IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL CRIMINAL APPEAL No.170 OF 2019 C/W CRIMINAL APPEAL No.2037 OF 2018 CRL.A.No.170/2019 BETWEEN:
State of Karnataka, By Police Sub – Inspector, Virajpet Town Police Station, Represented by State Public Prosecutor, High Court Building, Bengaluru – 1. ... Appellant (By Sri. M.Diwakar Maddur, HCGP) AND:
Vijaya Kumara K.G., S/o late Gopinatha, Aged about 38 years, Auto Rickshaw Driver, Meenupet, Virajpet, Kodagu District – 571 218. ... Respondent (By Sri. Manu Kulkarni, Advocate and Sri.Shravanth Arya Tandra, Advocate) This Criminal Appeal is filed under Sections 378(1) and (3) of Cr.P.C. praying to grant leave to appeal against the judgment and order of acquittal dated 27.09.2018 passed in S.C.No.5003/2017 by the Learned II Additional District and Sessions Judge, Kodagu – Madikeri sitting at Virajpet thereby convicting the accused/respondent of the offence P/U/S 498A of IPC and acquitting the accused/respondent of the offence P/U/S 306 of IPC.
CRL.A.No.2037/2018 BETWEEN:
Vijaya Kumara K.G., S/o late Gopinatha, Aged about 37 years, Auto Rickshaw Driver, Meenupet, Virajpet, Kodagu District – 571 218. ... Appellant (By Sri. Manu Kulkarni, Advocate and Sri.Shravanth Arya Tandra, Advocate) AND:
State by Police Sub – Inspector, Virajpet Town Police Station, Vjirajpet – 571 218.
Represented by S.P.P., High Court of Karnataka, At Bengaluru – 1. ... Respondent (By Sri. M.Diwakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment of conviction and sentence dated 27.09.2018 passed by the II Additional District and Sessions Judge, Kodagu – Madikeri sitting at Virajpet in S.C.No.5003/2017, convicting the appellant/accused For the offence P/U/S 498A of IPC.
These Criminal Appeals coming on for admission this day, the Court delivered the following:-
J U D G M E N T Criminal appeal No.2037/2018 has been preferred by the appellant/accused and Criminal Appeal No.170/2019 has been preferred by the State challenging the judgment passed by the II Additional District and Sessions Judge, Kodagu sitting at Virajpet in S.C.No.5003/2017 dated 17.09.2018.
2. I have heard the learned counsel Sri. Manu Kulkarni, Advocate and Sri.Shravanth Arya Tandra for the appellant/accused and learned HCGP for the respondent-State.
3. The factual matrix of the case as per the case of the complainant are that on 22.10.2016 accused abused by picking up quarrel with the deceased/his wife stating that the deceased washed the shirt of the victim without observing the green leaf in the shirt pocket, which has caused stink and because of the quarrel she was intending to commit suicide, as accused told that ‘instead of living, go and die’ and on 23.10.2016 at about 10.20 a.m. the deceased committed suicide by hanging. Immediately, on receipt of telephone call PW1-father of the deceased came and by noticing the death of the deceased filed the complaint. On the basis of the complaint a case was registered and after investigation charge sheet has been filed.
4. Trial Court committed the case after following the procedure. The Sessions Court took the cognizance and secured the presence of the accused.
After hearing the accused and the Public Prosecutor regarding framing of the charge, charge was framed, read over and explained to the accused. The accused pleaded not guilty and claims to be tried, as such the trial was fixed. In order to prove the case of the prosecution, prosecution got examined 16 witnesses and got marked 21 documents and during the course of cross examination Ex.D1 to D6 were got marked and vale was got marked as M.O. No.1. Thereafter statement of the accused was recorded by putting incriminating materials as against him. He denied the same. Accused has not led any defense evidence. After hearing the learned counsel appearing for the parties the trial Court acquitted the accused for the offences punishable under Section 306 of IPC and found guilty for the offences punishable under Section 498A of IPC and accordingly convicted.
5. Against the order of acquittal the State is before this Court and as against the order of conviction under Section 498A of IPC the accused is also before this Court challenging the legality and correctness of the said judgment.
