Karnataka High Court
Vijaykumar S/O Malakappa Kumbar vs The State Of Karnataka on 31 August, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3556/2013
Between:
Vijaykumar S/o Malakappa Kumbar,
Age 39 years, Occ. Coolie,
R/o Dasur, Tq. Indi,
Dist. Bijapur and Solapur.
... Appellant
(By Sri Shivanand V. Pattanashetti, Advocate)
And:
The State of Karnataka
R/by Addl. SPP High Court of Karnataka,
Circuit Bench, Gulbarga
(Through Chadachan P.S.,
Dist. Bijapur)
... Respondent
(By Sri Gururaj Hasilkar, HCGP)
This Criminal Appeal is filed under Section 374 (2)
of Code of Criminal Procedure Code, praying to admit
this appeal, call for the records from the court below
and set aside the judgment of conviction and order of
2
sentence dated 11.03.2013 passed by the III Addl.
Sessions Judge, Bijapur in SC.No.95/2011 and acquit
the appellant/accused No.1.
This appeal coming on for hearing this day, the
Court delivered the following:
JUDGMENT
The above appeal is filed challenging the judgment of conviction and order on sentence dated 11.03.2013 passed in Sessions Case No.95/2011 by the Court of III Additional Sessions Judge at Bijapur (hereinafter referred to as the 'Sessions Court' for brevity).
2. The brief facts of the case are as follows ;- The deceased is the daughter of the complainant and wife of the appellant/accused No.1. It is stated that the deceased was given in marriage to the appellant/accused No.1 before 10 years from the date of incident and it is stated that the family members as well as the appellant/accused No.1 were giving ill-treatment both physically and mentally to the deceased and which 3 was told to the complainant and her mother, however, it is pacified.
It is further stated that on 12.07.2010 the PW.2 and one elder person by name Apparaya Ramchandra have gone to the village of Chadachan and Dasur and returned back to the house and PW.2, who is father of the complainant- PW.1 was told that in the house of the deceased the appellant/accused No.1 and other family members were giving much ill-treatment and when this being the fact on 13.07.2010 at afternoon 1.00 a.m., PW.1 had received the telephonic message from the Dasur Village that on 13.07.2010 at morning 10.00 am that the deceased was caught fire and the appellant/ accused No.1 had taken the deceased to the Civil Hospital, Solapur for treatment and immediately the complainant and his wife and other elders went to the hospital at Solapur and saw that the deceased is his daughter had sustained burn injuries from head to toes and she is not in a position to speak and when during 4 the treatment in the hospital on 14.07.2010 at 6.00 a.m. the deceased succumbed to the burn injuries. Therefore, in this regard PW.1 had lodged first information statement (FIS) before the police as per Ex.P.1 to the police as against the appellant/accused No.1, his mother, brother-in-law and sister-in-law. Accordingly, the police have registered the crime in Crime No.74/2010 for the offences punishable under Sections 498-A and 306 read with Section 34 of Indian Penal Code (IPC) as against the appellant/accused No.1 and other accused persons.
3. Upon registration of crime, the police have started investigation and the Investigation Officer after collecting all the evidences and completion of investigation filed charge sheet against the appellant/accused No.1 and against other accused persons before the committal Court for the offences punishable under Sections 498-A and 306 read with Section 34 of IPC. The learned Magistrate after receipt of 5 the charge sheet has taken cognizance of the alleged offences under Section 190 of Code of Criminal Procedure (Cr.P.C.) and furnished copies of charge sheet to the accused as per Section 207 of Cr.P.C and since the offences alleged are exclusively triable by the Sessions Court, therefore, committed the case to the Sessions Court as per Section 209 of Cr.P.C.
4. The Sessions Court after receipt of the committal records had registered the case as Sessions Case No.95/2011 and the Sessions Court had framed the charge against the appellant/accused No.1 and other accused persons for the offences punishable under Sections 498-A and 306 read with Section 34 of IPC. Upon reading over and explained the charges to the appellant/accused No.1 and other accused persons, they pleaded not guilty and claims to be tried and accordingly by recording their pleas the Sessions Court has proceeded with trial.
