Dismissed

Gangamma @ Lalith W/O Manjappa Ganiger v. State of Karnataka

Karnataka HC16 Nov 2018CRL.RP/100154/2017

Case brief

AI extract

What is this about?

In this criminal revision petition, the High Court of Karnataka examined an order by the Sessions Judge summoning petitioners under Section 319 of Cr.P.C. The petitioners challenged the legal sanction for summoning them based on hearsay evidence of witnesses who were not presented as prosecution witnesses at the time. The High Court observed that material in the FIR and inquest statements establis

What did the court decide?

Revision petition dismissed; application under Section 319 of Cr.P.C. allowing summons to petitioners stands affirmed.

Gangamma @ Lalith W/O Manjappa Ganiger Vs State of… — Cheating and Forgery | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF NOVEMBER 2018

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL. R. P. NO.100154 OF 2017

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BETWEEN:

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GANGAMMA @ LALITA W/O. MANJAPPA GANIGER AGE. 38 YEARS, OCC. HOUSEWIFE R/O. CHINNAMULAGUND, TQ. HIREKERUR, DIST. HAVERI.

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MANJAPPA S/O. CHANNABASAPPA GANIGER AGE. 45 YEARS, OCC. AGRICULTURE, R/O. CHINNAMULAGUND, TQ. HIREKERUR, DIST. HAVERI.

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… PETITIONERS

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(BY SRI M. B. GUNDAWADE, ADVOCATE)

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AND :

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STATE OF KARNATAKA BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH, AT DHARWAD, THROUGH CPI, HIREKERUR.

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… RESPONDENT (BY SRI V. M. BANAKAR, ADDITIONAL S.P.P.)

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THIS PETITION IS FILED U/S. 397 R/W. SECTION 401 OF CR.P.C. SEEKING TO CALL FOR RECORDS AND TO

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ALLOW THE REVISION PETITION AND THEREBY SET ASIDE THE ORDER DATED 12.04.2017 PASSED BY II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI (SITTING AT RANEBENNUR) IN CASE BEARING S.C. NO.71/2013.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners, who are the proposed accused Nos.4 and 5 have preferred this revision petition challenging the impugned order dated 12.04.2017 passed in S.C. No.71/2013 on the file of the II Additional District and Sessions Judge, Haveri sitting at Ranebennur, whereby the learned Judge allowed the application filed by the State under Section 319 of Cr.P.C. and directed to issue summons to the petitioners herein to appear before the Court and to face trial.

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The Haunsabhavi police filed chargesheet against accused No.1 to 3 under Sections 498A, 302 and 504 read with Section 34 of I.P.C. It is the case of the prosecution that the marriage of

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the deceased namely Manjula @ Suma was performed with accused No.1 about five years ago from the date of the incident. Deceased started living with her husband at Haunsabhavi village wherein all the accused persons were staying together. The deceased was being subjected to ill-treatment and harassment by the accused persons on the ground that she does not know to cook properly and further, stating that accused No.1 was not interested in marrying her etc. On 25.06.2013 when the deceased expressed her desire to go to her parental house, the accused persons prevented her and also abused her saying that if she goes to her parents house, she should not return back. It is the further case of the prosecution that on 26.06.2013 at about 5.10 a.m. accused No.1 with an intention to commit the murder of his wife, poured kerosene and set fire to her and later she was shifted to C.G. Hospital,

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Davangere wherein she succumbed to the injuries on 29.06.2013 at about 9.35 p.m.

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The chargesheet was filed under Section

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498A and 504 read with Section 34 of I.P.C. against accused Nos.1 to 3 and under Section 302 of I.P.C. against accused No.1. The charges were framed for the aforesaid offences against accused Nos.1 to 3.

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During the course of trial, the prosecution examined 9 witnesses. The prosecution filed an application under Section 319 of Cr.P.C. to issue summons to the petitioners herein contending that, P.W.4 and 7 have also deposed in their evidence against the petitioners herein who are the sister and brother-in-law of accused No.1. The learned Sessions Judge by an order dated 12.04.2017 allowed the said application and issued summons to the petitioners herein.

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I have heard the learned counsel

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appearing for the petitioners and the learned Additional State Public Prosecutor for the

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respondent – State.

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The learned counsel appearing for the petitioners vehemently contended that the allegations against the petitioners herein are that they were also ill-treating the deceased in connection with the demand of dowry and they were also instigating accused No.1 on account of which accused No.1 was giving physical and mental harassment to the deceased. He contended that the said allegations are hearsay and the same does not reflect in the dying declaration of the deceased, though in the said statement she has named accused Nos.1 to 3. The learned counsel further submitted that there is no specific overt act which is alleged by the said witnesses against the petitioners herein and in

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such a circumstance summoning the accused by allowing an application under Section 319 of Cr.P.C. is unjustifiable and not legally sustainable.

