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2013 DIGILAW 940 (KAR)

YOGANANDA v. STATE OF KARNATAKA

2013-08-19

B.V.PINTO

body2013
JUDGMENT B.V. PINTO, J.-This appeal is filed challenging the judgment dt:27.04.2006 passed by the Sessions Judge, Davanagere in SC No. 121/2005 convicting the appellant for the offences punishable under Sections 498A and 306 read with Section 34 IPC and sentencing each of them to undergo R.I for two years and to pay fine of Rs. 5,000/- for the offence punishable under Section 498A of IPC and to undergo R.I for six years and to pay fine of Rs. 10,000/- for the offence punishable under Section 306 of IPC with a direction to pay compensation to PW1-mother of the deceased. 2. It is the case of the prosecution that deceased was wife of the first accused. Marriage of the deceased with Accused No. 1 took place on 20.05.1990 and out of the wedlock two children were born. PW3 is the son of the deceased and accused No. 1. It is the further case of the prosecution that during the life time of the deceased, since she was not well the accused No. 1 had married accused No. 2 and after the arrival of the accused No. 2 to the house of accused No. 1, they have ill treated the deceased and subjected her to cruelty both physically and mentally, so as to drive her to commit suicide and thereby they are alleged to have committed offences under Sections 498A read with Section 34 of IPC. It is the further case of the prosecution that being unable to tolerate the cruelty and harassment meted out by accused Nos. 1 and 2, deceased committed suicide on 01.07.2005 at about 5.00 p.m., in their residence in Rajendra Prasad Road, Jagalur Town by consuming poison and that the accused have abetted the commission of such suicide and therefore, they are liable for committing offences punishable under Section 306 Section 34 IPC. 3. The prosecution in order to prove the case has examined in all 15 witnesses and got marked Exs.P1 to P18. The defence of the accused was one of total denial. 4. It is the case of the accused No. 1 that the deceased was suffering from heart ailment and that she was being treated in the hospital. Since her condition was aggravated, when nobody was in the house, deceased consumed insecticide and succumbed to the consumption of poison. The defence of the accused was one of total denial. 4. It is the case of the accused No. 1 that the deceased was suffering from heart ailment and that she was being treated in the hospital. Since her condition was aggravated, when nobody was in the house, deceased consumed insecticide and succumbed to the consumption of poison. The Trial Court after hearing the prosecution and the defence found the accused guilty of the offences punishable under Sections 498A and 306 IPC and sentenced them as aforesaid. Being aggrieved by the said order of conviction and sentence the accused have filed this appeal. 5. Heard Smt. T.R. Rajeshwari, learned counsel appearing for the appellant and Sri. Satish R. Girji, the learned High Court Government Pleader for the State. 6. The learned counsel for appellant submits that it is the admitted case of the prosecution that the deceased was suffering from ill-health and that the marriage of the second appellant and the first appellant took place in the presence of the deceased. The evidence of prosecution witnesses indicates that it is the deceased herself who was the cause for the marriage of the second appellant with the first appellant and that she has taken care of the first child of accused No. 2 in the house itself. It is the further case of the prosecution itself that both the deceased and accused No. 2 were living cordially alongwith accused No. 1 in the matrimonial house. It is also the case of the prosecution that the deceased was having severe ailment and that being unable to tolerate the said ailment she has committed suicide. Hence, she submits that the learned Sessions Judge has erroneously convicted the accused and prays that the appeal may be allowed. 7. Sri. Satish R. Girji, learned High Court Government Pleader on the other hand submits that from the fact that accused No. 2 has married accused No. 1 during the life time of and in the presence of the deceased itself indicates that the deceased was meted with enormous mental cruelty and that evidence of PW1 Lakshmidevi-mother of the deceased and PW5 Ramanna and other witnesses clearly indicates that the deceased was subjected to ill-treatment and harassment during her life time and therefore, the offence punishable under Section 498A is clearly attracted. It is the established that the deceased has consumed poison and committed suicide in the house of the appellant, which clearly establishes that the appellants are the cause of the death of the deceased and therefore, they have committed an offence punishable under Section 306 of IPC. He further submitted that the learned Sessions Judge has carefully considered the materials on record and has come to the conclusion that the appellants have committed the offences punishable under Sections 498A and 306 of IPC and that there is no material to disbelieve the version of the witnesses, more particularly PWs. 1, 4 and 5 and hence, he submits that the appeal may be dismissed. 8. The prosecution in this case commenced with filing of a complaint by the mother of the deceased namely Lakshmidevi on 02.07.2005 at about 10.30 a.m., before the Jagalur police station, Davanagere District. In the said complaint, the complainant has stated that she has got six female children and one son and that her second daughter Anasuyamma was given in marriage to the first accused Yogananda about 12 years prior to the date of incident. She has begotten one son and one daughter and they were living cordially. About six years prior to the giving of complaint the behaviour of accused No. 1 was changed and he was quarrelling with the deceased and the deceased was informing her about this fact. She was also coming to her maternal house and was informing about the ill treatment given by accused No. 1. It is also stated that about 4 years earlier to the date of giving complaint, the accused No. 1 had brought accused No. 2 to the house and had kept her in the house and subsequent to the said incident both the accused Nos. 1 and 2 were ill treating her daughter-the deceased Anasuyamma. Though the deceased had tolerated harassment for some time, she committed suicide on the previous day at about 6.45 p.m., Hence she prays for action. The Jagalur police on receipt of above complaint registered the case in