Ningappa S/O Dyavappa Biradar vs The State Of Karnataka
2022 Latest Caselaw 908 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 20TH DAY OF JANUARY, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200154/2016


BETWEEN:

Ningappa S/o Dyavappa Biradar
Age: 30 years, Occ: Agriculture
R/o: Bommanjogi, Tq: Sindagi
Dist: Vijayapur
                                                ... Appellant

(By Sri Shivanand V. Pattanashetti, Advocate)

AND:

The State of Karnataka
Represented by Addl. SPP
High Court Of Karnataka,
Kalaburagi Bench
Through Devar-Hipparagi P.S
                                             ... Respondent

(By Sri Sharanabasappa M.Patil, HCGP)

      This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to set aside the judgment of conviction
and order of sentence dated:20.09.2016 & 21.09.2016
respectively passed by the III Addl. Sessions        Judge
Vijayapur, in Sessions Case No. 33/2015 and acquit the
appellant/accused.
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      This appeal coming on for final hearing this day, the
court delivered the following:

                          JUDGMENT

Heard Sri Shivanand V. Pattanshetti, learned counsel

for the appellant and Sri Sharanabasappa M. Patil, learned

High Court Government Pleader for the respondent-State

and perused the records.

2. The present appeal is filed by the accused who

has been convicted in SC No.33/2015 for the offences

punishable under Sections 498A and 306 of IPC and

ordered to undergo sentence as under:

   Offence         Punishment           Fine         Default
                                                    sentence

498A of IPC      Rigorous           Rs.25,000/-   Rigorous
                 imprisonment for                 imprisonment
                 2 years                          for 3 months

306 of IPC       Rigorous           Rs.50,000/-   Rigorous
                 imprisonment for                 imprisonment
                 5 years                          for 6 months

3. Brief facts of the case are as under:

Appellant-accused married Geeta @ Lalita Bai in the

year 2008. In the complaint lodged by Dasharath S/o

Mallappa Khedge, it is contended that after the marriage of

Geeta @ Lalitabai she joined the matrimonial home and

after some time, the accused and deceased started living

in a shed in the garden land belonging to the accused.

There were no issues from out of the marriage. Accused

started demanding money from the deceased. The

demand made by the accused was met on 4 to 5 occasions

and in all about Rs.4 to 5 lakhs and 8 tolas of gold was

given by the complainant. When the harassment was not

stopped, complainant got a panchayat convened wherein

Shrishail Khedgi, Iranna Kallappa Muradi, Adiveppa

Basappa Muradi and Karabasayya Basayya Amarkhed were

present. In the panchayat, accused was advised to lead a

happy married life. Thereafter, on 12.02.2014 again there

was a telephone call from deceased and complainant and

his younger brother Shrishail went to Bomman Jogi village

and convened the panchayat wherein Mallikarjun Yelkoti

and others advised the accused to lead a happy married

life. On 13.02.2014 the complainant returned from the

village of the accused and at about 3.30 p.m. when he was

having his lunch, his younger brother Shrishail received a

telephone call from the mobile telephone of accused. The

said call was answered by the complainant and to his

surprise it was not the accused who has called him but it

was Sharanabasappa Muradi. Sharanbasappa intimated

that his daughter Geeta @ Lalita bai has committed suicide

by hanging. Immediately, he has telephoned to his

relative in Bomman Jogi village and confirmed that the

incident is true. Thereafter, the complainant, his younger

brother and others visited the house of the accused in the

garden land and at that juncture they found the dead body

of his daughter lying on the cot. They also noticed ligature

mark in the neck region and he came to know that about

3.00 p.m. on hearing the news that the deceased has

committed suicide, Sharanabasappa Muradi, Gollalappa,

Ningappa Biradar, Siddayya S/o Rudrayya Hiremath have

all gone there and cut the rope and confirmed that

deceased was no more.

4. Based on the said complaint, Devara Hippargi

police registered a case in Crime No.15/2014 against the

accused for the offence punishable under Section 498A and

Section 306 of IPC and investigated the matter in detail

and filed a charge sheet. Learned Magistrate took

cognizance of the offence and committed the matter to the

Sessions Court. Learned Sessions Judge secured the

presence of the accused and framed charges for the

aforesaid offences against the accused. Accused pleaded

not guilty. Hence, trial was held. In order to prove the

case of the prosecution, in all 13 witnesses were examined

as PWs-1 to 13 and 12 documents were relied on by the

prosecution which were exhibited and marked as Exs.P-1

to P-13.

