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2019 DIGILAW 1138 (KAR)

Rayappa v. State Of Karanataka

2019-06-06

BELLUNKE A.S.

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JUDGMENT : Bellunke A.S., J. This appeal is filed by the accused persons against the judgment of conviction and sentence imposed dated 04.09.2010 by the learned V Addl. Sessions Judge, Belagavi, in S.C.No.249/2008 wherein the accused have been convicted for the offence punishable under Sections 498-AW, 306 read with Section 34 of IPC and convicted and sentenced as under: (i) Accused No.1 to undergo simple imprisonment for a period of three years for the offence punishable under Section 306 read with Section 34 of IPC and to pay a fine of Rs.5,000/-. (ii) Further, to undergo imprisonment for two years for the offence punishable under Section 498-A read with Section 34 of IPC and to pay a fine of Rs.1,000/-. (iii) Accused Nos.2 to 4 to undergo simple imprisonment for a period of two years for the offence punishable under Section 306 read with Section 34 of IPC and to pay a fine of Rs.2,000/- each. (iv) Accused Nos.2 to 4 are further sentenced to undergo simple imprisonment for a period of six months from the offence punishable under Section 498-A read with Section 34 of IPC and to pay a fine of Rs.500/- each. 2. Brief facts of the case are as under: The deceased Padmashree, the younger sister of the complainant PW-1 was married to the accused No.1. She gave birth to two female children out of their wedlock. After the marriage, the accused were treating the deceased with cruelty for not preparing the food properly and also she has given birth to only female children. They were assaulting her. Therefore, the deceased was fed up with the attitude of the accused persons. This attitude continued for four years. Meanwhile, the elders advised the accused persons to look after the deceased properly. In spite of that the cruelty to the deceased was continued. On the advice, the accused No.1 and the deceased were made to reside separately. In spite of that the cruelty by the accused persons to the deceased was continued. As the things are going on as above said, the complainant one day received a telephone call to the naighbouring house on 16.04.2008 at about 1.00 in the midnight. The said person informed that Padmashree and her two daughters were set ablaze and he did not give any further details. As the things are going on as above said, the complainant one day received a telephone call to the naighbouring house on 16.04.2008 at about 1.00 in the midnight. The said person informed that Padmashree and her two daughters were set ablaze and he did not give any further details. Therefore, the complainant along with elders of the village and other family members hired a vehicle and rushed to the village by 6.00 a.m. By that time, Padmashree and her children had been shifted to Gokak Government Hospital. Therefore, the complainant with his accompaniers went there and noticed that Padmashree and her two children were dead with burn injuries. Therefore, it is alleged that on account of cruelty the deceased was fed up and committed suicide. Therefore, a complaint came to be filed before the jurisdictional police. After the registration of the complaint, police took up the investigation. Taluka Executive Magistrate conducted the inquest panchanama of the dead bodies. Spot panchanama was conducted by the Investigating Officer. Dead bodies were sent for postmortem examination. Statements of witnesses were recorded. After completion of investigation, charge sheet came to be filed alleging the offences punishable under Sections 498-A and 306 read with Section 34 of IPC against the accused. 3. Learned Magistrate having taken cognizance of the case, registered C.C. No.1426/2008 against the accused persons. After securing the accused, matter was committed to the Sessions Court for trial. Learned Sessions Judge secured the presence of accused persons. After hearing both the parties, charge came to be framed. Accused persons pleaded not guilty. Therefore, trial was held. Arguments of both sides were heard. Learned Sessions Judge found that the prosecution has proved the guilt of the accused beyond any reasonable doubt for the offence punishable under Sections 498-A and 306 read with Section 34 of IPC. Consequently, learned Sessions Judge convicted the accused persons and imposed sentence as stated in the beginning paras of this judgment. The said judgment has been challenged by the accused persons on following grounds: The trial Court failed to note that the evidence on record was not sufficient to prove the guilt of the accused beyond any reasonable doubt. The trial Court has not properly appreciated the evidence on record and came to a wrong conclusion on the point raised for determination. Judicial mind was not applied to the evidence on record. The trial Court has not properly appreciated the evidence on record and came to a wrong conclusion on the point raised for determination. Judicial mind was not applied to the evidence on record. The trial Court has relied only on the interested testimony of the witnesses PW-1, 2, 8 to 10. The procedure adopted by the trail Court is quite contrary to law. There is no reliable and worthy evidence. Other accused were not at all residing with the deceased. Fourth accused was married and residing in her marital house. Trial Court has relied on inconsistent and contrary evidence of the witnesses. The ingredients of the Section 498-A of IPC were not at all proved. The trial Court believed the evidence of witnesses PW-2, 8 to 10, though they were treated hostile by the prosecution. The entire approach of the trial Court is against the law. The trail Court ignored the omissions and improvements in the evidence of the prosecution. Therefore, learned counsel for the appellants/ accused prayed to allow the appeal. 