Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 675 (KAR)

Mallavva v. State of Karnataka

2021-06-14

MOHAMMAD NAWAZ

body2021
JUDGMENT : Mohammad Nawaz, J. 1. This appeal is preferred assailing the judgment and order of conviction and sentence dated 26.03.2013 passed by the Court of V Addl. Sessions Judge, Belgaum, in SC No. 66/2011, convicting and sentencing the accused/appellants for offence punishable under Sections 498A, 306 read with Section 34 of IPC. 2. Heard Sri. B.S. Kukanagoudar, learned counsel for the appellants, Sri. Praveen K. Uppar, learned High Court Government Pleader and perused the material on record. 3. Brief facts of the case; Complainant Mallavva, wife of Shankarappa Daddeemani is a resident of Belavadi Village. She has two children. Her son by name Eranna is pursuing his studies in Belgaum. Her daughter by name Manjula (deceased) was given in marriage to Nagappa Siddappa Gokak (accused No. 2) about two years prior to the date of incident. She has a male child by name Rahul, aged about 8 months. She was living in her matrimonial house situated at Bailhongal Village, along with her husband, mother-in-law Mallavva (accused No. 1) and sister-in-law Neelavva (accused No. 3). Her sister-in-law was married, but she had left her husband and staying along with her mother. Accused No. 1 was working as an attender in Government Hospital, Belavadi. After her marriage, the deceased was looked after properly for about one month. Thereafter the accused persons started subjecting her to physical and mental cruelty and they were ill-treating her for one reason or the other. When deceased had visited Belavadi, she had complained to her mother about the ill-treatment given by the accused. Even though, the complainant, her husband (PW7) and her elder brother (PW11) had requested the accused not to trouble the deceased, the accused did not stop subjecting her to cruelty. After the birth of the child, deceased requested the complainant not to send her to the matrimonial home. The complainant advised her and requested the accused to look after her properly and sent her to matrimonial house. Accused No. 2 was allotted a quarters in Belavadi. Hence, on 08.12.2010, the deceased along with him went to clean the quarters. They stayed in her mother's house till 12.12.2010 and then returned to Bailhongal. The complainant advised her and requested the accused to look after her properly and sent her to matrimonial house. Accused No. 2 was allotted a quarters in Belavadi. Hence, on 08.12.2010, the deceased along with him went to clean the quarters. They stayed in her mother's house till 12.12.2010 and then returned to Bailhongal. On 13.12.2010, the deceased telephoned and informed that her husband, mother-in-law and sister-in-law are giving trouble telling that the food she has prepared is not proper and she is not good looking and that they will perform another marriage to her husband. She was consoled and advised by the complainant. On 15.12.2010, at about 8.00 a.m., accused No. 2 telephoned and informed over phone that complainant's daughter has committed suicide by hanging. 4. Charges were framed against accused Nos. 1 to 3 for offence punishable under Sections 498-A, 306 read with Section 34 of IPC. The accused pleaded not guilty and claimed to be tried. 5. Before the trial court, the prosecution got examined PW1 to 20 and got marked Exs. P1 to P18 and M.O. 1. 6. The learned Sessions Judge by judgment and order dated 26.03.2013, convicted and sentenced the accused for the charged offences, against which the present appeal is preferred. 7. Learned counsel Sri. Kukanagoudar appearing for the appellants has contended that the evidence and material on record are not sufficient to hold the appellants guilty of the offence for which they are convicted by the trial court. He contends that there is no demand whatsoever at the time of marriage and the marriage was performed in a temple. He submits that the deceased was not interested in the marriage, as she was young and wanted to study. Accused No. 1 was working as a domestic servant and they hail from a very poor family compared to the family of the complainant and they were living in a very small house. The deceased was not used to live in such an environment. He contends that there is no ill-treatment either physically or mentally meted to deceased as alleged. Even otherwise, the evidence adduced by the prosecution witnesses is not sufficient to conclusively hold that the accused have subjected the deceased to cruelty of such a nature which could have driven her to commit suicide. He contends that there is no ill-treatment either physically or mentally meted to deceased as alleged. Even otherwise, the evidence adduced by the prosecution witnesses is not sufficient to conclusively hold that the accused have subjected the deceased to cruelty of such a nature which could have driven her to commit suicide. He further contends that the prosecution has failed to establish the ingredients of Section 306 of IPC and the trial court in a mechanical manner without any valid reasons has convicted and sentenced the appellants for the charged offences and the same has resulted in miscarriage of justice. Accordingly, seeks to allow the appeal. 8. Per contra, the learned High Court Government pleader has contended that there are sufficient material on record in the form of oral and documentary evidence, which clearly establish that the accused were subjecting the deceased to physical and mental cruelty. Unable to tolerate, the deceased has put an end to her life. He submits that the evidence of PWs. 6, 7, 11 and 14 are sufficient to hold that the accused are guilty of the charged offences. He further contends that the trial court having appreciated the entire evidence and material on record and after giving cogent reasons, has rightly convicted the accused and therefore seeks to dismiss the appeal. 