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2012 DIGILAW 579 (KAR)

Imtiaz Pasha v. State of Karnataka

2012-07-19

K.N.KESHAVANARAYANA

body2012
JUDGMENT K.N. KESHAVANARAYANA, J.—Appellants-1 to 3 were tried for the offence punishable under Section 306 read with 34 of IPC in S.C. No. 88/2002 before the Fast Track Court-II, Chikmagalur, on the allegation that Accused No. 3, as wife and Accused Nos. 1 and 2 as brothers-in-law of the deceased Shariff, abetted commission of suicide by the said Shariff. The appellants pleaded not guilty for the charge levelled against them. 2. The trial Court after recording the evidence of the prosecution witnesses and after examining the accused persons under Section 313 of Cr.P.C., by the judgment under appeal, held that the prosecution has proved the guilt of the accused persons for the aforesaid charge, consequently, convicted the appellants for the offence punishable under Section 306 read with 34 of IPC and sentenced each of them to undergo Simple Imprisonment for 10 years and to pay fine of Rs.25,000/- each. Aggrieved by the said judgment of conviction and order of sentence, appellants are in appeal before this Court. 3. I have heard the learned counsel appearing for the appellants/accused as well as the learned High Court Government Pleader appearing for the Respondent-State. I have perused the records secured from the Court below. 4. In the facts and circumstances of the case, the points that arise for my consideration are,— (i) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court? (ii) Whether the learned Sessions Judge is not justified in convicting the appellants-accused for the offence punishable under Section 306 read with 34 of IPC? 5. The case of the prosecution in brief is that, Accused Nos. 1 and 2 are the brothers of Accused No. 3. There was one more accused namely, sister of Accused No. 3 by name Hasina Banu. However, she died during the pendency of the case, therefore, the case against her was closed as abated. The deceased Shariff was the husband of Accused No. 3. Their marriage had been solmnized about nine years prior to the death of the deceased Shariff. From out of the said wedlock, Accused No. 3 had given birth to two children. When Accused No. 3 was in her third pregnancy, the deceased Shariff developed illicit relationship with CW.5-Saraswathi. 6. On coming to know of the same, Accused Nos. 1 to 3 started quarrelling with the deceased. From out of the said wedlock, Accused No. 3 had given birth to two children. When Accused No. 3 was in her third pregnancy, the deceased Shariff developed illicit relationship with CW.5-Saraswathi. 6. On coming to know of the same, Accused Nos. 1 to 3 started quarrelling with the deceased. There were certain instances of assault on the deceased by Accused Nos. 1 and 2 at the instance of Accused No. 3. Accused Nos. 1 to 3 also had demanded the deceased to cut-off his relationship with CW.5 and to live with Accused No. 3. There were police complaints in this regard and an undertaking also had been given by the deceased. However, in spite of the same, differences between Accused Nos. 1 to 3 on the one hand and the deceased on the other hand persisted. On 29.11.2001, when the deceased came near his Gujari shop run by him, Accused No. 3 was found there and at that time, a quarrel ensued between Accused Nos. 1 to 3 and the deceased. At that time, the deceased was assaulted by Accused Nos. 1 to 3 with bottle and an Iron-rod and in that regard, a complaint to the police was filed. The police summoned the accused and others and tried to pacify the differences and as per the direction of the police, an undertaking was executed and at about 2.00 p.m., when the deceased was near the shop, Accused Nos. 1 to 3 came there and again assaulted him and threatened that it is better for him to die by consuming poison, otherwise they would kill him. It is in that background, the deceased consumed poison in a bid to commit suicide, on 3.12.2001. Immediately, he was shifted to District Hospital at Chikmagalur, from where, he was taken to Nanjappa Hospital at Shimoga, where he took treatment up to 12.12.2001, on which day, he breathed his last. While he was taking treatment in Nanjappa Hospital at Shimoga, on 5.12.2001, his statement came to be recorded as per Ex.P.1 by P.W. 8:Gangegowda-Head Constable of Chikmagalur Police Station, based on which, the case in Crime No. 250/2001 for the offences punishable under Sections 504, 324, 506 read with 34 of IPC came to be registered. After the death of the deceased, the dead body was subjected to post-mortem examination by P.W. 3-Dr. H. Nagaraj, Senior Specialist in Mc. Gann Hospital at Shimoga. After the death of the deceased, the dead body was subjected to post-mortem examination by P.W. 3-Dr. H. Nagaraj, Senior Specialist in Mc. Gann Hospital at Shimoga. During post-mortem examination,7 he preserved viscera and viscera alongwith the stomach wash were sent to chemical examination. On examination of the viscera and stomach wash, P.W. 7:N.R. Naik-Scientific Officer, FSL, Chikmagalur, furnished his opinion as per Ex.P.5 to the effect that no poison was detected in the viscera, however, Organo Phosphorus poison was found in the stomach wash. On the basis of the said report, P.W. 3 furnished his final opinion stating that the death was due to respiratory failure as a result of Organo phosphorus poison detected in the stomach wash. On the basis of the said final opinion, the offence under Section 306 read with 34 of IPC was added and after completing investigation, charge sheet came to be filed only for the offence punishable under Section 306 read with 34 of IPC. 7. The evidence on record no doubt establishes that the deceased was brought to Nanjappa Hospital at on 3.12.2001 from the District Hospital, Chikmagalur and he was treated as inpatient in that hospital till his death on 12.12.2001. One of the essential ingredients to constitute the offence under