Bangalore District Court
State By Jp Nagara vs Donni Bidappa on 20 December, 2022
IN THE COURT OF THE 30TH ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU.
Presided over by I.P.Naik, B.A., LL.B.(Spl),
C.C No. C.C.No.25860/2015 KABC030723872015
FIR.No. 246/2015
Police Station JP Nagar P.S
Section U/s.498-A of IPC & U/s.3 & 4 of
the DP Act.
In the matter of: Complainant by State
---------Complainant
VS.
Doni Biddappa
---------------Accused
INDEX
I Introduction
II. Pre cognizance details
a:Factual Matrix of the case
b:Investigation of the case
III. Post cognizance proceedings
a:Details of Materials
b:Examination of accused
c:Hearing of parties
d:Points for determination
e:Finding of the Court
IV. Submission of the rival parties
V. Undisputed facts of this case
VI. Ocular and documents of
evidence
VII. Examination & analysis
VIII. Final Opinion/conclusion
Digitally
signed by I
IP P NAIK
Date:
NAIK 2022.12.20
15:08:18
+0530
Criminal Case No 25860/2015
Judgment U/s.355 of Cr.P.C.
C.C.No. 25860/2015
Date of Offence 11.02.2007
Complainant State by JP Nagara, Police Station.
V/s.
Accused Donni Bidappa,
S/o.K.C.Subbaiah,
Aged about 37 years,
R/at.No.1091, 23rd A Cross,
23rd Main, Sector-2,
HSR Layout,
Bengaluru City.
Offences U/s.498-A of IPC and U/s.3 & 4 of
the DP Act.
Plea Recorded on 11.04.2017 and
accused person Pleaded not guilty.
313 Statement recorded on: On 13.10.2022
Final Oder Accused is acquitted
Date of Order 20-12-2022
*****
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JUDGMENT
The PSI of JP Nagar, Police Station has filed charge sheet against accused for the offence punishable U/s. 498-A of IPC and U/s 3 & 4 of the DP Act.
I: PRE COGNIZANCE DETAILS OF THIS CASE:-
2. The factual matrix of the case:-
It is alleged that, CW1-Deepika Kullachanda Biddappa and Accused No.1 by name Donny Biddappa were working in the same company from 2003. Thereafter, they have fallen in love with each other, with the consent and blessing of their respective elders and parents their marriage has been solemnized and performed as per the hindu rites and customs at Shri Lakshmi Narasinh Venkateshwara Temple, on 11.02.2007. Thereafter, both accused and CW1 spent short time in their matrimonial home and went to United Kingdom for job. After one year both are returned back to India. Thereafter, both CW1 and accused went to Australia for job. Both have worked together at Australia, then returned back to 3 Criminal Case No 25860/2015 India, then, they have started living together in the house belonged to father of the accused situated at H.S.R layout, Bengaluru. They have intended to purchase property at Marcara District, accordingly, in the month of October 2019 accused and CW1 jointly purchased 5 acres of Coffee Plantation at Bettangala Village, Virajpete Taluk, Madikere District. They have availed hand loan of Rs.14,50,000/- while purchasing land.
3. Further, they have constructed Home Stay in the name and Style DnD while constructing Home Stay, then father of the CW1, CW2 by name Dr.C Bhaskar given amount of Rs.34,00,000/- as dowry. Accused abused the CW1 in filthy language and physically assaulted on her and also he has suspected her character, might have someielicit relationship with 3 rd person and for this reason, he was following the CW1 where ever she intended to go outside. Accused has insisted the CW1 withdrawal of the NSC, Provident funds and LIC Policies in premature. For these reasons, 4 Criminal Case No 25860/2015 accused has harassed the PW1 mentally and physically. Therefore, accused is charge sheeted.
II: INVESTIGATION:-
4. In this regard, CW1 tendered the first information statement(complaint) before the CW10- PSI Puttamadaiah. Based on the first information tendered by the CW1 on 13.4.2015, CW10 registered the case against the accused in Cr.No.246/2015 and forwarded the FIR to the jurisdictional Magistrate. As per the direction of the PI, he rushed to the spot and conducted the SO mahazar in the presence of the witnesses as place shown by the CW1. On 14.4.2016, CW11-PSI Raghu Naik, took up the filed for purpose of further investigation as per the orders of the PI of JP Nagar Police Station.
5. Further, CW11 has interrogated the witnesses and recorded their statement of the CW2 to CW7 U/s161 of Cr.P.C. Further, he has collected the marriage photos and other photos 5 Criminal Case No 25860/2015 from CW1. On 21.5.2015 accused appeared before the CW11 with orders copy of anticipatory bail. Accused has been arrested and interrogated, thereafter released on bail. Further, CW11 collected the E-mail copies and Bank statement. After completion of other formalities, IO submitted charge sheet against the accused before the Learned 5th ACMM, Bengaluru.
III: POST COGNIZANCE PROCEEDINGS:-
6. By considering the charge sheet and other materials on record, the learned 5th ACMM, Bengaluru has taken cognizance for the alleged offence and ordered to register this case against accused in Register-III.
7. After establishment of this court in the year 2015, this case has been transferred to this court. On 7.9.2016 accused appeared before this court through his counsel and got enlarged on regular bail.
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8. The copies of the prosecution papers have been furnished to the accused as required under Sec.207 of Cr.P.C. Then accused has filed application u/s.239 of Cr.P.C seeking for discharge him from the alleged offence. On merits the said application ended in dismissal as per the orders of this court dated 23.8.2017.
9. On 11.04.2017, charge is framed, contents of charge have been read over and explained to the accused in the language known to him, he pleaded not guilty and claimed to be tried, hence, the prosecution is called upon to prove its case.
(a) DETAILS OF MATERIALS:
10. In order to being home the guilt of the accused person, prosecution has examined eight witnesses and got marked documents as per the below chart:-
Rank of witnesses Name of witnesses
PW1 Smt.Deepika
PW2 Dr.Bhaskar.C
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PW3 Smt.Vimala Bhaskar
PW4 Smt. Mallika Bhaskar
PW5 Kumaraswamy
PW6 Smt. Premalath
PW7 Raghunaik.A.R
PW8 Puttamadaiah
The following 32 documents are marked on behalf of the prosecution:-
Exhibits Description of Exhibits
Ex.P.1 FIS (Complaint)
Ex.P.2 Mahazar
Ex.P.3 & 4 Marriage Photos
Ex.P.5 & 6 Photos of PW1
Ex.P.7 Bank Statement
Ex.P.8 acknowledgment
Ex.P.9 Bank statement
Ex.P.10 Bank statement
Ex.P.11 Share Transfer Certificate
Ex.P.12 Marriage Registration Certificate
Ex.P.13 B-Extract
Ex.P.14 Cc of the M.C.No.3499/2014`
Ex.P.15 E-mail
Ex.P.16 Hospital Bill
Ex.P.17 Certificate U/s.65-B (4) of Indian
Evidence Act
Ex.P.18 Receipt
Ex.P.19 Loan application
Ex.P.20 Documents of M.C.3499/2014
8
Criminal Case No 25860/2015
Ex.P.21 & 22 petition and objection filed in
M.C.No.3499/2014
Ex.P.23 & 24 Application U/s.151 of CP C and
objection
Ex.P.25 to 27 Order copies
Ex.P.28 Copy of deposition
Ex.P.29 Cc of documents
Ex.P.30 & 31 Judgment and Decree copy of
M.C.No.3499/2014
Ex.P.32 FIR
(b) EXAMINATION OF ACCUSED:
11. After closure of the prosecution evidence, an
incriminating evidence put forth before the accused while examining him U/s.313 of Cr.P.C. During examination accused not disputed in respect of his love marriage with the PW1 Smt.Deepika and marriage performed at Lakshmi Venkateshwara Temple, JP nagar, Bengaluru, a female child born to him out of his wed lock with PW1 converting of the joint account at ICICI Bank after returning from UK and Australia, purchase of the Coffee Estate at Bettangala Village, Virajapet Mercara District, running of Home Stay in the name and style DnD Orchids by availing financial assistance from PW2 C-Bhaskar, rest of things denied by the accused. 9
Criminal Case No 25860/2015
12. Further, accused has not chosen to lead evidence and no documents produced on his behalf.
(c) HEARING OF PARTIES:
13. Heard arguments of both the side.
(d) POINTS FOR DETERMINATION:
14. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, accused demanded dowry/amount from PW2 for the purpose of purchasing coffee estate, to construct Home Stay and repayment of the credit bills and thereby committed an offence punishable under Section U/s.3 & 4 of the DP Act., within my cognizance.?10
Criminal Case No 25860/2015
2.Whether the prosecution proves beyond reasonable doubt, that accused subjected to cruelty on PW1 mentally and physically by assaulting on her and thereby committed an offence punishable under Section 498-A of IPC, within my cognizance.?
