Karnataka High Court
Shivareddy vs The State Of Karnataka on 14 June, 2023
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2023:KHC:21203
CRL.A No. 1301 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 1301 OF 2011
BETWEEN:
1. SHIVAREDDY
S/O LATE SIDDAREDDY
AGED ABOUT 35 YEARS,
AGRICULTURIST
R/AT EGALETAHALLI VILLAGE
SADALI HOBLI,
SIDLAGHATTA TALUK
CHIKKABALLAPUR DISTRICT
...APPELLANT
(BY SRI. M R NANJUNDA GOWDA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY SUB-INSPECTOR OF POLICE
DIBBURAHALLI POLICE STATION
SIDLAGHATTA TALUK
CHIKKABALLAPUR DISTRICT
Digitally signed by
SHOBHA C REPRESENTED BY THE SPP,
Location: High
Court of Karnataka ADVOCATE GENERAL OFFICE
HIGH COURT BUILDINGS,
BANGALORE
...RESPONDENT
(BY SRI. S. VISHWA MURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED: 22.11.11
PASSED BY THE ADHOC SESSIONS JUDGE, FTC-II, CHINTAMANI IN
S.C.NO.76/10 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498A AND 306 OF IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:21203
CRL.A No. 1301 of 2011
JUDGMENT
This appeal is filed by the appellant-accused No.1 under Section 374(2) of Cr.P.C. for setting aside the judgment of conviction and the order of sentence dated 22.11.2011 passed by the Court of the Adhoc District and Sessions Judge, Fast Track Court-II, Chintamani, in S.C. No.76/2010, for having found him guilty and convicted for the offences punishable under Sections 498A and 306 of IPC.
2. Heard the arguments of learned counsel for the appellant and learned High Court Government Pleader for the respondent-State.
3. The case of prosecution is that on the complaint of P.W.1-Maddireddy, the father of the deceased Bharathi, the police registered FIR. It is alleged by the complainant in the complaint that his daughter Bharathi was given in marriage to the appellant-accused No.1. At the time of negotiation of the marriage, the appellant demanded and he was given the cash of Rs.60,000/-. The complainant also gave 100 grams gold ornaments to bride and 50 grams of gold ornaments to bride -3- NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 groom. After the marriage, the couple lived peacefully for one year. After one year, the appellant-accused started demanding additional dowry and harassing the deceased. Then, the complainant intimated the same to his son Venkatareddy and also held panchayat and sent back the deceased to her matrimonial home. On 24.12.2009 at about 10.30 p.m., another son-in-law, i.e. younger brother of the accused, came and informed that the deceased Bharathi was missing from 6.00 p.m. Therefore, the complainant along with the villagers went to the village of the accused. They went on tracing the deceased. Later, on 25.12.2009, they found that the dead body of his daughter Bharathi was floating in a well. The complainant stated that the appellant-accused has not looked after his deceased daughter properly and has harassed her for the purpose of bringing money, thereby, abetted her to commit suicide. It is also alleged in the complaint that the accused was said to be having illegal intimacy with some other lady. Accused No.2-the mother of accused No.1 and accused No.3- the sister of accused No.1 said to be abetted the appellant- accused No.1 to harass the deceased. After registering the complaint-Ex.P.1, the police registered FIR against accused -4- NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 Nos.1 to 4 in Crime No.172/2009 for the offences punishable under Sections 498A and 304(B) read with Section 34 of IPC. The investigation officer investigated the matter and filed charge sheet.
4. After committal, the trial Court secured the presence of the accused and charges were framed. The accused persons denied the charges and claimed to be tried. Accordingly, the prosecution examined 26 witnesses as per P.Ws.1 to 26 and got marked Exs.P.1 to P.23. After closing the evidence of prosecution witnesses, the statement of the accused under Section 313 of Cr.P.C. was recorded. The case of the accused was one of the total denial. The accused had not entered witness box except marking Exs.D.1 to D.13 during the cross examination of prosecution witnesses.
5. During trial, accused No.2 died. Therefore, charges were framed against accused Nos.1, 3 and 4 for the offences punishable under Sections 3, 4 and 6 of Dowry Prohibition Act and for the offences punishable under Sections 498A, 114, 302 and 304B read with Section 34 of IPC. The trial Court found -5- NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 accused Nos.3 and 4 not guilty and acquitted them of the offence punishable under Sections 114 of IPC and found accused No.1 guilty for the offences punishable under sections 498A, 306 of IPC. The trial Court further sentenced him to undergo rigorous imprisonment of three years and to pay fine of Rs.10,000/- for the offence punishable under section 498A of IPC and in default of payment of fine shall undergo 1/4th above substantive sentence awarded against him and to undergo 10 years rigorous imprisonment and to pay fine of Rs.15,000/- for the offence punishable under section 306 of IPC and in default of payment of fine shall undergo 1/4th above substantive sentence awarded against him. Being aggrieved by the same, the appellant-accused No.1 is before this Court.
