Bangalore District Court
State By Amruthahalli vs Manjunath Nayak on 4 April, 2018
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 04th day of April 2018
Present:
Sri S.Nataraj, B.A.L., L L.B.,
Chief Metropolitan Magistrate,
Bengaluru
C.C. No.2380/2014
Complainant : State by Amruthahalli
Police, Bengaluru City
(By Sr. APP)
-V/s-
Accused : Manjunath Nayak
S/o Gopala Krishna Nayak,
37 yrs, R/at No.12,
Shanthinikethana
Apartment, 2nd Cross,
D Sector, Amruthanagar,
Bengaluru - 92.
(By Sampath Bapat, Naveek.K., Advocates)
Date of offence : 27-04-2009 to 09-11-2013
(As per F.I.R.)
2 CC No.2380/2014
Offences : U/S 498(A), 324 of IPC
and Sec.3, 4 of D.P. Act
Plea of the accused : Accused Pleaded
not guilty
Final order : Accused Convicted for the
offences under Section
3 of D.P. Act and Section
324 IPC
Date of Judgment : 04-04-2018
J U D G M E N T U/S 355 of Cr.P.C.
The Police Inspector of Amruthahalli Police
Station has filed this charge sheet against accused for
the offences punishable under Section 498(A), 324 of
IPC and Section 3, 4 of D.P. Act.
2. The case of prosecution in brief is that-
On 27-04-2008 the marriage of CW1 Nameeta
Nayak was solemnized with accused. Prior to
marriage, the accused received Rs.4 lakhs as dowry
from the father of CW1. After marriage, CW1 was
leading matrimonial life with the accused at No.12,
3 CC No.2380/2014
Shanthinikethan Apartment, Amruthanagar A Sector,
Bengaluru. The accused looked after CW1 properly
for one year and thereafter demanded car, insisted her
to hand over her salary by subjecting CW1 to both
physical, mental cruelty and neglected to look after the
complainant and her child. That on 28-10-2013 at 6-00
p.m., the accused voluntarily assaulted CW2 Suresh
S.Nayak - the father of CW1 with kadapa stone and
caused bleeding injury on his left hand. Thereby the
accused committed the aforesaid offences.
3. Accused is on bail. After furnishing the
charge-sheet copies, on the basis of materials placed
before the Court, has framed Charges against accused
for the alleged offences, read over and explained in the
language known to him. The accused pleaded not
guilty and claimed to be tried.
4. The prosecution in order to prove its case has
examined in all nine witnesses as PW1 to 9, got
marked the documents as Ex.P1 to 9 and material
object as MO1. On behalf of accused, the learned
counsel for defence got marked the documents at
Ex.D1 to 9 during the cross-examination of PW1.
4 CC No.2380/2014
Thereafter, the accused is examined under Section 313
of Cr.P.C. He denied the incriminating evidence,
which appeared against him and opted to adduce
defence evidence. The accused examined himself as
DW1, produced documents at Ex.D10 to 30 and got
examined one witness as DW2.
5. Heard arguments on both sides and perused the
documents.
6. The points that arise for my consideration are-
1) Whether the prosecution proves
beyond all reasonable doubt
that the accused has ill treated
and harassed the complainant
with such a cruelty, which are
sufficient to drive the woman to
commit suicide or to cause
grave injury or danger to life,
limb or health (whether
mentally or physically) and
thereby committed an offence
punishable under Section
498(A) of IPC?
2) Whether the accused committed
the offences punishable under
Section 3 and 4 of Dowry
Prohibition Act?
5 CC No.2380/2014
3) Whether the prosecution further
proves beyond all reasonable
doubt that the accused
voluntarily assaulted CW2
Suresh S.Nayak with Kadapa
Stone, thereby caused hurt and
committed an offence
punishable under Section 324
of IPC?
4) What order?
7. My answer to the above points are as under.
Point No-1: In the Negative
Point No-2: Partly in the Affirmative
Point No-3 : In the Affirmative
Point No-4 : As per final order
REASONS
Point No-1:
8. According to the prosecution, the complainant
marriage was solemnized with accused on 27-04-2008,
thereafter they were residing at Shanthinikethan
Apartment, Amruthahangar, Bengaluru. After one year
of their marriage, the accused ill treated the
complainant, harassed and subjected her to cruelty,
6 CC No.2380/2014
with an intention to drive her to commit suicide or
cause grave injury or danger to life, limb or health.
9. The accused in his defence and also through
cross-examination of prosecution witnesses denied any
ill treatment or harassment to the complainant.
