Karnataka High Court
Dharmaiah vs The State Of Karnataka on 10 January, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1011 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1011 OF 2012
BETWEEN:
1. DHARMAIAH
S/O SANNADEVAIAH
AGED ABOUT 48 YEARS
R/O BYABA VILLAGE
KASABA HOBLI, ALUR TALUK
HASSAN DISTRICT - 573 213.
2. SMT. SANNAMMA
W/O DHARMAIAH
AGED ABOUT 38 YEARS
R/O BYABA VILLAGE
KASABA HOBLI, ALUR TALUK
HASSAN DISTRICT - 573 213.
3. SANTOHSH
S/O DHARMAIAH
AGED ABOUT 23 YEARS
Digitally signed by R/O BYABA VILLAGE
LAKSHMINARAYANA
MURTHY RAJASHRI KASABA HOBLI, ALUR TALUK
Location: HIGH HASSAN DISTRICT - 573 213.
COURT OF
KARNATAKA
4. MANJU @ MANJUNATHA
S/O KALAIAH
AGED ABOUT 30 YEARS
R/O BYABA VILLAGE
KASABA HOBLI, ALUR TALUK
HASSAN DISTRICT - 573 213.
5. KALAIAH
S/O NINGAIAH
AGED ABOUT 63 YEARS
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CRL.A No. 1011 of 2012
R/O BYABA VILLAGE
KASABA HOBLI, ALUR TALUK
HASSAN DISTRICT - 573 213.
6. KALAIAH
S/O PUTTAIAH
AGED ABOUT 68 YEARS
R/O BYABA VILLAGE
KASABA HOBLI, ALUR TALUK
HASSAN DISTRICT - 573 213.
7. SMT. LAKSHMAMMA
W/O KALAIAH
AGED ABOUT 53 YEARS
R/O BYABA VILLAGE
KASABA HOBLI, ALUR TALUK
HASSAN DISTRICT - 573 213.
8. CHANNAVEERAIAH @ CHANNAGIRAIAH
S/O ERAIAH
AGED ABOUT 48 YEARS
R/O BYABA VILLAGE
KASABA HOBLI, ALUR TALUK
HASSAN DISTRICT - 573 213.
9. DYAVAPPA
S/O DYAVAIAH
AGED ABOUT 41 YEARS
R/O BYABA VILLAGE
KASABA HOBLI, ALUR TALUK
HASSAN DISTRICT - 573 213.
10. VIRUPAKSHA
S/O KOMARAIAH
AGED ABOUT 45 YEARS
R/O BYABA VILLAGE
KASABA HOBLI, ALUR TALUK
HASSAN DISTRICT - 573 213.
...APPELLANTS
(BY SRI UMESH P B, ADVOCATE
SRI R B DESHPANDE, ADVOCATE)
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CRL.A No. 1011 of 2012
AND:
THE STATE OF KARNATAKA
BY ALUR POLICE STATION - 573 213.
...RESPONDENT
(BY SRI M DIVAKAR MADDUR, HCGP)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE CONVICTION AND SENTENCE DATED 5/9/2012
PASSED BY THE ADDITIONAL SESSIONS JUDGE, HASSAN IN
S.C. No.172/2009 - CONVICTING THE APPELLANTS-1, 3 & 4/
ACCUSED -1, 3 & 4 FOR THE OFFENCES P/U/S.143, 506, 306
R/W.149 OF IPC AND CONVICTING APPELLANTS-2, 5 TO 10/
ACCUSED-2, 5 TO 10 FOR OFFENCES P/U/S.143 & 506
R/W.149 OF IPC.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by accused Nos.1 to 10, praying
to set-aside the judgment of conviction dated 05.09.2012
passed in S.C.No.172/2009, by the Additional Sessions
Judge, Hassan. Appellant Nos.1, 3 and 4 / accused Nos.1,
3 and 4 have been convicted for the offences under
Sections 143, 506 and 306 r/w Section 149 of the Indian
Penal Code, 1860 (for short hereinafter referred to as
'IPC'); appellant Nos.1 to 10 / accused Nos.1 to 10 have
been convicted for the offences under Sections 143 and
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506 r/w Section 149 of IPC; appellant Nos.1 to 10 have
been sentenced to pay fine of Rs.1,000/- each, in default,
to undergo simple imprisonment for a period of one month
for the offence under Section 143 r/w Section 149 of IPC
and further sentenced to undergo simple imprisonment for
six months and to pay fine of Rs.1,000/- each and in
default, to undergo simple imprisonment for a period of
one month for the offence under Section 506 r/w Section
149 of IPC. The appellant Nos.1, 3 and 4 / accused Nos.1,
3 and 4 were sentenced to undergo simple imprisonment
for a period of five years and pay fine of Rs.10,000/- each
and in default, to undergo simple imprisonment for a
period of six months for the offence under Section 306 of
IPC.
