IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15th DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRL.A.NO.1230/2015 BETWEEN:
SRI. DEVARAJ B.R S/O RAJEGOWDA AGED ABOUT 32 YEARS R/O BHAGESHPURA VILLAGE GANDASI HOBLI ARASIKERE TALUK HASSAN DISTRICT-56.
(BY SRI. S.R. HEMANTH KUMAR, ADVOCATE) AND:
... APPELLANT STATE OF KARNATAKA BY GANDASI POLICE STATION REP. BY ITS STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE-01.
... RESPONDENT (BY SRI K. NAGESHWARAPPA, HCGP) THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT DATED 09.03.2015 PASSED BY THE PRL. S.J., HASSAN IN S.C.NO.199/2010 –CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 306 OF IPC.
THIS APPEAL BEING HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ARAVIND KUMAR J, DELIVERED THE FOLLOWING:
JUDGMENT The present appeal is directed against the judgment and order of sentence passed by the Prl. Sessions Judge, Hassan in S.C.No.199/2010 by convicting the appellant for the offence punishable under Section 306 IPC and sentencing him to undergo rigorous imprisonment for 8 years and to pay fine of ` 5,000/- with default sentence of 3 months.
2. The case of prosecution is that accused had married deceased Smt. Savithri according to Hindu rites and customs, about one year four months back prior to her death at Chennakeshava Temple, Belur and were residing together at Vidyanagar, Hassan in a rented house; accused used to pick up quarrel with the deceased every now and then and as such, they had shifted their house to Gavenahalli and thereafter to Bhageshpura; since date of marriage accused was ill- treating deceased with cruelty both physical and mental and was demanding her to bring dowry from her parental home and was harassing the deceased for money to buy liquor; on 09.09.2010 accused had picked-up a quarrel with the deceased and had insisted her to part with the money she had and being unable to bear the harassment and ill-treatment meted out to her by the accused, she had committed suicide on 10.09.2010 by jumping into a well situated in the land of Sri. Thimmegowda of Bhageshpura village. Hence, alleging that accused is responsible for her death, father of the deceased had lodged a complaint for action being taken against the accused.
3. On registering the said complaint, police took up investigation and on completion of investigation a charge sheet came to be filed against the appellant for the offences punishable under Sections 498A and 306 of IPC. During the course of trial, additional charges came to be framed against the accused for the offences punishable under Section 304-B and 302 IPC. From amongst the witnesses cited in the charge sheet, 16 persons came to be examined as P.W.1 to P.W.16 to drive home the guilt of the accused. Six (6) material objects came to be marked as M.O.1 to M.O.6 and in all, 14 exhibits came to be marked as Exs.P-1 to P-14. The defence of accused was one of total denial of all the allegations leveled against him. Statement of accused has been recorded under Section 313 of Cr.P.C. with regard to the incriminating materials emanating from the prosecution case. It was the specific defence of accused that he did not commit the murder of his wife - Smt.Savithri and he had never harassed her for money nor he had demanded the deceased to bring dowry from her parental home.
4. The learned Sessions Judge after appreciating the evidence on record and in the light of arguments addressed, arrived at a conclusion that accused had remained in the house without doing any work and was harassing the deceased and thereby had instigated the deceased to commit suicide and as such, learned Sessions Judge held that prosecution had proved the offence punishable under Section 306 IPC against accused beyond all reasonable doubt. Though learned Sessions Judge found that there is serious contradiction in the evidence of P.W.3, P.W.6 and P.W.12, which goes to the root of the case and having noticed that death note had been left behind by the deceased which clearly revealed that no person was responsible for her death, yet arrived at a conclusion that her death having occurred on account of instigation by the accused and as such convicted the accused for the offence punishable under Section 306 IPC. The learned Sessions Judge also held that deceased was not subjected to cruelty or harassment by the accused in connection with any demand of dowry and thereby it came to be held that prosecution had failed to prove that accused had committed offences punishable under Sections 498A, 304-B and 302 IPC and as such, acquitted him of said charges. Appellant – accused is before this Court challenging his conviction.
