Karnataka High Court
Vidya D/O. Ragunath Rao vs The State Repted. By S.P.P For on 13 October, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13 t h DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.2596/2012
C/W CRIMINAL APPEAL NO.2597/2012
CRL.A NO.2596 OF 2012
BETWEEN:
K RAMCHANDRA RAO S/ O. K. SREEPADA RAO
AGE: 36 YEARS , OCC: CO- ORDINATOR,
BEO OFFICE, HOSPET.
...A PPELLANT
(BY SRI. S.S . KOT I, ADV OCATE)
AND:
THE STATE BY S .P.P. REPTD. BY
SUB INS PECT OR POLICE,
KURUGODU POLICE STATION IN BELLARY
DISTRICT, OFFICE AT HI GH COURT
BUILDING, D HARW AD .
... RES PONDENT
(BY SMT. SEEMA S HIVA NAIK, HCGP)
THIS CRIMINAL A PPEAL IS FI LED U/S 374( 2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 25.02.2002 IN S.C.N O.13/ 2008 PASSED
BY THE ADDL. DIST. & SESSIONS JUDGE, BELLARY,
THEREBY CONVICTING THE ACCUS ED NO.1, FOR T HE
OFFENCES P/U/S 306 R/W 34 OF I PC WHEREIN THE
APPELLANT NO.1 HAS BEEN CON VICTED FOR THE
OFFENCE P/ U/S 498-A R/W 34 OF IPC AND ALSO TO
PAY A FINE OF RS.5000/- AND IN DEFAULT T O PA Y
THE FINE TO UND ERGO RI F OR SIX MONTHS FURTHER
2
ACCUSED N O.1 HAS ALSO BEEN CONVICTED U/S 306
R/W 34 OF IPC AND SENTENCED TO UNDERGO RI FOR
3 YEARS IN ADDI TION TO PAY A F INE OF RS .5000/-
AND IN DEFAULT TO PAY FINE TO UNDERGO RI F OR
ONE YEAR.
CRL.A NO 2597 OF 2012
BETWEEN:
SRI VIDYA D/O. RAGUNATH RA O
AGE: 34 YEARS , OCC: HOUS EHOLD
R/O.CHITRAMPALLI, TQ: HA GARI
BOMMANAHALLI, D IST: BELLA RY.
...A PPELLANT
(BY SRI.SRINAND A. PACHHAPURE, A DVOCATE)
AND:
THE STATE REPT ED. BY S.P.P FOR
SUB INS PECT OR OF POLICE
KURUGODU POLICE STATION IN BELLARY DIST.
OFFICE AT HI GH COURT BUILDIN G,
DHARWAD.
... RES PONDENT
(BY SMT. SEEMA S HIVA NAIK, HCGP)
THIS CRIMINAL A PPEAL IS FI LED U/S 374( 2) OF
CR.P.C. S EEKING TO SET ASIDE THE JUDGEMENT AN D
ORDER DATED 25.02.2002, IN S.C.NO.13/2008,
PASSED BY THE ADDL. DIST. & SESSIONS JUDGE,
BELLARY , THEREBY CONVICTING A CCUSED NO.2 FOR
THE OFFENCES P/ U/S 306 R/W 34 OF IPC WHEREIN
APPELLANT NO.1 HAS BEEN CON VICTED FOR THE
OFFENCE P/ U/S 498-A R/W 34 OF IPC AND ALSO TO
PAY A FINE OF RS.5000/- AND IN DEFAULT T O PA Y
THE FINE TO UND ERGO RI F OR SIX MONTHS FURTHER
ACCUSED N O.1 HAS ALSO BEEN CONVICTED U/S 306
R/W 34 OF IPC AND SENTENCED TO UNDERGO RI FOR
3 YEARS IN ADDI TION TO PAY A F INE OF RS .5000/-
AND IN DEFAULT TO PAY A FINE TO UNDERGO RI F OR
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ONE YEAR. SIM ULTANEOUSLY A CCUSED NO.2 I S
SENTENCED TO UN DERGO RI FOR TW O YEARS FOR THE
OFFENCE UND ER SEC. 306 R/W SEC.34 OF I PC AND TO
PAY A FINE OF RS.5000/- AND IN DEFAULT OF
PAYMENT OF FINE TO UNDERGO RI F OR ONE YEA R.
THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT , COMING ON F OR
PRON OUNCEMENT OF JUD GMENT THROUGH VIDEO
CONFEREN CE, AT BENGALURU, THIS DAY, THE COURT
DELIVERED THE F OLLOWING:
JUDGMENT
Accused No.1 has filed Criminal Appeal No.2596/2012 and accused No.2 has filed Criminal Appeal No.2597/2012 challenging the judgment of conviction and order of sentence dated 25.02.2012 passed in S.C. No.13/2008 by the learned II Additional Sessions Judge, Bellary, convicting the appellants/accused Nos.1 and 2 for the offences punishable under Sections 498A and 306 read with Section 34 of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity).
2. It is the case of the prosecution that accused No.1 having been married Smt. Suchetha @ Pragathi 4 daughter of Smt. Prabhavathi Nadiger and sister of the complainant Prashanth Nadiger at Venkateshwara Temple, Hubli, as per Hindu custom and rites on 03.11.2006. In furtherance of the common intention to marry accused No.2-Vidya, accused No.1 subjected her to cruelty and accused No.1 before marrying Smt.Suchetha, made dowry demand of Rs.1,50,000/-, two house sites at H.B.Halli and a bike for his use and her ATM card. Accordingly, on 31.10.2006 she drawn Rs.15,000/- from her bank account and availed loan of Rs.15,000/- from Banapura Virupaksha Reddy of Kallukamba and thereby she has given Rs.30,000/- to him to buy bike and he has paid the said amount as advance to the dealer to buy bike as demanded. Accused Nos.1 and 2 in furtherance of their common intention, on 24.11.2006, abused her in filthy language over phone that they are on honeymoon at Gulbarga and teased her with vulgar words questioning her propriety in notifying her marriage with accused No.1 in 5 news paper and accused No.2-Vidya told her not to join the marital company of accused No.1, as she had married him and teased her to die somewhere. Thus, they abetted her to commit suicide and Suchetha committed suicide by hanging at Kallukamba village in her rented house which belongs to Banapurada Pampapati Reddy and Verupaxareddy on 24.11.2006.
3. The trial Court framed charges for the offences punishable under Sections 498A and 306 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Accused Nos.1 and 2 pleaded not guilty and claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution examined 33 witnesses as PWs.1 to 33 and got marked Exs.P-1 to P-55 and 7 material objects as M.Os.1 to 7. After closure of the evidence on behalf of the prosecution, accused Nos.1 and 2 have been examined under Section 313 of Cr.P.C. Their defense is 6 one of total denial. They did not lead any defense evidence.
5. The trial court, after hearing the arguments and after framing the points for consideration, has convicted accused Nos.1 and 2 for the offence punishable under Section 498A and 306 read with Section 34 of IPC and acquitted them of the offence under Sections 3 and 4 of the Dowry Prohibition Act, 1961. Accused No.1 has been sentenced to undergo rigorous imprisonment for 3 years and accused No.2 is sentenced to undergo rigorous imprisonment for 2 years for the offence under Section 306 read with 34 of IPC and to pay fine of Rs.5,000/- each with default sentence and further accused Nos.1 and 2 are sentenced to undergo rigorous imprisonment for 2 years for the offence under Section 498A read with Section 34 of IPC and to pay fine of Rs.5,000/- each with default sentence. 7
6. Heard the learned counsel appearing for the appellants/accused Nos.1 and 2 and the learned High Court Government Pleader for the respondent-State.