3. What order.?
(e)FINDING OF THIS COURT:
15. By considering the oral and documentary evidence placed by the prosecution and hearing of the parties, my findings on the above points as follows:
Point No.1: IN THE NEGATIVE
Point No.2: IN THE NEGATIVE
Point No.3: As per final order
..................... for the following.., REASONS IV:SUBMISSION OF RIVAL PARTIES:11
Criminal Case No 25860/2015 ARGUMENTS OF THE PROSECUTION:-
16. In this case, the learned Sr.APP urged that, the oral testimony of PW1 is in detail, itself and substantive evidence to prove the guilt of the accused beyond reasonable doubt. After 2010, accused harassed the PW1 mentally and physically. Each incident is specifically deposed by the PW1 during her examination-in-chief and cross-examination, her version is believable one. By considering the cross-examination the oral evidence of PW2 to PW5 is corroboration to ocular testimony of PW1.
17. PW6 is witnesses to SO mahazar. PW8 is initial investigating officer who has registered the case and conducted the spot mahazar. PW7-PSI who has interrogated and recorded the statement of witnesses arrested the accused collected the documents and submitted charge sheet against the accused. The entire evidence of prosecution would not create any doubt in proving the guilt of the accused persons beyond reasonable doubt. 12
Criminal Case No 25860/2015 The prosecution successfully proved the guilt of the accused. Hence, prays to convict the accused in accordance with law.
18. The learned Sr.APP argued by relyed on the Judgment as under in support of his submission:-
AIR 1988 SC 2154 State of UP Vs. Krishna Gopal and Anr.
(2002) 1 Crimes 309 Ganatha Pathnayak Vs. State of Orissa State Vs. Murthy @ Pungi (Hon'ble Karnataka High Court) AIR 2021 SC 1165 Jaideep Majamdar Vs. Bharati Jaiswal Majamdar.
AIR 2013 329 Vajresh Venkata Roy Venekar Vs. State of Karnataka AIR 1994 SC 1418 State of West Bengal Vs. Orilal Jaswal & Anr.
2013 AIR SCW 5025 S Govindaraju Vs. State of Karnataka AIR 2003 SC 258 Anthony D. Souza Vs. State of Karnataka 13 Criminal Case No 25860/2015 AIR 1998 SC 458 pavan Kumar & Anr Vs. State of Hariyana ARGUMENTS OF DEFENCE:
19. As against this, the learned counsel for the accused argued on following grounds, 19.1: In this case, delay in lodging the complaint is more than 8months. The said delay is not properly explained by the prosecution. In this regard, the learned counsel has relied on the Judgment of Hon'ble Apex Court rendered in Ramdas & Anr. Vs. State of Maharashtra [(2007) 2 SCC 170] 19.2: The PW1 to PW4 categorically stated that, accused became unemployed in the year 2008. He has not contributed any single pie for payment of loans, payment of credit cards, maintenance of family. But in Ex.P.21 PW1 herself sated that, accused maintaining the DnD Orchids Home Stay and his estimated income per month of Rs.1/- Lakh and Rs.3.5/- Lakhs per year from coffee estate. From this itself it shows that, accused is employed and running Home Stay in the name and style DnD Orchids and cultivating the Coffee Estate.
14
Criminal Case No 25860/2015 19.3: PW1 has filed suit for partition and claiming that, 80% share in the property purchased at Virajpete Taluk, along with accused on the basis of that she has invested 80% money in purchasing of land property as well as construction of the home stay. If anything is helpful to her version, she has deposed directly. But to any question against her claim in partition suit, she pleaded ignorance. This itself shows that, she has not deposed the truth before court.
19.4: PW1 stated that, without consulting with the Doctor on the basis of the Google Search she has taken Epidural Injection. In her cross-examination she deposed that, taking Epidural Injection may causes permanent mental disorder. So without advice of the expert/doctor she has taken Epidular injection against the advise of accused.
19.5: Further, PW1 spend huge amount for unnecessary expenses in order to destroy the economic condition of the accused. During the month of March to May every year, Home Stay business will reach its peak due to vacations. Under such circumstances, PW1 insisted to accused to visit and stay at Home Stay in order to destroy the income of the accused from the customers. 15
Criminal Case No 25860/2015 19.6: Accused and PW1 have jointly purchased 5 acres of coffee estate in Bettangala Village, Virajpet Taluk, by obtaining personal loan from the Bank. Further, she stated that, the said property is purchased by obtaining financial assistance from PW2- Dr.C.Bhaskar. PW1 stated that they have developed and renovated the old structure situated in the Coffee Estate and make it as DnD Orchids Home Stay. According to prosecution case, these works are developed from the financial assistance of PW2. But PW2 himself is not aware about the accused invested the amount in development of the Old structure and to renovate the same, situated at the Coffee Estate.
19.7: Prior quitting the job accused found alternative business and himself has started a software company. The mother of the accused and mother of PW1 by name Smt.Vimala Bhaskar were directors to the said company. This versions is not at all disputed by the PW1. This version is categorically admitted by all witnesses. This itself reveals that, accused is financially sound.
19.8: PW1 has filed petition for dissolution of the marriage in M.C.No.3499/2014 before the Hon'ble 6 th Additional Principal Family Court. In the said case, accused applied for visiting rights to his daughter. When an order was passed by the Hon'ble 6 th 16 Criminal Case No 25860/2015 Additional Principal Family Judge and granted visiting rights to accused to meet his daughter, in order to avoid or curb said visiting rights of the accused, this false case has been launched against the accused.
19.9: The learned counsel for the accused strongly relied on the Bank statement which clearly shows that, accused earned more than salary earned by the PW1, it reflects from the statement of the joint account maintained by the PW1 and accused at ICICI Bank. Further, accused has preferred appeal against the order of the dissolution of the marriage performed between PW1 and accused before the Hon'ble High Court of Karnataka. Inspite of that, they have produced the certified copy of the order before this court and got marked at Ex.P.30 & P.31.
19.10:PW1 particularly stated that, she has used the amount taken from her father in order to repay the credit card bills and other bills. But she has used said amount for paying installments. She herself voluntarily withdrawn the amount from NSC Certificate, FD, PF and LIC falsely. But PW1 has created false story, accused insisted accordingly, she has forceably drawn amount from NSC, FD. P.F & LIC etc., in premature due to insisted by accused. 17
Criminal Case No 25860/2015 19.11:The learned counsel for the accused urged in respect of injuries sustained to PW1. According to her versions accused assaulted on her. But she has deposed before this court that as per her advice of her father in law, she stated that, she has fallen while she was getting down from the stair case and sustained injuries. This version is not at all proved by the prosecution by examining the Doctor who has treated the PW1.
19.12.In this regard, the learned counsel for the accused relied on the Judgment of the Hon'ble Supreme Court rendered in [Amar Singh Vs. State NCT Delhi (AIR SC 4894)], wherein their lordship opined that, there is material discrepancies between the oral testimony and medical evidence. It is not believable one. Their lordship opined that, prosecution failed to establish the guilt of the accused person beyond reasonable doubt. In this regard also, the oral testimony of PW1 in respect of medical evidence is quite contrary. Therefore, it does not prove the guilt of the accused person beyond reasonable doubt. It is concocted story.
19.13:In this case, PW2 deposed before this court with lot of improvements which is contrary to statement given before the IO. The evidence of PW3 is also not reliable one. She has stated against the prosecution case. She has not deposed about the actual facts of 18 Criminal Case No 25860/2015 the case. PW1 to PW4 categorically stated that, accused has trapped the PW1 calls. In this regard, there is no substantive evidence except ocular evidence. Further, argued in respect of installation of the GPS to car which his drive by the PW1. Now a days in every car there is installation of GPS. The oral testimony of PW1 itself shows that, accused picking the PW1 for coffee at her office, it converted into suspect on her character and following her. This story is concocted for filing of this case.
19.14:The learned counsel for the accused specifically urged that, PW5 is stock witnesses to PW2. Whenever case is filed by the PW1 or PW2, he is always witnesses to those cases. In this case he deposed contrary to the evidence of PW1 and PW2. Therefore, his evidence is not at all believable one. An ocular evidence of PW5 is hear say evidence which is not corroborated with the oral testimony of PW1 and PW2.
