Sri Manju @ Manjunath D M vs State By Nanjangud Rural Police
2022 Latest Caselaw 3395 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

       CRIMINAL REVISION PETITION NO.518/2012

BETWEEN:

SRI MANJU @ MANJUNATH D.M.,
AGED ABOUT 31 YEARS
S/O KUSAIAH
RESIDING AT DEVARASANAHALLI
VILLAGE, NANJANGUD TALUK
MYSURU DISTRICT.                          ...PETITIONER

            (BY SRI NAGARJUNA J., ADVOCATE FOR
       SRI C.M.JAGADEESH, ADVOCATE [THROUGH V.C.])

AND:

STATE BY
NANJANGUD RURAL POLICE, NANJANGUD
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU.                             ...RESPONDENT

                (BY SRI K.S.ABHIJITH, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE
PRL. CIVIL JUDGE (JR.DN.) AND JMFC, NANJANGUD IN
C.C.NO.922/2008 DATED 07.10.2011 AND ALSO JUDGMENT
PASSED BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE,
MYSURU IN CRL.A.NO.136/2011 DATED 22.03.2012.
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     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

2. The factual matrix of the case of the prosecution is

that this petitioner being the husband of P.W.2, subjected her for

both mental and physical cruelty without providing food and

clothing and also gave harassment both physically and mentally.

It is also the allegation that on 16.12.2007 at about 5.30 p.m,

this petitioner picked up quarrel and beaten her with his hands

and kicked on her abdomen and all the accused persons have

threatened to kill her and thereafter, committed the alleged

offence. Immediately, the injured was taken to the hospital

where the police received the information through her mother

and recorded the statement of witnesses, conducted spot

panchanama and after completion of investigation, filed the

charge-sheet.

3. The prosecution, in order to prove the case against

the petitioner and other two accused persons, who have been

arraigned, relied upon the evidence of P.Ws.1 to 15 and also the

documents Exs.P1 to P5 and the defence have not led any

evidence and also not marked any documents.

4. The Trial Court, having appreciated both oral and

documentary evidence placed on record, convicted the present

petitioner and acquitted accused Nos.2 and 3 and sentenced the

petitioner to undergo rigorous imprisonment for three years and

to pay fine of Rs.10,000/-. In default, to undergo six months

simple imprisonment for the offence punishable under Section

498-A of IPC. He was further sentenced to undergo rigorous

imprisonment for two years and to pay fine of Rs.10,000/- and

in default, to undergo simple imprisonment for six months for

the offence punishable under Section 506 of IPC and both the

sentences shall run concurrently.

5. Being aggrieved by the said judgment and sentence,

the petitioner filed the appeal in Crl.A.No.136/2011 and the

Appellate Court also, on re-appreciation of the evidence available

on record, vide order dated 22.03.2012, dismissed the appeal in

coming to the conclusion that the judgment and conviction of the

Trial Court does not requires any interference. Being aggrieved

by the same, the present petition is filed by the revision

petitioner.

6. The main contention of the learned counsel for the

revision petitioner is that, both the Courts have failed to consider

the contradictions in the evidence, particularly, the evidence of

P.Ws.1 to 3 and 9. The evidence of P.Ws.1 to 4 clearly reveal

that the marriage of the petitioner with P.W.2 was a love

marriage and P.Ws.1, 3 and 4 and other relatives have not

attended the marriage and thereafter, the petitioner was living

with P.W.2 in his house. These witnesses have not visited the

house of the petitioner till the alleged incident on 16.12.2007.

The Trial Court and also the Appellate Court accepted the

evidence of P.W.2 regarding panchayath was held and the P.W.9

is none other than the grand-mother of P.W.2 and in her cross-

examination, she categorically admits that a week prior to the

alleged incident on 16.12.2007, P.W.2 came to the house of her

parents and at that time, she was four months pregnant. P.W.2

has introduced totally a new story in the trial and she has made

lot of improvements in her evidence contradictory to the

prosecution case itself and both the Courts have failed to

consider the same and the Trial Court erroneously convicted the

petitioner and the Appellate Court confirmed the same. The

counsel also would submit that P.W.10 is the mother, P.W.2 is

the victim, P.W.3 is the brother and P.W.4 is the father of the

victim according to the prosecution. He would further submit

that there are lot of contradictions in the evidence of witnesses

and they are relative witness and their evidence not corroborates

with any of the witnesses.

