Allowed

Sri Raghavendra Gupta v. State of Karnataka

Karnataka HC25 Jul 2024CRL.A/455/2014

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court acquitted the appellants of charges under section 498A read with section 34 of IPC. The court held that the prosecution failed to prove harassment or cruelty, noting contradictions between contradictory documents and doubts regarding the deceased's competency to make a dying declaration due to severe burn injuries.

What did the court decide?

The judgment of conviction and sentence is set aside. Accused nos. 1 and 2 were acquitted of charges under Section 498A read with Section 34 of IPC and set at liberty. Records were sent back to the tr

Sri Raghavendra Gupta Vs State of Karnataka — Matrimonial and Divorce | Karnataka HC (2024)

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1 - NC: 2024:KHC:29527 CRL.A No. 455 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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CRIMINAL APPEAL NO. 455 OF 2014 (C)

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BETWEEN:

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SRI. RAGHAVENDRA GUPTA @ RAGHU.G, S/O G. GOPALA KRISHNA SHETTY, AGED ABOUT 32 YEARS, OCC: CLOTH BUSINESS.

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SMT.LAKSHMI W/O G. GOPALA KRISHNA SHETTY, AGED ABOUT 63 YEARS, OCC:HOUSE WIFE,

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BOTH ARE RESIDING AT C/O BADRINATHS HOUSE, NO.16, S.K.LANE, CHIKKAMAVALLI, BANGALORE- 560 004.

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…APPELLANTS

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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(BY SRI MURARI MOUNI K.M, ADVOCATE)

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AND:

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STATE OF KARNATAKA THROUGH P.S.I SARJAPURA POLICE STATION SARJAPURA, BANGALORE (R) DISTRICT BANGALORE.

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…RESPONDENT

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(BY SRI K. NAGESHWARAPPA, H.C.G.P)

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THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:27.5.14 PASSED BY THE III ADDL. DIST. AND S.J., BANGALORE RURAL DIST., SIT AT ANEKAL IN

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S.C.NO.365/11 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 498A R/W 34 OF IPC.

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

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CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

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Appellants - accused nos.1 and 2 have filed this

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appeal being aggrieved by the judgment of conviction and order of sentence dated 27.5.2014 passed by the III Addl. District and Sessions Judge, Bengaluru Rural District sitting at Anekal. The learned trial Court, by passing the impugned judgment, found the accused nos. 1 and 2 not guilty for the offences punishable under Section 506, 306 read with Section 34 of IPC whereas, found the accused nos. 1 and 2 guilty for the offence punishable under Section 498A read with Section 34 of IPC and sentenced them as under:

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"The accused no.1 and 2 are hereby sentenced to undergo imprisonment for 2 years each and to pay a fine of Rs.5000/- each in default to undergo SI for 3 months each for the offence punishable U/s.498A R/w 34 of IPC".

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Parties to this appeal are referred to as per their rank before the trial Court for the purpose of convenience.

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Facts of the case:

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That, deceased Kalashri is the wife of accused no.1. Her marriage with accused no.1 was performed on

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8.5.2011 at Kannikaparameshwari Kalyana Mantapa at Benguluru. Accused no.2 is the mother of accused no.1. It is stated that, after marriage, deceased started her matrimonial life in the house of accused nos. 1 and 2 and stayed there for a period of 20 days. It is alleged in the complaint that, during her stay with the accused in her matrimonial home, both the accused harassed and illtreated the deceased mentally and physically. Even they gave a life threat to her. They used to give threat stating

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that, they are going to set fire on her by pouring kerosene. It is stated that, the deceased was unable to tolerate this mental and physical cruelty. On 3.8.2011, at 5.00 p.m. when she was in her parents house, in the

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absence of inmates of house, got poured the kerosene oil in the bathroom and set fire for herself. Because of this, she sustained burn injuries and was admitted to Victoria Hospital for treatment. But, she succumbed to the injuries at 2.40 a.m. on 4.8.2011 in the aforesaid Hospital.

