Karnataka High Court
The State Of Karnataka vs Dr Vidyadhara on 7 June, 2019
Author: K.Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL No.11 of 2011 c/w
CRIMINAL APPEAL No.960 of 2010
IN CRL.A.No.11 of 2011
BETWEEN:
THE STATE OF KARNATAKA BY
TOWN POLICE STATION,
CHITRADURGA.
... APPELLANT
(BY SRI K.P. YOGANNA, HCGP)
AND:
DR. VIDYADHARA,
S/O. H.R. RANGAIAH,
AGED ABOUT 45 YEARS,
PRIVATE MEDICAL PRACTITIONER,
RESIDENT OF TURUVANUR ROAD,
CHITRADURGA.
... RESPONDENT
(BY SRI R.B. DESHPANDE, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) & (3) CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN
APPEAL AGAINST THE JUDGEMENT DATED 18.08.2010 PASSED
BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHITRADURGA IN S.C.No.68/2007-ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 306 OF IPC.
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IN CRL.A.No.960 of 2010
BETWEEN:
DR. VIDYADHARA,
S/O H.R. RANGAIAH,
AGED ABOUT 45 YEARS,
OCC: PRIVATE MEDICAL PRACTITIONER,
RESIDENT OF TURUVANUR ROAD,
CHITRADURGA.
... APPELLANT
(BY SRI K.P. YOGANNA, HCGP)
AND
THE STATE OF KARNATAKA BY
TOWN POLICE,
CHITRADURGA.
... RESPONDENT
(BY SRI R.B. DESHPANDE, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 (2) CR.P.C. PRAYING TO SET ASIDE THE CONVICTION AND
SENTENCE DATED 18.08.2010 PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, CHITRADURGA, IN
S.C.No.68/2007 AND ACQUITTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A OF IPC
AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR ONE YEAR AND PAY A FINE OF
Rs.75,000/- IN DEFAULT OF PAYMENT OF FINE HE SHALL
UNDERGO SIMPLE IMPRISONMENT FOR A FURTHER PERIOD OF
THREE MONTHS-FOR THE OFFENCE PUNISHABLE UNDER
SECTION 498A OF IPC.
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THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 25.03.2019 AND COMING ON
FOR PRONOUNCEMENT, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
Since both these appeals arise out of the same judgment of conviction and sentence, they are disposed off together.
2. Criminal Appeal No.11/2011 is filed by the State against the judgment of acquittal of the accused for the offence under Section 306 of IPC vide judgment dated 18.08.2010 passed by the Principal District and Sessions Judge, Chitradurga, in S.C.No.68/2007 Criminal Appeal No.960/2010 is filed by the appellant-accused against the judgment of conviction and sentence dated 18.08.2010 passed by the Principal District and Sessions Judge, Chitradurga, in S.C.No.68/2007 whereby, the appellant herein was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.75,000/-, in default to undergo simple 4 imprisonment for a period of three months for the offence under Section 498A of IPC.
