Karnataka High Court
K R Nandakumar S/O Rangaswamy vs State Of Karnataka on 16 March, 2018
Equivalent citations: 2018 (3) AKR 355, (2018) 3 KCCR 2307, (2018) 3 KANT LJ 458, (2018) 2 ALLCRILR 336
Author: K.Somashekar
Bench: K.Somashekar
R
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 688 OF 2010
BETWEEN
K.R.NANDAKUMAR,
S/O RANGASWAMY,
AGED ABOUT 45 YEARS,
SRI RANGALAXMI STONE BUILDING,
VISWESWARAIAH EXTENSION,
SALAGAME ROAD,
HASSAN. ... APPELLANT
(BY SRI. A.H. BHAGAVAN AND SRI. A.N. RADHA KRISHNA,
ADVOCATES.)
AND
STATE OF KARNATAKA BY
GONIBEEDU POLICE.
... RESPONDENT
(BY SRI. NASRULLAKHAN, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE DATED 21.06.2010 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT, CHIKMAGALUR IN S.C. 80/2005
- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498 A R/W 34 OF IPC AND SEC.
4 OF D.P. ACT. THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR TWO YEARS AND PAY A
FINE OF RS. 5,000/- IN DEFAULT OF PAYMENT OF FINE HE
SHALL UNDERGO SIMPLE IMPRISONMENT FOR SIX MONTHS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 498 A R/W
34 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR SIX MONTHS AND PAY
A FINE OF RS. 5,000/- IN DEFAULT OF PAYMENT OF FINE HE
SHALL UNDERGO SIMPLE IMPRISONMENT FOR TWO MONTHS
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FOR THE OFFENCE PUNISHABLE UNDER SECTION 4 OF D.P.
ACT. THE ABOVE SENTENCES SHALL RUN CONCURRENTLY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 12.03.2018 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment of conviction and sentence passed by the Presiding Officer, Fast Track Court, Chickmagalur in S.C.No.80/2005 dated 21.06.2010 convicting the appellant-accused Nandakumar for the offences punishable under Section 498-A r/w. Section 34 of IPC besides Section 4 of Dowry Prohibition Act. The same has been challenged in this appeal by urging various grounds.
2. The brief facts of the case of the prosecution are as under:
Accused Nos. 1 and 2 are the residents of Salagame Road, Hassan. The deceased Ashwini is the daughter of CW1. She was aged 23 years and was working as a nurse in Hassan. The said Ashwini fell in love with first accused Nandakumar and the marriage of deceased Ashwini with first accused Nandakumar took place by way of registered marriage before the Marriage Officer, Mysore South, Mysore :3: on 19.03.2004. Subsequent to the marriage with first accused, for about four months, both of them lived happily. During the month of August 2004 deceased went to the house of her parents in Anajur and told her parents that accused No.1 had already married one Jayalakshmi who is accused No.2 in this case and they have got two children.
3. It is the further case of the prosecution that the first accused Nandakumar who married earlier had not told the said fact to deceased Ashwini and by concealing the said fact he had married her. Accused Nos. 1 and 2 were harassing the deceased to go to her parental house and bring a dowry in a sum of Rs.2.00 lakhs. When the deceased went to her parental house and informed the parents about the demand made for dowry, her father, CW1, with great difficulty arranged a sum of Rs.10,000/- and gave it to the deceased and the deceased paid the same to accused No.1. Being not satisfied with the same, accused Nos. 1 and 2 again sent back the deceased to her parental house for fulfilling the demand for dowry made by them and also told her not to come to her matrimonial house without bringing the dowry amount.
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4. It is the further case of the prosecution that when the deceased was in her parental house at Anajur, brothers of accused No.2 Jayalakshmi, accused Nos. 3 and 4 went to the house of CW1, threatened the deceased that she is the kept mistress of accused No.1 and she has no status as wife and if she does not bring the dowry they would put an end to her life. Even thereafter also they were threatening the deceased over phone and being unable to tolerate the harassment meted out to her, on 19.01.2005 at about 12.30 p.m. deceased consumed poison and was vomiting. Immediately, she was shifted to Mudigere Hospital where first aid was given and on the advise of the doctors she was taken to Mangalore Hospital, but on the way, near Ujire, at about 5.00 p.m. she breathed her last. Immediately, CW1 father of deceased, filed a complaint, which is registered in Crime No.4/2005 and the police have proceeded with the investigation. During the course of investigation the case was transferred to Anti Dowry Cell, C.O.D., Bangalore. After completion of the investigation, the I.O. has filed the charge sheet against the accused persons before the committal court in C.C.No.598/2005. After receipt of summons, the accused persons have appeared through their counsel. :5: Charges for the offences punishable under Sections 498-A r/w. 34, 306 r/w. 34, 506 Part II r/w. 34 IPC and Section 4 of Dowry Prohibition Act was framed against the accused persons. On hearing the charges that are read over to the accused, they did not plead guilty and claims to be tried.
