Allowed

Nanjundeshwara v. State by Sorba Police

Karnataka HC7 Feb 2024CRL.A/1138/2012

Case brief

AI extract

What is this about?

In a criminal appeal under Section 306 IPC, the High Court of Karnataka allowed the appeal and acquitted the appellant. The court held that prosecution failed to prove the accused sent the threatening SMS and that the death note did not establish abetment of suicide.

What did the court decide?

The impugned judgment of conviction and sentence is set-aside. The appellant is acquitted of the offence under Section 306 of IPC.

Nanjundeshwara Vs State by Sorba Police — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:5205 CRL.A No. 1138 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL No. 1138 OF 2012

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BETWEEN:

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NANJUNDESHWARA S/O KOTRAPPA SANGAPPA BALEGANOOR AGED ABOUT 28 YEARS FINANCIER R/O KAGINELE VILLAGE BYADAGI TALUK HAVERI DISTRICT.

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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 SHVIARAM R BHAT, FOR SRI PRUTHVI WODEYAR, ADVOCATE)

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AND:

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STATE BY SORBA POLICE SORABA REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE.

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…RESPONDENT

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(BY SMT. N ANITHA GIRISH, HCGP)

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THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 27/9/2012 PASSED BY THE PRINCIPAL SESSIONS JUDGE, SHIMOGA IN S.C.No.147/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 306 OF IPC.

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THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the appellant – accused, praying to set-aside the judgment of conviction and order of sentence dated 27.09.2012 passed in S.C.No.147/2010

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by the Principal Sessions Judge, Shivamogga. The appellant – accused has been convicted for the offence under Section 306 of the Indian Penal Code, 1860 (for short hereinafter referred to as ‘IPC’) and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.10,000/- and in default, to undergo simple imprisonment for a period of two months. The Trial Court has acquitted the appellant - accused of the offences under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 (for short hereinafter referred to as ‘D.P.Act’) .

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The factual matrix of the prosecution case is as under;

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CW.1 – Sri.S.Basavarajappa, (now deceased) is the resident of Basavapura village in Sorab Taluk. He had two daughters by name Shruthi and Shwetha. The marriage of

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Shruthi was scheduled with the appellant / accused – Sri.Nanjundeshwara, son of Sri.Kotrappa Sangappa Balaganoor of Kaginele village, Byadagi Taluk. At the time of marriage negotiation, it was agreed to pay cash of Rs.1,50,000/- and 100 grams of gold by means of dowry. The marriage was scheduled on 14.11.2008 at Chowhan

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Green Garden Chowltry, Hubli. Fifteen days prior to 5.11.2008, CW1 – complainant had paid the entire dowry amount and had distributed the marriage invitation cards to the relatives. In the intervening period, the appellant – accused had gifted a mobile to Shruthi and both were talking with each other over the mobile. Prior to Deepavali festival, Shruthi informed the complainant that the accused had taken her to Adarsha Hospital at Udupi along with her friend Pramila for virginity test by suspecting her chastity. Despite the advise given by the complainant, the accused continued his attitude of suspecting her chastity and had cautioned Shruthi not to inform the said fact to her parents. It is further case of the prosecution that, on 4.11.2008, they had been to Shivamogga for purchasing

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clothes for the marriage. While they were in Shivamogga, on seeing the message sent by Sri.Nanjunda to Shruthi's mobile after 3.00 p.m. she was weeping. Later, on the same day night, after talking with the appellant – accused, Shruthi was in distressed state and did not have the meals. Later on, unable to bear the harassment and ill-treatment given by the appellant – accused, on 5.11.2008 at 8.00 a.m., she consumed poison and while under treatment died at Shiralakoppa Government Hospital. On enquiry, it came to the light that on 4.11.2008 at 15:57:32, the accused through mobile No.9845046084 had sent a message like "Nanna jeevanadinda doora hodare saku ninu. Ninna genekarana jote jeevana poora awana jote malkonde irbahudu, ninnanta hadaragitti mele nanna preeti aytalla chi'' to the complainant's mobile phone which was being used by Shruthi. So, daughter of the complainant being insulted by the appellant – accused, has committed suicide by consuming poison. On the complaint given by father of the

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NC: 2024:KHC:5205 CRL.A No. 1138 of 2012

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deceased ie., CW1, a case came to be registered against this appellant - accused.

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After investigation, charge sheet came to be filed against the appellant - accused for the offence under Section 306 of IPC and Sections 3 and 4 of the D.P.Act. After committal of the case, learned Sessions Judge has framed the charge against this appellant - accused for the offence under Section 306 of IPC and Sections 3, 4 and 6 of the D.P.Act.

