1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 21ST DAY OF JUNE, 2013 BEFORE THE HON'BLE MR. JUSTICE B.V.PINTO CRIMINAL APPEAL NO.962/2006 BETWEEN 1. SRI MANJUNATH S/O NANJUNDAPPA AGED ABOUT 26 YEARS R/O JENUKALLU NAGAR ARSIKERE TOWN HASSAN DISTRICT - 573103 2. SMT. LAKSHMAMMA W/O NANJUNDAPPA AGED 45 YEARS R/O JENUKALLU NAGAR ARSIKERE TOWN HASSAN DISTRICT - 573103 ... APPELLANTS (BY SRI: K.V.NARASIMHAN, ADV.) AND : STATE BY RURAL POLICE STATION ARSIKERE TOWN HASSAN DISTRICT 573103 REPRESENTED BY STATE PUBLIC PROSECUTOR ... RESPONDENT (BY SRI.G.M.SRINIVASA REDDY, HCGP) CRL.A. IS FILED UNDER SECTION 374 OF CR.P.C. AGAISNT THE JUDGMENT DATED 18.4.2006 PASSED BY THE ADDL. S.J. AND P.O., FTC-II , HASSAN IN 2 S.C.NO.25/2003, CONVICTING THE APPELLANTS- ACCUSED 1 AND 2 FOR THE OFFENCE P/U/S 498-A OF IPC AND SENTENCING THEM TO UNDERGO S.I. FOR 2 YEARS EACH AND TO PAY FINE OF RS.1,000/- (RUPEES ONE THOUSAND ONLY) EACH AND I.D., TO UNDERGO SI FOR 2 MONTHS. THIS APPEAL IS COMING ON FOR FINAL HEARING ON THIS DAY THE COURT DELIVERED THE FOLLOWING. JUDGMENT
This appeal is filed by the accused challenging the judgment dated 18.4.2006 passed by the Additional Sessions Judge and the Presiding Officer, Fast Track Court-II, Hassan in S.C.No.25/2003 convicting the appellants for the offences under Sections 498-A read with Section 34 of IPC and sentencing them to undergo simple imprisonment for a period of 2 years and to pay a fine of Rs.1,000/- each and in default of payment of fine to undergo simple imprisonment for another 2 months.
2. It is the case of the prosecution that, the accused No.1 being the husband and accused No.2 being the mother-in-law of the deceased-Vimala, both of them had subjected the deceased to cruelty by their willful conduct which was of such a nature as is likely to drive her to commit suicide by asking her to bring money from her parental house and further harassed her both mentally and physically with a view to coerce her and her parents to meet illegal demand for money and therefore they are alleged to have committed the offence under Section 498-A of IPC. It is further the case of the prosecution that, on 20.11.2002, the said Vimala, wife of appellant No.1 committed suicide by consuming poison and appellant No.1 abetted the commission of suicide of Vimala by subjecting her to cruelty and harassment both mental and physical with a view to coerce her and her parents to meet their illegal demand for money, thereby, they are alleged to have committed the offence punishable under Section 306 of IPC.
3. In order to prove the case, the prosecution has examined in all 16 witnesses and got marked Ex.P- 1 to 19 and produced MOs 1 to 17. The defence of the accused was one of the total denial. However, by impugned judgment, the learned Sessions Judge was pleased to hold that, the prosecution has failed to establish the case against the accused for the offence punishable under Section 306 of IPC and further held that the prosecution was able to prove the offence under Section 498-A of IPC against both the accused and convicted the accused and sentenced them as mentioned herein above. It is this judgment of conviction, which is challenged by the appellants in this appeal.
4. The Sub-Inspection of police of Arsikere Rural Police Station received an information on 23.11.2002 from one Nandisha, who is the president of Haranahalli Grama Panchayat, stating that at about 12 noon on the said day when he was on his duty in the Grama Panchayat office, one person by name Chandraiah, who is the priest in the Kalleshwaraswamy Temple at Belawathalli Forest informed him that a dead body of an unknown women was found lying on a stone slab near his temple in the forest and, by the side of the dead body one bottle of poison and one bottle of Mirinda juice has fallen, the dead body contained rose coloured blouse and blue coloured saree and coffee coloured skirt, the age of the dead body would be around 20-25 years. Since there was a poison bottle lying by the side of the body, she would have committed suicide by being disgruntled in her life and hence, he has requested for suitable action in the matter.