5. Prosecution also marked the rope with which the

deceased committed suicide as Material Object No.1. On

completion of the prosecution evidence, the accused

statement as contemplated under Section 313 of Cr.P.C.

was recorded by the learned Trial Judge. The accused has

denied all the incriminating materials put to him that was

found against him in the prosecution evidence. Though he

has stated that he would lead the evidence on his behalf,

but the material on record reveal that no such evidence

was placed on behalf of the accused. Thereafter, learned

Trial Judge heard the parties in detail and passed an order

of conviction and sentenced the accused as referred to

supra.

6. Being aggrieved by the said judgment of

conviction and order of sentence, the accused is before

this Court in appeal. In the appeal memorandum the

following grounds have been urged:

1. That, the judgment of conviction & order of sentence passed by the learned judge is contrary to the facts of the case. Evidence on record & against the settled principles of law.

2. That, the learned sessions Judge has committed a serious error in convicting the appellant without properly appreciating the evidence in its right prospective manner.

3. That, to attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary.

Hence, looking in to the evidence on record collected by the prosecution during the course of

trial, absolutely there is no material to attract the provisions of Sec. 498(A) & 306 of IPC.

4. That, looking in to the evidence of complainant Pw-1/Cw-1, PW-2/CW-6, PW-3/CW-7, CW-4/CW-13 absolutely there is no material with regard to cruelty or ill-treatment and abetment or instigation to commit suicide to attract the provisions of sec.498(A) and 306 of IPC.

5. That, PW-7/CW-18, PW-8/CW-20, PW-9/CW- 21 & PW-10/CW-24 are the independent material witnesses for the prosecution, they have turned hostile to the case of the prosecution. The trial court ought to have given benefit of doubt on the base of say of independent witnesses.

6. That, PW-5/CW-7, PW-6/CW-5 are the pancha witnesses, they have turned hostile to the case of the prosecution. The trial court ought to have given benefit of doubt on the base of say of independent witnesses.

7. That, it is settle principles of law that Sec.498(A) and 306 of IPC are independent and constitute deferent offences. Merely because accused is found guilty U/s 498(A) he should not necessarily be held to be guilty under Sec.306 of IPC on the base of said evidence, but in present case absolutely no material to attract both the alleged provisions. So, trial court ignored the said principles of law convicted the appellants without any base is bad in law.

8. That, the whole case of the prosecution is depends upon the here say witnesses and highly interested witnesses to convict the appellants, under this circumstances trial court ought to have taken more care to evaluate the evidence on record and acquitted the appellants.

9. That, there is a lot of inconsistence of evidence regarding reaching of police station, filing

of complaint, the manner in which investigation is conducted and delay in filing the complaint. This fact is not been properly appreciated by the court below.

10. That, great care must be taken in evaluating evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. But this principle is not been properly appreciated by the court elow.

11. That, there is no legal evidence collected by the prosecution during investigation as well as during the trial, even then trial court convicted the appellant is bad-in-law.

12. That, court below failed to put the questions regarding the incrementing materials & circumstances against the accused while recording the 313 statements.

13. That, court below ought to have disbelieved the say of witnesses who are very much interested in convicting the appellants.

14. That, it is respectfully submitted that, the learned Sessions Judge has not at all appreciated the case of the appellants in the light to human probabilities and the same has vitiated the findings. The reasons assigned by court in convicting the appellant is illegal and incorrect. The same has resulted in miscarriage of justice to the appellants.

15. that, the appellant seeks leave of this Hon'ble Court to urge the other grounds at the time of final hearing.

7. Reiterating the above grounds, learned counsel

appearing for the appellant Sri Shivanand V. Pattanshetti

vehemently contended that the accused is innocent of the

offences alleged against him and on the ground that the

couple had no issues, the deceased got frustrated in life

and committed suicide and absolutely there is no iota of

proof on record for the alleged harassment. Therefore,

appellant has to be acquitted.

8. He also pointed out that there is no previous

police complaint and alleged panchayatdars and the

independent witnesses have turned hostile to the case of

the prosecution which exposes hollowness in the case of

the prosecution and sought for allowing the appeal.

9. Alternatively, Sri Shivanand Pattanshetti

contended that the sentence passed by the Trial Court is

excess and resulting in harsh to the accused and therefore,

sought for modification of the sentence.

10. Per contra, learned High Court Government

Pleader supports the impugned judgment by contending

that the incident has occurred within seven years of

marriage in the house of the accused and therefore,

prosecution enjoys the presumption under Section 113A of

the Indian Evidence Act and there is no contra evidence

placed by the accused on record and therefore the learned

Trial Judge is justified in appreciating the evidence placed

by the prosecution and sought for dismissal of the appeal.

11. He further contended that the material evidence

on record clearly indicate the harassment imparted to the

deceased by the accused and demand made by the

accused resulting in driving the deceased to commit

suicide and therefore all ingredients to attract the offence

under Section 107 of IPC has been established by the

prosecution by placing cogent and convincing evidence on

record and therefore, sought for dismissal of the appeal.

