Mallanna alias Mallikarjun vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned Government Pleader.

One Dasappa was the complainant. It was the allegation that his sister Kalavathi was married to the accused about five years prior to the complaint. Though initially his sister had a good marital life, it soon resulted in her continuous ill-treatment on the accusation that she was unable to cook well. It is alleged that she was ill-treated constantly and this was her complaint over the years whenever she visited her maternal home, according to the complainant. However, one year prior to the complaint, there was a conciliation meeting held at Doornahalli and when his sister was pregnant with a child, she was brought to the maternal home for her confinement and she was blessed with a female child. However, the accused and his family are said to have neglected her and did not choose to take her back to her matrimonial home and she had continued to stay with the complainant and his family. It is alleged that the accused would occasionally visit the deceased Kalavathi and even cohabited with her, for which reason she was again found to be pregnant while she was staying with the complainant and his family. On 31.03.2008, it was alleged that the accused visited the complainant''s house at 1.00 p.m. and he had picked up a quarrel with Kalavathi by the evening. But however, he had slept overnight in the house and on 1.4.2008 at about 5.00 a.m., it was noticed by the complainant that Kalavathi was retching and vomiting. When the complainant tried to elicit as to what was the matter, she was unable to speak and accused had hastily left the house. The complainant had then taken Kalavathi to a private hospital for treatment at about 8.00 a.m. But, Kalavathi is said to have expired. It was further alleged that the accused had been constantly ill-treating Kalavathi and it is for this reason that she had consumed insecticide and had died. It is on that basis that a case was registered in Crime No. 43/2008 for the offences punishable under Sections 498-A and 306 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC'', for brevity). After further investigation and during the course of investigation, on the basis of statements recorded, the accused was arrested on 5.4.2008 and later released on bail. On completion of investigation, the accused was charge-sheeted and thereafter the case was committed to the Court of Sessions. Charges having been framed against the accused, he had pleaded not guilty and he claimed to be tried. The prosecution had examined 14 witnesses and marked several exhibits, apart from material objects. On the basis of which, the court below had framed the following points for consideration:

"1. Whether the prosecution has proved that the accused being husband of deceased was ill-treating his wife Kalavati both physically and mentally and on 31.03.2008 during night hours in the house of parental house of deceased at Aralagundagi village, the accused administered poisonous insecticide to deceased Kalavati and while she was shifting to hospital for treatment on the way to Yedrame hospital, she succumbed to the injuries and thereby accused committed the offences punishable under Sections 498-A and 302 of India Penal code as alleged?

As to what order?

The court below found the accused to be guilty of the offences alleged and he was accordingly convicted. It is that which is under challenge in the present appeal.

The learned counsel for the appellant would point out that though it was true that the deceased Kalavathi was staying in her maternal home and that she had left the matrimonial home three years prior to her death, the further allegation that the accused was constantly visiting Kalavathi at her matrimonial home is false and incorrect. There is no evidence in this regard. The further allegation that there was constant humiliation and harassment both mentally and physically caused by the accused, therefore is a baseless statement and there is no independent evidence tendered in this regard. As could be seen, the evidence of the prosecution is confined to the statement of PW-1 who was a panch witness and a formal witness for the prosecution. PW-2 is again a panch witness. Whereas, PW-3 was the brother of the deceased Kalavathi who has claimed that though the deceased was not in a position to speak when he met her after the accused had left the house, she had later indicated to the said witness and also his parents that the accused had tried to throttle her and had forcibly administered the insecticide. Then he had immediately rushed her to hospital. But, she had died on the way to the hospital and thereafter he had lodged a complaint.; He has further stated that the accused was constantly demanding more dowry and ill-treated his sister. PW-4 was one of the panchayatdars who had tried to bring about a rapprochement between the accused and the deceased Kalavathi. PW-5 was yet another 1 Panchayatdar. PW-6 was the father of the deceased Kalavathi. PW-7 was the mother and PW-8 was the owner of a car which had been used to take Kalavathi to hospital after the alleged administration of insecticide by the accused. PW-9 was the Head Constable and PW-10 was the Medical Officer. PW-11 was the Tahsildar. PW-12 was a police constable. So also, PW-13 and PW-14 was a Police Sub-Inspector and the Investigating Officer.