4. Heard the arguments addressed by the learned counsel for the appellants/accused as well learned Addl. SPP for the State. 5. Learned counsel for the appellants/accused submitted that the deceased died on account of accidental injuries as there was a chiming in the house which was lit at night and by that the incident could have been happened. There was no abetment caused by any of the accused so as to compel the deceased to commit suicide. The other accused were not at all residing with the deceased. Even accused No.1 was working in a sugar factory at Gokak. He was on night duty on the date of incident. Accused have not caused any cruelty to the deceased. Further, it is important to note that the accused No.4 sister-in-law of the deceased has also begotten two female children. The reasons for causing cruelty are not at all proved. The witnesses have been deposed according to their convenience. The marriage had taken place nearly 8 years back. Therefore, no presumption can be applied. There is no evidence to show that at the time of incident, there was any power supply or not. The evidence of father of the deceased is contrary to the evidence of his wife PW-2. The accused were financially sound. Therefore, there was no any reason to demand dowry or other things. Therefore, no presumption can be applied. There is no evidence to show that at the time of incident, there was any power supply or not. The evidence of father of the deceased is contrary to the evidence of his wife PW-2. The accused were financially sound. Therefore, there was no any reason to demand dowry or other things. The deceased is said to have suffered 100% deep burn injures. The photographs of the dead bodies and place of incident were not all taken. The independent witnesses have not at all supported the case of the prosecution. Therefore, learned counsel prayed to allow the appeal. 6. As against this, learned Addl. S.P.P. argued that the evidence on record clearly prove that the deceased was ill-treated by accused persons for having given birth to female children. There was also illegal demand for money. The presumption under Section 113-A can be taken as death in question is occurred within 8 years of marriage in unnatural circumstances. The accused No.1 was very much present in the house. The accused committed offence under common intention. Therefore, the trial Court has rightly convicted the accused persons. Hence, learned Addl. S.P.P. prayed to dismiss the appeal. 7. On the basis of the pleadings of the parties, the following points would arise for my consideration: (1) Whether the prosecution has proved beyond any reasonable doubt before the trial Court that the accused under a common intention had caused cruelty to the deceased as defined under Section 498-A(a) read with Section 34 of IPC? (2) Whether the prosecution has proved beyond any reasonable doubt before the trial Court that the deceased committed suicide on account of intentional abetment caused to the deceased by the accused persons and thereby the accused have committed offence punishable under Section 306 read with Section 34 of IPC ? (3) Whether the appellants prove that the judgment of the trial Court is perverse, capricious and against the facts and evidence on record? (4) What order? 8. Before adverting to the material evidence on record, Section 498-A of IPC is necessary to extract which is as follows: "498A. Husband or relative of husband of a woman subjecting her to cruelty. (3) Whether the appellants prove that the judgment of the trial Court is perverse, capricious and against the facts and evidence on record? (4) What order? 8. Before adverting to the material evidence on record, Section 498-A of IPC is necessary to extract which is as follows: "498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. For the purpose of this section, "cruelty" means (a) any will full conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." On careful reading of the above provision, I proceed to appreciate the evidence available on record to find out whether the accused had caused any cruelty to the deceased under a common intention. 