3. The ranks of the parties before the Trial Court is retained for the sake of convenience.
4. Heard the arguments of learned counsel appearing on both sides.
5. Before adverting to the arguments urged by learned counsel, it is worth to mention the case of the prosecution before the Trial Court as under;
The CoD Police, Bengaluru, filed charge-sheet against the accused for the offences under Sections 498A and 306 of IPC based upon the complaint filed by the father of the deceased namely, K.H. Ravindranath before the Chitradurga Town Police on 28.02.2007, as per Ex.P1, alleging that his eldest daughter R. Sona was given in marriage to the accused about 12 years prior to the incident. At that time, she was studying in I PUC and the 5 accused was a MBBS graduate. The complainant himself paid Rs.3.5 lakhs for pursuing his higher studies of D.C.H. Thereafter, he also spent Rs.1.5 lakhs towards establishing a clinic. Even at the time of marriage, the complainant gave the accused Rs.1.5 lakhs worth of gold ornaments and spent Rs.5 lakhs towards marriage expenses. After the marriage, his daughter and the accused were staying in his house, and subsequently his daughter gave birth to a son. Thereafter, a quarrel took place and the accused made a separate house and was not in talking terms with the family members and his daughter was not allowed to visit her parents' house. The complainant used to visit the house of his daughter regularly and one month prior to the incident, he visited the house of his daughter and went back after taking to her. He also provided some treatment to his daughter due to depression, but the Doctor informed that there is no problem as such. Thereafter, on 27.02.2007, he had visited his daughter's house and stayed in her house, spent some time with his daughter 6 and came back. On the next day morning by 7.00 a.m., he came to know that his daughter died and her body is floating in the water tank of the house of the accused. Immediately, he went to the house of the accused and saw the dead body of his daughter floating in the sub-tank. He suspected that the accused could have committed the murder of his daughter and thrown the dead body in the sub-tank and thereafter, sought to take proper legal action against the accused. After receipt of the complaint, the Chitradurga Town Police, registered the case against the accused in Cr.No.43/2007 for the offences under Sections 498A and 306 of IPC. The Police visited the spot, conducted inquest panchanama, spot panchanama and sent the dead body of the deceased to the Post-Mortem examination. During the investigation, PW.1 requested the Government to refer the matter to the CoD Police for investigation. Accordingly, CoD Police took-up the investigation and filed charge sheet against the accused for the aforesaid offences. After the committal of case to 7 the Court of Sessions, the Trial Court framed charges, the accused pleaded not guilty and he was put on trial.
The prosecution in order to prove its case, in all, examined 22 witnesses as PWs.1 to 22, got marked 19 documents as per Exs.P.1 to P.19 and the material objects as per MOs. 1 to 4. After closing of the prosecution evidence, the accused has been examined under Section 313 of Cr.P.C. He has given his written reply for not entering into any defence. However, during the cross- examination, he got marked Ex.D.1, a portion of the evidence of PW.2, who is the mother of the deceased. After hearing the arguments, learned Sessions Judge acquitted the accused for the offence under Section 306 of IPC. However, convicted the accused for the offence under Section 498A of IPC and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.75,000/- with default sentence. Being aggrieved by the judgment of conviction and sentence, the accused preferred Crl.A.No.960/2010 and against acquittal of the 8 accused for the offence under Section 306 of IPC, the State preferred Crl.A.No.11/2011.
6. Learned counsel for the accused contended that there is no complaint as such mentioned by PW.1 in his complaint regarding any harassment, demand of dowry etc. No further statement is recorded by the Investigating Officer. The evidence of PWs.1 and 2 are improved versions. PW.2, wife of PW.1, admits that the accused and the deceased were living cordially. There was no harassment. PW.3-Bhagyamma, the aunt of the deceased and PW.4-Manjunatha, the cousin have not supported the prosecution case and turned hostile. PW.5-Vishalamma, the maid servant, who worked in the house of the accused also not supported the case. PW.6-Sriranga, son of the accused and the deceased, who is a child witness, also turned hostile and not supported the case of the prosecution. PW.20-Dr. Ajith Bhide, Psychiatrist, who is said to have examined the deceased and gave treatment 9 for depression, was examined by the prosecution. He has given certificate as per Ex.P.16, but there is no counseling report produced and there is no basis for issuing such certificate and it was created by the Investigating Officer for the purpose of the case. Therefore, the conviction of accused by the Trial Court by relying on the evidence of PW.20 is not correct. There is no material produced to show any harassment by the accused. Neighbours have also not supported the case. There is material contradiction in the evidence of PW.1 and the complaint. Though the Trial Court rightly acquitted the accused for the offence under Section 306 of IPC, but wrongly convicted him for the offence under Section 498A of IPC. As per Ex.P.1, PW.2 gave a statement that the accused and the deceased led their life cordially. The deceased has not left any death note. Therefore, prayed for acquitting the accused by allowing the appeal.
