Bangalore District Court
No Body Was There. He Was On The Spot Till ... vs No.1 And Deceased Mamatha Within 4-5 ... on 29 August, 2022
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 29TH DAY OF AUGUST, 2022
PRESENT:
Sri Manjunatha, B.A., LL.B.,
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
SC No.508/2012
BETWEEN
State by Vijayanagar PS.,
Bengaluru .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.V. A. Shivakumar
S/o V. N. Anantha Krishna, A/a 30 Yrs.,
2.V.A. Vinaykumar @ Vinay
S/o V. A Anatha Krishna, A/a 27 Yrs.,
Both are r/a No.4/F-6, Gajanana Apartments,
4th Cross, 8th Main, NHCS Layout,
Marenahalli, Vijayanagar,
Bengaluru City.
3.V. N. Anantha Krishna
S/o Late Narasimhaiah,
58 Yrs., (Discharged as per the order passed
by Hon'ble High Court in
Crl., Petition No. 7600/2012 dated 29.05.2013)
4.Smt. Sunandamma
C/o V. N. Anantha Krishna(Abated) .. ACCUSED
(By Sri GJ, Advocate)
*****
2
SC No.508/2012
Date of offence & time 10.10.2011 in between 23.30 to
23.30 hours
Date of report of offence 11.10.2011 3.30 hours
Date of arrest of the accused 12.10.2011
Date of release on bail A1 27.12.2011
A2 05.11.2011
Total period of custody A1 two months 22 days
A2 26 days
Name of the complainant Sri Muradihara
Date of commencement of 7.9.2013
recording of evidence
Date of closing of evidence 31.0.2019
Offences complained of U/s.498A and 306 r/w Sec.34 of
IPC
Opinion of the Judge Accused No.1 and 2 found not
guilty
JUDGMENT
The Police Sub-Inspector of Viajyanagar P.S., Bangalore, has submitted charge sheet against accused persons for the offences punishable U/s.498A and 306 of IPC in Crime No.479/2011.
2. The factual matrix of the case is that:
on 27.11.2009 marriage of deceased-Smt. H.S. Mamatha was solemnized with accused No.1 as per the customs prevailed in their community. After the marriage, deceased started to reside along with the family members of accused No.1 at No.4/F-6, Gajanana Apartments, 4th Cross, 8th Main, NHCS Layout, Marenahalli, Vijayanagar, within the limits of Vijayanagar P.S., Bangalore, the accused persons subjected the deceased both mental and physical cruelty by insulting that she would not matching to the level of accused No.1, insisting her to go out of the house and abetting her to die. Unable to 3 SC No.508/2012 bear the harassment of the accused persons on 10.10.2011 at 11.30 p.m. the deceased committed suicide by hanging herself.
The accused persons by subjecting the deceased
-Smt.Mamatha to mental and physical cruelty abetted her to commit suicide and thereby committed the offences as alleged.
3. The concerned police have submitted charge sheet before the jurisdictional II Addl., CMM., Bangalore. The learned Magistrate after taking the cognizance for the offence U/s.498A and 306 of IPC against accused No.1 to 3 committed the case to the Sessions Court by complying Sec.207 of Cr.P.C., furnishing charge sheet copies to the accused. After the receipt of the committal records, the same was alloted to this Court and numbered as SC No.508/2012. Accused No.3 is discharged as per the order passed by Hon'ble High Court in Crl., Petition No.7600/2012 dated 29.05.2013. The accused No.4 is reported to be dead on 6.9.2011as per the final report.
4. The charge was framed and read over and explained to the accused No.1 and 2 on 7.9.2013 for the offences U/s.498A and 306 r/w Sec.34 of IPC in the language known to the accused persons, for which he pleaded not guilty for the alleged offences and claimed to be tried.
5.In order to prove its case the prosecution examined in all 14 witnesses as PW.1 to PW.14 and got marked documents at Ex.P1 to P.22, and MO1 . Further at the time of trial the learned Public Prosecutor has given up the witnesses CW.7 and CW.17, as repetition witnesses in view of availability of evidence of other material witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, 4 SC No.508/2012 warrant and proclamation for securing CW.9 to CW.11, but the concerned police failed to secure the said witnesses and in view of the same the evidence of said witnesses taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken up any steps to secure the witness CW.9 to CW.11.
6. After completion of prosecution evidence the statement of accused persons U/s.313 Cr.P.C., was recorded on 4.1.2020. The accused persons denied incriminating evidence appearing against them in prosecution case, and not chosen to lead defense evidence on their behalf. The learned counsel for ccused persons produced statements of accused No.1 and No.2 u/s.313(5) of Cr.P.C., along with documents which are neither marked nor proved on behalf of the defence.
7.Heard the arguments on both sides and also perused the materials on record.
The learned counsel for the accused relied upon the following decisions reported in a.(2020) 10 SCC 200(Gurucharan Singh V. State of Punjab), b.AIR 2019 SC 478 (Rajesh V. State of Haryana), c.(2019) 9 SCC 248) Jagadishraj Khatta V. State of Himachal Pradesh, d.(2019) 7 SCC 435(Wasim V. State NCT of Delhi) e.2018(4) RCR(Criminal)578 State of Madhya Pradesh V. Shriram @ Anr., f.(2018) 2 SCC(Cri) 656(Heera Lal and Anr.
V. State of Rajasthan)
g.AIR 2016 SC 5430 (K. V. Prakash Babu
V. State of Karnataka,
5
SC No.508/2012
h.(2015) 11 SCC 753 (Ghusabhai
Raisangbhai chorasiya and others V. State of Gujarat, i.(2008) 11 SCC 215 (Sohan Raj Sharma V. State of Haryana) j.(2007) 10 SCC 797(Kishori Lal V. State of Madhya Pradesh) k.(2002) 5 SCC 371Sanju @ Sanjay Singh Sengar V. State of Madhya Pradesh, l.(2001) 10 SCC 103(M. Abbas V. State of Kerala) and l.(2015) 4 SCC 739(Nagaraj V. State Rep.
by Police Inspector, Salem Town, Tamil Nadu).
