Allowed

Smt. Jayamma W/O Laxmegowda v. State of Karnataka

Karnataka HC8 Aug 2023CRL.A/65/2012

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, holding that the appellant's abusive words and threat to file a complaint did not amount to abetment of suicide under Section 306 IPC. The Court found no evidence of intent to instigate suicide, quashing the conviction and sentencing.

What did the court decide?

The judgment of conviction and sentence set aside; apparent accused acquitted; fine refunded.

Smt. Jayamma W/O Laxmegowda Vs State of… — Murder and Culpable Homicide | Karnataka HC (2023)

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1 - NC: 2023:KHC:28070 CRL.A No. 65 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL NO. 65 OF 2012

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BETWEEN:

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SMT. JAYAMMA, W/O LAXMEGOWDA, AGED ABOUT 50 YEARS, R/O BANDANAHALLI VILLAGE, CHUNCHANAKATTE HOBLI, K.R NAGAR TALUK, MYSORE DISTRICT.

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…APPELLANT

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(BY SRI. K.L. SREENIVAS AND SRI. V.N. MADHAVA REDDY, ADVOCATES)

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AND:

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA, REPRESENTED BY K.R.NAGAR POLICE, MYSORE DISTRICT.

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…RESPONDENT

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(BY SRI. S.VISHWA MURTHY, HCGP)

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THIS CRL.A. IS FILED U/S.374 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:24.12.11 PASSED BY THE II ADDL. S.J., MYSORE IN S.C.NO.129/10 - CONVICTING THE APPELLANT - ACCUSED FOR THE OFFENCE P/U/S 306 OF IPC. AND THE APPELLANT - ACCUSED IS SENTENCED TO UNDERGO

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R.I. FOR THREE YEARS AND TO PAY FINE OF RS.5,000/- AND IN DEFAULT OF PAY FINE, TO UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE P/U/S 306 OF IPC.

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed against the judgment of conviction and order of sentence dated 24.12.2011 passed in S.C No.129/2010 by the II Additional Sessions Judge, Mysore, convicting the appellant - accused for the offence punishable under Section 306 of IPC, sentencing to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/- in default to pay fine, to undergo simple imprisonment for 3 months.

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2. The factual matrix of the case is that:-

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The appellant - accused is working as Anganawadi worker in K.R. Nagar Taluk. She is permanent resident of Bandahalli. The complainant Smt.Ningamma is also residing in Bandahalli Village just opposite to the house of the accused and both the houses are separated by

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common road. The accused is also owned vacant space by the side of the house of the complainant. Kum.Harini, aged about 18 years is the daughter of the complainant Smt.Ningamma W/o Jayanna.

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On 14.10.2009 at about 3 p.m. complainant’s daughter Kum.Harini, was carrying tobacco sticks (koole) on her head, but the powder of the same fell over the rice which was put on the said road by the accused for the purpose of drying. This made the accused to pick up the quarrel with Kum.Harini, stating that she has spoiled the wet rice which she had spread for drying. She picked up the quarrel, started abusing her in filthy language and said that instead of living she should die. Unable to bear those insulting words, the deceased - Harini also got frightened and consumed pesticide which was kept in her house for the purpose of using the same to tobacco crop, this was at about 6 p.m. She consumed the said Organo phosphorous pesticide in the cattle shed of her house and became indisposed. The complainant's another daughter Rajini

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having noticed the same, alerted her grand mother who went towards to the complainant, by that time the father of the deceased - Harini also returned from his work, shifted the deceased - Harini to K.R. Nagar Government Hospital for treatment.

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On the next day on the recommendation of the Medical Officer of K.R. Nagar Government Hospital, deceased - Harini was shifted to K.R. Hospital, Mysore for treatment. On 15.10.2009 at about 1:15 p.m. Kum.Harini died. The mother of the deceased filed a complaint which came to be registered in Crime No.250/2009 of K.R. Nagar Police for the offence punishable under Section 306 of IPC, after investigation charge sheet came to be filed against the appellant - accused for the offence punishable under Section 306 of IPC. Thereafter, case came to be committed to the Sessions Court.

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The prosecution examined 12 witnesses as PW.1 to PW.12 and got marked Ex.P.1 to P.16.

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Thereafter, the statement of the appellant - accused came

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to be recorded under Section 313 of Cr.P.C.

