Karnataka High Court
Govinda Raja S/O Srinivasa vs The State By Police Sub-Inspector on 10 January, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.100193/2015
BETWEEN:
GOVINDA RAJA S/O SRINIVASA,
AGE: 45 YEARS, DRIVER OF AUTO RICKSHAW
R/O KURUBARA ONI IN KAMALAPURA,
TALUK: HOSPET, DISTRICT: BELLARY.
... APPELLANT
(BY SRI.A.P.MURARI, ADV.)
AND:
THE STATE BY POLICE SUB-INSPECTOR,
KAMALAPURA POLICE STATION IN BELLARY
DISTRICT, REP. BY THE ADDL.STATE
PUBLIC PROSECUTOR, HIGH COURT,
DHARWAD. ...RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP.)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT DATED
25.10.2014 CONVICTING THE ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 498A AND 306 OF IPC AND ORDER
OF SENTENCE DATED 07.11.2014 DIRECTING THE ACCUSED TO
UNDERGO RIGOROUS IMPRISONMENT FOR 3 YEARS FOR THE
OFFENCE UNDER SECTION 498A OF IPC AND RIGOROUS
IMPRISONMENT FOR 10 YEARS FOR THE OFFENCE UNDER
SECTION 306 OF IPC PASSED BY III ADDITIONAL SESSIONS
JUDGE, BELLARY, SITTING AT HOSPET, IN SESSIONS CASE
NO.132/2012 AND ACQUIT THE ACCUSED OF THE OFFENCES
FOR WHICH HE IS CONVICTED AND SENTENCED AS ABOVE.
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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant is the husband of the deceased. Their marriage was performed on 29.04.2004. In the wedlock they had two children aged about 8 years and 3 years as on the date of the incident. According to the prosecution, the accused was addicted to alcohol. He used to regularly quarrel with the deceased and abuse and assault her suspecting her fidelity. At the relevant time the deceased was working in a distillery as a coolie. She used to leave home at around 2.00 p.m. and return home at around 11.30 p.m. On 17.07.2012 when the deceased returned home at about 11.30 p.m., the accused picked up quarrel with the deceased suspecting her fidelity and assaulted her. Once again he raked up the quarrel in the early morning i.e. on 18.07.2012 at about 5.00 a.m. On the same day, at 8.30 a.m. the deceased poured kerosene oil on her and set herself on fire. The neighboring occupants 3 doused the fire. Her relatives were informed and she was taken to the hospital.
2. PW.10, ASI of Kamalapur Police Station recorded the statement of the deceased in the hospital at about 4.30 p.m. Based on the said statement, a case was registered against the accused under Sections 498-A, 323, 504 of the Indian Penal Code, 1860. (hereinafter referred to as the 'IPC' for brevity). On the following day, the Taluka Executive Magistrate recorded her statement in the hospital. The deceased succumbed to the burns on 21.07.2012. On completing the investigation, charge sheet was laid against the accused under Sections 306, 498A, 323 and 504 of IPC.
3. The accused having denied the charges, the prosecution examined 14 witnesses in proof of the charges and produced in evidence 9 documents marked as Exs.P.1 to P.9 and the material objects at MOs.1 to 4. The accused took up the defence of total denial during his 4 examination under Section 313 of Cr.P.C and did not choose to enter into any specific defence. On considering the material produced by the prosecution, by the impugned judgment, the trial Court found the accused guilty of the offence under Sections 498-A, 306 of IPC and accordingly sentenced him to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs.50,000/- for the offence punishable under Section 306 of IPC and to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 498-A of IPC. Aggrieved by the impugned judgment of conviction and order of sentence, the appellant/accused has preferred this appeal.
4. I have heard Sri.A.P.Murari, learned counsel appearing for the appellant/accused and Sri.Raja Raghavendra Naik, learned High Court Government Pleader.
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5. Learned counsel for the appellant/accused at the outset submitted that, the case of prosecution is rested solely on two dying declarations attributed to the deceased. Both these dying declarations are conflicting with each other. Therefore the trial Court has committed grave error in placing reliance on the said dying declarations. He further contended that, the trial Court has failed to appreciate the evidence in proper perspective. The contradictions and the omissions appearing in the evidence of the prosecution witnesses has not been considered. The evidence let in by the prosecution even if accepted, does not make out case under Section 306 of IPC. The prosecution has failed to bring on record any material in proof of "instigation" or "abetment", which are the necessary elements to constitute the offence under Section 306 IPC. In support of his argument, the learned counsel has placed reliance on the case of Prabhakara Shetty and Others Vs. State and Others reported in 2015(4) KCCR 4000. Further, the leaned counsel 6 submitted that even with regard to the imposition of sentence, the trial Court has failed to consider the circumstances leading to the said offence. Hence, he seeks for acquittal of the accused.
