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2016 DIGILAW 178 (KAR)

Doddathayamma v. State of Karnataka

2016-02-22

A.N.VENUGOPALA GOWDA

body2016
JUDGMENT : The appellants have challenged the legality of the Judgment of conviction and Order of sentence dated 01.03.2010 passed in S.C.No.316/2007 by the IV Addl. District and Sessions Judge at Mysore. By the said Judgment, the appellants were convicted for the offence punishable under S.306 read with S.114 of IPC and sentenced to undergo simple imprisonment for 4 years and pay fine of Rs.2,000/each and in default of payment of fine to undergo simple imprisonment for a further period of one month each. 2. Facts necessary for consideration and disposal of this appeal and as presented by the prosecution can be stated as follows: Smt.Padmamma, wife of Sri C. Ramachandra (PW1), was a Secretary of Haropura Milk Producers Women Cooperative Society (‘the Society’ for short). She was suspended from duty on 14.02.2004 by the Management Committee of the Society. The order of suspension was challenged before the Assistant Registrar of Cooperative Societies at Hunsur and an order of stay was passed. Thereafter, Padmamma had gone to the Society to join duty and the accused being the Directors and the employees of the Society, did not allow her to join duty. That on 01.04.2007, all the accused, abused Padmamma, and Shamshad Begum, accused No.13, instigated Doddathayamma, accused No.6, to assault Padmamma and accordingly, Doddathayamma (A6), spit on the face of Padmamma and assaulted her with a milk can and insulted her. That on 02.04.2007, in the morning and also in the evening, Smt.Nagamma (A1), the President of the Society, did not give the concerned register, in order to take the milk from the producers and all the accused abused Padmamma in filthy and indecent language. Because of the insult by the accused, Padmamma committed suicide in front of the Society by hanging herself at about 5.30 a.m., on 03.04.2007. Some children of the village having observed the same and intimated the fact to her husband (PW1), a complaint vide Ex.P2, was lodged and the FIR / Ex.P9 was registered in Crime No.66/2007 for the offences under Ss.143, 302, 114 and 149 of IPC. After conducting investigation, chargesheet was submitted to the JMFC at H.D. Kote, against 14 accused, for the offences punishable under Ss.143, 306, 114 read with S.149 of IPC. The case was committed to the Court of Sessions. The accused having appeared, the accusation was read over and they pleaded not guilty and claimed trial. 3. After conducting investigation, chargesheet was submitted to the JMFC at H.D. Kote, against 14 accused, for the offences punishable under Ss.143, 306, 114 read with S.149 of IPC. The case was committed to the Court of Sessions. The accused having appeared, the accusation was read over and they pleaded not guilty and claimed trial. 3. During the trial 16 witnesses were examined. On the side of defence 3 witnesses were examined. After the evidence was closed, accused were questioned under S.313 of Cr.P.C. The accused denied the incriminating statements made by the prosecution witnesses against them. On conclusion of trial, by the aforesaid Judgment, the Trial Court acquitted accused Nos.1 to 5, 7 to 12 and 14 i.e., all the Office bearers and Directors of the Society, of the offences punishable under Ss.143, 306 read with S.149 of IPC. However, accused Nos.6 and 13 i.e., the Milk Tester and the Secretary respectively of the Society were convicted for the offence punishable under S.306 read with S.114 of IPC and sentenced, as aforesaid. This appeal is directed against the said Judgment of conviction and Order of sentence. 4. Sri P.Nataraju, learned advocate, took this Court elaborately through the oral and documentary evidence and submitted that the Judgment of the Trial Court holding the appellants guilty of the offence punishable under S.306 read with S.114 of IPC, is based on the conjectures, full of contradictions and surmises. He submitted that there is no evidence to substantiate the charge leveled against the appellants. Learned counsel contended that there is complete misreading of oral and documentary evidence and the Trial Judge by strange reasoning has found the appellants guilty, despite there being no sufficient evidence to conclude that the appellants have committed the alleged offence. He submitted that in the absence of cogent and reliable evidence to establish the abetment to commit suicide by Padmamma, the conviction of the appellants under S.306 of IPC is liable to be set aside. He submitted that there is no evidence of infliction of any injury or intentional insult of the deceased, by the appellants i.e., immediately prior to the suicide committed by Padmamma and hence, it cannot be said that the appellants are the cause for Padmamma to commit suicide. 