1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.1334 OF 2015 BETWEEN:
The State Represented by P.S.I., Udupi Town P.S.-576101.
(By Sri. Thejesh P. HCGP, Advocate) AND:
Tushar Kotian, Aged about 22 years, R/at Sri. Sai Kaveri Jidda, Moodutonse Village, Udupi Taluk and District-576101. (By Sri. K.Vishwanatha, Advocate) ... Petitioner ...Respondent This Criminal Revision Petition is filed under Section 397 read with 401 Cr.P.C. praying to set aside the order dated 30.05.2015 passed by the Principal Sessions Judge, Udupi District, Udupi in S.C.No.42/2013, thereby allowing application filed by the respondent/accused under Section 227 of Cr.P.C. and discharging him for the offence punishable under Section 306 of IPC by allowing this Criminal Revision Petition.
This Criminal Revision Petition coming on for Admission this day, the court made the following:
ORDER Though this petition is listed for admission, with the consent of the learned HCGP for the State and the counsel for the respondent, the matter is taken up for final disposal.
2. The factual matrix of this petition are as under :-
The deceased Rakshitha was studying in Final Year B.Sc. She fell in love with the accused since two years and the accused had given assurance to her that he was making preparations to go to abroad. But, the deceased was not happy with the said decision taken by the accused, as a result of that, on 30.11.2012 she committed suicide in between 8.00 AM to 11.AM in her room by hanging with means of ligature materials seized by the investigation officer during the course of investigation.
3. Subsequent to the registration of the crime in Crime No. 429/2013, the Investigation Officer has taken up the case for investigation and laid charge sheet against the accused for the offence under Section 306 IPC. Subsequently, committed the case to the Court for trial and it is pending for trial. In the meanwhile, the accused filed application under Section 227 Cr.P.C. seeking discharge of the offence under Section 306 of IPC as lugged against him in S.C.No. 42/2013.
4. State has preferred this petition by questioning the legality of the order passed by the Court below in S.C.No. 42/2013 by allowing the application filed by the accused under Section 227 Cr.P.C and consequently discharging the accused from the alleged offence.
5. The learned HCGP for the State has taken me through the complaint said to have beeen filed by the complainant before the Udupi Town Police Station where it is stated that the deceased and the accused were in love with each other and the accused made her to commit suicide in her room on 30.11.2012 in between 8.00 AM to 11.00 AM. The same has been revealed in the FIR said to be recorded by the police and so also the substance of the charges laid against the accused. Due to falling in love with the accused and the accused had taken a decision to go to abroad, the deceased Rakshitha was under depression and committed suicide. The investigation officer who has taken up the case for investigation and laid the charge sheet against the accused. The charge sheet consists statement of witnesses and so also the mahazar conducted in the presence of panch witnesses and also inquest also done over the body. These are all the materials which are collected by the Investigation Officer and this reveals that this accused is the cause for the death of Rakshitha. The same has not been considered by the trial Court in S.C.No.42/2013 while allowing the discharge application under Section 227 of Cr.P.C. Therefore, in this Criminal Revision Petition it requires to be interfered with by setting aside the order passed by the trial Court in S.C. No. 42/2013 dated 30.5.2015 while entertaining the application filed by the accused under Section 227 Cr.P.C seeking discharge for the offence leveled against him under Section 306 of IPC.
6. Learned counsel Sri K.Vishwanatha appearing for the respondent/accused contended that accused is alleged to have had love affair with the deceased Rakshitha and due to that love affair she committed suicide by hanging in her room in between 8.00 AM to 11 AM on 30.11.2012. Though the parents of the deceased had given statements before the Investigation Officer during the course of investigation, but the ingredients relating to the provisions of Section 107 IPC so also relating to Section 306 IPC has not been put forth in the charge sheet laid by the Investigation Officer. Merely because there was a love affair, it cannot be constitute cause for offence under Section 306 IPC and for causing death of the deceased. The trial Court in S.C.No. 42/2013 has taken into consideration all the contentions urged in the application filed under Section 227 of Cr.P.C. The trial Court has also referred the judgment of the Supreme Court in the case of KEWAL KRISHAN S/O LACHMAN DAS vs SURAJ BHAN AND ANOTHER [1981 SCC (CRI) 438] relating to the provision of Section 227 of Cr.P.C wherein it is held as : - “Section 227 of the Code of 1973 has made another beneficent provision to save the accused from prolonged harassment which is a necessary concomitant of a protracted trial. This section provides that if upon considering the record of the case, the documents submitted with it and the submissions of the accused and the prosecution, the judge is not convinced that there is sufficient ground for proceeding against the accused, he has to discharge the accused under this section and record his reasons for so doing”.
7. The aforesaid citation is referred to by the trial Court for the purpose of considering the application filed by the accused under Section 227 Cr.P.C and moreover there are no ingredients to constitute offence under Section 306 IPC and so also relatable to Section 107 of IPC that accused is the cause for the death of the deceased Rakshitha. These were also the contentions taken by the learned counsel for the respondent who is arrayed as accused in the Court below seeking for dismissal of this Criminal Revision Petition preferred by the State by confirming the order passed by the trial Court in S.C.No. 42/2013 dated 30.5.2013.
