Rajappa @ Raju vs State By Lingasuguru P.S Lingasuguru, Raichur District

Anant Ramanath Hedge J

The appellant/accused No.1 in Sessions Case No.130/2014 on the file of II Addl. District and Sessions Judge, Raichur who is tried for the offences punishable under Sections 302 and 498A of the Indian Penal Code (for brevity hereinafter referred to as the 'IPC' for short) is convicted and sentenced to life imprisonment for the offence punishable under Section 302 of IPC and sentenced to fine of Rs. 20,000/-. For the offence punishable under Section 498A of IPC the accused is sentenced to undergo rigorous imprisonment for two years and imposed a fine of Rs. 2,000/-. In the said judgment it is further held that the aforesaid sentence shall run concurrently and the period in which he was in judicial custody is ordered to be set off. Aggrieved by the said impugned judgment the accused No.1 is in appeal challenging the same by urging various grounds.

The accused No.2 and accused No.3 are the parents of accused No.1. They are acquitted for the charges leveled against them.

The case made by the prosecution in the complaint registered before Lingasugur Police Station, based on the complaint of the father of the victim Chennabai can be summarized as under:-

The complainant has got two sons and four daughters and the deceased is the elder daughter and she was married to accused No.1. The accused No.1 is addicted to alcohol and gambling and used to abuse and assault Chennabai being fed up with the attitude of her husband Chennabai often used to go to her maternal home. 11 days before the alleged incident, Chennabai had returned from maternal home and was dropped at her husband's house by the complainant. It is alleged at midnight on 20.07.2014, Gundappa the brother of the accused/appellant informed the complainant's son through cell phone and informed that his brother Raju (accused No.1) has killed Chennabai. The complainant states that he along with his wife and his brother Tirupati and two more persons namely Revappa Angadi, Lachumappa Rathod went to the house of Chennabai and Chennabai was found dead in front of her house. One Somaleppa who was there on the spot narrated the complainant that around 5 O'clock on the previous day, Raju the accused No.1 raised a quarrel with Chennabai and was shouting at her, objecting to her returning to the husband's house and was also assaulting her with the club. Somaleppa and the brother of the accused Gundappa tried to rescue Chennabai. Then accused No.1 tried to assault Somaleppa and others and all of them fled from the place. It is further stated in the complaint that accused No.1 dragged his wife inside the house and started beating her.

It is also alleged that around 11 O'clock on the same day, a loud noise was heard near the house of the accused No.1 and after going there they found Chennabai was dead.

The complaint further alleged that accused No.1 is addicted to alcohol and bad vices and his mother accused No.2 and his father accused No.3 inflicted physical and mental cruelty on the victim and she was assaulted between 5.00 p.m to 11.00 p.m. On 20.09.2015 the victim Chennabai died on account of the assault.

The first information report (FIR) is registered in Crime No.222/2015 for the offences punishable under Sections 498A, 302 and 109 read with Section 34 of IPC. The Investigating Officer conducted inquest panchanama and the dead body was sent for post mortem, after the receipt of post mortem report, investigating officer after investigation laid a charge sheet against the accused before the committal court. On receipt of the charge-sheet the learned Magistrate committed the case to the court of Sessions under Sections 209 of Code of Criminal Procedure. Subsequently the learned Sessions Jude after hearing the prosecution and the accused, framed charges under Sections 498A, 302 and 109 read with Section 34 of IPC. The accused did not plead guilty and claimed to be tried.

The prosecution led the evidence and examined 22 witnesses. 21 documents were marked as Ex.P.1 to Ex.P.21 on behalf of the prosecution, and five material objects were marked as MOs.1 to 5. On behalf of the defence, Ex.D1 and Ex.D1(a) are marked from the statement of PW.7. After the completion of the evidence of the prosecution, a statement under Section 313 of Cr. P.C was recorded. Accused has denied all the incriminating statements against them and denied its truth.

After hearing the learned Public Prosecutor and the learned counsel for the accused, the learned Sessions Judge agreeing with the theory of the prosecution convicted the appellant/accused No.1 of the offences punishable under Sections 498A, 109 and 302 of IPC and imposed the sentence referred to supra and accused No.2 and 3 are acquitted as incorporated in the operative portion of the order.

