Karnataka High Court

K. Ramakrishnappa vs State By Bandur Camp Police Station on 28 July, 2006

Equivalent citations: 2007(5)KARLJ83

Author:
K. Ramanna

Bench:
K. Ramanna

JUDGMENT

K. Ramanna, J.

1. This appeal is filed by the appellant-accused under
Section 374(2)
of the Criminal Procedure Code, 1973, against the judgment of conviction dated 19-4-1996, passed by the learned Sessions Judge, Chitradurga, in S.C. No. 68 of 1994, -whereby the Trial Court sentenced him to undergo rigorous imprisonment for 7 years for the offence punishable under
Section 306
of the Indian Penal Code, 1860 and further R.I. for a period of 3 years for the offence punishable under
Section 498-A
of the IPC. The appellant herein not being satisfied with the judgment of conviction and sentence passed by the learned Sessions Judge, Chitradurga, challenged in this appeal on the following grounds.

2. Learned Sessions Judge has gravely erred in convicting the appellant-accused for the aforesaid offences. It is full of contradictions and omissions in the evidence of prosecution witnesses. The evidence of official witnesses had not been corroborated by any of the independent witnesses. Even then, the learned Sessions Judge, accepted the partial and one side version of the prosecution case and consequently come to a wrong conclusion and the prosecution has suppressed the true version of the incident and inspite of that the Trial Court has erred in accepting the evidence of the Police witnesses. The Trial Court also not properly appreciated the oral and documentary evidence placed through P.Ws. 1, 4, 5, 6 and 13. So-called dying declaration said to have been made by the deceased Thippakka alias Thippamma is in-admissible in the evidence. Hence this appeal.

3. The brief facts leading to this case are that the appellant is none other than the husband of late Thippamma and father of deceased Renukamma. The marriage of this appellant took place about 26 years ago with the deceased Thippamma. It is the further case of the prosecution that the appellant always consumed liquor and quarrelling with his wife Thippamma and daughter Renukamma and that he had illicit relationship with some other woman and he wanted to bring her to the house, but the deceased Thippamma and her daughter late Renukamma, opposed the same. On 21-3-1993 at about 9 p.m., when the wife and daughter of the appellant were in the house, along with the son of the appellant, P.W. 3-R. Govindaraj, the appellant-accused, by consuming liquor, started quarrelling with his wife, but P.W.3-R. Govindaraj, son of the appellant-accused, thinking that it has become usual practice of his father to quarrel with his mother and sister, had left the house before 9 p.m. According to the prosecution case, P.W. 4-Kyasanaika, who was also residing in the nearby Police quarters came and advised the appellant and his wife not to quarrel. After some time, the appellant-accused went outside and so also P.W. 4-Kyasanaika. But, the deceased Thippamma and her daughter late Renukamma, committed suicide by pouring kerosene and set themselves on fire, after bolting the door from inside. After observing the kerosene smell, P.W. 5-M. Humayun, who is also a Police Constable put up in the first floor of the Police quarters as well as P.W. 4-Kyasanaika, came and broke open the door and found the wife and daughter of the appellant-accused burnt and P.W. 5-M. Humayun extinguished the fire by pouring water and secured the ambulance and shifted them to the C.G. Hospital, Davanagere and P.W. 1-Dr. K. Siddappa admitted both Thippamma and her daughter Renukamma and sent M.L.C. letter to the concerned Police. P.W. 13, the then Police Inspector came and recorded the statement of P.W. 1 and on the same night, registered the case for offences under
Sections 498-A
and
of the IPC, in the presence of P.W. 1 and submitted the FIR. Inspite of the treatment given to them, Kumari Renukamma died on 24-3-1993 at 8.05 a.m., whereas Thippamma died on 27-3-1993 at 10.45 p.m. During the course of investigation, P.W. 13-inspected the spot and drew spot mahazar and recovered incriminating articles found in the house. The inquest was held over the dead body of Thippamma and Renukamma. Soon after, the appellant-acccused was arrested and produced before the Court. The statements of prosecution witnesses were recorded, including P.W. 3-R. Govindaraj, son of the appellant-accused and charge-sheet was submitted against the appellant for offences punishable under
Sections 498-A
and
of the IPC. So, after hearing the arguments of both sides, the Trial Court framed the charges for the aforesaid offences. So, in order to prove the charges leveled against the accused, the prosecution examined in all 13 witnesses (P.Ws. 1 to 13) along with Ex. P. 1 to Ex. P. 14(a) and M.Os. 1 to 5. Thereafter, the Trial Court recorded the statement of the appellant-accused under
Section 313
of the Cr. P.C. The defense of the accused is totally denied. Hence, the Trial Court, after hearing the arguments of the Public Prosecutor, after going through the records, after hearing the submission of the accused and after considering the entire evidence, found that the appellant-accused was guilty of the offences punishable under
Sections 498-A
and
of the IPC and sentenced him to suffer RI for 7 years for the offence under
Section 306
of the IPC and further RI for a period of 3 years for the offence under
Section 498-A
of the IPC, with direction that both sentences to run concurrently.