12. Insofar as an alternate submission is concerned,

learned High Court Government Pleader contended that

having regard to the attending facts and circumstances of

the case and in the absence of any mitigating

circumstances placed by the appellant, the order of

sentence passed by the Trial Judge is just and proper and

therefore, sought for dismissal of the appeal in toto.

13. In view of rival contentions, the following points

would arise for consideration:

(i) Whether the prosecution has successfully

established the offences alleged against the

accused beyond all reasonable doubt?

(ii) Whether the impugned judgment is

suffering from legal infirmity or perversity and

thus calls for interference?

(iii) Whether the sentence is excessive?

14. In the case on hand, the accused having

married the deceased in the year 2008 is not in dispute.

Admittedly, the couple did not have any issues from the

marriage. They were living separately in a shed in the

garden land belonging to the accused. In the complaint,

there is a specific averment that accused used to demand

money from the complainant on number of occasions and

the same was met by the complainant on five or six

occasions to the tune of Rs.5 to 6 lakhs and gold to the

tune of 8 tolas. When the matter stood thus, he received

the information from the village of the accused on

13.12.2014 at about 3.30 p.m. when he was taking his

lunch, by Sharanabasappa intimating that Geeta @

Lalitabai committed suicide by hanging. The complaint

averments as referred to supra are reiterated by the father

of the deceased who has been examined as PW-1 with

graphic details in his examination-in-chief. In his cross-

examination, it is elicited that he does not know how to

write and read Kannada language. However, except

getting such an admission, the other suggestions made to

him that the accused has been falsely implicated in the

case is denied by PW-1. It is no doubt admitted that he

has not given any document to show that he has paid Rs.5

to 6 lakh and 8 tolas of gold to the accused.

15. PW-2 is mother of the deceased and she has

also supported the case of the prosecution in line with PW-

1. In her cross-examination also there is no useful

material elicited except an admission that no complaint

was lodged with the police on earlier occasions when

accused has ill-treated the deceased.

16. PW-3 Sharanabasappa is the relative of the

complainant. He has supported the case of the

prosecution by deposing in line with the examination-in-

chief of PW-1. He has received the telephone call on

12.02.2014 that accused was harassing deceased. In his

cross-examination, it is elicited that he was in service at

the time of incident and Bomman Jogi is situated about 24

to 25 kms from Sindagi. He has admitted that he has not

participated in panchayat that was convened earlier to the

incident. He has stated that on the date of incident he got

the information around 6.00 p.m. He denied having given

false evidence to help the complainant.

17. PW-4 Parameshwar is a friend of PW-1. He

deposed before the court about the marriage of deceased

with the accused and the harassment that was imparted by

the accused to the deceased. On the date of incident at

about 3.30 p.m. he heard the voice of people crying in the

house of the complainant and he visited the house of the

complainant and came to know about the incident. In his

cross-examination no useful material is elicited.

18. PW-5 and PW-6 are the mahazar witnesses to

Ex.P4. They did not support the case of the prosecution.

PW-7 Iranna Kallappa Muradi is the resident of Bomman

Jogi village. He deposed that he is acquainted with the

accused and deceased. He did not support the case of the

prosecution and therefore, he has been treated as hostile

witness. Mallikarjun Panchayya Yelakati is examined as

PW-8. He has deposed before the court about the

acquaintance of the accused and deceased. He also did

not support the case of the prosecution further and then

he has been treated as hostile. So also Sharanabasu K.

Muradi who has been examined as PW-9 and Mallamma

Siddappa Muradi who has been examined as PW-10 did not

support the case of the prosecution.

19. PSI who registered the case and conducted

mahazar is examined as PW-11 whose evidence is formal

in nature. The Tahasildar who conducted the inquest

mahazar is examined as PW-12 and his evidence is also

formal in nature. Further, Investigating Officer is

examined as PW-13 who deposed before the court about

the completion of the investigation and filing of the charge

sheet against the accused.

20. The learned counsel for the appellant sought for

re-appreciation of the above evidence on record.

21. In the case on hand, since the marriage is not in

dispute and the date of the incident being 13.02.2014,

which has occurred within seven years of the marriage, the

prosecution enjoys the presumption as is found in Section

113A of the Indian Evidence Act.

