Karnataka High Court
Sharada W/O Babaugouda Patil vs The State Of Karnataka on 19 July, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.A No. 2548 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO.2548 OF 2013 (C)
BETWEEN:
1. SHARADA W/O BABAUGOUDA PATIL,
AGE: 46 YEARS, R/O.ARABAGOUDA,
TQ: BYADGI, DIST: HAVERI.
2. FAKKIRAGOUDA S/O BABUGOUDA PATIL,
AGE: 29 YEARS, R/O.ARABAGOUDA TQ: BYADGI, DIST:
HAVERI.
3. SANTOSHKUMAR S/O BABUGOUDA PATIL,
AGE: 28 YEARS, R/O.ARABAGOUDA TQ: BYADGI, DIST:
HAVERI.
4. FAKKIRAPPA HANAMANTHAPPA CHANNAGIRI,
AGE: 42 YEARS, R/O.ARABAGOUDA TQ: BYADGI, DIST:
HAVERI.
5. FAKKIRAPPA MALLAREPPA @ MAILAREPPA KILLI,
AGE: 39 YEARS, R/O.ARABAGOUDA TQ: BYADGI, DIST:
HAVERI.
ANNAPURNA
CHINNAPPA ...APPELLANTS
DANDAGAL
(BY SRI. C.H.JADHAV, SENIOR COUNSEL FOR
Digitally signed by
ANNAPURNA SRI NEELENDRA D.GUNDE AND
CHINNAPPA DANDAGAL
Location: High court of SRI HARSHAVARDHAN M.PATIL, ADVOCATES)
Karnataka, Dharwad
Bench, Dharwad
AND:
THE STATE OF KARNATAKA,
BY CPI BYADGI POLICE,
REP. BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
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CRL.A No. 2548 of 2013
CIRCUIT BENCH
DHARWAD.
...RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 30.01.2013/01.02.2013 PASSED BY
THE FAST TRACK JUDGE, RANEBENNUR IN S.C.NO.14/2009 AND
ACQUIT THE APPELLANTS HEREIN AND THEY BE SET AT LIBERTY.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellants are accused in S.C.No.14/2009 on the file of the Fast Track Court, Ranebennur who have been convicted for the offences punishable under Sections 143, 147, 341, 323, 354, 504 r/w 149 of IPC and sentenced as under:
Offences Punishment Fine Default
sentence
143 IPC Simple - -
imprisonment
for 3 months
147 IPC Simple Rs.500/- -
imprisonment each
for 6 months
341 IPC Simple - -
imprisonment
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CRL.A No. 2548 of 2013
for 15 days
323 IPC Simple - -
imprisonment
for 3 months
354 Simple Rs.500/- -
imprisonment each
for 1 year
504 IPC Simple Rs.500/- -
imprisonment each
for 1 year
306 IPC Simple Rs.1,000/- Each accused
imprisonment each shall under
for 5 years further simple
imprisonment
for a period of
three months
each
2. Being aggrieved by the judgment of conviction and order of sentence, the appellants have preferred the present appeal.
3. Brief facts which are necessary for disposal of the appeal are as under:
A complaint came to be filed on 11.07.2008 by husband of Smt.Shobha. The gist of the complaint averments reveal that the complainant is resident of Byadgi taluk, Arabagonda village. His wife Shobha was working as a representative in Udachammadevi Strishakti -4- CRL.A No. 2548 of 2013 Swasahaya Sangha (hereinafter referred to as 'Sangha', for brevity). Said Sangha had applied for the subsidy/financial assistance from the government and in that regard they had approached Taluka Executive Officer, Byadgi and also Child Development Officer, Byadgi. They also complained about the alleged misdeeds in the Grama Panchayath and anganawadi. Anganawadi workers Sharada Patil, Fakkiragouda, Santosh kumar Patil, Fakkirappa and Fakkirappa s/o Mailarappa being enraged with the complaint made to the Taluka Executive Magistrate and Child Development Officer with regard to the misdeeds committed by them in the Gram Panchayath, had abused his wife in a filthy language and assaulted Shobha in presence of the villagers in the main road of the village. A panchayath was convened in respect of the said incident and the elders of the village reconciled of the dispute between the aforesaid persons and Shobha. When the matter stood thus, after the settlement before the panchayath, the aforesaid persons abused his wife in filthy -5- CRL.A No. 2548 of 2013 language and chased her in the main road and assaulted.
Being unable to bear the ill-treatment made by the appellants, his wife had consumed pesticide in the agriculture land next day around 4.00 p.m. and despite best treatment, she succumbed and therefore sought for action against the appellants.
4. Based on the said complaint, Byadgi Police registered the case in Crime No.256/2008 on 11.07.2008 at about 11.30 a.m. and investigated the matter and filed charge sheet against the appellants.
5. After receipt of charge sheet, learned Magistrate took cognizance and committed the matter to the Sessions Court. The Sessions Court secured the presence of the accused-appellants and framed the charges for the aforesaid offences. Accused persons pleaded not guilty and therefore trial was held.
6. In order to prove the case of the prosecution, in all, 14 witnesses have been examined as PWs.1 to 14.
-6- CRL.A No. 2548 of 2013Prosecution also relied on 15 material documents which were exhibited and marked as Exs.P1 to P15. Torn blouse worn by the deceased was marked as M.O.No.1 on behalf of the prosecution. On conclusion of the recording of the prosecution evidence, accused statement as contemplated under Section 313 Cr.P.C. was recorded. All the appellants denied incriminatory materials put to them. They did not offer any written statement as is contemplated under Section 313(5) Cr.P.C. Thereafter, learned Sessions Judge heard the parties and passed an order of conviction and sentenced the accused-appellants as referred to supra.
7. The validity of the judgment of conviction and order of sentence is questioned by the appellants by raising following grounds:
• The judgment of conviction and order of sentence passed by the Fast Track Judge, Ranebennur is not in accordance with law. Hence the same is liable to be set aside by acquitting the appellants herein.-7- CRL.A No. 2548 of 2013
• It is submitted that, PW-1 is the husband of the deceased who has filed a complaint, PW-4 is an alleged eyewitness who is none other than the son of complaint's uncle, PW-5 is alleged to be an independent eyewitness who was permanent employee under PW-6 who is alleged eyewitness and she is the close relative of the PW-1 complainant. So all the alleged eyewitness are interested witnesses who have naturally supported the case of the prosecution.
