IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL REVISION PETITION No.1183 OF 2009 BETWEEN:
Thirunavakarasu, Aged about 45 years, Son of Subramani, Residing at No.30, Lubbey Masjid Street Road, Shivajinagar, Bengaluru. ...Petitioner (By Sri. S.Chennaraya Reddy, Advocate) AND:
State of Karnataka Represented by Ulsoor Gate Woman Police Station, Bengaluru-560 002. ...Respondent (By Sri. Divakar Maddur, HCGP) This Criminal Revision Petition is filed under Section 397(1) of Cr.P.C praying to set aside the impugned judgment dated:08.02.2006 passed in C.C.No.14998/1998 by the VI- Addl. Chief Metropolitan Magistrate, Bengaluru and in Crl.A.No.395/2006 dated:04.12.2009 passed by the Addl. Sessions Judge and Presiding Officer, Fast Track Court-IV, Bengaluru.
This Petition coming on for Final Hearing, this day, the Court made the following:
ORDER Accused No.1 has preferred this petition, challenging the confirmation of his conviction for the offence punishable under Sections 489(A), 506 read with Section 34 of the Indian Penal Code, 1860 and under Section 4 of the Dowry Prohibition Act, 1961 (hereinafter for brevity referred to as “IPC” and “D.P. Act” respectively), by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court-IV, Bengaluru, (hereinafter for brevity referred to as “lower Appellate Court”), in Crl.A.No.395/2006, in its judgment dated 04.12.2009.
2. The summary of the case of the prosecution is that the complainant lodged a complaint against four accused with the respondent-Police Station. The summary of which is that she was married to accused No.1 on 15.02.1989, as per the customs prevailing upon them. Accused No.4 is the brother of accused No.1, accused Nos.2 and 3 are the parents of accused No.1. The accused have taken `10,000/- as dowry, golden ornaments and also house-hold articles to accused No.1, on demand. After marriage, while the complainant was residing in her matrimonial home, the accused started demanding additional dowry of `2 lakhs on the pretext of improvement of the business of accused No.1. In that connection, all the accused subjected the complainant to both physical and mental cruelty. They had also put life threat to the complainant and they ousted the complainant from their house. After investigation, the complainant-Police filed charge sheet against accused Nos.1 to 4 for the offence punishable under Sections 498(A), 506 read with Section 34 of IPC and under Sections 3, 4 and 6 of the D.P. Act.
3. During the pendency of the matter for trial, accused Nos.2 and 3 are reported to be dead. Hence, case against them stood abated. Charges were framed by VI Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter for brevity referred to as “trial Court”) against accused Nos.1 to 4.
4. since the accused pleaded not guilty, in order to prove the alleged offence against them, the prosecution got examined 11 witnesses from PWs.1 to 11 and got marked documents from Exs.P-1 to 9(a). No material objects were marked. From the side of accused, accused No.1 got examined himself as DW.1 and got examined one Sri. Thyagaraju as DW-2. However, no documents as exhibits were marked from their side.
5. The trial Court by its judgment and order on sentence, dated 08.02.2006, acquitted accused No.4 from the alleged offences. It also acquitted accused No.1 for the offence punishable under Sections 3 and 6 of the D.P. Act. However it convicted accused No.1 for the offence punishable under Sections 498(A), 506 read with Section 34 of IPC and Section 4 of the D.P. Act and sentenced him accordingly.
6. Challenging the judgment of conviction and order on sentence passed by the trial Court, accused No.1 preferred Crl.A.No.395/2016 before the lower Appellate Court, which by its judgment dated 04.12.2009, dismissed the appeal confirming the judgment of conviction and order on sentence under appeal. Aggrieved by the same, accused No.1 has preferred this appeal.
7. The Lower Court Records were called for and the same are placed before this Court.
8. Heard arguments from both side.
9. Learned counsel for the petitioner in his arguments submitted that the marriage between the complainant/PW.1 with the petitioner/accused No.1 on 15.02.1989 and the relationship of accused No.1 with accused Nos.2 to 4 are not in dispute. However, the complaint is filed nine years after the marriage, as such, it gives raise to suspicion. He also submitted that PWs.1, 2, 3, 5 and 6 are the family members. PWs.7 and 8 are the hearsay witnesses, as such, their evidence cannot be believed. He also submitted that the evidence of these witnesses are with contradictions. It is not stated as to when and where the alleged demand for dowry of `2 lakhs was made by the accused. He also submitted that the alleged letter at Ex.P-5 is an after thought and created only to lodge a false complaint against the petitioner.