Therefore, the learned counsel would point out that insofar as the allegation of cruelty being meted out to Kalavathi over the years, was not forthcoming from the evidence of these witnesses nor could it be said that the offence punishable under Section 306 was made out when there is no evidence of abetment to commit suicide as sought to be alleged and also ambiguously being claimed that the accused had forcibly administered poison, which in fact would amount to murder and since the complainant has made inconsistent statements, namely in the FIR has stated that his sister had consumed poison on account of the constant ill-treatment of the accused, whereas in the evidence before the court, he has coloured the version by stating that the deceased had revealed to him as to the accused forcibly having administered insecticide and also attempting to throttle her and thereafter trying to run away from there, which according to the complainant was informed by his parents to him. Though the incident is said to have been taken place at 5.00 a.m., Kalavathi is taken to hospital at 8.00 a.m., which also would indicate that the sequence of events as narrated, do not evoke the confidence of a natural response to a critical situation of somebody having been administered poison and being taken to hospital hours alter such administration. This would not be conducive to normal human conduct and therefore, would submit that the mere fact of Kalavathi having died on account of poisoning would not implicate the accused, as was sought to be made out by reference to the Medical Practitioner''s opinion.

It is also on record that there was no report by the Forensic Science Laboratory as to the presence of poison in the internal organs of Kalavathi. It was merely an opinion formed by the Medical Practitioner that has been executed by the court below. Even assuming that Kalavathi had died on account of poisoning, it is not established by the prosecution that the accused was responsible for having administered or having abetted the commission of suicide by Kalavathi and therefore, he would submit that the evidence on record does not indicate that the prosecution has brought home the charges against the accused beyond all reasonable doubt. Hence, he would submit that the findings of the court below in the face of such inconsistencies, is unsustainable and would have to be set aside and the accused be acquitted.

While the learned Government Pleader would seek to justify the findings of the Trial Court and would submit that the several witnesses, namely the witnesses who had participated at a Panchayath to bring about harmony in the matrimonial life of Kalavathi and the accused, were independent witnesses and they have asserted that case of the prosecution as to Kalavathi having been treated with cruelty by the accused and the evidence of the parents of Kalavathi as well as the complainant speak about the immediate acts of the accused in having quarrelled with Kalavathi and having forced her to consume poison, is sufficient evidence as held by the Trial Court to hold that the charges are proved beyond all reasonable doubt and therefore, seeks that the conviction be upheld and the appeal be dismissed.

However, it is the fact that Kalavathi has died in her maternal home and not in the home of the accused. The admitted statement that Kalavathi was living in her maternal home soon after the delivery of her first child, is not denied by the prosecution. The further circumstance that the accused continued to visit Kalavathi on and off and that on the fateful day, had stayed overnight and had administered poison or compelled Kalavathi to consume poison at 5.00 a.m. in the morning and thereafter having run away from the scene, is not clearly established. The complainant has merely stated that he was informed telephonically by his parents of the above acts of the accused and it is thereafter he had arrived at the scene to elicit further information from the deceased Kalavathi and though he had stated that she was not in a position to speak, he has gone on to say that Kalavathi was able to convey to him that the accused had tried to throttle her and thereafter had forcibly administered the insecticide, which is not supported by any independent witnesses of the accused having visited the house of the complainant and having stayed over night and also having picked up a quarrel with Kalavathi and thereafter having tried to throttle her in the morning and trying to administer poison or forcing her to consume poison. It is only the say of the complainant and the parents of the deceased which is to be accepted. The separation of accused and Kalavathi is however not in dispute. They were living apart. The fact that Kalavathi had died in her maternal home would require the prosecution to establish with more certainty that the sequence of events have unfolded in the manner sought to be made out by the prosecution and in respect of this, there ought to be other independent material which are not forthcoming. Therefore, the theory of the accused having come to the house of Kalavathi and thereafter having compelled her or having forced the insecticide to be consumed by her is a circumstance which cannot be said to have been established beyond all reasonable doubt.

Insofar as the cruelty meted out to Kalavathi, is again not established merely on the evidence of the panchayatdars who may have at a point of time, sought to bring about a conciliation in the broken marriage of the accused and Kalavathi. The further allegation of abetment of suicide would also not hold water, as the ingredients of such abetment to commit suicide are not forthcoming in the material that is available on record. Consequently, it cannot be said that the court below was justified in holding that the prosecution had established its case against the accused for offences punishable under Section 498-A and Section 306 of the IPC.

In the result, the appeal is allowed. The judgment of the court below is set aside. The accused is acquitted. The fine amount if any shall be refunded to the appellant.