State of Karnataka Vs Sri. L J Manjunatha Swamy

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF THE CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OR ACQUITTAL DATED 21-3-2019 PASSED IN SESSIONS CASE NO.138 OF 2011 ON THE FILE OF LEARNED PRINCIPAL SESSIONS JUDGE, HASSAN IN SO FAR AS IT RELATES TO ACQUIT THE RESPONDENTS/ACCUSED NO.1 AND 3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT AND SECTIONS 498-A, 313 AND 323 R/W SECTION 34 OF IPC.

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THIS CRIMINAL APPEAL, COMING ON FOR FINAL 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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JUDGMENT

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Heard Smt. Rashmi Patel, learned HCGP appearing on behalf of the appellant/State and also learned counsel appearing for respondent Nos.1 and 2/accused Nos.1 and 2.

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This appeal is filed against the judgment of acquittal dated 21.03.2019 passed in S.C.No.138/2011 by learned Principal Sessions Judge, Hassan acquitting the respondents/accused Nos.1 and 3 for the offences punishable

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under Sections 498A, 313 and 323 r/w Section 34 IPC and

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Sections 3 and 4 of Dowry Prohibition Act.

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The case of the prosecution is that accused No.1 married CW.1 Dhanalakshmi on 12.05.2008 and at the time of marriage, on demand, accused Nos.1 to 3 received ₹2,50,000/in cash and 47 grams of gold jewelry, a suit and other clothes as dowry to accused No.1, apart from 300 grams gold given to CW.1 and thereby committed an offence under Section 3 of the Dowry Prohibition Act and subsequent to the marriage also, they demanded money and invoked Section 4 of Dowry Prohibition Act and so also, PW.1 Dhanalakshmi was subjected to cruelty both physically and mentally. It is further case of the prosecution that when PW.1 was pregnant, she had an abortion as accused No.1 kicked on her womb, which led to her miscarriage and accused Nos.2 and 3 assaulted PW.1 with their hands and voluntarily caused hurt to CW.1 and thereby accused Nos.1 to 3 committed the offences punishable under Sections Nos.313, 323 read with 34 of IPC. Based on the complaint, at the first instance, the case was registered against seven accused persons in the FIR and on completion of investigation,

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charge sheet was filed only against accused Nos.1 to 3 and the

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case against accused Nos.4 to 7 was dropped. Accused Nos.1 to 3 were secured, they did not plead guilty and claimed trial. Hence, the prosecution relied upon the evidence of PW Nos.1 to 13 and 18 documents Exs.P1 to P18 were got marked. On behalf of the accused persons, Exs.D1 to D19 were marked. The trial Court having considered that when an application is filed under Section 319 of Cr.P.C to include accused Nos.4 to 7, after hearing both sides, dismissed the application. Questioning the same, the State preferred Criminal Revision petition in Crl.R.P.No.22/2017 and the same was also dismissed. Thereafter, accused Nos.1 to 3 were subjected to trial only against the offences alleged against them.

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The trial Court, having considered both oral and documentary evidence and particularly taking note of the fact that the marriage of PW.1 and accused No.1 had taken place in the year 2008 and the disputes between them had arisen within a span of six months therafter and PW.3, who is a witness to the spot mahazar Ex.P12, has turned hostile and relied upon the evidence of other witnesses, however, none of the

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independent witnesses were examined before the Court. The trial Court has also taken note of the evidence of PW.10 Doctor, who has treated the victim, when she was taken to the hospital by accused No.1 and her elder brother for her pregnancy of one month and 10 days, who had complained off only stomach pain and the Doctor had issued the Medical certificate-Ex.P15. The trial Court has also taken note of the fact that when the patient complains injury by assault of any other person, the same would be noted in the MLC register and the same would be informed to the concerned police and that neither the patient nor her brother has disclosed that the patient was assaulted by her husband.