22. The learned Trial Judge while appreciating the

material evidence on record in paragraph-11 onwards has

held as under:

"11. The learned Public Prosecutor referring to the oral and documentary evidence on record submits that though the pancha witnesses are turned hostile and though the PW.7 to PW.9 are partly turned hostile but the evidence of PW.1 to PW.4 and the remaining evidence on record proves the guilt of the accused. The learned Public Prosecutor submits that the evidence on record corroborates the prosecution version that within 7 years from marriage of deceased Geeta with the accused, the wife of accused deceased Geeta has committed suicide by hanging herself in the house of the accused, because, accused was harassing and subjecting his wife to cruelty and because of such cruelty and demand of the accused forcing the deceased to bring Rs.2,00,000/- from her parents house and that he want to marry another lady as no children are born out of their wed-lock inspite of 6 years period from marriage, proves the abatement of the accused, for the deceased to commit suicide. The learned Public Prosecutor submits that where the Geeta being legally wedded wife of the accused has died within 7 years because of his cruelty as aforesaid, under the circumstances, as per the provisions contemplated U/Sec. 113A of the Indian evidence Act, statutory resumption is liable to be drawn against the accused. Therefore, the learned Public Prosecutor prays to convict the accused for the offences punishable U/Secs. 498A and 306 of IPC. The learned Public Prosecutor in support of the argument have drawn the attention of the court to Section 498(A) of IPC, Section 113(A) of Indian Evidence Act and Section 306 of IPC, which reads as under:

       498-A.   Husband   or    relative          of
husband    of a   woman  subjecting    her        to

cruelty:- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall

also be liable to fine.

Explanation;- For the purpose of this section, "cruelty" means -

(a)    any   willful  conduct      which    is    of
such a nature as is likely to drive the
woman     to  commit    suicide    or    to    cause

grave injury or danger to life, limb or health (whether mental or physical of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

*****

113-A. Presumption as to abetment of suicide by a married woman .- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

                       ******

306.   Abetment  of     suicide.-   If  any
person  commits  suicide,    whoever   abets

the commission of such suicide, shall be

punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Per-contra, Sri. BMB learned counsel for the defence submits that PW.1 and PW.2 during their evidence made improvements and there are material contradictions in the oral and documentary evidence let in by the prosecution. Sri. BMB learned counsel for the defence submits that the PW.1 categorically admits that the accused is having 8 acres irrigated land, under the circumstances, there was no need for the accused to subject his wife Geeta to cruelty forcing her to bring Rs.2,00,000/- from her parents house to meet expenses of his intending alleged second marriage, much-less, as alleged by the prosecution, as accused was/is having enough income from the irrigated land. The learned counsel further submitsthat prosecution has not proved the recovery ofMO.1, under Ex.P.4 panchanama, as pancha witnesses are turned hostile, as also the PW.7 toPW.10 have not supported the case of prosecution. The learned counsel submit that the contradictory version of PW.1 to PW.4 shall not be the ground toconvict the accused for the offences punishable U/Secs. 498(A) and 306 of IPC, as the evidence on record is not corroborating and proving the case ofthe prosecution. Sri. BMB submits that the accused is an innocent as he has not committed any offence, since deceased Geeta has committed suicide, as no issues born out of their wedlock, inspite of lapse of 6 years from the date of marriage and not for the cruelty alleged to have been meted out to the deceased by the accused and there is no evidence to prove motive and intention on the part of the accused to subject his wife to cruelty and to abate her suicide but the

PW.1 and her family members at the instance of ill- wishers of the accused have falsely implicated the accused in the alleged offences, hence prayed to acquit the accused.

11. The Ex.P.1 is a complaint dated 13.02.2014 lodged by the PW.1 Dashrath in Devar-Hipparagi Police Station. The Ex.P.1(a) is the signature of the PW.1. The Ex.P.1(b) is the signature of the PW.11. The evidence of PW.11 that PW.1 did lodge the complaint marked at Ex.P.1 against the accused is corroborated by the evidence of PW.11, then Rtd. PSI of Devar-Hipparagi Police Station, who did received the Ex.P.1 on 13.02.2014 at 11.00 p.m., while he was working as SHO in Devar-Hipparagi Police Station. The Ex.P.12 is the FIR in Cr.No.15/2014 of Devar-Hipparagi Police Station, registered by the PW.11 against the accused for the offences punishable U/Secs. 498(A) and 306 of IPC, on the basis of Ex.P.1. As already discussed above, the Ex.P.2 is an inquest panchanama dated: 14.02.2014 of the dead body of the deceased, drawn in the mortuary room of Govt. Hospital, Sindagi, in the presence of panchas. This apart the PW.12 Sri. A.V.Shashtri, then Rtd.