5. I have heard the arguments of Sri S R Hemanth Kumar, learned Advocate appearing for appellant-accused and Sri Nageshwarappa, learned SPP appearing for respondent – State.
6. It is the contention of learned Advocate appearing for the appellant that learned Sessions Judge failed to appreciate the evidence of the complainant namely, P.W.12 who is none other than the father of deceased in proper perspective and nowhere he had stated that his deceased daughter had informed him about any ill treatment caused by her husband. He would also submit that even otherwise, his evidence is hearsay evidence.
6.1) Learned Advocate appearing for the appellant would further contend that evidence of P.W.5 is a improvised version inasmuch as, he has not stated the facts deposed before Court in his statement recorded by the police.
6.2) He would also contend that postmortem report disclosed that body was found in a decomposed state with no external injuries and this would demonstrate that prior to the commission of the suicide, deceased had not been assaulted as alleged by the prosecution. He would also draw the attention of the Court to the evidence of P.W.2 who is the neighbour of the deceased, who had not supported the case of the prosecution and conviction based on the interested witnesses is not sustainable in law. Hence, he seeks for allowing the appeal by setting aside the judgment of the learned Sessions Judge.
7. Per contra, learned HCGP appearing for respondent-State would not only support the judgment of the Sessions Court insofar as convicting the accused for the offence punishable under Section 306 IPC but he would also contend that learned Sessions Judge committed a serious error in acquitting the accused for the offence punishable under Section 498A IPC, particularly when the evidence on record would disclose that on account of accused having subjected the deceased to cruelty by harassing her and thereby had driven her to commit suicide. He would elaborate his submission by contending that charge was also framed by the Sessions Judge against the accused for the offence punishable under Section 498A IPC and as such Sessions Court ought to have appreciated the evidence tendered by the prosecution in this regard to convict the accused for the offence punishable under Section 498A IPC. He would also submit that learned Sessions Judge committed a serious error in arriving at a conclusion that for attracting the provision of Section 498A IPC, the prosecution has to prove that a married lady had been subjected to cruelty by her husband or the relative of the husband with a view to coerce her to meet a demand for dowry which is not the rigor of Section 498A and as such, acquitting the accused for the offence punishable under Section 498A IPC on the ground that evidence of P.W.3 and P.W.12 is hearsay evidence, is erroneous. He would also contend that learned Sessions Judge further erred in ignoring the testimony of P.W.5 who had categorically stated that first wife of accused had left him since he used to torture her and the evidence of appellant’s neighbour - Smt.Vasantamma - P.W.6 disclosed that deceased had committed suicide due to cruelty inflicted on her by the accused. Hence, he contends learned Sessions Judge committed an error in acquitting the accused for the offence punishable under Section 498A IPC. He would also submit that in the light of said evidence available on record, appellant – accused be convicted for the offence punishable under Section 498A IPC and also seeks for sustaining the conviction imposed on the appellant – accused for the offence punishable under Section 306 IPC.
8. Having heard the learned Advocates appearing for parties and on perusal of the records secured from the Sessions Court, this Court is of considered view that following points would arise for consideration:
(i) Whether learned Sessions Judge was correct and right in acquitting the accused for the offence punishable under Section 498A IPC?
(ii) Whether judgment and order of conviction passed against the accused and convicting him for the offence punishable under Section 306 IPC is to be sustained or set aside?
(iii) What order?
