Allowed

J. Narsimulu v. The State of A.P.

Telangana HC9 Apr 2010CRLA/1002/2002

Case brief

AI extract

What is this about?

On appeal against a conviction for abetment of suicide under Section 306 IPC, the High Court held that the prosecution failed to prove any act of instigation, conspiracy, or intentional aiding. The trial court's finding was unsupported by evidence, so the appeal was allowed and the conviction set aside.

What did the court decide?

The conviction and sentence under Section 306 IPC were set aside; bail bonds cancelled with liberty granted if warrant unexecuted.

J. Narsimulu Vs The State of A.P. — Murder and Culpable Homicide | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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FRIDAY, THE 9^th DAY OF APRIL TWO THOUSAND AND TEN

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PRESENT

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HON’BLE SRI JUSTICE G.V.SEETHAPATHY

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Crl.A.No.1002 OF 2002

Between:-

Jollu Narsimulu

…Appellant

A n d

The State of A.P., through Public Prosecutor, High Court of A.P., Hyderabad.

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…Respondent

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HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.1002 OF 2002

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JUDGMENT:

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This appeal is directed against the judgment dated

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26-08-2002 in S.C.No.630 of 1999, on the file of the IVAdditional Sessions Judge (Fast Track Court), R.R District, wherein the

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appellant/A-1 was found guilty of the offence under Section 306 IPC and was convicted thereof under Section 235(2) Cr.P.C and sentenced to undergo rigorous

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imprisonment for three years and pay a fine of Rs.500/and in default to undergo simple imprisonment for two months.

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2. Heard the learned counsel for the appellant/accused and the learned Additional Public Prosecutor for the respondent-State. Perused the records.

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3. The case of the prosecution, in brief, is as follows:-

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The deceased Uma Devi was an intermediate student and was the daughter of the complainant-P.W.1. Two years prior

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to occurrence, she fell in love with the appellant/A-1 and they belong to the same S.C community. Both of them decided to marry each other. A-1’s family was a little richer and A-1 could not convince his mother-A-2 who was interested in extracting dowry. A-1 was postponing the proposed marriage on some pretext or the other. A-1 and deceased were, however, moving together as wife

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and husband for two years. About three months prior to the occurrence, the deceased insisted A-1 to enter into a formal marriage. A-1 reluctantly agreed and married her in Bugga Ramaswamy Temple by tying turmeric thread in the presence of Balijagudem Anthaiah

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and Balijagudem Yellaiah (L.Ws.6 and 7). Subsequently, A-1 and deceased were leading family life in the house of P.W.1 for some time. The deceased was insisting on A-1 to take her to her in-laws house and inform the relatives. A-1 put a condition that she shall bring 8 tolas of gold and also a scooter towards dowry. The deceased gave a complaint to Vikarabad Police on 18-08-1997 and a case under Section 498-A IPC was registered against A-1 and he was arrested and remanded. After releasing from jail, A-1 and his mother-A-2 started searching for a bride to perform the marriage of A-1. At that juncture, the deceased and P.W.1 went to the house of accused and objected for the proposed marriage of A-1 with another girl. After some altercation, A-1 and A-2 ultimately agreed to accept

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the deceased as wife of A-1 subject to the condition of bringing 8 tolas of gold and a scooter as dowry. The deceased pleaded inability. She was necked out of the house by A-1 and A-2. Due to humiliation, the deceased poured kerosene and set her ablaze on 02-09-1997 in the house of her mother. P.W.5 noticed the flames and cries of the deceased and informed P.W.1, the mother of the deceased and others. P.W.2 maternal uncle of the deceased and P.Ws.3 and 4 the neighbours shifted the deceased to Government Hospital, Vikarabad for treatment where she died while undergoing treatment. On the complaint-Ex.P-1 given by P.W.1 at 03-00 P.M., on 02-

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09-1997,

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a case in Cr.No.167 of 1997 under Section 304-B IPC was registered by the Sub-Inspector of Police, Vikarabad Police Station. P.W.11, the Circle Inspector of Police investigated and sent the dead body

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of the deceased for post-mortem examination to Government Hospital, Vikarabad. P.W.7, the Civil Assistant Surgeon, conducted post-mortem and opined that cause of death was due to burns. A-1 was arrested on 10-09-1997 and remanded to judicial custody on 11-09-1997. A-2 was granted anticipatory bail on 29-101997.

