Santosh K Nagpal vs The State Of Karnataka
2022 Latest Caselaw 1717 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 04 T H DAY OF FEBRUARY, 2022

                         BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

 CRIMINAL REVISION PETITION NO.417 OF 2020

BETWEEN:

1. Santosh K Nagp al
   S/o Kishore Nagp al
   Aged about 38 years

2. Smt. Rakee K Nagpal
   W/o Kishore Nag pal
   Aged about 61 years

Both are Residing at
Kamadhenu Nilaya, No.50
M.S.Layout, Jaraganahalli
J.P.Nag ar 6 t h Phase
Beng aluru - 560 078

                                        ...Petitioners
(By Sri K.B.K.Swamy, Advocate)

AND:

The State of Karnataka
By J.P.Nag ar Police Station
Represented by
State Pub lic Prosecutor
High Court of Karnataka
Beng aluru - 560 001

                                         ...Respondent
(By Sri K.S.Abhijith, HCGP for respondent;
    Sri Venkatesh Prasad R, Advocate
    for applicant in IA No.2/2021)
                                    :: 2 ::


     This     Criminal         Revision        Petition   is    filed    under
Section 397 read with Section 401 of Cr.P.C. p raying
to set-aside the judgment and order d ated 18.02.2019
passed        by        the     44 t h     ACMM,          Beng aluru          in
C.C.No.2831/2014 in convicting the appellant No.1 for
the offences punishab le under Sections 323, 498A,
504 and 506 read with Section 34 of IPC and Sections
3   and   4   of   Dowry        Prohib ition       Act    and    convicting
app ellant    No.2       for    the      offences    punishab le         under
Sections 498A and 504 read with Section 34 of IPC
and Sections 3 and 4 of D.P.Act and confirmation of
the above in Crl.A.No.622/2019 on the file of the LXXI
Additional City Civil and Sessions Judge, Beng aluru
(CCH-72) by the ord er d ated 06.02.2020 by allowing
this Crl.R.P.

     This Criminal Revision Petition having b een heard
&    reserved           on     17.01.2022,           coming         on       for
pronouncement throug h video conferencing this day,
the Court pronounced the following:

                                 ORDER

The petitioners are accused 1 and 2 in

C.C.2831/2014 on the file of 44 t h Additional Chief

Metropolitan Magistrate, Bengaluru. They were

prosecuted in relation to offences punishable

under sections 498A, 323, 504, 506 of Indian :: 3 ::

Penal Code and sections 3 and 4 of the Dowry

Prohibition Act read with section 34 of IPC.

Prosecution case in brief is as below: -

2. PW1, Smt. Komal Asrani, made a report to

the police for registration of FIR. She is the wife

of the first accused. The second accused is the

mother of the first accused. The marriage

between the first accused and PW1 was solemnized

on 27.6.2010 at Bengaluru International Hotel,

Bengaluru. She reported to the police that the

accused started torturing her ten days after the

marriage for the sake of cash and jewellery as

they were not satisfied with what her parents had

given at the time of marriage. She went to her

parents house in the sixth month of her pregnancy

and stayed there for about two years. She went

back to her marital home on 21.1.2013. She was

looked after well for one month and then again her

husband started abusing and torturing her. He :: 4 ::

wanted money and jewellery, but she did not tell

her parents about the demand by the accused

because her father was a heart patient. She was

not allowed to speak to her parents. On a

Monday, i.e., 7.10.2013, her father came to meet

her at 5.00 PM. The second accused told this to

first accused when he went home at 8.30 PM and

questioning his wife as to why she allowed her

father, he hit her and threatened to kill her and

her father in case he would come again. She

alleged that the first accused used to always slap,

pull her hair, hit her on back, head and neck,

prick with a pen, and twist her hands. He used to

force her to sign the divorce papers. Very

specifically she stated that on 6.10.2013, the first

accused hit her on neck and as a result her

Mangalasutra was broken. She gave a report of

these events to the police on 9.10.2013. The

police registered an FIR in Crime No. 722/2013, :: 5 ::

held investigation and filed charge sheet against

the accused.

