498A accused acquitted with 340 CrPc

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY

Dated this the 08th day of November 2017 Present:

Sri S.Nataraj, B.A.L., L L.B., Chief Metropolitan Magistrate, Bengaluru C.C.

No.3862/2013

Complainant : State by Kodigehalli Police, Bengaluru City (By Sr. APP)

-V/s-

Accused : 1. Harsha s/o Nagaraju, 36 yrs,

2. Prabhamani w/o Nagaraju, 56 yrs,

3. Vasundara d/o Nagaraju, 30 yrs, (All are R/at No.165, 6th Cross, Defence Colony, Sahakaranagara, Bengaluru-92) Ph.No.8095170119 (By R.M.D.R. Chavan – M.T.Nanaiah & Associates)

Date of offence : 08-09-2011 to 28-01-2012 (As per F.I.R.)
Offences : U/S.498(A) of IPC and Section 3, 4 of D.P.Act

Plea of the accused : Accused No-1 to 3 pleaded not guilty

Final order : Accused No.1 to 3 are Acquitted

Date of Judgment : 08-11-2017

-: J U D G M E N T U/S 355 of Cr.P.C. :-

The Police Inspector of Kodigehalli Police Station has filed charge sheet against accused No.1 to 3 for the offences punishable under Section 498(A) of IPC and Section 3, 4 of D.P. Act.

2. The case of prosecution in brief is that-

The marriage of CW1 Supriya.D.A. was solemnized with accused No.1 on 08-09-2011 at Siddeshwara Convention Hall, Tumkur. At the time of marriage, the parents of CW1 gave gold jewelry, silver articles and cash amount as dowry to the accused. After marriage, when CW1 was residing in the matrimonial home with the accused persons at Sahakaranagara, Bengaluru, they used to raise quarrels on trivial issues and harass, torture, abuse her saying that she has gone mad. Further, the CW1 was not given food and the accused harassed CW1 both physically, mentally and also demanded cash amount of Rs.6,00,000/- as dowry and thrown her out of the house. Thereby the accused persons alleged to have committed the aforesaid offences.

3. Accused No.1 to 3 are on bail. After furnishing the charge-sheet copies, on the basis of materials placed before the Court, Charges against accused No.1 to 3 was read over and explained to them. The accused persons pleaded not guilty and claimed to be tried.

4. The prosecution in order to prove its case has examined in all seven witnesses as PW1 to 7 and got marked Ex.P1 to 21 documents. The documents at Ex.C1 and 2 are got marked during the cross- examination of PW2.

5. The accused No.1 to 3 are examined under Section 313 of Cr.P.C. They denied the incriminating evidence, which appeared against them and also filed their separate statements with documents. On behalf of accused, the learned counsel for defence got marked the documents at Ex.D1 to 21 during the cross-examination of PW1 and Ex.D22 during the cross-examination of PW6.

6. It is to be noted here that, the accused No-1 filed Application under Section 340 R/W 195 of Cr.P.C., to take cognizance of the offences under Section 191, 192 and 193 of IPC against PW1, 2 and 6, wherein on 17-10-2017, it was ordered that the said application will be considered at the time of passing final judgment of the case.

7. Heard arguments on both sides. The prosecution also filed written arguments.

8. The points that arise for my consideration are-

1) Whether the prosecution proves beyond all reasonable doubt that accused No-1 to 3 have committed the offences punishable under Section 498(A) of IPC and Sec.3, 4 of D.P. Act?

2) Whether accused No-1 proves that it is expedient in the interest of justice that inquiry should be made against PW1, 2 and 6 for giving false evidence before the court under Section 340 R/W 195 of Cr.P.C.?

3) What order?

9. My answer to the above points are as under.

Point No-1: In the Negative
Point No-2: In the Affirmative
Point No-3 : As per final order
REASONS
Point No-1 and 2:
10. As both these points are inter-connected, they are taken up together for consideration to avoid repetition of discussion.

11. It is the specific case of prosecution that the complainant is the wife of accused No-1. At the time of marriage, the parents of complainant had given gold ornaments, silver articles and cash amount to the accused persons as dowry. When the complainant stayed with the accused persons in the matrimonial home, they have ill-treated the complainant both physically and mentally, by demanding additional dowry and thrown her out of the house.