7. It would be the contention of the learned counsel for the appellant that the judgment of conviction and sentence passed by the trial Court is highly illegal and perverse. That the approach and appreciation of the evidence by the learned trial Judge is very strange and unknown to law; that the learned trial Judge failed to take note that no witness has stated for having seen or for having been informed by the deceased to any of the witnesses about the cruelty or harassment and under such circumstances, the positive finding about ill-treatment, harassment or cruelty practiced on her, is baseless and perverse. The learned trial Judge has substituted a different story and thereby drawn an inference which is unjustifiable and there is no iota of evidence that accused No.1 visited 8 Kallukamba where deceased was residing in a rented house. What has happened, who has abetted, why she has committed suicide, are all questions which have remained unanswered or unexplained by the prosecution. The examination of accused Nos.1 and 2 itself has misled accused Nos.1 and 2 in explaining their defence to the Court. No question regarding Ex.P-46- call details has been put in the statement of the accused recorded under Section 313 of Cr.P.C. The framing of charge itself is highly ambiguous. Mere marking of Exs.P-36 to 42 is not a proof of the said documents. The said documents go to show that the disputed marriage of accused No.1 with accused No.2 had taken place earlier to that date i.e. on 20.08.2006 much earlier to the date of registration of the marriage on 23.11.2006 and also of the marriage of the deceased with accused No.1 which is alleged to have been performed at Venkateshwara Temple, Hubli on 03.11.2006. The learned trial Judge has illegally placed 9 reliance on Ex.P-46, extract of alleged call sheet pertaining to mobile No.9449648209 alleged to be belonging to the deceased Suchetha which is stated to have been seized under Ex.P-2-spot panchanama in the presence of PWs.17 and 18, who have turned hostile. Even Ex.P-2 though reveal that the SIM card is also seized, the said SIM card is not produced before the Court nor it is marked as an exhibit. The Investigating Officer-PW-33, who has seized M.O.1-mobile alleged to be belonging to the deceased, has not investigated whether the said SIM card stands in the name of the deceased. No application filed by the deceased for issue of mobile phone and SIM card in her name has been obtained by the Investigating Officer. The same is the case with the other mobile phone No.9448837552 stated to be belonging to accused No.1. No material evidence nor documentary evidence is produced by the prosecution to show evidence that the said phone, in fact, belongs to accused No.1. More so, no witnesses 10 have spoken about it including the Investigating Officer. The source of the origin of the document and its authenticity and who have issued, is not forthcoming which is essential to place reliance on Ex.P-46. Therefore, it loses evidentiary value and the same cannot be relied on. Ex.P-46 by itself will not connect the accused with the alleged commission of the offences by accused No.1 much less by accused No.2. The prosecution alleges that the deceased after speaking on her mobile phone with accused No.1 in Anjure garden belonging to PW-4-Hanumantha Reddi, was seen coming weeping due to the scolding and abusing by accused No.1 along with accused No.2 but PW-4 himself has turned hostile and has not supported the prosecution case. It is the case and the evidence that the marriage of accused No.1 with the Suchetha- deceased took place at Hubli on 3.11.2006 in Venkateshwara temple. However, it is alleged by the prosecution that on 03.11.2006 itself, after the 11 marriage, accused No.1 left Suchetha-deceased on the ground that he has office duty at Hampi and went away and the evidence reveals that accused No.1 did not turn up either to Kallukamba or to Kerekere village. Hence, there is no question of ill-treatment or harassment or cruelty practiced on her by accused No.1 either physically or mentally. Accused No.2 has not committed any offence on the deceased. The learned trial Judge has committed grave error in considering the explanation alleged to have been offered by accused Nos.1 and 2 in their statement under Section 313 Cr.P.C. without considering the evidence placed on record by the prosecution regarding the proof of the same. It is his further contention that the prosecution has utterly failed to prove the guilt of accused Nos.1 and 2 for the offences punishable under Sections 498A and 306 read with Section 34 of IPC.
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8. Learned counsel appearing for the appellant in Crl.A.No.2597/2012 for accused No.2 has raised the points similar to that of the counsel for the appellant in Criminal Appeal No.2596/2012.
9. Per contra, learned High Court Government Pleader contended that PW-1 is the brother and PW-2 is the mother of the deceased and they have deposed regarding marriage of Suchetha-deceased with accused No.1 on 03.11.2006. It is her further submission that the marriage of accused No.1 with accused No.2 has been registered with the District Registrar, who has been examined as PW-27 and the application filed by accused Nos.1 and 2 is at Ex.P-35. The said application goes to show that accused No.1 married accused No.2. It is her further submission that there are number of calls from the mobile of accused No.1 to the mobile number of the deceased and the same has been recorded in Ex.P-46-call detail list which go to show 13 harassment by accused No.1 to the deceased. It is her further submission that the trial Court, rightly appreciating the evidence on record, has raised presumption under Section 113A of the Evidence Act, 1872 and held that accused Nos.1 and 2 have harassed and ill-treated the deceased and abetted her to commit suicide. She has further submitted that the mobile - M.O.1 used by the deceased has been seized under mahazar - Ex.P2. It is her further submission that the prosecution has proved that accused Nos.1 and 2 have ill-treated the deceased and abetted her to commit suicide and therefore, the Court below has rightly convicted the appellants/accused Nos.1 and 2 for the offences under Section 498A and 306 read with Section 34 of IPC.
