Bangalore District Court
And Two Other Accused Persons And The ... vs No.1 And Consequently on 31 January, 2018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH-46)
DATED THIS THE 31st DAY OF JANUARY, 2018
PRESENT
Sri. T.N. INAVALLY, B.A.L., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
CRL.A.No.782/2017
C/w
Crl.A.No.1210/2017
In CRL.A.No.782/2012
BETWEEN
Sri. V. Arun, S/o T.S. Vijayakumar,
Aged about 34 years,
R/at No.261, Behind Rebok Showroom,
BSK III Stage, 5th Phase, 5th Block,
Katriguppe, Bengaluru. .. APPELLANT
(By Smt. Jayashree B.S., Advocate)
AND
The State of Karnataka
By C.K. Acchukattu Police Station,
Bengaluru. .. RESPONDENT
(By the learned Prosecutor)
In Crl.A.No.412/2015
The State of Karnataka
By C.K. Achukattu Police Station,
Bengaluru. .. APPELLANT
(By the learned Prosecutor)
AND
1. V. Arun S/o T.S. Vijay Kumar,
Aged about 34 years,
2 Crl.A.No.782/2017
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Crl.A.No.1210/2017
2. T. S. Vijay Kumar, S/o late Srinivas,
Aged about 63 years,
3. Vijayalakshmi, W/o T.S. Vijaya Kumar,
Aged about 61 years,
All are R/at Door No.138, 4th Cross,
Katriguppe, 5th Block,
Banashankari 3rd Stage, Bengaluru. .. RESPONDENT
(By Smt. Jayashree B.S., Advocate)
*****
COMMON JUDGMENT
The appeal in Crl.A.No.782/2017 is filed by the appellant under
Section 374 of Cr.P.C. praying for an order to call for the records in
C.C.No.24115/2012 on the file of II Additional Chief Metropolitan
Magistrate, Bengaluru city ('the learned Magistrate' for short) and
thereby to set aside the judgment dated 06.05.2017 regarding the
order of conviction and sentence passed against him for the offence
punishable under Section 498-A of IPC and thereby to acquit him of
the said offence by allowing this appeal in the interest of justice.
2. The case in C.C.No.24115/2012 was registered against the
appellant and two other accused persons and the learned Magistrate,
as per the said judgment convicted the appellant for the offence
punishable under Section 498-A of IPC, he being the accused No.1 and
acquitted the accused No.2 and 3. Hence, the learned Prosecutor has
3 Crl.A.No.782/2017
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Crl.A.No.1210/2017
filed the appeal in Crl.A.No.1210/2017 under Section 378(1)(a) and
Sec.377(1)(a) of Cr.P.C. (initially the appeal was filed only under
Section 378(1)(a) of Cr.P.C., but, subsequently by filing memo the
learned Prosecutor has sought for treating the appeal under Section
377(1)(a) of Cr.P.C. also) praying for an order to modify the judgment
dated 06.05.2017 regarding conviction and sentence praying for to
enhance the sentence of accused No.1 and to set aside the judgment
of acquittal of the accused No.2 and 3 and convict them for the
offence charged by modifying the said judgment in the interest of
justice.
3. The respondent in the appeal in Crl.A.No.782/2017 and the
appellant in the appeal in Crl.A.No.1210/2017 is complainant Police.
The appellant in the appeal in Crl.A.No.782/2017 is accused No.1 and
the respondents in the appeal in Crl.A.No.1210/2017 are accused No.1
to 3 in the criminal case before the trial Court. Hence, the parties to
both the appeals are herein after referred to in their ranks before the
trial Court for the purpose of convenience.
4. Both these appeals have arisen from the same judgment of
the learned Magistrate and hence, both the appeals are clubbed
together for consideration and for disposal of the same with common
judgment.
4 Crl.A.No.782/2017
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Crl.A.No.1210/2017
5. The prosecution was set into motion against the accused
persons on the information of C.W.1 Smt. N.J. Archana, the wife of
accused No.1 and consequently, the complainant police registered the
case against the accused persons as per their crime No. 183/2012 and
took up investigation of the case. After completion of the investigation,
the complainant police filed charge sheet against the accused No.1 to
3 for the offence punishable under Section 498-A of IPC. It is not in
dispute that the accused No.2 and 3 are parents-in-law of informant/
victim. The case alleged against the accused persons is that the
informant/ victim married accused No.1 on 27.05.2011 as per Hindu
rites and customs. All the marriage expenses were borne by the father
of victim. After the marriage, the victim started to reside with the
accused No.1 to 3 in the matrimonial house at Banashankari within the
jurisdiction of complainant police station. During the said period, the
accused No.1 along with accused No.2 and 3 intentionally ill-treated
the victim due to her speaking problem, as victim was stammering.
The accused persons used to quarrel with the victim regularly for silly
reasons. The accused persons used to leave the victim in the house
alone and the accused No.1 was not taking the victim anywhere
outside the house. The accused persons also restricted the victim from
watching television and they regularly used to abuse the victim stating
that the accused No.1 married her by force. The accused No.1 also
5 Crl.A.No.782/2017
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Crl.A.No.1210/2017
used to tell the victim that she would give divorce to him and he would
pay her Rs.10,00,000/-. Further, at the instigation of accused No.2 and
3, the accused No.1 was tried to strangulate the victim by pressing
neck and hence, thereafter the complainant went to her parents'
house. The accused persons never allowed the victim to enter into the
matrimonial house. Hence, the victim was constrained to give
complaint to the police. Accordingly, the case was registered against
the accused persons as per the Cr.No.183/2012 for the offence
punishable under Section 498-A of IPC.
6. After completion of investigation, the complainant police filed
charge sheet against the accused persons for the said offence before
the learned Magistrate. Hence, the case was registered against the
accused persons in C.C.No.24115/2012 by the learned Magistrate. In
pursuance of service of summons, all the accused No.1 to 3 appeared
through counsel. The accused were on bail. After hearing both the
parties and on considering the relevant materials on record, the
learned Magistrate framed charge against the accused persons for the
offence punishable under Section 498-A of IPOC to which the accused
persons pleaded not guilty and thereby they claimed to be tried of the
said offence.
6 Crl.A.No.782/2017
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Crl.A.No.1210/2017
7. In support of the case of prosecution, 10 witnesses were
examined as P.Ws.1 to 10. The prosecution produced documents at
Exs.P.1 to P.10 on its behalf. After closing of the evidence of
prosecution the learned Magistrate recorded the statement of the
accused persons under Section 313 of Cr.P.C., in which the accused
persons denied the incriminating materials forthcoming against them in
the evidence of prosecution evidence as false, but they did not choose
to adduce any defence evidence.
8. After hearing the argument of both the parties and on
considering the relevant materials on record, the learned Magistrate as
per the judgment dated 06.05.2017 has convicted the accused No.1
for the offence punishable under Section 498-A of IPC and sentenced
him to undergo simple imprisonment for one year and also to pay fine
of Rs.10,000/-, in default to undergo further simple imprisonment for 4
months. The accused No. 1 is also directed to pay compensation of
Rs.25,000/- to the victim. However, the learned Magistrate has
acquitted the accused No.2 and 3.
9. Being aggrieved by the said judgment regarding order of
conviction and sentence passed against accused No.1, he has come up
with the appeal in Crl.A.No.782/2017 on the following among other
grounds that the impugned judgment regarding order of conviction
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Crl.A.No.1210/2017
and sentence passed against the accused No.1 is illegal, erroneous and
against to the principle of natural justice. The learned Magistrate has
failed to appreciate the lacunas forthcoming in the prosecution case.
Without appreciating such lacunas, the learned Magistrate has come to
the wrong conclusion holding that the prosecution has proved guilt of
the accused No.1 for the offence punishable under Section 498-A and
sentenced him to undergo simple imprisonment for one year and to
pay fine of Rs.10,000/-, in default to undergo further imprisonment for
4 months. The impugned judgment regarding order for payment of
compensation of Rs.25,000/- to the victim is also illegal and against
the principles of natural justice. The learned Magistrate has failed to
consider that the ingredients of Sec.498-A of IPC are not at all
attracted, as there is no specific allegation by the victim that there was
any danger to her life, limb or health. Without considering such valid
point the learned Magistrate has wrongly come to the conclusion that
the prosecution proved guilt of accused No.1 and therefore, the
impugned judgment is liable to be set aside. The allegations made by
the victim against the accused No.1 are all false. The learned
Magistrate has failed to consider that both the complaints filed in two
police stations are typed copies, which are prepared after heavy
thought and hence, they are manipulated without any tenable reason.
