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2011 DIGILAW 345 (KAR)

Eswarachari @ Eshanna v. State of Karnataka

2011-03-25

B.V.PINTO

body2011
JUDGMENT B.V. PINTO, J.—This appeal is filed by the accused challenging the judgment dated 10.6.2004 passed by the Fast Track Court-1, Tumkur in S.C. No. 13/1999 in which the appellant has been convicted for the offences punishable under Sections 498A and 306 IPC and sentenced to undergo R.I. for a period of 3 years and to pay a fine of Rs. 500 for the offence punishable under Section 498A IPC and further sentenced him to undergo R.I. for 3 years and to pay a fine of Rs. 1,000/- for the offence punishable under Section 306 IPC with default, clauses. 2. The case of the prosecution is that the appellant being the husband of the deceased Yashodarnma was harassing and ill-treating the deceased and committing physical and mental cruelty under the influence of alcohol and being unable to tolerate the said ill-treatment and harassment, Smt. Yashodarnma committed suicide on 17.7.1998 at 4 p.m., in her bathroom and that the accused has abetted the said commission of suicide by his wife thereby, he is alleged to have committed offences under Sections 498A and 306 IPC. 3. In order to prove the case, prosecution has examined in all 17 witnesses P.Ws. 1 to 17 and got marked Exs. P1 to P11 and produced M.Os. 1 and 2. 4. The defence of the accused was one of total denial. However, after hearing the prosecution and the defence the learned Sessions Judge was pleased to convict the accused and sentenced him as aforesaid. The convicted accused has filed this appeal. 5. Heard Sri Veerabhadraiah, learned Counsel for the appellant and Sri Vijaya Kumar Majage, learned HCGP for the respondent State. 6. Learned counsel for the appellant, submits that there is no independent evidence in this ease to hold that the accused has meted out any ill-treatment or harassment to the deceased and that the death of the deceased is result of any instigation of the accused. Hence, he submits that, order of conviction is not supported by cogent evidence and prays that the accused may be acquitted. 7. Learned HCGP supports the judgment of conviction passed by the trial Court. 8. The proceedings in this case commenced with filing of the complaint, before the police by one Basavachari, who is the father of the deceased Yashodamma. Hence, he submits that, order of conviction is not supported by cogent evidence and prays that the accused may be acquitted. 7. Learned HCGP supports the judgment of conviction passed by the trial Court. 8. The proceedings in this case commenced with filing of the complaint, before the police by one Basavachari, who is the father of the deceased Yashodamma. It is stated in the complaint that his daughter Yashodamma was given in marriage to the accused Eshwarachari and that she lived with her husband for 14 years and has begotten 2 male children. On 18.7.1998, at about 11 a.m., one son of Rangappa Chari came and informed him that his daughter Yashodamma has poured kerosene on herself and has died and accordingly, he went to the house of his daughter and found that his daughter has committed suicide by setting herself on fire. It is stated by him that his daughter was being ill-treated by the accused for few years from now, by drinking alcohol, by abusing and assaulting his daughter. His daughter informed him about the said ill-treatment by the husband. It is further stated by the complainant, that, accused was telling his wife, since she was not knowing to work, he will marry again. In this connection, his daughter was aggrieved and unable to tolerate such mental harassment, and physical assault she has committed suicide and he has prayed for suitable action. The concerned police registered the said complaint, in crime No. 26/1998 on 19.7.1998, for the offences punishable under Sections 498A and 306 IPC and commenced investigation. After completion of the investigation charge sheet came to be filed for the said offence. 9. Complainant could not be examined before the Court since, he had died before recording his evidence. P.W. 1 Chandrappa, P.Ws. 4, 5, 6 and 7 have turned hostile to the case of the prosecution. P.W. 2 is the signatory to Ex. P1 inquest proceedings, P.W. 3 is the mother of the deceased Yashodamma, she has stated that on receipt of the information of the death of her daughter, she came and saw that her daughter has set herself on fire by pouring kerosene. P.W. 2 is the signatory to Ex. P1 inquest proceedings, P.W. 3 is the mother of the deceased Yashodamma, she has stated that on receipt of the information of the death of her daughter, she came and saw that her daughter has set herself on fire by pouring kerosene. However, she has stated that she does not know whether the accused was addicted to any bad habits but from the date of the marriage itself, the relationship between the accused and the deceased was not cordial and he used to assault his wife and they were advising him not to do so. P.W. 8 is a police constable, who has kept a watch on the dead body till the conduct of inquest and thereafter handed over the dead body to the