IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE, BENGALURU CITY Dated this the 06th day of August 2018 Present: Sri S.Nataraj, B.A.L., L L.B., Chief Metropolitan Magistrate, Bengaluru C.C. No.17777/2016 Complainant : State by Kodigehalli Police, Bengaluru City (By Sr. APP) -V/s- Accused : 1.
Ramakka w/o Narasimhaiah, 50 yrs, R/at No.172, Maruthi Nagar, Kodigehalli Main Road, D.N.Clave Cross, Sahakaranagar, Bengaluru-92.
2. Gangamma w/o Late Narayanappa, 55 yrs,
3. Pramila w/o Late Vijay, 40 yrs, (A2 and A3 are R/at No.177, 1st Cross, Maruthi Nagar, Kodigehalli Main, D.N.Clave Cross, Sahakaranagar, Bengaluru)
4. Narasimhaiah s/o Late Chikkamuniyappa, 59 yrs, R/at No.172, Maruthi Nagar, Kodigehalli Main Road, D.N.Clave Cross, Sahakaranagar, Bengaluru-92.
(By B.C.Rajanna, Advocate) Date of offence : 01-01-2014 to 26-10-2015 (As per F.I.R.) Offences : U/S.498(A), 323, 504, 506 R/W 34 of IPC Plea of the accused : Accused No-1 to 4 pleaded not guilty Final order : Accused No.1 to 4 are Acquitted Date of Judgment : 06-08-2018 >>o<<
-: J U D G M E N T U/S 355 of Cr.P.C. :-
The Police Sub-Inspector of Kodigehalli Police Station, Bengaluru has filed charge sheet against accused No.1 to 4 for the offences punishable under Section 498(A), 323, 504, 506 R/W 34 of IPC.
2. The case of prosecution in brief is that-
Fourteen years prior to 29-10-2015 (date of complaint), the marriage of CW1 Munirathnamma was solemnized with one Manjunath. Accused No-1 to 3, the aunts of CW1’s husband and accused No-4, the husband of accused No-1 resided along with CW1 and her husband at No.77, 2nd Cross, Maruthi Nagar, Kodigehalli Main Road, Bengaluru. After one year of marriage, the accused persons being close relatives of CW1’s husband were abusing the children of CW1 in filthy language and assaulting them. When CW1 questioned, the accused were also abusing, assaulting and threatening CW1 to leave the house along with children and die, as the property belongs to their father or else they will kill by giving poison. Thereby the accused persons alleged to have committed the aforesaid offences.
3. Accused No.1 to 4 are on bail. After furnishing the charge-sheet copies, on the basis of materials placed before the Court, Charges against accused No.1 to 4 was read over and explained to them. The accused persons pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case has examined in all five witnesses as PW1 to 5 and got marked Ex.P1 to 4 documents. Thereafter, the statement of accused No-1 to 4, as required U/S 313 of Cr.P.C. was recorded, wherein they denied the prosecution case in toto and opted not to adduce any defence evidence.
5. Heard arguments on both sides.
6. The points that arise for my consideration are-
1) Whether the prosecution proves beyond all reasonable doubt that accused No-1 to 4 have committed the offences punishable under Section 498(A), 323, 504, 506 R/W 34 of IPC?
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 specific case of prosecution that the complainant is the wife of one Manjunath. The accused No-1 to 3 are the sisters of complainant’s mother-in-law, accused No-4 is the husband of accused No-1. After marriage with Manjunath, the complainant resided with her husband and accused in house No.77, II Cross, Maruthi Nagar, Kodigehalli Main Road, Bengaluru. At that time, the accused used to ill treat physically and mentally to the complainant and her children. The accused also abused the complainant by threatening her to leave the house, as it belonged to their father, otherwise they will administer poison and kill her. As such she had lodged complaint against the accused.
9. The accused persons in their defence and also through cross-examination of prosecution witnesses denied any ill treatment or harassment to the complainant and contended that they never resided with the accused and her husband in the house in question. Accused No-1 to 3 after their marriages are residing separately, accused No-4 is the husband of accused No-1 and working in Corporation. One Munithimmaiah had bequeathed the house in question in favour of accused No-2, to knock off the said property, a false complaint has been lodged.
10. The Sr. APP argued that PW1 is the complainant, PW2, 3 are the neighbourers, PW4 is the brother of complainant and PW5 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.
