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Karnataka High Court · body

2018 DIGILAW 767 (KAR)

S. Ravi, S/o Siddaramu v. State of Karnataka

2018-07-03

K.SOMASHEKAR

body2018
JUDGMENT : This appeal is preferred by the appellants/accused against the judgment of conviction and order of sentence passed by the IV Additional Sessions Judge, Mysore in S.C. No. 87/2011 dated 24.03.2012 convicting accused Nos. 1 to 4 under Section 306 read with Section 34 IPC and sentencing them to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- each and in default to undergo simple imprisonment for a further period of six months. 2. Factual matrix of the appeal is as under : Accused Nos. 1 to 4 were engaged in chit business. The deceased, Srikanth was also a member of the chit fund business run by the accused. One Ravi Mestru and his mother were also members of the chit. Ravi and his mother had taken the chit amount for which Srikanth stood as surety. But however, the said Ravi mestru and his mother did not repay the monthly installments. Therefore, accused Nos.1 to 4 insisted Srikanth to pay the chit amount since he stood as surety. Accordingly Srikanth was regularly paying the amounts towards the chit. Inspite of it accused Nos.1 to 4 were demanding Srikanth to pay more and more amount. On 21.06.2009 at 8.30 p.m. accused Nos. 1 to 4 are said to have come to the house of Srikanth and quarreled with him stating that he had not paid the chit amount of Ravi Mestru and his mother. Inspite of Srikanth promising to pay the said amount the accused persons had assaulted him and abused him in vulgar language. Srikanth who was very much ashamed and embarrassed due to the act of the accused, being unable to tolerate the situation he is said to have committed suicide on 22.06.2009 at about 11.00 p.m. by hanging himself in his room situated at Mysore. It is the accused persons who had abetted Srikanth to commit suicide. In pursuance of the act of the accused a complaint came to be filed by P.W.3 Shanthamma, the mother of the deceased and the crime came to be registered by P.W.8 by recording an FIR as per Ex.P.11. It is the accused persons who had abetted Srikanth to commit suicide. In pursuance of the act of the accused a complaint came to be filed by P.W.3 Shanthamma, the mother of the deceased and the crime came to be registered by P.W.8 by recording an FIR as per Ex.P.11. Subsequently the case was taken up for investigation by the aforesaid I.O. who has investigated the entire case by conducting inquest over the dead body of the deceased as per Ex.P.1 and also by conducting a mahazar as per Ex.P.2 and other mahazars as per Exs.P. 3 and P. 9 in the presence of P.Ws. 1, 2 and 3 and so also P.W.6 and P.W.10 respectively. 3. The Trial Court framed charges against the accused for the offence punishable under Section 306 R/w 34 IPC wherein the accused did not plead guilty but claimed to be tried. In order to establish the guilt of the accused the prosecution in all examined P.W.1 to P.W.11 and got marked several documents as Exs.P.1 to P.12 apart from getting marked M.O.1 to M.O.5. Ex.D.1 was got marked for the defence side. Subsequently, the court below on hearing the arguments advanced by the prosecution and defence counsel and on appreciating the evidence on record, convicted the accused for the offences under Section 306 read with Section 34 IPC. It is this judgment which is under challenge in this appeal. 4. Heard the arguments advanced by the learned counsel for the appellants and the learned Government Pleader for the State. 5. The learned counsel for the appellants has taken me through the evidence of P.W.3, the mother of the deceased Srikanth and also the complainant who has filed a complaint as per Ex.P6. Based upon her complaint crime came to be registered and P.W.8 investigated the case and laid a charge sheet against the accused. The learned counsel for the appellants contends that the Trial Court did not consider the plea of the accused that the demand of chit amount does not attract the ingredients of Section 107 of IPC. In a catena of cases the Supreme Court has held that demand of loan will not be an instigation to commit suicide. The learned counsel for the appellants contends that the Trial Court did not consider the plea of the accused that the demand of chit amount does not attract the ingredients of Section 107 of IPC. In a catena of cases the Supreme Court has held that demand of loan will not be an instigation to commit suicide. Further out of 11 witnesses examined for the prosecution P.W.1 a recovery mahazar witness has turned hostile and has not proved the seizures of M.O.1 to M.O.4 under Ex.P.1 and the death note Ex.P.5 under Ex.P.2. Similarly, P.W.2 who was expected to prove Ex.P.2 and P.3 and also about the circumstances has turned hostile and his statement before the police is marked as Ex.P.4. Moreover P.W.4, P.W.5 and P.W.9 who were supposed to speak about the incident who happened to be in the house of the deceased on the night of 21.06.2009 have also turned hostile to the case of the prosecution. Added to it P.W.6 and P.W.10 who were examined to prove the chit book from the house of accused No.1 under Ex.P.9 Mahazar have also turned hostile. 6. The learned counsel further submits that the Court below heavily relied on the evidence of P.W.3 Shanthamma, the mother of the deceased and P.W.7 Vinutha, the sister of the deceased and the death note Ex.P.5 to hold the accused guilty of the offence under Section 306 IPC. The court below further had totally ignored the admissions made in the cross-examination of P.W.3 and P.W.7 and omissions and contradictions in the evidence of above witnesses. It is the further submission of the learned counsel that the suicide note Ex.P.5 coming into surface itself is under doubtful circumstances. Though Ex.P.5 was not sent for handwriting expert opinion, the court below believed Ex.P.5 in coming to the conclusion that the accused were responsible for the suicide of Srikanth. Though all the material witnesses had turned hostile, the Court below believed the evidence of interested witnesses P.W.3 and P.W.7 who were none other than the mother and sister of the deceased to convict the accused. 