IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.764 of 2010 BETWEEN STATE BY THE STATION HOUSE OFFICER, MAGADI ROAD POLICE STATION, BANGALORE.
(BY SRI K.P. YOGANNA, HCGP) AND 1. SRI ANNADORAI, S/O. M. SUBRAMANI, AGED ABOUT 37 YEARS, RESIDENT OF No.12/59, 6TH CROSS, 6TH BLOCK, RAJAJINAGAR, No.24/5M, 7TH CROSS, NEAR MARIYAMMA TEMPLE, MAGADI ROAD, K.P. AGRAHARA, BANGALORE – 23.
2. SMT. MEENA, W/O. SUBRAMANI, AGED ABOUT 60 YEARS, RESIDENT OF No.2/87, NEW STREET, V.C. MOTTUR, WALLAJAHPET, VELLORE DISTRICT, TAMILNADU.
... APPELLANT 3. SMT. JAYANTHI, W/O JYOTHIPRAKASH, AGED ABOUT 35 YEARS, 4. SRI JYOTHIPRAKASH, S/O. SRIRAMAN, AGED ABOUT 46 YEARS.
(RESPONDENTS 3 AND 4 ARE RESIDENT OF ... RESPONDENTS No.24/5M, 7TH CROSS, NEAR MARIYAMMA TEMPLE, MAGADI ROAD, K.P. AGRAHARA, BANGALORE – 560 023.) (BY SRI GURUDEV I GACHCHINAMATH, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) & (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 29.4.2010 PASSED BY THE PRESIDING OFFICER, FTC- IX, BANGALORE CITY IN CRL.A.No.73/2009 - ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 498(A), 506 OF IPC AND UNDER SECTIONS 3 AND 4 OF D.P. ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the State is directed against the judgment dated 29.04.2010 passed by the Presiding Officer, Fast Track Court-IX, Bengaluru, in Crl.A.No.73/2009 allowing the appeal filed by the accused/respondents herein as against the judgment passed by the Trial Court in CC No.10071/2006, dated 19.01.2009.
2. The respondents herein are accused Nos.1 and 3 to 5 before the Trial Court. The Trial Court convicted and sentenced these accused for the offences punishable under Sections 498A and 506 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short ‘D.P.Act’) and sentenced accused No.1 to undergo simple imprisonment for a period of one year and to pay fine of Rs.3,000/- for the offence under Section 498A of IPC and further accused No.1 was sentenced to pay fine of Rs.2,000/- and to undergo simple imprisonment for six months for the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act. Accused Nos.3 to 5 were sentenced to pay fine of Rs.1,000/- each and to undergo simple imprisonment for a period of six months for the offence punishable under Section 498A of IPC. Further, sentenced them to pay fine of Rs.500/- each and to undergo simple imprisonment for three months for the offence punishable under Sections 3 and 4 of the D.P.Act.
3. Heard learned High Court Government Pleader for the appellant-State and learned counsel for the respondents.
4. Before adverting to the arguments addressed by the learned counsel, it is worth to mention the brief facts of the case of the prosecution as under:
PW.1-Shashikala filed a written report before the Magadi Road Police Station on 16.11.2005 alleging that she was given in marriage to accused No.1 and their marriage was held on 10.11.2002 at Chowdeshwari Kalyana Mantapa, Bengaluru. At the time of marriage, her parents gave 30 sovereigns of gold ornaments and also household articles like Fridge, Washing Machine, Cot and Blankets, Silver items as well as other utensils worth of Rs.40,000/-. After the marriage, she was residing with accused No.1 in a rented house at Magadi road. Accused No.1-Anna Dorai, the husband of PW.1, is said to have been looking after her well only for 4 to 5 months. Thereafter, he has started demanding Rs.5,00,000/- as additional dowry or alternatively a site within the limits of Bengaluru City. After she became pregnant, she was sent for delivery and she gave birth to a male child, who was aged about 3 years at the time of filing the complaint. The accused No.1 was said to be not ready to take her to the matrimonial home until they gave the additional dowry as demanded by him.
