Karnataka High Court
The State Of Karnataka vs Rasulbag @ Najeem on 11 April, 2022
Author: B.Veerappa
Bench: B.Veerappa
-1-
CRL.A No. 800 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO. 800 OF 2015
BETWEEN:
1. THE STATE OF KARNATAKA,
REPRESENTED BY HOLALKERE,
POLICE STATION-577 526.
...APPELLANT
(BY SRI. K. NAGESHWARAPPA, HCGP)
AND:
1. RASULBAG @ NAJEEM,
S/O IDRESBEG,
AGED ABOUT 29 YEARS,
OCC: CONTRACTOR WORK,
R/O SIDDRAMAPPA BADAVANE,
1ST CROSS, HOLALKERE TOWN-577 526.
2. IDRESBE @ SHAFISAB,
S/O GAFARBEG,
Digitally signed by AGED ABOUT 62 YEARS,
USHA
NAGENAHALLI
OCC: AGRICULTURE & CONTRACTOR WORK,
SHANMUKHAPPA R/O SIDDRAMAPPA BADAVANE,
Location: High
Court of Karnataka
1ST CROSS, HOLALKERE TOWN 577 526.
3. FATHIMA UNNISA @ JAREENA ,
W/O IDESBEG,
-2-
CRL.A No. 800 of 2015
AGED ABOUT 44 YEARS,
OCC: HOUSEHOLD WORK,
R/O SIDDRAMAPPA BADAVANE,
1ST CROSS, HOLALKERE TOWN-577 526.
4. AYEESHA SIDDEKA,
W/O NASEERBEG,
AGED ABOUT 25 YEARS,
OCC HOUSEHOLD WORK,
R/O IDGA MOHALLA,
MEDEHALLI ROAD,
CHITRADURGA TOWN-577 501.
...RESPONDENTS
(BY SRI H.M. NEEMATHULLA, ADVOCATE FOR R1 TO R4)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF CODE OF CRIMINAL PROCEDURE PRAYING
TO
(a) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 20.10.2014 PASSED
BY THE ADDL. DIST. & SESSIONS JUDGE, CHITRADURGA
IN S.C.NO.4/2013 ACQUITTING THE RESPONDENTS -
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 498-A,304-B, 302 READ WITH SECTIONS 34
OF IPC AND SECTIONS 3, 4 & 6 OF D.P. ACT;
(b) SET-ASIDE THE ORDER OF ACQUITTAL DATED
20.10.2014 PASSED BY THE ADDL. DIST. & SESSIONS
JUDGE, CHITRADURGA IN S.C.NO.4/2013 ACQUITTING
THE RESPONDENTS - ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 498-A,304-B, 302 READ
WITH SECTION 34 OF IPC AND SECTIONS 3, 4 & 6 OF
D.P. ACT AND ;
(c) CONVICT AND SENTENCE THE RESPONDENT-
ACCUSED NO.1 TO 4 FOR THE PUNISHABLE UNDER
SECTIONS 498-A, 304-B, 302 READ WITH SECTION 34
-3-
CRL.A No. 800 of 2015
OF IPC AND SECTIONS 3, 4 & 6 OF D.P. ACT, IN
ACCORDANCE WITH LAW.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed the present criminal appeal against the impugned judgment and order of acquittal dated 20th October, 2014 acquitting accused Nos.1 to 4 for the offences punishable under Sections 498A, 304B, 302 r/w 34 of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act.
