Allowed

Manjunath S/O Sadashiv Badiger, v. the State of Karnataka

Karnataka HC30 Oct 2023CRL.RP/100015/2017

Case brief

AI extract

What is this about?

High Court set aside convictions and acquitted petitioners accused of offences under Sections 504, 506, and 323 IPC where the judgment found material contradictions and discrepancies in prosecution witness testimonies, leading to a failure to prove guilt beyond reasonable doubt. Must vary original orders.

What did the court decide?

Petitioners acquitted of offences under Sections 323, 504, 506, and 34 of IPC; impugned judgments set aside; bail bonds cancelled; accused set at liberty; fine refunded.

Manjunath S/O Sadashiv Badiger, Vs the State of… — Criminal Trial and Appeal | Karnataka HC (2023)

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NC: 2023:KHC-D:12669 CRL.RP No. 100015 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 30^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO. 100015 OF 2017 (397)

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BETWEEN:

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MANJUNATH S/O. SADASHIV BADIGER, AGE: 28 YEARS, OCC: CARPENTER, R/O: BANAHATTI, JAMKHANDI, DIST: BAGALKOT.

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SADASHIV S/O. SIDRAMAPPA BADIGER, AGE: 58 YEARS, OCC: CARPENTER, R/O: BANAHATTI, JAMKHANDI, DIST: BAGALKOT.

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…PETITIONERS

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(BY SRI. SHRIHARSH A. NEELOPANT AND SRI. AVINASH MALIPATIL, ADVOCATES)

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AND:

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YASHAVANT NARAYANKAR

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THE STATE OF KARNATAKA, REPRESENTED BY PSI MUDHOL POLICE STATION, THROUGH SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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…RESPONDENT

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(BY SRI. M.B. GUNDAWADE, ADDL. SPP)

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Digitally signed by YASHAVANT NARAYANKAR Date: 2023.11.15 10:37:27 +0530

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 30.06.2016 PASSED IN CRIMINAL APPEAL NO. 111 OF 2013 PASSED BY THE COURT OF THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE BAGALKOT SITTING AT JAMKHANDI AND IMPUGNED JUDGMENT AND ORDER OF CONVICTION DATED 27.09.2013 IN CRIMINAL CASE NO. 587 OF 2010 PASSED BY THE PRINCIPAL JUDICIAL MAGISTRATE FIRST CLASS COURT MUDHOL FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 504 AND 506 OF IPC AND ACQUIT THE PETITIONERS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 504 AND 506 OF IPC IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS CRIMINAL REVISION PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The revision petitioners 1 and 2 have preferred this revision petition challenging the judgment of their conviction and order of sentence passed by the Principal JMFC, Mudhol (hereinafter referred to as ‘the trial Court’) in C.C.No.587/2010 and confirmed by the I-Additional District and Sessions Judge, Bagalkot sitting at Jamkhandi (hereinafter referred to as ‘the First Appellate Court’) in Criminal Appeal No.111/2013 dated 30.06.2016.

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The revision petitioners were accused before the trial Court in C.C.No.587/2010. For the sake of convenience, the parties to this revision petition are referred to as per their rank before the trial Court.

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The facts in brief leading to file this revision petition are as under:

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3.1 That these revision petitioners-accused faced trial before the trial Court for the offence punishable under

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Sections 323, 504, 506 read with 34 of Indian Penal Code (hereinafter referred to as ‘IPC’) based upon the complaint filed by the complainant dated 17.05.2010 submitted before the PSI, Mudhol Police Station.

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3.2 It was alleged in the complaint that, the complainant was residing at Janata Plot, Mudhol. She was married to accused No.1. Accused No.2 is her father-inlaw. It is alleged in the complaint that on 17.05.2010 at about 6.00 p.m. both accused No.1 and 2 came to the house of the complainant as she was residing in her parental house and tried to take away the child along with her. She came to her parental house for the purpose of delivery. When accused No.1 asked the complainant to accompany him, the complainant asked him to speak about the same to her parents. When it was requested to the parents of the complainant, they informed accused No.1 that as per the customs she has to be taken to her matrimonial home along with the child. At that time, it is alleged that accused No.1 started quarrelling with the

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complainant and her parents. He pushed the complainant by his hands and abused her in filthy language. He has also insulted her and also gave life threat stating that he is going to finish her up.

