Karnataka High Court
Girish S/O Ningappa Bhavimani vs The State Of Karnataka on 30 July, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 30 t h DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.709 OF 2008 [C]
BETWEEN:
GIRISH S/O NINGAPPA BHAVIMANI
AGED ABOUT 35 YEARS
OCC: MEMBER OF SDMC,
GOVT PRIMARY SCHOOL
R/O VENKATAPUR
TQ MUNDARAGI,
DIST GADAG
... APPELLANT
(By Sri. B V SOMAPUR ADV.)
AND:
THE STATE OF KARNATAKA
BY MUNDARGI POLICE
... RESPONDENT
(By Sri.K.S.PATIL, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANT AGAINST THE JUDGMENT
DT.23.4.2008 PASSED BY THE DIST. & S.J., GADAG IN
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S.C.NO.41/07 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S.504, 509 AND 306 OF IPC. AND
SENTENCING HIM TO UNDERGO R.I. FOR A PERIOD OF 2
YEARS WITHOUT ANY FINE FOR THE OFFENCE P/U/S.504
OF IPC. FURTHER SENTENCING HIM TO UNDERGO R.I.
FOR A PERIOD OF ONE YEAR WITHOUT ANY FINE FOR THE
OFFENCE P/U/S.509 OF IPC. FURTHER SENTENCING HIM
TO UNDERGO R.I. FOR A PERIOD OF 7 YEARS WITHOUT
ANY FINE FOR THE OFFENCE P/U/S.306 OF IPC. ALL THE
SENTENCES TO RUN CONSECUTIVELY.
This Criminal Appeal coming on for Final
Hearing this day, the Court delivered the
following:
J U D G M E N T
The appellant (hereinafter referred to as 'the accused') was tried, convicted and sentenced for offences punishable under Sections 504, 509 and 306 of the Indian Penal Code.
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2. I have heard Sri.B.V.Somapur, learned counsel for accused and learned Government Advocate for the State.
3. The accused is a native of Venkatapur, Mundargi Taluk, Gadag District.
Before narrating the case of prosecution, evidence adduced by prosecution and findings recorded by trial court, it is necessary to state certain facts which are not in dispute.
4. The deceased Smt.T.Prema was a native of Kollegala, Chamarajanagar District. The deceased was a widow. PW-1/Siddamma is the mother of deceased. PW-2/Abhishek is the son of deceased. PW-3/Siddamma is the senior maternal aunt of deceased. PWs-1 and 2 are residents of Kollegala. PW-3 is a resident of Bandalli. The deceased was working as Government Primary School Teacher of Venkatapura Village, Mundargi :4: Taluk, Gadag District. She was residing at Mundargi. She was commuting to Venkatapura from Mundargi to attend to her work in Government Primary School at Venkatapura. The accused was one of the members of School Development Management Committee of Government Primary School at Venkatapura.
5. On 04.04.2007 at about 8.00 a.m., deceased doused kerosene and set herself on fire in front of the house of accused at Venkatapura. She was immediately shifted to District Hospital at Gadag. After initial treatment, she was shifted to Karnataka Institute of Medical Sciences (for short 'KIMS') Hospital at Hubli. She was treated for four days and she succumbed to burn injuries at 12.10 a.m on 08.04.2007. As per post-mortem examination report, the death was due to superficial to deep burn injuries. :5:
6. It is the case of prosecution that accused, being one of the members of School Development Management Committee of Government Primary School at Venkatapura, was subjecting deceased to torture. The accused was demanding money from deceased. The accused was demanding deceased to supply liquor to him. The accused was assassinating the character of deceased in public. The accused had removed the syntax tank of Government Primary School at Venkatapura. The deceased had to go to open field to attend nature's call. The accused was constantly torturing the deceased. The complaints given by deceased to School Management were of no avail. As already stated, deceased was a widow. She had to maintain her mother and son who were residing in Kollegala of Chamarajanagar District. The distance between Venkatapura and the native place of deceased is about 600 km. The deceased :6: not being able to bear the torture meted to her by accused, doused kerosene and set herself on fire on 04.04.2007 at about 8.30 a.m. in front of the house of accused.
