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Sri. Madeyanda C. Rajesh vs The State Of Karnataka on 11 December, 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11TH DAY OF DECEMBER, 2019

BEFORE

THE HON’BLE MR. JUSTICE H.P. SANDESH

CRIMINAL APPEAL No.2069/2017

BETWEEN:

SRI MADEYANDA C. RAJESH,
AGED 42 YEARS,
SON OF SRI MADEYANDA C. CHINNAPPA,
AGRICULTURIST BY PROFESSION,
RESIDENT OF BALLAMAVATI VILLAGE,
NAPOKLU-571 201.
MADIKERI TALUK
KODAGU DISTRICT. … APPELLANT

(BY SRI N. SRINIVAS, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
REPRESENTED BY THE SUB-INSPECTOR OF POLICE,
NAPOKLU POLICE STATION-571 201.
KODAGU DISTRICT.

REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001. … RESPONDENT

(BY SRI K. NAGESHWARAPPA, HIGH COURT GOVERNMENT PLEADER)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER DATED 7.12.2017 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU,
MADIKERI IN S.C.NO.77/2015 – CONVICTING THE APPELLANT/
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ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION
498(A) AND 306 OF INDIAN PENAL CODE.

THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 11.11.2019, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:

JUDGMENT

This appeal is filed challenging the judgment of conviction

and sentence dated 7.12.2017 passed in S.C.No.77/2015, on the

file of the I Additional District and Sessions Judge, Kodagu at

Madikeri for the offences punishable under Sections 498A and

Section306 of IPC.

Brief facts of the case:

2. It is the case of the prosecution that the accused is an

ex-army serviceman who took voluntary retirement and

presently working as agriculturist. The accused married

deceased Shruthi on 14.11.2008. At the time of marriage, the

accused was in service. The deceased was working at Bangalore

and after voluntary retirement of her husband, both went and

settled in their native place. Out of the wedlock, they are having

two children. Till the accused was in service, they were having

cordial relationship. Thereafter, the accused was addicted to

alcohol and used to ill-treat the deceased. The deceased was a
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graduate and had written the D.Ed. examination and had worked

as a teacher for some time. The accused subjected the deceased

for both mental and physical harassment. As a result, the

deceased committed suicide on 27.12.2014 at about 5.45 p.m.

by hanging herself in the bedroom using chudidar veil. Hence, a

case came to be registered against the accused for the offences

punishable under Sections 498A and Section306 of IPC. The police

investigated the case and filed the charge-sheet against the

accused for the said offences.

3. The prosecution in order to prove the case against the

accused, examined P.Ws.1 to 14 and got marked Exs.P.1 to 12

and M.Os.1 to 4. The accused was also subjected to 313

statement. The accused also examined two witnesses as D.Ws.1

and 2 and relied upon Exs.D.1 to 10. The Court below

considering the material on record, convicted the accused for the

offences punishable under Sections 498A and Section306 of IPC and

sentenced to undergo rigorous imprisonment for three years with

fine of Rs.5,000/- under Section 498A of IPC and in default of

payment of fine to undergo simple imprisonment for two months

and; six years rigorous imprisonment with fine of Rs.7,500/-
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under Section 306 of IPC and in default of payment of fine to

undergo simple imprisonment for three months. The accused

being aggrieved by the judgment of conviction and sentence has

filed the present appeal before this Court.

4. In the grounds of appeal, the accused has contended

that the Trial Court has committed an error in convicting the

accused based on the evidence of P.W.14, who was aged about

five years at the time of incident. She is staying with her

maternal grandparents and she was tutored. The Court below

failed to consider the evidence of P.W.14 in right perspective.

The Court below ought to have taken more care while

considering the evidence of minor daughter of the deceased and

the accused.

5. The Court below failed to take note of the fact that the

complaint came to be filed even before P.W.1 reached the

hospital to see his elder sister. The conduct of P.W.1 is very

clear that the complaint is filed with vengeance.

6. The Court below much discussed on the injury found on

both the thighs of the deceased. According to the witnesses, the

injury is caused by assault of club by the accused. The doctor
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who conducted the post mortem on the body of the deceased

gave the opinion that the said injuries can be caused when the

dead body was brought down after she was found hanging.

Hence, it is clear that the injuries found on the thighs of the

deceased are because the body was brought down. The doctor

did not specify that the injuries are due to the assault by the

club.

