Dismissed

State of Karnataka v. Parvathamma

Karnataka HC11 Feb 2021CRL.A/497/2011

Case brief

AI extract

What is this about?

In this criminal appeal, the State challenged the acquittal of accused persons under Section 306 and 34 IPC for abetment of suicide. The High Court upheld the acquittal, holding that prosecution evidence failed to prove active instigation, harassment, or mental cruelty proximate to the death required to establish guilt.

What did the court decide?

The appeal was dismissed; the impugned order of acquittal by the District and Sessions Judge was upheld.

State of Karnataka Vs Parvathamma — Murder and Culpable Homicide | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF FEBRUARY, 2021

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BEFORE

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THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR

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CRIMINAL APPEAL NO.497 OF 2011 (A)

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BETWEEN:

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STATE OF KARNATAKA, BY KOTE POLICE,

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CHITRADUGA.

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...APPELLANT

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(BY SRI K NAGESHWARAPPA, HCGP)

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AND:

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PARVATHAMMA, W/O M.R.BASAVARAJAPPA, AGED ABOUT 51 YEARS, BHOVI BY CASTE, HOUSE HOLD WORK, R/O CHOLAGUDDA, CHITRADURGA.

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MANJUNATHASWAMY. M.B., @ MANJUNATHA, S/O M.R.BASAVARAJAPPA, AGED ABOUT 27 YEARS, BHOVI BY CASTE, ENGINEER, III MAIN, V CROSS, DESHAPANDE NAGAR, HUBLI, NATIVE CHOLAGUDDA, CHITRADURGA.

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R.NAGESH, S/O RUDRESHAPPA, AGED ABOUT 34 YEARS, LINGAYITHARU BY CASTE, AGRICULTURIST, MUDDINAKOPPA, V.BENAVALLI POST, HARANAHALLY HOBLI, SHIMOGA TALUK & DIST.

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…RESPONDENTS

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(BY SRI R B DESHPANDE, ADVOCATE FOR R1-R3)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT DT: 24.12.10 PASSED BY THE PRL. DIST., AND S.J., CHITRADURGA IN S.C.NO.11/10 – ACQUITTING THE RESPONDENT FOR THE OFFENCE P/U/S 306 R/W 34 OF IPC.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING THROUGH PHYSICAL HEARING:

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JUDGMENT

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This appeal is filed by the State challenging the judgment

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and order of acquittal dated 24.12.2010 passed in S.C.No.11/2010 by the Prl.District and Sessions Judge, Chitradurga, for the offence punishable under Section 306 read with 34 of IPC.

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The case of the prosecution in nutshell is that on the complaint filed by the brother of the deceased by name Srinivas son of Ramappa, the Police have registered the case. The allegations are that his younger brother Gurumurthy aged about 24 years was having love affair with the girl by name Manjula, daughter of Basavarajappa. When the complainant and his family members came to know about the same, they went to the house of the accused Basavarajappa to negotiate for marriage of his brother with the daughter of Basavarajappa, but he refused to perform the marriage of his daughter with complainant’s brother. After 15 days, the said girl Manjula informed the victim Gurumurthy that her parents are likely to perform her marriage with some other boy. On getting the said information, Gurumurthy took the girl Manjula with him and they were residing in the house of Nagrajappa S/o.Basavanthappa at Mathigatta village, Holalkere. Thereafter, accused No.1-Basavarajappa approached the complainant and took his daughter on the assurance of performing her marriage with the victim and shifted her to Hubli. On hearing the said information, the complainant’s brother Gurumurthy went to

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Hubli with an intention to marry her, But on 05.01.2009 evening at about 7:30 p.m. the accused persons called Gurumurthy to their house and informed him to give Rs.5,00,000/- (Rupees Five Lakhs only) to marry their daughter and instigated him to consume poison to end his life, if he cannot pay the amount. On account of the said abetment, complainant’s brother viz., Gurumurthy, committed suicide by consuming poison. Immediately, he was shifted to District Hospital, Chitradurga, and later he was shifted to SS Hospital, Davanagere, but he died on 07.01.2009.

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On registering the case, Police have conducted investigation and submitted the charge sheet against the accused Nos.1 to 4 for the offence punishable under Section 306 read with Section 34 of IPC.

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After committal of the case, the accused appeared

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and charges were framed. The accused denied the charges and claimed for trial. The prosecution has examined 11 witnesses as P.Ws.1 to 11 and got marked the documents as per Exs.P-1 to P-7 and material object is marked as M.O.1. The statement

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under Section 313 was recorded and the accused have denied the incriminating circumstances. On appreciating the oral and documentary evidence placed on record, the trial Court has acquitted all accused of the offence punishable under Section 306 read with 34 IPC. Being aggrieved by the said order, the State has preferred the appeal.

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Heard learned High Court Government Pleader for the appellant-State and learned counsel for the respondentaccused, perused the records.

