Karnataka High Court
The State Of Karnataka vs Hussaini on 16 December, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE ANIL B. KATTI
CRIMINAL APPEAL NO.200079/2021
C/w
CRIMINAL APPEAL NO.200082/2021
In Crl.A.No.200079/2021
BETWEEN:
The State of Karnataka
Through Managuli P.S.
Represented by
Addl. State public Prosecutor,
High Court of Karnataka,
Kalaburagi-585103.
.... Appellant
(By Sri Sharanabasappa M.Patil, Advocate)
AND:
Hussaini S/o Nabisab Bagalkot,
Aged about 65 years,
Occ: Agriculture,
R/o Managuli Village,
Tq: Basavana Bagewadi,
Dist: Vijayapura-586122.
.... Respondent
(By Sri R.S. Lagali, Advocate)
2
This Criminal Appeal is filed under Section
378(1) & (3) of the Code of Criminal Procedure,
praying to:
(a) Grant Leave to appeal against the judgment
and order dated 21.07.2020 passed by the I Addl.
District and Sessions Judge at Vijayapura, in Sessions
Case No.25/2016 and thereby acquitting the
Respondent/Accused No.3 for the offence punishable
under Section 306 R/w Sec.34 of Indian Penal code.
(b) Set aside the judgment and order dated
21.07.2020 passed by the I Addl. District and
Sessions Judge, at Vijayapura, in Sessions Case
No.25/2016 thereby acquitting the
Respondent/Accused No.3 for the offence punishable
under Section 306 R/w Sec.34 of Indian Penal Code.
(c) Convict and Sentence the respondent/
accused No.3 for the offence punishable under Section
306 R/w Sec.34 of Indian Penal Code, in the interest
of justice and equity.
In Crl.A.No.200082/2021
BETWEEN:
The State of Karnataka
Through Managuli P.S.
Represented by
Addl. State public Prosecutor,
High Court of Karnataka,
Kalaburagi-585103.
.... Appellant
(By Sri Sharanabasappa M.Patil, Advocate)
3
AND:
1. Gousabi W/o Ameensab Dalawai,
Aged about 43 Years,
Occ: Household,
R/o Managuli, Tq: B.Bagewadi,
Dist: Vijayapura-586122.
2. Nabisab @ Buddesab S/o Husaini Bagalkot,
Aged about 25 Years, occ:
R/o Managuli, tq: B.Bagewadi,
Dist: Vijayapura-586122.
.... Respondents
(By Sri R.S. Lagali, Advocate for R1 & R2)
This Criminal Appeal is filed under Section
378(1) & (3) of the Code of Criminal Procedure,
praying to:
(a) Grant Leave to appeal against the judgment
and order dated 21.07.2020 passed by the I Addl.
District and Sessions Judge at Vijayapura, in Sessions
Case No.64/2018 and thereby acquitting the
Accused/respondents for the offence punishable under
Section 306 R/w Sec.34 of Indian Penal code.
(b) Set aside the judgment and order dated
21.07.2020 passed by the I Addl. District and
Sessions Judge, at Vijayapura, in Sessions Case
No.64/2018 thereby acquitting the
Respondents/Accused for the offence punishable
under Section 306 R/w Sec.34 of Indian Penal Code.
(c) Convict and Sentence the respondents/
accused for the offence punishable under Section 306
4
R/w Sec.34 of Indian Penal Code, in the interest of
justice and equity.
These appeals having been heard through
Physical Hearing/Video Conference and reserved for
Judgment on 08.12.2022, coming on for
pronouncement of Judgment this day, delivered the
following:
JUDGMENT
1. The appellant-State in Crl.A.No.200079/2021 is challenging judgment of acquittal passed against accused No.3 in SC No.25/2016 and Crl.A.No.200082/2021 against accused No.1 and 2 in SC No.64/2018 passed by I Addl. District & Sessions Judge, Vijayapura dated 21.07.2020.
