Karnataka High Court
Shekhara vs The State Of Karnataka on 16 August, 2010
Author: N.Ananda
Bench: N.Ananda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16"' DAY OF AUGUST 2010
BEFORE
THE HONBLE IVIRJUSTICE N. ANAND_;x~~-- I "
CRIMINAL APPEAL No.1786/20.03:'_' ' G.
C/W CRIMINAL APPEAL,é\Io.jjsiv'/2OQ3._.: '-
CRL.A.No.1786/2003
_B__El_W_E_E_1¥_I
Sri.Shekhara,
8/ 0 Ningappa,
Aged about 33 Years,
R/0 Mikundur, __
Kattaya Hoblig ' :_ » A
Hassan Dis_7tI*iCf_. " . ...Appe11ant
{By Sri}?._ K."17?':'c)r1raIe:11§ .
AND:
w Th.::"s.tat_£: of Karfiataka'.
G' Rep'1'esé:i'ted*by its State
' Pubiic 'Prfisécfitsr,
AdV0éavte"'Genérai's Office,
High GCoIirfiBuii1dings,
Ba11gaic§re 34560 001. ...RespoI1dent
K ' " * V' [By Sfififijaykumar Maj age. HCGP)
This appeal is filed under section 374 Cr.P.C against the
judgment dated 20.11.2003 passed by the Presiding Officer, Fast
Track Court--1, Hassan in S.C.No.-48/1998 convicting the
appellant/ accused No.3 for the offences punishable': under
sections 448. 354, 324 and 306 r/W 34 of IPC and senteiming him
to undergo R1. for 3 months and to pay a fine of Rs.500,': 'l".§}~., cf
the payment of fine to undergo S.I. for one monthfor a'11.';offen@::_e'
punishable under section 448 r/w 34 of IP(}.__ ar1d,t"urti1er
sentencing him to undergo R.I. for 3 months a_nd'to_'pay'~a fine not" i.
Rs.500/ -- I.D.. of the payment of fine to undergo_yS.I_,..fo1"-~ one month
for the offence punishable under section:.32-4. rlw' 34=.ofr.1E%C and
further sentencing him to undergo R.Iigfor._6"months' and tc~_'pgy»
fine of Rs.500/-- I.D., of the payment of tine to undergo 8.1. for one
month for the offence punishable under section 354 r/_W=--3.4 of IPC'- '
and further sentencing him to undergo R.1. for 5'*years7;and to pay
a fine of Rs.1,000/-- 1.1)., of the paynient..of fine to undergo S.I. for
3 months for the offence "punishable u'ndér..section"306 r/w 34 of
IPC. All the substantive sent-ences. a:eK_h'ereby ordered to run
concurrently. " --.
CRL.A.No.17£§Z:/2003"
as
1. Shiyalingiif5'p&:.. " '_
S/o"Ma11e Sorna"p.pa,._. _ J
Aged about 39 Y'e.a'rs."=-- 0
2. $ri'.Ma1li1§a"rj,L_ina,
{S/Q ._i\/ladle Sornappa,
3' Ag€:CEaVA&b0L1zt32 Years.
3 i«iri3ah;a:e rfo"'Madihalli,
Arkalgud Taluk,
'~Has__san lfiistrict. .. Appellants
3 H ' = .IBy Sri;'§?...K.Ponnappa, Advocate)
AND:
The State of Karnataka,
Represented by its State
Public Prosecutor,
Advocate General's Office,
High Court Buildings, 0' -- _ c
Bangalore mm 560 001. ~.Res'fpon*dent _ "
(By Sri.Vijaykumar Majage, I-IC_(}P):=,_v
This appeal is filed under-.section.v3T£i Cr.,Pt<;A
judgment dated 20.11.2003 passed"~~by the Presigding Fast "
Track Cour-t--I, I-Iassan in S.C..No.48/1998 " 'convicting the
appellant/ accused No.1 and 2 for..the._oi'fences punishable under
sections 448, 354, 3247an.r;1 306 1'/W',34 of IPC and sentencing
them to undergo RI. for"3 ~rnonths{_'and"' pa}; a fine of RS500/--
each 1.1)., of the payment of fine t'o'und_ergc _S,1.ffor one month for
an ofience punishable 1,mde.r"vsecti0n 4218"r/W 34 of IPC and
further sentencing him to undVe«rgo'VR~.i'_.'V.for Svmonths and to pay a
fine of Rs.500j_/-- each. LU'... of the payri1ent'*'of fine to undergo S.1.
for one 1'1'1O}T11l']V."1'v1"Q\1.~\/if:Ei1:'";V offe_nce'»punis*hab]e under section 324 r/W
34 of 1pc a.ndf__f1i_rthe"r' seiitericing them to undergo R1. for 6
monthsand to._pay'1a.firie_of_Rs.500[:~each I.D.. of the payment of
fine to unde1*go_VS.I'.:. for 'one month for the offence punishable
under 'section,354""r/'W_3zi_oI'=IPC- and further sentencing them to
undergo .R.i«.. for -5 ye'ars'ar.1d..to..--~pay a fine of Rs.1,000/-- each II).
of the payment of"fine.to..u'ii(;iergo S.I. for 3 months for the offence
punishable 'under s'e,ctionV306 r/W 34 of IPC. All the substantive
sentences are hereby ordered to run concurrently.
