1. This is a State Appeal preferred against the judgment in C.C. No. 31/1990 on the file of the Court of the Chief Judicial Magistrate, Hassan dated 4-5-1991 acquitting the accused (respondents) of the offences under Ss. 498-A read with S. 34, IPC, 432 r/w, S. 34, 323 r/w S. 34 and 114, IPC.
2. This appeal came up for hearing on the question of admission on 15-3-1996. The complainant, his daughter who is alleged to have been ill-treated and the accused, filed a compromise petition I.A. II in this Court S. 320 of the Code of Criminal Procedure ('Cr.P.C.' for short) and prayed for permission to compound the offences. The complainant, who is the father of Nagalakshmi and the accused Nos. 1 and 2 were present before Court in person and admitted the execution of the compromise petition. The accused Nos. 3 and 4 were not present in person. They appeared through their Counsel Sri Ashok Haranahalli, who also admitted the execution of the compromise petition.
3. The learned counsel for the respondents argued that except the offence under S. 498-A, IPC, the other offences alleged are compoundable and even with regard to the offence under S. 498-A, IPC, considering the fact that it is a matrimonial offence and since the parties have entered into a compromise and C.W. 2 Nagalakshmi is living along with the accused amicably, as a special case, permission may be granted to compound the said offence and the compromise petition may be accepted. In support of his argument that such permission can be granted, he relied upon a decision reported in (1990) 3 Kant LJ (Supp) 491 State of Karnataka v. Basavaraju a Bench decision. Hon'ble Mr. Justice D. P. Hiremath and Hon'ble Mr. Justice K. Ramachandraiah, while considering a similar situation relating to an offence under S. 498-A, IPC in that case, held as follows :-
'It may be added at once that unless there are peculiar circumstances and a case can be said to be a special one, permission to compound any non-compoundable offence should not be granted as a matter of course. It all depends on the circumstances under which the compromise petition comes to be filed. The trial Court kept in its view the welfare of the parties in the matrimonial case of this nature and did not want the feeling between the parties be strained for the rest of their life. Keeping this larger interest of the couple and its impact on the society, the trial Court relied on the above decision and accorded permission. In our view the trial Court did not commit any error in according permission and as a result of compromise acquitting the accused.'
In the said decision, reliance has been placed upon a decision of the Supreme Court reported in : 1988CriLJ121 (Mahesh Chand v. State of Rajasthan). In that case the Supreme Court granted permission to compound an offence under S. 307, IPC which is not compoundable. The decision in (1990) 3 Kant LJ (Supra) 491 (State of Karnataka v. Basavaraju) supports the learned counsel for the respodents.
4. The learned High Court Government Pleader, opposing the application I.A. II, argued that the decision in Basavaraju's case mentioned supra relied on by the learned Counsel for the respondents, has no application to the facts of the case on hand and in a later decision reported in ILR 1994 Kant 1543 (State of Karnataka v. Revanasiddappa), another Bench of this Court consisting of Hon'ble Mr. Justice B. N. Krishnan and Hon'ble Justice Mr. Justice Kumar Rajaratnam, taken a different view and have held that in view of S. 320(9) Cr.P.C. permission to compound an offence which is not compoundable, cannot be given at all. He submitted that in the decision of the Supreme Court referred to in Basavaraju's case, the Supreme Court acted under the plenary jurisdiction of the Supreme Court under Art. 142 of the Constitution which powers are not available to either the High Courts or to the subordinate Criminal Courts. He submitted in Basavaraju's case, the provision under sub-sec. (9) of S. 320 has not been brought to the notice of the Supreme Court and therefore the decision in Basavaraju's case can be said to be only per incuriam and is not a binding precedent. He therefore submitted that it is the law laid down by this Court in the later decision in Revanasiddappa's case ILR 1994 Kant 1543 which is applicable and therefore the permission to compound sought for in I.A. II cannot be granted.
5. On a careful perusal of the decision in Revanasiddappa's case, I find that submissions made by the learned High Court Government Pleader are correct. After considering all aspects of the matter, this Court has held in that decision that the decision of the Supreme Court in Mahesh Chand's case (1989 Cri LJ 121) and the decision of this Court in Basavaraju's case are decisions pericardium and are not binding precedents. This Court held clearly in Revanasiddappa's case, neither this Court nor the subordinate Criminal Courts have any power to permit compromising in respect of a non-compoundable offence which does not come within the table given under S. 320, Cr.P.C.
6. The learned counsel of the respondents argued that this Court can act under S. 482, Cr.P.C. and grant permission to compound. I do not think this argument can be accepted. A statutory bar under S. 320(9), Cr.P.C. cannot be overcome by resorting to the inherent powers under S. 482, Cr.P.C. The learned counsel for the respondents has not brought to my notice any decision which supports his arguments. In view of this clear position under the law, the application I.A.II cannot be allowed and has to be dismissed.
