Mallikarjun S/O Rachappa Patil ... vs The State Of Karnataka Through ...
2022 Latest Caselaw 3064 Kant

                           1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL NO.200081/2015


BETWEEN

1. MALLIKARJUN S/O RACHAPPA PATIL
AGE: 60 YEARS, OCC:RTD.SENIOR
HEALTH ASSISTANT, C.H.C HEBBAL,
R/O NO.22, LIG, 2ND PHASE,
ADARSH NAGAR, KALABURAGI

2 . MANJUNATH S/O MALLIKARJUN PATIL
AGE: 26 YEARS, OCC:ASST.LECTURER
IN H.K.E S, KALABURAGI,
R/O H.NO.22, LIG, 2ND PHASE,
ADARSH NAGAR, KALABURAGI

3. SHILPA D/O SURESH GUDIGAR
AGE:27 YEARS, OCC:STAFF NURSE,
C.H.C HEBBAL, R/O SIRASI, DIST.KARWAR
                                        ...APPELLANTS

(BY SRI SANJAY KULKARNI, ADVOCATE)

AND

THE STATE OF KARNATAKA
THROUGH MADBOOL POLICE
STATION, KALABURAGI
REPRESENTED BY ITS STATE
                                    2




PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENCH AT GULBARGA
                                                    ...RESPONDENT

(BY SRI GURURAJ V. HASILKAR, HCGP)

    THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING
TO CALL FOR THE RECORDS IN SESSIONS CASE
NO.127/2012 ON THE FILE OF THE PRINCIPAL SESSIONS
JUDGE AT KALABURAGI, PERUSE THE SAME, ALLOW THIS
APPEAL AND SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE INCLUDING FINE AMOUNT
DATED 14.07.2015 AND SET THE APPELLANTS/ACCUSED
AT LIBERTY IN THE INTEREST OF JUSTICE.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal is by the accused persons, who have

been convicted for the offences punishable under Sections

506 and 306 read with Section 34 of the Indian Penal

Code, 1860 (for short 'IPC') and sentenced as under:

"Accused No.1 - Mallikarjun who has been convicted for d the offence under Section 506 of Indian Penal Code is sentenced to undergo imprisonment for a period of three (03) months and shall pay fine of Rs.1,000/- (Rs. One thousand only), in-default of payment of fine, the accused

No.1 shall under go further imprisonment for a period of one (01) month.

Further accused No. 1 Mallikarjun who has been convicted for the offence under Section 306 of Indian Penal Code is sentenced to undergo imprisonment for a period of 9 years (02) years and shall pay fine of Rs.1,500/- (Rs. One thousand five hundred only), in-default of payment of fine. the accused No. 1 shall under go further imprisonment for a period of six (06) months Accused No.2 and 3 viz. Manjunath and Shilpa who have been convicted for the offence under Section 506 of Indian Penal Code is sentenced to undergo imprisonment for a period of three (03) months and shall pay fine of Rs.1,000/- (Rs. One thousand only) each, in-default of payment of fine, the accused No.2 and 3 shall under go further imprisonment for a period of one (01) month.

Further accused No.2 and 3 viz. Manjunath and Shilpa who have been convicted for the offence under Section 306 of Indian Penal Code are sentenced to undergo imprisonment for a period of 2 years (02) years and they shall pay tine of Rs.1,500/- (Rs. One thousand five hundred only) each, in- default of payment of tine, the accused No. 2 and 3 shall undergo further imprisonment for a period of six (06) months."

2. Brief facts of the case are as under:

Shakuntala W/o. Vijaykumar lodged a complaint with

Madbool police station, Kalaburagi district contending that

her marriage got solemnized with Vijaykumar about 20 to

25 years earlier from the date of lodging of the complaint

and out of the wedlock, they have three children.

Vijaykumar was working as a Second Division Assistant

(for short 'SDA') in Government Hospital, Hebbal, who

used to travel from Kalaburagi everyday on work at

Hebbal. On 03.08.2011 at about 6.00 a.m. Vijaykumar left

his house and his son Vinaykumar had been to tuition

classes, at about 7.00 a.m. when she was working in the

house, one Manjunath, who was also working in the

Government Hospital at Hebbal came and questioned her

about the whereabouts of her husband. She has replied

that her husband had been to Hebbal for attending his

duty. At that juncture, Manjunath and Mallikarjun

(accused Nos.1 and 2) abused Vijaykumar in filthy

language and told that they would take away the life of

Vijaykumar on the pretext that he has not passed bill of a

nurse by name Shilpa of their hospital. When the said

altercation was going on, son of the complainant

Vinaykumar, who came to the house questioned accused

Nos.1 and 2 as to why they are abusing his father. At that

juncture, the accused persons assaulted the son of the

complainant. In turn, her son also assaulted accused

Nos.1 and 2 with hands. Accused persons went away to

Chowk police station and lodged a complaint against

Vijaykumar and Vinaykumar. Subsequent thereto, accused

persons threatened the husband of the complainant over

phone that they will take away the life of the son of the

complainant if the salary bill of accused No.3 - Shilpa is

not prepared by him. The incident was brought to the

notice of Vijaykumar, but, he consoled the complainant.

