Karnataka High Court
Mahadevanaika vs State By Saragur Police on 22 April, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:16541
CRL.A No. 557 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.557 OF 2012
BETWEEN:
MAHADEVANAIKA,
S/O. SHANKARANAIKA,
AGED ABOUT 40 YEARS,
NAIKA BY CASTE, MAGUDILU VILLAGE,
H.D.KOTE TALUK, MYSORE DISTRICT.
...APPELLANT
(BY SMT. ARCHANA.K.M., ADVOCATE)
AND:
STATE BY SARAGUR POLICE,
H.D.KOTE TALUK, MYSORE,
REP. BY SPP, HIGH COURT BUILDINGS,
BANGALORE.
Digitally signed ...RESPONDENT
by DEVIKA M
(BY SMT. RASHMI JADHAV, ADDL.SPP)
Location: HIGH
COURT OF
KARNATAKA THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C., PRAYING
TO SET ASIDE THE ORDER OF SENTENCE AND CONVICTION
DATED:21.4.12 PASSED BY THE II ADDL.SJ, MYSORE IN
S.C.NO.55/11-CONVICTING FOR THE OFFENCE P/U/S.498-A,
341, 307K R/W SEC.114 OF IPC AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
-2-
NC: 2025:KHC:16541
CRL.A No. 557 of 2012
ORAL JUDGMENT
Heard the appellant's counsel and also counsel appearing for the respondent-State.
2. The factual matrix of the case of prosecution against this appellant, who is brother of accused No.1, that he instigated accused No.1 to take away the life of the complainant and under the instigation of this appellant, the husband of complainant attacked on her and caused injuries. In pursuance of complaint, a case was registered and charges were leveled against the appellant for the offences punishable under Sections 498(A), 341, 114, 307 read with Section 34 of IPC. This appellant was arrayed as accused No.2 and case registered against accused No.1 was not tried as he is absconded, only this accused was tried. The accused did not plead guilty and hence the prosecution relied upon the evidence of PWs.1 to 13 and documents marked at Exs.P1 to P51 and also material objects at MOs.1 to 6.
3. The trial Court having considered the material on record, particularly in Paragraph No.42 noted that evidence of Investigating Officer further goes to prove that the part of the -3- NC: 2025:KHC:16541 CRL.A No. 557 of 2012 investigation is done by him particularly the seizure of sample tar, blood stained tar from the place of incident; in Paragraph No.43, it is observed that moreover, it is the instigation of accused which has to be proved by the prosecution; in Paragraph No.44, it has taken note of evidence of PW.1 that she has stated that when Panchayath was held and at that time, the appellant caused threat and alleged incident was taken place immediately after four days of said Panchayath and trial Court has also come to the conclusion that PW.1 has clearly stated in the complaint itself that police had fixed the date as 23.3.2006 for the purpose of holding settlement and entire facts clearly discloses that instigation by the appellant to his younger brother to commit the offence found and 313 statement is also a total denial and accused statement is only that he was separated and separately living in a village at H.D.Kote Taluk and not in the Magoodilu village and an observation is made that even assuming for the sake of argument that accused was residing separately from 20 years, that will not prevent one to instigate the another to commit the crime as rightly submitted by learned Public Prosecutor and having considered material on record, comes to the conclusion -4- NC: 2025:KHC:16541 CRL.A No. 557 of 2012 that offences punishable under Sections 341, 498-A, 307 read with Section 114 of IPC are established and appellant was convicted for maximum punishment of three years rigorous imprisonment with fine. Being aggrieved by the said judgment of conviction and sentence, present appeal is filed before this Court.