2. The brief facts of the prosecution case are as under;
The deceased Sri.Somashekhara was in love with the
daughter of accused No.1, namely Smt.Anitha. Later on,
the deceased was asked to marry Smt.Anitha, but he has
refused. Therefore, the parents of Anitha convened the
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Panchayath on 07.12.2008 and in that Panchayath, it was
decided that the deceased should marry Anitha and also
forced and threatened the deceased to marry Anitha.
Thereafter, on 08.12.2008, at about 1.00 pm., the
deceased Sri.Somashekhara committed suicide in his land
by consuming poison due to harassment and threat and
defame caused by the accused persons. Charge sheet
came to be filed against the appellants - accused Nos.1 to
10 and case has been committed to the Sessions Court.
The Sessions Court has framed the charges against the
appellants for the offences under Sections 143, 506 and
306 r/w 149 of IPC.
3. In order to prove the charge, the prosecution has
examined twelve witnesses as PWs.1 to 12 and got
marked Exs.P1 to P7 and MOs.1 and 2. The Trial Court
after hearing the arguments on both sides has formulated
the points for consideration and convicted the appellants
for the offences and sentenced them as noted above. The
said judgment of conviction and order of sentence has
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been challenged by the appellants - accused Nos.1 to 10
in this appeal.
4. Heard learned counsel for the appellants and learned
High Court Government Pleader for the respondent -
State.
5. Learned counsel for the appellants would contend
that as there was a love affair between the daughter of
accused No.1, namely Anitha and the deceased
Sri.Somashekhar. The accused being the parents and the
relatives of Anitha have asked the deceased
Sri.Somashekhar to marry Anitha and as he refused to
marry her, a Panchayath has been convened. In the
Panchayath, the Panchayath members also asked the
deceased Sri.Somashekhar to marry Anitha. He contends
that merely the accused persons asking and threatening
the deceased to marry Anitha, does not amount to
abetment to commit suicide. He contends that the
deceased was in love with Anitha and his parents asked
the deceased not to marry Anitha and therefore, upset
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with the same, he might have committed suicide. He
contends that the evidence on record is not sufficient to
establish the ingredients of Sections 306 and 506 of IPC.
The accused persons have participated in the Panchayath
and therefore, there is no any unlawful assembly by the
accused persons. He contends that PW4 - brother of the
complainant - PW1 has deposed that they have agreed to
perform the marriage of the deceased Sri.Somashekhar
with Anitha - the daughter of accused No.1, in the said
Panchayath. PW7 in the cross examination has stated that
he is one of the member in the Panchayath held in the
village, where Anitha - the daughter of accused No.1 came
and told that she is in love with the deceased
Sri.Somashekhar and she went along with him and
therefore, he advised Sri.Somashekhar to marry the
daughter of accused No.1. He contends that even the
police were present at the time of Panchayath and no
complaint is made by PW1 to the police regarding the
threat by the accused persons to the deceased to take his
life. The Trial Court without appreciating the evidence on
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record properly, has erred in convicting the appellants -
accused.
6. Learned High Court Government Pleader argued that
the Trial Court on proper appreciation of the evidence on
record has rightly convicted the appellants - accused
persons. He has supported the reasons assigned by the
Trial Court. He further argued that the evidence of PWs.1,
3, 4, 5 and 11 is sufficient to convict the appellants for the
offences levelled against them. He contends that there
are no grounds for setting aside the impugned judgment.
On these grounds, he sought for dismissal of the appeal.
7. 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
appellants - accused for the offences under
Sections 143, 149, 306 and 506 of IPC?"
