Bangalore District Court
4. Name Of The 1:Harish Bore Gouda @ ... vs S/O. Bore Gowda on 2 December, 2016
IN THE COURT OF THE VIII ADDL.C.M.M., BENGALURU.
Dated this the 2nd day of December 2016.
Present : Sri.Mohamed Ashraf Aris, B.A., LL.B.
VIII ADDL. C.M.M., BENGALURU.
C.C. No. 10577/2009
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 10577-09
2. The date of 19/10/2001
commission of the
offence
3. Name of the State by Chandra Layout P.S.
complainant
4. Name of the 1:Harish Bore Gouda @ Harish,
accused S/o. Bore Gowda, 36 years,
No.55, 3rd Main Road, Binny
Layout, Attiguppe, Bengaluru.
2:Vanajakshi, W/o.Bore Gowda,
62 years, No.55, 3rd Main Road,
Binny Layout, Attiguppe,
Bengaluru.
3:Boregouda,
S/o.Thimmegowda, 71 years,
No.55, 3rd Main Road, Binny
Layout, Attiguppe, Bengaluru.
2 CC No. 10577-09
4:Shylaja, W/o. A.Suresh, 38
years, R/at No.30, II Main,
Road, Binny Layout,Vijayanagar
Behind, Attiguppe, Bengaluru.
5. The offence U/sec. 498(A) of IPC.
complained of or
proved
6. Plea of the accused Pleaded not guilty
and his
examination
7. Final Order Acting U/sec. 248(1) Cr.PC
Accused -1 to 4 are acquitted.
8. Date of such order 02/12/2016
For the following:-
JUDGMENT
This is the charge sheet filed by the PI, Chandra Layout P.S. against the accused-1 for the offence punishable U/sec.498(A). Accused Nos.2 to 4 were impleaded later as per order passed by this court on 30/07/2011 on the basis of the application filed U/sec.319 of Cr.PC by the prosecution.
2. The brief facts of the prosecution case is that:
The accused-1 married CW.1 on 19.10.01 at Rajarajeshwari Kalyanaa Mantap at Rajajinagar in 3 CC No. 10577-09 accordance with customs and thereafter accused-1 to 4 subjected CW.1 to cruelty and thereby and committed the alleged offence.
3. Accused - 1 to 4 are on bail. Copies of the charge sheet papers were furnished to the accused. The accused pleaded not guilty to the charge read over to him. Prosecution examined PWs:1 to 3 and got marked Ex.P.1 to P21 and got marked the documents Ex.D1 to D27. Accused have been questioned u/sec. 313 of Cr.PC.
4. Heard arguments from both the sides .
5. The points that arise for determination are as follows:
1) Whether the prosecution proves beyond all reasonable doubt that after the marriage of CW.1 with accused No.1, the accused-1 to 4 subjected CW.1 4 CC No. 10577-09 to cruelty and thereby committed the offence punishable U/sec.498(A) of IPC.?
2) What order?
6. The Answer to the above points are as follows:
Point No.1 In the negative Point No.2 As per final order for the following:
REASONS
7. Point No.1:-
It is not disputed that accused-1 is the husband of CW.1 and their marriage was solemnized on 19.10.01 at Rajarajeshwari Kalyana Mantap at Rajajinagar and they were residing together in the house of the accused along with the other accused.
8.The first information given by CW.1 is marked as Ex.P1. It was lodged on 16/02/2009. In Ex.P1 she has 5 CC No. 10577-09 stated that, since 5 years the accused have been subjecting her to mental and physical cruelty. She has stated that the accused were quarrelling with her for silly reasons and taunting her as to why she has not brought dowry and were insulting her that she is useless and that her mother- in-law was beating her saying that she does not prepare food properly. She has stated that her sister-in-law was saying that, she was not up to their status and they were locking her in the bath room. Further, she has stated that the accused-1 has assaulted her on several occasions during night and pushed her out of the house.
