Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1240 (KAR)

Mohammad Babasab Arab v. State Of Karnataka

2019-06-13

BELLUNKE A.S.

body2019
JUDGMENT : Bellunke A.S, J. This is an appeal filed by accused Nos.1 to 4/ appellants against the judgment and order of conviction and sentence dated 11.03.2011 imposed against them by the V Additional Sessions Judge, Belgaum in S.C.No.24/2010 for the offences punishable under sections 498-A and 306 read with section 34 of IPC. 2. By the impugned judgment, accused Nos.1 to 4 who are the appellants herein have been convicted, for the offences punishable under Sections 498-A and 306 read with section 34 of IPC. They have been sentenced to suffer simple imprisonment for three years and to pay fine of Rs.5,000/- each and in default to undergo simple imprisonment of one year each for the offence punishable under section 306 read with section 34 of IPC. Further they have sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.2,500/- each in default to pay fine further undergo simple imprisonment for a period of one year for the offence punishable under section 498-A read with section 34 of IPC. 3. Brieffacts for the purpose of this appeal are as under: The deceased Smt.Bilal was married to accused No.1 in the year 2007. Accused No.2 and 3 are the parents of the accused No.1 and accused No.4 is the sister. After the marriage, the deceased Smt.Bilal used to reside in her matrimonial house along with accused persons. It is alleged that the accused persons were subjecting her to physical and mental cruelty for not giving birth to a male child and she was not properly doing the domestic work. Therefore, all the accused used to harass, which ultimately lead the deceased to commit suicide by hanging on 10.10.2009 in her matrimonial house. 4. After coming to know about the death of Smt.Bilal, the parents and brother of the deceased went to house of the accused and found that Smt.Bilal hanging with the help of rope. They came to know that she died at about 11.00 a.m. Therefore, the complaint came to be filed before the jurisdictional police as per Ex.P.5 alleging that the deceased committed suicide on account of physical and mental cruelty caused by the accused persons. Based on the said complaint, the police registered a case in crime No.382/2009 for the offences punishable under sections 498-A and 306 read with section 34 of IPC. 5. Based on the said complaint, the police registered a case in crime No.382/2009 for the offences punishable under sections 498-A and 306 read with section 34 of IPC. 5. During the course of investigation, accused were arrested. Subsequently, they were enlarged on bail. The learned magistrate, before whom the charge sheet was filed, took the cognizance of the aforesaid alleged offences. The offence punishable under section 306 of IPC which is exclusively triable by the Sessions Court. Therefore, the case came to be committed to the Sessions Court for trial. 6. After receiving the records, the Sessions Court registered the case in S.C.No.24/2010 against the accused persons. After securing the presence of the accused and after hearing both the sides, charge came to be framed against the accused persons for the offences punishable under sections 498-A and 306 read with 34 of IPC. 7. The learned Sessions Judge held the trial of the case and found that the offences alleged against the accused have been proved beyond any reasonable doubt. Consequently, the impugned judgment and order of conviction and sentence came to be passed. The said judgment has been challenged on the following grounds. 8. The impugned order of conviction and sentence passed by the Sessions Court is contrary to the material placed on record. The learned Sessions Judge passed the impugned judgment only on the assumptions and not on material evidence placed on record, which has led to miscarriage of justice. There is non appreciation of evidence and non application of judicial mind. There is no corroboration of the evidence of complainant and his son who alone have supported the case of the prosecution. The independent witnesses have not supported the case of the prosecution. The alleged elders namely PWs.1 to 3 have not at all supported the case of the prosecution. The evidence on record does not prove ingredients of section 498-A of IPC. The admissions of PWs.5 and 7 in their cross-examination have been overlooked by the trial court. The deceased committed suicide on account of her own reason and not by the acts of the accused. The complaint was got lodged belatedly with the help of a writer. The ingredients of section 306 of IPC are totally not made out from any evidence on record. Therefore, the appellants have sought to allow the appeal and set aside the impugned judgment and order of conviction and sentence. The complaint was got lodged belatedly with the help of a writer. The ingredients of section 306 of IPC are totally not made out from any evidence on record. Therefore, the appellants have sought to allow the appeal and set aside the impugned judgment and order of conviction and sentence. 9. Learned counsel for the appellants relying on the decisions in the case of Rajbabu and another Vs. State of Madhya Pradesh, (2008) 17 SCC 526 and in the case of Giridhar Shankar Tawade Vs. State of Maharashtra, (2002) 5 SCC 177 , reiterating the appeal grounds. The learned counsel for the appellant also pointed out the admissions made by the prosecution witnesses in their evidence. Hence the learned counsel for the appellant s has prayed to allow the appeal and set aside the order of conviction. 