Karnataka High Court
Sri A Venkatesh vs State Of Karnataka on 4 March, 2014
Author: H.S.Kempanna
Bench: H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 4TH DAY OF MARCH , 2014
BEFORE
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
CRIMINAL REVISION PETITION NO.554 OF 2010
BETWEEN
1. SRI A VENKATESH,
S/O MUNISWAMY,
AGED ABOUT 37 YEARS,
CHOWDEPALLI VILLAGE,
PUNGANUR TALUK,
CHITOOR DISTRICT.
2. SRI. M. SATISH
S/O MUNISWAMY
AGED ABOUT 34 YEARS
NO.102/1, GROUND FLOOR
II MAIN ROAD, LALJINAGAR
BANGALORE-560030
3. SMT. KRISHNA KUMARI
W/O RAMESH
AGED ABOUT 40 YEARS
NO.391, K M COLONY
6TH CROSS, SIDDAPURA
BANGALORE. ... PETITIONERS
(BY SRI. V F KUMBAR, ADV.)
AND
STATE OF KARNATAKA
BY J P NAGARA POLICE STATION
BY PUBLIC PROSECUTOR. ... RESPONDENT
(BY SRI. NASRULLA KHAN, HCGP)
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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE CONVICTION AND SENTENCE IMPOSED ON
THE APPELLANTS BY JUDGMENT DATED:31.10.2006 IN
C.C.NO.12525/01 ON THE FILE OF V ADDL.CMM BANGALORE
AND MODIFIED BY THE APPELLATE COURT IN CRIMINAL
APPEAL NO.1816/06 BEFORE THE FAST TRACK S.J (FTC-10),
BANGALORE DATED:6.4.2010 AND ACQUIT THE PETITIONERS.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This revision petition preferred by the petitioners under Section 397 of Cr.P.C. is directed against the judgment and order dated 6.4.2010 passed in Criminal Appeal No.1816/2006 by the Presiding Officer, FTC-X, Bangalore City, convicting them for the offences under Sections 498(A) of IPC and Section 4 of the D.P.Act and sentencing them to undergo 1½ years, 6 months S.I. and to pay fine of Rs.500/- for the said offences I.D. to undergo S.I. for one month and 15 days respectively for the aforesaid offences.
2. The brief facts of the case are :-
The petitioners/accused were tried by the Trial Magistrate for the offences under Sections 498(A), 506 of IPC and under Sections 3 and 4 of the D.P. Act, 1961.
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2.1. It is the case of the prosecution, PW1 is the daughter of PWs 2 and 3. She was residing with her parents in their house bearing No.10, situated at Sarakki. S.A.S. road, 6th phase, J.P.Nagar, Bangalore. A1 was residing in a portion of the said house as a tenant. In due course of time PW1 and A1 fell in love with each other and ultimately that ended in performing of their marriage on 24.7.2000. According to the prosecution their marriage was registered in the office of the Sub Registrar. At the time of marriage a sum of Rs.10,000/-, clothes, jewelerry and house hold articles were given to the accused. A2 and A3 are the brother and sister of A1. A3 was married prior to the marriage of PW1 with A1 and she was residing in her marital home situated at Siddapura in Bangalore. A2 was residing in the house of A1.
2.2. It is also the case of the prosecution after the marriage of PW1 with A1, they led a cordial marital life for some time. In due course of time PW1 conceived and became pregnant. During this period A3 was visiting the house of A1 and PW1. At that point of time, according to the prosecution, accused i.e. the husband, brother-in-law and sister-in-law of
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PW1 were subjecting her to cruelty and harassment on the ground of demand for dowry. It is the specific case of the prosecution that the accused had demanded a sum of Rs.50,000/- or in the alternative to get them a site from the parents of PW1 viz. PWs 2 and 3. Such being the position, PW1 gave birth to a male child on 18.4.2001. After the birth of the male child, accused started subjecting PW1 to more cruelty and harassment on the ground of demand for dowry as aforesaid.
2.3. It is also the case of the prosecution A1 who was staying with PW1 in a portion of the house given by PW3, left the house and started staying in the house of his sister-A3 at Siddapura where A2 was also residing at that time. PW1 went in search of her husband. At that time A3 demanded for dowry and expressed her ignorance about the whereabouts of A1. Thereafter, it is the case of the prosecution, on 11.7.2001 when PW1 had been to the house of A3 situated at Siddapura, all the accused viz. husband, brother-in-law and sister-in-law i.e. A1 to A3 subjected her to cruelty and harassment on the ground of demand for dowry in a sum of
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Rs.50,000/- cash or in the alternative to get a site in the name of A1 through PWs 2 and 3. Thereafter, PW1 returned back and informed the same to her parents and on the subsequent date i.e. on 12.7.2001, she filed first information before the respondent/police. The respondent/police on the basis of the first information filed by PW1/informant registered case against the accused and on completion of the investigation, submitted final report before the Jurisdictional Magistrate.