• It is submitted that, even though these witness have supported the case of the prosecution, there are material contradictions, colorable version, omissions and improvements among the statements which are contradictory to each other and this fact has not been appreciated by the Trial Court and came to the wrong conclusion holding that the prosecution has proved its case beyond reasonable doubts and convicted the appellants is not sound and sustainable.
• It is submitted that, the case of the prosecution was that the deceased Shoba had requisition to the BDO, BEO and the CDPO of Byadgi Tq against the appellant No.1 & 5 stating that they have misappropriated the funds of the Anganawadi and Gram Panchayat respectively.-8- CRL.A No. 2548 of 2013
As such there was meeting conveyed in the village and during enquiry by the concerned officers opined that there is no substance in the complaint given by deceased Shoba against Appellant No.1 & 5. As such elders of the village conveyed a meeting between the deceased Shoba and Appellants herein and she executed a compromise letter in front of the elders, which was not in dispute. When such being the fact there was no dispute between deceased and the appellants. In the alternative the complainant quarreled with the deceased and bet her stating that she has made a false allegation before the officials and due to the said incident his dignity in the society had come down. On the basis of the said incident between the deceased and the complainant, the deceased had committed suicide. This theory of the defense was not appreciated and believed by the Trial Court and convicted them is highly illegal, capricious and the same is not tenable under law.
• It is an admitted fact that the deceased has contested for Panchayat election against the group of appellants and lost in the said elections as such there was enmity continued between the complainant and his followers against the appellants. As such the appellants were falsely -9- CRL.A No. 2548 of 2013 implicated by the complainant and his henchmen with a cock and bull story, and the police have filed a false Charge Sheet against the appellants, which was not properly appreciated by the Trial Court and convicted the appellants, is not sound and sustainable.
• It is submitted that, PW-1 deposed in his evidence that on 10/07/2008 at about 05-00PM when he was in his house one Honnappa Kolur(CW-16) informed that his wife had consumed poison at his land and immediately PW-1, PW-4 had been to the spot at that time she was battling for her life and on enquiry she told that due to the incident dated 09/07/2008 she was ashamed and defamed, hence she had consumed poison. However PW-4 stated that he along with PW-1 & CW-16 had been to the spot. PW-6 Anasuya deposed that she too had been to the spot wherein the deceased was lying in the field, however there are material contradictions among their statements to the effect of person visiting the spot.
• It is submitted that, PW-1 & 4 deposed that the deceased was talking when they visited the spot. However PW6 Anasuya deposed that the deceased was not in the position to speak anything, which is a material contradiction which
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is not properly appreciated by the Trial Court and convicted the appellants, without appreciating the cross examinations made by the defense and the same has led to miscarriage of justice.
• It is submitted that, there is an inordinate delay in filing the complaint as the incident had taken place on 09/07/2008 and the deceased consumed poison on 10/07/2008 and the FIR was registered on 11/07/2008 and there is no explanation for the delay caused in filing the complaint which involves lot of improvements, concoctions in the prosecution story, which was not properly appreciated by the Trial Court.
• It is submitted that, some of the prosecution witness deposed that the deceased was assaulted and her clothes were torn by the appellant No.1 to 3 and some of the alleged eyewitness deposed that the accused have made the deceased naked on 09/07/2008. As such there are many contradictions among the versions of the alleged eyewitness, and there is clear doubtful case of the prosecution story. Hence the same is not reliable.
• It is submitted that, some of the alleged eyewitness have deposed that they have given
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their statements at Haveri Police Station and some of them deposed that they have given their statements at Byadgi Police Station, which are contrary to their statements recorded by the
10. Hence they are cooked up witness created to suit the case of the prosecution, as they are the interested witness to the complainant.
• It is submitted that, the conviction rest only on the evidence of PW-1, 4 to 6 who are the alleged eye witness and the other witnesses are the pancha witness, police officials, doctors, engineers etc, and the other witness have supported the case of the prosecution in the official capacity.
• The circumstances upon which the trial court has relied to convict the appellants are not sufficient to bring home the guilt of the appellants. As such the Judgment & Sentence passed by the Fast Track Judge, Ranebennur is liable to be set aside by acquitting the appellants herein.
• It is submitted that, the sentence imposed by the trial Court is also highly excessive and exorbitant and the same is not sound and sustainable.
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CRL.A No. 2548 of 20138. Reiterating the above grounds, Sri C.H.Jadhav, learned senior counsel for the appellants contended that the prosecution has miserably failed in establishing any one of the ingredients to attract the offence under Section 306 IPC which is the major offence and so also no ingredients are found to attract the other offences as against the appellants and sought for allowing the appeal.
9. He pointed out that the incident said to have occurred on 09.07.2008 by virtue of the application given by the wife of the complainant to the Child Development Officer on 08.07.2008. On 09.07.2008 itself, the matter was compromised by convening the panchayath and in the presence of the elders of the village. When such being the situation, on 10.07.2008 at about 4.00 p.m. the deceased has consumed poison in her agriculture land which has been brought to the notice of the complainant by a neighbouring agriculture labourer and soon thereafter he has rushed to the spot and shifted her to the Haveri District Hospital. He also pointed out that complainant and
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CRL.A No. 2548 of 2013police were very much present in the hospital on 10.07.2008 around 7.00 p.m. and no complaint came to be lodged immediately nor police registered a case sue-
moto as offence under Section 306 IPC is a cognizable offence. Instead after due deliberation with the concerned, complainant has belatedly lodged the complaint on 11.07.2008 at about 11.15 a.m. in the Government Hospital which clearly shows that taking advantage of the unnatural death of the wife of the complainant, complainant has filed a false case against the appellants herein and none of the villagers are examined by the investigation agency except the relatives of Shobha which shows that the incident as alleged by the prosecution is a false and therefore sought for allowing the appeal.
10. Sri.C.H.Jadhav, learned counsel for the appellants in support of his arguments, has relied on the following judgements. Relevant portions of the said judgements are culled out hereunder for ready reference:
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1. Sanju Alias Sanjay Singh Sengar vs. State of M.P. (2002) 5 SCC 371
"11. In Ramesh Kumar V. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate , in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:
"A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty.""