2. These two appeals are arising out of the case registered against accused Nos.1 to 3 of Managuli PS Crime No.82/2014. The main case is SC No.25/2016 against accused No.3. The split-up charge sheet is filed against accused 5 Nos.1 and 2 in SC No.64/2018. The Trial Court has disposed of both Sessions case by separate judgment dated 21.07.2020. In order to avoid repetition of evidence on record, both these appeals are taken together for disposal by this common judgment.
3. The parties to the appeals are referred with their ranks as assigned in the Trial Court for the sake of convenience of discussion.
4. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that from 8.00 p.m. of 24.04.2014 to 07.00 a.m. of 24.05.2014, Ameensab Hajisab Dalawai committed suicide by hanging himself to a neem tree situated in the land belonging to Ramanna Jeer at Managuli village. The accused No.1 wife of deceased Ameensab was having 6 illicit intimacy with her relative accused No.2. The accused No.3 being the father of accused No.2 with common intention to grab property of deceased Ameensab were abusing and humiliated by saying "go and die". On account of such abetment caused by all the accused, the deceased Ameensab has committed suicide by hanging himself to a neem tree. On these allegations, the investigating officer has carried out investigation and filed the charge sheet.
5. The trial Court after securing the presence of accused in both the cases on being prima facie satisfied with the material evidence placed on record, has framed Charge against all the accused for the offences alleged against them. The accused have pleaded not guilty and claimed to be tried. The prosecution was called upon to prove the charges leveled against the accused. 7
6. The prosecution in order to bring home the guilt of accused No.3 in SC No.25/2016 has relied on oral evidence of PWs.1 to 9 and the documents as per Exs.P1 to P14 so also got identified MO Nos.1 to 5.
7. The prosecution in order to bring home the guilt of accused Nos.1 and 2 in SC No.64/2018 has relied on the oral evidence of PWs.1 to 7 and the documents as per Exs.P1 to P12, so also got identified MO Nos.1 to 5.
8. The accused in both the cases have not led any defence evidence. The trial Court after having heard arguments of both sides and on perusal of oral and documentary evidence placed before it, has acquitted the accused in both the cases for the offences punishable under Sections 306 R/w Section 34 of IPC.
8
9. The appellant-State in both the appeals challenged correctness and legality of acquittal judgment passed by the Trial Court contending that the Trial Court has not properly appreciated the evidence on record. The material witnesses PW1, PW4, PW6 and PW7 in SC No.25/2016 have supported the case of the prosecution and their evidence has been brushed aside by the Trial Court without assigning convincing reasons. Their admissions in the cross examination on the issue of abetment after recalling cannot be relied for the reason that they have been recalled after turning hostile in the split-up charge sheet. The complainant PW1 in SC No.64/2018 has supported the case of prosecution, though the other witnesses have turned hostile. The available evidence would be sufficient to draw an inference that on account of abetment caused by 9 accused Nos.1 to 3 the deceased Ameensab has committed suicide by hanging himself to the neem tree. The approach and appreciation of oral and documentary evidence by Trial Court is contrary to law and evidence on record. Therefore, prayed for allowing both the appeals and to convict accused Nos.1 to 3 for the charge leveled against them.
10. In response to the notice of both appeals, the learned counsel for respondent-accused has appeared through counsel.
11. The Trial Court records have been secured.
12. Heard the arguments of both sides.
13. On the basis of the above narrated facts, the following points arise for determination. 10
i) Whether the impugned judgments of acquittal dated 21.07.2020 passed in Sessions Case Nos.25/2016 and 64/2018 by the learned I Addl. District & Sessions Judge, Vijayapura warrant any interference at the hands of this Court?
ii) What order?
REASONS
14. Point No.1:- The prosecution alleges that from 8.00 p.m. of 24.04.2014 to 07.00 a.m. of 24.05.2014, Ameensab Hajisab Dalawai committed suicide by hanging himself to a neem tree situated in the land belonging to Ramanna Jeer at Managuli village. The accused No.1 is wife of deceased Ameensab was having illicit intimacy with her relative accused No.2. The accused No.3 being the father of accused No.2 with common intention to grab property of deceased Ameensab were abusing and humiliated him by saying "go and die". On 11 account of such abetment caused by all the accused, the deceased Ameensab has committed suicide by hanging himself to a neem tree.