8.The following points that arises for consideration of this court:
1. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 and 2 are being the husband and brother-
in-law of the deceased-Smt.Mamatha with common intention to commit an offence at No.4/F-6, Gajanana Apartments, 4th Cross, 8th Main, NHCS Layout, Marenahalli, Vijayanagar, within the limits of Vijayanagar P.S., Bangalore,, subjected her to physical and mental cruelty by insulting her when she was residing with them and thereby the accused No.1 and 2 have committed the offence punishable U/s.498-A r/w Sec.34 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 and 2 being the husband and brother-in-law of deceased-Smt.Mamatha subjected her 6 SC No.508/2012 to physical and mental cruelty by insulting , and abetted the deceased to commit suicide with common intention, unable to bear the ill-treatment and harassment committed suicide by hanging herself on 10.10.2011 at 11.30 p.m. at her matrimonial home, and thereby the accused No.1 and 2 have committed the offence punishable U/s.306 r/w Sec.34 of IPC?
3. What order?
9.This Court has answered the above points are as under:
Point No.1: In the Negative Point No.2: In the negative Point No.3: As per final order for the following:-
REASONS
10.Points No.1 and 2 : Both these points are taken up together as they are related to each other and to avoid repetition in the discussion.
On perusal of the complaint marked at Ex.P.1 and also charge sheet and the evidence of witnesses produced by the prosecution clearly goes to show that marriage between accused No.1 and deceased-Smt. Mamatha was solemnized on 27.11.2009, and after the marriage, deceased started to reside along with the family members of accused No.1 at No.4/F-6, Gajanana Apartments, 4th Cross, 8th Main, NHCS Layout, Marenahalli, Vijayanagar, within the limits of Vijayanagar P.S., 7 SC No.508/2012 Bangalore, the accused persons subjected the deceased both mental and physical cruelty by insulting that she would not matching to the level of accused No.1, insisting her to go out of the house and abetting her to die. Unable to bear the harassment of the accused persons on 10.10.2011 at 11.30 p.m. the deceased committed suicide by hanging herself. The accused persons by subjecting the deceased -Smt.Mamatha to mental and physical cruelty abetted her to commit suicide and thereby committed the offences as alleged.
11.In order to prove the said allegation regarding mental and physical harassment and abetment to commit suicide of deceased-Smt.Mamatha the prosecution has examined PW.1 Muralidhar being the brother of the deceased deposed in his evidence that deceased is his sister, the marriage of the deceased with the accused No.1 was performed on 27.11.2009 at Shringeri Vidyabharathi Bhavan. After the marriage the deceased came to Bangalore, and residing at Marenahalli, Gajanana Apartment, Vijayanagar, Bangalore. Accused No.2 Vinaykumar and one Srivatsa were residing with them. Within one month from the date of marriage, there was matrimonial dispute between the accused No.1 and deceased, the accused No.1 had illicit relationship with various women and he was addicted to alcohol, the accused No.1 was an irresponsible person, deceased objected his behaviour. Therefore the accused No.1 used to abuse and assault her. PW.1 was residing at Bangalore, he was calling the deceased over phone, once the accused No.1 had pushed his sisters' head to the wall, and caused injuries to her head. In the month of March 2010 8 SC No.508/2012 deceased had visited her parents home, informed regarding the behaviour of the accused No.1 with them. Panchayat was held in this regard, in the panchayat the accused No.1 and his family members promised that they will look after the deceased well. However, the accused No.1 continued his illicit relationship with other womens. Once the accused No.1 had received a email from a girl that he is "lovely hubby to her". The accused No.1 was not recharging the mobile phone of the deceased. In the month of July 2010, once again quarrel took place between the deceased and accused No.1, the deceased had visited Shringeri, and informed that she cannot reside with the accused No.1, due to his bad behaviour. In the month of September 2011, mother of the accused No.1 was dead, therefore deceased had come to Bangalore once again. On 10.10.2011, at about 11.00 p.m. the accused No.1 telephoned to father of the deceased and told that the deceased committed suicide. The accused persons subjected the deceased to mental and physical cruelty. Therefore, he filed Ex.P1 complaint. The jurisdictional police visited the place of occurrence and drawn the mahazar marked as Ex.P2. The letter addressed by the deceased was handed over to the police. Email of the accused No.1 with a girl was also handed over to the police. Emails are marked as Ex.P3 to P6. Veil used for committing suicide is marked as MO1. During the cross-examination PW.1 further deposed that the deceased had completed B.Sc., Degree in the year 2006. In the year 2007 and 2008 the deceased was working as Teacher at Adhichunchanagiri School. Wife of PW.3 had brought a marriage proposal to deceased, his name was 9 SC No.508/2012 Gururaja Manjunath. Marriage talks were held to perform the marriage of deceased with Gururaja Manjunah, but it was dropped. The parents of accused No.1 saw the deceased for the first time, just one week earlier to her marriage, he was not aware about the marriage talks held between his parents and accused No.1s' family members. Mother of accused No.1 was cancer patient, in the Month of August 2009, the proposal of marriage of deceased and accused No.1 was finalized. The accused No.1 met the deceased, at Bangalore, in the house of their relatives. There was no engagement function before the marriage of deceased and accused No.1. It was mutually agreed not to perform engagement function even though it is customary to perform engagement in their community. He got married with one Padmini in September 2010. The accused No.1 brought thali chain at the time of marriage. Thali chain is visible in Ex.P9 photograph, but it is missing in Ex.P11 and P12 photographs. Deceased had a Nokia Mobile Phone. He denied that the deceased was not interested to marry with accused No.1. It is also denied that the deceased interested to marry one Gururaj Manjunath, Ex.D1 email extract discloses the photograph of the Gururaj Manjunath. Once he met Gururaj Manjunath, but he didn't collect his telephone number. He denied that the deceased was very sensitive lady. And she insisted him to perform her marriage with Gururaj Manjunath by convincing her parents. It is also denied that the marriage of deceased was performed with accused No.1 forcefully, without the consent of the deceased. It is also denied that the deceased approached