Being aggrieved by the said judgment, the appellant/accused No.1 has preferred this appeal.

Heard the learned counsel for the appellant Sri P.Prasannakumar and the learned High Court Government Pleader Sri Sharanabasappa M.Patil, for respondent/State.

Learned counsel for the appellant/accused No.1 elaborating on the grounds urged in the appeal memo would urge that the prosecution case is not established since the deceased was found hanging in a room that was locked from inside. Taking us through the evidence placed on record, it is contended that the deceased was found in a room that was locked from inside and this incident was noticed by PW.14 who went inside the room after removing the ceiling of the said room.

Referring to the evidence of the Doctor who has conducted post mortem examination which is marked at Ex.P8, the theory of the prosecution is that the deceased was throttled and later she was hanged by the appellant/accused No.1 is not established. The medical report coupled with the evidence of the Doctor would reveal that the deceased died on account of asphyxia and she was not killed before hanging as alleged.

It is the further contention of the learned counsel for the appellant that the case of the prosecution that the deceased was assaulted at 5.00 p.m. is also not established as the post mortem report did not reveal any other injuries other than the injury caused on the neck on account of hanging.

It is also the further contention that the Sessions Court could not have convicted the appellant/ accused No.1 of the offence punishable under Sections 498A of IPC in the absence of any such allegations attracting the provision of Section 498A of IPC in the complaint as well as in the evidence urged before the trial Court.

It is also his further contention that no motive is established. However, the learned Sessions Judge has ignored vital contradictions and discrepancies in the evidence of the prosecution and learned Sessions Judge failed to extend the benefit of the doubt to the appellant/ accused No.1. It is further stated that having acquitted accused No.2 and 3, the learned Sessions Judge could not have convicted the appellant/accused No.1 as accused No.1 stands on the same footing.

The learned counsel for the appellant has also invited the attention of the Court to the evidence of PW.7 - Somaleppa who is said to have witnessed the incident of accused No.1 beating his wife around 5 O'clock in the evening. Referring to his evidence it is urged that the evidence is not supported by any other independent witnesses.

The learned High Court Government Pleader justifies the impugned judgment and submits that the case of the prosecution is duly established from the evidence led before the trial court. It is urged that the medical report and other evidence clearly reveal that the accused No.1 has hanged the deceased after she was beaten around 5.00 p.m. It is submitted that accused were in the house till her death. These factors would establish the guilt of the accused No.1 beyond reasonable doubt.

Learned High Court Government Pleader would further submit that the trial court has analyzed the evidence on record, particularly the evidence of PW.1 the complainant, PW.5-Seethamma the mother of the deceased and the evidence of PW.8 the brother of the complainant wherein the addiction of appellant/accused No.1 to alcohol and gambling is proved. It is the submission of the learned counsel for the respondent/State that the above-aforementioned witnesses have withstood the test of cross-examination and nothing is elicited in the cross-examination to disbelieve their evidence accordingly, he prays for dismissal of the appeal on the ground that the appeal is devoid of merits.

This Court has considered the contentions raised at the Bar and also the following citations submitted by the learned counsel for the appellant/accused No.1.

i. (2021) 2 SCC (Cri) 679 - Shivaji Chintappa Patil v. The State of Maharashtra;

ii. (2020) 2 SCC (Cri) 277 - Eswarappa v. The State of Karnataka;

iii. (2019) 3 SCC (Cri) 323 - Ranjit Kumar Haldar v. The State of Sikkim;

iv. (2012) 1 SCC (Cri) 1 - Prithipal Singh v. The State of Punjab;

v. (2015) 1 SCC (Cri) 608 - Ananda Poojary v. The State of Karnataka;

vi. (2021) 1 SCC (Cri) 9 - Chunthuram v. The State of Chhattisgarh;

vii. (2014) 1 SCC (Cri) 677 - Sujit Biswas v. The State of Assam;

viii. (2019) 1 SCC (Cri) 701 - The State of UP v. Wasif Haider;

ix. (2018) 3 SCC (Cri) 763 - The State of Karnataka v. Srinivasa.

