KU MAR 5/0. CHI KKABORAIAH v. STATE OF KARNATAKA

Judgment

2. SMT. SULOCHANA, W/O. MR. SHIVAKUMAR, AGED 27 YEARS, SMT. JAYAMMA, W/O. LATE MR. MUNIYAPPA, AGED 46 YEARS, BOTH RESIDENTS OF NO.8, 1CROSS, 15T MAIN, II BLOCK, KANTEERAVANAGAR, BANGALORE APPELLANTS (BY SRI. T. NARAYANA GOWDA & PRAMOD, ADV.) AND: STATE OF KARNATAKA BY NAN DINI LAYOUT POLICE, BANGALORE CrrY, THROUGH THE STATE PUBLIC PROSECUTOR, HIGH COURT BUIWINGS, BANG4LORE ...RESPONDENT

(BY SRI. RAJA SUBRAMANYA BHAT, HCGP) THIS CRL. A. FILED U/S. 374(2) CR.P.C. BY THE ADV. FOR THE APPELLANTS AGAINST THE JUDGMENT DATED 29.07.2006 PASSED BY THE CITY FAST TRACK (SESSIONS) IN S.C. NO.834/2005 - (FTC-VI), JUDGE, BANGALORE CITY, -3- CONVICTING THE APPELLANTS! ACCUSED NOS.2 & 3 FOR THE 34 OF IPC AND OFFENCE P/U/S. 306 READ WITH SEC. SENTENCING THE APPELLANTS! ACCUSED NOS.2 & 3 TO UNDERGO R.I. FOR A PERIOD OF 3 YEARS AND TO PAY FINE OF RS.3000/- EACH AND I.D. TO PAY THE FINE. THEY SHALL FURTHER UNDERGO 5.1. FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE P/U/S. 306 READ WITH SEC.34 OF IPC. THESE CRL.APPEALS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Convicted accused are appeal against conviction for offences punishable under Section 306 and 498A r/w.Section 34 of the IPC.

2. Crl.A.No.1598/2006 is by the accused No.1 while Crl.A.No.1531/2006 is by the accused Nos.2 and 3.

3. Heard learned counsel for the appellants and the learned HCGP Sri.Raja Subramanya Bhat appearing for the respondent/State.

4. As the appellants in these two appeals were put to trial together and by the impugned judgment, are found guilty and convicted, these two appeals are taken up together for final disposal. -4-

5. The material allegations on the basis of which the appellants were arraigned, convicted manifest from the case papers are: a) Nagamma was married to one Kumar, appellant in Crl.A.No.1598/2006 according to customs and rites of the community. She entered matrimony after nuptial knot was tied and lived with accused No.1. However after living together a period Kanteeravanagar, the first accused Kumar shifted her to the house of Smt.Jayamma, the third accused. Nagarmma and accused No.1-Kumar were her tenants. b) The accused No.1 Kumar is alleged to have developed intimacy with accused No.2 Sulochana, daughter of the third accused. Accused No.2 Sulochana is said to be married but separated from her husband. Nagamma did not like such illicit relationship which had infuriated the accused. It is alleged, the accused No.1 Kumar joined the accused No.2-Sulochana and her mother Jayamma and continuously perpetrated cruelty on her. Nagamma reported it to her sister PW1 Kamalamma as also to PW3-K.K.Krishnaiah, However, they advised her to -5- go back and live with accused No.1 which she meekly obeyed. Her life did not improve and she faced the same turmoil. c) It is alleged on 23.03.2005, in the morning, there was a quarrel near the public tap between Nagamma and accused Nos.2 and 3. Accused No.1 joined them and harassed and insulted her. She could not endure the insult and committed suicide at 2.30. p.m. hanging herself. d) Report in this regard was submitted by PW1- Kamalamma acting it, PW12-T.Venkatesh registered a case and summoned PW5-Gangadhara, Taluk Executive Magistrate to conduct inquest. The body was subjected to autopsy by PW5-Gangadhara who opined that death of Nagamma was consequent to hanging. On this basis, B.N.Nyamagowda-PW13 filed final report raising charge under Sections 498A and 306 nw. Section 34 of ‘PC. e) The accused were put to trial in which the prosecution has examined in all 13 witnesses and relied on 15 documents and one material object. The accused on their part put up defence of denial simplicitor. -6- f) Accepting the prosecution evidence, the learned trial Judge has convicted them for offences punishable under Sections 498A and 306 with the aid of Section 34 of IPC. Assailing it there are in appeal.

6. I Sri.A.H.Bhagawan Sri.Pramod, learned counsel appearing for the appellants and Sri.Raja Subramanya Bhat, learned HCGP appearing for the respondent/State.

7. It is not in dispute the accused had married Nagamma and they lived in the house of accused No.3 Jayamma as a tenant. According to prosecution, accused No.2 Sulochana was living with accused No.3 and she had developed carnal relationship with accused No.1- Kumar. Accused No.3-Sulochana was proclaiming she would marry accused No.1 and he had also told it to victim Nagamma. To get rid of her, it appears they aggravated the harassment which was beyond her tolerance. The allegation is that accused Nos.1, 2 and 3 joined together to harass the victim with a sole object of deserting her to perform marriage of accused No.1 with accused No.2. -7-

8. The prosecution has relied heavily on the evidence of PW1 Kamalamma, the sister of the deceased who in indicts the accused as those who were responsible for Nagamma’s death. She has alleged physical assault on the victim and illicit affair between accused No.1 and 2. She is not an eyewitness to the incident but she speaks about the quarrel that took place between Nagamma and accused Nos.2 and 3 morning of 23.03.2005 and in the afternoon, the victim Nagamma took the extreme step of committing suicide.

