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2018 DIGILAW 723 (KAR)

Manjunatha @ Manja v. State of Karnataka

2018-06-21

B.A.PATIL

body2018
JUDGMENT : B.A. Patil, J. The present appeal has been preferred by the appellant/accused being aggrieved by the judgment of conviction and order of sentence passed by IV Additional District and Sessions Judge, Mysuru in S.C. No. 155/2009 dated 08.09.2010. 2. The genesis of the case of the prosecution is that one Mariyaiay @ Late Bettaiah filed the complaint as per Ex.P3 alleging that his second daughter-Kamalakshi was given in marriage to the accused during 1996 and at that time of marriage, he has also given some gold articles. He further stated that after one year, the accused, the brother of accused, his sisters and his parents started ill-treatment. After snatching all the gold articles, they started demanding additional amount from her parents. He also stated that he pacified the things through one Siddaiah and when his daughter told that they were ill-treating again, he advised the accused and two times he got prepared the gold articles and gave to his daughter. He further stated that his son-in-law is addicted to bad vices and he was not in a position to heed and he used to ill-treat and harass her mentally and physically. He has also stated that his daughter was having two children and as such, she used to tolerate. On 07.03.2009 at about 8:30 p.m., he received a phone call about the death of his daughter. When he went to the said place, there he noticed that his daughter had been murdered and thereafter, by pouring the kerosene they have burnt the body and the accused persons were absconding. On the basis of the said complaint, a case was registered in Crime No. 59/2009 for the offences punishable under Sections 498A, 302, 201 read with 34 of IPC and also sections 3 and 4 of Dowry Prohibition Act. 3. On the basis of the complaint, the Investigating Officer investigated the case and thereafter laid the chargesheet against accused No. 1 alone under Section 498A and 306 of IPC. After following the procedure, the committal Court committed the case to the Sessions Court. Sessions Court after committal, took cognizance and after hearing the learned Public Prosecutor and learned counsel for the accused, charge was framed. Accused denied the charges leveled against him and he claims to be tried. After following the procedure, the committal Court committed the case to the Sessions Court. Sessions Court after committal, took cognizance and after hearing the learned Public Prosecutor and learned counsel for the accused, charge was framed. Accused denied the charges leveled against him and he claims to be tried. In order to prove the case of the prosecution, prosecution got examined PWs.1 to 13 and got marked Exs.P1 to P9 and also got marked Material objects MO's 1 to 7. Thereafter, the statement of the accused came to be recorded under section 313 of Cr.P.C., 1973 Accused denied the said incriminating material against him and he has not lead any defense evidence. 4. After hearing both the sides, the impugned judgment of conviction and order of sentence came to be passed. Being aggrieved by the said judgment, the appellant/accused is before this Court. 5. The main grounds urged by the learned counsel Sri. K.A. Chandrashekara are that the alleged incident has taken place on 07.03.2009 at about 4.30 p.m. but the complaint-Ex.P3 came to be filed on 08.03.2009 at about 5.00 a.m. There is a delay of more than 12 hours in filing the complaint. As per the complaint, the police were already there at the spot. He further contended that though there is no evidence produced by the prosecution to show that the accused ill-treated and harassed the deceased, the trial Court has wrongly convicted the accused under Section 498A of IPC. He further submitted that there is no nexus between the act of the accused and the committal of suicide by the deceased. Under such circumstances, the trial Court ought not have convicted the accused under Section 306 of IPC. He further submitted that the deceased, accused, his parents and brother were living together. If really there was ill-treatment and harassment caused to the deceased, then under such circumstances, definitely, two children who were residing with the deceased, definitely would have stated something before the Investigating Officer but those two children have not been cited as witnesses in the chargesheet. 6. He further submitted that the neighbours have completely turned hostile and as there was no evidence to show that the appellant/accused abetted the deceased to commit suicide, the trial Court has wrongly convicted the accused for the said offences. 6. He further submitted that the neighbours have completely turned hostile and as there was no evidence to show that the appellant/accused abetted the deceased to commit suicide, the trial Court has wrongly convicted the accused for the said offences. On these grounds, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence. 7. Per contra, the learned Additional Special Public Prosecutor Sri. Vijayakumar Majage, vehemently argued by drawing my attention to the evidence of PW.2 to the effect that PWs.2, 3, 4 and 12 have categorically deposed regarding the ill-treatment and harassment caused by the accused persons to the deceased. Which has driven her to commit suicide. He further submitted that though the accused has taken up the defense that the deceased was having stomach ache, as a result of which, she herself poured the kerosene and lit fire. In order to substantiate the said fact, no material has been produced before the Court. Under such circumstances, the trial Court has rightly appreciated the evidence and has come to the right conclusion and convicted the accused. The appellant/accused has not made out any good grounds so as to interfere with the order of the trial Court. The order of the trial Court deserves to be confirmed by dismissing the appeal. 8. I have gone through the evidence of the prosecution witnesses and the grounds of appeal made in the appeal memo and the submissions made by both the learned counsel appearing for the parties. It is the case of the prosecution that the accused used to ill-treat and harass the deceased and subjected her to cruelty both mentally and physically. In order to substantiate the said fact, the prosecution has got examined the father of the deceased as PW.2. In his evidence, he has deposed that after marriage, the accused person used to assault, ill-treat and harass his daughter and the same was informed to him. Through one Siddaiah has advised the accused, thereafter also he continued the same ill-treatment and harassment. This evidence of PW.2 is corroborated during the course of cross-examination at paper book page No. 36 wherein in the last paragraph, it has been elicited that family members of the accused used to assault and they told to advise the accused. Through one Siddaiah has advised the accused, thereafter also he continued the same ill-treatment and harassment. This evidence of PW.2 is corroborated during the course of cross-examination at paper book page No. 36 wherein in the last paragraph, it has been elicited that family members of the accused used to assault and they told to advise the accused. That itself clearly goes to show that there used to be a ill-treatment and harassment by the accused to the deceased and even on perusal of the evidence of PW.3, the brother of the deceased and PW.12-the mother of the deceased have also categorically deposed with regard to the ill-treatment and harassment of the deceased by the accused. 