Karnataka High Court
Smt. Mahadevi @ Megha Shailendra Patil vs Shailendra Babagouda Patil on 13 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 1705, 2021 (1) AKR 78
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.2883/2011
BETWEEN:
SMT. MAHADEVI @ MEGHA SHAILENDRA PATIL,
AGE 34 YEARS,
OCC: GOVERNMENT SERVANT,
R/O. KURANKAR CHAL, HOUSE NO.C-3,
SANKESHWAR, TALUK : HUKKERI,
DIST. BELGAUM.
...APPELLANT
(BY SRI. S.A.SANDUR, ADVOCATE
FOR SRI. M.V.HIREMATH & SRI. JAGADISH PATIL, ADVOCATES)
AND:
1. SHAILENDRA BABAGOUDA PATIL,
AGE 39 YEARS, OCC: PRIVATE SERVICE,
R/O. SANKESHWAR, TAL : HUKKERI,
DIST. BELGAUM.
2. BABAGOUDOA RUDRAGOUDA PATIL,
AGE 79 YEARS, OCC: RETIRED TEACHER,
R/O. SANKESHWAR, TALUK: HUKKERI,
DIST. BELGAUM.
3. SMT. KAMALADEVI BABAGOUDA PATIL,
AGE 60 YEARS, OCC: HOUSEHOLD WORK,
R/O. SANKESHWAR, TALUK: HUKKERI,
DIST. BELGAUM.
4. THE STATE OF KARNATAKA,
BY S.P.P.,
2
HIGH COURT OF KARNATAKA,
DHARWAD
...RESPONDENTS
(BY SRI. SRINAND A. PACHHAPURE, ADV. FOR R1 TO R3;
SRI. PRAVEEN K. UPPAR, HCGP FOR R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
OF Cr.P.C. SEEKING TO CALL FOR THE RECORDS IN
C.C.NO.74/2008 ON THE FILE OF JMFC, SANKESHWAR AND
FURTHER SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 23.06.2011 AND CONVICT THE
RESPONDENTS FOR THE OFFENCES PUNISHABLE UNDER
SECTION 498-A, 506 R/W. SECTION 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the Judgment and Order of acquittal dated 23.06.2011 passed in C.C.No.74/2008 on the file of the JMFC Court, Sankeshwar, for the offences punishable under Sections 498-A, 506 r/w. Section 34 of IPC.
2. The factual matrix of the case is that, PW-1 Mahadevi @ Megha Shailendra Patil is the wife of accused No.1. Accused Nos.2 and 3 are the parents of the accused No.1. It is the case of the prosecution that, at the time of marriage, accused No.1 was working in 3 Vishwanath Sugar factory as Assistant Engineer. In the beginning of her marriage they were living cordial and thereafter accused Nos.2 and 3 started ill-treating her, saying that she is having dark complexion and insisting her to get the money from her parents house. PW-1 also got TVS victor to her husband by availing loan and in spite of it, harassment has been continued. In the meanwhile, she became pregnant and gave birth to a child. Thereafter also harassment was continued and they demanded an amount of Rs.5 lakh to construct the house and also subjected to assault. The same was informed to her father. Her father came and advised accused Nos.2 and 3 through panchas to look after his daughter properly and both of them have agreed, but after one or two weeks, again they started ill-treating. PW-1 and accused Nos.2 and 3 tried to keep accused No.1 away from her. They were telling that if she bring the money everything will be alright, otherwise, they are going to burn her. It is also contended that, the demand 4 of Rs.5 lakh was continued and ultimately she was thrown out from the house and hence, the complaint was lodged on 31.08.2007. Based on the complaint, police have registered the case in Crime No.179/2007 for the offences punishable under Sections 498-A, 506 r/w. Section 34 of IPC. The police have also investigated the matter and filed the charge sheet including the offence punishable under Section 4 of Dowry Prohibition Act ('D.P. Act' for short). The accused persons were secured before the Trial Court and they did not plead guilty and claims to be tried. Hence, the prosecution examined PWs.1 to 6 and got marked Ex.P-1 to P5. After the closure of evidence the accused was subjected to 313 Statement and thereafter the Trial Judge after considering both oral and documentary evidence, acquitted the accused. Hence, the present appeal is filed before this Court.