3. The prosecution in all examined ten

documents, Exs.P1 to P12. The defence examined

one witness namely Namaha Shivaaya as DW1 and

produced ten documents as per Exs.D1 to D10.

MO1 consist of gold ornaments marked on behalf

of the prosecution.

4. Upon appreciation of evidence, the trial

court convicted the accused and sentenced each of

them to undergo simple imprisonment for two

years and fine of Rs.5,000/- with a default

sentence of one month imprisonment for the

offence under section 498A IPC. For the offence

under section 3 of the Dowry Prohibition Act, if

accused No.1 was sentenced to simple

imprisonment for two years with fine of

Rs.10,00,000/- and default sentence of six months :: 6 ::

imprisonment, accused No.2 was sentenced to

simple imprisonment for two years with fine of

Rs.15,000/- and default sentence of one month

imprisonment. In relation to offence under section

4 of the Dowry Prohibition Act, each of accused 1

and 2 each was sentenced to simple imprisonment

for one year and fine of Rs.5,000/- with a default

sentence of simple imprisonment for one month.

In relation to offence under section 323 IPC,

accused No.1 was sentenced to simple

imprisonment for one year and fine of Rs.1,000/-

with default sentence of one month simple

imprisonment. For the offence under section 506,

accused No.1 was sentenced for a period of simple

imprisonment for two years six months and fine of

Rs.5,000/- with default sentence of one and half

months simple imprisonment. Then for the offence

under section 504 IPC, accused 1 and 2 each was

sentenced to simple imprisonment for six months

and fine of Rs.1,000/- with default sentence of :: 7 ::

simple imprisonment for one month. Sentences

for all the offences were made to run concurrently.

5. Both the accused preferred an appeal to

the City Civil and Sessions Judge, Bengaluru,

aggrieved by the judgment of the trial court. The

sessions court dismissed their appeal, 622/2019

confirming the judgment of conviction and

sentence and hence this revision petition against

the judgment of the appellate court.

      6.      I   have        heard   the      arguments    of   Sri

K.B.K.Swamy             for     the        petitioners    and    Sri

K.S.Abhijith, High Court Government Pleader.

7. Sri K.B.K. Swamy argued that the trial

court has considered the further statement of PW1

and the statements of the other witnesses under

section 161 Cr.P.C to hold that the prosecution has

been able to prove its case beyond reasonable

doubt. In this regard he submitted that it was not :: 8 ::

permitted for the trial court to consider the

statements under section 161 Cr.P.C as a

substantive piece of evidence unless contradictions

and omissions are proved in accordance with law.

The testimony of PW1 is not credit worthy, but the

trial court has believed her testimony by referring

to her further statement which is nothing but a

statement recorded under section 161 Cr.P.C.

7.1. The second point that he argued was

that according to PW1, she was assaulted on

6.10.2013; but she went to the hospital on

9.10.2013 and this is admitted by the doctor who

was examined as a witness. Delay in going to

hospital is not explained and so also delay in

making a report to the police is also not explained.

Though delay was by three days, in the facts and

circumstances it was inordinate and the trial court

ought to have appreciated this aspect.

:: 9 ::

7.2. The doctor has not given the age of the

injury in the wound certificate. The injuries

complained of could be self-inflicted also and in

the cases emerging from strained marital

relationships, it is quite possible that the events

will be exaggerated for falsely implicating the

husband and his relatives. This is one such case.

7.3. The trial court has not considered the

defence evidence in true spirit. It is settled

principle of appreciation of evidence that the

defence evidence must receive as much

importance as the prosecution evidence. The

judgments of the trial court and the appellate

court show that there is no proper discussion of

evidence given by DW1.

7.4. FIR came to be registered hurriedly with

the sole intention of ruining the image of the

accused in their social circle. The dispute arises

out of matrimonial disharmony and before :: 10 ::

registration of FIR, the SHO should have held

preliminary enquiry.

