Sri A D Govindaiah vs. Smt Lalithamma,

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU


R
RD
DATED THIS THE 3 DAY OF JULY, 2024


BEFORE

THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

CRIMINAL APPEAL NO. 445 OF 2014 (C)

BETWEEN:

1. SRI. B.S. JANARDHANA
S/O SEENAPPA POOJARI
AGED ABOUT 42 YEARS

2. SMT. B.S. UMAVATHI
W/O SEENAPPA POOJARI
AGED ABOUT 63 YEARS

BOTH ARE RESIDENTS OF
KANTHUR MURNAD VILLAGE
MADIKERI TALUK-571 201
KODAGU DISTRICT
…APPELLANTS










(BY SRI. MADHUKESHWARA, ADVOCATE FOR
SRI. SACHIN B.S., ADVOCATE)

AND:
THE STATE OF KARNATAKA
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE-560 001
…RESPONDENT


Digitally signed by
SHAKAMBARI
Location: HIGH
COURT OF
KARNATAKA

(BY SRI. K. NAGESHWARAPPA, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 16.4.2014
PASSED BY THE PRL. S.J., KODAGU, MADIKERI IN
S.C.NO.8/2002 - CONVICTING THE APPELLANTS/ACCUSED FOR
THE OFFENCE P/U/S 498A AND 306 R/W 34 OF IPC.THE
APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO R.I.

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FOR 7 YEARS AND PAY FINE OF RS.1,000/-, IN DEFAULT TO
PAY FINE, HE SHALL UNDERGO R.I. FOR 6 MONTHS FOR THE
OFFENCE P/U/S 306 R/W 34 OF IPC.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT

The appellants being aggrieved by the judgment of
their conviction and order of sentence passed in Sessions
Case No.8/2002 dated 16.4.2014 have preferred this
appeal.

2. The parties to this appeal are referred as per
their rank before the trial Court.
Proceedings before the trial Court:


3. That the appellants-accused Nos.1 and 2 were
charge sheeted by the Sub-Inspector of Police, Madikeri
Police Station for the offences punishable under Section
498(A) and Section 306 read with Section 34 of IPC on the
ground, that deceased Saraswathi was the wife of accused
no.1 and daughter-in-law of accused no.2. The deceased
along with accused nos. 1 and 2 were residing at Murnad
Village which is about 15 kms. away from Illamonangeri

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Village i.e. native place of deceased Saraswathi (her
parents house). In the marital life with accused no.1,
deceased delivered a male child. Thereafter, relationship
between deceased and accused were strained. They
started quarrelling with each other. It is alleged that,
accused no.1 used to suspect her fidelity and character
and used to harass her both physically and mentally. It is
stated that, in this regard, Panchayaths were conducted
and there was a compromise. It is alleged that, even then,
the accused did not mend their ways and started
harassing the deceased mentally and physically.

4. It is specifically alleged by the complainant
that, having not tolerated the harassment done by the
accused persons, on 4.8.1998, deceased Saraswathi
consumed poison in the early morning hours. She was
initially taken to District Hospital, Madikeri. Thereafter, she
was taken to Wenlock Hospital, Mangaluru. When she was
in District Hospital, Madikeri she gave her statement as
per Ex.P9 and based upon that, the crime was registered

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in Crime No.168/98 of Madikeri Rural Police Station and
the criminal law was set in motion. When she was shifted
to Wenlock hospital, Manguluru and under treatment she
died on 6.8.1998. On the same day itself, the PM on the
dead body was conducted by PW.9 Dr.Nalini Pai of
Wenlock Hospital. It was the opinion of the FSL that
because of consuming poison, she died. The investigation
officer, after completion of the investigation, filed the
charge sheet against the accused for the aforesaid
offences.

5. During the course of trial, accused were granted
bail. Even now also they are on bail. The learned trial
Court framed the charges against the accused for the
aforesaid offences for which, they pleaded not guilty.

6. To substantiate the case of the prosecution, in
all, prosecution examined 10 witnesses and got marked
Ex.P1 to P12 and closed its evidence. None of the
documents are marked on behalf of the defence. No
material objects were marked.

