IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.131/2018 BETWEEN:
The State of Karnataka by Mahila Police Station Mysuru District, Mysuru, Represented by State Public Prosecutor, High Court Building Bengaluru-560 001.
(By Sri K.Nageshwarappa, HCGP) AND:
1. Keshavamurthy S/o late Basappa Aged about 51 years KSRTC Mechanic.
2. Shivamma W/o late Basappa Aged about 77 years 3. Mahadevaswamy S/o late Basappa Aged about 47 years 4. Harihara S/o late Basappa Aged about 45 years …Appellant 5. Mamatha @ Mahadevamma Aged about 42 years 6. Shivarudra Aged about 47 years All are R/o No.16/A, 6th Cross, Rajendranagara, Kesare, Mysuru.
(By Sri K.A.Chandrashekara, Advocate) …Respondents This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C praying to grant leave to file an appeal against the Judgment and Order dated 28.06.2017, passed by the V Additional District and Sessions Judge, Mysuru, in S.C.No.91/2011 Acquitting the respondent/accused for the offences punishable under Sections 498(A) and 306 r/w. Section 34 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act.
This Criminal Appeal coming on for Admission this day the Court delivered the following:-
J U D G M E N T Though this case is posted for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal and disposed of by this judgment.
2. The present appeal has been preferred by the State being aggrieved by the judgment and order of acquittal passed by V Additional District and Sessions Judge at Mysuru, in S.C.No.91/2011 dated 28.6.2017.
3. I have heard the learned High Court Government Pleader for the appellant/State and the learned counsel for the respondents/accused Nos.1 to 6.
4. The case of the prosecution in brief is that; firstly a missing complaint was lodged by the brother of the deceased PW4 stating that on 23.2.2010 during evening hours the husband of the deceased accused No.1 called him and informed that the deceased Shashikala was missing. It is further stated that at that time accused No.1 had gone to the work and when he returned he found that his wife Shashikala was missing and house was locked. Thereafter, a search was made every where, but she could not be found and ultimately complaint was registered. Thereafter, on 25.2.2010 again the complainant filed another complaint stating that deceased was married to accused No.1 and on 23.2.2010 accused No.1 informed on previous night at about 9.17 p.m. about the missing of his wife Shashikala and the door has been locked. Thereafter, the complainant went to the house of the accused and found that the door was locked. Thereafter, a missing complaint was filed. The said deceased Shashikala was not having any issues. Accused No.1 and his family members were harassing her and somebody informed him on 25.2.2010 that near Malavalli Purigalli Village at B.G.Mole a dead body has been fallen and thereafter they went and found the body as that of the sister of the complainant, by expressing the doubts he filed the complaint. On the basis of the said complaint, in the first instance U.D.R. case was registered in Crime No.3/2010 and during the course of investigation further statement of PW4 was recorded and after investigation the charge sheet was laid against the accused.
5. It is further stated that after filing of the charge sheet the committal Court committed the case to the Sessions Court, after following the formalities. The Court took the cognizance and secured the presence of the accused and after hearing both the parties charge was framed and read over to the accused. Accused pleaded not guilty and they claimed to be tried and as such trial was fixed.
6. In order to prove the case of the prosecution, it has got examined PWs.1 to 15 and got marked Exs.P1 to P17 and also MOs.1 to 13. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating materials as against them and they denied the same. Thereafter, the accused persons have not led any defence evidence, not got marked any documents. After hearing, the impugned judgment of acquittal came to be passed. Challenging the legality and correctness of the said judgment the State is before this Court.
7. The main grounds urged by the learned High Court Government Pleader are that there is sufficient material to show that accused No.1 and other family members have ill- treated and caused cruelty to the deceased for having not given any issues out of wedlock. It is his further submission that accused No.1 was having illicit relationship with wife of accused No.3, and harassment which was there to the deceased was aggravated. When the same was questioned, it is because of the ill-treatment and harassment the deceased Shashikala committed suicide by drowning into the river. It is his further submission that the evidence of PWs.3, 4, 7, 8 and 12 have not been properly appreciated by the Court below. It is his further submission that when once the ill-treatment and harassment is proved the inference is to be drawn that because of the same she has committed suicide and accused persons are also liable to be convicted for the offence under Section 306 of IPC. On these grounds, he prayed to allow the appeal and to convict the accused appropriately in accordance with law.
8. Per contra, the learned counsel appearing on behalf of the respondents/accused vehemently argued and submitted that though it is alleged by the prosecution that there was ill-treatment and harassment caused by the accused persons, the marriage of the deceased was performed with accused No.1 about 12 years back and no neighbourers have supported the case of the prosecution to substantiate the fact that there was ill-treatment and harassment caused by accused No.1. It is his further submission that accused No.1 and the deceased were separately living and the other accused persons are having a separate accommodation. Then under such circumstances, there is no question of other accused persons ill-treating and harassing the deceased. It is his further submission that PW7 the mother of the deceased has admitted that accused No.1 was suffering from various illness including G.B.Syndrome and was taking treatment and because of that the deceased who was serving as a teacher has resigned and she used to look after him in the hospital. It is his further submission that the ill-treatment and harassment to the deceased soon before the death has not been proved. It is his further submission that there was neither abetment nor ill-treatment to come to the conclusion that the accused have committed the alleged offence. It is his further submission that the deceased was not having any children and the husband of the deceased was also suffering with various ailments and illness and because of that she committed suicide by drowning into the river. It is his further submission that the trial Court after appreciating the evidence on record has rightly come to the right conclusion and there are no good reasons to allow the appeal and to set aside the impugned judgment. On these grounds he prayed to dismiss the appeal.