2. It is the case of the prosecution that the marriage between the accused No.1 and deceased Surayya Banu,(the deceased) - the younger sister of P.W.1, was solemnised on 26.2.2012 in the house of accused Nos.1 to 3 situated at Holalkere Town. Accused Nos.1 to 4 being husband, in-laws of Surayya Banu caused physical and mental torture insisting the deceased to bring money from her parental house as dowry after 1 ½ months from the date of marriage. Accused No.1 received Rupees Four Lakhs, then Rupees Eighty Thousand from C.W.3-father of the deceased Surayya Banu and was often -4- CRL.A No. 800 of 2015 insisting her to bring additional dowry from her parental house. On 24.5.2012 at 6.00 p.m. in the house of accused Nos.1 to 3 situated at Holalkere, accused Nos.1 to 4 with common intention tortured and forcibly made Surayya Banu w/o accused No.1 to consume insecticide (poison) and thereby caused her death. P.W.1, who is none other than the brother of the deceased, lodged a complaint Ex.P.4 before the jurisdictional police, who registered a case in crime No.233/2012 for the offences punishable under Sections 498A, 304B and 307 of IPC at the first inception and after her death, Section 302 of IPC and Sections 3 and 4 of the Dowry Prohibition Act were included. After completion of the investigation, charge sheet was filed by the investigating officer against the accused for the aforesaid offences.
3. After taking cognizance of the offences, the learned Magistrate committed the case to the Court of Sessions and the learned Sessions Judge after securing the presence of the accused, framed charges against the accused which was read over to them in the language known to them, who pleaded not guilty and claimed to be tried.
-5-CRL.A No. 800 of 2015
4. In order to prove its case, the prosecution in all examined 19 witnesses P.Ws.1 to 19, got marked the documents Exs.P.1 to 19 and material objects M.O.Nos.1 to 22. After completion of the evidence of the prosecution witnesses, voluntary statements of the accused as contemplated under the provisions of Section 313 of Cr.P.C were recorded. The accused denied all the incriminating circumstances appearing against them and examined two witnesses - D.Ws.1 to 2 and got marked the documents - Exs.P.1 to 8 on behalf of their defence.
5. Based on the aforesaid pleadings, the learned Sessions judge framed three points for consideration and after considering both oral and documentary evidence on record, answered all the points in the negative holding that, the prosecution has failed to established its case beyond reasonable doubt that subsequent to 26.2.2012, the date of solemnization of marriage of accused No.1 and Surayya Banu - the younger sister of P.W.1, in the house of accused Nos.1 to 3 situated at Holalkere Town, accused Nos.1 to 4, being husband and in-laws of Surayya Banu caused physical and mental torture by insisting her often and often to bring additional dowry from her -6- CRL.A No. 800 of 2015 parental house though accused No.1 received a sum of Rupees Four Lakhs, Rupees Eighty Thousand from C.W.3-father of Surayya Banu after one and a half months from the date of marriage and thereby committed an offence punishable under Section 498A r/w 34 of IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act. Further it has failed to prove beyond reasonable doubt that on 24.5.2012 at 6.00 p.m. in the house of accused Nos.1 to 3 situated at Holalkere, accused with common intention tortured, forcibly made Surayya Banu W/o accused No.1 to consume insecticide (Poison), thereby caused her death and committed an offence punishable under Section 304B, 302 r/w 34 of IPC. Accordingly, by the impugned judgment and order, acquitted all the accused for the aforesaid offences punishable under Sections 498A, 304B and 302 r/w 34 of IPC., and Sections 3, 4 and 6 of the Dowry Prohibition Act. Hence, the present appeal by the State.
6. We have heard the learned Counsel for the parties.
7. Sri K. Nageshwarappa, learned High Court Government Pleader appearing for the State contended with vehemence that the impugned judgment and order of acquittal -7- CRL.A No. 800 of 2015 passed by the trial Court acquitting all the accused is erroneous and contrary to the material on record which cannot be sustained in law and as such, is liable to be set aside. He would further contend that the trial Court without properly analysing and scrutinizing the evidence of P.Ws.1 to 3, 5 and 6, who are material witnesses to the cases of the prosecution, has acquitting the accused persons, which is impermissible. Further the trial Court has failed to appreciate the material fact that the death of the deceased had taken place in the matrimonial house under suspicious circumstances by consuming insecticide (poison) and it was the duty of husband to protect his wife. He would further contend that the trial Court has failed to take into consideration the fact that the death of the deceased had taken placed within 7 years from the date of marriage and as such, a presumption under Section 113-A of the Indian Evidence Act, 1872 has to be drawn against the accused attracting the provisions of Section 498A of IPC that such suicide had been abetted by her husband or in- laws. He would further contend that when accused Nos.1 to 4 were residing together had forced the deceased to consume pesticide as there was constant torture and cruelty meted out -8- CRL.A No. 800 of 2015 to the deceased by the accused demanding further dowry and thereby, the impugned judgment and order of acquittal passed by the trial Court is not just and proper and cannot be sustained. Therefore, he sought to allow the criminal appeal.
