Karnataka High Court
Shivarudra B @ Raju vs State Of Karnataka By Kanakapura Rural ... on 2 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 92, 2020 (2) AKR 259
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR
CRIMINAL APPEAL NO.49 OF 2018 (C)
BETWEEN:
SHIVARUDRA B @ RAJU,
S/O V. VEERABHADRAPPA,
AGED ABOUT 57 YEARS,
R/AT NO.17, ANANYA NILAYA,
1ST STAGE, 6TH CROSS,
KATHRIGUPPA MAIN ROAD,
BANASHANKARI 3RD STAGE,
BENGALURU.
(NOW IN J.C.) ...APPELLANT
(BY SRI A N RADHA KRISHNA, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY KANAKAPURA RURAL POLICE,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001. ...RESPONDENT
(BY SRI HONNAPPA, HCGP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 30.12.2017 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAMANAGARA TO SIT AT KANAKAPURA IN S.C.NO.13/2013 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 306 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant/accused challenging the judgment and sentence dated 30.12.2017 passed by the II Additional District & Sessions Judge, Ramanagara (to sit at Kanakapura), in S.C. No.13/2013, for the offence punishable under Section 306 of Indian Penal Code (hereinafter referred to as IPC for short), sentencing the accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs.50,000/- for the offence punishable under Section 306 of IPC and in the event of default of payment of fine amount, to undergo rigorous imprisonment for a period of one year. 3
02. The case of the prosecution in nutshell is that the deceased Honnaveeragowda @ Ravi and the accused are close relatives. The deceased was nephew of the accused. The deceased came to Bengaluru along with his wife and child. He was working as a security supervisor. There was a dispute between the mother of the deceased and the accused with regard to purchase of a site at Bengaluru, in addition to some other family disputes. The main dispute was regarding purchase of a site at Bengaluru, for which, the mother of the deceased is said to have contributed some amount, but the accused had purchased the said site in his name and sold the same without informing them. Therefore, a panchayath was held and the accused was directed to pay a sum of Rs.5,00,000/-, but the same was not paid by the accused. Thereafter, in the month of October 2010, the deceased, his mother along with two other brothers namely PW1 and PW11 had gone to the house of the accused and threatened him with dire consequences if the amount 4 agreed in the panchayath is not said. Hence, the accused had filed a complaint against the deceased, his mother and other family members, which was registered on 25.10.2010 at P.S. Crime No.428/2010 for the offences punishable under Sections 504 and 506 of IPC. Thereafter, on 23.11.2011, the deceased committed suicide by leaving a death note. On 24.11.2011, the villagers telephoned to the brother of the deceased namely Narayanagowda that Honnaveeragowda had hanged himself. Immediately, the wife of the deceased was informed. After the arrival of the wife of the deceased and other relatives to the spot, a complaint was filed by the brother-in-law of deceased namely Shivaswamy. On the basis of the said complaint, UDR was registered on 24.11.2011 at 11.00 a.m. Thereafter, at 7.30 p.m., Narayanagowda, brother of the deceased filed a complaint. In pursuance of the said complaint, a case was registered at P.S. Crime No.303/2011. On registering the case, the police have conducted investigation and submitted charge-sheet 5 against the accused for the offence punishable under Section 306 of IPC.
03. After committal of the case, the accused appeared and charges were framed. The prosecution has examined 15 witnesses as PW1 to PW15 and got marked the documents as per Exhibit-P1 to P14. The material object is marked as M.O.-1. The statement under Section 313 was recorded and the accused denied the incriminating circumstances. On appreciating the oral and documentary evidence placed on record, the trial Court has held the accused guilty of the offences punishable under Section 306 of IPC.
04. The trial Court by placing reliance on the evidence of PW1, PW7 and PW11, has convicted the accused holding that the prosecution has proved the guilt of the accused beyond reasonable doubt, mainly on two circumstances:
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i. Death note said to have been left by the deceased -
Honnaveeragowda; and ii. Dispute between the accused and the deceased in connection with a property and the criminal case registered by the accused against the deceased and his family members.
05. Heard the learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State.
06. The learned counsel for the appellant strenuously contends before this Court that the entire case revolves upon the interested testimonials of the family members of the deceased i.e., kith and kins. Exhibit-P3 - complaint does not disclose any incriminating evidence. Exhibit-P3 - complaint cannot be considered as FIR as the UDR was registered on the basis of the complaint filed by the brother-in-law of the deceased. Later, Exhibit-P3 - 7 complaint was filed by the brother of the deceased, by making false allegations. The contents of Exhibit-P3 - complaint do not make out any case against the accused. Absolutely, there is no evidence to prove the abatement and to prove mens rea. The evidence of the prosecution witnesses do not make out a case for instigation done by the accused or to compel the deceased to commit suicide. There is no connection between the criminal case registered against the deceased and his family members and the suicide committed by the deceased. Mere filing of the complaint or registering the case against the deceased cannot be a prime reason for committing suicide. Even the wife of the deceased has not spoken about any harassment caused by the appellant to the deceased. There are material contradictions between PW7 and PW11. The dying declaration and the surrounding circumstances do not make out grounds so as to draw any definite inference that accused person is responsible for the death of the 8 deceased. Thus, there are no valid reasons for convicting the accused.
