R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE31T DAY OF MARCH, 2021 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CRIMINAL APPEAL NO.187 OF2011(C) BETWEEN: SRI RANGEGOWDA, S/O LATE DASAPPA, AGED ABOUT32YEARS, R/AT KONDETHIMMANAHALLI VILLAGE, PAVAGADA TALUK, TUMKUR DISTRICT. ...APPELLANT (BY SRI AMIT DESHPANDE, ADVOCATE APPOINTED AS AMICUS CURIAE V/O/D1112.2020) AND: THE STATE OF KARNATAKA, BY HIRIYUR POLICE REP.BY THE PUBLIC PROSECUTOR CHITRADURGA DISTRICT. …RESPONDENT (BY SRI RAHUL RAI K, HCGP) **** THIS CRIMINAL APPEAL IS FILED UNDER SECTION3472) CR.P.C PRAYING TO SET ASIDE THE ORDER
DT:
29. 1.11 PASSED BY THE PRL. DIST., AND S.J., CHITRADURGA IN S.C.NO.107/10 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S498 IPC. AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR A PERIOD OF ONE YEAR, AND ALSO TO PAY2FINE OF RS.7,000/- IN RESPECT OF THE OFFENCE P/U/S498 IPC. IN DEFAULT TO PAY THE FINE AMOUNT, THE APPELLANT/ACCUSED SHALL UNDERGO S.I. FOR A FURTHER PERIOD OF THREE MONTHS. THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
This appeal has arisen out of the judgment and order of conviction dated 29.01.2011 passed in S.C.No.107/2010 on the file of the Principal District and Sessions Judge, Chitradurga, for the offence punishable under Section 498A of IPC.
2. The prosecution case in nutshell is that the complainant’s eldest daughter Mamatha was given in marriage to appellant-accused No.1. Their marriage was performed in the year 2003. After the marriage both of them were residing in the house of the complainant at Kurubarahalli for about two years. Thereafter they started residing at K.T.Hally Village and they were visiting the house of the complainant during festivals. On 29.08.2007 at 8.00 p.m., complainant’s daughter Mamatha came to her parents house and complained about the harassment caused by accused Nos.2 and 3, who are the mother and sister-in-law of victim for silly reasons and at their instigation her husband-accused No.1 has 3 meted out cruelty. Thereafter, on 01.09.2007 at about 10:00 a.m. complainant’s daughter Mamatha committed suicide by consuming poison in the farm house of the complainant. Based on the complaint of victim’s father, Hiriyur Police have registered the case at Crime No.474/2007 against accused Nos.1 to 3 for the offence punishable under Section 306 read with Section 34 of IPC. After investigation, the police have submitted the charge sheet in C.C.No.127/2008 for the offence punishable under Sections 498A, 306 read with 34 of IPC. After committal of the case, the accused have appeared and the charges were framed for the offence punishable under Sections 498A and 306 of IPC. The accused pleaded not guilty to the said charges and claimed to be tried. The prosecution has examined 13 witnesses as P.Ws.1 to 13 and 10 documents are marked as Exs.P-1 to P-10. On closure of the evidence of prosecution, the statement under Section 313 Cr.P.C was recorded. The accused have denied the incriminating circumstances and have filed their statement of defence, but they have not led defence evidence. 4
3. On appreciating the oral and documentary evidence placed on record, the trial Court acquitted accused Nos.2 and 3 for the offence punishable under Sections 498A and 306 read with 34 of IPC and acquitted the appellant-accused No.1 for the offence punishable under Section 306 of IPC but convicted him for the offence punishable under Section 498A of IPC. Being aggrieved by the order of conviction, accused No.1 has preferred the appeal.
4. Heard learned amicus-curiae for the appellant-accused No.1 and learned High Court Government Pleader for the respondent-State. Perused the prosecution records and the impugned judgment and order.