The complainant police did not seize any CD produced at Ex.P.9 at the
8 Crl.A.No.782/2017
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Crl.A.No.1210/2017
time of investigation. But during the evidence without any application
for permission to produce such CD at Ex.P.9, the learned Magistrate
has marked the said CD, which is not tenable. There is no
corroborative evidence to prove the said CD. There are discrepancies
in the evidence of prosecution witnesses regarding CD at Ex.P.9.
Therefore, the learned Magistrate has committed error in considering
CD at Ex.P.9 in the impugned judgment. There are glaring differences
in the evidence of all the witnesses and there are total improvements
made in the chief-examination of those witnesses. The victim has
given two different versions regarding spot mahazar. The learned
Magistrate has failed to appreciate the evidence of victim in cross-
examination regarding CD. The learned Magistrate has not noticed the
fact that the victim stayed in the house of accused No.1 just for the
period of 1½ months and after such short span of time she
continuously lodged two complaints in two different police stations.
The learned Magistrate showed undue sympathy regarding the victim
in the impugned judgment. The learned Magistrate has failed to
appreciate that the complainant police unscrupulously fixed the
accused No.1 in a false case on the basis of false complaint without
any justification. There is delay in filing the complaint at Ex.P.1. But
the learned Magistrate has failed to consider the said point. Hence on
such ground itself, the impugned judgment is liable to be set aside.
9 Crl.A.No.782/2017
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Crl.A.No.1210/2017
The learned Magistrate has failed to consider that the victim resided
with the accused No.1 only for 1½ months and without any attempt to
get reunited, she filed petition for divorce in MC No.961/2013. But the
learned Magistrate showed undue sympathy on the complainant and
relied on those documents and held the accused No.1 is guilty of the
offence charged. It is pertinent to note that the victim did not willing
to live with her in-laws and she wanted to set up separate house and
isolate accused No.1 from his parents. The victim used to assault the
accused No.1 holding his collar and used to abuse him with filthy
language and it was the accused No.1 used to console himself as
everything would be set right in future. When such being the case, the
learned Magistrate came to the conclusion in favour of the
complainant. Therefore, on this ground itself, the impugned judgment
is liable to be set aside. The learned Magistrate has failed to consider
that the materials placed before the Court are not cogent and
acceptable and they are not convincing. The P.W.4, one of the
witnesses of prosecution has clearly admitted in his cross-examination
the story created by the victim and her father against the accused. But
such evidence is not considered by the learned Magistrate. The
investigating officer in his evidence did not give any authentication
regarding CD at Ex.P.9 and hence, the learned Magistrate has
committed error in relying on such CD in the impugned judgment.
10 Crl.A.No.782/2017
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Crl.A.No.1210/2017
Viewed from any angle, the impugned judgment regarding order of
conviction and sentence passed against accused No.1 is liable to be set
aside. The sentence passed against accused No.1 by the learned
Magistrate is not sustainable under law and also on the facts of the
case. The order of conviction was by the learned Magistrate is based
on inferences and presumptions. Therefore, the accused No.1 has
prayed for allowing his appeal and thereby to set aside the impugned
judgment regarding order of conviction and sentence passed against
him in the interest of justice.
10. The learned Prosecutor has filed appeal in
Crl.A.No.1210/2017 on the following amongst other grounds that the
impugned judgment to the extent of acquitting accused No.2 and 3 is
not tenable. The learned Magistrate has committed error in acquitting
accused No.2 and 3 of the offence charged even though there are
sufficient materials against the accused No.2 and 3 for the offence
punishable under Section 498-A of IPC. The witnesses examined on
behalf prosecution have clearly deposed the facts against accused
No.2 and 3 also to show that they subjected the victim to mental and
physical cruelty and harassment. The contents of CD are reduced into
writing and same is marked as exhibit. The accused have not denied
the contents of said CD at Ex.P.9. There is sufficient materials against
accused No.2 and 3 also for the offence charged in the CD at Ex.P.9.
11 Crl.A.No.782/2017
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Crl.A.No.1210/2017
Further, if the evidence forthcoming on record is taken into
consideration, the accused No.1 is liable for enhanced sentence for the
offence convicted. Therefore, the impugned judgment is liable to be
set aside to the extent of acquitting the accused No.2 and 3 and for
enhanced quantum of sentence passed against accused No.1.
Therefore, the learned prosecution has prayed for allowing the appeal
filed by him accordingly in the interest of justice.
11. As stated herein above, both the appeals have arisen from
the same judgment of the learned prosecution and therefore, both
these appeals are clubbed together for consideration and also for
disposal of the same with common judgment.
12. Heard the argument of the counsel for accused persons and
also the learned Prosecutor on both the appeals. The counsel for the
accused and also the learned Prosecutor have filed written argument
on their behalf. Perused the oral and documentary evidence on record.
Now the points that arise for my consideration are:
1. Whether the accused No.1 show that the learned
Magistrate has committed error in appreciating the
oral and documentary evidence forthcoming on
record in proper prospective under impugned
judgment?
2. Whether the accused No.1 show that the learned
Magistrate has committed error in convicting him for
the offence punishable under Section 498-A of IPC
and sentencing him under impugned judgment for
the said offence?
12 Crl.A.No.782/2017
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Crl.A.No.1210/2017
3. Whether the learned Prosecutor has made out any
ground to show that the learned Magistrate has
committed error in acquitting accused No.2 and 3 for
the offence punishable under Section 498-A of IPC
under the impugned judgment?
4. Whether the learned Prosecutor has made out any
ground to sow that the order of sentence passed
against accused No.1 by the learned Magistrate
under the impugned order is insufficient and it is
liable to be enhanced as sought for in the appeal
filed by him?
5. Whether the accused No.1 has made out any ground
to interfere with the impugned judgment of the
learned Magistrate regarding his conviction at the
hands of this Court in his appeal as sought for?
6. Whether the learned Prosecutor has made out any
ground for convicting the accused No.2 and 3 for the
offence charged and for enhancement of sentence
passed against accused No.1 as sought for in the
appeal filed by him?
7. What order?
13. After hearing the argument of both the parties and on
considering oral and documentary evidence and also necessary
materials available on record, my findings on the above points are as
hereunder:
Point No.1: In the affirmative;
Point No.2: In the affirmative;
Point No.3: In the negative;
Point No.4: In the negative;
Point No.5: In the affirmative;
Point No.6: In the negative;
Point No.7: As per final order
13 Crl.A.No.782/2017
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Crl.A.No.1210/2017
For the following:
REASONS
14. Points No.1 to 4: All these points are taken up for
consideration together for avoiding repetition of discussion on the facts
of the case and also regarding point of law.
15. As discussed herein above, the fact that the accused No.1 is
husband and the accused No.2 and 3 are parents-in-law of the victim
is not in dispute. The date and place of marriage of victim with
accused No.1 is also not in dispute. Further, the fact that after the
marriage the victim started to reside with the accused No.1 to 3 in the
matrimonial house stands undisputed. The prosecution was set into
motion against the accused persons on the complaint of victim for the
offence punishable under Section 498-A of IPC.
16. The victim is C.W.1 and she has examined as P.W.1 before
the learned Magistrate in the criminal case. In the evidence in chief-
examination, the victim has reiterated the facts averred in the
complaint, which is marked at Ex.P.1. At this stage, as submitted by
the counsel for accused persons, it is pertinent to refer to the relevant
portions in the complaint which according to the prosecution is made
out case of harassment and cruelty allegedly meted out by the accused
No.1 to the victim.
