Karnataka High Court
Kumara vs State By Shanthigrama Police on 19 March, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.262 OF 2014
BETWEEN:
Kumara,
S/o Kempegowda
Aged about 41 years,
R/o Sannachakanahalli Village,
Shanthigrama Hobali,
Hassan Taluk and District.
.. APPELLANT
(By Smt. Manjula N. Tejaswi - Amicus curiae)
AND:
State by Shanthigrama Police
(Hassan District)
Represented by Pubic Prosecutor,
High Court Building,
Bengaluru - 560 001.
.. RESPONDENT
(By Sri Showri H.R., HCGP)
Crl.A.No.262/2014
2
This Criminal Appeal is filed under Section
374(2) of Cr.P.C. praying to set aside the Judgment of
conviction and Order on sentence dated 25.03.2014
passed by the Principal Sessions Judge, Hassan, in
S.C.No.24/2013 convicting the appellant/accused for
the offence punishable under Sections 498-A and 306
of Indian Penal Code and to acquit the appellant from
the said offences, in the interest of justice.
This Criminal Appeal coming on for Hearing this
day, the Court delivered the following:
JUDGMENT
The appellant who was charge-sheeted for the offences punishable under Sections 323, 504, 506, 498-A and 306 of IPC by the respondent - Police, was found guilty for the offences punishable under Sections 498-A and 306 of IPC by the learned Principal Sessions Judge, Hassan (hereinafter for brevity referred to as "Trial Court") in S.C. No.24/2013. The appellant/accused was accordingly Crl.A.No.262/2014 3 convicted and sentenced by Order dated 25.03.2014 passed in said Sessions Case. However, the appellant/accused was acquitted from the offences punishable under Sections 323, 504 and 506 of IPC.
2. The summary of the case of the prosecution is that deceased Geetha and her younger sister Shobha were given in marriage to the present appellant/accused Kumara and his younger brother Manjegowda respectively. Their marriage was performed on 08.05.2003. From out of the marriage, deceased Geetha got one male child and female child born to them. Three years after her marriage, the accused started subjecting her to cruelty by abusing her and manhandling her for trivial reasons. He was also threatening her that she would be done to death. He was constantly asking her to die. Despite advice of elders, the accused continued the harassment. On Crl.A.No.262/2014 4 08.04.2011, at about 8.00 p.m. once again the accused initiated quarrel with Geetha in his house at Sannachakanahalli Village, Shanthigrama Hobli, Hassan Taluk, within the limits of respondent - Police Station. He subjected Geetha to torture due to which she poured kerosene upon herself and set fire in the house of accused. Though she was initially shifted to Government Hospital, Hassan and from there to Victoria Holsiptal, Bengaluru, however she succumbed to burn injuries at 9.45 p.m. on 06.07.2011. A complaint was lodged in that regard by her younger brother Jagadeesha (CW-1) with the respondent - police which was registered by them in their Station Crime No.109/2011 against the accused for the offences punishable under Sections 323, 504, 506, 498-A and 306 IPC. After investigation, the charge- sheet was filed for the alleged offences against the accused.
Crl.A.No.262/20145
3. Charges were framed against the accused for the charged offences. Since the accused pleaded not guilty, in order to prove the guilt against the accused, the prosecution examined witnesses PW-1 to PW-13 and got marked documents as Exs.P1 to P12(a) and material objects at MO-1 and MO-2. From the side of accused, neither any witness was examined nor any documents were marked as exhibits. After hearing both side, the Trial Court by its impugned Judgment acquitted the accused from the offences under Sections 504, 323 and 506 of IPC. However, it convicted him for the offences punishable under Sections 498-A and 306 of IPC and sentenced him accordingly. It is against the said Judgment of conviction and Order on sentence the accused has preferred this appeal.
Crl.A.No.262/20146
4. The respondent - State is being represented by learned High Court Government Pleader.
5. The records from the trial Court were called for and the same are placed before this Court.
6. Perused the materials placed before this Court, including the memorandum of appeal, impugned Judgment and the records from the trial Court.
7. For the sake of convenience, the parties would be referred to as per their rank before the Trial Court.
8. Even though the present appellant was being represented by his counsel, however, considering the absence of said learned counsel when the matter was taken up for final hearing, this Court, Crl.A.No.262/2014 7 by its order dated 05.03.2020, proceeded to appoint learned counsel Smt. Manjula N. Tejaswi as amicus curiae for the appellant in this matter.
9. Heard arguments from both side.
The points that arise for my consideration are:
(i) whether the prosecution has proved beyond reasonable doubt that after about three years of the marriage of the deceased Smt. Geetha with the appellant, the appellant subjected Smt. Geetha to cruelty in his house at Sannachakanahalli Village, Shanthigrama Hobli, Hassan taluk within the limits of respondent - Police Station due to which Smt. Geetha poured kerosene upon herself and set fire at about 8.00 p.m. on 08.04.2011 and sustained burn injuries and subsequently succumbed to the said injury on 06.07.2011 at 9.45 p.m. and thereby the accused has committed offences punishable under Sections 498-A and 306 of IPC?Crl.A.No.262/2014
8
(ii) Whether the Judgment of conviction and Order on sentence under appeal deserves interference at the hands of this Court?
10. It is not in dispute that deceased Geetha and her younger sister Shobha (PW-2) were given in marriage to the present appellant Kumara and his younger brother Manjegowda respectively on 08.05.2003 and thereafter Geetha started living in her matrimonial home at Sannachakanahalli within the limits of respondent - Police Station. It is also not in dispute that out of her marriage with the accused, Geetha gave birth to a boy child and a girl child among whom the girl child was elder. It is also not in dispute that on 08.04.2011, in the night at about 8.00 p.m. deceased Geetha sustained burn injuries by setting herself on fire by pouring kerosene upon her in her house, due to which injuries she succumbed in the Crl.A.No.262/2014 9 Victoria hospital at Bengaluru on 06.07.2011 at about 9.45 p.m. It is in the light of these undisputed facts, the evidence of prosecution witnesses are required to be analysed.
