Karnataka High Court
Sri. Sunkappa Hanamappa Bidari vs The State Of Karnataka on 1 July, 2020
Equivalent citations: AIRONLINE 2020 KAR 1486
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1 s t DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.2768 of 2011
BETWEEN:
SRI. S UNKAPPA HANAMAPPA BIDARI
AGE 43 YRS ., OCC: SERVICE,
R/O YARAGOPPA , TAL: BADAMI
AT PRES ENT KILLA , RAMADURG,
DIST: BELGAUM.
... APPELLANT
(BY SRI. SRINAND A. PA CHHA PURE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH RAMADURG POLICE STATION
NOW REPRES ENTED BY SS P.
... RES PONDENT
(BY SRI. RAMESH B. CHIGARI , HCGP)
THIS CRIMINAL APPEA L IS FILED UNDER
SECTION 374(2) OF CR.P.C. SEEKI NG TO SET ASID E
THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 02.08.2011/ 03.08.2011 PASSED BY
THE V ADDL. SESSIONS JUDGE, BELGA UM, IN S.C.
NO.41/ 2009 FOR THE OFFEN CES PUNISHABLE UNDER
SECTIONS 498 (A ) AND 306 OF IPC AND ACQUIT THE
APPELLANT .
THIS CRIMINAL A PPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
2
JUDGMENT
This appeal is filed against the judgment of conviction and order of sentence dated 02.08.2011 passed in S.C. No.41 of 2009 by the V Additional Sessions Judge, Belgaum, convicting the appellant-accused for the offences under Section 498-A and 306 of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) sentencing to undergo simple imprisonment for 2 years and to pay fine of Rs.5,000/- in default to undergo further simple imprisonment for 5 months for the offence under Section 498-A IPC and to undergo simple imprisonment for a period of 3 years for the offence punishable under Section 306 of IPC and to pay fine of Rs.10,000/- in default to undergo further simple imprisonment for 10 months.
2. The factual matrix of the case is that the PW- 1-Sri. Anantappa is the complainant and PW-6-Smt. Kamala is his wife and they have two sons and two 3 daughters and of them, Smt. Geeta @ Shilpa was given in marriage to accused in the year 2001 and the marriage was performed by the complainant by spending Rs.3,00,000/-. The accused is working as Physical Director at Ramdurg in High School of Basaveshwar Vidya Vardhak Sangh and in Killa locality of Ramdurg, he had taken a house on rental basis wherein he was residing with his wife-Geeta @ Shilpa. After marriage, the accused was not leading proper marital life with his wife but demanding further amount from her parents' house and also ill- treating and harassing her, as she had not begotten any child. These facts were being told to the complainant whenever Smt. Geeta visited Bagalkot and at that time, the complainant used to go to Ramdurg and advised the accused to treat his wife (Geeta) in proper manner and to lead peaceful life. But the said words fell on the deaf ears and he continued to ill-treat Geeta.
On 26.09.2008 at 6.45 am, the accused over telephone informed the complainant that his wife has set 4 herself ablaze and asked to rush to Ramdurg immediately and after a short while, from the same phone another person informed the complainant that Smt. Geeta is no more. Therefore, the complainant together with his relatives, by hiring a vehicle, came to Ramdurg and noticed the dead body of Geeta lying below the cot facing the ground. Her entire body was burnt and on account of the smoke, the room had become black. The bed was also burnt and there was water on the floor. On looking to these situations and by enquiring with neighbours, it was confirmed that on account of torture given by the accused to his wife on the ground that she is barren and not bringing further amount from her parents' house, sustained mental, physical harassment and on account of it, committed suicide by pouring kerosene and setting herself ablaze. The accused is responsible for the cause of her death. The complaint Ex.P-1 is registered at Ramdurga Police Station in Crime No.203/2008 for the offences punishable under Sections 498-A and 306 of IPC. The Investigating Officer, after completing the 5 investigation, filed charge sheet. The JMFC, Ramdurg, has taken cognizance and committed the case to the Sessions Judge, Belgaum.
The prosecution examined 16 witnesses as PWs.1 to 16 and got marked documents Exs.P-1 to P-6 and material objects as M.Os.1 to 4. The statement of the accused under Section 313 of the Code of Criminal Procedure(hereinafter referred to the 'Cr.P.C.', for brevity) was recorded.
