Karnataka High Court
Smt Akkamahadevi @ Meena vs V R Sureshababu on 2 December, 2020
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL No.45/2011
BETWEEN:
SMT. AKKAMAHADEVI @ MEENA
W/O. V.R. SURESH BABU
AGED ABOUT 45 YEARS,
TEACHER,
R/AT No.478, 2ND MAIN ROAD,
SHARADADEVI NAGAR,
MYSURU-23. ... APPELLANT
(BY SRI PRABHUGOUD B. TUMBIGI, ADVOCATE - AMICUS CURIAE)
AND:
1. V.R. SURESHABABU
AGED ABOUT 30 YEARS
S/O. LATE.RAMADAS
2. RAMESH BABU
AGED ABOUT 30 YEARS
S/O LATE.RAMADAS
3. RATHNAKUMARI
AGED ABOUT 53 YEARS
W/O T.P. RAMDAS
RESPONDENTS No. 1 TO 3 ARE
RESIDING AT OPP. TO KUCHHALAMMA TEMPLE,
2
G.P. MALAPPA PURAM,
KOLLEGAL,
CHAMARAJANAGAR DISTRICT.
4. BHAGYAMMA @ VASANTHAKUMARI
AGED ABOUT 42 YEARS
W/O NAGARAJU
5. S. NAGARAJU
AGED ABOUT 46 YEARS
S/O LATE. SIDDIAH
RESPONDENTS No.4 AND 5 ARE
RESIDING AT D NO.16,
1ST CROSS, N.G.O'S COLONY
RAJENDRA NAGAR,
MYSURU CITY.
6. NINGARAJU @ ANILKUMAR
AGED ABOUT 30 YEARS
S/O MARILINGAIAH
RESIDING AT DOOR NO.697/13
DOUBLE ROAD
KUKKARAHALLI
MYSURU.
7. P.R. LATHA @ ASHALATHA
AGED ABOUT 27 YEARS
W/O VIJAYKUMAR
RESIDING AT D NO.1/331
OPP: VEDAN HOSPITAL
BENGALURU ROAD
G.P. MALLAPPAPURAM
KOLLEGAL.
8. VIJKAYKUMAR
AGED 32 YEARS
S/O LATE. SIDDAIAH
WARDEN B.A. AND P.U.C.
3
BOYS HOSTEL, HANUR HOBLI,
KOLLEGALA TALUK,
CHAMARAJANAGAR DISTRICT.
9. STATE BY MAHILA POLICE
MYSURU
MYSURU DISTRICT. ... RESPONDENTS
(BY SRI. K.A. CHANDRASHEKAR, ADVOCATE FOR R1 TO R8
SRI. DIWAKAR MADDUR, HCGP FOR R9)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
CR.P.C PRAYING THIS COURT TO SET ASIDE THE ORDER DATED
20.09.2010 PASSED BY THE IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, MYSURU IN S.C.NO.265/2006 - ACQUITTING
THE RESPONDENTS/ ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 498-A, 506, 313 READ WITH SECTION 34 OF
IPC AND SECTION 4 OF D.P. ACT READ WITH SECTION 34 OF
IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel appearing for the appellant, learned counsel appearing for respondent Nos.1 to 8 and learned High Court Government Pleader appearing for respondent No.9/State.
2. This appeal is filed challenging the judgment of acquittal dated 20.09.2010 passed in S.C.No.265/2006 on the file of IV Additional District & Sessions Judge at Mysuru. 4
3. The parties are referred to as per their original rankings before the Trial Court in order to avoid the confusion and for the convenience of the Court.