5. He submitted that there is no evidence of infliction of any injury or intentional insult of the deceased, by the appellants i.e., immediately prior to the suicide committed by Padmamma and hence, it cannot be said that the appellants are the cause for Padmamma to commit suicide. 5. In support of the case of the appellants, Sri P. Nataraju, placed reliance on the following decisions of the Apex Court, wherein, it was found and has been held as follows: (i) In MAHENDRA SINGH AND ANOTHER Vs. STATE OF M.P., 1995 SUPP (3) SCC 731, the allegation leveled was based on the dying declaration of the deceased stating my mother in law and husband and sister in law (husband’s elder brother’s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sisterinlaw. Because of these reasons and being harassed, I want to die by burning. On aforementioned allegations, Apex Court, came to the conclusion that by no stretch the ingredients of abetment is attracted i.e., on the basis of the statement made by the deceased. It was held that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It has been further held that to attract S.306 IPC, there has to be a clear mens rea to commit the offence. It has been concluded that, merely on the basis of aforesaid allegation of harassment of the deceased, the conviction under S.306 IPC cannot be directed much less sustained in law. (ii) In RAMESH KUMAR Vs. STATE OF CHHATTISGARH, (2001) 9 SCC 618 , the Court had the occasion to deal with a case, wherein, in a dispute between the spouses, the husband uttered you are free to do whatever you like and go wherever you like. Thereafter, the wife of the accused committed suicide. When the matter reached Apex Court, by examining the different aspects of the meaning of ‘instigation’, it has been elaborated as follows: “20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". Thereafter, the wife of the accused committed suicide. When the matter reached Apex Court, by examining the different aspects of the meaning of ‘instigation’, it has been elaborated as follows: “20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” (emphasis supplied) (iii) In CHITRESH KUMAR CHOPRA Vs. STATE (GOVERNMENT OF NCT OF DELHI), (2009) 11 SCALE 24 , Apex Court had occasion to deal with the aspects relating to abetment and it has been opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from others and each person has his own idea of selfesteem and selfrespect and therefore it is impossible to lay down any straightjacket formula in dealing with such cases and that each case has to be decided on the basis of its own facts and circumstances. (iv) In STATE OF WEST BENGAL Vs. ORILAL JAISWAL AND ANOTHER, (1994) 1 SCC 73 , Apex Court has cautioned, that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in trial for the purpose of finding, whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. ORILAL JAISWAL AND ANOTHER, (1994) 1 SCC 73 , Apex Court has cautioned, that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in trial for the purpose of finding, whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. It was made clear that, if it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. 6. Sri B.Visweswaraiah, learned HCGP, on the other hand, supported the impugned Judgment and sought dismissal of the appeal. 7. Perused the record. Having regard to the rival contentions, point for consideration is “whether the prosecution has established that the accused Nos.6 and 13 abetted the commission of suicide by Padmamma?” 8. The Trial Court has held that the evidence of PWs.1, 4, 5, 7 and 8 does not establish that the accused Nos.1 to 5, 7 to 12 and 14 abetted or instigated Padmamma to commit suicide. However, the Trial Court has held that the prosecution has established by the evidence of PWs.1 to 4, 5, 7 and 8 ‘that the conduct and acts of the accused Nos.6 and 13’ forced Padmamma to commit suicide. 9. The State has not preferred an appeal against the Judgment of acquittal recorded by the Trial Court in respect of the accused Nos.1 to 5, 7 to 12 and 14 (i.e., the Office bearers and Members of the Managing Committee of the Society), who, were also charged along with the appellants (employees of the Society), for the aforesaid offences. 10. S.306 of IPC deals with abetment of suicide and S.107 of IPC deals with abetment of a thing. There is clear exposition of law on S.107 of IPC by the Apex Court, in KISHORI LAL Vs. STATE OF M.P., 2007 (10) SCC 797 . It has been held as follows: “6. Section 107 IPC defines abetment of a thing. 