14 Crl.A.No.782/2017
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Crl.A.No.1210/2017
17. The relevant portion in the complaint at Ex.P.1 reads thus:
"ªÀÄzÀĪÉAiÀiÁzÀ ¢£ÀªÉà £À£Àß UÀAqÀ CgÀÄuï «. EªÀgÄÀ £Á«§âgÆ À ªÀiÁvÀ£ÁqÀĪÀ ¸ÀªÄÀ AiÀÄzÀ°è
£À£ÀߣÀÄß CªÀgÀ vÀAzÉ vÁ¬ÄAiÀÄ §®ªÀAvÀPÌÉ ªÀÄzÀÄªÉ DVzÉÝÃ£É JAzÀÄ ºÉýzÀgÄÀ . F ªÀiÁvÀ£ÄÀ ß
PÉý £À£ÀUÉ DWÁvÀªÁ¬ÄvÀÄ. DzÀgÀÆ PÀÆqÀ ¸À»¹PÉÆAqÉ. £Á£ÀÄ £À£ßÀ UÀAqÀ£À ªÀÄ£ÉAiÀÄ°è
EgÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß UÀAqÀ ªÀÄzÀĪÉAiÀÄ £ÀAvÀgÀ £À£ßÀ Äß ºÉÆgÀUÀqÉ J°èUÆ À PÀgÉzÄÀ PÉÆAqÀÄ
ºÉÆÃUÀ°®è. £Á£ÀÄ ªÀÄzÀĪÉAiÀÄ £ÀAvÀgÀ £À£ßÀ UÀAqÀ£À eÉÆvÉ MAzÉgÀqÄÀ ¢£À ¥ÀæªÁ¸À ªÀÄvÀÄÛ
zÉêÀ¸ÁÝ£ÀUÀ¼ÀÄß £ÉÆÃr §gÀĪÀ D¸É ElÄÖPÉÆArzÉÝ. DzÀgÉ D D¸É ¤gÁ¸ÉAiÀÄ°è
CAwªÀÄUÉÆArvÀÄ. £À£Àß UÀAqÀ ¥Àæw ¢£À PÉ®¸À¢AzÀ gÁwæ 10.30 UÀAmÉUÉ ªÀÄ£ÉUÉ §AzÀÄ £À£ßÀ
eÉÆvÉ C£ÉÆåãÀåªÁV ªÀiÁvÀ£ÁqÀÄwÛgÀ°®è. ªÀÄ£ÉUÉ §AzÀÄ £À£Àß ªÉÄÃ¯É PÉÆUÁqÀĪÀÅzÄÀ , ¹lÄÖ
ªÀiÁrPÉƼÀÄîªÀÅzÀÄ, ¸ÀtÚ¥ÀÅlÖ «ZÁgÀUÀ½UÉ ¨ÉÊAiÀÄÄåªÀÅzÄÀ ªÀiÁqÀÄwÛzÝÀgÄÀ ."
It is also averred in the complaint at Ex.P.1 that:
"dÆ£ï 18 gÀAzÀÄ £À£Àß UÀAqÀ vÀ£Àß ¸ÀßûvÀgÀ eÉÆvÉ ±ÀÈAUÉÃjUÉ ºÉÆÃzÀgÄÀ .............. £Á£ÀÄ
ªÀÄ£ÉAiÀÄ°è n.«. £ÉÆÃqÀĪÀÅzÀ£ÀÆß PÀÆqÀ £À£ßÀ CvÉÛ ªÀÄvÀÄÛ UÀAqÀ ¸À»¸ÀÄwÛgÀ°®è. DrUÉ
¸ÀjAiÀiÁV ªÀiÁqÀĪÀÅ¢®è JAzÀÄ »ÃAiÀiÁ½¹ ªÀiÁvÀ£ÁqÀÄwÛzÝÀgÄÀ . MAzÀÄ ¸À® £À£ßÀ UÀAqÀ
¹nÖ¤AzÀ £À£Àß PÉ£ÉßAiÀÄ ªÉÄÃ¯É ¨Áj¹zÀÆÝ PÀÆqÀ GAlÄ. £À£ßÀ CvÉÛ £À£ßÀ ªÀÄUÀ¤UÉ qÉʪÉÅÆøïð
PÉÆlÄÖ ºÉÆÃUÀÄ JAzÀÄ ¨ÉÊAiÀÄÄwÛzÀÝgÀÄ× £À£ßÀ UÀAqÀ £Á£ÀÄ K£É¯Áè MqÀªÉ ªÀ¸ÛÀçUÀ¼À£ÄÀ ß vÀA¢zÉÝ
CzÀ£É߯Áè ¥ÀnÖ ªÀiÁqÀÄ. CªÀÅUÀ¼À ¸ÀªÄÉ ÃvÀ 10 ®PÀë gÀÆ¥Á¬Ä ªÀÄzÀÄªÉ RZÀð£ÀÄß PÉÆqÀÄvÉÛãÉ
vÉUÉzÀÄPÉÆAqÀÄ ºÉÆgÀlÄ ºÉÆÃUÀÄ JAzÀÄ ºÉüÀÄwÛzÀÝgÄÀ ."
Further, as per the complaint averments, on 04.07.2011 the accused
No.1 quarreled with the victim and strangulated her neck.
18. The relevant portion regarding the said incident as per the
complaint averments reads thus:
"¢B 04-07-2011 gÀAzÀÄ £À£Àß UÀAqÀ ¸ÀtÚ «ZÁgÀPÌÉ PÉÆÃ¥ÀUÆ
É AqÀÄ £À£ßÀ PÀvÀÛ£ÄÀ ß »rzÀÄ
»¸ÀÄQzÀgÀÄ. £À£ÀUÉ G¹gÁl vÉÆAzÀgÉ DV ¥ÀæYÉÕ vÀ¦àzÀAvÁ¬ÄvÀÄ. £ÀAvÀgÀ ¸ÀºÁAiÀÄPÁÌV
PÀÆVPÉÆAqÉ£ÀÄ. £À£Àß CvÉÛ §AzÀÄ ¨ÁV®Ä vÀnÖ «µÀAiÀÄ w½zÀÄ £Á£ÀÄ ªÀģɬÄAzÀ DZÉ
ºÉÆÃUÀzÀAvÉ ªÀÄ£ÉUÀ ©ÃUÀ ºÁQ PÀÆr ºÁQzÀÝgÄÀ ."
It is also averred in the complaint that after the alleged incident on
04.07.2011 the victim was made to sleep alone in the room and
thereafter on 13.07.2011 she went to her parents house for Aashada
15 Crl.A.No.782/2017
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Crl.A.No.1210/2017
month. The complaint averments regarding the incident after the
victim went to her parents house reads thus:
"£Á£ÀÄ £À£Àß vÀAzÉAiÀÄ ªÀÄ£ÉUÉ §AzÀ PÉ®ªÀÅ ¢£ÀUÀ¼À £ÀAvÀgÀ UÀAqÀ£À ªÀÄ£ÉUÉ ºÉÆÃUÀĪÀ J¯Áè
¥ÀæAiÀÄvÀß ªÀiÁrzÉÝãÉ. £À£ßÀ UÀAqÀ ¥sÉÆä£À°è PÉ®¸ÀPÌÉ ¸ÉÃjPÉÆà E®è¢zÀÝgÉ £À£ÀUÉ qÉʪÀÅÁøïð
PÉÆqÀÄ JAzÀÄ ºÉüÀÄwÛzÝÀgÄÀ . PÀȵÀÚd£ÁäµÀÖ«Ä ªÀÄvÀÄÛ UÀuÉñÀ ZÀvÄÀ yðAiÀÄ ºÀ§âzÀAzÀÄ UÀAqÀ£À
ªÀÄ£ÉUÉ ºÉÆÃUÀĪÀ ¥ÀæAiÀÄvÀß ªÀiÁrzÁUÀ £À£ßÀ UÀAqÀ ªÀÄvÀÄÛ CvÉÛ £À£ßÀ £ÀÄß §gÀ®Ä ©qÀ°®è. £À£ßÀ
vÀAzÉ vÁ¬Ä CªÀgÀ ªÀÄ£ÉUÉ ºÉÆÃV ¢Ã¥ÁªÀ½UÉ CgÀÄuï ªÀÄvÀÄÛ CªÀgÀ vÀAzÉ vÁ¬ÄAiÀÄ£ÀÄß
PÀgÉzÀÄPÉÆAqÀÄ §AzÀgÄÀ . DzÀgÆ À £À£ßÀ UÀAqÀ CgÀÄuï ¢Ã¥ÀÁªÀ½ ºÀ§âPÌÉ £ÀªÄÀ ä ªÀÄ£ÉUÉ §gÀ°®è.