2.4. At the trial, the prosecution in support of their case examined in all 7 witnesses as PWs 1 to 7 and got marked exhibits P1 to P6. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. Thereafter they were called upon to enter on their defence and to lead any defence evidence that they may have in support thereof. They submitted that they have no defence evidence to lead.
2.5. The trial Magistrate on considering the oral and documentary evidence placed on record came to the conclusion that the prosecution has established the charge
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leveled against the accused and accordingly, by judgment dated 31.10.2006 convicted the accused for the offences under Sections 498(A), 506 of IPC and under Sections 3 and 4 of the D.P. Act, 1961 and sentenced each of them to undergo S.I. for a period of three years for the offence under Section 498(A) of IPC, 3 and 4 of the D.P. Act and to pay fine of Rs.1,000/- each for the said offences, I.D. to undergo S.I. for one month each and further to undergo S.I. for two years for the offence under Section 506 of IPC.
2.6. The accused being aggrieved by the said judgment and order of conviction and sentence preferred Criminal Appeal No.1816/2006 before FTC-X at Bangalore City.
2.7. The learned Appellate Judge after hearing the learned counsel for the appellants/accused and the learned Public Prosecutor for the State and on going through the records called for, by his judgment dated 6.4.2010 partly allowed the appeal preferred by the accused, set aside the order of conviction and sentence recorded for the offences under Section 506 of IPC and Section 3 of the D.P.Act, but confirmed the conviction for the offence under Section 498A
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of IPC and Section 4 of the D.P.Act and modified the sentence i.e. to undergo 1½ years S.I. for the offence under Section 498(A) of IPC and to pay fine of Rs.1,000/- and to undergo S.I. for six months for the offence under Section 4 of the D.P.Act and to pay Rs.500/- for the said offence.
2.8. The petitioners/accused being aggrieved by the judgment and order of conviction and sentence passed by the Sessions Judge in Crl.A.1816/2006 have preferred the present revision petition.
3. The learned counsel appearing for the petitioners/accused vehemently contended though the learned Sessions Judge has come to the conclusion that prosecution has failed to establish the charge for the offence 506 IPC and under Section 3 of the D.P. Act 1961, has erred in confirming the conviction and sentence imposed on the petitioners for the offences under Section 498A and Section 4 of the D.P. Act as the evidence on record does not also establish the said charge. He further submitted the evidence of PWs 1 to 3 viz. the victim/wife (PW1) and her parents (PWs 2 and 3) does not corroborate with each other in respect of
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the alleged cruelty and harassment meted out to PW1 and the alleged demand for dowry made by them. The version of these witnesses is also not corroborated from the recitals in the complaint filed by PW1 as per Ex.P4 and their testimonies before the court. Since the testimony of these three witnesses who speak to the alleged cruelty and harassment and demand for dowry is not consistent and is not corroborated with each other and further as it is also not corroborated from the evidence of PW4, an independent witness examined by the prosecution, the Appellate Judge erred in confirming the conviction and sentence for the offence under Section 498(A) of IPC and Section 4 of the D.P. Act 1961 and therefore, the impugned judgment and order of the Appellate Judge be set aside and the accused be acquitted of the charges leveled against them for the said offences also. He also contended the State has not preferred any appeal challenging the order of acquittal of these petitioners/accused for the offences under Sections 506 and Section 3 of the D.P.Act. Therefore, he submits that the impugned judgment and order of conviction and sentence passed by the Appellate Judge be set
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aside and the petitioners/accused be acquitted of the offences for which they have been convicted and sentenced.
4. On the other hand, the learned HCGP supported the impugned judgment and order of the Appellate Court i.e the learned Sessions Judge.
