The State Of Karnataka vs Muthappa S/O Balappa
2022 Latest Caselaw 7638 Kant

                             1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 30TH DAY OF MAY, 2022

                         BEFORE

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

         CRIMINAL APPEAL NO.200187/2016

Between:
The State of Karnataka,
Through Rural Police Station,
Raichur, Represented by the
Additional State Public Prosecutor,
Kalaburagi
                                               ... Appellant
(By Sri Gururaj V. Hasilkar, Advocate)
And:
Muthappa S/o Balappa,
Age: 52 years, Occ: Working as
peon in Irrigation Department,
R/o House No.C/36,
Irrigation Dept. Quarters,
Yeramarus Camp.
                                             ... Respondent
(By Sri Avinash A. Uploankar, Advocate)
      This Criminal Appeal is filed under Section 378(1) &
(b) of the Code of Criminal Procedure, praying to set aside
the judgment of acquittal dated 18.08.2016 passed by I-
Additional District and Sessions Judge, at Raichur, in
S.C.No.22/2012 and convict the respondent/accused for
the offences punishable under Sections 498-A and 306 of
IPC.
                                 2




      This appeal coming on for Hearing, this day, the
Court delivered the following:

                     JUDGMENT

The State has preferred this appeal aggrieved by the

impugned judgment of acquittal dated 18.08.2016 passed

in S.C.No.22/2012 on the file of Additional Sessions Judge,

Raichur, (hereinafter referred to as 'Trial Court')

whereunder, the accused was acquitted for the offences

punishable under Sections 498-A and 306 of Indian Penal

Code, 1860 (for short 'IPC').

2. Brief facts of the case are that the statement

of Mariyamma was recorded by the police when she was

taking treatment in RIMS Hospital, Raichur, wherein she

has stated that she married the accused about six years

back and she is his second wife. She had begotten a girl

child by name Usha who was aged 5 years. The accused

had three children from his first wife. The accused had

relationship with other lady and he used to abuse and

assault the informant. He was also suspecting her fidelity.

On 06.08.2011, at 9.30 a.m., the accused while going to

office, criminally intimidated her to go and die and

therefore, at 1.00 p.m., she tried to commit suicide by

pouring kerosene on herself. Her child Usha came and

hugged her. Therefore, she also sustained burn injuries

and died at the spot. The informant also stated that as

she could not tolerate the ill-treatment of her husband,

she tried to commit suicide.

3. On the basis of this information, the first

information was registered by Rural Police Station,

Raichur, against the accused for the offences punishable

under Section 498-A and 109 of IPC. Later, one more

statement of the injured was recorded as per Ex.P5 by the

Taluka Executive Magistrate as her dying declaration. The

injured has reiterated her statement regarding the ill-

treatment by her husband and attempt to commit suicide

by her by pouring kerosene. Thereafter, the injured

succumbed to the burn injuries and therefore,

Investigating Officer invoked Section 306 of IPC. After

investigation, the Investigating Officer filed charge sheet

against the accused for the offences punishable under

Sections 498-A and 306 of IPC.

4. The accused has appeared before the Trial

Court and pleaded not guilty for the charges levelled

against him. Thereafter, the prosecution has examined as

many as 19 witnesses, got marked Exs.P1 to P24 and

identified M.Os.1 to 4 in support of its contention. The

accused has denied all the incriminating materials available

on record in his statement recorded under Section 313 of

Cr.P.C., but has not chosen to lead any evidence in

support of his defence. The Trial Court after taking into

consideration all the materials on record came to the

conclusion that the prosecution is not successful in proving

the guilt of the accused beyond reasonable doubt and

therefore, the accused was acquitted.

5. Being aggrieved by the impugned judgment of

acquittal passed by the Trial Court, the State has preferred

this appeal. The respondent-accused is notified. He is

represented by his Advocate.

6. Heard Sri Gururaj V. Hasilkar, learned High

Court Government Pleader for the appellant-State and

Sri Avinash A. Uploankar, learned counsel for the

respondent-accused.

7. Learned High Court Government Pleader

representing the State submitted that it is a clear case of

harassment and treating the deceased with cruelty and

abetting the commission of suicide by the deceased.

PWs.1, 2, 3, 5, 8, 9 and 13 have consistently deposed

supporting the case of prosecution. The informant herself

lodged first information and thereafter, dying declaration

as per Ex.P5 was recorded by the Taluka Executive

Magistrate. There are sufficient materials to contend that

the accused was treating the deceased with cruelty.

Admittedly, she committed suicide due to the abetment by

the accused. Inspite of that, the Trial Court acquitted the

accused without any basis. Therefore, he prays for setting

aside the impugned judgment of acquittal and to convict

the accused in the interest of justice.

8. Per contra, learned counsel for the respondent-

accused supporting the impugned judgment of acquittal

passed by the Trial Court contended that the relationship

between the parties is not in dispute. PW.1 has stated

that the marriage of the deceased with the accused was

held about eight years back. They were leading

matrimonial life all these eight years and had a daughter

aged 5 years. The evidence of the prosecution witnesses

disclose that the deceased was having suicidal tendency

and on the date of incident, she herself committed suicide

without there being any abetment. Even as per the

medical records, the deceased had sustained 95%-100%

burn injuries. The condition of the injured while giving

first information and also while recording dying declaration

is not recorded in any of those documents. Moreover, the

prosecution witnesses consistently stated that Telugu is

the mother tongue of the deceased. PW.2, mother of the

deceased specifically stated that the deceased was not

knowing Kannada. But the dying declaration is in Kannada

which is a language not known to the deceased. Even

though it is contended that the accused used to ill-treat

her, no complaint was lodged earlier to the incident.

