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2021 DIGILAW 864 (KAR)

Prakash v. State Of Karnataka

2021-09-16

K.SOMASHEKAR

body2021
JUDGMENT : 1. This appeal is directed against the judgment of conviction and order of sentence rendered by the Court of Principle District and Sessions Judge, Chitradurga, dtd. 31/3/2011, whereby held conviction against accused Nos. 1 to 3 for the offences punishable under Sec. 323 read with Sec. 34 of IPC, 1860. Accused Nos.1 and 2 shall undergo simple imprisonment for a period of six months and to pay a fine of Rs.1000.00 each with default clause. Accused No.3 was sentenced to pay a fine of Rs.1000.00 in respect of offences punishable under Sec. 323 read with 34 of IPC. The same has been narrated in the operative portion of the order passed by the trial Court. Whereas under this appeal seeking to allow the appeal by setting aside the judgment of conviction and order of sentence rendered by the Trial Court. 2. The factual matrix of the case of the prosecution is as under: It is transpired in the case of the prosecution that on 9/7/2007 at around 11.00 a.m., Saraswathamma, resident of N.G.Halli Village reported first information to Holalkere Police Station alleging that 3rd accusedSunita, who is daughter of accused Nos.1 and 2, was given in marriage to one Shiva Kumar who is son of complainant, about 5 years ago. Out of their wedlock she has given birth to a male child, aged about three years. In the meanwhile in the family affairs there was some differences arose in between Shiva Kumar and his wife Ashwini who is arraigned as accused No.3 in the aforesaid case and the said accused - Ashwini @ Sunitha, hereinafter be called as 'Ashwini' for the purpose of better appreciation of the evidence which is facilitated by prosecution against the accused. That accused No.3 has reported complaint to the police and remained in her matrimonial home. But villagers advised them to hold a panchayath and resolve differences between accused No.3 - Ashwini and her husband deceased Shivakumar. But no such panchayath could be convened since accused No.1 - Prakash quarreled with the panchayathdars. Therefore, no persons came forward to hold panchayath to settle the family dispute emerged between deceased - Shiva Kumar and his wife accused No.3 - Ashwini. 3. There is allegations made against the accused inclusive of accused No.1 and 2 that there shall be some differences in the family affairs emerged in between the spouses Shivakumar and his wife Ashwini. Therefore, no persons came forward to hold panchayath to settle the family dispute emerged between deceased - Shiva Kumar and his wife accused No.3 - Ashwini. 3. There is allegations made against the accused inclusive of accused No.1 and 2 that there shall be some differences in the family affairs emerged in between the spouses Shivakumar and his wife Ashwini. But for the difference in nature between the spouses that complainant - Saraswatamma and her son namely Shiva Kumar who were very much upset and also worried about the family dispute emerged in between them and he suffered very much just to see his child. But on 8/7/2009 at around 9.00 p.m. without even taking lunch he left his house. But on the next day wherein the complainant made search about Shiva Kumar, she was found the body of her son hanging to mango tree. The complainant who made allegation against the accused persons that deceased - Shiva Kumar was very much upset due to the family differences between Ashwini and him. Due to kind of harassment in their family affairs, it lead him to hang himself to a mango tree at the scene of crime. In pursuance of the death of the deceased - Shiva Kumar hanging to mango tree, that complainant Saraswathamma who suspected about the accused persons that they were the cause for death of her son approached Holalkere Police Station to register the crime against the accused persons for causing death of her son - Shiva Kumar. Based upon the complaint report given by the informant initially the case was registered in UDR No.30/2009 and the proceedings has been taken as under the relevant provisions under Sec. 174(c) of the Code of Criminal Procedure. 4. It is further transpired in the theory of the prosecution that on 11/7/2009 at around 9.30 p.m, one K.G. Jayaprakash who is none other that brother-inlaw of deceased Shiva Kumar reported another complaint to Holalkere Police Station alleging that on 8/7/2009 deceased Shiva Kumar who left house and found committed suicide by hanging himself to mango tree in the garden land of Kantharajappa of N.G. Halli. Deceased Shiva Kumar had married accused No.3 namely Ashwini about 4 years back. Subsequent to her marriage she gave birth to a male child. During the relevant period and there was some dispute emerged in between the accused No.3 and her husband. Deceased Shiva Kumar had married accused No.3 namely Ashwini about 4 years back. Subsequent to her marriage she gave birth to a male child. During the relevant period and there was some dispute emerged in between the accused No.3 and her husband. Due to some bickering in between them some cases were also reported both against each other as a result of which all the accused used to ill-treat him and they have been spitting over him whenever they found him walking on the road. Thus, he was very much upset and disgusted in life. These are all the facts which caused for death of deceased-Shiva Kumar who alleged to have committed suicide by hanging to a mango tree of one Kantharajappa. 