Karnataka High Court
Smt Prema vs State Of Karnataka on 4 November, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 54 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 54 OF 2013
BETWEEN:
1. SMT. PREMA
W/O SHIVAMADASHETTY
AGED 28 YEARS.
2. BASAVALINGE GOWDA @
SHIVALINGE GOWDA @ KUNTA
S/O BASAVEGOWDA
AGED 34 YEARS.
APPELLANTS 1 AND 2 ARE
RESIDENTS OF HONNALAGERE VILLAGE
MADDUR TALUK
MANDYA DISTRICT.
Digitally signed
by HEMAVATHY ...APPELLANTS
GANGABYRAPPA
Location: HIGH (BY SRI A N RADHA KRISHNA, ADVOCATE)
COURT OF
KARNATAKA
AND:
STATE OF KARNATAKA
BY K.M. DODDI POLICE
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUIDLINGS
BANGALORE - 560 001.
...RESPONDENT
(BY SRI B LAKSHMAN, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
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CRL.A No. 54 of 2013
SENTENCE DATED 01.01.2013 PASSED BY THE ADDITIONAL
S.J., MANDYA IN S.C.No.57/2011 ACQUITTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 306 R/W 34 OF IPC AND ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by appellants - accused
Nos.1 and 2 against the judgment of conviction and order
on sentence dated 01.01.2013 passed in S.C. No. 57/2011
by the Additional District and Sessions Judge, Mandya,
convicting appellants - accused Nos.1 and 2 for offence
punishable under Section 306 of IPC and sentencing
accused No.1 to undergo rigorous imprisonment for a
period of 3 years and accused No. 2 to undergo rigorous
imprisonment for a period of 4 years and to pay fine of
Rs.5,000/- each and in default to undergo imprisonment
for a period of 8 months for accused No. 1 and 10 months
for accused No. 2.
2. Factual matrix of the case is that appellants -
accused Nos.1 and 2 were having illicit relationship and for
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that the deceased - Shivamadashetty - husband of
accused No. 1 used to object. There used to be quarrels
between accused No. 1 and her husband. Inspite of that,
accused No.1 continued illicit relation with accused No. 2.
On 10.07.2010, at about 04.00 pm, accused No. 2, in
front of house of the deceased, called the deceased and
asked him to die so that they both will live happily and
insulted the deceased. Therefore, the deceased committed
suicide in the night of 15.07.2010 by hanging to a tree by
using plastic rope and towel and committed suicide.
Charge has been famed against the appellants - accused
Nos.1 and 2 for offence under Section 306 read with
Section 34 of IPC. In order to prove the charge the
prosecution has examined 10 witnesses as P.W.1 to
P.W.10 and got marked Ex.P.1 to Ex.P.10 and material
objections as M.O.1 to M.O.10. Statement of the accused
persons came to be recorded under Section 313 of Cr.P.C.
The trial Court after hearing arguments formulated points
for consideration and passed the judgment of conviction
and order on sentence.
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3. Heard arguments of learned counsel for
appellants - accused Nos.1 and 2 and learned HCGP for
respondent - State.
4. Learned counsel for appellants - accused Nos.1
and 2 would contend that P.W.1, P.W.4 to P.W.7 are
related to each other and they are interested witnesses.
There is political rivalry between P.W.1 and accused No. 2
as accused No.2 did not support him in the election.
Merely having illicit relationship and quarrelling with the
deceased does not amount to abetment as defined under
Section 107 of IPC. Persons who are residing in the
neighborhood of the house of the deceased and accused
No.1 have not been examined. As there was enmity
between P.W.1 and accused No. 1 with regard to a quarrel
and accused No. 1 had consumed poison, a false case
came to foisted by P.W.1 against the accused persons.
Date and time of panchayat alleged to have been held with
regard to the illicit relationship between appellants -
accused Nos.1 and 2 has not been stated by any of the
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witnesses and panchayatdaars are not examined. He
further submits that entire evidence on record will not
establish that the appellants - accused Nos.1 and 2
abetted the deceased to commit suicide. Merely because
the accused persons asked the deceased to go and die
does not amount to abetment. Without considering all
these aspects learned Sessions Judge has erred in
convicting the appellants. With this he prayed to allow the
appeal and acquit the appellants.