15. The prosecution in order to prove the above referred allegations made in the complaint as per Ex.P1, mainly relies on the oral testimony of PW1-Mabubi, PW4-Rukmuddin, PW6-Basavaraj Bagewadi and PW9-Basavaraj Patil, Investigating Officer in SC No.25/2016. The very same witnesses have been examined in the split-up charge sheet in SC No.64/2018 as PW1, PW3 and PW4 and PW7. It is only the co-pancha PW5-K.B.Muttappanavar and PW6-Basavaraj Bagewadi who has registered the case examined in SC No.25/2016 have not been examined in the split-up charge sheet in SC No.64/2018. 12
16. Before adverting to the evidence on record, it is necessary to take note of the first complaint filed by PW1-Mabubi dated 25.04.2014 as per Ex.P13 wherein it is alleged that deceased Ameensab left the house on 24.04.2014 at 8.00 p.m. and he did not return. On the next day on 25.04.2014 at 7.00 a.m. the complainant heard about neighbors talking that son of complainant Ameensab committed suicide by hanging to a neem tree in the land of Ramanna. The complainant went to the spot and found dead body of her son Ameensab hanging to a neem tree. The complainant having suspicion about the death of her son filed the complaint. On the basis of it, UDR case came to be registered under UDR No.1/2014 as per Ex.P14.
17. PW1-Mabubi filed another complaint dated 04.06.2014 as per Ex.P1. On the basis of said 13 complaint, the case was registered against accused Nos.1 to 3 under Managuli PS Crime No.82/2018 for the offence under Section 306 R/w 34 of IPC. It is on the basis of allegations made in this complaint as per Ex.P1, the accused Nos.1 to 3 were involved in this case. The first complaint as per Ex.P13 is filed on 25.04.2014 and the second complaint Ex.P1 is filed on 04.06.2014 and there is delay of 40 days in filing second complaint. This delay in filing second complaint will have to be appriciated in the light of evidence placed on record.
18. The accused No.1 is wife of deceased Ameensab and accused No.3 is the father of accused No.2. The accused No.2 is relative of complainant. The deceased Ameensab was having agriculture land measuring 9 acres 20 guntas. The in-laws of complainant have purchased 2 acres of land 14 from sister of accused No.3. The grand daughter of PW1 i.e. Salma was given in marriage to accused No.2, are the facts not in dispute and the same can be born out from the evidence placed on record.
19. The complaint allegation as per Ex.P1 scribed by PW8 Abdulraheman Mohd. Hanif Dundsi is to the effect that deceased Ameensab is having four daughters and two sons. The deceased Ameensab is physically challenged and having 9 acres land in his name. The accused No.1 daughter-in-law of complainant has developed illicit relationship with accused No.2 and this fact is known to all their relatives. The accused Nos.1 to 3 always use to quarrel with her son Ameensab and harassing him with an intention to grab his property. They use to assault and abuse him, so also use to ask him to die. On 15 account of such harassment of all the accused, Ameensab has committed suicide by hanging himself to a neem tree in between 8.00 pm of 24.04.2014 to 7.00 a.m. on 25.04.2014.
20. The complainant PW1 Mabubi during the course of her evidence has made out totally a new case which was neither stated in the first complaint as per Ex.P13 dated 25.04.2014, nor in the second complaint dated 04.06.2014 as per Ex.P1. It is the evidence of PW1 Mabubi that accused No.2 and 3 were not having any property in Managuli and her in-laws have purchased 2 acres land from the sister of accused No.3. The accused No.2 and 3 were demanding to get back the said land. About three years back, accused No.1 to 3 have committed the murder of Ameensab by hanging him to neem tree and his mouth was gagged with cloth. The accused were quarreling 16 with Ameensab daily. The investigating officer has not carried out investigation properly. In view of PW1-Mabubi having deposed contrary to the complaint allegations, she was declared as hostile witness. However, during the course of her cross examination by the learned Prosecutor has admitted all the suggestion put to her as per complaint allegations.
