Karnataka High Court
Shivanand S/O. Gollallappa Agatagi vs The State Of Karnataka on 17 August, 2022
Author: P.N.Desai
Bench: P.N.Desai
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IN T HE HIG H C OU RT OF KA RNAT AKA
KAL AB UR AG I BE NC H
D AT ED T HIS T HE 1 7 t h D AY OF AUGUST , 2022
BE FORE
THE HON'B LE MR. J UST IC E P .N.D E SA I
C RIM IN AL A PPE A L N o. 200115/2016
BE TW EE N :
SHIV AN AN D
S/ O GOL LAL LA PP A A GATAG I
AGE :4 4 YR S, OC C U:A GRIC ULTU RE
R/O UKKA LI ONI
B ASA VA NA -BA GEW ADI
DIS T: VIJ AY PUR , ...A PPE LLA NT
(B Y SRI. R. S. LAG AL I, AD VOC AT E )
AND :
THE ST AT E OF KAR NATAKA
REP. BY T HE PSI.,
B ASA VA NA -BA GEW ADI PS .
REP. BY
THE AD DL. S TA TE PU BLIC PROS EC U T OR
HI GH C OURT OF KARN ATAKA
KALAB URAGI BE NCH.
... RESPON DEN T
(B Y SRI. GU RUR AJ V . H ASIL KA R, HCGP)
THIS C R IMI NA L APP E AL IS FI LED U N DER SE C TIO N
374 (2) OF C R . P.C PRAY ING AL LOW T HIS AP PE A L AN D
SET AS IDE T HE J U DGM ENT OF CON V ICTION D AT E D
20. 08.20 16 AND OR DE R OF C ONV ICT ION D AT E D
22. 08.2 016 PA SS E D BY THE PR INC IPA L SE SS IO NS
JUD GE, VIJ AY APU R IN SES SIONS CA S E N O. 117/ 2015 AN D
ACQUIT THE A PPE LLANT .
THIS AP PE AL COM ING ON FOR HE AR ING, TH IS DA Y,
THE COU RT DE LIV ERED TH E FOL LOWING:
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JUDG EMEN T
This ap peal is filed ch alleng ing the judgment of
conviction p assed by th e learned Prl. Sessions
Jud ge, Vijayap u ra, w herein accused No.1 is
sentenc ed to u nder go rig orous imp risonmen t of five
years and to p ay fine of Rs.25,000/- for th e offences
punishable und er Section 306 of Indian Penal Cod e
and in default of paym ent of fine to undergo simple
imp risonme nt for fou r mon ths and further accu sed
No.1 is senten ced to undergo rigoro us imp risonment
for th ree years and to pay fine of Rs.15,000/- for th e
offences punishable under Section 498A of Indian
Pen al Code in d efault of p aymen t of fine, to undergo
simple imprisonm ent for three m onths; and acquitted
accused Nos.2 to 4 fo r th e offenc es punishab le und er
Section s 498A and 306 read with Section 34 of
Ind ian Penal Cod e.
2. The app ellan t is the accused No .1. A
complaint cam e to be lodged b y one C han namm a,
who is mo ther of this d eceased-Jyoti. It is con tended
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that the marriage b etween app ellant and said
deceas ed-Jyoti took place in the year 2005.
Thereafter th ey lived for few years. The d eceased
was working as a Teach er at Governm ent School. It
is alleged that ap p ellan t and oth er accused subjected
Jyoti to physical and m ental cruelty and th ey u sed to
tell that she was not looking g ood and sh e should go
and die. It is fu rther contend ed that if J yoti dies,
her h usb and w ill get a job on comp assion ate g roun d.
It is furth er alleg ed that on 08.11.2013 the said
Jyoti committed suicid e b y con su ming p esticid e in
her m atrimon ial house. It is also alleged th at
because of physical and m ental torture by th e
app ellant and oth er accused , she committed suicide.
Therefo re, th e police registered the case and after
investig ation filed Charg e Sheet again st the fou r
accused for the afo resaid o ffences .
3. There afterward s the learned S essions
Jud ge framed charg e. The pros ecution examined ten
witnesses as P W.1 to PW.10 and got marked ten
docum ents as Ex.P.1 to Ex.P10 and got iden tified
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two material ob jects as MO.1 and MO.2. There
afterward s the statem ent of accused as required
und er Section 313 (1) (b) of Cr.P.C. were record ed,
accused p lead ed not guilty and ac cused have not
chosen to lead any def enc e ev idence.
4. After h earing the arg umen ts, the learned
Sessions Judge acqu itted accu sed Nos.2 to 4 of all
the c harg es b ut co nvic ted accused No.1 who is
app ellant herein for the offen ces stated ab ove.
5. Agg rieved by the sam e, this ap p eal is
preferred .
6. Heard S ri.R.S.Lagali, learned counsel for
the app ellan t an d Sri.Gu ruraj V. Hasilkar, learned
Hig h Cou rt Government Pleader for the respondent-
State.
