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2017 DIGILAW 630 (KAR)

Ranganath v. State of Karnataka

2017-03-21

B.A.PATIL

body2017
JUDGMENT : B.A. Patil, J. This appeal is preferred by the accused-appellant assailing judgment of conviction dated 29.09.2010 passed by Additional Sessions Judge, Raichur in SC No. 109/2009 where under accused was convicted for the offences punishable under Section 498-A and 306 of IPC. 2. The case of the prosecution in brief as per the complaint are that marriage of accused took place with deceased Smt. Nagamma during April, 2008. Thereafter, they led marital life at Ramathanal village. Thereafter, difference of opinion started between the accused and the deceased, accused started ill-treating and harassing the deceased on silly grounds saying that she does not know proper cooking and she was having an eye over other male members. It is further alleged that when accused was giving physical harassment, it was disclosed by the deceased to her mother, grandmother and secured them along with the mother of the accused, they advised the accused but it did not give fruitful result. It is further alleged that accused continued his mental and physical harassment, as such on 18.11.2008 at about 4:30 p.m. deceased consumed insecticide containing organo phosphorous element. By coming to know she was taken to primary health center Pothnal, but there she succumbed to death at about 6:00 p.m. On receipt of the information police obtained the complaint from the mother of the deceased and registered the case in Cr.No.149/2008. After investigation the charge sheet laid against the accused. 3. After filing the charge sheet the committal court on following the procedure laid down under Section 207 of Cr.P.C committed the case to the Sessions Court. The Sessions Court after taking the cognizance secured the accused, after hearing charge came to be framed. Since, accused denied the charges and claimed to be tried, as such the trial was fixed. 4. In order to prove the case, the prosecution in all examined P.Ws. 1 to 13 and got marked Ex.P-1 to 6 and also got marked M.O.1. After closure of the prosecution case, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting the incriminating materials as against the accused, which he denied and he has not led any evidence on his behalf. 5. Thereafter, on hearing the arguments of both the counsel, the impugned judgment came to be passed, where under accused was convicted for the offences punishable under Sections 498-A and 306. 5. Thereafter, on hearing the arguments of both the counsel, the impugned judgment came to be passed, where under accused was convicted for the offences punishable under Sections 498-A and 306. Assailing the said judgment and order, the accused is before this Court. 6. Heard the learned counsel for the appellant and the learned High Court Govt. Pleader on behalf of the State. 7. The learned counsel for the accused Sri. Sashidhar Gowda Kelur contended that even there is no sufficient legal evidence either under Section 498-A or 306 of IPC, the trial Court without proper appreciation has come to a wrong conclusion and has convicted the accused. He would further contended the alleged quarrel between the accused and the deceased is under the normal circumstances in every families, but the same has been magnified by the Court and has convicted the accused. He would further contend that only on the basis of interested testimony of related witnesses, the trial Court has convicted the accused without proper appreciation. He would further contend that there were contradictions in the evidence of witnesses, even the fidelity of the deceased was not suspected by the accused, but the trial Court has also taken into cognizance of the same and has convicted the accused. He would also contend that there is no iota of evidence to show that the accused abetted the deceased to commit suicide, in the absence of such material the Court below ought not to have convicted accused under Section 306 of IPC. He would also contend that the only evidence available is with reference to cruelty and the accused ought to have been convicted under Section 498-A of IPC. On these grounds, he prayed to set aside the judgment and order of conviction by allowing the appeal. 8. Per contra, the learned High Court Govt. Pleader supporting the judgment and order of the trial Court contended that there is corroboration in the evidence of all the witnesses, merely because the witnesses are relatives their evidence cannot be discarded. He would also contend that when once the prosecution establishes ill-treatment and harassment and death within seven years the presumption under Section 113-B of the Evidence Act will come into picture. Trial Court taking into consideration all these aspects has rightly come to a right conclusion and has convicted the accused. He would also contend that when once the prosecution establishes ill-treatment and harassment and death within seven years the presumption under Section 113-B of the Evidence Act will come into picture. Trial Court taking into consideration all these aspects has rightly come to a right conclusion and has convicted the accused. The accused-appellant has not made out any grounds so as to interfere with the order of the trial Court. He prayed to dismiss the appeal. 