Karnataka High Court
Sri Gangaraju vs State By Deputy Superintendent Of ... on 12 June, 2017
Equivalent citations: 2017 (4) AKR 18
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRL.A NO.1168 OF 2010
BETWEEN:
1. SRI. GANGARAJU
S/O DODDANAGAPPA
AGED ABOUT 28 YEARS
2. SMT. LAKSHAMAMMA
W/O DODDANAGAPPA
AGED ABOUT 40 YEARS
3. SRI. SOMESHEKAR
S/O DODDANAGAPPA
AGED ABOUT 45 YEARS
ALL ARE RESIDENT OF
BHACHANAHALLI VILLAGE
SIDLAGHATTA TALUK
CHICKBALLAPUR DISTRICT.
...APPELLANTS
(BY SRI: M NARAYAN, ADVOCATE)
AND:
STATE BY DEPUTY
SUPERINTENDENT OF POLICE
2
A.D.C., C.I.D.
BENGALURU.
...RESPONDENT
(BY SRI. K NAGESHWARAPPA, HCGP)
THIS CRL.A IS FILED U/S 374(2) CR.P.C., PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT DATED 30.07.2010
PASSED BY THE ADHOC S.J. CHINTAMANI IN S.C NO.88/09 -
CONVICTING THE APPELLANTS/ ACCUSED FOR THE OFFENCE
P/U/S 498(A) OF IPC AND THE APPELLANTS/ACCUSED ARE
SENTENCED TO UNDERGO SIMPLE IMPRISONEMNT FOR TWO
YEARS AND PAY A FINE OF RS.2,000/- EACH IN DEFAULT OF
PAYMENT OF FINE THEY SHALL UNDERGO ONE FOURTH OF THE
SUBSTANTIVE SENTENCE AWARDED AS ABOVE.
THIS CRL.A COMING ON FOR FINAL HEARING THIS DAY,
THE COURT PASSED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the judgment of conviction and sentence passed by the Fast Track Court-II at Chintamani in SC No.88/2009 dated 30.07.2010 in convicting the accused Nos.1, 2 and 4 for the offence punishable under Section 498A of IPC.
2. The above said accused persons were acquitted by the Trial Court for the offences under Sections 304B and 306 of IPC and under Sections 3, 4 and 6 of DP Act. The Trial Court has sentenced the appellants-accused Nos.1, 2 and 4 for the offence 3 punishable under Section 498A to undergo simple imprisonment for two years and to pay fine of Rs.2,000/- each in default of payment of fine, they shall undergo 1/4th of the substantive sentence awarded to them.
3. Before adverting to the grounds urged by the learned Counsel for the appellants, it is just and necessary for this Court to have a brief factual matrix of this case.
The Deputy Superintendent of Police, ADC, CID, Bengaluru has submitted a chargesheet after thorough investigation against the accused for the offences punishable under Sections 3, 4 and 6 of DP Act and also under Sections 498A, 306 and 304B of IPC. The allegations made against the accused which led to filing of a chargesheet are that the accused No.1 - Gangaraju has married the daughter (Varalakshmi) of PW1 by name Eramma on 14.12.2003 which is not in dispute. Thereafter, it is alleged that at the time of marriage, the amount of Rs.25,000/- was given in cash alongwith some golden neck chain, a golden ring, a watch etc., to the accused persons. Even after the marriage, it is alleged that they demanded for dowry and also to bring some 4 gold and silver articles. The accused persons started ill-treating and harassing the deceased and they were torturing the deceased in order to drive her to commit suicide. In this background, it is alleged that on 10.04.2009, the deceased Varalakshmi (the wife) was taken by her husband i.e., accused No.1 from her parental house. The said lady had been to the parental house about 20 days back for the purpose of attending the marriage of her younger sister. On 16.04.2009, the father of accused No.1 by name Doddanagappa came to the house of complainant and enquired about the deceased and on 17.04.2009 the complainant and others had come to the village of accused and they found the dead body of deceased Varalakshmi in a pond behind the house of accused persons. Immediately, they lodged a complaint making allegations that the accused persons must have caused the death of the deceased or they are the root cause for the death of the deceased.
The Trial Court after securing the presence of accused framed the charges and tried them for the above said offences. 5 The prosecution in order to prove the guilt of accused examined as many as 26 witnesses as PWs.1 to 26 and got marked Exs.P1 to P28 and also during the course of cross examination of prosecution witnesses got marked Exs.D1 and D2. The accused did not choose to lead any evidence on their side. After examination of the accused under Section 313 Cr.P.C., the trial Court has convicted the accused Nos.1, 2 and 4 for the offence under Section 498A of IPC. The Trial Court in fact at various places of its judgment has categorically stated about the non proof of ill-treatment and harassment while dealing with the offences under Sections 3, 4 and 6 of DP Act, as well as for the offence under Sections 304B and 306 of IPC. However, it has only relied upon the evidence of PWs.1 to 5 in order to draw an inference of the guilt of accused for the offence under Section 498A of IPC.