12. The accused persons have admitted that accused No-1 is the husband of complainant, accused No-2 is the mother and accused No- 3 is the sister of accused No-1. The complainant’s marriage was performed with accused No-1 on 08-09-2011 at Sri Siddeshwara Convention Hall, Tumkur. Ex.P3 is the marriage invitation card and Ex.P4 to 9 are the marriage, reception photos.

13. The accused persons however dispute the alleged demand of gold, silver from the parents of complainant and receipt of same as well as cash amount as dowry at the time of marriage and subsequent to marriage. The accused have also denied and disputed that they have demanded dowry of Rs.6,00,000/-, by giving physical and mental harassment to the complainant, by throwing her out of the matrimonial house.

14. On the other hand, in the written statement to 313 Cr.P.C. statement, the accused persons have contended that they did not make any demand, no dowry was given or taken or demanded and no amount was given to them. It is also contended that they did not harass the complainant in any manner during her stay at matrimonial home. PW1 was treated exceptionally well, all her demands were met. Therefore, it is for the prosecution to prove its case against the accused beyond all reasonable doubt and this case is not exception to the said principle.

15. In respect of Section 3 and 4 of Dowry Prohibition Act, Section 8-A of D.P. Act reads as under:

8-A : Burden of proof in certain cases – Where any person is prosecuted for taking or abetting the taking of any dowry under Section 3, or the demanding of dowry under Section 4, the burden of proving that he had not committed an offence under those sections shall be on him.
The constitutional validity of said provision was challenged before the Hon’ble High Court, wherein after considering the provision, the Full Bench of Hon’ble High Court of Karnataka reported in ILR 1993 KAR 3035 in the case of Harikumar vs State of Karnataka, held in para No.20 as follows –

20. Before parting with this discussion, we may however mention that the prime burden of proof rests on the prosecution to establish the basic facts and ingredients for bringing home to the accused the offence, under Section 3 or Section 4 of the Act and the prosecution will have to establish its case in this connection beyond reasonable doubt. Once that happens, then only the burden will shift on the accused under Section 8A of the Act, to show that he has not given or taken or abetted any giving or taking of any property or valuable security in connection with the marriage of parties or that he has not demanded directly or indirectly from the parents or the relatives of the bride or bridegroom as the case may be, any dowry, meaning thereby such demand if any is not in connection with the marriage of the said parties. The said burden of proof on the accused as contemplated in Section 8A of the Act can be discharged on preponderance of probabilities. In this connection, we may refer to the Decision of the Supreme Court in the case of TRILOK CHAND JAIN vs STATE OF DELHI, wherein the Supreme Court dealing with presumption under Section 4(1) of the Prevention of Corruption Act, 1947, has clearly held that the burden on the accused for rebutting the presumption can be discharged by showing mere preponderance of probabilities in his favour and that it is not necessary to establish his case beyond reasonable doubt.

16. In view of above decision, the initial burden to establish beyond reasonable doubt the ingredients of Section 3 and 4 is on the prosecution. Once Point No-1 to 4 of Para 6 of said judgment are established by the prosecution, the burden would shift on the accused that such demand if any by them was not in connection with the marriage of said parties on the basis of preponderance of probabilities. Keeping in mind, the above said principles, whether the prosecution established the case is required to be considered by looking into the oral and documentary evidence on record.

17. The complainant PW1 in her examination in chief deposed that at the time of marriage, her parents had given gold ornaments, silver articles and cash amount as demanded by the accused. According to prosecution, a gold long havala chain, two bangles of havala, hangings of havala worth Rs.4,50,000/-, one gold plain necklace weighing 35 grams, plain bangle weighing 30 grams, plain hangings weighing 16 grams, plain ring weighing 10 grams worth Rs.2,55,000/-, plain chain weighing 25 grams for bridegroom, plain bracelet weighing 25 grams, plain ring weighing 15 grams worth Rs.2,00,000/-, silver articles worth Rs.1,10,000/- and cash of Rs.50,000/- for clothes to bridegroom were given. The above said articles were handed over to accused No-2, after marriage when PW1 stepped into the matrimonial home, certain gold jewelry were also given to the accused No-1.

18. PW2 Anand, the father of complainant in his examination in chief has deposed in similar terms to that of his daughter. He has also deposed that Rs.3,00,000/- was spent for engagement ceremony. PW4 Shivaprasad and PW6 Lokeshachar being the independent witnesses who are stated to have attended the marriage of complainant have deposed in support of the prosecution.

