Dismissed

Sri B K Gangadhar v. State by Peenya Police Station

Karnataka HC5 Oct 2023CRL.RP/270/2022

Case brief

AI extract

What is this about?

This Criminal Revision Petition challenged a Trial Court's order dismissing an application for discharge under Section 306 IPC. The High Court upheld the discharge refusal, holding that prima facie materials, including the deceased's diary, evidenced instigation and abetment, satisfying the threshold for trial.

What did the court decide?

Criminal Revision Petition dismissed; order dated 31.12.2021 confirming the Trial Court's order. IA.1 of 2023 disposed off.

Sri B K Gangadhar Vs State by Peenya Police… — Murder and Culpable Homicide | Karnataka HC (2023)

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NC: 2023:KHC:37737 CRL.RP No. 270 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA CRIMINAL REVISION PETITION NO. 270 OF 2022

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BETWEEN:

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Digitally signed by PAVITHRA N Location: High Court Of Karnataka

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SRI B K GANGADHAR, S/O KRISHNAPPA, AGED ABOUT 46 YEARS, R/AT NO. 846, 16TH CROSS, 1ST PHASE, BEHIND GANESHA TEMPLE, NEAR WATER TANK, KUMARASWAMY LAYOUT, BENGALURU-560062.

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…PETITIONER

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(BY SRI. S. KALYAN BASAVARAJ.,ADVOCATE)

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AND:

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STATE BY PEENYA POLICE STATION, PEENYA, BENGALURU-560058, REP BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-560001.

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…RESPONDENT

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(BY SRI. CHANNAPPA ERAPPA.,ADVOCATE)

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THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED 31.12.2021 PASSED IN S.C.NO.1200/2018 BY THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-53) PRODUCED AT ANNEXURE-A AND DISCHARGE THE PETITIONER OF THE OFFENCE P/U/S.306 OF IPC REGISTERED BY THE RESPONDENT, PEENYA POLICE IN CR.NO.171/2017.

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NC: 2023:KHC:37737 CRL.RP No. 270 of 2022

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THIS CRIMINAL REVISION PETITION, COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The accused in S.C.No.1200/2018 on the file of the learned LII Additional City Civil and Sessions Judge, Bangalore(CCH-53) (hereinafter referred to as 'the Trial Court' for brevity), is impugning the order dated 31.12.2021 passed on the application filed under Section 227 of Cr.P.C, seeking his discharge for the offence punishable under Section 306 of Indian Penal Code (for short 'the IPC').

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Brief facts of the case are that, the complainant filed the first information with Peenya Police Station against accused Nos.1 to 3 alleging commission of offence punishable under Section 306 read with Section 34 of IPC. After investigation, the charge sheet came to be filed under Section 306 of IPC against the petitioner who is arrayed as accused No.1, while dropping accused Nos.2 and 3 in the FIR.

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It is the contention of the prosecution that, the deceased was in love with one Namratha, who is the relative of the petitioner and in that connection, the petitioner had

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summoned the deceased to his house and criminally intimidated that he would see that the deceased is assaulted by rowdies and will be put behind bars. The petitioner had abetted and instigated the deceased to commit suicide, as result of which, the deceased committed suicide by hanging himself in his room, by leaving a death note dated 15.02.2017. The death note was recovered from the scene of occurrence. Therefore, the charge sheet came to be filed against the accused alleging commission of offence punishable under Section 306 of IPC.

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The accused has filed an application under Section 227 of Cr.P.C. seeking his discharge for the above said offence. The application was opposed by the prosecution. The Trial Court after taking into consideration all the materials available on record, proceeded to dismiss the said application vide order dated 31.12.2021, which is being impugned herein.

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Heard Sri S Kalyan Basavaraj, learned counsel for the revision petitioner and Sri. Channappa Erappa, learned High Court Government Pleader for respondent/State. Perused the materials including the Trial Court records.

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Learned counsel for the revision petitioner

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contended that the prosecution is relying on the death note said to have been written by the deceased. Even if the said death note is to be taken into consideration, the deceased has repeatedly stated that, he himself is responsible for his death. There is no imputation against the petitioner in the entire diary of the deceased, which is considered as death note. Under such circumstances, Section 306 of IPC cannot be invoked against the petitioner. None of the ingredients of the said Section is available against the petitioner. There are absolutely no materials to constitute the offence and therefore the accused is to be discharged under Section 227 of Cr.P.C.

