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Karnataka High Court · body

2020 DIGILAW 707 (KAR)

Borappa S/o Mallappa Patil v. State of Karnataka

2020-03-12

B.A.PATIL

body2020
JUDGMENT : Assailing the judgment of conviction and order of sentence dated 06.08.2011 passed by the learned 5th Addl. Sessions Judge, Belgaum, in S.C. No. 12/2009 for the offence u/s 306 of IPC, the appellant-accused is before this Court. 2. I have heard the learned counsel for the appellant Sri S.H. Mitthalkod and the learned Addl. SPP for the respondent-State Sri V.M. Banakar. 3. PW19-Marulasiddappa, PSI of Gokak Police Station received a telephonic call from Govt. Hospital, Gokak, regarding admission of injured Smt. Asharani into the hospital. Immediately he rushed to the Hospital and secured the opinion of the Doctor on duty regarding her mental condition to give her statement. Thereafter, the statement of Asharani was recorded and a case has been registered in Crime No.129/2008. The contents of the complaint discloses that, on 29.04.2008 the said injured Asharani along with her classmates and teachers had been to excursion and they came back on 04.05.2008. It is further alleged that, since two months the accused-appellant was teasing her by seeing and also used to ill treat. Hence, he also had been to the excursion and he also threatened her. Because of the said act, on 05.05.2008 at about 2.45 a.m. she went to the kitchen of the hostel poured kerosene upon herself and lit fire and as a result of the same she made hue and cry. The watchman and the other inmates of the hostel came and doused the fire and got her admitted in the hospital. Thereafter, upon conclusion of the investigation charge sheet has been filed. The learned Magistrate after filing of the charge sheet committed the case to the Sessions Court after following the formalities. The Sessions Court took the cognizance, secured the presence of the accused and the charge was prepared, read over and explained to the accused. He pleaded not guilty and claimed to be tried and as such the trial was commenced. 4. In order to prove the case of the prosecution 22 witnesses have been examined and 33 documents and four material objects were marked. Thereafter the statement of the accused was recorded. The accused has not led any evidence. He pleaded not guilty and claimed to be tried and as such the trial was commenced. 4. In order to prove the case of the prosecution 22 witnesses have been examined and 33 documents and four material objects were marked. Thereafter the statement of the accused was recorded. The accused has not led any evidence. Learned Sessions Judge, after hearing the learned Public Prosecutor for the State and the learned counsel for the accused, came to the conclusion that the material produced by the prosecution is sufficient to hold the accused guilty of the charges leveled against him and convicted for the offences punishable u/s 306, 509, 506 and 109 of IPC. Challenging the legality and correctness, the appellant-accused is before this Court. 5. The main contention which has been raised by the learned counsel for the appellant-accused are that, the trial Court without appreciating the material placed on record contrary to the facts, erroneously convicted the accused-appellant. Though there were so many omissions and improvements in the case of the prosecution, they have been thrown to wind. It is his further submission that, in order to establish the case u/s 306 of IPC, the prosecution has to clearly establish the mens rea to commit such an offence and it also requires an active act or a direct act to lead the deceased to commit suicide. The said material is not available before the Court, even then the trial Court has convicted the accused. In order to substantiate the said contention he has relied upon the decision of the Hon’ble Supreme Court in the case of Wasim V. State NCT of Delhi (Criminal Appeal No. 1061 of 2019 [arising out of SLP (Crl.) No. 193 of 2019]). 6. It is his further contention that, to constitute an offence, the prosecution has to clearly establish the ingredients as contemplated u/s 107 of IPC, there must be an intention and involvement of the accused to aid or instigate commission of the suicide and it is imperative. If there is severance or absence of any of these constituents, under such circumstances, the accused ought to have been acquitted. In order to substantiate his argument, he relied upon the decision in the case of Gurucharan Singh V. State of Punjab reported in (2017) 1 SCC 433 . 7. If there is severance or absence of any of these constituents, under such circumstances, the accused ought to have been acquitted. In order to substantiate his argument, he relied upon the decision in the case of Gurucharan Singh V. State of Punjab reported in (2017) 1 SCC 433 . 7. It is his further submission that, if really the accused was teasing as alleged in the complaint and as per the case of the prosecution, definitely she could have disclosed the said fact either to the classmates, parents, class teacher, Principal or some other affectionate persons. But, the prosecution evidence clearly goes to show that no corroborative evidence is available and even the parents who came to be examined as PW13 and PW14 have clearly admitted that the deceased has not intimated or informed the said ill treatment and teasing by the accused. In the absence of any such material the conviction entered into by the trial Court, is not sustainable in law. 8. It is his further contention that all the material witnesses of the prosecution have not supported the case of the prosecution and they have been treated as hostile. Even the dying declarations Ex.P.24 and Ex.P.31 do not repose any confidence so as to attract the provision of Sec. 306 of IPC. Even in the said dying declarations nowhere she has stated about the mental condition and active act or direct act which led her to commit suicide. In the absence of any such material the judgment of conviction and order of sentence is liable to be set aside. 