Karnataka High Court

Smt. Sowbhagya vs State By Kyathasandra Police Station on 15 February, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

                                                -1-
                                                             NC: 2024:KHC:6540
                                                        CRL.A No. 1206 of 2012




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 15TH DAY OF FEBRUARY, 2024

                                              BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                               CRIMINAL APPEAL No. 1206 OF 2012
                      BETWEEN:

                         SMT. SOWBHAGYA
                         W/O LATE GANGARAJU
                         AGED ABOUT 32 YEARS
                         R/O NO.236, NELAGADARANAHALLI
                         NAGASANDRA POST
                         BENGALURU NORTH TALUK.
                                                              ...APPELLANT
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI       (BY SRI RAMESH CHANDRA, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA             AND:


                         STATE BY KYATHASANDRA POLICE STATION
                         REPRESENTED BY PULBIC PROSECUTOR
                                                           ...RESPONDENT



                      (BY SMT. N ANITHA GIRISH, HCGP)

                           THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
                      SET ASIDE THE ORDER OF CONVICTION PASSED IN S.C.
                      No.40/2011 BY THE PRINCIPAL DISTRICT & SESSIONS JUDGE,
                      TUMKUR DATED 4.10.2012 CONVICTING THE APPELLANT/
                      ACCUSED FOR THE OFFENCE P/U/S 306 OF IPC.


                           THIS APPEAL, COMING ON FOR DICTATING JUDGMENT
                      THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                  -2-
                                               NC: 2024:KHC:6540
                                          CRL.A No. 1206 of 2012




                          JUDGMENT

1. This appeal is filed by appellant - accused No.1

praying to set aside the judgment of conviction and order

of sentence dated 04.10.2012 passed in S.C. No. 40/2011

by the Principal District and Sessions Judge, Tumakuru.

Appellant - accused No. 1 has been convicted for offence

under Section 306 of IPC and sentenced to undergo simple

imprisonment for a period of 3 years and to pay fine of

Rs.10,000/- and in default to undergo simple

imprisonment for a period of 6 months.

2. Factual matrix of the prosecution case is as

under:

P.W.1 had filed a complaint stating that his younger

brother - Gangaraju after marriage with appellant -

accused No.1 about 4 years back was residing at

Bengaluru and during festival time he used to visit his

native place at Siddegowdana Palya, Tumakuru. On those

occasions of his visit to his native place he was telling that

he was being subjected to harassment and cruelty by his

NC: 2024:KHC:6540

wife and she was also condemning him and asking him to

die. That being the case, on 21.04.2009 in the afternoon

at about 12.30 pm the deceased Gangaraju was noticed by

one Ashwathaiah near the lands of Chikkarangappa when

he went to graze his sheep and he also noticed poison

bottle and soft drink bottle (Fanta bottle). In the complaint

it is stated that the deceased committed suicide because

of the cruelty meted out to him by his wife Sowbhagya

(appellant - accused No. 1). It is also stated in the

complaint that near the dead body an exercise note book

was found wherein the deceased had written that his wife

is the cause for his death. A case came to be registered

against appellant - accused No. 1 and others for offence

under Section 306 of IPC. After investigation charge sheet

came to be filed for offence under Section 306 read with

Section 34 of IPC against accused Nos. 1 to 5. After

committal the Sessions Court framed charge against

accused Nos.1 to 5 for the offence under Section 306 of

IPC. In order to prove the charge the prosecution

examined P.W.1 to P.W.19 and got marked Ex.P.1 to

NC: 2024:KHC:6540

Ex.P.32 and M.O.1 and M.O.2. A portion of the statement

of P.W.18 has been marked as Ex.D.1. The trial Court after

hearing arguments on both the sides formulated points for

consideration and after appreciating the evidence on

record passed the impugned order convicting only

appellant - accused No. 1 for offence under Section 306 of

IPC and acquitting accused Nos. 2 to 5. Said judgment of

conviction and order of sentence has been challenged in

this appeal.

