Arali Nagaraj, J.
1. The accused in Sessions Case No. 6/2007 on the file of the learned Presiding Officer, Fast Track Court-II, Mysore, (hereinafter referred to as 'Trial Court' for short), has challenged the correctness of the judgment and order of conviction and sentence dated 20th November 2007 passed in the said case convicting him for the offences under Sections 498-A and 306 of I.P.C.
2. Heard the arguments of Sri. S.G. Rajendra Reddy, learned Counsel for the appellant-accused and Sri. Satish R. Girji, learned High Court Government Pleader for respondent-State. Perused the impugned judgment and order of conviction and sentence and also the entire material found in original records obtained from the Trial Court.
3. On appreciation of oral evidence of PWs 1 to 14, documents at Ex.P1 to P10 and M.Os. 1 to 12, the Trial Court, convicted the appellant-accused for the said offences and imposed sentence as stated in the impugned order of sentence.
4. Sri. S.G. Rajendra Reddy, learned Counsel appearing for appellant-accused strongly contended that the Trial Court committed serious error in recording its finding that the prosecution established beyond reasonable doubt its case for the offences under Sections 498-A and 306 of IPC inasmuch as the evidence of PWs 1 to 3, 6,7 and 10 does not establish that the accused subjected the deceased Smt. Naveenakumari to cruelty of such a nature as defined in Clause (a) or (b) of Explanation to Section 498-A of IPC.
5. As against this, learned High Court Government Pleader, strongly contended that, though there are some discrepancies in the evidence of PWs 1 to 3, 6 and 10, in substance, their evidence clearly establishes that the appellant-accused subjected his deceased wife Smt. Naveenakumari to cruelty suspecting her chastity and fidelity and therefore, the Trial Court is quite justified in convicting the accused for the offence under Section 498-A of IPC. He further submitted that since the cruelty of the nature as defined under Section 498-A is one of the ingredients of Section 306 of IPC, presumption under Section 113-A of the Evidence Act has to be drawn against the accused and therefore, conviction of the accused for the offence under Section 306 also does not deserve to be interfered with in this appeal.
6. The facts that the deceased Naveenakumari, the third daughter of PW1-Sannaiah and PW3-Smt. Jayalakshmi was given in marriage to the accused as his second wife after the death of his first wife and that after the said marriage, she started living with him and thereafter, on 13.8.2006 at about 6.00 p.m., she died as a result of hanging in the house of the accused are not in dispute.
7. As to the ill-treatment alleged to have been given by the accused to his deceased wife, the prosecution has placed reliance on the evidence of PWs 1 to 3, 6, 7 and 10. Of these witnesses, PW7- Maraiah has turned hostile to the prosecution and has not supported its case as to the ill-treatment alleged against the accused.
8. PW1 Sannaiah, the father of the deceased, has stated in his evidence that, after her marriage with the accused, she was treated by the accused cordially for a period of one year only and thereafter, he started assaulting and abusing her under the influence of liquor suspecting her fidelity. He has further deposed that a panchayat was convened in the village in respect of the ill-treatment by the accused to the deceased and thereafter, since PW7- Maraiah informed him that the accused had left consuming alcohol and therefore, he would treat the deceased properly, the sent his daughter to the house of the accused. He has further deposed that about 1 1/2 months after he sent his daughter to the house of the accused, his second daughter, namely, PW2 Prema had been to the house of the accused and at that time, she was informed by the deceased that the accused was ill-treating her by beating under the influence of liquor suspecting her fidelity.
9. It is pertinent to note that though PW1 has stated in his evidence that a panchayat was convened in his village in respect of the ill-treatment alleged to have been given by the accused to the deceased and in the said panchayat, the elders advised the accused not to do so, none of the other prosecution witnesses has stated anything about the said panchayat. Besides this, though it is the evidence of PW1 that his another daughter PW2 Prema, had gone to the house of the accused about 1 1/2 months after deceased was sent to his house after advising him by the Panchayathdars, at that time, PW2 was informed by the deceased that she was ill-treated by the accused by beating under the influence of liquor suspecting her fidelity, PW2 Prema, has not stated anything about she going to the house of the accused at any time during the life time of the deceased and the deceased informing her about the said ill-treatment. What all she has stated in her evidence is that, about one year after the marriage of the deceased with the accused, she (the deceased) was being treated cordially by the accused and thereafter, he started ill-treating her by suspecting her chastity and whenever the deceased was visiting her (PW2's) house, she was informing her about the said cruelty meted out by the accused. The Trial Court has lost sight of these inconsistencies which go to the root of the prosecution case.
10. PW3 Jayalakshmi, the mother of the deceased, has stated in her evidence that, one year after his marriage with the deceased, accused started ill-treating the deceased under the influence of liquor and that once she had been to the house of the accused on a festival day and at that time, she saw the accused mercilessly assaulting the deceased and that, at that time, the mother of the accused advised her (PW3) that she should take the deceased to parental her house and therefore, she brought the deceased to her house and later on panchayat was convened to that effect. It is pertinent to note that though this PW3 further stated in her evidence that she informed the same to her husband PW1 Sannaiah, he has not stated anything as to these facts. The Trial Court has lost sight of this aspect of the evidence of PW3 also.
