Karnataka High Court

Nagaraj M vs State Of Karnataka on 2 May, 2025

Author: H.P.Sandesh

Bench: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 2ND DAY OF MAY, 2025

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.378/2017

BETWEEN:

NAGARAJ M
S/O MANJAPPA
MAJOR, DRIVER
S.N.NAGAR, NEW EXTENSION
PUKKAT NAGARA, 6TH CROSS
SAGAR - 577 401
                                              ... PETITIONER

              (BY SRI B N SHETTY, ADVOCATE)
AND:

STATE OF KARNATAKA
BY SAGAR TOWN POLICE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
                                             ... RESPONDENT

               (BY SMT. K P YASHODA, HCGP)

       THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
ORDER IN CRL.A.NO.10008/2016 DATED 30.01.2017 IN SO FAR
AS IT RELATES ONLY TO THE CONFIRMATION OF CONVICTION
AND SENTENCE UNDER SECTION 498A OF IPC ON THE FILE OF
                                     2



THE V ADDL. DISTRICT AND SESSIONS JUDGE (SITTING AT
SAGAR) AND THE ORDER PASSED BY THE PRL. CIVIL JUDGE (Jr.
Dn.) AND JMFC, SAGAR IN C.C.NO.224/2009 DATED 10.06.2016
AND ETC.


       THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 09.04.2025                THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:


CORAM:        HON'BLE MR. JUSTICE H.P.SANDESH

                              CAV ORDER

       This revision petition is filed challenging the judgment of

conviction     and   sentence   passed   by    the   Trial   Court     in

C.C.No.224/2009 dated 10.06.2016 and the confirmation of the

judgment of the in respect of Section 498A of IPC by the First

Appellate Court in Crl.A.No.10008/2016 dated 30.01.2017.


       2.      The factual matrix of the case of the prosecution is

that    the     complainant     -   Kasthuri   had     married       this

petitioner/accused on 25.04.1993 and after the marriage,

accused started ill-treating the complainant by physically and

mentally for one or the other reasons. On 05.04.2009 at about

10.00 p.m., the accused assaulted the complainant and pulled
                                       3



her hair and smash the head against the wall and gave the life

threat. Hence, a case was filed against the accused. The police

have registered the case, investigated the matter and filed the

charge-sheet.      The accused did not plead guilty and claims for

trial.   The complainant in order to prove her case, examined

herself as PW1 and also examined nine witnesses as PW2 to

PW10 and got marked the documents at Ex.P1 to P6.                      The

accused subjected to 313 statement and not led any defence

evidence.       The Trial Court having considered both oral and

documentary evidence placed on record convicted the accused

for the offence punishable under Section 498A and 506 of IPC

and sentenced to undergo rigorous imprisonment for a period of

one year for each offences with fine of Rs.5,000/- for each

offences. The said judgment of the Trial Court was challenged

before    the     First   Appellate       Court   by   the   accused    in

Crl.A.No.10008/2013 and the First Appellate Court having

reassessed the material on record allowed the appeal in part and

acquitted the accused for the offence punishable under Section

506 of IPC and confirmed the judgment of conviction and

sentence in respect of offence punishable under Section 498A of
                                 4



IPC.    Being aggrieved by the judgment of conviction and

sentence of both the Courts, the present appeal is filed before

this Court by the accused.


       3.   The main contention of the learned counsel for the

petitioner is that both the Courts have failed to consider the

material on record in a proper perspective while convicting the

accused for the offence punishable under Section 498A of IPC.

The Courts below erred in appreciating the fact that witnesses to

the incident are interested witnesses. Apart from the fact that

they are tutored and under the undue influence of the

complainant as she was the member of Sagar Nagara Sabha and

the witnesses deposed before the Court against the petitioner.

The Courts below erred in considering the evidence of PW8 and

PW9 who are not the witnesses sighted in the charge-sheet nor

they are subject to the investigation before the Investigating

Officer. It is also contend that the First Appellate Court ought to

have allowed the appeal in its entirety as the witnesses sighted

by the police have not supported the view point of the

complainant and the same is clear violation of principles of
                                 5



natural justice. Hence, it requires interference of this Court. The

counsel also would vehemently contend that even invoked the

penal provision of Section 498A of IPC, there is no ingredients

are found in the evidence of prosecution witnesses and hence,

the Courts below committed an error in convicting the accused

for the offence under Section 498A of IPC.