Therefore, the Trial Court was right in acquitting the

accused by giving the benefit of doubt. Hence, he prays

for dismissal of the appeal as devoid of merits.

9. Perused the materials on record. Considering

the rival contentions of the parties, the following point

would arise for my consideration:

"Whether the appellant-State has made out a ground to interfere with the impugned judgment of acquittal passed by the Trial Court?"

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

following:

REASONS

10. It is the contention of the prosecution that the

accused being the husband of deceased-Mariyamma used

to treat her with cruelty and abetted her to commit

suicide. As a result of which, she poured kerosene on

herself and set ablaze. In the meantime, her daughter

aged 5 years came and hugged her and she died at the

spot. Mariyamma sustained burn injuries and was shifted

to the hospital. On the basis of her statement, FIR was

registered and thereafter, dying declaration as per Ex.P5

was recorded.

11. Ex.P9 is the first information-statement of the

injured Mariyamma which was recorded while taking

treatment in the hospital. She stated that the accused is

her husband and she married him about six years back.

They have begotten a daughter by name Usha who was

aged 5 years. The accused was having his first wife and

three children in the first marriage. The accused is

addicted to bad vices. He had relationship with other lady

and was consuming alcohol. He was also ill-treating the

injured. On 06.08.2011, at 9.30 a.m., the accused

intimidated the deceased that she should not live.

Therefore, she was very much upset and tried to commit

suicide by pouring kerosene and litting fire at about 1.00

p.m. Her daughter sustained burn injuries and died on the

spot. Similar is the dying declaration recorded as per

Ex.P5 by the Taluka Executive Magistrate.

12. PW.9 is the doctor who treated the injured in

RIMS Hospital, Raichur. He stated that the injured has

received 95%-100% burn injuries. He also stated that only

for 10-15 minutes he treated the injured. She was

conscious at the time of admission. The witness also stated

during the course of cross-examination that since she had

sustained burn injuries upto 100%, she was in a critical

condition. However, he denied the suggestion that she

was not in a condition to talk. The witness stated that the

injured died on the same day at 7.30 p.m.

13. PW.13 is also the Medical Officer working in

RIMS Hospital, Raichur. This witness stated that the

injured had sustained 92%-95% burn injuries and she was

able to speak. The witness stated that the Taluka

Executive Magistrate recorded her dying declaration and

he had signed the same. But, he had not given the fitness

certificate in writing.

14. PW.8 is the Taluka Executive Magistrate who

recorded the dying declaration as per Ex.P5. This witness

has stated that the injured had sustained 80% burn

injuries and was able to speak. He put the questions to

the injured one by one and she answered. The witness

also stated that after the death of the deceased, he

conducted inquest mahazar as per Ex.P3. During the

course of cross-examination, the witness stated that when

he recorded the dying declaration, no other person was

present in the ward and he had not obtained any written

permission from the doctor. The dying declaration was

recorded in Kannada which she could speak. The doctor

was present at that time. But, he had not taken the

certificate regarding her mental condition.

15. PW.1 is the brother of the deceased. This

witness stated regarding cruelty meted by the accused to

the deceased. But, he stated that the deceased was

generally speaking Telugu and she knew little bit Kannada.

PW.3, the sister, has also deposed that the deceased was

knowing little bit Kannada, but generally she was speaking

Telugu. But, PW.2, the mother of the deceased specifically

stated that the deceased was knowing only Telugu

language and not Kannada.

16. Even though PW.8, the Taluka Executive

Magistrate, stated that he posed various questions to the

deceased and recorded her answers, Ex.P5 is not in the

format of question and answers. It is recorded in

Kannada. But, it is certified that it was read over in the

language known to the deponent. Of-course, PW.13 has

signed the dying declaration as the same was recorded in

his presence. But, he has not stated anything about the

mental condition and fitness of the injured to give

statement.

17. As per the case made out by the prosecution,

the deceased married the accused about six years back

and he used to ill-treat her daily. The prosecution

witnesses admitted that the deceased had attempted to

commit suicide even earlier, but, she was not successful.

This admission on the part of prosecution witnesses goes a

long way in appreciating the conduct of the deceased. She

stated that on the date of incident, at about 9.00-9.30

a.m., the accused had warned her that she should not be

in the house. Therefore, she attempted to commit suicide

at about 1.00 p.m., and succumbed to the injuries at

about 7.00 p.m.

18. The prosecution is successful in placing

materials to prima facie prove that the accused was

treating the deceased cruelly and she committed suicide in

his house after he went to the office. But, the mental

status of the injured after sustaining burn injuries upto

100% to give statement as per Exs.P9 and P5, is not

stated by the doctor. Even though it is contended that

PW.13, the Medical Officer, was present at the time of

recording Ex.P5, he was not the doctor who treated the

injured nor he certified her fitness to give statement. PW.9

is the doctor who treated the injured and deposed that she

had sustained 95%-100% burn injuries. Moreover,

whether the injured was in a position to give statement in

Kannada language is also doubtful in view of the evidence

of PWs.1 to 3 who are close relatives. Therefore, it cannot

be said that the prosecution is successful in proving the

guilt of the accused beyond reasonable doubt. The benefit

of doubt is to be extended to the accused and he is to be

acquitted.

19. I have gone through the impugned judgment

of acquittal passed by the Trial Court. It has taken into

consideration the materials on record and appreciated it in

a proper perspective. I do not find any reason to interfere

with the same. Hence, I answer the above point in the

negative and proceed to pass the following:

ORDER

Criminal Appeal filed by the State is hereby

dismissed.

Registry is directed to send back the Trial Court

records along with a copy of this judgment to the Trial

Court for information.

Sd/-

JUDGE

NB*