Ravi S/O. Mogannagowda vs The State Of Karnataka on 18 September, 2014

Karnataka High Court
Ravi S/O. Mogannagowda vs The State Of Karnataka on 18 September, 2014
Author: Anand Byrareddy
                              1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

   DATED THIS THE 18TH DAY OF SEPTEMBER 2014

                            BEFORE
   THE HON'BLE MR.JUSTICE ANAND BYRAREDDY

           CRIMINAL APPEAL NO.487 OF 2009

Between:
Ravi S/o Mogannagowda
Aged about 34 years
Occupation: Petty business
R/o House No.169, Police Colony
Beeranahallikere, Hassan
Present Address:
House No.211, Hemavathi Extention
13th Ward, Krishnarajpet
Mandya District                        ... Appellant

(By Shri R.B.Deshpande, Advocate)


And:
The State of Karnataka by
Extention Police Hassan              ... Respondent

(By Shri K.R.Keshavamurthy, SPP1)
                             *****
                                2

       This Criminal Appeal is filed under Section 374(2)
Cr.P.C praying to set-aside conviction and sentence dated
05.06.2009 passed by the Principal Sessions Judge, Hassan in
Sessions Case No.33/2004 - convicting the appellant/accused
for the offence punishable under Section 498-A, 313 and 506 of
IPC and the appellant/accused sentenced to undergo rigorous
imprisonment for a period of three years and shall sentenced to
pay fine of Rs.2,000/- for the offence punishable under Section
498-A of IPC and in default of payment of fine, he shall further
undergo simple imprisonment for a period of two months, he
shall undergo rigorous imprisonment for a period of ten years
and shall sentenced to pay fine of Rs.10,000/- for the offence
punishable under Section 313 of IPC and in default of payment
of fine, he shall further undergo simple imprisonment for a
period of two years, and he shall undergo rigorous
imprisonment for a period of three years and shall sentenced to
pay fine of Rs.3,000/- for the offence punishable under Section
506(II) of IPC, and in default of payment of fine, he shall
further undergo simple imprisonment for a period of three
months. All the sentences award shall run concurrently. The
appellant/accused prays that he be acquitted.

      This Appeal coming on for hearing this day, the Court
delivered the following:-

                         JUDGMENT

Heard the learned counsel for the appellant and the

learned State Public Prosecutor.

3

2. The appellant was accused No.1 along with his parents

who were accused Nos.2 and 3, respectively. The complainant

was the wife of accused No.1, to whom he had been married as

on 3.6.1996. It was alleged that at the time of her marriage, her

father, B.R.Gowda, had provided dowry in terms of cash of

Rs.1,15,000/- and had provided gold jewellery weighing 100

grams. Even after having received the same, the accused had

insisted on she bringing additional dowry in terms of cash and

also to obtain a transfer of a house standing in the name of her

mother in favour of the accused and it is claimed that this

harassment and demands caused a lot of physical and mental

agony to the complainant from 3.6.1996 till 3.3.1997, when

apparently, she withdrew from the society of the accused. It is

further claimed that when she was pregnant with a child, she

was forced to undergo abortion, while ensuring that she was

unconscious. It is alleged that she was administered a drug and

when she was in an unconscious state, the child was aborted
4

and further there were constant threats of putting her to death.

It was particularly alleged that accused No.1, in the presence of

his brother and sister-in-law, had threatened to burn her alive.

It is on these allegations that a case was registered against the 3

accused for offences punishable under Sections 498-A, 313,

506 read with Section 34 of Indian Penal Code, 1860

(hereinafter referred to as “IPC” for brevity). Though the FIR

was registered including for the offences punishable under

Sections 3 and 4 of the Dowry Prohibition Act, 1961, the

charge sheet did not include those provisions. The charge sheet

having being filed after further investigation by the police and

after further proceedings and the Court having framed charges,

the accused had pleaded not guilty and after having recorded

the statement of the accused under Section 313 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C”

for brevity) and after hearing the arguments of the counsel for

the parties, the court below had framed charges. The
5

prosecution had then tendered evidence through PWs.1 to 12

and had got marked several exhibits in order to prove the case

against the accused.