4. Learned Counsel for the appellants strenuously contended before this Court that when there is no material available to attract the demand of dowry earlier to the marriage or demand of dowry after the marriage and when there is no 6 material to show that soon before the death of said lady, there was any ill-treatment and harassment to attract Section 304B of IPC, there cannot be any evidence to draw an inference that the accused persons have ill-treated and harassed the deceased.
5. As could be seen from the judgment of Trial Court, it is true that, the Trial Court has acquitted the accused persons for the offences as noted above and have come to the conclusion that, the prosecution has failed to prove the guilt of accused by proving the demand of dowry or any ill-treatment or harassment with reference to dowry. But the Court has come to the conclusion that other than the demand of dowry, there was ill- treatment and harassment on the ground that the deceased did not beget the child and she is a barren lady and having frustrated in life, the said lady was forced to commit suicide. Therefore, the Court found some material with regard to the ill- treatment by the accused persons by way of abusing her as barren lady as she did not beget a child. Whether that evidence is sufficient to draw an inference of the guilt of accused in order 7 to convict them for the offence under Section 498A has to be looked into by this Court.
6. The learned High Court Government Pleader has argued before this Court that though the evidence is lacking so far as the demand of dowry, but nevertheless, the Court has considered the other nature of ill-treatment by the accused persons which are sufficient to drive the woman to commit suicide. Therefore, there is no reason to interfere with the judgment of conviction and sentence passed by the Trial Court.
7. On the above said rival contentions, the point that would arise for the consideration of this Court is:
"Whether the prosecution has proved beyond reasonable doubt that the accused have ill-treated and harassed or treated the deceased with such cruelty which are sufficient to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mentally or physically)?"
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8. In order to answer this question, it is just and necessary to look into the provisions of Section 498A of IPC to ascertain what exactly the prosecution has proved in order to attract Section 498A of IPC, which reads as follows:
"498A. 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.
Explanation - For the purpose 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."
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9. The Trial Court after appreciation of the evidence has held that, there is no proof to attract Section 498A(b) of IPC. In order to establish 498A of IPC Explanation sub clause (a), the prosecution has to prove the willful conduct of accused persons which is of such nature as is likely to drive a woman to commit suicide or cause grave injury or danger to life, limb or health. Therefore, it is not a mere conduct of the accused, which can satisfy the Court to convict the accused. It is willful misconduct of the accused that means the accused must have intentionally and willfully conducted themselves with clear intention that woman should commit suicide or she should cause grave injury or danger to life, limb or health. Therefore, something more has to be proved before this Court other than the mere conduct of accused, to establish their intention and willfulness in conducting themselves.
10. In this background, the evidence of prime witnesses to the prosecution has to be looked into. There is no need for this Court to examine the evidence of other witnesses. Hence, the evidence of kith and kin who are the close associates and 10 relatives of the deceased has to be looked into as they are the only proper persons to explain all these things. As already submitted by both the Counsel, the evidence of PWs.1 to 5 are required to be examined by this Court. Almost all other witnesses have turned hostile and there is no material available to show the conduct of accused persons to convict them from the evidence of other witnesses. In this background, now let me consider the evidence of relevant witnesses i.e., PWs.1 to 5.
11. PW1 - Eramma has stated in her evidence about the relationship, marriage, earlier dowry etc., So far as the point in question is concerned, she has deposed that accused No.4 was ill-treating the deceased by assaulting her on the ground that his brother did not get any child and it is also stated by her that other accused persons were also abusing and assaulting her. But it is not stated as to why and for what reason the other accused were ill-treating and harassing her. Except this one sentence in her examination-in-chief, nothing is there to show as to how accused No.4 was actually abusing the deceased and in what manner. Though she has stated that accused No.4 was 11 abusing her, but in what manner and what are the words that were used by accused No.4 or any of the accused have not been meticulously stated by PW1. In other words, whether those abusive words are sufficient to cause any shunning effect or provoke the deceased to commit suicide or to cause grave injury to her limb or life is not stated. Even there is no allegation against accused No.4 that he was abusing the deceased in a particular manner.
12. I have also noted in the examination-in-chief of PW1 itself that, except stating that the accused persons were assaulting, nothing has been meticulously stated, as to why they were assaulting the deceased. In the course of cross examination, the said aspect has been denied. It is an admitted fact that for a period of 20 days prior to the date of incident, the deceased was in her parental house. So what transpired in her parental house for these 20 days is also not forthcoming. There is no mention whatsoever that the accused persons had been to the house of her parents and so also they abused this lady as 12 barren lady as she did not beget a child and therefore, this misconduct driven her to commit suicide.