10. Learned High Court Government Pleader in his arguments submitted that all the witnesses have supported the case of prosecution and their evidence has come in uniformity proving the alleged guilt against the accused/petitioner. He also submits that Ex.P-5 makes it very clear that the complainant was subjected to cruelty by the petitioner and also her life was also put to threat. He further submits that in view of the fact that both the Courts below have convicted the petitioner and that there is no reason for interference in the said order by this Court.
11. PW.1 - the complainant, PW.2 - her father, PW.3 – her mother, PW.5 – her younger sister, PW.6 – her elder brother, have stated about the marriage of PW.1 as said to have been performed with the petitioner herein on 15.02.1989. The said fact is not in dispute. All these witnesses have also stated that at the time of marriage, at the demand made from the accused, valuables in the form of dowry was given to accused. However, the accused has denied the same.
12. PW.1, the wife of the petitioner in her evidence has stated that prior to the marriage, a marriage engagement ceremony was held and a week earlier to that marriage negotiation was held in her father’s house, in which negotiation, her parents, PWs.5 to 8 and other relatives had participated. All the four accused were also present in the said negotiation, wherein, the parents of the petitioner demanded for dowry of `10,000/- in cash, 15 sovereigns of gold, a suit to accused No.1 and domestic utility articles as dowry.
13. After negotiation, it was agreed by the parents of the complainant that a cash of `10,000/-, 12 sovereigns of gold, a suit and domestic articles to be given to the accused. Accordingly, fifteen days prior to the marriage, her parents went to the house of the accused and paid a sum of `10,000/- in cash as dowry. The golden ornaments as agreed, was also given during the marriage and immediately after the marriage, `5,000/- worth silver articles and house hold utensils were all given in the marriage from her side.
14. PW.1 has also stated that for few months after the marriage, she was taken care of well in her matrimonial home. Thereafter, her husband started pestering her to get a sum of `2 lakhs from her parents’ house in order to improve his business, who was running a stationery shop in the ground floor of their house. When she communicated the same to her father, her father expressed his inability to pay. The accused/husband demanded that her father should stand as a surety for a loan which he was going to avail for which also her father was not agreeable. For the said reason, the accused started subjecting her to cruelty by assaulting her. She has also stated that accused was not providing provision to run house-hold. She has stated that she along with her husband were staying in a separate portion in the house and in the remaining portion, her in-laws and other family members were staying.
15. The witness also stated that though her husband/petitioner was providing all the required articles and items to his employees in the business, but not to her, though she was his wife. She has also stated that when the accused used to go out of the shop on some business purpose, she was asked to run the shop and after his return, he used to suspect her suspecting that she was siphoning business amount collected and paying it to her parents.
16. PW.1 in her evidence, has also stated that after birth of second child to them, the accused was also keeping the electric boiler in the switched on position to give electric shock to her, however, she was careful. They were also keeping open the LPG stove knob so that there would be leakage of gas. Still, she was noticing the same and was taking precaution in that regard. The accused also used black magic against her. In that connection in the year 1997, she lodged a complaint before the Women Police, who had summoned her husband and other accused and advised them suitably. Despite the same, in the year 1998, all the accused demanding for dowry of a sum of `2 Lakhs threw her out of the house. At that time, she had also written a letter to her father. The witness has identified the said letter at Ex.P-5 and her complaint at Ex.P-1. The witness was subjected to a detail cross-examination wherein she adhered to her original version.
17. P.W.2, father of P.W.1 also has led his evidence on the lines what his daughter i.e., P.W.1 had stated. He also stated that the accused demanded and accepted the dowry at the time of marriage in the form of cash, gold and clothes. He also stated that after six months of marriage his son-in-law i.e., petitioner started demanding an additional dowry of `2 Lakhs on the pretext of expanding his business. However, he (this witness) did not agree to meet the said demand for which the accused started subjecting his daughter to cruelty. She was not given proper food and was put to extra labour both in the house and in their business shop. This witness has also stated that though his son- in-law was providing provisions and other items to his employees, but he was refusing to provide provisions to his wife. On the other hand, was abusing her in filthy language. This witness has also stated that the accused apart from mentally torturing his daughter also practiced black magic and attempted to kill her by electric shock and leakage of LP gas. However, such attempts made by them on two to three occasions were avoided by his daughter. This witness has also stated that in that connection his daughter had written him a letter which had been identified at Ex.P-5. The denial suggestions made to him in his cross-examination were not admitted as true by him.