6. Learned counsel for the appellant-accused No.1 has contended that the judgment of conviction and the order of sentence passed by the trial Court is not sustainable in law as there was no demand of dowry. As per the evidence of P.W.2, the marriage expenditure was borne by the accused, and when the marriage expenditure was spent by the accused alone, the question of demanding dowry does not arise. It is further -6- NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 contended that P.W.1, i.e. the father of the deceased, has categorically stated that relationship between the deceased and accused was cordial and the accused took the deceased to the hospital for medical check up, as there was no issues to the couple. It is further contended by the learned counsel for the appellant that the deceased married accused No.1 and the sister of the deceased married the younger brother of the accused No.1 (i.e. brother-in-law of deceased), within ten months of the marriage, the sister of the deceased begotten two children, whereas the deceased did not have any issues and therefore, the deceased was disappointed for having no issues. There was no evidence brought by the prosecution that the accused abetted the deceased to commit suicide. Absolutely, there is no evidence that the accused has shown the act which led the deceased to commit suicide.
7. The learned counsel for the appellant-accused No.1 further contended that the statement of the witnesses was recorded 13 days after the incident. There was an inordinate delay while recording the statement and therefore, recording the statement at the belated stage, cannot be acceptable. The -7- NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 learned counsel further contended that the accused brought contradictions and omissions in the cross examination of witnesses of the prosecution. He got marked 13 documents while taking the entire evidence of the prosecution, but there are no ingredients to attract Section 498A of IPC. It is also contended that the witnesses have stated that the appellant- accused had developed illegal intimacy with some other lady, but that cannot be considered as an abetment to commit suicide to bring it under the provision of Sections 107 and 306 of IPC. It is further contended that the trial Court formed eight points for consideration and all the points were answered in negative except finding guilty for the offence punishable under Section 498A of IPC. Though there is no charge framed for the offence punishable under Section 306 of IPC, but the trial Court found guilty and convicted the appellant-accused for the said offence. Hence, prayed for allowing the appeal.
In support of his arguments, the learned counsel for the appellant has relied upon the following judgments of the Hon'ble Supreme Court:
1. KASHIBAI AND OTHERS Vs. THE STATE OF KARNATAKA arising out of SLP No.8584/2022 dated 28.02.2023.-8-
NC: 2023:KHC:21203 CRL.A No. 1301 of 2011
2. GURJIT SINGH Vs. STATE OF PUNJAB reported in AIR 2020 SC 1785
8. Per contra, learned High Court Government Pleader has supported the judgment of the Trial Court and contended that P.Ws.1 to 4 have fully supported the prosecution case. P.W.6, who is none other than the brother of P.W.1, has performed the marriage of the deceased, when P.W.1 met with an accident on the date of marriage. Therefore, he performed the marriage of the deceased in place of P.W.1. Learned High Court Government Pleader further submitted that P.W.10 has spoken about the cruelty met out by the accused persons. P.Ws.11 to 13, though they are the eye witnesses, have turned hostile and as per their evidence, they have stated that they saw the accused with the company of the deceased. P.W.15, a villager has categorically stated that the accused had intimacy with his wife. The case was registered against him where there was compromise between accused and P.W.15 and the case was ended in acquittal. The appellant-accused was also having intimacy with one Mubeena. The evidence of witnesses clearly reveals that there was harassment by the accused for having illegal intimacy with some other lady which led the commission -9- NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 of suicide by the deceased. It is further contended that even though there was no charge framed for the offence punishable under Section 306 of IPC but the trial Court framed charge for the offences punishable under Sections 302 and 304-B of IPC, where they found guilty for lesser offence, which is permissible in law. Hence, prayed for the dismissal of the appeal.
9. The points for consideration in this appeal are as follows:
1. Whether the prosecution proves beyond reasonable doubt that appellant-accused No.1 married deceased and after marriage, he was harassing her physically and mentally, and he was coming to house late night having illegal intimacy with some other lady and assaulting the deceased, due to which she committed suicide, and the villagers found the dead body of the deceased in a well on 25.12.2009, thereby the appellant-
accused No.1 has committed the offences punishable under Sections 498A and 306 of IPC ?