9. It is his further submission that the material must be brought on record to show that it is so inevitable that due to the act of the accused she has no other alternative except to commit suicide. But, in the instant case on hand, no such situation was existing. Under such circumstances the trial Court could have given the benefit of doubt and ought to have acquitted the accused. On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 10. Per contra learned Addl. SPP for the respondent-State vehemently argued and submitted that, it is not in dispute that on 29.04.2008 the accused and deceased along with other classmates had been to excursion. On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 10. Per contra learned Addl. SPP for the respondent-State vehemently argued and submitted that, it is not in dispute that on 29.04.2008 the accused and deceased along with other classmates had been to excursion. The dying declaration recorded as per Ex.P.31 clearly indicates that the accused was teasing and he has also touched her body so also threatened with life and immediately after returning from excursion on the morning on 05.05.2008 at about 2.45 a.m. she herself poured kerosene and lit fire so as to commit suicide. The said material clearly establishes that it is because of the act of the accused she has committed suicide. 11. It is his further submission that PWs 13 and 14 are the relatives of the deceased. They have stated in their evidence with regard to the act of the accused. It is his further submission that the Tahasildar-PW20 has recorded the dying declaration and nothing has been suggested to concoct the said dying declaration. In the absence of any defence made out by the accused, the case of the prosecution is to be accepted and accordingly the trial Court accepted the material and has rightly convicted the accused. 12. It is his further submission that there is material to show that the accused used to do eye-teasing and so also trying to outrage her modesty by gestures. Because of the said act, she was fed up and committed suicide. Further, it is also not in dispute that the death is a homicidal death and basing upon the dying declaration-Ex.P.31 the trial Court has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court, the same deserves to be confirmed. On these grounds, he prayed to dismiss the appeal. 13. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. I have given my thoughtful consideration to the decisions quoted by the learned counsel for the appellant and to the records produced and by securing the trial Court records. 14. The prosecution in order to establish its case got examined 22 witnesses. PWs 1 to 4 are the classmates of the deceased Asharani. I have given my thoughtful consideration to the decisions quoted by the learned counsel for the appellant and to the records produced and by securing the trial Court records. 14. The prosecution in order to establish its case got examined 22 witnesses. PWs 1 to 4 are the classmates of the deceased Asharani. Though they have spoken with regard to the accused and deceased studying in the same College. But the material aspect they have not supported the case of the prosecution and they have been treated as hostile. 15. PW5 has been treated partly hostile but he has spoken with regard to the alleged incident of deceased pouring kerosene and litting fire in the kitchen and he going over to the kitchen. He intimated the same to the Principal. During the course of cross-examination nothing has been elicited so as to substantiate the case of the prosecution. 16. PW6 is the Lecturer in the said College. He has deposed with regard to the knowing of the deceased. But he shows ignorance with reference to the accused. He has been treated as hostile and nothing has been elicited during the course of cross-examination. 17. PW7 is the Principal of the College. He speaks with regard to the excursion arrangement made from 29.04.2008 to 04.05.2008 and they came at about 9.30 p.m. He received phone call at about 2.30 AM from the security guard Asharani-deceased had tried to commit suicide by pouring kerosene and litting fire. By the time he went to the hospital she has been shifted to the hospital and he went and tried to talk with her but she was not in a position to speak and the parents came and later she has been shifted to Belgaum hospital. This witness has also been treated as hostile. 18. PWs8 and 9 are the panch witnesses to the seizure of MOs 1 to 4 as per Ex.P.14. They have also not supported the case of the prosecution. PWs10 and 11 are the inquest mahazar panchas to Ex.P.15. PW12 is the Doctor who has conducted autopsy over the body of the deceased Asharani and he has issued postmortem report as per Ex.P.16 and opinion as per Ex.P.19. Nothing has been elicited in their cross-examination. 19. PW13 is the father of the deceased. PWs10 and 11 are the inquest mahazar panchas to Ex.P.15. PW12 is the Doctor who has conducted autopsy over the body of the deceased Asharani and he has issued postmortem report as per Ex.P.16 and opinion as per Ex.P.19. Nothing has been elicited in their cross-examination. 