Tahasildar and TEM, Sindagi has categorically stated in his evidence that on written requisition of the police, on 14.02.2014, he by visiting the Govt. Hospital, Sindagi, in the presence of CW.1 and CW.2 panchas, drawn the Ex.P.2 panchanama. The PW.11 categorically stated that he after receipt of Ex.P.1, registered Ex.P.12 FIR, visited the spot, through HC No.707 of Devar-Hipparagi Police Station, shifted the dead body of the deceased to Govt. Hospital, Sindagi and he submitted the written requisition before the Tahasildar, Sindagi to conduct the inquest panchanama of the dead body of the deceased. Ex.P.11 is the PM report of dead body of the deceased Geeta conducted on 14.02.2014 in the Govt. Hospital, Sindagi. This Ex.P.11 PM report is marked by the consent of the defence and the prosecution. The Ex.P.11 PM report evidences that as per the opinion of the Doctors, cause of death of the deceased is due to asphyxia, as result of hanging and time since death before PM examination is stated as 6-12 hours. The

Ex.P.11 PM report categorically evidences that there was a ligature mark in the neck of the deceased Geeta. This documentary evidence, coupled with the oral evidence of PW.1 to PW.4, PW.7 to PW.10 and PW.11 to PW.13 corroborates the prosecution version that the deceased Geeta wife of the accused had committed suicide by hanging in the house of the accused, on receipt of massage of suicide of the deceased Geeta, parents of the deceased Geeta and the elders rushed to the house of the accused, saw the dead body of the deceased, later on PW.1 lodge the complaint against the accused in Devar-Hipparagi Police Station, consequently, during investigation police following the procedure got conducted the inquest of the dead body of the deceased as per Ex.P.2 inquest panchanama and got conducted the PM examination of the dead body of the deceased in Govt. Hospital, Sindagi marked at Ex.P.11. The PW.13 deposed that he has received this Ex.P.11 PM report from CW.26 on 05.04.2014. There is no dispute that PW.13 received this Ex.P.11 PM during investigation. The evidence of all these witnesses also corroborates the case of the prosecution that there was ligature mark in the neck of the deceased. Though the PW.1 and PW.2 in their chief-examination have stated that they saw the hole turn into brown colour, in the neck of deceased, shall not be considered as the improvement, much-less, as submitted by the learned counsel for the defence, as these PW.1 and PW.2 are the villagers and saw the blue colored ligature mark in the neck of the deceased, for which they are terming it as hole in brown color. The Ex.P.4 is the spot panchanama. The PW.5 and PW.6 who are the panchas for this Ex.P.4 have turned hostile. The prosecution cross-examined these witnesses treating as hostile but nothing has been elicited from their mouth to help the case of the prosecution. The PW.5 and PW.6 identified their signatures on Ex.P.4, same are marked at Ex.P.4(a) and Ex.P.4(b). These PW.5 and PW.6 denied the fact that photos marked at Ex.P.5 and

Ex.P.6 are taken during panchanama but the PW.13 who is the investigating officer has categorically stated that he by visiting the spot in the presence of PW.5 and PW.6 has conducted the spot panchanama and of the spot shown by CW.23, which was situated in the house of the accused, drawing Ex.P.4 panchanama and MO.1 rope is recovered during panchanama. The PW.13 also stated that Ex.P.5 and Ex.P.6 photos are taken during spot panchanama. Though the PW.5 and PW.6 turned hostile but there is no reason to disbelieve or discard the evidence of PW.13, IO that the MO.1 rope is recovered during Ex.P.4 panchanama in the presence of panchas PW.5 and PW.6. The PW.13 identified his signature on Ex.P.4, same is marked at Ex.P.4(c). Under the circumstances, though the PW.5 and PW.6 turned hostile but in view of the evidence of PW.13, coupled with Ex.P.4 to Ex.P.6 and MO.1 there is no reason to disbelieve or discard the evidence of PW.13 that Ex.P.4 is drawn on the spot in the presence of panchas and MO.1 rope is recovered and the Ex.P.5 and Ex.P.6 photos are taken during panchanama.

12. The PW.1 Dashrath during the cross- examination deposed that he cannot read and write in Kannada language. He deposed that as per his oral instructions, police have written the contents of Ex.P.1 complaint. The Ex.P.1 evidences that one Srishail S/o Mallappa Khedagi is the scribe of Ex.P.1 complaint. The evidence of PW.11 is that PW.1 did file the written complaint. The oral evidence of PW.1 and PW.11 is contrary to the contents of Ex.P.1 to the effect that as to whether the PW.1 did lodge the written complaint or police have written the contents of complaint as per his instructions, as deposed by the PW.1. The PW.2 Mahadevi in the chief-examination has stated that she did not give statement before the Tahasildar but Tahasildar have taken her signature. The prosecution treated the PW.2 as hostile and cross- examined her to the extent of statement given by

