Karnataka High Court

State Of Karnataka vs Sabanna And Ors on 19 September, 2023

Bench: Mohammad Nawaz, Rajesh Rai K

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                                                       CRL.A No. 200053 of 2018




                                IN THE HIGH COURT OF KARNATAKA
                                       KALABURAGI BENCH

                           DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
                                             PRESENT
                           THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                                AND
                              THE HON'BLE MR. JUSTICE RAJESH RAI K


                              CRIMINAL APPEAL NO. 200053 OF 2018
                      BETWEEN

                      STATE OF KARNATAKA THROUGH
                      RURAL POLICE STATION, YADGIRI.
                                                                   ...APPELLANT
                      (BY SRI.SIDDALING P.PATIL, ADDL. SPP)
                      AND
                      1.    SABANNA S/O LAKSHMAYYA KUMBAR,
                            AGE:32 YEARS, OCC: COOLIE WORK,
                            R/O: HOSSALLI, TQ:YADGIRI.
                      2.    DURGAPPA S/O LAKSHMAYYA KUMBAR,
                            AGE:52 YEARS, OCC: COOLIE WORK,
Digitally signed by
                            R/O: HOSSALLI, TQ:YADGIRI.
SOMANATH
PENTAPPA MITTE        3.    LAKSHMAYYA S/O DURGAPPA KUMBAR,
Location: HIGH
COURT OF
KARNATAKA
                            AGE:52 YEARS, OCC: COOLIE,
                            R/O: HOSSALLI, TQ: YADGIRI.

                      4.   NARASAMMA W/O LAKSHMAYYA KUMBAR,
                           AGE:50 YEARS, OCC: COOLIE WORK,
                           R/O: HOSSALLI, TQ:YADGIRI.

                      5.   SHIVAMMA W/O SABANNA KUMBAR,
                           AGE:33 YEARS, OCC: COOLIE WORK,
                           R/O: HOSSALLI, TQ:YADGIRI.
                                                               ...RESPONDENTS
                      (BY SRI. CHAITANYAKUMAR C M, ADVOCATE)
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                                  CRL.A No. 200053 of 2018



     THIS CRL.A IS FILED U/S 378(1) AND (3) OF CR.P.C,
PRAYING TO, GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED:02.12.2017 PASSED BY THE
DISTRICT & SESSIONS JUDGE, AT YADGIRI IN SESSIONS
CASE     NO.41/2011     THEREBY     ACQUITTING     THE
ACCUSED/RESPONDENTS FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS U/SEC. 143, 147, 498-A & 306 R/W 149 OF
IPC AND ETC.

      THIS APPEAL, COMING ON FOR FINAL HEARING AND
HAVING BEEN HEARD AND RESERVED ON 05.09.2023,
COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K
J., DELIVERED THE FOLLOWING:

                       JUDGMENT

The State has preferred this appeal questioning the

validity of the judgment dated 02.12.2017 passed in

S.C.No.41/2011 by the learned Sessions Judge, Yadgiri,

wherein the learned Sessions Judge has acquitted the

respondents of the offence punishable under Sections 143,

147, 498-A, 306 r/w 149 of IPC.

2. The brief facts of the prosecution case are as

under;

The daughter of CW.1-Devamma (PW5) by name

Mallamma (now deceased in this case) was married to

accused No.1 i.e., respondent No.1 and in their wedlock,

three children were born. The first daughter of Mallamma

CRL.A No. 200053 of 2018

was expired. Thereafter, the deceased Mallamma stayed in

the house of PW.5-Devamma for about three months.

It is the further case of the prosecution that, about

five days prior to the date of incident, the accused No.3

came to the house of PW.5-Devamma and took deceased

Mallamma to his house and subsequently accused No.3

informed PW.5 that deceased Mallamma is not at all

attending any household work and asked PW.5 to take her

back. However, PW.5 requested the accused not to do

anything to her daughter and she would come to their

house shortly. That on 23.09.2010 at about 4.00 p.m., the

accused No.1, informed PW.5 over phone that her

daughter died in his house and to take her dead body.

Immediately, PW.5 along with PWs.6 to 9 came to

S.Hosalli village i.e., to the house of accused No.1 and saw

the dead body of her daughter and blood oozing from her

mouth and ears, also there were hidden injury marks on

the ear as well as on the back of the deceased. Thereby

suspecting the murder of deceased Mallamma, PW.5

lodged the complaint against the accused persons i.e.,

CRL.A No. 200053 of 2018

respondents before the Rural Police Station, Yadgiri as per

Ex.P4. The same was registered in Crime No.160/2010

against the accused persons for the offence punishable

under Sections 143, 147, 498-A, 302 r/w 149 of IPC by

PW.13 as per Ex.P15.