11. PW6 Siddaiah has stated in his evidence that whenever the deceased Naveenakumari was coming to her parental house, she was visiting him and at that time, she used to tell him about the cruelty meted out to her by her husband and on many occasions he had advised the accused that he should not beat her.
12. Further, PW10 Mahadevaiah has stated in his evidence that, only one year after his marriage with the deceased, the accused started making galata with her under the influence of liquor suspecting her fidelity. This evidence of PWs 6 and 10 does not in any way establish that accused treated the deceased with cruelty of such a nature as defined under Section 498-A of IPC.
13. Explanation to Section 498-A defines 'Cruelty' in two Clauses (a) & (b). Under Clause (b) 'Cruelty' means, harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet the said demand. It is pertinent to note that, it is not the case of the prosecution that the deceased was coerced by the accused to meet his unlawful demand for any property or valuable security. Therefore, Clause (b) of Explanation to Section 498-A has no application to the facts of the present case. Clause (a) of the said Explanation provides that, 'Cruelty' means, any will-full conduct which is of such a nature as is likely to drive the woman to commit suicide or cause grave injury or danger to life or health (mental or physical) of the women. In order to attract the definition of 'Cruelty' as defined in Clause (a), the prosecution must establish that the willful conduct of the accused in abusing or beating the deceased suspecting her fidelity was of such a nature, as was likely to drive the deceased to commit suicide.
14. The above evidence of PWs-1 to 3, 6 and 10 could not be taken to establish that the nature of the cruel treatment alleged to have been given by the accused to the deceased was of such a nature as likely to drive her to commit suicide. Therefore, I am of the considered opinion that the Trial Court was not justified in convicting the accused for the offence under Section 498-A of IPC.
15. Even if it is assumed that the cruel treatment given by the accused to the deceased falls within the definition of Clause (a) of Explanation to Section 498-A, that itself could not be sufficient to convict the appellant-accused for the offence under Section 306 of IPC for having abetted the committing of suicide by his deceased wife.
16. It is not in dispute that deceased committed suicide within seven years of her marriage with the accused. In order to draw presumption under Section 113-A of the Evidence Act, which provides for presumption as to abetement to commit suicide by a married woman says that 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 is shown that she committed suicide within a period of seven years from the date of her marriage and that her husband or other relative of her husband subjected her to cruelty, Court may presume 'having regard to all other circumstances of the case' that such suicide had been abetted by her husband or said relatives of her husband. Explanation to Section 113-A of the Evidence Act, provides that, cruelty for the purpose of said Section shall have same meaning as under Section 498-A of IPC.
17. From a careful reading of the above provisions of Section 113-A of Evidence Act, it could be seen that the words 'having regard to all other circumstances of the case' used therein make it clear that before drawing the presumption, the court has to see whether all the circumstances of the case, other than the factum of suicide by the deceased woman within 7 years of her marriage and her husband or any of his relatives subjecting her to cruelty of such a nature as defined Under Section 498-A IPC, justify the drawing presumption under the said section.
18. In the instant case, it has come in the evidence of PW1, the father of the deceased that the deceased had not given her free consent to her marriage with the accused for the reason that she was to marry him as his second wife, but PW 7 and others had compelled her to marry the accused and therefore, she ultimately, agreed to marry the accused. Besides this, though the prosecution case is that the accused used to ill-treat her suspecting her fidelity, no material, sufficient to hold that he was suspecting her fidelity is produced on record by the prosecution. Therefore, having regard to these circumstances, I am of the opinion that there would be no justification in drawing the presumption against the accused under Section 113-A of the Evidence Act. Therefore, even if it is held that there was some ill-treatment given by the accused to the deceased, the same was not of the nature as defined under Section 498-A of IPC and, the circumstances that she had not given her free consent to marry the accused but she was compelled to marry him and that the prosecution has not produced any material to hold that he was suspecting her fidelity, do not justify the drawing of presumption under Section 113-A of Evidence Act and to hold him guilty of the offence under Section 306 of IPC. Therefore, in my considered view, the Trial Court committed error in convicting the appellant -accused for the said offences. As such, the impugned judgment and order of conviction and sentence deserves to be set aside and accused deserves to be acquitted of the said offences.
19. For the reasons aforesaid, the present appeal is allowed. The impugned judgment and order of conviction and sentence dated 20th November 2007 passed by the learned Presiding Officer, Fast Track Court No. II, Mysore in Sessions Case No. 6/2007, convicting the appellant-accused for the offences under Sections 498-A and 306 IPC and sentencing him accordingly, is hereby set aside.
The appellant-accused is hereby acquitted of both the said offences. If any amount of fine is paid by him in compliance with the impugned judgment and order of conviction and sentence, the same shall be refunded.
Since the accused has been in prison, he shall be set at liberty forthwith, if he is not required to be detained in connection with any other case.
A copy of this order shall be sent forthwith to the Trial Court and another copy of it shall also be sent to the Superintendent, Central Prison, Mysore, for compliance.
The legal fees of Sri. S.G. Rajendra who has been appointed in this case as Amicus Curie is fixed at Rs. 5,000/- and the same shall be paid to him by the State.