 8 of all the charges levelled against them and there is no appeal preferred against the said order.
12. P.W.1 is the complainant. She has stated in her examination-in-chief that accused No.1 and herself belong to same caste. In the year 2008 when she was going to school, he started contacting her and requested her to marry him. When both accused Nos.1 and 2 requested her parents, her parents told them that since she was still young, they will look into the matter later. Thereafter, accused No.1 got a job in the Forest Department as Forest Guard. Again he requested her parents that he wish to marry P.W.1 and started visiting their house. On 12/04/2008 he took her to Sigandoor and married her. Thereafter, he started having physical contact with her. When she informed the same to her parents, her parents reprimanded her. When she became pregnant, she informed the same to accused No.1. He gave some tablets. When she consumed the said tablets, there was bleeding and she was taken to Kuppagadde hospital, where the doctors advised her to go to Sirsi. She has further stated that due to consumption of the tablets, there was miscarriage and thereafter she started staying in her parents house for about two months. The accused was visiting the house. When her parents came to know about abortion, they again reprimanded her. When she told accused No.1 that she will stay along with him, he left her with her parents. Thereafter, a panchayath was conducted. In the said panchayath, it was decided that both of them have to leave the village and also to pay fine. Thereafter she started living in the house of her parents.
13. P.W.1 has deposed that she subsequently lodged a complaint as per Ex.P1 and the police came to the village and conducted mahazar as per Ex.P.2 and Ex.P.3. She has further deposed that subsequently she again became pregnant and a male child was born on 20/04/2012 and after six months accused stopped visiting her and he demanded dowry.
14. In the cross-examination of P.W.1, it has been elicited that there is no record to show that she became pregnant in the first instance and she also does not know about the date and time of abortion. She has stated that she does not know the name of the doctor at Kuppagadde. Accused No.1 took her to Sirsi hospital and she was there about one week. One Doctor Sumathi was treating her. She has stated that she has the records regarding the same. Further stated that about 10 to 15 times panchayath was held and they paid fine. However, there is no document to show that fine was paid. Further stated that after lodging the complaint against accused No.1, he stopped visiting her parents house. She again became pregnant and gave birth to a male child on 20/4/2012.
15. P.W.2 is the mother of P.W.1. In her chief examination, she has corroborated the evidence of P.W.1 with regard to the marriage of accused No.1 and P.W.1.
She has stated that P.W.1 became pregnant and accused No.1 gave some tablets, on account of which there was abortion. She has stated that a panchayath was convened wherein they were asked to pay a fine of Rs.14,000/- each. The other accused persons quarreled with them and thereafter her daughter lodged a complaint. Again her daughter became pregnant and gave birth to a male child.
16. In the cross-examination, it has been elicited that when there was miscarriage, she was in Bengaluru. It is further elicited that even after the criminal case was filed, the accused was visiting their house. Accused persons had assaulted them, and they lodged the complaint.
17. P.W.3 is a relative of P.W.2. She has stated that they performed the marriage of P.W.1 with the accused. In the cross-examination, she has stated that there is no documents with regard to the marriage which was performed in the temple, but the marriage was performed by the priest.
18. P.W.4 was working as a driver in the Forest Department. His evidence is not helpful to the prosecution to prove either the harassment or regarding abortion.
19. P.W.5 is an administrator of Signandoor temple.
He has stated that on 15/04/2008 accused No.1 and P.W.1 had come to Chowdeshwari Temple and the marriage was performed at 12.30 p.m. He has issued a certificate as per Ex.P.4.
20. P.W.6 is the chief priest of the temple. He has stated that accused No.1 married P.W.1 on 15/04/2008 and in this regard a certificate was issued by P.W.5.
21. P.W.7 is one of the panchyathdar who has stated that on 26/05/2010 panchayath was conducted, wherein all the accused persons were present and both the parties paid fine of Rs.14,000/- each and when the accused persons objected, they advised them.
