Karnataka High Court
B H Shanthamma vs Y Jayappa on 8 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1112 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1112 OF 2013
BETWEEN:
B H SHANTHAMMA
W/O Y JAYAPPA
AGED ABOUT 39 YEARS
HOUSE HOLD AND STUDYING IN
S.J.M SCHOOL OF NURSING COLLEGE
CHITRADURGA
R/O KODAGAVALLI VILLAGE
HIREGUNTANUR HOBLI
CHITRADURGA TALUK - 577 501.
...APPELLANT
(BY SRI SHASHIDHARA R, ADVOCATE)
AND:
1. Y JAYAPPA
S/O LATE YALLAPPA
Digitally signed by AGED ABOUT 59 YEARS
LAKSHMINARAYANA AGRICULTURIST.
MURTHY RAJASHRI
Location: HIGH
COURT OF 2. RENUKAMMA
KARNATAKA
W/O Y JAYANNA
AGED ABOUT 28 YEARS
COOLIE.
BOTH ARE R/O SONDEKOLA AND
HALIYUR VILLAGE, HIREGUNTANUR HOBLI
CHITRADURGA TALUK - 577 501.
3. OBAIAH
FATHER NAME NOT KNOWN
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CRL.A No. 1112 of 2013
AGE 69 YEARS
R/O HALIYUR VILLAGE
HIREGUNTANUR HOBLI
CHITRADURGA TALUK - 577 501.
...RESPONDENTS
(BY SRI SRINIVASA BABU, ADVOCATE FOR R1
V/O DTD. 16.06.2015, SERVICE OF NOTICE TO R2
IS HELD SUFFICIENT. V/O DTD. 23.10.24,
APPEAL AGAINST R3 IS DISMISSED AS ABATED)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED
18.9.2013 PASSED BY THE PRINCIPAL C.J. AND J.M.F.C.,
CHITRADURGA IN C.C.No.1289/2005 - ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 494 AND 109 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the complainant challenging
the judgment of acquittal dated 18.09.2013 passed in
C.C.No.1289/2005 by the Principal Civil Judge and J.M.F.C,
Chitradurga, whereunder, respondent Nos.1 to 3 have
been acquitted of the offences punishable under Sections
494 and 109 of the Indian Penal Code, 1860 (for short
hereinafter referred to as 'IPC').
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2. The factual matrix of the case of the complainant in
brief is as under;
The complainant namely Smt.B.H.Shanthamma is
the legally wedded wife of respondent No.1 - accused
No.1 and their marriage came to be solemnized on
21.12.1994 at S.J.M.Samudaya Bhavan, Chitradurga
according to the customs and usages prevailing in their
community. The complainant and respondent No.1 lived
together and out of their wedlock, they begot two sons by
names Raghavendra and Sri.Shashidhara. After lapse of
three years, respondent No.1 - accused No.1 started
harassing the complainant physically as well as mentally.
Respondent No.1 - accused No.1 has thrown the
complainant out of the matrimonial home situated at
Sondekola village and therefore, the complainant started
residing in the rented house of one Sri.Chandrappa of
Sondekola village. Respondent No.1 - accused No.1 had
instituted matrimonial case in M.C.No.6/2003 seeking
decree of divorce by making false and untenable
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allegations against the complainant. That, on 30.05.2004,
at Rangaswamy temple at Ganjigatte village, Chitradurga
taluk, at the instigation of the other accused, accused No.1
had taken accused No.2 as his second wife during the
subsistence of marriage with accused No.1 and the
complainant. The accused persons have committed the
offences under Sections 494, 495, 496 and 109 of IPC.
The complainant came to know of the fact of second
marriage of accused No.1 through her relative and
thereafter, she enquired with the parents of accused No.2
and collected details regarding the marriage and filed the
complaint. The learned Magistrate has recorded the sworn
statement of the complainant and taken cognizance of the
offences punishable under Sections 494 and 109 of IPC
against accused Nos.1 to 4. Charge came to be framed
against accused Nos.1 to 4 for the offences under Sections
494 and 109 of IPC. The accused not pleaded guilty.
3. The complainant, in order to prove the charge has
examined herself as PW1 and got examined four witnesses
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as PWs.2 to 5 and got marked the documents as Exs.P1 to
P8 and Exs.C1 to C3. Statement of the accused persons
came to be recorded under Section 313 of Cr.P.C.
Accused No.4 died during the pendency of the case before
the Trial Court and case against him came to be abated.
The learned Magistrate, after hearing the arguments on
both sides, has formulated the points for consideration and
thereafter, passed the impugned judgment of acquittal,
acquitting accused Nos.1 to 3 who are respondent Nos.1
to 3 herein for the offences under Sections 494 and 109 of
IPC. The said judgment of acquittal has been challenged
in this appeal by the complainant.
4. Heard learned counsel for the appellant and learned
counsel for respondent Nos.1 and 2. Respondent No.3 -
accused No.3 died during the pendency of this appeal and
case against him came to be dismissed as abated.