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It is the case of the prosecution that, one S.V.Shantharaju S/o.late S.P.Venkatesh Shetty, the father of deceased went to the Sarjapura Police Station at 9.00 a.m. on 4.8.2011 and lodged a written complaint as per Ex.P1 before PW.15, one Sri M.Raghavendra, the then PSI of Sarjapura Police Station. Based upon Ex.P1 he registered a crime in the Crime No.107/2011 and set the criminal law in motion by sending F.I.R. as per Ex.P11 to the Court and to his superior officers.

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PW.15 requested the Taluka Executive

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Magistrate to conduct inquest Panchanama on the dead body of deceased and went to the Victoria Hospital. After completion of inquest Panchanama, he sent the dead body for post mortem and thereafter, handed over the dead

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body to her legal heirs. Thereafter, he went to scene of offence and conducted Panchanama in the presence of Panchas as per Ex.P4, seized MO Nos.1 to 3. Recorded the statement of witnesses. After collecting necessary documents and after completion of investigation, he filed charge sheet against accused persons for the offences punishable under Section 498A, 306, 506 R/w.34 of IPC.

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To substantiate the allegations made against the accused persons, prosecution in all examined 15 witnesses as PWs. 1 to 15 and got marked Ex.P1 to P13 with respective signatures and also MO NOs.1 to 3. During the course of cross-examination, the portions of statements of PW.3 and 4 were marked as Ex.D1 to D3.

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On evaluation of the evidence and on hearing the arguments of both the side, the learned trial Court, passed the impugned judgment which is under challenge in this appeal by the appellants. So far as acquittal of the

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accused for the offences under Section 506, 306 read with Section 34 of IPC, the State has not preferred any appeal.

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Thus, the judgment of acquittal of accused for the said offences has become final.

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The learned counsel for the appellants-accused with all force submits that, it is a case of suicide by the

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deceased. Deceased stayed in her matrimonial home just for 20 days. She had made allegations as per the complaint allegations that, during her stay in her matrimonial home, these accused nos. 1 and 2 used to ill treat and harass her. The witnesses so examined in this

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case are not the eye witnesses to any of alleged ill-treatment or harassment. Though the IO has collected a chit during the course of investigation making allegations

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against accused but, the said handwriting of the deceased was not subjected to scientific examination. There is suppression of material facts by the IO There is no evidence placed on record so as to bring home the guilt of

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the accused to prove the ingredients of the offences alleged against him. It is his submission that, as per the PM report and medical records, deceased had sustained 95% of the burn injuries. When she has suffered such

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injuries, it was not possible to give any statement as per Ex.P5. Therefore, he submits that, the said Ex.P5 cannot be termed as `dying declaration'. The evidence so placed on record is not convincing and never attracts the ingredients of offence so alleged against the accused. This Ex.P5 has no evidentiary value.

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In support of his submission, he relied upon the evidence spoken to by the witnesses and also the reasons assigned by the trial Court. He submits that, the reasons for conviction so assigned by the trial Court are not based upon the evidence placed on record by the prosecution. There are material contradictions, omissions and improvements so as to rope the accused persons in the commission of crime. In addition to the grounds urged in the appeal memo, he submits that, accused are entitled for acquittal and hence, prayed to allow the appeal.

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As against this submission, the learned HCGP supported the reasons assigned by the trial Court. He submits that, considering the evidence placed on record,

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the learned trial Court has rightly come to the conclusion that accused are guilty of committing the offences under Section 498A of IPC. Such a well-reasoned judgment cannot be interfered with. Supporting the trial Court judgment, he prays to dismiss the appeal.

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On hearing the arguments of both the side and on evaluation of the evidence so placed on record by both the side, the following point arises for my consideration:

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"Whether the trial Court has committed any factual or legal error in appreciating the evidence in finding the accused guilty for the offence under Section 498A read with Section 34 of IPC?"

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So far as death of deceased Kalashri because of burn injuries, prosecution relies upon the contents of complaint Ex.P1, scene of offence Panchanama Ex.P4, inquest Panchanama as per Ex.P6, PM report as per Ex.P7 and also the evidence of inquest Panchas.