her before the PW.12 Tahasildar. The PW.2 during cross-examination by the prosecution denied the fact of giving statement before the Tahasildar, Sindagi as read-over to her before the court, same is marked at Ex.P.3. The Ex.P.3 is a statement dated 14.02.2014 given by the PW.2 before the PW.12 Tahasildar. The PW.12 Talasildar in the chief-examination has stated that the PW.2 did give the statement as per Ex.P.3. The PW.12 identified his signature on Ex.P.3, same is marked at Ex.P.3(a). Though the PW.2 is turned hostile to the extent of this Ex.P.3 but her evidence, in remaining aspect, is corroborating the version of the prosecution story. Therefore, this piece of contrary evidence given by the PW.2, on Ex.P.3, has no much bearing on the case of the prosecution. As already discussed above, the PW.1 and PW.2 have stated that the deceased Geeta has committed suicide within 6 years of her marriage with accused but whereas PW.3 and PW.4 stated that 8 years ago, the marriage of the deceased Geeta was solemnized with the accused. Admittedly, the PW.3 and PW.4 have deposed before the curt on 19.02.2016 and 21.04.2016 respectively and the evidence of said witnesses deposed with regard to the marriage of the deceased Geeta with accused 8 years earlier is from the date of their giving evidence before the court. Admittedly, the incident has occurred on 13.02.2014, under the circumstances, if the evidence of PW.3 and PW.4 is considered, their evidence also corroborate the prosecution version that the deceased Geeta committed suicide, within 6 years from the date of her marriage. The PW.7 to PW.10 deposing before the court on 08.07.2016 stated that 2 years ago the deceased Geeta has committed suicide by hanging herself in the house of accused. This piece of evidence of these witnesses also evidences that incident was occurred 2 years prior to their giving evidence before the court on 08.07.2016, which also evidences that the deceased Geeta has committed suicide within 6 years from the date of her

marriage. The PW.1 to PW.3 in their cross- examination have deposed that they did not file the complaint against the accused earlier to the complaint Ex.P.1 lodge by the PW.1 with regard to the accused, subjecting the deceased Geeta to cruelty, demanding money or gold. This piece of evidence of these PW.1 to PW.3 has no much bearing on the case of the prosecution for the reason that it is the case of the prosecution as well the evidence of PW.1 to PW.3, earlier to filing Ex.P.1 complaint they did got advise the accused through elderly persons, under the circumstances, considering the relationship of accused with the deceased the possibility of not lodging the complaint against the accused earlier to the incident of his alleged cruelty to the deceased cannot be over ruled. The PWs.1, 2, 7, and 8 during cross- examination deposed that on the day of incident there was a house warming ceremony of newly built house of CW.19 Karabasayya at a distance of 200 feet from the house of accused. It is also in the evidence of PW.1 to PW.4 that surrounding the house of accused there are residential houses. Sri. BMB learned counsel for the accused referring to these pieces of oral evidence of the witnesses submitted that if at all the incident had occurred as alleged by the prosecution, then the surrounding people must saw the incident. The PW.10 Mallamma is a witness who saw at the first instance of the deceased Geeta in a hanging state, in the house of accused and looking to the same, she raised hue and cry, consequently, the PW.9 Sharanbasu, CW.22 Gollalappa and CW.23 Siddayya, rushed to the house of the accused, brought down the dead body of the deceased from the hanging position, untying the noose and kept the dead body of the deceased on the cot, in-front of house of accused but PW.9 and PW.10 denied these facts. The PW.7 and PW.8 have stated in their chief-examination that since marriage deceased Geeta and the accused were in cordial terms. These witnesses have not supported the case of the prosecution, so far as the deceased

Geeta committing the suicide because of the cruelty of the accused and consequent upon his abatement deceased Geeta committing the suicide, much-less, as alleged by the prosecution. The Ex.P.7, Ex.P.8, Ex.P.9 and Ex.P.10 are the statements of the PWs.7, 8, 9 and 10 respectively. The prosecution cross-examined these witnesses treating as hostile but nothing has been elicited from their mouth to help the prosecution. Admittedly, these PW.7 and PW.8 as also the PW.5 and PW.6 panchas are the residents Bommanjogi village, under the circumstances, the possibility of these witnesses not supporting the prosecution case is probable. Though the PW.7 to PW.10 turned hostile but the evidence of the said witnesses to the extent of supporting the case of prosecution shall be considered to adjudicate the guilt of the accused for the offences charged against him. As already discussed above, the evidence of PW.7 to PW.10 evidences that the deceased Geeta was a legally wedded wife of the accused and she committed suicide by hanging in the house of the accused. Therefore, there is no much force in the submission of the learned counsel for the defence that surrounding witnesses have not been cited as witness and not supported the case of the prosecution. Sri. BMB learned counsel for the defence during the course of argument submits that the fact of giving gold, silver and money to the accused, much-less, as deposed by the PW.1 and PW.2 in their evidence has not been alleged in the Ex.P.1 complaint and to that extent, these witnesses have made improvements, hence their evidence cannot be believed. Though the PW.1 and PW.2 have deposed with regard to giving money, gold and silver to the accused after marriage to satisfy him of his demand and to see that deceased Geeta would be in happy with the accused but this fact of not mentioning in the Ex.P.1 complaint has no much consequences on the case of the prosecution for the reason that it is not the case of prosecution that the parents of the deceased Geeta did give gold, silver and money after marriage, as

