Karnataka High Court
State Of Karnataka vs Mallikarjuna on 10 January, 2011
IN THE HIGH COURT OF KARNATAKA AT BANGALQRE
DATE-D THIS TE-{E £01" DAY OF JANUARY 20} 1
BEFORE
THE) ["iON'f3LE MRJUSTICE B.V.PIN'I"O
CRIMINAL APPEAL NO.426 OF 2004 SJ {A};
BETWEEN :
STATE OF KARNATAKA, ._
BY ACP 0:? J.C.NAGAR I
POLICE STATION,
BANGALORE. _ ' '
'v~.1_;'m?.P1ELLAm*.
(BY SRLVIJAYAKUMAR Heep}, ii
AND
,MAu;1K;ARJL§NA.,«
SON OF Kai'NGA1A1a,"'*--. '
AGED 38 YEA;jRS;' ~~ " ~ 4.
R/O RMV 11 _STA(3E;_;~NO.4
. FRONTAGBOF TRUE CROSS HOSPETAL.
SANJAYAE'»--IAGAR,
" EsANGAL0RE"'z'55o 094.
" u($1?21:;';5§'}§,:\z;:3r1A:\:13As). AMICU-S CURIEA
' 1. F0Rg.Ra:s'§>oNDEN'r.
C'RI,Lx§. FELED U/S 378(1) & (3) CRRC BY THE S'1.'Af}f'E
RP. :i"C>_¥+i TEWIEZ STATE PRAYINCE THAT THIS HONBLE COURT
Exzlgéfixf" BE PLEASEZD TO G-RANT LEAVE To :«'11,13 AN APPEAL
* _AGAlfNST THE JUDGEMENT DT.6.9.2003 PASSED {N THE XII
S.J., BANGALORE IN S«C.NO. 120/O1-
';~xD'DL.c:,<:. &
R'Es;>0N:)ENT/Accusmn FOR "rm:
é%iCQUE'.F'1'ING Tliii',
OFFENCES P/U/SAQSWA 308 OF EPC.
/2""
2'
. . . RESPONDENT.
Ix)
THIS CRLA COMING ON FOR HEARING ON THIS IZIAY,
THE COURT DEEJIVEZRED THIS FOLLOWING.
JUDGEMENT
This appeal is filed by the State challenging the judgnlem. dated 6.9.03 passed by the 12"' Addl. Civil Judge,Bangalore, in S.C..l20/O1 aequitting of the offence under Secs.498--~A and 306
2. The ease of the p1"0S:L2C'.uti01«1jj. is 4'1--h'e__'lag:yeLi.sed~.._ '_j Mallikarjuna was married _t0_4__the 'deeeased'.l?§éa:nj'a'la I'§1«5'yea1fs back and subsequently after got thleee children and thereafte13_"i:he .fls€'arteclHIill:l;reat,ing and harassing the is alleged to have Commlfiecl. ' 'I Sec.498--A IPC. It is furiher charged agai11stIih.ezaeelfiysed that on 18.7.00 at about 5.30 p.m..i, deceased eofiimitted suicide by pouring kerosene on . lie-..r_ pelrsonylland set herself on fire due to harassment given by ll Stage at Sanjaya Nagar in their house"
accused" was coming home in drunken state and abusing; . hezf anfii"assau§.t'ing her; *g.l1erebyl he is alleged to have eommitted I offence under Se-.e.306 IPC.
3. The prssecutiom in order to prove the case has examined in all 15 witnesses and g<:>i1rnark.ed E:s<.P~l to P-15 and produced }\/103.1 to 5. ease of the accused is (me of total denial.
4. After hearing the prosectuiion and i:.h.e defence, the ieamed Sessions Judge was pleased to acquit the aeeused of the offence for which he was tried. The State h.2;sV., this appeal}.
