Bangalore District Court
State By J vs Parikshith Nagaraj on 13 April, 2023
IP
KABC030199012019
NAIK
Digitally signed
by I P NAIK
IN THE COURT OF THE 30 ADDL.CHIEFDate:
TH
METROPOLITAN MAGISTRATE, BENGALURU2023.04.13
16:15:59 +0530
Dated: This the 13
th
day of April, 2023
:Present: Sri. I.P.Naik, B.A., LL.B.(Spl),
30th ACMM, Bengaluru
Judgment U/s.355 of Cr.P.C.
C.C.No. 6558/2019
Date of Offence 11.09.2016
Complainant State by J
.P.Nagar, Police Station
V/s.
Accused Parikshith Nagaraj,
S/o.nagaraj.D,
Aged about 36 years,
R/at.No.1121, 2nd A Cross,
19th Main Road, J.P.Nagara,
Bengaluru-78.
Offences U/s.498-A of IPC and U/s. 3 & 4 of the
DP Act.
Plea Recorded on 26.08.2019 and accused
has abjured guilty.
2 C.C.No.6558/2019
313 Statement recorded on: On 20.01.2023.
Final Oder Accused is Convicted
Date of Order 13-04-2023.
*****
JUDGMENT
The police inspector by Sri. Hitendra of Jaya Prakash Nagar police station filed final report U/Sec 172(3) Code of Criminal Procedure against accused alleged that he has committed an alleged offence punishment under section 498-A IPC and under section 3 and 4 of Dowry prohibition Act.
2] Factual matrix;
The marriage of the CW-1 by name Smt Dechamma solemnized and performed with accused on 11/09/2016 as per Hindu rite and custom at Konkan Bhavan Kalyan Mantapa, Mysore. As per earlier marriage negation and demand of accused the parents of PW-1 were given 24 grams golden chine, 8 grams golden ring to him and 300 grams golden ornaments to CW-1 in form of Dowry. Further, their marriage was performed with grand.
3] Thereafter, both accused and CW-1 commenced their matrimonial life at House bearing No 1121 situated, 2-A Cross, 19 th main, J.P.Nagar 2nd 3 C.C.No.6558/2019 phase within territorial limits of J.P.Nagar police station, Bengaluru. They have hand same salary and lead happy matrimonial life for a period of one year. Thereafter, accused started took up quarrel with CW-1 for silly reasons and abused her in filthy language and beating her. During midnight accused always chatting with other lady by neglecting CW-1. Even he was not provided medical treatment to her.
4] Further, accused insisted the CW-1 transfer the khata of site and house situated at Mysore and brings additional dowry, accused given mentally and physically cruelty to CW-1. Accused has illicit relationship with one Yashashwanigowda, both were caught ride hand by CW-1 at Emarath lodge at Madikere town. In this regard complaint lodged at women's police station, Kudagu under NCR No 21/2008 on 02/06/2018. After cancellation, accused agreed and undertook to lead batter matrimonial life with CW-1. After certain time, accused has continued his earlier habits and having relationship with his girl friend, she met with accused in weekends in his house. CW-1 unable to harassment of accused, on 29/06/2018 CW-1 has leaved her matrimonial life from accused. Therefore, accused is charge-sheeted.
PRE-CONGNIZANCE STAGE:-
4 C.C.No.6558/2019
INVESTIGATION:-
5] On 22/09/2018 CW-1 lodged first information statement before CW- 10/PI by name Sri Hitendra. Based on said statement CW-10 has register the case against accused in crime No 243/2018 and forwarded first information report to this court. On that day itself CW-10 rushed spot and drawn SO Mahazar in the presency of panchas as place shown by CW-1. Further CW-10 has deputed CW-08 and CW-09 for the purpose of search and caught hold accused. Earlier morning at 01-00am on 23/09/2018 accused produced before CW-10 and interrogated, recorded his voluntarily statement, accused produced before this court, thereafter enlarged on bail Further CW-10 has collected records pertaining NCR register at Kodagu and documents relates marriage from CW-1 and interrogated the witnesses and recorded their statement U/Sec 161. After completing other formalities CW-10 has submitted final report against accused for aforesaid alleged offences.