6
5. During the trial the prosecution has got examined totally 10 witnesses as PWs.1 to 10 and got marked documents as Exs.P.1 to P.17 and got marked the material objects M.Os.1 and 2. After completion of the prosecution evidences the appellants/accused No.1 and other accused persons have examined under Section 313 of the Criminal Procedure Code and put to them incriminating circumstances but the appellants/accused No.1 and other accused persons have simply denied the prosecution case. On the other hand from the defence side, two witnesses got examined as DW1 and DW2 and got marked contradictory statement of P.W.4 as per Ex.D1. Thereafter, the Sessions Court appreciating the evidences on record, had convicted the accused No.1 for the offence under Section 498-A and 306 read with Section 34 of IPC. Further the Sessions Court had acquitted the accused Nos.2 to 4 for the charges leveled against them. Therefore, the appellant who is accused No.1 had 7 preferred the present appeal inter alia urging the various grounds in the appeal memorandum and challenged the judgment of conviction and order on sentence.
6. I have heard the arguments by the learned counsel for the appellant/accused No.1 and the learned High Court Government Pleader and perused both oral and documentary evidences on record and other materials from the records.
7. It is urged the grounds in the appeal memorandum in brief that the ingredients of Section 306 and 498-A of IPC are not revealed in the course of prosecution evidences and there is no proper appreciation of the evidences. Further raised a ground that the dying declaration as per Ex.P.5 the deceased never stated anything against the appellant/accused No.1 and further more the deceased herself while she was taking treatment at Civil Hospital, Solapur has 8 given statement before DW.2 - The Special Executive Magistrate, Solapur that when she was preparing the tea she was caught fire to her sari and sustained burn injuries and immediately her husband the appellant/ accused No.1 herein had taken the deceased to the hospital for treatment. Therefore, submitted that when this being the evidence revealed during the trial and that too the prosecution has produced the dying declaration of the deceased which completely negates the prosecution case that the appellant/accused No.1 had committed the offence as alleged. Therefore, urged the ground that the judgment of conviction and order on sentence is not correct.
8. Further submitted that virtually there are no evidences revealed that the appellant/accused No.1 was giving ill-treatment and cruelty to the deceased and whatever produced are hear say evidences and that too the deceased had lived along with the appellant/ accused No.1 for more than 10 years. Therefore, it 9 cannot be believed that appellant/accused No.1 was giving such ill-treatment for 10 years and then the deceased committed suicide. Therefore submitted that the prosecution case is far from truth and just because of the death of the deceased and taking this advantage of this fact the appellant/accused No.1 is roped in the case. Therefore, challenged the judgment of conviction and order on sentence.
9. The learned counsel for the appellant/accused No.1 submitted that entire prosecution case itself is false one and the appellant/accused No.1 and other accused were falsely implicated into the case and the Sessions Court after appreciating the evidences on record rightly acquitted the accused Nos.2 to 4 but wrongly convicted the appellant/accused No.1.
10. Further submitted that in the dying declaration Ex.P.5 the deceased itself had stated before 10 DW.2 -Special Executive Magistrate that on 13.07.2010 when she was preparing the tea from the stove then she was caught fire accidentally and therefore sustained burn injuries and upon seeing this the appellant/ accused No.1 has tried to rescue her and then he had taken her to the hospital at Solapur. Therefore, when this being the fact appellant/accused No.1 had rescued the deceased but without appreciating this, prosecution has wrongly filed the charge sheet and the Sessions Court has wrongly convicted the appellant/accused No.1 even without there being any evidences in the prosecution case as against the appellant/accused No.1. Therefore, learned counsel for the appellant/ accused No.1 relied on Ex.P.5 the dying declaration as well as the evidences of DWs.1 and 2 further submitted that even though whatever cruelty as deposed by PWs.1 to 4 as they are hearsay witnesses and as usually in every family there would be difference of opinion between the husband and wife that cannot be 11 constituted as cruelty to the wife. Therefore, in this regard, the Sessions Court had not appreciated the evidences on record rightly and in true perspective manner resulting into miscarriage of justice convicting the appellant/accused No.1. Therefore, prayed to allow the appeal and acquit the appellant/accused No.1 on the charges levelled against him.