5. Heard Sri Vijayakumar _Meg'_age._-'Ie:ii":e:ed'V'I'iCGP Sri T.K.NlOhE1fi.dElS. learned eoun'-séei iher»._aeeuséd'-s,yhiVz_was "
appointed as Arnieus Curiae bya'-order A{EhVi_§H 5.1.201 I. A i
8. Sri Vijayakufiieir' M:_;ag1.-Q"1'ea;fied__" I-ICGP submits that in ihi.s,icase, fires-ee'ui»10_r1. ii h'as....e:;<an1i11ed PW-1. the father of the deceased'ahdff-~.i%5V»?g'%i;*s.__:€32'i/1e is the daughiger of the deceased. He furthe}~s.5iJbVmVi'1.s is dying declaration recorded by..1'~.3*WuhI3 in presrsiice of Dr. R Chandrashekhara, PWWS. dyir1g'.deeiarai.ion of the deceased clearly indicts the aei:,u,sed' ifegardiing iiiwtreaicmerit and halassmem and iherefore, he 'é':,ii:,.m::{-.3' the eVid'e1"i.ce adduced by ef the p:'£)S€C'LiUOTi has §;ray_'edVV"' beyond reasonable doubt. that ihe aeeused is the "'ea.i;1se of death Of the deceased. pr<3seeLd.ier: aise preveci '"hara.ss:men'z, given by the accused tie the deceased. i3W----12 is the / sister of the de<:easc.dl Her evidence also corroborates the evidence of PWJI and PV\fi4 and the dying declaration. "therefore he submits that the accused is liable to be convicted for the offence under Sec.498~A and 306 IPC. H€}'1CE'., Subhrite that the appeal may be allowed. V dd '7". The learned amieus curiae submit:s-- 3__t11atft'h._<T3 *'.c_ro_ss examination of PW-cl and PW-4 clearly g1v'e'sv"g,0'¥'oy'eAV 'tl1eu'=_ charge framed In this case. PW-- 1 g;:1tego.i'ica-llfy"State-do that .:
the deceased and accused We-re lixrihg ppifydd' wife for long 15 years and :h;{{={:>'vz;1 arid along with other children and t;he..deceased. happy family life. The death.,rhas «o3'ec,urr.e»d--.due"tor.-the reaaon other than any act of the accused::"~..He.Vdfzlrthler submits that Ex.Pa4 does not contain thesigna't.u1'e._oF.e§'ther the person who recorded it nor thefiersort who"hae___w;"itten the same. Since the police who has ~ recorded'tl'1eV«St.atement has not stated in EX.P-4 that he has "1'ec<3.rded' admitted that handwrithlg in I:Ex.I§>~4 is not his, thehdéj:-ro'&§eci;ti.or1 ought tea have exarrxmed the scribe ef E2x.P»<L _:3i:n;ee the scribe of Ex". P4 is not examined, the aut,her1t'ie1'ty of '"E§i;l~"'¥'-<I+ is do1.1btful. He sab:mitss that Dr. Chandrashekar, PW~5 ' V' "has 1:191 at all stated in Exli-X4» that the deceased was in a fit we I conditioil to give statemeiit and the1'efo3'e§ the fitness and capacity of the deceased to give staterrient as per ii1x.P«~4 is not proved beyond reasonable doubt. Under the eiwumstiancres, he submits that the order of acquittal passed by learned Sessions Judge does not call for interference. V t
8. I have gone through the ._:'b'}*_._:.ihe learned Sessions Judge and the evidence
13. PW--i in the cross ex.am.inatio1'i'-._ eCéitegofica'i1y"stated'that". -1 the deceased and the accused \V€1;C-_1iV'ViIV1g'~h.EijQ:1'3.ily and that they were celebrating the feasts it'oget.her, they occupied a house for rent in Ste:-iijaya5_Na;;;si*a,'».Ti'i'iejre used to be minor pin--pi"i.ei{'s~ 'hnsbandvfand the wife. He used to pacify xx7e1=§V"1'ixfing together; He has denied that the deceased . was 'A._i.iitEoi'n1ing him that the accused was drinking' and "--V.c_o_1jm11g home drunk and was assaulting.
'Howevei-;«.A 'i1:e"'h__as denied that due to stubborn conduct of the deceased. .she'T:herse1I' has committed suicide. and 8 who are close teiatives of the deceased have ttifned hostile to the case of the prosecution. §>w>4 has that on the date oi" the incident herself and her brothers it ""ivere piaying in the cot1rt'.yard. Their i'ath.e;: was observirig (1 them while they were piaying under the 'tree. They were given bus fare by their i"ather and mother. She was going with her father to purchase things to the house. During iestival season, all of them were going together to the Village. ' 1.0. PW~5 Dr.R.Chandrshekhar has the deceased had sustained 60% of i1'1jti'1'y examined by him. However, he has state.{i"':1"1a:tV» the deceased had given statement as per A. '*i;f1A&the.". --:
cross examination that h€rCE!.flI1OtV" as afe_:a1l aeconapa.nied the deceased to hospitalfiiiiele has admitted that he has certified t};at':Vithe--'_Vdeeeas.e_ctAAwas in a fit condition to give statement; Ho'weve'r,gi=i.e has'-wstated in E,x.P--5 the discharge summa=ry"ti'1a1.'4 "was in a fit condition to give staternenttf M lit; Dhanaiakshrni has not supportecl the ease of proseeu1;iAo';1__. PW~7 Vei'1kai:aiah is the Tahsiidar who has HeoiidLievtved7."gthE;=.uivriquest proceedings. PW38 Kariyappa is the Poiieegw-?ho.'has arrested the accused. PWWQ Naghabhushana it eafried the artieies to the ESE" Ba1i1g.aio1*e. PW" 1.0 'ii,Chandrashekharappa, Asst. iimgizieer has dzziwrn the sketch scene of offeiiee. Mi/V11 Muniyappa has carried the 1'r1'Limai.iori to the S}-E0 Sanjaya N£;1§.§.':11"a from Victoria hospital.