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7. Per contra, learned High Court Government Pleader contended that as per the evidence of prosecution, witnesses namely, PWs.1 and 3 clearly corroborates that the accused borrowed Rs.2 lakhs through his wife from PW.3, the aunt of the deceased, which is not disputed. The accused forced the deceased to bring money and PW.1 paid huge amount to the accused for starting Pharmacy and later, due to the harassment, the said Pharmacy was closed. PW.4, the cousin brother, has turned hostile, but admitted in the cross-examination about the harassment by the accused. The evidence of PWs.1 and 3 cannot be thrown out as an interested one. The Trial Court though convicted the accused for the offence under Section 498A of IPC, but failed to appreciate the evidence and wrongly acquitted the accused under Section 306 of IPC. There is sufficient material placed on record to prove the guilt of the accused for both the offences. Hence, prayed for dismissal of the appeal of the accused and to allow the appeal filed by the State.
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8. Having heard the arguments of learned counsel for the accused as well as learned High Court Government Pleader, it is necessary to have a cursory look at the prosecution evidence adduced by the State before the Trial Court, which is as under;
PW.1-K.H. Ravindranath is the father of the deceased and the complainant. During the evidence, in support of his complaint made before the Police as per Ex.P.1 and in addition to that, he has stated that he has paid Rs.3 lakhs for getting a seat to the accused for D.C.H course and Rs.2 lakhs as fees and at the time of marriage, he has given Rs.1.5 lakhs worth of gold ornaments and spent Rs.4 to 5 lakhs towards marriage expenses. He has further stated that the accused demanded money for establishing a clinic. Therefore, he has paid Rs.75,000/- for establishing a clinic. After the marriage, the accused and deceased were staying in his house for two years. A child was born out of the wedlock. Though, he also 12 opened a Pharmacy in the name of his another daughter Sahana, the accused is said to have demanded percentage of the profit from the said medical shop. He also demanded to give back the medical shop to him. The accused is said to have harassed his daughter. In this regard, his daughter used to inform him about the harassment meted out to her. When there was a quarrel between them, the accused left his house along with his daughter. The accused used to abuse his daughter for not handing over the medical shop to him. He also stated that the accused was constructing a huge house and used to demand money for the purpose of construction through his daughter. The accused also raised loan from others and accused borrowed Rs.2 lakhs from his sister-in-law i.e. PW.3, through his daughter. The accused never used to come to the house within time during night hours. Whenever, the same was questioned, the accused used to harass his daughter. The accused is also having an illicit intimacy with a nurse in the clinic. The accused always 13 used to tell the deceased that she should go and die by falling into Marikanive dam as she was very fat. The accused also used to scold her stating that she looks like a donkey and looking ugly. The same was informed to him by his daughter. He has also consulted a Psychiatrist Doctor at Bengaluru and had counseling and a report also issued that his daughter went to depression due to harassment. His daughter used to consume sleeping tablets due to harassment by the accused. He further says that a day prior to the death of his daughter, he went and met the deceased in her house. At that time, the accused telephoned to the maid servant and informed that he will come to the house late in the night, but he did not even informed his daughter, due to which, his daughter suffered a depression and on the very next day, he came to know that the dead body of his daughter was found floating in the sub-tank. He has also identified Ex.P.1 as the complaint. A lengthy cross-examination has been done by the learned counsel for the accused. However, the 14 evidence of this witness will be discussed in the later part of the judgment after discussing the evidence of other witnesses.
PW.2-Lakshminidevi, wife of PW.1 and mother of the deceased, has also spoken about the demand of medical shop by the accused and also demand of percentage in the profit from the medical shop by the accused, due to which, they closed down the medical shop. Thereafter, the accused went and stayed in a separate house and used to demand money for the purpose of construction of house and her sister paid money through her daughter. She has also spoken about the death of the deceased and stated that the accused has caused the death of her daughter. The evidence of this witness will also be discussed a little later.
PW.3-Bhagyamma, is the aunt of the deceased and younger sister of PW.2. Though, she has stated that she has paid Rs.2 lakhs to the accused through the deceased for the purpose of construction of the house by the 15 accused, but denied the harassment made by the accused to the deceased. She has turned hostile. In the cross- examination, nothing has been elicited by the learned public prosecutor. Therefore, her evidence is acceptable only in respect of paying Rs.2 lakhs through the deceased to the accused for the construction of the house.