When the matter stood thus, as usual on 09.09.2011

Vijaykumar had been to attend the duty at Hebbal with his

lunch box, but he did not return till night and therefore,

the complainant contacted her husband over mobile

phone. Vijaykumar replied stating that he is having

dinner. On 10.09.2011 at about 9.00 a.m. the son-in-law

of the complainant by name Shivakumar came to the

house and informed the complainant that one

Veerabhadrayya Swami telephoned him stating that

Vijaykumar has committed suicide by hanging himself to

the sealing fan in the hospital. Immediately, the

complainant and her son Vinaykumar went to the spot and

saw the dead body of Viaykumar, which was in hanging

position. It is also alleged in the complaint that there was

a death note left by Vijaykumar stating that accused Nos.1

to 3 are responsible for his death and death note was in

his shirt packet. Accused Nos.1 to 3 by misusing their

power abused the complainant and also gave life threat

that they would take away the life of Vijaykumar and

thereby got frustrated and thus committed suicide and

therefore, accused Nos.1 to 3 have abetted Vijaykumar to

commit suicide. Based on the complaint, Madbool police

registered a case in Crime No.94/2011 and after thorough

investigation filed charge sheet against the accused

persons.

3. Thereafter, the presence of the accused was

secured before the trial Court and charges were framed.

The accused pleaded not guilty and therefore, trial was

held.

4. In order to prove the case of the prosecution,

in all twenty one witnesses have been examined as PWs.1

to 21 and the prosecution relied on 25 documentary

evidence, which were exhibited and marked as Exs.P1 to

P25. The clothes found on the dead body of the deceased

were marked as MOs.1 to 4.

5. On conclusion of the prosecution evidence, the

accused statement as contemplated under Section 313 of

Cr.P.C. came to be recorded, wherein, the accused persons

denied all the incriminatory materials that were put to

them. On behalf of the accused, Dr.Ambrish examined as

DW.1 and accused persons also relied on two documentary

evidence, which were marked as Exs.D1 and D2.

6. Thereafter, the learned Trial Judge heard the

parties in detail and after considering the oral and

documentary evidence on record, passed an order of

conviction, convicting the accused persons and sentenced

them as referred to supra. Being aggrieved by the same,

accused/appellants preferred this appeal.

7. In the appeal, following grounds have been

raised.

x The order of conviction and sentence passed by the Learned Sessions Judge is opposed to law facts and probabilities of the case.

x That the learned Sessions judge has not properly appreciated the evidence on record and thereby arrived at wrong conclusion by convicting the accused persons.

x That the finding of the learned Sessions Judge appearing at para .No.30 & 35 of judgment are against the evidence on record and as such findings of the learned Sessions Judge is not supported by the evidence on record.

x That, the evidence of Pw-I speaks the truth that, it is the deceased family members who were at high hand and

they have assaulted the A-2 Manjunath and in this regard there was a Criminal case has been registered against deceased family i.e as Crime.No.183/2011 and the same is pending before the JMFC Kalburagi as C.C.No.138/2012. Hence it discloses the conduct of the Pw-1. Hence evidence of Pw-1 is not having any value.

x That, the finding of the learned Sessions judge as to accused to threaten the deceased over phone is against the evidence on record and the prosecution has established the case of threatening over phone to deceased by way evidence like phone call details etc.

x That, the prosecution has utterly failed to establish the case against the Accused No.3 i.e Shilpa, because she was nowhere connected to either with respect to the 31- 8-2011 incident or there is no incriminating evidence on record to say that she guilty of offence u/s 306 and 506 of IPC.

x The trial court ought to have considered the fact that, the testimony of PW1,16 and 17 is in general and vague and it is not specific regarding the ill treatment or harassment from the appellants which could have abetted or instigated the deceased to commit the suicide.

x The trial court Ought to have noticed that, the death note of the deceased daes not discloses the fact that there was any kind of ill treatment or harassment from the

appellants/accused for not preparing the salary of A-3 shilpa. Hence relying on the death note and coming to conclusion that there was abetment of suicide.

