Karnataka High Court
The State Of Karnataka vs Sanju Kumar S/O Vithal Kamble on 9 April, 2013
Author: Huluvadi G.Ramesh
Bench: Huluvadi G Ramesh
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
Dated this the 9th day of April, 2013
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Criminal Appeal 3610 / 2009
Between:
State of Karnataka Appellant
(By Sri S S Aspalli, GP)
And:
1 SanjuKumar, 25 yrs
S/oVithal Kamble
Driver, R/o Itgyal
Taluk Aurad B, Bidar
2 Vithal S/oLalappa Kamble
65 yrs, Agriculturist
R/o Itgyal, Aurad B Tq, Bidar
3 Smt Chandramma W/oVithal Kamble
50 yrs, Coolie, R/o Itgyal, Aurad B Tq
Bidar
4 Smt Muktabai W/oShankar Bhavre
18 yrs, Coolie, R/o Kasab Galli
Aurad B, Bidar Respondents
(By Sri Anil Kumar Navadagi, Adv.)
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Appeal is filed under S.378(1) & (3) of the Criminal Procedure Code
praying to set aside the judgment dated 18.3.2009 in SC 77/2005 by the Prl.
Sessions Judge, Bidar.
Appeal coming on for further hearing this day, the court delivered
the following:-
JUDGMENT
Appeal is by the State challenging the order of acquittal passed by the Prl. Sessions Judge, Bidar in SC 77/2005 on 18.3.2009 for the offence punishable under S.498A and 306 r/w S.34, IPC.
Accused are the husband, father-in-law, mother-in-law and the younger sister of the mother-in-law. The marriage of the deceased Sangeeta has taken place with the accused about two years prior to the alleged incident. The deceased - daughter of the complainant was given in marriage to the accused who is a resident of Itgyal, Aurad Taluk.
As per the prosecution, Sangeeta lived happy life for about six months after marriage. Thereafter, accused 1 to 4 stating that she is a lady of ill-luck and bad omen, and does not know household work and cooking, used to express that she should go and die. Thus, they have subjected her to physical and mental harassment. It also appears on 13.1.2005, the 3 deceased had prepared a sweet dish and kept it separately for her husband, accused 1 to 4 have seriously objected to the same on 14.1.2005 and picked up a quarrel as to why she should keep it aside separately and also abused her as such, she was mentally harassed. On the very same day, as it became unbearable for her, she is said to have committed suicide at about 2.00 p.m. by hanging herself.
On the basis of the complaint filed by the father of the deceased, after investigation, police filed a charge sheet against accused 1-4 although the complaint was against seven persons including the sister-in-law of the deceased and her husband. The complainant had four children -three daughters and a son and is a resident of Naganpalli. The second daughter Sangeeta was given in marriage to the 1st accused. According to the complainant, Sangeeta was being looked after very well for sometime. Both the 1st accused and Sangeeta were living happy life. In his complaint, it is stated that there was also harassment meted out by the husband, in laws and other sister in law and her husband that she is a woman of ill-luck and does not know household work and cooking as such, expressed to her to go and die and the deceased is said to have complained of the same when she went 4 to her parents house for Deepavali festival and had also requested them to advise the accused. In this regard, complainant and his wife and one more person went and advised the accused and also other members of his family. The deceased is also said to have informed her friend Sharamma about the ill-treatment meted out to her and that if the same ill-treatment is continued, she would commit suicide. Even on the previous new moon day prior to the filing of the complaint, when the complainant went and requested the accused to send his daughter, both the in-laws i.e., father in law and mother in law did not agree as such, after pacifying his daughter, he came back and subsequently he was informed on the date of the incident i.e., on 14.1.2005 by one Channappa about his daughter committing suicide by hanging. He went to Itgyal along with some other villagers and his family members.
