Karnataka High Court
Malleshappa S/O Somappa Gumageri vs State Of Karnataka on 10 May, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.101111 OF 2019
BETWEEN:
MALLESHAPPA
S/O SOMAPPA GUMAGERI
AGE:44 YEARS,
OCC: AGRICULTURE / ADVOCATE
R/O:CHILAKAMUKI, DT:KOPPAL.
... PETITIONER
(BY SRI NEELENDRA D.GUNDE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY KOPPAL RURAL POLICE STATION
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR
HIGH COURT BUILDING
DHARWAD - 580 001.
2. SMT.HULIGEMMA HANUMANTAPPA HULI
AGE: 36 YEARS, OCCP.: HOUSELHOLD
R/O. : CHILAKAMUKI
TQ. & DIST. : KOPPAL.
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR R1;
SRI RAJSHEKHAR BURJI, ADVOCATE FOR R2)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION FILED
UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ORDER
DATED 02/04/2019 PASSED BY THE LEARNED DISTRICT &
SESSIONS JUDGE IN SC (AC): 20/2019 THEREBY TAKING
COGNIZANCE FOR THE ALLEGED OFFENCES & REGISTERING THE
CASE AS SC (AC), AS AGAINST THE PETITIONER WHICH IS
REGISTERED WITH THE KOPPAL RURAL POLICE FOR THE
OFFENCES PUNISHABLE U/S. 306, 114 R/W 149 OF IPC &
SECTION 3(2)(V-a) OF SC/ST ACT-2015 & ENTIRE PROCEEDINGS IN
THE SAID CRIME.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.02.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner is before this Court calling in question proceedings in SC(AC) No.20 of 2019 pending before the District and Sessions Judge, Koppal arising out of Crime No.239 of 2018 registered for offences punishable under Sections 149, 114, 306 of the IPC and under Sections 3(2)(V-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2015 ('the Act' for short).
2. Heard Sri Neelendra D.Gunde, learned counsel appearing for the petitioner, Sri Ramesh Chigari, learned High 3 Court Government Pleader appearing for respondent No.1 and Sri Rajashekar Burji, learned counsel appearing for the respondent No.2.
3. Brief facts leading to the filing of the present petition, as borne out from the case of the prosecution, are as follows:-
On 03-11-2018 a complaint is registered by the 2nd respondent-complainant alleging that her husband committed suicide and the petitioner along with others had abetted such suicide which would become an offence punishable under Section 306 of the IPC. A brief history that is narrated in the complaint is that, in the year 2015 accused No.1 one Smt. Manjula, wife of Durgappa had developed illicit relationship with one Hanumanthappa, accused No.2 and the entire village came to know about it, after which, accused 1 and 2 left the village.
Thereafter both accused 1 and 2 returned to the village.
Accused No.1 appears to have alleged that because of the husband of the complainant she went with accused No.2 and that has become case. Further she appears to have told the 4 husband of the complainant that such case should be resolved before the police and it would cost him about Rs.30,000/-. Being frustrated by the said demand, the complainant alleges that her husband comes home and confessed what conversation that happened between accused No.1 and him and also with regard to the money that would be the expenditure for settling the case before the police. The complainant further narrates that the conversation ended on 3.11.2018 and that on 5.11.2018 at about 5.30 a.m. she noticed that her husband committed suicide by hanging himself in the house and she registers the complaint at 1.30 pm on the very day. The police, after investigation, have also filed a charge sheet in the matter against the petitioner and other accused. The petitioner is accused No.11 and is before this Court calling in question the proceedings instituted against him.
4. The learned counsel appearing for the petitioner submits that insofar as the present accused is concerned, the ingredients as are necessary under Section 107 of the IPC to 5 prove the offence under Section 306 of the IPC are absent.
There is no prima facie material even against the petitioner to proceed against him with the trial and would seek quashing of the proceedings against the petitioner.
5. The learned counsel representing the 2nd respondent-
complainant would contend that the complaint clearly makes out a case against the petitioner along with others and he has insisted the deceased to arrange for Rs.30,000/- to settle the matter before the police and would submit that it is a matter for trial for the petitioner along with others to come out clean.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
7. The afore-narrated facts and chain of events are not in dispute and therefore, are not reiterated. The entire issue springs from commission of suicide by the husband of the complainant on the morning of 05-11-2018 and the complaint 6 being registered on the same day. It is germane to notice the complaint. The complaint reads as follows:
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(¸Àt FgÀ¥Àà §AzÀÆPï) (ºÀÄ°UɪÀé ºÀĽî)
¸Á|| a®PÀªÀÄÄT."
