AI Structured Summary
Not yet generated for this judgment
Judgment
Mohammad Nawaz, J
This appeal is preferred against the Judgment and Order dated 18.01.2012 passed by the Court of Fast Track (Sessions) Judge, Bangalore, in SC No.613/2006, wherein the appellant/accused has been found guilty for the offence punishable under Section 498-A and 306 of IPC and sentenced as under:
(i) for the offence punishable under Section 498-A IPC, he is sentenced to undergo rigorous imprisonment for 02 years and to pay fine of Rs.5000/-, in default of payment of fine, to suffer rigorous imprisonment for 03 months.
(ii) for the offence punishable under Section 306 of IPC, he is sentenced to undergo rigorous imprisonment for 05 years and to pay fine of Rs.10,000/-, in default of payment of fine, to suffer rigorous imprisonment for 6 months.
Heard the learned counsel Smt. N.Padmavathi for the appellant and the learned High Court Government Pleader Smt. Sowmya R. for the respondent/State and perused the evidence and material on record including the impugned judgment passed by the trial Court.
Brief facts of the case:
The first informant, Sri K.R.Krishnamurthy is a resident of Teachers Colony, Banashankari II Stage, Bangalore. Deceased K.Kalaivani is his elder daughter. She was given in marriage to the appellant/accused about 12 years prior to the incident. Accused is none other than the daughter of first informant’s sister Savithri. The couple were blessed with 02 daughters, Pooja aged 10 years and Monisha aged 06 years, both deceased in this case. Since 7-8 years prior to the incident, accused started torturing his wife Kalaivani. He demanded money for the construction of a house in Dattathreyanagar. The first informant gave a sum of Rs.1,10,000/- by taking loan on the amount he had kept in the fixed deposit in Vijaya Leasing Corporation.
The accused used to pick up quarrel with his wife for petty reasons and used to come to the house late in the night. He was not regularly coming to the house and whenever the deceased asked him the reason, he used to quarrel and assault her. During her second pregnancy, accused left his wife in the house of her parents and even one year after the delivery, he did not visit her and brought her back. Therefore, she herself, along with her children came to the house of her husband, to live with him. However, she was not looked after properly and the torture continued. The accused forced her to get Rs.50,000/- from the first informant, for registration of the house. The first informant took loan by pledging the national savings Certificate and gave the amount to the accused. In the year 2002, accused once again demanded a sum of Rs.1,28,000/- for constructing one more floor and the said amount was also given to him.
The accused was staying on the first floor of the house. The ground floor was given on rent. He developed illicit relationship with the lady tenant who was residing in the ground floor and started ill-treating Kalaivani. Hence, she lodged a complaint at Girinagar Police Station on 31.12.2004. The accused was called to the police station and advised. Even thereafter, the accused started ill-treating his wife and therefore, the first informant met the friends of the accused and his colleagues requesting them to advise him. They conducted a panchayat and advised him and the accused promised to mend his behaviour. However, the accused continued to ill-treat Kalaivani. On 23.01.2005, accused picked up quarrel with Kalaivani and physically assaulted her and the first informant. In this regard, the first informant lodged a complaint with Girinagar Police.
The deceased used to inform the first informant over phone about the ill-treatment meted to her by the accused. On the date of incident, at about 5.15 a.m., deceased called her father/first informant and told him that she is fed up of her husband’s conduct and therefore, she has decided to end her life and she has already killed her two daughters. Further told that she has written a death note and she too will die and disconnected the phone. Immediately, the first informant along with his wife and son went to the house of his daughter and with the help of neighbours broke open the door, wherein he found his daughter hanging and his grand daughters also lying dead.
It is the case of prosecution that the accused was subjecting his wife Kalaivani to physical and mental cruelty and by his willful conduct, abetted her to commit suicide and due to the physical and mental torture meted to her and due to the abetment, she committed suicide after killing her two daughters.
The prosecution in all examined 19 witnesses and got marked Ex.P1 to P23 and MOs.1 to 7. The defence got examined 2 witnesses.
The learned Sessions Judge, after appreciating the oral and documentary evidence on record and particularly the evidence of PWs.1, 7 to 9 and 11, death note and the letters written by the deceased, came to the conclusion that it clearly lead to the only conclusion that the incident has occurred because of the extreme mental cruelty which was perpetuated from the point of marriage and lasted till the deceased committed suicide and there cannot be any iota of doubt that the extreme mental cruelty and torture compelled the deceased to put an end to her life. The learned Sessions Judge has observed that the accused was wholly responsible for creating all the circumstances, which led the deceased to take an extreme step of putting an end to her life.
