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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)
*****
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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.
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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
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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
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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?
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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.
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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
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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,
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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
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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.
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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
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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.
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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
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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