5. Learned amicus-curiae has submitted that initially the FIR was registered for the offence punishable under Section 306 of IPC only, but later in the charge sheet, Section 498A of IPC was added. The evidence of parents and sister of the victim goes to show that immediately after the marriage, the victim and her husband were residing at Kurubarahalli in complainant’s house for about two years, at that time, there was no harassment whatsoever. The allegation of harassment and cruelty is only after 5 they shifted to K.T.Halli village, which is the native place of accused No.1. There is no clinching evidence to show that accused Nos.1 to 3 have caused harassment to the victim. One of the allegations is that appellant-accused No.1 was having extra marital affair with his sister-in-law (brother’s wife). The intimacy of the husband with other woman do not necessarily lead to presumption of cruelty. There is no material evidence to show that he has failed to discharge his marital obligations. According to the prosecution version, accused No.1 was more dependant on his sister-in-law (accused No.3) and he was requesting her to serve lunch or dinner instead of his wife, such an incident cannot be termed as cruelty or harassment. There is no satisfactory evidence to prove that accused Nos.1 and 3 have conspired to cause harassment to the victim and have driven her to commit suicide. There are several discrepancies and variations in the evidence of P.W.1, 4, 5 and 11. There are material omissions in the evidence of P.Ws.1, 4 and 5. The evidence of prosecution witnesses do not make out a case of harassment. Thus, the accused are not responsible for the death of deceased- victim. The finding given by the trial Court convicting the 6 appellant-accused No.1 for the offence punishable under Section 498A of IPC is not proper and justified. Learned amicus-curiae further submitted that the provisions of the Probation of Offenders Act, 1958, is not at all considered by the trial court. If the court forms an opinion that it is expedient to release an offender for his good conduct, regard being had to the circumstance of the case, such circumstances cannot be sidelined in forming the said opinion. The nature of the offence would be relevant and hence Section 4 can be resorted to when it considers the circumstance of the case to be proper and suitable. In support of the contentions, learned amicus-curiae has relied on the following decisions: i. AIR2014SC331in the case of Pinakin Mahipatray Rawal v. State of Gujarat.
6. Per contra, learned HCGP has submitted that P.Ws.1, 4 and 5 have consistently stated about the harassment caused by accused Nos.1 to 3 to the victim-Mamatha for silly reasons. Appellant-accused No.1 has also meted out cruelty by assaulting the victim at the instigation of accused Nos.2 and 3. Their evidence 7 cannot be discarded only on the reason that they are close relatives of deceased-victim. It is only on account of the harassment and cruelty meted out by accused, the victim has committed suicide. The finding given by the trial Court convicting the accused No.1 for causing harassment is proper and justified. There are no grounds to set-aside the well-reasoned order.
7. In view of submission made by learned amicus-curiae and learned HCGP, the only point that would arise for consideration before this Court would be: “Whether the trial Court was justified in convicting appellant-accused No.1 for the offence punishable under Section 498A of IPC?.
8. The charge sheet was filed for the offence punishable under Sections 306 and 498A of IPC. The trial Court, on analysis of the entire evidence, has arrived at a factual finding that the prosecution has failed to establish the offence punishable under Section 306 of IPC, but has held the appellant-accused No.1 guilty for the offence punishable under Section 498A of IPC. The State or 8 the complainant has not preferred the appeal against the finding of the trial Court for the offence punishable under Section 306 IPC.
9. The present appeal is only against the finding and order of conviction for the offence punishable under Section 498A of IPC.
10. In order to ascertain whether the finding given by the trial Court in holding the appellant-accused No.1 guilty for the offence punishable under Section 498A of IPC, this Court has re- examined the entire evidence by having cursory look at the evidence of prosecution witnesses.
11. P.W.1, who is the father of the victim, has stated in his examination-in-chief regarding the harassment caused by accused Nos.1 to 3. He has stated that accused No.1 was not talking to his wife properly, he was requesting his sister-in-law to serve the food and also to do other works for him and he was also assaulting her at the instigation of his mother and sister-in-law. On 28.08.2007 night at about 8:00 p.m. his daughter came along with child and informed that accused Nos.1 to 3 are quarreling with her for silly 9 reasons and causing harassment. Thereafter, on 01.09.2007, she has consumed poison in their farm house. In the cross-examination, P.W.1 has stated that accused No.1 was residing along with his wife in their house for about two years and has admitted that he has not stated anything in the complaint about the request made by accused No.1 to his sister-in-law to serve the food and attend all his works. It is also not mentioned in his complaint regarding the harassment caused by accused persons by commenting on the dark complexion of the victim and also wasting firewood. This witness has admitted that in his statement recorded by Tahasildar at the time of inquest mahazar it is mentioned that his daughter and her husband-accused No.1 were leading marital life happily and they were frequently visiting their house, but has further voluntarily stated that he do not remember as to what he has stated in the statement before the Tahasildar. This witness has not at all stated about the extra marital affair of accused No.1 with his sister-in-law.