4. I have heard the arguments of the learned Counsel for the appellant and the learned High Court Government Pleader for the respondent.

5. During the course of the arguments, learned Counsel for the appellant submitted that the deceased Thippamma was a cancer patient and inspite of providing treatment by the appellant, her disease could not be cured. Therefore, unable to bear the stomach pain the deceased Committed suicide. It is submitted that the Ex. P. 2 - so-called dying declaration of the deceased Thippamma, said to have been recorded by P.W. 13, is not in accordance with law, when a woman suffers 95% of burn injuries over her face, limbs and other parts of the body it is highly impossible to make such a statement before the Police while undergoing treatment in the hospital. P.Ws. 4 and 6 though neighbours, they were Police Officials. But the, Trial Court, without corroboration of any independent witnesses, believed their evidence and came to a wrong conclusion, which is liable to be set aside. Further, it is submitted that P.W. 1-Dr. K Siddappa, who was present in the hospital when the injured Thippamma and Renukamma were brought to the hospital, has not mentioned about the condition of the said women when P.W. 13 recorded the so-called dying declarations Ex. P. 2 and Ex. P. 3. No such certification has been made to know about their conditions. Even though the prosecution placed evidence on the related witnesses, P.W. 3-R. Govindaraj and P.W. 9-Kanumakka, the Tribunal has not properly appreciated the same. Therefore, the Trial Court had committed a grave error in accepting the evidence of only the official witnesses i.e., the Police witnesses. Further, it is submitted that the Trial Court ought to have given some more opportunity to the appellant-accused to engage some other Advocate to argue the case and to put-forth his arguments. The prosecution has not examined any women folk of the quarters or neighbours to show about the relationship between the deceased Thippamma and the accused.

6. In support of his contention, learned Counsel for the appellant has relied on various decisions.
In the case of
Leila Srinivasa Rao v. State of Andhra Pradesh
, wherein the Hon'ble Apex Court held as follows.-

(A) Indian Evidence Act, 1872
(1 of 1872),
Section 32
- Multiple dying declarations - Wife alleged to have poured kerosene oil on her body and on her child - Both died due to severe burns - First dying declaration by deceased wife recorded by Magistrate after taking all precautions - Contained only general allegations against her mother-in-law - Only 5 minutes thereafter another statement was recorded by Head Constable - In said second dying declaration allegations of harassment were against husband as well as mother-in-law - Inconsistency in two dying declarations - Witnesses including father of deceased did not support prosecution case that deceased was treated with cruelty by accused - Accused-husband cannot be convicted under
Section 498-A
of the IPC solely on basis of said dying declarations - For that reasons his mother also cannot be convicted.

(B)
Indian Penal Code
, 1860 (45 of 1860), Section 498-A - Harassment and cruelty - What amounts to - Bringing up three children of sister-in-law of deceased in husband's house - Was objected to by deceased wife - Annoyance caused thereby to wife cannot be equated - With cruelty or harassment - Appellant or his parents cannot be blamed for having shown compassion towards children of his deceased sister.

