B H Shanthamma Vs Y Jayappa

B H SHANTHAMMA W/O Y JAYAPPA AGED ABOUT 39 YEARS HOUSE HOLD AND STUDYING IN S.J.M SCHOOL OF NURSING COLLEGE CHITRADURGA R/O KODAGAVALLI VILLAGE HIREGUNTANUR HOBLI CHITRADURGA TALUK – 577 501.

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…APPELLANT

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(BY SRI SHASHIDHARA R, ADVOCATE)

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AND:

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Y JAYAPPA

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

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S/O LATE YALLAPPA AGED ABOUT 59 YEARS AGRICULTURIST.

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RENUKAMMA W/O Y JAYANNA AGED ABOUT 28 YEARS COOLIE.

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BOTH ARE R/O SONDEKOLA AND HALIYUR VILLAGE, HIREGUNTANUR HOBLI CHITRADURGA TALUK – 577 501.

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OBAIAH FATHER NAME NOT KNOWN

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AGE 69 YEARS R/O HALIYUR VILLAGE HIREGUNTANUR HOBLI CHITRADURGA TALUK – 577 501.

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…RESPONDENTS

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(BY SRI SRINIVASA BABU, ADVOCATE FOR R1 V/O DTD. 16.06.2015, SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT. V/O DTD. 23.10.24, APPEAL AGAINST R3 IS DISMISSED AS ABATED)

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THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED 18.9.2013 PASSED BY THE PRINCIPAL C.J. AND J.M.F.C., CHITRADURGA IN C.C.No.1289/2005 - ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 494 AND 109 OF IPC AND ETC.,

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

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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 complainant challenging the judgment of acquittal dated 18.09.2013 passed in C.C.No.1289/2005 by the Principal Civil Judge and J.M.F.C, Chitradurga, whereunder, respondent Nos.1 to 3 have been acquitted of the offences punishable under Sections 494 and 109 of the Indian Penal Code, 1860 (for short hereinafter referred to as ‘IPC’).

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The factual matrix of the case of the complainant in brief is as under;

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The complainant namely Smt.B.H.Shanthamma is the legally wedded wife of respondent No.1 – accused No.1 and their marriage came to be solemnized on 21.12.1994 at S.J.M.Samudaya Bhavan, Chitradurga according to the customs and usages prevailing in their community. The complainant and respondent No.1 lived together and out of their wedlock, they begot two sons by names Raghavendra and Sri.Shashidhara. After lapse of three years, respondent No.1 – accused No.1 started harassing the complainant physically as well as mentally. Respondent No.1 – accused No.1 has thrown the complainant out of the matrimonial home situated at Sondekola village and therefore, the complainant started residing in the rented house of one Sri.Chandrappa of Sondekola village. Respondent No.1 – accused No.1 had instituted matrimonial case in M.C.No.6/2003 seeking decree of divorce by making false and untenable

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allegations against the complainant. That, on 30.05.2004, at Rangaswamy temple at Ganjigatte village, Chitradurga taluk, at the instigation of the other accused, accused No.1 had taken accused No.2 as his second wife during the subsistence of marriage with accused No.1 and the complainant. The accused persons have committed the offences under Sections 494, 495, 496 and 109 of IPC. The complainant came to know of the fact of second marriage of accused No.1 through her relative and thereafter, she enquired with the parents of accused No.2 and collected details regarding the marriage and filed the complaint. The learned Magistrate has recorded the sworn statement of the complainant and taken cognizance of the offences punishable under Sections 494 and 109 of IPC against accused Nos.1 to 4. Charge came to be framed against accused Nos.1 to 4 for the offences under Sections 494 and 109 of IPC. The accused not pleaded guilty.

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The complainant, in order to prove the charge has examined herself as PW1 and got examined four witnesses

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as PWs.2 to 5 and got marked the documents as Exs.P1 to P8 and Exs.C1 to C3. Statement of the accused persons came to be recorded under Section 313 of Cr.P.C. Accused No.4 died during the pendency of the case before the Trial Court and case against him came to be abated. The learned Magistrate, after hearing the arguments on both sides, has formulated the points for consideration and thereafter, passed the impugned judgment of acquittal, acquitting accused Nos.1 to 3 who are respondent Nos.1 to 3 herein for the offences under Sections 494 and 109 of IPC. The said judgment of acquittal has been challenged in this appeal by the complainant.

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Heard learned counsel for the appellant and learned counsel for respondent Nos.1 and 2. Respondent No.3 – accused No.3 died during the pendency of this appeal and case against him came to be dismissed as abated.