During the course of investigation, the Investigating

Officer came to know that the accused persons were

subjecting the deceased to cruelty on the ground that she

was not at all doing any household and agricultural work

and they tortured her both physically and mentally. Due to

the said harassment meted out by accused persons, she

had committed suicide by consuming pesticides on

22.09.2010 at about 10.00 p.m. in the matrimonial home.

Accordingly, after conducting the investigation, the

Investigating Officer laid charge sheet against the accused

persons before the Committal Court. On committal of the

case before the Sessions Court/trial Court, the learned

Sessions Judge framed the charges against the accused

persons for the aforesaid offences and accused denied the

same and claimed to be tried.

CRL.A No. 200053 of 2018

3. In order to prove the guilt of the accused before

the trial Court, the prosecution in total examined 14

witnesses as PWs.1 to 14 so also got marked 16

documents as Exs.P1 to 16 and 4 material objects as

MOs.1 to 4. After conclusion of the evidence of prosecution

side, the learned Sessions Judge read over the

incriminating evidence of material witnesses to the

accused as contemplated under Section 313 of Cr.P.C.

However, the accused denied the same. The accused did

not choose to examine any witnesses on their behalf, but

got marked 3 documents as Exs.D1 to D3 i.e., portions of

statements of PWs.7 to 9 respectively. The defence of the

accused was one of total denial and that of false

implication.

4. After assessment of the oral and documentary

evidence and also hearing the learned counsel appearing

for the parties, the learned Sessions Judge acquitted the

accused for the aforesaid offences vide judgment dated

02.12.2017 as stated supra.

CRL.A No. 200053 of 2018

5. The said judgment of acquittal is challenged

under this appeal by the State.

6. We have heard the learned Addl. SPP appearing

for the appellant/State so also the learned counsel

appearing for respondents/accused.

7. Learned Addl. SPP vehemently contended that

the judgment under appeal suffers from perversity and

illegality, since the learned Sessions Judge without

meticulously examining the evidence available on record,

acquitted the accused. As such the impugned judgment is

liable to be set aside. He would further contend that

PWs.5 to 9 including mother and other relatives of the

deceased categorically deposed about the harassment

meted out by accused to the deceased in the matrimonial

home. Due to the said harassment in the matrimonial

home, the deceased has committed suicide. He contends

that, the evidence of PWs.5 to 9 has not been properly

appreciated by the learned Sessions Judge. Hence, the

judgment seriously suffers from illegality. He would further

contend that PWs.5 to 9 are the relatives of deceased, the

CRL.A No. 200053 of 2018

relationship of the witnesses does not affect the credibility

of said witnesses and the Court shall scrutinize the

evidence of relevant witnesses and if the evidence

available on record is cogent, then the trial Court is duty

bound to consider the same while passing the judgment.

According to the learned Addl. SPP, the trial Judge has

totally failed to appreciate the material evidence.

According to him, PW.5 the mother has categorically

deposed about the harassment meted out by the accused

and she fully supported the case of the prosecution by

stating that all the accused used to torture the deceased

for the reason that she did not know the household and

agricultural work and she was sitting idle at home and

having her meals. As such they forced PW.5 to take her

daughter to parental home. He contended that, despite

such evidence available on record, the learned Sessions

Judge totally discredited the versions of PWs.5 to 9 as

such the judgment passed by the Sessions Judge is liable

to be set aside. Accordingly, he prays to allow the appeal.

CRL.A No. 200053 of 2018

8. Per contra, learned counsel appearing for the

respondents/accused would vehemently contend that the

judgment under this appeal does not suffer from any

perversity or illegality, since the trial Judge acquitted the

accused by considering all the evidence available on

record. The prosecution utterly failed to prove the charges

leveled against the accused by leading cogent and

trustworthy evidence. As such the Sessions Judge has

rightly acquitted the accused. Learned counsel would

contend that, there are contradictions in the evidence of

PWs.5 to 9 as they have admitted that they have not

stated as per Exs.D1 to D3 in their evidence, wherein

PW.14 the Investigating Officer stated that they have

given statement before him as per Exs.D1 to D3.