On 7.8.2005, at 9.30 p.m., the accused brought the complainant to her parents house and left her along with the child saying, unless and until her parents provide additional dowry or alternatively a site, he will not take her back. Thereafter, on 14.11.2005, her parents approached accused No.1 and requested him to take back the complainant and her child, but he refused to take her. On the other hand, he abused them in filthy language. After receipt of the complaint, the Police registered a case in Crime No.429/2005 for the offences under Section 498A and 506 read with Section 34 of IPC and Sections 3 and 4 of the D.P.Act. Initially, the complaint came to be registered against five accused persons i.e. accused No.1- husband of the victim, accused No.2-brother of the accused No.1, accused No.3-mother of accused No.1, accused No.4-sister of accused No.1 and accused No.5- husband of accused No.4. After the investigation, the Investigating Officer filed the charge sheet only against accused Nos.1 and 2. During evidence, the Trial Court, by invoking Section 319 of Cr.P.C., added accused Nos.3 and 4 as additional accused. The accused persons were put on trial, but they denied the charges. The prosecution, in all, examined nine witnesses as PWs.1 to 9, got marked 13 documents as per Exs.P.1 to P.13 and after closing of the prosecution evidence, the statement of the accused under Section 313 of Cr.P.C. has been recorded. The case of the accused was one of total denial and accused No.1 examined himself as DW.3-Anna Dorai and he has also examined three more witnesses as DWs.1, 2 and 4, but no documents were marked. After hearing the arguments, the Trial Court found accused Nos.1, 3 to 5 guilty, convicted and sentenced them as stated supra. Accused No.1, 3 to 5 on filing the appeal, the Presiding Officer, FTC-IX, Bengaluru, allowed the appeal and acquitted all the accused persons of the charges levelled against them. Hence, this appeal by the State.
5. Learned High Court Government Pleader contended that even though the complainant and her parents supported the prosecution case, they have categorically stated about demand and acceptance of dowry at the time of marriage and subsequently, the accused No.1 demanded cash of Rs.5,00,000/- alternatively a site and when the complainant was not able to meet the demand made by the accused persons, the accused No.1 brought the complainant and her child and left in her parents house and later, refused to take her back. There is sufficient material placed on record before the Trial Court for the offence under Section 498A and also under Sections 3 and 4 of the D.P.Act. On the basis of the material placed on record, the Trial Court rightly convicted the accused, but the Appellate Court not properly appreciated the evidence on record and erred in acquitting the accused. Hence, prayed for setting aside of the judgment passed by the Appellate Court and confirm the judgment of the Trial Court.
6. Per contra, learned counsel for the respondents strenuously argued that accused Nos.2 and 3 were residing in Tamil Nadu. Accused No.1 and the complainant were residing in a separate rented house at Bengaluru. There was no demand of any bike or gold ornaments by the accused persons. Even in the complaint, there was nothing mentioned about the demand made by the accused persons prior to the marriage and even after the marriage, but for the first time, before the Court, the witnesses have improved their version regarding demand of bike and gold ornaments before the Court. The Investigating Officer rightly deleted the names of accused Nos.3 to 5 while filing the charge sheet, but the Trial Court impleaded accused Nos.3 to 5, who were not at all present or resided along with accused No.1. Apart from that, learned counsel also argued that respondent No.1 filed a matrimonial case against the complainant and obtained a decree of divorce on the ground of cruelty as well as dissolution. The same has attained finality. Even the complainant filed a complaint before the Magistrate under the Protection of Women from Domestic Violence Act 2005, which also came to be dismissed. Accused No.1 also filed an application for custody of the child under the Guardians and Wards Act 1890, which also came to be partly allowed. After the acquittal and obtaining a decree, accused No.1 married some other lady and is having two children. The complainant also not challenged the decree of divorce and she has also married and living with some other person. Therefore, the judgment of the Appellate Court does not warrant any interference by this Court and he, therefore, supported the judgment of the Appellate Court and prayed for dismissal of the appeal.
7. Upon hearing the arguments, it is necessary to have a cursory look at the evidence on record.
PW.1-Shashikala, wife of Anna Dorai deposed before the Court as narrated by her in her complaint-Ex.P.1. However, she has also stated that the accused at the time of marriage demanded one motor bike and 40 sovereigns of gold ornaments and also household articles and wanted the marriage in a grand manner, but her parents gave only 30 sovereigns of gold and other household articles including washing machine, blanket, cot, mixie and all other household articles, gold and silver articles. In the cross-examination, again she asserted that the accused demanded gold and motor bike at the time of marriage talks. However, she has admitted that it was not mentioned in the complaint regarding demand of motor bike and 40 sovereigns of gold prior to marriage during marriage talks.
PW.2-Vimala, the mother of the complainant, also given evidence on the life of her daughter.
