Karnataka High Court
Nanjundeshwara vs State By Sorba Police on 7 February, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1138 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1138 OF 2012
BETWEEN:
NANJUNDESHWARA
S/O KOTRAPPA SANGAPPA BALEGANOOR
AGED ABOUT 28 YEARS FINANCIER
R/O KAGINELE VILLAGE
BYADAGI TALUK
HAVERI DISTRICT.
...APPELLANT
Digitally signed by (BY SRI SHVIARAM R BHAT, FOR
LAKSHMINARAYANA
MURTHY RAJASHRI SRI PRUTHVI WODEYAR, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
STATE BY SORBA POLICE
SORABA
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE.
...RESPONDENT
(BY SMT. N ANITHA GIRISH, HCGP)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
DATED 27/9/2012 PASSED BY THE PRINCIPAL SESSIONS
JUDGE, SHIMOGA IN S.C.No.147/2010 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 306 OF IPC.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1138 of 2012
JUDGMENT
1. This appeal is filed by the appellant - accused,
praying to set-aside the judgment of conviction and order
of sentence dated 27.09.2012 passed in S.C.No.147/2010
by the Principal Sessions Judge, Shivamogga. The
appellant - accused has been convicted for the offence
under Section 306 of the Indian Penal Code, 1860 (for
short hereinafter referred to as 'IPC') and sentenced to
undergo rigorous imprisonment for a period of five years
and to pay fine of Rs.10,000/- and in default, to undergo
simple imprisonment for a period of two months. The Trial
Court has acquitted the appellant - accused of the offences
under Sections 3, 4 and 6 of the Dowry Prohibition Act,
1961 (for short hereinafter referred to as 'D.P.Act').
2. The factual matrix of the prosecution case is as
under;
CW.1 - Sri.S.Basavarajappa, (now deceased) is the
resident of Basavapura village in Sorab Taluk. He had two
daughters by name Shruthi and Shwetha. The marriage of
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Shruthi was scheduled with the appellant / accused -
Sri.Nanjundeshwara, son of Sri.Kotrappa Sangappa
Balaganoor of Kaginele village, Byadagi Taluk. At the time
of marriage negotiation, it was agreed to pay cash of
Rs.1,50,000/- and 100 grams of gold by means of dowry.
The marriage was scheduled on 14.11.2008 at Chowhan
Green Garden Chowltry, Hubli. Fifteen days prior to
5.11.2008, CW1 - complainant had paid the entire dowry
amount and had distributed the marriage invitation cards
to the relatives. In the intervening period, the appellant -
accused had gifted a mobile to Shruthi and both were
talking with each other over the mobile. Prior to Deepavali
festival, Shruthi informed the complainant that the
accused had taken her to Adarsha Hospital at Udupi along
with her friend Pramila for virginity test by suspecting her
chastity. Despite the advise given by the complainant, the
accused continued his attitude of suspecting her chastity
and had cautioned Shruthi not to inform the said fact to
her parents. It is further case of the prosecution that, on
4.11.2008, they had been to Shivamogga for purchasing
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clothes for the marriage. While they were in Shivamogga,
on seeing the message sent by Sri.Nanjunda to Shruthi's
mobile after 3.00 p.m. she was weeping. Later, on the
same day night, after talking with the appellant - accused,
Shruthi was in distressed state and did not have the
meals. Later on, unable to bear the harassment and
ill-treatment given by the appellant - accused, on
5.11.2008 at 8.00 a.m., she consumed poison and while
under treatment died at Shiralakoppa Government
Hospital. On enquiry, it came to the light that on
4.11.2008 at 15:57:32, the accused through mobile
No.9845046084 had sent a message like "Nanna
jeevanadinda doora hodare saku ninu. Ninna genekarana
jote jeevana poora awana jote malkonde irbahudu,
ninnanta hadaragitti mele nanna preeti aytalla chi'' to the
complainant's mobile phone which was being used by
Shruthi. So, daughter of the complainant being insulted
by the appellant - accused, has committed suicide by
consuming poison. On the complaint given by father of the
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deceased ie., CW1, a case came to be registered against
this appellant - accused.
3. After investigation, charge sheet came to be filed
against the appellant - accused for the offence under
Section 306 of IPC and Sections 3 and 4 of the D.P.Act.
After committal of the case, learned Sessions Judge has
framed the charge against this appellant - accused for the
offence under Section 306 of IPC and Sections 3, 4 and 6
of the D.P.Act.
4. In order to prove the charge, the prosecution has
examined fifteen witnesses as PWs.1 to 15 and got
marked the documents Exs.P1 to P16 and MOs.1 and 2.
The statement of the appellant - accused came to be
recorded under Section 313 of Cr.P.C. The Trial Court
after hearing the arguments on both sides, formulated the
points for consideration and after appreciating the
evidence on record, has passed the impugned judgment of
conviction and sentenced the appellant - accused for the
offence under Section 306 of IPC as noted above. The
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said judgment of conviction and order of sentence has
been challenged in this appeal.