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2. Whether the judgment of conviction and the order of sentence passed by the trial Court calls for interference by this Court ?
10. Prior to the appreciation of evidence, it is worth to mention the evidence of prosecution witnesses adduced before the trial court.
P.W.1-Maddireddy, the father of deceased, has deposed that there was proposal for marriage of the deceased with accused No.1 and during marriage, the accused demanded dowry and cash of Rs.60,000/- was given to accused, apart from the gold ornaments. Thereafter, the accused started harassing the deceased for want of additional money. P.W.1 has also deposed that accused No.1 had illicit intimacy with some other lady. He has identified the complaint as per Ex.P.1.
P.W.2-Rathnamma, mother of the deceased, has given the evidence on par with the evidence of P.W.1.
P.W.3-M.Venkatareddy, the brother of deceased, speaks about the marriage negotiation and performance of marriage of the deceased with accused No.1. He also stated that there was
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 dispute between accused No.1 and deceased, panchayath was held and sent the deceased back to her matrimonial home.
P.W.4-Ashwathareddy is from the same village of P.W.1- complainant. He has spoken about marriage negotiation and he attending the marriage of deceased with accused No.1. He came to know about harassment met out by the accused to the deceased.
P.W.5-Doddanatha Venkatareddy speaks about marriage, cruelty and dowry demanded by the accused, but he has turned hostile.
P.W.6-Nallarallapalli M. Narayanaswamy, who is the relative of the deceased and who actually performed the marriage of the deceased with accused No.1, has deposed that prior to the date of marriage, when they were proceeding in the vehicle, P.W.1 met with an accident and he was taken to the hospital. Therefore, P.W.6 took the charge of performing the marriage of the deceased in the place of P.W.1. He speaks about the demand of dowry, payment of dowry and harassment by accused to the deceased.
P.W.7-Chowdareddy speaks about the cruelty and harassment met out by the accused to the deceased.
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 P.W.8-K.C. Narayanaswamy, the inquest panch witness as per Ex.P.12 says that the dead body of the deceased found in the well. The factum of tracing the dead body is not in dispute.
P.W.9-Srinivasa Reddy speaks about the cruelty and he is from the different village and supports the case of prosecution.
P.W.10-Narayanaswamy @ Narayanappa also speaks about cruelty and he is also from different village, he partly supports the case of prosecution but turned hostile regarding negotiation.
P.Ws.11, 12 and 13-all these witnesses have seen the dead body of the deceased. They have to speak about the company of the deceased with accused No.1 prior to the date of incident. They have given statement before the police that they have seen the deceased with the company of the accused and thereafter, she was found dead. Therefore, the police filed charge sheet for the offence punishable under Section 302 of IPC. But these three witnesses have turned hostile and not supported the case of prosecution. Therefore, their evidence is not useful to the prosecution case.
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 P.W.14-Afzal Pasha speaks that P.W.1 borrowed Rs.1.00 lakh from him for the purpose of marriage of his daughter. Again this witness has not supported the case of prosecution.
P.W.15-Venkataravanappa is from the same village of P.W.1. He has given evidence stating that the accused married deceased and thereafter, he had illicit intimacy with one Mubeena. The accused No.1 committed rape on his wife and therefore, he lodged complaint against the accused. Subsequently, due to settlement, the accused No.1 was acquitted.
P.W.16-Ashok has also stated about tracing the dead body of the deceased in the well and taking the same to the hospital.
P.W.17-Narasimhareddy has seen accused Nos.3 and 4, who are his parents, as well as the accused No.1, who is his uncle, in the village hospital. He has not supported the case of prosecution.
P.W.18-Nagesh who took photograph of the dead body and he is only a formal witness.
P.W.19-Anjanappa who has seen the dead body in the well has supported the case of prosecution.
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 P.W.20-Reshma Tahasin conducted inquest, she has recorded the statement of P.Ws.3, 6 and other witnesses. She speaks about the dead body, conducting inquest and recording the statement of witnesses.
P.W.21-Dr Vijay S. has done autopsy on the dead body. He has issued Ex.P.20 stating that the death was due to drowning.
P.W.22 and P.W.23 are the panch witness to Ex.P.12. P.W.24-K.M. Srinivasappa, PSI, who registered FIR and handed over investigation to P.W.25.