11. The learned counsel for accused argued that the complainant has lodged false complaint. The evidence of PW1 to 4 is inconsistent and contradictory. There was no ill treatment or harassment as alleged by the complainant in the complaint or her evidence. The admissions in cross-examination 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. The complaint filed by complainant against the sisters of her mother-in-law and husband of one of the sister is not maintainable, hence prayed for acquittal of the accused.
12. On consideration of submissions of Sr.APP and counsel for accused, I have carefully perused the material on record. Before looking into the oral 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.
13. In the present case, as the allegations of demand of dowry is not there, the consideration of Explanation sub-clause (b) to Section 498(A) of IPC does not arise. The elements of cruelty so far as Explanation sub-clause
(a) to Section 498(A) of IPC is concerned, any wilful conduct of accused which is of such nature as is likely-
(i) to drive the woman to commit suicide, or
(ii) to cause grave injury, or
(iii) danger to life, limb or health whether physical or mental health of the woman.
14. The relationship between parties are not in dispute. The complainant is the wife of Manjunath. Accused No-1 to 3 are the sisters of complainant’s moher-in-law. Accused No-4 is the husband of accused No-1. As per Section 498(A) IPC, whoever being the husband or the relative of husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to 3 years and also liable to fine.
(emphasis supplied) If the accused are relatives of husband of the complainant, it attracts the above said provision. The accused herein are relatives of complainant’s husband, which falls within ambit of above said provision. Now the question is whether the accused have committed offence as alleged by the prosecution.
15. The prosecution to prove its case examined the complainant Munirathnamma as PW1. She has filed complaint at Ex.P1 alleging that after marriage with her husband Manjunath, the accused being relatives of her husband used to ill treat, assault and threatened her withphysical and mental harassment, for which she had also tried to commit suicide on 26-10-2015.
16. Before the court, PW1 – the complainant in her examination in chief deposed that house No.77, II Cross, Maruthi Nagar, belongs to her husband’s grandfather Munithimmaiah, the accused resided with herself and her husband after marriage. After one year of her marriage, the accused demanded her to leave the house saying that it belongs to them, otherwise they will administer poison, or else told her to consume poison, as a result of which she had attempted to commit suicide and taken treatment.
17. In the cross-examination of PW1, it is elicited that her mother-in-law Muniyamma was given in marriage to Kothakondahalli, her mother-in-law is having 4 daughters and 2 sons. The complainant denied that after her marriage, she resided with her husband in the house of her mother-in-law at Kothakondahalli. She admits that accused No-2 was married about 40-50 years ago, the accused No-1 was married about 25 years ago, she resides in her husband’s house separately. However, according to complainant she resides adjacent to her house. It is also elicited that there are no documents to show that the accused were resided with her in the house in question. It is suggested that Munithammaiah’s wife was given two houses, out of which one was given for rent and another house was left for her residential purpose. It is clearly admitted in para No-3 of the cross-examination that-
“¸ÀzÀj ªÀÄÄ¤wªÀÄäAiÀÄågÀªÀgÀ ºÉAqÀw eÉÆvÉ £Á£ÀÄ £À£Àß UÀAqÀ ªÀÄvÀÄÛ CvÉÛ ªÁ¸À«zÉªÝ ÀÅ CAzÀgÉ ¸Àj”
The above said admission virtually goes against the case of prosecution. It is not the case of complainant in the complaint and evidence that she resides along with her mother-in-law. On the other hand, it is clearly stated in her complaint that her mother-in-law does not reside with her in the said house. But the above said admission runs contrary to the prosecution case.
18. PW2 Anusuyamma in her chief examination deposed that the complainant and accused persons were resided together, now they are residing separately, the complainant and her husband are in cordial terms. However in her cross-examination she deposed that she does not know as to since how many years accused No-1 to 3 are residing separately. She does not know that since 15 years, they are residing separately. If the accused and complainant resided together, PW2 being the neighbourer would not have deposed that she does not know since how many years the complainant and accused resided separately. Therefore, the elementary fact that complainant and accused resided together creates suspicion.
19. PW3 Papaiah in his examination in chief deposed that the accused are his neighhours, earlier the complainant and accused resided together. They used to quarrel in their house, he does not know in between whom the quarrel took place and he has not advised anything. In the cross-examination, he gives a different version to that of prosecution case stating that he does not know for what reasons, the accused quarreled with the complainant, he has not given statement to the police. Therefore, his evidence is not useful to the prosecution case.