7.5. There is no proper discussion on the

evidence given by mahazar witnesses. If the

mahazar shows that both the accused were

present while drawing up spot mahazar, the

remand application shows that second appellant

had absconded. This discrepancy gives room for

doubting the prosecution case and the trial court

has failed to appreciate this aspect.

7.6. The evidence of DW1 clearly shows that

the accused have been falsely implicated. The

father of PW1 is richer than the accused. After the

marriage, PW1 found it difficult to adjust herself in

the house of accused and therefore she voluntarily

left the house of the accused and then made false

allegations. In fact when PW1 became pregnant,

the first accused took her to hospital for medical

check up and provided her best medical treatment.

:: 11 ::

Documents in this regard are produced. Instead

PW1 has gone to the extent of making false

allegations that the accused No.1 doubted the

paternity of the child.

7.7. As a whole the prosecution has failed to

prove the guilt of the accused. The appellate

court has mechanically confirmed the judgment of

the trial court. There is no proper re-appreciation

of evidence, rather the entire evidence appears to

have been appreciated perversely and hence the

judgments of the courts below are to be set aside

and the accused, acquitted of the offences with

which they have stood convicted and sentenced.

8. Learned Government Pleader argued that

PW1 is none other than the daughter of the

brother of the second accused. Unnecessarily she

would not make allegations against the accused,

her evidence shows that she was subjected to

physical and mental torture as she was unwilling :: 12 ::

to bring money and jewellery from her parents

house after the marriage. Normally no wife will

rush to the police station to make a complaint and

this is how the evidence is to be appreciated if

there is any delay in registration of FIR. The

evidence of father of PW1 further strengthens the

evidence of PW2. The mahazar witnesses are also

supported. The doctor has clearly stated about

the injuries that she noticed when she examined

PW1. Both the courts have properly appreciated

the evidence and therefore there are no grounds

to interfere with the impugned judgment.

    9.          I     have      considered          the   points    of

arguments.           This revision petition is filed by the

accused        questioning           the     correctness      of   the

concurrent          findings    of     the    two    courts    below.

Actually there is no scope for re-appreciation of

evidence in the revision. Since Sri K.B.K.Swamy

argued that the trial court has perversely :: 13 ::

appreciated the evidence and that the first

appellate court has failed to notice this aspect of

the matter, it is necessary in this revision petition

to examine whether evidence is properly

appreciated or not.

10. PW1 and 2 are the main witnesses. PW1

is the wife of first accused and PW2 is the father

of PW1. In the examination-in-chief, PW1 has

stated about negotiations held in the month of

December 2019 in a temple at J.P.Nagar in

connection with the marriage and that the bride

groom party demanded at that time for cash of

Rs.20,00,000/-, a gold chain, bracelet and a

diamond ring and that her father agreed for the

same. Then the marriage took place on 27.6.2010

at Bengaluru International Hotel. According to

PW1, in the month of March 2010, her father went

to the house of the accused and gave them cash of

Rs.10,00,000/-, a gold chain, bracelet and a ring.

:: 14 ::

Her father told he would pay the balance

Rs.10,00,000/- sometime later. She has stated

that after the marriage she went to her husband's

house and lived there for about six months. What

she has stated is that ten days after the marriage

the accused asked her to bring balance of

Rs.10,00,000/- and another sum of Rs.10,00,000/-

i.e., totally Rs.20,00,000/- and some more

jewellery. She did not tell this to her father

because he was suffering from heart disease.

Then accused No.1 insisted on bringing money, bet

her and told that if she would not bring money, he

would burn her by pouring kerosene and he would

not care for going to jail. When she became

pregnant, he told that he was not the father of the

child and forced her to abort the pregnancy. Then

she went to her father's house for delivery. She

gave birth to a female baby but, the accused did

not come to see the baby. An attempt was made to

convene panchayat but, the accused did not agree.

