State by Honnali Police Station Vs Halasiddappa

THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 22.07.2015 IN S.C.NO.130/2012 PASSED BY THE II ADDL. DIST. AND S.J., DAVANAGERE ACQUITTING THE RESPONDENTS FOR THE OFFENCES P/U/S 498-A,306 R/W 34 OF IPC.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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The State has preferred this appeal against the judgment dated 22.07.2015 passed in S.C.No.130/2012 by the learned II Additional District and Sessions Judge at Davangere (for brevity, “ the learned Sessions Judge ”), wherein the learned Sessions Judge has acquitted the accused for the offence punishable under Section 498A, 306 r/w 34 of IPC.

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The factual matrix of the prosecution case is as follows:

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Respondent No.1 - accused No.1 and deceased Roopa @ Guthemma were husband and wife. Their marriage was solemnized on 27.05.2005. The deceased Roopa did not conceive for a period of 2 years, as such, the accused started to harass her both physically and mentally and subjected her to cruelty by forcing her to give consent for second marriage. When she did not agree for the same, all the respondent-accused started to harass her both physically and mentally. Due to intolerable harassment, Roopa committed suicide on 03.06.2012 in between 3.30 and 4.00 p.m. at her matrimonial home.

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Thereafter, the father of deceased-Roopa one Hucchappa lodged the complaint against the accused on 04.06.2012 before Honnahalli Police Station as per Ex.P3 and the same has been registered in Crime No. 143/2012 dated 04.06.2012 as per Ex.P8 for the offence punishable under Section 306 r/w 34 of IPC.

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Subsequently, PW.15 the Police Inspector of Honnalli

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Police Station conducted investigation and laid charge

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sheet against accused for the offences punishable under Section 498A, 306 r/w 34 of IPC before the committal Court.

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Pursuant to committal of case before the Sessions Court, the learned Sessions Judge, after securing the presence of accused, framed the charges against the accused for the aforesaid offences, read over the same to the accused, who pleaded not guilty and claims to be tried.

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In order to prove the charges leveled against the accused, the prosecution, in all, examined 15 witnesses as P.Ws.1 to 15 so also got marked 13 documents as Exs.P1 to P13 and got identified 1 material object as per M.O.1.

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Though the defence has not examined any witness, got marked 2 documents as Exs.D1 and D2.

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On assessment of oral and documentary evidence,

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the learned Sessions Judge acquitted the accused for the offences charged against them. Questioning the same, the State is in appeal.

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I have heard Sri M.R.Patil, the learned HCGP for the appellant-state and Sri D.P.Mahesh, the learned counsel for accused - respondent Nos.1 to 5.

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The primary contention of the learned HCGP is that the judgment under this appeal totally suffers from perversity and illegality. The learned Sessions Judge has acquitted the accused by misinterpreting the evidence and based on surmises and conjectures. He further contended that the death of Roopa in the matrimonial home is not in dispute. The evidence of PW.3-complainant i.e. the father of the deceased, PW.5-brother of the deceased and PW.8uncle of the deceased categorically establishes that the accused have harassed the deceased both physically and mentally and abetted her to commit suicide without leaving any option to her. All these witnesses have unequivocally deposed that since the deceased had not conceived for a period of 2 years after marriage, the accused started to harass her both physically and mentally to give consent for the second marriage of accused No.1.

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The said aspect was informed by the deceased to her father and brother i.e. PWs.3 and 5 respectively. The evidence of these witnesses further corroborated by the mahazar witness and the Investigation Officer - PW.15.

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According to the learned HCGP, since the suicidal death caused in the matrimonial home, the accused are duty bound to explain as to what was the circumstance forced her to commit suicide. Since there is no such explanation offered by the accused, the presumption could be drawn by the Court under Section 113B of the Indian Evidence Act, 1872 for the guilt of the accused. These aspects of the matter are not properly appreciated by the learned Sessions Judge. Hence, the impugned judgment is liable to be set aside by convicting the accused for the charges leveled against them. Accordingly, he prays to allow the appeal.

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Refuting the above submissions, the learned counsel for respondents-accused submitted that the learned Sessions Judge, after meticulously examining the evidence

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on record, passed a well reasoned judgment, which does not call for any interference at the hands of this Court.

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He further contended that the suicidal death of the

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deceased at the matrimonial home itself is not a ground to believe that on account of the abetment of the accused, the deceased has committed suicide. On perusal of evidence of PWs.3, 5 and 8, it could be gathered that their evidence are quite contradictory and inconsistent with each other in respect of alleged harassment and abetment. PW.3 categorically admitted in his evidence that, he does not know the contents of Ex.P3-complaint and the same has written by somebody else and lodged after one day. The inordinate delay in lodging the Ex.P3 has not been explained by PW.3. Further PWs.3, 5 and 8 admitted that the deceased often used to visit their house and during that time, accused No.1 also used to visit their house and he was in good terms with the deceased. He further contended that, during the course of Ex.P2-spot panchanama, the police have seized Ex.D2-death note

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written by the deceased before committing suicide. In the said death note, the deceased clearly stated that she has voluntarily committing suicide and the accused are not responsible for the same. However, the prosecution has not produced the said death note in the evidence. That itself shows that at the instance of PWs.3 and 5, the appellant-Police filed a false charge sheet against the accused. All these aspects are dealt in detail by the learned Sessions Judge. Hence, interference in the impugned judgment does not call for. Accordingly, he prays to dismiss the appeal.

