IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2018
BEFORE
THE HON’BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1130/2010
BETWEEN:
Manjunatha @ Manja
S/o Andanaiah,
Aged about 36 years,
R/o D.K. Koppalu village,
K.R. Nagar Taluk,
Mysuru District. …Appellant
(By Sri. K.A. Chandrashekara, Advocate)
AND:
The State of Karnataka
By the K.R. Nagar Rural
Police Station,
Mysuru District. … Respondent
(By Sri. Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C., praying to set aside the order dated 08-
09/09/2010 passed by the IV Additional District and
Sessions Judge, Mysuru in S.C. No.155/2009
convicting the appellant/accused for the offences p/u/s
498A and 306 of IPC.
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This Criminal Appeal coming on for Final Hearing,
this day, the Court delivered the following:
JUDGMENT
The present appeal has been preferred by the
appellant/accused being aggrieved by the judgment of
conviction and order of sentence passed by IV
Additional District and Sessions Judge, Mysuru in S.C.
No.155/2009 dated 08.09.2010.
2. The genesis of the case of the prosecution is
that one Mariyaiay @ Late Bettaiah filed the complaint
as per Ex.P3 alleging that his second daughter-
Kamalakshi was given in marriage to the accused
during 1996 and at that time of marriage, he has also
given some gold articles. He further stated that after
one year, the accused, the brother of accused, his
sisters and his parents started ill-treatment. After
snatching all the gold articles, they started demanding
additional amount from her parents. He also stated
that he pacified the things through one Siddaiah and
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when his daughter told that they were ill-treating again,
he advised the accused and two times he got prepared
the gold articles and gave to his daughter. He further
stated that his son-in-law is addicted to bad vices and
he was not in a position to heed and he used to ill-treat
and harass her mentally and physically. He has also
stated that his daughter was having two children and as
such, she used to tolerate. On 07.03.2009 at about
8:30 p.m., he received a phone call about the death of
his daughter. When he went to the said place, there he
noticed that his daughter had been murdered and
thereafter, by pouring the kerosene they have burnt the
body and the accused persons were absconding. On the
basis of the said complaint, a case was registered in
Crime No.59/2009 for the offences punishable under
Sections 498A, 302, 201 read with 34 of IPC and also
Sections 3 and 4 of Dowry Prohibition Act.
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3. On the basis of the complaint, the
Investigating Officer investigated the case and thereafter
laid the chargesheet against accused No.1 alone under
Section 498A and 306 of IPC. After following the
procedure, the committal Court committed the case to
the Sessions Court. Sessions Court after committal,
took cognizance and after hearing the learned Public
Prosecutor and learned counsel for the accused, charge
was framed. Accused denied the charges leveled against
him and he claims to be tried. In order to prove the
case of the prosecution, prosecution got examined
PWs.1 to 13 and got marked Exs.P1 to P9 and also got
marked Material objects MO’s 1 to 7. Thereafter, the
statement of the accused came to be recorded under
Section 313 of Cr.P.C. Accused denied the said
incriminating material against him and he has not lead
any defense evidence.
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4. After hearing both the sides, the impugned
judgment of conviction and order of sentence came to be
passed. Being aggrieved by the said judgment, the
appellant/accused is before this Court.
5. The main grounds urged by the learned
counsel Sri. K. A. Chandrashekara are that the alleged
incident has taken place on 07.03.2009 at about 4.30
p.m. but the complaint-Ex.P3 came to be filed on
08.03.2009 at about 5.00 a.m. There is a delay of more
than 12 hours in filing the complaint. As per the
complaint, the police were already there at the spot. He
further contended that though there is no evidence
produced by the prosecution to show that the accused
ill-treated and harassed the deceased, the trial Court
has wrongly convicted the accused under Section 498A
of IPC. He further submitted that there is no nexus
between the act of the accused and the committal of
suicide by the deceased. Under such circumstances,
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the trial Court ought not have convicted the accused
under Section 306 of IPC. He further submitted that
the deceased, accused, his parents and brother were
living together. If really there was ill-treatment and
harassment caused to the deceased, then under such
circumstances, definitely, two children who were
residing with the deceased, definitely would have stated
something before the Investigating Officer but those two
children have not been cited as witnesses in the
chargesheet.