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In order to prove the charge, the prosecution has examined fifteen witnesses as PWs.1 to 15 and got marked the documents Exs.P1 to P16 and MOs.1 and 2. The statement of the appellant - accused came to be recorded under Section 313 of Cr.P.C. The Trial Court after hearing the arguments on both sides, formulated the points for consideration and after appreciating the evidence on record, has passed the impugned judgment of conviction and sentenced the appellant - accused for the offence under Section 306 of IPC as noted above. The

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said judgment of conviction and order of sentence has been challenged in this appeal.

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Heard the arguments of learned counsel for the appellant – accused and the learned High Court Government Pleader for the respondent - State.

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Learned counsel for the appellant – accused would contend that the prosecution has not established that mobile No.9845046084 is of the appellant – accused and he was using the same. The Investigating Officer has not collected the call detail records of the said mobile number and also not collected the information regarding who is the subscriber of the said mobile number from the service provider. He contends that as per the evidence of PW8, the said mobile number was used by the deceased and in Ex.P13 - O.P.D chit of Adarsha Hospital, the said mobile number is mentioned as mobile number of the deceased. Therefore, the prosecution has failed to establish that the appellant – accused has sent the SMS to the deceased. He contends that the alleged suicide note - Ex.P6 does not

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contain any positive word, so as to instigate the deceased to commit suicide. He contends that there is a discrepancy in the evidence of PW5 regarding producing the death note - Ex.P6 by her and the evidence of PW8 - classmate of the deceased taking out the said death note from the bag of the deceased. The hand writing in Ex.P6 has not been proved to be of the deceased by comparing with the admitted hand writing of the deceased. There is no connecting evidence that PW13 – Dr.Chayalatha was a visiting doctor to the Adarsha Hospital, Udupi and the certificate issued by her as per Ex.P15 is on her letter head and not on the letter head of the Adarsha Hospital. He contends that the evidence on record is not sufficient to hold that this appellant – accused has sent the SMS which instigated the deceased to commit suicide. On this contention, he places reliance on the following decisions:

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“1. (2020) 10 SCC 200 reported in Gurucharan Singh Vs. State of Punjab .

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(2019) 10 SCC 188 reported in State of West Bengal Vs. Indrajit Kundu and Others .

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NC: 2024:KHC:5205 CRL.A No. 1138 of 2012

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(2001) 9 SCC 618 reported in Ramesh Kumar Vs. State of Chhattisgarh.

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(2019) 3 SCC 315 reported in M.Arjunan Vs. State Represented by its Inspector of Police.

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(2019) 17 SCC 301 reported in Ude Singh and Others Vs. State of Haryana.

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1995 Supp (3) SCC 438 reported in Swamy Prahaladdas Vs. State of M.P. and another.

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(2002) 5 SCC 371 reported in Sanju Alias Sanjay Singh Sengar Vs. State of M.P.

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(2010) 1 SCC 707 reported in Amalendu Pal Alias Jhantu Vs. State of West Bengal.

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(2010) 12 SCC 190 reported in S.S.Chheena Vs. Vijay Kumar Mahajan and another.”

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On these grounds, he prayed to allow the appeal and acquit the appellant - accused.

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Learned High Court Government Pleader for the respondent - State argued that the Trial Court on proper appreciation of the evidence on record, has rightly convicted the appellant – accused. She has supported the

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reasons assigned by the Trial Court. She further argued that the evidence of PWs.4 to 8, 13 and 14 is sufficient to convict the appellant – accused for the offence under Section 306 of IPC. On these grounds, she has sought for dismissal of the appeal.

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On the grounds made out and considering the arguments advanced, the following point arises for my consideration;

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“Whether the Trial Court erred in convicting the appellant – accused for the offence under Section 306 of IPC?”

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My answer to the above point is in the affirmative for the following reasons;

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The deceased Shruthi committed suicide by consuming poison contained in MO.2 – poison bottle and her death is suicide, is not in dispute. It is also not in dispute that there were marriage negotiations and marriage of the deceased Shruthi was fixed with the

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appellant – accused and the date of marriage was on 14.11.2008. The evidence of mother of the deceased ie.,

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PW5 would go to establish that after fixing of the marriage, the appellant – accused used to go to their place and used to take the deceased out and used to spend time with her on that day, he had visited several times and had taken the deceased out.

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The evidence of PW13 – Dr.Chayalatha, Ex.P13 – O.P.D Chit, Ex.P14 – case sheet of Adarsha Hospital, Ex.P15 – certificate issued by PW13 – Dr.Chayalatha and the evidence of PW8 – friend and classmate of the deceased would establish that there was a virginity test conducted on the deceased in Adarsha Hospital and in the test, the deceased was found virgin as her hymen was found intact. The said virginity test was conducted on 15.10.2008. The appellant – accused has disputed that he got conducted virginity test, but evidence of PW8 – friend and classmate of the deceased and PW13 – Dr.Chayalatha who has identified the appellant – accused, as having

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brought the deceased for virginity test would establish that the appellant – accused took the deceased to Adarsha Hospital for the virginity test.

