Karnataka High Court
Smt Komala vs Sri Ameth Achar on 6 July, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL APPEAL No.1225/2012
BETWEEN:
Smt. Komala
W/o Ameth Achar
Aged about 28 years
R/at No.40 Sy No.14/1
Bank Colony
Subramanyapura Main Road
Bangalore - 61. ...APPELLANT
(By Sri R.P.Chandrashekar, Adv. for
Sri C.H.Hanumantharaya, Adv.)
AND:
1. Sri Ameth Achar
S/o B.Venkataramana Achar
Aged about 29 years
2. Sri Venkataramana Achar
S/o B.S. Achar
Aged about 62 years
3. Smt.Nirmala Achar
W/o Venkataramana Achar
Aged about 55 years
2
All are r/at No.298
"SOWJANYA", 4th Main
ISRO Layout
Bangalore - 78.
4. The State of Karnataka
By Subramanyapura Police Station
Bangalore City
Rep. by SPP
Bangalore City. ...RESPONDENTS
(By Sri S.Yathiraj, Adv. for R1 to R3;
Sri Vijayakumar Majage, Addl. SPP for R4)
This Criminal Appeal is filed under Section 378 r/w
372 Cr.P.C., praying to set aside the judgment of acquittal
dated 31.07.2012 passed by the Presiding Officer, Fast Track
Court-VI, Bangalore in S.C. No.196/2009 - acquitting the
respondent/accused for the offences p/u/s 511, 313, 315,
498A r/w 34 of IPC and Sections 3 & 4 of D.P. Act.
This Criminal Appeal coming on for hearing, this day,
BUDIHAL R.B. J., delivered the following:-
JUDGMENT
This appeal is preferred by the complainant being aggrieved by the judgment and order of acquittal dated 31.7.2012 passed by the City Fast Track (Sessions) Judge, Bengaluru City, (FTC No.VI) in S.C No.196/2009 wherein accused No.1 to 3 are acquitted of the charges leveled against them for the offences punishable under 3 Sections 313, 315, 498A read with Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act.
2. Brief facts of the case of complainant as per the private complaint filed under Section 200 of Cr.P.C. before the trial Court are that respondent No.1-accused No.1 and the complainant got married on 18.11.2005 as per Hindu customs at Anusuya Convention Hall situated at Banashankari III Stage. As per the talks held, the complainant side performed the marriage, wherein accused No.1-respondent No.1 was given 12 gms of gold ring, 18 gms. gold chain, a wrist watch, clothes, cash of Rs.3.00 lakhs and 1½ kg of silver items, clothes to accused Nos.2 and 3, all of which were given as dowry. The complainant was given two gold necklace, two gold long chains, three gold bangles, four gold ear studs. The complainant side spent about Rs.10.00 lakhs and performed the marriage. Thereafter, when P.W.1 and complainant went to the house of the 4 respondent and was living there, respondent Nos.2 and 3-accused Nos.2 and 3, who are the parents of accused No.1 abused the complainant by uttering abusive language touching her caste that she belongs to inferior caste and they were made to have food with her. They held her in contempt because of her caste. Accused No.1 forced and demanded Rs.1.00 lakh cash from the complainant to go to honeymoon. Thus, he got Rs.1.00 lakhs cash from the parents of the complainant. But he did not take the complainant to honeymoon, but he spent all the money for himself. After coming to know that the complainant is carrying the pregnancy, the accused took the complainant to the doctor and took her signature on the consent form forcibly and attempted to commit abortion on her. This was done against the wish of the complainant and did not yield to her resistance. Respondents-accused Nos.1 to 3, after seeing the complainant carrying the pregnancy, abused her saying that if she did not get it aborted, she had to 5 take leave for six months from work and during that period, the burden of expenses will be on respondent No.1-accused No.1. Abusing thus, they used violence on the stomach of the complainant with their hands and legs. They restrained her in a bed room and threatened her by showing the sickle, pointing it to her neck. They abused by asking her to die and that they would look after her brother and sister. This they did even without giving the proper food and further threatened her not to inform the police. They got Rs.9.00 lakhs from the complainant side by demanding to repay the debt and even forced her to sell the apartment which was in the name of the complainant and to give cash to them. It is further stated in the complaint that during the time of delivery, the accused did not co-operate with the complainant. After the delivery, they did not take her to their home. To take her home, the accused again demand dowry of Rs.20.00 lakhs and registration of a site to the name of accused No.1. Thus, the 6 respondents-accused persons individually and together harassed and tortured the complainant both physically and mentally. With these allegations, the complaint came to be filed.