20. PW4 Murali, the brother of complainant speaks regarding drawing of mahazar by the police. In his cross-examination, he deposed that the complainant and her husband resided together only for one year, thereafter they are residing separately. But there is no complaint against the husband, the complainant has not at all alleged in the complaint about any harassment by her husband. PW4 further in his cross-examination admits that accused No-3 resides in house No.102 of Kothi Hosahalli, Bengaluru North and he does not know that accused No-1 is residing in house No.E21, B.B.Nagar, Kothi Hosahalli.
21. PW5 Ashok Kumar is the IO, who deposed about the role played by him in the investigation of case. In his cross-examination, PW5 admitted that in the charge sheet, the address of accused have been shown as different addresses. According to him at the time of incident, they were residing in one address. He further admits that there are no documents to show that the accused resided with complainant. Further he has admitted that he had no hurdles to record the statements of complainant’s mother-in-law Muniyamma, her husband Manjunath and sister-in-law Radha.
22. Therefore from the evidence of above said witnesses, first of all there is no cogent material on record to establish that the accused were resided with the complainant in House No.77, II Cross, Kodigehalli Main Road, Bengaluru. The IO admittedly has not recorded the statements of complainant’s husband, her mother-in- law and sister-in-law. In the complaint itself, it is stated that the complainant’s mother-in-law is not involved in the alleged offences. According to her, she resided with her husband and mother-in-law. In that context, the husband and mother-in-law of complainant are the material witnesses. Their evidence has been withheld by prosecution. The IO has neither recorded their statements nor cited as witnesses. Without examining the said material witnesses, it cannot be said that the accused resided with the complainant and subjected her to both physical and mental cruelty saying to leave the house, as the same belongs to their father or else they would administer poison to her.
23. It is to be noted here that, in the cross- examination of PW1, it is elicited that one year after marriage for 16 years, the accused harassed her, for which a panchayath was held, she cannot say the date on which it was held and she has not lodged complaint. She admits that accused No-3 lodged complaint against her husband. Further it is elicited that she cannot say on what date the accused abused and assaulted her, she has not lodged complaint on each date of incident against the accused.
24. According to complainant, because of alleged harassment by the accused, she attempted to commit suicide on 26-10-2015 and admitted to hospital. In her chief examination, PW1 deposed that she consumed old tablets to commit suicide. Ex.P3 is the medical records of complainant issued by Medstar Speciality Hospital, which discloses that she was admitted to hospital on 26- 10-2015 and discharged on 29-10-2015. In the medical records, nowhere it would disclose as to for what purpose PW1 was admitted for hospital. The discharge summary is not found in Ex.P3. If discharge summary would have been produced, it would come to know the reasons for admit to hospital and nature of treatment given to her. For the best reasons known to complainant, the discharge summary is not produced. Therefore, an adverse inference has to be drawn that she was admitted to hospital to some other reason and not for taking treatment to the alleged attempt to commit suicide.
25. That apart from the above, there is no explanation on record that what prevented the complainant from making complaint to the police after one year of the marriage till filing of complaint on 29- 10-2015, which inaction on the part of complainant certainly compels this court to draw an adverse inference against the complainant, who admittedly kept mum approximately for 15 years. If she was actually harassed or meted cruelty in terms of explanation (a) to Section 498(A) IPC, she would have lodged complaint with the police immediately. No such complaint has been filed before 29-10-2015. The allegations of complainant in her evidence are general and vague. No specific instances of alleged harassment are narrated or proved. On the whole, there are no sufficient evidence and material on record to prove the offences of Section 498(A), 323, 504 and 506 R/W 34 IPCagainst accused. Therefore, this court is of the considered opinion that prosecution failed to prove its case beyond all reasonable doubt. In the result, I answer Point No-1 in the Negative.
26. In view of my finding to Point No-1 as above, I proceed to pass the following:
(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., 06-08-2018) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
PW1 : Munirathnamma PW2 : Anusuyamma PW3 : Papaiah PW4 : Murali PW5 : Ashok Kumar
List of Documents marked on behalf of the prosecution:-
Ex.P1 : Complaint Ex.P2 : Mahazar Ex.P3 : Medical Records File Ex.P4 : F.I.R.
List of Material objects produced:-
NIL List of Witnesses examined & documents marked on behalf of the defence:
NIL C.M.M., BENGALURU.
06.08.2018 Judgment pronounced vide separate sheets.
Chief Metropolitan Magistrate, Bengaluru.