7. The Court below also failed to take note of the evidence

of prosecution witnesses, who have admitted that relationship

between the two families are very cordial and the couple used to

attend all the functions together with their children. The

witnesses, who have been examined before the Court are all

relative witnesses. The Court below also committed an error in

coming to the conclusion that Section 113A of the Indian

Evidence Act, 1872 has not been rebutted.

8. The Trial Court also erroneously came to the conclusion

that the accused was consuming alcohol only based on the

statement of the witnesses and the said conclusion is also

erroneous. There is no cogent evidence that the accused

subjected the deceased for both mental and physical cruelty and
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the Court below has committed an error in convicting the

accused in the absence of any material before the Court.

9. The learned counsel for the appellant/accused in his

arguments vehemently contended that except the relatives, no

independent witnesses have been examined before the Court

below. P.Ws.1 to 4, in their evidence have not deposed that the

accused subjected the deceased for any harassment and that the

panchayat was held. The evidence of P.Ws.1 to 4 is clear that

both husband and wife were cordial. The counsel also contended

that in the cross-examination of P.W.3, he categorically admitted

that both the accused and the deceased were attending the

functions, if any, from both the sides. P.W.2 also admitted that

laptop was purchased by availing the loan to the deceased. It is

also elicited that the deceased had not left the matrimonial

house at any time for harassment.

10. The Court below erroneously comes to the conclusion

based on the evidence of P.W.4, who is a tutored witness. On

perusal of evidence of P.W.14, minor daughter of the deceased,

it is evident that it is full of exaggeration. P.W.14 deposed that

her father has slit the neck of the mother. But there is no
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material before the Court. The other witness is P.W.7, who is

also the relative. The main reason for committing the suicide

was she had not fared well in the D.Ed. examination which she

had attended on the very same day and also she was having a

weak mind. Hence, she took the extreme step and not on

account of any harassment. Hence, the impugned judgment of

conviction is liable to be set aside.

11. Per contra, the learned High Court Government Pleader

appearing for the State in his arguments would contend that the

witnesses who have been examined before the Court, though

they are the relative witnesses, their evidence cannot be

discarded only on the ground that they are relative witnesses.

The Court has to take note of the evidence available on record in

toto and should not be carried away only on the ground that the

witnesses are relative witnesses. It is also contended that the

Court below considered Section 106 of the Indian Evidence Act

since the death had occurred in the matrimonial house. There is

no explanation on the part of the accused with regard to injuries.

It is also contended that the evidence of prosecution witnesses

and also the doctor is that there were injuries on both the thighs
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of the deceased and the same is also not explained by the

accused how those injuries were sustained by the deceased. The

evidence is very clear that the accused subjected her for assault

with club. As a result, those two injuries were sustained and

thereafter she sent a message to her brother, which is evident in

terms of Ex.P.8 mahazar and in the said message also the

deceased has categorically stated that she was assaulted with

club. The evidence of P.W.14, minor daughter, is also clear that

the accused assaulted the deceased with club. When such being

the case, the Court below rightly appreciated both oral and

documentary evidence.

12. The counsel would also contend that Section 113A of

the Indian Evidence Act presumes with regard to cruelty and

death. Hence, the Court below considered the presumption and

the said presumption is also not rebutted by the accused. Hence,

the Trial Court has not committed any error in appreciating both

oral and documentary evidence. Hence, there are no grounds to

interfere with the judgment of conviction of the Trial Court.

13. The learned counsel for the appellant in support of his

contention relied upon the judgment in the case of SectionATMARAM v.
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STATE OF MAHARASHTRA reported in (2013) 12 SCC 286.

By referring this judgment, the counsel would contend that the

Apex Court in this judgment discussed in detail with regard to

Sections 306 and Section498A of IPC, explanation (a) or (b) insofar as

to abetment of suicide and also with regard to invocation of

Section 113A of the Evidence Act and held that there must first

be evidence to establish that such husband or the relative of her

husband committed cruelty of the nature described in clauses (a)

or (b) of the explanation to Section 498A of IPC.

14. In the case on hand, there is no material before the

Court that the accused had subjected the deceased for

harassment and the complainant had no personal knowledge

about the cause of death and the witnesses who have been

examined before the Court also have not made any enquiry. In

the absence of any material about the same, invoking of

Sections 306 and Section498A of IPC does not arise and Section 113A of

the Indian Evidence Act cannot be invoked. In the case on hand

also there are no material to draw the presumption under

Section 113A of the Indian Evidence Act and there is no cogent

evidence to convict the accused for the offences punishable
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under Sections 306 and Section498A of IPC. Hence, this judgment is

aptly applicable to the case on hand.