6. It is the contention of the learned HCGP that the impugned judgment and order of acquittal is perverse, contrary to law and evidence placed on record. It is his further submission that the evidence of PWs-1, 5, and 7 clearly goes to show that there was quarrel between the deceased and the accused. They have advised and the matter has been amicably settled between the parties. He further submitted that prior to the death, she had called telephonically and informed PW1 about ill-treatment and harassment meted out to her by the accused and disconnected the call. When immediately prior to the death when she has intimated about the ill-treatment and harassment, then under such circumstances, the trial Court ought to have accepted the said evidence and convicted the accused for the offence punishable under Section 306 of IPC. The trial Court erroneously has acquitted for the alleged offence.
7. It is his further contention that the evidence led by the prosecution is consistent and corroborative. In the absence of anything brought on record during the course of cross examination the said evidence ought to have been accepted and accused ought to have been convicted for the offence punishable under Section 306 of IPC. It is his further submission that the trial Court has already come to the conclusion that there was ill- treatment and harassment said to have been caused by the accused. When the said fact has been established, it indicates that soon before the death of the deceased she has called PWs 1 and 7, informed about the ill- treatment and harassment, then under such circumstances, inference ought to have been drawn by the Court below that the deceased died due to ill- treatment and harassment caused by the accused. It is his further contention that as per Section 106 of the Evidence Act the burden is on the accused to prove as to under what circumstances the deceased committed suicide. In the absence of the same an adverse inference has to be drawn and accused is liable to be convicted. Only on assumptions and presumptions, trial Court has wrongly acquitted the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment and convict the accused for the offence punishable under Section 306 of IPC.
8. It is the submission of the learned counsel for the accused that the trial Court has not properly appreciated the facts and materials placed on record, while coming to the conclusion that there was ill- treatment and harassment said to have been caused to the deceased. He further submitted that in the complaint, Ex.P-1, itself it has been clearly mentioned that since 1½ years they were living happily and there was no allegations about ill-treatment and harassment. Under such circumstances, drawing up of inference that there was ill-treatment and harassment to the deceased before the death is not justifiable and acceptable. The trial Court has rightly analysed and has come to a right conclusion.
9. It is his further submission that PW-1 after not satisfying the fact on ill-treatment and harassment, even all the evidences which have been produced, they clearly go to show that some minor family disputes were existing in between the husband and wife, no major issues have been made out by the prosecution. It is his further submission that even in the evidence of PWs-1, 5, 6 and 7 there is contradiction and they have not stated anything about the immediate instigation said to have been caused by the accused. It is his further submission that the mother has been examined as PW1 and she has not said a single word about ill-treatment and harassment caused by the accused. He further submitted that the dispute which has been stated in the complaint itself is regarding the washing of the cloth without removing the wet leaf from the pocket and which has created a stain that is not a major issue and no cogent and acceptable evidence has been produced to come to the conclusion that the said quarrel itself caused and instigated the deceased to commit suicide.
10. It is his further submission that though it is alleged in the complaint as well as in the evidence that the accused was having some illicit relationship with PW-12. PW-12 has been examined before the Court and she has completely turned hostile. The said fact of illicit relationship with PW-12 has not been established. No independent witnesses have also supported the case of the prosecution. It is his further submission that PWs-3 and 11 have been examined, who are the neighbors residing by the side of the house of the accused and they have not whispered anything about the ill- treatment and harassment, they have also not produced any material. In that light also trial Court has wrongly convicted the accused. It is his further submission that the evidence does not repose confidence even to convict the accused for the offence punishable under Section 498A of IPC. It is his further submission that not even a single specific instance has been alleged for having ill- treated and harassed the deceased by the accused. Whatever, the allegations which have been made are very few allegations and prima facie there is no material to held that the appellant is liable to be convicted under Section 498A of I.P.C.
11. It is his further submission that the provisions of Section 106 of Evidence Act is not applicable since the mother-in-law and the accused were staying together and no one were there in the house at the time of alleged incident. Under such circumstances, the question of explaining the circumstances under which the deceased has committed the suicide does not arise. It is his further submission that prosecution has utterly failed to bring the ingredients to convict the accused under Section 306 of IPC. Trial Court has rightly acquitted the accused and on the contrary without proper appreciation has wrongly convicted the accused under Section 498A and as such he prays to allow the appeal and set aside the impugned order and acuit the accused.
12. I have consciously and carefully gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records.
13. It is not in dispute that the accused and the deceased were husband and wife and they have led the marital life for more than 11 years and out of their wedlock they got two male siblings. It is the specific case of the prosecution that because of the ill-treatment and harassment caused to the deceased and also the accused was having illicit relationship with PW-12 and because of that on 23.10.2016 she committed suicide by hanging. In-so-far-as the death of the deceased is concerned, it was a homicidal death is not in dispute. The only question which arises for consideration of this Court is whether because of the instigation of the accused and also because of the ill-treatment and harassment as the accused was having illicit relationship with PW-12, she committed suicide by hanging with veil?
