Karnataka High Court
State By Devanahalli Police vs Smt Tulasi @ Tulasamma on 10 January, 2020
Author: K.Somashekar
Bench: K. Somashekar
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 787 OF 2011
C/W
CRIMINAL APPEAL NO. 251 OF 2011
IN CRIMINAL APPEAL NO. 787 OF 2011
BETWEEN
State by Devanahalli Police ... Appellant
(By Sri. R.D.Renukaradhya, HCGP)
AND
1. Smt. Tulasi @ Tulasamma
W/o Muniraju,
Aged about 36 years,
R/o Ward No.14,
Maralu Bagilu,
Devanahalli Town,
Bangalore.
2. Smt.Nanjamma
W/o Govindappa,
Aged about 51 years,
R/o Kalyana Nagar,
Babusab Palya,
Bangalore. ... Respondents
(By Sri.A.H.Bhagavan, Advocate for R1;
Appeal against R2 is abated v/o/d/ 16.11.2018)
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This Crl.A. is filed under section 377 Cr.P.C praying
to modify the sentence imposed on 25.02.2011 passed by
the P.O., FTC, Devanahalli in S.C.No.271/2010-convicting
the respondents/accused for the offence punishable under
Section 306 read with 34 of IPC and respondents/accused
are sentenced to undergo simple imprisonment for five
years for the offence punishable under Section 306 of IPC.
IN CRIMINAL APPEAL NO. 251 OF 2011:
BETWEEN
1. Smt. Tulasi @ Tulasamma
W/o Muniraju,
Aged about 25 years,
Resident of 5th Ward,
Maralu Bagilu,
Devanahalli Town,
Bangalore.
2. Smt.Nanjamma
W/o Govindappa,
Aged about 30 years,
R/o Kalyan Nagar,
Babusab Palya,
Bangalore. ... Appellants
(By Sri.A.H.Bhagavan, Advocate and
Sri A N Radhakrishna - Advocate for
Appellant No.1;
Appeal against Appellant No.2 is
abated v/o/d/ 16.11.2018)
AND
State of Karnataka,
By its State Public Prosecutor,
Advocate General's Office,
High court buildings,
Bangalore. ... Respondent
(By Sri. R.D.Renukaradhya, HCGP)
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This Crl.A. is filed under section 374(2) Cr.P.C
praying to set aside the order dated 25.02.2011 passed by
the P.O., FTC, Devanahalli in S.C.No.271/2010-convicting
the respondents/accused for the offence punishable under
Section 306 read with 34 of IPC and respondents/accused
are sentenced to undergo simple imprisonment for five
years for the offence punishable under Section 306 of IPC.
These Criminal Appeals coming on for dictating of
judgment, this day, the Court delivered the following:
JUDGMENT
As both these appeals arise out of a common judgment, they are taken up for hearing together and are disposed of by this common judgment.
2. The State has preferred appeal in Crl.A.787/2011 questioning the judgment of conviction and order of sentence rendered by the Fast Track Court, Devanahalli in S.C.No.271/2010 dated 25.02.2011 whereby held conviction under Section 306 of IPC and the accused were sentenced to undergo imprisonment for a period of five years, but no fine amount was imposed. The same has been challenged under this appeal by the State for non :4: imposing of fine for the offence under Section 306 read with 34 of IPC.
3. Crl.A.No.251/2011 is filed by the appellants/accused Nos.1 and 2 praying to set aside the impugned judgment of conviction and order of sentence dated 25.02.2011 passed by the Presiding Officer, Fast Track Court, Devanahalli in S.C.No.271/2010 and consequently, acquit the appellants of the charges leveled against them.
4. During the course of pendency of appeals, accused No.2- Smt.Nanjamma is said to have died and case against her has stood abated vide order of this Court dated 16.11.2018.
5. The factual matrix of the appeals are as under:
It is stated in the theory of the prosecution that the accused persons were said to have been quarelling with deceased Shashikala in the matter of washing of cloths in the nearby area and further accusing against the potency of her husband, suspecting the parentage of their two children and abusing the deceased with filthy language :5: saying that she sleeps with other person and she should go and die instead of living. Due to this accusation, deceased Shashikala committed suicide by hanging herself by means of saree to a wooden rafter in the house on 07.01.2010 at about 9.00 a.m.
