Karnataka High Court
Sri Naveen @ Naveenkumar vs The State on 30 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 1166
Author: K.Somashekar
Bench: K. Somashekar
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO.1194 OF 2011
BETWEEN
SRI NAVEEN @ NAVEENKUMAR
SON OF CHIKKA ANJINAPPA
AGED ABOUT 25 YEARS
RESIDING AT TAPASIHALLI VILLAGE
TUBUGERE HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT.
... APPELLANT
(BY SRI HASMATH PASHA - SR. COUNSEL
FOR SRI SANTOSH .B, ADVOCATE)
AND
THE STATE
BY DODDABALLAPURA RURAL POLICE STATION
BANGALORE RURAL DISTRICT.
... RESPONDENT
(BY SRI. M. DIVAKAR MADDUR - HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO, SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND SENTENCE DATED
24.11.2011 PASSED BY THE II-ADDITIONAL SESSIONS
JUDGE AND SPECIAL JUDGE, BANGALORE RURAL
DISTRICT, BANGALORE IN SPL.C.NO.151/2010 -
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CONVICTING THE APPELLANT / ACCUSED FOR THE
OFFENCE P/U/S 306 OF IPC AND ETC.,
THIS CRIMINAL APPEAL COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence rendered by the II Addl. Sessions Judge and Special Judge, Bangalore Rural District, Bangalore in Spl.C.No.151/2010 dated 24.11.2011 convicting the appellant/accused for the offence punishable under Section 306 of IPC and sentencing to undergo RI for a period of five years and to pay a fine of Rs.15,000/-, in default, to undergo SI for a period of six months. Further, the fine amount of Rs.15,000/- was ordered to be paid to PW.2 - Nagaraja as compensation and in default, to pay the fine amount, the same was ordered to be recovered from him as arrears of land revenue. Further, the accused was acquitted of the offence punishable under Section 3(2)(v) -3- of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. Heard Sri Hashmath Pasha, learned senior counsel for the appellant and learned HCGP for the respondent - State and perused the impugned judgment rendered by the trial Court.
3. The factual matrix of the appeal is that a girl by name Ashwini, aged about 16 years, studying in II PUC in a college known as Lavanya Composite PU College, at Doddaballapura, being the daughter of present complainant - PW.2, committed suicide in the residential house of her parents situated at village by name Tapasihalli. The deceased and the accused and their parents are also residents of the said Tapasihalli. The said Ashwini committed suicide on 30.07.2010 in the evening. At the relevant period i.e., during June 2010, said Ashwini was a college going student studying in PUC II year in the above mentioned college. Her -4- parents' house was situated in Tapasihalli. She used to travel daily by bus and other mode from her house to college for attending the classes. PW.2 - Nagaraj and PW.4 - Nagaveni are said to be the parents of the deceased -Ashwini. The accused is said to be doing business in his village. PW.13 - Hemavathi is the daughter of paternal senior uncle of deceased and also a college going student who was studying in II B.A. in the Government College at Doddaballapura at the relevant point of time. PW.13 used to reside with her parents in village at Gundammanagere and she also used to travel daily from her house to college by bus and other mode. To proceed to the Government college where PW.13 was studying, one has to pass in front of the Lavanya Composite PU College where deceased Ashwini was studying. DW.1 is the Principal of Lavanya Composite PU College. It is the case of the prosecution that since two months prior to the death of deceased, whenever deceased used to go and come back from the college, on -5- the way, accused was expressing love towards her and saying that he wanted to marry her. Even he used to go near the college and was expressing his desire. But the deceased did not accept the said proposal and desire of the accused and she had also expressed the same to the accused. In that regard, accused threatened the deceased that, if she does not agree to marry him, she and her family members will be driven out from the village-Tapasihalli and he would intimate the boys who come to interview for marrying deceased that he had impregnated the deceased. The same was intimated by the deceased to her family members. In this connection, the parents of the deceased advised him not to indulge in such acts and he obeyed the same for some period.
4. It is the case of the prosecution that on 30.07.2010 in the evening at about 4 p.m. the accused went near the college of the deceased where deceased along with her friends and PW.13 were proceeding near -6- the college to return to the house, he indulged in similar acts saying that he is loving the deceased and expressed his desire to marry her and if she does not agree for the marriage, he will intimate the boys stating that he had impregnated her. By virtue of the said incident, the deceased having become totally disgraceful returned to the house and committed suicide in her house in the evening by hanging herself with means of M.O.1 - Saree. It is stated by the prosecution that on account of the said acts of accused harassing and eve-teasing her, the deceased committed suicide and thereby accused was directly responsible for her death. It is also stated that deceased belonged to Scheduled Tribe and the accused belonging to Gowda community who had indulged in such acts, as a result he has committed the above offence.
5. In pursuance of the act of accused, on filing of a complaint as per Ex.P2, crime came to be registered by -7- recording FIR as per Ex.P9 by PW.14 being the ASI for the offence punishable under Section 306 of IPC. Subsequently, PW.16 being the IO took up the case for investigation and recorded the statement of witnesses and so also, conducted mahazar as per Ex.P4 on which PWs.8, 13 and 16 have subscribed their signatures. He secured the PM report as per Ex.P8 and so also, inquest was held over the dead body of deceased Ashwini and charge sheet was laid against the accused before the committal court and the case was committed to the Court of Sessions for trial.
