Karnataka High Court
Mahantesh Irappa Gulabaji vs The State Of Karnataka on 14 June, 2023
Bench: Anil B Katti
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CRL.RP No. 100054 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14 TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100054 OF 2015
BETWEEN:
1. SHRI MAHANTESH IRAPPA GULABAJI
AGE:38 YEARS, OCC:AGRICULTURE,
R/O:CHIVATGUNDI, TQ:BAILHONGAL
DT: BELAGAVI.
Digitally 2. SMT. MAHADEVI SHIDDALINGAPPA GULABAJI,
signed by J
J
MAMATHA AGE:46 YEARS, OCC:AGRICULTURE COOLIE,
Date:
MAMATHA 2023.06.15 R/O:CHIVATGUNDI, TQ:BAILHONGAL
10:54:09 -
0700 DT:BELAGAVI.
3. BASAVANNEPPA SHIDDALINGAPPA GULABAJI,
AGE:56 YEARS, OCC:AGRICULTURE COOLIE,
R/O:CHIVATGUNDI, TQ:BAILHONGAL
DT:BELAGAVI.
4. SHIVALINGAPPA SHIDDALINGAPPA GULABAJI,
AGE:56 YEARS, OCC:AGRICULTURE COOLIE,
R/O:CHIVATGUNDI, TQ:BAILHONGAL
DT:BELAGAVI.
(ABATED V/O DATED: 03.03.2023)
...PETITIONERS
(BY SHRI S.B. DEYANNAVAR, ADV.)
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CRL.RP No. 100054 of 2015
AND:
THE STATE OF KARNATAKA,
MAHILA POLICE STATION, BELAGAVI.
R/B SPP BENCH HIGH COURT, DHARWAD.
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. PRAYED TO CALL FOR THE RECORDS OF
THE COURTS BELLOW AND AFTER HEARING THE PETITIONER
AND RESPONDENT JUDGMENT AND ORDER DATED 07.02.2015
PASSED BY THE III-ADDITIONAL SESSIONS JUDGE, BELAGAVI,
IN CRIMINAL APPEAL NO.73/2012 BE SET ASIDE
CONSEQUENTLY THE CONVICTION AND SENTENCE ORDER
PASSED BY THE MAGISTRATE IN C.C.NO.38/2008 DATED
13.03.2012 MAY KINDLY BE QUASHED AND THE
REV./PETITIONER MAY KINDLY BE ACQUITTED FOR THE
OFFENCES PUNISHABLE U/S 498-A, 323 OF IPC.
THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 05.04.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
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CRL.RP No. 100054 of 2015
ORDER
Revision petitioners/accused feeling aggrieved by
judgment of first appellate Court in criminal appeal
No.73/2012 on the file of III Additional Sessions Judge,
Belagavi, dated 07.02.2015, preferred this revision
petition.
2. Parties to the revision petition are referred with
their ranks as assigned in the trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that
accused No.1 is husband of complainant, accused Nos.2 to
4 are relatives of accused No.1. In between 17.05.1998 to
17.07.2007, while the informant Shobha was residing in
the house of accused situated at Chivatgundi village,
taluka Bailhongal, accused have subjected her to cruelty
on the ground that she did not begotten child, teasing her
as 'Banje' etc. The prosecution further alleges that on
CRL.RP No. 100054 of 2015
17.07.2007 at about 2.00 p.m. accused Nos.1 to 4 in
furtherance of common intention picked up quarrel with
complainant and voluntarily caused hurt by assaulting her
with hands, further abused in filthy language with an
intention to provoke her to commit breach of public peace,
so also administered threat to take away the life of
complainant. On these allegations, investigating officer
filed charge-sheet.
4. In response to the summons, accused Nos.1 to
4 have appeared before the trial Court through counsel.
The trial Court after being prima-facie satisfied framed
charge against accused. They pleaded not guilty claimed
to be tried. Prosecution in order to prove the allegations
made against accused relied on the evidence of PWs. 1 to
10, documents Exs.P.1 to 6.
5. On closure of the prosecution evidence, the
statement of accused under Section 313 of Cr.P.C came to
be recorded. Accused have denied all the incriminating
CRL.RP No. 100054 of 2015
materials appearing against them and claimed that false
case is filed. The trial Court after appreciation of evidence
on record convicted all accused for the offences punishable
under Section 498A and 323 of IPC.
