Allowed

Sri Rajesh K S v. State by Hennur Police Station,Bangalore

Karnataka HC28 Nov 2024CRL.A/1071/2012

Case brief

AI extract

What is this about?

This court allowed an appeal against conviction under Section 498A IPC, acquitting the appellant. It held that mere extramarital relationships, without evidence showing high degree of mental cruelty likely to drive a woman to suicide, do not constitute cruelty under the offence.

What did the court decide?

Appeal allowed; judgment of conviction and sentence set aside; appellant acquitted of offence punishable under Section 498A of IPC; fine refunded.

Sri Rajesh K S Vs State by Hennur Police… — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC:48749 CRL.A No. 1071 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 1071 OF 2012

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BETWEEN:

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SRI RAJESH K S AGED ABOUT 34 YEARS S/O SRINIVAS RAO R/O No.317, 1^ST FLOOR 6^TH ‘A’ MAIN, 3^RD BLOCK HBR LAYOUT, BANGALORE - 43

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…APPELLANT

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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(BY SRI A RAVISHANKAR, ADVOCATE) AND:

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STATE BY HENNUR POLICE STATION, BANGALORE.

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…RESPONDENT

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(BY SMT. K NAGESHWARAPPA, HCGP)

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THIS CRL.A IS FILED UNDER SECTION 374(2) OF Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED 29/8/2012 PASSED BY THE FAST TRACK (SESSIONS JUDGE, FTC-XI, BANGALORE IN S.C. No.866/2011 - CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A) OF IPC AND ETC.,

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THIS APPEAL COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2024:KHC:48749 CRL.A No. 1071 of 2012

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the sole accused praying to set aside the judgment of conviction and order on sentence dated 29.08.2012 passed in S.C.No.866/2011 by the Fast Track(Sessions) Judge, Bengaluru (FTC –IX), whereunder the appellant -accused has been convicted for the offence punishable under Section 498A of the Indian Penal Code (hereinafter referred to as “IPC” for brevity) and sentenced to undergo rigorous imprisonment for a period of 02 years and to pay fine of Rs.5,000/-.

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The factual matrix of the case are that the marriage of the deceased –Sudha was performed with the appellant –accused on 30.01.2000. After the marriage they were residing at House No.317, 1^st floor, 3^rd block, 6^th -A main, HBR layout. The appellant –accused was having illicit relationship with one Neetha Angel Mary and when this was questioned by deceased –Sudha, the appellant –accused abused her and harassed her mentally

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and physically. The appellant –accused was also abetting the deceased –Sudha to die so that he can live happily with the other lady. The deceased –Sudha being depressed in life committed suicide by hanging herself to a ceiling fan on 02.09.2010 in the said house. Charge sheet has been filed against the appellant –accused for offences punishable under Sections 306 and 498A of IPC.

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The case came to be committed to the Sessions

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Court. The Sessions Court has framed charges for offences punishable under Sections 306 and 498A of IPC. In order to prove charges, the prosecution has examined 11 witnesses as P.W.1 to 11, got marked documents as Ex.P1 to 21 and material objects as M.O.’s 1 to 4. The statement of the appellant -accused came to be recorded under Section 313 of Cr.P.C. 09 documents came to be marked on defence side as Ex.D1 to D9. Learned trial Judge after hearing arguments on both sides has formulated points for consideration and passed impugned judgment convicting the appellant –accused for the

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offence punishable under Section 498A of IPC and acquitted the appellant –accused for offence punishable under Section 306 of IPC. The said judgment of conviction and order on sentence has been challenged by the appellant –accused in this appeal.

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Heard learned counsel for appellant –accused

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and learned High Court Government Pleader for the respondent –State.

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Learned counsel for the appellant –accused would contend that the marriage of the appellant –accused with the deceased –Sudha has been performed on 30.01.2000 and they lead happy marital life and out of their marriage a son –Karthik (P.W.4) was born. The appellant –accused with his wife deceased –Sudha and his son –Karthik were happily residing in their house. The deceased making false allegation against the appellant – accused that he having illicit relationship with Neetha Angel Mary, filed matrimonial case seeking dissolution of marriage. Before issuance of notice, she withdraw the said matrimonial case. The evidence of P.W.4 –Karthik

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indicates that the appellant –accused, his wife –Sudha and their son –Karthik were leading happy life and used to go to cinema, picnic, tours and temples. The appellant – accused was residing with the deceased –Sudha and their son –Karthik in his house. Mere allegation of having extramarital affair does not amount to harassment and it will not attract offence punishable under Section 498A of IPC. Learned Sessions Judge considering the evidence on record has held that there is no demand of dowry by the appellant –accused. Learned Sessions Judge has also rightly acquitted the appellant –accused for offence punishable under Section 306 of IPC stating that the alleged illicit relationship and harassment will not amounts to abetment to commit suicide. He further contended that learned Sessions Judge has held that the illicit relationship does not amount to abetment to commit suicide, the offence punishable under Section 498A of IPC is also not attracted. The deceased –Sudha was taking treatment and Ex.D2 is the said treatment slip which indicates that the deceased -Sudha was taking treatment for her depression.