6. Subsequent to committing the case to the trial Court, the charges were framed against the accused for the offence punishable under Section 306 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused did not plead guilty but claimed to be tried. -8-
7. The prosecution in order to substantiate its case against the accused got examined in all PWs.1 to 16 and got marked several documents as Exs.P1 to P10 and M.O.1 - two pieces of Saree. The contradictory statement and so also documents produced on behalf of defence was marked as per Exs.D1 to D4.
8. Subsequent to closure of evidence by the prosecution, the accused was examined as required under Section 313 of Cr.P.C. enabling incriminating statement appeared against him wherein he declined the truth of the evidence adduced by the prosecution so far. Subsequently, the accused was called upon to adduce any defence evidence as contemplated under Section 233 of Cr.P.C and accordingly, DW.1 - H.S.Narasappa was examined on the part of defence.
9. Subsequent to the closure of evidence on both the side, the trial Court heard the arguments advanced on behalf of prosecution and the defence counsel and on -9- appreciation of the entire oral and documentary evidence on record, passed the impugned judgment convicting the accused for the offence punishable under Section 306 of IPC and acquitted of the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is this judgment which is challenged under this appeal by urging various grounds.
10. Sri Hasmath Pasha, learned senior counsel for the appellant/accused contends that out of the prosecution witnesses, PW.2 is the complainant and father of deceased Ashwini, PW.3 is the sister of the complainant, PW.4 is the mother of the deceased, PW.6 is the elder brother of the deceased, PW.7 is the sister- in-law of the complainant, PW.9 is the elder brother of the complainant and PW.13 is the daughter of elder brother of PW.2 and all of them are relatives of the complainant and they are interested witnesses.
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11. Further, it is contended that the evidence of PW.2 who is the author of the complaint as per Ex.P2 does not corroborate with the evidence of any of the other witnesses that is PW.3, PW.4, PW.6, PW.7, PW.9 and PW.13 who are relatives and interested witnesses and there is inconsistency in their evidence with the material facts. Hence, the same is required for consistent by re-appreciating the evidence.
12. He further contends that PW.2 and PW.4 being the parents of the deceased, have not at all spoken about attitude of the accused for having disgraced, teased and tortured deceased Ashwini. Though PW.13 - Hemavathi is the alleged eye witness, but her evidence appears to be a created one, since her statement was recorded by the police after lapse of eight days from the date of incident. Further, the prosecution witnesses are hearsay witnesses and they have not witnessed the uttering of the words, but they state that they extracted
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the same through the mouth of deceased and other third parties. Since the evidence of these witnesses falls under the purview of hearsay evidence, the same is not at all admissible under the Evidence Act. Further, the evidence of PW.13 cannot be believed, since there is inordinate delay in recording her statement.
13. It is the further contention of appellant's counsel that though it is alleged in the case of the prosecution that on 30.07.2010 deceased Ashwini spoke to her father telephonically at about 2.30 p.m. stating that she will not go to the college as she is subjected to humiliation and disgrace by the accused, but her father being the complainant pacified her over telephone itself. The prosecution has failed to produce any such document to prove the said conversation. Whereas, PW.13 - Hemavathi has stated in the evidence that on 30.07.2010 at about 4 p.m. she saw some quarrel near
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the college which is a serious contradiction with regard to the time of the offence.
14. Further, it is contended that PW.2 who is the father of the deceased has stated that he heard through PW.4 that accused was loving her daughter and desires to marry her. If the same is accepted, there ought to have been some conciliation or meeting in that regard. But no such efforts have been made by PW.2. Further, the version of the prosecution is that the accused used to harass the deceased saying that he will disclose his love affairs with the deceased before the friends of the college and on account of insult and humiliation before her friends, she is alleged to have committed suicide. But to prove the humiliation extended by the accused, the prosecution has not adduced any evidence from any of the friends of the college of the deceased which goes to the root of the case put forth by the prosecution. Except the interested testimony of the relatives of the
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deceased, there is nothing on record to prove the alleged humiliation or torture meted out by the accused, to the deceased, to drive her to commit suicide.
15. It is further contended that from the evidence adduced by PWs.2, 4, 6, 9 and 13, the prosecution has failed to prove that the accused has tried to persuade the deceased Ashwini to fulfill his desire and he has made several attempts in that regard, as a result, the same was resisted by the deceased and she intimated to her parents and thereby, the deceased was subjected to humiliation, disgrace and disrepute. Though no such offence has been committed by the accused, in view of enmity, the complainant has foisted a false case against the accused only with an intention to implicate the accused for the alleged offences, though no such incident took place. There are major discrepancies and contradictions between the witnesses examined on behalf of the prosecution and the Court below was not
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justified in believing the said evidence and has given a go-by to the infirmities and contradictions thereby, it has resulted in miscarriage of justice.
16. He further contends that convicting the accused for the offence under Section 306 of IPC is against to the principles of natural justice and arbitrary in nature and there is no proper and convincing reason assigned by the Court below to convict the accused for the aforesaid offence. Hence, the impugned judgment is not sustainable in the eye of law and the same needs interference.