3. After hearing the parties and the counsel for the accused,

the court below framed the following points for consideration:

“1) Does the prosecution prove that, the accused
were given physical as well as mental
harassment to the complainant Sulochana in
order to bring additional dowry from her
parents’ house despite of received dowry in
terms of cash and gold jewelleries and thereby
committed an offence punishable under Section
498-A read with Section 34 of Indian Penal
Code?

2) Does the prosecution prove that, the accused
have forcibly got abortion of the complainant
Sulochana without her consent and thereby
committed an offence punishable under Section
313 read with Section 34 of Indian Penal Code?

6

3) Does the prosecution prove that the accused
have committed an offence punishable under
Section 506 read with Section 34 of Indian
Penal Code by causing criminal intimidation
saying that as to do away her life by dousing
the kerosene and also made her as a prostitute?”

4. The court below has answered all the points in

affirmative, insofar accused No.1 is concerned and in the

negative, insofar as accused 2 and 3 are concerned and has

convicted accused No.1 and sentenced him to imprisonment for

a period of 3 years and to pay a fine of Rs.2,000/- for the

offence punishable under Section 498-A IPC and to undergo

rigorous imprisonment for a period of 10 years and to pay a fine

of Rs.10,000/- for the offence punishable under Section 313

IPC and to undergo imprisonment for a period of 3 years and to

pay a fine of Rs.3,000/- for the offence punishable under

Section 506 (II) IPC. It is that which is under challenge in the

present appeal.