6. Subsequent to the filing of a complaint by the complainant, crime came to be registered. Thereafter, the IO took up the case for investigation. During the investigation, the IO has recorded the statement of witnesses, and so also, held inquest over the dead body of Shashikala. The dead body was sent to mortuary to conduct autopsy. Accordingly, the doctor conducted autopsy over the dead body and issued Post mortem Report. Subsequent to completion of investigation, the IO laid charge sheet against accused Nos.1 and 2 before the Committal Court. Subsequently, the case was committed to the Sessions Court in S.CNo.271/2010. The charges were framed against accused Nos.1 and 2 for the offence punishable under Section 306 read with 34 of IPC. The accused did not plead guilty but claimed to be tried. The :6: prosecution in order to substantiate its case, got examined as many as 12 witnesses as per P.Ws.1 to 12 and so also, got marked documents as per Exs.P1 to P8 and also got marked M.O.1-Saree. Subsequent to the closure of the evidence, the incriminating statement of the accused Nos.1 and 2 under Section 313 Cr.P.C. was recorded where accused denied the truth of the prosecution evidence adduced and they did not come forward to adduce any defence evidence. The Trial Court, on hearing the arguments of the prosecution and the defence counsel and on appreciation of evidence of P.W.1
- P.W.12 and exhibited documents, passed the impugned judgment convicting accused Nos.1 and 2 for the offence punishable under Section 306 read with 34 of IPC . It is this judgment which is under challenge in these appeals.
7. Heard Sri. R.D.Renukaradhya, learned HCGP for State and Sri. A.H. Bhagavan learned counsel for accused and perused the entire records consisting impugned judgments.
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8. The learned HCGP in Crl.A.No.787/2011 contends that the order of sentence passed by the trial Court is inadequate, improper and not in conformity with the provisions of law. Further, he contends that it is imperative under Section 306 of IPC that the imprisonment may be upto 10 years and it shall also be liable to fine. The same has been lost sight by the trial Court while ordering the sentence against the accused persons. He further contends that there is no special reason assigned by the trial Court justifying the remission in non-imposing the fine for the offence under Section 306 of IPC. It is contended that the social impact of the order in respect of this crime is not properly evaluated and reasoned. Therefore, the trial Court ought to have imposed adequate sentence of fine against the accused persons. Further, it is contended that the order of sentence is not in accordance with the sentencing policy and the prescribed statutory requirement. On all these grounds, learned HCGP seeks for intervention of this court in respect of sentence awarded by the trial Court. :8:
9. Whereas, learned counsel for the appellants/accused Nos.1 and 2 in Crl.A.No.251/2011 contends that the prosecution has not been able to establish the guilt of the accused persons beyond reasonable doubt, hence, the judgment of the trial Court is liable to be set-aside as where the prosecution has miserably failed to prove its case without there being any proof.
10. Further, it is contended that the case of the prosecution is silent regarding use of abusive language and harassment meted out to the deceased Shashikala which led her to commit suicide. Except the allegation that there was use of abusive language or harassment, the prosecution witnesses are silent about the harassment meted out by the deceased. In the absence of the said material, the accused persons could not have been convicted for the alleged offence.
11. Further, it is contended that there is no allegation either in the charge sheet or in the FIR or in the evidence to substantiate the ingredients of offence under Section 306 of IPC. It is contended that the trial court has :9: not based its reliance on any cogent evidence to hold that the appellants are guilty of the charges leveled against them, but believes the evidence of complainant as if the same is a gospel truth. The observation of the trial Court that the alleged use of abusive language has led the deceased to commit suicide is without basis and the same led to miscarriage of justice to the case of the appellants/accused.
12. It is contended that PW.1 is not an eye witness to the incident and he has received the information at 11.00 a.m. and he has stated in his evidence that he has lodged the complaint after informing his mother-in-law and father-in-law and after that they came to the house. The delay in lodging the complaint has not been explained by PW.1. This aspect of the matter has not been considered by the trial court. Further, he contends that the preponderance of probability drawn by the trial court in version of the prosecution is absolutely baseless and without any justification.