7. Learned co unsel for th e app ellant argued
that the judgment and o rder of conviction p assed b y
the learned Sessions Judge is not b ased on settled
princip les regard ing ap preciation of evidence. There
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is an error in arriving finding against the guilt of th e
accused . There is material contrad ictions in th e
evid ence of witness es when compared with
complaint-E x.P1. Th e Trial Court has no t considered
the m aterial contrad ictions and importan t
discrepancies in the p rosecutions witnesses. There
is no legally ad missible evidence with regard to ill-
treatmen t. The evidence of PWs.1, 4 and 5 are
contrad ictory w ith eac h other an d there is material
discrepancies in the ir evidence. PW.5 not stated
anyth ing abou t the ill-treatment and has given
different story.
8. Learned cou nsel furth er argued that in fact
other accused are residing sep arately from accused
No.1 and his wife, therefo re, question of ill-
treatmen t does not arise and the Trial Cou rt has
rightly acquitted them and on some evid ence
wro ngly convic ted the ap pellant. Learned coun sel
further arg ued th at it is admitted by the relatives of
the d eceased tha t she w as suffering from hep atitis -B
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and without tolerating th e same, she has co mmitted
suicide.
9. Learned counsel further argued that they
have got two child ren and ap p roach of the Trial
Court in casting burd en on the accused by convicting
the accused is incorrec t. It is the prosecution which
has to p rove th e g uilt beyond all reaso nable doubt.
Then on ly any explanation b y accused is warranted.
The p rosecution failed to p rove its case as alleg ed.
He further argued that Trial Co urt presses in service
Section 106 of E viden ce Act w hic h will not come into
picture. There is no statem ent by any friends of th e
deceas ed r egarding an y such ill-treatment at th e
hands of accu sed/appellant. Even the sentence
imposed is d isp roportio nate and it is on the high er
side. Hence, learn ed counsel p rayed to set aside the
judgm ent of conviction and acqu it th e acc used.
10. In supp ort of h is arg um ent, learned
counsel for th e ap pellant relied on the j udgm ent of
the Hon'b le Sup reme Court in:-
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1. (2011) 2 SCC (Cri) in the case of
M.Mohan vs. State represented by
Deputy S uperintend ent of police;
2. (2011) 2 SCC (Cri) 465 in th e cas e of
S.S.Chheena vs. Vij ay Kum ar Mahajan
& another;
3. AIR 2020 SC 4714 in the case of
Gurch aran Singh vs. State of Punjab;
4. (2014) 6 SCC (Cri) 786 in th e cas e of
Joydeb Patra and others;
5. 2022 Live Law (SC ) 169 in the case of
Satye Singh & another vs . State of
Uttarakhand .
11. Ag ainst this le arned High Cou rt
Government Pleader arg ued that th e learned
Sessions Judge has taken in to consid eration th e
evid ence of p rosecutio n w itnesses h as righ tly
convicted th e ac cused ; all witn esses have supported
the prosecution c ase and proved charg e levelled
ag ainst the accu sed . There is material evidence to
show th at the ap pellant w ho is husb and of th e
deceas ed and w ithout any job was demanding money
and ill-treating his wife who is a teach er and stating
that she should go and d ie, though th e m arriag e
took plac e in th e year 2005 itself, but the evid ence
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of th e mother, brother and other relatives of th e
deceas ed show s that th e deceased was sub jected ill-
treatmen t and harassmen t. She was treated with
cruelty and bec ause of such cru elty, which has
driven her to commit suicid e. Therefo re, th e
ing redien ts of Section 498A an d 306 of IPC are
attracted . There m ay be some minor contrad ictions
and inconsistenc ies, b ut they are not m ajo r so as to
bru sh ed aside the entire evidence. Th erefo re, th e
Trial Court after consid ering the material witnesses,
rightly came to conclusion th at prosecution has
proved its case o f cruelty to such an extent to drive
the d eceased to com mit suicid e. Therefore, th e
learn ed High Court Governmen t Pleader pray ed to
dismiss th e ap peal.
12. This b eing th e first app eal, I have
considered th e ju dgment and also re-appreciated th e
evid ence.
13. Learned Sessio ns Judge has raised three
points for consid eration in its jud gmen t.
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14. The first poin t is reg arding the evid en ce
und er Section 498A and second poin t is evid ence
und er Sec tion 30 6 of Ind ian Pen al Cod e.
15. The learned Sessions h as cons idered the
evid ence of PW.1.
16. The learned Ses sions Jud ge has observed
that PW.1 has clearly s tated that accused No.1 ill-
treated the deceased for money and ab used h er
sta ting th at she is not looking g ood and if she dies,
he wou ld g et job. Accus ed No.1 w as not having an y
job and ill-treating h er. T he learn ed Session s Judg e
relied on the evidence of PW.1 wherein she has
sta ted that th e deceased was traditional mind and
even s he was residing s eparately f rom h er in-laws.
17. Learned Sess ions Judge also referred to
the evid ence of PW.2, inquest witn ess and PW.3 sp ot
mahazar w itness. The learned Sessions Judge has
considered th e eviden ce of bro th er of Jyoti, b y name
Raviraj-PW.4 . He has also stated th at accused No.1
ill-treated the deceased and if she dies, h e would g et
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job on compassionate grounds and accused w as
subjecting her to m ental and physical cru elty. PW .4
also advised accused No .1. The learn ed S essions
Jud ge also relied on PW.5-Amb arish who have
ad vised all the accu sed.
