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State Of Karnataka vs Suresh on 10 December, 2012

Karnataka High Court State Of Karnataka vs Suresh on 10 December, 2012Author: K.L.Manjunath And B.Manohar

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF DECEMBER, 2012 PRESENT

THE HON’BLE MR. JUSTICE K.L.MANJUNATH AND

THE HON’BLE MR.JUSTICE B.MANOHAR

CRL.A.1737/2007

BETWEEN:

State of Karnataka

By Koppa Police Station ….Appellant (By Sri.P.M.Nawaz, Addl.SPP)

AND:

1. Suresh

S/o Marimayigowda

Aged about 25 years

R/at Kodiganahalli,

Maddur Taluk

Mandya District.

2. Puttagowramma

W/o Marimayigowda

Aged about 50 years

R/at Kodiganahalli,

Maddur Taluk

Mandya District.

3. Marimayigowda

S/o Late Kanohigowda

2

Aged about 60 years

R/at Kodiganahalli,

Maddur Taluk

Mandya District.

4. Padma

W/o Venkatesha

Aged about 28 years

R/at D.No.3768, 9th cross

2nd main, Gayathrinagara

Bangalore.

5. Varadaraju

S/o Late Hemagirigowda

Aged about 45 years

R/at D.No. 108, 10th Main

Mahalakshmi Layout

Bangalore. …Respondents (By Sri.K.M.Murali Mouni, Advocate) This criminal appeal is filed Under Section 378 (1) & (3) CR.P.C by the State P.P for the state praying that this Hon’ble Court may be pleased to grant leave to file an appeal against the judgment dated 21.08.2007 passed by the Prl. Sessions Judge, and C/c of FTC-IV, Mandya, in S.C.No.57/04 acquitting the respondents/accused 1 to 3 for offences punishable under sections 498A & 307 of IPC & Sections 3 & 4 Dowry Prohibition Act.

This criminal appeal coming on for final hearing this day, K.L. Manjunath, J. delivered the following: 3

JUDGMENT

The State has come up in this appeal challenging the legality and correctness of the Judgment and order of acquittal passed by Principal Sessions Judge, Mandya dated 21.08.2007 in S.C.No.57/2004.

2. Based on the complaint lodged by PW-1 wife of respondent No.1, the Koppa police registered a case against the respondent in Crime No.59/2003 dated 01.10.2003 for the offence punishable under section 498A, 307, 114 read with Section 149 of IPC and Sections 3 and 4 of Dowry Prohibition Act.

3. It is the case of the prosecution that marriage between PW-1 and A-1 was solemnized on 23.02.2000 at Kodiganahalli in the house of respondents 1 to 3 and they lived happily for a period of two years and thereafter A-1 started harassing PW-1 to bring dowry of `50,000/- and also demanded a site at Bangalore and as a result of which PW-1 was sent home and later on 4

Panchayat was convened in the month of July, 2003 and that respondent No.1 by executing an indemnity bond as per Exhibit P-10 taken back PW-1 to the matrimonial home and again started harassing her and demanding her to bring dowry.

4. It is further case of prosecution that on 30.09.2003 at about 4 P.M when PW-1 was in the house of respondents 1 to 3 at the instance of respondents 4 and 5, respondents 2 and 3 caught hold of PW-1 and A- 1 poured the kerosene with an intention to set her ablaze. PW-1 crying for help left the house of A-1 to A-3 and lodged a police complaint on 01.10.2003 at about 8 P.M after 28 hours from the date of incident.

5. Based on a complaint lodged by PW-1 as per Exhibit P-1 PSI, Sridhar of Koppa who has been examined as PW-16 registered the case against the respondents in Crime No.59/2003 and the case was further investigated by PW-15, who filed the charge sheet for the aforesaid offence.

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6. Accused having appeared before the Sessions Court pleaded not guilty and they claimed to be tried for the aforesaid offence.

7. In order to prove the case of the prosecution, the prosecution relied upon the evidence of PW-1 to P- 16, Exhibits P-1 to P-22, M.Os. 1 to 4 and on behalf of defence four documents as Exhibits D-1 to D-4. After conclusion of evidence, Sessions Court recorded the statement as required under section 313 of Cr.P.C. The accused persons denied the incriminatory evidence made against them explaining the circumstances under which the case has been falsely registered against them. They also filed a memo at the time of 313 statement by producing documents.

8. Learned Sessions Judge after hearing the Public Prosecutor and defence counsel formulated the following points for his consideration: 6

1. Whether the prosecution has proved beyond all reasonable doubt that all or any of the charges against the accused persons?

