IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No.2069/2017 BETWEEN:
SRI MADEYANDA C. RAJESH, AGED 42 YEARS, SON OF SRI MADEYANDA C. CHINNAPPA, AGRICULTURIST BY PROFESSION, RESIDENT OF BALLAMAVATI VILLAGE, NAPOKLU-571 201.
MADIKERI TALUK KODAGU DISTRICT. … APPELLANT (BY SRI N. SRINIVAS, ADVOCATE) AND:
THE STATE OF KARNATAKA, REPRESENTED BY THE SUB-INSPECTOR OF POLICE, NAPOKLU POLICE STATION-571 201.
KODAGU DISTRICT.
REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560 001. ... RESPONDENT (BY SRI K. NAGESHWARAPPA, HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 7.12.2017 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI IN S.C.NO.77/2015 – CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 498(A) AND 306 OF INDIAN PENAL CODE.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.11.2019, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment of conviction and sentence dated 7.12.2017 passed in S.C.No.77/2015, on the file of the I Additional District and Sessions Judge, Kodagu at Madikeri for the offences punishable under Sections 498A and 306 of IPC.
Brief facts of the case:
2. It is the case of the prosecution that the accused is an ex-army serviceman who took voluntary retirement and presently working as agriculturist. The accused married deceased Shruthi on 14.11.2008. At the time of marriage, the accused was in service. The deceased was working at Bangalore and after voluntary retirement of her husband, both went and settled in their native place. Out of the wedlock, they are having two children. Till the accused was in service, they were having cordial relationship. Thereafter, the accused was addicted to alcohol and used to ill-treat the deceased. The deceased was a graduate and had written the D.Ed. examination and had worked as a teacher for some time. The accused subjected the deceased for both mental and physical harassment. As a result, the deceased committed suicide on 27.12.2014 at about 5.45 p.m. by hanging herself in the bedroom using chudidar veil. Hence, a case came to be registered against the accused for the offences punishable under Sections 498A and 306 of IPC. The police investigated the case and filed the charge-sheet against the accused for the said offences.
3. The prosecution in order to prove the case against the accused, examined P.Ws.1 to 14 and got marked Exs.P.1 to 12 and M.Os.1 to 4. The accused was also subjected to 313 statement. The accused also examined two witnesses as D.Ws.1 and 2 and relied upon Exs.D.1 to 10. The Court below considering the material on record, convicted the accused for the offences punishable under Sections 498A and 306 of IPC and sentenced to undergo rigorous imprisonment for three years with fine of Rs.5,000/- under Section 498A of IPC and in default of payment of fine to undergo simple imprisonment for two months and; six years rigorous imprisonment with fine of Rs.7,500/-
under Section 306 of IPC and in default of payment of fine to undergo simple imprisonment for three months. The accused being aggrieved by the judgment of conviction and sentence has filed the present appeal before this Court.
4. In the grounds of appeal, the accused has contended that the Trial Court has committed an error in convicting the accused based on the evidence of P.W.14, who was aged about five years at the time of incident. She is staying with her maternal grandparents and she was tutored. The Court below failed to consider the evidence of P.W.14 in right perspective. The Court below ought to have taken more care while considering the evidence of minor daughter of the deceased and the accused.
5. The Court below failed to take note of the fact that the complaint came to be filed even before P.W.1 reached the hospital to see his elder sister. The conduct of P.W.1 is very clear that the complaint is filed with vengeance.
6. The Court below much discussed on the injury found on both the thighs of the deceased. According to the witnesses, the injury is caused by assault of club by the accused. The doctor who conducted the post mortem on the body of the deceased gave the opinion that the said injuries can be caused when the dead body was brought down after she was found hanging. Hence, it is clear that the injuries found on the thighs of the deceased are because the body was brought down. The doctor did not specify that the injuries are due to the assault by the club.
7. The Court below also failed to take note of the evidence of prosecution witnesses, who have admitted that relationship between the two families are very cordial and the couple used to attend all the functions together with their children. The witnesses, who have been examined before the Court are all relative witnesses. The Court below also committed an error in coming to the conclusion that Section 113A of the Indian Evidence Act, 1872 has not been rebutted.