      4.    Per contra, the learned counsel appearing for the

State would vehemently contend that there are material in

respect of the offence punishable under Section 498A of IPC and

same has been appreciated by both the Courts and hence, not

committed any error and rightly answered point No.1 in coming

to the conclusion that the evidence of PW1 inspires the

confidence of the Court and she has categorically deposed that

accused started harassing her after 4 to 5 months of the

marriage and thereafter continued the harassment and subjected

her for cruelty and even abused in a filthy language and kicked

her and also smashed her head against the wall and dragged the

complainant and assaulted. The prosecution also relied upon the

evidence of PW2 and PW3 who are the circumstantial witnesses
                                  6



and she is the mother of PW1 and she reiterates the same and

PW3 also mahazar witness and PW4 is the eye-witness to the

incident and PW5 is a panch witness and PW6 is also eye-witness

to the incident.    The Trial Court rightly taken note of the

evidence of PW1 and PW2 and PW4 and PW6 and not committed

any error in appreciating the evidence. The First Appellate Court

also though reversed the finding of the Trial Court in respect of

Section 506 of IPC but rightly confirmed the judgment of the

Trial Court in respect of Section 498A of IPC and hence, it does

not requires any interference of this Court.


      5.    Having heard the learned counsel appearing for the

respective parties and also on perusal of the material on record,

the point that would arise for the consideration of this Court is:

      1.    Whether the First Appellate Court committed

            an error in confirming the judgment of the Trial

            Court for the offence punishable under Section

            498A of IPC and the finding of both the Trial

            Court and the First Appellate Court for the

            offence punishable under Section 498A is
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            erroneous     and   perverse   and   whether    it

            requires interference of this Court exercising

            the revisional jurisdiction?

      2.    What order?


Point No.1:

      6.    Heard   the    learned   counsel   appearing   for   the

respective parties and also on perusal of the material on record.

The scope of the revision is limited. Whether there is any

perversity in the finding of both the Courts, the same has to be

looked into.   This Court would like to refer the document of

Ex.P1(a).   Having considered the Ex.P1, it is very clear that

marriage was performed on 25.04.1993 and she is having three

daughters and also it is stated that the accused was cordial for

six months and thereafter, started abusing and assaulting and

insisting her to give divorce. It is also her evidence that she has

become a Member of the municipality and he started suspecting

her. That on 05.04.2009 at about 10.00 p.m., he came with an

influence of alcohol and abused her in a filthy language and

when she questioned, he hold her hair and assaulted smashing
                                  8



her head to the wall.      The said incident was witnessed by

Ganapathi, Shajira and Manjanna and pacified the galata.          The

panchanama was conducted in terms of Ex.P2.                   Further

statement was recorded in terms of Ex.P3. Ex.P3 is with regard

to the delay in lodging the complaint.          Ex.P4 is the marriage

invitation and Ex.P5 is the photograph of both of them. Ex.P6 is

the FIR.


      7.    Now, this Court has to consider the oral and

evidence   of witnesses. PW1         is   the   complainant and   she

reiterated the contents of the complaint in the oral evidence of

PW1 and this witness was subjected the cross-examination. In

the cross-examination, regarding the incident is concerned, she

says that accused assaulted on her head and kicked and

smashed her head against the wall and dragged her holding hair

and also locked the door and assaulted. But not sustained any

injury and even not sustained any injury when the accused

pressed her neck and also deposed that accused smashed her

head to all the walls but not shown the wall to the police when

they visited the house. It is also elicited in the cross-examination
                                 9



that she did not inform the said incident to the police and also

admits that police station was at the distance of 1½ k.m. When

the suggestion was made that no difficulty to go to the police

station, she says that auto was not available and she did not

give complaint since incident was taken place at 11.30 p.m. The

incident was witnessed by her children and the children brought

the neighbourers to pacify the galata but she informed the

incident to her mother over phone and thereafter also incident

was continued for about 45 minutes. The mother came on the

next day and took her to the hospital and complaint was given

on the next day in between 11.30 to 11.45 and also she did not

show any injuries to the police and she did not go to the hospital

for treatment and police recorded her statement and she has

signed the same and she got it typed the same and she did not

show the particular place to the police and police examined

entire house and she admits that Manjunatha and Shahida

belongs to their locality but admits that Manjunatha came to the

spot after ten minutes of the incident.    Six to seven persons

gathered to pacify the galata both of them belongs to different

caste and also she admits that she became as President of
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municipality. A suggestion was made that after becoming a

member and President of the municipality, sent the accused to

jail and the same was denied.