After hearing the arguments on both sides, the trial Court framed the points for consideration and convicted the appellant for the offences punishable under Sections 498-A and 306 of IPC.
3. The said judgment of conviction and order of sentence has been challenged by the appellant-accused on the following grounds:
a) The trial court has made an apparent error in over looking the major discrepancy in the evidence of the witnesses;6
b) The trial court has erred in believing in the corroborated evidence of the prosecution witnesses;
c) The learned Sessions Judge failed to understand the principles behind convicting the accused under Section 498-A and 306 of IPC;
d) PWs.1 and 6 are the father and mother of the deceased.
PWs.7 and 8 are the brothers of the deceased. PW-9 is the sister's husband of deceased and PWs.10 and 11 are the maternal uncles of the deceased. All these witnesses are the relatives of the deceased and interested witnesses. There is no material whatsoever to show that the appellant has ill- treated or tortured the deceased except the evidence of the interested witnesses.
e) The appellant in his statement under Section 313 of Cr.P.C. stated that himself and his wife were fine and no sort of indifference between them and he has not tortured or ill- treated her. But as she was barren both took treatment at Belgaum wherein the Doctor had told that there is some mistake with appellant. On coming to know of these facts, his wife has committed suicide.
f) The prosecution has not placed any strong and cogent evidence so as to implicate the appellant to the offence alleged against him.
g) The judgment of conviction is otherwise improper and the sentence imposed is too harsh.
7
4. Heard the arguments of the learned counsel for the appellant and the learned Government Pleader for the State.
5. Learned counsel for the appellant argued that the prosecution witnesses who have supported the case of the prosecution are all relatives of the deceased Geeta and their evidence is not corroborated by the neighbours and therefore their evidence cannot be relied upon. There is a delay in filing the complaint and PW-1-father after due deliberations with the relatives and only after the accused refused to make payment of Rs.2,00,000/- demanded by them, has chosen to file a complaint against the accused. The delay is not explained. He further argued that the Investigating Officer has not been examined and it is fatal to the case of the prosecution; that the prosecution has not proved Ex.P-2-inquest panchanama, Ex.P-3-spot panchanama and Ex.P-4- cloth seizure panchanama as PWs.2 to 5 have not supported the case of the prosecution. He further argued that the trial Court has convicted the appellant-accused only on the ground that he has failed to 8 substantiate his defence. The trial Court has not taken into consideration the evidence of PWs.13 to 15, who are the neighbours of the deceased and the accused and PW-12, who is the landlord of the house wherein the accused and the deceased Geeta were residing as tenants. On these grounds, counsel sought for acquittal of the accused.
6. The learned Government Pleader argued that the trial Court on proper appreciation of the evidence on record, has rightly convicted the appellant-accused. He has supported the reasons assigned by the trial court. He further argued that the evidence of PWs.1 and 6 to 11 is sufficient to convict the appellant-accused for the offences leveled against him. He has further argued that non- examination of the Investigating Officer is not fatal to the case of the prosecution. On these grounds, he sought for dismissal of the appeal.
7. On the grounds made out and considering the arguments advanced, the following point arises for my consideration:
9
Whether the trial Court erred in convicting the appellant/accused for the offences under Sections 498-A and 306 of IPC?
My answer to the above point is in the affirmative for the following reasons:
8. Smt.Geeta @ Shilpa is the wife of the appellant-accused and the date of their marriage is 15.04.2001 and they were residing at Ramdurg in a rented house belonging to PW-12-Jagadeesh Jalageri and the accused was working as a Physical Instructor in BVVS High School, Ramdurg. Geeta @ Shilpa committed suicide by pouring kerosene and setting ablaze herself in the house of the accused and the same is not in dispute.
9. PW-16 is the Doctor who has conducted postmortem examination over the dead body of the deceased. Ex.P-6 is the postmortem report wherein PW- 16 has opined that death of the deceased was due to neuro-shock secondary to 92-95% burns superficial to 10 deep. Therefore, the prosecution has established that the death of the deceased Geeta is suicidal death.
