State By Hiriadka vs Ananda Naika
2023 Latest Caselaw 141 Kant

                                                      -1-
                                                            CRL.A No. 150 of 2012




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 3RD DAY OF JANUARY, 2023

                                                   BEFORE
                                    THE HON'BLE MR JUSTICE P.N.DESAI
                                  CRIMINAL APPEAL NO. 150 OF 2012 (A)
                      BETWEEN:

                      STATE BY HIRIADKA
                      POLICE STATION,
                      UDUPI DISTRICT.

                                                                       ...APPELLANT

                      (BY SMT. K.P. YASHODHA.,HCGP)

                      AND:

                      1.    ANANDA NAIKA
Digitally signed by         S/O LATE SANJIVA NAIKA,
NAGARATHNA M
Location: HIGH              AGED ABOUT 44 YEARS,
COURT OF
KARNATAKA                   ALUGGELU MANE,
                            ANJAR VILLAGE,
                            UDUPI TALUK.

                      2.    RAGHAVENDRA @ RAGHU NAIKA,
                            S/O LATE SANJIVA NAIKA,
                            AGED ABOUT 38 YEARS,
                            ALUGGELU MANE,
                            ANJAR VILLAGE,
                            UDUPI TALUK.

                      3.    SMT. TULASI,
                            W/O RAGHAVENDRA @
                            RAGHU NAIKA,
                            AGED ABOUT 33 YEARS,
                            ALUGGELU MANE,
                            ANJAR VILLAGE,
                                -2-
                                            CRL.A No. 150 of 2012




     UDUPI TALUK.

4.   SMT CHAITHRA
     W/O SUNDRA NAIKA,
     AGED ABOUT 35 YEARS,
     ANJAR VILLAGE,
     UDUPI TALUK.

5.   SMT. KALYANI,
     W/O LATE SANJIVA NAIKA,
     AGED ABOUT 65 YEARS,
     ALUGGELU MANE,
     ANJAR VILLAGE,
     UDUPI TALUK.

                                                    ...RESPONDENTS

(BY SRI. UMESH P.B FOR SRI. R.B. DESHPANDE.,ADVOCATES)

       THIS APPEAL IS FILED U/S.378(1)&(3) CR.P.C BY THE S.P.P.
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 21.09.2011 PASSED BY THE P.O.,
F.T.C., UDUPI IN S.C. NO.92/2010 - ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 498A AND 306 R/W SEC.34 OF IPC.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                           JUDGMENT

This appeal is filed by the State challenging the judgment

of acquittal dated 21.09.2011 passed by Presiding Officer, Fast

Tract Court, Udupi in Sessions Case No.92/2010, wherein the

respondents/accused were acquitted for the offences

punishable under Sections 498-A and 306 of Indian Penal Code,

1860,(for short hereinafter referred as 'IPC') r/w 34 IPC.

CRL.A No. 150 of 2012

2. The brief case of the prosecution is that deceased

Chandravathi was married to accused No.1 on 25.10.2009. It

is further contended that after marriage, deceased went

alongwith her husband to Mumbai and immediately after one

month, accused No.1 sent her to his native place Aluggelu

Mane, Anjar Village, Udupi. She was residing in her husband's

house. It is further alleged that accused Nos.2 to 5 also caused

cruelty on her by not providing food and not providing her daily

expenses. On account of such cruelty, deceased Chandravathi

committed suicide between 10.00 p.m. on 20.05.2010 night

and 07.15 a.m. on 30.05.2010 by hanging herself to a rafter in

the bedroom with the help of a nylon rope in the house of her

husband. It is also further alleged that she has written on her

left hand that her husband, one Raghu, Tulasi and Chaitra are

responsible for her death. In this regard, PW-1 who is the

brother of deceased lodged a complaint as per Ex-P1 to the

jurisdictional police. Thereafter, the Investigating Officer took

up the investigation, conducted spot panchanama and inquest

panchanama, recorded the statement of the witnesses and

CRL.A No. 150 of 2012

after completing the investigation, filed the charge sheet

against the accused for the offences stated above. Thereafter,

the learned Sessions Judge framed the charge against the

accused.