him to terminate her marriage with 10 SC No.508/2012 accused No.1. The suggestions put to PW.1 without any basis except the fact that the some of the relatives of the deceased brought the proposal of Gururaj Manjunath, but it was dropped by the family members. In the month of March 2010, the deceased had visited his house, whenever he visited the house of the deceased, he was treated well. In the first week of March 2010 the deceased had sustained head injury due to assault by the accused No.1. The deceased had telephoned him, he went to her house at about 8.00 p.m. and he is not aware as to whether the accused No.1 was in the home or not, he saw the injuries sustained by the deceased, and took her to a Hospital situated at Kathriguppe. He has not remembered as to whether the deceased informed the Doctor, who treated her as to how she sustained head injury. He did not go to Police Station with deceased to file a complaint in this regard. After treatment he dropped the deceased to her house, but did not inform to the accused No.1. His residence was at Kathriguppe at that point of time, and on the next day deceased alone went to Shringeri. He went to Shringeri by end of March or April first week. Deceased was with her parents at Shringeri. There is no documents to show that the deceased obtained treatment in the month of March 2010. Deceased was under treatment at Srikrupa Hospital, Dr. A Shashikala was treating her. He was not informed regarding the confirmation of pregnancy of deceased at that point of time. Thereafter deceased went to the house of the accused No.1. PW.1 denied that deceased refused to go to the house of accused No.1, and she insisted for divorce with an intention to marry Gururaj Manjunath. The 11 SC No.508/2012 deceased was going to hospital for check up along with accused No.1. She used to take vitamin Tablets. Later deceased told him that she was pregnant. It is denied that the deceased was advised not to travel during pregnancy period. He is not remembered mode of journey of his sister from Bangalore to Shringeri to participate in his engagement program. After return from Shringeri to Bangalore, the accused No.1 took the deceased to the hospital for treatment. On 23.06.2010, it was diagnosed as "missed abortion" and deceased was subjected to Medical Termination of Pregnancy. He is not aware as to whether the deceased was under Ayurvedic treatment in the month of June 2011. After the death of mother of accused No.1, the deceased was at Shringeri, in the house of accused persons. The deceased drove to Bangalore on 30.09.2011, along with accused No.1. In the month of October 2010 his sister had a mobile handset, it has been suggested to PW.1 that deceased had requested for family counselor for divorce with an intention to marry Gururaj Manjunath. PW.1 denied that suggestion. PW.1 further deposed that again he met the deceased twice at Bangalore in the month of September or October 2011. The learned counsel for the accused unnecessarily put the question to PW.1 regarding the pregnancy of his wife, which is not at all relevant to the case on hand. PW.1 spoke through phone to deceased 4-5 days earlier to her death. The deceased told him that the accused No.1 by abusing told her to die and continuously subjecting the deceased for cruelty.
12SC No.508/2012 The learned counsel for the accused persons has relied upon on the decision reported in (2020) 10 SCC 200(Gurucharan Singh V. State of Punjab), wherein Hon'ble Supreme Court held that as in all crimes, mens rea has to be established to prove the abetment of offence, as specified U/s.107 of IPC the state of mind to commit a particular act must be visible, to determine the culpability. In order to prove mens rea, there has to be some thing on record to establish or to show that the accused had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredients of mens rea cannot be assumed to be ostensibly present, but it has to be visible and conspicuous.
12.The accused No.2 and CW.7 were residing along with accused No.1 and the deceased. On 10.10.2011 father of the deceased telephoned him that the deceased is suffering from ill- health, he immediately telephoned to accused No.1, and accused No.1 told him to come home. He rushed to the residence of the accused No.1 and found the body of the deceased was hanging. Later the jurisdictional police came there and took further steps. He filed the complaint marked as Ex.P1 to the police. He is not aware as to whether the accused No.1 and 2 were present at the time of filing complaint. At the time of drawing mahazar the accused No.2 was present. He is not aware whereabouts of accused No.1 at the time of drawing mahazar. After removing the dead body Ex.P10, Ex.P13 and Ex.P14 photographs were taken. Admittedly, the thali chain is visible in Ex.P11, Ex.P12 and Ex.P15 photographs. Thali chain was removed and handed over to accused No.2, but no receipt 13 SC No.508/2012 was obtained by the police. It is not mentioned in the inquest mahazar with regard to visibility of Thali chain in the neck of the deceased. It has been suggested to PW.1 that he along with the concerned police misappropriated the thali chain of the deceased. Unfortunately there is no explanation by the I.O., as to whether the thali chain was handed over to accused No.2 after removing the body from hanging state. No doubt the I.O., has not obtained any receipt for handing over thali chain to accused No.2, as deposed by PW.1. It does not mean that PW.1 and the I.O., has misappropriated the gold thali chain found on the neck of the deceased at that point of time. Lapses on the part of the I.O., resulted in putting such suggestions to PW.1 that he has misappropriated the gold thali of his sister with police agency. It seems no truth in the suggestions put to PW.1 that he has misappropriated thali chain of his sister, immediately after removing her body from hanging stage. PW.1 further deposed that the deceased had forwarded the Ex.P3 through mail. He admits that Ex.P3 to Ex.P5 does not contain any illicit subject. The defence of the accused persons is that the accused No.1 had no illicit relationship and the deceased was not subjected to physical and mental cruelty at any point of time. The learned counsel for the accused persons go on cross-examining PW.1 with respect to his personal affairs, which are not relevant to decide the case on hand. Whether the thali chain was misappropriated by the PW.1 and police or it was handed over to the accused No.2 by the police is also not matter in issue to be decided by this Court. Since the accused persons have been charge sheeted for the offences punishable 14 SC No.508/2012 U/s.498A and 306 r/w Sec.34 of IPC. Therefore whether the alleged offences proved by the prosecution with available material on record to be looked into.
