Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1578 (KAR)

Sunil Appayya Matapathi v. State Of Karnataka

2019-07-04

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. This appeal is filed by the appellants/accused Nos.1 to 3 being aggrieved by the judgment of conviction and order on sentence passed by the V-Additional Sessions Judge, Belgaum in S.C.No.144/2009 dated 17.06.2010. 2. I have heard the learned counsel for appellants/accused persons and the learned High Court Government Pleader for respondent-state. 3. During the pendency of the appeal, appellant No.2 expired and case as against him was abated and his name was ordered to be deleted as per the order of this Court dated 30.05.2019. 4. The case of the prosecution in brief is that the daughter of the complainant was given in marriage to accused No.1 about 1= years prior to the alleged incident. They have not begotten any child. After the marriage, deceased had come to the house of the complainant since her husband/accused No.1, fatherin- law/accused No.2 and mother-in-law/accused No.3 were ill-treating her to bring dowry. They also used to insist her to get mutate the site standing in the name of complainant to the name of her husband/accused No.1. It is further alleged that the complainant and his wife by consoling the deceased used to tell her that these are all family events and they told her that they will advise the petitioners/accused persons through elders and also advised them in this regard. In spite of this, about two months prior to the date of incident, deceased Meenakshi came to the parental house stating that the ill-treatment given by her in-laws is intolerable. Thereafter, on many occasions, the complainant requested accused Nos.2 and 3 to take his daughter back to their house, but they did not turned up. In turn they replied that if a site and amount is given, they will take the daughter of the complainant to their house. Under the said circumstances, on 20.03.2019, at about 2.00 p.m., when the family members of the complainant had gone to their land, the deceased committed suicide by pouring kerosene on her body and lit fire. After coming to know the said fact, the complainant and his family members rushed to the house and saw the dead body, which was completely burnt. On the same day, complaint was registered. On the basis of the complaint, a case has been registered and after investigation, a charge sheet came to be filed against the appellants/accused Nos.1 to 3. After coming to know the said fact, the complainant and his family members rushed to the house and saw the dead body, which was completely burnt. On the same day, complaint was registered. On the basis of the complaint, a case has been registered and after investigation, a charge sheet came to be filed against the appellants/accused Nos.1 to 3. Matter was committed to the Sessions Court and the Court below took cognizance of the offences and secured the presence of the accused persons. Thereafter, after hearing, charges were framed, read over and explained to the accused persons. Accused pleaded not guilty and claimed to be tried and as such, trial was fixed. In order to prove its case, the prosecution got examined in all 11 witnesses as P.W.1 to P.W.11, got marked 9 documents as Ex.P.1 to Ex.P.9 and two material objects as M.O.1 and M.O.2. In order to prove their defence, the accused persons did not choose to lead evidence on their behalf. Thereafter, statement under Section 313 of Cr.P.C. was recorded by putting incriminating evidence as against accused persons. They denied the same and the case was posted for arguments. After hearing the learned Public Prosecutor and the learned counsel for accused persons, the Trial Court has come to the conclusion that there is a sufficient material to substantiate the case of the prosecution and as such, the accused persons were convicted for the offences punishable under sections 498-A and 306 of IPC. Challenging the legality and correctness of the said judgment of conviction and order on sentence, the appellants are before this Court. 5. It is the submission of the learned counsel for appellants/accused persons that the deceased died in the house of her parents. The deceased, two months prior to the incident, went to her parents house and was residing their. Though it is contended in the complaint and the evidence of P.W.1 that there was ill-treatment and harassment for demand of dowry and to transfer the site, no complaints have been filed. Even accused No.1 has not gone to the house of the complainant soon before the alleged incident. It is further submitted that accused No.3 is the sister of the complainant and they are relatives. Even accused No.1 has not gone to the house of the complainant soon before the alleged incident. It is further submitted that accused No.3 is the sister of the complainant and they are relatives. The complainant came to the house of the accused persons when there was a flood and at that time, a proposal of marriage between the daughter of the complainant and accused No.1 was put before them and marriage was performed. It is further submitted that there is no ill-treatment or harassment soon before the death. It is further submitted that if there is no cruelty made by the accused persons, then presumption under Section 113(b) of the Evidence Act does not arise at all. It is his further submission that consistently all the witnesses have admitted in their evidence that the deceased was ever willing to go back and join the house of her husband, which shows that there was no ill-treatment and harassment caused to the deceased by them. If really there was an ill-treatment or harassment as contended by the complainant, then the deceased ought not to have stated that she was willing to go back to the house of her husband/accused No.1. It is his further contention that in order to attract the provisions of Section 306 of