POST COGNIZANCE STAGE:-
6] By considering charge sheet and other material this court was taken cognizance for alleged offences and order to be register case against accused in Register-III. In pursuant summons of this court accused 5 C.C.No.6558/2019 appeared though his counsel, a copy of charge sheet and other material provided to him. Thereafter charge has been read over and explained to him. Accused has abjured the guilty and claims to be tried. Hence, prosecution called for lead evidence to prove guilt of the accused. TRAIL:-
7] In order to bring the guilty of the accused the prosecution adduced the following ocular evidence in support of its case;
Sl. Rank of witness Name of witness
No.
1. PW-1 Smt Dechamma
2. PW-2 Smt Meenakshi
3. PW-3 Miss Yashmamachamma
4. PW-4 Charan Chengappa
5. PW-5 Ayyappa
6. PW-6 Shivamumar
7. PW-7 Hitendra
8. PW-8 Smt Radha
8] The following pieces of documentary evidence placed by the prosecution in support of its case;6 C.C.No.6558/2019
Sl. Exhibits Description of
No. document
1. Ex.P.1 Complaint
2. Ex.P.2 Spot Mahazar
3. Ex.P.3 Report
4. Ex.P.4 FIR
5. Ex.P.5 Letter
6. Ex.P.6 Marriage Invitation Card
7. Ex.P.7 & 8 Photos
8. Ex.P.9 to 13 c. of the statement of
witnesses
9] After completion of ocular and documentary of the prosecution, accused examined u/sec 313 of Cr.P.C. in said examination accused has denied incriminating evidence adduced against him. Accused has not chosen adduced evidence on his behalf.
10] The following documents got marked on behalf of accused by confrontation to PW-1 during cross examination and last document got exhibit by confrontation to PW-3 of during their cross examination:-\ 7 C.C.No.6558/2019 Sl. Exhibits Description of document No.
1. Ex.D.1 to 4 CC. of the Order sheet, application, Affidavit, objections of M.C.No.51/2018
2. ExD.5 to 19 Photos
3. Ex.D.20 Letter 11] Heard arguments, on both side.
12] The following points would arise for my consideration;
(1) Whether preliminary inquiry is mandatory prior to registration of FIR in matrimonial cases more particularly an offence P/U/Sec 498-A of IPC?.
(2) Whether prosecution proves beyond reasonable doubts that, after lapse of one year from marriage, accused given mental torture and thereby accused committed an offence P/U/Sec 498-A of IPC within my cognizance?
Or 8 C.C.No.6558/2019 (2) Whether accused had illicit relationship his girlfriend YashawaniGowda? Itself amounts to mental cruelty of PW-1? (3) Whether prosecution proves beyond reasonable doubts that accused demanded and accepted dowry at the time of marriage with PW-1 and thereby accused committed an offence P/U/Sec 3 and 4 of D.P.Act within my cognizance?
(4) What order?
13] On considering ocular evidence and documentary of the prosecution, defence of the accused, his documentary evidence and hearing of the parties my answer to aforesaid points as under;
POINT No-1; In the Negative POINT No-2; In the Affirmative POINT No-3; In the Negative POINT No-4; As per final orders
-----------following REASONS 14] UNDISPUTED FACTS:-
9 C.C.No.6558/2019
i] Since 2008 i.e., prior their marriage, both accused and PW-1 were knows to each other and studies in same college.
ii] With consent and blessing of parents and elders accused and PW-1 were got married at Konkan Bhavan Vijaynagar, Mysuru on 11/09/2016.
iii] Before and after marriage, both accused and PW-1 are working in private companies.
iv] After marriage accused and PW-1 have lead their happy matrimonial life at H No 1121, 2-A cross, 9 th main road J.P.Nagar 2nd phase, Bengaluru.
v] Accused actively participated at the time cremation of mother of the PW-1 and PW-3.
vi] On 29/06/2018 PW-1 leave the house of accused and stay in her sister house.