17. It is alleged that there was cordial relationship between the accused and family of PW.2 as one time the car belonging to the accused was hired for tour. Except that the accused had no manner of connection with the family of the complainant and when there is no relationship with the family of the deceased, the question of harassing, humiliating and teasing the
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deceased did not arise at all and the same does not attract the offence punishable under Section 306 of IPC. Therefore, it is contended that the prosecution has failed to bring home the guilt of the accused from the evidence on record that this accused used to harass and torture the deceased to driven her to commit suicide by placing cogent and convincing evidence. Though there are no eye witnesses to the incident but, the evidence of witnesses cited by the prosecution is inconsistent and does not corroborate with version of the prosecution. Hence, the impugned judgment of conviction and sentence rendered by the trial Court convicting the appellant/accused for the offence under Section 306 of IPC is bad in law and same is liable to be set aside.
18. The evidence of PW.13 - Hemavathi who is the cousin sister of deceased requires to be appreciated in a proper perspective manner relating to the ingredients of Section 306 of IPC. But the trial Court has held
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conviction for the aforesaid offence without considering the evidence of PWs.2, 4, 6 relating to elicitation to the inconsistencies, contradictions in the course of cross- examination and the same runs contrary to the evidence of PW.9 - being senior uncle of deceased Ashwini and the evidence of PW.13 who is none other than cousin sister of deceased Ashwini. There is no dispute that PW.6 is the elder brother of deceased Ashwini. But his evidence does not corroborate with the evidence of PW.2 who is the author of the complaint regarding accused falling in love with deceased Ashwini and also proposing her for marriage. But they are said to be the interested witnesses. Despite of it the trial Court has proceeded to hold conviction against the accused which is against the principles of natural justice, on that ground, the impugned judgment needs to be interfered by this Court.
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19. PWs.7, 8, 9, 10 and 11 inclusive of PW.15 have been subjected to examination by the prosecution and by defence counsel, but they did not support the case of the prosecution and turned hostile to the version of their statement in the theory put forth by the prosecution. But the same has not been appreciated by the trial Court as wherein their evidence runs contrary to the evidence of PWs.2, 4 and 6. Hence, the impugned judgment of the trial Court is liable to be set-aside.
20. The second limb of the arguments advanced by the learned senior counsel for the appellant is that there are no eye witnesses to the incident and the persons those who were alleged to be the eye witnesses cited on the part of the prosecution and moreover, PW.2 and 4 being parents, PW.6 being brother and PW.9 being senior uncle and PW.13 being the cousin sister of the deceased. But on 30.07.2010 in the campus of Lavanya Composite PU College there was some
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commotion that took among the students where deceased Ashwini was also present. But PW.13 did not give any information either to his uncle - PW.2 or to her aunt PW.4 relating to the presence of their daughter at the campus of Lavanya Composite PU College. But the evidence of these witnesses runs contrary to the evidence of DW.1 - H.S.Narasappa who is the Principal of the Lavanya Composite PU College in whose presence Exs.D1 to D4 - the attendance register was got marked. He states that on 30.7.2010 deceased Ashwini attended first period from 8.30 a.m. to 9.30 a.m. and that class was for Kannada subject. He states on that day, 4 classes were scheduled to be held, but deceased did not attend other 3 classes which were scheduled to be held from 9.30 a.m. to 12.30 p.m. The trial Court has failed take into consideration the defence theory that on 30.7.2010 deceased Ashwini had gone to picture known as 'Krishna In Love' with another boy and the same came to the knowledge of PW.4 - mother of deceased
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and she questioned and warned the deceased. As a result, the deceased committed suicide by depression. But the trial Court did not appreciate this aspect but went on to observe that false defence has been projected by the accused to overcome his criminal act which induced the deceased to commit suicide.
21. Further, it was elicited from the evidence of PW.2 that accused owned a car and used to hire it. It is admitted by PW.2 that for about 15 to 16 New Moon Days, himself i.e., PW.2, his wife, deceased Ashwini and friends had gone to Ukkadamaramma temple near Srirangapatna in the car driven by the accused. PW.2 also admits that himself and his family members were trusting the accused. When a suggestion was made to PW.2, whether he was willing to give the deceased in marriage to the accused if the accused had proposed to have marriage with deceased - Ashwini, PW.2 answered that if the deceased was willing to marry the accused,
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he and his family members would not have opposed for it and they could have given deceased in marriage to the accused. This part of the evidence has not been considered by the trial Court in a proper perspective manner.
22. The trial Court has misdirected as well as misinterpreted the evidence of PWs.2 and 4 in respect of Ex.P2 - complaint and further misinterpreted the evidence of PWs.6, 9 and 13. These witnesses have stated in their evidence relating to the accused and deceased Ashwini falling in love with each other prior to the incident. PW.16-the IO who laid the charge sheet has stated in his evidence that there could be omissions and commissions in respect of the statements given by the aforesaid material witnesses during the course of investigation.
23. Whereas in the evidence of all these witnesses there are major discrepancies and the same has not
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been appreciated by the trial Court in a proper perspective manner and moreover, several witnesses stated have given a complete go-by to the version of their statements. The testimony of the prosecution witnesses are filled with infirmities and contradictions. Therefore, the same needs interference of this Court by re-appreciating the entire evidence put forth by the prosecution in a proper perspective manner, if not, there shall be mis-carriage of justice to the accused as where he has been convicted for the offence under Section 306 of IPC.
