IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.199/2019 Between:
State of Karnataka By police Inspector Peenya Police Station Bengaluru Rep. by State Public Prosecutor High Court Building Bengaluru-1 (By Sri Vijaykumar Majage, Addl. SPP) And:
Devaraj G.K S/o Kenchappa Aged about 33 years R/at No:8, Huchhappa Building Thirumalapura Nagasandra Post Bengaluru – 560 073 … Appellant … Respondent ( Notice to respondent dispensed with v/o dtd 22.11.2019) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C., praying to grant leave to appeal against the judgment and order of acquittal dated 03.07.2018 passed in S.C.No.783/2013 by the learned LXXI Additional City Civil and Sessions Judge, Bangalore (CCH-72) thereby acquitting the accused/respondent of the offences P/U/S 498A, 306 of IPC.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:
J U D G M E N T This appeal has been preferred by the appellant- State, being aggrieved by the judgment and order of acquittal passed by LXXI Additional City Civil and Sessions Judge, Bengaluru City in S.C.No.783/2013 dated 03.07.2018.
2. I have heard the learned Additional State Public Prosecutor for the appellant.
3. Though this case is listed for hearing on interlocutory application, the notice to respondent is dispensed, heard the case finally.
4. The case of the prosecution in brief is that the marriage of the accused was performed with the deceased. Thereafter, they stayed in Thippenahalli in a rented house. Out of the wedlock, deceased gave birth to a male child. There was friction between the husband and wife, within two years of their marriage, on the ground that the accused was having affair with one Savitha and told her that he would give divorce and he also used to suspect her fidelity. It is further alleged that he used to insist for dowry from her parental house. In that light, both physical and mental harassment was alleged. In that light, on 23.02.2013, at about 9.45 p.m, the deceased committed suicide by hanging herself with a saree. Thereafter, immediately PW.2 filed the UDR complaint and after four days PW.1- the mother of the deceased filed a complaint making the above said allegations. On the basis of the said complaint, a case has been registered in Cr.No.113/2013. After investigation the charge sheet was filed.
5. The said case was committed to the Court of sessions, Court took cognizance, secured the presence of the accused and thereafter the charge was framed.
Accused pleaded not guilty he claims to be tried. As such trial was fixed. In order to prove the case of prosecution, the prosecution got examined 9 witnesses and marked 11 documents as Exhibits P.1 to P.9. No material objects have been got marked.
6. Thereafter, the statement of the accused was recorded by putting incriminating material as against the accused. Accused denied the same. The accused has not led any evidence nor got marked any documents. After hearing the learned Additional State Public Prosecutor and the learned counsel for the accused, the impugned order of acquittal came to be passed.
7. The main grounds urged by learned Additional State Public Prosecutor is that the impugned judgment and order of acquittal is contrary to law, evidence and material placed on record. The learned Sessions Judge has come to a wrong conclusion that there is no material to bring out the guilt of the accused.
8. It is his further contention that the trial Court while passing the judgment has not properly appreciated the evidence of PWs.1 and 2, though there is evidence with regard to ill-treatment and harassment and because of illicit relationship with one Savitha, the deceased has committed suicide. On the contrary, the trial Court has gone on a wrong direction only because that there is a delay in filing the complaint and in filing the UDR complaint and wrongly acquitted the accused.
9. It is his further submission that the trial Court has reached to a wrong decision though there is sufficient evidence and material to convict the accused. It is his further submission that the evidence of PWs.1 & 2 is corroborated with each other. It is his further submission that the accused has not explained under what circumstances she has committed suicide by hanging herself, the trial Court ought to have convicted the accused. On these grounds, he prayed to allow the appeal and set aside the impugned order and convict the accused.
10. I have carefully and cautiously gone through the submissions made by learned Additional State Public Prosecutor and perused the records and the evidence and the documents which were made available by the learned Additional State Public Prosecutor.
11. PW.1 is the mother of the deceased. In her evidence, she has deposed that the accused is the husband of the deceased and prior to the marriage they were loving each other. She was staying with her daughter and accused quarreled with her and sent her out of the house. Thereafter, she started residing in nearby house of the accused. Subsequently, the deceased became pregnant and she came and started to reside with the accused. Thereafter, the accused shifted along with the deceased to the house of PW.1 and she came to know that he is having affair with one Savitha. She advised him to leave her and because of that he used to quarrel and he told that he can’t leave the said Savitha and also used to quarrel with the deceased.
12. She has also further deposed that during the night hours he use to assault and ill-treat her. She has further deposed that on 23.02.2013 at about 12.00 midnight when he has been to second shift work, her deceased daughter was alone in the house and when she went to the house, the mother and the brother of the accused were in the house and they did not speak and the wife of the brother of the accused was hugging her daughter and when she asked why that she has hugged her daughter they told that because of giddiness she has fallen and she asked that why that she has not been taken to the hospital. They told that nobody is there to look after the child and as such they were not taken and when she tried to put water in her mouth she did not drink and immediately she shifted to hospital and there she came to know that she already dead. She has further deposed that accused got written the complaint and obtained the signatures of herself and her son. They signed the same under the impression that because of giddiness she has fallen and died.
13. In that light the UDR complaint has been registered. They have further deposed that before the Tahsildar that she has deposed that because of giddiness she has fallen and subsequently the crimination was done and subsequently she filed the complaint. She has identified the complaint as Ex.P1 and she also identified the spot mahazar as Ex.P2. This witness has been partly treated as hostile in so far as Ex.P2 is concerned.
14. During the course of cross examination she has admitted that the marriage of the accused and the deceased was a love marriage and since from the marriage they were residing separately. Other suggestions which have been made during the course of cross examination is denied.
