Karnataka High Court
Shri Siddappa Gangappa Khanagavi vs State Of Karnataka on 20 February, 2019
Author: A.S Bellunke
Bench: A.S Bellunke
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20th DAY OF FEBRUARY 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
CRIMINAL APPEAL No.2628 OF 2010
BETWEEN:
1. SHRI SIDDAPPA GANGAPPA KHANAGAVI
AGE 60 YEARS,
OCC:AGRICULTURE, R/O CHACHADI
TQ:SAUNDATTI
2. SMT. MALLAWWA W/O BASAVANNEPPA KHANAGAVI
AGE 45 YEARS, OCC:HOUSEHOLD WORK
R/O CHACHADI, TQ:SAUNDATTI
3. SMT. PARAWWA W/O SIDDAPPA KHANAGAVI
AGE 38 YEARS, OCC:HOUSEHOLD WORK
R/O CHACHADI, TQ:SAUNDATTI
4. IRAPPA BASAVANEPPA KHANAGAVI
AGE 30 YEARS, OCC:AGRIL,
R/O CHACHADI, TQ:SAUNDATTI
5. SHRISHAIL BASAVANNEPPA YAKKUNDI
AGE 67 YEARS, OCC:AGRIL,
R/O CHACHADI, TQ:SAUNDATTI
...APPELLANTS
(BY SRI. A.A. PATHAN, ADV.)
2
AND:
STATE OF KARNATAKA
BY POLICE SUB INSPECTOR MURGOD POLICE
STATION MURGOD, REP BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING, CIRCUIT BENCH
DHARWAD.
...RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
THIS APPEAL IS FILED U/S 374(2)SEEKING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 08.03.2010 IN S.C.NO.170/2008
PASSED BY THE LEARNED VI ADDITIONAL SESSIONS
JUDGE BELGAUM, ACCUSED ARE CONVICTED UNDER
SECTION 235 CR.P.C. FOR THE OFFENCE UNDER SECTION
306 R/W SECTION 109 OF I.P.C. EACH OF THE ACCUSED
IS SENTENCED TO SIMPLE IMPRISONMENT FOR 5 YEARS
AND FINE OF RS.10,000/- FOR THE OFFENCE UNDER
SECTION 306 R/W SECTION 109 OF I.P.C. IN DEFAULT OF
PAYMENT OF FINE, THEY SHALL UNDERGO FURTHER
SIMPLE IMPRISONMENT FOR 2 1/2 (TWO AND HALF)
YEARS. OUT OF THE FINE AMOUNT, AN AMOUNT OF
RS.45,000/- IS AWARDED TO SMT. IRAWWA W/O
MAHADEVAPPA KHANAGAVI AS COMPENSATION UNDER
SECTION 357 CR.P.C. BALANCE FINE AMOUNT OF
RS.5,000/- IS TREATED AS FINE. ACCUSED SHALL BE
GIVEN SET OFF AS PROVIDED UNDER SECTION 428
CR.P.C.
RESERVED FOR JUDGMENT ON : 09.01.2019
JUDGMENT PRONOUNCED ON : 20.02.2019
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING :
3
JUDGMENT
This is an appeal filed by the accused against the judgment of conviction and sentence dated 8 t h March 2010 passed by the VI Additional Sessions Judge, Belgaum, in Sessions Case No.170 of 2008 for the offence punishable under Section 306 read with Section 109 of the Indian Penal Code.
2. Brief facts of the case are as follows:
Mahadevappa-deceased, is the brother of accused No.1. The said Mahadevappa had two brothers namely Siddappa and Basavanneppa.
Their family owned agricultural land measuring 24 acres 32 guntas. Father of complainant and his brothers got divided their ancestral property and are enjoying their respective shares separately.
There was no sub-division in the property partitioned between late Mahadevappa, Siddappa and Basavannappa. Accused No.2 is the wife of 4 Basavanneppa, the brother of late Mahadevappa.
Accused No.4 is the son of late Basavanennappa.
Accused No.3 is the wife of accused No.1.