24. Learned Senior Counsel in support of his arguments has placed the following reliance:
i) (2015) 7 scc 178 - Tomaso Bruno and another vs. State of Uttar Pradesh.
In this case, the Hon'ble Supreme Court has held that "best evidence which could have clinched the issue, was withheld by prosecution and the technology which now pervades every walk of life also provides reliable
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evidence - law too admits electronic evidence subject to certain precautions - electronic evidence, if omitted in a trial, creates serious doubts about the prosecution case."
In the instant case, PW.16 being the IO who laid the charge sheet against the accused has also recorded the statement of witnesses which are cited in the charge sheet. It is relevant to refer the statements of PWs.2, 4, 6, 9 and 18 but the evidence of PWs.2, 4 and 6 reveals that there was love affairs in between the deceased - Ashwini and the accused and also there was some telephonic information that the accused had took the deceased - Ashwini and her parents to certain places. But PW.16 did not made any venture to secure the call details records in respect of the mobile phone maintained by them. Therefore, the above reliance placed by the appellant's counsel is squarely applicable to the present case on hand, as it creates serious doubt in the case of prosecution relating to the accused causing death of deceased.
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Further in the said judgment the Hon'ble Supreme Court has extensively dealt with Section 114 III (g) of the Indian Evidence Act, 1872 wherein it is held that information accessible to investigating agency - duty to produce - optional presumption under Section 114 III (g) - failure to produce relevant evidence - adverse inference against party withholding information - circumstances warranting such course of action - Held, depends upon nature of evidence, its importance, etc - CCTV cameras installed at a public place like hotel - footage was accessible to investigating agency - burden - was on prosecution to produce the same before trial court - failure to produce footage - lower courts fell into error by believing prosecution witnesses that they viewed footage but nothing material was found - camera recordings ought to have been insisted upon - conviction set aside on account of this omission coupled with other factors."
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25. As per Section 114 Illustration (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 Illustration
(g) of the Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of the Negotiable Instructions Act, where the court has no option but to draw a statutory presumption, under Section 114 of the Evidence Act, the court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 Illustration (g) of the Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to
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be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.
26. In the instant case, the accused was frequently visiting the house of the deceased which was known to PWs.2, 4 and 6 and PW.9 - senior uncle and PW.13 who is a cousin sister. They have been subjected to examination on the part of the prosecution and also have given statement before the PW.16 - IO but he has not made any efforts to secure any calls detail records relating to telephonic conversation in between deceased
- Ashwini and the accused prior to the death as narrated in the complaint as per Ex.P2. Therefore, the above reliance placed by the appellant's counsel is squarely applicable to the case on hand.
ii) (2019) 3 SCC 315 M.Arjunan vs. State In the above the Hon'ble Supreme Court has held that Section 306 - Abetment of suicide - Essential
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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 abuse language will not, by itself, constitute abetment of suicide - there should be evidence capable of suggesting that accused intended by such act(s) 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 - ingredients of offence against accused from whom deceased had borrowed money, not made out in present case.
The essential ingredients of the offence under Section 306 IPC 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
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accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 of IPC.
27. Learned counsel for the appellant by relying on the aforesaid decisions of the Hon'ble Supreme Court, he contends that in the instant case, the prosecution did not put forth any cogent, corroborative and acceptable evidence to probabalise that the accused had extended harassment to the deceased in order to driven her to commit suicide by means of M.O.1-Saree that too being a college going student at Lavanya Composite PU College as narrated in complaint as per Ex.P2. But at a cursory glance of evidence of PWs.2, 4, 6 coupled with the evidence of PWs.9 and 13 which runs contrary to the evidence of PW.16 - IO who thoroughly investigated the case and laid the charge sheet. But in the evidence of PW.16 it is noticed that
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there are omissions and commissions in respect of the evidence of the above witnesses. Therefore, the theory put forth by the prosecution in order to bring home the guilt of the accused appears to be a cloud of doubt. The same has not been appreciated by the trial Court. Therefore, the impugned judgment of conviction and order of sentence rendered by the trial Court convicting accused for the offence under Section 306 of IPC, needs interference by this Court, if not, there shall be miscarriage of justice to the case of the appellant. Hence, on all these grounds, learned Senior counsel prays for allowing the appeal and setting-aside the impugned judgment of conviction rendered by the trial Court.
28. Per contra, learned HCGP for the State has taken me through the evidence of PW-2 Nagaraja and PW-4 Nagaveni, the parents of deceased Ashwini, in respect of the accused extending cruelty to the
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deceased. The accused was frequently visiting the house of the deceased. Therefore he was acquainted with the family members of the deceased. Because of this acquaintance, love affair developed between Ashwini and accused Naveen Kumar, which resulted in the deceased ending her life on 30.07.2010. On that day, the accused went to the Lavanya Composite PU college where deceased was studying in II PUC and in order to tarnish her image, in front of her friends, the accused declared that he had love affair with Ashwini and was intending to marry her and if any alliance comes to her, he will intimate them that he has impregnated her, and thereby created a nuisance in college campus. In the meanwhile, her cousin sister Hemavathi, PW-13 saw the incident which was taking place behind the college campus at Ashwatha Katte and said Hemavathi advised her cousin sister Ashwini to go to her house. Accordingly, deceased Ashwini reached her house and locked the door from inside and committed suicide by
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hanging with means of M.O.1 - Saree. These are all the evidence on behalf of the prosecution to prove the guilt of the accused who had caused the death of deceased Ashwini by inflicting high degree of humiliation.
