JUDGMENT
V.G. Sabhahit, J.
1. This appeal by accused 1 in Sessions Case No. 87 of 1996 on the file of Principal Sessions Judge, Belgaum, is directed against the judgment of conviction and sentence dated 15-9-2001, wherein accused 1-appellant herein is found guilty of having committed the offence punishable under Sections 498-A and 306 of the Indian Penal Code, 1860, and sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 498-A of the IPC, and further sentencing him to undergo rigorous imprisonment for four years for the offence punishable under Section 306 of the IPC.
2. The essential facts of the case leading upto this appeal with reference to the rank of the praties before the Trial Court are as follows.–
It is the case of the prosecution that the sister of the complainant-Geetha was married to accused 1 and his another sister Saraswathi-P.W. 15 was married to accused 2 who is the brother of accused 1. Accused 3 and 4 are the father and mother of accused 1. Accused 5 is the sister of accused 1 and accused 6 is the husband of accused 5. It is the case of the prosecution that marriage of Geetha-the deceased and Saraswathi-P.W. 15 was performed on the same day and thereafter they went to the house of the accused for leading marital life. It is the further case of the prosecution that the accused were subjecting Geetha to cruelty and they were asking her to bring the amount from the house of her parents. It is the case of the prosecution that at the time of marriage one thola gold and Rs. 5,000/- cash and utensils worth Rs. 6,000/- and a watch was given to accused 1 and thereafter when Geetha went to the house of the accused she was ill-treated by the accused and they coerced her to bring two bullocks and Rs. 10,000/- in cash and the said demand was also met. Despite the same, accused continued the ill-treatment and about twenty days next before filing of the complaint when brothers of the complainant had gone to the house of accused they were informed that they should pay Rs. 70,000/- and take Geetha to parents house and Geetha said that she would die there itself and they should not pay the amount. Thereafter the complainant received information stating that Geetha died due to snake bite.
Immediately, the complainant along with P.W. 2 and others went to the house of accused and found the dead body. Geetha had committed suicide. Accused were not present in the house and thereafter P.W.I filed the complaint which was registered by P.W. 22. P.W. 22 registered the complaint in Crime No. 158 of 1995 for the offences punishable under Sections 147, 143, 498-A and 306 read with Section 149 of the IPC, and prepared FIR and sent the same to the Court through P.W. 8-Police Constable. Thereafter inquest was conducted by the Taluka Executive Magistrate as per Ex. P. 14-spot mahazar was conducted. Accused were apprehended by P.W. 21 on 4-12-1995 and after receiving the post-mortem report from P.W. 6 as per Ex. P. 9 and also chemical examination report as per Ex. P. 10. P.W. 23 who had taken up further investigation filed charge-sheet against the accused. The learned Sessions Judge framed charge against accused 1 to 6 for the offences punishable under Section 498-A read with Section 149 and Section 306 read with Section 149 of the IPC. All the accused pleaded not guilty and claimed to be tried.
3. The prosecution examined P.Ws. 1 to 23 and Exs. P. 1 to P. 23, D. 1 to D. 7 were got marked on behalf of the accused and M.Os. 1 to 5 were got marked by the prosecution. The statement of the accused under Section 313 of the Criminal Procedure Code, 1973, was recorded and the defence of the accused is one of denial and it was suggested on behalf of accused 1 to the witnesses that complainant and other witnesses that Geetha had developed intimacy with one Basavaraj who was working as a Doctor and since accused 1 came to know of the same and apprehending that he would inform her parents about the same, she committed suicide. The Trial Court after considering the contention of the parties and the material on record held that the prosecution has failed to prove that accused 2 to 6 have committed the offence punishable under Sections 498-A and 306 read with Section 149 of the IPC, however, held that material on record proves beyond reasonable doubt that accused 1 has committed the offence punishable under Sections 498-A and 306 and after hearing the accused 1 regarding sentence, sentenced the accused to undergo RI for four years for the offence punishable under Section 306, IPC, and further sentenced to undergo RI for two years for the offence punishable under Section 498-A, IPC by judgment dated 15-9-2001. Being aggrieved by the said judgment of conviction and sentence, accused 1 has preferred this appeal.
4. I have heard the learned Counsel appearing for the appellant and the learned State Public Prosecutor for the respondent.