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19. Apart from oral evidence, the prosecution has marked Ex.P1 complaint, wherein it is stated regarding the gold, silver and cash amount given to the accused, as demanded by them. During the course of cross-examination of PW1 and 2, they have admitted that the marriage of complainant with accused No-1 was performed as per their customs. They have also admitted that at the time of marriage, as per the customs prevailing in their community, the habit of giving and taking of gold, silver articles, is as per their capacity.

20. The complainant PW1 in her cross- examination at page No.5, para 2 admits that there is no document to show that at the time of marriage, one platinum ring and clothes were given to accused No-1. According to PW1, there are photographs and the same are produced at Ex.P12 to 18. The said photographs as well as Ex.P19 to 21 – C.D.’s are marked, subject to the objections of accused counsel. But the same are not proved by prosecution, by filing certificate under Section 65b of Evidence Act or by examining the person who had taken the photographs, video. Without certificate, the said documents are inadmissible in evidence and cannot be looked into. PW1 pleads ignorance as to where the platinum ring was purchased by her father. However, PW1 admits that on 15-04-2011, the accused No-1 himself had purchased two platinum rings, one is for himself and another one to her. The receipts for having purchased the said articles were confronted to her. She admits the same, which are marked at Ex.D1 and 2 standing in the name of accused No-2 and 1 respectively, purchased prior to marriage.

21. PW1 in page No.6 of her cross-examination admits that her parents have purchased gold jewels from time to time, since her young age for her marriage. The said gold jewels were purchased with an intention of her marriage. At the time of marriage, some of the gold ornaments were purchased, she does not know as to where those gold jewels were purchased by her parents.

22. PW2 in his cross-examination stated that at the time of marriage, for having given jewels to accused, no documents are there. But he had collected the gold jewels since the young age of complainant, for which he has produced Ex.C1 and 2 photographs. The said photographs are self explanatory, which does not say that he had given gold jewels to accused. There are no documents on behalf of prosecution that PW2 had purchased gold and silver articles given to accused persons at the time of marriage.

23. According to complainant, the gold jewels were given to the hands of accused No-2 at the time of marriage and also at the time of stepping into the matrimonial home. Whereas the PW2 has given a contradictory version that at the time of Kashi Yathre, the jewels were given to the complainant. The said Kashi Yathre is the part of marriage ceremony. According to accused, the said Kashi Yathre is performed subsequent to marriage.

24. PW1 during her cross-examination deposed that there are no documents to show that gold articles were given to accused persons. PW1 further deposed that she was not present at the time of alleged payment of Rs.50,000/- given as cash to accused No- 1 during engagement ceremony. Further, there are no documents produced before the court, for having given Rs.50,000/- to accused No-1. PW1 admits that the accused No-1 had purchased two Suits one for engagement and another for Reception. The complainant stated that the said Suits were purchased out of the money given by her father to accused No-1.

But there is no cogent material on record to show that a cash amount of Rs.50,000/- was given to accused No-1.

25. In the cross-examination of PW2 the father of complainant, it is elicited that he is an income tax assessee, he has not disclosed in his income tax returns having spent Rs.3,00,000/- for engagement ceremony. According to him, he has taken loan from L.I.C. If he had really taken loan from L.I.C., certainly there would have been documents to that effect. But no such documents are placed before the court or before the I.O. Hence it is to be inferred that PW2 had not spent Rs.3,00,000/- for engagement ceremony.

26. In the cross-examination of PW2, it is further elicited that he has not declared in his income tax returns regarding the jewels given to his daughter. PW4 Shivaprasad in his cross-examination deposed that as per the customs prevailing in the community of complainant and accused, the bride side gives clothes, gold articles and household articles, similarly the bridegroom side also gives clothes, silver, gold and other articles. Thus, by considering the oral and documentary evidence on record, there is no cogent, acceptable and believable evidence on record that on the demand of accused, the complainant’s parents had given gold, silver and cash amount to accused as a dowry.

27. It is also the allegation of prosecution that the accused persons demanded Rs.6,00,000/- dowry from the complainant’s parents and driven out from their house by ill treating her both physically and mentally. It is also the version of PW1, 2, 4 and 6 that after marriage, accused No-1 had taken the complainant for Honey Moon to Meghalaya, where he treated her as a stranger and harassed her. Admittedly after marriage, the complainant stayed in the matrimonial house for about three months at Sahakaranagar, Bengaluru. The complainant was confronted with Ex.D5 to 8 photos taken at the time of Honey Moon at Meghalaya, which disclose the dress code of complainant. The said photographs does not support the case of prosecution that PW1 was treated as stranger by the accused No-1. On the other hand, the said photographs would depict that PW1 was happy during the Honey Moon and there was no sadness in her face.

