Kashappa - Appellant @HASH State

Budihal R.B., J. - The judgment dated 25.01.2011 passed by the District and Sessions Judge at Yadgiri in S.C.No. 15 of 2010 is called in question in this appeal. By the said judgment and order of conviction, the Trial Court convicted the appellant-accused for the offences punishable under Section 498-A and Section 307 of IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 10,000/-and in default to pay a fine, he shall further undergo rigorous imprisonment six more months for the offence under Section 498-A of IPC and he was also sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.25,000/- and in default to pay a fine, he shall further undergo rigorous imprisonment for two more years for the offence punishable under Section 307 of IPC. The judgment and order of conviction passed by the Trial Court has been challenged by the appellant-accused in this appeal challenging the legality and correctness of the judgment and order on the grounds as mentioned in the appeal memorandum.

The brief facts of the prosecution case as per the prosecution story, the brother of the injured firstly filed the complaint dated 30.01.2010 wherein he has stated he is staying in the address mentioned in the complaint along with his family members. His parents are having three daughters, all are married and he is the eldest one in the family and the youngest son to the parents is one Shankar. His sister Anjamma was given in marriage to this appellant about three years back and she was leading happy marital life in her husband’s house. Two times there was failure to his sister to begotten children because of the stomach problem. Whenever Anjamma used to come to the parental place, she was telling that she did not beget the children and she is disappointed and she was also stating that it is better to die. Himself and his mother used to console his sister and sending back her to her husband’s place. On 29.01.2010 at about 3:10 p.m. the appellant phoned to the complainant and informed and called him urgently to come to his place. Immediately himself and his younger brother came to Yeleri and Balappa the brother of the accused herein informed them that his sister has been taken to Yadgiri hospital. Himself and his brother came to Yadgiri in the evening and went to the Government hospital and saw that his sister was getting treatment and she was unconscious. When they have enquired with the appellant herein, who told that when he was taking meals in his house, his wife hanged herself in one room inside the kitchen and when she screamed, immediately he attended and cut the rope. Then, immediately he put her into an auto rickshaw and took her to Yadgir hospital. Hence, he has mentioned in his complaint that, as his sister was not begotten children she was disappointed in her life and took the decision to commit suicide by hanging. It is also mentioned in the said complaint that he is not having suspicion against anybody about the incident.

On the basis of the said complaint of Sharanappa the brother of the injured, case was registered in Gurumitkal police station Crime No. 8 of 2010 for the offence under Section 309 of IPC as against Anjamma.

On 18.03.2010 there was another complaint as per Ex.P3. This complaint is lodged by Anjamma stating that her native place is Nandepalli village. She is the third daughter to her parents. She is having the brother Sharanappa and another brother Shankrappa, sister Savitramma. Three years back she was given in marriage to one Kashappa i.e. the appellant herein of Yeleri village and two times there was abortion to her and because of abortion as she has not begotten the children and as in the marriage of her sister Shvitramma more dowry amount was given to Savitramma her husband was telling her that she will not begotten the children and insisting her to bring the amount from her parental house and everyday he used to quarrel with her and he was assaulting her. He was giving physical and mental ill-treatment. Whenever she used to come to her parental place Nandepalli she was telling before the family members. For which the family members used to console her that on one or the other day she will begotten children everything will be alright and sending her back to her husband’s house. It is further mentioned in the complaint that on 30.01.2010 at about 3:00 p.m. when she was in the house, her husband abused her in filthy language stating that she is not begotten the children and he will commit her murder stating so he picked up quarrel with her, he fisted her and took her to one room in the kitchen portion and he put her hairs into her mouth to prevent her from screaming and he put the rope to the ceiling and then he strangulated her, then she become unconscious and three days thereafter when she was in Yenagonda hospital at Andhra Pradesh she gained conscious and she has enquired, then Shranappa her brother-in-law informed why she is brought to the hospital. She further mentioned that as she did not begotten the children and as she did not brought the money from her parental place, her husband gave her ill-treatment both physical and mental and in order to commit her murder he assaulted her, put her hairs into the mouth and strangulated her. Hence, legal action may be taken against her husband. As she was getting the treatment in the hospital she came to the police station and gave the complaint.

On the basis of the said complaint case was registered in Gurumitkal police station Crime No. 45 of 2010 for the offences punishable under Sections 498-A and 307 of IPC against the appellant-accused herein.

After completing the investigation, Investigating Officer filed the charge-sheet against the appellant for the offences punishable under Sections 498-A and 307 of IPC.