7. Moreover, the learned counsel submits that the court below did not consider the contradictory versions in the evidence of P.W.1, P.W.3, P.W.7 and P.W.8. 7. Moreover, the learned counsel submits that the court below did not consider the contradictory versions in the evidence of P.W.1, P.W.3, P.W.7 and P.W.8. According to P.W.3 she had not given any complaint at 8.30 a.m. but the I.O.P.W.8’s version is that the complaint was given at 8.30 a.m. But P.W.1 has deposed to the effect that the police had come to the residence of P.W.3 at 6.00 or 6.30 a.m. and the complaint was given at that time. Even according to P.W.7, police had come at 7.00 p.m. to their house. Thus the very lodging of the complaint by P.W.3 itself gives rise to serious doubt. Apart from this there is inordinate delay in sending the FIR to the Magistrate. The I.O. P.W.8 has admitted in the cross examination that he sent the FIR at 9.15 a.m. to the house of the Magistrate which was reachable within 20 minutes. Thus the FIR should have reached the Magistrate by 10.00 a.m. However, the FIR actually reached the Magistrate at 9.00 p.m. on 23.06.2009. This delay casts suspicion on the complaint and there is no explanation forthcoming for the delay. Thus from the evidence of P.W.3, P.W.7 and P.W.8 it is gathered that the complaint was not lodged at 6.00 a.m. or 8.30 p.m. but after much deliberation on that day. The trial judge did not consider one more important point about Ex.P5. P.W.3 has not stated about Ex.P5 in her statement during inquest proceedings. Apart from this, P.W.3 has stated in the Chief Examination that she gave Ex.P.5 in the Police Station and Mahazar Ex.P.3 was drawn at that time. But in the cross examination she says that Ex.P.5 was found by the Police at 6.00 a.m. when they had come to the house and she has not given it to the police. All these materials discrepancies and 11 hours delay in the sending the FIR to the Magistrate make it clear that Ex.P.5 was a planted suicide note. He submits that it is an admitted fact that Ex.P.5 was not given to police when P.W.3 gave the complaint. Though inquest proceedings were drawn between 9.45 a.m. to 12.15 p.m. none of the witnesses including the mother and sister of the deceased had whispered any word about Ex.P.5. The I.O. P.W.8 has stated in the cross examination that Ex.P.5 was not traced at the time of drawing inquest proceedings. Though inquest proceedings were drawn between 9.45 a.m. to 12.15 p.m. none of the witnesses including the mother and sister of the deceased had whispered any word about Ex.P.5. The I.O. P.W.8 has stated in the cross examination that Ex.P.5 was not traced at the time of drawing inquest proceedings. P.W.7, sister of the deceased has not stated anything about Ex.P.5. Unfortunately, the Trial Judge did not appreciate the above facts while delivering judgment. 8. Moreover, the trial judge did not comment on Ex.D.1 which was obtained by the accused under the Right to Information Act. Ex.D.1 pertains to the endorsement made by the Saraswathipuram Police on the complaint of deceased Srikanth against accused. In the endorsement it is mentioned that the dispute is civil in nature and it also bears the signature of Srikanth. It is visible to the naked eye that the signature found is Ex.P.5 and Ex.D.1 is different and the court below should have formed an opinion about the signature of Srikanth by virtue of the powers under Section 73 of Indian Evidence Act, 1872. Moreover, P.W.3 has admitted that her son Srikanth has studied up to PUC. But the language and writing in Ex.P.5 clearly shows that a person of that qualification would not write such a letter. Hence, he submits that the court below has totally failed to consider the omissions, contradictions, improvements and discrepancies found in the evidence of P.W.3, P.W.7 and P.W.8 and also the serious suspicion raised in the matter of suicide note Ex.P.5. 9. Further, the learned counsel submits that the court below failed to consider the fact that the deceased was having suicidal tendency. P.W.3, the complainant who is his mother has admitted in her cross examination that her husband and her other son committed suicide for no reason. The fact that the accused came to the house of deceased on the night of 21.06.2009 and quarreled with the deceased in connection with payment of chit amount even if admitted, it does not hold accused guilty for an offence under Section 306 of IPC. The death of Srikanth has also caused loss to the accused on par with P.W.3 and P.W.7 since if he were alive, he would have been paying the monthly instalments. The death of Srikanth has also caused loss to the accused on par with P.W.3 and P.W.7 since if he were alive, he would have been paying the monthly instalments. Hence, the learned counsel submits that Srikanth had committed suicide only due to the suicidal tendency in the family of the deceased and hence the court below committed an error in convicting the accused under Section 306 read with Section 34 IPC and sentencing him to undergo imprisonment as aforesaid. 10. Further, the learned counsel has placed reliance on a number of rulings of the Apex Court and High Courts wherein it is held that demand made for payment of loan will not constitute an abetment as defined in Section 107 of IPC and also it will not attract an offence under Section 306 IPC. 11. In view of the fact that the court below having grossly erred in ignoring the number of lapses and inconsistencies in the prosecution case and wrongly held the appellants/accused guilty of the offence punishable under Section 306 of IPC, the learned counsel pleads that the judgment of the court below be set aside and the accused be acquitted of the offences alleged. 