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2018 DIGILAW 1244 (SC)

Kempa @ Kempegowda v. State Of Karnataka, By Bannur Police

2018-08-08

R.BANUMATHI, VINEET SARAN

body2018
ORDER 1. Being aggrieved by the conviction under Section 498-A I.P.C., appellant-husband of the deceased-Nagamani has preferred this appeal. 2. Case of the prosecution is that the deceased-Nagamani was given in marriage to the appellant-Kempa on 12th June, 1987. Deceased-Nagamani and her 4 year old child were found dead by hanging in the house of the accused on 16th August, 1992. On the basis of the complaint of PW-2, Chikkanagu, step brother of the deceased, an F.I.R. was registered. After completion of investigation, a chargesheet was filed under Sections 304-B, 306 and 498-A I.P.C. and also Sections 3,4 and 6 of the Dowry Prohibition Act. 3. The trial court acquitted the appellant under Sections 304-B, 306 and 498-A I.P.C. and also Sections 3,4 and 6 of the Dowry Prohibition Act on the ground that the evidence of PW-2- Chikkanagu is fraught with inconsistencies. In the appeal preferred by the State, the High Court acquitted the accused-appellant with regard to the charges under Sections 304-B, and 306 I.P.C. and also under Sections 3,4 and 6 of the Dowry Prohibition Act but convicted the appellant by reversing the findings of the trial court in respect of offences punishable under Section 498-A I.P.C. and sentenced him to undergo rigorous imprisonment for two years. 4. Being aggrieved, the appellant is before us. 5. To prove the dowry harassment and cruelty to the deceased- Nagamani, the prosecution has examined PW-2, Chikkanagu, step brother of the deceased, who has deposed that even at the time of marriage accused has been making a demand of Rs. 7,500/- and 20 guntas of land and the same was settled at 20 guntas of land and Rs. 5000/- in cash. PW-2, Chikkanagu, stated that whenever deceased-Nagamani came to the house she used to complain about the ill-treatment meted out to her. PW-2, Chikkanagu has also stated that the deceased-Nagamani came to Chikkanagu's (PW-2) house and stayed for one and a half years. Thereafter, panchayat was convened in which CW-2, CW-25, CW-26 and CW-27 have participated and thereafter deceased-Nagamani went to the house of the appellant. The witnesses have stated that as demanded by the appellant, in addition to 20 guntas of land another 10 guntas of land adjacent to 20 guntas of land was given and bond paper in regard to 30 guntas of land was executed. The witnesses have stated that as demanded by the appellant, in addition to 20 guntas of land another 10 guntas of land adjacent to 20 guntas of land was given and bond paper in regard to 30 guntas of land was executed. To the same effect is the evidence of PW-3, Nagamma, sister-in-law (bhabhi) of PW-2. Prosecution has additionally examined PW-4, B.C. Parthasarthy; and PW-5, K. Ramanna, who have stated about the panchayat held in the house of PW-2, Chikkanagu and participating of members and also spoken about 10 guntas additional land in addition to 20 guntas already given to the appellant. 6. Based on the evidence of PW-2, PW-4 and PW-5, the High Court has held that the prosecution has established guilt of the accused and proved the charges for the offence punishable under Section 498-A I.P.C. and convicted him and we find no ground to take a different view. 7. Mr. Trideep Pais, learned counsel appearing for the appellant, has placed reliance on Mookkiah and Anr. v. State, Represented by Inspector of Police, Tamil Nadu - (2013) 2 SCC 89 and submitted that when two views are possible and when the trial court has taken one such view, the High Court being appellate court ought not to interfere with the said findings of the trial court 8. As held in Chandrappa v. State of Karnataka - (2007) 4 SCC 415 , the appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. When there is no proper appreciation of evidence and when the findings of the trial suffer from serious infirmity, the High Court being the appellate court can certainly interfere with the order of the acquittal. Faced with the evidence of PWs 2 to 5, in our view, the trial court ought not to have recorded acquittal upon appreciation of evidence. Therefore, the High Court, in our view, has rightly reversed the acquittal of the appellant under Section 498-A I.P.C. 9. For the offence punishable under Section 498-A I.P.C., the High Court has sentenced the appellant to undergo rigorous imprisonment for two years. The incident took place on 16th August, 1992, way back 26 years ago. Therefore, the High Court, in our view, has rightly reversed the acquittal of the appellant under Section 498-A I.P.C. 9. For the offence punishable under Section 498-A I.P.C., the High Court has sentenced the appellant to undergo rigorous imprisonment for two years. The incident took place on 16th August, 1992, way back 26 years ago. Having regard to the passage of time and the facts and circumstances of the case, the conviction of the appellant under Section 498-A I.P.C. is confirmed, however, sentence of imprisonment is reduced to one year. 10. We make it clear that the reduction of sentence is in the peculiar facts and circumstances of the present case and the same may not be treated as precedent. 11. The appeal is partly allowed. 12. The appellant to surrender to custody within four weeks from today to serve the remaining sentence failing which he will be taken to custody.