In order to prove its case, the prosecution in all examined seven witnesses and produced five documents and got marked one material object MO. 1. On behalf of the appellant-accused no witnesses examined nor any documents were produced in the case.

After evaluating the entire materials placed on record, the Trial Court ultimately held the appellant - accused guilty for both the offences. Accordingly convicted him and imposed the sentence, which I have already mentioned above.

Being aggrieved by the judgment and order of conviction passed by the Trial Court, the appellant-accused come up in appeal before this Court challenging the legality and correctness of the judgment and order of conviction of the Trial Court on the grounds mentioned in the appeal memorandum.

I have heard the arguments of the learned counsel appearing for the appellant-accused and also the learned Government Pleader for the respondent - State.

The counsel for the appellant during the course of argument made the submission that in this case first complaint is by the very brother wherein he has mentioned that his sister was not able to begotten the children and two times there was abortion she was frustrated, disappointed and took the decision to commit suicide. On the basis of the same, case was registered against her in Gurumitkal police station for the offence under Section 309 of IPC. The learned counsel submitted that, in the said complaint absolutely there is no allegations made as against the present appellant herein that, he used to give ill-treatment and harassment to his sister. He also made the submission that in the subsequent complaint Ex.P3 filed by Anjamma herself two sets of allegations are made. It is after thought and after deliberation with the family members so also after the delay of 68 days after the alleged incident. For which there is no proper plausible explanation from the prosecution side. The learned counsel further made the submission that even looking to the oral evidence of the parties also there is no cogent and consistent material placed by the prosecution so as to accept the case of the prosecution that there was ill-treatment and harassment for the sake of the amount she has to bring from her parental house and also there is an attempt to commit murder by the appellant husband. The counsel also made the submission that material placed on record clearly goes to show that the appellant accused is totally innocent and he is not at all committed said offences. The counsel submitted that even the wound certificate issued by the doctor and the history mentioned in the said certificate also goes to show that it is the husband-appellant herein who immediately shifted his wife to the hospital. Hence, learned counsel submitted that if really he intended to commit murder of his wife, then he was not excepted to shift her to the hospital. Hence, the counsel submitted that all these important aspects were not at all considered by the Trial Court and the Trial Court wrongly come to the conclusion in convicting the appellant-accused. Hence, he submitted that the judgment and order of conviction by the Trial Court is patently illegal and it is unsustainable in law. It is also his contention that as the case was registered against complainant PW.2 Anjamma for the offence under Section 309 of IPC for making an attempt to commit suicide in order to overcome the same, this false case has been booked against the appellant-accused. Hence, submitted to allow the appeal, set aside the judgment and order of conviction passed by the Trial Court.

Per contra, learned Government Pleader during the course of his argument made the submission that the judgment and order of conviction passed by the Trial Court is in accordance with the materials placed on record. He also made the submission that medical evidence, the medical certificate and also the doctor evidence in this case clearly goes to show that it is not an attempt by Anjamma herself for hanging, but it is an act of strangulation by the appellant. He draw the attention of this Court to the evidence of the doctor during the course of cross-examination though it was suggested that when a person may attempt hang herself or himself such type of ligature marks were found but the doctor said No. Hence, learned Government Pleader made the submission that it is sufficient to show that Anjamma has not made an attempt by hanging herself and it is because of strangulation by the appellant accused. Regarding the delay learned Government Pleader made the submission that she was unconscious and getting treatment in the hospital and after she regained conscious, she filed a complaint as per Ex.P3. He submitted that she is illiterate and rustic villager. Therefore, there may be delay in lodging the complaint. It is also his contention that the brother Sharanappa lodged the first complaint as per the say made by the appellant herein and also the other relatives and he was not knowing what exactly happened in the case. Hence, he submitted that all these aspects were properly appreciated by the Trial Court. No illegality has been committed by the Trial Court. There are no grounds to interfere with the judgment and order of conviction of the Trial Court and hence, he submitted to dismiss the appeal.