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7. The learned trial Court, after closure of the
evidence and on hearing the arguments, on evaluation of
the evidence placed on record, found both the accused
guilty of committing the aforesaid offences and sentenced
them as under:
(i). A ccused No.1/ Janardhana is
sentenced to undergo rigorous
imprisonment for seven years and to pay
a fine of Rs.1,000-00 [Rupees one
thousand only] for the offence under
Section 306 read with Section 34 1.P.C.,
and in default of payment of fine he is
ordered to undergo rigorous imprisonment
for six months.

(ii) Accused No.2 being a lady, is
sentenced to undergo rigorous
imprisonment for four years and to pay a
fine of Rs.1,000-00 [Rupees one thousand
only] for the offence under Section 306
read with Section 34 I.P.C., and in default
of payment of fine she is ordered to
undergo rigorous imprisonment for six
months.

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8. Now, the appellants-accused nos. 1 and 2 are
before this Court challenging their conviction and sentence.

Proceedings before this Court:

9. The learned Sri Madhukeshwara, Advocate
appearing for the appellants with all vehemence submits
that, the impugned judgment is not at all sustainable
either on law or on facts. He submits that, when the
offences are alleged under Section 498-A, 306 of IPC, the
ingredients of the said offences shall have to be proved in
accordance with law. The crime was registered based upon
the statement of the deceased Saraswathi recorded by the

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Police when she was in the hospital. The doctor has not
certified about her physical, mental and medical capacity
to give statement. Based upon that, a false complaint is
registered. In fact, according to him, this Ex.P9 is not a
genuine document. There was no harassment or ill
treatment by both the accused as per the evidence placed
by the prosecution. He submits that, as per the case of the
prosecution, on the previous night of admitting the
deceased to the Hospital, there was a quarrel. But, she
has consumed poison on the following day in the early
hours. In the intermediate period, what all was transpired
is not explained by the prosecution. Nothing has happened
as alleged by the prosecution. What made the victim to
commit suicide is not stated in Ex.P9. To prove the
offences of the aforesaid nature, it is the duty of the
prosecution to prove the initial mens rea which is very
much essential. The whole genesis of the case of the
prosecution as alleged by the prosecution is not duly
proved in accordance with law. The witnesses have not
supported the case of the prosecution in material

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particulars. According to his submission, the learned trial
Court has committed a grave error in finding the accused
guilty. In support of his submission, he relied upon the
various evidence spoken to by the witnesses as well as the
findings of the trial Court and submits that, there is no
proper evaluation and assessment of the evidence placed
on record by the prosecution. Therefore, he prays to allow
the appeal and set aside the impugned judgment.

10. Refuting this submission, the learned HCGP
submits that, the trial Court has rightly convicted the
accused and hence, no interference is required into the
impugned judgment. The witnesses so examined in this
case especially of PW.5, the sister of the deceased has
come before the trial Court and stated about the mental,
physical harassment to the married woman i.e. Saraswati
his sister by the accused. Ex.P9 (Statement of accused) is
a genuine document and no fault can be found with the
genuineness of the said document in the absence of
acceptable cross-examination directed to PW.8, the Police

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Officer who has recorded the statement as per Ex.P9.
In support of his submission, he too relies upon the
evidence placed on record by the prosecution and findings
of the trial Court, he prays to dismiss the appeal.

11. I have given my anxious consideration to the
arguments on both the sides. Meticulously perused the
record. In view of the rival submissions of both the sides,
the following points arise for my consideration:
1 . Whether the prosecution proves the
suicidal death of deceased Saraswathi by
consuming poison?

2. Whether the judgment of conviction
and order of sentence passed by the trial
Court suffers from infirmity, illegality,
without appreciation of evidence in a
proper manner and hence, require
interference by this Court?




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ANALYSIS:
12. So far as relationship between deceased
Saraswathi and accused no.1 is concerned, they are wife
and husband. Deceased Saraswathi was the daughter of
PW.4 Babu Channappa Poojary and Kamala i.e. PW.6.
Marriage of deceased Saraswathi with accused no.1 was
performed about 10 years back prior to PW.6 gave
evidence before the trial Court.