10. Having heard the arguments, perusing the records and the grounds urged, the following points arise for my consideration:
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i. Whether the learned trial Judge is justified in convicting the appellants/accused Nos.1 and 2 for the offence punishable under Section 498A of IPC?
ii. Whether the learned trial Judge is justified in convicting the appellants/accused Nos.1 and 2 for the offence punishable under Section 306 of IPC?
and I answer the points for consideration in the negative for the following reasons:
11. The case of the prosecution is that accused No.1 married Smt. Suchetha @ Pragathi daughter of Smt. Prabhavathi Nadiger (PW-2) and sister of the complainant-Prashanth Nadiger (PW-1) at Venkateshwara Temple, Hubli, as per the Hindu customs and rites on 03.11.2006. It is the further case of the prosecution that accused No.1 thereafter married accused No.2 and got registered their marriage with the District Registrar, Bellary on 23.11.2006. Accused Nos.1 and 2 on 24.11.2006 abused Suchetha in filthy 15 language over phone that they are on honeymoon at Gulbarga and teased her with vulgar words questioning her propriety in notifying her marriage with accused No.1 in the news paper and accused No.2 told her not to join the marital company of accused No.1 as she had married him and teased her to die somewhere. Thus, they abetted Suchetha to commit suicide. Suchetha committed suicide by hanging at Kallukamba village on 24.11.2006 in a rented house belonging to Banapurada Pampapatireddy and Verupaxareddy.
12. It was the case of the prosecution that accused No.1 demanded dowry from the parents of deceased Suchetha and he was charged for the offence under Sections 3 and 4 of the DP Act. The trial Court has acquitted accused No.1 for the offences under Sections 3 and 4 of the DP Act. The State has not preferred any appeal against the said finding. 16
13. The prosecution in order to establish its case, has to prove that Suchetha-deceased married accused No.1 on 03.11.2006 and the marriage of accused No.1 with accused No.2 has been registered on 23.11.2006 with the District Registrar, Bellary. Further as accused Nos.1 and 2 have ill-treated and harassed mentally Suchetha over telephone on 24.11.2006 and abetted her to commit suicide. Therefore, the deceased has committed suicide on 24.11.2006 in her rented house at Kallukamba village belonging to Pamapapatireddy.
14. PW-1 is the brother of deceased. He has stated in his evidence that Suchetha-deceased is her elder sister and accused No.1-Ramchandra Rao is his brother-in-law and husband of his sister-Suchetha. The marriage of his elder sister Suchetha and accused No.1 was performed on 03.11.2006 at Venkateshwara temple, Manjunath Nagar, Hubli and thereafter his elder 17 sister and accused No.1 were residing in Kallukamba village.
15. PW-2 is the mother of deceased Suchetha. It is her evidence that the marriage of her daughter Suchetha has been performed during November 2006 in Venkateshwara temple, Hubli and she was residing at Kallukamba village and after marriage she and her husband were happy. The said aspect has not been challenged in the cross-examination of PWs.1 and 2.
16. PW-28 is the priest of Venkateshwara Temple, Hubli. It is his evidence that he was working as a priest in Venkateshwara Temple and the photographs at Exs.P-4 to 6 are taken in the temple where he was a priest and he is seen in those photographs. It is his further evidence that he has performed the marriage of Suchetha with accused No.1 and identified accused No.1 in the said photos. Exs.P-4 to P-6 are the photographs of the marriage of accused No.1 with 18 Suchetha-deceased. Ex.P-42 is the marriage card seized from the house of the deceased at the time of preparing Ex.P-2-scene of offence panchanama. Ex.P-43 is the greeting letter issued by Sri. Venkateshwara Temple and it is dated 03.11.2006. PW-33 is the PSI. He has deposed in his evidence that he has prepared Ex.P-2- scene of offence panchanama and seized Ex.P.42 marriage card of accused No.1 with the deceased dated 03.11.2006. Ex.P-48 is the certificate issued by the Government Lower Primary School, Kerekere, containing the leave details by Suchetha wherein she had applied for leave from 02.11.2006 to 04.11.2006 for marriage and performing the pooja. The above said aspects clearly go to establish that accused No.1 married Suchetha-deceased on 03.11.2006 in Ventakeshwara Temple, Hubli.