5. Heard the arguments of learned counsel for the
appellant - accused and the learned High Court
Government Pleader for the respondent - State.
6. Learned counsel for the appellant - accused would
contend that the prosecution has not established that
mobile No.9845046084 is of the appellant - accused and
he was using the same. The Investigating Officer has not
collected the call detail records of the said mobile number
and also not collected the information regarding who is the
subscriber of the said mobile number from the service
provider. He contends that as per the evidence of PW8,
the said mobile number was used by the deceased and in
Ex.P13 - O.P.D chit of Adarsha Hospital, the said mobile
number is mentioned as mobile number of the deceased.
Therefore, the prosecution has failed to establish that the
appellant - accused has sent the SMS to the deceased.
He contends that the alleged suicide note - Ex.P6 does not
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contain any positive word, so as to instigate the deceased
to commit suicide. He contends that there is a discrepancy
in the evidence of PW5 regarding producing the death note
- Ex.P6 by her and the evidence of PW8 - classmate of the
deceased taking out the said death note from the bag of
the deceased. The hand writing in Ex.P6 has not been
proved to be of the deceased by comparing with the
admitted hand writing of the deceased. There is no
connecting evidence that PW13 - Dr.Chayalatha was a
visiting doctor to the Adarsha Hospital, Udupi and the
certificate issued by her as per Ex.P15 is on her letter
head and not on the letter head of the Adarsha Hospital.
He contends that the evidence on record is not sufficient
to hold that this appellant - accused has sent the SMS
which instigated the deceased to commit suicide. On this
contention, he places reliance on the following decisions:
"1. (2020) 10 SCC 200 reported in Gurucharan
Singh Vs. State of Punjab.
2. (2019) 10 SCC 188 reported in State of West
Bengal Vs. Indrajit Kundu and Others.
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3. (2001) 9 SCC 618 reported in Ramesh Kumar
Vs. State of Chhattisgarh.
4. (2019) 3 SCC 315 reported in M.Arjunan Vs.
State Represented by its Inspector of Police.
5. (2019) 17 SCC 301 reported in Ude Singh and
Others Vs. State of Haryana.
6. 1995 Supp (3) SCC 438 reported in Swamy
Prahaladdas Vs. State of M.P. and another.
7. (2002) 5 SCC 371 reported in Sanju Alias
Sanjay Singh Sengar Vs. State of M.P.
8. (2010) 1 SCC 707 reported in Amalendu Pal
Alias Jhantu Vs. State of West Bengal.
9. (2010) 12 SCC 190 reported in S.S.Chheena
Vs. Vijay Kumar Mahajan and another."
On these grounds, he prayed to allow the appeal and
acquit the appellant - accused.
7. Learned High Court Government Pleader for the
respondent - State argued that the Trial Court on proper
appreciation of the evidence on record, has rightly
convicted the appellant - accused. She has supported the
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reasons assigned by the Trial Court. She further argued
that the evidence of PWs.4 to 8, 13 and 14 is sufficient to
convict the appellant - accused for the offence under
Section 306 of IPC. On these grounds, she has sought for
dismissal of the appeal.
8. On the grounds made out and considering the
arguments advanced, the following point arises for my
consideration;
"Whether the Trial Court erred in convicting the
appellant - accused for the offence under
Section 306 of IPC?"
9. My answer to the above point is in the affirmative for
the following reasons;
The deceased Shruthi committed suicide by
consuming poison contained in MO.2 - poison bottle and
her death is suicide, is not in dispute. It is also not in
dispute that there were marriage negotiations and
marriage of the deceased Shruthi was fixed with the
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appellant - accused and the date of marriage was on
14.11.2008. The evidence of mother of the deceased ie.,
PW5 would go to establish that after fixing of the
marriage, the appellant - accused used to go to their place
and used to take the deceased out and used to spend time
with her on that day, he had visited several times and had
taken the deceased out.
10. The evidence of PW13 - Dr.Chayalatha, Ex.P13 -
O.P.D Chit, Ex.P14 - case sheet of Adarsha Hospital,
Ex.P15 - certificate issued by PW13 - Dr.Chayalatha and
the evidence of PW8 - friend and classmate of the
deceased would establish that there was a virginity test
conducted on the deceased in Adarsha Hospital and in the
test, the deceased was found virgin as her hymen was
found intact. The said virginity test was conducted on
15.10.2008. The appellant - accused has disputed that he
got conducted virginity test, but evidence of PW8 - friend
and classmate of the deceased and PW13 - Dr.Chayalatha
who has identified the appellant - accused, as having
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brought the deceased for virginity test would establish that
the appellant - accused took the deceased to Adarsha
Hospital for the virginity test.