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3. In the appeal it is contended that, the Trial Judge has committed an error in acquitting the accused and not properly appreciated the evidence of PWs.1 and 4 who speaks about the contents of the averments made in the complaint and also harassment meted out to the PW-1. It is also contended that, PW-2 has stated in his evidence that, when he had been to the house of the accused for the purpose of spot panchanama, the accused persons were demanding money of Rs.5 lakh and he witnessed the demand of the said amount. The Trial Court failed to appreciate the evidence of PW-1, particularly with regard to the harassment and cruelty and hence, it requires interference of this Court.
4. The counsel appearing for the appellant in his arguments, he vehemently contended that, PW-1 and 4 are the victim and mother of the victim and their evidence is consistent and corroborates and PW-2 also who is the mediator of the marriage also deposed that in 6 his presence only they have demanded an amount of Rs.5 lakh and when these evidences are available before the Trial Court, the Trial Court has committed an error in not appreciating the evidence properly.
5. Per contra, the counsel appearing for the respondent/accused would contend that, the allegation made in the complaint remains as allegation. The first accused who is the husband of PW-1 himself has given the complaint to Mahila Kendra and PW-1 though denies the same, but admits in the cross-examination that a notice was given from Mahila Kendra. It is also elicited that PW-1 was not ready to live with accused Nos.2 and 3 and it is emerged in the evidence that she was not willing to join the accused No.1 and accused No1 has made all his efforts to bring her back, but PW-1 did not turn up. The allegation is that they have demanded Rs.5 lakh for the purpose of construction of house, but house was already constructed and there 7 was no such occasion warranted to demand the money of Rs.5 lakh. The Trial Judge by considering the entire material available on record and also taking note of the conduct has rightly acquitted the accused. He also contended that, the divorce petition was filed and the divorce was also granted. The counsel also contends that, the cruelty has been defined and the allegations made in the complaint do not attract Section 498A also and hence, there are no reasons to reverse the findings.
6. The counsel appearing for the State would contend that, the evidence available before the Court particularly the evidence of PWs.1 and 4 and also the PW-2 supports the case of the prosecution and though there was a delay in lodging the complaint, but their evidence is consistent. The counsel appearing for the appellant in his reply argument, he would contend that Part-B of 498 Section discloses the wilful conduct of the parties and specific allegation was made in the 8 complaint and evidence adduced by the prosecution corroborates the contents of the complaint and hence it cannot be held that Section 498-A does not attracts.
7. Having heard the arguments of the appellant's counsel and also the counsels appearing for the respondents and in keeping the contentions of both the counsels, the points that arise for consideration of this Court are:
(a) Whether the trial Court has committed an error in acquitting the accused for the offence punishable under Sections 498-A, 506 read with Section 34 of IPC and Section 4 of D.P. Act.
(b) What order?
8. This is an appeal against the order of acquittal. This Court is the First Appellate Court and hence, this Court has to re-appreciate the evidence available on record and whether the trial Court has committed an error in appreciating the evidence available on record. It is also important to note that 9 while reversing the finding of the trial Court, the First Appellate Court has to come to a definite conclusion that if it is not reversed it would amount to miscarriage of justice. If the material on record is not appreciated in a right perspective, within the scope and ambit of the First Appellate Court this Court has to consider the evidence available on record.