7

5. The learned counsel for the appellant would point out

that there is an inordinate and inexplicable delay in filing the

complaint before the police and in the FIR reaching the

jurisdictional Magistrate and this delay would certainly explain

the false case that is sought to be concocted against the

appellant with the active connivance of PWs.4 to 7 who were

all her close relatives, namely, her parents and her sisters. The

court below has placed reliance only on the evidence of those

witnesses, which could not have been acted upon. The learned

counsel would point out that the admitted position is that the

complainant lived in her matrimonial home for a period of 9

months and even during that period of 9 months, she was

constantly visiting her parental home and remaining there and

intermittently coming back to her matrimonial home and had

ultimately withdrawn from the society of the appellant. As on

the date of tendering evidence, she had remained apart from the

complainant for a period of 11 years and by that time, the
8

marriage stood dissolved, on the complainant herself having

filed a petition for divorce. This would indicate that the

complainant has lodged the complaint out of sheer spite. As is

evident from the record, no case was made out against the

parents of accused, as found by the trial court. It is only on the

basis of evidence of PWs.3 to 7 that the court has convicted the

present appellant. In this regard, he would submit that insofar

as the alleged offence punishable under Section 498-A is

concerned, the burden was heavy on the prosecution to

establish that the appellant had meted out cruelty to the

complainant of a degree that would have driven her to commit

suicide. From the allegations made, it is clear that they are at

best self-serving and not supported by any cogent evidence to

corroborate the same. The complainant has even admitted that

there was no physical violence at any point of time meted out to

her. Therefore, the oral demands said to have been made by

accused No.1, is not even claimed by any of the witnesses,
9

namely, PWs.4 to 7 as regards, any such demand being made

by the parents of the appellant, which would have been the

normal course of conduct in the family seeking additional

dowry, as sought to be made out by PW3. This significant

circumstance is overlooked by the court below and the

allegations being made solely against accused No.1 of

continuous demands for dowry, therefore, was not to the

hearing or in the presence of any of the witnesses and it is on

the basis of information which may have been provided by the

complainant that the other witnesses have purportedly stated

about the alleged cruelty meted out to the complainant. The

learned counsel would take this Court through the record to

demonstrate that the allegations in the complaint have been

vastly varied and magnified in the course of evidence of the

complainant herself and the fact that the other witnesses,

namely, PWs.4 to 7 have tried to match her allegations, word

for word, would be an indication that it was a got up case, only
10

initiated to cause harassment and torture to the appellant and his

family. Hence, to establish a case for an offence punishable

under Section 498-A, which has visited the appellant with

stringent punishment now imposed by the trial court, the burden

was heavy on the prosecution, which cannot be said to be

discharged on the basis of evidence of PWs.3 to 7 and in this

regard, the learned counsel would also take this Court through

the rather lengthier judgment of the Trial Court, which merely

reiterates the statements made by the several witnesses in

ultimately concluding that the offence punishable under Section

498-A has been established. The further claim that there were

constant threats to her life and that accused No.1 especially,

threatened to do away with her life and put her out as a

prostitute, are self-serving claims which have not been

corroborated by independent witnesses.

11

6. Insofar as the allegation of causing abortion against the

will of the complainant is concerned, there is no mention of the

same in the complaint. However, it is only during the course of

her evidence that she has embarked to make allegations on the

appellant. But, however, it was included in the charge sheet,

possibly on a subsequent statement made by the complainant.

Insofar as the said allegation is concerned, in any case, it is not

established by any cogent evidence. The medical practitioner

who is said to have carried out the abortion has been examined

as PW10. Though the court below has referred to the

examination-in-chief, as regards the abortion having been

carried out on the complainant, the cross-examination where it

has been elicited as to the manner and the occasion for

performing such a procedure has been overlooked. In that, it

was the opinion of the medical practitioner herself that in view

of improper development of the feotus, it was necessary to

cause abortion and it was with the consent of the complainant
12

that such a procedure was carried out. This has been elicited

from PW10 – the medical practitioner. Therefore, the claim of

the complainant to the effect that she was first rendered

unconscious and thereafter the procedure was carried out on her

to abort the feotus is a wild allegation, which has been made as

an after thought, as is evident from the fact that the allegation

does not figure in the complaint, but has been incorporated in

the charge sheet as an after thought. Hence, the finding of the

court below that the appellant was guilty of causing such

abortion and having been imposed a harsh punishment of 10

years in respect of the same, is not based on any positive

evidence. On the other hand, in the face of evidence that there

was no such occasion for the medical practitioner to carry out

abortion on an unconscious woman. The court below has

proceeded to impose punishment, which results in a miscarriage

of justice.

13

7. The allegations insofar as the offence punishable under

Section 506 IPC, is nothing but a fall out of the allegations

made in respect of offence punishable under Section 498-A.

When that has not been proved with any degree of proof, it

cannot be said that the threats to the life and limb of the

complainant has been held out by the accused, as claimed in the

absence of satisfying corroborating evidence. Therefore, on a

close examination of the record and the even lengthier

judgment of the trial court, it is clear that except the evidence of

PWs.3 to 7, there is no evidence of any independent witness as

regards the commission of any offences as against accused

No.1. More particularly, when the allegations were common as

against accused 1 to 3, the court below having been found that

no case was made out insofar as accused 2 and 3 are concerned,

it is indeed inexplicable that the court has been able to conclude

that the prosecution has established its case against accused

No.1 beyond all reasonable doubt. This is indeed not tenable
14

and therefore, cannot be said on the basis of the material

evidence on record that there was such a degree of cruelty

meted out to the complainant and that the accused had gone to

the extent of forcibly having the complainant abort her child are

established beyond all reasonable doubt.

8. Consequently, the appeal is allowed. The judgment of

the court below, insofar as it convicts accused No.1, is set aside.

Accused No.1 is acquitted. The bail bond stands cancelled.

The fine amount, if any, paid by the appellant shall be refunded

to him.

Sd/-

JUDGE

AHB

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