¢B 01-01-2012 gÀAzÀÄ £À£ßÀ UÀAqÀ¤UÉ ºÉƸÀ ªÀµÀðzÀ ±ÀĨsÁµÀAiÀÄUÀ¼À£ÄÀ ß ºÉüÀ®Ä ¥ÀæAiÀÄwß¹zÁUÀ
£À£Àß UÀAqÀ ¥sÉÆãÀ£ÀÄß vÉUÉzÄÀ PÉƼÀî°®è. £Á£ÀÄ PÉ®¸ÀPÌÉ ¸ÉÃjPÉÆArzÉÝãÉAzÀÄ «µÀAiÀÄ w½¹zÀgÆ
À
PÀÆqÀ CªÀgÀÄ CzÀPÉÌ ªÀiÁ£ÀåvÉ PÉÆqÀ°®è."
It is further averred that:
"PÉ®¸À ¹QÌzÉ ªÀÄ£ÉUÉ §gÀÄvÉÛãÉAzÀÄ ºÉýzÁUÀ CzÀPÌÉ ªÁ¬ÄzÉ PÉýzÀgÄÀ . £À£ßÀ UÀAqÀ£À
ºÀÄlĺÀ§âzÀ ±ÀĨsÁµÀAiÀÄ w½¸À®Ä ¥sÉÆÃ£ï ªÀiÁrzÀgÆ À ¸ÀºÀ CªÀgÄÀ ¥sÆÉ Ã£ï vÉUÉzÄÀ PÉƼÀî°®è.
£À£Àß UÀAqÀ FUÀ J°èzÁÝgÉ JAzÀÄ PÉýzÀgÉ AiÀiÁgÀÆ ºÉüÀĪÀÅ¢®è. £À£ßÀ £ÀÄß UÀAqÀ£À ªÀÄ£ÉUÉ
¸ÉÃj¸ÀĪÀ ¥ÀæAiÀÄvÀßzÀ°è ¥ÀAZÁ¬Äw ªÀiÁrzÁU, £À£ßÀ ªÀiÁªÀ £ÀªÄÀ ä ªÀÄ£ÉAiÀÄ°è ¤ªÀÄä ªÀÄUÀ¼ÄÀ
CZÀð£ÁUÉ K£ÁzÀgÀÆ DzÀgÉ CzÀPÌÉ £ÁªÉà dªÁ§ÁÝgÀgÄÀ JAzÀÄ §gÉzÄÀ PÉÆr JAzÀÄ ¤§AzÀs£É
MrØgÀÄvÁÛgÉ. £À£Àß ªÉÄÃ¯É ¸ÀļÀÄî C¥ÀªÁzÀ ºÉÆj¹gÀÄvÁÛgÉ."
These averments made in the complaint according to the victim are
the physical and mental harassment to her by the accused persons.
19. At the very outset, it is pertinent to note that there is
absolutely no averment against the accused No.2, who is father-in-law
of the victim, in respect of any of the incidents. However, in the last
para of the complaint the omnibus statement is made by the victim as
hereunder:
"£À£Àß UÀAqÀ, CvÉÛ, ªÀiÁªÀ EªÀgÉ®ègÀÆ MnÖUÉ ¸ÉÃjPÉÆAqÀÄ, £Á£ÀÄ ªÀÄzÀĪÉAiÀiÁzÀ ¢£À¢AzÀ
E°èAiÀÄ vÀ£ÀPÀ £À£ÀUÉ zÉÊ»PÀ ªÀÄvÀÄÛ ªÀiÁ£À¹PÀ »A¸É PÉÆlÄÖ FUÀ®Æ PÀÆqÀ £À£ßÀ £ÀÄß UÀAqÀ£À
eÉÆvÉ ¸ÀA¸ÁgÀ ªÀiÁqÀ®Ä ©qÀzÉ £Á£ÀÄ PÉ®¸ÀPÌÉ ¸ÉÃjzÀgÉ ªÀiÁvÀæ ªÀÄ£ÉUÉ ¸ÉÃj¸ÀÄvÉÛÃªÉ JAzÀÄ
£É¥ÀªÀÇrØ £À£ÀߣÀÄß ªÀģɬÄAzÀ DZÉUÉ Nr¹ C¥ÀgÁzÀsªÉ¸ÀVzÁÝgÉ."
16 Crl.A.No.782/2017
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If the complaint averments referred herein above are taken into
consideration, it is clear that from the next date of marriage of victim,
the accused No.1 started to give ill-treatment and harassment to the
victim. But the alleged incident regarding the quarrel made by the
accused No.1 with the victim was on 04.07.2011. Thereafter,
according to complaint averments, on 13.07.2011 the victim came to
her parents house for observing Aashada month and thereafter, she
did not return to the house of accused persons. Hence, as submitted
by the counsel for accused persons, if the complaint averments are
considered, it is clear that the victim resided with the accused persons
in the matrimonial house only for the period of about 45 days from the
date of her marriage.
20. The complaint at Ex.P.1 is dated 02.06.2012 i.e., after about
11 months from the date of alleged incident occurred on 04.07.2011
the complaint at Ex.1 was given to the police. Further, even though
the complaint at Ex.P.1 is dated 02.06.2012, it was given to the police
on 07.06.2012 i.e. after 5 days of drafting of the complaint at Ex.P.1.
As argued by the counsel for accused persons, there is absolutely no
explanation forthcoming from the prosecution for the delay of about 5
days from the date of drafting of the complaint and also delay of more
than 11 months after the alleged incident. Hence, doubt arises
17 Crl.A.No.782/2017
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Crl.A.No.1210/2017
regarding complaint averments in respect of the alleged harassment
and ill-treatment by the accused person to the victim.
21. It is not in dispute that the victim was having speech
problem i.e. she was stammering when she speaks and she took
treatment at Mysore and at the time of her marriage with accused
No.1, her problem was cured. One document issued by Indian Institute
of Speech and Hearing Management, Mysore in respect of therapy
given to the victim is produced as per Ex.P.10. As per the complaint
averments the accused No.1 married the victim due to pressure of his
parents and the said fact was allegedly told by the accused No.1 with
the victim on the next date of her marriage.
22. However, in the chief-examination itself, the evidence of
victim as P.W.1 reads thus:
"£À£ÀUÉ aPÀÌ ªÀAiÀĹì¤AzÀ ªÀiÁvÀ£ÁqÀ®Ä ¸ÀªÄÀ ¸Éå¬ÄzÀÄÝ D §UÉÎ £Á£ÀÄ aQvÉìAiÀÄ£ÀÄß
vÉUÉzÀÄPÉÆArzÉÝ£ÀÄ. ¸ÀzÀj «µÀAiÀĪÀ£ÀÄß ªÀÄzÀĪÉUÆÀ ªÀÄÄAZÉ DgÉÆævÀjUÉ ºÉýzÀÄÝ CzÀÄ
UÉÆvÁÛzÀ £ÀAvÀgÀªÉà ªÀÄzÀÄªÉ ªÀiÁrPÉÆArgÀÄvÁÛgÉ."
Further, the P.W.1 in her evidence in cross-examination has deposed
that:
"£Á£ÀÄ ªÀÄzÀÄªÉ ¸ÀAzÀ¨sÀðzÀ°è £À£ÀUÉ EzÀÝ ªÀiÁvÀ£ÁqÀĪÀ vÉÆAzÀgÉUÉ ªÉÊzÀågÀ §½ aQvÉìAiÀÄ£ÀÄß
¥ÀqÉzÀÄ UÀÄtªÀÄÄRªÁVzÉÝ JAzÀÄ ºÉýzÉÝ JAzÀgÉ ¸Àj."
18 Crl.A.No.782/2017
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Therefore, the contention of the victim that the accused No.1 was not
willing to marry her, as she had speech impairment is proved to be not
believable.
23. The C.W.2 Jayaram is father of the victim. He has been
examined as P.W.2. In the evidence in chief-examination, the P.W.2
has reiterated the fact averred by the P.W.1 in her chief-examination.
