Karnataka High Court
Ningappa vs State Of Karnataka on 16 March, 2018
CRL.A.No.336/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO. 336 OF 2017
BETWEEN:
NINGAPPA
S/O RITTI BASAPPA
AGED ABOUT 38 YEARS
R/O HALLIKERI (V)
HARAPANAHALLI (T)
DAVANAGERE - 574 112 ... APPELLANT
(BY SRI VINAYAKA V.S., ADV.)
AND
STATE OF KARNATAKA
REP. BY HALUVAGALU POLICE STATION
HARAPANAHALLI TALUK
DAVANAGERE - 574 112
REP. BY SPP HIGH COURT OF KARNATAKA
BANGALORE - 560 001
... RESPONDENT
(BY SRI CHETAN DESAI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 08.01.2015 AND SENTENCE DATED 17.01.2015 PASSED
BY THE I ADDL. DIST. AND SESSIONS JUDGE, DAVANAGERE IN
S.C.NO.20/2014-CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 498(A) AND 306 OF IPC.
CRL.A.No.336/2017
2
THIS CRIMINAL APPEAL HAVING BEEN RESERVED ON
03.03.2018 AND COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal of the accused arises out of the order of conviction and sentence dated 08.01.2015 passed by the I Addl. Sessions Judge, Davanagere in S.C. No.20/2014.
2. Halavagilu Police of Harapanahalli charge- sheeted the appellant in Crime No.187/2013 of their Station, for the offences punishable under Sections 306, 323, 498-A and 504 of IPC on the basis of the complaint of Sri K. Somalingappa.
3. The gist of the said complaint is as follows:
His elder sister Kavitha was married to the accused about twelve years back. The couple have two sons by name 'Sunil' and 'Abhi', aged 11 years and 9 years respectively. The accused is addicted to alcohol and used to come home drunk and ill-treat Kavitha physically and mentally. On 25.10.2013 at 9.00 p.m., the accused came CRL.A.No.336/2017 3 home drunk and abused Kavitha in foul language, uttered that she should consume poison and die, beat and kicked her. Himself, his uncle Somanna and elder brother Lingappa intervened, rescued Kavitha and pacified her. Next morning Kavitha was found struggling due to consumption of poison. They shifted her to C.G.Hospital and she died there at 11.15 a.m.
4. The respondent - police conducted the investigation and filed the charge-sheet as aforesaid. The Magistrate after taking cognizance committed the case to the Sessions Court. The Trial Court after hearing the parties, framed charges against the accused for the offences punishable under Ss. 498-A and 306 of IPC. The accused denied the charges and claimed trial.
5. The prosecution got examined PWs 1 to 9 and got marked Exs.P1 to P9. The accused was examined under S.313 of Cr.P.C. with reference to incriminating material. He did not lead any defence evidence. The Trial Court on hearing both sides, by the impugned Judgment CRL.A.No.336/2017 4 convicted the accused for the offences punishable under Ss. 498-A and 306 IPC and sentenced him to simple imprisonment of one year and fine for the offence under S.498-A IPC and for 10 years rigorous imprisonment and fine for the offence punishable under S.306 of IPC.
6. The case of the prosecution in brief is as follows:
That the marriage of the accused and the deceased Kavitha was solemnised twelve years prior to the date of incident namely 25.10.2013. The accused was a resident of Bevinahalli Village. The accused was addicted to alcohol. He used to come home drunk and ill-treat Kavitha physically and mentally. The couple have two sons by name 'Sunil' and 'Abhi' aged about 11 years and 9 years respectively. Since the accused was ill-treating Kavitha, after two years of their marriage, the parents of Kavitha got them shifted to Hallikere (their Village) in Harapanahalli Taluk. By the side of their house, they got constructed a thatched house for the family of Kavitha. CRL.A.No.336/2017 5 The accused and Kavitha lived in that house and eked out their livelihood by doing coolie work. Even after shifting to Hallikere the accused continued boozing and ill-treating Kavitha. Despite the advice and request of the elders the accused did not mend his behaviour. On 25.10.2013 at 9.00 p.m. the accused came home drunk and abused Kavitha in filthy language, beat her and kicked her.
Further he prompted asked her to die by consuming poison and not to appear before him once again. PW Nos.1, 8 and 10 intervened and pacified the quarrel. On 26.10.2013 at 9.00 a.m., being humiliated by the conduct of the accused, Kavitha consumed poison. PWs 1 and 8 shifted her to hospital. There she died at 11.15 a.m. Thereby the accused committed the offence of cruelty and abetment to commit suicide punishable under Sections 498-A and 306 of IPC.