BRIEF BACKGROUND:
9. The marriage between the accused and the deceased having taken place about one year four months prior to her death is not in dispute. During the course of trial, learned Sessions Judge also framed the charge against the accused for the offence punishable under Section 304-B and 302 IPC on the premise that marriage of the deceased was performed with the accused one year four months prior to the incident of death on 10.09.2010 which was within seven years of her marriage. As already noticed herein above, the accused has been acquitted for the offence punishable under Section 498-A, 304-B and 302 IPC and prosecution has contended that acquittal of the appellant – accused for the offence punishable under Section 498A IPC is erroneous, particularly in the background of the learned Sessions Judge having accepted the evidence tendered by the prosecution to drive home the guilt of the accused, insofar as offence punishable under Section 306 IPC and as such, the prosecution has prayed for convicting the accused for the offence punishable under Section 498A IPC also.
RE: POINT No. (1):
10. Section 386(b) Cr.P.C. empowers the appellate Court to sentence the accused by reversing the finding recorded by the trial Court in an appeal from a conviction and it is also empowered to alter the nature or the extent of the sentence with or without altering the finding, but it would not be empowered to enhance the sentence. The Court of appeal is empowered under the Section 386(b)(ii) Cr.P.C. to alter a finding of acquittal into one of conviction. However, the finding of the trial Court cannot be altered so as to convict the accused of a graver offence than that with which he was charged, unless an opportunity be given to him of defending himself against a charge of such offence. Likewise, it would not be appropriate to alter the finding so as to convict the accused of an offence of entirely different character. Keeping this in mind, the material laid by the prosecution before the trial Court requires to be re- appreciated together while examining the finding of the learned Sessions Judge recorded for acquitting the accused for the offence punishable under Section 498A IPC.
11. At paragraph 32 of the judgment, the learned Sessions Judge has examined the plea of the prosecution with regard to charge made against the accused for the offence punishable under Section 498A IPC. The learned Sessions Judge while examining as to whether the prosecution has proved that accused had committed an offence punishable under Section 498A IPC, has considered the testimony of P.W.12 and P.W.3 and arrived at a conclusion that there is serious contradiction and it goes to the root of the matter. Hence, it has acquitted the accused.
12. The learned Public Prosecutor is justified in contending that learned Sessions Judge committed an error in arriving at a conclusion that “there should be a demand for dowry” by the accused or his relative so as to drive a married lady to commit suicide for Section 498A IPC being attracted. In the light of said contention, this Court is of the considered view that it would be apt and necessary to understand the meaning attached to Section 498A IPC. Hence, same is extracted herein below for immediate reference. It reads:
“498A. Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever, being the husband or relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.—For the purpose of this section, “cruelty” means – (a) any willful 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 (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.”
A bare reading of the above provision would disclose that in either of the eventualities indicated in clause (a) and clause (b) were to occur either singly or jointly, said provision would get attracted. In other words, for convicting the husband or relative of husband of a woman for an offence punishable under Section 498A IPC, the prosecution would be required to establish the relationship between the parties namely, being that of husband and wife or being related and for clause (a) being attracted, prosecution will have to establish that on account of willful conduct on the part of the husband which was of such nature, it drove the wife to commit suicide or had caused grave injury or danger to her life, limb or health (whether mental or physical) of the woman. For clause (b) being attracted, prosecution will have to go further step forward and establish that harassment of the married woman (wife) was with a view to coerce her or any person related to her to meet the unlawful demand for any property or valuable security and on account of her failure or any person related to her to meet such demand and as such it amounts to cruelty. Thus, in the absence of clause (b) being attracted, it cannot be gainsaid that automatically clause (a) would also not be attracted. These two clauses should be read disjunctively and not conjunctively particularly they being penal provisions, they are required to be interpreted in strict –o-sense. There cannot be any addition or subtraction of the words to these two clauses.
13. Keeping the above analysis in mind, the evidence tendered by the prosecution to drive home the guilt of the accused for the offence punishable under Section 498A IPC requires to be re-examined or re- appreciated.
14. The learned Sessions Judge has only relied upon the deposition of P.W.3 and P.W.12 namely, brother and father of the deceased to acquit the accused for offence punishable under Section 498A IPC. The testimony of P.W.5 and P.W.6 has been conveniently left out or ignored by the learned Sessions Judge.