It is vehemently contended by the learned counsel for the appellant that the entire allegations that the accused has demanded or received money from the first informant is false and there is absolutely no material placed by the prosecution, except the oral testimony, to show that the first informant has given any amount to the accused either by taking loan or by pledging the National Savings Certificate etc. She has contended that the accused has not ill-treated his wife or abetted her to commit suicide. Their marriage has taken place 12 years ago and only after the construction of the house and a lady tenant occupied the ground floor of the house, she started suspecting that there was an illicit relationship between her husband and the said tenant. She contends that it was only an illusion, as the deceased Kalaivani was suffering from Othello Syndrome and she was of suspicious nature and doubting the character of her husband.
The learned counsel for the appellant has further contended that the alleged death note recovered are planted and even otherwise not sent to the handwriting expert and therefore, on the interested testimony of prosecution witnesses alone the said death note or the letters alleged to have been written by the deceased Kalaivani cannot be relied upon. She contended that there is serious doubt with regard to the alleged death note as the witnesses have given different versions in respect of seizure of the death note-Ex.P3.
The learned counsel has further contended that the trial Court has passed conviction on the interested testimony of the prosecution witnesses and at the same time failed to appreciate the evidence led by the defence. Relying on a decision of the Hon’ble Apex Court in the case of K.V.Prakash Babu v. State of Karnataka (Crl.A.Nos.1138-1139/2016 DD 22.11.2016), she has contended that solely because the husband is involved in an extra marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract the ingredients of Section 306 of IPC. Further, relying on a decision of the Hon’ble Apex Court in Kamalakar v. State of Karnataka (Crl.A.No.1485/2011 DD 12.10.2023), she has contended that to attract the ingredients of abetment so as to convict an accused under Section 306 of IPC, there should be intention to provoke, insight or encourage the doing of an act, which is totally missing in this case.
The learned counsel has also contended that the ingredients of Sections 498A and 306 of IPC are not proved and therefore, the trial Court has committed a grave error in convicting the accused for the said charges framed against him. She has therefore sought to allow the appeal and acquit the accused.
Per contra, the learned HCGP has contended that the prosecution has been successful in establishing the guilt of the accused for the charged offences, beyond all reasonable doubts. The witnesses have categorically stated the ill-treatment given by the accused to his wife Kalaivani and due to the continuous torture and his conduct, she has committed suicide after killing her two daughters. She has contended that the testimony of the witnesses cannot be brushed aside labeling them as interested witnesses and further, the defence has not led any evidence to show that the deceased was suffering from Othello Syndrome disease and no documents are placed to show that she was treated for the said disease any time prior to her death.
The learned HCGP has contended that the appellant has not only coerced the deceased to meet his unlawful demands but also developed illicit relationship with another woman which has led to extreme mental torture to her, leaving no option but to take the extreme step and therefore, the ingredients of Section 498A and Section 306 of IPC are clearly made out. In support of her contention, she has relied on the decision of the Hon’ble Apex Court in (i) Siddaling v. State, through Kalagi Police Station reported in 2018(9) SCC 621, (ii) Milind Bhagwanrao Godse v. State of Maharashtra and another reported in 2009 (3) SCC 699.
The prosecution in all examined 19 witnesses. However, to prove that the appellant/accused was subjecting his wife Kalaivani to physical and mental cruelty and abetted her to commit suicide, mainly relied on the evidence of PW1-father of deceased Kalaivani, PWs.7 and 11, her brother and sister and PWs.5, 6, 8 and 9, the independent witnesses.
PW10 is the photographer and PWs.12, 14 and 15 are the doctors who conducted the post mortem examination and PW13 is a witness to the inquest mahazar. PW16 is the PSI, who registered the case. PW19 is the Investigating Officer who laid the charge sheet and PWs.2 to 4, 17 and 18 are the police officials who assisted in the investigation.
PW12 conducted post mortem examination on the dead body of deceased Kum. Monisha. The post mortem report is Ex.P16. The cause of death is due to “Comato-Asphyxia” as a result of combined effect of head injury and smothering.
PW14 is the Doctor, who conducted post mortem examination on the dead body of Kalaivani. The post mortem report is marked as Ex.P17. As per the said report, the cause of death is due to asphyxia as a result of hanging.
PW15 is the Doctor, who conducted post mortem examination on the dead body of Kum.Pooja. Post mortem report is marked as Ex.P18. The cause of death is due to asphyxia as a result of ligature strangulation.