28. At page No-11, para 8 of PW1’s cross- examination, it is elicited that at Meghalaya, accused No-1 had purchased clothes to PW1 and accused No-1 had also purchased one shawl to the mother of PW1. If PW1 was not treated properly in the Honey Moon, the accused No-1 would not have purchased clothes to PW1 as well as her mother. It is also the version of prosecution that immediately after marriage, when PW1 came to the matrimonial home, accused No-1 alleged to have stated that he is not interested in marrying her, at the pressure of his parents, he married PW1. If really accused No-1 was not interested in marrying PW1, he would not gone to Honey Moon and spent happy time with PW1. So also, he would not have purchased the clothes to PW1 and her mother.

29. Similarly it is elicited that when PW1 was staying with accused persons at Sahakaranagar, accused No-1 and PW1 had joined for gym and they used to go to gym together and come back. In the cross-examination of PW1 at para 15, it is elicited by confronting Ex.D11 photograph that it was taken at Ice Cream Parlour. Ex.D12 is another photograph confronted to her, wherein she admits that the same was taken in the multiplex cinema hall and Ex.D13 is the photograph taken at the gym. Ex.D14 to 19 photographs are admitted by the complainant, which are taken in home and that Ex.D20, 21 photographs were taken when they had gone to Tumkur with friends. It is also elicited in the same para that after marriage, the complainant came to the house of matrimonial home, accused No-2 had gone to Delhi, stayed about more than a week and thereafter she had gone to America.

30. The copies of passport/visa of accused No-2 and 3 are produced, which disclose that from 26-11- 2011 to 23-01-2012, they were not staying along with accused No-1 and PW1, wherein they had been to America during the said period. It is also elicited that more than one and half months, out of three months during the stay with accused persons in the matrimonial home, accused No-2 was out of matrimonial house. It is also elicited that accused No- 3 for about two months while PW1 was staying in the matrimonial house, was going to work from house. Thus most of the time, PW1 and accused No-1 were in the house. It is also the allegation of prosecution that the accused persons were not providing food to PW1. When accused No-2 and 3 most of the time were not in the matrimonial home and on the other hand, PW1 was staying with accused No-1, under such circumstances, it is highly improbable to believe that the accused did not provide food to PW1. It is also the allegation of prosecution that the accused did not allow PW1 to speak over phone to her parents. But it is admitted that during her stay in the matrimonial home, a landline phone facility was very much available. It is not the case of prosecution that the said landline was locked. On the other hand, it is elicited that the mobile phone was also given by the brother of accused No-1 to complainant with number 8095984311 and she had also sent messages to accused No-1 at Ex.D9. One of such message is that it was sent on 25-02-2012 saying that she need divorce.

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31. Further, in the cross-examination of PW1, it is elicited that she is a B.Sc. Graduate before her marriage and she had not joined any course subsequent to separation with accused No-1. In para No.11, it is elicited that she had joined three months programming course. Therefore, prior to marriage, PW1 had completed degree, after separation with accused No-1, she had not joined any course. Thus, the inference is that during stay with accused No-1 she had joined programming course. From the above said circumstances, if really accused No-1 is not interested in marrying with PW1 and ill treated her, as alleged by the prosecution-

a) the accused No-1 would not have taken the complainant for one week to Honey Moon for Meghalaya,
b) accused No-1 would not have purchased clothes to PW1 as well as her mother,
c) accused No-1 would not have taken PW1 to ice cream parlor and multiplex cinema,
d) accused No-1 would not have allowed the PW1 to join gym along with him,
e) also he would not have allowed the PW1 to join the course,
f) the PW1 would not be happy and the dress code would not be, as depicted in Ex.D4 to 8, 11 to 21 photographs,
32. In the cross-examination of PW1 and 2, it is elicited that accused No-1 is not having hair on his head. PW1 told him that he would look older than her. PW1 and 2 have demanded accused No-1 to take hair transplant treatment at St. John’s Hospital. It is also elicited in para No.11 during the cross-
examination of PW1 that while she was staying with accused at Sahakaranagar, she was admitted to Northside Hospital. She denied the suggestion that she had attempted to commit suicide, for treatment admitted to said hospital. However, in the cross- examination of PW2 – the father of complainant, it is elicited that he had visited the hospital. That the accused had informed him that his daughter had attempted to commit suicide and taking treatment, and he visited the hospital. From the said evidence, it appears that during stay in the matrimonial house, PW1 had attempted to commit suicide. PW1 and 2 or the prosecution have not made allegations against accused regarding the said incident of attempting to commit suicide, due to the willful conduct and harassment at the hands of accused. For the reasons best known to PW1 and 2, they have not stated before the I.O. regarding said incident. In view of suppressing of the said circumstances, an inference can be drawn that there was no harassment or cruelty to PW1 at the hands of accused and PW1 herself had attempted to commit suicide. If really there was any such harassment as alleged by the prosecution, the above said incident would be one of the main circumstances against the accused. In the absence of such circumstances alleged against the accused, it is to be inferred that-