5. It is the case of the prosecution that the petitioners/ accused i.e. husband, brother-in-law and sister-in-law of PW1-wife of A1, had subjected her to cruelty and harassment on the ground of demand for dowry in a sum of Rs.50,000/- or in the alternative to get a site in the name of the first accused. PW1 is the victim/informant who has filed her information as per Ex.P4 before the police. The recitals in Ex.P4 goes to show that she was subjected to cruelty and harassment by the accused on the ground of demand for dowry. In the second page of the information filed before the police it reveals that the accused had subjected her to cruelty and harassment when she had gone to the house of A3 at Siddapura on 11.7.2001. It is on that date she had reiterated that she had been subjected to cruelty and harassment on the ground of demand for cash of Rs.50,000/- or in the
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alternative to get a site in the name of the first accused/petitioner.
PW1 in her evidence has stated that she was subjected to cruelty and harassment about 5 to 6 months prior to the birth of her child. The male child admittedly was born to her on 18.4.2001. If that is so, the alleged harassment according to her was about 3 to 4 months after her marriage with the first accused. She claims that A1 to A3 had subjected her cruelty and harassment in the house where she was living with her husband which was given to them by her father PW3. The evidence on record reveals the marriage of the third accused had been performed much prior to the marriage of PW1 with A1. She was residing in her marital home along with her husband and other family members at Siddapura. She was not staying with A1 and PW1 in the house provided by PW3 to his daughter (PW1) and son-in-law (A1). However, it is the case of the prosecution that she was visiting the house of PW1 and at that time she along with her two brothers (i.e. A1 and A2), were subjecting PW1 to cruelty and harassment. This evidence of PW1 is not corroborated by the
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evidence of her own parents viz. PWs 2 and 3. This has been lost sight off by both the courts. Further the evidence of PWs 2 and 3 does not reveal that their daughter PW1 came and informed them on 11.7.2001 about the alleged ill-treatment meted out to their daughter in the house of A3 at Siddapura. This version which is also basis for filing first information against the accused is not corroborated from any evidence on record. It is only a self-serving testimony of the wife-PW1 examined in the case.
The other aspect is, wife had filed petition claiming maintenance from A1. In the said claim petition it has been elicited in her cross examination that she had admitted her relationship with A1, her husband, was cordial till the first male child was born to them. If this is taken into consideration, the ground of demand for dowry about 5 to 6 months prior to the birth of the child cannot be believed. Further the Appellate Court has also come to the conclusion, there is no evidence to hold that the accused had accepted any dowry from PW1 or her parents-PWs 2 and 3.
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There is no evidence on record to show that Accused had accepted any dowry as alleged by the prosecution. According to the prosecution they were subjecting her to cruelty and harassment on the ground of demand for dowry. Therefore, rightly the Appellate Judge has set aside the conviction recorded for the offence under Section 3 of the D.P. Act. Further the allegation that A1 was found in the house of A3 and all the accused threatened PW1 with dire consequences is also not proved. Therefore the appellate court has also come to the right conclusion in setting aside the conviction for the offence under Section 506 of IPC.
Further , as already pointed out, the evidence on record is not consistent with regard to the alleged cruelty and harassment meted out to PW1 by accused. A3 had been married prior to the marriage of PW1 with A1 and she was residing in her marital home along with other family members at Siddapura. There is no cogent and clinching evidence to show she having joined with other two accused in subjecting PW1 to cruelty and harassment.
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Further, PW4, an independent witness does not say in his evidence about the accused subjecting PW1 to cruelty and harassment on the ground of demand for dowry. A perusal of his evidence goes to show that his testimony is hear-say as he has claimed that he came to know about the alleged harassment through PW3, father of PW1.
Thus on examination of the entire material on record it goes to show that the prosecution has failed to establish the charge for the offence under Section 498(A) of IPC and under Section 4 of the D.P. Act also. The learned Appellate Judge while acquitting the accused for the offences under Section 506 of IPC and under Section 3 of the D.P. Act has committed an error in holding that the evidence on record establishes the charge for the offence under Section 498(A) of IPC and Section 4 of the D.P Act.
In that view of the matter the impugned judgment and order of conviction and sentence passed on the petitioners/accused in Criminal Appeal No.1816/2006 by the Presiding Officer of the FTC-X, Bangalore City cannot be sustained.
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6. Accordingly, I proceed to pass the following order :-
i) Criminal Revision Petition is allowed;
ii) The judgment and order dated 6.4.2010 passed in Criminal Appeal No.1816/2006 by the Presiding Officer of the FTC-X Bangalore City is set aside;
iii) The petitioners/accused are acquitted of the charges for the offences under Section 498(A) of IPC and Section 4 of the D.P. Act, 1961.
Sd/-
JUDGE.
rs