Pw.4-Manjunatha, is the cousin brother of the deceased. He has deposed that the deceased was suffering from mental depression. He also speaks about the treatment taken by the deceased with the Psychiatrist, but he has stated that he do not know as to what was the cause for the death of the deceased. This witness also turned hostile. Further, in the cross-examination, he has also admitted that he has given statement to the Police that the accused used to harass the deceased. In the cross-examination, he has admitted that he never visited the house of the accused during the life time of the deceased. Even he has not visited the house of PW.1 prior to the incident. As per the evidence of this witness, he has 16 not directly heard from the deceased anything about the harassment made by the accused.
PW.5-Vishalamma, is the maid-servant who saw the deceased in the morning at 6.15 a.m., but she has turned hostile regarding any harassment or quarrel between the accused and the deceased. Nothing has been elicited from her by the prosecution in respect of harassment. Therefore, the evidence of this witness does not support the case of the prosecution.
PW.6-Sriranga, is the son of the deceased and the accused aged about 12 years. He has stated that on the said date, he went to tuition in the morning. His mother, the deceased, sent him to tuition and when he came back at 9.00 a.m., he found his mother dead. Many relatives and his father were present in the house. Therefore, the evidence of this witness is not useful to the case of the prosecution.
PW.7-N.Rama Nagaraj, PW.8-Maruthi and PW.9-G. Basavarajappa are all inquest panch witnesses. Both 17 PWs.7 and 8 have given evidence about the dead body floating in the sub-tank and they have witnessed the same. There is no cross-examination of these two witnesses, since the death of the deceased by drowning in the sub-tank in the house of the accused was not in dispute. Though PW.9 also turned hostile in respect of inquest panchanama and spot panchanama Ex.P.2, as already stated above, the death of the deceased was due to drowning in the sub-tank is not in dispute. Therefore, there is no consequence in the evidence of these three witnesses.
Pw.10- Harsha and PW.11-Ravishankar are the panch witnesses to the cloth of the deceased seized under Ex.P.10. He has also turned hostile to the seizure of clothes of the deceased, is not in dispute. There is no consequence in the evidence of PW.10 and PW.11. Both of them have turned hostile. The admitted facts need not be proved.
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PW.12-Shivamurthy, is the cousin of the deceased. He has also turned hostile and not supported the case of the prosecution. Therefore, his evidence is not useful.
PW.13-Dr.K.G. Sathyanarayana, is the Radiologist, who conducted Post Mortem examination on the dead body of the deceased. As per his evidence, there is no external injury on the dead body of the deceased. In his opinion, the death has occurred due to Asphyxia as a result of drowning. He has collected the viscera of the deceased and sent to Forensic Science Laboratory, Davanagere and after receipt of FSL report, he gave Post Mortem Report as per Ex.P.11 and identified the FSL Report as per Ex.P.12. Opining that the death of the deceased was due to drowning in the water in the sub-tank of the house of the accused is not disputed. Therefore, the death of the deceased is suicide due to drowning in the sub-tank is not in dispute.
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PW.14-Mahanthesh, Manager of the Town Panchayat, Chitradurga, issued extract of the house of the accused as per Ex.P.14. The same is not in dispute.
PW.15-Prakash Kumar, is the Pathology Professor, working in (JJM Medical College) who examined the organs of the deceased and gave report as per Ex.P.13 and as per his evidence drowning was antemortem in nature. There is no dispute that PW.1 suspected that his daughter might have been killed and thrown in the water-tank in fact, as per the medical evidence and subsequent investigation, it is revealed that the deceased has committed suicide and died due to asphyxia.
PW.16-Raghavendra, is the photographer, who took the photograph as per Ex.P.15, which is also not in dispute. Ex.P.15 shows that the deceased was found floating in the water-tank and, thereafter, it was lifted from the water and photograph was taken.
PW.17-Shivanna, is the spot panch witness. He has given evidence that he saw the dead body in the house of 20 the accused and the Police conducted the panchanama. As already stated, the death in the house of the accused was not in dispute.
PW.18-B.N. Kadaramandalagi, is the Assistant Director, FSL. He gave opinion after examining that no poisonous substances were found in the internal organs of the deceased. The evidence of this witness has also no consequence, as death by drowning is not in dispute.