10. S.306 of IPC deals with abetment of suicide and S.107 of IPC deals with abetment of a thing. There is clear exposition of law on S.107 of IPC by the Apex Court, in KISHORI LAL Vs. STATE OF M.P., 2007 (10) SCC 797 . It has been held as follows: “6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1)he instigates any person to do that thing; or (2)engages with one or more other persons in any conspiracy for the doing of that thing; or (3)intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. “Abetted” in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.” (emphasis supplied) 11. In RANDHIR SINGH AND ANOTHER Vs. STATE OF PUNJAB, (2004) 13 SCC 129 , the legal position as regards S.306 of IPC has been settled by the Apex Court, as follows: “12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.” 12. In AMALENDU PAL ALIAS JHANTU Vs. STATE OF WEST BENGAL, (2010) 1 SCC 707 , after survey of the previous decisions, with regard to the approach to be adopted before holding the accused guilty of an offence, under S.306 IPC, Apex Court has held as follows: “12. In AMALENDU PAL ALIAS JHANTU Vs. STATE OF WEST BENGAL, (2010) 1 SCC 707 , after survey of the previous decisions, with regard to the approach to be adopted before holding the accused guilty of an offence, under S.306 IPC, Apex Court has held as follows: “12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.” (emphasis supplied) 13. In M. MOHAN Vs. STATE, 2011 CRL. L.J. 1900, it has been held as follows: “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 mensreato 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.” 14. In the present case, the prosecution alleged, that on 01.04.2007, all the accused abused Padmamma and, accused No.13 instigated the accused No.6, to assault Padmamma and accordingly, accused No.6 spit on the face of Padmamma and also assaulted her with a milk can and insulted her. In the present case, the prosecution alleged, that on 01.04.2007, all the accused abused Padmamma and, accused No.13 instigated the accused No.6, to assault Padmamma and accordingly, accused No.6 spit on the face of Padmamma and also assaulted her with a milk can and insulted her. It was further alleged that on 02.04.2007, Padmamma was not given the register by accused No.1, in order to take milk from the producers and that all the accused insulted Padmamma in filthy and indecent language, as a consequence, Padmamma committed suicide at about 5.30 a.m., on 03.04.2007. The Trial Court has disbelieved all the allegations made against accused Nos.1 to 5, 7 to 12 and 14 and they were acquitted of the charged offences. 15. PW1 having lodged the complaint on 03.04.2007, as per Ex.P2, the FIR vide Ex.P9 was registered. The allegation made is that Padmamma was not allowed to join duty and accused No.6 spit on the face of Padmamma and attempted to assault her with a milk can on 01.04.2007 i.e., on the instigation by accused No.13. No complaint was lodged by Padmamma with regard to the said incident. That, on 02.04.2007, accused Nos.6 and 13 have not provoked or incited Padmamma, to end her life by committing suicide. Padmamma has not left any death note. The evidence of PW1 shows that 10 to 20 persons were present on 01.04.2007, when the alleged incident occurred. No independent witness has deposed with regard to the alleged incident of 01.04.2007. There is no credible evidence in proof of accused No.13, by her act, having instigated accused No.6, and in turn, accused No.6 having spit on the face of Padmamma and assaulted her with a milk can, and that act having provoked Padmamma to commit suicide. 16. From the evidence brought on record by the prosecution, the case against the accused Nos.1 to 5, 7 to 12 and 14 having been disbelieved, there is no credible evidence on the basis of which the Trial Judge could have found the accused Nos.6 and 13 guilty of the charged offence to pass the Judgment of conviction. There being no positive action on the part of the appellants, instigating or aiding the committing of suicide by Padmamma, the finding of guilt recorded by the Trial Court against the accused Nos.6 and 13 is perverse. There being no positive action on the part of the appellants, instigating or aiding the committing of suicide by Padmamma, the finding of guilt recorded by the Trial Court against the accused Nos.6 and 13 is perverse. The case having not been proved beyond all reasonable doubts by the prosecution, the accused Nos.6 and 13 are entitled to the benefit of doubt. 17. Taking all aspects of the matter into consideration, the prosecution having not succeeded in establishing the offence under S.306 of IPC, the impugned Judgment holding the accused Nos. 6 and 13 guilty being a sanctuary of errors, cannot be sustained. In the result, the appeal is allowed and the Judgment of conviction and the Order of sentence passed on 01.03.2010, in S.C.No.316/2007, by the IV Addl. District and Sessions Judge, Mysore is set aside. Bail bonds of the appellants are cancelled.