a) the PW1 is not interested in the marital life with accused No-1, as he is not having much hair on his head,
b) she is not interested with accused No-1, as such she had attempted for suicide, and
c) as she is not interested to lead marital life with accused No-1, she had sent message as depicted in Ex.D9 that she needs divorce.
33. The prosecution case is also that the accused physically assaulted the complainant. PW2 in his examination in chief deposed that every day the accused used to assault and beat PW1 and also abused her as gone mad. PW1 in her examination in chief has never stated any such physical abuse by the accused. Moreover, there is no medical evidence on record to show any such injury on account of alleged assault by the accused. Similarly there is no proof on record that the accused used to call the complainant as gone mad. On the other hand, it is elicited in para No-13 of PW1’s cross-examination that she has taken treatment/consultation from Dr.Lokesh Babu who is a Psychiatry. She denies to the suggestion that she was found border personality disorder.

34. PW2 in his cross-examination at page No.7 admits that he has taken PW1 along with accused No- 1 to Tumkur for counseling in Sneha Mano Vikas Hospital. But he denied that his daughter is suffering from psychiatric issues. Nevertheless, there is no cogent evidence to believe that the accused used to call PW1 has gone mad (ºÀÄaÑ).

35. PW1 and 2 in their examination in chief deposed that once after the separation of PW1 with accused No-1, he called her to Majestic, when PW1 had been there, he had insisted her to sign on divorce papers, on her refusal, he had made galata with her. The said incident is denied by the accused. If it is so, the prosecution must have produced the phone call list showing the date on which the accused No-1 had called PW1 to come to Majestic, to get signature on divorce papers. PW1 and 2 admits that in respect of the said incident, no complaint has been made to Upparpet Police. Therefore, there is no material evidence to accept the version of above said witnesses.

36. It is also one of the main allegations of prosecution against the accused that they have demanded dowry of Rs.6,00,000/-, driven out PW1 from the matrimonial home to get dowry from her parental house. In Ex.P1 complaint, the same has been stated. The accused confronted Ex.D10, the complaint lodged by PW1 against accused on 27-06-2012. Ex.P11 is the acknowledgment issued by Kodigehalli Police in respect of Ex.D10 complaint. On perusal of the said complaint, the demand of any dowry muchless Rs.6,00,000/- by the accused from complainant’s parents does not find place. If really, there was a demand of dowry of Rs.6,00,000/- by the accused, the same would have been find place in Ex.D10, the first complaint filed against the accused.

37. PW2, the father of complainant in his examination in chief deposed that one Sachidananda Prasad and Jayanthi had introduced accused No-1 saying that he has completed B.Tech in IIT at Varanasi and getting Rs.3,00,000/- salary per month and working in Zen Tech Company, Electronic City, Bengaluru. PW4 Shivaprasad has also deposed the same thing. In the considered opinion of court, a person drawing salary of Rs.3,00,000/- per month and having own house, car would demand Rs.6,00,000/- dowry from the complainant’s parents is highly improbable and unacceptable.