PW.19-Malleshi Doddamani, is one of the Investigating Officers who partly investigated the case, recorded the statement of PWs.3 and 4.
PW.20-Dr. Ajith Bhide, a Psychiatrist, is said to have examined the deceased prior to the death and he has given opinion as per Ex.P.16 that the deceased was suffering from mental depression due to harassment. The evidence of this witness will be discussed a little later along with the evidence of PWs.1 and 2.
PW.21-Chandrashekar, is the Police Inspector, who has received the complaint from PW.1, registered the FIR, 21 conducted spot panchanama, inquest panchanama, took the photographs and conducted his part of the investigation.
9. By looking to the entire evidence of the prosecution witnesses, it is not in dispute that the marriage of the accused was solemnized with deceased Sonu, the daughter of PW.1 about 12 years prior to the date of her death. It is also not in dispute that at that time, the accused has already completed MBBS course and he was known to PW.1 prior to the marriage and at the time of marriage, the deceased has completed PUC. PW.1 also stated in his evidence that he has helped the accused by paying the fees for his further course i.e. D.C.H done by the accused. The same was not seriously disputed by the accused. It is also not in dispute that the accused and deceased were staying with PW.1 in the house of PW.1 for about two years after the marriage and thereafter, the accused and the deceased were staying separately. Out of their 22 wedlock, PW.6-Sriranga, a male child was born. It is also not disputed on that 28.02.2007, the deceased Sonu committed suicide and her body was found in the sub-tank of the house of the accused and it was first witnessed by PW.5-Vishalamma, the maid servant. The investigation and the Post Mortem report, Pathology report and Biopsy report also revealed that the deceased died due to Asphyxia, as result of drowning and there was no injury on the dead body.
10. The main allegation of PW.1 as against the accused is that, though the accused completed MBBS course and D.C.H., he helped the accused for establishing a clinic by spending Rs.75,000/-. Thereafter, PW.1 established a medical shop in the name of "Sahana Medical Store" and the accused was demanding percentage from the sale proceeds from the medical shop and due to which, there was a quarrel. The accused vacated the house of PW.1 and stayed away. Thereafter, the accused purchased a 23 site and he started constructing a house by availing loan from others. He also demanded some amount from the deceased. Accordingly, PW.3, aunt of the deceased, gave Rs.2 lakhs to the accused. It is the further allegation of PW.1 that the accused was always quarrelling with his daughter and he was not coming to the house in time during night. Whenever his daughter questioned the accused, the accused used to quarrel and used to tell that she should go and die by jumping into Marikanive dam. The accused also used to scold her saying that she is like a donkey, looking ugly and also fatty. Due to which, the deceased went into depression. He also took his daughter to a Psychiatrist at Bengaluru where the report has been given stating that the depression is due to harassment in the house.
11. PW.1 further says that due to continuous harassment by the accused, his daughter went into depression and committed suicide. In the cross-examination, he has 24 admitted that he has not stated in his complaint Ex.P.1 that the accused told the deceased to go and die by jumping into Marikanive dam and used to scold her saying she is fatty, looking like a donkey and looks ugly. For that, PW.1 admitted that he has not informed the Police as he was in tension due to the death of his daughter. In the cross-examination he has clearly admitted that he has not mentioned in his complaint regarding harassment made by the accused, demanding money for construction through his sister-in-law and also about the accused scolding the deceased as looking fat, donkey and ugly and that she should go and die.
