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2019 DIGILAW 1350 (KAR)

Dayanand Nagu Marate v. State Of Karnataka

2019-06-19

BELLUNKE A.S.

body2019
JUDGMENT : Bellunke A.S., J. This is an appeal preferred by the accused who has been convicted by the Fast Track Court, Sisri in S.C.No.25/2010, dated 17.01.2011 for the offence punishable under Sections 498-A, 306 of IPC. The accused has been sentenced to undergo simple imprisonment for a period of two years and to pay fine of Rs.2,000/- for the offence under Section 498-A of IPC, in default, to undergo simple imprisonment for a period of three moths. The accused is also sentenced to undergo simple imprisonment for a period of five years and to pay fine of Rs.5,000/- for the of fence under Section 306 of IPC in default, to undergo simple imprisonment for a period of six months. 2. The brief facts of this case for the purpose of this appeal are as under: The accused is the husband of one Geeta. They were married about eight years back prior to the date of incident alleged in this case. After the marriage, the accused used to come to the house everyday by consuming alcohol and used to ill-treat the said Geeta by saying that she is not preparing the food properly and she has not given birth to child. Therefore, on account of the cruelty caused by the accused a panchayat was also held by the complainant with the help of the elders in the village. The accused was adviced to treat his wife properly and lead happy married life. That on 25.11.2009 at about 10.30 p.m., complainant received information that his daughter is missing since night and they are searching for her. Then immediately he informed the elders of his village and along with them, he went to the village of his son-in-law at Jadigadde. He questioned the father of the accused about missing of his daughter. He told that yesterday night at 10.00 p.m. there was some quarrel between the husband and wife and in the morning when he asked the accused, he told that she quarreled with him and went away and he do not know where she has gone. On 25.11.2009 they received information that dead body of the said Geeta is lying nearby a forest area. Accordingly, they went there and found that foul smell is coming and suspected that she committed suicide by consuming poison. On 25.11.2009 they received information that dead body of the said Geeta is lying nearby a forest area. Accordingly, they went there and found that foul smell is coming and suspected that she committed suicide by consuming poison. Therefore, the complainant filed a compliant alleging that the accused is responsible for the death of his daughter. Based on that complaint, a crime came to be registered. The Investigating Officer conducted investigation. Thereafter, the charge sheet was filed against the accused for the offence punishable under Sections 498-A and 306 of IPC before the Sessions Court. The accused was arrested during the course of investigation and subsequently he has been enlarged on bail. 3. Learned Magistrate took cognizance of the alleged of fences and committed the case to the Sessions Court for trial as the offence punishable under Section 306 of IPC is exclusively triable by the Sessions Court. The presence of the accused was secured. After hearing the prosecution and accused, charge came to be framed for the offence punishable under Sections 498-A and 306 of IPC. Accused pleaded not gui lty. Therefore, learned Sessions Judge held trial of the case. After hearing both the sides and on appreciation of evidence on record, learned Sessions Judge came to the conclusion that the offence punishable under Sections 498-A and 306 of IPC are proved against the accused beyond any reasonable doubt. Consequently, passed the impugned judgment of conviction and sentence as stated above. The said judgment has been questioned by the appellant on following grounds: "The impugned order passed by the court below is neither sustainable in law nor on facts of the case. The judgment of the trial court based on assumptions. Trial court passed judgment on imaginary ground without making proper observations on the oral and documentary evidence on record. the evidence PWs-1 and 7 suffers from contradictions, the trial court rejected those contradictions. Trial court has not properly appreciated the evidence on record and that has lead to miscarriage of justice. Trial court has not properly considered the evidence given by the father of the deceased and only independent witness PW-7. Therefore, that evidence the offence for the offence punishable under Sections 498-A and 306 of IPC were not at all proved. Therefore, the judgment of conviction and sentence passed by the Sessions Judge is illegal. Trial court has not properly considered the evidence given by the father of the deceased and only independent witness PW-7. Therefore, that evidence the offence for the offence punishable under Sections 498-A and 306 of IPC were not at all proved. Therefore, the judgment of conviction and sentence passed by the Sessions Judge is illegal. The punishment imposed by the Sessions Court is also excessive and disproportionate to the alleged offence said to have been committed by the accused.." Hence, the appellant has prayed to allow the appeal by setting aside the judgment of conviction and sentence imposed on the appellant. 