Smt. Kamalawwa and Sadappa Govindappa vs State of Karnataka

B.V. Pinto, J.—This appeal is filed challenging the judgment dated 19.02.2007 passed by the learned Sessions Judge, FTC, Ramadurg in S.C. No. 219/2002 convicting the appellants for the offence punishable u/s 498A r/w. Section 34 of IPC and sentencing them to undergo R.I. for a period of one year and to pay a fine of Rs. 1,000/-each, in default, to undergo R.I. for one month for the offences punishable under Sections 498A r/w. Section 34 IPC. It is the case of the prosecution that one Ningappa is the husband of the deceased Lakshmi. Appellant No. 1 is the mother-in-law and appellant No. 2 is the brother-in-law of the deceased Lakshmi. The aforesaid three accused are alleged to have subjected her to cruelty by their willful conduct which is of such a nature as was likely to drive Lakshmi to commit suicide and therefore, they are alleged to have committed an offences punishable u/s 498A r/w. Section 34 IPC.

The prosecution has further alleged that accused No. 1 had committed murder of the said Lakshmi intentionally on 20.03.2002 at about 11 a.m., in his house situated in Halagatti village by setting her person ablaze by pouring kerosene on her and thereby, he is alleged to have committed offence u/s 302 IPC. The injured Lakshmi was taken to the hospital and in the hospital, it is stated that Lakshmi had given a statement alleging that herself and accused No. 1 were in love with each other and have got married each other against the will of their family. After about 1 year, the parents of the deceased got their marriage registered, after which the deceased went to live with her husband. The appellants as well as father-in-law of the deceased were also in that house and some days thereafter, the mother-in-law and brother-in-law started harassing the deceased on the ground that she belongs to some other caste. It is also stated that appellant No. 2 assaulted the deceased about 2 to 3 times and therefore, the deceased wanted to live separately. The deceased became pregnant and about 11/2 months after the delivery, Ningappa-accused No. 1 again started quarreling on the ground that she has given birth to a female child and that the neighbouring people came and advised him not to ill-treat her. It is the case of the prosecution that on 20.03.2002, at about 5 a.m., when the deceased woke up her husband for work he abused her and refused to go to work. At about 11 a.m., on the same day, the accused came back and after holding both her hands dragged her near the kerosene lamp and lit her on fire. Her saree started burning and she raised alarm, accused No. 1 locked the door from outside. Hence, she sustained severe burn injuries. Then Venkappa Nagammanavar PW. 17 and others went to the spot and put off the fire. PW. 4 Shekavva Chowkad informed about the same and they shifted her to Ramadurg Hospital. In the hospital, she has stated that her husband-accused No. 1 had attempted to kill her, which information has been recorded. The police came to the hospital and recorded the statement as per Ex. P.26. PW. 22-Dr. Ningappa Basavanthappa Bannigidad has attested the said statement of Lakshmi and endorsed in Ex. P.26 to the said effect. The case in crime No. 29/2002 for the offences punishable under Sections 498A and 307 r/w. Section 34 of IPC came to be registered. The Tahsildar came to the hospital and recorded the statement of the injured as per Ex. P.15. In the said statement also, the deceased had informed that her husband had pulled the kerosene lamp and set her-on fire. However, in spite of treatment the deceased succumbed to the injuries and died on the same day Thereafter, Section 302 IPC was added to the earlier FIR. Police have filed charge sheet after investigation, alleging that accused No. 1 had committed an offence punishable u/s 302 IPC and all the three accused have committed offence u/s 498A r/w. Section 34 IPC.

The prosecution in order to prove the case has examined in all 25 witnesses and got marked Exs. P.1 to P.35 and produced MOs. 1-9. The defence of the accused was one of total denial and accused No. 1 had got marked Ex. D.1, which is the P.F. form of Lakshmi-the deceased. The learned Sessions Judge has found that accused No. 1 is guilty of the offence punishable u/s 302 IPC and found that accused Nos. 2 and 3-appellants herein are guilty of offences punishable u/s 498A r/w. Section 34 IPC and sentenced them as aforesaid. Being aggrieved by the said judgment and conviction, this appeal has been filed.

Heard Sri Neelendra Gunde, learned counsel for the appellants and Sri Vinayak S. Kulkarni, learned HCGP for the respondent-State.

Learned Counsel for the appellants submits that though the Division Bench of this Court has found accused No. 1 guilty of the offence punishable u/s 302 IPC in Crl.A. No. 678/2007 by its judgment dated 08.12.2010, the material against accused Nos. 2 and 3 for the charge u/s 498A r/w Section 34 of IPC is very feeble and not convincing.: At the outset, he submits that in the FIR itself, it has been stated that prior to the date of incident, accused Nos. 2 and 3 were residing separately and it is only the accused No. 1 and the deceased who were in the house. It is his further submission that even in Ex. P.26-dying declaration reiterates this position and therefore, at no point of time, the appellants have resided with the deceased soon before her death. Hence, he submits that accused Nos. 2 and 3 could not have been found guilty of the offence proved against them. It is also submitted by him that when questioned by the Tahsildar, the deceased had given a statement to the effect that it is her husband and no one else who has poured kerosene and set her on fire. The deceased has also categorically stated in her dying declaration-Ex. P.26 that both accused Nos. 2 and 3 were living separately for many years prior to the date of incident. Hence, he submits that there is no material to substantiate the charge that appellant Nos. 2 and 3 are also part of the relatives who have harassed the deceased. Learned Counsel further submits that even the statement of two witnesses, PW. 4 and PW. 20 the father and mother on whose evidence, the trial Court placed reliance to base the conviction against the appellants is not cogent and clear and is not supported by any other independent witnesses. Hence, he submits that the trial Court ought not to have convicted the appellants for offences punishable u/s 498A r/w. 34 of IPC. Hence, he submits that the appeal may be allowed and the appellants may be acquitted of the charges leveled against them.