15. The counsel relied upon the judgment in the case of

SectionSANJU ALIAS SANJAY SINGH SENGAR v. STATE OF M.P.

reported in (2002) 5 SCC 371. Referring this judgment, the

counsel would contend that in this judgment the Apex Court has

held that presence of mens rea is the necessary concomitant for

instigation and words uttered in a quarrel or on the spur of

moment, such as “to go and die”, cannot be taken to be uttered

with mens rea. There must be material before the Court that

suicide was proximate to the quarrel and also to examine

whether suicide was on account of direct result of quarrel. In the

case on hand also there is no evidence before the Court that

there was a proximity to the quarrel and the witnesses who have

been examined before the Court deposed that they were cordial.

When such being the case, the question of invoking Section 306

of IPC does not arise.

16. Having heard the arguments of the learned counsel

for the appellant and the learned High Court Government
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Pleader appearing for the State, the points that arise for the

consideration of this Court are:

(i) Whether the Court below has committed an error in

convicting the accused for the offences punishable

under Sections 306 and Section498A of IPC and it requires

interference of this Court?

(ii) What order?

Point (i):

17. The case of the prosecution in nutshell is that the

accused assaulted the deceased with the club and subjected her

for both mental and physical harassment. Hence, the deceased

took the extreme step of committing suicide in the matrimonial

home on 27.12.2014 at about 5.45 p.m. The prosecution in

order to prove the charges leveled against the accused examined

P.Ws.1 to 14 and got marked the documents at Exs.P.1 to 12

and M.Os.1 to 4. Now, this Court keeping in view the contentions

urged by the learned counsel for the appellant and the learned

High Court Government Pleader appearing for the State has to

re-appreciate both oral and documentary evidence available on

record as to whether the Court below has committed an error in

convicting the accused.

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18. The prosecution examined the complainant as P.W.1,

who is the brother of the deceased. P.W.1 in his evidence states

that the deceased’s marriage was solemnized with the accused

on 14.11.2008. The accused was working in army and after

about 2½ years of the marriage, the accused came back and

started to live at his native place along with his sister. It is his

evidence that on the date of death of his sister, she sent a

message on his mobile in Kodava language that the accused had

assaulted her with club and also abused her that she is not fit to

live with him and to go and die. He went to the house at about

7.00 p.m. and informed his parents about the same. By that

time, his sister – P.W.2 called him and informed that the

deceased had expired and the same was communicated to her

by the accused. Immediately along with his parents he went to

Napoklu police station and gave the complaint and they were

informed that the body was shifted to mortuary of Napoklu

Government Hospital. P.W.14 – minor daughter of the deceased

came running and informed that the deceased was beaten to

death by the accused with club. He identifies his signature on the

complaint. It is also his evidence that on 4.1.2015 again he went

to the police station and produced Exs.P.3 and 4 – invitation
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card and the marriage photographs, which were seized under

mahazar Ex.P.2. It is also his evidence that he had noticed

injuries on the neck and black coloured marks on both the thighs

on the dead body of the deceased. He was subjected to cross-

examination.

19. In the cross-examination, he admits that the

deceased had not gone and stayed with the accused when the

accused was in army. The deceased was working in Bengaluru

for some time after her marriage and thereafter went and stayed

in the house of the accused at Napoklu. He came to know that

the accused had come back from army for his personal medical

reasons. It is also elicited that the deceased joined as a teacher

initially at Government school and thereafter in a private school

at Napoklu and had also worked at Sacred Heart School and

thereafter at Ankur School. The deceased had completed her

graduation and wanted to pursue her studies and she took D.Ed.

examination. It is suggested that the deceased was highly

depressed since she did not perform well in Kannada

supplementary examination of D.Ed. Course on 27.12.2014 and

the same was denied. He admits that he has not downloaded or
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saved the message since his phone was not a smart phone. The

text of the message sent by the deceased is not mentioned in

Ex.P.1. He also admits that in Ex.P.1 he has not stated that the

father of the accused had also assaulted the deceased. He

admits that they used to attend functions and other festivals. He

did not enquire P.W.14 as to when, where and how the accused

assaulted the deceased. He admits that the accused had filed a

case seeking for custody of his children. He admits that he had

seen the injuries on the deceased in the mortuary when the

Tahsildar was conducting inquest. He had informed his parents

and sister about the message sent by the deceased.