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In support of his contention, the learned counsel for the petitioners relied upon the decision of the Hon’ble Supreme Court in the case of Lal Suraj Alias Suraj Singh and Another v. State of Jharkhand reported in (2009)2 SCC 696 and Kailash v. State of Rajasthan reported in 2008(14) SCC 51.

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Per contra, the learned Additional State Public Prosecutor contended that, name of the first petitioner finds a place in the FIR itself. The names of the petitioners have been mentioned by the above witnesses during the inquest proceedings. It is further submitted that, P.W.4 in her evidence has also deposed that when the complainant enquired the victim in the hospital she stated that

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the accused persons as well as Gangamma set fire to her. He would further submit that considering the evidence of P.W.4 and P.W.7, the learned Sessions Judge has rightly allowed the application filed under Section 319 of Cr.P.C., and therefore, there is no illegality committed by the Sessions Judge and accordingly seeks to dismiss the revision petition.

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Perusal of the FIR lodged by the complainant, the father of the deceased, reveals that the complaint was lodged against four accused persons including the petitioner No.1 herein. It is also to be noted that during the course of inquest proceedings recorded by the Taluk Executive Magistrate the complainant i.e., father of the deceased as well as Neelavva, the mother of the deceased who are now examined as P.Ws.4 and 7 have stated regarding the role of the petitioners herein. In the evidence of P.W.4, he

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has deposed that all the accused including Gangamma i.e., petitioner No.1 were ill-treating the deceased in connection with dowry and they were abusing the deceased in this connection. P.W.7 has stated that initially all the accused including the petitioners herein were staying together and for about two years the accused looked after her daughter properly. In the year 2012 Gangamma i.e., sister-in-law of the deceased started staying in a separate house which was close to the house of the other accused. However, she was visiting the house of accused No.1 and instigating accused No.1 on account of which accused No.1 was ill-treating the deceased. On 24.06.2013, when Nagaraju, the son of P.W.7 visited the house of accused on hearing that the deceased was not keeping well, at that time, all the accused including the petitioners herein abused him saying that they will not send the deceased to her parents house and let her die,

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etc. The role of petitioners herein have been deposed by both P.Ws.4 and 7 in their evidence.

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It is nodoubt true that the statement of

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the deceased does not implicate the present petitioners. However, the said dying declaration relates to the cause of death of the victim, on the basis of which chargesheet was filed under Section 302 of I.P.C. against accused No.1. However, insofar as other offences, there are material against the petitioners at this stage.

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The learned counsel for the petitioners by relying on the judgment of the Hon’ble Supreme Court in the case of Lal Suraj Alias Suraj Singh and Another (supra) , contended that power under Section 319 of Cr.P.C. is required to be exercised very sparingly and before summoning such persons, trial Court must form an opinion on the basis of the evidence and in the

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present case there is no evidence worth the name was brought on record to arrive at a satisfaction that there was a reasonable prospect of conviction of the appellants. He further submitted that P.Ws.4 and 7 being hearsay witnesses, there is no possibility of recording judgment of conviction against the petitioners.

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By relying on the decision of the Hon’ble Supreme Court in the case of Kailash (supra) , the learned counsel submitted that the summoning of a witness can only be done when the Court is satisfied that there is a strong evidence and the power under Section 319 of Cr.P.C. has to be exercised very sparingly.

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In the present case, as noted above, the name of the first petitioner finds a place in the FIR itself. Further, during the course of inquest proceedings both the parents of the deceased have

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given their statement with regard to the role of both the petitioners. The evidence of P.Ws.4 and 7 also discloses the role of the petitioners herein. The trial Court on a careful perusal of the evidence of both P.Ws.4 and 7 and other material on record has come to the conclusion that there is sufficient material to proceed against them. The trial Court has formed an opinion on the basis of evidence brought before it and at this stage it cannot be said that on the basis of the aforementioned evidence there is no possibility of recording the judgment of conviction against the petitioners.

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It is nodoubt true that the power under

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Section 319 of Cr.P.C. has to be exercised very sparingly with caution and only when concerned Court is satisfied that some offence has been committed by the proposed accused and the evidence which the Court wants to rely should be much more than probability and the test that has

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to be applied is one which is more than prima facie case.

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In the present case, from the material on record, it appears that there is more than a prima facie case to summon the petitioners and to try them along with the other accused against whom the chargesheet was filed. There is no illegality in the order passed by the Court below. However, the prosecution shall have to establish its case in accordance with law and at the same time the petitioners will also have sufficient opportunity to put forth their defence and to prove their innocence. For the aforesaid reasons, I pass the following :

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ORDER

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Petition is dismissed.

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Sd/JUDGE

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hnm

Gangamma @ Lalith W/O Manjappa Ganiger v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Gangamma @ Lalith W/O Manjappa Ganiger v. State of Karnataka

Case brief

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