These'v..tyvo_appea1s coming on for final hearing this day, the
I v(v3o~urt de1iye1'ed,the foilowing:
J U D G M E N T
Criminal Appeal No. 1786/2003 is filed by vpacc'L1.sed No.3. Criminal Appeal No. 1787/ 2003 is filed 2 against the judgment of conviction: flu S.C.No.48/1998, on the file of Accused 1 to 3 along with accu_sed tried for offences punishable secti'ons'A 324,22 306 & 506 r/w 34.1~Bc. fseés's1t3Vris Judge acquitted accused No.4 for' The learned Sessions Judge: .c 3 of an offence punishable 34 IPC and convicted them ;i;;ee~ sections 448, 354, 324 & 306 1" to 3 were sentenced to undergo impiisonmleiitilfona of five years and pay a fine of V. . Rsi_._.1€§0:)Q/s. peach'; lifidefault to undergo simple imprisonment three months for an offence punishable under 34 IPC. Accused 1 to 3 were sentenced to unde'rgo':. rigorous imprisonment for a period of three months ":3 anldfpay a fine of Rs.500/~ each with default sen offence punishable under section 324 r/W 34 IPC and sentenced to undergo rigorous imprisonment for a of six months and pay a fine of Rs.500/~ each sentence under section 354 r/W 34 IPC and..Se_ntence'df.<_th_eIn_ to undergo rigorous imprisonment months and pay a fine of _Rs.5UI)f/'+t. each..".i,w{ith" def'au'1t-.p sentence. Therefore, accused 1'°to_"3 haveV'filedet};.'ies:e< appeals.
2. Sri Vijaykumar 'Majgage, appearing for State would submit that'"the iinotdfifiled any appeal against the . acquittal]-of' accused No .4.
3. 'prosecution is as fo11ows:--
ifxccused 1_"Jo:.'1:_Shiiza1ingappa, accused No.2- Mallikarjunagarewgdireotdtirothers and sons of one Somappa. No.3~xShe1tara is the friend of accused No.1. is the husband of younger sister of deceased 'Vfe:P_af*vathamma. Deceased Parvathamma was the sisterrof accused 1 8: 2. PW1--BasaVaIaj is the husband of A deceased Parvathamma. PW6--Sumithra is the daughter of N. Jet/w»«»&«~ elder sister of PW1. Accused 1 8: 2 are the residents of Madihalli. Arkalgud Taluk. Accused No.3 is a resident. of Mikundur Village, Kattaya Hobli, Hassan 'l'a1__u'k;* «Q No.4.» is a resident of Sukkhayanna ., Hobli, Periyapatna Taluk, Mysore l)istrjAct.jP1W Bettadalsathenahalli Village.,As_ already stated; is daughter of elder sister of PW1'l"'ItV'dap_pears. was brought up from her childhood..thefho:us'e:. It vapflears. PW6 had lost her mother whenshe PW 12:. the year 1994, PW1 appears old house was used :for and new house was used for agricultural No.1 was staying in the house of PW'1'A.w:hen :PW1 was constructing a new house. .A No;-.1 was helping PW1 in construction of a new ._hcuseL' No.1 was very much interested in marrying PW6--E-3.urnithra. In fact, accused No.1 had informed other H K it vil__lage1"s about his intention to marry PW6. 2
- M»-
It is the case of prosecution that on 14.04.1998 at about 12 in the noon. accused 1 to 4 came to the house of PW1. PW6 was cooking food in the old house. _Dec.ea~sed Parvathamrna was sitting outside the house ' _ combing hair of her children. PW1 was WQ1*kiiag:j*inll'his--Anevirv house, which is situate at a distance-Afofivfewifeet lfronfi house. Accused 1 to 3 spoke*to..__deceased PaI*.cra'tliarnma§. entered the old house. Wanted drinking water. PW6 accused No.3. All of a sudden, accusedl to 3_b.olt-ed door inside. Accused No.1 took oufa pocket. Accused 1 to 3 vNo.1 tried to tie "mangala sutra" to the neckA._fjofllPWB.. VPW6 raised a hue and cry and offered resi'sfance..'-- Oii hearing hue & cry, PW1, deceased Paltfathamma and"""o'ther villagers came there and forcibly broke door. They found PW6 weeping. When enduired PW6 told him accused 1 to 3 used criminal force "against PW6. Accused No.1 attempted to tie "mangala sutra" to her neck. When PW6 offered resistance, accused N ' (JV\"Q,.vc0,\.
No.1 hit her right index finger. PW1 and deceased Parvathamma scolded accused 1 to 3 for such dvisgulising and shameful acts. It is also alleged that accuse'd"N.o..l._::
to outrage modesty of PW6 in the presence villagers, proclaiming iflher modestyinisjj.outraged... would marry her. When deceased"Flarvathgarnnivaff se;plded"'.g accused No.1 for what he I\lo§.lmcursed deceased Paavathamniaf"that_'_Vsh'e: sister.» instead of supporting him had {PW1).
