IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.2197/2018 Between:
Pranav Prakash S/o A.K.Prakash Aged about 23 years R/at Assarujudiyl Varpettu Post and Village Kothamangalama Town Ernakulam Rural Kerala – 686 666. … Appellant (By Sri. Muzaffar Ahmed, Advocate) And:
The State of Karnataka By Madanayakanahalli Police Station Represented by State Public Prosecutor High Court of Karnataka Bengaluru – 560 001. ... Respondent (By Sri. M. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the judgment of conviction and sentence dated 01.12.2018 passed by the VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in S.C.No.77/2017-convicting the appellant/accused for the offence punishable under Section 306 of IPC.
This Criminal Appeal is coming on for Orders, this day, the Court delivered the following:
J U D G M E N T The present appeal has been preferred by the appellant/accused challenging the judgment of conviction and order of sentence passed by the Court of VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in S.C.No.77/2017 dated 01.12.2018.
2. I have heard the learned counsel for the appellant/accused and learned High Court Government Pleader for the respondent-State.
3. The genesis of the case of the prosecution is that the deceased-Zeetha Sanjeevan was residing with her mother in a rented house. The accused was in love with her. Since, the accused was having a physical contact with her, she became pregnant and her pregnancy was got aborted on 16.11.2015 without informing her family by consuming some medicine and the said fact came to the knowledge of her mother-PW.1 and the same was intimated to the family of accused. On coming to know the same by the accused, he came to the house of the deceased on 06.02.2016 at about 9.00 p.m. along with his friends-CWs.9 to 11 started quarrelling with the deceased as to why she had informed to his family about their love and he took her to the terrace and told her that he would not marry her and she can do anything and even she can die also. At his instigation, she went inside the room and committed suicide by hanging to a ceiling fan with a veil. After noticing that the room locked, PW.1 went and called the deceased, as the deceased did not open the door, PW.1 called CWs.8 to 10, who were here on the terrace along with the accused persons and in the meanwhile, the owner of the house also came and by breaking open the door, entered into the room and saw the body of the deceased hanging to a ceiling fan by veil. Immediately, CWs.8 to 10 brought her down from hanging position and shifted her to Sapthagiri Hospital and thereafter, she was shifted to Amrutha Hospital, Cochin and there the deceased died.
4. On the basis of the complaint, a case has been registered in Crime No.80/2016 and after investigation, the charge sheet was laid as against the appellant/accused. The Committal Court committed the case to the Sessions Court, the Sessions Court took the cognizance and secured the presence of the accused, who was on bail. After hearing the learned Public Prosecutor and the learned counsel for the appellant/accused, the charge was prepared and read over to the accused. Accused pleaded not guilty and claims to be tried and as such, the trial was held.
5. In order to prove the case of the prosecution, the prosecution got examined 9 witnesses and got marked 10 documents and also 2 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and the accused denied the incriminating material as against him. However, he has not adduced any evidence.
6. After hearing the learned Public Prosecutor and the learned counsel for the accused, the impugned judgment of conviction and order of sentence came to be passed. Challenging the legality and correctness of the said judgment, the appellant is before this Court.
7. It is the submission of the learned counsel for the appellant/accused that the materials placed on record and the evidence produced have not been properly and legally appreciated by the trial Court. He further submitted that PW.1-mother is the complainant. She has not categorically stated any ingredients which are necessary to constitute an offence under Section 306 of IPC. She has only deposed about the quarrel, which took place between the deceased and the accused. He further submitted that at the time of the alleged incident, the accused was also on the terrace along with friends. He further submitted that PW.2 is the relative and his only inquest mahazar, which is marked as Ex.P3. PW3 is father of the deceased, he was in Kerala at the time of alleged incident and he came to the place only on the say of PW.1, PW.3 is only the hearsay witness and he has not substantiated the case of the prosecution. PWs.4, 5 and 6 are friends of the deceased as well as the accused, they have not supported the case of the prosecution and they are treated as hostile. Even, during the course of cross- examination, nothing has been elicited so as to support the case of the prosecution. PW.7 is the owner of the house, who took the deceased to the hospital and she has also not supported the case of the prosecution.
PWs.8 and 9 are the official witnesses. The only evidence which is available before the Court is PW.1 and the said evidence does not depose the confidence so as to bring home the guilt of the accused. Without proper consideration of the said evidence, the Court below has wrongly convicted the accused. He further submitted that for what reason the deceased committed suicide has not been properly stated and with full proof has to be proved. He further submitted that even though the complaint shows that the accused told “to go and die” but it is his submission that “to go and die” does not constitute an offence under Section 306 of IPC. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence and to acquit the accused.