4. The factual matrix of the case is that on 21.12.2003, complainant, Smt. Akkamahadevi @ Meena married with accused No.1-V.R. Suresh Babu at Uthanahalli Shree Jwalamukhi Thripurasundari Devi Ammanavara Temple. The complainant - Akkamahadevi was working as a teacher at K.R. Nagar, Mysuru. Accused No.1 was having no job and nobody attended the marriage from the side of accused No.1. Both of them have led happy married life for a period of six months. Later on, she came to know that the accused was having illicit relationship with one
- Shivakshi, aged about 45 years. Hence, he was ill-treating her and subjected the complainant to cruelty and demanding money. The complainant - Akkamahadevi due to un-tolerable cruelty subjected by accused No.1, she had paid the amount of Rs.2,00,000/- to him. Accused No.1 again demanded money for his job and she paid an amount of Rs.50,000/-. Accused No.1 was not making payment regarding house hold expenses. That 5 on 13.06.2014, when Akkamahadevi, along with her mother Hombalamma were in the house, accused No.1 as well as accused Nos.2 to 8 came to her house. They enquired the complainant as to have you married with accused No.1 and have you given a car and also enquired whether she is having any house and asked her to bring all the materials or otherwise, they are going to teach her a lesson with rowdy elements and took accused No.1 from the house. The accused persons have also subjected her for both mental and physical cruelty. The complainant is pregnant. Accused No.1 kicked on her stomach; as a result, it leads to abortion. Based on the complaint, police have registered a case and investigated the matter and filed the charge sheet for the offences punishable under Sections 498-A, 506, 313 read with Section 34 of IPC and Section 4 of the Dowry Prohibition Act, 1961 ('DP Act' for short).
5. The accused persons were secured and they did not plead guilty and claimed the trial. The prosecution in order to prove the case, examined P.Ws.1 to 7 and got marked the documents as Exs.P1 to 7, 7(a) to (c). 313 statement of the 6 accused was recorded. Accused along with 313 statement, placed some documents and did not choose to lead any evidence.
6. The Trial Court after considering both oral and documentary evidence acquitted the accused for the charges leveled against them. Hence, the present appeal is filed before this Court.
7. In the appeal, the main contention is taken by the complainant is that, in spite of sufficient proof has been placed before the Trial Court for the marriage i.e., Ex.P2 - Wedding Invitation Card and also photographs, P.Ws.1, 3 and 4 spoken with regard to the marriage and subjecting her for cruelty and the Trial Judge did not consider the same. The Trial Judge also not considered Ex.P5 - case sheets with regard to the abortion and also he has given the consent letter in the hospital and failed to consider the same. It is also contended that the Trial Judge has erred in dis-believing both oral and documentary evidence particularly the evidence of P.W.2 - Doctor and erroneously come to the conclusion that the child born was a 7 pre-matured child and not born due to the torture. The very approach of the Trial Court is erroneous. It is also contended that P.W.7, an independent witness, who is running an organization known as 'Samatha Vedike' and her evidence is clear that the accused gave an undertaking in terms of Ex.P7 and inspite of the same, the Trial Judge has committed an error in acquitting the accused.
8. The learned counsel appearing for the appellant/complainant would reiterate the grounds urged in the appeal and also would contend that the evidence of P.Ws.1 to 7 are consistent to each other and particularly, Ex.P5-case sheet discloses the baby was aborted on account of the assault made by accused No.1 and others.
9. The learned counsel would submit that Ex.P7 is the undertaking given by the accused before the police at the instance of the organization of P.W.7. The learned counsel would submit that the evidence of P.Ws.1 to 7 prove the factum of marriage between the complainant and the accused and in spite of the same the Trial Judge has made an observation that the 8 marriage has not been proved and also inspite of the documentary evidence - Exs.P5 and P7 erroneously come to the conclusion that the prosecution failed to prove the case against the accused persons. Hence, it requires an interference of this Court.
10. Learned counsel appearing for respondent Nos.1 to 8 would submit that merely producing of photographs cannot be a proof for marriage and though the complainant claims that the marriage was taken at Uthanahalli Shree Jwalamukhi Thripurasundari Devi Ammanavara Temple, the priest has not been examined. Accused No.1 in his 313 statement, produced the document as issued by the temple stating that no marriage was taken place between the complainant and accused. Apart from that, the other documents are placed before the Court that the mother of the complainant herself gave the complaint against the complainant making the allegation of un-chastity. The evidence which has been placed before the Court also not corroborates anything about treating her with cruelty and also there is no material that the accused had kicked the stomach of 9 the complainant and no incriminating material before the Court, as a result, the abortion was taken place.
11. In order to invoke Section 4 of the DP Act also, there is no material before the Court. The Trial Judge considering the evidence of P.Ws.1 to 7 rightly acquitted the accused. Hence, there are no grounds to reverse the findings of the Trial Court.
12. The learned High Court Government Pleader appearing for respondent No.9/State would submit that Ex.P5, discloses that, accused No.1 only took the injured to the hospital and he has signed the consent letter for treating the complainant and he only took the baby which was aborted and the material placed before the Trial Judge is enough to reverse the findings of the Trial Court. Hence, the learned High Court Government Pleader prays this Court to reverse the findings of the Trial Court.