Accused ide'ceasedf_"'~Pa1E§?athamma to die. Thereafter. .--confined in the new house of deceased Parvatharnma, who had become. of indecent and humiliating acts committed. by accused 1 to 4 in her house, left that andavyentllltowards channel situate near the village and juhrnpediinvtooithat channel and committed suicide. The efforts 'made and other Villagers to trace her dead body were futi1e.tT:.h§refore. PW1 & PW6 came to Holenarasipura Town A iPol--ice Station. PW6 lodged a written complant. PW6 was Na ' «.i@»~ examined by PW3~Dr.Krishna M.C. in Holenarasipura General Hospital. On the next day, the dead body of deceased Parvathamma was removed from the channel. Inquest was held. Th dead body was subjected.tc:'__'_p'ostl._ mortem examination. The postmortem eXa:minatio--n'*report _g would reveal that death was due to asgigjhgv "ia of drowning. Accused 1 to 4, who had b'een..configned':i:1 the house of PW1 were handed to jurisdictionaliimpolice. During the night of .1 to éiwere arrested by jurisdictional police. of investigation, charge sheet§~vw*as--suhmitted agairrstv_.__accused 1 to 4 for aforestated offe;:rces3." I
4. The1eame.d"SeVssion's<Judge framed following charges and altered ch.arges:~ . . . . .
_ 'A_.V'1~ :v"vrSThiva1ingappa, S/ o.Ma11e Somappa, Age-d about 29 Years, R/o.1\/Iadihalli, 'j_A:i'*akalgud Taluk.
2' , .2 41\/Iallikarjuna, S / o.Ma11e Somappa, ' Aged about 22 Years, R/o.Madiha11i, Arakaigud Taluk.
W' I ,.__H_R44-¢fir\* 10 (Both A1 and A2 are in Judicial Custody) A.3 Shekhara, S/o.Ningappa, Aged about it V. 23 Years, R/o.Mukundur Village, Kattaya Hobli, I-Iassan Taluk.
A.4 Swamy, S/o.Sannappa,e Aged it" t 39 Years, R/ o.Suk1d1ayana_AKoppyai'u,' ' Hamahalli Hobli, Piriyapatlna' ' ' .. Taluk, Mysore District. ' as follows :-- l by i That on or:"azbout..ithe: of April of 1998, at about 12';{lO.Ncorif.,':roufaccu.sed No.1 to 4, in furtherance... V-your 'intention, committed'««;'nr;use:__ tree-fiass into the house' _ ' Basavaraju, in Bettara. an intention to itomrnit outraging the modesty of axiwoman; and abet suicide and thereby c0mmitted«..an offence punishable under section 448.read:vvith section 34 of Indian Penal Within my cognizance.
A on or about the date, time and A place!' mentioned above, you accused No.1 to 4, inf. furtherance of common intention, used At 'T criminal force and assaulted C.W. 1 Kumsumithra, a woman. intending to o gtrage N hwy", 11 her modesty by you accused No.1 and 2 holding her and you accused No.3 closing her mouth":
with your hands and you accused No.1 forcibly trying to tie Mangatasuthra in he_r§'_:'neck;- -1- and thereby committed an offence _ under section 354 read of In5;iian:Per_g-ii Code and within my cognizance. A
3. That on time mentioned above, you a_ct:c'us_ed__ No..'1* 4,} in furtherance of .VintentionA,A "you voluntarily caused 'Kurn;_Sumithra and by means o1":'you1{1g=.c_cu.t'Svf:d v1'Jo:.'1hbiting her finger ar1d:.therehy"committed an offence 324 read with sVection"3.4. of'AIndia'n.._Pena1. Code and within my cognizance.' 2 'I'hat A"on'"'.the date, time and place "tgmietntionedhh"above; you accused No.1 to 4, in it furtherance of your common intention, u'th:reatened'_1.C.W.1 Kum.SuInithra. with injury to ""therAp*e1fs..on, with intent to cause alarm to said Sumithra and that thereby committed an offence punlshabie under section 506 read with 12 34 of Indian Penal Code and within my cognizance.
5. That on 14.04.1998. in Bettara-'--..
Sathenahalli, Smt. Hemavathi ~ sister of accused No.1 committed suicide by jumpingirito -. :_. it Hemavathi Naia and that you accused lytoilli L" % abet this commission by V-abusing' thereby committed an offence, pujnishable"undei':",.. section 306 read with V3-14__of Indian Pena} Code it and within my cognizance; ._ c _ .
"A L T ER E oy.~c_H_A'--R G 1 ShiVaiingaf)pa,'- '' &.
S/o.MaI1e Sorhappa. ;
about Iiesigjvznt of Madihaili,' V. T' jTa:'_1uk'; V V ' " Mai1ika:ju'11a," ~ .
SA/o.Mai1e "So'n1appa, Aged. about 22 Years, Resident of Madihaiii, zArakalgL1d Taluk;
'(Both accused Nos.1 and 2 are in d V judicial custody) v.3' Shekhara, * 'V " S/o.Ningappa, Aged about 23 Years.
Resident of Mukundur Village, Kattaya Hobli, ;
Hassan Taluk; YU ' £;,,u4i,, .
13 4 Swamy.
S / o.Sannappa, Aged about 39 Years, * .
Resident of Sukkhayana Koppalu, _. "
Harnaha11iHob1i, ' Piriyapatna Taluk, Mysore District.
as follows :-- V _V _ V __
5. That on '»d_1_@~..Q4.19'98: in Sathenahalli, Smt.PaWarharr1ma, of flyou accused No.1, ' by djvldirriping into Hemavathi Naiaafidflrat fa:e'cused Nos. 1 to 4 abetted her and thereb3%_"eo§1;mitred a_ri"'offer1eex'punishable under seetiorl .34 of I.P.C and xssithiri deagnizarrce. ' ' ~-
5. On dbehalfd of"'pros_et--1,r'don, PW1 to PW9 were examined and _documentsVa:v3 to Ex.P.7 were marked. The ccxijrraddrctory in the statement of PW1 recorded L' .trr1der" 161 Cr.P.C., were marked as Ex.D.1 & Ex.D.2. M.O; 1 to iili} were marked.