2. Whether all or any of the accused are liable to be convicted for any other offence?

9. After considering the oral and documentary evidence and arguments advanced by respective advocates the court came to the conclusion that the prosecution has failed to bring home the guilt of accused beyond reasonable doubt. Accordingly respondents were acquitted for the offence tried against them by prosecution. Challenging the same the present appeal is filed.

10. We have heard Sri.Nawaz, learned Additional SPP for appellant and Sri.Murari Mouni, learned counsel for respondents. According to appellant trial court has committed an error in holding that prosecution has failed to bring home the guilt of 7

accused beyond reasonable doubt. According to him Sessions Court did not consider the evidence of PW-1 to PW-5 in a proper perspective. According to him the prosecution has proved beyond reasonable doubt that an attempt was made by A-1 to A-3 at the instigation of A-4 and A-5 to commit murder of PW-1 by producing M.Os 1 and 2 which were the clothes worn by PW-1 on 30.09.2003 which clothes contained kerosene as per the report of FSL, Exhibit P-15 and proved the same through PW-12, Mallesh, Investigating officer has been examined. He further contends that Exhibit P-10 is a document executed by A-1 to A-4 while taking back PW- 1 to the matrimonial home three months prior to the incident. In a Panchayat convened A-1 has clearly stated that he would treat his wife with all love and affection and that he would not harass. According to him Exhibit P-10 conclusively proves the case of prosecution that A-1 to A-3 were treating PW-1 with physical and mental torture which attracts the provisions of Sections 3 and 4 of Dowry Prohibition Act, 8

as PW-1 was physically and mentally tortured by A-1 to A-3 to bring dowry and a site. He further contends that Trial Court did not consider his evidence PW-3 who is none other than the brother of A-2 who has supported the case of the prosecution and whose evidence has not been seriously challenged. According to him PW-3 was examined to prove the physical and mental torture given by A-1 to A-3 to PW-1 to bring additional dowry and site and similarly the evidence of PW-2, PW-4 and PW-5 could not have been brushed aside by learned Sessions Judge. He lastly contends even if there is no positive evidence led in by prosecution to prove the charges leveled against the respondent under section 307 of IPC. Prosecution has made out a case for the offence punishable under Sections 3 and 4 of Dowry Prohibition Act. In the circumstances he requests the court to re- appreciate the evidence and reverse the findings of Sessions Court.

11. Per contra, the defence counsel submits none of the arguments advanced by additional SPP are 9

tenable because the case of the prosecution has been rightly brushed aside by learned Sessions Judge since there is no consistency in the evidence of PW-1 to PW-5 and in the light of Exhibit P-10 and Exhibits D-1 to D-4. According to him there was no demand for dowry or dowry harassment by any of the accused persons. According to him the prosecution has not led in evidence to show the alleged harassment by A-1 to A-3. It is also his case that the relationship between PW-1 and A-1 was cordial for three years from the date of marriage and later they developed strain on account of conduct of PW-1 and that PW-1 on her own had left the matrimonial home and A-1 as a obedient husband convened a Panchayat and in the Panchayat as per Exhibit P-10 PW-1 was directed to join A-1 and his family members. According to him even thereafter she did not co-operate with A-1 which resulted in issuing a legal notice as per Exhibit D-1 dated 21.07.2003 and Exhibit P-10 came into existence after Exhibit D-1. He further submits that even after Exhibit P-10 PW-1 did 10

not join him and he was compelled to file a petition under Section 9 of Hindu Marriage Act as per Exhibit D- 4 in M.C.No.14/2003 two months after Exhibit P-10. He further submits that he explained in 313 statement the reasons for filing a false complaint against him. He further contends that an attempt was made by Smt.Shivamma and others including Sri.Hemagirigowda and PW-4 Shivamma and one Sri.Umesh, PW-3 Hemagirigowda and also by PW-1 assaulting A-2 and committed an offence under section 323, 341, 354, 447 and 149 of IPC for which a private complaint was lodged before the JMFC, Maddur in PCR No.206/2003 dated 02.09.2003. Therefore as a counter blast to the aforesaid private complaint which was later on registered as C.C.No.1107/2005 Exhibit P-1 was lodged by PW-1 hand in glove with aforesaid accused persons. Therefore he requests the court to dismiss the appeal.

12. Having heard the counsel for the parties what is to be considered by us in this appeal is: 11

(i) Whether the prosecution has proved that respondents made an attempt to commit murder of PW-1 which attracts the provisions of Sections 498A and 307 of IPC?

And;

(ii) Whether the prosecution has further proved that the respondents have committed an offence under Sections 3 and 4 of Dowry Prohibition Act?

