Shrishail vs The Grameena Police Station, Gulbarga

K.N. Phaneendra, J.—1. Appellant is the sole accused before II-Additional Sessions Judge at Gulbarga, in S.C. No. 404/2007 who was tried for the offences punishable under Sections 498-A and 306 of IPC. Vide judgment dated 25.03.2010, learned Sessions Judge has convicted the appellant and sentenced him to undergo imprisonment for a period of two years and to pay fine of Rs. 2,000/- with default punishment of six months for the offence punishable under Section 498-A of IPC and also sentenced him to undergo imprisonment for a period of three years and a fine of Rs. 3,000/- with default clause of nine months for the offence punishable under Section 306 of IPC.

Being aggrieved by the same, the appellant is before this Court.

I have heard the arguments of the learned counsel for the appellant and learned High Court Government Pleader.

Brief factual matrix that emanate from the records are that,-

"Prosecution case has begun with the lodgment of first information report by a lady by name Danamma W/o Siddappa Jewara of Madana Hipparaga village as per Ex. P1. In the said complaint, it is alleged that the daughter of the complainant by name Laxmibai was given in marriage to the appellant about eight years prior to the incident. After the marriage, said Laxmibai started matrimonial life in the house of the appellant. The deceased and the appellant were blessed with a female child. After the birth of first child, it is alleged that appellant was addicted to alcohol, everyday he used to come to the house and abuse and assault the deceased-Laxmibai. After some time, couple left Bheemalli village and they shifted themselves to Gulbarga. Even at Gulbarga the appellant used to come to the house in a drunken state, assault and ill-treat the deceased. Inspite of that, they were pulling on their life, she begot three more children. Thereafter appellant joined brick factory near Ramnagar and they started living at Ramnagar. There also he continued his ill-treatment and harassment to the deceased-Laxmibai. About three months'' prior to the incident, appellant and his wife and children have attended the marriage of sister of Laxmibai by name Sunanda. After attending the marriage, the appellant has left the deceased-Laxmibai and his children in the house of the complainant and he alone went back to Gulbarga. It is the further case that, on 04.02.2007 appellant came to the house of the complainant along with his mother and requested for sending his wife Laxmibai along with him so that he would look after her with all love and affection. At that time, PW.7-Bheemashankara and PW.4-Siddappa were also present. They also advised the appellant to take care of Laxmibai and children. With that assurance, the accused brought them back to Gulbarga on 05.02.2007.

It is the further case of the prosecution that on 06.02.2007 in the afternoon the complainant received an information from one Basalingappa Yallameli, that Laxmibai has committed suicide by jumping into a well situated near Tajsultanpur road. Immediately, the complainant and her husband and others have rushed to the said place and they saw the dead body of the deceased in the hospital because by the time they reach the spot, the dead body was shifted to the hospital. Complaint came to be lodged making allegations that because of the ill-treatment and harassment given by the appellant the deceased has committed suicide. The police after thorough investigation laid charge sheet against the appellant for the above said offences."

The learned Sessions Judge after securing the presence of the appellant has framed charges under the above provisions and put the accused on trial. The prosecution in order to bring home the guilt of the accused examined 13 witnesses as PWs.1 to 13 and got marked nine documents at Exs.P1 to P9 and three material objects as M.Os.1 to 3. Accused was also examined under Section 313 of Cr.P.C. Accused has also led evidence on his side by examining one witness as DW.1. After thorough evaluation of the materials on record, the Trial Court has come to the conclusion that the prosecution has proved the case beyond reasonable doubt. Hence, it recorded a judgment of conviction and sentenced the accused accordingly as noted supra.

Sri Rajkumar A. Korwar, learned counsel for the appellant strenuously contended that except the evidence of PWs.1 and 2, there is no other evidence available against the appellant. Even PWs. 1 and 2 who are the parents of the deceased have not clearly stated that accused is the person who is responsible for the death of the deceased. They only stated about the conduct of the accused and alleged ill-treatment against the deceased but specifically what made the deceased to commit suicide is not forthcoming in the evidence of the prosecution witnesses. He has further contended before the Court that mere coming to the house in drunken state and abusing the wife or even assaulting the wife is not sufficient to show the intention of the accused to drive his wife to commit suicide. Therefore, he has contended that the Trial Court has not properly appreciated the oral and the documentary evidence on record. Hence, accused/appellant is entitled for acquittal.