Accused No.5 is a stranger to the family of late Mahadevappa. It is further alleged that the deceased Mahadevappa had incurred debt for the purpose of marriage of his daughter. Therefore, he intended to sell his property to discharge the loan amount. The deceased Mahadevappa was insisting accused 1 to 4 to give consent for effecting sub-division in the property allotted to his share in the partition. In spite of the request, the accused were causing mental harassment to the deceased Mahadevappa. Mahadevappa unable to bear the humiliation caused by the accused, he committed suicide by hanging to a tree in his land on 11.01.2008. The complainant, who is the son of the deceased Mahadevappa, who went to the land on the next morning, found his father in a hanging position to a tree. Hence, he lodged a complaint 5 before the Murgod Police Station which is registered in Crime No.10 of 2008 for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code alleging that the accused have intentionally caused abetment to the deceased to commit suicide. The death note was also found in the pocket of the deceased which was seized during the course of investigation. The dead body was sent to postmortem examination to ascertain the cause of death. After completing investigation, the Investigating Officer filed charge sheet against the accused for the offences punishable under Sections 306 and 109 read with section 34 of the Indian Penal Code. The learned Magistrate registered a criminal case against the accused.
Since the offence was exclusively triable by the Court of Sessions, committed the case to the Sessions Court. The Sessions Court, on considering the oral and documentary evidence on 6 record, found the accused guilty of the offences leveled against them and accordingly, convicted them for the offence under Section 306 read with Section 109 of IPC and sentenced each of the accused to undergo simple imprisonment for 5 years and to pay of Rs.10,000/- each. In default of payment of fine, to undergo further simple imprisonment for 2½ years. Being aggrieved by the aforesaid judgment of conviction and sentence, the accused have preferred this appeal.
3. Learned counsel for the appellants contended that the impugned judgment of conviction and sentence is contrary to law, facts and evidence on record. The trial Court has committed an error resulting in substantial miscarriage of justice by wrongly appreciating the evidence of PW-7-wife of the deceased, PW-3-son of the deceased and PW-8-sister of the deceased, who are all relatives and interested witnesses. It 7 is further contended that the trial Court failed to note that there was already partition in the joint family property and they were enjoying their respective shares separately for more than 20 years. Each of them had 7 acres of land to their respective shares. Accused No.5 was cultivating some lands belonging to deceased Mahadevappa and he had vacated the same in the year 2002. Deceased Mahadevappa was indebted to many persons. They were demanding repayment of loan, which was borrowed, with interest. Therefore, the deceased got worried and depressed and hence committed suicide by hanging in his land. The trial Court failed to consider this fact which was very much available on record. There is material contradiction, improvement and omission in the statement of the witnesses which has not been taken into consideration by the trial Court. A false case has been registered by PW-3 against the accused on 8 account of ill-will of political opposite parties of the appellants. Though the dead body was found in the night itself, no body informed the police till the next day. PWs.3, 7, and 8 are not in talking terms with the accused and they never approached the accused personally to request them to give their consent signature regarding sub-division of the property. Ex.P-7, alleged death note is a concocted and created document which is not in the handwriting of the deceased. There is no expert opinion on that. On account of ill-will, accused No.5, who is a stranger to this case, is also implicated in the case. The witnesses have categorically admitted that they have thought that the deceased would commit suicide. There is enormous delay in filing the complaint. That the entire case is cooked up. The evidence of the witnesses does not inspire confidence in the mind of the Court. It is contended that accused No.1 was 60 years, accused No.2 was aged 45 years, 9 accused No.3 was aged 38 years, accused No.4 was aged about 30 years and accused No.5 was aged 67 years as on the date of the alleged incident. Accused No.1 and the deceased were brothers. There was no intention on the part of the accused persons that the deceased should commit suicide. They got the properties divided about 20 years back. There was no dispute between the family members regarding the allotment of share. That the alleged document Ex.P-7 was inserted in the pocket of the deceased with the connivance of the investigating officer. Absolutely, there is no evidence to show that the accused, with a common intention, had instigated the deceased to commit suicide. Independent witnesses have not supported the case of the prosecution. PW-7 is an illiterate and though she had come to know about missing of her husband in the night itself, no complaint was filed by her. Therefore, in view of the above said facts, the 10 prosecution has miserably failed to prove the guilt of the accused and prayed to allow the appeal by setting aside impugned judgment of conviction and sentence.