Section 306 of IPC is suicidal death. In the case on hand, the trial Court has proceeded on the assumption that the death of the deceased was suicidal. As noticed supra, the final opinion furnished by P.W. 3 as to the cause of the death was respiratory failure as a result of Organo Phosphorus poison found detected in the stomach wash. Thus, from the above opinion it is clear that the said opinion was based on the report of the chemical examiner with regard to the presence of Organo Phosphorous poison in the stomach wash. Scanning of the entire evidence available on record does not clearly establish as to when and where the stomach wash was collected. According to the evidence of P.W. 2-Dr. R.D. Heggde of Nanjappa Hospital, the patient by name Shariff was referred to Nanjappa Hospital from District Hospital, Chikmagalur and on 5.12.2001, the patient was capable of giving statement, so the police recorded his statement as per Ex.P.1. It is his further say that after 5.12.2011, his health was deteriorated and on 12.12.2001 he breathed his last. R.D. Heggde of Nanjappa Hospital, the patient by name Shariff was referred to Nanjappa Hospital from District Hospital, Chikmagalur and on 5.12.2001, the patient was capable of giving statement, so the police recorded his statement as per Ex.P.1. It is his further say that after 5.12.2011, his health was deteriorated and on 12.12.2001 he breathed his last. Thereafter, the dead body was sent to post-mortem examination to Mc. Gann Hospital at Shimoga. In the brief examination-in-chief of P.W. 2, has not stated as to whether the stomach wash was collected in Nanjappa Hospital at Shimoga. From the evidence of P.W. 2 it is clear that the deceased was first taken to District Hospital at Chikmagalur, but, no documentary evidence as to the treatment given in the District Hospital at Chikmagalur, is produced. It is not forthcoming as to whether stomach wash was given in the District Hospital at Chikmagalur. Whenever a person is taken to any hospital with the history of consumption of poison, the first treatment to be given would be stomach wash, so that the poison taken orally does not percolate into the digestive track and assimilate into the blood stream. The purpose of giving stomach wash is to wash-out the poisonous material to the extent possible so as to prevent the poison getting into the blood stream. It cannot be said that the District Hospital in Chikmagalur, would not have a facility to give stomach wash. If the deceased had been taken to District Hospital at Chikmagalur with the history of consumption of poison, I am sure that the Doctors in the said hospital would have given stomach wash as the first treatment. However, there is absolutely no evidence on record to indicate as to what kind of treatment was given in the District Hospital at Chikmagalur. Though on the very same day, the deceased was brought to Nanjappa Hospital at Shimoga, from the examination-in-chief of P.W. 2 it is not forthcoming as to whether such kind of initial treatment of stomach wash was given. In the cross-examination of P.W. 2, he has denied the suggestion that the patient was brought to the hospital in an unconscious state. He has voluntarily stated that by giving oxygen by washing the stomach he was treated, when he was admitted to the said hospital. In the cross-examination of P.W. 2, he has denied the suggestion that the patient was brought to the hospital in an unconscious state. He has voluntarily stated that by giving oxygen by washing the stomach he was treated, when he was admitted to the said hospital. He has further stated in the cross examination that the container of stomach wash was given to police. According to him, stomach wash collected at the time of admission of the patient was taken to the police on 13.12.2001. He has denied further suggestion that they collected stomach wash only after the death of the deceased. 8. P.W. 9-M.A. Nataraj, who is the Investigating Officer in this case has not stated anything about the date on which he received the container of stomach wash. He speaks only about sending viscera to the FSL. If really the stomach wash had been collected on 3.12.2001 itself, immediately it ought to have been handed over to the police so as to subject the same to the chemical examination to ascertain whether the patient had consumed poison, if so what kind of poison. There was no purpose in keeping the stomach wash for over ten days in the hospital. Therefore, the evidence on record regarding collection of the stomach wash is not free from doubt. The stomach wash handed over to the police after the death of the deceased and the contents thereof has been made the basis for the opinion furnished by the Doctor as to the cause of death. Therefore, in my opinion, the evidence on record is not satisfactory with regard to the nature of the death of the deceased. 9. P.W. 1, the brother of the deceased admits that for about six months prior to the death, the deceased was addicted to liquor. P.W. 3-Dr. H. Nagaraj has admitted in the cross-examination that, if one takes much alcohol, it may cause respiratory problem. The fact that the viscera did not contain any poisonous material also creates a doubt about the contents of the stomach wash. P.W. 3-Dr. H. Nagaraj has admitted in the cross-examination that if there is absorption of poison by vital organ, then only the person would die. It was also elicited from P.W. 3 in the cross-examination that if proper treatment is given immediately, there would be no absorption of poison by vital organs. P.W. 3-Dr. H. Nagaraj has admitted in the cross-examination that if there is absorption of poison by vital organ, then only the person would die. It was also elicited from P.W. 3 in the cross-examination that if proper treatment is given immediately, there would be no absorption of poison by vital organs. He has admitted the suggestion that the absorption will take place within two to three hours. On the basis of this answer, if we consider the basis of the opinion of the chemical examiner that, no poison was detected in the viscera, it is clear that either there was no consumption of poison or the poison had been washed-out within two to three hours. 