38. PW1 in her cross-examination dated 11-09- 2017 in para 2 deposed as follows-

2015gÀ°è ºÀÆrgÀĪÀAvÀºÀ «ZÉÒÃzÀ£À ¥ÀæPÀgÀt E£ÀÄß ZÁ°ÛAiÀÄ°èzÉ. KPÀ¥ÀQëAiÀÄ «ZÉÒÃzÀ£É ¥Àqz É ÀÄPÉÆArzÉÝÃ£É JAzÀÄ UÉÆwÛ®è. D ¥ÀæPÀgÀtzÀ°è PÉÆ£ÉAiÀÄ ¨ÁjUÉ AiÀiÁªÀ ¢£ÁAPÀzÀAzÀÄ ºÁdgÀÄ DVzÉÝ JAzÀÄ £É£À¦®è. D ¥ÀæPÀgÀtzÀ°è MAzÀÄ ªÀµÀðzÀ »AzÉ ºÁdgÁVzÉÝ. D ¥ÀæPÀgÀtzÀ°è £À£ÀUÉ KPÀ¥ÀQëAiÀÄ «ZÉÒÃzÀ£À DzÉñÀ DVzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. £À£ÀUÉ E£ÉÆßAzÀÄ ªÀÄzÀĪÉAiÀiÁV ªÀÄUÀÄ ¸ÀºÀ EzÉ JAzÀgÉ ¸ÀļÀÄî. DgÉÆæUÀ¼À «gÀÄzÀÞ £Á£ÀÄ ¸ÀļÀÄî ¸ÁPÀëå ºÉüÀÄwÛÃzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è.
So according to PW1, she does not know about the ex- parte divorce decree passed. She denied of having married another person and giving birth to a child from that marriage.

39. PW2 in his cross-examination at page No.8 deposed on 22-02-2017 that-

£À£Àß ªÀÄUÀ¼ÀÄ «ªÁºÀ «ZÉÒÃzÀ£ÉAiÀÄ£ÀÄß PÉÆÃj Cfð ºÁQzÁÝ¼É JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. £À£Àß ªÀÄUÀ½UÉ «ªÁºÀ «ZÉÒÃzÀ£É DVzÉAiÀiÁ JAzÀÄ £À£UÀ É UÉÆwÛ®è. £À£Àß ªÀÄUÀ½UÉ FUÀ ¨ÉÃgÉ ªÀÄzÀĪÉ- AiÀiÁVgÀĪÀÅ¢®è. £À£Àß ªÀÄUÀ¼ÀÄ FUÀ UÀ©ðü tôAiÀiÁVzÁÝgÉ JA§ «ZÁgÀ £À£ÀUÉ UÉÆwÛ®è. £Á£ÀÄ £À£Àß ªÀÄUÀ¼À §½ «ªÁºÀ «ZÉÒÃzÀ£ÉAiÀÄ §UÉÎ PÉüÀ®Ä ºÉÆÃV®è. FUÀ £À£Àß ªÀÄUÀ¼ÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀįÉè EzÁݼÉ. ªÀÄzÀĪÉAiÀiÁV ªÀÄ£É ©lÄÖ §AzÀ £ÀAvÀgÀ £À£Àß ªÀÄUÀ¼ÀÄ £À£Àß eÉÆvÉ AiÀįÉè EzÁݼÉ.
PW2 being a father of PW1 does not know that his daughter had filed petition for divorce and his daughter has not married another person. He pleads ignorance that his daughter is a pregnant. His daughter is with him in his house since separation from the accused No-1.

40. According to PW6 Lokeshachar, once in fifteen days, he used to visit the house of PW2. He is a friend of PW2 since 25-30 years. During his cross- examination on 27-05-2017, in page No.5, he deposed that he knew about the filing of petition for divorce by PW1, but he does not know whether divorce was granted or not. He had visited last week to the house of PW1. Ex.D22 photograph was confronted to him, he admits that in the photo, PW1 is there. He pleads ignorance that he does not know as to whether PW1 had married again, he voluntarily states that PW1 had not married and not having a child. Ex.D22 photograph is produced to show that PW1 was pregnant. Inspite of it, PW6 had denied the second marriage of PW1 etc.,.

41. In contrary to the evidence of PW1, 2 and 6, the accused persons along with 313 Cr.P.C. Statement produced a notarized copy of order sheet in MC No.1075/2014 filed by PW1 before the Family Court, Bengaluru, for decree of divorce under Section 13(1) (i-a) and (i-b) of Hindu Marriage Act against accused No-1. The said petition was allowed on 14-06-2016 by the Hon’ble V Addl. Prl. Judge, Family Court, Bengaluru and passed exparte decree of divorce with permanent alimony. The said judgment and decree was challenged by PW1 for enhancement of permanent alimony before the Hon’ble High Court of Karnataka in MFC No.6292/2016. Another document filed along with 313 Cr.P.C. is the birth certificate of one Kanasu S.Chethan born on 02-04-2017. The mother’s name of child is Supriya.D.A. i.e., PW1 and father’s name of child is Chethan Kumar.S.G.