13. Having heard the arguments of the respective counsel and also the grounds urged in the appeal memo and the material available on record, this Court has to re-appreciate the 10 same and after re-appreciating, the question would arise for consideration of this Court are:
(1) Whether the Trial Judge has committed an error in acquitting the accused persons for the offences punishable under Sections 498-A, 506, 313 read with Section 34 of IPC and Section 4 of the DP Act?
(2) What order?
Point Nos.(1) and (2):
14. Having heard the respective counsel and also the grounds urged in the appeal this Court has to re-appreciate the material available on record. Before appreciating the oral and documentary evidence, this Court would like to refer to the contents of the complaint. On perusal of Ex.P1-complaint of P.W.1, she has stated that the marriage was taken place on 21.12.2003 at Uthanahalli Shree Jwalamukhi Thripurasundari Devi Ammanavara Temple and they lived together happily for a period of six months. In the month of June, the family members of accused No.1 came and made galata and threatened her life 11 and also robbed an amount of Rs.50,000/- kept in the almirah and also threatened that the rowdies will take away the life of her family members and took her husband from the house. Thereafter, rowdies came and threatened frequently. It is also her statement that she gave the complaint to the 'Samatha Vedike' and he gave an undertaking before the Police at the instance of P.W.7-organization. Thereafter also, they continued the harassment. It is also alleged in the complaint that accused No. 1was having illicit relationship with the lady-Shivakshi, who is aged about 45 years and he continued the harassment. It is also the allegation that they demanded an amount of Rs.10 lakhs and also Car and continued the harassment. That on 24.08.2004, accused No.1 took her to unknown place and thereafter took her to Sharadadevi Nagara. Accused Nos.4, 8 and 1 abused her and assaulted her and insisted her to transfer all the amount to the account of accused No.1 and even though she was pregnant of 8½ months pulled her and kicked her on her stomach, as a result, she was taken to Kamakshi Hospital and the baby was aborted.
12
15. It is also her allegation in the complaint that she gave an amount of Rs.1,00,000/- and again Rs.50,000/- each twice and when the harassment did not stop, she gave complaint to the Women Police Station. It is also her allegation that she was confined in a room for a period of 4 months and hence, she could not attend her job and they caused legal notice to her family members as they also subjected to harassment and humiliation. Now as this Court has to re-appreciate the evidence available on record would like to sum up the evidence of prosecution.
16. P.W.1 reiterated the allegation made in the complaint-Ex.P1 in her evidence before the Trial Court. P.W.1 was subjected to cross-examination. In the cross-examination, it is elicited that she was engaged with one Shivanna earlier and it got cancelled later. Thereafter, she came in contact with this accused. P.W.1 admits that she sent a letter dated 02.02.2005 to Women Police Inspector enclosing photographs and also stating about robbing of an amount of Rs.50,000/- from her. The names of the witnesses are also mentioned in the letter. The 13 police did not register the case. It is also elicited that she gave one more complaint on 02.09.2004 and for having lodged the complaint, the police have not issued any acknowledgment. It is also elicited in the cross-examination that the other accused persons are residing in different places at Rajendra Nagar, Kesare and she did not disclose the addresses of these accused persons in the complaint. It is suggested that her mother had lodged the complaint against her and the same was denied. It is suggested that in Shree Jwalamukhi Tripurasundari Devi Ammanavara Temple, no marriage would be performed, but she claims that her marriage performed in the said temple is true. It is suggested that before coming to the Kamakshi Hospital, she had been to Annapoorna Nursing Home where she took treatment for her stomach pain and the said suggestion was denied. However, she claims that she was visiting Annapoorna Nursing Home regularly for her pregnancy on monthly check up.
17. In her further examination-in-chief, the document at Ex.P7 was marked. In the further cross-examination, she admits that Ex.P7 was given in police station and also admits that there 14 is no mention in Ex.P7 that the same was written in the police station. It is also admitted that Inspector-Rajanna has not signed Ex.P7. It is suggested that Ex.P7 is created for the purpose of this case and the same is denied.