21. PW3-Moulali is the grand son of complainant PW1-Mabubi and accused No.1 is his sister. PW3-Moulali has deposed to the effect that Rukmuddin S/o Ameensab has informed him that all the accused have assaulted his father and committed the murder. The accused No.1 has carried Ameensab to the land of Jeer and Rukmuddin has witnessed the incident of assault causing his death. This witness has also not supported the case of prosecution. However, 17 during the course of cross examination by learned Public Prosecutor has admitted some of the suggestions put to him as per the case of prosecution.
22. PW4-Rukmuddin has deposed to the effect that about four years back his mother accused No.1 took his father out of the house on the pretext of she is required to go for nature call and he followed them. PW4 has further deposed to the effect that his mother gave Ameensab to the custody of accused Nos.2 and 3 and they dragged him to the Eastern side. Since he was frightened, left the place and slept in the house of somebody and in the morning he came to know that his father was murdered and then hanged. This witness has also not supported the case of prosecution. However, during the course of cross examination by learned Prosecutor has 18 admitted to some of the suggestion as per the case of prosecution.
23. On the basis of evidence of PW1-Mabubi, PW3- Moulali and PW4-Rukmuddin, the learned Public Prosecutor has filed an application under Section 173(8) of Cr.PC seeking directions to I.O. for conducting further investigation. The said application came to be allowed by the order of Trial Court dated 14.03.2018. The order sheet dated 28.08.2018 would go to show that final report is received. The statement of PW1- Mabubi, PW3-Moulali and PW4-Rukmuddin has been recorded on 26.03.2018. Their statement would go to show that the accused has not committed the murder of Ameensab and he died due to hanging.
19
24. The inquest panchanama as per Ex.P7, PM report as per Ex.P9 and the final opinion as per Ex.P10 would go to show that the cause of death was due to asphyxia as a result of hanging. The type of ligature mark over front and side of neck above thyroid cartilage measuring 33 cm x 1.5 cm directed upwards and backwards and to the right mastoid process is caused by self hanging. Therefore, in view of above referred evidence on record, the evidence of PW1-Mabubi, PW3- Moulali and PW4-Rukmuddin cannot be relied to hold that Ameensab was murdered by accused No.1 to 3. The said evidence would unmistakably demonstrate the fact that it is a case of suicide.
25. The prosecution has to prove that the accused have abetted the commission of suicide by deceased Ameensab in order to attract penal provision under Section 306 of IPC. The legal 20 requirement of abetment in terms of Section 107 of IPC reads as follows:
Section 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 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.
21
Explanation 2.- Whoever, either prior to or at the time of the commission of an act, the 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.
26. The 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. In order to attract penal provision in terms of Section 306 of IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which lead the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position to commit suicide. The offence of abetment by instigation 22 depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid has provided under Section 107 of IPC. However, the words uttered in a fit of angle or omission without any intention cannot be turned as instigation. The prosecution by evidence on record must demonstrate that it is accused No.1 to 3 have abetted for commission of suicide by deceased Ameensab.
27. The complainant PW1 for the first time in the complaint as per Ex.P1 makes allegation that accused No.1 is having illicit relationship with accused No.2. The accused were harassing deceased Ameensab to grab his property. However, in the entire complaint allegations she do not alleges the accused were repeatedly 23 harassing Ameensab and asking him to "go and die" which would be sufficient provocation to deceased Ameensab to commit suicide seeing no option and the allege act was intended to push the deceased into such a position to commit suicide. However, PW1 denies the suggestion of learned Prosecutor that she has dictated while drafting the complaint that her son committed suicide by hanging. The examination-in-chief of PW3 Moulali is totally silent as to accused No.1 having illicit relationship with accused No.2. However, he admits to that effect in his cross examination by the learned Prosecutor. PW3- Moulali has denied that the accused were saying Ameensab not to be before them and die. The examination in chief of PW4-Rukmuddin is also silent about his mother having illicit relationship with accused No.2. PW4-Rukumuddin has 24 categorically denied in his cross examination by the learned Public Prosecutor that the accused were humiliating and cause mentally harassment to Ameensab by saying "go and die". Therefore, the evidence of PW1-Mabubi, PW3-Moulali and PW4-Rukmuddin as referred above cannot be relied to hold that the alleged conduct of accused Nos.1 to 3 and their harassment in asking Ameensab to "go and die" is proximate cause for Ameensab to commit suicide.