8. The Trial Court also erroneously came to the conclusion that the accused was consuming alcohol only based on the statement of the witnesses and the said conclusion is also erroneous. There is no cogent evidence that the accused subjected the deceased for both mental and physical cruelty and the Court below has committed an error in convicting the accused in the absence of any material before the Court.
9. The learned counsel for the appellant/accused in his arguments vehemently contended that except the relatives, no independent witnesses have been examined before the Court below. P.Ws.1 to 4, in their evidence have not deposed that the accused subjected the deceased for any harassment and that the panchayat was held. The evidence of P.Ws.1 to 4 is clear that both husband and wife were cordial. The counsel also contended that in the cross-examination of P.W.3, he categorically admitted that both the accused and the deceased were attending the functions, if any, from both the sides. P.W.2 also admitted that laptop was purchased by availing the loan to the deceased. It is also elicited that the deceased had not left the matrimonial house at any time for harassment.
10. The Court below erroneously comes to the conclusion based on the evidence of P.W.4, who is a tutored witness. On perusal of evidence of P.W.14, minor daughter of the deceased, it is evident that it is full of exaggeration. P.W.14 deposed that her father has slit the neck of the mother. But there is no material before the Court. The other witness is P.W.7, who is also the relative. The main reason for committing the suicide was she had not fared well in the D.Ed. examination which she had attended on the very same day and also she was having a weak mind. Hence, she took the extreme step and not on account of any harassment. Hence, the impugned judgment of conviction is liable to be set aside.
11. Per contra, the learned High Court Government Pleader appearing for the State in his arguments would contend that the witnesses who have been examined before the Court, though they are the relative witnesses, their evidence cannot be discarded only on the ground that they are relative witnesses. The Court has to take note of the evidence available on record in toto and should not be carried away only on the ground that the witnesses are relative witnesses. It is also contended that the Court below considered Section 106 of the Indian Evidence Act since the death had occurred in the matrimonial house. There is no explanation on the part of the accused with regard to injuries. It is also contended that the evidence of prosecution witnesses and also the doctor is that there were injuries on both the thighs of the deceased and the same is also not explained by the accused how those injuries were sustained by the deceased. The evidence is very clear that the accused subjected her for assault with club. As a result, those two injuries were sustained and thereafter she sent a message to her brother, which is evident in terms of Ex.P.8 mahazar and in the said message also the deceased has categorically stated that she was assaulted with club. The evidence of P.W.14, minor daughter, is also clear that the accused assaulted the deceased with club. When such being the case, the Court below rightly appreciated both oral and documentary evidence.
12. The counsel would also contend that Section 113A of the Indian Evidence Act presumes with regard to cruelty and death. Hence, the Court below considered the presumption and the said presumption is also not rebutted by the accused. Hence, the Trial Court has not committed any error in appreciating both oral and documentary evidence. Hence, there are no grounds to interfere with the judgment of conviction of the Trial Court.
13. The learned counsel for the appellant in support of his contention relied upon the judgment in the case of ATMARAM v.
STATE OF MAHARASHTRA reported in (2013) 12 SCC 286.
By referring this judgment, the counsel would contend that the Apex Court in this judgment discussed in detail with regard to Sections 306 and 498A of IPC, explanation (a) or (b) insofar as to abetment of suicide and also with regard to invocation of Section 113A of the Evidence Act and held that there must first be evidence to establish that such husband or the relative of her husband committed cruelty of the nature described in clauses (a) or (b) of the explanation to Section 498A of IPC.
14. In the case on hand, there is no material before the Court that the accused had subjected the deceased for harassment and the complainant had no personal knowledge about the cause of death and the witnesses who have been examined before the Court also have not made any enquiry. In the absence of any material about the same, invoking of Sections 306 and 498A of IPC does not arise and Section 113A of the Indian Evidence Act cannot be invoked. In the case on hand also there are no material to draw the presumption under Section 113A of the Indian Evidence Act and there is no cogent evidence to convict the accused for the offences punishable under Sections 306 and 498A of IPC. Hence, this judgment is aptly applicable to the case on hand.