10. The learned Sr.APP argued that PW1 is the
complainant, PW2 and 3 are the father, mother of
complainant, PW4 is the independent witness, who had
participated in panchayath and PW5 is the President of
Apartment Association where the complainant and
accused were residing. 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. It is further
argued that the accused in his defence evidence has
falsely deposed to overcome his illegal acts of ill
treatment and cruelty meted out to the complainant, his
evidence cannot be acceptable. The evidence of DW2
is not supported by any material to show that he was
the neighbour of complainant and accused house at
Shanthinikethan Apartment. Without there being any
7 CC No.2380/2014
material, his evidence cannot be considered and prayed
for conviction.
11. The learned counsel for accused argued that
the complainant had lodged false complaint. The
evidence of PW1 to 3 is inconsistent and not
corroborative with each other. The complainant in
order to get divorce, has filed false complaint. There
was no ill treatment or harassment as alleged by the
complainant in the complaint and 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. It is further argued that the prosecution has
to prove the willful conduct of accused, which is of
such a nature as is likely to drive a woman to commit
suicide. In support of his arguments, the learned
counsel relied on the judgment reported in 2017 (4)
AKR 18 in the case of Gangaraju and Others V/s
State, and prayed for acquittal of the accused.
8 CC No.2380/2014
12. On careful consideration of submissions of
Sr.APP and counsel for accused, I have carefully
perused the material on record. The Hon'ble Supreme
Court in (2002) 5 SCC 177 in the case of Giridhar
Shankar Tawade V/s State of Maharashtra, 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,
9 CC No.2380/2014
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"
In the decision cited by the accused 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
10 CC No.2380/2014
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. The prosecution to prove its case examined
the complainant Nameeta Nayak as PW1. She has
lodged complaint against the accused as per Ex.P1 on
09-11-2013. Ex.P7 is the marriage invitation card,
Ex.P3 to 6 are the marriage photos. It is an admitted
fact that the marriage of complainant and accused was
11 CC No.2380/2014
solemnized on 27-04-2008 at Ankola. It is also an
admitted fact that after marriage, they led marital life
at Shanthinikethan Apartment, Amruthanagar,
Bengaluru, and that from their wedlock, a male child
was born to the complainant on 26-11-2012.
14. PW1 Nameeta Nayak in her evidence in chief
deposed that after marriage talks, to perform
engagement ceremony, the accused demanded Rs.10
lakhs as dowry. Her father prior to engagement
ceremony by withdrawing Provident Fund amount
issued DD for Rs.4 lakhs to the accused. After
marriage, when they were residing at Amruthahalli, the
accused started insisting for her salary. The parents of
accused had also forced the complainant to hand over
the salary to accused. The accused demanded car
through telephone to PW2 and thrown the complainant
out of house during mid night, by saying to enter house
only after bringing the car. The accused had borrowed
Rs.30 lakhs loan for purchase of flat. To repay the said
amount, the accused insisted the complainant to get
amount. She had paid Rs.3,000/-, 5,000/-, 15,000/- and
12 CC No.2380/2014
20,000/- by way of account transfer to the accused.
The accused did not look after her properly and he
used to abuse her. After the birth of child, the child fell
ill and was admitted in ICU, but the accused did not
come to see the child. After staying at Sirsi for 5-6
months, she came to Bengaluru with her mother. The
accused insisted the complainant to get Rs.20,000/- per
month, or else she should not stay in the house. PW1
further deposed that the accused used to quarrel with
her, the neighbours advised both not to quarrel. When
her father had come to the house to invite them for
Deepavali, the accused had assaulted her father PW2
with Kadapa Stone on hand, showed chopper and
threatened him to kill. She lodged complaint as per
Ex.P1 and the police conducted mahazar as per Ex.P2.
15. PW2 Suresh is the father of complainant.
According to him, the accused demanded Rs.10 lakhs.
That Rs.4 lakhs was given as dowry to the accused by
way of DD. After marriage, the complainant and
accused were in good terms till first Deepavali.
Thereafter, the accused insisted his daughter to give
13 CC No.2380/2014
Rs.35,000/- per month and also demanded a car. The
same was informed to parents of accused. The accused
by having illicit relationship with a lady told his
daughter PW1 to quit the house and that he will not
leave her. A premature baby was born and the accused
did not come to see the child. In the month of April, he
had sent his daughter and child along with his wife to
Bengaluru. There also, the accused insisted his
daughter to hand over the salary amount. He further
deposed that he went to the house of complainant to
invite his daughter for Deepavali, at that time the
accused assaulted with Kadapa Stone on his hand.
16. PW3 Shanthi Suresh is the mother of
complainant. According to her, the accused demanded
Rs.10 lakhs dowry, out of which Rs.2 lakhs was given
as dowry. The accused initially looked after the
complainant and thereafter he demanded car and Rs.3
lakhs and insisted her daughter to pay Rs.30,000/-
every month, or else to leave the house. The accused
was also advised by his parents, inspite of it, the
accused continued to harass her daughter. After birth
14 CC No.2380/2014
of child, when she was along with PW1, her husband
had visited the house, at that time, the accused
assaulted her husband with stone piece.
