Bangalore District Court
Intimated The Same To Her Father vs On Perusal Of The Evidence Of ... on 21 March, 2020
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 21st DAY OF MARCH, 2020
PRESENT:
Sri. E. RAJEEVA GOWDA, LL.M.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
CRL.A.No.949/2019
BETWEEN
1.Puttahanumaiah.K S/o Late Kempaiah,
a/a 40 years,
2.Smt. Ramakka W/o Late Kempaiah,
a/a 76 years,
3.Smt.Lakshmidevi d/o Late Kempaiah,
a/a 35 years,
All are r/a No147/30, Mysore Road,
Chamarajpet, M. Anantharamaiah Compound,
Bengaluru-560 018. .. APPELLANT
(By Sri Vasanth Madhav, Adv.,)
AND
State by Chamarajpet P.S.,
Bangalore. .. RESPONDENT
(By Learned Public Prosecutor)
JUDGMENT
This appeal is filed by the appellant U/s.374(3) of Cr.P.C., with a prayer to setting aside the judgment and 2 Crl.A.No.949/2019 order of conviction and sentence dated 08.04.2019 in CC No.14957/2012 passed by the learned XXIV Addl., CMM., Bangalore, and acquit the appellants/Accused No.1 to 3, and pass such other orders or directions as deem fit under the circumstances of the case to meet the ends of justice.
2.The rank of the parties as referred before the Learned Magistrate are referred in the same rank for the convenience of this Court and to avoid confusion.
3.The brief facts of the prosecution case are as under:-
The complainant and accused No.1 are husband and wife. The marriage of complainant with accused No.1 was performed on 5.5.2011. At the time of marriage the parents of complainant were given Rs.2,00,000/- cash and 200 grams gold ornaments as dowry. After marriage, the accused persons have been harassing the complainant physically and mentally by demanding additional dowry of Rs.2,00,000/- and also to bring site, and in this regard the accused persons abused the complainant in filthy language, and also assaulted, and thereby the accused persons have 3 Crl.A.No.949/2019 harassed the complainant physically and mentally. The complainant intimated the same to her father, he has advised the accused not to harass the complainant in future, in spite of it the accused harassed the complainant to bring additional dowry. Accordingly, the accused No.1 to 3 have committed the offences.
4.After appearance of accused, the learned Magistrate has took cognizance for the offences punishable U/s.498A of IPC and Sec.3 and 4 of DP Act. The CC No.14957/2012 was registered against accused. Later charge was framed for the offences punishable U/s.498A of IPC and Sec.3 and 4 of DP Act, and commenced trial by issuing process against the witnesses.
5.The prosecution has examined eight witnesses out of fourteen witnesses cited in the charge sheet, as PW.1 to PW.8 and got marked documents at Ex.P1 to P13. The Magistrate has dropped the witness CW.4, who is none other than the mother of complainant, and also the learned Magistrate has gave up the police official witnesses CW.12 4 Crl.A.No.949/2019 and 13 in view of evidence of PW.8/CW.14. After completion of the evidence of prosecution side, recorded statement as provided U/s.313 of Cr.P.C., heard the arguments of prosecution side and convicted the accused No.1 to 3 for the offences punishable U/s.498A of IPC by imposing simple imprisonment for one year and to pay fine of Rs.10,000/- each, in default they shall under go simple imprisonment for four months. Further convicted the accused No.1 to 3 for the offences punishable U/s.4 of DP Act by imposing simple imprisonment for one year and to pay fine of Rs.10,000/- each, in default they shall under go simple imprisonment for four months and further convicted the accused No.1 to 3 for the offences punishable U/s.3 of DP Act by imposing simple imprisonment for three years and to pay fine of Rs.6,00,000/-, in default they shall under go simple imprisonment for one and half years.