8. Per contra, Sri H.M. Neemathulla, learned Counsel for accused Nos.1 to 4 while justifying the impugned judgment and order of acquittal passed by the trial Court contended that the trial Court considering the entire material on record has rightly come to the conclusion that the prosecution has failed to prove beyond reasonable doubt that on 26.2.2012, the marriage between accused No.1 and Surayya Banu - the younger sister of P.W.1 was solemnised in the house of accused Nos.1 to 3 situated at Holalkere Town. Accused Nos.1 to 4, being the husband and in-laws of Surayya Banu caused physical and mental torture by insisting to bring additional dowry from her parental house though accused after one and a half months from the date of marriage, received a sum of Rupees Four Lakhs, Rupees Eighty Thousand from C.W.3-father of Surayya Banu, then often and often insisted Surayya Banu to bring more money from her parents house.
-9-CRL.A No. 800 of 2015
9. The learned Counsel for the accused further contend that the prosecution has failed to prove that on 24.5.2012 at 6.00 p.m. in the house of accused Nos.1 to 3 situated at Holalkere, accused with common intention tortured and forcibly made Surayya Banu W/o accused No.1 to consume insecticide (Poison), thereby the provisions of Sections 304B, 302 r/w 34 of IPC . Accordingly, by the impugned judgment and order, acquitted all the accused for the aforesaid offences punishable under Sections 498A, 304B, 302 r/w 34 of IPC., and Sections 3, 4 and 6 of the Dowry Prohibition Act.
10.The learned Counsel for the accused further contended that the learned Sessions Judge considering both oral and documentary evidence on record has come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt that the accused had committed the death of the deceased.From the beginning,the deceased was not interested to lead the marital life as she was attached to her parental house and as she was unable to bear the same, she consumed pesticide by herself when accused No.1 was in the field.He would further contend that the trial Court has rightly acquitted the accused and the scope of appeal by the State
- 10 -
CRL.A No. 800 of 2015 under the provisions of Section 379(1) and (3) of Cr.P.C., is very limited. Therefore, he sought to dismiss the criminal appeal filed by the State.
11. In view of the rival contentions urged by the learned Counsel for the parties, the points that would arise for our consideration in the present criminal appeal are:
"1. Whether the State has made out a case to interfere with the impugned judgment and order of acquittal passed by the trial Court acquitting the accused for the offence punishable under Sections 498A, 304B, 302 r/w 34 of IPC? and
2. Whether the State has made out a case to modify the offences and convict accused No.1 under the provisions of Sections 498A and 306 of IPC in the facts and circumstances of the present case?
12. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material including the original records.
- 11 -
CRL.A No. 800 of 2015
13. This Court being the Appellate Court, in order to re- appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and material documents relied upon:
i) P.W.1 - Sri Irshad Ali, brother of the deceased and complainant has deposed regarding payment of dowry to the accused and receipt of the same by the accused and demand of additional dowry, cruelty, harassment and also the injuries found on the dead body of the deceased for which accused are responsible for death of the deceased. He has also identified the accused before the Court. He has supported the case of the prosecution;
ii) P.W.2 - Smt. Abedabi, mother of the deceased has deposed on par with P.W.1 and has supported the case of the prosecution;
iii) P.W.3. Reshmabanu - Sister of the deceased has deposed with regard to payment of dowry to the accused and receipt of the same by the accused.