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Learned counsel for the appellant – complainant would contend that PW2 is an eye witness to the second marriage of accused No.1 with accused No.2 and she has

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deposed regarding the said marriage. The evidence of PW1 establishes marriage of accused No.1 with PW1 – complainant which took place on 21.12.1994 and they begot two sons out of their marriage. The evidence of PW4 – doctor would indicate that accused No.2 gave birth to a male child and name of the father is entered in the hospital records as Sri.Jayappa. The said Sri.Jayappa is accused No.1 and accused No.2 gave birth to the said child Bharath. He further submits that Ex.P4 is the birth certificate of a male child and the date of birth is 02.04.2005 and name of the mother is Smt.Renukamma

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and name of the father is mentioned as Sri.Jayappa. The said Sri.Jayappa is accused No.1. The said birth of a male child to accused Nos.1 and 2 would itself indicate that accused No.1 has married accused No.2 and they led marital life. The evidence of PW3 – Anganawadi Worker would indicate that male child of accused Nos.1 and 2 attending Anganawadi Centre and Ex.C1 – Register of attendance of Anganawadi Centre would indicate that Bharath is son of Sri.Jayappa which is at Ex.C1(a). He

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further contends that Ex.C2 is the ration distribution detail, wherein name of Bharath is at Sl.No.13 which is at Ex.C2(a), wherein his mother’s name is mentioned as Smt.Renukamma ie., accused No.2. He further submits that the evidence of PW4 – doctor and Register of the District hospital, Chitradurga – Ex.C3 would indicate that accused No.2 – Smt.Renukamma was admitted to the hospital and gave birth to a male child, wherein, Smt.Renukamma is mentioned as wife of Sri.Jayappa. The said Sri.Jayappa is accused No.1. He submits that PW5 is the Priest working in Rangaswamy temple, Ganjigatte and his evidence would establish the marriage of accused No.1 with accused No.2. He is also an eye witness to the said marriage. He further submits that the accused have not denied the second marriage in the cross examination of the complainant’s witness. There is no cross examination of PW3 – Anganawadi Worker. Without considering all these aspects, the learned Magistrate has erred in acquitting accused Nos.1 to 3. On these grounds, he prayed to allow the appeal and convict respondent Nos.1

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and 2 – accused Nos.1 and 2 for the offences under

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Sections 494 and 109 of IPC.

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Learned counsel for respondent Nos.1 and 2 would contend that the identity of Sri.Jayappa whose name is mentioned in Ex.P4 – birth certificate, Ex.C1 – Register of attendance of Anganawadi Centre and Ex.C3 – extract of Register of the District Hospital, Chitradurga is in dispute as name of accused No.1 is Sri.Jayanna and not Sri.Jayappa. He submits that there is a contradiction in the evidence of PWs.2 and 5 with regard to the time of marriage. PW2 is the relative of PW1 and therefore, her evidence is not trustworthy. Even though PW2 is alleged to be present at the second marriage, did not stop the marriage even though she is related to PW1, which itself would indicate that her evidence is not trustworthy. Even PW2 has not informed PW1 about the second marriage immediately and she intimated after three days of the alleged second marriage. PW1 is not an eye witness to the alleged second marriage. PW2 herself is the second

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wife of her husband. There are criminal cases registered against PW1. The matrimonial case filed by accused No.1 – respondent No.1 seeking divorce against PW1 came to be decreed and the allegation of illicit relationship came to be proved. The said matrimonial case came to be filed on 28.02.2003. As the matrimonial case has been filed, to take revenge, the complainant – PW1 has filed a false complaint against the accused persons. There is nothing on record to show that Sri.Jayanna and Sri.Jayappa are one and the same persons. The Purohith who has performed the alleged marriage of accused No1 with accused No.2 has not been examined. The ceremonies of marriage was not proved. PW5 has not identified accused No.2 as the lady who was present at the time of marriage in the temple. PW5 has not stated regarding performing of pooja by brother of PW2 on that day in the temple prior to their marriage. He submits that considering all these aspects, the learned Magistrate has rightly acquitted the accused persons. With this, he prayed to dismiss the appeal.

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7. Having heard the learned counsels, the Court has

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perused the impugned judgment and the Trial Court records.

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Considering the grounds raised and urged, the following point arises for consideration;

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“whether the Trial Court has erred in acquitting respondent Nos.1 to 3 of the offences punishable under Sections 494 and 109 of IPC?”

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9. My answer to the above point is in the negative, for

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the following reasons;

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PW1 is the complainant, PW2 – Smt.Shashikala is an eye witness to the second marriage, PWs.3 and 4 are the officials who have produced Exs.C1 to C3. PW5 – Sri.Rajappa is the Priest who was present at the time of the alleged marriage. There is no dispute with respect to marriage of accused No.1 with the complainant – PW1. Accused No.1 has admitted that the complainant is legally wedded wife and two sons were born out of that marriage.

