Mabasha S/O Late Mastan Sab vs The State Of Karnataka
2022 Latest Caselaw 3099 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 23RD DAY OF FEBRUARY 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ


                CRL.A.NO.2538 OF 2013

BETWEEN

MABASHA
S/O LATE MASTAN SAB
AGE: 36 YEARS, OCC: ROD BENDING WORK
R/O: COWAL BAZAAR, BELLARY
                                        ...APPELLANT
(BY SRI.ASHOK R KALYANASHETTY, ADVOCATE)

AND

THE STATE OF KARNATAKA
REPRSENTED BY ITS PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
CIRCUIT BENCH, DHARWAD
                                        ...RESPONDENT
(BY SRI.VIJAY S. KALASURMATH, HCGP)

      THIS CRIMINAL APPEAL IS FILED U/SEC. 374 OF THE
CR.P.C. SEEKING TO CALL FOR THE RECORDS AND SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE,
BELLARY IN S.C.NO.12/2012 DATED 11.01.2013 INCLUDING
THE SENTENCE OF FINE AND SET THE        APPELLANT AT
LIBERTY.

      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                               2




                          JUDGMENT

The judgment and order dated 11.01.2013,

passed by the Court of II Addl. Sessions Judge,

Ballari, in SC No.12/2012, convicting the

accused for the offence punishable under

Sections 498A and 306 of IPC is under challenge

in this appeal.

2. Heard the learned counsel for the

appellant, learned HCGP for respondent-State

and perused the evidence and material on

record.

3. Brief facts of the prosecution case are

that the first informant Smt.Naseema Banu W/o

Late Rahamatthulla has four daughters and two

sons. Her third daughter by name Saheera was

given in marriage to the accused about 5 years

prior to the date of incident. In their wedlock,

they have a son aged about three years. For

sometime after the marriage, the couple lived

happily. Thereafter, the accused started giving

physical and mental harassment on the ground

that she does not know the household work etc.

The deceased was informing her mother about

the cruelty meted to her and telling that the

accused was not bringing ration to the house.

Accused was advised by the complainant and her

children. However, for sometime, deceased was

looked after properly by the accused and then he

once again started subjecting her to physical and

mental harassment. About one and half years

prior to the date of incident, the deceased came

to her parental house and stayed there and since

accused promised that he will look after her

properly, she was sent back to her matrimonial

house, about 4 months prior to the date of

incident. On 30.12.2019, the son of the

deceased aged about 3 years got fever and

regarding giving treatment to him, the couple

quarreled with each other. In this connection,

complainant and her children went to the house

of accused and advised him and told that they

will take his son to the hospital, if he does not

show him to a doctor. On 31.12.2009, at about

11.30 a.m., the brother of the accused by name

Shekshavali (PW.5) informed the first informant

that her daughter has committed suicide.

4. It is the case of prosecution that on

account of the physical and mental harassment

given by the accused, the deceased has

committed suicide by hanging in her matrimonial

house and therefore, he has committed offences

punishable under Sections 498A and 306 of IPC.

5. In order to bring home the guilt of the

accused, the prosecution has examined in all 14

witnesses and got marked Ex.P1 to P10 and

material object no.1.

6. The learned Sessions Judge has held that

deceased Smt. Saheera W/o accused was

subjected to physical and mental cruelty which is

established not only from the evidence of PW.s 1

to 3, but also from the evidence of PWs.4 and 13

coupled with Ex.P.2(Postmortem report) and

Ex.P5(Inquest mahazar).

7. The accused was sentenced to undergo

rigorous imprisonment for three years and to pay

fine of Rs.5,000/- and in default of payment of

fine amount, to undergo rigorous imprisonment

for six months for the offence punishable under

Section 498A of IPC.

8. Accused was sentenced to undergo

rigorous imprisonment for seven years and to

pay a fine of Rs.5,000/- and in default of

payment of fine to undergo rigorous

imprisonment for one year for the offence

punishable under Section 306 of IPC.

9. Amongst the prosecution witnesses,

PWs.5 and 6 namely brother and sister of the

accused and PWs.9 and 10 neighbors of the

accused as well as PW.11 panch witness for spot

mahazar(Ex.P8) have turned hostile. The said

witnesses have denied having given any

statement before the Police. Their evidence does

not help the prosecution in any manner.

10. PW.1 is the first informant and she is

the mother of the deceased. PWs.2 and 3 are

the sister and brother of the deceased

respectively.

11. PW.4 is the doctor who conducted

postmortem examination. Postmortem report is

marked as Ex.P2.

12. PWs.7 and 8 are the panch witnesses

to the inquest mahazar-Ex.P5.

13. PW.12 is the Police constable who

carried the FIR to the jurisdictional Court. The

FIR is marked as Ex.P9.

14. PW.13 is the Taluka Executive

Magistrate who conducted inquest panchanama,

which is marked as Ex.P5.

15. PW.14 is the Police Sub-inspector who

received the complaint from PW.1 and registered

the case in Crime No.256/2009 at Cowlbazar

Police Station, Ballari and conducted

investigation and filed charge sheet.

