Karnataka High Court
State Of Karnataka vs Sri M Jithendra Kumar @ Anandraj on 9 January, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE Mrs. JUSTICE K.S. MUDAGAL
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL APPEAL NO.1094 OF 2016
BETWEEN:
STATE OF KARNATAKA
BY CPI, KUSHALNAGAR CIRCLE,
KUSHALNAGAR POLICE STATION
KODAGU DISTRICT,
REPRESENTED BY SPP
HIGH COURT BUILDING,
BANGALORE - 571 234
...APPELLANT
(BY SRI K.NAGESHWARAPPA, HCGP)
AND:
1 . SRI. M JITHENDRA KUMAR
@ ANANDRAJ
S/O. M.MALLIKARJUNA,
AGED 50 YEARS,
SYSTEM ANALYST / PROGRAMMER,
FMKMC COLLGE,
MADIKERI - 571 234
2 . SMT. M. USHADEVI @ USHA
W/O. MALLIKERJUNA,
AGED 68 YEARS,
HOUSE WIFE,
3 . SRI. M. MALLIKARJUNA
S/O. LATE. MUDDAIAH,
AGED 83 YEARS,
RETD. HEALTH OFFICER
Crl.A.No.1094/2016
2
ALL ARE R/O HARANGI ROAD,
GOPAL CIRCLE,
BASAVESHWARA EXTENSION,
KUSHALNAGAR - 571 234
...RESPONDENTS
(BY SRI H.MOHAN KUMAR, ADVOCATE FOR R2 & R3;
VIDE ORDER DATED 08.12.2022,
APPEAL AGAINST R-1 IS ABATED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
21.01.2016 PASSED BY THE LEARNED PRL. S.J., KODAGU AT
MADIKERI IN S.C.NO.49/2009, THEREBY ACQUITTING THE
RESPONDENTS/ ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 323, 307, 417, 498A OF IPC AND SECTION 4
OF D.P.ACT, 1961.
THIS APPEAL COMING ON FOR HEARING THIS DAY, Anil B.
Katti J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/State is challenging judgment of acquittal passed by Principal Sessions Judge, Kodagu at Madikeri in SC No.49/2009, dated 21.01.2016.
2. Parties are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that marriage of accused No.1 with complainant Smt. H R Kavitha took place at Kannika International Maruthi Kalyana Mantapa, Crl.A.No.1094/2016 3 Kushalnagar. They led marital life for about one month and thereafter accused started giving physical and mental harassment demanding dowry in the form of site and cash of Rs.50,000/- for the purpose of purchasing bike. Accused threatened to cause the death of complainant and also tried to commit her murder by releasing the cooking gas from the cylinder. The earlier marriage of accused No.1 with one Sunitha was dissolved by consent divorce in MC No.229/2003 on the file of Family Court, Mysuru, vide order dated 11.04.2005. It was alleged that accused concealing the earlier marriage of accused No.1 with Sunitha performed marriage of accused No.1 with complainant. On such allegations complaint came to be filed leading to registration of case in Crime No.220/2008 of Kushalnagar police station.
4. The Investigating Officer on completion of investigation has filed charge sheet. On receipt of committal records, the Trial Court being prima facie satisfied framed charges against all the accused. They pleaded not guilty and claimed to be tried. Crl.A.No.1094/2016 4
5. The prosecution in order to prove the charges levelled against accused relied on the evidence of PWs.1 to 10 and documents as per Exs.P.1 to P.9. The statement of accused under Section 313 of Cr.P.C. came to be recorded and they denied all the incriminating evidence appearing against them. The accused did not lead any defence evidence. However, Exs.D.1 to D.3 came to be marked during the evidence of PW.1.
6. The Trial Court on hearing both sides and appreciating the evidence on record by impugned judgment and order acquitted all the accused from charges levelled against them.
7. The appellant/State is challenging correctness and legality of the said judgment of acquittal contending that Trial Court has committed serious error in holding that evidence of PWs.1 to 4 being interested witness cannot be relied as against the settled law that in such cases the family members are the natural and probable witnesses. The material evidence placed on record was sufficient to meet the legal requirement for conviction for the offences Crl.A.No.1094/2016 5 charged against all the accused. The reasons assigned by the Trial Court for disbelieving the evidence of PWs.1 to 4 cannot be legally sustained. The omissions, improvements and admissions of PW.1 during cross-examination of PW.1 referred in the judgment cannot take away the entire case of prosecution for extending benefit of doubt to the accused. The approach and appreciation of evidence by Trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to set aside the judgment of acquittal, consequently to convict the accused for offences charged against them.
