Chandra @ Chandrashekara vs The State

A.S. Pachhapure

The appellant has challenged his conviction and sentence for the offence punishable under Sections 498-A and 306 I.P.C. on a trial held by the Fast Track Court, Mysore. The facts relevant for the purpose of this appeal are as under:

The appellant who is the third accused before the Trial Court married Radha (the deceased) on 30-03-2000. After the marriage, she went to the house of the accused to lead marital life. The appellant herein was an autorickshaw driver and it is stated that he was in the habit of consuming liquor and abusing and assaulting his wife now and then and it is on 27-07-2000, i.e., within four months of the marriage, Radha committed suicide by hanging herself in the house of the appellant. Her death information was sent to her parents PWs.1 and 2 and the Police registered UDR No. 36/2000 and PW. 11 the Taluka Executive Magistrate held the inquest proceedings as per Ex.P.7 and during the course of the enquiry, recorded the statements of PWs.1 and 2. and it revealed that the deceased was subjected to cruelty and harassment by her husband, the appellant herein, mother-in-law (the first accused), the brother-in-law (the second accused) and it is in these circumstances that a crime came to be registered against the appellant and two other accused for the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act and Sections 493-A, 306 and 304-B read with 34 I.P.C. During the course of the investigation, the statements of the witnesses were recorded, the spot mahazar Ex.P.3 was held, the dead body was sent for post-mortem examination and after collecting the relevant records, a chargesheet came to be filed against the appellant and two other accused for the aforesaid offences.

During the trial, the prosecution examined 14 witnesses and in their evidence got marked the documents Exs.P. 1 to P. 13 and MO. 1. The statement, of the accused were recorded u/s 313 Cr.P.C. They took the defense of total denial. They have not lead any defense evidence, but got marked, the documents Exs.D. 1 and D.2 the contradictions in the statement of PW. 8. The Trial Court after hearing the parties and on appreciation of the material on record acquitted accused 1 and 2 and convicted accused No. 3 (the appellant herein) for the offence punishable u/s 498-A and 306 I.P.C. Aggrieved by the conviction and the sentence, the present appeal has been filed.

I have heard the learned counsel for the appellant, and the learned High Court Government Pleader. The point that arise for my consideration is:

Whether the appellant has made out any grounds to warrant interference in the conviction and sentence for the offence punishable under Sections 498-A and 306 I.P.C.?

The appellant has been acquitted of the charges both under Sections 3 and 4 of the Dowry Prohibition Act and also Section 304-6 I.P.C. Therefore, the question that arises for consideration would be with regard to subjecting the deceased to cruelty and harassment as envisaged u/s 498-A I.P.C. and whether there was any instigation by the appellant to the deceased to commit suicide ''?

On this aspect of the matter, I have scrutinised the material placed on record by the prosecution and it is the submission of the learned counsel for the appellant that the evidence of interested witnesses has been relied upon by the Trial Court which has not been corroborated by material particulars and that there are serious lacunae in the investigation of the prosecution which have been ignored by the Trial Court and therefore, it is his contention that the conviction and sentence ordered by the Trial Court is both erroneous and illegal. Per contra, the learned High Court Government Pleader has supported the judgment and order of conviction and sentence.

From the two sets of allegations against the appellant, one is that, he used to consume liquor, return to the. house and abuse and cause assault on his wife. The second allegation is that Radha (the deceased) was not given food and clothes at the time, when she was taking bath and she was subjected to cruelty and harassment. To prove the cruelty, harassment and instigation, the prosecution relies upon the evidence of PW. 1 the mother of the deceased and PW.2 the father of the deceased. Infact, PWs.1 and 2 also come from a very poor family. PW.2 was selling tender coconut and earning Rs. 20-30 per day and he had put-up a shed in Government site and residing with his wife and children. At the time of the marriage, it is claimed that an amount of Rs. 30.000/- was spent by PW.2 and both PWs.1 and 2 state in their evidence that the appellant was consuming liquor and was abusing and assaulting his wife and therefore, he claims that the appellant is responsible for the death of Radha (the deceased).