17. According to PW4 Vinayak, the complainant
and accused led happy marital life for one year.
Thereafter, the accused used to ill treat the
complainant, for which himself and PW2, 3 have
advised them. After birth of child, when PW2 had
visited the house of accused, the accused assaulted
PW2.
18. PW5 Sajan is the President of
Shanthinikethan Apartment Association, Amruthahalli,
where the accused and complainant led marital life. He
deposed that for about one year, the complainant and
accused were in good terms. Thereafter their
relationship strained, he used to advise them. The
accused harassed the complainant and did not allow
the parents of complainant to come to his house. In the
year 2013, he got phone message from the complainant
that the accused assaulted her father. When he had
15 CC No.2380/2014
been to the house of accused, he noticed that PW2 had
sustained bleeding injury.
19. PW6 Bommaiah Nayak is the witness to
mahazar. PW7 Dr. Prakash is the Medical Officer who
treated PW2 and issued wound certificate at Ex.P8.
PW8 Babu is the then PI of Amruthahalli P.S., who
filed charge sheet after completion of investigation.
PW9 Siddarangaswamy is the then PSI, who registered
FIR on the basis of Ex.P1 complaint, drawn mahazar at
Ex.P2 and seized MO1, recorded the statements of
witnesses etc., and handed over the further
investigation of case to PW8.
20. The accused counsel in the cross-examination
of PW1 at para 9 elicited that prior to pregnancy of
complainant, she used to make Party on terrace with
friends. After marriage, the accused and complainant
had visited Goa and also Skandagiri Hills at
Chickballapur. At para 10, Ex.D1 to 5 photographs are
produced, which are in respect of accused holding a
baby in his hand. According to accused, he was
holding the baby with joy, for which the complainant
16 CC No.2380/2014
had denied. In para 11, Ex.D6 to 9 photographs are
confronted to complainant and suggested that they
were in happy mood having a child. But according to
complainant, they were smiling because of
circumstances. It is not the case of complainant that
Ex.D1 to 9 photographs have been manipulated by the
accused.
21. In the cross-examination of PW1 at para 8, it
is elicited as follows-
"ªÀÄUÀÄ ºÀÄnÖzÀ £ÀAvÀgÀ CzÀPÉÌ K£ÀÄ
ºÉ¸ÀgÀÄ EqÀ¨ÉÃPÀÄ JAzÀÄ
ºÉ¸ÀgÀÄUÀ¼À£ÀÄß ¸ÀÆa¹ DgÉÆæUÉ
£Á£ÀÄ ªÉÄÃ¯ï ªÀiÁrzÉÃÝ £É JAzÀgÉ
¸Àj"
From the above said version of complainant, after birth
of child, the complainant had suggested names and
sent to the accused through mail. Again in para 13 of
the cross-examination, it is elicited that in the year
2013 for Valentines day, the accused had sent e-mail
card. In same para, it is elicited that in respect of child
health, both had met the doctor, she was taking
17 CC No.2380/2014
appointment of the doctor and sometime, before taking
appointment, she was consulting the accused. In para
14, the complainant admits that herself and accused
both have taken the child to NIMHANS. In para 17, it
is elicited that the accused used to call the baby with
knick name as tiger with love. In para 18, it is admitted
that the house was named with the names of
complainant and accused. She also admits that the 20
days premature baby was born, at that time, the
accused was at Bengaluru and complainant was at
Sirsi. Since the accused was at Bengaluru, he could not
come to Sirsi at the time of delivery of baby.
22. In the cross-examination of PW2, it is elicited
that Ex.D1 to 9 photos were taken during the naming
ceremony of child. He further admits, at that time, the
accused was in a happy mood. The said photographs
are not disputed. PW3 is also cross-examined by the
learned counsel for defence.
23. From the material on record, it is clear that
the marriage of complainant with accused was held on
27-04-2008, subsequently both led marital life at
18 CC No.2380/2014
Shanthinikethan Apartment, Amruthahalli, Bengaluru.
The house was named in the names of complainant and
accused. The complainant used to make Party on the
terrace of house, prior to her pregnancy. A premature
baby was born with health issues. The complainant and
accused used to take the baby to doctor, sometime the
complainant in consultation with the accused would
take appointment with the doctor. The naming
ceremony of child was performed, Ex.D1 to 9 are the
photographs which depicts that the complainant and
accused along with child were with joy. The
complainant had sent the proposed names to be named
to the child through e-mail. The accused used to call
the child with knick name tiger with love. The said
naming ceremony was held in the year 2013. The e-
mails produced by the accused depicts that they were
in constant touch with each other even after birth of
child. It shows that the accused and complainant were
in good terms. The accused had also visited the
hospital where the child was born. The case of
complainant that the accused some time after marriage
used to demand her to pay Rs.20,000/- to 35,000/- per
19 CC No.2380/2014
month and insisted her to make payments for the bank
loan and also thrown her out of the house during mid
night are all improbable, as they were in good terms.