15. The counsel relied upon the judgment in the case of SANJU ALIAS SANJAY SINGH SENGAR v. STATE OF M.P.
reported in (2002) 5 SCC 371. Referring this judgment, the counsel would contend that in this judgment the Apex Court has held that presence of mens rea is the necessary concomitant for instigation and words uttered in a quarrel or on the spur of moment, such as “to go and die”, cannot be taken to be uttered with mens rea. There must be material before the Court that suicide was proximate to the quarrel and also to examine whether suicide was on account of direct result of quarrel. In the case on hand also there is no evidence before the Court that there was a proximity to the quarrel and the witnesses who have been examined before the Court deposed that they were cordial. When such being the case, the question of invoking Section 306 of IPC does not arise.
16. Having heard the arguments of the learned counsel for the appellant and the learned High Court Government Pleader appearing for the State, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in convicting the accused for the offences punishable under Sections 306 and 498A of IPC and it requires interference of this Court?
(ii) What order?
Point (i):
17. The case of the prosecution in nutshell is that the accused assaulted the deceased with the club and subjected her for both mental and physical harassment. Hence, the deceased took the extreme step of committing suicide in the matrimonial home on 27.12.2014 at about 5.45 p.m. The prosecution in order to prove the charges leveled against the accused examined P.Ws.1 to 14 and got marked the documents at Exs.P.1 to 12 and M.Os.1 to 4. Now, this Court keeping in view the contentions urged by the learned counsel for the appellant and the learned High Court Government Pleader appearing for the State has to re-appreciate both oral and documentary evidence available on record as to whether the Court below has committed an error in convicting the accused.
18. The prosecution examined the complainant as P.W.1, who is the brother of the deceased. P.W.1 in his evidence states that the deceased’s marriage was solemnized with the accused on 14.11.2008. The accused was working in army and after about 2½ years of the marriage, the accused came back and started to live at his native place along with his sister. It is his evidence that on the date of death of his sister, she sent a message on his mobile in Kodava language that the accused had assaulted her with club and also abused her that she is not fit to live with him and to go and die. He went to the house at about 7.00 p.m. and informed his parents about the same. By that time, his sister – P.W.2 called him and informed that the deceased had expired and the same was communicated to her by the accused. Immediately along with his parents he went to Napoklu police station and gave the complaint and they were informed that the body was shifted to mortuary of Napoklu Government Hospital. P.W.14 – minor daughter of the deceased came running and informed that the deceased was beaten to death by the accused with club. He identifies his signature on the complaint. It is also his evidence that on 4.1.2015 again he went to the police station and produced Exs.P.3 and 4 – invitation card and the marriage photographs, which were seized under mahazar Ex.P.2. It is also his evidence that he had noticed injuries on the neck and black coloured marks on both the thighs on the dead body of the deceased. He was subjected to cross- examination.
19. In the cross-examination, he admits that the deceased had not gone and stayed with the accused when the accused was in army. The deceased was working in Bengaluru for some time after her marriage and thereafter went and stayed in the house of the accused at Napoklu. He came to know that the accused had come back from army for his personal medical reasons. It is also elicited that the deceased joined as a teacher initially at Government school and thereafter in a private school at Napoklu and had also worked at Sacred Heart School and thereafter at Ankur School. The deceased had completed her graduation and wanted to pursue her studies and she took D.Ed. examination. It is suggested that the deceased was highly depressed since she did not perform well in Kannada supplementary examination of D.Ed. Course on 27.12.2014 and the same was denied. He admits that he has not downloaded or saved the message since his phone was not a smart phone. The text of the message sent by the deceased is not mentioned in Ex.P.1. He also admits that in Ex.P.1 he has not stated that the father of the accused had also assaulted the deceased. He admits that they used to attend functions and other festivals. He did not enquire P.W.14 as to when, where and how the accused assaulted the deceased. He admits that the accused had filed a case seeking for custody of his children. He admits that he had seen the injuries on the deceased in the mortuary when the Tahsildar was conducting inquest. He had informed his parents and sister about the message sent by the deceased.
