[Cites 11, Cited by 0]
Karnataka High Court
Smt Rukshana Khanum vs Sri Abdul Bashid on 11 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 736 of 2018
C/W CRL.A No. 1988 of 2017
CRL.A No. 936 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.736 OF 2018
C/W
CRIMINAL APPEAL NO.1988 OF 2017
CRIMINAL APPEAL NO.936 OF 2018
IN CRL.A NO.736/2018:
BETWEEN:
1. SMT. RUKSHANA KHANUM
W/O. ABDUL BASHEED
AGED ABOUT 35 YEARS
RESIDING AT NANJANGUD
MYSURU DISTRICT-571 301.
Digitally signed ...APPELLANT
by DEVIKA M
Location: HIGH (BY SRI. N.S.SAMPANGI RAMAIAH, AMICUS CURIAE)
COURT OF
KARNATAKA
AND:
1. SRI. ABDUL BASHID
S/O. ABDUL GAFAR
AGED ABOUT 44 YEARS
RESIDING AT NO.7/23
HOSAKURUBARA BEEDHI
KOLLEGAL TOWN
CHAMARAJANAGARA DISTRICT-571 440.
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CRL.A No. 736 of 2018
C/W CRL.A No. 1988 of 2017
CRL.A No. 936 of 2018
HC-KAR
2. ABDUL GAFAR
S/O. LATE ABDUL NOOR
AGED ABOUT 73 YEARS
3. SMT. RAFIYA BEGUM
W/O. LATE ABDUL GAFAR
AGED ABOUT 59 YEARS
THE RESPONDENT NOS.2 AND 3 ARE
RESIDING AT NO.45
HOSAKURUBARA BEEDHI
KOLLEGAL TOWN
CHAMARAJANAGARA DISTRICT-571 440.
4. THE STATE OF KARNATAKA
KOLLEGALA TOWN POLICE STATION
CHAMARAJANAGARA DISTRICT
REPRESENTED BY ITS SPP.
...RESPONDENTS
(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR
SRI. KARIAPPA N.A., ADVOCATE FOR R1 AND 3;
SMT. RASHMI JADHAV, ADDL. SPP FOR R4;
VIDE ORDER DATED 22.04.2024,
APPEAL AGAINST R2 STANDS ABATED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CR.P.C PRAYING TO MODIFY THE JUDGMENT DATED
23.11.2017 PASSED BY THE COURT OF THE ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA
(SITTING AT KOLLEGALA) IN S.C.NO.32/2014 AND PUNISH
THE ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 307 OF IPC AND THE ACCUSED NOS.2 AND 3 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 307 AND
498(A) OF IPC.
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CRL.A No. 736 of 2018
C/W CRL.A No. 1988 of 2017
CRL.A No. 936 of 2018
HC-KAR
IN CRL.A NO.1988/2017:
BETWEEN:
1. ABDUL BASHID
S/O ABDUL GAFAR
AGED ABOUT 40 YEARS
WORKING AS WELDER
R/AT KONGALAKERE
DOOR NO.7/23
HOSAKURUBARA BEEDI
KOLLEGALA TOWN-571 440.
...APPELLANT
(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR
SRI. KARIAPPA N.A., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY KOLLEGALA TOWN POLICE
STATION, KOLLEGALA
CHAMARAJANAGARA DISTRICT-571 111
REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR.
...RESPONDENT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED
23.11.2017 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT
KOLLEGALA) IN S.C.NO.32/2014 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 307 R/W SECTION 34 OF
IPC.
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CRL.A No. 736 of 2018
C/W CRL.A No. 1988 of 2017
CRL.A No. 936 of 2018
HC-KAR
IN CRL.A NO.936/2018:
BETWEEN:
1. THE STATE BY
KOLLEGALA TOWN POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
...APPELLANT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
AND:
1. ABDUL BASHID
S/O ABDUL GAFAR
AGED ABOUT 44 YEARS
R/O KONGALAKERE
DOOR NO.7/23
HOSAKURUBARA BEEDI
KOLLEGALA TOWN-571 401.