7. After initial treatment in the District Hospital at Gadag, she was shifted to KIMS Hospital at Hubli. The Station House Officer visited KIMS Hospital and recorded the statement of deceased (Ex.P-17) in the presence of Dr.N.Sandhya (PW-23). An intimation was sent to Taluk Magistrate, Hubli. He visited KIMS Hospital and recorded statement of deceased (Ex.P-18) at 2.30 p.m. on 04.04.2007. As already stated above, the deceased succumbed to burn injuries at 12.10 a.m. on 08.04.2007. After the inquest, post mortem examination was conducted by Dr.Gajanan Naik (PW-28). As per the evidence of PW.28/Dr.Gajanan Naik and contents of post- :7: mortem examination report (Ex.P-29), deceased had suffered 90% to 98% of burns. The death was due to burn injuries. The deceased had committed suicide by dousing kerosene and setting herself on fire. The evidence of PW-28/Dr.Gajanan Naik and contents of post-mortem examination report (Ex.P-29) have not been seriously controverted.
8. The investigating officer recorded the statements of witnesses, seized incriminating articles and after receipt of report from forensic science laboratory, submitted final report.
9. In order to bring home the guilt of accused, prosecution has relied on the following:-
(i) The statement of deceased
recorded by Station House Officer
of Mundargi Police marked as Ex.P-
27;
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(ii) The statement of deceased (dying
declaration) recorded by Taluk
Magistrate (PW-24), marked as
Ex.P-18.
(iii) The complaint dated 03.04.2007
submitted by deceased to PW-25
(Sankappa P.Betageri), the then
Block Education Officer.
(iv) The oral evidence of close relatives
of deceased;
(v) The evidence of independent
witnesses;
10. The defence of accused is one of total denial. The accused had contended that he was falsely implicated due to political rivalry.
11. PWs-1 to 3 have given evidence that deceased had told them about the torture meted to her by accused whenever she used to visit her :9: village. However, they were pacifying the deceased.
12. PW-1/Siddamma, the mother of deceased had deposed: The deceased is her daughter. She had married one Shekhar. He (the husband of deceased) died about 10 to 12 years prior to the year 2008. PW-2/Abhishek is the son of deceased Prema and deceased Shekhar. Since four years prior to her death deceased was working as a Teacher in Government Primary School at Venkatapura of Mundargi Taluk. The children of deceased and her mother/PW-1 were staying in Kollegala. The deceased alone was staying at Mundargi and she was commuting to Venkatapura to attend to her work in Government Primary School at Venkatapura. The deceased used to visit her native place--Kollegala once or twice in a year. Whenever she had visited her native place, : 10 : she had informed PW.1 that accused was demanding money from deceased. He was also demanding the deceased to get him arrack. The deceased had told PW-1 that she would resign from her job. PW-1 used to pacify the deceased that she was working as a Teacher in a Government Primary School. She should manage to work there and she could request for transfer to Kollegala. PW-1 had advised deceased to endure the troubles suffered by her at the hands of accused. On learning about the incident, PW-1 and others came to KIMS Hospital at Hubli and found that deceased had suffered burn injuries. PW-1 enquired the deceased and deceased told PW-1 that accused had tortured the deceased. Therefore, she doused kerosene and set herself on fire. The deceased had told PW-1 that she would prefer her honour to death. The deceased had told PW-1 that she had set herself on fire as she : 11 : was not able to bear the torture meted to her by accused.
13. During cross-examination, PW-1 has reiterated her version given in examination-in- chief. PW-1 has denied that she had given false evidence against accused. PW-1 has denied that deceased had suffered 98% of burn injuries and she was not able to speak. The cross-examination of PW-1 is suggestive in nature.
14. PW-1 is the mother of deceased. She is a native of Kollegala. She had no acquaintance or enemity with accused. She had no reasons to falsely implicate accused by stating that deceased committed suicide not being able to bear torture meted to her by accused. PW-1 had no motives to falsely implicate accused by stating that deceased had told PW-1 that she was being continuously tortured by accused. The accused was demanding : 12 : money from deceased. The accused was demanding deceased to bring arrack. In fact, deceased had decided to give up her job. However, on account of family commitments and in the interest of dependents of deceased, PW-1 had advised deceased to bear with the situation and make efforts to get herself transferred from Venkatapura to Kollegala.
