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2025 DIGILAW 21 (KAR)

Nagaraj M S/o Manjappa v. State of Karnataka

2025-05-02

H.P.SANDESH

body2025
ORDER : H.P. SANDESH, J. This revision petition is filed challenging the judgment of conviction and sentence passed by the Trial Court in C.C.No.224/2009 dated 10.06.2016 and the confirmation of the judgment of the in respect of Section 498A of IPC by the First Appellate Court in Crl.A.No.10008/2016 dated 30.01.2017. 2. The factual matrix of the case of the prosecution is that the complainant – Kasthuri had married this petitioner/accused on 25.04.1993 and after the marriage, accused started ill-treating the complainant by physically and mentally for one or the other reasons. On 05.04.2009 at about 10.00 p.m., the accused assaulted the complainant and pulled her hair and smash the head against the wall and gave the life threat. Hence, a case was filed against the accused. The police have registered the case, investigated the matter and filed the charge-sheet. The accused did not plead guilty and claims for trial. The complainant in order to prove her case, examined herself as PW1 and also examined nine witnesses as PW2 to PW10 and got marked the documents at Ex.P1 to P6. The accused subjected to 313 statement and not led any defence evidence. The Trial Court having considered both oral and documentary evidence placed on record convicted the accused for the offence punishable under Section 498A and 506 of IPC and sentenced to undergo rigorous imprisonment for a period of one year for each offences with fine of Rs.5,000/- for each offences. The said judgment of the Trial Court was challenged before the First Appellate Court by the accused in Crl.A.No.10008/2013 and the First Appellate Court having reassessed the material on record allowed the appeal in part and acquitted the accused for the offence punishable under Section 506 of IPC and confirmed the judgment of conviction and sentence in respect of offence punishable under Section 498A of IPC. Being aggrieved by the judgment of conviction and sentence of both the Courts, the present appeal is filed before this Court by the accused. 3. The main contention of the learned counsel for the petitioner is that both the Courts have failed to consider the material on record in a proper perspective while convicting the accused for the offence punishable under Section 498A of IPC. The Courts below erred in appreciating the fact that witnesses to the incident are interested witnesses. 3. The main contention of the learned counsel for the petitioner is that both the Courts have failed to consider the material on record in a proper perspective while convicting the accused for the offence punishable under Section 498A of IPC. The Courts below erred in appreciating the fact that witnesses to the incident are interested witnesses. Apart from the fact that they are tutored and under the undue influence of the complainant as she was the member of Sagar Nagara Sabha and the witnesses deposed before the Court against the petitioner. The Courts below erred in considering the evidence of PW8 and PW9 who are not the witnesses sighted in the charge-sheet nor they are subject to the investigation before the Investigating Officer. It is also contend that the First Appellate Court ought to have allowed the appeal in its entirety as the witnesses sighted by the police have not supported the view point of the complainant and the same is clear violation of principles of natural justice. Hence, it requires interference of this Court. The counsel also would vehemently contend that even invoked the penal provision of Section 498A of IPC, there is no ingredients are found in the evidence of prosecution witnesses and hence, the Courts below committed an error in convicting the accused for the offence under Section 498A of IPC. 4. Per contra, the learned counsel appearing for the State would vehemently contend that there are material in respect of the offence punishable under Section 498A of IPC and same has been appreciated by both the Courts and hence, not committed any error and rightly answered point No.1 in coming to the conclusion that the evidence of PW1 inspires the confidence of the Court and she has categorically deposed that accused started harassing her after 4 to 5 months of the marriage and thereafter continued the harassment and subjected her for cruelty and even abused in a filthy language and kicked her and also smashed her head against the wall and dragged the complainant and assaulted. The prosecution also relied upon the evidence of PW2 and PW3 who are the circumstantial witnesses and she is the mother of PW1 and she reiterates the same and PW3 also mahazar witness and PW4 is the eye-witness to the incident and PW5 is a panch witness and PW6 is also eye-witness to the incident. The prosecution also relied upon the evidence of PW2 and PW3 who are the circumstantial witnesses and she is the mother of PW1 and she reiterates the same and PW3 also mahazar witness and PW4 is the eye-witness to the incident and PW5 is a panch witness and PW6 is also eye-witness to the incident. The Trial Court rightly taken note of the evidence of PW1 and PW2 and PW4 and PW6 and not committed any error in appreciating the evidence. The First Appellate Court also though reversed the finding of the Trial Court in respect of Section 506 of IPC but rightly confirmed the judgment of the Trial Court in respect of Section 498A of IPC and hence, it does not requires any interference of this Court. 5. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, the point that would arise for the consideration of this Court is: 1. Whether the First Appellate Court committed an error in confirming the judgment of the Trial Court for the offence punishable under Section 498A of IPC and the finding of both the Trial Court and the First Appellate Court for the offence punishable under Section 498A is erroneous and perverse and whether it requires interference of this Court exercising the revisional jurisdiction? 2. What order? Point No.1: 6. Heard the learned counsel appearing for the respective parties and also on perusal of the material on record. The scope of the revision is limited. Whether there is any perversity in the finding of both the Courts, the same has to be looked into. This Court would like to refer the document of Ex.P1(a). Having considered the Ex.P1, it is very clear that marriage was performed on 25.04.1993 and she is having three daughters and also it is stated that the accused was cordial for six months and thereafter, started abusing and assaulting and insisting her to give divorce. It is also her evidence that she has become a Member of the municipality and he started suspecting her. That on 05.04.2009 at about 10.00 p.m., he came with an influence of alcohol and abused her in a filthy language and when she questioned, he hold her hair and assaulted smashing her head to the wall. The said incident was witnessed by Ganapathi, Shajira and Manjanna and pacified the galata. That on 05.04.2009 at about 10.00 p.m., he came with an influence of alcohol and abused her in a filthy language and when she questioned, he hold her hair and assaulted smashing her head to the wall. The said incident was witnessed by Ganapathi, Shajira and Manjanna and pacified the galata. The panchanama was conducted in terms of Ex.P2. Further statement was recorded in terms of Ex.P3. Ex.P3 is with regard to the delay in lodging the complaint. Ex.P4 is the marriage invitation and Ex.P5 is the photograph of both of them. Ex.P6 is the FIR. 7. Now, this Court has to consider the oral and evidence of witnesses. PW1 is the complainant and she reiterated the contents of the complaint in the oral evidence of PW1 and this witness was subjected the cross-examination. In the cross-examination, regarding the incident is concerned, she says that accused assaulted on her head and kicked and smashed her head against the wall and dragged her holding hair and also locked the door and assaulted. But not sustained any injury and even not sustained any injury when the accused pressed her neck and also deposed that accused smashed her head to all the walls but not shown the wall to the police when they visited the house. It is also elicited in the cross-examination that she did not inform the said incident to the police and also admits that police station was at the distance of 1½ k.m. When the suggestion was made that no difficulty to go to the police station, she says that auto was not available and she did not give complaint since incident was taken place at 11.30 p.m. The incident was witnessed by her children and the children brought the neighbourers to pacify the galata but she informed the incident to her mother over phone and thereafter also incident was continued for about 45 minutes. The mother came on the next day and took her to the hospital and complaint was given on the next day in between 11.30 to 11.45 and also she did not show any injuries to the police and she did not go to the hospital for treatment and police recorded her statement and she has signed the same and she got it typed the same and she did not show the particular place to the police and police examined entire house and she admits that Manjunatha and Shahida belongs to their locality but admits that Manjunatha came to the spot after ten minutes of the incident. Six to seven persons gathered to pacify the galata both of them belongs to different caste and also she admits that she became as President of municipality. A suggestion was made that after becoming a member and President of the municipality, sent the accused to jail and the same was denied. 8. PW2 is the mother and she reiterates the evidence of PW1. PW2 admits that accused was a auto driver. Only when the daughter discloses about the assault, she came to know about the same. But she claims that she took her 2 to 3 times to the hospital and also even taken to the police station and admits that no panchayat was held and she cannot tell the date and timings of the incident and she deposed that daughter called her at 11.00 p.m. The police did not send the daughter to the hospital and she also not given any statement to the police and admits that the accused only admitted the children to the school till the complainant elected as member of the municipality and also admits that after the election, her daughter earned sufficient money. It is her evidence that she took the daughter to the hospital on the next date and thereafter went to the police station. 