4. Heard the arguments on both the sides. 5. Learned counsel for the appellant submitted that death of the deceased by consuming poison by herself is not in dispute. Spot panchanama and inquest panchanama and conducting of postmortem are also not disputed. The only evidence that is available on record is that PW-1 who is father of the deceased and PW-7 who is so called independent witness. Learned counsel further submitted that even after considering the evidence of PWs-1 and 7 who have supported the case of the prosecution absolutely ingredients of Sections 498-A and 306 of IPC are not at all proved beyond any reasonable doubt. Learned counsel drew my attention to the certain admissions made by PWs-1 and 7 in their cross-examinations. The explanation of accused is that the deceased committed suicide for her own cause and the accused is not responsible for the same. The deceased was adamant in nature. Though they were residing separately from the parents. Because of her nature, she has committed suicide. Therefore, the counsel prayed to allow the appeal and acquit the accused. 6. As against this, learned H.C.G.P. for the State submitted that PW-7 is relative to both accused and as well as the complainant. Therefore, there are no grounds to disbelieve his evidence. From the evidence of PWs-1 father of the victim the offence alleged against the accused are proved. If the evidence of this witness is disbelieved then the accused has to explain under what circumstance his wife committed suicide. Therefore, learned H.C.G.P. prayed to dismiss the appeal and confirm the judgment of the trial Court. 7. From the evidence of PWs-1 father of the victim the offence alleged against the accused are proved. If the evidence of this witness is disbelieved then the accused has to explain under what circumstance his wife committed suicide. Therefore, learned H.C.G.P. prayed to dismiss the appeal and confirm the judgment of the trial Court. 7. On the basis of the above said pleadings and rival contentions, the following points would arise for consideration: (1) "Whether the prosecution has proves before the trial Court beyond any reasonable doubt that the accused had caused cruelty to the deceased and thereby caused abetment to the deceased to commit suicide and has committed of fence punishable under Sections 498-A and 306 of IPC ? (2) Whether the prosecution proves that the judgment of the trial Court is against to the facts and evidence on record and is perverse, capricious and therefore, liable to be set aside? (3) What order?" 8. My finding on the above points are as under for the reasons stated herein: On hearing both the sides and after going through the records, I find that the judgment of conviction and sentence appears to have been passed relying on the evidence of PWs-1 and 7 alone apart from the evidence of Investigating Officer. To convict a person for the of fence punishable under Sections 498-A and 306 of IPC, the ingredients have to be proved beyond any reasonable doubt. The law on this point is well settled in the case of Rajbabu and another v. State of Madhya Pradesh, (2008) 17 SCC 526 wherein the Hon'ble Apex Court has 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 113A of IPC is also elaborately discussed. In the instant case, the prosecution neither established the cruelty caused by the accused to the deceased nor proved the abetment to commit suicide. Therefore, mere allegation ofill-treatment or calling the acts of accused as cruelty is not sufficient. In the said judgment, the ingredients required to apply presumption under Section 113A of IPC is also elaborately discussed. In the instant case, the prosecution neither established the cruelty caused by the accused to the deceased nor proved the abetment to commit suicide. Therefore, mere allegation ofill-treatment or calling the acts of accused as cruelty is not sufficient. Therefore, I find that the evidence before the trial Court has to be examined meticulously to find out whether the offences are proved beyond any reasonable doubt. In the evidence of PW-1 who is the father of the deceased has stated that the accused was asking his daughter to bring something from her parents' house and as she did not beget children, he used to beat her occasionally. Except these two lines of evidence stated by the PW-1, absolutely there are no circumstances explaining as to why the unbearable cruelty defined under Section 498-A was caused. Mere quarrel between the husband and wife on one or two occasion alone cannot be taken into consideration that it is a cruelty within the meaning of Section 498-A of IPC. Cruelty means not a domestic quarrel or abusive behavior. It should be something which should make the victim to drive her to take extreme steps of causing danger