5. Learned HCGP appearing for the respondent -
State argued that the trial Court on proper appreciation of
the evidence on record has rightly convicted the
appellants. He has supported the reasons assigned by the
trial Court. He has further argued that evidence of P.W.1,
P.W.2, P.W.4 to P.W.7 is sufficient to convict the
appellants for the offence alleged against them. On these
grounds he sought for dismissal of the appeal.
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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 appellants - accused Nos.1 and 2 for offence
under Section 306 of IPC?"
7. My answer to the above point is in the
Affirmative for the following reasons:
The deceased Shivamadashetty is the husband of
accused No. 1. There is an accusation that accused No. 1
had illicit relationship with accused No. 2. With regard to
the said illicit relationship there used to be quarrels
between accused No.1 and her husband - deceased
Shivamadashetty. It is stated by the witnesses that
panchayat was held with regard to the said illicit
relationship between accused Nos.1 and 2. None of the
panchayatdars have been examined with regard to the
panchayat held. Date of the said panchyat is also not
stated by the prosecution witnesses.
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8. It is alleged that accused persons asked the
deceased to go and die and they will live happily. Whether
the said aspect amounts to abetment is required to be
considered.
9. 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."
10. 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 instigated another to
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an act when he actively suggests or stimulates him to act
by means of language, direct or indirect, whether it takes
the form of express solicitation, or of hints, insinuation or
encouragement.
11. The Hon'ble Apex Court in the case of Sanju
alias Sanjay Singh Sengar Vs Sate of M.P reported in
2002 (5) SCC 371 has 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.........."
12. The Hon'ble Apex Court in the case of Chitresh
Kumar Chopra Vs State (Government of NCT of
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Delhi) reported in 2009 (16) SCC 605 has 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.
19. As observed in Ramesh Kumar,
where the accused by his acts or by a
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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 the necessary
concomitant of instigation.
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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 self-protection or an
escapism from intolerable self."
13. How a human mind reacts has been observed
by the Hon'ble Apex Court in the case of Ude Singh and
Other Vs State of Haryana reported in 2019 (17) SCC
301 wherein it is observed as under:
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"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. Hence, each case is required to
be dealt with on its own facts and
circumstance."
14. 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
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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.
15. The Hon'ble Apex Court in the case of the 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 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."
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16. The Hon'ble Apex Court in the said decision 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".
17. The Hon'ble Apex Court in the case of M.
Arjuna Vs. State, reported in 2019 (3) SCC 315 has
observed as under:
""8. 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
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satisfied, accused cannot be convicted
under section 306 I.P.C."
18. P.W.1 - brother of the deceased, P.W.4 -
younger brother of the deceased, P.W.5 - wife of P.W.1,
P.W.7 - son of P.W.1 have deposed that the deceased was
upset with the illicit relationship of accused No.1 with
accused No. 2. The act of accused persons having illicit
relationship does not amount to abetment to commit
suicide. There should be evidence capable of suggesting
that accused persons intended, by specific acts, to
instigate the deceased to commit suicide. Unless the
ingredients of instigation/abetment to commit suicide are
satisfied, the accused cannot be convicted for offence
punishable under Section 306 of IPC.
19. P.W.8 has stated that she came to know that
accused No. 2 assaulted the deceased 15 days prior to the
deceased committing suicide and the deceased told her
about the same. If accused No. 2 had assaulted the
deceased, the option open for the deceased was to file a
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complaint and not to commit suicide. Accused Nos. 1 and
2 had not intended that the deceased should commit
suicide. Merely because the accused persons asked the
deceased to go and die so that they can life happily will
not amount to abetment. It appears, that the deceased
was sensitive as his wife - accused No. 1 had illicit
relationship with accused No. 2 and upset by that, he
might have committed suicide. The evidence on record will
not establish that the accused persons, by their acts,
abetted the deceased to commit suicide. Without
considering all these aspects the learned Sessions Judge
has erred in convicting the accused persons for offence
punishable under Section 306 of IPC.
20. In view of the above, the following;
ORDER
i. The appeal is allowed.
ii. The judgment of conviction and order on sentence
dated 01.01.2013 passed in S.C. No. 57/2011 by the
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Additional District and Sessions Judge, Mandya, is set
aside.
iii. The appellants - accused Nos.1 and 2 are acquitted
for offence under Section 306 read with Section 34
of IPC.
iv. The appellants - accused Nos.1 and 2 are entitled for
refund of the fine amount, if any, paid by them.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