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On reading of all these documents, they do reveal that, deceased Kalashri had sustained 95% of burn injuries and it was opined by the doctor who conducted the post mortem that "death was due to shock as a result of burn injuries sustained". The doctor has noted the nature of external injuries on the person of the deceased. Even the photographs produced to show the burn injuries on the person of the deceased at Ex.P8 to P10. These documents do demonstrate that, by setting fire for herself, deceased succumbed to burn injuries so sustained by her. The FSL certificate collected by the IO as per Ex.P13 shows that, she sustained the burn injuries by pouring kerosene. Therefore, if this oral and documentary evidence is cumulatively read, it can be stated that, the prosecution is able to prove the suicidal death of the deceased.

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The allegation of the prosecution is that, after marriage of deceased with accused no.1 on 8.5.2011 at Kannikaparameshwari Kalayana Mantap, Bengaluru, deceased stayed in her matrimonial home for 20 days. She

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returned to her parents house to perform the " Ashadha Masa ". It is alleged by the prosecution that, during her stay in her matrimonial home, deceased was ill-treated and harassed both mentally and physically by accused nos. 1 and 2. Even they used to suspect the deceased and used to put restrictions on the deceased not to speak with any of her relatives on telephone.

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Ex.P1 is the complaint filed by PW.1 narrating the so called harassment and ill-treatment by the accused persons. Though he reiterates the contents of the complaint in his evidence on oath, but in the chiefexamination, there is lot of improvement with regard to alleged harassment and ill treatment. Evidently he is not an eye witness to any of these allegations. According to his complaint allegations and evidence spoken in examination-in-chief, his daughter informed him about the so called ill-treatment and harassment by the accused persons. When the incident of setting fire for herself took place in his house either himself or his wife were present.

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On getting information he went to the hospital and noticed the injuries on the person of the deceased.

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This PW.1 has been thoroughly cross-examined by the defence. For the first time, without responding to the abuse of accused persons, they brought their daughter to their house. It is an improvement brought on record in the cross-examination. It has come in the evidence of PW.1 that, his relatives are doing business. Near his house, there exists a telephone etc., There is no evidence spoken to by PW.1 that, during the stay of deceased in the house of accused, she called her parents and informed about the so called harassment and ill-treatment by the accused persons. PW.1 states that, it was one Nagaraj Shetty his friend wrote the complaint. He lodged a complaint before the ASI. He says, his wife and his younger daughter were taking care of deceased at Victoria Hospital. He states that, there was a Diary which was found in the bathroom and it was given to police at the time of Panchanama. He denied the suggestion that he

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has concocted Ex.P2, i.e., the handwriting of the deceased.

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On reading the evidence of PW.1 complainant, except the bald allegations of ill-treatment and harassment, that too hearsay evidence, there is no concrete evidence to prove that, really the deceased was harassed and ill-treated by accused persons in the manner stated in the complaint. If such evidence is placed on record through the complainant, it requires corroboration.

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PW.2 S.V.Prashanth was a neighbour of PW.1.

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According to him, on 3.8.2011, when he was in his shop, he heard the noise and when he went to the house of complainant, he came to know that, deceased Kalashri set fire for herself. People gathered there were making attempt to shift her to Town Hospital and thereafter, she was shifted to Victoria Hospital. It has come in the evidence of PW.2 that, his shop is situated at a distance of

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two furlongs from the house of complainant. As per his evidence, deceased Kalashri was shifted to the hospital in

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Auto Rickshaw. On reading the evidence of PW.2, on hearing the sound of hue and cry in the house of the complainant he went to the house and noticed that Kalashri sustained burn injuries. To that extent, the evidence of this witness is to be believed.