5. Subsequent to the filing of the charge sheet against the accused persons, in order to establish the case against them the prosecution in all examined 19 witnesses as PWs. 1 to 19 and got marked 26 documents as Exs. P1 to P26. After closure of the prosecution evidence, statement of accused persons under Section 313 was recorded. Accused have denied the evidence of the prosecution. The accused did not come forward to adduce defence evidence as contemplated under law.
6. On appreciation of the oral and documentary evidence let in by the prosecution, by the impugned judgment of conviction and order of sentence, the Trial Court acquitted accused Nos.2 to 4, for all the charges levelled against them. The accused No.1 has been convicted for the offence punishable under Section 498-A r/w. Section 34 of IPC and sentenced to undergo simple imprisonment for a :6: period of 2 years and a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for six months and for the offence punishable under Section 4 of the Dowry Prohibition Act the accused No.1 was sentenced to undergo simple imprisonment for six months and fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for two months and ordered that both the sentences shall run concurrently. Being aggrieved by the same, the present appeal is preferred by accused No.1.
6. Heard Sri A.H.Bhagavan, learned counsel for the appellant and Sri Nasrulla Khan, learned Government Pleader for the State.
7. Sri A.H.Bhagavan, learned counsel appearing for the appellant contended that the trial court has rightly come to the conclusion that the prosecution has not proved the guilt of accused Nos. 2 to 4 of all the charges which are framed against them and acquitted accused Nos. 2 to 4. He contends that applying the same principle, the accused No.1 also has to be acquitted as accused No.1 stands on the better footing than that of accused Nos. 2 to 4 who have threatened deceased of taking away her life. There is no :7: evidence by the prosecution in order to prove the charges against accused No.1.
8. The learned counsel further submits that the prosecution has not proved the factum of the marriage of appellant-accused and deceased by cogent and reliable evidence even-though PW1 - father of deceased has been examined for the prosecution to establish the guilt against the accused. The marriage between accused No.1 and the deceased is not proved. But even assuming that the marriage had been registered, it becomes a void marriage as the accused No.1 was already married and had two children. If first wife is alive a second marriage is not permissible in the eye of law. But the trial court has erroneously come to the conclusion that the accused No.1 and deceased were got married at a registered office at Mysore and their marriage is a valid marriage and there is physical as well as mental harassment meted out to the deceased by accused No.1 to bring a dowry of Rs.2.00 lakhs from her parental house. The evidence adduced by the prosecution in order to prove the guilt of the accused is unnatural and improbable.
9. The learned counsel further contends that the prosecution has not proved the guilt of harassment and also :8: the demand for dowry made by accused No.1 from the deceased. But the evidence against the appellant is that he demanded Rs.2.00 lakhs for running household and the deceased brought only Rs.10,000/- from her parental house. The charges of harassment can only be on accused Nos. 2 to 4 who have demanded the deceased to bring Rs.2.00 lakhs otherwise deceased will not be allowed to come to her matrimonial house. But accused No.1 cannot be charged with harassment and demand of dowry. When the trial court, based on the evidence let in by the prosecution has acquitted the accused Nos. 2 to 4 for the offence punishable under Section 498-A r/w. Section 34 of IPC, the trial court ought to have acquitted the accused No.1 also for the offence punishable under Section 498-A IPC as well by extending benefit of doubt. Therefore, the trial court has failed to appreciate the evidence on record in a proper perspective and has misdirected itself in convicting the accused No.1.
10. The learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of REEMA AGGARWAL vs. ANUPAM AND OTHERS reported in 2004 SCC (Crl.) 699 in support of his contention relating to proof and necessity of the expression :9: 'husband' and so also the meaning and scope of the said expression in respect of offences punishable under Section 498-A of IPC wherein it is held that a person who enters into a marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any purpose enumerated in Sections 304-B and 498-A, whatever be the legitimacy of the marriage itself, hence husband contacting second marriage during subsistence of the earlier marriage can be charged under Sections 304-B and 498-A of IPC. Heydon's rule pressed into service, purposive construction and mischief rule applied, words and phrases 'husband', whereas in this case the appellant-accused No.1. Nandakumar had married the deceased before the Marriage Officer at Mysore but it is during the subsistence of the first marriage with accused No.2. But the prosecution has not proved the factum of marriage and whether it is a valid marriage. Since the marriage itself is not proved the question of meting out the cruelty would not arise.