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Learned counsel places reliance on the decision of the co-ordinate Bench of this Court in Noushad Ahmed Vs State¹ , in support of his contention that mere allegations made in the death note against the accused, would not be sufficient to come to the conclusion that the petitioner has committed the offence punishable under Section 306 of IPC. He also places reliance on the decision of the Hon'ble Apex Court in

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1 MANU/KA/7803/2019

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Gurcharan Singh Vs The State of Punjab² to contend that,

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to attract Section 306 of IPC, mens-rea on the part of the accused has to be established. When there are nothing on record to establish the mens-rea on the part of the accused, he is liable for discharge. He further places reliance on the decision of Hon'ble Apex Court in Sanju Alias Sanjay Singh Sengar Vs State of M.P.³ , in support of his contention that mere uttering some words by the accused to the deceased would not amount to either abetment or instigation to attract Section 306 of IPC. He also placed reliance on the decision of the co-ordinate Bench of this Court in S Sadashivappa Vs State and Others⁴ , to contend that, when there is no link connecting to the act of the accused and the death of the deceased and further when there are no materials to constitute mens-rea for the accused to instigate the deceased to commit suicide, Section 306 of IPC cannot be invoked and therefore, the petitioner is entitled to be discharged.

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Learned counsel further submitted that the Trial

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Court without considering any of these settled position of law

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2 (2020) 10 SCC 200

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3 (2002) 5 SCC 371

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4 2021 (6) KarLJ 564

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NC: 2023:KHC:37737 CRL.RP No. 270 of 2022

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proceeded to dismiss the application filed under Section 227 of Cr.P.C. Therefore, the said order is liable to be set aside. Accordingly, he prays for allowing the petition.

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Per contra, learned High Court Government Pleader

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opposing the revision petition submitted that, there are sufficient materials including the death note of the deceased. Under such circumstances, the petitioner is not entitled for any relief. Accordingly, he prays for dismissal of the revision petition.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

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"Whether the revision petitioner has made out any grounds to allow the petition and whether the impugned order passed by the Trial Court suffers from infirmities and calls for interference by this Court?"

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My answer to the above point is in the ‘Negative’ for the following:

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REASONS

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It is the contention of the prosecution that the deceased was in love with one Kumari Namrutha, who is the relative of the petitioner. Therefore, the petitioner had summoned the deceased to his house and criminally intimidated that he will be beaten by rowdies. The petitioner has instigated the deceased, as a result of which, he committed suicide by hanging. It is stated that the deceased had left behind a diary, which was written in his own handwriting, where there is a reference to the petitioner and said Kumari Namrutha. The deceased also said to have written about the reason for taking extreme steps of committing suicide. The copy of the diary produced before this Court runs into several pages and at multiple places, there is reference to the petitioner stating that he is responsible for his death. However, at one place the name of the petitioner is striked off and it is stated that he himself is responsible for his death. The handwriting found in the diary which is treated as death note was forwarded to handwriting expert i.e., Truth Labs Forensic Services, to compare the admitted writings with that of the writings in the diary. The report of the expert discloses that he

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is the opinion that the person who wrote the standard writings marked as S1 and S2 also wrote the questioned writings marked as Q1. Therefore, there cannot be any dispute to the fact that the deceased himself has written the diary on various dates which runs into several pages.

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The contention of the learned counsel for the petitioner is that, even if the reference of the petitioner in the dairy is to be taken into consideration, the deceased has specifically stated that he himself is responsible for his own death. Therefore, no offence could be attributable to the petitioner as there was no abetment or instigation in the diary.

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The decision of the co-ordinate Bench of this Court in Noushad Ahmed (supra) refers to granting of bail to the accused for the offence punishable under Section 306 of IPC. The observations made by the co-ordinate Bench of this Court cannot be made applicable to seek discharge of the accused.

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In Gurcharan Singh (supra) , the Hon'ble Apex Court considered the judgment of acquittal passed by the Trial Court for the offence punishable under Section 306 of IPC and other offences and held that the mens-rea on the part of the

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accused regarding abetment as specified under Section 107 of IPC is to be established by the prosecution. However, it is stated that the state of mind to commit a particular crime must be visible to determine the culpability. In order to prove mensrea, there has to be something on record to establish or show

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that the accused had a guilty mind and in furtherance of that state of mind, he abetted the suicide of the deceased. Even though, the observation regarding the requirement of abetment and mens-rea on the part of the accused to constitute the offence punishable under Section 306 of IPC could be taken into consideration, it is to be noticed that the decision was delivered by the Hon'ble Apex Court in a case of acquittal of the accused after full-fledged trial.