20. P.W.2 is the sister of the deceased. P.W.2 in her evidence she deposed that the accused and the deceased were having cordial relationship for about two years till the accused came back from army. Thereafter, the accused started to harass the deceased after consuming alcohol and her sister was informing the same. It is also her evidence that on 26.12.2014, the deceased had called her over phone and informed that she could not bear the torture given by the accused and was provoking her to die. The deceased had called her over phone on 27.12.2014 at 5.00 p.m., but she could not receive her phone call due to her pre-occupation since she was pregnant. However, when she returned the call, the accused received the phone call. On enquiry, he informed about the death of her sister and disconnected the call. She came and saw the dead body in the mortuary and she came to know that she was subjected to assault and noticed the injuries on the neck and both thighs of the deceased and also came to know that the accused abused her to go and die and she is not fit to lead the life. She was subjected to cross-examination.
21. In the cross-examination, she admits that the Tahsildar had not enquired her and she has not given any statement relating to phone call made on 26.12.2014 and the accused provoking the deceased to commit the suicide. The deceased did not inform about any particular reason for which the accused was harassing her. But she stated that the accused used to consume alcohol and harass her. The deceased had never come and stayed in her parents’ house because of harassment given by the accused. She admits that the deceased was having D.Ed. examination on the next day and her husband would be taking her to the said examination. The accused and the deceased used to participate in all family functions. The accused had transferred Rs.25,000/- to her bank account on 27.1.2014 towards the purchase of laptop. It was suggested that the accused did not like her further education and even though he did not come in her way and the same was denied.
22. P.W.3 is the father of the deceased. In his evidence he reiterates the evidence of P.Ws.1 and 2. He states that the deceased was frequently calling his other daughter and informing about the harassment given by the accused. He was subjected to cross-examination. In his evidence he admits that there was no specific reason for the accused to have assaulted the deceased. Further, he admits that the accused and his family members were visiting his house and they were also visiting the house of the accused and their relationship with each other was cordial. He admits that his daughter had possessed better educational qualification than the accused. It was suggested that since they knew that the accused was working in army and had lands and hence forced the deceased to marry him and the same was denied. He says that the deceased was always sending SMS to P.W.1. He admits that his daughter never came and stayed in his house complaining of any mental and physical harassment given by the accused. It is suggested that P.W.1 has tutored him to give evidence and the same was denied.
23. P.W.4 is the mother of the deceased and she also reiterated the evidence of P.Ws.1 to 3. She also reiterates that she found injuries on neck and both the thighs of the deceased. She was subjected to cross-examination. It is elicited that the deceased had not gone and stayed with the accused at the place of his posting in army since the accused did not take her. She also admits that the accused and his family members used to visit her house and they also used to visit the house of the accused. The deceased had never come to her house because of the harassment given by the accused. It is also her evidence that the deceased had never informed her that she could not tolerate the harassment given by the accused and would commit suicide. The accused never prevented her daughter from working as a teacher or pursuing her studies. It is suggested that since the deceased was depressed after coming back from the examination, she herself committed suicide and the accused is not responsible for the death and the same was denied.
24. P.W.5 is the inquest witness. In her evidence, she states that Tahsildar came and conducted the inquest mahazar. It is her evidence that she noticed ligature mark on the neck and also injuries on her thighs. She identifies her signature in the inquest mahazar as Ex.P6. It is also her evidence that she came to know that deceased had committed suicide because of her frequent quarrel with the accused.
In the cross-examination, she admits that she does not have any personal knowledge about the relationship between the deceased and the accused and further admits that both the accused and the deceased used to come and participate in all family functions along with their children.
25. P.W.6 is an independent hearsay witness. In her evidence, he states that he came to know about the death of the deceased through his parents and they informed that the deceased committed suicide because of mental harassment given by the accused, since he used to consume alcohol and assault her.
In the cross-examination, he admits that, he does not know about the relationship between the accused and deceased since, he was staying at Bengaluru.
26. P.W.7 in his evidence he states that the daughter of the deceased came running and informed P.W.4 that the accused had assaulted her mother with club and committed her murder. He also states that there were frequent quarrel between the deceased and accused and accused himself has informed him about such quarrel on a couple of occasions.
In the cross-examination, it is elicited that relationship between their family and the family of the accused was cordial till the death of the deceased. It is suggested that daughter of the deceased Chethana did not come and inform anything to them in the hospital and the same was denied.