13. It is the case of the prosecution as per the
complaint/dying declaration i.e. Ex.P9 that, in the wedlock
between accused no.1 and deceased, a male child is born.
After marriage, both accused no.1 and deceased used to
reside together along with her mother-in-law accused
no.2. They lead a happy married life for about one year. It
is stated that, thereafter, accused no.1 started suspecting
the fidelity of deceased Saraswathi and started
harassment both physically and mentally. It is alleged
that, on 3.8.1998, after dinner, there was a quarrel
between accused no.1 & 2 and deceased and at that time,

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accused no.1 abused her in filthy language and told that
she is having her paramours. Because of the persistent
harassment by accused nos. 1 and 2 continuously, at 5.30
a.m. on 4.8.1998, she consumed pesticide used for coffee
plantation. She was shifted to District Hospital, Madikeri
and there she gave a statement about consumption of
poison by her. She was shifted to Wenlock Hospital and
there she died.
14. After her death, the inquest panchanama
was conducted as per Ex.P1 by the IO in the presence of
Panchas noting about the consumption of poison by her.
After conducting the inquest panchanama, the dead body
was sent for post mortem. The doctor on duty conducted
the post mortem and prepared the report as per Ex.P11.
To prove the said fact, prosecution relies upon evidence of
PW.1 the inquest pancha but, he has been turned hostile.
So also, PW.4 Babu Channappa Poojary the father of the
deceased, PW.5 Meenakshi, sister of the deceased, PW.6
Kamala mother of the deceased, PW.7 Murthy Prasad a

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neighbour of father of the deceased. PW.8 H.C.Sannayya
who recorded statement of deceased as per Ex.P8, PW.9
Dr.Nalini Pai who conducted the post mortem, and the IOs
evidence. On reading the evidence of all these witnesses
coupled with inquest report as well as post mortem report,
it shows that deceased Saraswathi died because of
consuming poison named as Organophospherous as noted
in the PM report.
15. The fact of consuming the said poison is noticed
at the time of conducting the post mortem and even the
FSL report sent to the Laboratory corroborates the said
fact. The defence also do not deny about the death of
deceased by consuming the said poison. Therefore, on
cumulative reading of the aforesaid discussed evidence, it
is proved by the prosecution, that deceased Saraswathi
died because of consuming the poison. Therefore, point
no.1 raised supra is answered in the affirmative.

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16. It is the specific assertion of the prosecution
that, accused no.1 being husband and accused no.2 being
the mother-in-law of the deceased after one year of the
marriage with accused no.1, started ill treatment and
torture on deceased Saraswathi. It is stated that
unnecessarily, the accused started doubting her fidelity.
She went to her parental house and thereafter her father
brought her back two days prior to the date of incident. It
is alleged, that on the previous night of the incident there
was a quarrel after dinner. At that time, accused no.1
abused her stating that she is having paramours. It is
further case of the prosecution that, because of continuous
harassment by both the accused at 5.30 a.m. on 4.8.1998
she consumed pesticide used for coffee plantation which
she has brought about one week back. Subsequently she
died because of consuming the said poison. In view of the
allegations made in her statement Ex.P8, the criminal law
was set in motion and accused nos.1 and 2 were charge-
sheeted for the offences punishable under Section 498A
and 306 of IPC.

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17. To prove the said offences, prosecution relies
upon the various evidence spoken to by the witnesses
amongst them, PW.2 Poovappa has given statement as
per Ex.P2 prepared by the Police. He states that, he does
not know why Saraswathi committed suicide. He does not
know the contents of Ex.P2. Likewise, PW.3 Ashoka
Subramani has given a statement as per Ex.P3. He states
that Saraswathi died at Wenlock Hospital, Mangaluru.
Police took his signature at Murnal. Both these witnesses
turned hostile but, nothing worth is elicited from their
mouth. To the extent of they giving statement before the
police, their evidence is to be accepted. But, both do not
know the contents of their statement. Therefore, their
evidence would not help the case of the prosecution.
18. PW.4 Babu Channappa Poojary, PW.5
Meenakshi, PW.6 Kamala are the close relatives of the
deceased as stated above. As per the statement Ex.P8,
about one week prior to the incident, deceased went to
her parent's house. but, PW4 statement shows, she visited