18. The evidence of P.W.3, the mother of P.W.1 and wife of P.W.2 is on the very same lines as that of her husband i.e., P.W.2.
19. P.W.5, the younger sister of P.W.1 and P.W.6, the elder brother of P.W.1 also have given their evidence on the similar lines as that of their parents. Both of them have stated that the accused had demanded and accepted dowry in the form of cash, gold and clothes prior to the marriage. After the marriage of their sister with the petitioner also they started demanding for additional dowry of a sum of ` 2 Lakhs on the pretext of expansion of business of the petitioner. Both these witnesses have stated that their sister i.e., P.W.1 as and when meeting them was disclosing these aspects to them. These witnesses have also stated that the accused even attempted to give electric shock to P.W.1 through an electric boiler and also practicing black magic and witch craft. Their brother-in-law i.e., accused No.1/ petitioner was also denying food to their sister and was conditioning that she would get food, provided she works both at home and in the business to his satisfaction. The witnesses have also stated that their sister had also written a letter about her difficulty addressed to her father. The denial suggestions made to them were not admitted as true in their cross- examination.
20. P.W.7 was the neighbour of P.W.2, the father of the complainant. Apart from stating the relationship of complainant with the petitioner the witness has also stated that she had attended the marriage engagement ceremony of the petitioner with P.W.1. The accused had demanded for dowry in the form of cash, 15 sovereigns of gold, silver articles and home utility articles. Fifteen days prior to the marriage, the dowry amount in cash of a sum of `10,000/- was also given to the accused by the parents of the complainant.
The witness has further stated that for about five to six months P.W.1 was taken care of well by her husband and his family members. Thereafter the accused started pestering her to get ` 2 Lakhs from her parents’ house. Since she could not get that amount they started subjecting her to cruelty. In that connection, the husband of the complainant had sent her to parents house. However, she was sent back by her parents by suitably advising her and speaking some words of consolation. The witness has also stated that when she had been to extend invitation to P.W.1 in connection with her daughter’s marriage (of this witness) at that time P.W.1 stated to her that her life is under threat in her matrimonial home and that they were subjecting her to cruelty. The witnesses also stated that in that connection P.W.1 had also written a letter to her father. Her husband later sent his wife back to her parents house conditioning that she would return only with the money demanded by him. In her cross-examination though it was suggested that she does not know anything about the allegations made by the complainant, but the witness stated that she has stated what she was told by none else than the complainant herself.
21. P.W.8, a friend of P.W.2 also has supported the case of the prosecution stating that prior to the marriage, in the negotiation, the accused demanded for dowry and later accepted the dowry given by the parents of the complainant. After the marriage, the accused started demanding for an additional sum of `2 Lakhs to be brought by the complainant. Since the same was not complied by her, the accused started subjecting her to cruelty both physically and mentally. Both P.Ws.7 and 8 have also stated that after the marriage the accused was demanding and getting small amounts in thousand and two thousand from the father of P.W.1.
P.W.8 further stated that the cruelty meted to P.W.1 was told to him by none else than P.W.1 herself.
She had also told to him that accused attempted to give electric shock and putting her life to risk by keeping open the LP gas in the stove and also by practicing black magic and witch craft. This witness has also stated that due to unbearable cruelty meted to her by the accused she had written a letter to her father also. In his cross- examination, P.W.8 stated that the statements made by him in his examination-in-chief were given to his knowledge by the father of the complainant. However, the denial suggestions made to him were not admitted as true by him.
22. P.W.4 and P.W.11 are the Investigating Officers, who have spoken about the investigation said to have been done by them in the matter.
23. The evidence of P.Ws.1, 2, 3, 5 and 6 are the direct witnesses about the alleged demand for the dowry said to have been made by the petitioner both prior to the marriage and also subsequent to the marriage. All these witnesses have categorically stated that they were present when such a demand was made from the accused side. Though these witnesses are the family members of P.W.1, the complainant, as such they are relative witnesses, but merely because they are relative witnesses their evidence cannot be simply discarded. However, it requires a thorough scrutiny before accepting and acting upon the said evidence.