I have perused the grounds urged in the appeal memorandum, oral evidence of the parties, documents produced in the case and also perused the judgment and order passed by the Trial Court so also considered the submissions made by both counsels at the Bar. The material goes to show and as it is stated by both the accused first complaint is by the brother of Anjamma. Perusing the first complaint there are no allegations as against the appellant herein and it is mentioned in the said complaint that as his sister was disappointed in her life as she did not begotten the children she committed suicide and there is no suspicion against anybody in that regard. Subsequently the wife of the present appellant herself filed the complaint it was on 18.03.2010 after lapse of 68 days of the alleged incident. Regarding the delay of this 68 days there is no proper explanation forthcoming from the prosecution side. Looking to the evidence of PW.2, Anjamma, she deposed in her evidence that she regained consciousness three days after the incident and at that time she was in Yenagonda hospital at Andhra Pradesh. When she regained consciousness, her parents and other relatives were with her and elder brother Sharanappa was also there. She narrated what has happened. But she deposed that the police have not at all enquired with her. Again she deposing that she has stated about the incident before the Gurumitakal police. She further deposed that as she did not begotten the children, accused did the act as he wanted to marry another girl after committing her murder. She has identified the rope MO.1 before the Court. In her oral evidence she has also deposed that it was on Friday at about 3:00 p.m. when she was in the house, told her husband that she wanted to go to the parental place. Husband told her not to go and picked up quarrel with her, he assaulted her throughout the body then he put her hairs into mouth and thereafter wards he took the rope tide to her neck tightly and she lost consciousness and she does not know what has happened thereafter. During the course of cross-examination she deposed that she has not stated before the police that in the marriage of her sister her parents paid Rs.20,000/- and 1� tolas of gold as dowry. She denied the suggestion that as there was abortion always she used to have the stomach pain. She has also denied the suggestion that the accused took her to the doctors at Bangalore and other places for getting the treatment. She denied the suggestion that because of the stomach pain, she made an attempt to commit suicide 2-3 times earlier to this incident and denied further suggestion that because of the stomach pain, she made an attempt to commit suicide. She has also denied the suggestion that in order to escape from the case registered against her, she lodged false complaint against her husband. She denied the further suggestion that she is giving false evidence that her husband used to assault her as she did not begotten the children.

PW. 1 doctor deposed in the evidence that on 29.01.2010 at about 5:30 p.m. one Anjamma aged 18 years resident of Yeleri village was brought to the hospital by one Kashappa and Sharanappa with a history of attempt of hanging. Patient was unconscious, gasping and convulsions present. The Doctor has also mentioned about injuries at S1.No.1 regarding the ligature mark and its measurement, colour and everything. He further deposed that injury No. 1 is simple in nature and caused due to constricting force applied around the neck such as rope and issued the injury certificate as per Ex.P-1. Doctor also mentioned the said injuries around the neck can be caused if strangulated with a rope around neck. The Doctor after seeing MO-1 rope deposed that injuries could be caused with a rope shown. In the cross-examination, Doctor deposed and admitted the suggestion that in such case they immediately inform the police and they informed the police in this case also. He has further deposed that the police in pursuance of his information visited the hospital and the patient. Police met him and made the enquiry. Doctor admitted the suggestion as true that the said Kashappa and Shamappa informed him that the said patient has tried to commit suicide by herself. The injury found on the said patient is not possible by hanging herself. Doctor also denied the suggestion that the ligature mark found on the patient is not possible if strangulated by a third person.

PW-3 Shamappa who is the brother of Anjamma deposed in his evidence that about four years back, marriage of Anjamma was performed. Two times there was a abortion and up to five months she was treated properly. There afterwards whenever she used to go to their house she used to tell that accused was giving ill-treatment and assaulting her as she did not begot children and she has not brought the dowry amount. He further deposed that about 7-8 months back on Friday at about 3.45 p.m., the appellant herein called him over phone and informed that his sister is in critical condition and asked him to come immediately. Accordingly, he came to Yadgir hospital. But, she was not in a position to speak and was unconscious. He has not enquired with the accused how it has happened to his sister. There-afterwards at the say of the accused and his relatives, he put his signature on one writing. Then his sister was shifted to Yanagonda hospital for higher treatment. After 3-days his sister regained consciousness and started to speak. When enquired, she told before them that her husband assaulted her and then put a rope into her neck and strangulated. She got treatment for 5-days in the Yanagonda hospital and there-afterwards they came to the native place. There-afterwards after one month, he went to Gurmitkal police station along with his sister. Police enquired with her and prepared the complaint. She is illiterate. She has put her thumb impression. In the cross-examination, he denied the suggestion that during festivals, the appellant used to come to their village along with his sister. But, he deposed that accused used to come to the village only to take back his sister. He denied the suggestion that accused never used to give any ill-treatment to his sister so also denied the further suggestion that accused was not at all ill-treating to his sister on the ground that she did not begot the children and insisting her to bring additional dowry amount.