4. Per contra, learned Additional State Public Prosecutor justified the impugned judgment of conviction and sentence. He contended that Ex.P-1 proves that the accused had a motive to commit the offence which is supported by the cogent evidence let-in by PWs.3 and 7 which is corroborated by the evidence of the independent witnesses. Signature appeared on Ex.D-1 produced by the accused themselves tallied with the signature on the death note of the deceased at Ex.P-7. The witnesses have categorically identified the signature on Ex.P-7. It is only on account of the intentional abetment caused by the accused, Mahadevappa committed suicide. Hence, 11 the learned Additional SPP prayed for dismissal of the appeal.
5. Having heard the learned counsel for the appellants and learned Additional State Public Prosecutor for the State, the points that arise for consideration in this appeal is:
Whether the prosecution has proved before the trial court that the appellants-
accused intentionally harassed the
deceased-Mahadevappa and thereby
abetted him to commit suicide and
thereby have committed an offence
punishable under Section 306 read with Section 109 of IPC?
6. Before discussing the evidence on record, it is necessary to understand the provisions of Sections 107 and 306 of the Indian Penal Code (hereinafter referred to as the 'IPC' for short). In this regard, decision rendered by the Hon'ble Supreme Court in the case of Sanju alias 12 Sanjay Singh Sengar v. State of M.P. reported in (2002) 5 Supreme Court Cases 371, is referred to, wherein the Hon'ble Apex Court has held as under:
A. Penal Code, 1860 -S.107 Firstly- Ingredients-Instigating a person to do a thing-Held, "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite-Pressure in a quarrel or on the spur of moment, such as "to go and die", cannot be taken to be uttered with mens rea.
B. Penal Code, 1860-S.306 r/w S.107- Abetment of suicide-Quarrel taking place between appellant and deceased in which appellant was said to have told the deceased "to go and die"-deceased found dead two days later-Held, suicide and not proximate to the quarrel though the deceased was named in the suicide note- Hence suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and die.13
C. Penal Code, 1860-S.306-Suicide note, Appellant specifically named in suicide note which was otherwise not coherent and reflected disturbed state of mind- There was also evidence on record that the deceased always indulged in drinking and was not doing any work- Suicide note, taken with other circumstances, held deserved no credence D. Criminal Procedure Code, 1973-S.482- Prosecution under S.306 IPC quashed."
Further, the Hon'ble Supreme Court has held as under:
Both the courts below have erroneously accepted the prosecution story that the suicide by the deceased was the direct result of the quarrel that had taken place on 25.7.1998 it is alleged that the appellant had used abusive language and head reportedly told the deceased "to go and die". For this, Courts relied on a statement of S, brother of the deceased, made under Section 161 CrPC when reportedly the deceased, after coming back from the house of the appellant, told him 14 that the appellant had humiliated him and abused him with filthy words. In the statement of S, recorded under Section 161 CrPC, it has not been stated that the deceased had told him that the appellant had asked him "to go and die". Even if one accepts the prosecution story that he appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of Mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. Secondly, the alleged abusive words, said to have been told to the deceased were on 25.07.1998 ensued by a quarrel. The deceased was found hanging on 27.7.1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it 15 cannot be said that the abusive language, which had seen used by the appellant on 25.7.1998 drove the deceased to commit suicide. Suicide by the deceased on 27.7.1998 is not proximate to the abusive language uttered by the appellant on 25.07.1998. The fact that the deceased committed suicide on 27.07.1998 would itself clearly point out that it is not the direct result of the quarrel taken place on 25.07.1998 when it is alleged that the appellant had used the abusive language and also told the deceased to do and die.
This fact had escaped notice of the courts below."