15. PW-2/Abhishek is the son of deceased. PW-2 has deposed that her mother (deceased) was working as a Government Primary School Teacher in Venkatapura, Mundargi Taluk, Gadag District. PW-2 was studying in High School at Kollegala and he was staying with PW-1. CW-33/Yashasvini is the sister of PW-2. Whenever the deceased used to visit Kollegala, she had informed PWs-1 and 2 that accused was torturing the deceased. Accused was demanding deceased to bring brandy. The : 13 : accused was spreading rumours that deceased had illicit intimacy with others. The deceased was telling PWs-1 and 2 that she would give up her job and return to Kollegala. PW-1 requested deceased to continue to work at Venkatapur and she could make efforts to get herself transferred to Kollegala from Venkatapura. PW-2 has deposed that deceased was contacting PW-1 over phone. The deceased was narrating to PW-1 about the torture meted to her by accused. After learning about the incident, PWs-1 and 2, her maternal uncle (Mohan) came to KIMS at Hubli. PW-1 enquired the deceased. The deceased told that she was not able to bear the torture meted to her by accused. Therefore, she set herself on fire.
16. During cross-examination, PW-2 has denied that he had not come to KIMS Hospital and he had not seen the deceased. PW.2 has denied : 14 : the suggestion that deceased had not told them about the torture meted to her by accused. PW.2 has denied the suggestion that accused was in no way responsible for the suicide committed by deceased.
17. At this juncture, it is relevant to state that PW-2 was not acquainted with accused. He was a student studying in High school in Kollegala Taluk and accused is from Venkatapura Village of Gadag District. As already stated, the distance between Venkatapura and Kollegala is more than 600 km. PW-2 had no motives to falsely implicate the accused. Therefore, evidence of PW-2 lends substantial corroboration to evidence of PW-1.
18. PW-3 is the senior maternal aunt of deceased. She learnt about the incident and came to KIMS Hospital. Before she reached the KIMS Hospital, deceased had died of burn injuries. The : 15 : police prepared inquest report. PW-3 had attested the inquest report.
19. Thus, the close relatives of deceased have deposed that accused was continuously torturing deceased. The deceased, was a helpless widow, she was entirely depending on her avocation as a Primary School Teacher. The deceased was not in a position to give up her job. At the same time she was not able to bear the mental torture meted to her by the accused. Therefore the deceased set herself on fire in front of the house of accused at about 8.00 a.m. on 04.04.2007. She succumbed to burn injuries on 8.4.2007.
20. PW-4/Mumtaz was working as an Assistant Teacher in Primary Urdu School at Yakalasapura village of Mudargi Talk. PW-4 has deposed that deceased was working as a Teacher : 16 : in Government Primary School at Venkatapur. PW-4 was a friend of deceased. Whenever deceased used to meet PW-4, she had told PW-4 that accused was subjecting deceased to torture. He was demanding money from deceased. He was also demanding deceased to supply him arrack. He was also threatening the deceased that if she fails to meet his demand, he would spread wild rumours about the character of deceased. PW-4 had advised deceased to get herself transferred from Venkatapura School to some school nearer to her native place.
21. During cross-examination, PW-4 has deposed that PW-4 is a native of Mundargi. The deceased was staying in a house nearer to the house of PW.4 at Mundargi. PW-4 has denied the suggestion that she being a friend of deceased has given false evidence against accused. PW-4 has : 17 : denied the suggestion that accused was not subjecting deceased to torture.
22. PW-4 is a native of Mundargi. She knew the deceased because deceased was staying in a rented house near the house of PW-4. PW-4 was not interested in the success of the case of prosecution. In the cross-examination of PW-4, we do not find she had any motives to falsely implicate accused. There is nothing in her evidence to indicate that she had grudge against accused to depose against him in a trial for serious offences.
23. PW-5/Harish Gowda is a native of Venkatapura. PW.5 has deposed that accused (Girish Ningappa Bhavimani) was a member of the School Development Management Committee of Government Primary School at Venkatapura. The deceased was staying in Mundargi. She was : 18 : travelling by bus from Mundargi to Venkatapura to attend her school. Whenever there used to be delay in arrival of bus, deceased used to stay in the house of PW-5. About one year prior to the date of incident, deceased was crying in the bus- stop and PW-5 enquired the deceased. She told PW-5 that accused was torturing her by demanding money. The accused had also removed the syntax tank attached to the school. The deceased was going to open fields to attend to nature's call. The accused was following her and he was behaving indecently with her.
