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Mahantesh S/O Hanumappa Hagedal vs The State Of Karnataka on 17 July, 2019

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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

DATED THIS THE 17TH DAY OF JULY 2019

BEFORE

THE HON’BLE MR. JUSTICE BELLUNKE A.S.

CRL.A NO 2889 OF 2010

BETWEEN

MAHANTESH S/O HANUMAPPA HAGEDAL,
AGED: 24 YEARS, OCC: COOLIE,
R/O AIHOLE, TQ: HUNAGUND,
DIST: BAGALKOT.
….. APPELLANT
(BY SRI K M SHIRALLI, ADV.)

AND

THE STATE OF KARNATAKA
BY HUNAGUND POLICE
R/O BY SPP.
HIGH COURT OF KARNATAKA
CIRCUIT BENCH DHARWAD
….. RESPONDENT
(BY SRI RAJA RAGHAVENDRA NAIK, HCGP)

THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C.
SEEKING TO SET ASIDE THE JUDGEMENT AND ORDER OF
CONVICTION DATED 1.12.2010 PASSED IN S.C.NO.126/2009
BY THE HON’BLE DISTRICT AND SESSIONS JUDGE, BAGALKOT
AND ACQUIT THE APPELLANT/ACCUSED.

RESERVED FOR JUDGMENT ON : 26.05.2019
JUDGMENT PRONOUNCED ON : 17.07.2019
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THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING :

JUDGMENT

This is an appeal preferred against the

judgment of conviction and sentence passed by

the learned Sessions Judge, Bagalkot, in S.C.

No.126/2009, dated 01.12.2010 wherein the

accused has been convicted for the offences

punishable under Sections 498-A and Section306 of IPC

and sentenced to undergo simple imprisonment for

two years and to pay a fine of Rs.3,000/- and in

default, to undergo simple imprisonment for two

months for the offences punishable under Section

498A of IPC. Accused has been sentenced to

undergo rigorous imprisonment for six years and

to pay a fine of Rs.7,000/- and in default, to

undergo rigorous imprisonment for one year for

the offences punishable under Section 306 of IPC.
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2. Briefly stated the facts of the case for

the purpose of this appeal are as under:

Complainant’s sister Ratnavva married to the

accused about 9 years back from the date of the

complaint. At that time, she was a minor. Two

years’ prior to the incident, Ratnavva went to the

husband’s house to reside with him. Whenever

she visited the house of her parents, she used to

complain of harassing and demanding

Rs.1,00,000/- and 5 tola gold to be brought from

her parents house. Family members used to

pacify her and used to send her back. In this

regard, a panchayat was held in the presence of

elders on this issue. Thereafter, 12 days prior to

the incident, accused had been to the house of

complainant on which day Seemantha ceremony

was being performed as Ratnavva was pregnant.

At that time, accused told the complainant’s family

that unless they meet his demand, he will not

send his wife to their house. Thereafter, on
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27.01.2009, complainant received a telephone call

from one Shivappa Kelur stating that Ratnavva is

dead. immediately, the complainant and his

family members went there and on enquiry of the

neibours, it came to know that they heard some

voice on the previous night. Therefore, the

complaint came to be filed as per Ex.P-1 alleging

that in the intervening night of 26.01.2009 and

27.01.2009, the accused has strangulated

Ratnavva. On that basis, a crime came to be

registered. The Investigating Officer conducted

investigation. Thereafter, the charge sheet was

filed before the jurisdictional Magistrate against

the accused for the offence punishable under

Sections 498-A and Section306 of IPC and Section 4 of

Dowry Prohibition Act.

3. Learned Magistrate took cognizance of

the alleged offences and committed the case to

the Sessions Court for trial as the offence
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punishable under Section 306 of IPC is exclusively

triable by the Sessions Court. The presence of the

accused was secured. After hearing the

prosecution and accused, learned Sessions Judge

registered S.C.No.126/2009 and found that there

are no sufficient material to frame charge against

the accused for the offences punishable under

Section 4 of D.P. Act and therefore, charge came

to be framed only for the offence punishable under

Sections 498-A and Section306 of IPC. Accused pleaded

not guilty. Therefore, learned Sessions Judge held

trial of the case. After hearing both the sides and

on appreciation of evidence on record, learned

Sessions Judge came to the conclusion that the

offence punishable under Sections 498-A and Section306

of IPC are proved against the accused beyond any

reasonable doubt. Consequently, learned Sessions

Judge acquitted the accused for the offence

punishable under Section 4 of D.P. Act and

convicted only for the offence punishable under
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Sections 498-A and Section306 of IPC as stated above.

Prosecution has not filed any appeal against the

acquittal of the accused for the offence punishable

under Section 4 of D.P. Act or not framing charge

for the offence punishable under Section 3 of D.P.

Act. The said judgment has been questioned by

the appellant on following grounds:

1) The trial Court has not appreciate d the
evide nce o f PW-3 where in he is no t aware
of the co ntents of the complaint at Ex.P-

1.