The complainant in her complaint has stated that the
accused used to call her as bitch and prostitute, but the
same has not been deposed while giving evidence
before the court.
24. Therefore, on careful perusal of evidence of
witnesses, the following circumstances are insufficient
and shaky in nature, to draw any inference that the
conduct of accused was to drive the complainant to
commit suicide.
a) The marriage of complainant
with accused was held on 27-04-
2008, subsequently both led
marital life at Shanthinikethan
Apartment, Amruthahalli.
b) The house was named in the
names of complainant and
accused.
20 CC No.2380/2014
c) The complainant used to make
Party on the terrace of house, prior
to her pregnancy.
d) A premature baby was born
with health issues. The
complainant and accused used to
take the baby to doctor, sometime
the complainant in consultation
with the accused would take
appointment with the doctor.
e) The naming ceremony of child
was performed, Ex.D1 to 9 are the
photographs which depicts that the
complainant and accused along
with child were with joy.
f) The complainant had sent the
proposed names to be named to
the child through e-mail.
g) The accused used to call the
child with knick name tiger with
love.
21 CC No.2380/2014
h) The said naming ceremony was
held in the year 2013.
i) In the year 2013 for Valentines
day, the accused had sent e-mail
card.
25. The above said circumstances would
improbabalize the case of prosecution. The
complainant and accused had participated in the
naming ceremony. If the accused had really ill treated
and harassed the complainant, he would not have
named the house jointly in their names, he would not
have sent Valentines day greetings to the complainant,
the complainant would not have sent the proposed
names to be named to the baby, to the accused by way
of mail. That apart if there was harassment at the hands
of accused, they would not have performed the naming
ceremony of baby with such a joy as depicted in the
photographs. The complainant and accused jointly
would not have taken the baby for consultation before
the doctor. If the accused and complainant were not in
good terms and the accused was harassing the
22 CC No.2380/2014
complainant, he would have sent the complainant back
to her parents house. Mere use of abusive words are
not sufficient to draw an inference that such words or
conduct is sufficient to drive the woman to commit
suicide. It cannot be said at any stretch of imagination
that the conduct of accused as deposed by PW1 to 5 is
sufficient to draw an inference of the guilt of accused
under Section 498(A) of IPC. The evidence on record
is insufficient to hold 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. Therefore, I answer Point No-1 in the
Negative.
Point No-2:
26. The further allegation of prosecution is that
the accused received dowry and demanded further
dowry after marriage and thereby committed the
offences under Section 3 and 4 of Dowry Prohibition
Act. Under Section 2 of Dowry Prohibition Act, dowry
means any property or valuable security given or
agreed to be given either directly or indirectly-
23 CC No.2380/2014
a) by one party to a marriage to the
other party to the marriage; or
b) by the parent of either party to a
marriage or by any other person,
to either party to the marriage or
to any other person,
at or before or any time after the marriage in
connection with marriage of the said parties.
27. The burden of proof in respect of above
Section 3, 4 of D.P. Act is under Section 8-A of D.P.
Act, which reads as under:
8-A : Burden of proof in certain
cases - Where any person is
prosecuted for taking or abetting
the taking of any dowry under
Section 3, or the demanding of
dowry under Section 4, the
burden of proving that he had not
committed an offence under those
sections shall be on him.
The constitutional validity of said provision was
challenged before the Hon'ble High Court, wherein
after considering the provision, the Full Bench of
Hon'ble High Court of Karnataka reported in ILR
24 CC No.2380/2014
1993 KAR 3035 in the case of Harikumar vs State of
Karnataka, held in para No.20 as follows -
20. Before parting with this
discussion, we may however
mention that the prime burden of
proof rests on the prosecution to
establish the basic facts and
ingredients for bringing home to the
accused the offence, under Section 3
or Section 4 of the Act and the
prosecution will have to establish its
case in this connection beyond
reasonable doubt. Once that
happens, then only the burden will
shift on the accused under Section
8A of the Act, to show that he has
not given or taken or abetted any
giving or taking of any property or
valuable security in connection with
the marriage of parties or that he has
not demanded directly or indirectly
from the parents or the relatives of
the bride or bridegroom as the case
may be, any dowry, meaning
thereby such demand if any is not in
connection with the marriage of the
said parties. The said burden of
proof on the accused as
contemplated in Section 8A of the
Act can be discharged on
preponderance of probabilities. In
25 CC No.2380/2014
this connection, we may refer to the
Decision of the Supreme Court in
the case of TRILOK CHAND JAIN vs
STATE OF DELHI, wherein the
Supreme Court dealing with
presumption under Section 4(1) of
the Prevention of Corruption Act,
1947, has clearly held that the
burden on the accused for rebutting
the presumption can be discharged
by showing mere preponderance of
probabilities in his favour and that it
is not necessary to establish his case
beyond reasonable doubt.