07. In support of the said contentions, the learned counsel for the appellant has relied on following decisions:
a. 2010 (1) Supreme Court Cases (Cri) 896 in the case of Amalendu Pal alias Jhantu vs. State of West Bengal;
b. 2017 (1) SCC 439 in the case of Gurcharan Singh vs State of Punjab;
c. 1995 SCC (Cri) 1157 in the case of Mahendra Singh and another vs. State of M.P.;
d. (2010) 1 SCC (Cri) 917 in the case of Gangula Mohan Reddy vs State of Andhra Pradesh; and e. (2019) 2 SCC (Cri) 219 in the case of M.Arjunan vs. State rep. by its Inspector of Police.
08. Per contra, the learned High Court Government Pleader submitted that the dispute is in connection with purchase of a property by the accused by utilizing the 9 funds contributed by the mother of the deceased and the criminal case registered by the accused against the deceased and his family members. Same was the main cause for the committal of suicide by the deceased. PW1, PW7, PW10, PW11, PW12 and PW14 have supported the prosecution case and their evidence clearly goes to show that on account of harassment caused by the accused by filing a false case against them and the mental torture given, the deceased was compelled to commit suicide. The trial Court on appreciating the entire oral and documentary evidence on record, has rightly come to a conclusion that it is a fit case to record the judgment of conviction and sentence and accordingly recorded the same and sentenced the accused. There are no valid grounds to interfere with the well reasoned judgment and sentence passed by the trial Court.
09. In view of the submissions of the learned counsel for the appellant and the learned High Court 10 Government Pleader, the only point that arises for consideration is:
Whether the trial Court was justified in convicting the accused?
10. In a decision reported in 2010 (1) Supreme Court Cases (Cri) 896 in the case of Amalendu Pal alias Jhantu vs. State of West Bengal, the Apex Court relying on a decision reported in the case of Kishori Lal vs. State of M.P., wherein it is observed as under:
"6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word 'instigate' literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be 11 by instigation, conspiracy or intentionally aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence".
Further, relying on a decision reported in the case of Kishangiri Mangalgiri Goswami vs. State of Gujarat, wherein it is observed that the 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 12 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.
11. 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. 13
12. In the present case, PW1, PW7, PW10, PW11 and PW12 have supported the prosecution case, whereas PW4, PW5, PW6 and PW8 have not supported the prosecution case and they have been treated as hostile and cross-examined by the Public Prosecutor, but nothing much has been elicited.
13. In order to appreciate the aforesaid point formulated, it is just and necessary to bear in mind the evidence adduced by the prosecution. Hence, I would like to have cursory look at the evidence of the prosecution witnesses.
i. PW1 - Narayanagowda is the brother of the deceased. He has given the statement/complaint as per Exhibit-P3. He has stated in his examination-in-chief that his mother had given a sum of Rs.40,000/- to Rs.50,000/- to the accused for purchase of a Site at Bengaluru. But, the accused utilizing the said funds, had purchased a property in his name and he went on postponing conveying 14 the said property to the mother of the deceased on one or the other pretext and later sold the said site. Thereafter, when PW1 along with his mother and deceased enquired the accused about the same, a false complaint was registered against them. Therefore, his brother Honnaveeragowda has committed suicide. In the cross- examination, he has admitted that there was a settlement in the panchyath and his mother had agreed to receive a sum of Rs.5,00,000/- and thereafter, the accused had filed a case on 25.10.2010 which was registered at Channamanakere Achukatu Police Station, Bengaluru, in P.S. Crime No.428/2010, as per Exhibit-D1. He has denied the suggestion that on 24.11.2011 morning at 7.00 a.m., he had gone to the spot and concocted the death note and gave it to police to file a case against the accused.
ii. PW2 - Nagaraju is a hearsay witness who has stated that, he was present in the panchayath held for settlement of dispute between the accused and family 15 members of the deceased. But, he does not know the cause for the suicide committed by the deceased.
iii. PW7 - Vinodha is the wife of the deceased. She has stated in her examination-in-chief that on 23.11.2011 morning at 8.00 a.m., the deceased left home along with his brother - PW1 Narayanagowda. Later, PW1 Narayanagowda made a phone call and informed about the suicide committed by her husband. On receiving the said information, they went to the spot. Further, she has stated that she does not know as to why her husband has committed suicide, but, there was a death note in his pant pocket wherein it was stated that on account of the harassment given by Shivarudra in connection with a site dispute, the deceased has committed suicide and criminal case. In the cross-examination, she has denied the suggestion that Exhibit-P6 - death note was concocted as required for this case and handed over to the police which was placed in the pant pocket of the deceased. 16
iv. PW11 - Ramakrishnagowda is said to be the cousin brother of the deceased and he is a hearsay witness. He has stated that there was a panchayat held for settlement of the dispute regarding purchase of a Site by the accused by utilizing the funds said to have been given by the mother of the deceased and the accused had agreed to pay a sum of Rs.5,00,000/-. Further, he has not stated any reason for the suicide committed by the deceased. In the cross-examination, he has stated that no document is produced to show that there was a settlement directing the accused to pay a sum of Rs.5,00,000/-.
v. PW12 - Prakash is a Head Constable who was deputed for handing over the dead body after postmortem examination. In the cross-examination, he had admitted that he has not mentioned about recovery of the death note in P.F. 207/2011 and he has not put his signature on the death note.
