Karnataka High Court
Sangareddy vs The State Of Karnataka on 28 January, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 28th DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.784 OF 2007
BETWEEN:
1. Sangareddy,
S/o Dyavanna,
Aged about 30 years,
Occ: Barbar,
R/o Ganesh Oni, Deodurga,
District Raichur.
2. Sabanna,
S/o Basanna Hadpad,
Aged about 38 years,
Occ: Barbar,
R/o Hemanur now at Deodurga,
District Raichur. .. APPELLANTS
(By Shri Ishwarraj S Chowdapur, Advocate)
AND:
The State of Karnataka. .. RESPONDENT
(By Shri Sanjay A Patil, Additional State Public Prosecutor)
2
This Criminal Appeal is filed under Section 374(2) of the
Criminal Procedure Code, 1973 against the judgement dated
24.4.2007 passed by the Additional Sessions Judge and
Presiding Officer, Fast-track Court-IV, Raichur in
S.C.No.4/2006 convicting the accused 1 and 2 for the offence
punishable under Sections 498A and 306 read with Section 34
of the Indian Penal Code, 1890 and sentencing them to undergo
imprisonment for two years and to pay a fine of Rs.2,000/- each
for the offence punishable under section 498A of the Indian
Penal Code, 1890 in default of payment of fine they shall
undergo imprisonment for six months and etc.
This appeal coming on for hearing this day, the court
delivered the following :-
ORDER
Heard the learned Counsel for the appellants and the learned Additional State Public Prosecutor.
2. The brief facts of the case are as follows:
The appellants herein were the accused before the court below. Appellant no.1 was married to Savitramma, who was the daughter of PW.10 Basavaraj and sister of PW.3 Ramakrishna Hadpad and they had married about ten years prior to the incident and they were residing in their matrimonial 3 home since three years prior to the incident at Goudigere village. Immediately after their marriage, they had resided at Goudigere village and thereafter had moved to Ganesh Oni of Deodurga. Appellant no.1 was a barber by profession. Appellant no.2 was the younger brother of the mother of appellant no.1 and he also had a barber shop at Deodurga.
It is alleged by the prosecution that appellant no.1 did not have any children by his wife Savitramma. Though she had conceived on five occasions, she had aborted on all the five occasions. Therefore, it is alleged that accused no.2, who used to visit their home constantly, provoked appellant no.1 to desert Savitramma and to take a second wife, so that he may have healthy children. It was this which prompted appellant no.1 to constantly harass and subject Savitramma to cruelty, while humiliating and calling her a barren woman. This had been carried on relentlessly over a number of years and she was also threatened that he would immediately take a second wife and it was not possible for her to live along with him and it is 4 this which drove her to commit suicide by hanging during the night of 5.9.2005 and 6.9.2005. This, the prosecution has alleged on the basis of the statements of several witnesses, including the father, brother and mother of the deceased and it is on that basis, that a criminal case was instituted against the present accused.
3. The court below, on consideration of the material evidence placed on record and the defence taken by the accused, framed the following points for consideration:
1. Whether the prosecution proves that both accused in furtherance of their common intention subjected the deceased to cruelty within the meaning of Section 498-A of IPC?
2. Does prosecution further prove that both accused in furtherance of their common intention abetted the commission of suicide by deceased?5
The court below has held both the points in the affirmative and has sentenced the accused - appellants to undergo imprisonment for two years and to pay a fine of Rs.2,000/- each, for an offence punishable under Section 498A of the Indian Penal Code , 1890 (Hereinafter referred to as the 'IPC', for brevity) and further sentenced to undergo simple imprisonment for five years and to pay fine of Rs.5,000/- each for an offence punishable under Section 306 read with Section 34 of the IPC. It is that which is under challenge in the present appeal.
4. The learned Counsel for the appellants, while taking this court through the record, would submit that the prosecution has rested its case entirely on the hearsay evidence of PWs.3, 9 to 13 and would point out that PW.3 was the brother of the deceased, PW.9 was the sister and PW.10 was the father, PW.11 was the mother and PW.13 was also a relative of the deceased. Accordingly, the learned Counsel would submit that 6 the maternal family of the deceased was apparently distraught at the untimely death of the deceased and held appellant no.1 unreasonably responsible for the same and with a view to punish the appellant without any basis and to seek vengeance for the untimely death of Savitramma, have sought to make out a false case by their respective testimony, which again is not consistent, which is to the effect that there was constant harassment and cruelty meted out to Savitramma by appellant no.1 and that it was appellant no.2, who was instrumental in goading appellant no.1 to constantly harass and ill-treat the deceased Savitramma.