6.Aggrieved against the judgment passed by the learned XXIV Addl., CMM., the accused/appellant have preferred this appeal by reiterating the story of the prosecution on the basis of the following grounds: 5 Crl.A.No.949/2019
i.The judgment is not sustainable or maintainable in law and on facts of the case.
ii. The trial Court has failed to even adopt and ignore the basic criminal jurisprudence that when there are two view the view that is helpful to the accused should be taken.
iii. The very invoking of the provisions of law for pronouncing the judgment is incorrect and illegal and therefore, the entire conclusions arrived at by the trial court is totally illegal and hence, not sustainable. The sentence passed against the accused does not find a place in the judgment and therefore the judgment impugned is in correct and illegal, and therefore not sustainable.
iv. The trial Magistrate could not differentiate the difference between the provisions of Indian Penal Code and Dowry Prohibition Act, and could even conclude what is cruelty as provided in the Indian Penal Code. What is dowry before marriage and marriage is also not considered by the Magistrate.
v. By any stretch of imagination the judgment is not sustainable both in law and on facts of the case. 6 Crl.A.No.949/2019
In view of the above grounds, the learned counsel for the accused/appellant prayed to set-aide the judgment of conviction and sentence passed in CC No.14957/2012 dated 2.4.2019 for the offences punishable U/s.498A of IPC and Sec.3 and 4 of DP Act and acquit the accused No.1 to 3..
7.The LCR has been secured and heard arguments of both sides and perused the entire records.
The accused counsel has relied upon the decision reported in (2018) 15 Supreme Court cases 139(Satyendra Kumar Mehra @ Satendera Kumar Mehra Vs., State of Jharkhand)
8.The following points arises for consideration of this Court are as under:
1. Whether the accused persons have made out sufficient grounds to set-aside the Judgment passed by the learned XXIV Addl., CMM., Bengaluru, in CC No.14957/2012 dated 2.4.2019 and to acquit the accused No.1 to 3, as sought for?
2. What order?
9. This court has answered the above points are as hereunder:
7 Crl.A.No.949/2019
Point No.1: In the Affirmative Point No.2: as per final order for the following:-
REASON
10.Point No.1: It is undisputed fact that the complainant is the wife of accused No.1, and accused No.2 and 3 are the mother-in-law and sister-in-law of the complainant. The prosecution papers shows that the marriage of complainant with accused No.1 was performed on 5.5.2011. At the time of marriage the parents of complainant were given Rs.2,00,000/- cash and 200 grams gold ornaments as dowry. After marriage the accused have been harassing the complainant physically and mentally by demanding additional dowry of Rs.2,00,000/- and also to bring site, and in this regard the accused persons abused the complainant in filthy language, and also assaulted, and thereby the accused harassed the complainant physically and mentally. The complainant intimated the same to her father, he has advised the accused not to harass the complainant in future, in spite of it the accused persons have harassed the complainant to bring additional dowry. 8 Crl.A.No.949/2019
11.It is pertinent to note that the complainant has went to Police Station and lodged complaint. On the basis of the complaint, crime was registered against the accused U/s.498A of IPC and Sec.3 and 4 of DP Act as referred above. The learned Magistrate on the basis of the available evidence has convicted the accused persons for the offences punishable U/s.498A of IPC by imposing simple imprisonment for one year and to pay fine of Rs.10,000/- each, in default they shall under go simple imprisonment for four months. Further convicted the accused No.1 to 3 for the offences punishable U/s.4 of DP Act by imposing simple imprisonment for one year and to pay fine of Rs.10,000/- each, in default they shall under go simple imprisonment for four months and further convicted the accused No.1 to 3 for the offences punishable U/s.3 of DP Act by imposing simple imprisonment for three years and to pay fine of Rs.6,00,000/-, in default they shall under go simple imprisonment for one and half years. Before going for further discussion, it is very much required to note the ingredients of Sec.498A of IPC and Sec.3 and 4 of DP Act. 9 Crl.A.No.949/2019
Sec.498A of IPC reads as under:
i) 498-A of IPC: Husband or relative of husband of a woman subjecting her to cruelty.
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman or
(b) harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Ingredients of Sec.498A of IPC are as under:
1.Husband or relative of husband of woman subjects to cruelty.
2.any wilful conduct which is of such a nature as is likely drive the woman to commit suicide,
3.any wilful conduct which is likely to cause grave injury or danger to life, limb or health,
4.Such cruelty may be mental or physical, and 10 Crl.A.No.949/2019
5.harassment of the woman will view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security.
Sec.3 of DP Act reads as under:
iii)Sec.3 of DP Act: (a)presents which are given at the time of a marriage to the bride(without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this act.
(b)Presents which are given at the time of a marriage to the bridegroom(without any demand having been made in that behalf): provided that such presents are entered in a list maintained in accordance with the rules made this Act: Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of customary nature and the value thereof is not excessive having regard to the fianancial status of the person by whom, or on whose behalf, such presents are given.11 Crl.A.No.949/2019
Sec.4 of DP Act reads as under:
iv) Sec.4 of DP Act: If any person demands, directly or indirectly from the parents or other relatives or guardian of a bride or bridegroom, as the case may, any dowry.