15]ADMITTED FACTS BY PW-1 IN HER CROSS EXAMINATION:-10 C.C.No.6558/2019
i] After marriage PW-1 and accused went Thailand tour from 28/10/2016 to 01/11/2016, in this regard learned Advocate for accused confronted 15 photos which are in four sheets and got marked at Ex P-5 to 8 at the request of accused's counsel. ii] Both accused and PW-1 went Goa from 17/11/2017 and 19/11/2017, in support of this contention six photos available in two sheets, which are confronted and got marked at Ex P-9 and 10 at the request of accused's counsel.
iii] Both have visit to Goa from 18/11/2016 and 20/11/2016, in support of this contention six photos available in two sheets, which are confronted and got marked at Ex P-11 and 22 at the request of accused's counsel.
iv] Accused and PW-1 were attended Christmas party at house of accused's friend on 25/12/2017 and also attended at get-together in the house of Saikumar house on 18/07/2016, in this regard learned Advocate for accused confronted four photos and got marked at Ex P-13 to 16 at the request of accused's counsel. 11 C.C.No.6558/2019
v] Further both have participated at party of Kashyap and other friend of accused, in this regard learned Advocate for accused confronted two photos which are in four sheets and got marked at Ex P-17 and 18 at the request of accused's counsel. vi] PW-1 has filed matrimonial case for decree of Divorce on file before learned Senior Civil Judge, Veerajtepe in MC No.51/2018. in this regard learned Advocate for accused confronted certified copy of order-sheet, petition submitted by PW-1, objections filed accused, and deposition of PW-1 15 photos which are got marked at Ex P-1 to 4 at the request of accused's counsel. 16]ARGUMENTS OF PROSECUTION;
The learned senior APP argued that, PW1 is victim of this case. She categorically deposed in respect of cruelty from the accused. Further, her evidence is substantial evidence and also corroborated from evidence of PW2, PW3 and PW5. PW1 has also categorically stated regarding her sister Pw1 subjected to cruelty from her husband/accused. 17]PW4 has also supported the prosecution case. PW4 is witnesses to the SO Mahazar. He has also supported the recitals of the Ex.P.2 mahazar. 12 C.C.No.6558/2019 Further, he argued that, PW6 is independent witnesses. He has also stated in respect of the cruelty from the husband of the CW1. PW7 is investigating officer, he has deposed inrespect of further investigation conducted by him. PW6 has caught hold the accused based on the credible information at late night and produced him before the IO. 18] It is the specific case of the prosecution that, accused had extra marital relationship with one Yashaswini Gowda. This fact is elicited from the testimony of pw1 to Pw3 and PW8.
19] PW8-PSI of Womens Police Station, Kodagu. She has categorically stated that, on 02.06.2018, Pw1 and her sister brought the accused and one lady Yashaswini Gowda, who were red handed caught hold in the lodge. In this regard, she has registered the cae in NCR.No.21/2018 of Womens Police Station, Kodagu District.
20] In this case, prosecution successfully proved the guilt of the accused persons beyond reasonable doubt. Hence, prays to convict the accused in accordance with law.
ARGUMENTS OF DEFENCE:-13 C.C.No.6558/2019
21] As against this, the learned counsel for the accused urged that, int his case, there is no disputed in respect of the marriage solemnized between the accused and CW1. It is specific case against the accused that, after one year marriage, accused has neglected the PW1 and he was not joint her in the week ends and also he was not taking PW1 to tours. But this aspect is disproved by the accused by eliciting from the mouth of PW1 during her cross-examination.