11. PW-1 (CW-1) Jagadeesha, the younger brother of the deceased, PW-2 (CW-2) Shobha, younger sister of the deceased, PW-4 (CW-6) Dilip, another younger brother of the deceased, PW-8 (CW-
5) Kantharaja, the brother in law of the deceased and PW-10 (CW-12) Javaramma, the mother of the deceased have all uniformly stated in their evidence that the accused being the husband of deceased Geetha was quarrelling with her on trivial matters and was abusing her, assaulting her constantly. However, there is some variation in the evidence of these witnesses about the period from which the accused is stated to have harassed and subjected the deceased Crl.A.No.262/2014 10 to cruelty. All these witnesses in common have also stated that the said cruelty meted out to her by the deceased led Geetha to commit suicide by putting herself on fire on 08.04.2011 to which injuries she succumbed on 06.07.2011. The evidence to this extent has come in uniformity in the evidence of these witnesses.
In addition to the above, PW-1 (CW-1) Jagadeesha, the younger brother of the deceased and the complainant in the case, has stated that for about one to one and a half years, the couple were leading happy life and thereafter the accused started pestering Geetha to get money from her parental house. He used to physically assault her and was suspecting her on small matters. He was also questioning her as to why she was still surviving and staying with him and asking her to die, otherwise, he Crl.A.No.262/2014 11 would kill her. The witness has stated that these details were given to him and his parents, brother and sister when she had come to their house and also when these people had gone to her house. In that connection, they had advised the accused. However, even after listening to the advice, once again, he continued his act of subjecting his wife to cruelty.
The witness has further stated that on the night of 08.04.2011 also at about 8.00 p.m., the accused subjected his wife to cruelty and assaulted her with his hands and asked her to die due to which she felt very much hurt. Therefore she poured kerosene upon her body and set fire. Since she was yelling due to pain, his sister Shobha called 108 ambulance and shifted the injured to government Hospital at Hassan. From the said hospital, the injured was further shifted to Victoria Hospital at Bengaluru where she Crl.A.No.262/2014 12 succumbed to the injuries while under treatment at about 9.45 p.m. on 06.07.2011. The witness also stated that it is because of the cruelty to which the deceased was subjected and the instigation by the accused to her to die, his sister Geetha committed suicide. The witness has further stated in view of the fact that his another elder sister Shobha was also given in marriage to the same house and considering that her family should not be ruined and children of deceased should not become orphan and that injured Geetha should continue marital life with the accused after she getting cured and also since the accused begged by holding the feet of his wife that he would take care of her properly in future and at the request of his injured sister Geetha, he has lodged the complaint with some delay. The witness identified the complaint at Ex.P1. He has also identified a kerosene can at MO-1 and stated that pouring the kerosene Crl.A.No.262/2014 13 upon herself which was there in the said can, his sister put fire upon her. He also identified the nighty at MO-2 as the one worn by the deceased at the time of the incident. He has also identified the accused as his sister's husband.
The witness was subjected to detailed cross- examination wherein he adhered to his original version.
12. PW-2 (CW-2) Shobha, the younger sister of the deceased, has stated that for about two to three years the deceased was taken care of well by her husband and thereafter the accused started abusing his wife on trivial matters and he was also questioning about her survival and was asking as to why she has not died. He was physically assaulting her. In that connection, her parents and brothers had also advised Crl.A.No.262/2014 14 him. Still, he continued his act of cruelty against the deceased.
The witness has further stated that at the time of the incident, she was at their house at Sannachakenahalli Village as she had gone there to attend festival. On the night of 08.04.2011, at about 8.00 p.m., the accused assaulted his wife Geetha with his legs, abused her in filthy language and also questioned her as to why she was still surviving and did not die. Seeing that assault, she went outside to bring one Shivaraj and other people in the locality. However, since it was night, none were available. By the time she returned, Geetha had poured kerosene which was in the can upon her and set fire. Geetha sustained burns on various parts of her body including chest, neck, abdomen and thigh regions. With the help of these people, she shifted Geetha to Crl.A.No.262/2014 15 Government Hospital at Hassan in 108 ambulance and from there to Victorial Hospital at Bengaluru. She was there under treatment for about three months, however she succumbed to the injuries at Victoria Hospital on 06.07.2011.
The witness has further stated that the accused had held her feet as well as the feet of his wife (the deceased) and requested not to disclose anything to anyone and that he would not give trouble in future and would take care of his wife properly. The witness has stated that since she was also given in marriage to the same house of the accused, he assured that he would take care of his children properly, no complaint was immediately given to the police in that regard. Geetha also told her that she (the witness) should not be put into problem. As such, Geetha also told the police that the incident was accidental. The witness Crl.A.No.262/2014 16 averred that since the accused subjected her sister to cruelty and was asking her to die, her sister committed suicide.
The witness further stated that at the place shown by her, the police have prepared the scene of offence mahazar as per Ex.P2. Police also seized the kerosene can and the nighty wore by her sister at the time of incident which she has identified, were marked as MO-1 and MO-2. The witness has also identified a marriage invitation card of the deceased at Ex.P3. She was also subjected to a detailed cross- examination wherein she adhered to her original version.
