IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.163 of 2010 BETWEEN MANJUNATHA, S/O MUNISWAMY @ MUNISHAMAPPA, AGED ABOUT 30 YEARS, RESIDING AT CHAITHANYANAGARA, 15TH CROSS, DODDABALLAPURA.
(BY SRI D. MOHAN KUMAR, ADVOCATE Appointed as Amicus Curiae vide order dated 20/02/2019.
... APPELLANT SRI S.A. KHADRI and SRI B.N. SHIVANNA, ADV.,-absent) AND STATE BY DODDABALLAPURA TOWN POLICE, (REPRESENTED BY LEARNED SPP) ... RESPONDENT (BY SRI K.P. YOGANNA, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE/QUASH THE JUDGMENT DATED 21.01.2010 PASSED BY THE SESSIONS JUDGE, FTC-III, BANGALORE RURAL DISTRICT, BANGALORE IN S.C.No.52/2009 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A OF IPC AND THE APPELLANT/ACCUSED SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 2 YEARS AND TO PAY A FINE OF RS.10,000/-, IN DEFAULT TO PAY, FURTHER HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR FOUR MONTHS, FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING JUDGMENT The appellant is the sole accused in SC No.52/2009 on the file of the FTC III, Bengaluru Rural District wherein, the appellant has been found guilty and convicted for the offence punishable under Section 498A of IPC and sentenced to undergo imprisonment for two years and to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for four months vide judgment dated 21.01.2010. Being aggrieved by the said conviction and sentence, the appellant has preferred this appeal by challenging the correctness and legality of the judgment passed by the Trial Court on various grounds.
2. Before adverting to the arguments addressed by Sri D.Mohan Kumar, learned amicus curiae, appointed by this Court to argue on behalf of the appellant and learned High Court government Pleader, it is worth to mention the case of the prosecution as under;
The Doddaballapura Town Police filed charged sheet against the appellant/accused No.1 for the offence under Sections 498A and 307 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (‘Act’ for short) on the basis of the statement recorded by PW.6-Anjanappa, HC, in Victoria Hospital where, PW.3-Gowri, the complainant, gave her statement in the presence of the Doctor as per Ex.P.2 alleging that she has married the accused on 04.02.2007. At the time of marriage, her father gave Rs.2.00 lakhs cash and 30 sovereigns gold ornaments as dowry. After the marriage, she has resided along with her husband/accused, parents-in-law and brother-in-law. The husband/accused looked after her well for the first six months thereafter, started ill-treating her by not allowing her to sit on the Sofa and to watch TV and also did not provide food properly to her and insisted her to bring money from her parents. She used to inform to her parents about the ill-treatment. After the birth of the child, the accused and the victim resided in a separate house and even then the accused not stopped picking up quarrel. That on 04.10.2008, at about 7.30 in the evening, when she was in the house, her mother-in-law, father-in-law and brother-in-law came to her house and picked-up quarrel and the appellant/accused also joined them and started demanding dowry, for which, she told them that her father already gave sufficient cash and gold ornaments as dowry and therefore, she cannot bring any more dowry. Thereafter, the accused has threatened to kill her. The brother-in-law-Vishwanatha was holding kerosene in the Miranda bottle in his hand and poured on her and accused i.e her husband gave match stick to his mother and asked her to lit fire and accordingly, her mother-in-law lit fire and they went back. Thereafter, the husband took her to Hindupur Hospital and got admitted, where she stated that she caught fire due to stove burst because of the threat given by the husband, but in fact the accused poured kerosene on her and lit fire and attempted to kill her. As the basis of her statement the Police registered the case in Cr.No.142/2008 for the aforesaid offence thereafter, the accused was arrested by the Police and was sent to juridical custody and the Investigating Officer visited the spot, seized the bottle, the burnt cloth and match box from the house with the help of PWs.1 to 4 under the panchanama Ex.P.1. After recording the statement of the witnesses, PW.9 laid charge sheet against the accused for the offences under Sections 498A, 307 of IPC and Sections 3 & 4 of Dowry Prohibition Act, 1961.