28. In view of above decision, the initial burden
to establish beyond reasonable doubt the ingredients of
Section 3 and 4 is on the prosecution. Once Point No-1
to 4 of Para 6 of said judgment are established by the
prosecution, the burden would shift on the accused that
such demand if any, was not in connection with the
marriage of said parties on the basis of preponderance
of probabilities. Keeping in mind, the above said
principles, whether the prosecution established the case
is required to be considered by looking into the oral
and documentary evidence on record.
26 CC No.2380/2014
29. According to prosecution, the accused taken
dowry of Rs.4 lakhs prior to marriage from CW2,
whereas the accused in his defence evidence and also
in the cross-examination of PW1 to 3 contended that
the said amount was paid by PW2 as marriage
expenses. PW1 to 3 in their evidence denied that the
said amount of Rs.4 lakhs was paid as marriage
expenses through D.D. On the other hand, it was paid
as dowry on the demand made by accused. The
accused in the cross-examination of PW1 to 3 admitted
the receipt of Rs.4 lakhs prior to marriage from PW2
through D.D. But in his evidence deposed that during
marriage talks, it was decided that the accused shall
manage the marriage and PW2 shall pay the marriage
expenses. It is also the case of accused that his house
is situated 15 kms from Ankola, PW2 was in a job, due
to non-availability of leave the accused had managed
the marriage.
30. In the cross-examination of DW1, it is
elicited that PW2 had not given any document in
writing to look after the marriage by the accused.
According to accused, he had given the statement of
27 CC No.2380/2014
account in respect of Rs.4 lakhs spent for marriage to
PW2. It is also the defence of accused during the cross-
examination of PW1 to 3 that Rs.4 lakhs amount was
paid prior to engagement, as the complainant had fell
in love with one Tejas, to avoid the same, engagement
was fixed and amount was paid to the accused.
However, PW1 to 3 during their cross-examination
denied the suggestion of accused. Therefore, the
suggestion of accused remains as suggestion. There is
no material that the complainant had fell in love with
one Tejas, she intended to marry him and to avoid the
said marriage, the engagement with accused was fixed
hurriedly and Rs.4 lakhs was paid to the account of
father of accused.
31. If PW2 had paid Rs.4 lakhs as marriage
expenses to accused, the same would not have paid
before engagement, if not the said amount was paid as
dowry to the accused. There is no material that the
accused had given the accounts of marriage expenses
to PW2. Once the accused admits the receipt of Rs.4
lakhs from the father of complainant, in the absence of
any material that the said amount was received as
28 CC No.2380/2014
marriage expenses, it has to be inferred that the said
amount was received by the accused in connection
with the marriage with the complainant and it falls
within the definition of dowry under Section 2 R/W 3
of D.P. Act.
32. It is true that PW1 and 2 in the cross-
examination admitted that as per the customs the
marriage expenses has to be borne by the bride side.
But here in this case, PW2 - the father of complainant
consistently in his evidence deposed that he had paid
the amount as dowry and marriage was performed by
them. Therefore, the contention of accused that he had
received Rs.4 lakhs for the marriage expenses from the
father of complainant cannot be acceptable and it is
nothing but a dowry punishable under Section 3 of
D.P. Act.
33. The complainant PW1, her father PW2 and
mother PW3 have deposed that after marriage, the
accused demanded the complainant to pay Rs.20,000/-
to 35,000/- per month and also to get a car. The
accused in his defence evidence deposed that at the
time of marriage, he had owned two cars. Though he
29 CC No.2380/2014
has not produced any document in respect of said
version, the prosecution has not denied in the cross-
examination regarding the said aspect. It is not the case
of complainant in the complaint or evidence before the
court that before or at the time of marriage or after
marriage, there has been an agreement between the
parties to give a car or valuable security. To attract
Section 4 of D.P. Act, there must be a demand of
dowry and dowry means any property agreed to be
given as a consideration for the marriage of the parties.
So the demand must be in relation to the agreed matter,
and if the demand matter is not related to any agreed
matter, then it is not a demand and not attracts Section
4 of D.P. Act.
34. In the present case, demand of car is not
agreed upon between the parties prior to or at the time
of marriage, as such it is not a demand at all and it
does not fall within the purview of Section 4 of D.P.