10. As against that, Sri Praveen Uppar, learned High Court Government Pleader submitted that the evidence of PWs.5 and 7 cannot be discarded merely because they are the relatives of the deceased. The fact of causing cruelty to the deceased on the ground that she has not given birth to a male child and she was not attending the household work etc., have been proved by the evidence of PWs.5 and 7. It is not necessary that the evidence should be corroborated by independent witnesses. Unfortunately the independent witnesses have not supported the case of the prosecution. The Sessions Judge after appreciating the evidence on record has come to the right conclusion. Hence, supporting the impugned judgment, the learned High Court Government Pleader prays to dismiss the appeal and confirm the judgment and order of conviction imposed against the accused. 11. On the basis of the above facts and pleadings of both the parties, the following points would arise for consideration of this Court : (1) Whether the prosecution had proved beyond any reasonable doubt that accused Nos.1 to4 under common intention had caused physical and mental cruelty to the deceased and therefore Smt.Bilal committed suicide and hence the accused had committed offences punishable under sections 498-A and 306 read with section 34 of IPC? (2) Whether the trial Court was justified in applying the presumption under Section 113-A of the Evidence Act to the case in hand? (2) Whether the trial Court was justified in applying the presumption under Section 113-A of the Evidence Act to the case in hand? (3) Whether the appellants prove that the judgment and order of conviction and sentence passed by the Sessions Court is perverse, capricious and against the principle of natural justice and therefore it is liable to be set aside? (4) What order? 12. Before looking to the facts and circumstances of the case it is necessary to refer the ingredients of sections 498-A and 306 of IPC and also section 113-A of the Evidence Act. To constitute an offence punishable under section 498-A of IPC, the prosecution has to prove beyond any reasonable doubt the following ingredients: The cruelty alleged to have been given by the accused must be a willful conduct. It should be of such a nature as it is likely to drive a woman to commit suicide or to cause grave injury or danger to her life or health. The cruelty could be either mentally or physically. The cruelty caused should be with a view to coerce the woman or any person related to her to meet the unlawful demand for any property or valuable security. The cruelty should have been caused on account of failure by the woman or any person related to her meet such demands and the accused. 13. In this case, the only ground made out for cause of causing cruelty to the deceased or that the deceased was not doing the household work properly and she has not given birth to a male child. Admittedly the marriage had taken place just two years prior to the death of Smt.Bilal. Therefore, there was enough time and possibility to the deceased given birth to a male child. 14. On prima facie reading the complaint at Ex.P.5 and also looking to the evidence stated by PWs.5 and 7, I find that the cause stated by the prosecution regarding causing cruelty to the deceased does not appear to be a willful conduct, so as to fit it, within the definition of section 498- A or 498-B of IPC. 15. At the very outset, I would like to opine that the allegations made in the complaint at Ex.P5 and as well as the statements made by the witness in the evidence are bald in nature. 15. At the very outset, I would like to opine that the allegations made in the complaint at Ex.P5 and as well as the statements made by the witness in the evidence are bald in nature. The allegation in the complaint is that xxxxxxxxxxxxx the allegation of overt-act is also found to be bald in nature when specifically referring any overt-act against the accused, which would make out the ingredients of the Section 498 of IPC. 16. As regards suicide by the deceased hanging herself with rope, the specific overt-act committed soon before the death of the deceased are not made out in the complaint-Ex.P5. Therefore, merely because the deceased committed suicide within seven years from the date of marriage or that she died in unnatural circumstances would not lead to a presumption that it is the accused who have caused physical and mental cruelty to the deceased. Unless and until prosecution proves beyond any reasonable doubt that the deceased was subjected to cruelty as defined under Section 498A of IPC, the presumption available under Section 113A of Indian Evidence Act cannot be applied. 17. Now coming to the oral evidence on record, PW1 to 3 who are said to be the persons who had advised the accused not to ill-treat the deceased, have not supported the case of prosecution. They are said to be the persons coming from the Village of the accused. They have specifically stated that they have not advised the accused particularly the accused No.1 regarding accepting of cruelty given to the deceased by the accused persons. 