18. The learn ed Sessions Judg e has mad e
some research about deceased's "Hep atitis-B"
through "Google Search" and stat ed that th is is n ot
the d isease endang ering the life in all th e cases and
only in case th e liver is comp letely dam aged, then
only it may be fatal. Therefore, disb elieved th e
version of the defenc e case and relying on th e
Section 106 of Ind ian Evidence Act st ating th at
accused h ave not g iven any exp lanation convicted
the accused No.1 and acqu itted accused Nos.2 to 4.
19. I have perus ed the evidence of the
witnesses.
20. PW.1 Channamm a is the moth er of the
deceas ed. In h er evid ence she has stated that th e
parents of app ellant are residing sep arately near th e
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house of the ap p ellant. Sh e also stated th at earlier
the d eceased is working at Mukihal village. Ap pellan t
and herself w ere resid ing there. Then th e d eceased
got transferred to the village of the accused at his
instance. She has further stated th at h er d aughter
informed PW.1 th at th e appellant was ill-treating her
for bringing money. She has further stated that sh e
came to know about death of her d aug hter by h er
son. Hen ce, lodg ed complain t as per Ex.P1.
21. Of course in h er evid ence she has not
given the partic ulars and nature of ill-treatm ent.
Simp ly she h as stated that accused No .1 w as
prevailing her bring money from her parents hous e.
The learn ed cou nsel arg ued that when the d eceased
herself was earn ing money, th ere is no necessity for
accused /app ellant to direc t her to bring money from
her parents house. Ex.P1 the written complain t
lod ged befo re the police wh ich is at Ex.P1. There is
no mention that the appellant w as insisting her to
bring mon ey from her p aren ts. On the o th er hand,
alleg ations are again st the other persons which are
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disbelieved. There is no particu lars as to when sh e
informed her p arents and when panchayat was held
ad vising th e acc used, is not forthcoming. Admitted ly,
the marriage took place in the year 2005 and th ey
have got two ch ildren . She h as stated th at
Sharanab asappa and Ambrishapp a have ad vised th e
app ellant not to ill-treat the deceased for mon ey.
But there are no p articu lars, as to when th is alleged
panch ayat was h eld. In h er cross-examination PW .1
has ad mitted that her d aug hter h as not written any
letter to her no r she used to call her. On the other
hand, she herself used to call her, b ut the d eceased
used to tell her that she is living happ ily which is
evid ent from Para No .16 of the cross-exam ination.
She has also admitted that the said deceased w as
suffering from Hepatitis-B diseas e and she h as taken
treatmen t in th e hospital. She h as also admitted that
no such earlier c omp laint w as filed against ap p ellant
abo ut any ill-treatment. So, w hatever evidence is
given by h er before the Cou rt are all an
imp rovement an d an exag g erated version. It is only
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gen eral and vague evidence, wh ich she has ad mitted
in her cross-examination. It is also adm itted that on
08.11.2013 wh en her son Sharanabasap p a called h er
over a phone, the dec eased told that she has not
gone to school, as she has facing som e dif ficulties in
the sto mach and called h im. So, th ere is nothing
abo ut any ill-treatm ent and ab using word s stated to
have b een used by the accused on the s aid d ay or
prio r to it. Wh atever evidence sh e h as given b efo re
the Court is not at all corroborated and supported b y
any of th e witnes ses.
22. PW.2 - Bhimap pa witn ess for inq uest
panch anama and he has stated that there w as no
injuries on th e b ody of the d eceased. So , there is no
question of p hysical assau lt b y the app ellant or b y
any other person s.
23. PW.3 - Sad ashiv is a witn ess for inq uest
panch anama and also witness for seizer of cloths of
the dec eased.
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24. PW.4 - Raviraj is the brother of the
deceas ed. He h as stated that when th e deceased w as
married to app ellan t, sh e w as not working. B ut,
subsequently sh e had go t job. The appellant thinking
that if sh e dies , he will get the job and started
giving physical and m ental ill-treatm ent to h er. S o,
what is th e ill- treatment is also not stated a nd no
particulars are stated. One sen tence th at physical
and mental cru elty w as caused, is not sufficient
proving the cru elty. When it w as caused, how it was
caus ed, what are the particulars and wh at is its
natu re, nothing is stated. Then he stated about
calling d eceased on 08.11.2013 at abou t 09.30 to
10.00 p.m. Th e deceas ed who h as given complian t
ag ainst his mother-in-law and h er husb and. This is
not stated by PW.1. It appears that this is an
imp rovement in evid ence. Even the deceas ed told
that accused No.3 abus ed her, b ut at that time sh e
was not in a state of comm itting suicid e on th at d ay.