In the case of
Ramesh Kumar v. State of Chhattisgarh
wherein the Hon'ble Apex Court held as follows.-

(A)
Indian Penal Code
, 1860, Sections 306 and
- Whether husband abetted suicide of wife by instigating her to do so - Appreciation of evidence - "Instigation" - Meaning - There must be a reasonable certainty to incite the consequence - Having regard to the dying declaration and suicide note of the deceased along with all other circumstances of the case, held, offence under Section 306 not made out -
Indian Evidence Act, 1872
, Section 113-A - Words and Phrases - "Instigation".

In the case of Sanju alias
Sanjay Singh Sengar v. State of Madhya Pradesh
wherein the Hon'ble Apex Court has held as follows.-

(B)
Indian Penal Code
, 1860, Section 306 read with
Section 107
- Abetment of suicide - Quarrel taking place between appellant and deceased in which appellant was said to have told the deceased "to go and die" - Deceased found dead two days later - Held, suicide was not proximate to the quarrel though the deceased was named in the suicide note - Hence suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and die.

(C)
Indian Penal Code
, 1860, Section 306 - Suicide note - Appellant specifically named in suicide note which was otherwise not coherent and reflected disturbed state of mind - There was also evidence on record that the deceased always indulged in drinking and was not doing any work - Suicide note, taken with other circumstances, held, deserved no credence.

In the case of
Mohd. Hoshan and Anr. v. State of Andhra Pradesh
wherein the Hon'ble Apex Court held as follows.-

(A)
Indian Penal Code
, 1860, Sections 498-A and 306 - Mental cruelty - Determination of - Necessary factors that should be taken into account in respect therefore, stated - In the instant case, the continuous taunting or teasing of the deceased by the appellants on one ground or the other amounted to mental cruelty drawing her to end her life.

In the case of
Satvir Singh and Ors. v. State of Punjab and Anr.
wherein the Hon'ble Apex Court held as follows.-

(E)
Indian Penal Code
, 1860, Section 306 or 304-B -
Indian Evidence Act, 1872
, Section 113-A - Scope of offence under Section 306 read with
Section 113-A
, Indian Evidence Act and offence under Section 304-B read with
Section 113-A
, Indian Evidence Act compared - To constitute offence under Section 304-B read with
Section 113-A
, Indian Evidence Act it is necessary that cruelty or harassment must have been caused "soon before her death" or earlier but under Section 306 read with
Section 113-A
, Indian Evidence Act there is no such requirement.

In the case of
State of Haryana v. Jasvinder Singh and Ors.
(2000)9 SCC 387 : 2001 SCC (Cri.) 402 wherein the Hon'ble Apex Court held as follows.-

(A)
Indian Penal Code
, 1860, Section 306 - Suicide by housewife by sprinkling kerosene on her body and setting herself on fire - Trial Court on appreciation of evidence finding that ingredients necessary to attract Section 306 not satisfied - High Court on reappreciation of evidence also affirming that conclusion and taking the view that there was no evidence to establish the case of instigation or abetment of the accused persons to commit suicide - In view of order of acquittal passed by the Trial Court and High Court, held, there was no justification for Supreme Court's interference with the same -
Criminal Procedure Code
, 1973, Sections 378 and 386.

In the case of Swamy Prahaladdas v. State of Madhya Pradesh and Anr. 1995 SCC (Cri.) 943 : 1995 Supp. (3) SCC 438 the Hon'ble Apex Court held as follows.-

Indian Penal Code
, 1860, Section 306 - Abetment of suicide - Sexual jealousy between the appellant and the deceased - During quarrel the appellant allegedly remarking to the deceased to go and die - Thereafter the deceased going home and committing suicide - Held, suicide not direct result of the words uttered by the appellant - Sessions Court erred in summoning the appellant to face the trial - Proceedings against the appellant quashed.

