1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JANUARY, 2017 BEFORE THE HON'BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL APPEAL No.398 OF 2010 BETWEEN: State of Karnataka by Basavanagudi Police. ...APPELLANT (By Shri S. Vishwamurthy, Government Pleader) AND: K. Giridhar, Aged about 37 years, Son of Mr. Koteshwara Rao, No.22, Vinayaka Koil Street, Ammukere, Chennai. ...RESPONDENT (By Shri M.R.C.Manohar, Advocate) ***** This Criminal Appeal filed under Section 378 (1) and (3) of the code of Criminal Procedure, 1973, by the State Public Prosecutor of the State praying to grant leave to file an appeal against the judgment dated 6.11.2009 passed by the Presiding 2 Officer, Fast Track Court-6, Bangalore, in Crl.A.No.456/2006 - acquitting the respondent for the offence punishable under Section 498(A) of IPC and Section 4 of D.P.Act. This appeal coming on for Hearing this day, the Court delivered the following: JUDGMENT
Heard the learned Government Advocate appearing for the State.
2. The State is in appeal questioning the acquittal of the respondent for an offence punishable under Section 498-A of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for brevity) and Section 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as ‘the DP Act’, for brevity).
3. It transpires that the respondent was Accused No.1. Accused No.2 was his father. Accused No.3 was his mother. Accused No.4 was his brother. The wife of the respondent had alleged offences punishable under Section 498-A IPC and Sections 3 and 4 of the DP Act read with Section 34 of the IPC.
Initially, the Magistrate had by its judgment dated 9.7.2001, convicted the accused to undergo simple imprisonment for a period of three years for the offences punishable under Section 498A IPC and to pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo simple imprisonment for two months. They were also found guilty of offences punishable under Sections 3 and 4 of the DP Act and were convicted to undergo simple imprisonment for six months and to pay a fine of Rs.500/- each and in default to undergo simple imprisonment for one month. The sentences were to run concurrently.
By a subsequent judgment dated 21.02.2006, the Trial Court had sentenced Accused No.1 to undergo simple imprisonment for two years and to pay a fine of Rs.500/- and in default to undergo simple imprisonment for one month for offences punishable under Section 498-AIPC. Accused No.1 was further sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for one month for the offence punishable under Section 4 of the DP Act. It is that which was carried in appeal before the Lower Appellate Court.
It is stated that during the trial itself, Accused No.2 had been reported to be dead and hence, the case against Accused No.2 abated. The Trial Court having acquitted Accused Nos.3 and 4 and convicted Accused No.1 for the offences punishable under Section 498-A IPC and Section 4 of the DP Act, an appeal was filed before the Lower Appellate Court. The State had not chosen to challenge the acquittal of the other accused and that had attained finality.
Insofar as the appeal filed by the present respondent before the Lower Appellate Court, the Lower Appellate Court has found that the evidence of the witnesses would have to be considered only in respect of Section 498-A and Section 4 of the DP Act, as the respondent had been acquitted for offence punishable under other sections. It was found at the outset that the prosecution has relied entirely on the evidence of PWs 1 and 3, namely the complainant and her mother. None of the neighbouring witnesses who were examined by the prosecution regarding the alleged dowry harassment had supported the case of the prosecution regarding the dowry harassment. PW-2 was the brother of PW-3 who has spoken about the alleged demand for dowry made prior to the marriage and at the time of the marriage. PW-4 only advised the respondent herein to lead a happy marital life with the complainant, as the accused was working under her husband. But, it was found by the Lower Appellate Court that PW-4 was a hearsay witness and not much reliance could be placed upon her testimony. PW-5 was the driver engaged by PW-3 and the Lower Appellate Court has opined that he has not supported the case of the prosecution, though he was an independent witness.