demanded by the accused but the specific case of the prosecution is that as no children were born out of the wedlock between the deceased Geeta and the accused, hence the accused was harassing and subjecting his wife to physical and mental cruelty, forcing her to bring Rs.2,00,000/- from her parents house, to meet the second marriage expenses, which he intended to marry with another lady. The PW.1 to PW.4 categorically deposed in their evidence with regard to the accused subjecting the deceased Geeta to physical and mental cruelty forcing her to bring Rs.2,00,000/- from her parents, as he intended to marry another lady, since no issues have been born out of their wedlock. The PW.1 to PW.4 during the cross examination categorically denied the suggestion that the deceased Geeta being up-set, worried and perturbed has committed herself suicide, as no children were born out of wedlock between her and accused, even after lapse of 6 years from the date of marriage and she has not committed the suicide because of the cruelty of the accused, as stated by them. The appreciation of the oral and documentary evidence on record, though there are minor contradictions but same have no much bearing and consequences on the case of the prosecution in proving the guilt of the accused for the offences charged against him, since the said contradictions are minor contradictions. The evidence of PW.1 to PW.4 and PW.7 to PW.10 coupled with Ex.P.1 corroborated by the evidence of PW.11 to PW.13, Ex.P.11, Ex.P.2 evidences that deceased Geeta being legally wedded wife of accused has committed suicide within 7 years from the date of her marriage with the accused, such suicide of deceased Geeta is because of the accused subjecting her to physical and mental cruelty demanding her to bring Rs.2,00,000/- from her parents house. The evidence on record proves that earlier to the incident, on two occasions the PW.1, PW.2, PW.4 along-with elderly persons did advise the accused not to ill-treat and subject the deceased to cruelty. Though the PW.1, PW.2 are

parents of the deceased Geeta, PW.3 is an elder brother of PW.1 and PW.4 happens to be the villagers of PW.1 to PW.3, then also they cannot be termed as partisan witnesses as PW.1 and PW.2 being father and mother and PW.3 being elder brother of PW.1, are expected to know naturally about the cruelty meted out to the deceased Geeta by the accused, demanding her to bring Rs.2,00,000/- and also saying her frequently that he want to marry another lady as no children born out of their wedlock. Moreover, PW.4 one of the elderly persons who did advise the accused earlier to the incident with regard to the cruelty of the accused to the deceased is corroborated by the evidence of PW.1 to PW.3, under the circumstances of the case, his evidence is trustworthy to be believed. Sri. BMB learned counsel for the defence submits that PW.1 and PW.2 deposed with regard to the son of the PW.1 and PW.2 going over to the house of the accused to bring her sister deceased Geeta to her parents house to participate in the fair of Goddess Laxmi, which was scheduled to be held in their village and the accused having sent the deceased Geeta with her brother, on the way, called them back through phone and assaulted her but the said fact has not been mentioned in the Ex.P.1 complaint. Admittedly, the PW.1 and PW.2 though deposed in that regard have clearly admitted that said fact is not mentioned in the Ex.P.1 complaint. It is pertinent to note that this fact is mentioned in Ex.P.3 statement of PW.2 given before the PW.12 TEM and Tahasildar of Sindagi. Under the circumstances, not mentioning of this fact in the Ex.P.1 complaint is no much consequence on the case of prosecution. The appreciation of the oral and documentary evidence on record proves that since 3-4 years prior to 13.02.2014, the accused subjected his wife deceased Geeta, to physical and mental cruelty, demanding and forcing her to bring Rs.2,00,000/- cash from her parents house, as he intended to marry another lady, since no children are born out of their wedlock. At the same time, the evidence on