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Further, the trial Court in paragraph No.34 has discussed on Ex-D1, an agreement entered between accused No.1 and PW.1 and the signatories to the said document admitting the contents of Ex.D1 and Ex-D2 another agreement entered between accused No.1 and PW.1. The recitals of the said documents were marked in paragraph Nos.34 and 35. In paragraph No.37 with regard to the offences alleged against the accused persons is concerned, the trial Court comes to the

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conclusion that there is no independent evidence about the demand and acceptance of dowry by the accused prior to marriage and demand of additional dowry subsequent to marriage. In paragraph No.38 also with regard to invoking of Section 498A IPC, contents of the document of Ex.D1 was taken note of by the trial Court and in respect of offence under Section 313 of IPC, in paragraph Nos.39, the trial Court discussed that evidence of the Doctor and in para 40 held that the evidence of the Doctor does not inspire the confidence of the Court and having assigned reasons, particularly, in paragraph No.50, the trial Court took note of the fact that though the relatives of PW.1 who supported the case, have not

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given evidence consistently and that though PW.1 had an opportunity to disclose that she suffered abortion when accused No.1 kicked on her stomach, has not disclosed the said fact to the Doctor and the 'D' series of documents, which were produced by the accused, were also taken note by the trial Court, wherein PW.1 clearly admitted all the details given in Ex.D16 and that she has given birth to a child after she started living separately from accused No.1. She has also admitted the photographs confronted to her and that she had filed several

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complaints against accused No.1. The father of PW.1 had also given complaints against accused persons and the relationship between accused No.1 and PW.1 was strained. The trial Court having assessed both oral and documentary evidence comes to the conclusion that the case registered against the sisters of accused No.1 was also dropped and held that the evidence on record does not inspire the confidence of the Court to hold the accused persons have committed the offences alleged against them and acquitted the accused. Being acquitted by the said acquittal order, the present appeal is filed by the appellant/State.

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Learned H.C.G.P Smt. Rashmi Patel, appearing for the appellant/State in her argument would vehemently contend that there is no dispute with regard to the marriage of accused No.1 with PW.1 is concerned and also with regard to both of them living separately. However, she would submit that when the demand was made by accused Nos.1 to 3, they have received ₹2,50,000/- in cash, 47 grams of gold jewelry as dowry, a suit and other clothes apart from 300 grams of gold jewely, which were given to PW.1. It is also contended by her

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that after the marriage of accused No.1 with PW.1, PW.1/ complainant lived with accused No.1 only for 15 days in the matrimonial home and thereafter, accused Nos.1 to 3 insisted her to bring additional dowry of ₹5,00,000/- and the same was spoken to by the prosecution witnesses, which has not been considered by the trial Court. Further, the trial Court without considering these aspects acquitted the accused on the ground that the witnesses are related and interested witnesses. PW.5 is the father of the complainant. PW6 to PW9 are the relatives of respondents/accused and complainant, who have also supported the case of the prosecution and their evidence is corroborative to each other. PW.10 is the Medical Officer, who has certified that PW.1 has suffered incomplete abortion and issued certificate in terms of Ex.P16. She further submits that when all these materials were available on record, the trial Court committed an error in acquitting the accused and hence it requires interference of this Court to set aside the judgment of acquittal and punish the accused for the offences punishable under Sections 498A, 313, 323 r/w 34 IPC and Sections 3 and 4 of Dowry Prohibition Act.

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6. Learned counsel appearing for the

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respondents/accused Nos.1 and 3 would vehemently contend that the trial Court considering both oral and documentary evidence on record held that there is inconsistency in the evidence of the prosecution witnesses except that of the related witnesses with regard to demand and acceptance and also demand of further dowry is concerned. Further, the trial Court held that even considering the medical evidence of PW.10 Doctor, no history was given with regard to any assault made by the accused, which had resulted in abortion. Learned counsel brought to the notice of this Court to paragraph No.50 of the judgment of the trial Court, wherein the trial Court discussed in detail the sum and substance of case of the prosecution and acquitted the accused and submits that the judgment passed by the trial Court does not require any interference of this Court.

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Having heard learned H.C.G.P appearing for the appellant/State and also learned counsel appearing for the respondents/accused Nos.1 and 3 and also considering the oral

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and documentary evidence, the points that would arise for our consideration are:

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Whether the trial Court committed an error in acquitting the accused?

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Whether the prosecution has proved the guilt of the accused persons beyond reasonable doubt? and

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What order?