Therefore, Exs.D1 to D3 are the material omissions

amounting to contradictions in the evidence of PWs.5 to 9

respectively. Further, PWs.5 to 9 are only circumstantial

witnesses. On overall perusal of the evidence, the

circumstances are not established by the prosecution to

point out the guilt of the accused persons. There is no

CRL.A No. 200053 of 2018

evidence available on record to establish that the accused

persons harassed the deceased before her death and

thereby abeted her to commit her suicide. In such

circumstances, the prosecution totally failed to prove the

charges leveled against the accused persons for the

offence punishable under Sections 498-A and 306 of IPC.

Hence, he prays to dismiss the appeal.

9. We have bestowed our anxious consideration to

the submissions made by the learned counsel for the

appellant/State so also the learned counsel for

respondents/accused and perused the evidence and

materials available on record including the impugned

judgment passed by the trial Court.

10. As far as the witnesses examined before the

trial Court to prove the charges leveled against the

accused are concerned, PWs.1 and 2 are the witnesses for

the spot mahazar drawn as per Ex.P1 so also mahazar

Ex.P2 i.e., seizure of clothes of the deceased i.e., MOs.1 to

3. However, both these witnesses have turned hostile.

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CRL.A No. 200053 of 2018

11. PWs.3 and 4 are witnesses for inquest mahazar.

Both have supported the case of the prosecution. PW.5 is

the mother of deceased, she has re-iterated the

averments of complaint filed by her as per Ex.P4 and

deposed that prior to the date of incident, accused No.3

was assaulting her daughter and thereby torturing her

both physically and mentally. Prior to six days of the

incident, the accused once again assaulted her daughter

and committed her murder.

12. PW.6 is the brother of deceased and he has also

deposed similar to PW.5 about harassment meted out by

accused No.3 to his sister both physically and mentally in

the matrimonial home.

13. PW.7 is a relative of the deceased, he has also

deposed about the harassment meted out by the accused

to the deceased.

14. PW.8 is the sister of deceased and she has

stated that prior to six days of the date of incident,

accused No.3 took her sister from her parental home to

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CRL.A No. 200053 of 2018

the matrimonial home and thereafter committed the

murder.

15. PW.9 is another brother of the deceased and he

has deposed about the harassment meted out by the

accused to the deceased.

16. PW.10 is the doctor who conducted the autopsy

over the dead body and issued post mortem report as per

Ex.P11 and he gave the final opinion as to the cause of

death as per Ex.P12.

17. PW.11, the then police constable of Yadgiri

Rural Police Station, carried the hyiod bone of the

deceased to the FSL.

18. PW.12 is the Assistant Engineer, who drew the

sketch of the spot as per Ex.P14.

19. PW.13, is the then PSI of Yadgiri Rural Police

Station, who registered the FIR as per Ex.P15 in Crime

No.160/2010 against the accused based on the complaint

lodged by PW.3 as per Ex.P4.

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CRL.A No. 200053 of 2018

20. PW.14 is the then Police Inspector of Yadgiri

Rural Police Station and Investigating Officer in the case.

He laid the charge sheet against the accused for the

aforesaid offences after completing investigation.

21. On a careful perusal of the evidence on record,

PWs.5 to 9 are relatives of the deceased, who have stated

in their evidence that the accused persons committed the

murder of deceased Mallamma by assaulting her. But a

perusal of the post mortem report issued by PW.10 as per

Ex.P11 and medical opinion given by PW.10 as per Ex.P11,

reveal that the injuries sustained by the deceased has not

caused her death. The final opinion issued by PW.10, after

receiving the FSL report as per Ex.P9 and hyiod bone

report, as to the cause of death is "due to asphyxia as a

result of organo phosphorus compound poisoning" as per

Ex.P11. According to the doctor, he received a letter from

CPI Yadgiri regarding injuries mentioned in the post

mortem report and he has given opinion as per Ex.P12

that those injuries are simple in nature and did not cause

the death of patient.

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CRL.A No. 200053 of 2018

22. On a perusal of the entire evidence of PW.10

coupled with Exs.P8 to 12, clearly indicates that the

deceased died suicidal death and not homicidal death.