PW-4 who is the father of PW-2 Anjamma also deposed that about one year this accused treated his daughter properly and there-afterwards as she did not begot the children and he was also insisting her to bring the additional dowry amount and started to give the ill-treatment to her, his daughter was telling before them. About 7-8 months back, the accused phoned to his son and informed that his daughter is at Yadgir hospital. Accordingly, himself, his son, his relative Sharnappa together came to the said hospital. His daughter was not having the consciousness and not in a position to speak. They took her to Yanagonda hospital for further treatment. After 3-days she regained consciousness and started to speak. Then she told that accused assaulted her, put her hairs into her mouth and made an attempt to strangulate her. In the cross-examination, he deposed and admitted as true that accused and his daughter were leading happy marital life and used to go to his house during festival and when his daughter used to come to the house, accused was also coming to his house. When his daughter told before them about the ill-treatment given to her, they have not made any attempt to convene the panchayat to advise the accused. He denied the suggestion that accused has not at all given any ill-treatment to his daughter on the ground that she did not begot the children and for bringing additional dowry amount. He denied the suggestion that because of the abortion she was having stomach pain and for that reason they got treatment to her. He denied the suggestion that because of the attempt to commit suicide, there will be a case against his daughter and they filed a false complaint against the accused person.

PWs-5 and 6 who are said to be panch witnesses to the spot mazhar Ex.P-2 and for the seizure of MO-1 at the spot and both the witnesses turned hostile and not supported the case of the prosecution. Even in the cross-examination by the Public Prosecutor, nothing is elicited through their mouth so as to believe that the said panchanama was conducted in their presence.

PW-7 is the Investigating Officer, who deposed in his evidence that on 18.3.2010 in the evening at 7.15 p.m., when he was in the police station, PW-2 came to the police station and gave complaint which was reduced into writing and case was registered in their police station Crime No. 45 of 2010 for the offence punishable u/Secs.498-A and 307 of IPC and then issued the FIR as per Ex.P-4 and complaint is at Ex.P-3. Earlier to that, on 30.1.2010 when he came to know from Yadgir Doctor about PW-2 admitting to the said hospital, immediately he visited the said hospital at Yadgir and PW-2 was not in a position to speak and he enquired and recorded the statement of the brother of PW-2 and on the basis of the said statement he registered the case in their police station Crime No. 8 of 2010 as against Anjamma for the offence punishable u/Sec.309 of IPC and issued the FIR as per Ex.P-5. He has also deposed that on 19.3.2010 conducted panchanama of the spot and seized one rope which was shown by the complainant and he has seized the same in the presence of panch witnesses which is MO-1. He further deposed that after completing the investigation, he filed the charge sheet against the accused person. He further deposed that, in the case at Crime No. 8 of 2010 B-final report was filed. In the cross-examination, he denied the suggestion that on 18.3.2010 PW-2 has not at all came to the police station nor lodged the complaint. He denied the further suggestion that he has not at all gone to the spot nor conducted panchanama and not at all seized MO-1 from the spot. He denied the further suggestion that PW-2 herself made attempt to commit suicide and to save her from the said case at the instance of one Shamappa, the brother-in-law of PW-2, false case is registered against the accused person and false B-false report has been submitted in Crime No. 8 of 2010.