24. PW-5 has deposed that at about 8.00 a.m. on 04.04.2007, deceased had set herself on fire in front of the house of accused. She was shifted to District Hospital at Gadag and later, she was shifted to KIMS Hospital at Hubli. When the mother of deceased enquired the deceased as to : 19 : why she had committed such an act, deceased told her mother that she had determined to die than to tolerate the ignominy caused by accused by assassinating her character.
25. During cross-examination, PW.5 has denied that immediately after the incident, deceased was not in a condition to speak. PW-5 has admitted that accused was proclaiming himself as a political leader and accused was involved in political activities. PW-5 has denied that he had foisted a case against accused to eliminate accused from politics. He has denied that accused was in no way responsible for suicide committed by deceased. PW-5 is the holder of B.Sc. D- Pharma and he was engaged in agriculture. The trial court has recorded the demeanor of PW-5, which would indicate that PW-5 had no motives to : 20 : falsely implicate accused and he was an independent witness.
26. PW-8/Pandurang has given evidence in proof of inquest conducted on deceased, the contents of which have not been seriously disputed by accused.
27. PW-9/Adiveppa, PW-10/Hanamappa, PW.11/Kalakappa, PW-12/Shivasangappa have not supported the case of prosecution.
28. PW-13/Maheshgowda is the elder brother of PW-5/Harish Gowda. PW-13 has deposed that deceased was residing in a house at Mundargi. She was attending to Government Primary School at Venkatapura by travelling in bus from Mundargi. Whenever there used to be delay in arrival of bus, she was staying in the house of PW-13. She had informed PW-13 that she was being subjected to : 21 : harassment. However, she has not given the name of persons. On 04.04.2007 from 8.30 a.m. to 9.00 a.m. PW.13 was in his house. PW.13 learnt that deceased had set herself on fire in front of the house of accused. Therefore, PW.13 reached the place of incident and questioned the deceased as to why she had committed such an act. The deceased told PW.13 that she was not able to bear the torture meted to her by accused. Therefore, she had set herself on fire.
29. PW-13 secured an ambulance and sent deceased to Government Hospital at Gadag. The deceased had told PW-13 that accused was demanding money from her and he was demanding her to get arrack. The accused was threatening the deceased that he would spread rumours about the character of deceased.
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30. During cross-examination, apart from suggesting that PW-13 being the brother of PW-5 was interested in implicating accused, nothing is brought on record to discard his evidence.
31. At this stage, it is relevant to notice that PW-13 was not related to deceased or accused. He had no interest in success of the case of prosecution. The evidence of PW.13 does not indicate that he had any reasons to falsely implicate accused. Therefore, there are no reasons to suspect evidence of PW.13.
32. PW-14/Shanmukhagouda has deposed that deceased was a Primary School Teacher at Venkatapura. PW-14 knew the deceased. The deceased was staying in a rented house at Mundargi and she was travelling from Mundargi to Venkatapura by bus. During the year 2007, accused was a Member of School Development : 23 : Management Committee of Government Primary School at Venkatapura. The deceased had told PW-14 that accused was subjecting her to torture. On 04.04.2007 at about 8.30 a.m., after learning that deceased had set herself on fire, PW-14 reached the place of incident. When PW-14 questioned the deceased as to why she had set herself on fire, deceased told PW.14 that she was more bothered about her self-respect and honour than her life. PW-14 and others shifted her in a vehicle to District Hospital at Gadag.
33. During cross-examination, PW-14 has denied the suggestion that accused had not subjected the deceased to torture and PW-14 has given false evidence.
34. PW-15/Virupaxagouda has not supported the case of prosecution, so also PW-16/Jagadeesh. : 24 :
35. PW-17/Ramakrishna was working as the President of Teachers' Association of Mundargi Taluk. On 03.04.2007 at about 9.00 a.m., deceased had given a representation to PW-17 stating that accused was torturing her. The deceased had gone to give a copy of representation to Block Education Officer at Mundargi. The copy of representation given by deceased is marked as Ex.P-12. During cross- examination, PW-17 has denied that he had concocted the contents of document marked as Ex.P-12.
36. From the contents of Ex.P-12, we find that deceased had addressed a letter to the President of School Teachers' Association of Mundargi Taluk. In that representation, she had narrated the events and torture meted to her by accused. Though this is a copy of document, : 25 : there are no reasons to suspect the contents of Ex.P-12.