7. After understanding the position of law, I proceed to examine whether the prosecution had proved that the accused had necessary mens rea to cause intentional abetment to the deceased and they intended that the deceased should commit suicide and thereby caused abetment to him. Further, it has to be ascertained that the deceased 16 committed suicide only on account of this intentional abetment caused by the accused.
8. The prosecution has only one ground to contend that the act of the accused amounted to intentional abetment or instigation to the deceased to commit suicide. The cause is that, the accused refused to give consent for making sub-division of the properties which were partitioned by their father among his sons. Among the brothers of the deceased, accused No.1 alone is surviving. PW-1 is the doctor who conducted postmortem over the dead body of the Mahadevappa and found that the death due to asphyxia as a result of hanging. The postmortem report at Ex.P-1. The fact that the deceased committed suicide is not in dispute. Therefore, it has to be proved that the deceased committed suicide on account of the intentional abetment caused by the accused persons. PW-2 is a police 17 constable who carried the dead body to the Medical Officer, CHC Yaragatti, on the requisition given by PSI for post mortem examination and again carried the dead body along with the report and submitted the report to PSI. He had also accompanied the investigating officer to the spot and had taken photographs of the dead body in a hanging position as per Exs.P-4 and 5.
9. PW-3 is the complainant who is the son of the deceased. He admits that accused No.5 does not belong to his family. His father and his brothers are the members of the joint family. They possess 24.32 acres of land. They got divided the properties and are enjoying their respective shares to an extent of 7 acres each separately. All the Revenue records stand in the joint names of his father and his two brothers. It is not dispute that all the sharers were enjoying their respective extent of land separately. The 18 partition effected was much prior to the alleged incident. Accused No.5 was cultivating the land for some time and now he has given up. According to the complainant, it was in the year 2002. It is further deposed by PW-1 that the deceased had borrowed Rs.75,000/- to perform the marriage of his daughter. The creditors were pressurizing his father to repay the same with interest. Therefore, his father intended to sell his portion of the land. But he could not sell the same as the lands continued to be in the joint names of his father and his senior uncles. Hence, his father approached elders in the village and requested them to persuade his uncle and other family members to divide the lands and to give consent for sub-division. According to PW-3, accused No.5 started instigating accused Nos.1 to 4 not to agree for the division of lands, as a share in the said land will have to be given to the unmarried sister of PW-3. Since accused Nos.1 to 4 never agreed 19 for division, his father became worried and depressed and committed suicide by hanging.
10. PW-3 has further deposed that the handwriting on Ex.P-7 is of his father. His house and the house of the accused are situated by the aside of each other. Accused Nos.1 to 4 used to quarrel with them repeatedly and used to assault them for one reason or the other thereby subjecting to physical and mental cruelty. He filed a complaint as per Ex.P-6. PW-3 in his cross- examination admits that accused No.5 is doing the task of elderly person in the village. He used to take active role in each and every functions and disputes in his family. He further admits that 3 independent houses were given to the shares of all the three brothers including his father. So far as allotment of share in the alleged property is concerned, there is no dispute. When his father left the home, he was not in the village as he had 20 been to Vannur and returned two days after. He admits that he had not mentioned in the complaint or in his further statement about his father incurring expenses of Rs.30,000/- to get back the land from accused No.5 and has not mentioned in the complaint about the fact of the persons who have advanced loan to his father. He has mentioned in the complaint that accused No.5 was asking accused Nos.1 to 4 not to sign any document to avoid giving any share to unmarried sisters of his father. He cannot say the date and the day on which accused Nos.1 to 4 quarrelled with his father, abused him and assaulted him when his father asked them for division of the lands. He was not present when the said incident took place. He cannot give specific date and time that when this accused repeatedly quarreled with his father and harassed him. He 21 denied that the accused were not insisting the deceased to bear the expenses towards revenue to get their names entered separately in respect of their respective shares. It is admitted that his paternal aunt had filed a complaint against his father and accused Nos.1 to 4 8 days prior to his death. But no case has been registered on such complaint. He has never gone through the hand script on Ex.P-7 even till today. He does not know what is written on the said hand script. He never thought of reading the same. He denied that in the third line of Ex.P-7 the word Maduvege has been subsequently inserted. He does not know that when his father had written Ex.P-7. He had no idea that this father would commit suicide. According to him, Ex.P-7 was shown to him by the police at 11.00 am. He admits that his father had borrowed certain sum under Ex.D-1. His father was due to a 22 sum of Rs.1,10,000/- towards the amount borrowed with interest from other sources.