The learned counsel for the accused persons relied up on AIR 2019 SC 478 (Rajesh V. State of Haryana), wherein Hon'ble of Supreme Court has held that conviction of Sec.306 of IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which lead or compelled the person to commit suicide. In order to bring a case within the preview of Sec.306 of IPC, there must be a case of suicide and in the commission of the said offence, the persons who is said to have abetted the commission of suicide must have played an active role, by act of an instigation or by doing certain act to facilitate the commission of suicide. On careful scrutiny of the evidence of PW.1, active role by an act of instigation or doing certain act to facilitate the commission of suicide is missing in this case.
In 2017 (1) KCCR 673(SC) (K. V. Prakash Babu Vs., State of Karnataka), held that wife of accused developing a sense of suspicion that her husband has relationship with another girl deceased guided by rumor which aggravated her suspicion. That seed of suspicion planted in her mind leading to her suicide. Such event would not constitute or establish guilt U/s.306 of IPC.
13.PW.2 Smt. Shantha mother of the deceased deposed that marriage between accused No.1 and the deceased was performed at Shringeri. After the marriage accused No.1 and 15 SC No.508/2012 deceased were residing at Vijayanagar, Bangalore. After one month the accused No.1 started to illtreat the deceased. Brother of the accused No.1 by name Vinay as well as another relative of accused No.1 were also residing with them. The accused No.1 used to tease the deceased for silly reasons. Whenever her daughter visited the parents house, she used to express her difficulties to lead the marital life with the accused No.1. The accused No.1 used to tell her daughter that he was not interested to marry her, because of pressure of his parents not to marry different caste girl, he agreed to marry her. In the month of March 2010, the accused No.1 assaulted the deceased, as such PW.1 called the deceased to Shringeri, after that father and uncle of accused No.1 came to Shringeri and promised that they will look after the deceased well, as such the deceased went to Bangalore once again. The deceased used to tell her over phone regarding the difficulties to lead the marital life with accused No.1. In the month of July 2011 the accused No.1 left the deceased at Handigadde, Shringeri. Thereafter the mother of the accused No.1 was dead due to cancer, the father of the accused No.1 used to tell the deceased that she is unnecessarily suspecting the accused No.1. There was no co-operation between to deceased and accused No.1 to lead the life in her matrimonial home. her daughter died on 10.10.2011. The accused persons are responsible for the unnatural death of the deceased. She identifies invitation card and photographs of the marriage marked as Ex.P.7 to P9. During the cross-examination she further deposed that the deceased was working as teacher in Adichunchanagiri School.
16SC No.508/2012 The marriage talks were held to perform the marriage of deceased with one Gururaj Manjunath. She does not know whether the deceased and Gururaj Manjunath spoke to each other in relation to marriage proposal.
She further deposed that
ನಮಮ ಮನನಯಲಲ ಭನಭಟಯಯದ ನನತರ ಮಮನದನ ಬನಭಟಯಯಗಲಲ
ಅದಚಮನಚಮನಗರಯಲಲ ಒನದಮ ಬಯರ ಭನಭಟಯಯಗದದನಮ ಈ ಭನಭಟಯಯದ ನನತರ ಅವರಬಬರಮ ಮಯತಯನಯಡಮತತದದರಮ ಅವರಬಬರ ಮದಮವನಯ ಸನಬನಧ ಯಯವ ದನಯನಕ ತನಗಳಮ ಮತಮತ ವರರದಲಲ ಮಮರಮಗಡನಗನಗನಡತಮ ಅನತ ನನನಪಲಲ ಅವರಬಬರಲಲ ಹನಗನದಯಣನಕನಯಯಗಲಲಲ ಅದ ಕಯರಣ ಮದಮವನ ಮಮರಮಗಡನಗನಗನಡತಮ.
After one year of this incident proposal of marriage of deceased and accused No.1 was finalized at Shringeri. There is a custom of performing engagement before marriae, but the engagement function of deceased and accused No.1 was not performed as the accused persons did not insist for engagement function. She went along with the deceased to Bangalore and stayed three days at Vijayanagara. She denied that the deceased was not interested to marry accused No.1. She also denied that the deceased was much interested to marry Gururaj Manjunath, and she was not able to forget Gururaj Manjunath even after the marriage. It has been suggested to PW.2 that the deceased was not interested to go to Bangalore with accused No.1 after the marriage. PW.2 admits that 1 ನನಭ ಅರನಗಭಪ ಮಮತಯಳನಮನ ವನವದದದರ ಹತತರ ನಯಮತವಯಗ ಕರನದಮಕನಗನಡಮ ಹನಗಭಗಮತತದದ ಎನದರನ ನಜ. ಮಮತಯಳಮ ಯಯವ ವನವದದರ ಹತತರ ತನಗಭರಸಲಯಗಮತತದನ ಅನತ ತಳಸರಲಲಲ. ಯಯವ ವನವದದರ ಹತತರ ತನಗಭರಸಲಯಗಮತತದನ 17 SC No.508/2012 ಅನತ ಕನಭಳಲಮ ಪಪಯತನಸದನದನಮ. ಅವಳಮ ವನವದದರ ಹನಸರನಮನ ಹನಭಳದದಳಮ ಅದರನ ನನಗನ ಗನಗತಯತಗಲಲಲ. ಜಗನನದ 2010 ರಲಲ ಮಮತಯಳಮ ಮಗರಮ ತನಗಸ ಗಭವರತಯಯಗದದಳಮ ಒನದರನ ನಜ. ಮಮತಯಳ ಅರನಗಭಗದವನಮನ ವನವದದರಮ ನನಗಭಡಕನಗಳಮಳತತದದರಮ ಎನದರನ ನಜ. ಅದರ ಖಚಮರವನಚಚವನಮನ 1 ನನಭ ಅರನಗಭಪನಮನಮಭ ನನಗಭಡಕನಗಳಮಳತತದದ ಎನದರನ ನಜ.
