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Mr.Cheluva @ Selvam vs State By K R Puram Police on 21 February, 2014

Karnataka High Court Mr.Cheluva @ Selvam vs State By K R Puram Police on 21 February, 2014Author: N.Ananda

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 21ST DAY OF FEBRUARY 2014 BEFORE

THE HON’BLE MR.JUSTICE N. ANANDA

CRIMINAL APPEAL No.982/2009

BETWEEN:

MR.CHELUVA @ SELVAM

S/O LATE MANKYAPPA, 26 YEARS

RAJIVNAGAR HUT

VENKATESHWARA CINEMA TALKIES ROAD

LINGAYATH GRAVE YARD

DEVASANDRA, BANGALORE. … APPELLANT (BY SRI MOHD. USMAN SHAIKH, ADV.)

AND:

STATE BY K.R.PURAM POLICE

BANGALORE

REP. BY LEARNED PUBLIC PROSECUTOR

BANGALORE. … RESPONDENT (BY SRI B VISWESWARAIAH, HCGP)

THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 19.11.2009, PASSED IN S.C.NO.17/2006, ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-V AT BANGALORE CITY, CONVICTING APPELLANT-ACCUSED FOR AN OFFENCE PUNISHABLE UNDER SECTION 498A IPC & ETC. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: 2

JUDGMENT

The appellant (hereinafter referred as ‘accused’) was tried for offences punishable under sections 498A & 302 IPC. The learned trial Judge has acquitted accused of an offence punishable under section 302 IPC and convicted him for an offence punishable under section 498A IPC and sentenced him to undergo simple imprisonment for two years and pay fine of Rs.2,000/-, in default to undergo simple imprisonment for six months. Therefore, accused is before this court.

2. I have heard Sri Mohd.Usman Shaikh, learned counsel for accused and Sri B.Visweswaraiah, learned HCGP for State.

3. The State has not filed an appeal against judgment of acquittal of accused of an offence punishable under section 302 IPC. Therefore, the following points would arise for determination:-

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(1) Whether prosecution has proved that after marriage of deceased Chandrakala with accused, he was subjecting her to cruelty, coercing her to meet unlawful demand for scooter and he was also

suspecting fidelity of deceased, he used to harass and ill-treat her and proclaimed that deceased was a woman of lose

character, thereby committed an offence punishable under section 498A IPC?

(2) Whether the learned trial Judge has properly appreciated evidence on record? (3) To what order?”

4. As already stated, judgment of acquittal of accused of an offence punishable under section 302 IPC has attained finality. Therefore, it is not necessary for me to refer to evidence adduced by prosecution to prove an offence punishable under section 302 IPC.

5. It is not in dispute and cannot be disputed that accused and deceased Chandrakala had fallen in love and 4

their marriage was performed in the year 1998. PW1-Indrani is the mother of deceased. PW2-Ramesh Kumar is the elder brother of deceased. PW3-Balamma is the younger sister of deceased. PW4-Lakshmamma, PW5-Vijayamma, PW6- Ramanna and PW7-Rakesh are the neighbours of PW1 and they have not supported the case of prosecution and they have been treated as hostile witnesses. Therefore, proof of charge framed against accused rests upon the evidence of the mother, elder brother and younger sister of deceased.

6. PW1-Indrani has deposed; after marriage, accused was demanding deceased to get money from her mother (PW1); accused was also demanding deceased to get a scooter; they had provided a scooter to accused; accused sold scooter to PW1 and spent money for drinking and gambling; accused again demanded deceased to get scooter.

7. The evidence of PW1 that she had provided a scooter to accused; accused sold scooter to PW1 and spent money for drinking and gambling and accused again demanded 5

deceased to get scooter does not inspire confidence. This evidence of PW1 is found to be an omission, amounting to material contradiction. PW1 has deposed; accused was addicted to drinks and he was gambling. PW1 was cross- examined about the activities of accused, for which PW1 has pleaded her ignorance.