18. P.W.2 is the doctor, who treated P.W.1. She says that they obtained consent letter from accused No.1 and also produced the case sheet at Ex.P5. She claims that accused No.1 had signed the consent letter and also Ex.P5. P.W.2 further says that the baby born was a girl child and actually it had died in the womb itself. P.W.2 further says that the victim was 34 weeks pregnant and if any person has fisted or kicked to her stomach, there are chances of the baby dying in the womb itself. In the cross-examination, it is elicited that when she examined her, she found accidental hemorrhage. It is elicited that P.W.1 has not signed Ex.P5 in her presence. The baby was handed over to accused No.1 by the hospital nurse and she did not hand over the baby to accused No.1 and that accused No.1 has not signed in her presence. It is also elicited that they have not received any case sheet from Annapoorna Nursing Home. P.W.2 also 15 admits that they were forced to deliver the premature baby since placenta was separated due to bleeding in the uterus.
19. P.W.3 is the School teacher, who in his evidence says that he came to know through P.W.1 that she was subjected to both mental and physical harassment by the accused and about the abortion. In the cross-examination, he admits that on 25.08.2004, the mother of P.W.1 had informed the School Principal that the baby in the womb of P.W.1 got aborted.
20. P.W.4 is also the School Teacher. He deposed that he came to know through P.W.1 that accused subjected her to both mental and physical cruelty. In the cross-examination, he admits that he did not see the accused No.1 dropping P.W.1 to school but volunteers that prior to the marriage he was dropping her to school on the scooter. P.W.4 also admits that he did not witness P.W.1 and accused No.1 staying together.
21. P.W.5 is the mother of P.W.1 and in her evidence, she reiterates the evidence of P.W.1. In the cross-examination, 16 it is elicited that P.W.1 is her elder daughter and she is working since last 10 to 15 years and residing at K.R.Nagar. It is also her evidence that before she was residing at K.R.Nagar, she used to travel from Mysuru to K.R.Nagar. It is suggested that in the year 1991, she gave complaint against P.W.1 and her husband and the same was denied. But she claims that she gave complaint only against her husband. It is suggested that she gave complaint against P.W.1 and also against her husband alleging that both of them were earning money illegally and also taken away the moveable properties worth to the tune of Rs.91,000/- from her house and the said suggestion was denied.
22. P.W.5 also deposed with regard to the earlier engagement of P.W.1 with one Shivanna and cancellation of marriage. It is elicited that at the time of accused No.1 signing the documents in the hospital, none was present. It is suggested that she is falsely deposing that accused No.1 and other accused persons subjected P.W.1 for both physical and mental cruelty and the same is denied.
17
23. P.W.6 is the Investigating Officer, who received the complaint, registered the case, sent the FIR to the Court and also recorded the statement of the witnesses. She was subjected to cross-examination. In the cross-examination, she admits that she did not collect any document in respect of performing the marriage at Shree Jwalamukhi Thripurasundari Devi Ammanavara Temple and also not got confirmed as to whether the marriage had taken place at the said temple. She also admits that she did not collect the negatives from P.W.1 and that the photographs might have been collected. She further volunteers that P.W.1 had informed her that there were no negatives. She also admits that she did not enquire in the hospital as to how long P.W.1 was inpatient at Kamakshi Hospital, but she claims that she verified the documents. However, she admits that prior to visiting Kamakshi Hospital, P.W.1 had gone to Annapoorna Nursing Home.
24. P.W.7, who is running 'Samatha Vedike', in her evidence, deposed that P.W.1 gave complaint against her husband and tried to secure him, but could not succeed. She 18 also requested the jurisdictional police to assist her and accordingly, accused No.1 was secured to police station wherein he gave undertaking in terms of Ex.P7 before the police. In the cross-examination, it is elicited that P.W.1 was working as a Government School Teacher. It is also elicited that she neither enquired her colleagues nor aware of the school name. It is suggested that Ex.P7 is created and the same is denied.
25. Having perused both oral and documentary evidence placed on record, this Court has to re-appreciate the materials available on record. Before re-appreciating the same, this Court would like to refer to the penal provisions invoked against the accused persons i.e., Sections 498A, 506, 313 read with Section 34 of IPC and Section 4 of Dowry Prohibition Act. It is the claim of P.W.1 that her marriage was solemnized in the month of 21.12.2003 at Uthanahalli Shree Jwalamukhi Thripurasundari Devi Ammanavara Temple. The accused disputed the very said marriage itself. However, he relied upon Ex.P2-the wedding card, Ex.P3 and Ex.P4-photographs and also Ex.P5-Case sheet. 19
26. On perusal of photographs and also Ex.P2-wedding card, the same got printed by the accused himself. Photographs which are marked as Ex.P3 and Ex.P4 disclose that the complainant and accused No.1 took the photos. It is to be noted that the Investigating Officer in her evidence admits that she did not collect the negatives since P.W.1 had informed that there are no negatives. On perusal of Ex.P5-Kamakshi Hospital case sheet, a reference has been made to the effect that the patient was referred from Annapoorna Nursing Home with history of abdomen pain and FHS not located. The patient had been advised admission since last week and thereafter, it is referred that the patient had received one does of T.T., patient had vomiting at 3.30 a.m. and sent to Annapoorna Nursing Home as the patient is drowsy.