29. There is no dispute that the accused is well acquainted with the family members i.e., the parents and brother of the deceased. But the trial Court has considered the evidence of not only these three witnesses, but also the evidence of PW-9 who is the senior uncle of deceased Ashwini, PW-13 who is the cousin sister of deceased, PW-16 being the I.O. who laid the charge-sheet against the accused after investigation. These are all the evidence on behalf of the prosecution, appreciated by the trial Court in passing the conviction order against the accused for the offence under Section 306 of IPC. Since the prosecution did not prove the guilt of the accused under Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989, the accused was
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acquitted of the said offence. But learned HCGP contends that merely because the accused was acquitted of the aforesaid offence, it cannot be a ground for seeking intervention of the impugned judgment of conviction and order of sentence rendered by the trial Court under Section 306 of IPC.
30. Though the defence counsel has thoroughly cross-examined PWs.2, 4, 6, 9 and 13 and elicited certain inconsistencies and contradictions in their evidence, it cannot disturb the prosecution of case that the accused extended cruelty to deceased Ashwini by saying as to marry him. Even two months prior to the incident, there was a warning issued by PW-2 and PW- 4, parents of the deceased that the accused should not come in the way of deceased Ashwini. Because of the said warning, the accused was not entering into her affairs for some time, but on 30.07.2010, the accused in order to take revenge against the deceased and her
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family members, went near her college and created nuisance as stated in their evidence.
31. PW-9, senior uncle of the accused, even though had been subjected to cross-examination, he did not specifically state in his evidence regarding the allegations made in the complaint Ex.P2, filed on 31.07.2010. According to prosecution case, there is a delay in lodging the complaint, but the said delay would not come in the way of the prosecution to establish the guilt of the accused under Section 306 of IPC.
32. The second limb of argument advanced by the learned HCGP for the State is that, even though the ingredients as constituted under Section 306 of IPC which is akin to Section 107 of IPC has not established, as contended by the learned Senior Counsel for the appellant Sri. Hasmat Pasha but, PW-2 and PW-4 have stated specifically in their evidence about their daughter Ashwini being meted with cruelty extended by the
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accused. Even though the accused had owned a car and also running poultry farm, he was frequently visiting the house of the deceased but the evidence of PWs.2, 4 and 6 were in conformity with the evidence of PW-13 who is none other than the cousin sister of the deceased. She has deposed that on 30.07.2010, she came across the incident which was taking place behind the college campus of the deceased and PW-13 herself advised the deceased to proceed to her house. However, this material witness has been subjected to thorough cross- examination wherein certain inconsistencies and contradictions were elicited which cannot cut the root of the prosecution to convict the accused by the trial Court under Section 306 of IPC.
33. He contends that the trial Court relying upon the evidence of these witnesses has rightly come to the conclusion that the prosecution has established the guilt of the accused beyond all reasonable doubts,
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wherein the accused is the cause for the death of deceased Ashwini who committed suicide by hanging in her parent's house with means of M.O.1 - Saree. These are all the contentions taken by learned HCGP for the State seeking for dismissal of the appeal by affirming the judgment of conviction and order of sentence rendered by the trial Court for the offence under Section 306 of IPC.
34. In the context of the contentions as taken by learned senior counsel for the appellant and learned HCGP for the State, it is relevant to refer Section 107 of IPC, which reads as under:
"107. Abetment of a thing:- A person abets the doing of a thing, who:
1. Instigates any person to do that thing; or
2. 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
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conspiracy, and in order to the doing of that thing; or
3. Intentionally aids, by any act or illegal omission, the doing of that thing."
35. In the scope of this section, it reveals as to, whoever, either prior to or at the time of 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. Offence of abetment by instigation/provocation depends upon the intention of the person who abets and not upon the act which is done by a person who has been abetted. Abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 of the IPC. But in the instant case, it is required to be dwelling an issue or otherwise, to say that the charge has been framed against the accused under Section 306 of IPC where the accused has caused the death of
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deceased Ashwini who committed suicide by hanging in the house of her parents by means of M.O.1 - Saree.
36. The family of the deceased consists of her parents and brother who are PWs.2, 4 and 6 respectively, and they are the vital witnesses. There is no dispute that deceased Ashwini was studying in II PUC in Lavanya Composite PU College, Doddaballapura and also she used to go to college by bus and sometimes the accused Naveen Kumar, who was acquainted to the family of deceased, used to drop her to her college. The family members of the deceased used to hire the car of the accused to proceed on tour and they were frequently visiting Srirangapatna during new moon days to visit Ukkadamaramma Temple. Therefore, it is definite that the accused was well acquainted with the family members of deceased Ashwini.
37. PW-14 Mithun Shilpi is the I.O. who received the complaint-Ex.P2 and registered FIR and thereafter,
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the case has been handed over to PW-16, the I.O. who proceeded with the case and investigated further and recorded the statement of witnesses and so also, secured certain documents such as Ex.P10 - caste certificate indicating the caste of accused - Naveen Kumar and deceased Ashwini and laid charge-sheet. PW-14 also secured the inquest report-Ex.P1 held over the dead body of the deceased on 31.07.2010. During the inquest, the I.O. has recorded the statements of PW-4 and PW-6, being the mother and brother of the deceased. The offence under Section 306 of IPC is said to be leveled against the accused even in the charge- sheet laid by the I.O. and the accused faced trial. But the ingredients of Section 107 of IPC and the provisions of Section 306 of IPC is required to be established by the prosecution by putting forth positive, cogent and consistent evidence without giving any cloud of doubt to prove the guilt of the accused.
