IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25TH DAY OF JANUARY, 2017
BEFORE
THE HON’BLE MR.JUSTICE BUDIHAL R.B.

CRIMINAL REVISION PETITION NO.989/2009

BETWEEN:

MAHADEVASWAMY @ UMESHA
S/O BASAPPA,
AGED ABOUT 30 YEARS,
R/AT KONANUR VILLAGE, NANJANGUD TALUK,
MYSORE DISTRICT…. PETITIONER

(BY SRI. P. MAHESHA, ADVOCATE)
AND:

STATE BY KOWLANDE POLICE STATION,
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA, BENGALURU-56 01….RESPONDENT

(BY SRI.B.J. ESHWARAPPA, HCGP)

THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 01.10.2009 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, MYSORE IN CRL.APPEAL No.40/2008 WHO HAS PARTLY ALLOWED THE APPEAL AND MODIFIED THE ORDER DATED 08.02.2008 PASSED BY THE ADDL. CIVIL JUDGE (JR.DN.) AND JMFC, NANJANGUD IN C.C.NO.86/2005.

THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

This revision petition is filed by the petitioner – accused No.1 challenging the legality and correctness of the judgment and order dated 08.02.2008 passed by the JMFC Court at Nanjangud in C.C.No.86/2005 and also the judgment and order dated 01.10.2009 passed by the II Addl. District Sessions Judge at Mysore in Crl.Appeal No.40/2008.

2. By the judgment and order of the Trial Court accused Nos.1 to 4 were convicted for the offence punishable under Section 498A, 506 read with Section 34 of Indian Penal Code and Section 4 of the Dowry Prohibition Act, but they were acquitted for the offences punishable under Section 324 read with Section 34 of Indian Penal Code and Section 3 of the Dowry Prohibition Act. When the accused preferred the appeal before the First Appellate Court challenging the judgment and order passed by the trial Court, the First Appellate Court after reassessing the matter, set aside the judgment and order of conviction passed against accused Nos.2 to 4 and acquitted them from all the offences alleged against them, but it has confirmed the conviction of accused No.1 for the offences punishable under Section 498A and 506 of I.P.C. and Section 4 of the Dowry Prohibition Act. Being aggrieved by the same, the revision petitioner is before this Court.

3. Brief facts of the prosecution case as submitted before the Trial Court are that the charge sheet was filed against accused Nos.1 to 4 for the offences punishable under Sections 498A, 324, 506 read with Section 34 of Indian Penal Code and Section 3 and 4 of Dowry Prohibition act. The allegations made are that accused No.1 married CW-1/Mahadevamma on 19.06.2003 and after three months she was subjected to mental and physical cruelty in order to coerce her to bring dowry and thereby accused have committed offence under Section 498A of Indian Penal Code. It is further alleged that, on 16.08.2004, the accused have assaulted Mahadevamma @ Usha with a wooden club and caused simple injuries and thereby committed the offence punishable under Section 324 of Indian Penal Code. On 16.08.2004, accused No.3 Susheelamma held out life threat on Mahadevamma @ Usha and threatened that she would be eliminated in case if, she fails to bring dowry, which is an offence punishable under Section 506 of Indian Penal Code. It is further alleged that accused No.1 received 22 grams of golden chain and 8 grams of golden ring and clothes as dowry at the time of marriage and further they have demanded a sum of Rs.50,000/- from CW-1 as dowry and thereby committed the offence punishable under Sections 3  4 of the Dowry Prohibition Act.

4. Heard the arguments of the learned counsel appearing for the petitioner/accused No.1 and the learned High Court Government Pleader appearing for the respondent/State.

5. Learned counsel for the revision petitioner during the course of his arguments made the submission that the prosecution has not at all proved its case beyond all reasonable doubt. It is his further submission that so far as demand of dowry of Rs.50,000/- is concerned, it is the allegation against all the accused persons that they have demanded Rs.50,000/- as dowry amount. Learned counsel has submitted that looking into the judgment of the First Appellate Court, it has been observed that the allegation of demand for dowry of Rs.50,000/- is very vague against accused Nos.2 to 4. It is his submission that when the First Appellate Court opined that the evidence is vague as against the accused Nos.2 to 4 is concerned, there is no other separate allegation against accused No.1 i.e., the petitioner herein. The First Appellate Court ought to have acquitted accused No.1 also, but it is wrongly held that there is evidence against accused No1. He has further submitted that though it is the allegation of the complainant that she was assaulted with a wooden stick and demanded the dowry amount by posing threat to her that in case, if she did not bring dowry amount of Rs.50,000/-, she will be eliminated, but no wooden stick is seized during the course of investigation and there is no injury certificate produced to show that the complainant has sustained injuries at the hands of accused persons. Hence, he has submitted that all these materials placed on record itself clearly goes to show that a false complaint has been filed against the revision petitioner and other accused persons.