12. P.W.4, the mother of the victim, has also given the similar version about the harassment and cruelty meted out by the 10 accused to her daughter. Further, she has stated that there was extra marital relationship between accused No.1 and accused No.3 viz., sister-in-law of accused No.1, as such, he was always dependent on the said lady and he was neglecting his wife Mamatha. Despite knowing the said relationship, she had tolerated for almost three years. Further, she has stated that two days prior to committing suicide, the victim had come to her parents house and informed about the comments made by accused No.1 that she looks like a black monkey and assault done by him. In the cross-examination P.W.4 has admitted that brother of accused No.1 died six months prior to the suicide committed by the victim. Both accused No.1 and the victim were residing in the house of the complainant till the death of Sri.Siddegowda, the brother of accused No.1. Under such circumstances, there was no contact whatsoever between accused No.1 and his sister-in-law. Further, she has admitted that in a statement given before the Tahasildar, she has not mentioned about the harassment done by accused by commenting that her daughter looks like a black monkey. Further, she has denied the suggestion that she has not given the statement 11 before the Tahasildar regarding the extra marital affair between accused No.1 and accused No.3.
13. It is pertinent to note that the marriage of the victim with accused No.1 had taken place in the year 2003. After the marriage, both of them were residing in the house of the complainant for more than two years and there was no harassment or cruelty whatsoever during the said period. When accused No.1 was residing in the house of the complainant along with his wife, there was no occasion for him to have illicit relationship with his sister-in-law, who was residing in a different village.
14. The evidence given by P.W.4 regarding the harassment and cruelty meted out to her is not found in her statement recorded under Section 161 Cr.P.C. before the Police or the statement given before the Taluka Executive Magistrate at the time of inquest mahazar. Thus, her evidence about the harassment caused by accused No.1 appears to be an after thought and a false allegation.
15. P.W.5 is the sister of the deceased, she has given similar evidence stating that accused No.1 was physically and 12 mentally harassing his sister. The victim had told to her mother about the illicit relationship between accused No.1 and accused No.3. In the cross-examination, P.W.5 has admitted that after the death of brother of accused No.1, both victim and her husband had gone to their native village six months prior to committing suicide by the victim and they were frequently visiting their house.
16. The evidence of P.W.5 do not inspire confidence to believe her version regarding the harassment caused by accused No.1 as she has not stated anything before the Police while recording statement under Section 161 Cr.P.C.
17. P.W.2 is the panch witness for spot mahazar, who has stated about the seizure of Ex.P-3 death note. P.W.6 is the witness for inquest mahazar conducted by the Tahasildar. He admits the suggestion that accused No.1 and his wife were residing in the house of P.W.1 and they were leading cordial life.
18. P.W.7 and 8 are said to be the circumstantial witnesses. Both these witnesses have not supported the case of the 13 prosecution. P.W.7 has stated that he has not given the evidence as per Ex.P-5. P.W.8 has not given statement as per Ex.P-6 before the Police.
19. P.W.12 is the Taluka Executive Magistrate, who has conducted the inquest mahazar of the victim. He has stated about the mahazar conducted in the presence of parents of the deceased and the statement given by them. In the cross-examination, P.W.12 has stated that as per the statement given by the parents, both accused No.1 and victim were residing in the house of the complainant and there was a cordial relationship between them. Further, he has admitted that the parents of the victim viz., P.Ws.1 and 2, have not stated about the assault and abuse done by accused Nos.1 and 3 and mother of the victim P.W.4 has not given statement about the illicit relationship between accused Nos.1 and 3.
20. P.W.13 is the Investigating Officer. He has stated in his examination-in-chief that the death note produced by the 14 complainant at the time of spot mahazar was seized by him. The said evidence is contrary to the evidence of P.W1. In the cross-examination, P.W.13 has admitted that P.Ws.5 and 6 have given statement that after the marriage both accused No.1 and victim were residing in the house of P.W.1-complainant. He has stated that P.Ws.7 and 8 have given the statement as per Exs.P-5 and P-6. He has also admitted that P.W.4 has not disclosed about the illicit relationship between accused Nos.1 and 3.
21. In the present case, P.Ws.4 and 5 have tried to project the story that accused No.1 was having extra marital relationship with his sister-in-law. Thus, it is necessary to ascertain whether such relationship was there between accused No.1 and accused No.3, and if so, whether that was the reason for the suicide committed by the victim.
22. In a decision reported in AIR2014SC331in the case of Pinakin Mahipatray Rawal v. State of Gujarat, the Hon’ble Supreme Court has held in paragraph Nos.18, 19, 21 and 22 as under: “18. Marital relationship means the legally protected marital interest of one spouse to another 15 which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on. Extra-marital relationship as such is not defined in the IPC. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the explanation to Section 498- A and that A-1 had abetted the wife to commit suicide. We have to examine whether the relationship between A-1 and A-2 amounted to mental harassment and cruelty.
