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CRL.RP No. 795 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON’BLE MR JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 795 OF 2021
BETWEEN:
RAVI ROSHAN NAZARATH
S/O ALBERT NAZARATH
AGED ABOUT 36 YEARS
R/AT NEST
NEAR JAMAI MASJID
SHIRVA VILLAGE AND POST
UDUPI – 574 116.
…PETITIONER
(BY SRI. PARAMESHWAR N HEGDE, ADVOCATE)
AND:
STATE BY SHIRVA POLICE
UDUPI DISTRICT
REPT BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
Digitally BANGALORE – 560 001.
signed by N
UMA
Location: …RESPONDENT
HIGH
COURT OF
KARNATAKA (BY SRI. RAHL RAI K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT PASSED IN CRL.A.NO.120/2018
DATED 19.04.2021 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE AT UDUPI AND THE CONVICTION ORDER
DATED 17.12.2018 AND SENTENCE PASSED IN
C.C.NO.1484/2015 BY THE III ADDITIONAL CIVIL JUDGE AND
JMFC AT UDUPI.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 795 of 2021
ORDER
1. The petitioner is the accused No.1 in C.C.No.1484/2015
on the file of the III Additional Civil Judge and JMFC,
Udupi. The petitioner is convicted for the offences
punishable under Section 498-A, 504, 506 r/w 34 of
Indian Penal Code (for short ‘IPC’) and Sections 3 and 4
of Dowry Prohibition Act (for short ‘D.P Act’).
2. Being aggrieved by the judgment of conviction and order
of sentence passed by the Trial Court, the petitioner
herein had preferred an appeal before the Appellate
Court. The Appellate Court confirmed the conviction.
Hence, the petitioner preferred this revision petition
seeking to set aside the concurrent findings recorded by
both the Courts.
Brief facts of the case are as under:
3. The case of the prosecution is that, the accused No.1
married the complainant on 14.01.2013 at Shirva Church,
Udupi District. After the marriage, it was registered on
26.02.2013. Both the complainant and the accused No.1
started living at the house of the parents of the accused
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No.1. The accused No.1 was working at Abu Dhabi. After
marriage, he stayed in India till 28.03.2013 and
thereafter, he went to Abu Dhabi. The complainant had
also followed him and went to Abu Dhabi on 12.06.2013.
4. It is stated in her complaint that during her stay at Abu
Dhabi along with accused No.1, she was being subjected
to cruelty and harassment on one or the other pretext
and it is also stated in the complaint that there was
demand of dowry by the accused No.1 by way of cash. It
is further stated that, the complainant was forced to take
tablets which increases the sexual capacity. When she
refused to consume the said tablets, she was being
assaulted with hands and also was being abused in most
filthy, vulgar and most uncivilized language. It is further
stated in the complaint that the accused was forcing her
to watch porn videos and act like that. The accused was
leaving the house at around 11.00 p.m. (night) and was
returning to home at about 1:30 a.m. Whenever he goes
out, he used to lock the door from outside and he was
confining the complainant in the room which had no basic
necessities. It is further stated that the accused was
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keeping the Passport and Visa along with him without
giving it to the complainant.
5. The complainant being unable to forebear the harassment
and cruelty, was forced to return to India within 7 weeks
i.e., prior to expiry of Visa period. The accused No.1 also
came to India in the third week of August, 2013 and
several rounds of compromise talks have been held
between the families. However, unfortunately, no fruitful
things have been happened. It is also stated in the
complaint that during the said negotiation, the accused
said to have demanded dowry of Rs.3,00,000/- from the
complainant.
6. Again, the accused No.1 left to Gulf on 22.10.2013. It is
alleged in the complaint that, the accused neither calling
the complainant and nor sending money for her basic
necessities. It is further stated that, the accused No.1
again came to India on 14.08.2014. However, he did not
visit the house of the complainant and never tried to
settle the issues amicably. Being aggrieved by the
cruelty, harassment and demand of dowry, the
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complainant has lodged a private complaint before the
jurisdictional Magistrate and it was referred to the
jurisdictional police for investigation. The jurisdictional
police after conducting the investigation, submitted the
charge sheet.
