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Different version witness statement 498a Quashed

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 17TH DAY OF MARCH 2014

BEFORE

THE HON’BLE MR.JUSTICE N. ANANDA

CRIMINAL APPEAL No.735/2009

BETWEEN:

STATE OF KARNATAKA
BY POLICE SUB INSPECTOR
KAVALANDE POLICE STATION. … APPELLANT

(BY SRI B VISWESWARAIAH, HCGP)

AND:

1. NANJUNDASWAMY
S/O. LATE MALLAPPA, 32 YEARS

2. NINGAMMANNAMMA
W/O. LATE MALLAPPA, AGE: 60 YEARS
BOTH ARE R/O KAREPURA VILLAGE, NANJANGUD TALUK. … RESPONDENTS
(BY SRI P. MAHESHA, ADVOCATE)

THIS APPEAL IS FILED UNDER SECTION 378(1) (3)
CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGEMENT DATED 28.04.2009 PASSED IN C.C.NO.126/2004, ON THE FILE OF CIVIL JUDGE (JR.DN.) JMFC AT NANJANGUD, ACQUITTING RESPONDENTS 1 2-ACCUSED 1
2 OF OFFENCES PUNISHABLE UNDER SECTIONS 498-A, 323 R/W 34 IPC ALSO OF OFFENCES PUNISHABLE UNDER SECTIONS 3 4 OF THE DOWRY PROHIBITION ACT ETC.

THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

The respondents (hereinafter referred as ‘accused 1 2’) were tried for offences punishable under sections 498A  323 r/w 34 IPC and also for offences punishable under section 3  4 of the Dowry Prohibition Act, 1961 (for short, ‘the D.P.Act’). The learned trial Judge has acquitted accused 1 2 of aforestated offences. Therefore, State has filed this appeal.

2. I have heard Sri B.Visweswaraiah, learned HCGP for State and Sri P.Mahesha, learned counsel for accused 1 2.

3. It is the case of prosecution that accused No.1- Nanjundaswamy married PW1-K.G.Yogamba on 01.06.1997. After marriage, PW1 was living happily in the house of accused 1 2 for a period of two years. Thereafter, accused 1 2 started ill-treating and harassing PW1 for not begetting a child. They were also harassing PW1 to bring a sum of Rs.1,00,000/- as additional dowry from her parental house. Accused No.1 is the son of accused No.2. PW2-K.M.Guruswamy and PW3-Shantharathna are the parents of PW1.

4. In view of acquittal of accused 1 2 of aforestated offences, the following points would arise for determination:-

(1) Whether the prosecution has proved that before marriage of accused No.1 with PW1 prior to 01.06.1997, accused 1 2 had demanded dowry from PW2 in connection with marriage of PW1 and accused No.1, thereby committed an offence punishable under section 4 of the D.P.Act?

(2) Whether the prosecution has proved that on 17.06.2003, accused 1 2 assaulted and fisted PW1 and caused simple hurt and thereby committed an offence punishable under section 323 r/w 34 IPC?

(3) Whether the prosecution has proved that accused 1 2 were demanding PW1 to bring additional dowry of Rs.1,00,000/- and thereby committed offences punishable under sections 3 4 of the D.P.Act?

(4) Whether prosecution has proved that accused 1 2 were subjecting PW1 to cruelty and they were harassing PW1 to bring additional dowry of Rs.1,00,000/-, thereby committed an offence punishable under section 498A r/w 34 IPC?

(5) Whether the learned trial Judge has properly appreciated evidence on record?

(6) To what order?”

5. My findings on the above points and reasons therefor are as follows:-

PW1-K.G.Yogamba is the wife of accused No.1. PW1 has deposed; at the time of marriage, her parents gave a gold chain, a wrist watch and a gold ring to accused No.1. PW1 has not deposed that there was demand for dowry either from accused 1 or accused No.2.

6. PW2-K.M.Guruswamy is the father of PW1. PW2 has deposed; at the time of marriage, he gave a gold chain, a gold ring and a wrist watch to accused No.1. PW2 has not deposed that accused 1 2 had demanded dowry before marriage.