3. In order to prove the charge, the prosecution in all

examined 12 witnesses as PW-1 to PW-12 and got marked 22

documents as Exs-P1 to P22 and got identified nine material

objects as M.O-1 to M.O-9. Thereafter, the statements of

accused as required under Section 313 of Cr.P.C were recorded.

The accused denied the circumstances appearing against them

in the evidence of the prosecution witnesses. The accused has

led defence evidence and examined Dr. Mahendra Savanth as

DW-1 and got marked totally six documents as Exs-D1 to D6.

After hearing the arguments, the learned Sessions Judge

acquitted the accused. Hence, this appeal is filed by the State.

4. Heard Smt. K.P. Yashoda, learned HCGP for appellant-

State and Sri. B.S. Umesh, learned counsel for Sri. R.B.

Deshpande for respondents-accused.

CRL.A No. 150 of 2012

5. Learned HCGP for the appellant-State argued that the

judgment of the acquittal passed by the learned Sessions Judge

is contrary to the evidence on record. Learned HCGP has

argued that the death of the deceased Chandravathi has taken

place within seven years of her marriage. Therefore, there is

presumption under section 113-A of the Indian Evidence Act as

the death is not a natural death. PW-1 is the brother of

deceased. He has supported the prosecution case. PW-2 is the

wife of PW-1 and PW-6 is the mother of deceased

Chandravathi. They have stated about the cruelty meted out to

deceased Chandravathi by the accused. The other witnesses

examined by the prosecution have also supported regarding

holding of panchayat. The post-mortem report clearly indicates

that the death is due to hanging. Learned Sessions Judge

mainly relying on the evidence of DW-1 Doctor has acquitted

the accused which is not tenable. There is nothing to show that

the deceased was suffering from any disease, but there is

evidence to show that the deceased was sent out from the

house of her husband at Mumbai and she was residing in the

house of her husband at Anjar village, Udupi Taluk and she

CRL.A No. 150 of 2012

committed suicide in her matrimonial house. Therefore, defence

of the accused is not tenable. On the other hand, there is

evidence to show that the deceased was subjected to cruelty

by accused which led her to commit suicide. Therefore, learned

HCGP prayed to set-aside the judgment of acquittal and to

convict the accused as per law.

6. Against this, learned counsel for the respondents

accused argued that Ex-P1 complaint does not disclose any

allegation of cruelty or specific act of cruelty. On the other

hand, there is delay in recording the statement of relatives by

the Investigating Officer. The statement of witnesses were

recorded after 10 days of the incident. Learned counsel argued

that the deceased and her husband have not lived together

even for a month. The accused have led defence evidence of

the Doctor who has stated that the deceased was suffering

from mental disorder and with a specific disease termed

'Schizophrenia' and relevant medical evidence was also

produced. Therefore, it is due to such behaviour and mental

disorder, the deceased has committed suicide. The sister of

accused is residing about 15 Kms away from the house of

CRL.A No. 150 of 2012

accused No.1 in the village. No specific instances or particulars

of any cruelty is stated. The evidence is general and vague one.

Therefore, learned Sessions Judge after considering the entire

evidence and relying on the decisions referred by the learned

counsel has rightly acquitted the accused. The judgment is

based on evidence on record and also settled principles

regarding appreciation of evidence in such cases. Therefore,

learned counsel prayed to dismiss the appeal.

7. I have perused the records and also evidence.

8. From the above material, the points that arise for my

consideration is:-

1. Whether the prosecution has proved that the deceased Chandravathi was subjected to cruelty by the conduct of the accused which could drive the deceased to commit suicide or grave injury so as to endanger her life?