9. PW2-Jayamma is the mother of Nagamma who speaks to the fact that accused No.1 lived with the deceased and has alleged illicit intimacy with accused No.2.

10. CW8-Indira, the sister of Nagamma was cited as the important witnesses as she knew the life pattern of the accused No.1 and the deceased. She speaks about accused No.1 and Nagamma living in the house of accused No.3 for sometime and that she was aware of other fact -8 situation. But the prosecution somehow did not examine her totally relying on the evidence of PW2.

11. PW3-K.K.Krishnaiah is the maternal uncle who also speaks about the marriage of Nagamma with accused No.1, and the demand made by him and other aspects of their life.

12. Be that as it may. Amongst the witnesses, PW1 Kamalamma, PW2-Jayamma, PW3-K.K.Krishnaiah, PW4- K.K.Kempaboraiah are those who knew about the accused and the deceased. They have described how the victim was subjected to cruelty both physically and mentally. Learned trial Judge has accepted their version as bringing out a case for offence under Section 498A as also 306 of the IPC.

13. Learned counsel, Sri A.H.Bhagawan for appellant has assailed conviction on both the counts. His core contention is, though prosecution has paraded several witnesses, amongst them there is no independent witness to support the allegation that accused No.1 had been -9- harassing his wife-Nagamma. PW1-sister and PW3- mother of the deceased were living in the vicinity where the deceased lived, but knew nothing as to what was happening in the life of the accused and his wife. He submits they are proximately related and ought to have known the alleged harassment had the accused caused it. In this regard, he submits prosecution case totally rests on the alleged solitary incident of quarrel between the ls accused-husband, 2’ accused-Sulochana and 3rd accused Jayamma (her mother). He submits such incident is said to have occurred near the public tap when the victim Nagamma had also gone to procure water. In the alleged incident, 2 accused-Sulochana and 3rd accused-Jayamma are alleged to have abused Nagamma. Kumara1st accused instead of supporting his wife-Nagamma, alleged supported accused nos.2

3. Prosecution contends verbal abuse and threats caused by the appellant were sufficient to incite a feeling of disgust in Nagamma to commit suicide. He submits such allegation can hardly be accepted as ‘abetment’ to commit suicide. At the most, it may show appellant was not treating Si -10- Nagamma (his wife) affectionately, but it does not support either of the charges alleged.

14. All these contentions are opposed by the iearned HCGP.

15. I have already referred to the material evidence on record. I am persuaded to accept the contention of Sri Bhagawan that the alleged incIdent near the public tap on the mornIng of 23.3.2005 was not of such nature as to compel Nagamma to take the extreme step of committing suicide. The incident Is alleged to have occurred In the morning and she committed suicide at 2.30 p.m. In the afternoon. The incident undoubtedly is In the house where the appellant lived. Accused nos.2 and 3 admittedly were not living with the couple; may be they were living in the neighbourhood.

16. To sustain the charge under Section 306, I.P.C., necessarily prosecution must bring in nexus between the overt acts of the accused and the suicide committed by the victim. Such overt acts must spell out It amounts to - 11 - abetment as defined under Section 107, I.P.C. I am, therefore, satisfied that the conviction of the appellant for the offence punishable under Section 306, I.RC. is on insufficient material accordingly, requires interference.

17. However, as seen from the material evidence on record, appellant after marrying Nagamma, has not only failed to provide her basic comfort and consortium of married life, but is alleged to have tortured her demanding money for his ill-habits. Several incidents after marriage till her death speak to the fact that accused had torturing her mentally physically which constitutes ‘cruelty’ as defined under Section 498-A, I.P.C. In this view, conviction of the 1St accused-Kumar for the offence under Section 498-A, I.P.C. is confirmed.

18. Accused has been sentenced to two years imprisonment for the offence under Section 498-A, I.P.C. He has been in custody for 7 months. Appellant’s counsel seeks lenient view by way of reduction of the period of imprisonment on the ground accused has failing health. (N (1 - 12 - Considering all attending circumstances in which the accused is placed and the fact that he has already undergone imprisonment for 7 months, he is sentenced to imprisonment period detention already undergone by him (7 months) and to pay a fine of Rs.1O,000/-, in default, to undergo SI for 3 months.

19. As regards accused nos.2 and 3, prosecution has arraigned them on the same set of allegations and evidence. I have already referred to the fact that 2d accused is brought in as the woman who has developed illicit intimacy with the accused-Kumar. Her mother ]ayamma is brought in as 3rd accused on the allegation that she had allowed her daughter-Sulochana to have carnal relationship with the accused-Kumar and to get them married, and she wanted to compel the deceased to desert 1st accused or to commit suicide. But the evidence on record discussed above brings out no incriminating aspects against them except mere allegation that they had lured the 1st accused to marry 2nd accused-Sulochana. That is not sufficient material either to support the charge - 13 - under Section 498-A or 306, I.PC. Besides, it must be noticed accused nos.2 and 3 are not related to the 1st accused and they cannot be treated as persons related to the husband of the victim for the purpose of trying them under Section 498-A, I.PC. In this view, conviction of accused nos.2 and 3 is on insufficient material.

20. In the result, the appeal filed by the 1St accused Kumar in CrI.A.1598/06 is allowed in part in terms of this order.

21. Being satisfied that the evidence on record does inculpate 2nd accused-Sulochana and 3 accused Jayamma either for the offence under Section 4989-A or 306, I.P.C., they are acquitted of all the charges levelled. Accordingly, Crl.A.1531/06 allowed. Bail executed by them and the surety stand cancelled. ]UDGE vg/- & vgh*