22] Accused always took the PW1 to abroad tours and even outside of Karnataka State. In this regard, digital photos are got marked at Ex.D. 5 to 17, which discloses their visit to those places. Ex.D.20 is confronted to the PW3 it discloses the attitude of the accused and his relationship with PW1 as well as PW3. Initially PW1 filed dissolution of marriage by presenting petition before the learned Sr.Civil Judge, Viarjapete in M.C.No.51/2018. The accused who is respondent in the M.C.No.512018 filed objection as per Ex.D.4 to the petition filed by the PW1 and denied the entire allegations made against him and also regarding maintenance and permanent alimony. After that, Pw1 lodged this false complaint against the accused by creating imaginary story. 14 C.C.No.6558/2019 23] There is serious allegations against the accused that, he had extra marital relationship with one lady Yashaswini Gowda. PW1 and PW2 and other hae red handedly caught hold theem at Emarath Lodge, Madikeri. 24] PW1 categorically stated that, after caught hold of the accused with another lady and both of them were escorted to Madikere Town Police Station. But PW8 herself deposed that, she was incharge of the Womens Police Station, Kodagu. On 02.06.2018 Pw1 brought her husband/accused and one lady by name Yashaswini Gowda who red handed caught hold at Emarath Lodge, During cross-examination she stated that, she has not visited to Emarath Lodge, a Forest official have brought the accused and his companion to the Police Station. This itself discloses that, PW3 is also RFO in the Forest Department. She is influenced over the PW8 in creating Ex.P.9 to 17 documents. By considering all these aspects, it celery discloses tht, prosecution made false allegations against the accused. Hence, prays to acquit the accused from the alleged offence.
25] In this case, by considering the rival submissions, already excluded the undisputed facts as well admitted facts, the remaining facts is that, whether the accused has extra marital relationship with the Yashaswini 15 C.C.No.6558/2019 Gowda.? whether accused demanded dowry.? and finally whether accused neglected the PW1 in order to harass her. These 3 points are very important aspect in this case.
26] The learned counsel for accused submitted that, in the course argument and concentration on point of preliminary inquiry not hold by IO. As per endorsement of IO on Ex P-1, he has received first information statement at 06:00pm on 22/09/2018. Therefore, I have relied on judgment of Hon'ble supreme Court which is reported in {(2018) 10 SCC 443} WRIT PETITION (CIVIL) NO. 73 OF 2015 Dtd 14/09/2018 Social Action Forum for Manav Adhikar and another VERSUS Union of India Ministry of Law and Justice and others
5. On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73 of 2015 has been made to have a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC. It is worthy to note here that during the pendency of this Writ Petition, the judgment had been pronounced in Rajesh Sharma (supra). The Court in Rajesh Sharma (supra) issued the following guidelines:-
"19.i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at 16 C.C.No.6558/2019 least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.
(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/ wives of working officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.
(f) The committee may give its brief report about the factual aspects and its opinion in the matter.
(g) Till report of the committee is received, no arrest should normally be effected.
(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.
(j) The Members of the committee may be given such honorarium as may be considered viable.
(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.
ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for 17 C.C.No.6558/2019 such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;
iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
iv) If a bail application is filed with at least one clear day ‟s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day.
Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.
viii) These directions will not apply to the offences involving tangible physical injuries or death."
31. In Rajesh Sharma (supra), as is noticeable, the Court had referred to authorities in Arnesh Kumar (supra) and Lalita Kumari (supra) and observed that:-
"16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable. 11 Just and fair procedure being part of fundamental right to life,12 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a non-compoundable case of private nature, if continuing the proceedings is found to be oppressive. 13 While stifling a legitimate prosecution is 18 C.C.No.6558/2019 against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.
17. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
18. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose."
38. In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest. 27] On 14.09.2018, Hon'ble Supreme Court of India laid down certain guidelines in Rajesh Sharma is not inaccordance with law and principles laid down by the Hon'ble Apex Court in Ramesh Kumar's case (supra) and Lalitha Kumari's case, Jogindra Kumar's case and finally D.K.Basu's case.
