Chandrashekhar vs State of Karnataka

V. Jagannathan, J.—This criminal revision petition is by the first accused who was convicted for the offence punishable u/s 498-A r/w 34 of IPC and was sentenced to one year S.I. The judgment of the trial court was confirmed by the lower appellate court by dismissing the appeal preferred by this Petitioner.

Tho case of the prosecution in short is that, a complaint was lodged by one Radha, wife of the Petitioner herein alleging that, though she was married to A-1 on 15.12.96 as per the Hindu customs and Rs. 20,000/- was given as dowry besides gold and other things, subsequent to the marriage, all the accused persons numbering seven in all, being the husband and other relatives of A-1, harassed the complainant by demanding Rs. 50,000/- more to be brought from her parental house and in this connection the complainant was subjected to abuse and assault.

The said complaint led to a case being registered against seven accused persons'' out of whom A 5 did not take up the trial his the case was split up following the said accused being found absconding. The remaining accused persons viz., A-1 to A-4, A-6 and A-7 faced the trial as they did not admit their guilt to the charge levelled against them. The prosecution to prove its case, examined four witnesses and five documents were marked. Accused statement was recorded and accused did not lead any defence evidence.

Learned trial judge, after appreciating the evidence on record, found that the evidence was not sufficient to convict the accused Nos. 2, 3, 4, 6 and 7 and all of them were acquitted and only the present Petitioner who is A-l was convicted for the offence punishable u/s 498-A of IPC and sentenced as mentioned earlier. The lower appellate court confirmed the trial court''s verdict.

I have heard learned Counsel Sri. Hareesh Bhandary for the Petitioner and learned Government Pleader for the Respondent-State and perused the records.

Submission of the learned Counsel for the Petitioner is that, when the trial court found that the evidence was not convincing to convict the other accused persons viz., A-2 to A-4, A-6 and A-7, how the same evidence could have been held to be convincing against this Petitioner, is the point for consideration.

It is his submission that the trial court disbelieved the evidence of PWs 1 and 2 insofar as the charge levelled against the other accused persons is concerned. As such, the evidence of the said witnesses could not have been banked upon to convict this Petitioner alone. Further submission made is that, in the instant case, the prosecution did not examine the doctor to show any injury being caused to the complainant and secondly the investigating officer was also not examined by the prosecution. Examination of the investigating officer was very much necessary in the instant case because the complainant has made several improvements in material aspects when giving her evidence before the court and with regard to those improvements the complainant is totally silent. The other witnesses have also made material improvements and therefore the on examination of the investigating officer was also a serious infirmity in the prosecution case. As such, the Petitioner also should have been acquitted.

On the other hand, submission of the learned Government Pleader is that, the trial court was right in convicting this Petitioner alone as the witnesses PWs 1 and 2 have spoken against this Petitioner and he being the husband of the complainant, harassed his wife demanding more dowry. Therefore, the judgment of the courts below does not call for any interference

Having thus heard both sides and after going through the evidence on record, what strikes at first is, the trial court did not believe the evidence of PWs 1 and 2 to convict all the other accused persons except the Petitioner and the reason being the testimony of PWs 1 and 2 was found to be not reliable and trustworthy. If that is the reason for rejecting the evidence of PWs 1 and 2, I see no justification in relying on the very same witnesses to convict this Petitioner alone. When the witnesses testimony was found to be unreliable and not trustworthy, it is an indication of the witnesses being not truthful and evidence of such witnesses therefore could not have been accepted by the trial court to convict only this Petitioner, who happens to be the husband of the complainant.

Another serious infirmity in the prosecution case is that the learned Counsel for the Petitioner was able to point out, the material improvements made by PW-1 in the course of her evidence and in the complaint no such statements are to be found. In other words, the testimony of the complainant suffers from serious infirmity of there being material improvements over the complaint version in several aspects of the matter and such being the nature of evidence of PWs-1 and 2 as well, non-examination of the investigating officer therefore will have to be held as a serious infirmity.

Merely because the investigating officer is not examined, that itself is not a serious defect in the prosecution case so long as the evidence on record is found to be reliable and trustworthy. But whether the testimony of PWs 1 and 2 was rejected by the trial court as not being reliable, and the witnesses also make several improvements in their evidence, the accused therefore lost the opportunity of questioning the investigating officer with regard to the omissions, contradictions as well improvements made by PWs 1 and 2. As such, non-examination of the investigating officer has prejudiced the case of the Petitioner and under such circumstances, in die instant case, the trial court as well as the lower appellate court committed the mistake of not noticing the aforesaid infirmity in the prosecution case viz., non examination of the investigating officer.

Another aspect of the matter is that, the complaint as well as the evidence of PW-1 is to the effect that the complainant was assaulted by the accused persons, including this Petitioner. As rightly submitted by the learned Counsel for the Petitioner, no doctor was examined before the trial court to show that the complainant sustained any injuries to believe her statement. Thus, the entire evidence taken on record should have led to the Petitioner also being given the benefit of doubt instead of being, convicted while rest of the accused persons are acquitted on the basis of very same evidence placed by the prosecution. As such, the conviction of the Petitioner cannot be sustained in law fox the aforesaid reasons.

In the result the petition is allowed and the judgment of the courts below convicting the Petitioner for the offence punishable u/s 498-A of IPC stands set aside and the Petitioner is acquitted of the offence with which he was charged. His bail bond shall stand cancelled and if any amount is deposited by the Petitioner, the same shall be refunded to him.