11. Further submitted that the deceased was given in marriage to the appellant/accused No.1 about 10 years before and it is not believable fact that for long 10 years the deceased had tolerated such cruelty and ill-treatment alleged to have been given by the appellant/accused No.1 and lived with him and then appellant/accused No.1 had abetted his wife. Further argued that quite naturally PWs.1 and 2 being the father and grand-father of the deceased have deposed with all love and affection towards their daughter deceased, but the Sessions Court has swayed away by this moral emotion, but there are no cogent and 12 believable legal evidences against the appellant/accused No.1 in convicting him.
12. Furthermore PWs.3 and 4 who are stated to be independent witnesses even though stated that they have heard there is quarrel in the house and the appellant/accused No.1 had given ill-treatment that cannot be held sufficiently to convict the appellant/ accused No.1 for the alleged offences. Further submitted that the ingredients of Sections 498-A and 306 of IPC are not attracted and also much particularly the ingredients of Section 306 of IPC no sooner to her death, there was continuous ill-treatment to the appellant/accused No.1 and abetted so cruelty that such abetment would prompted the deceased to take such extreme steps by ending of her life by committing the suicide. Therefore, absolutely there are no material at this stage to hold that the appellant/accused No.1 is guilty of the offences as alleged. Therefore, prayed for 13 acquittal of the appellant/accused No.1 by allowing the appeal.
13. Further submitted that the learned Sessions Court had acquitted the accused Nos.2 to 4 even though they are facing the same charges as that of the appellant/accused No.1 but the respondent/state has not preferred the appeal against the acquittal of accused No.2 to 4. This fortifies the conduct of the respondent/state that the prosecution case is false one and just because of death of the deceased was occurred the appellant/accused No.1 is roped falsely in the present case. Therefore, prayed for allowing the appeal and acquit the appellant/accused No.1.
14. Per contra, the learned High Court Government Pleader submitted that the prosecution has produced all the cogent, reliable and believable evidences to prove the guilt against the appellant/accused No1 and the Sessions Court has 14 rightly convicted the appellant/accused No.1 for the charges levelled against him.
15. Further submitted that the PWs.1 to 4 who are father, grand-father and independent witnesses have stated that the appellant/accused No.1 was giving ill-treatment both physically and mentally. Therefore this constitutes abetment of suicide. Therefore, in this regard the learned Sessions Judge has rightly appreciated the evidences on record.
16. Further submitted that even the prosecution has produced dying declaration Ex.P.5 but that is not believable for the reason that the appellant/accused No.1 who was very much present while the deceased giving dying declaration before the Special Executive Magistrate. Therefore, the appellant/accused No.1 had influenced the deceased for giving false statement and therefore just because deceased had given statement before the Special Executive Magistrate, subsequently 15 which was considered as dying declaration that cannot be made ground to show that the appellant/accused No.1 is innocent of the alleged offences. Therefore, submitted that apart from Ex.P.5 dying declaration the prosecution has other evidences to show that the appellant/accused No.1 is guilty of the offences as alleged. Therefore, prayed for confirming the judgment of conviction and order on sentence recorded against the appellant/accused No.1 and to dismiss the appellant/accused No.1 as being devoid of merits.
17. Let me first take cursory look of role of each witnesses as adduced by the prosecution :-
PW.1 is the father of the deceased, PW.2 is the grand-father of the deceased and father of PW.1; PWs.3 and 4 are the independent witnesses and they have supported the case of the prosecution; PWs.5 to 7 are the independent witnesses but they have turned hostile, PW.8 is the Police Constable who has translated the 16 death note of the deceased initially it was in Marathi language then translated into Kannada language; PW.9 is the Doctor who had conducted post mortem examination on the dead body; PW.10 is the PSI who had conducted the investigation and filed charge sheet.
18. The offence alleged against the appellant/accused No.1 is that the deceased is the wife of the appellant/accused No.1 and their marriage was solemnized before 10 years from the date of incident and the appellant/accused No.1 was giving ill-treatment to the deceased for long 10 years and subjected the deceased into cruelty both physically and mentally and then without tolerating the same the deceased committed suicide by pouring the kerosene and setting ablaze on her and thus in this way charges levelled against the appellant/accused No.1 and other accused for the alleged offences. Before the Sessions Court the accused Nos.2 to 4 are acquitted of the charges levelled against them but conviction is recorded only against the 17 appellant/accused No.1 for the offence under Section 498-A and 306 read with Section 34 of IPC.