7. Initially, a complaint came to be registered against the
petitioner and his sister. The Trial Court convicted both
accused Nos.1 and 2 for the above said offences. In an
appeal, the judgment of conviction and order of sentence
dated 17.12.2018 passed in C.C.No.1484/2015 in respect
of accused No.2 has been set aside. Hence, the accused
No.1 preferred this revision petition seeking to set aside
the concurrent findings recorded by both the Courts.
8. Heard Sri.Parameshwar N.Hegde, learned counsel for the
petitioner and Sri.Rahul Rai.K, learned High Court
Government Pleader for the respondent.
9. It is the submission of the learned counsel for the
petitioner that the concurrent findings recorded by both
the Courts below are perverse, illegal and against to the
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evidence on record and therefore, it is liable to be set
aside.
10. It is further submitted that there is no demand and
acceptance of dowry as per the evidence of PW.1. It was
a proposal and it was not accepted by the parents of
PW.1. Mere demanding of the dowry is not sufficient to
invoke the said provisions, unless, it is complied by the
complainant and her family.
11. It is further submitted that the cruelty and harassment
said to have taken place in Gulf country. Even though
certain allegations have been made regarding demand of
dowry in the form of cash, no independent witnesses
have been examined to support the case. Mere making
bald and baseless allegations regarding demand of dowry,
are not sufficient to invoke the said provisions.
12. It is further submitted that the Investigating Officer has
not conducted investigation properly. Even though there
is a recital regarding the alliance having been brought by
Irene Mendonsa, he was not arraigned as witness to the
charge sheet. The parents of the complainant should
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have been examined to substantiate the dowry that has
been demanded by the accused and fulfilled by them.
Not examining the material witnesses of the case
certainly would affect the case of the prosecution.
13. It is further submitted that the complainant made several
allegations against accused No.1 that she was being
harassed, humiliated by the accused when she was
staying at her house in Gulf country, no complaints have
been made to the jurisdictional police in Gulf country.
The complainant came to India with her relevant
documents. Even in India, she has lodged any complaint
soon after her arrival. The complainant has not chosen to
file a complaint before the jurisdictional police. However,
she has approached the Jurisdictional Magistrate to file a
private complaint. The entire allegations made against
the accused No.1 is baseless and bald, therefore, the
petition deserves to be allowed. Making such submission,
learned counsel for the petitioner prays to allow the
petition.
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14. Per contra, learned High Court Government Pleader (for
short ‘HCGP’) vehemently justified the concurrent findings
recorded by the Courts below and submitted that the
marriage between accused No.1 and the complainant has
not been disputed and it is also not in dispute regarding
the stay of the complainant both in India and in Gulf
country along with accused No.1. It is further submitted
that, during her stay in Gulf country, she was being
subjected to harassment and cruelty in respect of sexual
favour and she had undergone trauma in Gulf country.
15. It is further submitted that the evidence of the
complainant substantially proved the case regarding
cruelty, harassment and demand of dowry. The family
members of the complainant namely PW.2, PW.6 and
PW.7 have supported the case of the prosecution in
respect of the same. The Trial Court after considering
both the oral and documentary evidence on record,
opined that the accused No.1 has committed an offence
stated supra and both the Courts have concurrently held,
he is guilty of the offences stated supra. Therefore, there
are no reasons assigned by the petitioner to interfere with
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the said findings. Making such submissions, learned
HCGP prays to dismiss the petition.
16. After having heard the rival contentions urged by the
learned counsels for the respective parties and also
perused the averments and findings of the Courts below
in recording the conviction, the points which would arise
for my consideration are:
i) Whether the concurrent findings
recorded by both the Courts below in
convicting the petitioner for the offences
under Sections 498-A, 506 r/w 34 of IPC and
Sections 3 and 4 of the Dowry Prohibition
Act are sustainable?
ii) Whether the petitioner has made out
grounds to interfere with the concurrent
findings recorded by both the Courts below
for conviction?
17. This Court being a Revisional Court is having limited
jurisdiction to interfere with the findings of the Courts
below. This Court can interfere with the said findings if
any error or illegality is noticed in the findings of
conviction. Having regard to the proposition of law in
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respect of interference by the Revisional Court, it is
appropriate to have a cursory look upon the evidence of
all the witnesses in order to ascertain as to whether any
error is committed by the Trial Court and the Appellate
Court in appreciating the evidence of all the witnesses.
