Karnataka High Court
Priya W/O Nagaraj Kalleppanavar vs Nagaraj S/O Siddappa Kalleppanavar on 9 April, 2019
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9 TH DAY OF APRIL, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.2671/2010
BETWEEN
PRIYA W/O NAGARAJ KALLEPPANAVAR
AGE: 31 YEARS, OCC: HOUSEHOLD WORK
R/O VIDYAGIRI
BAGALKOT.
... APPELLANT
(BY SRI. S S YADRAMI, ADV. ABSENT)
AND
1. NAGARAJ S/O SIDDAPPA KALLEPPANAVAR
AGE: 41 YEARS, OCC: PRIVATE DOCTOR
R/O KUNDARGI
NOW AT BHANTNOOR
TAL. MUDHOL
DIST. BAGALKOT
2. SMT. SITAWWA @ POOJA W/O NAGARAJ
KALLEPPANAVAR
2
D/O BHIMAPPA, TABANNA YADAHALLI
AGE: 21 YEARS, OCC: HOUSEHOLD WORK
R/O KADARKOPP
NOW AT BHANTANOOR
TAL. MUDHOL, DIST. BAGALKOT.
... RESPONDENTS
(BY SRI.: ANAND R KOLLI, ADV. ABSENT)
THIS CRIMINAL APPEAL IS FILED U/S 378(4)
CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT
AND ORDER OF ACQUITTAL DATED06.04.2010
PASSED BY THE LEARNED C.J.M.BAGALKOT IN
CRIMINAL CASE NO.08/2009 AND CONVICT THE
RESPONDENTS FOR THE OFFENCE U/S 494 OF IPC.
RESERVED FOR JUDGMENT ON : 22.03.2019
JUDGMENT PRONOUNCED ON : 09.4.2019
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT MADE THE FOLLOWING:
JUDGMENT
Though this matter is listed for final hearing, both the counsels did not choose to address the arguments inspite of sufficient 3 opportunities given and hence, reserved for judgment.
2. The brief facts of the case is that, the appellant is the complainant before the Court below filed a complaint under Section 200 of Cr.P.C. contending that her marriage was solemnized on 27/5/1991 at Kundargi village of Bilagi Taluka as per the customs and rituals prevailing in their community. The complainant led the marital life with accused No.1 at Kundargi village and accused No.1 who is the Ayurvedic Medical Practitioner opened a Clinic at Bhantanur village, Mudhol taluk. Both of them lived together at Bhantanur village and out of the said wedlock, the complainant gave birth to a child Naveen.
3. Thereafter, accused No.1 started to harass the complainant one or the other reason 4 both physically and mentally. During the subsistence of her marriage with accused No.1, accused No.1 illegally got married to accused No.2 without the knowledge and consent of the complainant. Thereafter, complainant and the father of the complainant enquired into the matter as the marriage of accused Nos.1 and 2 which was solemnized at Hanuman temple at Tulasigeri village. The marriage of accused Nos.1 and 2 has been solemnized as per the customs and rituals prevailing in their community at Hanuman Temple, Tulasigeri, during the life time of the complainant and the same is witnessed by two persons, who have witnessed the marriage and informed the same to the father of the complainant and she was also there in the house at that time. Hence, complaint is filed for the offence punishable under Section 494 of IPC against accused Nos.1 5 and 2 and the Court below declined to issue process against accused Nos.3 to 20 and accused Nos.1 and 2 represented through their counsel and the Court below after framing the charge recorded the evidence of the complainant as PW-1. The complainant also relied upon the evidence of PW-2. According to the complainant, he is the eye witness to the marriage and PW-3 is the father of the complainant. The complainant relied upon Exs.P1 to 9. After recording the evidence, statement of the accused under Section 313 of Cr.P.C. was also recorded and the Court below heard the arguments of both the sides and acquitted the accused persons. Hence, against the order of acquittal, the present appeal is filed by the complainant.
6
4. The complainant in this appeal memorandum urged the grounds that the Court below failed to take note of the documents which are marked on behalf of the complainant, particularly, the voters list showing the names and photographs of respondent No.1 and the complainant at serial No. 23 and 24 and wherein the photographs of respondent No.2 is pasted under the name of this appellant, but the learned C.J.M. Bagalkot, has illegally and arbitrarily denied to consider this fact.