8. The Trial Court records have been secured.
9. Heard the arguments of both sides.
10. On the basis of above narrated facts, the following points arise for consideration;
i) Whether the judgment of acquittal passed by Trial Court calls for any interference?
11. The prosecution alleged that after one month of marriage, the accused started infliction of physical and Crl.A.No.1094/2016 6 mental cruelty demanding dowry in the form of site and cash of Rs.50,000/- for purchase of bike. Secondly, the accused threatened to cause death of complainant Smt. H R Kavitha and tried to commit her murder by releasing cooking gas from the cylinder. Thirdly, the earlier marriage of accused No.1 with Sunitha which was ended in consent divorce in MC No.229/2003 on the file of Family Court, Mysuru, was concealed while performing marriage of accused No.1 with complainant. These allegations have to be examined in the light of contents of complaint, the evidence placed on record and the attending circumstances.
12. Learned HCGP has argued that marital differences and the instances of harassment takes place within four walls of the house, natural witnesses to prove those facts are only the family members and relatives and no independent witness can be expected looking for such incidents. Therefore, Trial Court was not justified in out- rightly rejecting the evidence of PWs.1 to 4 who supported the case of the prosecution. The omissions, improvements Crl.A.No.1094/2016 7 and admissions referred in the judgment of Trial Court are natural one and do not demolish the case of prosecution, as such same cannot be basis to exonerate all accused from charges levelled against them.
13. On the other hand, learned defence counsel argued that the evidence of PWs.1 to 4 in view of their admissions in the cross-examination with reference to the allegations made in the complaint cannot be relied. The instances of physical and mental harassment referred by complainant in the complaint and also during the course of their evidence is not corroborated by other evidence on record. There is delay in filing the complaint. The Trial Court has rightly appreciated the evidence on record and findings recorded are based on evidence on record which does not call for any interference by this Court.
14. The complainant Smt. H R Kavitha is a Graduate with M.A. degree. The marriage of complainant with accused No.1 took place on 22.06.2008 at Kannika International Maruthi Kalyana Mantapa, Kushalnagar. The accused had not demanded any dowry at the time of marriage talks or Crl.A.No.1094/2016 8 marriage. The complainant lived in marital home for nearly about six months and the complaint is filed on 28.12.2008. Accused No.1 at the time of marriage was working as System Analyst/Programmer in FMKMC College, Madikeri and the family of accused was financially sound and the family of complainant was financially not sound. These facts are not in dispute. Same is also borne out from the evidence on record.
15. The prosecution mainly relies on the evidence of PW.1 complainant, PWs.2 and 3 - brothers and PW.4, the mother of complainant to prove the allegation of physical and mental cruelty in connection with demand of dowry, so also the alleged attempt of accused to commit murder of complainant with reference to the incident claimed in the complaint. PWs.7 and 8 are the relatives of complainant. The other witnesses are panch witnesses and the Investigating Officer.
16. The Trial Court has acquitted the accused on following grounds:
Crl.A.No.1094/20169
i) PWs.5 and 9 witnesses to spot panchanama-
Ex.P.2 and PW.6 witness to seizure panchanama-Ex.P.3 have not supported the case of prosecution.
ii) There are material omissions, improvements, admissions and contradictions in the evidence of PWs.1 to 4.
iii) PWs.1 to 4 being relatives are interested witnesses and no independent witnesses have been examined.
iv) There was no demand of dowry prior and at the time of marriage.
v) PWs.3 and 4 have partly turned hostile.
These findings recorded by the Trial Court are based on appreciation of evidence of PWs.1 to 4, the complaint allegations as per Ex.P.1 and the documents relied by prosecution.