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4. On their appearance before the trial Court, both the accused pleaded not guilty to the charge framed under Section 304-B IPC.

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5. In support of their case, the prosecution examined P.Ws.1 to 12 and marked Exs.P-1 to P-16. M.O.1 empty tin was also marked. A-1 and A-2 were examined under Section 313 Cr.P.C.

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6. On a consideration of the evidence available on record, the learned Sessions Judge held that the prosecution failed to establish the offence under Section 304-B IPC against both the accused. However, the trial court found A-1 guilty of the offence under Section 306 IPC and convicted him for the same and imposed

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sentence as stated above. Aggrieved by the same, A-1 filed the present appeal.

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7. The learned counsel for the appellant/A-1 would contend that there was absolutely no iota of evidence to establish the ingredients of Section 306 IPC and there is absolutely no evidence to show that A-1 abetted the commission of suicide by the deceased in terms of Section 109 IPC.

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8. The learned Additional Public Prosecutor appearing for the respondent-State sought to justify the conviction and sentence imposed by the trial Court.

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9 . According to the prosecution, A-1 and deceased were living together as husband and wife for about two years and A-1 was postponing formal marriage with the deceased on some pretext or the other and on being pressurized by the deceased, A-1 tied a turmeric thread around her neck about three months prior to the incident and that the deceased was insisting on A-1 to take her to the in-laws’ house for which A-1 demanded that the deceased shall bring 8 tolas of gold and also a scooter. The prosecution further alleges that the deceased gave a complaint against A-1 alleging offence under Section 498-A IPC and A-1 was arrested and remanded and subsequent to his release from jail, A-1 was making arrangements to marry another girl and on

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coming to know of the same, the deceased and her mother-P.W.1 went to the house of the accused and objected for the proposed marriage of A-1 with another girl and A-2 agreed to accept the deceased as the wife of A-1 on condition that the deceased shall bring

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8 tolas of gold and one scooter as dowry. The prosecution further alleges that the deceased and P.W.1 pleaded their inability to give any dowry and so they were necked out of their house by the accused and unable to bear the humiliation, the deceased committed suicide by pouring kerosene. That the cause of death of the deceased due to burns caused on account of the deceased setting herself ablaze by pouring kerosene is borne out by the medical evidence on cord.

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10. Admittedly, no statement or dying declaration was recorded from the deceased. The F.I.R-Ex.P-6 was registered based on the complaint-Ex.P-1 given by P.W.1. In Ex.P-1 what all P.W.1 stated was that due to insult in the society and due to mental harassment, the deceased set herself ablaze with kerosene. Ex.P-1 is totally silent as to the nature and extent of the alleged mental harassment, which the deceased was subjected to. No specific overt acts constituting the alleged mental harassment have been attributed against the accused in Ex.P-1. There is no reference to the alleged demand of dowry by way of 8 tolas of gold and a scooter by A-1 and

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his mother-A-2 in Ex.P-1. What all alleged in Ex.P-1 is that when P.W.1 and deceased requested A-1 to marry the deceased again before the elders, he refused for the same. Ex.P-1 does not refer to

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A-1 making any arrangement for marrying another girl and on coming to know of the same, the deceased and P.W.1 going to the house of the accused and A-1 and A-2 demanding dowry for accepting the deceased as wife of A-1. Even assuming for a moment that F.I.R-Ex.P-6 need not contain all the details of the events preceding and succeeding the occurrence, at least, the testimony of P.W.1 should bring out the necessary facts that constitute the alleged offence. In the evidence P.W.1, who is none else than the mother of the deceased, deposed that after the accused returning from jail, her daughter,

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the deceased, died and she does not know how she died. She further deposed that she was suspecting A-1 that he might have killed

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the deceased, which is not the case of prosecution at all. P.W.1’s evidence is also silent as to the alleged acts of harassment on the part of A-1 towards the deceased and her testimony does not also disclose that A-1 has in any way abetted the commission of suicide by the deceased.

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11. P.W.2, who is brother of P.W.1, deposed that on his advice, A-1 agreed to marry the deceased and made necessary arrangements for the marriage and then

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demanded 8 tolas of gold and a scooter, but as P.W.1 could not give the same, A-1 escaped from the village and a week later, the deceased died, as A-1 did not

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marry her. P.W.2 thus gave a version totally differing with the

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prosecution case and he did not fully support the prosecution case.