13. PW-4 (CW-6) Dilip, another younger brother of the deceased has also stated in his evidence that the accused was regularly assaulting his sister and was instigating her to commit suicide. This Crl.A.No.262/2014 17 aspect, his sister Geetha was informing them over telephone. In turn, he informed Shivaraj and others of the locality and requested them to set right the matter. His parents also summoned the accused and advised him suitably on several occasions despite which the accused continued the act of cruelty against his wife. The witness further stated that when the incident of fire took place on 08.04.2011, he was at Bengaluru. After knowing that his sister was brought for higher treatment to Victoria Hospital at Bengaluru, he went to the said hospital and enquired his sister who was in a speaking condition at that time. In reply, his sister told him that due to the unbearable cruelty meted out to her by the accused, she committed the said act. The witness has stated that his sister also told him that in case if she lodges complaint, the same would adversely affect the life of his another sister Shobha and also that of her Crl.A.No.262/2014 18 children, as such, neither she would lodge any complaint nor these people should lodge any complaint. The witness also says that at that time the accused who was also present in the ward had holding the feet of the deceased requested not to lodge any complaint and that he would take care of her and the future of their children also properly. The witness stated that it was the accused who is the cause for death of his sister.
14. The prosecution also examined PW-8 (CW-
5) Kantharaja, the brother-in-law of the deceased who has also supported the case of the prosecution stating that about two to three years after the marriage of Geetha with the accused, the accused started quarrelling with her on trivial matters and used to assault him and also threatening her to kill her. In the meantime, these people had been to the place of Crl.A.No.262/2014 19 the accused. There, even in the presence of the elders in the Village had summoned the accused and had advised him. The witness has further stated that on 08.04.2011 also, in the night, the accused had subjected his wife Geetha to cruelty and had physically assaulted, due to the said unbearable cruelty Geetha poured kerosene upon her and set fire. He has further stated that it is due to unbearable cruelty meted to her by the accused, said Geetha has died.
15. PW-10 (CW-12) Javaramma, mother of the deceased has also stated that her daughter was living with the accused after her marriage. For about four to five years, accused used to lookafter her daughter well. Later he started physically assaulting her daughter and ill-treating her. Like PW-1 and PW-2, this witness also stated that she had enquired her Crl.A.No.262/2014 20 daughter in the hospital about the incident. At that time, the daughter is stated to have told her that it is due to unbearable cruelty she has committed the said act and nobody should give any complaint in that regard since the same would lead to problems to her younger sister (Shobha). The witness has specifically stated that it was due to unbearable cruelty meted to her by the accused, Geetha committed suicide.
16. Apart from the above witnesses who are the close relatives and family members of the deceased, the prosecution also examined an independent witness i.e. PW-5 (CW-3) Rangegowda who claims to be from the same place of the accused. However, the said witness except stating that for about two to three years, the couple were living happily, has further stated that he does not know as to how they were after the said period. He expressed Crl.A.No.262/2014 21 ignorance about the accused subjecting the deceased to cruelty. He contends that though he resides about a distance of 50 meters from the house of the accused, still he was not knowing the developments that were taking place inside the house of the accused.
According to prosecution, this witness was expected to say about he also advising the accused suitably and about the death of the deceased. Since the said witness has not given any statement in that regard, at the request of prosecution, the witness was treated as hostile and prosecution was permitted to cross-examine him.
Even in his cross-examination, the witness did not support the case of the prosecution any further.
17. The prosecution also examined PW-9 (CW-
9) Nagesha as one of its witnesses mainly for the inquest panchanama. The said witness apart from Crl.A.No.262/2014 22 stating that inquest panchanama on the body of the deceased was done in his presence, also stated that deceased died in Victoria Hospital and she has died by putting herself on fire by pouring kerosene upon her since her husband was subjecting her to cruelty. He has also stated that without responding to the treatment, Geetha succumbed to the injuries. As such inquest panchanama was done wherein he was also a panch witness.
Except suggesting to this witness in his cross- examination from the accused side that he does not know any details about the family of the deceased, his other statements that the deceased Geetha died in Victoria Hospital where she had been admitted for treatment and she died because of the failure to the treatment and inquest panchanama as per Ex.P7 was Crl.A.No.262/2014 23 done in his presence were not denied from the accused side.
18. Keeping the above evidence displayed before the Court, learned amicus curiae for the appellant, in her arguments vehemently submitted that, primarily the very case of the prosecution is not believable for the reason of inordinate delay in lodging the complaint. Learned counsel submitted that when the alleged cruelty is said to have been caused against the deceased for quite a long time, none of the family members of the deceased attempted to lodge any complaint in that regard. As such, it creates a doubt in the case of the prosecution. Further, even after the death of the deceased which was on 06.07.2011 also, there is delay of one day in lodging the complaint which also shows that the family members of the deceased have cooked up a story against the accused. Crl.A.No.262/2014 24
19. Per contra, learned High Court Government Pleader in his arguments while drawing the attention of the Court to some portions in the evidence of PW-1, PW-2, PW-4, PW-5 and PW-10 submitted that the delay in lodging the complaint apart from being explained in the very first instance in the complaint has also been explained convincingly by all the above said material prosecution witnesses, as such, when those prosecution witnesses being the family members of the deceased were interested in ensuring the survival of the deceased and her continued marital life with the accused in a safe and better manner, they are not expected to lodge the complaint the very moment they come to know that the deceased was ill- treated by her husband prior to her death.
20. A reading of the complaint which is at Ex.P1 would go to show that in the said complaint Crl.A.No.262/2014 25 lodged on 07.07.2011 by PW-1, the complainant has attempted to explain the delay by stating that accused begged with the deceased (his wife) stating that the incident has happened and that he would not further subject her to cruelty, as such, no complaint should be given against him. Apart from the same, considering the fact that another sister Shobha was also given in marriage to the very same house, no complaint was given earlier. However, it is only after the death of said Geetha that they decided to lodge the complaint. By stating so, the complainant at the very first instance has shown the reason for the belated lodging of the complaint.