9. PW.1 has further stated in her chief-examination that in the year 2007 her father gifted one site measuring 20 X 40 feet at Koramangala and that the accused were quarrelling with her for getting a bigger site of 30 X 40 and that during Deepavali of the said year she was sent out of the matrimonial house asking her to get a bigger site and 6 CC No. 10577-09 that after one week of Deepavali her father brought her back to the house of the accused and requested the accused and his parents not to trouble her and thereafter she was shifted to the I Floor and the accused continued to stay in the Ground Floor and completely stopped matrimonial relationship from that day. She has stated that on 20/09/2002 she has given birth to a female child and her parents in law shifted her and her daughter to the I Floor and thereafter the accused stopped coming to the I Floor and they started quarreling with her and making allegation that she was having illicit relationship with one Muslim and tried to telecast in TV-9 and that she intended to commit suicide also.
10. PW.1 has further stated in her chief-examination that on 19/01/2009 the accused sent a notice for divorce making false allegations and filed petitions before the Family Court making false allegations and also went to the 7 CC No. 10577-09 extent of lodging false complaint against her for attempt to commit murder in which case she was acquitted.
11. PW.1 has stated about the police conducting the spot mahazar as per Ex.P2.
12.Prosecution has produced several documents in support of the contention of the complainant. The letter dated 25/02/2009 and 14/03/2009 written by PW.1 to her father and another letter dated 27/02/2009 are marked as Ex.P7 to P9. Two Money Order Receipts are produced and marked as Ex.P10 and 11. The copy of the complaint given by the accused against her in the Chandra Layout P.S. is marked as Ex.P12. The copy of the affidavit of the accused in C.C. No.364/2009 is marked as Ex.P13 and objections of the accused is marked as Ex.P14. The Judgment of the Hon'ble Fast Track Court in Sessions case 61/2010 is marked as Ex.P15. The order passed by the State Human Commission is marked as Ex.P16. The report 8 CC No. 10577-09 annexed to the order is marked as Ex.P17. Copy of another complaint given by the accused before the Chandra Layout P.S. is marked as Ex.P18 and the copy of the statement given by PW.1 herein before the police is marked as Ex.P19.
13.Further, PW.1 has stated that she had to leave the matrimonial house for the purpose of applying for anticipatory bail in the case registered against her by the accused for the offence punishable U/sec. 307 of IPC and on return she was not allowed to get inside the matrimonial house by her father in law and as such she was staying in a P.G. and subsequently in pursuance of the orders in proceedings under the D.V. Act, she was provided with alternative residence. The certified copy of the encumbrance certificate is marked as Ex.P20.
14.Father of CW.1 has been examined in chief as PW.2. He has also stated in a similar manner as stated 9 CC No. 10577-09 by PW.1. But he remained absent for cross, in spite of several opportunities. Hence, this court has discarded his evidence as per order dated 10/01/2014.
15.The Investigating Officer has been examined as PW.3. He has stated about receiving the complaint as per Ex.P1 and registering the FIR as per Ex.P21 and drawing the spot mahazar as per Ex.P2. He has stated about recording the statements of CW.2 to 6. The wedding invitation card and photographs are marked as Ex.P3 to
6. He has completed the investigation and filed the charge sheet against the accused.
16.The only oral evidence available for appreciation is of the defacto complainant herself.
17.The marriage between accused-1 and PW.1 was solemnized on 19/10/2001. PW.1 gave birth to a child on 20/09/2002. They had been to tour to various places. In 10 CC No. 10577-09 the year 2003 they had been to Germany. In the year 2004 they had been to Australia. They have also visited Australia and Switzerland. This is admitted by PW.1 in the cross. Accused-1 had deposited some amount for the education of PW.1 in the year 2008. This is also admitted by PW.1 in the cross.
18. House site was gifted to PW.1 by her father in the year 2008. However, PW.1 has gifted it away to her sister on 27/12/2008. This is admitted in cross. PW.1 filed petition under D.V.Act., she was granted maintenance of Rs. 20,000/- and education expenses of child of Rs. 80,000/- from accused-1. PW.1 was provided with separate residence in the first floor of the house. PW.1 was working in a company, but she left the job in December, 2008.