(Emphasis added)
Except the highlighted portion in the complaint, there is nothing against the petitioner herein while several narrations are made against other accused. Insofar as the petitioner is concerned, it is the allegation of the complainant that to settle the matter of illicit relationship of accused No.1 with accused No.2 before the police Rs.30,000/- the expenditure was indicated. Except this statement there is nothing in the complaint against the petitioner. The police, after investigation, filed a charge sheet.
Column No.17 of the charge sheet reads as follows:
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The charge sheet though narrates what was narrated in the complaint, at the end indicates that against accused No.11/ petitioner herein, the charge is already established. It is at that point, the petitioner knocks the doors of this Court.
8. Since the entire issue springs from the death of the husband of the complainant who died by committing suicide and the allegation against the petitioner being for the offences punishable under abetment to suicide, it is germane to consider Section 306 of the IPC which reads as follows:-
10"306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Abetment as found in Section 306 of the IPC is what is described in Section 107 of the IPC. Section 107 of the IPC reads as under:
"107. Abetment of a thing.- A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.- A person who, by willful misrepresentation, or by willful 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."
Therefore, in terms of Section 306 of the IPC whoever abets a particular thing as defined under Section 107 of the IPC would become punishable under Section 306 of the IPC. Section 107 of the IPC mandates that a person abets doing of a thing and instigates any person to do so or engages with one or more other person in any conspiracy for doing such a thing or intentionally aids, by any act or illegal omission of doing of that thing.
Therefore, for an offence punishable under Section 306 of the 11 IPC for abetment to suicide, the ingredients under Section 107 of the IPC are to be present in a given case.
9. The Apex Court, interpreting Section 306 of the IPC, has in several judgments held that existence of mens rea or instigation is necessary to make out an offence punishable under Section 306 of the IPC. The Apex Court in the case of GURCHARAN SINGH v. STATE OF PUNJAB1 has held as follows:-
"20. Section 306 of the Code prescribes the punishment for abetment of suicide and is designed thus:
"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or 1 (2017) 1 SCC 433 12 omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide.
In the light of afore-extracted judgment of the Apex Court, to attribute act of abetment to suicide against an accused, there has to be some link and proximity of the accused with the deceased who committed suicide. The Apex Court in the case of RAMESH KUMAR v. STATE OF CHHATTISGARH2 considers what is abetment and delineates as follows:-
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
21. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73:
1994 SCC (Cri) 107] this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial 2 (2001) 9 SCC 618 13 for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
The Apex Court, in a recent judgment, in the case of GURUCHARAN SINGH v. STATE OF PUNJAB3 while considering the entire spectrum of law has held as follows:
"13. Section 107 IPC defines "abetment" and in this case, the following part of the section will bear consideration:
"107. Abetment of a thing.--A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or *** Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing."
14. The definition quoted above makes it clear that whenever a person instigates or intentionally aids by any act or illegal omission, the doing of a thing, a person can be said to have abetted in doing that thing.
15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Section 107 IPC, the state of mind to commit a particular crime must be 3 (2020) 10 SCC 200 14 visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the trial court as well as the High Court never examined whether the appellant had the mens rea for the crime he is held to have committed. The conviction of the appellant by the trial court as well as the High Court on the theory that the woman with two young kids might have committed suicide possibly because of the harassment faced by her in the matrimonial house is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.
.... .... ....
18. In Mangat Ram v. State of Haryana [Mangat
Ram v. State of Haryana, (2014) 12 SCC 595: (2014) 5 SCC (Cri) 127] , which again was a case of wife's unnatural death, speaking for the Division Bench, K.S.P. Radhakrishnan, J. rightly observed as under : (SCC p. 606, para 24) "24. We find it difficult to comprehend the reasoning of the High Court [Mangat Ram v. State of Haryana, Criminal Appeal No. 592-SB of 1997, decided on 27-5-2008 (P&H)] that "no prudent man is to commit suicide unless abetted to do so". A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning."