The cause of death of the three deceased is not seriously disputed. According to prosecution, due to physical and mental cruelty meted out to Kalaivani by the accused and due to his abetment, she killed both her daughters and committed suicide by hanging herself in her matrimonial home.
The specific defence taken by the accused is that the deceased was suffering from psychotic disorder such as Othello Syndrome and she was of suspicious nature and doubting the character of her husband and therefore, she has committed suicide after killing her two daughters. It is contended by the learned counsel for the appellant that deceased Kalaivani was suspecting that the accused was having an extra marital relationship and that itself cannot be considered as mental cruelty which would attract the definition of cruelty or it would fulfill the ingredients of abetment.
At the outset, the defence has not established that the deceased Kalaivani was suffering from any such disease i.e., psychotic disorder. There is no medical document produced to that effect nor there is any evidence to show that prior to the incident she had taken treatment for the said disease. The defence has only tried to contend that the deceased Kalaivani was suffering from such disease, as it is alleged that the accused was having an illicit relationship with a tenant staying in the first floor of the building.
The prosecution witnesses namely PWs.1, 7, 8, 9 and 11 have deposed that the deceased had developed illicit relationship with a lady tenant who had occupied the ground floor of the building. All the said witnesses have consistently stated that the accused had developed illicit relationship and in this connection he was picking up quarrel with the deceased and assaulting her etc. PW1, in his cross-examination has admitted that his daughter raised suspicion that her husband was having illicit relationship with the tenant. The witnesses have stated that deceased Kalaivani was informing them about the illicit relationship of her husband with the said tenant. However, the prosecution has not cited the said tenant as a witness. It is not forthcoming from the deposition of the witnesses as to who was that tenant with whom the accused was having an illicit relationship.
According to prosecution, on three occasions the accused demanded money from the parents of deceased Kalaivani. In Ex.P2, it is stated that initially, about eight years prior, for constructing a house in Dattathreyanagar, the accused sought for financial help and therefore, a sum of Rs.1,10,000/- was paid by PW1 after taking loan on the fixed deposit kept in one Vijaya Leasing Corporation. Thereafter, for registering the house, he demanded a sum of Rs.50,000/- and therefore, PW1 mortgaged the National Savings Certificate in the Bank and took loan and paid the said amount to the accused. Again, in the year 2002, he demanded money for constructing the first floor and therefore, PW1 gave him a sum of Rs.1,28,000/-.
It is vehemently contended by the learned counsel for the appellant that except the oral testimony, no documentary evidence has been adduced to show that the above amount was paid to the accused.
The prosecution has not collected any documents to show that PW1 had taken loan on the fixed deposit kept in one Vijaya Leasing Corporation or that he was having National Savings Certificate and mortgaged the said National Savings Certificate in the Bank and obtained loan etc. When the source of amount which was paid to the accused is specifically stated, a duty is cast upon the prosecution to collect the material in proof of the same.
PW1 has admitted in the cross-examination that in the year 1997 accused purchased a site and registered it in the year 2002 in the name of his wife. He has stated that he is not aware as to when he paid Rs.50,000/- for registration. He has admitted that he has not furnished any document to show that he has obtained loan or mortgaged National Savings Certificates and took loan of Rs.50,000/- from the Bank. Similarly, admitted that he has not furnished any document to show that he has taken loan from Vijaya Leasing Corporation etc.
Even though PWs.7 and 11 namely the brother and sister of the deceased Kalaivani have also stated that the accused demanded money from their father and the amount was paid to the accused taking loan etc., except the oral testimony, there is no other material to show that the said amount of Rs.1,10,000/-, Rs.50,000/- and Rs.1,28,000/- was paid to accused by PW1.
It is the case of prosecution that, the deceased before committing suicide, at about 5.15 am called her father-PW1 over phone stating that she is fed up with the cruelty meted to her by the accused and therefore, she has decided to commit suicide and she has already killed her two daughters and she is also ending her life by leaving a death note. The death note is marked as Ex.P3. PW19-IO has deposed that he seized it during inquest panchanama. In Ex.P3, the deceased has held the accused responsible for her to commit suicide. Admittedly, the death note has not been sent to handwriting expert. The seizure of death note is under a doubtful circumstance.