The matter was referred to the police for investigation. The investigation officer filed the charge sheet against accused Nos.1 to 3 for the offences punishable under Sections 313, 315, 324, 386, 498A, 506B read with Section 120B of IPC and also Sections 3 and 4 of Dowry Prohibition Act.
After hearing both sides, the learned Fast Track Court Judge prepared the charge against respondents- accused for the said offences. When the charge was read over and explained to the accused, they pleaded not guilty and claimed to be tried. Hence, the matter was set down for trial.
3. In order to prove its case, the prosecution, in all, examined 7 witnesses and got marked 21 7 documents and also 14 material objects. The accused were examined under Section 313 of Cr.P.C. and their statement came to be recorded. The incriminating material was read over to them by framing the questionnaire and their answers were recorded in their respective statements.
On the side of the defence, no witnesses were examined, but the documents at Exs.D.1 to D.6 got marked.
4. After hearing the arguments on both sides, ultimately, the learned Fast Track Court Judge, acquitted the accused holding that the prosecution has failed to prove its case beyond all reasonable doubt.
5. Being aggrieved by the judgment and order of acquittal passed by the learned Fast Track Court Judge, the complainant is before this Court in this appeal challenging the legality and correctness of the said order 8 on the grounds as mentioned at ground Nos.I to IX of the appeal memorandum.
6. We heard the arguments of learned Counsel appearing for the appellant-complainant and also the learned counsel for the respondent Nos.1 to 3/accused Nos.1 to 3 and learned Additional SPP for respondent No.4.
7. Learned counsel for the appellant -
complainant submitted that the judgment and order of acquittal passed by the learned Fast Track Court Judge is opposed to law and facts of the case. All the prosecution witnesses have consistently deposed and supported the case of prosecution corroborating the averments made in the complaint. The learned counsel submitted that looking to the oral evidence of P.Ws.1 to 3, there is consistency in their evidence and it is in corroboration with the allegations made in the complaint. The learned counsel submitted that 9 regarding the demand for more dowry amount, the complainant was subjected to ill treatment and harassment and the accused used to abuse her in the filthy language and even they used to assault her. There was ill treatment and harassment, both physically and mentally, to the complainant. The learned counsel also submitted that looking to the evidence of the doctor and the complainant, it clearly goes to show that the complainant was forced to get the abortion done. This fact is not at all taken into consideration by the learned Fast Track Court Judge while passing the impugned order. The learned counsel further submitted that the evidence of P.W.4 clearly goes to show about the drawing up of the mahazar under Ex.P.11 and seizure of the articles which were given to the accused at the time of the marriage. He further submitted that the doctor deposed on oath before the Court stating that accused No.1 was forcing the complainant for abortion. In spite of that, the learned Fast Track Court Judge 10 recorded acquittal of the accused persons. Drawing the attention of this Court to the paper book and referring to the evidence of the prosecution witnesses and also the documents produced in the case, the learned counsel submitted that the judgment and order of acquittal passed by the learned Fast Track Court Judge is not in accordance with the materials placed on record and therefore, the said judgment and order of acquittal is not sustainable in law. Hence, the learned counsel submitted that as the complainant side made out the case in respect of all the charges framed against the respondents- accused, the appeal be allowed and the judgment and order of acquittal be set aside and all the respondents- accused be convicted for the said offences.