relatives. P.W. 9 is the Inspector of Police who has conducted the investigation in this case and has filed the charge sheet. P.W. 10 is the doctor who has conducted post mortem examination on the dead body of the deceased and has opined that the death is due to shock as a result of severe burns P.Ws. 11 to 12 and 15 are the sisters of the deceased. P.Ws. 13 and 14 are the sons of the deceased, P.W. 16 is a relative of the deceased. All these witnesses have stated that, the accused was ill-treating his wife by coming home in a drinking state. Even P.Ws. 13 and 14 being the sons of the deceased have stated that their father was quarreling with their mother and that he was telling that he would marry another girl. P.W. 17 is Co-brother of the accused. He has also stated that accused was quarrelling with the deceased and he was addicted to drinks. He has further stated that Yashodamma died in the house of her husband. 10. It is from the evidence of these witnesses, the learned Sessions Judge has found the accused guilty and convicted him and sentenced him as aforesaid. 11. On a careful re-consideration of the entire materials on record, it is seen that except a general statement that the accused was fighting with his wife, no specific allegations with reference to place, date and time are mentioned either in the complaint or evidence before the Court. All the witnesses are near relatives of the deceased and the accused. 11. On a careful re-consideration of the entire materials on record, it is seen that except a general statement that the accused was fighting with his wife, no specific allegations with reference to place, date and time are mentioned either in the complaint or evidence before the Court. All the witnesses are near relatives of the deceased and the accused. There is no specific overt act alleged against the accused. Under the circumstances, I am of the opinion, that no conviction can be passed on vague and ambiguous statement of witnesses, which are of omnibus nature. The Section 306 IPC is attracted only when one person conspires or assists or instigates the other, in the commission of the suicide of the later. None of the ingredients of Section 306 IPC are made out from the entire materials on record. Therefore, I am of the opinion that, the accused cannot be convicted for the offence punishable under Section 306 IPC and he is entitled for an order of acquittal of the offence under Section 306 IPC. So far as the offence under Section 498A is concerned, it is the case of the prosecution that accused was in the habit of drinking and coming to the house, assaulting and ill-treating his wife. There is no material to show that there was any physical harm done to the deceased by the accused. However, the very fact that he was continuously harassing his wife, the word willful conduct is attracted to the behaviour of the accused. Accordingly, the evidence adduced by the prosecution proves that the accused has committed offence under Section 498A IPC. Both the sons of the accused have deposed against their father stating that their father used to quarrel with their mother always by drinking. The offence punishable under Section 498A IPC is committed within four walls of the house and it is too much to expect independent witnesses to come and speak before the Court. The evidence of P.Ws. 11 to 16 is sufficient to hold that the accused was giving physical and mental harassment to his wife by coming in a drunken state to the house and abusing every day. Under the circumstances, I hold that the prosecution has proved the case against the accused for an offence punishable under Section 498A IPC. 12. The evidence of P.Ws. 11 to 16 is sufficient to hold that the accused was giving physical and mental harassment to his wife by coming in a drunken state to the house and abusing every day. Under the circumstances, I hold that the prosecution has proved the case against the accused for an offence punishable under Section 498A IPC. 12. So far as the sentence for offence under Section 498A IPC is concerned, I am of the opinion that in view of the fact that accused lived with his wife for long 14 years and that the sons of the accused are of young age, now it is not in the interest of justice to send their father to custody. On the other hand, I deem it fit to impose a fine on the accused, which would meet the ends of justice. In the result, the following order is made: 1. The appeal, is allowed in part. 2. The order of conviction and sentence passed against the appellant under Section 306 A IPC is set aside and he is acquitted of the offence under Section 308 IPC. 3. The order of conviction passed against the appellant for the offence under Section 498A IPC is hereby confirmed. However, the sentence of imprisonment imposed on the appellant is set aside and he is directed to pay a fine of Rs. 3,000/- in default,, to suffer S.I. for a period of 6 months. The accused is directed, to deposit the balance of fine amount within a period of 2 months from today, failing which, the trial Court is directed to execute the sentence as modified by this Order. The bail bond executed by the appellant is cancelled.