After investigation, police have filed charge sheet against accused 1 to 4 and charges were framed. Since the accused pleaded not guilty and claimed to be tried, prosecution examined in all, about eighteen witnesses and got marked about fourteen documents. The evidence of the defense is nil. Thereafter, accused were examined under S.313, Cr.PC and their defense was total denial. Learned Sessions Judge taking into consideration 5 the over all evidence on record, has opined that there is delay in lodging the complaint and whatever the deceased complained of before her parents is only some problems which everyone would face and that would be disclosed either before the mother or the father. The mother of the deceased has not been examined, the father also has not convened any panchayath regarding alleged ill-treatment and even PW 9 an independent witness has stated that she has not advised the accused to look after the deceased properly. Even when the mother was present when the Taluk Executive Magistrate was conducting inquest and though the prosecution has cited the mother as a witness, she has not been examined. Even taking the evidence of PWs 1, 9, 11, 13, 14 and also noting that PW 15 being a Police Officer could not have waited to register UDR although it was an unnatural death and his conduct speaks that there is no harassment and pointed out the lapses on the part of the Police Officer that though he overstayed in the night on the date of the incident, he did not make an attempt to file the complaint or to register the same. Although it has been opined that all the witnesses have spoken about consistent harassment meted out to Sangeeta by way of physical and mental torture, stating that complaint did not convene any meeting or made an attempt to give a 6 complaint in this regard also, that the 4th accused is the sister of the 3rd accused and she is married and staying at Aurad and why her participation was there in subjecting the deceased to cruelty has not been explained and thus expressing doubt on the prosecution story, stating that there are doubtful circumstances which goes in favour of the accused, accordingly acquitted the accused. Being aggrieved by the said order of acquittal, this appeal by the State on the ground that although there is positive evidence on record that of PWs 1, 9, 11 12 and 14 and PWs 9,11 and 14 - independent witnesses supported the case of the prosecution regarding physical and mental ill-treatment to the deceased, accused have been acquitted by the Sessions Judge without taking into consideration the positive evidence on record, only on flimsy grounds and minor contradictions and assumptions and presumptions. There is cogent evidence on record for the offence under S.498A and 306, IPC. The deceased died within seven years of her marriage due to ill-treatment meted out to her in the matrimonial house. Thus, it is the submission of the counsel representing the State to allow the appeal and to convict and sentence the accused.
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Counsel representing the accused submitted, accused have been rightly acquitted by the Sessions Court. The accused and deceased were living happy life. Some family altercations with the deceased that she does not know household work and cooking are common expressions and does not amount to an offence like cruelty and does not attract S.498A, IPC much less the expression 'to go and die' would not amount to abetment to commit suicide. Accordingly, counsel has relied upon the decision of this Court in the case of State of Karnataka Vs Yellappa Vishwanathasa Magazikondi & Ors - 2001(3) KCCR 2011 to stand by the above said conduct of the accused and the expressions used and to contend that as rightly observed by the trial court, complainant did not make any attempt to get the accused advised by convening panchayat and whatever he stated for not convening the meeting and the explanation offered by him is only an afterthought and when the 4th accused is a resident of Aurad, there was no need for her presence and submitted that the 1st accused was affectionate with the deceased and deceased was taking care of the accused. Each and every small abuse cannot be treated as ill-treatment. Rightly extending the benefit of doubt, accused has been acquitted which does not call for interference. Accordingly, counsel has sought for dismissing the appeal. 8
In the light of the arguments advanced, the points that arise for consideration are -
Whether the prosecution is able to prove that the deceased was subjected to physical and mental cruelty to attract offence under S.498A, IPC; Whether the prosecution has been able to prove beyond reasonable doubt that there is abetment to commit suicide as such, deceased committed suicide being unable to tolerate the ill-treatment;
Whether the trial court is justified in acquitting the accused for the above said offences;
What order S.498A, IPC has two ingredients - one with respect to subjecting a woman to cruelty by the husband or relatives of the husband. Cruelty has been defined as a willful conduct of such a nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life. Such cruelty would be either mentally or physically. The second aspect is with respect to harassment with a view to meet any unlawful demand for dowry or property or valuables.
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In the case on hand, there is no unlawful demand/harassment meted out for dowry or asking for any property. It is a straight case of ill-treating the deceased while she was living in the matrimonial house expressing that she is a woman of ill-luck and also she does not know household work and cooking. Whether this evidence on record by several witnesses viz., complainant - father of the deceased, friend of the deceased and other independent witnesses would amount to cruelty within the meaning of S.498A and also whether it amounts to abetment to commit suicide has to be seen. Time and again this Court and the Apex Court has repeatedly stated in several cases that in common parlance especially in the villages, if any expressions are made that she is a woman of ill-luck and she does not know household work and cooking, it could not be treated as words so as to commit abetment to commit suicide or treating a woman with mental and physical torture. Of course, in the complaint what is noted as per the prosecution story is, on the day of the incident when the deceased had prepared a sweet dish and had kept it separately for her husband, her in- laws viz., father in law, mother in law and sister of the mother in law took objection and exception as to why she has kept it separately and abused her 10 as such, being unable to tolerate such insult and abuse, she went and committed suicide by hanging.