15. P.W.5 - Sri.Lokesh who is the brother of the deceased has stated in his deposition that he hails from the same village of which the accused belongs to and that he is conversant with the relationship between accused and the deceased. He has deposed that accused had married a girl from Tirupatihalli and she had begotten a female child. He has deposed that being unable to bear the torture and cruelty meted out to her, she had left him. He further states that subsequently, he had married another girl from Basavaghatta village and she had also left the matrimonial home, unable to bear the torture and cruelty. He further states that accused had married the deceased at Belur temple without informing any one and was initially residing at Hassan and later shifted to Gavenahalli and subsequently to Bageshpura where he is also residing. He has also stated that deceased was doing coolie work and accused was without any avocation. He further states that accused was a drunkard and was always torturing the deceased to pay money to meet his requirement for buying liquor. He has stated that female child born out of the wedlock between accused and deceased was unwell and as such deceased had requested accused for money to get treatment to the child and being enraged by this, he had thrown the child to the wall resulting in its death and he states that this fact had been informed to him by the deceased, three days prior to her death.
16. P.W.5 has also stated that on 10.09.2010 at about 12.30 p.m. accused had informed him over phone about deceased having not returned from the post office and as such, he consoled the accused that she would return and requested him to wait for some more time. On account of persistent request by the accused to visit his house, he had proceeded to the house of the accused and was informed by the accused that deceased had left the house without even taking ` 100 which was in the almirah and as such, he expressed doubts about her whereabouts. He also states that accused had informed him that deceased had fallen from the cot by screaming that accused should not assault her. He states on account of this statement made by the accused, he got a doubt and made enquiries with the accused and nothing worthwhile was told by him. He states that in spite of informing the accused to lodge a complaint, he did not do so and as such, he along with other villagers had informed the police sub-inspector over phone and also expressed suspicion about the conduct of the accused. He states that next day, dead body of Smt.Savitri was found in the well situated in the land of Sri Thimmegowda.
17. Cross examination of this witness namely, P.W.5 does not suggest anything worthwhile having been elicited to discredit his evidence. Undisputedly, he hails from the same village of the accused. There was no enmity between the accused and P.W.5. there is not even a suggestion in his cross examination by the accused that no cruelty or torture was meted out to the deceased by the accused. In that view of the matter, the learned Sessions Judge was not justified in ignoring this material evidence available on record.
18. That apart, evidence of P.W.6 – Smt.Vasantamma also seems to have been ignored or not considered by the learned Sessions Judge. She has specifically stated that she knew the accused as was her neighbour. She has deposed that first wife of accused was from Tirupathihalli and had left her matrimonial home due to the harassment of accused. She further states that accused married another girl from Basavaghatta, who also left the matrimonial home due to the harassment of accused. She further states that deceased came to the village with the accused stating that he had got married to her at Belur temple and started residing in a house by the side of her house. She has also deposed that accused was always in the house without doing any work and it was deceased Smt.Savitri who was doing coolie work. She has further deposed that they were always quarelling with each other and accused under intoxication used to harass her physically and mentally. She further states that within one year deceased gave birth to a female child and it had expired. She also states that parents of the deceased were visiting often to supply groceries to deceased. P.W.6 has withstood the cross examination and she has denied the suggestions made to her that she had falsely implicated the accused. There is not even a suggestion in her cross examination about there being any enmity between her and the accused. In fact, they both hail from the same village and were neighbours. She has specifically stated that deceased was unable to withstand the harassment inflicted by the accused on her and as such, she committed suicide.
Thus, the harassment meted out by the accused to the deceased had clearly stand established and in fact evidence of P.W.6 has been accepted by the learned Sessions Judge while convicting the accused for the offence punishable under Section 306 IPC. Hence, this Court finds there was no reason for the learned Sessions Judge to have ignored this evidence while examining the plea of the prosecution for convicting the accused for the offence punishable under Section 498A IPC.