x The learned Sessions judge ought to have noticed that, the case registered against the deceased and family from the accused is pending and police had filed the charge sheet against the deceased and Pw-1 Vinaykumar. Hence it is proven fact that it is not false case made out against the deceased. Hence committing suicide for false case would not have arisen. Hence the criminal case against the deceased cannot be called as false and for abetment of suicide.

x The trial court has seriously committed an error by not considering the Circumstances and facts of the case regarding conduct of the deceased at his work place with his colleagues and subordinates. Because evidence of the Dw-1 and EX-D-1 & 2 clearly shows that Vijaykumar the deceased is victim of his own conduct and attitude and in this regard there were two memos were issued to the deceased on basis of different complaints at work place and this has been brought to the notice by evidence from defence and same has been stated by the accused No.l in his 313 statement.

x That, though there were two memos issued to deceased by the Administrator of community Health centre, however only the complaint of accused for non payment

salary has been considered as abetment of suicide of deceased. Hence this kind of appreciation of evidence is not sustainable under law.

x That the incident at deceased house and registration of a complaint against the deceased and committing the suicide of deceased, there was huge gap of No, of days. Hence there is no nexus or connection them, hence treating the said incident as route cause for the suicide is wrong conclusion. 22.That, the entire conviction is based on the evidence of Pw-1, Pl6 and Pw-17 and the death note of deceased, however the learned Judge has failed to appreciate evidence on record and came to wrong conclusion of case of abetment of suicide. 23.The trial court ought to have seen that, the witnesses who have supported the case are rivals of accused persons at work place of the accused and they have falsely implicated innocent Appellants/ Accused persons. 24.The Trial Court ought to have noticed that the immediately after the incident it was not informed the police hence this creates that doubt regarding the content of the death note of deceased and Hence prosecution has suppressed the genesis of the crime.

x It is submitted that the evidence of other witnesses is formal in nature as they are investigating officers and the Appellants reserve liberty to address arguments with regard to other evidence at the time of hearing of the appeal.

x The Trial Court ought to have held that the prosecuting agency has suppressed the genesis of the crime that the evidence placed on record is vague and unreliable. In the instant case, there was every possibility of Wrong persons being convicted. As such, ought to have given the benefit of the doubt to all the Appellants herein.

8. Reiterating the above grounds, the learned

counsel for the appellants vehemently contended that

there was a case registered by accused No.1 against the

deceased and his son on 31.08.2011 in Crime

No.183/2011 and as such, being afraid of the

consequences of the said criminal case, the deceased has

committed suicide and therefore, absolutely there is no

guilt on the part of the accused persons.

9. He further contended that the said case was

thoroughly investigated by the Chowk police resulting in

filing of the charge sheet against the deceased and his

son. Since Vijaykumar died, abated charge sheet was filed

against Vinaykumar for the offence under Section 326 of

IPC. He also pointed out that the said case ultimately

ended in conviction and son of the deceased has been

convicted for the offence under Section 326 of IPC and the

appeal preferred by him was partly allowed by confirming

the conviction of the son of the deceased and sentence

was modified.

10. He further pointed out that, it is the deceased

and his son who are aggressive parties are responsible for

the genesis of the crime. He also contended that accused

No.1 being a dutiful citizen, approached the police against

the illegal acts committed by the deceased and his son and

that should not be construed as an abetment for the

suicidal death of Vijaykumar and sought for allowing the

appeal.

11. Per contra, learned High Court Government

pleader supported the impugned judgment by contending

that the learned Sessions Judge has taken note of the

death note left by the deceased and the same stood

proved beyond reasonable doubt and therefore, there was

sufficient abetment on the part of the accused persons

resulting in suicidal death deceased and sought for

dismissal of the petition.

12. In view of the rival contentions of the parties,

the following points would arise for consideration:

1. Whether the prosecution has established that the accused persons/appellants are responsible for the death of Vijaykumar so as to attract the offences punishable under Sections 306 and 506 read with Section 34 of IPC?

2. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?

3. What order?

13. In Ex.P16, there is a specific allegation that the

deceased was working as a SDA in Government Hospital at

Hebbal. It is a fact that accused No.3 was working as a

staff nurse in Community Health Centre at Hebbal, where

other accused persons were also working. The complaint

averments further reveal that on 31.08.2011 at about 6.00

a.m. when the deceased had left for her work as usual and

son of the complainant had been to tuition classes and at

that juncture, accused No.2 came to the house and asked

the whereabouts of Vijaykumar to the complainant. It is

also contended that accused Nos.1 and 2 gave life threat

as he has not prepared the salary bill of accused No.3. At

that juncture, the son of the complainant return from

tuition classes and questioned accused Nos.1 and 2 as to

why they are scolding his father, at that juncture

altercation took place and even according to the complaint

averments, Vinaykumar assaulted accused No.2 with

hands. When the matter stood thus, on 09.09.2011 at

about 5.00 p.m., the deceased left the house for attending

his duty and in the night hours, the complainant called her

husband over mobile phone and he replied that he is

having dinner. On 10.09.2011 at about 9.00 a.m. she

came to know from her son-in-law- Shivakumar that as

per the information received by him from Veerbhadrayya

Swami, Vijaykumar committed suicide by hanging in the

hospital. The complainant and her son went to the

hospital and saw the dead body in the hanging position.