19. PW13 is the father of the deceased. He has deposed with regard to the deceased studying in the College and staying in the ladies hostel and going for excursion. He has deposed that the Principal informed over the phone that his daughter has sustained burn injuries. Immediately he came to the hospital and there he came to know that his daughter has already been shifted to KLE Hospital, Belgaum and he went to the KLE Hospital, Belgaum wherein he tried to talk with her but she was not in a position to speak. He has further deposed that, he asked why it has happened and she told that, about 2 months back the accused used to tease her, he also threatened her and as such she has attempted to commit suicide. During the course of cross-examination he has deposed that, he used to go to the hostel once in a week and at that time the deceased has not informed about the teasing by the accused. Prior to two days she going for excursion when she had been to her house, she did not inform the same. The other aspects have been shown ignorance. 20. PW14 is the mother of the deceased. She has also reiterated the evidence of PW13 so also PW15-uncle of the deceased. He has also reiterated and admitted that the deceased has not intimated about the ill-treatment. 21. PW16 is the Police Constable who has handed over the dead body of the deceased tthe relatives. PW17 is the Police Constable who carried the seized articles to FSL for chemical examination. 22. PW18 is the ASI. He has recorded the further statement of the deceased Asharani as per Ex.P.23 by giving the certification as per Ex.P.22. He has deposed that he has given a requisition to the Tahasildar to record the dying declaration. During the course of his cross-examination nothing has been elicited so as to discard his evidence. 23. PW19 is the IO who received the statement of the deceased and registered the case and he is the person who further investigated the case and filed the charge sheet. During the course of his cross-examination nothing has been elicited so as to discard his evidence. 23. PW19 is the IO who received the statement of the deceased and registered the case and he is the person who further investigated the case and filed the charge sheet. 24. PW20 is the Tahasildar who went to the hospital and recorded the statement of the injured Asharani as per Ex.P.31 which is considered to be a dying declaration. During the course of cross-examination nothing has been elicited to discard the evidence of this witness. 25. PW21 is the Doctor who was present who certified the health condition to record Ex.P.31. PW22 is the Doctor who was present when Ex.P.23 was recorded. He has also certified for recording the said statement. 26. In order to establish the case of the prosecution, it is depending upon three aspects. It is the case of the prosecution that the deceased committed suicide because of the teasing and pressurizing her when she had been to excursion. In order to prove the case, the prosecution is relying upon the dying declaration which is said to have been recorded by PW20 as per Ex.P.31 and the same has been certified by PW21-Doctor. I am conscious of the fact that other witnesses have not supported the case of prosecution. Even then, if the dying declaration if it is proved and established, Court can convict the accused. At this juncture, I minded the say: “Men may lie but not the document”. 27. In the evidence of PW20 he has deposed that he has recorded the dying declaration of the deceased as per Ex.P.31 in the form of question and answer. He has also reiterated the case of the prosecution. Though in his deposition he has deposed that, when he asked the injured, she has answered that she is alright to give her statement. But if the evidence of PW7-the Principal of the College who has seen her first immediately. He has deposed that the security guard informed about 2.30 a.m. and asked him to come because a student-Asharani by pouring kerosene lit fire and tried to commit suicide. Immediately he went to the hospital and tried to talk with her. But, at that time she was not in a position to speak. Subsequently he informed the said fact to PW13-the father of the injured. Immediately he went to the hospital and tried to talk with her. But, at that time she was not in a position to speak. Subsequently he informed the said fact to PW13-the father of the injured. First he went to Gokak and thereafter he came to KLE Hospital, Belgaum. He has further deposed that when he tried to talk with her, she was not in a position to speak. He has further deposed surprisingly that, he asked how the incident has taken place. At that time, she disclosed that, since two months the accused is teasing. If all these material which has been produced before the Court are analyzed, the case of the prosecution that she was in a fit condition to give her statement and accordingly her statement was recorded as per Ex.P.31, itself creates a doubt. When in the first instance when she was not in a position to speak and subsequently how she recovered and her statement was recorded on 05.05.2008 at about 10.55 to 11.30 p.m. is surprising thing and it creates suspicion in the case of the prosecution. 28. Be that as it may, even on a bare perusal of Ex.P.31 she has deposed that since two months the accused was teasing and threatening her at the time of excursion and he also gave trouble and as such she was mentally disturbed. Even assuming that the said statement has been recorded but it is not corroborated with any other evidence. 