Dismissed

Smt Asha v. S G Mallikarjuna

Karnataka HC2 Sept 2013CRL.A/1588/2007

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal challenging the acquittal of the respondents in offences under Sections 498-A IPC and Dowry Prohibition Act. The court held that the evidence of the complainant was inconsistent and the delay in filing the complaint was fatal. The appeal was disposed of due to the appellant's absence during conciliation.

What did the court decide?

Acquittal of respondents affirmed; appeal dismissed. Compromise terms not recorded due to appellant's absence.

Smt Asha Vs S G Mallikarjuna — Dowry and Cruelty | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2013

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL APPEAL No.1588 OF 2007

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BETWEEN:

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Smt. Asha, W/o. S.G. Mallikarjuna, Aged 35 years, Resident of 2^nd Cross, Shastrinagar, Bellary. …APPELLANT

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(By Sri. R.M. Javed, Advocate)

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AND:

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S.G. Mallikarjuna, S/o. Gurupadaiah, Occupation: Development Officer, Department in LIC.

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S. Gurupadaiah, S/o. Kallayya, Aged about 70 years, Occupation: Retired DE in LIC.

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Mahanthamma, W/o. S. Gurupadaiah,

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Major,

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All are residents of Kudaligi Circle, Ramanagar, Hagaribomanahalli Town, District: Bellary.

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Mallaiah, S/o. Rudraiah, Aged about 47 years, Occupation: Engineer.

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Smt. Annapoornamma, W/o. Mallaiah, Major, Occupation: Housewife,

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Respondents 4 and 5 are Residents of Type 5 House No.73, RTPS Colony, Sakthinagar, Raichur.

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Virupakshaiah Virakatmath, S/o. Rudraiah, Major, Occupation: Kirani Business.

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Smt. Sumangala,

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W/o. Virupakshaiah Virakatmath, Major, Occupation: Housewife.

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Respondents 6 and 7 are residents Of Santhe Kallur Village, Taluk: Lingasur,

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District: Raichur.

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Smt. Sharada, Second wife of H.G. Mallikarjuna, D/o. Chandrashekaraiah Hiremath, Major, R/o. Kudaligi Circle, Ramanagar, Hagaribomanahalli Town, District: Bellary.

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…RESPONDENTS

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(By Shri K.L. Patil, Advocate)

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This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 praying to set aside the judgment and order of acquittal dated 23.8.2007 passed by the Additional Civil Judge (Jr.Dn) & JMFC, Bellary, in C.C.No.1374/2004 acquitting the respondents / accused for the offence punishable under Section 498-A read with 149 of the Indian Penal Code, 1860 and Sections 3 and 4 read with Section 149 of the Dowry Prohibition Act and Section 494 read with 109 read with 149 and Section 494 read with 149 of the IPC.

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This appeal coming on for final hearing this day, the Court delivered the following:

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JUDGMENT

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Heard the learned counsel for the appellant and the

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learned counsel for the respondents.

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The appellant is the complainant questioning the

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acquittal of the respondents in the complaint alleging offences

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punishable under Sections 498-A and 494 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity) and under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 (hereinafter referred to as ‘the DP Act’, for brevity). There was a private complaint by the present appellant to the effect that she is a resident of Bellary and she was the legally wedded wife of Accused No.1, namely the Respondent No.1 and their marriage was solemnised at Bellary in the year 1993. She lived with Accused No.1 at their matrimonial home at Bellary and gave birth to a female child Manasa and the child was about 8 years old at the time of the complaint. The respondents 2 and 3 are the father-in-law and mother-in-law of the complainant. Respondents 4 and 6 are the brothers of Accused No.3 and Respondents 5 and 7 are the sisters of Respondent No.1. Respondent No.8 – Accused No.8 is said to be the second wife of the Respondent No.1. Accused No.9 is the mother of Accused No.8 and Accused No.10 was the brother of Accused No.8. Accused No.11 is the cousin of Accused No.8 and