11. Nextly the learned counsel for the appellant places reliance on the judgment of this Court in the case of : 10 : RAGHOTHAMAN AND OTHERS vs. STATE OF KARNATAKA AND ANOTHER reported in 2004 Crl.L.J.1974 wherein it was held that Section 498-A of IPC and Section 3 of Dowry Prohibition Act which are cruelty and dowry demand, there should be existence of a valid marriage. Where wife was married to some other person at time of her marriage with accused husband her marriage with accused husband is void ab initio. The proceedings against accused is liable to be quashed, more so when the competent court had also declared the marriage as void. In the case on hand, as on the date of marriage of the deceased with the first accused, he had already married 2nd accused and had two children. Such being the case, the alleged marriage itself is not a valid marriage and hence the offence under Section 498-A of IPC for cruelty and an offence under Section 4 of Dowry Prohibition Act for dowry cannot be maintained.
12. Nextly, learned counsel places reliance on the judgment of the Hon'ble Supreme Court in the case of KOPPISETTI SUBBHARAO ALIAS SUBRAMANIAM vs. STATE OF A.P. reported in 2009 Crl.L.J.3480 wherein it is held that cruelty to wife by the husband, need not be a : 11 : legally wedded person but includes any person ostensibly entering into marital relationship and the word 'husband' in Section 498-A is not limited to cover only those persons who have entered into legally valid marriage. The thrust of the offence under Section 498-A is subjecting of the woman to cruelty. He submits that in the present case the marriage itself is not proved by the prosecution even though the registered marriage took place before the Marriage Officer at Mysore.
13. Nextly, learned counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in the case of SHIVCHARAN LAL VERMA vs. STATE OF MADHYA PRADESH reported in Laws (SC) 2002-2-110 wherein it is held that Sections 306 and 498-A abetment of suicide and cruelty to married woman, conviction and sentence, its validity when marriage with the second wife is null and void having been performed during the life-time of first wife, the prosecution under Section 498-A on ground of cruelty to second wife not at all attracted. Hence, conviction and sentence passed under Section 498-A was set aside. In the case on hand also since there is subsistence of marriage : 12 : the second marriage is not a valid marriage even though the registered marriage was performed before the Marriage Officer at Mysore.
14. Placing reliance on the above-said judgments, learned counsel for the appellant submits that the above judgments are squarely applicable to the case on hand. Hence, he pleads that the appeal be allowed and by setting aside the judgment of conviction and sentence and to acquit the appellant-accused No.1 of the offences punishable under Section 498-A r/w. Section 34 of IPC and Section 4 of Dowry prohibition Act.
15. On the other hand, Sri Nasrulla Khan, learned Government Pleader for the State while controverting the submissions urged on behalf of the appellant supports the impugned judgment passed by the trial court. He has taken me through the evidence of PWs. 1 and 2 being the parents of the deceased, PW3 being the uncle of the deceased and PW4 being the relative of the deceased who is a lawyer. It is his submission that PW1 who is the father of the deceased and the complainant has stated in his evidence that his daughter Ashwini was working as a nurse in Hemavathi : 13 : Nursing Home at Hassan and she fell in love with accused No.1 Nandakumar and on 19.03.2004 she married accused No.1 before the Marriage Officer at Mysore. It is also in his evidence that the deceased had no knowledge about the accused being married to one Jayalakshmi who is accused No.2 before his marriage with the deceased. Accused No.1 and deceased were living in Hassan. But during the month of August 2004 deceased went to the house of her parents and informed them about the demand for dowry of Rs.2.00 lakhs being made by the accused Nos. 1 and 2 and PW1, with great difficulty, arranged for a sum of Rs.10,000/- and again deceased came back saying that she will not be allowed to the house until she gets Rs.2.00 lakhs. It is his submission that accused Nos. 3 and 4 came to the house of PW1 and threatened the deceased that she will not get the status of a wife and she will be only kept mistress unless she brings the dowry amount. Unable to tolerate the harassment the deceased committed suicide and therefore learned Government Pleader submits that the evidence of PW1 clearly indicates that the reason for the deceased consuming poison is the harassment meted out to her by accused Nos. 1 to 4.