8. Per contra, the learned High Court Government Pleader vehemently argued and submitted that PW.1 is the mother of deceased and she has categorically deposed before the Court that her daughter and the accused were studying in the same college, they were in love with each other and also they were having physical relationship, due to the said relationship, she became pregnant. On 13.01.2016, she was taken to the hospital and her pregnancy was got aborted. Only because that the deceased and PW.1 informed the family members of the accused, he came and quarreled and instigated the deceased to commit suicide. Because of the said act, the deceased has committed suicide by hanging to a ceiling fan. There is ample material to connect the accused to the alleged crime and the same is also corroborated with the evidence of PW.3. It is his further submission that at the time of the alleged offence, the accused was also present at the place of incident. The trial Court, after considering the said facts and circumstances has rightly convicted the accused that there are no good grounds made out by the appellant/accused to interfere with the order of the trial Court. On these grounds, he prayed to dismiss the appeal.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
10. In order to prove the case of the prosecution, the prosecution got examined 9 witnesses. PW.1 is the mother of the deceased and she is also a complainant. In her evidence, she has deposed that the deceased is her daughter and she was studying in 8th Semester of B.Tech at Acharya Institute of Technology and the accused was also studying in the same college. She has further deposed that she is residing in a rented house of PW.7. Her daughter was in love with the accused and they were having physical relationship. On 13.01.2016, daughter of PW.1 had fallen unconscious and when she was admitted to NRR Hospital, there she revealed to PW.1 regarding her physical relationship with the accused and her pregnancy was got aborted. On 06.02.2016, she went to the college, at that time, she was very happy and she came back to home at about 5.30 p.m. and told that she wanted to go to Kengeri for project work. On the same day at about 9.00 p.m., the accused came to the house of the deceased along with his friends and PW.1 opened the door. The accused told the complainant that he wanted to talk with her daughter. By that time, the daughter was sitting on the cot of the bedroom, the accused went inside and PW.1 came outside along with his friends. Thereafter, she heard the sound of the accused quarrelling with her daughter. After 15 minutes, the accused came out of the room and went to the terrace. Her daughter’s bedroom was locked, she suspected and afraid of the locked bedroom, she went up and brought down the accused and his friends and by hearing her screaming voice, the neighbours also came. Thereafter, all of them broke open the door and they saw her daughter was hanged to a ceiling fan by veil. All of them, including the accused cut the veil and brought down and took her to Sapthagiri Hospital and she has also further deposed that next day morning at about 9.30 a.m., she went to Cochin as the deceased was shifted to Amrutha Hospital, Cochin. She has further deposed that she committed suicide because of quarrel with the accused. She has filed a complaint as per Ex.P1. She has further deposed that she came to know about the abortion on 13.01.2016. She is also a witness to the spot mahazar- Ex.P2.
11. During the course of cross-examination, she has deposed that she did not know that in Ex.P2, it is written that the accused was in love with her daughter and also had physical relationship but later the accused told the deceased that he will not marry her and therefore, she committed suicide. PW.1 has admitted during the course of cross-examination that when her daughter was studying in the said Institution, she had friends and CWs. 9 to 12 were also her daughter’s friends. PW.2 is the relative of PW.1 and he is also a witness to the Inquest Mahazar-Ex.P3. PW.3 is the father of the deceased, he has also reiterated the evidence of PW.1 but at the time of the alleged incident, he went to Kerala and only on getting the information from PW.1, he came to know about the alleged incident. During the course of cross-examination, nothing has been elicited from the mouth of this witness. PWs.4, 5 and 6 are the friends of the deceased as well as the accused, they have not supported the case of the prosecution and they have been treated as hostile. PW.7 is the owner of the house, who took the deceased to the hospital and she did not support the case of the prosecution and she has also been treated as hostile. PW.8 is the PSI, who has been deputed to trace the accused. PW.8 has deposed that on 15.06.2016 he apprehended the accused and produced him before the Investigating Officer and he also filed the charge sheet. He has also recorded the voluntary statement of the accused. PW.9 is the PSI, who partly investigated the case and filed the charge sheet.
12. From the above evidence, let me consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubts. The learned High Court Government Pleader specifically contended that because of the quarrel between the accused and the deceased as that accused was not ready to marry and told her “to go and die”, the deceased has committed suicide by hanging.
13. On perusal of the evidence on record, it clearly discloses that at the time of the quarrel between the deceased and the accused, none were present. Admittedly, the door of the room was closed and they heard only galata. Under such circumstances, the contention of the complainant-PW.1 is that while quarrelling, the accused told the deceased that he was not ready to marry her and told her “to go and die”, cannot be accepted and even it cannot be presumed that such words have been used. Admittedly, when the deceased was removed from hanging position and at that time, she was unconscious. Immediately, she was taken to Sapthagiri Hospital and there her condition was critical. Nowhere, the deceased has whispered a single word about the said fact. The said contention that while quarrelling, the accused told the deceased “to go and die”, is not acceptable.