Looking to the evidence placed on record and as I have already observed above, even if it is assumed that for a period of 3-days as deposed by PW-2 she was not having consciousness and not in a position to speak and after 3-days when she regained consciousness and she was in a position to speak and she know what had happened to her and when she narrated about the true facts that has happened on the date of the accident nothing prevented her to go to the police station and lodge the complaint in that regard or if not by her, parents, brother could have gone to the police station immediately to lodge the complaint against the accused person which is not done in this case. But, as per the prosecution case, she went to the police station on 18.3.2010 after the lapse of 68-days. Why there is such a long delay of more than 2-months, there is no proper explanation from the side of the complainant or her witnesses. This assumes importance because earlier complaint was lodged against herself for the offence punishable u/Sec.309 of IPC for making an attempt to commit suicide and that case was also investigated by the police. But, looking to the evidence of PW-7, the Investigating Officer, he deposed that B-false report was filed in the earlier complaint for the offence punishable u/Sec.309 of IPC. Those documents are not before the Court to show as to how the B-false report was filed and what was the material collected during the investigation in that criminal case. This is important because suggestion was made by the learned counsel for the accused while cross examining PW-7 that such a false B-false report has been filed in the said case. Not only that, though it is a case of the prosecution that after she was admitted to Yadgir hospital subsequently she was shifted to Yanagonda hospital but so far as admitting her to the Yanagonda hospital, what is the treatment given to her and when she was admitted when she was discharged from the hospital, absolutely, no material is placed before the Court. No doctor of Yengonda has been examined. Perusing the wound certificate Ex.P-1 Doctor has mentioned that the injured was brought to the hospital accompanied by one Kashappa i.e. the appellant herein and one Shamappa who is the own brother of said Anjamma for a report of certain injuries said to have been caused on 29.1.2010 and to be due to attempt to hanging. The earlier complaint filed by her own brother PW-3 Shamappa, why he filed such a false complaint, there is no material placed to show that there was any enmity of PW-3 with his own sister Anjamma so as to file such false complaint before the police. Therefore, it is the defence of the accused that as she has not begotton the children and even according to the complainant Anjamma and her parents and relatives that two times there was abortion, she did not begot the children. It is the defence of the accused that she used to have the stomach pain continuously and she was disappointed and frustrated, for that reason, she committed suicide. But, on the contrary, it is the allegation that the complainant/prosecution that as she did not begot the children the accused herein started to ill-treat her and he was also insisting her to bring the additional dowry amount and for that reason she committed suicide. But, looking to the material placed on record, the allegation made by the prosecution appears to be unnatural. If she did not begot the children, why she has to bring the additional dowry amount. But, looking to the defence of the accused, it probabalize the defence of the accused that as she did not begot the children, she was frustrated and dis-appointed for that reason she made an attempt to commit suicide. This also gains support from registration of the earlier complaint for the offence punishable u/Sec.309 of IPC. As I have already observed above, even for closing the earlier complaint, the materials are not before the Court that no such attempt was made by her and it was a false complaint. Under such circumstance, the trial Court ought to have look into these important material aspects while appreciating the case of the prosecution.

It is no doubt true that the Doctor who has been examined as PW-1, when suggestion was made that when a person makes an attempt to commit suicide by hanging, the ligature mark found on PW-2 can be caused has been denied by the Doctor and Doctor also deposed that such marks will be possible only if the third person made an attempt to strangulate. But, court has to see the entire materials placed on record and what is the cumulative effect to come to the right conclusion. Only on the basis of the evidence of PW-1 ignoring the other material placed on record, Court cannot comes to the conclusion that it is an act of the accused to strangulate his wife PW-2. Even with regard to the ill-treatment and harassment, the evidence of the prosecution is not consistent. Looking to the complaint averments under Ex.P-3 dated 18.03.2010 wherein complainant has mentioned that two times there was abortion to her, wherein she has not mentioned that the said abortion is because of the reason that her husband kicked on her stomach, as a result of which, there was abortion. If really that were the reason for abortion, she would not have missed to mention the same in her complaint. But looking to her oral evidence before the Court she has deposed that her husband kicked her on her stomach and there was abortion, not only that she has deposed that accused was kicking her on her stomach continuously.

Apart from that P.Ws.5 and 6, who are said to be the panch witness to spot mahazar (Ex.P-2), have not supported the case of the prosecution and they have also clearly deposed before the Court that rope (M.O.l) was not seized in their presence. Even in the cross-examination of these two witnesses by PP, after treating them as hostile, there is no acceptable evidence through the mouth of these two witnesses.

Apart from that, very strange thing in this case is that the incident is said to have taken place on 29.01.2010 and the spot mahazar was conducted on 19.03.2010 i.e., after lapse of more than 69 days and it is the case of the prosecution, for that 69 days rope (M.O.l) was lying at the said place and the P.W.2- complainant shown the rope to the Police in the presence of panch witnesses and the same has been seized. This is totally unacceptable and most unnatural.

Considering all these aspects of the matter, it shows that Trial Court has not properly appreciated the oral as well as the documentary evidence and wrongly read the evidence and wrongly proceeded to convict the appellant-accused for the said offences. After re-appreciating entire materials placed on record, I am of the opinion that the prosecution utterly failed to prove the charges for the offence punishable under Sections 498A and 307 of IPC against the appellant-accused. Hence, the judgment and order of conviction passed by the Trial Court is not sustainable in law. Accordingly, appeal is allowed and the judgment and order of conviction dated 25.01.2011 passed by the District and Sessions Judge, Yadgiri, in S.C.No.15 of 2010 is hereby set aside and the appellant-accused is acquitted of the charges levelled against him.

The fine amount deposited, if any, is ordered to be refunded to the appellant-accused.

The bail bonds of the appellant-accused stands cancelled.