5. That on 8/7/2009 at around 9.15 p.m. deceased was had been to his in-laws' house and requested them to show the face of his male child. But the accused refused to show the face of the male child to the deceased-Shiva Kumar who is father of the said child. Accused No.3-Ashwini who is none other than wife of deceased-Shiva Kumar, she broke her bangles as an indication that her husband deceased-Shiva Kumar is dead in her matrimonial life and accused also abetted him, stating that instead of living like a shameless guy, better he must die somewhere. Being unable to bear with these piercing words whereby deceased-Shiva Kumar committed suicide by hanging himself to mango tree in the garden land of Kantharajappa. In pursuance of the act of the accused towards the deceased-Shiva Kumar as narrated in the complaint filed by one Jayaprakash who is none other than brother-in-law of deceased-Shiva Kumar and based upon his complaint case in Crime No.305/2009 came to be registered for the offences punishable under Sec. 306 read with Sec. 34 of IPC against the accused Nos.1 to 3. Accused No.1 and 2 are the parents and in-laws and accused No.3-Ashwini is the wife of deceased-Shiva Kumar. 6. Subsequently, the criminal law was set into motion by registering the case in Crime No.305/2009 and case has been taken up by the investigating agency and thoroughly investigation has been done and charge sheet was laid against the accused Nos.1 to 3 in C.C.No.888/2009 before the Committal Court. 6. Subsequently, the criminal law was set into motion by registering the case in Crime No.305/2009 and case has been taken up by the investigating agency and thoroughly investigation has been done and charge sheet was laid against the accused Nos.1 to 3 in C.C.No.888/2009 before the Committal Court. Subsequently, the committal court has passed an order under Sec. 209 of Cr.P.C to commit the case to the Sessions Court for trial for the offences punishable under Ss. 306 read with Sec. 34 of IPC. Subsequent to committing the case to the court of Sessions that the case in S.C No.65/2010 has been registered and whereby accused persons were secured and charges were framed against them for the offences punishable under Sec. 306 read with Sec. 34 of IPC. But the accused did not pleaded guilty and claims to be tried. 7. Subsequently, the prosecution let in the evidence of PWs.1 to PW.15 and got marked Exs.P1 to P11 and so also M.O.1 and 2 and relevant portion has been got marked as M1(a). Subsequently, incriminating statements as contemplated under Sec. 313 of Cr.P.C was recorded but the accused have been declined the truth of the evidence of the prosecution adduced so far. Subsequently, the accused did not come forward to adduce the defence evidence as contemplated under Sec. 233 of Cr.P.C. Subsequently the trial Court heard the arguments advanced by the Public Prosecutor and so also, the defense counsel for the accused and on appreciation of the evidence of PW.5, PW.7, PW.8 and PW.10. But they are the relatives of the deceased-Shiva Kumar and more so they are mother, sister and relative of the said deceased-Shiva Kumar and held that they have consistently given evidence and also supporting the case of the prosecution that the accused have been extended some sort of cruelty towards deceased - Shiva Kumar and led him to commit suicide by hanging to mango tree as where the dead body was found in the position of hanging. Based upon the evidence of these material witnesses that the trial court had arrived at conclusion that the prosecution has proved the guilt of the accused with beyond reasonable doubt insofar as offences under sec. 323 r/w 34 of IPC, but charge has been framed against the accused under Sec. 306 of IPC and whereby deceased-Shiva Kumar has committed suicide by hanging to mango tree. 323 r/w 34 of IPC, but charge has been framed against the accused under Sec. 306 of IPC and whereby deceased-Shiva Kumar has committed suicide by hanging to mango tree. In support of that evidence the Trial Court relied upon the evidence of PW.9 and whereby M.O.1- Currency note of Rs.20.00 denomination found near the chest part of the deceased and on the said M.O it was written that his wife-Ashwini and his inlaws are the cause for his death. Further the trial Court banking upon the evidence of the PW.11 being the Doctor who conducted autopsy over the dead body and issued post mortem report as per Ex.P.7 stating that the cause of death is due to asphyxia as a result of hanging. In addition to supporting of the aforesaid witnesses on part of the prosecution relied upon the evidence of PW.14 and 15. But PW.14 and 15 are the independent witnesses even though they are projected as circumstantial witnesses, but they have been treated as hostile. Though they admit that the deceased