5. The learned Counsel appearing for the appellant submitted that accused 2 to 6 have been acquitted of the offence punishable under Sections 498-A and 306 read with Section 149 of the IPC and benefit of doubt ought to have been extended to accused 1 also as there is no specific allegation against accused 1 and even as per the evidence of the prosecution the harassment by all the accused has not been believed by the Trial Court and accused 1 and Geetha were residing separately and averments made in the complaint that all the accused were living jointly in the same house is false as elicited in the cross-examination of the witnesses and the complainant has tried to implicate innocent persons and therefore benefit of doubt should be given to appellant also and there is no material whatever to show that accused-appellant has committed the offence charged against him under Sections 498-A and 306, IPC, and the question of raising presumption under Section 113-A of Indian Evidence Act, 1872 does not arise as marriage has taken place more than seven years next before commission of the offence and therefore, the appellant is entitled to acquittal of the charges framed against him.
5-A. On the other hand, learned State Public Prosecutor, submitted that the evidence of the complainant and the witnesses P.Ws. 12 to 18 and P.Ws. 21 and 22 would clearly show that Geetha wife of appellant was subjected to cruel treatment and not since she could not withstand the cruel treatment given by accused 1 she committed suicide. He further submitted that the defence taken by the accused that Geetha had developed intimacy with Basavaraj and since accused 1 came to know of the same and apprehending that he may inform the same to her parents house is not probabalised and appellant was absconding till 4-12-1995 and therefore the judgment of conviction and sentence passed by the Trial Court is justified and the sentence imposed upon the accused is also lenient and cannot be said to be excessive.
6. Having regard to the contentions urged, the only points that arise for determination in this appeal are.–
1. Whether the prosecution has proved beyond reasonable doubt that accused 1-the appellant has committed the offence punishable under Sections 498-A and 306, IPC as held by the Trial Court?
2. Whether the sentence imposed by the Trial Court calls for interference in this appeal?
and I answer the above points as follows.–
Point No. 1.–In the affirmative.
Point No. 2.–The sentence is liable to be modified as per the final order for the following.–
REASONS
6-A. I have been taken through the evidence of P.Ws. 1 to 23 and D.W. 1 as also contents of the documents marked on behalf of the prosecution and the accused. It is clear from the perusal of the material on record that Geetha sister of P.W. 1. P.Ws. 15, 12 and daughter of P.W. 14 was married to accused 1 about seven years next before filing of the complaint is not disputed. It is also not disputed that Geetha committed suicide on 30-11-1995 by hanging and the evidence of the Doctor-P.W. 6 who has issued post-mortem report as per Ex. P. 4 shows that Geetha died due to hanging and chemical examination report Ex. P. 2 shows that there is no sign of poison in preserved visseras. Having regard to the above said facts, it is clear that the fact that Geetha wife of the appellant-accused 1 was married about seven years next before filing of the complaint and she has committed suicide on 30-11-1995 is indisputable and according to the prosecution, she committed suicide due to cruel treatment given by accused 1 and according to accused 1-the deceased-Geetha had developed illicit relationship with Basavaraj and since accused 1 came to know of the same and apprehending that he may inform her parents, she committed suicide on 30-11-1995.
7. It is clear from the perusal of the evidence of P.W. 1-the complainant, P.W. 12 who is also the brother of the deceased, P.W. 13 who is an elderly person who has advised accused 1 not to ill-treat Geetha and accused 14 is the father of the deceased, P.W. 15 who is also sister of the deceased and wife of accused 2 that their evidence is consistent and reliable insofar as it relates to cruel treatment given to Geetha. The evidence of P.Ws. 16, 17 and 18 shows that they had gone and advised accused 1 not to ill-treat Geetha. P.W. 1-the complainant has stated in his evidence that Geetha was being ill-treated by the accused, they were asking her to bring pair of bullocks and Rs. 10,000/-and her husband was giving her cruel treatment more than others. They had gone with elders and advised accused 1 and they have purchased and given bullocks and Rs. 10,000/- and he has also stated that when P.W. 12 and C.W. 12 had gone to meet Geetha they were informed that they should given Rs. 20,000/- and take back Geetha to the parents house as they wanted to perform marriage of accused 1 and thereafter they were informed that Geetha died due to snake bite and when he went to the village of the accused he saw the dead body of Geetha in the house and accused were not present there. It is clear from the facts elicited in the cross-examination of this witness and P.W. 1 that nothing has been elicited to disbelieve the evidence regarding the ill-treatment given to Geetha by accused 1 the husband of Geetha. The suggestion made to this witness that accused did not subject Geetha to any ill-treatment and she had developed illicit relationship with one Basavaraj who was working as Doctor and accused 1 came to know of the same and apprehending that he would inform her parents that Geetha committed suicide has been denied by this witness.