6. Accused challenged the said judgment of
conviction and order of sentence before the first appellate
Court on the file of III Additional Session Judge, Belagavi,
in criminal appeal No.73/2012. The first appellate Court
after re-appreciation of evidence on record dismissed the
appeal and confirmed the judgment of trial Court.
7. Revision petitioners/accused challenged the
concurrent findings of both the Courts below contending
that both the Courts below have committed serious error
in relying the interested evidence of P.Ws.2 to 4, 6 and 7.
The evidence of P.W.7 would go to show that complainant-
P.W.2 has left the matrimonial home on her own accord
and staying in parental house. Revision petitioner/accused
Nos.2 to 4 are handicap and P.W.2 did not like them since
CRL.RP No. 100054 of 2015
beginning and she developed hostility against them. The
panch witnesses P.Ws.1 and 5 and witnesses to alleged
cruelty P.Ws.8 and 9 have not supported the case of
prosecution. Revision petitioner/accused Nos.3 and 4 are
residing separately and they are in no way concerned with
family affairs of accused No.1 and complainant. The Courts
below conveniently ignored the said factual aspect and
committed error in holding that accused have committed
offences under Section 498(A) and 323 of IPC. The
approach and appreciation of oral and documentary
evidence by both the Courts below are contrary to law and
evidence on record. Therefore, prayed for allowing the
revision petition. Consequently, to acquit the accused from
the charges leveled against them.
8. In response to the notice, learned HCGP has
appeared for respondent-State.
9. The revision petitioner/accused No.4 during the
pendency of this revision petition is reported to be dead.
CRL.RP No. 100054 of 2015
The revision petition against accused No.4 is ordered to be
abated by order dated 03.03.2023.
10. Heard the arguments of both sides.
11. On careful perusal of oral and documentary
evidence on record, it would go show that complainant is
the wife of accused No.1 and accused No.2 to 4 are the
relatives of the accused No.1. Complainant after marriage
went to the house of accused No.1 for leading marital life
in Chivatgundi village, taluka Bailhongal. Accused No.2 is
junior aunt and accused Nos.3 and 4 are maternal uncles
of complainant and they are residing separately.
Complainant since 2007 is residing in her parental house
and she did not begotten any child out of wedlock with
accused No.1. The parental house of complainant is in
Bendigeri village, are the facts not in dispute and same
also can be borne out from the material evidence placed
on record by prosecution.
CRL.RP No. 100054 of 2015
12. The prosecution alleges that in between
17.05.1998 to 17.07.2007, complainant was residing in
the matrimonial home at Chivatgundi village, taluka
Bailhongal and accused have subjected her to cruelty on
the ground that she did not begotten any child and teasing
her as 'Banje'.
13. On 17.07.2007 at about 2.00 p.m. accused
Nos.1 to 4 having common intention picked up quarrel
with complainant and voluntarily caused hurt by assaulting
with hands. Accused have abused complainant in filthy
language, so as to provoke her to commit breach of public
peace and further administered threat to take away life of
complainant. The material witnesses relied by the
prosecution to prove that said charges are P.W.2-
complainant, P.W.3-father of complainant, P.W.4- mother
of complainant. The evidence of P.Ws.6 and 7, would go to
show that they went to the house of accused and they
advised accused not to ill-treat the complainant and she
may begot the child in future.
CRL.RP No. 100054 of 2015
14. P.W.2-complainant has deposed to the effect
that her marriage with accused No.1 was performed on
17.05.1998 at Chivatgundi village, taluka Bailhongal. At
the time of marriage two tola gold, cash of Rs.20,000/-,
utensils and wrist watch was given to accused No.1. She
went to the house of accused No.1 for leading marital life
and accused No.2 was residing with them. Accused Nos.3
and 4 are residing separately but they used to visit their
house. Accused No.1 got employment in Renuka Sugar
Factory, of munavali, accused No.4-Shivalingappa came to
her house and demanded to give dowry and quarreled her.
accused No.4 went to her parental house at Bendigeri
village and quarreled with her parents. Thereafter she was
sent to her parental house by assaulting, further they
abused in filthy language and administered threat to take
away her life. On revealing about the ill-treatment and
harassment of accused to her parents, they got advised
accused No.1 to look after the complainant well. However,
they continued to ill-treat the complainant. On 17.07.2007
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CRL.RP No. 100054 of 2015
in between 3.00 to 3.30 p.m. accused have driven out the
complainant from matrimonial home on the pretext of not
getting dowry and she did not begotten any child further
administered threat to take away the life.
