H Suresh S/O K Hanumantappa Vs. The State of Karnataka - Court Judgment

R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE31T DAY OF JANUARY, 2020 BEFORE THE HONBLE MR. JUSTICE K. SOMASHEKAR CRIMINAL APPEAL NO.1240 OF2010BETWEEN H. SURESH S/O K HANUMANTAPPA AGED ABOUT40YEARS OCC:BUSINESS OF CEMENT AND RICE R/O NAVULE, THRIMURTHINAGARA SHIMOGA. (BY SRI. B.S. PRASAD AND SRI CHINMAYEE - ADVOCATES) AND THE STATE OF KARNATAKA BY P.S.I. MAHILA POLICE STATION SHIMOGA. (BY SRI. M. DIVAKAR MADDUR - HCGP)... APPELLANT

... RESPONDENT

THIS CRL.A. IS FILED UNDER SECTION3742) OF THE CR.P.C PRAYING TO, SET ASIDE THE CONVICTION AND SENTENCE DATED1012.11.2010 PASSED BY THE P.O. FTC-III, SHIVAMOGGA IN S.C.NO.149/2009- CONVICTING THE APPELLANT / ACCUSED FOR THE OFFENCE P/U/S498A) OF IPC AND ETC.,

THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal is filed by one H. Suresh / Accused No.1 in S.C. No.149/2009, challenging the judgment of conviction and order of sentence dated 10.11.2010, passed by the Presiding Officer, Fast Track Court III, Shivamogga, convicting the accused No.1-appellant herein for offence punishable under Section 498-A IPC. Thereby Accused No.1 was sentenced to undergo simple imprisonment for a period of one year six months and to pay a fine of Rs.5,000/- for the offence punishable under Section 498A IPC and in default, to undergo simple imprisonment for a period of three months. He was however acquitted of the offence under Section 306 read with Section 34 IPC. However, Accused Nos.2 and 3 were totally acquitted for the alleged offences under Sections 498-A, 306 read with Section 34 IPC.

2. The factual matrix of the appeal as per the case put forth by the prosecution, is as follows:-

"

The appellant accused No.1 Suresh married the deceased Manjula about 12 years prior to the incident and both of them were said to be residing at Navile, Shivamogga. It is alleged that after the marriage, appellant was suspecting Manjulas fidelity and used to ill-treat her by abusing and assaulting her. Further, appellant was running a Grocery shop selling rice and also doing business in cement at Hole Bus Stop, Shivamogga where he had employed a woman named Sowmya to assist him in the shop. Deceased Manjula used to frequently visit his shop and observed that appellant was indecently behaving with the said Sowmya. So she had started telling the appellant to discontinue the services of Sowmya in his shop. But however, appellant did not heed her words and was abusing his wife Manjula. When things stood thus, it is stated that a sum of Rs.1,50,000/- went missing from the house of the appellant Accused No.1. Suspecting that Manjula had stolen the said amount of Rs.1,50,000/- and given it away to her parents, he is said to have abused and ill-treated Manjula. Unable to bear the ill- treatment, on 19.10.2007 deceased had sent both her

children to her parents house and committed suicide on 20.10.2007 at about 9.30 p.m. in her matrimonial house at Navile by hanging herself to a wooden bar by using a veil MO-1. Subsequent to the death of the deceased Manjula, the said information was given to her parents. Before her death, she had informed her parents about the ill-treatment meted out to her by the accused. Hence her brother PW-1 lodged a complaint before the respondent police and based upon his complaint at Exhibit P1, the case came to be registered by recording an FIR as per Exhibit P-12 for the offences punishable under Sections 498-A, 306 read with Section 34 IPC. Charge-sheet was laid by the IO against the appellant accused No.1 H. Suresha as well as his parents arraigned as Accused Nos.2 and 3. During investigation, the IO conducted a spot mahazar as per Exhibit P-8 in the presence of panch witnesses and so also held inquest over the dead body as per Exhibit P-11. During inquest, the IO recorded the statements of the relatives of deceased Manjula. In addition to that, the IO secured the PM report as per Exhibit P-9. Statements of witnesses were also recorded

