Sapna Rohira Vs Mukund Chandi Bammar

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER OF ACQUITTAL DATED 22.04.2017 PASSED BY THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN S.C.NO.425/2013 RECORDED BY THE LEARNED LOWER COURT ACQUITTING THE ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF IPC AND THEREBY CONVICT HIM FOR THE SAME BY IMPOSING MAXIMUM PRESCRIBED SENTENCE.

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HC-KAR

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IN CRL.A NO.749/2017:

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BETWEEN:

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SRI. MUKUND CHANDI BAMMAR SON OF MANSUKHLAL DEV CHAND AGED ABOUT 35 YEARS PRESENTLY R/AT NO.36 1^ST FLOOR, 21^ST CROSS EJIPURA NEAR CHAVERA CHURCH BENGALURU-560 066.

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ALSO AT NO.5 PART (3) BOLANGIR, BOLANGIR TOWN BOLANGIR DISTRICT ORISSA STATE-767001.

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...APPELLANT

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(BY SRI. TOMY SEBASTIAN, SENIOR COUNSEL FOR SRI. RENY SEBASTIAN, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY J.C. NAGAR POLICE STATION BENGALURU-560 006 REPRESENTED BY SPP HIGH COURT BUILDING BENGALURU-01.

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...RESPONDENT

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(BY SMT. RASHMI PATEL, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 22.04.2017 PASSED BY THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, IN S.C.NO.425/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 417 OF IPC.

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THESE APPEALS COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

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The appeal in Crl.A.No.1194/2017 is filed by the complainant for acquittal of accused for the offence punishable under Section 376 of IPC. The other appeal in Crl.A.No.749/2017 is filed by the accused questioning the conviction in respect of the offence punishable under Section 417 of IPC and to pay fine of Rs.5,50,000/-.

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The factual matrix of case of the prosecution is that P.W.1 is aged about 26 years in the year 2008. She came in contact with accused No.1 while they were working in First Source Company and both of them were friends, then it turns to love affair. They used to move out of the city also. In view of their love affair, engagement was conducted by their parents on 21.04.2009. Both the families decided to fix their marriage after 6 months. Due to sudden heart attack of mother of P.W.1,

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the marriage was postponed. Her mother passed away on 21.01.2010 and subsequently, their marriage was postponed.

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In the meanwhile, her sister P.W.3's marriage was also fixed. Even the marriage of accused No.1 with P.W.1 was also scheduled to be held on 06.12.2011. Accused No.1 on many occasions used to take out and on one occasion took her to Manipal Country Resort at Sarjapur Road on 15.10.2011 and in Room No.505 stayed together and on the guise that marriage was fixed, he had sexual intercourse with her forcibly without her consent and persuaded her to give consent only on the ground that within 2 or 3 months they are going to marry and hence, sexual act has taken place. It is also the case of the prosecution that thereafter, the accused No.1 without informing her got transferred to Mumbai and in the month of November, 2011 he was in Calcutta. Accused Nos.1 to 3 tried to extract money from family of P.W.1 demanding an amount of Rs.25,00,000/- when they went to Calcutta to extend the invitation and illegal demand of dowry was also continued. Thereafter, cheated her in breaking up the marriage and hence, complaint was lodged subsequent to breaking down of the marriage. Hence, police registered the case, investigated the matter and filed the charge sheet for the offence punishable

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under Sections 420 and 376 of IPC and Section 4 of Dowry Prohibition Act for demand of dowry.

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The charge sheet was submitted and case was committed to Court of Session. The case was exclusively triable by Court of Session. On receiving the records, case was registered as S.C. and made over to the Court. Heard the respective counsel for the accused and also learned HCGP for the State and charges were framed and accused did not plead guilty and claimed for trial.

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The prosecution examined the witnesses P.Ws.1 to 9 and got marked the documents as Exs.P1 to P19(a) and got marked M.Os.1 and 2. On the other side, defence got marked the documents as Exs.D1 to D6. On closure of evidence, 313 statement of accused has been recorded and accused has not led any defence evidence.