37. PW-18/Hanamanthappa was the General Secretary of Gadag District Teachers' Association. PW-18 has deposed that during the month of April- 2007, deceased was working as a Government Primary School Teacher at Venkatapur. On 01.04.2007, during night, deceased had met PW.18 and informed PW-18 that accused was collecting a sum of Rs.200/- from the parents of students assuring them to get admission to Morarji Desai Residential School. When the deceased questioned the accused he had insulted the deceased. Therefore, PW-18 secured other teachers and told accused not to harass the teachers and not to collect Rs.200/- from the parents of students.
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38. During cross-examination of PW-18, it was suggested that he was deposing falsely in the case. PW.18 was not known to accused. The deceased was not related to PW.18. PW-18 had denied the suggestion. In the circumstances, there are no reasons to discard the evidence of PW-18.
39. PW-19/Srishailappa and PW-20/Ningappa have not supported the case of prosecution.
40. PW-22/Andanappa was working as Deputy Director of Public Instructions at Gadag. He had received information about deceased setting herself on fire in front of house of accused on 04.04.2007. PW-22 had gone to KIMS Hospital to see the deceased. PW-22 enquired deceased as to why she set herself on fire. The deceased told him that accused had constantly tortured her. : 27 : Therefore, she not being able to bear the torture, set herself on fire.
41. At this stage, it is necessary to appreciate contents of statement of deceased recorded by the Station House Officer and dying declaration recorded by Taluk Magistrate in the context of oral evidence of aforestated witnesses.
42. PW-6/Dr.Nirmala was working as a Medical Officer in the District Hospital at Gadag. She has deposed that on 04.04.2007 at 11.00 a.m. when she was on duty, deceased- (a lady by name Smt.T.Prema), was brought from Venkatapura. She had suffered burn injuries. She had been brought to hospital by a Constable/PCB No.944. She had suffered 80% of burn injuries. After primary treatment, deceased was shifted to KIMS (a Major Hospital), at Hubli.
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43. During cross-examination, PW-6 has deposed that the condition of deceased was critical. Therefore, after initial treatment, she was referred to a major hospital (i.e., KIMS Hospital at Hubli). PW.6 has denied the suggestion that after antibiotics were given to deceased, she became unconscious.
44. PW-7/Dr.Sharanawwa was working as a Medical Officer in KIMS Hospital at Hubli. She has produced the case-sheet relating to treatment of deceased as per Ex.P-4 and also attested medico legal register extract marked as Ex.P-5. From the contents of Ex.P-5, we find that deceased was admitted in KIMS Hospital on 04.04.2007. At the time of admission, deceased was conscious oriented and she was responding to oral commands. She had suffered 90% to 98% burn injuries.
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45. PW-23/Dr.N.Sandhya has deposed that on 04.04.2007, PC No.562 of Mundargi Police Station visited the hospital and enquired PW-23 about the mental and physical condition of deceased to give her statement. PW-23 gave an endorsement stating that deceased was in a fit condition to give her statement. Thereafter, the statement was recorded in the presence of PW-23. PW-23 has deposed that deceased gave a statement that accused was harassing the deceased. The deceased not being able to bear the torture and harassment meted to her by accused, doused kerosene and set herself on fire to commit suicide.
46. During cross-examination of PW-23, apart from some minor discrepancies relating to the time of first information was recorded and manner in which contents of Ex.P-17 were : 30 : recorded, nothing has been elicited to discard her evidence.
47. PW-21/Dr.H.Ramesh was working as an Associate Professor in the Department of Surgery in KIMS Hospital at Hubli. PW-21 has deposed that on 07.04.2007, Mundargi Police had submitted a report. He has identified the same as Ex.P-15. During cross-examination, PW-21 has denied the suggestion that he had concocted the case-sheet and he had not recorded the statement of deceased in the case-sheet.
48. Thus, we find that there is consistent version of the relatives of deceased and independent witnesses that deceased was continuously tortured by accused. As already stated, deceased was a widow. She was working as a Primary School Teacher at Venkatapura, : 31 : which is at a distance about 600 km from her native place. The deceased had lost her husband. She was the sole bread-winner of the family. She had to maintain her mother, a son and daughter out of her salary income. In the circumstances, the deceased though had thought of resigning from her post, she could not do so, due to financial constraints and her responsibility to maintain her children and her mother.