19.The letters which are marked as Ex.P7 to 9, written by PW.1 to her father are written after lodging of 11 CC No. 10577-09 this complaint. There were exchange of notice as per Ex.PD4 to 6 prior to filing of the complaint.
20.The accused-1 found number of calls being made to one Ayub by PW.1. The said Ayub is a colleague of PW.1. In the cross-examination PW.1 has admitted that he is the colleague. The accused have got marked the photographs of PW.1 and Ayub as Ex.D1 and D2 wherein their joint photo is seen. PW.1 in her cross-examination has stated that she does not know the person with whom her photo was taken in Ex.D1 and D2. The accused has got marked copies of E- mails as Ex.D24 to 27, which are the communications between PW.1 and the said Ayub. Further, the call records of PW.1, which were produced in Section 307, Sessions case has been marked herein as Ex.D23, through the Investigating Officer-PW.3. These call details also shows several phone calls between PW.1 and the said Ayub. There was an attempt of murder case filed against PW.1 12 CC No. 10577-09 Ayub and 2 others by the Chandra Layout Police , on the basis of the complaint given by accused-1. The accused-1 has alleged that, he was assaulted by those 4 persons when he was going for a walk on 1/9/2008 at about 7.30 a.m. at Binny Layout the accused-1 suspected the said Ayub. The police after investigation, filed the charge sheet against the Ayub, PW.1 herein and 2 others in S.C.No.61/2010, the Judgment copy in S.C. No.61/2010 has been marked as Ex.P15. In the said case the accused i.e., PW.1 herein and others have been acquitted. However the judgment was challenged before the Hon'ble High Court and the matter has been remanded by setting aside the judgment. On going through the call details and the E-mail communication the accused-1 had certain suspicion over PW.1, which is not mere suspicion, but based on those materials. On going through the evidence, it is seen that, thereafter there has been differences between PW.1 and the accused-1.
13 CC No. 10577-09
21.So far as the allegations made in the complaint is concerned, there is contradiction and omission in the evidence placed by the prosecution. The counsel for the accused has pointed out various contradictions in the evidence of PW.1. He has pointed out that there is no demand of dowry. The demand is said to be demand of bigger site from the parents of PW.1. However, there is contradiction in the complaint and deposition of PW.1 regarding the extent of the site demanded. There is also contradiction regarding the starting time of the alleged harassment and demand for dowry. The counsel for the accused has pointed out to the various portions of deposition of PW.1 and also the complaint and exhibits and has also mentioned the same in the memorandum of written arguments. Further, in the deposition of PW.1 at Page -1, she has stated that the accused were taunting her that, she did not bring dowry. However, in her deposition 14 CC No. 10577-09 in the cross-examination at page -17 she has admitted that in her statement before the Human Rights Commission, which is marked as Ex.D8 she has not stated that, her husband has demanded dowry at the time of marriage.
22.On going through the entire evidence of PW.1, the documents marked on behalf of the prosecution and also on behalf of the accused, this court is of the opinion that there are reasonable doubts arising out of the prosecution case and benefit of the same needs to be given to the accused.
23.The counsel for PW.1, who is assisting the prosecution has filed written arguments and has cited following decisions:
1. 2002 SCC (Cri)1765 :
(Mohd. Hoshan A.P. & another. Vs. State of A.P.):
Wherein it has been held that, the continuous taunting or teasing of the deceased by the appellants on one 15 CC No. 10577-09 ground or the other amounting to mental cruelty drawing her to end her life.
2. 1998 CRI.L.J. page 1144 (SC):
(Pavan Kumar & Ors. Vs. State of Haryana):
Wherein it has been held that, mental torture is also amounts to cruelty.
3. 1996 CRI.L.J. 852 :
(S.G.Gundegowda alias Moganna Vs. State of Yealur Police, Hassan Dist.):
Wherein it has been held that, conviction can be based on the testimony of sole witness.