9. PW-1 is the elder brother of the deceased Padmashree. He has deposed that after the birth of first child, the deceased Padmashree was looked after well by the accused and after the birth of second child, accused persons started harassing his sister saying that she cannot not cook food properly and she delivers only female child. The accused was not sending the deceased to her mother's house. These things were told by the deceased to her mother whenever she comes to her house. Panchayat was held and in spite of that cruelty was continued. It is also admitted in the examination-in-chief that two months prior to the incident, the accused and the deceased were kept separately. In spite of that, other accused were harassing the deceased. The complaint is at Ex.P-1. In the entire evidence, PW-1 does not refer to the accused causing cruelty to extract any money or property as such. It is also admitted in the examination-in-chief that two months prior to the incident, the accused and the deceased were kept separately. In spite of that, other accused were harassing the deceased. The complaint is at Ex.P-1. In the entire evidence, PW-1 does not refer to the accused causing cruelty to extract any money or property as such. In the cross-examination, PW-1 admitted that the marriage between the deceased and accused No.1 took place at Konnur. The marriage was performed by accused No.1 and his family members. At the time of marriage, in the house of accused No.1, his parents, one younger brother were staying. The sister of accused No.1 is already married. He admits that accused No.4 has two daughters. Accused are having 2 houses in Konnur. After the marriage, accused and the deceased used to sleep in one house, but were staying along with others in another house. He admits that second baby was born in the month of September 2007 in his house. After the birth of second baby, the deceased went to her husband's house in the 7th month. The naming ceremony of second baby took place in his house. At that time, all the accused had come to his house and offered gold ring and chain to baby Archana and sarees to the deceased and her mother. He denies that till the death of the deceased Padmashree, the relation between the deceased and her husband were cordial. He has deposed that there was ill-treatment to the deceased on the ground that she cannot cook food properly and that she has delivered two daughters. PW-1 has deposed that after the incident, he himself and his family members were in Gokak hospital for about ten minutes. Since there was nobody, he did not enquire as to what happened to the deceased. He had not met any police in the hospital. He admits that in his complaint, he has not mentioned about all the accused complaining before him about the inability of his sister to cook the food properly. He has not stated that the accused have set fire to his sister but he has not stated so before the court also. Therefore, from the evidence of PW-1, I find that it is difficult to hold that any of the ingredients of Section 498- A of IPC were made out. 10. He has not stated that the accused have set fire to his sister but he has not stated so before the court also. Therefore, from the evidence of PW-1, I find that it is difficult to hold that any of the ingredients of Section 498- A of IPC were made out. 10. PW-2 is the mother of the deceased who has given contradictory evidence. She has deposed that accused were ill-treating and harassing her daughter asking her to bring money and gold. Further, she identified the dead body of her daughter and granddaughters. Accused have burnt her deceased daughter and grand daughters as her daughter failed to fulfill the demands for money and gold. Police have not recorded her statement and even Tahasildar has also not enquired with her at the time of inquest. PW-2, In her cross-examination, she denies that in her statement before the Police, she has stated that being unable to bear the ill-treatment, her daughter set fire to her two daughters and set herself ablaze. She further denies that she has given statement before the Police as per Ex.P-2 and since her daughter had delivered two female babies accused were harassing and ill-treating her saying that she is delivering only female babies. PW-2 was partially treated hostile. Therefore, learned P.P. should have taken time for clarification by re-examining the witness or eliciting the reasons for the witness to give evidence in the above said manner, which is contrary to the case of prosecution. PW-2 admits that marriage of deceased Padmashree and accused No.1 took place at Konnur only and all the marriage expenses were borne by accused. She further admits that accused are financially sound. Accused No.4 is married earlier to the marriage of Padmashree with accused No.1. It is further admitted that accused No.4 has begot two daughters. She admits that in Konnur village, Jain community people are more. In Jain community, ladies strength is less compared to gents. In Jain community, bridegroom will pay something to the family of the bride for marrying the bride. The deceased Padmashree gave birth to her daughters in Marganakoppa village. The naming ceremony of second daughter Archana was performed in her house only. All the accused attended the naming ceremony. They had brought gold and silver articles to Archana. In Jain community, bridegroom will pay something to the family of the bride for marrying the bride. The deceased Padmashree gave birth to her daughters in Marganakoppa village. The naming ceremony of second daughter Archana was performed in her house only. All the accused attended the naming ceremony. They had brought gold and silver articles to Archana. She do not