19 C.C.No.6558/201928] In this case PW1 lodged complaint before the PW8 on 22.09.2018, after passing of the Judgment of Hon'ble Supreme Court of India in Social action form for Manav Adhikari's case (supra). Therefore, it is held that, at the time of registration of the case, in respect of the alleged offences punishable U/s.498-A of IPC preliminary inquiry is not required. Further, the order sheet and remand application discloses that, IO registered the case against the accused in Cr.No.243/2018 at 6.00pm on 22.09.2018 and accused is caught hold and arrested him at about 1.00am on 23.09.2018, immediately, after registration of the case, accused arrested after 7 hours. This aspect is not at all challenged by the accused before the Constitutional Court. Accused is produced before the Magistrate at about 7.15pm on 23.09.2018 and he was released on bail on 24.09.2018. So this aspect clearly shows that, personal liberty of the accused is protected under law.
29] PW1 stated in her cross-examination that, she was able to lead happy matrimonial life with the accused for 12 months. After that, he has started harassing her mentally and emotionally by stating in the terms cited below:-
20 C.C.No.6558/2019
" ಪ್ರತಿದಿನ ನನ್ನ ಜೊತೆಗೆ ಗಲಾಟೆ ಮಾಡುತ್ತಿದ್ದ ನನಗೆ ಬೇರೆಯವರು ವಧುವನ್ನು ಕೊಡುವವರಿದ್ದ ರು ಆ ವಧುವನ್ನು ಮದುವೆಯಾದಲ್ಲಿ ನನಗೆ ಸಾಕಷ್ಟು ಕೊಡುತ್ತಿದ್ದ ರು ಅಂತ ಹಿಯ್ಯಾಳಿಸುತ್ತಿದ್ದ , ನನ್ನ ದೇಹದ ಪ್ರತಿಯೊಂದು ಭಾಗವು ದಪ್ಪ ಇದೆ, ಬಟ್ಟೆ ಸರಿಯಾಗಿ ಹಾಕುವುದಿಲ್ಲ ಅಂತ ಹಿಯ್ಯ ಳಿಸುತ್ತಿದ್ದ "
30] PW1 further stated that, 3 times accused has insisted for mis- carriage. The parents of the accused expected grand children the said message is conveyed to the accused at that time, accused stated that, he was unable to maintain the PW1, under such circumstances, how can he maintain the child as well.
31] During cross-examination, PW1 stated that, she is not aware about the accused is nominated the PW1 in the insurance policy availed by him and in the office records. PW1 further stated that, during week ends accused not accompanied with her to outside. Whenever she tried to sit with him, at that time, he intentionally refused to be along with the PW1. Further, she stated that accused has not bring groceries and clothes to her. Further, he has not taken case when she was ill. PW1 further stated that, accused not at all informed to PW1 in respect of where he has gone for one week.
21 C.C.No.6558/201932] In the arguments canvassed by the learned counsel for the accused, upto death of the mother of the Pw1, she has not lodged any complaint due to her mother advised her to lead life with the accused. After the death of her mother, she has lodged the complaint. At this stage, I have carefully gone through the cross-examination of PW1. Her mother died after 3 months of her marriage. According to prosecution case, and admitted facts PW1 and accused have lead matrimonial life for one year. This aspect is also elicited from the mouth of PW1 by confronting the photos got marked at Ex.D.5 to P.17. This itself discloses that, accused and PW1 visited abroad like Thailand and also they have visited outside of the Karnataka State ie., Goa and also participated in the Christmas party get together parties. During their happy matrimonial life there was no disputed in respect of the matrimonial relationship between the accused and PW1. According to the admitted facts as cited above, accused always accompanied the PW1 whenever he participated in the parties and family get together, during cordinal relationship with PW1. 33] PW3 Yeshwathamma deposed in her cross-examination that she has written Ex.P.20 letter to the accused. This aspect is categorically admitted by the PW2 in her cross-examination. According to recitals of 22 C.C.No.6558/2019 the Ex.D.20, she wrote emotional letter to the accused on 20.08.2018 stating that, she was expressed her regards towards accused in respect of her rude behavior with the PW1 at the time protecting her sisters life. Further, she expressed her regard in respect of the behavior with him. By taking this contention of PW1, the learned counsel for the accused suggested that, a the time of cremation of the mother of the PW1, accused actively participated and has done the rituals as if a son. But this aspect is totally denied by the PW1 and PW3 in their cross- examination. They have specifically stated that, themselves have performed the funeral ceremony of their mother. Their father died due to COVID-19. Under such circumstances, PW1 and PW3 were not able to perform the funeral rituals of the father.