It is clear from the evidence of PW.2 that the accused No.1 taken care of the deceased. During the course of 313 statement the accused No.1 and2 filed statement and produced several documents to show that deceased took treatment in different Hospitals at Bangalore, at the cost of accused No.1. The accused No.1 has also purchased many house hold articles to lead the life with the deceased. PW.2 further admits that on 20.06.2010 accused No.1 took her to hospital and on 22.06.2010 scanning report of the deceased reveals that there was miscarriage. According to accused No.1 the deceased undertook journey from Bangalore to Shringeri in Bus against the medical advise, which resulted in miscarriage. PW.2 admits the same in her evidence and she spoke to deceased lastly on 8.10.2011. The deceased did not tell her that she was not interested to live her life. The only allegations made out by PW.2 against the accused persons that the accused No.1 not taken care of the deceased and she was subjected to mental and physical cruelty. The evidence of PW.2 is quiet contrary to the documentary evidence available on record. Mamtha took unilateral decision to travel to Shringeri without the consent of accused No.1. That itself cannot be ground to believe that the accused persons subjected the deceased for mental and 18 SC No.508/2012 physical cruelty. There cannot be any oral evidence against the documents.
14.PW.3 Narasimhamurthy, the uncle of the deceased deposed that marriage of the deceased with accused No.1 was solemnized at Shringeri. After the marriage she went to Bangalore to lead her marital life with accused No.1. There was matrimonial dispute between them. The deceased as well as her parents told him these matters, that there is matrimonial dispute. He heard that the accused persons subjected the deceased for mental and physical cruelty. On 10.10.2011, he received the message that the deceased committed suicide at Bangalore. During the cross-examination PW.3 further deposed that the deceased was earlier working at Adichunchanagiri School. Marriage of deceased was proposed to perform with Gururaj Manjunath, who was working at IBM Company, later that proposal was dropped. Twice he had visited the accused No.1 after the marriage. The relationship between the accused No.1 and deceased was cordial at that point of time. Wife of PW.1 was died in May 2011, when she was under pregnancy treatment. The mother of the accused No.1 was also died in the year 2011. The deceased Mamatha saw two deaths within the short period. It has been suggested to PW.3 that the deceased had lost hopes of life due to these deaths. And the said suggestion has been denied by PW.3. PW.3 had not advised the accused persons at any point of time. However, he reiterated the relationship between the deceased and accused No.1 was normal, whenever he visited them.
19SC No.508/2012
15.PW.4 Srikantaiah, father of deceased-Smt. Mamatha deposed that the marriage of Mamatha and accused No.1 was performed on 27.11.2009 at Shringeri, after the marriage accused No.1 and Mamatha were residing at Vijayanagar, Bangalore. The accused No.1 was subjecting the deceased for physical and mental cruelty. He was assaulting and trying to strangulate the deceased. In March 2010, the deceased had visited the house of her brother/PW.1 due to assault by accused No.1. Thereafter, panchayath was held. Deceased was sent with accused No.1 to Bangalore with a hope that the matrimonial disputes will be solved in future. The accused No.1 was not recharging the mobile of the deceased. On 9.10.2011 his relatives telephoned him and informed that his daughter
-Mamatha has committed suicide. On the next day morning he along with his family members reached Bangalore and saw the body at Victoria Hospital. His daughter-Mamatha committed suicide due to torture of the accused No.1. It is pertinent to note that PW.1 has produced the inland letter, which is marked as Ex.P16, wherein it is mentioned that the accused No.1 is not looking after the deceased during her stay with him. It has been addressed to PW.4 by the deceased making allegation that the accused No.1 was not recharging the mobile, if the deceased asked for recharging mobile the accused No.1 was asking her to bring money from her parents. The accused No.1 used to go to work for night shift. Television connection was also removed. The accused No.1 is not taking any responsibility and subjecting her to physical and mental cruelty. Date of Ex.P16 is not visible and it appears that it was written 20 SC No.508/2012 on 11.01.2011. the daughter of PW.4 Mamatha committed suicide on 10.10.2011. Proximity of time is about of 10 months from the date of letter to the date of suicide. The I.O., has not collected the letter from PW.4 during the course of investigation. Handwriting in Ex.P16 is not examined by expert. The learned public prosecutor treated PW.4 as partly hostile witness and cross-examined. During the cross-examination PW.4 admits that he gave statement before Tahasildhar to the effect that all the accused persons subjected his daughter for mental and physical cruelty. The truthfulness of the contents of letter marked as per Ex.P16 is denied by the accused persons. PW.4 further admits that the deceased had marriage proposal with one Gururaj Manjunath, visit of Gururaj Manjunath, to the house of PW.3 is also admitted. But he does not know at what stage the marriage proposal of his daughter with Gururaj Manjunath was dropped. Meeting of deceased and Gururaj Manjunath to understand themselves in the house of PW.3 is denied. The deceased was interested to marry Gururaj Manjunath is also denied. He further deposed that after deciding the marriage of deceased with accused No.1, engagement ceremony was not held as per the customs. Engagement alleged to have taken place to perform the marriage of deceased with Gururaj Manjunath is denied. Visit of the mother of the deceased to the house of accused for the first time is also denied by PW.4. It has been suggested to PW.4 that deceased Mamatha refused to go with accused No.1 to lead marital life, immediately after the marriage, as Mamatha was interested to marry Gururaj Manjunath. Visit of the deceased to Shringeri in March 2010, is 21 SC No.508/2012 admitted. According to him deceased visited Shringeri in March 2010 due to ill-treatment by the accused No.1. It has been suggested to PW.4 that deceased refused to follow instruction s of her parents, as such her parents did not perform cremation. PW.4 denied the suggestions. Cremation of dead body by the husband or his family is custom followed by Hindus. An attempt is made to give colour to such customary practice by suggesting that the parents of the deceased did not perform cremation out of anger.
The learned counsel for the accused persons has relied up on the decision reported in (2015) 11 SCC 753 (Ghusabhai Raisangbhai chorasiya and others V. State of Gujarat) where in it is held that even if there is some evidence about the illicit relationship and even if the same is proven, cruelty, as envisaged U/s.498A of IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra marital relationship even if proved, would be illegal and immoral, but it would take a different character if the prosecution brings some evidence on record to show that accused had conducted in such a manner to drive the wife to commit suicide. In the instant case PW.1 alleged that accused No.1 has illicit relationship with many womens. Prosecution produced a bill to show that accused No.1 has paid such bill belongs to some girl. Based on the bill itself it cannot be presumed that the accused No.1 had illicit relationship with a women.