17. It is the case of the prosecution that marriage of accused No.1 with accused No.2 came to be 19 registered in the District Registrar's Office, Bellary on 23.11.2006. PW-27 is the District Registrar, Bellary. It is the evidence of PW-27 that when he was working as Sub-Registrar, accused Nos.1 and 2 have given application for registering their marriage solemnized on 20.08.2006 and produced a copy of the marriage card, TC of accused No.2, photograph of marriage and he registered their marriage and issued certificate as per Ex.P-36. In the cross-examination, the accused have suggested that the said document are created documents. Ex.P-35 is the application filed by accused Nos.1 and 2 to register their marriage that took place on 20.08.2006 and it contains their signatures. Ex.P-36 is the certificate of Registration of Marriage issued by the Registrar of Marriages, Bellary, dated 23.11.2006 wherein it is certified that the marriage of accused No.1 with accused No.2 solemnized on 20.08.2006 has been registered on 23.11.2006. The said documents are furnished by PW-27 to the Investigating Officer under 20 Ex.P-37. Ex.P-38 is the memorandum of marriage with respect to accused No.1 and accused No.2. Ex.P-39 is the copy of transfer certificate of accused No.2. Ex.P.40 is the photograph of marriage of accused No.2 with accused No.1. Ex.P-41 is the receipt issued by Sri Kote Malleshwaraswamy temple dated 20.08.2006 for Rs.500/- for having paid by accused Nos.1 and 2 on the occasion of their marriage. Ex.P-42 is the printed Marriage invitation card of accused No.2 with accused No.1 solemnized on 20.08.2006 at Sri Kote Malleshwaraswamy temple, Bellary. As per the evidence of PW-27, these documents are furnished by accused Nos.1 and 2 at the time of registration of their marriage. The said marriage of accused No.1 with accused No.2 has been registered by PW-27-Sub-Registrar in discharge of his official duties. Therefore, the said aspect is the relevant factor under Section 35 of the Evidence Act.
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18. The marriage of Suchetha-deceased with accused No.1 was solemnized on 03.11.2006. Suchetha committed suicide on 24.11.2006. Ex.P-19 is the inquest panchanama conducted by PW-20-Tahsildar and Taluka Executive Magistrate. Ex.P-23 is the postmortem report. The postmortem examination has been conducted by PW-19-Doctor who has opined that the cause of death is due to asphyxia as a result of suicidal hanging. PW-19-the doctor who conducted postmortem examination has examined the saree used for hanging by the deceased and gave opinion as per Ex.P-24 stating the said saree withstands the weight of the body of the deceased. Exs.P-25 to 28 are the photographs of the dead body of Suchetha. The above said evidence clearly establish that the death of the deceased is a suicidal death.
19. PW.1 is the brother of the deceased; PW-2 is mother of the deceased; PW-3 is the co-teacher of the 22 deceased; PW-4 is the relative of the landlord of the deceased; PWs.5 and 6 are the neighbours of the deceased; PW-7 is the son of the landlord of the deceased; PW-8 is the teacher in H.B.Halli known to the mother of the deceased; PW-9 is the co-teacher known to the mother of the deceased; PWs.10 and 11 are the residents of Kallukamba village, PW-12 is the maternal uncle of the deceased; PW-14 is the co-teacher of the deceased and PWs.22 and 23 are the co-teachers of the deceased at Sonna village. All these witnesses, who were closely associated with the deceased, have not stated anything regarding the ill-treatment or harassment by the accused to the deceased. It is the case of the prosecution that the deceased used to tell before them regarding ill-treatment and harassment given by the accused. All these witnesses have not supported the case of the prosecution and they have been treated as hostile. PW-31-B.Pampapati Reddy, is the owner of the house where the deceased was residing 23 as a tenant at Kallukamba village. PW-31 has denied any dowry harassment by accused No.1 to the deceased.