20. P.W.2 is the sister of the deceased. P.W.2 in her

evidence she deposed that the accused and the deceased were

having cordial relationship for about two years till the accused

came back from army. Thereafter, the accused started to harass

the deceased after consuming alcohol and her sister was

informing the same. It is also her evidence that on 26.12.2014,

the deceased had called her over phone and informed that she

could not bear the torture given by the accused and was

provoking her to die. The deceased had called her over phone on
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27.12.2014 at 5.00 p.m., but she could not receive her phone

call due to her pre-occupation since she was pregnant. However,

when she returned the call, the accused received the phone call.

On enquiry, he informed about the death of her sister and

disconnected the call. She came and saw the dead body in the

mortuary and she came to know that she was subjected to

assault and noticed the injuries on the neck and both thighs of

the deceased and also came to know that the accused abused

her to go and die and she is not fit to lead the life. She was

subjected to cross-examination.

21. In the cross-examination, she admits that the

Tahsildar had not enquired her and she has not given any

statement relating to phone call made on 26.12.2014 and the

accused provoking the deceased to commit the suicide. The

deceased did not inform about any particular reason for which

the accused was harassing her. But she stated that the accused

used to consume alcohol and harass her. The deceased had

never come and stayed in her parents’ house because of

harassment given by the accused. She admits that the deceased

was having D.Ed. examination on the next day and her husband
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would be taking her to the said examination. The accused and

the deceased used to participate in all family functions. The

accused had transferred Rs.25,000/- to her bank account on

27.1.2014 towards the purchase of laptop. It was suggested that

the accused did not like her further education and even though

he did not come in her way and the same was denied.

22. P.W.3 is the father of the deceased. In his evidence he

reiterates the evidence of P.Ws.1 and 2. He states that the

deceased was frequently calling his other daughter and

informing about the harassment given by the accused. He was

subjected to cross-examination. In his evidence he admits that

there was no specific reason for the accused to have assaulted

the deceased. Further, he admits that the accused and his family

members were visiting his house and they were also visiting the

house of the accused and their relationship with each other was

cordial. He admits that his daughter had possessed better

educational qualification than the accused. It was suggested that

since they knew that the accused was working in army and had

lands and hence forced the deceased to marry him and the same

was denied. He says that the deceased was always sending SMS
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to P.W.1. He admits that his daughter never came and stayed in

his house complaining of any mental and physical harassment

given by the accused. It is suggested that P.W.1 has tutored him

to give evidence and the same was denied.

23. P.W.4 is the mother of the deceased and she also

reiterated the evidence of P.Ws.1 to 3. She also reiterates that

she found injuries on neck and both the thighs of the deceased.

She was subjected to cross-examination. It is elicited that the

deceased had not gone and stayed with the accused at the place

of his posting in army since the accused did not take her. She

also admits that the accused and his family members used to

visit her house and they also used to visit the house of the

accused. The deceased had never come to her house because of

the harassment given by the accused. It is also her evidence

that the deceased had never informed her that she could not

tolerate the harassment given by the accused and would commit

suicide. The accused never prevented her daughter from working

as a teacher or pursuing her studies. It is suggested that since

the deceased was depressed after coming back from the
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examination, she herself committed suicide and the accused is

not responsible for the death and the same was denied.

24. P.W.5 is the inquest witness. In her evidence, she

states that Tahsildar came and conducted the inquest mahazar.

It is her evidence that she noticed ligature mark on the neck and

also injuries on her thighs. She identifies her signature in the

inquest mahazar as Ex.P6. It is also her evidence that she came

to know that deceased had committed suicide because of her

frequent quarrel with the accused.

In the cross-examination, she admits that she does not

have any personal knowledge about the relationship between the

deceased and the accused and further admits that both the

accused and the deceased used to come and participate in all

family functions along with their children.

25. P.W.6 is an independent hearsay witness. In her

evidence, he states that he came to know about the death of the

deceased through his parents and they informed that the

deceased committed suicide because of mental harassment

given by the accused, since he used to consume alcohol and

assault her.

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In the cross-examination, he admits that, he does not

know about the relationship between the accused and deceased

since, he was staying at Bengaluru.

26. P.W.7 in his evidence he states that the daughter of

the deceased came running and informed P.W.4 that the accused

had assaulted her mother with club and committed her murder.

He also states that there were frequent quarrel between the

deceased and accused and accused himself has informed him

about such quarrel on a couple of occasions.

In the cross-examination, it is elicited that relationship

between their family and the family of the accused was cordial

till the death of the deceased. It is suggested that daughter of

the deceased Chethana did not come and inform anything to

them in the hospital and the same was denied.