9. I have carefully and cautiously gone through the submissions of the learned counsel appearing for the parties and perused the records.
10. In order to prove the case of the prosecution, it has got examined 15 witnesses. PW1 is the Doctor who conducted autopsy over the body of the deceased and issued the post mortem report as per Ex.P1.
PW2 is the Police Constable who submitted the viscera and other articles to FSL for chemical examination. PW3 is the brother of the deceased who speaks about ill- treatment and harassment caused to the deceased. PW4 is the another brother of the deceased who received the phone call and thereafter he filed a missing complaint and subsequent complaint after recovery of the body. PW5 is the spot mahazar pancha to Ex.P4. PW6 is the person who helped PW4 the complainant to file the complaint. PW7 is the mother of the deceased, she has also substantiated the case of the complainant. PW8 is the friend of PW3 and PW4, he has partly supported the case of the prosecution. PWs.9, 10 and 11 are the official witnesses. PW12 is the person who helped PW4 in filing the complaint. PW13 is the Counselor who conciliated the matter between the accused and the deceased. PW14 is the official witness. PW15 is the Investigating Officer who investigated the case and filed the charge sheet.
11. The learned High Court Government Pleader and the learned counsel for the respondents/accused taken me through the evidence adduced before the Court below.
12. It is the case of the prosecution that accused No.1 and other accused persons used to ill-treat and harass the deceased by saying that she did not conceive and begot child. Accused No.1 was having illicit relationship with wife of accused No.3. Though during the course of evidence, PWs.3, 4 and 7 have deposed about the ill-treatment and harassment said to have been caused by the accused persons, admittedly the marriage of the deceased was performed about 11 years prior to the incident in question and there is no material produced before the trial Court to show that any complaint was registered for the said ill- treatment said to have been caused to the deceased soon before her death. The evidence produced by the prosecution in this regard does not substantiate its case. Except the interested testimony of PWs.3, 4 and 7, no other witnesses have spoken with regard to ill-treatment and harassment said to have been caused to the deceased soon before her death. If really there was ill-treatment and harassment caused to the deceased, then under such circumstances, she could have disclosed the said fact to the neighbourers or some other persons who are also residing in the same village. In the absence of any such material, it cannot be said that there was ill-treatment and harassment to the deceased.
13. Be that as it may, it is the case of the prosecution that the deceased did not conceive and accused No.1 was having illicit relationship with wife of accused No.3. But the evidence of PW.7-mother of the deceased discloses the fact that accused No.1 was suffering from G.B. Syndrome and the deceased who was working as a teacher left the job to serve accused No.1 in the hospital. Even the records also indicate that accused No.1 was not physically fit and he requested his employer-KSRTC to provide a clerical job stating that he cannot sustain for a long time to the said job as a Mechanic. Even PW.7 has also deposed that accused No.1 was having defect as he was suffering from G.B.Syndrome and medical Officers advised accused No.1 that he needs medication so that the couple may get a child. Under such circumstances, the evidence which has been produced by the prosecution does not substantiate the fact that soon before the death of the deceased, there was ill-treatment and harassment by the accused.
14. In order to bring home the guilt of the accused under Section 306 of IPC, there must be either instigation to commit the offence or the accused persons must have conspired to commit the offence or leading of commission of such offence. Nowhere in the evidence of PWs.3, 4, 7, they have stated that there was an abetment by the accused persons to commit suicide by the deceased. Whatever the evidence which has been produced by the prosecution cannot be held to be sufficient to hold that there was some instigation to the deceased for committing the suicide soon before her death. When once the prosecution has failed to prove that there was ill-treatment and harassment soon before the death of the deceased and when there is no material, it cannot be held that the accused persons instigated the deceased to commit suicide by jumping into the river and death was due to drowning. Even the trial Court has observed that the deceased was a B.Sc. graduate and she was working in Geetha Convent as a teacher. If she was having good qualification and day- today knowledge, then under such circumstances, definitely she could have left written document or she could have written letters to the complainant or her mother-PW.7. Though in the evidence of PWs.7 and 4 they have deposed that they went to the house of accused No.1 and advised him to behave properly, the said evidence is also not substantiated by the evidence of any independent witnesses. Looking from any angle, the prosecution has not clearly established the fact that it is the accused persons who have ill-treated and harassed the deceased soon before her death and instigated her to commit suicide. The trial Court after considering the entire evidence on record, has rightly come to the conclusion and acquitted the accused. There are no good grounds to re-appreciate the entire evidence and come to a different conclusion. The impugned judgment and order of acquittal passed by the trial Court deserves to be confirmed and the same is confirmed.
Accordingly, the appeal is dismissed being devoid of merits.
Sd/- JUDGE Pages 1 to 10…….ap/- Pages 11 to end…ck/-