Learned HCGP on the other hand submits that there is intention on the part of these petitioners and sufficient material to hold that appellants have abused the deceased and have ill-treated her and hence, he submits that an offence punishable u/s 498A is clearly made out against these appellants and hence, he submits that this appeal may be dismissed.

I have gone through the entire evidence on record and also the judgment passed by this Court (in which I am a party) dated 08.12.2010 in Crl.A. No. 678/2007. In the normal course, the present appeal should have been heard along with the aforesaid appeal but inadvertently the present appeal is left out while considering the aforesaid appeal. I have also gone through the reasoning assigned by this Court in confirming the order of conviction of accused No. 1 the husband of the deceased.

Now we have to consider the evidence available against accused Nos. 2 and 3. Apart from the averments in the Ex. P.26 wherein, the deceased has stated that the appellants herein were abusing her on the ground that she belongs to some other community and in this connection, they were harassing her, it has been stated that after some time, they have separated from the appellants and the deceased and the accused No. 1 were living separately. PW. 4 is the mother of the deceased. She has stated that accused Nos. 2 and 3 were also assaulting her daughter and her daughter was telling the harassment given by the accused. Rest of the evidence of PW. 4 is directed against accused No. 1. PW. 5 who is the brother-in-law of the deceased, has given an omnibus statement to the effect that the deceased had given birth to a female child and in this connection, they were harassing her. Rest of the evidence of PW. 5 is also directed against accused No. 1 only. PW. 20-Sangappa Choukad-father of the deceased has also stated in his evidence that the deceased was informing him that all the three accused were insulting her saying that she is of a lower caste.

From the entire evidence on record, the material available against the appellants herein is what has been mentioned above and apart from that there is absolutely no evidence on record. On a careful consideration of the aforesaid materials, it can be seen that there is absolutely no material regarding the specific place, time and the date when these two accused have insulted or harassed the deceased. The statement made by them is omnibus in nature without giving any specific instances of harassment or ill-treatment by the appellants.

I have gone through the judgment of trial Court insofar as these appellants are concerned. So far as the statement of the deceased is concerned, Ex. P.15 is the statement recorded by the Tahsildar when the deceased was in the hospital. To question No. 5 as to who was the assailant, the deceased had answered before the Tahsildhar that her mother-in-law and brother-in-law were residing separately and her husband held her hand and poured kerosene oil and set fire on her saree. The same started burning. To question No. 8 as to how she sustained injuries, the deceased had answered that accused No. 1 himself had poured kerosene and set her on fire. To one more question at Sl. No. 12 as to how she sustained injuries and in what manner; the deceased had stated that she and her husband started fighting verbally and thereafter, her husband held both her hands pulled her and thereafter, brought kerosene and poured on her body and then he pulled her to the kitchen and then set her on fire. It has been recorded by the Tahasildar and Taluka Executive Magistrate, Ramadurga, who is examined as PW. 14 during the trial. Further the Medical Officer, at Ramadurg Hospital, has also attested the said document-Ex. P15 stating that the said statement of the injured was recorded before him.

From the materials so produced by the prosecution itself, it is clear that the part of the accused Nos. 2 and 3 in setting fire to the deceased is ruled out and the learned Sessions Judge has rightly acquitted them of the said offences. So far as the offence punishable u/s 498A is concerned, in view of the fact that other witnesses have turned hostile to the case of the prosecution and the fact that three witnesses whose evidence has been discussed above are very close relatives of the deceased and further the fact that no specific particulars like place, date and time at which they had meted out harassment to the deceased is clearly brought out by the prosecution, I am of the opinion that the benefit of doubt can be given the appellants. There are no strong materials to hold the appellants guilty of the offence u/s 498A of IPC. In that view of the matter, I am of the considered view that the appellants Nos. 2 and 3 are entitled for an order of acquittal on the ground that the prosecution has not placed any clear and cogent evidence to hold that they have meted out the cruelty and harassment to the deceased. Hence, the following order is passed:

ORDER

i) The appeal is allowed;

ii) The appellants who are accused Nos. 2 and 3 in S.C. No. 219/2002 on the file of the Fast Track Court, Ramadurg are acquitted of the offences leveled against them;

iii) The bail bonds if any executed by them is hereby discharged;

iv) Fine amount if any paid shall be refunded to them.