3. Heard learned counsel for appellant - accused

No. 1 and learned HCGP for respondent - State.

4. Learned counsel for appellant - accused No. 1

would contend that the evidence on record will not

establish that appellant - accused No. 1 instigated the

deceased to commit suicide. The alleged note book -

Ex.P.3 said to contain the death note of the deceased does

not contain any reasons as to why the deceased has

stated that his wife is the cause for his death. The alleged

illicit relationship between appellant - accused No. 1 and

NC: 2024:KHC:6540

accused No. 2 has not been stated by P.W.1 in his

complaint - Ex.P.1 and the said aspect stated by him

before the Court is an improvement. Brothers of the

deceased, namely, P.W.1, P.W.2 and P.W.6 have not met

the deceased immediately prior to the incident and P.W.1

has stated that he met the deceased 6 months prior to his

death and P.W.6 has stated that he had met the deceased

2 months prior to his death. The evidence of P.W.6 does

not establish illicit relationship between appellant -

accused No. 1 and accused No. 2. Even P.W.7 has stated

that the relationship between appellant - accused No. 1

and deceased was cordial. The landlord of the house of the

deceased, i.e., P.W.10 has not stated anything with regard

to the harassment by appellant - accused No. 1 to her

husband - deceased Gangaraju. The Investigating Officer

- P.W.17 has stated that P.W.1 has not stated about the

illicit relationship of appellant - accused No. 1 and accused

No. 2 in his complaint - Ex.P.1. Witnesses to inquest

mahazar - Ex.P.25 whose statement is recorded by the

Investigating Officer have not stated anything with regard

NC: 2024:KHC:6540

to the illicit relationship of appellant - accused No. 1 with

accused No.2. He contends that the admitted handwriting

of the deceased has not been collected and handwriting

expert has given report only tallying the signature of the

deceased found on page No. 5 of Ex.P.3 - note book with

his admitted signature found on Ex.P.22. He contends that

even though Ex.P.3 containing the death note of the

deceased is taken into consideration, it does not establish

that appellant - accused No. 1 abetted the deceased to

commit suicide. Learned counsel for appellant - accused

No. 1 has relied upon the following decisions.

I. M. Mohan Vs. State, represented by the Deputy

Superintendent of Police, AIR 2011 SC 1238

II. Mohit Singhal and another Vs. State of

Uttarkhand, 2023 (0) SCC 1189

III. State Vs. Santhosh and others, 2013 (5)

Kar.L.J. 238

IV. Shivaswamy @ Kalal Vs. State of Karnataka By

Kollegala Rulra Police Station, 2019 (0)

Supreme (Kar)400

NC: 2024:KHC:6540

V. Amalendu Pal alias Jhantu Vs. State of West

Bengal, 2010 (1) SCC 797

VI. Arjunan Vs. State, AIR 2019 SC 43

5. Learned HCGP appearing for the respondent -

State would contend that the fact that deceased

committed suicide is not in dispute. Evidence of P.W.1,

P.W.2 and P.W.6 who are the brothers of the deceased

will establish that appellant - accused No. 1 had illicit

relationship with accused No. 2 and their evidence is

corroborated by the evidence of P.W.7 who had seen

accused No. No.2 visiting the house of deceased. She has

supported the reasons assigned by the trial Court. With

this she prayed for dismissal of the appeal.

6. On the grounds made out and considering the

arguments advanced the following point arises for my

consideration.

"Whether the trial Court erred in convicting the appellant - accused No.1 for offence under Section 306 of IPC?