...RESPONDENT
(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR
SRI. KARIAPPA N.A., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO
FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER OF
DATED 23.11.2017 PASSED BY ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT
KOLLEGALA) IN S.C.NO.32/2014 THEREBY ACQUITTING
THE RESPONDENT NO.1/ACCUSED NO.1 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 307 OF IPC.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 736 of 2018
C/W CRL.A No. 1988 of 2017
CRL.A No. 936 of 2018
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard learned counsel for the appellant-accused in
Crl.A.No.1988/2017, learned Amicus Curiae for the appellant-
complainant in Crl.A.No.736/2018 and learned Additional
Special Public Prosecutor for the State in Crl.A.No.936/2018 as
against the conviction and acquittal.
2. The factual matrix of the case of the prosecution is
that marriage of the husband and wife was solemnized in 2002.
That on 20.09.2013 at about 9.30 a.m., accused No.1 is alleged
to have forcibly administered mosquito repellent liquid
(Goodknight and Mortein) into the mouth of P.W.1 by closing
her nose/nostrils with an intention to eliminate her
permanently. The background of this incident is that P.W.1
was given in marriage to accused No.1 about 14 years prior to
this incident and thereafter, accused No.1 and P.W.1 were
living in their matrimonial home at Kollegala Town. The
accused No.1 was in a habit of doubting fidelity/character of his
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wife and frequently suspected her having illicit relationship and
used to treat her with cruelty both physically and mentally and
was locking her in a room/house to ensure that she does not
come in contact with any of his family members/outsiders.
3. In this background of the matter, on the previous
day of the incident, when C.W.1 was cleaning the dining table
after dinner, the accused No.1 is said to have picked up a
quarrel with her stating that she was trying to entice his male
family members and provoked her to commit suicide which led
to administer Goodknight and Mortein liquid. It is also the
allegation that accused Nos.2 and 3 being the parents of
accused No.1 were always mute spectators to the cruelty
meted out to her by accused No.1 and on several occasions,
accused Nos.2 and 3 have provoked accused No.1 to
intensify/inflict cruelty by accused No.1, more so in respect of
getting money from the parents of P.W.1, since accused No.1
decided to start a new/expand his business. Hence, invoked the
offence punishable under Sections 498(A) and 307 read with
Section 34 of IPC. The police based on the statement of the
victim as per Ex.P1 registered the case, investigated the matter
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and filed the charge sheet. The accused persons were secured
and they were on bail and accused did not plead guilty and
claims trial.
4. The prosecution in order to substantiate their case
examined P.W.1 to P.W.12 and also got marked documents
Exs.P1 to Ex.P8 and M.Os.1 and 2. The Trial Judge having
closed the evidence of prosecution recorded the statement of
accused under Section 313 of Cr.P.C. But, accused denied the
incriminating evidence put to their mouth and not led any
defence evidence.
5. The Trial Court having considered both oral and
documentary evidence of the prosecution witnesses comes to
the conclusion that it is not a case for invoking the offence
under Section 307 of IPC and the fact that accused No.1
forcefully administered Goodknight and Mortein into the mouth
of P.W.1 by closing her nose/nostrils with an intention to
eliminate her permanently was not accepted and acquitted the
accused Nos.2 and 3 for the offence punishable under Section
498(A) and 307 read with Section 34 of IPC and acquitted
accused No.1 for the offence punishable under Section 307
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read with Section 34 of IPC. However, the Trial Court taking
note of the material available on record and cruelty meted out
to P.W.1 comes to the conclusion that there is a case against
accused No.1 and invoked the offence under Section 498(A)
and convicted accused No.1 for the said offence and imposed
simple imprisonment for a period of three years and to pay fine
of Rs.10,000/- to victim P.W.1. Being aggrieved by the order of
conviction, Crl.A.No.1988/2017 is filed before this Court.