5. The other ground urged before this Court is even though the complainant has produced the birth certificate of a child born out of the illegal wedlock between accused Nos.1 and 2, issued by the Primary Health Centre, Lokapur, wherein it has been very clearly stated the name of the mother of the child as Pooja 7 Nagaraj Kalleppanavar. But, even then, the learned Judge denied to consider the fact of marriage on the ground that the name of respondent No.2 in the birth certificate does not show as Pooja W/o Nagaraj Kalleppanavar. The Court below failed to take note of the fact that it is very common that once a woman gets married, her maiden name will be associated with that of her husband's name and not with her father's name. But, the learned Judge has illegally and arbitrarily ignored this fact and has refused to accept the fact of marriage between the marriage of accused Nos.1 and 2. The other ground urged before the Court is that the learned Civil Judge has wrongly held that as none of the witnesses have deposed that the marriage between accused Nos.1 and 2 has taken place "according to the customs and rituals prevailing in their community" and he disbelieves the fact of 8 marriage, which is highly unacceptable and the finding of the Court below is erroneous.
6. Having considered the grounds urged in the appeal memorandum and considering the material on record, this Court has to examine whether the Court below has committed an error in acquitting the accused persons for the offence punishable under Section 494A of IPC.
7. The complainant in order the prove the allegations made in the complaint and to prove the charges leveled against accused Nos.1 and 2 relied upon the oral evidence of PWs.1 to 3 and documentary evidence of Exs.P1 to P9. In keeping the contentions urged in the appeal, this Court has to reappreciate the evidence available on record, since this appeal is against the acquittal and this Court can reappreciate 9 both oral and documentary evidence and also the question of law involved in the matter.
8. Now, let this Court consider the oral and documentary evidence. The complainant herself examined as PW-1 and she reiterated the averments of complaint in her evidence stating that accused No.1 contacted the second marriage with accused No.2 during the subsistence of the first marriage and relied upon the documents Exs.P1 to 9. PW-1 was subjected to cross examination. In the cross examination she admits that she lived with accused No.1 at Kundargi and Bhantanur village and during the said stay he did not trouble her. Further admits that her son pursuing his education at Bagalkot and during admitting the son to school, both of them were living together at Bhantanur. It is elicited that she has filed a case against accused 10 No.1. It is suggested that accused No.1 was ill treating and the said suggestion was denied. Regarding the second marriage is concerned, it is elicited that the second marriage was taken place in the month of February 2008 and she has not produced any documents regarding the second marriage and she did not witnessed the marriage. The persons who have witnessed the marriage have told her that marriage was taken place in the temple and she admits that if any marriage is taken place in the temple, they used to issue the receipt and she has not produced any such receipt. It is suggested that the persons who have witnessed the marriage i.e. Venkanna Allimatti and Vittal Allimatti are belongs to her community and further she says that second marriage was solemnized in the month of February 2008 and the information was given in the month of April 2008. It is 11 suggested that she has created the documents in order to prove the alleged second marriage and she is giving a false evidence before the Court and the said suggestion was denied. The complainant examined the witnesses PW-2 i.e. Vittal Allimatti and in his evidence he says that complainant is his distant relative. He says that the marriage between accused Nos.1 and 2 was taken place at Hanuman temple at Tulasigeri village and he himself and Venkanna Allimatti went to the said temple and came to know about the marriage and he found the villagers in the temple. Also on enquiry, he came to know that the marriage of accused No.1 and accused No.2 was arranged and when asked accused No.1, he gave a reply in rude manner and hence, he informed the same to the parents of the complainant. He was subjected to cross examination. In the cross examination, it is 12 elicited that the deity Hanumantha is a bachelor and no marriage was used to perform in the temple of Hanumantha. It is stated that he did not witness the said marriage and the same was denied. Further suggestion was made in order to help the complainant and her parents, he is giving a false evidence before the Court and the said suggestion was also denied. The complainant examined her father as PW-3 and he says PW-2 and another person have informed about the marriage of accused Nos.1 and 2, since they have witnessed the marriage and thereafter, he also enquired with regard to the second marriage. In the cross examination, he says that marriage was taken place in the month of March and he cannot tell to whom he has enquired at Tulasigeri and Bhantanur about the second marriage. But, he claims he enquired and same in four villages. He also says that he 13 also enquired the priest. He also admit that if any marriage is taken place in the temple, they used to issue the receipt and he did not obtain any such receipt. He also admits that both the said persons Venkanna Allimatti and Vittala Allimatti are his friends. It is suggested that he has falsely deposed before the Court that the marriage was taken place between accused Nos.1 and 2 and he has falsely deposing at the instance of Venkanna Allimatti and Vittalla Allimatti.
9. The accused persons were examined before the Court below under 313 statement. Both of them have denied the incriminating evidence.