Act. Moreover there is no acceptable cogent evidence
that the accused has demanded car as dowry,
subsequent to marriage, in view of the circumstances
narrated at para No.24 of the judgment. Accordingly,
30 CC No.2380/2014
this court is of the considered opinion that the
prosecution proved its beyond all reasonable doubt
under Section 3 of D.P. Act, whereas the accused
failed to rebut the presumption through preponderance
of probabilities. In respect of Section 4 of D.P. Act, the
prosecution failed to prove its case. Therefore, I
answer Point No-2 Partly in the Affirmative.
Point No-3:
35. It is also the case of prosecution that on 28-
10-2013 at 6.00 p.m., accused had voluntarily
assaulted PW2 with kadapa stone on his left hand and
caused hurt.
36. The accused denied that he assaulted PW2
with kadapa stone. According to the learned counsel
for accused if the accused had really assaulted with
MO1 kadapa stone, there would have been a grievous
injury, it is improbable that due to assault the stone
was broken. False evidence has been given to harass
the accused.
31 CC No.2380/2014
37. I have carefully perused the oral and
documentary evidence on record. In the complaint at
Ex.P1 in the page numbered as-2, it is stated that-
"he (accused) assaulted my father
(PW2) from behind with a kadapa
stone slab with the intention of
murdering him. Somehow when
my father shielded his head with
his hand, the stone slab shattered
into pieces"
In the chief examination, PW1 at para 6 deposed that
her father PW2 had come to her house during
Deepavali, at that time the accused assaulted on his
hand with kadapa stone, the same was informed to her
over phone. That the accused threatened by showing
chopper to leave the house. In the cross-examination of
PW1 at para 20, it is suggested as follows-
"£À£Àß vÀAzÉ ¸ÀévÀB vÁªÉà UÁAiÀÄ
ªÀiÁrPÉÆAqÀÄ §AzÀÄ DgÉÆæ
UÁAiÀÄ ªÀiÁrzÁÝgÉ JAzÀÄ ¸ÀļÀÄî
ºÉýzÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è"
From the above said suggestion, the inference is that
PW2 himself sustained injury and blamed the accused.
32 CC No.2380/2014
Whereas PW2 in his examination in chief deposed that
he had visited the house of accused during Deepavali,
at about 6.30 p.m. The accused tried to assault on his
head, when PW3 shouted, immediately he had shielded
his head with hand, as a result of which he sustained
blood injury on his hand and taken treatment at Baptist
Hospital. In the cross-examination of PW2, the
accused denied the alleged assault.
38. PW3 Shanthi Suresh is the wife of PW2, who
is also an eyewitness to the incident. She deposed that
the accused assaulted her husband with MO1 on his
hand. In her cross-examination, suggestion has been
made denying the incident. PW4 Vinayak though not
an eyewitness speaks regarding the assault by accused,
on coming to know the same through PW1 to 3. PW5
is the President of Shanthinikethan Apartment, where
the house of accused is situated and incident was taken
place. PW5 though not an eyewitness to the incident,
his evidence has to be accepted to the extent that the
complainant had informed PW5 regarding the
assaulted made by accused to PW2 over phone,
immediately he rushed to the house of accused, where
33 CC No.2380/2014
he had noticed that blood was coming from the hand of
PW2. In the cross-examination of PW1 to 3 or PW5,
there is no suggestion that PW5 did not visit on that
day to the house of accused.
39. PW7 Dr. Prakash is the doctor who had
treated the injured PW2 on 28-10-2013 at 11.30 p.m.,
who visited the hospital with a history of assault. He
deposed that on examination of PW2 he found-
"injury to the left hand with pain"
Ex.P8 is the wound certificate, in which the history is
assault by a relative. In the cross-examination of PW7,
the suggestion made is as follows-
"M§â ªÀåQÛ UÀqÀĸÁzÀ ªÀ¸ÀÄÛ«£À
ªÉÄÃ¯É ©zÀÝgÉ ¤¦ 8gÀ°è PÁtô¹gÀĪÀ
UÁAiÀÄ DUÀĪÀ ¸ÁzÀsåvÉ EzÉ"
From the above, the injury sustained by PW2 and
treatment given by PW7 is admitted. In the evidence of
PW1 to 3, there is no suggestion that on 28-10-2013,
PW2 has not at all visited the house of accused at
Bengaluru. Therefore, the injury sustained by PW2 is
admitted, but according to the accused PW2 himself
34 CC No.2380/2014
sustained injury and made false evidence against the
accused. In the cross-examination of PW1 to 3 or 5,
there is no suggestion that PW2 fell on the hard surface
and sustained injury. There is no suggestion to PW7
that if the assault is made by means of MO1, there is
chance of sustaining grievous injury. Moreover, it
cannot be said in all circumstances that mere use of
kadapa stone MO1 would cause grievous hurt. On the
other hand, it is all depending on what force was used
for the assault. Further, there is no material about the
strength of MO1.