3. The committal court after committing the case, a session case was registered and allotted to the FTC Court, which secured the presence of the accused and charges were framed against him. He has pleaded not guilty and on behalf of the prosecution, nine witnesses have been examined as PWs.1 to 9 and got marked Exs.P.1 to P.5 and marked material objects as MOs.1 to 3. Thereafter, the statement of the accused under Section 313 of Cr.P.C was recorded and the case of the accused was one of total denial. However, he has entered defence by examining own sister of the deceased Gayathri as DW.1 and after hearing the arguments, the learned Trial Judge acquitted the appellant for the offence under Section 307 of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961. But, found guilty and convicted the appellant for the offence under Section 498A of IPC and sentenced as stated above.
4. Sri D Mohan Kumar, learned amicus curiae, has appeared on behalf of the appellant and strenuously argued that though PW.2-Kavitha, the sister of PW.3, PW.3-Gowri and PW.5 were examined by the prosecution, except these three witnesses, there are no other independent witnesses examined by the prosecution or the Investigating Officer. Even otherwise there is lot of contradictions in the evidence of PW.3 made before PW.6 in the presence of the Doctor and the evidence lead before the Court. The Trial Court rightly acquitted the accused for the offence under Section 307 and Section 3 and 4 of the Act, but committed illegality in convicting the accused under Section 498A of IPC. Even though there is no material to show that the accused continuously ill-treated or harassed PW.3 even after shifting the house to Kongadiyappa College area. Even the Trial Court has not property appreciated the evidence on record and with the scanty evidence, the Trial Court convicted the appellant for the offence under Section 498A of IPC. The evidence of DW.1 was not properly considered and therefore, prayed for acquitting the appellant.
5. Per contra, learned High Court Government Pleader contended that the evidence of PW.3 corroborates with the evidence of PW.2-sister and PW.5, father of the victim. Even though the victim stated that the parents-in-law, brother-in-law and the appellant poured Kerosene lit fire, but the Investigating Officer not made them as accused and the Trial Court also not impleaded them as accused. However, there is evidence in respect of harassment and ill-treatment on PW.3 by the accused, which attracts Section 498A of IPC. Hence, there is no reason to disbelieve the evidence of PWs.2, 3 and 5, which also corroborates with the evidence of PW.6, the statement recorded by the Police Head Constable and the statement of the Doctor PW.7 and therefore, prayed for dismissal of the appeal.
6. Upon hearing the arguments, this Court is required to have a cursory look at the evidence of the prosecution witness adduced before the Trial Court, which is here under;
PW.1-Mallesh and PW.4-Nataraj were panch witness to the spot, where the Investigating Officer visited the spot after registration of the case and seized MOs.1 to 3 i.e., plastic bottle, half burnt clothes and match box on the spot under Ex.P.1, which is not at all controverted by the accused in the cross-examination and there is no dispute in respect of the house where PW.3 and accused were residing as on the date of the incident. Since, PW.3 survived after giving statement. Therefore, the spot panchanama has no much significance in this case.
PW.2-Kavitha is the elder sister of the victim. She speaks about the marriage of Gowri with the accused and giving Rs.2.00 lakhs cash and 30 sovereign of gold ornaments and the accused looked after PW.3 well for the first six months. Thereafter, started ill-treating her by demanding dowry and they have not allowed her to watch TV and sit on the Sofa. She also stated that later she received information that her sister was admitted to the Hospital due to pouring of kerosene and setting of fire by the parents-in-law and the accused i.e. the husband of her sister. Later, she identified the accused before the Court who is the husband of her sister. During the cross- examination, the evidence of this witness in respect of the harassment said to have been meted out by the victim in the hands of the accused has been denied. However, this witness admits that they have not lodged any complaint against the accused for having harassed her sister. She also admits that there is no document for having given money or gold ornaments at the time of marriage of her sister. However, she has stated that she has not seen her sister by going to the Hospital either to Victoria Hospital or the Hospital at Hindupur. However, she has stated that she was present when her sister gave statement to the Police.