      8.    PW2 is the mother and she reiterates the evidence of

PW1. PW2 admits that accused was a auto driver.        Only when

the daughter discloses about the assault, she came to know

about the same. But she claims that she took her 2 to 3 times to

the hospital and also even taken to the police station and admits

that no panchayat was held and she cannot tell the date and

timings of the incident and she deposed that daughter called her

at 11.00 p.m.    The police did not send the daughter to the

hospital and she also not given any statement to the police and

admits that the accused only admitted the children to the school

till the complainant elected as member of the municipality and

also admits that after the election, her daughter earned

sufficient money. It is her evidence that she took the daughter

to the hospital on the next date and thereafter went to the police

station.
                                11



     9.    PW4 is the other witness and he says that when he

went to pacify the galata, accused abused him and he says that

accused pulled him and then assaulted her and witnessed the

incident. His house is after 4 to 5 houses of the complainant and

also deposed that at the time of incident, she was a councilor.

This witness was subjected to the cross-examination. In the

cross-examination he admits that the distance between his

house and the house of the complainant and accused is four

kilometer and the complainant is residing separately and he

cannot tell when she left the company of the husband and

unable to hear what was going on in the house of the accused

and he witnessed the incident of abuse and also assault and

admits that the complainant was the councilor of his area and

used to do his work.


     10.   PW3 and PW5 are the mahazar witnesses and they

are not material witnesses. PW6 is the another eye-witness to

the incident wherein she deposed that when she went to pacify

the galata, accused scolded her stating that same is not related

to her and thereafter accused started abusing the complainant
                                12



and she pacified the galata. In the cross-examination of PW6,

she admits that the accused and the complainant were not

quarreling with each other. The other witness is PW7 who is a

neighbour. PW7 deposed that the accused and the complainant

were not cordial and used to quarrel with each other. PW7 also

deposed that accused came and started abusing the complainant

and this witness was treated as hostile.         In the cross-

examination of PW7, it is elicited that when she standing near

her house, she cannot see what is happening in the house of the

complainant and the accused and she does not remember the

date of the incident and the complainant's daughter called her to

pacify the galata and it requires 5 minutes to go to the house of

the complainant and when she went to the spot, accused

stopped assaulting the complainant. But she admits that she did

not witnessed the assault. The other witness PW8 is a PSI and

he says about the lodging of the complaint and recording of

statement of the witnesses. In his cross-examination, he admits

that in connection with the dowry, harassing the complainant

was not found but he admits that 15 years prior to the incident,

they were cordial. The other witness is PW9 who is a daughter
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of the complainant and accused. She says that accused

assaulted her mother with the firewood and she was present on

the date of the incident and her mother sustained injury and she

also deposed that when she went to pacify the galata, accused

assaulted her also. It is suggested that she was tutored by her

mother and the same was denied.      The other witness is PW10

who is also a daughter of the complainant and accused and she

deposed that both the sisters were present at the time of the

incident.


      11.   Having considered the material on record, this Court

already pointed out that evidence cannot be re-assessed but if

any perversity is found, then, this Court can interfere with the

finding of the Courts below.   It is important to note that PW1

says that incident was taken place on 05.04.2009 and accused

assaulted her and smashed her head against the wall. It is also

important to note that with regard to the very incident is

concerned, though    deposed that accused kicked her         and

smashed her head against all the walls, but no injury is

sustained. It is important to note that PW1 says that she did not
                               14



go to the hospital and she went to the police station and gave

the complaint.    But the evidence of PW2 is contrary to the

evidence of PW1 wherein PW2 deposed that when she went to

the house of PW1, she took PW1 to the hospital and thereafter

went to the police station.


      12.   It is important to note that the prosecution mainly

relies upon the evidence of PW9 and PW10. According to PW1,

both the daughters were present at the time of the incident and

PW9 deposed that accused assaulted her mother with the

firewood and she sustained injury all over the body.     But no

evidence before the Court by PW1 that she had sustained the

injuries. Hence, the evidence of PW9 is contrary to the evidence

of PW1.     Hence, the evidence of PW9 does not inspire the

confidence of the Court. The other witness PW10 is also a

daughter of the complainant and accused and though she

deposed that accused smashed the head of PW1 against the

wall, her evidence is also contrary to the evidence of PW1.