2. Ude Singh and Others vs. State of Haryana (2019) 17 SCC 301 "13. The offence of abetment of suicide is specified in Section 306 IPC as under:
"306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
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CRL.A No. 2548 of 201313.1. The expression "abetment" within the meaning of Indian Penal Code is defined as follows:
"107. Abetment of a thing.- A person abets the doing of a thing, who-
First. - Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
13.2. The offence relating the words, gestures or acts intended to insult the modesty of woman is specified in Section 509 IPC as under1:
"509. Word, gesture or act intended to insult the modesty of a woman. - Whoever, intending to insult the modesty of any 1 Section 509 IPC was amended by Act No. 13 of 2013 in the present form with enhancement of the term of simple imprisonment to three years in place of the earlier term of one year. woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such
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woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine."
14. When the accusation in the present case has its genesis in certain acts and utterances attributed to the accused, the meaning and expanse of the expression "abetment", particularly on its operation in relation to the offence of "abetment of suicide", is required to be dilated upon. Hence, before proceeding further, apposite it shall be to take note of the case law as cited and as relevant in this matter.
14.1. In the case of Ramesh Kumar (supra), a three-Judge bench of this Court held that the ingredients of Section 306 IPC were not satisfactorily proved so as to implicate and punish the accused for the same. The facts of the case leading to the aforementioned decision had been that the deceased was married to the accused for about a year. The deceased committed suicide by pouring kerosene and setting herself on fire in the kitchen. On the day of incident, the accused had refused to take the deceased to her sister's house and in the quarrel that ensued, the accused- husband told the deceased-wife that she was free to do whatever she wished to and to go wherever she wanted to. The accused attempted to save her by putting a bedsheet around her body and himself suffered burns consequently. The deceased had written a letter to her husband-accused in her diary that he had made her free to go wherever she liked but she was not having any place to go and now she was free of her word not to commit suicide. In her dying declaration too, she stated that she had a quarrel with her husband who told her to go wherever she wanted to and thereafter, she set herself ablaze. The accused-appellant was convicted by the Trial Court for the offences under Sections 306 and 498-A IPC and his conviction was upheld by the High Court. In further appeal, after
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CRL.A No. 2548 of 2013examining the evidence led in by the parties and taking note of all the surrounding factors, this Court, while maintaining the conviction of the appellant under Section 498-A IPC, set aside his conviction for offence under Section 306. This Court observed and held inter alia, as under:
"19. ...... Presumably the accused may have said some such thing - you are free to do whatever you wish and go wherever you like. The deceased being a pious Hindu wife felt that having being given in marriage by her parents to her husband, she had no other place to go excepting the house of her husband and if the husband had "freed" her she thought impulsively that the only thing which she could do was to kill herself, die peacefully and thus free herself according to her understanding of the husband's wish. Can this be called an abetment of suicide? Unfortunately, the trial court misspelt out the meaning of the expression attributed by the deceased to her husband as suggesting that the accused had made her free to commit suicide. Making the deceased free - to go wherever she liked and to do whatever she wished, does not and cannot mean even by stretching that the accused had made the deceased free "to commit suicide" as held by the trial court and upheld by the High Court.
20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case
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an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
21. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73] , this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences, in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
(Underling supplied for emphasis) 14.2. In the case of Pawan Kumar (supra), the allegation against the accused was that as he had eloped with the deceased girl, he thought that she was responsible for the criminal proceedings against him by her family and hence, subjected her to abject teasing despite she standing with him and having him acquitted of the offences imputed. On one occasion, while the deceased was staying at her parent's home, he threatened to kidnap her and this led to her pouring kerosene over herself and setting herself ablaze. In her dying declaration, she wrote a letter narrating that the accused was responsible for the step that she had taken. Though the Trial Court had acquitted the accused of all charges, on appeal, the order of acquittal was set aside by the High Court and the accused was convicted under Section 306 IPC and was sentenced to rigorous
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CRL.A No. 2548 of 2013imprisonment for a period of seven years together with fine. In further appeal, another three-Judge Bench of this Court upheld the order of the High Court with reference to the principles relating to the offence of abetment of suicide. This Court referred to several decisions, including that in the case Ramesh Kumar (supra), and observed, inter alia, as under:
"34. The word ''abetment'' has not been explained in Section 306 IPC. In this context, the definition of abetment as provided under Section 107 IPC is pertinent. Section 306 IPC seeks to punish those who abet the commission of suicide of other. Whether the person has abetted the commission of suicide of another or not is to be gathered from facts and circumstances of each case and to be found out by continuous conduct of the accused, involving his mental element.......
xxx xxx xxx
36. The word "instigate" literally means to goad, urge forward, provoke, incite or encourage to do an act. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in (express) words or maybe by (implied) conduct.
37. The word "urge forwards" means to advise or try hard to persuade somebody to do something, to make a person to move more quickly in the particular direction, specially by pushing or forcing such person. Therefore, a person instigating another has to "goad" or "urge forward" the latter with the intention to provoke, incite or encourage the doing of an act by the latter. In order to prove abetment, it must be shown that the accused kept on urging or annoying the deceased by words,
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taunts until the deceased reacted. A casual remark or something said in routine or usual conversation should not be construed or misunderstood as "abetment".
xxx xxx xxx
43. Keeping in view the aforesaid legal position, we are required to address whether there has been abetment in committing suicide. Be it clearly stated that mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of the accused that led a person to commit suicide, a conviction in terms of Section 306 IPC is not sustainable. A casual remark that is likely to cause harassment in ordinary course of things will not come within the purview of instigation. A mere reprimand or a word in a fit of anger will not earn the status of abetment. There has to be positive action that creates a situation for the victim to put an end to life.
44. In the instant case, the accused had by his acts and by his continuous course of conduct created such a situation as a consequence of which the deceased was left with no other option except to commit suicide. The active acts of the accused have led the deceased to put an end to her life. That apart, we do not find any material on record which compels the Court to conclude that the victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged. On the other hand, the accused has played active role in tarnishing the self-esteem and self-respect of the victim which drove the victim girl to commit suicide. The cruelty meted out to her has, in fact, induced her to extinguish her life spark.