Vijaykumar had hanged himself to the ceiling fan in the

hospital. Immediately, complaint was lodged and police

registered the case on 10.09.2011 in Crime No.94/2011.

It is contended that there was a death note in the shirt

packet of the deceased, which was recovered by the

police. The death note is marked as Ex.P1.

14. PW.1-Vinaykumar is the son of the

complainant. He deposed before the Court that deceased

is his father and he was working in Community Health

Centre, Hebbal as SDA. He also deposed about the

incident that occurred on 31.08.2011. He further deposed

that on 09.09.2011 at about 4.30 to 5.00 p.m. deceased

had been to duty and at about 9.00 p.m., on the same

day, they had called the deceased and spoke to him. He

also deposed about the information received on

10.09.2011 at 9.00 a.m. about the suicide of his father

and specifically deposed that death note was recovered

from the shirt packet of the deceased. He also deposed

about the case filed against him by accused Nos.1 and 2 in

Chowk police station. He further deposed that there was a

life threat given by the accused, which has resulted in his

father committing suicide. He indented the death note as

Ex.P1 and signature as Ex.P1(a). He identified the clothes

worn by the deceased as MOs.1 to 3. He also identified

the plastic rope with which deceased hung himself as

MO.4.

15. In his cross examination, it is elicited that in

the year 2011, he was studying in Diploma. He admits

that he has been appointed in the health department on

the basis of companionate grounds and he is working as

SDA. It is further elicited that on 31.08.2011 a case was

registered against him and his father in Chowk police

station. He pleaded ignorance that on 31.08.2011 there

was general holiday on account of Ganesh festival. He

admits that on 01.09.2011 himself and his father had been

to Chowk police station. He admits that on 01.09.2011

they did not lodge the complaint to Chowk police that

accused persons have visited their house, picked up

quarrel and assaulted by abusing them in filthy language.

It is also elicited that from 31.08.2011 to 09.09.2011

everyday his father has attended the office.

16. He denied the suggestion that his father was a

drunkard and used to harass the staff of the Community

Health Centre in not preparing the salary bills properly. He

denied the suggestion that he received the notice on

05.09.2011 and 08.09.2011 and therefore, being

frustrated about the same, his father committed suicide.

He denied the suggestion that the handwriting in Ex.P1

and signature found in Ex.P1 is not that of his father and

the same is concocted.

17. PWs.2 and 3 are mahazar witnesses to Ex.P4

they did not support the case of the prosecution. PWs.4

and 5 are the mahazar witnesses to Ex.P5 and they also

did not support the case of the prosecution.

18. PW.6 - Shivakumar is the son-in-law of the

complainant. He deposed that on 10.09.2011 at about

9.00 a.m. he received the call from one Veerbhadrayya

Swami that Vijaykumar has committed suicide by hanging

himself in the hospital. His evidence is formal in nature.

19. PW.7 - Veerbhadrayya Swami is the person

who intimated PW.6 about the suicidal death of Vijaykumar

and his evidence is also formal in nature. PW.8 -

Dr.Mohammad Abdul Rehaman is the autopsy surgeon,

who conducted postmortem and gave a report vide Ex.P6.

He deposed about ligature mark found on the body of the

deceased. He has opined that death is on account of

hanging. This witness is not cross examined by the

defence.

20. PW.9 - Basawaraj is the ASI, who registered

the case and sent the FIR to the police station. His

evidence is formal in nature. PW.10 - Ravi is the witness

for inquest mahazar. He has not supported the case of the

prosecution. PW.11 - Manohar is another ASI and his

evidence is formal in nature. PW.12 is police constable.

He deposed about searching of accused and filing of

report. PW.13 is the police constable, who escorted the

dead body and handed over the clothes which were

removed during the postmortem examination and

produced them before the investigation agency and his

evidence is formal in nature.

21. PW.14 is the co-panch for inquest mahazar.

He supported the case of the prosecution and his evidence

is formal in nature. PW.15 is panch to cloth seizure

panchanama and he did not support the case of the

prosecution.