5. PW-16-PSI of Rural Police Station, Arasikere on receipt of the said complaint, went to the scene of occurrence which was a stone slab near the Dodda Kalleshwaraswmay temple. Other witnesses were present at the spot. Chandraiah, priest of the temple was also summoned and thereafter, he has prepared inquest Mahazar as per Ex.P-12. He has also seized poison bottle, mirinda plastic bottle and also another powder bottle containing poison. He has further observed that there was one pair of earrings (ole), one nose stud, there was also a chain of two lines (karimani sara) in the neck which contained about 36 small gold like balls, there was one thaali, two hawala. PW-16 seized the articles found on the dead body and thereafter ordered the dead body to be carried to the hospital for post mortem examination. In the meantime, he has registered the case as UDR 19/2002.
6. On 23.11.2002 at about 10:45 p.m. PW-3 Shivappa, who is the father of the deceased on learning about the dead body of an unknown person went to the police station and filed a complaint before the said police station. It is stated in the said complaint that his daughter was given in marriage to one Manjunatha according to the Hindu customs. Two months after the marriage, the accused started beating her and abusing her and she was sent for bringing money from her parents house. He had given as much money as possible for pacifying him. Nevertheless, ill treatment was given to his daughter by his son-in-law, Manjunath and his mother-Lakshmamma. It is stated in the complaint that, for the last 7-8 times, his son-in-law and his mother were giving trouble to his daughter and in this connection he has convened a meeting of elders and accused was advised. One year after the marriage, his daughter delivered a male child and two months thereafter his daughter was forced to bring money from her parents house, otherwise, they had threatened that they will kill her. It is also stated that the accused were cruelly behaving with her and had assaulted his daughter by means of knife and tried to kill her. In this connection, the complaint was filed before the police and his daughter was admitted in the hospital and 4 months thereafter, his daughter became well. However their relatives joined together and decided that the husband and wife should live peacefully and hence, again joined his daughter and son-in-law together. It is stated in the complaint that even thereafter, the accused were pestering the deceased to bring new ear studs and in this connection, they had beaten her and hence they gave the new ear studs and sent her to her husband’s house. It is also mentioned in the complaint that Sub-Inspector of Police-PW-16 on receipt of the above complaint registered the same in Crime 164/2002 for offence punishable under Section 498-A and 306 r/w Section 34 of IPC and transmitted the FIR to the Jurisdictional Magistrate. PW-16 thereafter commenced the investigation and recorded the statement of the complainant and other relatives of the deceased and also collected photographs of the dead body which were taken on the date of tracing of the dead body. PW-16 thereafter arrested the accused and subjected them for judicial custody. After obtaining post mortem report and also FSL report in respect of the contents of viscera, filed charge sheet against the accused.
7. PW-1 is one Madappa, who has stated that he has seen the dead body on a stone slab near Kalleshwaraswamy temple in the Haranahalli Village and he had informed the same to the Village Panchayath.
8. PW-2-Chandraiah also has stated that on tracing the dead body in the forest, he went to the President of Grama Panchayat and informed him about the dead body.
9. PW-3 Shivappa is the father of the deceased. Though his evidence was recorded before the Court on 25.3.2004, the same was deferred for further examination. However, it was reported that before he could be subjected to the cross examination, he had expired and therefore, his evidence came to be eschewed.
10. PW-4-Lakshmamma is the mother of the deceased. She has stated in her evidence that her daughter Vimala was given in marriage to the accused No.1 and for about 2 months after the marriage both the husband and wife were cordially living. Thereafter, both accused Nos.1 and 2 were asking her daughter to bring one gold ring and also cash from her parent’s house and in this connection, they were giving ill treatment to her and deceased used to tell about this when she came to her house. Since they had no financial capacity to meet the said demands, they could not give the articles required by the accused. Her daughter became pregnant after 2-3 months after her marriage and hence they brought her to their house. When she was 6 months pregnant, the father of the accused came to her house and took Vimala to his house and while going he told the complainant that if they give a sum of Rs.8,000/-, they would send Vimala for delivery, if they don’t give the money, they would not send her. Thereafter, her daughter delivered a male child in Dr.Shivakumar Hospital in Hassan. Though, they requested for sending the daughter to their house, the accused informed that only if the demanded money is given, they would send the deceased to their house. Accused themselves took her to their house. It is in the evidence of PW-4 that 15 days after the delivery she had gone to the house of the accused, and at that time, Vimala was sleeping and she had sustained one injury on her chest. When questioned, Vimala informed her