11. In the said virginity test conducted on the deceased,
it is found that the deceased is virgin. Therefore, there is
no question of suspecting the chastity of the deceased by
the appellant - accused. It is the case of the prosecution
that a message has been received in the mobile of CW1
from mobile number 9845046084. The said mobile of CW1
has been seized under mahazar - Ex.P4 from the spot.
The said mobile is at MO.1 and its number is 9902206041
and it is in the name of CW1 - Sri.Basavarajappa - father
of the deceased. CW1 has not been examined since he
has expired prior to commencement of trial. The call
details record of the said mobile number 9902206041 is at
Ex.P16. The said Ex.P16 indicates that the said mobile
number is in the name of CW1 - Sri.Basavarajappa. In
the complaint - Ex.P1, it is stated by CW1 that the
deceased was using his mobile. The mobile which is
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seized from the spot under mahazar - Ex.P4 is having the
same number ie, 9902206041. The said message received
in the mobile number 9902206041 from mobile number
9845046084 on 04.11.2008 at 15.57.32 hour, reads as
under;
"Nanna Jeevanadinda doora hodare saku ninu.
Ninna Genekarana jote jeevana poora awana jote
malkonde irbohudu, ninnanta hadaragitti mele
nanna preeti aytalla chii."
Even though the text is in English, but it is typed in
Kannada language, which can be read as under;
"£À£Àß fêÀ£À¢AzÀ zÀÆgÀ ºÉÆÃzÀgÉ ¸ÁPÀÄ ¤Ã£ÀÄ. ¤£Àß UÉuÉPÁgÀ£À
eÉÆvÉ fêÀ£À ¥ÀÆgÀ CªÀ£À eÉÆvÉ ªÀÄ®PÉÆAqÉ EgÀ¨ÉÆÃzÀÄ, ¤£ÀßAvÀºÀ
ºÁzÀgÀVwÛ ªÉÄÃ¯É £À£Àß ¦æÃw DAiÀÄÛ®è aÃ."
12. It is the case of the prosecution that, on reading this
message, the deceased was upset and she committed
suicide and the appellant - accused has sent the said
message to the deceased and abetted the deceased to
commit suicide. The said text message has been received
in the mobile of CW1, which was used by the deceased,
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from mobile number 9845046084, is stated to be of the
appellant - accused. In Ex.P13 - O.P.D Chit of Adarsha
Hospital, the said mobile number is mentioned as mobile
number of the deceased. PW8 - friend and classmate of
the deceased has stated in her cross examination that the
mobile number of the deceased Shruthi is 9845086084.
PW14 - uncle of the deceased stated that the appellant -
accused has sent message to the mobile of the deceased
from mobile number 9845046084 which was in the name
of one Deepak. The Investigating Officer has not
conducted any investigation regarding, in whose name,
the said mobile number 9845046084 is standing, whether
it is of Sri.Deepak or it is of the appellant - accused and
who is the subscriber of that mobile number 9845046084.
13. In view of the above, it is noted that, the evidence of
PW8 that the mobile number of the deceased is
9845046084 and the evidence of PW14 that the mobile
number 9845046084 is in the name of Sri.Deepak and in
Ex.P13 - O.P.D Chit of Adarsha Hospital, it is stated that
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the said mobile number 9845046084 is of the deceased
Shruthi. Therefore, there is no connecting evidence that
the said text message sent from 9845046084 is sent by
the appellant - accused to the mobile used by the
deceased standing in the name of her father.
14. Ex.P6 is the death note said to have been written by
the deceased. PW8 - classmate of the deceased, PW5 -
mother of the deceased, PW14 - uncle of the deceased
have identified the hand writing in Ex.P6, as that of the
deceased. In Ex.P6 praising words are used by the
deceased towards the appellant - accused. There are no
contents in Ex.P6 to show that this appellant - accused
instigated her to commit suicide. Ex.P6 only contains that
this appellant - accused has suspected her character. In
Ex.P6, the deceased has praised the appellant - accused
and wished him good life, health and she wished to be his
partner and nothing else. Therefore, considering all these
aspects, the evidence on record would not establish that
this appellant - accused instigated the deceased to
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commit suicide. The Trial Court has erred in holding that
the appellant - accused instigated the deceased to commit
suicide and convicted the appellant - accused for the
offence under Section 306 of IPC. In the result, the
following;
ORDER
(i) The appeal is allowed. The impugned
judgment of conviction and order of sentence
passed in S.C.No.147/2010 by the Principal
Sessions Judge, Shivamogga is set-aside. The
appellant - accused is acquitted of the offence
under Section 306 of IPC.
(ii) In view of acquittal of the appellant -
accused, the order dated 25.01.2024 is recalled
and accordingly I.A.No.1/2024 is allowed.
(iii) Issue intimation to the Trial Court
regarding recall of the order dated 25.01.2024.
Sd/-
JUDGE
GH