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42. Thus, from the above said document, it is evident that PW1 who had filed a petition for divorce had obtained ex-parte decree of divorce. Thereafter, the same was challenged before the Hon’ble High Court of Karnataka for enhancement of permanent alimony. Subsequently, she had married to Chethan Kumar.S.G. From their marriage, Kanasu S.Chethan was born to them on 02-04-2017. But PW1, 2 and 6 though having knowledge about the same had lied before the court. When such being the fact, the version of PW1 and 2 regarding cruelty and demand of dowry by the accused cannot be acceptable. Once the evidence of PW1 and 2 is not believable, it is needless to say that PW4 and 6, who are close friends of PW2, their evidence does not inspire confidence of the court. Above all CW3 B.K.Hema is the mother of PW1 and wife of PW2. She is the material witness for prosecution. For the reasons best known to prosecution, CW3 has not been examined. An adverse inference is to be drawn that the prosecution had not examined CW3 to avoid the truth. In my opinion, the non-examination of CW3 is fatal to the case of prosecution.

43. The accused filed Application under Section 340 R/W 195 of Cr.P.C. to take cognizance against PW1, 2 and 6 for giving false evidence before the court. PW2 is the father of PW1. PW1 and 2 on oath intentionally before the court made a false evidence regarding the marriage of PW1 with S.G.Chethan Kumar and the birth of child by name Kanusu S.Chethan to them. PW6 being the friend of PW2, who visits the house of PW2 once in fifteen days knowing fully well intentionally given false evidence before the court, to use the said evidence in the above case against the accused.

44. PW1, 2 and 6 being legally bound by oath to state truth, but made false statements before the court knowing fully well that PW1 had married to Chethan Kumar.S.G. and a child was born to them, which is punishable under Section 193 of IPC. In my considered opinion, the above said witnesses have given false evidence on oath before the court.

45. The Hon’ble Supreme Court in the case of Swaran Singh v. State of Punjab, (2000) 5 SCC 668 : 2001 SCC (Cri) 190 : 2000 Cri LJ 2780 : AIR 2000 SC 2017 observed that –

Cr.P.C. – S.340(3) – Need for amendment of stressed to eliminate perjury which has become a way of life in law courts – Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Cr.P.C. in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Cr.P.C. (para 36).
46. Subsequently, Section 340(3) (b) of Cr.P.C.
has been amended by Act No.2 of 2006 vide effect from 16-04-2006, wherein the Presiding Officer of the Court may authorize in writing the officer of court to make complaint under Section 340 read with 195 of Cr.P.C.

47. In view of intentional false evidence on oath by PW1, 2 and 6 before the court, in the opinion of the court, it is expedient in the interest of justice that an inquiry should be made into an offence under Section 191 punishable under Section 193 of IPC.

48. PW3 Dinesh is the mahazar witness and PW5 Jagadeesh then PSI had conducted part of the investigation and handed over the case file to PW7. The evidence of PW1 and 2 being interested witnesses is inconsistent. PW4 is the friend of PW2 who had participated in the marriage after 11.00 clock i.e., after marriage and PW6 Lokeshachar who is also a friend of PW2 since 25-30 years, are the interested witnesses. Further, it is pertinent to note here that the I.O. PW7 N.Hanumantharaya has filed charge sheet without seriously investigating into the matter. Even he has not taken much pain to examine the neighbourers or surrounding people of the complainant and accused. He has not seized any ornaments, articles and money pertaining to this case. The case of prosecution is based on surmises and conjunctions. Mere ordinary wear and tear incidents/differences in the matrimonial life, does not attract the ingredients of Section 498(A) of IPC.

49. Therefore, on careful consideration of the oral and documentary evidence available on record, I am of the considered opinion that the prosecution failed to establish the basic ingredients of Section 3 and 4 of D.P. Act at Point No-1 to 4 of Para 6 held in the case of Harikumar cited supra. The evidence on record is insufficient to held guilty of accused persons for the above said offences. Similarly the prosecution failed to prove the guilt of accused for the offence of Section 498(A) of IPC beyond all reasonable doubt that the accused persons by willful conduct meted out cruelty to complainant and harassed her physically, mentally. Hence, I conclude that there is no clear and acceptable evidence on record to prove the so called harassment to complainant either physical or mental by the accused. This court is of the clear opinion that the prosecution has failed miserably to bring home the guilt of accused persons beyond all reasonable doubt and accordingly the accused persons are entitled for clear acquittal. In the result, I answer Point No-1 in the Negative and Point No-2 in the Affirmative. Point No-3:

50. In view of my finding to Point No-1 and 2 as above, I proceed to pass the following:

ORDER Acting under Section 248(1) of are acquitted for the offences punishable under Section 498(A) of IPC and Section 3, 4 of Dowry Prohibition Act.
Their bail bonds shall stand canceled.

