Vinayak S/O Badeppa vs The State Of Karnataka
2022 Latest Caselaw 11018 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

        DATED THIS THE 21ST DAY OF JULY, 2022

                        BEFORE

           THE HON'BLE MRS.JUSTICE M.G. UMA

         CRIMINAL APPEAL NO.200070/2016


BETWEEN:

VINAYAK S/O BADEPPA
AGE:28 YEARS, OCC:
R/O MADDIPET, RAICHUR
                                          ... APPELLANT

(BY SRI: MAHADEV S PATIL, ADVOCATE)

AND:

THE STATE OF KARNATAKA
THROUGH CPI EAST CIRCLE P.S
RAICHUR
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
AT KALABURAGI BENCH
                                       ... RESPONDENT

(BY SRI: GURURAJ V HASILKAR, HCGP)
     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO CALL FOR RECORDS IN
SESSIONS CASE NO.31 OF 2009 ON THE FILE OF THE
DISTRICT AND SESSIONS JUDGE AT RAICHUR, PERUSE THE
SAME, ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT,
ORDER OF CONVICTION AND SENTENCE DATED 12.04.2016
AND SET THE APPELALNT-ACCUSED AT LIBERTY IN THE
INTEREST OF JUSTICE, WHEREIN THE APPELLANT-ACCUSED
NO.1 SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
FOR A PERIOD OF ONE YEAR AND TO PAY A FINE OF
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RS.5,000/- FOR THE OFFENCE PUNISHABLE UNDER SECTION
498A OF IPC, IN DEFAULT OF PAYMENT OF FINE HE SHALL
UNDERGO FURTHER SIMPLE IMPRISONMENT FOR A PERIOD
OF 3 MONTHS, ACCUSED NO.1 IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF TWO YEARS
AND TO PAY A FINE OF RS.5,000/- FOR THE OFFENCE
PUNISHABLE UNDER SECTION 306 OF IPC, IN DEFAULT OF
PAYMENT OF FINE HE SHALL UNDERGO FURTHER SIMPLE
IMPRISONMENT FOR A PERIOD OF 6 MONTHS.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 14.06.2022, COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                          JUDGMENT

The appellant being accused No.1 is before this Court

impugning the judgment of conviction and order of sentence

dated 12.04.2016 passed in SC No.31 of 2009 on the file of

learned Principal District and Sessions Judge, Raichur,

(hereinafter referred to as 'the Trial Court' for brevity),

convicting him for the offence punishable under Sections 498A

and 306 of Indian Penal Code (for short 'the IPC'), and

sentencing to undergo rigorous imprisonment for a period of

one year and to pay a fine of Rs.5,000/- for the offence

punishable under Section 498A of IPC and sentencing to

undergo rigorous imprisonment for a period of two years and

to pay a fine of Rs.5,000/- for the offence punishable under

Section 306 of IPC, with default sentences, while acquitting

him and accused Nos.2 to 4 for the offence punishable under

Section 302 of IPC.

2. Brief facts of the case are that, PW7 - Meenakshi,

the mother of the deceased lodged the first information with

Kanchanabagh Police Station, Hyderabad on 13.07.2008

against the accused alleging commission of the offences

punishable under Sections 498A and 302 read with Section 34

of IPC. It is stated that the marriage of her daughter i.e.,

deceased was engaged with the accused and at the time of

engagement, accused had demanded an amount of

Rs.50,000/-. Accordingly, the informant had paid Rs.50,000/-

Subsequently, the informant came to know that the accused

is HIV positive and therefore, the marriage talks were broken.

However, the accused induced the deceased and emotionally

blackmailed her, as a result of which, the accused took her to

Mantralaya and both of them have married. After the

marriage, the accused and his family members started ill-

treating the deceased on the ground that she does not know

cooking and was not doing any household work. They also

used to insist her to bring money and other house hold

articles and they were ill-treating her both physically and

mentally.

3. The informant stated that on 12.07.2008, the

deceased had called her over phone and informed that she

sustained burn injuries and requested the informant to come.

Immediately, the phone got disconnected. Even when the

informant tried to talk with her daughter, the family members

of the accused had not allowed the deceased to talk with her.

Immediately, the informant went to Hyderabad and visited

the Apollo Hospital, where the injured was taking treatment.

She learnt that the injured was admitted to the hospital on

12.07.2008 as she sustained burn injuries. The informant

stated that as the deceased could not tolerate the ill-

treatment meted to her by her husband and in-laws, had

attempted to commit suicide several times by drinking phenol

or by consuming sleeping pills. The accused by their conduct

have abetted the deceased to commit suicide. Therefore, she

requested the police to register the case and to initiate legal

action. Accordingly, Kanchanabagh police registered the case

in Crime No.198 of 2008 and took up investigation.