Even the evidence on record of PW 1 - father of the deceased is as is stated in the prosecution story and also PW 9 Sharamma - friend of the deceased, an independent witness is to the effect the deceased used to complain of ill-treatment meted out to her. All the witnesses are circumstantial witnesses and there is no evidence by way of direct evidence of the victim either by way of a dying declaration or any statement recorded at any time. What is being complained by the deceased before her father PW 1 and PW 9 and 11 whenever she came to her father's house is, she was ill-treated by her in-laws. What is specifically noticed in the inquest by PW 10 i.e., statement of the mother recorded is, they have celebrated the marriage of the deceased with the 1st accused and of late the mother in law of the deceased Sangeeta by name Chandramma, her husband and Muktabai sister of the 3rd accused and also the 1st accused used to express that she is a woman of ill-luck and she does not know household work and cooking and she does not talk to family members properly. The statement of one Hanmanth is also recorded and he has stated, on the date of the incident i.e., 11 on 14.1.2005 when the deceased along with her sister-in-law by name Savitra had been to wash clothes near the well of Hanmanth and when he saw the deceased weeping, he inquired as to why she is weeping and she told him that she had prepared a sweet dish for her husband and since morning her in-laws viz., mother in law, father in law and others have raised a quarrel and were abusing her for which this Hanmanth is said to have pacified her and that he would go and tell the accused 2-4. Later when he returned from the field, he learnt that deceased had committed suicide by hanging herself in the house of the accused. What is being stated by PW 9 who is said to be an independent witness is, Sangeetha died after 1 ½ years of her marriage and that for the six months after marriage, both 1st accused and Sangeetha were in cordial terms and Sangeetha preparing a sweet dish for him also shows that they were in cordial terms. What is noted in the evidence of this witness is, all the accused were living together but she has stated all the four accused started ill-treating and abusing the deceased in filthy language stating that Sangeetha was not beautiful and did not know household work and asked Sangeetha to go and die and that Sangeetha told this to Sharavva when she visited her parents house twice and she also expressed that she was feeling like committing 12 suicide. Might be that she would have developed suicidal tendency because of the attitude of the accused and also Sangeeta had complained of ill-treatment to her parents and she was three months pregnant at the time she committed suicide. She learnt from one Channappa that Sangeetha committed suicide on that day and she along with 5 to 6 persons went to the village and saw the dead body of Sangeeta in hanging position and accused were not present at that time. In the cross-examination, of course Sharavva has admitted that Sangeeta was rather quite fair and she also knew household work and even the 1st accused used to come to the village of the complainant and that he is a Driver and she has not advised the 1st accused at any time. To a suggestion to this witness that accused have demanded Rs.1 lakh and there is delay in filing the complaint, Sharavva has denied.
The evidence of PW 11 - Tejamma a relative of the deceased i.e., aunt is, the deceased used to complain of ill-treatment expressing that she does not know household work and cooking and that she is a woman of ill- luck. Of course, it is stated that the deceased was looked after well in the beginning and later whenever the deceased used to visit her parents house, she used to complain of ill-treatment. She has also stated that herself, her 13 husband, the complainant and the mother of the deceased all went and advised the accused to take care of the deceased properly. Despite that, accused were not looking after her properly. In the cross-examination, of course she has admitted that although the 1st accused used to visit his in- laws house, but she has not advised him regarding the allegations made against him.
PW 12 - Channappa in his evidence has deposed that he has intimated the parents of the deceased about the deceased having committed suicide in her matrimonial house and he has seen the dead body in a hanging position. He has also spoken about the accused not present when he went to the village of the accused to see the dead body. Also what is stated in his cross-examination is that even of late till the death of the deceased, 1st accused used to visit the village of the complainant and he has not met him. The evidence of other witnesses viz., PW 13 who is also the relative of the deceased is similar as that of other witnesses regarding death of Sangeeta and the treatment meted out to her. PW 14 who is the uncle of the deceased, in his cross-examination has stated that Sangeeta was a fair girl and 1st accused was working as a Driver and visited the village of the 14 complainant and he had good relation with him. They did not hold any panchayath on coming to know of the ill-treatment meted out to her by the accused.