12.It is very clear from the definition of Sec.498A of IPC that there are two limbs. One is relating to physical harassment by the husband or his family members towards the complainant/victim and another is mental harassment.
So far as Sec..498A of IPC and Sec.3 and 4 of DP Act is concerned, the learned Magistrate has convicted the for the offences punishable U/s.498A of IPC by imposing simple imprisonment for one year and to pay fine of Rs.10,000/- each, in default they shall under go simple imprisonment for four months. Further convicted the accused No.1 to 3 for the offences punishable U/s.4 of DP Act by imposing simple imprisonment for one year and to pay fine of Rs.10,000/- each, in default they shall under go simple imprisonment for four months and further convicted the accused No.1 to 3 for the offences punishable U/s.3 of DP Act by imposing simple imprisonment for three years and to pay fine of 12 Crl.A.No.949/2019 Rs.6,00,000/-, in default they shall under go simple imprisonment for one and half years. It is necessary to note that to try the case, the Court must know:-
(a)What are the facts in issue in the case,
(b)What facts may or may not be proved (besides facts in issue) that is, relevancy,
(c)What kind of evidence can be allowed or received in proof or disproof of disputed facts and of (admissibility),
(d)By whom and in what manner evidence must be produced and by which party any fact is to be proved(Burden of Proof).
13.The learned magistrate just by invoking Sec.3 of Evidence Act and by relying on the word"Proved" has convicted the accused on the sole evidence of the complainant, who is none other than the wife of accused. The definition of the word "Proved" and "disproved" are as under:-
A fact is said to be proved when, after considering the matters before it, the court either believes to exist, or considers its existence so probable that a prudent man 13 Crl.A.No.949/2019 ought, under the circumstances of the particular case, to act upon the supposition that it exists.
The expression "Disproved" is defined in a similar way, except that the courts' belief or probability is that the disputed fact does not exist. A fact is paid not to be proved when it is neither proved nor disproved.
On a proper analysis, the requirements of the definition of "proved" appear to be the following:-
1.The task of the Court is to decide whether a 'fact' is proved, disproved or not proved. For the purpose, the Court "considers" the "matters" before it, and
2.After such consideration, the Court believes the fact to exist, OR
3.After such consideration, the Court considers the existence of the fact so probable that a prudent person ought, under the circumstances of the particular case, to act upon the supposition that the fact exists.
"Matters" is wider in import than "Evidence" and would include presumptions and facts of which judicial notice can be taken.14 Crl.A.No.949/2019
We must also know the meaning of act for the proper decision of the case. The Sec.3 of the Evidence Act defines "fact" as follows:-
Fact means and includes -
(1) anything, state of things or relation of things, capable or being perceived by the senses.
(2) Any mental condition of which any person is conscious.
There are five human senses, i.e., sight, hearing, smell, touch and taste, Thus, any thing, state of things, relation of things perceived by the five senses, that is, physical fact as also mental condition known to any person constitute "fact". Thus, a fact can be a perceivable fact or an intangible mental fact.
So, 'fact in issue' means and includes, according to its definition, any fact which, either by itself or in connection with other fact or facts, the existence, non-existence, nature or extent of any right, liability, disability or denied in any suit or proceeding, necessarily follows.