19.15:PW6-Smt.Prema latha and her mother are in house maids in the house of PW2. According to prosecution case, IO conducted the SO mahazar in front of the house of PW2. But she stated that, police conducted SO mahazar inside the house of PW2. Further, stated that, she was not present on the above said date of the alleged incident. It is specific case of the prosecution that, 19 Criminal Case No 25860/2015 accused made loud voice and picked up quarrel with the PW1 and PW2 on 29.03.2015, at about 7.00pm The prosecution relied on evidence of the blood relative witnesses. So it creates doubt whether the said incident has occurred or not. When accused asked for executing of certain documents in order to avail crop loan, PW1 unnecessarily refused by giving silly reasons on one or the other pretext. In support of defence learned counsel has relied on following decisions:-
AIR 2007 SC 3146 M.Srinivasalu Vs. State of A.P (2007) 9 SCC 721 Appasaheb & Anr. Vs. State of Maharashtra.
19.16.After purchasing the coffee estate at Bettangala Village both accused and PW1 have developed and renovated the Home Stay and have given name as DnD Orchids Home Stay without help and assistnce from PW-2. Accused has never demanded money from the PW2, PW-2 has voluntarily shared the sale consideration to PW-1 and PW-4, out sale consideration, he has sold the property situated at JP Nagar. PW1 to PW4 never stated that the accused insisted his wife PW-1, to bring additional dowry. By considering their version, PW1 availed financial help from her father. This itself does not proved the guilt of the accused person U/s.3 & 4 of the DP Act. In this regard, the learned counsel has relied on the Judgment of Hon'ble Apex Court rendered in Appa Saheb & Anr Vs. State of 20 Criminal Case No 25860/2015 Maharashtra, [(2007) 9 SCC 721] and M.Srinivasalu Vs. State of A.P [AIR 2007 SC 3146].
19.17.In these Judgments, their lordship opnied that, giving and taking of properties or valuable security at the time of marriage, essential ingredients for demand of dowry. Their lordship held that using of money from the in law by the accused for the urgent domestic expenses or purchasing of the manure cannot be treated as demand of dowry. There is total contradictions between oral testimony of PW1 to PW4 in respect of demand of dowry. Therefore, picking up one line from one place and another place in another line is not leads to demand of dowry. Therefore, the prosecution utterly failed to prove the guilt of the accused for the offence punishable U/s.3 & 4 of the DP Act.
19.18.PW1 herself instigated the accused. The oral testimony of PW1 is not at all trust worthy one and not at all reliable to prove the guilt of the accused. By considering all these aspects, prosecution fails to prove guilty of accused beyond reasonable doubt, hence the learned counsel prays to acquit the accused from the alleged offences.
V: UNDISPUTED FACTS BETWEEN RIVAL PARTIES:-
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20.By considering the oral testimony of PW1 to PW4 and explanation rendered by the accused while recording his statement U/s.313 of Cr.P.C. it disclosed that, following facts are undisputed facts between rival parties i.e., PW1 and accused.
20.1. PW1 and accused were served as engineer in one software company prior to their marriage.
20.2. Prior to marriage both PW1 and accused fell in love with each other.
20.3. PW1 and accused got love cum arrange marriage with the blessing and consent of their respective parents and elders in the year 2007 at Lakshmi Venkateshwara Temple, JP Nagar, Bengaluru.
20.4. One female child by name Mita, is born to PW1 and accused out of their wed lock.
20.5. After marriage, PW1 and accused have served in different companies out of India ie., UK and Australia. 20.6. PW1 and accused have purchased the coffee estate from their joint account situated at Bettangala village, Virajapet Taluk, Mercara District in the month of October 2009, thereafter, home stay constructed therein.
VI: OCULAR AND DOCUMENTARY EVIDENCE 22 Criminal Case No 25860/2015 OCULAR EVIDENCE OF PW1/VICTIM/FIRST INFORMANT:-
21. In this case, PW1-Smt.Deepika victim and first informant, she has deposed that, after returning from Australia, they have decided to convert her single account into joint account maintained in ICICI Bank, along with accused. Further, they have decided to purchase land. Accordingly, in the month of October 2009, they have purchased 5 acres of Coffee Estate in Bettangala Village. In this regard, they have availed hand loan of Rs.14,50,000/-. The said loan is repaid for the one year. In the month of August 2010 her father by name Dr.Bhaskar.C has given Rs.35/- Lakhs out of the sale consideration received by him at the time of selling his property. They nave named the coffee Estate as DnD Orchards. Further, she deposed that, the amount received from her father they have built the Home Stay in the year 2011. She has invested 80% to 85% amount in constructing the Home Stay. On 27.8.2010 she went to hospital for delivery, as she started bleeding without any pain. As per Doctor's advice she has admitted to Hospital and administered with pain killer injection. In the 23 Criminal Case No 25860/2015 meanwhile, she has taken Epidural injection after that, accused started neglecting her and has not shown any love and affection towards her. Due to taking of Epidural injection.
22. PW1 further, deposed that from the date of her marriage with the accused until she left him her matrimonial house he has frequently changed 6-7 software companies and became unemployee for a period of 3 years. She has alone maintained the house, repaid the loan and paid the school fees expenses of her daughter. In this regard, her father has given her Rs.11,15,000/- for payment of the credit card bills. As per the pressure from the accused, she has taken amount from PF, LIC and NSC Certificate, in premature.
23. Further, PW1 stated that, after taking Epidural accused started suspected her character and always brutally behaved with her and also without the knowledge of her, he has installed GPS in the car and has also trapped her mobile phone. Due to traffic jam 24 Criminal Case No 25860/2015 when she was unable to reach the office within time, at that time, accused has suspected the PW1 and also questioned why she has not applied lipstick. When she was pregnant, at that time, her father donated funds for purchase car, accused purchased the car from the amount given by the PW2 and got registered the said car in the name of his mother.
24. In the month of 2013, accused has posted E-mail Ex.P-15, stated that, if she interested to continue her matrimonial life with him she has to comply to the terms imposed by him and also asked that all properties of her father should be transferred in his name. If she is not ready to continue lead matrimonial life with him, she shall take mutual divorce from the accused. In this regard, accused and herself contacted with two lawyers at HSR layout, due to their matrimonial dispute conciliation was held that Woodlands hotel on 5.1.2014. Uncle of PW1 by name Sheshadri participated on behalf of her and one Senior Advocate Sri.M.C.Nanaiah participated on behalf of the accused. According to the terms of the conciliation, 25 Criminal Case No 25860/2015 and advice of elders and well wishers accused has agreed to repay the loan and PW1 has agreed to pay amount of Rs.18,000/- towards maintenance her in laws, daughter. Thereafter, PW1 was returned to her matrimonial Home.
25. PW1 further specifically stated that, on 21.3.2014 she had planned to visit Coffee Estate along with her daughter and parents and stay in home stay. At that time, accused demanded pay the amount from her towards expenses. When she has questioned the payment of the amount, suddenly, accused hold her with hairs and banged her head on the table many times and she sustained and had whiplash injury. When she went hospital, her father-in-law has insisted her to give false information about injury to doctor, in order to have good relationship with her in laws and husband, she has given false information to doctor at the time of taking treatment for whiplash injury, sustained injury while she get down, fallen on staircase. This incident has intimated to Senior advocate Sri.M.C.Nanaiah.
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26. Further, she had informed to her parents. Her parents came to her in laws house and advised to accused not to behave badly with her daughter, at that time, accused stated that, PW-1 is, his property and he may assault or he may also kill her. On 10.4.2014, while she was giving bath to her daughter in bath room, at that time, accused asked for her signature on relinquishment deed, for documentation in the Sub Registrar office at Virajpet. She has replied that she can accompany him to the Sub Registrar Office, Verajpet after discussing with her parents and Senior Advocate Sri.M.C.Nanaiah. At that time, accused tried to assault on her. Immediately, her father in law rescued her and same is intimated to Senior Advocate Sri.M.C.Nanaiah, through phone call, he has called them to his office PW1 and her parents went to office of Senior M.C.Nanaiah and explained about incident before the said Senior Advocate and also stated regarding threat to lead her matrimonial life with accused. Thereafter, she decided to leave the matrimonial home. Accordingly, she returned back to her parents' 27 Criminal Case No 25860/2015 house on 11.4.2015. Then, they have decided to get dissolution of marriage by taking divorce from accused. In this regard, she has issued legal notice in the month of July 2014. The said notice is duly served on the accused. In spite of that, he has not replied to the said notice. In this regard, accused has made phone call to her father and pick up quarrel with him. In the month of August 2015, she has moved the petition for dissolution of marriage before the Family Court. In the Month of December 2014 accused picked up quarrel with school staff in respect of taking admission of his child without informing him. In this regard, she informed to JP Nagar Police.
