Karnataka High Court
State By Chandra Layout Police vs Srinivas @ Vasu on 5 December, 2022
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL APPEAL No.1169 OF 2012
c/w.
CRIMINAL APPEAL NO.203 OF 2013
&
CRIMINAL REVISION PETITION NO.1026 OF 2012
CRIMINAL APPEAL No.1169 OF 2012
BETWEEN:
State by Chandra Layout
Police, Bangalore.
..Appellant
(By Sri. Vinayaka V.S., High Court Government Pleader)
AND:
1. Srinivas @ Vasu,
S/o. Ramakrishna,
Aged about 39 years.
2. Ramakrishna,
S/o. Ramakrishnaiah,
Aged about 62 years.
3. Jayamma,
W/o. Ramakrishna,
Aged about 58 years.
4. Cheluvaraj @ Cheluva,
S/o. Ramakrishna,
Aged about 32 years.
Crl.A.No.1169/2012
c/w Crl.A.No.203/2013
& Crl.R.P.No.1026/2012
2
5. Abhinaya,
W/o. Niranjan,
Aged about 35 years.
All are residing at No.1234/B,
8th Cross, Chandra Layout,
Bangalore - 560 040.
.. Respondents
(By Sri. B.V. Pinto, Advocate for R-3 to R-5;
Appeal abated as against R-1 v/o. dt.23-05-2022;
Appeal abated as against R-2 v/o. dt.28-10-2022)
****
This Criminal Appeal is filed under Section 378 (1) and (3)
of the Code of Criminal Procedure, 1973, with a prayer to grant
leave to appeal against the judgment and order dated
09-03-2012, passed by the learned Presiding Officer, Fast Track
Sessions Court-XVII Bangalore City, in Criminal Appeal
No.91/2010, thereby acquitting the respondents - accused 1 to 5
of the offence punishable under Section 498A of the IPC and
under Sections 3 and 4 of the D.P. Act; to set aside the aforesaid
judgment and order impugned herein acquitting the respondents
for the said offence by allowing this appeal, and to convict and
sentence the accused - respondents for the offences with which
they have been charged, in accordance with law in the interest of
justice and equity.
CRIMINAL APPEAL No.203 OF 2013
BETWEEN:
Smt. Lakshmi Devi,
W/o. Sri. Srinivasa @ Vasu,
Aged about 40 years,
Residing at Old No.161,
New No.305, 7th Cross,
Lakshmipuram (K.G. Nagar),
Crl.A.No.1169/2012
c/w Crl.A.No.203/2013
& Crl.R.P.No.1026/2012
3
Krishnadevaraya Road,
Bangalore - 560019.
..Appellant
(By Sri. Kemparaju & Sri. Bhyresh V., Advocates)
AND:
1. Sri. Srinivas @ Vasu,
S/o. Ramakrishna,
Aged about 43 years.
2. Sri. Ramakrishna,
S/o. Ramakrishnaiah,
Aged about 70 years.
3. Smt. Jayamma,
W/o. Ramakrishna,
Aged about 66 years.
4. Sri. Cheluvaraj @ Cheluva,
S/o. Ramakrishna,
Aged about 40 years.
5. Smt. Abhinaya,
W/o. Niranjan,
Aged about 44 years.
All are residing at No.1234/B,
8th Cross, Chandra Layout,
Bangalore.
6. State by Chandra Layout Police,
Represented by State Public Prosecutor,
High Court Building,
Bangalore - 560 001.
.. Respondents
(By Sri. B.V. Pinto, Advocate for R-3 to R-5;
Appeal abated as against R-1 v/o. dt.23-05-2022;
Crl.A.No.1169/2012
c/w Crl.A.No.203/2013
& Crl.R.P.No.1026/2012
4
Appeal abated as against R-2 v/o. dt.28-10-2022;
Sri.Vinayaka, V.S., High Court Govt. Pleader for R-6)
****
This Criminal Appeal is filed under Section 372 of the Code
of Criminal Procedure, 1973, praying to allow the Criminal
Appeal setting aside the judgment passed by the Fast Track
Court -XVII, Bangalore, in Criminal Appeal No.91/2010 dated
09-03-2012, in the interest of justice and equity.
CRIMINAL REVISION PETITION No.1026 OF 2012
BETWEEN:
State by Chandra Layout
Police, Bangalore.
..Petitioner
(By Sri. Vinayaka V.S., High Court Government Pleader)
AND:
1. Srinivas @ Vasu,
S/o. Ramakrishna,
Aged about 39 years.
2. Ramakrishna,
S/o. Ramakrishnaiah,
Aged about 62 years.
3. Jayamma,
W/o. Ramakrishna,
Aged about 58 years.
4. Cheluvaraj @ Cheluva,
S/o. Ramakrishna,
Aged about 32 years.
Crl.A.No.1169/2012
c/w Crl.A.No.203/2013
& Crl.R.P.No.1026/2012
5
5. Abhinaya,
W/o. Niranjan,
Aged about 35 years.
All are residing at No.1234/B,
8th Cross, Chandra Layout,
Bangalore - 560 040.
.. Respondents
(By Sri. B.V. Pinto, Advocate for R-3 to R-5;
Appeal abated as against R-1 v/o. dt.23-05-2022;
Appeal abated as against R-2 v/o. dt.28-10-2022)
****
This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
praying to allow the above revision petition by setting aside the
order of dismissal passed by the learned Presiding Officer in
Criminal appeal No.466/2010 dated 09-03-2012 and under
Sections 3 and 4 of the D.P. Act; and to impose maximum
sentence for the offences punishable under Section 3 of the D.P.
Act, in accordance with law, in the interest of justice and equity.
The Criminal Appeals and the Criminal Revision Petition
having been heard through physical hearing/video conferencing
hearing and reserved on 22-11-2022, coming on for
pronouncement of Orders this day, the Court made the following:
COMMON ORDER
All these matters have arisen basically from a Criminal Case bearing C.C.No.6008/2003, in the Court of the VIII Additional Chief Metropolitan Magistrate, Bangalore Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 6 (hereinafter for brevity referred to as "the Trial Court"), which Court, by its impugned judgment of conviction and order on sentence dated 05-01-2010, had convicted the accused Nos.1 to 5 before it (respondents No.1 to 5 herein) for the offences punishable under Section 498A of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC") and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (hereinafter for brevity referred to as "the D.P.Act") and sentenced them accordingly.