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15. In Sanju Alias Sanjay Singh Sengar (supra) , the

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Hon'ble Apex Court considered the order passed by the High Court under Section 482 of Cr.P.C. quashing the criminal proceedings under Section 306 of IPC and held that humiliating the deceased by abusive language and asking him 'to go and die' by itself does not constitute the ingredient of instigation.

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The co-ordinate Bench of this Court in S Sadashivappa (supra) , again acting under the inherent jurisdiction of the Court under Section 482 of Cr.P.C. quashed the criminal proceedings for the offence punishable under Section 306 of the IPC, holding that in terms of Section 306 of IPC, whoever abets a particular thing as defined under Section 107 of IPC would become punishable under Section 306 of the IPC. Section 107 of IPC mandates that a person abets doing of a thing and instigates any person to do so, engages with one or more other person in any conspiracy for doing such a thing, intentionally aids by any Act or illegal omission of doing that thing. Therefore, for the offence punishable under Section 306 of IPC for abetment of suicide, the ingredients under Section 107 of IPC are to be present in a given case. In the absence of same, the Court could not quash the criminal proceedings.

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In the present case, this Court is not acting under Section 482 of Cr.P.C., before filing charge sheet. The petitioner has filed an application under Section 227 of Cr.P.C. seeking discharge. As per Section 227 of Cr.P.C., if the Court upon consideration of the records of the case and after hearing both the parties considers that there is no sufficient grounds for

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proceeding against the accused, it shall proceed to discharge the accused. Therefore, the accused will have to establish that there are no sufficient grounds for proceeding against the accused on the basis of available records and then only the accused can seek discharge.

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Section 306 of IPC refers to abetment of suicide. Whoever abets the commission of suicide is punishable under this Section. It is settled position of law that, to attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary.

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It is relevant to refer to Section 107 of IPC, which refers to abetment of a thing, instigation of a person to do that thing or engages with one or more other person or persons in any conspiracy for doing of that thing and in pursuance of that conspiracy, an act or illegal omission takes place or intentionally aids, by any act or illegal omission, for doing of that thing, a person is said to be abetting of doing a thing.

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In the present case, the father of the deceased lodged the first information alleging commission of the offence in question. The prosecution is relying on the writings in the

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diary written by the deceased on day-to-day basis, till his death. To prove abetment, instigation and mens-rea on the part of the accused. It has also cited several witnesses to speak about the intention of the accused. The handwriting in the diary is said to be of the deceased, which is supported by the opinion of the handwriting expert.

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Now, the question arises as to whether the accused had the required mens-rea and abetted the commission of suicide. As I have already noted, the diary which is considered as death note runs into several pages. There is specific reference to the petitioner who had threatened and instigated the deceased with dire consequences. Prima facie, such threatening with an intention to drive the deceased to commit suicide has achieved its object of driving the deceased to commit suicide. Therefore, there are prima facie materials to constitute the offence under Section 306 of IPC as the ingredients of abetment and instigation on the part of the accused with required mens-rea.

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It is only after full-fledged trial, the Trial Court has to form an opinion as to whether the same is sufficient to

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constitute the offence under Section 306 of IPC and the accused can be convicted or is to be acquitted. But at this stage, it is suffice to say that there are sufficient materials to constitute the offence in question. When there are sufficient materials to constitute the offence, Section 227 of Cr.P.C. cannot be invoked. Therefore, I am opinion that the petitioner is not entitled for discharge under Section 227 of Cr.P.C.

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I have gone through the impugned order passed by the Trial Court. It has taken into consideration all the materials that are placed by the prosecution and has arrived at a right conclusion. I do not find any grounds to interfere with the same. Accordingly, I answer the above point in the Negative and proceed to the following:

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ORDER

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(i) The Criminal Revision Petition is dismissed. (ii) The order dated 31.12.2021 passed in S.C.No.1200/2018 on the file of the learned LII Additional City Civil and Sessions Judge, Bangalore(CCH-53) is hereby confirmed.

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