Karnataka High Court
Smt. Geeta Ramesh Handevale @ Gouli vs The State Of Karnataka on 17 February, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17th DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION No.101813/2021
BETWEEN
1. SMT. GEETA RAMESH HANDEVALE @ GOULI,
AGE: 26 YEARS, OCC: HOUSEWIFE,
R/O: GOULIGALLI, MALAMADDI,
TQ AND DIST: DHARWAD-580007.
2. Smt. JYOTI @ PAPI
W/O. GOPINATH DALEKHAN @ GOULI,
AGE: 25 YEARS, OCC:HOUSEWIFE,
R/O: GOULIGALLI, MALAMADDI,
TQ AND DIST: DHARWAD-580007.
...PETITIONERS
(BY SRI K. L. PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
THROUGH VIDYAGIRI POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OFKARNATAKA,DHARAWAD BENCH,
DHARWAD-580011.
2. IMAM PEERU LACHEVALE
AGE. 60 YEARS, OCC.BUSINESS,
R/O.GOULIGALLI, MALAMADDI
TQ AND DIST. DHARWAD-580007.
...RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR R1 AND
SRI ANWAR BASHA ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING
TO QUASH THE ENTIRE CHARGE SHEET FILED AGAINST THE PRESENT
PETITIONERS/ACCUSED NO.3 AND 4 IN VIDYAGIRI POLICE STATION
CRIME NO.55/2020 WHICH IS REGISTERED AS SC NO.80/2021 ON THE
FILE OF IV ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, FOR
OFFENCES PUNISHABLE U/S 305 R/W SECTION 34 OF IPC.
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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petitioners calls in question the criminal proceedings in S.C.No.80/2021 pending on the file of IV Additional District and Sessions Judge, Dharwad, registered for offences punishable under Sections 305 R/w. Section 34 of IPC.
2. Heard Sri. K.L.Patil, learned counsel appearing for the petitioners, Sri Ramesh Chigari, learned High Court Government Pleader appearing for respondent No.1.
3. Filtering out unnecessary details, facts in brief are as follows:
The complaint is registered on 3/8/2020 by the second respondent who is the father of the deceased. It is the case of the complainant that his son had gone near the house of the petitioners who are accused Nos.1 and 2 for the purpose of fetching water to setup fire to take a 3 shower. It is alleged that the petitioner has verbally abused the son of the complainant in filthy language, which provoked the son of the complainant to commit suicide by hanging himself. On the said incident, the complainant-
father of the deceased registers a complaint in crime No. 55/2020 for the offences punishable under section 305 read with section 34 of IPC. The police after investigation have filed the charge sheet. It is at this juncture, the petitioners approached this court in the subject petition.
4. Sri.K.L.Patil, learned counsel for the petitioners would submit that Section 305 of IPC would get attract if there is such provocation upon the deceased to commit suicide. The incident that has happened as narrated in the complaint cannot be such as to commit abetment to suicide.
5. On the other hand, Sri. Ramesh Chigari, learned HCGP refute the submission and contended that it is the matter of trial and the petitioners have to come out clean 4 and this court at this juncture should not interfere with the proceedings.
6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record.
7. aforenarrated brief facts leading to the suicide of the deceased are not in dispute. It is germane to notice Section 305 of IPC.
305. Abetment of suicide of child or insane person_ If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.
Section 305 deals with abetment to suicide of a person below 18 year, the ingredients as found in section 107 of IPC is imperative to be proved for an offence under Section 5 305 of IPC to be driven home. A perusal at the complaint registered by the second respondent or summary of the charge sheet filed pursuant to the investigation would indicate the only circumstance that is narrated in the complaint that the accused petitioners have chided the boy to an extent that he committed suicide. This cannot be a circumstance that would come within the ambit of Section 107 of IPC which deals abetment to be proved for an offence under Section 305 of IPC. The issue with regard to the abetment and abetment to suicide need not detain this court for long as the issue stands covered by the judgments of the Apex court delineating the very issue of abetment to suicide or what are necessary ingredients to be proved for such abetment. This court in criminal petition 6390/2017 disposed of on 14/9/2021 has held as follows:
9. 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:-6
"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 IPC is what is described in Section 107 of the IPC. Section 107 of the IPC reads as follows:
"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 IPC whoever abets a particular thing as defined under Section 107 of IPC would become punishable under Section 306 of the IPC. Section 107 of IPC mandates that a person abets doing of a thing and instigates any person to do so, engages with one or more 7 other person in any conspiracy for doing such a thing, intentionally aids by any act or illegal omission of doing of that thing. Therefore, for an offence punishable under Section 306 of IPC for abetment to suicide, the ingredients under Section 107 of IPC are to be present in a given case.