17. On perusal of the complaint allegations at Ex.P.1, it would go to show that complainant made following specific allegations with regard to accused having caused physical Crl.A.No.1094/2016 10 and mental cruelty in connection with their demand for dowry.
i) Accused were abusing, insulting and
threatening, thereby caused physical and
mental cruelty.
ii) Demanded site in Kushalnagar.
iii) Gas incident.
iv) While sending complainant for Ashada,
demanded site and cash of Rs.50,000/- for purchasing bike.
v) Accused have caught hold of her tuft, dragged and slapped on her cheek, as a result she fell unconscious.
vi) Insisted to give consent in writing on bond paper for another marriage of accused No.1.
vii) She was confined in the house.
viii) Accused No.1 under intoxication physically assaulted her.
18. The above specific instances alleged in complaint Ex.P.1 have to be examined with reference to evidence of Crl.A.No.1094/2016 11 family members PWs.1 to 4 and independent witnesses PWs.7 and 8. Undisputedly, the marriage of complainant and accused No.1 is an arranged marriage and their marriage was performed on 22.06.2008 and the present complaint is filed at Ex.P.1 on 28.12.2008. It means that complainant was subjected to above referred alleged physical and mental cruelty within a span of six months of the marriage.
19. It is in the evidence of PW.1 that she lived in the house of accused till 22.12.2008. On that day, all brothers of complainant took her to her parental house. The complainant alleges that on account of ill treatment and harassment her brothers have taken complainant to the parental house. However, the complainant has not chosen to file the complaint immediately. The complaint is filed only on 28.12.2008 after she left the matrimonial house. It is true that delay in all the cases particularly in matrimonial disputes may not be fatal to the case of prosecution. However, the Court has to examine the issue of delay, so as to decide whether it was motivated one Crl.A.No.1094/2016 12 and was an outcome of some deliberations and afterthought.
20. PW.1 has admitted in her cross-examination that on the quarrel taking place on 21.12.2008, accused No.2 gave an application to Dy.S.P., Kushalnagar and her brothers were called for enquiry. It is only thereafter PW.1 has filed the present complaint on 28.12.2008. The complainant has not offered any valid explanation as to why she did not chose to file complaint in between 21.12.2008 and 28.12.2008. Looking to the fact that complainant despite being a post graduate and all her brothers being educated, not choosing to file the complaint prior to the complaint of accused No.2 dated 21.12.2008, probabalising the defence that complaint at Ex.P.1 was outcome of deliberations between PW.1 and her family members. In this background, if the citations referred by the Trial Court in para 70 of its judgment are looked into and the principles enunciated in those decisions are applied to the facts of this case, then it will have to be held that explanation for the delay in filing the complaint at Ex.P.1 was required and Crl.A.No.1094/2016 13 that was not satisfactorily explained. Therefore, exaggerated account or concocted story as a result of deliberation and consultation cannot be ruled out.
21. The direct evidence on the point of physical and mental harassment on demand of dowry is only through the evidence of PW.1. The evidence of PWs.2 to 4 who are brothers and mother of complainant is only hearsay evidence and their evidence will have to be tested in the light of evidence of PW.1 and the complaint allegations at Ex.P.1.
22. PW.1 has deposed to the effect that after one week of marriage all accused started insisting to get gold, site, house and bike, otherwise they will kill her. Accused were abusing and assaulting her saying that nothing is given as dowry in the marriage though accused No.1 is in Government service and they never used to talk with family members of complainant during their visits to the house of accused, they were not allowing PW.1 to talk to them. After two to three months of marriage one day in the evening accused No.2 asked P.W.1 to prepare coffee, Crl.A.No.1094/2016 14 when she entered the kitchen, she got the smell of cooking gas, when she asked accused No.2 about it, she told that accused No.1 while getting the water boiled must have forgotten to close the knob. PW.1 alleges that it was done with an intention to kill her. PW.1 further deposed that accused were insisting to give her consent in writing on stamp paper for another marriage of accused No.1. During October-2008, when she had gone to parental house of accused No.2, she came to know that accused No.1 was already married and has a daughter out of said marriage. PW.1 deposed that concealing that fact, marriage of accused No.1 was performed with her. All the accused used to confine PW.1 in the house and did not allow her to go out of the gate and thereby she was subjected to physical and mental cruelty.