45. As is demonstrable, the High Court has not reversed the judgment of acquittal solely on the
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CRL.A No. 2548 of 2013basis of the dying declaration. It has placed reliance on the evidence of the parents and also other witnesses. It has also treated the version of the Pradhan of the Gram Panchayat as credible. All these witnesses have deposed that the accused after his acquittal engaged himself in threatening and teasing the girl. He did not allow her to live in peace.
46. The harassment caused to her had become intolerable and unbearable. The father had deposed that the girl had told him on number of occasions and he had complained to the Pradhan. All these amount to active part played by the accused. It is not a situation where a person is insulted on being asked to pay back a loan. It is not a situation where someone feels humiliated on a singular act. It is a different situation altogether. The young girl living in a village was threatened and teased constantly. She could not bear it any longer. There is evidence that the parents belong to the poor strata of the society. As the materials on record would reflect, the father could not afford her treatment when case of his daughter was referred to the hospital at Chandigarh. The impecuniosity of the family is manifest. It is clearly evident from the materials brought on record that the conduct of the accused was absolutely proactive."
(Underling supplied for emphasis) 14.3 In the case of Pawan Kumar (supra), this Court also expressed serious concern over the menace of eve- teasing and its adverse impact on the civilized society while indicating the affirmative rights of a woman with reference to Articles 14, 15 and 21 of Constitution of India. This Court referred to an earlier decision and observed as under: -
"47. .....We are at pains to state that in a civilised society eve teasing is causing harassment to women in educational institutions, public places, parks, railway stations and other public places
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CRL.A No. 2548 of 2013which only go to show that requisite sense of respect for women has not been socially cultivated. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitutions as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve teasing. It affects the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution. That apart creates an incurable dent in the right of a woman which she has under
Article 15 of the Constitution. One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with dignity and freedom.......
48. In a civilised society male chauvinism has no room. The Constitution of India confers the affirmative rights on women and the said rights are perceptible from Article 15 of the Constitution. When the right is conferred under the Constitution, it has to be understood that there is no condescension. A man should not put his ego or, for that matter, masculinity on a pedestal and abandon the concept of civiliaty. Egoism must succumb to law. Equality has to be regarded as the summum bonum of the constitutional principle in this context. The instant case portrays the deplorable depravity of the appellant that has led to a heart-breaking situation for a young girl who has been compelled to put an end to her life. Therefore, the High Court has absolutely correctly reversed the judgment of acquittal and imposed the sentence. It has appositely exercised the jurisdiction and we concur with the same."
14.4. In the case of Madan Mohan Singh (supra), the driver of the accused had alleged in his suicide note that the accused had driven him to the extent of committing suicide. However, on evidence, it was
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CRL.A No. 2548 of 2013found that the deceased had a grudge against his superior and even though the deceased felt that he was wronged at some point in time, there was nothing available on record to prove that the accused had done anything to instigate the deceased to commit suicide. Hence, this Court observed as under:
"10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306 IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide. "
14.5. We may also refer to the decision in S. S. Chheena v. Vijay Kumar Mahajan and Ors: (2010) 12 SCC 190, where this Court reiterated on the essentials of the offence under Section 306 IPC as under:-
"25. 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, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
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CRL.A No. 2548 of 2013(Underling supplied for emphasis) 14.6. In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi): (2009) 16 SCC 605, this Court referred to the decision in Ramesh Kumar (supra) and, while pointing out the complexities related with the determination of the question as to the cause of suicide, expounded on the relevant principles in the following:-
"19. As observed in Ramesh Kumar (supra), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
20. .............The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss or self-respect. Each of
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CRL.A No. 2548 of 2013these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self- protection or an escapism from intolerable self."
(Underling supplied for emphasis) 14.7. In the case Amalendu Pal v. State of W.B.: (2010) 1 SCC 707, this Court, after reference to several past decisions, held as follows:-
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
(Underling supplied for emphasis)
15. Thus, "abetment" involves a mental process of instigating a person in doing something. A person abets the doing of a thing when: (i) he instigates any person to do that thing; or (ii) he engages with one or more persons in any conspiracy for the doing of that thing; or (iii) he intentionally aids, by acts or illegal omission, the doing of that thing. These are essential to complete the abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do anything.
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CRL.A No. 2548 of 201316. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1 For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four- corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self- respect of the victim, which eventually draws the victim to commit suicide, the accused may be held
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CRL.A No. 2548 of 2013guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.
16.2. We may also observe that human mind could be affected and could react in myriad ways; and impact of one's action on the mind of another carries several imponderables. Similar actions are dealt with differently by different persons; and so far a particular person's reaction to any other human's action is concerned, there is no specific theorem or yardstick to estimate or assess the same. Even in regard to the factors related with the question of harassment of a girl, many factors are to be considered like age, personality, upbringing, rural or urban set ups, education etc. Even the response to the ill-action of eve-teasing and its impact on a young girl could also vary for a variety of factors, including those of background, self- confidence and upbringing. Hence, each case is required to be dealt with on its own facts and circumstances."
3. M.Arjunan vs. State represented by is Inspector of Police (2019) 3 SCC 315
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CRL.A No. 2548 of 2013"7. The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."
4. State of West Bengal vs. Indrajit kundu and Others (2019) 10 SCC 188 "11. From the material placed on record, it is clear that respondents are sought to be proceeded for charge under Section 306/34 mainly relying on the suicide letters written by the deceased girl and the statements recorded during the investigation. Even according to the case of de facto complainant, respondent Nos. 2 and 3 who are parents of first respondent shouted at the deceased girl calling her a call-girl. This happened on 05.03.2004 and the deceased girl committed suicide on 06.03.2004. By considering the material placed on record, we are also of the view that the present case does not present any picture of abetment allegedly committed by respondents. The suicide committed by the victim cannot be said to be the result of any action on part of respondents nor can it be said that commission of suicide by the victim was the only course open to her due to action of the respondents. There was no goading or solicitation or insinuation by any of the respondents to the victim to commit suicide. In the case of Swamy Prahaladdas vs. State of M.P. and Anr.3 3 1995 Supp (3) SCC 438 Crl.A.No.2181 of 2009 this Court while considering utterances like "to go and die"
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during the quarrel between husband and wife, uttered by husband held that utterances of such words are not direct cause for committing suicide. In such circumstances, in the aforesaid judgment this Court held that Sessions Judge erred in summoning the appellant to face the trial and quashed the proceedings.