10. The learned counsel for the petitioner places reliance on a judgment of the learned Single Judge of this Court in the case of M.C.CHAITHRA AND OTHERS VS. STATE OF KARNATAKA reported in ILR 2008 KAR 2710. This judgment is of the year 2008. The clock of the flow of law did not freeze in the year 2008, as much water has flown thereafter in interpretation of Sections 306 and 107 of the IPC by plethora of judgments of the Apex Court. I therefore, deem it appropriate to, at the outset, notice such flow of law and then consider the facts obtaining in the case at hand on the touch stone of such interpretation by the Apex Court. The Apex Court interpreting Section 306 of IPC, has in several judgments, held the 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 PUNJAB1has held as follows:-
"20. Section 306 of the Code prescribes the punishment for abetment of suicide and is designed thus:1
(2017) 1 SCC 433 8 "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 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.
(Emphasis supplied) 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.
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11. 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 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 2 (2001) 9 SCC 618 10 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."
(Emphasis supplied)
12. The Apex Court in the case of AMALENDU PAL V. STATE OF WEST BENGAL3, has held as follows::
"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 3 (2010) 1 SCC 707 11 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.
14. The expression "abetment" has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause Thirdly of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC."
(Emphasis supplied) Again, the Apex Court in the case of S.S. CHHEENA V. VIJAY KUMAR MAHAJAN4, has held as follows: 4
(2010) 12 SCC 190 12 "24. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court 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 the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
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.
26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to- day life. Human sensitivity of each individual differs 13 from the other. Different people behave differently in the same situation.
27. When we carefully scrutinise and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under Section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under Section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside."
(Emphasis supplied) The Apex Court in a recent judgment in the case of GURUCHARAN SINGH v. STATE OF PUNJAB5 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 *** 5 (2020) 10 SCC 200 14 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 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.
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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."
(Emphasis
supplied)
Therefore, the case at hand will have to be considered on the bedrock of the IPC and judgments of the Apex Court (supra).
13. Since the entire issue springs from the complaint registered against the petitioner and others, it is germane to notice the complaint, which reads as follows:
"«µÀAiÀÄ: £À£Àß UÀAqÀ£ÁzÀ ªÀĺÁ°AUÀAiÀÄå£ÀªgÀ ÀÄ «µÀ PÀÄrzÀÄ DvÀäºvÀ Éå ªÀiÁrPÉÆArgÀĪÀ §UÉÎ zÀÆgÀÄ.16
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(Emphasis added) In terms of the complaint what can be gathered is, the petitioner and the deceased were holding lands abutting to each other. The allegation in the complaint is that the petitioner and his family members have harassed the deceased by filing several cases against him concerning the dispute with regard to the land. The allegation in the complaint is that when the complainant and her husband went to the house of one Mahesh, it is there the deceased confided into Mahesh that he had raised loan and had purchased the property in B.C.Kaval and today he is not getting the said property as the petitioner has filed a complaint against him. It is his assumption that till he dies the property would not come in his possession. Because of that reason, the deceased consumed poison. This is what is narrated by the complainant in the complaint. The complaint further narrates that Mahesh consoled the deceased by telling him that this trivial issue should not be a ground for him to commit suicide and on that day itself the complainant alleges that her husband unable to bear the insult, committed suicide. The entire complaint does not narrate any abetment by the petitioner being present at that point in time or leaving 18 the deceased with no other option, but to commit suicide on account of a guilty mind on the part of the petitioner.
14. With regard to filing of cases against the deceased by the petitioner and his family members, an endorsement is appended to the petition papers with regard to the information furnished by the jurisdictional police that up to 11.10.2012 there were no criminal cases that are filed against the deceased by the petitioner or any other family members of the petitioner. The issuance of this endorsement and its veracity is not in dispute. The case that the family of the petitioner had filed against the deceased was O.S.No.131 of 2000 which was a suit filed for declaration and injunction against the deceased. The suit was decreed on 18-06-2008. This is the only litigation between the parties apart from a criminal complaint that was registered on 10-10-2012, a day before the deceased committed suicide. With regard to the original suit that was filed in the year 2000 and the civil court decreeing the said suit on 18-06-2008, the civil litigation has become final.