7. Per contra, learned High Court Government Pleader

appearing for the respondent-State would submit that the

incident has taken place at 6.00 p.m. in the house of this

petitioner on 16.12.2007 and within a span of two to three

hours, the victim went to the hospital and given the history

stating that this petitioner kicked on her abdomen. As a result,

miscarriage has taken place. He would also submit that in the

wound certificate, specific mentioning is made regarding injury

caused to the victim. He would further submit that P.W.8 is the

independent witness, who is a part of panchayath and P.W.9-

grand-mother, who also witnessed the incident. The doctor, who

has been examined as P.W.12 has spoken with regard to the

assault is concerned.

8. Having heard the respective counsel and also on

perusal of the material available on record, the point that would

arise for consideration of this Court are:

(i) Whether both the Courts have committed an error in not considering the material available on record and passed any perverse order and the order passed by both the Courts suffers from illegality and propriety of the order?

9. Having heard the respective counsel and also on

perusal of the material on record, I have already pointed out

that the prosecution, in order to prove the guilt of the petitioner

herein, relied upon the evidence of P.Ws.1 to 15 and the

documents at Exs.P1 to P5 and the defence has not led any

evidence. On perusal of the evidence available on record,

particularly, the evidence of P.Ws.1 to 4, no doubt, they are

relatives i.e., mother, father and brother of the victim, the Court

has to take note of the incident of assault. According to the

prosecution, the incident has taken place on 16.12.2007 at 6.00

p.m.

10. The victim-P.W.2, in her evidence categorically

deposed that this petitioner was looking after her for a period of

one year and when she became pregnant for second child, she

was subjected to both mental and physical cruelty. As a result,

the pregnancy got aborted. When she was suffering from severe

stomach ache on account of abortion and when she requested to

take her to a doctor, instead of taking her to a doctor, this

petitioner kicked on her stomach within three days of the

abortion of pregnancy. She was subjected to cross-examination.

In the cross-examination, as pointed out by the learned counsel

for the revision petitioner, no doubt, it is elicited in the evidence

that this petitioner not subjected the victim for any dowry

harassment. It is also elicited that, prior to marriage, both of

them fell in love and panchayath was held and marriage was

performed and she also admits that her parents and brother

were not interested in performing the marriage of P.W.2 with

this petitioner. In the cross-examination, it is elicited that, at

the time of giving the complaint and also in the chief evidence,

she has stated that three days prior to the incident, she was

aborted and she was subjected to assault subsequent to the

abortion. It is also elicited that she cannot tell on what date her

husband put chappal on her mouth and assaulted with coconut

shell and the said fact was also not informed to her parents but,

she claims that the same was informed to the elders of the

village, but she cannot tell the date.

11. Other than the witness P.W.2, P.W.1 is the mother,

P.W.3 is the brother and P.W.4 is the father. The prosecution

mainly relied upon the evidence of P.Ws.8 and 9. P.W.8 in his

evidence says that he is the elder of the village and subsequent

to the marriage, frequent galatta has taken place and he was a

part of the panchayath and they have advised not to quarrel with

each other and they should lead good life and also says that he

was a part of panchayath three times. In the cross-examination,

he admits that he cannot tell on what date the panchayath was

held. But, claims that family members of the P.W.2 have told

him to make panchayath. It is suggested that he was not a part

of the panchayath and same was denied.

12. P.W.9 is the grand-mother of P.W.2 and she also

reveals that incident has taken place on 16.12.2007 at 6.00 p.m.

and this petitioner kicked on her stomach. But, in the cross-

examination, she admits that she was in the house and when

she went to the spot, already galatta was over and admits that

P.W.2 is her grand-daughter. P.W.9 also admits that panchayath

was held prior and the marriage was performed after panchayath

only. It is suggested that, after the marriage, no panchayath

was held and she cannot tell on what date, panchayath was held

but, claims that panchayath was held five times.

13. The prosecution also mainly relied upon the evidence

of doctor, P.W.12, who gave the Wound Certificate in terms of

Ex.P4. On an examination he found pain in the lower part of the

abdomen and referred the patient to go to Cheluvamba Hospital.

