Karnataka High Court Suresh vs State By Kollegal Town Police on 6 March, 2014Author: N.Ananda

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 6TH DAY OF MARCH 2014 BEFORE

THE HON’BLE MR.JUSTICE N.ANANDA

CRIMINAL APPEAL NO.865 OF 2013

Between:

Suresh

S/o Chikkamalingaiah

Age: 33 years, Occ: Nil

Add.: No.4/27(R), Bheema Nagar

Kollegal Town … Appellant (By Sri.Venkatesh P.Dalwai, Advocate) And:

State by

Kollegal Town Police … Respondent (By Sri.B.Visweswaraiah, HCGP)

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This Criminal Appeal is filed under Section 374(2) Cr.P.C praying to set aside the order dated 5.4.2013 passed by the Presiding Officer, FTC, Kollegal in S.C.No.17/2010 convicting appellant/accused for offence punishable under Section 498(A) and 306 IPC. This Appeal coming on for hearing this day, the Court delivered the following:-

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JUDGMENT

The appellant (accused No.1) was tried along with his parents (accused 2 and 3) for offences punishable under Sections 498A and 306 IPC. The learned Trial Judge acquitted the parents of accused No.1 (accused 2 and 3) and convicted the appellant (accused No.1) for offences punishable under Sections 498A and 306 IPC. Therefore, he is before this Court.

2. I have heard Sri Venkatesh Dalwai, learned counsel appointed by the High Court Legal Services Committee to argue the case of accused. I have heard learned Government Advocate for State.

3. Before adverting to appreciation of evidence and submissions made at the Bar, it is necessary to state inter se relationship of accused and some of prosecution witnesses and also certain facts which are not in dispute.

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Accused No.1 is the husband of deceased Susheela. Their marriage was performed in the year 1998. Accused 2 and 3 are the parents of accused No.1. PW1 – Shivaraju is the father of deceased Susheela. PW2 – Somajamma is the mother of deceased Susheela. PW3 – Umesha S is the younger brother of deceased Susheela. PW4 to PW6 are the relatives of deceased Susheela. PW7 – Kum.sonu is the daughter of accused No.1 and deceased Susheela. PW8 – Santhoshkumar is the son of accused No.1 and deceased Susheela.

After marriage accused No.1 and deceased were living in the house of accused 2 and 3. There used to frequent quarrels. Therefore, accused No.1 set up a separate house, wherein he was living with deceased. Accused No.1 and deceased have 2 children, namely, PW7 – Kum. Sonu and PW8 – Santhoshkumar by their marriage.

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4. It is the case of prosecution that accused No.1 used to come home in a drunken state and assault deceased. He was not providing basic amenities for sustenance of deceased and their children. The accused was frequently demanding deceased to give money to spend for his vices. The accused was not taking proper care of his children and their education. The deceased was shouldering the entire responsibility of the family. Even then, accused was not sparing her. He was frequently harassing and ill treating deceased. On 12.10.2009, deceased jumped into a pond near Eshwara temple in Kollegal and committed suicide.

5. The parents of deceased, namely, PW1 and PW2 are residents of Kollegal Taluk. Accused No.1 had set up a separate house after living in the house of accused 2 and 3 for a short period. PW7 and PW8 are the children of deceased and accused No.1. The evidence of PW7 and PW8 has direct bearing on proof of charges levelled against accused. The evidence on record does 5

not indicate that they had grudge or grievance against accused (their father). Above all, PW7 and PW8 had witnessed as to what was transpiring between accused and deceased. They have given the first account of happenings in their house.