18. PW5 is the brother of the deceased and the complainant in this case. According to him, the accused used to beat two months after the marriage. The deceased used to tell these facts whenever she visit their Village. Then they took panchas and went to the house of the accused and advised them. The name of panchas who were taken to the house of the accused, date on which they went their house or the number of times they have advised to the accused persons, are not at all stated in the examination in chief. PW.5 has further deposed that after the birth of a female child the accused increased giving harassment to the deceased on the ground that she had given birth to a female child. PW.5 has further deposed that after the birth of a female child the accused increased giving harassment to the deceased on the ground that she had given birth to a female child. In the cross-examination he has specifically admitted that before giving marriage to the accused, they had verified their family of the accused. They found the boy i.e., accused is good person. Thereafter they have performed the marriage of his sister with accused No.1. They have admitted that the accused persons have got lands and got agricultural establishment. They are also cultivating lands of others. 19. Further, it is admitted by PW.5 that after the marriage of his sister there was no occasions for the deceased to go out of the house to do coolie work. He admitted that his sister was doing domestic work as well as the agricultural work in the parental house. If that was the case, then question of causing cruelty to the deceased for not doing the above said work would not arise at all. 20. It is also admitted by PW.5 that the deceased used to visit Shiraguppi on festival occasions or on full moon festival. The deceased became pregnant after six months of the marriage and came to the parents house and delivered a girl baby and she was there about three months. It is not the case of prosecution during those days there was any harassment to the deceased on any reasons. It is also admitted that it is the accused No.3 who came and took the deceased and child to their home. Three months after delivery, the deceased had gone to husband's house and two months thereafter returned back with baby to the parents' house at Shiraguppi and she told about ill-treating by the accused persons and she was sent back with advice to accused to treat her properly. She stayed with the complainant in the complainant's house for about five months. That means in a period of two years, the deceased had spent nearly eight months in her parents house. 21. PW.5 has further stated that his sister was telling him that under the influence of in-laws the accused No.1 was beating her and in-laws were harassing his sister. So far as the illtreatment by the in-laws is concerned that is not at all made out in the complaint. 21. PW.5 has further stated that his sister was telling him that under the influence of in-laws the accused No.1 was beating her and in-laws were harassing his sister. So far as the illtreatment by the in-laws is concerned that is not at all made out in the complaint. He could not say when he took the two panchas to the house of accused no.1. The accused has also come to take back the deceased. It is also admitted that the accused No.3 has married. But it is deposed that she was residing along with her husband in the house of complainant. It is also admitted that accused No.4 has got three children. After the death of his sister, child is in the house of complainant only. It is admitted by him that after the delivery, his sister was suffering from stomach pain and she was shown to a Doctor and they have also shown to a Doctor with regard to stomach pain. However, it is denied that on account of stomach pain his sister committed suicide. The admission made out probability if not proof, that is sufficient to raise doubt also regarding cause of commission of offence. 22. PW7 is the brother of PW5 the complainant and also the deceased. According to him, the accused were caused cruelty to the deceased as she was not doing work properly. The deceased was use to tell this fact to him over phone and also to her parents whenever she visit there. He does not say that the deceased was beaten by the accused. He has not stated specifically who has given ill-treatment or harassment to the deceased. 23. Though PW5 stated that in-laws did not come to see the child that was born to the deceased. But, according to witness the father-in-law and mother-in-law came to see the child. It is admitted that accused No.3 come to take away the deceased and child. It is admitted that accused No.1 has got two sisters. Accused No.4 was already married before the marriage of accused No.1. She was married to a person who is residing in Gokak, does not know the name of her husband. But, denies that she is residing in her husband's house. He admitted that the deceased was doing house hold work as well as agricultural work in the husband's house. Accused No.4 was already married before the marriage of accused No.1. She was married to a person who is residing in Gokak, does not know the name of her husband. But, denies that she is residing in her husband's house. He admitted that the deceased was doing house hold work as well as agricultural work in the husband's house. He also admitted that the deceased was suffering from stomach pain after the birth of the child. Therefore, the above said evidence of PW5 and 7 does not establish the ingredients of Section 498A and 306 of IPC. To establish, to commit the offence under Section 306 of IPC there must be cogent evidence of allegation Acts which would be called an abatement, caused to the deceased to commit suicide. 