by the IO and he laid the charge-sheet against the accused before the Committal Court. Subsequently, the Committal Court committed the case to the Sessions Court for trial and assigned S.C.No.149/2009. After completion of investigation, charges were framed against the accused for the offences punishable under Sections 498-A, 306 read with Section 34 of IPC, wherein the accused pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution in all examined 18 witnesses as PWs 1 to 18 and got marked documents as at Ex.P.1 to P.9(b) apart from marking the veil as MO-1. After completion of the evidence of the prosecution, accused were examined under Section 313 Cr.P.C. wherein the accused denied all the incriminating circumstances appearing against them. However, the accused did not choose to lead any defence evidence as contemplated under Section 233 Cr.P.C. Subsequently, the Trial Court after hearing the arguments advanced by the prosecution as well as the defence counsel and on an appreciation of the oral and

documentary evidence let in by the prosecution, by its impugned judgment of conviction and order of sentence, acquitted accused Nos.2 and 3, the father-in-law and mother-in-law of the deceased for all the charges levelled against them. Accused No.1 also has been acquitted for the offence punishable under Section 306 of IPC. However, the accused No.1 / appellant herein being the husband of the deceased Manjula has been convicted for the offence punishable under Section 498-A IPC and has been imposed sentence as stated supra. Being aggrieved by the said judgment dated 10.11.2010 in S.C.No.149/2009, the present appeal has been preferred by accused No.1. The State has not preferred any appeal against the acquittal judgment in respect of Accused Nos.2 and 3 for the offences under Section 498-A and Section 306 IPC read with Section 34 IPC.

3. Heard Shri B.S. Prasad, learned counsel for the appellant - accused and Shri Diwakar Maddur, learned Government Pleader for the State and perused the impugned judgment as well as the material on record.

4. The learned counsel Shri B.S. Prasad for the appellant has taken me through the evidence of PW-1 / Manjunatha, the brother of the deceased Manjula who was by avocation as a bus agent in Chennagiri. He had stated that the deceased and accused No.1 were married 12 years prior to the incident and both leading a happy marital life for a period of two to three years after their marriage. Thereafter, some disputes emerged between Manjula and her in-laws as well as her husband with regard to the family affairs, which was communicated to him by Manjula, he being her brother. It was also learnt that accused No.1 Suresha who was running grocery shop selling rice apart from doing cement business had employed one Sowmya in his shop to look after the accounts but however, Manjula had complained her brother PW-1 that her husband was misbehaving with the said Sowmya and that she had noticed the same on several occasions when she visited the shop. Hence, Manjula was very much dissatisfied with the said girl Sowmya working in her husbands shop and she had also

asked her husband to terminate her services. But Accused No.1 Suresh had asked Manjula to go out of the house but that girl Sowmya could not be terminated. Even according to PW-1, Accused No.1 - Suresh had made it clear that Sowmya was employed for the purpose of looking after the accounts in his business. But however, Manjula had been very skeptical about it and consistently telling accused No.1 to terminate Sowmya. Hence, learned counsel contends that Manjula had imagined herself that there was some undue closeness between accused No.1 and Sowmya, and as a result had committed suicide, which was of her own accord and not due to anybodys instigation. Furthermore, PW-1 has not at all alleged about any particular incident as regards harassment meted out by the appellant to the deceased which had instigated her to commit suicide. In fact in his cross-examination he has deposed that he did not know as to why accused was ill-treating his sister. The learned counsel further points out to the evidence of PW-3 / Sumana who is said to be the 15 year old daughter of Accused No.1 and the deceased Manjula.