9. The marriage of deceased Manjula was performed with Accused No. 2 Nagappa Siddappa Gokak (accused no. 2) on 06.04.2009. She committed suicide in her matrimonial home on 15.12.2010 at about 8.00 a.m., The postmortem examination was conducted by PW18. According to the post mortem report at Ex. P17, the cause of death is due to asphyxia as a result of hanging. 10. The complaint is lodged by the mother of the deceased. PW10 is the scribe. He has stated that after receiving the information, he went to see the dead body. At that time complainant was present and her husband had been to Goa for work. He has stated that as per the say of Smt. Mallavva, he wrote the complaint-Ex. P5. In the cross-examination, it is elicited from him that complainant's husband returned from Goa in the night. At that time, about 40 persons were present and all of them discussed and decided to lodge the complaint. 11. He has stated that as per the say of Smt. Mallavva, he wrote the complaint-Ex. P5. In the cross-examination, it is elicited from him that complainant's husband returned from Goa in the night. At that time, about 40 persons were present and all of them discussed and decided to lodge the complaint. 11. Out of the witnesses examined by the prosecution, PW4, PW5, PW8, PW9, PW12, PW13 and PW17 have not supported the prosecution case and they have been treated hostile. PWs. 4 and 5 are the panch witnesses to Ex. P4 i.e., the recovery of saree-M.O. 1. PW8 is a resident of Belavadi. PW9 is the maternal uncle of the deceased. PWs. 12 and 13 are the residents of Bailhongal Village and PW17 is a distant relative of the accused. 12. The prosecution has mainly relied on the evidence of PWs. 6 and 7, the parents of the deceased, PW11-the brother of PW6, PW14-a resident of Belavadi Village. 13. PW14 has deposed that when the deceased was in her matrimonial house, the accused started troubling her. Hence, the parents of the deceased went and advised the accused. The deceased was informing him about the ill-treatment, whenever she met him. However, he has not stated as to what was the nature of ill-treatment given to her by the accused. In the cross-examination, he has stated that he did not enquire with the deceased about the nature of ill-treatment given to her, but he advised her that she should get along with the accused. 14. According to the prosecution, for about a month after her marriage, the deceased was looked after well by the accused and thereafter all the accused started giving physical and mental harassment to her for one reason or the other. It is not in dispute that there was no demand for money or valuables by the accused at the time of marriage of deceased Manjula with accused No. 2. It is stated that accused No. 3-sister-in-law of the deceased had deserted her husband and she was also staying along with her mother. In the complaint lodged by the mother of the deceased-PW6, it is stated that the accused were ill-treating the deceased for no reason and deceased was telling her not to send her to matrimonial home. It is stated that accused No. 3-sister-in-law of the deceased had deserted her husband and she was also staying along with her mother. In the complaint lodged by the mother of the deceased-PW6, it is stated that the accused were ill-treating the deceased for no reason and deceased was telling her not to send her to matrimonial home. Five months after her delivery, she was taken to her matrimonial home and the accused were requested not to trouble her any more. It is stated that on 08.12.2010, deceased and her husband went to clean the quarters which was allotted to him, as he was working at Government Hospital, Belavadi. Thereafter they stayed in complainant's house for three days and then on 12.12.2010, she returned to Bailhongal. It is stated that on 13.12.2010, deceased informed over phone that the accused are unnecessarily troubling her saying that she do not know how to cook properly and she is not good looking and therefore, they will perform another marriage to her husband. In the complaint, it is not stated that the deceased complained to her mother about any ill-treatment meted to her by her husband or in-laws, when she was in the complainant's house between 08.12.2010 and 12.12.2010. 15. The complainant who is examined as PW6 in her chief-examination has not stated as to the nature of ill-treatment given by the accused to the deceased. She has made an omnibus statement saying that all the accused were ill-treating her daughter. In the cross-examination, it is elicited from her that the deceased studied up to 9th Standard and thereafter, as per her wish, she joined tailoring class. She has stated that when she was six months pregnant, 'seemantham ceremony' (baby shower ceremony) was performed in her matrimonial home and few persons were invited by the accused for the said function. On the next day, she brought her daughter to Belavadi. When her daughter was in the hospital, her mother-in-law was visiting the hospital and her husband was getting food to her. Accused no. 2-her husband got transferred from Bailhongal to Belavadi Government Hospital. About a week prior to the date of incident, he was allotted a quarters and a small function was also arranged by inviting few persons. Thereafter her daughter and her husband went to Bailhongal to bring some household articles. But she received the information regarding her daughter committing suicide. 16. 2-her husband got transferred from Bailhongal to Belavadi Government Hospital. About a week prior to the date of incident, he was allotted a quarters and a small function was also arranged by inviting few persons. Thereafter her daughter and her husband went to Bailhongal to bring some household articles. But she received the information regarding her daughter committing suicide. 