27. On 13.02.2015, Hon'ble VI Family Court granted visiting rights of accused, to meet with his daughter on 2 nd and last Sunday of every month of English Calender. On 29.3.2015, at about 7.00pm, accused came to leave his daughter to house of PW2, at that time, he picked up quarrel with the PW1 and demanded to transfer the entire property in his name. Thereafter, she has lodged 28 Criminal Case No 25860/2015 the complaint Ex.P.1 Thereafter, police came to the spot and drawn SO mahazar Ex.P2. Further, she stated that she has produced the photos which are got marked at Ex.P.3 to P.6.
28. PW1 produced the Bank statement and medical documents which are got marked at Ex.P.7 to P.9. Ex.P.20 to 28 are pleadings presented before the Hon'ble VI Prl. Family Court, Bengaluru, in M.C.No.3499/2014. Ex.P.30 and P.31 are Judgment and Decree passed by the Hon'ble VI Principal Family Court in M.C.No.3499/2014, on 01.08.2019.
OCULAR EVIDENCE OF PW2:-
29. PW2 Dr.Bhaskar.C deposed that, PW1 taken Epidular injection thereafter accused started picked up quarrel with her and repeatedly stated that he do not like the PW1. He has also specifically stated that, accused was unemployed and his daughter/ PW1 has alone maintained her in laws family. Accused worked in different companies. He has provided loan to purchase land 29 Criminal Case No 25860/2015 property at Mercara and also constructed farm house in the place of one small hut.
30. PW2 further stated that, in the year 2009-10, PW1 was pregnant, at that time, he has given amount of Rs.7,50,000/- to purchase car through D.D. By taking the said amount, accused purchased the car and got registered the said car in the name of his mother. After female child born to PW1, accused insisted her to get bank account and properties details belonged to him. Further, he deposed that, accused trapped the mobile of his daughter.
31. In the year 2013 accused sent e-mail Ex.P15 to PW1 and demanded to bring Rs.11/- Lakh from him otherwise, he would give divorce to his daughter/PW-1. He further stated that, his daughter has to alone spent amount of Rs.18,000/- for family maintenance every month as per the conciliation held before Senior Advocate Sri.M.C.Nanaiah at woodlands hotel. One day, PW1 planned to visit Home Stay in Summer. At that time, accused has assaulted CW1 30 Criminal Case No 25860/2015 her in front of her daughter and caused injury. In this regard, she has taken treatment at Narayana Hrudayalaya.
32. In the month of March 2014, they have explained the incidents happened in the house of in laws from the accused before Senior Advocate Sri.M.C.Nanaiah, at that time, they have warned and advised to the accused to lead best matrimonial life with PW1. Thereafter, accused has assaulted on her daughter and insisted her to leave his house. Thereafter, PW1 called him and stated that, if she residing with accused, he may kill her. Thereafter, she came to his house. Before that, they have intimated to the HSR Layout Police Station.
33. PW2 further stated after lapse of 10 days accused asked the PW1 to subscribe signature on the relinquishment deed, in replied stated that she will accompany him after consulting with her parents and Senior advocate Sri.M.C.Nanaiah. Immediately, accused tried to assault on her. Thereafter, they decided to move 31 Criminal Case No 25860/2015 the divorce petition. On 13.02.2015, Hon'ble Family Court granted visiting rights to accused, when accused came to drop his daughter Mita, at that time, accused has abused her in filthy language in the family Court room for a period of 15 minutes. On 29.3.2015 when accused came to his house to leave his grand daughter, at that time, he has abused him in filthy language an insisted to put signature of the PW1 on the relinquishment deed. Thereafter, PW1 lodged complaint.
OCULAR EVIDENCE OF PW3:-
34. PW3 Smt.Vimala Bhaskar who is none other than the mother of PW1 she stated that, her husband has given Rs.35/- Lakhs to accused for the purpose of construction of Home Stay at Coffee Estate. Accused has not interest over the female child. On 29.3.2015 he came to her house leave her grand daughter, at that time, he picked up quarrel with her daughter PW1 and he has harassed her physically and mentally and also accused has installed GPS in car and trapped the mobile of her daughter PW1. 32
Criminal Case No 25860/2015 OCULAR EVIDENCE OF PW4:-
35. PW4 Mallika Bhaskar stated that, accused insisted for transfer of entire salary of PW1 and her property in his name or in the name of his father. After lapse of certain years, accused started to harassed the PW1. Accused is not interested about female child.
After birth of the female child, accused changed his attitudes left his job and became unemployed. At that time, her sister alone has maintained her matrimonial house out of her earnings. Accused always suspected the character of PW1 and trapped her mobile and installed GPS in car without her knowledge. One day, he picked up quarrel with the PW1 and banged her had on the table. When accused insisted for transfer of the entire property of her father to his name, PW1 refused the same, at that time, accused assaulted on her. She is unable to tolerate the mental torture and physical harassment from accused and PW1 decided to get divorce from the accused. In this regard, she has filed divorce petition before the Hon'ble Family Court.
33
Criminal Case No 25860/2015 OCULAR EVIDENCE OF PW5:-
36. According to prosecution case, PW5 independent witnesses it case. He stated that, accused was un employee and demanded money from the PW1 and she alone borne all expenses.
But accused has harassed the PW1 for a period of 6 to 7 years. He picked up quarrel with PW1 in respect of female child born to her. He has advised to both accused and PW1, live together without any cruelty or harassment, inspite of that, accused has brutally behaved with PW1 and always suspected her character.
OCULAR EVIDENCE OF PW8/IO
37. PW8-PSI Puttamadaiah, who is initial investigating officer, he specifically deposed that, on 13.4.2013, at bout 1.45pm he has received Ex.P.1 complaint from the PW1, based on that, he has registered the case against the accused in Cr.No.246/2015 and forwarded the FIR Ex.P.32 to learned Vth ACMM, Bengaluru. 34
Criminal Case No 25860/2015 Thereafter, he has rushed to the spot and conducted SO mahazar Ex.P.2 in the presence of witnesses.
38. PW6-PremaIatha stated that, on 13.4.2015 police came to the house of PW-2 drawn the mahazar in respect of quarrel.
39. PW7-PSI-Raghu Naik specifically deposed that on 14.6.2015 he has interrogated witnesses and recorded their statement thereafter, he has collected documents from the PW1. After completing other formalities he has submitted charge sheet against the accused.
40. By considering the admitted facts and entire oral testimony of PW1 to PW5, in order to ascertaining cruelty to PW1 from accused in this case, I have relied on certain Judgment of Hon'ble Apex Court as under:-
35
Criminal Case No 25860/2015 [2008] 15 SCC 582 State Of A.P vs M. Madhusudhan Rao
16.In order to appreciate the rival stands, it would be useful to notice the statutory provisions. Section 498-A I.P.C. makes "cruelty"
by husband or his relative a punishable offence. The word "cruelty" is defined in the Explanation appended to the said Section. Section 498-A I.P.C. with Explanation reads thus:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be [1962] Supp 1 SCR 104 (2004) 13 SCC 174 (2004) 10 SCC 570 (2004) 10 SCC 583 (2007) 3 SCC 755 punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation-For the purpose of this section, "cruelty" means--
(a) Any wilful 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 or 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 meet such demand."
17.Thus, providing a new dimension to the concept of "cruelty", clause (a) of Explanation to Section 498-A I.P.C. postulates that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute "cruelty". Such wilful conduct, which is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman would also amount to "cruelty". Clause (b) of the Explanation provides that harassment of the woman where such harassment is with a view to coercing her or 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, would also constitute "cruelty" for the purpose of Section 498- A I.P.C.
18. It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State, is attracted in the instant case, every harassment does not amount to "cruelty" within the 36 Criminal Case No 25860/2015 meaning of Section 498-A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498-A I.P.C [2007] 4 SCC 511 Samar Ghosh vs Jaya Ghosh Para 101 "No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
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(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
41. By following the law laid down by their lordship in the above cited Judgments, I have examined and analyzed oral testimony of PW1 to 6 along with the documents produced by the prosecution.