4. It is stated that not being satisfied with the

treatment given to the injured in Apollo Hospital at

Hyderabad, she got discharged and was shifted to

J.J.Hospital, Mumbai. In spite of getting treatment, the

injured succumbed to the burn injuries on 31.07.2008.

Thereafter, ADR was registered at J.J.Margh Police Station,

Mumbai. It is stated that FIR in Crime No.198 of 2008

registered at Kanchanabagh Police Station, Hyderabad and

the criminal case that was registered at J.J.Margh Police

Station, Mumbai were transferred to Netaji Nagar Police

Station, Raichur, where the FIR in Crime No.91 of 2008 for

the offence punishable under Sections 498A and 304 read

with Section 34 of IPC came to be registered. After

investigation, charge sheet came to be filed against accused

Nos.1 to 4 for the offences punishable under Sections 498A

and 302 read with Section 34 of IPC. Accused Nos.2 to 4 are

the family members of accused No.1, who was the husband of

the deceased.

5. The accused have pleaded not guilty for the

charges leveled against them and they claimed to be tried.

The prosecution examined PWs.1 to 24, got marked Exs.P1 to

27 and identified Mos.1 to 6 in support of its contention. The

accused have denied all the incriminating materials available

on record in their statement recorded under Section 313 of

Cr.P.C. Accused No.1 examined himself as DW1 and got

marked Exs.D1 to D6 in support of his defence.

6. The Trial Court after taking into consideration all

these materials on record, came to the conclusion that the

prosecution is successful in proving the guilt of accused No.1

for the offence punishable under Sections 498A and 306 of

IPC. Accordingly, he was convicted and sentenced as stated

above. However, the Trial Court found that the prosecution is

not successful in proving the guilt of accused Nos.1 to 4 for

the offences punishable under Section 302 of IPC and it has

not proved the guilt of accused Nos.2 to 4 for the offences

punishable under Section 498A of IPC. Accordingly, accused

Nos.2 to 4 were acquitted for all the offences alleged against

them. Being aggrieved by the impugned judgment of

conviction and order of sentence passed by the Trial Court for

the offences punishable under Sections 498A and 306 of IPC,

the appellant-accused No.1 is before this Court.

7. Even though learned counsel for the appellant and

learned High Court Government Pleader were present, they

could not assist the Court even with brief facts of the case.

Perused the materials on record including the Trial Court

records.

8. In view of the above, the point that would arise

for my consideration is:

"Whether the appellant-accused No.1 has made out any grounds for interference with the impugned judgment of conviction and order of sentence passed by the Trial Court?"

My answer to the above point is in 'Affirmative' for the

following:

REASONS

9. It is the contention of the prosecution that the

appellant being accused No.1 married the deceased on

27.08.2007. On 12.07.2008, she sustained burn injuries and

was shifted to Apollo Hospital at Hyderabad. After treatment

for sometime, she was shifted to J.J.Hospital at Mumbai,

where she breathed her last on 31.07.2008. In the

meantime, FIR was registered with Kanchanabagh Police

Station, Hyderabad. Again ADR was registered at J.J.Margh

Police Station, Mumbai. Admittedly, both the reports were

transferred to Netaji Nagar Police Station, Raichur, where the

FIR in Crime No.91 of 2008 was registered against accused

Nos.1 to 4 for the offences punishable under Sections 498A

and 304 read with Section 34 of IPC. The charge sheet came

to be filed against accused Nos.1 to 4 for the offences

punishable under Sections 498A and 302 of IPC. However,

accused Nos.2 to 4 were acquitted for the offence punishable

under Section 498A of IPC. Only the appellant being accused

No.1 was convicted for the offence punishable under Sections

498A and 306 of IPC, which is impugned in this appeal.

10. To prove its contention, the prosecution has

examined PWs.1 to 24 got marked Exs.P1 to P27 and

identified Mos.1 to 6.

(a) PW1 - Mareppa and PW2 - Mehaboob are the

witnesses to the spot mahazar - Ex.P1. Both these witnesses

have not supported the case of prosecution.

(b) PW3 - Sayed Rasheed and PW10 - Hamsraj are

the witnesses to the recovery mahazar - Ex.P2. According to

the case of the prosecution, accused No.1 has given his

voluntary statement and led the police to his house and

produced the cigarette lighter, which was used in litting fire

on the deceased which was recovered in the presence of

PWs.3 and 10. Both these witnesses have not supported the

case of prosecution.