6. Learned counsel appearing for the appellant-
accused No.1 in Crl.A.No.1988/2017 would vehemently contend
that though the Trial Court disbelieved the case of prosecution
with regard to the offence under Section 307 of IPC, but
committed an error in relying upon the evidence of P.W.1 with
regard to cruelty is concerned. The counsel would vehemently
contend that there was incompatibility in between the appellant
and P.W.1 and the same will not amount to cruelty. The
counsel also vehemently contend that the appellant is not a
literate and P.W.1 is a graduate and had completed her
computer course training and due to this reason itself the
incompatibility was found between the accused and P.W.1. The
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counsel would submit that marital discord or incompatibility of
temperament in between the spouse cannot be treated as
cruelty. The act of cruelty must be intentional or willful with an
intention to harass and pester her wife to commit suicide. The
counsel also vehemently contend that having noticed that
P.W.1 was pretending that she has consumed Goodknight and
Mortein informed the accused and immediately, the accused
himself rushed to the spot and taken her to the hospital and no
dispute with regard to the fact that accused himself shifted her
to the hospital. The counsel also would vehemently contend
that P.W.1 pretended as if she had consumed the poisonous
substance. It is also contended that the evidence of P.W.8-
Doctor is also very clear that no such material with regard to
consumption of Goodknigt and Mortein is concerned and the
evidence of P.W.8 is also very clear and the same has been
appreciated by the Trial Court while rightly coming to the
conclusion that it was not administered by the accused.
However, the Trial Court committed an error in invoking
Section 498(A) of IPC against the appellant. The counsel also
vehemently contend that P.W.4-father-in-law, who is
economically sound was insisting his daughter to visit his house
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very often and her ornaments were taken by him and regarding
this some differences developed. The appellant was also
insisting his wife to follow religious practices and to remain at
home which was not liked by P.W.1. Hence, a false allegation is
made that she was confined in a room and not allowed to move
out and the same is also exaggerated by the prosecution. The
counsel would submit that independent witnesses, who have
been examined as P.W.7 and P.W.9 have denied any
panchayath held regarding quarrel between P.W.1 and
appellant and they have not supported the case of prosecution.
When the Trial Court comes to the conclusion that P.W.7 and
P.W.9 have not supported the case of prosecution, ought to
have come to the conclusion that there is no material before
the Court to come to a conclusion that appellant meted out
cruelty on P.W.1. Hence, it interference of this Court to acquit
the accused No.1 for the offence punishable under Section
498(A) of IPC.
7. Per contra, learned Amicus Curiae appearing for the
appellant-complainant in Crl.A.No.736/2018 would vehemently
contend that the Trial Court committed an error in acquitting
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the accused for the offence punishable under Section 307 of
IPC and also acquitting accused Nos.2 and 3 for the offence
punishable under Sections 498(A) and 307 read with Section 34
of IPC and proceeded in an erroneous approach convicting
accused No.1 only for the offence under Section 498(A) of IPC.
It is contended that the learned Trial Judge failed to consider
the fact that to constitute an offence under Section 498(A) of
IPC, it is sufficient that if the husband or any of his relatives by
any willful conduct of such a nature, which is likely to cause
grave injury or danger to life, limb or health of the woman. In
the instant case, it is the specific allegation by the appellant
that accused No.1 was treating her with cruelty by casting
aspirations on her character and constantly demanding for
dowry. He would also vehemently contend that though in the
complaint at Ex.P1 it is not specifically mentioned with regard
to dowry, but it is very clear that both the husband and also in-
laws were insisting her to get gold ornaments from the house
of her parents, that too, in order to expand the business. He
also vehemently contend that the Trial Court committed an
error in acquitting accused Nos.2 and 3, when specific
allegation is made in the complaint Ex.P1 as well as when
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P.W.1 categorically deposed the same and also father and
mother, who have been examined as P.W.4 and P.W.5 also
reiterated with regard to forcing her to get the gold documents.
He would further submit that P.W.6-maternal uncle also
supported the case of the prosecution and even though
panchayathdars P.W.7 and P.W.9 have not supported the case
of prosecution, but the Trial Court committed an error in
acquitting the accused persons. Hence, it requires interference
of this Court to convict accused Nos.1 to 3 for the offence
punishable under Sections 498(A) and 307 read with Section 34
of IPC.
8. Learned Additional Special Public Prosecutor for the
appellant-State in Crl.A.No.936/2018 would vehemently
contend that the Trial Court committed an error in acquitting all
the accused for the offence punishable under Section 307 of
IPC. She would vehemently contend that the Trial Court not
considered the material available on record in a proper
perspective and not appreciated both oral and documentary
evidence of the prosecution witnesses and committed an error
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and it requires interference of this Court to reverse the findings
in respect of the offence under Section 307 of IPC.