She has stated that her parents and herself with her brother were leading a happy life and she did not know anything about any harassment meted out by her father to her mother. The said PW-3 has not supported the case of the prosecution and her evidence runs contrary to the contents of Exhibit P1 complaint and further contradictory to the evidence of PW-1 / Manjunath and so also the evidence of PW-5 / Raghu and PW-8 / Umesh and PW-9 / Ramesh and PW-10 / Umashankar. PW-3 had specifically stated in her evidence that she did not know for what reason her mother Manjula committed suicide. Hence, PW-3 has not at all supported the case of the prosecution and she did not withstand her statement. Hence, this witness has been treated hostile. Moreover, though several witnesses have been examined to prove the guilt of the accused, there is no corroboration or consistency in the evidence of all the witnesses to conclusively establish the guilt of the accused as regards the offence under Section 498-A IPC. In order to prove that the accused has committed an offence under Section 498-A IPC, the ingredients of the offence, namely :

physical as well as mental harassment meted out to the deceased must be proved by the prosecution by producing cogent and consistent evidence in that regard. But however, the learned counsel contends that the offence alleged has not been proved by the prosecution beyond all reasonable doubt. Hence, he contends that the Trial Court has misdirected and also misinterpreted the evidence of the witnesses examined in support of the prosecution. Though the witnesses examined have stated that accused no.1 had extended physical as well as mental harassment to the deceased Manjula, the Trial Court has failed to take note of the fact that all of them being the brothers-in law of the deceased Manjula, were interested witnesses. Hence, the learned counsel contends that the conviction is based on the testimony of interested witnesses to the prosecution and hence the Trial Court has committed an error in not examining their evidence with greater care and caution. It is the further contention of the learned counsel that PW-4, mother of the deceased has admitted in her :

cross-examination that she did not know whether accused instigated her to commit suicide or her daughter herself died. She being the mother of the deceased, has not stated anything particularly about the ill-treatment meted out by the accused to her daughter. The learned counsel contends that this evidence also has been lost sight of by the Trial Court while convicting the accused. Further, the Trial Court committed an error in relying on interested testimony of witnesses PWs 1, 4, 5, 7, 8, 9, 10, 11 and 12 when their evidence is not corroborated by independent evidence and suffers from material omissions and legal infirmities. Further the Trial Court also committed an error in relying on the evidence of witnesses PWs 1, 4, 9, 11 and 12, they not being cogent and reliable. Further, it is contended that when the prosecution has failed to prove that the deceased was treated cruelly by the appellant by adducing cogent and reliable evidence, the Trial Court has committed a serious error in convicting him for the offence under Section 498- A IPC. :

In view of these inconsistencies and contradictions, learned counsel contends that benefit of doubt has to be extended to the appellant first accused. Hence, he pleads that the appeal be allowed and the impugned judgment of conviction and sentence be set aside and appellant - accused be acquitted for the offences levelled against him.

5. On the other hand, Shri M. Diwakar Maddur, learned Government Pleader for the State supports the impugned judgment of conviction and judgment rendered by the Trial Court and contends that the harassment meted out to the deceased Manjula by her husband appellant herein was inside the four corners of the wall and it cannot be said that the accused had not ill-treated her physically and mentally. He contends that minor inconsistencies in the evidence of the witnesses cannot be fatal to the case of the prosecution in order to acquit the accused. Learned HCGP contends that almost all the witnesses have stated about the closeness of accused No.1 with one Sowmya who was employed in his shop and also :

about his refusal to discontinue her from services. Therefore, the fact of accused no.1 having ill-treated Manjula on that pretext, cannot be ruled out. Hence, he submits that the Trial Court, on appreciation of the evidence on record in a proper perspective, has rightly convicted the accused for the offences alleged against him and hence, he prays for dismissal of the appeal.