In this case the medical evidence plays a significant role in ascertaining the real fact since there are no eyewitnesses to the allegation of murder against the accused. The evidence of the Doctor-PW.12 relating to the injuries on the deceased is as under:-

The PW.12-Doctor was cross-examined by the defence. The PW12-Doctor has deposed in his cross-examination is as under:-

Based on this evidence, it is urged that the theory of the prosecution that the accused has killed the deceased by throttling and thereafter the deceased was hanged cannot be accepted. From the evidence of PW.12-Doctor, it can be safely inferred that there was no struggle by the deceased before her death.

The learned counsel for the appellant placing reliance on the judgment of the Hon'ble Apex Court in the matter of Shivaji Chintappa Patil referred to supra would contend that the facts in the said case are similar to this case and applying the ratio of the said case the accused/appellant is to be acquitted.

Para No.15 and 16 of the said judgment reads as under :-

"15. It will be relevant to refer to cross-examination of PW-6:-

“It is correct that in both cases of suicidal or homicidal hanging the ligature mark around the neck shall go upwards ears. It is correct that while issuing advance death certificate I did not consult Senior Medical Officer and after consulting of Senior Medical Officer and going through the books I concluded that it was a case of hanging. Article No. 1 can be used for suicidal hanging and in case of homicidal hanging or homicidal strangulation the bodily resistance would have reflected other recorded in my presence wise.”

It is thus clear, that the medical expert has admitted, that in both the cases of suicidal or homicidal hanging, the ligature marks around the neck shall go upwards ears. He has further admitted, that after consulting his Senior Medical Officer and going through the books, he concluded that it was a case of hanging. He has further admitted, that Article 1 which is a rope, which is found on the spot, can be used for suicidal hanging. He has further admitted, that in case of homicidal strangulation, the bodily resistance would have been reflected."

and it is also urged with reference to Section 106 of IPC that the burden of the prosecution is not discharged merely because the husband was inside the house where the deceased was found dead in her matrimonial home. In the aforementioned judgment of Shivaji Chintappa Patil, in paragraph No.23, it is held as under :-

"23. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused."

No doubt in the aforementioned judgment the Hon'ble Apex Court has set aside the concurrent finding of conviction under Section 302 of IPC and acquitted the accused. However, the other circumstances found in the present case would lead to the conclusion that the accused is responsible for the suicide of his wife. There is close proximity to the assault on the wife and her death which have taken place on the same day.

When the accused is charged for the offence under Section 302 of IPC and if the prosecution fails to prove the charges for offence under Section 302 of IPC and if the evidence on record, points to the guilt to the accused under Section 306 of IPC, the court can convict the accused for offence under Section 306 of IPC modifying the judgment of conviction and sentence under Section 302 of IPC. Though the accused is not charged and tried for offence under Section 306 of IPC and is charged and tried for the offence under Section 302 of IPC, considering the fact that the offence under Section 306 of IPC carries lesser punishment, it is permissible to convict the accused under offence under Section 306 of IPC. This has been held in the matter of Sanjay Pachaghre v. State of Maharashtra reported 2015 SCC Online 520. This view is taken in the light of ratio laid down in the case of Dalbir Singh v. State of UP reported in (2004) 5 SCC 334.

Referring to the evidence of PW.14-Gundappa Rathod it is urged that the said witness in his examination-in-chief has said that his sister-in-law (victim) has committed suicide. It is also stated by him in the cross-examination that the victim was not interested in marrying the accused No.1. He further states in the cross-examination that the dead body of the victim was found when they entered the room by removing the zink sheet ceiling as the room was locked from inside.