27. P.Ws.8 and 9 are the mahazar witnesses to spot mahazar, Ex.P8 and they do not support the case of the prosecution.
28. P.W.10 is the Doctor, who conducted postmortem examination. In his evidence, he states that postmortem was conducted between 2.45 p.m. to 4.00 p.m. On examination, he found ligature mark on the neck and on dissection found antemortem ligature mark. It is also his evidence that he found haematoma measuring about 2 x 5 cms. over left thigh posterior-lateral part and measuring 4 x 7 cms. over right thigh. Posterior part is present. He opined that the death of the deceased was due to asphyxia as a result of hanging and gave the postmortem report in terms of Ex.P9. It is also his evidence that, haematoma on the thigh could be caused with an assault by means of club. The said haematoma could have been caused between 12 to 24 hours, prior to postmortem examination.
He was subjected to cross-examination. In the cross-examination, it is elicited that he has not mentioned in Ex.P9 that haematoma was either postmortem or antemortem in nature. He further admits that he cannot state if the said haematoma is antemortem in nature or not by looking at Ex.P9 only. Whenever any injury is caused to a person, till he dies, the same would be considered as antemortem in nature. This witness is re-examined by learned Public Prosecutor. He states that there would be blood clot (haematoma) only when such person is assaulted before his death and haematoma cannot be caused after the death of a person. The witness is further cross- examined by the learned counsel for the accused and it is elicited that it is possible that such haematoma could be caused when the dead body of the deceased was brought down, after she was found hanging.
29. P.W.11 is the Tahsildar, who conducted inquest in terms of Ex.P6. He states that he conducted inquest in the presence of P.W.5, C.Ws.8 and 10 and identifies his signature as Ex.P6(b). He states that during inquest, he noticed ligature marks on the neck and haematoma or contusions were present on the left and right thighs.
He was subjected to cross-examination. In the cross- examination, a suggestion was made that P.Ws.2 to 4, 6 and 7 have not given any statement before him and he has created the same at the instance of the police and the same was denied. It is further suggested that he did not notice any injuries and the same was denied.
30. P.W.12 is the Assistant Sub-Inspector of Police, who arrested the accused at Napoklu Government Hospital and he states that he gave the report in terms of Ex.P10. The evidence of P.W.10 is not challenged.
31. P.W.13 is the Police Sub-Inspector, who received the complaint in terms of Ex.P1 and registered FIR in terms of Ex.P11. It is also his evidence that, thereafter, he went to the hospital and deputed P.W.12 to trace the accused. P.W.12 arrested the accused and produced before him in terms of the report at Ex.P10. It is also his evidence that, after the post mortem, P.W.11 produced the belongings of the deceased i.e., a pair of earrings and silver toe rings of the deceased. The dead body was subjected to inquest and also conducted spot mahazar in terms of Ex.P8 and seized the veil which was used for committing suicide and also seized the mobile phone of the deceased and noted the contents of the message available in the mobile phone which is marked as Ex.P8(d). It also his evidence that he has recorded the further statement of P.Ws.1 to 4 and 7 and C.Ws.5 and 11. That on 04.01.2015, P.W.1 came to the police station and produced marriage photographs and he seized the same by conducting the mahazar in terms of Ex.P2. The marriage invitation card is marked as Ex.P3 and photographs are marked as Ex.P4. It is also his evidence that he received the post mortem report in terms of Ex.P9 and inquest mahazar in terms of Ex.6 and thereafter, he handed over further investigation to C.W.22 and C.W.22 after investigation, filed the charge sheet. It is also his evidence that after filing of the charge sheet, he received the call details report from Bharti Airtel Limited relating to the mobile phone of the deceased in terms of Ex.P.12 He was subjected to cross-examination. In the cross- examination, he admits that while conducting spot mahazar, the parents of the accused were present and he has not enquired and collected any details to show that the mobile phone and the Sim card from which Ex.P8(d) SMS was sent, belonged or stood in the name of the deceased. He has also not collected any document to show that mobile phone and the Sim Card from which Ex.P8(d) SMS was received, belonged or stood in the name of P.W.1. He also admits that he did not try to collect the said mobile phone from P.W.1 immediately after he had lodged Ex.P1, since P.W.1 informed him that the said message was deleted from his mobile phone. It is suggested that Ex.P8(d) is created for the purpose of the case and the same was denied.
He admits that service provider has not given information about the name of the person, in whose name the mobile Sim card bearing No.9902594310 stands.