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16. Learned Government Pleader also contends that even PW.2 who is the mother of deceased also given evidence supporting the evidence given by PW1 and stating that accused Nos. 1 to 4 are responsible for the death of her daughter Ashwini.
17. It is the contention of the learned Government Pleader that PW.3, who is the uncle of deceased also stated that PW1 had told him about the demand of Rs.2.00 lakhs from accused Nos. 1 and 2 and when he and PW.1 went to the house of the accused No.1 he said that he require Rs.2.00 lakhs for the purpose of making a separate house. In the evidence of PW4 who is the relative of deceased and who is also a lawyer it is stated that the deceased informed PW4 about her marriage, about the second marriage of accused No.1 and also demand for dowry of Rs.2.00 lakhs made by accused Nos. 1 and 2 and harassment meted out to her by accused Nos. 2 to 4 for bringing dowry of Rs.2.00 lakhs and due to harassment meted out to her by accused Nos. 1 to 4 deceased consumed poison and died. Hence, he submits that the trial court, on appreciation of the evidence on record in a proper perspective, has rightly convicted the : 15 : accused for the offences alleged against him and hence, he prays for dismissal of the appeal.
18. On hearing the counsel for the parties, the point that arises for consideration in this appeal is, "Whether the prosecution has established the guilt against appellant-accused No.1 for the offences punishable under Section 498-A r/w. Section 34 of IPC and Section 4 of Dowry Prohibition Act that he had meted out physical as well as mental harassment to the deceased Ashwini to bring dowry in cash from her parental house and abetting the deceased to commit suicide?
19. On hearing the contentions advanced by the learned counsel for the parties and on an evaluation of the material on record, it is to be seen that PW-1, father of the deceased is the complainant in the case who lodged complaint against the accused as per Ex.P.1. PW-2 is the mother of the deceased. PW-3 is the uncle of the deceased. PW-4 is the relative of the deceased and was a lawyer and who is the panch witness for the spot mahazar at Ex.P2. PWs.5, 8 and 12 are neighbours of PW1. PWs.6 and 7 were working with deceased Ashwini. PW9 is the panch witness for mahazar at Ex.P10. PW.10 was the doctor of Hemavathi : 16 : Nursing Home where deceased Ashwini was working as a nurse. PW.11 is the panch witness for Ex.P2. PW.13 is the panch witness for seizure mahazar at Ex.P4. PW.14 is the Police Head Constable. PW.15 is the Tahasildar, Putur. He has recorded the statements of prosecution witnesses. PW.16 is the Marriage Officer who conducted the registered marriage of deceased with accused No.1 at Mysore. He has issued marriage certificate at Ex.P3. PW.17 is the PSI, Halasoor Police Station, Bengaluru. He received the complaint from PW.1 and filed FIR. PW.18 is the Investigating Officer in part for investigation. PW.19 is the Police Inspector, C.O.D., Anti Dowry Cell, Bangalore, who laid the charge-sheet.
20. Indisputably, as per the evidence of PW-1, the marriage of his deceased daughter Ashwini took place before the Marriage Officer at Mysore. It is a registered marriage. Accused No.1 had already married accused No.2. Without the knowledge of the subsistence of the first marriage of accused No.1 with accused No.2 deceased got married accused No.1. Accused Nos. 1 and 2 demanded dowry of Rs.2.00 lakhs. Deceased went to her parental house and told her father PW.1 about the demand. PW.1 with great : 17 : difficulty arranged for Rs.10,000/- and deceased came back to her matrimonial house and gave the same to accused No.1. Not being satisfied with the same accused Nos. 1 and 2 again sent her back to her parental house. Accused No.2 told her not to come back without bringing the money of Rs.2.00 lakhs to her matrimonial house. Accused Nos. 3 and 4 who are the brothers of accused No.2 went to the parental house of deceased, threatened her and harassed her saying that she will become the kept mistress of accused No.1 and she will never be a wife of accused No.1 if she does not bring the dowry amount. They have also telephoned to her parental house and threatened to take away her life. Unable to bear the harassment meted out deceased Ashwini consumed poison and committed suicide. It is mainly accused Nos. 2 to 4 who have harassed deceased and abetted her to consume poison than accused No.1.