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The Trial Court having considered both oral and documentary evidence comes to the conclusion that there was no ingredients of offence under Section 420 of Cr.P.C. that at the inception, the accused cheated P.W.1 and also with regard

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to offence under Section 376 of Cr.P.C. comes to the conclusion that it was not a forcible sexual act and also comes to the conclusion that it is a case of invoking the ingredients of offence under Section 417 of Cr.P.C. and ordered to pay an amount of Rs.5,50,000/- to P.W.1 by way of compensation for break up of marriage at the fag end i.e., in the month of November, since marriage was already fixed and the same was postponed. Being aggrieved by the acquittal of the accused for the offence under Sections 420 and 376 of IPC, an appeal is filed by the victim P.W.1 in Crl.A.No.1194/2017 and this Court admitted the same.

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Learned counsel appearing for the appellant i.e., Amicus Curiae in Crl.A.No.1194/2017 by filing synopsis would vehemently contend that both accused and P.W.1 are colleagues and they were working in the very same office and then they became friends and then it turned as a love affair and engagement was also made on 21.04.2009. She also contend that mother of the complainant P.W.1 passed away on 21.01.2010 and in view of sudden death of mother, marriage was also postponed and delayed and subsequently, marriage

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date is fixed as 06.12.2011. She would submit that on account of birthday of the accused, he took her to Manipal Country Resort on 15.10.2011 and subjected her for sexual intercourse without her consent and the same was a forcible sexual act under Section 376 of IPC. She would also submit that on account of sexual act, she became pregnant and he got aborted the same. It is also the contention that even though he got aborted the pregnancy of P.W.1 and in the meanwhile, marriage was fixed and invitation cards are printed and distributed and then only, they demanded Rs.25,00,000/- as dowry and also a car and father was not in a position to give the same and also explained that there was no demand earlier. She would further submit that accused also in the meanwhile got transferred to Mumbai without informing to P.W.1 and switched off the mobile phone. She would submit that in order to substantiate these allegations, P.Ws.1 to 9 are the witnesses, who have been examined and Exs.P1 to P19(a) are marked. Though, Exs.D1 to D6 are marked, but Trial Court not properly appreciated the same.

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She would submit that Trial Court erroneously committed an error in imposing only one year rigorous imprisonment for the offence under Section 417 of IPC. She would contend that Section 376 of IPC was not considered and also brought to notice of this Court the evidence available on record i.e., the evidence of P.W.1, wherein she has narrated as to how an incident has taken place on 15.10.2011. Even though she had refused to give consent, she was persuaded and committed the offence forcibly. She also relies upon the evidence of Doctor i.e., P.W.4 and submits that P.W.1 was subjected to sexual act, even though there was no recent sign of sexual act.

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Learned counsel appearing for the appellant i.e., Amicus Curie would contend that the evidence of P.W.9 is very clear with regard to the fact that accused as well as P.W.1 went to Resort and the evidence of the Receptionist, who was working in the Resort from the last 6 years categorically deposed and identified the accused as well as P.W.1 that both of them stayed there and vacated the room. She would contend that evidence of P.W.1 is very clear that a demand was made

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to pay an amount of Rs.25,00,000/- and the Court also has to take note of the conduct of accused, since he cheated P.W.1. Hence, ingredients of offence under Section 420 of IPC also attracts. She also submits that Ex.P5 is the document i.e., register maintained by the Manipal Country Resort and the same is evident with regard to the fact that both of them stayed together and subsequently, he turned hostile and did not marry P.W.1 and marriage was broken at the instance of the accused.

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Learned HCGP appearing for the State would

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contend that the accused was not having any intention to marry her and only subjected her for sexual act and thereafter given one or the other reason for breaking the marriage. She would also contend that even Court can look into the tenor of cross-examination while cross-examining the P.W.1 suggesting that number of persons were in contact with her and she had affairs with them which has been forged, but the same has been denied. Hence, the Court can invoke Section 420 of IPC.