6. He further submitted that the neighbors
have completely turned hostile and as there was no
evidence to show that the appellant/accused abetted
the deceased to commit suicide, the trial Court has
wrongly convicted the accused for the said offences. On
these grounds, he prays for allowing the appeal by
setting aside the impugned judgment of conviction and
order of sentence.
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7. Per contra, the learned Additional Special
Public Prosecutor Sri. Vijayakumar Majage, vehemently
argued by drawing my attention to the evidence of PW.2
to the effect that PWs.2, 3, 4 and 12 have categorically
deposed regarding the ill-treatment and harassment
caused by the accused persons to the deceased. Which
has driven her to commit suicide. He further submitted
that though the accused has taken up the defense that
the deceased was having stomach ache, as a result of
which, she herself poured the kerosene and lit fire. In
order to substantiate the said fact, no material has been
produced before the Court. Under such circumstances,
the trial Court has rightly appreciated the evidence and
has come to the right conclusion and convicted the
accused. The appellant/accused has not made out any
good grounds so as to interfere with the order of the
trial Court. The order of the trial Court deserves to be
confirmed by dismissing the appeal.
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8. I have gone through the evidence of the
prosecution witnesses and the grounds of appeal made
in the appeal memo and the submissions made by both
the learned counsel appearing for the parties. It is the
case of the prosecution that the accused used to ill-treat
and harass the deceased and subjected her to cruelty
both mentally and physically. In order to substantiate
the said fact, the prosecution has got examined the
father of the deceased as PW.2. In his evidence, he has
deposed that after marriage, the accused person used to
assault, ill-treat and harass his daughter and the same
was informed to him. Through one Siddaiah has
advised the accused, thereafter also he continued the
same ill-treatment and harassment. This evidence of
PW.2 is corroborated during the course of cross-
examination at paper book page No.36 wherein in the
last paragraph, it has been elicited that family members
of the accused used to assault and they told to advise
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the accused. That itself clearly goes to show that there
used to be a ill-treatment and harassment by the
accused to the deceased and even on perusal of the
evidence of PW.3, the brother of the deceased and
PW.12-the mother of the deceased have also
categorically deposed with regard to the ill-treatment
and harassment of the deceased by the accused.
9. On perusal of the evidence of prosecution, it
clearly goes to show that the accused used to ill-treat
and harass the deceased even by consuming alcohol. It
is the contention of the learned counsel for the
appellant/accused that the deceased has got two
siblings and they were residing together. In order to
prove the case of the prosecution the fact that the
accused used to ill-treat and harass the deceased, they
have not been cited as witnesses in the chargesheet as
well as they have not been examined before the Court.
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10. As could be seen from the evidence of
PW.11-the Police Inspector B.P. Dinesh Kumar, during
the course of his cross-examination, it has been elicited
that when he tried to record the statement of the
children of the deceased and other witnesses, they did
not come forward to give the statement. Though he has
made all the efforts, if they have not come forward to
give statement in that their statement was not recorded,
therefore, they have not been cited as witnesses. By
going through the said evidence, it shows that there is
no infirmity on the part of the Investigating Agency to
take an adverse inference as against prosecution.
11. As could be seen from the records, though
the Investigating Agency examined the neighbors before
the Court as PWs.5 to 8, they have not supported the
case of the prosecution. When the evidence of PWs.2
and 12 is consistent and also corroborates during the
course of cross-examination, under such
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circumstances, the contention of the learned counsel for
the appellant/accused that the prosecution has not
proved the guilt of accused under Section 498A of IPC
does not hold any water and it is also not having any
force. As such, the same is hereby rejected.
12. The second contention of the learned
counsel for the appellant/accused is that there is no
proximity between the accused and the deceased
committing suicide. In that light, he submitted that the
Court below, without considering the said fact, has
wrongly come to the conclusion and has convicted the
accused.