NC: 2024:KHC:6540

7. My answer to the above point is in the

affirmative for the following reasons:

The deceased - Gangaraju is the husband of

appellant - accused No. 1. There are no issues to the

deceased - Gangaraju and appellant - accused No. 1 out

of their marriage. The deceased -Gangaraju and appellant

- accused No. 1 were residing in Bengaluru and his brother

- P.W.1 was residing in Siddegowdana Palya. Other

brothers of the deceased were residing separately in

Bengaluru. In Ex.P.1 - complaint it is stated that

whenever the deceased used to visit the village -

Siddegowdana Palya he used tell P.W.1 - complainant that

his wife was harassing and abusing him and therefore, he

had told that it is better to die than to live. The deceased -

Gangarju committed suicide by consuming poison on

21.04.2009 in Siddegowdana Palya. Death of deceased by

consuming poison is not disputed by appellant - accused

No. 1. P.W.1 in his evidence has stated that whenever the

deceased - Gangaraju visited the village for festival and

other functions, he used to tell before him that there were

NC: 2024:KHC:6540

small disputes between him and his wife and he suspected

that his wife had illicit relationship and when he tried to

enquire, she was avoiding the same by giving some

answers to his questions and in that regard he was not

having much information. P.W.1 has admitted that he met

the deceased - Gangaraju 6 months prior to his death

when he had come to the village for Dasara festival. Said

aspect itself goes to show that P.W.1 has not met the

deceased during 6 months prior to the death of the

deceased - Gangaraju.

8. P.W.2 - another brother of the deceased -

Gangaraju has stated in his evidence that the deceased -

Gangaraju had told him that his wife had illicit relationship

with accused No.2 - Chandrashekaraiah. He has also

stated that due to fear of his honour he died.

9. P.W.6 has stated that one day he saw one

unknown person in the house of appellant - accused No.1

and at that time, the door was closed. In his cross-

examination he has stated that he met the deceased -

- 10 -

NC: 2024:KHC:6540

Gangaraju for the last time about 2 months prior to his

death.

10. P.W.7 - the neighbor of deceased - Gangaraju

has stated that the deceased used to tell him about his

domestic problems and also about Chandrashekaraiah -

accused No.2. The deceased had also told

Chandrashekaraiah - accused No. 2 not to come to his

house. He has also stated that when he saw, the deceased

- Gangaraju and appellant - accused No. 1, they were

happily leading their life.

11. A note book containing the death note - Ex.P.3

was found by the side of the dead body of deceased -

Gangaraju. Said note book only contain a writing said to

be written by the deceased - Gangaraju that his wife is

the cause for his death. Except the said aspect nothing has

been stated against his wife or her illicit relationship with

accused No.2 - Chandrashekaraiah. Considering all these

aspects, it is required to consider, whether these aspects

constitute abetment by this appellant - accused No. 1 to

the deceased - Gangaraju to commit suicide?

- 11 -

NC: 2024:KHC:6540

12. This Court in the case of Mangala Gowri vs.

State of Karnataka, reported in 2023 SCC Online 64

wherein it is held as under:

"16. Abetment is defined under Section 107 of the Indian Penal Code which reads as under:

"107. Abetment of a thing.- A person is said abet 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."

17. As per the aforesaid definition there should be instigation to do that thing and then it amounts to abetment. A person is said to have instigate another to an act when he actively suggests or stimulates him to act by means of language, direct or indirect, whether it takes the

- 12 -

NC: 2024:KHC:6540

form of express solicitation, or of hints, insinuation or encouragement.

18. The learned counsel for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Sanju alias Sanjay Singh Sengar Vs Sate of M.P (2002) 5 SCC 371 wherein it is held as under:

"..............Even if we accept the prosecution story that the appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate"

denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion........."

19. The learned counsel for the appellant has placed reliance of the Hon'ble Apex Court in the case of Chitresh Kumar Chopra Vs Sate

- 13 -

NC: 2024:KHC:6540

(Government of NCT of Delhi) (2009) 16 SCC 605 wherein it is observed as under:

"17. Thus to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action; provoke to action or reaction"

(see Concise Oxford English Dictionary);

"to keep irritating or annoying somebody until he reacts" (see Oxford Advanced Learner's Dictionary, 7th Edn.).

18. Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter.

- 14 -

NC: 2024:KHC:6540

19. As observed in Ramesh Kumar, where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, and "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:

(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and

(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.

