IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.103/2018 BETWEEN:
The State of Karnataka Through Sub-Inspector of Police, Ramamurthynagar Police Station, Rep. by the State Public Prosecutor, High Court Building, Bengaluru – 560 001.
(By Sri K. Nageshwarappa, HCGP) AND:
1. Smt. Prabha W/o late Chandra, Aged 33 years, R/at Kannurhalli Village, Doddagattiganabbi Post, Hosakote Taluk, Bengaluru District – 562114.
2. Appu @ A. Barnand Raj, S/o Arik Raj, Aged 25 years, R/at 1st Main, 1st Cross, Near Government School, Benniganahalli, Bengaluru – 560 016.
(By Sri Sudharshan.L., Adv. for R1 – Absent; Sri G.M.Srinivasa Reddy, Advocate for R2) ...Appellant ... Respondents This Criminal Appeal is filed under Section 378(1) and (3) Cr.P.C. by the State praying to grant leave to file an appeal against the Judgment and Order of acquittal dated 24.10.2017 passed by the LV Additional City Civil and Sessions Judge, Bengaluru (CCH-56) in S.C.No.734/2015 acquitting the respondent/accused Nos.1 and 2 for the offence punishable under Section 306 of IPC.
This Criminal Appeal coming on for admission, this day, the Court made the following:
J U D G M E N T Though this case is posted for Admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
2. I have heard the learned counsel for the appellant and the learned counsel for respondent No.2- accused. The learned counsel for the respondent No.1- accused remained absent.
3. The present appeal has been preferred by the State, being aggrieved by the judgment and order of acquittal passed by 55th Additional City Civil & Sessions Judge, Bengaluru in S.C.No.734/2015 dated 24.10.2017.
4. The facts of the case are that the marriage of deceased and accused No.1 took place about 12 years back, thereafter they have started residing at Muniramaiah Colony. Thereafter, accused No.1 came in contact with accused No.2 and they had extra marital relationship. Accused No.2 used to come to the house of the deceased very often, where accused No.1 used to reside. When the said aspect was questioned by the deceased, there used to be quarrels. Even C.Ws.2 to 8 who are the relatives of the deceased opposed accused No.2 coming to the house of the deceased in order to avoid the extra marital relationship with accused No.1. On 28.06.2013 at about 2.15 p.m., the deceased saw the presence of accused No.2 along with accused No.1 in his house, he tried to catch hold of accused No.2 red handed, but accused No.1-wife of the deceased interfered and rescued accused No.2 to escape from that place. Thereafter, accused Nos.1 and 2 went to her parents house. The deceased also went to the parents house of accused No.1 and asked her to come with him and to lead a matrimonial life, but accused No.1 refused to come with him and she told that she is not interested in him and she likes accused No.2 and if decease dies she can live a happy life with accused No.2 and she also told that accused No.2 has also agreed to lead the life with her. The deceased being unhappy with the said words, on 04.07.2013 committed suicide by strangulating himself. On the basis of the complaint, the case has been registered in Crime No.280/2013. After completion of investigation, charge sheet was filed.
5. After complying the provisions under Section 209 of Cr.P.C., the learned Magistrate committed the said case and the learned Sessions Judge took the cognizance and framed the charges, after hearing the learned Public Prosecutor and learned counsel for the accused. Accused not pleaded guilty and he claimed to be tried, as such the trial was fixed.
6. In order to prove the case of the prosecution, it has got examined 8 witnesses as P.Ws.1 to 8 and got marked Exs.P1 to P7 and also M.O.1. After recording the statement of accused Nos.1 and 2 under Section 313 of Cr.P.C. and after hearing the learned counsel for the parties the impugned order of acquittal came to be passed. Challenging the same, the State is before this Court.
7. It is the submission of learned High Court Government Pleader that learned Sessions Judge fails to appreciate the material evidence adduced by the prosecution. It is his further submission that the prosecution has clearly established that it is on account of the said illicit relationship and abetment the deceased has committed suicide. This aspect has not been properly proceeded and appreciated by the trial Court. The order of trial Court is not in accordance with law. It is his further submission that the reasoning is based only on presumption and there is no legal evidence adduced by the defence counsel. Even then, the Court below has acquitted the accused. On these grounds, he prayed to allow the appeal and to set- aside the judgment of acquittal passed by the Court below.