Crime No. 140/2005 for committing the offences punishable under Sections 498A, 306 read with Section 34 of IPC., and commenced investigation. On completion of investigation, charge sheet came to be filed for the offences punishable under Sections 498A and 306 IPC. 9. During the trial, the complainant has been examined as PW1. On completion of investigation, charge sheet came to be filed for the offences punishable under Sections 498A and 306 IPC. 9. During the trial, the complainant has been examined as PW1. She has reiterated the version found in the complaint. In the cross examination, it is admitted by her that the deceased was suffering from stomach ailment and that she has undergone an operation. It is also admitted by PW1 that there was some tumer in the lungs of the deceased and that she was suffering enormously for the said ailment. She has further admitted that one of the friend of accused No. 1 Purushothama had taken loan of Rs. 2.00 lakhs from her husband in the year 1992 and the said amount has not been returned as yet. It is further admitted by her that because of the non-payment of said money even after holding of a Panchayath, she was angry on accused No. 1. It is suggested to her that due to the enormous pain and sufferings to the deceased, she has committed suicide, which suggestion has been denied by PW1. 10. PW3 Gnyanapriya is the son of deceased No. 1 and accused No. 1. He has stated that his mother has died by consuming poison due to the operation to her lungs. He has turned hostile to the case of the prosecution. 11. PWs.5, 11, 12 and 13 have also not supported the case of the prosecution. 12. PW4 Sunitha is the sister of the deceased whose version is similar to PW1. It is her version that even when the deceased was alive, accused No. 1 had married accused No. 2 and all the three of them were living together in one house in Jagalur. It is stated that there was quarrel between the accused and the deceased in the house. It is further admitted by her that the deceased had consumed sleeping tablets at some occasion and at that time they had pacified the deceased. 13. PW6 Srinivasalu is the friend of PW1. However he is not a witness to the living of the deceased with the accused. 14. PW7 Krishnamurthy has stated that he has given a statement to the police about the death of the deceased. 15. PW8 Sreenivasa who is a relative has stated that the deceased had informed him that accused No. 1 brought another woman to the house. 16. PW9 Dr. 14. PW7 Krishnamurthy has stated that he has given a statement to the police about the death of the deceased. 15. PW8 Sreenivasa who is a relative has stated that the deceased had informed him that accused No. 1 brought another woman to the house. 16. PW9 Dr. Shankarappa has stated that he has conducted Postmortem examination on the dead body of the deceased Anasuyamma. He has stated that the death of the deceased is due to consumption of poison. Ex.P9 is the opinion given by PW9. 17. PW14 N. Rudramuni is the Head Constable who has received the intimation regarding the admission of the deceased in the hospital as per Ex.P7. 18. PW15 R. P. Anil is the police officer who has conducted investigation and has filed the charge sheet. 19. On a careful consideration of the above materials on record, it is clearly observed that the deceased herself was present at the time of marriage of accused No. 1 with accused No. 2. It is admitted by the witnesses that deceased was not only living with Accused Nos. 1 and 2 together cordially in the house but she has also attended to the delivery of the accused No. 2 in the house of the accused No. 1. It is also an admitted fact that the deceased was suffering from some ailment of chest and a cyst was found in her lungs for which she had undergone operation. From the evidence of prosecution witnesses it is not clear that neither accused No. 1 nor accused No. 2 nor both together have either instigated or assisted or conspired in suicide of the deceased. Evidence of doctor clearly indicates that the deceased had consumed poison. Under the circumstances, it is possible that the deceased would have committed suicide being unable to bear the enormous pain suffered by her due to the operation of her lungs. 20. PW3 is none other than the son of the deceased who has given a go bye to the prosecution case and has stated that his mother has died due to operation of the lungs. In that view of the matter, it is possible that deceased would have died being unable to tolerate the pain undergone by her due to the operation. 21. In that view of the matter, it is possible that deceased would have died being unable to tolerate the pain undergone by her due to the operation. 21. It is the settled principle of criminal jurisprudence that if two views are possible, then the view that is favourable to the accused is given effect. In this case the deceased would have committed suicide being unable to tolerate the pain undergone by her subsequent to the operation to her chest. There is no clear cut evidence to show that there was ill treatment and harassment in the house of accused Nos. 1 and 2 just prior to the committal of suicide by the deceased. On the other hand the deceased had taken care of accused No. 2. If at all there was an ill-treatment and harassment she would have given complaint immediately after the marriage of accused No. 1 with accused No. 2. Hence, I am of the clear opinion that the findings of the learned Trial Judge regarding offence under Section 306 IPC is not based on the materials on record and the same is liable to be reversed. So far as the offence under Section 498A is concerned, there is absolutely no material to support the prosecution case and on the other hand PW1 herself has stated that after the marriage on 20.05.1990, deceased lived with accused No. 1 peacefully and begotten two children and they are grown up. Under these circumstances, there is no material to hold that the accused have committed the offence punishable under Section 498A of IPC also. 22. In that view of the matter, I am of the opinion that the learned Sessions Judge erroneously convicted the accused. Accused are entitled for an order of acquittal and accordingly, the appeal is allowed and order of conviction for the offences punishable under Sections 498A and 306 read with Section 34 of IPC is hereby set-aside and they are acquitted of the offences for which they stood charged. Bail bond executed by them if any is hereby discharged. Fine amount if deposited shall be refunded to them. Accordingly, the appeal is allowed.