6. On a careful consideration of the contentions advanced by learned counsel for the appellant - accused and learned Government Pleader for the State and on an evaluation of the material on record, it is seen that accused No.1 married the deceased Manjula 12 years prior to the incident and they had a daughter and a son from their wedlock. Further, Accused No.1 was owning a grocery shop selling rice along with doing cement business and deceased Manjula was also looking after his shop. Accused No.1 had employed one Sowmya to take care of the accounts. But however, Manjula was very skeptical about her husband since he was moving very close with Sowmya. Though Manjula had demanded him to remove :

her from the shop, he refused curtly saying that removing her would hamper his business. Hence, Manjula was very much dissatisfied and unhappy. Moreover, a sum of Rs.1,50,000/- had gone missing from the house of the accused, for which also he had been blaming Manjula and was doubtful that she might have taken that money and given it to her parents. On the said pretext, it is stated that accused was harassing Manjula physically and mentally. Hence, the complaint is that, Manjula being dejected for the above reasons, had committed suicide by hanging due to the harassment meted out by the accused. But however, it is seen that the evidence of the witnesses examined in support of the prosecution do not conclusively prove the harassment meted out to the deceased Manjula leading her to commit suicide. The evidence of her own daughter PW-3 / Sumana, aged 15 years is to the effect that she and her brother along with their parents had been leading a happy life prior to her mothers suicide. She being fairly old enough though not a major, did not know anything about the harassment meted out by her father to her mother. If really there was :

any harassment meted out to her mother as alleged, PW-3 Sumana would have been aware of it and would have uttered something of that sort in her evidence. The same is not forthcoming. Further she did not know for what reason her mother committed suicide. Hence, the said PW-3 has not supported the case of the prosecution and her evidence runs contrary to the contents of Exhibit P1 complaint and further contradictory to the evidence of PW-1 / Manjunath and so also the evidence of PW-5 / Raghu and PW-8 / Umesh and PW-9 / Ramesh and PW- 10 / Umashankar. Though she has been treated hostile, this evidence cannot be discarded in view of the fact that though several witnesses have been examined to prove the guilt of the accused, there is no corroboration or consistency in the evidence of all the witnesses to conclusively establish the guilt of the accused as regards the offence under Section 498-A IPC. Further it is also to be taken note of that though the witnesses examined have stated that accused no.1 had extended physical as well as mental harassment to the deceased Manjula, all those witnesses who have :

supported the case of the prosecution were interested witnesses who were related to Manjula. Further, there are no specific allegations against accused No.1 as regards the nature of ill-treatment or harassment meted out to her except stating that Manjula was dissatisfied with her husband misbehaving with one Sowmya whom he had engaged in his shop. The circumstance of PW-4, mother of the deceased admitting in her cross-examination that she did not know whether accused instigated Manjula to commit suicide or that her daughter herself committed suicide, also weakens the case of the prosecution. Further, the testimony of witnesses PWs 1, 4, 5, 7, 8, 9, 10, 11 and 12 not being corroborated by independent evidence, suffers from material omissions and legal infirmities. Further, the evidence of witnesses PWs 1, 4, 9, 11 and 12, not being cogent and reliable, could not have been relied upon by the Trial Court. Further, the prosecution has failed to prove that the appellant had ill- treated Manjula by adducing cogent and reliable evidence and hence the Trial Court has committed a serious error in convicting him for the offence under Section 498-A IPC. :

7. Hence, on a re-appreciation of the entire material on record, this Court is of the considered view that the trial Court has committed an error in appreciating the evidence on record in a proper perspective and the learned Judge of the Trial Court was not justified in convicting the accused for the offences alleged against him since the guilt of the accused under Section 498-A IPC has not been proved by the prosecution by producing cogent, consistent, corroborative, positive and acceptable evidence. Hence, I find that the impugned judgment certainly requires interference by this court. Accordingly, I proceed to pass the following: ORDER The appeal is allowed. The judgment of conviction and order of sentence dated 10.11.2010 passed by the Presiding Officer, Fast Track Court-III, Shivamogga in S.C.No.149/2009, convicting accused No.1 - appellant herein for the offence punishable under Section 498-A IPC is hereby set aside. Consequently, the appellant is acquitted of the offence punishable under Section 498-A :

IPC. If the appellant has deposited any fine amount, the same shall be refunded to him, on proper identification. The bail bond if any, executed by the appellant shall stand cancelled. KS JUDGE Sd/-