Exam inatio n-in-chief d oes not show any n atu re of
cruelty. He gives a n ew version that s he had
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consumed poison without her knowled ge, which is
not at all pros ecution c ase or there is any material
on record. His evid ence is general and vag ue one. He
has stated that a panchayat was h eld in th e year
2008 and they ad vised the app ellant to look after
the d eceased pro perly. Th e in cid ent h as taken p lace
in the year 201 3. So, h is evidence is also g eneral
and vag ue.
25. PW.5 - Ambarish is a person who
acco mpanied PW.1 and her broth ers to B agewadi and
ad vised app ellant not to ill- treat the d eceased . He
has not stated what is th e ill-treatm ent and natu re
of ill-treatmen t nor stated that th ere w as a demand
by th em for money or they are abusing her that sh e
is not looking good and she should go and d ie.
Nothing is stated by him. In examin ation-in-chief he
has stated about going to Bagew adi and ad vising th e
app ellant. Offcourse no p articulars are stated when
they have gon e. He is not ab le to say w here is th e
house of this app ellant situated at Bagew adi or in
which lane its s ituated . Even he can not say wh ere is
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the house of appellant situ ated at Minajag i,
Muddeb ihal or Bag ewadi. So, h is evidenc e is also
gen eral and vag u e one.
26. PW.6 - Gurap pa anoth er witness who
alleg edly participated in the said Panchayat given a
new statement stating that the accused were not
giving food to the d eceased and t hey were snatching
her entire s alary. So, th is eviden ce is totally
imp rovement and it is not at all s tated by an y of th e
witnesses. He also goes to the extent of stating that
the ac cu sed h ave mu rd ered the deceased. This is
totally a new theory stated by him. He h as ad mitted
that he h as not informed the police reg arding th e
Panch ayat taken place ad vising the accused.
Therefo re, his evid ence is also not help fu l to th e
prosec ution in an y w ay.
27. PW.7 - Iramm a is stated to be a residen t
of Bag ew adi an d neighboure r of the hou se of th e
accused . She has not supp orted the prosecution
case. She was t reated as hostile and cross-examined
at leng th, b ut n othing helpful to the p rosecutio n is
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elicited in her cross-exam ination . On the other hand,
she has stated th at sh e has not given statement
before the police as per E x.P.6 .
28. PW.8 - D r. Shivan agoud a th e Medical
Officer, who has conduc ted the postmortem and he
has mentioned the in juries in his exam inatio n as
contus ion abrasion in ju ry over the lateral sid e of th e
neck, m easuring 02 cm, Ho rizantaly and 0.5 cm.,
vertic ally on let sid e, 5 cms, from mid line o f the
neck and 3 cm s, above c lavicle bone. The above said
injury is an timorteum in natu re. He has also clearly
sta ted in his examin ation-in-chief that he did not
notice anything that su ggested forcible
ad minis tration of the poison to the deceased.
Therefo re, the evid ence of th e p rosecu tion in this
reg ard ap pears to be an exaggerated version .
29. PW.9 - Neelam ma, Women Police
Cons table, who h as taken the custody of th e dead
body and hand ed over the s ame to the family
members of the deceased.
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30. PW.10 - Malakap pa, Police Sub Insp ector,
who has received the comp laint, registered the cas e,
condu cted the in quest p anchanama as per Ex.P.2 and
handed-over the dead body. He has recorded th e
sta tement of the w itnesses, conduc ted sp ot
panch anama as p er Ex.P.3, arrested the accused,
prod uced before the Court and send the articles to
the FS L. After receiving the p ostmortem report, he
has filed the charg e sheet against th e accused . In
the c ross-examin ation he h as a dmitted that he has
not collected the docum ents reg arding house own er
no r he has exam ined the owners of house w here th e
deceas ed and ap pellan t were resid ing earlier at
Mukyal, Minaj agi, Mudd ebihal and Shirur villag e.
Even he has not recorded the statement of th e
neig hbourer of hous e of the ap pellant in those
villages nor h as recorded th e statement of th e
colleag ues or co-teach ers o f the d eceased . So, it
show s that the Investig ating Officer h as not p roperly
verified and only on exam ining th e clos e relatives
whose statem ents are general and vague, filed th e
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charg e s heet. He has also stated that du ring th e
investig ation he did not no tice that the deceased w as
forcibly ad min istered poison. There were o missions
elicited from the evid ence of PW.4, wh en compared
with Investigating Offic er. H e h as stated that PW.6
has given statement as per Ex.D.1 and PW.7 has
sta ted as p er Ex.P.6. So , evid ence of Investig ating
Officer also indicates that he h as not p roperly
investig ated th e case.
31. Offcou rse, life is lost, bu t that does not
mean that in the ab sence of any explanation of
app ellant - the husb and of deceased, th e Cou rt
canno t hold her husb and is respo nsible for th e
deceas ed for co mmitting the s uic ide. Because th e
alleg ation of ill-treatment, cruelty and harassment
by accused Nos.2 to 4 is totally disbelieved by th e
Sessions Judg e. Reg arding the nature of ill-
treatmen t, there is a material contradict ions in the
evid ence of the mother and brother of the d eceased
and the p anch as, who h ave s tated to h ave been
ad vised the appellant and his fam ily memb ers. No
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particulars in respect of ill-treatm ent or cru elty are
forthcoming . The evid ence is only gen eral and
vagu e.