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his house 4 months prior to death. This evidence of all
these witnesses being the close relatives of deceased show
that, there was no harassment or ill treatment by the
accused persons on the deceased. It has come in the
evidence of PW.4 that, deceased Saraswathi never
revealed about the same to him. He just speaks about
consuming of pesticide. PW.5 states that accused used to
look after her sister cordially. So also, PW.6 speaks in
similar terms. The learned Public Prosecutor declared them
as hostile witnesses but, nothing worth is elicited so as to
disbelieve their version spoken in their examination in
chief.
19. PW.7 Murthy Prasad is a neighbour and he
speaks about consumption of poison by deceased
Saraswathi and shifting her to Madikeri Hospital. He came
to know about death of deceased and he put his signature
on Ex.P7. He never speaks about ill-treatment or
harassment by the accused. He states in his examination

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in chief that, accused was looking after Saraswathi
cordially.
20. PW.8 H.C.Sannaiah, HC attached to Madikeri PS
at the relevant time, as per the information received by
the SHO of the said Police Station, he went to District
Hospital, Madikeri and noticed that, deceased Saraswathi
was taking treatment and she was in Emergency ward.
One staff nurse showed Sarswathi and she was conscious
and talking. Accordingly, he recorded the statement of
Saraswathi as per Ex.P9 and handed over the same to the
SHO. This Ex.P9 was the basis for setting the criminal law
in motion and based on that, a complaint was registered.
21. On reading the evidence of PW.8, he never says
that, he met the doctor at District Hospital, Madikeri, took
his opinion regarding physical, mental and medical
capacity of the deceased to give statement. When she has
consumed poison and was taking treatment at Emergency
ward, this PW.8 ought to have got the certificate from the

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treating doctor about her competency to give a statement.
In categorical terms, he states that, he did not obtain a
certificate from the doctor regarding the mental condition
of the patient to give statement. He also states that he
has not recorded the statement in the presence of the
doctor. Even he has not mentioned the time of recording
the statement. He has not obtained the signature of the
doctor on Ex.P9. Even he cannot say that why Saraswathi
did not sign the Ex.P9. He denied other suggestions.
22. This Ex.P9 is the main document pressed into
service by the prosecution to prove the harassment and ill
treatment by the accused persons and also abetment to
commit suicide by the deceased. But, there is no
acceptable evidence brought on record by the prosecution
to prove the said fact with legal evidence.

23. PW.10 Vinod Kumar, is the brother of deceased
and has come before the trial Court and states that when
he visited the house of the accused, she used to complain

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about accused no.2 telling that, whatever the work she
does in the house, accused no.2 was not satisfied. He
states that deceased never complained against accused
no.1. Deceased visited his house about two months prior
to her death. He speaks with regard to the death of
deceased by consuming poison. He too has been declared
hostile but, nothing worth is elicited from his mouth. The
IO in this case is not examined by the prosecution.
24. When offences under Section 498A and 306 of
IPC are attributed against the accused persons, it is
bounden duty of the prosecution to prove the ingredients
of the said offences.
25. On perusal of Sec.498A of IPC, it would show
that cruelty would mean any willful conduct which was of
such a nature as was likely to drive a woman to commit
suicide or to cause grave injury or danger to life, limb or
health whether mental or physical to the woman.

