Ms. B.Sushmitha vs The State Of Karnataka
2023 Latest Caselaw 2215 Kant

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                                                      RSA No. 1781 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 13TH DAY OF APRIL, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO.1781 OF 2022 (DEC)



                   BETWEEN:

                   MS.B SUSHMITHA
                   D/O BEERAIAH
                   AGED ABOUT 26 YEARS
                   RESIDENT OF KALKI NILAYA
                   BEHIND NALANDA CONVENT
                   HUNASINAKERE LAYOUT
                   HASSAN-573201.


                                                              ...APPELLANT
Digitally signed   (BY SRI A C BALARAJ, ADVOCATE)
by SHARANYA T
Location: HIGH
COURT OF
KARNATAKA          AND:

                   1.    THE STATE OF KARNATAKA
                         REPRESENTED BY ITS CHIEF SECRETARY
                         GOVERNMENT OF KARNATAKA
                         VIDHANA SOUDHA
                         VIDHANA VEEDHI
                         BENGALURU-560001

                   2.    THE COMMISSIONER AND THE REGISTRAR
                         DEPARTMENT OF BIRTH AND DEATH
                         MYSORE CITY CORPORATION
                          -2-
                                  RSA No. 1781 of 2022




     SAYYAJI RAO ROAD
     MYSURU-570010

3.   THE ASSISTANT STATISTICAL OFFICER
     MYSORE CITY CORPORATION
     SAYYAJI RAO ROAD
     MYSURU-570010

4.   THE COMMISSIONER OF POLICE
     MYSORE CITY
     MYSURU-570010

5.   THE ASSISTANT EXECUTIVE ENGINEER
     PWP AND IWT DEPARTMENT
     PUBLIC WORKS, PORTS, INLAND, WATER
     TRANSPORT DEPARTMENT
     NO.1, SUB DIVISION
     NAZARBAD
     MYSURU-570010


                                      ...RESPONDENTS



      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 09.09.2022
PASSED IN R.A.NO.90/2021 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU
AND ETC.


      THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                       RSA No. 1781 of 2022




                    JUDGMENT

This matter is listed for admission. Heard the learned

counsel appearing for the appellant.

2. This appeal is filed challenging the judgment

and decree dated 09.09.2022 passed in R.A.No.90/2021

on the file of the I Additional Senior Civil Judge and CJM,

Mysuru.

3. The factual matrix of the case of the plaintiff

before the Trial Court is that she being the only daughter

of Sri Beeraiah and Smt.Radha and they were residing in

the house No.79, near old police station road, Metagalli,

Mysuru. The father of the plaintiff was working in the

office of Assistant Executive Engineer, PWD and IWT

department, No.1 sub-division, Nazarbad, Mysuru from

11.08.2000 to 16.08.2003. The mother of the plaintiff

was murdered and the case was registered under Section

302 of IPC in Cr.No.98/2003 in Metagalli police station on

17.08.2003 as per the allegations that said Beeraiah was

RSA No. 1781 of 2022

murdered his wife Radha and thereafter the father of the

plaintiff was absconded. Inspite of investigation, the

police could not find any clue about whereabouts of

Beeraiah. Even after detailed investigation to trace out

the Beeraiah, no clue has been found to the police with

regard that said Beeraiah was alive. The police have filed

'C' report before the Court stating that he is not found and

he was unauthorized absent for his service from

18.08.2003 till filing of the suit. It is further contended

that the plaintiff is a minor at the time of the incident and

she was under the care and custody of her maternal uncle.

The father of the plaintiff was not traced out from 2003 till

filing of the suit hence, as per law, it is to be presumed

that he is deemed to have died as he is not known from

last 15 years. Hece, filed the suit for the relief of

declaration to declare that the father of plaintiff Beeraiah

is deemed to be died.

4. In pursuance of suit summons, defendant

Nos.1, 4 and 5 appeared and defendant Nos.3 and 5 have

RSA No. 1781 of 2022

filed written statement and also filed a memo stating that

defendant Nos.1 and 4 have adopted the written

statement filed by defendant No.5. In the written

statement it is contended that the case has been

registered for the offence punishable under Section 302 of

IPC and the father of the plaintiff was unauthorized absent

from the date of the incident and the same was also

intimated to the concerned department.

