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2023 DIGILAW 1100 (KAR)

State of Karnataka v. Sabanna

2023-09-19

MOHAMMAD NAWAZ, RAJESH RAI K.

body2023
JUDGMENT RAJESH RAI K., J. - The State has preferred this appeal questioning the validity of the judgment dtd. 2/12/2017 passed in S.C.No.41/2011 by the learned Sessions Judge, Yadgiri, wherein the learned Sessions Judge has acquitted the respondents of the offence punishable under Ss. 143, 147, 498-A, 306 r/w 149 of IPC. 2. The brief facts of the prosecution case are as under; The daughter of CW.1-Devamma (PW5) by name Mallamma (now deceased in this case) was married to accused No.1 i.e., respondent No.1 and in their wedlock, three children were born. The first daughter of Mallamma was expired. Thereafter, the deceased Mallamma stayed in the house of PW.5-Devamma for about three months. It is the further case of the prosecution that, about five days prior to the date of incident, the accused No.3 came to the house of PW.5-Devamma and took deceased Mallamma to his house and subsequently accused No.3 informed PW.5 that deceased Mallamma is not at all attending any household work and asked PW.5 to take her back. However, PW.5 requested the accused not to do anything to her daughter and she would come to their house shortly. That on 23/9/2010 at about 4.00 p.m., the accused No.1, informed PW.5 over phone that her daughter died in his house and to take her dead body. Immediately, PW.5 along with PWs.6 to 9 came to S.Hosalli village i.e., to the house of accused No.1 and saw the dead body of her daughter and blood oozing from her mouth and ears, also there were hidden injury marks on the ear as well as on the back of the deceased. Thereby suspecting the murder of deceased Mallamma, PW.5 lodged the complaint against the accused persons i.e., respondents before the Rural Police Station, Yadgiri as per Ex.P4. The same was registered in Crime No.160/2010 against the accused persons for the offence punishable under Ss. 143, 147, 498-A, 302 r/w 149 of IPC by PW.13 as per Ex.P15. During the course of investigation, the Investigating Officer came to know that the accused persons were subjecting the deceased to cruelty on the ground that she was not at all doing any household and agricultural work and they tortured her both physically and mentally. Due to the said harassment meted out by accused persons, she had committed suicide by consuming pesticides on 22/9/2010 at about 10.00 p.m. in the matrimonial home. Due to the said harassment meted out by accused persons, she had committed suicide by consuming pesticides on 22/9/2010 at about 10.00 p.m. in the matrimonial home. Accordingly, after conducting the investigation, the Investigating Officer laid charge sheet against the accused persons before the Committal Court. On committal of the case before the Sessions Court/trial Court, the learned Sessions Judge framed the charges against the accused persons for the aforesaid offences and accused denied the same and claimed to be tried. 3. In order to prove the guilt of the accused before the trial Court, the prosecution in total examined 14 witnesses as PWs.1 to 14 so also got marked 16 documents as Exs.P1 to 16 and 4 material objects as MOs.1 to 4. After conclusion of the evidence of prosecution side, the learned Sessions Judge read over the incriminating evidence of material witnesses to the accused as contemplated under Sec. 313 of Cr.P.C. However, the accused denied the same. The accused did not choose to examine any witnesses on their behalf, but got marked 3 documents as Exs.D1 to D3 i.e., portions of statements of PWs.7 to 9 respectively. The defence of the accused was one of total denial and that of false implication. 4. After assessment of the oral and documentary evidence and also hearing the learned counsel appearing for the parties, the learned Sessions Judge acquitted the accused for the aforesaid offences vide judgment dtd. 2/12/2017 as stated supra. 5. The said judgment of acquittal is challenged under this appeal by the State. 6. We have heard the learned Addl. SPP appearing for the appellant/State so also the learned counsel appearing for respondents/accused. 