34] PW1 is cross-examined in length. She stated that, at the time of marriage, before and after her marriage, she was working at Accenture Company. She has left the said company on 2.10.2018 or on 2.10.2015. She do not remember the exact month and date during which she has left the said company. Further, she denied inr espect of the she is one of the Directors at Mind Tree Company.
23 C.C.No.6558/201935] So one thing is clear from the evidence of PW1, PW2 and Ex.P.20, it reveals that, during funeral ceremony of mother of PW1 accused actively participated. She has made specific allegations against the accused that, he has not provided groceries and clothes to her. This aspect reveals from Ex.D.2 presented before the learned Sr.Civil Judge, Virajpet in M.C.No.51/2018. Pw1 is also working women. So she is bound to contribute in respect of family maintenance.
36] PW2 stated that, accused always subjected PW1 to cruelty mentally and emotionally. Accused and his companion were caught hold red handed in the lodge at Madikere. In the Police Station conciliation was held. In the said conciliation, accused has undertaken that, he will not commit any mistake in future life and he will maintain good relationship with PW1 in future days.
37] In the cross-examination, PW2 stated that, she has not visited the lodge and Madikere and she is not eye witnesses to the incident occurred at the lodge. Therefore, all these aspects discloses that, she is deposed based on the information collected from the PW1. These aspects is also elicited from the mouth of PW1 in their cross-examination. 24 C.C.No.6558/2019 38] PW6 is another witnesses who is cousin brother of PW1 and PW3. He has also stated in respect of the accused had elicit relationship with one Lady by name Yashaswini Gowda and both were caught red handed while they were staying at Emarath Hotel, Madikere. PW1 & PW6 specifically stated that, again accused caught hold with the said lady in the house at J.P.Nagar in the month of August 2018.
during his cross-examination he stated that, at the time of marriage she was fat. The learned counsel for the accused tried to elicit from the mouth of PW1 that, PW1 was physically strong after marriage. But the said suggestions is denied by the PW3 who is sister of PW1 in her cross- examination.
39] Further, stated that, PW6 called him on 02.6.2018 at about 6.30pm to 7.00pm and explained about the accused living with one lady at J.P.Nagar, Bengaluru. Rest of the aspects of the denied by the the learned counsel by suggestions. The said suggestions are specifically and categorically denied by the PW6.
25 C.C.No.6558/201940] In this case, accused denied in respect of his suspect while recording the statement U/s.313 of Cr.P.C. But the order sheet and oral testimony of PW6 and PW7 discloses that, after registration of the case, accused arrested at night 1.00pm, on 23.09.2018. But the accused has not challenged his arrest even though after lapse of 4 years. 41] PW7 IO/PW1-PI of J.P.Nagara Police Station deposed that, he has registered the case and rushed to the spot and conducted the SO mahazar. Further, he stated that, he has recorded the statement of witnesses. During cross- examination IO the learned counsel for the accused meticulously cross-examined these witnesses by relying on the statement recorded by him. IO recently mentioned the Crime number on Ex.P.6 to 8. But it is not ground for discard the oral testimony of PW1 and other prosecution witnesses.