19. To constitute the offence under Section 498-A of IPC, the prosecution has to prove the following ingredients ;-
"Ingredients of offence.- The essential ingredients of the offence sunder sec. 498A are as follows:
(1) A woman was married;
(2) She was subjected to cruelty;
(3) Such cruelty consisted in -
(i) any lawful conduct as was likely to drive
such woman to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical;
(ii) harm to such woman with a view to coercing her to meet unlawful demand for property or valuable security or on account of failure of such woman or any of her relations to meet the lawful demand;
(iii) the woman was subjected to such cruelty by her husband or any relation of her husband"18
20. For constructing the offence under Section 306 of IPC, the prosecution has to prove the following ingredients:-
"Ingredients of offence- The essential ingredients of the offence under sec. 306 are as follows:
(1) There was suicide of a person;
(2) It was committed in consequence of abetment by the accused."
21. In the present case as it is admitted fact that the marriage of the deceased was solemnized with the appellant/accused No.1 before 10 years from the date of the incident. PW.1 is the father of the deceased and PW.2 is the grand-father of the deceased. It is the evidence of PW.1 and PW.2 to the effect that the appellant/accused No.1 was giving much ill-treatment and cruelty to the deceased and prior to one year from committing suicide the appellant/accused No.1 and another elderly person in the village namely Tukaram have come to the house of PWs.1 and 2 and stated that 19 now onwards the deceased would be looked after well and there would not be any problem to the deceased. Therefore, believing their words PW.1 had sent her daughter to the house of the appellant/accused No.1. Therefore, it is the evidence of PW.1 that for continuously for long 10 years the appellant/accused No.1 was giving ill-treatment to the deceased and then he received telephonic massage that the deceased had sustained burn injuries and then she was shifted to the hospital at Solapur. Therefore, PW.1 went to the hospital and saw her daughter deceased that she had sustained burn injures but was not in a position to talk and then on the next day morning she succumbed to the injuries and accordingly he has given complaint as per Ex.P.1 before the police.
22. PW.2 is the grand-father of the deceased and father of PW.1 who has also given evidence in the same line as that of PW.1. Upon considering the cross- examination of both PWs.1 and 2 the element of soon 20 before the death of the deceased it is the appellant/accused No.1 had abetted and instructed the deceased to commit suicide is not forthcoming in the course of evidence of PWs.1 and 2. Whatever the allegations made by the appellant/accused No.1 to the deceased that prompted the deceased to take such step by ending of her life committed suicide herself is not the evidences of PWs.1 and 2 except stating that the appellant/accused No.1 and other accused were giving ill-treatment to the deceased. The only evidence revealed from PWs.1 and 2 as above stated is that the appellant/accused No.1 was giving ill-treatment to the deceased and which is amounting to cruelty against the deceased. Except this evidence there is no other evidences revealed attracting Section 306 of IPC that the act of the appellant/accused No.1 is so much having intensity that much prompted the deceased to take extreme step by ending of her life by committing suicide. 21 Therefore, the evidence of PWs.1 and 2 lacks in this regard in proving the ingredients of Sections 306 of IPC.
23. Further PWs.3 and 4 who are the independent witnesses stated to be the resident of the same village in which the appellant/accused No.1 is also residing, they have stated that the appellant/ accused No.1 was giving ill-treatment both physically and mentally to the deceased. Upon considering the cross-examination of these PWs.3 and 4 and also the evidence deposed in the examination-in-chief, at the most it is revealed that the appellant/ accused No.1 was giving ill-treatment to the deceased after the marriage but there is no concrete evidence is revealed from PWs.3 and 4 that the act of the appellant/accused No.1 is of such intensity posing and ill-treating the deceased amounting abetting the deceased to commit suicide by the words or the act of the appellant/accused No.1. Therefore at the most it is revealed that the appellant/ accused No.1 was giving ill-treatment to the deceased 22 and nothing more so as to attract the ingredients of Section 306 of IPC.
24. Further PWs.5, 6, and 7 are stated to be the independent witnesses but they have turned hostile to the prosecution case and did not depose anything against the appellant/accused No.1 that the act of the appellant/accused No.1 constitute attracting the offences as alleged.