27. P.Ws.8 and 9 are the mahazar witnesses to spot

mahazar, Ex.P8 and they do not support the case of the

prosecution.

28. P.W.10 is the Doctor, who conducted postmortem

examination. In his evidence, he states that postmortem was
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conducted between 2.45 p.m. to 4.00 p.m. On examination, he

found ligature mark on the neck and on dissection found

antemortem ligature mark. It is also his evidence that he found

haematoma measuring about 2 x 5 cms. over left thigh

posterior-lateral part and measuring 4 x 7 cms. over right thigh.

Posterior part is present. He opined that the death of the

deceased was due to asphyxia as a result of hanging and gave

the postmortem report in terms of Ex.P9. It is also his evidence

that, haematoma on the thigh could be caused with an assault

by means of club. The said haematoma could have been caused

between 12 to 24 hours, prior to postmortem examination.

He was subjected to cross-examination. In the

cross-examination, it is elicited that he has not mentioned in

Ex.P9 that haematoma was either postmortem or antemortem in

nature. He further admits that he cannot state if the said

haematoma is antemortem in nature or not by looking at Ex.P9

only. Whenever any injury is caused to a person, till he dies, the

same would be considered as antemortem in nature. This

witness is re-examined by learned Public Prosecutor. He states

that there would be blood clot (haematoma) only when such

person is assaulted before his death and haematoma cannot be
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caused after the death of a person. The witness is further cross-

examined by the learned counsel for the accused and it is

elicited that it is possible that such haematoma could be caused

when the dead body of the deceased was brought down, after

she was found hanging.

29. P.W.11 is the Tahsildar, who conducted inquest in

terms of Ex.P6. He states that he conducted inquest in the

presence of P.W.5, C.Ws.8 and 10 and identifies his signature as

Ex.P6(b). He states that during inquest, he noticed ligature

marks on the neck and haematoma or contusions were present

on the left and right thighs.

He was subjected to cross-examination. In the cross-

examination, a suggestion was made that P.Ws.2 to 4, 6 and 7

have not given any statement before him and he has created the

same at the instance of the police and the same was denied. It

is further suggested that he did not notice any injuries and the

same was denied.

30. P.W.12 is the Assistant Sub-Inspector of Police, who

arrested the accused at Napoklu Government Hospital and he
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states that he gave the report in terms of Ex.P10. The evidence

of P.W.10 is not challenged.

31. P.W.13 is the Police Sub-Inspector, who received the

complaint in terms of Ex.P1 and registered FIR in terms of

Ex.P11. It is also his evidence that, thereafter, he went to the

hospital and deputed P.W.12 to trace the accused. P.W.12

arrested the accused and produced before him in terms of the

report at Ex.P10. It is also his evidence that, after the post

mortem, P.W.11 produced the belongings of the deceased i.e., a

pair of earrings and silver toe rings of the deceased. The dead

body was subjected to inquest and also conducted spot mahazar

in terms of Ex.P8 and seized the veil which was used for

committing suicide and also seized the mobile phone of the

deceased and noted the contents of the message available in the

mobile phone which is marked as Ex.P8(d). It also his evidence

that he has recorded the further statement of P.Ws.1 to 4 and 7

and C.Ws.5 and 11. That on 04.01.2015, P.W.1 came to the

police station and produced marriage photographs and he seized

the same by conducting the mahazar in terms of Ex.P2. The

marriage invitation card is marked as Ex.P3 and photographs are
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marked as Ex.P4. It is also his evidence that he received the

post mortem report in terms of Ex.P9 and inquest mahazar in

terms of Ex.6 and thereafter, he handed over further

investigation to C.W.22 and C.W.22 after investigation, filed the

charge sheet. It is also his evidence that after filing of the

charge sheet, he received the call details report from Bharti

Airtel Limited relating to the mobile phone of the deceased in

terms of Ex.P.12

He was subjected to cross-examination. In the cross-

examination, he admits that while conducting spot mahazar, the

parents of the accused were present and he has not enquired

and collected any details to show that the mobile phone and the

Sim card from which Ex.P8(d) SMS was sent, belonged or stood

in the name of the deceased. He has also not collected any

document to show that mobile phone and the Sim Card from

which Ex.P8(d) SMS was received, belonged or stood in the

name of P.W.1. He also admits that he did not try to collect the

said mobile phone from P.W.1 immediately after he had lodged

Ex.P1, since P.W.1 informed him that the said message was

deleted from his mobile phone. It is suggested that Ex.P8(d) is

created for the purpose of the case and the same was denied.
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He admits that service provider has not given information about

the name of the person, in whose name the mobile Sim card

bearing No.9902594310 stands.