VII: EXAMINATION AND ANNALYSE:
38
Criminal Case No 25860/2015 POINT No-1 and 2;
42. These two points are arises from same set of facts, in order to avoid repetition facts and reasons, both points taken together for common discussion
43. In this case, PW1 specifically stated and taken contention that, after construction home Stay at Coffee Stated she has planned to visit the coffee estate along with her daughter, at that time, accused demanded payment of the expenses. When she questioned the payment of the amount, at that time, accused has banged her head on the table. Thereafter, she was hospitalized at Nararyana Hrudyalaya situated at HSR Layout for taking treatment for whiplash injury, she has given false information to Doctor in order to maintain a good relationship with the accused and her in laws.
44. During cross-examination, the learned counsel for the accused specifically stated that, she herself fell from the stair case 39 Criminal Case No 25860/2015 and sustained injury. But this specific suggestions is denied by PW1. In order to prove the injury, prosecution has relied on the photo which is got marked at Ex.P.6, without supporting certificate as contemplated U/s.65-B(4) of Indian Evidence Act. Therefore, the photo marked at Ex.P.6 is inadmissible in evidence as law lead down by Hon'ble Apex Court in Anvar P.V. V/s P.K. Basheer (AIR 2015 SC 180).
45. Further, she has relied on certain documents to show that, she sustained injury which are got marked at Ex.P.16. Without examining the doctor and without producing wound certificate . Further, Ex.P.16 is payment receipt, it shows that, PW1 taken treatment and paid Rs.1,590/- for treatment. Therefore, it is difficult to rely on the oral testimony of PW1 and she sustained injury when accused assaulted on her.
46. In this case, PW1 to PW4 specifically stated that, accused without the knowledge of PW1 accused installed GPS in the 40 Criminal Case No 25860/2015 newly purchased car which was registered in the name of mother- in-law of PW1. In this regard, IO has not investigated and also she has not produced any mobile for ascertaining her cell phone was trapped. Ex.P.3 discloses that, KA-01-MF-2893 is in the name of Devan Jairam on 15.02.2010
47. In the course of cross-examination she has not disputed that, she had no difference of opinion in their matrimonial life up- to 2012 with accused. During cross-examination of PW2, the learned counsel for the accused tried to elicit from her mouth, husband of PW4, son of one learned advocate, they are rich person, compared to economic status of accused and his parents. Therefore, PW-2 to 4 insisted the accused to leave from life of accused. This facts not at elicited from the mouth of PW-1 to PW-3 or no suggestions put to them in cross-examination comparing from status of accused with PW-4 and her home, her sister and parents are degraded the accused is not acceptable facts. 41
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48. PW2 stated that, he has given Rs.7,50,000/- through DD for the purchase of car. This fact is totally denied by the accused during examination U/s. 313 of Cr.P.C and he answer to question No 12, he has purchased new a car as per wishes of his in laws and said car got registered in the name of his mother in order to get benefit.
49. In this case, PW1 to PW4 not disputed in respect of accused started his software company, accused's mother and mother of PW1 Smt.Vimala Bhaskar were Directors to the said company. But there is no specific explanation from either of the parties whether the said company is in existence? If not in existence, what is the result of its liquidation. This fact is totally silent.
50. In this case, the learned counsel for the accused specifically reiterated from the mouth of PW2 in respect of evidence deposed in his examination in chief which is not stated before the 42 Criminal Case No 25860/2015 IO. These are totally improvements. According to settled law, mere improvements is not contrary to the prosecution case In this case, PW1 stated that, they have met Senior Advocate for 3 times. But according to his evidence, they have met the Senior Advocate Sri.MC.Nanaiah for more than 3 to 5 times. No doubt, whenever difference of opinion between the husband and wife, elders may sit for conciliation and give advice to lead best matrimonial life. In this case also, Senior Advocate Sri.M.C.Nanaiah had made their best effort to resolve the difference of opinion arised between the PW1 and accused. In-spite of that, and accused not joined together and lead best matrimonial life.
51. PW1 further stated that she alone has spent amount towards maintenance of her matrimonial home, school expenses and also repaid the loan EMI's. This incriminating evidence is put at questioned No.10. At the time of recording of statement U/s.313 of Cr.P.C. At that time, accused explained that, why he has left his job after finding alternative employment same is reads thus:- 43
Criminal Case No 25860/2015 ಪ್ರಶ್ನೆ 10- 1 ನೇ ಸಾಕ್ಷಿ ಮುಂದುವರಿದು ಇವರು ತಮ್ಮ ಸಾಕ್ಷ್ಯದಲ್ಲಿ ಆರೋಪಿಯಾದ ನೀನು ಐದಾರು ಸಾಫ್ಟ್ ವೇರ್ ಕಂಪನಿಗಳನ್ನು ಬದಲಾಯಿಸಿ, ಉದ್ಯೋಗ ಇಲ್ಲ ದೇ ನಿರುದ್ಯೋಗಿಯಾದಾಗ ಮನೆಯ ಖರ್ಚು, ಮಗುವಿನ ಖರ್ಚು, ಸಾಲದ ತಿರುವಳಿಯನ್ನು ತಾನೇ ನೋಡಿಕೊಂಡಿದ್ದು , ಎಪಿಡೋಲರ್ ಚುಚ್ಚು ಮದ್ದು ತೆಗೆದುಕೊಂಡಿರುವುದರಿಂದ ನೀನು ತನ್ನ ನ್ನು ಅನುಮಾನ ಮತ್ತು ಕ್ರೂ ರಿಯಾಗಿ ನೋಡುವುದು ಎಂದು ಸಾಕ್ಷಿ ನುಡಿದಿರುತ್ತಾರೆ, ಅದಕ್ಕೆ ನೀವೇನು ಹೇಳುತ್ತೀರಿ?
ಉತ್ತರ - ನಾನು ಪರ್ಯಾಯ ಉದ್ದೇಶ ಪ್ರಾರಂಭಿಸಿ ಮಾಡಿತ್ತಿದ್ದು ಕೆಲಸ ಬಿಟ್ಟಿರುತ್ತೇನೆ.
52. During cross-examination of PW1, she stated that, accused started independent company. Her mother and mother in law were Directors to the said Company. Further, she voluntarily stated that, her mother PW3 resigned from the Directorship of the said company as per the direction of the accused. In this case, PW1 herself produced her oral evidence deposed in M.C.No.3499/2014 before the Hon'ble 6th Additional Family Court, Bengaluru, same is got marked at Ex.P.28. During her cross-examination, she stated at para No.18 & 19 that, accused is owner of an software company further, she explained that there were no employees in the said company, accused alone established the said software company. Further, stated that, her mother resigned from the Directorship of the said company after lapse of 8 months. Further, he voluntarily 44 Criminal Case No 25860/2015 stated that, her mother has resigned to the post of Director as per the direction of the accused. In this regard, she has E-mailed. Same may be produced before this court, but not produced till today. Further, she stated that, the amount of Rs.25,000/- was given to her mother as compensation. This fact is not disputed by the PW1 in her cross-examination before the Hon'ble Family Court. It clearly shows that, accused quit the job and he established his own software company. So explanation given by the accused to question No.10 is not false or frivolous it is genuine one.
53. PW1 not disputed that when she was pregnant at that time, accused gifted one diamond ring to her. Further, it is specific contention of the accused that, her father in law had given amount to purchase car. There is specific allegations against accused that, accused has purchased the car out of the amount given by his father in law/PW2 but he got registered the said car in the name of his mother. In order to prove this contention prosecution has produced the B-extract, which is got marked at Ex.P.13. 45
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54. The recitals of Ex.P.13 discloses that, on 25.10.2010 sedan car got registered in the name of Smt.Devanthi Jairam. But this incriminating evidence is put forth to accused at question No.12, But accused state that, as per the advice of the PW1 and his in laws ie., PW2 and PW3 they have gifted amount to him for purchase of car. The said car is registered in the name of his mother who is non tax payer. This fact is aware to PW1. By considering this portion of explanation and that of the cross- examination of PW1 before the Family Court, it discloses that, in order to get reimbursement and in order to avoid payment of tax to State, accused has got registered the said car in the name of his mother. As observed by this court, everyone avoiding payment of tax it is not good sign to the economically developing country like India. Therefore, there is probability is that the accused purchased the car out of the amount given by his in laws.