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3.3 With these allegations, a complaint came to be

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lodged which was registered by the police for the aforesaid

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offences.

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3.4 Police after investigation, filed charge sheet

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against the accused persons. During the crime stage itself, accused were arrested and they were enlarged on bail.

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3.5 To substantiate the case against the accused

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persons, prosecution in all examined nine witnesses from PW.1 to PW.9 and got marked Ex.P.1 to Ex.P.4 with respective signatures thereon and closed the prosecution evidence. The learned trial Magistrate on closure of evidence of both sides, by following all the formalities and having heard the arguments and on perusal of the records, acquitted accused No.1 and 2 for the offence punishable

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under Section 323 of IPC finding them not guilty. The trial Magistrate found the accused guilty of committing the offence under Sections 504 and 506 of IPC and sentenced them to undergo simple imprisonment for a period of two years and directed to pay fine of Rs.5,000/- and in default of payment of fine, they were further directed to undergo

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simple imprisonment for a period of three months for the offence punishable under Section 504 read with 34 of IPC; and for the offence punishable under Section 506, both the accused were sentenced to undergo simple imprisonment for two years and to pay fine of Rs.5,000/- with default sentence; out of the fine amount, it was ordered to pay compensation of Rs.10,000/- to the victim. Set off was also given under Section 428 of Cr.P.C. with a direction to run the sentences concurrently.

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3.6 This judgment of conviction and sentence was

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challenged by both the accused before the I Additional District and Sessions Judge, Bagalkot sitting at Jamkhandi in Criminal Appeal No.111/2013. The First Appellate Court

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vide judgment dated 30.06.2016 confirmed the judgment of conviction and order of sentence passed by the trial Court. This is how both the accused are before this Court in this revision petition.

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Heard the arguments of learned counsel for the

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petitioners-accused and learned Additional SPP for the respondent-State and perused the records.

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The following points would arise for my

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consideration:

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i. Whether the trial Court and the First Appellate Court have committed any illegal or factual error in finding the accused guilty for the offence punishable under Sections 504 and 506 read with 34 of IPC?

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ii. Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the First Appellate Court require interference by this Court?

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Since these two points require common

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discussion, I would like to discuss both the points together so as to avoid repetition.

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It is the allegation made by the prosecution that on 17.05.2010 at 6.00 p.m. accused No.1 and 2 went to the parental house of the complainant. Accused No.1 quarreled with the complainant, so also with the father of the complainant. It was told by the accused that since from eight months the complainant is residing in her parental house for the purpose of delivery of a child. He demanded the complainant to accompany him to his parental house. At that time, the complainant told that to that effect he has to ask her parents. When he enquired with her parents, they informed that as per the customs prevailing in the community, the complainant has to be taken to her matrimonial home. At that time accused No.1 and 2 enraged themselves and abused the complainant in filthy language so also her parents and pushed the

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complainant and caused simple injuries as well as abused the complainant’s family members.

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As stated supra, Ex.P.1 is the complaint submitted by the complainant Smt.Shashikala Badiger. The relationship between the complainant and accused No.1 is not in dispute. So also, it is not in dispute that accused No.2 is the father of accused No.1 and father-inlaw of the complainant.

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It is the case of the prosecution that the marriage between the complainant and accused No.1 has taken place about 2 years prior to filing of the complaint. It is stated in the complaint that after the marriage, complainant went to the matrimonial home to lead happy married life. She was looked after well in her matrimonial home. She was in her matrimonial home for one year. About eight months prior to filing of complaint, it is stated that she came to her parental house at Mudhol for the purpose of delivering a child. Accordingly, she delivered a

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male child by name Narayana who was seven months old when the complaint was lodged.

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It is stated in the complaint that about two months prior to filing of the complaint, accused No.1 her husband came to Mudhol to take the complainant to his house. When he asked the father of the complainant about the same, there was some quarrel between the complainant’s father and accused No.1. Therefore, without taking the complainant with him, he went away to Banahatti, his native place. It is stated by the complainant that at 6.00 p.m. on 17.05.2010, when complainant was in her house along with her parents and her sister Anusha, at that time, both accused No.1 and 2 came to the house of the complainant and accused No.1 lifted her son Narayana who was sleeping and started moving out. He came out of the house and the complainant followed him. When the complainant requested accused No.1 to give back her child, accused No.1 forced her to accompany him. At that time complainant requested her husband to enquire with

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her parents. But there was quarrel between accused No.1 and 2 and her parents. Accused No.1 and 2 started shouting at the parents of the complainant and on her also. When complainant asked her husband that why he is doing so, at that time, he pushed her and abused her in filthy language. They also quarreled with her. Even they gave life threat to her. With these allegations, a complaint came to be filed.