21. The said aspect that the accused had requested his wife Geetha and others not to lodge any complaint and had promised that he would take care of Geetha and her children properly is further stated Crl.A.No.262/2014 26 by PW-1, PW-2, PW-4 and PW-10. All these witnesses have uniformly stated that while injured Geetha was in hospital under treatment, the accused by holding her feet had requested not to lodge any complaint against him and had promised that he would take care of his wife and children properly with due care in future. In that regard PW-1 has stated that the said act of accused making such a request by holding her feet has been told to him by none else than his deceased sister Geetha. It is keeping the said words of Geetha and also keeping in mind the future of his another sister Shobha the complaint was not lodged immediately, thus the delay.
22. Even PW-2 Shobha also has reiterated the same reasons and she has stated further that the accused has not only held the feet of his wife Geetha and made such a request but he also requested her Crl.A.No.262/2014 27 not to disclose anything in that regard and that he would take care of his wife and children properly henceforth. It is for the said reason that the accused would take care of his children, they decided not to lodge a complaint immediately after the incident of fire.
23. The said reason given by all the material witnesses including PW-1, PW-2, PW-4 and PW-10 would clearly go to show that being the family members of deceased Geetha they were more interested in ensuring the happy married life of Geetha and her children rather than lodging a police complaint against the husband of the deceased (the accused). As such, the argument of the learned counsel for the appellant that the enormous delay in lodging the complaint with respect to the alleged cruelty against Geetha has remained unexplained is not acceptable.
Crl.A.No.262/201428
24. The alleged delay of nearly a day after the death of Geetha in lodging the complaint though has not been specifically explained by any of the prosecution witnesses, but by looking at the circum- stances of the case that Geetha died at 9.45 p.m. in the night of 06.07.2011 at a distant place at Bengaluru and the complaint was lodged with the respondent - police which is at Hassan, by considering the circumstances of the case, and after the death of their family member, that too, particularly a family member orphaning her two small children, the minimum works that are required to be attended to by the family members also cannot be ignored, in which event, any of the family members rushing to the Police Station which is at Hassan hundreds of kilometers away from the place of death of Geetha and lodging a complaint is not expected of anyone. As such, the alleged delay of about 23 hours in lodging the Crl.A.No.262/2014 29 complaint after the death of the deceased cannot be construed as causing any prejudice to the interest of the accused or it also cannot be inferred that in the said gap of time, the family of the complainant has conspired anything. As such, the said argument of learned counsel on the said point also is not acceptable.
25. Learned counsel for the appellant further submitted that the alleged duration of the cruelty said to have been meted to the deceased varies from witness to witness, as such, said variation in the period of alleged cruelty also prevents from believing their version, thus, it cannot be held that there was any cruelty meted to the deceased. In that regard when the evidence of above mentioned prosecution witnesses is seen, there is to some extent, variation in mentioning the duration / period for which the Crl.A.No.262/2014 30 deceased is said to have been subjected to cruelty by the accused. According to PW-1 - the younger brother of the deceased, it was only for about an year or 1½ years the deceased was taken care well by her husband and thereafter she was subjected to cruelty by the accused. As such, according to him, the period of cruelty was for a period of about seven years. Whereas, PW-2 Shobha - the younger sister of the deceased has stated that for about 2 to 3 years accused has taken care of the deceased well and thereafter he was subjecting her to cruelty, as such, according to the said witness, the alleged length of cruelty was for about five to six years.
26. The evidence of PW-4 Dilip and PW-8 Kantharaja are also on the lines of PW-2. The evidence of PW-10 Javaramma, the mother of the deceased is that for about four to five years, the Crl.A.No.262/2014 31 deceased was taken care well by the accused and thereafter she was subjected to cruelty by the accused. Even according to her, the period of cruelty was for about four years. The said alleged variance in the alleged length of cruelty by itself would not weaken the case of the prosecution. On the contrary the evidence of all these witnesses would go to show that the alleged cruelty was not a stray instance but it was a regular phenomena stretching for a period of not less than four years and extended upto six years. That means, for such a longer period the accused was subjecting the deceased to cruelty. Therefore the said argument of learned counsel for the appellant that the total period of cruelty has not come uniformly would weaken the case of the prosecution is not acceptable.
27. Learned counsel for the appellant also submitted that even though all these material Crl.A.No.262/2014 32 witnesses have spoken about the alleged cruelty said to have been meted by accused against the deceased, but none of them have given any specific instance of such cruelty, as such also, it is highly unbelievable that the deceased was subjected to cruelty.
28. Learned High Court Government Pleader submits that since the alleged cruelty was extended for not less than a period of four to six years and it was a regular phenomenon which the deceased patiently bore without complaining before the police or any third persons, in such circumstance of the case, it is not warranted that any particular instance of cruelty was required to be mentioned.
29. A careful perusal of the evidence of PW-1, PW-2, PW-4, PW-8 and PW-10 would go to show that the conduct of the accused in threatening the deceased during the alleged period of cruelty was Crl.A.No.262/2014 33 something of continuous harassment to her both physically and mentally. They have stated that accused was quarrelling with her and abusing the deceased in filthy language for every trivial matter.
30. PW-2 Shobha who apart from being the sister of the deceased was also given in marriage to the younger brother of accused, as such was residing at relevant point of time in the very same house where the deceased was living. She has categorically and specifically stated that accused was abusing her sister in filthy language and was also abusing her by calling her as "sulemunde". (An abusive word in Kannada language which means she is a prostitute and a widow). The said witness PW-2 being a resident in the same village and seeing the condition and living of her sister everyday in the said house makes it reliable and believable by the Court.