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55. In order to establish the accused was unemployed prosecution relied on the Bank statement which is got marked at Ex.P.7 to P.11. It discloses that, from 2019 to 2012 both accused and PW1, have earned money and same is deposited in the joint account maintained in ICICI Bank. Therefore, I am of the opinion that, accused was not an unemployed. PW1 herself pleaded at Ex.P.21, petition produced before the Family Court at para No.6. She pleaded that, income from DnD estimated at Rs.1/- Lakh per month from the Home stay and Rs.3.5/- Lakhs from the Coffee Estate. During her cross-examination before the Hon'ble Family Court, at that time, she admitted that, accused deposited the income through coffee estate from the Home stay deposited in the joint account. But she stated that the said amount is very meagre. By considering all these aspects, I am of the opinion that, accused is earning member and status of accused is unemployed, it is not at all a believable aspect. Therefore, this court opined that the explanation given by the accused is not false. Therefore, the Judgment relied by the learned Sr.APP in Antony D Souza's case 47 Criminal Case No 25860/2015 (supra), with great respect I am of the opinion that, said principles are not applicable to the case on hand.
56. In this case, both parties not disputed in respect of conciliation (Panchayathi) held before the Senior counsel Sri.M.C.Nanaiah and another person who is the uncle of PW1 by name Sheshadri. PW1 invested money for 3 months for payment of EMI. The prosecution relied on the most important document ie., Ex.P.15 the recitals of Ex.P.15 reads thus :-
E-Mail dated 01.01.2014, timing 6.44pm Option to separate by mutual Opinion to stay together consent
1. Pay earning till date of seperation 13 years of moratorium on all activities with and petition filing calculated at 40% her family CTC =fits @ 10% annual compounding interest
2. 100% child custody and support Cannot own property in kullchanda family and visitation rights to be owned by or accept anything (property, cash, gifts) only mother or father from her family in future. Pay off at 10% annual compounding for all monies received thus far.
3. No claims to any other property On inheritance cannot sell property, movable or immovable or intellectual, Beneficiary will be kullachanda family wether owned, purchased or members 48 Criminal Case No 25860/2015 inherited. No claims for medical or expenses or damages. No liability on anything in the past.
4. Payment of agreed amount of Only male inherits property approx 1.15cr. In full on the day of the decree
5. To leave home after settling all Family means Donny, Deepika and Mita bills and outstanding surrendering cards on all joint accounts And petitioning for divorce successfully in the court.
6. Co-operate on all sales of property jointly owned during cooling off period.
7. Surrender all rights to the child to the other parent, in case of any help required wether monetary emotions or intellectual from the parent not holding rights to the child.
57. This electronic documents supported with certificate produced by the PW1 got marked at Ex.P.17. This incriminating evidence put forth to accused while examining the accused U/s.313 of Cr.P.C. at question No.13 he explained for the said question, same is reiterated for better appreciation:-
ಪ್ರಶ್ನೆ 13- 1 ಮತ್ತು 2 ನೇ ಸಾಕ್ಷಿದಾರರು ಮುಂದುವರಿದು ಇವರು ತಮ್ಮ ಸಾಕ್ಷ್ಯದಲ್ಲಿ 2013 ರ ಆಗಸ್ಟ್ ತಿಂಗಳಿನಲ್ಲಿ ತಾನು ಆರೋಪಿಯಾದ ನಿನ್ನ ಜೊತೆಗೆ ಚರ್ಚಿಸಿ, ಮದುವೆ ಸಂಬಂಧ ಮುಂದುವರಿಯ ಬೇಕಾದಲ್ಲಿ ತನ್ನ ತಂದೆ, ತಾಯಿ ಹಾಗೂ ಸಂಬಂಧಿಕರೊಂದಿಗೆ 13 ವರ್ಷಗಳ ಕಾಲ ಮಾತನಾಡಬಾರದು, ಭೇಟಿಯಾಗಬಾರದು, 49 Criminal Case No 25860/2015 ತನ್ನ ಹೆಸರಿನಲ್ಲಿ ಮತ್ತು ಜಂಟಿ ಹೆಸರಿನಲ್ಲಿರುವ ಎಲ್ಲಾ ಆಸ್ತಿಯನ್ನು ಆರೋಪಿಯಾದ ನಿನ್ನ ಅಥವಾ ನಿಮ್ಮ ಕುಟುಂಬದ ಪುರುಷ ಸದಸ್ಯ ರ ಹೆಸರಿಗೆ ಖಾತಾ ವರ್ಗಾಯಿಸಬೇಕು, ಇಲ್ಲ ವೇ ಇಬ್ಬ ರೂ ಸೇರಿ ಸಮ್ಮ ತಿಯ ಮೇರೆಗೆ ವಿವಾಹ ವಿಚ್ಚೇಧನ ಮಾಡಿಕೊಳ್ಳೋಣಾ ಅಂತ ಇ-ಮೇಲ್ ಮಾಡಿದ್ದೀ ಅಂತ ಸಾಕ್ಷಿ ನುಡಿದಿರುತ್ತಾರೆ, ಅದಕ್ಕೆ ನೀವೇನು ಹೇಳುತ್ತೀರಿ?
ಉತ್ತರ -"1 ನೇ ಸಾಕ್ಷಿ 2013 ಆಗಸ್ಟ್ ನಲ್ಲಿ ತನ್ನ ಸಹೋದರಿಯಾದ 1 ನೇ ಸಾಕ್ಷಿಯೊಂದಿಗೆ ಚರ್ಚಿಸಿ ನನ್ನ ದಾಂಪತ್ಯ ಜೀವನ ಬಿಡುವುದಾಗಿ ಹೇಳಿದಾಗ, ಒಂದು ದಿನ ರಾತ್ರಿ 2 ನೇ ಸಾಕ್ಷಿ ನಮ್ಮ ಮನೆಗೆ ಬಂದು ಒತ್ತಾಯಿಸಿದಾಗ ಈ ಬಗ್ಗೆ ದೂರು ಕೊಡಲು ಹೋಾದಗ ಭ್ರಷ್ಟ ಪೋಲಿಸ್ಅಧಿಕಾರಿ ಪ್ರಕರಣ ನೊಂದಾಯಿಸಲಿಲ್ಲ ಪ್ರತಿ ದೂರು ಕೊಟ್ಟ ರುತ್ತಾರೆ, 2 ನೇ ಸಾಕ್ಷಿಯಿಂದ ಪಡೆದ ಹಣ ಮರಳಿ ಕೊಟ್ಟು ಅವರು ಯಾವುದೇ ಆಸ್ತಿ ಬೇಡ ಎಂದು ಈ ಮೇಲಿನಲ್ಲಿ ಬರೆಯಲಾಗಿದೆ."
58. By considering this E-mail Ex.P.15 and defence taken by the accused, the learned counsel for accused rightly urged that, accused has responded to the PW1, due to her behaviour and she abatement to accused do so. After 2012, there is difference of opinion arose between PW1 and accused, in such situation each moment will be suspected by either of the parties, ie., husband and wife.
59. During the cross-examination of PW1 before the Hon'ble Family Court she has admitted in respect of accused lodged complaint against her father at first line, page 24 of ExP-28 her 50 Criminal Case No 25860/2015 ocular evidence, same is reiterate, "it is true that, respondent(accused in this case) has lodged a complaint against my father". It clearly discloses that, for silly reasons both of them always suspected each other and rushed to the Police Station, which is not a healthy development in their matrimonial life.
60. The learned Sr.APP urged that, there might be discrepancies in the oral testimony of prosecution witnesses as per the law settled by the Hon'ble Supreme Court of India in A.Shankar Vs. State of Karnataka in (AIR 2011 SC 2302). Bhajan Singh Vs. State of Hariyana rendered in (AIR 2011 SC 2552). Due to lapse of some time, memory capacity and other things, always discrepancies occurred in the prosecution case. But the said discrepancies affects on the very core of the prosecution case. In such situation, the said discrepancy amounts to contradictions and also it is foundation for creation of serious doubt in the prosecution case. 51
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61. In this case, PW1 to PW4 repeatedly stated that the accused was unemployee. But this contention itself is destroyed by themselves and by PW1, by producing bank statement and from the oral evidence deposed before this court as well as before the Hon'ble 6th Additional Family Court, Bengaluru. The said deposition is got marked at Ex.P.25.
62. Further, PW1 specifically stated that, accused has assaulted on her. In this regard, she has taken treatment at Narayana Hrudayalaya, HSR layout, Bengaluru. And accused tried to assault on her while she was giving bath to her daughter. Further, it is specific case of the prosecution that these two incident have occurred within the premises of her matrimonial home, this court cannot expect the evidence from the neighbor to prove this aspect. An evidence of neighbor is required. But her evidence is not sufficient and her evidence is reliable one to believe that the accused assaulted on her, but she has given false information to the Doctor as per the request of the accused and her father in law that 52 Criminal Case No 25860/2015 she sustained injury while she fell from the stair case. This fact is disclosed at Ex.P.21 petition presented before the Hon'ble 6 th Family Court, for dissolution of the marriage in MC.No.3499/2014, after filing petition PW-1 has not lodged FIS against accused and her in laws immediately regarding physical cruelty from accused. She was kept silent for period of eight months.
