Basavana Gowda vs State

B.V. Pinto, J.—This appeal is filed challenging the judgment dated 8.12.2003 passed by Addl. Sessions Judge and Fast Track Court-II, Davanagere in S.C. No. 132/01 convicting the Appellant for the offence u/s 498A IPC and sentencing him to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 10,000/- and in default of payment of line to undergo, further simple imprisonment for a period of one year.

The prosecution was launched against six accused persons by Arasikere Police. It is the case of the prosecution that A-1 being husband, A-5 and A-6 being in-laws of the deceased Yeshodamma and A-2 and A-3 being brothers of A-1 and A-4 being the 2nd wife of A-1, all the accused had subjected the deceased Yeshodamma to cruelty and harassment after her marriage with A-1 on 16.2.2001 at Sasivehalli village of Davanagere district and thereby they are alleged to have committed an offence u/s 498-A IPC.

It is further alleged against the accused that on 16.2.2001, the accused have formed themselves into an unlawful assembly with the common object of causing death of the deceased Yeshodamma and thereafter, they have assaulted the deceased with hands and legs and caused her death and thereafter, thrown her deadbody into the well and thereby they are alleged to have committed an offence u/s 147, 302 r/w 149 IPC.

The prosecution in order to prove the case has examined in all 25 witnesses and has got marked Ex.P-1 to P.17 and have produced MOs-1 to 5. The defence of the accused was one of total denial. They had marked Ex.D-1 being the portion of the statement of PW-3 before the Police. After hearing the prosecution and the defence, the learned Sessions Judge has found the accused No. 1 guilty by holding that the prosecution is successful in bringing home the guilt of A-1 for the offence u/s 498A IPC and further held that the prosecution has not proved the case against A-2 to A-6. The convicted accused has filed this appeal.

Heard Sri S.S. Guttal, learned Counsel for the Appellant and Sri Vijaya kumar Majage, learned HCGP for the State.

The learned Counsel for the Appellant submits that there is absolutely no material to hold that the accused has subjected the deceased to harassment and ill treatment. The evidence of the witnesses is hearsay and there is no material to corroborate the evidence of PWs.1 and 7 who are parents of the deceased. It is in the evidence of PWs.1 and 7 that the deceased was having three female children and that the deceased herself was present at the second marriage of A-1 with A-4 and that for the purpose of begetting a male child in the family, deceased herself had arranged the marriage of the Appellant. He submits that the said conduct of the accused cannot be considered as wilful conduct since it is the deceased herself who is the cause of the second marriage. A part from the said allegations, there are no allegations against the Appellant since A-2 to A-6 have been acquitted against whom similar allegations are made and since the State has not filed any appeal against the said order of acquittal of A-2 to A-6, the same yardstick may be applied and the Appellant, may be acquitted of the offence levelled against him.

The learned HCGP on the other hand submits that the materials available against the Appellant is different from the material evidence adduced on behalf of A-2 to A-6. He submits that A-1 the Appellant had married A-4 during the lifetime of the deceased and therefore, A-1 is liable to be convicted for the offence causing mental harassment to the deceased. The conduct of the Appellant amounts to wilful conduct within the meaning of Section 498-A IPC and therefore, he submits that the order of the Trial Court convicting the Appellant for the said offence does not call for interference. Hence, he submits that the appeal may be dismissed.

The prosecution in this case commenced with the filing of complaint by Pampanna, father of the deceased with Arasikere Police, Davangere district on 17.2.2001. It is stated in the complaint that his daughter Yeshodamma was married to Basavanagowda about 6 years prior to the date of the complaint and the deceased had begotten three female children aged 5 years, 3 years and 2 years respectively. Since all children are female, the Appellant/accused No. 1 had got married second time with Renukamma A-4 and since his daughter did not bear male child, A-1 used to illtreat his daughter and on 16.2.01, the accused had put his daughter into the well. The said well is 6 feet in width and was made of stones but the same has not been cemented. The said well contains water to a depth of 5 feet Hence, he states that the accused are responsible for the death of his daughter. It is mentioned in the complaint, that the accused have beaten his daughter and thereafter, dropped her into the well and thus they have committed murder of the deceased only because his daughter has delivered female children. It is further stated in the complaint that his daughter was informing him while she was alive that she was given ill-treatment because she has delivered female children. On the basis of the said complaint the case in Crime No. 20/01 for the offence u/s 498A, 302 r/w 34 IPC has been registered and the Police commenced investigation. On conclusion of the investigation, the charge sheet came to be filed against six persons including the Appellant.