20. Ex.P-46 is the call details record with respect to the calls made from mobile No.9448837552. There are several calls made from mobile No.9448837552 to mobile No.9449648209 on 24.11.2006. The trial Court has placed much reliance on Ex.P-46 to hold that accused No.1 being the husband of the deceased and accused No.2 being the relative of the husband of the deceased have made several phone calls to the deceased on 24.11.2006 and harassed and abetted her to commit suicide and therefore Suchetha has committed suicide on the night of 24.11.2006 in her house at Kallukamba village. It is to be examined whether the said Ex.P.46- call details record contain calls made by the mobile number of accused No.1 to the mobile number of the deceased and they have abetted the deceased to commit suicide. Ex.P-46 has been obtained by PW-30-Police 24 Inspector(Women Police), Anti-Dowry Cell, CID, Bangalore. PW-30 in her evidence has stated that she has obtained call details as per Ex.P-46. PW-30 has not stated from where and from whom the said details as per Ex.P-46 has been obtained. On perusal of Ex.P-46, it is seen that many calls were made and received from mobile No.9448837552. Ex.P-46 does not contain the signature of the person who has issued it. The trial Court assumed that mobile No.9448837552 is of accused No.1 and mobile No.9449648209 pertains to the deceased. None of the witnesses examined have stated about the mobile number of accused No.1 and the deceased. There is no basis for the trial Court to consider and hold that the mobile No.9448837552 belongs to accused No.1 and mobile No.9449648209 belongs to Suchetha-deceased. The Investigating Officer has not obtained any subscriber's application form submitted by the applicant who has obtained cell Nos.9448837552 and 9449648209 to show that they 25 belongs to a particular person. The mobile set of deceased-NOKIA 1108 has been seized from her house at the time of preparing Ex.P-2-scene of offence panchanama. PW-33 has prepared the said Ex.P-2-spot mahazar under which M.O.1-mobile of the deceased has been seized but the SIM card in M.O.1 has not been seized. There are several out going calls from mobile No. 9448837552 to 9449648209 on 24.11.2006. The trial Court assumed that these calls are made by accused No.1 to the mobile of the deceased and came to the conclusion that accused Nos.1 and 2, who were together on 24.11.2006, have harassed and asked Suchetha to die. Thereafter the deceased has committed suicide. Even though for the sake of arguments, if it is taken that phone No.9448837552 belongs to accused No.1 and mobile No.9449648209 belongs to the deceased, what is the conversation between them which took place on 24.11.2006, is not placed on record. The trial Court assumed and suspected that accused Nos.1 26 and 2's marriage being registered on 23.11.2006 have told the same to the deceased over mobile phone on 24.11.2006 and abetted her to commit suicide. The suspicion, however grave it may be, cannot take place of proof. In the case of Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan reported in AIR 2013 Supreme Court 3150, the Hon'ble Apex Court at paragraph 17 has observed thus:
"17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. ......."
21. The trial Court only on the basis of suspicion that accused Nos.1 and 2, whose marriage is registered on 23.11.2006, called to the mobile of the deceased and asked her not to attend the marital company of accused No.1 and asked her to go and die. The said suspicion even though grave, cannot take place of proof as held by 27 the Hon'ble Apex Court in Raj Kumar (supra). The trial Court has placed much reliance on Ex.P-46-call details record but the same is not put forth to the accused in their statement recorded under Section 313 of Cr.P.C. The circumstance which is not put forth to the accused in his examination under Section 313 of Cr.P.C., cannot be used against him and have to be excluded from consideration. The same has been held by the Hon'ble Apex Court in Raj Kumar (supra).
22. Section 306 of IPC deals with abetment of suicide. The said provision reads as under:
" 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."
23. In the case of Sohan Raj Sharma v. State of Haryana reported in AIR 2008 Supreme Court 2108, 28 the Honble Apex Court at paragraph 8 has observed as under:
" 8. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under Section 306 of IPC."
Section 107 of IPC defines 'abetment of a thing'. It reads as under:
"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."29
24. Further the Hon'ble Apex Court in the case of Sohan (supra) at paragraph 10 has held as under:
"10. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. 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 by instigation, conspiracy or intentional 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."