5. Learned counsel for the appellant - complainant
would contend that PW2 is an eye witness to the second
marriage of accused No.1 with accused No.2 and she has
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deposed regarding the said marriage. The evidence of
PW1 establishes marriage of accused No.1 with PW1 -
complainant which took place on 21.12.1994 and they
begot two sons out of their marriage. The evidence of
PW4 - doctor would indicate that accused No.2 gave birth
to a male child and name of the father is entered in the
hospital records as Sri.Jayappa. The said Sri.Jayappa is
accused No.1 and accused No.2 gave birth to the said child
Bharath. He further submits that Ex.P4 is the birth
certificate of a male child and the date of birth is
02.04.2005 and name of the mother is Smt.Renukamma
and name of the father is mentioned as Sri.Jayappa. The
said Sri.Jayappa is accused No.1. The said birth of a male
child to accused Nos.1 and 2 would itself indicate that
accused No.1 has married accused No.2 and they led
marital life. The evidence of PW3 - Anganawadi Worker
would indicate that male child of accused Nos.1 and 2
attending Anganawadi Centre and Ex.C1 - Register of
attendance of Anganawadi Centre would indicate that
Bharath is son of Sri.Jayappa which is at Ex.C1(a). He
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further contends that Ex.C2 is the ration distribution
detail, wherein name of Bharath is at Sl.No.13 which is at
Ex.C2(a), wherein his mother's name is mentioned as
Smt.Renukamma ie., accused No.2. He further submits
that the evidence of PW4 - doctor and Register of the
District hospital, Chitradurga - Ex.C3 would indicate that
accused No.2 - Smt.Renukamma was admitted to the
hospital and gave birth to a male child, wherein,
Smt.Renukamma is mentioned as wife of Sri.Jayappa. The
said Sri.Jayappa is accused No.1. He submits that PW5 is
the Priest working in Rangaswamy temple, Ganjigatte and
his evidence would establish the marriage of accused No.1
with accused No.2. He is also an eye witness to the said
marriage. He further submits that the accused have not
denied the second marriage in the cross examination of
the complainant's witness. There is no cross examination
of PW3 - Anganawadi Worker. Without considering all
these aspects, the learned Magistrate has erred in
acquitting accused Nos.1 to 3. On these grounds, he
prayed to allow the appeal and convict respondent Nos.1
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and 2 - accused Nos.1 and 2 for the offences under
Sections 494 and 109 of IPC.
6. Learned counsel for respondent Nos.1 and 2 would
contend that the identity of Sri.Jayappa whose name is
mentioned in Ex.P4 - birth certificate, Ex.C1 - Register of
attendance of Anganawadi Centre and Ex.C3 - extract of
Register of the District Hospital, Chitradurga is in dispute
as name of accused No.1 is Sri.Jayanna and not
Sri.Jayappa. He submits that there is a contradiction in
the evidence of PWs.2 and 5 with regard to the time of
marriage. PW2 is the relative of PW1 and therefore, her
evidence is not trustworthy. Even though PW2 is alleged to
be present at the second marriage, did not stop the
marriage even though she is related to PW1, which itself
would indicate that her evidence is not trustworthy. Even
PW2 has not informed PW1 about the second marriage
immediately and she intimated after three days of the
alleged second marriage. PW1 is not an eye witness to
the alleged second marriage. PW2 herself is the second
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wife of her husband. There are criminal cases registered
against PW1. The matrimonial case filed by accused No.1 -
respondent No.1 seeking divorce against PW1 came to be
decreed and the allegation of illicit relationship came to be
proved. The said matrimonial case came to be filed on
28.02.2003. As the matrimonial case has been filed, to
take revenge, the complainant - PW1 has filed a false
complaint against the accused persons. There is nothing
on record to show that Sri.Jayanna and Sri.Jayappa are
one and the same persons. The Purohith who has
performed the alleged marriage of accused No1 with
accused No.2 has not been examined. The ceremonies of
marriage was not proved. PW5 has not identified accused
No.2 as the lady who was present at the time of marriage
in the temple. PW5 has not stated regarding performing
of pooja by brother of PW2 on that day in the temple prior
to their marriage. He submits that considering all these
aspects, the learned Magistrate has rightly acquitted the
accused persons. With this, he prayed to dismiss the
appeal.
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7. Having heard the learned counsels, the Court has
perused the impugned judgment and the Trial Court
records.
8. Considering the grounds raised and urged, the
following point arises for consideration;
"whether the Trial Court has erred in acquitting
respondent Nos.1 to 3 of the offences punishable
under Sections 494 and 109 of IPC?"
9. My answer to the above point is in the negative, for
the following reasons;
PW1 is the complainant, PW2 - Smt.Shashikala is an
eye witness to the second marriage, PWs.3 and 4 are the
officials who have produced Exs.C1 to C3. PW5 -
Sri.Rajappa is the Priest who was present at the time of
the alleged marriage. There is no dispute with respect to
marriage of accused No.1 with the complainant - PW1.