P.W.25-V. Govindaiah, the investigation officer, conducted part of investigation and handed over to P.W.26.
P.W.26-D. Rajappa, another Dy.S.P. of COD has completed further investigation and filed charge sheet.
11. On perusal of the entire evidence, especially, the evidence of P.Ws.1 and 2, who are the parents of the deceased and P.W.3-the brother of deceased and P.W.6-uncle of the deceased who performed the marriage, all of them have stated about the marriage negotiation, performance of marriage of the deceased with appellant-accused No.1, payment of dowry, etc.
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 P.Ws.7, 9 and 10 speak about the cruelty and illegal intimacy of accused No.1 with some other lady. They came to know about the same when the deceased came to the house of P.W.1 and when she informed that accused No.1 was coming to home in the late night and when questioned, he used to assault her. P.W.15 who is from the same village of the P.W.1 has stated that the accused was having intimacy with his wife and the accused said to have committed sexual assault on her and therefore, he lodged complaint to the police and later, there was compromise between them and the accused was acquitted.
12. It is an admitted fact that the marriage of the deceased with accused No.1 was performed at the expenses of the accused as per the evidence of P.W.6. It is not in dispute that the deceased was given in marriage to accused No.1. Within ten months of her marriage, her sister Radhika was given in marriage to brother of accused No.1. It is also not in dispute that the deceased had no issues in spite of four years of her marriage. It is also an admitted fact that the younger sister of the deceased, who married the brother of accused No.1, begotten two issues. Learned counsel for appellant has
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 contended that due to her not becoming pregnant, the accused used to take the deceased to the hospital for medical check up and this was spoken by P.W.1. The evidence of P.Ws.1 and 2 reveals that, for some time, the marriage between accused No.1 and deceased was cordial. Though P.Ws.1 to 3 and 6 and other relatives have spoken about the demand of dowry and payment of dowry, but the trial court found not guilty for this offence and the trial court formed eight points for its consideration for the offences punishable under Sections 302, 304-B of IPC and Sections 3, 4 and 6 of D.P. Act and acquitted the accused.
13. It is an admitted fact that the trial Court acquitted accused Nos.3 and 4 for offences punishable under Sections 114 of IPC along with other offence of instigating the deceased to commit suicide. Accused No.2 died during the pendency of the trial. Hence, the Trial Court held that there is no evidence to show that the accused committed the murder of the deceased. Even P.Ws.11 to 13 have turned hostile, thereby last seen theory that the accused found in company of the deceased was not proved. Therefore, Section 302 of IPC is not attracted.
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 Hence, the appellant-accused No.1 was acquitted of the offence under Section 302 of IPC. The prosecution has also failed to prove that there was demand of dowry and harassment by the accused prior to the death of the deceased, thereby the trial Court acquitted all the accused for the offence under Section 304-B of IPC.
14. It is an admitted fact that the prosecution has not filed any appeal against acquittal order of the accused persons for the offences punishable under Sections 3, 4 and 6 of D.P. Act and Section 302 and 304-B of IPC. The Trial Court found accused No.1 guilty for the offences punishable under Sections 498A and 306 of IPC.
15. Learned counsel for appellant has relied upon the judgment of Hon'ble Supreme Court in the case of GURJIT SINGH, cited supra, wherein at paragraphs 18, 21 and 22, the Hon'ble Supreme Court has held as under:
18. It has been further held that when the case does not fall under clauses Secondly and Thirdly of Section 107 IPC, the case is to be decided with reference to the first clause [of Section 107] i.e. whether the appellant-accused
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 abetted the suicide by instigating her to do so. It will be further relevant to refer to the following observations in Ramesh Kumar [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] : (SCC pp. 629-30, paras 20-22) "20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
21. In State of W.B. v. Orilal Jaiswal [State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73 : 1994 SCC (Cri) 107] , this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
22. Sections 498-A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned."
21. The Court, therefore, held that the ingredients to constitute an offence under Section 306 IPC were already found in the charge and as such no prejudice was caused to the accused therein, though no separate charge was framed under Section 306 IPC. Apart from that, the evidence on record established that when the letters concealed by the husband were discovered by the wife and handed over to the father and she was driven out of
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 the house, this cruel conduct of the husband led the wife to commit suicide. It could thus be seen, that in the facts of the said case, the Court found that the conviction under Section 306 IPC could be recorded. It was found that, apart from the earlier acts of harassment for parting with the land which she had received in marriage as stridhana, there was an act of driving the deceased out of the house which had direct nexus with the deceased committing suicide.