9. Having heard respective counsels appearing for the
appellants and also learned counsels appearing for the
respondents in all the appeals, the points that would arise for
consideration of this Court are:-
(i) Whether the Trial Court committed an error in
acquitting accused Nos.1 to 3 for the offence
punishable under Section 307 of IPC and
acquitting accused Nos.2 and 3 for the
offence punishable under Section 498(A) of
IPC as contented by learned counsel for the
appellant-complainant as well as learned
Additional Special Public Prosecutor the State
and whether it requires interference of this
Court?
(ii) Whether the Trial Court committed an error in
convicting accused No.1 for the offence
punishable under Section 498(A) of IPC and
whether it requires interference of this Court?
(iii) What order?
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Point Nos.(i) and (ii):
10. Having heard respective counsels for the appellants
and respondents, we have given anxious consideration to both
oral and documentary evidence available on record. Having
considered material available on record, no dispute with regard
to the fact that marriage between P.W.1 and accused No.1 was
solemnized in the year 2002. It is also important to note that
after acquitting accused Nos.2 and 3, accused No.2 also passed
away. Hence, the appeal against accused No.2 is abated. Now,
this Court has to consider the material only against accused
Nos.1 and 3. The accused No.1 is the husband and accused
No.3 is the mother-in-law of P.W.1. It is also not in dispute that
incident has taken place on 20.09.2013 almost after 11 years
of marriage. It is also the case of the prosecution that on the
previous date of incident i.e., on 19.09.2013, there was quarrel
between husband and wife. It is also the case of the
prosecution that accused himself forcefully administered
Goodknight and Mortein holding her mouth/nostril and made
her to consume the same and if it is a forceful act, there would
have been injuries on P.W.1, even there is no scratch mark.
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But, no explanation on the part of the prosecution with regard
to the same. The wound certificate issued by the Doctor, who
treated the injured, except mentioning the identification marks
not stated anything about the injuries caused to her.
11. It is also important to note that the evidence of
P.W.8-Doctor is very clear that not found any substance of both
Goodknight and Mortein. However, learned counsel for the
complainant brought to notice of this Court that P.W.1
categorically deposed that she was made to consume
Goodknight, but not Mortein. No doubt, such answer is found in
the evidence of P.W.1, the Court has to take note of not only
the chief evidence, but also the cross- examination. In the
cross-examination of P.W.1, there is an admission on her part
that when the accused sprayed Mortein spray, she made an
attempt to escape from the clutches of the accused. At that
time, cap of the spray had fallen down and M.O.1 was there in
the showcase on the previous day and also M.O.2. But, claims
that accused No.1 administered the same in the hall and Doctor
also enquired what had happened. She also claims in the cross-
examination that accused insisted not to disclose anything with
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the Doctor and caused threat and she was conscious, but was
tired. But, Doctor when P.W.1 vomited, the said substance was
not collected to send it to FSL to get the report whether she
was forcefully administered Goodknight and Mortein.
12. The P.W.1 also admits that accused himself shifted
her to hospital and police recorded her statement at 07.00 p.m.
and taken signature on Ex.P1. But, while giving statement, she
gave the statement that accused himself administered
Goodknight and Mortein. However, in the cross-examination,
she says that when panchayath was held, on her behalf, only
her parents had attended and claims that she was locked in the
house. But, categorically admits that when the dispute had
started after 3 years, herself and her husband started living
separately and this galata was not known to anyone, except
her parents. It is also elicited that prior to lodging of the
complaint, she says that panchayath was held in Kollegala
Town Police Station, but she is not having any document to
that effect. It is also her evidence that when she was staying
along with her children at Nanjangud in her parents' house,
accused used to come and go and also admission was given
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that thereafter her children were admitted to Nanjangud School
and accused himself got held panchayath, however she was
having life threat. It is her evidence that on the previous date,
she was questioned why she is standing in a particular place
and enticing anybody and on that date, she slept separately
and husband slept along with the children. She also claims that,
at that time accused Nos.2 and 3 were there in the very same
house and categorically given the admission that accused No.1
not administered Mortein, but only administered Goodknight.
