Ambanna S/O. Mutturaj Ambamath vs The State Of Karnataka
2022 Latest Caselaw 228 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH
        DATED THIS THE 06TH DAY OF JANUARY 2022
                         BEFORE
      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

                 CRL.A.NO.2835 OF 2013

BETWEEN

AMBANNA,
S/O.MUTTURAJ AMBAMATH,
AGED ABOUT 29 YEARS,
OCC. COOLIE,
R/A.HOSABANDIHARLAPUR/
KORAMMA CAMP,
PO. BASAVANADURGA
GANGAVATI TALUK,
KOPPAL DISTRICT.
                                          ...PETITIONER
(BY SRI.SRINAND.A.PACHCHAPURE, ADVOCATE AND
SRI.RAJENDRA.R.PATIL, ADVOCATE)

AND

THE STATE OF KARNARTAKA
BY MUNIRABAD POLICE STATION,
KOPPAL DISTRICT
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA, DHARWAD.
                                              ...RESPONDENT
(BY SRI.RAMESH B. CHIGARI, HCGP)

      LED U/S 374(2) OF CR.P.C., SEEKING TO CALL FOR THE
RECORDS IN S.C.NO.79/2012 ON THE FILE OF THE DISTRICT
AND SESSIONS JUDGE, KOPPAL AND SET ASIDE THE ORDER OF
CNVICTION AND SENTENCE DATED 27.11.2013 PASSED BY HIM
FOR THE OFFENCES P/U/S 498-A AND 306 OF IPC, AGAINST
THE APPELLANT AND ACQUIT HIM.
                                    2




     THIS PETITION COMING ON FOR FURTHER HERAING
THIS DAY, THE COURT MADE THE FOLLOWING:


                                 ORDER

This appeal is preferred by the accused

against the judgment and order dated 27.11.2013

passed by the Court of District and Sessions

Judge, Koppal, in S.C.No.79/2012, where by he is

convicted and sentenced for offences punishable

under Sections 498-A and 306 of IPC.

2. For the offence punishable under

Section 498-A of IPC, accused is sentenced to

undergo simple imprisonment for two years and to

pay fine of Rs.2,000/- and in default of payment

of fine, to further undergo simple imprisonment

for three years.

3. For the offence punishable under

Section 306 of IPC, the accused is sentenced to

undergo imprisonment for four years and to pay a

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

fine, to undergo further simple imprisonment for

three months.

4. Heard the learned counsel for appellant

and learned HCGP for respondent/ State and

perused the materials and evidence on record.

5. Brief facts of the prosecution case are

that, deceased Padma is the wife of the accused.

They liked each other and got married about four

years prior to the date of incident at Ishwar

Temple, Chandragiri village near Tirupathi in

Andhra Pradesh. For about two years they lived at

Koramma Camp and thereafter accused left Padma

at her parental home stating that till he takes her

back, she should not be sent to matrimonial home.

On enquiry by the complainant, she revealed to

her family members that accused used to treat her

with cruelty. For about one year she stayed in her

parental home. Since she was being subjected to

cruelty by the accused she was not sent with him.

However about six-seven months before lodging

the complaint accused came and requested the

complainant to send his wife stating that both of

them will stay at Bandiharlapur where the

complainant was staying. They started residing in

Bandiharlapur in a rented house, however the

accused continued to ill-treat the deceased. About

three-months prior, the accused started residing

in a rented house belonging to one Mardansab

(PW.4). Accused continued to torture the

deceased. He was assaulting her and not providing

her proper food. He was addicted to alcohol and

giving her physical and mental torture. Unable to

bare the torture, on 06.06.2012 at about 3:30 pm,

she committed suicide in the kitchen by hanging

using a vale.

6. Charges were framed against the

accused for offences punishable under Sections

498-A and 306 of IPC. In order to bring home the

guilt of the accused, the prosecution got examined

PWs.1 to 10 and got marked Ex.Ps.1 to 11 and

MO.1

7. Learned Sessions Judge after

appreciating the oral and documentary evidence

on record convicted the accused for the charged

offences and passed sentence against him as

noted Supra.

8. It is the contention of the learned

counsel for the appellant that there is no sufficient

evidence adduced by the prosecution to establish

that the accused was harassing the deceased both

physically and mentally and the learned session

Judge relying upon the interested testimony of the

prosecution witnesses has erroneously convicted

the accused. He has contended that the allegations

that the deceased was being ill-treated by the

accused and he was subjecting her to physical

cruelty etc., is not at all proved. He contends, that

the Post Mortem Report does not show any injuries

sustained by the deceased. It is his further

contention that, merely because the death has

taken place within seven years of marriage,

presumption under Section 113-A of Evidence Act

cannot be drawn, unless the prosecution

establishes from the over all circumstance that the

deceased was being subjected to cruelty and

harassment and in the case on hand the

prosecution has failed to establish beyond

reasonable doubt that the deceased was being

subjected to such cruelty by the accused, which

has led her to commit suicide. Hence, he contends

that the ingredients of Section 306 of IPC are not

made out. He contends that the owner of the

house wherein deceased and accused were living

together, has not supported the case of

prosecution and therefore on the basis of

testimony of the relatives of the deceased, the

trial Court ought not to have convicted the

accused. It is contended that the entire approach

of the trial Court convicting and sentencing the

accused has resulted in miscarriage of justice.