32. P.W.14 is the daughter of the deceased and accused.
In her evidence, she states that her father and deceased mother are her parents and P.Ws.3 and 4 are her grand parents. It is her evidence that her mother expired since, her father had assaulted her. She does not remember the date or time at which her father had assaulted her mother. But she claims that she remember that the accused had assaulted her mother with a club in the evening. It is also her evidence that her parents used to always quarrelling with each other at home. The accused had assaulter her mother since, the accused came home after consuming alcohol and had asked her mother for coffee. It is also her evidence that she has informed P.Ws.1, 3 and 4 about the assault made by the accused on her mother with club.
She was subjected to cross-examination. In the cross- examination, she admits that now she is staying along with her grand parents. It is also elicited that on the day of her mother’s death, all of them had gone to the town in a jeep, after having breakfast. It is also her evidence that they had lunch in a hotel. Nobody informed her about the quarrel between her parents and she does not know for what reason they were quarrelling with each other. It is also elicited that her mother never made any complaint to her that the accused was always quarrelling and assaulting her after consuming alcohol. But she claims that she has personally seen the accused slitting the neck of her mother and she did not see anything else apart from the accused slitting the neck of her mother. She further admits that nobody informed that the accused had assaulted her mother with club.
33. The accused also examined one witness as D.W.1, who is the Principal of Saraswathi D.Ed Collge, Madikeri. In her evidence, she states that the deceased took D.Ed exam and he also marked Exs.D7 and D8 i.e. admission tickets. Ex.D7 pertains to D.Ed examination of first year conducted during July, 2014 and since the said student did not pass in one paper, she has taken up supplementary exam conducted on 27.12.2014 as per Ex.D8.
In the cross-examination, he admits that exam as per Ex.D8 was held from 10.00 a.m. to 1.00 p.m. and he cannot state the student had passed the said examination without looking into the result sheet. The results are usually declared after about 1½ months of the exam.
34. D.W.2 is the Doctor, who gave the treatment to the deceased. In his evidence, he states that on 23.10.2013, one K.K. Shruthi Rajesh had taken treatment in his hospital and she was complaining of pain and swelling on her ankle. On examination, they found that she had sustained a sprain and there was no fracture. On 13.11.2013, she again came and got removed the POP and through this witness Exs.D9 and D10 are marked.
In the cross-examination by the learned Public Prosecutor, it is elicited that said K.K.Shruthi Rajesh was not admitted as inpatient in the hospital and she was only treated as out patient.
35. Now let this Court consider both oral and documentary evidence adduced by the prosecution as well as the defence, keeping in view the contentions urged by learned counsel for the accused and learned High Court Government Pleader for the respondent-State.
36. The main contention of the learned counsel for the accused in his argument is that the witnesses, who have been examined before the Court are all relative witnesses. P.Ws.1 and 2 are brother and sister of the deceased, P.Ws.3 and 4 are the parents of the deceased. P.W.7 is the brother-in-law. There is a force in the contention of the learned counsel for the accused that no independent witnesses have supported the case of the prosecution. When the witnesses are relative witnesses, the Court has to analyze the evidence available before the Court with due care and caution. Merely because the witnesses are relatives of the deceased, their evidence cannot be discarded in toto. The Court has to examine whether the evidence of these witnesses inspires the confidence of the Court to accept the case of the prosecution.
37. No doubt, in the evidence of P.Ws.1 to 4 and also P.W.7, it is elicited that the accused and deceased were cordial, however their evidence is that the accused used to consume alcohol and was subjecting the deceased for harassment. It is also important to note that no panchayath was held in that regard as contended by the learned counsel for the accused.
However, the fact remains before the Court is that, P.W.1 has categorically stated that on the date of the incident in the evening, the deceased has sent SMS in Kodava language to him stating that the accused assaulted her with club which is also recorded in the spot mahazar in terms of Ex.P8(d). It is also the evidence of P.W.1 that, in the message, her sister has stated that she was subjected to assault with the club and the deceased had also abused her that she is not fit to lead her life and scolded her to go and die which is evident from Ex.P8.