7. On the other hand, learned High Court Government Pleader submitted that the prosecution has placed cogent and consistent evidence through the witnesses, who are none other than the neighbors and are residing within the vicinity of the Police quarters and the Trial Court rightly believed the oral testimony of the aforesaid witnesses and came to a correct conclusion by convicting the appellant-accused. It is submitted that immediately after the suicide attempt, both the injured were shifted to the hospital and P.W. 1-Dr. K. Siddappa, examined the victims and immediately acted and sent MLC letter to the jurisdictional Police. P.W. 13, the then Police Inspector rushed to the hospital and recorded the dying declaration of the deceased Thippamma. Merely because P.W. 1 has not made any certification on Ex. P. 2 and Ex. P. 3, it does not mean that they were concocted documents. The place of incident is at a distance of 15 feet away from the quarters of P.W. 4. Whereas, P.Ws. 5 and 6 were also put up in the Police quarters. Their evidence has been rightly accepted and believed by the Trial Court. So, their presence at the place of incident cannot be doubted. Therefore, the Trial Court has come to a right conclusion in convicting the appellant-accused. Since P.Ws. 3 and 9 are the son and sister-in-law of the appellant, they turned hostile and it does not mean that the appellant was -not ill-treating and harassing the deceased persons in intoxicating condition. No suggestions were made to P.Ws. 4, 5 and 6 nor they had any animosity to give false evidence. It is submitted that the admissions if any made by P.Ws. 4, 5 and 6 regarding non-reporting of the said matter to the official superiors of the appellant regarding his quarrelling with his wife and daughter every day does not mean that they are untrustworthy witnesses to the evidence. It is submitted that Ex. P. 2 is recorded by P.W. 13 in the presence of P.W. 1 does not mean that it is a concocted document. Therefore, the judgment of conviction and sentence is in accordance with law and the appeal is liable to be dismissed.

8. I have heard the arguments of both the sides. The point for my consideration and decision is.-

Whether the deceased Thippamma and her daughter, Renukamma were unable to bear, both mental and physical, torture meted out to them by the appellant-accused and committed suicide by setting themselves on fire? If so, whether the appellant has abetted the deceased to commit suicide on account of ill-treatment meted out to them?

9. It is an undisputed fact that in 1993, the appellant was working as a Police Constable attached to Bandur Camp Police Station, Davangere. The deceased persons, the accused-appellant as well as P.W. 3-R. Govindaraj, son of the appellant were residing in the Police quarters at Nituvalli in Davangere and the quarters of P.W. 4 was adjacent to the quarters of the appellant. It is also an undisputed fact that both Thippamma as well as Renukamma died on account of burns. As on the date of incident, the deceased Renukamma was aged about 19 years. She discontinued her studies and started living with her parents in the Police quarters.

10. The prosecution has completely failed to find the exact reason behind the suicide committed by two women. Of course the accused is in the habit of consuming alcohol, that does not mean that it is the main cause for the quarrel between the accused and the deceased Thippamma, and ultimately that made the deceased to take the extreme step of committing suicide. But in the instant case there is not a single earlier instance of the accused harassing the deceased physically or mentally after consuming alcohol, has been brought to the notice of the Court through any independent witnesses. If the accused used to harass the deceased physically or mentally then definitely it must have come to the knowledge of her parents and then they would have filed a complaint about it against the accused. But in the instant case the parents of the deceased have not spoken about the ill-treatment meted out by the accused to the deceased. If at all the accused had ill-treated the deceased then their parents should have lodged a criminal case against the accused. That has not happened in this case and therefore it can be said that there was no such history of ill-treatment committed by the accused. Therefore, it is difficult to come to a conclusion for what reason the deceased might have committed suicide. At one stage the accused in his evidence has stated that the deceased Thippamma was suffering from acute stomach ache and he has given treatment in several hospitals but the stomach ache has not subsided even after treatment therefore she has taken such a step of committing suicide by setting herself on fire. This reason also cannot be disbelieved by the Court.

