Raju vs State of Karnataka

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offence punishable under Sections 498A and 306 IPC on a trial held by the Fast Track Court at Chikmagalur. The facts relevant for the purpose of this appeal are as under:

The appellant who is accused before the Trial Court is the husband of Gayathri (deceased) and their marriage was performed on 30.06.2002. Through the wedlock, they have two male children. After the birth of first child, the appellant started consuming liquor and in an intoxicated condition, used to beat his wife now and then. This conduct of the appellant continued for a long time, ultimately, on 13.07.2005 at about 6.00 p.m., Gayathri committed suicide by pouring kerosene on herself and set fire. PW1 - Venkatesh is the father, PW2 - Meenakshi is the mother and PW3 - Shanta is the sister of deceased. They went to the house of accused and during the inquest proceedings, their statement were recorded and on the report of PW7 - Ganapathi Bhat, the Taluka Executive Magistrate, the crime came to be registered against the appellant for the charge under Sections 498A and 306 IPC. During the course of investigation, spot mahazar (Ex. P6) was held and MOs. 1 to 3 were seized under the mahazar. The body of deceased was subjected to postmortem examination and postmortem report (Ex. P1) was collected. After complying the formalities, chargesheet was laid against the appellant for the aforesaid offences.

During the trial, prosecution examined PWs. 1 to 7, got marked documents Exs. P1 to P8 and MOs. 1 to 3. Statement of the appellant was recorded u/s 313 Cr. P.C. No defence evidence was led. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, convicted the appellant for the charge under Sections 498A and 306 IPC and for the offence u/s 306 IPC he was ordered to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 2,000/- whereas for the offence u/s 498A IPC, he was ordered to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/- with default sentence. Aggrieved by the conviction and sentence, the present appeal is filed.

I have heard learned Counsel for the appellant and also learned High Court Government Pleader.

The point that arises for my consideration is:

Whether the appellant has made out any grounds to warrant interference in his conviction and sentence for the offence punishable under Sections 498A and 306 IPC?

It is the contention of learned Counsel for the appellant that except the interested testimony of PWs. 1 to 3, there is no material on record and PW4 - the neighbor has turned hostile, hence, he contends that the conviction on the basis of such evidence is impermissible. He would also contend that the nature of cruelty, its details and the period etc., are not stated by any of the witnesses and the conviction cannot be based on vague and general statement. He would further contend that there is no mens rea so far as offence u/s 306 IPC is concerned, therefore, conviction u/s 306 IPC and sentence thereon are also improper. On these grounds, he has sought for setting aside the conviction and sentence.

On the other hand, learned High Court Government Pleader has supported the judgment and order of the Court below.

The scrutiny of material placed on record reveals that PW4 is the neighbor and he has not supported the case of prosecution. Though he was cross examined by the prosecution, no incriminating material is brought on record in his evidence. It is only the evidence of PWs. 1 to 3 - the father, mother and sister of the deceased which is available on record. The crime can be registered either on the basis of complaint or even on the basis of inquest report.

PW1 - Venkatesh who is the father of deceased had told before the Taluka Executive Magistrate that his daughter was married about 4 years prior to her death and she was happy with her husband for sometime and thereafter, the appellant started consuming liquor and playing cards and sold all gold ornaments given at the time of marriage and was beating his wife now and then. Despite the advice, he did not discontinue his bad vices and continued beating and abusing his wife and subjecting her to cruelty and harassment. So he came to know about the death of his daughter and went to the house of accused and saw the dead body. It is in his evidence that the deceased was not able to tolerate the harassment and committed suicide. Even in the evidence as well, PW1 - the father re-iterated the said facts. It is in his evidence that after the marriage, they were happy only for about a month and there used to be a quarrel amongst the spouses and after the birth of first child, the appellant started consuming liquor and started beating his wife. He also stated that she was not able to tolerate the cruelty and therefore, she set fire on herself by pouring kerosene.

Though in his evidence, the period of cruelty continued is not stated, the day to day incident of beating and abuse are not stated, what PW1 states in his evidence that after the birth of first child, the appellant started consuming liquor and was beating and abusing his wife and therefore, she did not tolerate it and committed suicide. If this conduct of the appellant is a day to day affair in the family, it appears not necessary to repeat the acts of cruelty in the evidence.

So far as the period is concerned, PW1 states that after the birth of first child, the appellant started consuming liquor and beating of his wife continued till she died. This much of narration of facts, in my opinion is sufficient to attract the provision of Section 498A IPC. That apart, PWs. 1 and 2 are the father and mother of deceased Gayathri and no father or mother would go to file a complaint to the police in case if there was quarrel or beating to their daughter by her husband with a purpose to continue matrimonial relation instead of breaking it. should continue all along. PW3 is the sister of the deceased. So far as consuming liquor and beating the deceased is concerned, the evidence of PWs. 1 to 3 is consistent and cogent and there is no reason to disbelieve the version of these witnesses.

Invariably, in the present days, the neighbors do not come to support the victims and this fact alone is insufficient to discard the evidence of interested witnesses. Though the counsel would contend that the cause of assault is not explained by any of the witnesses, for a person who consumes liquor, no rational cause is necessary to beat his wife. In such circumstances, the mere absence of the cause for a quarrel itself is insufficient to discard the evidence. A cautious scrutiny of the evidence of these witnesses reveal that the cruelty was not of such a nature which was likely to drive the deceased to commit suicide. Beating and abusing the wife in an intoxicated condition now and then is a mental cruelty and thereby the later of provisions of Section 498A(a) are attracted to the facts on hand.

Learned Counsel for the appellant has placed reliance on the decision of Apex Court reported in Girdhar Shankar Tawade Vs. State of Maharashtra, wherein the Apex Court held that in the absence of cogent evidence to bring home the charge u/s 498A IPC, the accused came to be acquitted and perusal of the facts reveal that there was no such cruelty by the accused in the aforesaid case, there were one or two events of assault by the husband and in such circumstances, the Apex Court held that the provisions of Section 498A are not applicable. The principle laid down do not apply to the facts on hand as there is continuous act of beating and abuse in an intoxication condition. Therefore, the material placed on record is sufficient to award conviction for the offence u/s 498A IPC.

The scrutiny of evidence aforesaid further reveals that beating was only in a case appellant used to consume liquor and in that condition, rather it is improper to expect that he had mens rea of his wife would commit suicide, therefore, Section 306 IPC is not attracted to the aforesaid facts of circumstances. Conviction and sentence ordered by the Trial. Court for the offence u/s 306 IPC deserves to be set aside.

So far as the sentence is concerned, it is the submission of learned Counsel for the appellant that there are two kids and it is necessary for the appellant to look after the children. Though it is a mitigating circumstances to reduce the sentence, but that itself is insufficient to award casual sentence of imprisonment. When the crime is committed, it is necessary that reasonable sentence has to be awarded.

In the result, the appeal is allowed in part. Conviction of appellant for the offence u/s 306 IPC and sentence thereon are set aside. He is acquitted of the said charge.

Conviction and sentence ordered by the Trial Court for the offence u/s 498A IPC are maintained.

The appellant is entitled for set off u/s 428 Cr. P.C.

The Trial Court is directed to secure the presence of appellant to undergo the remaining part of the sentence.