Karnataka High Court
The State Of Karnataka vs Anwar Sadiq on 28 February, 2024
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CRL.A No. 993 of 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.993 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
BY DEPUTY SUPERINTENDENT OF POLICE,
BANTWAL POLICE STATION,
BANTWAL TALUK,
D.K. DISTRICT - 01.
...APPELLANT
(BY SMT. WAHEEDA M M, HCGP)
AND:
ANWAR SADIQ
S/O MOHAMMED,
AGED ABOUT 36 YEARS,
R/O PALLAMAJULU HOUSE,
BANTWAL MOODA VILLAGE,
BANTWAL TALUK,
D.K.DISTRICT - 574 211.
Digitally signed ...RESPONDENT
by REKHA R
(BY SRI. IMTIYAZ B, ADVOCATE FOR
Location: High
Court of SRI. ANIL KUMAR H, ADVOCATE)
Karnataka
THIS CRL.A IS FILED UNDER SECTION 378(1) AND (3)
OF CR.P.C PRAYING TO a) GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER DATED 29.01.2018 PASSED IN
S.C.NO.112/2014 ON THE FILE OF THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 498A, 306 OF IPC; b) SET
ASIDE THE JUDGMENT AND ORDER DATED 29.01.2018 PASSED
IN S.C.NO.112/2014 ON THE FILE OF THE III ADDL. DISTRICT
AND SESSIONS JUDGE, D.K., MANGALURU ACQUITTING THE
RESPONDENT / ACCUSED FOR THE OFFENCES PUNISHABLE
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UNDER SECTIONS 498(a) AND 306 OF IPC; c) CONVICT AND
SENTENCE THE RESPONDENT / ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 498(a) AND 306 OF IPC, IN
THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 378 (1) and (3) of
Cr.P.C, the State has challenged acquittal of
respondent/accused for the offences punishable under
Sections 498-A and 306 IPC.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. A charge sheet came to be filed against accused
alleging that his marriage with deceased Mumtaz was
performed about nine years prior to the date of incident
and they were having two daughters. They were living at
Pallamajalu of B. Muda village. At the relevant point of
time, accused was working at Saudi Arabia. The sister of
accused was given in marriage to the brother of deceased
Mumtaz. From the beginning the accused was telling
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deceased Mumtaz that she is not good looking and he
married her for the sake of his sister and on the date of
incident also, accused called deceased Mumtaz and said
that she and her daughter should go and die by jumping
into a well or river. As a result of the constant harassment
meted out by the accused, on 19.06.2013, at about 2.40
p.m, deceased Mumtaz took her daughters to Nethravathi
river bridge. First, she pushed the children into the river
and herself jumped and commit committed suicide and
thereby accused committed the offence punishable under
Sections 498-A and 306 IPC.
4. Accused pleaded not guilty and claimed the
trial.
5. In order to prove the allegations against the
accused, prosecution examined PW-1 to 16 and got
marked Ex.P1 to 19.
6. During the course of his statement under
Section 313 Cr.P.C, accused has denied the incriminating
evidence led by the prosecution.
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7. The accused has lead the defence evidence by
examining the brother of deceased Mumtaz, namely Jenith
as DW-1. No documents are marked on behalf of the
accused.
8. Vide the impugned judgment and order the trial
Court acquitted the accused.
9. Aggrieved by the same State has come in
appeal, contending that the impugned judgment and order
of the trial Court is illegal and perverse and as such liable
to be set aside. The trial Court has failed to appreciate the
evidence of PW-1 to 3 the father, mother and sister of
deceased Mumtaz regarding the constant harassment
meted out by accused to her. As a result of which she
chose to kill her daughters and commit suicide. It has
completely misread their evidence. Having regard to the
nature of allegations, the relatives of the deceased are the
proper persons to speak about the harassment meted out
by the accused to the deceased Mumtaz, as a result of
which she chose to end her life by killing her children. The
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accused is not having any explanation as to why deceased
Mumtaz would take the extreme step of ending her life
along with her children. The complaint may not be an
encyclopedia of the case of prosecution and the trial Court
has erred in giving undue importance to the minor
omissions. In the light of oral and documentary evidence
led by the prosecution, the allegations against accused are
proved beyond reasonable doubt. It is a fit case to convict
the accused and sentence him in accordance with law and
hence the appeal.