2. Whether the respondents abated commission of suicide?

CRL.A No. 150 of 2012

3. Whether the Judgment of Acquittal is perverse, illegal and needs interference by this Appellate Court?

9. The undisputed contentions are that the deceased

Chandravathi committed suicide within one year of her

marriage in her husband's house. The post-mortem report also

indicates that the death of deceased is due to Asphxia as a

result of hanging. So it is clear case of suicide. Now it has to be

seen whether the accused have subjected her to cruelty so as

to drive the deceased to commit suicide. Suicide is self-killing.

In order to attract the offence, there must be clear evidence

made out against the accused, the intention of the accused to

instigate or abate suicide is necessary.

10. The basis constituent of the offence under section

306 IPC is suicidal death or abatement thereto. Therefore, in

order to convict a person under section 306 IPC, there has to

be clear instance to commit the offence. It requires direct or

indirect evidence showing common object and act must be

intended such that a person would commit suicide.

CRL.A No. 150 of 2012

11. In the light of the ingredient of sections 498-A and

306 IPC, I have perused the evidence on record as this Court

being a first appellate court has to re-appreciate the evidence.

12.a. Ex-P1 is the complaint which set criminal law in

motion. In the FIR-Ex-P14, there is no such particulars or

allegations of cruelty made out against the

respondents/accused. It is stated that in the house of her

husband, her mother-in-law, her husband's brother, wife of her

brother-in-law were ill-treating deceased Chandravathi. FIR is

not an encylcopedia and it need not contain details of incidents,

but there must be some allegation of ill-treatment or

harassment by any of the accused.

b. PW1 - Mahabala Naika is the brother of deceased

Chandravathi. In his deposition before the Court, he has also

stated that after marriage, accused No.1 was residing with the

deceased Chandravthi at his Allugelu village for 10 days and

thereafter, he alone went to Mumbai and he took the deceased

to Mumbai in the month of December 2009 and kept her in the

house of one Kushala. The accused No.1 had no independent

house. PW-1 stated that accused No.1 was abusing her in filthy

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CRL.A No. 150 of 2012

language, which he came to know subsequently when deceased

Chandravathi telephoned him. PW1 has stated that in view of

ill-treatment by accused No.1, deceased was not ready to live

with accused No.1 at Mumbai. It is also stated that the

deceased was not provided with food and not allowed to touch

any articles by accused No.1 at Mumbai. Thereafter, she was

sent to her husband's house at Anjaru village. There also,

accused Nos.2 to 5 used to abuse the deceased. This was

informed by the deceased to PW-1 over phone and they

advised the accused. Then accused No.1 promised that they

will look after her well. It is stated in his evidence that on 16th

May 2010 itself, deceased came to their house as there was

marriage of his sister. The deceased informed him that accused

are harassing her. She went back to her husband's house.

Again, she came back to their house on 28th May, 2010. Again,

she went to the husband's village on 29th May 2010. So it is

evident that prior to 15 days of the incident, the deceased was

not residing with her husband or with his family members in

the village. She came to her parents' house and thereafter, it is

only on the previous date of the incident, she went to her

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CRL.A No. 150 of 2012

husband's house. It is also evident from his evidence that

accused No.1 was not present at that time and he came only on

the subsequent date. The funeral also took place in the village

of the accused on next day and it was performed by the

accused themselves. He has also stated that even in

panchayat, noboby has talked anything which could offend his

sister. It is also in his evidence that her another sister's

husband also committed suicide. Her another brother also died

by drowning in the water. He has denied suggestion that

deceased was suffering from mental disorder and due to that,

she committed suicide.

c. PW-2 Mamatha is wife of PW-1; Her evidence shows

that she is only a hearsay witness and she came to know about

accused No.1 abusing her sister-in-law through her husband.

Even she has not disclosed any ill-treatment by husband of the

deceased. She has also not stated what type of ill-treatment or

harassment was given to the deceased.

d. PW3-Shashikala Putran and PW-4-Suresh Kanchan are

the witnesses for Ex-P10 spot panchanama. PW-4 is also

witness for Ex-P11 autopsy report.