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38. PW-13 Hemavathi being a vital witness to the case of prosecution did not give any specific information either to her aunt PW-4 or to her uncle PW-2. But she has given evidence before the court in order to establish the guilt against the accused. PW-13 had been subjected to cross-examination by defense counsel, but her evidence runs contrary to the evidence of PW-2 and PW-4. But at a cursory glance of the evidence of PW-2 and PW-4, coupled with the evidence of PW-6 and PW- 13, it appears to be cloud of doubt relating to the theory put forth by prosecution in respect of ingredients of Section 107 of IPC which is akin to Section 306 of IPC and caused for the death of the deceased as narrated in complaint.
39. Ex.P8 is the post-mortem report issued by the doctor who conducted autopsy over the dead body of the deceased and opined that the cause of death is asphyxia due to hanging. Therefore, there is no dispute that the
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death occurred in the house of PW-2 Nagaraj on 30.07.2010, where Ashwini committed suicide by hanging by means of M.O.1 - Saree, as on that day she entered into the house and bolted the door from inside. At that time, her mother PW-4 was in the neighbouring house. Though PW-4 was cross-examined, she did not specifically state in her evidence regarding the incident said to have taken place in the campus of Lavanya Composite PU College, Doddaballapura.
40. It is relevant to refer to the evidence of PW-2 Nagaraj who filed the complaint Ex.P2 on 31.07.2010. The same was received by PW-14 and based upon his complaint, FIR was registered and thereafter, case has been handed over to PW-16, who was the another I.O., who thoroughly investigated the case by conducting spot mahazar and laid charge-sheet against the accused and seized the Saree-M.O.1 used by the deceased Ashwini for hanging to commit suicide.
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41. PW-1 is a witness to the inquest mahazar which is marked at Ex.P1 and he has turned hostile to the prosecution case. Moreover, the prosecution did not establish the guilt of the accused even to the contents at Ex.P4 spot mahazar said to be conducted by the I.O. during the course of investigation. It is relevant to proceed in detail relating to the evidence which was facilitated by the prosecution in order to establish the guilt of the accused. PW-2 Nagaraj who was working as a Supervisor in a Garment Factory has specifically stated in his evidence that after receipt of information by his wife PW-4, about his daughter locking the door from inside and not opening the same, he informed her to open the door. Accordingly, PW-4 secured the neighbouring person and opened the door and saw her daughter Ashwini had committed suicide by hanging by means of M.O.1 - Saree. PW-2 has specifically stated in his evidence about the contents at Ex.P2-complaint
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pertaining to the incident that occurred 2 months prior to her death, relating to the mis-behaviour of the accused with his daughter Ashwini. He has further stated that he along with his wife and son secured the accused to their house and advised him not to come in the way of their daughter Ashwini and the accused assured them that he will not come in the way of deceased Ashwini. But on 30.07.2010, the accused went near the college where deceased Ashwini was studying and pestered her saying that in front of her friends he will declare that he had a love affair with her and further threatened her that if any alliance would come to her, he will inform them that he has impregnated her. This high degree of humiliation extended by the accused, made her to commit suicide by hanging as contended by the learned HCGP.
42. PW-2 was subjected to cross-examination at length. The same has been read out by the senior
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counsel appearing for the appellant. But this evidence is contrary to the evidence of PW-9, who is none other than the senior uncle of the deceased. PW-9 did not support the case of the prosecution relating to the allegations made in the complaint at Ex.P2. Therefore, the theory set up by the prosecution appears to be a cloud of doubt, but the same has not been appreciated by the trial Court in a proper perspective.
43. It is relevant to see whether the accused has caused higher degree of humiliation to deceased Ashwini which is the cause for her death who committed suicide by hanging. The same is required to be appreciated in this appeal, as the trial Court has misdirected and misinterpreted the evidence of PW-2 Nagaraj, who is the author of the complaint Ex.P2, so also the evidence of PW-4 Nagaveni, who is the mother of the deceased and the evidence of PW-6 Raghavendra, who is the brother of the deceased. But the evidence of
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these witnesses are contrary to the evidence of PW-9 Balanarasimhaiah, the senior uncle of the deceased and contradictory to the evidence of PW-13 Hemavathi, the cousin sister of the deceased, who was studying in II Year B.A. in Government College at Doddaballapura. PW-13, said to be a panch witness, had come across the college of the deceased on 30.07.2010 and saw the nuisance created by the accused near Ashwatha Katte behind the college campus. But the I.O. has not made any efforts to record the statements of the students who were present at the spot or even the lecturers of the college to substantiate that the incident was occurred as that in the college campus.