12. In the judgment in the case of Ramesh Kumar vs. State of Chhattisgarh4 this Court has considered the scope of Section 306 and the ingredients which are essential for abetment as set out in Section 107 IPC. While interpreting the word "instigation", it is held in paragraph 20 as under:
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending 4 (2001) 9 SCC 618 Crl.A.No.2181 of 2009 the consequences to actually follow cannot be said to be instigation."
5. Kanchan Sharma vs. State of Uttar Pradesh and Another (2021 SCC ONLINE 737 (SC)) "9. Having heard learned counsel on both sides, we have perused the impugned order and other material placed on record. Except the self-serving statements of the complainant and other witnesses stating that deceased was in love
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CRL.A No. 2548 of 2013with the appellant, there is no other material to show that appellant was maintaining any relation with the deceased. From the material placed on record it is clear that on the date of incident on 04.05.2018 deceased went to the house of the appellant and consumed poison by taking out from a small bottle which he has carried in his pocket. Merely because he consumed poison in front of the house of the appellant, that itself will not indicate any relation of the appellant with the deceased. 'Abetment' involves mental process of instigating a person or intentionally aiding a person in doing of a thing. Without positive act on the part of the accused to instigate or aid in committing suicide, no one can be convicted for offence under Section 306, IPC. To proceed against any person for the offence under Section 306 IPC it requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. There is nothing on record to show that appellant was maintaining relation with the deceased and further there is absolutely no material to allege that appellant abetted for suicide of the deceased within the meaning of Section 306, IPC. Even with regard to offence alleged under Section 3(2)(v) of the Act it is to be noticed that except vague and bald statement that the appellant and other family members abused deceased by uttering casteist words but there is nothing on record to show to attract any of the ingredients for the alleged offence also. This Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi)1 had an occasion to deal with the aspect of abetment. In the said case this Court has opined that there should be an intention to provoke, incite or encourage the doing of an act by the accused. Besides, the judgment also observed that each person's suicidability pattern is different from the other and each person has his own idea of self-esteem and self-respect. In the said judgment it is held that it is impossible to
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CRL.A No. 2548 of 2013lay down any straightjacket formula dealing with the cases of suicide and each case has to be decided on the basis of its own facts and circumstances. In the case of 1 (2009) 16 SCC 605 [email protected].(Crl.)No.7554 of 2019 Amalendu Pal @ Jhantu v. State of West Bengal2 in order to bring a case within the purview of Section 306, IPC this Court has held as under :
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC." In the judgment in the case of S.S. Chheena v. Vijay Kumar Mahajan & Anr.3 this Court reiterated the ingredients of offence of Section 306 IPC. Paragraph 25 of the judgment reads as under :
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"25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive 2 (2010) 1 SCC 707 3 (2010) 12 SCC 190 [email protected].(Crl.)No.7554 of 2019 act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide." In the judgment in the case of Rajiv Thapar & Ors. v. Madan Lal Kapur4 this Court has considered the scope of the provision under Section 482, Cr.PC and has laid down the steps which should be followed by the High Court to determine the veracity of a prayer for quashing of proceedings in exercise of power under Section 482, Cr.PC.
Paragraph 30 containing the four steps read as under :
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1.Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the
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complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the 4 (2013) 3 SCC 330 [email protected].(Crl.)No.7554 of 2019 material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4.Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
11. Per contra, learned High Court Government Pleader vehemently opposes the appeal grounds by contending that the chronological events referred to by the counsel for appellants is no doubt true, but for the incident that occurred in the night at around 8.00 p.m., has had a real impact on the very character of the deceased
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CRL.A No. 2548 of 2013inasmuch as the appellants have pulled the saree and torn the blouse and also tried to rape her and thereby, the deceased was morally depressed and next day in the agriculture land, she has consumed pesticide and committed suicide and but for the second incident that occurred on 09.07.2008 in the night hours in the main road wherein the appellants ill-treated the deceased by tearing her blouse and trying to outrage her modesty and also commit rape, she would not have consumed pesticide and therefore the prosecution has successfully established all ingredients to attract the offence under Section 306 IPC which is the major offence in the case and thus sought for dismissal of the appeal. He also pointed out that the material on record especially the charge sheet witnesses clearly depose that the appellants were very much present and including the 1st appellant-Smt.Sharada instigated the other appellants to take revenge against the deceased for having reported the alleged misdeeds in the Gram Panchayath and therefore, the action attributable to each
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CRL.A No. 2548 of 2013of the appellant would be sufficient enough to conclude that they have abated the offence of committing suicide by the deceased and therefore all ingredients to attract the offence under Section 109 of the IPC is proved by the prosecution by placing cogent and convincing evidence on record which has been rightly appreciated by the learned trial Judge while passing the impugned judgment and thus sought for dismissal of the appeal.
12. Further, learned High Court Government Pleader submits that there cannot be any dispute as to the principles of law enunciated in the decisions relied on by the learned counsel for the appellants. However, the facts of the present case are altogether different and in criminal cases, two cases are identical and therefore, the said decisions are not applicable to the facts of the present case and sought for dismissal of the appeal.
13. In view of the rival contentions of the parties, this Court perused the materials on record meticulously.
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CRL.A No. 2548 of 2013On such perusal of the material on record, following points would arise for consideration:
1. Whether the prosecution has successfully established that the action attributable to the appellants inasmuch as they tried to misbehave with the deceased by tearing her blouse and also pulling her saree in the main road of the village and also assaulted her and tried to outrage her modesty whereby they have sufficiently abetted the deceased to commit suicide by consuming pesticide on 10.07.2008 and thus all ingredients to attract the offences alleged against the appellants?
2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference by this Court?
3. What order?
14. Regarding Point Nos.1 and 2:-In order to establish the case of the prosecution, complainant is examined as PW1. He deposed in line with the complaint averments with graphic details as to what transpired on 09.07.2008. In his cross-examination, he also identified
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CRL.A No. 2548 of 2013the torn blouse of his wife which was marked as M.O.No.1.
He identified the complaint, which was marked as Ex.P1.