7. In view of this position and since I found that the matter can be disposed of on merits at this stage itself; I have heard the learned High Court Government Pleader for the appellant and Sri Ashok Haranahalli, the learned counsel for the respondents on the merits of the matter and have perused the records.
8. The facts leading to the filing of the charge sheet have been narrated in para 1 of the impugned judgment. It reads as follows :-
'The PSI, Extension police station, Hassan has presented this charge sheet alleging that A1 being the husband of CW 2 under the instigation of A2 to A4 abused P.Ws. 1 to 4 with indecent language prior to 11-11-1984 with an intention of ill-treating C.W. 2 and the accused persons in furtherance of their common intention, ill-treated C.W. 2 without maintaining her properly and compelled her to fetch Rs. 18,000/- from C.W. 1 and that on 11-11-1984, all the accused assaulted C.W. 2 with their hands and legs and wrongfully confined her in a room of their house refusing to send her with C.Ws. 4 to 6 to attend a function in the house of C.W. 1. A2 to A4 abetted commission of these offences by the A1 and thereby the accused are liable to be punished under Ss. 498-A, 342, 323, 114, r/w 34, IPC.'
9. Since the accused pleaded not guilty, the prosecution examined 13 witnesses in support of its case and relied upon the documents Exs. P1 to P4.
10. A1 is the husband of P.W. 2 Nagalakshimi. Accused Nos. 2 and 3 are the parents-in-law of P.W. 2. Accused No. 4 is the sister of accused No. 1. In Ex. P1 the FIR, the father of P.W. 2, Shyama Iyengar, who is examined as P.W. 1, has alleged that on 11-11-1984 when some persons on his behalf went to the house of the accused to invite accused No. 1 and his wife for a function in the house of the complainant, all the accused insulted the persons who had come to invite them and refused to send P.W. 2. It is alleged then the sister's son of the complainant by name Krishnamurthy (P.W. 4) and one C. N. Pranesh (P.W. 6) his elder brother, went to invite accused No. 1 and his wife. Accused No. 4 refused to call them inside the house. It is alleged, inspite of it, P.Ws. 4 and 6 went inside the house and found that P.W. 2 had been assaulted and had been wrongfully confined in a room. It is alleged P.W. 2 complained that she apprehends danger to her life at the hands of the accused or she would be driven to commit suicide. The charge sheet in the case reads that the accused ill-treated P.W. 2 and compelled her to fetch Rs. 18,000/- from P.W. 1 and the accused assaulted her and wrongfully confined her. While the accused No. 1 is said to have committed these offences, A2 to A4 are said to have abetted the commission of the said offences.
11. The learned High Court Government Pleader, at the time of arguments contended that the appreciation of the evidence on record by the Trial Court is not proper and the evidence on record amply establishes the case against the accused. On the other hand, the learned counsel for the respondents argued that the evidence is far too inadequate to prove the alleged offences, there is some improvement made by the prosecution in its case stage by stage and the learned Trial Judge has rightly appreciated the evidence on record and held that the prosecution has not established the case against the accused beyond all reasonable doubts.
12. The learned Magistrate has rightly observed that in Ex. P1, there is no reference to the alleged demand for Rs. 18,000/- by the accused. It is an improvement and a significant omission. As pointed out by the learned Trial Judge, if the demand were to be true, then P.W. 6 who is a Police Head Constable, would not have failed to mention about it in Ex. P1. This is a serious lacuna in the prosecution evidence and throws lot of doubt upon the prosecution case that there was such a demand by the accused. In the evidence of P.W. 1, there is reference to an earlier complaint Ex. P. 4 dated 9-4-1982. The discussion of the same in para 7 of the impugned judgment goes to show that complaint was looked into by the Investigating Agency and they did not find it necessary to take action and so it was ordered to be filed. The learned Magistrate has rightly observed that in view of the later complaint Ex. P1 on the basis of which the charge sheet has been filed, the facts narrated in Ex. P4 would not be germane to the case. Section 498-A, IPC explanations (a) and (b) define 'cruelty'. They reads as follows :-
'(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 of 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.'
On a careful perusal of the impugned judgment and the evidence of P.Ws. 1 to 8 in the case, I am inclined to accept the argument of the learned Counsel for the respondents that the evidence in this case does not show that the accused have committed any acts of cruelty within the meaning of these explanations. As pointed out by the learned Magistrate, in Ex. P1 there is nothing to show that the accused demanded Rs. 18,000/- or any other valuables from P.W. 1 through P.W. 2. It is only during the course of the evidence of P.W. 1 and P.W. 3 that such a case is tried to be built up. The learned Magistrate has rightly pointed out that even in the earlier complaint Ex. P4, there is nothing to show that there was any such demand.