49. The earliest statement of deceased was recorded by a Police Constable-PC.562 of Mundargi Police Station when deceased was admitted in KIMS Hospital at Hubli. The deceased had given statement to PC No.562, which was recorded by the Station House Officer of Mundargi Police Station. The contents of Ex.P-17 would lend corroboration to the evidence of PWs-1 to 5. Ex.P-17 was recorded by PC No.562 of Mundargi : 32 : Police Station. He had no reasons to falsely implicate the accused. Therefore, oral evidence of close relatives of deceased, independent and other official witnesses would lend corroboration to the statement given by deceased when she was being treated in KIMS Hospital at Hubli. In the first information, deceased had narrated that accused was harassing her and demanding her money. The accused demanded her to get brandy. When the deceased had used to refuse to fulfil the demands of accused, he was threatening the deceased that he would spread false rumours about the character of deceased.
50. On 04.04.2007 at about 2.30 p.m., the Taluk Executive Magistrate, Gadag (PW-24) had recorded the statement of deceased in the form of dying declaration. In the dying declaration (Ex.P-
18), deceased has stated that accused was : 33 : constantly harassing her. The accused was a Member of School Development Management Committee. He was constantly demanding money from deceased. The accused was also scolding her. The accused was also spreading false rumours about the character of deceased.
51. In addition to the above documents, we have also the representation given by deceased to Block Education Officer through the Head Master of the School, wherein she has narrated the torture meted to her by accused.
52. PW.23 Dr.N. Sandhya has deposed; she was working as Assistant Professor in KIMS, Hubli. On 4.4.2007 during afternoon, PC.562 of Mundargi Police Station submitted his requisition to record the statement of deceased Prema and wanted confirmation of PW.23 that Prema was mentally fit to give her statement. The requisition is marked : 34 : as Ex.P.16. PW.23 on examination of Prema found that deceased was mentally fit to give statement. PW.23 made an endorsement as per Ex.P.16(A).
PW.23 has deposed; she has made an endorsement on statement recorded by Taluk Executive Magistrate. The Taluka Executive
Magistrate recorded the statement of deceased in the presence of PW.23.
53. PW.23 has deposed; as per statement given by deceased Prema she was working as teacher in primary school at Venkatapur. The accused Girish Bhavimani was harassing and torturing her. Deceased Prema not being able to bear torture doused kerosene and set herself on fire on 4.4.2007.
54. During cross-examination, PW.23 has denied that deceased was not mentally fit to give a statement and PW.23 and police constable have : 35 : fabricated. PW.23 has denied that statements as per Ex.P.16, Ex.P.17 and Ex.P.18 are concocted by PW.23, Tahasildar and Police Constable. In my considered opinion, these suggestions have no basis. PW.23 did not know the accused. It is not suggested to PW.23 that persons inimical to accused were present and the statements of deceased were recorded. Therefore, there are no reasons to suspect the evidence of PW.23.
55. PW.24-Shanmukhappa was working as Tahasildar at Hubli. On 4.4.2007 at 2 p.m. HC.562 came to the Office of Tahasildar and gave a requisition to record statement of Prema who was being treated in KIMS at Hubli. The requisition is marked as Ex.P.19. PW.24 visited KIMS and contacted Medical Officer to confirm if deceased was mentally fit to give her statement. The Medical Officer certified that deceased was : 36 : mentally fit to give her statement. Thereafter, PW.24 visited the ward and recorded statement of Prema. PW.24 recorded statement of Prema in question and answer form. The statement was recorded in the presence of PW.23.
56. During cross-examination, PW.24 has denied the suggestion that statement of Prema was concocted to support the case of prosecution. This suggestion has no basis. PW.24 did not know accused, much less, deceased Prema. In the circumstances, PW.24 did not have any oblique motives to record a false statement to implicate accused. Thus the statement made by deceased before the SHO and before the Taluka Executive Magistrate would clearly reveal the circumstances which lead to her death.
57. The learned Counsel for accused would submit the statement made by deceased, in : 37 : particular, the statement recorded before the Taluka Executive Magistrate as per PW.18, does not fall under ambit of Sec.32 of Evidence Act.
58. The learned Govt. advocate relying on the judgment of the Supreme Court reported in AIR 1984 SC.1622 (in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra), would submit that suicidal death would fall within the ambit of Sec.32 of Evidence Act. In the aforestated judgment the Supreme Court has held:
"With regard to the scope of S.32(1) the following propositions emerge:-
(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect the Evidence Act, in view of : 38 : the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of S.32 to avoid injustice."