25. Now it is worthwhile to observe here that the prosecution has produced dying declaration as per Ex.P.5. Upon considering the dying declaration Ex.P.5 undisputedly as per the prosecution case the said statement Ex.P.5 was given by the deceased before her death before DW.2-The Special Executive Magistrate, Solapur. Ex.P.5 is in Marathi Language as the deceased was taking treatment in the hospital at Solapur. Therefore, DW.2 had recorded the statement of the 23 deceased in the hospital in Marati language then it was translated into Kannada language by DW.1.
26. As per the prosecution case after giving the statement as per Ex.P.5 the deceased succumbed to the burn injuries on 04.07.2010 at morning 6.00 a.m. therefore the statement given by the deceased while taking treatment in the hospital had attained the characteristic as dying declaration as per Section 32 of the Indian Evidence Act. While considering Ex.P.5 the original dying declaration is in Marathi Language and its translation is Ex.P.6. That it is emerged from dying declaration that when the deceased was preparing tea from the stove then she caught fire and she had sustained burn injuries and then her husband had come to rescue her by putting blanket on her body then the appellant/accused No.1 had taken the deceased to the hospital at Solapur for treatment. Therefore, this is the dying declaration produced by the prosecution which are found at Exs.P5 and P6. Therefore, as per the 24 prosecution evidence it is revealed that the fire caught by the deceased was an accidental in nature and there is no deliberate act by the appellant/accused No.1 that prompted the deceased to take such extreme step by pouring kerosene and commit suicide.
27. On the other hand, deceased had told before the DW.2 Taluk Executive Magistrate that the appellant/accused No.1 being her husband had tried to rescue her to save the life of her by putting blanket on the body then he had taken the deceased to the hospital for treatment at Solapur. Therefore, the evidence of the prosecution itself goes to prove that there is no deliberate act on the part of the appellant/accused No.1, constituting offence that the appellant/accused No.1 has committed the offence alleged.
28. At this stage, the learned High Court Government Pleader had argued that while the deceased was giving statement before the Taluk Executive 25 Magistrate, the appellant/accused No.1 was very much present in the room/ward. Therefore fearing about her husband/appellant the deceased might have given such statement and it is revealed in the course of cross- examination of DW.2 regarding the presence of the appellant/accused No.1 while the deceased was giving statement before DW.2 Taluk Executive Magistrate. Even though it is revealed from the course of cross- examination of DW.2 Taluk Executive Magistrate the appellant/accused No.1 was present in the room/ward when the deceased was taking treatment but that cannot be made that the appellant/accused No.1 had influenced the mind of the deceased before giving such statement. There is no evidence by the prosecution to show that the appellant/accused No.1 had influenced the mind of the deceased for giving such statement except showing the presence of the appellant in the room/ward. The cumulative effect of these evidences are appreciated and visualized it is undisputed fact that as 26 per the prosecution case the appellant/accused No.1 himself has taken the deceased to the hospital for treatment at Solapur and without there being time gap has taken the deceased and soon after taking into the hospital the treatment was started by the hospital authorities and therefore, in this regard there are no evidences on the part of the prosecution that the appellant/accused No.1 had influenced the mind of the deceased while taking treatment in the hospital and this can be appreciated that soon after the incident the deceased was attended with treatment. Therefore, it is the burden cast on the prosecution to show that the appellant/accused No.1 had influenced the mind of the deceased to give such statement but there is no such evidences revealed from the prosecution side to show that the appellant/accused No.1 had influenced the mind of the deceased for giving such statement. When this being the absence of the evidence on the part of the prosecution the dying declaration produced by the 27 prosecution itself can be accepted while considering and appreciating the evidences in the present case.
29. From the evidence of PW.1 it is revealed that the deceased succumbed to the burn injuries sustained by her and the evidence of PWs.8 and 10 are formal in nature as they have stated sequence of events during the course of investigation.
30. Therefore, the prosecution has not placed cogent evidences in this regard that the act of the appellant/accused No.1 constitutes abetting the deceased to commit suicide, except the allegation against the appellant that the appellant/accused No.1 was giving ill-treatment to the deceased when the deceased was alive. Furthermore the marriage of the deceased was solemnized with the appellant/accused No.1 10 years before from the date of the incident. At the most it is proved that the appellant/accused No.1 has given ill-treatment to the deceased when the 28 deceased was leading her marital life in the house of the appellant/accused No.1. But there are no ingredients are revealed from the prosecution evidences that the act of the appellant/accused No.1 which words uttered by the appellant/accused No.1 constitutes attracting the offence under Section 306 of IPC that prompting the deceased to take such steps by ending her life by committing suicide.