PW-6 was a distant relative, whose evidence again was not of much use, as he had claimed that he went to the house of Accused No.1 to advise him to treat the complainant properly. But since he could not meet the accused, the evidence of the said witness was again of not much significance. PW-7 was the Investigating Officer who had spoken regarding the investigation of the case and in his cross-examination, he had admitted that some of the witnesses had not stated before him the fact that they have deposed before the court. In this background, the Lower Appellate Court has proceeded to examine the evidence of PW-1 and the evidence of other witnesses.
4. It is noticed that the marriage had taken place in the year 1989 and the complaint of ill-treatment was lodged after eight years, in the year 1997 and that she was living in the house of PW-3, her mother. It was the evidence of PW-1 and PW-3 that in the year 1993, Accused No.1 intended to go to the U.S.A. for higher studies and he required a sum of Rs.1,50,000/- for expenses and that PW-3 had lent him Rs.50,000/- and she had stood surety for the loan obtained from the Bank by Accused No.1 for purposes of his higher studies. There was no document produced by the prosecution as regards the payment of Rs.50,000/- by PW-3 to the accused. Thus, the Lower Appellate Court’s observation was that an amount was paid towards expenses and not as dowry, as the accused genuinely required the money to pursue his higher studies and it was voluntarily given by the mother and she had stood surety for a loan obtained from the Bank. Therefore, the loan was borrowed by the accused and not either by the mother of the complainant or the complainant and therefore has concluded that the amount could not be stated to be dowry. And even the sum of Rs.1,50,000/- could not be treated as relating to dowry.
Though it was stated that at the time of marriage, a sum of Rs.10,000/- was paid to the accused, it was not the case of the prosecution that this sum of Rs.1,50,000/- was demanded at the time of marriage. In relation to a suit filed before the Family Court in O.S.No.141/1998, it was admitted that it was subsequent to the marriage that the Accused No.1 had pursued his M.Tech degree from the Roorkee University and that he had borrowed cash for higher studies and hence, could not be treated as dowry. Further, the court has found with reference to Exhibits D1 and D2 that they were letters exchanged between the complainant and the accused and the tenor of the letters were such that it indicated that they were leading a harmonious married life and there was no difference of opinion between them. It was also found by the court below that the complainant had admitted that Accused No.1 had purchased a residential site and a Life Insurance Corporation policy in the complainant’s name. This circumstance, the Lower Appellate Court has emphasized in holding that when that was the case, the question of the accused demanding dowry when it was noticed that a residential site and an LIC policy was obtained in the name of the complainant, would dilute the case of the prosecution.
Though it was alleged that in August 1996, Accused No.1 had left their matrimonial home and joined his parents in Chennai and that he had claimed that he was no longer able to live in her company and that he would join her only if she got a house property which stood in the name of her mother transferred in her favour, but in her evidence the complainant had claimed that on 20.06.1997 her mother, brother and uncle and few others did go to Chennai in order to impress upon the accused to join her and to make a living with her. And in the evidence in the suit O.S.No.141/1998, she has further stated that after the accused went to Chennai after getting his transfer, she did not go to Chennai with him, since she did not know about his transfer. She came to know about it only in December 1997, which the Lower Appellate Court has found was a contradiction which defeats her claim that there was willful desertion and a demand for a house as narrated by her. It was also brought out in evidence that Accused No.1 had produced two cheques during his examination under Section 313 Cr.P.C. to indicate that a total amount of Rs.4,50,000/- was paid by the accused to the mother of the complainant, who had denied the same while this threw doubt towards the absence of a cordial relationship between the parties. Again, this was turned out by Exhibits D1 and D2 which were exchange of letters between the accused and the complainant indicating that there was a cordial relationship between them.
It is in this fashion that the Lower Appellate Court has set aside the judgment of the Trial Court and has acquitted the accused.
5. Having regard to the reasons assigned in holding that the Trial Court was in error in convicting the respondent in the face of contradictions and inconsistencies and in the absence of independent evidence to bring home the charges, the respondent having been acquitted, cannot be faulted. Therefore, the present appeal filed by the State is bereft of merit and is dismissed.