IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE, BENGALURU CITY Dated this the 05th day of September 2018 Present: Sri S.Nataraj, B.A.L., L L.B., Chief Metropolitan Magistrate, Bengaluru C.C. No.20888/2009 Complainant : State by Madivala Police, Bengaluru City (By Sr. APP) -V/s- Accused : 1.
Shamanthkumar s/o Gurumurthachar, 41 yrs, R/at.Abbathanahalli Village, Mallasandra Post, Tumkur Taluk and District.
2. Gurumurthachar – Abated
3. Savithramma w/o Gurumurthachar, 71 yrs, No.87, Abbathanahalli Village, Mallasandra Post, Tumkur Taluk and District.
4. Seethalakshmi – Abated (By K.Muralidhar , Advocate for A1 and 3) Date of offence : Since 20-04-2000 Offences complained of : U/S.498(A) R/W 34 of IPC and S.3, 4 of DP Act Plea of the accused : Accused No-1 and 3 pleaded not guilty Acquitted Date of Judgment : 05-09-2018 >>o<<
-: J U D G M E N T U/S 355 of Cr.P.C. :-
The Police Inspector of Madivala Police Station, Bengaluru has filed charge sheet against accused No.1 to 4 for the offences punishable under Section 498(A) R/W 34 of IPC and Section 3, 4 of Dowry Prohibition Act.
2. The case of prosecution in brief is that-
On 20-04-2000 the marriage of CW1 Veena was solemnized with accused No-1 as per the customs prevailing in Hindu Community at Veerabhadraswamy Convention Hall, Kamakshipalya, Bengaluru. At the time of marriage, as per the demand of accused CW2 Sowbhagyamma had given cash amount of Rs.1 lakh and gold ornaments as dowry. After marriage, CW1 was leading matrimonial life with accused No-1 at No.33, Rupena Agrahara, Bengaluru. At that time, the accused No-1 at the instigation of his parents and sister i.e., accused No-2 to 4 ill treated CW1 and her children, abused, demanded money from her parental house and threatened saying that if failed to bring the money, he will marry another lady and all the accused thrown them out of the house, thereafter the accused No-1 married one Chandrakala and thereby the accused subjected CW1 to both physical, mental cruelty and committed the aforesaid offences.
3. Accused No.1 and 3 are on bail. Accused No-2 and 4 are reported to be dead and hence the case against them is abated on 11-10-2010 and 04-05-2015 respectively. After furnishing the charge-sheet copies, on the basis of materials placed before the Court, Charges against accused was framed, read over and explained. The accused No-1 and 3 pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case has examined in all eight witnesses as PW1 to 8 and got marked Ex.P1 to 8 documents. Thereafter, the statement of accused No-1 and 3, as required U/S 313 of Cr.P.C. was recorded, wherein they denied the incriminating evidence and opted not to adduce any defence evidence.
5. Heard arguments on both sides and perused the written arguments filed by the learned counsel for accused No-1 and 3.
6. The points that arise for my consideration are-
1) Whether the prosecution proves beyond all reasonable doubt that accused No-1 and 3 have committed the offences punishable under Section 498(A) R/W 34 of IPC and Section 3, 4 of Dowry Prohibition Act?
2) What order?
7. My answer to the above points are as under.
Point No-1: In the Negative Point No-2: As per final order REASONS Point No-1:
8. It is the allegation of prosecution that accused No-1 is the husband of complainant, whose marriage was solemnized on 20-04-2000 and accused No-2 to 4 are the parents, sister of accused No-1. At the time of marriage, cash of Rs.1.5 lakhs and gold ornaments were given to accused No-1 as dowry. After marriage, the complainant was subjected to physical and mental cruelty by her husband and his family members by demanding further dowry of Rs.1 lakh. As such the complainant has filed complaint against the accused persons. The accused No-1 and 3 in their defence and also through cross-examination of prosecution witnesses denied the alleged taking and demand of dowry, ill treatment or harassment to the complainant.