However, as submitted by the counsel for accused persons, in the
chief-examination itself the P.W.2 has deposed that:
"CªÀgÀ ªÀÄ£ÉAiÀÄ°è ¸ÀºÀ ªÀÄvÉÛ DgÉÆævÀgÄÀ £À£ßÀ ªÀÄUÀ¼À ªÀiÁvÀ£ÁqÀĪÀ ¸ÀªÄÀ ¸ÉåAiÀÄ §UÉÎ
PÉýzÀgÀÄ ¸ÀĪÀiÁgÀÄ JgÀqÀÄ UÀAmÉ PÁ® D §UÉÎ ªÀiÁvÀÄPÀvÉAiÀiÁVgÀÄvÀÛzÉ. £ÁªÀÅ £À£ßÀ ªÀÄUÀ½UÉ
aQvÉÛAiÀÄ£ÀÄß PÉÆr¹zÀ §UÉÎ w½¹gÀÄvÉÛÃªÉ ºÁUÀÆ CzÀÄ PÁ¬Ä¯É EgÀĪÀÅ¢®è ªÀiÁvÀ£ÁqÀ®Ä
¥ÁæQÖÃ¸ï ªÀiÁqÀ¨ÉÃPÁUÀÄvÀÛzÉ CªÀ¼ÀÄ ªÀiÁqÀÄwÛzÝÀÁ¼É JAzÀÄ ºÉýzÉ£ÄÀ . D ¸ÀªÄÀ AiÀÄzÀ°è MAzÀ£ÉÃ
DgÉÆæAiÀÄ vÀAzÉ ¤ÃªÀÅ ªÀÄzÀÄªÉ vÀAiÀiÁj £Àqɹ JAzÀÄ ºÉýzÀgÄÀ ."
The C.W.3 Jayanthi Jayaram is mother of the victim. According to her
evidence in chief-examination also, the relevant portion reads thus:
"CªÀgÀ ªÀÄ£ÉAiÀÄ°è ¸ÀºÀ ªÀÄvÉÛ DgÉÆævÀgÄÀ £À£ßÀ ªÀÄUÀ¼À ªÀiÁvÀ£ÁqÀĪÀ ¸ÀªÄÀ ¸ÉåAiÀÄ §UÉÎ
PÉýzÀgÀÄ ¸ÀĪÀiÁgÀÄ JgÀqÀÄ UÀAmÉ PÁ® D §UÉÎ ªÀiÁvÀÄPÀvÉAiÀiÁVgÀÄvÀÛzÉ. £ÁªÀÅ £À£ßÀ ªÀÄUÀ½UÉ
aQvÉÛAiÀÄ£ÀÄß PÉÆr¹zÀ §UÉÎ w½¹gÀÄvÉÛÃªÉ ºÁUÀÆ CzÀÄ PÁ¬Ä¯É EgÀĪÀÅ¢®è ªÀiÁvÀ£ÁqÀ®Ä
¥ÁæQÖÃ¸ï ªÀiÁqÀ¨ÉÃPÁUÀÄvÀÛzÉ CªÀ¼ÀÄ ªÀiÁqÀÄwÛzÝÀÁ¼É JAzÀÄ ºÉýzÉ£ÄÀ . D ¸ÀªÄÀ AiÀÄzÀ°è MAzÀ£ÉÃ
DgÉÆæAiÀÄ vÀAzÉ ¤ÃªÀÅ ªÀÄzÀÄªÉ vÀAiÀiÁj £Àqɹ JAzÀÄ ºÉýzÀgÄÀ ."
The said evidence of P.W.3 also clearly goes to show that the accused
persons knew regarding speech impairment of the victim at the time of
marriage and in spite of such speech impairment, the accused persons
agreed to take the victim in marriage to the accused No.1. Therefore,
the evidence of P.W.1 to P.W.3 that the accused No.1 had no intention
19 Crl.A.No.782/2017
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of marrying the victim and he married the victim on the pressure of his
parents when the accused No.2 and 3 is proved to be most
improbable.
24. The evidence of P.W.2 and 3 in the chief-examination is in
accordance with the evidence of P.W.1 in chief-examination. However,
if the entire evidence of P.W.1 to P.W.3 is taken into consideration, it
is clear that there are improvements in their evidence from the
averments made in the complaint at Ex.P.1.
25. The P.W.4 Vijaya Srinivas is elder sister of P.W.3, who is
mother of the victim. Hence, it is not in dispute that the P.W.4 is elder
maternal aunt of the victim. The P.W.4 has deposed regarding the
alleged ill-treatment by the accused persons to the victim. As per the
evidence of P.W.4, the victim and P.W.3 told her regarding the alleged
ill-treatment by the accused persons to the victim. The P.W.4 has also
deposed that there was Panchayath held on 25.03.2012 in the parents'
house of accused No.1 and at that time accused No.1 was not present.
But in the evidence in chief-examination of P.W.4, the relevant portion
reads thus:
"¸ÀvÀå£ÁgÁAiÀÄt ¥ÀÇeÉ £ÀAvÀgÀ £Á£ÀÄ »AwgÀÄV ¥ÀÇ£ÀPÌÉ ºÉÆÃzÉ£ÄÀ . ¥ÀÇ£ÁPÉÌ ºÉÆÃzÀ £ÀAvÀgÀ
¨ÉAUÀ¼ÀÆj£À°è £ÀqÉzÀ Wl£É PÀÄjvÀÄ £À£ßÀ vÀAV £À£ÀUÉ zÀÆgÀªÁtô ªÀÄÆ®PÀ ºÉýzÀ¼ÄÀ CAzÀgÉ
¸Àj EzÉ. £À£Àß vÀAV ºÉýzÀÝ£ÄÀ ß ºÉÆgÀvÄÀ ¥Àr¹ ¨ÉÃgÉ «µÀAiÀÄzÀ PÀÄjvÀÄ £À£ÀUÉ ªÀiÁ»w E®è."
20 Crl.A.No.782/2017
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This evidence clearly goes to show that the evidence of P.W.4 is
hearsay evidence based on the version given to her by her younger
sister P.W.3 over phone.
26. The P.W.5 J.N. Srinath is younger brother of P.W.3. Hence,
it is not in dispute that the P.W.5 is maternal uncle of the victim. The
P.W.5 has also deposed regarding the alleged ill-treatment and the
alleged Panchayath conveyed on 25.03.2012. If the cumulative effect
of P.W.5 is taken into consideration, it is clear that his version
regarding the alleged ill-treatment by the accused persons to P.W.1 is
hear say evidence.
27. The P.W.6 Abhinav Jayaram is younger brother of the
victim. The evidence of P.W.6 is also similar to the evidence of P.W.1
to P.W.3 regarding the alleged ill-treatment. However, in the evidence
in cross-examination of P.W.6 the relevant portion reads thus:
"£À£Àß CPÀÌ£À ªÀÄzÀÄªÉ ¤²ÑvÁxÀðªÀ£ÀÄß DgÉÆæUÀ¼ÄÀ ªÀiÁrPÉÆArzÀÝgÄÀ JAzÀgÉ ¸Àj ªÀÄvÀÄÛ CzÀgÀ
RZÀð£ÀÄß DgÉÆæUÀ¼ÀÄ ªÀiÁrPÀÆArzÀÝgÄÀ JAzÀgÉ ¸Àj........... DgÉÆæUÀ¼ÄÀ ¸Àé®à ºÀt
PÉÆqÀÄvÉÛÃªÉ ªÀÄvÀÄÛ «ZÉÒÃzÀ£Á PÉÆqÀÄ CAvÀ £À£ßÀ vÀAzÉUÉ ºÉýzÀÝgÄÀ J£ÀÄߪÀ «ZÁgÀ F PÉùUÉ
C£ÀÄPÀÆ®ªÁUÀĪÀ ¸Àȶ֥Àr¹zÉ JAzÀgÉ ¸Àj. £ÀAvÀgÀ E®è CAvÀ GvÀÛj¸ÀÄvÁÛgÉ. ªÀÄzÀĪÉ
¸ÀªÀÄAiÀÄzÀ°è £À£Àß CPÀ̤UÉ AiÀiÁªÀ MqÀªÉUÀ¼À£ÄÀ ß PÉÆnÖvÀÄÛ J£ÀÄߪÀ «µÀAiÀĪÀ£ÄÀ ß ¥ÉÇð¸ÀgÀ
ªÀÄÄAzÉ ºÉý®è JAzÀgÉ ¸Àj."
If the above referred evidence of P.W.6 is considered, it is clear that
there are discrepancies in his evidence.