(c) PW4 - Shailaja, PW5 - Laxmi and PW9 -

Chandramma are said to be the neighbors of the deceased.

They have also not supported the case of prosecution.

(d) PW6 - Ajamat is the Assistant Sub Inspector of

Police of J.J.Margh Police Station, Mumbai who is said to have

recorded the statement of the victim while she was taking

treatment in the hospital as per Ex.P5.

(e) PW7 - Meenakshi is the mother of the deceased

who lodged the first information with Kanchanabagh Police

Station, Hyderabad against accused Nos.1 to 4. She fully

supported the case of prosecution.

(f) PW8 - Durgappa is the circumstantial witness who

deposed that he had seen the accused shifting the injured in

an auto rickshaw to the hospital.

(g) PW11 - V Niranjan Rao is the Judicial Magistrate

at Hyderabad who recorded the dying declaration of the

injured on 13.07.2008 as per Ex.P11.

(h) PW12 - Dr.Mahendra Namdev is the Medical

Officer who was working as Assistant Professor in Forensic

Medicine Department at J.J.Hospital, Mumabi and conducted

postmortem examination. He issued postmortem report as

per Ex.P12. As per this document, the deceased had

sustained 79% burn injuries and the death was due to

septicaemia due to superficial to deep burns.

(i) PW13 - Dr.Jagadish is the Medical Officer who

was working as plastic surgeon in Apollo Hospital, Hyderabad.

Witness stated that 13.07.2008 at 3.50 a.m. the injured

Hema was brought to the hospital by her husband and her

mother with the history of thermal burns around 80% and she

was admitted to the hospital. Witness stated that he had

examined the injured at about 4.00 a.m. on the same day.

(j) PW14 - Uttam is the Sub Inspector of Police of

J.J.Margh Police Station who recorded the statement of PW7

and conducted inquest mahazar.

(k) PW15 - Gururaj is the Manager of CMC, Raichur

who issued Ex.P19 i.e., house property register extract

relating to the house of the appellant where the incident had

taken place.

(l) PW16 - Pushpavathi is the translator of the

statement of PW7 after the death of injured in the hospital

from Marati to Kannada.

(m) PW17 - Kariyappa is the Assistant Engineer PWD

who drew the sketch of scene of occurrence as per Ex.P20.

(n) PW18 - Mohammed Yusuf is the Police Inspector

who received first information from PW7 and registered FIR at

Kanchanabagh Police Station, Hyderabad. Witness stated that

he arranged for recording the statement of the injured as she

had sustained 80% burn injuries. The dying declaration

recorded by PW11 is as per Ex.P23.

(o) PW19 - Mohammed Siraj is the Sub Inspector of

Police of Netaji Nagar Police Station, Raichur. Witness stated

that he received the document from J.J.Margh Police Station,

Mumbai and on the basis of the same, recorded the further

statement of PW7 and registered FIR against accused Nos.1 to

4.

(p) PW20 - S Venkat Reddy is the Police Constable of

Netaji Nagar Police Station who carried FIR to the

jurisdictional Magistrate. PW21 - Ravindra is the Circle

Inspector of Police, who conducted investigation in part.

PW22 - M Mrugandayya is the Circle Inspector of Police who

conducted investigation partially. PW23 - Mohan is the Circle

Inspector of Police, who filed charge sheet after completing

the investigation.

(q) PW24 - L K Alfred is the Head Constasble of Sadar

Bazar Police Station, who translated the document from

Telugu to Kannada, which was received from Kanchanabagh

Police Station, Hyderabad.

11. PWs.1 to 5 and 8 to 10 have not supported the

case of prosecution. The material witnesses are PWs.6, 7, 11,

12, 13 and 18, on whom the prosecution is placing reliance

and the Trial Court has based its judgment of conviction.

12. PW7 is the mother of the deceased who gave

statement before the police which was registered initially at

Kanchanabagh Police Station, Hyderabad. She also gave

statement before J.J.Margh Police Station, Mumbai after the

death of her daughter due to burn injuries and finally, she

gave statement before the Netaji Nagar Police Station at

Raichur, where the FIR was registered against accused Nos.1

to 4. This witness has fully supported the case of prosecution.

She has stated that the marriage between the accused and

her daughter had taken place on 27.08.2007. After the

marriage, her daughter was staying with the appellant. He

was treating her with cruelty and he used to abuse and beat

her. Since the deceased could not tolerate the torture and ill-

treatment by all the accused, she arranged a separate house

for the appellant and the deceased at Maddipet. In spite of

that, accused No.1 was treating her cruelly. The deceased

used to inform regarding the ill-treatment meted to her at the

hands of the appellant.

