Karnataka High Court
Sikander @ Gouruba vs State Of Karnataka on 16 February, 2016
Equivalent citations: 2016 (3) AKR 650, (2016) 4 KCCR 505
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL APPEAL NO.267/2010
BETWEEN:
Sikander @ Gouruba,
S/o. Ameer Khan,
Aged about 24 years,
R/at No.131, 2nd Main, 5th Cross,
Valmikinagar, Mysore Road,
Bangalore.
...APPELLANT
(By Sri A.N. Radhakrishna, Adv.)
AND:
State of Karnataka,
By Chamarajpet Police,
Represented by the State Public Prosecutor,
High Court Buildings,
Bangalore.
... RESPONDENT
(By Sri B. Visweswaraiah, HCGP)
This Crl.A. is filed under S.374(2) Cr.P.C., praying to
set aside the judgment of conviction and sentence dated
31.12.2009/02.01.2010 passed in S.C.No.62/2007 on the
file of Addl. Sessions Judge, FTC-XIV, Bangalore City,
convicting the appellant/ accused for the offence
punishable under S.306 of IPC.
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This Crl.A. coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is directed against the Judgment of Sessions Judge - FTC - XIV, Bengaluru City, dated 31.12.2009 / 02.01.2010 passed in S.C. No.62/2007. The appellant was convicted for the offence punishable under S.306 IPC and was sentenced to undergo simple imprisonment for a period of 2 years and 6 months and pay fine of `5,000/-. Out of the fine amount, `4,000/- was ordered to be paid to PW-6 / Jabeen Taj i.e., mother of deceased and in default of payment of fine, the accused was directed to undergo further S.I. for a further period of 6 months.
2. The brief facts of the prosecution case which are relevant to decide this appeal can be stated as follows:
The appellant - accused and Yasin Taj @ Yasmin Taj @ Jasmin (deceased) daughter of PW-6 Smt. Jabeen Taj, (hereinafter referred to as 'deceased'), got married and 3 were residing in the first floor of the house of sister of the accused, situated at 4th Cross, Valmikinagar, within the limits of Chamarajpet Police Station. While residing so, the accused and the deceased were quarrelling regarding matrimonial matters. The accused shifted the residence to House No.1916/80, 2nd Main, Vittalnagar, belonging to PW- 2 - Sri Abdul Khareem. It was alleged that the accused demanded the deceased to bring money from her mother and while doing so, subjected her to physical and mental harassment and cruelty and as a result, on 03.12.2005, at 4.00 p.m., Yasmin Taj attempted to commit suicide by consuming poison and that the accused and PW-9 - Sri Babu, shifted her to the Nursing Home of PW-4 - Dr. Jagadish for treatment. During transit to Kempegowda Hospital for further treatment, Yasmin Taj died. Mother of deceased / PW-6, having lodged a complaint vide Ex.P5, the PSI - PW-5 registered case in Crime No.288/2005, for the offences punishable under Ss. 498A of 304B of IPC and the FIR vide Ex.P6 was sent to the learned Magistrate.
The accused was arrested on 06.12.2005 and was 4 produced before the Magistrate. PW-17 took up the investigation and after completion of investigation, filed the charge-sheet. The case being triable by the Court of Sessions, learned Magistrate committed the case to the Sessions Court which was registered as S.C. No.62/2007.
3. The accused on appearance having pleaded not guilty and claimed to be tried, the prosecution, in order to prove its case, examined 18 witnesses and marked 14 documents. The accused when examined under S.313 Cr.P.C., denied the incriminating circumstances appearing against him in the statements of the prosecution witnesses. It is a case of total denial by the accused. Upon hearing the arguments of the learned Public Prosecutor and the learned counsel for the accused, the learned Trial Judge held that the prosecution failed to prove beyond all reasonable doubts that there was marriage between the accused and the deceased and that there was no demand of dowry. However, the Trial Judge, with reference to the evidence of P.Ws. 6, 9 and 10, held 5 that the accused did not allow the deceased to share her feelings with others and out of fear, that if she share her feelings, he would intensify the ill-treatment and having been made to lead an isolated life and subjected to fearful life and ill-treatment, having no other way, committed suicide. As a result, the accused was found guilty of the offence punishable under S.306 IPC. Said offence being a minor offence of S.304B IPC, the accused was convicted and sentenced, as above.