24. Learned counsel for the appellant has also relied upon the following two authorities. 25. The first authority 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. Further the Hon'ble Supreme Court has held as under: "In the absence of direct evidence the prosecution has relied upon Section 113-A of the Evidence Act, under which the court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498-A of the IPC. Under Section 113-A of the Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband or any relative of her husband had subjected her to cruelty. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 wherein this Court observed: This provision was introduced by the Criminal law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression 'may presume' suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to 'all the other circumstances of the case' . A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression -'the other circumstances of the case' used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrefutable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'may presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which says - 'Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. " On such slender evidence, therefore, we are not persuaded to invoke the presumption under Section 113-A of the Evidence Act to find the appellant guilty of the offence under Section 306 IPC." 26. In the second authority in the case of Giridhar Shankar Tawade V/s. State of Maharashtra, (2002) 5 SCC 177 , it is held as under: "C Evidence Act, 1872 - S.32 - Dying declaration - Though corroboration of evidence of dying declaration is not essential but it strengthens the evidentiary value of the declaration - Court should be cautious in accepting the dying declaration as a trustworthy piece of evidence. D. Constitution of India - Art.136 - Criminal appeal - Supreme Court can reappreciate the evidence in case of misappreciation of evidence by the courts below which led to utter perversity The basis purport of Section 498-A is to avoid "cruelty" which is defined by attributing a specific statutory meaning attached thereto. Two specific instances have been taken note of in order to ascribe a meaning to the work "cruelty" as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz.(i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Exlanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498-A. Section 498-A is attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman. Admittedly, the finding of the trial court as regards the death negated suicide with a positive finding of accidental death. If suicide is left out, then in that event question of applicability of Explanation (a) would not arise - neither the second limb to cause injury and danger to life or limb or health would be attracted. In any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498-A and not dehors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498-A. 17. In any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498-A and not dehors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498-A. 17. As regards the core issue as to whether charges under Sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither are we inclined to do so, but in order to justify a conviction under the later provisions there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereon - the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute: even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl 's in-laws' place and requests the husband to treat her well - at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498- A. Demand for dowry has not seen the light of day." 27. On perusal of the above said authorities, I find that they are applicable to the present case with all force. Rest of the facts, conducting of inquest panchanama, spot ponchanama and subjecting the dead body for postmortem examination etc., and investigation done by the Investigation Officer etc., are not seriously disputed. 28. Unless and until the evidence of PW5 and 7 perused, that evidence alone does not sufficient to prove the case of the prosecution. Hence, on re appreciation evidence on record, I find that the prosecution has not proved the guilt of the accused beyond any reasonable doubt. There is roping of the in-laws and accused No.1, in such cases the evidence has to be meticulously appreciated. Merely because, having life is lost should not be a ground to believe whatever they say and convict the accused persons. There is roping of the in-laws and accused No.1, in such cases the evidence has to be meticulously appreciated. Merely because, having life is lost should not be a ground to believe whatever they say and convict the accused persons. Hence, I answer point Nos. 1 and 2 in the negative and point No.3 in the affirmative. 29. The appeal filed by the appellants accused as against judgment and order of conviction and sentence passed by the V Additional Sessions Judge, Belgaum in SC No.24/2010, dated 11.03.2011 is hereby allowed. The order of conviction and sentence against the accused Nos.1 to 4 for the offence punishable under Section 498(A) and 306 r/w Section 34 of IPC is hereby set aside. Appellants/Accused No.1 to 4 are acquitted of the charges leveled against them. 30. Fine amount, if any, paid by the accused, shall be refunded to them. Bail bond shall continue for a period of six months or till the expiry of the appeal period whichever is later. Send the copy of this judgment along with LCR to the trial Court.