Aggrieved by the said judgment of conviction and order on sentence, the accused persons in the Trial Court filed an appeal in Criminal Appeal No.91/2010 and sought for their acquittal. The State also filed another appeal in Criminal Appeal No.466/2010 against the same judgment seeking enhancement of quantum of punishment ordered against the accused Nos. 1 to 5, for the offence punishable under Section 3 of the D.P. Act and thus for modification of the order on sentence. Both the appeals were filed in the Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 7 Court of the Presiding Officer, Fast Track Sessions Court- XVII, Bangalore City, (hereinafter for brevity referred to as "the Sessions Judge's Court), which Court, after hearing both side, by its common judgment dated 09-03-2012, allowed the Criminal Appeal No.91/2010 filed by the accused by setting aside the impugned judgment of conviction passed by the Trial Court and acquitted all the five accused persons from the alleged offences. Simultaneously, the Criminal Appeal No.466/2010 filed by the complainant/State, seeking enhancement of the quantum of sentence against the accused Nos.1 to 5 was dismissed.
Challenging the judgment of the Sessions Judge's Court dated 09-03-2012 in Criminal Appeal No.91/2010, the State has filed the present Criminal Appeal No.1169/2012 under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."), seeking setting aside of the impugned judgment Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 8 of acquittal passed by the Sessions Judge's Court and for conviction of the accused persons for the alleged offences.
The informant before the Police, i.e. the complainant - Smt. Lakshmidevi also has challenged the judgment of acquittal passed by the Sessions Judge's Court in the present Criminal Appeal No.203/2013 under Section 372 of the Cr.P.C., seeking setting aside of the impugned judgment of acquittal passed by the Sessions Judge's Court in Criminal Appeal No.91/2010.
The State being aggrieved by the dismissal of its Criminal Appeal No.466/2010 by the Sessions Judge's Court, has filed the present Criminal Revision Petition No.1026/2012, under Section 397 read with Section 401 of the Cr.P.C., seeking setting aside of the judgment passed by the Sessions Judge's Court in Criminal Appeal No.466/2010 and for imposition of maximum sentence against the accused for the offence punishable under Section 3 of the D.P. Act.
Crl.A.No.1169/2012c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 9
2. The accused Nos.3 to 5 (respondents 3 to 5 herein in all these matters) are being represented by their learned counsel.
3. The Trial Court and the Sessions Judge's Court's records were called for and the same are placed before this Court.
4. Learned High Court Government Pleader for the State, the learned counsel for the complainant and the learned counsel for the accused Nos.3 to 5 (respondents No.3 to 5) are physically appearing in the Court.
5. During the pendency of the present two appeals and the revision petition, due to the death of the respondent No.1 (accused No.1) and respondent No.2 (accused No.2), the appeals and the revision petition against respondent Nos.1 and 2 came to be abated on the dates 23-05-2022 and 28-10-2022 respectively, as such, the present criminal appeals and the revision petition are Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 10 confined only against the respondents No.3, 4 and 5 who were the accused No.3, accused No.4 and accused No.5 respectively in the Trial Court.
6. Heard the learned counsels from both side. Perused the materials placed before this Court including the impugned judgments passed by both the Courts and also the Trial Court and Sessions Judge's Court's records.
7. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
8. After hearing the learned counsels for the parties, the points that arise for my consideration in these two appeals and the revision petition are:
i] Whether the impugned judgment of acquittal passed by the Sessions Judge's Court in Criminal Appeal No.91/2010 dated 09-03-2012 by setting aside the judgment of conviction passed by the Trial Court in C.C.No.6008/2003 dated 05-01-2010 is Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 11 illegal, perverse and erroneous, warranting interference at the hands of this Court?
ii] Whether the impugned judgment passed by the Sessions Judge's Court in Criminal Appeal No.466/2010, dismissing the said appeal filed by the State is erroneous, illegal and perverse, warranting interference at the hands of this Court.
iii] Whether the prosecution has proved the alleged guilt against the accused No.3, accused No.4 and accused No.5 beyond reasonable doubt?
iv] Whether the sentence of imprisonment ordered upon accused No.3, accused No.4 and accused No.5 by the Trial Court for the offence punishable under Section 3 of the Dowry Prohibition Act, 1961, is inadequate and deserves to be enhanced?
9. The summary of the case of the prosecution in the Trial Court was that, the accused No.1 - Sri. Srinivas @ Vasu, S/o. Ramakrishna, now deceased, was the husband of the complainant - Smt. Lakshmidevi; Accused No.2 - Sri. Ramakrishna, now deceased and accused No.3 - Smt. Jayamma are the father-in-law and mother-in-law Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 12 respectively of the complainant; Accused No.4 - Sri. Cheluvaraj @ Cheluva and Accused No.5 - Smt. Abhinaya (then Kum. Abhinaya) are respectively the brother and sister of accused No.1, as such, brother-in-law and sister-in-law of the complainant - Smt. Lakshmidevi (CW-1).
10. Accused No.1 - Sri. Srinivas @ Vasu married Lakshmidevi (CW-1) on the date 23-03-1998, at which time, a sum of `80,000/- was collected by him as dowry besides the golden ornaments on demand. Thereafter, all the accused demanded CW-1 - Smt. Lakshmidevi to bring additional dowry of a sum of `1,00,000/- and subjected her to cruelty and ill-treatment and thus committed the offences punishable under Sections 498A of the IPC and under Sections 3 and 4 of the D.P. Act.
11. In order to prove the guilt for the alleged offences against the accused, the prosecution examined in Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 13 all nine witnesses from PW-1 to PW-9, got marked eight documents from Exs.P-1 to P-8 and three material objects from MO-1 to MO-3 were produced. From the accuseds' side, only two photographs were got marked as Exs.D-1 and D-2, however, no witnesses were examined from their side.
12. PW-1 (CW-1) - Smt. Lakshmidevi, in her evidence has stated that, the negotiation for her marriage took place in her senior uncle - Sri. Kuntaiah's house about fifteen days prior to the date of marriage. At that time, in the said negotiation, her parents, her elder brother one - Sri. Siddu, Sri. Raju, Smt. Bayamma, Sri. Venkataraju, Sri. Suresh and Smt. Chikkamma were present. From the accuseds' side, accused No.1, his parents, the brother and sister of the accused No.1 and many other persons were present. In the said negotiation, the accused demanded for half a kilogram of gold, however, after they were told that so much of gold cannot be given, as such, they (accused) reduced Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 14 their demand for quarter kilogram of gold and cash of a sum of `80,000/- as dowry. They also demanded for a golden bracelet, two golden finger rings, golden neck chain and a wrist watch to the bridegroom and her (CW-1's) parents agreed to give those articles as demanded by them apart from bearing the marriage expenses.
