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