The evidence on record of course, regarding harassment meted out to the deceased is as stated by the independent witness Sharavva that the deceased used to complain of the ill-treatment meted out to her by the accused. One person by name - Hanmanth in his evidence has stated that he told the deceased not to cry and that he would advise the accused. That witness has not been examined and non-examination of the mother is also material. The fact remains that deceased would have been sensitive to such abuse. In a village atmosphere expressions like 'does not know household work and cooking' and a 'woman of ill-luck' will not be of much consequence to treat it as ill-treatment and harassment. But nonetheless, the mentality and sensitivity of a woman differs from each one. May be the incident of deceased preparing a sweet dish and keeping it aside or separately for her husband and the consequential abuse by the in-laws would have acted as a trigger. But, even prior to that, there were occasions when the parents of the deceased had been to the village of the accused and 15 advised them to take care of their daughter and not to ill-treat her. The allegation against accused 1-4 is more like an omnibus statement. The very conduct of 1st accused shows that he has not specifically taken any exception to blame her or ill-treat her and even his conduct, as is being elicited in the cross-examination of the witnesses, shows that he was visiting the house of the complainant of late till the death of the deceased and that he was not involved in the ill-treatment of the accused. But the conduct of the 2nd accused / father in law and accused 3 / mother in law and also accused 3 / sister of the mother in law that they used to behave as is stated in the evidence of all the witnesses of the prosecution depicts they have ill-treated the deceased. In that view of the matter, definitely there is a case made out against accused 2 to 4 for having abetted to commit suicide. Might be the deceased was sensitive and unable to tolerate such expressions, she went and hanged herself in the house of the accused. However, as per the decision of the Apex Court and this Court in several cases, mere expressions and abuse in common parlance in a village atmosphere, as is iterated in the case on hand will not become harassment to treat it as abetment to commit suicide but definitely there is mental cruelty and torture meted out by accused 2 to 4 against the deceased. In 16 that view of the matter, the prosecution is able to prove the case against accused 2 to 4 beyond reasonable doubt that they have committed an offence punishable under S.498A, IPC . At the cost of repetition I may say, the conduct of the accused in using such expressions might have been taken seriously by the deceased and she being a sensitive woman would have taken the extreme step of committing suicide by hanging. As such, it may not be a case to hold the accused guilty of commission of offence of hanging i.e., committing suicide (S.306, IPC) but definitely there is a case against accused 2 to 4 for the offence under S.498A, IPC.
The reasoning given by the trial court that there is lapse on the investigating officer in registering the FIR cannot be made much of in view of the fact that it is unlike a case of murder or any other offence which needs to be registered immediately to avoid implications. Just because the complaint is being filed on the next day of the alleged incident it cannot be said that there is inordinate delay having regard to the nature of offence involved. Apart from that, so far as the examination of the mother of the deceased is concerned, her evidence is as that of PW 1 complainant as such, her non-examination cannot be treated as fatal to the prosecution. Thus, the 17 total reasoning of the trial court in acquitting the accused appears to be not justified having regard to the material evidence on record - that of the independent witnesses and the witnesses of the relatives of the deceased. The explanation offered by PW 1 in the course of deposing before the Court cannot be treated as an improvement with regard to not convening a panchayat that it is a family matter and everything would be set right in course of time and that conduct cannot be treated as not disclosing the information before others as an unnatural conduct.
Based on the overall evidence on record, while setting aside the order of acquittal passed by the trial court, while acquitting accused 1-4 for the offence punishable under S.306, IPC, accused 2-4 have been held guilty of the offence punishable under S.498A IPC and accordingly, they have been sentenced to undergo rigorous imprisonment for 1 ½ years and to pay fine of Rs.2,000/- each and default sentence of two months simple imprisonment. The accused 2-4 are entitled for the benefit of set off under S.428, IPC for the period of detention already undergone during investigation and trial.
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Appeal is allowed in part.
Sd/-
Judge An