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2018 DIGILAW 414 (KAR)

State of Karnataka v. Shankar S/o Savalo Revankar

2018-03-20

B.A.PATIL

body2018
JUDGMENT : The present appeal has been preferred by the State being aggrieved by the judgment and order of acquittal dated 15.2.2012, passed by the Sessions Judge Fast Track Court-II Uttara Kannada Karwar, in SC.No.31/2005. 2. In nutshell, the case of the prosecution is that Prashanth Dattaram Anvekar was residing along with his wife Pallavi and son Manthan in a rented house at Kodibag, Shivajiwada, Karwar. Said Prashanth availed certain loans from the State Bank of Mysore and Karwar Urban Cooperative Bank Limited by offering accused as the guarantor for the said loans. It is further case of the prosecution that accused has received an amount of Rs.70,000/out of the loan amount sanctioned to the said Prashanth assuring him that he would pay higher interest than the Bank and subsequently he failed to pay the said amount with interest and thereby cheated the said Prashanth. For having not cleared the loan, Bank issued notice to both borrower Prashanth as well as guarantor accused to clear off the loan. In that guise, on 21.1.2003 at about 1.30 p.m, accused said to have gone to the house of Prashanth and informed his wife Smt.Pallavi about the notice issued by the Bank and asked her to inform her husband to clear off the loan. It is further case of the prosecution that again at about 7.00 p.m. On the very day accused went to the house of the said Prashanth and informed about the notice issued by the Bank and scolded him. He also asked him to clear off the said loans and threatened him that if he fails to do so, he would abduct his wife and ravish her. He also instigated the said Prasanth to go and die along with his wife and child by jumping into the sea or to end life by consuming poison by abetting them to commit suicide. The said act of the accused led all the three to consume poison and end their lives in their house. In this behalf, PW.1 filed a complaint, on the basis of which a case was registered in Crime No.13/2003 for the offences punishable under Sections 420 and 306 of IPC. 3. After completion of investigation charge sheet was laid as against the accused. In this behalf, PW.1 filed a complaint, on the basis of which a case was registered in Crime No.13/2003 for the offences punishable under Sections 420 and 306 of IPC. 3. After completion of investigation charge sheet was laid as against the accused. Thereafter, the jurisdictional Court took the cognizance and after furnishing the copy of the charge sheet to the accused, as the case was to be triable by the Sessions Court, the same was committed to the Sessions Court. After committal, the Sessions Court secured the presence of the accused and after hearing the learned counsel for the accused and the learned Public Prosecutor, the charge was framed. Accused pleaded not guilty and he claimed to be tried. Hence, the trial was fixed. 4. In order to prove its case, the prosecution in all has examined 17 witnesses as PWs.1 to 17 and got marked the documents at Exs.P1 to P44, however no Material Objects were got marked. 5. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating materials as against him. But accused denied the same. He has not led any evidence. After hearing the parties to the list he impugned judgment and order came to be passed acquitting the accused for the offences with which he was charged. Against the same, the State has preferred this appeal. 6. Learned HCGP appearing for the appellant State has contended that the learned Sessions Judge has not taken into consideration the evidence led by the prosecution and has erroneously passed the order of acquittal. PWs.1, 5 and 17 have categorically deposed that the accused came to the house of the deceased and abetted him to commit suicide along with his family members. Though the said evidence is available, without considering the said evidence, only on the hypothetical discussion, the trial Court has acquitted the accused. On plain reading of the said evidence, it inspires the confidence of the Court to show that the accused abetted the deceased to commit suicide. Under such circumstances, the trial Court ought to have convicted the accused. He further contended that the trial Court acquitted the accused only on the ground that no independent witnesses have been examined by the prosecution. Merely because the witnesses examined are relatives, their evidence cannot be discarded. Under such circumstances, the trial Court ought to have convicted the accused. He further contended that the trial Court acquitted the accused only on the ground that no independent witnesses have been examined by the prosecution. Merely because the witnesses examined are relatives, their evidence cannot be discarded. On these grounds, he prayed for allowing the appeal by setting aside the impugned order of acquittal and pleads for conviction of the accused. 7. Percontra, the learned counsel appearing for the respondent accused vehemently argued by justifying the impugned order of acquittal contending that there is no cogent and acceptable evidence to bring home guilt of the accused beyond all reasonable doubt. There is no evidence produced by the prosecution to show that it is the accused who provoked or instigated the deceased and his family members to commit suicide. He further contended that to hold a person guilty for abetment, there must be clear mensrea to commit the offence. In the absence of any such material, the Court cannot convict the accused. By believing the said evidence, the trial Court has rightly acquitted the accused. He further contended that there is a delay in registering the case. In the first instance an UDR case has been registered and only thereafter the documents have been created and a false case has been registered. The trial Court after considering the said material on record, has rightly acquitted the accused. The State has not made out any grounds to interfere with the order of acquittal and therefore he prayed for dismissal of appeal. 