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Likewise, PW.3 Smt.Mohanapriya also was a neighbour. She too rushed to the house of the complainant and noticed the burn injuries on the person of the deceased and she accompanied the deceased to the Victoria Hospital. She had attended the marriage of the deceased. It has come in her evidence that, after marriage, deceased was not visiting her house. Her house is situated at a distance of 1 km. from the house of the complainant. So the evidence of PW.3 can be believed to the extent that, she rushed to the house of the complainant on hearing the sound of setting fire by the deceased and went to the said place.

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PW.4 S.A.Kishorekumar is the relative of deceased. He went to the house of the complainant only

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on hearing the news of this fire mishap with the deceased. He went to the hospital for seeing the deceased. He speaks about death of deceased in the hospital in the early morning hrs of 4.8.2011. According to him, because of the harassment by the husband of the deceased, she died. But, he is a hearsay witness as per his evidence. He has been cross-examined by the defence, According to his statement, he has not stated before police as per Ex.D3. Therefore, the evidence would not help the case of the prosecution.

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P.W.5 Rajeshwari W/o.Shantharaju is none else

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than the mother of the deceased. She corroborates the evidence of PW.1 in material particulars and speaks with regard to performing of marriage of deceased with accused no.1 by giving Rs.7,00,000/- towards dowry though there was a demand to pay Rs.10,00,000/-. She too states about the so called ill-treatment and harassment by the accused persons to her daughter. She has been cross-examined at length. According to her evidence, her parents by name Satyanarayana Shetty and

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Padmavathamma took lead to perform the marriage of deceased with accused. All her relatives had too much love and affection towards deceased including herself. According to her, when the incident took place, she was not in the house and came to know the incident through telephone. She rushed to the hospital. For the first time, she states that, she has informed her parents and sisters about the harassment and ill-treatment done by the accused on her daughter.

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The prosecution much relies upon a document collected during the course of investigation by the IO marked at Ex.P2. As per the prosecution, this was the letter addressed by the deceased before her death on 3.8.2011. For immediate reference, it is just and proper to incorporate the said handwriting so noticed in Ex.P2 in this judgment:

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"CªÀÄä ¤£Àß ¥ÀæPÀgÀ £Á£ÀÄ CAzÀgÀ PÀ�Á²æÃ NªÀð ¸ÀÄ¼ÀÄîUÁw, ªÉÆ¸ÀUÁw PÀ½î, ¤£Àß ªÉÄ�É ºÀuÉªÀiÁr ªÀiÁvÀÄÛ vÀ¦àzÀÝªÀ¼ÀÄ. CªÀÄä £À£Àß£ÀÄß PÀë«Ä¸ÀÄ £À¤ßAzÀ ¤£ÁßUÁ°è, vÀAzÉÃUÁ°è, £ÀªÀÄä PÀÄlÄA§zÀªÀjUÁUÀ°è £ÉªÀÄä¢AiÀÄ£ÀÄß PÉÆqÀ°®è. £À£Àß£ÀÄß PÀë«Ä¹ £À£Àß fÃªÀ£À ºÁ¼ÁV ºÉÆÃ¬ÄvÀÄÛ. £À£ÀßUÉ §zÀÄPÀ®Äè EµÀé«®è. CzÀjAzÀ £À£Àß£ÀÄß PÀë«Ä¹ £À£Àß C°è £ÉªÀÄä¢ E®è. E°èAiÀÄÆ £À£ÀßUÉ £ÉªÀÄä¢AiÀÄ£ÀÄß ºÀ¼ÀÄªÀiÁqÀ®Ä EµÀé«®è CzÀjAzÀ £Á£ÀÄ F ¤zÀðgÀPÉÌ PÉÊ ºÁQzÉ.

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CªÀÄä, C¥Àà JA¢UÀÆ £À£Àß£ÀÄß ªÀÄgÉAiÀÄ¨ÉÃr.