14. In order to prove the case of the prosecution, it has examined 16 witnesses. PW-1 is the father of the deceased and he is also the complainant. He speaks with regard to relationship existing between the accused and the deceased and performing of the marriage. He further deposed that after the marriage accused used to quarrel for petty causes and the same is used to be informed by his daughter over the phone and two three times they have advised the accused and he has further deposed that accused was having illicit relationship with another woman and deceased used to tell that because of that illicit relationship accused is ill-treating and harassing her. It is further deposed that after coming to know the fact that accused is having an illicit relationship with the woman, accused aggravated the ill-treatment and harassment. He further deposed that when he was in Gonikoppa at about 10.00 a.m. deceased called him over the phone and told that because of his ill-treatment she does not know as to what to do, she was serious and asked him to come immediately.
15. Immediately when he went there and there he saw the dead body of the deceased lying on the floor and a veil was tied to the neck and thereafter he filed the complaint as per Ex.P1. During the course of cross examination he has admitted that he used to go to the house of the accused often and prior to the death also they have visited his house. He has also admitted that for a marriage function about a year back they have come to Virajpet and they have attended the marriage. Further he admitted that the accused and his daughter used to quarrel for petty cause and when they came and asked they said that they are quiet well. He has further admitted that his daughter told that the accused treated her well. Certain contradictions have been pointed out by the accused by bringing them in the cross examination he also admitted the same.
16. PW-3, the neighbor stated that there was some galata between the deceased and the accused and he had gone and heard the accused telling the word ‘go and die’. He has not submitted the case of prosecution and turned as hostile. PW-4 is also a neighbor and he is also not supported the case of the prosecution and treated as hostile. PW-5, the brother of PW-1, PW-6 is the mother of the deceased, PW-7 is the sister of the deceased. They also reiterated the evidence of PW-1. PW-6 is the mother of the deceased. In her evidence she has not deposed anything about the ill-treatment and harassment said to have been caused to the deceased by accused and she has deposed that she came to know about the illicit relationship with another woman and thereafter Panchayat has been held and in the Panchayat accused confessed that he will look after her well, except that nothing has been brought on record in her evidence. During the course of cross examination she has deposed that two years prior to her death she has come to her house and she stayed there and at that time she has not complained any complaints as against the accused.
17. PW-8 is the brother of PW-1. He speaks about the holding of the Panchayat for silly reasons and he speaks that he has advised the accused and because of the ill-treatment and harassment meted out by the accused she has committed the suicide. During the course of cross examination nothing has been elicited so as to discard the evidence. PW-9 is the daughter of PW-
8. She has deposed that at the instance of PW-8 she wrote the complaint on the dictation of PW-1. PW-10 is the maid servant of PW-3. She has not supported the case of the prosecution and she has been turned hostile. PW-11 is also neighbor he has not supported the case of the prosecution and turned hostile. PW-12 is the woman with whom the accused was having illicit relationship and she has not supported the case of the prosecution and turned hostile. PW-13 is the Doctor who conducted autopsy over the body of the deceased. He has been cross examined by Public Prosecutor by treating him as partly hostile. PW14 is the PSI who issued the FIR and after investigating the case filed the charge sheet. PW-15 is the brother-in-law of the deceased. He has also reiterated the evidence of PW-5. PW-16 is the mother of the accused.
18. On close reading of the evidence of the prosecution, in order to bring home the guilty of the accused under Section 306 of IPC, the prosecution has to establish that there must be instigation to commit the offence or aiding in commission of the offence. Before holding an accused guilty for the alleged offence the Court must scrupulously examine the facts of the case and also assess the entire evidence placed before it, to find out as to whether the cruelty and harassment has left the victim with no other alternative but to put an end to her life. As could be seen from the evidence of PW-1 since two years, the accused and deceased were living happily and even as could be seen from the evidence of PW-1 and other witnesses the deceased has called PW-7 on the night of 22.10.2016 and alleged incident has taken place on 23.10.2016 at about 10.20 a.m., there is a long gap.