It is well established principle of law that in respect of the offences under Sections 498-A and 306 I.P.C. it is necessary to corroborate the evidence of interested witnesses, more particularly, the patents of the deceased as they have lot of interest in the deceased and feel very bad due to the death of their daughter. So far as the habit of the appellant, in consuming the liquor, except PWs. 1 and 2, no other witnesses have said anything before the Court. The prosecution examined PW.3 who is a family friend of PW.2 and PW.5 who is the mother of PW.2 and grand mother of Radha the deceased. These two persons though are acquainted with the family of the appellant, had not spoken about the habit of the appellant in consuming liquor. They state that the members of the family of the accused were not providing food and clothes at the time when she was taking bath. In fact, no woman would expect anyone or her husband to provide the clothes, when she is taking the bath, as she attends the bath room with all the arrangements for taking the bath. But any how; there is no consistency with regard to this cruelty and harassment in the evidence of PWs. 1 and 2, on one side and the evidence of PWs.3 and 6 on the other.

It is the defense of the accused that Radha (the deceased) was suffering from abdominal pain. She was treated in the hospital. It is the contention of the learned counsel for the appellant that it may be due to the abdominal pain that the deceased might have committed suicide. The fact that the deceased was suffering from abdominal pain is admitted by PWS. 1 and 2. But any how, the Trial Court has not accepted this contention, as the accused has not produced relevant documents regarding the nature and ailment of the deceased.

Furthermore, as could be seen from the evidence of PW.4, the attesting witnesses for the spot mahezar. he states in his evidence that at the time of the mahezar Ex.P.3 the Police seized the chits and that he does not know the contents of the said chits.

PW.6 is the Doctor who immediately attended the deceased after she was brought to the hospital. It is he who has issued Exs.P.4 and P.5. In Ex.P.5, there is a reference that there was a chit in the clothes of the deceased and the same was entrusted to the Police Officer. This chit has not been produced by the prosecution and no explanation has been offered for its non-production.

It is relevant to note that in the cross examination of PW.2 the fattier of the deceased, a question was posed with regard to the chit and he sates in his evidence that the police officer showed him the chit and as he did not have the spectacles, he was not able to read and find out as to whether it was the hand writing of the deceased and that the police officer explained the contents stating that there is a mention in the chit that the deceased committed suicide on her own and no other person is responsible for her death. So, this is a clear admission of PW.2. so far as the contents of the chit are concerned. In case, if the chit was in favour of the prosecution, it could have been produced by the Investigating Officer. Suppression of material document leads to an adverse inference that the contents must have been against the prosecution and the. prosecution has suppressed the document as it is adverse to its interest.

It is not in dispute that Radha (the deceased) had studied upto PUC and therefore, she must have left a chit before her death as to what was the real cause for her death could have been very much made known, in case, if the chit was produced before the Court and admitted in evidence. So taking into consideration this defense of the accused, it probabalises the defense and thereby, raises a serious doubt with regard to the case of the prosecution. In the absence of corroboration, the evidence of PWs. 1 and 2 alone cannot be accepted. So also, it is inconsistent with the evidence of PWs.3 and 5. What PWs.3 and 5 state is not stated by PWs. 1 and 2 and what PWs. 1 and 2 state is not stated by PWs.3 and 5. In the circumstances, the uncorroborated testimony of the interested version itself is not sufficient to conclude that the deceased was subjected to cruelty and harassment. The Trial Court: has relied upon the interested version and did not draw adverse inference as the chit was not produced by the prosecution. If it had bestowed its attention towards the uncorroborated testimony of PWs. 1 to 3 and 5, and the fact that the chit was not produced by the prosecution, it could have conic to the conclusion that there is a serious doubt with regard to the complicity of the accused in the crime.

In the circumstances, I am of the opinion that the Trial Court committed an error in awarding the sentence for the offence under Sections 498-A and 306 IPC. In the circumstances, I answer the point in affirmative and proceed to pass the following:

ORDER

The appeal is allowed. The conviction of the appellant for the offence punishable under Sections 498-A and 306 IPC and the sentence thereon is set aside. He is acquitted of the said charges. The bail bonds of the appellant arc cancelled. Fine, if any deposited shall be refunded to the appellant. Initially for the absence of the counsel for the appellant. Smt. Sinchana, Adv. was appointed as Amicus Curiae and she had prepared for arguments today. But, as the counsel for the appellant was made available, some fees will have to be paid to the Amicus Curiae, for preparation of arguments. Hence, the fees of the Amicus Curiae is feed at Rs. 2,500/- and the State shall pay the same.