G Udaya Kumar @ Uday vs State of Karnataka

N. Ananda, J.—The appellant (hereinafter referred to as accused) was tried and convicted for offences punishable under Sections 498A and 306 IPC. Therefore, he is before this court. The appellant is represented by Sri. C.R. Abdul Rasheed. The learned counsel for appellant is absent.

In Criminal Appeal No. 1680/2013 dated 07.10.2013 (in the case of Surya Baksh Singh Vs. State of Uttar Pradesh), the Supreme Court has held:-

(a) That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; (b) That the Court is not bound to adjourn the matter if both the Appellant or his counsel/lawyer are absent; (c) That the Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (d) That it can dispose of the appeal after perusing the record and judgment of the trial court. (e) That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (f) That if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation.

I have heard learned State Public Prosecutor for the State on merits of the appeal.

In brief, the case of prosecution is as follows:

The accused had married deceased Shyamala about three years prior to 04.07.2003. PW. 2-Lingaiah and PW. 4- Channajamma are the parents of deceased. After the marriage, accused and deceased were cordial for a period of two years and they had a child by their marriage. The deceased was working in a garment factory. The accused was suspecting the character of deceased. He was frequently scolding and abusing her that she had illicit relationship with some other person. The deceased informed the same to her parents. The accused did not mend his behavior. He was bent upon harassing and abusing the deceased. On 04.07.2003, at about 9.00 p.m., in the house of accused, accused abused the deceased with filthy language and told her that he would not wish to see her face. The deceased not being able to bear the cruelty meted to her, doused kerosene and set herself on fire. The accused shifted and admitted her in Victoria Hospital at Bangalore. On receipt of medico-legal report, PW. 12-S.M. Prabhudevaiah, the then ASI of Byatarayanapura Police Station came to Victoria hospital and enquired PW. 9-Dr. K.V. Sujatha about physical and mental condition of the deceased. PW. 9-Dr. Sujatha who was treating the deceased had examined the deceased and opined that deceased was in a fit condition to give her statement. Therefore, PW. 12 recorded the statement of deceased and registered Crime No. 308/2003 for an offence punishable u/s 498A IPC. On 23.07.2003, the deceased succumbed to burn injuries. The postmortem examination conducted by PW. 1-Dr. P.K. Devadas would reveal that death was due to Septicemia consequent to burn injuries. After the death of deceased, her father gave further statement and an offence u/s 306 IPC was included.

In this appeal against judgment of conviction for offences punishable under Sections 498A and 306 IPC, following points would arise for determination:

1) Whether the prosecution has proved that accused was harassing, abusing and humiliating the deceased by suspecting her chastity and character, thereby committed an offence punishable u/s 498A IPC?''''

2) Whether the prosecution has proved that on 04.07.2003 at about 9.00 p.m., in the house of accused, accused scolded the deceased stating that she is a woman of lose character and he would not wish to see her face, with such intention and knowledge that such utterances would cause mental cruelty to deceased and she is likely to commit suicide, and the deceased not being able to bear cruelty meted to her, committed suicide thereby, accused committed an offence punishable u/s 306 IPC ?

3) Whether the learned trial judge has properly appreciated the evidence on record ?

4) To what order?

In order to bring home the guilt of accused, the prosecution has relied on the following:

I Dying declaration of the deceased

II Oral evidence of parents and close relatives of deceased and neighbors of the deceased

The dying declaration of deceased (marked as Ex. P9) was recorded by PV/.12-S.M. Prabhudevaiah, who at the relevant time was working as Assistant Sub-inspector in Byatarayanapura Police Station.

PW. 12 has deposed; that on 04.07.2003 at about 8.00 p.m., he received a phone call from Victoria Hospital Outpost Police Station that one Shyamala with burn injuries has been admitted to Victoria Hospital and she is being treated in the Burns Wart at Victoria Hospital. After receiving information about admission of the deceased in burns ward, PW. 12-S.M. Prabhudevaiah and PW. 13-P. Ramu (H.C. 1809) rushed to Victoria Hospital at about 1.30 a.m. (during intervening night of 04/05.07.2003). PW. 12 met PW. 9-Dr. K.V. Sujatha who was the in-charge Doctor and informed her that he would record the statement of deceased. They went to the burns ward. The deceased was in a fit condition to narrate the events but slowly. PW. 12 recorded the statement of deceased, which revealed that accused was constantly harassing and humiliating her by scolding the deceased that she was a woman of lose character; on the date of incident at about 7.00 p.m., accused had scolded the deceased that she is not chaste and he would not wish to see her face; the deceased became disgusted in life, doused kerosene and set herself on fire.

PW. 9-Dr. K.V. Sujatha has deposed; that on 04.07.2003 while she was in Casualty Ward of Victoria Hospital, one Udayakumar said to be the husband of Shyamala brought her for treatment with the history of burns. PW. 9 examined the deceased who had suffered burn injuries. The deceased was conscious, oriented and was able to speak. PW. 9 enquired the deceased about cause for burns. The deceased told her that she doused kerosene and set herself on fire. The deceased was admitted in burns ward. PW. 9 had noted the contents of history of injuries in the MLC register (marked as Ex. P8). The contents of Ex. P8 would reveal that deceased has stated that she doused kerosene on herself and set herself on fire at 10.30 p.m., on 04.07.2003. There are no reasons to suspect the contents of extract of MLC register.