was the husband of accused No.3 but they does not know the cause of his death. But it is important to note that none of these independent witnesses have whispered as to the probable defence theory that the deceased committed suicide, because his mother-PW.8, PW.7 - brother-in-law abused him for having sold the family properties being addicted to alcohol and gambling. On appreciation of the evidence of all the witnesses the Trial Court had come to the conclusion that the accused persons are the cause for the death of the deceased who committed suicide by hanging to a mango tree and mainly that the accused had refused him to show his male child and also caused some mental cruelty to him which led him to commit suicide. But Ex.P5 is the suicide note wherein it is narrated by the deceased-Shiva Kumar relating to the cruelty meted out from his wife being arraigned as Accused No.3 and his in-laws who are arraigned as accused Nos. 1 and 2. These are all the evidence that has been put forth by the prosecution to prove the guilt of the accused and that mere credentiality has been given to the evidence to arrive at a conclusion held that prosecution has proved the guilt of the accused for the offence punishable under Ss. 323 read with Sec. 34 IPC. 1 and 2. These are all the evidence that has been put forth by the prosecution to prove the guilt of the accused and that mere credentiality has been given to the evidence to arrive at a conclusion held that prosecution has proved the guilt of the accused for the offence punishable under Ss. 323 read with Sec. 34 IPC. But the prosecution did not establish the guilt of the accused for the offences punishable under Sec. 306 of IPC though the charge has been framed against the accused based upon the materials which were collected by the investigating officers during the course of investigation such as inquest mahazar held by the concerned investigating agency/competent authority and so also held in the presence of panch witnesses and so also post mortem report at Ex.P7. But where as under this appeal challenging the judgment of conviction and order of sentence which requires for re-appreciating the observations made by the Trial Court for arrival of conclusion and so also re-appreciating the evidence as where the Trial Court as misread the evidence and so also documents got marked as Ex.P.1 to Ex.P.11. Therefore this appeal is filed seeking to set-aside the impugned judgment of conviction and sentence held against the accused by urging various grounds. 8. Whereas the learned counsel for appellants who has taken me through the judgment of conviction and order of sentence rendered by the Trial Court by rendering the evidence of PW.1 and 2 who were the panch witnesses who were secured by investigating agency to conduct spot mahazar as per Ex.P1 but they did not support the case of the prosecution to any extent in respect of fulcrum of the mahazar. PWs.3 and 4 were also subjected to examination on the parts of the prosecution in respect of Ex.P2 - inquest mahazar held over the dead body of deceased-Shiva Kumar but they did not support the case of the prosecution relating to the fulcrum of the said mahazar. But PWs.14 and 15 they have been termed as independent witnesses and they have been examined as speak about the circumstances but they did not supported the case of the prosecution and they have given go by to the version of their statement. But PWs.14 and 15 they have been termed as independent witnesses and they have been examined as speak about the circumstances but they did not supported the case of the prosecution and they have given go by to the version of their statement. But the evidence of these witnesses has not been properly considered by the Trial Court to hold conviction against the accused persons that the prosecution has proved the case with beyond reasonable doubt. Therefore, in this appeal it requires for re-appreciation of the evidence, if not, the accused who is the gravamen of accusation would be the sufferer and there shall be certainly a miscarriage of justice as where there are some inconsistencies and contradictions arising in the evidence of the prosecution to prove the guilt of the accused. 9. The second limb of the argument advanced by the counsel for the appellants is that approach made by the Trial Court by giving the credentiality to the evidence of PW.5, PW.7, PW.8 and PW.10 but they are the relatives of the deceased-Shiva Kumar and that too be the mother, sister and relative and they are close persons and more so they are the interested and partisan witnesses and their evidence has been relied upon by the Trial Court for arrival of the conclusion and held that the prosecution has proved the guilt of the accused and erroneously came to the conclusion by referring to the provision under Sec. 498A of IPC relating to the physical as well as mental harassment alleged to have been meted out by the deceased from his wife and in-laws. But absolutely no cogent and as well as reliable positive evidence has been put forth by the prosecution to prove the guilt of the accused with beyond all reasonable doubt. But at a cursory glance