In support of his contentions, learned counsel for the appellant complainant has relied upon the following decisions:
(i) Pratibha -vs- Rameshwari Devi and Others reported in (2007) 12 SCC 369
(ii) Hasi Mohan Barman and Another -vs- State of Assam and Another reported in (2008) 1 SCC 184 11
(iii) Alka Sharma -vs- State reported in LAWS (DLH) 2006 4 163
(iv) B.S.Joshi and others -vs- State of Haryana and another reported in 2003 Crl.L.J. 2028
8. Per contra, learned counsel appearing for the respondents Nos.1 to 3-accused Nos.1 to 3 submitted that perusing the prosecution material, it is clear that the learned Fast Track Court Judge has appreciated both oral and documentary evidence properly and he has rightly came to the conclusion in holding that the prosecution has failed to prove its case beyond all reasonable doubt. Hence, it is submitted that no illegality has been committed nor any perverse or capricious view has been taken by the learned Fast Track Court Judge in coming to such conclusion. The learned counsel further submitted that there is no merit in the appeal and the same is liable to be dismissed.
9. Learned Additional SPP for respondent No.4- State submitted that he will leave the matter to the Court to pass appropriate orders.
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10. We have perused the grounds urged in the memorandum of appeal, the judgment and order of acquittal passed by the Court below, oral evidence of P.Ws.1 to 7 and the documents at Exs.P.1 to P.21 and Exs.D.1 to D.6 and also considered the oral submissions made by the learned counsel on both sides at the Bar and the decisions relied upon by the advocates appearing for the appellant-complainant.
11. The main contention of the complainant as per the complaint averments is that the accused were giving ill treatment and harassment insisting her to bring the additional dowry amount from her parental place.
12. Let us examine the oral evidence of the witnesses, in this regard -
P.W.1-complainant has deposed in her examination in chief that before the marriage, there were marriage talks and in the said talks, the accused 13 told that the parents of the complainant to bear the marriage expenses and the parents of the complainant should give Rs.3.00 lakhs dowry, watch, ring, silver articles and clothes. Accordingly, 20 days earlier to the marriage, her father gave Rs.3.00 lakhs as dowry and on the date of the marriage, the said articles were also given. After the marriage, the complainant had been to her husband's house to lead the marital life at ISRO layout. Herself and all the three accused were residing together. The complainant belongs to Vakkaliga community and the accused belongs to Brahmin community. They used to abuse her that she belongs to Shudra community and they insisted her to bring the amount from her parental place for honeymoon purpose. Two months after the marriage, the complainant was carrying the pregnancy. When she told the accused persons, they in turn told that they do not want the child and asked to abort it. The complainant insisted that she wants child. Even then 14 forcibly, the accused took her to Cauvery clinic and forcibly obtained her signature to the effect that she is agreeable for the abortion. As she informed the doctor that she wants the child, the doctor told that she will not abort the child. Thereafter, the accused made an attempt to put the tablets having the effect of abortion and they put the said tablets into her mouth but she spit the said tablets. The accused persons were not giving the proper food and clothing to her. They were kicking on the stomach and holding the sickle to her neck and threatening her to get abortion. There afterwards, she was taken to her parental place P.W.1-complainant denied the suggestion that she refused the letter sent by the accused. When the postal cover was shown to the witness, she admitted that the address on the said cover and also her residential address are one and the same. It was marked by the Court below as per Ex.D.1. P.W.1 denied the suggestion that though the accused requested her father to send 15 P.W.1 to lead the life, in spite of it, her father did not send her. She has also denied the suggestion that the accused sent the notice dated 18.9.2007 through the advocate. But she admitted the suggestion as true that accused No.1 filed the M.C. petition No.1667/2007 seeking dissolution of the marriage and that it was still pending. She denied the further suggestion that accused have not at all demanded the site and cash of Rs.20.00 lakhs. She denied further suggestion that accused never abused her stating that she belongs to scheduled caste nor they have given any ill treatment. She also denied the further suggestion that she is deposing before the Court for the first time in respect of the demand for Rs.20.00 lakhs and the site.