_6V,L 'Q Z I have heard Sri P.K.Poranappa, learned counsel for d' faccrised 1 to 3 and Sri Vijaykumar Majage, learned HCGP for 14 State. I have been taken through the findings of trial Court with reference to the evidence on record.
7. The following points would arise for determinatiori?"- .. {1} Whether the prosecution has proved*'AthatAon' _' 14.04.1998 at about __s1..'2__in _~the"":3'3joori,.A_"'. accused 1 to 3 shared f and trespassed into_thev'h.ouse of committed an oii"er_:rcep punishabie section 448 r/w 34 W. {2} Whether the' proved in furtherance . such intention accused.-' 1 to ""usec1VV cdriiminal force and V aCc*I,1sed?'§V1\io."'i~tried "mangala sutra" to * the of, ----ar1d thereby committed an '=..offenc'e Iiiullisiiabie under section 354 r/w 32; ,:Pc?.'--
iII1._._furtherance of such common intention, ~a'cc_u}..%ed No.1 bit right index finger of PW6 A thereby committed an offence . "punishable under section 324 r/w 34 EPC?
"{4} Whether the prosecution has proved that accused No.1 by trying to tie "mangala 15 sutra" to the neck of PW6 and she was held by accused 2 & 3 by using Criminal force the house of PW} and whether in the saifie'.."j,:
course of transaction accused 1 to 3 j"
outrage the modesty of PW6 .
No.1 cursing deceased farifathaninia she being sister of accused ,of»:dA supporting accused__No:1 has takgenithejside of her husband [PWKI}_V'and sheshovuiddfidie and thereby instigated xfl1e hdveceased Parvatharnma' to , ..:suicide and deceased suicide by ;juinping into the village Shave committed ____ _,.a'n.__'6ife;;g¢ ,puVnistiapVlgev,:under section 306 :mam?} (5)"wr:e:hé'; theilearned trial Judge has properly" appreciated the evidence on ' E I A . . . . . .. ' the impugned judgment calls for it What order?"
. . interference?
17
9. In order to bring home the guilt of accused, the prosecution has reiied on the evidence of PWI-Basavaizaj, PW6-Sumithra and PW7--Mallesh.
10. It is the case of prosec11tion"that was the victim of aforestated acts cornriiitted accuseld; PW6 is the daughter of eld'er.""sister. of herd childhood, PW6 was br'ought,u'p This fact has not been controire:fted;---El'oiWeirer,"_»th'ere is controversy regarding .. tsrvwhether she was murdered death was natural, which V
11. hi deposed; accused No.1- Shivalingapnalelderdifirotlier of deceased Parvathamrna) had ex_press_ed his Ad-esi_1_fe.to marry PW6 for which PW1 and ' de'ceased~Par'vathamma were not agreeable; PW6 was also n:ot--.iinterested"to marry accused No.1; even then accused Noll telling his relatives that he would marry PW6; on it ., "the._date of occurrence, at about 9 a.rn., accused 1 to 4 came 18 to the house of PW1; at that time, PW6 was cooking and deceased Parvathamma was combing hair of her chiidifen; PW1 was Working in the new house; accused _ asked PW6 to provide some drinking water""to.: in the». meanwhile, accused 1 to 3 boltedgthe~d.oor1,frorn= that time, accused No.3 closed her'.V_Inouthe."1u3i3'(&A accused No.2--Mal1ika1juna held: removed a "mangala sutra" ..V_'f':tv;i'an_ga}a to the neck of PW6; PW6 No.1 bit her right ?i_éceag;;C'1'~Ijfiarvathamma and other viilagers came inside the house;
accused instead of supporting therri to 3) she was supporting PW1 (h€]f'.1'1t1Sbt£13';(Ti)'ai;ld.'VC1dif'c3€d the deceased to go and die .c1"sewheAre§" ..decease'd"vParvathamrna left the house towards 4vdVof_:_jPW1; PW1 went in search of deceased 'PW6 has deposed; before deceased Pawathamma left place of occurrence. accused No.1 tried to 'eoutrage modesty of PW6 in the presence of PW1, deceased N. 19 Parvathamma and other villagers to prevent any one from marrying PW6; after soéie time, PW} returned back and told PW6 that deceased Parvathamma is dead and her dead.-"body was floating in the channel; PW6 was brought hospital; the statement of PW6 was recorded * M on the following day, dead body of Parvathainrnvad "v§?as.lt1'acedv., and removed from the channel;
saree, a blouse and pieces of rnarlged to 6; " d I-'W6 has identified "mangala3us.1:ltra?';"-which"'accused No.1 tried to tie to her neck} 'ii3gWEd3c_ broken latch marked as M.O.7_.*-- _ Iliuring"cross--cxamination, PW6 has reiterated Version given in'«examinatioiflain'-~chiefi PW6 has deposed: accused Nos.1_ to 3 entered old house of PW1; due to bite V' injurj/kg there was bleeding of her right index finger; PW6 had _notc_seen"udecea;_sed Parvathamma running towards her filed; PX§,»§"'was_ to Hoienarasipura General Hospital at 8 dV.,p.m.; has denied suggestion that on the date of "C'occur:5"ence, accused 1 to 4 along with parents of accused A, E _ /.,,9\.--(Lu 20 No.1 had come to the house of PW1 to fix the date of muhurtha of marriage of accused No.1 with PW6. Deceased Parvathamrna and PW1 had refused to give PW6 to accused No.1. PW6 has denied suggestion__pthat' accused: _& it No.1 did not try to tie "rnangala sutrai'::to«.vher -ine.ck-- had not bitten her right index. _finger.A'i°he 'oi finds corroboration from the her.