7. The Trial Court recorded the impugned order of conviction and sentence against the accused on the ground that the evidence of PW-1 the brother of the deceased, CRL.A.No.336/2017 6 PW-3 the mother, PW-4 and PW-7 the acquaints of the family of the deceased, PW Nos.5 and 8 to 11 the neighbours and PW-12 the son of the accused and the deceased has established that the accused subjected the deceased to cruelty and instigated her so as to drive her to commit suicide and thus committed the offences under Sections 498-A and 306 of IPC.
8. Sri Vinayaka V.S., learned counsel for the appellant, seeks to assail the impugned order of sentence and conviction on the following grounds:
(i) The witnesses examined are all the relatives of the deceased and Villagers of the parents of the deceased.
Therefore they are interested witnesses;
(ii) PW-12 the son of the deceased is a child witness and his evidence shows that he is tutored.
(iii) The evidence of witnesses themselves shows that the accused / appellant shifted the deceased to the hospital and that goes to show that the accused had no CRL.A.No.336/2017 7 intention to abet the deceased to commit suicide and that is a mitigating circumstance.
(iv) The incident took place after twelve years of the marriage. If the alleged cruelty of the accused was in such an aggravated form, the deceased could not have sustained that for twelve years.
(v) The Trial Court has failed to appreciate the evidence in proper perspective and consider the aforesaid mitigating circumstance existed in favour of the accused.
(vi) Having regard to the fact that the accused tried to rescue the deceased the sentence imposed is on the higher side.
9. Per contra, Sri Chetan Desai, learned High Court Government Pleader seeks to support the impugned judgment on the following grounds:
i) That PWs 1, 3 to 5, 7 to 10 & 12 are the eye witnesses to the cruelty inflicted by the accused. CRL.A.No.336/2017 8
ii) Merely because PWs 1 and 3 are the brother and mother of the deceased their evidence cannot be thrown out of the Board, unless it is shown that they have any animosity against the accused.
iii) The said witnesses including the deceased spared the accused for 12 years without filing any police complaint against him. That itself goes to show that they had no animosity against the accused and they hoped that he will change his conduct.
iv) Nothing is elicited to impeach the evidence of PWs 4, 5 and 7 to 10 the neighbours and well-wishers.
v) PW-12 the son of the accused himself categorically speaks about the cruelty of the accused to the deceased. Merely because he stayed with grand-
parents that alone is not a ground to disbelieve him.
vi) PWs 1, 3, 8, 9 and 12 are the eye witnesses to the incident which took place on 25.10.2013 at 9.00 p.m. where the accused beat and kicked the deceased, abused her in foul language annoying her, insulting her and CRL.A.No.336/2017 9 humiliating her. Soon thereafter next morning the deceased has consumed poison. Their evidence is corroborated by the other witnesses. The Trial Court taking into consideration all these aspects has rightly convicted the accused and therefore the impugned order of conviction and sentence does not warrant interference.
10. Having regard to the rival contentions of the learned counsel, the point that arises for consideration is, "whether the impugned order of conviction and sentence suffers any legal infirmity and calls for interference by this Court?"
11. Some of the undisputed facts of this case are as follows:
Accused is the native of Bevinahalli Village. The marriage of the accused and deceased Kavitha took place about 12 years prior to 25.10.2013. Brother of accused has married sister of deceased. After the marriage, the accused and the deceased lived in Bevinahalli Village. Two years thereafter, they shifted to Hallikere Village i.e., CRL.A.No.336/2017 10 parental house of the deceased. The family of the accused and the deceased was accommodated by the parents of the deceased in a thatched house situated by the side of their house. Deceased Kavitha and accused have two sons by names 'Sunil' and 'Abhi', aged 11 and 9 years respectively. As on the date of the incident they were living with the accused and the deceased in their house. Kavitha consumed poison in the house of the accused on 26.10.2013 morning at 9.00 a.m. Though she was shifted to C.G. Hospital, Davanagere she died due to consumption of poison.
12. Then the question is whether the accused subjected Kavitha to cruelty and abetted Kavitha to commit suicide? In this case there are no allegations that accused subjected the deceased to cruelty in connection with any unlawful demands. The allegation is that since beginning he was addicted to alcohol and every day he used to come home drunk and physically assault Kavitha and abuse her in foul language.