13. P.W.2 one Seetharamaiah has deposed in his evidence that the complainant is his eldest daughter and she studied MBA and working as the Manager in HP company. The complainant (P.W.1) told before him 16 that accused No.1 was telling that he was loving her and asking her to marry him. The complainant and accused No.1 were meeting each other when they were going to computer class. The father of accused No.1 phoned him stating that his son and the complainant are loving each other and requested him to agree for the marriage, otherwise his son will not survive. P.W.2 further submitted that engagement talks were held on 16.9.2005, the accused demanded Rs.3.00 lakhs dowry, clothes, silver articles, ring and watch. In the month of October, he gave Rs.3.00 lakhs cash, silver articles, clothes and ring to the accused. Two months after the marriage, he came to know that his daughter is carrying pregnancy and she told that accused are telling that they do not want the child so early and insisting her to get aborted and she was taken to Cauvery clinic and they made an attempt for abortion. P.W.2 has also deposed that his daughter (complainant) told the doctor that she wants the child and she is not interested for 17 abortion. The doctor also told that she is not willing to abort the child. PW2 also deposed that the accused were assaulting the complainant by kicking on her stomach and they were not providing proper food and giving ill treatment to his daughter and insisting her to pay an amount of Rs.9.00 lakhs dowry. It is further deposed by P.W.2 that after the delivery, himself, his wife, the complainant and the child went to the house of the accused to leave the complainant and the child in their house. At that time, the accused persons told that if PW2 pay Rs.20.00 lakhs and one site, then only they will allow her in their house.
In the cross examination, P.W.2 has deposed that he is working as attender in the bank. His salary is Rs.10,000/- per month which is just sufficient to manage the family. He has deposed that he is getting the rental amount. He has not maintained the income tax statement. He has denied the suggestion that he is deposing falsely that by spending Rs.10.00 lakhs, he 18 performed the marriage of the complainant with accused No.1. He also denied the further suggestion that he is falsely deposing that accused demanded Rs.1.00 lakh to go to honeymoon. He deposed that he does not know about the attempt made by the accused persons on P.W.1 for abortion. He denied the suggestion that accused not demanded Rs.9.00 lakhs and he has also not given Rs.9.00 lakhs. He denied the suggestion that accused not demanded Rs.20.00 lakhs and the site. In the Woman Police Station, the matter was compromised and it is true that both were advised and the document Ex.D.4 was marked in that regard. P.W.2 has not stated before the police as per Ex.D.6 that the accused asked his daughter as to whether she has brought Rs.3.00 lakhs.
14. P.W.3-Sannananjappa has deposed in his evidence that after the marriage, he came to know that the complainant was carrying two months pregnancy 19 and she told before him that accused are insisting her to get aborted the child as they do not want the child so early. P.W.3 denied the suggestion that the accused have not at all demanded the dowry amount of Rs.9.00 lakhs.
15. P.W.4-G. Hemanthkumar has deposed in his evidence that on 7.11.2007, police called him to the house of accused and Ramesh was also with him. At that time, the accused took out silver plate, panchapatre, uddarane, one gold chain, gold ring, and a watch from the almirah and gave them to the police. Those articles were given to accused by the complainant at the time of marriage and in that connection, mahazar was conducted under Ex.P.11 and he signed on the said mahazar.
In the cross examination, P.W.4 has deposed that the police have not issued any notice to him to come to the house of accused. P.W.2 came to his house and 20 took him to the house of the accused as they are his family friends. He does not have the personal knowledge about giving up those articles to the accused at the time of marriage. He denied the suggestion that he had not been to the house of the accused and no articles were seized in his presence.
16. P.W.5 Dr. Meena has deposed in her evidence that since 7-8 years, she is serving in Sridevi Nursing Home and Maharaja Agrasena Hospital. On 24.12.2005, P.W.1 Komala and accused No.1 came to her hospital for examination. P.W.1 was pregnant. At that time, accused No.1 told her that they do not want the child and asked the doctor to abort the pregnancy. But P.W.1 told for continuing the pregnancy. In spite of her protest and though she was not agreeable, the accused wrote the letter and obtained the signature of P.W.1. For that, P.W.5 told that it is against law and she will not abort the child and sent them back. He took 21 back the said letter. In the further examination in chief, P.W.5 has deposed that she herself issued Ex.P.10, it bears her signature as Ex.P.10(a). When police asked her, she gave Ex.P.10.