6. The learned HCGP has argued in support of the impugned judgment and submitted that apart from the dying declaration made by the deceased implicating the accused in the alleged offence, the witnesses examined by the prosecution have fully supported the case of the prosecution and therefore there is absolutely no reason to interfere with the well considered judgment of the trial Court. With regard to the sentence, he submits that having regard to the gravity of the offence and especially in view of the previous conduct of the accused, who had continuously subjected her to physical and mental cruelty, the trial Court was justified in awarding the maximum sentence and hence there is no reason 7 whatsoever to interfere with the impugned judgment and seeks for dismissal of the appeal.
7. I have considered the submissions canvassed by the learned counsels and have carefully perused the material on record.
8. There is no dispute with regard to the inter se relationship between the parties. It is also not in dispute that the incident took place in the matrimonial home. The statement of the deceased (Ex.P.6) was recorded at the earliest instance by PW.10-ASI in the hospital. There is no dispute with regard to the fact that at the time of recording the said statement the deceased was conscious and well oriented. The state of her mental condition has been endorsed in Ex.P.6. In the said statement, the deceased has narrated the circumstances leading her to commit suicide. She has specifically stated that the accused was addicted to alcohol and he used to suspect her fidelity and used to regularly abuse and assault her. 8 She has narrated the events that took place on the previous day of the incident and has graphically explained the manner in which the quarrel took place. She has even gone to the extent of stating that, on the same issue the accused picked up quarrel early in the morning and being unable to bear such cruelty and constant ill-treatment by the accused, she was driven to pour kerosene on her and set herself on fire. She has also stated about the persons, who doused the fire and the manner in which she was brought to the hospital.
9. The contents of Ex.P.6 are duly corroborated by the testimony of PW.3-the owner of the house, wherein the incident took place. This witness has unequivocally stated before the Court that, on hearing the screams, she rushed to the house and on seeing the deceased on fire she and her sister doused the fire. She has further stated that on questioning the deceased she informed her that being unable to bear the cruelty meted out to her by the 9 accused, she poured kerosene on her and set herself on fire. This evidence finds further corroboration in the testimony of PWs.4, 5 and 7. I do not find any reason to doubt or disbelieve the evidences of PW.4, PW.5 and PW.7. The evidence of these witnesses is consistent with the contents of her statement Ex.P.6. Thus, it stands established that being unable to bear the cruelty meted out by the accused, on the date of the incident, the deceased poured kerosene oil on herself and set her on fire.
10. In addition to the above evidence, prosecution has brought on record another statement attributed to the deceased. This statement is said to have been recorded by the Taluka Executive Magistrate-PW.13 on 19.07.2012 at 5.00 p.m. in the hospital. With regard to the mental condition of the deceased to give her statement at that point of time is not in dispute. The medical record produced by the prosecution as well as the circumstances 10 brought on record clearly indicate that, she was in a fit condition to give her statement. But what is relevant to be noted is that, in this statement Ex.P.9 she has stated that "her husband was addicted to alcohol. He was not going for any work. On the other hand, she used to go for work. He was suspecting her fidelity. On 18.07.2012 in the morning at 7.00 a.m. he picked quarrel with her. He poured kerosene on her and told her to decide whether to live or die and at that time out of disgust she set fire to herself". This statement is diametrically opposite to the statement made by the deceased as reflected in Ex.P.6. The evidence of PW.3 as well as PWs.4, 5 and 7 indicate that at the earliest instance when the deceased was questioned about the incident, she narrated to them that being unable to bear the cruelty meted out to her, she herself poured kerosene oil and set her on fire. Therefore, the statement recorded by PW.13 being contrary to the version depicted in Ex.P.6 and the earliest information given by the deceased and contrary to the facts proved in 11 the evidence, in my view, the statement recorded by PW.13 as per Ex.P.9 cannot be given credence. But the other evidence, as discussed above is sufficient to hold that the deceased herself poured kerosene oil and set her on fire.
11. Having come to the above conclusion, the question now remains for consideration is, whether the act was abetted by the accused so as to render him liable for punishment under Section 306 of IPC?