Crl.A.No.262/201434
31. In a family and in the present set of circumstances of the case one cannot be expected to maintain a diary and to record therein as to the details of the instances of how and when the accused has abused his wife Geetha in filthy language or scolded her or physically assaulted her. The evidence of all these material witnesses is that the accused was regularly abusing her in filthy language and was initiating quarrels with her on very small matters. They have even gone to the extent of stating that accused, apart from abusing her in filthy language was also assaulting the deceased with his hands and legs. The evidence of none else than PW-2 (CW-2) Shobha is clear on the said aspect. In the circumstances of the case, when a married housewife was abused continuously for years and was being physically assaulted by her husband for such a long period, it is not necessary that any specific event Crl.A.No.262/2014 35 has to be mentioned or recorded or demonstrated. On the other hand, the same would go to show that the victim was patient enough to tolerate such a long ill-treatment meted to her by none else than her husband. As such, the last leg of argument of learned counsel for the appellant that in the absence of any specific incident of cruelty the version of the prosecution cannot be believed, is also not acceptable.
32. Thus, the evidence of prosecution witnesses more particularly, PW-1, PW-2, PW-4, PW-8 and PW-10 would clearly go to establish that the accused, after taking care of his wife well only for a short period after their marriage was subjecting her to ill-treatment and harassment constantly till the incident of fire took place on 08.04.2011. Admittedly on 08.04.2011 at 8.00 p.m., the deceased sustained Crl.A.No.262/2014 36 burns in her house. Therefore the said alleged act of cruelty has extended up to she sustaining severe injury to her person which ultimately has resulted in her death on 06.07.2011. Therefore the Trial Court has rightly held that the prosecution has proved beyond reasonable doubt that the deceased was subjected to cruelty by her husband.
33. The next question to be considered is whether the death of the deceased was suicide and if so, whether accused has abetted the said death of the deceased?
34. All the material prosecution witnesses including PW-1, PW-2, PW-4, PW-8, PW-9 and PW-10 have stated that the death of the deceased was due to she pouring kerosene upon her and putting fire which resulted in severe burns to which she succumbed on 06.07.2011. Their evidence that the deceased Crl.A.No.262/2014 37 sustained burns on the night of 08.04.2011 and died due to the said injury on 06.07.2011 is not denied from the accused side.
The Inquest panchanama as per Ex.P7 which was drawn in the presence of PW-9 also shows that the panchas have opined that the death of the deceased was suicidal due to the burns sustained by the deceased. The panchas have specifically opined that the said burn incident took place on the night of 08.04.2011 and the deceased was admitted to Victoria Hospital at Bengaluru for treatment where she succumbed to the injuries on the night of 06.07.2011 at 9.45 p.m. The medical evidence in that regard is of PW-11 Dr. Sathish who has conducted autopsy on the body of the deceased. He has stated that body was depicting post burn over neck, chest, upper abdomen, upper Crl.A.No.262/2014 38 back and depigmented areas of burns were present over upper third of both upper limbs, face, both hands, lower abdomen and front of both thighs. On dissection he found both lungs were edematous and pale, cut section exudes froth mixed with blood. Abdomen contained 1000 ml. of fluid, rest of the organs were intact and thus, after going through the condition of the corpse the doctor has opined that all the injuries were antemortem in nature and showed unhealthy granulation tissue with area of healing. Ultimately he has opined that death was due to complications of the burn injury. Thus, even according to medical evidence, the death of the deceased Geetha was due to burns.
The prosecution has also produced a document at Ex.P1 through PW-13, then PSI of respondent - police which witness has stated that based on a MLC Crl.A.No.262/2014 39 report by the Chamarajendra Hospital at Hassan on 09.04.2011 in the morning he visited the said hospital at 8.00 a.m. After consulting the doctor he came to know that injured Geetha was shifted to Victoria Hospital at Bengaluru. Thereafter, at the instructions of his superior he proceeded to Victoria Hospital at Bengaluru on 10.04.2011 and after consulting the doctor about the condition of the injured to give her statement, he recorded the statement of the injured between 1.45 and 2.15 p.m. on the same day as per Ex.P11. He has also stated that apart from the signature of the doctor, he has also obtained the signature of the mother of the deceased Javaramma and Dilip - younger brother of injured also on the said document.
The said document which has not been specifically denied by any of the prosecution
witnesses, when read, would go to show that the incident of fire was an accidental one. The injured is Crl.A.No.262/2014 40 shown to have stated about the said incident that on 08.04.2011 in the night, due to failure of electricity in her house when she was carrying the kerosene can which was without lid to fill the burning lamp with the fuel, by slip the said can fell on the floor and the kerosene oil in it spilled upon the dress which she was wearing at that time. Due to shock she dropped kerosene lamp which she was holding in her left hand and since the said lamp fell on the floor, the entire kerosene spread over there caught fire in which she sustained injuries. She has stated that the incident has taken place inside her husband's house. Thereafter her husband put off the fire and shifted her in 108 ambulance to Government Hospital at Hassan. It is shown in the said statement that the injured has further stated that the said injury has been self inflicted injury by accident and there are no hands of anyone in it.
Crl.A.No.262/201441
35. The entire case of the prosecution about the nature of death as well as the alleged abetment by the accused in the alleged incident once again fails by virtue of this Ex.P11, provided if it is treated as established.
36. Learned Amicus Curiae for the appellant mainly relying upon the dying declaration at Ex.P11 submitted that all the material witnesses including the family members of the deceased have not denied or disputed that the deceased has given her statement before the police as per Ex.P11. As such the said dying declaration clearly goes to show that there is no role of the accused in the alleged death of the deceased. She further contends that the subsequent denial of the complainant and all the prosecution witnesses about the truthfulness of the statement Crl.A.No.262/2014 42 shown to have made in Ex.P11 is purely an afterthought.
37. Learned High Court Government Pleader in his arguments submitted that though the deceased is shown to have given her statement at a particular point of time as per Ex.P11, but the prosecution through cogent evidence has clearly demonstrated as to how the said statement shown to have been made in Ex.P11 is not believable and away from truth. Therefore the said statement shown have been made by the injured stating that the incident was by accident is only to protect her husband and her minor children and also her sister who subsequently had become her sister-in-law. Thus, at that particular point of time, with the fond hope of she recovering from the burns and joining her matrimonial home, the deceased had made that statement. However the Crl.A.No.262/2014 43 evidence of prosecution witnesses would go to show that the death of the deceased was not only suicidal but also it was abetted by the act of the accused.