13. It is well settled principles of law that to
attract the ingredient of abetment, intention of the
accused to aid or instigate or abet the deceased to
commit suicide is necessary. It also requires an active
act or direct act which lead the deceased to commit
suicide seeing no option and this act must have been
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intended to push the deceased in such a position that
he/she committed suicide. This proposition of law has
also been laid down by the Hon’ble Apex Court in the
case of M. Mohan Vs. State Represented by the
Deputy Superintendent of Police reported in AIR
2011 SC 1238 as under:
“45. Abetment involves a mental process
of instigating a person or intentionally aiding
a person in doing of a thing. Without a
positive act on the part of the accused to
instigate or aid in committing suicide,
conviction cannot be sustained.
46. The intention of the Legislature and
the ratio of the cases decided by this court
are clear that in order to convict a person
under section 306, IPC there has to be a
clear mens rea to commit the offence. It also
requires an active act or direct act which led
the deceased to commit suicide seeing no
option and this act must have been intended
to push the deceased into such a position
that he/she committed suicide.”
14. As could be seen from the above decision,
Hon’ble Apex Court has clarified that in order to convict
the person under Section 306 of IPC, there has to be a
clear mens rea to commit the alleged act. It also
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requires an active act or direct act, which lead the
deceased to commit suicide seeing no option and this
act must have been intended to push the deceased into
such a position that he/she committed suicide.
15. With the above proposition of law, if we
analyse the evidence which has been produced before
the Court below, it is seen that though the prosecution
has got examined the parents of the deceased as PWs.2
and 12, they are not the witnesses who were present at
the time of alleged incident. Who were present soon
before the death of the deceased-Kamalakshi have
specifically deposed regarding the active act or direct act
of the accused to push the deceased into such a
position that she should commit suicide.
16. Even on careful perusal of the evidence,
there is no evidence produced by the prosecution to
show that soon before the death, the deceased has also
been ill-treated and harassed both mentally and
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physically so as to drive her to commit suicide. In the
absence of any such finding given by the Court below
the reason given by the trial Court that the prosecution
has proved the guilt of the accused beyond all
reasonable doubt under Section 306 of IPC is not
sustainable in law and the same deserves to be set
aside.
17. Keeping in view the above said facts and
circumstances of the case, I am of the considered
opinion that after careful and conscious attention to the
judgment and award of the trial Court and factual
matrix, the trial Court has not kept in view the above
said proposition of law and facts, has wrongly convicted
the accused under Section 306 of IPC and the same
deserves to be interfered with by this Court.
18. In my opinion, the appellant/accused has
made out a case so as to set aside the order passed
under Section 306 of IPC. In the light of the discussion
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held by me above, appeal is allowed-in-part and the
judgment of conviction and order of sentence passed by
the trial Court in S.C. No.155/2009 dated 08.09.2010
in respect of the offence under Section 306 of is set
aside by holding that the prosecution has failed to prove
the offence under Section 306 of IPC. In so far as the
offence under Section 498A of IPC is concerned, the
same is confirmed.
19. After hearing both sides regarding the
sentence under Section 498A of IPC, the learned
counsel for the appellant/accused submitted that the
trial Court has convicted the accused for the offence
under Section 498A of IPC for a period of two years and
to pay a fine of Rs.1,000/-. He further submitted that
accused was in jail for a period of one year nine months,
the same may be given set off by adjusting the
imprisonment which he has already undergone.
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20. Taking into consideration the submissions of
both the sides, if the sentence which has been imposed
is modified to the period which appellant/accused has
already undergone, then, it is going to meet the ends of
justice. In that light appellant/accused is convicted for
the offence under Section 498A of IPC and sentenced to
undergo simple imprisonment for a period which he has
already undergone as a under trial prisoner and to pay
a fine of Rs.1,000/- indefault to under go simple
imprisonment for six months.
Sd/-
JUDGE
VBS