9. The Sr. APP argued that PW1 is the complainant and PW2, 3 are her mother, brother, PW4 to 6 are neighbourers out of whom PW4, 5 had participated in the marriage talks, PW7 is the owner of house where the complainant and accused resided and PW8 is the IO. The evidence of above said witnesses are corroborating with each other. In the cross-examination of these witnesses, nothing is elicited. Their veracity is not doubted and hence prayed for conviction.
10. The learned defence counsel argued that the complainant has lodged false complaint. The evidence of prosecution witnesses is inconsistent and contradictory. There was neither taking, demand of dowry nor ill treatment, harassment as alleged by the complainant in the complaint or her evidence. The admissions in cross- examination of witnesses would falsify the case of prosecution. There are no materials to hold that the accused ill treated and harassed the complainant or treated with cruelty, so as to drive her to commit suicide or cause grave injury or danger to her life, limb or health and hence prayed for acquittal of the accused. In support of his arguments, the learned defence counsel relied the decision reported in 2005 CRI. L.J. 3625 (State of Maharashtra V/s Vivek Gangadhar Thakare and Others).
11. On consideration of submissions of Sr.APP and learned defence counsel, I have carefully perused the material on record. Before appreciation of the oral and documentary evidence on record, it is useful to refer the judgment of Hon’ble Supreme Court in (2002) 5 SCC 177 in the case of Giridhar Shankar Tawade V/s State of Maharashtra, wherein it has considered the scope and purport of Section 498(A) IPC and held as under-
“The basic purport of statutory provision is to avoid ‘cruelty’ which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascertain a meaning to the word ‘cruelty’ as is expressed by the legislature: whereas explanation (a) involves three specific situations viz.,
(i) to drive the woman to commit suicide, or
(ii) to cause grave injury, or
(iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embarrass the attributes of cruelty in terms of Section 498(A) IPC”
Further, in the decision in 2017 (4) AKR 18 Gangaraju and Others V/s State, para 9 of the judgment is extracted as follows-
“9. The Trial Court after appreciation of the evidence has held that, there is no proof to attract Section 498-A of IPC Explanation sub-clause (a), the prosecution has to prove the wilful conduct of accused persons which is of such nature as is likely to drive a woman to commit suicide or cause grave injury or danger to life, limb or health. Therefore, it is not a mere conduct of the accused, which can satisfy the Court to convict the accused. It is wilful mis-conduct of the accused that means the accused must have intentionally and wilfully conducted themselves with clear intention that woman should commit suicide or she should cause grave injury or danger to life, limb or health. Therefore, something more has to be proved before this Court other than the mere conduct of accused, to establish their intention and willfulness in conducting themselves”
Therefore, from the above said judgments, the prosecution has to prove its case in terms of provisions under Section 498(A) of IPC and principles enumerated in the above said decisions.
12. In the present case, as per prosecution allegations, the explanation (a) to Section 498(A)IPC would attract. In short, the accused alleged to have harassed and meted out cruelty to the complainant by demanding further dowry. The prosecution to prove its case examined the complainant Veena as PW1. She has lodged complaint against the accused as per Ex.P1 on 04-12-2008. Ex.P3 is the marriage invitation card, Ex.P4 to 6 are the marriage photos. It is an admitted fact that the marriage of complainant and accused No-1 was solemnized on 21-04-2000. It is also an admitted fact that after marriage, they led marital life at Rupena Agrahara, Bengaluru and from their wedlock, children were born.
13. PW1 Veena in her evidence in chief deposed that at the time of marriage talks, the accused demanded Rs.1 lakh as dowry and 150 grams gold ornaments. At the time of marriage, her parents had paid cash amount of Rs.50,000/- and 150 grams gold ornaments. After marriage, they resided at Tumkur and thereafter the accused demanded her to bring cash amount of Rs.1 lakh from her parents, so as to get a house on lease and settle down at Bengaluru. When she refused to do so, the accused thrown her out of the house by retaining the ornaments given in her marriage and insisted her to bring Rs.1 lakh from her parental house for arranging a separate house. The accused also threatened that if she failed do so, they would arrange another marriage to accused No-1. Thereafter accused No-1 did not visited the house of her parents where she was residing and subsequently, the accused again demanded Rs.2 lakhs, for which she lodged complaint at Ex.P1 and the police conducted Ex.P2 mahazar.