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Per contra, Sri. Tomy Sebastian, learned Senior counsel appearing for respondent Nos.1 to 3 in

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Crl.A.No.1194/2017 would vehemently contend that complaint was given on 13.04.2012. Ex.P1-complaint averments is missing with regard to forcible sexual act. He also brought to notice of this Court that Domestic Violence Act proceedings was initiated on 16.07.2013 and affidavit was also filed on 30.08.2013 and also claimed the order of maintenance and at the first instance, a sum of Rs.5,000/- was awarded and subsequently, it was enhanced to Rs.10,000/. Hence, it is very clear that the very intention of P.W.1 was to extract money from the accused and collected the money from the accused for about 4 to 5 years and ultimately, DV proceedings was dismissed. Learned Senior counsel also brought to notice of this Court the contents of exhibit 8D9 series, particularly the rejoinder at Ex.D5 and statement of objections was also filed by accused and he would contend that marriage of P.W.3 was held on 14.11.2011 and this marriage was also attended by accused Nos.1 to 3 in Bangalore and the same clearly discloses that there was no such demand of dowry of Rs.25,00,000/- and the same is created.

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He would also further contend that complaint was given after 4 to 5 months of breaking up of marriage and complaint was not given immediately which discloses the intention of the complainant. The counsel also brought to notice of this Court Ex.P1-complaint and there is no forcible sexual act and nothing is stated and the evidence is only an improvement. The counsel also would contend that demand of dowry is nothing but unnatural and when the engagement occurred in 2009, question of demanding the dowry of a sum of Rs.25,00,000/- in 2011 cannot be accepted. It is also borne out from the records that they also went to Culcutta and their case is that they demanded the dowry amount and the same cannot be accepted which is far from truth. Even, the counsel would contend that ingredients of Section 417 of IPC also cannot attracts. Hence, prayed the Court to allow the appeal filed by the accused in Crl.A.No.749/2017 and set aside the conviction and sentence.

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Having heard learned counsel for the appellant i.e., Amicus Curie in Crl.A.No.1194/2017 and learned Senior counsel for the appellant in Crl.A.No.749/2017 and learned HCGP for

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the State and having considered the material available on

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record, the points that would arise for our consideration are:

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(1) Whether the complainant has made out the ground to allow the Crl.A.No.1194/2017 to set aside the judgment of Trial Court acquitting the accused for the offence punishable Sections 420 and 376 of IPC and to convict and sentence for the said offences?

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(2) Whether the appellant in Crl.A.No.749/2017 has made out the ground to set aside the judgment of conviction and sentence for the offence punishable under Section 417 of IPC?

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(3) What order?

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Point Nos.(1) and (2):

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Having considered the grounds which have been urged in both the appeals as well as the evidence available on record, we have taken up both the matters together for consideration and the grounds which have been urged in both the appeals are interlinked with regard to proving the factual aspects as well as material available on record with regard to invoking the offence under Section 417 of IPC as well as Sections 420 and 376 of IPC. No doubt, Section 417 of IPC was

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not invoked by the prosecution at the time of filing the charge sheet, however invoked Section 420 of IPC on the ground that the accused had cheated the complainant. Having considered the ingredients of respective offences as well as material available on record, it has emerged during the course of evidence with regard to the charges levelled against the accused persons. It is not in dispute that both the accused as well as P.W.1 were working together at the first instance in 2008. It is also not in dispute that both of them were friends and subsequently, it has turned into love affair and engagement had also taken place between P.W.1 and accused No.1 on 21.04.2009.

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It is also important to note that when the proceedings were initiated under the Domestic Violence Act, specific narration was made with regard to the fact that both of them were in live-in relationship. It is also important to note that when the objection was filed by the accused, there was an admission with regard to engagement which had taken place on 21.04.2009. It is also important to note Ex.P1-complaint and its recitals and as rightly pointed out by learned Senior counsel