11. PW-4 is an elderly person who had approached accused Nos.2 and 3, on the request made by deceased Mahadevappa, to give consent to divide the landed properties. But they refused to do so stating that the deceased was due to pay money to them and if that is paid, they will give consent. His share, in fact, could not be sold for want of consent from accused Nos.1 to 4. He is also signatory to Ex.P-9 under which M.O.1-rope was seized. PW-4 in his cross-examination has deposed that he didn't know how many pages are there in Ex.P-7. He has not gone through the contents of the same. He cannot say who has written Ex.P-7. The Police did not write the mahazar in his presence. The land in which the deceased committed suicide belong to Mallawwa i.e accused No.2. His signature was taken at the 23 house of the deceased. He is acquainted with the handwriting and signature of the deceased. He cannot say on what date the police had recorded his statement. He admitted that accused No.5 has made a statement before the Tribunal and gave up his possession with respect to 2.16 acres of land in favour of deceased Mahadevappa and his brothers. He has further deposed that there was an agreement that Rs.500/- was to be paid to accused No.5 towards filing of necessary application for handing over the possession of land in favour of Mahadevappa and his brothers. But only Rs.300/- was paid. He admits that accused No.2 has been elected as Chairman of the Gram Panchayat. He is also a member of a Primary Credit Co-operative society. It is also admitted that the deceased had borrowed huge loan towards his family necessity and also towards the marriage of his daughter by spending Rs.70-80,000/-. He do not know the rate of interest. He admitted that 24 accused Nos.1 to 4 never refused to give their consent signature for division of the land but their demand was that some gold was due to them by the deceased and if that is given by the deceased, they are ready to give their consent .
12. PW-5 is only a panch witness for the mahazar Ex.P-10. In his cross-examination, he had deposed that the does not know the contents of the mahazar and as to who had prepared and written the mahazar.
13. PW-6 is an elderly person who resolves the disputes among the villagers. The deceased had asked accused Nos.1 to 4 to give their consent signature but they refused on the ground that whatever was due to them should be given. It is also admitted that there was no such incident in which there was a scuffle between accused Nos.1 to 4 and the deceased Mahadevappa. But admits that there was 25 simply exchange of words among them. In his cross- examination he has deposed that the police never enquired him and never recorded his statement. He does not speak anything about Ex.P-7-death note. According to him, in his opinion, accused Nos.1 to 5 are good people and respectable people in the village. He has deposed that it is correct to state that none of them have committed any bad thing to any villagers. It is admitted that the deceased had borrowed heavy loans towards his family necessity and performed his daughter's marriage. According to him, none of the villagers are of the opinion that since accused Nos.1 to 4 refused to give their consent signature, Mahadevappa committed suicide. He never expected that Mahadevappa would commit suicide because of the reason that accused Nos.1 to 4 refused to give their consent signature.