9. In order to prove the case of the prosecution, prosecution has got examined P.Ws.1 to 13. P.W.1 is the mother of the deceased, she has deposed that after her daughter's marriage about two months they were in good terms, thereafter accused started ill-treating and harassing by saying that she is not properly cooking and she is having eyes on other boys and also used to assault her. She has further deposed that her daughter used to inform and in turn she informed to her mother and the mother of the accused to advise the accused. During the course of cross-examination she has admitted that the accused has also come to the hospital when the deceased was brought to the hospital. She has further admitted that if anybody if does not properly cook, the husbands will blame except that other suggestions have been denied. 10. P.W.2 is inquest mahazar to Ex.P-2. P.W.3 is the spot and seizure mahazar pancha to Ex.P-3. P.W.4 is the grandmother of the deceased, she has also reiterated the evidence of P.W.1. She has further deposed she has also advised the accused. During the course of cross-examination she has admitted that there was no Panchayat held for having ill-treated the deceased by accused except that nothing has been elicited from the mouth of this witness. 11. P.W.5 is the neighbourer and also the relative of deceased, he deposed that after two months of the marriage accused started assaulting and used to tell she do not know cooking and she has an eye on the male members. 12. P.W.6 is the uncle of the deceased. He has deposed that P.W.1 the mother of the deceased used to tell about the ill-treatment given by the accused. 13. P.W.7 is relative of the deceased. He has also deposed by reiterating the evidence of P.W.1 and 5. 12. P.W.6 is the uncle of the deceased. He has deposed that P.W.1 the mother of the deceased used to tell about the ill-treatment given by the accused. 13. P.W.7 is relative of the deceased. He has also deposed by reiterating the evidence of P.W.1 and 5. During the course of cross-examination he has deposed that his house is after the temple and by the side of the house of the accused, there is a house of one Hanmantha. He has also deposed that he has not stated before the police accused used to assault his wife and he has seen. He is deposing before the Court first time. 14. P.W.8 is the neighbourer. He has also deposed about the assault to the deceased after one year of the marriage and accused used to drive his out of the house by saying that she should not live there. He has further deposed that because of the ill-treating by frustrating she consumed the poison. P.W.9 is also a neighbourer he has also reiterated the evidence of P.W.1, 4 and other witnesses. During the course of cross-examination he has admitted that in the family there will be small disputes and he has not seen the galatta between the deceased and the accused. P.W.10 is also a neighbourer. He has also deposed that they used to quarrel everyday and accused used to tell that she was not properly know the cooking and as such deceased consumed the poison because of the ill-treatment. P.W.11 is the PSI who recorded the complaint issued the FIR and after the investigation filed the charge sheet against the accused. P.W.12 is the doctor who conducted the autopsy over the dead body of the deceased and issued the post-mortem report as per Ex.P-5. P.W.13 is the Tahsildar who conducted the inquest mahazar as per Ex.P-2. 15. From the above evidence the trial Court has convicted the accused. The only point which arises for my consideration is that whether the order of conviction is sustainable in accordance with law. As could be seen from the evidence adduced by the prosecution the witnesses who have been examined have consistently deposed about the ill-treatment and harassment, assault by the accused. Though the said witnesses have been cross-examined, but nothing has been elicited so as to discard their evidence. As could be seen from the evidence adduced by the prosecution the witnesses who have been examined have consistently deposed about the ill-treatment and harassment, assault by the accused. Though the said witnesses have been cross-examined, but nothing has been elicited so as to discard their evidence. Even though the prosecution has led very short evidence so far as ill-treatment and harassment is concerned that there is consistency. During the course of argument, the learned counsel for the accused-appellant would contend that for the alleged ill-treatment and harassment no complaints or panchayat was held by the parents of the deceased as such the same is not acceptable in law. But, by going through the evidence of P.W.1, 4 and 5 they have deposed that the mother of the deceased called the mother of the accused and has advised about the ill-treatment and harassment caused by the accused. Be that as it may, the marriage has taken place about 7 months prior to the alleged incident with the accused, 2 months they led happy marital life thereafter accused started ill-treating and harassing. Once the same was informed to the mother of the accused to advise him thereafter within a short span of time the incident has taken place. When that being the circumstances, there will not be any scope for either filing the complaint or holding the panchayat. Under the normal circumstances immediately after the marriage if any such incidents starts generally the people will try to settle the said dispute within the family, only when if it goes beyond, then only the premise arises to file a complaint or hold the panchayat. In that light, the contention taken by the learned counsel for accused-appellant does not hold any water. 