6. PW7 – Kum. Sonu was aged about 8 years when she was examined before the court. PW7 is the daughter of deceased and accused No.1. PW7 has deposed that accused No.1, deceased, PW7 and PW8 were living in a rented house, set up by accused No.1. There used to be frequent quarrels between accused No.1 and deceased. Whenever their mother (deceased) used to demand accused to give money to bring household articles for sustenance, accused used to assault deceased. The accused was not providing food grains and other household articles for the sustenance of deceased and their children. Therefore, deceased and their children were taking food in the house of PW1 and PW2 (parents of deceased). The accused was taking 6

food in house of his parents. In that way accused No.1, deceased and their children had a common shelter, but separate messing, because, accused was not taking care to provide basic amenities to deceased and their children. The deceased had sewing machine. She was stitching clothes and earning for basic necessities. The deceased committed suicide by jumping into a pond near Eshwara Temple of Kollegala.

During cross-examination, PW7 has admitted that accused rarely used to take care of his children. The accused was paying negligible part of his income to deceased for maintenance and he was spending the rest of money for consuming alcohol. PW7 has denied that she was tutored by PW1 and PW2 to give false evidence against accused (her father).

PW7 was a girl of tender age. She had no reasons to falsely implicate her father. We also find from evidence of PW7 that parents of deceased (PW1 and 7

PW2) were people of humble resources and they were also struggling to make their both ends meet.

7. The evidence of PW8 – Santhosh Kumar (son of deceased and accused No.1) is more or less similar to evidence of PW7. PW8 has deposed that everyday accused used to come home in a drunken state and assault deceased. He was demanding deceased to pay money. The deceased, PW7 and PW8 were taking food in house of PW1 and PW2 (parents of deceased). The accused was not taking care of education of PW7 and PW8. During cross-examination of PW7 nothing has been elicited to disbelieve his evidence.

8. PW1 and PW2 are the parents of deceased. They have deposed about ill treatment meted out to deceased by accused. They have deposed that accused was not taking care of his wife and children. The accused used to come home in a drunken state and assault deceased. The accused was not providing food to deceased and 8

their children. They used to take food in house of PW1 and PW2. The deceased was also not taking care of basic needs of his children.

The accused was regularly consuming alcohol, come home late in the night and assault deceased. He was spending major part of his earning for drinking and a negligable part for maintenance of his wife and children. Therefore, it can safely be held that accused had subjected deceased to cruelty.

9. The next point for determination is whether accused No.1 abetted the commission of suicide by deceased.

10. The deceased had committed suicide on 12.10.2009, after a period of 11 years from the date of their marriage. Therefore, prosecution has to prove that accused No.1 had actually instigated or abetted the commission of suicide of deceased. The prosecution cannot take the aid of presumption available under 9

Section 113A of Evidence Act. The evidence of PW7 and PW8 (children of deceased and accused No.1) and PW1 and PW2 (parents of deceased) does not reveal that accused was harassing and ill treating deceased with an intention to instigate deceased to commit suicide. The law is fairly well settled that if offence under Section 498A is established, the Court cannot jump into a conclusion that accused had abetted the commission of suicide. The prosecution has to establish from evidence that accused had necessary mens rea to instigate or abet the deceased to commit suicide.

11. The evidence of PW1 and PW2 (parents of deceased) and PW7 and PW8 (children of deceased and accused No.1) does not reveal that accused had instigated or abetted deceased to commit suicide. The learned Trial Judge without adverting to basic ingredients of an offence punishable under Section 306 IPC has erroneously held accused No.1 guilty of offence punishable under Section 306 IPC. Therefore, the 10

impugned judgment as it relates to conviction of accused No.1 for an offence punishable under Section 306, cannot be sustained.

12. In the result, I pass the following: ORDER

The appeal is accepted in part.

The impugned judgment as it relates to conviction of accused No.1 for an offence punishable under Section 306 IPC is set aside. Accused No.1 is acquitted for an offence punishable under Section 306 IPC. The impugned judgment as it relates to conviction of accused No.1 for an offence punishable under Section 498A IPC and sentence imposed thereon are confirmed. The period of detention undergone by accused No.1 is given set off under Section 428 Cr.P.C. Sd/-

JUDGE

AHB