Per contra, Sri Maqbool Ahmed, learned High Court Government Pleader has contended that in cases like 498-A and 306 of IPC, the proper and correct witnesses are the relatives of the deceased, because they are the only persons who know the relationship between husband and wife and also what was transpiring in the family of the appellant. Therefore, their evidence cannot be easily brushed aside. The Trial Court has considered the conduct of the accused and defence taken by the accused coupled with the evidence of prosecution and has rightly convicted the accused. Therefore, there is no room for interference by this Court.

Having heard the arguments the only point that arises for consideration of this Court is;

"Whether the Trial Court has committed any error in appreciating the evidence in its proper perspective and that the judgment of conviction is erroneous and whether the said judgment calls for interference at the hands of this Court."

Before adverting to what evidence lead by the prosecution, there are some undisputed facts available in this case. The relationship between the appellant and the deceased Laxmibai is not disputed by the appellant. At the time of death of the deceased; the appellant and the deceased along with their four children were residing together in Gulbarga is also not in dispute. The said Laxmibai committed suicide by jumping into the well is also not disputed. What is disputed before the Court by the accused is, he was not responsible for the commission of the suicide by the deceased. Therefore, it is just and necessary for this Court to have the brief facts as to the depositions of the witnesses before the Court.

PWs.1 and 2 are the mother and father of the deceased. They have stated about the conduct of the accused, ill-treatment and harassment by the accused/appellant on deceased Laxmibai. PW.3 who is neighbour of PW. 1 he turned hostile to the prosecution and he has not supported to any extent. PW.4 is a relative of PW.1; PW.5 is the same villager, who is witness to inquest proceeding; PW.6 is the cousin of the deceased; PWs.7 and 8 are the same villagers of PW.1; PW.9 is the doctor who conducted post mortem examination on the dead body of Laxmibai, he gave the opinion regarding suicidal death of the deceased as per Ex. P8; PW.10 is the owner of the land, where the well was situated, in which dead body of the deceased was found; PW. 11 police constable who has carried the dead body for post mortem examination after the inquest proceeding; PW.12 PSI who registered a case and investigated the matter; PW.13 CPI who laid the charge sheet before the Court.

The evidence of PWs.1 and 2 and other witnesses who are all relatives of the deceased play a dominant role in this case. The Court has to ascertain whether the evidence of these witnesses inspire confidence in the mind of the Court that the allegations made against appellant is proved beyond reasonable doubt. Before adverting to the evidence of these witnesses let me have the provision under Sections 306 and 107 of IPC and 498-A of IPC.

Section 306 of IPC deals with abatement of suicide. The section says 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. So there must be a specific material available on record that the accused has abetted deceased Laxmibai to commit suicide either by means of his conduct or by any other means.

Section 306 of IPC does not define what is meant by abetment. Therefore Court has to fall back upon section 107 of IPC. Section 107 deals with abetment. Abetment is defined as

"A person abets the doing of a thing, who-

First- Instigates any person to do that thing; or

Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."

(emphasis supplied)

So far as this case is concerned the third part of the Section 107 of IPC is applicable i.e. according to the prosecution accused has intentionally aided by his act, conduct and illegal omission, made the life of the deceased miserable and thereby abetted her to commit suicide. This section very specifically says that there must be intention to aid a person to commit suicide, the word ''intentionally'' takes dominant role in such cases. Therefore, it clearly goes to show that intention on the part of accused should be established by means of surrounding circumstances, there cannot be any straight jacket formula that can be brought out what are the circumstances that may be sufficient to draw inference of an intention on the part of the accused, but it all depends upon the facts and circumstances of each case.

Section 498-A of IPC reads as follows:

"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 purpose 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."

(emphasis supplied)

This particular provision squarely deals with the cruelty by husband or his relative against a woman. The first part of the section says that the cruelty means the willful conduct of such nature as is likely put woman to commit suicide. The second part is not applicable so far as this case is concerned. Because it is not a case of the prosecution that there was any unlawful demand for any property or valuable security and for that reason the accused has meted such cruelty on the deceased. Therefore, in this section also willful misconduct of the accused play a dominant role.