24. When the evidence of P.Ws.2, 3, 5 and 6 is thoroughly scrutinized in view of their admitted relationship with P.W.1 and the petitioner herein, their alleged presence at the time of the marriage negotiation and they getting the information about the living condition of P.W.1 even after her marriage cannot be disbelieved. Nowhere in their cross- examination it has been denied or suggested that none of them had participated in the marriage negotiation or that P.W.1, the complainant was not in contact or constant touch with them. On the other hand, all these witnesses have also stated that even after the marriage of P.W.1 with the petitioner /accused No.1 these people were in contact with P.W.1. Now and then P.W.1 was visiting them so also these people visiting her. It was on those occasions she used to reveal about the cruelty said to have been meted to her in her matrimonial home by the accused and also the demand for dowry.
Since the alleged demand for an additional dowry of `2Lakhs said to have been made by the petitioner/accused was subsequent to the marriage and P.W.1 was said to have been pestered by the accused to get that amount through her father, the evidence of witness go to show that in the said connection P.W.1 had passed on the said demand made by her husband to her father. However, the said demand was refused to be met by her father. This has clearly come up in the evidence of P.Ws.1, 2, 3, 5 and 6. P.W.2 being himself the father of P.W.1 has also clearly stated that when his daughter told him about the demand made by the accused and she being subjected to cruelty by them in that regard, he refused to meet the said demand of paying another `2 Lakhs to the accused No.1. Therefore, the evidence of these witnesses being the family members of P.W.1 finds no reason to disbelieve. On the other hand, P.Ws.2 and 3 being the parents of P.W.1 and P.Ws.5 and 6 being the sister and brother of P.W.1, it is quite but natural of they being in contact with P.W.1 and getting the details about her condition of stay in matrimonial home. Therefore, the argument of learned counsel for the petitioner that P.Ws.2, 3, 5 and 6 being the family members of the complainant, their evidence cannot be believed is not acceptable.
25. P.W1 has also stated that in the year 1997 she had also given a complaint with the women police station when the police had summoned the accused and had advised them to take care of the complainant properly. The said aspect has not been specifically denied in the cross-examination of the said witness.
It was only brought in the cross-examination of P.W.1 that from 1989 to 1997 she had not lodged any complaint. Merely because she had not lodged complaint for about 8 years, by that itself it cannot be concluded that she was not subjected to any cruelty. Being a house wife born in a full family with parents, brother and sister and given in marriage to a family with her in-laws, brother- in-law and husband, it is quite but natural for a woman to tolerate for some time the inconveniences or harassment said to have been meted to her in her matrimonial home. It cannot be expected that the moment the husband demands for a dowry his wife should rush to the police station and lodge a complaint without any delay. In the instant case also P.W.1 has been pleading about the cruelty meted to her by the accused before her parents, brother and sister. She has stated in her cross- examination that she was visiting her parents once in a fortnight and her parents were visiting her once in three to four months which go to show that P.W.1, the complainant and her parents were in constant touch with each other. As such there was all the possibility of they communicating their grievances to each other.
26. Evidence of P.Ws.2, 3, 5 and 6 also supports the evidence of P.W.1. Even in their cross-examination nothing favorable to the accused has been elicited. Merely because P.W.2, the father of P.W.1 is said to have lodged police complaint with respect to alleged cruelty by that itself it cannot be concluded that no such cruelty was met to P.W.1 by her husband.
27. On the contrary, the letter at Ex.P-5 which P.W.1 has stated as that was written by her to her father gives some more details about the alleged cruelty said to have been meted out by the accused to her. Though the learned counsel for the petitioner states that the said letter was written just a month prior to the complaint lodged by P.W.1, but by the said fact itself the contents of the said letter cannot be suspected. On the other hand, it may be understood in the manner that even after writing such a letter since there was no improvement in the circumstance and according to complainant she was continued to be harassed by the accused she had no option but to lodge complaint before the police as per Ex.P-1. Thus, the evidence of P.Ws.2, 3, 5 and 6 shows that the complainant was subjected to cruelty by the accused and she was also put to threat by the conduct of the accused whose demand for a sum of `2 Lakhs was not met by the parents of P.W.1.