Accused No.1 has admitted that the complainant is legally
wedded wife and two sons were born out of that marriage.
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The evidence of PWs.1 and 2 coupled with Ex.P1 - printed
marriage invitation card, itself would establish the
marriage of accused No.1 with the complainant and it was
solemnized on 21.12.1994. The said aspect itself would
establish that the complainant - PW1 is legally wedded
wife of accused No.1 - respondent No.1. It is also not in
dispute that at the time of filing the complaint, the
marriage between the complainant - PW1 and accused
No.1 - respondent No.1 was subsisting and it was not
dissolved by decree of divorce. At the time of filing the
complaint in M.C.No.6/2003 by accused No.1 against the
complainant - PW1 seeking dissolution of marriage filed
under the provision of Hindu Marriage Act, 1955 was
pending. All these aspects would establish that the
complainant is the legally wedded wife of accused No.1 -
respondent No.1.
10. It is the evidence of PW2 that on 30.05.2004 she
went to Ganjigatte village to attend the marriage of her
brother and at about 8.00 am, she went to Rangaswamy
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temple along with her brother to perform pooja and she
noticed accused No.1 tying thaali to accused No.2 and at
that time, relatives of accused Nos.1 and 2 were present
at the temple. According to PW2, by chance she went to
Rangaswamy temple and found accused No.1 tying thaali
to accused No.2. She has not spoken regarding any
rituals performed at the time of tying the thaali. PW2 is
the close relative of PW1 - complainant.
11. PW5 has stated in his evidence that he is the Priest
of Rangaswamy temple situated at Ganjigatte village and
one Sri.Prakash came to his house and took him to temple
for the purpose of performing pooja. It is his further
evidence that when he was performing pooja, he suddenly
found that accused No.1 had made arrangements of
marriage along with the other persons. PW5 has not
identified accused No.2 as the bride of the marriage
alleged to have been solemnized on that day. It is the
evidence of PW5 that on that day, the temple was locked
and he opened the lock at 9.00 am. However, the
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evidence of PW2 would indicate that temple was opened at
8.00 am and she went there along with her brother to
perform pooja. PW2 has stated that accused No.1 tied
thaali to accused No.2 at about 9.00 am. PW5 has
deposed that marriage of accused No.1 took place at
about 11.00 am and at that time, he went out of the
temple. Considering these aspects, there are material
contradictions with regard to the timings of the alleged
marriage. Considering the evidence of PW5, it is clear that
he has not performed the alleged marriage of accused
No.1 with accused No.2. PWs.2 and 5 have not deposed
regarding the rituals performed at the time of marriage.
Therefore, the evidence of PWs.2 and 5 are not helpful to
the complainant to establish the marriage of accused No.1
with accused No.2 and its solemnization.
12. It is the case of the complainant that out of the
wedlock of accused No.1 with accused No.2, accused No.2
gave birth to a male child. PW4 - Dr.Nagarajanaika has
operated accused No.2 at the time of delivery and deposed
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that one Smt.Renukamma, wife of Sri.Jayappa of
Sondekola village was admitted to the hospital on
02.04.2005 and she gave birth to a male child and he has
produced Exs.C2 and C3 - case sheets. On perusal of
Exs.C2 and C3, it is clear that one Smt.Renukamma gave
birth to a male child on 02.04.2005 and father of male
child is Sri.Jayappa. In Ex.C3, complete address of the
accused persons is not mentioned. Accused No.1 -
respondent No.1 is Sri.Y.Jayanna, son of Sri.Yellappa. In
Ex.C3 - husband's name of Smt.Renukamma is mentioned
as Sri.Jayappa. There is lot of difference in mentioning the
name of accused No.1 - respondent No.1 in Exs.C1 and
C3.
13. PW3 is the Anganawadi Worker and her evidence
would indicate that male child of accused Nos.1 and 2 has
been admitted to the Anganawadi Centre. PW3 had
produced Exs.C1 and C2 and she has not been cross
examined by the accused persons. Exs.C1 and C2 are
with respect to a male child by name Bharath, S/o
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Sri.Jayappa. Ex.C2 contains name of mother of Bharath
as Smt.Renukamma. In Exs.C1 and C2 full names of
parents of said Bharath is not mentioned. Name of father
of Bharath is shown as Sri.Jayappa. Accused No.1 is
Sri.Jayanna. In the complaint - Ex.P6, it is nowhere stated
that accused No.1 - Sri.Y.Jayanna is also called by name
Sri.Jayappa. Considering all these aspects, there are no
grounds for setting aside the well reasoned judgment of
acquittal passed by the Trial Court. In the result, the
following;
ORDER
The appeal is dismissed. The acquittal of
respondent Nos.1 and 2 for the offences under Sections
494 and 109 of IPC, by judgment dated 18.09.2013
passed in C.C.No.1289/2005 by the Principal Civil Judge
and J.M.F.C, Chitradurga is affirmed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