P.W. 9 has deposed; at about 1.30 a.m., (during intervening night of 04/05.07.2003, the Head Constable (PW. 13) and ASI (PW. 12) came to the hospital and enquired PW. 9 whether deceased was in a fit condition to give her statement; she accompanied PW. 12 to burns ward and examined the deceased and certified about consciousness, orientation and fitness of the deceased to give her statement.

PW. 9 has deposed that deceased gave statement:- that accused had married her about two years prior to the date of incident, they have a male child by their marriage; since the date of marriage, accused was suspecting the fidelity of deceased and he was abusing her in filthy language; the accused was also assaulting the deceased; on 04.07.2003 at about 9.00 p.m., the accused assaulted the deceased and abused her in a filthy language and asked her not to show her face to him and left the house; the deceased on hearing abuses of her husband became disgusted in life and doused kerosene and set herself on fire. PW. 12 recorded the dying declaration (marked as Ex. P9)

The contents of Ex. P9 (dying declaration) would reveal that accused was scolding the deceased as prostitute, and he was frequently assaulting her. The accused was scolding the deceased that she had a paramour. On 04.07.2003, at about 9.00 p.m., accused scolded the deceased that she was a prostitute, she was going with her paramour on the pretext of going to work, he would not wish to see her face and asked her to go away from the place. The deceased became disgusted in life. The deceased not being able to bear mental and physical cruelty meted to her by the accused doused kerosene and set herself on fire. The statement of deceased was recorded in the presence of PW. 9.

When the statement of deceased was recorded at about 1.30 p.m., (during intervening night of 0.4/05.07.2003) except deceased, PW''s. 9, 12 and 13, there was none else. The close relatives of the deceased had come to hospital on the following day morning. Therefore, it can safely be held that there was none to tutor the deceased. Above all, PW. 9-Dr. Sujatha, PW. 12-S.M. Prabhudevaiah (ASI) and PW. 13-P. Ramu (Head Constable) did not know the accused. They had no motives to falsely implicate the accused.

The deceased succumbed to burn injuries on 22.07.2003. She was alive for a period of 15 days. In the circumstances, there are no reasons to suspect the evidence of PW. 9 and PW. 12 and contents of statement of the deceased (dying declaration marked as Ex. P9).

PW. 2-Lingaiah and PW. 4-Channajamma (the parents of deceased) have given consistent evidence that accused and deceased were cordial for a period of one year; they had a male child by their marriage; they learnt that deceased had set herself on fire and suffered burn injuries and she had been admitted to Victoria Hospital at Bangalore; they reached the Victoria Hospital and enquired the deceased. The deceased told PW. 4 saying; accused had scolded her saying "Loafer, Munde, prostitute" etc; the accused also scolded that she had gone with her paramour; the accused assaulted her; the deceased not being able to bear mental and physical cruelty meted to her by the accused, doused kerosene and set herself on fire.

During cross-examination of PW. 4, it is elicited that deceased and accused had fallen in love before their marriage and their marriage was a love marriage. The parents of deceased had not attended the marriage. The marriage of deceased with accused was against their wish.

During cross-examination of PW. 4, it was suggested to her that deceased used to be under spell of devil when she was treated by a Mantravadi. PW. 4 had denied the suggestion. These suggestions are mere imaginations, therefore, they cannot be accepted.

PW''s. 2 and 4 have admitted that accused had not demanded dowry at the time of marriage. They have not given exaggerated version. They have deposed about what they had seen and learnt from the deceased. There are no reasons to suspect the evidence of the parents of deceased.

PW 3-Sarojamma is a Land Lady of the house in which accused and deceased were living as tenants. She has not supported the case of prosecution. Therefore, she was declared as hostile witness.

It is not unusual to find independent witnesses turning hostile. However, that cannot be a ground to suspect the evidence of close relatives of the deceased and statement made by the deceased.

In the discussion made supra, I have held that the statement given by deceased would prove that accused was subjecting the deceased to cruelty and before the incident. The accused had subjected the deceased to physical and mental cruelty with knowledge and intention that such cruelty is likely to drive the deceased to commit suicide. The accused was subjecting the deceased to mental cruelty by scolding her that she was a prostitute and she had a paramour and she was going to work only for the purpose of meeting her paramour. The conduct of accused frequently abusing and assaulting the deceased and demanding her to get away from his house would constitute an offence_ punishable u/s 498A IPC.

The accused had fallen in love with the deceased and they had undergone love marriage against the wishes of their parents. Thereafter, accused used to ill-treat the deceased and scolding her that she was a prostitute and she was going to work to meet her paramour. The accused was frequently insulting and assaulting the deceased and had made her life miserable. The deceased could not go back to her parents because she had married the accused against the wishes of her parents. The deceased could not stay with the accused because the accused who had loved and married her, was frequently suspecting her character and scolding that she was a prostitute and she had a paramour and she was going to work only to meet her paramour. The accused had scolded the deceased that he would not wish to see her face and accused was also beating the deceased. She was totally non placed. She could not go back to her parents and she could not live with her husband. The deceased left with no alternative had committed suicide.

In the circumstances, learned trial Judge was justified in holding the accused guilty of offences punishable under Sections 498A and 306 IPC. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.