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Ex.P.2 is the scene of occurrence panchanama

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prepared by the police during the course of investigation. Ex.P.3 is the FIR, Ex.P.4 is the scene of offence sketch. Scene of offence sketch shoes that in a public place on the road, the sad alleged incident has taken place.

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PW.1 being the complainant has stated in line

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with the contents of the complaint. On reading of her evidence and also on comparing the complaint allegations, it is noticed that there are so many improvements in her evidence on oath. It is stated by her that, her marriage with accused No.1 took place on 28.04.2008 at Banahatti,

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Laxmigudda and out of the wedlock a male child is born. According to her on 15.11.2009 at 6.00 p.m. accused No.1 and 2 came to her parental house in a TATA Ace vehicle. She deposed that, both accused No1 and 2 came to Janata Plot where the house of the complainant’s parents is situated for the purpose of kidnapping. It is further stated that at that time her parents, herself and her sister were there in the house. It is alleged that, both accused by taking her child threw away the child from the window. The said child was put in a vehicle. At that time complainant wanted to take back her child. By that time accused No.1 pushed her and closed the door of the vehicle. The driver started the vehicle. By that time, the people gathered there and accused No.2 brought her child out of the said vehicle. Accused No.1 tried to take away her son along with him. But the people gathered there resolved the dispute.

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On reading the evidence spoken by PW.1 and on comparing the contents of the complaint, there is quite

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inconsistent evidence with that of the contents of the complaint lodged by PW.1. In her evidence on oath even she states that accused No.2 abused her in filthy language

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as “¨ÉÆÃ¸Àr”. Further in page No.2 of her examination-inchief, she has stated that the said incident has taken place as there was a demand to give dowry to accused No.1. Therefore, as there was no payment of the dowry as demanded by the accused, the said incident has taken place. Thereafter, after three days of the incident she went to the police station at 5.30 p.m. and lodged a complaint. As per the complaint allegations, the said incident has taken place on 17.05.2010. The complaint was lodged on 18.05.2010. But her evidence is to the effect that the said incident has taken place about three days prior to filing of the complaint. According to her, on the following day, in the afternoon police came and conducted panchanama.

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She has been thoroughly cross-examined by the defence. It is elicited from the mouth of PW.1 that when she was residing in her matrimonial home with

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accused No.1 and 2 and accused No.1 and 2 have not looked after her well. This fact is not recited in the complaint. According to her, she has stated in her complaint that her son was asked by the accused persons. PW.2 and PW.3 were present when the incident took place.

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On reading of cross-examination so directed, the very happening of the incident as alleged by the complainant is suspicious in this case. She has made so many improvements in the examination-in-chief with that of the contents of the complaint. For the first time, she has stated that, as no dowry was paid to accused No.1 and 2, the said incident has taken place. This is altogether different evidence spoken to by PW.1 with regard to the cause of the incident.

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PW.2-Raju is the scene of offence panch. But according to his evidence, he is not having any knowledge about the contents of Ex.P.2. So also, PW.3-Vishal also speaks in material particulars with that of the evidence of PW.2. According to him on the instructions of police, he

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has put his signature to Ex.P.2. In criminal cases, panchas are the authors of the panchanama. In the absence of proof of panchanama, it can never be said that the panchanama is duly proved in accordance with law. These PW.2 and PW.3 though state about their presence, but they do not know the contents of the panchanama. Therefore, their evidence would help the case of the prosecution with regard to preparation of the panchanama in the manner stated by the witnesses.

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PW.4-Sadashiv is none else than the father of the complainant. Though he the corroborates evidence of PW.1 in material particulars, he states that about three years back his daughter-the complainant came to his house for the purpose of delivery. After 10-12 days of her coming to his house, she delivered a male child. At that time, none of the accused came to see the child and the complainant-PW.1. Even they have not attended the naming ceremony to the said child. After three months of delivery, they came to the house and wanted to take back

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her. Accused No.1 his son-in-law came at that time and he requested his son-in-law to bring his parents and as per the customs prevailing in the community, the complainant has to be taken to her matrimonial home. At that time accused No.1 told that, let the complainant be sent with him otherwise he asked to keep his daughter in his house itself. Thereafter, after seven months accused No.1 and 2 came to the house and accused No.1 tried to take away his child. When resisted, the complainant was abused in filthy language stating that since for more than seven months she is residing in parental house. PW.4 was in the house after discharge from the hospital and was not keeping well at that time. It is further stated by PW.4 that when the quarrel took place and there were exchange of abuse, the people gathered there had resolved the dispute. It is alleged that accused No.1 assaulted his wife and daughter.