22. PW.16 is the complainant. She supported the

case of the prosecution by deposing in line with the

complaint averments and also deposed about the incident

that occurred on 31.08.2011. In her cross-examination, it

is elicited that there is a case pending against her son for

the incident that occurred on 31.08.2011. It is elicited

that she does not know whether the torture given by the

deceased to accused No.3 was intimated to higher officials

or not. It is elicited that earlier to discharge of table work,

deceased was working as a driver in Community Health

Centre. She denies that her husband was a drunkard.

She admits that she does not know what used to transpire

in the office. She denies about the notice received by her

husband on 05.09.2011 and on 08.09.2011 seeking

explanation from her husband. She denies that accused

persons are not responsible for the suicidal death of her

husband.

23. The daughter of the complainant is examined

as PW.17. She also deposed in line with the examination

in chief of PWs.1 and 16. In her cross examination, it is

elicited that on 31.08.2011, it was a general holiday on

account of Ramzan festival and on 01.09.2011, there was

a general holiday on account of Ganesh festival. She

admits that no complaint was given by them to the police

in respect of alleged altercation that took place on

31.08.2011. She also denies the notices said to have

given by Sri Ambarish on 05.09.2011 and on 08.09.2011.

24. The FSL report prepared by the officer is

examined as PW.18, who gave report vide Exs.P18 and

P19. The ASI who registered the case and conducted part

of the investigation and further investigation are examined

as PWs.19 and 20. They deposed about registration of the

case, conducting spot mahazar, seizure mahazar, inquest

mahazar and recording statement of the witnesses and

also filing of the charge sheet. In the cross examination of

PW.20 the suggestion made to him that a false chare sheet

is filed against the accused has been denied by him.

PW.21 is the head constable, who received the complaint

and registered the case.

25. Dr.Ambrish, the official superior of the

deceased is examined as DW.1. He deposed that the

deceased was working as a SDA in the hospital and

accused Nos.1 to 3 are also working in the said hospital.

He identified accused Nos.1 to 3 before the Court. He has

answered that deceased was working as a SDA and was

entrusted with the work of preparing the salary bill of the

staff and inward and outward service register of the staff.

He has answered that deceased was not discharging his

duty properly and he was not coming to the office

regularly. Reports have been received by him from his

staff about he not discharging the duty properly.

Accordingly, he had issued notices to him on 05.09.2011

and on 08.09.2011. He identified the same as Exs.D1 and

D2. In his cross examination, it is elicited that the salary

bill would be generated through computer after 18 th of

every month. He has answered that on account of his

other works, he did not generate the salary by himself.

26. The above evidence on record is sought to be

re-appreciated by the learned counsel for the appellants.

On 11.01.2022, the learned counsel for the appellants with

a memo has produced the certified copy of the complaint

given by the accused, which is the subject matter of

C.C.No.138/2012 and the charge sheet filed in respect of

the complaint filed by accused and also the judgment in

C.C.No.138/2012.

27. In this case, the suicidal death of Vijaykumar is

not in dispute. Vijaykumar was working in a Community

Health Centre, Hebbal is not in dispute. So also accused

persons was working in Community Health Centre is also

not in dispute.

28. As could be seen from the complaint, there

was an altercation on 31.08.2011 whereunder accused

Nos.1 and 2 visited the house of the deceased and picked-

up the quarrel with the wife of the deceased and abused

the deceased in filthy language in the morning hours.

Around 8.00 a.m., the son of the complainant (PW.1) came

home from his tuition classes and he intervened. During

the said altercation Vinaykumar (PW.1) assaulted accused

No.2 by hands as could be seen from the complaint

averments. In respect of the said incident, first accused

has lodged a compliant in Chowk Police Station which

came to be registered in Crime No.183/2011. The said

matter was investigated finally resulting in filing the

charge-sheet and during the pendency of the present case,

the said case was pending before the court for trial.

29. Further, there is no counter complaint filed by

the deceased or the complainant or PW.1 in respect of the

said incident.

30. When the altercation took place on 31.08.2021

on the ground that the deceased had not prepared the

salary bill of the third accused Shilpa who worked as a

staff nurse in the Community Health Centre, Hebbal. In

that regard, the altercation has taken place.

31. When the matter stood thus, on 09.09.2011

the deceased went to the hospital in the evening at about

5.00 p.m. Admittedly, the working hours of the hospital

was 10.30 am to 5.30 pm. However, under what pretext

he left the home is not forthcoming on record. At about

8.00-9.00 p.m., on 09.09.2011, complainant said to have

spoken to the deceased over mobile phone, no material is

forthcoming in the form of call records to substantiate the

said aspect of the matter. On 10.09.2011 at about 9.00

am complainant has received the telephone call from her

son-in-law Shivakumar (PW6) stating that PW.7

Veerabhadrayya has informed PW.6 that deceased has

committed suicide by hanging in the office and his dead

body is found in the hanging condition in the hospital.