that her husband had stabbed on her chest and instructed her not to inform anyone. She had taken her daughter to the hospital of Hegde and got her treated. Since she was not cured, she was taken to another hospital and at that time, Vimala was in her house along with the child. It is stated by PW-4 that one year both her daughter and grand child were in her house and thereafter they sent Vimala to her husband’s house and again they started giving ill treatment to the deceased and forced her to bring Rs.10,000/- and in this connection, it was informed to her by the deceased that, her husband was demanding Rs.10,000/- and one gold ring to accused No.1. About 2 days thereafter, father of the accused No.1, Nanjundappa brought Vimala to her house and left there. On the next day morning, accused No.1 came to her house and took the child lying in the cradle and went away without informing anybody. Thereafter, complaint was filed before the police and through the intervention of the police, child was handed over to Vimala. It is in the evidence of PW-4 that even after one year from the said incident, accused never came to take her daughter back. Hence, herself and her husband took their daughter and grand child to the house of the accused and left her there. Thereafter, both accused and his mother were assaulting and ill treating her daughter. Three months thereafter, her husband was summoned to the police station through telephone of one Narayanappa and informed about the death of the deceased. In the cross examination, it is elicited that whatever has been mentioned in the evidence has not been informed by her to the police and all the omissions in her evidence has been elicited from the mouth of PW-
4. In particular it is elicited that the fact of demand of Rs.8,000/- at the time of delivery of the deceased and also the fact of accused taking the child from the cradle is not mentioned by her in the statement before the police but the said suggestion has been denied by PW-4.
11. PW-5-Narayanappa is the neighbour of PW-4 and he has stated that accused were looking after the deceased well and later on he came to know from the father of the deceased that accused were ill treating the deceased in the house of the accused. In the cross examination, it is elicited that PW-5 is the relative of PWs-3 and 4. It is suggested that he has deposed falsely at the instance of the complainant.
12. PW-6-Moodlaiah is a member of the Panchayat who had advised the accused not to ill treat the deceased. He also stated before the Court that he was one of the members who had gone to the house of the accused along with one Papanna and Narayanappa in connection with the cruelty meted out to the deceased by the accused.
13. PW-7-T.P.Eraiah was the ASI of Rural Police Station, Arasikere,. He has stated that on 28.8.2001 at about 10:30 p.m. when he was incharge of the station, Vimala had come with a written complaint alleging the ill treatment and harassment by her husband. The complaint is marked as Ex.P-6. He had issued a receipt for the same.
14. PW-8-Nandisha is the complainant in UDR case. PW-9 is the Constable, who had carried the materials of the deceased to FSL, Bangalore. PW-10 is the photographer. PW-11-Altaf Pasha is the signatory to Ex.P-12 inquest mahazar conducted on the dead body of Vimala. PW-12-Dharmaraja has been examined in support of the prosecution regarding ill treatment and harassment given to the deceased. PW-13 is the signatory to Ex.P-12 inquest mahazar conducted on the dead body of Vimala. PW-14 is the medical Officer of Primary Health Care Hospital who conducted post mortem on the dead body of the deceased and opined that the death of the deceased is on account of consumption of organo phosphorous substance, which is a poison. PW-15 is the brother of the deceased. He has also deposed before the Court as per the version of PW-4, mother of the deceased. PW-16 is the Investigation Officer whose evidence has been discussed herein above.
15. It is from the above evidence of prosecution, the learned Sessions Judge has found accused guilty of the offence punishable under Section 498A of IPC and has further held that the prosecution has not proved the case for offence punishable under Section 306 of IPC.
16. Heard Sri.K.V.Narasimhan, learned counsel for the appellants and Sri.G.M.Srinivasa Reddy, HCGP for the State.
17. The learned counsel for the appellants submits that the fact that, the deceased had committed suicide by consuming poison is not disputed. But however, so far as ill treatment and harassment is concerned, except evidence of PW-4 and 15, there are no other witnesses to state that the deceased was subjected to harassment and ill treatment in the house of her husband. The evidence tendered by PW-4 before the Court is an improved version from her statement to the police and it has been proved by the evidence of PW- 16 that she has not stated regarding the demand of Rs.8,000/- by the accused for conducting delivery of the deceased in their house. It is also submitted by him that other evidence of PW-4 is also not supported by any other independent witness on record. So far as PW-15 is concerned, he has clearly stated that he was working in Mangalore and all that he has heard is from the mouth of PW-4 and he is not a direct witness for the alleged ill treatment or harassment caused to the deceased. Under the circumstances, he submits that order of conviction passed against the appellants is erroneous and appeal may be allowed and accused may be acquitted.