32. P.W.14 is the daughter of the deceased and accused.

In her evidence, she states that her father and deceased mother

are her parents and P.Ws.3 and 4 are her grand parents. It is

her evidence that her mother expired since, her father had

assaulted her. She does not remember the date or time at

which her father had assaulted her mother. But she claims that

she remember that the accused had assaulted her mother with a

club in the evening. It is also her evidence that her parents

used to always quarrelling with each other at home. The

accused had assaulter her mother since, the accused came home

after consuming alcohol and had asked her mother for coffee. It

is also her evidence that she has informed P.Ws.1, 3 and 4 about

the assault made by the accused on her mother with club.

She was subjected to cross-examination. In the cross-

examination, she admits that now she is staying along with her

grand parents. It is also elicited that on the day of her mother’s

death, all of them had gone to the town in a jeep, after having
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breakfast. It is also her evidence that they had lunch in a hotel.

Nobody informed her about the quarrel between her parents and

she does not know for what reason they were quarrelling with

each other. It is also elicited that her mother never made any

complaint to her that the accused was always quarrelling and

assaulting her after consuming alcohol. But she claims that she

has personally seen the accused slitting the neck of her mother

and she did not see anything else apart from the accused slitting

the neck of her mother. She further admits that nobody

informed that the accused had assaulted her mother with club.

33. The accused also examined one witness as D.W.1,

who is the Principal of Saraswathi D.Ed Collge, Madikeri. In her

evidence, she states that the deceased took D.Ed exam and he

also marked Exs.D7 and D8 i.e. admission tickets. Ex.D7

pertains to D.Ed examination of first year conducted during July,

2014 and since the said student did not pass in one paper, she

has taken up supplementary exam conducted on 27.12.2014 as

per Ex.D8.

In the cross-examination, he admits that exam as per

Ex.D8 was held from 10.00 a.m. to 1.00 p.m. and he cannot
26

state the student had passed the said examination without

looking into the result sheet. The results are usually declared

after about 1½ months of the exam.

34. D.W.2 is the Doctor, who gave the treatment to the

deceased. In his evidence, he states that on 23.10.2013, one

K.K. Shruthi Rajesh had taken treatment in his hospital and she

was complaining of pain and swelling on her ankle. On

examination, they found that she had sustained a sprain and

there was no fracture. On 13.11.2013, she again came and got

removed the POP and through this witness Exs.D9 and D10 are

marked.

In the cross-examination by the learned Public Prosecutor,

it is elicited that said K.K.Shruthi Rajesh was not admitted as

inpatient in the hospital and she was only treated as out patient.

35. Now let this Court consider both oral and

documentary evidence adduced by the prosecution as well as the

defence, keeping in view the contentions urged by learned

counsel for the accused and learned High Court Government

Pleader for the respondent-State.

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36. The main contention of the learned counsel for the

accused in his argument is that the witnesses, who have been

examined before the Court are all relative witnesses. P.Ws.1

and 2 are brother and sister of the deceased, P.Ws.3 and 4 are

the parents of the deceased. P.W.7 is the brother-in-law. There

is a force in the contention of the learned counsel for the

accused that no independent witnesses have supported the case

of the prosecution. When the witnesses are relative witnesses,

the Court has to analyze the evidence available before the Court

with due care and caution. Merely because the witnesses are

relatives of the deceased, their evidence cannot be discarded in

toto. The Court has to examine whether the evidence of these

witnesses inspires the confidence of the Court to accept the case

of the prosecution.

37. No doubt, in the evidence of P.Ws.1 to 4 and also

P.W.7, it is elicited that the accused and deceased were cordial,

however their evidence is that the accused used to consume

alcohol and was subjecting the deceased for harassment. It is

also important to note that no panchayath was held in that

regard as contended by the learned counsel for the accused.
28

However, the fact remains before the Court is that, P.W.1 has

categorically stated that on the date of the incident in the

evening, the deceased has sent SMS in Kodava language to him

stating that the accused assaulted her with club which is also

recorded in the spot mahazar in terms of Ex.P8(d). It is also the

evidence of P.W.1 that, in the message, her sister has stated

that she was subjected to assault with the club and the deceased

had also abused her that she is not fit to lead her life and

scolded her to go and die which is evident from Ex.P8.