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EAw ¤ªÀÄä PÀ�Á²æÃ £À£Àß£ÀÄß J®èjVAvÀ ¦æw¬ÄAzÀ £ÉÆrPÉÆAqÀ £À£Àß vÁvÁÛ£Àß ªÀÄ£ÉAiÀÄªÀgÀ, £À£Àß zÉÆqÀØªÀÄä£À ªÀÄ£ÉAiÀÄªÀgÉÃ, ºÁUÀÆ J®ègÀÆ £À£Àß PÀë«Ä¹ö

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Bye I LOVE MY FAMILY Pls don't forgot me in your life pls

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Over leaf

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£À£ÀßUÉ ªÀÄzÀÄªÉAiÀiÁzÀgÀÆ ¸ÀºÀ £Á£ÀÄß E£ÀÆß PÀ£ÀåAiÀiÁVAiÉÄÃ E½¢zÉÃ£É. CzÀPÉÌ PÁgÀt £À£Àß CvÉÛ ºÁUÀÆ £À£Àß UÀAqÀ CªÀgÀÆ PÉÆlÖ QgÀÄPÀÄ¼À ºÁUÀÆ CªÀgÀÄ ºÁrzÀ ªÀiÁvÀÄÛUÀ¼À£ÀÄß PÉÃ¼ÀÄªÀÅzÀPÉÌ CUÀÄwÛgÀ°®è. CzÀjAzÀ £À£Àß F ¤zÀðgÀªÀ£ÀÄß vÉUÉzÀÄPÉÆAqÉÃ".

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On reading the entire text of this Ex.P2, she has

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apologized for her mistake to her mother. It is stated by her that, because of her mistakes, the reputation of the family has been damaged. She has stated that, nobody in the house should forget her. On the overleaf of Ex.P2, it is stated that, though she is married, she is still virgin and for this, the accused are the cause. The accused ill-treated her and used to harass her by abusing her etc. Therefore, she has taken such drastic decision.

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The learned trial Court, commenting on Ex.P2 has come to the conclusion that, the contents of this Ex.P2 never constitute an offence of abetment to commit suicide and rightly acquitted the accused persons. Even on re-appreciating the contents of the same, it can never be stated that, such handwriting really belongs to the deceased or not. To get confirmation of the same, the investigation officer has not ventured to send Ex.P2 for scientific examination to get comparison of the handwriting of the deceased to that of admitted handwritings as the defence has seriously disputed the contents of this Ex.P2.

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In the cross-examination directed to PW.1 it is suggested that, this Ex.P2 is created but, he denied the suggestion. So also, it is suggested to PW.5 that, when PW.5 left Bengaluru on 3.8.2011, she abused Kalashri as a

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cheater, thief, liar etc., But, she denied the suggestion. But, contents of this Ex.P2 shows that, it was PW.5 who had abused deceased as stated in Ex.P2. But on the overleaf of Ex.P2 certain allegations are made.

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It is submitted by the counsel for the defence that, on going through the face page of Ex.P2 and overleaf, it is noticed that, the ink so used for writing this Ex.P2 on the face sheet as well as on the overleaf is not identical or one and the same. By submitting so, he submits that, the contents of this overleaf handwriting are written after demise of deceased so as to implicate these accused persons. There is some substance in his submission for the simple reason that, the IO had not taken any steps to send this Ex.P2 for scientific examination for comparison of the hand writing. It is a clear case of lacuna or lapse on the part of the IO.

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Evidently this PW.5 is not an eye witness to any of the allegations made in the complaint. Therefore, her evidence would not help the case of the prosecution to prove the contents of the complaint.

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PW.6 Raghavendra Shetty is a person who went

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to the hospital to see the deceased and came to know about death of deceased because of burn injuries on

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account of ill treatment by her husband. This PW.6 was not further examined by prosecution. Therefore, this evidence of PW.6 remained without any further examination or cross-examination hence, it can be stated the evidence of PW.6 is non-est in the eyes of law.

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PW.7 Hamsashri is sister of deceased.