16. The meaning of cruelty under Section 498-A consist of two clauses. Firstly, it must be established that the cruelty or harassment to the wife was to force her to cause grave bodily injury to herself or to commit suicide or the harassment to compel her to fulfil illegal demand for dowry. Even the cruelty includes both mental or physical. Keeping in view the above said definition, if on perusal of the evidence on record it indicates that the accused used to ill-treat and harass and also used to assault alleging that she is not knowing cooking and also she is having an eye over other male members. Even the cruelty includes both mental or physical. Keeping in view the above said definition, if on perusal of the evidence on record it indicates that the accused used to ill-treat and harass and also used to assault alleging that she is not knowing cooking and also she is having an eye over other male members. Though it is contended by the learned counsel for the accused-appellant that in normal condition in every house if wife does not properly cook, then under such circumstances such type of abuse will be there. But, in the instant case on hand, the accused-appellant was not only alleging that she do not know cooking but also use to suspect and used to tell that she is having an eye on other male members. That itself amounts to nothing but cruelty. When all the witnesses have consistently said about the act of the accused and nothing has been brought on record to disbelieve their evidence. Under such circumstances, it can be safely held that the prosecution has established beyond all reasonable doubt that the accused subjected the deceased-Nagamma with cruelty. As such, the finding recorded by the trial Court in this behalf does not call for any interference and the same is liable to be confirmed. 17. The second aspect which has been urged by the learned counsel for the appellant is that without a positive act on the part of the accused to instigate or aid in committing suicide the conviction under Section 306 of IPC is not sustainable. But, he would further contend that there must be a clear mens rea to commit such offence and it also requires an active act or direct act to lead deceased to commit suicide. In order to substantiate his contention he relied upon the decision in Gangula Mohan Reddy v. State of Andhra Pradesh reported in (2010) 1 SCC 750 : ( AIR 2010 SC 327 ). Even though admittedly the death of the deceased has taken place within 7-8 months after the marriage, but there is no allegation about the demand of dowry and because of that the accused used to ill-treat and harass. As such, question of considering the dowry death does not arise. Even though admittedly the death of the deceased has taken place within 7-8 months after the marriage, but there is no allegation about the demand of dowry and because of that the accused used to ill-treat and harass. As such, question of considering the dowry death does not arise. The only question which remains for my consideration is that whether the act of the accused has driven the deceased to commit suicide by consuming the pesticide and she was not having any other option except committing the suicide. By going through the evidence which has been led by the prosecution therein all the material witnesses have deposed that the accused used to ill-treat and harass and because of the said act of the accused the deceased has consumed the pesticide and thereafter she died. Death of the deceased in question for having consumed the pesticide is not in dispute. When once the prosecution establishes the fact that the deceased died within 7 years after the marriage because of the ill-treatment and harassment caused by the accused then the Court has to draw the presumption as contemplated under Section 113-A of the Evidence Act (Hereinafter for short the 'Act'). The said section reads as under; "Section 113-A: When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, that such suicide had been abetted by her husband or by such relative of her husband." 18. By going through the above provision of law if indicates that the Court is duty bound to draw the presumption as contemplated under Section 113 of the Act. It is also clear that when a married woman if shown to have committed suicide within a period of 7 years from the date of her marriage and if her husband or relatives of her husband had subjected her to cruelty, then the presumption arises that such suicide had been abetted by her husband or by such relative of her husband. Admittedly, in the instant case on hand the deceased has died within 7 years after the marriage and even the prosecution has also established that the deceased was subjected to cruelty. 19. It must be remembered that since such crimes are generally committed in the privacy of residential homes, it is not easy to gather direct evidence in such cases. That is why the legislature has by introducing Section 113-A in the Evidence Act, tried to strengthen the prosecution hands permitting a presumption to be raised if certain fundamental facts are established. This proposition of the law has been laid down in a decision reported in Amruthlal Liladharbhai Kotak v. State of Gujrat reported in (2015) 4 SCC 452 : ( AIR 2015 SC 1355 ), wherein in it is held as under; 17. This Court has observed certain criteria with regard to establishment of guilt in the cases of dowry death. The first criterion being the suicide must have been committed within seven years of marriage. The second criterion is that the husband or some relative of the husband had subjected the victim to cruelty, which led to the commission of suicide by the victim. This is when Section 113-A of the Evidence Act indicates that in such circumstances, the Court may presume, having regard to all the circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. In the present case that we are dealing with, both the above mentioned criteria have been satisfied, since the deceased died within seven years of marriage and with the version of the witnesses, it has been further proved that there was cruelty meted out to the deceased immediately before her unfortunate death." 