7. Learned Addl. SPP vehemently contended that the judgment under appeal suffers from perversity and illegality, since the learned Sessions Judge without meticulously examining the evidence available on record, acquitted the accused. As such the impugned judgment is liable to be set aside. He would further contend that PWs.5 to 9 including mother and other relatives of the deceased categorically deposed about the harassment meted out by accused to the deceased in the matrimonial home. Due to the said harassment in the matrimonial home, the deceased has committed suicide. He contends that, the evidence of PWs.5 to 9 has not been properly appreciated by the learned Sessions Judge. Hence, the judgment seriously suffers from illegality. Due to the said harassment in the matrimonial home, the deceased has committed suicide. He contends that, the evidence of PWs.5 to 9 has not been properly appreciated by the learned Sessions Judge. Hence, the judgment seriously suffers from illegality. He would further contend that PWs.5 to 9 are the relatives of deceased, the relationship of the witnesses does not affect the credibility of said witnesses and the Court shall scrutinize the evidence of relevant witnesses and if the evidence available on record is cogent, then the trial Court is duty bound to consider the same while passing the judgment. According to the learned Addl. SPP, the trial Judge has totally failed to appreciate the material evidence. According to him, PW.5 the mother has categorically deposed about the harassment meted out by the accused and she fully supported the case of the prosecution by stating that all the accused used to torture the deceased for the reason that she did not know the household and agricultural work and she was sitting idle at home and having her meals. As such they forced PW.5 to take her daughter to parental home. He contended that, despite such evidence available on record, the learned Sessions Judge totally discredited the versions of PWs.5 to 9 as such the judgment passed by the Sessions Judge is liable to be set aside. Accordingly, he prays to allow the appeal. 8. Per contra, learned counsel appearing for the respondents/accused would vehemently contend that the judgment under this appeal does not suffer from any perversity or illegality, since the trial Judge acquitted the accused by considering all the evidence available on record. The prosecution utterly failed to prove the charges leveled against the accused by leading cogent and trustworthy evidence. As such the Sessions Judge has rightly acquitted the accused. Learned counsel would contend that, there are contradictions in the evidence of PWs.5 to 9 as they have admitted that they have not stated as per Exs.D1 to D3 in their evidence, wherein PW.14 the Investigating Officer stated that they have given statement before him as per Exs.D1 to D3. Therefore, Exs.D1 to D3 are the material omissions amounting to contradictions in the evidence of PWs.5 to 9 respectively. Further, PWs.5 to 9 are only circumstantial witnesses. Therefore, Exs.D1 to D3 are the material omissions amounting to contradictions in the evidence of PWs.5 to 9 respectively. Further, PWs.5 to 9 are only circumstantial witnesses. On overall perusal of the evidence, the circumstances are not established by the prosecution to point out the guilt of the accused persons. There is no evidence available on record to establish that the accused persons harassed the deceased before her death and thereby abeted her to commit her suicide. In such circumstances, the prosecution totally failed to prove the charges leveled against the accused persons for the offence punishable under Ss. 498-A and 306 of IPC. Hence, he prays to dismiss the appeal. 9. We have bestowed our anxious consideration to the submissions made by the learned counsel for the appellant/State so also the learned counsel for respondents/accused and perused the evidence and materials available on record including the impugned judgment passed by the trial Court. 10. As far as the witnesses examined before the trial Court to prove the charges leveled against the accused are concerned, PWs.1 and 2 are the witnesses for the spot mahazar drawn as per Ex.P1 so also mahazar Ex.P2 i.e., seizure of clothes of the deceased i.e., MOs.1 to 3. However, both these witnesses have turned hostile. 11. PWs.3 and 4 are witnesses for inquest mahazar. Both have supported the case of the prosecution. PW.5 is the mother of deceased, she has re-iterated the averments of complaint filed by her as per Ex.P4 and deposed that prior to the date of incident, accused No.3 was assaulting her daughter and thereby torturing her both physically and mentally. Prior to six days of the incident, the accused once again assaulted her daughter and committed her murder. 12. PW.6 is the brother of deceased and he has also deposed similar to PW.5 about harassment meted out by accused No.3 to his sister both physically and mentally in the matrimonial home. 13. PW.7 is a relative of the deceased, he has also deposed about the harassment meted out by the accused to the deceased. 14. PW.8 is the sister of deceased and she has stated that prior to six days of the date of incident, accused No.3 took her sister from her parental home to the matrimonial home and thereafter committed the murder. 