She has further deposed that the accused was
- 12 -
CRL.A No. 800 of 2015 demanding additional dowry, regarding cruelty and harassment meted to the deceased by him. She noticed the injuries on the dead body of the deceased. She categorically deposed that it was the accused, who were responsible for the death of the deceased and supported the case of the prosecution;
iv) P.W.4 - Sri Syyed Musabeer, witness to inquest mahazar - Ex.P.13 has turned hostile to the case of the prosecution.
v) P.W.5 - Sri Ayub Ali, brother of the deceased has deposed about the payment of additional dowry and receipt of the same by the accused, physical and mental harassment meted out to the deceased by the accused. He supports the case of the prosecution.
vi) P.W.6 - Sri Rehaman Sharif, maternal uncle of the deceased has spoken about the demand and acceptance of dowry by the accused and seeing the
- 13 -
CRL.A No. 800 of 2015 dead body in hospital and the injuries on the dead body. He supported the case of the prosecution;
vii) P.W.7 Syyed Khaleel - Head of the Community has deposed that he was present at the time of marriage talks, demand and acceptance of dowry by the accused and also about the physical and mental harassment given by the accused to the deceased and supported the case of prosecution;
viii) P.W.8 - Smt. Saroja B.B., Tahsildar, has deposed that she conducted the inquest mahazar as per Ex.P.13 and supported the case of the prosecution;
ix) P.W.9 - Sri Shekharappa, Attender of Sajjan Hospital has deposed the presence of accused Nos.1 to 3 in the ambulance while shifting the deceased to Chitradurga District Hospital for further treatment;
x) P.W.10 - Sri Fairoz Khan, witness to the spot panchanama Ex.P.7 has supported the case of the prosecution;
- 14 -
CRL.A No. 800 of 2015
xi) P.W.11 - Dr. Ravikumar, who conducted the postmortem on the dead body of the deceased has given his report as per Ex.P.22 and Regional Forensic Science Laboratory report Ex.P.23 and that the death of the deceased was homicidal in nature and opined that the death might have been as a chance of administering poison forcefully and has supported the prosecution case;
xii) P.W.12 - Smt. Saherabanu, tenant under accused No.2 has turned hostile to the prosecution case;
xiii) P.W.13 - Sri Zakeer Husain, witness to seizure mahazar Ex.P.8 for seizing the material objects M.Os.1 to 19 has turned hostile to the prosecution case. He has admitted the seizure but denied the production of gold ornaments;
xiv) P.W.14 - Sri Shrikanth, Bank Manager, State Bank of India, Harihara has deposed about the bank account of the father of the deceased and the
- 15 -
CRL.A No. 800 of 2015 extract of the statement as per Ex.P.21 and has supported the prosecution case;
xv) P.W.15 - Dr. Nagappa, who treated the deceased at the first instance at Holalkere has deposed that as per Ex.P.26, the case sheet, he gave first aid treatment to the deceased and referred her to Chitradurga District Hospital for further treatment. He supported the prosecution case;
xvi) P.W.16 - Sri T. Manjanna, PSI, who registered the case in the early morning at 3.30 a.m. has deposed that he sent the FIR, Ex.P.27 to the learned Magistrate and supported the case of the prosecution;
xvii) P.W.17 - Sri Gangaiah, Dy.S.P., has deposed that he went to the place of incident, drew the mahazars, recorded the statements of the accused, seized the marriage invitation and conducted the investigation and filed the charge sheet;
- 16 -
CRL.A No. 800 of 2015 xviii) P.W.18 - Sri Thejas Chowdari, Manager of O.M.Jewelry has deposed about the gold neck chain purchased from his shop by C.W.3 and issuing of receipt Ex.P.28 worth Rupees Seventy Six Thousand Nine Hundred only and supported the prosecution case;
xix) P.W.19 - Sri Suban Sab, Vice President of Jamayed, has deposed about he writing the document Ex.P. 19 regarding payment of dowry to accused and accused No.2 putting his signature on the said document as per Ex.P.19 - Dahez report and supported the prosecution case;
xx) D.W.1 - Sri Rangaswamy, Driver of Ambulance has deposed about his presence at the time of treatment given to the deceased and supported the prosecution case;
xxi) D.W.2 - Sri Sayyed Mehaboob - has spoken about his presence at the time of marriage talks, clothes given to accused Nos.1 to 3 were given clothes, ornaments and mehar to the bride and he speaking
- 17 -
CRL.A No. 800 of 2015 to the deceased in the hospital. He has supported the prosecution case.