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According to her evidence, her sister stayed in her matrimonial home for 20 days. When her parents and herself went to bring Kalashri to her parental house at that time, accused made galata by stating that, they are not going to send her. But, even then, they brought her. The accused did not come to the house to see the deceased. Even her husband did not call her on telephone. For the first time, she states that, as per the say of deceased, her husband accused no.1, used to sleep in a separate room and never slept with deceased. There is no such statement given by her before the Police. She too is hearsay witness to the said witness. According to her, on 3.8.2011, she was sitting in the shop and came to the house at 4.30 p.m. for the purpose of going some where. At that time,

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she heard the noise from bathroom. She rushed to the bath room and noticed burn injuries on the person of deceased. The neighbours gathered there shifted her to the hospital.

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She admits in the cross-examination that, whatever her sister had told her with regard to the sleeping of her husband separately, she has not stated the same before the Tahsildar when recorded her statement while conducting inquest Panchaanama. As she is not an eye witness to the said incident, her evidence would not help the case of the prosecution except proving her relationship with the deceased.

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PW.8 Dr.Manjula C., was the doctor on duty on 3.8.2011 at V.H at 11.30 p.m. She was taking care of emergency ward on that day. It is her evidence that, at 11.30 p.m. on 3.8.2011, the PSI of Sarjapura P.S., came to hospital and sought her permission to record the statement of the deceased Kalashri. Accordingly at 11.40 p.m. she issued a certificate and permitted PSI to record

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her statement. It is her evidence that, the PSI recorded the statement of Kalashri in her presence and he took her thumb impression on the said statement. It is her further evidence that, when she gave a statement till completion of statement, Kalashri was physically and mentally sound. To that effect, PW.8 has issued endorsement. According to her, the PSI completed the recording of statement at 00.20 a.m. on 04.08.2011. She identified the statement as per Ex.P5 and her signature as per Ex.P5(a) and endorsement as per Ex.P5(c).

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She has been cross-examined at length by the defence. She deposes that, she does not know, at what time, deceased Kalashri was admitted to Victoria Hospital. She admits that when a patient with burn injuries is admitted to Victoria Hospital., such patient would be first admitted to Emergency Ward. With regard to admission, patient's name will be entered in MLC register and a memo will be sent to the Out-Post situated at Victoria Hospital. According to her, she has not inspected the said MLC register. It is her evidence that, her duty started on 8.00

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p.m. on 03.08.2011 in the emergency ward and completed

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at 8.00 a.m. on 04.08.2011. She states in the said emergency ward, herself and another doctor were on duty on that day. She states that, any of the wards in emergency section were not under her responsibility. She states that, in the burn ward, a separate sheet is maintained with regard to burn injuries sustained by the patients. She has not seen the case sheet pertaining to the deceased on that day. She is unable to state that, how many burn injuries were sustained by the deceased. According to her, she might have sustained 30 burn injuries. In unequivocal terms, she states that, she was not deputed to treat the burn injury patients and unable to say who was the duty doctor in the burn injury ward on that day. It is her evidence that, the doctors were very much available in the said ward and they were treating her. But, she does not know their name. According to her, when PSI Sarjapura P.S came to record the statement of Kalashri, duty treating doctor had not come to the said ward. Even she has not made any attempt to call the

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duty-treating doctor. There was one Nurse on duty on that day. She has not stated who was that nurse on duty on that day in her certificate. She does not know who were present on that day while taking the signature of Kalashri on the statement.

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On reading the evidence of PW.8, though she states that, she has certified about the physical, mental and medical condition of Kalashri to give a statement to the police but, she was not the duty doctor at that time. The duty-treating doctors were present would have been the best doctors to speak about physical and mental condition of Kalashri. Even she has not made an attempt to call them. As per the 'PM Report' and evidence of other witnesses, including PW.8, deceased had sustained 95% of burn injuries on her person. Whether, a patient having suffered 95% burn injuries was capable of giving statement is not stated by this PW.8 either in the examination-in-chief or in cross-examination. She was not a duty doctor, not a treating doctor and she was deputed to emergency ward. So what was the competency of this

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PW.8 to certify about the condition of Kalashri is not explained by the prosecution. Even the evidence of IO is also very much silent to that effect.