12. PW1 has expressed his desire to marry 'PW6; I:-'.'~'.,~*~».,rr.5... in marrying accused Nope}, ifeiatiofiship; PW6 was the daughterot of accused No.1 and Pi)ij6 'Was vdsiriiiiljarpdvétoi:relationship of a brother and a sister; the" did not permit such mamiiage; therefore, PW1 and deceased Parvathamma had rejected 'proposal of accused No.1. PW1 has deposed; on occurrence at about 12 in the noon, he was working:in"his new house; PW6 and deceased Parvathamrna W-r;r_e the old house; accused 1 to 4, who were sitting in the °neW'house toid PW1 that they would go to old house to drink 21 water and entered the old house; after some time, PW1 heard hue and cry raised by PW6; PW} and _dec'eased Parvathamma came near old house; the door o§3V_'which*-.was_V" . bolted from inside; PW1 and deceased Parvatharnrna"'tapped4 "
the door violently and requested iacciusedi tiie door; their request was not.»he'_eded;'A.therefc;re'; used force and broke open the PVlf1-- lvfdeceased Parvathamma entered house a1rd_'..t;o"und weeping; accused No.1 was holdingpha there was injury to the "t§'W6;::lPW1 gave two or three blows. dragged accused No.1 outside: 8; were also present inside the house; silent when PW1 enquired PW6;;P'v}\IAEi told accused No.1 embraced her and bit ' "«..h€vrv-.t.f{nge1' when shewlforeibly pushed him; PW1 brought I'?
s--accyusVed_:V1«._qto V.;-=,tVr.'J~ his new house and confined them in new house: meanwhile, wife of PW1 (deceased '~»Parvathar£1ma} slipped away from that place and she jumped channel near that village; Parvathamma committed N 22 vs suicide after seeing indecent and inhuman acts committed by accused 1 to 3; after some time, PWI came neafy the channel and found dead body of his wife floating in water; PWI jumped into channel save the deceased and dead bodywas' dril?ted« flowing water; PW1 requested" A.autho.ritieg., the flow of water into chan'n.el:,tJ:1e V.il<riga.tio_nVx'autho'1'ities'V' stopped the flow of water; thefeahfnterudead body of: deceased was traced and removed'fr_t_jIn'tl'1.,.e channel, .. PW1 has""§l:epos;ed;aev:*hen :'g'a.lata_.,V:took place, several persons i"eladlgatliered'ctherezd"accused No.1 came out and scolded the 'wliy she was alive; on the same day, tlodged'firstyvinfonnation and I\/I.Os. 1 to 3 viz one yel1é'lwvs'aree, one__blue blouse and one red petticoat were ' seized» police; dead body of deceased was traced on the H and it was subjected to postdnortena exainination. 'rm, (3 .ea.LI&.~,~c€vv 24 --
for the marriage of accused No.1 with PW6. PW1 has denied suggestion that on the date of occurrence, the parents-__of accused No. 1 had come to the house of PW1 to _ Inuhurtha of marriage of PW6 and gaccused*'No.:1.. 2. denied suggestion that when the:=._parent_s of I were discussing the date of sin-r--_1__1"'riag'eL.V_o'f acciisved.No.1T;vsiith:'"e. PW6; PW1 had refused to giVe'Vi4d}Wi.7€3 in accused No.1. therefore. deceéléed .1 Vidvéergflmuch Hpained and committed suicide; PW1' that he has concocted a the accused vtosimplicate them. PW'? is PW1. PW'? has deposed:
on the, date when he was passing near the house ofu7'3W1_, Vhesound of noise; PW1 and others forci<b1yi'~opened'--.the door of the house of PW1; PW7 came » jth-e_re;_deeeased Parvathamma was sitting outside the house; 3 to 4 were inside the house; one of the of 'PW6 had been bitten; accused No.1 was holding a 'A"1nariga1a sutra"; accused 1 to 4 were brought out of the "'._house; the villagers gathered; at that time, accused No.1 1\2.4o.c>~-L 25 scolded deceased Parvathamma for supporting her husband {FWD instead of supporting accused 1 to 4; accused No.1 cursed deceased Parvathamma that better she should:id_ie; deceased Parvatharnma became disgusted in through back door of the house; jurnped in't'o='= it died; PW1 ran towards channel found 'dead lboldgf'-eo_f his wife floating on the water an'd'inforIr1ed'the otihersrli» PW6 lodged first inforinationlzvionip the llvday, PW7 handed over deposed that police prepared mahafiar incriminating articles in ~» PW7 has deposed; the house of _&lP§?llf_arlajsleparated by three or four houses:
wheinVPV'+J7 came. near the house of PW1; out of 10 persons, » couldremember the names of Shivamma, Basavarajappa H ~(l,A5W,i),lldliivruiriallesh and deceased Parvathamma. The police visi'ted"-dthellvillage at about 10 a.m. on the foliowing day. 'Whenlhis statement was recorded, PW'? has stated that llaccused No.1 was holding a "manga1a sutra". PW'? has N 26 stated that he does not remember which finger of PWQ was bitten. PW7 has denied suggestion that he has evidence against the accused.