PW.3-Ravi, the father of the complainant ha also given evidence in the same line of PWs.1 and 2. However, he has further stated in his evidence that accused No.1 assaulted the complainant mercilessly and not providing any ration etc. and he used to provide ration (groceries) once in three months and also stated that he requested the accused to take back the complainant i.e., his daughter, but the accused refused. Hence, he has made the complaint.
PW.4-Rukmini Ganesh is the aunt of PW.1. She has also given evidence in the same line of PWs.1 to 3. She has also deposed that she has witnessed the seizure of household articles from the house of the accused by the Police under the panchanama and list prepared by the Police as per Ex.P.3. PW.6 is the landlord in whose house accused No.1 and PW.1 were residing by paying rent. Though he has stated before the Court that the accused was paying Rs.1,900/- and paid advance of Rs.30,000/-, but he has not stated as to how they were living in their house and he did not know if there was any quarrel in their house and after three years, the Police came to his house and he came to know from the Police that accused No.1 assaulted the complainant. Even though he has not supported the case of the prosecution, but not chosen to treat this witness as hostile as this witness has not at all spoken about the harassment or ill-treatment by accused No.1 to PW.1.
PW.7-Venkatesh is the panch witness to the spot Mahazar as prepared by the Police at the house under Ex.P.2 where he also speaks about the seizure of Fridge, TV, washing machine and other household articles from the house of the accused. During the cross-examination, except denial nothing has been elicited in respect of seizure of the articles by the Police under the panchanama Ex.P.2.
PW.8-Sathyanarayana, the Choultry Manager, has given certificate as per Ex.P.13. He speaks about the marriage of PW.1 and accused No.1 performed in their Choultry. The marriage is not in dispute. Therefore, there is no consequence of the evidence of this witness.
PW.9 is the Investigating Officer who registered the case and conducted spot panchanama as well as seizure of articles as per the list under Ex.P.3 and recorded the statement of some of the witnesses. Later, he has handed over the investigation to CW.15 and CW.15 filed the charge sheet.
8. Perusal of the complaint and the evidence before the Court goes to show that PW.1 has not stated that prior to the marriage, the accused or his relatives demanded dowry as well as bike, however, she has stated that during the time of marriage, her parents gave 37½ sovereigns of gold ornaments to herself and her husband and other household articles like Fridge, Washing Machine etc. In the cross-examination, she also admitted gold ornaments being given to her by her parents for her use and the household articles were given to herself and accused to lead their marital life. Though she has stated the same was given by her parents as demanded by the accused, but the same was not mentioned in the complaint at the earliest point of time. Even in the evidence, she has admitted that accused Nos.2 and 3 were residing in Tamil Nadu and they were not at all residing at Bengaluru. For the marriage talks, accused Nos.4 and 5 came to the house of PW.1 and the accused had not participated in the marriage. On perusal of the entire evidence of this witness regarding 40 sovereigns of gold and motor bike were all improved versions before the Court, even though the same was not stated by the father before the Investigating Officer in their statement. Though the landlord PW.6 has not stated anything about the quarrel between accused and PW.1 during their stay in his house, no doubt, in a case punishable under Section 498A of IPC or under the Dowry Prohibition Act, parents and relatives are the important witnesses to be deposed in favour of the prosecution but in respect of the harassment and ill- treatment and further demand of dowry, except this witness no other witness were examined by the prosecution to prove the same. Even, there was no panchayat held in the presence of any of the elders or well-wishers on behalf of either the accused or the complainant side. Mere providing the household articles, giving Cot, Fridge, Washing Machine for the use of accused No.1 as well as the complainant that itself cannot be considered as the demand made by the accused without any demand being made by the accused prior to the marriage or after the marriage. It is also admitted by some of the witnesses that it was given as customary gift. Though the Washing Machine, Fridge etc., cannot be considered as a customary gift, but the parents of PW.1 have given these articles for the convenience of their daughter to lead a happy marital life with accused No.1. The main dispute arose between accused No.1 and the complainant only after the birth of the child. The accused is said to have not taken her back, but demanded a site in Bengaluru or Rs.5,00,000/- for purchase of a site in Bengaluru. When the complainant and her parents refused to give the said amount, the accused refused to take back her to the matrimonial home, on 07.08.2005, the accused brought back the complainant and left her in her parents house and demanded to provide Rs.5,00,000/- until then he will not take her back. The same was denied by the defence. On perusal of the evidence of DW.1, the neighbour of accused and PW.1 she used to come to the house of accused No.1. She has stated that the wife of accused No.1 i.e., PW.1 used to talk with her whenever she met her. They were in good terms none of the persons from the family of accused No.1 used to come to the house of accused No.1. On the other hand, the aunt and parents of PW.1 used to visit their house. During the cross-examination, the learned public prosecutor disputed her residence on the ground that she has not produced any document to show that she was residing in the house of Sathyamurthy, but it was not disputed by the prosecution. This witness is from Rajajinagar. She has given her address as Rajajinagar. Merely she has not produced the rental receipt, her evidence cannot be thrown out as she is deposing falsely. On the other hand, women used to meet and discuss together whenever they meet. Therefore, her evidence cannot be thrown out.