12. PW.19-Mallesh Doddamani, has also admitted that PW.1 has not stated before him regarding harassment suffered by the deceased in the hands of the accused. PW.1 also further admitted that the accused himself helped the deceased to take up higher studies and paid the educational expenditure of the deceased and thereafter, 25 the accused opened a medical shop in the name of the deceased and further admits that the accused constructed huge house by borrowing loan. Thereafter, the accused was working in many medical colleges as Professor and as visiting Professor and as Consultant in many private hospitals and he was not able to come to the house in time due to various assignments with the hospitals. PW.1 clearly admitted that the accused was working in the private hospital in the night hours and the accused was mainly working in the Modi Hospital and used to spend time in the night hours in the same hospital and he has not lodged any complaint against the accused regarding any harassment. The admission made by PW.1 in the cross- examination clearly goes to show that on the previous occasion PW.1 suspected that the accused might have caused the death of the deceased and thrown the dead body in the tank as the mouth of the tank was very small and it is not possible to fall down due to skidding or incidentally falling into the water. Though the accused 26 stated in his 313 statement that the deceased might have accidentally slipped into the tank but the investigation reveals that the deceased committed suicide by jumping into the water. Admittedly, on perusal of the evidence of PW.1, the entire evidence is an important one and nothing has been stated by him in the complaint against any harassment said to have been meted by the accused. Admittedly, the accused was a busiest doctor having his nursing home, apart from that, he was visiting various medical colleges as Lecturer apart from that, he used to work in private hospitals. Since he has started to construct a big house by borrowing loan from the Bank, in order to discharge the loan and for constructing a big house, he has to work day and night for achieving his goal. PW.1 had also not lodged any complaint against the accused even prior to that of quarrel with the deceased that the accused just two years after the marriage shifted his house from home from the house of PW.1. Except producing the fee receipts of the year 1995 i.e. at the time 27 of marriage, the accused was entering into higher studies and it is not the case of the prosecution that the accused demanded any money from PW.1 for higher studies, but PW.1 might have helped the accused who is the son-in-law for getting higher education. The amount spent by PW.1 for the marriage was also not in dispute. Thereafter, there is no evidence to show that the accused continuously ill-treated the deceased by picking-up quarrel, until the accused started constructing house and though PW.3 gave Rs.2.00 lakhs for helping the accused to construct the house through the deceased, that itself cannot be considered as an harassment made by the accused on the deceased. For the purpose of constructing a house, borrowing loan from other institutions even from the relatives of the wife, cannot be considered as an harassment or demand of dowry by the accused in order to attract the provisions of Section 498A of IPC. 28
13. The accused is said to have uttering words to the daughter to go and die by falling into a dam, this cannot be considered as abetment to attract Section 107 of IPC to show that the accused abetted the wife to commit suicide. Even otherwise, there is no corroborative evidence from PW.2, who is none other than the wife of PW.1 and her evidence goes to show that the accused demanded some commission from the medical shop, but there is no evidence in this regard and that too it is an improvement made by the witness. The witness also stated that there were small misunderstandings in the family between the accused and the deceased. Though it is stated that the accused was the cause for committing of suicide by the deceased, but there is no specific allegation made against the accused in order to show that the accused abetted the deceased to commit suicide by jumping into the tank.
14. On the other hand, it is the case of the prosecution that the deceased was taking treatment for depression. 29 Though PW.20 a psychiatrist, examined by the prosecution, has given evidence that he has examined the deceased on 13.02.2007 and that during the counseling, he came to know that the deceased was suffering from depression due to harassment and this witness stated in the cross-examination, that the counseling report is available in the hospital, but he has not produced such records to the Police and this witness also admits the cause of anxiety and depression because of the busy schedule to her partner. He further admits that only, he has consulted the deceased and he has also instructed the deceased and thereafter, he has not seen the deceased. Even on perusal of the evidence of this witness, there is no clear evidence about what was the harassment meted out by the accused to the deceased and the actual counseling report was not produced before the Court even though it was available in the hospital where PW.20 has worked. Even the Investigating officer working in the CoD Department, who took the further investigation, had filed 30 charge sheet and not chosen to seize the document or statement of the deceased which was made before PW.20. If at all the said document was seized by the Police it could have revealed as to what was the actual harassment meted by the deceased by the accused in order to go for depression. Failure to seize the consultation report of the deceased made by the Psychiatrist, in the absence of a specific allegation against the accused in the complaint and the evidence of the witness that prior to the death of the deceased, the accused aided/abetted the accused to commit suicide. Therefore, the mere allegation and even by way of improvement in the evidence that the accused told the deceased to go and die by jumping into the dam as she was ugly and looked like donkey cannot be considered as the accused abetted the deceased to commit suicide. In this regard, this Court relied upon the judgment in the case of SANJU ALIAS SANJAY SINGH SENGAR Vs. STATE OF M.P. reported in 2002 AIR SC 1998.