12. Per contra, the learned Government Pleader seeks to support the impugned judgment of conviction and sentence passed by the court below and contends that the court below, on a proper appreciation of the materials and the evidence on record, has rightly come to the conclusion that the accused persons had abetted the suicide of the deceased Srikanth and hence, the judgment of conviction passed by the court below does not call for any interference. 13. On hearing the arguments of the learned counsel for both the parties and on going through the records as well as the authorities placed in support of the circumstances of the case, I find that the court below has failed to appreciate the evidence on record in a proper perspective and has mechanically accepted the prosecution versions without trying to decipher the truth from the falsehood and thereby a serious miscarriage of justice has resulted to the appellants. It is gathered from the facts that Accused Nos.1 to 4/appellants herein were engaged in chit business to which the deceased, Srikanth was also a member. It is gathered from the facts that Accused Nos.1 to 4/appellants herein were engaged in chit business to which the deceased, Srikanth was also a member. One Ravi Mestru and his mother were also members of the chit and the said Ravi and his mother had withdrawn the chit amount for which Srikanth stood as surety. But however, the said Ravi mestru and his mother did not repay the monthly installments. Therefore, accused Nos.1 to 4 insisted Srikanth to pay the chit amount since he stood as surety. Accordingly, Srikanth was regularly paying the amounts towards the chit. On 21.06.2009 at 8.30 p.m. the accused are said to have come to the house of Srikanth and demanded to pay the chit amount and had assaulted him and abused him in vulgar language. It is said that due to the embarrassment caused due to the said incident, Srikanth committed suicide. Section 107 of the IPC clarifies as to what is ‘abetment of a thing’, which reads as under: “107. Abetment of a thing.—A person abets the doing of a thing, who— First.—Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.” In a catena of decisions, the Hon’ble Apex Court as well as this court have specifically held that demanding the money that was borrowed cannot constitute abetment, for the person who has borrowed the money to commit suicide. This court, in the case of Lateefmiyan and Another vs. State of Karnataka By Badgal Police (ILR 2007 KAR 105), it is held that the pith and substance of Section 107 declares that there should be a positive intention on the part of the abettor that the victim should commit suicide as a consequence of his act. Further, the mere acts of cruelty without an intention or contemplation on the part of the accused that the deceased should commit suicide, cannot be a ground to hold the accused liable for abetment of suicide committed by the victim. Further, the mere acts of cruelty without an intention or contemplation on the part of the accused that the deceased should commit suicide, cannot be a ground to hold the accused liable for abetment of suicide committed by the victim. The Apex Court, in the case of Amalendu Pal alias Jhantu vs. State of West Bengal (2010) 1 SCC 707 has held 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. 14. On a cursory glance of the evidence of the material witnesses for the prosecution, this court finds that they are contradictory to each other. Even the sudden emergence of the suicide note Exhibit P5 creates a serious doubt in the mind of this court. Moreover the handwriting in the suicide note when compared with the handwriting of Ex.D.1 pertaining to the complaint lodged by the deceased Srikanth against accused before the Saraswathipuram Police discloses that there is no similarity between the two handwritings. The suicide note has not been proved by the prosecution by obtaining the opinion of a handwriting expert after comparing the same with the admitted handwriting of Srikanth. Moreover, the court below has lost sight of the fact the complainant PW3 herself has admitted in her cross-examination regarding the suicidal tendency of their family. In that, her husband also had earlier committed suicide for no reason and her other son too had committed suicide for no reason. This is a strong circumstance which the court below has overlooked while convicting the accused. 15. In that, her husband also had earlier committed suicide for no reason and her other son too had committed suicide for no reason. This is a strong circumstance which the court below has overlooked while convicting the accused. 15. Demanding the money borrowed or the money due to a person cannot constitute abetment of suicide, as held by the Hon’ble Apex Court in a catena of decisions. Moreover, there are so many contradictions and inconsistencies in the statement of the witnesses for the prosecution. The court below has misdirected in not appreciating the evidence of PW3, PW7 and PW8 in a proper perspective. Further, the prosecution has failed to establish the ingredients of the offence under Section 306 IPC by producing cogent and reliable evidence to prove the guilt of the accused that the accused had abetted the deceased to commit suicide. Hence, I find that the court below has committed an error in convicting the accused since there is perversity in the impugned judgment. For the aforesaid reasons, the judgment of the court below requires intervention. Consequently, the appeal is allowed. The judgment of conviction and order of sentence held by the Trial Court in S.C. No. 87/2011 dated 24.03.2012 is hereby set aside. The accused are hereby acquitted of the charges levelled against them.