Karnataka High Court
Navanath S/O Ramesh Machkuri vs The State Through Bidar Rural Ps on 5 September, 2023
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NC: 2023:KHC-K:7141
CRL.A No. 200103 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.200103 OF 2017
BETWEEN:
NAVANATH
S/O. RAMESH MACHKURI
AGED ABOUT 27 YEARS
OCCUPATION: COOLIE
RESIDENT OF SULTANPUR VILLAGE
BIDAR - 585 401.
...APPELLANT
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
AND:
THE STATE
Digitally signed by
SHILPA R THROUGH BIDAR RURAL POLICE STATION
TENIHALLI
BIDAR
Location: HIGH
COURT OF REPRESENTED THROUGH PUBLIC PROSECUTER
KARNATAKA
HIGH COURT BENCH, KALABURAGI - 585 102.
...RESPONDENT
(BY SRI J. SHAHABUDDIN, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CR.P.C. PRAYING TO SET-ASIDE THE
JUDGMENT AND ORDER DATED 27.6.2017 PASSED BY THE
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CRL.A No. 200103 of 2017
ADDITIONAL DISTRICT & SESSIONS JUDGE AT BIDAR IN
S.C. NO.181/2014.
THIS CRIMINAL APPEAL IS COMING ON FOR
FURTHER DICTATION, THIS DAY, THE COURT MADE THE
FOLLOWING:
JUDGMENT
The appellant/accused No.1 has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') challenging the judgment of conviction dated 14.06.2017 and order on sentence dated 27.06.2017 passed by the learned Additional District and Sessions Judge, Bidar, (for short, 'trial Court') in Sessions Case No.181 of 2014 for the offences punishable under Sections 498A, 306 and 109 of the Indian Penal Code, 1860, (for short, 'IPC') wherein, the trial Court convicted accused No.1 and acquitted accused Nos.2 to 6 for the aforesaid offences.
2. For the sake of convenience, the parties herein are referred to as per their ranking before the trial Court. -3-
NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 The appellant is accused No.1 and respondent is complainant-State.
3. The brief facts of the prosecution case are that on 03.12.2013 at 5:00 p.m. at Sulthanpura-J Village, Bidar, the accused persons in furtherance of their common object, accused No.1 being the husband of Premlata (hereinafter referred to as 'deceased') during her lifetime subjected her to physical and mental torture at his house stating that she does not know household work and she is not a fair looking woman and thereby, accused Nos.2 to 6 also ill-treated and abetted the deceased, therefore, the deceased committed suicide by jumping into a well in the land of one Maruti Patil. Hence, P.W.1-Rukmini, mother of the deceased, lodged a complaint as per Ex.P.1 with the respondent-Police.
4. On the basis of the complaint, F.I.R. was registered, Investigating Officer took up the investigation, investigated the matter and filed charge sheet. Soon after receipt of charge sheet, the jurisdictional Magistrate took -4- NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 cognizance of the offences. Since the case required to be tried by the Court of Sessions, the matter was committed to the Court of Sessions. The trial Court framed charges for the offences under Sections 498A, 306 and 109 read with Section 149 of the IPC and the same was read over to accused Nos.1 to 6, they pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove its case, got examined in all 25 witnesses as PW.1 to PW.25, documents got marked as per Exs.P1 to P17 and marked five material objects as per M.O.1 to M.O.5.
6. After conclusion of the prosecution evidence, the statements of the accused persons were recorded as contemplated under Section 313 of Cr.P.C. The accused persons denied all the incriminating circumstance appeared in the prosecution evidence. The accused persons did not led any defence evidence. On the basis of aforesaid evidence, the trial Court framed the following points for consideration:
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i) Does the prosecution proves to the hilt that on 3-12-2013 at 17.00 hours situated at Sultanpur-J Village, accused persons in furtherance of their common object, accused No.1 being the husband of deceased Premlata during her marital life, subjected her to physical and mental torture at his house stating that she does not know household work and she is not a fair looking woman and accused No.2 to 6 also ill-treated the deceased and abetted the deceased to commit suicide of deceased Premlata and thereby committed the offence punishable under Section 498A?
ii) Does the prosecution proves to the hilt that on the above said date, time and place, because of ill-treatment given by A-
1 to A-6 the deceased Premlata being unable to bear such torture, deceased committed suicide by jumping into the well in the land of one Maruti Patil and thereby committed the offence punishable under Section 306 of IPC as alleged?