8. P.W. 12-the brother of P.W. 1 has also stated in his evidence that Geetha was not looked after properly in the house of the accused and her husband was asking her to bring bullocks from the house of her parents and they have gone and advised him and they have also given bullock and he has also spoken to about the incident fifteen days next before her death when they had gone to the house of the accused and nothing has been elicited in the cross-examination of this witness also to disbelieve the evidence about the ill-treatment given to Geetha. He has further stated that when he received the information about the death of Geetha they went and saw the dead body but accused were not there. The suggestion made to this witness also regarding the defence taken by accused 1 that Geetha had illicit relationship with Basavaraj and since accused 1 came to know of the same, Geetha committed suicide has been denied by P.W. 12.
9. P.W. 13 is an elderly man of Ramadurga and he has stated in his evidence that Geetha was subjected to cruelty and he had gone and advised the accused not to ill-treat her. Nothing has been elicited in the cross-examination of this witness to disbelieve his evidence regarding the fact that he had advised the accused not to ill-treat Geetha.
10. P.W. 14 is the father of Geetha-the deceased and he has also stated in his evidence that accused were assaulting Geetha and accused 1 had demanded a pair of bullocks and one thola gold and the same was given to accused 1 in the presence of elders and thereafter accused 1 kept quite for some time and again started ill-treating Geetha. He has also stated about the incident and that Geetha informed that they need not pay the amount that she would die there itself. He has also denied the suggestion made by the Counsel appearing for accused 1 that Geetha had illicit relationship with Basavaraj and since the same was detected by accused 1, apprehending that he may inform her parents she committed suicide is denied by this witness also.
11. P.W. 15 is the sister of Geetha and she is also wife of accused 2 and she has also stated that Geetha was subjected to cruel treatment and while herself and her husband were living together accused 1 was assaulting Geetha and was asking her to bring Rs. 10,000/- and one pair of bullock and one thola of gold and after said articles were given she was looked after well for ten days and thereafter again started ill-treating. It is elicited in her cross-examination that she does not know the reason as to why Geetha committed suicide on the said day and since her husband came to call her she came back to her house. It may be noted that it is not suggested to this witness that Geetha had developed intimacy with Basavaraj and accused 1 came to know of the same, apprehending that he may inform her parents she committed suicide. Though she is wife of accused 2 and before they were started living separately she was living with other accused along her husband.
11-A. P.W. 16 has stated that she went and saw the dead body of Geetha. P.W. 17 has stated about Geetha complaining about the ill-treatment given to her stating that she was forced to work in the land. P.Ws. 18 and 19 have stated about the handing over of bullock and Rs. 10,000/- and nothing has been elicited in her cross-examination to disbelieve the evidence about the same. P.W. 21 has stated that he searched for the accused and could not find them and on 4-12-1995 he apprehended the accused and produced them before the Inspector along with report Ex. P. 21. P.Ws. 22 and 23 are the Investigation Officers.
12. It is clear from the perusal of evidence of D.W. 1 that he has stated about the illicit relationship with Dr. Basavaraj and that accused 1 came to know of the same and apprehending that he may inform the same to her parents that on the same day Geetha committed suicide. It is elicited in his cross-examination that his house is at a distance of 250 feet from the house of accused 1 and if a person talks with loud voice from the house of accused 1 he can hear the same. He did not hear as to what was the conversation between Bajirao and Geetha on the day preceding the day of commission of suicide and he had not ascertained as to what Bajirao was doing on the said day. He has denied the suggestion that he is deposing falsely to help accused 1. It is further elicited that Basavaraj died about two years ago (witness cross-examined on 18-6-2001). He has denied the suggestion that he is deposing falsely that accused 1 was not in the house as he had gone to Ramadurga to inform him about the incident. It may also be noted while answering the questions framed against accused 1, the defence taken by accused 1 when suggested to the witnesses as stated above, that Geetha had developed intimacy with Dr. Basavaraj since accused 1 came to know of the same and apprehending that he would inform about the same to her parents and she committed suicide is not stated in 313 statement of accused 1. Though the said suggestion is made to the witnesses and all the witnesses have denied suggestions as false and the evidence of D.W. 1 does not probabalise the defence of accused 1 that Geetha had developed intimacy with Dr. Basavaraj. It is also elicited that Basavaraj died two years next before the date of cross-examination of D.W. 1. Under the circumstances, the question is as to whether the prosecution