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26. Here in this case, except the bald statement in
Ex.P9, there is no evidence about cruelty and harassment
alleged to have been given to the deceased. It is settled
principle of law that, mere quarrels between husband and
wife do not amount to cruelty and harassment attracting
the provisions of Sec.498A of IPC. The prosecution is
under obligation to prove the ingredients of said offence to
see that, there is a real cruelty on a married woman by
her husband and in-laws. The harassment need not be in
the form of a physical assault and even mental
harassment also would come within the purview of
Sec.498A of IPC. The evidence so placed on record by the
prosecution that is of parents of deceased, her brother and
sister, as discussed above, would prove in clear terms that
accused no.1 looked after the deceased cordially. Even her
brother states, accused no.2 was dissatisfied by the work
done by the deceased. Accused no.1 never ill treated her.
Therefore, there is no reason to discard the evidence of
these witnesses who are the material witnesses to
understand the acts and behaviour of appellant-accused.

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Though suicidal death is established by prosecution but,
there is no evidence to prove that really there was a
harassment, ill treatment by these accused persons on the
deceased. Even there is no abetment to commit suicide as
alleged by the prosecution because, as rightly submitted
by the counsel for the appellant-accused, suicide is a
process wherein a person gets dejected over his/her life
and decides to bit adieu to the planet. A person who
commits suicide becomes victim of circumstances, leading
to only alternative of taking the extreme step. It is the
mental attitude that a person decides to die. It is an
instigation to commit suicide when the mental state is
inducted by others, in which event, they would be
committing instigation to commit suicide.
27. A co-ordinate Bench of this Court in
Gangadhar and another vs. State of Karnataka
reported in (2018) 5 KLJ 173 has held that "reasons for
instigation to commit suicide, cannot be judged exclusively
from the point of the person who commits suicide or the

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person against whom instigation is alleged, the accused in
present case. For a person who instigates, may be,
unmindful of his act and impossible impact on the person
and chances of the later taking extreme step. An
independent assessment only would establish whether that
act of accused really instigated victim to commit suicide."
28. In the instant case, no such words were
used by the accused or the act of the accused towards the
victim to commit suicide. It was a usual quarrel between
the husband and wife. In such offences, mens rea active
or direct act leading deceased to commit suicide are
essential for invoking the provisions of Section 306 of IPC.
As discussed above, abetment involves a mental process
of instigating a person or intentionally aiding a person in
doing of a thing. Without a positive act on the part of the
accused to instigate or aid in committing suicide, the law is
that, conviction cannot sustained.

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29. Therefore, in order to convict a person
under Section 306 of IPC, there has to be a clear mens rea
to commit the offence. It also requires an active act or
direct act which lead the deceased to commit suicide
seeing no option and this act must have been intended to
push the deceased into such a position that he or she
committed suicide.
30. In this case, the accused being a coolie
person was alleged to have harassed his wife leveling
allegations against her doubting her chastity. But, this fact
is falsified by the evidence of the witnesses of parents,
brother and sister of deceased. In such premise, the trial
Court should not have accepted the evidence of
prosecution witnesses to be trustworthy in coming to the
conclusions that appellants/accused meted deceased with
cruelty, thereby committed the offence under Sec.498A
and 306 read with Section 34 of IPC. So, on re-appraisal
of the evidence on record, this Court is of the view that,
there being no credible evidence on record in this case to

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come to a finding that, the appellants meted the deceased
Saraswathi with cruelty. Hence, the impugned judgment of
conviction recorded by the trial Court is unsustainable in
the eye of law. Thus, the judgment of the trial Court as
rightly submitted by the counsel for the appellant can be
termed as perverse and it suffers from illegality and
infirmity, consequentially, leading to flagrant miscarriage
of justice warranting an interference by this Court.
Accordingly, Point No.2 raised supra is answered in favour
of the appellant-accused and against the prosecution.
Resultantly, I pass the following:
ORDER
(i) Criminal Appeal stands allowed.
(ii) The impugned judgment of conviction and
order of sentence dated 16.04.2014
passed by the Prl.Sessions Judge, Kodagu
at Madikeri against the appellant-accused,
is set aside.

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(iii) Consequentially, the appellants-accused
are acquitted of the charges under Section
498-A, 306 read with Section 34 of IPC.
(iv) The bail bonds furnished by the accused-
appellants stand cancelled.
(v) Send back the trail Court records along
with copy of this judgment.


Sd/-
JUDGE




Sk/-
List No.: 1 Sl No.: 3