15. The evidence of P.W.3 and 4-parents of the
complainant, would go to show that their evidence of
alleged ill-treatment and harassment of accused is based
on the revelation made by complainant.
16. P.W.6 is witness, who went along with P.W.7-
brother of P.W.4 to the house of accused and advised
them not to ill-treat the complainant and look after her
well, further she may begot the child in future. The
evidence of P.Ws.6 and 7 regarding their knowledge of
accused having ill-treated the complainant is based on the
information given by the parents of complainant P.W.3 and
4. The above referred evidence will have to be appreciated
in the light of case of prosecution and attending
circumstances, so as to draw an inference from proved
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CRL.RP No. 100054 of 2015
facts that accused have subjected complainant to physical
and mental cruelty. The prosecution to bring home guilt of
accused for the offence punishable under Section 498A of
IPC must prove a willful conduct of accused which is of
such nature that would be sufficient to draw an inference
from proved facts of the case that accused have subjected
complainant to physical and mental cruelty. Looking to the
evidence placed on record by prosecution alleged cruelty
claimed by prosecution is in terms of Section 498(A)(b) of
IPC which reads as under:
"498(A)(b) of IPC: 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."
17. In the present case, the specific allegation
against accused is that they have ill-treated and harassed
the complainant on the pretext that she did not begot any
child. It is only P.W.2 and her mother stated in their
examination chief that the accused were quarreling with
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CRL.RP No. 100054 of 2015
P.W.2 in relation to dowry. However, evidence of P.W.3-
father of complainant only goes to show that alleged
demand of dowry is on the date of incident itself on
17.07.2007, when P.W.2 was driven out of the
matrimonial home. On going through the evidence of
P.W.2, it would go to show that she never alleges that all
the accused were ill-treating on demand of dowry. On the
contrary it is her evidence that accused No.4 came to the
house and quarreled with her on demand of dowry.
Further he went to her parental house and quarreled with
them on demand of dowry. However, the said evidence is
not certified by her parents P.Ws. 3 and 4 during the
course of their evidence. They have never deposed to the
effect that accused No.4 came to their house and
quarreled with them on demand of dowry. Therefore, only
the general statement of P.W.3 and 4 that on the bases of
revelation made by P.W.2 that accused were quarreling
with P.W.2 on demand of dowry cannot be said as
sufficient evidence to hold that the accused were
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CRL.RP No. 100054 of 2015
demanding dowry and on failure to bring dowry accused
were ill-treating and harassing the complainant. The
evidence of P.Ws. 6 and 7, would go to show that they
went to the house of accused after she started residing in
her parental house along with elders. The evidence of
P.Ws.4 to 8 is totally silent as to whether they questioned
accused about ill-treating and harassing the complainant
on demand of dowry. P.W.7 claimed that after advising
accused they left complainant in the matrimonial home. If
the evidence of P.Ws 2, 3, 4, 6 and 7 in this regard is
appreciated then it would go to show that their evidence
mainly focuses on advising accused not to harass
complainant as she did not begotten any child and she
may begot child in future.
18. The evidence of P.Ws.2, 3 and 4 with regard to
giving two tola gold, cash of Rs.20,000/-, utensils and
wrist watch at the time of marriage is not demanded by
any accused. The customary giving and taking at the time
of marriage cannot be termed as dowry, unless it is
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CRL.RP No. 100054 of 2015
proved by evidence on record that dowry was paid on
demand of accused other then customary giving and
taking at the time of marriage. In the present case, there
is no evidence to show that accused have demanded two
tola gold, cash of Rs.20,000/-, utensils and wrist watch at
the time of marriage.
19. The general allegations of P.Ws.3 and 4 that the
accused were ill-treating and harassing their daughter
P.W.2 on demand of dowry cannot be said as sufficient
evidence and their evidence is mainly based on revelation
made by the P.W.2 to that the effect. However, P.W.2
herself do not make any allegation against accused other
than accused No.4 that he came to her house and
demanded dowry. Thereafter, picked up quarrel with the
parents on the same issue. However said fact has not
been certified of P.Ws.3 and 4.