13. Witness stated that on 12.07.2008, she received

information from the deceased that she sustained burn

injuries. She came to know that the injured was shifted to

Apollo Hospital, Hyderabad. Immediately, she reached there

on 13.07.2008 and found that her daughter had sustained

80% burn injuries. The injured informed that the accused had

quarelled with her and therefore, the injured threatened the

appellant that she will commit suicide by pouring kerosene

and accordingly, she poured kerosene on her body. The

accused instead of pacifying the injured, lit fire with cigarette

lighter, as a result of which, the injured sustained burn

injuries and subsequently, died due to the same. Witness

stated that the statement of her daughter was recorded while

she was taking treatment at Hyderabad.

14. Witness was cross examined by the learned

counsel for the accused at length. The tenor of cross

examination of this witness discloses the fact narrated by her

that, her daughter married the appellant on 27.08.2007 and

that she sustained burn injuries on 12.07.2008 and was

immediately shifted to the hospital and further the injured

died due to the burn injuries sustained by her in J.J.Hospital,

Mumbai, are not disputed. Therefore, it is clear that the

deceased was married to the accused about a year earlier to

the incident and had sustained burn injuries upto 79 to 80%

and she succumbed to the same after about 18 to 19 days.

15. PW11 is the Judicial Magistrate who recorded the

statement of the injured while she was taking treatment in

Apollo Hospital on 13.07.2008. Witness stated that he

received requisition from Kanchanabagh Police Station,

Hyderabad to record the statement of the injured who was

admitted to the hospital with burn injuries. Immediately, he

rushed to the hospital and met Dr.Ramanand Giri, who was

treating the injured. The Medical Officer certified that the

injured was conscious, coherent and was in a fit state of mind

to give statement. After satisfying with the mental condition

of the injured, he put few questions in Telugu and got the

answers form the injured. He recorded the statement of the

injured in Telugu. He identified the said statement as per

Ex.P11. Witness stated that the doctor who was treating the

injured had also signed the statement certifying about her

fitness. During cross examination by the learned counsel for

the accused, witness stated that the injured, duty doctor and

nurse were also present along with him, when the statement

was recorded. Witness admitted that the injured had stated

that she herself put kerosene on her as there was quarrel

between herself and her husband who is accused No.1. He

also admitted that the injured stated that accused No.1 tried

to extinguish the fire and to save her.

16. PW12 is the doctor who conducted postmortem

examination and issued postmortem report as per Ex.P12.

PW18 is the Sub Inspector who arranged for recording the

statement of the injured as per Ex.P11 by PW11. He also

supported the case of prosecution.

17. Ex.P11 is the dying declaration of the injured

recorded on 13.07.2008, which was translated into Kannada

by PW24 - Head Constable of Sadar Bazar Police Station. As

per cross examination of PWs.11, 18 and 24, it is clear that

the accused is not disputing the correctness of the translation

which is as per Ex.P11. As per this document, the injured

stated that there was quarrel between her and her husband

who was working as Security Guard and he used to do double

duty. When he returned to the house, the quarrel took place

and she was very much upset with him and therefore, took

kerosene bottle, poured the same and lit fire with the match

stick. Immediately, her husband tried to extinguish the fire

and in that attempt, he also sustained burn injuries on both

the hands. He poured water on her and shifted to Shivam

Hospital.

18. The prosecution is mainly relying on the

statement made by the deceased which later became dying

declaration and the accused has also not disputed this

document. Now the question arises as to whether the

prosecution is successful in proving the guilt of the appellant

for the offences punishable under Sections 498A and 306 of

IPC as convicted by the Trial Court.

19. On consideration of the first information lodged by

PW7, there is reference to demand of Rs.50,000/- by the

accused and demand for house hold articles by other accused.

The other accused are all acquitted by the Trial Court.

20. Even though FIR was registered against accused

No.1 initially at Kanchanabagh Police Station, Hyderabad,

thereafter the report was registered with J.J.Margh Police

Station, Mumbai and finally FIR was registered in Netaji Nagar

Police Station, Raichur. On the basis of first information -

Ex.P8, there is absolutely no allegations that there was

demand for dowry by the appellant at any time. Even though

it is stated that there was demand of Rs.50,000/- by the

appellant about three months after the engagement, it was

for procuring permanent job in the Municipal Office and

immediately, it was paid. Witness stated that the deceased

was being treated cruelly, but the same was not for demand

of dowry, but on the other hand, it was with reference to a

regular quarrel between the husband and the wife in the

matrimonial house.