9. Learned HCGP has contended that the

deceased has committed suicide within seven

years of her marriage and there is sufficient

evidence to show that the deceased has been

subjected to cruelty by the accused. He contends

that merely because PWs.1, 8 and 9 are the

relatives of the deceased, their evidence cannot be

brushed aside. He contends that the trial Court

having appreciated the entire facts and

circumstances and the evidence adduced by the

prosecution, has rightly convicted the accused for

the charges framed. Accordingly, he has sought to

dismiss the appeal.

10. The complaint is lodged by the mother

of the deceased, who is examined as PW.1.

Complaint is got marked as Ex.P.1. She has stated

that the marriage of her daughter with the

accused is a love marriage and after the marriage

her daughter was residing in her husband's house

at Koramma Camp. Two years later, accused left

her in her parental home and thereafter did not

return for about one year. After one year, accused

came and asked the deceased to accompany him

but, she refused since he was not looking after her

properly. On enquiry with her daughter, she

informed that accused used to consume alcohol

and beat her. Later accused took the deceased and

both of them started residing in a separate house

near the house of the complainant. The deceased

was informing her that the accused was not

providing her proper food. Even after conducting

the panchayat, the accused continued to ill-treat

the deceased. She has stated that, after about

three months the accused and deceased started to

reside in a rented house. Even there the accused

continued to ill-treat her daughter. She has

further stated that the deceased informed her that

the accused had tied her up and assaulted her. On

the same day at about 2:00 pm accused came and

informed that her daughter has committed suicide

by hanging.

11. PW.8 is the elder sister of the deceased

and PW.9 is the younger brother of the deceased.

Both of them have stated that the accused was ill-

treating the deceased. They have stated that the

deceased used to inform them that the accused

used to consume alcohol and assault her and on

the date of incident she informed them that the

accused tied her and assaulted her.

12. PW.4 is the owner of the house where

the accused and deceased were living, at the time

of incident. He has not supported the case of

prosecution.

13. PW.5 has stated that accused used to

consume alcohol and he was picking up quarrel

with the deceased and in this connection he was

being advised by him and others and inspite of

their advice, he did not mend his ways. In the

cross examination, he has stated that he is

personally not aware of the relationship of the

accused and deceased but he was informed about

it by the parents of the deceased.

14. In the cross examination it is elicited

from PW.1 that since the accused and deceased

married against her wish, she was angry with the

accused. It is therefore contended by the learned

counsel for the appellant that PW.1 was nurturing

ill-will against the accused and she has filed a

false complaint.

15. PW.1 in her cross examination has

denied that she used to torture the deceased since

she married the accused against the wish of her

parents.

16. The learned counsel for appellant would

draw the attention of the Court to the cross

examination of PW.8 to contend that according to

PW.8 the deceased sustained some injuries on

account of the assault by the accused. He

contends that no such injuries are noticed on the

dead body, while drawing the inquest mahazar

Ex.P.5 or in the Post Mortem Report at Ex.P.2.

17. According to PWs.1, 8 and 9, on the

date of incident the accused tied the hands of the

deceased and assaulted her, as told to them by

the deceased. However, as contended by the

learned counsel for the appellant, there are no

external injuries noticed on the dead body either

in the inquest report or in the postmortem report

to substantiate that on the date of incident,

deceased was assaulted by the accused. However,

from the evidence and material on record,

prosecution has been able to establish that

deceased was being subjected to cruelty by the

accused. Merely because PWs.1, 8 and 9 are

closely related to the deceased, their evidence

that deceased was being harassed by the accused

cannot be disbelieved or discarded.

18. The incident has taken place within

seven years of the marriage of deceased.

However, to draw a presumption under Section

113(A) to hold that the accused has abetted the

deceased to commit suicide, the prosecution has

to show having regard to all other circumstances

of the case that such suicide has been abetted by

the accused. From the over all facts and

circumstances of the case, it cannot be said that

there was any abetment by the accused or that he

intentionally aided or abetted the deceased to

commit suicide.

19. For the foregoing reasons, this Court is

of the view that the prosecution has been able to

establish the guilt of the accused for the offence

punishable under Section 498(A) of IPC and the

evidence is not sufficient to convict the accused

for offence punishable under Section 306 of IPC.

20. It is submitted by the leaned counsel for

appellant that during the pendency of this appeal,

the appellant got married and he has a child born

on 22.01.2021. A memo is filed to that effect,

enclosing the Mother Card etc., of appellant's wife.

21. The appellant was in judicial custody

from 11.06.2012 till 08.01.2013. After his

conviction, he was taken into custody on

27.11.2013. Sentence was suspended by this

Court on 09.12.2013. It is stated that he was

released from jail after 15 days, on furnishing

surety. In total, appellant was in custody for

nearly 8 months. The incident is of the year 2012.

In the above facts and circumstances, the period

already undergone by the appellant in judicial

custody for the offence punishable under Section

498-A of IPC will meet the ends of justice. Hence,

the following:

ORDER

Appeal is allowed in part.

Judgment and order dated

27.11.2013 passed by the District and

Sessions Judge, Koppal in SC

No.79/2012 convicting and sentencing

the accused/appellant for the offence

punishable under Section 306 of IPC is

hereby set aside.

The conviction of the appellant for

the offence punishable under Section

498-A of IPC is hereby confirmed.

The sentence imposed for the

offence under Section 498-A of IPC is

modified and he is sentenced to undergo

imprisonment for the period already

undergone and he shall pay a fine of

Rs.10,000/-(Rupees Ten thousand only)

including the deposit already made if

any, which shall be deposited before the

trial Court within ten weeks.

In default of payment of fine, he

shall undergo simple imprisonment for

three months.

Sd/-

JUDGE

PJ / HMB