13. Having taken note of these admissions on the part
of P.W.1 and when the evidence of P.W.8 is also read
conjointly, P.W.8-Doctor in his chief evidence says that on
enquiry, she revealed that husband himself forcibly
administered both Mortein and Goodknight. It is also very clear
in paragraph No.1 of the evidence of P.W.8 that victim came to
hospital with the history that she has consumed Mortein and
Goodknight and there are two versions in her statement. One
version is that victim herself consumed Goodknight and Mortein
and another version is that she had informed the Doctor that
accused himself forcibly administered the same. But, P.W.8
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also says that on enquiry, P.W.1 said that her husband-Abdul
Bashid and also in-law forcibly administered the same and the
same is mentioned in Ex.P5. Having considered this evidence, it
is an improvement against all the accused. Having considered
the different versions given by P.W.1 before the Doctor, at one
breath, she says that it was consumed by herself, at another
breath she says that it was administered by her husband and
once again, she says that accused Nos.1 to 3 administered the
same. When such inconsistent evidence is available before the
Court and the same also not corroborates with the evidence of
P.W.8 as well as the evidence of P.W.4, P.W.5 and P.W.6, who
are the relative witnesses, the evidence of P.W.1 cannot be
relied upon with regard to forcibly administering Goodknight
and Mortein and the evidence of the Doctor is very clear that
the said substance was not found and the FSL report also goes
against the State. Hence, the learned Additional Special Public
Prosecutor for the State cannot contend that Trial Court
committed an error in acquitting accused Nos.1 to 3 for the
offence punishable under Section 307 of IPC.
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14. Now this Court has to consider with regard to
invoking Section 498(A) of IPC and in respect of the allegation
against accused Nos.1 to 3 for the offence punishable under
Section 498(A) of IPC and considering the complaint at Ex.P1,
allegation is made against all the accused Nos.1 to 3. But, no
material is found against accused Nos.2 and 3. The Trial Court
while considering the material on record, particularly in respect
of accused Nos.2 and 3 in paragraph No.27, taken note of
evidence of P.W.1, who in her cross-examination stated that
accused Nos.2 and 3 were never there in the house when the
incident took place and also with regard to the allegations of
harassment under Section 498(A) and so also taken note that
complaint was lodged as per Ex.P1, that too in the evening not
immediately after the incident and a statement was made
before the police that accused Nos.2 and 3 were forcing her to
get the gold ornaments from the parent's house, in order to
expand the business. But, in order to substantiate the same,
except the oral evidence of P.W.1, nothing is stated and the
same is taken note of by the Trial Court, particularly in
paragraph No.30 of the judgment that charge/allegation leveled
against accused Nos.2 and 3 is not established by the
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prosecution and P.W.1 herself admitted in her deposition that
accused Nos.2 and 3 were not present in the house when the
incident took place i.e., on 20.09.2013 and only allegation is
that they were witnessing the cruelty as mute spectators. But,
no such specific instance is stated when they were sitting idle
when the cruelty was meted to P.W.1 by her husband and only
an omnibus allegation is made against accused Nos.2 and 3
and the same is also taken note of in paragraph No.31 of the
judgment of the Trial Court. Hence, we do not find any ground
to reverse the order of acquittal passed against accused Nos.2
and 3.
15. Now coming to the aspect of convicting accused
No.1 for the offence punishable under Section 498(A) of IPC is
concerned, it is the specific case of P.W.1 that there was
quarrel on the previous day on 19.09.2013 and the incident has
taken place on 20.09.2013. We have already taken note of the
immediate statement given by the victim and particularly, the
document of wound certificate which is marked as Ex.P5,
wherein the Doctor has said that it is said to have been caused
on and due to having consumed one bottle of liquid Maretin and
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liquid Goodknight at 09.30 a.m. on 20.09.2013 at her residence
which was forcefully fed to her by her husband and in-laws and
the examination commenced at 10.15 a.m. on 20.09.2013. This
Court has already comes to the conclusion that no
corroborative piece of evidence with regard to accused No.1
himself administered Goodknight and Mortein to P.W.1. But
there is no dispute with regard to strained relationship between
the parties is concerned. During the course of cross-
examination of P.W.1 itself, it is suggested to P.W.1 that
relationship was strained.