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8. My answer to the above point is in the affirmative for
the following reasons;
It is not in dispute that the deceased
Sri.Somashekhar committed suicide on 08.12.2008 by
consuming Organophosphorus insecticide and his dead
body was found in his land. Ex.P3 is the inquest mahazar
and Ex.P4 is the Postmortem report. PW8 - doctor has
conducted the post-mortem examination on the dead body
of the deceased and issued report as per Ex.P4, opining
that the death of the deceased was due to asphyxia as
result of consuming Organophosphorus insecticide.
9. It is the case of the prosecution that there was a love
affair between Anitha - the daughter of accused Nos.1 and
2 and the deceased Sri.Somashekhar. On coming to
know, the accused Nos.1 and 2 met the father (PW1) and
mother (PW3) of the deceased Sri.Somashekhar and
asked them to perform the marriage of the deceased
Sri.Somashekhar with Anitha. In that regard, a
Panchayath was convened in the village which was held on
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07.12.2008. In the said Panchayath, the accused persons
who were present, have forced and threatened the
deceased to marry Anitha - the daughter of accused Nos.1
and 2. The deceased Sri.Somashekhar refused to marry
Anitha. Even the Panchayath members have advised the
deceased Sri.Somashekhar to marry the daughter of
accused Nos.1 and 2. It is alleged that as there was force
and threat by the accused persons to the deceased
Sri.Somashekhar to marry Anitha, he committed suicide
on 08.12.2008 and it is alleged that the accused persons
abetted commission of suicide by the deceased. Whether
forcing and threatening the deceased by the accused
persons to marry the daughter of accused Nos.1 and 2
amounts to abetment or not, is required to be ascertained.
10. The parameters of abetment have been stated in
Section 107 of IPC, which defines abetment of a thing as
follows;
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"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.
As per the section, a person can be said to have
abetted in doing a thing, if he, firstly, 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 to
Section 107 of IPC states that any wilful
misrepresentation or wilful concealment of material fact
which he is bound to disclose; may also come within the
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contours of "abetment". It is manifest that under all the
three situations, direct involvement of the person or
persons concerned in the commission of offence of suicide
is essential to bring home the offence under Section 306
IPC.
As per the clause, firstly in the said section, a person
can be said to have abetted in doing of a thing, who
"instigates" any person to do that thing. The word
"instigate" is not defined in IPC. Meaning of the said word
was considered by the Hon'ble Apex Court in Ramesh
Kumar v. State of Chhattisgarh reported in (2001) 9
SCC 618. In the said case, the Hon'ble Apex Court has
held that instigation is to goad, urge, forward, provoke,
incite or encourage to do "an act". To satisfy the
requirement of "instigation", though it is not necessary
that actual words must be used to that effect or what
constitutes "instigation" must necessarily and specifically
be suggestive of the consequence. Yet a reasonable
certainty to incite the consequence must be capable of
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being spelt out. Where the accused had, by his acts or
omission or by a continued course of conduct, created
such circumstances that the deceased was left with no
other option except to commit suicide, in which case, an
"instigation" may have to be inferred. A word uttered in a
fit of anger or emotion without intending the
consequences to actually follow, cannot be said to be
instigation.
11. The Hon'ble Apex Court in the case of Chitresh
Kumar Chopra Vs. State (Government of NCT of
Delhi) reported in (2009) 16 SCC 605, has observed
thus;
"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.).
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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.
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, an "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
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(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 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 his inner subjective experience of
mental pain, fear and loss of self-respect. Each of
these factors are crucial and a exacerbating
contributor to an individual's vulnerability to end his
own life, which may either be an attempt for self-
protection or an escapism from intolerable self."
12. The Hon'ble Apex Court in the case of Ude Singh
and Others Vs. State of Haryana reported in (2019)
17 SCC 301, has observed thus;
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"15. Thus, "abetment" involves a mental process of
instigating a person in doing something. A person
abets the doing of a thing when:
i) he instigates any person to do that thing; or
(ii) he engages with one or more persons in
any conspiracy for the doing of that thing; or
(iii) he intentionally aids, by acts or illegal
omission, the doing of that thing.
These are essential to complete the abetment as a
crime. The word "instigate" literally means to
provoke, incite, urge on or bring about by persuasion
to do anything.
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
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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."
In the above Ude Singh's case (supra), the Hon'ble
Apex Court has also observed as follows;
"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, 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.
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Hence, each case is required to be dealt with on its
own facts and circumstances."