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After hearing the arguments of both sides the Sessions Court formulated the points for consideration and convicted the appellant - accused for offence punishable under Section 306 of IPC.

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The said judgment of conviction and order of

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sentence has been challenged by the appellant/ accused.

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Heard the arguments of learned counsel for the

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appellant and the learned High Court Government Pleader for the respondent-State.

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Learned counsel for the appellant would contend that, PW.1 the mother of the deceased has filed a complaint as per Ex.P1 stating that, she was present in the house at the time of incident, but, on looking to her cross examination, she was not there in the house at the time of incident. There are material contradictions in evidence of PW.2 and 3 who are the sister and grandmother of the

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deceased respectively. One of the eyewitness i.e., PW.4 has not supported the case of the prosecution. There was enmity between the family of the accused and the family of the deceased. Therefore, the false case came to be foisted against the appellant - accused and there was no any intention on the part of the appellant - accused to drive out the deceased - Harini to commit suicide. The alleged words used by the appellant - accused to the deceased does not amount to abatement to commit suicide attracting the offence punishable under Section 306 of IPC. There is no instigation or abatement by the appellant - accused which had driven the deceased to commit suicide. Mere, use of abusive words by the appellant - accused not by self sufficient to constitute offence punishable under Section 306 of IPC. On that point, the learned counsel for the appellant has placed reliance on the decision of Hon’ble Apex Court in the case of M. Arjunan vs. State reported in AIR 2019 SC 43

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wherein in para No.8 is held as under:

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"8 . 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 trial Court has not appreciated the evidence

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on record properly and erroneously held that, the appellant - accused abused the deceased - Harini and threatened her to file complaint amounts to abatement to commit suicide. With this he prayed to allow the appeal.

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The learned High Court Government Pleader argued that, the Trial Court on proper appreciation of the evidence on record has rightly convicted the appellant -

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accused. He has supported the reasons assigned by the Trial Court. He has further argued that, the evidence of PW.1 to 3 is sufficient to convict the appellant - accused for the offence punishable under Section 306 of IPC. Considering the said aspects, the Trial Court has rightly convicted the appellant - accused by the impugned judgment. There are no grounds for setting aside the judgment. With this he prayed to dismiss the appeal.

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On the grounds made out and considering the arguments advanced, the following point arises for my consideration:

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Whether the trial Court erred in convicting the appellant - accused for the offence punishable under Section 306 of IPC?

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My answer to the above point is in affirmative for the following reasons:

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The deceased - Harini was aged about 18 years

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and she is the daughter of PW.1 who has filed a complaint as per Ex.P1. The deceased - Harini committed suicide by

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consuming Organo phosphorous pesticide which was kept in her house, she consumed the same on 14.10.2009 and she died in the hospital on 15.10.2009.

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Ex.P.2 is the inquest mahazar. In Ex.P.2 there is a mention in column No. 11 that the deceased – Harini consumed pesticide and died in the hospital on 15.10.2009 and she has committed suicide. The Doctor who conducted postmortem examination over the dead body of the deceased – Harini has issued postmortem report – Ex.P.14. The Doctor who conducted postmortem emanation has opined that death of deceased – Harini was due to consumption of organo phosphorous insecticide. Therefore, death of deceased – Harini is suicidal. It is also not in dispute that the deceased – Harini committed suicide.

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The question that arises is, whether the appellant – accused abetted the deceased – Harini to commit suicide and the words used by the appellant –

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accused to the deceased – Harini have driven the deceased – Harini to commit suicide and there was an intention on the part of the appellant – accused to drive out the deceased – Harini to commit suicide?

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It is the evidence of P.W.2 and P.W.3 that while the deceased – Harini was carrying Tobaco sticks on her head, the powder of the same fell over the wet Rice which was put on the road by the appellant – accused for the purpose of drying and for that the appellant – accused picked up quarrel with the deceased – Harini saying that she has spoiled the wet Rice, abused her in filthy language and said that instead of living she should die. It is further evidence of P.W.2 and P.W.3 that the appellant – accused dragged the deceased – Harini and told that she will take her to the house of Gowda and file Police complaint against her including her mother. It is their further evidence that due to the said act of appellant – accused the deceased – Harini with fear has consumed pesticide and committed suicide. The above said evidence clearly

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goes to show that the quarrel between the appellant – accused and the deceased – Harini is regarding a silly aspect of damaging the wet rise of the appellant – accused. Whether the said quarrel and the appellant – accused asking the deceased – Harini to consume poison and die amounts to abetment or not?