32. The evid ence without being any particu lars
as to w hen th e in cid ent has taken place, w here it
has taken p lac e, how it has taken p lace, w hat are
the particulars or any insta nce of cruelty and the
natu re of cruelty, nothing are stated . A simply on e
word as the deceased w as treated as cruelty and ill-
treated is not s ufficient to attrac t the ingred ients of
Section 498 (A) of IPC. B ecause what is the natu re
of harassment is to b e stated . Th at harassment or
cruelty m ust b e such an extent that it s hould coerce
any wom an to m eet an u nlawfu l demand o r prop erty
or d rive h er to c ommit s uicide. T here m ust be som e
positive eviden ce to show th e ab atemen t of
commiss ion of suicide and there has to be clear
evid ence in th is regard as to b e n atu re of cruelty or
particulars to be stated . Offcou rse, the matrimonial
dispu tes and q uarrels took place in the four corners
of the house. It is very d ifficult to get the d irect
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evid ence. But at least, the n eighbourer of th e
accused s hou ld have b een examin ed or th e p erso ns
where she h ad served h er colleag ue s hould ha ve
been examin ed about alleg ations of c ruelty by
accused No.1 . But th e Investigating Officer h as not
recorded statements of any of these persons. The
suggestion that if the deceased d ies, her husband
will get a job on compassionate ground s canno t b e
believed. Because, if she is alive at least she will g et
salary and bring money. Th ere is no guarantee th at
a p erson g ets c omp assion ate app ointmen t, as it is
not a matter of righ t. It is not like a su cc ession or
inherit ance.
33. The relatives of the d eceased given
evid ence b y chan ging th eir version. Once they stated
that app ellant was abused stating that sh e w as not
cooking good. Accused are asking her to bring
money f rom her p arents' house. Again they changed
their version an d stated that they were snatching
her en tire salary and not p rovid ed anything to h er.
So, there is no consistency about the nature of
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cruelty. On the other hand , th ere is a material
contrad iction an d inconsistency about the very
theory of cruelty. No p articulars of tim e, month or
year or an y festival or wh en such advises are given
or p anch ayat was held is s tated. Offcourse, after th e
marriage, the d eceased lived more th an s even years
and the presum ption und er Ind ian Evid ence Act is
also not availab le to the pro secution .
34. In order to attract the ing redients of 498
(A) of IPC, th e prosecution has to prove the cru elty
caus ed either b y hu sb and o r relatives of husban d.
The c ruelties are two typ es (i) t mental and (ii)
physical. In ord er to appreciate it is necessary to
refer Section 498A and its exp lanation, w hich reads
under:-
"498A. Husband or relative of husband
of a woman subjectin g her to cruelty.--
Whoever, b eing th e husband or th e
relativ e of the hu sb and of a woman,
subj ects such woman to cruelty sh all be
punished with imprisonment for a term
which may extend to three years and
shall also be liable to fi ne.
23
Explanation.--For th e purpose of this
section, "cruel ty" means--
(a) any wilful conduc t which is of such a
natu re as is likely to drive the woman to
commit suicide or to cause grav e injury
or d anger to life, limb or health
(whether men tal or physical) of the
woman; or
(b ) harassment of the woman where
such haras sment is with a view to
coercing her or any person related to
her to m eet any unlawful d emand for
any property or valu able sec urity or is
on account of failure by her or an y
person related to her to meet such
dem and ."
35. The object of Section 498(A) whoever,
being th e husb and o r the relative of the h usb and of
a wo man, subjects such woman to cru elty sh all b e
punished. Here in this case, there is no evid ence
with reg ard to physical cruelty. On the other hand, it
is alleged that she was o nly mental cruelty.
36. Section 306 of IPC read s as u nder:-
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"306. Ab etm ent of suicide.- if any
person com mits suicide, whoever abets
the com missio n of su ch suicide, shall be
punished with imprisonmen t of either
description for a term which m ay ext end
to then years, and shall also b e liabl e to
fine."
37. The Hon'b le Supreme Co urt in the case of
M. Mohan vs. State Represented by the D eputy
Superintendent of Po lice, rep orted in 2011 (2)
SCC (Crl) 1, dis cussed th e Sections 306 and 107 of
IPC in Para Nos.44 and 45 held as und er:-
"44. Abetment involves a m ental proces s
of in stig ating a person or intentionally
aiding a person in d oing of a thin g.
Without a positive act on the p art of the
accused to instigate or aid in committing
suicide, conviction cannot be sustain ed.
45. The intentio n of the Legislature and
the ratio of the cases decided by this
court are clear that in order to convic t a
person und er section 306 IPC th ere has
to b e a clear mens rea to commit th e
offence. It also requires an active act or
25
direct act which led the deceased to
commit suicide seeing no option and this
ac t must have been intend ed to push
the d eceased in to su ch a position th at
he/she committed suicid e."
38. In another decision of the Hon'ble
Suprem e Court in the case of S. S. Chheena vs.