10. On the other hand, learned counsel for accused
supported the judgment and order and sought for
dismissal of appeal.
11. In support of his arguments, learned counsel for
respondent has relied upon the following decisions:
(i) Sanju @ Sanjay Sing Sengar Vs. State of
M.P (Sanju)1
(ii) Ramesh Kumar Vs. State of Chhattisgarh
(Ramesh Kumar)2
(2002) 5 SCC 371
(2001) 9 SCC 618
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(iii) Ude Singh and Ors Vs. State of Haryana
(Ude Singh)3
(iv) Mangat Ram Vs. State of Haryana (Mangat
Ram)4
(v) M.Mohan Vs. State Rep. Dy.S.P (M.Mohan)5
(vi) M.Arjunan Vs. State Rep by its Inspector of
Police (M.Arjunan)6
(vii) State of Haryana Vs. Darshan Lal and Anr.
(Darshan Lal)7
(viii) Mariano Anto Bruno and Anr Vs. Inspector of
Police (Mariano)8
(ix) Shabbir Hussain Vs. State of Madhya Pradesh
and Ors. (Shabbir Hussain)9
(x) Mohit Singhal and Anr. Vs. State of
Uttarakhand and Ors (Mohit Singhal)10
12. Heard elaborate arguments of both sides and
perused the record.
13. The undisputed facts are that deceased Mumtaz
was given in marriage to accused and they were having
two daughters. The sister of accused was given in
(2019) 17 SCC 301
(2014) 12 SCC 595
(2011) 3 SCC 626
(2019) 3 SCC 315
2023 SCC Online P&H 445
2022 SCC Online SC 1387
(2012) 17 SCC 807
(2024) 1 SCC 417
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marriage to the brother of deceased Mumtaz. For some
time the brother of deceased Mumtaz and his wife stayed
together with parents of deceased Mumtaz. Later they set
up separate residence. At the time of marriage, accused
was working in Fatima Stores. Later accused and the
brother of Mumtaz started working at Saudi Arabia. On
19.06.2013, deceased Mumtaz choose to end her life after
pushing her two daughters into the Nethravathi river. In
fact, on that day, the accused called complainant and
informed him that deceased Mumtaz called him over
telephone and gave threat of committing suicide along
with children and that she is not picking up his phone call
and requested the complainant to look into the matter.
14. However, by the time complainant went to the
spot, already deceased Mumtaz had committed suicide
after pushing her children into the river. After the incident
on 19.06.2013, at the earliest available opportunity,
complainant has given a report to the Ullal police stating
that for some unknown reasons, Mamtaz has taken the
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extreme step of ending her life after killing her children.
Based on the said report, the concerned police have
registered a case under Section 174 Cr.P.C and in fact,
they have filed abatement charge sheet against deceased
Mumtaz for the offence punishable under Section 302
I.P.C and it is closed. The prosecution case is required to
be appreciated in the light of the admitted facts.
15. Before deciding the merits of the case, it is
necessary to refer to the ratio in the decisions relied upon
by the learned counsel for accused.
(i) In Sanju, the Hon'ble Supreme Court held that
instigate denotes incitement or urging to do some drastic
or inadvisable action or to stimulate or incite. It further
held that presence of mens rea is the necessary
concomitant for instigation and words uttered in a quarrel
or on the spur of moment, such as "to go and die", cannot
be taken to be uttered with mens rea.
(ii) In Ramesh Kumar, the Hon'ble Supreme Court
held that in order to decide whether the husband abetted
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suicide of wife by instigating her to do so, there must be a
reasonable certainty to incite the consequence. Having
regard to the dying declaration and suicide note of the
deceased along with all other circumstances of the case, it
has further held that offence under Section 306 not made
out. Merely because accused is found guilty under Section
498-A, he should not necessarily be held to be guilty
under Section 306 on the basis of the same evidence.
(iii) The Hon'ble Supreme Court in Ude Singh,
observed that in cases of alleged abetment of suicide,
there must be cogent and convincing proof of direct or
indirect act(s) of incitement to the commission of suicide.
Mere allegation of harassment of the deceased by another
person would not suffice unless there be such action on
the part of accused which compels the person to commit
suicide; and such an offending action ought to be
proximate to the time of occurrence. It further held that
whether a person has abetted in the commission of suicide
by another or not, can only be gathered from the facts and
circumstances of each case. Psyche,
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sensitivity/hypersensitivity of victim, are relevant and
material considerations and 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 accused and deceased.