:: 15 ::

Her further testimony is that on 15.1.2013, her

father-in-law telephoned to her father and asked

them to come to Saibaba Temple at J.P.Nagar

along with the child and mother and accordingly

she went to that place along with her child and

parents and from there she came to the house of

the accused. She has stated that for about a

month she was treated well and again the accused

demanded for Rs.20,00,000/- and jewellery. In

this connection accused No.1 subjected her to

physical cruelty. Even he was not caring the child

and therefore at last, since she was assaulted, she

went to hospital for taking treatment to the

injuries sustained by her and made a report to the

police as per Ex.P1. She has spoken about

mahazar drawn as per Ex.P2.

11. On 23.2.2016 she was again examined in

chief and at that time she identified gold items,

two diamond rings and silver items. Again she :: 16 ::

stated that the first accused used to threaten to

set fire to her and force her to sign divorce

papers.

12. PW2 has stated in examination-in-chief

about pre-marriage negotiations, demand by the

accused for cash of Rs.20,00,000/-, gold items and

diamond ring, his agreeing for the same and giving

Rs.10,00,000/- and gold items in the month of

February 2010, i.e., before the marriage by going

to the house of the accused, demand by the

accused for Rs.20,00,000/- and gold after the

marriage, physical cruelty on his daughter in this

connection, the first accused suspecting the

character of his daughter, birth of a baby in his

house, receiving a call from the father of first

accused in the year 2013 to come to Saibaba

Temple at J.P.Nagar with his daughter and child

and his daughter going to her matrimonial home

from that place. He has stated that thereafter his :: 17 ::

daughter lived in the house of the accused for nine

months and that he came to know from his

daughter about the demand by the accused for

Rs.20,00,000/- and gold. He also stated that he

came to know from his daughter that she was

assaulted by the first accused and therefore her

daughter made a complaint to the police.

13. PW3 is the nephew of PW2. Firstly he

has spoken about the negotiation before the

marriage and demands put forward by the accused

at that time, and that his uncle, i.e., PW2 went to

the house of the accused a few days before

marriage and gave them cash of Rs.10,00,000/-,

gold ornaments and diamond ring. But with regard

to events after the marriage, he has just stated

that he came to know that the accused demanded

for Rs.20,00,000/- and in that connection PW1 was

subjected to harassment.

:: 18 ::

14. PW5 is a neighbor of PW2. He too has

stated what he came to know from PW2 about

harassment on PW1.

15. PW6 has stated that he attended the

marriage on 27.2.2010, PW1 and first accused led

a cordial matrimonial life for a few days after the

marriage and that whenever PW1 used to come to

her father's house she used to tell him that the

accused was demanding for Rs.20,00,000/- dowry.

He has stated further that PW1 came to her

parents house when she became pregnant and

even after delivery she stayed back in the parents

house and when he asked her about the reason for

the same, she told him that the accused would ill-

treat her for dowry and therefore she did not like

to go back to her matrimonial home.

16. PW8 has stated that he too had attended

the marriage and that when PW1 was pregnant,

she had sustained injury on her face and that she :: 19 ::

had stayed back in her father's house for long

time. At that time he asked her the reason and

came to know about the quarrel between her and

accused No.1 in regard to dowry and that first

accused had not taken her back.

17. PW9 is the doctor who examined PW1 on

9.10.2013 and noticed the presence of injuries like

abrasions and that she issued wound certificate as

per Ex.P12. PW17 is the investigating officer.

18. PW4 is a witness to spot panchanama

drawn on 9.10.2013 in between 2.00 and 2.30 PM

as per Ex.P2 in the house of the accused at VI

Phase J.P.Nagar, Bengaluru.

19. DW1 is the defence witness. He is the

husband of sister of accused No.2. The family of

the accused shifted their residence to a house in

the first floor of the building where he too was

residing in another floor. According to him since :: 20 ::

the accused were residing in the same building he

used to come to know about what was transpiring

in the house of the accused. He has stated that

first accused was getting monthly salary, PW1

hailed from an affluent family and that she desired

a luxurious life and after marrying the first

accused, she could not lead the kind of life she

wanted and therefore she tried to take the

husband to her parents house and therefore

started the quarrel. He has further stated that

she wanted to see cinemas in PVR Theatre, shop at

Shoppers' Stop and take treatment only in multi

super specialty hospitals. When she became

pregnant she went to her parents house. When

once he visited the shop of PW2 on 15.4.2011 he

came to know that PW1 had delivered a baby and

he informed this matter to the accused. Further

he has stated that the accused vacated his house

and shifted to J.P.Nagar and two to three months

thereafter, he called PW1, PW2 and the wife of :: 21 ::

PW2 to his house for discussion and advised them.