13. So far as relationship between the parties are concerned there is no dispute. A-1 has not disputed his marriage with PW-1. It is also the case of PW-1 that they lived happily for two years and thereafter respondent No.1 started torturing PW-1 to bring dowry and demanded site from her parents.

14. It is the specific case of prosecution that on 30.09.2003 at about 4 P.M when PW-1 was in the house of A-1 to A-3 at the instigation of A-4 and A-5, A-2 and A-3 caught hold of her and A-1 poured kerosene to set 12

her ablaze. This has been witnessed by CW-8, CW-11 and others. But the complaint is lodged on 01.10.2003 at about 8 P.M 28 hours after the incident and no satisfactory explanation is offered in not lodging the complaint immediately as per Exhibit P-1. Exhibit P-1 is the complaint lodged by PW-1. According to her this was drafted by a bond writer in the bus stand of Koppa Village and her father had brought the complaint written by a deed writer whose name is not known to her. As could be seen from Exhibit P-1, neighbours of the house have witnessed the incident. For the reasons best known to the prosecution none of the villagers said to have witnessed the alleged incident are examined by prosecution. The only explanation offered by PW-1 is that the villagers are not willing to give evidence. But when their statement has been recorded by police and have cited as charge sheet witnesses there was no difficulty for the prosecution to examine those persons if really such an incident has taken place. Except the self serving testimony of PW-1 there is nothing on record to 13

show that such an incident has taken place on 30.09.2003 at 4 P.M.

15. In order to prove earlier harassment and that all was not well between PW-1 and A-1 to A-3 prosecution has relied upon Exhibit P-10 which is an indemnity bond said to have executed by A-1 in the presence of Sri.Javaregowda and Sri.N.C.Jagadeesh. For reasons best known to prosecution either Sri.N.C.Jagadeesh or Sri.Javaregowda have not been examined.

16. We have seen Exhibit P-10. On perusal of the entire document it is clear that PW-1 and A-1 were living together happily at Kodiganahalli for the last one year and 8 months. Three months prior to Exhibit P-10 without any reason PW-1 had left matrimonial home and that A-1 with a fond hope that she would return to matrimonial home was waiting for her. Since she did not return to his home, a Panchayat was convened and as per the decision of Panchayat he has taken back PW- 14

1 with him and that he would take care of her. The entire document Exhibit P-10 does not say anything about the alleged harassment or demanding for dowry or site.

17. In addition to that before Exhibit P-10 A-1 got issued legal notice as per Exhibit D-1 calling upon her to join him. Under Exhibit D-1 it is also mentioned Panchayat was convened on 15.07.2003 and that she had refused to join. From this it is clear that even before Exhibit P-10 came into existence there is consistent demand by A-1 requesting PW-1 to join him.

18. Even after Exhibit P-10, PW-1 was not living with A-1. Therefore he filed a petition M.C.14/2003 before the Civil Judge, Senior Division, Maddur under Section 9 of Hindu Marriage Act on 17.09.2003 as if PW-1 was residing at Gayathrinagar, Bangalore. These facts are not disputed by PW-1 in her cross examination. When petition is filed under section 9 of the Hindu Marriage Act during third week of September, 15

2009 stating that PW-1 is living separately in Bangalore and has called upon PW-1 to join him and requesting the court to grant a decree of restitution of conjugal rights it is difficult to believe the case of prosecution that on 30.09.2003 PW-1 was residing with A-1 to A-3 at Kodiganahalli Village and when she was not a resident of Kodiganahalli Village no such incident could be taken place on that day. On the contrary certified copy of PCR 206/2003 filed by A-2 against PW-1, PW-3, PW-4 and others would reveal that PW-1 and others had assaulted A-2 and a complaint was lodged against them. A-1 while answering 313 statement has categorically stated that present complaint has been lodged as a counter blast to the complaint lodged by A-2 before the jurisdictional police. From the above evidence it is clear that the prosecution has failed to prove that an incident took place on 30.09.2003 at 4 P.M because there is nothing on record to show that PW-1 was residing with A-1 to A-3 at Kodiganahalli Village and even Exhibit P- 10 does not discloses that there was a demand for 16

dowry or dowry harassment by A-1. On the contrary D- 1 and D-4 disclose that A-1 tried his level best to save the marriage. When such a legal notice was got issued by A-1 as per Exhibit D-1 PW-1 is expected to send a reply and in the reply there was a chance for her to say the nature of harassment meted out to her by A-1 to A-

3. In the circumstances, we are of the view that appreciation of evidence by the Sessions court is just and proper and prosecution has not made out any case to reverse the findings of Sessions Court and points formulated by us are to be answered against the prosecution.

In the result, appeal is dismissed. Sd/-

JUDGE

Sd/-

JUDGE

SBN

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