21 Crl.A.No.782/2017
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28. Further, the P.W.6 in his evidence in cross-examination has
also deposed that:
"ªÀÄzÀĪÉAiÀiÁzÀ £ÀAvÀgÀ £À£ßÀ CPÀÌ DgÉÆæUÀ¼À ªÀÄ£ÉAiÀÄ°è ¸ÀĪÀiÁgÀÄ 45 ¢£À ªÁ¸À«zÀÝgÄÀ . 45
¢£ÀUÀ¼À £ÀAvÀgÀ DµÁqÀ ªÀiÁ¸ÀPÌÉ £À£ßÀ CPÀÌ ªÀÄ£ÉUÉ §AzÀ¼ÄÀ JAzÀgÉ ¸Àj. £À£ßÀ CPÀÌ dįÉÊ 6
ªÀÄvÀÄÛ 7 gÀAzÀÄ £ÀªÄÀ ä ªÀÄ£ÉUÉ §AzÁUÀ DgÉÆæ §AzÀÄ CªÀ¼À PÀÄwÛUÉAiÀÄ£ÀÄß »¸ÀÄPÀ®Ä
¥ÀæAiÀÄvÀߥÀlÖ «ZÁgÀ UÉÆvÁÛ¬ÄvÀÄ. F «µÀAiÀĪÀ£ÄÀ ß £Á£ÀÄ ¥ÉÇð¸ÀgÀ ªÀÄÄAzÉ ºÉýzÀ §UÉÎ
£É£À¦®è."
This evidence of P.W.6 clearly goes to show that his evidence
regarding the alleged incident is not direct evidence and he is not the
eye witness to any such alleged incident. Except the father, mother,
maternal elder aunt, maternal uncle and brother of the victim, who are
examined as P.W.2 to P.W.6 respectively, there is absolutely no
independent oral evidence forthcoming from the prosecution to prove
any incident to prove that the accused persons subjected the victim to
any kind of mental and physical harassment.
29. Moreover, if at all the accused No.1 tried to strangulate
P.W.1 by pressing her neck on 04.07.2011, the P.W.1 should have
taken treatment regarding any such injury. As stated herein above, the
complaint at Ex.P.1 was given after more than 11 months of the date
of alleged incident. There is absolutely no material forthcoming from
the prosecution to show that the P.W.1 gave any complaint against the
accused persons earlier to the complaint at Ex.P.1.
22 Crl.A.No.782/2017
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30. It is true that the learned Magistrate has referred to the
provision of Sec.498-A of IPC in the impugned judgment. Now it is also
pertinent to refer to Sec.498-A of IPC which reads thus:
"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
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 willful 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 to meet
such demand."
As pointed out by the counsel for accused persons, the cruelty under
Section 498-A IPC arises only if there is any willful conduct on the part
of accused persons which is of such a nature as is likely to drive the
victim to commit suicide or to cause grave injury or danger to her life,
limb or health (whether mentally or physically) or the harassment of
the victim where such harassment is with a view of coercing the victim
or any person related to her to meet any lawful demand for any
properly or valuable security or is on account of failure by her or any
person related to her to meet such demand.
23 Crl.A.No.782/2017
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31. In the case on hand, there is absolutely no averment in the
complaint at Ex.P.1 and also in evidence of P.W.1 to show that any of
the accused persons unlawfully demanded any property or valuable
security from the victim and thereby when the victim failed to comply
with such demand, the accused persons subjected her to any ill-
treatment or harassment.
32. Further, as pointed out herein above, if the complaint
averments are meticulously considered, there is absolutely no material
to show that any such allegation is of such a nature of cruelty which
caused grave injury or danger to the life, limb or health of the victim
or any such alleged cruelty had driven the victim to commit suicide.
Hence, as submitted by the counsel for accused persons, even though
the learned Magistrate has referred to Sec.498-A of IPC in the
impugned judgment, the learned Prosecutor has utterly failed to come
to the conclusion that the accused persons subjected the victim to any
cruelty within the meaning of Sec.498-A of IPC. Therefore, it is
pertinent to note that the learned Magistrate has failed to appreciate
the evidence available on record in proper prospective and thereby he
has failed to come to the conclusion that the accused No.1 subjected
the victim to any kind of cruelty.
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33. Moreover, the counsel for accused persons has relied on the
decision of Hon'ble Supreme Court of India reported in 2010(2) G.L.H.
640 SC (Bhaskar Lal Sharma and Anr. Vs Monica) in which regarding
quashing of the FIR in the case for the offence punishable under
Section 204, 281, 498-A of IPC it is held that:
"The allegations relating to the place where the marriage took place
has nothing to do with an offence under Section 498-A of the IPC.
Allegations that appellant No.2 kicked the respondent with her leg
and told her that her mother to be a liar may make out some other
offence but not the one punishable under Section 498-A. Similarly
her allegations that the appellant No.2 poisoned the ears of her son
against the respondent; she gave two used lady suits of her
daughter to the complainant and has been given perpetual sermons
to the complainant could not be said to be offences punishable
under Section 498-A."
The counsel for accused persons has also relied on another decision of
Hon'ble Supreme Court of India reported in (2010) 7 SCC 667 (Preeti
Gupta & Another Vs State of Jharkhand & Another) in which for the
offence punishable under Section 498-A of IPC it is held that:
"It is a matter of common knowledge that unfortunately matrimonial
litigation is rapidly increasing in our country. All the courts in our
country including the Supreme Court are flooded with matrimonial
cases. This clearly demonstrates discontent and unrest in the family
life of a large number of people of society. It is a matter of common
experience that most of these complaints under Section 498-A IPC
are filed in the heat of the moment over trivial issues without proper
deliberations. It is seen that a large number of such complaints are
not even bonafide and are fled with oblique motive."
As pointed out by the counsel for accused persons, the meticulous
consideration of principles of law laid down in the above referred
decisions clearly go to show that Hon'ble Supreme Court of India has
come down heavily regarding trivial allegations made against the
25 Crl.A.No.782/2017
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husband and his family members in the case for the offence under
Section 498-A of IPC.
34. As discussed herein above, the entire averments in the
complaint do not make out any case to show that the victim was
subjected to any kind of cruelty by the accused persons. Moreover,
even for the sake of argument, the allegations made in the complaint
are considered as true, if the provision of Sec.498-A of IPC is taken
into consideration, any such allegations do not make out a case
against the accused persons of any cruelty. Further, it is very pertinent
to note that the learned Magistrate has acquitted the accused No.2
and 3 under the impugned judgment. But, in spite of acquittal of
accused No.2 and 3, the learned Magistrate has committed error in
convicting the accused No.1, even though there are no ingredients
made out against the accused No.1 also, for the offence punishable
under Section 498-A of IPC.
35. As pointed out herein above earlier, the counsel for accused
persons has submitted that there are improvements in the evidence of
P.W.1 to P.W.6 regarding the case alleged against the accused
persons. As against this contention, the learned Prosecutor has drawn
the attention of this Court to the decision of our Hon'ble High Court of
Karnataka reported in 2004 (5) Kar.L.J. 269 (DB) (Karbasappa and
26 Crl.A.No.782/2017
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Crl.A.No.1210/2017
others Vs State through Narona Police Station), in which referring to the
provision of Sec.3 of Evidence Act, it is held that:
"Some inconsistence of a minor nature in the evidence of the
witness can be regarded as natural giving more details while
deposing before the Court are not to be treated as improvements of
such a nature as would create any doubt regarding the
trustworthiness of a witness."
There is absolutely no dispute regarding the principle of law laid down
in the above said decision. But as submitted by the counsel for
accused persons, in the case on hand it is not minor inconsistencies
and improvements in the evidence of P.W.1 to P.W.6 to the complaint
averments.
36. As argued by the counsel for accused persons, in the
evidence the P.W.1 and also the P.W.2 to P.W.6 have tried to make
out entirely different case regarding the cruelty allegedly meted out by
the accused persons to the victim. Therefore, even though there is no
dispute regarding principle of law laid down in the above referred
decisions, the said decision does not help the learned Prosecutor to
discard the argument put forth by the counsel for accused persons
that there are improvements in the evidence of prosecution witnesses
and hence, such evidence is not trustworthy for consideration.
37. The P.W.7 B.R. Harish and P.W.8 Raghuveer are alleged to
be the attesters to the spot mahazar at Ex.P.7. They have deposed
27 Crl.A.No.782/2017
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that the police drew mahazar in the house of accused persons on
08.06.2012 and they put their signatures to the said mahazar. The
signatures of P.W.7 and P.W.8 in Ex.P.7 are marked at Ex.P.7(b) and
Ex.P.7(c) respectively. However, as submitted by the counsel for
accused persons, the victim as P.W.1 in her evidence in chief-
examination itself has deposed that she put the signature to the
mahazar in the police station and she does not remember when she
put her signature to the said mahazar and she also does not know the
contents of the said mahazar.