22SC No.508/2012 Further in (2018) 2 SCC(Cri) 656(Heera Lal and Anr. V. State of Rajasthan) it is held that Sec.113A of Evidence Act requires three ingredients to be satisfied before it can be applied
1.That a women has committed suicide,
2.Such suicide has been committed within a priod of seven years from the date of her marriage, and
3.The husband or his relatives, who are charged has subjected her to cruelty.
It is not the case of the prosecution that the accused persons have demanded dowry from the parents of deceased Mamatha. PW.1 admitted that it is the accused No.1 made payment of some medical bills of his wife. Several documents produced during statement U/s.313 of Cr.P.C., before the Court, to show that the accused No.1 provided medical assistance to the deceased-Smt. Mamatha. It is not the case of dowry death even according to the prosecution. On careful scrutiny of evidence of PW.1 to PW.4 the allegations against accused No.1 is vague and there is no specific instance to establish the guilt of the accused persons for committing the offence of abetment of suicide under the facts and circumstances of the case. .
16.PW.5 Ambarisha, being blood relative of the deceased Mamatha deposed that after the marriage the deceased and accused No.1 were residing at Vijayanagar, Bangalore. The accused No.1 was subjecting the deceased to cruelty. Therefore, she committed suicide on 9.10.2011. During cross- examination he further deposed that he does not know who took decision to perform the marriage of deceased with 23 SC No.508/2012 accused No.1. He only once visited the house of accused No.1, after his marriage with deceased. The accused No.1 was present at that time. The relationship between them was not cordial. He didn't file any complaint at that point of time.
17.PW.6 Chandrashekar, relative of the deceased Mamatha deposed regarding the marriage performed between accused No.1 and Mamatha. And the accused No.1 subjected her to cruelty when they were staying at Bangalore. Mamatha committed suicide after two years of her marriage. He does not know much about the matrimonial relationship between the accused No.1 and deceased.
18.PW.7 B. D. Gopala Krishna another relative of the deceased Mamatha, deposed that marriage of Mamatha and accused No.1 was performed at Shringeri. After the marriage the couple stayed one day in his house. After some time PW.2 telephoned him and requested to advise the accused No.1 not to harass his wife. When he telephoned to PW.2 in March 2010, he came to know that the matrimonial relationship between the accused No.1 and Mamatha was not cordial. PW.7 is a hearsay witness, examined on behalf of the prosecution. His evidence in no way helps the prosecution to prove the charge leveled against the accused persons.
19.PW.8 Vivek.M.K., being friend of PW.1 deposed regarding the unnatural death of the deceased. He visited the Victoria Hospital to see the deceased and he signed Ex.P17 Inquest Mahazar at Victoria Hospital. He saw ligature mark on her neck. There was no other injuries on her body.
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20.PW.9 Ravikumar, being friend of PW.1 deposed received information through phone and rushed to the place of occurrence and signed Ex.P2 spot mahazar in the presence of one Mahabalesh and others. He did not see any jewels in her neck when Ex.P2 mahazar was drawn except ligature mark on her neck.
21.PW.10 Dr. Dileep Kumar deposed that on 10.11.2011 on request of Special Tahasildar, Bangalore North, conducted postmortem on the dead body of Mamatha, and gave report marked as Ex.P18. He found ligature mark on her neck. Ex.P18 PM Report reveals that the death is due to asphyxia as result of hanging. He had not noticed any injuries on the dead body of deceased-Mamatha.
22.PW.11 Manju.S.S., Police Sub-Inspector of Vijayanagar P.S., deposed that on 11.10.2011 at 3.30 a.m. received Ex.P1 complaint filed by PW.1, registered the case and forwarded the FIR to the jurisdictional Court, which is marked as Ex.P.19. On the same day he rushed to the place of occurrence and drawn the Ex.P2 spot mahazar in the presence of mahazar witnesses, collected photographs of the deceased, send the dead body with a request letter to the concerned Tahasildar to prepare inquest report and his subordinate officials produced the accused persons before him. He has followed the arrest procedure and produced the accused before the concerned jurisdictional Magistrate, recorded further statement of PW.1, collected photographs marked as Ex.P7 to P9, submitted PF No.182/2011 to the jurisdictional Magistrate as per Ex.P20, identified MO1 veil used for committing suicide.