The witness further stated that, her marriage with accused No.1 was solemnized on the date 23-03-1998, at Sundar Mahal in Girinagara. After the marriage, she went to her marital home, where the accused persons took care of her well for about four months. Then, they started subjecting her to ill-treatment, demanding an additional dowry of `20,000/- and even the said amount of `20,000/- was also paid to them. Her husband i.e. accused No.1 was pestering her to sleep with other male persons visiting their house stating that, he would get money, if she sleeps with them.
Crl.A.No.1169/2012c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 15
The witness has further stated that, as a pregnant when she went to her parental home, her mother-in-law had taken out all the golden ornaments worn by her.
The witness stated that after she delivered a male child in the Hospital on the date 24-10-1999, none of the accused visited her either to see her or to see the new born child. Thereafter, her father went to the house of the accused, requesting them to take back their daughter-in- law and grandson, but the accused refused to receive her back with the child, until an additional sum of `1,00,000/- was given to them. In that connection, a complaint was lodged with the Chandra Layout Police Station, as per Ex.P-1.
The witness stated that subsequent to her complaint, the Police visited the house of the accused and seized several of the golden ornaments by drawing a panchanama as per Ex.P-2.
Crl.A.No.1169/2012c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 16
CW-1(PW-1) has further stated in her evidence that, one week prior to the marriage, a sum of `80,000/- was given as dowry in the hands of her mother-in-law. At the time of marriage, golden ornaments were given to her (complainant) and her husband (accused No.1) by her maternal home. The witness has produced the marriage invitation card at Ex.P-3 and two photographs at Exs.P-4 and P-5 respectively. The witness also stated that accused No.1 i.e. her husband had threatened her that in case if she files any complaint against them, he would kill her. She stated that after four months of her marriage, the accused sent her back to her parental house, demanding for additional dowry. At that time, her parents had given `20,000/- as additional dowry, after holding a Panchayat, still, the accused, were threatening her that in case if she fails to get additional dowry of a sum of `1,00,000/-, they would put an end to her. She also stated that the accused were ill-treating her and were telling that in case if she establishes bodily connection with the persons visiting their Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 17 house, they would get money. She also stated that they (complainant and her parents) had given a sum of `15,000/- as brokerage to one Smt. Jayamma, however, after marriage, she also joined the accused persons and was advising her (PW-1) that she should do what the accused are asking her to do.
PW-1 (CW-1) has further stated that after she lodged the complaint with the Police, the Police visited the house of the accused and drew a scene of offence panchanama for which she has put her signature. She identified the accused in the Court. The witness has also identified a golden neck chain, a finger ring and a wrist watch at MO-1 to MO-3, stating that they were given from her parent's house to the accused No.1. She also stated that the golden ornaments weighing in total quarter kilograms (1/4 kg.) were got removed from her possession by her mother-in-law (accused No.3) and she retained them with herself and did not return them to her (this witness). She stated that the Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 18 Police during investigation has seized all those golden articles, but have not given them to her. In that regard, she had given a complaint to the Office of the Commissioner of Police as per Ex.P-6 and the Police had given an endorsement as per Ex.P-7. She also produced an endorsement said to have been given by the Chandra Layout Police Stating that, it is only after she gives a Court order for the custody of the ornaments, they would deliver the same to her.
PW-1 (CW-1) was subjected to a detailed cross- examination from the accuseds' side, wherein she adhered to her original version. Further, she also stated that, while she was in the house of the accused after her marriage and was pregnant, the accused had made her to suffer a snake bite intentionally and thereafter, her pregnancy resulted in an abortion. She stated that, thinking that either today or tomorrow, the accused would set right by themselves, she had not mentioned all those incidents in her complaint. She Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 19 reiterated the alleged demand made by the accused for the dowry from the complainant's family. Two photographs of herself and a child was confronted to PW-1 from the accuseds' side, suggesting that the ornaments shown to have been worn by the child in the said photograph were given by them (accused), however, the witness has not admitted the same as true. Further, the denial suggestions made to her in her cross-examination were not admitted as true by this witness. She stated that even on the date of the evidence, she was ready and willing to join her husband. Since she was threatened of her life, she had withdrawn her matrimonial case bearing M.C.No.481/2003.
13. PW-2 (CW-3) - Chikkamma, the mother of the complainant also has stated in her evidence about the accused demanding the dowry prior to the marriage and accepting the dowry given to them by her family. She has given the details of demand made by them including the alleged demand said to have been met by them. The Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 20 witness stated that the accused demanded for cash of a sum of `80,000/-, a golden neck chain, golden bracelet, two golden finger rings and a wrist watch as dowry to the bridegroom and a golden long chain, a necklace, six bangles, hangings, maati, three golden finger rings with golden round ear stud with drops to the bride. As per the marriage negotiation, a cash of `80,000/- was given by her and her husband to the accused and at the time of marriage, the golden ornaments and a watch were also given.
The witness further stated that for about four months after the marriage, the accused took care of her daughter, i.e PW-1 well in their house, still, since her son-in-law demanded for some more amount as additional dowry, they gave him the said amount also.
The witness further stated that none of the accused visited the complainant and her newly born son after the complainant gave birth to the child. A Panchayat was also Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 21 held in the presence of the elders, still, the accused did not take back the complainant to their house. The witness further stated that after the Panchayat, the accused came to their house and demanded for additional dowry and cash of a sum of `1,00,000/- and a site property and till meeting the said demand, they would not call back the complainant and her child to their house. In that connection, these people had lodged a complaint with the Police and also before the Women's Association (Mahila Samaja). They had summoned the accused and advised them appropriately, still, the accused did not take back the complainant and the child to their house. The attempts made by herself (this witness) and her husband to leave the complainant and her child in their house (marital home of the complainant) also did not receive any positive response since they sent them back without admitting them into their house. This witness also has identified the Material Objects from MO-1 to MO-3 as the articles given to accused No.1. Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 22
The witness further stated that, in the marriage negotiation, these people had agreed to give ¼ kg. of gold and accordingly, at the time of marriage, golden ornaments weighing in total ¼ kg. was given to the accused.