42] Already this court answered in respect of the holding of the preliminary inquiry prior to registration of the case U/s.498-A of IPC. During cross-examination, PW1 repeatedly stated that, already preliminary inquiry is conducted in NCR.No.21/2018 at Kodagu Womens Police Station Madikere. But as per the law down by their lordship in 26 C.C.No.6558/2019 Social Action Forum for Manav Adhikar's case (supra) preliminary inquiry is not mandtory in cases for the offence punishable u/s.498-A of IPC. 43] In this case, PW1 has lodged this complaint after accused filed objection to petition in M.C.No.51/2018 which is pending for disposal at the learned Sr.Civil judge, Virajpete. But so far as the delay is concerned, it is not ground for suspect the prosecution case. The matter should be scrutinize with judicious manner. During cross-examination, PW1 stated that, finally she decided to leave her matrimonial life with the accused on 29.6.2018, she has filed complaint before the J.P.Nagar Police Station 22.09.2018. Almost 3 months delay in lodging the complaint. But during her cross-examination, she stated that, during week ends one lady used to come to her matrimonial house & stay with accused. So by considering all these aspects I am of the opinion that, 3 months delay is not ground for creating serious doubt in the prosecution case. When Pw1 left the matrimonial house of the accused. He had continued his earlier habit of allowing the said lady in week ends.
44] The learned counsel for the accused rightly admitted that, in complaint, oral statement and mainly the documents Ex.D.2. PW1 27 C.C.No.6558/2019 repeatedly stated that, after caught hold the accused at Emarath Loge, Madikere both of them were produced before the Town Police Station Madikere. On contrary PW8 stated that, she has discharged her duty as ASI Kodagu Womens Police Station, Madikere. She has registered the case against the accused in NCR.No.21/2018, of Kodagu Womens Police Station, Madikere. Further, it reveals that, during inquiry PW8 not visited the spot. According to her evidence, accused and his girl friend are escorted by the Police Officials. Admittedly, PW1 wrongly mentioned the Police Station name. Further, as per Section 91 of the Evidence act, oral evidence of PW1 and PW3 are excluded and relie don the Ex..11 and P.12. According to Ex.P.11 one Smt. Yashwini Gowda, D/o.Chandrashekara Gowda given statement before the PW8 at Kodagu Womens Police Station, Madikere and as per Ex.P.11 accused has given statement before the PW9 at Kodagu Womens Police Station Madikere. These documents discloses that, accused and his girl friend have admitted their relationship. Further, accused has given false information in respect of he was going to Udupi and when PW1 and PW3 who is her sister followed them, they have went to Madikere.
28 C.C.No.6558/201945] During arguments stated learned Sr.APP has relied on the Judgment of Hon'ble Apex Court as under:-
AIR 1988 SCC 2154 State of U.p Vs. Krishna Gopa and Anr.
2002(1) Cri.309 Gamanath Patruap Vs. State of Orissa.
AIR 1994 SC 1418 State of West Bengal Vs. Ori lal Jaishwal & Anr.
AIR 2013 SC 3209 Vajresh Venkat Rai Anwekar Vs. State of Karnataka Judgment of Hon'ble High Court of Karnataka rendered in State Vs. Murthy @ pungi.
46] In these Judgments their lordships opined that, husband being social responsible person, he has to discharge his matrimonial duty. He if has an elicit relationship with another lady this itself effects on the psychological imbalance on the victim of the wife. Recently, Hon'ble 29 C.C.No.6558/2019 Supreme Court of India held in Joseph Shine Vs. Union of India [AIR 2018 SC 9898] held that, if spouse has an physical relationship with consent of another person it does not amounts to adultery. Annalysing the principles laid down by their lordship and extra marital relationship with another person, spouse must fulfill the desires of the companion.
No one can commit emotional or mental torture to another person.
Statement of such person alone, based for substantial evidence of cruelty. PW1 stated that, whenever she tried to sit with the accused, he has avoid the same and further stated that, she does not have any dressing sense and she has a fat body. Further, without having good relationship with the PW1, he had elicit relationship with another lady and picked her up. It is main basic reason for difference of opinion arisen between the accused and PW1.
47] In this case, during trial PW1 repeatedly stated that, accused without having any remedy, she has left her matrimonial house. But during cross-examination, PW3 deposed in following terms.:-
"---"30 C.C.No.6558/2019
48] By considering the oral testimony of PW3 and letter written to accused which is got marked at Ex.D.20, accused had good relationship with PW1 and PW3. Up-n she left the house he started involving with the other lady in extra marital affair and committed mistake. 49] In this case, prosecution has taken contention that, accused demanded dowry. But except the say of the oral testimony, there is no substantive evidence to prove that accused demanded dowry. PW1 categorically stated that, without informing to her her husband has left the house and did not return for a week.