Vijay Kuma r Mahajan and another, reported in
(2011 ) 2 SCC (Crl) 46 5, held at Para Nos.25 to 27
as u nder:-
"25. Abetment involves a m ental proces s
of in stig ating a person or intentionally
aiding a person in d oing of a thin g.
Without a positive act on the p art of the
accused to instigate or aid in committing
suicide, convicti on can not b e sustain ed.
The in tention of th e l egislature and the
ratio of the cases decided b y this Cou rt
is clear th at in ord er to convict a person
und er S ection 30 6 IPC there has to be a
clear mens rea to commit the offence. It
also requires an active act or d irect act
which led th e deceased to commit
suicide seeing no option and that act
mu st hav e b een intended to pu sh the
26
deceased into suc h a position that he
committed suicid e.
26. In the instant case, th e d eceased
was u ndoub tedly hypersensitive to
ordinary petul ance, discord and
differences which h appen in our day-to-
day life. Human sensitivi ty of each
ind ividual differs from the oth er.
Dif ferent people b ehave differently in
the same si tu ation.
27. Wh en we carefully sc rutinize and
critically examine th e facts of this c ase
in the ligh t of th e s ettled legal position
the conclusion b ecomes ob vious th at no
conviction can be leg ally sustained
without any credible evidence or
materi al on record again st th e
app ellant. The o rder of framing a charge
und er section 306 IPC ag ainst the
app ellant is palpably erroneo us and
un su stain able. It would b e trav esty of
justice to compel the appellant to f ace a
crimin al trial without any credible
materi al wh atso ever. Conseq uentl y, the
ord er of framin g ch arge und er section
306 IPC ag ainst the ap pellan t is q uas hed
27
and all proceedings pending against him
are also set aside."
39. In another dec ision, the Hon'b le Supreme
Court in the case of Gur charan Singh vs. State of
Punjab rep orted in AIR 2020 SC 4714 h as held at
Para No.15 to 19 as und er:-
"15. As in all crim es, men s rea has to b e
es tablished . To prove the offence of
ab etm ent, as specified under Sec 107 of
the IPC , the state of mind to commit a
particular crime must be visible, to
determine th e culpab ility. In order to
prov e m ens rea, there has to be
somethi ng on record to establish or
show that the ap pellant herein had a
guilty mind and in furtherance of th at
state of mind, abetted the sui cid e of the
deceased. The ingred ient of mens rea
canno t be assum ed to be ostensibly
present b ut h as to be visible and
conspicuous. However, what transpires
in the p resent matter is that b oth the
Trial Cou rt as well as the High Cou rt
never examined whether appellant had
the mens rea for the crim e, h e i s held to
28
have committed. The conviction of
Appellant by the Trial Court as well as
the High Co urt on the theory that the
woman with two young kids might have
committed s uicide, possib ly because of
the h arassm ent faced by her in the
matrimoni al house, is not at all borne
out by th e evidence in the cas e.
Tes timonies of the PWs do no t show th at
the wife was unh appy b ecau se of th e
app ellant and she w as forced to take
such a step on his account.
16. The necessary ing redients for th e
offence und er section 306 IPC was
considered in the c ase SS Chheen a Vs .
Vijay Kumar Mahaj an1 w here explai ning
the conc ept of abetm ent, J ustice Dalveer
Bhand ari wrote as under:-
"25. Abetment involves a mental
process of instigating a person or
intentionally aiding a 1 (2010) 12
SCC 190 perso n in doing of a thin g.
Without a positive act on the part
of the acc used to instigate or aid in
committing su icid e, conviction
canno t be sustained. The in tention
29
of the legisl ature and the ratio of
the cases decided by this Cou rt is
clear that in order to convict a
person u nder Section 306 IPC there
has to be a clear mens rea to
commit the off ence. It al so
requires an activ e act or d irect act
which led the deceased to co mmit
suicide seei ng no option and that
act m ust have been intended to
push the deceased into su ch a
position that he com mitted
suicide."
17. While d ealing with a case of
ab etm ent of su icid e in A malendu Pal
alias Jhantu vs. State of W est Bengal2 ,
Dr. Justice M .K. Sharma wri ting for the
Division Ben ch explain ed the parameters
of Sectio n 306 IPC in th e following
terms:
"12. Thus, this Co urt has
consisten tly taken th e view that
before holdin g an accus ed guilty of
an offence u nder Sectio n 306 IPC,
the court mu st s crupulously examine
the facts and circumstances of the
30
case and also asses s the evidence
add uced before it in ord er to find
out w hether the c ruelty and
harass ment meted out to the victim
had lef t the victi m with no oth er
altern ative b ut to put an end to h er
life. It is also to be b orne in mind
that in cases of alleged ab etm ent of
suicide there must b e proo f of direct
or indirect acts of incit eme nt to the
commission o f suicide. Merely o n the
alleg ation of harassment wi th out
there b eing any positiv e action
proxi mate to th e 2 (2010) 1 SCC
707 time of oc currence on th e part
of the accu sed whic h led or
compelled the person to com mit
suicide, co nviction in term s of
Section 306 IPC is not sustainabl e.
