IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA Criminal Appeal No.394 of 2014 BETWEEN:
THE STATE OF KARNATAKA BY RURAL POLICE CHIKMAGALUR ... APPELLANT (BY SRI K.P.YOGANNA, HCGP) AND:
MURUGENDRA S/O LATE PUPPAIAH AGED ABOUT 37 YEARS APC-121, KALASAPURA VILLAGE LAKYA HOBLI CHIKMAGALUR TALUK PIN-577 101 ... RESPONDENT (BY SRI AJITH ACHAPPA, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 08.08.2013 PASSED BY THE I ADDL. DIST. AND S.J., CHIKMAGALUR IN CRL.A.NO.199/2013- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A OF IPC. THE SPP/STATE PRAYS THAT THE ABOVE ORDER MAY BE SET ASIDE.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT At the admission stage itself, the matter has been heard on merits to ascertain whether it is a fit case to admit.
2. Learned High Court Government Pleader contended before the Court that the Trial Court in C.C.No.583/2011 on the file of Additional Senior Civil Judge & JMFC, at Chikmagalur, on analysis of the entire evidence on record rightly convicted the respondent herein for the offence punishable under Section 498-A of Indian Penal Code (‘IPC’ for short). The First Appellate Court in fact misdirected itself in re-appreciating the evidence on record and acquitting the accused for the said offence. It is contended by the learned High Court Government Pleader that the First Appellate Court while re-considering the evidence on record mainly concentrated with regard to filing of the complaint after receipt of a divorce notice by the husband to the complainant (wife) and also the First Appellate Court has not properly appreciated the oral evidence in proper perspective. Therefore, it is a fit case to admit the appeal.
3. Respondent’s Counsel remains absent.
No representation.
4. I have carefully perused the Judgment of the Trial Court and also the First Appellate Court.
5. The brief factual matrix of the case are that the wife of the respondent has laid an FIR to the Chikmagalur Rural Police making allegations for the offence under Section 4 of the Dowry Prohibition Act, 1961 (‘D.P.Act’ for short) and under Sections 498-A and 506 of IPC. It is the allegation that the accused being the husband of the complainant after marriage started ill-treating and harassing her, inflicted cruelty on her both physically and mentally and forcing her to give consent for divorce as he has developed some illicit intimacy with another lady by name Shwetha. As the complainant refused to give consent for divorce, the accused started torturing her by demanding a sum of `5 lakhs from her parents as Dowry for the purpose of purchasing a two wheeler and also threatened her with dire consequences of killing her. On the basis of the said complaint, a case was registered in Crime No.127/2011 and after completion of the investigation, a charge sheet has been laid and a case has been registered in C.C.No.583/2011 before the Trial Court. After appearance of the accused, the Trial Court has formulated a point for consideration in the following manner:-
“1. Whether the prosecution proves beyond all reasonable doubts that, the accused, being the husband of complainant, after marrying her, used to ill-treat the complainant and inflicted cruelty on her and gave her physical and mental torture and forced her to give consent for divorce, with an intention to contact the second marriage and when complainant refused to give consent for divorce, the accused tortured CW.1 and demanding her to bring cash of Rs.5,00,000/- from her parents for purchase of a two wheeler and posed threat to kill her, when she intended to lodge the complaint and subjected CW.1 to physical and mental torture and thereby committed an offence punishable under Sec.498(A) and 506 of IPC and Sec.4 of D.P.Act?”
6. The Trial Court has answered the above said point partly in the affirmative and convicted the appellant for the offence under Section 498-A of IPC. However, acquitted the accused for the offence under Section 4 of the D.P.Act and as well as under Section 506 of IPC. However, convicted the appellant for the offence under Section 498-A of IPC.
7. The prosecution in order to bring home the guilt of the accused examined as many as 10 witnesses - PWs.1 to 10 and got marked Exhibits- P1 to P6. The complainant is examined as PW.1 and her parents are examined as PW.2 and PW.3 and other witnesses were also related witnesses and apart from them, the investigating officer was also examined.