PW.3, who is the victim, has supported the case and gave evidence by supporting her case as stated by her in the complaint made before PW.6. However, in the complaint she has stated that her brother-in-law poured kerosene and her mother-in-law lit fire, but in the examination-in-chief made before the Court, she has stated that her husband poured the kerosene and her mother-in-law lit fire. But she has not spoken anything about the brother of the accused i.e. Vishwanath. However, her evidence will be discussed a little later.
PW.5 is the father of the victim. He has also given evidence in the same line of is daughter, the victim. He speaks about the marriage and giving dowry of ornaments to the accused and the harassment said to have been given by the accused in the matrimonial home.
Thereafter, he made separate house for the accused and her daughter and thereafter, he got the information that his daughter was admitted to the hospital. Then, he has visited the hospital at Hindupur and shifted his daughter to the Victoria hospital, Bengaluru for treatment.
PW.6-HC attached to the Doddaballapur Police Station, who went to the Victoria Hospital in the presence of the Doctor, has recorded the statement of PW.3 as per Ex.P.2 and obtained the impression of the left leg finger as the complainant sustained burn injuries on both her hands. He has given evidence in support of the statement recorded by him in the hospital as per Ex.P.2.
PW.7-Dr. Ramesh is a Medical Officer attached to Victoria Hospital. He has deposed that he was present at the time of recording the statement by PW.6 and PW.3 gave statement before the Police in Telugu language. Since the Police and the Doctor knew Telugu and Kannada language, it was translated into Kannada language and he has stated as stated by PW.3.
PW.8 is the Police Constable, who apprehended the accused is not in dispute. PW.9 is the Investigating Officer who filed charge sheet.
7. On overall perusal of the evidence record, it is seen that PW.3 gave statement before PW.6 in the presence of PW.7 as per Ex.P.2 stating that the brother of the accused one Vishwanath poured Kerosene and her mother-in-law lit fire. For the reasons best known to the Investigating Officer, he has not charge sheeted against these accused persons. Even after recording the evidence, the Trial Court has not considered the evidence of PW.3, 6 and 7 where PW.3 stated that Vishwanath poured Kerosene and her mother-in-law lit fire. Even the prosecutor has not made any attempt to file any application under Section 319 of Cr.P.C. to add the parents-in-law or brother-in-law of the victim as co-accused. Even otherwise the Trial Court disbelieved the evidence of PWs.2, 3 and 5 in respect of demanding of dowry and the dowry given to the accused at the time of marriage and acquitted the appellant for the offence under Sections 3 and 4 of the Act. The Trial Court also disbelieved the evidence of PW.3 in respect of pouring kerosene and setting fire as stated by PW.3 for the offence under Section 307 of IPC and acquitted.
8. It is pertinent to note that the complaint-Ex.P.2 made by PW.3 before PW.6 wherein she has stated that Vishwanath, her brother-in-law i.e. the younger brother of the accused, poured kerosene and the accused gave match stick to his mother and the mother of the accused lit the fire, but in the evidence she has stated that the accused himself poured kerosene and her mother-in-law lit fire. There is a clear contradiction in her evidence in the statement made before the PW.6 in the presence of PW.7.
9. The witnesses PW.2-sister and PW.5-father of PW.3 speak only about the harassment said to have been suffered by the victim in the hands of the accused in the matrimonial home, which was suffered by PW.3 prior to occupying individual house/separate house by the accused and herself. Therefore, the Trial Court has rightly acquitted the accused for the offence under Section 307 of IPC and disbelieved the evidence of this witness. However, the findings given by the Trial Court in respect of Section 307 of IPC and Sections 3 and 4 of the Act were not at all challenged by the prosecution, which has attained the finality.