8. Before going to discuss the contentions raised by the learned counsel for the appellant, it is necessary in brief to summarize the evidence led by the prosecution. (i) PW.1 is the complainant and also one of the brothers of the deceased Prashanth. He has deposed that they were residing together. He has further deposed about the loan obtained by the deceased and accused stood as a guarantor and about accused taking the amount from the deceased by assuring that he would pay higher interest than the interest of the Bank. He has further deposed that on 21.1.2003, when he had been to Hubli the deceased informed that the accused had come and threatened him that if the loan is not cleared, he will abduct his wife. He has further deposed that on 21.1.2003, when he had been to Hubli the deceased informed that the accused had come and threatened him that if the loan is not cleared, he will abduct his wife. He further deposed that next day, i.e., on 22.1.2003 at about 3.00 p.m., deceased Prashanth, his wife Pallavi and his son committed suicide by consuming poison. After coming to know about the incident, he came and filed the complaint as per Ex.P1. During the course of cross-examination, PW.1 has deposed that they have raised loan by pledging the property for the purpose of development of silver business and he does not remember how much amount has been invested in the said business. Deceased also borrowed loan from Karwar Urban Bank and the same was not repaid. Except that nothing has been elicited from the mouth of this witness. (ii) PW.2 is the earlier owner of the house in which the family of the deceased was residing. He is also a panch-witness to the spot mahazarat Ex.P2 and inquest mahazar Ex.P31. (iii) PW.3 is also a witness to inquest mahazarat Ex.P31. (iv) PW.4 is the Commissioner of CMC who furnished the house property extract at Ex.P32. (v) PW.5 is another brother of the deceased, who has deposed that accused came to the house of the deceased at about 9.00 a.m. on 22.1.2003 and he quarreled with the deceased for nonpayment of the loan and he advised him to settle the loan and subsequently again in the evening, accused came and said the deceased that if he is not able to clear the loan, he should go and commit suicide. PW.5 also deposed about the accused threatening the deceased that he will abduct his wife if the loan is not cleared. During the course of crossexamination of this witness, he has deposed that he does not know that who gave the complaint and he was not having any objection to file the complaint. Within 45 minutes after he went to the place of incident, police came and opened the door by breaking open the lock. Except that nothing has been elicited. (vi) PW.6 is the Manager of the State Bank of Mysore who speaks about the loan application at Ex.P.34 and accused standing as a surety. He also speaks about the deceased giving cheque to the accused. Except that nothing has been elicited. (vi) PW.6 is the Manager of the State Bank of Mysore who speaks about the loan application at Ex.P.34 and accused standing as a surety. He also speaks about the deceased giving cheque to the accused. (vii) PW.7 is the Scientific Officer who furnished his opinion at Ex.P36. (viii) PW.8 is the Retired General Manager of Karwar Urban Bank, who has deposed that the deceased had availed loan from the said Bank. (ix) PW.9 is the PSI who conducted the inquest over the body of the deceased Pallavi, the wife of Prashanth as per Ex.P39. (x) PW.10 is the Police Inspector who recorded the complaint, registered the case and issued the FIR. (xi) PW.11 is the panchwitness to inquest mahazarat Ex.P39. (xii) PW.12 is the owner of the house, who speaks about residing of the deceased along with his family as a tenant in the house. (xiii) PW.13 is the Junior Engineer, who prepared the sketch of the scene of offence as per Ex.P41. (xiv) PW.14 is the Medical Officer, who conducted the postmortem examination and issued PM report as per Ex.43. (xv) PW.15 is the handwriting expert, who has examined the handwriting of the deceased on the death note and given his opinion at Ex.P44. (xvi) PW.16 is the CPI, who took further investigation of the case and after completion of the investigation he filed the charge sheet. (xvii) PW.17 is the neighbour, who has deposed that the accused came and informed about the return of the loan and said he should go and die along with his wife and son. 9. With the above evidence, let me consider whether the contentions taken up by the learned HCGP are justifiable. It is the contention of the learned HCGP that though there is evidence of PWs.5, 11 and 17 as against the accused, the trial Court has erroneously acquitted the accused without considering the material placed on record. On careful and cautious attention given to the evidence and records, it clearly goes to show that the deceased had borrowed huge loans from the different Banks and he was also a defaulter in repaying the said loans. The records also reveal that a suit was filed in this behalf. On careful and cautious attention given to the evidence and records, it clearly goes to show that the deceased had borrowed huge loans from the different Banks and he was also a defaulter in repaying the said loans. The records also reveal that a suit was filed in this behalf. Even as could be seen from the evidence of the Investigating Officer who recorded the complaint, it discloses the fact that on the basis of the statement given by PW.17, a case was registered in UDR No.4/2003 and the same was forwarded to the jurisdictional Tahasildar and thereafter the Investigating Officer has also recorded the statement of the witnesses. The said records have not been produced before the trial Court, but however, during the course of cross-examination, PW.10 has admitted that none of the witnesses, including PW.17 has stated anything against the accused for the suicidal death of the family members. Even when a mahazar was drawn they have recovered a glass jar, three plastic bottles and three ball pens under Ex.P2. But for the reasons best known to the Investigating Officer, the said seized articles have not been produced in this case. If really the said incriminating materials have been seized along with three pens, then under such circumstances and if police got doubted, they could have taken steps in this behalf to investigate the case. Be that as it may, when UDR case was registered, there was no explanation forthcoming by the prosecution as to why the writings of the deceased were not found and were not seized. In this behalf also, it creates a doubt in the case of the prosecution. 