The learned Counsel would submit that to constitute an offence punishable under Section 306 of the IPC and to establish that there was cruelty falling within the scope of Section 498A of the IPC, the evidence ought to have been direct and of a greater magnitude rather than the allegation that there was threat by appellant no.1 to take a second wife and also that there was constant harassment of the deceased by 7 appellant no.1, as she was unable to bear a child even after ten years of marriage and though she had conceived on five occasions, she having aborted, was the main reason for the deceased to have committed suicide. He would submit that the circumstances would also point to a situation where the deceased has committed suicide on account of severe depression that she might have suffered, even without any harassment or other ill-treatment by appellant no.1. The evidence of the witnesses namely, PWs.3, 9 to 13 are to the effect that they were told by the deceased of such ill-treatment and harassment, which would at best be hearsay evidence and could not be evidence of any direct knowledge and information of appellant no.1's conduct and acts of instigation, which was of such degree and nature, as to drive the deceased to commit suicide. The exaggerated testimony of the said witnesses could not be accepted on the face value in the absence of any independent evidence of such harassment. Admittedly, the marriage of the deceased and appellant no.1 was ten years old 8 and they were of sufficient maturity to have withstood their married life without there being any children and to allege that there was such instigation to drive the deceased to commit suicide after long years of marriage and the accused being primarily responsible, cannot be readily accepted. The said witnesses were not in a position to observe the conduct and behaviour of appellant no.1 and the deceased as husband and wife in their day-to-day life and the testimony to the effect that on occasion, the deceased had narrated about the ill-treatment or cruelty, could not be accepted on its face value, to enable the court below to impose a stringent punishment of imprisonment for five years without anything more. The learned Counsel would submit that for the appellants to be visited with such stringent punishment, the prosecution should have established its case beyond all reasonable doubt. An element of doubt that the deceased might have committed suicide out of sheer depression and not necessarily on account of any instigation by appellant no.1, let alone by appellant no.2, 9 who was admittedly the maternal uncle of appellant no.1, and had nothing to do with their lives. The allegation that he was constantly visiting and goading appellant no.1 to take a second wife, cannot be readily accepted, without the first hand knowledge of any such encouragement. The learned Counsel would, therefore, submit that even if the allegations of the prosecution are held to be true, the offences punishable under Sections 498A or 306 of the IPC would not be attracted. The allegation that the appellants were constantly demanding consent from the deceased to perform the marriage of appellant no.1 for the second time with another woman, is itself seeking permission to commit an offence, which would not become any less offence even if the deceased had consented to it and any such second marriage during the subsistence of the first, would be entirely at the risk of the appellant no.1 and therefore, the consent being sought being the instigation to commit suicide is hard to accept and therefore, the learned Counsel would submit 10 that the appeal be allowed and the judgment of the court below be set aside.
5. The learned Additional State Public Prosecutor would submit that the judgment under appeal is a well considered judgment. The court below has addressed the elaborate evidence tendered at the trial in arriving at its conclusions. The same cannot be faulted even though the deceased and the appellant no.1 were married for ten years, the fact remains that the instigation to commit suicide can take place at any point of time and the sudden provocation by appellant no.2 engaging appellant no.1 to take a second wife, with or without the complicity of the deceased, had brought such pressure on the mental state of the deceased that she was driven to commit suicide. This situation can hardly be characterised as being unacceptable. The circumstance that the deceased had suffered five miscarriages over ten years of married life would have left the deceased with very slender confidence and contentment 11 and therefore, even if the degree of instigation was not of such an extent, as would normally be expected to instigate another human being to commit suicide, given the peculiar circumstance in which the deceased was placed, in that, she had suffered without children for ten years and if there was even a minor degree of instigation, it was sufficient to drive the deceased over the edge. This is exactly what has transpired. The evidence of PWs.3, 9 to 13 being characterised as hearsay evidence or the evidence of interested persons, cannot be accepted. They are certainly interested, in that, they are the parents and near blood relatives of the deceased Savitramma and they have consistantly narrated the long suffering of the deceased at the hands of appellant no.1, who was encouraged by appellant no.2 to continue such torture or torment over the years, blaming the deceased for not bearing children and constantly demanding that she consented to the appellant no.1 taking a second wife, in the expectation that such second wife will bear him healthy children. The learned Additional State 12 Public Prosecutor would point out that it is these aspects of the matter which have weighed with the trial court and rightly so and therefore, the punishment that was attracted for an offence under Section 498A or 306 of the IPC being of a greater extent than that has been imposed on the appellants, it cannot be said that the punishment is even disproportionate to the gravity of the crime. Hence, the Additional State Public Prosecutor would submit that there is no warrant for interference by this court.