Though, PWs.5 to 9 relatives of the deceased have

deposed in their evidence that the accused have

committed the murder of deceased, by noticing injuries

found on the body of the deceased Mallamma, but the

medical report and the evidence of PW.10-the doctor

clearly establishes the fact that it is a suicidal death. The

evidence of PW.5, the complainant who is mother of

deceased depicts that, the accused assaulted her daughter

and sent her to their house i.e., parental house for the

reason that she did not know household and agricultural

work. She further stated that 6 days prior to the date of

incident, the accused assaulted her daughter and due to

the same, her daughter died. Similarly, PW.4 i.e. the

brother of deceased and PW.8-sister of the deceased also

deposed as stated supra. Their oral evidence is quite

contrary to the medical evidence deposed by PW.10. Even

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CRL.A No. 200053 of 2018

otherwise, charge is not framed under section 302 IPC,

but under section 306 IPC and 498-A IPC.

23. As far as the charge under Section 498-A of IPC

is concerned, there is no specific evidence deposed by

PWs.5 to 9 except the omnibus statement/evidence that

the accused have harassed and assaulted the deceased

and committed her murder. According to all these

witnesses, the harassment meted out by accused to the

deceased for the reason that she did not know household

and agricultural work.

24. On perusal of the cross-examination of PW.5,

she categorically admitted that before death of deceased,

the deceased and accused No.1 were residing at Bengaluru

and they were doing coolie work for their livelihood. The

other accused were residing separately at their village.

The said admission of PW.5, establishes the fact that the

deceased and accused No.1 were residing separately and

there was no reason for the accused to harass the

deceased on the ground that she did not know household

and agricultural work. PW.5 also admitted in her cross-

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CRL.A No. 200053 of 2018

examination that the first daughter of the deceased died

three months prior to the date of incident and during those

three months, the deceased was residing along with PW.5

in the parental house and she was depressed at that time.

The said aspect was even admitted by PWs.6, 8 and 9 i.e.,

brothers and sister of the deceased respectively. Hence,

on a careful perusal of the evidence of these witnesses,

clearly depicts that the deceased was under depression

since three months before her death, on account of the

death of her elder daughter and during those three

months she was residing at her parental house i.e., along

with PW.5. Such being the case, the allegation in the

complaint and the evidence of PWs.3 to 5 to the effect that

accused were harassing her for not knowing the household

and agricultural work appears to be doubtful.

25. Admittedly, PWs.5 to 9 are not eye-witnesses

and they are only circumstantial witnesses. On a careful

perusal of their evidence, the prosecution has failed to

establish the guilt of accused for the offences charged. The

evidence of PWs.5 to 9 is not cogent, clear and

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CRL.A No. 200053 of 2018

corroborative with each other to show that accused

persons have abetted the deceased to commit suicide as

alleged by the prosecution. Nevertheless, there is no

material evidence with regard to the cruelty or harassment

as defined under Section 498(A) of IPC.

26. The Hon'ble Apex Court in catena of judgments

held that, in order to attract Section 306 of IPC, it must be

shown that the accused persons have intentionally aided

or abetted the deceased to commit suicide. In the case on

hand, there is no such evidence available on record.

27. The Hon'ble Apex Court, in the case of Mariano

Anto Bruno and Another Vs. The Inspector of Police

reported in 2022 live law (SC) 834 held in paragraph

Nos.36 and 38 as under:

"36. To convict a person under Section 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide.

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CRL.A No. 200053 of 2018

38. This Court has time and again reiterated that before convicting an accused under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."

In the case on hand, no such evidence is forthcoming to show that the accused played an active role by their acts and instigated or provoked the deceased to commit suicide and has done any act which could be said to have facilitated the commission of suicide by the deceased.

38. Thus, in view of the dictum laid down by the Hon'ble Apex Court, it is clear that in order to convict an accused under Section 306 of IPC, the state of mind to commit the crime must be visible with regard to determining the culpability. There has to be a clear mens rea to commit the offence by the accused. It also

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CRL.A No. 200053 of 2018

requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intend to push the deceased into such a position that she committed suicide. The person who is said to have committed the abetment must have played an active role by act of instigation or doing certain act to facilitate the commission of suicide.

28. In the case on hand, upon examining the entire

evidence of prosecution witnesses, the evidence of PWs.1

to 14 are not cogent, corroborative and convincing to

show that the accused No.1 being the husband and

accused Nos.2 to 5 being the in-laws of deceased, with a

common object subjected her to physical and mental

cruelty for not knowing the household and agricultural

work and thereby tortured her and due to the same she

committed suicide by consuming pesticides as alleged by

the prosecution.

29. This appeal is preferred against the judgment of

acquittal. In order to interfere with the acquittal judgment,