to her life or limb. Therefore, on these two bald statements, it cannot be said that the prosecution has proved the ingredients of Section 498-A of IPC. The version of the complaint at Ex.P-1 is typed one. A detail narration of facts of cruelty is not at all stated in the evidence. The nature of the property or money demanded by the accused, the quantum of money or any kind of article or valuable which the accused was alleged to have been demanding are not at all stated either in the complaint at Ex.P-1 or in the evidence of PW-1. In fact in the complaint, it is not specifically alleged that the accused was causing cruelty to the daughter of the complainant on the ground that she has not brought anything from her parents' house. What was the nature of admission made by the accused to cause cruelty for not having met the demand is not forthcoming from the complaint or from the evidence of PW-1. 9. What was the nature of admission made by the accused to cause cruelty for not having met the demand is not forthcoming from the complaint or from the evidence of PW-1. 9. Now coming to the cross-examination of PW-1, it is specifically admitted that the father, mother and brothers of the accused were earlier residing together along with deceased when the deceased got married. After three years of marriage, the deceased did not beget any child. Therefore, the complainant also got examined his daughter by Dr. Kanni to find out whether his daughter will beget any child in the near future. It is specifically admitted in the evidence of PW-1 that since his daughter did not live happily with the father and mother of the accused, the accused made a separate house and living with the deceased separately three years prior to the incident. He did not know as to whether in the separate house also his daughter did not cooperate with her husband. It is important to note that the suggestion is not denied. It is further stated that accused had told him that his daughter is not behaving with him properly. He admits that he has not given any complaint against the accused having beaten his daughter. With these admissions, I find that the evidence of PW-1 cannot be said to have proved the ingredients of Section 498-A of IPC. 10. Pw-7 is the only independent witness. The version stated by PW-7 is nothing but what he has heard from the complainant. Therefore, it would be hearsay evidence. If the evidence of PW-1 does not prove the ingredients of Sections 498-A and 306 of IPC then the evidence of PW-7 cannot be taken support to hold that the aforesaid offences are proved beyond any reasonably doubt. At the most, his evidence would be relevant if the evidence of PW-1 is believed. When PW-7 went to spot along with the complainant, the father of the accused told that there was a small quarrel between the husband and wife and therefore, the deceased had left the house. After the search, they found the dead body of Geeta and she said to have committed suicide. That would go to show that the deceased might have been over sensitive lady. For every domestic quarrel, the husband or in-laws cannot be held responsible. 11. After the search, they found the dead body of Geeta and she said to have committed suicide. That would go to show that the deceased might have been over sensitive lady. For every domestic quarrel, the husband or in-laws cannot be held responsible. 11. In the cross examination of PW-7, he admitted that the accused had told his father-inlaw that his wife is not behaving properly and she is not adjusting with him. Therefore, he had requested the complainant to advice her. It is also admitted that one year after the marriage, the accused got separated from his father, mother and brother. He do not know that the deceased had committed suicide on account of adamant nature and not on account of any torture given by the accused. Admittedly, he had not seen anything personally. Therefore, if the evidence of PWs-1 and 7 are not believed then absolutely there is no evidence to prove that the accused has committed offence punishable under Sections 498-A and 306 of IPC. Therefore, on re-appreciation of the evidence on record, it is found that the conviction of the accused for the aforesaid offences and the sentence of imprisonment, fine imposed by the trial Court are not sustainable in law and facts and evidence on record. Therefore, it is liable to be set aside. Hence, I answer the point No.1 in the negative and point No.2 in the affirmative. Accordingly, I pass the following: ORDER (1) The appeal filed by the appellant accused is hereby allowed. (2) The judgment of conviction and sentence passed by the learned Sessions Judge, FTC, Sisri in S.C.No.25/2010 dated 17.01.2011 is hereby set aside. The accused is acquitted of all charges leveled against him. (3) The fine amount paid by the accused shall be refunded to him. (4) Bail bonds and surety bonds shall continue for a period of six months or till expiry of appeal period, whichever is later. (5) Send back the records to the trail Court along with a copy of this judgment.