20. In the instant case on hand the cruelty meted out to the deceased before her unfortunate death and the deceased died within 7 years of her marriage and consistent corroborated evidence of witnesses proved the case of the prosecution. 21. In that light the presumption against the accused is so strong so as to infer the presumption that it is the act of the accused which has abetted the deceased to commit the suicide. When once the presumption has been drawn then the burden shifts upon the accused to rebut the said presumption on preponderance of probabilities. 21. In that light the presumption against the accused is so strong so as to infer the presumption that it is the act of the accused which has abetted the deceased to commit the suicide. When once the presumption has been drawn then the burden shifts upon the accused to rebut the said presumption on preponderance of probabilities. In that light, on perusal of the evidence of the witnesses and the statement of the accused recorded under Section 313 of Cr.P.C. therein the accused has taken the defence that the deceased used to have a stomachache at the time of monthly menstruation and he has taken her for treatment to a doctor, but because of the unbearable pain she has consumed the poison when he went out of the house. Even though such a defence taken by the accused, in order to substantiate the said fact and to rebut the evidence neither he has produced any document nor led any evidence. The defence remained as a defence without proof. Be that as it may, even the defence which has been taken by the accused is not considered to be justifiable or reasonable defence. In the usual course every woman who passes through menstruation every month will suffer some pain in the stomach. Under the circumstances it is not natural and probable to say that because of the said pain she took a drastic step to commit suicide by consuming poison or by any other way. Leave apart this, deceased at that time of her death was aged about 19 years. Usually, in the normal circumstances at the age of 11-12 the girl will be attaining the age of puberty from thereafter every month she will come across the menstruation period, if she has already beared the said pain for a period of more than Six years, then under such circumstances taking the drastic step of committing the suicide also does not appears to be just and probable in that light even the said defence is not acceptable and it will not stands to reason. 22. When once the prosecution establishes the said fact if accused fails to rebut the evidence on preponderance of probabilities, then under such circumstances the accused is liable to be convicted. 22. When once the prosecution establishes the said fact if accused fails to rebut the evidence on preponderance of probabilities, then under such circumstances the accused is liable to be convicted. No doubt, the learned counsel for the accused-appellant would contend that the mental process of instigation of a person or intentionally aiding a person in doing of thing without a positive act on the part of the accused to instigate or aid in committing suicide, the conviction is not sustainable but the said proposition of the law cited by the learned counsel for the accused is not applicable to the present facts of the case on hand that too when the presumption is there under Section 113-A of the evidence Act. In the said decision of the Apex Court quoted by the learned counsel for the accused the aspect of Section 113A of the Act is not considered in deciding the case. 23. Though the learned counsel for the accused contended that there are contradictions, omissions and improvements in the evidence of witnesses but in the first instance they are at a micro level, secondly they have not been established as contemplated under the law. Thirdly, they will not go to the root of the case so as to discard or disbelieve the evidence of the prosecution or its case. In that light the said contentions will not help the appellant. 24. Though it is contended that all the witnesses are relatives of the deceased, and are interested witnesses, but naturally such offences are committed in the privacy, she has come to the house of the accused very recently after the marriage, she will not be acquitted with the neighbours, then under such circumstances, it is the family members who will hear such problems. Be that as it may, the evidence of interested and relative of woman cannot be thrown only because they are relatives, the Court has to weigh. Such evidence with care and cautious. In that light there is nothing to disbelieve their evidence. Hence, the said contention does not hold any water and liable to be rejected. 25. For the reasons stated above and on perusal of the evidence on record the impugned judgment and order passed by the trial Court appears to be just and proper. There is no illegality or irregularity and erroneousness while appreciating the evidence produced by the prosecution. Hence, the said contention does not hold any water and liable to be rejected. 25. For the reasons stated above and on perusal of the evidence on record the impugned judgment and order passed by the trial Court appears to be just and proper. There is no illegality or irregularity and erroneousness while appreciating the evidence produced by the prosecution. As such, the same is liable to be confirmed. Hence, I pass following; ORDER 26. Appeal is hereby dismissed.