21. As per Ex.P11, the dying declaration of the injured

was recorded on 13.07.2008, i.e., on the very next day of the

incident. The injured has never stated about the cruelty

meted to her, but on the other hand, she stated that there

was a quarrel between her and her husband who was doing

double duty and as she was very much upset, she poured

kerosene and lit fire. The conduct of the appellant-accused

No.1 is to be considered on the basis of Ex.P11 - the

statement of the injured. The injured specifically stated that

when she poured kerosene and lit fire with the match stick,

the appellant was inside the house and he came running and

tried to extinguish the fire and his both hands got burn

injuries. Immediately, he poured water on her and shifted to

the hospital. This conduct of the appellant discloses that he

was not the person who set fire on his wife nor he left her to

her fate. But on the other hand, he made all efforts to save

her from the flame and also shifted to Shivam Hospital initially

and thereafter shifted to Apollo Hospital, Hyderabad. This

was the natural conduct of any husband in a given situation.

22. To attract Section 498A of IPC, the prosecution

must prove that the appellant-accused subjected the

deceased to cruelty as defined in the Explanation. Cruelty

explained in the Explanation means any wilfull conduct which

is of such a nature as is likely to drive the woman to commit

suicide or to cause grave injury or danger to life, limb or

health or harassment meted to the woman is of such nature

with a view to coerce her to meet any unlawful demand for

any property or valuable security.

23. In the present case, the discussions held above

disclose that at the time of incident, there is no reference to

any cruelty by the appellant which can drive the deceased to

commit suicide, but on the other hand, victim specifically

stated that immediately after her husband returned to the

house after doing double duty, there was a quarrel between

them. As she was upset, she attempted to commit suicide.

By no stretch of imagination, it could be said that the

appellant had treated the deceased with cruelty as described

in the Explanation appended to Section 498A of IPC. The

dispute between the husband and wife was a natural wear and

tear between the couple. Under such circumstances, the

same will not lead to invoking Section 498A of IPC.

24. The other penal provision for which the appellant

was convicted by the Trial Court is under Section 306 of IPC.

To attract Section 306 of IPC, there must be abetment for

committing suicide. In the present case, no such materials

are placed before the Court to contend that the accused

abetted and forced the deceased, in any manner, to commit

suicide. But on the other hand, the statement of the deceased

was very clear that there was dispute between her and the

appellant and she was upset. Therefore, she herself poured

kerosene and set ablaze. Hence, even Section 306 of IPC is

not attracted to the facts and circumstances of the case.

Under such circumstances, the appellant is entitled to be

acquitted for both the offences.

25. I have gone through the impugned judgment of

conviction and order of sentence passed by the Trial Court. It

has proceeded to convict the accused for the above said

offences placing reliance on the evidence of PWs.7, 11 and

18. Heavy reliance was placed on the dying declaration -

Ex.P11. If the statement of the injured as per Ex.P11 is taken

as it is, neither Section 498A nor Section 306 of IPC could be

invoked against the appellant. PW7 - the informant being the

mother of the injured casually referred to the cruelty and

harassment meted to her daughter by the accused. But such

harassment and cruelty would not fall under any Explanation

appended to Section 498A of IPC. Moreover, Section 306 of

IPC is not at all attracted as the injured specifically stated that

it was she who committed suicide being upset after

quarrelling with her husband. Therefore, the impugned

judgment of conviction and order of sentence passed by the

Trial Court placing reliance on the presumption under Section

113A of the Evidence Act is perverse and illegal and the same

is liable to be set aside.

26. Even though the death of the deceased was about

a year after her marriage with the appellant, the prosecution

has not proved that she was subjected to cruelty by the

appellant to invoke the presumption under Section 113A of

Indian Evidence Act. Therefore, the impugned judgment of

conviction and the order of sentence is liable to be set aside.

Accordingly, I answer the above point in Affirmative and

proceed to pass the following:

ORDER

The appeal is allowed.

The judgment of conviction and order of sentence dated

12.04.2016 passed in SC No.31 of 2009 on the file of learned

Principal District and Sessions Judge, Raichur, convicting him

for the offence punishable under Sections 498A and 306 of

Indian Penal Code, is hereby set aside.

The appellant-accused No.1 is acquitted for the charges

levelled against him.

The bail bond and that of his sureties shall stand

cancelled.

The fine amount, if any, deposited by the appellant-

accused No.1 shall be transferred to the Trial Court for

necessary action.

Registry to send back the Trial Court records.

Sd/-

JUDGE

*bgn/-