IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19th DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.1320/2019 BETWEEN:
1. Smt. Nagarathna Bai W/o Srinivas Aged about 36 years No.1149, Muttur, Doddaballapura Town, Bengaluru District Karnataka-561 203.
2. Smt. Gayatri Bai W/o Kumar Rao Aged about 34 years No.1149, Muttur, Doddaballapura Town Bengaluru District Karnataka-561 203.
3. Sri Munirao S/o late Chikkamanoji Rao Aged about 41 years No.759, Khasbag, Doddaballapura Town Bengaluru District Karnataka-561 203.
(By Sri Pradeep H.S., Advocate) …Petitioners AND:
1. The State of Karnataka by Doddaballapura Town Police Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
2. Kum. Lavanya K., D/o Kannan Aged about 21 years No.118, 6th Division, R/a. Muttur, Doddaballapura Town Bengaluru Rural District Karnataka-561 203.
(By Sri M.Divakar Maddur, HCGP) …Respondents This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the impugned order dated 17.08.2019 passed by the IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District in S.C.No.10025/2018 by discharging the petitioners.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R The learned High Court Government Pleader is directed to take notice for respondent No.1-State.
2. Heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader for the respondent-State.
3. This petition has been filed by the petitioners- accused Nos.1 to 3 challenging the order passed by IV Additional District and Sessions Judge, Doddaballapura in S.C.No.10025/2018 dated 17.8.2019 where under the application filed under Section 227 of Cr.P.C. came to be dismissed.
4. The case of the complainant in brief is that on 10.7.2017 brother of the complainant after finishing his night shift in a private company reached home and after his breakfast he went to sleep. At about 10.30 a.m. deceased brother made some phone calls to his mobile. He woke up and he started to speak in his mobile, within few minutes accused Nos.1 and 2 who are residing as a neighbourers started beating the deceased with broom. At that time complainant interfered and tried to resolve from the clutches of accused Nos.1 and 2 and she also questioned the reason for beating to his brother. In response to the same, accused Nos.1 and 2 replied that her brother deceased was taking photographs in his mobile and they also told that they will teach him a proper lesson and thereafter the accused persons pushed the deceased and assaulted with slippers and frequently they abused the deceased. Because of the insult and the abetment, the deceased by saying that unnecessarily he has been assaulted and made allegation he went out of the house and after two hours they came to know that he died on a railway track by committing suicide and based on the same UDR case was registered and thereafter, after investigation charge sheet has been filed. When the case was posted for hearing before charge, the present application has been filed.
5. The main grounds urged by the learned counsel for the petitioners-accused is that the material placed on record shows that there is no instigation or harassment continuously as against the deceased. The said fact has not been considered and appreciated by the Court below. The Court below has observed that the accused persons have not come with clean hand and erroneously dismissed the application. It is his further submission that the respondent-police have not registered a case as against the petitioners-accused under Sections 107 and 108 of the Indian Penal Code for abetment or instigation which is essential ingredient to attract the provisions of Section 306 of Indian Penal Code. In the absence of non filing of the charge sheet under the said Section, the Court below ought to have discharged the accused. It is his further submission that there is a delay in investigation and filing the charge sheet. It is his further submission that the statement of the mother of the deceased also goes to show that there is no abetment or instigation by the accused. It is further submission that the Court below without taking into consideration the factual matrix has erroneously dismissed the application. On these grounds he prayed to allow the petition and to set aside the impugned order and discharge the accused.
6. Per contra, the learned High Court Government Pleader vehemently argued and submitted that there is prima facie material for having involved the accused in the alleged crime and for having instigated the deceased to commit suicide. It is his further submission that after investigation charge sheet has been filed. It clearly shows that the accused persons without there being any basis have made a false allegation for having taken up the photographs and they also assaulted. Because of the insult the deceased went and committed suicide at the railway track.
7. It is his further submission that earlier, the petitioners/accused have filed Writ Petition No.33544/2018 to not to take any proceedings, but the said petition was also came to be dismissed. It is his further submission that the material produced prima facie discloses that there is ample material as against the accused to frame the charge. In that light, he submits that the petitioners/accused have not made out good grounds and prays to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
9. It is the contention of the learned counsel for the petitioners/accused that the accused persons have not been charge sheeted under Sections 107 and 108 of IPC for abetment and they have been only charge sheeted under Section 306 of IPC. In that light, there is no material for abetment and accused persons are entitled to be discharged. For the purpose of brevity I quote Section 306 of IPC, which reads as under:
“306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
10. On close reading of the said Section, it indicates that whoever abets the commission of such suicide is liable to be punished under Sections 107 and 108 of IPC. They defined the abetment under Section 306 of IPC is an independent Section and is also used the word abetment but it is not necessary that the accused must also be charge sheeted under Sections 107 and 108 of IPC.
11. Abetment involves a mental process of instigating a person in doing something. A person abets the doing of thing when: (I) he instigates any person to do that thing; or (ii) he engages with one or more persons in any conspiracy for the doing of that thing; or (iii) he intentionally aids, by acts or illegal omission, the doing of that thing. These are essential to complete the abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do anything. If there are any direct or indirect acts of incitement to the commission of suicide, under such circumstance, it is going to attract the provisions of Section 306 of IPC. This proposition of law has been laid down in a decision of the Hon’ble Apex Court in the case of Ude Singh and Others Vs. State of Haryana reported in 2019 SCC Online SC 924 at paragraph Nos.37 and 38, it has been observed as under:
“37. Thus, “abetment” involves a mental process of instigating a person in doing something. A person abets the doing of a thing when: (i) he instigates any person to do that thing; or (ii) he engages with one or more persons in any conspiracy for the doing of that thing; or (iii) he intentionally aids, by acts or illegal omission, the doing of that thing. These are essential to complete the abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do anything.
38. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.”
12. I am conscious of the fact that while considering the application under Section 227 of Cr.P.C., the Court below has got undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case as against the accused has been made out or not? If material placed before the Court discloses a suspicion, under such circumstance, the accused persons are entitled for discharge and if there is grave suspicion against the accused which has not been properly explained to the Court by the accused, under such circumstance, the Court will be fully justified in framing the charge and proceeding with the trial. This proposition of law has been laid down by the Hon’ble Apex Court in the case of UNION OF INDIA Vs. PRAFULLA KUMAR SAMAL AND ANOTHER reported in (1979) 3 SCC 4 at paragraph No.10 it has been observed as under:
“Thus, on consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
13. Keeping in view the ratio laid down in the above decisions, the factual matrix if they have been looked into, it clearly goes to show that the deceased when he was speaking in the mobile phone, accused persons came and assaulted with brooms alleging that he was taking the photographs. When the complainant intervened and asked for showing the mobile about the photographs, which they took in the mobile subsequently, they have assaulted the deceased with chappals. Immediately, within a short span of time because of the insult, the deceased has committed suicide by falling on the railway track.
14. Taking into consideration of the materials placed on record, it appears that there is some prima facie case as against the petitioners/accused so as to frame the charge. Under such facts and circumstances of the case, I am of the considered opinion that the petitioners/accused have not made out any good grounds to interfere with the order of the trial Court and the order of the trial Court does not suffer from any infirmity or illegality.
In that light, the revision petition is being devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.
In view of dismissal of the main petition, I.A. No.1/2019 does not survive for consideration. Accordingly, it is disposed off.
Sd/- JUDGE AP/VBS