38. It is also important to note that the Investigating

Officer, who conducted the investigation, in his evidence states

that he did not make any effort to get the report with regard to

the message sent by the deceased to P.W.1. It is also important

to note that he categorically admits that he did not seize the

mobile of P.W.1, but he claims that P.W.1 had informed him that

the said message was deleted inadvertently.

39. It is pertinent to note that P.W.14, the daughter of

the accused and deceased in her evidence states that the

accused had assaulted her mother with club and it is also the

evidence of P.Ws.1 to 4 that P.W.14 came and told that accused
29

assaulted her mother with club. No doubt in the cross-

examination of P.W.14, it is elicited that except slitting the neck

of her mother, she did not observe anything, but in her chief

evidence, she has spoken with regard to the assault made by the

accused with club. The age of P.W.14 at the time of the incident

was only five years and when she was examined before the

Court below, she was aged about eight years. The Court also

before recording the evidence of P.W.14 has put Court questions

and only after confirming that she is capable to understand the

questions posed to her, the evidence was recorded. Though

P.W.14 did not say about the date or time as to when her father

had assaulted her mother, but she categorically states that her

father assaulted with the club in the evening.

40. It is also important to note the evidence of P.W.1

that he received the message in the evening and Ex.P8 mahazar

discloses that the message was sent at 5.45 p.m. It is also

important to note that inquest was conducted by the Tahsildar,

who has been examined as P.W.11. In his evidence, he

reiterates that he noticed the injuries on both the left and right

thighs. The inquest mahazar also discloses that there were
30

injuries on both the left and right thighs. The post mortem

report marked as Ex.P9 also discloses that there were injuries on

the left and right thighs. The Doctor, who has been examined as

P.W.10 in his evidence states that the death was due to asphyxia

as a result of hanging. It is also important to note that in his

evidence, he categorically states that there was haematoma

measuring 2 x 5 cms. over left thigh posterior-lateral part and 4

x 7 cms. over right thigh posterior part. It is his evidence that,

the haematoma on the thigh could be caused when an assault is

made by means of club. The said haematoma could have been

caused between 12 to 24 hours prior to the post mortem

examination. He conducted the post mortem from 2.45 p.m. to

4.00 p.m. on the next day.

41. According to the prosecution, the incident has taken

place in the evening on the previous day and the time of

haematoma caused between 12 to 24 hours matches with the

same. No doubt in the cross-examination of P.W.10 it is elicited

that he cannot state the said haematoma is antemortem in

nature or not only by looking at Ex.P9. The witness P.W.10 is

further examined by learned Public Prosecutor and got elicited
31

that the blood clot (haematoma) occurs only when a person is

assaulted before the death and haematoma cannot be caused

after the death of a person. In the further cross-examination by

the learned counsel for the accused, it is elicited that, such

haematoma could have been caused when the dead body of the

deceased was brought down after she was found hanging. But

there is no explanation on the part of the accused in his 313

statement that those injuries have been caused while bringing

down the dead body of the deceased from hanging position as

suggested.

42. It is also important to note that the measurement of

the injuries mentioned in the evidence of the Doctor is not a kind

of injuries that could have been caused while bringing the dead

body of the deceased from the hanging position. It is also

important to note that, except making such suggestion to

P.W.10, the Doctor, no other suggestion was made with regard

to the injuries sustained by the deceased. It is pertinent to note

that, in the evening itself, the deceased has sent the message to

P.W.1 and the same is marked in Ex.P.8, mahazar and the

Investigating Officer also did not collect the report in respect of
32

the message available in the mobile phone of the deceased,

except seizing the same. However, an explanation is given by

the Investigating Officer that P.W.1 had informed him that the

messages available in his mobile phone was deleted. Merely

because of lapse on the part of the Investigating Officer, the

accused will not get the benefit. It is pertinent to note that

when the complaint was given by P.W.1 in the mid night on the

very same day, a specific recital was made in the complaint that

he had received the SMS from his sister about the act of the

accused and subjecting her to physical assault. Both in the

complaint as well as in the First Information Report, the said

contents of the complaint are mentioned and hence, it cannot be

held that the same is a after thought.

43. Under the circumstances, the Court has to give

credence to the evidence of P.W.1 and the evidence of P.W.14,

whose evidence is clear that the accused assaulted her mother

with club. The injuries found on both the thighs of the deceased

substantiates the case of the prosecution and there is no

explanation on the part of the accused. It is also pertinent to

note that the evidence of the Doctor is clear that the injuries
33

sustained are antemortem in nature and the same could have

caused 12 to 24 hours of conducting the post mortem. These

are the materials available on record which substantiates the

case of the prosecution with regard to subjecting the deceased

to assault. No doubt in the cross-examination of the witnesses it

is elicited that both the accused and deceased were cordial, it is

clear that the accused used to consume alcohol and was

subjecting the deceased to assault.