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appearing for the accused, there was no averment with regard to forcible sexual act on particular date i.e., on 15.10.2011. However, in the oral evidence of P.W.1, an improvement is made with regard to particular date of incident is concerned. It is also important to note that Section 4 of Dowry Prohibition Act was invoked for demand of dowry since for the first time it was introduced that demand was made when they visited Culcutta. The material also discloses that there was engagement in the year 2009 itself. It is also specifically pleaded by P.W.1 that marriage was postponed due to sudden death of her mother and subsequently, marriage date was fixed as 06.12.2011. It is also not in dispute that marriage of her sister i.e., P.W.3 was also fixed on 14.11.2011 and also extended the invitation to the family members i.e., accused Nos.1 to 3 and they also had been to Culcutta, but demand was made in 2011. It is not in dispute that when there was engagement in the year 2009 and also when the family members came to know that they were in love affair and both of them are living together, engagement was performed in the year 2009 itself. Hence, there is a force in the contention of learned Senior counsel appearing to for the appellant that it was unnatural that demand was made in 2011,

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that too, when they went to extend the invitation on 08.11.2011. If really there was a dowry demand in respect of the marriage and the same ought to have been made in between 2009 to 2011.

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It is also important to note that even when the said theory was set up by the prosecution, even subsequent to the demand as alleged, the accused Nos.1 to 3 also attended the marriage of P.W.3, whose marriage was performed on 14.11.2011 and remaining period for performing the marriage of P.W.1 with accused is only around 20 days from 14.11.2011 to 06.12.2011. When such being the case, no doubt with regard to Section 376 of IPC is concerned, there is no iota of evidence that it was forcible act and apart from that, with regard to the offence under Section 4 of the Dowry Prohibition Act also, the Trial Court taken note of the material available on record, particularly in paragraph No.22 of the judgment that P.W.3 marriage was also attended by accused Nos.1 to 3 and also it is an admitted fact that accused Nos.1 to 3 attended the marriage of P.W.3 and the circumstance also creates the suspicion about the case of the prosecution that there was a

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dowry demand made by accused Nos.2 and 3, as there was no such demand from 2009 to 2011. It is also important to note that it is the case of the prosecution that when dowry demand was made, one Mr. Ashok, who is the uncle of P.W.1 was also present. But, the uncle Mr. Ashok was not examined before the Trial Court to prove the demand of dowry and the same goes against the prosecution and there is no satisfactory evidence found on record with respect to dowry demand by accused Nos.1 to 3 suddenly, though the marriage date of accused No.1 and P.W.1 was scheduled to be held on 06.12.2011 and detailed discussion was made. Even in paragraph No.23 also, the Trial Court observed that, admittedly P.W.1 opened a beauty parlour, for which she raised the loan from the bank. Hence, it is very clear that she started beauty parlour at the time of engagement itself.

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It is relevant to note that, in order to invoke Section 376 of IPC, the Apex Court has held that when two adults are residing together and there was a live-in relationship between the parties, there cannot be invoking of offence under Section 376 of IPC. The Apex Court further held that, if two adults live

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together in a relationship (like a married couple) for a long time like over two years it usually means they are in that relationship by choice, not because of any false promise to get married. Even on perusal of documents at exhibit 8D9 series which were marked by the defence, it clearly discloses that P.W.1 has stated that they were in live-in relationship and both of them were living together. When such being the case, they had even signed a document saying they loved each other and would get married. Hence, it did not seem like the woman was forced or tricked into the relationship and continuing the criminal case would be a waste of time and misuse of law. Therefore, the Court cancelled the case and said Courts should not treat live-in relationships like something wrong or unusual anymore, especially when both the people are adults and living together by choice. In the case on hand also, both P.W.1 and accused No.1 are adults and were living together. But, when the marriage was broken, the dispute of marriage was converted as a criminal case. Hence, we do not find any force in the contention of prosecution that it attracts Section 376 of IPC and case of the complainant cannot be accepted.