38. The further evidence in chief-examination of P.W.1 is
deferred by the Sr.A.P.P. and after about 6 days again the P.W.1 was
subjected to further chief-examination, wherein she has deposed that
the police drew spot mahazar and took her signature. The said
mahazar is at Ex.P.7. Hence, there are discrepancies in the evidence of
P.W.1 regarding spot mahazar at Ex.P.7. Moreover, even though the
evidence of P.W.1, P.W.7 and P.W.8 are considered in proof of the
mahazar at Ex.P.7, that itself does not make out any case against the
accused persons for the offence charged against them, unless the
prosecution proves beyond all reasonable doubt that the accused
persons subjected the victim to physical and mental cruelty as
contended.
28 Crl.A.No.782/2017
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Crl.A.No.1210/2017
39. As discussed herein above, there are discrepancies and
inconsistencies in the evidence of P.W.1 to P.W.6 regarding the case
put forth by the prosecution against the accused persons. Hence, even
if the evidence of P.W.1, P.W.7 and P.W.8 are considered regarding
spot mahazar at Ex.P.7, such evidence and the document at Ex.P.7 do
not help the prosecution to prove the case charged against the
accused persons beyond all reasonable doubt.
40. The P.W.9 Sheshadri Iyengar is the then Head Constable of
complainant police station. The P.W.9 is alleged to have apprehended
accused No.1 and produced him before the I.O. Hence, his evidence
does not merit consideration.
41. The P.W.10 Vijayendra is the then Head Constable of
complainant police station. According to the evidence of P.W.10, he
registered the case on the complaint of P.W.1. as per Ex.P.1 and took
up investigation. He also recorded statement of concerned witnesses
and after completion of investigation he filed charge sheet against the
accused persons. But unless there is cogent evidence forthcoming
from the independent witnesses, the evidence of P.W.10 regarding
investigation of the case does not stand for consideration.
42. Moreover, as discussed herein above, there are
improvements and inconsistencies in the evidence of P.W.1 and other
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materials witnesses. It is true that the photos and invitation of
marriage of victim with accused No.1 are produced and marked as
Exs.P.2 to P.6 and P.8 respectively. But, as stated herein above, there
is no dispute regarding the marriage of accused No.1 with the victim.
Therefore, the photos at Ex.P.2 to Ex.P.6 and the marriage invitation
at Ex.P.8 do not arise for consideration in the case on hand.
43. However, the main contention of the counsel for accused
persons is regarding C.D. at Ex.P.9. The counsel for accused persons
has argued that the prosecution has tried to mislead this Court by
saying that the CD at Ex.P.9 was already proved by the prosecution.
But, on the contrary, the said CD at Ex.P.9 was not the document
produced along with the charge sheet. As pointed out by the counsel
for accused persons, the C.W.10 Vijayendra, the then Head Constable,
who conducted investigation of the case has deposed in his cross-
examination that he did not verify as to what is the contents of CD at
Ex.P.9. Further, the evidence on record clearly goes to show that the
CD at Ex.P.9 is not a part of the prosecution papers collected at the
time of investigation of the case.
44. Moreover, it is very interesting to note that the victim-P.W.1
in her evidence has deposed that the CD at Ex.P.9 is regarding the
video recorded during her marriage. On the other hand, the P.W.2 has
30 Crl.A.No.782/2017
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deposed that it was the CD regarding recording of Panchayath held on
25.03.2012. At this stage, it is relevant to refer the relevant portion in
the complaint at Ex.P.1 which reads thus:
"£À£ÀߣÀÄß UÀAqÀ£À ªÀÄ£ÉUÉ ¸ÉÃj¸ÀĪÀ ¥ÀæAiÀÄvÀßzÀ°è ¥ÀAZÁ¬Äw ªÀiÁrzÁUÀ, £À£ßÀ ªÀiÁªÀ £ÀªÄÀ ä
ªÀÄ£ÉAiÀÄ°è ¤ªÀÄä ªÀÄUÀ¼ÀÄ CZÀð£ÁUÉ K£ÁzÀgÆ À DzÀgÉ CzÀPÌÉ £ÁªÉà dªÁ¨ÁÝgÀgÄÀ JAzÀÄ
§gÉzÀÄPÉÆr JAzÀÄ ¤§AzÀs£É MrØgÀÄvÁÛgÉ."
It is true that there is reference to convening of Panchayath in the
complaint at Ex.P.1. But there is absolutely no mention of the date of
any such Panchayath. There is also no mention in the complaint that
any voice recording was done regarding any such Panchayath.
45. As pointed out by the counsel for accused persons, in the
document at Ex.P.9(a), which is the writing version of CD at Ex.P.9 the
case number is mentioned as C.C.No.24115/2012. As per the evidence
of prosecution, the Ex.P.9(a) is written by the complainant herself.
Hence, mentioning of case number in the document at Ex.P.9 clearly
goes to show that the said document and the CD at Ex.P.9 was came
to existence after filing of charge sheet that too at the time of
evidence of prosecution witnesses before the learned Magistrate.
Hence, without there being any basis for the CD at Ex.P.9 in the
investigation of the case, the learned Magistrate has committed error
in relying on such CD to come to the conclusion that the prosecution
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has proved beyond all reasonable doubt the offence charged against
the accused No.1.
46. Further, the submission of the learned Prosecutor is that the
learned Magistrate has committed error in not convicting the accused
No.2 and 3 and hence, the learned Magistrate has not considered the
CD at Ex.P.9. As per the case of prosecution itself, the accused No.1
was not present at the time of alleged Panchayath held on 25.03.2012.
Therefore, the CD at Ex.P.9 along with the document at Ex.P.9(a) does
not stand for consideration to make out any case against the accused
No.1 and also against the accused No.2 and 3.
47. As submitted by the counsel for accused persons, the
prosecution has not produced relevant document in the form of
concerned certificate in accordance with Sec.65-B of Indian Evidence
Act regarding admissibility of CD at Ex.P.9 in the evidence. Further, the
CD at Ex.P.9 was not subjected to any chemical or scientific
examination to prove its authenticity. Hence, the learned Magistrate
has committed error in taking into consideration that CD at Ex.P.9 as
evidence to prove the case alleged by the prosecution against the
accused persons.
48. The learned Magistrate has discussed in the impugned
judgment that the learned Senior Assistant Public Prosecutor has
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submitted in his written argument that the victim filed divorce petition
against accused No.1 in M.C.No.961/2013 and the said petition was
disposed of on 13.02.2017 granting divorce on the ground of cruelty.
On the basis of such fact, the learned Magistrate has come to the
conclusion that the prosecution has proved the offence punishable
under Section 498-A of IPC against the accused No.1 beyond all
reasonable doubt. But it is very pertinent to note that the learned
Magistrate has lost sight of the fact that he cannot consider any such
divorce petition as any of the papers of the said petition, either the
judgment or the deposition of the concerned witnesses of the said
case, is evidence before him in the criminal case.
49. Unless the learned Magistrate comes to the conclusion as to
why the Family Court granted divorce in favour of the victim in the
said case, mere submission of the learned Sr. APP that the MC petition
filed by the victim against accused No.1 before the Family Court was
allowed and the divorce was granted in favour of the victim and
against the accused No.1 on the ground of cruelty cannot be a ground
to come to the conclusion that the accused No.1 has committed
offence punishable under Section 498-A of IPC.
50. As stated herein above, neither the copy of judgment nor
copy of any of the depositions of the concerned M.C. petition is not the
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evidence before the learned Magistrate in the case on hand. Therefore,
merely on the basis of argument put forth by the learned Sr. APP, the
learned Magistrate should not have come to the conclusion that the
accused No.1 has committed Act of cruelty against the victim on the
basis that the divorce petition filed by the victim against accused No.1
was allowed in the Family Court.
51. Moreover, the learned Magistrate has failed to consider the
fact that the said divorce petition was filed in the year 2013 i.e. during
the pendency of criminal case and the said petition was also disposed
of during the pendency of criminal case, i.e. on 13.02.2017. The
impugned judgment was passed on 06.05.2017. Therefore, the divorce
petition filed by the victim against accused No.1 does not merit
consideration to prove the cruelty alleged against the accused persons
as on the date of the complaint at Ex.P.1 or earlier thereto. Hence, the
reasoning of the learned Magistrate in the impugned judgment clearly
goes to show that he has decided the case against accused No.1
coming to the conclusion that accused No.1 has committed the offence
charged against him on the basis of extraneous materials than the oral
and documentary evidence before him in the case. Hence, on this
ground also, it is clear that the learned Magistrate has committed error
in convicting the accused No.1 for the offence charged.