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Reg: Point Nos.1 and 2

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Having heard learned counsels on both sides and also on perusal of the material on record, it is not in dispute that the marriage of accused No.1 with PW.1 had taken place in the year 2008 i.e., on 12.05.2008 and the disputes arose between them within a span of six months from the date of their marriage. The complaint was lodged on 09.02.2009, case was registered, investigation was conducted and the offences under Sections 498A, 313, 323 r/w 34 IPC and Section 3 and 4 of Dowry Prohibition Act were invoked.

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Having re-assessed both the oral and documentary evidence available on record, it is seen that PW.1,

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Dhanalakshmi in her evidence has reiterated about having given the dowry to the accused and also spending huge money for performing her marriage and about the additional dowry demand of ₹5,00,000/- and also deposed that on 08.02.2009, a galata had taken place. She also states that she was taken to hospital and after treatment, she went to her parents' house and this witness was subjected to cross examination. In the cross examination, PW.1 has categorically admitted that on 05.10.2008, there was an understanding between her and her husband/accused No.1 and she also signed the document Ex-D1(understanding letter), which was also confronted to her and marked. Ex.D1 was also signed by accused Nos.1, 2 and also her relatives. Though, PW.1 claims that the same was taken fraudulently, she has not given any complaint to the police and she is aware that if any document is obtained fraudulently, a complaint can be given to the police. PW.1 categorically admits for having paid the amount of ₹2,50,000/at the time of marriage, no documents were produced to prove the same. PW.1 also admits that against accused No.1, a case was filed by her under Domestic Violence Act and maintenance was also awarded to her. She also admits that on 25.03.2009,

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she had given a missing complaint against her husband/accused No.1 and at the time of abortion, she was aged about 34 years and before two days of the alleged incident, her pregnancy was confirmed and that she has not approached any lady doctor. She also admits that she was conscious when she went to Sanjeevani Hospital and that the Doctor also asked her as to how the abortion happened and that she stated before the Doctor about the same and the same has been mentioned in the records. The allegation with regard to snatching of her ATM card, she has given four complaints, wherein she has not stated the same before the Court.

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9a. The other witness is PW.2, Police Constable, Hassan Badavane Police Station, Hassan, who carried the FIR. PW.3 is the mahazar witness to Ex.P12. He has turned hostile.

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9b. The other witness is PW.4, brother of PW.1. He reiterates the evidence of PW.1 and speaks about the abortion of PW.1. In the cross-examination, he admits that he cannot say as to how many complaints his sister/PW.1 has filed against the accused. But he claims that one Dr. Manjunath attended to his sister, when she was taken to the hospital and he further

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deposes that that they informed the Doctor that accused No.1 kicked on the stomach of his sister and they did not lodge any complaint on the same day. Further, he states that there was panchayat held between their family and accused family and when Ex.D1 was shown to him, he admits the same. The police recorded his statement.

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9c. The other witness is PW.5, the father of PW.1 and he also reiterates the evidence of PW.1 that he had paid the dowry amount and given gold ornaments and also additional demand of Rs.2,50,000/-. He also states that his son-in-law/accused No.1 forcibly aborted the child by kicking on the stomach of his daughter/PW.1. But in the cross-examination, he admits that his daughter/PW.1 suffered abortion in September 2008 and she lodged the complaint in February 2009. He also categorically admits that CW.2, CW.4 to CW.9 are his relatives and denied that his daughter lodged three complaints against the accused persons and admits that he has not lodged any complaint against the accused persons. However, he admits that as per the panchayat, it was agreed that his daughter/PW/1/complainant shall stay in her father's house and

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continue to take treatment for seizure. He further admits that on 25.03.2009, he had lodged a complaint against accused No.1, accusing committing theft of gold ornaments by accused No.1 from his house. Having taken note of the evidence of PW.1/complainant and PW.5/father of the complainant and also on appreciation of evidence, particularly the evidence of the Doctor-PW.10 and also evidence of PWs.6, 7 and 8 who are the relatives i.e., PW.6 brother-in-law of PW.5 and PW.7 and PW.8, the sisters of PW.5 held that except PW.10 Doctor, all other witnesses are related and interested witnesses.