Therefore, the submission of learned Counsel for accused that statement of deceased does not fall within the ambit of Section 32 of Evidence Act cannot be accepted.
59. In the discussion made supra, I have discussed evidence of close relatives of deceased, the independent witnesses, conduct of accused with deceased. Their evidence would lend corroboration to the statement of deceased made before SHO and also the statement of deceased before Tahasildar. These statements would clearly attract the provisions of Section 32(1) of Evidence Act. Therefore, the prosecution has proved that accused had subjected the deceased to mental : 39 : torture. The deceased not being able to bear torture meted by accused, doused kerosene and set herself on fire at about 8 a.m. on 4.4.2007 in front of house of accused. The deceased succumbed to burn injuries in KIMS on 8.4.2007.
60. The learned Counsel for accused referring to provisions of Sections 107 and 306 Indian Penal Code would submit that, abetment to aid an offence would involve physical acts and tangible acts on the part of accused. In the case on hand, evidence on record does not reveal that accused had instigated deceased to commit suicide to attract an offence punishable under Section 306 of Indian Penal Code.
61. In order to appreciate this submission it will be useful to refer to judgment of Supreme Court reported in 2005 SCC (Crl) 56 (Randhir : 40 : Singh Vs. State of Punjab) wherein the Supreme Curt has held:
"Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306, Indian Penal Code."
62. The act of abetment involves mental process. The instigation involves process of inciting feelings of the deceased. It is not necessary that there should be a tangible act or instigation by words. Whether the acts of accused would attract an offence of abetment to commit : 41 : suicide, depends upon facts and circumstances of each case.
63. In the case on hand, the prosecution has proved that deceased Prema was a widow. The deceased was working as a school teacher in Venkatapur village of Mundargi taluk. She was native of Kollegal. She had a mother, son and daughter to maintain. The accused was a member of School Development Managing Committee of Govt. Primary School at Venkatapur. The accused was constantly torturing deceased by demanding money and also demanding her to bring liquor. The accused had assassinated character of deceased in public. The representations given by deceased to school management did not come to her rescue. The deceased was in a helpless condition. The deceased had thought of quitting her job. However, deceased did not have other : 42 : means to maintain herself, her children and her mother. When the torture meted to her by accused reached intolerable limits the deceased was driven to the brink of disaster to commit suicide.
64. The accused has sought to establish that he was falsely implicated due to political rivelry. As already stated, the deceased was a widow. She was working as a primary school teacher. Her place of work was at a distance of 600 Kms from her native place. In the circumstances, it looks improbable that deceased had developed connections with local politicians and deceased committed suicide to falsely implicate the accused. It looks highly improbable that deceased had staked her life to falsely implicate accused. Therefore, the prosecution has proved that : 43 : accused had abetted commission of suicide by the deceased.
65. The utterances of accused and conduct of accused would also attract offences punishable under Sections 504 and 509 of IPC. The learned Trial Judge has on proper appreciation of evidence held accused guilty of offences punishable under Sections 306, 502 and 509 of IPC.
66. The learned Counsel for accused would submit that the trial Court has sentenced accused to undergo imprisonment for a period of seven years for the offence punishable under Section 306 IPC. The accused does not bear criminal antecedents. The accused has responsibility to maintain his family members. The accused has to be given a chance to reform himself. Therefore, the sentence of imprisonment is severe. : 44 :
67. The learned Government Advocate would justify sentence imposed by the Trial court.
68. The offence of abetment to commit suicide is punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to pay fine. Considering aggravating factors and extenuating circumstances, I deem it appropriate to sentence accused to undergo imprisonment for a period of five years for offence punishable under Section 306 of IPC. The fine imposed by learned Trial Court for an offence punishable under Section 306 IPC and also the sentence imposed for offences punishable under Sections 504 and 509 of IPC do not call for interference.
69. In the result, I pass the following: : 45 :
O R D E R The appeal is accepted in-part. The impugned judgment of conviction of accused for offences punishable under Sections 306, 504 and 509 of IPC is confirmed. The sentence is modified. The accused is sentenced to undergo simple imprisonment for a period of five years for an offence punishable under Section 306 of IPC.
The rest of the impugned judgment is confirmed.
SD/-
JUDGE RK/sub.