Referring to this evidence, it is urged that the fact that deceased was found hanging in a room that was locked from inside would demonstrate that it is the case of suicide and not the case of murder as alleged by the prosecution. Since the deceased was found alone in the room which was locked from inside, it cannot be said that after murdering his wife, the appellant/accused No.1 hung her in the room, locked the door from inside and came out of the room through the ceiling. There was no such explanation found in the case of the prosecution. This is one important circumstantial evidence that goes against the root of the prosecution case of the murder of his wife by accused No.1. The judgment of the Hon'ble Apex Court in the matter of Shivaji Patil referred to supra, deals with the almost identical situation. The Hon'ble Apex Court has held that as the post mortem report reveals asphyxia due to hanging and in the absence of any other injury on the body of the victim, the allegation of homicidal hanging cannot be accepted in the absence of proof relating to homicidal death. Even in this case, the injury over the dead body of the deceased does not lead to the conclusion that it is the case of homicidal hanging. On the other hand, the circumstantial evidence brought before the court would lead to the conclusion that it is the case of suicide.

When that is the case, the charge against the appellant/accused No.1 under Section 302 of IPC is held not proved. The prosecution has not proved the guilt of the accused beyond reasonable doubt for offence under Section 302 of IPC.

This being the position the next question that needs to be answered is whether the appellant/accused No.1 is guilty of the offence under Section 306 of IPC. Section 306 of IPC reads as under:-

"306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

The evidence on record has demonstrated that the victim was assaulted by the appellant/accused No.1 around 5.00 p.m. on the date of the incident. It is also forthcoming that appellant/accused No.1 has dragged his wife inside the house when the neighbours tried to rescue the victim. On the same day, at around 11 O'clock the wife of the appellant/accused No.1 was found hanging. There is proximity to the incident which has occurred at 5 p.m. and the death which is noticed around 11 O'clock. There is no dispute over the fact that the appellant/accused No.1 was also inside the house after 5.00 p.m. When such being the position, this court can safely conclude that the case is made out against the appellant/accused No.1 of the offence punishable under Section 306 of IPC instead of Section 302 of IPC.

The trial Court has also convicted the accused for the offence under Section 498A of IPC. And accused No.1 is a sentenced to undergo imprisonment for a period of two years and to pay a fine of `2,000/-. The question is whether the ingredients of Section 498A of IPC are established. Section 498A of 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 willful 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."

From the reading of the above said provision it is apparent that the husband or the relative of the husband of a woman if they subject the woman to cruelty then it amounts to an offence. And the word cruelty is explained in the explanation provided to Section 498A of IPC. As per the explanation provided to Section 498A of IPC any willful conduct of such a nature that is likely to drive the woman to commit suicide amounts to cruelty. From the evidence on record it is established beyond reasonable doubt that the accused has assaulted his wife and within a short span of time she was dragged inside the house and on the same day she was found dead hanging. These facts have been established beyond reasonable doubt. Under the circumstances there is no difficulty in holding that the accused has committed offence under Section 498A of IPC.

The appellant/accused No.1 is in judicial custody since the date of his arrest on 21.07.2014. Thus, he has spent seven and half years in judicial custody. The maximum punishment for the offence under Section 306 of IPC that can be imposed is 10 years. It is also noticed that appellant/accused No.1 is having an old age mother and a daughter who was aged four years at the time of the incident. Taking these factors into consideration this court is of the opinion that the imprisonment undergone by the appellant/accused No.1 from the date of his arrest till this day can be treated as the service of sentence undergone by the appellant/accused No.1 of the offence under Section 306 of IPC and this court is of the opinion that the sentence of imprisonment of seven and half years which is undergone by the appellant/accused No.1 till this day is just and proportionate to the offence which he has committed. Under these circumstances, the impugned judgment shall be set aside by allowing the appeal in part. Hence, the following :

ORDER

The appeal is allowed in part.

The judgment of conviction and order of sentence dated 16.05.2017 passed in Sessions Case No.130/2014 by the court of II Addl. District and Sessions Judge, Raichur is set-aside in part.

The appellant/accused No.1 is acquitted for the offences punishable under Sections 302 of IPC.

The accused No.1 is convicted for the offences punishable under Sections 306 and 498A of IPC. Both the sentence shall run concurrently.

However, the imprisonment undergone by the appellant/accused No.1 from 21.07.2014, the date of his arrest till this day shall be treated as service of sentence and consequently be set him at liberty, if he is not required in any other case.

The Registry shall communicate the copy of the judgment to the concerned jail authority forthwith for further action.