Even in her cross-examination, this witness adhered to her original version and gave further details about these people partially meeting the further demands for additional dowry by paying a sum of `20,000/- to the accused.
14. PW-3 (CW-5) - Siddappa, who is the relative of PW-1 and a person known to the family of the complainant has stated that, he too had attended and participated in the marriage negotiation. He has also given the details of the alleged demand for dowry said to have been made by all the five accused persons in the marriage negotiations and the outcome of the said negotiation, where the parents of the complainant agreed to give ¼ kg. of golden ornaments in the form of a golden bracelet, a golden chain, ring and a wrist watch as dowry in addition to cash of a sum of Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 23 `80,000/-. The witness stated that accordingly, it is after giving the cash and all the articles as agreed, the marriage of PW-1 was performed with accused No.1. This witness also has stated that, after four months of her marriage, the accused started subjecting PW-1 to cruelty, demanding from her the additional dowry to be brought from her parents house.
The witness has also stated that one year after the birth of the child to PW-1, the accused came to the house of the parents of the complainant and once again demanded for additional dowry and made hue and cry and had left the place. It was in that connection, the complainant had lodged a Police complaint, at which, the Police had summoned the accused. Though the accused had promised before the Police that they would take back the complainant (PW-1) with the child, but they did not. The witness also stated that the father of the complainant (CW-2) joined by Smt. Chikkamma (CW-3) and one Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 24 Narasimhaiah took the complainant with the child to the house of the accused to leave them there, however, the accused, without allowing them inside, had sent them back.
The witness in his cross-examination, apart from adhering to his original version, has also given the details as to when and in what manner the dowry of `80,000/- in cash was given to the accused and who were all present in the marriage negotiation.
15. PW-4 (CW-8) - Lakshmamma, who claims to be the neighbour of CW-1 to CW-3 has also stated that, she too had attended the marriage negotiation that had taken place fifteen days prior to the marriage of PW-1 (complainant) and accused No.1, in the house of the elder brother of CW-2. This witness also has reiterated that in the marriage negotiation, the accused demanded for a large quantity of gold and other valuables as dowry, however, after negotiation, it was agreed that the complainant's side at least should give `80,000/- in cash, a golden bracelet, a Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 25 golden chain, two rings and a wrist watch and ¼ kg. of golden ornaments as dowry. Accordingly, the cash and golden ornaments were given and the marriage was performed from the parents of the complainant.
PW-4 has further stated that after taking care of the complainant while she was in her matrimonial home for about two to three months, thereafter, the accused started subjecting her to cruelty and started demanding to bring additional dowry and also a site. Due to the said cruelty, demanding dowry, the complainant returned to her parents home. The witness stated that, still, the accused were visiting the house of the complainant and demanding for dowry and these details were being given to her by none else than the complainant.
The witness also stated that even after complainant gave birth to a male child, none of the accused visited her to see the complainant and her child, rather, even thereafter, they continued their demand for additional Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 26 dowry and they had also made a quarrel in that regard. The witness further stated that the attempt made by the parents of the complainant to send her back to her matrimonial home also went in vain, since the accused did not allow them to enter their house.
In the cross-examination, this witness has given more details as to how and in what manner the dowry, as agreed, was given to the accused by the complainant's side.
16. PW-5 (CW-6) - Venkataraju, the cousin brother of the complainant has also stated that, he too participated in the marriage talks. He also narrated about the demand of the accused and acceptance of the dowry by them, as stated by the previous witnesses and further stated that, since the accused did not take back the complainant with her child after she giving birth to the child, he too participated in the Panchayat held in that regard, however, the accused demanded for valuables in the form of a site Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 27 property, but refused to take back the complainant to their house.
The evidence of this witness could not be shaken in his cross-examination.
17. PW-6(CW-7) - M. Raju, the neighbour of CW-2 has stated that, in the marriage negotiation, along with others including Siddappa, Bayamma and Venkataraju, he too had attended, which took place in the house of the senior uncle of the complainant. He stated that the parents and other relatives of the accused also participated in the marriage negotiation. The witness, like the previous other witnesses has given the details of the alleged demand made by the accused and the final agreement for the payment of a cash of `80,000/- and two golden finger rings, a golden bracelet and a wrist watch as dowry to the accused and ¼ kilogram of golden ornaments to the bride and that the complainant's side has to bear the marriage expenses. This witness also stated about the cruelty said to Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 28 have been meted to the complainant, on the similar lines as narrated by the previous witnesses.
In his cross-examination, the witness has stated that the Police have not enquired him in the matter.
18. PW-7(CW-9) - Smt. Ramadevi, who claims that she knows both the accused and the complainant stated that, she was a neighbour of CW-2 and that she was aware of the demand for dowry made by the accused and acceptance of the same by the accused. She too has given the details about the demand and acceptance as was narrated by the previous witnesses. The witness has also stated that, the accused, even after marriage of the complainant with accused No.1, continued their demand for additional dowry, including the site property. The witness has stated that, these details were given to her by none else than the complainant. The witness stated that the accused were subjecting the complainant to cruelty continuously and repeatedly. The witness further stated Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 29 that, they did not even take back the complainant and her child to their house. The witness has identified the accused in the Court.
In her cross-examination, the witness stated that she too had attended the marriage negotiation, however, admitted that the Police also have not recorded her alleged statement that she too had attended the marriage negotiation.
19. PW-8 (CW-14) - Sri. Shivarudrappa - the Police Head Constable has stated about he apprehending the accused No.1 and producing him before the Investigating Officer along with his report at Ex.P-9.
20. PW-9 (CW-15) Ranganatha - the Investigating Officer, has given evidence from the stage of he receiving the complaint lodged by the complainant as per Ex.P-1 upto he filing a charge sheet against the accused after completion of the investigation.
Crl.A.No.1169/2012c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 30
21. Learned High Court Government Pleader in his argument submitted that despite the clear, trustworthy and uniform evidence of all the prosecution witnesses about the accused committing the offences alleged against them, still, the Sessions Judge's Court, assuming several things on its own, which were not part of the record, has set aside the judgment of conviction passed by the Trial Court and acquitted the accused persons, as such, the same was erroneous and warrants interference at the hands of this Court. He also submitted that, the evidence of the independent witnesses that they were present during the marriage negotiation and they have also seen the accused demanding and accepting the dowry, has not been noticed and considered by the Sessions Judge's Court, while passing the impugned judgment of acquittal.