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I have given my anxious consideration on the arguments advanced by the counsel for the respective parties, so also carefully perused the evidence and documents placed before me. The points that would arise for my consideration are:

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1. Whether the judgment under this appeal suffers from any perversity or illegality?

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2. Whether the learned Sessions Judge is justified in acquitting the accused for the offences they have been charged?

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The relationship of accused and deceased and the suicidal death of the deceased-Roopa in the matrimonial home are not disputed by the accused. Nevertheless, to prove the same the prosecution has examined PW.12Doctor, who conducted autopsy on the body of deceased and issued postmortem report–Ex.P10 and the inquest panchanama-Ex.P1. Hence, the question for consideration is whether the accused harassed the deceased in the matrimonial home and thereby abetted her to commit suicide. To prove these charges the prosecution predominantly relied on the evidence of PWs.3, 5 and 8. Among these witnesses, PW.3, being the father of the deceased set the criminal law into motion by lodging the complaint-Ex.P3.

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On careful perusal of Ex.P3, the same has been lodged on 04.06.2012 i.e. next day of the suicidal death of

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deceased. Further, the contents of Ex.P3 reveals that since the deceased had not begotten child for a period of 2 years after marriage, the accused made preparations to perform second marriage to accused No.1. They also requested PW.3 and his family members to permit them to perform the second marriage to accused No.1. For which, PW.3 and his family members had consented. It is pertinent to mention at this juncture that till the death of deceased, accused No.1 had neither contracted the second marriage nor made any preparation to that effect by searching or finalizing alliance. Further, there is no exact date or period forthcoming in the complaint when accused No.1 or others requested PW.3 and his family members for the second marriage of accused No.1.

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Be that as it may, P.W.15 - Investigation Officer in his evidence admitted that he had seized Ex.D2 - death note from the spot. However, the same was not produced by the prosecution in the evidence of any of the witnesses. During the course of cross examination of PW.15, Ex.D2

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was marked. On careful examination of Ex.D2, it reveals that Roopa committed suicide on her own will without any such harassment meted by the accused.

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The death note is not disputed by the prosecution. In such circumstance, the contents of Ex.D2 deserve to be examined along with the evidence of witnesses and other materials placed by the prosecution. PWs.3, 5 and 8 have stated in their evidence that the deceased often used to visit their house and during that time, accused No.1 also used to visit their house and he was in good terms with the deceased. Except the allegation of performing second marriage to accused No.1, admittedly no other reason for harassment is forthcoming in the charge sheet material. Further, there are clear contradictions and omissions forthcoming in the evidence of PWs.3, 5 and 8. In such circumstance, on overall perusal of the evidence and documents on record, the prosecution has failed to successfully prove the harassment and the abetment made

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by the accused to the deceased to drive her away to commit suicide.

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It is settled position of law by the Hon’ble Apex Court in catena of judgments that in order to prove the guilt of the accused for the offence punishable under Section 306 of IPC, there has to be clear mens rea to commit offence and it requires active act or direct act which leads deceased to commit suicide finding no other option and the fact must be such, reflecting intention of the accused to push the deceased into such a position that he or she shall commit suicide.

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The Hon’ble Apex Court in the case of MARIANO ANTO BRUNO Vs. INSPECTOR OF POLICE - 2022 Live Law

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(SC) 834 at paragraphs 36 and 38 has held as under:

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“36. To convict a person under Section 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into

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such a position that he commits suicide. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and Appellant No. 1 abetted the commission of suicide of the deceased. In the present case, both the elements are absent. 37. Now, so far as conviction under Section 498A IPC is concerned, except the statement of the prosecution witnesses PW-1 to PW-3 recorded after the incident, there is no other evidence to establish the allegation of any demand of dowry or ill treatment meted out to the deceased during her marriage. The fact that there were cordial relations between the families of Appellant No. 1 and the deceased is not disputed. The deceased committed suicide on 05.11.2014 and the complaint against the appellants were filed on 24.11.2014 i.e., 3 weeks after the death of the deceased.

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This Court has time and again reiterated that before convicting an accused 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 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

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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 their 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.”

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In such circumstances, it cannot be said that any offence of abetment to commit suicide is made out against the accused even though it was committed in matrimonial home.

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Nevertheless, this being an appeal against acquittal,

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the Hon’ble Apex Court in the case of H.R. SUNDARA

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AND OTHERS VS. STATE OF KARNATAKA - (2023) 9

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SCC 581 , summarized the principles to exercise the power by the Appellate Court to interfere with the order of the Sessions Court in paragraph No.9 as under:

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“9 . Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate Court is to find out whether the verdict which is under challenge is correct or

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incorrect in law and on facts. The Appellate Court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the Appellate Court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After reappreciating the oral and documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless the Appellate Court also concludes that it was the only possible conclusion. Thus, the Appellate Court must see whether the view taken by the Trial Court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the Trial Court is a possible view, the Appellate Court cannot interfere with the order of acquittal on the ground that another view could have been taken. ”

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By applying the above ratio laid down by the Hon’ble Supreme Court, in my considered view, the learned Sessions Judge has taken plausible view and acquitted the accused from the charges leveled against them. As such, the interference in the impugned judgment does not call for. Accordingly, I answer point No.1 in the negative and point No.2 in the affirmative. In the result, the appeal is

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dismissed .

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SD/(RAJESH RAI K) JUDGE

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PKS List No.: 1 Sl No.: 1

State by Honnali Police Station v. Halasiddappa

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State by Honnali Police Station v. Halasiddappa

Case brief

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