25. The word 'suicide' in itself is no where defined in the IPC. The Hon'ble Apex Court in the case 30 of Gangula Mohan Reddy v. State of Andhra Pradesh reported in AIR 2010 Supreme Court 327 has given the meaning of 'Suicide' at paragraph 7 which reads thus:
" 7. The word suicide in itself is nowhere defined in the Indian Penal Code, however, its meaning and import is well known and requires no explanation. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself."
26. It is for the prosecution to prove beyond reasonable doubt the active and direct role of accused. Pre-requisites for conviction, the positive act on part of accused to instigate or aid in committing suicide is necessary. There has to be clear mens rea to commit offence. The burden to prove active and direct role of accused in offence, rests on the prosecution. This Court in the case of Sikander Alias Gouruba v. State of Karnataka reported in 2016(3) AKR 650 at paragraph 15 has held as under:
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" 15. Reading of S.306 IPC makes it clear that the act of abetment plays a vital role. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be directed/attracted, much less sustained. While examining the prosecution case, it has to be found out, whether there was an active and direct role of the accused which led the deceased to commit suicide seeing no option. It is for the prosecution to prove beyond all reasonable doubt the active or direct role of the accused with regard to the alleged trial."
27. The evidence of the witnesses examined in this case does not show the active role or direct involvement of accused Nos.1 and 2 which led to committing of suicide by the deceased. Merely because the marriage of accused No.1 with accused No.2 is registered on 23.11.2006 is not a reason to hold that the accused have abetted the deceased to commit suicide. The prosecution has to establish that the said registration of marriage of accused No.1 with accused No.2 on 23.11.2006 has been told to the deceased- 32 Suchetha by accused Nos.1 and 2 and they instigated and abetted her to commit suicide. Therefore, there is a missing link in the evidence of the prosecution regarding communication of registration of marriage of accused No.1 with accused No.2 to the deceased and instigation by them to the deceased to go and die.
28. The death of the deceased took place within 7 years of marriage and only on that ground that the trial Court has raised presumption under Section 113A of the Evidence Act. In the instant case, there is no direct evidence to establish that the appellants either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of such direct evidence, the prosecution has relied on Section 113A of the Evidence Act under which the Court may presume of proving circumstances enumerated therein and having regard to all other circumstances of the case that the suicide had 33 been abetted by the accused. The explanation to Section 113A further clarifies that "cruelty" shall have the same meaning as in Section 498A of IPC. Under Section 113A of the Evidence Act, the prosecution has to first establish that the women concerned committed suicide within a period of 7 years from the date of her marriage and that her husband or any relative of her husband had subjected her to cruelty. When presumption under Section 113A of Indian Evidence Act has to be applied has been considered by the Apex Court in the case of MANGAT RAM V. STATE OF HARYANA, reported in AIR 2014 SUPREME COURT 178, at paragraph No.26 which reads as under:
" 26. 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 34 other circumstances of the case, that such suicide has been abetted by her husband or by such relative of 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 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. In this connection, we may refer to the judgment of this Court in Hans Raj v. State of Haryana (2004) 12 SCC 257:(AIR 2004 SC 2790: 2004 AIR SCW 1283), wherein this Court has examined the scope of Section 113-A of the Evidence Act and Sections 306, 107, 498-A etc. and held that, unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. This Court held that, 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 35 allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word 'cruelty' in Section 498-A IPC.
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 same has been observed in MANGAT RAM's supra.
29. From a reading of the aforesaid judgment and the materials placed on record, it is clear the prosecution has not placed any material with regard to cruelty meted out on the deceased by accused Nos.1 and 2. Therefore, the trial Court has erred in raising a presumption under Section 113A of the IPC on the phone calls between accused Nos.1 and 2 and the deceased and held that accused Nos.1 and 2 have ill- treated, harassed and abetted the deceased to commit suicide. The finding of the trial Court has no legal 36 basis, as there is no legal evidence. Therefore, the judgment of conviction and order of sentence passed by the trial Court requires to be set aside. Accordingly, I pass the following order:
The appeals are allowed. Accused Nos.1 and 2 are acquitted of the offences punishable under Sections 498A and 306 of IPC.
Fine amount, if any, paid by the accused shall be refunded to them.
Sd/-
JUDGE Kmv