of the evidence it found that there are infirmities and those infirmities are found to be clouds of doubt. When once the doubt has been arise in the mind of the court and that benefit of the doubt is always accrued on the part of accused only. But at a cursory glance of the evidence it found that there are infirmities and those infirmities are found to be clouds of doubt. When once the doubt has been arise in the mind of the court and that benefit of the doubt is always accrued on the part of accused only. In the instant case, charge has been framed under Sec. 306 read with Sec. 34 of IPC and arrived at a conclusion for the offences punishable under Sec. 323 read with Sec. 34 of IPC that accused alleged to have caused mental harassment to the deceased and lead him to commit suicide by hanging which is opposed to the settled principles of law and also found judgment of conviction and order of sentence as a perverse and it requires for re-appreciation of evidence in this appeal, if not, re-appreciating the evidence by referring to the evidence of witnesses and also got marked the documents namely Exs.P.5 and Ex.P.7, certainly miscarriage of justice would be caused and the accused would be the sufferers of the sentence that has been held by the trial Court. On all these premises, the learned counsel for the appellants seeking for allowing the appeal and consequently set aside the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.65/2010. 10. In support of his contention, the counsel has placed reliance of Hon'ble Supreme Court of India reported in (2001) 10 SCC Page No.736 - Indrapal Vs. State of Madhya Pradesh. Wherein it is held that "unless the statement of a dead person would fall within the purview of Sec. 32(1) of the Indian Evidence Act there is no other provision under which the same came be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in case in which the cause of death comes into question. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in case in which the cause of death comes into question. By no stretch of imagination can the statements of the deceased contained in the letters, where reference had been made by her regarding her life in the house of her in-laws, and the statements quoted by the witnesses, who had not spoken of anything which they had seen directly, be connected with any circumstances of the transaction which resulted in her death. Even that apart, the matter herein is concerned with an offence under Sec. 498-A IPC disjuncted from the offence under Sec. 306 IPC the question of her death is not an issue for consideration and on that premise also Sec. 32(1) of the Evidence Act will stand at bay so far as these materials are concerned." 11. In the instant case, the deceased Shivakumar committed suicide by hanging to mango tree of one Kantharajappa. But allegation made against the accused are that they have given some sort of harassment to him by not showing his male child even his wife accused No.3 - Ashwini. But there are specific materials against accused that they are causing for death of the deceased and led him to commit suicide by hanging to mango tree. There is no single piece of evidence which can be admitted in law used against appellants/accused. But the trial Court has held conviction against the accused for the offences punishable under Sec. 323 r/w 34 of IPC. But charge has framed against them under Sec. 306 r/w of 34 IPC. Therefore, in this appeal it requires for reappreciation of the evidence and also consideration of the grounds which urged in this appeal seeking intervention and if not considered, the accused would be sufferers and therefore, seeking for allowing the appeal and consequently, setting aside the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.65/2010. 12. Learned HCGP while countering to the arguments advanced by the learned counsel for the appellants by referring to the aforesaid witnesses contends that they are the important witnesses on the part of the prosecution and more so PWs. 12. Learned HCGP while countering to the arguments advanced by the learned counsel for the appellants by referring to the aforesaid witnesses contends that they are the important witnesses on the part of the prosecution and more so PWs. 7, 8 , 5 and 10 being the relative, mother and sisters of the deceased and they have stated consistently on the part of the prosecution and also supporting the case of the prosecution relating to the accused have been extending some sort of cruelty as a result of which he committed suicide by hanging to a mango tree of one Kantharajappa. The trial Court has considered the evidence of those witnesses inclusive of evidence of PW.9 who is an independent witnesses relating to M.O.1 - currency note of Rs.20.00 denomination and whereby some writing made on the face of the currency note that accused are causing for his death. PW.11 being the Doctor who conducted autopsy over the dead body of the deceased Shivakumar and issued post mortem report at Ex.P7 stating that cause of death was due to asphyxia as a result of hanging. But PW.12 and 13 being the investigating officers they have investigated the case