7. Similar is the evidence of PW3-Shantharathna, who is the mother of PW1 and the wife of PW2.

8. It is needless to state that PW1 to PW3 are primary witnesses. It is clear from their evidence, there was neither demand nor acceptance of dowry either by accused No.1 or accused No.2 before marriage of PW1 and accused No.1.

9. PW1-K.G.Yogamba has deposed; after marriage, accused 1 2 were harassing PW1, stating that PW1 has not begotten a child and accused No.1 would take a second wife; accused 1 2 were also demanding PW1 to bring additional dowry of Rs.1,00,000/-; PW1 had informed the matter to her father (PW2), who had given a sum of Rs.20,000/- on one occasion; another sum of Rs.20,000/- was given after one year and another sum of Rs.10,000/- was given after some time. PW1 has deposed; accused 1 2 had assaulted and driven her away from their house.

During cross-examination, PW1 has admitted that she left the house of accused about 3 years prior to 05.07.2006.

10. PW2-K.M.Guruswamy has deposed; accused demanded additional dowry of Rs.20,000/- through his daughter (PW1); PW2 sent a sum of Rs.20,000/- to accused No.1 through his daughter; for second time, there was demand for a sum of Rs.20,000/- from accused; PW2 gave a sum of Rs.20,000/- to accused; again there was another demand for dowry of Rs.10,000/-; PW2 has paid a sum of Rs.10,000/- to accused; in all PW2 has paid a sum of Rs.50,000/- to accused.

11. The evidence of PW1 and PW2 cannot be reconciled. PW1 has not deposed that PW2 had sent a sum of Rs.20,000/- through her. PW2 has deposed that there was demand for a sum of Rs.1,00,000/- as additional dowry, whereas PW1 has not deposed that there was demand for a sum of Rs.1,00,000/- as additional dowry.

12. PW3-Shantharathna has deposed; Accused No.1 and PW1 were living happily for a period of two years from the date of their marriage; thereafter, PW1 and accused No.1 came to their house, PW1 and accused No.1 demanded a sum of Rs.20,000/- to install a pump set; a sum of Rs.20,000/- was given to accused No.1. PW3 has not deposed that accused No.1 had demanded a sum of Rs.1,00,000/- as additional dowry. PW3 has not deposed to whom money was paid. PW3 has not deposed from whom money was paid. PW3 has deposed; they had sent a sum of Rs.20,000/- through PW7-Basavanna and PW10- K.M.Shivamurthi.

13. PW2 (father of PW1) has not deposed about involvement of PW7 PW10 in payment of additional dowry to accused No.1.

14. PW4-Ramappa has not supported the case of prosecution. Therefore, PW4 has been declared as a hostile witness.

15. The evidence of PW5-Tayamma is hearsay in nature.

16. PW6-Mallanna has deposed; PW2 gave a sum of Rs.50,000/- to accused through PW7 PW10 in three instalments. PW6 has not specified the amount paid on each occasion and context in which amount was paid to accused 1 2. The evidence of PW6 is contrary to the evidence of PW1 PW2.

17. PW7-Basavanna has deposed; accused 1 PW1 lived happily for a period of three years; thereafter, PW1 approached her father (PW2) and told him that accused were demanding a sum of Rs.1,00,000/-; PW2, PW7 PW10 secured accused No.2; PW2 gave a sum of Rs.20,000/- to accused No.1; again, accused No.1 demanded a sum of Rs.20,000/- from PW1 to dig a bore well; therefore, PW2 had sent a sum of Rs.20,000/- to accused No.1 through PW1; there was yet another demand for a sum of Rs.25,000/-; accused No.1 was secured to house of PW2 and paid a sum of Rs.10,000/- to accused No.1.

18. The evidence of PW7 is not consistent with the evidence adduced by PW1 PW2.

19. PW8-Nagappa is the elder brother of PW2. PW8 has deposed; a sum of Rs.50,000/- was paid in 3 instalments. The evidence of PW8 is vague.