9. On perusal of the evidence of PW.1, who is the complainant, in her chief evidence she reiterated the averments of the complaint which is marked as Ex.P.1. In her chief evidence mainly she says that the accused Nos.2 and 3 have started the harassment on the ground that her colour is black and thereafter insisted to purchase the motorcycle and the same was purchased by availing loan. It is also her evidence that after purchasing the bike they were cordial for some time and in the meanwhile, she became pregnant and thereafter continued the harassment and she has purchased the 10 scooty in order to go to school and thereafter they demanded Rs.5 lakhs and hence, her father went along with panchas to the house of the accused and requested not to harass her and though they looked after well, after two weeks they continued the harassment. The accused Nos.2 and 3 were not allowed the accused No.1 to live with her and later on they started insisting that if she get the amount of Rs.5 lakhs then only they will allow her to live with him. She was subjected to cross- examination. In the cross-examination, she admits that accused No.1 is the only son of accused Nos.2 and 3. It is also elicited that the father-in-law might have aged about 76 years and he is suffering from blood pressure and diabetic and she replied that they are claiming that they are suffering from the same. It is elicited that she cannot tell the specific date of the galata taken place between them and it is elicited that there are 12-13 houses surrounding the matrimonial home. It is also elicited the said houses were adjacent to each other. It 11 is her evidence that at the instance of accused Nos.2 and 3, accused No.1 was subjecting her for physical assault. But she claims that he assaulted twice or thrice in a week. It is also her evidence that he was assaulting with his hands and she took the treatment at Kurabeta hospital but she does not remember the date of treatment, but she admits that she gave the complaint only after she was thrown out from the house. When the question was put to her whether anybody witnessed the assault made on her, her reply is that she did not observe the same. It is elicited that she cannot tell on what date she took the loan from the SBI and further she says that she might have taken the loan to the tune of Rs.10,000/- and she cannot tell how much her husband paid and she gave advance amount Rs.15,000/-. The cost of motorcycle is Rs.50,000/- and she cannot tell on what date the balance amount was paid. She says that whenever he was in need of money she gave the money. When she made the payment 12 except accused Nos.2 and 3, others were not present. It is elicited that she was thrown out from the house in October-2005. In between 2005-2007 she has not given any complaint. It is also elicited that she cannot tell on what date they demanded Rs.5 lakhs, but she claims that they were demanding the said amount prior to 2005. It is elicited that except this complaint she has not given any other complaint for demanding the said amount. It is also elicited that she is not having any information about the accused persons have constructed the house at Adarsh Nagar, Sankeshwar. It is also elicited that she told her husband that his parents are giving trouble and hence requested to make a separate house and also admits that her husband was writing letter when he was working in the factory and she was also giving reply to the said letters. It is also elicited in the cross examination that referring the letter dated 05.08.2006 and the same was sent on 07.08.2006 and in the said letter a reference was made that he 13 came and met her and also called over the phone and told her to without expecting anything to come to house. It is elicited that the notice was sent in 2007 from Mahila Kendra and in the said Mahila Kendra they have recorded her statement as she made the statement. It is suggested that while making the said statement she did not make any statement that they demanded Rs.5 lakhs and the said suggestion was denied.
10. PW.2 in his evidence he says that he was called for the panchayat and hence, he went to Kuranakar Chala and when he visited the spot, the accused persons were driving out the victim from the house saying that she should bring the money of Rs.5 lakhs. He also admits the signature in the mahazar Ex.P.2. In the cross-examination he admits that there are 50-60 houses surrounding the house of the accused and in all those houses, the villagers are living in the said houses. It is suggested that he is falsely deposing 14 that the accused persons were demanding her to bring the money and driven out her from the house and the said suggestion was denied.
11. PW.3 is the mahazar witness. PW.4 is the mother of the victim-PW.1 and she reiterates her evidence inconsonance with the evidence of PW.1. She was subjected to cross-examination. In the cross- examination, it is elicited that they looked after the victim for a period of three months after the marriage very well. It is suggested that accused No.2 has conferred the award of good teacher and she denies the same saying that she is not aware of the same. It is elicited that normally during the time of marriage, marriage will be performed according to the customs. She cannot tell when they started harassment and she claims that her daughter has sustained injuries when she was subjected to assault and there were mark and she cannot tell in which month and date PW.1 took 15 treatment with Dr.Kurabetta. It is suggested that her son-in-law is having more black complexion compared to her daughter and the witness replies that she does not know the same. It is also elicited that by seeing both of them she cannot tell. After the delivery, her daughter was in the house for a period of 5-6 months and also admits that the accused persons were frequently coming to see the granddaughter and there was no any dispute between them by that time. It is suggested that she is falsely deposing that her daughter only availed the loan to purchase the two wheeler and the said suggestion was denied. It is also elicited that she did not enquire the neighbours and also admits that her daughter was telling and hence she is deposing before the Court.
12. PW.5 is the neighbour, who did not support the case of the prosecution. PW.6 is the PSI who received the compliant and registered the case and investigated the matter.