38. As observed above, the first witness who speaks about the nature of the death of the deceased is complainant i.e. PW-1 (CW-1) Jagadeesha. Apart from his complaint, at more than one place in his evidence, he has stated that it was deceased herself who poured kerosene upon her and put fire. However, in his cross-examination at one place, in one sentence, a suggestion was made to the witness that the deceased sustained burn injuries by accident. However, the witness has not admitted the said suggestion as true. Barring this, in the cross- examination of all other material witnesses including PW-2, PW-4, PW-8, PW-9 and PW-10, no suggestion was made to the effect that deceased Crl.A.No.262/2014 44 Geetha herself poured kerosene upon her body and set fire. Further no suggestion was made to them that the said incident was accidental and Geetha did not set herself ablaze. Had really the burns upon deceased Geetha was accidental, then, in the cross- examination of all these material witnesses, the accused should have necessarily denied the cause for the injury and suggested to the witnesses that the incident of burns was accidental. But no attempt in that regard has been made from his side. Except suggesting that the evidence given by these witnesses is not true which is a omnibus denial in a single sentence, the accused has not even attempted to deny the alleged nature of death of the deceased Geetha which according to the prosecution was suicidal.
39. Even according to PW-2 (CW-2) Shobha who is the younger sister of the deceased, Crl.A.No.262/2014 45 she was present in the spot at the time of the incident and has seen the incident as an eye witness. Just prior to the incident of fire, accused was assaulting his wife Geetha and abusing her in filthy language. Noticing that she went outside the house to summon Shiva and other neighbours but by the time she returned Geetha had poured kerosene upon her and put fire upon herself. Her specific statement that soon prior to Geetha sustaining burns she was assaulted by the accused and that Geetha sustained burn injuries by pouring kerosene upon herself and setting fire has not been specifically denied in her cross-examination.
40. Further, in the evidence of PW-9 (CW-9) - Nagesha, the pancha of inquest panchanama, as already observed above, it has not denied his statement about the nature of the death who also has specifically stated Crl.A.No.262/2014 46 that panchas have opined that the burns were self inflicted by the deceased by pouring kerosene upon her and setting fire by herself. Admittedly the cause for death is the complications in the burn injuries. Thus the prosecution evidence clearly go to show that the burns found on the deceased was not accidental but it was suicidal. Since the deceased died due to the said burn injuries, the death of the deceased Geetha is suicidal.
41. The only point that remains to be considered is about the alleged abetment of suicide by Geetha, by the accused. In that regard as already observed above, all the material witnesses of the prosecution more particularly PW-1, PW-2, PW-4, PW- 8 and PW-10 have specifically stated that it was due to the cruelty meted to her by the accused who was also scolding the deceased and asking her to die, she Crl.A.No.262/2014 47 committed suicide by inflicting burns upon her. Challenging the said evidence of prosecution witnesses, learned counsel for the appellant in her arguments submitted that there is no convincing evidence to show that the alleged act of the accused has in any manner resulted in abetment of the suicide by the deceased.
She further submitted that even if it is taken that accused was harassing his wife by abusing her in filthy language including the derogatory words that she should not survive and that she has not died still, the same cannot be construed as an act of abetment to commit suicide by the deceased. In her support, she relied upon the two Judgments of the Hon'ble Apex Court in GURCHARAN SINGH Vs. STATE OF PUNJAB reported in (2017) 1 SCC 433 and M. ARJUNAN Vs. STATE REPRESENTED BY ITS Crl.A.No.262/2014 48 INSPECTOR OF POLICE reported in (2019) 3 SCC 315. Learned counsel also submitted that the dying declaration at Ex.P11 also goes to show that there is no abetment of suicide by the accused.
42. Learned High Court Government Pleader in his arguments submitted that evidence of prosecution witnesses clearly established that dying declaration is not reliable and the statement made by the deceased was only to protect her husband in the best interest of her minor children and therefore such a dying declaration should not be relied upon.
43. He further submitted that, the evidence of prosecution witnesses clearly go to show that the intensity of the cruelty meted out to Geetha by the accused has led her to commit suicide which amounts to an abetment of suicide by the accused. Crl.A.No.262/2014 49
44. The documentary evidence which speaks about the incident and by which inference can be drawn as to what led to the deceased sustaining burns is Ex.P11, the alleged dying declaration of the deceased. As already observed above, PW-13 then PSI of respondent - Police Station, claims to have recorded the said dying declaration in the presence of the doctor at Victoria Hospital in Bengaluru on 10.04.2011. The witness has stated that he has also obtained the signature of the mother and another younger brother of the deceased on the said dying declaration. Incidentally the said mother and brother of the deceased who are examined as PW-10 & PW-4 respectively not only did not deny the recording of dying declaration, but at the same time have also admitted that they have put their signature on the dying declaration. Even PW-1 in his cross-examination has also admitted that his sister has given a Crl.A.No.262/2014 50 statement before the police. However, when the contention of these material witnesses is that the contents of the said dying declaration that incident was accidental and there is involvement of nobody in the injury sustained by Geetha is totally a false statement and it is given only to protect her husband and minor children, as such, the said document is now required to be analysed very carefully.