Further, stating that even the minimum punishment which was required to be awarded for the offence punishable under Section 3 of the D.P. Act since has not been Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 31 awarded by the Trial Court, the revision petition also deserves to be allowed and the sentence of imprisonment ordered by the Trial Court is required to be enhanced against the accused Nos. 3 to 5.
22. The learned counsel for the appellant (complainant) in Criminal Appeal No.203/2013 adopted the argument addressed by the learned High Court Government Pleader for the appellant-State in Criminal Appeal No.1169/2012, in the matter.
23. Learned counsel for the accused Nos.3 to 5 (respondent Nos. 3 to 5 in both the criminal appeals and also the revision petition herein) in his argument submitted that the non-examination of Sri. Kuntaiah - the senior uncle of the complainant in whose house the marriage negotiation is said to have taken place creates a serious doubt in the case of the prosecution.
Crl.A.No.1169/2012c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 32
Similarly, the non-examination of the marriage broker
- Smt. Jayamma and the father of the complainant also creates a doubt in the case of the prosecution.
Learned counsel further submitted that there is delay in filing the complaint. If at all the complainant was subjected to cruelty after four months of her marriage, she should not have gone to her parents house, but should have lodged a complaint against the accused.
Learned counsel also stated that there is variation in the date of giving the alleged dowry to the accused, which makes their evidence of the prosecution witnesses doubtful and suspicious.
Finally, stating that since the present appeals are against the judgment of acquittal, the Court must be very cautious in appreciating the evidence and relying upon a judgment of the Hon'ble Apex Court in the case of CHANDRAPPA AND OTHERS VS. STATE OF KARNATAKA reported in (2007) 4 Supreme Court Cases 415, the learned Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 33 counsel prayed to dismiss the appeals and also the revision petition.
24. In Chandrappa's case (supra), the Hon'ble Apex Court with respect to precautions to be taken by a Court in a Criminal Appeal against the judgment of acquittal, had, after referring to several of its previous judgments, was pleased to lay down the general principles in that regard in paragraph 42 of its judgment as follows:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 34 language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court "
25. PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6 have specifically stated that they all participated in the marriage negotiations held about fifteen days prior to the date of the marriage between the complainant and accused No.1. They have also stated that said marriage negotiations took place in the house of one Sri Kuntaiah, senior uncle of the complainant. No doubt, as contended by learned counsel for accused Nos.3 to 5, the said Kuntaiah was not examined Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 35 as a witness by the prosecution, however, the evidence of PW-1 to PW-6 about the marriage negotiation in the house of said Kuntaiah has not been specifically denied from the accused side. It is not the specific evidence of any of the witnesses among PW-1 to PW-6 that the marriage talks were held between said Kuntaiah and accused alone. Further, none of these witnesses have specifically stated about the participation and involvement of said Kuntaiah in the marriage negotiation. However, even after taking that since Kuntaiah being the uncle of the complainant and in his house the marriage negotiation took place, as such, he too must have participated in the marriage negotiation, still, since other witnesses i.e., PW-1 to PW-6, who also claims to have participated in the marriage negotiation, have given their evidence, the non-examination of said Kuntaiah is not fatal to the case of the prosecution. As such, the argument of learned counsel for accused Nos.3 to 5 on the said point is not acceptable.
Crl.A.No.1169/2012c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 36
26. About the participation of PW-1 to PW-6 in the marriage negotiation, each of the witnesses have spoken about the presence of others along with PW-1 to PW-6 in the said talks. More importantly, the complainant has in her evidence stated about the presence of her parents, brothers and PW-5 in the marriage talks. Similarly, the mother of the complainant has stated about the presence of CW-5 (PW-3) Siddappa, CW-6 (PW-5) Venkataraju and CW-8 (PW-4) Lakshmamma, also in the marriage talks. Therefore, the presence and participation of PW-1 to PW-6 along with father of the complainant and few others in the marriage talks is established.
27. All the witnesses from PW-1 to PW-6 have uniformly and consistently stated as to what transpired in the marriage negotiation. They have stated that accused demanded for a larger quantum of valuables as dowry i.e., half kg. of gold, cash, ornaments, dress materials, however, after negotiation, the same was reduced and agreed that Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 37 the bride side should give quarter kilogram of gold in the form of ornaments to the bridegroom and a golden bracelet, two finger rings, golden chain, wrist watch and dress material and also a cash of `80,000/- to accused No.1. The evidence of these witnesses further establishes that there was a demand from the accused side for the said dowry. However, none of these witnesses have in specific terms stated that, among the five accused, who made the specific demand for dowry. Still, a careful study of the evidence of PW-1 to PW-6 go to show that there was demand made for the dowry from the accused side.
28. PW-1, PW-3, PW-5 and PW-6 have stated that in the said marriage talks, all the accused had come, however, PW-2, the mother of the complainant and PW-4 - relative and neighbour of parents of the complainant, have not specifically stated as to who are all from the accused side, participated in the marriage talks, but, they stated that the persons from accused side also had come. However, none Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 38 of these witnesses have stated as to whether such a demand was even made by accused No.4 and accused No.5 also, who were admittedly the younger brother and sister of accused No.1 at that time.
The accused No.1 was the proposed bridegroom. Accused Nos.2 and 3 are the parents of the proposed bridegroom. As such, being elderly persons, the parents of the bridegroom and bridegroom would generally participate and discuss in the marriage negotiation and discuss the terms of the marriage. The elder brothers and sisters of the proposed bridegroom also may participate and negotiate the terms. However, generally the younger to the proposed bridegroom would not take lead and put the terms in the negotiation, more particularly, with respect to the dowry when their parents would be there in the negotiation. That being the general scenario in a pre-marriage negotiation and talks, if there are exceptions like the younger ones also participating in the marriage negotiations and putting terms Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 39 of negotiations, then, the Court would expect a specific statement in the evidence from any of the prosecution witnesses who claims to have participated in the marriage negotiation.
In the instant case, the accused Nos.4 and 5, who were admittedly the younger brother and sister of accused No.1, though might have participated in the marriage negotiation, but, in the absence of any specific evidence from any of the witnesses among PW-1 to PW-6 that they too have played a specific and significant role in the alleged demanding the dowry amount, it cannot be concluded that accused Nos.4 and 5 also participated in demanding the dowry from the complainant's parents.
