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2013 Supreme(Kar) 126
KARNATAKA HIGH COURT CIRCUIT BENCH AT GULBARGA
ANAND BYRAREDDY, J.
Babu – Appellant
Versus
State of Karnataka (through Ratkal Police Station), Gulbarga – Respondent
Criminal Appeal No. 3532 of 2012
Decided on : 22.2.2013
Sri Ishwar Raj S. Chowdapur, for Appellant.
Sri S.S. Aspalli, Government Pleader, for Respondent.
Headnote:INDIAN PENAL CODE, 1860 - Section 306: [Anand Byrareddy, J] Conviction for offence under - In order to convict a person under Section 306 of the IPC, there has to be a clear mens rea to commit the offence and it also requires an active act or direct act which lead the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
INDIAN PENAL CODE, 1860 - Sections 498-A & 306: [Anand Byrareddy, J] Allegation as to cruelty, harassment for dowry and abetment of suicide - Wife along with her daughter died by drowning in water - No direct evidence that accused husband drove deceased to commit suicide - Even if deceased was being harassed and ill-treated, there was no such allegation of harassment and ill-treatment of young child - Held, Constant cruelty meted out to wife and abetment of suicide not proved. Accused was acquitted.
INDIAN PENAL CODE, 1860 - Sections 498-A & 306: [Anand Byrareddy, J] Appeal against conviction - Allegation that accused ill treated his deceased wife after she gave birth to a girl and also demanded dowry - Also use to assault - Deceased died of drowning in a well - Complaint by mother of deceased - Trial Court found appellant/accused guilty, convicted the accused - Held, Given the rival contentions, as pointed out by the learned Counsel for the appellant, in order to bring home the charge of an offence punishable under Section 498-A IPC, it is necessary to prove that there was cruelty. There was nothing on record to indicate that the family of Laxmi was incapable of providing any dowry, given the fact that her father was no more and that they were not well of and the marriage having taken place six years prior to the incident, the demand for dowry coming at a late stage, would not raise any presumption of such demand in the absence of any direct evidence. It is only to bring the case within the scope of Section 498-A that such an allegation is made. Therefore, to hold that the prosecution had established its case beyond all reasonable doubt insofar as the offence punishable under Section 498-A cannot be presumed merely on the basis of the evidence of PWs.8 to 11. Insofar as the offence punishable under Section 306 of the IPC, is concerned, again would require the prosecution to establish the circumstance that there was instigation by the appellant on Lakshmi to commit suicide and that he had intentionally driven her and his daughter to commit suicide. In order to convict a person under Section 306 of the IPC, there has to be a clear mens rea to commit the offence and it also requires an active act or direct act which lead the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. The above being the settled legal position insofar as abetment of suicide is concerned, in the absence of any direct evidence of the appellant having drives the deceased to commit suicide, the possibility of the deceased having been hyper sensitive to the alleged demand of the appellant, that he wanted a male child and having regard to the aspect that the latent or patent suicidal tendencies of an individual are not to be placed in a straitjacket formula, the actual state of mind of Laxmi in having committed suicide, cannot be attributed to any instigation or abetment by the appellant in her having committed suicide, along with her only child. It is also possible that sheer frustration of not having borne a male child, which the appellant is alleged to have desired, may have also driven her to commit suicide. Even if it was her case that she was being harassed and ill-treated, there was no such allegation of harassment and ill-treatment of the young child. In that view of the matter, it cannot be concluded with any certainty that there was constant cruelty meted out to Lakshmi and that there was abetment of the commission of suicide by Laxmi. In that view of the matter, the finding of the Court below based entirely on the evidence of PW.8 to 11 cannot be sustained.
ANAND BYRAREDDY, J.
1. Heard the learned Counsel for the appellant and the learned Government Pleader.
2. The accused is in appeal in the following circumstances:–
The appellant was accused of offences punishable under Sections 498A and 306 of the Indian Penal Code, 1860 (Hereinafter referred to as the IPC, for brevity).
The complainant Sonabai was a resident of Hanumantwadi in Basavakalyan Taluk, Bidar District. She had two daughters, Laxmibai and Sangeeta. She had lost her husband about 12 years prior to the complaint. She had performed the marriage of her elder daughter Lakshmi six years prior to the complaint. Lakshmi was married to the present appellant. It is claimed that the accused had looked after Lakshmi well till the birth of their first child, which was a girl and he was not happy with the girl child and thereafter started ill-treating Lakshmi, apart from which, he was also demanding dowry and on that pretext, he used to assault her continuously. In this regard, it is the complainant's case that Lakshmi had repeatedly told her about the ill-treatment. The complainant however had consoled her daughter and had assured her that she would advise the accused to take better care of her. It is the complainant's further case that in this regard, she along with her son Ramakrishna and Goudappa Patil went to the house of accused at Suntan village and had advised the accused not to ill-treat Lakshmi by demanding money, as they could ill- afford any such dowry. However, on 7.3.2008, she had received a message from Jaganath of Suntan village, that at about 10 p.m., her daughter Lakshmi and grand-daughter Bhagewati had died of drowning in a well. The complainant, Ramakrishna and Goudappa Patil did rush to the Suntan village and saw the dead body of her daughter and grand-daughter and then lodged a complaint against the accused. Based on which, a case was registered on 8.3.2008 and a report was submitted to the Court of the JMFC. An inquest mahazar was conducted of the deceased and the bodies were sent for post-mortem and after taking further steps, a charge sheet was submitted against the accused as on 17.9.2008. The case was committed to the sessions Court for trial, which framed charges against the accused and the accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 17 witness and marked 11 documents and 3 material objects. On conclusion of the trial and on examination of the accused under Section 313 of the Code of Criminal Procedure, 1973, the Court below had framed the following points for consideration:–
1. Whether the prosecution proves that accused has given ill-treatment to deceased Lakshmi by demanding her to bring money from her parental house?
2. Whether the prosecution proves that accused has subjected deceased Lakshmi to cruelty to such an extent that deceased Lakshmi has committed suicide on 17.3.2008?
3. The Court below answered the above points in the affirmative and accordingly had convicted the accused to undergo simple imprisonment for three years and pay a fine of Rs. 5,000/- for the offence punishable under Section 498-A IPC and 10 years simple imprisonment and to pay fine of 10,000/- for the offence punishable under Section 306 of the IPC. It is that which is under challenge in the present appeal.
4. Learned Counsel for the appellant would submit that the case of the prosecution rests entirely on the evidence of PWs. 8 to 11. PW.8 is the mother of the deceased Lakshmi, PW-9 is the brother, PW-10 is the sister and PW-11 is an elder of the village. It is their consistent evidence that Lakshmi was constantly complaining about the appellant ill-treating her complaining that she had produced a female child when he wanted a male child and further that she had not fetched enough dowry and therefore she should bring some more money. It is further reiterated that the complainant along with her son and Goudappa Patil had advised him to take better care of Lakshmi and that th