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Abetment has been defined in Section 107 of IPC which reads thus:

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107. Abetment of a thing .- A person is said abet the doing of a thing who

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First - Instigates any person to do that thing; or

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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

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Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.

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

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Learned counsel for appellant - accused has placed reliance on the decision of the Hon’ble Apex Court

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in the case of M. Arjuna Vs. State reported in AIR 2019 SC 43 wherein it is held as under:

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“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

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to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C.”

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The appellant – accused intimidating and scolding the deceased for damaging the wet Rice and asking her to die and thereafter the deceased – Harini committing suicide does not amount to abetment.

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In the case of Vedprakash Bhaiji Vs. State of M.P. reported in 1995 Crl.L.J. 893 it is held as under:

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“Where the prosecution case prima facie revealed that the accused persons intimidated and goaded the deceased that if he does not repay the loan advanced to him, he will have to face with dire consequences and immediately thereafter he committed suicide, it could not be said that the accused persons provoked, incited, urged or encouraged the deceased to commit suicide. A person is said to “instigate” another to an act, when he actively suggests or stimulates him to the act by any means of

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language, direct or indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement. The word ‘instigate’ means to goad or urge forward to provoke, incite, urge encourage to do an act. The accused persons merely goaded him to refund or repay the amount advanced by them to him. They never intended that the deceased should commit suicide. On the other hand they wanted the loan advanced by them to the deceased to be repaid by him for the said purpose it was at least needed, if not essential, that deceased should live. There is no question of abetment by conspiracy. No aid was provided by the accused to commit suicide. It also cannot be said that deceased was left with no other option but to commit suicide. The deceased could have lodged a report against the said persons who had allegedly tortured him. Therefore, even accepting the prosecution case to be absolutely correct and true could not be said that a prima facie case for alleged commission of offence under S.306 read with S.34 is made out. The prosecution is liable to be quashed. S. 113A of the Evidence Act cannot be invoked in such case.”

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Learned HCGP has contended that the appellant – accused telling the deceased to go and die by consuming pesticide amounts to abetment.

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The appellant – accused telling the deceased to go and die itself does not constitute the ingredient of instigation. In the case of Sanju alias Sanjay Singh Sengar Vs. State of M.P. reported in 2002 Crl.L.J. 2796 it is held that the quarrel between the accused and deceased and the accused telling the deceased to go and die, that itself would not constitute ingredient of instigation. The presence of mens rea is necessary concomitant of instigation. The appellant - accused merely quarrelling with the deceased – Harini, abusing her, asking her to die does not amount to abetment as there is no mens rea on the part of the appellant – accused to drive out the deceased to commit suicide. The appellant – accused should have knowledge or intention that the deceased will commit suicide. On looking to the averments of the complaint – Ex.P.1 and evidence of

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P.W.1 to P.W.3 there is no allegation that appellant – accused had knowledge or intention to the effect that the deceased – Harini will commit suicide.

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The Hon’ble Apex Court in the case of State of

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West Bengal Vs. Indrajit Kundu and others, Crl.A.

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No. 2181/2009 has observed as under:

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“16. The judgment relied on by learned counsel for the State in the case of Chitresh Kumar Chopra vs. State (NCT) of Delhi, 2009 (16) SCC 605 this Court has held that 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. To draw the inference of instigation it all depends on facts and circumstances of the case, whether the acts committed by the accused will constitute direct or indirect act of incitement to the commission of suicide is a matter which is required to be considered in facts and circumstances of each case. As such we are of the view that the judgments relied on by the learned counsel for

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the State would not assist in supporting his arguments.”

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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 the case on hand there is no continued course of conduct of the appellant – accused which created such circumstances that the deceased – Harini was left with no other option except to commit suicide.

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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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A woman 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

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

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Haryana reported in AIR 2014 SC 178 .

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On considering the evidence on record, there is no evidence to show that appellant – accused had an intention to drive out the deceased - Harini to commit suicide by her abusive words and asking her to die. Looking from any angle the act of the appellant – accused abusing the deceased – Harini for damaging the wet Rice and asking her to die does not amount to abetment. Therefore, learned Sessions Judge has committed an error in holding that the act of the appellant – accused amounts to abetment to the deceased – Harini to commit suicide.

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In the result, the following;

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O R D E R

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