10. PW-1-Anantappa, who is the father of the deceased, has deposed that after marriage, his daughter Geeta and the accused were residing in a rented house at Ramdurg belonging to PW-12-Jagadeesh Ningappa Jalageri. After marriage, the accused started harassing the deceased to bring dowry and gold. He further deposed that the accused was teasing that she has not begotten child and she used to tell them the same whenever she used to go for festival and vacation to their house. He further deposed that he and his wife used to go to Ramdurg and adviced the accused not to do so and in spite of that, the accused continued to do the same thing. In the cross-examination of PW-1, it is elicited that during 7½ years of marriage, his daughter Geeta had never come to their house after quarreling with her husband. He has stated that the accused and his daughter had taken treatment with the Dr. Metagudda for their infertility and 11 the Doctor has opined that Smt. Geeta had no deficiency. PW-1 has pleaded ignorance when it is suggested that the doctor has told that there is deficiency in the accused and the doctor has advised that he has to be treated for that. For the said purpose, the deceased used to take her husband to Dr. Metagudda's hospital. He has further deposed that he enquired with the teachers known to him regarding the relationship between the accused and the deceased and they told that they did not know anything about the same.
11. PW-6-Kamala is the mother of the deceased. She has deposed that after marriage, her daughter Geeta was residing with the accused in a house at Ramdurg wherein he is working as a Physical Instructor at BVVS, High School and they are residing in a rented house belonging to PW-1 Jagadeesha Nagappa Jalageri and the accused has not kept her daughter happily. She has further deposed that accused used to tease the deceased as, she is barren and she has not given birth to a child 12 and asked her to bring money from her parents, as his father is retired and she used to tell the same to them whenever she visited Bagalkot. In the cross-examination, she has denied the suggestion that the deceased never came to her house after quarreling with her husband. The same is contrary to the evidence of PW-1, who has deposed that her daughter had never come to their house after quarreling with her husband. It is further elicited in her cross-examination that as deceased Geeta had not begotten any child, she was taking her husband to the Dr.Metagudda and the doctor has opined that deceased Geeta had no deficiency. She has pleaded ignorance to the suggestion that she do not know regarding that the doctor has opined that accused is having some deficiency in getting a child. It is elicited in the cross-examination that she has not stated before the police in her statement that the accused demanded money which PW-1 had got after retirement. The said evidence of PW-6 is an improvement and to prove the same, the investigating officer has not been examined.
13
12. PW-7-Umesh is the elder brother of the deceased Geeta. He has deposed that after marriage, his sister Geeta was residing in Ramdurg in her husband's house and only they both were residing there. He has further deposed that the accused used to ill-treat the deceased mentally as she has not begotten any child and also to bring money. In the cross-examination, it is elicited that after marriage, he visited Ramdurg for two times and at that time, the accused and the deceased were leading happy marital life. It is stated that he do not know that accused and the deceased were taking treatment at Metagudda Hospital and also with regard to the opinion given by the doctor that there is no deficiency in the deceased. He has further deposed that he was told that accused is having deficiency. He has further deposed that he has not enquired the neighbours as to how the deceased and the accused were leading their life. He has deposed to the suggestion that he do not know that even after 7½ years of marriage, as the deceased did not begot 14 a child and she is having deficiency, she has committed suicide.
13. PW-8 -Satish is one of the elder brothers of deceased Geeta. He has deposed that after marriage, deceased Geeta was residing with her husband in Ramdurga in Killa oni and the accused was not looking after well the deceased and he was teasing her as she has not begotten any child and she is infertile and she has not brought dowry. It is elicited in his cross-examination that he used to visit the house of the deceased Geeta often and he never stayed in the house and he is not acquainted with the neighbours of his sister and he do not know the colleagues of the accused. He has further deposed that the Doctor has opined that there is no deficiency in Geeta to beget a child and only the accused is having the deficiency. The same was not told to him either by his parents, Geeta or the accused.
14. On looking to the facts elicited in the cross- examination of PWs.7 and 8, it is clear that they are not 15 aware of the family affairs of their parents and sister as they were unaware of getting opinion of the Doctor Metagudda with regard to infertility of the accused and the deceased.