8. In this context of contention taken by the learned HCGP for the State who has preferred this petition by challenging the order passed by the trial Court in S.C.No. 42/2013 for having considered the application filed by the accused under Section 227 of Cr.P.C. and consequently discharging the accused from the offence under Section 306 of IPC which is lugged against him in the charge sheet laid by the Investigation Officer. There is no dispute about the death of the deceased Rakshitha. She was studying in Final year B.Sc. She fell in love with the accused. The accused had disclosed that he was getting preparations done to go to abroad. Due to disclosure made by him she has undergone depression. Therefore, she committed suicide on 30.11.2012 in her room between 8.00 AM to 11.00 AM with means of ligature materials being used and the same is also seized by the Investigation Officer during the course of investigation in Crime No. 429/2013. The prosecution proceeded with the case in S.C.No. 42/2013 for the offence under Section 306 IPC which arose out of Crime No. 429/2013 registered on the basis of the complaint filed by the complainant. During investigation, the Investigation Officer has recorded the statements of the parents of the deceased Rakshitha and so also the statement of her friends. Mahazar was also drawn by the Investigation Officer during the investigation. But, the charge sheet has been laid against the accused by securing the material documents during the course of investigation. The charge sheet consists of the statement of witnesses and so also the mahazar said to be conducted in the presence of panch witnesses. But, the ingredients of Section 107 IPC and also relatable provision of Section 306 IPC are very much required to be tested by the trial Court. Unless the ingredients constituted under the provisions of Section 107 IPC are there, it cannot be said that the accused is the cause for the commitment of suicide by the deceased as stated in the charge sheet laid by the Investigation Officer. But, by and large if two views are equally possible to be taken into consideration, the evidence which is secured by the Investigation Officer during the course of investigation requires to be weighed as whether the accused is required to face trial for the offence under Section 306 IPC. In exercising the power as contemplated under Section 227 Cr.P.C., the trial Judge is not only a mere spectator but he has to see the material and consider the probabilities of the case and so also the totality of the circumstances of the case and the material evidence which has been secured by the Investigation Officer during the course of investigation. But, it should not make a rowing enquiry into the pros and cons of the matter. The trial Court has jurisdiction to deal with the matter in accordance with law and also weighing the materials secured by the Investigation Officer in laying the charge sheet and say whether the accused requires facing up the trial.
9. The learned HCGP for the State has taken me through the fulcrum of mahazar stated to be conducted by the Investigation Officer during the course of investigation with regard to the messages contained in the mobile phone of the accused and the messages found in the mobile phone of the deceased Rakshitha on 8.4.2013. There is no dispute that this relate to the materials secured by the Investigation Officer that the deceased as well as the accused fell in love. The accused had taken a decision in order to proceed to abroad, because of that decision taken by him, the deceased Rakshitha had taken a decision to commit suicide. Merely because she committed suicide on 30.11.2012 between 8.00 AM and 11.00 AM in her room, it cannot be said that the accused is the cause for the death of the deceased as narrated in the FIR said to be recorded by the police. But, it is relevant to refer to the materials seized by the Investigation Officer during the course of investigation, it reveals that the deceased Rakshitha and the accused had fell in love with each other and the accused was preparing to proceed abroad and he was trying to keep away from her and the said fact alleged to hurt her feelings. Merely because of that, it cannot be the reason that she has taken a decision to commit suicide and also dwelling in her for mental depression. The word ‘instigate’ literally means to goad, urge forward, provoke, incite or encourage to do an act and a person is said to instigate another when he actively suggests or stimulates him to the act by any means, or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. There is no dispute about the investigation officer laying down the charge sheet against the accused for the alleged offences. The employment of the word ‘instigate’ or ‘provoke’ has given meaning in the context as stated supra. The offence under Section 306 IPC is that commitment of suicide. Modem of suicide depends upon the deceased has taken a view. But, the abetement or commitment of suicide is a definition found under Section 107 of IPC. The same has been observed in the order passed by the Court below while passing order on the application filed by the accused under Section 227 of Cr.P.C. Reliance is placed on the ratio of the decision in the case of SATISH S/O NARAYAN ATE vs STATE OF MAHARASTRA [1997 CRL.L.J 935] where it is held, “Penal Code (45 of 1860), S.306-Abetment –Suicide– Accused having love affair with deceased girl-Marriage settled between them and accused did not turn up-Girl committed suicide thereafter-Evidence of witness extremely general in nature-Deceased nowhere attributed pregnancy to accused–In the complaint also, she has not said anything of having physical intimacy with accused but said that his mother was demanding money as the condition of marriage-It was not proved that the accused intended by not marrying that she should commit suicide or knew that she is likely to commit suicide-It was an independent act of deceased herself-Accused acquitted.”
10. The ratio of the decisions in the cases of GHANSHYAM KOUSHIK vs STATE OF MADHYA PRADESH [2013 (3) CRIMES 132 (CHATT.)] and PINAKIN MAHIPATRAY RAWAL vs STATE OF GUJARAT [2013 (4) CRIMES 110 (SC)] deal in detail with the provision relating to Section 306 IPC. However, in the instant case, the allegations are that the deceased Rakshitha committed suicide by hanging in her room on 30.11.2012 as she fell in love with the accused and the accused had decided to proceed to go aboard. Because of his decision, she has undergone mental depression and committed suicide. Merely because of a love affair in between them, it cannot be said it constitutes an offence under Section 306 of IPC, unless the definition constituted under Section 107 IPC is satisfied as it is a definition Section relating to the commitment of suicide. These are all the ingredients that have not been adverted to by the prosecution even though the charge sheet has been laid by the Investigation Officer against the accused. Therefore, I do not find any glaring mistake committed by the trial Court in S.C.No. 42/2013 for having entertained the application filed by the accused under Section 227 of Cr.P.C. seeking for discharge of the offence under Section 306 of IPC which is lugged against the accused. In view of these findings, I am of the considered opinion that the petition does not deserve consideration. Consequently, this petition filed by the State under Section 397 read with Section 401 of Cr.P.C is hereby dismissed. The order passed by the Court below in S.C.42/2013 dated 30.5.2015 is hereby confirmed.
Sd/- JUDGE ckl