Immediately, complainant and her son have rushed to the

spot and saw the dead body. The deceased had hung

himself to the ceiling fan in the office. Thereafter, a

complaint came to be lodged and police are investigated

the matter and filed charge-sheet against accused Nos.1 to

3.

32. During the course of investigation, a death

note is recovered by the police from the shirt pocket of the

deceased. Death note is marked as Ex.P.1 which reads as

under :-

"ªÀiÁ£Àå PSI ¥ÉÆð¸À oÁuÉ ªÀÄÄqÀ§Æ¼À EªÀgÀ PÁ°UÉ £ÀªÀĸÁÌgÀU¼ À ÀÄ.

£À£Àß ¸Á«UÉ PÁgÀt F PɼV À £ÀªÀgÀÄ

£Á£ÀÄ AiÀiÁªÀÅzÉà vÀ¥ÀÄà ªÀiÁrgÀĪÀÅ¢®è £À£Àß ºÁUÀÄ £À£Àß ªÀÄUÀ£À ªÉÄÃ¯É ¸ÀļÀÄî C¥ÀgÁzsÀ PÉøÀÄ ZËPÀ ¥ÉÆð¸À oÁuÉAiÀÄ°è 323, 324, 504, 506 ªÀÄvÀÄÛ IPC 34 gÀ CrAiÀÄ°è zÁR°¹zÁÝg.É

PÀĪÀiÁj ²¯Áà vÀAzÉ ¸ÀÄgÉñÀ UÀÄrUÁgÀ, SN ²æà ªÀÄ°èPÁdÄð£ï vÀAzÉ gÁZÀ¥Áà ¥Ánî ».D.¸Á. PÀĪÀiÁgÀ ªÀÄAdÄ£ÁxÀ vÀAzÉ ªÀÄ°èPÁdÄð£ï ¥Ánî

F ªÉÄð£À J¯Áè ªÀåQÛU¼ À À ªÉÄÃ¯É PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ £ÉÆÃrPÉƽî.

£À£Àß ¸ÀA¸ÁgÀzÀ ¸ÀzÀ¸ÀåjUÉ £À£Àß PÉÆãÉAiÀÄ £ÀªÀĸÁÌg.À

¢£ÁAPÀ : 10.9.2011 ¸À»/-

ªÉÃ¼É 5.00 AM «dAiÀÄPÀĪÀiÁgÀ ¹A¦''

33. Death note is proved by the provocation by

placing necessary oral and documentary evidence on

record.

34. As could be seen from the death note, the

registration of the case by the first accused against the

deceased and his son in Crime No.183/2011 is the reason

for the deceased to commit suicide.

35. In the light of the above factual aspects when

the evidence on record is analyzed, as could be seen from

the testimony of accused No.1 and the complainant who is

examined as PW.16, the deceased committed suicide on

account of a false complaint being filed against him.

36. In order to prove the offence punishable under

Section 306 of IPC, the prosecution has to establish that

the accused persons must have abetted the deceased to

commit suicide. What is abetment is defined in Section 107

of the Indian Penal Code. Section 107 of the IPC 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.

Explanation 1.-- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to dis-

close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2.-- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."

37. What is the proof required for establishing the

offence under Section 107 of the IPC is no longer res

integra. In a recent judgment of the Hon'ble Apex Court,

the ingredients to attract the offence punishable under

Section 107 of IPC is enunciated in the case of Geo

Varghese v. State of Rajasthan and another reported

in 2021 SCC OnLine SC 873. The relevant portion of the

said judgment is culled out hereunder for ready

reference;-

"16. The ordinary dictionary meaning of the word 'instigate' is to bring about or initiate, incite someone to do something. This Court in the case of Ramesh Kumar Vs. State of Chhattisgarh ((2001) 9 SCC 618) has defined the word 'instigate' as under :-

"Instigation is to goad, urge forward, provoke, incite or encourage to do an act."

17. The scope and ambit of Section 107 IPC and its co-

relation with Section 306 IPC has been discussed repeatedly by this Court. In the case of S.S.Cheena Vs. Vijay Kumar Mahajan and Anr. ((2010) 12 SCC 190), it was observed as under:-

"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."

