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2019 DIGILAW 1368 (KAR)

Chandru Babu Mallapur v. State of Karnataka

2019-06-20

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. This appeal has been preferred by the appellant-accused challenging the Judgment of conviction and order of sentence passed by the V Addl. Sessions Judge, Belagavi in S.C.No.65/2010 dated 25.09.2010, whereunder, the appellant-accused was convicted and sentenced for the offences punishable under Section 498-A and 306 of IPC. 2. I have heard the learned counsel for the appellant and the learned HCGP for the respondent-State. 3. The gist of the complaint is that, the daughter of the complainant Pooja @ Savitri was given in marriage to the appellant-accused on 22.02.2009. Thereafter she started living with the appellant-accused by discharging the matrimonial obligations. One month after the marriage, the parents of the accused and his brothers separated the accused and Pooja from the joint family and as such they were residing in the same house in the upper portion which is called as upstairs or Atta. It is the case of the prosecution that the appellant-accused was working in Mahantesh Medical Stores at Bailhongal. He gradually started ill-treating and harassing the deceased on the ground that, without his consent the marriage has been performed and he used to take meals with his parents without caring the deceased in the home. He also not used to provide food for his wife and also not providing any amount for the maintenance of the home. It is the further case of the complainant that the deceased as and when she visited her parents house, she used to inform about the ill-treatment and harassment by the appellant-accused. It is the further case of the complainant that the complainant with her aunt went to the house of the accused and advised the accused to treat the deceased in a good manner. Inspite of the same, there was no improvement in his attitude and he was not caring to provide food to his wife and not providing any amount and he used to always tell that against his Will, the said marriage has been performed. The complainant was advising her daughter to tolerate the same which is going to be specified and settled. In that light on 19.08.2019 at about 9 p.m. when PW-4 Smt. Gouravva was at Murugod, received a telephone call from Sri. Babu Mallur that her daughter Pooja has consumed the sleeping tablets and she has been taken to the Government Hospital, Bailhongal. In that light on 19.08.2019 at about 9 p.m. when PW-4 Smt. Gouravva was at Murugod, received a telephone call from Sri. Babu Mallur that her daughter Pooja has consumed the sleeping tablets and she has been taken to the Government Hospital, Bailhongal. Immediately, she with her husband rushed to Bailhongal Government Hospital, wherein she was undergoing treatment and when they asked about the matter, she disclosed that for the last 3 days, her husband not cared her and even not provided any amount for the home expenditure and if she asks the money, he was threatening to consume sleeping tables. So being fed up with such an attitude of the appellant-accused, she herself has taken sleeping tablets. As per the advise of the Doctor for better treatment, she was shifted to the Belgaum District Hospital, wherein on 20.08.2019 at 11:30 p.m., she died. On the basis of the complaint a case has been registered. 4. After investigation, a charge sheet has been filed and case was committed to the Sessions Court. After following the procedure laid down under Section 207 of Cr.P.C. the Sessions Court took the cognizance and secured the presence of the accused and he was granted bail and after hearing the learned Public Prosecutor and the learned counsel for the accused-appellant regarding the charge, the charge was framed, read over and explained to the accused. Accused pleaded not guilty and he claims to be tried. 5. In order to prove its case, the prosecution got examined PWs-1 to 13 witnesses and got marked Exs.P1-12. During the course of the defence the accused got marked Ex.D1. Thereafter, the statement of the accused was recorded by putting incriminating material as against them. He denied the same, but he has not led any evidence and he has not produced any documents. After hearing the learned Public Prosecutor and the learned counsel for the accused, the impugned Judgment of conviction and order of sentence was passed. Challenging the legality and correctness of the said Judgment, the appellant-accused is before this Court. 6. I have carefully and cautiously gone through the submissions of the learned counsel appearing for the appellant and the learned HCGP for the respondent-State. 7. It is the submission of the learned counsel for the appellant that the entire complaint and the evidence of PWs-4 & 5 is looked into, there is lot of improvement and contradictions. 6. I have carefully and cautiously gone through the submissions of the learned counsel appearing for the appellant and the learned HCGP for the respondent-State. 