19. In the instant case, learned Sessions Judge had framed charge against the accused for the offence punishable under Section 498A IPC apart from charging him for the offences punishable under Sections 304B, 302 and 306 IPC and had ignored the material evidence available on record insofar as charge made for the offence punishable under Section 498A IPC. In other words, the learned Sessions Judge has not considered the evidence tendered by the prosecution in support of the said charge as discussed herein above and thereby acquitted the appellant/accused for offence punishable under Section 498A IPC and thereby has committed illegality. Hence, this Court is of the considered view that point No.(1) deserves to be answered in the negative and appellant/accused deserves to be convicted for the offence punishable under Section 498A IPC also.
RE: POINT NO.(2) 20. Learned Sessions Judge has convicted the appellant for the offence punishable under Section 306 IPC. Judgment of learned Sessions Judge would disclose that prosecution has relied upon the circumstantial evidence, since there were no eye witnesses to the incident. Thus, the circumstances under which the guilt of the accused is to be drawn has to be fully established by the prosecution in the first instance and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. To put it differently, there should be chain of evidence to complete the circumstances and not leave any reasonable ground for arriving at a conclusion consistent with the innocence of the accused and it must also be established that within all human probability the act must have been done by the accused.
21. It is trite law that to prove the charge under Section 306 IPC against accused, prosecution has to prove two facts namely, (1) suicidal death, and (2) abetment thereof. To attract the ingredients of abetment, intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary. Offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has been abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 of the Code. The Hon’ble Apex Court in the case of M.MOHAN vs STATE REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE reported in AIR 2011 SC 1238 has held that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. It has been further held that it also requires an active act or direct act which led deceased to commit suicide, seeing no option and this act must have been intended to push the deceased into such a position that he or she committed suicide. The expression ‘instigate’ occurring in Section 107 IPC means that accused actively suggests or stimulates or push or force the deceased to commit suicide or provokes the deceased to commit the suicide by creating such atmosphere. In other words, there should be active stimulation on the part of the accused in instigating the deceased to commit the suicide.
22. As already noticed herein above, marriage of accused with deceased Smt.Savitri had taken place about one year four months prior to her death. It was alleged by the prosecution that accused had ill treated her by meting out physical and mental cruelty and insisting her to pay money to him either by herself or obtaining it from her parental home and accused had also persistently tortured the deceased to pay him money to buy liquor. It was further alleged by the prosecution that on 09.09.2010 accused had picked up a quarrel with the deceased and had demanded money from her to buy liquor and being unable to bear the ill treatment and harassment caused by the accused, she had committed suicide on 10.09.2010 by jumping into the well situated in the land of Sri.Thimmegowda of Bageshpura village. On these lines, charge sheet came to be filed against accused for the offence punishable under Section 306 IPC amongst other charges. Accordingly, charge was also framed against the accused.
23. Keeping the aforestated principles of law in mind, when the facts on hand are perused, it would disclose that father of deceased - Sri Dasegowda – P.W.12 has stated in his complaint – Ex.P-5 which is a missing complaint to the effect that he was informed by the accused about his daughter missing and he had searched in his relatives house but could not trace her. Subsequently, in his further statement – Ex.P-6 he has stated that accused was torturing his daughter quite often and was sending to his house to get more money from him and he has alleged that accused had instigated her to commit suicide. He has been examined as P.W.12. A perusal of his deposition would disclose that he has deposed that accused had married his daughter one year four months prior to her death and they were residing at Vidyanagar, Hassan in a rented house and on account of owner of the house demanding them to vacate since the accused was picking up quarrel with deceased, they had vacated the said house and rented a house at Gavenahalli which was also vacated for the same reason and thereafter they shifted to a rented house at Bageshpura. He has further deposed that accused had killed the child and was also harassing his daughter to bring more money from her parents house. He also states that the accused had informed him over phone on 10.09.2010 about deceased Smt.Savitri missing from the house and lodging the complaint to the said effect before Gandasi police station. He also admits that without his knowledge the deceased had married the accused and he further admits that he did not meet his daughter before the incident. His statement before the police is based on what he was informed by the villagers. Thus, it is a hearsay evidence.