18. Sri.G.M.Srinivasa Reddy, learned counsel for the State on the other hand submits that, the evidenceof PW-4 mother of the deceased is further corroborated by the averments in Ex.P-17-complaint, which is given by the father of the deceased, unfortunately though he appeared before the Court and led evidence in chief, did not remain alive for cross examination. Further, he contends that Ex.P-17 being a complaint is admissible in so far as ill treatment meted out to Vimala is concerned. He further submits that the evidence of PW- 15, who is the brother of the deceased also corroborates the evidence of PW-4 and the contents of the complaint. It is further submitted by him that marriage of deceased Vimala took place in March 2000 and she died on 20.11.2002 i.e., within 2 years from the date of her marriage and hence it is clear that the death of the deceased is not natural. He further submits that the evidence of PWs-5 and 6 also corroborates the evidence of PW-4. PW-6 is not the relative, but an independent witness, who states that the deceased was ill treated in the house of accused. Therefore, the learned Sessions Judge has rightly convicted the accused for the offence punishable under Section 498-A of IPC and therefore, he submits that, the said judgment of conviction is based on the evidence on record. Therefore the appeal may be dismissed.
19. I have carefully gone through the evidence on record. Ex.P-6 is the complaint given by the deceased herself when she was alive. In the said complaint she has stated that the accused namely her husband and mother-in-law were quarrelling with her on the ground that she was not doing the household work. After 7 months from marriage, she had gone for delivery, but within one month, her husband came to call her and then she told that she will not come. For the next Gowri festival, her father-in-law Nanjundappa took her to her parental house. In this connection, accused No.1 had quarreled with his parents. It is mentioned in the complaint that one morning her husband came to her parents’ house and asked her to come along with him for which she replied that only when her parents send her, she will come. For which the accused No.1 quarreled and assaulted her with hands and caused pain to her. Hence she has requested for taking action against her husband and requested the police to direct her husband to take care of her properly. This complaint has been proved to have been given from the evidence of PW-7-Eraiah. Apart from Ex.P-6, there are no other materials except oral evidence of mother and brother of the deceased. However, the evidence of PW-6- Moodlaiah indicates that he also came to know that the husband is assaulting his wife that is the deceased and the deceased had informed the same to her father and her father in turn had informed to PW-6. Therefore, the evidence of PW-6 is an hearsay evidence as he has not directly witnessed the deceased being harassed by the accused. Apart from that there is evidence of PW-5 who has also stated that Shivanna father of the deceased was informing him about the plight of the deceased. Hence, the evidence of PW-5 is also a hearsay evidence and he has also not directly witnessed the ill treatment caused to the deceased. On careful scrutiny of the complaint of the deceased as per Ex.P-6, it could be seen that the incidents narrated are nothing but the daily chores of every family and that there is nothing which would attract the definition of willful conduct as defined under Section 498-A of IPC.
20. Under the circumstances, I am of the opinion that Ex.P-6 does not implicate the accused of the offence of cruelty mentioned under Section 498-A of IPC. So far as demand for cash or gold is concerned, there is little evidence in the deposition of PW-4 and 15. The said demand has resulted in the commission of suicide by the deceased. Appellant No.1 being the husband has elicited in the cross examination of PW-4- mother of the deceased that, after one year of delivery when Vimala was in her house she was always in the stage of dullness and was always cheerless in her life and she was also getting angry every now and then. However, they had not taken to any psychiatrist. This evidence of PW-4, who is none other than the mother of the deceased indicates that the mental status of the deceased was not stable and that there was every chance that she would have lost hopes in her life and would have thought that there is nothing more in her life and led her to commit suicide. Further, it is the case of the accused that the child born to accused No.1 and the deceased was always in the house of the accused and that would have also resulted in mental instability of the deceased which inturn might have been the cause for commission of suicide by the deceased. There is no evidence brought forthwith by the prosecution as to what happened just prior to the commission of suicide by the deceased. In that view though it could be suspected that the deceased died due to behaviour of the accused, suspicion alone, however grave, can never take the place of proof that the accused is the cause for death of the deceased. The evidence adduced by the prosecution falls short of proof regarding ill treatment or harassment and therefore, the appellant is entitled for benefit of doubt.
21. In the result, following order is passed:-
a) The appeal is allowed. b) The order of conviction and sentence passed by Additional Sessions Judge and the Presiding Officer, Fast Track Court-II, Hassan in S.C.No.25/2003 against the appellants is hereby set aside.
c) Appellants are acquitted of the charges levelled against them.
d) Bail bonds are discharged
e) Fine amount, if any, deposited shall be refunded to them.