IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE, BENGALURU CITY Dated this the 9th day of July 2018 Present: Sri S.Nataraj, B.A.L., L L.B., Chief Metropolitan Magistrate, Bengaluru C.C. No.8209/2012 Complainant : State by Amruthahalli Police, Bengaluru City (By Sr. APP) -V/s- Accused : Devaraju s/o Jayaraman 45 yrs, R/at No.85, 10th Cross, 6th Main, Coffee Board Layout, Kempapura, Bengaluru. (By Sri.M.Manjunatha, N.Deepak - Advocate) Date of offence : After marriage during December 1992 and on 02-08-2011 2 CC No.8209/2012 Offences : U/S 498(A), 506 of IPC Plea of the accused : Accused Pleaded not guilty Final order : Accused convicted for an offence punishable under Section 323 IPC Date of Judgment : 09-07-2018 J U D G M E N T U/S 355 of Cr.P.C. The Police Sub-Inspector of Amruthahalli Police Station has filed this charge sheet against accused for the offences punishable under Section 498(A), 506 of IPC. 2. The case of prosecution in brief is that- In the year 1992 the marriage of CW1 Indira was solemnized with accused and led matrimonial life with accused at No.85, 10th Cross, 6th Main, Coffee Board Layout, Kempapura, Bengaluru and had four children from their wed-lock. At that time, the accused used to raise quarrels on trivial issues and harass, torture, abuse 3 CC No.8209/2012 her and subjected to her both physical, mental cruelty. Due to his torture, CW1 started to reside separately along with her children. That being so, when CW1 came to know that the accused had sold the site and on 02-08-2011
at 10-00 p.m. she went to the house of accused to enquire the same, he picked up quarrel, bitten on her left hand and caused injury and also threatened with dire consequences of life of CW1 and her children. Thereby the accused committed the aforesaid offences.
3. Accused is in Judicial Custody. Thereafter, Charges for the offences punishable under Section 498(A), 506 and 324 IPC was framed, read over and explained in the language known to him. The accused pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case has examined in all six witnesses as PW1 to 6, got marked the documents as Ex.P1 to 4. Thereafter, the accused is examined under Section 313 of Cr.P.C. He denied the incriminating evidence, which appeared against him and not opted to adduce defence evidence.
5. Heard arguments on both sides and perused the documents.
6. The points that arise for my consideration are-
1) Whether the prosecution proves beyond all reasonable doubt that the accused being husband of PW1 Indira, ill treated, harassed her with such a cruelty, which are sufficient to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mentally or physically) and thereby committed an offence punishable under Section 498(A) of IPC?
2) Whether the prosecution further proves beyond all reasonable doubt that the accused threatened PW1 and her children with dire consequences of life and thereby committed an offence punishable under Section 506 of IPC?
3) Whether the prosecution further proves beyond all reasonable doubt that the accused voluntarily caused injury to PW1 by biting on her left hand and thereby committed an offence punishable under Section 324 IPC?
4) What order?
7. My answer to the above points are as under.
Point No-1 & 2: In the Negative Point No-3: Partly in the Affirmative Point No-4: As per final order REASONS Point No-1 to 3:
8. As all these points are interconnected, they are taken up together to avoid repetition of discussion. According to the prosecution, the complainant’s marriage was solemnized with accused in the year 1992, thereafter they were residing at Kempapura, Bengaluru. At that time, the accused ill treated the complainant, harassed and subjected her to cruelty with an intention to drive her to commit suicide or cause grave injury or danger to life, limb or health, caused teeth bite injury and threatened complainant, her children with dire consequences of life.
9. The learned Sr.APP argued that the evidence of witnesses are corroborating with each other. In the cross-examination of these witnesses, nothing is elicited. Their veracity is not doubted and hence prayed to convict the accused for the alleged offences.
10. The learned counsel for accused argued that the complainant had lodged false complaint. There was no ill treatment or harassment as alleged by complainant in the complaint and her evidence. The admissions in cross-examination would falsify the case of prosecution. There are no materials to hold that the accused ill treated and harassed the complainant or treated with cruelty, so as to drive her to commit suicide or cause grave injury or danger to her life, limb or health and not caused any teeth bite injury. The accused had not neglected the complainant and children, he had bared the education expenses of his children and also not criminally intimated as alleged and hence prayed for acquittal of the accused.
