Karnataka High Court

Kantharaju vs State Of Karnataka on 17 July, 2023

Bench: S Rachaiah

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                                    CRL.RP No. 1372 of 2019
                                                              R
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 17TH DAY OF JULY, 2023
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1372 OF 2019
BETWEEN:
KANTHARAJU
S/O NAGARAJU
OCCUPATION: COOLIE
AGED ABOUT 46 YEARS
RESIDING AT VITTAVATHANAHALLI VILLAGE
URIDIGERE HOBLI, TUMKUR TALUK
PIN - 572 140.

                                               ...PETITIONER
(BY SRI. CHETAN DESAI, ADVOCATE)

AND:
STATE OF KARNATAKA
BY KYATHASANDRA POLICE STATION
REPRESENTED BY
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001.

                                             ...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 18.01.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE
AND JMFC-1, TUMAKUR IN C.C.NO.3980/2011, INSOFAR AS
CONVICTING AND SENTENCING THE PETITIONER FOR THE
OFFENCES PUNISHABLE UNDER SECTION 498-A IPC, AND
CONFIRMED BY THE ORDER DATED 04.10.2019 PASSED BY
THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE,
TUMAKUR, AT TUMAKUR IN CRL.A.NO.02/2019 AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 27.06.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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                                           CRL.RP No. 1372 of 2019




                               ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 18.01.2019 in C.C.No.3980/2011 on

the file of the Court of the Principal Civil Judge and J.M.F.C-I at

Tumakuru and its confirmation judgment and order dated

04.10.2019 in Crl.A.No.2/2019 on the file of the Court of the

VI Additional District and Sessions Judge at Tumakuru seeking

to set aside the concurrent findings recorded by the Courts

below, wherein the petitioner / accused is convicted for the

offences punishable under Sections 498-A of Indian Penal Code

(for short 'IPC').

2. The petitioner is the accused before the Trial Court

and appellant before the Appellate Court.

Brief facts of the case are as under:

3. It is the case of the prosecution that, the

complainant married the petitioner as second wife and it is

stated in the said complaint that, initially upto five years, both

the petitioner and the complainant were living cordially. In the

said marriage, the couple had a male child. After she gave

CRL.RP No. 1372 of 2019

birth to the child, she had some health issues. Later on, she

was affected due to paralysis, which led her to lose control over

her legs, she became incapacitated. The petitioner, due to the

said health issues of the complainant, started harassing her

and it is stated that, she was being subjected to cruelty and

mental torture. It is further stated that, she was being abused

in a filthy language and she was thrown out of the matrimonial

home. After she was thrown out of the matrimonial home, she

started living by running a petty shop for her livelihood. Then

also, the petitioner started quarreling and threatened her that

he would pour kerosene and lit fire to the shop along with her,

if she continued to run petty shop in that area. Unable to

tolerate the cruelty and harassment of the petitioner, the

complainant has lodged a complaint before the jurisdictional

police. The police have registered a case and submitted the

charge sheet.

4. To prove the case of the prosecution, the

prosecution examined, in all, 7 witnesses namely PWs.1 to 7

and got marked Exhibits P1 to P4. The Trial Court after

appreciating the oral and documentary evidence on record,

convicted the petitioner for the offence punishable under

Section 498-A of IPC. Being aggrieved by the same, the

CRL.RP No. 1372 of 2019

petitioner preferred an appeal before the Appellate Court, the

Appellate Court confirmed the judgment of conviction rendered

by the Trial Court. Being aggrieved by the same, the petitioner

has preferred this revision petition seeking to set aside the

concurrent findings.

5. It is the submission of learned counsel for the

petitioner that, the Trial Court and the Appellate Court

committed grave error in not appreciating the evidence and law

properly, hence, the same is required to be set aside. The

main contention of the learned counsel for the petitioner is

that, the complainant being the second wife of the petitioner,

the offence under Section 498-A of IPC cannot be attracted and

both the Courts below have committed error in not considering

that aspect. In support of his contention, learned counsel for

the petitioner has made available and relied on the judgments

of the Hon'ble Supreme Court in Shivcharan Lal Verma &

Another v. State of Madhya Pradesh1 and P.Sivakumar & Others

v. State, Rep. by the Deputy Superintendent of Police etc.,2

Making such submission, learned counsel for the petitioner

(2007) 15 SCC 369

Crl.A.No.1408-1409/2012 disposed of on 09.02.2023

CRL.RP No. 1372 of 2019

prays to allow the revision petition and set aside the concurrent

findings of conviction.

6. Per contra, learned High Court Government Pleader

(for short "HCGP") justified the concurrent findings and submits

that, the evidence of PWs.1 and 2 clearly indicate and prove

that, PW.1 was harassed, ill-treated and threatened by the

petitioner. It is further stated that, the cruelty which extended

to PW.1 to commit suicide, however, she decided to lead her

life independently by doing own business. It is further stated

that, the petitioner herein being a husband constantly and

continuously harassing her on one or the other pretext, hence,

she had lodged a complaint. The Courts below accepted the

evidence of all the witnesses and appreciated it in right

perspective and convicted the petitioner, which requires no

interference. Having submitted thus, the learned HCGP prays

to dismiss the petition.

7. Having heard learned counsel for the respective

parties and also perused the documents along with the findings

of the Courts below, it is necessary to have a look upon the

point which the petitioner has raised in this revision petition.

