dated

31.07.2010/03.08.2010 passed by the III Additional

District

and

Sessions

Judge,

D.K.,

Mangaluru

in

S.C.No.13/09-convicting the appellant/accused for the

offence p/u/s 498-A & 306 of IPC, etc.

This Criminal Appeal coming on for hearing this

day, the Court delivered the following:

:: 2 ::

JUDGMENT

The

judgment

of

conviction

against

accused for the offences under section 498A and

306 IPC in S.C.No.13/2009 on the file of III Addl.

District and Sessions Judge, Dakshina Kannada,

Mangaluru is assailed in this appeal.

2. The prosecution case is like this:-

The accused was the husband of Laxmi, the

deceased. They had a child by name Manikanta.

Though they hailed from North Karnataka region,

they were working as coolies in a village near

Mangaluru. The accused was addicted to liquor

and stupefying substances. He was harassing his

wife. PW.1, Mallesha @ Mallappa, brother of the

deceased was residing with them. On 13.9.2008,

PW.1 and the accused returned to their house at

12.00 noon after finishing coolie work. The

accused was fully drunk. At that time along with

PW.1 and the accused, one Chandrappa, uncle of

:: 3 ::

the accused was also present. The deceased

prepared lunch and asked her husband to have the

lunch, but he refused. When the deceased was

serving food to others, the accused took objection

for not serving food to him and then stamped on

her face. As a result, the deceased sustained

injury on her lips. At 4.30 p.m., PW.1 came to

know that the deceased had jumped into a well

along with her child. The fire brigade lifted the

dead body from the well. PW.1 made a report to

the police as per Ex.P.1 in regard to this incident.

FIR was registered and the investigation resulted

in accused being charge sheeted for the offence

under section 306 IPC.

3.

Having

assessed

evidence

of

11

witnesses and examining six documents as per

Ex.P.1 to P.6, the trial court held the accused

guilty of the offence under sections 498A and 306

IPC

and

then

sentenced

him

rigorous

:: 4 ::

imprisonment for a period of three years and fine

of Rs.5,000/- with default sentence of one month

for the offence under section 498A IPC, and

rigorous imprisonment for a period of ten years

and fine of Rs.5,000/- with default sentence of one

month for the offence under section 306 IPC.

4. I have heard the argument of Sri. B.C.

Venkatesh,

learned

Amicus

Curiae

for

appellant/accused and Sri. Mahesh Shetty, learned

Government Pleader for the State.

5. It is the argument of Sri. B.C.Venkatesh

that the trial court has committed an error in

convicting and sentencing the accused for the

offence under section 498A IPC without framing

charge in that regard. He drew my attention to

the charge framed by the trial court and submitted

that there is no charge for the offence under

section 498A IPC. His next point of argument is

that PW.1 to PW.5 are related to the deceased and

:: 5 ::

thereby they are highly interested. He submits

that in Ex.P.1, PW.1 stated that the accused

stamped on the face of his sister, but while giving

evidence he stated that the accused assaulted the

deceased with a stick. There is no consistency in

his evidence. If really a stick was used for

assaulting, the investigating officer should have

seized the stick, but it was not seized. PW.2, 3

and 4 are not eye witnesses, they are hearsay

witnesses, in the sense they came to know about

the suicide committed by the deceased from PW.1.

With regard to offence under section 306 IPC also,

PW.1 is not an eye witness. It has come in the

evidence that the deceased slid into the well.

There is no evidence to hold that accused abetted

the deceased to commit suicide. In this view, the

trial court should not have recorded conviction. In

support of his argument he has placed reliance on

the judgment of the co-ordinate bench of this

court in the case of Chandrappa Vs. State [2019

:: 6 ::

(3) AKR 463] and two judgments of the Hon9ble

Supreme Court in the case of Rajesh Vs. State of

Haryana [AIR 2