PW-1 Pampanna is the complainant. He has reiterated his version in complaint before the court. He has further stated that the accused were beating and assaulting his daughter and were not giving proper food to eat. His daughter way being beaten saying that she does not know how to cook. He had been to his daughter's house and advised the accused 23 times not to assault his daughter. He came to know through somebody that his daughter has been put into well and he went to his daughter's house. The well in which his daughter's body was found belonged to A-6 Channappa. He has stated that all the accused are responsible for the death of his daughter. In the cross-examination, it is suggested that his daughter only instigated for the second marriage of A-1 in order that the family can have a male child which suggestion has been denied by PW-1. Certain omissions are elicited from the evidence of PW-1.

PW-2 Shivakumara has stated that he knows the accused and the deceased and he came to know the death of the deceased. The evidence of PW-3 Nagappa is also to the same effect. PW4 and PW.s 9 to 13 have turned hostile to the case of the prosecution.

PW-5 states that PW-1 was informing him that his daughter was being treated badly in her husband's house. However, his evidence is in the nature of hearsay. PW-6 also has come to know about the ill-treatment and about the second marriage of A-1, through PW-1, the father of the deceased.

PW-7 Hampamma is the mother of the deceased. She has stated that Al had married for the second time with Renukamma A-4. In the cross examination, she had admitted that her daughter was present when A-1 married for the second time. PW-8 is the brother of the deceased. His evidence is similar to that of PWs.1 and 7.

PW-14 is the witness for Ex.P-7 which is inquest proceedings. PW-15 Moogappa has signed Ex.P-8 which is the mahazar under which personal belongings of the deceased were seized. He has identified MO-1 Karimani, MO-2 saree and MOs.3 to 5 personal belongings of the deceased. PW-16 is a signatory to mahazar Ex.P-3 conducted by the police in the house of A-1. PW-17 is the Asst. Executive Engineer who has drawn sketch of scene of occurrence as per Ex.P10, PW-18 is the signatory to Ex.P-7 inquest proceedings. PW 19 is Head Constable who has carried FIR to the residence of the Magistrate. PW-20 has carried the deadbody from scene of occurrence to the Govt, hospital for postmortem examination after inquest. PW-21 Sumithradevi is the doctor who has conducted post mortem examination and has opined that the death is due to cardio respiratory arrest due to shock and hemorrhage as a result of laceration of lung and spleen as per Ex.P-14 the post mortem certificate. PW-22 is the Village Accountant who has stated that the land where the well is situated belonged to Hanumanthappa son of Channappa. PW-23 is the Tahsildar who has conducted the inquest proceedings on the deadbody of the deceased as per Ex.P-7. PW-24 is the PSI who has registered the case in Crime No. 20/01 on the basis of the complaint given by PW-1. PW-25 is the investigating officer who has conducted investigation and recorded the statement of witnesses, arrested the accused and collected the documents such as wound certificate etc. and ultimately filed charge sheet. From the above evidence of the prosecution witnesses, the learned Sessions Judge has found the Appellant guilty while acquitting A-2 to A 6 of the offence charged against them.

On a careful re-appreciation of the evidence on record it is seen that there are oral allegations against the accused for having ill-treated and harassed the deceased. However, it is seen that the accused and the deceased had lead matrimonial life for about 6 years and that they have begotten 3 children out of the said wedlock. From the evidence of PW-7 the mother, it is clear that A-1 was married to A-4 in the presence of the deceased Yeshodamma and the reason for such marriage was that the deceased was not having any male children and therefore, in order to have a male child in the family, A-1 has married to A-4. It is in the evidence of PWs.1 and 7 that the said marriage of A-1 with A-4 took place 3 years prior to the date of the incident and until then, the deceased and A-4 were living in the same house. It is further in the evidence that A-4 has delivered a male child. For long three years neither PW-1 nor the deceased have come forward either to give complaint to the Police or to the village elders regarding second marriage of A-1. Apart from the said aspect of second marriage, there are no, other allegations against A-2 to A-6 as well as A-1. A-2 to A-6 have been acquitted by the Trial Court and the State has not come up with appeal challenging the said acquittal order. There are no specific overt acts against A-1 other than marriage with A-4 for which the deceased appears to be a consenting party.

I have gone through the judgment of the Trial Court. The reasoning given by the learned Sessions Judge for convicting A-1 are not convincing and they are not based on material on record. Under the circumstances, I am of the opinion that the benefit of doubt extended to A2 to A6 is also applicable to A-1 the Appellant herein. In that view of the matter, I hold that the prosecution has not proved the offence against A-1 beyond reasonable doubt and he is entitled to an order of acquittal.

Accordingly, the appeal is allowed. The order of conviction is set aside. The accused is acquitted of the offence u/s 498A IPC charged against him. The bail bonds, if any, executed by the Appellant shall be cancelled. The fine amount, if any, deposited by the Appellant shall be refunded to him.