4. The main contention of the counsel appearing for the appellant is that the judgment of the trial Court is only based on the presumption and assumption and none of the witnesses speaks about instigation and only PW.1 speaks about the instigation and same is also not corroborated by any piece of evidence. In the cross-examination of PW.1, it is clearly elicited with regard to not making of any statement before the police with regard to instigation and with regard to the fact that she was threatened in the premises of police station. So also counsel brought to the notice of this Court that PW.1 speaks about Panchayath held but cannot say who are all were present in the Panchayath and also even none of the witnesses who participated in the Panchayath were examined before the trial Court. Hence, he prays this Court to acquit the accused on the -5- NC: 2025:KHC:16541 CRL.A No. 557 of 2012 ground that there are no materials placed before the Court to convict the appellant.
5. Per contra, learned counsel appearing for the State i.e., Additional State Public Prosecutor would submit that in the evidence of PW.1-victim, it is categorically deposed before the Court with regard to role of this appellant and trial Court also while passing an order extracted in Paragraph No.44 with regard to the threat that was caused to PW.1 and also taken note of the evidence available on record and in Paragraph No.46 has come to the conclusion that just because the complainant has not stated in the complaint that this instigation had taken place four days prior to present incident, it cannot be held that the entire case of instigation itself is false and baseless, especially when PW.1 has clearly stated in the complaint itself that police had fixed the date as 23.3.2006 for the purpose of holding settlement, whereas, the present incident took place on 19.3.2006. Therefore, the trial Court has rightly convicted the appellant under impugned judgment.
6. Having heard the appellant's counsel and also learned Addl.SPP appearing for the respondent-State and on -6- NC: 2025:KHC:16541 CRL.A No. 557 of 2012 perusal of materials available on record, the points that would arise for consideration are:
"1. Whether the trial Court committed an error in invoking Sections 498-A, 341, 307 read with Section 114 of IPC against the appellant and whether it requires interference of this Court by exercising the appellate jurisdiction?
2. What order?"
7. Having heard the appellant's counsel and also Addl. SPP appearing for the respondent-State, it is the case of the prosecution that accused being brother-in-law of PW.1, the allegation against him is that he instigated his brother to physically and mentally ill-treat PW.1 and also it is the case that on the instigation of appellant, his brother attacked the complainant on 19.03.2006 at 8.30 a.m. and he wrongfully restrained the victim and made an attempt to take her life with chopper, which caused grievous injuries. In order to prove this, charges were leveled against the present appellant who has been arrayed as accused No.2 and prosecution mainly relies upon the PW.1 evidence. PW.1 says that she knows accused and he is brother of her husband and also specific evidence is that her husband used to make galata and 5-6 times -7- NC: 2025:KHC:16541 CRL.A No. 557 of 2012 Panchayath was held and even mother-in-law took her to the police station and lodged the complaint once in eight years of her marital life. It is her evidence that on 19.03.2006, when she was proceeding to work along with Kempamma, Cheluvamma, Putthayamma and Devamma, this accused instigated his brother saying that she is lodging complaint against him regularly, to take away her life and he would spend the money to release him from jail. As a result, the complainant's husband made an attack on her and she sustained injuries.
8. In the chief evidence, in Para-7, PW.1 says that when there was galata between both husband and wife, the appellant used to instigate and 2-3 times, he instigated to take her life. This witness was subjected to the cross-examination and in the cross-examination, a suggestion was made that prior to her marriage, there was division in the family and same was denied. But admission was given that at the time of marriage, herself and her husband, mother-in-law and father-in-law were living together and in another house, elder brother of her husband was living. In the cross-examination, she says that her husband was consuming alcohol and making galata and -8- NC: 2025:KHC:16541 CRL.A No. 557 of 2012 Panchayath was held with regard to instigation made by this accused but categorically admits that she cannot tell who are all participated in the said Panchayath and she has not brought to the notice of this Panchayath to the Police. It is suggested that she is falsely deposing that this appellant was instigating her husband to take away her life. In the cross-examination also she says that when the accused instigated her husband, she was alone and no one heard about the said instigation. But also admits that when the threat was made in the premises of police station, she did not disclose the same to the police. It is also elicited that accused was staying in Magoodilu village along with his wife and children. Other witnesses have not spoken anything about the instigation of this appellant and also the evidence of PW.1 is very clear that at the time of instigation, she was alone and none were present. Though in the chief evidence, she stated that this appellant instigated her husband, in the cross-examination categorically deposed that the Panchayath was held but none of the panchayathdars were examined before the trial Court. PW.1 was not able to say who all participated in the Panchayath and also with regard to threat caused to PW.1 in the premises of the Police Station and -9- NC: 2025:KHC:16541 CRL.A No. 557 of 2012 categorically admitted that she did not bring to the notice of police on the very same day when threat was caused.