23. On careful perusal of above evidence of PW.1 and allegations in Ex.P.1, the complaint, shows that firstly complainant did not depose regarding demand of Rs.50,000/- cash to purchase a bike. Secondly, she did not speak about bus incident wherein accused No.1 did not Crl.A.No.1094/2016 15 allow PW.1 to sit by his side and the said evidence is against the evidence of her own family members. Thirdly, PW.1 has not deposed that the accused have caught hold her tuft and dragged, so also slapped on her cheek and abused in filthy language, further she was forced to give her consent in writing on bond paper. Fourthly, PW.1 has also not deposed about accused No.1 coming home intoxicated and harassing her. These omissions appearing in the evidence of PW.1 would cast sufficient cloud of doubt regarding the alleged ill treatment and harassment as claimed by PW.1.
24. The conduct of PW.1 and her family members in the given set of facts and circumstances as referred above are taken into consideration then it would go to show that in spite of such ill treatment and harassment, no ordinary prudent person would keep quiet without taking any action. In normal course, whenever there are matrimonial differences amongst the spouse, the family members of both sides will approach the elders for resolution of their differences, so as to lead marital life. PW.1 has admitted Crl.A.No.1094/2016 16 in her cross-examination that "Inspite of all these, no panchayat was held in presence of mediator Suresh Kumar or any other person".
25. Indisputably, the marriage of complainant and accused No.1 was performed after knowing the background of both families. Accused No.1 is working as System Analyst / Programmer in FMKMC College, Madikeri and he used to go to work at 8.30 a.m. and return by 6.30 p.m. PW.1 in her entire evidence does not specify how accused No.1 used to join hands with other accused in the alleged ill treatment and harassment to her. It has been elicited in the cross-examination of PW.1 that accused No.1 used to shuttle between Kushalnagar and his work place. The house of accused and her parents are at a distance of 2 kms. PW.3 has admitted that they have to cross the house of accused to reach their house and the same is also admitted by PW.4 and PW.7. It is also elicited in the cross-examination of PWs.1 to 4 that complainant used to visit her parental house every month and on such visit she used to stay five to six days. If the said evidence Crl.A.No.1094/2016 17 brought on record is appreciated in the light of complaint allegations as per Ex.P.1 then there is no substance in the allegation of PW.1 that she used to be confined in the house and accused were not allowing to talk to her family members, so also used to lock the gate.
26. PW.1 has spoken about accused catching hold of her tuft and dragging her, slapping on cheek due to which she fell unconscious and accused No.1 physically assaulting under intoxication. According to PW.1, they were not one day incidents, but were repetitive. However, for the reasons best known to her, she never chose to approach the elders for conciliation. Similarly, though the gas leakage incident was serious in nature so as to endanger her life, she did not chose to file complaint. According to PW.1, such ill treatment and harassment were driven by their greed for dowry. Indisputably, there was no demand of dowry by accused prior and at the time of marriage. However, PWs.1 to 4 claim that accused were insisting to get a site in the prime commercial locality of Kushalnagar and in the said site accused No.1 wished to open a Crl.A.No.1094/2016 18 computer centre availing loan on the site. This allegation has not been spoken by any witnesses except PW.3. The complaint allegation as per Ex.P.1 is also silent to that effect. There is also no any concrete evidence through PWs.1 to 4 that any efforts were made by them for getting site on such demand of accused. Accused No.1 is government servant working in college at Madikeri and cannot undertake any other avocation during service. Therefore, allegation of demanding site for opening computer centre by availing loan on such site cannot be sustained in view of the facts referred to above. The evidence of PWs.1 to 4 would go to show that they have given totally different version on the allegation of demand of dowry and consequent harassment both physically and mentally. Their inconsistent evidence and improvements coupled with the admissions in their cross-examination make their evidence unreliable. Therefore, in our opinion the evidence of PWs.1 to 4 is inadequate to meet the legal conviction for the offences under Section 498A of IPC and Section 4 of D.P. Act.