18. The prosecution has examined 8 witnesses. PW.1 is the
complainant and the wife of the accused, PW.2 is the
elder sister of PW.1, PW.3 is an independent witness,
PW.4 is the official witness, PW.5 is the police official who
registered the FIR, PW.6 is the aunt of PW.1, PW.7 is the
family friend of PW.1, PW.8 is the ASI who conducted the
investigation and submitted the charge sheet.
19. Before adverting to the facts of the case, it is appropriate
to refer to the provision under Section 498-A of IPC for
better understanding. The provision which reads thus:
“498A. Husband or relative of husband of a
woman subjecting her to cruelty.–Whoever,
being the husband or the relative of the husband
of a woman, subjects such woman to cruelty shall
be punished with imprisonment for a term which
may extend to three years and shall also be liable
to fine. Explanation.–For the purpose of this
section, “cruelty” means–
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(a) any wilful conduct which is of such a nature as
is likely to drive the woman to commit suicide or
to cause grave injury or danger to life, limb or
health (whether mental or physical) of the
woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful
demand for any property or valuable security or is
on account of failure by her or any person related
to her to meet such demand.”
20. On careful reading of the above said provision, it makes it
clear that the object of enacting the said provision with a
view of punishing the husband or his relative who harass
or torture the wife or her relative to satisfy unlawful
demand of dowry.
21. The above said provision explained the word ‘cruelty’. It
means any willful conduct which is of such nature as is
likely to drive the woman to commit suicide or
harassment of the woman where such harassment is with
a view to coercing her in relating to unlawful demand of
any property or valuable security.
22. On careful reading of the evidence of all the witnesses, it
is relevant to refer the evidence of PWs.1, 2, 6 and 7 who
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are the material witnesses to the incident. PW.1 has
stated in her evidence that she was being harassed and
she was being meted out to cruelty in relating to the
sexual act of the accused No.1. The entire episode
according to her said to have taken place in Gulf country
where she was staying along with accused No.1.
However, no such complaint is lodged against the accused
No.1. It is needless to say that the purpose of marriage
would be fulfilled only after its consummation.
23. Be that as it may, the allegations made against the
accused No.1 in respect of cruelty, harassment and
demand of dowry has not been proved by the
independent witnesses. Of course, in a case of
matrimonial issues, it may be difficult to bring the
independent witnesses to prove the harassment and
cruelty. However, the Investigating Officers who deal
with such matters have some sense to conduct
investigation and collect the evidence in a proper manner.
In the present case, the parents of PW.1 and the
middleman who showed the alliance have not been cited
as witnesses to the charge sheet to substantiate the case
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of the prosecution in respect of dowry having been paid.
As regards other witnesses namely PWs.2, 6 and 7 are
concerned, they are the hearsay witnesses to cruelty and
harassment which PW.1 alleged meted out during her
stay is Gulf country, therefore, their evidence in respect
of cruelty and harassment ought not to have been
considered by the Trial Court.
24. On careful reading of all the material circumstances and
evidence of all the witnesses, it appears that the Trial
Court and the Appellate Court failed to take note of the
independent corroboration which was required to be
made for the purpose of substantiating the cruelty,
harassment and also demand of dowry. Mere making
allegations of cruelty not sufficient to prove the case
unless it is established properly by producing the
independent witnesses. It is needless to say that the
marriage between PW.1 and the accused No.1 has been
dissolved. Therefore, it is appropriate to conclude that
the Trial Court and the Appellate Court failed to
appreciate the evidence properly in respect of offences
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punishable under Sections 498-A, 504 and 506 of IPC and
also under Sections 3 and 4 of Dowry Prohibition Act.
25. In the light of the observations made above, the points
which arose for my consideration are answered as
under:-
Point No.(i) – “Negative”
Point No.(ii) – “Affirmative”
26. Accordingly, I proceed to pass the following:
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence dated 17.12.2018 passed in C.C
No.1484/2015 by the Court of III Additional Civil
Judge and JMFC, Udupi, as against accused
No.1/petitioner herein and its confirmation
judgment and order dated 19.04.2021 passed in
Crl.A No.120/2018 by the Court of the Principal
District and Sessions Judge, Udupi are set aside.
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(iii) The petitioner / accused No.1 is acquitted for the
offences punishable under Sections 498-A, 504,
506 r/w 34 of IPC and under Sections 3 and 4 of
Dowry Prohibition Act.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
MEG/BSS/UN
List No.: 1 Sl No.: 65