25SC No.508/2012 He further deposed that on 12.11.2011, he has collected some of the xerox copies of the documents with a request letter from PW.1, which is marked at Ex.P21. He has also collected emails, inland letter xerox copy, recorded statement PW.7. On 7.12.2011 he has followed the arrest procedures in respect of accused No.3 Anantha Krishna, collected the death certificate of another accused Smt. Sunanda and filed charge sheet against the persons for the alleged offences. Accused No.3 V. N. Anantha Krishna discharged as per the order passed by Hon'ble High Court in Crl., Petition No. 7600/2012 dated 29.05.2013 and later he is reported to be dead and accused No.4 Smt. Sunanda also reported to be dead. During cross- examination PW.11 further deposed that he rushed to the place of occurrence immediately after registration of FIR, the dead body was found in the room, which was opened, except the complainant no body was there. He was on the spot till the dead body was shifted to the Hospital. He does not know whether the accused persons were there or not. He denies that he had kept two accused persons in the lock up. He admits that in Ex.P11, Ex.P.12 and Ex.P.15 photographs thali chain of the deceased is visible, but it is missing in Ex.P10, P.13 and P.14 photographs. According to PW.11, he has handed over the mangalya chain to the brother of the deceased i.e., PW.1. He did not get any receipt in this regard, it has not been mentioned in CD also. It has been suggested to PW.11 that, PW.1 has handed over the Mangalya chain to PW.11 with instructions to file charge sheet against the accused persons for the alleged offences. PW.11 denied the said suggestions, but the facts 26 SC No.508/2012 remained on record, there is no explanation by the I.O., as to whether he has really handed over thali chain to PW.1. If at all the thali chain was handed over to PW.1, he could have obtained receipt and produce the same before this Court with charge sheet. He has not done so. Lapses on the part of I.O., while conducting inquest is apparent on record. During cross- examination PW.11 admits that as per Karnataka Police Manual he is bound to mention all details/particulars found on the dead body. He has not given any explanation as to what happened to the thali chain. PW.1 deposed that he did not receive the thali chain from the investigating agency. PW.11 gave unnecessarily scope to make an allegations that the investigating agency and PW.1 misappropriated the thali chain belongs to the deceased-Smt. Mamatha. According to PW.11 on 11.10.2011 at 7.30 p.m. he has arrested the accused persons. The learned counsel for the accused questioned arrest and production of accused persons without following the procedures. But the accused persons did not rise this question before the committal Court, when they were produced before the jurisdictional Magistrate and first remand order was passed. There is no scope for accused persons to rise this question in this trial. Cross-examination to that extent without questioning the procedure followed by the investigating agency at the first instance is of no use. PW.11 in his further cross-examination deposed that on 11.10.2011 he did not give notice to any of the witnesses to be present. He did not ask for production of original documents. He did not collect the handwriting of the deceased. He did not issue notice to produce available 27 SC No.508/2012 admitted handwritings of the deceased. He did not collect documents from the school where the deceased studied. There was no hurdle to send Ex.P16 document to handwriting expert and to obtain the expert opinion to establish the genuiness of the Ex.P16 letter. He collected Ex.P4 and Ex.P5 bills to show that accused No.1 has made payment of telephone bills of one Shilpa with whom accused No.1 alleged to have illicit relationship. However, he admits that except payment of bills, Ex.P4 and P5 does not contain information regarding illicit relationship between them. He has not recorded further statement when PW.1 submitted requisition. Ex.P16 had not been collected by the I.O., during the course of investigation. He admits that in the month of July 2011 the deceased joined with accused No.1 at Bangalore, except ligature mark on the neck, there was no other injuries on the dead body of the deceased-Smt. Mamatha. He did not obtain bond under form 29 after recording statements. He did not investigate with regard to earlier engagement of deceased with Gururaj Manjunath. The accused persons not received any dowry either before or after the marriage. He denies the suggestions that the parents of the deceased-Mamatha subjected her to cruelty.
23.PW.12 Venugopal, PC of Vijaynagar P.S., collected the PM report from the Hospital and handed over the same to the I.O., PW.13 Shivappa Lamani, Special Tahasildar, Bangalore North, prepared inquest mahazar marked as Ex.P17 on request of Vijayanagar Police. Request letter marked as Ex.P22. He does not know from which date the accused 28 SC No.508/2012 persons subjected the deceased to cruelty. Ex.P17 handwriting belongs to Vijayanagara Police. He dictated the inquest mahazar. He denies that Ex.P17 and Ex.P22 prepared by the Vijayanagar police and signed these documents on request of the concerned police. PW.14 Raju, Head Constable of Vijayanagar P.S., deposed that on 11.10.2011 PW.11 directed him to apprehend the accused, he along with CW.17 arrested the accused No.1 and 2 near Gajanana Apartment and produced them before the I.O., It has been suggested to PW.14 that the accused No.1 and 2 were in station lockup. The learned counsel for the accused visited the police station, after obtaining permission from the Police Inspector, lockup was opened and tiffin was supplied to the accused persons by the learned counsel for the accused. The suggestions put to PW.14 has been denied. And the accused persons have not initiated any action against the police officers keeping them in unlawful custody/detention. The suggestions put to PW.14 has no relevance in view of the fact that arrest of the accused persons and production before the Magistrate at relevant point of time is not questioned before the committal Court. The accused persons did not initiate any action against the police officers for violating the rights of the accused recognized under law.
24.PW.1 admitted in his evidence that the photographs of the Gururaj Manjunath appearing in Ex.D1 email. The learned counsel for the accused No.1 and 2 filed statement of accused persons U/s.313(5) of Cr.P.C., and contended that during 2007- 2008 deceased Mamatha working in Adhichunchanagiri School by staying with PW.3 Narasimhamurthy. Wife of PW.3 Smt. 29 SC No.508/2012 Gayathri arranged alliance of Mamatha with Gururaj Manjunath. An engagement ceremony was conducted between Mamatha and Gururaj Manjunath for marriage. Mamatha started communication over phones, marriage of Mamatha with Gururaj Manjunath was canceled, as such she was under deep depression, and she wanted her family members to reconsider their decision and to arrange her marriage with Gururaj Manjunath. She was not able to forget her engagement with Gururaj Manjunath. No engagement ceremony with accused No.1 as already Mamatha was once engaged with Gururaj Manjunath. Mamatha was not willing to stay at Bangalore. The engagement was performed during early 2009. Mamatha parents approached the parents of accused No.1 for marriage in the month of May/June 2009 and later canceled marriae of Mamatha with Gururaj Manjunatha at the instance of parents of deceased Mamatha, which was not liked and tolerated by her. She was also remembering the post engagement period and she never could have forgotten the memories. She used to dream about the time she spent and she goes into depression. She never intended to marry