Point of Law: Dowry harassment- husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to “cruelty”, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A IPC

JUDGMENT :

This appeal has arisen out of the judgment and order of conviction dated 29.01.2011 passed in S.C.No.107/2010 on the file of the Principal District and Sessions Judge, Chitradurga, for the offence punishable under Section 498A of IPC.

2. The prosecution case in nutshell is that the complainant’s eldest daughter Mamatha was given in marriage to appellant-accused No.1. Their marriage was performed in the year 2003. After the marriage both of them were residing in the house of the complainant at Kurubarahalli for about two years. Thereafter they started residing at K.T.Hally Village and they were visiting the house of the complainant during festivals. On 29.08.2007 at 8.00 p.m., complainant’s daughter Mamatha came to her parents house and complained about the harassment caused by accused Nos.2 and 3, who are the mother and sister-in-law of victim for silly reasons and at their instigation her husband-accused No.1 has meted out cruelty. Thereafter, on 01.09.2007 at about 10:00 a.m. complainant’s daughter Mamatha committed suicide by consuming poison in the farm house of the complainant. Based on the complaint of victim’s father, Hiriyur Police have registered the case at Crime No.474/2007 against accused Nos.1 to 3 for the offence punishable under Section 306 read with Section 34 of IPC. After investigation, the police have submitted the charge sheet in C.C.No.127/2008 for the offence punishable under Sections 498A, 306 read with 34 of IPC. After committal of the case, the accused have appeared and the charges were framed for the offence punishable under Sections 498A and 306 of IPC. The accused pleaded not guilty to the said charges and claimed to be tried.

The prosecution has examined 13 witnesses as P.Ws.1 to 13 and 10 documents are marked as Exs.P-1 to P-10. On closure of the evidence of prosecution, the statement under Section 313 Cr.P.C was recorded. The accused have denied the incriminating circumstances and have filed their statement of defence, but they have not led defence evidence.

3. On appreciating the oral and documentary evidence placed on record, the trial Court acquitted accused Nos.2 and 3 for the offence punishable under Sections 498A and 306 read with 34 of IPC and acquitted the appellant-accused No.1 for the offence punishable under Section 306 of IPC but convicted him for the offence punishable under Section 498A of IPC. Being aggrieved by the order of conviction, accused No.1 has preferred the appeal.

4. Heard learned amicus-curiae for the appellant-accused No.1 and learned High Court Government Pleader for the respondent-State. Perused the prosecution records and the impugned judgment and order.

5. Learned amicus-curiae has submitted that initially the FIR was registered for the offence punishable under Section 306 of IPC only, but later in the charge sheet, Section 498A of IPC was added. The evidence of parents and sister of the victim goes to show that immediately after the marriage, the victim and her husband were residing at Kurubarahalli in complainant’s house for about two years, at that time, there was no harassment whatsoever. The allegation of harassment and cruelty is only after they shifted to K.T. Halli village, which is the native place of accused No.1. There is no clinching evidence to show that accused Nos.1 to 3 have caused harassment to the victim. One of the allegations is that appellant-accused No.1 was having extra marital affair with his sister-in-law (brother’s wife). The intimacy of the husband with other woman do not necessarily lead to presumption of cruelty. There is no material evidence to show that he has failed to discharge his marital obligations. According to the prosecution version, accused No.1 was more dependant on his sister-in-law (accused No.3) and he was requesting her to serve lunch or dinner instead of his wife, such an incident cannot be termed as cruelty or harassment. There is no satisfactory evidence to prove that accused Nos.1 and 3 have conspired to cause h