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"Penal code (45 of 1860), S.306, S.107 - Abetment of suicide - Proof - Quarrel between accused and deceased - Accused telling deceased 'to go and die' - That itself would not constitute ingredient of 'instigation' - Presence of means rea is necessary concomitant of instigation - Fact that deceased committed suicide after two days of quarrel during which said words were uttered by accused - Would show that suicide was not direct result of quarrel - Suicide note left by deceased showing that he was in great stress and depression - Statement by his wife that he was frustrated man and was in habit of drinking - Held, charge-sheet framed under S.306 against accused was liable to be quashed as ingredients of abetment were totally absent. Words and Phrases - Word 'instigate'-Meaning of."
Section 107 of IPC is as follows:
"107. Abetment of a thing.-- A person abets in doing of a thing, who--
Firstly.-- Instigates any person to do
that thing; or
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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, in doing of that thing.
15. On perusal of the entire evidence on record, there is no nexus between the commission of suicide and the words uttered by the accused. The evidence on record, clearly reveals that the accused was constructing a house by borrowing loan from bank etc and he was working round the clock and working in the private hospital and in his clinic, apart from visiting as Professor to the medical hospital. He must not have spent some time with the family members in the house, but the allegation goes to show that it was just after two years after the marriage PW.1 opened a clinic and thereafter, the accused was 33 encouraged the deceased to study B.Pharmacy and thereafter, he opened a medical shop in the name of his wife and he was busy in the Profession. If at all there was any quarrel between the accused and the deceased, PW.6- son might have witnessed and given evidence against his father. Apart from that, PW.5 the house maid servant has not supported the prosecution case. Even she might have stated, if there was frequent quarrel between the accused and the deceased prior to the incident.
16. Even as per the evidence of PW.1, on a day prior to the incident, when was in the house of his daughter, the accused informed from the hospital to the house maid servant that he is coming late to the house. Merely because the accused did not inform the deceased, that itself is not the ground to show that the accused has harassed the deceased. Apart from that, there is no independent evidence that the accused harassed or assaulted the deceased. Even the statement of the child is 34 that the deceased herself sent the child to the tuition in the morning at 6.00 O clock and subsequently, the deceased was found dead by PW.5. If at all there was any quarrel between them or any assault, there must be some injury on the body of the deceased, but no such injury was found. Therefore, in my opinion, absolutely, there is no evidence to show that the accused harassed the deceased prior to the incident which attracted her to commit suicide. On the other hand the evidence of PWs.1 and 2 reveals that the deceased was in depression. Though it was stated that due to harassment, but there is no strong evidence to prove that the deceased went into depression due to harassment in the hands of the accused.
17. It is well settled that when two views are possible, the view which is favourable to the accused shall be acceptable. Though the Trial Court accepted the contention of the accused and rightly held that there is no abetment made by the accused to the deceased to commit 35 the suicide, but wrongly held that the accused has harassed the deceased mentally which made the deceased to commit suicide and convicted him under Section 498A of IPC. The Trial Court cannot appreciate the evidence of the prosecution partly only to prove the case of 498A and partly disbelieve the evidence for the offence under Section 306 of IPC. The entire evidence shall be appreciated together and there must be some incident soon prior to the commission of suicide by the deceased, but no such incident is brought on record by the prosecution except vague allegations. It has occurred long back after two years of the marriage, but no specific incident has occurred soon before the death of the deceased. Hence, I hold that the prosecution has failed to prove the charges leveled against the accused beyond all reasonable doubt. Therefore the benefit of doubt is extended to the accused. Accordingly, I hold that the accused is entitled for the acquittal of the charges levelled against him under Sections 498A of IPC.
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18. Hence, I pass the following:
The appeal filed by the accused-appellant in Crl.A.No.960/11 is allowed. The conviction of the accused for the offence under Section 498A is hereby set aside.
The appellant is acquitted and his bail bonds, if any, stand cancelled. Fine amount is ordered to be refunded to the accused.
Consequently, the appeal filed by the State in Crl.A.No.11/2011 as against the acquittal of the accused under Section 306 of IPC is hereby dismissed.
Sd/-
JUDGE mv