15. P.W.9 is the brother-in-law of the deceased and he has deposed that after marriage the deceased the accused were residing in a rented house at Ramdurg and he is residing in Bagalkot and accused used to ill-treat the deceased Geeta as she has not begotten children and asked her to bring money from her parents and therefore she committed suicide by setting fire herself. In the cross- examination he has given ignorance to the suggestions that accused and deceased had taken the opinion of Dr. Metagudda regarding their infertility and he has stated that he was not aware of it. He has further stated that when they went to the house of the accused, people had gathered there and he enquired with them as 'accused used to give ill-treatment to his wife' and the same has not been stated by him in his statement before the Police. 16
16. P.W.10 is one of the maternal uncle of the deceased. He has deposed that after marriage, on 15.04.2001, Geeta was residing with accused in Ramdurg in a rented house where the accused was working as Physical Director in Basaveshwar College, Ramdurg. He has further deposed that accused used to ill-treat the deceased as she has not begotten a child and she is infertile and asked her to bring money from her parents. In the cross-examination it is elicited that he is residing in Gokak and used to visit Bagalkot in the weekends. It is further elicited that he has not visited the house of Geeta after her marriage and he do not know who are the neighbours and the colleagues of the accused. It is further elicited that, he is not aware regarding the treatment of the accused and deceased with Dr. Metagudda regarding their infertility.
17. P.Ws.1, 6 to 10 are close relatives of the deceased Geeta, who are residing in Bagalkot. Their version is that only when the deceased used to visit 17 Bagalkot, she used to tell regarding the ill-treatment by the accused to her. P.Ws.1, 6 to 10 have not witnessed any ill-treatment by the accused to the deceased.
18. P.W.11 is the relative of the accused and a resident of Bagalkot and he has deposed that, after the marriage, the deceased was residing in Ramdurg along with her husband and accused was ill-treating her as she has not begotten children and asking her to bring dowry and the deceased used to intimate the same whenever he met her. He has further deposed that after marriage, deceased Geeta used to visit his house and at that time, deceased Geeta has not told any ill-treatment or harassment before him. In the cross-examination, it is elicited that prior to the incident, he has visited one or two times to the house of the accused and the deceased situated near bus-stand and he halted on one occasion in their house and at that time, the accused and deceased were leading happy married life. The very admission given by the P.W.11 goes to show that he visited their house 18 prior to the incident and at that time, the accused and the deceased were happy and there was no quarrel between them. Therefore, the evidence of P.W.11 regarding ill- treatment by the accused to the deceased in chief- examination cannot be believed.
19. P.W.12 Jagadeesh Ningappa Jalageri is the owner of the house wherein the deceased and accused were residing as tenants. He has deposed that himself and the accused had worked together in the High School for a period of 5 to 6 years and after his transfer to Bagalkot, he has rented his house to the accused and accused was residing with his wife in the said house. He has further deposed that the deceased died by setting fire herself in his house and he do not know what was the cause for suicide by deceased-Geeta. In the cross-examination, he has stated that, occasionally and during the vacation, he used to visit Ramdurg and used to visit the house of accused to collect rent and at that time, the accused and deceased were leading happy married life and even he had 19 food in their house and he has also visited the house of accused and deceased when they were residing in another rented house.
20. P.Ws.13 to 15 are the neighbours of accused and the deceased.
21. P.W.13 has deposed that his house is at a distance of 30 feet from the house of P.W.12 Jagadeesh, wherein the accused was residing as a tenant and he is acquainted with the accused, who was residing with him. He has further deposed that the deceased committed suicide by setting fire herself. In the cross-examination, he has stated that accused and the deceased were resided in the house of Jagadeesh for a period of six years and at that time, they were leading happy married life and there was no quarrel between them and Geeta was depressed, as she has not begotten children.
22. P.W.14 has deposed that the accused and the deceased were residing in a house which is situated by the side of his house and when he heard the sound of galata, 20 he went to the house of Geeta and at that time accused was trying to put off the fire on Geeta. In the cross- examination, P.W.14 has stated that the deceased and accused were their neighbors and they were living happily and accused had sustained burn injuries to his hand when he tried to put off the fire and he has taken the accused to the hospital and admitted there. He has further deposed that he has told the parents of the Geeta that husband and wife are leading happy life. He has further deposed that the parents of deceased have demanded Rs.2,00,000/- and when refused, they gave complaint.
23. P.W.15 has deposed that his house is also situated near the house of the accused and the deceased and deceased Geeta has committed suicide in her husband's house by setting fire herself. In the cross- examination, he has deposed that in the morning at about 6.00 to 6.30, he had gone to the house of Geeta, at that time, the accused was putting off the fire and at that time he sustained injuries and he has been sent to the hospital 21 and parents of the deceased came at about 8:30 a.m. He has further deposed that accused and deceased Geeta were loving each other and there was no quarrel between them and the parents of Geeta asked Rs.2 lakhs and thereafter they give the complaint.
