Karnataka High Court
Nagendra vs The State Of Karnataka on 23 January, 2024
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NC: 2024:KHC:3220
CRL.RP No. 1165 of 2015
C/W CRL.RP No. 1166 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 1165 OF 2015
C/W
CRIMINAL REVISION PETITION NO. 1166 OF 2015
IN CRL. RP.1165/2015
BETWEEN:
1. NAGENDRA,
S/O MAHADEVAPPA,
AGED ABOUT 32 YEARS,
2. B.MAHADEVAPPA,
S/O BHOGAPPA,
AGED ABOUT 64 YEARS,
BOTH ARE AGRICULTURISTS,
AND RESIDENTS OF
DEEPAK THOTADHA MANE,
Digitally signed
by SANDHYA S
BN ROAD, GUNDULPET TALUK,
Location: High CHAMARAJANAGARA DISTRICT-571123.
Court of
Karnataka ...PETITIONERS
(BY SRI. CHANDRASHEKARA K A., ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY THE POLICE OF
GUNDULPET POLICE STATION,
CHAMARAJANAGARA DISTRICT-571123.
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
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NC: 2024:KHC:3220
CRL.RP No. 1165 of 2015
C/W CRL.RP No. 1166 of 2015
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
DATED 21.11.2006 AND 21.01.2011 PASSED BY THE CIVIL
JUDGE (JR.DN.) AND JMFC, GUNDLUPET IN C.C.NO.658/2004
AND DISMISSAL OF THE APPEAL IN CRL.A.NO.4/2011 BY THE
PRL. DIST. AND S.J., CHAMARAJANAGARA BY THE JUDGMENT
AND ORDER DATED 18.09.2015 FOR THE OFFENCE P/U/S
498-A OF IPC AND SEC. 3 & 4 OF D.P. ACT AND TO ACQUIT
THEM.
IN CRL. RP.1166/2015
BETWEEN:
1. NAGENDRA
S/O MAHADEVAPPA,
AGED ABOUT 32 YEARS,
2. B.MAHADEVAPPA,
S/O BHOGAPPA,
AGED ABOUT 64 YEARS,
BOTH ARE AGRICULTURISTS
AND RESIDENTS OF
DEEPAK THOTADHA MANE,
BN ROAD, GUNDULPET TALUK,
CHAMARAJANAGARA DISTRICT-571123.
...PETITIONERS
(BY SRI. CHANDRASHEKARA K.A., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY THE POLICE OF
GUNDULPET POLICE STATION,
CHAMARAJANAGARA DISTRICT-571123
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
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NC: 2024:KHC:3220
CRL.RP No. 1165 of 2015
C/W CRL.RP No. 1166 of 2015
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
DATED 18.09.2015 IN CRL.A.NO.9/2011 PASSED BY THE PRL.
DIST. AND S.J., CHAMARAJANAGARA, FOR THE OFFENCE P/U/S
3 OF D.P. ACT AND TO ACQUIT THEM.
THESE PETITIONS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The revision petitioner Nos.1 and 3 have preferred these revision petitions against the judgment of conviction and order of sentence dated 21.11.2006 passed in C.C.No.658/04 by the Civil Judge (Jr.Dn.) and JMFC, Gundlupet, (hereinafter referred to as 'Trial Court' for short) which is confirmed by the judgment dated 18.09.2015 passed in Criminal Appeal Nos.4/2011 and 9/2011 by the Court of Principal District and Session Judge, Chamarajanagara (hereinafter referred to as 'Appellate Court' for short).
2. Criminal Appeal No.4/2011 is filed by the revision petitioner Nos.1 and 3 against the judgment of conviction and order of sentence passed by the Trial Court -4- NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 and Criminal Appeal No.9/2011 is filed by the State seeking enhancement of sentence passed by the Trial Court.
3. For the sake of convenience, the parties in this revision petitions are referred to as per their status and rank before the Trial Court.