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CRL.A No. 150 of 2012

e. PW-5 Pandu G. Naikya is the brother of PW-4. His

evidence also shows that he is a hearsay witness. He has

stated about holding panchayat, but he has not stated what is

the type of ill-treatment and harassment that was meted out

to the deceased. Simply he has stated she was not looked after

well and thereafter, deceased went to her parents' house for

her sister's marriage. Accused No.1, his brother and accused

No.2 also attended that marriage. So his evidence will not help

the prosecution in any way. In the cross-examination, he has

stated he does not know about the mental condition of the

deceased and except the information received, he does not

know the relationship between the deceased and her husband.

So his evidence will not help the prosecution to prove the

ingredients of ill-treatment or cruelty.

f. PW-6 Jalaja Bai is the mother of the deceased. She has

given a different version. She has simply stated that deceased

was given mental cruelty by the accused and deceased was not

provided with food which is not stated by other witnesses. Even

after panchayat, accused promised that they will look after

Chandravathi well, after which, accused No.1 alone went to

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CRL.A No. 150 of 2012

Mumbai. Thereafter, deceased came to their house and after

that she returned to her husband's house and she committed

suicide. She has deposed that the deceased Chandravathi was

taking treatment for some thyroid problem.

g. PW-7 Ananda Naika is another panchayadar who is

also relative of the complainant. He has stated in his cross-

examination that deceased has not made any complaint against

the accused to him. He do not know her mental condition and

she was looked after well. He has seen the deceased only

during the marriage and so it appears that he do not know

anything about the harassment of cruelty on deceased by

accused.

h. PW-10 Prasanna is the Tahsildhar, Udupi who has

stated about the inquest panchanama conducted by him. He

has stated that during the course of investigation, none of the

witnesses had expressed any doubt about the death of the

deceased.

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CRL.A No. 150 of 2012

i. PW-11 Dayanand Hegde is hearsay witness. He has

stated that he do not know about the mental condition of the

deceased.

j. PW-12 Venkappa Naika is the Investigating Officer who

has conducted the investigation and in the cross-examination,

he has stated that he has conducted spot panchanama only on

05.06.2010 and he recorded the statement only on 10.06.2010

and he recorded the statement of other witnesses

subsequently. Therefore, it is evident that there is a long delay

in recording the statements of the witnesses by the

investigating officer. No case dairy is produced to show as to

why there is delay in recording the statements. He has stated

he do not know whether the witnesses have stated that the

writing on the hand of the deceased is that of the deceased

herself. He has also stated it is only accused No.1 who came

from Mumbai and performed the funeral of deceased at about

12.00 p.m. So the conduct of the accused also supports the

defence. He has not enquired as to where accused No.3 is

residing. He never enquired as to whether the deceased has

any mobile phone. Nothing is produced.

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CRL.A No. 150 of 2012

13. Therefore, on reading of the entire evidence of the

prosecution, it is evident that the evidence of the prosecution

regarding alleged harassment or mental cruelty is vague one.

There is no allegation about the physical cruelty. What is trying

to be made out by the prosecution is mental cruelty. Accused

No.1 and deceased lived hardly together for a month. Accused

No.3 is residing separately. Neighbours of the house of accused

No.1 in the village were not examined. Even the evidence given

by the prosecution witnesses shows that there are no particular

instances or the act which could be termed as cruelty or mental

cruelty so as to drive a woman to commit suicide. Cruelty must

be of such type and it should be immediate cause for

committing suicide. That cruelty should drive a person to

commit suicide. Admittedly, deceased came to her parents'

house on 16.05.2010 for the marriage of her younger sister.

She stayed there for few days and went back to her husband's

house. Again, she came back to her parents' house on

28.05.2010 and returned only on 29.05.2010. So there is no

question of either accused No.1 or other accused harassing or

ill-treating her or abating her to commit suicide. The nature of

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CRL.A No. 150 of 2012

ill-treatment or harassment particulars are not given. The

entire evidence is vague and general one.

14. It is evident that the learned Sessions Judge has

arrived at a judgment of acquittal by referring to depositions.

