Karnataka High Court
Basavaraju @ Kumba S/O Basavaiah vs State Of Karnataka on 4 June, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
CRL. APPEAL NO. 1982/2005
BETWEEN:
BASAVARAJU @ KUMBA
S/O BASAVAIAH,
AGED ABOUT 28 YEARS,
R/O BACHANAHALLI VILLAGE,
MALAVALLI TALUK,
MANDYA DISTRICT
... APPELLANT
(BY SRI L.SUDHARSHAN, ADV.,)
AND:
STATE OF KARNATAKA
REP. BY S.P.P
HIGH COURT, BANGALORE
... RESPONDENT
(BY SRI RAJA SUBRAMANYA BHAT, HCGP.,)
THIS CRL.A FILED UNDER SECTION 374 CR.P.C
AGAINST THE JUDGEMENT DATED 06.10.2005 PASSED BY
THE S.J., MANDYA IN S.C.NO.126/2003, CONVICTING THE
APPELLANTS-ACCUSED NO.1 FOR THE OFFENCE P/U/S
498-A AND 306 IPC AND SENTENCING HIM TO UNDERGO
R.I FOR 3 YEARS FOR THE OFFENCE P/U/S 498-A IPC AND
ALSO PAY FINE OF RS.200/-, SIMILARLY ACCUSED NO.1
IS SENTENCED TO UNDERGO R.I FOR 4 YEARS FOR THE
OFFENCE P/U/S 306 OF IPC ALSO PAY FINE OF RS.250/-.
THE SENTENCES IMPOSED SHALL RUN CONCURRENTLY.
2
This appeal coming on for hearing this day, the court
delivered the following
JUDGMENT
Convicted accused is in appeal against his conviction for the offence punishable under Sections 498-A and 306, I.P.C.
2. Heard Sri Sudarshan for the appellant and Sri Raja Subrahmanya Bhat, HCGP, representing the respondent- State.
3. From what the learned counsel for the appellant and learned HCGP have adverted and also on perusal of the records, it is seen Nagamma-PW1 lodged report at the jurisdictional police station on 6.12.2002 alleging that her daughter (since deceased) was married to the appellant- Basavaraju @ Kumba, s/o Basavaiah after meeting the demands raised by him and his parents, Basavaiah and Vengamma (2nd accused), sister-Parvati (3rd accused), brother-Swameeji @ Shivamalu (4th accused and sister-in- law-Madamma (5th accused) to give Rs.50,000/- in cash, a gold chain, gold ring and other valuables. The marriage 3 was performed on 13.5.1999 after giving Rs.25,000/- in cash and gold articles as demanded. After the ceremony, Nagamma entered matrimony in the house occupied by the appellant and his relatives referred to above. However, her life became miserable within a few months as the appellant and other family members tortured her. He would consume liquor everyday and beat her mercilessly, and abuse her as a 'barren woman' incapable of producing progeny. The marriage was, therefore, a failure. However, Nagamma endured the onslaught for some time till it became unbearable. She reported the matter to the police on one occasion when she was beaten under the influence of liquor; police had summoned the appellant and reprimanded him. Despite such stern warning, he repeated earlier conduct giving her no hope of better life. It is also alleged some attempts were made to reason out with the appellant but it was a failure.
4. On 6.12.2002 while at home, Nagamma hanged herself to death. Report in this regard was lodged by her mother-Nagamma (PW1) on which investigation 4 commenced. Inquest was drawn in the presence of witnesses regarding injuries found on the person of the deceased, indicating she was subjected to violence before her death. As PW1-Nagamma had, in her report, alleged illegal demand for dowry raised by the appellant and his relatives, the I.O. raised charge for the offences punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act as also Section 498-A and 304-B, I.P.C.
5. The appellant herein along with his mother- Vengamma, sister, Swamijee and Madamma (accused nos.2 to 5) were arraigned as accused. However, I.O. found no material against them and filed final report only against the appellant. He pleaded not guilty, necessitating trial.
6. During trial, prosecution examined 25 witnesses and relied on 34 documents and 3 M.Os. During the course of evidence, learned judge found the evidence of PW1- Nagamma, PW5-Mallaiah and PW6-Arasaiah indicts appellant's sister, brother and also his sister-in-law. 5 Therefore, exercising power conferred under Section 319, Cr.P.C., they were summoned to face trial with the appellant herein. Thus, in all five persons were tried for the offences indicated above. However, in the final analysis of evidence, he found no incriminating aspects sufficient to indict them except raising suspicion. Therefore, by the impugned judgment, he acquitted accused nos.2 to 5 of all charges levelled against them and acquitted the appellant for the offences punishable under Sections 498-A, I.P.C. As regards the charge under Sections 3 and 4 of the D.P. Act, he found no sufficient material and acquitted him. Regarding the charge for the offence under Section 304-B, I.P.C., learned judge concluded it was not established as there was no proof for demand for dowry. Therefore, the offence was taken out of the mischief of Section 304-B and brought within the mischief of Section 306, I.P.C. Assailing it, he is in appeal.