11. On careful consideration of submissions of Sr.APP and counsel for accused, I have carefully perused the material on record. The Hon’ble Supreme Court in (2002) 5 SCC 177 in the case of Giridhar Shankar Tawade V/s State of Maharashtra, has considered the scope and purport of Section 498(A) IPC and held as under-
“The basic purport of statutory provision is to avoid ‘cruelty’ which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascertain a meaning to the word ‘cruelty’ as is expressed by the legislature: whereas explanation (a) involves three specific situations viz.,
(i) to drive the woman to commit suicide, or
(ii) to cause grave injury, or
(iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embarrass the attributes of cruelty in terms of Section 498(A) IPC”
In the decision cited by the accused in 2017 (4) AKR 18 Gangaraju and Others V/s State, para 9 of the judgment is extracted as follows-
“9. The Trial Court after appreciation of the evidence has held that, there is no proof to attract Section 498-A of IPC Explanation sub-clause (a), the prosecution has to prove the wilful conduct of accused persons which is of such nature as is likely to drive a woman to commit suicide or cause grave injury or danger to life, limb or health. Therefore, it is not a mere conduct of the accused, which can satisfy the Court to convict the accused. It is wilful mis-conduct of the accused that means the accused must have intentionally and wilfully conducted themselves with clear intention that woman should commit suicide or she should cause grave injury or danger to life, limb or health. Therefore, something more has to be proved before this Court other than the mere conduct of accused, to establish their intention and willfulness in conducting themselves”
Therefore, from the above said judgments, the prosecution has to prove its case in terms of provisions under Section 498(A) of IPC and principles enumerated in the above said decisions.
12. The prosecution to prove its case examined the complainant Indira as PW1. In her examination she has reiterated the complaint averments and identified the complaint at Ex.P1 and Mahazar at Ex.P2. It is an admitted fact that the accused and complainant are husband and wife, after marriage they led marital life in the house of accused and from their wed-lock four children were born.
13. PW1 Indira in her evidence in chief deposed that after marriage they were residing at Kempapura, 5- 6 years prior to lodging of complaint, the accused had made galata with her, he was not paying school fees of the children and sold the site standing in her name. When she asked, the accused bitten her with teeth and threatened with dire consequences of life. She lodged complaint as per Ex.P1 and the police conducted mahazar as per Ex.P2. Ex.P4 is the wound certificate, wherein the same would disclose that the complainant sustained contusion over left arm 4 x 5 cm, which is simple in nature stated to have been caused on 02-08- 2011.
14. PW2 Ponmani is the son of accused and PW1. He deposed that the accused was not looking after his mother properly, the accused used to quarrel, not paying school fees and not providing the household articles. About 4-5 years back, the accused went out of the house and sold the site standing in the name of accused. During August 2008, when his mother asked the accused about sale of site, he had bitten on her left hand, assaulted his sister with chapathi making roller and his brother with hot iron box and his mother took treatment at Yelahanka Government Hospital.
15. PW3 Kanmani is the daughter of accused and PW1. She deposed that the accused was not looking after her mother properly, he used to harass her and had sold the site. When her mother enquired the same, on 02-08-2011 at 10.00 p.m., the accused bitten her mother on her left hand, assaulted her with chapathi making roller and her brother was assaulted with hot iron box.
16. PW6 Uday is the spot mahazar witness. He deposed regarding drawing of Ex.P2 mahazar by police in respect of harassment by accused to the complainant. PW4 Puttaraju and PW5 Veeranna are the Police Personnel, who deposed in detail about their role played in the investigation of case.
17. In this case, PW1 to 3 are the main witnesses, who are mother and children. In the complaint at Ex.P1 and in the evidence of PW1, she deposed that the accused used to assault her, he was not paying school fees, he had sold the site and when she asked, the accused had bitten on her left hand. Except the incident of biting on the hand of PW1, no other specific instances of harassment or cruelty is deposed.
18. According to complaint, PW1 went to the house of accused along with PW3. In the complaint there is no reference that her son had also accompanied her, the accused assaulted PW3 with chapathi making roller and hot iron box to her son. PW1 in her evidence also has not stated about the said fact. On the other hand, PW2 and 3 deposed contrary to the evidence of PW1 that the accused assaulted PW3 and her brother. That apart there is no medical evidence that on 02-08- 2011, the accused assaulted PW3 with roller and hot iron box to her brother. There are no specific circumstances of alleged harassment and cruelty to the complainant by accused. There is no material on record that because of alleged cruelty and harassment, panchayath was held prior to complaint. The evidence of independent witnesses, muchless neighbourers about the alleged harassment and cruelty is not on record. Except the incident dated 02-08-2011, there is no material to draw any inference that the conduct of accused was to drive the complainant to commit suicide. No circumstances are there to probabalize the case of prosecution in respect of the offence of Section 498(A)IPC. The evidence on record is insufficient to hold that the accused intentionally and willfully harassed the complainant to commit suicide or she should cause grave injury or danger to life, limb or health.
19. Further, the case of prosecution is that the accused threatened PW1 and children with dire consequences of life. But the evidence of PW1 does not disclose about the alleged criminal intimidation. Though PW2 and 3 deposed about the alleged criminal intimidation, the same is not supported by complainant in her evidence. Therefore, it cannot be said at any stretch of imagination that the conduct of accused as deposed by PW1 to 3 is sufficient to draw an inference of the guilt of accused for the offences under Section 498(A) and 506 of IPC.
