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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
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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