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13. Learned counsel for the appellants in support of his contentions has relied on the following reliance of the Hon'ble Supreme Court:
(i) Mahendra Singh and another vs. State of M.P.
- 1995 SCC (Cri) 1157 In this judgment the Hon'ble Apex Court has extensively dealt with scope and object of Section 306, 107 and 498A of IPC. It is held that "conviction for abetment of suicide merely on the allegation of harassment to the deceased is not sustainable"
In the instant case, deceased - Shashikala who committed suicide by hanging with means of saree due to frequent quarrel with accused persons and also was abused in a filthy language saying that she did not give birth to the children through her husband but through some other person. There is no specific evidence as adduced by the prosecution to prove the guilt of the accused and so also ingredients as required under Section 107 of IPC akin to section 306 of IPC. Abetment has been defined in Section 107 of IPC to mean that a person abets the doing of a thing who firstly instigates any person to do : 11 : a 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. Neither of the ingredients of abetment are attracted on the statement of the deceased. Hence, the conviction of the appellants merely on the allegation of harassment to the deceased is not sustainable.
(ii) Sonti Rama Krishna vs. Sonti Shanti Sree and another - (2009) 1 SCC (Cri) 578 In this judgment, the Hon'ble Apex court has held that "words uttered in a fit of anger or emotion without any intention cannot be termed as instigation"
In the instant case, due to frequent quarrel in between the deceased - Shashikala and accused persons she committed suicide by hanging herself with means of saree to a wooden rafter in the house. But the prosecution has not proved the guilt of the accused by putting forth cogent, corroborative and acceptable evidence relating to : 12 : Section 306 of IPC. Therefore, counsel for the appellant/accused submits that this decision is squarely applicable to the case on hand.
(iii) Amalendu Pal vs. State of West Bengal - (2010) 1 SCC (Cri) 896 In this case, it is held that "before holding an accused guilty of an offence under Section 306 of 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 commit suicide."
(iv) Gangula Mohan Reddy vs. State of Andhra Pradesh (2010) 1 SCC (Cri) 917 In this case, the Hon'ble Apex Court has extensively dealt with Sections 306 and 107- Abatement involves a mental process of instigating a person or intentionally aiding a person in doing of a thing - without a positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained"
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In the instant case, deceased - Shashikala and accused persons said to be relatives to each other and there was frequent quarrel taking place prior to the incident even for petty cases like washing clothes and letting water etc. But this is not the specific reason for committing suicide even to the extent that accused used to abuse the deceased in a filthy language. But there is no specific evidence as facilitated by the prosecution in order to secure conviction for the offence punishable under Section 306 of IPC.
(v) M.Arjunan vs. State - (2019) 2 SCC (Cri) 219 In this case, the Hon'ble Apex Court has held that "essential ingredients of offence under Section 306 IPC are abetment and intention of accused to aid or instigate or abet deceased to commit suicide - however, insulting deceased by using abusive language will not, by itself, constitute abetment of suicide - there should be evidence capable of suggesting that accused intended by such act to instigate deceased to commit suicide - unless ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 of IPC." : 14 :
In the instant case, the ingredients of the said offence against the accused persons from whom the deceased has meted out by way of abusing in filthy language and also by accusing against the potency of her husband, raising criticism, suspecting the parentage of their two children and saying her to go and die instead of living, due to which the said Shashikala is said to have committed suicide. But it is the contention of appellant's counsel that the trial Court has not properly appreciated the evidence of the prosecution witnesses and it has misdirected and misinterpreted the evidence of PW.1. On all these grounds, learned counsel for the accused seeks interference of the impugned judgment by allowing the present appeal and acquit the accused person.
14. In this context of contentions as taken by learned HCGP for State and learned counsel for the appellants/accused, it is the case of prosecution that accused persons have been quarreling with deceased - Shashikala in the matter of washing of cloths in the nearby area, further accusing against the potency of her husband, PW.1 raising criticism, suspecting the parentage : 15 : of their two children and saying her to go and die instead of living, despite being a characterless women, due to which the said Shashikala committed suicide due to unbearable humiliation and mental cruelty.