20. PW10-K.M.Shivamurthy has deposed; after marriage, accused No.1 and PW1 were cordial for a period of one year; thereafter, accused No.1 demanded PW1 to bring additional dowry of Rs.50,000/-; PW10 and PW7 visited the house of PW1 and paid a sum of Rs.20,000/- to accused No.1; again, there was demand for a sum of Rs.20,000/- from accused; PW10 has paid a sum of Rs.20,000/- to accused No.1; accused No.1 continued to demand money from PW1; again, after one year, PW10 has paid a sum of Rs.10,000/-; in all, a sum of Rs.50,000/- was paid to accused No.1. PW10 has deposed; PW7 PW10 had visited the house of accused to pay aforestated amount.

21. The evidence of PW10 is not consistent with the evidence of PW1, PW2 PW3, so also evidence of PW7. Therefore, prosecution has failed to prove that accused 1 2 have demanded a sum of Rs.1,00,000/- as additional dowry and received a sum of Rs.50,000/- from PW2.

22. It is the case of prosecution that PW1 was harassed and ill-treated by accused 1 2 for not begetting a child, assaulted and driven her away from house of accused.

During cross-examination, PW1 has admitted that she was staying in her parental house since three years prior to 05.07.2006.

23. From the evidence of PW1, we find that there were differences between PW1 and accused No.1. Accused No.1 was blaming PW1 for not begetting a child and PW1 was blaming accused No.1 for not having a child by their marriage. PW1 has admitted when accused No.1 had gone to the parental house of PW1 to bring back PW1 to his house, PW1 refused to go to the house of accused and the father of PW1 (PW2) demanded accused No.1 to give share of properties to PW1. PW1 PW2 were under the impression that accused No.1 would take a second wife. Therefore, PW1 PW2 demanded accused No.1 to give share to PW1 in landed properties of accused No.1. PW1 has admitted that whenever accused No.1 had come to take her from her parental house, they had scolded him and sent him away.

24. PW2 (father of PW1) has admitted that before marriage of PW1 with accused No.1, PW1 was suffering from epilepsy. After marriage, PW1 continued to suffer from epilepsy, for treatment of which accused No.1 had taken PW1 to T.Narasipura, Mysore and other places. PW1 was frequently visiting her parental house for treatment and she was staying there. PW2 has admitted that when accused No.1 had come to his house to take PW1, there was a quarrel and they refused to send PW1 with accused No.1. PW2 demanded share of PW1 in landed properties of accused No.1.

25. In the evidence of PW2, we find that PW1 was suffering from epilepsy. PW1 was frequently visiting her parental house for the purpose of treatment. There were differences between PW1 and accused No.1 as they had no children by their marriage. PW1 PW2 were under the impression that accused No.1 would take a second wife. Therefore, PW1 PW2 had demanded accused No.1 to give share to PW1 in landed properties of accused No.1. When accused No.1 had visited the house of PW2 to take back PW1 to his house, PW1 PW2 had quarreled with accused No.1 and sent him away from their house.

26. PW3-Shantharathna is the mother of PW1. PW3 has given altogether a different version. PW3 has deposed; her daughter (PW1) was driven away from the house of accused 1 2 and accused 1 2 had told that they would not allow PW1 to enter their house unless she brings dowry from her parental house. The version of PW3 is entirely different from version of PW1 PW2.

27. Thus, we find PW1 and her parents had given different versions for PW1 and accused No.1 falling apart. None of these witnesses has deposed that accused No.2 was in any way harassing and ill-treating PW1. It appears that health condition of PW1 was not good due to epilepsy. Therefore, PW1 was frequently visiting her parental house. The parents of PW1 had gathered an impression that accused No.1 would take a second wife. Therefore, PW2 demanded accused No.1 to give a share in his landed properties to PW1. The evidence of PW1 to PW3 that accused 1 2 had assaulted PW1 on 17.06.2003 cannot be accepted.

28. The learned trial Judge on proper appreciation of evidence has rightly acquitted accused 1 2 of aforestated offences. There are no reasons to interfere with the impugned judgment.

29. In the result, I pass the following:-

ORDER The appeal is dismissed.

Sd/-

JUDGE SNN.

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