IPC, there must be instigation or abatement to commit offence and the abatement must be as contemplated in the definition under Section 107 of IPC. It is his further submission that before holding the accused persons guilty of the offence under Section 306 of IPC, the Court has to scrupulously examine the facts of the case and assess the entire evidence placed before it and find out as to whether the cruelty or harassment had left the victim to no other alternative but to put an end to her life. In order to substantiate his arguments, he has relied upon the decision of this Court in the case of State by Sanjayanagar Police Station, Bangalore vs. Deepak Kumar and others, (2016) 2 KCCR 1838 (DB). It is his further submission that the entire material has to be scrutinized in order to come to a conclusion that the deceased had committed suicide only because of ill-treatment and harassment caused by the accused persons. It is his further submission that the entire material has to be scrutinized in order to come to a conclusion that the deceased had committed suicide only because of ill-treatment and harassment caused by the accused persons. If no such evidence is there and the evidence is vague and contrary to each other, then the benefit of doubt has to be given to the accused persons. In order to substantiate his arguments, he has further relied upon the decision of this Court in the case of Sri. Ningachari and another vs. State by K.R.Pete Police Station and others in Criminal Appeal No.1378/2012 dated 30.05.2018. It is his further submission that the death of the deceased itself clearly goes to show that the entire body was burnt. If it is a suicidal burn, question of burning entire body does not arise at all, which creates a doubt in the case of the prosecution. On these grounds he prayed to allow the appeal and acquit the appellants/accused persons. 6. Per contra, the learned High Court Government Pleader has vehemently argued and contended that the death of the deceased took place within 1= years after her marriage with accused No.1 and even the complaint and other material clearly show that there was a demand for dowry and that the accused/appellants were insisting the deceased to get mutate the site standing in the name of the complainant in favour of accused No.1. It is his further submission that within a short span of time she was driven out of the house of accused persons, which itself shows that there was ill-treatment and harassment by the accused persons. It is his further contention that the accused persons have ill-treated the deceased and a panchayat was also convened in this behalf to advise the accused persons. In spite of that, there was no improvement and as such the deceased committed suicide by pouring kerosene on herself and lit fire. The complaint has also been lodged on the same day. There is no question of concoction and creating the complaint after deliberation. It is his further contention that the appellants/accused persons have taken inconsistent stand by contending that she has been murdered earlier and thereafter the complainant and other persons have poured kerosene on the dead body and lit a fire, which itself shows that the appellants-accused persons have not come to the Court with clean hands. It is his further contention that the appellants/accused persons have taken inconsistent stand by contending that she has been murdered earlier and thereafter the complainant and other persons have poured kerosene on the dead body and lit a fire, which itself shows that the appellants-accused persons have not come to the Court with clean hands. It is his further submission that the Court below, after considering the material facts and circumstances, has come to conclusion that there was ill-treatment and harassment, due to which the deceased committed suicide by pouring kerosene on her body and lit a fire. There are no good grounds to interfere with the order of the Trial Court. The order of the Trial Court deserves to be confirmed. On these grounds, prayed to dismiss the appeal. 7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records. 8. On close reading of the records they show that the prosecution has got examined 11 witnesses as P.W.1 to P.W.11. 9. P.W.1 is the complainant and the father of the deceased Smt. Meenakshi. In his evidence, he has deposed that after the marriage, his daughter was sent to lead marital life with accused No.1 in his house. In that house, accused No.1 to 3 were also staying. When the daughter of the complainant was staying there, the accused persons used to subject her to ill-treatment and harassment by stating that the father of the deceased has to transfer the site in the name of accused No.1 and also used to demand additional dowry. Only after 15 days of marriage, the accused No.3 brought the deceased to her parents' house and left there. Thereafter, she was again sent to the house of accused persons, but the accused persons again started ill-treating and harassing her, due to which she again came back to her parental house and started staying there. At that time, the alleged incident took place. He has further deposed in his evidence that the deceased was not willing to go to the house of accused persons and the brother of accused No.1 was sent to fetch the deceased to the house of accused persons. As the deceased was not willing to go back, she did not go and on the next day, she poured kerosene on herself and lit fire and died. As the deceased was not willing to go back, she did not go and on the next day, she poured kerosene on herself and lit fire and died. He has also deposed regarding the filing of the complaint as per Ex.P.1 and drawing of Mahazar as per Ex.P2 and P.3. 10. During the course of his cross-examination he has admitted that in the complaint given by him, he has not mentioned that the accused persons had come to call her back. It is further elucidated during the course of his cross-examination that the deceased used to tell that she was willing to go to the house of accused persons. Other suggestions, which have been made, have been denied. 