On meaningful understanding of the above said provisions, they make it clear that intention of the accused plays a dominant role in order to attract these two provisions. In this background, on facts let me see whether the circumstances placed before the Court are sufficient to draw an inference that the accused/appellant had such an intention and because of that intention he acted in such a manner which was sufficient and likely to drive his wife to commit suicide.

PWs.1 and 2 have in fact deposed before the Court that after the birth of first child, the accused and deceased were shifted themselves to Gulbarga and there, the accused started consuming alcohol and he started ill-treating and harassing the deceased. PW.1 and PW.2 advised him on several occasions and thereafterwards deceased begot three children, but in spite of that ill-treatment was not stopped and continued like that. It is specifically stated that about three months prior to the incident the deceased Laxmibai and the appellant had been to the marriage of Sunanda, who is another daughter of PWs.1 and 2. At that time the appellant left the deceased and his children in the house of the PWs. 1 and 2 but after one month he again came back and requested them to send Laxmibai along with him. On giving some advise, PWs.1, 3 and 4 have sent Laxmibai along with the accused/appellant. But on the very next day the death of deceased occurred, except this nothing has been stated in the examination-in-chief. These two witnesses are prime witnesses to the prosecution. They never stated what was the reason for the accused to ill-treat and harass the deceased and whether only in a drunken state he had ill-treated and harassed deceased due to the influence of alcohol. If that is so, the intention cannot be gathered from that conduct that he really wanted to drive his wife to commit suicide. It is not a new habit of the accused. It is the statement of these two witnesses that immediately after birth of first child he addicted to alcohol and he used to come to house drunk, abuse and assault deceased. But thereafter also it is clear from the evidence they begot three children. Therefore, it clearly indicates that both husband and wife have already accustomed themselves to their mutual conduct that accused everyday coming to the house in drunken state abusing and assaulting, all those things have become virtually casual in their life. Therefore there is no special reason which has been assigned by any of the witnesses including PWs. 1 and 2 as to what exact the reason for the deceased to commit suicide otherwise than the said bad habit of the accused. Though nothing has been elicited in the course of cross-examination, in my opinion examination-in-chief of these witnesses itself is not so sufficient to draw definite the conclusive inference against the accused.

PW.3 has turned hostile and PWs.4, 5, 7, 8 they are all the villagers of PW. 1. They actually came to know about ill-treatment and harassment through the deceased and as well as PWs.1 and 2. According to their own evidence they are not eye witnesses to the quarrel between the husband and wife and they never stated that they actually witnessed the accused ill- treating and harassing the deceased. They also did not say anything about the reason for ill-treatment by the appellant. The Court cannot also expect from these witnesses except PWs.1 and 2 they are the proper persons who knew about in and out of the family problems of the appellant and the deceased Laxmibai. Therefore, in my opinion, the evidence of these witnesses falls short of legal requirements as per Section 498-A and 306 of IPC.

Apart from the above the trial Court has mainly concentrated on the defence taken up by the accused. The accused has taken up the defence during the course of cross-examination of these witnesses that the deceased was suffering from stomach pain. Therefore, that may be the reason she might have committed suicide. Though there is no specific proof placed before the Court by the accused nevertheless the Court has to ascertain whether it is also a plausible explanation given by the accused. Mere suggestions made to the witnesses with regard to the defence taken by the accused cannot at any stretch of imagination take the place of proof but something more is required to probablise the defence of the accused. A remote material brought to my notice by the learned counsel for the appellant in the evidence of PW.9-doctor who has conducted post mortem examination on the dead body of Laxmibai. The Post Mortem examination report which is marked at Ex. P8 coupled with the evidence of the doctor PW-9 discloses that there was laceration to both kidneys of the deceased. Neither the prosecution nor the accused counsel have elicited as to what was the reason for the laceration of the kidneys of the deceased Lakshmi Bai. It cannot be out rightly said that laceration was only due to the stomach pain to the deceased Lakshmi Bai, but such positive evidence which has been placed before the Court cannot be easily brushed aside. The fact remains that deceased had suffered laceration to both the kidneys. What is the reason for that, is ought to have been elicited by the prosecution. Therefore, though it is not sufficient to draw an inference that the deceased has committed suicide only due to stomach pain. But it created a serious doubt in the mind of the Court as to what was the reason for laceration of the kidneys which remained unanswered by the prosecution.