8. After analysis of the entire evidence on record, the Trial Court has recorded the above said sentence on the accused. It is pertinent to note here that the Trial Court has acquitted the accused for the offence under Section 506 of IPC and also under Section 4 of D.P.Act. But the Court has not given any finding on the point as to why the Court has acquitted the accused for the offence under Section 4 of the D.P.Act and under Section 506 of IPC. However, the Trial Court has proceeded with an assumption that there was a demand of dowry for a sum of `5 lakhs and the accused has developed intimacy with one Shwetha, because of that reason he demanded for divorce. As the complainant has refused to give the same, he started demanding an amount of `5 lakhs for the purpose of purchasing a two wheeler.
When the Trial Court has acquitted the accused for the offence under Section 4 of the D.P.Act, it is not stated by the Trial Court as to in what manner the Trial Court can convict the accused for the offence under Section 498-A of IPC, when there is no demand of dowry of `5 lakhs has been proved to the satisfaction of the Court in view of the acquittal of the accused under Section 4 of the D.P.Act.
9. The Trial Court has not properly appreciated the evidence because there is no evidence worth recorded by the Trial Court to establish that the accused has developed illicit intimacy with one Shwetha; except the statement of the complainant, no other materials were available to the Trial Court to come to any other conclusion. The Trial Court has also not given any finding on the point that whether the prosecution has proved beyond reasonable doubt with reference to the illicit intimacy between the accused and the said Shwetha. Therefore, perhaps the Court has not convicted the accused under Section 498-A of IPC on the ground that the accused has developed illicit intimacy with Shwetha and for that reason he started ill-treating and harassing the complainant.
10. The above said aspects have been rightly taken into consideration by the First Appellate Court in Crl.A.No.199/2013 on the file of I Additional District & Sessions Judge at Chikmagalur, wherein, the First Appellate Court has considered the evidence of all the witnesses.
It has narrated that the dispute between the parties has been cropped up only after the accused has issued the divorce notice to the complainant. It is an admitted fact by the complainant that a divorce notice was issued on 09.04.2011 and the complaint – Ex.P1 was filed after about 4 days after receipt of the said notice and further the First Appellate Court has also re- analysed the entire evidence on record, came to the conclusion that PW.1 has not lead any evidence to show that the accused was leading a immoral life with one Shwetha. She has also admitted that, even she has not seen the face of the said Shwetha at any point of time and also she has not been examined any independent witness to prove the illicit contact between the accused and Ms.Shwetha. Therefore, the First Appellate Court has rightly come to the conclusion that, there cannot be any conviction under Section 498- A of IPC on the ground that the accused had any illicit intimacy with Shwetha and because of that reason he ill-treated and harassed the complainant. As I have already noted that there cannot be any conviction under Section 498-A of IPC with reference to the demand of dowry because the Trial Court itself has acquitted the appellant for the offence under Section 4 of the D.P.Act. Perhaps, the notice issued by the accused in demand of divorce, which was served on the complainant, she might be on the ill advise, prepared the complaint as per Ex.P1 and lodged before the police. Therefore, it goes without saying that even though the alleged ill treatment was there with reference to demand of any dowry or with reference to any illicit intimacy between the accused and as well as the said Shwetha, but no action has been taken by the complainant though she was residing in her parental house for such a long time till the accused issued divorce notice to her. Therefore, as a counter blast, perhaps a complaint has been lodged after receipt of the divorce notice, by her. Therefore, the First Appellate Court has taken the same in a right perspective and came to the conclusion that the prosecution has not proved the case even under Section 498-A of IPC beyond reasonable doubt.
11. On re-looking into the entire oral and documentary evidence on record, I do not find any strong reasons to interfere with the Judgment rendered by the First Appellate Court. It rightly set aside the Judgment of the Trial Court and acquitted the accused. Hence, the appeal itself is devoid of merits and there is no purpose in admitting the appeal for further proceedings. Hence, the following:-
ORDER At the admission stage itself, the appeal is dismissed.
Sd/- JUDGE cp*