7. It is the submission of the learned counsel for the appellant that the entire complaint and the evidence of PWs-4 & 5 is looked into, there is lot of improvement and contradictions. It is his further contention that the case of the prosecution is that, the accused used to tell that the marriage has been performed without his consent and he was taking food with his parents and was not giving any money for the expenses of the house. That will not come within the purview of cruelty as contemplated under Section 498-A and as such, the conviction entered into by the Trail Court is without any basis and no evidence is placed on record. It is his further contention that PWs-6, 9 & 12 are the neighboring witnesses who are residing by the side of the house of the accused. They have not spoken any thing with regard to any ill-treatment or harassment and they have not supported the case of the prosecution. Except the interested testimony of the complainant the mother of the deceased and PW-5 the father of the deceased, no evidence is available. Only on the interested testimony the court below has convicted the accused. It is his further submission that the ingredients of Section 306 have not been established. In order to establish the provisions of Section 306, that there must be an abetment and intention of the accused to aid or instigate or abet the deceased to commit suicide. But no such evidence is suggested or brought on record by the prosecution to show that the accused instigated or abetted to commit suicide by the deceased. Under such circumstances, the provisions of Section 306 are not attracted. In order to substantiate his arguments, he relied upon the decision in the case of M. Arjunan Vs. The State, 2019 (1) KCCR(SN) 26 (SC). It is his further contention that the Investigating Officer who visited the hospital has recorded the statement of the deceased and no case has been registered. In order to substantiate his arguments, he relied upon the decision in the case of M. Arjunan Vs. The State, 2019 (1) KCCR(SN) 26 (SC). It is his further contention that the Investigating Officer who visited the hospital has recorded the statement of the deceased and no case has been registered. PW-4 was present at that time and she has deposed that the deceased was in a condition to speak and the Investigating Officer visited and thereafter, he has recorded the statement, but the said statement is missing why the case has not been registered is not forthcoming. He further submitted that there are so many irregularities in the Investigation conducted by the Investigating Officer. He further submitted that the entire material which has been produced, clearly goes to show that no such offence has taken place as contended by the prosecution. It is his further submission that, Investigating Officer has submitted that he was not from the native of Mundgod but actually when the records have been obtained under the Right to Information Act, it shows that he is from the said place. That itself clearly goes to show that the Investigating Officer by concocting the case has creating the case for the accused to get him convicted. It is his further submission that it is the brain child of the Investigating Officer, who made out a case for the complainant and registered the case and got the conviction. There is no material to come to conclusion that the prosecution has proved the guilt of the accused. On these grounds, he prayed to allow the appeal and to set aside the Judgment of the conviction and order of sentence. 8. Per contra, the learned HCGP vehemently argued and submitted that PWs-4 & 5 are the material witnesses. They have categorically deposed regarding the filing of the complaint and ill-treatment and harassment caused by the appellant-accused. He further submitted that they have also tried to pacify the said aspect by advising the deceased properly. He further submitted that the deceased died within one year after the marriage. Then under such circumstances a presumption has to be drawn under Section 113 of the Evidence Act. It is his further submission that the neighboring witnesses are always in favour of the accused and as such they have not supported the case of the prosecution. He further submitted that the deceased died within one year after the marriage. Then under such circumstances a presumption has to be drawn under Section 113 of the Evidence Act. It is his further submission that the neighboring witnesses are always in favour of the accused and as such they have not supported the case of the prosecution. Merely because they are the parents and the interested witnesses, their testimony cannot be rejected. On close scrutiny of that their evidence is corroborated and there is material to show that it is because of the ill-treatment and harassment caused by the accused, the deceased consumed sleeping tables and ultimately died in the hospital. It is his further submission that the deceased has consumed sleeping tablets in the house of the accused and she has been got admitted in Bailhongal Hospital and there when PW-4 and the Investigating Officer went, she has specifically stated about the ill-treatment, harassment and why she has consumed the sleeping tablets. When the alleged incident has taken place in the house of the accused-appellant, then under such circumstances, the provisions of Section 106 of the Evidence Act is attracted and it is the accused who has to explain under what circumstances she has consumed the sleeping tables and ultimately died. The said fact is within the knowledge of the accused. No such case has been made out by the accused to come to the conclusion that for which reason she has consumed sleeping tablets. In the absence of the explanation and without such material an inference can be drawn that it is because of the ill-treatment and harassment by the accused-appellant, she has consumed the sleeping tablets and died. The Trial Court after considering the material placed on record and after analyzing the same has come to the right conclusion and rightly convicted the accused. There are no good grounds to interfere with the Judgment of the Trial Court. The same is liable to be confirmed and accordingly he prays to confirm the Judgment by dismissing the appeal. 