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On comparing the evidence of this PW.4 with that of the evidence of PW.1, we find so many

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improvements in the examination-in-chief of PW.4. PW.1 being the wife of accused No.1 never says that her husband has assaulted her but PW.4 says that accused No.1 assaulted PW.1. Likewise, we find so much of improvements with regard to advising the accused by the people gathered there which do not find place in the allegations made in the complaint so also in the evidence of PW.1.

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PW.4 has been thoroughly cross-examined before the trial Court. PW.4 has not stated that on behalf of his grandson a civil litigation is filed against the accused persons before Bijapur Court in the month of February 2010. He further states that, because of the said litigation, there is ill-will between himself and accused persons. PW.1 never says about the said litigation being filed by her on behalf of her son. It is stated that accused have not at all attended the naming ceremony of her son, therefore, he has filed this civil litigation against the accused. He admits that when the said incident took place, he was unable to

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walk and he used to walk with the help of others. Therefore, he did not come out when the incident took place. He does not know that how many people gathered there when the said incident took place. So the evidence of PW.4 clearly shows that the said incident has taken place on the road, he was inside and he was not an eyewitness to the incident as per his own evidence.

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On perusal of evidence of PW.1 and PW.4, there are so many contradictions and omissions in their evidence. If such evidence is placed on record, it really requires corroboration.

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PW.5 is none else than the wife of PW.4 and mother of complainant-PW.1. Though she states with regard to her presence when the said incident took place, she says that there was a dispute between the complainant’s family and accused persons with regard to sending of her daughter to her matrimonial home. Because of the said ill-will the said incident has taken place. Further, for the first time, she states that after six months

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of delivery of child, accused No.1 came to take his wife. She further states that accused No.1 was requested to take his child by following an formalities/customs, at that time the quarrel started in between them. Both the accused abused her in filthy language. They tried to assault her. The people gathered there rescued and resolved the dispute. According to her, accused No.2 assaulted her. They also gave life threat. One Raju resolved the dispute.

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On perusal of the evidence of PW.5, it shows that for the first time this PW.5 speaks of all these factual evidence which is quite contrary to the evidence of PW.1 and PW.4. PW.1 and PW.4 never say that the said Raju resolved the dispute.

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PW.5 was also cross-examined by the defence. There is much improvement in the cross-examination. In the examination-in-chief she states that accused No.1 came and wanted to take his child. She asked to him sit and take water. In the cross-examination she states that

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there was no conversation between herself and accused No.1. When the incident took place, people of the said locality gathered there. She cannot say number of people gathered at that time. Accused assaulted her daughter according to her evidence. PW.1 never said about any such assault. Hence, the evidence of PW.5 is full of contradictions and omissions.

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PW.6 is one else than the sister of the complainant. According to her evidence, she has also quarreled with her husband and came to her parental house. She was present when the incident took place. It is her evidence that, when the incident took place, her father was on the bed. She also corroborates about the said incident but according to her accused No.1 abused his sister-PW.1 in filthy language. She further deposes that, after 3-4 months of visiting accused No.1 to the house of her parents, both accused No.1 and 2 came to the house of her parents and this evidence is an improvement spoken in the cross-examination.

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PW.7 and PW.8 are the independent witnesses

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to the said incident. It has come in the evidence of these two witnesses that both the accused on the date of incident came to the house of PW.4 and accused No.2 father-in-law of the complainant started running away with the child. At that time complainant’s father was not keeping well. Thereafter, all went and resolved the dispute. Thus, the evidence of PW.7 is quite contrary to the evidence of PW.1, 4 to 6. According to her evidence, she has not given any statement before the police. So also, PW.8 states that accused No.2 started moving with the child. At that time PW.8 took the child from his hands. Either PW.1 to PW.4 to PW.6 or PW.7 have stated so in their evidence.