7. Sri Sudarshan, learned counsel for the appellant, would draw my attention to certain categoric statements in the evidence of PW1-Nagamma-mother of the deceased. 6 She has, in unequivocal terms, stated appellant was beating, Nagamma only under the influence of liquor. His relatives did not indulge in such act. She spoke of demand from the accused regarding dowry; her version is, accused demanded Rs.50,000/-, watch, clothes, chain, ring for the boy and earrings and Jhumki for the girl, out of which Rs.25,000/- was paid prior to the marriage and on the date of marriage, they gave Rs.25,000/- cash, gold ring, watch as promised. Thus, she spoke of Rs.50,000/- being given as dowry in cash. But her husband Mallaiah-PW5 gave a different version of the demand. According to him, accused demanded Rs.10,000/- which he gave and except that, they raised no other demand. He has clarified he took loan of Rs.40,000/- from one Madaiah of Malavalli and Rs.7,000/- and Rs.6,000/- for marriage expenses.
8. Pointing out the above statements, learned counsel submits Rs.50,000/- could not have been paid by PW1 in view of the categoric statement of her husband-PW5. He draws my attention to the categoric statement by PW5 that no harassment was caused by the relatives of the 7 accused/appellant. The other contention is, PW6-uncle of the deceased speaks of Rs.50,000/- being paid as spoken to by PW1 which is not in corroboration with the evidence of PW5. Therefore, he submits demand for dowry and its payment was not established, and hence the trial court had rightly acquitted him of the charge under Sections 3, 4 and 6 of the D.P. Act. Thus, the charge for the offence under Section 306, I.P.C. for which he was charged to be established by proving abetment.
9. Learned counsel submits to sustain the charge under Section 306, I.P.C., necessarily prosecution had to spell out overt acts of the accused which amount to abetment. Regarding assault on the victim, he submits PW1, in an exaggerated version, has spoken of the appellant beating the victim and tonsuring her head. These incidents are not mentioned in the complaint and I.O. has recorded no finding as to whether such incident has occurred. Therefore, the alleged tonsure of the head is a false statement. As regards assault on her is concerned, he submits accused was a victim which fact 8 PW1 has admitted by saying accused was beaten by the police and they told her he has been taught a lesson and he will not indulge in similar acts. Likewise, he draws my attention to the statement of the police officer who says they registered NCR.125/01 on 2.5.2001, but earlier to it appellant had submitted report which was registered as NCR.122/01 on 30.4.2001. On the basis of these reports, police had summoned the appellant and the deceased and had sternly warned the appellant.
10. Be that as it may, these aspects no doubt show appellant was summoned to the police station, but we cannot ignore the material evidence on record that such summoning was in response to allegation of assault and beating by the accused. That itself establishes the appellant had been indulging in acts of violence during her matrimony with him. Thus, the overt acts of the accused undoubtedly show he indulged in torturous conduct on the victim.
9
11. Whether his acts constitute cruelty as defined under Section 498-A, I.P.C. will be the next question. From what is on record, it is seen appellant has been indulging in acts of violence which certainly amounts to cruelty. Whether in a drunken state or otherwise, the fact is victim was assaulted, beaten frequently. It brings the offence within Section 498-A, I.P.C. Therefore, I am satisfied conviction of the appellant-accused for the offence punishable under Section 498-A, I.P.C. is justified and needs no interference.
12. However, the conviction of the appellate is for the offence under Section 306 I.P.C. The State has not challenged his acquittal granted for the offence punishable under Section 304-B, I.P.C. or Sections 3, 4 and 6 of the D.P. Act. Therefore, prosecution had to establish that the suicide committed by the victim was a result of abetment by the accused. In this regard, material evidence should meet the requirement of Section 107, IPC. If we keep this in mind and examine evidence, we find no such material in evidence to prove abetment as defined in Section 107 IPC. 10 Thus, the conviction of the appellant for the offence under Section 306, I.P.C. is on insufficient material and needs interference.
13. In the result, conviction of the appellant for the offence under Section 306, I.P.C. is set aside. The appeal is allowed in part. Conviction of the appellant for the offence under Section 498-A, I.P.C. is confirmed. His conviction for the offence under Section 306, I.P.C. is set aside.
14. Learned counsel for the appellant brings out that appellant was in judicial custody for 2 ½ years. The punishment imposed by the learned trial judge is three years rigorous imprisonment. Under the circumstances, for the offence punishable under Section 498-A, I.P.C., he is sentenced to imprisonment for the period already undergone by him. The fine amount of Rs.200/- imposed is, however, confirmed.
Sd/-
JUDGE vgh*