18. In a recent pronouncement, a two-Judge Bench of this Court in the case of Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors. ((2021) 2 SCC 427), while considering the co-relation of Section 107 IPC with Section 306 IPC has observed as under:-

"47. The above decision thus arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482 of the 14 (2014) 4 SCC 453 PART I 33 CrPC. However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for quashing and the self restraint imposed by law, has the jurisdiction to quash the investigation ―and may pass appropriate interim orders as thought apposite in law. Clearly therefore, the High Court in the present case has

misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out. The settled principles which have been consistently reiterated since the judgment of this Court in State of Haryana vs Bhajan Lal (Bhajan Lal) include a situation where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. This legal position was recently reiterated in a decision by a two-judge Bench of this Court in Kamal Shivaji Pokarnekar vs State of Maharashtra.

48. The striking aspect of the impugned judgment of the High Court spanning over fifty- six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a 15 1992 Supp. 1 SCC 335 16 (2019) 14 SCC 350 PART I 34 fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution or Section 482 of the CrPC. The High Court, by its judgment dated 9 November 2020, has instead allowed the petition for quashing to stand over for hearing a month later, and therefore declined to allow the appellant's prayer for interim bail and relegated him to the remedy under Section 439 of the CrPC. In the meantime, liberty has been the casualty. The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the case within the fold of Section 306 read with Section 34 of the IPC, this Court is now called upon to perform the task."

19. In the case of M. Arjunan Vs. State, Represented by its Inspector of Police ((2019) 3 SCC 315), a two-Judge Bench of this Court has expounded the ingredients of Section 306 IPC in the following words:-

"The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment;

(ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."

20. At this stage, we may also refer to another recent judgment of a two- Judge Bench of this Court in the case of Ude Singh & Ors. Vs. State of Haryana ((2019) 17 SCC

301), which elucidated on the essential ingredients of the offence under Section 306 IPC in the following words:-

"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/ reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.

16.1. For the purpose of finding out if a person has abetted commission of suicide by another; the consideration would be if the

accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased."

21. We may also refer to a two-Judge Bench judgment of this Court in the case of Narayan Malhari Thorat Vs. Vinayak Deorao Bhagat and Anr., ((2019) 13 SCC 598) wherein the judgment rendered by the High Court quashing the FIR under Section 482 was set aside. In the said case, an FIR was registered under Section 306 IPC stating that the son and

daughter-in-law were teachers in a Zila Parishad School where the accused was also a teacher used to make frequent calls on the mobile of the daughter-in-law, and used to harass her. Despite the efforts of the son of the informant in trying to make the accused see reason and stop calling, the accused continued with his activity. On 09.02.2015, there was a verbal altercation between the son of the informant and the accused and on he committed suicide leaving a note stating that his family life has been ruined by the accused who should not be pardoned and should be hanged. Under Section 482 Cr.PC, a petition was filed by the accused challenging the FIR, which was allowed by the High Court and thereafter, was challenged before this Court. The appeal was allowed by this Court and made the following observations:-

"We now consider the facts of the present case. There are definite allegations that the first respondent would keep on calling the wife of the victim on her mobile and keep harassing her which allegations are supported by the statements of the mother and the wife of the victim recorded during investigation. The record shows that 3-4 days prior to the suicide there was an altercation between the victim and the first respondent. In the light of these facts, coupled with the fact that the suicide note made definite allegation against first respondent, the High Court was not justified in entering into question whether the first respondent had the requisite intention to aid or instigate or abate the commission of suicide. At this juncture when the investigation was yet to be completed and charge-sheet, if any, was yet to be filed, the High Court ought not to have gone into the aspect whether there was requisite mental element or intention on part of the respondent."

22. In the above quoted observations of this Court, there is a clear indication that there was a specific averment in

the FIR that the respondent had continuously harassed the spouse of the victim and did not rectify his conduct despite being objected by the victim. Thus, as a matter of fact he had actively facilitated in the commission of suicide."

38. In the background of the above legal

requirements, if the material evidence on record is

analysed, it is seen from Ex.P.1 - death note, that filing of

a false case is the reason for the deceased to commit

suicide.

39. It is pertinent to note that on 31.08.2011 when

the accused No.1 and 2 had gone to the house of the

deceased to enquire about non preparation of the salary

bill of accused No.3, there was an altercation. In that

altercation, son of the deceased has assaulted accused

No.2, which made the accused No.1 to lodge a complaint

with the Chowk Police Station in Crime No.183/2011.

Police after registering the case, summoned the deceased

and his son to the Chowk Police Station on 01.09.2011.

40. After attending the police station, the deceased

continued to attend the office regularly till 09.09.2011.

Again on 09.09.2011 in the guise of going to the office he

left his house around 5.00 p.m. It is found from the

records that the working hours of the office of the

deceased is 10.30 a.m. to 5.30 p.m. What made him to

leave to the office at 5.30 p.m. on 09.09.2011 is not

explained by the prosecution. When the matter stood thus,

on 10.09.2011 at about 9.00 a.m. the complainant came

to know about the suicide of the deceased.