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PW.9 is the Investigation Officer and he has spoken about the investigation did by him.

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On perusal of the entire evidence placed on record by the prosecution through PW.1, PW.4 to PW.8, I find material contradictions, omissions and discrepancies

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in the evidence of the prosecution witnesses. The evidence is full of embellishments. In a criminal case, it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Even on perusal of the statements being recorded by the police under Section 161 of Cr.P.C. of all these witnesses, there is no recital of such a statement as spoken to by them in their evidence on oath.

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I find so many improvements in the evidence so as to implicate the accused. This possibility cannot be ruled out. Merely because the witnesses have stated so many factual aspects with regard to the incident in their examination-in-chief for the first time, it cannot be said that the version of such witnesses has to be accepted. There must be corroboration in the evidence with that of the complaint as well as statements so recorded by the police during the course of investigation. In this case, there is lot of improvements in the evidence. If one witness is believed, the other witnesses cannot be believed. Therefore, the evidence so spoken to by the

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witnesses do not help the case of the prosecution in proving the guilt of the accused.

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The Trial Court has acquitted the accused for

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the offence under Section 323 of IPC, though the said offence is the main offence. When the accused is acquitted by extending the benefit of doubt for the main offence what would be the reason for accepting the evidence of the prosecution witnesses for other offences is not properly stated. The Trial Court has not considered all these aspects and simply came to the conclusion that the accused have committed offence punishable under sections 504 and 506 of IPC. So far as Section 504 of IPC is concerned, it is the duty of the prosecution to prove the following ingredients:

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i) intentional insult;

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ii) the intention must be such as to give provocation to the person insulted; and

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iii) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence.

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In this case, the evidence placed on record by the prosecution do not attract these ingredients. It is also the duty of the prosecution that the intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break public peace or to commit any other offence, in such a situation the ingredients of Section 504 are satisfied.

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The essential elements to constitute such an offence in this case are missing. Further, there is simple assertion that there was a threat to the life of the complainant and his parents. But the ingredients of such an offence are also not proved by the prosecution. First of all, there must be mens rea is a necessary postulate for

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the offence under the provisions of 506 of IPC. There was a civil dispute between the complainant and the accused persons and accused No.1 wanted to take his wife after delivery of a child as there was request by the complainant to ask her parents. The complaint was filed after 3 days of the incident. Even the date of incident is also not properly deposed by the witnesses. Therefore, if all these factual features are taken into consideration, it can be stated that, the Trial Court as well as the First Appellate Court have not appreciated the evidence in proper perspective. The prosecution’s case suffers from material particulars and it is full of contradictions, omissions, improvements and embellishments. Therefore, a doubt arises in the case of the prosecution and that benefit of doubt has to be extended in favour of the accused persons.

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More so, it is submitted by the counsel Sri. Avinash Malipatil, for revision petitioners that, now accused No.1- husband of the complainant is residing with the complainant happily and they are leading happy

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marital life. Even accused No.2 is also in cordial terms with his daughter-in-law. If this is so, it is just and proper to extend the benefit of doubt to the accused persons. Hence, accused 1 and 2 are entitled for acquittal by giving benefit of doubt. Consequentially the judgments of the Trial Court as well as First Appellate Court require interference by this Court. Accordingly, the point raised by this Court is answered in favour of the revision petitionersaccused. Resultantly, I pass the following:

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ORDER

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i) The revision petition filed by the petitionersaccused No.1 and 2 is hereby allowed.

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ii) The impugned judgments of conviction and sentence passed by the JMFC Court, Mudhol dated 27.09.2013 in C.C.No.587/2010 and confirmed by the I-Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi vide judgment dated 30.06.2016 in Crl.A.No.111/2013 are hereby set aside. The petitioners-accused No.1 and 2 are

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acquitted of the charges leveled against them for the offence under Section 323, 504, 506 r/w section 34 of IPC.

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iii) The bail bonds of accused No.1 and 2 stand cancelled and they are set at liberty.

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iv) If any fine amount is deposited, the same shall be refunded digitally to the accused persons on proper identification and after due acknowledgment.

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v) Send back the Trial Court and Appellate Court records along with a copy of this order.

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Sd/JUDGE

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SH, YAN LIST NO.: 1 SL NO.: 10

Manjunath S/O Sadashiv Badiger, v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Manjunath S/O Sadashiv Badiger, v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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