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The evidence of P.W.1 –father of the deceased

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consist of improvements, omissions and exaggeration and therefore, it is not trustworthy to place reliance for convicting of the appellant –accused. The Investigating Officer has not recorded the statement of Neetha Angel Mary or other office colleagues of the appellant –accused to ascertain that the alleged illicit relationship with the said Neetha Angel Mary. Learned Sessions Judge has not taken into consideration of the written statement filed by the appellant –accused under Section 313(5) of Cr.P.C filed at the time of recording his statement under Section 313 of Cr.P.C. The appellant –accused has denied allegation of having illicit relationship with the Neetha Angel Mary in his statement and the prosecution has not called for the appellant –accused for cross examination in that regard. The deceased was sensitive and there was dispute between husband and wife for performing house warming ceremony with regard to calling priest and fixing date of house warming ceremony on September 17 and 19 and the learned Sessions Judge held that it is minor dispute.

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The appellant –accused wanted to call priest of Bengaluru and in that regard deference arises between the appellant –accused and deceased-Sudha. The learned Sessions Judge has rightly held that photos –Ex.P6 to 10 are not true. The said photos have not been confronted by the Investigating Officer to the prosecution witnesses namely P.W.1 to 4 and 6 to ascertain whether the lady seen in the

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said photographs is Neetha Angel Mary. The alleged extramarital relationship was not of such extent so as to drive the wife to commit suicide as the appellant –accused was residing with his wife deceased –Sudha and his son – Karthik and performing his marital obligations and looking after his family. He placed reliance on the decisions of the Hon’ble Apex Court in the cases of Pinakin Mahipatray Rawal Vs State of Gujarat¹ and Ghusabhai Rais Angbhai Chorasiya and others Vs State of Gujarath² .

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He also placed reliance on the decision of this Court rendered in Crl.P.No.101826/2024 decided on

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1 Reported in (2013) 10 SCC 48

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2 Reported in (2015) 11 SCC 753

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10.09.2024. He submits that now the appellant –accused is taking care of his son –Karthik who is residing with his grand mother –P.W.2. The father of the appellant – accused has gifted property in the name of P.W.2 who is looking after the son of the appellant –accused. He submits that considering the entire evidence on record, the offence punishable under Section 498A of IPC is not made out. On these grounds, he prays to allow the appeal and acquit the appellant –accused for offence punishable under Section 498A IPC.

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Learned High Court Government Pleader for the respondent –State has supported the reasons assigned by the trial Court in convicting the appellant –accused for the offence punishable under Section 498A of IPC. He submits that evidence of P.W.1, 2, 4 and 6 establish that there is illicit relationship of the appellant –accused with one Neetha Angel Mary. The said illicit relationship amounts to cruelty and attracts the offence punishable under Section 498A of IPC. Considering the said aspect, learned Sessions Judge has rightly convicted the appellant –

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accused for the offence punishable under Section 498A of IPC. On these grounds, he prays for dismissal of the appeal.

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Having heard learned counsels, perusing the impugned judgment, trial Court records and considering the grounds urged, the following point arises for my consideration:

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Whether the Trial Court has erred in convicting the appellant –accused for the offence punishable under Section 498A of IPC?

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My answer to the above point is in Affirmative for

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the following reasons

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The marriage of the appellant –accused with deceased –Sudha has been solemnized on 30.01.2000. Out of their marriage P.W.4 –Karthik was born. The appellant –accused, deceased –Sudha and their son – Karthik were residing in a rented house of the ownership of P.W.7. The wife of the appellant –accused namely Sudha committed suicide by hanging to a ceiling fan with

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the help of cloth on 02.09.2010 in the house of the appellant –accused. At the time of suicide the appellant – accused was not in the house. Prior to the marriage this appellant –accused was relative to the deceased –Sudha. P.W.2 –mother of the deceased –Sudha was father’s sister of the appellant –accused.

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The accusation against this appellant –accused

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is that he was demanding dowry and harassing the deceased in that regard. Another allegation against this appellant –accused is that he had illicit relationship with Neetha Angel Mary and in that regard there were quarrels

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between the appellant –accused and deceased –Sudha. The learned Sessions Judge considering the evidence on record has held that the prosecution has not proved that the appellant –accused has demanded dowry and harassed the deceased –Sudha. The other allegation against this appellant –accused is that he is having illicit relationship with his colleague Neetha Angel Mary. Considering the said allegation, it requires examination that what type of relationship that the appellant –accused had with Neetha

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Angel Mary and whether the said extramarital relationship is of such degree amounted to cruelty falling within the explanation to section 498A of IPC. In a case of similar allegation and accusation, the Hon’ble Apex Court in the case of Pinaki Mahipatray Rawal (Supra) has observed as under:

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19. "Marital relationship" means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on. Extramarital relationship as such is not defined in the Penal Code. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the Explanation to Section 498-A and that A-1 had abetted the wife to commit suicide. We have to examine whether the relationship between A-1 and A-2 amounted to mental harassment and cruelty.