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PW-7 is the wife of the deceased. According to her, her husband used to ask accused Nos.1 to 4 to give consent signature in order to change the names in the revenue record to their individual names. Accused No.5 who was cultivating the land of the deceased vacated after taking some money. Her husband had borrowed a sum of Rs.75,000/- towards her daughter's marriage. Her husband had approached accused Nos.1 to 4 to give their consent signature. The elders in the village also advised accused Nos.1 to 4 to give their consent but they refused to do so. Her husband returned to the house in the evening. After having dinner, he went to the land. Thereafter, he did not return. Therefore, she went to along with CWs.9 and 10 in search of her husband. They found that the deceased had committed suicide by handing in their land. Since her son was away from the village. After his return on the next day, her son filed a complaint. PW-7 in her 27 cross-examination admits she does not know reading and writing. Further, PW-6 admitted that there was outstanding debt of more than 1.56 lakh payable by her husband and prior to the marriage of her daughter there was outstanding debt of Rs.30,000/-. She has never stated before the police that her husband had borrowed Rs.30,000/- to get back possession of the land from accused No.5. Accused No.5 discontinued cultivation and gave up possession of the land in favour of her husband and his brothers. Further in her cross- examination, she has deposed that herself and accused Nos.1 to 4 were in talking terms. She never approached accused Nos.1 to 4 personally requesting them to give their consent signature. Her husband and Basawwa-CW-7 used to approach the accused for the consent. She denied that since herself, her husband and CW-7 assaulted accused Nos.1 to 4, police had taken them to police station and but certain elders brought them 28 back from the police station stating that the dispute will be resolved in their village. According to her, the police took out a chit from the pocket of the deceased which was inside the banian. The police never read over the contents in Ex.P-7 to her. She admits that she do not know the contents of Ex.P-7. She denied that she had gone to Vannur along with her son and she was not present on the previous day. She admits that signature on Ex.D-1 as that of her husband. She never thought that her husband would commit suicide and her husband never disclosed his intention to do so. He has never stated with the other family members that he would commit suicide since the accused are not giving their consent signature. The evidence of PW-7 would not prove the guilty of the accused in any manner. 29
14. PW-8 is the elder sister of the deceased. She also repeats that her brother used to approach accused Nos.1 to 4 to give their consent to change the record of rights individually. Since they did not give consent her brother committed suicide. She also admitted that she was also given a share in the landed property and also a small extent of plot in the backyard of her house. She filed a civil suit before the Saundatti court seeking her share in the landed properties. She never stated before the police that her brother Mahadevappa borrowed Rs.30,000/- as loan in order to get back the possession of land from accused No.5. She admits that even accused No.5 used to decide the dispute as an elderly person in the village and also even accused Nos.1 and 2 used to resolve the disputes among the villagers in the village. She had also advised her brother to go to Court since accused had refused to give consent. She denied that the wife and son of the 30 deceased were quarreling as he was indebted. She also admitted in the cross examination that accused No.5 never instigated accused Nos.1 to 4 not to give their consent signature at any point of time. Therefore, looking from the above said evidence on record, it is clear that ingredient of Section 107 or 306 of IPC is proved.
15. PW-9 is the investigating officer who conducted inquest panchanama, spot panchanama and got the photographs of the scene of offence. He identified the said photographs at Ex.P-4. He speaks about the seizure of Ex.P-7, identified the complaint at Ex.P-6 and conducted panchanama of the house of the deceased as per Ex.P-10. He got the dead body of Mahadevappa and shifted to Community Health Centre for postmortem examination through police constable 2473. After completing investigation, he filed charge sheet. In his cross-examination, he admitted that PW-3 31 alone had come to the police station to lodge a complaint. He denied that one Irawwa wife of deceased had given information to the police about the commission of suicide but she had not filed any complaint. He has not seized the clothes of the deceased to prove that there was any pocket in the banian worn by the deceased Mahadevappa from which Ex.P-7 was seized. PW-9 admitted in his cross-examination that there is no date on Ex.P-7. He has denied that Ex.P-7 is written by different persons and not by only one person. No corroborative evidence is on record to come to the conclusion that Ex.P-7 was written by the deceased. It was not sent to an handwriting expert to ascertain the veracity of Ex.P-7. This raises a serious doubt in the mind of the Court about the genuiness of Ex.P-7. PW-9 is not aware of some of the facts like enjoyment of land separately or cultivation of land by accused No.5. 32 He denies that on the political influence, he has filed a false case.
16. The evidence of PW-1-doctor during his cross-examination discloses that the stomach of the deceased was empty and he had not taken food and there was no faecal matter found in side the large intestine.