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 iii. What order?
7. The learned Sessions Judge based on oral and documentary evidence held that the prosecution has failed to prove the allegations made against accused Nos.2 to 6 with regard to harassment, both, physical and mental and abetment to commit suicide. Accordingly, acquitted accused Nos.2 to 6 for the offences punishable under Sections 498-A and 306 of IPC. However, convicted accused No.1 for the aforesaid offences. Thus, the trial Court sentenced accused No.1 to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- for the offence punishable under Section 498A of IPC and to undergo simple imprisonment for three years for the offence punishable under Section 306 of IPC and to pay a fine of Rs.5,000/- with default sentences.
8. Being aggrieved by the judgment of conviction and order on sentence, accused No.1 has preferred this appeal.
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9. Heard the learned counsel for accused No.1, the High Court Government Pleader for the respondent-State and perused the material available on record.
10. Learned counsel for accused No.1 has contended that the judgment and order of conviction passed by trial Court is not in accordance with law; the trial Court has convicted accused No.1 based on an uncorroborated testimony of prosecution witnesses; the prosecution evidence is full of omissions, contradictions and improvements; there are no eyewitness to the incident; the trial Court convicted accused No.1 based on evidence of PWs.1, 3 and 11, who are none other than mother, father and sister of deceased Premlata and their testimonies are not believable, as they are interested witnesses. It is further contended that all the mahazar witnesses and independent witnesses have turned hostile to the case of the prosecution, but the trial Court without looking into the evidence of the prosecution witnesses and their creditworthiness, wrongly convicted accused No.1. -8-
NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 In fact, there is no clear, cogent and corroborative evidence in the testimony of these witnesses. Hence, he prays to set aside the judgment of conviction and order on sentence passed by the trial Court.
11. Learned High Court Government Pleader has contended that the impugned judgment and order of sentence passed by the trial Court is in accordance with law, which is based on facts, probability of the case, evidence on record, and conduct of accused No.1, who has committed the offence punishable under Sections 498A and 306 of the IPC. It is further contended that the trial Court has assigned valid reasons and has rightly recorded the findings that accused No.1 has committed the offences. Hence, he prayed to dismiss the appeal.
12. Having heard the learned counsel for the parties and after bestowing my careful and anxious consideration to the rival contentions raised at the Bar, the following points would arise for consideration: -9-
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i) Whether accused No.1 has made out any grounds to interfere with the judgment of conviction dated 14.06.2017 and order on sentence dated 27.06.2017 passed by the learned Additional District and Sessions Judge, Bidar, in Sessions Case No.181 of 2014 for the offences punishable under Sections 498A and 306 of the IPC?
13. In order to re-appreciate the entire evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
a. P.W.1-Rukmini is the mother of the deceased. In her evidence, she has deposed that the deceased is her daughter, she was given in marriage with accused No.1 and after the marriage, their relationship was cordial for couple of months and thereafter, accused No.1 was harassing the deceased on account of he having illicit relationship with his sister-in-law (accused No.4). In the cross-examination, she has categorically admitted that she never visited the house of her daughter and accused No.1.
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 She never enquired her daughter and accused No.1 in respect of the alleged harassment given to her daughter, she never conducted panchayat in this regard and the fact of death of her daughter came to the knowledge only through villagers. She does not know the contents of the dying declarations, i.e. Exs.P.2 and P.3 (Dying declarations) and she never saw any chits near the dead body of the deceased.
b. P.W.2-Sunita is an inquest mahazar witness. In her evidence, she has deposed that the Police conducted inquest panchanama on the dead body of the deceased as per Ex.P.4. In the cross-examination, she has clearly admitted that she does not know the contents of the Ex.P.4-inquest panchanama and the Police have obtained her signature soon after completion of inquest panchanama and she is neighbour of P.W.1. She further admits that there is animosity between herself and the family of accused persons.