10. As noticed supra, at the first instance, the patient was taken to District Hospital at Chikmagalur and from there, he was brought to Nanajappa Hospital at Shimoga. Therefore, by the time the deceased was brought to Nanjappa Hospital, it must be more than two to three hours after the alleged consumption of poison. Since no poison was detected in the viscera, if the deceased had consumed poison, it must have been taken-out before two to three houses, which in all probability should be in the District Hospital at Chikmagalur. However, no such evidence is available on record. On the basis of the contents of the stomach wash said to have been handed over to police after the death of the deceased, which was nearly about 10 days 14 after the alleged date of the alleged consumption, it is highly difficult to come to the conclusion that the death of the deceased was due to consumption of poison, as such, it was suicidal. In this view of the matter, the prosecution, in my opinion, has not been able to satisfactorily establish the death of the deceased as suicidal. Apart from this, having regard to the case projected by the prosecution, even if it is assumed for the purpose of argument that the accused persons threatened the deceased that it is better for him to die by consuming poison lest they would kill him, by itself cannot be termed as an abetment for commission of suicide. 11. Apart from this, having regard to the case projected by the prosecution, even if it is assumed for the purpose of argument that the accused persons threatened the deceased that it is better for him to die by consuming poison lest they would kill him, by itself cannot be termed as an abetment for commission of suicide. 11. The Apex Court in the case of Sanju @ Sanjay Singh Sengar vs. State of Madhya Pradesh, (2002) SCC (Crl.) 1141 while dealing with the scope of Section 107 of IPC, which defines ‘Abetment’, has observed that, even if it is the case of the prosecution that the appellant therein did tell the deceased to ‘go and die’, that itself does not constitute the ingredient of ‘instigation’ occurring in Section 107 of IPC, as such, on that ground the accused cannot be held as having abetted commission of suicide. Even according to the case of the prosecution, the deceased had developed illicit relationship with CW.5 and this was being objected to by Accused Nos. 1 to 3. Accused No. 3 is admittedly the legally wedded wife of the deceased, therefore, she had every right to object for the deceased developing illicit relationship with another married woman. Naturally, Accused Nos. 1 and 2, being the brothers of Accused No. 3, must have objected for such acts of the deceased. In that background there might be some quarrel between them and in a bit of anger during the quarrel, if some words had been uttered, that by itself cannot be intended to instigate the deceased to commit suicide. Therefore, even it if it is assumed for the purpose of argument that the deceased has committed suicide by consuming poison, it cannot be said that the appellants/accused persons have in any way abetted such commission of suicide by the deceased. 12. Perusal of the judgment under appeal indicates that the learned Sessions Judge has not considered these aspects properly and has merely proceeded to accept the evidence of the witnesses and has come to the conclusion that the accused by threatening the deceased have abetted commission of suicide by the deceased. 12. Perusal of the judgment under appeal indicates that the learned Sessions Judge has not considered these aspects properly and has merely proceeded to accept the evidence of the witnesses and has come to the conclusion that the accused by threatening the deceased have abetted commission of suicide by the deceased. The learned Sessions Judge has failed to consider that the alleged basis for the deceased to consume poison as per his statement-Ex.P1 was the incident of assault which had taken place earlier and the insult done by the accused in the public view and the threatening given to him by the accused. Though on the basis of the said complaint initially case was registered for the offences punishable under Sections 324, 504 and 506 of IPC, ultimately while filing the charge sheet, all those offences were given-up and the charge sheet came to be filed only for the offence punishable under Section 306 read with 34 of IPC. The accused persons were charged only for the offence punishable under Section 306 of IPC. Under these circumstances, I am of the opinion that the judgment under appeal is highly perverse and illegal being contrary to the facts and circumstances of the case. The findings recorded by the learned Sessions Judge are highly perverse and are not based on the proper appreciation of evidence on record, as such, the judgment under appeal cannot be sustained. 13. Having regard to the discussion made above, I am of the considered opinion that the prosecution has failed to prove that the accused persons are guilty of the offence punishable under Section 306 read with 34 of IPC, therefore, they are entitled for an order of acquittal. 14. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence dated 29.11.2005 passed by the Presiding Officer, Fast Track Court-II, Chikmagalur, in S.C. No. 88/2002 convicting the Appellants/Accused Nos. 1 to 3 for the offence punishable under Section 306 read with 34 of IPC, is hereby set aside. The Appellants/Accused Nos. 1 to 3 are acquitted of the charge levelled against them. 15. The bail and surety bonds executed by the Appellants/Accused Nos. 1 to 3 are ordered to be discharged. 16. The fine amount, if any deposited by the Appellants/Accused Nos. 1 to 3, is ordered to be refunded to them.