29. The persons who have gone along with the deceased for excursion have been examined before the Court as PWs 1 to 4. They have not supported the case of the prosecution. It is also not elicited from them that while they were in excursion the accused used to tease her and she was depressed because of the act of the accused. Even the Lecturer and Principal who came to be examined as PWs 6 and 7 have also not stated anything in this behalf. Under such circumstances the dying declaration stating that at the time of excursion the accused teased and threatened her with dire consequences, is also a suspicion and is not going to be established the case of prosecution. 30. Be that as it may, the parents and the uncle of the deceased came to be examined as PWs 13 to 15. Under such circumstances the dying declaration stating that at the time of excursion the accused teased and threatened her with dire consequences, is also a suspicion and is not going to be established the case of prosecution. 30. Be that as it may, the parents and the uncle of the deceased came to be examined as PWs 13 to 15. Though they have deposed with regard to the said fact but during the course of cross-examination they have admitted the fact that the deceased had not informed anything about the said situation which was existing since two months. If really the accused was teasing her since two months with teasing eyes and by threatening, then under such circumstances definitely either she could have informed the same to the Principal or the Lecturer of the College or to her parents. The evidence of PW13 also discloses that he used to visit the hostel once in a week and even he has also not noticed any physical change of the deceased. If really she was teased against her will then definitely some physical change might have been expressed by the deceased. In the absence of any such material it is very difficult to accept the contention of the prosecution that the accused used to tease the deceased and because of the said situation she committed suicide. 31. Section 306 of IPC provides for punishment for abetment to commit suicide. In order to bring home the guilt of the accused u/s 306 of IPC there should be clear mens rea of the accused to show that he has abated the deceased to commit the offence of suicide. It also requires an active act or direct act, which led the deceased to commit suicide seeing no option and the act of the accused must have been intended to push the deceased into such a decision that she has to commit suicide. The said situation has also not been brought on record by the prosecution. This proposition of law has been laid down by the apex Court in the case of Wasim supra at paragraph No. 13 as under: “There should be clear mens rea to commit the offence for conviction under Section 306 IPC. The said situation has also not been brought on record by the prosecution. This proposition of law has been laid down by the apex Court in the case of Wasim supra at paragraph No. 13 as under: “There should be clear mens rea to commit the offence for conviction under Section 306 IPC. 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.” 32. As stated above, in the dying declaration or in any other records, it does not disclose any specific incident or proof about the threat being extended to the deceased or for any other reasons so as to drive her to commit suicide. To constitute abetment, presence of intention and involvement of the accused to aid or instigate the commission of the suicide, is essential. The same is lacking in the case on hand. This proposition of law has been laid in the case of Gurucharan Singh quoted supra. At paragraph No. 21 it is observed as under: “To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalizes the sustained incitement for suicide.” 33. Taking into consideration the proposition of law laid down by the Hon’ble Supreme Court, if the entire evidence and the material produced including the dying declaration it does not inspire the Court to come to the conclusion that the accused was having an intention to push the deceased to commit suicide and she was having no other option other than to go and commit suicide. 34. 34. Even on perusal of the dying declaration said to have been recorded as per Ex.P.31, it is evident that the ingredients of Sec.306 IPC are not made out because the mens rea and other aspects stated in the decisions of the Hon’ble Supreme Court in case of Wasim and in the case of Gurucharan Singh referred supra, are lacking. 35. Though the material aspects are lacking in the case, the trial Court without properly appreciating the evidence has come to a wrong conclusion and wrongly convicted the accused. In that light, the judgment of conviction and order of sentence passed by the trial Court requires to be interfered with. 36. I have carefully and cautiously gone through the judgment of the trial Court. The learned Sessions Judge has lost sight of the proposition of law and even the dying declaration which is said to have been given must be above board and it should not create any suspicion or doubt. Even then the trial Judge by relying on such material, has come to a wrong conclusion and convicted the accused. As such, it requires to be interfered with and it is an erroneous judgment so as to set aside the same. 37. In the light of the discussion entered by me above, the appeal is allowed. Consequently, the judgment of conviction and order of sentence passed by the learned 5th Addl. Sessions Judge, Belgaum in S.C. No. 12/2009 dated 06.08.2011 is set aside. Accused is acquitted of the charges leveled against him. Bail bond and surety bonds executed by the appellant-accused stand cancelled. If the accused-appellant has deposited any fine amount, the same may be refunded after the appeal period is over, on proper identification and acknowledgement.