14. The learned Sessions Judge considering both oral and documentary evidence on record by the impugned judgment and order acquitted the accused persons.
15. The gist of the case of the prosecution is that father of the deceased had five children, out of whom 2 are males, three are females and the deceased Surayya Banu was the fifth child. The remaining members were already married and her marriage took place on 26th February, 2012.
16. As the marriage between the accused No.1 and deceased was solemnised on 26.2.2012 and the unfortunate incident occurred on 24.5.2012 within 7 years from the date of the marriage, a presumption has to be drawn under Section 113A of the Indian Evidence Act which reads as under:
"Section 113A - Presumption as to abetment of suicide by a married woman.--
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it
- 18 -CRL.A No. 800 of 2015
is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.--For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code."
17. On careful reading of the said provision makes it clear that to attract the applicability of Section 113A of the evidence Act, the following three conditions require to be fulfilled:
(i) Woman has committed suicide,
(ii) Such suicide has been committed within a period
of seven years from the date of her marriage,
(iii) The husband or his relatives, who are charged had subjected her to cruelty.
- 19 -
CRL.A No. 800 of 2015
18. From the facts and circumstances of the present case, all three conditions stated supra stand fulfilled. There is no dispute about the fact that the deceased committed suicide within a period of seven years from the date of her marriage. It is the specific case of the prosecution that there was constant demand for additional dowry by accused No.1 and P.W.1 had paid a sum of Rupees Four Lakhs and Eighty Thousand before her death and nothing has been elicited in the cross- examination of P.Ws.1, 2, 3, 5 and 6 to disbelieve the prosecution case. Infact accused Nos.1 and 2 have filed separate statements under the provisions of Section 313(5) of Cr.P.C. and have taken the defence that the deceased was insisting accused No.1 to make separate residence and she was not able to live away from her parental house and in order to threaten the accused, she consumed the pesticide. On the date of the incident, accused No.1 was not in the house and was in the field. Accused Nos.2 and 3 though were in the house, did not notice the deceased and only when accused No.1 had come to the house, they noticed that she had consumed poison and was restless. Thereafter, she was shifted to the hospital by accused No.1-husband and her in-laws. The evidence of
- 20 -
CRL.A No. 800 of 2015 P.Ws.1, 2, 3, 5 and 6 and statement of accused Nos.1 and 2 under Section 313 Cr.P.C., clearly depicts that the deceased had consumed pesticide (poison) within 7 years from the date of marriage. Though accused Nos.1 and 2 specifically have taken a plea of alibi, that the deceased was threatening them that she would commit suicide, if accused No.1 refused to make a separate house and as he had not fulfilled her wish, in order to threaten, she consumed poison. The Dr. Ravikumar-P.W.11
- Medical Officer at General Hospital, Holalkere, who examined the deceased at the inception found the following injuries:-
1. Contusion over left arm 5 cms X 3 cms., ante mortem in nature blackish in colour;
2. Abrasion over left dorsum of hand ½ X ¼ cms;
3. Old wound scar over center of chest.
Rigor mortise present all the four limbs. He has deposed that on considering the ante mortem injuries during examination of the dead body, he opined that the cause
- 21 -
CRL.A No. 800 of 2015 of death might have been due to chance of administering poison forcefully. If there was a self consumption of pesticides, then there might not have been chances of seeing external injuries. When there is self consumption of pesticides it gives a severe burning sensation on throat and the person consumes forcefully, rubs on the neck portion without tolerating such burning sensation. He could not find any injury or forceful rubbed mark on the front of neck. Nothing has been elicited in his cross-examination to disbelieve his evidence. He further deposed in his cross-examination that he found the presence of Phospine Chemical which was in cockroach pesticide and bedbug pesticide. He has denied the suggestion that he had given a false and concocted postmortem report at the behest of investigating officer and is deposing falsely in the case.