8. PW1 is a woman. PW1 cannot be expected to give evidence relating to details of place at which accused was taking alcohol. PW1 has admitted that deceased had given birth to two children by her marriage with accused. During cross-examination, PW1 has admitted that accused was suspecting deceased whenever she used to speak with others. PW1 has admitted that one Veeraswamy was selling lemons in K.R.Puram sandy and deceased was also selling lemons in same sandy. PW1 has denied suggestion that deceased had gone along with Veeraswamy to purchase lemons from Andhra Pradesh. PW1 has denied suggestion that accused had told deceased not to go with Veeraswamy to purchase lemons from Kudur and deceased did not listen 6

to words of accused. During cross-examination of PW1, from the suggestions put to her, charge against accused that he was suspecting fidelity of deceased has been fortified.

9. PW2-Ramesh Kumar is the elder brother of deceased. During cross-examination, it has been suggested to PW2 that about 4 or 5 years prior to date of incident, accused had assaulted deceased in a sandy and forcibly took deceased to his house. PW2 has admitted this suggestion. PW2 has denied suggestion that deceased had illicit intimacy with Veeraswamy and accused had opposed the same. PW2 has denied suggestion that accused was not willing to leave his wife (deceased) in the house of PW1, therefore, accused had assaulted deceased in sandy and taken her to his house.

10. PW3-Balamma is the younger sister of deceased. During cross-examination, it has been suggested to PW3 that accused informed PW3 that he was suspecting fidelity of deceased. It has been suggested to PW3 that accused was quarrelling with deceased, alleging that deceased had illicit 7

intimacy with Veeraswamy. It has been suggested to PW3 that before the date of incident, accused had come to house of PW1 and told PW1 that deceased had illicit intimacy with Veeraswamy, therefore deceased was not willing to go and stay with accused; accused also informed the matter to neighbours of PW1.

11. Thus, from the evidence of the mother, elder brother and younger sister of deceased, we find that accused had assaulted deceased in a sandy (within public vision) and dragged her to his house. The accused was suspecting fidelity of deceased. The accused had asserted that deceased had illicit intimacy with Veeraswamy, therefore she was not willing to stay with him. Though evidence of PW1 to PW3 regarding unlawful demand for money and a scooter made by accused has not been proved, the evidence of PW1 to PW3 is sufficient to hold that accused was subjecting deceased to cruelty and he was suspecting her character and he had strongly believed that deceased had illicit intimacy with one Veeraswamy. In my considered opinion, the conduct of 8

accused in suspecting fidelity of deceased and frequently assaulting her and openly proclaiming that deceased had illicit intimacy with Veeraswamy would constitute ‘cruelty’ within the definition of section 498A IPC. Therefore, learned trial Judge was justified in conviction accused for an offence punishable under section 498A IPC.

12. The learned counsel for accused would submit that accused has two children to care for, therefore a lenient view may be taken in the matter of sentence.

13. The learned HCGP would oppose the same.

14. PW3 is the younger sister of deceased. PW3 has admitted that accused has two children and they are in the custody of PW1 and PW3. PW3 has deposed that accused is free to take his children. The marriage of accused and deceased had taken place about 8 years prior to 17.01.2005.

15. Having regard to peculiar facts and circumstances of the case, I deem it proper to sentence the accused to 9

undergo simple imprisonment for a period of one year and six months and pay fine of Rs.10,000/-, in default to undergo simple imprisonment for six months.

16. In the result, I pass the following:- ORDER

The appeal is accepted in part. The impugned judgment is modified. The conviction of accused for an offence punishable under section 498A IPC is confirmed, however the sentence is modified. The accused is sentenced to undergo simple imprisonment for a period of one year and six months and pay fine of Rs.10,000/-, in default to undergo simple imprisonment for six months for an offence punishable under section 498A IPC. The period of detention undergone by accused during trial and post-conviction stage is given set off as provided under section 498A IPC. Sd/-

JUDGE

SNN

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