13. The evidence of PW2~Ma11c:sh.N'.',« relates
14. From the evidence offind ;
that on 14.04.1998 at 9.30 PW6 in the General Hospital following injuries:-- H A L b V if V I. Abrasion at finger.
II. V d
111. has injuries were simple in nature and issued would certificate as per Ex.P.2.
- crosssexamination, PW3 has admitted fliatvidinjury No.1 could be caused by any shrub. has a_dmitted suggestion that injuries 2 8: 3 could also by shrubs and admitted that if finger was bitten if there would be teeth marks. ;
. n)'. '/59... £3' 5'.
27
15. The evidence of PW4--Dr.S1nt.Ravika1a N.K.,vre'1ates to post--mortem examination of deceased Parvath.a1nrn:a.e- evidence of PW4 has not been controverted. H
16. The evidence of PW$.7B.S.-Kiiiniarz re1a'te's__ identification of a saree, a .»b1-quse and pieces '_of_V_ba_1§1g1es_dW marked as M.Os.4 to 6 and a There is no controversy abou'i;'..t._1'*'i:ese ~
17. At the re_1evant..tiIn_e;. as Assistant Sub--Inspectori_iinA Tovvéi"i*'o1ice Station and he was the"Sta..tion I-Iaoiise 'Oificer oiiet-hie date of occurrence. The evidence of PW84VPfuttasvvea:riiy_ relates to registration of first inforinatiodnuand investigation of the case. evidencevof PW9--R.C.Lokeshkurnar relates to ' coriipletion of investigation.
' "'cArucia1.-._. "
we find evidence of PW1, W6 & PW7 is X we «_~éL~~Jw 28
20. Before adverting to appreciation of evidence of aforestated witnesses, it is necessary to state that there is nothing in the evidence to indicate that PW1, Pws'~v3;j<«..1_5w7 bore any grudge against the accused. In factgithe ~ had elicited in the evidence of PW6.f:hat accuseidivewas K"
staying in the house of PW1 when new house i.e., two months to the datebof io(:c:u1frence.--.ii' Above all, PW1 was the husban_d:o_f_ d.e»ceased_iE§arv:athamma. PW1 had no grudge 55' 2, who are his brothers~in--1aw._ A ' Accused' of accused No. 1. PW6 was by PW} and deceased hadlost her mother when she was a At 'occurrence, PW6 was aged about 23 years and unniarried. In the circumstances, the evidence . ., ofVPW6'e'thate.her modesty was outraged by accused 1 to 3 and tried to tie "mangala sutra" to her neck inspires ~ confidence. PW6 would not have staked her reputation and dignity to give false evidence against the " accused, she was also conscious about her marital 29 prospects. Therefore, PW6 had no reasons to impiicate the accused.
21. As already stated, PW7--Ma1lesh is a'7n__eighE§o'ulr PW1. There is nothing on record to show that .;P\lV?'._had:'any*¢ reasons to give false evidence against._theV_accused;* . 2 ll
22. PW6--Sumithra has deposed; Q "the; accused entered the house of _accused"N'oll»tried to forcibly tie "mangala sutra"_to the_ne.c_k..oi deposed that accused No._gl3._: 'finger when she tried to resist his ill@z§al1lll'3liQ.§ts:" ' l
23. of PW1 8: PW'? we find accused No.1 to Srxvere "inside the house so aiso PW6. The dour-7:. had beenhoglted. from inside. Therefore, the door was ' forcibigt open. PW1 has narrated the whole incident. hasl_"_v~de';a.osed; by looking at the high handed acts of aclc"L1sed&,. he'; gave blows to accused No.1 and confined all the 'accused in his new house. The evidence of PW7 iends "'._sub'stantial corroboration to the evidence OEPWI & PW6. The (U. 30 first information relating to occurrence was lodged at about 8 p.rri., on the same day even before dead body of deceased was recovered. The wound certificate marked aspV..IE_x.»P;2.l'and. medical evidence given by PW3--Dr.Krishna7-ll/I.C'_;»:
establish that PW6 was examined:v'atM9;3O_ p.rn;, tberidate of occurrence and she had sufferedlaforegstatedv_injuIi'es.e_.if'
24. At this juncture, it notice, first information was recorded" at eigamination of PW6 by PW3--Dr.Krishna Mic; would ensure the time at dged The injuries found on --PW6zfgwould.illfleiidi "substantial I corroboration to evidence of Fwd? find PW1, PW6 & PW'? had no grudge of against accused 1 to 3.
The learnedv counsel for accused 1 to 3 would »-tihaltfoccurrence is alleged to have taken place at 12 noon. distance between place of occurrence and jurisilictional police station i.e., Holenarasipura Town Police 31 Station is about 5 kms. Therefore, there was delay in lodging the first information.