22. P.W.8 is another panchayathdar, who also attended the panchayath which took place on 26/05/2010.
He has stated that about 3 years prior in the Sigandoor temple the marriage of P.W.1 took place with accused No.1. Thereafter there was quarrel between them. In the panchayath, they told the parties to pay fine of Rs.14,000/- each and they all agreed for the decision taken in the panchayath. However, subsequently they did not agree for the decision.
23. P.W.9 is a panch witness to the mahazar Ex.P.2 under which a strip of tablets (M.O.1 to M.O.3) were seized from P.W.1.
24. P.W.10 is the medical officer who has issued certificate as per Ex.P.5 stating that M.O.1 to M.O.3, tablets are used for causing abortion.
25. P.W.11 is the investigating officer, who has registered the case, conducted investigation and filed charge sheet.
26. A careful perusal of the evidence of P.W.1 and P.W.2, goes to show that accused No.1 married P.W.1 in a temple. However, their evidence does not establish that the accused No.1 was causing harassment to P.W.1 either physically or mentally. According to P.W.1, when she became three months pregnant, accused gave some tablets and on consuming the said tablets there was miscarriage. However, there is absolutely no medical evidence to that effect and her evidence in this regard is not corroborated by any other evidence. Except her oral testimony there is no other material to show that in fact she had become pregnant and on consuming the tablets given by accused No.1, there was miscarriage. She has stated that she was taken to the hospital at Sirsi and there she was treated by one Dr.Sumathi. The evidence of the said doctor is not on record. There is absolutely no medical records/documents to hold that P.W.1 became pregnant in the first instance and that on account of consuming the tablets given by the accused, the pregnancy was terminated.
27. According to P.W.2, she was in Bengaluru at the time of abortion and that she was not knowing about the same. It is relevant to see that according to the prosecution, abortion took place in the year 2009, whereas M.O.1 to M.O.3, tablet strip, came to be seized from the possession of P.W.1 in the year 2011. Though P.W.10 has stated that those tablets (M.O.1 to M.O.3) are used for terminating pregnancy, P.W.10 has not given the name of the tablets and there is nothing to show that the said tablets were given by the accused in the year 2009 to P.W.1. Further, the tablets were also not seized at the instance of accused No.1.
28. P.W.1 and P.W.2 are the material witnesses to speak about the harassment and miscarriage caused by accused No.1. However, their evidence is not sufficient to hold that the accused had either physically or mentally harassed P.W.1 or caused miscarriage. P.W.1 has made a stray statement that accused No.1 demanded dowry and stopped visiting her. However, it is not stated as to what was the demand. The evidence of P.W.7 and P.W.8 are not sufficient to hold that the accused No.1 was giving cruelty to P.W.1 so as to attract the ingredients of Section 498-A of IPC. The evidence and material on record are not sufficient to hold that the appellant/accused is guilty of the offences punishable under sections 313 or 498-A of IPC.
29. The trial Court mainly relying on the evidence of P.W.1, P.W.10 and also on the evidence of P.W.9 and recovery of M.O.1 to M.O.3 has come to the conclusion that the accused has caused miscarriage. However, as discussed above, the evidence of the prosecution witnesses are not sufficient to establish the case of prosecution. The reasons assigned by the trial Court for convicting the accused No.1 are not in accordance with law. The prosecution has failed to prove the charges levelled against accused No.1 beyond all reasonable doubt. The points No.1 and 2 are answered accordingly.
30. Hence, I pass the following order;
i) The appeal is allowed.
ii) The judgment and order of conviction and sentence passed in S.C.No.28/2012 on the file of the Sessions Judge, I Fast Track Court, Shimoga, is hereby set aside.
iii) The accused/appellant is acquitted of the offences punishable under section 313 and 498 –A of IPC.
iv) Bail bonds if any, stands cancelled.
v) The trial Court is directed to return the fine amount if any paid by the accused.
I.A.1/19 does not survive for consider and the same is disposed off.
Sd/- JUDGE Msu