2) The trial court has belie ved o nly the
inte reste d and relative’s witnesses of the
deceased.

3) There is no iota o f evidence to pro ve the
guilt of the accused. Trial Co urt has not
appreciate d the e vidence on reco rd.

4) Trial Court has not perce ive d the
imponde rables found in the e vide nce .

5) Prosecutio n has faile d to pro ve the guilt
of the accuse d.

Therefore, appellant has sought for setting

aside the judgment of conviction and sentence and
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to acquit him of all the charges leveled against

him by allowing this appeal.

4. Learned counsel for the appellant

submitted that the ingredients of Section 498A

and Section306 of IPC are not at all made out. Though

six persons were named in the complaint,

subsequently, accused Nos.2 to 6 were given up at

the time of filing charge sheet. The prosecution

has not preferred any appeal against the acquittal

of the accused for the offence punishable under

Section 4 of D.P. Act. The evidence of PWs-1 to 3

contradicts each other. They are closely related to

each other. PWs-5 and 7 alleged independent

witnesses have not supported the case of the

prosecution. Prosecution has failed to prove the

guilt of the accused beyond any reasonable doubt

to convict the accused. Hence, learned counsel

prayed to set aside the judgment of conviction and

sentence and to acquit the accused.
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5. Learned H.C.G.P submitted that there

are no grounds to disbelieve the evidence of PWs-

1, 2 and 4 who are the independent witnesses.

Since other witnesses are neibours, they were not

supported the case of the prosecution.

Prosecution has proved the guilt of the accused.

Therefore, learned H.C.G.P. prayed to confirm the

judgment of conviction and sentence passed by

the learned Sessions Court.

6. On the basis of the above said pleadings

and rival contentions, the following points would

arise for consideration:

1) “Whether the prosecution had proved
before the trial Court beyond any
reasonable doubt that the accused
had caused cruelty to the deceased
and thereby caused abetment to the
deceased to commit suicide and has
committed offence punishable under
Sections 498-A and Section306 of IPC ?

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2) Whether the appellant proves that the
judgment of the trial Court is against
to the facts and evidence on record
and is perverse, capricious and
therefore, liable to be set aside?

3) What order?”

7. Before discussing about the evidence on

record, I would like to emphasize the position of

law settled by the decision of the Hon’ble Supreme

Court in the case of SectionRajbabu and another v.

State of Madhya Pradesh reported in (2008) 17

Supreme Court Cases 526 wherein the Hon’ble

Apex Court has held that “unless there is direct

evidence to show that the accused was aiding or

instigating the deceased to commit suicide, or

entered into conspiracy to aid her in committing

suicide, the accused cannot be convicted for the

offence punishable under Section 306 of IPC.”
10

8. It is the bounden duty of the

prosecution to prove its case as made out in the

charge sheet. The fact to be borne in mind is that

the deceased was a minor when she married to the

accused. Probably the accused was also quite a

young boy. They have led married life nearly

about 9 years. Some evidence has also come on

record by way of suggestions that the girl was not

intended to go to her matrimonial house. May be

on account of her tender age because she was

sent to matrimonial house immediately after

attaining puberty. In addition to that, the

marriage of accused as well as his brother’s were

performed together. It is also important to note

that the accused and the deceased are closely

related. It is also stated by PW-1 that though the

family members of the deceased insisted the

deceased to stay in her parents house some more

years after attaining puberty, the accused and his

family members took her to their house.
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9. Ex.P-1 complaint runs into a detail

narration of the incident leading to the commission

of suicide by the deceased. The complainant is

the elder brother of the deceased Ratnavva.

According to him, whenever Ratnavva came to

their house from her husband’s house, she used to

complain that accused was demanding

Rs.1,00,000/- and 5 tola of gold. Then they used

to advice her and send her back. In that

connection, a panchayat was also held with the

help of elders. Meanwhile, deceased became

pregnant and deceased had come to her mother’s

house for seemantha. Twelve days prior to filing

of this complaint, accused took her back on the

ground that they have not given any dowry or gold

and he will not send to her mother’s house. Then

on 27.01.2009 at about 8.00 a.m. complainant

received a message that his sister is dead. Then

himself and his family members went to the house

of the accused and they found the dead body of
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his sister Ratnavva lying in the pooja room and

there was rope in her neck. On enquiry with the

neibours, they told that they heard some voice in

the night. Therefore, suspecting that the deceased

has been killed by the accused, filed a complaint

stating that on the intervening night of

26.01.2009 and 27.01.2009, his sister has been

murdered.