38. It is also important to note that the Investigating Officer, who conducted the investigation, in his evidence states that he did not make any effort to get the report with regard to the message sent by the deceased to P.W.1. It is also important to note that he categorically admits that he did not seize the mobile of P.W.1, but he claims that P.W.1 had informed him that the said message was deleted inadvertently.
39. It is pertinent to note that P.W.14, the daughter of the accused and deceased in her evidence states that the accused had assaulted her mother with club and it is also the evidence of P.Ws.1 to 4 that P.W.14 came and told that accused assaulted her mother with club. No doubt in the cross- examination of P.W.14, it is elicited that except slitting the neck of her mother, she did not observe anything, but in her chief evidence, she has spoken with regard to the assault made by the accused with club. The age of P.W.14 at the time of the incident was only five years and when she was examined before the Court below, she was aged about eight years. The Court also before recording the evidence of P.W.14 has put Court questions and only after confirming that she is capable to understand the questions posed to her, the evidence was recorded. Though P.W.14 did not say about the date or time as to when her father had assaulted her mother, but she categorically states that her father assaulted with the club in the evening.
40. It is also important to note the evidence of P.W.1 that he received the message in the evening and Ex.P8 mahazar discloses that the message was sent at 5.45 p.m. It is also important to note that inquest was conducted by the Tahsildar, who has been examined as P.W.11. In his evidence, he reiterates that he noticed the injuries on both the left and right thighs. The inquest mahazar also discloses that there were injuries on both the left and right thighs. The post mortem report marked as Ex.P9 also discloses that there were injuries on the left and right thighs. The Doctor, who has been examined as P.W.10 in his evidence states that the death was due to asphyxia as a result of hanging. It is also important to note that in his evidence, he categorically states that there was haematoma measuring 2 x 5 cms. over left thigh posterior-lateral part and 4 x 7 cms. over right thigh posterior part. It is his evidence that, the haematoma on the thigh could be caused when an assault is made by means of club. The said haematoma could have been caused between 12 to 24 hours prior to the post mortem examination. He conducted the post mortem from 2.45 p.m. to 4.00 p.m. on the next day.
41. According to the prosecution, the incident has taken place in the evening on the previous day and the time of haematoma caused between 12 to 24 hours matches with the same. No doubt in the cross-examination of P.W.10 it is elicited that he cannot state the said haematoma is antemortem in nature or not only by looking at Ex.P9. The witness P.W.10 is further examined by learned Public Prosecutor and got elicited that the blood clot (haematoma) occurs only when a person is assaulted before the death and haematoma cannot be caused after the death of a person. In the further cross-examination by the learned counsel for the accused, it is elicited that, such haematoma could have been caused when the dead body of the deceased was brought down after she was found hanging. But there is no explanation on the part of the accused in his 313 statement that those injuries have been caused while bringing down the dead body of the deceased from hanging position as suggested.
42. It is also important to note that the measurement of the injuries mentioned in the evidence of the Doctor is not a kind of injuries that could have been caused while bringing the dead body of the deceased from the hanging position. It is also important to note that, except making such suggestion to P.W.10, the Doctor, no other suggestion was made with regard to the injuries sustained by the deceased. It is pertinent to note that, in the evening itself, the deceased has sent the message to P.W.1 and the same is marked in Ex.P.8, mahazar and the Investigating Officer also did not collect the report in respect of the message available in the mobile phone of the deceased, except seizing the same. However, an explanation is given by the Investigating Officer that P.W.1 had informed him that the messages available in his mobile phone was deleted. Merely because of lapse on the part of the Investigating Officer, the accused will not get the benefit. It is pertinent to note that when the complaint was given by P.W.1 in the mid night on the very same day, a specific recital was made in the complaint that he had received the SMS from his sister about the act of the accused and subjecting her to physical assault. Both in the complaint as well as in the First Information Report, the said contents of the complaint are mentioned and hence, it cannot be held that the same is a after thought.
43. Under the circumstances, the Court has to give credence to the evidence of P.W.1 and the evidence of P.W.14, whose evidence is clear that the accused assaulted her mother with club. The injuries found on both the thighs of the deceased substantiates the case of the prosecution and there is no explanation on the part of the accused. It is also pertinent to note that the evidence of the Doctor is clear that the injuries sustained are antemortem in nature and the same could have caused 12 to 24 hours of conducting the post mortem. These are the materials available on record which substantiates the case of the prosecution with regard to subjecting the deceased to assault. No doubt in the cross-examination of the witnesses it is elicited that both the accused and deceased were cordial, it is clear that the accused used to consume alcohol and was subjecting the deceased to assault.