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The evidence of PWs.1 and 2 coupled with Ex.P1 – printed marriage invitation card, itself would establish the marriage of accused No.1 with the complainant and it was solemnized on 21.12.1994. The said aspect itself would establish that the complainant – PW1 is legally wedded wife of accused No.1 – respondent No.1. It is also not in dispute that at the time of filing the complaint, the marriage between the complainant – PW1 and accused No.1 – respondent No.1 was subsisting and it was not dissolved by decree of divorce. At the time of filing the complaint in M.C.No.6/2003 by accused No.1 against the complainant – PW1 seeking dissolution of marriage filed under the provision of Hindu Marriage Act, 1955 was pending. All these aspects would establish that the complainant is the legally wedded wife of accused No.1 – respondent No.1.

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It is the evidence of PW2 that on 30.05.2004 she

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went to Ganjigatte village to attend the marriage of her brother and at about 8.00 am, she went to Rangaswamy

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temple along with her brother to perform pooja and she noticed accused No.1 tying thaali to accused No.2 and at that time, relatives of accused Nos.1 and 2 were present at the temple. According to PW2, by chance she went to Rangaswamy temple and found accused No.1 tying thaali to accused No.2. She has not spoken regarding any rituals performed at the time of tying the thaali. PW2 is the close relative of PW1 – complainant.

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PW5 has stated in his evidence that he is the Priest of Rangaswamy temple situated at Ganjigatte village and one Sri.Prakash came to his house and took him to temple for the purpose of performing pooja. It is his further evidence that when he was performing pooja, he suddenly found that accused No.1 had made arrangements of marriage along with the other persons. PW5 has not identified accused No.2 as the bride of the marriage alleged to have been solemnized on that day. It is the evidence of PW5 that on that day, the temple was locked and he opened the lock at 9.00 am. However, the

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evidence of PW2 would indicate that temple was opened at 8.00 am and she went there along with her brother to perform pooja. PW2 has stated that accused No.1 tied thaali to accused No.2 at about 9.00 am. PW5 has deposed that marriage of accused No.1 took place at about 11.00 am and at that time, he went out of the temple. Considering these aspects, there are material contradictions with regard to the timings of the alleged marriage. Considering the evidence of PW5, it is clear that he has not performed the alleged marriage of accused No.1 with accused No.2. PWs.2 and 5 have not deposed regarding the rituals performed at the time of marriage. Therefore, the evidence of PWs.2 and 5 are not helpful to the complainant to establish the marriage of accused No.1 with accused No.2 and its solemnization.

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It is the case of the complainant that out of the

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wedlock of accused No.1 with accused No.2, accused No.2 gave birth to a male child. PW4 – Dr.Nagarajanaika has operated accused No.2 at the time of delivery and deposed

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that one Smt.Renukamma, wife of Sri.Jayappa of Sondekola village was admitted to the hospital on 02.04.2005 and she gave birth to a male child and he has produced Exs.C2 and C3 – case sheets. On perusal of Exs.C2 and C3, it is clear that one Smt.Renukamma gave birth to a male child on 02.04.2005 and father of male child is Sri.Jayappa. In Ex.C3, complete address of the accused persons is not mentioned. Accused No.1 – respondent No.1 is Sri.Y.Jayanna, son of Sri.Yellappa. In Ex.C3 – husband’s name of Smt.Renukamma is mentioned as Sri.Jayappa. There is lot of difference in mentioning the name of accused No.1 – respondent No.1 in Exs.C1 and C3.

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PW3 is the Anganawadi Worker and her evidence would indicate that male child of accused Nos.1 and 2 has been admitted to the Anganawadi Centre. PW3 had produced Exs.C1 and C2 and she has not been cross examined by the accused persons. Exs.C1 and C2 are with respect to a male child by name Bharath, S/o

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Sri.Jayappa. Ex.C2 contains name of mother of Bharath as Smt.Renukamma. In Exs.C1 and C2 full names of parents of said Bharath is not mentioned. Name of father of Bharath is shown as Sri.Jayappa. Accused No.1 is Sri.Jayanna. In the complaint – Ex.P6, it is nowhere stated that accused No.1 – Sri.Y.Jayanna is also called by name Sri.Jayappa. Considering all these aspects, there are no grounds for setting aside the well reasoned judgment of acquittal passed by the Trial Court. In the result, the following;

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ORDER

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The appeal is dismissed . The acquittal of respondent Nos.1 and 2 for the offences under Sections 494 and 109 of IPC, by judgment dated 18.09.2013 passed in C.C.No.1289/2005 by the Principal Civil Judge and J.M.F.C, Chitradurga is affirmed .

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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GH List No.: 1 Sl No.: 41

B H Shanthamma v. Y Jayappa

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B H Shanthamma v. Y Jayappa

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