15. The prosecution in order to prove its case has got marked Ex.P1-complaint, Ex.P2 - spot mahazar, Ex.P4
- inquest report, Ex.P5 - report of PW.10, Ex.P6 - PF, Ex.P7 - P.M.report and Ex.P8 - sketch. M.O.1 is the saree.
16. P.W.1-complainant (Nagaraj) is none other than the husband of the deceased. P.W.1 has stated in his evidence that on 07.01.2010 at about 11.00 a.m. while he was attending his duty as helper, in a private factory, got information about the death of his wife, immediately, he rushed to the spot and found that his wife has committed suicide to a wooden rafter with means of M.O.1 - saree. In this regard, he lodged a complaint against accused Nos.1 and 2. He further deposed that prior to the incident, there was frequent quarrel that was taking in between the accused and his wife with regard to letting of water and washing clothes. Accused Nos.1 and 2 were giving mental torture to his wife by saying that her husband is an : 16 : impotent, her children were not born to her husband and she sleeps with other person etc., hence, a petty case was registered against them and they have paid fine amount of Rs.100/- before the court of law. Accused No.1 is the daughter-in-law of his uncle and accused No.2 is mother of the accused No.1 and both are relatives of him. In the cross examination, P.W.1 admitted that there is a twenty feet road between his house and the house of accused and there was separate water channel to wash cloths and the water does not let in towards the house of accused. He further deposed that prior to his marriage with the Shashikala there was a proposal to marry her sister.
17. PW.2 - Ramalakshmamma is the neighbouring resident of PW.1. She has specifically stated in her evidence that accused persons are her neighbours and relatives of deceased Shashikala. There used to be frequent quarrel between deceased and accused persons in respect of washing cloths. In her cross-examination she has stated that on 7.1.2010 at about 8.30 am she was in her house and at that time deceased Shashikala was washing cloths in front of her house. She has declined to : 17 : answer to the queries made to her as to what had happened on that particular day of incident between the accused and deceased. But she has admitted that deceased Shashikala and accused were relatives. She had not reported about the altercation that took place between the accused persons and deceased Shashikala.
18. PW.3 - Manjula is the sister and PW.4 -
Ramakrishnappa is the father of deceased Shashikala. Accused persons are their relatives. These witnesses are interested as well as partisan witnesses relating to the allegation made against the accused persons as per Ex.P1. They have not seen the incident, further, they have not seen the accused persons abusing deceased in filthy language. It is relevant to note here that in the cross - examination, PW.4 has specifically stated that his third daughter is got married with PW.1 subsequent to the death of deceased - Shashikala. He has declined to answer the queries that there was quarrel between PW.1 - Nagaraja and deceased - Shashikala.
19. PW.8 - Girijamma has stated in her evidence that on 7.1.2010 in between 7.30 to 8.00 a.m. there was : 18 : quarrel taking place in between deceased - Shashikala and the accused persons. Therefore, she had come out from her house. But the accused were abusing deceased - Shashikala saying that she did not give birth to the children through her husband and she had illicit relationship with some other person. By saying so they were abusing in filthy language. But there is no specific evidence as placed by the prosecution in order to secure the conviction against the accused. Mere because abusing the complainant and saying that her husband was impotent and further saying as go and die, that itself is not a specific ingredient so as to constitute offence under Section 306 of IPC and caused her death.
20. PW.11 said to be the Doctor who conducted autopsy over the dead body of the deceased and issued P.M.Report as per Ex.P7. There is no dispute about the death of deceased. But the prosecution has not proved the guilt of the accused with beyond all reasonable doubt that the accused persons have caused the death of deceased and she committed suicide by hanging with means of M.O.1 - Saree to a wooden rafter. It appears : 19 : that there is no strong material as facilitated by the prosecution even though it has examined several witnesses as PW.1 to 12. The prosecution has relied upon the evidence of PW.1 who is the author of the complaint at Ex.P1 and none other than husband of deceased - Shashikala and so also, the evidence of PW.3 and 4 who are none other than sister and father of deceased - Shashikala. PW.5 and PW.8 are the neighbourers. But at a cursory glance of their evidence, there appears to inconsistencies and contradictions in their evidence. Mere because there was frequent quarrel in between deceased - Shashikala and accused persons, that itself cannot be the cause for deceased committing suicide. There is no strong material as facilitated by the prosecution in order to secure conviction against the accused. The trial Court has misdirected and misinterpreted the evidence of the prosecution witnesses.