(iv) Similarly in M.Mohan, the Hon'ble Supreme
Court held that abetment involves mental process of
instigating or intentionally aiding a person in doing of a
thing. There should be clear mens rea to commit offence
under Section 306 and it requires commission of direct or
active act by accused which led deceased to commit
suicide seeing no other option and such act must be
intended to push victim into a position that he commits
suicide.
(v) In M.Arjunan, the Hon'ble Supreme Court held
that for abetment of suicide, essential ingredients of
offence under Section 306 I.P.C. are abetment and
intention of accused to aid or instigate or abet deceased to
commit suicide. However, insulting deceased by using
abusive language will not, by itself, constitute abetment of
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suicide. There should be evidence capable of suggesting
that accused intended by such act(s) to instigate deceased
to commit suicide. Unless ingredients of
instigation/abetment to commit suicide are satisfied,
accused cannot be convicted under Section 306 I.P.C. -
(vi) In Mariano, the Hon'ble Supreme Court held
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 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 I.P.C. is not
sustainable. It further held that each suicide is a personal
tragedy that prematurely takes the life of an individual and
has a continuing ripple effect, dramatically affecting the
lives of families, friends and communities. However, the
Court of law while adjudicating is not to be guided by
emotions of sentiments but the dictum is required to be
based on analysis of facts and evidence on record.
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(vii) In Shabbir Hussain, the Hon'ble Supreme
Court held that mere harassment without any positive act
on part of accused proximate to time of occurrence which
led to suicide would not amount to offence under Section
306. No other material is present on record indicating
abetment. Hence, High Court did not commit any error in
allowing criminal revision of accused/respondent Nos.2 to
4 herein.
(viii) In Mohit Singhal, the Hon'ble Supreme Court
held that to attract first clause of Section 107 I.P.C, there
must be instigation in some form on part of accused to
cause deceased to commit suicide. Hence, accused must
have mens rea to instigate deceased to commit suicide
and act of instigation must be of such intensity that it is
intended to push deceased to such a position under which
he or she has no choice but to commit suicide. Such
instigation must be in close proximity to act of committing
suicide.
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16. In the light of the ratio in the above decisions
let me examine the case set forth by the prosecution.
Though the incident took place on 19.06.2013, and at the
immediate available opportunity complainant gave a
complaint stating that for reasons unknown deceased
Mumtaz has committed suicide after pushing her children
into the Netravathi river, on 23.06.2013, he has chosen to
file a complaint at Ex.P5 stating that later he came to
know that for some reason accused was constantly
harassing and telling deceased Mumtaz that he do not
want her and children and they should die by jumping into
well or a river and he came to know that she has told
these facts to her mother and sister. Fearing that she may
not have a good life, deceased Mumtaz has committed
suicide along with her children. He has found a death note
left by deceased Mumtaz and producing the same.
17. Based on the complaint dated 23.06.2013, the
concerned police have registered case in Cr.No.221/2013
against the accused. They have also seized the death note
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through mahazar at Ex.P6. After completing investigation
charge sheet is filed against accused for the offence
punishable under Section 498-A and 306 I.P.C.
18. During the course of his evidence complainant
has reiterated the complaint averments and that he came
to know about the accused harassing and abetting
deceased Mumtaz to commit suicide along with children
and she used to reveal this fact to her mother and sister
over phone. Though in the complaint he has stated that he
came to know about it subsequent to giving the report at
Ex.P1, during his cross-examination he has stated that he
was aware of the said fact about two years prior to the
incident. If this is true, there was no impediment for him
to file the complaint immediately after the incident.
19. On this aspect, PW-2 Zohara, who is the mother
of deceased Mumtaz has deposed that whenever deceased
Mumtaz used to visit their house, she was disclosing the
fact of accused harassing and telling her to die with
children. It has come in the evidence that two days prior
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to the incident deceased Mumtaz and children visited her
house and at that time also she came to know that
accused called her and repeated to go and die along with
children and therefore, she was in a very pensive mood.
However, during her cross-examination, PW-2 has
deposed that deceased Mumtaz never told her about the
fact of accused harassing her, but disclosed the said fact
to her another daughter. When questioned as to when she
came to know about alleged harassment, PW-2 has stated
that once accused visited their house and at that time
assaulted deceased Mumtaz and when she questioned him
he gave reply saying that it is none of her business. As
admitted by her, she has not disclosed the said fact to
anyone.