17. On perusal of the evidence of the prosecution witnesses. The alleged death note at Ex.P-7 runs to 5 pages. On perusal of the document, it discloses change in the ink as well in the handwriting. The handwriting does not tally in the manner in which the signature has been done. Signature is not in running handwriting. It is simply written by words. Therefore, the writing on Ex.P-7 should have been similar to that of the writing which is said to be the signature of the deceased. According to the investigating officer though he made effort he could not get the 33 admitted handwriting of the deceased. Therefore, he has not and sent it for handwriting expert for examination. This explanation is totally devoid of any merit and not at all acceptable. The land fallen to the respective sharers in the partition is enjoyed separately without any obstruction from any body, is not in dispute. Accused No.5 who was cultivating the land of the deceased vacated after taking some money. According to PW-7, wife of the deceased, her husband had mortgaged the land by raising loan. Therefore, there is no reason for accused No.5 to give any abetment much less an intentional abetment to the deceased to see that he commits suicide. Though it is stated that the deceased had availed loan, neither the names of the borrowers has been stated nor have been examined in the case. The date when her husband had approached accused Nos.1 to 4 to give their consent signature and the elders in the village to advise accused Nos.1 to 4 to give their 34 consent is not forthcoming. PW-7 in her cross- examination admits that she is an illiterate but she has identified the signature on Ex.P-7 as that of her husband. The important admission in her cross-examination is that the partition between her husband and his brothers took place about 20 years back and they were enjoying their respective shares separately without any obstruction. Even in the absence of consent signature by the brothers, the deceased could have approached the revenue authority by giving a wardi to enter their names separately. Since the partition was admitted by the brothers, the revenue authorities would have held an inquiry and would have passed necessary orders. Even if the revenue authorities had refused to enter their names, the deceased was at liberty to approach the civil court for declaration of his title separately. Hence, legal remedy was open to him. The land which was partitioned about 20 years back and enjoyed 35 peacefully without any obstruction from any quarter, now cannot be allowed to say that on account of refusal by the accused to give their consent signature the deceased committed suicide. Even if the evidence is admitted in toto, then also it does not prove the ingredients of either of Sections 109, 107 and 306 of IPC.
18. Hence, for all the foregoing reasons, I find that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. The trial Court has wrongly appreciated the evidence on records and even the points formulated by the learned Sessions Judge do not involve any of the material particulars which are mentioned in the charge. The trial Court has never made any attempt to find as to whether the fact of the deceased requesting the accused for consent signature is proved which would be sufficient within the meaning of Section 36 107 to constitute instigation which drove the deceased to commit suicide. Therefore, even admitting the said fact of refusal of consent signature by the accused, that by itself is not sufficient to hold that the accused intended that the deceased should commit suicide. After giving a detailed narration of facts in the death note, the deceased would not have failed to sign the document. It is written in the said death note that on account of the torture given by his brothers, he has lost his life and he has committed suicide by hanging.
19. Therefore, looking from any angle, the contents of Ex.P-7 and the evidence of the witnesses do not inspire confidence in the mind of the Court so as to prove the guilt of the accused for the offences leveled against them. Hence, I am of the opinion that learned Sessions Judge has wrongly appreciated the evidence available on 37 record. Even the points raised for consideration by the learned Sessions Judge would disclose that the ingredients of Sections 107 or 306 were not at all kept in mind.
20. For the aforesaid reasons, the impugned judgment and order of conviction and sentence is liable to be set aside. Accordingly, I answer the point for consideration in the negative and pass the following order:
21. The appeal is allowed. The judgment of conviction and sentence dated 8th March 2010 passed by the VI Additional Sessions Judge, Belgaum, in Sessions Case No.170 of 2008 for the offence punishable under Section 306 read with Section 109 of the Indian Penal Code is set aside. The accused are acquitted of all the charges leveled against them. Their bail bonds stand cancelled.
38
Fine amount, if any, has been deposited shall be refunded to them.
Registry is directed to transmit the records to the trial Court concerned along with a copy of this judgment.
Sd/-
JUDGE kmv