11. P.W.2 is a pancha witness to Ex.P.4 and Ex.P.5 Mahazar. 12. P.W.3 is the uncle of deceased and brother of P.W.1. In his evidence, he has deposed that for about 2- 3 months after the marriage, the accused persons looked after the deceased well and thereafter started ill-treating and harassing her. When she came back to her parents' house, she told that the accused are insisting to transfer the site in their name and she used to tell that they are subjecting her to ill-treatment and harassment. He has further deposed that he has advised accused persons in this behalf, but the deceased was left in the house of P.W.1. During the course of his cross-examination, he has deposed that for having ill-treated the deceased, no police complaint has been registered and on the alleged date of the incident they had been to field. The other suggestions put by the learned counsel for accused persons have been denied. 13. P.W.4 is an independent witness, who is said to be a witness for holding panchyath regarding the ill-treatment and harassment by the accused persons on the deceased, but he has not supported the case of the prosecution and he has been treated as hostile. Even during the cross-examination of the said witness, nothing has been elucidated from his mouth. 14. P.W.5 is the wife of P.W.1 and mother of the deceased. In her evidence she has reiterated the evidence of P.W.1 and she has also admitted the fact that before the death of deceased, no complaints have been registered before the police for ill-treatment and harassment caused to the deceased by the accused persons. 15. 14. P.W.5 is the wife of P.W.1 and mother of the deceased. In her evidence she has reiterated the evidence of P.W.1 and she has also admitted the fact that before the death of deceased, no complaints have been registered before the police for ill-treatment and harassment caused to the deceased by the accused persons. 15. P.W.6 is a constable, who carried the dead body for postmortem and after postmortem handed over the same to the relatives of the deceased. 16. P.W.7 is the investigating officer who conducted further investigation and filed charge sheet. 17. P.W.8 is the doctor, who conducted autopsy on the body of the deceased and issued postmortem report as per Ex.P.7. 18. P.W.9 is the pancha witness to inquest mahazar, which is marked as Ex.P.8. 19. P.W.10 is the Tahsildar, who was present at the time of drawing the inquest mahazar/Ex.P.8. 20. P.W.11 is the PSI, who registered the case and conducted investigation. In his cross-examination, he has deposed that during the course of investigation it has not come on record that prior to deceased lit on fire and ablaze, there was no instigation to commit the alleged offence. Except that, nothing has been elucidated from his mouth. 21. The learned counsel for appellants/accused persons has mainly raised two questions. First one is soon before the death there was no ill-treatment or harassment as contended by the complainant and the second one is the ingredients of Section 306 of IPC have not been satisfied. 22. From the above evidence discussed by me, though the complainant/P.W.1, P.W.5/mother of the deceased and P.W.3/uncle of the deceased have deposed with regard to ill-treatment and harassment, but the independent witness P.W.4 has not supported the case of the prosecution and turned hostile. When the testimony of interested witnesses is the only evidence, then under such circumstances the Court has to scrutinize the said evidence scrupulously and carefully. On close reading of the contents of the complaint/Ex.P1 shows that there is no consistency. Though it is contended in the complaint that there was a demand for dowry, but no amount has been specifically stated regarding what was the amount demanded, where and how it has been demanded. On close reading of the contents of the complaint/Ex.P1 shows that there is no consistency. Though it is contended in the complaint that there was a demand for dowry, but no amount has been specifically stated regarding what was the amount demanded, where and how it has been demanded. The another contention of the complainant is that the accused persons were insisting the deceased to get transfer the site in the name of accused No.1, but in order to substantiate the said fact that the complainant is having a site in his name and it was vacant site, no documents have been produced before the Court by the prosecution. In the absence of the said material, which is crucial to the case of the prosecution, it cannot be inferred that there was ill-treatment and harassment made by the accused persons on the deceased for transfer of the said property in the name of accused No.1. For the reasons best know to the prosecution, the said document has not been secured and produced before the investigating officer during the course of investigation. 