10. On considering the evidence of PWs.2, 3 and 5 goes to show that the accused was harassing PW.3, by not allowing her to sit on the Sofa and not allowing to watch TV and thereafter, this accused and PW.3 started residing separately near the house of her father and though it is stated that even thereafter making separate house the accused harassed her, but there is no specific allegation made by PW.3 that even after shifting the house to some other place, the accused harassed her by demanding any dowry or any ornaments. It is pertinent to note that the evidence of PW.3 goes to show that while she was admitted to the Hospital at Hindupur she has stated that she sustained burn injuries due to stove burst, but later she has improved her version. After arrival of her sister and father to the hospital, earlier statement of PW.3 made at Hindupur Hospital is under Ex.P5, wherein it is mentioned as follows:
“ Initially shown at Government Hospital, Hindupur. Alleged C/o accidental burns due to stove burst (gas stove) on 04.10.2008 at 10.00 p.m at the residence.. Informed patient.”
11. The prosecution has not chosen to examine the casualty medical officer who issued Ex.P.5, but it was marked only through the Investigating Officer. On perusal of Ex.P.5 and the evidence of the prosecutrix, there are two versions available before the Court. Until she was admitted to Victoria Hospital, she has not complained any harassment against any of the accused in respect of any dowry. But she has started complaining against the accused only after arrival of her father and PW.2, her sister. It is pertinent to note that her another sister examined as DW.1 by the accused was not supported her contention regarding any harassment though she has married the younger brother of the accused, but on overall evidence, absolutely there is no material to show that the accused continuously harassed the PW.3 even after they shifted to a separate house. At the first point of time, there is no whisper about any harassment in respect of the allegation that the accused not allowed PW.3 to sit on the sofa and not allowing her to watch T.V. Even otherwise, these allegations were prior to shifting the house while residing with the parents of the accused i.e. her in-laws house as joint family. But, there is no specific allegation about any harassment subsequent to changing the residence to a separate house. Even otherwise, merely the appellant or his parents not allowed the victim to sit on the sofa and restricted to watch T.V., on the earlier occasion that itself cannot constitute physical or mental cruelty in order to attract offence under Section 498A of IPC. Even otherwise there is no complaint filed after the accused person regarding demanding money/additional dowry prior to the alleged incident. If at all there is any continuous harassment and the said harassment dragged her to commit/attempt to commit suicide is a different question. But no such allegation is made against the accused until further statement is made before the Police about the allegation. If at all there was any harassment, she could have narrated the same before the Doctor at Hindupur at the first instance.
12. Upon hearing the arguments and the evidence, it clearly goes to show that when there is no harassment given by the accused subsequent to living separately, she has stated that she met with accidental fire, but after arrival of the parents and family members, she gave statement by improving her version that the accused poured kerosene and lit fire. Therefore, I hold the evidence given by PW.3 is insufficient to prove that the appellant continuously harassed PW.3 in respect of demand of dowry as alleged by the victim in her complaint. When the Trial Court disbelieved the evidence of PWs.2, 3 and 5 for the offences under Sections 307 of IPC and Sections 3 & 4 of Dowry Prohibition Act, there is no reason for accepting the same version for convicting the accused on the same evidence for the offence under Section 498A of IPC. Therefore, I hold the prosecution failed to prove the offence against the accused under Section 498A of IPC beyond all reasonable doubt. Therefore, I hold that the Trial Court committed error or illegality while accepting a portion of the evidence for the offence under Section 498A of IPC and disbelieving the remaining evidence. Hence, I proceed to pass the following;
Order The Criminal Appeal is allowed.
The judgment of the Trial Court convicting the appellant for the offence punishable under Section 498A of IPC is hereby set aside. The appellant is acquitted for the offence under Section 498A of IPC. The fine amount, if any, collected from him shall be refunded to him. The bail bond, if any, stands cancelled.
The Registry is directed to pay the Honorarium to Sri D.Mohan Kumar, learned Amicus Curiae, who has assisted this Court, in this matter.
Sd/- JUDGE mv