G. Suchithra and Others vs State of Karnataka and Others

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 30.1.2012 passed by the Fast Track Court, Bangalore, in Sessions Case No. 1416/2010 is appealed against, both by the original complainant as well as the State.

Criminal Appeal No. 1027/2012 is filed by the complainant (PW-5), who is none other than the wife of accused No. 1.

Criminal Appeal No. 657/2012 is filed by the State.

The case of the prosecution in brief is that accused No. 1 married PW-5 (complainant) on 20.5.2009; accused No. 2 is the mother-in-law of the complainant; after marriage, both the accused started ill treating and harassing the complainant on one pretext or the other; at the time of marriage, the accused demanded dowry; the demand of accused was satisfied by the parents of the complainant; on 28.12.2009, she was assaulted by accused No. 2, consequent upon which she developed hearing problems in her ears; consequently, she was not hearing properly; on 20.2.2010, the accused tried to kill her by smothering her with the help of a pillow, while she was sleeping in her matrimonial house; she saved herself from the clutches of accused during the said night; on the next day i.e., on 21.2.2010, accused No. 1 kicked on the abdomen of the complainant, who was pregnant by then; consequently, the pregnancy was aborted; she took treatment in the Bowring hospital and Mallya hospital.

In order to prove its case, the prosecution in all, examined 12 witnesses and got marked 12 documents and 9 material objects. On behalf of the defence, no witnesses were examined. The Trial Court, on evaluation of the material on record acquitted the accused holding that the prosecution has not proved its case beyond reasonable doubt.

PW-5 is the complainant; PW-1 is her uncle; PWs. 2 and 3 are the police constables who arrested the accused; PW-4 is another matrimonial uncle of the complainant. PWs. 1 and 4 deposed about the marriage talks, additional demand of dowry and about the harassment; PW-6 is the father of complainant. His evidence is also on par with the evidence of PWs. 1 and 4; PW-7 is the witness for mahazar/Ex. P-7, under which M.Os. 1 to 9 were seized; PW-8, the PSI, who registered first information as per Ex. P-6. He conducted part of the investigation; PW-9 negotiated for marriage. He also deposed about the demand of dowry and payment of dowry; PW-10 is the doctor attached to the Bowring hospital, who issued the wound certificate as per Ex. P-12; PW-11 is the doctor of Mallya hospital, where the pregnancy of the complainant was aborted; PW-12 is the Inspector, who completed the investigation and filed the charge sheet.

Learned counsels on record have taken us through the entire material on record and argued in support of their respective cases.

Sri Chandramouli, learned counsel appearing on behalf of the accused draws the attention of the Court that though PW-4 participated in the marriage talks, has not deposed about the demand of dowry by the accused; the customary ornaments given to the bride and bridegroom cannot be treated as dowry; the evidence of PWs. 1, 4, 5, 6 and 9 in respect of demand of dowry etc., is unbelievable in as much as number of improvements were found in their evidence. The presence of PW-6 is doubtful in as much as his presence is no not deposed by PWs. 2, 5 and 9 at the time of marriage talks. He further submits that there were no medical records pertaining to Rudrappa Nursing Home, wherein, the victim allegedly taken treatment because of the assault by accused No. 2 on her ears. There were no injuries or scratches on the victim, not even struggle marks, found on the body of the victim. The pillow which was allegedly used for smothering the victim is not seized. The evidence of the Doctor PW-11 makes it clear that the victim has not suffered any injury and that there were no complications at all relating to the pregnancy of the victim. The doctor PW-11 has further deposed that the pregnancy of the victim was aborted at the voluntary request of the complainant.

We have perused the entire material on record meticulously. We find that the case as made out by the prosecution before the Court below, appears to be artificial and without any support from the witnesses. The Trial Court has assigned valid reasons to conclude that there was no demand of dowry or payment of dowry prior to the marriage, so also the material on record is not sufficient to conclude that there was demand by the accused relating to additional amount of dowry. It is admitted by the Investigating Officer that he has not seized the articles which are said to have been given to the bridegroom as dowry at the time of marriage.