19. We have to examine the correctness or otherwise of the findings recorded by the trial Court, affirmed by the High Court, as to whether the alleged relationship between A-1 and A-2 has in any way constituted cruelty within the meaning of explanation to Section 498A IPC. The facts in this case have clearly proved that the A-1 has not ill-treated the deceased, either physically or mentally demanding dowry and was living with A-1, in the matrimonial home till the date, she committed suicide. Cruelty includes both physical and mental cruelty for the 16 purpose of Section 498A. Section 498A IPC reads as under :- “498A. Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever, being the husband or the relative of the husband of a 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 purposes of this section," cruelty" means- (a) any wilful 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.
21. In Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC619 this Court held that the concept of cruelty under Section 498A IPC and its effect under Section 306 IPC varies from individual to individual 17 also depending upon the social and economic status to which such person belongs. This Court held that cruelty for the purpose of offence and the said Section need not be physical. Even mental torture or abnormal behavior may amount to cruelty or harassment in a given case.
22. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to “cruelty”, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life. We, on facts, found that the alleged extra marital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal 18 circumstances, would drive the wife to commit suicide.
23. In the present case, P.W.1 has only stated about the harassment caused by accused for silly reasons but he has not stated about the extra marital relationship between accused Nos.1 and 3, whereas P.Ws.4 and 5 viz., mother and sister of the victim, have stated about the extra marital relationship between the accused No.1 and his sister-in-law. It is pertinent to note that accused No.1 had no occasion to stay in his parents house or his sister-in-law as he was residing with his wife in the house of P.W.1 for more than two years. It is only when his brother Sri.Siddegowda expired, accused No.1 has gone to his parents house along with his wife. As such, accused No.1 was not at all in contact with his sister-in-law, but P.W.4 has stated in her evidence that his victim-daughter was knowing the relationship between accused Nos.1 and 3 but she has tolerated the same for more than three years. The said version cannot be believed. 19
24. The trial Court, relying on the evidence of P.Ws.1, 4, 5 and circumstantial evidence of P.W.6, has come to the conclusion that there is a scanty evidence as against accused Nos.2 and 3 regarding the instigation caused by them to accused No.1 to cause mental and physical harassment to the victim. Further, the trial Court on relying to Section 3 of Protection of Women from Domestic Violence Act, 2005, and the principles of gender justice, has made observation that on account of the comments made by accused No.1 that his wife viz., victim, looks like a black monkey and other physical and mental harassment caused, the victim has returned to her parents house, but there is no explanation from accused No.1 that under what circumstance the deceased Mamatha had gone to her parental house on 29.08.2007 that too at night hours and what steps were taken by the accused to get her back till she committed suicide on 01.09.2007. With this reasoning the trial Court has come to the conclusion that accused No.1 has caused both physical and mental cruelty to deceased Mamatha, which compelled her to commit suicide. On re-appreciation of the entire evidence placed on record, this Court is of the view that there is no convincing or clinching 20 evidence to prove that accused No.1 has caused physical and mental harassment. The evidence placed on record is short of required standard of proof. The trial Court has not properly appreciated the evidence of prosecution witnesses viz., P.Ws.1, 4, 5 and 6, which does not demonstrate the unqualified clarity in respect of the role played by the accused in causing harassment to the victim. Hence, the finding given by the trial Court holding the appellant-accused No.1 guilty for the offence punishable under Section 498A is not proper and justified.
25. As pointed out by the learned amicus curiae for the appellant-accused No.1 the Courts dealing with the criminal cases should, after convicting the accused shall make an endeavour to ascertain about the applicability of the provisions of the Probation of Offenders Act, whether a submission is made to that effect or not, by the accused. Reasons must also be assigned if the provisions of the said Act are not made applicable to the case. Since this Court has reversed the finding of the trial Court holding the accused No.1 guilty, the application of Probation of Offenders Act would not arise. 21
26. For the foregoing reasons, this Court proceeds to pass the following: ORDER
i. The appeal is allowed. ii. The judgment and order of conviction dated 29.01.2011 passed in S.C.No.107/2010 on the file of Principal District and Sessions Judge, Chitradurga, convicting the appellant-accused No.1 for the offence punishable under Section 498A IPC is set-aside and the appellant-accused No.1 is set at liberty. Since the accused is on bail, he shall be discharged on bail bonds. This Court would like to place the appreciation on record for the assistance of learned amicus-curiae representing the appellant-accused No.1. The Registry is directed to pay honorarium of Rs.10,000/- (Rupees Ten Thousand only) to Sri Amith Deshpande, learned Amicus Curiae representing the appellant. Sd/- JUDGE BSR