CRL.RP No. 1372 of 2019

8. It is the submission of learned counsel for the

petitioner that, the complainant being the second wife, the

Courts below should not have convicted the petitioner for the

offence under 498-A of IPC since the basic ingredients of the

said provision do not attract. As regards the said contention, it

is necessary to refer the provision of Section 498-A of IPC.

"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--

(a) any wilful 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 (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

9. On perusal of the above said provision, it shows

that the husband or relative of a woman subjecting her to

CRL.RP No. 1372 of 2019

cruelty, shall be punished with imprisonment. It is needless to

say that, "woman" in the said definition means and includes,

legally wedded wife. As per the evidence of PWs.1 and 2, it is

an admitted fact that, the complainant was the second wife of

the petitioner.

10. The prosecution has to establish that, the marriage

of PW.1 is legal or she is the legally wedded wife of the

petitioner. Unless, it is established that, she is the legally

wedded wife of the petitioner, the Courts below ought to have

acted upon the evidence of PWs.1 and 2 that, PW.1 was the

second wife. Once PW.1 is considered as second wife of the

petitioner, obviously, the complaint filed against the petitioner

for the offence under Section 498-A of IPC ought not to have

been entertained. In other words, complaint filed by the

second wife against the husband and her in-laws is not

maintainable. The Courts below committed error in applying

the principles and also the law on this aspect. Therefore,

interference by this Court in exercising the Revisional

jurisdiction is justified.

11. My view is fortified by the dictum Hon'ble Supreme

Court in the cases stated supra. Now, it is relevant to refer the

dictum of the Hon'ble Supreme Court to arrive at a conclusion

CRL.RP No. 1372 of 2019

as to whether the second wife is permitted to lodge the

complaint against the husband for the offence under Section

498-A of IPC.

12. The Hon'ble Supreme Court, in paragraph No.2 of

Shivcharan Lal Verma's case, referred to supra, has held as

under:-

"2. This matter had not been taken up for hearing for this length of time as the judgment of this Court holding Section 306 of the IPC to be unconstitutional, was under re-consideration by the Constitution Bench. The Constitution Bench finally disposed of the matter in Criminal Case No. 274 of 1984 and batch and set aside the earlier judgment of this Court and held that Section 306 is constitutionally valid. In view of the aforesaid Constitution Bench decision, two questions arise for consideration in this appeal. One, whether the prosecution under Section 498-A can at all be attracted since the marriage with Mohini itself was null and void, the same having been performed during the lifetime of Kalindi. Second, whether the conviction under Section 306 could at all be sustained in the absence of any positive material to hold that Mohini committed suicide because of any positive act on the part of either Shiv Charan or Kalindi. There may be considerable force in the argument of Mr Khanduja, learned counsel for the appellant so

CRL.RP No. 1372 of 2019

far as conviction under Section 498-A is concerned, inasmuch as the alleged marriage with Mohini during the subsistence of a valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under Section 498-A IPC. But so far as the conviction under Section 306 is concerned, the evidence of the three witnesses already referred to, makes it absolutely clear that it is on account of torture by both Kalindi and Shiv Charan that Mohini committed suicide inside the house of Shiv Charan in another room. The learned Sessions Judge as well as the High Court have appreciated the evidence of the aforesaid three witnesses and on going through the evidence of these three witnesses, we do not find any error committed by the courts below either in the matter of appreciation or in their approach relating to the evidence in question. We, therefore, do not find any infirmity with the conviction of the appellants under Section 306 IPC. So far as the sentence is concerned, they have been sentenced to undergo rigorous imprisonment for seven years but having regard to the facts and circumstances of this case, we reduce the sentence to five years. This appeal is accordingly disposed of. Bail bonds of the appellants would stand cancelled and they must surrender to undergo the remaining period of sentence."

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CRL.RP No. 1372 of 2019

13. Similarly, the dictum of the Hon'ble Supreme Court

in the case of P.Sivakumar, referred to supra, in para 7 of the

said judgment, it reads thus:

"7. Undisputedly, the marriage between the appellant No.1 and PW-1 has been found to be null and void. As such the conviction under Section 498-A IPC would not be sustainable in view of the judgment of this Court in the case Shivcharan Lal Verma's case supra. So far as the conviction under Sections 3 and 4 of the Dowry Prohibition Act is concerned, the learned trial Judge by an elaborate reasoning, arrived at after appreciation of evidence, has found that the prosecution has failed to prove the case beyond reasonable doubt. In an appeal/revision, the High Court could have set aside the order of acquittal only if the findings as recorded by the trial Court were perverse or impossible."

14. The ratio of these two judgments of the Hon'ble

Supreme Court clearly indicates that, if the marriage between

the husband and wife ended as null and void, the offence under

Section 498-A of IPC cannot be sustained.

15. Admittedly, in the present case, the complainant in

her evidence, PW.2 being the mother of PW.1 both have

consistently deposed and admitted that, PW.1 is the second

wife of the petitioner. Accordingly, the concurrent findings of

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CRL.RP No. 1372 of 2019

the Courts below in recording the conviction requires to be set

aside.

16. In the light of the observation made above. I

proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.



     (ii)        The   judgment    of    conviction   and   order   of
                 sentence,        dated         18.01.2019          in

C.C.No.3980/2011 on the file of the Court of the Principal Civil Judge and J.M.F.C-I at Tumakuru and the judgment and order dated 04.10.2019 in Crl.A.No.2/2019 on the file of the Court of the VI Additional District and Sessions Judge at Tumakuru are set aside.