Learned counsel has also submitted that so far as demand for dowry and subjecting the complainant for physical and mental cruelty is concerned, there is no corroborative evidence by the independent witnesses as they are all hearsay witnesses and even the evidence of complainant/PW-1 is also not acceptable and credit worthy. Hence, he has submitted that both the Courts below have wrongly read the evidence and wrongly appreciated the same and convicted the revision petitioner. He has further submitted that the First Appellate Court is also not right in its view to confirm the judgment and order of conviction passed as against the revision petitioner is concerned, when, on the same set of evidence, it has acquitted accused Nos.2 to 4 and when the allegations against all the accused persons are similar in nature. Hence, he has submitted that as the Courts below have committed illegality in considering the relevant material and the irrelevant considerations were taken for the purpose of discussion and came to a wrong conclusion. Though it is the revision petition, when such illegalities have been committed by the Courts below, this Court can interfere with the orders of the Courts below to do justice to the parties. Hence, he submitted to allow the revision petition and to set aside the Judgment and order passed by the Courts below.

6. Per contra, learned High Court Government Pleader during the course of his arguments made a submission that the complainant-PW.1 has deposed before the Court consistently about the harassment meted out to her both physically and mentally. He has also submitted that PWs.3 and 4 are parents of PW.1, who have also stated in their evidence before the Trial Court about the cruel treatment meted out to respondent-complainant. He has further submitted that even other witnesses, who are the neighbors, also given their evidence before the Trial Court about the ill-treatment and harassment given to the complainant. Therefore, it is his contention that the evidence placed on record through the mouth of the prosecution witnesses is consistent and the Trial Court rightly appreciated the entire material and came to the right conclusion in convicting the accused person. He has further submitted that the First Appellate Court has also opined that the materials placed on record is sufficient to show that prosecution proved its case beyond all reasonable doubt. Hence, He has submitted that there are concurrent findings by the Courts below on the factual aspects and since it is a revision petition, the scope is very limited, the Court cannot re-appreciate the entire factual aspects in this revision petition. Hence, he submitted that there is no merit in this revision petition and same is to be dismissed.

7. I have perused the grounds urged in the revision petition, judgment and order of the Courts below.

8. Looking to the Judgment of the Trial Court, the Trial Court has convicted all the accused persons for the offence punishable under Sections 498A, 506 read with Section 34 of Indian Penal Code and Section 4 of the Dowry Prohibition Act and acquitted all the accused persons for the offence punishable under Section 324 read with Section 34 of Indian Penal Code and Section 3 of the Dowry Prohibition Act. But when the same was challenged before the First Appellate Court by preferring an appeal, the First Appellate Court had set aside the Judgment of Trial Court so far as accused Nos.2 to 4 are concerned. Hence, it goes to show that the trial Court has wrongly proceeded to convict the accused Nos.2 to 4 and it has not rightly appreciated the evidence as against those accused persons are concerned.

9. Learned counsel for the petitioner drew the attention of this Court to the evidence of P.W.1, and submitted that so far as demand of Rs.50,000/- dowry amount is concerned, same and common allegation is made against all the accused persons that all the accused persons gave ill-treatment and harassment demanding dowry of Rs.50,000/-. He also drew the attention of this Court to the evidence of PW-1 in the examination-in-chief at paragraph No.2, wherein it is deposed by the witness that, all four accused persons told her to bring Rs.50,000/- from her parental place, otherwise they will perform a second marriage to accused No.1. She also deposed that in case if she did not bring Rs.50,000/- then they will drove her out from their house and they will perform the marriage to Mahadevaswamy.

10. Looking to the above said evidence, it goes to show that the common allegation is made against all the accused persons that they have demanded Rs.50,000/- dowry from the complainant. But looking to the findings of the First Appellate Court at paragraph No.21 of the Judgment, wherein it has observed that on 16.08.2004 at about 11.00 p.m. all the accused assaulted her with a wooden rafter and stone on her left shoulder and afterwards she went to her parents house. PWs.2 to 5 on the other hand, have stated that before PW.1 came to her parents house, accused persons have made a wooden log to fall on her body and PW.1 had sustained pain. It is further observed that, in fact the Trial Court has acquitted the accused persons from the offences alleged against them under Section 324 of Indian Penal Code as the evidence regarding accused assaulting PW.1 is contradictory and cannot be believed. Therefore, the first appellate Court observed that it is of the view that the evidence produced by the prosecution about accused No.2 to 4 harassing, P.W.1 when she was living in their house or assaulting her and treating her with cruelty is too vague and cannot be believed. Therefore, the First Appellate Court observed that it is constrained to hold that the prosecution has failed to prove any of the offence under Section 498A, 506 read with Section 34 of Indian Penal Code and Section 4 of the Dowry Prohibition Act against accused Nos.2 to 4 and accordingly, the First Appellate Court acquitted those accused persons.

11. Looking to the materials placed on record and as I have already referred to the oral evidence of PW.1/Complainant, so far as the demand for dowry and giving ill-treatment is concerned, common evidence has been led and common allegations are made against all the accused persons that all the accused together demanded dowry of Rs.50,000/- from the complainant; when that is so, it cannot be segregated or separated against accused Nos.2 to 4 and against accused No.1. Looking to the allegations and the evidence of PW.1, she has not stated that apart from the said demand by all the four accused, accused No.1 separately and at a different point of time, has also made such demand to bring Rs.50,000/- dowry and in that connection he alone gave the ill-treatment and harassment to her. When that is not the material placed on record and when the Appellate Court held that the evidence adduced by PW.1 regarding bringing of Rs.50,000/- dowry is said to be too vague, same could have been the observation made by the First Appellate Court even in respect of the accused No.1 also.

12. Apart from that, while appreciating the evidence of PW.1, it is also to be seen that she has alleged in the complaint that she has been assaulted with a wooden stick and thereby she sustained pain to her shoulder and even she was assaulted with a stone also, but the entire materials clearly goes to show that no such stone or wooden stick were seized during the course of investigation and regarding the injury or the internal pain sustained by the complainant is concerned, there is no injury certificate produced. It is not the case of prosecution that complainant has taken treatment from the Doctor, except the oral say of the complainant no material has been placed before the Trial Court and because of the same reason, the First Appellate Court disbelieved the evidence of the prosecution witnesses and acquitted accused Nos.2 to 4.

13. Looking to the evidence of other witnesses, who are not the eyewitnesses, it is their case that PW.1 informed them about ill-treatment and harassment, therefore, the evidence of other witnesses is hearsay and it is not a direct evidence. Looking to the evidence of PW.2, who is the father of the complainant, in the examination-in-chief, has deposed that his daughter used to inform him about ill-treatment over phone also, but during the course of cross-examination, he deposed that nobody informed him over phone that his daughter has been subjected to ill-treatment. He has also deposed in his evidence that one Mahadevappa has not informed him over phone that there is a galata on his daughter Usha and her husband’s family members were giving ill-treatment to her. This portion of the evidence was marked as Ex.D-1 during the cross-examination of PW.2.

14. Under such circumstances, looking to the materials placed on record, I am of the opinion that the Courts below are not right and justified in appreciating the evidence and coming to the conclusion that accused No.1 committed the said offences. The evidence has been wrongly read by the Courts below and the Courts below wrongly came to the conclusion in convicting the accused for the said offences. There is an illegality committed by the Courts below in coming to such conclusion, even the findings recorded shows that it is because of wrong reading of the entire materials. Hence, petitioner/accused No.1 has established his case in this petition.

Accordingly, the criminal revision petition is allowed. The judgment and order dated 08.02.2008 passed by the Addl.Civil Judge (Jr.Dn.) JMFC at Nanjangud in C.C.No.86/2005 and also the judgment and order dated 01.10.2009 passed by the II Addl. District Sessions Judge, Mysore, in Crl.Appeal No.40/2008 is hereby set aside. Petitioner/accused No.1 is acquitted of all the offences alleged against him.

Sd/-

JUDGE