thoroughly by conducting the spot mahazar at Ex.P1 and so also, inquest mahazar at Ex.P2 and collected the material objects which marked as M.O.1 - Rs.20.00 currency note denomination and M.O.1(a) relevant portion of some writings and M.O.2 - rope alleged to be used by the deceased for committing suicide. These are all the material evidence on the part of the prosecution that has been appreciated by the trial Court and the trial Court has rightly come to the conclusion and given conviction against the accused even based upon the documents at Ex.P5 - the statement of the deceased himself which has to be considered under Sec. 32 of the Indian Evidence Act. The trial Court has looked into the scope of : i) Sec. 306 of IPC relating to Abetment of suicide which reads thus: "306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." ii) Sec.107 of IPC relating to Abetment of a thing which reads thus: "107. Abetment of a thing. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." ii) Sec.107 of IPC relating to Abetment of a thing which reads thus: "107. Abetment of a thing. -A person abets the doing of a thing, who – First - ... Secondly -... Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. -... Explanation 2. -Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act". iii) Sec. 108 of IPC which reads thus: "108. 'Abettor' under this sec. means the person who abets: (1) the commission of an offence, or (2) the commission of an act which would be an offence if committed by a person not suffering from any physical or mental incapacity" Further, the trial Court has referred to P.Ramanatha Aiyar's - The Law Lexicon, The encyclopedic law dictionary, relating to the word 'Hurt' as defined by Blackstone is 'a nuisance as being anything to the hurt or annoyance of another. By 'hurt or annoyance' here is meant, not a physical injury necessarily....' These are all the evidence that has been considered by the trial Court and the evidence on record which facilitated by the prosecution has been clearly established that all the accused Nos.1 to 3 have caused for death of deceased - Shiva Kumar by extending cruelty to him and made the deceased to commit suicide by hanging to Mango tree. The accused have been abusing the deceased and also alleged to have assaulting him which is to be termed as torture and accused Nos.1 and 2 who are the parents of Accused No.3 - Ashwini who is none other than the wife of deceased Shiva Kumar were humiliating him which is untolerable things and consequently, the deceased Shiva Kumar committed suicide by hanging. But the trial Court held that prosecution did not establish the guilt of the accused beyond all reasonable doubt for the offence under Sec. 306 of IPC, but found guilt for the offence under Sec. 323 read with Sec. 34 of IPC. But the trial Court held that prosecution did not establish the guilt of the accused beyond all reasonable doubt for the offence under Sec. 306 of IPC, but found guilt for the offence under Sec. 323 read with Sec. 34 of IPC. In this regard it is relevant to refer Ss. 323 and 334 of I.P.C. which reads as under : i) 323. Punishment for voluntarily causing hurt. -Whoever, except in the case provided for by sec. 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. ii) 334.Voluntarily causing hurt on provocation. -Whoever voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. However, conviction has been held by the trial Court against Accused Nos.1 to 3. Therefore, under this appeal it does not arise for intervention of the judgment of conviction and order of sentence rendered by the trial Court in terms of re-appreciation of the evidence and so also commanding the material evidence as well as oral and documentary evidence adduced by the prosecution to prove the guilt of the accused. There are no infirmities found in the observation made by the trial Court by rendering the judgment of conviction and order of sentence and consequently, the appeal deserves to be dismissed being devoid of merits. 13. It is in this context of the contention made by the learned counsel for the appellants by referring to the evidence of PWs.5, 7, 8 and 10 who are the witnesses on the part of the prosecution and more so, they are relatives of the deceased - Shiva Kumar that too be the mother, sister and relative. But Ex.P1 is the seizure mahazar, Ex.P2 is the inquest mahazar. PWs.1 and 2 have not withstood the fulcrum of the aforesaid mahazar conducted by the IO in the presence of the panch witnesses. Ex.P2 is the inquest mahazar which has been drawn by the IO in the presence of PWs.3 and 4. But Ex.P1 is the seizure mahazar, Ex.P2 is the inquest mahazar. PWs.1 and 2 have not withstood the fulcrum of the aforesaid mahazar conducted by the IO in the presence of the panch witnesses. Ex.P2 is the inquest mahazar which has been drawn by the IO in the presence of PWs.3 and 4. But these witnesses have also not withstood the fulcrum of the mahazar held by the IO. However, deceased - Shiva Kumar committed suicide by hanging to a mango tree in the land of one Kantharajappa, but the said Kantharajappa was not subjected to examine by the prosecution to prove the guilt of