In the cross examination, P.W.5 has deposed that she is not the family doctor of P.W.1. But number of times, she gave treatment to the family members of PW1. Before coming to her hospital, The complainant and accused No.1 had not contacted her. She has further deposed that by examining P.W.1, she has not given any documents to the police about P.W.1 carrying the pregnancy. She gave prescription to P.W.1. She gave Ex.P.10 in the year 2007. She admitted the suggestion as true that the name of their hospital is not mentioned on Ex.P.10. She also admitted the suggestion as true that the date of P.W.1 going to her hospital is not mentioned in Ex.P.10. She has not maintained any documents about the complainant and accused No.1 coming to her hospital. She admitted the 22 suggestion as true that there was no obstacle for her to mention the date of P.W.1 and accused No.1 visiting her hospital. She also admitted the suggestion as true that there was no difficulty for her to issue the letter Ex.P.10 on the letter head.
17. P.W.6-Suresh has deposed in his evidence that on 7.11.2007, himself and C.W.11 were deputed to apprehend the accused. Accordingly, they went to the house of accused Nos.1 and 2 and brought to the police station and produced and they submitted the report as per Ex.P.11.
18. P.W.7-the investigation officer has deposed in detail about the investigation he has conducted in the matter. In the cross examination, P.W.7 has denied the suggestion that though there is no prima facie case against the accused, he filed false charge sheet against them.
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19. Looking to the evidence of P.W.5-doctor, it clearly goes to show that for the purpose of this case, the document Ex.P.10 got created by the complainant in collusion with the doctor and the police. P.W.5 has clearly admitted that Ex.P.10 was not on the letter head of the hospital and there was no hurdle for her to issue Ex.P.10 on the letter head and even the date on which P.W.1 and accused No.1 went to her hospital for the alleged abortion is also not mentioned in Ex.P.10. She has deposed that accused No.1 and P.W.1 went to her hospital in the year 2005 and Ex.P.10 was issued in the year 2007 after the lapse of two years. It is her deposition that she has not maintained any records about P.W.1 and accused No.1 going to her hospital. Therefore, the document Ex.P.10 cannot be relied upon by the Court.
In the private complaint, it is mentioned that the complainant was taken to Cauvery clinic by the accused for abortion. But P.W.5-doctor, who is examined in the 24 case is from Sridevi Nursing Home and Maharaja Agrasena Hospital. Therefore, they are not one and the same. P.W.5 has not deposed in her evidence that at any time, she worked in Cauvery clinic. It is also not her evidence that Sridevi Nursing Home and Maharaja Agrasena Hospital are also called by the name Cauvery clinic. Hence, the evidence of P.W.5 and Ex.P.10 will not inspire confidence of this Court.
20. Even with regard to the payment of the dowry amount of Rs.3.00 lakhs, at the first instance and Rs.1.00 lakh, at the second instance, for going to honeymoon and subsequently, Rs.9.00 lakhs as additional dowry, except oral say, there is nothing on record to show the payment of the said amount. The accused have seriously challenged the said allegation and contended that they never demanded any such dowry amount. Apart from that, the father of the complainant (P.W.2) has admitted in his oral evidence 25 that he is serving as an attender in the bank getting the salary of Rs.10,000/- per month and it will be just sufficient for the maintenance of his family. When that is so, P.W.2 has to place some material to show the source of income for payment of Rs.3.00 lakhs, Rs.1.00 lakh and Rs.9.00 lakhs as deposed in the evidence. Therefore, these aspects were properly considered and appreciated by the learned City Fast Track Judge while passing the impugned judgment.
21. We have also perused the decisions relied upon by the learned Counsel for the appellant- complainant which are referred above. Looking to the evidence placed on record in this case, we are of the opinion that those decisions are not helpful and will not come to the aid and assistance of the complainant's case. We do not find any illegality in the judgment of the Court below. There are no valid and justifiable grounds made out by the appellant-complainant for this 26 Court to interfere with the judgment of the Court below. Hence, the appeal is dismissed as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE Cs/-