20. Indisputably according to the evidence of P.W.2,
accused No.2 was residing with them in the house and
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CRL.RP No. 100054 of 2015
accused No.3 and 4 are residing separately. Accused No.2
is junior aunt and accused Nos.3 and 4 are maternal uncle
of complainant.
21. The financial status of accused No.1 and doing
agriculture at the time of marriage was within the
knowledge of P.W.2 and her family members. The
marriage took place on 17.07.1998 and till 17.07.2007
there were no allegations against the accused for having
ill-treated and harassed P.W.2 on demand of dowry. The
evidence of P.Ws.3 and 4 does not speak anything that in
between above referred period P.W.2 having complained
before them about accused ill-treating and harassing on
demand of dowry. Further there is no evidence on record
that P.W.3 and 4 or any elders having advised accused on
the alleged ill-treatment and harassment on demand of
dowry.
22. On the other hand, the evidence of P.Ws.2 to 4,
would go to show that P.W.2 led marital life with accused
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CRL.RP No. 100054 of 2015
No.1 for about 7 to 8 years. P.W.3 has admitted that after
P.W.2 came to reside with them, she did not go back to
matrimonial home. P.W.3 further admitted that accused
No.1 and remaining accused after partition are residing
separately. Therefore, looking into the above referred
evidence on record, it is difficult to believe that all the
accused with their common intention have ill-treated and
harassed the complainant on demand of dowry. It is true
that P.W.2 has not begotten any child. The accused were
alleged to have harassed P.W.2-complainant on the said
aspect that she did not begot any child.
23. On the other hand, it is claimed in the cross
examination of P.W.2 that she was pregnant and got
aborted during her stay in the parental house having
apprehension that new bone child may have the same
defect of physical disability. The said fact has been denied
by P.W.2 in her cross examination. Otherwise also, if there
was harassment to P.W.2 on the pretext that she did not
begot any child, then why she did not complain to her
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CRL.RP No. 100054 of 2015
parents in between the period of 17.05.1998 to
17.07.2007. The evidence of P.W.3 and 4 also does not
speak about accused having ill-treated and harassed the
P.W.2 on the pretext of she did not begot any child.
However, their claim in this regard appears to be at the
instance of P.W.2 when she started residing in her
parental house and there is absolutely no any evidence
earlier to the said date P.W.2 having complained before
her parents about harassing P.W.2 on the pretext that she
did not begot any child. The general assertion of P.W.2 to
4 that accused on assault by hands and driven out of the
matrimonial home is insufficient to attract the penal action
in terms of 323 of IPC. Therefore, there is every reason to
believe that allegation of accused ill-treating and harassing
complainant P.W.2 on the pretext she did not begot any
child is an afterthought only to make out a case for the
offence punishable under Section 498A of IPC.
24. The Courts below without appreciating the
evidence of P.W.2 to 4 in the light of the above referred
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CRL.RP No. 100054 of 2015
background and proceeded to record findings by relying on
the evidence of P.W.2 to 4 that the prosecution has proved
the charges leveled against accused. The evidence on
record with reference to incident and other attending
circumstances have not been taken into consideration by
both the Courts below and only on relying general
assertion proceeded to hold that the prosecution has
proved the charges leveled against them beyond all
reasonable doubt and said findings cannot be legally
sustained for the reasons recorded above. Therefore,
interference of this Court is required. Consequently,
proceed to pass the following:
ORDER
Revision petition filed by the appellant/accused is
hereby allowed.
The judgment of the first appellate Court on the file
of III Additional Sessions Judge, Belgaum, in criminal
appeal No.73/2012 dated 07.02.2015 which has confirmed
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CRL.RP No. 100054 of 2015
judgment of the trial Court on the file of JMFC II Court
Belgaum, in C.C.No.38/2008 are hereby set-aside.
Accused Nos.1 to 3 are acquitted for offences
punishable under Sections 498A and 323 of IPC.
The revision petition accused No.4 is abated.
The registry is directed to transmit the records with
copy of the judgment of trial Court.
(Sd/-)
JUDGE
AC/-