21. Even from the evidence of PWs. 2, 3 and 4 also there is mention about harassment meted out by accused Nos. 2 to 4 and there is no whisper about harassment meted out by accused No.1. Accused No.1 only wanted to make a separate house and hence he asked deceased Ashwini to bring Rs.2.00 lakhs from her parental house but there is no : 18 : mention about his harassment to deceased Ashwini. Hence, the same does not constitute an offence under Section 498-A IPC and Section 4 of Dowry Prohibition Act. However, the trial court, on appreciating the evidence on record had come to the conclusion that the prosecution has established the offence under Section 498-A of IPC and Section 4 of Dowry Prohibition Act.
22. On a careful scrutiny of the complaint (Ex.P.1 lodged by PW-1, the father of the deceased), it is seen that there is no whisper about harassment by accused No.1 to bring dowry. As such, there was no corroborative evidence put forth by the prosecution. The Trial Court based conviction of the accused for the offence punishable under Section 498-A of IPC solely on the ground of cruelty meted out by accused No.1 to deceased Ashwini. But the cruelty of accused No.1 was not proved by the evidence of any prosecution witnesses. All the prosecution witnesses state that harassment meted out to her by accused Nos. 2 to 4 and not accused No.1. In the absence of any material evidence on record, the trial court was not at all justified in coming to such a conclusion. The trial court has not appreciated the evidence on record in respect of these : 19 : material witnesses in a proper perspective which is clear from their respective evidences itself.
23. On re-appreciation of the entire material on record, this Court is of the considered view that the trial court has committed an error in appreciating the evidence on record in a proper perspective and the learned Judge of the trial court was not justified in convicting the accused for the offences alleged against him.
24. The judgments relied upon by the lerned counsel for the appellant squarely applies to the case on hand except the cases of REEMA AGGARWAL (supra) and KOPPISETTI SUBBHARAO ALIAS SUBRAMANIAM (supra). In the said judgments it was held that during the subsistence of first marriage, the second marriage is not a valid marriage and hence there is no husband and wife relationship. Without the existence of a valid marriage the offence under Section 498-A for cruelty cannot arise at all. The offence under Section 4 of Dowry Prohibition Act also would not arise without a valid marriage.
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25. In the instant case, the appellant-accused No.1 who married the deceased Ashwini before the Marriage Officer at Mysore. But subsequent to her marriage he demanded her to bring a money of Rs.2.00 lakhs from her parental house. Because of the demand made by the accused No. 1 as well as his first wife accused No.2, deceased Ashwini requested her father to provide money. Accordingly, her father - PW1 arranged for Rs.10,000/- and the same has been given to deceased Ashwini who in turn gave it to accused No.1. But nowhere in the evidence it is stated that accused No.1 demanded dowry, but in the evidence it is forthcoming that as accused No.1 wanted to make a separate house he asked deceased Ashwini to bring Rs.2.00 lakhs from her parents house. This fact is required to be re-appreciated in this evidence.
26. On the basis of the evidence of the material witnesses PWs. 1 to 4, accused No.1 has also been charge- sheeted for the offence punishable under Section 4 of Dowry prohibition Act. The prosecution has not established the guilt against the accused No.1 by placing concrete evidence relating to the offence under Section 4 of Dowry Prohibition Act for having demanded the dowry along with his first wife : 21 : accused No.2. The prosecution has not placed any concrete evidence relating to the harassment meted out to the deceased at the hands of accused No.1. The registered marriage between deceased and accused No.1 is not in dispute. But the harassment meted out to the deceased by her husband accused No.1 demanding dowry is not proved whereas it is accused Nos. 2 to 4 who were causing harassment to the deceased demanding dowry. But the trial court misdirected itself and charged accused No.1 for the offences punishable under Sections 498-A of IPC and Section 4 of Dowry Prohibition Act. There is perversity shown in the impugned judgment and the impugned judgment suffers from infirmities. There is found to be a camouflage and there shall be some clouds of doubt in the evidence against the accused No.1. For all these reasons the impugned judgment in S.C.No.80/2005 dated 21.06.2010 requires to be set aside and the accused No.1 deserves acquittal for the offences charged against him which is challenged in this appeal.
27. For the foregoing reasons, the point framed by this court is answered in the negative and the appeal is hereby allowed. The judgment of conviction and order of sentence : 22 : dated 21.06.2010 passed by the Presiding Officer, Fast Track Court at Chikmagalur in S.C.No.80/2005, convicting the accused-appellant herein for the offences punishable under Section 498-A IPC and Section 4 of Dowry Prohibition Act is hereby set aside. The accused-appellant is acquitted of the charges levelled against him.
The bail bond shall stand cancelled.
Sd/-
JUDGE Cm/-