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52. Further, the reasoning of the learned Magistrate in the
impugned judgment that the accused No.1 has failed to take steps for
restitution of conjugal rights before the Family Court by filing
necessary petition also does not stand for consideration, as it is not
based on the evidence available on record. It is the case of the victim
that the accused persons has thrown her out of matrimonial house.
Hence, if at all the victim was willing to join matrimonial house to lead
marital life with accused No.1, she could have taken necessary steps
than filing petition for divorce. Hence, even if it is accepted that the
petition for divorce filed by the victim against the accused No.1 is
allowed in the Family Court cannot be a ground to come to the
conclusion that the accused persons subjected the victim to any kind
of cruelty.
53. The learned Prosecutor has challenged the impugned
judgment on the ground that the learned Magistrate has committed
error in acquitting the accused No.2 and 3 and also in imposing lesser
punishment to the accused No.1. However, as discussed herein above,
there is absolutely no material against accused No.2 and 3 to come to
conclusion that those accused persons committed any offence
punishable under Section 498-A of IPC. Therefore, the learned
Magistrate has not committed any error in acquitting accused No.2 and
3 in the case on hand. When the CD at Ex.P.9 is not admissible in
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evidence before the learned Magistrate without there being proper
authentication in respect of the said CD, only on the basis of said CD
the Court cannot come to the conclusion that the accused No.2 and 3
have committed any offence punishable under Section 498-A of IPC.
54. Moreover, as pointed out by the counsel for accused
persons, as per the complaint averments when the victim was in her
parents house she contacted accused No.1 over phone for wishing him
on his birthday. If at all the accused persons committed any cruelty
against the victim to make out offence under Section 498-A of IPC, the
question of victim contacting accused No.1 over phone to wish him on
his birthday should not have arisen. Therefore, the complaint
averments of the evidence of P.W.1 create doubt regarding the case
alleged against the accused persons.
55. Further, as discussed herein above at the initial stage, the
contents of complaint at Ex.P.1 do not make out any case of cruelty as
per provision of Sec.498-A of IPC. Therefore, the learned Magistrate
has committed error in convicting accused No.1 and imposing sentence
on him for the offence punishable under Section 498-A of IPC under
the impugned judgment.
56. As discussed herein above, the contention of the learned
Prosecutor regarding Panchayath allegedly held on 25.03.2012 does
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not merit consideration as CD at Ex.P.9 does not arise for
consideration on the facts of the case and also in law. Further, as
submitted by the learned Prosecutor in the written argument, it is an
undisputed fact that there is no dowry issue involved in the case.
Hence, on this ground also, it is clear that the prosecution has failed to
make out any case for the offence punishable under Section 498-A of
IPC against accused No.1 also beyond all reasonable doubt.
57. Moreover, the points urged by the learned Prosecutor that
the accused persons made delay tactics to prolong the case before the
learned Magistrate and the accused No.1 did not comply with the stay
order cannot be a ground to come to the conclusion that the accused
No.1 has committed offence punishable under Section 498-A of IPC.
Even if it is accepted that due to delay tactics of the accused persons
the proceedings before the learned Magistrate was prolonged, cannot
be a ground to convict the accused persons in the case. Therefore, any
of the points urged by the learned Prosecutor in his written argument
is not a ground to come to conclusion that the accused persons have
committed offence charged against them beyond all reasonable doubt.
58. From the discussions made herein above, it is clear that the
accused No.1 has clearly proved that the learned Magistrate has failed
to appreciate the oral and documentary evidence forthcoming on
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record in proper prospective and thereby the learned Magistrate has
committed error in convicting him for the offence punishable under
Section 498-A of IPC under the impugned judgment. Therefore, the
impugned judgment calls for interference at the hands of this Court in
this appeal filed by the accused No.1 as sought for.
59. On the other hand, there is no error committed by the
learned Magistrate in acquitting accused No.2 and 3. Moreover, when
the accused No.1 is liable to be acquitted, the question of
enhancement of sentence imposed on him by the learned Magistrate
under the impugned judgment does not arise. Therefore, the learned
Prosecutor has failed to make out any ground to show that the learned
Magistrate has committed any error in acquitting accused No.2 and 3
for the offence charged under the impugned judgment. The learned
Prosecutor has also failed to make out any ground to enhance the
sentence imposed on the accused No.1 as sought for in his appeal.
Therefore, the points No.1 and 2 are answered in the affirmative and
the points No.3 and 4 are answered in the negative.
60. Points No.5 and 6: From the discussions made herein
above, it is clear that the prosecution has failed to prove beyond all
reasonable doubt that the accused persons committed offence
punishable under Section 498-A of IPC as alleged against them. Hence,
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as submitted by the counsel for accused persons, the learned
Magistrate has committed error in convicting the accused No.1 for the
offence punishable under Section 498-A of IPC under impugned
judgment.
61. The meticulous consideration of the reasoning of learned
Magistrate in the impugned judgment clearly goes to show that the
learned Magistrate has given much importance to extraneous things
without considering the oral and documentary evidence forthcoming
on record in proper prospective. The learned Magistrate has committed
error under the impugned judgment shifting burden on the accused
persons to prove their case instead of putting burden on the
prosecution to prove their case beyond all reasonable doubt.
62. As discussed herein above, there is absolutely no
independent oral and documentary evidence forthcoming from the
prosecution to prove that the accused persons subjected the victim-
P.W.1 to any kind of mental and physical harassment and ill-treatment
as contended by the P.W.1 in her complaint at Ex.P.1. On the other
hand, the oral evidence of prosecution witnesses and the documents
produced by the prosecution makes the case of prosecution most
improbable. Hence, doubt arises regarding the case put forth by the
prosecution against the accused persons.
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63. It is well settled principle of law that the accused persons
are entitled to such benefit of doubt. Hence, as submitted by the
counsel for accused persons, the accused persons deserve to be
acquitted of the offences charged against them in the case. Therefore,
the learned Magistrate has committed error in convicting the accused
No.1 and sentencing him for the concerned offence under impugned
judgment. Hence, the accused No.1 has made out sufficient ground to
interfere with the impugned judgment of the learned Magistrate
regarding order of conviction and sentence passed against him at the
hands of this Court as sought for in their appeal. On the other hand,
the learned Prosecutor has failed to make out any ground to allow his
appeal. Therefore, the points No.5 is answered in the affirmative and
the point No.6 is answered in the negative.
64. Point No.7: From the discussions made herein above, it is
clear that the appeal filed by the accused No.1 in Crl.A.No.782/2017
deserves to be allowed and the appeal filed by the learned Prosecutor
in Crl.A.No.1210/2017 is liable to be dismissed. In the result,
therefore, I proceed to pass the following:
ORDER
The appeal in Crl.A.No.782/2017 filed by the accused No.1/ appellant under Section 374 of Cr.P.C. is hereby allowed.
40 Crl.A.No.782/2017C/w Crl.A.No.1210/2017 The appeal in Crl.A.No.1210/2017 filed by the learned Prosecutor under Section 378(1)(a) and Sec.377(1)(a) of Cr.P.C. is dismissed.
Hence, the judgment dated 06.05.2017 of the learned II Addl. Chief Metropolitan Magistrate, Benglauru in C.C.No.24115/2012 regarding order of conviction and sentence passed against the accused No.1 is set aside.
Consequently, the accused No.1 is acquitted of the offence punishable under Section 498-A of IPC.
The impugned judgment regarding acquittal of the accused No.2 and 3 of the offence punishable under Section 498-A of IPC shall stand confirmed.
The LCR shall be returned to the concerned Magistrate Court along with copy of this judgment forthwith.
The judgment is prepared in duplicate. The original copy shall be kept in the file in Crl.A.No.728/2017 and the copy thereof shall be kept in the file in Crl.A.No.1210/2017.
(Dictated to the Stenographer, transcript corrected by me and then pronounced in open Court on this the 31st day of January, 2018) (T.N. INAVALLY) XLV Addl. City Civil & Sessions Judge Bengaluru