28. The learned High Court Government Pleader has argued that PW3-Rukmuddin Ameensab Dalawai, PW4-Ameensab Nabisab Manur and Moulali Dastgirsab Tonshyal have totally turned hostile to the case of prosecution in Session Case No.64/2018 after they having been examined in the main case SC No.25/2016 and there is sufficient time gap in the intervening period. 25 PW1 was recalled on 30.11.2019 and she turned hostile on the issue of abetment. Hence, under these circumstances, their earlier evidence will have to be relied.
29. On careful perusal of the evidence recorded in both the cases, it would go to show that the evidence of material witnesses PW1-Mabubi, PW3-Moulali and PW4-Rukmuddin have been recorded on the same day on 31.10.2017 and they have been cross examined on the same day. The evidence of PW1-Mabubi is recorded on 11.10.2019 and PW3-Rukmuddin is recorded on 30.11.2019 and the evidence of PW5-Moulali has been recorded on 23.01.2020 in Session Case No.64/2018. It is true that PW1-Mabubi was recalled on 30.11.2019 in SC No.64/2018 and she has turned hostile on the allegation of abetment. If the said portion of evidence of PW1 26 recorded on 30.11.2019 is kept apart then also the above referred infirmities appearing during cross examination of PW1-Mabubi, PW3-Moulali and PW4-Rukmuddin would render their evidence insufficient to hold that deceased Ameensab has committed suicide on account of abetment alleged to have been caused by accused. The mere allegation in the complaint as per Ex.P1 after lapse of 40 days of accused having addressed deceased Ameensab to "go and die" which has not been certified by any other evidence on record would be insufficient to establish clear mens rea of accused in provoking Ameensab to commit suicide, so as to meet the requirement of abetment in terms of Section 107 of IPC to attract penal provision in terms of Section 306 of IPC.
27
30. There is inordinate delay of 40 days in filing the second complaint as per Ex.P1 from the date of filing first complaint on 25.04.2014 as per Ex.P13. Therefore, the concoction of allegations against accused No.1 having illicit relationship with accused No.2, the in-laws of complainant purchased land from sister of accused No.3 and they were demanding to get back the said land, so also to grab the property of Ameensab were harassing deceased Ameensab due to which he committed suicide cannot be ruled out. The evidence of investigating officer PW6-Basavaraj Bagewadi and PW9-Basavaraj Patil in SC No.25/2016 and PW7-Basavaraj Patil in SC No.64/2018, so also the evidence of other witnesses cannot be of any much assistance to the case of prosecution to substantiate the charges leveled against the accused in both the 28 cases. The above referred admissions of material witnesses PW1-Mabubi, PW3-Moulali, PW4- Rukmuddin and their evidence being not in conformity with the case made out by the prosecution would create serious doubt of accused having abetted the commission of suicide by deceased Ameensab. The benefit of such doubt shall have to be extended to the accused. The Trial Court has rightly appreciated the evidence on record in both the cases and has arrived to a just and proper conclusion in holding that the prosecution has failed to bring home the guilt of accused beyond all reasonable doubt. The said finding recorded by the trial court in both the cases is based on material evidence on record and same does not call for any interference by this court. Consequently, point No.1 for determination is answered in negative. 29
31. Point No.2 :- in view of the reasons assigned while dealing with point No.1, we proceed to pass the following:
ORDER The appeals, filed by the appellant-State in Crl.A.No.200079/2021 & Crl.A.No.200082/2021 are hereby dismissed.
The judgment of acquittal passed by passed by I Addl. District & Sessions Judge, Vijayapura dated 21.07.2020 in SC No.25/2016 and SC No.64/2018 are confirmed.
The Registry to transmit the records along with copy of this judgment to the trial Court.
Sd/-
JUDGE SMP