10. It is well established principle of law that if any incriminating material is seized and which is considered to be a material object, then non-production of the same creates a serious doubt in the case of the prosecution. This proposition of law has been laid down in the case of Durbal Vs. State of U.P., reported in AIR 2011 795. Keeping in view the ratio laid down in the aforesaid decision, non-production of the incriminating material created a doubt in the case of the prosecution. This proposition of law has been laid down in the case of Durbal Vs. State of U.P., reported in AIR 2011 795. Keeping in view the ratio laid down in the aforesaid decision, non-production of the incriminating material created a doubt in the case of the prosecution. On careful perusal of the evidence of PW.2 who is the panchwitness to spot mahazarat Ex.P2 under which the writing of the deceased is said to have been seized and the same is considered to be suicidal note of the deceased Prashanth. The said suicidal note does not bear the signature of the deceased Prashanth. It is not necessary that the said suicidal note must contain the signature of the deceased. But as per the evidence of PW.5, about 4 to 5 papers were lying apart from a ball pen and an empty bottle, but he has deposed that he has not read over those papers. If really, the said papers containing the suicidal note of the deceased and PW.5 being one of the brothers of the deceased could have at least gone through the said papers before taking any action in the matter. Under these circumstances, the alleged seizure of the letters said to have been written by the deceased as suicidal note making the accused responsible for the death of the deceased Prashanth and his family members, cannot be proved, that too when PW.5 has deposed that 4 to 5 papers were lying on the Dining Table apart from a ball pen and an empty bottle. If really the said articles were lying on the table, even an ordinary man could notice them, but the fact that PW.5 has not read those papers and noticed the other articles which were lying on the table itself creates a doubt. PW.5 entered the house along with the police, but he has not stated anything about the said aspect when an UDR case has been registered. It is the case of the prosecution that when the Investigating Officer visited the place of the incident, there were about 50 people gathered, except PW.17 no other witnesses were examined by the Investigating Officer or by the prosecution before the Court for the reasons best known to them. Non-examination of independent witnesses also creates a doubt in the case of the prosecution. 11. Non-examination of independent witnesses also creates a doubt in the case of the prosecution. 11. Be that as it may, it is the case of the prosecution that the accused visited the house of the deceased at about 1.30 p.m. on 21.1.2003 and told the deceased to clear the loan and again he visited at about 7.00 p.m. on the very day and threatened the deceased that if the deceased never clears the loan, he would abduct and ravish his wife. Accused also told the deceased that he should go and die along with his family members by consuming poison. 12. It is the case of the prosecution that accused-appellant abetted the deceased to go and commit suicide by jumping into sea or by consuming poison. The words ‘to go and commit suicide’ that itself does not constitute the ingredients of instigation. The word ‘instigate’ denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mensrea, therefore is the necessary concomitant or 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 mensrea. This proposition of law has been laid down by the Apex Court in the case of Sanju @ Sanjay Singh Sengar Vs. State of M.P. reported in (2002)5 SCC 371 . Therefore, in the instant case, similar facts and circumstances are being existed and prosecution has not proved the presence of mensrea the accused is to be entitled for the said benefit. 13. Be that as it may, even on careful perusal of the prosecution evidence and the materials on record, the prosecution has not established its case that the accused was guilty of willful conduct which was of such a nature as it was likely to drive the deceased to commit suicide along with his family members. The records would disclose that the deceased Prashanth had borrowed huge loans in various Banks and he did not clear the said loans and a suit was also pending in this behalf. Even the evidence on record depicts that the deceased was a person with hypertension and heavily indebted. In that light, he might have thought it proper to commit suicide. There is no direct or indirect evidence to show that the accused abetted the deceased to commit suicide. Even the evidence on record depicts that the deceased was a person with hypertension and heavily indebted. In that light, he might have thought it proper to commit suicide. There is no direct or indirect evidence to show that the accused abetted the deceased to commit suicide. The evidence produced is not sufficient to accept and to hold that the prosecution has proved the guilt of the deceased beyond all reasonable doubt. Looking from any angle, do not find any cogent and acceptable evidence so as to prove the guilt of the accused. In that light, the order passed by the trial Court acquitting the accused for the offences with which he was charged, appears to be just and proper. I have carefully and cautiously gone through the records, including the impugned judgment passed by the trial Court. The impugned judgment and order is neither capricious nor erroneous so as to interfere with the same. 14. On perusal of the entire evidence, there appears to be two possible views. The present appeal is against the order of acquittal, this Court normally would be slow in interfering with order of acquittal even if a second view is possible. In my considered opinion, the view taken by the trial Court is one of the possible views to be taken under the facts and circumstances of the case. Hence, no interference is called for. Accordingly, appeal is dismissed being devoid of merits.