9. PW4 is the other witness and he says that when he went to pacify the galata, accused abused him and he says that accused pulled him and then assaulted her and witnessed the incident. His house is after 4 to 5 houses of the complainant and also deposed that at the time of incident, she was a councilor. This witness was subjected to the cross-examination. His house is after 4 to 5 houses of the complainant and also deposed that at the time of incident, she was a councilor. This witness was subjected to the cross-examination. In the cross-examination he admits that the distance between his house and the house of the complainant and accused is four kilometer and the complainant is residing separately and he cannot tell when she left the company of the husband and unable to hear what was going on in the house of the accused and he witnessed the incident of abuse and also assault and admits that the complainant was the councilor of his area and used to do his work. 10. PW3 and PW5 are the mahazar witnesses and they are not material witnesses. PW6 is the another eye-witness to the incident wherein she deposed that when she went to pacify the galata, accused scolded her stating that same is not related to her and thereafter accused started abusing the complainant and she pacified the galata. In the cross-examination of PW6, she admits that the accused and the complainant were not quarreling with each other. The other witness is PW7 who is a neighbour. PW7 deposed that the accused and the complainant were not cordial and used to quarrel with each other. PW7 also deposed that accused came and started abusing the complainant and this witness was treated as hostile. In the cross- examination of PW7, it is elicited that when she standing near her house, she cannot see what is happening in the house of the complainant and the accused and she does not remember the date of the incident and the complainant’s daughter called her to pacify the galata and it requires 5 minutes to go to the house of the complainant and when she went to the spot, accused stopped assaulting the complainant. But she admits that she did not witnessed the assault. The other witness PW8 is a PSI and he says about the lodging of the complaint and recording of statement of the witnesses. In his cross-examination, he admits that in connection with the dowry, harassing the complainant was not found but he admits that 15 years prior to the incident, they were cordial. The other witness is PW9 who is a daughter of the complainant and accused. In his cross-examination, he admits that in connection with the dowry, harassing the complainant was not found but he admits that 15 years prior to the incident, they were cordial. The other witness is PW9 who is a daughter of the complainant and accused. She says that accused assaulted her mother with the firewood and she was present on the date of the incident and her mother sustained injury and she also deposed that when she went to pacify the galata, accused assaulted her also. It is suggested that she was tutored by her mother and the same was denied. The other witness is PW10 who is also a daughter of the complainant and accused and she deposed that both the sisters were present at the time of the incident. 11. Having considered the material on record, this Court already pointed out that evidence cannot be re-assessed but if any perversity is found, then, this Court can interfere with the finding of the Courts below. It is important to note that PW1 says that incident was taken place on 05.04.2009 and accused assaulted her and smashed her head against the wall. It is also important to note that with regard to the very incident is concerned, though deposed that accused kicked her and smashed her head against all the walls, but no injury is sustained. It is important to note that PW1 says that she did not go to the hospital and she went to the police station and gave the complaint. But the evidence of PW2 is contrary to the evidence of PW1 wherein PW2 deposed that when she went to the house of PW1, she took PW1 to the hospital and thereafter went to the police station. 12. It is important to note that the prosecution mainly relies upon the evidence of PW9 and PW10. According to PW1, both the daughters were present at the time of the incident and PW9 deposed that accused assaulted her mother with the firewood and she sustained injury all over the body. But no evidence before the Court by PW1 that she had sustained the injuries. Hence, the evidence of PW9 is contrary to the evidence of PW1. Hence, the evidence of PW9 does not inspire the confidence of the Court. But no evidence before the Court by PW1 that she had sustained the injuries. Hence, the evidence of PW9 is contrary to the evidence of PW1. Hence, the evidence of PW9 does not inspire the confidence of the Court. The other witness PW10 is also a daughter of the complainant and accused and though she deposed that accused smashed the head of PW1 against the wall, her evidence is also contrary to the evidence of PW1. Hence, it is clear that PW9 and PW10 are tutored witnesses supporting the mother-PW1. 