4. Brief facts of the case of prosecution is that the accused No.1 being the husband of CW.1/PW.1 Suma married on 05.12.2003 at Chennamallipura. Since then, the accused No.1 along with accused Nos.2 and 3 subjected the CW.1/Pw.1 subjected to cruelty and harassment (both physical and mental) with a view to cohere her to meet her unlawful demand of dowry in cash from her parents house thereby committed an offence punishable under Section 498A of Indian Penal Code r/w Sections 3 and 4 of Dowry Prohibition Act.
5. After taking cognizance, the Trial Court has registered the case in C.C.No.658/2004 and summons -5- NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 were issued to the accused. In pursuance of summons, the accused have appeared before the Court and enlarged on bail. Charge framed and read over and explained to the accused. Having understood the same accused pleaded not guilty and claimed to be tried.
6. To prove the case of prosecution, 7 witnesses were examined as PWs.1 to 7 and 6 documents were got marked as Exs.P1 to P6 and no material objects were marked. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. was recorded. The accused have totally denied all incriminating evidence found against them and the accused in their defence, have examined the witness as DW.1. During the course of cross examination of PW5, Ex.D1 was marked. On hearing the arguments, the Trial Court has convicted the accused Nos.1 to 3 for the commission of offences punishable under Section 498A r/w 34 of IPC and Sections 3 and 4 of D.P Act and the case was forwarded to the Chief Judicial -6- NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 Magistrate, Chamarajanagara under section 325 of Cr.P.C for awarding sentence in accordance with law.
7. Learned Chief Judicial Magistrate, Chamarajanagar has passed order on 22.12.2010 and remand the matter to the learned Civil Judge (Jr.Dn.) and JMFC, Gundlupet to pass sentence in accordance with law. After remanding the case, DW.2 has adduced his evidence and thereafter the Trial Court has convicted the accused Nos. 1, 2 and 3 for the commission of offences punishable under Section 498A r/w 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act and sentenced accused Nos.1 to 3 to undergo simple imprisonment for a term of 1 year and pay a fine of Rs.2,000/- each for the commission of offences punishable under section 498A of IPC and in default of payment of fine, accused Nos.1 to 3 shall undergo simple imprisonment for a term of 3 months. Further, the accused Nos.1 to 3 shall undergo simple imprisonment for a term of 1 year and pay fine amount of Rs.3,000/- each for offences punishable under Section 4 of -7- NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 Dowry Prohibition Act. In default of payment of fine, the accused Nos. 1 to 3 shall undergo simple imprisonment for a term of 3 months and the accused Nos. 1 to 3 shall undergo simple imprisonment for 3 years and pay fine amount of Rs.15,000/- each for offences punishable under Section 3 of Dowry Prohibition Act. In default of payment of fine amount, the accused Nos. 1 to 3 shall undergo simple imprisonment for a term 1 year.
8. Being aggrieved by this judgment of conviction and order of sentence passed by the Trial Court, accused Nos.1 to 3 have preferred the appeal in Criminal Appeal No.4/2011 dated 18.09.2015 and the State has also preferred an appeal for enhancement of imprisonment in Criminal Appeal No.9/2011 before the Principal District and Session Judge, Chamarajanagara. It is submitted that accused No.2, Sushilamma has passed away on 18.02.2011 during the pendency of the appeal. The Appellate Court has passed a common judgment in Criminal Appeal No.4/2011 as well as Criminal Appeal -8- NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 No.9/2011. In view of this, the Appellate Court has dismissed the appeal filed by the revision petitioners and allowed the appeal filed by the State in part. Consequently, the judgment of conviction and order of sentence passed by the Trial Court in C.C.No.658/2004 dated 21.11.2006 was confirmed. Accused Nos.1 to 3 are directed to undergo simple imprisonment of 5 yeas and to pay a fine of Rs.15,000/-. In default of payment of fine amount, the accused Nos.1 to 3 shall undergo simple imprisonment for a term of 1 year for commission of offences punishable under Section 3 of Dowry Prohibition Act and remaining all sentences remained intact. Being aggrieved by this judgment passed by the Appellate Court, the revision petitioner Nos.1 and 3 have filed this revision petition.