He identified his signature on the spot mahazar at Ex.P2(a). He also identified his signature on the seizure panchanama at Ex.P3(a). He identified the photographs taken by the investigation agency at the time of conducting the spot mahazar at Exs.P4 and P5. He identified the photographs of the deceased as also place where the deceased committed suicide by consuming pesticide.
15. In his cross-examination, it is elicited that he had studied up to 6th standard and he possessed a mobile telephone at the time of incident. It is elicited that Udachamma Strishakti Swasahaya Sangha has got 20 members and deceased was one among them. He admits that Anasuya (PW6) is also one of the members. It is elicited that before death, his wife was the treasurer in the said Sangha and there was a missing of Rs.10,000/- in the Sangha account held in the Bank. It is also elicited that
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CRL.A No. 2548 of 2013apart from the members of the Sangha, none else could have an access to the account of the Sangha in the bank.
It is elicited that earlier treasurers had also used the money deposited into the Sangha for their personal use.
He admits that he has not personally verified the account of the Sangha. It is further elicited that after the complaint came to be lodged on 08.07.2008 with the Child Development Officer, there was a panchayath convened and in the panchayath there was a settlement as to the allegations and counter allegations.
16. It is further elicited that the compromise entered into by the rival parties was reduced into writing and he admits that the contents of the compromise are true. It is elicited that he has seen the house of Prakashgouda and Sharada Patil's house is situated next to the house of Prakashgouda and houses of accused Nos.2 and 4 situate about 200 feet away from the house of Sharada Patil and when he was returning to the house, he did not feel that he should take a different route other
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CRL.A No. 2548 of 2013than the house of Sharada Patil. It is also elicited that the scribe of the complaint is by name Sri.P.D.Patil.
17. PW.2 is younger brother of PW.1 who has come to know about the incident and he has participated in spot mahazar and also seizure mahazar. He has supported the case of the prosecution and his evidence is formal in nature.
18. PW.3 is the witness to inquest mahazar. His evidence is formal in nature. PW.4 is brother of PW.1 who is an alleged eyewitness to the second incident that occurred on 09.07.2008. He has supported the case of the prosecution by deposing in line with the examination-in-
chief of PW.1. In his cross-examination, it is elicited that he has not seen the records of Sangha. He has also stated that he came to know about the incident 2-3 days later when there was a complaint lodged with regard to the misdeeds of the Gram Panchayat. He has answered that the incident has occurred around 7.30 p.m. It is also elicited that during the alleged scuffle, bangles might have
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CRL.A No. 2548 of 2013been broken, but he has not given his attention to the same. He admits that petticoat worn by Shobha was not torn but only the blouse had been torn and the said torn was near chest portion of the blouse. He has stated that the whole incident might have occurred for about ten minutes or half an hour. It is elicited that after the said quarrel, they had left for their respective houses.
19. PW.5-Nagappa is acquainted with the complainant and the deceased and also accused persons.
He has supported the case of the prosecution by stating that he has also witnessed the incident wherein among the accused, accused No.3-Santosh sat on the chest portion of Shobha and assaulted her and torn the blouse and he was also pulling her petticoat and at that juncture accused Nos.4 and 5 had held the husband of the Shobha tightly so as to prevent him from rescuing Shobha. In his cross-
examination, it is elicited that they did not try to rescue Shobha and when accused No.3 pulled the saree, saree was removed from her body and he did not offer any
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CRL.A No. 2548 of 2013resistance for the said action of accused under the fear of accused persons.
20. PW.6-Anasuya is the co-member along with deceased in the Sangha. She has supported the case of the prosecution. She also deposed about the complaint made to CDPO on 08.07.2008. In her cross-examination, it is elicited that earlier also the members of the Sangha had protested in the national highway with regard to the misdeeds that has taken place in the Gram Panchayat, Gundenahalli. It is also elicited that there was a correspondence received by the CDPO office that there was no money in the account of Sangha.
21. PW.7 is the Assistant Engineer, who drafted the spot sketch. His evidence is formal in nature. PW.8 is the FIR carrier. His evidence is also formal in nature. PW.9 is the constable, who accompanied PW.14 to register the complaint. His evidence is formal in nature. PW.10 is SHO who received the complaint Ex.P.1 and registered criminal case and handed over further investigation to CPI.
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CRL.A No. 2548 of 201322. PW.11 is the further investigating officer who deposed about conducting of further investigation by visiting the hospital and conducting inquest mahazar and sending the dead body to the postmortem, conducting spot mahazar, seizure of MO.1-blouse, then recording of statements of charge sheet witnesses, preparation of spot sketch and handing over further investigation to PW.12 as he was transferred.
23. In his cross-examination, suggestion made to him that he came to know from the recorded statements of the charge sheet witnesses is false is denied by him.
24. PW.12 is the person who received further investigation from PW.11 and after receipt of FSL report filed charge sheet. His evidence is formal in nature.
25. Doctor who conducted autopsy on the dead body of the deceased is examined as PW.13. He deposed about conducting of postmortem and filing report as per
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CRL.A No. 2548 of 2013Ex.P.14. His evidence is formal in nature as there is no dispute as to the cause of the death.
26. PW.14 is the ASI who proceeded to Haveri District Hospital along with PW.9 and took complaint from the complainant vide Ex.P.1 and returned the same to Byadagi police and handed over it to PW.10. His evidence is formal in nature.
27. The above evidence on record is sought to be re-appreciated by the learned counsel for the appellants.
28. In order to attract the offence under Section 306 of IPC, the prosecution has to establish the following essential ingredients:
(a) Essential Ingredients.-An offence under Section 306 IPC has following essential ingredients:
(i) That any person committed suicide;
(ii) That such a commission of suicide by the consequence of an abetment;
(iii) That the abetment was made by the accused.
(b) Evidence.-To bring home a charge under Section 306 of the Indian Penal Code, 1860 the prosecution is to prove (a) that the victim of the
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offence committed suicide (b) that the accused abetted the commission of the said offence, such abetment being one under Section 107 IPC.
(c) Procedure.-The offence is cognizable, not compoundable and non-bailable. It is triable by Court of Session.