20. PW-3 Naaz Parveen is the sister of deceased
Mumtaz and daughter of PW-1 and 2. She has also
deposed that accused was harassing the deceased Mumtaz
and telling her to die along with children and she was
confiding said fact to her and she used to pacify her.
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However, during her cross-examination, she has deposed
that she never brought this fact to the notice of her
parents or brother.
21. From the examination of evidence of PW-1 to 3,
it is doubtful whether at any point of time deceased
Mumtaz told them that accused was harassing her and
repeatedly telling her to die along with children. If the
incident as narrated by PW-2 and 3 had occurred it would
be natural for the family members to come to know about
the same. In fact PW-3 would have informed her parents
about the constant harassment given by the accused and
that he was instigating her to die along with her children.
Even where it is accepted that PW-3 had not disclosed the
fact of harassment by accused to her parents earlier, at
least on the date of incident, she could have told them and
in that event complaint would have been filed at the
earliest implicating the accused. The very conduct of the
complainant in giving a report that for some unknown
reason deceased Mumtaz has committed suicide by
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pushing her children into Nethravathi river and after lapse
of four days, he would come up with different story
creates doubt as to the veracity of his claim.
22. Though the complainant has stated that he
found the death note in the house of accused, neither the
prosecution nor the defence counsel in the cross-
examination elicited any information as to where exactly it
was found and having regard to the fact that at the time
of incident accused was in Saudi Arabia, whether the
remaining members of his family were available in the
house or not etc.. For reasons best known to him, the
Investigating Officer has not chosen to send the death
note for examination by the handwriting expert to prove
that it is in the handwriting of deceased Mumtaz. In fact
the perusal of the death note indicate that throughout the
same, the deceased go on stating that her husband was
loving her despite repeatedly saying that he married her
for the sake of his sister though he never liked her.
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Nowhere in the death note, she states that accused told
her to die along with children.
23. The death note reveal that she was very much
hurt by the fact that accused told her that he never
wanted to marry her and repeatedly told her the said fact.
She has sought to be pardoned for taking the extreme
step of killing herself and children as she don't want them
to become burden on the accused and his family
members. She don't want accused and his family
members to spend for her last rituals and the same should
be conducted at her parents' house by selling the gold
belonging to her.
23.1 Time and again she states that it is a sin to
commit suicide, but still she is taking extreme step as she
don't want her and her children to be burden on her
parents. She also states that she don't want to be her life
as that of her parents. It is elicited in the cross-
examination of PW-1 that his wife had given complaint
against him alleging that he is having relationship with
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other women, etc. and it appears in this context the
deceased Mumtaz has stated that she did not want her life
to be like that of her parents.
24. In this case the brother of deceased Mumtaz
whose wife is the sister of accused has given evidence as
DW-1 stating that he was working in Saudi Arabia along
with accused and he was supposed to come to India on
the coming Sunday and deceased Mumtaz called accused
and informed him that she is going to her parents house
and when accused told her that since DW-1 is reaching
India on Sunday, it is sufficient for her to go to her
parents house on Sunday after which she disconnected the
call, did not pick up the phone though called repeatedly
and later they came to know that she has committed
suicide along with her children.
25. Examination of oral and documentary evidence
placed on record in the light of ratio of the Hon'ble
Supreme Court in the above cited decisions, it is evident
that the prosecution has failed to prove that deceased
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Mumtaz was being harassed and instigated and abetted by
the accused to commit suicide along with children and the
suicide committed by deceased Mumtaz after pushing her
children into the Nethravathi river is a result of such
abetment. Examining the oral and documentary evidence
placed on record in right perspective the trial Court has
come to a correct conclusion that the accused has not
committed the alleged offence.
26. On re-appreciation of the same, this Court finds
no justifiable grounds to interfere with the conclusions
arrived at by the trial Court. In the result, the appeal fails
and accordingly, the following:
ORDER
i) Appeal filed by the State under Section 378
(1) and (3) of Cr.P.C. is dismissed.
ii) The impugned judgment and order dated
29.01.2018 in S.C.No.112/2014 on the file
of III Addl.District and Sessions Judge,
D.K.Mangaluru is confirmed.
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iii) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