He told them that he would call the accused the

next day but, on the same night, PW2 telephoned

and told him that he had decided to go to court.

20. Before adverting to the answers given by

them in cross-examination, the findings of the trial

court and the appellate court may be referred.

The judgment of the trial court is very lengthy and

full of repetitions. It is held that the evidence of

PW1 is trustworthy; that she has narrated the

incident of assault on her, putting threat to pour

kerosene and kill her father besides suspecting her

character. As regards her inability to give the

specific dates of incidents, it is held that it is quite

common for a human being not possible to give

minute details of every thing. It is held that PW1

was standing in the verge of breaking her marital

life and in such a circumstance one has to think

about the dilemmas in her mind and therefore her :: 22 ::

failure to give full narration of incidents cannot be

given any significance. However, her testimony

shows that before and after the marriage there

was a demand for dowry by the accused. Her

father had partially fulfilled the demand before the

marriage and because there was demand for

Rs.20,00,000/- and some more gold ornaments

after the marriage, she was harassed and

subjected to cruelty. Her further statement given

before the police provide corroboration to her

testimony. Her father has also proved the

prosecution case. Moreover the testimonies of

PW3, 5, 6 and 8 prove that PW1 was subjected to

harassment for the sake of dowry. In cases of this

nature, only the close relatives and the friends

would come forward to testify the events. Just

because they are relatives and friends, their

evidence cannot be discarded. These witnesses

appear to be truthful. So far as the injuries are

concerned, the evidence of PW9 is helpful as she :: 23 ::

was the doctor who treated PW1. Though it was

true that the father of PW1 was financially better

placed than the accused, it does not mean that she

was accustomed to luxurious life. What PW1 and

PW2 have stated is that they were leading a

comfortable life and not luxurious life and

therefore the defence theory in this regard cannot

be accepted.

21. So far as the evidence of DW1 is

concerned, it is held that his evidence cannot be

believed because he had noted down the dates of

events on his left palm and that gave a clear

admission that he did not know as to what actually

had transpired in the matrimonial life of PW1 and

the first accused. With these reasons the trial

court came to conclusion to hold that the

prosecution was able to prove its case beyond

reasonable doubt.

:: 24 ::

22. The appellate court also has come to

same conclusions and has specifically observed

that the cross-examination of PW1 to 10 literally

does not benefit the defence in any way.

23. The judgment of the trial court shows

very well that it has found corroboration to the

testimony of PW1 from her further statement.

This is where the trial court has fallen in error. It

appears that the trial court has not understood the

scope of sections 161 and 162 of the Code of

Criminal Procedure. Probably the trial court might

have read the further statement of PW1 treating it

as continuation of Ex.P1, i.e., her report to the

police for registration of FIR. The further

statement is nothing but a statement recorded

under section 161 of Cr.P.C. and for this reason,

such a statement cannot be made use of to find

corroboration. Section 162(1) is a clear bar for

making use of any statement given by a witness :: 25 ::

before the police officer. The proviso to section

162(1) states that only a part of the statement

may be made use of by an accused to contradict a

witness in the manner provided under section 145

of the Indian Evidence Act. But before using part

of the statement as a contradiction, making of

such a statement must be duly proved. Looked in

this view, the trial court has straight away read

the entire further statement of PW1 to draw

inference that the testimony of PW1 is

corroborated from her further statement.