4. Sri A.N. Radhakrishna, learned advocate for the appellant submitted that the conviction of the appellant is totally unsustainable as no ingredient of the offence under S.306 IPC has been made out by the prosecution by examination of the witnesses and the exhibited documents. He submitted that there being misreading of the evidence of PWs 6, 9 and 10, the finding recorded by the Trial Judge is perverse and is liable to be set aside.
5. Sri B. Visweswaraiah, learned HCGP, appearing for the respondents, on the other hand made submissions 6 in support of the finding recorded by the Trial Judge. He submitted that there being no dispute with regard to the deceased having lived with the accused, immediately prior to her death and the deceased having consumed poison while staying with the accused, in a house obtained on rent and there being evidence of harassment and ill- treatment by the accused, which amounts to abetment, the Trial Judge is justified in holding that death of Yasmin Taj is suicidal and the act being on account of the abetment caused by the accused, is punishable under S.306 IPC.
6. S.306 IPC is attracted when a person commits suicide and there is abetment in the matter of commission of such suicide and such abettor is liable to be punished with imprisonment of either description for a term which may extend to 10 years and also liable to fine. 'Abetment' has been defined under S.107 of IPC. It is three parts, with two explanations. Having regard to the submissions made by learned counsel on both sides, the point for 7 consideration is, whether the prosecution has placed on record any material on the basis of which it can be concluded, that on the instigation or abetment of the accused, Yasmin Taj committed suicide?
7. PW-1 is the owner of the house wherein the accused and the deceased stayed. PW-2 is the husband of PW-1. PW-3 is the father of the accused. PWs 1 to 3 have not supported the prosecution. PW-4 is the Medical Officer and has stated that PW-9 and the accused had brought Yasmin Taj, while she was alive, for treatment. PW-4 has treated Yasmin Taj, as is evident from Ex.P4. While she was being shifted to Kempegowda Hospital, after the treatment by PW-4, has died.
8. PW-6 is mother of the deceased. She filed the complaint vide Ex.P5. The PSI - PW-5, registered case in Crime No.288/2005 and sent the FIR / Ex.P6, to the learned Magistrate. PW-17 conducted the investigation and filed the charge-sheet. During the course of investigation, PW-17 recorded the statements of the 8 prosecution witnesses. PW-7 is a friend of the accused and also the deceased. PW-8 is the wife of PW-7. Both PWs 7 and 8 have turned hostile. PW-9 is the maternal uncle of the deceased. He has stated that the deceased was subjected to harassment by the accused, in matters relating to matrimonial aspects. PW-10 is the wife of PW-9 and has deposed in similar terms, as that of her husband. PWs 11 and 12 are the panchas to Ex.P8, the inquest mahazar. PW-13 has conducted the post-mortem and Ex.P10 is the report. The death of Yasmin Taj has occasioned due to respiratory failure, as per the opinion of PW-13. PW-14 is the pancha to Ex.P7 - spot mahazar. PW-15 is the Scientific Officer in Toxology, FSL, Bengaluru and his report is at Ex.P11. PW-16 is the Head Constable, who arrested the accused on 06.12.2004 and submitted the report / Ex.P12. PW-18 is the Special Tahsildar, Bengaluru North Taluk and conducted the inquest and recorded the statements vide Ex.P8.
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9. The finding of acquittal recorded by the learned Magistrate in respect of offences under Ss.498A and 304B IPC has not been assailed by the prosecution. The Trial Judge has relied upon the testimony of PWs 6, 9 and 10, to record the finding of guilt, under S.306 IPC.