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Now coming to the aspect of invoking Section 417

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of IPC by the Trial Court, learned Senior counsel appearing for the appellant in Crl.A.No.749/2017 would vehemently contend that the Trial Court not formed any opinion with regard to the ingredients of offence under Section 417 of IPC and also brought to notice of this Court that in paragraph No.26, discussed in length and taken note of the evidence of P.W.1 and other evidence is not reliable with regard to Section 376 of IPC is concerned, including the evidence of P.Ws.2 and 3. Admittedly, engagement was performed and as per her own version, she used to stay with him, many times went out and spent good time. Merely because of some differences arose between them, marriage was broken and also taken note of the fact that consent of P.W.1 appears to be free consent not under misconception and also discussed that it is a consensual act. But, the fact is that marriage was fixed and engagement was made in the year 2009 and even after the engagement in the year 2009, they continued in live-in relationship. But ultimately, the marriage was broken and the Court has to take

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note of the demeanor of the witness as well as the defence

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taken by the accused during the course of cross-examination.

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No doubt, P.W.1 admitted with regard to earlier love affair with one Mr. Deepesh Modi, instead of marrying her, he married some other girl. But, the same was denied. But, the fact is that, she also admits that she made an attempt to commit suicide and she took treatment in Devine Hospital on account of consumption of sleeping tablet. But, she made an attempt to commit suicide, since she could not deposit the bank amount and this was prior to accused coming in contact with P.W.1 prior to 2008. But, accused came in contact in 2008 and thereafter, love affair was developed between them and marriage was fixed and engagement was also made and the fact that accused also went to Mumbai and again he came back to Bangalore is not in dispute and also the fact that accused and P.W.1 stayed in Manipal Country Resort is also not in dispute. The evidence of the Doctor is very clear that she was subjected to sexual act. Apart from that, P.W.9 categorically deposes and identifies the accused as well as the victim P.W.1 that both of them stayed in the said Manipal Country Resort

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and Ex.P5 is very clear that room was booked by the accused himself as husband and wife and when both of them stayed and even when he gave the details that both of them are husband and wife while booking the room, the Court has to take note of the same which clearly shows that accused took P.W.1 to the room. But, though an attempt is made by the Amicus Curiae that she was not aware of the same, the evidence emerges that when he went to hotel, by that time, she was sitting in the car and accused himself went to hotel and thereafter, he took P.W.1.

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Having taken note of all these factors into

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consideration and also the fact that invitation cards were printed and distributed and even marriage was fixed i.e., P.W.3 as well as P.W.1 and marriage of P.W.3 was also performed in Bangalore and the same is attended by accused Nos.1 to 3 and subsequently, the marriage was broken, the Court has to take note of the intention of the accused when he stayed along with P.W.1 and took her to different places and stayed together and when the marriage was broken, the very contention of learned Senior counsel for the appellant in Crl.A.No.749/2017 i.e.,

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accused that marriage was broken at the instance of P.W.1 is not substantiated by placing any material before the Court. But, the fact is that marriage was fixed and the cards were printed and even invited the relatives for the marriage and suddenly, it was broken and marriage was not performed.

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No doubt, learned Senior counsel appearing for the

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accused would contend that complaint was given after 4 months, the Court also cannot expect lodging of complaint immediately by the complainant, when P.W.1 was under trauma with regard to cancellation of marriage and when she was subjected to sexual act by the accused and the delay of 4 months cannot be a delay and the same not goes to the very root of the case of the prosecution. Hence, we do not find any ground to reverse the findings of the Trial Court with regard to Section 417 of IPC and also awarding of compensation of Rs.5,50,000/- to P.W.1, since all arrangements for marriage was made and even engagement was also performed in 2009 and subsequently, the date is also fixed for marriage and choultry is also booked i.e., Hotel Capital and thereafter, printed the card and distributed the same. When such material

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is available on record, we do not find any ground to even interfere with regard to compensation is concerned and there was an evidence with regard to subjecting her for sexual act and medical evidence supports the case of prosecution that she was subjected to sexual act prior to her marriage and thereafter, marriage was broken. Accordingly, we answer point Nos.(1) and (2) as 8negative9 and the material available on record is appreciated by the Trial Court in a proper perspective. Hence, it is not a case for setting aside the conviction and sentence and also not a case for reversal of the judgment of the Trial Court for the offence punishable under Sections 376 and 420 of IPC and Section 4 of Dowry Prohibition Act and mistakenly, Section 4 of Dowry Prohibition Act was invoked and Section 3 attracts, if it is a demand prior to marriage.

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Point No.(3):

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