24. PW1 is the main witness. The other

witnesses including her father are not eye

witnesses and as their testimonies disclose, they

have stated on the basis of what they came to

know. Now if the evidence of PW1 is assessed, it

appears that firstly she has made allegations that

before and after the marriage the accused

demanded for dowry and in that connection that :: 26 ::

she was subjected to harassment after the

marriage. Therefore the ill-treatment and physical

harassment she has complained of is in relation to

dowry demand. But, the defence version is that

PW1 found it difficult to adjust herself in the house

of the accused who were placed in a lower strata

financially than her father.

25. It is true that if the entire examination of

PW1 is read, it appears as though she has not

been discredited. She has denied all the

suggestions that there was no demand for dowry,

that whatever was given to the accused before the

marriage was nothing but customary gifts

prevailing in the Sindhi community to which they

belong, that she used to be treated well in the

matrimonial home and rather it was she who used

to grumble being unable to adjust in the house of

the accused as she had been brought up in a

luxurious atmosphere. However, the defence :: 27 ::

counsel has been able to extract some admissions

from her. Both the courts below have not given

much importance to these admissions but, in my

opinion they are significant to assess

creditworthiness of PW1.

26. It is to be noted here that in Ex.P1, PW1

has not stated very specifically the amount that

the accused demanded towards dowry. She simply

stated that they demanded cash and jewellery. It

is only in the examination-in-chief she stated that

the accused demanded for balance of

Rs.10,00,000/- as agreed by PW2 before the

marriage and additional sum of Rs.10,00,000/- for

the purpose of constructing a house. But, in the

cross-examination she asserts to have stated in

her complaint, i.e., Ex.P1 that the first accused

demanded for Rs.10,00,000/- for constructing the

house and some jewellery. If she was so sure that

there was a demand for a specific sum of money, :: 28 ::

she could have stated about it in her report as per

Ex.P1. It is true that the report given to the

police need not contain all the minute details, but

when she was aware that the accused wanted a

certain sum of money and in that connection she

was subjected to harassment, she could have

mentioned about it in Ex.P1. Even if it is assumed

that this is a very trivial discrepancy in her

evidence, there are some other aspects which

cannot be ignored as trivial.

27. Her clear evidence in the examination-in-

chief is that after she went to her matrimonial

home, she was treated well for only ten days and

thereafter the accused started demanding for

money and jewellery and in that connection she

was ill-treated. She stayed in the house of the

accused for six months until she became pregnant

and went to her parents house. She has answered

in the cross-examination that she had brought to :: 29 ::

the notice of her father, mother and aunt who was

staying in the another house of the same building.

She has admitted that after six months she went

to the house of her father and she has given an

explanation here to the effect that since her father

was not keeping good health, she went to see him

and she has given admission further that she did

not return to the house of the accused thereafter.

If she went to see her father, she could have

returned to her matrimonial home after the

father's recovery from illness. Of course her other

answers indicate that she stayed back in the house

of her father as by that time she was pregnant.

She has stated that the accused did not turn up to

see the baby in spite of the same being informed

to them. She has stated that she herself

telephoned to the first accused and informed about

the birth of the female baby. But, DW1 has stated

that on 15.4.2011, he had been to the shop of

PW2 and at that time he came to know about the :: 30 ::

birth of the baby and then he informed the same

to the accused. Therefore if answer of DW1 is

taken to be true, whatever PW1 has stated that

she informed about the birth of the baby

immediately after delivery becomes difficult to be

believed. Be that as it may, as it does not matter

much.

28. It is admitted by PW1 that she stayed in

her parents house for two years. When she was

questioned whether there was any effort for

reconciliation of the relationship during that time,

her answer is that her father, mother, uncle and

cousins made efforts. If such an effort was really

made, there was no occasion for the father of

accused No.1 to contact PW2 to ask him to bring

PW1 and the baby to a temple on 21.1.2013. PW1

herself has stated in the examination-in-chief

about it. That means whatever she has stated

about the efforts made by her father and mother :: 31 ::

including herself to contact the accused cannot per

se believed to be true.

29. There is another main allegation by PW1

that the first accused doubted her character and

the paternity of the child. Even this allegation is

difficult to be believed because as has been

admitted by PW1, the accused No.1 took her and

the child to Sringeri for performing Aksharabhyasa

and then to the surrounding temples. She

admitted that accused No.1 himself admitted the

child to school called 'Euro Kids' and it was his

decision. If really the allegation made by PW1 is

believable, accused No.1 would not have shown

that much of interest.