45. At the outset when Ex.P11 is read, it would go to show that the injured Geetha (as she was at that time), apart from stating that the incident was accidental since the kerosene can which she was carrying in her one hand and kerosene lamp in another, got slipped down and fire was caught, has also stated that her husband was there in the house and it was he who put off the fire and shifted Geetha to Government hospital and from there to Victoria Crl.A.No.262/2014 51 Hospital, Bengaluru in 108 ambulance. In order to verify the said contention or support the said contention, admittedly the I.O. appears to have not conducted any investigation. He has not collected any material or any evidence to ascertain about the non availability of electricity in the house of the accused on the night of 08.04.2011. Except the statement shown to have been made in Ex.P11 about the non availability of electricity and deceased carrying the kerosene can in her one hand and burning kerosene lamp in another hand, nobody have even shown to have given any evidence in order to gather the offence proved or state anything in that regard. At least, even in the inquest panchanama at Ex.P7 also there is no mentioning in that regard. More interestingly, had that been the case that at the time of incident deceased was carrying kerosene with her and also burning kerosene lamp, same has not been Crl.A.No.262/2014 52 suggested to any of the prosecution witnesses from the accused side in their cross-examination.
Had really been the contention of the accused was that the injury sustained by the deceased was purely accidental, then, at the time of cross- examination of the material prosecution witnesses, since the accused was aware of the alleged dying declaration said to have been recorded in the matter, the accused should have necessarily and invariably made use of such an alleged statement of the deceased which would have fully supported and protected him. For the reason best known to him, the accused nowhere whispered anything about the alleged statement of the deceased about the accidental occurrence of fire in her house resulting in burns upon her. On the other hand, as already observed above, the evidence of all the material Crl.A.No.262/2014 53 witnesses of the prosecution that the deceased poured kerosene upon herself and set fire by herself has, throughout remained undenied. That itself imbibes a serious doubt in the truthfulness of the statement said to have been made by the deceased in Ex.P11.
46. Secondly, PW-2 Shobha who admittedly had led her marital life in the house where her deceased sister was also living with her husband, has specifically stated in her cross-examination that when her sister had poured kerosene upon herself and put fire, the accused though was inside the house, he did not attempt to put off the fire, but he was simply watching the same. She has further stated that it was she who telephoned for an ambulance vehicle. In her evidence she further stated that it was she and others who put off the fire and shifted injured Geetha to Government hospital at Hassan. The said evidence of Crl.A.No.262/2014 54 none else than the younger sister of the deceased who claims to be present at the time of incident implies that accused did nothing but it was she who telephoned to ambulance and shifted the injured Geetha to Government hospital. The said evidence has not been denied in her cross-examination.
Similarly, the evidence of other material prosecution witnesses including PW-1 - Jagadeesha, that it was PW-2 Shobha who shifted the injured Geetha in 108 ambulance to Government hospital, Hassan, has remained undenied. Therefore the said undenied evidence of the prosecution witnesses that it was not the accused but it was PW-2 Shobha who summoned the ambulance and joined by others shifted the injured to hospital further shows that the statement in Ex.P11 that it was the accused who put Crl.A.No.262/2014 55 off the fire and summoned the ambulance and also shifted the injured to hospital is false.
47. The above observation that the statement of the deceased shown to have been made in Ex.P11 is not true in itself is further tried to be proved by the prosecution witnesses who have given the reason as to why the deceased was constrained to make such a statement in Ex.P11. According to them it was an attempt to save her husband. In that regard, the complainant in the very first instance in his complaint, has shown that the deceased had two small children and also her younger full-blood sister who was also given to the same family and to the same house. The said aspect is further elaborated by him in his evidence as PW-1 and has stated that it is for the said reason his sister Geetha was hesitant to reveal the true facts and proceeded to save her husband and also prevented Crl.A.No.262/2014 56 the others in her family from lodging any complaint immediately.
The witness has specifically stated that said Geetha had stated that the accused holding her feet had begged that no action be taken in that regard and that he would take care of her well. The said statement is further corroborated by PW-2 Shobha who, as already observed above has proceeded one step further by stating that accused apart from holding the legs of his wife Geetha had also requested her (PW-2) that they should not disclose anything to anybody and that he would not give any trouble to them in future. The said witness also stated in her evidence that since she was also given to the same family and there was possibility of children becoming orphan, she also kept quiet.
Crl.A.No.262/201457
More interestingly, none else than the mother of the deceased i.e., PW-10 Javaramma has also stated in her evidence that while the injured was in hospital, she had enquired her about the incident and injured stated that if her mother reveals before anybody about the cruelty for which she was subjected to by the accused, her husband would consume poison, as such, she should not disclose the same before anybody. The witness has further stated that considering the two minor children of the injured would become orphan and her another daughter would also be put into trouble, as requested by her injured daughter she did not disclose. This evidence viewed with the analysis of the nature of the death of the deceased, would clearly go to show that Ex.P11 though is shown to be a statement said to have been made by the deceased but the same is not safe to believe as a trustworthy statement of true facts made Crl.A.No.262/2014 58 by the deceased. As such, the Ex.P11 though is shown to prove to be a statement made by the deceased, still same is not safe to solely believe and act upon.
48. Thus, the argument of the learned counsel for the appellant that Ex.P11 is the dying declaration and the same would go to show that the accused is not guilty and has not laboured for the alleged incident of suicide or death of the deceased is not acceptable.
49. However, the more intrinsic point that remains for consideration is that even after assuming that the deceased was subjected to cruelty by the accused and soon prior to her death also she was subjected to cruelty by the accused who had assaulted her with his legs and abused her in filthy language, still, whether the act of the deceased in pouring Crl.A.No.262/2014 59 kerosene upon herself and setting fire due to which burns she subsequently succumbed has resulted in the accused abetting the said commission of suicide by the deceased?
50. According to the prosecution, it is the accused who had abetted the suicide of the deceased Geetha. Section 107 of Indian Penal Code defines as to what is abetment. Same is extracted below:
" 107. Abetment of a thing A person abets the doing of a thing, who- First-Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if any act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing." Crl.A.No.262/2014 60
51. According to the prosecution in the instant case, the accused / appellant by his repetitive words of asking Geetha to 'go and die' has instigated her to commit suicide.