10. In MAHENDRA SINGH AND ANOTHER Vs. STATE OF M.P., 1995 SUPP (3) SCC 731, the allegation leveled was based on the dying declaration of the deceased stating "my mother in law and husband and sister in law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed, I want to die by burning." Apex Court, on aforementioned allegations, came to the conclusion that by no stretch the ingredients of abetment is attracted i.e., on the basis of the statement made by the deceased. It has been held that abetment involves a mental process of instigating a person or intentionally aiding a person in 10 doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It has been further held that to attract S.306 IPC, there has to be a clear mens rea to commit the offence. It has been concluded that merely on the basis of aforesaid allegation of harassment of the deceased, the conviction under S.306 IPC cannot be directed much less sustained in law.
11. In RAMESH KUMAR Vs. STATE OF CHHATTISGARH, (2001) 9 SCC 618, Apex Court had the occasion to deal with a case of almost similar nature. In a dispute between the spouses, the husband uttered 'you are free to do whatever you like and go wherever you like'. Thereafter, the wife of the accused committed suicide. When the matter reached Apex Court, examining the different aspects of the meaning of 'instigation', it has been elaborated 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 11 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."
12. In CHITRESH KUMAR CHOPRA Vs. STATE (GOVERNMENT OF NCT OF DELHI), (2009) 11 SCALE 24, Apex Court had occasion to deal with the aspects relating to abetment and it has been opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from others and each person has his own idea of self- esteem and self-respect and therefore it is impossible to lay down any straight-jacket formula in dealing with such cases and that each case has to be decided on the basis of its own facts and circumstances.
13. In STATE OF WEST BENGAL Vs. ORILAL JAISWAL AND ANOTHER, (1994) 1 SCC 73, Apex Court has cautioned, that the Court should be extremely careful in assessing the 12 facts and circumstances of each case and the evidence adduced in trial for the purpose of finding, whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. It has been made clear that, if it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference 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.
14. In M. MOHAN Vs. STATE, 2011 CRL. L.J. 1900, it has been held as follows:
"45. 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.
46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. 13 It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."
15. Reading of S.306 IPC makes it clear, that the act of abetment plays a vital role. 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 directed / attracted, much less sustained. While examining the prosecution case, it has to be found out, whether there was an active and direct role of the accused which led the deceased to commit suicide seeing no option. It is for the prosecution to prove beyond all reasonable doubts the active or direct role of the accused with regard to the alleged trial.
16. Evidence of PWs 6, 9 and 10, in the present case, does not show the active role or direct involvement of the accused which led to the committing of suicide by the deceased. The whole prosecution case was that there 14 was a marriage between the accused and the deceased and they lived together and in fact, in certain statements there is reference to even a child. The prosecution case having failed with regard to demand for dowry and the consequential action i.e., for the offence under S.498A and 304B of IPC, without a semblance of legal evidence with regard to abetment by the accused in the matter of the suicidal death of the deceased, the finding of guilt has erroneously been recorded. The learned Trial Judge has misread the evidence of PWs 6, 9 and 10 and the conclusion is not based on correct appreciation of evidence. Out of surmises and conjectures, the finding of guilt has been recorded. There being no evidence of whatsoever nature suggesting abetment on the part of the accused, leading to the committing of suicide by the deceased, it has to be held that the learned Trial Judge has committed error and illegality in passing the impugned Judgment of conviction and the consequential order of sentence. The prosecution has failed to bring on record, any material, which would satisfy the ingredients of S.306 15 read with S.107 of IPC. Consequently, the impugned Judgment being perverse, cannot be sustained.
In the result, the appeal is allowed and the Judgment dated 31.12.2009 /02.01.2010 passed in S.C. No.62/2007 by the Addl. Sessions Judge, FTC-XIV, Bengaluru City is set aside. The bail bonds are cancelled.
Sd/-
JUDGE sac*