Be that as it may, the Court also should study the surrounding circumstances before drawing an inference with regard to the intention of the accused and conduct of the accused are sufficient or likely to drive a lady to commit suicide. Of course, on the previous day of the incident, the appellant has brought his wife and children to his house. They had four children, two are grown up and two are small kids. As those two grown up children, who are approximately aged about 9 years and 7 years, are proper witnesses, the Investigating Officer ought to have examined them during the course of investigation. Atleast in order to ascertain as to what exactly happened in the house on those two days i.e., on the day they came back from their grand-parents house and on the date of incident, the prosecution would have examined the first and second children of the accused and the deceased to know about the conduct of the father on that day and previous day. More over, no witness has been cited to show and establish as to how and at what time the deceased left the house for the purpose of committing suicide; whether the accused was present in the house, whether there was any overt act on the part of the accused on that particular day. Therefore, the evidence of the children of the accused and the deceased could have thrown some light in so far as the prosecution is concerned. When there is no positive evidence available before the Court with regard to the presence of the accused in the house, when actually the deceased left the house for commission of suicide and the prosecution has not bestowed its attention in this angle it cannot be condensively said that the prosecution has proved the case beyond all reasonable doubt. Here, the doubt is created as to why, the prosecution has not made any effort to bring out the truth from the mouth of the children of the appellant. Therefore, in my opinion, this also a deficient factor to the prosecution case. There is no evidence showing the intention on the part of the accused from the evidence of the so called relatives of the deceased. On the other hand, the material witnesses have not been cited and examined before the Court. This also to some extent broke the back bone of the prosecution.

Be that as it may, the defence of the accused has been seriously taken note of by the learned Sessions Judge. It is the fundamental basic principles of criminal jurisprudence that the defence of the accused should not be looked into by the courts unless, it records the finding that the prosecution has proved the case beyond all reasonable doubt. If the prosecution itself has no legs to stand, then there is no question of considering the defence of the accused.

In this case, the accused has taken up the defence that the deceased was suffering from stomach pain. Therefore, she would have committed suicide. It is only a probable defence that has been taken by the accused. On the other hand, when the prosecution itself has not placed sufficient materials to show exactly what happened on the date of the incident, the accused was in the house and he came to the house in drunken state of affairs and on that day, he abused and assaulted the deceased and because of that reason she has committed suicide.

As I have already narrated, there may be some other reason for commission of suicide, other than the fact that the deceased was a drunkard and coming to the house with drunken state and used to abuse and assault the deceased everyday. Why that day, particularly the deceased has decided to commit suicide is not forthcoming in the evidence of the prosecution. These are all the important aspects that has not been taken note of by the learned Sessions Judge but being carried away by the kith and kin''s evidence of the deceased, he mixed up with the defence theory with that of the prosecution story and taken it as a prime material for the purpose of convicting the accused which ought not to have been done by the learned Sessions Judge.

I am conscious of the principle that defective investigation may not be sufficient to acquit the accused. In this regard, the learned High Court Government Pleader has cited a decision reported in 2012 (2) CRL.288 between Dayal Singh & Others v. State of Uttaranchal, wherein the Hon''ble Apex Court has observed that -

"Merely because the Investigating Officer has failed to perform their duties in accordance with law and there has been some defect in investigation then it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground."

There is no dispute so far as this principle is concerned. But this Court is not holding that only due to the defective investigation, the accused is entitled to be acquitted, but that is only taken as one of the circumstances coupled with other circumstances noted above to hold that the prosecution has not proved the case beyond reasonable doubt.

Looking from any angle, the prosecution said to have been proved the real intention of the accused and his willful misconduct to drive the wife to commit suicide.

In the above said circumstances, on re-appreciation of the entire evidence on record, I am of the opinion, the benefit of doubt should have been given in favour of the accused. At the fag end of the arguments, the learned counsel also brought to my notice that all the four children are presently residing with the appellant and he has been taking care of the children.

In view of my above said discussion, the appellant is entitled to be acquitted for the charges levelled against him. Hence, the following:

":ORDER:

The appeal is allowed. Consequently, the judgment of conviction and sentence passed by the learned Sessions Judge is hereby set aside. The appellant is acquitted of the charges leveled against him for the offence punishable under Section 498(A) and 306 of IPC. Fine amount if any deposited is ordered to be refunded to the appellant."