and live with accused No.1. She used to run to her native place and the parents and relatives of Mamatha used to force her to Bangalore. She was suffering from mental depression due to the constant pressure from her parents. Mamatha wanted freedom from this marriage. She was forced by her parents to go to Bangalore to live with her husband by forgetting the past. It is pertinent to note that PW.1 PW.2 and PW.4 being brother, and parents of deceased Mamatha and PW.3 Narasimha Murthy, uncle of deceased 30 SC No.508/2012 admitted in their respective evidence that before the marriage of deceased Mamatha with accused No.1 it was proposed to perform marriage of deceased Mamatha with Gururaj Manjunath. For what reason the proposal was dropped is not known. The defence set up by the accused in this case is probabalised under the facts and circumstances of the case. Dropping earlier proposal and performance of marriage of accused No.1 and deceased Mamatha within 4-5 months period. Ex.P16 letter addressed to the PW.4, father of the deceased Mamatha, was not at all collected during the course of investigation. However, copy of the letter was handed over to I.O., by PW.1 along with Ex.P21 letter. No truth is found in the objections of the learned counsel for the accused persons that the letter produced and marked as Ex.P16 is not genuine. No doubt post office seal is not visible in Ex.P16. But the date of letter is 11.01.2011. And the date of committing suicide is 10.10.2011, There is 10 months gap in addressing letter to her father and date of committing suicide. Working in night shift by leaving the wife in home does not amounts to cruelty. The allegations that the accused No.1 Was not recharging the mobile in time itself is not a ground to believe that the accused No.1 subjected her to cruelty, as the accused has purchased several house hold articles and provided treatment to deceased Mamatha in many Hospitals as per the documents produced by the accused persons along with their statements. There is no truth in the allegations made out against the accused No.1 that he was neglecting deceased Mamatha during her stay at Bangalore. Mere negligence in look after wife does not amount 31 SC No.508/2012 an offence. Payment of telephone bill of some other women, itself is not sufficient to hold that the accused No.1 had illicit relationship with other women. Except the oral evidence and telephone bill payment, there is no other material on record, to establish these allegations against accused No.1. Evidence of the relatives of the deceased Mamatha i.e., PW.1 to PW.4 to be scrutinized with available materials on record including the defence set up by the accused persons. There is no truth in the allegations made out by the learned counsel for the accused persons that PW.1 the brother of the deceased- Mamatha, PW.11 the I.O., for the greed of money thali chain of deceased utilized and has filed charge sheet against the accused persons. Official act carried out by the I.O., cannot be given colour for the sake of defence. There is no truth that the family members of deceased Mamatha were least bothered about her health after the marriage. Their decision to cancel earlier engagement with Gururaj Manjunath may be right or wrong. It does not mean that parents least bothered about her after the marriage resulted in unfortunate death of Mamatha. It cannot be said that they were not known about her pregnancy and death of child in the womb due to traveling from Shringeri to Bangalore and vice-versa. Matter of pregnancy is generally not discussed with male members of the family to certain extent in our society. That itself is not a ground to making allegations against the brother of the deceased that he was neglecting his sister. It is further submitted that the family members of the deceased Mamatha have concealed the earlier engagement of their daughter with Gururaj Manjunath from accused No.1 and 32 SC No.508/2012 his family till the death of the Mamatha. Break up after engagement cannot be used as weapon to demoralize the girl or to attach a stigma in a civilized society. Dropping of the engagement and performing the marriage of deceased Mamatha with accused No.1 may be collective decision of her family. It does not mean that her family members ignored the opinion of the deceased.
The learned counsel for the accused relied upon the decision reported in (2001) 10 SCC 103(M. Abbas V. State of Kerala) Hon'ble Supreme Court has held that the defence need not be proved beyond all reasonable doubt, only preponderance of probability is to be shown. The documents produced by the accused persons U/s.313(5) of Cr.P.C., with statement forms part of the record and expenses incurred for treatment of the deceased Mamatha during her stay at Bangalore, falsifies the contents of Ex.P16 inland letter, where she made an allegations that the accused No.1 was not recharging her mobile.
Further in (2007) 10 SCC 797(Kishori Lal V. State of Madhya Pradesh) Hon'ble Supreme Court has held that there must be proof of direct or indirect act of incitement to the commission of suicide. Merely on the harassment of allegations conviction in terms of Sec.306 of IPC is not sustainable.
In (2002) 5 SCC 371Sanju @ Sanjay Singh Sengar V. State of Madhya Pradesh, it is held that accused alelged to have said to "go and die" itself do not constitute the ingredients of instigation for mens rea of offence U/s.306 of IPC. Much 33 SC No.508/2012 discussions on all the decisions cited by the learned counsel for the accused persons is not required, as the ratio laid down in all the decisions are almost similar in nature in a case of Sec.498A, 306 r/w Sec.34 of IPC. On careful scrutiny of the evidence available on record I am of the opinion that the prosecution has failed to prove the charge leveled against the accused No.1 and 2 U/s.498A and 306 r/w Sec.34 of IPC beyond all reasonable doubt. Accordingly, I answer points No.1 and 2 in the Negative.
25. Point No.3: In view of answer of this court on points No.1 and 2, this court proceed to pass the following:
ORDER Acting U/s.235(1) of Cr.P.C. the accused No.1 and 2 are hereby acquitted of the offences punishable U/s.498A and 306 r/w Sec.34 of IPC.
The bail and surety bonds of accused No.1 and 2 stand canceled.
MO1 being worthless shall be destroyed after appeal period is over.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 29th day of August, 2022) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.34
SC No.508/2012 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Muralidhar
P.W.2: Shantha
P.W.3: Narasimhamurthy
P.W.4: Srikantaiah
P.W.5: Ambarish
P.W.6: Chandrashekar
P.W.7: B. D. Gopalakrishna
P.W.8: M. R. Vivek
P.W.9 Ravikumar
P.W.10: Dr. Dilipkumar.K.B.
P.W.11: SS Manju
P.W.12: Venugopal
P.W.13: Shivappa Lambani
PW.14: K. Raju.
.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Complaint Ex.P.2: Spot Mahazar Ex.P.3 to P.6:email Copies Ex.P.7: Marriage Invitation Card Ex.P.8 & P.9: Photographs Ex.P.10 to P.15: Photographs Ex.P.16: Inland Letter Ex.P.17: Inquest Mahazar Ex.P.18: PM Report Ex.P.19: FIR Ex.P.20; Report Ex.P.21: Requisition Letter Ex.P.22: Notice.
List of Witnesses examined on behalf of Accused:
NIL List of Documents exhibited on behalf of Accused:
Ex.D1: email copy List of Material Objects marked on behalf of Prosecution:
MO1: Veil
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
35
SC No.508/2012
Order pronounced in the open Court
vide its separate order
ORDER
Acting U/s.235(1) of Cr.P.C. the accused No.1 and 2 are hereby acquitted of the offences punishable U/s.498A and 306 r/w Sec.34 of IPC.The bail and surety bonds of accused No.1 and 2
stand canceled.
MO1 being worthless shall be destroyed after appeal period is over.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.