9. Learned counsel for the revision petitioner submits that both the Courts have committed an error in convicting the accused and passed sentence. Both the Courts have failed to notice the ingredients of offences -9- NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 under Section 498A read with 34 of Indian Penal Code and Section 3 and 4 of Dowry Prohibition Act. The learned Magistrate as well as the Appellate Court have not appreciated the evidence on record in accordance with law and facts.
10. This alleged incident took place on 08.07.2004 at 10.00 A.M. The case came to be registered as per Ex.P1 on 25.07.2004 at 12.30 noon, that there is abnormal delay in filing the compliant and same is not explained by the prosecution. That there is no specific evidence as to the demand made by the accused.
11. Further, it is submitted that after conviction, the learned Civil Judge (Jr.Dn.) and JMFC, Gundlupet has referred the case under section 325 of Cr.P.C. to the Chief Judicial Magistrate, Chamarajanagar to impose appropriate sentence in accordance with law. During the pendency of case before the Senior Civil Judge and CJM, Chamarajanagara in CC No.87/2007, both complainant as well as accused have filed application under section 320(5)
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NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 of Cr.P.C. to permit the complainant/victim to compound the offence and another application was also filed under Section 320(8) of Cr.P.C to acquit the accused since the complainant and accused have settled the matter. As per compromise petition, the accused No.1 has paid an amount of Rs.75,000/- to the complainant. Further, it is submitted that before passing the sentence by the Trial Court, the complainant passed away on 30.03.2009. The learned Chief Judicial Magistrate, Chamarajanagar has dismissed the compromise petition filed by the complainant and accused on 29.05.2010 on the grounds that the alleged commission of offence under section 498A is not compoundable.
12. The accused has not challenged the order before this Court due to lack of knowledge. Since the complainant passed away, they have not urged the same before the Appellate Court. Since the matter was settled between the parties during the pendency of the case before the Chief Judicial Magistrate, Chamarajanagar invoking the
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NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 provisions of section 482 of Cr.P.C., this Court can acquit the accused on the basis of compromise petition. Even on merits also, the prosecution has failed to prove the guilt of accused beyond all reasonable doubts. On all these grounds he sought to allow this revision petition.
13. As against this, learned High Court Government Pleader has submitted his arguments that the Trial Court has appreciated the records in accordance with law and facts and passed the sentence. After re-appreciating the evidence on record, the Appellate Court has confirmed the conviction passed by the Trial Court and also enhanced the sentence passed by the Trial Court in accordance with law and facts and that there are no grounds to interfere with the judgment passed by both the Courts. On this ground, he sought to dismiss the revision petition.
14. Having heard the arguments on both sides, the following points would arise for my consideration:
i. Whether the revision petitioner has made out the ground to interfere with the impugned judgment of conviction and
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NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 order of sentence passed by the Trial Court and which is confirmed by the Appellate Court by enhancing the sentence passed by the Trial Court? ii. What order?
15. My answer to the above points are as under:
Point No.1: In affirmative Point No.2: as per final order.
Regarding point No.1:
16. I have carefully examined the material placed before this Court. It is the case of prosecution that the accused Nagendra, husband of PW.1-Suma married her on 05.12.2003 at Kandegal Parvathi Betta in Shindinapura.
Since then, the accused No.1 along with accused Nos.2 and 3 subjected PW.1 to cruelty and harassment (both physical and mental) to pressurize her to meet their unlawful dowry from her parents house. Thus, the accused have committed offence punishable under Section 498A and Sections 3 and 4 of Dowry Prohibition Act.
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17. To prove the guilt of the accused 7 witnesses were examined as PWs.1 to 7 and 6 documents got marked as Exs.P1 to P6. A perusal of Ex.P1- complaint which reveals that the alleged incident took place prior to 15 days from the date of filing the complaint and the exact date is not disclosed either in the complaint or in the evidence of PW.1. The wound certificate at Ex.P5 reveals that the complainant has taken treatment with a history of injury caused to her right palm by her husband about 15 days back. The doctor has opined in the wound certificate that the injuries are simple in nature and PW.1 has sustained injury i.e. the old scar mark over the right palm measuring 1 1/2 inch over the right palm region.