Undoubtedly, presence of mens rea is

- 15 -

                                           NC: 2024:KHC:6540





the        necessary            concomitant      of
instigation."

20. In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on is inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for selfprotection or an escapism from intolerable self."

- 16 -

NC: 2024:KHC:6540

13. It is the evidence of P.W.1 that his brother

deceased - Gangaraju had told him that his wife -

appellant - accused No.1 used to abuse him asking him to

go and die. The Hon'ble Apex Court in the case of Sanju

Alias Sanjay Singh Sengar vs. State of M.P., 2002 (5)

SCC 371, has held that the accused telling the deceased to

go and die that itself does not constitute the ingredient of

instigation.

14. In cases of alleged abetment of suicide there

must be proof of direct or indirect incitement to the

commission of suicide. Merely on the allegation of

harassment without there 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 of IPC is not

sustainable. Same has been observed by the Hon'ble Apex

Court in the case of Amalendu Pal Alias Jhantu vs.

State of West Bengal, reported in 2010 (1) SCC 417.

- 17 -

NC: 2024:KHC:6540

15. The Hon'ble Apex Court in the case of Netai

Dutta vs. State of West Bengal reported in 2005 (2)

SCC 659 has observed thus:

"6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any willful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has placed any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag."

16. In Ex.P.3 - note book containing the death note

of the deceased - Gangaraju except mentioning that

appellant - accused No. 1 who is the wife is the cause for

his death, nothing else is mentioned. There is no reference

to any act or incidence whereby the appellant - accused

No.1 herein is alleged to have committed willful act or

omission or intentionally aided or instigated the deceased

- 18 -

NC: 2024:KHC:6540

in committing the act of suicide. The deceased has not

made any accusation against his wife - appellant -

accused No.1 of having illicit relationship with accused No.

2 in his death note. There is no allegation of any

harassment by appellant - accused No.1 to the deceased -

Gangaraju in the death note contained in Ex.P.3.

17. How a human mind reacts has been observed

by the Hon'ble Apex Court in the case of Ude Singh Vs.

State of Haryana reported in 2019 (17) SCC 301

wherein it is observed as under:

"16.2. We may also observe that human mind could be affected and could react in myriad ways; and impact of one's action on the mind of another carries several imponderables. Similar actions are dealt with differently by different persons; and so far a particular person's reaction to any other human's action is concerned, there is no specific theorem or yardstick to estimate or assess the same. Even in regard to the factors related with the question of harassment of a girl, many factors are to be considered like age, personality, upbringing,

- 19 -

NC: 2024:KHC:6540

rural or urban set-ups, education, etc. Even the response to the ill action of eve teasing and its impact on a young girl could also vary for a variety of factors, including those of background, self-confidence and upbringing. Hence, each case is required to be dealt with on its own facts and circumstance"

18. A person may attempt to commit suicide due to

various reasons such as depression, financial difficulties,

disappointment of love, tired of domestic worries, acute or

chronic ailments and so on and need not be due to

abetment and the same has been observed by the Hon'ble

Apex Court in the case of Mangat Ram Vs. State of

Haryana, reported in AIR 2014 SC 178.

19. The Hon'ble Apex Court in the case of M.

Mohan Vs. State reported in 2011 (3) SCC 626 has

observed as under:

"44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to

- 20 -

NC: 2024:KHC:6540

instigate or aid in committing suicide, conviction cannot be sustained.

45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."

20. The deceased - Gangaraju even after 4 years of

his marriage with appellant - accused No. 1 did not had

any issues. What is the cause for his death, whether it is

at the instigation and abetment of appellant - accused No.

1 has not been stated in his death note contained in

Ex.P.3. Therefore, the evidence on record is not sufficient

to hold that appellant - accused No. 1 has abetted the

deceased to commit suicide. The trial Court erred in

holding that appellant - accused No. 1 abetted the

- 21 -

NC: 2024:KHC:6540

deceased to commit suicide. The trial Court erred in