30. When PW1 was specifically questioned

whether she had written in Ex.P1 that ten days

after she went to matrimonial home, the accused

insisted on bringing remaining Rs.10,00,000/- and

additional sum of Rs.10,00,000/- for the purpose :: 32 ::

of constructing a house and some more jewellery,

she answered that she just stated about demand

made by the accused. When the investigating

officer, i.e., PW10 was questioned whether such a

statement was made, his answer is that PW1 has

not stated so either in Ex.P1 or in her further

statement. Because of this answer by the

investigating officer, the truth in the main

allegation made by PW1 that she was subjected to

harassment by the accused in connection with

demand for dowry becomes doubtful to be

believed.

31. If the answers given by PW2 in the cross-

examination are considered, it is possible to infer

that he did not have first hand information about

the ill-treatment of his daughter and that he came

to know about it only from her. It is quite natural

also but, what is to be stated here is that his

certain other answers make his testimony :: 33 ::

unbelievable. He has clearly admitted that he has

not given any statement before the police that ten

days after his daughter started living with the

accused after the marriage, the accused demanded

Rs.20,00,000/- for constructing a house and some

more jewellery. He has further admitted that he

has not given statement before the police that

when his daughter returned to the matrimonial

home with the baby and stayed there for nine

months, the accused again started demanding for

Rs.20,00,000/-. With regard to these two

statements, his answer is that his daughter has

made such statements. Though PW10 has not

been questioned in this regard, it may be stated

that if according to him he did not make such

statements, his testimony in examination-in-chief

cannot be so easily believed.

32. Then with regard to the evidence given

by PW3, 5, 6 and 8, it is held by the courts below :: 34 ::

that their evidence provides corroboration to the

testimony of PW1 as in cases of this type, none

other than the close relatives and friends can be

examined as witnesses. To some extent the

observation of the trial court is correct, but it is

difficult to hold that their evidence provides

corroboration to the testimony of PW1. They have

deposed what they came to know from PW1 and

PW2. If the evidence of PW1 is again seen, she

has clearly stated that she had informed about the

demand for dowry and consequent ill-treatment to

her aunt who was living in another house of the

same building at Sahakarnagara. DW1 is the

husband of the aunt. The evidence of PW1 also

shows that her aunt was fully aware of the

strained relationship between PW1 and the

accused and the reasons for it. That means the

best witness for the prosecution would have been

her aunt and DW1. It is not known why the

investigating officer did not think it necessary to :: 35 ::

examine them during investigation. It is elicited

from PW10, the investigating officer, during cross-

examination that he did not examine anybody in

the neighbourhood of the accused.

33. PW7 was Assistant Sub-Inspector of

Police and his evidence shows that he was

deployed for arresting the accused and that he

arrested them on 9.10.2013 at about 10.30 AM at

M.S.Layout. His evidence totally contradicts the

evidence of PW10. He has very clearly stated that

when he went to the house of the accused for

conducting panchanama, the accused were very

much present in the house. If they were present

at that time, he himself could have arrested them

and where was the necessity for deploying PW7 for

arresting the accused. In this view, the probity in

the investigation can also be doubted.

34. The trial court has not believed the

testimony of DW1 just placing reliance on his one :: 36 ::

answer. That answer is that he did not know how

PW1 and first accused were living as husband and

wife and what used to transpire in their

matrimonial life. This is just a stray answer and

the question put to elicit this answer also appears

to be misleading. It is well established principle of

appreciation of evidence that the evidence as a

whole must be considered. The tenor of the

evidence given by DW1 is something otherwise in

the sense that according to him, PW1 found it

difficult to live in the house having been

accustomed to a kind of luxurious life which she

did not get in her matrimonial home, she started

quarrels with accused No.1. The trial court appears

to have not believed the evidence of DW1 because

of one stray answer noted above and for another

reason that he had gone to the court by noting

some dates on his left palm. For this reason alone

his evidence could not have been disbelieved. If

his cross-examination is seen, most of the :: 37 ::

