STATE Vs. SIDDARAJU

JUDGEMENT

(1.) THIS appeal concerns, predominantly the important aspect of law as to whether the contracting of a second marriage by a husband during the pendency of the first one and at a time when the first wife was living with the husband in the same house would constitute cruelty within the definition as encompassed in S. 498a, IPC. and secondly as to whether in a case where the wife commits suicide shortly thereafter and the facts establish that the wife was driven to this act due to the cruelty of the accused, a conviction under S. 306, IPC i. e. abetment of suicide is tenable. The distressing facts that are relevant are that the accused Siddaraju was married to Ningammanni at Kallamballi on 18-6-1992. Some time thereafter the accused developed intimacy with the Gowramma and married her on 9-11-1993 at a temple at Kallamballi. It is alleged that Ningammanni was sev erely ill-treated by the accused-husband and his parents and that inter alia, she was not even given proper food in the house as a result of which, she was left with no option except to go away to her parents house. Strangely enough, when the complaint went to the panchayat, the accused expressed his regret and agreed to treat Ningammanni properly as a result of which she came back to her matrimonial home. Hardly ten days after this, Ningammanni committed suicide by dousing her clothes with kerosene and setting them on fire. She was taken to the K. R. Hosptial, Mysore with 70% burns and she died at 5. 10 p. m. on 30-1-1994. On a complaint lodged with the police by her mother Mahadevamma, offences under Ss. 498a and 306, IPC, were registered against the accused. He was placed under arrest and put up for trial on completion of the investigation. The learned trial Judge held that the evidence does not establish either of the two charges and acquitted the accused. The State has assailed the correctness of the order of acquittal through the present appeal. Since the accused was served and unrepresented, this Court has appointed learned Advocate Mr. Hanumanthareddy Sahukar as amicus curiae on behalf of the accused.

(2.) AT the hearing of the appeal, the learned Addl. S. P. P. and the learned Advocate representing the accused have relied on the oral evidence and have made their submissions both on points of fact and law. On behalf of the appellants, reliance is placed on the evidence of PW 1 Mahadevamma who apart from a general narration has very clearly pointed out that the accused had ill-treated her daughter, that he had contacted intimacy with PW 13 Gowramma and that he had thereafter married her at the local temple and brought her to stay in the house. PW 1 has also indicated that right from the beginning, the accused had treated the deceased with a high level of discourtesy and that he had severally humiliated and insulted her apart from other forms of physical illtreatment by starting up an intimacy with Gowramma. He had compounded the situation by marrying Gowramma and bringing her to stay in the house after which the deceased was severely ill-treated both physically and mentally and was even deprived of food as a result of which, out of desperation, the deceased went back to her parents house. The matter was reported to the local panchayatdars and we have no record the evidence of PW B. Puttawamy Setty, PW 10 Chnnaswamy Setty and PW 11 Chidananda who have in turn confirmed the aforesaid facts and have also indicated in their evidence that the accused had virtually accepted the position that he had ill-etreated the deceased-wife and he gave an assurance that she should come back and stay with him and that he would treat her well. The evidence of PW 1 the mother and of these three witnesses has withstood the test of cross-examination and the facts as deposed to by them have virtually remained uncontroverted. To compound matters, we have on record the evidence of PW 13 Gowramma who is the second wife and who has in turn admitted that the accused had started an affair with her, that he used to molest her and that she insisted that the accused should marry her which he agreed to do and after her marriage at the temple that he took her to stay in his house. All these facts have been confirmed by PW 14 Thayamma who is the mother of Gowramma. This evidence again has not been disputed and the accused himself has admitted to what transpired before the panchayat and to the fact that during the pendency of his marriage to the deceased, hardly a year after the marriage in question that he had contacted the second marriage with Gowramma. The only defence that is pleaded is to the effect that the accused had not really ill-treated the accused, that she had gone away on her own volition because she did not approve of his second marriage and that she had come back voluntarily being fully aware of the presence of the second wife in the house and it is therefore contended that the suicide that took place on 29-1-1994 was due to some other extraneous reasons and that the accused was not responsible for it. The learned trial Judge has relied on a Division Bench decision of this Court reported in ILR 1996 Kant 1107 wherein the Court had occasion to consider the ingredients of Ss. 498a and 306, IPC and the learned trial Judge has concluded that since cruelty is the basis for conviction as far as both these sections are concerned and since in his view, the evidence did not conclusively establish cruelty of the gravity as is defined in S. 498a, that the accused was liable to be acquitted.

(3.) THE learned Addl. S. P. P. has submitted that the facts of the case before the Division Bench were entirety different and that there was no evidence in that case to establish cruelty. He relies heavily on the evidence of PW 1 and the three panchayatdars PWs 8, 10 and 11 and he submits that this evidence unequivocally establishes the fact that the deceased was treated badly to start with and that this situation was grossly aggravated when the accused brazenly started an illegal intimacy with Gowramma and matters really came to an end when he married her and brought her into the house and started severely ill-treating the deceased thereafter. The submission is that this Court has to take a total view of the picture including the admissions made by the accused before the panchayatdars with regard to his earlier ill-treatment of the deceased and the learned Advocate submits that in this backgound the Court must hold that the deceased was subjected to both mental and physical cruelty and that he has committed an offence punishable under S. 498a, IPC. On the aspect of the more serious charge, it was submitted that S. 113a of the Evidence Act postulates that once it is shown that the suicide had occurred within a period of seven years from the date of marriage and that the ingredient of cruelty had been established, that in law, the Court is required to presume that such suicide had been abetted by the husband. It was further submitted that after the promulgation of S. 113a that the definition of abatement under S. 107 of the IPC. has virtually been expanded in order to encompass the class of cases where as a result of severe cruelty the wife is driven to a suicide. The submission was that in such situations, a conviction under S. 306, IPC, is fully justified.