13. No doubt, the prosecution mainly relies upon the evidence of PW4 wherein he deposed that he witnessed the incident of assault and abuse made by accused to the complainant. But PW1 in her cross-examination categorically admits that PW4 came to the spot after ten minutes of the incident. Hence, it is clear that he was not present at the time of the incident. The prosecution also mainly relies upon the evidence of PW6 wherein PW6 also claiming that she witnessed the incident but in her cross-examination, she admits that both of them were not quarreling. The other witness is PW7 and PW7 deposed that both of them were quarreling with each other but in her cross-examination, she admits that she witnessed the incident of abuse and assault but again admits that she did not witnessed the assault made on PW1 and also deposed that in order to go to the house of the complainant, it takes five minutes from her house. But she says that when she went to the spot, accused stopped the assault. Hence, the evidence of PW7 also not inspires the confidence of the Court. Hence, with regard to the incident is concerned, the very incident is doubtful since there is no any material on record to prove the case of the complainant and contrary evidences are given and PW1 did not go to the police station immediately and also she was a councilor at the time of the incident and incident was taken place at 10.00 p.m. and the complaint was given on the very next day. Apart from that the evidence of PW1 and PW2 are contradictory to each other as well as the evidence of PW1 and PW9 and PW10 also contrary to each other since PW1 says that she did not go to the hospital but PW2 says that she took PW1 to the hospital and PW9 deposed that accused assaulted her mother with firewood thus, PW1 sustained injuries but no injuries found on PW1 and no wound certificate is also produced before the Court in this regard and PW1 also deposed that she has not sustained any injury and she did not go to the hospital also. Hence, the material evidence is contrary to each other. 14. Having perused the judgment of the First Appellate Court also it discloses that the First Appellate Court even did not look into the record while confirming the judgment of the Trial Court in respect of Section 498A of IPC. The First Appellate Court only taken note of the evidence of PW1 and PW2 and not discussed the evidence of each of the witnesses while re- appreciating the evidence and hence, the very approach of the First Appellate Court is erroneous since except extracting the offence punishable under Section 498A of IPC in paragraph 22 nothing is discussed and erroneously proceeded in confirming the judgment of the Trial Court in respect of Section 498A of IPC. Thus, there is no re-appreciation of evidence by the First Appellate Court. Hence, the very finding of both the Courts is against the material on record in respect of Section 498A of IPC is concerned. In the absence of discussion with regard to the material on record, if finding is given, it amounts to perversity since the material on record does not inspire the confidence of the Court with regard to the very incident of assault and subjecting the complainant for cruelty. In the absence of discussion with regard to the material on record, if finding is given, it amounts to perversity since the material on record does not inspire the confidence of the Court with regard to the very incident of assault and subjecting the complainant for cruelty. It is emerged in the evidence of Investigating Officer who conducted the investigation that prior to becoming the member of the municipality by the complainant, both the accused and the complainant were cordial and records discloses that after she became the member of the municipality, differences were arisen between them and according to PW1, the incident was taken place on 05.04.2009 and the same was not corroborated with the witness evidence and though one of the eye-witness categorically admits that the complainant was a member of the municipality and she was attending his work, it is clear that this witness is an interested witness. These aspects were not taken note of by both the Courts. Thus, the finding of both the Courts in respect of Section 498A of IPC is perverse and not based on the material on record and it requires interference of this Court exercising the revisional jurisdiction. Hence, I answer the above point as affirmative. Point No.2: 15. In view of the discussions made above, I pass the following: ORDER The revision petition is allowed. The impugned judgment of confirmation of the judgment of the Trial Court passed in C.C.No.224/2009 dated 10.06.2016 in respect of Section 498A of IPC by the First Appellate Court in Crl.A.No.10008/2016 dated 30.01.2017 is set aside and the judgment in respect of Section 506 of IPC is confirmed. The judgment of conviction passed by the Trial Court in C.C.No.224/2009 dated 10.06.2016 in respect of Section 498A of IPC is also set aside. Consequently, the accused/revisional petitioner is acquitted for the offence punishable under Section 498A of IPC. The bail bond executed by the accused stand cancelled. If the petitioner/accused has deposited any fine amount, the same is ordered to be refunded in favour of the petitioner/accused on proper identification.