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Under the medical jurisprudence a patient having suffered more than 80 to 90% burn injuries may be capable of giving statement. As per the contents of Ex.P5, the statement of deceased was recorded by the PSI. This Ex.P5 shows that, the statement of the deceased was recorded at 12.20 a.m. From what time to what time, deceased gave her statement is not mentioned in this Ex.P5. The very certification of PW.8 about the mental condition, in view of her evidence spoken to in her evidence both in examination-in-chief and crossexamination creates a doubt.

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In Ex.P2, certain allegations are made by the

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deceased against her own mother alleging that her mother has abused her and she has sought apology for her conduct. If really, the deceased was really harassed and ill treated by the accused persons in the manner stated in

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Ex.P5, nothing prevented her to say the similar allegations in Ex.P2 when she was quite hale and healthy before

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pouring kerosene and setting fire for herself. But, she gave a statement as per Ex.P5 making allegations against accused persons when she suffered 95% of burn injuries. Thus, the contents of Ex.P5 are doubtful that, whether such a statement was really given by the deceased or not

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in the hospital as alleged by the prosecution. Even evidence of PW.8, the doctor also does not inspire confidence that, her certification of condition of the deceased was really true or not. Therefore, evidence of PW.8 never helps the case of the prosecution to prove the statement of deceased per Ex.P5.

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PW.9 Pradeep Kumar is the scene of offence

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Pancha who was very much present when the Police came to the scene of offence and conducted Pancahnama on

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4.8.2011. No effective cross-examination is directed to

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this witness. Therefore, in view of evidence of PW.9, it can be stated the scene of offence Panchanama is proved.

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PW.10 Ravindranath and PW.11 Prasanna are

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the inquest Panchaas who were present when the inquest Panchanama was conducted by Taluka Executive Magistrate (Tahsildar) as per Ex.P6. They speak about their presence and preparation of inquest Panchanma by Taluka Executive Magistrate. Except denial, nothing is elicited from their mouth. Even the defence also does not dispute the contents of Panchanama. Therefore, Ex.P6 is proved by the prosecution.

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PW.12 Dr. Jeralden Sanjay was the doctor who conducted the PM on the dead body of deceased and issued Ex.P7. He has been cross-examined by the defence. With regard to the death of deceased because of burn injuries, he admits. He states that, if the burn injuries are more than 50%, they are dangerous to the life. All the injuries so sustained by the deceased were serious burn injuries. He states that, lady doctor has not conducted the Post Mortem. The evidence of PW.12 can be believed to the extent that, he has conducted the post mortem on the dead body of deceased Kalashri and issued Ex.P7. She had

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sustained 95% burn injuries on her person. PW.13 Santhosh Dali was the police constable. He carried 10 litre can to FSL for the purpose of FSL examination. No crossexamination is directed to him. Therefore, evidence of PW.13 can be accepted to the extent, he carrying said 10 litres can to the FSL.

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PW.14 H.N.Shivegowda was Taluka Executive Magistrate (Tahsildar) of Anekal at the relevant time who conducted the inquest Panchanama on the dead body of the deceased in the presence of Panchas and recorded the statement of witnesses therein and issued Ex.P6. Conducting of inquest Panchanama is not disputed by the defence. He being the hearsay witness, certain irrelevant questions were asked to this PW.14 by the defence which are not at all warranted with regard to alleged harassment, ill-treatment etc. Though he recorded the statement of witnesses but, his evidence can be accepted to the extent of preparing of inquest Pancahama.

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PW.15 M.Raghavendran, is the IO having received the complaint, conducted the investigation, recorded the statement of witness and after completion of investigation filed charge sheet against the accused. It is elicited in the cross-examination that, when he went to the hospital deceased Kalashri was taking treatment at burn Ward in Victoria Hospital. But, PW.8 states that she was taking treating at emergency ward. He has not noticed any other doctor other than Dr.Manjula in the said hospital on that day. According to him, during the lifetime of deceased, she gave a statement as per Ex.P5. He denied suggestion that, he has created Ex.P5.