15. PW.2 is the brother of the deceased, he has reiterated the averments of PW.1. In the chief examination that he has deposed that frequently his sister is used to complaint that she is having severe head ache and because of that she has tried two times for committing suicide. Except that nothing has been come out from the mouth of the said witness. PW.3 is the friend of PW.2, PW.4 is the inquest mahazar Panchanama to Ex.P7. Pw.5 is the owner of the house where the deceased and accused were residing, she has not supported the case of the prosecution and she has been treated as hostile witness. PW.6 is the head constable who recorded the UDR complaint. PW.7 is the Assistant Sub Inspector who received the complaint, filed by the PW-1 as per Ex.P1 and issued the FIR as Ex.P11. PW.8 is the police inspector who filed the charge sheet. PW.9 is the police inspector who investigated the case.
16. On close reading of the evidence, produced before the Court, it indicates that the alleged incident had taken place on 23.02.2013 and subsequently, the UDR complaint was registered on 24.02.2013. When the complaint has been registered under UDR and at that time the Tahsildar has recorded the statement of the witnesses and none of the witnesses have made any allegations against the accused about ill-treatment and harassment caused to the deceased and also for demand of dowry. Subsequently, after four days of the incident PW.1- the mother of the complainant has filed the complaint alleging all the above said allegations. From the material it disclose that there is a delay in filing the complaint. Though it is brought on record by prosecution that the said complaint has been prepared by the accused himself and obtained the signature of PWs.1 and 2 but when Tahsildar came to be examined the witness, they have disclosed that if there is no ill- treatment and harassment caused by the accused to the deceased and even if he is having any illicit relationship with one Savitha, then under such circumstances, definitely the witness would have disclosed the said fact immediately after the death of the deceased. In that light, the material produced will not be sufficient to hold that it is cogent and acceptable evidence.
17. Be that as it may, the records also indicates that the complainant PW.1- the mother of the deceased, for sometime has stayed along with the accused and the deceased and thereafter the accused sent out and again when the deceased became pregnant she has been brought back. The accused and the deceased were residing in the house of the complainant PW.1. When that being the case, some ill-treatment and harassment was there because of demand of dowry or because of some illicit relationship with one Savitha. Then under such circumstances, a panchayath would have been held with the accused, when it has been alleged that he has got extra marital relationship with one Savitha since two years.
18. In that light, the allegations of the complainant that there was demand of money for construction of house and accused was causing ill- treatment and harassment to her daughter, it is not acceptable. When both PWs.1 and 2 came to the house, when the death has occurred, then under such circumstances immediately the said fact would have been disclosed to police or Tahsildar. Even the records also indicates that no earlier complaint has been registered in this regard. Though the post mortem report Ex.P10, indicates the fact that the death of the deceased is due to Asphyxia as a result of hanging but the only question which arise before the Court is whether she committed suicide because of ill-treatment and harassment caused to her by the accused for demand of dowry or because of he is having extra marital relationship with one Savitha. But in so far as the ill-treatment and harassment for demand of dowry is concerned there is no substantial material produced before the Court to accept the same and even in order to come to the conclusion that there was extra marital relationship with one Savitha except the evidence of PWs.1 and 2 and that no independent witnesses have been examined and the owner of the house was examined as PW.5. But she has also not supported the case of the prosecution. Then under such circumstances, the said contention of the ill-treatment and illicit relationship of the accused, the deceased committed suicide, is not acceptable.
19. The deceased died a homicidal death but as could be seen from the material placed on record that it indicates that when PW.1 came to the house, the persons gathered there told that the deceased fell down due to the giddiness and because of that the wife of the brother of the accused hold her by hugging. Even PW.2 in his UDR complaint filed as per EX.P6 has clearly stated that frequently his sister used to get head ache and because of unbearable head ache two times she tried to commit suicide, which substantiate the case of accused, rather than the case of the prosecution.
20. Though during the course of evidence PWs.1 and 2 have stated that the said complaint has been prepared by the accused himself and they were not aware of the said fact because of the circumstance which was existing. But for the reasons best known to the Investing Officer who registered the said complaint filed under UDR, has not sent to the expert opinion, that in whose handwriting, the said complaint is existing. In the absence of such material, it can be held that the deceased committed suicide by hanging because of the ill-treatment and harassment. When no panchayath has been held, no allegations have been made because of the ill-treatment and harassment she committed suicide, and even immediately after coming to know the death of the deceased, the complaint was filed, she has not made any allegations in the complaints though she has stated said fact of ill- treatment of the accused and harass the deceased and having illicit relationship with one Savitha since two years. Even the complaint which has been filed after 4 days of the incident, that itself would create a doubt that the said complaint has been registered after deliberation and discussion. Even the mother of deceased who is knowing about the ill-treatment and harassment to her daughter by the son-in-law, will not spare and will not file the complaint immediately after coming to know about the death of her daughter.
21. In that light, the delay in filing the complaint plays a vital role to take a decision in the case. In that light also when the prosecution has not uttered anything about while filing of the complaint by PW.1. In the absence of all these material the Court below has come to a right conclusion. Even on close reading the material produced clearly indicate that there is no ingredients brought on record by the prosecution to bring home the guilt of the accused under Section 306 of IPC. In order to bring home the guilt of the accused under Section 306 of IPC, the prosecution has to clearly establish that soon before the death there was ill- treatment and harassment caused to the deceased and thereby deceased was instigated to commit suicide. In that light, the accused is liable to be acquitted.
22. Looking from any angle, from the material produced, if it is scrutinized, it is difficult to accept the contentions which has been raised in the appeal. The appeal is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
In view of the dismissal of the appeal, I.A No.1/2019 also does not survive for consideration and the same is disposed of.
Sd/- JUDGE HB