13. The Hon'ble Apex Court in the case of Amalendu Pal
Alias Jhantu Vs. State of West Bengal reported in
(2010) 1 SCC 707, has observed thus;
"12. Thus, this Court has consistently taken the view
that before holding an accused guilty of an offence
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 the 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 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 IPC is not
sustainable.
13. In order to bring a case within the purview of
Section 306 IPC there must be a case of suicide and
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in the commission of the said offence, the person
who is said to have abetted the commission of
suicide must have played an active role by an act of
instigation or by doing certain act to facilitate the
commission of suicide. Therefore, the act of
abetment by the person charged with the said
offence must be proved and established by the
prosecution before he could be convicted under
Section 306 IPC."
14. The Hon'ble Apex Court in the case of M.Mohan Vs.
State represented by the Deputy Superintendent of
Police reported in (2011) 3 SCC 626, has observed
thus;
"44. 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.
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
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option and this act must have been intended to
push the deceased into such a position that he/she
committed suicide."
In the said M.Mohan's case (supra), the Hon'ble Apex
Court has also observed that "Human sensitivity of each
individual differs from person to person. Each individual
has his own idea of self-esteem and self-respect. Different
people behave differently in the same situation."
15. "A person may attempt to commit suicide due to
various reasons such as depression, financial difficulties,
disappointment in love, tired of domestic worries, acute or
chronic ailments and so on and need not be due to
abetment." 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.
16. A word uttered in a fit of anger or emotion without
intending the consequences to actually follow, cannot be
said to be instigation.
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17. The accused persons being the parents and relatives
of Anitha intended that the deceased Sri.Somashekhar to
marry Anitha, as he had love affair with her. There was
no intention on their part to drive out the deceased
Sri.Somashekhar, to commit suicide. The said acts of the
accused persons does not drive the deceased
Sri.Somashekhar to commit suicide. A person may
commit suicide due to various reasons. It is the defence
of the accused persons that, as the parents of the
deceased Sri.Somashekhar refused for his marriage with
Anitha, upset with that, he might have committed suicide.
The said defence has some force looking to the facts and
circumstances of the case. Even PW7 - one of the
Panchayath member and the other Panchayath members
asked the deceased Sri.Somashekhar to marry Anitha.
The said Panchayath members have not been arraigned as
accused persons. Merely because the accused persons
forced and threatened the deceased to marry Anitha, it
does not amount to abetment to commit suicide.
Therefore, the Trial Court has erred in convicting the
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appellants - accused Nos.1, 3 and 4 for the offence under
Section 306 of IPC.
18. PW1, in his evidence has stated that accused Nos.3
and 4 forced the deceased to marry Anitha or otherwise
they will kill him. PW1 has not alleged that the other
accused have threatened the deceased to kill him.
PW3 - wife of PW1 and mother of the deceased has
deposed that all the accused persons have threatened the
deceased to kill him. There is a contradiction in the
evidence of PWs.1 and 3 with regard to the accused
persons threatening the deceased to take his life. The
evidence of PWs.1 and 3 is not corroborated by the other
evidences. PW4 -brother of PW1, PW7 - member of the
Panchayath, PW11 - uncle of the deceased have not
stated regarding the threat given by the accused persons
to take life of the deceased. Therefore, the evidence on
record is not sufficient to convict the appellants - accused
Nos.1 to 10 for the offence under Section 506 of IPC. The
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Trial Court has erred in convicting the appellants for the
offence under Section 506 r/w Section 149 of IPC.
19. Accused Nos.1 to 10 who are the appellants herein
have gathered in the village on 07.12.2008 in the
Panchayath. They gathered there to attend the
Panchayath held regarding the marriage of the deceased
Sri.Somashekhar with Anitha - the daughter of accused
Nos.1 and 2. Therefore, assembling of accused Nos.1 to
10 in the Panchayath is not an unlawful assembly.
Therefore, the Trial Court has erred in holding that the
appellants have committed the offences under sections
143 and 149 of IPC. In view of the above, the appellants
are required to be acquitted for the offences under
Sections 143, 149, 306 and 506 of IPC. In the result, the
following;
ORDER
The appeal is allowed. The impugned judgment of
conviction and order of sentence dated 05.09.2012 passed
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by the Additional Sessions Judge, Hassan in
S.C.No.172/2009 is set-aside. The appellants are acquitted
for the offences under Sections 143, 149, 306 and 506 of
IPC.
Sd/-
JUDGE
GH