When any person assaults with hand and kicks on the abdomen,

the injuries mentioned in the Wound Certificate will be

happened. In the cross-examination, a suggestion was made

that if any person falls on the hard surface, these types of

injuries would be caused. The prosecution examined P.W.14, he

is an Investigating Officer, who conducted the investigation and

filed the report.

14. Having heard the respective counsel and on an

appreciation of the material available on record both the Trial

Court as well as the Appellate Court and also in keeping the

contentions of the revision petitioner before this Court, the Trial

Court in paragraph Nos.11 and 12 and also taking into note of

the injuries mentioned in Ex.P4, there was no any delay in taking

her to the Hospital. On the same day, she was taken to the

hospital within three hours and the medical evidence also

supports the case of the prosecution. The Doctor, who has

deposed as P.W.12, reiterates that on kicking the stomach, the

said injury could be caused. No doubt, in the cross-examination,

it is elicited that if a person falls on the hard surface, the said

type of injury could be caused. The Court has to take note of

the history given in Ex.P4 - Wound Certificate and also taking

into note of the injured was taken to the Hospital within a span

of three hours of the said incident and also taken note of the

nature of injuries mentioned in Ex.P4 and the medical evidence

corroborates the evidence of PWs.1 to 4.

15. In the cross-examination of P.W.4, nothing is elicited

and the same has been considered by the Trial Court,

particularly, the evidence of P.W.2 in paragraph No.14, the

evidence of the Doctor in paragraph No.23, the evidence of

P.W.6 in paragraph No.19 and the evidence of P.W.8-Panchayath

Member in paragraph No.20, who had participated in the

Panchas, subsequent to the differences arise between the

petitioner as well as his wife and rightly comes to the conclusion

that the prosecution has proved the case against the petitioner

herein.

16. The Appellate Court also on re-appreciation of the

evidence taken note of the evidence of P.W.2 and discussed in

paragraph No.14 that she was subjected to assault and mainly

comes to the conclusion that the evidence of P.W.8 corroborates

the prosecution version, in paragraph No.11 discussed the same.

In paragraph No.10 also re-appreciate the evidence of P.W.8,

who is the Panchayathdar regarding subjecting P.W.2 for cruelty

and harassment and also he categorically says that they have

advised both the parties to stay happily. In spite of that, the

same was continued. P.W.5 also spoken with regard to dragging

P.W.2 out of the house to the street i.e., 1½ years back. The

Appellate Court on re-appreciation of the evidence available on

record in paragraph Nos.23, 24 and 25, taken note of the

evidence of prosecution corroborating each other subjecting her

for both cruelty and for causing life threat and also taken note of

the punishment and sentence awarded by the Trial Court. Having

considered the same comes to the conclusion that there are no

grounds to interfere with the orders of the Trial Court.

17. Having heard the respective counsel and also the

reasoning given by the Trial Court, the very contention of

learned counsel appearing for the petitioner is that there are

contradictions in the evidence of PWs.1 to 4 as well as PWs.8

and 9 and the incident was taken place on 16.12.2007. The

witnesses were examined in the year 2009, after lapse of two

years. When such being the case, the minimum contradictions

bound to happen and the contradictions which have been elicited

from the mouth of witnesses have not goes to the very route of

the prosecution case. Apart from the evidence of P.W.2, P.W.8,

who is an independent eyewitness, supports the case of the

prosecution though P.Ws.1, 3 and 4, are the relatives, P.W.9 is

the grand mother and the medical evidence corroborates with

the oral testimony of P.W.2. When such being the case, when

there is no any infirmity in appreciation of both oral and

documentary evidence placed on record by both the Trial Court

as well as the Appellate Court. The scope of the revision is very

limited and only this Court can reverse the findings of the Trial

Court as well as the Appellate Court, when the findings are

perverse. Hence, I do not find any such perverse and the orders

not suffer from any illegality and propriety. When such being

the case, it is not a fit case to allow the Revision Petition and set

aside the order of conviction and sentence.

18. In view of the discussions made above, I pass the

following:

ORDER

The Revision Petition is dismissed.

Sd/-

JUDGE

ST/cp*