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Accused No.12 was the father of Accused No.11. Prior to the marriage of the complainant, there was a discussion as regards the dowry to be provided and it was alleged that apart from cash, gold ornaments were also to be provided. It was in fact provided to the respondent Nos.1 and 3 to 7. It was claimed that the appellant and Respondent No.1 could hardly live together for about three months and thereafter, the relationship severed on account of the bad habits of Respondent No.1 and his ill-treatment, as he was indulging in drinking and gambling. It was further alleged that Respondents 2 to 7 would instigate Accused No.1 to ill-treat the appellant further, for more dowry. When the ill-treatment was aggravated, it is claimed that the appellant withdrew from the society of Respondent No.1 along with her child and started living with her parents. It is further alleged that in the year 1997, Respondent No.1 was transferred to Hagaribommanahalli and his parents came and settled down with him. Thereafter, there was an attempt at reconciliation by holding a Panchayath, which failed. It is in the year 2002 that

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the appellant came to know of a secret second marriage contracted by respondent No.1 in Kote Malleshwara Temple, Bellary with the active abetment and aid of Respondents 2 to 7 and it is through her father that she came to know of the same. In this background, she instituted a complaint for the said offences. It is in response to that the Respondent No.1 had filed a matrimonial case seeking divorce and the same was pending as on the date of the trial.

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On the case being registered and the sworn statement of the complainant being recorded, process was issued to the accused. They appeared before the court and were enlarged on bail. Thereafter, the appellant having tendered evidence through PW-1 to PW-5, the court thereafter framed the charges for offences punishable under Sections 494, 498-A read with Section 149 and Sections 3 and 4 of the Dowry Prohibition Act, against Accused Nos.2 to 7 and for offences punishable under Sections 498-A read with Section 149 and Sections 3 and 4 of

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the Dowry Prohibition Act against Accused No.8. The charge for the offence punishable under Section 494 read with Section 149 of the IPC came to be framed. The case against Accused Nos.9 to 10 however was challenged before this court in Crl.P.3146/2004, which was quashed. Thereafter, at the instance of the respondents, the witnesses were recalled and were cross-examined on behalf of the complainant. The complainant examined further witnesses PWs 6 to 11 and closed the case. The statement of the accused were recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity) and the court below, after hearing both sides, framed the following points for consideration:

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“1) Whether the complainant proves beyond all reasonable doubt that, the accused no.1 being husband, A-2 and 3 being in-laws, accused No.4 to7 are the nearest relatives of A-1 and accused persons were having common object of ill-treating and harassing the complainant by giving physical and mental cruelty with a view to get money and gold from the parents of

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the PW.1 Asha and the marriage of the accused No.1 with PW.1 was solemnized on 8.12.93 and when PW.1 joined the company of the A-1, the accused No.1 at the instigation of accused No.2 to 7 have subjected the PW.1 to cruelty by abusing her in filthy language and assaulting her and A-1 has addicted bad habits and they have ill-treated PW.1 with a view to get money and gold from parents of the PW1 thereby, the accused have subjected the PW1 to physically and mentally cruelty thereby, the accused committed an offence punishable under Section 498-A read with 149 of IPC?

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Whether the prosecution proves beyond all reasonable doubt that, the accused No.1 to 7 were having common object of getting dowry from the parents of PW.1 and before the marriage of the complainant PW.1 they have demanded 1,00,000/cash, 10 tolas of gold and Rs.5,000/- towards purchase of clothes in the form of dowry. Thereby, the accused committed an offence punishable under Section 4 of the D.P.Act read with Section 149 of the IPC?

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Whether the prosecution proves beyond all reasonable doubt that, the accused No.1 to 7 were having common object of getting dowry from the parents of PW.1 and at the time of marriage, the

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accused No.1 to 7 have received Rs.80,000/- and three tolas of gold from the parents of PW.1 by way of dowry. Thereby, the accused committed an offence punishable under Section 3 of the DP Act read with Section 139 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity)?

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Whether the prosecution proves beyond all reasonable doubt that, the accused No.2 to 7 were having common object of getting second wife to the accused No.1 when the PW.1 who is first wife of A-1 was alive and marriage was subsisting, the accused No.2 to 7 abetted the A-1 and A-8 and they performed the marriage of the A-1 with A-8 thereby A-2 to 7 have committed an offence punishable under Section 494 read with 109 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity)?