15. 14. PW.8 is the sister of deceased and she has stated that prior to six days of the date of incident, accused No.3 took her sister from her parental home to the matrimonial home and thereafter committed the murder. 15. PW.9 is another brother of the deceased and he has deposed about the harassment meted out by the accused to the deceased. 16. PW.10 is the doctor who conducted the autopsy over the dead body and issued post mortem report as per Ex.P11 and he gave the final opinion as to the cause of death as per Ex.P12. 17. PW.11, the then police constable of Yadgiri Rural Police Station, carried the hyiod bone of the deceased to the FSL. 18. PW.12 is the Assistant Engineer, who drew the sketch of the spot as per Ex.P14. 19. PW.13, is the then PSI of Yadgiri Rural Police Station, who registered the FIR as per Ex.P15 in Crime No.160/2010 against the accused based on the complaint lodged by PW.3 as per Ex.P4. 20. PW.14 is the then Police Inspector of Yadgiri Rural Police Station and Investigating Officer in the case. He laid the charge sheet against the accused for the aforesaid offences after completing investigation. 21. On a careful perusal of the evidence on record, PWs.5 to 9 are relatives of the deceased, who have stated in their evidence that the accused persons committed the murder of deceased Mallamma by assaulting her. But a perusal of the post mortem report issued by PW.10 as per Ex.P11 and medical opinion given by PW.10 as per Ex.P11, reveal that the injuries sustained by the deceased has not caused her death. The final opinion issued by PW.10, after receiving the FSL report as per Ex.P9 and hyiod bone report, as to the cause of death is "due to asphyxia as a result of organo phosphorus compound poisoning" as per Ex.P11. According to the doctor, he received a letter from CPI Yadgiri regarding injuries mentioned in the post mortem report and he has given opinion as per Ex.P12 that those injuries are simple in nature and did not cause the death of patient. 22. On a perusal of the entire evidence of PW.10 coupled with Exs.P8 to 12, clearly indicates that the deceased died suicidal death and not homicidal death. 22. On a perusal of the entire evidence of PW.10 coupled with Exs.P8 to 12, clearly indicates that the deceased died suicidal death and not homicidal death. Though, PWs.5 to 9 relatives of the deceased have deposed in their evidence that the accused have committed the murder of deceased, by noticing injuries found on the body of the deceased Mallamma, but the medical report and the evidence of PW.10-the doctor clearly establishes the fact that it is a suicidal death. The evidence of PW.5, the complainant who is mother of deceased depicts that, the accused assaulted her daughter and sent her to their house i.e., parental house for the reason that she did not know household and agricultural work. She further stated that 6 days prior to the date of incident, the accused assaulted her daughter and due to the same, her daughter died. Similarly, PW.4 i.e. the brother of deceased and PW.8-sister of the deceased also deposed as stated supra. Their oral evidence is quite contrary to the medical evidence deposed by PW.10. Even otherwise, charge is not framed under Sec. 302 IPC, but under Sec. 306 IPC and 498-A IPC. 23. As far as the charge under Sec. 498-A of IPC is concerned, there is no specific evidence deposed by PWs.5 to 9 except the omnibus statement/evidence that the accused have harassed and assaulted the deceased and committed her murder. According to all these witnesses, the harassment meted out by accused to the deceased for the reason that she did not know household and agricultural work. 24. On perusal of the cross-examination of PW.5, she categorically admitted that before death of deceased, the deceased and accused No.1 were residing at Bengaluru and they were doing coolie work for their livelihood. The other accused were residing separately at their village. The said admission of PW.5, establishes the fact that the deceased and accused No.1 were residing separately and there was no reason for the accused to harass the deceased on the ground that she did not know household and agricultural work. PW.5 also admitted in her cross- examination that the first daughter of the deceased died three months prior to the date of incident and during those three months, the deceased was residing along with PW.5 in the parental house and she was depressed at that time. PW.5 also admitted in her cross- examination that the first daughter of the deceased died three months prior to the date of incident and during those three months, the deceased was residing along with PW.5 in the parental house and she was depressed at that time. The said aspect was even admitted by PWs.6, 8 and 9 i.e., brothers and sister of the deceased respectively. Hence, on a careful perusal of the evidence of these witnesses, clearly depicts that the deceased was under depression since three months before her death, on account of the death of her elder daughter and during those three months she was residing at her parental house i.e., along with PW.5. Such being the case, the allegation in the complaint and the evidence of PWs.3 to 5 to the effect that accused were harassing her for not knowing the household and agricultural work appears to be doubtful. 