Hence, it is clear that PW9 and PW10 are tutored witnesses

supporting the mother-PW1.
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      13.        No doubt, the prosecution mainly relies upon the

evidence of PW4 wherein he deposed that he witnessed the

incident    of    assault   and   abuse   made   by   accused   to   the

complainant.        But PW1 in her cross-examination categorically

admits that PW4 came to the spot after ten minutes of the

incident. Hence, it is clear that he was not present at the time

of the incident.       The prosecution also mainly relies upon the

evidence of PW6 wherein PW6 also claiming that she witnessed

the incident but in her cross-examination, she admits that both

of them were not quarreling. The other witness is PW7 and PW7

deposed that both of them were quarreling with each other but

in her cross-examination, she admits that she witnessed the

incident of abuse and assault but again admits that she did not

witnessed the assault made on PW1 and also deposed that in

order to go to the house of the complainant, it takes five

minutes from her house. But she says that when she went to

the spot, accused stopped the assault. Hence, the evidence of

PW7 also not inspires the confidence of the Court. Hence, with

regard to the incident is concerned, the very incident is doubtful
                                 16



since there is no any material on record to prove the case of the

complainant and contrary evidences are given and PW1 did not

go to the police station immediately and also she was a councilor

at the time of the incident and incident was taken place at 10.00

p.m. and the complaint was given on the very next day. Apart

from that the evidence of PW1 and PW2 are contradictory to

each other as well as the evidence of PW1 and PW9 and PW10

also contrary to each other since PW1 says that she did not go to

the hospital but PW2 says that she took PW1 to the hospital and

PW9 deposed that accused assaulted her mother with firewood

thus, PW1 sustained injuries but no injuries found on PW1 and

no wound certificate is also produced before the Court in this

regard and PW1 also deposed that she has not sustained any

injury and she did not go to the hospital also. Hence, the

material evidence is contrary to each other.


      14.   Having perused the judgment of the First Appellate

Court also it discloses that the First Appellate Court even did not

look into the record while confirming the judgment of the Trial

Court in respect of Section 498A of IPC. The First Appellate Court
                                 17



only taken note of the evidence of PW1 and PW2 and not

discussed the evidence of each of the witnesses while re-

appreciating the evidence and hence, the very approach of the

First Appellate Court is erroneous since except extracting the

offence punishable under Section 498A of IPC in paragraph 22

nothing is discussed and erroneously proceeded in confirming

the judgment of the Trial Court in respect of Section 498A of

IPC. Thus, there is no re-appreciation of evidence by the First

Appellate Court.   Hence, the very finding of both the Courts is

against the material on record in respect of Section 498A of IPC

is concerned.   In the absence of discussion with regard to the

material on record, if finding is given, it amounts to perversity

since the material on record does not inspire the confidence of

the Court with regard to the very incident of assault and

subjecting the complainant for cruelty.       It is emerged in the

evidence of Investigating Officer who conducted the investigation

that prior to becoming the member of the municipality by the

complainant, both the accused and the complainant were cordial

and records discloses that after she became the member of the

municipality,   differences   were   arisen   between   them   and
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according to PW1, the incident was taken place on 05.04.2009

and the same was not corroborated with the witness evidence

and though one of the eye-witness categorically admits that the

complainant was a member of the municipality and she was

attending his work, it is clear that this witness is an interested

witness. These aspects were not taken note of by both the

Courts.      Thus, the finding of both the Courts in respect of

Section 498A of IPC is perverse and not based on the material

on record and it requires interference of this Court exercising the

revisional jurisdiction. Hence, I answer the above point as

affirmative.


Point No.2:

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

following:

                                 ORDER
The revision petition is allowed.
The impugned judgment of confirmation of the
judgment of the Trial Court passed in
C.C.No.224/2009 dated 10.06.2016 in respect of
Section 498A of IPC by the First Appellate Court in
Crl.A.No.10008/2016 dated 30.01.2017 is set aside
and the judgment in respect of Section 506 of IPC is
confirmed. The judgment of conviction passed by the
Trial Court in C.C.No.224/2009 dated 10.06.2016 in
respect of Section 498A of IPC is also set aside.
Consequently, the accused/revisional petitioner is
acquitted for the offence punishable under Section