24. The brother of deceased has been examined as P.W.3. He has deposed that accused had assaulted the deceased and killed her and then thrown her in to the well. He has also further deposed that the deceased was having gold ornaments valued at Rs.1 lakh and the accused had taken away those gold ornaments including cash. He is a interested witness.
25. The prosecution has also relied upon evidence of P.Ws.4 to 6 namely, Sriyuths Nagaraju, Lokesha and Vasanthamma. The deposition of P.W.4 would disclose that he is residing at a distance of about 200’ to 250’ away from the house of the accused. In his cross examination dated 07.10.2014 he has admitted that he cannot hear any conversation or any sound emerging from the house of accused. Thus, his alleged knowledge of galata having taken place at the house of the accused and he having heard and seen the said galata taking place is difficult to be believed.
26. The evidence of P.W.5 would disclose that the parents of deceased Smt.Savitri had opposed her marriage with accused since they belong to different caste. He also states that the parents of Smt.Savitri had not allowed her to visit paternal home. He is an independent witness. He has deposed that first and second wife of accused had left their matrimonial home due to the untolerable harassment of the accused to them. He has also stated that there was Panchayat held in the village relating to the ill treatment and harassment caused by the accused to the deceased. He hails from the same village where accused is residing. He does not have any enmity with the accused. So also is the evidence of P.W.6 who is the neighbour of the accused.
27. Learned Sessions Judge has taken note of the chain of circumstances from the date of marriage till the death of Smt.Savithri and noticed that on 09.09.2010 accused had picked up a quarrel with the deceased and she had committed suicide on 10.09.2010 by jumping into the well. The deposition of independent witnesses P.W.5 and P.W.6 clearly point out the ill treatment or harassment caused by the accused to the deceased, which drove her to commit suicide and prosecution has been able to prove the guilt of the accused for the charge of Section 306 IPC. There is no error committed by learned Sessions Judge in convicting accused for the offence punishable under Section 306 IPC. Hence, this Court is of the considered view that point No.(2) deserves to be answered in the affirmative by sustaining the order of conviction.
RE: POINT No.(3):
28. Taking into consideration that accused is young and was aged about 32 years as on the date of crime committed by him and also the fact that he hails from a economically weaker section of the society and has to take care of his aged parents and not ignoring the fact that he had committed the brutal act against his wife by driving her to commit suicide, unable to tolerate the harassment of accused, the punishment of eight (8) years rigorous imprisonment awarded by the learned Sessions Judge requires to be reduced to six (6) years and same would meet the ends of justice.
29. For the reasons aforestated, I proceed to pass the following:
JUDGMENT (i) Criminal Appeal is hereby allowed in part.
(ii) Judgment and order of conviction passed by the Principal Sessions Judge, Hassan in S.C.No.199/2010 on 09.03.2010 acquitting the accused for the offence punishable under Section 498A IPC is hereby set aside and he is convicted for the said offence and order of conviction under Section 306 IPC is hereby sustained.
(iii) Accused is sentenced to undergo simple imprisonment of three (3) years and to pay fine of ` 5,000/- for the offence punishable under Section 498A IPC and in default to pay fine, accused shall undergo simple imprisonment for four months.
(iv) In modification/substitution to the sentence of eight (8) years rigorous imprisonment imposed for the offence punishable under Section 306 IPC, accused is sentenced to undergo rigorous imprisonment for six (6) years and ordered to pay fine of ` 5,000/- and in default to pay fine amount, he shall undergo further imprisonment of three (3) months.
(v) The sentences imposed against appellant – accused shall run concurrently and the period of detention undergone by the accused shall be given set off as contemplated under Section 428 Cr.P.C.
SD/- JUDGE *sp