19. I am conscious of the fact that soon before the death has to be considered meticulously, when it has happened, at that time no one was there in the house and even the material which has been produced, it is also not sufficient to hold that because of the said harassment the deceased committed the suicide. Based on the evidence produced by the prosecution which shows that the accused and the deceased used to quarrel for some petty reasons which are existing in household life, no serious allegations have been made by the prosecution witness about the ill-treatment and harassment meted out to the deceased by the accused.
20. Even the prosecution is intending to bring on record one more ground that the accused was having illicit relationship with PW12 and because of that the accused used to ill-treat and harass the deceased. During the course of cross examination they have categorically admitted that they do not know the name of the woman with whom the accused was having illicit relationship and even that they have deposed that the accused and deceased used to visit their house and were happily living. Under such circumstances, the instigation which has been done in committing suicide is also not properly pointing out the guilty of the accused. Another aspect which is intended to be brought on record by the prosecution is that on the alleged date of incident the accused has uttered the word in the said quarrel that ‘instead of living you should go and die’. But mere utterance of the word by the accused ‘to go and die’ is not considered to be in a direct result of the quarrel when the accused used an abusive language and told the deceased to go and die, this proposition of law is also been laid by the Hon’ble Supreme Court in the case of State of West Bengal Vs. Indrajit Kundu and others reported in 2019 SCC online SC 1364 and Sanju Alias Sanjay Singh Sengar Vs. State of Madhya Pradesh reported in (2002) 5 SCC 371 at para No.12 which has been observed as under:
12. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.’ 21. Even as could be seen from the records in order to constitute an offence under Section 306 of IPC the presence of mens rea must be proved by the prosecution that the words utterd in a quarrel or in a spur of moment cannot be taken to be uttered with intention or mens rea. It is a fit of anger and emotional. In that light also, assuming that the words have been used by the accused, it is not constituted to be an instigation to commit suicide. In that light also the observation made by the trial Court that there is no sufficient material to convict the accused is considered to be correct and the same has been properly considered and appreciated in this behalf. It is also been reported in 2019 SCC online SC 1364.
22. Taking into consideration the above said circumstances, there is no cogent and acceptable evidence to show that soon before the death, the accused has ill treated and harassed the deceased so as to commit the suicide. Though during the course of argument the learned HCGP contended that the death has taken place in the house of the accused, as per Section 106 of the Evidence Act, he has to explain the circumstances under which the deceased has committed suicide. The material has been brought on record before the Court below that the mother-in-law of the deceased has gone for coolie work and accused also left for auto driving and he was also not present and even though two sons were there and their presence in the house not properly explained whether they were in the house or not. Under the said circumstances the provision of Section 106 is not applicable so as to draw the inference as against the accused.
23. I have carefully and cautiously gone through the evidence with regard to ill-treatment and harassment said to have been caused by the accused. On going though the evidence, it has been produced through the evidence of PWs-1, 5, 7 and 9, they have deposed that the accused used to quarrel with the deceased and there was ill-treatment and harassment, but all the witnesses have categorically deposed that whatever the dispute which was there it was a stale and minor disputes which are considered to be existing in the family and even no complaint has been registered in so far as ill-treatment and harassment said to have been committed to the deceased. Though during the course of evidence the witnesses have deposed that the Panchayat has been held for settling the quarrel, in that light also no witness has been examined. All the witnesses who have been examined are related to the deceased either with consanguinity or some other manner. In the absence of any direct evidence available before the Court, it cannot be held that there was illicit relationship, ill treatment and harassment.
24. Then under such circumstances the conviction which has been arrived at by the Court below have been under Section 498A is also not justifiable and once the Court below has come to the conclusion that there was no ill-treatment and harassment even prior to the death of the deceased, with that context the entire evidence if it is looked into, then under such circumstances, there is no strong evidence to come to the conclusion that the accused has ill-treated and harassed the deceased.
25. Taking into consideration the above said facts and circumstances, the appellant has made out a case so as to set aside the impugned order of conviction for the offence under Section 498A of IPC.
In the light of the discussion held by me above, the appeal preferred by the State in Criminal Appeal No.170/2019 is dismissed as devoid of merits and Criminal Appeal No.2037/2010 is allowed and judgment passed by the II Additional District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet in S.C. No.5003/2017 dated 27.09.2018 is set aside and the accused is acquitted of the charges leveled against him. If any fine amount is deposited by the accused the same is ordered to be refunded to the accused on proper identification and acknowledgment. Bail bonds and surety bonds are cancelled.
Sd/- JUDGE BVK