8. Per contra, the learned counsel appearing on behalf of respondent No.2-accused vehemently argued and submitted that the prosecution has not proved the ingredients of Section 306 of IPC so as to bring home the guilt of the accused. The trial court has rightly acquitted the accused. It is his further submission that in order to make out the case of the accused, there must be an abetment and instigation on the part of accused. The prosecution has not brought any evidence to substantiate its case and evidence produced has not been proved by the prosecution. When there is no direct evidence to connect the accused to the said offence, the respondents-accused have been acquitted. There are no good grounds to interfere with the judgment 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, it has got examined P.W.1 to 8. P.W.1 being the elder brother of deceased and also a complainant, in his evidence he has deposed about the incident dated 28.06.2013 that accused Nos.1 and 2 were having illicit relationship and on that day, when accused No.2 was there in the house of accused No.1, the deceased was trying to caught hold of them red handed, accused No.1 interfered and rescued accused No.2. He has further deposed that because of the illicit relationship with accused No.2, the deceased died by committing suicide. P.Ws.2, 3 and 4 are the relatives of the deceased who came to know about the alleged illicit relationship between accused Nos.1 and 2 and they have advised accused No.1 to avoid the relationship with accused No.2. They have not spoken in their evidence about the details of the incident which was taken place on 28.06.2013 and they have also not spoken with regard to the illicit relationship between accused Nos.1 and 2.
P.W.5 is one Gangadhar, he has not supported the case of the prosecution. P.W.6 is a villager, he has also not supported the case of the prosecution. P.W.7 is a Police Inspector who has registered the case and issued FIR.
P.W.8 is the Investigating Officer who investigated the case and filed the charge sheet.
11. From the above evidence, let us consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubt. In order to prove the case of the prosecution under Section 306 of IPC there must be clear preserve of mens rea to commit the offence. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained in law. This proposition of law has been laid down by the Hon’ble Apex Court in the case of M.Mohan vs. State Tr. Deputy Superintendent of Police reported in AIR 2011 in S.C.1238 wherein at paragraph Nos.45 and 46 it has been observed as under.
45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
46. The intention of the Legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.
12. On close reading of the above said paragraphs, in order to prove the offence punishable under Section 306 of IPC, there must be a suicidal death and that suicidal death must be due to abetment or instigation by the accused.
13. Keeping in view of the above proposition of law, the evidence which has been produced, if it is looked into, no such evidence has been placed to prove the charge for the offence punishable under Section 306 of IPC. It is the case of the prosecution that the deceased is the husband of accused No.1 and accused Nos.1 and 2 were having extra marital relationship and on 28.06.2013 accused No.2 was found in the house of accused No.1, deceased tried to catch hold of accused No.2, but he escaped with the help of accused No.1. Thereafter, accused Nos.1 and 2 went to their parents house and deceased also went and asked accused No.1 to come with him and at that time she has expressed that she does not like him and she likes accused No.2 and if the deceased dies, she will live happy life with accused No.2 and accused No.2 has also admitted for the same. All these words which have been stated by accused No.1 are neither instigated nor abetted for commission of suicide by the deceased. Even the conduct of the deceased is also clearly goes to show that he has gone to bring her back and she has refused. Records also shows that deceased was earlier knowing the illicit relation of accused Nos.1 and 2 and it is not the first time he has come to know the said fact. So when ingredients of the case is not before the Court to prove the offence under Section 306 of IPC, under such circumstances, the case of the prosecution is liable to fail. In order to bring home the guilt of the accused, there must be a direct evidence to prove the charge for the offence punishable under Section 306 of IPC and if the prosecution has failed to prove the said offence, then the accused has to be acquitted in this behalf.
14. On brief appreciation of the evidence which has been produced by the prosecution before the Court below it cannot be said that there was a mens rea for commission of offence and it is because of the instigation and abetment the deceased has committed suicide.
15. Under the facts and circumstances, the prosecution has failed to prove the case as alleged and by taking into consideration of the above said facts and circumstances, the Court below has rightly acquitted the accused and there are no good grounds to interfere with the order of trial Court.
16. I have carefully and cautiously gone through the judgment of trial court and it is in accordance with law. There is no perversity or illegality in passing such order.
The criminal appeal being devoid of merits, the same is liable to be dismissed. Accordingly, it is dismissed.
Sd/- JUDGE GJM