23. Be that as it may, even it is an admitted fact that the deceased came to the house of the complainant two months prior to the alleged incident and started residing there. At that time, accused Nos.1 to 3 did not come to the house of the complainant soon before the death of deceased and there was no specific condition that the accused persons will allow the deceased to come and reside with them only after getting transfer of the property in the name of accused No.1. On the contrary, the evidence shows that the deceased was ever willing to go and join in the house of accused persons to lead marital life with accused No.1. When the deceased herself was willing to go to the house of accused persons to lead marital life with accused No.1, it shows that there was no ill-treatment and harassment by the accused persons on the deceased. Though the learned High Court Government Pleader has contended in his arguments that it was the condition precedent on the deceased that only after transfer of the property in favour of accused No.1 they will take her back and as such, she was staying in the house of her parents, but in order to substantiate the said fact, no material has been placed. Even the evidence shows that accused no.1 has sent his brother to bring back the deceased. Even it is not the case of the prosecution that when he came to the house of the complainant, demand for dowry or transfer of the site was made. In the absence of such material, Court cannot come to the conclusion that there was ill-treatment and harassment soon before the death of deceased for transfer of site. Under the said facts and circumstances, the contention of the prosecution that soon before the death of deceased there was ill-treatment and harassment for transferring the property in the name of accused No.1 and the deceased committed suicide by pouring kerosene on herself and lit a fire cannot be accepted. When once the prosecution fails to prove the fact that it is because of the ill-treatment and harassment made by the accused persons, the deceased committed suicide by pouring kerosene on herself and lit a fire, then there arises no question of drawing a presumption under Section 113(b) of the Evidence Act that it is a dowry death. 24. The second contention taken up by the learned counsel for accused persons is that the evidence placed before the Court does not constitute cruelty and harassment. On examination of the facts and entire evidence shows that it has not been substantially proved by the prosecution that the said cruelty and harassment has let the deceased to put an end to her life. It is laid down by this Court in the case of State by Sanjaykumar Police Station Bangalore (State supra) the Court must scrupulously examine the facts of the case and cease the entire evidence placed before it to find out whether the cruelty and harassment had left the victim to no other alternative than to put an end to her life and that will be the factor to show that there was an instigation to commit suicide. But in the instant case on hand, no such material has been placed before the Court to show that the deceased left with no other alternative chosen to put an end to her life. Even no such serious ill-treatment and harassment has been caused to the deceased as per the evidence which has been lead in the behalf. But in the instant case on hand, no such material has been placed before the Court to show that the deceased left with no other alternative chosen to put an end to her life. Even no such serious ill-treatment and harassment has been caused to the deceased as per the evidence which has been lead in the behalf. If really there was such an ill-treatment and harassment as contended so as to go to the extent of putting an end to the life, then under such circumstances, the Panchayath could have been held in this behalf. In the absence of such material, it cannot be held that it is because of the instigation and abatement, the deceased committed suicide by pouring kerosene on her. For the purpose of brevity, I quote para no.72 and 73 of the said decision, which reads as under: "72. In order to convict a person for the offence punishable under Section 306, I.P.C., there must be instigation to commit the offence or aiding in commission of the offence. Therefore abetment must attract the definition found in Section 107, I.P.C. Attempt to commit suicide and abetment to commit suicide are two different offences and stand on a different footing. Before holding an accused guilty of the offence punishable under Section 306, I.P.C., the Court must scrupulously examine the facts of the case and also assess the entire evidence placed before it to find out as to whether cruelty and harassment had left the victim to no other alternative but to put an end to her life. 73. In cases of abetment to commit suicide, there must be proof of direct or indirect acts and incitement to commit the offence. Mere allegation of harassment without there being any positive action on the part of the accused which led or compelled the person to commit suicide, is not sufficient to convict an accused for the offence under Section 306, I.P.C. The person who is stated to have abetted another to commit suicide must have played an active role by way of instigation or by doing some act to facilitate the victim to commit suicide." 25. On going through the said principles of law and evidence which has been produced, the prosecution has not placed cogent and acceptable evidence so as to come to conclusion that it is because of the ill-treatment and harassment the deceased committed suicide by pouring kerosene on herself and lit a fire. The evidence which has been produced is so shaky. It is very vague and inconsistent. No strong evidence has been produced by the prosecution to come to a conclusion that it is only the reason for the suicide of deceased. The prosecution has examined independent witness P.W.4, but he has not supported the case of the prosecution. Even the evidence which is available before the Court is only of the parents and the brother of the complainant. No other independent witness has been examined in this particular behalf. Even there is no material to show that the accused abated the deceased to commit a suicide. Looking from any angle, it appears that the evidence of the prosecution is not trustworthy and reliable so as to come to a conclusion that the accused persons are guilty of the offences. 26. In view of the above, the appeal stands allowed and the judgment of conviction and order on sentence passed by the V-Additional District and Sessions Judge, Belagavi in S.C.No.144/2009 dated 17.06.2010 is set aside and accused Nos.1 and 3 are hereby acquitted of the charges leveled against them. The bail bonds and surety bonds stand cancelled.