remember how many days after the marriage of deceased, PW-2 told her village elders about accused harassing her. PW-2 denies that she did not tell anyone about the ill-treatment by accused demanding gold and cash amount. She further denies that the deceased along with her two daughters was residing happily in the house of accused. None of the accused was there in Gokak Hospital. It is also denied that deceased and her daughters were sleeping on the bed and the bed caught fire accidentally by a nearby chimani and they succumbed to burn injuries. She was partially treated hostile and she denied that she has given statement as per Ex.P-2 before the Police. On perusal of the evidence of PW-2 in the cross-examination, I find that the act of causing cruelty as made out by the prosecution has not been established. Further the evidence is contrary to the evidence stated by the complainant PW-1. 11. PW-3 is the elderly person said to have gone along with other witnesses to advice the accused persons. According to this witness, after murdering them the accused made it to believe that deceased has set fire to herself and to her daughters. He was partially treated as hostile. He denied that he has given statement before the police as per Ex.P-3. Further denied that he has stated that the accused abated the deceased to commit suicide by setting fire to herself and to her daughters. On the date of incident, he had also seen the place of incident. He claims to have not stated in his statement before the police that he visited Konnur village. In the background of accused No.4 delivering two female children and there being no harassment or cruelty to her by in-laws, then how it can be believed that the accused were harassing the deceased as she had delivered two female children. 12. PW-4 is also an elder who had gone to advice the accused persons. In the background of accused No.4 delivering two female children and there being no harassment or cruelty to her by in-laws, then how it can be believed that the accused were harassing the deceased as she had delivered two female children. 12. PW-4 is also an elder who had gone to advice the accused persons. According to him, the deceased had told him that after the birth of two daughters, the accused were ill-treating the deceased Padmashrree. After the incident, he had also visited the house of the accused. He saw a body completely burnt. He denied that he has not stated before the police that the deceased had told him that the accused were insisting her to bring money and gold from her parents' house. Therefore, this evidence of this witness does not prove the ingredients of the cruelty defined under Section 498-A of IPC. 13. PW-5 is the panch to the inquest panchanama of the dead bodies. He identifies the inquest panchanama which was conducted in his presence. 14. PW-6 is the attester to the inquest panchanama at Ex.P-5. He has not supported the case of the prosecution. Completely he was treated hostile. He deposes that when they entered the house at about 12.00 p.m. or at 1.00 a.m., by removing the tiles, accused No.1 was not present in the house. 15. PW-7 is also an attester to Ex.P-5. He has not supported the case of the prosecution. 16. PW-8 is the neighbour of the deceased Padmashree. According to him, 2-3 months earlier to the incident, the deceased Padmashree and her husband used to sleep in the house aside his house. Other accused were visiting the house of accused No.1 and his wife. He deposes that he is not aware of the fact of ill-treating the deceased by the accused persons. He denied that he had given statement as per Ex.P-6. Therefore, he was treated hostile and cross-examined. 17. PW-9 is the attester to Ex.P-7 who has stated that there was not ill-treat or harassment to the deceased Padmashree on account of she giving birth to two female children. He went to the scene of offence after hearing hue and cry from the house of the accused. According to him, he went to the house of the accused and saw the bed caught fire and so to Padmashree and her daughters. He went to the scene of offence after hearing hue and cry from the house of the accused. According to him, he went to the house of the accused and saw the bed caught fire and so to Padmashree and her daughters. He denied that he having been given statement as per Ex.P-7. 18. PW-10 is the neighbour of Padmashree who has also not supported the case of the prosecution and also denied that he has given statement before the Police as per Ex.P-8. 19. PW-11 is scribe of complaint at Ex.P-1. He was working as Zilla Panchayat Secretary. He deposes that the marriage of the deceased and accused No.1 was performed by the family of the accused persons. He claims to have advised the accused to treat the deceased well. He did not know the name of accused No.1 but can identify him. He has admitted that accused No.1 was working in Gokak mills. Though the mother and other witnesses admitted that the accused were financially sound, this witness denied the same. He is only a hearsay witness. 