The Application filed by accused under Section 340 R/W 195 Cr.P.C. dated 06-10-2017 is allowed.

Under Section 340 (3) (b) of Cr.P.C., the Sheristhedar of C.M.M. Court, Bengaluru is directed to make a complaint under Section 340 (1) (b) R/W 195 (1) (b) (i) of Cr.P.C., against the witnesses i.e., PW1 Supriya.D.A., PW2 D.S.Anand and PW6 Lokeshachar for the offence punishable under Section 193 of IPC, for giving false evidence, as observed in Para No.43, 44 of the judgment, before the jurisdictional court.

Office is directed to provide certified copy of this judgment, depositions of PW1, 2 & 6 and order sheet, judgment/decree in MC No.1075/2014, relevant documents pertaining to MFA No.6292/2016 and birth certificate of Kanasu S.Chethan produced along with 313 Cr.P.C.

statement of accused and also the certified copy of Ex.D22 photo, to the Sheristhedar, so as to make complaint.

Office to submit letter to Hon’ble High Court of Karnataka, regarding disposal of above case as per the directions in Criminal Petition No.7215/2016 dated 13-

10-2017.

(Dictated to the Stenographer on Computer. The computerized print out taken by steno is revised, corrected and then pronounced by me in the Open Court on this day i.e., 08-11-2017) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.

ANNEXURE List of Witnesses examined on behalf of the prosecution:-

PW1 : Supriya
PW2 : D.S.Anand
PW3 : Dinesh
PW4 : Shivaprasad
PW5 : Jagadeesh
PW6 : Lokeshachar
PW7 : N.Hanumantharaya

List of Documents marked on behalf of the prosecution:-

Ex.P1 : Complaint
Ex.P2 : Mahazar
Ex.P3 : Marriage Invitation
Ex.P4 to 9 : Photographs
Ex.P10 : F.I.R.
Ex.P11 : True copy of
Acknowledgement
Ex.P12 to
P18 : Photographs
Ex.P19 to
P21 : C.D.’s pertaining to
Engagement and
Marriage

List of Material objects produced:-

NIL List of Witnesses examined & documents marked on behalf of the defence:

Witnesses – None Documents Ex.D1, 2 : Tax Invoices/Bills Ex.D3 to 8 : Photographs Ex.D9 : Copy of document showing the phone numbers, SMS…
Ex.D10 : True copy of complaint
Ex.D11 to
D22 : Photographs

List of documents marked on behalf of the Court:
Ex.C1 & C2 : Photographs C.M.M., BENGALURU.
08-11-2017 Judgment pronounced vide separate sheets.
ORDER Acting under Section 248(1) of are acquitted for the offences punishable under Section 498(A) of IPC and Section 3, 4 of Dowry Prohibition Act.
Their bail bonds shall stand canceled.
The Application filed by accused under Section 340 R/W 195 Cr.P.C. dated 06-10-2017 is allowed.
Under Section 340 (3) (b) of Cr.P.C., the Sheristhedar of C.M.M. Court, Bengaluru is directed to make a complaint under Section 340 (1) (b) R/W 195 (1) (b) (i) of Cr.P.C., against the witnesses i.e., PW1 Supriya.D.A., PW2 D.S.Anand and PW6 Lokeshachar for the offence punishable under Section 193 of IPC, for giving false evidence, as observed in Para No.43, 44 of the judgment, before the jurisdictional court.

Office is directed to provide certified copy of this judgment, depositions of PW1, 2 & 6 and order sheet, judgment/decree in MC No.1075/2014, relevant documents pertaining to MFA No.6292/2016 and birth certificate of Kanasu S.Chethan produced along with 313 Cr.P.C.

statement of accused and also the certified copy of Ex.D22 photo, to the Sheristhedar, so as to make complaint.

Office to submit letter to Hon’ble High Court of Karnataka, regarding disposal of above case as per the directions in Criminal Petition No.7215/2016 dated 13-10-2017.

Chief Metropolitan Magistrate, Bengaluru.

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