10. Now, let me see the materials available on record and in keeping the contentions urged by the complainant before this Court in this 14 appeal, there is no dispute with regard to the marriage was taken place between the complainant and the first accused and the same is also not disputed by accused No.1 during the course of the proceedings. Complainant has relied upon the evidence of PWs.1 to 3 mainly PW-2. According to PW-2, he himself witnessed the incident of marriage. It has to be noted that PW-2 in the evidence, he says that he went to the temple and found the marriage was going on in the temple and he found his villagers in the temple and he also spoken to the accused No.1. Accused No.1 gave the answer in a rude manner when he questioned him. In his evidence, he has narrated about what are the formalities of the marriage he witnessed and only says that he came to know about the marriage of accused Nos.1 and 2 and the same was taken place at Hanuman Temple at Tulasigeri village, and with 15 regard to performing of the manner of the marriage, he has not been stated and essential ingredients for the marriage has not been spoken to by PW-2. Apart from that, it is important to note that both PW-1 and PW-3 have categorically admitted that if any marriage is taken place in any temple, the temple people would issue the receipt and both of them admit that they did not collect any such receipt. In order to prove the fact of marriage, the complainant relied upon the evidence of PW-2 only. I have already pointed out that regarding the formalities of the marriage under the customs has not been spoken to by PW-2 and only he says that when he visited the temple, he came to know that the marriage was going on between accused Nos.1 and 2 and it is further important to note that PW-2 also admits that he is the relative of the complainant. Further PWs- 16 1 and 3, i.e. complainant and her father have also admits that he is the relative and PW-3 says both the persons who have witnessed the marriage are his friends. It is further important to note that according to the complainant, the marriage was taken place between the accused Nos.1 and 2 in the month of February 2008. But, it is important to note that PW-2 says he informed the same in the month of April and when he is the relative of the complainant and also as admittedly the friend of PW-3, he had informed the marriage in the month of April and only in the cross examination, he states that one of the member of his family was passed away and hence, he could not inform the same immediately. Apart from that, PW-3 says that he went and enquired the priest of the temple about the marriage and also enquired about the second marriage in surrounding four villages. 17 Both the complainant and PW-3 did not choose to examine the priest of the said temple with regard to the marriage and also none of the other witnesses who have given positive answer with regard to the second marriage have not been examined before the Court below except the evidence of PW-2.
11. I have already pointed out that he has not narrated anything about the manner of the marriage and whether the marriage was performed as per the customs which was prevailing in the community and in order to invoke Section 494 of IPC, first of all the complainant has to prove the marriage and the second marriage is valid marriage as per the customs and same has not been proved except contending that there was a marriage between accused Nos.1 and 2. The evidence of PW-2 also 18 does not inspires the confidence of the Court. He claims that he is the resident of accused No.2 and also he is the relative of the complainant. Hence, it is clear that he is an interested witness and no doubt the Court also cannot expect any documentary proof with regard to the second marriage, but, at the same time, there must be a cogent evidence before the Court in order to prove the second marriage and the same must be a valid marriage interms of the customs and rituals of particular community and the same is missing in the case on hand. The Court below while acquitting the accused also given sufficient reasons that why the Court below has not come to a conclusion that there was a marriage between accused Nos.1 and 2. The other contention of the complainant before this Court is that the Court below did not consider the document of Ex.P4- voter list 19 contending that the photo of the second wife is pasted in the electoral list as per Ex.P4. Nothing is stated in the evidence of PW-1 that photo of the second wife is pasted in the electoral list. She claims that in Ex.P4, the names of accused Nos.1 and 2 are mentioned but, on perusal of Ex.P4, the name of the complainant is mentioned as Priya Kalleppanavar and not mentioned as Pooja Kalleppanavar as contended by the complainant. The complainant also relied upon the document Ex.P9 regarding the certificate issued by the hospital that accused No.2 gave a birth to a child and in the document, it is mentioned as Puja Nagaraj Kalleppanavar. In order to prove the document Ex.P9, the complainant has not examined any of the witnesses i.e. the author of the document and when such being the case, it has to be noted that first of all Ex.P9 is not 20 proved by examining the author of the document. Apart from that, with regard to performing of the marriage between accused Nos.1 and 2 also, no material is placed before the Court and when such being the case, I do not find any error committed by the Court below in coming to the conclusion that the complainant has not proved the second marriage between accused Nos.1 and 2. Hence, I do not find any reasons to reverse the findings of the Court below to come to other conclusion.
12. In view of the discussions made above, this Court proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Vmb