13. Again, as observed by the learned trial Judge, P.W. 2 herself has not stated in her evidence that the conduct of the accused persons was such that, thoughts of suicide came to her mind or she apprehended grave injury or danger to her life. The evidence also discloses that while Ex. P1 relates to an incident alleged to have taken place on 11-11-1984, the alleged demand for Rs. 18,000/- by the accused was during 1981 and 1983 which was long prior to the alleged incident on 11-11-1984.
14. The evidence of P.Ws. 1 to 3, as has been observed by the learned Trial Judge, goes to show that a compromise was brought about at the intervention of P.W. 8 with regard to the incident mentioned in Ex. P4. According to the compromise, the differences between the couple were squared up and accused No. 1 and P.W. 1 continued to live together. As observed by the learned Magistrate, if there was really a demand for Rs. 18,000/- made by accused No. 1, there could not have such a compromise without settling the said demand allegedly made by accused No. 1. These circumstances create a lot of doubt upon the prosecution case that there was a demand for Rs. 18,000/- by the accused from P.W. 1 through P.W. 2.
15. As observed in the impugned judgment, when it is not established by the prosecution that there was any such demand for money by the accused, the allegations of harassment and coercion to P.W. 2 fizzles away. All that can be said from the evidence of P.Ws. 1 to 8 and what is stated in Ex. P1 is that there was some family misunderstandings between P.W. 1 on the one hand and the accused on the other hand and nothing more than that.
16. With regard to the allegation of wrongful confinement, the evidence is not free from doubt. P.Ws. 4 and 6 have admitted in their evidence that there were no male members in the house of the accused when they went there on 11-11-1984. There is no positive evidence to show that the accused had locked up P.W. 2 in the room. P.W. 4 has stated in his evidence that when himself and P.W. 6 questioned accused Nos. 3 and 4 as to why they had locked up P.W. 2 in the room, accused Nos. 3 and 4 told them that some children had bolted the door and they had not locked up P.W. 2 in the room, but P.W. 6 says in his evidence that when they questioned accused Nos. 3 and 4 they told them that the male members had confined P.W. 2 in a room. Thus, the evidence of P.Ws. 4 and 6 in this regard is inconsistent and creates a reasonable doubt with regard to the prosecution case that P.W. 2 was wrongfully confined. In Ex. P4 it is stated that P.Ws. 4 and 6 brought out P.W. 2 from the room and freed her, but P.Ws. 4 and 6 in their evidence say that they were not allowed to go near the room and they were not able to free P.W. 2. Further, as pointed out by the learned Trial Judge in para 22 of the impugned judgment, the house of the accused is situated in a vatara where there are five or six houses. The evidence on record goes to show that on the date of alleged incident, that is on 11-11-1984, a death had taken place in one of those houses and dead body had been kept outside and number of persons had gathered in the vatara. Under such circumstances, it is rather difficult to believe that the accused had wrongfully confined P.W. 2 in a room. No independent witnesses have been examined in support of the prosecution case. The evidence consists of only the evidence of the relatives and associates of P.Ws. 1 and 3 to 8 which is interested and therefore has to be considered with great caution.
17. In para 24 of the impugned judgment, the learned Magistrate has also pointed out certain inconsistencies in the evidence relating to Ex. P2, a mahazar under which, according to the prosecution, P.W. 2 was freed. The presence of the accused persons in the house is not mentioned in the mahazar. It is pointed out that it is also not stated in Ex. P2 as to which bolt or latch had been put to the door of the room in which P.W. 2 was confined. The learned Trial Judge has observed that this assumes importance in view of the contradictory evidence of P.Ws. 4 and 6 in this regard. He has pointed out that P.W. 6 has stated in his evidence that police only observed the house of the accused. Therefore, even Ex. P2 is not free from doubt.
18. The prosecution has not make any attempt to examined any of the residents of the vatara, with the result, we do not have any independent evidence at all with regard to the alleged wrongful confinement.
19. With regard to alleged assault on P.W. 2, Ex. P5 the wound certificate and the evidence of P.W. 10 go to show that there were no external injuries on P.W. 2. P.W. 10 has only stated that P.W. 2 complained of pain in the body, but P.W. 2 herself has not stated so in her evidence. Therefore, even the offence alleged under S. 323, IPC has not been made out. Eventhough P.W. 3, the mother of P.W. 2 has stated in her evidence that some neighbours informed her that P.W. 1 has been ill-treated by the accused, she has not given the names of those neighbours who had given her information. There is no investigation done on this aspect of the matter. The learned Magistrate has therefore rightly appreciated the evidence on record and has come to the correct conclusion that the prosecution has not established the case against the accused beyond all reasonable doubts. There is no merit in the contention of the learned High Court Government Pleader that the appreciation of the evidence by the Trial Court is not proper and the evidence is sufficient to base a conviction. I find there are no grounds to interfere with the judgment of the Trial Court. The appeal is therefore liable to be dismissed.
20. For the reasons aforesaid, the appeal is dismissed.
21. Appeal dismissed.