63. The learned counsel for the accused has taken contention that, there was in ordinate delay in lodging the complaint. The said delay is not properly explained by the prosecution. In this regard, the learned counsel relied on the Judgment of Hon'ble Apex Court rendered in Ramdas's case (supra).
64. In this case,PW5 who is close family friend of PW1 deposed in examination in chief as per the information, collected from PW2. During cross-examination he stated that, he has deposed in another criminal case lodged against the accused and his father. He is not aware who filed petition for divorce. He never 53 Criminal Case No 25860/2015 visited to Family Court. Further, he stated that, he has given statement before the IO in respect of PW1 lent Rs.35/- Lakhs amount to accused and PW1. Further, he stated that, in his presence 3 times, amount of Rs.1/- Lakh each was given. The learned counsel for the accused specifically taken contention that, PW5 being closed friend and PW1 in order to support his case, he deposed evidence before this court. This suggestions is denied by PW5. Whatever evidence deposed by the PW1 and PW2, he has improved his version in the oral evidence. It is exaggerated one. Therefore, his evidence is not believable one.
65. According to prosecution case, PW6 is witnesses to SO mahazar. She deposed that, on 13.4.2014 police came to the alleged place of incident ie., house of PW1. At that time, herself and her mother/CW5 by name Smt Jayashree were present and police have conducted SO mahazar. During her cross-examination, she stated that, number of residential houses are situated adjoining to the house of PW2. She subscribed her signature on Ex.P.2 mahazar 54 Criminal Case No 25860/2015 outside the house belonged to PW1. Further, she stated that, she is not aware about who has written the mahazar and she is not aware about the other witnesses who have put their signature to SO mahazar.
66. During cross-examination PW1 categorically stated that, herself and her mother are working as maids in the house of PW1 for the last 15 years. So this itself shows that no other independent witnesses are available to Io while he was drawing mahazar, her evidence is also not believable one.
67. In Ex.P.1 and examination in chief of PW1 and PW2 it is categorically stated that, accused came to house of PW1, at about 7.00pm on 29.03.2015 and created new sense and picked up quarrel with the PW1 and PW2. According to prosecution case, this incident is not occurred with the 4 corners of the wall. It is outside the house of PW1. In order to prove this fact, IO has not examined any independent witnesses who were present at the time of 55 Criminal Case No 25860/2015 occurrence of the said incident or neighborers. Under such circumstances, I am of the opinion that, by considering the long time of difference of opinion PW1 and accused, it is difficulty to believe the version of PW1. In this regard, accused has taken specific stand is that, in order to destroy his visiting rights, PW1 has built up such a case. According to prosecution case, said incident has occurred on 29.3.2015. The present complaint is lodged on 13.4.2015. In this case, there is 15 days delay in lodging this complaint. A delay is tendering first information statement itself not fatal to prosecution case, effects of delay on core of prosecution case based on facts and circumstance of each case. In this case, PW-1 has tendered Ex P-1 FIS after lapse of eight months after filing Ex P-21 petition before Hon'ble family court and 15 days delay from 29/03/2015. As per Ex P-32 FIR J.P.Nagar police station, situated 1km away from place of incident. Said delay is not properly explained by the prosecution. By considering entire facts of this case, no overacts of accused. A recitals of Ex.P.1 FIS reveals that, it is preferred on the basis of legal expert, based on the 56 Criminal Case No 25860/2015 information collected by the PW1. Therefore, I am of the opinion that, it is after thought FIS.
68. In order ascertain, proof of cruelty, Hon'ble Apex Court lead down principles in following cases;
[2007] 4 SCC 511 Samar Ghosh vs Jaya Ghosh Para 41 "-----------------------------The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits."
[2019] 5 SCC 384 Rupali Devi Vs. State of Uttar Pradesh & Ors.
14. "Cruelty" which is the crux of the offence under Section 498A IPC is defined in Black's Law Dictionary to mean "The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage (Abuse, inhuman treatment, indignity)". Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill- treated are aspects that cannot be ignored while understanding the meaning of the expression "cruelty" appearing in Section 498A of the Indian Penal Code.
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Criminal Case No 25860/2015 By following aforesaid principles laid down by their lordships, I have examined ocular evidence of PW-1 deposed in cross examination on 26/03/2019, a portion of cross examination reiterated for batter appreciation reads thus;
" ------------ಮದುವೆಗೆ ಮೊದಲು ನನ ಹೆಸರು ದೀಪಿಕ ಭಾಸ್ಕ ರ್ ಎಂದು ಇರುತ್ತದೆ ಹಾಗೂ ಮದುವೆಯ ನಂತರ ದೀಪಿಕ ಕುಲಚಂಡ ಬಿದ್ದ ಪ್ಪ ಎಂದು ಆಗಿರುತ್ತದೆ. ಈಗ ನೀವು ಉದ್ಯೋಗ ಮಾಡುವ ಸ್ಥ ಳದಲಿ ಯಾವ ಹೆಸರು ಇದೆ ಎಂದರೆ ಸಾಕ್ಷಿ ನಾನು ಮದುವೆಯ ನಂತರ ನನ್ನ ಹೆಸರು ಬದಲಾಯಿಸಿಕೊಂಡಿದ್ದು ಈಗ್ಗೇ 2 ವರ್ಷಗಳ ಹಿಂದೆ ಕಾನೂನಿನ ಅಡಿಯಲ್ಲಿ ಪ್ರಮಾಣ ಪತ್ರದ ಮುಖಾಂತರ ನನ್ನ ಹೆಸರನ್ನು ಪುನಃ ದೀಪಿಕ ಭಾಸ್ಕ ರ್ ಎಂದು ಬದಲಾಯಿಸಿಕೊಂಡಿದ್ದೕೆನೆ ಎಂದು ಎನ್ನು ತ್ತಾರೆ.
ಈಗ್ಗೇ 2 ತಿಂಗಳ ಹಿಂದೆ ನಾನು ಆರೋಪಿಯ ವಿರುದ್ಧ ಭಾಗಕ್ಕಾಗಿ ಅಸಲು ದಾವೆಯನ್ನು ಒ.ಎಸ್ನಂಬರ್ 61/2019 ರಂತೆ ಕೌಟುಂಬಿಕ ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಸಲ್ಲಿಸಿರುತ್ತೇನೆ ಎನ್ನು ವುದು ನಿಜ. ಯಾವುದೇ ಕಾರ್ಪೋರೇಟರ್ ಸೆಕ್ಟ ರ್ ನಲ್ಲಿ ಒಬ್ಬ ವ್ಯ ಕ್ತಿ ಕೆಲಸಕ್ಕೆ ತೆಗೆದುಕೊಳ್ಳು ವಾಗ ಆತನ ಹಿಂದಿನ ಕೆಲಸಗಳ ಬಗ್ಗೆ ವಿದ್ಯಾರ್ಹತೆ ಮತ್ತು ನಡತೆ ಎಲ್ಲ ವನ್ನೂ ಸಂಪೂರ್ಣವಾಗಿ ಪರಿಗಣಿಸುತ್ತಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಹೌದು ಎನ್ನು ತ್ತಾರೆ. ಸಾಕ್ಷಿ ಮುಂದುವೆರದು ಎಲ್ಲಾ ಕಂಪನಿಗಳ ಬಗ್ಗೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಆದರೆ ನಮ್ಮ ಕಂಪನಿಯಲ್ಲಿ ಆ ರೀತಿ ಮಾಡುತ್ತಾರೆ ಎನ್ನು ತ್ತಾರೆ. ನಿಮ್ಮ ಬಗ್ಗೆ ಕಂಪನಿಗಳಲ್ಲಿ ವಿಚಾರಿಸುವಾಗ ಅವರು ನೀವುಗಳು ಯಾವುದಾದರೂ ಸಿವಿಲ್ ಅಥವಾ ಕ್ರಿಮಿನಲ್ವ್ಯಾಜ್ಯ ಗಳಲ್ಲಿ ಇದ್ದೀರಾ ಎಂದು ಪರಿಶೀಲಿಸುತ್ತಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಈ ಬಗ್ಗೆ ಗೊತ್ತಿಲ್ಲ ಎನ್ನು ತ್ತಾರೆ.