14. PW2 Sowbhagyamma, the mother of complainant deposed that her daughter’s marriage was performed with accused No-1 by incurring the marriage expenses. At the time of marriage talks, for marriage expenses accused No-2 and 3 demanded Rs.2.5 lakhs and also demanded neck chain, bracelet and two ring fingers. They had given Rs.1.5 lakhs, neck chain and two rings at the time of marriage as dowry to accused No-1. After marriage, accused No-1 and her daughter resided at Rupena Agrahara. At that time, accused No-1 demanded further dowry and harassed the complainant by saying to bring amount to get a house for lease, for which her son had paid Rs.1.5 lakhs and the house was arranged for lease to them. Again the accused demanded further dowry and thrown out PW1 from the house, wherein her daughter came along with children to her house. Thereafter the accused No-1 had vacated the lease house and went somewhere. When they informed to accused No-2 and 3, they demanded further dowry and had performed another marriage to accused No-1.
15. PW3 Anandkumar, the brother of complainant too has deposed that they have paid cash amount of Rs.1.5 lakh, neck chain, bracelet and two rings as dowry to accused No-1. They have also arranged a house for lease. The accused again demanded amount for the purpose of construction of house at Tumkur, harassed the complainant and demanded further dowry.
16. PW4 Ramesh Reddy deposed that he had participated in the marriage talks. He came to know from the father of PW1 that cash amount of Rs.2 lakhs, gold and silver articles will be given as dowry. After 2-3 years of the marriage, the accused demanded further dowry for construction of house and harassed the complainant, the same was informed to him by the complainant’s father. He had also arranged for a panchayath and that accused No-1 has married another lady.
17. PW5 Nandeesh has also deposed regarding his participation in marriage talks and giving of dowry to accused No-1 and that accused No-1 informed about the second marriage. It is also his evidence that the accused harassed the complainant by demanding dowry and thrown her out of the house.
18. PW6 Byregowda deposed that the accused and CW1 used to make galata often. On enquiry, he came to know that the accused No-1 demanded dowry for construction of house in his native place, for which he advised.
19. PW7 Hiremath, the owner of house has not supported the prosecution case in his chief examination. During cross-examination by the Sr.APP on treating him hostile, he denied of giving statement as per Ex.P7 before the police.
20. In the cross-examination of PW1, it is elicited that at the time of marriage Rs.40,000/- dowry was paid during the «Ã¼ÀåzÉ¯É ±Á¸ÀÛ.ç Further, it is elicited that-
“a£ÀßzÀ MqÀªÉAiÀiÁV ªÀÄzÀÄªÉ ¸ÀªÀÄAiÀÄzÀ°è 1 GAUÀÄgÀ ¨ÉÃPÀÄ JAzÀÄ PÉÃ½zÀÝgÀÄ CzÀ£ÀÄß PÉÆnÖzÉÝªÀÅ. CzÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ DgÉÆÃ¦ ªÀÄvÉÛÃ£ÀÄ PÉÃ½®è”
In para 2 of her cross-examination, PW1 deposed that-
“ªÀÄzÀÄªÉUÉ ªÀÄÄAavÀªÁV 1£ÉÃ CgÉÆÃ¦UÉ, 1 a£ÀßzÀ GAUÀÄgÀ ªÀÄvÀÄÛ gÀÆ.40000 ªÀiÁvÀæ ¤ÃrzÉÝÃªÉ CzÀ£ÀÄß ©lÄÖ ¨ÉÃgÉ K£À£ÀÄß PÉÆnÖ®è”
In para 3, it is elicited that-
“¤¦ 1 gÀ°èAiÀÄ ¥ÁågÁ-2 5£ÉÃ ¸Á°¤AzÀ £À£Àß «Ã¼ÀåzÉ¯É ±Á¸ÀzÛç À ¢£À £À£Àß ªÀÄ£ÉAiÀÄ°è, £À£Àß UÀAqÀ£À PÉÊUÉ ªÀgÀzÀQëuÉAiÀiÁV gÀÆ.1 1/2 £ÀUÀzÀÄ ºÀt PÉÆmÉÖªÀÅ. ªÀÄzÀÄªÉ ¢£À £À£Àß UÀAqÀ¤UÉ ªÀgÀzQÀ ëuÉAiÀiÁV 40 UÁæA vÀÆPÀzÀ MAzÀÄ a£ÀßzÀ PÀwÛ£À ¸Àg,À 25 UÁæA vÀÆPÀzÀ ¨Áæ¸ï¯ÉÃmï, 2 a£ÀßzÀ PÉÊ GAUÀÄgÀUÀ¼À£ÀÄß £À£Àß vÀAzÉ, vÁ¬Ä, vÀªÀÄä PÉÆnÖzÁÝgÉ JAzÀÄ ¸ÀÄ¼ÀÄî ºÉÃ½zÉÝÃªÉ JAzÀgÉ ¸Àj, DzÀgÉ GAUÀÄgÀ PÉÃ½zÀÝgÀÄ PÉÆnÖzÉÝÃªÉ JAzÀÄ ¸ÁQë ¸ÀévÀB ºÉÃ½zÁÝgÉ”