13. In order to bring a c ase within
the pu rview of Section 306 IPC th ere
mu st b e a case of suicide and in the
commission of the said offen ce, the
person who is said to have abetted
the commission of suicid e must h ave
play ed an active role b y an ac t of
instigation or by doing c ertain act to
facilitate th e commission of suic ide.
31
Therefo re, th e act of abetment by
the person c harged with the said
offence must be proved and
establis hed by the p rosecution
before h e co uld be convicted un der
Section 306 IPC .
18. In th e case Mangat Ram Vs . State of
Hary ana3, which again was a case of
wife's unnatu ral d eath, speaking for the
Division Bench, Justice K.S.P.
Radhak rishnanan rightly observed as
und er:-
"24. We find it difficult to
comprehend the reasoni ng of the
High Co urt that "no prud ent man is
to commit suicide unless ab etted to
do so". A wo man may attempt to
commit suicid e due to vario us
reasons, such as, d epression,
financial difficulties , disap pointmen
t in love, tired of domestic wo rries,
acute or ch ronic ailmen ts and so on
and n eed not be due to abetm ent.
The reasonin g o f th e High Cou rt
that no p rudent m an will co mmit
suicide unless abetted to do so by
someon e else, is a perv erse
reasoni ng."
32
19. Proceeding with th e abov e
und erstandin g of the l aw and applying
the ratios to the f acts in the present
case, wh at i s apparent is that no overt
ac t or illegal om ission is seen from th e
app ellant's sid e, in taking du e care of
his deceased wife. The evid ence also
does not indicate tha t the d eceased
faced persisten t harassmen t from her
hu sb and. Nothing to this effect is
testified b y the parents or any of the
other pros ecu tion witnesses. The Trial
Court and the Hi gh Cou rt speculated on
the unnatural d eath and without any
evid ence conclud ed only th rough
conjectu res, that th e ap pellant is guilty
of ab etting the suicide of hi s wife."
40. The Hon 'ble Sup reme Cou rt in the case
Joydeb Patra and Others vs. State of West
Be ngal, reported in (2014 ) 6 SCC ( Crl) 786, has
held at Para No.10 and 11 as under:-
"10. We are afrai d, we canno t acc ept this
submi ssion of Mr. Ghosh. This Court has
repeated ly h eld that th e bu rden to p rove
the guilt of th e accused beyo nd
reasonab le doub t is on t he p rosecution
33
and it is only when this burd en is
discharged that the accused could prove
any fact within his special kn owledge
und er S ectio n 106 of th e Indian Evidence
Act to estab lish that he w as not g uilty. In
Sucha Singh Vs. State of Pu njab (2001) 4
SCC 375, this Cou rt held:
"We pointed out that Section 106 of the
Evidenc e Act is not intended to relieve
the prosecution of its b urd en to prove the
guilt of the acc used beyond reasonab le
doubt, bu t the section would apply to
cases wh ere pros ecu tion has succeed ed in
provi ng facts for which a reasonab le
inferen ce can be drawn regarding the
existenc e of certai n other facts, unless
the accused by virtue of special
knowledg e regard ing such facts failed to
offer any explan ation whi ch might d rive
the court to draw a dif ferent inf erence."
Similarly, in Vikramjit Singh Vs. State of
Pun jab (2006) 12 SCC 306, this Court
reiterated :
"Section 106 of the Indian Evid ence Act
does not reliev e the prosecutio n to prove
its case b eyond all reason able doub t.
Only wh en the prosecution case has been
prov ed the bu rd en in regard to such facts
34
which w as within the special know ledg e of
the accused may be shifted to the
accused fo r explaining the s ame. Of
course, th ere are certain exceptions to
the said rule, e.g ., where burden of proof
may be imposed upon the accus ed by
reason of a statute."
11. As t he pros ecu tion has not b een able
to d ischarge its b urden of establishing
beyo nd reason able d oubt th at the
deceas ed died d ue to poisonin g, in our
view, th e trial c ourt and the High Court
could not have held the appellants guilty
ju st bec ause th e ap pellan ts hav e not
been able to explain u nder what
circums tances the deceas ed died .
12. We accord ingly allow this appeal and
set asid e the im pugned judgment of the
High Cou rt as well as the j udg ment of the
Trial Court and direct th at the b ail b onds
of th e ap pellan ts will stand discharged ."
41. The Hon'b le Supreme Cou rt in the cas e of
Satye Singh and anothe r vs. State of
Uttarak hand reported in 2022 Live Law (SC) 169 ,
discussed Section 106 of the Indian Evid ence Act, at
Para No.15 h eld as under:-
35
"15. Applying the said principles to the facts
of the p resent case, the Court is of the
opinion th at th e prosec ution had miserably
failed to prove th e entire ch ain of
circums tances which would unerrin gly
conclude that all eged act w as co mmitted by
the ac cu sed only and none else. Reliance
placed by learned advocate Mr. Mish ra for
the State on Section 106 of th e Evidence
Act is also misplac ed, inasmuch as Section
106 is not intended to relieve the
prosec ution from dischargin g its d uty to
prov e th e guilt of the acc used. In Shamb u
Nath Mehra vs. State of Ajm er , AIR (1956)
SC 404, this cou rt h ad aptly explained the
scope of Sectio n 106 of th e Evidenc e Act in
crimin al tri al. It was held in para 9:
"9. This lays down the general rule
that in a crimin al case the bu rden
of p roof is on th e p rosecu tion and
Section 106 is certainly not
intended to r elieve it of th at d uty.