9. In order to prove its case, the prosecution has got examined 13 witnesses. PW-1 is the Inquest Mahazar Pancha. PWs-2 & 3 are the Spot Mahazar Witnesses. PWs.6, 9 & 12 are all natives of Bailhongal and neighbours of the accused person. 9. In order to prove its case, the prosecution has got examined 13 witnesses. PW-1 is the Inquest Mahazar Pancha. PWs-2 & 3 are the Spot Mahazar Witnesses. PWs.6, 9 & 12 are all natives of Bailhongal and neighbours of the accused person. All these witnesses have not supported the case of the prosecution and they have been treated as hostile. Even during the course of cross-examination nothing has been elicited so as to substantiate the case of the prosecution. PW-4 is the mother of the deceased and she is also the complainant. In her evidence, she has deposed that the deceased daughter was given in marriage to the accused and after marriage she was residing in the house of the accused. After one month, they started to reside in upstairs/Atta of the said House and accused was not looking after her daughter well. He was also not working and he was not paying any money to run the house. She further deposed that, whenever her daughter used to come to her parental house, she use to tell about the ill-treatment and harassment by her husband/accused. It is further deposed that he has also taken all the golden ornaments which was given in her marriage. It is also further deposed that, the accused used to harass the deceased that if she do not give the gold ornaments he will consume the sleeping pills. She has also further deposed that after receiving the information they went to the hospital and when they asked the deceased in the hospital she has told that because of the ill-treatment and harassment, she is fed up in the life and has consumed the sleeping pills and subsequently she died. During the course of cross-examination, nothing has been elicited so as to discard her evidence. PW-5 is the father of the deceased. He has also reiterated the evidence of PW-4. PW-8 is the grant mother of the deceased. She has also deposed in the line of PWs-4 & 5. It is the contention of the learned counsel for the accused that the cruelty which has been stated by the prosecution will not come within the purview of cruelty as contemplated under Section 498A and as such the conviction entered into by the trial Court is not having any basis. Section 498A defines the cruelty. Cruelties are of two types. It is the contention of the learned counsel for the accused that the cruelty which has been stated by the prosecution will not come within the purview of cruelty as contemplated under Section 498A and as such the conviction entered into by the trial Court is not having any basis. Section 498A defines the cruelty. Cruelties are of two types. One is mental torture and another one is physical torture. In order to establish the guilt, the prosecution has to establish the willful conduct of the offender and the nature of such conduct was likely to drive a woman either to commit suicide or grave injuries. 10. I am conscious of the fact that, though the definition of 'cruelty' which has been stated in Section 498 Cr.P.C. is not an exhaustive definition, it all depends upon the facts and circumstances of the each case. In order to decide whether one person has treated the other with cruelty, the Court has to see the impact of the complaints, accusations or taunts on a person amounting to cruelty. It all depends on various other factors like the sensitivity of the victim concerned, the social background, the environment, education etc. The mental cruelty varies from person to person depending on the intensity of sensitivity and degree of courage or endurance to withstand such mental cruelty. This proposition of law has been also laid down by the Hon'ble Apex Court in the case of Mohd. Hoshan A.P. and Anr. Vs. State of A.P., (2002) 7 SCC 414 . It is also observed by the Hon'ble Apex Court that the mental and physical cruelty has to be considered and appreciated with reference to the facts and circumstances of the case. 11. Keeping in view the said facts and circumstances, if we peruse the evidence of other witnesses, after the marriage the accused used to tell the deceased that he was not interested to marry her. He never used to join her to take food. He never used to work and he used to take the food along with her parents. No doubt if any act is done for silly reasons, it will not fall within the definition of 'cruelty' as stated under Section 498A of IPC. But if such acts were very unkind and were the acts likely to destroy the normal mind of the deceased, then it can be held as a 'cruelty'. 