26. In order to appreciate this submlission, -- necessary to state that accused 1 ;i'$:fA.'?.'i7o'ere'--.c1oseAfrelatives of PW1 and deceased Parvatharnma No.8 friend of accused No.1. Aftergiaiata took. the"
house of PW1, deceased' ParVa1irainii';a_ had 'icftwthat place and she committed channel. PW1 & PW6 were§b«1*isy:- in wlzaody of deceased. The dead away themflowing water. It is in the €f0'idél1fl§jVflf:;l:'§?vI--l made attempts to trace dead of circumstances, if there was any delay: lodgirig information, that cannot be a discr'edi_t___the evidence of PW1 8: PW6. Accused 1 ' 3 after:their_exa1nination under section 313 Cr.P.C., have "filed aViarritte'riVstatement admitting their presence near place of flloccturrence. From the contents of written statement of if if accused, we find that accused No.1 had taken a definite that on the date of occurrence, accused 1 to 3 and 33 to the house of PW1 on the date of occurrence; later, PW1 refused to give PW6 in marriage to accused No.1; dveceased was very much pained and committed artificial.
29. PW1 had lost his wife. Pvve Ii}-ltd"beé1a._'s:.§t:j<§¢t§:d. humiliation and harassment. the ciiiou1nstance_Vs';~--~PW1 8: 2 L' PW6 could hardly concoct a "Lt.o'irnplicate.theiiaccused. Therefore, the evidence does not suffer from discr6E3a}'1f:iféS_._ witnesses. the prosecuti:bnV reasonable doubt that accused}, house of PW1 and outraged =.PW6 by using criminal force. Accused No.1 also right index finger of PW6 and caused hurt to 2 re'-'appreciation of evidence, I find accused No.1 re.rrio:ved a "mangala sutra" from his pocket. The evidence on record does not indicate that accused Nos.2 <3: 3 knowledge of accused No.1 had brought mangala sutra f\i , gfipvxtflm 34 and he had made up his mind to forcibly tie "mangala sutra"
to the neck of PW6 and to prevent any one from _.:11a1'fi';ng her. The evidence of PW6 that accused . tried to tie a "mangala sutra" to he_r..ne__ck; when:she"'tried to "
ward off him, accused No.1 bit not discrepant. Thus, We fin_d"-accused'No.17V:hac1..acted ind» highhanded manner. I'_)ecease_(_:_l_l: hatring seen these indecent acts of in in the presence of neighbours viz' the:.a--ecu:sed----l Iriodesty of PW6; and accused sutra", she was very deceased Parvathamma scolded _disgusting and shameful acts, accused' No.1 repentance for what he had doneyvcursede-the' deceased that she being sister of accused " Ngofll of suplplorting him was supporting her husband should die. The cumulative acts of accused l\lot__l fro'n1E--'the inception of occurrence till he cursed the xdeceased to die would definitely amount to instigation, the meaning of section 109 IPC.
N I 1 IL 9\.N-£\1'?
36 deceased to commit suicide. Therefore, the finding of learned Sessions Judge that accused 1 to 8 instigated deceased Parvathamma to commit suicide is apparently erroiieousvi. i.-
34. In a decision reported in AiR'"20OS9 then it ._ case of Kishangiri Mangalalgiri StSd'te.'gAof the Supreme Court has he1d:-- V ' it "11. Section 107.,---.iPC Add-efines"abetment--..of'§a thing. The offence ofdiiabeitnejrit separate and distinct offence PAr.Q\fSi-:1ed'd__V as an offence. .A"p_eison;_ abets of a thing when .-('1}'"' instigate's.._a:-iyiifperson to do that thing; or_V(:'.:>'_--} more persons in any doingiof that thing; or (3) or iiiegal omission, the doingrofithat thir1g..:fif}1ese things are essential to pieornplete'-» as a crime. The word ._.C"ii1stigate" iitéraiiy means to provoke. incite, =.urge<o'n iorbring about by persuasion to do any abetment may be by instigation, co__nspifacy or intentional aid, as provided in the three clauses of section 107. Section 109 it «.._provides that if the act abetted is committed in "consequence of abetment and there is no W \_,£?\-«\.'-»(.Q]\., 37 provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence.'"--._ 'Abetted' in section 109 means the specii'ic:"j"--._:"'-- offence abetted. Therefore, the offence .;. abetment of which a person is charged__v§it.h abetment is normally linkedmwithp offence. = 3 -c ,
12. In cases of alleged xsuicide must be proof of direct"-or .ln;1i1?e.:t {facts} of incitement to the . . suicide. VfT'he mere fact that it 'the it V.Ltre_ated the deceasedgwife with V' f not ietiough. [See Mahinder HStafe._VVo'i' " MP. (1995 AIR :§CW'_2i5§TQ]:.i' in
35. A'1;1'a_ deciszfan in 1995 SCC {Cd} 943 {in the case; of SwdrrzgvP1'c1.halczd Vs. State of M.P. & another}, the V" - sa'p£em;e Court ha§"fié1d:~ * .'';-.flf:3ose words are casual in nature which ar§;.'§§f:efi employed in the heat of the moment zbdetwhefen quarrelling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite mens rea on the N (:,Q,._,.t....1,.