16. Learned counsel for the appellant/accused also in
his argument would contend that merely because the
relationship is strained, it does not amount to cruelty to invoke
the offence under Section 498(A) of IPC and there is no
material before the Court that she was treated cruelly. But, in
the complaint at Ex.P1 itself she has stated that on the
previous date on 19.09.2013 after providing food to in-laws
when she was cleaning near the dining hall, accused came and
questioned why she is standing there and also quarreled to
whom she is enticing. As a result, she was humiliated in view of
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the act of the accused and to teach a lesson to him and her in-
laws, she left the house along with her children. But, it is the
specific case of the victim that she was staying alone and he
took the children and slept separately. Hence, it is very clear
that there was an incident on the previous day and though
suggestion was made to the witness P.W.1 that no such
incident has taken place and also even doubting the fidelity of
the wife amounts to cruelty.
17. It is also important to note that it is an admitted
fact that due to the differences between them earlier
harassment was made to P.W.1 and though no document is
produced before the Court, but it is clear that matter had even
gone to Kollegala Town Police Station and thereafter, she went
and stayed in her parent's house. It has also emerged during
the course of cross-examination, subsequently, the accused
went and brought P.W.1 and got admitted the children to
Nanjangud School. These are the factors which clearly disclose
that they were not in cordial terms and also reason is assigned
by P.W.1 that accused No.1 was suspecting her fidelity and also
telling her to go and live with anybody else. When all these
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materials were taken note of and no doubt, the Trial Court
comes to the conclusion in paragraph No.34 while considering
the case of accused No.1 is concerned that accused No.1 got
intensified even after conciliation, brought her back and started
harassing her. Though, it is held in paragraph No.34 that
accused No.1 started harassing her more on the monetary
aspects, but it is for additional dowry. But the Trial Court also
taken note that accused No.1 was suspecting her fidelity and
apart from that considering the document of Ex.P1-complaint
which was given evening in the hospital, wherein also
categorically deposed that her husband and in-laws were
insisting her to get the gold ornaments from her parents, in
order to expand the business and nothing is elicited with regard
to contents of the document of Ex.P1 and also in the cross-
examination of P.W.1 with regard to demand and subjecting
her for cruelty. When such material is taken note of, though it
is mentioned it is for the monetary reason, but the allegation
that accused No.1 was insisting her to get the gold ornaments
subsequent to P.W.1 was brought to the house of accused No.1
is not specifically controverted. When such being the case and
material available before the Court, we do not find any grounds
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to interfere with the findings of the Trial Court in respect of the
offence punishable under Section 498(A) of IPC against accused
No.1.
18. The P.W.1 also in her evidence specifically deposed
before the Court that husband was suspecting her character
that she was having illicit relationship with her husband's father
and he used to lock her in the room putting latches and also
used to abuse her in filthy language and the said act continued
and the intention of the accused was P.W.1 should not come
out from the room and if any person comes to the house also,
accused No.1 was making an allegation that she is having an
affair with him and used to quarrel with her taking the same. It
is also narrated in page No.4 of the evidence of P.W.1 that
harassment means abusing and making an allegation that she
is having an affair and so also, particularly in respect of the
incident happened on 19.09.2013 questioning that when she
was cleaning the dining table after dinner, the accused No.1
picked up a quarrel with her stating that she was trying to
entice someone else. This evidence clearly disclose that the
allegation is made against the accused in her chief evidence
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and the same has not been specifically controverted in the
cross-examination of P.W.1 and though the order of the Trial
Court is cryptic with regard to invoking Section 498(A) of IPC,
but with regard to the harassment is concerned, the same is
not controverted in the cross-examination of P.W.1 in respect
of the references which have been made in the chief evidence.
When such being the material available on record, though the
order of the Trial Court is cryptic in invoking the offence under
Section 498(A) of IPC, the contention of learned counsel for the
appellant/accused cannot be accepted that the same will not
amount to cruelty and it amounts to only a difference between
the accused and P.W.1, since there was strained relationship
between both the P.W.1 and accused No.1 and the said
contention cannot be accepted when specific evidence is
deposed by P.W.1 with regard to meted out cruelty. When such
being the material on record, we answer point Nos.(i) and (ii)
accordingly that the State as well as appellant-complainant
have not made out any ground to convict the accused No.1 for
the offence punishable under Section 307 of IPC and reverse
the judgment of the Trial Court in respect of accused No.3 is
concerned, since appeal against accused No.2 is already abated
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and the Trial Court has not committed any error in convicting
accused No.1 for the offence punishable under Section 498(A)
of IPC.