15 Crl.A.No.949/2019
After analyzing the meaning of fact, proved and disproved, it is very clear that there are two parts in the definition "proved". Under the first part, the Court "believes" a disputed fact to exist. The second part referred to situation whether the Court considers the existence of disputed fact "so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". At this stage, this Court find it necessary to rely upon the important decision of the Hon'ble Supreme Court reported in "AIR 1963 SC 200" (important constitution bench decision) (M.G. Agarwal and another vs., State of Maharashtra). It was held that:-
"Certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and in inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt".16 Crl.A.No.949/2019
14.It is pertinent to note that how the court should appreciate the evidence has been categorically explained under Sec.3 of Evidence Act and also by the Hon'ble Supreme Court in the above referred decision. Now the question before the Court is whether there is a consistency in the evidence of complainant and her family members is to be taken into consideration to assess whether the trial Court has rightly and in proper prospective manner convicted the accused? On perusal of the evidence of complainant- Smt.Anuradha, shows that the accused No.1 in order to put more capital to the business, he has demanded additional dowry of Rupees two lakhs, when it was refused, the accused No.1 insulted, further all the accused every day abusing her to bring cash of rupees two lakhs , or 200 grams gold or site. That on 28.11.2011, she has lodged complaint before Commission for Women, the accused persons were appeared and assured to take care and welfare properly, so she withdrawn the said complaint on 2.12.2011. Again the accused persons started to ill-treat her physically and mentally by demanding additional dowry of Rs.3,00,000/- and also threatened her. Hence, on 25.01.2012, she has 17 Crl.A.No.949/2019 lodged Ex.P1 complaint as per Ex.P1 before Chamarajpet Police. After lodging of complaint, the police came to the spot and conducted mahazar as per Ex.P2, and she produced photos, memory card and DVD marked at Ex.P4 to P8 along with CD. Such being the evidence of complainant, the evidence of father of the complainant i.e., PW.3 Mahadevaiah reveals that after four months of marriage, the complainant came to their home by weeping. when questioned, she said about demand of additional dowry, when it was refused, the complainant has returned to the house of accused.
15.It is pertinent to note that if the accused were really harassed the complainant for dowry, then they would have not allowed the complainant to enter into their house. The said version shows that something wrong with the complainant. Further evidence of the eyewitnesses PW.5 and 6 who were the neighbours reveals that the complainant used to quarrel with accused often and often within one year of marriage and left the matrimonial company. PW.2 is an attesting witness to Ex.P2 mahazar, he has deposed only 18 Crl.A.No.949/2019 about conducting of mahazar in his presence and pachas at the house of accused. PW.4 being the eyewitness has not deposed anything with regard to demand of dowry by the accused persons at the time of marriage talks. According to him, PW.3 has to perform the marriage, and to pay Rs.2,00,000/- and 200 grams of gold ornaments, and same was agreed by bride family on the demand made by the accused, accordingly, it was complied. PW.7 and PW.8 are the police officials, who have deposed about the investigational aspects of the case.
16.It is obvious to note that the learned Sr. APP has treated the witnesses PW.5 and PW.6 as hostile, and cross- examined them by putting suggestions, since, both thewitnesses never deposed in their chief examination regarding the date of incident or and about the cause for the quarrel, which is most necessary and required. During the suggestion of learned Prosecutor, the both witnesses have admitted that the complainant has raised quarrel with the accused and left the matrimonial home. But no where in their evidence referred regarding harassment by accused 19 Crl.A.No.949/2019 persons. Though it is the allegation against the accused persons in the evidence of complainant and her family members i.e., PW.3 and independent witness PW.4, that the accused persons have been harassed the complainant physically and mentally by demanding additional dowry, but not lodged any complaint with the police. The prosecution failed to produce evidence showing the description of ornaments which were alleged to be given to the accused persons. So, also no description of ornaments present in their respective statement. In addition to that, no documentary evidence is forthcoming before the Court with regard to lodging of complaint before National Commission for Women, and on their advise the accused have promised to look after the complainant properly. So the non-production of documentary evidence is not only fatal to the case of the prosecution, but also dis-ling in chain evidence. It is no doubt conviction could be recorded on the statement of solitary witness, provided the evidence must be cogent and unimpeachable. Whereas, in the case on hand neighbours of the complainant and accused, have turned hostile to the case of prosecution. The evidence of complainant didn't 20 Crl.A.No.949/2019 matches, and not corroborates with the evidence of her father i.e., PW.3 and prime eyewitness i.e., PW.4. The evidence given by the complainant is not cogent and unimpeachable. On the other hand, the evidence of complainant and the manner of investigation carried out by the I.O., creates doubt.
17.It is further pertinent to note that before accepting the version of interested witnesses, the evidence should pass the test of close and reverse scrutiny. So also, the Court must approach such evidence with a sense of reality and not from an unrealistic angle. In the present case, the sign of proving the guilt against the accused is missing, so the benefit of doubt must be given to the accused. On the basis of the word "proved" as defined in Sec.3 of the evidence Act, the learned Magistrate just on imagination passed the judgment of conviction against the accused for the offences punishable U/s.498A of IPC and Sec.3 and 4 of DP Act, which is not proper and justifiable. At this stage in support of the above reasons, this court has relied upon the following decisions of Hon'ble Supreme Court reported in:- 21 Crl.A.No.949/2019
1.AIR 1981 SC P-942= 1981 Crl.L.J. 484 = (1981) 2 SCC P-60 (Ram Ashrit Ram Vs., State of Bihar) "Before Accepting the version of interested and parties witnesses, the evidence should pass the test of close and reverse scrutiny.