12. No doubt if any act is done for silly reasons, it will not fall within the definition of 'cruelty' as stated under Section 498A of IPC. But if such acts were very unkind and were the acts likely to destroy the normal mind of the deceased, then it can be held as a 'cruelty'. 12. By going through the evidence of PW4, the mother of the deceased, the complainant and father it clearly goes to show that the accused was not taking the food with the deceased and he used to ill-treat her and he also used to insist her to give the ornaments worn by her and he used to threaten her by saying that, if she is not going to give the ornaments, he will take the sleeping pills. This will amount to willful conduct of the accused and such conduct will definitely drive a newly married women drive to commit suicide. This aspect substantiate with the fact that he used to keep sleeping pills in his house for threatening her. All these material clearly goes to show that the accused used to ill-treat and harass the deceased mentally. Taking into consideration the aforesaid facts and circumstances, I am of the considered opinion that the evidence which has been produced by the prosecution in this behalf clearly goes to show that the accused/appellant was ill-treating and harassing the deceased and even many a times, though the accused has been advised, he has not heeded to the said respect. Under the said facts and circumstances, the Court below has come to a right conclusion that the prosecution has proved the guilt of the accused under Section 498 of IPC. 13. The second contention of the learned counsel for the accused/appellant is that, the ingredients of Section 306 IPC have not been established in order to bring home the guilt of the accused and in order to bring home the guilt of the accused under Section 306 IPC, there must be an abetment and intention of the accused to aid or instigate or abet the deceased to commit suicide. In order to substantiate the said fact, he has relied upon the decision in the case of M. Arjunan quoted supra and also the decision of this Bench in the case of Manjunatha alias Manju Vs. State of Karnataka, 2019 (1) KCCR(SN) 7. 14. In order to substantiate the said fact, he has relied upon the decision in the case of M. Arjunan quoted supra and also the decision of this Bench in the case of Manjunatha alias Manju Vs. State of Karnataka, 2019 (1) KCCR(SN) 7. 14. I have carefully and cautiously gone through the submissions made by the learned counsel and the ratio therein. In order to establish the offence under Section 306 IPC, the prosecution has to prove the intention of the accused to aid or instigate or abet the deceased to commit suicide and the act of the accused insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. But as could be seen from the evidence of the prosecution, the accused never used to talk with the deceased and the prosecution has clearly established that he never used to take the food along with the deceased and he used to come and take the food with his parents and he used to demand for giving the gold ornaments worn by the deceased and use to threaten her by saying, if she is not going to give ornaments he will consume sleeping pills. As held above, it will drive her to commit suicide. 15. Be that as it may. Admittedly the alleged incident has taken place in the house of the accused/appellant. He has not come up with any defence stating that under what circumstances she was compelled to take the sleeping tablets so as to commit suicide. It is well proposed principle of law under Section 106 of the Evidence Act that, if any death takes place within the house of the accused, then the fact of the death of the deceased and the reasons are within the knowledge of the accused. He has to come up with an explanation for what reason the deceased has committed suicide by taking the sleeping tablets or died due to unnatural death. But no such defence or suggestions have been made to any of the witnesses. Under these circumstances, the presumption has to be drawn that it is only because of the ill-treatment and harassment caused by the accused and with his instigation and abetment that has drove the deceased to commit suicide by consuming the sleeping tablets as stated above. But no such defence or suggestions have been made to any of the witnesses. Under these circumstances, the presumption has to be drawn that it is only because of the ill-treatment and harassment caused by the accused and with his instigation and abetment that has drove the deceased to commit suicide by consuming the sleeping tablets as stated above. Though it is contended that there is defective investigation, when other evidence is cogent and reliable mere lapses or defective investigation will not come to the benefit of accused. Hence, the same is rejected. 16. In that light the evidence which has been produced is liable to be accepted. The accused appellant has not made out any good grounds so as to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed and accordingly it is confirmed. 17. I have carefully and cautiously gone through the judgment of the trial Court. The judgment of the trial Court is neither perverse nor illegal so as to set aside the same. The same is confirmed. Accordingly, the appeal is dismissed.