20. In respect of the charges against accused under Section 324 IPC, it is the allegation of prosecution that the accused bitten on the left hand of PW1. As already discussed, PW1 to 3 have spoken about biting by accused on the left hand of PW1. The wound certificate at Ex.P4 disclose the injury caused by accused as per the history. CW7 Dr. B.A.Nagamohan, who treated PW1 and issued Ex.P4 is not been examined by prosecution. Nevertheless the oral evidence of PW1 to 3 inspires confidence of the court that PW1 had sustained teeth bite injury. It is to be noted here that in the cross- examination of PW1 to 3, the injury sustained by complainant is disputed. But in the cross-examination of PW1, a suggestion was made that on 02-08-2011 at 10.00 p.m., the complainant had visited the house of accused. According to PW1 and prosecution when PW1 visited the house of accused to question about sale of site, the accused bitten the complainant. It is not elicited, if not the complainant sustained teeth bite injury by accused, then how she had sustained it. It is also not the suggestion of accused that PW1 herself had self inflicted the injury. Therefore, the only inference would point towards accused that he had caused bite injury to the complainant.
21. Now the question for consideration is whether the teeth is a dangerous weapon, so as to fall within Section 324 or 326 of IPC. Though many of the Hon’ble High Courts held that teeth is also a dangerous weapon to fall under Section 324 or 326 of IPC, the Hon’ble Supreme Court in its judgment concluded the matter beyond doubt. It has clearly taken a view that the human teeth cannot be treated as a dangerous weapon. In (2004) 10 SCC 103 – Shakeel Ahmed V/s State, Delhi, the Hon’ble Supreme Court held as follows-
But the allegation is that the assailant had bitten the index finger and caused the said injury. Teeth of a human being cannot be considered as deadly weapon as per the description of deadly weapon enumerated under Section 326 IPC. Hence the offence cannot escalate to Section 326 IPC. It can best remain only at Section 325 IPC. We, therefore, alter the conviction to Section 325 IPC read with Section 34 IPC”
22. In view of the judgment of Hon’ble Supreme Court, the court can say with certainty that a human tooth cannot be considered as instrument falling within the ambit of dangerous weapon. Therefore, if the hurt is caused by human tooth, it cannot attract Section 324 IPC, but will remain in the confines of hurt envisaged in Section 323 IPC. Hence, the prosecution proved its case to that extent and the accused has to be convicted for the offence under Section 323 IPC. In the result, I answer Point No-1 and 2 in the Negative and Point No-3 Partly in the Affirmative.
23. In view of my finding to Point No-1 to 3 as above, I proceed to pass the following:
(Dictated to the Stenographer on Computer. The computerized print out taken by steno is revised, corrected and then pronounced by me in the Open Court on this day i.e., 09-07- 2018) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
09-07-2018 Orders on Sentence Heard regarding sentence.
The Sr.APP submitted that the offence is committed against woman and hence maximum punishment may be imposed for the offence proved.
The learned counsel for accused submitted that the accused has not committed any offence, he is suffering from various ailments and that lenient view may be taken while sentencing the accused.
On consideration of contentions of both sides, I have gone through the prosecution records. Herein, the accused is found guilty of the offence punishable under Section 323 IPC and the same is punishable with imprisonment for one year, or fine of Rs.1,000/- or both. The accused is acquitted of the offences under Section 498(A) and 506 of IPC.
On considering the imprisonment prescribed for the offence under Section 323 of IPC, the manner in which the accused taken advantage that PW1 being his wife is a woman when came to his house at 10.00 p.m. had picked up quarrel, bitten on her left hand and caused hurt, it is not proper and fit case to extend the benefit of provisions of Probation of Offenders Act.
Hence, considering the nature of offence and circumstances of the case, it is proper to impose four months simple imprisonment and fine of Rs.1,000/- for the offence under Section 323 IPC. In the result, I proceed to pass the following.
ORDER For the offence under Section 323 of IPC, the accused – Devaraju is sentenced to undergo simple imprisonment for a period of four months and pay a fine of Rs.1,000/-
in default he shall undergo simple imprisonment for 15 days.
However, the accused is entitled for set off of the period of detention already undergone by him, as per Section 428 of Cr.P.C.
Office to supply a free copy of judgment to the accused forthwith.
(Dictated to the Stenographer on Computer. The computerized print out taken by steno is revised, corrected and then pronounced by me in the Open Court on this day i.e., 09-07-2018) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
P.W.1 : Indira P.W.2 : Ponmani P.W.3 : Kanmani P.W.4 : Puttaraju P.W.5 : Veeranna P.W.6 : Uday
List of Documents marked on behalf of the prosecution:-
Ex.P.1 : Complaint Ex.P.2 : Mahazar Ex.P.3 : F.I.R. Ex.P.4 : Wound Certificate
List of Material objects produced:-
NIL List of Witnesses examined & documents marked on behalf of the defence:
NIL CMM, Bengaluru.