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9d. The other witness is Doctor-PW.10, Medical Officer, Sanjeevini Cooperative Hospital and Medical Education and Research Institution, who deposed before the Court that he treated PW.1, who was brought to their hospital stating PW.1 is pregnant of one month and 10 days and has been suffering from stomach pain and bleeding and on examination, it was found that PW.1 had suffered incomplete abortion and the patient was discharged next day and he has issued the certificate in terms of Ex.P15. In the cross examination, he admits that patient was conscious and was able to speak when

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she was admitted to the hospital and PW.1 herself informed that she is suffering from stomach pain and also bleeding from last one day. However, the evidence of PW.10 also does not come to the aid of the prosecution to come to the conclusion that abortion has taken place on account of accused No.1 kicking PW.1.

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Having reassessed both oral and documentary evidence and particularly the evidence of the witnesses, which have been relied upon by the prosecution i.e., PW.6 to PW.9, who are the related witnesses, except the evidence of the witnesses mainly PW.1 and PW.5, who are the complainant and father of the complainant, evidence of none of the witnesses inspires the confidence of the Court. It is also important to note that the trial Court also took note of the fact that there was an understanding between the accused and PW.1 in terms of Ex.D1 and Ex-D2 and even the recitals of the said documents have been extracted in the judgment of the trial Court. The medical evidence also does not support the case of the prosecution with regard to invoking Section 313 IPC. It is also important to note that immediately after the marriage, disputes

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had arisen between the parties and in order to invoke Section

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498A as well as 323 IPC, no other materials were available before the Court and the materials available were appreciated by the trial Court while acquitting the accused, wherein at paragraph No.30, the trial Court took note of the evidence of the Doctor/ PW.10 and also documents Exs-D1 and D2, agreements entered into between accused No.1 and PW.1 in paragraph Nos.34, 35 and 36. However, in order to invoke Sections 498A, 313, 323 IPC, taking note of expenses incurred by the father of PW.1 towards performance of her marriage, with regard to demand and acceptance of dowry of ₹2,50,000/there was no independent evidence to show that the accused persons demanded and received Rs.2,50,000/- in cash and 47 grams of gold jewelry. Nothing is also mentioned in Ex.D1. Ex.D1 is the crucial document and PW.1 and other witnesses have admitted their signature in Ex.D1. The trial Court has extracted the relevant portions of Ex-D1 in its judgment to show that all the gold ornaments given by the parents of PW.1 were taken away by PW.1 and it was also clearly written in Ex-D1 that from the side of the parents of PW.1, no ornaments were given to accused No.1 and hence the same falsifies that

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cash and 47 grams of gold jewelry were given to the accused

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and the same is discussed in paragraph No.38. So also in respect of invoking Section 313 IPC also, in paragraph No.39 and 40, the trial Court discussed the evidence of the Doctor and Ex.D6 the CT scan report and held that PW.1 was under treatment for seizure disorder and as the evidence of the Doctor did not inspire the confidence of the Court to hold that because of the kick given by accused No.1, PW.1 suffered abortion, the same also did not support the case of the case of

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the prosecution to invoke section 313 IPC. With regard to the allegation of assault, to invoke section 323 IPC, the trial court held in paragraph 41 that PW.1 has not produced any other medical certificates to show that she was assaulted by the accused and the ingredients of Section 323 IPC were not brought on record. Further, the trial Court held at paragraph 50 that as the evidence available on record by the prosecution is inconsistent and not corroborative, and as the evidence on record does not inspire the confidence of the Court to hold the accused persons have committed the offence, the trial Court acquitted the accused and even before this Court as there is no incriminating evidence against the accused persons, question of

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reversing the judgment of the trial Court and convicting the accused does not arise. The trial Court has applied its judicious mind while accepting the case of the prosecution and since no materials were found to bring home the guilt of the accused for

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the offences involved against them, acquitted the accused by extending the benefit of doubt and hence we answer the points in the negative.

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In view of the discussions made above, we pass the

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following:-

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ORDER

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The appeal is dismissed.

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(H.P.SANDESH) JUDGE