As per the inquest panchanama/Ex.P.22, the death note was found on the Fridge, in the hall of the house. The Investigation Officer-PW19 has deposed that at the time of conducting inquest panchanama he seized the suicide note. In the cross-examination he has stated that the death note was on the table and he has not prepared a separate mahazar while seizing the death note. Insofar as the letters alleged to have been written by the deceased which are marked as Exs.P-13 to 15 and the diary Ex.P12, he has stated that the same was not produced before him by the first informant. He has admitted that he has not sent Ex.P3 to the handwriting expert and not made any effort to confirm that Ex.P3 was in the handwriting of the deceased.32. Ex.P3 and Exs.P12 to 15 are marked through PW1. He has deposed that the death note-Ex.P3 was on the Fridge and it was seized by the police inspector. He has stated that the same was written by his deceased daughter and it is in her handwriting. He has admitted in the cross-examination that on the death note there was no date or signature of his daughter. According to him, the diary and the letters were in the kitchen and on the bed and they found it after 15 days and when they tried to handover the same to the police, the police did not accept it.
According to PW5, Ex.P3 was lying near the dead body of Kalaivani. PW7, brother of the deceased has stated that the death note was on the sofa, whereas PW8 has stated that the letter was on the floor.
The witnesses have given different versions regarding the place from where Ex.P3 was seized. If they have really seen Ex.P3 at the place of incident, there could not have been different versions about the place from where it was seized.
The learned counsel for the appellant has vehemently contended that Ex.P3 was planted by PW1 before the police arrived to the spot. She has drawn the attention of the Court to the admission made by PW19-I.O. wherein he has stated that the parents of the deceased Kalaivani had broke open the lock and entered the house and they were already present inside the house before the police arrived. Further, even though the police have conducted spot and inquest panchanama, except Ex.P3 they did not find the letters or diary in the house. Whereas, it is the case of PW1 that they found a diary and letters written by the deceased in the kitchen and on the bed after 15 days of the incident, which is difficult to believe. Admittedly, Ex.P3 has not been sent to the handwriting expert with the admitted writings of deceased Kalaivani to confirm that it was written by her. A reasonable doubt would arise regarding seizure of Ex.P3 and its contents.
The learned High Court Government Pleader has relied on a decision in the case of ‘Alamgir v. State’ (supra) to contend that there is no rule of law that without corroboration, the opinion evidence of handwriting expert cannot be accepted. However, the said judgment is not applicable to the case on hand, as admittedly there is no evidence of the handwriting expert in the present case.
The defence has examined two witnesses as DW1 and DW2, trying to establish that the deceased was suspecting her husband. DW1 is the colleague of the accused working in the same factory. He has deposed that the accused was absent for work for about a month and when enquired, he told that his wife is suspecting that he is having an illicit relationship with some other lady. He has further stated that they went to the house of the accused and advised his wife.
DW2 is the sister of the accused. She was examined by the defence to show that the deceased was of suspicious nature and further that a sum of Rs.5 lakhs was given by her to the accused. The learned counsel for the appellant has contended that, from the evidence of DWs.1 and 2 the defence has established that the deceased was suspecting her husband and further it was his sister who gave him money, out of which he purchased a site at Hosakere village.
In ‘Kamalakar vs. State of Karnataka’ (supra), the Hon’ble Apex Court has held that to charge some one under Section 306 of IPC, which penalizes abetment of commission of suicide, the prosecution must prove that the accused played a role in the suicide. Specifically, his action must align with one of the three criteria detailed in Section 107 IPC. This means, the accused either encouraged the individuals to take life, conspired with others to ensure the person committed suicide, or acted in a way or failed to act, which directly resulted in the person’s suicide. In the said case, the decision of ‘M.Mohan v. State’ reported in (2011) 3 SCC 626 was referred, wherein it is held that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. There should be intention to provoke, insight or encourage the doing of an act. Each persons suicidability pattern is different from the others. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Further held that it is impossible to lay down a straight jacket formula in dealing with such cases.
In ‘Siddalingh v. State’ (supra) relied on by the learned High Court Government Pleader, the Hon’ble Apex Court while confirming the conviction under Section 498A and 306 of IPC passed against the appellant, observed that the appellants illicit relationship with another woman would have definitely created the psychological imbalance to the deceased which led her to take the extreme step of committing suicide. Therefore, it cannot be said that the appellant’s act of having illicit relationship with another woman would not have affected to negate the ingredients of Section 306 IPC.
In the above case, it was established that the accused therein was having an illicit relationship with one woman and in the panchayat, the appellant agreed that he will sever the said relationship, however, he continued his illicit relationship with the said woman. In that context, the Hon’ble Apex Court has held that it would have definitely created a psychological imbalance which led the deceased to take the extreme step of committing suicide.