(d) Model charge.-I___(name and designation and office of the Sessions Judge etc.) do hereby charge you (name of the accused) as follows:
That on or about ___ day of ___ at ___, one AB committed suicide by __ (by hanging or taking poison or burning himself or herself etc. delete which is not applicable) and you abetted the commission of the suicide (the act may be specified) and thereby committed an offence punishable under Section 306 of the Indian Penal code, 1860 and within my cognizance.
And I do hereby direct you to be tried by this Court on the said charge."
29. Likewise, in order to prove the abetment, following ingredients are to be established by the prosecution:
"(a) Ingredients of offence.-Abetment is constituted by
(i) instigating a person to commit an offence; or
(ii) engaging in a conspiracy to commit it; or
(iii) intentionally aiding a person to commit it.
(b) Evidence.-
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CRL.A No. 2548 of 2013(i) by the Prosecution.-Prosecution has to lead direct evidence (if available), or circumstantial evidence, to prove the complicity of the abettor with all steps or transactions, which led to the actual commission of the offence. Prosecution may lead evidence to prove or show the conduct of the accused, both before and after the commission of the offence.
(ii) By the defence.-Defence may prove or show that the accused never instigated, aided, abetted or counseled in the commission of the main offence. It may also be shown that the thing said to be abetted is not an offence.
(c) Charge.-A separate charge has to be framed under Section 109. However, the prosecution can succeed even in the absence of any such charge. If it is shown that the accused had clear notice of all the facts and that there was no prejudice occasioned to him, the prosecution would succeed."
30. With the above legal requirements when the material on record is appreciated, as could be seen from the complaint averments and the oral testimony of PW.1, deceased is the wife of PW.1 who was the member of Sangha. She has given a complaint to the CDPO and Executive Officer of Taluk Panchayat, Byadagi complaining that the granted amount is misappropriated by the Gram Panchayat members. Appellants being the Gram Panchayat members, raised objections for the same. In
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CRL.A No. 2548 of 2013respect of the said dispute, there was a panchayat convened on 09.07.2008. After the panchayat was convened, elders of the village enquired the deceased and Gram Panchayat members and a settlement was arrived at and which was also reduced into writing.
31. PW.1 admits that there was settlement and the contents of the settlement are true. However, for the reasons best known to the parties and to the learned District Judge, the said settlement arrived at in the panchayat that was convened on 09.07.2008 was not marked as a document before the Court. Since the complainant admit that there was settlement, there could not be any difficulty in accepting the contentions on behalf of the appellants that differences between the deceased and the appellants got settled in respect of the complaint given to the CDPO on 09.07.2008 in the panchayat.
32. According to the complaint averments and the oral testimony of PW.1, after the said panchayat took place, again in the evening around 7 o'clock when they
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CRL.A No. 2548 of 2013were returning to the houses, all the appellants with an intention to take revenge on the deceased, intercepted her free movement and all of a sudden they picked up quarrel and abused the deceased in filthy language and physically assaulted her. Accused Nos.4 and 5 held the complainant tightly and other accused persons misbehaved with the deceased. Among them, accused No.3 sat on the chest portion of the deceased and torn the blouse and also tried to take away other clothes. Ultimately, the appellants were unsuccessful in further ill-treating the deceased as other villagers came there and the complainant and deceased went home so also other eyewitnesses.
33. No complaint came to be lodged in respect of the incident that has occurred around 7.00 p.m. on 09.07.2008 either by the deceased or by PW.1.
34. According to the prosecution, in view of the said incident, deceased was mentally depressed and she could not bear the insult that has been caused to her in the second incident and therefore, decided to end her life and
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CRL.A No. 2548 of 2013hence, on the next day around 4 o'clock she went to the agricultural land and consumed pesticide. Till the person who saw the deceased in a precarious condition and intimated PW.1, PW.1 was not aware of the incident, wherein the deceased has consumed pesticide. According to the complainant, the said incident was reported to him by Honnappa. Though he has been cited as charge sheet witness, for the reasons best known to the prosecution, he has not even examined by the prosecution before the trial Court. Further, on hearing the information about consumption of pesticide by the deceased, PW.1 and others rushed to the spot and shifted Shobha in an autorickshaw and brought her to Haveri District Hospital.
The incident was also reported to Byadagi police. They visited the said hospital around 7.00 p.m. on 10.07.2008.
However, by the time police visited the hospital, Shobha had breathed her last. No efforts were made by Byadagi police to register case on 10.07.2008 itself nor complainant lodged complaint with police on 10.07.2008
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CRL.A No. 2548 of 2013itself. Further, the material on record does not indicate what is the condition of Shobha when she was brought to the District Hospital. No efforts are forthcoming on record to find out whether any efforts were made to record the dying declaration of Shobha nor it is the case of the complainant that Shobha was found dead near the agricultural land itself.
35. All these facts when viewed cumulatively, what exactly is the reason for Shobha to commit suicide is not forthcoming on record clearly. In the absence of any such material, dying declaration or anything that has been told by Shobha to PW.1, the contents of the complaint assumes importance. In the contents of the complaint also, vague allegations are made that after the compromise in the panchayat, second incident took place, wherein Shobha has been assaulted and ill-treated by the appellants herein. Admittedly, the complaint came to be lodged on 11.07.2008 at about 11.15 a.m. in the hospital itself recorded by PW.14 who was accompanied by PW.10.
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CRL.A No. 2548 of 201336. The scribe of Ex.P.1 is one P.D.Patil has not been cited as witness nor examined by the prosecution.
However, since there is a delay of more than 15 hours from the date Byadagi police visited hospital on 10.07.2008 to 11.07.2008, the contents of the complaint will have to be viewed cautiously. In other words, there was sufficient time for the complainant to deliberate with kith and kin to file a complaint against the appellants herein.
37. In a matter of this nature, it is not uncommon that a person taking advantage of an unnatural death or mishap, try to implicate persons who are not even responsible for the incident. In the case on hand, in respect of the alleged complaint that has been lodged by the deceased with CDPO on 08.07.2008, the matter has been compromised on 09.07.2008 and there was no necessity whatsoever at all for the appellants to revisit the issue and pick up a quarrel with the deceased and the complainant. Assuming so, such an incident has happened,
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CRL.A No. 2548 of 2013eyewitnesses to the second incident that occurred on 09.07.2008 at about 7.00 p.m., who are the relatives of the deceased would not keep quite in not preventing the appellants party from misbehaving with the deceased.