40. The seizure of MO1 by drawing mahazar is
also spoken by PW6 in the cross-examination by
Sr.APP and supported by the evidence of IO - PW9. If
there was no incident as stated by PW1 to 3 and 5, they
would not have deposed against the accused. The act
of accused clearly falls within the ambit of Section
321/324 of IPC, which is proved by the prosecution,
beyond all reasonable doubt through cogent, material
and trustworthy evidence. Therefore, I answer Point
No-3 in the Affirmative.
35 CC No.2380/2014
Point No-4:
41. In view of my finding to Point No-1 to 3 as
above, I proceed to pass the following:
ORDER
Acting under Section 248(1) of Cr.P.C., the accused Manjuanth Nayak is acquitted of the offences punishable under Section 498(A) of IPC and Section 4 of Dowry Prohibition Act.
Acting under Section 248(2) of Cr.P.C., the accused Manjuanth Nayak is convicted for the offences punishable under Section 3 of Dowry Prohibition Act and Section 324 IPC.
To hear regarding sentence. (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., 04-04-2018) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
36 CC No.2380/201404-04-2018 Orders on Sentence Heard regarding sentence.
The Sr.APP submitted that the accused is convicted for the offences under Section 3 of D.P. Act and Section 324 IPC. The offence is committed against woman and senior citizen. The punishment prescribed for Section 3 of Dowry Prohibition Act is imprisonment for a term, which shall not be less than five years and with fine amount which shall not less than Rs.15,000/- or the amount of the value of such dowry, whichever is more. The dowry received by the accused is Rs.4 lakhs, which is more than Rs.15,000/-, hence maximum punishment may be imposed for the offences proved.
The learned counsel for accused submitted that the accused has not committed any offence, he is a young person, he is having old aged parents who are depending on the accused, he is the only son and that lenient view may be taken while sentencing the accused.
37 CC No.2380/2014On consideration of contentions of both sides, I have gone through the prosecution records. Herein, the accused is found guilty of the offences punishable under Section 3 of Dowry Prohibition Act and Section 324 IPC. Prior to marriage, the accused received Rs.4 lakhs as dowry from the father of complainant. Section 3 of Dowry Prohibition Act deals with Penalty for giving or taking dowry.
Section 3(1) reads as under- If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term, which shall not be less than five years, and with fine amount which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more, Provided that the court may, for adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than five years.
38 CC No.2380/2014In view of above said provision, the minimum imprisonment is for a term, which shall not be less than five years. With special reasons, the imprisonment may be reduced from five years. Regarding fine, minimum of Rs.15,000/- or a dowry amount, whichever is more is to be imposed. The dowry amount involved in this case is Rs.4 lakhs, which is more than Rs.15,000/-.
The object of Dowry Prohibition Act, 1961 is to prohibit the evil practice of giving and taking of dowry. The Hon'ble Supreme Court in the case of Shri Bhagwant Singh V/s Commissioner of Police, Delhi
- 1983 Cri. L.J. 1081 held as follows-
"The greed for dowry, and indeed the dowry system as an institution, calls for the severest condemnation. It is evident that legislative measures such as the Dowry Prohibition Act have not met with a success for which they were designed"
Inspite of the above, it did not eradicate the dowry or at least lessening the menace. The Hon'ble Supreme Court in respect of imposition of sentence in 39 CC No.2380/2014 the case of State of Madhya Pradesh V/s Najab Khan - (2013) 9 SCC 509, held that-
"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.,."
On considering the minimum imprisonment prescribed under Section 3 of Dowry Prohibition Act and judgments of Hon'ble Supreme Court, in the instant case, considering the object of Dowry Prohibition Act enacted to prohibit the evil practice of giving and taking of dowry, it is not proper and fit case to extend the benefit of provisions of Probation of Offenders Act.
The accused is acquitted of the offences under Section 498(A) of IPC and Section 4 of Dowry Prohibition Act. The accused being an young, first 40 CC No.2380/2014 offender, only son and having old aged parents and that they are dependants on the accused, considering the nature of offence and circumstances of the case, it is proper to impose two years simple imprisonment and fine of Rs.4 lakhs (Four Lakhs only) for the offence under Section 3 of Dowry Prohibition Act. Out of said Rs.4 lakhs, if Rs.3,95,000/- is paid as compensation to the complainant under Section 357 Cr.P.C., the same would meet the ends of justice.
The offence of Section 324 IPC is also proved against accused in this case by the prosecution. The accused assaulted PW2 Suresh Nayak, who is a senior citizen who had given his daughter in marriage to the accused, who is nothing short of a father. The accused without respecting the age of PW2, he has assaulted by means of kadapa stone on the hand of PW2 and caused bleeding injury. Hence, considering the same and punishment prescribed for the said offence, the accused is to be sentenced to simple imprisonment for six months and fine of Rs.5,000/-. In the result, I proceed to pass the following.