52. Hon'ble Apex Court in SANJU ALIAS SANJAY SINGH SENGAR Vs. STATE OF M.P. reported in (2002) 5 SCC 371, was pleased to observe that, under S.107 IPC "instigate" denotes causing incitement or urging to do some drastic or inadvisable action or to stimulate or incite. It also observed that presence of mens rea is the necessary concomitant for instigation. Words uttered in a quarrel or on the spur of moment, such as ' to go and die' cannot be taken to be uttered with mens rea.
53. In the said case, the appellant had asked the deceased to go and die. Secondly there was a gap of two days between alleged abusive words said to Crl.A.No.262/2014 61 have been told to the deceased and the deceased found hanging. Though in the alleged death note it was repeatedly mentioned as 'Sengar is responsible for my death' 'Sanjay Sengar is responsible for my death', 'Sanjay Sengar is responsible for my death', still, the Hon'ble Apex Court was pleased to hold that the same would not fulfil the ingredients of abetment.
54. In GURCHARAN SINGH Vs. STATE OF PUNJAB reported in (2017) 1 SCC 433, the Hon'ble Apex Court at para 27 of its Judgment was pleased to refer to its another previous case (Randhir Singh Vs. State of Punjab - (2004) 3 SCC 129) and to observe as follows:
" 13. In State of W.B. v. Orilal Jaiswal, this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim Crl.A.No.262/2014 62 had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hyper- sensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
55. It was further observed in the same case by the Apex Court that to constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate guilt against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of accused to actualise the suicide Crl.A.No.262/2014 63 would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment.
56. The Hon'ble Apex Court in M. ARJUNAN Vs. STATE REPRESENTED BY ITS INSPECTOR OF POLICE reported in (2019) 3 SCC 315, while discussing about the ingredients of S.306 of IPC was pleased to observe that essential ingredients of offence under S.306 IPC are abetment and intention of accused to aid or instigate or abet deceased to commit suicide. However, insulting deceased by using abusive language will not by itself constitute abetment of suicide. There should be evidence capable of suggesting that accused intended by such acts to instigate deceased to commit suicide. Crl.A.No.262/2014 64
57. In the case on hand when the above principle laid down by the Hon'ble Apex Court is applied, firstly it could be seen that even according to all the material prosecution witnesses since about not less than four to six years the appellant/accused was, apart from subjecting his wife to cruelty, was also abusing her in filthy language and asking her to die. Though none of the witnesses have given any specific incident as to under what circumstances or with what intention the accused is alleged to have uttered those words 'go and die', as such, the mere uttering of the words 'go and die' in the course of alleged abusing of his wife by itself in the circumstances of the present case, cannot be considered as the accused having any intention or illwill to instigate his wife to make her to commit suicide.
Secondly, even according to the prosecution, the alleged uttering of the words 'go and die' 'why are Crl.A.No.262/2014 65 you not dying' 'why are you still living' alleged to have been uttered by the accused was not a single or a stray incident or on limited occasions. According to them, since the cruelty said to have been begun as against the deceased, from that moment itself the accused is also said to have asking her to 'go and die'. As noticed above, the said duration of cruelty meted to the deceased was spread over a large span of four to six years and spreading on innumerable occasions, which means the act of the accused in uttering the words 'go and die' was also continuous for several years and on innumerable times. However, on all those occasions, the act of the accused has not at all resulted or was not treated as an instigation or an abetment.
In such a situation, it is not known as to how the deceased Geetha who could tolerate or ignore all such words of alleged instigation for such a long duration of Crl.A.No.262/2014 66 four to six years could have acted only on last occasion of a similar alleged repetition of the same words on the night of 08.04.2011 at about 8.00 p.m. which was seen prior to the alleged fire incident. Therefore even though the accused had subjected the deceased for cruelty which led her to commit suicide and prosecution has proved the said offence on the part of the accused, still prosecution has not been able to prove that the alleged act of the accused of asking his wife to go and die has in any manner resulted into an abetment of her suicide, by him. However, the Trial Court without noticing this aspect and without appreciating the evidence led by prosecution witnesses properly on the said point appears to have been carried away by the evidence of witnesses that accused was asking his wife to die and concluded that the same has amounted to abetment.
Crl.A.No.262/201467
58. Since the said finding of the Trial Court holding the accused guilty for the offence under S.306 IPC has now been proved to be erroneous, the same deserves to be set aside. However, its finding holding the accused guilty for the offence punishable under S.498-A IPC does not warrant interference in the hands of this Court. Since the sentence ordered by the Court for the proved guilt of offence punishable under S.498-A IPC also being proportionate to the gravity of the offence proved, the order of sentence for the offence punishable under S.498-A does not deserve any modification by this Court. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part.
The Judgment of conviction and Order on sentence dated 25.03.2014 in S.C. No. 24/2013 Crl.A.No.262/2014 68 passed by the Principal Sessions Judge, Hassan, holding the accused / appellant guilty for the offence punishable under S.306 IPC is set aside.
The accused / appellant is acquitted of the offence punishable under S.306 IPC. However, the Judgment of conviction passed in the same Judgment holding the accused guilty of the offence punishable under S. 498-A IPC and the Order on sentence passed in that regard stands confirmed.
The fine amount paid by the accused if any with respect to the Order of sentence for the offence punishable under S.306 IPC be refunded to him after the period of appeal is over and if no appeal is preferred.
The bail bond of the accused stands cancelled. Crl.A.No.262/2014 69 The appellant/accused is entitled for the benefit under S.428 Cr.P.C.
The Court while acknowledging the service rendered by the learned Amicus Curiae Smt. Manjula N. Tejaswi, recommends honorarium of not less than `6,000/- to her payable by the Registry.
Registry to transmit a copy of this Judgment along with Trial Court records immediately to the concerned Trial Court.
The appellant is also entitled for a free copy of this Judgment.
Sd/-
JUDGE sac*