Crl.A.No.1094/201619
27. PW.1 alleges that about two to three months after marriage, accused No.2 asked to prepare coffee and when she opened the door of kitchen, she noticed the smell of the gas. When she enquired accused No.2, she told that accused No.1 went to boil the water and might have forgotten to close the knob. PW.1 further claims that she saw gas stove was on and it was not burning, as such she felt that same was done with an intention to kill her. It has been elicited in the cross-examination of PW.1 at para 28 that "myself and accused used to heat the water with the help of firewood for taking bath. It may be during August 2008, but I do not know the date. In that kitchen, there are windows and ventilators. There is kitchen, then dining hall and after that there is Hall, there are two bed rooms and doors on main entrance and back". If the said description of the house are taken into consideration then it is difficult to believe the version of PW.1 as referred above. It is also pertinent to note that accused No.2- mother used to be always in the house and accused No.3- father because of his advanced age must also have been confined to house. If there was really any fire mischief Crl.A.No.1094/2016 20 that could have also taken the lives of accused Nos.2 and
3. Inspite of such a serious incident even according to PW.1, she did not thought it fit to complain before the Police or immediately inform the same to her family members who are admittedly residing in Kushalnagar itself within a distance of about 2 kms. Further, it has been brought on record that PWs.1 to 4 have to pass the house of accused to reach their house. If really there was such serious incident, then the natural human conduct apprehending the attempt of murder would be to inform the same to her family members and to file complaint. The said allegations are made only after accused No.2 filed complaint against brothers of PW.1 and that too after six days of she leaving the matrimonial home. Under such circumstances, concoction of facts, due deliberation and afterthought cannot be ruled out in making such allegations.
28. The last allegation of PW.1 is that accused had concealed the first marriage of accused No.1 with one Sunitha and having a daughter out of such marriage. Crl.A.No.1094/2016 21 PW.1 claims that she came to know about that when she had been to the parental house of accused No.2 for performing pithrupaksha. On perusal of Ex.P.7, it would go to show that accused No.1 had filed divorce petition against Sunitha under Section 13(B) of Hindu Marriage Act, in MC No.229/2003 on the file of Family Court, Mysuru. The decree of divorce has been granted on 16.04.2005 as per the decree drawn in the said case. These documents are handed over to the Investigating Officer by complainant. The said documents would go to show that the same were applied on 18.04.2005 and delivered on 19.05.2005. The date of marriage of accused No.1 and complainant is on 22.06.2008. It means that PW.1 and her family members were aware about the first marriage of accused No.1 with Sunitha and decree of divorce by mutual consent. It is not the case of PW.1 that after she came to know about first marriage of accused No.1, she made enquiries about MC No.229/2003 on the file of Family Court, Mysuru, then applied for certified copies, thereafter handed over them to the Investigating Officer. It is also not the case of PW.1 that Crl.A.No.1094/2016 22 she got documents of Ex.P.7 through any family members of Sunitha who had taken certified copy of the same and handed over to PW.1.
29. The evidence of PWs.2 to 4 would go to show that one Suresh is a friend of CW.3 Nagesh who is elder brother of PW.2 and through him there was marriage proposal. PWs.7 and 8 are also the residents of Kushalnagar and known both complainant and accused family. However, no worth material has been brought on record either through the evidence of PWs.7 and 8 or by examining CW.3 who brought marriage proposal of complainant and accused. It is not the case of PWs.1 to 4 that they did not make any enquiry with regard to the family background of accused prior to the marriage and they had no any occasion to come to know about the first marriage of accused with Sunitha. Therefore, the allegation of concealment of first marriage of accused No.1 before performing his marriage with PW.1 has not been proved by the prosecution beyond all reasonable doubt.
Crl.A.No.1094/201623
30. Above referred evidence of PWs.1 to 4 is not sufficient and acceptable to conclusively hold that accused were guilty of charges levelled against them. The material omissions, improvements, admissions in cross-examination of PWs.1 to 4 coupled with attending circumstances brought on record would make their evidence unreliable. The Trial Court, on sound appreciation of the evidence placed before it, has arrived at a just and proper conclusion in holding that the prosecution has failed to bring home the guilt of accused beyond all reasonable doubt. The said finding does not call for interference of this Court. Consequently, point No.1 for consideration is answered in negative. Therefore, appeal deserves no merit.
31. Hence, the following;
Order The appeal filed by the appellant/State is hereby dismissed.
Crl.A.No.1094/201624
The judgment of acquittal passed by Principal Sessions Judge, Kodagu at Madikeri, in SC No.49/2009 is hereby confirmed.
The Registry is directed to transmit copy of this judgment along with Trial Court Records to the Trial Court.
SD/-
JUDGE SD/-
JUDGE mv