41 CC No.2380/2014ORDER For the offence under Section 3 of Dowry Prohibition Act, the accused - Manjunath Nayak is sentenced to undergo simple imprisonment for a period of two years and pay a fine of Rs.4,00,000/- (Four Lakhs only), in default he shall undergo simple imprisonment for six months. Out of the fine amount of Rs.4,00,000/-, an amount of Rs.3,95,000/- shall be paid as compensation to the complainant
- PW1 Nameeta Nayak under Section 357 Cr.P.C. and the remaining amount of Rs.5,000/- shall be remitted to State.
For the offence under Section 324 of IPC, the accused - Manjunath Nayak is sentenced to undergo simple imprisonment for a period of six months and pay a fine of Rs.5,000/- (Five Thousand only), in default he shall undergo simple imprisonment for one month.
It is made clear that both the above sentences shall run concurrently.
42 CC No.2380/2014Office to supply a free copy of judgment to the accused forthwith. (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., 04-04-2018) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
P.W.1 : Nameeta Nayak
P.W.2 : Suresh
P.W.3 : Shanthi Suresh
P.W.4 : Vinayak
P.W.5 : Sajan
P.W.6 : Bommaiah Nayak
P.W.7 : Dr. Prakash
P.W.8 : Babu
P.W.9 : Siddarangaswamy
List of Documents marked on behalf of the prosecution:-
Ex.P.1 : Complaint
Ex.P.2 : Mahazar
43 CC No.2380/2014
Ex.P.3 to 6 : Marriage
Photographs
Ex.P.7 : Marriage
Invitation Card
Ex.P.8 : Wound Certificate
Ex.P.9 : F.I.R.
List of Material objects produced:-
MO1 : Kadapa Stone Pieces List of Witnesses examined & documents marked on behalf of the defence:
Witnesses DW1 : Manjunath DW2 : Veeraswamy Documents Ex.D1 to 9: Photographs Ex.D10 to : E-mails 25 Ex.D26,27 : Photographs Ex.D28 : CD 44 CC No.2380/2014 Ex.D29 : Application dated 26.3.2016 submitted before Family Court Ex.D30 : Certified Copy of orders passed in MC No.5078/13 CMM, Bengaluru.45 CC No.2380/2014
Judgment pronounced in the open court vide separate orders.
ORDER Acting under Section 248(1) of Cr.P.C., the accused Manjuanth Nayak is acquitted of the offences punishable under Section 498(A) of IPC and Section 4 of Dowry Prohibition Act.
Acting under Section 248(2) of Cr.P.C., the accused Manjuanth Nayak is convicted for the offences punishable under Section 3 of Dowry Prohibition Act and Section 324 IPC.
To hear regarding sentence.
(S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
46 CC No.2380/2014Orders on Sentence pronounced in the open court vide separate orders.
ORDER For the offence under Section 3 of Dowry Prohibition Act, the accused - Manjunath Nayak is sentenced to undergo simple imprisonment for a period of two years and pay a fine of Rs.4,00,000/- (Four Lakhs only), in default he shall undergo simple imprisonment for six months. Out of the fine amount of Rs.4,00,000/-, an amount of Rs.3,95,000/- shall be paid as compensation to the complainant
- PW1 Nameeta Nayak under Section 357 Cr.P.C. and the remaining amount of Rs.5,000/- shall be remitted to State.
For the offence under Section 324 of IPC, the accused - Manjunath Nayak is sentenced to undergo simple imprisonment for a period of six months and pay a fine of Rs.5,000/- (Five Thousand only), in default he shall undergo simple imprisonment for one month.
47 CC No.2380/2014It is made clear that both the above sentences shall run concurrently.
Office to supply a free copy of judgment to the accused forthwith.
(S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
The counsel for convicted accused files application under Section 389(3) Cr.P.C. for suspension of sentence. Heard both sides. Perused the application. The convicted accused intend to prefer an appeal against the judgment before the Appellate Court. During trial stage, the convicted accused was on bail. He is sentenced for S.I. for two years and fine of Rs.4 lakhs, for the offence under Section 3 of D.P. Act and six months S.I., fine of Rs.5,000/- for an offence under Section 324 IPC. The imprisonment imposed is less than three years. Reasons are satisfied. In the result, I proceed to pass the following-
48 CC No.2380/2014ORDER The application filed under Section 389(3) of Cr.P.C. by the convicted accused is allowed. Sentence is suspended till 04-05- 2018, subject to execution of bond for Rs.4 lakhs by the accused.
The suretyship of Sandeep S.Ramanathan during trial is continued.
Office to take bonds.
Call on 04-05-2018.
CMM, Bengaluru.