19. P.W.15 - Dr. Nagappa Sajjan, Private Medical Practitioner, who treated the deceased at the first instance in a private hospital at Holalkere has deposed that he did not find wounds on the body and as such, he had not mentioned the presence or absence of wounds in Ex.P.26. He further deposed that Holalkere Police Station is about 3 to 4 furlongs away from his hospital. If any person is admitted to his hospital with a
- 22 -
CRL.A No. 800 of 2015 history of consumption or administering poison or in any MLC cases, immediately, he would intimate to the concerned police, but in the present case, since the condition of the patient was very serious and critical, he was busy in giving first aid treatment and sending the patient to Chitradurga for higher treatment. Therefore, he could not intimate the same Police even after the death of the deceased and there was no impediment for him to intimate to the police.
20. In the statement recorded under Section 313 of the Code of Criminal Procedure, the accused No.1 has taken a plea that the deceased used to threaten him that she would commit suicide if he do not make a separate house, and has taken a specific plea of alibi that he was not in the house at the time of the incident, the fact remains that he has not produced any material documents to prove the same. Once the prosecution discharged the initial burden, it is the duty of the accused to prove the plea of alibi, in view of Section 103 of the Indian Evidence Act. But the same is not done. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of State of Haryana vs. Sher Singh and others reported in
- 23 -
CRL.A No. 800 of 2015 AIR 1981 SC 1021, wherein at paragraph 4 it is held as under:
"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:
"103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
21. In the statement recorded under Section 313 of the Code of Criminal Procedure, accused No.1 except denying all the incriminating circumstances adduced against him in toto, has not offered any explanation and thereby, adverse inference has to be drawn against accused No.1. Our view is fortified by the dictum Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported (2020)1 SCC Crimes 381, wherein, at paragraph 11, it is held as under:
11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim.
- 24 -
CRL.A No. 800 of 2015 Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.
22. The material on record clearly depicts that accused No.1 treated the deceased with cruelty and has abetted her to commit suicide. Thereby, deceased took the extreme step of consuming poison on account of the torture meted out to her by accused No.1. Credible and trust worthy evidence of the prosecution witnesses has been corroborated with each other and the demand for dowry and cruelty faced by the deceased has been proved. The testimony of the prosecution witnesses is unshaken in the cross-examination. The accused No.1 married the deceased on 26.02.2012 and the unfortunate incident occurred on 24.05.2012, i.e., within three months of the marriage. Thereby, the prosecution has proved that the accused No.1 has committed offences punishable under Sections 306 and 498A of the Indian Penal Code. Our view is fortified by the dictum Hon'ble Supreme Court in the case of Gumansinh alias Lalo alias Raju Bhikhabhai Chauhan and
- 25 -
CRL.A No. 800 of 2015 Another Vs. State of Gujarat reported AIR 2021 SC 4174, wherein, at paragraphs 27, 28, 29, 30, 32 and 45, it is held as under:
"27. Now, the question that falls for our consideration is the prosecution having successfully established the charge of cruelty as laid down in Explanation (b) of Section 498-A IPC and also the fact that the deceased committed suicide by consuming pesticide within seven years of marriage, whether the accused can also be held guilty for the offence punishable under Section 306 IPC with the aid of Section 113 A of the Evidence Act.
28. In the case at hands, the prosecution failed to adduce any direct evidence to establish that the accused abetted deceased into committing suicide. The prosecution has placed reliance on Section 113-A of the Evidence Act to establish the charge of abetment against the accused.
29. Section 107 of IPC describes offence of abetment as under:-
"Section 107 of IPC- 107. Abetment of a thing.--A person abets the doing of a thing, who-- (First) -- Instigates any person to do that thing; or (Secondly)
- 26 -CRL.A No. 800 of 2015
--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) -- Intentionally aids, by any act or illegal omission, the doing of that thing."
Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.
30. Section 306 of IPC provides punishment for the offence of abetment of suicide, reads as under:-
- 27 -CRL.A No. 800 of 2015
"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
32. From the above observations, it becomes clear that to attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled :-
i. The woman has committed
suicide,
ii. Such suicide has been committed
within a period of seven years
from the date of her marriage,
iii. The charged-accused had
subjected her to cruelty.