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 c. P.W.3 Ganapathi is the father of the deceased. He has deposed that soon after the marriage of accused No.1 with the deceased, their relationship was cordial for a period of six months, thereafter he started to harass her physically and mentally and came to know about the fact through P.W.1. He has further deposed that accused No.1 was having illicit relationship with accused No.4 and thus, he was harassing the deceased. In his cross-examination, he has categorically admitted that on the day of the alleged incident, he was in the house, but did not enquire the deceased and he never tried to know the contents of Exs.P.2 and P.3 and he also never enquired accused No.1 for having illicit relationship with accused No.4 and rest of the allegations have been denied.
d. P.W.4-Rajkumar is the uncle of the deceased. He has deposed that the accused persons used to harass the deceased and therefore, she committed suicide. In the cross-examination, he has clearly admitted that he never enquired the deceased about the alleged harassment
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 of the accused persons and he never visited the house of the accused. He has further admitted that it was love marriage between accused No.1 and the deceased and they were residing in the house of accused No.1 and he does not know how the deceased committed suicide.
e. P.W.5-Saiman, P.W.7-Hanumavva, P.W.9- Sharnappa and P.W.10-Parshuram are the neighbourers of the house of accused persons and they have turned hostile and have not supported the case of the prosecution.
f. P.W.6-Jagdevi is also one of the relatives of the accused persons. In her evidence, she has deposed that after the marriage of accused No.1 and the deceased, their relationship was cordial, but later, they picked up quarrel, they were abusing her and used to assault her, therefore she committed suicide by jumping into the well. In her cross-examination, she has categorically admitted that she never visited the house of accused No.1. Police have never enquired and recorded her statement. She does not know the reasons for committing suicide by the deceased.
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 g. P.W.8-Narsappa is the brother of P.W.1. He has deposed that he came to know about the incident through P.W.1. In his evidence, he has deposed that accused No.1 always quarrel with the deceased as she is not looking fair and nice, therefore, she committed suicide. In the cross- examination, he admits that the Police never enquired him and recorded his statement and he does not know the reasons for committing suicide by the deceased.
h. P.W.11-Priyanka is the sister of the deceased. In her evidence, she has deposed that the relationship of accused No.1 and the deceased was cordial for five months and thereafter, the accused started to harass her as she was not looking fair and she does not know to cook. Further, accused No.1 had illicit relationship with accused No.4 and therefore, the deceased wrote two chits, i.e. Exs.P.2 and P.3 and handed over to her. In her cross- examination, she has categorically admitted that she does not know the contents of Exs.P.2 and P.3, which was
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 handed over to her mother-P.W.1 and the Police never enquired her and recorded her statement.
i. P.W.12-Raju is the husband of the sister of the deceased. He has turned hostile to the case of the prosecution.
j. P.W.13-Maruthi is one of the relatives of P.W.1. He has also turned hostile to the case of the prosecution.
k. P.W.14-Suleman is a witness to inquest panchanama. In his evidence, he has stated that the Police conducted panchanama in his presence and he saw the dead body in the well. In his cross-examination, he has admitted that he does know about the contents of Ex.P.4-inquest panchanama.
l. P.W.15-Yeshappa, P.W.16-Shantkumar and P.W.17-Loka are witnesses to Ex.P.11-spot mahazar. They have turned hostile and have not supported the case of the prosecution.