41. The death note and oral testimony of PW.1 and

PW.16 are the evidence placed by the prosecution to

establish that filing of a false case is the reason for the

deceased to commit suicide. It is pertinent to note that

police after thorough investigation filed charge-sheet

against the deceased and his son Vinaykumar.

42. The said case was contested by the son of the

deceased and ultimately ended in conviction for the

offence punishable under Section 326 of IPC. The appeal

filed by the son of the deceased is no doubt allowed in part

by modifying the sentence portion and holding that the son

of the deceased is also guilty of the offence punishable

under Section 326 of IPC.

43. Therefore, the same is evident from the

certified copies filed by the counsel for the appellant with

memo on 11.01.2022.

44. It is pertinent to note that, as on the date of

appreciating the material evidence on record there was a

charge sheet filed by the jurisdictional police which was

not challenged by the son of the deceased. The said aspect

of the matter is not taken note of by the learned trial

Judge as per Ex.P.1. It is the filing of the false complaint

by the accused No.1, is the cause for committing suicide

by the deceased.

45. A person who has been assaulted by another

person, approaching to police and registering the case

cannot be treated as an abatement in terms of Section 107

of IPC. Moreover, if the case is a false case, it would not

have ended in conviction and it would not have also been

confirmed by the first Appellate court. It is submitted at

the Bar that no further revision petition is filed against the

order passed by the first Appellate court in Criminal Appeal

No.36/2018. In other words, the son of the deceased is

satisfied with the modified sentence and order passed by

the first Appellate Court in respect of the incident that

occurred on 31.08.2011 in his house whereby, he has been

convicted for the offence punishable under Section 326 of

IPC.

46. Any person who has received an injury that too

a fracture injury could be allowed to not to take any action

by approaching the court of law. Therefore, the conduct of

accused No.1 approaching the Chowk Police Station, in

respect of incident that occurred on 31.08.2011 in the

house of the deceased and seeking redressal of his

grievance in accordance with law cannot be termed as an

abetment to commit suicide by the deceased. In other

words, there may be other extraneous reasons which

resulted in committing the suicide by the deceased.

Investigation agency did not bestow their attention and

their investigation was only focused on Ex.P.1 death note.

Now the investigation agency was required to unearth the

truth despite Ex.P.1 being recovered from shirt pocket of

the deceased to find out what exactly is the reason for

committing suicide by the deceased.

47. Fact remains that the deceased was not

working properly in the office and he had received two

memos as per Exs.D1 and D2. DW.1 being the official

superior, did not possess any previous enmity or animosity

against the deceased to issue Exs.D1 and D2 nor he

possessed any extra affinity towards accused Nos.1 to 3 to

depose before the court in favour of the accused Nos.1 to

3. In other words, DW.1 being a neutral person official

superior of the deceased, has placed the true facts before

the court and has specifically stated that the deceased was

not discharging the work properly and there were several

complaints against him which resulted him to issue notices

vide Exs.D1 and D2. This aspect of the matter is not taken

note of by the learned trial Judge while holding that the

accused persons are guilty of the offence punishable under

Section 306 of IPC.

48. It is also pertinent to note that the incident

that took place on 31.08.2011, the complainant, deceased

or his son did not lodge complaint to the police. If at all if

they are not at fault what made them to file a counter

complaint against accused Nos.1 and 2 on 31.08.2011 or

atleast when they visited the Chowk Police Station on

01.09.2011 is a question that remains unanswered. In

other words, the material on record including the death

note marked at Ex.P.1 would not be sufficient enough to

arrive at a finding that the action of accused No.1 lodging

a complaint against the deceased is the sole reason and

resulted in abetting the deceased to commit suicide.

49. It is well settled principles of law that in order

to convict an accused for the offence punishable under

Section 306 of IPC, the material evidence on record must

be so crystal clear that the sum total of the material

evidence should result in abetment for the deceased to

commit suicide. Such materials are not available on record

in view of the above factual aspects of the matter.

Accordingly, point No.1 is answered in the negative and

point No.2 is answered in the affirmative. Hence, this court

pass the following :

ORDER

The Criminal Appeal is allowed.

The judgment of conviction and order of sentence

passed in Sessions Case No.127/2012 dated 14.07.2015

by the court of Principal Sessions Judge, at Kalaburagi, is

hereby set-aside.

Bail bonds stand discharged.

Fine amount in deposit is ordered to be returned to

the accused.

Sd/-

JUDGE

Srt/sn