21. If the above said cross-examination evidence is considered, the very case of prosecution that the accused had received cash amount of Rs.1.5 lakhs, gold chain, bracelet and two rings as dowry, as mentioned in Ex.P1 and also in the chief evidence of prosecution witnesses will fall to ground.
22. It is also elicited in para 3 of the cross- examination of PW1 that accused No-3 and 4 did not come to her parental house and demanded Rs.1 lakh, so also accused No-4 after marriage was residing at her husband’s house and she did not come to her house to demand dowry.
23. In the cross-examination of PW2, it is elicited that cash amount of Rs.50,000/- was given to accused No-1 for payment of advance to the rented house at Rupena Agrahara. That the marriage expenses of accused No-1 was borne by accused No-1, his parents and herself, her husband and her family members. On the other hand PW3 denied that the marriage expenses was equally borne by accused and complainant family. However to establish that the marriage expenses and dowry amount given to accused No-1 is out of the sale consideration amount of Rs.8.5 lakhs sold by his father at BTM Layout, as deposed by PW3 in his cross- examination, no material is produced.
24. It is elicited in the cross-examination of PW3 that after marriage, accused No-1 and complainant were residing at Jakkur, thereafter shifted to Viratnagar. But in the cross-examination of PW1, she has stated that after marriage for one week she was residing with accused No-1 at his native place at Aboothanahalli Village, subsequently they shifted the residence to Bommanahalli, for which her family members had paid the lease amount. Admittedly the accused No-1 and complainant were residing at Rupena Agrahara, but there is no material that the lease amount was paid by the complainant’s family members. PW6 Hiremath is the owner of house, he does not say anything that the lease amount was paid by the parents of complainant. On the other hand, he turned hostile and denied of giving Ex.P7 statement before the police.
25. It is elicited in the cross-examination of PW4 that CW1’s father had not paid Rs.2 lakhs as dowry in his presence, but he had told that the same was paid. In the cross-examination of PW5, it is elicited that cash amount of Rs.2 lakhs, gold and silver articles were given to accused one week, 10 days prior to marriage.
26. There is no material that the accused demanded amount as dowry for construction of house at Tumkur. PW4 Ramesh Reddy though in his chief examination stated that the complainant had told him that the accused demanded an amount of Rs.1.5 lakhs, he has made panchayath and advised to lead life by adjusting with each other, in the cross-examination he has stated he has not attended the marriage of accused No-1. It is also elicited that after marriage, he has not visited the house of accused. According to him, after marriage, accused No-2 to 4 were residing with accused No-1, but the other witnesses have deposed a different version. Further, PW5 Nandeesh stated that he does not know as to how the accused were behaving with the complainant when they were residing together and the complainant has not informed him about the alleged harassment.