record proves that earlier to 13.02.2014 PW.1, PW.2, PW.4 and other elderly persons advised the accused not to ill-treat and subject the deceased Geeta to cruelty. The evidence on record proves that within 7 years from the date of marriage of the deceased Geeta with the accused, because of the physical and mental cruelty of the accused, deceased Geeta has committed suicide. Under the circumstances, the presumptions available U/Sec.113-A of the Evidence Act can safely be drawn against the accused. As submitted by the learned Public Prosecutor the presumption U/Sec. 113-A of Evidence Act, is not absolute presumption but it is rebuttal evidence. Admittedly, the defence has not adduced evidence on its behalf and though the PW.1 to PW.4, PW.11 to PW.13 cross-examined in length but nothing has been elicited from their mouth to disbelieve or discard their evidence. Therefore, it is evident that there is no rebuttal evidence to dislodge the evidence let in by the prosecution to prove the act of the accused subjecting the deceased Geeta to physical and mental cruelty, consequently, Geeta committing suicide because of such deliberate act and abatement of the accused within 7 years from the date of her marriage with the accused, definitely available in-favour of the prosecution and the presumption as provided U/Sec. 113-A of Act, is liable to be drawn against the accused. The evidence on record proves that the accused by his acts subjected the deceased Geeta to physical and mental cruelty, which stimulated and forced her to commit suicide and not because of her worry or perturbed or upset because of not bearing the children, even after lapse of 6 years marriage with accused, much-less, as contended by the defence. The acts, attitude, instigation and provocation of the accused itself are the reasons for the Geeta to commit suicide. The evidence on record proves beyond reasonable doubt that because of the acts and attitude of the accused, provoked, stimulated the deceased to commit suicide. The evidence on record proves that the accused has instigated and

abated the deceased Geeta to commit suicide through his act and attitude. The evidence on record demonstrate the mens rea and actus reus on the part of the accused in committing the offences punishable U/Secs. 498(A) & 306 of IPC. Therefore, the submission of the learned counsel for the defence that the accused is falsely implicated in this case, much-less, as submitted by the learned counsel for the defence cannot be accepted. Therefore, there is no hesitation to hold that the prosecution has proved the guilt of the accused of his committing the offences punishable U/Secs. 498(A) and 306 of IPC charged against him, as the prosecution has brought on record the corroborative evidence in this regard, as discussed above. Therefore, there is no hesitation to hold that the accused is liable to be convicted for the offences punishable U/Secs. 498A and 306 of IPC. Hence, I hold these points No.1 & 2 in the affirmative for consideration.

13. Point No.3: In view of my finding, on the aforementioned points No.1 & 2, I proceed to pass the following:"

23. Admittedly, since the incident has occurred in

the matrimonial house, accused is bound to explain how

the incident has occurred in his house and what made

Geeta @ Lalita Bai to commit suicide in his house by

hanging.

24. The oral testimony of PW-1 clearly indicate that

earlier to the incident also there were demands made by

the accused and the same has been met by the

complainant. It is pertinent to note that at the time of

recording the accused statement to question No.39, the

accused has stated that he has got evidence to show that

why deceased Geeta has committed suicide. Therefore,

accused is aware of his responsibility to rebut the

presumption available to the prosecution. However, on

record there is no such evidence placed by the accused nor

any written submissions are filed by the accused as

contemplated under Section 313 sub-clause (5) of Cr.P.C.

In the absence of any previous enmity nurtured by the

parents of the deceased, why would they falsely implicate

the accused in this case is a question that remains

unanswered.

25. Further, even on the date of incident, the

complainant was very much present in Bomman Jogi

village as he had pacified the differences a day earlier to

the incident and stayed in Bomman Jogi village in his

younger brother's house. Even on the date of incident in

the morning hours before leaving to his native village,

complainant had called the accused and told him to lead a

proper life and not to go behind money. For his utter

surprise at about 3.30 p.m. he has received the

information from Sharnabasppa that his daughter has

committed suicide by hanging.

26. In the light of the above factual aspects, it is for

the accused to explain as to what made the deceased to

commit suicide in the house of the accused by hanging. If

at all there is no harassment, why would the deceased

commit suicide that too in the house of the accused is a

question that remains unanswered by the defence.

27. Under these circumstances, when a positive

evidence is placed by the prosecution and has discharged

its burden cast on it, it was for the accused to rebut the

same at least by placing some plausible material on

record.

28. As such, the finding recorded by the Trial Judge,

on re-appreciating all the material evidence on record, this

Court is of the considered opinion that the same is not

suffering from any legal infirmity or perversity.

Accordingly, point Nos.1 and 2 are answered in the

negative.

Regarding Point No.3:

29. The Trial Judge has passed the order of

sentence as referred to supra in the facts and

circumstances of the case. In the absence of any

mitigating circumstances placed on record, this Court is of

the considered opinion that no case is made out to show

leniency to the accused. Accordingly, this Court is of the

considered opinion that the sentence ordered by the Trial

Judge is appropriate in the facts and circumstances of the

present case. Hence, point No.3 is answered in the

negative and following order is passed:

ORDER

Appeal sans merit and is hereby dismissed.

Accused is granted time till 15.02.2022 to surrender

before the Trial Judge for serving the remaining part of the

sentence.

Ordered accordingly.

Sd/-

JUDGE

swk