PW-1/the uncle of PW-5 has deposed that the parents of PW-5 (victim) are poor and therefore, she was residing all through in the residence of PW-1; from her childhood, PW-5 was staying with PW-1 and it was PW-1, who performed the marriage of the victim with accused No. 1 by spending amount. In this context, it is also relevant to note that the parents of accused No. 1 are financially sound. Since the parents of the complainant were very much poor, it sounds unnatural that 2 1/2 lakhs rupees were given as dowry prior to the marriage and there was demand for 4 acres of land, apart from the residential site of Rs. 3.00 lakhs. Though, PW-1, uncle of PW-5 has looked after PW-5 from her childhood till marriage and though PW-1 has performed the marriage of PW-5 by spending his amount, he was not informed directly by the victim about the alleged harassment by the accused. On the other hand, it is the specific statement of the victim that she used to inform about the ill-treatment to her father (PW-6) over phone who was residing in far of place. These facts appear to be highly artificial. More over, gold chain, bracelet, ring, watch etc., given to the bridegroom at the time of marriage are generally being given to the bride and bridegroom as customary articles and cannot be treated as part of dowry. Having regard to the aforementioned facts and circumstances, the Court below is justified in concluding that the prosecution has not proved its case beyond reasonable doubt about the demand of dowry, demand of additional dowry and payment of dowry etc.,

It is the specific case of the prosecution as well as PW-5 that the complainant was assaulted by accused No. 2 on 28.12.2009 and therefore, she took treatment in Rudrappa Nursing Home. But curiously, no records are produced to show that the victim took treatment in Rudrappa Nursing Home. It is the further case of the prosecution that the accused tried to kill the victim by smothering her with the help of a pillow during the intervening night between 20.2.2010 and 21.2.2010; however, the victim saved herself and bolted the room from inside and slept. This allegation also does not find any support from any material on record; not even the pillow is seized by the prosecution during the course of investigation. There were no injuries found on the body of the victim, not even struggle marks were found on any part of the body of the victim. If really the accused tried to smother the victim with a pillow, atleast her nose would have bleeded to certain extent; her back would have been scratched atleast to certain extent. In the absence of any material in support of the said allegation of smothering, the Trial Court is justified in disbelieving the complaint of the complainant.

It is the further case of the prosecution that on 21.2.2010, accused No. 1 kicked on the abdomen of the victim and consequently, the pregnancy was aborted in the Bowring hospital. The doctor at Bowring hospital (PW-10) does not have any personal knowledge about the alleged abortion of the pregnancy of the victim. PW-10 has not examined the complainant at all when she was admitted to Bowring hospital. Ex. P-12 is issued by the Bowring hospital based on the information supplied by the Mallya hospital. The independent medical records pertaining to the Bowring hospital are not forthcoming on record.

The doctor attached to Mallya hospital is examined as PW-11. She is a gynecologist. She has deposed that no injuries were found on the body of the victim; there are no complications much less the complications relating to the pregnancy of the complainant. Pregnancy was aborted at Mallya hospital at the voluntary request of the complainant. The said doctor has further admitted that the complainant had no problems on 22.2.2010, when she examined her.

In the light of this evidence, it is clear that the prosecution has failed to prove that accused No. 1 kicked on the abdomen of the victim and consequently, the abortion has taken place. If really accused No. 1 has kicked on the abdomen of the complainant with great force, certainly she would have sustained some pain on that part. The aforementioned discussion of us leads to the only conclusion that the judgment of acquittal passed by the Trial Court is just and proper.

It is also brought to the notice of the Court by the advocates appearing on behalf of the complainant as well as the accused that the parties have compromised their differences before the Mediation Centre, Bangalore. It is also admitted by PW-5 before the Court below that M.Os. 1 to 5/gold ornaments are given to her custody by virtue of the interim order of the Court below.

Sri Chandramouli, learned counsel appearing for the accused submits that the accused will not claim those gold ornaments back to his custody in view of the compromise entered into between the parties. Thus, we make it clear that the gold ornaments M.Os. 1 to 9 shall remain in custody of the complainant/PW-5 (though the accused are acquitted in the matter).

A memo is filed by the appellant/original complainant in Criminal Appeal No. 1027/2012 seeking permission to withdraw the appeal. Memo is taken on record. Since an appeal is already filed by the State questioning the judgment of acquittal in Criminal Appeal No. 657/2012, a separate appeal i.e., Criminal Appeal No. 1027/2012 filed by the complainant (PW-5) does not survive for consideration.

On re-appreciating the material on record, we find that the reasons assigned and the conclusion arrived at by the Trial Court are just and proper. The view taken by the Trial Court while acquitting the accused is the possible view under the facts and circumstances of the case. Hence, no interference is called for. Appeals fail and the same stand dismissed.