44. The Principal of Lavanya Composite PU College, Doddaballapura has been examined as DW-1 by the defense counsel. He has deposed that deceased Ashwini has attended the first period between 8.30 a.m. and 9.30 a.m. on 30.07.2010 and she has not attended
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the remaining 3 periods after 9.30 a.m. till 12.30 p.m. He has relied on the attendance register extracts at Exs.D1 to D4 in support of his evidence. The evidence of DW-1 has been thoroughly examined in this appeal and also compared with the evidence of PWs.2, 4 and 6, who are the vital witnesses on part of prosecution. But their evidence is contradictory to the evidence of DW-1 and PW-16, the I.O. who laid the charge-sheet against the accused as there was some omission and commission which is elicited during the course of examination of PW-16.
45. PW-3 is the sister of PW-2 Nagaraj. She has been subjected to examination on behalf of prosecution. She was not residing in the village of the deceased Ashwini i.e., Tapasihalli, but was residing with her husband in another village. She has stated in her evidence that she received an information about the death of Ashwini who committed suicide by hanging in
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her parent's house. Soon after receipt of the information, she rushed to Tapasihalli village and came to know that the deceased had committed suicide due to the act of the accused. In the cross-examination, it is elicited that accused Naveen Kumar and deceased Ashwini had long back come to the village of PW-3 and the deceased introduced the accused as her friend. It is relevant to refer that her evidence is a hearsay evidence. But she is a close relative of deceased Ashwini. Even though she has stated in her evidence that the deceased committed suicide due to the acts of the accused, still, it is for the prosecution to establish the guilt of the accused by putting forth cogent, corroborative and consistent evidence to probabilise that the accused had caused for the death of deceased Ashwini who committed suicide by hanging.
46. PW-4 Nagaveni, who is none other than the mother of deceased Ashwini, has stated in her evidence
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that the accused was well acquainted with the family members of the deceased and was frequently visiting their house. She has further stated that two months prior to the incident, they had called the accused to their house and warned him not to come in the way of their daughter. Because of the said warning, the accused had not come in the way of their daughter and also had not come to their house for certain period. She has deposed that on 30.07.2010 when her daughter came from college in the evening, PW-4 was in her neighboring house and her daughter locked the door from inside and when she did not open the door for some time, she informed the same to her husband over phone and he in turn asked to open the door. With the help of her neighbour, she broke open the door and saw her daughter Ashwini had committed suicide by hanging. However, accused has been warned, but neither complaint has filed nor advised to him by elderly person.
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47. PW-6 Raghavendra, who is the brother of the deceased, has deposed that 3 days prior to the deceased committing suicide, she had informed him that the accused had come to college and was pestering her saying that he is in love with her and wants to marry her. On hearing this, he and his parents had called the accused to their house and had warned him not to come in the way of his sister. The accused had assured them that he will not come in her way. But on 30.07.2010, he was informed by his cousin in the evening that his sister Ashwini had committed suicide by hanging. But the evidence of PW-2, PW-4 and PW-6 runs contrary to the evidence of PW-9 being an elder brother of PW-2 and further contradictory to the evidence of PW-13 - Hemavathi who is a cousin sister of deceased Ashwini.
48. To come to the conclusion whether the deceased has committed suicide by hanging due to the above said acts of the accused or not, it is required to
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re-appreciate the entire evidence, as the trial Court has not appreciated the evidence in proper perspective manner. But when the evidence is required to be established by the prosecution beyond all reasonable doubt, it should be corroborative, consistent and highly probable. But in the present case it is not as such. The evidence of PW-4 Nagaveni clearly reveals that there was acquaintance of the deceased Ashwini and the accused. Whether the ingredients of the offence under Section 306 of IPC which is akin to Section 107 of IPC has been established by the prosecution in order to secure conviction, is the vital point has to be considered by referring the evidence of PW-2, PW-4 and PW-6.
49. PW-6 who is the brother of the deceased has given his evidence in detail. But his evidence also stands on the same footing as that of his parents PW-2 and PW-4. But, their evidence is contrary to the evidence of PW-9. The evidence of PW-2 and PW-4 is
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required to be re-appreciated in respect of the allegations made in the complaint at Ex.P2 and Exs.P1, P3 and P4. PWs.2, 4, 6, 9 and 13 are the material witnesses on part of prosecution and these witnesses have been subjected to cross-examination thoroughly. Their evidence reveals that the deceased had pleaded inability to marry the accused Naveen Kumar as he belonged to Vokkaliga by caste and deceased belongs to Schedule Tribe. Ex.P10 is the report issued by the Tahasildar in respect of the accused, that he belongs to Vokkaliga Community.
50. Though the offence under Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989, has been framed against the accused, the trial Court has acquitted the accused of the said offence. But it is required to establish as to whether the accused has caused the death of the deceased who committed suicide by hanging. There is no doubt about PW-13
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Hemavathi, who is the cousin sister of deceased Ashwini, who has deposed that on 30.07.2010 she noticed that the accused had come to the college campus and near Ashwatha Katte, in front of all students, he was creating nuisance and in order to tarnish the image of deceased Ashwini, he was pestering the deceased saying that he was in love with her and wants to marry her. But in the cross-examination she has stated that when police had come to the house of the deceased after she committed suicide, she has not informed the police about the incident that took place on 30.07.2010 near Ashwatha Katte. The evidence of PW-13 has to be scrutinized in greater care as she is an interested witness and further her evidence is contrary to the evidence of PW-9 and to the evidence of PW-2 and PW-4.