DW.2, who is said to be the marriage mediator, through whom the marriage settlement was held, has stated that he has not taken any dowry and accused No.1 looked after the complainant well by making a separate house. In the marriage talks itself, accused agreed to make separate house to live separately. Accused No.1 was previously residing in his sister’s house i.e. in the house at Bengaluru. He has also stated that parents of PW.1 used to oppose the visiting of accused to their house and he has stated that there was no demand at the time of marriage talks. During the cross-examination, nothing has been elicited to disbelieve the evidence of this witness. Merely this witness did not know how much amount has been spent, that itself is not a ground to reject his evidence DW.3 is accused No.1. He has stated that he has not demanded any dowry prior to the marriage or after the marriage and he has stated that the complainant used to oppose visiting of his parents to the house and she has threatened to commit suicide, if any of his relatives come and visit their house. Though he has stated that panchayat was held and the complainant apologized, he has no other proof to prove the same. For the first time, he has stated that there was panchayat held wherein, the complainant tendered apology. However, in the cross- examination by the prosecutor in respect of his salary, avocation etc., this witness being accused No.1, his evidence was denied by the prosecution.
DW.4 is accused No.5. He has also denied the prosecution case. Further in the cross-examination, he had admitted that he has visited the house of the complainant on behalf of accused No.1 and participated in the marriage talks, but denied that he has demanded anything on behalf of accused No.1. Though he has admitted that there is no demand for giving Fridge, Mixie and washing machine in the marriage, but he has stated that the same was taken by them when given from the complainant’s side. On perusal of the entire evidence on record, especially the neighbour of the accused and the evidence of the mediator goes to show that there was no demand of dowry at the time of marriage or after the marriage by the accused and most of the trouble started only after the complainant came back and joined accused No.1 in the matrimonial house, while they were residing at 10th Cross, Magadi road. This house is very near to the house of her parents and as per the evidence of accused No.1, the complainant used to threaten the accused, if the relatives of the accused visit their house. Even PWs.1, 2 and 3, in spite of their evidence before the Court, they have not made anything about bringing it to the notice of the elders or well-wishers of the accused to settle their dispute amicably. On the other hand, the evidence of PWs.1 to 4 were purely interested witnesses and while giving evidence, the accused and PW.1 were residing separately. Accused No.1 already filed a matrimonial case against the complainant in MC No.2616/2006. Therefore, there is every possibility of the complainant and her family members giving evidence against the accused in support of their case and improved their version every now and then. Even after granting of divorce by the Family Court, Bengaluru, in the matrimonial case, the complainant has not chosen to challenge the same before the High Court by filing an application. Even though the case under Protection of Women from Domestic Violence Act was dismissed, the same was not challenged by her. The case under the Guardians and Wards Act filed by the accused was also allowed by the Court, which was not challenged by her and the same attained finality.
9. Looking to these aspects, it clearly goes to show that the evidence of the accused or defence and improvements made by the complainant goes to show that only to take revenge against the accused, they have made improved versions implicating this accused. The entire evidence of the prosecution case are all omissions and contradictions only to implicate the accused to see that they are punished by the Court. Even in the matrimonial case before the Civil Court, the complainant has not made any attempt to settle the dispute amicably and reside with accused No.1, which itself shows that revenge is taken from the complainant side to see that the accused is convicted in this case. Even though accused Nos.2 and 3 were all residing far away, they have been implicated in the evidence before the magistrate. Therefore, the First Appellate Court has rightly reappreciated the evidence on record and has come to the conclusion that the prosecution failed to prove the case against the accused beyond all reasonable doubt. Therefore, I do not find any error or illegality committed by the First Appellate Court in acquitting all the accused for the charges levelled against the. Accordingly, I hold that the appeal is devoid of merit and the same is liable to be dismissed. Accordingly, the criminal appeal is dismissed.
SD/- JUDGE mv