15The Apex Court, in a later judgment, in the case of KANCHAN SHARMA v. STATE OF UTTAR PRADESH4 has held as follows:
"9. Having heard learned counsel on both sides, we have perused the impugned order and other material placed on record. Except the self-serving statements of the complainant and other witnesses stating that deceased was in love with the appellant, there is no other material to show that appellant was maintaining any relation with the deceased. From the material placed on record it is clear that on the date of incident on 04.05.2018 deceased went to the house of the appellant and consumed poison by taking out from a small bottle which he has carried in his pocket. Merely because he consumed poison in front of the house of the appellant, that itself will not indicate any relation of the appellant with the deceased. 'Abetment' involves mental process of instigating a person or intentionally aiding a person in doing of a thing. Without positive act on the part of the accused to instigate or aid in committing suicide, no one can be convicted for offence under Section 306, IPC. To proceed against any person for the offence under Section 306 IPC it requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. There is nothing on record to show that appellant was maintaining relation with the deceased and further there is absolutely no material to allege that appellant abetted for suicide of the deceased within the meaning of Section 306, IPC. Even with regard to offence alleged under Section 3(2)(v) of the Act it is to be noticed that except vague and bald statement that the appellant and other family members abused deceased by uttering casteist words but there is nothing on record to show to attract any of the ingredients for the alleged offence also. This Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi)1 had an occasion to deal with the aspect of abetment. In the said case this Court has opined that there should be an 4 2021 SCC OnLine SC 737 16 intention to provoke, incite or encourage the doing of an act by the accused. Besides, the judgment also observed that each person's suicidability pattern is different from the other and each person has his own idea of self-esteem and self-respect. In the said judgment it is held that it is impossible to lay down any straightjacket formula dealing with the cases of suicide and each case has to be decided on the basis of its own facts and circumstances. In the case of Amalendu Pal @ Jhantu v. State of West Bengal2 in order to bring a case within the purview of Section 306, IPC this Court has held as under:
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
10. In the judgment in the case of S.S. Chheena v. Vijay Kumar Mahajan3 this Court reiterated the ingredients of offence 17 of Section 306 IPC. Paragraph 25 of the judgment reads as under:
"25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
(Emphasis supplied) If the delineation of the principle of Sections 107 and 306 of the IPC as made by the Apex Court in the afore-quoted judgments is noticed qua the facts obtaining in the case at hand, it cannot but be held that further proceedings against the petitioner cannot be permitted to be continued, as the complaint except stating that the petitioner had offered to settle the issue and also had indicated that it would cost Rs.30,000/- nothing is alleged against him and that it cannot become the reason or so much of an instigation to the deceased to commit suicide. Moreover, it is the version of the complainant that it is not a case where there 18 has been history of such kind against the petitioner or the deceased had left behind a death note implicating the petitioner.
10. In the teeth of the aforesaid facts, the Apex Court in the very judgment of KANCHAN SHARMA (supra) has held as follows:
"11. In the judgment in the case of Rajiv Thapar v. Madan Lal Kapur this Court has considered the scope of the provision under Section 482, Cr.PC and has laid down the steps which should be followed by the High Court to determine the veracity of a prayer for quashing of proceedings in exercise of power under Section 482, Cr.PC. Paragraph 30 containing the four steps read as under:
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the 19 prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
12. By applying the aforesaid ratio decided by this Court, we have carefully scrutinized the material on record and examined the facts of the case on hand. Except the statement that the deceased was in relation with the appellant, there is no material at all to show that appellant was maintaining any relation with the deceased. In fact, at earlier point of time when the deceased was stalking the appellant, the appellant along with her father went to the police station complained about the calls which were being made by the deceased to the appellant. Same is evident from the statement of S.I. Manoj Kumar recorded on 05.07.2018. In his statement recorded he has clearly deposed that the father along with the appellant went to the police post and complained against the deceased who was continuously calling the appellant and proposing that she should marry him with a threat that he will die otherwise. Having regard to such material placed on record and in absence of any material within the meaning of Section 107 of IPC, there is absolutely no basis to proceed against the appellant for the alleged offence under Section 306 IPC and Section 3(2)(v) of the Act. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever.
2013. In view of the same, we are of the view that the High Court has committed error in rejecting the application filed by the appellant by merely recording a finding that in view of the factual disputes same cannot be decided in a petition under Section 482, Cr.PC."
In the light of the judgments of the Apex Court and the facts obtaining in the case at hand qua the petitioner/accused No.11, further proceedings if permitted to continue, would result in miscarriage of justice and would become an abuse of the process of law.
11. For the aforesaid reasons, I pass the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The impugned proceedings in SC (AC) No.20 of 2019 pending before the District and Sessions Judge at Koppal stand quashed qua the petitioner/accused No.11.21
(iii) It is made clear that the observations made in the course of this order will not influence or bind any other accused in further proceedings before the competent court.
Sd/-
JUDGE bkp CT:MJ