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 m. P.W.18-Shamanna is a witness to Ex.P.12-seizure mahazar. In his evidence, he has deposed that the Police seized M.O.1-blue colour packet in his presence, thus police conducted mahazar. In the cross-examination, he has admitted that nobody was present at the time of conducting seizure panchanama in the house of accused No.1 and he does not know who handed over M.O.1 to the Police and he affixed his signature on the road.
n. P.W.19-Baburao and P.W.20-Ganpati are also witnesses to Ex.P.13-seizure panchanama. They have turned hostile and have not supported the case of the prosecution.
o. P.W.21-Maruti is the grandfather of the deceased. He is a witness to Ex.P.14-seizure mahazar (chit of the deceased). In the cross-examination, he has categorically admitted that he does not know the contents of Ex.P.14 and he affixed his signature as per the instructions of the Police.
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 p. P.W.22-Bheemanna is also a witness to Ex.P.14- seizure mahazar. He has turned hostile and has not supported the case of the prosecution.
q. P.W.23-Shivraj is a relative of P.W.1. He has turned hostile and has not supported the case of the prosecution.
r. P.W.24-Madivalayya, Assistant Sub-Inspector of Police, received the complaint, visited the spot, conducted panchanama, recorded the statements of witnesses and completed investigation and filed the charge-sheet. In the cross-examination, he has categorically admitted that as soon as he visited the spot, he did not record the statement of witnesses and he recorded the statements of all witnesses in the Police Station only, he conducted spot panchanama at spot itself and rest of the pachanama were prepared at Police Station. He further admitted that Exs.P.2 and P.3-dying declarations were recovered in front of the house of accused No.1 and Exs.P.2 and P.3 do not specify the name, date and any other identification.
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 s. P.W.25-Keerthi, Tahsildhar, Basavakalyana, has deposed that on 4.12.2013 as per the request of the Police Sub-Inspector, Bidar Rural Police Station, conducted inquest panchanama on the dead body of the deceased as per Ex.P.4 and recorded the statements of P.Ws.3, 4, 5 and 10.
14. In the light of the above evidence, the trial Court convicted accused No.1 for the offences punishable under Sections 498A and 306 of the IPC.
15. On perusal of the material available on record and the oral testimony of prosecution witnesses, it appears that PW1 - Smt. Rukmini, mother of deceased has stated that accused No.1 was harassing deceased on account of his illicit relationship with his sister-in-law i.e., accused No.4. But in the cross-examination she has clearly admitted and clearly given go by to the prosecution case. PW2 - Panch witness to Inquest Panchnama has deposed that she does not know contents of Ex.P4 -
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 Inquest Panchnama. PW3 - Ganapathi father of deceased has stated that all accused persons were harassing deceased and they had arranged for second marriage to accused No.1 and the factum of alleged harassment came to his knowledge through his wife PW1. In fact, PW1 and PW3 being mother and father of deceased, respectively, never visited the house of accused No.1 soon after marriage of deceased Premalatha with accused No.1. Further on perusal of the evidence of PW4, who is none other than uncle of deceased, he has not supported the prosecution case and in his evidence in general terms he has stated that accused were giving trouble to the deceased. PW5, who got advised to accused No.1 and deceased, turned hostile to the case of prosecution. PW6 - relative of PW1 and PW3 in the cross-examination has admitted the suggestions made by the counsel for accused. PW7 also turned hostile to the case of prosecution. PW8 - Narsappa brother of PW1 came to know through PW1 about the incident and the manner of assault by accused persons. He has specifically stated
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 that accused persons were stating that the deceased was not looking nice and she did not know cooking. This part of evidence is uncorroborated with the oral testimonies of PW1 and PW3. Whereas, in the cross-examination he has clearly given go by to the prosecution evidence. PWs.9 and 10 have turned hostile to the case of prosecution. PW11 being sister of deceased, she does not know the contents of Exs.P2 and P3 - Chits alleged to have been handed over to her by deceased. But as per the evidence of PW24 - ASI, Exs.P2 and P3 were recovered from the house of accused No.1. Therefore, there is contrary evidence in respect of seizure of Exs.P2 and P3 and none of the prosecution witnesses have stated about the contents of Exs.P2 and P3. In the instant case, all witnesses viz., Spot Mahazar witnesses, Seizure Mahazar witnesses, Inquest Mahazar witnesses and also independent witnesses, all have turned hostile to the case of prosecution. It appears that the trial Court in an uncorroborated testimonies of prosecution witnesses
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 convicted the appellant. The prosecution case is full of omissions, contradictions and improvements.