24. On looking to the evidence of P.Ws.12 to 15, who are the neighbors of the deceased, it is quite clear that the deceased and the accused were leading happy married life and there was no quarrel between them. The deceased and accused have resided in the house of P.W-12 for a period of six years. P.Ws.1 and 6 to 11, who are all resident of Bagalkot, have deposed that the accused used to ill-treat the deceased, as she is not begetting children and asking her to bring money from her parents and the same was told to them by the deceased whenever she visited her parents' house. Therefore, there are two versions i.e. version of P.Ws.1, 6 to 11 and another version of P.Ws.12 to 16. It is well settled law that, if there are two version, the version which is favourable to the 22 accused has to be taken into consideration. The version of P.Ws.12 to 15 is in favour of the accused. Therefore, the same has to be taken into consideration. On looking to the evidence of P.Ws.12 to 15, it is clear that the accused had not ill-treated the accused at any point of time and they are living happily. P.Ws.12 to 15 are residing in the neighboring house of the deceased and the accused, and therefore, their evidence is having more reliability than the evidence of P.Ws.1 and 6 to 11, who are residing in Bagalkot.
25. P.W.1 has received the death intimation of her daughter Geeta at 6:10 a.m. on 26.09.2008 when they were in Bagalkot. P.W.1 has stated that he along with his relatives reached Ramdurg at about 11:30 a.m. and saw the dead body of the deceased Geeta lying in the house with burn injuries. A complaint has been filed at 2:30 p.m. There is a delay in filing the complaint. P.W.1 in his cross- examination has stated that after due discussions with the relatives, who accompanied him, he has filed the 23 complaint. P.Ws.1 and 6 to 11 have denied that they demanded Rs.2 lakhs from the accused and when it was refused, they filed the complaint. P.W.14 has stated in his cross-examination that the parents of deceased Geeta demanded Rs.2 lakhs and when the same was refused, they filed the complaint. P.W.15 has also deposed regarding demand of Rs.2 lakhs by the parents of the deceased. P.W.1 along with his relatives reached the house at 8:30 a.m. as per the evidence of P.W.15. As per P.W.1, they reached at about 11:30 a.m. Even though P.W.1 and his relatives had reached at 11:30 a.m., there is a delay in filing the complaint as it is filed at 2:30 p.m. The explanation offered by P.W.1 is that after discussion with the relatives, he filed the complaint. Therefore, the evidence of P.W.14 regarding the parents of the deceased demanding Rs.2 lakhs and only when it was refused, complaint was filed against the accused. Therefore, the delay has been caused only to implicate the accused. 24
26. In the case of Mangat Ram Vs. State of Haryana, reported in 2014 Crl.L.J. 2425, the Hon'ble Apex Court at paragraph No.20 has observed thus;
"20. We find it difficult to comprehend the reasoning of the High Court that "no prudent man is to commit suicide unless abetted to do so." A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning."
27. In the present case, the deceased Geeta even after more than seven years of marriage did not beget a child. She had been taken for examination to Dr. Metagudda at Belgaum, who told that she has no deficiency and her husband has some deficiency. It appears that as the deceased even after seven and half years of marriage did not beget a child, she might have become depressed and committed suicide. The accused in his explanation under Section 313 statement has stated 25 that, as they have not begotten child, they have consulted a Doctor at Belagavi and the said Doctor told them that there is mistake on the part of the accused and when his wife came to know the same she has committed suicide.
28. The Trial Court has not appreciated the evidence on record properly and erred in holding that the accused has committed the offences under Section 498-A and 306 of IPC. Accordingly, the point is answered and pass the following order.
The appeal is allowed. The judgment of conviction and order of sentence dated 02.08.2011 passed in S.C.No.41/2019 by the V Addl. Sessions Judge, Belgaum, is set aside. The accused is acquitted of the offences punishable under Sections 498-A and 306 of IPC. The bail bond and surety bond stands cancelled. Fine amount, if any, paid by the appellant-accused shall be refunded.
S d /-
J UD GE Kmv & svh