14. Be that as it may. In order to constitute abatement, mens rea must be necessary. The instigation denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite, mere using of the word as contended by the prosecution, “to go and die” that itself does not constitute an offence under the provisions of Section 306 of IPC and even no mens rea has been established in this behalf to come to the said conclusion. This proposition of law has also been laid down by the Hon’ble Apex Court in the case of Sanju alias Sanjay Singa Sengar Vs. State of MP reported in (2002) 5 SCC 371 at para 12 of the said decision, it has been observed as under. For the purpose of brevity, I quote the said paragraphs:-
“12. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25.07.1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased “to go and die”. For this, courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 of Crl.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as Annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him “to go and die”. Even if we accept the prosecution story that the appellant did tell the deceased “to go and die”, that itself does not constitute the ingredient of “instigation”. The word “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. Secondly, the alleged abusive words, said to have been told to the deceased were on 25.07.1998 ensued by a quarrel. The deceased was found hanging on 27.07.1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25.07.1998 drove the deceased to commit suicide. Suicide by the deceased on 27.07.1998 is not proximate to the abusive language uttered by the appellant on 25.07.1998. The fact that the deceased committed suicide on 27.07.1998 would itself clearly point out that it is not the direct result of the quarrel taken place on 25.07.1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.”
15. On close reading of the said decision, without there being any proof, if it is admitted for the time being that the accused in the quarrel has told the deceased “to go and die”, but in the absence of mens rea established by the prosecution, the said uttering of the word and quarrel that did not bring home the ingredients of Section 306 of IPC so as to hold the accused instigated the deceased to commit suicide.
16. Be that as it may. The act of abatement to constitute an offence under Section 306 of IPC must be proved and established by the prosecution before convicting the accused under Section 306 of IPC. The person who is said to have abated the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. By going through the evidence of PW.1, she has only narrated that the accused and the deceased were in love with each other and they were having physical contact and her pregnancy was got aborted and the said fact was informed to the family members of the accused and the accused, along with his friends went and quarreled with the deceased and thereafter, he went to the terrace and the deceased closed the door and committed suicide. In the facts and circumstances, nowhere, the evidence of PW.1 says that the accused instigated and abated the deceased to commit suicide. Only on presumption and assumption, the said complaint has been filed. In order to prove the guilt of the accused, there must be ingredients to prove that it is the accused, who led or compelled the deceased to commit the suicide, that ingredient is also not properly explained or brought on record by the prosecution. I am conscious of the fact that the accused intentionally harassed the deceased, which had left her with no option or other alternative to put an end to her life will also constitute an abatement to commit suicide but even, nowhere PW.1 has stated that the accused had harassed the deceased, leaving her with no other alternative but to put an end to her life. Looking from any angle, the evidence of PW.1 does not depose any confidence to the Court to come to the conclusion that it is the accused, who instigated the deceased to commit suicide. In the absence of such ingredients, the Court below has wrongly accepted the case of the prosecution that the deceased committed suicide as a result of the instigation of the accused.
17. Be that as it may. Admittedly, PW.1 is the mother of the deceased and PWs 4 to 6 were also present at the time of the quarrel as well as alleged incident, but they have not deposed anything and they have been treated as hostile. In the absence of their evidence, it is very difficult to infer that the accused instigated the deceased to commit suicide. As discussed above, mens rea is lacking in the present case. It is well established proposition of law that in order to convict the accused, there must be mens rea then only the accused can be convicted for the alleged offences. The trial court, without keeping the said proposition of law, has wrongly passed the impugned order. Even, the evidence of PW.1 clearly goes to show that she got the deceased admitted in the hospital, she does not know the exact time as to when her daughter breathed her last. If really, she was having concern about her daughter, under such circumstances, she ought not to have left the hospital and she could not have stayed in the house. In her evidence, in the chief examination itself she has deposed that she called the friends who were in the terrace, they came along with the accused and the accused removed the body of the daughter by cutting veil. If really, the accused has an intention to abate the deceased to commit suicide, under such circumstances, he could have left the place or he could not have come when such a drastic incident had taken place in the house of PW.1. The prosecution has utterly failed to prove the guilt of the accused beyond all the reasonable doubts.
18. In the light of the discussions held by me above, I am of the considered opinion that the appellant/accused has made out a case to set aside the impugned judgment of conviction and order of sentence.
19. Taking into consideration of the above said facts and circumstances, the appeal is allowed and judgment of conviction and order of sentence passed by the Court of VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in S.C.No.77/2017 dated 01.12.2018 is set aside and the appellant/accused is acquitted of the charges levelled against him.
The operative portion of this judgment shall be communicated to the concerned jail authorities with a direction to release the appellant/accused forthwith, if he is not required in any other cases.
Sd/- JUDGE NR/RG