22. The Bench of two Judges of this Court had an occasion to consider a similar issue in Hans Raj v. State of Haryana [Hans Raj v. State of Haryana, (2004) 12 SCC 257 : 2004 SCC (Cri) Supp 217] . It will be relevant to refer to the following paragraphs : (SCC pp. 263-64, paras 12-13) "12. The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 IPC with the aid of the presumption under Section 113-A of the Evidence Act. Any person who abets the commission of suicide is liable to be punished under Section 306 IPC. Section 107 IPC lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the appellant
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113-A of the Evidence Act under which the court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The Explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498-A of the Penal Code....
13. Unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Evidence Act. Under Section 113-A of the Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 had been abetted by her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman."
16. In paragraph 21 of the aforesaid judgment, it is stated that there must be clear abetment to commit offence and there must be direct act which leads the deceased to commit suicide.
17. In Kashibai's case, (supra), the Hon'ble Supreme Court, at paragraphs 13 and 14, has held as under:
13. The PW-21 Dr. Jayashree Masali though had opined that the death of the deceased was due to the drowning as a result of Asphyxia, there was no opinion given by her nor any opinion was sought from her as to whether it was a suicide committed by the deceased or it was an accident by which she fell down in the well. Even if it is presumed that the deceased had committed suicide, there was no evidence whatsoever adduced by the prosecution that there was an abetment on the part of any of the accused which had driven her to commit suicide. There is no
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 evidence worth the name to show that any of the appellants-accused had either instigated or intentionally aided or abetted the deceased to commit suicide or had caused any abetment as contemplated under Section 107 of the IPC.
14. Though it is true that as per Section 113A of the Evidence Act, when the question arises as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband, and when it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court can presume, having regard to the other circumstances, that such suicide has been abetted by her husband or such relative of her husband. However, mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.
18. Now, coming to the evidence of prosecution witnesses, especially, the parents of the deceased, they have stated in their evidence that accused No.1 said to be harassing the deceased. Therefore, the deceased came to their home and she also informed that accused No.1 was having illicit intimacy with other lady and coming home in the late night and when she questioned the accused in this regard, he used to assault
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 her. The parents have also deposed that the deceased and accused were leading happy marital life for some time, and that the deceased used to inform them that it was difficult for her to lead marital life with the accused. The deceased also informed them over phone that the accused assaulted her during the night hours. Though in the cross examination, there was lengthy cross examination by the counsel for the accused that there was no harassment by the appellant- accused No.1 on the deceased, and there was disappointment by the deceased for not begotten of the child as her sister begotten two children, who married after the marriage of the deceased, but, it is an admitted fact that P.W.1 has stated about the factum of harassment by the accused on the deceased and the accused No.1 had intimacy with another lady and coming to home late night and when this was questioned, he used to assault the deceased. P.Ws.2 and 3-mother and brother of deceased, spoke about the harassment met out to deceased by the accused.
19. P.W.6 who is the uncle of the deceased has also stated that he came to know about accused No.1 having illicit
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 intimacy with neighbour and coming to home late night and assaulting the deceased.
20. Though the aforesaid witnesses are the family members of the deceased, but in respect of the factum of marriage, the deceased informing them regarding assault made by accused No.1, harassment given to her due to intimacy with some other lady, cannot be dis-believable.
21. P.W.15 has stated that accused is having illicit intimacy with one Mubeena. He also stated that the accused No.1 said to commit rape on his wife. Therefore, she lodged complaint to the police and thereafter, both of them compromised and the accused got acquittal in the said case. It is also stated that accused insulted the wife of P.W.15 and therefore, she committed suicide. In the cross examination, P.W.15 has stated that accused No.1 is known to him and after the death of his wife, there is no cordial relationship between them. He has given statement as per Ex.D.13 wherein it is stated that accused NO.1 and deceased used to quarrel because of not begetting the children. But Ex.D.13 is not
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 useful to the accused as these witnesses speak about conduct of accused No.1 that he had illicit intimacy with some other lady and committed rape on her. The evidence of P.Ws.1 to 3, 6 and 15 corroborates with each other that the appellant- accused No.1 had illicit intimacy with the other lady and used to go to his house in the late night and when the same was questioned by the deceased, he used to assault her. She also informed her parents that she could not tolerate and they consoled her and they sent back to matrimonial home stating to tolerate for some more time. Prior to the date of death of the deceased, they consoled her and sent back to home.