29. Therefore, the evidence of PW-1 to PW-6, more specifically PW-3, PW-5 and PW-6 though establishes the presence of accused No.4 and accused No.5 also in the marriage talks, but, by virtue of above analysis of the evidence and observations, it is not safe to hold that even Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 40 accused No.4 and accused No.5, who were shown to be aged about 30 and 26 years respectively, also joined the remaining accused in placing the demand for dowry. As such, it cannot be concluded that the prosecution though has proved the participation of accused Nos.1, 2 and 3 in the marriage negotiation and demanding dowry from the complainant's family, which is an offence punishable under Section 4 of D.P.Act, however, it has not proved that accused Nos.4 and 5 also made such demand for dowry.
30. According to PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6, it is not just that the accused demanded for dowry, but, they also accepted the dowry given to them by the parents of the complainant. All these witnesses have stated that the dowry as agreed in the marriage negotiation were given to the accused.
PW-1 - the complainant has stated that a cash of `80,000/- was given in the hands of her mother-in-law i.e., accused No.3, one week prior to the marriage. Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 41 The golden ornaments were given to her and to her husband by her parents at the time of marriage. The witness has also identified a seizure panchanama at Ex.P-2 stating that subsequent to her complaint to the complainant-Police, they had gone to the house of the accused and seized several of the golden ornaments. The witness has also given the details of the ornaments alleged to have been seized under Ex.P-2. The witness has identified the accused in the Court.
The witness has also identified gold chain, gold ring and a wrist watch at MO-1 to MO-3 stating that they were given to accused No.1 from her parents as dowry. The witness has categorically stated that at the time of her marriage, her parents' family had given quarter kilogram of gold and it is wearing golden ornaments, she had joined her matrimonial home. Then, her mother-in-law got all those ornaments worn by her removed and kept in an almirah, but, did not returned those ornaments to her. Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 42 With this evidence, she stated and restated that the dowry demanded by the accused in the form of cash and gold were given to them by her parents' family.
In her cross-examination, though attempts were made to show that her father was in a small job and that her family was financially not in a sound position to pay the dowry as alleged to have been demanded by the accused, however, the witness did not admit those suggestions as true and stated that at the time of her marriage, her father was in service, so also, her three brothers were also working in the college. However, her statement that one week prior to the marriage, a sum of `80,000/- was given to accused No.3 in cash and at the time of marriage, golden ornaments were given to her and her husband was not specifically denied in her cross-examination.
31. PW-2- the mother of the complainant also has stated in her evidence that as per the marriage negotiation talks, a sum of `80,000/- in cash was given to the accused Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 43 jointly by herself and her husband. At the time of marriage, the remaining gold ornaments and watch were given. The witness further stated that all the ornaments given in connection with the marriage have been retained by the accused themselves.
Even PW-2 also stated in her cross-examination that at the time of marriage of her daughter, her husband, as well her three sons were employed. She also denied that they had no financial capacity to give such a dowry to the accused. However, even in the cross-examination of this witness also, no specific denial suggestion was made from the accused side, denying the statement made by the witness that one week prior to the marriage, a cash of `80,000/- was given by her to the accused and golden ornaments were given at the time of the marriage.
32. PW-3 and PW-4 also have stated in their evidence that as per the marriage negotiation talks, the accused were given with `80,000/- cash, golden ornaments and Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 44 quarter kilogram of gold to the bride. PW-3 in his cross- examination has stated that about fifteen days prior to the marriage, `80,000/- was given to the accused.
Even in the cross-examination of these two witnesses also, no specific denial suggestion was made denying the evidence of these witnesses that as per the marriage talks, `80,000/- cash and golden ornaments were all given to the accused.
PW-5 has followed PW-3 and PW-4 and stated that as per the marriage negotiation talks, cash and ornaments were given to accused No.1 at the time of marriage. Even in his cross-examination also, he has reiterated that the cash and ornaments were given on the day of the marriage.
The evidence of PW-5 that at the time of marriage, all the items demanded by the accused were given to them has not been denied in his cross-examination, except making a Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 45 suggestion that the witness is giving a false evidence. The witness has not admitted the said suggestion as true.
PW-6 has also stated in his evidence that at the time of marriage, all those items that were agreed to be given to the accused in their negotiation were given by the father of the complainant to the accused.
In the cross-examination of PW-6, which is only of two sentence, it was elicited that the police had not enquired him in the matter. However, the Investigating Officer i.e., PW-9 (CW-15) E.R.Ranganath has stated that he has recorded the statement of even this witness also. Therefore, it was required from the accused side to cross- examine the witness even upon his statement that all the articles that were demanded by the accused were given to them at the time of marriage by the father of the complainant. Since the accused did not cross-examine the witness on those statements, the statements of witness Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 46 about both demand for dowry and acceptance of dowry by the accused have remained undenied.
33. The above evidence of PW-1 to PW-6 of the acceptance of dowry by the accused though does not specifically mention as to whether dowry was accepted even by accused No.4 and accused No.5 also, but, the evidence of PW-1 and PW-2 clearly go to show that a cash of `80,000/- was given in the hands of accused No.3 only.
Further according to PW-1, the golden ornaments weighing a quarter kilogram, wearing which, she had been to her matrimonial home, were got removed by her mother-in-law i.e., accused No.3 and she kept them in an almirah which has not been returned to her (PW-1) till the date of her evidence. Therefore, apart from a cash of `80,000/-, even the golden ornaments which were given as dowry were also taken by accused No.3 - mother-in-law of the complainant. Thus, it is established beyond doubt that, apart from demanding dowry, accused No.3 has also Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 47 accepted and collected the dowry which is an offence punishable under Section 4 of Dowry Prohibition Act, 1961.
34. The trial Court though in a short analysis of evidence has held the accused liable for the alleged offence punishable under Sections 3 and 4 of Dowry Prohibition Act, however, the Sessions Judge's Court observed that the evidence led by the prosecution on these lines does not corroborate the contents of the complaint. It also observed that the gold and ornaments given were only as a custom, but, not as a dowry. It also observed that evidence of PW-5 is not clear as to when exactly the dowry articles were given and his statement is at variation to that of PW-1 to PW-4.