20. PW-12 is the brother of CW-1. He has also deposed that the deceased was being harassed for giving birth to female children. According to him, there was harassment to the deceased on account of she gave birth to the female children. Therefore, to advice them he had gone to the village of the accused. After coming to know the incident, he went to the hospital and saw the dead bodies. He has deposed that his sister and her daughters were not alive and skin was peeled off acid had been thrown on them. Whereas, in the cross-examination, he admits that his sister unable to bear the ill-treatment, committed suicide by pouring kerosene on herself and on her daughters and setting fire to herself and her daughters. He do not know for what reason his sister and her daughters died. He was treated as hostile. 21. PW-13 is the then Tahasildar who had conducted inquest panchanama at Ex.P-4 in the presence of witnesses. He has recorded the statements of PWs-1 and 2. Since PWs-1 and 2 told him that the deceased Padmashree was being given ill-treatment by the accused. He has noted the same in the panchanama. He denies that it was an accidental fire incident. 22. PW-14 is the Investigating Officer. He has spoken about the investigation made by him. He has recorded the statements of PWs-1 and 2. Since PWs-1 and 2 told him that the deceased Padmashree was being given ill-treatment by the accused. He has noted the same in the panchanama. He denies that it was an accidental fire incident. 22. PW-14 is the Investigating Officer. He has spoken about the investigation made by him. He admits that he has drawn the hand sketch. He admits that he has not enquired any of the doctors in the hospital. He has not enquired whether the accused No.1 on the date of incident had gone to Gokak Mills for his night shift. He has not collected any documents from the concerned mill to show that that day accused had not attended the mill. 23. On evaluating the entire evidence, I find that the ingredients of Section 498-A of IPC are not proved. There is a reasonable doubt made out as to whether the deceased committed suicide or it was an accidental death. Further the fact of cruelty itself is not proved. Several years have lapsed after the marriage and therefore, the allegation that the accused were harassing the deceased on the ground that she has delivered female children does not appear to be a strong ground so as to compel the deceased to kill her and her daughters. There is no harassment caused to the deceased to make any illegal gain. Further accused No.3 and 4 were not at all residing with the deceased prior to the date of incident. Implication of all the accused particularly accused No.4 who is also having two daughters raises a doubt as to whether there was any concoction. When such doubt is entertained then it is difficult to believe the prosecution witnesses to convict the accused persons. The Hon'ble Supreme Court in the case of Rajbabu and another v. State of Madhya Pradesh, (2008) 17 SCC 526 held that unless there is direct evidence to show that the accused was aiding or instigating the deceased to commit suicide, or entered into conspiracy to aid her in committing suicide, the accused cannot be convicted for the offence punishable under Section 306 of IPC. Another judgment rendered in Criminal Appeal No.790 of 2017 can also be relied on. In the said judgment, the ingredients required to apply presumption under Section 113 of IPC is also elaborately discussed. 24. Another judgment rendered in Criminal Appeal No.790 of 2017 can also be relied on. In the said judgment, the ingredients required to apply presumption under Section 113 of IPC is also elaborately discussed. 24. The burden of proof is always on the shoulders of the prosecution. Unless the fact of cruelty is proved, no such presumption can be raised in favour of the prosecution. Initially, the burden has to be proved and then presumption is to be drawn. The incident has taken place within seven years from the date of marriage itself will not attract the said presumption. 25. Nowhere in the complaint or in the evidence, the specific date of marriage of the deceased with the accused is not stated. According to PW-1, marriage of his sister with accused No.1 took place about eight years back. Therefore, the presumption under Section 113 cannot be applied unless the fact of death is proved within seven years from the date of marriage. Hence, for all reasons points No.1 and 2 are answered in the negative. 26. The conclusion arrived at by the trial Court is perverse, capricious and against the law, facts and evidence on record. Hence, the point No.3 is answered in the affirmative. 27. For the aforesaid reasons, the appeal filed by the accused persons is allowed. Consequently, the judgment of conviction and sentence imposed dated 04.09.2010 by the learned V Addl. Sessions Judge, Belagavi, in S.C.No.249/2008 is set aside. The accused are acquitted of all the charges leveled against them. Fine amount paid by the accused Nos.1 to 3 shall be refunded to them. 28. The bail bonds shall continue till the appeal period is over. 29. The Court appreciates the assistance rendered by the learned Amicus Curiae Smt. Prafull Naik. The Legal Services Committee, High Court of Karnataka, Dharwad Bench, Dharwad is directed to pay honorarium of Rs.6,000/- to the Amicus Curiae. 30. Send a copy of this judgment to the trial Court forthwith along with records of trial Court.