On the contrary, it is d esig ned to
meet certain exceptional c ases in
which it would be impossible, or at
any rate disproportionately
difficult, for th e prosecution to
36
establish facts which are
"especially" within the knowledge
of th e ac cu sed and which he co uld
prove without difficulty or
incon venience. The word
"especially" stresses th at. It means
facts that are pre-emin ently or
exception ally within his knowledg e.
If the sectio n were to be
interpreted otherwise, it would lead
to the very startling conclusion
that in a murd er case the burden
lies o n the accu sed to p rove that
he did not co mmit the m urder
bec ause who could know better
than he whether he did or d id not.
It is evident that that cannot be
the intentio n an d th e Priv y Coun cil
has twice refused to construe th is
section, as reproduced in certain
other Acts outside India, to mean
that th e bu rden lies on an accused
person to show that he did not
commit the crim e for which he is
tried . These cases are Attygalle v.
Emperor [AIR 1936 PC 169] and
Seneviratn e v. R. [(1936) 3 All ER
36, 49]"
37
42. So, in the light of thes e princip les and the
Section of Ind ian Penal Cod e, if the evid ence placed
before the Court is con sid ered, as ad mittedly the
learn ed Sessions Court fou nd no evid enc e ab out th e
cruelty or ill- treatment by the f amily m embers of th e
app ellant and it is also evid ent that ap pellant and
deceas ed was resid ing separately and th ey are
having child ren and th e deceased was working in
different p laces, there is no m aterial to s how any
physical cruelty. Regarding men tal cruelt y, excep t
the vag ue and general evid ence of mother and
broth er of th e deceased, there is no evidence to
corroborate with the charg e. The evid ence of th e
witnesses who are stated to h ave b een advised th e
app ellant a re totally in consisten ce. Their evid ence is
also vague and gen eral. In th e absence of any
positive eviden ce, the learned Session s Cou rt
wro ngly placed the burd en on the app ellant und er
Section 106 of the Indian E vidence Act, when th e
prosec ution failed to p rove in itial burd en casted
upon it.
38
43. It is settled principle of law that the
prosec ution has to prove its case beyond all
reasonab le dou bt. Th ere is a lot of difference
betw een m ay b e true and must be tru e. If from the
evid ence of p rosecution two views are poss ible, then
view favou rable to the p rosecution, will have to b e
accep ted by the Court. The learned Sessions Judg e
was c arried away by th e definition and m eaning of
Hep atitis-B and h eld th at it is not the disease so as
to drive the d eceased to commit suicid e. Fo r wh at
purpose she h as comm itted suicid e is not
forthcoming . Now a days the su icid e cas es have
increased for f limsy or silly reasons. On e cannot be
read the m ind of a p erson. Suicide as stated by th e
Hon'b le S up reme Court is killing himself. Day in and
day out we read in th e newsp ap ers and sea th e
television suicid e by persons for reasons b eyond
im agination of any once suicide tendency has
increased in the present generation.
44. Simp ly becaus e the husb and was in a
house and his wife comm itted suicide, husband
39
canno t be co nvic ted in th e absence of any p ositive,
clear, cogent and convincing eviden ce. There m us t
be a corrob orative charg e leveled ag ainst th e
app ellant by the p rosecution. Therefore, th e
prosec ution has failed to p rove ingredients of
Section 498(A) of IPC o r ingredien ts of ab etm ent ,
the questio n of convicting th e appellant fo r th e
offence p unishab le under Section 306 or 498A of IPC
does not aris e at all.
45. The learned Sessions Judge h as not
prop erly appreciated the evidence on record and
carried aw ay by the fact of suicide and shifted th e
burden on the ap pellan t, which is illegal and n eeds
to be set-as ide. Keeping in mind the settled
princip les regard ing ap preciation of evidence in such
crimin al cases, I find th at the p rosecutio n has failed
to prove th e guilt of the accused beyo nd all
reasonab le d oub t and the appellan t is entitled th e
ben efit of doubt. Accord ingly, I proceed to p ass the
follow ing:
40
O R D E R
I. The app eal is allowed . II. The judgment o f con viction and order o f sentence in Sess ions Case No.117/2015 dated 20.08.2016 passed by the learn ed Princip al Sessions Judg e, at Vijayap ur ag ainst the ap p ellant convic ting him fo r the offences p unishable u nder Sec tions 306 and 498A of IPC is hereby set-aside. III. The app ellant is acquitted for the offences punishab le under Sections 306 an d 498A of IPC .
IV. The bail bonds of ap pellan t if any are cancelled .
V. The fine amount if any d eposited b y the app ellant shall be refund ed to him.
S d/-
JUDG E sd u/K JJ