16. After having heard the learned counsel for the parties and on going through the records of the case, it appears that the prosecution though examined in all 25 witnesses, but except the relatives of the deceased other witnesses have turned hostile and not supported the case of prosecution. The case of the prosecution is mainly dependent upon the evidence of PW1, PW3, PW4, PW6, PW8, PW11, PW21, PW24 and PW25. PWs.1 and 3 are the parents of the deceased and PW4 is uncle of the deceased. PW8 is brother of PWs1 and PW11 is sister of deceased and PW21 is grand father of deceased and PW24 is the ASI, Investigating officer and PW25 - Tahasildar. The relatives of deceased had deposed inter alia about the harassment meted out by accused persons to deceased mentally and physically.
17. Having regard to the said evidence, which has also appreciated by the Sessions Court and there remains
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 no shadow or doubt that the deceased was subjected to harassment at the instance of accused No.1 and that the prosecution had successfully brought home that the charge leveled against accused No.1 insofar as the offence under Section 498A of IPC is concerned.
18. However, next question that falls for consideration by this Court is: "whether prosecution had proved beyond reasonable doubt that the charge leveled against the appellant with regard to the offence under Section 306 of IPC read with Section 34 of IPC?" .
19. At this juncture, it would be beneficial to reproduce the relevant provision contained in Section 306 IPC pertaining to Abetment of suicide.
"306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
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20. What is "Abetment of a thing" has been described in Section 107 which reads as under:-
"107. 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."
21. From the bare reading of the said provisions, it clearly transpires that in order to convict a person for the offences under Section 306 IPC, the basic constituents of the offence namely where the death was suicidal and whether there was an abetment on the part of the
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 accused as contemplated in Section 107 IPC have to be established.
22. In M. Mohan Vs. State Represented by the Deputy Superintendent of Police1, the Hon'ble Supreme Court has elaborately dealt with the provisions contained in Section 306 read with Section 107 IPC, and after discussing various earlier decisions has observed as under: -
"41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9 SCC 618 :
2002 SCC (Cri) 1088] has examined different shades of the meaning of "instigation". Para 20 reads as under : (SCC p. 629) "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
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 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."
In the said case this Court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant-accused having abetted commission of suicide by Seema (the appellant's 1 (2011) 3 SCC 626 wife therein) may necessarily be drawn.
23. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : the Supreme Court held that,
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 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 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.
43. As per the dictionary meaning of the word "instigation", 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 others. 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.
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24. 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.
25. The intention of the legislature and the ratio of the cases decided by Hon'ble Apex 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. 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 she committed suicide.
26. In view of the above, it is quite clear that in order to bring the case within the purview of 'Abetment' under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused. For the purpose proving the charge under Section 306 IPC, also there has to be an
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide.
27. So far as facts of the present case are concerned, the prosecution has not examine CW29 Dr. Sudhir Kamatikar who conducted postmortem examination on the dead body of deceased Premalatha for the best reasons known to it, in order to prove that the deceased had committed suicide by jumping in the well, because of the mental and physical harassment of the appellants-accused. But as per the postmortem report the cause of death was "due to drowning as a result of Asphyxia". It may be noted that nothing comes out from Doctors evidence as to whether the death was suicidal or not.
28. Admittedly, the death of the deceased was due to the drowning as a result of Asphyxia, there was no opinion given by her nor any opinion was sought from her as to whether it was a suicide committed by the deceased
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 or it was an accident by which she fell down in the well. Even if it is presumed that the deceased had committed suicide, there was no evidence whatsoever adduced by the prosecution that there was an abetment on the part of any of the accused which had driven her to commit suicide. There is no evidence worth the name to show that any of the appellants- accused had either instigated or intentionally aided or abetted the deceased to commit suicide or had caused any abetment as contemplated under Section 107 of the IPC.