10. On perusal of the complaint, the ground

made out for causing cruelty to the deceased by

the accused is on the ground of demanding

Rs.1,00,000/- dowry and gold from the parents of

the deceased. Subsequently, the case turned to a

case of suicide by hanging. Therefore, charge

sheet came to be filed for the offence punishable

under Section 306 of IPC apart from other

offences. This would indicate that the family

members of the deceased were very much upset

on account of untimely death of Ratnavva.
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Therefore, in the beginning, the complainant might

have stated that his sister has been murdered by

the accused and his family members. On

17.03.2009, he gave further statement. Even

though after panchayat held by elders, she was

once beaten in front of him only in Bagalkot. The

elders have advised him but he continued the very

same acts. Then while doing seematha, again he

had demanded money and gold. In the cross-

examination, except suggestions, nothing is

elicited. No reasons are assigned or elicited in the

cross-examination as to what would be the

possible cause for the deceased to commit suicide.

Regarding consumption of alcohol and beating the

deceased Ratnavva PW-1 has also stated the

same.

11. The evidence of PW-4 corroborates with

the evidence of PW-1. In the cross-examination,

it is elicited that the accused was in the habit of
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drinking alcohol and sometime he used to beat his

wife. Except suggestion, no other material has

been elicited in the cross-examination.

12. PW-10 is the elder who had conducted

panchayat along with others and had advised the

accused. In spite of their advice, accused used to

beat her. She was taken back when she had come

to her parents house before 15 days from the date

of death of the deceased. Earlier also for want of

gold and money, he had beaten the deceased. In

the cross-examination, again except suggestions

nothing is elicited regarding the harassment and

cruelty caused by the accused to the deceased.

13. PW-13 is the scribe of the complaint.

14. PWs-15 and 16 are the Investigating

Officers.

15. The death of the deceased by hanging is

not disputed. Nothing more is elicited in the
15

evidence so as to hold that there was no fair

investigation. Merely because the neibours of the

accused have not supported the case of the

prosecution, the case of the prosecution cannot be

disbelieved. Having regard to the facts and

circumstances of the case, I find that there was no

other reason other than to commit suicide because

of the harassment caused by the accused. There

is no explanation by the accused with regard to

the reason for the death of his wife. The wife

having died in the house of the accused, the fact

of explaining the cause as well as the reason

under Section 106 of Evidence Act would also

burdened on the accused. Demanding gold and

money at the time of seemantha is not a common

thing in this area. Normally some presents will

also be given by the mother’s side that is why the

learned Sessions Judge rightly acquitted the

accused for the offence punishable under Section 4

of the D.P.Act. Therefore, the evidence of PWs-1
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to 3 though they are members of the family cannot

be disbelieved on the ground that they are the

brothers and mother of the deceased.

16. PWs-1 and 3 have also given evidence

regarding cruelty caused by the accused like

spitting in the lunch plate while taking meals and

asking her to eat it. These are the things which

happen in the four corners of the house. The said

things can only told by the deceased. Therefore,

the evidence of mother and brother of the

deceased that the deceased Ratnavva was telling

them about the cruelty caused to her by her

husband cannot be disbelieved. Even the evidence

of PWs-1 to 3 can be substantially corroborated by

evidence of PWs-4 and 10. The death on account

of suicide by hanging is also proved by medical

evidence on record. The act of the accused

definitely has caused abetment to the deceased to

commit suicide. Taking back the pregnant lady
17

who had come for delivery would amounts to

cruelty. Learned sessions Judge assigned sufficient

reasons as to why the evidence is believable. No

reasons are elicited in the cross-examination and

also any explanation in 313 statement of the

accused with regard to the reason that may be

probable for the deceased to commit suicide.

17. A husband of a pregnant wife should

have looked after her with utmost care and

affection. But the accused had made the life of

the deceased miserable and therefore, she had no

option except to commit suicide. Under the facts

and circumstances of the case and the evidence on

record, I find that the cruelty caused by the

accused amounts to an intentional abetment.

Looking from any angle, I find that the finding of

the trial Court that the accused is found guilty of

the offences alleged does not call for any

interference.

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18. However, having regard to the facts and

circumstances of the case that the deceased was

married the accused at an early age and therefore

there might not have been compatibility between

them. That fact is to be borne in mind. That may

form a ground for reduction of the sentence.

Having regard to the facts and circumstances of

the case, this Court find that the sentence of

imprisonment for a period of six years imposed by

the trial Court is on higher side. Therefore, the

same is liable to be reduced to five years. With

that observation, the point No.1 is answered in the

affirmative and point No.2 in the negative.

19. Hence, I pass the following

ORDER

i) Appeal is allowed in part.

ii) The judgment of conviction passed by

the learned Sessions Judge, Bagalkot,

in S.C. No.126/2009, dated 01.12.2010,

for the offence punishable under
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Section 306 of IPC is affirmed but

sentence is modified to the extent of

imposing the sentence for a period of

six years to five years.

iii) The judgment of conviction and

sentence imposed on the accused for

the offence punishable under Section

498-A of IPC is affirmed.

iv) The period of detention spent by the

accused during trial shall be given set

off.

v) Accused is directed to surrender before

the trial Court on his surrender.

Trial Court shall pass necessary orders.

Bail bonds and surety bonds stand
cancelled.

Send a copy of this judgment to the trial
Court along with records.

Sd/-

JUDGE
Naa

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