2.1992 Cr.L.J., P-238(Ker) Evidence must be approached with a sense of relatity and not from an unrealistic angle.
3.AIR 1985 SC P-1224: 1985 Cr.L.J. P-1479 Circumstantial evidnce - where its chainis missing, benefit of doubt should go to the accused.
II.1995(1)Bom. Cr.475 The conviction can be recorded on statement of solitary witnesses provided if it is cogent and impeachable.
In addition to the above discussion, as submitted by the counsel for accused persons, the prosecution has not produced relevant document in the form of certificate as required under Sec.65-B of Indian Evidence Act regarding admissibility of DVD marked at Ex.P.7 and 8 in the evidence. Further, the DVD marked at Ex.P.7 and 8 were not subjected 22 Crl.A.No.949/2019 to any scientific analysis to prove its authenticity. The learned Magistrate at one stage not consider the DVD, but at another stage considers DVD, without certificate of the concerned person. Hence, the learned Magistrate has committed error in taking into consideration that CD at Ex.P.7 and 8 as evidence to prove the case alleged by the prosecution against the accused persons. So also no evidence is produced by the prosecution at least bills or invoice copies for for purchase of gold ornaments. Though there is photos marked at Ex.P4 and P5 that itself is not enough to believe as credible evidence, since, it has no negative or proof. CD. Further the prosecution would have placed evidence of Photographer, who has taken the photos. Perhaps, the prosecution has failed to place evidence of Photographer. The oral evidence of victim and her father has been attacked and also denied by the accused counsel. Such being the case, no judge should act on probability or circumstances and on investigation. Since there is no absolute material evidence on record for the conviction fo accused persons, hence, the order of sentence is to be set- aside. So, in inview of the above reasons, and on the basis 23 Crl.A.No.949/2019 of available evidence on record, this Court declined to confer the judgment of conviction passed by trial court vide impugned judgment dated 2.4.2019 in CC No.14957/2012 for the offences punishable U/s.498A of IPC and Sec.3 and 4 of DP Act, since he evidence not prove the ingredients of the offences as referred above. As such this this Court has answered Point No.1 in the Affirmative.
18.Point No.2: From the discussion made herein above, it is clear that this appeal is to be allowed. In the result, this court pass the following:-
ORDER The appeal filed by the appellants/accused No.1 to 3 U/s.374 (3) of Cr.P.C. is hereby allowed.
Consequently, the judgment passed by the Learned XXIV Addl., CMM., Bengaluru in CC No.14957/2012 is set-aside.
The accused No.1 to 3 are acquitted for the offences punishable U/s.498A of IPC and Sec.3 and 4 of DP Act.24 Crl.A.No.949/2019
The bail and surety bonds of accused No.1 to 3 stand canceled.
The deposit of fine amount returned to appellants/accused persons forthwith.
The LCR shall be returned to the concerned Magistrate Court along with copy of this judgment.
(Dictated to the Stenographer, transcript corrected by me and then pronounced in open court on this the 21st day of March, 2020) (E. RAJEEVA GOWDA) XLV Addl. City Civil & Sessions Judge Bengaluru 25 Crl.A.No.949/2019 Order pronounced in the open court vide its separate order ORDER The appeal filed by the appellants/accused No.1 to 3 U/s.374 (3) of Cr.P.C. is hereby allowed.
Consequently, the judgment passed by the Learned XXIV Addl., CMM., Bengaluru in CC No.14957/2012 is set- aside.
The accused No.1 to 3 are acquitted for the offences punishable U/s.498A of IPC and Sec.3 and 4 of DP Act.The bail and surety bonds of accused No.1 to 3
stand canceled.
The deposit of fine amount returned to appellants/accused persons forthwith.
The LCR shall be returned to the concerned Magistrate Court along with copy of this judgment.
(E. RAJEEVA GOWDA) XLV Addl. City Civil & Sessions Judge Bengaluru 26 Crl.A.No.949/2019