21. PW.2 who is a vital witness for the prosecution has not given the complaint to the police even at the first instance. But there are inconsistencies in the evidence of PW.1 - Nagaraj and so also, in the evidence of PW.2. : 20 : PW.2 has denied in the evidence that prior to the incident in between the accused persons and the deceased, quarrel was taking place in between them. But PW.2 happened to be tenant under deceased -Shashikala and naturally she a interested witnesses and partisan witness on the part of the prosecution. But the said evidence of PW.2 is not in conformity with the averments as per Ex.P1 - complaint. Further, PW.6 has stated in her evidence that deceased committed suicide by hanging with a saree to the ceiling fan. But it is the case of the prosecution that deceased - Shashikala committed suicide by hanging to a wooden rafter by means of M.O.1 - saree. This is a glaring contradiction and inconsistency in the evidence of prosecution case. The same has not been appreciated by the trial Court in a proper perspective manner. Further, it is to be noted that the alleged use of filthy language has a direct nexus and proximity of time for leading the deceased to commit suicide so as to convict the accused under Section 306 of IPC. The evidence of the prosecution witnesses would only a suggestive of allegation of modesty. But there is no allegation that the language used : 21 : by the accused persons has induced the deceased to commit suicide which is a test for the purpose of conviction under Section 306 of IPC.
22. Further, PW.1 is not an eye witness to the incident. He states that he received the information at 11.00 a.m. lodged the complaint after informing his mother-in-law and father-in-law and after they came to the house. The delay in lodging the complaint has not been properly explained by PW.1. This aspect has not been considered by the trial Court. The observation of the trial court that the alleged use of language and scolding has led the deceased to commit suicide is without any basis. The case of the prosecution is silent about the use of abusive language and the harassment which has led the deceased to commit suicide. Except the allegation that there was use of abusive language or harassment, the prosecution witnesses are silent about the harassment or use of abusive language with an intention that the deceased should commit suicide as narrated. : 22 :
23. There is no specific allegation either in the charge sheet or in the FIR or in the evidence to substantiate the ingredients of offence under Section 306 of IPC. In order to convict a person under Section 306, there has to be a clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that she commits suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to society to which victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide. But in the instant case, it is the allegation that since deceased - Shashikala was insulted by the accused persons by using filthy language in the matter of washing of cloths in the nearby area and further accusing against the potency of her husband, suspecting the parentage of their two children and by saying her to go : 23 : and die instead of living. But to prove this aspect of the matter, there is absolutely no evidence put forth by the prosecution for convicting the accused persons under Section 306 of IPC. The alleged use of the language has a direct nexus and proximity of time between the deceased committing the alleged act of committing suicide and the overt-acts alleged against them. It cannot be said that the suicide committed by the deceased was the direct result of the words uttered by the accused persons. Therefore, the conviction of the appellants under Section 306 of IPC merely on the allegation of harassment to the deceased is not sustainable. Therefore, it needs interference in terms of the aforesaid reasons and findings, I am of the considered opinion that accused are deserving for acquittal, consequently, I have to proceed to pass the following:
ORDER Crl.A.No.787/2011 preferred by the Appellant - State is hereby rejected. Crl.A.No.251/2011 preferred by the Appellant/Accused No.1 is hereby allowed. Consequently, the impugned judgment of conviction : 24 : and order of sentence rendered by the trial Court in S.C.No.271/2010 dated 25.02.2011 is hereby set- aside. The accused are acquitted for the offence under Section 306 r/.w 34 of IPC.
The bail bond executed by the accused shall stand cancelled.
Sd/-
JUDGE JS/DKB