E2. PW~ 12 is ihe sisfer oi" the deceased' She stated that the accused was giving 111 Ueaimeni to by coilsummg alcohal. PW-- 13 Shafiulla was stated that on receipt of Ex.P--5 fifrioili;'ihehospiiiaij. he has been to RMV hospital and the irijured Manjula. The siaie1i1eicii§"'--oI' I\./iaiégfiiiad Writieh by' station writer. Howeyer, staai.di'0"1'1i wiciier has not been examined. a 'V a V d
13. PW~14:;E'>ia_iVaIihgs1i3;}§a "of J.C.Nagar area. He has C0iId"L1C§e"fi péiiii;; "of'i1iNesiigé1'tie1i' in this case and filed charge sheet. dd
14. "1'm_§n;V the_eVid'e:iice on record, it is seen that apari from &_ 'wh_o___a;'e the close reiaiiives of the deceased, the ~oVniy_doVcuniefii__ relied upon by the prosecution is Ex.P--4 the Hste;'£eimefii«."_"-..oVif:;.ihe deceased recorded by the Police in the hos4j:z'iai~V._ iiowever, in the witness box, PW? E3 has stated ihai;
heiihasvvdfecorded the siai,emeI1.i: of the deceased. Such fact is 'mi: home out in ExiP~--4i He has oriiy registiered the coinpiairii in "idhe Police Station and no one has endorsed Ex.P--4 10 show ' /E that the same was 1'ee::0rded by him. On the other hand, E'W--13 states that the cornpiaint was xx.-rr*;t'ter1 by the Station Writer. Neither the sigiiature of the station writer is fetlnd in I*?xt.P-4 nor the said station Wfit,f3l' has been cited or examined t0__s11ow that in fact Ex.P--4 was recorded from the deceased In View of the above, the very authenticity of uiVs1'?:'db€;bt.Fs;.1. Further, PW--5 has not endorsed 'jpat1'e'1'1t V=Jas";.ru;"
a fit condition to give statemen't'. U';i:.d'er'iethe e'ire'i::mstfsV;1cest "
the learned Sessions Judge: has rtghttly Vrejeeteti..,the_.'3evtde.nCe of PW-4 as putferward t11r0'ug1'i'.E',}x.--P?--4. ethei': evidence of near relatives of the deeeé;sed__ waise_"ieGniirai*y to each other in View of the_a'd1'nis:s;i0ns..>ef PW---~1»- in the Cross examination and also PWJE inxhei brassVte:>gaininat;ion. PWW4 was aged 14 years as on the'd,ate.of '1'.l'"i6A'f'3)§2?.iI:fi'i:1'1E1'L1'()3'1 before the Court and she has stateifi that vvh'i--1€Vv._'_di1aining puberty her uncie had met the ~e1XpeVns.es«., 'Under the circumstances. PW-4 is a competent '.'u"Jit.iiis?5Ss'.V the evidence of PW~4~ that herself and her E3ai*e'nt4s"«vAa'ndf: brother and sisters were gieiriéi to the viiiage and were ee1eb'rating the feasts happily. 'I'hereferet there is I10 §i1*eper evidezuee to hoid that the accused was harassing the t V' "deceased while living as husband and wiie. Further it is to be 2/_, noted that ii: is e.1icited in the prosecutiori evidence that for .15 years, husband and wife were iii-ring happily. Under {he eircum.stances. the coneiiision arrived at by 'me Ieanied Sessions Judge that the prosecution has moi proved harassment oriii~treai1nentis neither perverse the evidence on record. On a careful reapp1'eci.a_i,~i§on 'O'f§-'.».:rii;ire material on record. I do not find aiiy» 1"eas()j"1"tO:"'v!1ij'set_th€ considered judgment of acquittal fjiassedflayi V'::'£)_ii';i":i;"'€tf1C1."'~. = in that View of the matter, this«.._appe'a-1 is iiab1e"f:ii.<};;ye and accordingly, the appeal is déisiziiissed. I place on reCe.ifd the ;sei1}i.ee.s"'~ife11dered by Sri T.K Mohandas hafs"assis'ied theiiedurt as amicus curiae. Office is di'ree"ted io' "lf_<_"s;5000/-- as and by way of fees. 51 fit;