50] In this case, after arrest of the accused, Iphone of the accused is taken by the PW1. This aspect is not disputed by the Pw1 in her cross- examination. She stated tht, accused was remanded to JC. Therefore, she has taken and retained the Iphone6 mobile.
51] The learned counsel for the accused has taken the contention that, PW1 Has taken the contact numbers from the mobile of the accused and sent vulgar messages to his friends. This suggestions is categorically denied by the PW1 in her cross-examination. Rest of the aspects are 31 C.C.No.6558/2019 denied by the learned counsel for the accused by suggestions. The said suggestions re denied by the PW!.
52] Further, the learned counsel for the accused specifically stated that, accused never insisted for mis carriage and not insisted the PW1 to take tablets for mis carriage. These suggestions is denied. Admittedly, after examination of PW1 the learned Sr.APP has filed an application U/s.323of Cr.P.C seeking for transfer of this case, to the Sessions Court for the trial of the offence punishable U/s.313 of IPC. The said application is ended in dismissal on merits, as per the order dated 05.03.2021.
53] In this case, by considering the entire oral testimony of PW1, it reveals that, she has red handedly caught hold the accused and his girl friend, at Emarath Hotel at Madikere. During inquiry at Polie Station, Madikere, accused undertook not to continue his extra marital affair with the said lady. Inspite of that, he has continued the relationship with the lady by name Yashaswini Gowda. By considering all these aspects, this aspect alone is sufficient to prove the guilt of the accused persons for causing mental cruelty to PW1. Therefore, it is held that prosecution 32 C.C.No.6558/2019 successfully proved the guilt of the accused person for the offence punishable U/s.498-A of IPC, accordingly, Point NO.2 is answered in the Affirmative. Further, prosecution utterly failed to prove the guilt of the accused persons beyond reasonable doubt for the offence punishable U/s.3 & 4 of the DP Act and preliminary enquiry is not mandatory. Accordingly, Point No1 & 3 are answered in the Negative.
54. Point No.4: For going reasons, I proceed to pass the following:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused is acquitted of the alleged offences punishable U/s.3 & 4 of the DP Act.
In this case, prosecution proved the guilt of the accused person U/s.498-A of IPC. Hence, case is posted for Hear on Sentence or Applicability of the P.O Act.
(Dictated to the Stenographer and after corrections made by me and then pronounced by me in the Open Court on this the 13 th day of April, 2023).
(I.P Naik.) 30 A.C.M.M., B'lore.
th 33 C.C.No.6558/2019 Orders on sentence:-
The learned counsel for the accused urged to extend the benefit under the P.O Act, as he is sole earner of his family.
I have gone through the entire records, both accused and PW1 studied in the same college, both are class mates before marriage and they are well known to each other with the consent of their L.R's they have got married. Inspite of that, he had extra marital relationship with another lady. Under such circumstances, accused is no entitled to get benefit under the P.O Act., and it requires to impose proper sentence. Accused is 26 years old guy, if sentence with higher punishment, it may impact on his personal life and also impact on his parents. By considering the interest of the victim as well as the accused and the parents of the accused, it is fit case to impose proper sentence. Hence, proceed to pass the following..., ORDER The Powers confirmed upon me U/s.248(2) of Cr.P.C. accused is convicted for the offence punishable U/s.498-A of IPC and he shall undergo S.I for 6 months and shall pay fine of Rs.5,000/-. In default of payment of the fine amount, he shall undergo S.I for 30 days.
Bail bond executed by the accused is hereby cancelled. By considering the qualification and occupation of the PW1, compensation is not awarded.
Office is hereby directed to supply free copy of the Judgment.
(I.P.Naik) 30 th Addl.C.M.M., B'lore.34 C.C.No.6558/2019