5. Based on the pleadings of the parties, the Trial

Court framed the issues and also allowed the parties to

lead their evidence. In order to prove the case of the

plaintiff, she herself examined as PW1 and got marked the

documents at Ex.P1 to P26. On the other hand,

defendants have examined one witness as DW1 and got

marked the documents at Ex.D1 to D17. The Trial Court

after considering both oral and documentary evidence

placed on record dismissed the suit of the plaintiff in

coming to the conclusion that a case was registered

against the father of the plaintiff for the offence punishable

RSA No. 1781 of 2022

under Section 302 of IPC as he has committed the murder

of his wife and he has absconded from the date of

incident. After completion of the investigation also he has

not traced out hence, the police have filed 'C' report

stating that he is not traced out. Thus, the Trial Court

dismissed the suit of the plaintiff on the ground that the

father of the plaintiff had absconded after committing the

murder of his wife hence, the plaintiff is not entitled for

the relief as sought.

6. Being aggrieved by the judgment and decree of

the Trial Court, an appeal was filed before the First

Appellate Court. The First Appellate Court also on re-

appreciation of both oral and documentary evidence

placed on record taken note of the fact that as per Section

103 of IPC it is the burden of plaintiff to prove particular

fact and the burden of proving the death of a person

known to be alive within 30 years is on the shoulder of the

plaintiff and as per Section 108 of Indian Evidence Act, the

burden of proving person is alive who has not heard for 7

RSA No. 1781 of 2022

years is on the plaintiff herein. The plaintiff has to prove

that her father is alive who has not heard for 7 years. In

this context, Ex.P3 'C' report discloses that after the

commission of murder of mother of the plaintiff, he written

a letter stating that after murdering his wife, he

proceeding towards KRS hence, under the guise of suicide

may be committed by him, an effort was made to find the

dead body of the father of the plaintiff but not found. It is

a case of absconding after committing the heinous offence

of murder of his wife. The 'C' report also discloses that

the investigation temporarily suspended. The said

Beeraiah was unauthorized absent by attending the duty

from 18.03.2003. There is a specific difference in between

person not found and the person absconding after the

commission of the heinous offence. Hence, absconded

after the commission of heinous offence will not come in

the way of declaration that the father of plaintiff is not

alive and not found from 7 years. Having taken note of

these materials, the First Appellate Court dismissed the

RSA No. 1781 of 2022

appeal. Being aggrieved by the judgment and decree of

the First Appellate Court, the present appeal is filed.

7. The learned counsel for the appellant would

vehemently contend that both the Courts have erred in

dismissing the suit and committed an error in not

considering Section 108 of the Indian Evidence Act and the

finding of both the Courts are untenable in law and merely

the case has been registered, 'C' report is filed, the same

cannot be a ground for not to invoke Section 108 of the

Indian Evidence Act. Hence, the counsel contended that

this Court has to frame the substantial question of law to

admit the appeal.

8. Having heard the learned counsel for the

appellant and also on perusal of the material available on

record, it is not in dispute that a case is registered against

the father of the plaintiff since he had indulged in

committing the murder of his wife and thereafter

absconded and Section 302 of IPC is charged against him

and the material also discloses that after investigation, the

RSA No. 1781 of 2022

police have filed 'C' report stating that the father of the

plaintiff is not traced out and also found the material

during the investigation that after committing the murder,

he has written a letter stating that he is proceeding

towards KRS, thus, the police have made the efforts to

find out the body of him under the guise that he might

have committed suicide but body was not found. Having

considered the material available on record, both the

Courts taken note of the fact that it is a case of

absconding after committing the heinous offence of

murder and it is not a case of not found hence, it is not a

case for invoking Section 108 of the Indian Evidence Act.

Both the Courts have taken note of the fact that under

what circumstances, the father of the plaintiff left the

house, the offence punishable under Section 302 of IPC is

invoked against him since he has committed the alleged

murder of his wife and thereafter he absconded and till

date he is not traced out and police have filed the 'C'

report stating that he is not traced out and both the

Courts have opined that there is a difference between

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RSA No. 1781 of 2022

'absconding' and 'not found' as contemplated under

Section 108 of the Indian Evidence Act. When such being

the case, I do not find any error committed by both the

Courts in dismissing the suit as well as the appeal of the

plaintiff. Hence, no grounds are made out to admit the

appeal and to frame the substantial question of law

invoking Section 100 of CPC.

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

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN