IN THE HIGH COURT OF KARNATAKA AT
DATED THIS THE 18TH DAY OF SEPTEMBER 2014
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.959 OF 2009
State of Karnataka
By Honnali Police….APPELLANT
(By Shri. K.R. KeshavaMurthy, State Public Prosecutor 1)
Son of G.M.Basavarajappa,
Aged about 33 years,
Resident of Kundoor Village,Post Kundoor,Honnali Taluk….RESPONDENT
(By Shri. S. Vishwajith Shetty, Advocate)
This Criminal Appeal filed under Section 378(1)and(3)of
the code of Criminal Procedure, 1973, by the State Public
Prosecutor for the state praying to grant leave to file an appeal
against the judgment and acquittal dated 01.08.2009 passed by
the II Additional District and Sessions Judge, Davanagere in
Criminal Appeal No.150/2007 and thereby setting aside the
order of conviction and sentence dated 9.11.2007 passed by the
Civil Judge (Jr.Dn.) and JMFC., Honnali in C.C.No.273/2003 –
convicting the respondent/accused for the offence punishable
under Section 498(A) of IPC.
This appeal coming on for Hearing this day, the Court delivered the following:
Heard the learned State Public Prosecutor and the learned Counsel for the respondent.
2. The complainant, the wife of the present respondent is said to have married the respondent on 7.5.2001 and though she was happy with the respondent for a brief period of three months, it was alleged that she was ill-treated by the respondent and his family members, namely, accused nos.2 to 5 for dowry and she was constantly harassed and ill-treated both physically and mentally and she was driven to her maternal home on more than one occasion on account of such ill-treatment and unable to bear the cruelty, she had ultimately abandoned the respondent and thereafter had lodged the complaint alleging offences punishable under Sections 498A, 494 and 114 read with Section 149 of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC‘, for brevity). It was further alleged that the respondent had married one Basamma even during the subsistence of the marriage of the complainant and therefore the respondent was also guilty of having committed bigamy and sought punishment against the respondent and his family members.
After further investigation, a charge-sheet having been filed and after further proceedings, the trial court framed the charges. The accused had pleaded not guilty and claimed to be tried. The prosecution having tendered evidence of PWs.1 to 10 and having marked several exhibits, statements of the accused were recorded under Section 313 of the Code of Criminal Procedure,1973 (Hereinafter referred to as the “Cr.PC“, for brevity) and the trial court had framed the following points for consideration:-
“1. Whether the prosecution proves beyond all reasonable doubts that about 1½ years prior to 13.01.2003 accused no.1 married C.W-1 and led happy material life for about 3 months and afterwards accused No.1 to 3 caused mental and physical torture to C.W-1 and thereby committed an offence punishable under Section 498A of the Indian Penal Code?
2. Whether the prosecution further proves beyond all reasonable doubt that on 27.1.2002 accused No.2 to 5 have performed the 2nd marriage of accused no.1 during the subsistence of his first ma1rria1ge wi1th C.W-1 and thereby committed an offence punishable under Section 494 read with 149 of the Indian Penal Code?
3. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place accused No.2 to 5 have abetted accused No.1 to perform the 2nd marriage during the subsistence of his first marriage and thereby committed an offence punishable under Section 114 read with 149 of the Indian Penal Code?”
3. The court below has answered point no.1 in the affirmative and point nos.2 and 3 in the negative and convicted the accused for offences punishable under Section 498A of IPC, while acquitting other accused 2 to 5 and also acquitted the accused – respondent herein for the offence punishable under Section 494 IPC. That having been challenged in appeal by the present respondent, the appellate court has reversed the judgment of the trial court. It is that which is under challenge in the present appeal by the State.
4. Though several grounds are urged to justify the conviction by the trial court and to challenge the judgment passed in appeal, the very findings of the appellate court has found that insofar as the conviction of the respondent for an offence punishable under Section 498A of the IPC, the trial court had placed reliance on the evidence of PWs.1 to 5 and it is noticed that PWs.2 and 3 were the parents and PWs.4 and 5 were interested witnesses, who had tendered evidence on behalf of the complainant. It is further observed that they were not eye-witnesses to the alleged cruelty meted out to the complainant and their evidence is not supported by any independent evidence nor any medical or other acceptable evidence. The investigating officer himself had not been examined and there was inordinate delay of one year in lodging the complaint. Insofar as the physical ill-treatment was concerned, though PW.2 had stated that the treatment was given to her for injuries suffered by her, there was no evidence of any neighbours of the accused, who would be competent to speak about such incident. It is noticed that PW.1 the complainant has admitted that she had abandoned the respondent one year prior to the lodging of the complaint and had not chosen to lodge a complaint immediately after she left the home of the respondent, but chose to file one year later and therefore, the delay was unexplained and could not be overlooked by the trial court and has further disbelieved the case of the complainant since she had claimed that she was beaten with a stick and she had suffered bleeding injuries as stated in her petition for maintenance, but there was no evidence of any treatment having been given to her as a result of such assault. It is further found that other witnesses had turned hostile and therefore there wasno independent witness to support the case of the prosecution., Further, since the trial court had thought it fit to acquit the accused no.2 to 5, against whom allegations were common as in the case of accused no.1, it is inexplicable that different yardsticks are applied in holding that the appellant was guilty of an offence punishable under section 498A while the other accused were not. There is no reasoning available of the trial court to justify such conclusion being drawn and therefore, the appellate court has set aside the judgment insofar as the convicting the present respondent is concerned. Though the learned State Public Prosecutor seeks to canvass the ground with vehemence, there is little substance in the finding against the respondent by the trial court and the appellate court has rightly set aside the said judgment. There is no warrant for interference. The appeal is rejected.