13. PW2 - Munishamappa is the father of deceased. In the course of examination-in-chief, it is stated that the accused persons were abusing the deceased as she did not beget a child, but he has never stated that they were assaulting her or accused No.4 was assaulting her in any manner for that particular purpose. Even he has not stated as to what was the abusive words that were used by the accused persons to abuse the deceased so as to consider that these abusive words are sufficient to drive a lady to commit suicide. In the absence of that, the Court cannot draw an inference that those abusive words are sufficient to drive a woman to commit suicide.
14. Likewise, PW3 - Narasimhamurthy has also stated in a omnibus manner that all accused persons was ill-treating and harassing the deceased, but he also never stated that in what manner, they were ill-treating and harassing the deceased. He has also stated that the accused persons themselves took the deceased to the hospital for treatment and to examine whether 13 she could beget a child or not. Therefore, in the evidence of all these witnesses, nothing is forthcoming with regard to the specific ill-treatment or harassment or any specific abusive words by the accused persons to the deceased so as to drive her to commit suicide.
15. PW4 - Eregowda has also stated that the accused persons were actually looking after the deceased with all love and affection but accused No.1 was telling that he wants to marry second time to beget a child as the deceased did not get any child. Except that, nothing has been stated by him about any ill-treatment or harassment meted out by the accused persons on the deceased.
16. PW5 - Seenappa has also not stated any specific allegations as to how and in what manner the accused were ill- treating and harassing the deceased. He has never stated that the accused were ill-treating her with intention to drive her to commit suicide on the ground that she did not beget any child. Except the above said evidence of PWs.1 to 5, in the above said 14 manner nothing is available to the prosecution that actually accused persons were ill-treating and harassing the deceased.
17. Now coming to the evidence of PW15 - Dr.Jayanti who actually treated the deceased has deposed before the Court that on 19.10.2008, much prior to the incident, she has examined the deceased who was brought to the hospital. The deceased has stated before this witness that, she did not beget child. On examination, this doctor has advised them to have ultrasound and blood examination and also the examination of blood and semen of her husband. Thereafter, they did not come to her again for the purpose of taking any advice.
18. PW14 - Dr.Aruna has also examined this lady and has conducted scanning examination and other examination and she has stated that after examination, she sent the deceased back to Dr.Jayanthi.
19. Therefore, on careful perusal of the evidence of both the witnesses, there is no material to show that the deceased was not capable of procuring the child. The doctor has not 15 stated that in future the said lady was unable to procure any child. In the above said circumstances, there is no reason as to why accused persons had abused her when they themselves have taken her to the doctor with reference to the procreation of child. Otherwise, they should have simply sent her back to her parental house.
20. Therefore, looking to the above said facts and circumstances, the evidence placed before the Court is so insufficient and is shaky in nature compared to the evidence of each of said witnesses which is not sufficient to draw any inference or guilt of the accused beyond reasonable doubt. Mere use of abusive words are not sufficient to draw an inference that such words or conduct is sufficient to drive the woman to commit suicide. The intention of the accused persons shall be gathered from all the surrounding circumstances. The Trial Court is of the opinion that their conduct so far as demand of dowry with reference to offence under Sections 306 and 304B of IPC is not made out. It cannot be at any stretch of imagination be said that the conduct of the accused as spoken to by PWs.1 to 5 is 16 sufficient to draw an inference of the guilt of accused under Section 498A of IPC. Therefore, in my opinion the Trial Court has committed serious error in convicting the accused persons for the offence under Section 498A read with Section 34 of IPC, particularly, when the Court has acquitted them for the offence under Sections 304B and 306 of IPC and Sections 3, 4 and 6 of DP Act on the same evidence. Hence, in my opinion the prosecution cannot be said to have proved the case against the accused persons for the offence under Section 498A of IPC beyond all reasonable doubt. Therefore, on considering all the above said circumstances, the accused are entitled to be acquitted for the offence under Section 498A of IPC also. Hence, I answer the above point in 'Negative' and proceed to pass the following:
ORDER The appeal is allowed. The judgment of conviction and sentence passed by the Trial Court in SC No.88/2009 dated 30.07.2010 for the offence under Section 498A read with Section 34 of IPC is hereby set aside.17
Consequently, the appellants-accused are acquitted for the offence under Section 498A of IPC. The bail bonds and surety bonds are cancelled.
The amount of fine in deposit, if any, before the Trial Court, is ordered to be refunded to the concerned accused.
Sd/-
JUDGE *bgn/-