The analysis made above would go to show that the complaint of the complainant and statements of PW-2 to PW-6 about the demand and acceptance of the dowry by the accused have come in uniformity. The evidence of these witnesses has also come in consonance with their statements. Except that of PW-5, who has stated that the Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 48 demanded dowry in the form of cash and gold were given to the accused on the day of marriage, whereas, according to other witnesses, cash was given a bit earlier and the gold was given on the day of the marriage. The same is not a major variation affecting the case of the prosecution since the sum and substance of evidence of these witnesses is that the accused had specifically demanded for dowry and they accepted the dowry given to them as per their demand. The quantum of the dowry, with its description, also has been uniformly narrated by these witnesses without any variation. As such, the Sessions Court's observation of the alleged variation and discrepancy is not properly founded so as to disbelieve the case of the prosecution.
35. PW-1 has stated that four months after her marriage, the accused started demanding additional dowry to be brought by her from her parents house. She has also stated that once such demand made by her husband by Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 49 subjecting her to cruelty for a sum of `20,000/- was met by her parents. The witness has also stated that being not satisfied with that additional dowry of `20,000/-, the accused started demanding one more lakh of rupees to be brought by her from her parents house and in that connection, the accused were subjecting her to cruelty. The witness has even made it clear that, after giving birth to a child, none of the accused visited her either to see her or the child. Further they refused to receive her back to the house stating that unless she brings one lakh rupee, they would not admit her and her child to their house. The witness made it very clear that her father had even been to the house of the accused requesting them to receive his daughter i.e., the daughter-in-law of the family of the accused, still, they refused to receive her until she meets their demand for a lakh of rupee. PW-1 has stated that it was thereafter, she lodged the complaint with the police. Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 50
She has maintained the very same stand even in her cross-examination also. She even stated in her evidence that as on the date of her evidence also, she was ready and willing to join the family of her husband.
The evidence of PW-2 fully corroborates the evidence of PW-1 on the above point. Being the mother of the complainant, she too has stated that at the demand made by the accused for additional dowry and since they subjected her daughter to cruelty, these people could able to pool up a sum of `20,000/- and given it to the accused, thus, met their demand.
In her cross-examination, the witness has stated that the said sum of `20,000/- was given by her husband in the hands of one Siddappa, which was in turn given to the accused. No doubt, said Siddappa was not examined by the prosecution. However, the contention of the learned counsel for respondents that non-examination of said Siddappa is fatal to the case of the prosecution, Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 51 is not acceptable since the evidence of PW-2, who is none else than the lady who had given the additional dowry, that too, being the mother of the complainant, inspires confidence to believe the same and there is no reason to suspect her evidence on the said point.
36. In addition to the above, PW-3, PW-4, PW-5 and PW-6 have also stated about the demand made by the accused for additional dowry and their constant subjecting the complainant for cruelty. PW-3, PW-5 and PW-6 have also stated that at the continued ill-treatment of the complainant by the accused, they held a panchayath, however, the accused did not stop their ill-treatment against the complainant. As analysed above, the evidence of PW-6 on the said point has not been denied in his cross- examination.
PW-4 has made it clear that the continued cruelty upon the complainant by the accused has been told to her by none else than PW-1 herself. PW-5 has stated that the Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 52 parents of PW-1 were telling him that their daughter (PW-1) was being subjected to cruelty by the accused. The evidence of these witnesses would clearly proves that even after meeting the demand for additional dowry for a sum of `20,000/-, the accused by forwarding their further demand for another sum of `1,00,000/-, were constantly subjecting PW-1 to cruelty. Since PW-1 was residing with accused Nos.1 to 5 after her marriage, which fact has not been denied by the accused, all the accused including accused Nos.4 and 5 also have subjected the complainant for cruelty.
37. PW-1 in her evidence has stated that during her stay in her matrimonial home, while she was pregnant, the accused had let a snake inside and made it to bite her, thereafter, she suffered abortion. No doubt, she has not stated the same in her complaint at Ex.P-1, the accused also have not established the said statement as an improvement made by her. Still, even after taking that Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 53 her said statement, so also, the statement of PW-2 on the similar line is an improvement, still, the other major part of evidence of PW-1 and PW-2, which is further corroborated by the evidence of PW-4, PW-5 and PW-6, as observed above, clearly go to establish that the complainant was subjected to ill-treatment and cruelty by the accused, including accused Nos.3, 4 and 5.
However, the Sessions Judge's Court even in the absence of there being any proving of alleged contradiction by the accused in the evidence of PW-1 and PW-2 in a manner known to law, itself assumed the presence of few contradictions and improvements in the evidence of PW-1 and PW-2, which it termed as a material improvement also and proceeded to hold that the evidence of PW-1 and PW-2 cannot be believed, which led it to pronounce a judgment of acquittal. It also observed that PW-1 did not disclose about accused asking to sleep with other persons visiting her house, as such, her statement cannot be believed. Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 54 It may be true that the witness might not have disclosed the same in her complaint at the earliest, still, excluding the said aspect of alleged compulsion to sleep with others, the remaining portion of the evidence of PW-1, which is corroborated by the evidence of PW-2 to PW-6, as analysed above, proves beyond reasonable doubt that the complainant was subjected to cruelty from the accused, including accused Nos.3, 4 and 5.
38. The learned counsel for the respondents/accused in his argument also submitted that there is inordinate delay in lodging the complaint, the same, creates a doubt in the mind of the Court.
It is not in dispute that the marriage of the complainant with accused No.1 was performed on 23.03.1998. According to the complainant, for few months, her husband and other accused took care of her well and later started demanding for additional dowry in the form of cash and valuables. The complainant has also stated that Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 55 after she delivered a boy child, none of the accused visited her nor the child. She has also contended that several attempts were made by her parents to see that accused take back the complainant to their family and permit her to stay with them. PW-1, PW-2, PW-3, PW-5 and PW-6 have all stated about holding a panchayath in that connection, however, the accused did not receive the complainant back to their house. The said panchayath is said to have been held after the complainant giving birth to a male child and after she waiting for considerable time, the accused not taking her with her child back to their house. Thus, lot of time has gone there in the complainant and her family people making efforts for reunification of the complainant with her husband and his family.