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Learned High Court Government Pleader would contend that accused Nos.1 to 4 have caused harassment to the complainant’s brother Gurumurthy as he was having love affair with the daughter of accused No.1 and they have also instigated him to end his life by consuming poison, if he cannot pay Rs.5,00,000/- for marrying Manjula. The main cause for suicide by the deceased is instigation by accused Nos.1 to 4. The evidence of complainant and P.Ws.2 to 5 clearly goes to show that on account of harassment caused by the accused and threat given by them the deceased was compelled to commit

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suicide, but the trial Court has failed to appreciate the entire oral and documentary evidence placed on record. On the basis of the evidence given by the complainant-P.W.1 and P.Ws.2 to 5, it is a fit case to record the judgment of conviction and sentence.

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Per contra, learned counsel for the respondent-

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accused submits that there is a delay of two days in filing the complaint. The girl by name Manjula, who was having love affair with deceased Gurumurthy, was not shown in the charge sheet witness and not examined before the Court. There is no direct evidence to show that the accused have caused harassment and have instigated the complainant’s brother to end his life by consuming poison. The deceased was a rowdy sheeter and he had also assaulted accused No.1 with the knife. The accused Nos.1 to 4 are not at all responsible for the suicide committed by the deceased. There is no death note or dying declaration to prove that on account of the harassment caused by the accused, the deceased has ended his life by committing

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suicide. Thus, there are no valid grounds for setting aside or to interfere with the judgment of acquittal.

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In view of submission of learned HCGP and learned

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counsel for the accused, the only point that arises for consideration is:

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i. Whether the trial court was justified in acquitting the accused?

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The present appeal is against the order of acquittal.

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In such a case, as observed by the Apex Court, it is well settled law that High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with the order of acquittal, merely because two views are possible. The interference of the High Court in such cases is governed by well established principles. According to these principles, it is only where the appreciation of evidence by the trial Court is capricious or its conclusions are without evidence, in such cases, the High Court may reverse the order of

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acquittal. The High Court will be justified in interfering where it finds that the order of acquittal is not in accordance with law.

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In a decision reported in 2010 (1) Supreme Court Cases (Cri) 896 in the case of Amalendu Pal alias Jhantu vs. State of West Bengal , the Apex Court relying on a decision reported in the case of Kishori Lal vs. State of M.P. , has observed as under:

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“6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word ‘instigate’ literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentionally aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment,

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then the offender is to be punished with the punishment provided for the original offence. ‘Abetted’ in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence”.

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Further, relying on a decision reported in the case of Kishangiri Mangalgiri Goswami vs. State of Gujarat , wherein it is observed that the Court has consistently taken the view that before holding as 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/his 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

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the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.

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In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and 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.

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The term instigation under section 107 IPC has been explained in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi, 2009(4) R.C.R.(Criminal) 196 : (2009) 16 SCC 605: (2010) 3 SCC (Crl.) 367) as follows:

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"16. Speaking for the three-Judge Bench in Ramesh Kumar case [2001(4) R.C.R.(Criminal) 537 : (2001) 9 SCC 618 : 2002 SCC (Cri) 1088], R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward,

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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 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.

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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

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Oxford Advanced Learner's Dictionary, 7th Edn.)."

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Words uttered in a fit of anger or omission without

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any intention cannot be termed as instigation.

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In Rajesh v. State of Haryana ; 2019 (1) RCR (Criminal) 9 of 16 847, it has been observed in para 8 as

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under: -

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"8. Conviction under section 306 IPC is not sustainable 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. In order to bring a case within the purview of section 306 IPC, there must be a case of suicide and 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."

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In Gurcharan Singh v. State of Punjab ; 2017 (1)

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RCR (Criminal) 118, Hon'ble Supreme Court has observed in para 28 to 30 as under : -

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"28. The pith and purport of Section 306 I.P.C. has since been enunciated by this Court in Randhir Singh v. State of Punjab 2004(4) R.C.R.(Criminal) 740 : (2004)13 SCC 129, and the relevant excerpts therefrom are set out hereunder.

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"12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve 10 of 16 that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 I.P.C.

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13. In State of W.B. v. Orilal Jaiswal, 1994(3) R.C.R. (Criminal) 186 : (1994) 1 SCC 73, this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted

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out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."

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In the present case, PW.1 is the brother of the deceased and has supported the case of the prosecution. He

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has reiterated the averments made in the complaint. In the cross examination, he has stated that no complaint was filed regarding the harassment done by the accused persons to his brother Gurumurthy. Further, he has stated that he was not present in the house at the time of deceased consuming poison and has also admitted that he did not give the complaint immediately when his brother was taken to the hospital for

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treatment. The evidence of PW.1 do not inspire the confidence to believe the prosecution version that it is only on account of the harassment or the instigation done by the accused, the deceased has committed suicide.