CRL.A.No.336/201711
13. Cruelty to married women is defined in S.498-A of IPC as follows:
"498A. Husband or relative of husband of a woman subjecting her to cruelty:
Whoever, being the husband or the relative of the husband of woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purpose of this section, "cruelty" means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
14. The above provision goes to show that the cruelty need not be necessarily linked with any unlawful demand. Any wilful conduct on the part of the accused as CRL.A.No.336/2017 12 is likely to drive a woman to commit suicide or to cause grievous injury or danger to the life of the married woman also attracts S.498-A of IPC.
15. There is no dispute that complainant/PW-1 is the brother, PW-3 is the mother of the deceased and they lived by the side of the house of accused. Further it is not disputed that PW Nos.5 and 8 to 10 all hail from the same village namely Hallikere Village and they are the neighbours of the victim and the accused. It is also not disputed that PW Nos.4 and 7 were known to the family of the victim and her parents. PW-12 the son of the deceased was residing with the accused and the deceased till death of victim Kavitha. Therefore the presence of PW Nos.1, 3, 5 and 8 to 10 at the scene of occurrence and they witnessing the conduct of the accused is quite natural and probable.
16. The accused has no explanation for shifting to Hallikere after two years of their marriage. PW Nos.1, 3, 4, 5, 7 to 11 and 12 all categorically state that the accused CRL.A.No.336/2017 13 was addicted to alcohol. They further state that he used to come home drunk and assault Kavitha and trouble her. In the cross-examination of these witnesses nothing worth is elicited to show that they have any ill-will against the accused to falsely implicate him in the case. These witnesses even do not say that accused was not taking care of the family. Thus the evidence of these witnesses is cogent and consistent.
17. The only suggestion made to PW-12 the son of the accused and victim is that he is tutored by his grand- parents. But PW-12 says that his father had looked after him well. If PW-12 was tutored there was no reason for him to state so. PW Nos.1, 3, 8 and 12 state that the accused accompanied the victim to the hospital. If they had any animosity against the accused they could have suppressed the said fact and made allegations against him stating that he did not care for the victim after consumption of poison. Merely because PW-1 and PW-3 are the brother and mother of the deceased and other CRL.A.No.336/2017 14 witnesses are the acquaints of PWs 1 and 3 it cannot be said that they are the interested witnesses unless it is shown that they have any ill-will against the accused. No such ill-will is elicited or demonstrated in the cross-examination of these witnesses.
18. Regarding appreciation of evidence of relatives and child witness the Hon'ble Supreme Court in State of Rajasthan v. Chandgi Ram and Others reported in (2014) 14 SCC 596 has held as follows:
"17. It was contended that all the witnesses were family members of the deceased and being interested witnesses, their version cannot be relied upon in toto. When we consider the same, we fail to understand as to why the evidence of the witnesses should be discarded solely on the ground that the said witnesses are related to the deceased. It is well settled that the credibility of a witness and his/her version should be tested based on his/her testimony vis-à-vis the occurrence with reference to which the testimonies are deposed before the court. As the evidence is tendered invariably before the court, the court will be in the position to assess the truthfulness or otherwise of the witness while deposing about the evidence and the persons on whom any such evidence is tendered. As every witness is bound to face the cross-examination by the defence side, the falsity, if any, deposed by the witness can be CRL.A.No.336/2017 15 easily exposed in that process. The trial court will be able to assess the quality of witnesses irrespective of the fact whether the witness is related or not. Pithily stated, if the version of the witness is credible, reliable, trustworthy, admissible and the veracity of the statement does not give scope to any doubt, there is no reason to reject the testimony of the said witness, simply because the witness is related to the deceased or any of the parties. In this context, reference can be made to the decision of this Court in Mano Dutt v. State of U.P. [(2012) 4 SCC 79]. Para 24 is relevant which reads as under: (SCC p.88) "24. Another contention raised on behalf of the appellant-accused is that only family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known the affected party, is credible, reliable, trustworthy, admissible in CRL.A.No.336/2017 16 accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party."
(Emphasis supplied)
18. Reliance can also be placed upon Dinesh Kumar v. State of Rajasthan wherein in para 12, the law has been succinctly laid down as under:(SCC p.273) "12. In law, testimony of an injured witness is given importance. When the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence."
(Emphasis supplied) CRL.A.No.336/2017 17
19. Having regard to the principles laid down in Chandgi Ram's case and evidence discussed supra, the Trial Court has rightly accepted their evidence to the effect that accused subjected the deceased to cruelty.