15. The complaint that was registered against the petitioner was with regard to constant harassment of the petitioner to the deceased. The complaint was registered on 10-10-2012 and therefore, it cannot even casually link the abetment to suicide to the registration of the complaint or the 19 ingredients of such abetment. Mere filing of a case or registration of a complaint or even harassment cannot mean that the petitioner had indulged in abetment to suicide of the deceased.
16. As delineated by the Apex Court in the judgments extracted (supra), abetment under Section 107 of IPC has few ingredients to be proved. If Section 306 of IPC, has to be proved, if the judgment of the Apex court and the facts obtaining in the case at hand, as stated above are considered, it would unmistakably reveal that there cannot be any link to the death of the deceased with the petitioner, as the state of mind to commit a particular crime is a sine qua non to establish an offence under Section 107 IPC and to prove mens rea, there has to be something on record, to establish or show that the petitioner had a guilty mind and in furtherance of that state of mind, abetted suicide to the deceased. Neither the narration in the complaint nor the material in the charge sheet link the offence under Section 306 IPC with the petitioner. The postmortem report indicates that the deceased died of consumption of excessive alcohol coupled with poison. Neither consumption of excessive alcohol or consumption of poison can link to the cases filed against the deceased by the petitioner. As stated hereinabove, mere harassment by way of filing of cases 20 cannot even remotely link the petitioner for the offence punishable under Section 306 of the IPC. Except the self- serving statement in the complaint, by the complainant, there is nothing on record to show that the petitioner even remotely instigated abetment of the deceased to commit suicide. In my considered view, there is absolutely no basis to proceed against the petitioner for the alleged offence of Section 306 of the IPC and the provisions of the Atrocities Act. It would be travesty of justice to compel the petitioner to undergo trial particularly when there is no material against him.
17. Therefore, this is a case where this Court should exercise its jurisdiction under Section 482 of the Criminal Procedure Code, as held by the Apex Court in the case of STATE OF HARYANA v. BAJANLAL6 as also, the judgment in the case of PEPSI FOODS LIMITED v. SPECIAL JUDICIAL MAGISTRATE7 wherein the Apex Court holds as follows:-
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course ............"
Later, the Apex Court in the case of RAJIV THAPAR V. MADAN LAL KAPOOR8, has held as follows: 6
1992 Supp.(1) SCC 335 7 (1998) 5 SCC 749 8 (2013)3 SCC 330 21 "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 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 22 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."
Therefore, in the light of the judgment of the Apex Court in the case of BAJANLAL which has been followed in plethora of judgments in the aftermath of BAJANLAL and the judgment in the case of RAJIV THAPAR, the petition deserves to succeed.
18. The other allegation is concerning Section 3 of the Atrocities Act. In view of the aforesaid reasons, the allegation under the Atrocities Act also cannot be pressed into service, merely because the deceased who died belongs to either Scheduled Caste or Scheduled Tribe, as there is nothing beyond what is alleged and considered hereinabove that is alleged even in the complaint.
19. For the aforesaid reasons, I pass the following:
ORDER
(i) This Criminal Petition is allowed.
(ii) The order dated 15th March 2017 passed in
Special Case No.266 of 2012 by the III
Additional Sessions Judge at Tumkur is
quashed.
23
(iii) The petitioner shall be discharged from the proceedings in Special Case No.266 of 2012 forthwith.
(Emphasis supplied)
8. This court follows plethora of judgments of the Apex court on the issue, the Apex court has again reiterated the principles laid down with regard to abetment to suicide in the case of Kanchan Sharma vs The State Of Uttar Pradesh reported in 2021 SCC online SC 737.
9. In the light of the judgments of the Apex court as followed by this Court (supra) the said petition deserves to be succeed failing which it would be an abuse of process of the law and would result in miscarriage of justice.
10. For the aforesaid reasons the following:
ORDER
i) The criminal petition is allowed.
ii) The proceedings initiated against the petitioners in S.C.No.80/2021 pending before the IV 24 Additional District and Sessions Judge, Dharwad stands quashed.
SD JUDGE Vb/-