6. Given the above rival contentions, the reasoning of the court below to hold that the evidence of PWs.3, 9 to 13 could be accepted, because the court could not expect the evidence of cruelty that is inflicted within the four walls of the house of the accused and merely because the investigating officer did not record the statement of the neighbourers, the case of the prosecution ought not to be doubted and has proceeded on that footing in holding that the death being unnatural, for there was no reason for her to commit suicide, 13 except if the allegations are held proved and has even held that lengthy cross-examination of the witnesses could lead to a situation where they are bound to make inconsistent statements and that by itself would not vitiate the evidence of those witnesses and has overlooked any inconsistencies in the evidence of the witnesses, to hold that the accused are guilty of the offence alleged. The very reasoning is applied in respect of accused no.2 as well. As rightly pointed out by the learned Counsel for the appellants, the prosecution was required to establish its case beyond all reasonable doubt. It is not even the case of the prosecution or the reasoning of the trial court that apart from the evidence of PWs.3, 9 to 13, there was any other direct evidence as regards the behaviour, conduct and the constant cruelty meted out to the deceased. The trial court itself has condoned the absence of any such evidence by holding that the cruelty as between husband and wife is always committed within the four walls and it is difficult to expect direct evidence of such cruelty. Even assuming that this is a 14 presumption that could be drawn in situations such as this, there ought to have been other indirect evidence even from the neighbourers and other persons apart from PWs.3, 9 to 13. As rightly pointed out by the learned Counsel for the appellants, the said witnesses were the parents and close blood relatives of the deceased and were naturally disturbed on the death of the deceased whereby she had committed suicide and the said witnesses were blinded by want of vengeance against appellant no.1 and inexplicably against appellant no.2, on the footing that they had constantly sought the permission of the deceased to enable the appellant no.1 to take a second wife, which was sufficient instigation for the woman to commit suicide.
7. The learned Counsel for the appellants has placed reliance on the case of Amalendu Pal @ Jhantu vs. State of West Bengal, 2009(4) Crimes 190, wherein the appellant had married one Dipika and they had two children. He had 15 developed an extra-marital relationship with another woman and when this relationship came to the knowledge his wife and when she objected to the same, he sought her permission to marry a second woman, which was refused and it was alleged that he was constantly torturing the deceased both physically and mentally. This had provoked the wife of the appellant to commit suicide and the appellant having been prosecuted for an offence under Section 306 of the IPC, one of the questions that arose for consideration of the apex court was, whether any of the clauses in Explanation-1 or more particularly Explanation-2 to Section 107 was attracted so as to bring the case within the purview of Section 306 of the IPC and the said question was held in the negative. In the absence of any direct evidence to show that the appellant had by his acts instigated or provoked the deceased to commit suicide, it could not be said that the appellant has done any act which would have facilitated the commission of suicide by the deceased. 16
The learned Counsel for the appellants would thus contend that the present appellant no.1 is on a better footing as he had not even taken a second wife, but the allegation was that he intended to take a second wife and hence, the instigation as would be required to make out an offence punishable under Section 306 of the IPC, required much greater degree of evidence.
8. Given the nature of evidence in the present case on hand, it cannot be said that the prosecution had established its case against the appellants beyond all reasonable doubt.
Accordingly, the appeal is allowed. The appellants are acquitted. The judgment of the court below is set aside. The bail bonds executed by the appellants stand cancelled. The fine, if any, paid by the appellants shall be refunded to the appellants.
Sd/-
nv JUDGE