9. Having taking note of the admission of PW.1, it is very clear that she was unable to mention the name of panchayathdars and also with regard to panchayath held, which was not made material. Apart from that, it is clear from her admission that she was alone when the threat was caused and no one heard about threat caused. These admissions of PW.1 are available on record. Apart from that, elicited that the appellant was residing along with his wife and children separately and was not residing together with complainant's family. No doubt, the trial Court considered material on record particularly in Paragraph No.43, made an observation that with regard to instigation, Court has to take note of it. In Paragraph No.44, it is elicited that PW.1 was present in the compound of police station at the time when she was feeding her child, threat was caused and incident was taken place within four days and though it was elicited this answer from the mouth of PW.1 but PW.1 categorically deposed that instigation was made and the same was not brought to the notice of police at the very same day when alleged incident was taken place in the
- 10 -
NC: 2025:KHC:16541 CRL.A No. 557 of 2012 premises of the police station and apart from that, an observation is made at Paragraph No.46 that incident was taken place within four days and observation is made that even presuming for the sake of argument that the accused was residing separately from 20 years that will not prevent one to instigate another to commit crime. As rightly pointed by the counsel appearing for the appellant that only on assumption and presumption, a person cannot be convicted in criminal proceedings, unless the cogent evidence placed on record before the Court. The evidence of PW.1 is not credible and same is also not creditworthy in view of the admissions elicited from the mouth of PW.1. Even though she claims that she was alone at the time of instigation and same was also not stated before police immediately when alleged instigation was made that too within the premises of the police station and PW.1 ought to have been examined persons who have participated in the Panchayath though she claims that Panchayath was held and even unable to mention the names of panchayathdars who participated in the said Panchayath.
10. The trial Court failed to take note of the ingredients which have been invoked against the appellant with regard to
- 11 -
NC: 2025:KHC:16541 CRL.A No. 557 of 2012 Section 341 read with Section 114 of IPC as there is no evidence against this appellant as well as invoking Sections 498-A, 307 read with Section 114 of IPC, accepting only the evidence of PW.1 which is not creditworthy. Question of invoking Section 498-A read with Section 114 of IPC does not arise as PW.1 lodging complaint regularly is substantiated. Even for invoking Section 307 read with Section 114 of IPC, nothing is found at the time of incident of attack made by the husband, this accused was not present. When such material on record is not found, the trial Court committed an error in invoking Section 307 read with Section 114 of IPC against this appellant and hence the very reasoning given by the trial Court particularly discussing evidence available on record at Paragraph No.43 onwards, not substantiated and also nothing is found on the evidence of prosecution witnesses and none of the witnesses speaks about instigation except PW.1 and PW.1 evidence is also not creditworthy. Hence, it is a fit case to exercise appellate jurisdiction to reverse the findings on answering the above points as 'Affirmative'.
11. In view of the discussion made herein above, I pass the following:
- 12 -
NC: 2025:KHC:16541
CRL.A No. 557 of 2012
ORDER
(i) Appeal is allowed;
(ii) Impugned judgment of conviction and
sentence passed against the appellant in
S.C.No.55/2011 on the file of II Additional Sessions Judge, Mysore, is hereby set aside;
(iii) If any fine amount deposited by the appellant-accused, to be released in favour of accused on proper identification;
(iv) Bail Bond executed by the appellant-accused stands cancelled.
Sd/-
(H.P.SANDESH) JUDGE SMJ List No.: 1 Sl No.: 52