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In view of evidence of PW.8, as there is no evidence spoken to by this with regard to mental and physical condition of deceased and getting certificate from duty doctor, it creates doubt as to recording of statement by this IO. Even the witnesses so spoken before the trial Court have not stated as per Ex.D1 to D3 as per their evidence before the Court. Though marriage of deceased Kalashri is admitted with accused but, the very ill

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treatment and harassment is not proved in accordance with law.

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No doubt, the offence under Section 498A is a serious offence against married women. When such an offence is leveled against the accused persons, it is the bounden duty of prosecution to prove all ingredients of offence. No doubt, the deceased died within 20 days of her marriage. A presumption is very much available with regard dowry demand, ill treatment harassment under the Indian Evidence Act, 1872. But, however, in a case of present nature, it is the duty of the prosecution to prove all the ingredients of the offence. Here, the deceased herself poured kerosene on her in the bathroom of her parent's house in the absence of any of the inmates of the house by writing Ex.P2, making certain assertions about her mother and sought apology. The very contents of Ex.P2 and P5 are doubtful. Except the hearsay evidence of witnesses, there is no connecting link to establish guilt of the accused.

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Though accused nos. 1 and 2 were charged and convicted for the offence under Section 498A of IPC but, it is for the prosecution to prove the connecting ingredients of the said offence. It is stated by the Tahsildar that, when he was recording the statement, he came to know that accused no.1 is impotent etc. and there was no consummation of marriage. Either PW.1 or PW.5 being the parents of the deceased never speak about the said fact. In view of Section 113 A of evidence Act, no doubt a presumption may be drawn, if victim commits suicide. But in this case, the trial Court has acquitted the accused persons for abetting to commit suicide. When abetment to commit suicide is not proved, then assertions about the harassment and ill-treatment by accused persons on the person of deceased has to be established by the prosecution by leading acceptable evidence.

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As per the provisions of IPC to attract the

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provisions of 498A of IPC, the prosecution is under obligation to prove the ingredients of offence under

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Section 498A of IPC. The said ingredients or requirement

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read as under:

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" a) The women must be married.

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b) she must be subjected to harassment and cruelty.

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c) such harassment and cruelty must be by her husband and his relatives.

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d) that means there must be a clear allegation that, the accused no.1 being the husband in this case harassed the deceased because of his willful conduct, beaten her, insulted her etc., soon before her death".

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In this case, such ingredients are missing.

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Contents of Ex.P2 and P5 falsify the very allegations as both are contradictory in nature. If one is believed, the other cannot be believed at all. The learned trial Court has

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not appreciated the evidence with regard to proof of offence under Sec.498A of IPC. By not appreciating the evidence properly has wrongly come to the conclusion that, the prosecution is able to prove offence under

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Section 498A read with Section 34 of IPC. In view of

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non-fulfillment of ingredients of offence under Section 498A of IPC which are not forthcoming from the testimony

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of the witnesses, it can be stated that, prosecution has

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utterly failed to prove its case with legal and acceptable evidence. Therefore, such a judgment of conviction and order of sentence require interference by this Court.

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In view of the foregoing reasons, the appeal deserves to be allowed. Accused nos. 1 and 2 are to be acquitted of the charges under Section 498A read with Section 34 of IPC. Accordingly the aforesaid point is answered in favour of the appellant and against he prosecution. Resultantly, I pass the following:

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ORDER

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(i) Appeal is allowed . The judgment of conviction and order of sentence passed in SC No.365/2011 dated 27.05.2014 by the III Addl. District and Sessions Judge, Bengaluru Rural District sitting at Anekal, is hereby set aside.

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(ii) Consequentially, accused nos. 1 and 2 are acquitted of charges under Section 498A read with Section 34 of IPC.

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(iii) Their bail bonds stand cancelled. They are set at liberty.

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(iv) Send back the trial Court records along with copy of this judgment forthwith.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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SK List No.: 2 Sl No.: 1

Sri Raghavendra Gupta v. State of Karnataka

Case brief

What is this about?

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Sri Raghavendra Gupta v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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