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20. We have to examine the correctness or otherwise of the findings recorded by the trial court,

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affirmed by the High Court, as to whether the alleged relationship between A-1 and A-2 has in any way constituted "cruelty" within the meaning of the Explanation to Section 498-A IPC. The facts in this case have clearly proved that A-1 has not ill-treated the deceased, either physically or mentally, demanding dowry and was living with A-1 in the matrimonial home till the date she committed suicide. Cruelty includes both physical and mental cruelty for the purpose of Section 498-A. Section 498-A IPC reads as under:

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" 498-A. Husband or relative of husband of a woman subjecting her to cruelty .- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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Explanation.- For the purposes of this section, 'cruelty' means-

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(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

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(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

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21. This Court in Girdhar Shankar Tawade v. State of Maharashtra, examined the scope of the Explanation and held as follows: (SCC p. 180, para 3)

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"3. The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which

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obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of Section 498-A."

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22. In Gananath Pattnaik v. State of Orissa, this Court held that the concept of cruelty under Section 498-A IPC and its effect under Section 306 IPC varies from individual to individual also depending upon the social and economic status to which such person belongs. This Court held that cruelty for the purpose of offence and the said section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty or harassment in a given case.

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23. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to "cruelty", but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC. Harassment, of course, need not be in the form of physical assault and even mental

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harassment also would come within the purview of Section 498-A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. We, on facts, found that the alleged extramarital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide.”

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The Hon’ble Apex Court in the case of Ghusubhai Raisangbhai(Supra) placing reliance on the decision of Pinaki (Supra) has held as under:

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“ 21. Coming to the facts of the present case, it is seen that the factum of divorce has not been believed by the learned trial Judge and the High Court. But the fact remains is that the husband and the wife had started living separately in the same house and the deceased had told her sister that there was severance of status and she would be going to her parental home after the "Holi" festival. True it is, there is some evidence about the illicit relationship and even if the same is proven, we are

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of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal. but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, t he Explanation to Section 498-A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted.

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22. Presently, adverting to the involvement of the other accused persons, a that is, Appellants 1, 3 and 4, we find that there is no allegation of any kind of physical torture. The evidence brought on record against them with regard to cruelty is absolutely sketchy and not convincing. It has been alleged that the mother-in-law used to rob her money which she earned as wages. The said fact has really not been established. As far as Appellant 4, Jesuben is

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concerned, there is only one singular allegation that at one public place i.e. in a "mela", she had threatened the deceased that she would be divorced by her husband. On the basis of the said evidence, it is difficult to sustain the conviction under Sections 306 and 498-A IPC. Once we are holding that the appellant-accused are not guilty of the offence under Sections 306 and 498-A IPC, the conviction under Section 201 IPC is also not sustainable.”

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Mere extramarital relationship, even if true would be illegal and immoral has been said in the Pinaki (Supra), but it would take a different character with the prosecution brings some evidence on record to show that the accused has conducted in such a manner to drive the wife to commit suicide. The evidence of P.W.4 –Karthik specifically in the cross examination indicates that the appellant –accused was residing with his wife deceased – Sudha and son –Karthik and he was taking care of his wife and son and he was taking them to movies, picnic and tours and temples. There is no accusation against this appellant –accused that he was not discharging his duties as husband and father. The appellant –accused was

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residing with his wife deceased –Sudha and son Karthik. What is brought on record is that there was some quarrels between the appellant –accused and deceased -Sudha with regard to his extramarital relationship with one Neetha Angel Mary. In view of the conduct of the appellant –accused as noted (supra) it cannot be said that the alleged illicit relationship could be of high degree of mental cruelty to attract the explanation to the Section 498A of IPC which includes cruelty to drive a women to commit suicide. Except the evidence of P.W.1, 2, 4 and 6 alleging illicit relationship of the appellant –accused with Neetha Angel Mary no other acceptable evidence was brought on record that can establish such high degree of mental cruelty to attract explanation of Section 498A of IPC which includes cruelty to drive a women mentally to commit suicide. Considering the evidence on record, the ingredients of offence punishable under Section 498A of IPC are not made out. Without considering these aspects, learned Sessions Judge has erred in convicting the appellant –accused for offence punishable under Section

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498A of IPC. The appellant –accused has made grounds for setting aside the impugned judgment and order on sentence.

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In the result, the following

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ORDER

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i) The appeal is allowed.

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ii) The judgment of conviction and order on sentence dated 29.08.2012 passed in S.C.No.866/2011 by the Fast Track(Sessions) Judge, Bengaluru (FTC –IX) is set aside.

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iii) The appellant –accused is acquitted for offence punishable under Section 498A of IPC.

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iv) The fine, if any paid by this appellant –accused is ordered to be refunded to him.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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DSP

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List No.: 1 Sl No.: 7

Sri Rajesh K S v. State by Hennur Police Station,Bangalore

Case brief

What is this about?

What did the court decide?

Sri Rajesh K S v. State by Hennur Police Station,Bangalore

Case brief

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What did the court decide?

What the court decided

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