51. PW-13 is the relative of deceased Ashwini. There is absolutely no dispute about the death of
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deceased Ashwini. But the evidence of PW-13 has to be scrutinized inasmuch as to, whether the accused had caused the death of the deceased who committed suicide, as he was pestering her not only on 30.07.2010, also since from several days, as they were acquainted. But on that day, in the evening PW-13 was coming from her college and found gathering of certain students near the place mentioned in Ex.P4 spot mahazar, said to be prepared by PW-16, the I.O. PW-13 has deposed that she did not give any specific information immediately either to PW-2 or PW-4, that itself indicates that theory put forth by the prosecution are appeared to be doubtful and it is contradictory to the evidence of PW-2 and PW-4. In the cross- examination of PW-4, it was suggested that her sister had informed her through phone that the deceased Ashwini had gone to a movie namely "Krishna in love"
with a boy on 30.07.2010 and that PW-4 had enquired
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regarding this with her daughter Ashwini, but PW-4 has denied this suggestion.
52. At a cursory glance of the evidence of all these witnesses, one can gather that the deceased Ashwini appears to be depressed, and on 30.07.2010 after returning from college, she committed suicide by hanging. Therefore, at this stage, it is relevant to state that whether the family members had caused her mental depression or it was caused by the accused, is the duty cast upon the prosecution to establish the guilt against the accused by putting forth corroborative, consistent and acceptable evidence to probabalise that the accused had caused the death of deceased Ashwini who committed suicide by hanging in her parent's house on 30.07.2010.
53. It is relevant to refer to the evidence of DW-1 who is none other than the Principal of Lavanya Composite PU College, Doddaballapur where the
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deceased Ashwini was studying. He has specifically stated in his evidence that on 30.07.2010, the classes were scheduled to be held from 8.30 a.m. till 12.30 p.m. But deceased Ashwini had attended only the first period between 8.30 a.m. and 9.30 a.m., and had not attend the remaining classes from 9.30 a.m. till 12.30 p.m., which is evident from the attendance registers marked at Exs.D1 to D4. One cannot rule out the registers which are maintained in that college. Even though PW- 16, I.O. has thoroughly investigated the case, he has not made any efforts either to record the statement of the lecturers or students who were said to be present near Ashwatha Katte behind the college campus, when the accused is said to have pestered the deceased Ashwini on 30.07.2010.
54. Therefore, the evidence of PWs.2, 4, 6, 9 and 13 has to be re-appreciated coupled with the evidence of DW-1, even though it is defense evidence. But in
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totality of the evidence of PWs.2, 4, 6, 9 and 13, the trial Court has observed that it cannot be ruled out that on 30.07.2010, the deceased might be present in the class after 9.30 a.m. also and not responded to the attendance call or she might be absent from the class, but might have remained in the college till afternoon. Though this observation is made by the trial Court by appreciating the evidence on behalf of the prosecution, but, unless specific evidence or any documentary evidence is produced to prove the guilt of the accused, no credence can be given to the evidence of PW-2 and PW-4, merely because they are the parents of deceased Ashwini and so also the evidence of PW-6 and PW-13. But in this appeal, all these evidence requires to be re- appreciated, if not, certainly there shall be miscarriage of justice to the accused where the prosecution is required to establish the guilt of the accused by putting forth cogent, corroborative, consistent and acceptable evidence relating to the ingredients of Section 306 of
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IPC. Merely because the accused was well acquainted with the family members of deceased Ashwini, it cannot be said that he had caused the death of the deceased as contended by the prosecution. It is found in the evidence of PWs.2, 4 and 6 that even prior to the death of deceased Ashwini, the accused was frequently visiting their house and hence, the accused developing love affair with the deceased or not, was within the knowledge of her family members. Hence, they have to establish the case of the prosecution. But the trial Court has observed counting of evidence, but not counting of witness. Certainly, counting of evidence is the cardinal principle of criminal justice. The guilt of the accused ought to have established by the prosecution beyond all reasonable doubts by putting forth cogent, corroborative, consistent and acceptable evidence to probabilise that the accused had caused the death of the deceased, if not, there shall be miscarriage of justice to the accused. Whereas, in this appeal it is
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required to refer to the judgment of the trial Court wherein the trial Court has acquitted the accused of the offence under Section 3(2)(v) of the SC & ST (PA) Act. However, the trial Court has misdirected and also misinterpreted the evidence of PWs.2, 4 and 6 coupled with the evidence of PWs.13 and 16, in convicting the accused for the offence under Section 306 of IPC. Therefore, in this appeal, it is required to revisit the impugned judgment
55. In view of the aforesaid reasons and findings, the impugned judgment of conviction and order of sentence rendered by the trial Court for the offence under Section 306 of IPC, requires to be interfered with, as there is a cloud of doubt in the evidence adduced by the prosecution witnesses. When there is doubt in a theory put forth by the prosecution, certainly the benefit of such doubt has to be accrued in favour of the accused. Therefore, the judgment of conviction and
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sentence rendered by the trial Court requires interference of the aforesaid reasons and findings. Accordingly I proceed to pass the following:
ORDER The appeal preferred by the appellant/accused is hereby allowed.
The judgment of conviction and order of sentence rendered by the trial Court in Spl.C.No.151/2010 dated 24.11.2011, is hereby set aside.
Consequently, the accused is acquitted of the offence punishable under Section 306 of IPC.
The bail bond executed by the accused stands cancelled.
SD/-
JUDGE DKB/RD