11. The learned Sessions Judge mainly relied on the evidence of the P.Ws. 4, 5 and 6. P.Ws. 4, 5 and 6 have stated in their evidence that they have seen the accused quarrelling with deceased in drunken condition several times. But none of them have reported the same to their higher officials about the harassment or ill-treatment meted out by the accused to the deceased wife in drunken condition. Further, the prosecution has not corroborated their evidence through any independent witnesses. Therefore, their evidence cannot be believed that the accused was frequently quarreling with his wife in drunken condition. The prosecution has mainly contended that the accused was daily quarreling with his wife under the influence of alcohol. It is further contended that on the date of the incident also the accused had come to the house after consuming alcohol and picked up quarrel with his wife. To prove that he was under intoxication of alcohol he was not subjected to any kind of test conducted by the police. Therefore, the say of the prosecution that the accused used to consume alcohol daily and quarrel with his wife cannot be believed.

12. The prosecution has not examined any women folk of the neighbouring quarters of the deceased to show that the accused was harassing the deceased physically and mentally. If there was any ill-treatment meted out earlier by the accused, the deceased might have told about the same, especially, with their neighbouring women folk, and if those women had been brought to witness-box the truth would have come to light. In view of this infirmity also, it cannot be said that the accused was ill-treating or harassing the deceased physically or mentally by consuming alcohol and abetted the deceased to commit suicide.

13. The doctor P.W.1 in his evidence has stated that the deceased Thippakka had sustained 95% burn injuries over face, limbs and other parts of the body. This creates a doubt in the mind of the Court whether any person, with 95% burn injuries over the face, limbs and other parts of the body, can be in a position to talk. But in respect of the deceased Renukamma he has not mentioned the percentage of burns. The doctor has admitted that, in Exs. P. 2 and P. 3 he has not specifically stated about the condition of the deceased in giving their respective statements. Due to this infirmity Exs. P. 2 and P. 3 cannot be believed.

14. To constitute abetment to commit suicide and cruelty to women, the Supreme Court in any number of cases has dealt with elaborately. It is relevant to quote here a few Supreme Court judgments which relate to abetment and cruelty to women.

15. Firstly, in the decision reported in the case of Ramesh Kumar, the Apex Court held that:

Whether husband abetted suicide of wife by instigating her to do so - Appreciation of evidence - "Instigation" - Meaning - There must be a reasonable certainty to incite the consequence - Having regard to the dying declaration and suicide note of the deceased along with all other circumstances of the case, held, offence under Section 306 not made out.

Secondly, in the decision reported in the case of Sanju alias Sanjay Singh Sengar, the Supreme Court held that:

Section 306 read with
Section 107
- Abetment of suicide - Quarrel taking place between appellant and deceased in which appellant was said to have told the deceased "to go and die" - Deceased found dead two days later - Held, suicide was not proximate to the quarrel though the deceased was named in the suicide note - Hence suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and die.

At paragraph 11 of the same decision the Supreme Court quoted a paragraph from the judgment reported in the case of Ramesh Kumar, which reads thus:

A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

Thirdly, the Supreme Court in the case reported in Swamy Prahaladdas, the Apex Court held that:

Section 306 - Abetment of suicide - Sexual jealousy between the appellant and the deceased - During quarrel the appellant allegedly remarking to the deceased to go and die - Thereafter the deceased going home and committing suicide - Held, suicide not direct result of the words uttered by the appellant - Sessions Court erred in summoning the appellant to face the trial - Proceedings against the appellant quashed.

In the instant case also the accused in a fit of anger, during the quarrel, told the deceased to go and die. The utterance of these words by the accused made the deceased to take the extreme step of suicide. This incident cannot be construed as the accused abetted the deceased to commit suicide. Further the prosecution also failed to prove that the accused was harassing and ill-treating the deceased physically and mentally by consuming alcohol.

16. Considering the facts and circumstances of the case, and in view of the prosecution failing to prove the charge of abetment in committing suicide and cruelty meted out to the deceased persons by the accused, as well as considering the judgments of the Supreme Court as quoted above, it is just and proper allow this appeal.

17. Accordingly, the appeal is allowed. The impugned judgment and order of conviction passed by the learned Sessions Judge is hereby set aside. The appellant is set at liberty and the bail bonds, if any, executed by him, stand cancelled.