The learned Sessions Judge has referred to the decisions of the

Hon'ble Supreme Court and considered the evidence of the

Doctor. The defence evidence of DW-1-Doctor Mahendra Y.

Savantha adduced by the prosecution shows that accused No.1

took the deceased for some treatment with the said Doctor. He

is not a Psychiatrist. On the other hand, his evidence shows

that he is practicing medicine. His cross-examination shows

that he has completed MBBS course. But no records were

produced. He has given some prescription letter which are

marked in the evidence which are at Ex-D3 and Ex-D4. He has

also given bills which are at Ex-D5 and Ex-D6. His evidence

shows that the deceased Chandravathi was suffering from some

kind of mental disorder and she was not able to give proper

answers and it appears that she is physically strong, but she

has lost her thinking capacity and she was not co-operating for

examination. She herself is imagining something and he has

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CRL.A No. 150 of 2012

mentioned the same in the certificate. Ofcourse, that may be

the explanation by the accused.

15. It is settled principles of law that the prosecution has

to prove its case as alleged. The initial burden is on the

prosecution to prove its case beyond all reasonable doubt. If

the evidence of the prosecution is considered, then, their

evidence creates doubt about the alleged cruelty. In the light of

the defence taken by the accused, it is settled principle of law

that benefit of doubt should be given to the accused if there are

two views possible from the prosecution witnesses.

16. Further, it is also settled principles of law that this

Court being a First Appellate Court cannot lightly interfere in

the judgment of the acquittal by the Sessions Court, unless,

said finding is not based on the evidence or the judgment is

perverse which requires interference by this Court.

17. The Hon'ble Supreme Court while dealing with the

power of the appellate court in interfering with the judgment of

acquittal held that unless the judgment of trial court is

perverse, illegal and not based on sound principles regarding

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CRL.A No. 150 of 2012

appreciation of evidence, the appellate court shall not interfere

in the judgment of acquittal. Because the judgment of acquittal

gives double presumption of innocence to the accused.

18. In this regard, the Hon'ble Supreme Court has laid

down the general principles regarding interference, the power

of the appellate Court in an appeal against judgment of

acquittal by the trial court. In the case of Sampat Babso

Kale and Another v. State of Maharashtra [(2019) 4

SCC 739], at para-8, it is held thus:

"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka [(2007) 4 SCC 415], laid down the following principles:-

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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CRL.A No. 150 of 2012

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

 (3)    Various    expressions,   such    as,
"substantial    and   compelling   reasons",
"good and sufficient       grounds",    "very
strong     circumstances",         "distorted

conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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CRL.A No. 150 of 2012

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

19. In view of the principles stated by the Hon'ble

Supreme Court in the decisions referred above and on

re-assessing the entire evidence of prosecution witnesses, I am

of the considered opinion that the prosecution has failed to

prove the guilt of the accused beyond all reasonable doubt.

The learned Sessions judge has considered the entire evidence

meticulously and has come to the conclusion that the

prosecution has failed to prove the guilt of the accused beyond

all reasonable doubt and acquitted the accused by giving

benefit of doubt. I find that the judgment of acquittal passed by

the trial court is neither illegal, perverse, erroneous nor the

judgment has resulted in miscarriage of justice. Absolutely,

there are no grounds to interfere in the judgment of acquittal.

The appeal being devoid of merit is liable to be dismissed.

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CRL.A No. 150 of 2012

Accordingly, I pass the following:

ORDER

1. The appeal filed by the State-appellant under section 378(1) and (3) Cr.P.C. stands dismissed.

2. Consequently, the judgment and order of acquittal dated 21.09.2011 passed by learned Presiding Officer, Fast Track Court, Udupi, in S.C.No.92/2010 against the respondents/accused is hereby confirmed.

3. Bail bond, if any, executed by the accused, the same shall stand cancelled.

4. Office is directed to send back the records to the trial court.

5. No order as to costs.

Sd/-

JUDGE

MN