The learned High Court Government Pleader has relied on the decision of the Hon’ble Apex Court in ‘Laxman Ram Mane’ (supra), wherein it is held that illicit relationship of a married man with another woman would amount to cruelty.
In ‘K.V.Prakash Babu v. State of Karnataka’ (supra), the Hon’ble Apex Court has observed that solely because the husband is involved in an extra marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract the ingredients of Section 306 IPC.
In the case on hand, except the oral testimony of the prosecution witnesses and the allegations that the accused was having an illicit relationship with a lady tenant residing in the first floor, there is no sufficient material to show as to who was the said tenant with whom he was having the alleged intimacy. At the same time, the defence has also failed to establish by cogent evidence, to show that deceased Kalaivani was of suspicious character, as she was suffering from Othello syndrome disease.
On an overall and careful appreciation of the entire evidence and materials on record and the facts and circumstances of the case, I am of the considered view that the prosecution has failed to establish that the accused has instigated or aided the commission of suicide by the deceased, as the ingredients of Section 107 IPC are not fulfilled. It is well established that the person who is said to have abetted the commission of suicide must have played an act of instigation by playing an active role.
Deceased Kalaivani has committed suicide by hanging herself in the matrimonial home of the accused after killing her two children. Section 498A of IPC penalizes the husband or his relatives who subject a woman to cruelty, such as willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury etc., or harassment to the woman with a view to coerce her or any person related to her to meet unlawful demand etc.
In the instant case, the witnesses have stated that the accused demanded money from the first informant to construct a house etc., but this Court has already held that the prosecution has failed to place cogent material to show that the said money was given to the accused either by surrendering NSC certificates or by taking loan. However, what is relevant to be seen is that there is consistent evidence with regard to the ill-treatment given by the accused to his wife-Kalaivani.
In Ex.P2, it is stated that the accused quarreled with his wife and beaten her and when the first informant visited his daughter and questioned the accused, he was also assaulted by the accused and therefore, he lodged a complaint against the accused at Girinagar Police Station. The prosecution has marked Ex.P1, the complaint lodged by PW1 requesting the police to advise the accused not to trouble him, his daughter and the children. Ex.P20 is another complaint given by the wife of the accused, wherein she has complained that the accused was coming home drunk and she has been severely beaten by him etc. Further, in Ex.P2, it is stated that on the date of incident at about 5.10 a.m., deceased Kalaivani called the first informant on his mobile phone stating that she is fed up with the ill-treatment meted to her by her husband and therefore, she has decided to end her life etc.
PW1 has deposed that the accused used to come home drunk and pick up quarrel and assault his daughter and this was being informed to him by his daughter. Even though he has admitted that his daughter was suspecting that the accused had an illicit relationship, that itself is not the sole reason, as contended by the learned counsel for the appellant, which has led Kalavani to commit suicide after killing her two children. PW6, an independent witness has also deposed about the deceased complaining to him about the cruelty meted by the accused. Both PWs.7 and 11, brother and sister of the deceased have stated that the accused used to beat their sister and ill-treat her and not allowing her to live peacefully. Merely because the said witnesses are the close relatives of the deceased, is not sufficient to disbelieve their evidence. There is ample evidence to show that the accused was assaulting and ill-treating the deceased and as per PWs.9 and 11, when the deceased had questioned the accused about the illicit relationship with another woman she was being abused and beaten by him. Hence, even though the ingredients of abetment are not made out from the factual matrix of the case, this Court finds that there is sufficient material placed by the prosecution to show that the deceased Kalaivani was being subjected to cruelty by the accused by his willful conduct, which has driven her to commit suicide after killing her two children. The conviction and sentence passed by the trial Court for the offence punishable under Section 498A of IPC is therefore, fully justified.
For the forgoing reasons, I proceed to pass the following:
ORDER
i. The appeal is partly allowed.
ii. The Judgment and Order dated 18/21.01.2012 passed by the Court of Fast Track (Sessions) Judge, Bengaluru in SC No.613/2006 insofar as convicting and sentencing the appellant/accused for the offence punishable under Section 306 of IPC is hereby set aside.
iii. The conviction and sentence passed against the appellant/accused for the offence punishable under Section 498A of IPC is confirmed.
iv. The appellant shall surrender before the trial Court to undergo the remaining part of the sentence imposed against him for the offence punishable under Section 498A of IPC.
v. The order shall be communicated to the trial Court.