questions pertain to his caste, inter caste

marriage, religious practices of the caste to which

he belongs, etc. They are all irrelevant. His

evidence clearly discloses that it was within his

knowledge as to what used to take place in the

house of the accused as he was staying in the next

floor. As has been observed already, he should

have been cited as a prosecution witness. If

intentionally he was not examined by the

investigating officer, only inference that can be

drawn is that probably for the reason that he

would reveal the truth, the investigating officer

might not have examined him and rather preferred

to cite those persons known to PW2 as witnesses.

In my opinion, absolutely there is no reason to

discard the evidence of DW1.

35. There is no rule that the evidence of the

relatives should be discarded. If interestedness is

proved, it is a good reason for discarding their :: 38 ::

testimonies. Here a little bit of interestedness on

the part of the witnesses may be demonstrated

and it is not out of context if it can be stated that

even the investigating officer might have yielded

to PW2. This can be demonstrated if panchanama

as per Ex.P2 is considered. The two panch

witnesses are Mohammed Nihal examined as PW4

and one Mujeeb Khan. These two persons were

workers in the shop of PW2 and this is admitted by

PW1. PW4 has also admitted in the cross-

examination about it. Ex.P2 was drawn in the

house of accused. PW10 has stated that the

witnesses were brought to that place by PW2.

PW10 has very well admitted in the cross-

examination that he did not summon any person of

that locality to be a witness for the panchanama.

This itself demonstrates the amount of interest

that PW2 had in the investigation. For this reason

if the investigating officer found it convenient to

cite PW3, 5, 6 and 8 as witnesses, probably it was :: 39 ::

at instance of PW2 being the father of PW1.

Thus seen, the interestedness in the testimonies of

other witnesses cannot be ruled out.

36. It is true that PW9 has given wound

certificate as per Ex.P12 after examining PW1 on

9.10.2013. PW1 complains of specific incident of

assault on her on 6.10.2013 and that she went to

the hospital on 9.10.2013. The injuries noted in

Ex.P12 are simple, some kind of abrasions on the

face, neck and chest region of PW1. In Ex.P12 the

history is written as assault, but the name of the

assailant is not written there. The date of incident

is also not written in Ex.P12. The date written is

9.10.2013, i.e., the day when PW1 was subjected

to medical examination. PW1 was taken to the

hospital by a police constable. In the

examination-in-chief, PW9 has stated that the

police constable gave the history as assault by

husband of PW1, if that is so in Ex.P12 it could :: 40 ::

have been written clearly. Just for this reason the

evidence of PW9 cannot be totally discarded. It

may be inferred probably some incident might

have taken place on 6.10.2013 and it is very

difficult to hold that PW1 might have been beaten

to compel her to bring dowry. As discussed above,

there is no clear proof that PW1 was subjected to

ill-treatment or harassment by the accused as she

refused to fulfill their demand for dowry. Each and

every misunderstanding and petty quarrel between

husband and wife do not amount to cruelty. As

DW1 has stated, probably PW1 might have found it

difficult to adjust herself in the house of the

accused. There is probability in the defence put

forward. For all these reasons, I am of the opinion

that both the courts below have erred in holding

the accused guilty of the offences with which they

were charged. Therefore I find that this revision

petition deserves to be allowed.

:: 41 ::

37. For the foregoing discussion, the revision

petition stands allowed. The judgment dated

6.2.2020 in Criminal Appeal 622/2019 on the file

of LXXI Additional City Civil and Sessions Judge

(CCH 72), Bengaluru, is set aside. Consequently

the judgment of the trial court in C.C.2831/2014 is

also set aside. The accused are acquitted of the

offences punishable under sections 3 and 4 of the

Dowry Prohibition Act and sections 498A, 323, 504

and 506 read with section 34 of Indian Penal Code.

Bail bonds of the petitioners are cancelled.

Sd/-

JUDGE

Ckl