22. Though P.W.1 has stated that the deceased and appellant-accused No.1 were cordial, but P.W.2 mother of the deceased has stated that the deceased used to inform her that she was not peacefully living with accused No.1. P.W.2 has categorically stated that accused is the reason for the death of the deceased. Though there is some inconsistency in the evidence of prosecution witnesses, the fact remains that the accused was having illicit intimacy with some one else i.e. the wife of P.W.15, which reveals that the deceased was not happy
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 and accused used to go to home late night and used to assault her which led the deceased to commit suicide. The judgment of Hon'ble Supreme Court in Kashibai's case, supra, is squarely applicable to the case on hand. Hence, I hold the prosecution is successful in proving the fact that the accused was having illicit intimacy with the other lady and due to which, he abated the deceased to commit suicide. Therefore, I am of the view that the factum of death of the deceased and the finding of dead body in the well, is not in dispute. Though the offence is within seven years of marriage, there was continuous harassment by the accused to bring additional dowry but the Trial Court failed to accept the evidence of some of the prosecution witnesses and acquitted the accused of the charges under Sections 302 and 304B of IPC.
23. Explanation to Section 498A of IPC, reads as under:
Husband or relative of husband of a woman subjecting her to cruelty:
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 Explanation.--For the purposes of this section, "cruelty means"--
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]
24. The prosecution is successful in proving the fact that appellant-accused No.1 was having illicit intimacy with some other lady, due to which, the deceased committed suicide in the matrimonial home and the appellant-accused No.1 not even tried to trace the deceased, though the other villagers were searching the deceased. When the burden is proved by the prosecution, the presumption is available under Section 113 'A' of Evidence Act and the appellant-accused has to rebut the same stating that he is not guilty.
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011
25. Except marking some documents in the cross examination, which have omissions and contradictions, accused No.1 has not entered into witness box to lead evidence that he was not harassing the deceased or were leading happy marital life. Therefore, I hold the prosecution is successful in proving the offence punishable under Sections 498A and 306 of IPC. It is well settled that as per Section 221(2) of Cr.P.C., the Court has power to convict the accused which he has committed although he was not charged with it. In this case, though the trial Court has not framed charge for the offence under Section 306 of IPC and framed charge for the offence punishable under Sections 302 and 304-B of IPC, but it has rightly acquitted the accused under Sections 304-B and 302 of IPC and found convicted for the offence under Section 306 of IPC as he abetted the deceased to commit suicide, thereby the trial Court has rightly convicted the appellant for offences punishable under Sections 498A and 306 of IPC.
26. As regards the sentence, the trial Court has awarded to undergo rigorous imprisonment of 3 years and to pay fine of Rs.10,000/- for the offence punishable under Section 498A of
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 IPC and to undergo 10 years rigorous imprisonment and to pay fine of Rs.15,000/- for the offence punishable under section 306 of IPC. Looking to the age of accused No.1 and as the co- accused persons were already acquitted and the incident took place in the year 2009, and considering the same, punishment awarded by the trial Court is more and little bit disproportionate to the offence committed. Therefore, I am of the view that the imprisonment of 10 years awarded under section 306 of IPC be reduced to 2 years, in view of the judgment of Hon'ble Supreme Court in Kashibai's case (supra), wherein the Hon'ble Supreme Court has reduced the imprisonment to 2 years for the offence punishable under Section 306 of IPC.
27. Accordingly, I pass the following order:
(i) The appeal allowed in part.
(ii) The finding of conviction by the trial Court for the offences punishable under Sections 498A and 306 of IPC, is herby confirmed. The sentence is modified as under :
(a) The appellant is directed to undergo rigorous imprisonment for 1 year and to pay fine of Rs.10,000/-, and in default of payment of fine, he shall undergo imprisonment for
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NC: 2023:KHC:21203 CRL.A No. 1301 of 2011 three months for the offence punishable under Section 498A of IPC.
(b) The appellant further also directed to undergo 2 years rigorous imprisonment and to pay fine of Rs.15,000/-, and in default of payment of fine, he shall undergo imprisonment for six months for the offence punishable under Section 306 of IPC.
(c) Both the sentences shall run concurrently.
(d) The fine amount, is ordered to be payable to P.Ws.1 and 2 as compensation.
(e) Office is directed to send the records along with the copy of this order to the trial Court.
(f) The sentence already undergone by the appellant is given set off under section 428 Cr.P.C.
Sd/-
JUDGE CS List No.:1 Sl No.: 20