More so, when the incident is said to have occurred in the main road of the village, what are the other villagers were doing, especially panchayatdars is not forthcoming on record. The investigation agency has not even cared to find out about the settlement in the panchayat nor cited any of the panchayatdars as charge sheet witnesses.
Therefore, to that extent the investigation is perfunctory in nature.
38. The charge sheet witnesses are interested witnesses. It is now settled principles of law that interested testimony cannot be thrown out in toto. In such circumstances, while appreciating the testimony of interested witnesses, the Court has to exercise extra care and caution to find out the false implication of appellants herein.
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CRL.A No. 2548 of 201339. In the case on hand, PW.2 is the mahazar witness and PW.4 is the alleged eyewitness. When a sister-in-law is being ill-treated by pulling her saree and blouse that too in a public place, in the main road of a village, which brother-in-law would keep quite in the fear of accused and does not even intimate the elders or police and would go away to the house as if nothing has happened, is very hard to digest and such testimony cannot be relied upon, to record an order of conviction against the appellants. Conduct of PW.4 is totally unnatural and only inference the Court can draw is PW.4 was not at all present or the incident itself has not occurred as is tried to be portrayed by the prosecution.
Further, if an incident has occurred on 09.07.2008, till up to 4.00 p.m. when Honnappa came and intimated PW.1 about the consumption of poison by the deceased, what was deceased doing, is again a question that remains un answered by the prosecution. At least she would have contacted the panchayatdars who compromised the
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CRL.A No. 2548 of 2013dispute between the accused party and herself with regard to the alleged misdeeds. In the absence of any such material placed by the prosecution, it is difficult to accept the prosecution version that on 09.07.2008 again at 7.00 p.m. the accused party assembled and with an intention to take revenge tried to misbehave with deceased which resulted in abetting the deceased to commit suicide on the next day around 4.00 p.m. by consuming pesticide.
40. It is also pertinent to note that the material evidence on record, especially testimony of PW.5 shows that MO.1 blouse was torn on the chest region. What has been seized by the police MO.1 does not depict that blouse was torn on the chest region. Further, no material is forthcoming as to what prevented the husband of the deceased to accompany her to the agricultural operations if she was really mentally depressed on account of second incident that took place on 09.07.2008. Moreover, if the deceased was really mentally depressed as is deposed to by PW.1, what was imminent necessity to visit the
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CRL.A No. 2548 of 2013agricultural land by the deceased for carrying out the agricultural operations is also not forthcoming. Witness admit that there was no rain on 09.07.2008 or on 10.07.2008 and therefore, many of the villagers had not been to agricultural operations. All these aspects when viewed cumulatively, the prosecution evidence is not sufficient to record a finding that second incident as is propounded by the prosecution that occurred around 7.00 p.m. on 09.07.2008 itself is a doubtful incident. If any such incident has occurred, there cannot be any abetment at all in terms of Section 109 of IPC which would contribute for committing suicide by the deceased by consuming pesticide.
41. In the light of the principles of law enunciated in the decisions referred to by the learned counsel for the appellants, when the material evidence on record is analysed, there are many loopholes in the case of the prosecution inasmuch as in respect of second incident that is said to have occurred on 09.07.2008, there is
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CRL.A No. 2548 of 2013independent evidence placed by the prosecution. The testimony of alleged eyewitness PW.4 cannot be believed inasmuch as he has admitted that he kept quite and did not prevent the incident when the appellants were in the process of outraging the modesty of his sister-in-law (deceased). Further, it is elicited by the defence that he did not inform this incident to police or elders and went away home as if no incident has occurred, which is highly unnatural. So also, there is a delay in lodging the complaint and that delay is material in the case and on any exigencies police when had visited the Haveri District Hospital on 10.07.2008 itself at around 7.00 p.m. no complaint came to be lodged and the complaint came to be lodged only on 11.07.2008 at about 11.15 a.m. after thorough deliberation.
42. Further, PW.1 has categorically admitted in his cross-examination that differences between the accused party and the deceased for having lodged the complaint with CDPO on 08.07.2008 had been reconciled by the
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CRL.A No. 2548 of 2013panchayatdars, who are the elders of the village and admits contents of panchayat settlement that took place between panchayat in his cross-examination.
43. All these facts when viewed cumulatively, the material evidence on record is not sufficient enough to hold that because of the actions attributable to the appellants said to have committed by them on night hours of 09.07.2008 after conclusion of panchayat proceedings, driven the deceased to commit suicide on 10.07.2008 at about 4.00 p.m. in the agricultural land by consuming pesticide.
44. It is settled principles of law and requires no emphasis that the prosecution has to travel a long distance between "may be proof" and "actual proof". In a set of circumstances if two views are permissible, the view that prefers the accused must always be preferred by the Courts. Further, any doubt in the case of the prosecution, must always enure to the benefit of the accused. Applying these celebrated legal principles to the case on hand, the
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CRL.A No. 2548 of 2013doubt in the case of the prosecution must definitely enure to the benefit of the accused, especially when the second incident said to have been taken place on 09.07.2008 wherein the appellants indulged in picking up quarrel with the deceased and outraged her modesty by pulling her saree, petticoat and blouse is not established. Such doubt should definitely enure to the benefit of the appellants herein. Accordingly, this Court is of the considered opinion that the material evidence available on record is hardly sufficient to establish all ingredients to attract offence under Section 306 of IPC and other offences. Accordingly, point No.1 is answered in negative. Consequently, point No.2 is answered in affirmative.
45. Regarding Point No.3:- In view of the findings of this Court on point Nos.1 and 2 as referred to supra, following order is passed:
ORDER
(i) The appeal is allowed.
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CRL.A No. 2548 of 2013(ii) Impugned judgment passed in S.C.No.14/2009 dated 30.01.2012 on the file of the Fast Track Court, Ranebennur convicting the appellants for the offences punishable under Sections 143, 147, 341, 323, 354, 504, 306 r/w 149 of IPC is hereby set aside and the accused are hereby acquitted of the said offences.
(iii) Bail bonds stand discharged.
(iv) Fine amount deposited, if any, is ordered to be returned to the appellants under due identification.
(v) Office to return trial Court records with a copy of this order forthwith.
SD/-
JUDGE CLK/SH