44. The citation given by the learned counsel for the

accused will not come to the aid of the accused, no doubt there

is no dispute with regard to the principles laid down by the

Hon’ble Apex Court. In the case on hand, it is to be noted that

in Sanju’s case, the Hon’ble Apex Court has held that there must

be presence of mens rea to utter the words “to go and die”.

Merely because he uttered the words “to go and die” cannot

constitute mens rea and the Court also cannot convict the

accused by mere uttering of words. In the case on hand, it is to

be noted that the accused has assaulted the deceased with the

club and thereafter, he uttered the words, she is not fit to live
34

Hence, the said judgment will not come to the aid of the

accused.

45. In Atmaram’s case, the Hon’ble Apex Court has held

that there must be proximity to take a decision to commit

suicide and that the husband committed cruelty of the nature

described under Clause (a) and (b) of the Explanation to Section

498 of IPC. But in the case on hand, it is to be noted that the

incident has taken place in the evening and the accused has

assaulted the deceased with club and medical evidence also

corroborates that the deceased was subjected to assault and she

had sustained injuries to both the thighs. When such being the

case, when there is proximity to cause of death and only after

assault, she took the extreme step to commit suicide and the

same is also intimated to the brother by mode of SMS hence, the

Trial Court has not committed any error in invoking Sections

498-A and Section306 of IPC.

46. It is also important to note that the Court below has

observed that the evidence led in by the prosecution clearly

invokes the presumption under Section 113-A of the Evidence

Act and the accused has failed to rebut the said presumption
35

with any counter-evidence. In the case on hand, it is to be

noted that the deceased took the extreme step to commit

suicide in the matrimonial house, no doubt on the particular day,

all of them had been to town and the deceased also attended

D.Ed examination. The deceased did not fair well in the

examination and she was having weak mind and this contention

also cannot be accepted for the reason that she already failed in

the exam and on that day she took supplementary examination.

But that does not mean that no such incident has taken place in

the evening. The evidence of the prosecution corroborates that

an incident has taken place in the evening. As already pointed

out, there is no explanation on the part of the accused regarding

the injuries sustained by the deceased. The Court below has

also invoked Section 106 of the Evidence Act, since the death

has taken place inside the house of the deceased. The very

contention of the learned counsel for the accused that there was

no harassment and both the accused and deceased were cordial

will not come to the aid of the accused. The fact that she has

sustained injuries to both the thighs and there was haematoma

on both the thighs is not in dispute and the same has not been

explained. Under the circumstances, there is a force in the
36

contention of the learned High Court Government Pleader for the

respondent-State that P.W.1 received the message from the

deceased prior to her death and Court below has rightly invoked

Sections 113-A and Section106 of the Evidence Act.

47. Having considered both oral and documentary

evidence available on record, the evidence of P.Ws.1 to 4 and 7

coupled with the evidence of Doctor P.W.10, particularly the

evidence of P.W.14, the minor daughter, no doubt there is an

embellishment in the evidence of P.W.14, it is true that she

states in the cross-examination that accused slit her mother’s

neck. The Court has to give credence to the evidence of P.W.14

which she has narrated in her chief evidence. It is natural that

in the evidence of a minor witness, there would be some

embellishment and improvement, the same cannot be a ground

to discard the evidence of a minor witness in toto.

48. Considering the evidence of witnesses particularly,

P.Ws.1 to 4 and 7, though they are relative witnesses, their

evidence cannot be discarded. In that regard, this Court would

like to refer the judgment in the case of Khurshid Ahmed Vs.

State of Jammu and Kashmir reported in 2018 (3) SCC Cri
37

61 wherein the Hon’ble Apex Court has held that there is no

proposition in law that relatives are to be treated as untruthful

witnesses and if the evidence inspires the confidence of the

Court that an incident has taken place, their evidence cannot be

discarded. Hence, the contention that except relative witnesses,

there is no independent witnesses available before the Court

cannot be accepted. The Court below in detail has discussed

both oral and documentary evidence available on record and has

given its anxious consideration while appreciating both oral and

documentary evidence. Hence, I do not find any reason to

reverse the findings of the Trial Court.

49. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

Sd/-

JUDGE

MD/ST

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