44. The citation given by the learned counsel for the accused will not come to the aid of the accused, no doubt there is no dispute with regard to the principles laid down by the Hon’ble Apex Court. In the case on hand, it is to be noted that in Sanju’s case, the Hon’ble Apex Court has held that there must be presence of mens rea to utter the words “to go and die”. Merely because he uttered the words “to go and die” cannot constitute mens rea and the Court also cannot convict the accused by mere uttering of words. In the case on hand, it is to be noted that the accused has assaulted the deceased with the club and thereafter, he uttered the words, she is not fit to live Hence, the said judgment will not come to the aid of the accused.
45. In Atmaram’s case, the Hon’ble Apex Court has held that there must be proximity to take a decision to commit suicide and that the husband committed cruelty of the nature described under Clause (a) and (b) of the Explanation to Section 498 of IPC. But in the case on hand, it is to be noted that the incident has taken place in the evening and the accused has assaulted the deceased with club and medical evidence also corroborates that the deceased was subjected to assault and she had sustained injuries to both the thighs. When such being the case, when there is proximity to cause of death and only after assault, she took the extreme step to commit suicide and the same is also intimated to the brother by mode of SMS hence, the Trial Court has not committed any error in invoking Sections 498-A and 306 of IPC.
46. It is also important to note that the Court below has observed that the evidence led in by the prosecution clearly invokes the presumption under Section 113-A of the Evidence Act and the accused has failed to rebut the said presumption with any counter-evidence. In the case on hand, it is to be noted that the deceased took the extreme step to commit suicide in the matrimonial house, no doubt on the particular day, all of them had been to town and the deceased also attended D.Ed examination. The deceased did not fair well in the examination and she was having weak mind and this contention also cannot be accepted for the reason that she already failed in the exam and on that day she took supplementary examination. But that does not mean that no such incident has taken place in the evening. The evidence of the prosecution corroborates that an incident has taken place in the evening. As already pointed out, there is no explanation on the part of the accused regarding the injuries sustained by the deceased. The Court below has also invoked Section 106 of the Evidence Act, since the death has taken place inside the house of the deceased. The very contention of the learned counsel for the accused that there was no harassment and both the accused and deceased were cordial will not come to the aid of the accused. The fact that she has sustained injuries to both the thighs and there was haematoma on both the thighs is not in dispute and the same has not been explained. Under the circumstances, there is a force in the contention of the learned High Court Government Pleader for the respondent-State that P.W.1 received the message from the deceased prior to her death and Court below has rightly invoked Sections 113-A and 106 of the Evidence Act.
47. Having considered both oral and documentary evidence available on record, the evidence of P.Ws.1 to 4 and 7 coupled with the evidence of Doctor P.W.10, particularly the evidence of P.W.14, the minor daughter, no doubt there is an embellishment in the evidence of P.W.14, it is true that she states in the cross-examination that accused slit her mother’s neck. The Court has to give credence to the evidence of P.W.14 which she has narrated in her chief evidence. It is natural that in the evidence of a minor witness, there would be some embellishment and improvement, the same cannot be a ground to discard the evidence of a minor witness in toto.
48. Considering the evidence of witnesses particularly, P.Ws.1 to 4 and 7, though they are relative witnesses, their evidence cannot be discarded. In that regard, this Court would like to refer the judgment in the case of Khurshid Ahmed Vs. State of Jammu and Kashmir reported in 2018 (3) SCC Cri 61 wherein the Hon’ble Apex Court has held that there is no proposition in law that relatives are to be treated as untruthful witnesses and if the evidence inspires the confidence of the Court that an incident has taken place, their evidence cannot be discarded. Hence, the contention that except relative witnesses, there is no independent witnesses available before the Court cannot be accepted. The Court below in detail has discussed both oral and documentary evidence available on record and has given its anxious consideration while appreciating both oral and documentary evidence. Hence, I do not find any reason to reverse the findings of the Trial Court.
49. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is dismissed.
Sd/- JUDGE MD/ST