27. On perusal of Ex.P5, there is no history of assault made by the accused. Though the complainant contends that accused persons took her to lonely place and kicked and fisted on her stomach and there is no mention of the same and also there is no documentary proof to show that they assaulted 20 P.W.1. It is also important to note that Ex.P5 discloses that the patient was referred from Annapoorna Nursing Home. However, the prosecution did not place any material to show that P.W.1 was shifted to Annapoorna Nursing Home and also that there is no mention of any history being stated before the Annapoorneshwari Nursing Home about assaulting the complainant-P.W.1. There is no any evidence except oral evidence of P.Ws.1 and 5 with regard to subjecting her for assault by the accused. It is also the case of the complainant that all these accused persons went to her house, assaulted her family members and threatened them in their house. In order to substantiate the said explanation, none of the witnesses have been examined before the Trial Court. There is no any evidence with regard to the causing of threat to complainant and their family members by the accused. Except the self serving statement of P.Ws.1 and 5, on perusal of complaint, there is no allegation with regard to demand of dowry prior to the marriage. It is only the allegation in the complaint that the accused subsequently demanded for money and she paid the money of Rs.1,00,000/- and Rs.50,000/- each twice. In order to 21 substantiate the same, except the self serving testimony of P.W.1, no other witness have been examined before the Trial Court. In order to invoke Section 4 of Dowry Prohibition Act, there is no any material before the Court, though the charge sheet has been filed against the accused persons for the offences punishable under Sections 498A, 506, 313 read with Section 34 of IPC and 4 of Dowry Prohibition Act read with Section 34 of IPC. Thus, the material placed before the Court does not inspire the confidence of the Court.
28. No doubt, P.W.2 says in her evidence that if any persons kicks on the stomach, there are chances of abortion, but in the case on hand, the history mentioned in Ex.P5 states that P.W.1 was admitted with complaint of pain in abdomen but there is no history of assault. Evidence of P.W.2 is only hypothesis and the same is not supported by any material. No doubt, P.W.7, who has been examined before the Court claims that P.W.1 gave complaint to 'Samatha Vedike' and tried to secure the accused No.1, but could not succeed. Thereafter, taking the assistance of the Inspector-Rajanna, accused No.1 was secured and obtained 22 his undertaking in terms of Ex.P7. The accused No.1 did dispute the document at Ex.P7. On perusal of Ex.P7, an undertaking letter was given by the accused and his signature is identified as Ex.P7(b). The signature found on Ex.P7 and also the signature found on Ex.P5 are not similar. The accused have disputed these documents. The accused also gave his explanation in 313 statement that no marriage was performed in the temple and also produced the document issued by the temple. He also states that earlier a complaint was lodged by his mother against P.W.1.
29. Having taken note of the explanation offered by the accused No.1 and also on perusal of the material available on record, the prosecution has failed to prove the charges leveled against the accused persons and bring home their guilt. I do not find any error committed by the Trial Court in appreciating the evidence on record in coming to the conclusion that the prosecution has not proved the charges leveled against the accused persons. In order to reverse the findings of the Trial Court, there must be perversity in appreciating the evidence and if any glaring error is find while appreciating the evidence, then 23 only the Appellate Court could reverse the order of acquittal. In the absence of the said perversity and glaring error on the part of the Trial Court while appreciating the evidence, this Court cannot exercise its appellate jurisdiction to reverse the findings. Hence, there is no merit in the appeal to reverse the findings of the Trial Court.
30. In view of the above discussion, I pass the following:
ORDER The appeal is dismissed.
The Registry is directed to pay the honorarium of Rs.3,000/- (Rupees Three Thousand Only) to the amicus curiae for assisting the Court.
Sd/-
JUDGE cp*/PYR