9. On perusal of the evidence of prosecution, it clearly goes to show that the accused used to ill-treat and harass the deceased even by consuming alcohol. It is the contention of the learned counsel for the appellant/accused that the deceased has got two siblings and they were residing together. In order to prove the case of the prosecution the fact that the accused used to ill-treat and harass the deceased, they have not been cited as witnesses in the chargesheet as well as they have not been examined before the Court. 10. As could be seen from the evidence of PW.11-the Police Inspector B.P. Dinesh Kumar, during the course of his cross-examination, it has been elicited that when he tried to record the statement of the children of the deceased and other witnesses, they did not come forward to give the statement. Though he has made all the efforts, if they have not come forward to give statement in that their statement was not recorded, therefore, they have not been cited as witnesses. By going through the said evidence, it shows that there is no infirmity on the part of the Investigating Agency to take an adverse inference as against prosecution. 11. As could be seen from the records, though the Investigating Agency examined the neighbors before the Court as PWs.5 to 8, they have not supported the case of the prosecution. By going through the said evidence, it shows that there is no infirmity on the part of the Investigating Agency to take an adverse inference as against prosecution. 11. As could be seen from the records, though the Investigating Agency examined the neighbors before the Court as PWs.5 to 8, they have not supported the case of the prosecution. When the evidence of PWs.2 and 12 is consistent and also corroborates during the course of cross-examination, under such circumstances, the contention of the learned counsel for the appellant/accused that the prosecution has not proved the guilt of accused under Section 498A of IPC does not hold any water and it is also not having any force. As such, the same is hereby rejected. 12. The second contention of the learned counsel for the appellant/accused is that there is no proximity between the accused and the deceased committing suicide. In that light, he submitted that the Court below, without considering the said fact, has wrongly come to the conclusion and has convicted the accused. 13. It is well settled principles of law that to attract the ingredient of abetment, intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary. It also requires an active act or direct act which lead the deceased to commit suicide seeing no option and this act must have been intended to push the deceased in such a position that he/she committed suicide. This proposition of law has also been laid down by the Hon'ble Apex Court in the case of M. Mohan v. State Represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238 as under: "45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. 46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. 46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide." 14. As could be seen from the above decision, Hon'ble Apex Court has clarified that in order to convict the person under Section 306 of IPC, there has to be a clear mens rea to commit the alleged act. It also requires an active act or direct act, which lead the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide. 15. With the above proposition of law, if we analyse the evidence which has been produced before the Court below, it is seen that though the prosecution has got examined the parents of the deceased as PWs.2 and 12, they are not the witnesses who were present at the time of alleged incident. Who were present soon before the death of the deceased-Kamalakshi have specifically deposed regarding the active act or direct act of the accused to push the deceased into such a position that she should commit suicide. 16. Even on careful perusal of the evidence, there is no evidence produced by the prosecution to show that soon before the death, the deceased has also been ill-treated and harassed both mentally and physically so as to drive her to commit suicide. In the absence of any such finding given by the Court below the reason given by the trial Court that the prosecution has proved the guilt of the accused beyond all reasonable doubt under Section 306 of IPC is not sustainable in law and the same deserves to be set aside. 17. In the absence of any such finding given by the Court below the reason given by the trial Court that the prosecution has proved the guilt of the accused beyond all reasonable doubt under Section 306 of IPC is not sustainable in law and the same deserves to be set aside. 17. Keeping in view the above said facts and circumstances of the case, I am of the considered opinion that after careful and conscious attention to the judgment and award of the trial Court and factual matrix, the trial Court has not kept in view the above said proposition of law and facts, has wrongly convicted the accused under Section 306 of IPC and the same deserves to be interfered with by this Court. 18. In my opinion, the appellant/accused has made out a case so as to set aside the order passed under Section 306 of IPC. In the light of the discussion held by me above, appeal is allowed-in-part and the judgment of conviction and order of sentence passed by the trial Court in S.C. No. 155/2009 dated 08.09.2010 in respect of the offence under Section 306 of is set aside by holding that the prosecution has failed to prove the offence under Section 306 of IPC. In so far as the offence under Section 498A of IPC is concerned, the same is confirmed. 19. After hearing both sides regarding the sentence under Section 498A of IPC, the learned counsel for the appellant/accused submitted that the trial Court has convicted the accused for the offence under Section 498A of IPC for a period of two years and to pay a fine of Rs. 1,000/-. He further submitted that accused was in jail for a period of one year nine months, the same may be given set off by adjusting the imprisonment which he has already undergone. 20. Taking into consideration the submissions of both the sides, if the sentence which has been imposed is modified to the period which appellant/accused has already undergone, then, it is going to meet the ends of justice. In that light appellant/accused is convicted for the offence under Section 498A of IPC and sentenced to undergo simple imprisonment for a period which he has already undergone as a under trial prisoner and to pay a fine of Rs. 1,000/- indefault to under go simple imprisonment for six months.