4. 2000 CRI.L.J. 4220:
(State by Rural Police, Appellant Vs. Siddaraju & Ors.) Wherein it has been held that, ill- treating and not even giving food to first wife amounts to cruelty.
24.Perused the aforesaid decisions. However, in the case on hand, there is no sufficient evidence beyond all reasonable doubt to prove the allegations made against the accused.
16 CC No. 10577-09
25.The counsel for the accused has relied on the following decisions.
1) 2013 (1) AKR 300, Karnataka High Court (Dharwad Bench)
2) 2012 (1) Air Kar R 186, Karnataka High Court
3) 2016(3) AKR 527, Karnataka High Court (Kalaburgi Bench)
4) 2016 (2) ABR (Cri) 483, Bombay High Court
5) 2015 CRI.L.J. (NOC) 354 (GAU.)
26.The aforesaid decisions are aptly applicable to the case on hand. For the aforesaid said reasons, point no.1 is answered in the negative.
27. Point No.2:- In the result, the following order is passed:
ORDER Acting under Section-248(1) of Cr.P.C., the accused-1 to 4 are hereby acquitted of the offence punishable U/sec. 498(A) of IPC.17 CC No. 10577-09
Bail bonds of accused and their surety bonds stand cancelled.
(Dictated to the stenographer, transcript thereof, corrected and then pronounced by me in the open court this the 2nd day of December 2016.) (Mohamed Ashraf Aris) VIII Addl.C.M.M. Bengaluru.
Annexure:
1.List of Witnesses examined on behalf of the prosecution: P. Ws:
1. Smt. Anitha. R
2. K.K.Rudraiah
3. H.R.Reddy.
2.List of Documents marked on behalf of the prosecution:- Ex.Ps:
1. Complaint
2. Spot mahazar
3. Wedding Photo
4. Wedding Photo
5. Wedding Photo
6. Wedding Card
7. Letter
8. Letter
9. Letter
10. M.O. Receipt
11. M.O. Receipt
12. Certified copy of complaint
13. Certified copy of Affidavit Crl.Misc.No.364/2009
14. Certified copy of the objection in Crl.Misc.No.364/09.
15. Certified copy of Judgement of FTC -17 SC No.61/10
16. Certified copy of State Human Commission Order 18 CC No. 10577-09
17. Report of annexed of the order
18. Certified copy of complaint
19. Certified copy of statement
20. Certified copy of encumbrance certificate
21. FIR.
3.List of Material objects marked on behalf of the prosecution:- -NIL-
4. List of witnesses examined on behalf of the accused:
Dws:- -Nil-
5. List of documents marked on behalf of the accused: Ex.Ds:-
1. Photo
2. Photo
3. Letter from Anitha.R
4. Legal Notice dated 19/01/2009.
5. Acknowledgement
6.RPAD Letter dtd 5/2/09
7.RPAD Cover
8.Statement of Smt.Anitha dtd 11/09/2009
9.Six Photographs
10.Two Photographs 11.4 Photographs
12.Deposition of PW.6 in SC No.61/10
13.Internet Copy Crl.A.No.840/11
14.Internet Copy Crl.A No..228/11
15.Eye Donate Card
16.Salary Certificate
17. Photograph
18. Photograph
19. Photograph
20. Photograph
21.Tax Invoice.19 CC No. 10577-09
22.Copy of order sheet M.C. NO.375/2009
23.Report
24. E-mail copy
25. E-mail copy
26. E-mail copy
27. E-mail copy.
VIII Addl. C. M. M. Bengaluru.
20 CC No. 10577-0921 CC No. 10577-09 22 CC No. 10577-09 23 CC No. 10577-09
Judgment pronounced in the open court. (vide separate order) ORDER Acting under Section-248(1) of Cr.P.C., the accused-1 to 4 are hereby acquitted of the offence punishable U/sec. 498(A) of IPC.
Bail bonds of accused and their surety bonds stand cancelled.
VIII Addl.C.M.M. Bengaluru.