16. According to PW7, the accused were telling the deceased that she is not proper and they will perform second marriage to accused No. 2 and this was being informed by his daughter. Thereafter, they went and advised the accused. He has not stated as to what was the nature of ill-treatment given by the accused to the deceased. In the cross-examination, it is elicited from him that his daughter studied up to 9th standard and she wanted to study further, but they discontinued her studies and admitted her to tailoring class. After completing the tailoring class, they performed her marriage. 17. PW11 is the uncle of the deceased. He has deposed that the accused looked after Manjula properly for five to six months and thereafter they started ill-treating her saying that she doesn't cook properly and she is not good looking. He has gone a step further stating that the accused were demanding the deceased to bring money from her parental house, which is not at all stated by PWs. 6 and 7. 18. On a careful perusal of the evidence of prosecution witnesses, it cannot be said that the accused were subjecting the deceased to physical or mental cruelty by any such wilful conduct which is of such a nature as is likely to drive her to commit suicide. According to the above witnesses, the accused persons were unnecessarily ill-treating the deceased for one reason or the other. But they have not clearly stated as to what was the nature of ill-treatment given to the deceased. In the complaint lodged by PW6, she has stated that on 08.12.2010 her daughter visited Belavadi along with accused No. 2 for cleaning the quarters allotted to accused no. 2 and both of them stayed in her house till 12.12.2010. After her daughter returned to Bailhongal, she telephoned to her and told that the accused persons are ill-treating saying that she doesn't know how to cook and she is not good looking. The same is not deposed by PW6 in her evidence. 2 and both of them stayed in her house till 12.12.2010. After her daughter returned to Bailhongal, she telephoned to her and told that the accused persons are ill-treating saying that she doesn't know how to cook and she is not good looking. The same is not deposed by PW6 in her evidence. Hence, the case of prosecution that the accused persons were giving ill-treatment to the deceased saying that she is not good looking and she doesn't know how to cook properly etc., is not corroborated by PW6. 19. The learned counsel for the appellants has contended that when there are general allegations made against the accused regarding ill-treatment given to the deceased, the same cannot be a basis to convict the accused, without there being any concrete evidence to show that the accused were in fact subjecting the deceased to cruelty of that nature which is likely to drive a woman to commit suicide. He has relied on a decision of Hon'ble Apex Court in the case of Pinakin Mahipatray Rawal vs. State of Gujrat reported in (2013) 10 SCC 48 , to contend that to invoke the presumption under Section 113-A of The Indian Evidence Act, the burden of proof of showing that such an offence has been committed by the accused is on the prosecution. In the present case, the prosecution has not discharged the burden that the accused have instigated, conspired or intentionally aided so as to drive the deceased to commit suicide. 20. The learned counsel for the petitioner has also relied on a decision of Hon'ble Apex Court in the case of Gurcharan Singh vs. The State of Punjab reported in 2021 AIR (Criminal) 29 to contend that the ingredients of Section 107 of IPC has not been made out and therefore, the accused cannot be convicted for an offence punishable under Section 306 of IPC. 21. In the aforesaid decision, the Hon'ble Apex Court has held that in order to give the finding of abetment under Section 107 of IPC, the accused should instigate a person either by act or omission or commission and only then a case of abetment is made out. 21. In the aforesaid decision, the Hon'ble Apex Court has held that in order to give the finding of abetment under Section 107 of IPC, the accused should instigate a person either by act or omission or commission and only then a case of abetment is made out. Further, before holding an accused guilty of an offence under Section 306 of IPC, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. In the present case, having scrupulously examined the facts and circumstances of the case and having assessed the evidence adduced, this court is of the considered view that the ingredients of Section 498-A or Section 107 of IPC are not made out and the act of abetment by the accused is not proved and established by the prosecution beyond reasonable doubt. 22. The trial court has come to an erroneous conclusion that on account of cruelty, torture offered by the accused persons, Smt. Manjula committed suicide at her matrimonial home, by applying Section 106 of the Indian Evidence Act, holding that the burden is on the accused persons to explain the circumstances which led her to commit suicide. When the prosecution alleges that the accused have subjected the deceased to cruelty and abetted her to commit suicide and there by committed the charged offences, it is for the prosecution to establish the same. In the instant case, the evidence led by the prosecution are not sufficient to hold the accused guilty of the offences charged against them and the prosecution has failed to establish beyond reasonable doubt, the charges leveled against the accused. 23. For the foregoing reasons, I proceed to pass the following : ORDER Criminal Appeal is allowed. The judgment and order dated 26.03.2013, convicting and sentencing the accused for offences punishable under Sections 498-A, 306 read with Section 34 of IPC, in SC No. 66/2011, on the file of V Addl. Sessions judge, Belgaum is hereby set aside. Accused/appellants are acquitted of the aforesaid charges. Their bail bonds stands cancelled.