38 assumption that these words would be carried out in all events. Besides the deceased had-'--.._ plenty of time to weight the pros and cons of act by which he ultimately ended his life. 'A \~ » A4
36. In the case on hand. the-re'.cofr1sistenf evidfcncve regarding words uttered by scolded the deceased for not sui3portirig.him_landisupporting'~ V her husband [PW1) and cuyrseddL_:'oe'tt-.er shevshodld die. If these utterances are a.o.t1Vt§~ and read in isolation, utterances l an offence punishable" llitilllllll-Iowever, the acts comnjtitted"iE{3f:v the house of PW1 outraging in fact would be his sister in the context of VhisAA~--re1'ationship with PWl and deceased hadhumiliated PW6. The acts committed by V =acc11_se.d"N'o,y1awere shameful. The occurrence had taken 'place the vision of other villagers. When deceased Parv'ath_arnma scolded accused No.1 for what he had done, " accused No.1 instead of showing repentance had scolded the 39 deceased that she should have supported accused_._1\_io.1, instead she had supported her husband (PW1) and sides with her husband, therefore, better she * the circumstances, 'the acts conirrutlted by all which were followed by his utterances abet'tedi»co1nrniss.ion suicide by the deceased and theacts of. accusedaAN.o;--v1.Vwould attract an offence punishable undaer:section.30EivlPCt?
37. As regards 'accused 2 8:: 3, there is no accused 2 8: 3 had had.V.come prepared to tie "manga1a's1a_trall.ato: iithe "P'a'«'E§. There is no consistent evidence tliat ' . had cursed the deceased. Therefore, . at learned Sessions Judge that _ accusiedv 2' 8: 3 had shared common intention to instigate the deceased 'to'coInmit suicide. There is no evidence on record 2 tosliow that accused 2 & 3 had caused voluntary hurt to «V PW6"aby 'dangerous weapons. However, from the evidence of PW6 8: PW?' it is proved that accused 2 8: 3 had .' corrirziitted criminal trespass into the house of PW1 and used M cgW"""6('* 40 criminal force, which in fact had the effect of outraging modesty of PW6. The learned Sessions Judge without proper appreciation of evidence on record has convicted ace'-use_d"-2 & 3 for an offence punishable under * invoking section 34 IPC. The evidencein proof if intention is lacking. The learned Sesisions L}:1.1d:fg€A113_'S notice that evidence on record does not'disc1ose.. tliaiivaccused 2 3' 2 & 3 had voluntarily__caused____h:urt'to Pl7\76« dangerous wea ons. Therefore, the _im ":1 fne'dl' meat re uires modification.
38. TheVVV"'ac.cepted in part. The judgment of _ A con»xrictio12 made '-ir;_35NC3..No.48/ 1998, on the file of Fast Track »Cou_rt-I,' at 'itilassan is modified. The conviction of accused ifNo...lsshiifal-ingappa for offences punishable under sections
-V 443;' & 306 {PC is confirmed. Accused No.2- iailikarjuna and accused No.3--Shekhara are acquitted of "offences punishable under sections 324 and 306 IPC. The (W 64;'/'9"""c1""
41
conviction of accused Nos.2 & 3 for offences punishabie under sections 448 82; 3534 UPC is confirmed. The learned Sessions Judge has sentenced accused No.2 to undergo rigorous imprisonment for a pe1iod..'~siX--.Arno'nths--.t K and pay a fine of Rs.500/-- each aifiqffepce under section 354 IPC, so a1so.they«ha{r'e been.."g,-entenced"
undergo rigorous irnprisonmenttfohr' a period 'or.?;hr'e¢ rnonths and pay fine of Rs.E~30:_(<_)"'/'~._-- each anndoffence punishable under section 448 IPC,vV_\yhi_ch.."_inf»my.:Vcons_idered opinion is not severe. A I----find"the"sentc.nceV"irnpQsed§ on accused No.1 for an offence, prinishahfiepéunderrsection 306 IPC is severe, having regard togfactstt' »--ciijcumstances of case and for the reasons~ stated " hereinafter: --
1 evidence on record, I find accused No.1 was in,f'atua,t.ed'3-pgtol marry PW6. The primary intention of accused No.1" vvgfias to marry PW6, which did not materialise due to it r.rej"e_'ction of his proposal by PW1, deceased Parvathamma f\J. . »9-AAQ .
42 and PW6, nevertheless accused No.1 was persistent in his thought and action. Accused No.1 was under 'strong impression that if he were to tie "rnangala sutra" tG--Tl_"iE§ of PW6, he alone could marry her. Accuse'd;--...NoA_{1flv.*as.--.' K it infatuated and he was harbouring'; suchwrong' infu1pression.V"« Accused No.1 in a bid to accomplish hislldesireppptoj ~. at all costs had committed afor:estatedV"acts,fbut: fact it remains accused No. 1 thabhis illegal and indecent acts have the mind of deceased Parvatt1pamr1i=a cursing the deceased would have effect of instigatirig commit suicide.
Haring .:pec4uliar facts and circumstances of {case and xcircunistances under which accused No.1 had ' Vin--stigaAted~.the deceased to commit suicide and also having H '--reg.a'rd.Vto"_~the!fact that accused No.1 was not married at the time of occurrence and he has chances to reform himself, it "\x;'ouldf'"be appropriate to reduce sentence from five years to three years for an offence punishable under section 306 IPC. ' N. 43 Therefore, whiie maintaining sentence imposed by the learned Sessions Jugzlge for offences punishabl_e..VV_urider sections 448, 354 and 324 IPC, I reduce _ imposed on accused |o.1 for an offence pu'nisi1i:ab1e».:undegr' section 306 IPC from five years to three u'years;*- imposed by the trial Court.'is~.._.contir::1ed. sentences shall run concurren:t1y,:T.be offldetention undergone by accused post-
trial stages is given section 428 Cr.P.C. secure accused 1 to 3 to "Qffice is directed to send back records a1ong_AWit'i3 a jofathis judgment. 1" Sg/.1 3? EDGE SNN'