45. The testimony of this witness was unshaken during cross-examination and nothing contrary could be elicited from him, and thus we find no fault with the Trial Court and the Appellate Court placing reliance on the evidence in drawing the presumption under Section 113-A particularly,
- 28 -
CRL.A No. 800 of 2015 when there was no material brought on record by the defence to disprove the facts.
23. It is also not in dispute that there are allegations of harassment and demand for dowry against accused Nos.2, 3 and 4. But, the fact remains that accused No.4 is not resident of Holalkere Town where accused No.1 and the deceased were residing together, whereas, she is resident of Chitradurga Town. None of the witnesses have whispered anything about involvement of the accused No.4 in the offence. Though it is alleged that accused Nos.2 and 3 are also involved in the suicidal death of the wife of accused No.1, the fact remains that the complaint filed by P.W.1 mainly against accused No.1. There are no specific overt acts against accused Nos.2, 3 and 4. Taking into consideration the age of accused Nos.2 and 3 who are aged 60 years and 42 years respectively, as on the date of the incident and taking into consideration the entire material on record, the learned Sessions Judge rightly acquitted accused Nos.2, 3 and 4. However, the learned Sessions Judge is not justified in acquitting accused No.1 who is the abettor in commission of suicide by the deceased within three months of her marriage with accused No.1. The complaint as well as the
- 29 -
CRL.A No. 800 of 2015 evidence of prosecution witnesses i.e., P.Ws.1, 2 and 3 clearly depicts the involvement of accused No.1 in the suicidal death of his wife. There was constant cruelty meted out to the deceased by accused No.1. Thereby, the prosecution has made out a case to interfere with the impugned judgment of acquittal as against accused No.1 and accused No.1 is liable to be convicted for the offences punishable under Sections 306 and 498A of the Indian Penal Code. However, the learned Sessions Judge is justified in acquitting accused Nos.2, 3 and 4 for the offence made out against them in the Charge.
24. Accordingly, the first point framed for consideration in the present case is answered in the negative holding that the State has not made out any case to interfere with the impugned judgment and order of acquittal under Sections 498A, 304B, 302 r/w 34 of IPC and the second point is answered in the affirmative holding that the State has made out the case to modify the offences and convict accused No.1 under Sections 498A and 306 of IPC in the facts and circumstances of the present case.
- 30 -
CRL.A No. 800 of 2015
25. In view of the above, we pass the following:
ORDER
(i) The Criminal Appeal filed by the State is allowed in part.
(ii) The impugned judgment of acquittal dated 20.10.2014 made in Sessions Case No.4/2013 on the file of the Additional District and Sessions Judge, Chitradurga, in so far as acquitting accused No.1 for the offences punishable under Sections 498A, 304B, 302 of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961, is modified.
(iii) The impugned judgment of acquittal, acquitting accused No.1 for the offence punishable under Sections 304B and 302 of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 is confirmed.
(iv) The accused No.1 is convicted for the offence punishable under Section 306 of the Indian Penal
- 31 -
CRL.A No. 800 of 2015 Code and is sentenced to undergo simple imprisonment for a period of five years and to pay fine of `10,000/-(Rupees ten thousand only).
(v) The accused No.1 is convicted for the offence punishable under Section 498A of the Indian Penal Code and is sentenced to undergo simple imprisonment for a period of three years and to pay fine of `5,000/-(Rupees five thousand only).
(vi) All the sentences shall run concurrently.
(vii) The accused No.1 is entitled to the benefit of set-off under Section 428 of the Code of Criminal Procedure.
(viii) The impugned judgment of acquittal, in so far as acquitting accused Nos.2, 3 and 4 for the offences punishable under Sections 498A, 304B, 302 r/w Section 34 of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, is hereby confirmed.
- 32 -
CRL.A No. 800 of 2015
(ix) The accused No.1 shall surrender before the jurisdictional police within a period of one month from the date of receipt of copy of the order, to serve the sentence, failing which the learned Sessions Judge shall take steps to ensure the implementation of the present Order through the jurisdictional police and in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE Nsu/1-22 kcm/23-end