has proved beyond reasonable doubt that accused 1 has subjected Geetha to cruel treatment as defined under Section 498-A of the IPC which drove her to commit suicide and thereby committed the offence punishable under Sections 498-A and 306, IPC. It is clear from the above said evidence of P.Ws. 1 and 12 to 15 that they have clearly spoken to about the ill-treatment given to Geetha by accused 1. It is also clear from the perusal of the material on record that Geetha was subjected to cruel treatment and the fact that she has committed suicide on 30-11-1995 is not disputed and the defence of the accused that she committed suicide as she has developed intimacy with Basavaraj and apprehending that accused 1 may inform her parents, she committed suicide is not probabalised by the material on record as stated above. Cruelty under Section 498-A, IPC is defined as any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide and in the present case the material on record clearly shows that Geetha was subjected to ill-treatment which drove her to commit suicide on 30-11-1995 and therefore, the finding of the Trial Court that prosecution has proved beyond reasonable doubt that accused 1 has committed the offence punishable under Section 498-A is justified. There is no merit in the contention of the learned Counsel appearing for the accused that since accused was charged with the offence under Sections 498-A and 306 read with Section 149, IPC, and other accused were acquitted, benefit of doubt should be extended to accused 1 also and the decision relied upon by him in State of West Bengal v. Vindu Lachmandas Sakhrani alias Deru , wherein father and mother were charged of the offence punishable under Sections 364 and 302 read with Section 34 of the IPC, and wherein the father was acquitted, the Supreme Court said that since material was same against the father and mother, father was also entitled to be acquitted of the offence punishable under Section 302, IPC. Having regard to the facts and circumstances of the present case, the above said decision is not helpful to the appellant in the present case. It is clear from the material on record that prosecution has proved by its own evidence referred to above that the accused has committed the offence punishable under Sections 498-A and 306, IPC and wherefore the decision in Bhagirath v. State of Madhya Pradesh , is also not helpful to the appellant in the present case. It is clear from the facts proved by the prosecution that prosecution has also proved that accused has abetted the commission of suicide by his wife Geetha and thereby committed the offence punishable under Section 306 of the IPC and wherefore the finding of the Trial Court that prosecution has proved beyond reasonable doubt that accused 1 has committed the offence punishable under Sections 498-A and 306 of the IPC, is justified and does not call for interference in this appeal and accordingly, I answer point No. 1.
13. Point No. 2.–The Trial Court has sentenced accused 1 to undergo RI for four years for the offence punishable under Section 306, IPC and to undergo RI for two years for the offence punishable under Section 498-A, IPC. The learned Counsel appearing for the appellant submitted that lenient view may be taken. Having regard to the age of the accused and other material on record, learned State Public Prosecutor submitted that the sentence imposed by the Trial Court cannot be said to be excessive. Having regard to the circumstances under which the offence has been committed and the other material on record, I hold that interest of justice would be met by reducing the sentence imposed by the Trial Court by directing that accused 1-the appellant shall undergo RI for one year for the offence punishable under Section 498-A, IPC and to pay fine of Rs. 5,000/- (Rupees five thousand only) in default of payment of fine, to undergo RI for three months for the offence punishable under Section 498-A, IPC and further to undergo RI for two years for the offence punishable under Section 306, IPC and to pay fine of Rs. 5,000/- (Rupees five thousand only) and in default to undergo further RI for six months for the offence punishable under Section 306, IPC. Accordingly, I answer point No. 2 and pass the following order.–
The appeal is allowed in part. The judgment of conviction passed by the Principal Sessions Judge, Belgaum in S.C. No. 87 of 1996 against appellant holding that prosecution has proved beyond reasonable doubt that accused 1-the appellant has committed the offence under Sections 498-A and 306, IPC is confirmed in modification of the sentence imposed by the Trial Court, the accused is sentenced to undergo RI for one year for the offence punishable under Section 498-A, IPC and to pay fine of Rs. 5,000/- (Rupees five thousand only) in default of payment of fine to undergo RI for three months for the offence punishable under Section 498-A, IPC and to undergo RI for two years for the offence punishable under Section 306, IPC and to pay fine of Rs. 5,000/- (Rupees five thousand only) and in default of payment of fine to undergo further RI for six months for the offence punishable under Section 306, IPC. The substantive sentences to run concurrently and the accused is entitled to set-off of the period of detention undergone during investigation or trial against the sentence imposed upon him, under Section 428, Cr.P.C.