27. PW6 Byregowda also deposed that he does not know as to how the accused behaved with the complainant. In the cross-examination of PW6, it is elicited that he is working as driver in a tourist vehicle and used to come from work late night or sometimes early. He has not visited the house of complainant, he does not know as to who was the owner of accused No- 1’s house and as to in whose name, the rent agreement was made. PW1 in her evidence admitted that when they were residing at Rupena Agrahara, the accused No- 2 was suffering from ill health, to look after him, the accused No-1 had called her. She also admits that accused No-1 used to take her to Abhoothanahalli, where the accused insisted her to stay in the said village to look after accused No-2 and 3, for which she refused.
It is further elicited that due to the ill health of accused No-2 and 3, the accused No-1 has engaged one woman to look after them. It is the contention of accused that the complainant was asked to stay at Aboothanahalli to look after accused No-2 and 3, for which she refused to stay there and filed false complaint.
28. It is to be noted here that, nowhere in the complaint or in the evidence of PW1, it is stated that the accused No-1 married another woman, whereas the charge sheet and evidence of PW2, 4, 5, 6 would disclose that the accused No-1 has married another woman. PW1 in her evidence or complaint never stated that the accused assaulted by demanding dowry, whereas PW2 alleged that the accused assaulted her.
29. Therefore, on careful appreciation of evidence of prosecution witnesses, there are contradictions regarding the payment of dowry amount and gold ornaments at the time of marriage. The complainant herself has admitted that she has filed false complaint stating that the amount of Rs.1.5 lakhs, gold chain, bracelet, two rings were given to accused No-1. Therefore the version of other witnesses regarding payment of above said amount and gold ornaments cannot be accepted as a gospel truth. There is no material regarding payment of amount towards the lease of house and also construction of house. The owner of house does not support the prosecution case and also he being a material witness has not stated anything about the alleged harassment by accused to the complainant. The evidence of independent witnesses is inconsistent and contrary to each other, the same does not inspire confidence of the court to accept their version.
30. Considering the circumstance that accused No- 1 insisted the complainant to stay at Aboothanahalli Village to look after his aged parents, for which she refused, would create suspicion in the mind of court about the case of prosecution. Also there are omissions and improvements in the evidence of prosecution witnesses. No such circumstances are brought out to draw any inference that the conduct of accused was to drive the complainant to commit suicide. The points that are elicited during the cross-examination of witnesses stated above would improbabalize the case of prosecution. The evidence on record is insufficient tohold that the accused intentionally and willfully harassed the complainant to commit suicide or she should cause grave injury or danger to life, limb or health, so as to attract the offence of Section 498(A) R/W 34 IPC.
31. Also the prosecution has failed to establish the initial burden to prove beyond reasonable doubt in respect of the ingredients of Section 3 and 4 of Dowry Prohibition Act as per the decision in Full Bench of Hon’ble High Court of Karnataka reported in ILR 1993 KAR 3035 in the case of Harikumar vs State of Karnataka. Therefore, this court is of the considered opinion that prosecution failed to prove its case against accused, beyond all reasonable doubt. In the result, I answer Point No-1 in the Negative.
32. In view of my finding to Point No-1 as above, I proceed to pass the following:
The bail bonds of accused No-1, 3 shall stand canceled and set at liberty.
(Dictated to the Stenographer on Computer. The computerized print out taken by steno is revised, corrected and then pronounced by me in the Open Court on this day i.e., 05-09-2018) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
PW1 : Veena PW2 : Sowbhagyamma PW3 : Anandkumar PW4 : Ramesh Reddy PW5 : Nandeesh PW6 : Byregowda PW7 : Hiremath PW8 : Sirajuddin
List of Documents marked on behalf of the prosecution:-
Ex.P1 : Complaint Ex.P2 : Mahazar Ex.P3 : Marriage Invitation Ex.P4 to 6 : Photos Ex.P7 : Statement of PW7 Ex.P8 : FIR
List of Material objects produced:-
NIL List of Witnesses examined & documents marked on behalf of the defence:
NIL C.M.M., BENGALURU.
05-09-2018 Judgment pronounced vide separate sheets.
The bail bonds of accused No-1, 3 shall stand canceled and set at liberty.
Chief Metropolitan Magistrate, Bengaluru.