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In the said virginity test conducted on the deceased,

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it is found that the deceased is virgin. Therefore, there is no question of suspecting the chastity of the deceased by the appellant – accused. It is the case of the prosecution that a message has been received in the mobile of CW1 from mobile number 9845046084. The said mobile of CW1 has been seized under mahazar – Ex.P4 from the spot. The said mobile is at MO.1 and its number is 9902206041 and it is in the name of CW1 - Sri.Basavarajappa – father of the deceased. CW1 has not been examined since he

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has expired prior to commencement of trial. The call details record of the said mobile number 9902206041 is at Ex.P16. The said Ex.P16 indicates that the said mobile number is in the name of CW1 – Sri.Basavarajappa. In the complaint – Ex.P1, it is stated by CW1 that the deceased was using his mobile. The mobile which is

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seized from the spot under mahazar – Ex.P4 is having the same number ie, 9902206041. The said message received in the mobile number 9902206041 from mobile number 9845046084 on 04.11.2008 at 15.57.32 hour, reads as under;

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“Nanna Jeevanadinda doora hodare saku ninu. Ninna Genekarana jote jeevana poora awana jote malkonde irbohudu, ninnanta hadaragitti mele nanna preeti aytalla chii.”

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Even though the text is in English, but it is typed in Kannada language, which can be read as under;

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“£À£Àß fÃªÀ£À¢AzÀ zÀÆgÀ ºÉÆÃzÀgÉ ¸ÁPÀÄ ¤Ã£ÀÄ. ¤£Àß UÉuÉPÁgÀ£À eÉÆvÉ fÃªÀ£À ¥ÀÆgÀ CªÀ£À eÉÆvÉ ªÀÄ®PÉÆAqÉ EgÀ¨ÉÆÃzÀÄ, ¤£ÀßAvÀºÀ ºÁzÀgÀVwÛ ªÉÄÃ¯É £À£Àß ¦æÃw DAiÀÄÛ®è aÃ.”

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It is the case of the prosecution that, on reading this message, the deceased was upset and she committed suicide and the appellant – accused has sent the said message to the deceased and abetted the deceased to commit suicide. The said text message has been received in the mobile of CW1, which was used by the deceased,

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from mobile number 9845046084, is stated to be of the appellant – accused. In Ex.P13 – O.P.D Chit of Adarsha Hospital, the said mobile number is mentioned as mobile number of the deceased. PW8 – friend and classmate of the deceased has stated in her cross examination that the mobile number of the deceased Shruthi is 9845086084.

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PW14 – uncle of the deceased stated that the appellant – accused has sent message to the mobile of the deceased from mobile number 9845046084 which was in the name of one Deepak. The Investigating Officer has not conducted any investigation regarding, in whose name, the said mobile number 9845046084 is standing, whether it is of Sri.Deepak or it is of the appellant – accused and who is the subscriber of that mobile number 9845046084.

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In view of the above, it is noted that, the evidence of PW8 that the mobile number of the deceased is 9845046084 and the evidence of PW14 that the mobile number 9845046084 is in the name of Sri.Deepak and in Ex.P13 – O.P.D Chit of Adarsha Hospital, it is stated that

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the said mobile number 9845046084 is of the deceased Shruthi. Therefore, there is no connecting evidence that the said text message sent from 9845046084 is sent by the appellant – accused to the mobile used by the deceased standing in the name of her father.

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Ex.P6 is the death note said to have been written by the deceased. PW8 – classmate of the deceased, PW5 – mother of the deceased, PW14 – uncle of the deceased have identified the hand writing in Ex.P6, as that of the deceased. In Ex.P6 praising words are used by the deceased towards the appellant – accused. There are no contents in Ex.P6 to show that this appellant – accused instigated her to commit suicide. Ex.P6 only contains that this appellant – accused has suspected her character. In Ex.P6, the deceased has praised the appellant – accused and wished him good life, health and she wished to be his partner and nothing else. Therefore, considering all these aspects, the evidence on record would not establish that this appellant – accused instigated the deceased to

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commit suicide. The Trial Court has erred in holding that the appellant – accused instigated the deceased to commit suicide and convicted the appellant – accused for the offence under Section 306 of IPC. In the result, the following;

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ORDER

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(i) The appeal is allowed . The impugned judgment of conviction and order of sentence passed in S.C.No.147/2010 by the Principal Sessions Judge, Shivamogga is set-aside. The appellant – accused is acquitted of the offence under Section 306 of IPC.

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(ii) In view of acquittal of the appellant – accused, the order dated 25.01.2024 is recalled and accordingly I.A.No.1/2024 is allowed .

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(iii) Issue intimation to the Trial Court regarding recall of the order dated 25.01.2024.

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Sd/JUDGE

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List No.: 1 Sl No.: 3

Nanjundeshwara v. State by Sorba Police

Case brief

What is this about?

What did the court decide?

Nanjundeshwara v. State by Sorba Police

Case brief

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