18. PW.1 - Suma has not whispered anything as to the delay in taking treatment by the doctor. Ex.P5 does not reveal the name of other accused. Only for the purpose of filing the complaint, the complainant has taken treatment in the hospital and obtained wound certificate as per Ex.P5.
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19. PW.6 - Dr. Dhananjaya has deposed in his evidence that prior to this treatment, the injured has taken treatment. In the evidence of PW.1, she deposed that she has not taken any treatment for her burnt injuries to her right palm. If really she has sustained with burnt injuries, she could have taken treatment for the same and file complaint against accused for alleged commission of offence. But till 15 days, she has not taken any legal action against the accused. The prosecution has not explained anything as to the delay in filing this complaint which creates reasonable doubt as to testimony of PW.1.
20. With regard to demand of dowry is concerned, PW.2 - Mahadevamma, mother of PW.1 has stated that accused No.1 has received 10gms gold chain and cloth in the form of dowry without any demand. But in the evidence of PW.1, she has stated that only on demand, they have given 10 gms gold chain as dowry which is not consistent with the contents of Ex.P1 - complaint.
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21. PW.3 - Srinivas, father of PW.1 has clearly admitted in his evidence that one gold chain, one gold ring, one watch and cloth to accused No.1 as a custom and not as a dowry.
22. A careful scrutiny of the entire evidence of prosecution witnesses, I do not find any cogent, corroborative, believable and trustworthy evidence. Both the Courts have failed to appreciate the evidence on record in accordance with law and facts.
23. Apart from this, a perusal of the applications filed under Section 320(5) of Cr.P.C. and under Section 320(8) of Cr.P.C. by both the parties which on 18.12.2008 before the Civil Judge (Sr.Dn) and CJM, Chamarajanagar, it is noticed that both the parties have voluntarily filed these applications to compound the offence and also to accept the compromise arrived between PW.1 and accused No.1 in Criminal Misc.No.43/2007. The said applications were rejected by the said learned Chief Judicial Magistrate, Chamarajanagar on the ground that the alleged offence
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NC: 2024:KHC:3220 CRL.RP No. 1165 of 2015 C/W CRL.RP No. 1166 of 2015 punishable under Section 498A is not compoundable. The signature of PW.1- Suma on the compromise petition is not disputed by the prosecution. It is an undisputed fact that in view of compromise arrived between the parties, the complainant has received an amount of Rs.75,000/-. During the pendency of the appeal, accused No.2 passed away and the same was not brought to the notice of the Appellate Court without providing any opportunity to the accused, the Appellate Court has enhanced the sentence passed by the Trial Court which is contrary to the provisions of Section 386 of Cr.P.C. It is not in dispute that PW.1 has passed away on 30.3.2009.
24. Considering all these aspects, I am of the considered opinion that the judgment of conviction and order of sentence passed by the Trial Court which is confirmed by the Appellate Court by enhancing the sentence passed by the Trial Court are not sustainable under law. Hence, I answer point No.1 in affirmative. Regarding point No.2:
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25. For the aforesaid reasons and discussions, I proceed to pass the following:
ORDER
1. Criminal Revision Petitions are allowed;
2. Judgment of conviction and order on sentence dated 21.11.2006 passed in C.C.No.658/2004 by the Court of the Civil Judge (Jr.Dn.) and JMFC, Gundlupet which is confirmed by the judgment dated 18.09.2015 passed in Criminal Appeal Nos.4/2011 and 9/2011 by the Court of the Prl. District and Sessions Judge, Chamarajanagar are set aside;
3. Accused Nos.1 and 3 are acquitted for the commission of offence punishable under Section 498A read with Section 34 of Indian Penal Code and Section 3 and 4 of Dowry Prohibition Act;
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4. The fine amount, if any, deposited by the accused shall be refunded to the accused in accordance with law;
5. Registry to send the Trial Court records along with the copy of this order to the concerned courts.
Sd/-
JUDGE SSD,THM List No.: 1 Sl No.: 20