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He was treated hostile by the prosecution. P.W.3 is the wife of P.W.2. She was also treated hostile by the prosecution as she deposed on similar lines of her husband P.W.2 and did not support the prosecution case. The evidence of other witnesses is not of much consequence as the same relates to different aspects of investigation. Thus, it can be seen that either in the complaint-Ex.P-1 or in the evidence of P.Ws.1 to 3, it is no where stated that A-1 caused abetment of commission of suicide by the deceased either by his words or deeds or in any other manner.

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12. It is well settled that in order to constitute an offence under Section 306 IPC, the abetment referred to therein shall be in terms of Section 109 IPC.

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13. In the present case, A-1 was originally charged for the offence under Section 304-B IPC and the trial Court held that the ingredients of the said offence have not been

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established at all.

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A-1 was, therefore, acquitted of the same. The trial Court, however, found A-1 guilty of the offence under Section 306 IPC without

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any evidence establishing the ingredients of the same. The alleged demand by A-1 for giving 8 tolas of gold and a scooter was held not proved by the trial Court. Even according to the prosecution, the commission of suicide by the deceased was only a sequel to the said demand by A-1 because the deceased and P.W.1 were unable to meet the same. When the alleged demand itself is held not proved, question of failure to meet the said demand and the deceased humiliated on account of such demand, does not simply arise. No other overt act is attributed to A- 1 so as to attract the ingredients of abetment, as defined under Section 107 IPC. Section 107 IPC states as follows:-

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107. Abetment of a thing

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A person abets the doing of a thing, who--

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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

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

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14. There is absolutely nothing on record that A-1 instigated the deceased to commit suicide or that he intentionally aided by any act or legal omission the commission of suicide by the deceased or that he entered

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into conspiracy with anyone and in pursuance thereof, did any act or illegal omission which facilitated the commission of suicide by the deceased.

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15. The learned counsel for the appellant relied on a decision in SATISH V. STATE OF MAHARASHTR A^[1] , wherein the High Court of Bombay, in similar circumstances, held as follows:-

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“In order that the offence under Section 306 of the Indian Penal Code is brought home, it must be first proved that the accused has instigated some person to commit suicide or has engaged with anybody in any conspiracy for obtaining the desired result i.e., the suicide on the part of the lady, and acts or illegally omits to act in pursuance of such conspiracy or that the accused intentionally induces by any act or illegal omission the committing of suicide. In any event, it must be brought home that the accused had any intention of bringing about the suicide on the part of the deceased. The essence of Third clause of Section 107 of the Indian Penal Code is the intention on the part of the accused. Unfortunately, in this case, the prosecution evidence falls short of establishing such intention on the part of the accused.”

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16. The finding of the trial Court holding A-1 guilty of the offence under Section 306 IPC is based on no evidence at all. It is a case where the trial Court convicted A-1, the appellant, for the offence under Section 306 IPC, without there being any iota of evidence, either direct or circumstantial establishing the ingredients of the said offence. In fact, it is not the case of the prosecution at all

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that A-1 abetted the commission of suicide by the deceased. The evidence on record, which did not establish the offence under Section 304-B IPC, also does not warrant any conviction for the offence under Section 306 IPC. The conviction of the appellant/A-1 for the offence under Section 306 IPC and sentence imposed by the trial Court therefor are, therefore, held unsustainable and they are liable to be set aside and are accordingly set aside.

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17. In the result, the appeal is allowed, setting aside the conviction and sentence recorded by the trial Court against the appellant/A-1. The bail bonds of the appellant/A-1 shall stand cancelled. In case the appellant/A-1 is committed to jail in execution of the warrant issued pursuant to the order dated 18-02-2010 of this Court, he shall be set at liberty forthwith if he is not required in any other case. In the event of the warrant, issued pursuant to the above order dated 18-02-2010 remaining unexecuted, the same shall stand recalled.

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G.V.SEETHAPATHY, J

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Dated 09^th April, 2010 Lrkm.

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[1] 1997 CRI. L.J. 935

J. Narsimulu v. The State of A.P.

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J. Narsimulu v. The State of A.P.

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