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vi. PW13 - Ramegowda is the Assistant Sub- Inspector who had delivered the sealed cover to the FSL (hand writing expert).
vii. PW14 - Subramany is the employee of G4S Company, where the deceased was also working as a Security Supervisor and he has identified the handwriting of the deceased.
viii. PW15 - Chandrappa is the Police Sub-Inspector of Kanakapura Rural Police Station, who has registered the case as P.S. Crime No.303/2011 and sent the FIR to the Court.
14. It is pertinent to note that PW10 and PW15 are not subjected to cross-examination and the Investigating Officer is also not examined in this case.
15. As far as the suicide committed by the deceased Honnaveeragowda is concerned, there is no dispute. The main controversy is, whether the deceased committed 18 suicide on account of the mental torture caused by the accused. Generally, the 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. It also requires an active act or direct act which compel the deceased to commit suicide seeing no option and this act must have been intended to push the deceased to such an position that he committed suicide.
16. In the case on hand, even according the version of the prosecution witnesses, the accused had filed a criminal complaint on 23.10.2010 against the deceased, his mother and other family members which was registered as P.S. Crime No.428/2010 at Exhibit-D1. Thereafter, after a lapse of more than one year, the deceased has committed suicide on the reason that the accused had filed a complaint and compelled them to attend the Court and 19 has also committed fraud on them in connection with a Site purchased by him. But, there is no cogent evidence to show that there was instigation by the accused to compel the deceased to commit suicide.
17. In a decision reported in 2017 (1) SCC 439 in the case of Gurcharan Singh vs State of Punjab, the Hon'ble Apex Court has observed as under:
"To constitute abetment, intention and involvement of accused to aid or instigate commission of suicide is imperative - Any severance or absence of any of these constituents would militate against said indictment - Remoteness of culpable acts or omissions rooted in intention of accused to actualise the suicide would fall short of offence of abetment essential to attract S.306 IPC - Contiguity, continuity, culpability and complicity of indictable acts or omission are concomitant indices of abetment - S.306 IPC thus criminalises sustained incitement for suicide.20
18. The learned counsel for the appellant has relied on a decision reported in (2010) 1 SCC (Cri) 917 in the case of Gangula Mohan Reddy vs State of Andhra Pradesh, wherein the Hon'ble Apex Court adverting to several earlier decisions, has observed that there has to be clear mens rea to commit the offence, but in the instant case, there is no clinching evidence to prove the mens rea on the part of the accused for instigating the deceased to commit suicide.
19. The evidence placed on record do not make out a case that the accused meted out to the victim had in fact induced him to end the life by committing suicide. In the present case, the evidence goes to show that the deceased victim was hypersensitive to ordinary petulance, discord and differences between the accused and the mother of the deceased in connection with the purchase of a property by utilizing the funds given by the mother of the deceased.
20. In a judgment reported in 2019 (2) SCC (Cri) 219 in the case of M.Arjunan vs State represented by its 21 Inspector of Police, the Hon'ble Apex Court in para No.7 has observed as under:
"7. 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 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 IPC."
21. The contents of Exhibit-P6 - death note, do not disclose the definite information which compelled the deceased to commit suicide and there is no clear evidence whether the cruelty had been meted out to the victim. In Exhibit-P6 - death note, the victim has not stated about 22 the active or direct role played by the accused in compelling him to commit suicide, except the criminal case which is said to have been registered against them by the accused.
22. The evidence on record, in my considered opinion, does not demonstrate with unqualified clarity and conviction, any role of the appellant/accused. The materials on record do not even suggest even remotely any act of cruelty, oppression, harassment or inducement or instigation so as to persistently provoke or compel the deceased to resort to self-extinction being left with no other alternative. No such continuous and proximate conduct of the accused is forthcoming.
23. For the foregoing reasons, I am of the opinion that the ingredients of offence of Section 306 of IPC have remained unproved. Hence, I disagree with the findings given by the trial Court and thus the appellant deserves to be acquitted. Accordingly, I pass the following: 23
ORDER i. The appeal is allowed.
ii. Consequently, the judgment of conviction and sentence dated 30.12.2017 passed by the II Additional District & Sessions Judge, Ramanagara (to sit at Kanakapura), in S.C. No.13/2013, for the offence punishable under Section 306 of Indian Penal Code, is hereby set aside.
iii. The fine amount deposited shall be refunded to the appellant on proper identification.
Sd/-
JUDGE SJ