19. After having dictated the judgment, at this
juncture, learned counsel for appellant-accused brought to
notice of this Court judgment of the Apex Court in
CHELLAMMAL AND ANOTHER vs. STATE REPRESENTED BY
THE INSPECTOR OF POLICE reported in 2025 SUPREME
(SC) 685 regarding invoking Section 360 of Cr.P.C and Section
4 of Probation of Offenders Act and brought to notice of this
Court paragraph No.28, wherein the Apex Court has discussed
with regard to invoking Section 4 of the Probation of Offenders
Act and also legislative wisdom to consider the same. In this
judgment also, it is made clear that the question of grant of
probation could be decided either way. In the event, the court
in its discretion decides to extend the benefit of probation, it
may upon considering the report of the probation officer impose
such conditions as deemed just and proper, it means the
question of grant of probation could be decided either way.
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20. The counsel also relied upon the judgment of the
Apex Court in MOHD. HASHIM vs. STATE OF UP & ORS.
reported in 2016 SUPREME (SC) 989, wherein also scope of
Section 4 of Probation Act is discussed and learned counsel
brought to notice of this Court paragraph No.23, wherein also
the Apex Court taken note of earlier judgment in DALBIR
SINGH vs. STATE OF HARYANA AND OTHERS reported in
AIR 2000 SC 1677 and it has been held that Parliament has
made it clear that only if the Court forms the opinion that it is
expedient to release the convict on probation for the good
conduct regard being had to the circumstances of the case and
one of the circumstances which cannot be sidelined in forming
the said opinion is the "nature of the offence".
21. Learned counsel for the complainant-appellant
would submit that the harassment is continuous in nature and
the records also clearly reveal that the incident has not taken
place only the particular date and even on the earlier date also,
the harassment was made. Thereafter, the victim and the
children left and settled in the parental house. But, accused
himself inspite of having made panchayath, brought them back
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to the matrimonial home and again continued the harrassment.
Hence, this Court has to take note of the same.
22. Having heard learned counsel for the appellants as
well as learned Additional Special Public Prosecutor for the
State, no doubt having considered the penal provisions of
Section 498(A) of IPC, the same is extendable for a period of
three years and maximum punishment is given and shall also
be liable to pay fine. In the case on hand, this Court has to take
note of the fact that only this particular incident has taken
place in between P.W.1 and the accused No1. The material
before the Court is that earlier also the wife had left the
company of the accused along with children and stayed along
with her parents and subsequently, after lapse of some years,
brought her back and continued the harassment. Hence, the
principles laid down in the judgments referred (supra) by the
learned counsel for the appellant will not come to the aid of the
appellant and if it was the only incident, there would have been
force in the submission of learned counsel for the appellant. No
doubt, the incident has taken place in the year 2013, but the
fact is that since for almost 13 years the children and the wife
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are living separately and not living along with the accused,
even after the expiry of 13 years of the particular incident.
When such being the case, it is not a case for invoking either
Section 360 or Section 4 of Probation of Offenders Act.
However, taking note of maximum punishment awarded by the
Trial Court, ought to have considered the same in a lenient
approach, since both of them lived together after the marriage
in the year 2002 and thereafter, differences arose between
them and relationship was strained. Hence, it is appropriate to
reduce the sentence of 3 years to 1 year with a fine of
Rs.30,000/-
Point No.(iii):
23. In view of the discussion made above, we pass the
following:
ORDER
(i) The appeals filed by the State and
complainant-victim in Crl.A.No.936/2018 and
Crl.A.No.736/2018 respectively are
dismissed.
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(ii) The appeal filed by the appellant/accused is
allowed in part reducing the sentence of three
years to one year and enhancing the fine
amount from Rs.10,000/- to Rs.30,000/- and
the entire amount is ordered to be paid in
favour of P.W.1 on proper identification after
the deposit.
(iii) The appellant/accused is entitled for set off
under Section 428 of Cr.P.C.
(iv) The Registry is directed to pay the fee of
Rs.10,000/- to learned Amicus Curiae, who
appeared on behalf of the appellant in
Crl.A.No.736/2018 for giving able assistance
in disposal of the case.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
MD,ST
List No.: 1 Sl No.: 18