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P.W.2 is the friend of deceased who had taken the

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deceased to the hospital and he is also a witness for spot mahazar and seizure mahazar for recovery of poison bottle. In the cross examination, he has stated about his friendship with the deceased Gurumurthy. He has admitted that on account of harassment done by the deceased Gurumurthy to Manjula, she was sent to Hubli, which clearly indicates that it was the deceased who was causing harassment to the girl.

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P.W.3 is the neighbor of complainant and witness for

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inquest mahazar. He has stated about the love affair between Gurumurthy and Manjula. In the cross examination, he has admitted that he do not know the contents of Ex.P.3 mahazar.

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P.W.4 is the brother of deceased. He has stated

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about the harassment caused by the accused persons because

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of the love affair of his deceased brother with Manjula. In the examination in chief the witness has stated about the information said to have been given by the deceased that the accused have demanded Rs.5,00,000/- to perform his marriage with Manjula and for that reason his brother has committed suicide in front of the house of the accused as they had instigated him to end his life by consuming poison.

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P.W.5, who is the relative of the deceased, has stated about the demand made by the accused for Rs.5,00,000/- to perform the marriage of Manjula with Gurumurthy and consuming of poison by Gurumurthy on account of instigation done by the accused.

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P.W.6 is the seizure mahazar witness. P.Ws.7 and 8 are the spot mahazar witnesses at the place where the deceased Gurumurthy had consumed poison. P.W.9 is the inquest mahazar witness. The evidence of these witnesses is not of much assistance.

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P.W.10 is the Doctor, who has conducted the post mortem examination and has issued Ex.P-5 Post Mortem report. P.W.11 is the Investigating Officer, who has filed the charge sheet.

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The independent witnesses, namely, P.Ws.1, to 5, being the relatives and friends, have stated about the love affair between Gurumurthy and Manjula. But there is no direct evidence to show that the accused have harassed and instigated Gurumurthy to commit suicide if he cannot give Rs.5,00,000/to perform marriage of Manjula with him.

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As far as suicide committed by the deceased Gurumurthy is concerned, there is no dispute. The main controversy is whether the deceased committed suicide on account of mental or physical torture caused by the accused. Generally the abatement involves the mental process of instigating a person or intentionally aiding a person in doing of a thing.

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In the instant case, according to the prosecution

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witnesses, it is only on account of the demand said to have been made by the accused persons to pay Rs.5,00,000/- for marrying Manjula, or else to end life by consuming poison, cannot be treated as a mental cruelty without there being positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. It also requires an active role or direct act by the accused which compelled the deceased to commit suicide without there being any option.

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In a decision reported in 2017 (1) SCC 439 in the

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case of Gurcharan Singh vs State of Punjab , the Hon’ble Apex Court has observed as under:

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“To constitute abetment, intention and involvement of accused to aid or instigate commission of suicide is imperative – Any severance or absence of any of these constituents would militate against said indictment – Remoteness of culpable acts or omissions rooted in intention of accused to actualise the suicide would fall short of offence of abetment essential to attract S.306 IPC – Contiguity, continuity,

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culpability and complicity of indictable acts or omission are concomitant indices of abetment – S.306 IPC thus criminalises sustained incitement for suicide.

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The learned counsel for the appellant has relied on a decision reported in (2010) 1 SCC (Cri) 917 in the case of Gangula Mohan Reddy vs State of Andhra Pradesh , wherein the Hon’ble Apex Court adverting to several earlier decisions, has observed that there has to be clear mens rea to commit the offence, but in the instant case, there is no clinching evidence to prove the mens rea on the part of the accused for instigating the deceased to commit suicide.

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The evidence placed on record do not make out a case that the accused meted out to the victim had in fact induced him to end the life by committing suicide. In the present case, the evidence goes to show that the deceased victim was hypersensitive to ordinary petulance, discord and differences between the accused and the mother of the

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deceased in connection with the purchase of a property by utilizing the funds given by the mother of the deceased.

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In a judgment reported in 2019 (2) SCC (Cri) 219 in the case of M.Arjunan vs State represented by its Inspector of Police, the Hon’ble Apex Court in para No.7 has observed as under:

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“7. The essential ingredients of the offence under Section 306 IPC 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 satisfied the accused cannot be convicted under Section 306 IPC.”

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The evidence on record, in my considered opinion,

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does not demonstrate with unqualified clarity and conviction, any role of the appellant/accused. The materials on record do

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not even suggest even remotely any act of cruelty, oppression, harassment or inducement or instigation so as to persistently provoke or compel the deceased to resort to self-extinction being left with no other alternative. No such continuous and proximate conduct of the accused is forthcoming.

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On re-appreciation of evidence on record, this Court is of the opinion that the ingredients of the offence under Section 306 of IPC has not been proved. Thus, there are no grounds to interfere with the impugned order of acquittal. Accordingly, the appeal is dismissed.

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Sd/JUDGE

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BSR

State of Karnataka v. Parvathamma

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Parvathamma

Case brief

What is this about?

What did the court decide?

What the court decided

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