25. Admittedly, PWs.5 to 9 are not eye-witnesses and they are only circumstantial witnesses. On a careful perusal of their evidence, the prosecution has failed to establish the guilt of accused for the offences charged. The evidence of PWs.5 to 9 is not cogent, clear and corroborative with each other to show that accused persons have abetted the deceased to commit suicide as alleged by the prosecution. Nevertheless, there is no material evidence with regard to the cruelty or harassment as defined under Sec. 498(A) of IPC. 26. The Hon'ble Apex Court in catena of judgments held that, in order to attract Sec. 306 of IPC, it must be shown that the accused persons have intentionally aided or abetted the deceased to commit suicide. In the case on hand, there is no such evidence available on record. 27. The Hon'ble Apex Court, in the case of Mariano Anto Bruno and Another Vs. The Inspector of Police reported in 2022 live law (SC) 834 held in paragraph Nos.36 and 38 as under: "36. To convict a person under Sec. 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. 38. To convict a person under Sec. 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. 38. This Court has time and again reiterated that before convicting an accused under Sec. 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Sec. 306 IPC is not sustainable." In the case on hand, no such evidence is forthcoming to show that the accused played an active role by their acts and instigated or provoked the deceased to commit suicide and has done any act which could be said to have facilitated the commission of suicide by the deceased. 38. Thus, in view of the dictum laid down by the Hon'ble Apex Court, it is clear that in order to convict an accused under Sec. 306 of IPC, the state of mind to commit the crime must be visible with regard to determining the culpability. There has to be a clear mens rea to commit the offence by the accused. It also requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intend to push the deceased into such a position that she committed suicide. The person who is said to have committed the abetment must have played an active role by act of instigation or doing certain act to facilitate the commission of suicide. 28. The person who is said to have committed the abetment must have played an active role by act of instigation or doing certain act to facilitate the commission of suicide. 28. In the case on hand, upon examining the entire evidence of prosecution witnesses, the evidence of PWs.1 to 14 are not cogent, corroborative and convincing to show that the accused No.1 being the husband and accused Nos.2 to 5 being the in-laws of deceased, with a common object subjected her to physical and mental cruelty for not knowing the household and agricultural work and thereby tortured her and due to the same she committed suicide by consuming pesticides as alleged by the prosecution. 29. This appeal is preferred against the judgment of acquittal. In order to interfere with the acquittal judgment, there must be substantial and compelling reasons, good and sufficient grounds and strong circumstances has to be placed by the prosecution to show that the trial Court has totally failed to appreciate the evidence or wrongly interpreted the facts and circumstances of the case. But in the present case, there is no such evidence available on record to reverse the acquittal order passed by the trial Court. It is well settled law by the Hon'ble Apex Court that on available evidence on record, if two views are possible one for acquitting the accused and the other for convicting him, in such a situation the rule of prudence should guide the Court not to disturb the order of acquittal passed by the trial Court. In that view of the matter, we are of considered view that the prosecution has failed to prove the charges leveled against the accused by providing cogent and convincing evidence before the trial Court. Hence, the trial Court rightly acquitted the accused. 30. In view of the above discussions, we proceed to pass the following: ORDER The appeal is dismissed.