20. Then the question is, "whether such kind of assaulting and abusing itself amounts to cruelty and driving the married woman to commit suicide?"
21. In this context it is useful to refer to S.107 of IPC which states that a person abets the doing of a thing when he instigates any person to do that thing. S.107 does not state that instigation should be necessarily verbal alone. It can be by conduct also. If a person is put constantly to an endless stress, agony and humiliation such action may drive that person to commit suicide.
22. In this case there is sufficient material to show that the accused for twelve years continuously subjected the deceased to physical and mental cruelty, coming home everyday drunk, assaulting her and hurling abuses against CRL.A.No.336/2017 18 her, that too in the presence of growing sons. Such conduct is nothing but oppression or subjugation of a person. The deceased had two children. PW-8 in his evidence states that being frustrated by the conduct of the accused when they tried to beat the accused, deceased herself used to intervene and request them not to beat him. That goes to show that response of the deceased to the situation was, fight or flight. She fought it for twelve years incessantly and desperately. On reaching the point that she can no more receive it, she took recourse to flight i.e. to vanish herself. The accused after taking the victim granted for twelve years, if attempts to realize her value after she consuming poison, that does not reverse crime to innocence. That in no way saves him from his criminal liability.
23. In this case the victim has not chosen to live away from the accused. The evidence of PW-8 that she was not allowing the accused to be beaten up by others shows that she was a meek and polite woman. There are CRL.A.No.336/2017 19 sufficient grounds to accept that twelve years' constant cruelty and oppression to her has caused her insult, injury and annoyance and broke her strength of tolerance pushing and driving her to commit suicide. The Trial Court appreciating all these things has rightly convicted the accused for the offences punishable under Ss.498-A and 306 of IPC.
24. The contention that, the accused accompanied the victim to the hospital or he tried to snatch the pesticide bottle from her hands, therefore he had no intention to abet the suicide cannot be accepted, having regard to his twelve years' incessant torture given to her. Moreover as already pointed out S.498-A IPC contemplates a wilful conduct and S.107 IPC does not state that the instigation should be verbal alone. However in this case such verbal instigation has also taken place as spoken by the witnesses.
25. Once by such torture, the attempt to commit suicide takes place, the subsequent conduct of accused CRL.A.No.336/2017 20 attempting to save her life does not reverse the guilt to innocence. At the most that may mitigate the sentence that may be imposed against him. This can be clarified by giving an illustration like, if a person stabs another person with weapon and then takes him to hospital, his offence of causing hurt with weapon will be completed by the time the hurt is caused. The subsequent conduct of shifting the injured to the hospital does not nullify the crime. Therefore the conduct of the accused accompanying the victim to the hospital or trying to snatch the pesticide bottle from her, in the facts and circumstances of the case, does not take away the criminal liability under Sections 498-A and 306 of IPC.
26. When there is clear evidence of witnesses that on account of torture of the accused the deceased committed suicide inside the house of the accused, the accused is liable to be convicted for the offences punishable under S.498-A & S.306 of IPC. CRL.A.No.336/2017 21
27. So far as the sentence is concerned, the Trial Court has imposed sentence of ten years' R.I. for the offence punishable under S.498 and S.306 of IPC. The accused - appellant was arrested on 27.10.2013. The evidence on record shows that, on the deceased consuming the poison the accused realized his mistake and tried to save her by snatching the residue poison from her hand and taking her to the hospital. Moreover he lived with her for twelve years. He has two children. The accused is aged 38 years.
28. Having regard to the aforesaid facts and circumstances, the sentence of Rigorous Imprisonment for ten years imposed by the Trial Court is on the higher side. The case did not warrant the maximum period of punishment prescribed under S.306 of IPC. This Court is of the considered opinion that the Rigorous Imprisonment of 10 years can be reduced to Rigorous Imprisonment for 5 years.
Therefore the appeal is partly allowed. CRL.A.No.336/2017 22 The order of conviction passed by the I Additional District and Sessions Judge, Davanagere in S.C. No.20/2014 against the appellant for the offences punishable under Sections 498-A and 306 of IPC is confirmed. The impugned order of sentence is modified to the effect that the sentence of R.I. of ten years for the offence punishable under S.306 IPC is reduced to R.I. of five years. The rest of the Judgment is maintained.
The Trial Court shall issue the modified conviction warrant.
Sd/-
JUDGE sac*