16. According to the complainant-PW.1,

the mother of the deceased, for about one year

after the marriage, accused looked after her

daughter properly. Thereafter, he started

quarreling with her and used to assault her for

one or the other reason. This was informed to

her by her daughter. PW.1 has stated that, she

and her children advised the accused. After the

child was born, for about one year her daughter

stayed in her house and refused to go to her

matrimonial house on the ground that accused

was assaulting her. Thereafter, at the request of

the accused, she sent her daughter along with

the accused. She has stated that since the child

was suffering from fever, accused and the

deceased quarreled with each other and

therefore, she went and told the accused that

she will show the child to a doctor. On the next

day, she was informed that her daughter has

committed suicide.

17. PW.2 viz., sister of the deceased has

stated that the accused was ill-treating the

deceased on the ground that she was not

knowing how to cook properly and after delivery,

for about five months, the deceased was staying

with her mother and since the accused requested

to send her back saying that he will look after

properly, deceased was sent back to her

matrimonial house. Thereafter, for a few days,

they were living cordially. Since, the child got

fever, they quarreled with each other and her

mother went and told that they should show the

child to a doctor, otherwise, she will take the

child to a doctor. On the next day, her sister

committed suicide.

18. PW.3-borther of the deceased has

stated that accused used to assault the deceased

whenever she complained that there is no ration

in the house and in this regard, panchayath's

were held. Since, accused requested to send her

back saying that he will look her properly, she

was sent with him.

19. According to PW.1, accused was

quarreling with the deceased for one or the other

reason and he was assaulting her. In the cross-

examination, she has stated that her daughter

used to inform her that the accused was

quarreling and in this regard panchayath's were

held. According to PW.2, accused was

quarrelling with the deceased on the ground that

she does not know how to cook properly. PW.3

has stated that the accused used to assault

deceased whenever she was complaining that

there was no ration in the house. There is no

consistency in the evidence of PWs.1 to 3, with

regard to the physical and mental harassment

given by the accused to the deceased. PW.3 in

his chief examination has stated that on two

occasions panchayaths were held at Cowlbazar

police station. PW.1 in the cross examination has

stated that on three occasions panchayaths were

held and on one occasion, they have gone to the

Police Station. However, the prosecution has not

examined any witness who participated in the

panchayath and even PW.14 is silent about any

panchayath held at Cowlbazar Police station as

deposed by PW.3.

20. Cause of death is on account of

asphyxia as a result of hanging, which is not in

dispute. It is the specific case of the prosecution

that a day prior to the deceased committing

suicide, the child of the couple fell ill and in this

regard, deceased as well as the accused

quarreled with each other. In this connection,

PW.1 went to the house of accused and advised

both of them and on the very next day, deceased

committed suicide. Therefore, from the said

material on record, it appears that the said

incident was the reason for the deceased to take

the extreme step. Even accepting the evidence

of PW.s 1 to 3 that the accused had quarreled

with the deceased on the ground that she was

not knowing how to cook properly and not

knowing household work etc., however, the said

evidence is not sufficient to come to the

conclusion that the accused has subjected the

deceased to cruelty of such a nature which has

led her to take the extreme step.

21. The trial Court has taken into

consideration the postmortem report at Ex.P2

and inquest mahazar at Ex.P5 and has come to

the conclusion that the burnt anti-mortem

injuries found present over the back of neck

gives rise to the Court without any doubt to

believe the evidence of mother, sister and

brother of the deceased, that she was subjected

to physical and mental cruelty by her husband

during her matrimonial stay with him after her

marriage.

22. The trial Court has totally misguided

itself in coming to the above conclusion, as it is

nobodies case that any such injury was caused

to the deceased by the accused. It is relevant to

see that neither the doctor who conducted

postmortem examination nor the Tahasildar who

conducted inquest mahazar has deposed about

the said injury. It is not the case of prosecution

that the accused has caused any such injury to

the deceased, and PWs.1 to 3 have not deposed

about the same nor have they deposed that the

deceased at any point of time complained to

them about the accused causing such injury to

her. It is relevant to see that in the postmortem

report-Ex.P2, it is not stated that the two peanut

size burnt wounds present over the back of the

neck is an anti-mortem injury. Even PW.4 doctor

who conducted autopsy has not spoken about the

said injury. Though, the prosecution has

examined PWs.9 and 10, to prove that accused

was subjecting the deceased to physical and

mental cruelty, however, both the said witnesses

have turned hostile. As observed supra, a day

prior to deceased committing suicide, the couple

quarreled with each other on account of their

son falling ill. In this connection, PW1 has

deposed that she went and advised stating that

if the accused failed to show the child to a

doctor, she will take the child to the hospital.

The said quarrel took place just a day prior to

the incident in question. The same is not

sufficient to hold that the deceased was meted

with cruelty. Hence, it cannot be held that the

prosecution has been able to establish that the

deceased died of any such cruelty meted to her

by the accused or that the accused has

intentionally aided or abetted her to commit

suicide.

23. For the foregoing reasons, the

conviction and sentence passed by the trial

Court is not sustainable. Accordingly, the

following:

ORDER

Appeal is allowed.

             Judgment        and     order            dated

      11.01.2013          passed    by      II        Addl.

      Sessions        Judge,         Ballari              in

S.C.No.12/2012 is hereby set aside.

Accused/appellant is acquitted of

the offence punishable under Sections

306 and 498A of IPC.

His bail bond stands cancelled.

The fine amount if any deposited

shall be returned to the accused.

(Sd/-) JUDGE HMB