ನಾನು ಭಾಗಕ್ಕಾಗಿ ಸಲ್ಲಿಸಿರುವ ದಾವೆಯಲ್ಲಿ ನನ್ನ ಹೆಸರನ್ನು ದೀಪಿಕ ಕುಲಚಂಡ ಬಿದ್ದ ಪ್ಪ ಎಂದು ಹೇಳಿದ್ದೆನೆ ಎನ್ನು ವುದು ಸರಿ . ನಾನು ನನ್ನ ಉದ್ಯೋಗದಲ್ಲಿ ಅಥವಾ ಬೇರೆಯಾವುದಾದರೂ ಅತಾರಿಟಿಗಳ ಮುಂದೆ ಮೋಸ ಮಾಡುವ ಉದ್ದೇಶದಿಂದ ನನ್ನ ಹೆಸರನ್ನು ದೀಪಿಕ ಭಾಸ್ಕ ರ್ ಎಂದು ಬದಲಾಯಿಸಿಕೊಂಡಿದ್ದೇನೆ ಎನ್ನು ವುದು ಸರಿಯಲ್ಲ --------"58
Criminal Case No 25860/2015 It reveals 2 years back PW1 changed her name as Deepika Bhaskar from Deepika Kulchand Biddappa. But name of the accused is continuing same earlier to her marriage. The learned counsel for the accused urged that if any person applying for job corporate sector, no criminal or civil case against him. In order to avoid complications, the first informant/PW1 changed her name and get job in corporate sector. So this probables the defence taken by the accused. PW1 and accused being software engineers they have not trusted each other. Without discussion with the accused and consultation with doctor, PW1 has taken Epidular Injection, which is dangerous to her health. So by considering all these aspects, I am of the opinion that, prosecution failed to prove the guilt of the accused persons for the offence punishable U/s.498-A of IPC.
69. According to prosecution case, after returning to India, accused has insisted the PW-1 bring money from PW-2, in order to purchase coffee estate at Kodagu district, to construct home stay 59 Criminal Case No 25860/2015 therein and repayment of credit bills. Further, accused became unemployed, no money to maintain house and his parents. In order to prove this aspects, the prosecution relying oral testimony of PW-1 and 2, Bank statement. In this case PW-1 specifically deposed that, her personal account converted into joint account with the accused. In the year 2009 both have decided to purchase Coffee Estate at Kodagu District. Accordingly, in the month of October 2009 both accused and PW1 have purchased 5 acres of land at Battangala Village. In this regard, they have obtained hand loan vide joint account for Rs.14,50,000/-.one incompleted house was situated therein. Then, both the accused and PW1 planned to convert the said land into Home Stay. During the month of August 2010 PW2 Dr.C.Bhaskar who is none other than father of the PW1 sold his house. PW2 has given amount of Rs.35,00,000/- to PW1 out of the sale consideration amount, from the said amount, they have repaid the hand loan availed for the purpose of purchasing the coffee estate. The said coffee estate is in the name DnD Orchids. In the year 2011 the entire incomplete home situated at coffee estate 60 Criminal Case No 25860/2015 has been converted into Home stay by spending amount received from her father. Further, she state that, her father has given Rs.30/- to Rs.40/- Lakhs in cash and golden coins. She specifically stated that, she has spent 80% of the amount for the purchase of land and construction of the home stay in the said coffee estate.
70. PW2-Dr.C.Bhaskar stated that, in the year 2010 he has given Rs.30/- to Rs.40/- Lakhs to PW1 and accused for the purpose of purchasing 5 acres of land and for construction of the farm house. The same fact has deposed by the PW3 in her examination in chief on 27.11.2021. PW4 Smt.Mallika Bhaskar who is none other than the sister of the PW1 has stated that, accused is un employee and he was in need money for his family maintenance her father has given Rs.35/- Lakhs for the purchase of the land in the joint name of PW1 and accused and constructed the Home Stay.
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71. During cross-examination of PW1 she stated that, at the time of purchasing of the coffee estate, they have not consulted with her father. But her father was aware about purchasing of the property at Kodagu. Further, she deposed in her cross-examination that, the said property has purchased as per the decision taken by herself as well as the accused. Further, she stated that, her father sold the property and he has given share towards of the sale consideration to PW1 and PW4. PW2 stated that, he has given Rs.30/- to Rs.40/- Lakhs for the purpose of purchasing land at Kodagu.
72. During cross-examination the learned counsel for the accused specifically put forth the portion at para No.9 of the cross- examination of PW1 at para No.2, he has denied inrespect of he has not given any statement before the IO stating that, he has given Rs.30/- to Rs.40/- Lakhs to purchase land at Mercara District. 62
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73. In cross-examination of PW3,the learned counsel for the accused specifically suggested that, accused never sought for money from the PW2 at the time of constructing of Home Stay. This suggestions is denied by the PW3 in her cross-examination. During cross-examination of PW4 she categorically stated that, her father voluntarily given her share of Rs.35/- Lakhs each to herself and her sister PW3. Further, she stated that, accused has insisted the PW1 bring additional amount of Rs.11/- Lakhs. This version is not deposed by the PW1 in her evidence. This portion of the evidence of PW4 is exaggerated one.
74. By considering the oral testimony of PW1 and PW2 and question No.7 put forth to accused, while examining him U/s.313 of Cr.P.C. he stated that, he has never sought for loan from the PW2. His father-in-law has voluntarily given the share out of the sale consideration for construction of the Home Stay. Further, accused stated that as per the say of PW1 he has used the said amount for construction of the Home Stay. At this stage, this court relied on 63 Criminal Case No 25860/2015 the objection Ex.P.22 filed by the accused in M.C.No.3499/2014 at para No.6. same is reiterated as under:-
"Para No.6:- The respondent admits partially the averments made in the para 5 of the petition.
The respondent initially had planned to construct low cost cottages for an estimated cost of the Rs.12,00,000/- only.
The Petitioner's father distributed funds to both his daughters, which he obtained as consideration in a property sale. In October2010 one year after acquiring DnD Orchids, the petitioner insisted on using the idle cash of Rs.30,00,000/- that was available to her from her father for the construction of the Holiday Home.
The petitioner convinced the respondent to used the above funds instead of availing a bank loan for the same.
It is true that the petitioner and respondent decided to put up 4 bath room Holiday Homes in4.5 acres of coffee estate with latest facilities.---------"
75. This itself shows that, at the time of purchase of the land at Bettangala Village, accused as well as the PW-1 never availed loan from PW2. Further, PW1 and accused themselves paid sale consideration by availing hand loan. Therefore, the story put forth by the prosecution in respect of the accused insisted to PW1 to bring amount from the PW1 for the purpose of purchasing the land at Bettangala village and for construction of the Home Stay is not at all believable one. Further, it is held that, accused never insisted 64 Criminal Case No 25860/2015 to bring amount of Rs.11/- Lakhs to purchase coffee estate. The accused himself stated that, as per convinced by the PW1, they have used Rs.30/- Lakhs towards construction of the Home Stay. Thereafter, it is held that, amount given by PW2 is not amounts to demand of dowry. By considering all these aspects, I am of the opinion that, prosecution failed to prove the guilt of the accused persons beyond reasonable doubt. Accordingly, Point No.1 & 2 answered in the Negative.
VIII: CONCLUSION/FINAL DECISION:
76. Point No.3: forgoing reasons to above point No.1 & 2, I have proceed to pass the following:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused is acquitted of the alleged offences punishable U/s. 498-A of IPC., & U/s. 3 & 4 of the DP Act.
The bail bond of accused and surety extended for further 6 months in order to comply Sec.437-A of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.65
Criminal Case No 25860/2015 By considering matrimonial dispute between rival parties and their economic condition, granting of compensation U/s.357 of Cr.P.C. is declined.
(Dictated to the Stenographer and after corrections made by me and then pronounced by me in the Open Court on this the 20th day of December, 2022).
(I.P Naik.) 30 A.C.M.M., B'lore.
th 66 Criminal Case No 25860/2015 Judgment pronounced in Open Court vide separate:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused is acquitted of the alleged offences punishable U/s. 380 of IPC., The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437 (a) of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
The prosecution fails to prove the guilt of the accused persons beyond reasonable doubt, hence, granting of compensation U/s.357 of Cr.P.C. is declined.
(I.P.Naik) 30th Addl.C.M.M., B'lore.67
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