31. The learned counsel for the appellant has relied on the judgment of the Hon'ble Supreme Court in the case of Rajbabu & Anr. Vs. State of M.P. reported in IV (2008) CCR 90 (SC). In similar circumstance their Lordship were pleased to observe at paragraph No.15 which is as follows:
"15 .In the instant case there is no direct evidence to establish that the appellant 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 29 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 IPC. 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 or any relative of her husband had subjected her to cruelty. 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 or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of 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. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh reported in (2001) 9 SCC 618 wherein this Court observed:
"12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the 30 field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression `may presume' suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to `all the other circumstances of the case'. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression -- `the other circumstances of the case' used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase `may presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which 31 says -- `Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it'"
In State of W.B. v. Orilal Jaiswal reported in (1994) 1 SCC 73 this Court observed:
"15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of the Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater (1950) 2 All ER 458 (All ER at p. 459) has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter."32
32. Therefore, upon the principle of law laid down by the Hon'ble Supreme Court stated supra and also considering the ingredients of offence under Section 306 of IPC as discussed above, the prosecution has not proved none of the ingredients so as to attract offence under Section 306 of IPC against the appellant.
33. But upon considering the evidence on record as discussed above since P.Ws.1 and 2 have categorically stated that the deceased was always telling to them that the appellant was giving ill-treatment both physically and mentally and subjecting her to cruelty when the deceased was leading marital life in the appellant's house. The same is also told by P.Ws.3 and 4 in their evidences that the appellant was subjecting the deceased to cruelty. Therefore, the ingredients of offence under Section 498-A of IPC are attracted as against the appellant herein that the appellant has committed offence under Section 498-A of IPC. 33 Therefore, upon considering the discussion as made above, I am of the opinion that the prosecution has failed to place cogent and reliable evidence before the Sessions Court to show that the deceased committed the suicide at the instance of abetment committed by the appellant and at the most it is proved that the evidence alleged against the appellant so far as Section 498-A of IPC are proved. Therefore, in this regard, this court being the first appellate court appreciating the evidences but the learned Sessions Judge just swayed away by the depositions deposed by P.W.2 that the act of the appellant constitutes abetting the deceased to commit suicide but there is no any legal evidence on record as put forth by the prosecution. Therefore, the order of the Sessions Court recording conviction of the appellant for the offence under Section 306 of IPC is not correct thus it is liable to be set aside. But so far as the evidence for the offence under Section 498-A of IPC as the prosecution evidence reveals that the deceased was 34 always subjecting cruelty in the house of the appellant after the deceased had been to the house of the appellant to lead marital life. Therefore, evidences are sufficient against the appellant to say that the appellant had subjected the deceased which attracts the offence under Section 498-A of IPC and thus in this way the learned Sessions Judge has correctly appreciated the evidence on record holding that the appellant is guilty of the offence under Section 498A of IPC which warrants no interference at the hands of this court. Therefore, the appeal is allowed in part and in this regard the judgment of conviction and order of sentence recorded by the Sessions Court is liable to be modified to the extent above stated. Hence, the following:
ORDER The Criminal Appeal No.3556/2013 is hereby allowed in part.
The judgment of conviction and order of sentence recorded by the learned III Additional 35 Sessions Judge, Bijapur in Sessions Case No.95/2011 dated 11.03.2013 so far as convicting the appellant/accused No.1 against the offence under Section 498-A of IPC is confirmed.
The judgment of conviction and order of sentence in so far as convicting the appellant/accused No.1 under Section 306 of IPC is hereby set aside and it is ordered that the appellant is acquitted of the offence under Section 306 of IPC.
The learned III Addl. District and Sessions Judge, Vijayapura is hereby directed to secure the appellant - accused No.1 so as to causing him to serve the sentence as awarded by the learned Sessions Court for the offence under Section 498-A of IPC.
Sd/-
JUDGE Sn/BL