12. Learned counsel for the appellant/accused would contend that the circumstances proved in the evidence indicate that there was neither any "instigation" nor any "abetment" by the accused and therefore the accused is not liable to answer the charge. He has placed reliance on the decision reported in 2015 (4) KCCR 4000 (supra) of this Court and also the case of Chitresh Kumar Chopra Vs. State (Government of NCT of Delhi) reported in (2009) 16 SCC 605. In the latter case, the Hon'ble Supreme Court has discussed the parameters of abetment as defined in Section 107 of IPC 12 and relying on the observations made in the case of Ramesh Kumar Vs. State of Chhattisgarh reported in (2001) 9 SCC 618 has held that in order to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other, by "goading" or "urging forward". In para 19, the Hon'ble Supreme Court has reiterated the observation made in Ramesh Kumar as under:
"Where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and 13
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.
Undoubtedly, presence of mens rea is the necessary concomitant of instigation".
The above proposition goes against the contention urged by the learned counsel for the appellant/accused. As already discussed above, the circumstances brought out in the evidence of PWs.3, 5, 6 and 7 clearly establish that the deceased was subjected to continuous and unbearable cruelty in the matrimonial home. These witnesses have unequivocally stated before the Court that, the accused was regularly quarrelling with the deceased suspecting her fidelity. Their evidence finds full corroboration in the contents of Ex.P.6, wherein the deceased has narrated the specific instances of cruelty meted out by the accused. Even though there is no evidence to show that earlier to the incident she had complained of these events or that any mediation was convened in that regard, yet, solely on that ground, the 14 evidence brought on record with regard to the specific instances of cruelty inflicted by the accused during her lifetime cannot be brushed aside. The circumstances proved in evidence, in my view squarely fall within the meaning of "instigation" and "abetment" as defined in Section 107 of IPC. But for the ill-treatment and harassment by the accused there was absolutely no reason for the deceased to resort to the extreme step of ending her life. The circumstances brought out in the evidence clearly indicate that having no other option, she was driven to pour kerosene on her and end her life. Therefore, the facts and circumstances proved in evidence, in my view satisfy the ingredients of Section 107 of IPC thereby rendering the accused liable for conviction under Section 306 of IPC.
13. Insofar as the charge under Section 498A is concerned, there is abundant material on record to show that immediately preceding the incident, the deceased was 15 subjected to physical and mental cruelty by the accused. I do not find any error or infirmity whatsoever in the findings recorded by the trial Court on this charge. Even on reappreciating the entire material, I do not find any justifiable reason to interfere with the conclusions arrived at by the trial Court holding the accused guilty of the offences under Sections 306 and 498A of IPC. The appellant has not been able to point out any perversity in the impugned judgment warranting interference by this Court. As a result, the conviction recorded by the trial Court deserves to be confirmed and is accordingly confirmed.
14. Insofar as imposition of sentence is concerned, having regard to the facts and circumstances of the case, I am of the view that the punishment imposed by the trial Court is grossly disproportionate to the offence proved against the accused. The trial Court has imposed the maximum sentence prescribed under Section 306 of IPC. 16 As already discussed above, there is no material to show that earlier to the incident the deceased had complained of any cruelty or ill-treatment by the accused to her immediate relatives or to the police. The statements made by her in Ex.P.6 indicate that she was driven to commit suicide on account of the incident that took place in the early morning at 5.00 a.m. The narration made in Ex.P.6 goes to show that such occurrences were regular feature in the house and therefore the accused might not have anticipated that on the fateful day the deceased would resort to the extreme step to end her life. It is a matter of record that both the parties along with their children were residing in the matrimonial home. The accused does not have any criminal antecedents other than that he was illtreating the deceased suspecting her fidelity. Therefore, taking into consideration all these facts and circumstances, I am of the view that it would serve the ends of justice if the sentence of imprisonment awarded by the trial Court is reduced to five years of imprisonment 17 along with a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) for the offence punishable under Section 306 of IPC. To this extent, the impugned order of sentence requires to be modified. Whereas, the sentence awarded by the Tribunal for the offence punishable under Section 498-A shall remain unaltered.
15. For the above reasons, I proceed to pass the following:
ORDER Criminal appeal No.100193/2015 is allowed in part. The conviction of the appellant/accused Sri.Govinda Raja under Sections 306 and 498-A I.P.C. is confirmed.
In modification of the order of sentence dated 07.11.2014, the appellant/accused Sri.Govinda Raja is sentenced to undergo Simple Imprisonment for a period of five years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only).18
The sentence awarded by the trial Court for the offence under Section 498-A I.P.C. remains unaltered.
Both the substantive sentences shall run concurrently. The accused is entitled for set off for the period of custody undergone by him in terms of Section 428 of Cr.P.C. The accused shall serve the remaining period of sentence.
Sd/-
JUDGE Sh