The complainant in her complaint at Ex.P-1 itself has stated that on 09.11.2002, herself and her father went to the house of the accused, where her father asked the accused as to why they did not receive his daughter back, Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 56 however, the accused refused to take her back stating that unless the father of the complainant pays them a lakh of rupee as dowry, they would not take them back. Stating so, they also raised their voice, scolded him and sent them back. It is on the very next day i.e., on 10.11.2002, she has lodged the complaint with the complainant-Police. Therefore, the argument of learned counsel for the respondents that due to the alleged delay, the case of the prosecution creates doubt to believe the same, is also not acceptable.
39. Thus, the evidence led by the prosecution after its careful scrutiny establishes the guilt against the accused as observed above. As such, the accused who were initially convicted by the trial Court, though were acquitted by the Sessions Judge's Court and being the accused in a criminal case also had a presumption of innocence, as such, doubly benefiting the presumption of innocence, still, the evidence Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 57 led by the prosecution proves the alleged guilt against them as analysed above.
The above analysis also shows that the Sessions Judge's Court has by its improper reasoning on some aspects and no reasoning on several aspects, has pronounced an erroneous judgment of acquittal of the accused from all the offences. As such, the impugned judgment warrants interference in it.
40. The trial Court by its order on sentence has sentenced the accused to undergo simple imprisonment for a period of two years each and to pay a fine of `1,000/- each and in default of payment of fine, to undergo simple imprisonment for one day each for the offence punishable under Section 498-A of IPC. It has further sentenced the accused to undergo simple imprisonment for a period of two years each and to pay a fine of `15,000/- each and in default of payment of fine, to undergo simple imprisonment for four days each for the offence punishable under Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 58 Section 3 of Dowry Prohibition Act, 1961. It has also sentenced the accused to undergo simple imprisonment for a period of six months each and to pay a fine of `1,000/- each and in default of payment of fine, to undergo simple imprisonment for one day each for the offence punishable under Section 4 of Dowry Prohibition Act, 1961. It is seeking enhancement of the sentence, particularly with respect to Section 3 of Dowry Prohibition Act, the State has preferred Criminal Revision petition No.1026/2012.
The argument of learned High Court Government Pleader for the petitioner therein is also that, since the Dowry Prohibition Act prescribes a minimum punishment of five years imprisonment for the offence punishable under Section 3 of the Dowry Prohibition Act, the sentence ordered by the trial Court, which is of only two years, is less than the minimum sentence, as such, it is required to be enhanced.
Crl.A.No.1169/2012c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 59
41. It is the sentencing policy that the sentence ordered should not be either exorbitant nor for name sake for the proven guilt. It must be proportionate to the gravity of the proven guilt for which the accused is found guilty of.
42. Admittedly, the accused Nos.1 and 2 are reported to be dead. Accused No.3 is the mother-in-law of the complainant, who is also a Senior Citizen in her age. Accused No.4 is the brother-in-law, who according to the learned counsel for the petitioner, is married and set-up with his family. Accused No.5, who is the sister-in-law of the complainant and was unmarried at the time of incident, is also now said to be married and has set-up her own independent family. The alleged offence is said to have taken place immediately after the marriage of the complainant with accused No.1, which was in the year 2002. All these aspects have been borne in mind. However, the minimum punishment prescribed under Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 60 Section 3 of Dowry Prohibition Act is required to be imposed in the matter.
43. Hence, I proceed to pass the following order:
ORDER [i] The Criminal Appeal No.1169/2012, Criminal Appeal No.203/2013 and Criminal Revision Petition No.1026/2012 are partly allowed.
[ii] The judgment of acquittal dated 09.03.2012, passed by the learned Presiding Officer, Fast Track Sessions Court-XVII, Bengaluru City, in Criminal Appeal No.91/2010, confining to accused No.3 - Smt.Jayamma, wife of Ramakrishna (respondent No.3 herein), accused No.4 - Cheluvaraj @ Cheluva, son of Ramakrishna (respondent No.4 herein) and accused No.5 - Smt.Abhinaya, wife of Niranjan (respondent No.5 herein), all are residing at No.1234/B, 8th Cross, Chandra Layout, Bengaluru- 560 040, for the offence punishable under Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 61 Section 498-A of Indian Penal Code, 1860 and acquitting accused No.3 - Smt.Jayamma of the offences punishable under Sections 3 and 4 of Dowry Prohibition Act, 1961, stands set aside.
[iii] The judgment passed by the learned Presiding Officer, Fast Track Sessions Court-XVII, Bengaluru City, in Criminal Appeal No.466/2010, dated 09.03.2012, is set aside.
[iv] The judgment of conviction passed by the learned VIII Addl.Chief Metropolitan Magistrate, Bengaluru, in C.C.No.6008/2003, vide its judgment dated 05.01.2010, and confining to holding the accused No.3 - Smt.Jayamma, accused No.4 -
Cheluvaraj @ Cheluva and accused No.5 -
Smt.Abhinaya, (respondent Nos.3, 4 and 5 herein respectively) guilty for the offence punishable under Section 498-A of Indian Penal Code, 1860, stands confirmed, so also, holding accused No.3 - Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 62 Smt.Jayamma, guilty for the offences punishable under Sections 3 and 4 of Dowry Prohibition Act, 1961, stands confirmed.
[v] The order on sentence passed by the trial Court against accused No.3 - Smt.Jayamma, accused No.4
- Cheluvaraj @ Cheluva and accused No.5 -
Smt.Abhinaya, for the offence punishable under Section 498-A of Indian Penal Code and order on sentence passed against accused No.3 -
Smt.Jayamma for the offence punishable under Section 4 of Dowry Prohibition Act, 1861, stands confirmed.
[vi] The order on sentence passed by the trial Court holding the accused No.3 - Smt.Jayamma, guilty for the offence punishable under Section 3 of Dowry Prohibition Act, 1961, is modified and enhanced. The accused No.3 - Smt.Jayamma shall undergo simple imprisonment for a period of five years, Crl.A.No.1169/2012 c/w Crl.A.No.203/2013 & Crl.R.P.No.1026/2012 63 however, the fine amount and the default sentence ordered by the trial Court for the said offence against accused No.3 remains unaltered.
All the sentences shall run concurrently. The period of judicial custody undergone, if any, by the accused shall be given set-off under Section 428 of Code of Criminal Procedure, 1973.
The accused Nos.3, 4 and 5 are entitled for a free copy of this entire judgment immediately.
Registry to transmit a copy of this order to both the trial Court and also to the Sessions Judge's Court along with their respective records forthwith for doing the needful.
Sd/-
JUDGE BMV*/bk