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13. Having considered both the oral and documentary evidence available on record before the Court, PW.1 and PW.4 are the victim and her mother. There is no any material before the Court with regard to the offence invoked under section 506 of IPC. None of the witnesses have spoken anything about the ingredients of section 506 of IPC. Now only remaining consideration is section 498A of IPC and section 4 of Dowry Prohibition Act.
14. It is to be noted that the complaint was given on 31.8.2007 and according to her, she was driven out in the month of October 2005. There was a delay of 1½ years in filing the complaint. The reason has not been given in the complaint with regard to the delay in lodging the complaint. It has to be noted that when she was subjected to harassment during the stay in the matrimonial home, no complaint was given. In order to substantiate the contentions of the complaint also, 17 PW.1 has not placed any material before the Court for having availed the loan to get the two wheeler in favour of her husband.
15. It is also important to note that it is her case that they demanded the amount of five lakh rupees for construction of the house. But in the cross-examination when a question was put to her that they have already constructed a house at Adarsh Nagar, Sankeshwar, her answer is, she is not aware of the same. With regard to the demand and also the reason for demanding money is also not substantiated in the evidence of PW.1 and also PW.4. It is also her case that when they demanded money, her father went along with some panchas and advised them not to harass her. But the prosecution has not examined those panchas who have visited and advised accused Nos.2 and 3.
16. It is also important to note that PW.4 mother also in the cross-examination admits that she did not 18 make any enquiry with the neighbours and she is deposing before the Court on the say of her daughter. It is not her evidence that she witnessed the incident of harassment at any point of time. It is also emerged in the cross-examination of PW.1 that she was not willing to join accused No.1 to stay along with accused Nos.2 and 3. It is also important to note that the accused used to write letter and also he made several attempts to bring her back and requested and she did not bother to the request of the accused.
17. In the material available before the Court, in order to substantiate the contents of Ex.P.1, there is no any evidence before the Court. Though it is deposed before the Court that they were cordial for a period of three months after the marriage, PW.4 has categorically admitted in the cross-examination that when PW.1 gave birth to a girl baby, the accused persons were frequently visiting the house to see the granddaughter and there 19 was no any dispute at that time. When such being the evidence emerged in the cross-examination, the trial Court considering the evidence of PW.1, particularly who has to depose with regard to the harassment and cruelty and the same is not substantiated by any material on record.
18. It is also important to note that PW.2 who has been examined before the Court says, when he was called to be as pancha to draw mahazar, at that time he witnessed that accused persons were driving her out from the house saying to bring money of five lakh rupees. This evidence also cannot be accepted, for the reason that, according to PW.1, she was driven out from the house in the month of October 2005 itself and mahazar was drawn in 2007 in terms of Ex.P.2 and hence, the evidence of PW.2 also does not inspire confidence of the Court.
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19. Having considered the prosecution evidence available on record, there is no any corroborative piece of evidence and the answers elicited from the mouth of PW.4 in the cross-examination is against the evidence of PW.1 and none of the panchas have been examined and also the neighbours have not been examined and also it is elicited in the cross-examination of PW.1 that 12-13 houses are located very adjacent to the house of the accused persons and none of the neighbours have examined to prove the case of the prosecution. PW.5 who is the neighbour has been examined before the Court did not support the case of the prosecution.
20. The trial Judge having considered the evidence available on record i.e., PW.1 and PW.4 and also the evidence of PW.2 and the answer elicited from the mouth of PW.1, rightly appreciated the conduct and also the material available on record and it is the firm evidence of PW.1 that she was not willing to live with 21 accused Nos.2 and 3 and also she has categorically admitted that accused No.1 is the only son of accused Nos.2 and 3. When all these materials are considered and also when there is a delay in filing the complaint, which has been filed after the alleged driving out her from the house for more than 1½ years, this Court do not find any reasons to reverse the finding of the trial Court.
21. The appellate Court cannot reverse the finding of the trial Court in coming to the conclusion that the trial Court not appreciated the evidence and only in the case of non-consideration of cogent evidence and material can reverse the findings if it amounts to miscarriage of justice. This Court do not see such a situation in the case on hand having considered the evidence of prosecution witnesses. The trial Court has not committed any error in acquitting the accused. 22
22. In view of the discussions made above, this Court proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE *Svh/sh/mrk/-