28. As observed above, P.Ws.7 and 8 are independent witnesses. Their evidence go to show that they are not strangers to the family of the parents of the complainant and that they know the family of the parents of the complainant since several years. P.W.7 has even stated that he had attended the marriage engagement ceremony also. Both the witnesses, as observed above, uniformly stated about the demand for dowry made by the accused and also acceptance of the same by the accused. As observed, both the witnesses have also stated about the cruelty said to have been meted to P.W.1 by her husband. P.W.7 has also given instances when exactly she was told about the cruelty meted to P.W.1. She has specifically stated that when she had met P.W.1 to extend invitation about the marriage of her daughter, P.W.1 revealed about the cruelty meted to her by her husband and also to her life being put under threat. The said statement of the witness has not been specifically or categorically denied in her cross-examination. Though learned counsel for the petitioner submits that she is a hearsay witness, but it cannot be forgotten that she has heard it from the mouth of none else than the complainant herself. Same is the evidentiary value of the evidence of P.W.8. The said witness has stated that he heard about the cruelty meted to P.W.1 by her husband through the father of the complainant who was his childhood friend. Nothing was elicited in his cross-examination to show that in order to favour his childhood friend, P.W.8 was deposing falsely. On the other hand, a reading of the evidence of P.W.8 in its entirety inspires confidence to believe the same.
29. In the light of the above, if the evidence of D.W.1 / petitioner / accused No.1 is analysed, it reveals that he has admitted his marital relationship with P.W.1. However, he has taken a contention that on 06.01.1998 complainant left his company. He has stated that when he questioned the shortage in the business money, she quarreled with him and left his company. However, he has not given any details as to when and on how many occasions and for what amount there was shortage of money. On the contrary, P.W.1 in her evidence has stated that they were mere allegations and the acts of suspicion made against her by her husband. Therefore, when such an allegation is made by her husband as D.W.1 he was expected to place some material to corroborate the same, which he has not done. Further, he has admitted in his cross-examination that he had employed few persons as employees under him. The evidence of P.Ws.1 and 2 that accused No.1 had employed few people under him to work in his business stands proved by such admission and gives a scope to believe the evidence of P.W.1 that accused was treating those employees well and providing them with provisions and clothes but not to his wife i.e., P.W.1.
30. D.W.2 is admittedly an employee under D.W.1. Though he has stated that he has not seen passing of the dowry to the accused, but admittedly he being an employee under D.W.1 his presence at the time of giving dowry to the accused cannot be expected as a necessary incident to occur. This witness stated that no quarrel had taken place between the accused and the complainant. On the contrary, the said accused as D.W.1 himself has stated that a quarrel took place between him and his wife in the shop. If the evidence of accused No.1/ petitioner that a quarrel took place between him and the complainant that too in the shop is to be accepted then the evidence of his own employee i.e., D.W.2 becomes not trustworthy. Still D.W.2 also has stated in his evidence that from the complainant’s side her parents used to visit her now and then. So this supports the evidence of P.Ws.1, 2 and 3 that they had a constant contact between them and they were visiting each other. Barring this, the evidence of D.W.2 would in no way helps the accused.
From the above, it is clear that evidence of P.Ws.1, 2, 3, 5 and 6 makes it clear that the accused has demanded for dowry, more particularly, of a sum of `2 Lakhs to be brought by P.W.1 from her father and which demand was made by him after the marriage of P.W.1 with him. The incident of cruelty meted to P.W.1 by her husband as apart from her family members of her paternal home have also been corroborated by P.Ws.7 and 8. The defence of the accused that P.W.1 was siphoning the business amount to her parents was confined only to the suggestion made in the cross-examination of P.Ws.1, 2, 3 and 8 without those witnesses admitting those suggestions. Barring this, no corroborative material was placed by the accused in that regard. Thus, the defence of the accused does not sustain.
31. On the other hand, the evidence from the prosecution side which is in consistency appears to be trustworthy and has proved beyond reasonable doubt the guilt of the accused for the offences punishable under Sections 498A and 506 of I.P.C. and under Section 4 of D.P. Act. Both the Courts below having appreciated the evidence of the witnesses led before it from both side in proper perspective have arrived at a right conclusion holding the accused No.1 guilty of the alleged offence. I do not find any reason to interfere in the said finding given by the Courts below.
The quantum of the sentence ordered by the trial Court also since being after considering the entire facts and circumstances of the case and proportionate to the criminality of the offences proved, I do not find any reason even to interfere in the quantum of sentences also. Accordingly, I proceed to pass the following order:
ORDER The appeal is dismissed.
The judgment of conviction as confirmed by the learned Additional Sessions Judge and Presiding Officer, Fast Track-IV, Bengaluru City in Crl. A. No.395 of 2006 dated 04.12.2009 is confirmed.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith, to enable it to proceed further in the matter for issuance of warrant of conviction, if necessary, and to proceed in accordance with law.
An entire copy of this judgment also be furnished to the accused, immediately free of cost.
Sd/- JUDGE BMC/HNM