29. Though it is true that as per Section 113A of the Evidence Act, when the question arises as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband, and when it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court can presume, having regard to the other circumstances, that such suicide has been
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 abetted by her husband or such relative of her husband. However, mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.
30. In Mangat Ram Vs. State of Haryana, the Hon'ble Supreme Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under: -
"We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act".
31. Under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC.
32. So far as the evidence adduced by the prosecution in the instant case is concerned, I am of the opinion that the prosecution has failed to adduce any clinching evidence to enable the Court to conclude that the appellants-accused had abetted the deceased to commit suicide. In absence of any satisfactory evidence having been brought on record, in my opinion, the trial Court committed grave error in holding the appellant guilty of the offence under Section 306 of IPC.
33. The Hon'ble Supreme Court in the case of Kashibai and Others Versus State of Karnataka reported in 2023 SCC Online SC 575, has elaborately discussed the scope and applicability of Sections 306 and 498A of IPC, and acquitted the accused persons. The facts and circumstances of present case also similar as that of Kashibai's Case.
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34. On perusal of the case on hand, PW11 - sister of deceased has stated that deceased handed over 2 chits Exs.P2 and P3 i.e., death notes. On perusal of said death notes, even PW11 has not informed the complainant about the factual matrix of the case. The deceased at least would have mentioned as to at what time accused No.1 harassed and told her to die or whatever she wants to do she could do. In the absence of any particular material in the note, it cannot be inferred that it is accused No.1 who abated the deceased and because of which the deceased has committed suicide.
35. The Hon'ble Apex Court in the case of Digamber Vaishnav and Another Vs. State of Chhattisgarh reported in (2019) 4 SCC 522 at paragraph No. 19 has held as under:
"19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 which is favourable to the accused, should be adopted."
36. In case of Nagabhushan Vs. State of Karnataka reported in (2021) 5 SCC 222, the Hon'ble Apex Court observed that;
7.2.2. When the findings of the fact recorded by a Court can be held to be perverse has been dealt with and considered in para 20 of the aforesaid decision, which reads as under; (Babu case, SCC P.
199) " The funding of fact recorded by a Court can be held to be perverse, if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/ inadmissible material.
The finding may also be set to be perverse if it is against the weight of the evidence, or if the findings so outrageously defies logic as to suffer from the vice of irrationality.
7.2.3. It is further observed, after following the decision of this Court in Kuldeep Singh Vs. Commissioner of Police that if a decision is arrived at on the basis of no evidence or thoroughly unreliable
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 evidence and no reasonable person would act upon it, the order would be perverse. But, if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."
(emphasis supplied)
37. Considering the entire material available on record, there is no nexus and proximity in the conduct and behavior of accused No.1 with that of suicide committed by deceased - Premalatha. In the case of abatement for suicide it should be there about an indirect act or direct act which led deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that she committed suicide.
38. In the instant case without a positive act on the part of accused to instigate or evade in committing suicide by deceased the conviction cannot be sustained.
39. Under these facts and circumstances of the case, the Court noted that abatement is necessary for the offence under Section 306 of IPC and it is not present in
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 the case on hand. In the absence of any satisfactory evidence having been brought on record, in my opinion the trial Court has committed error in holding accused No.1 guilty of offences under Sections 498A and 306 of IPC. Furthermore, the trial Court has rightly acquitted accused No.2 to 4 of the aforesaid offences, however, wrongly convicted accused No.1 based on the same evidence available on record. Hence, the following:
ORDER The appeal is allowed.
The judgment of conviction and order of sentence passed by the trial Court in S.C. No.181/2014 on the file of Additional District and Sessions Judge, Bidar, dated 14.06.2017 is hereby set aside.
The bail bond of accused is set aside and he is set at liberty.
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NC: 2023:KHC-K:7141 CRL.A No. 200103 of 2017 The fine amount, if any, deposited by accused No.1 shall be returned to him.
Sd/-
JUDGE KVK SBS List No.: 1 Sl No.: 34