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Whether the prosecution proves beyond all reasonable doubt that, the accused No.1 to 8 were having common object of contracting second marriage and from the instigation of accused No.2 to 7 the accused No.1 has contracted the second marriage with A-8 on 21.7.02 at about 10.30 – 11.00 a.m. at Kotemalleshwara temple, Bellary though, the marriage of PW.1 with the A-1 was subsisting. Thereby,

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accused committed an offence punishable under Section 494 read with 149 of the the Indian Penal Code, 1860?

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What order?”

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Insofar as Point No.1 is concerned, on a detailed examination of the evidence, the court found that in the crossexamination of PW-1, she had made several admissions which clearly contradicted the allegations in the complaint insofar as her allegation that the marriage lasted only for about 3 months, whereas there was material placed by the appellant herself which ran counter to this premise and therefore, the court below while finding that there was inconsistency in the evidence of other witnesses as well, held Point No.1 in the negative, since the complaint had failed to bring home the guilt of the accused for offences punishable under Section 498-A read with Section 149 IPC. Insofar as Point Nos.2 and 3 are concerned, the court on an examination of the material evidence in support of the said charges, found that the allegation as to demand for dowry

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is prior to the marriage during the year 1993, whereas the complaint was filed in the year 2002. The delay of more than 9 years was not at all explained. Even otherwise, if the case of the complainant was taken into consideration, the relationship between the Respondent No.1 and the appellant is alleged to have been strained in the year 2001 and thereafter, it is two years later that a complaint was filed without assigning any reason. Therefore, the delay was fatal to the complaint insofar as the offences punishable under Sections 3 and 4 of the DP Act and accordingly, the points were answered in the negative. Insofar as Point Nos.4 and 5 as regards the second marriage of the Respondent No.1 with Accused No.8 was concerned, there was no acceptable evidence of the event of the second marriage having been conducted. In that, there was inconsistency in the evidence of the several witnesses and hence, it was held that the allegations were not proved beyond all reasonable doubt and accordingly, the accused having been acquitted, the present appeal is filed.

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Though several grounds are raised which the learned counsel for the appellant would canvass at length, given the detailed findings of the court below with reference to the contradictions and inconsistencies in the evidence of the several witnesses for the complainant, it cannot be said that the findings of the court below can be faulted. Hence, the appeal fails and is dismissed.

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However, it is also to be placed on record even during

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the pendency of this appeal, the parties were referred to conciliation and there were certain terms agreed upon for a compromise and a compromise petition was also prepared and duly signed by the Respondent No.1. However, the compromise could not be recorded in the absence of the appellant and her daughter who failed to appear before the court even in spite of opportunities being granted. The learned counsel for the appellant would plead helplessness insofar as the compromise being entered into. The terms of the

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compromise contemplated a petition for divorce by mutual consent, apart from certain financial settlement in favour of the appellant.

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In the light of the appellant failing to appear before the

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court, the said terms of the compromise cannot be given effect to. However, it is to be noticed that that Respondent No.1 has volunteered that he would pay a sum of Rs.10,00,000/- (Rupees Ten lakh only) towards the marriage expenses of his daughter Manasa and that the said amount would be kept in a Fixed Deposit in the joint name of the respondent No.1 and his daughter and further, that he would also transfer his house by way of gift to his daughter Manasa, namely the house situated at Gavisiddeshwar Nagar, Hospet measuring 30’ x 50’ and that the rent which would accrue on the house property would be used for the expenses towards the education of his daughter. However, that the house would not be sold till such time Manasa attains majority or till her marriage and further, that he would clear the loan outstanding on the house property and also

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has undertaken to pay the above amounts or to create the Fixed Deposits, before 30.09.2013. This is only placed on record to ensure that in the event there is any claim towards any support and aid from the Respondent No.1 insofar as his daughter is concerned, the Respondent No.1 shall be held bound by such an undertaking insofar as his daughter is concerned. With that observation, the appeal stands disposed of.

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The appellant has also filed an application seeking to adduce additional evidence. Having regard to the merits of the case, the scope for additional evidence is limited when the findings on the basis of inconsistencies would not support the case of the appellant even with any additional evidence, as the defects are indicated of being cured. Therefore, the application is rejected.

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Sd/JUDGE

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Smt Asha v. S G Mallikarjuna

Case brief

What is this about?

What did the court decide?

Smt Asha v. S G Mallikarjuna

Case brief

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What did the court decide?

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