the accused by establishing that in his garden land deceased - Shiva Kumar committed the suicide by hanging to mango tree. 14. Ex.P6 is the UDR report and this proceeding has been held as contemplated under Sec. 174(c) of Cr.P.C. But this UDR has been held in pursuance of the information report by the informant relating to the death of deceased. Accordingly, initially the case in UDR No.30/2019 has been registered by Holalkere Police Station and completed the proceedings as contemplated under Sec. 174(c) of Cr.P.C. But one Jayaprakash who is none other than the relative of deceased of Shiva Kumar gave the complaint report on 11/7/2009 at around 9.30 p.m. by narrating that there shall be some family difference emerged in between accused No.3 - Ashwini who is no other than wife of deceased - Shiva Kumar. They were not allowing the deceased to see his male child even by accused No.3 - Ashwini who is no other than wife and inclusive of his in-laws who are arraigned as accused Nos.1 and 2. But the allegation made against the accused that they have been extending some sort of harassment to him and that kind of cruelty led to commitment of suicide by hanging to a mango tree of one Kantharajappa in N.G.Halli village, Holalkere Taluk. 15. The IO has laid the charge sheet against the accused under Sec. 306 r/w 34 of IPC, 1860 and accordingly, the charge has been framed based upon the materials which were facilitated by the prosecution by compliance of the mandatory provision as under Sec. 173(2) of Cr.P.C. But the trial Court had arrived at a conclusion that the prosecution had established the guilt of the accused for the offence punishable under Sec. 323 IPC, 1860. In this appeal it is required for benefit of intendment of Sec. 323 of IPC for voluntarily causing hurt. If hurt actually caused is simple, a person cannot be held guilt of voluntarily causing grievous hurt, even if it was in his contemplation. This is the essential ingredients of the offence. But Sec. 323 of IPC states that even for voluntarily causing hurt whoever except in the case provided for by Sec. 334 of IPC. But Sec. 334 of IPC is voluntarily causing hurt on provocation, whoever voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation. But Sec. 323 and 334 of IPC are relatable in terms. But Sec. 334 which is voluntarily causing hurt on provocation but to what extent provocating the activities done by the person being arraigned as accused and that provocative activities must be established by the prosecution by facilitating the worthwhile evidence and then it would be relatability to Sec. 323 of IPC for voluntarily causing hurt. But as per Sec. 321 of IPC, whoever does an act with an intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt." But Ss. 321, 323 and 334 of IPC shall be read together and then only to see the intendment of what is voluntarily causing hurt relating to punishment of offence under Sec. 323 of IPC. 16. Whereas the IO has laid the charge sheet against the accused persons for the offence punishable under Sec. 306 of IPC which states that if any person commits suicide, whoever abates commission of suicide. The basic constituents of an offence under Sec. 306 of IPC are suicidal death and abetment thereof. To attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary. These are all the main ingredients to constitute offence under Sec. 306 of IPC. The basic constituents of an offence under Sec. 306 of IPC are suicidal death and abetment thereof. To attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary. These are all the main ingredients to constitute offence under Sec. 306 of IPC. It is also relevant to refer the motive behind committing suicide by deceased - Shiva Kumar who is no other than the husband of Accused No.3 - Ashwini that the intention and also positive act to instigating the deceased to committed the suicide are the main ingredients to constitute the offence under Sec. 306 of IPC. But the same was not established by the prosecution by facilitating the worthwhile evidence. But at a cursory glance of the entire material evidence on the part of the prosecution, one can infer that there was neither any intention nor any positive act on the part of the accused to instigate him or even aid him in committing suicide. But accused Nos.1 and 2 are the parents in-laws of deceased Shiva Kumar and accused No.3 who is the wife of deceased - Shiva Kumar. But the trial Court had come to the conclusion that the prosecution was not able to prove the guilt of the accused for the offence under Sec. 306 of IPC and consequently ended in acquittal. But conviction has been given insofar as accused Nos.1 to 3 being the appellants before this Court for the offence punishable under Sec. 323 r/w 34 of IPC. 17. But in case of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide and there is dependable evidence to hold that the victim was tortured at least mentally if not physically. But in the instant case, the deceased namely - Shiva Kumar is no other than the husband of accused No.3 - Ashwini and she was blessed with a male child. But he committed suicide by hanging to a mango tree. 18. The word "Suicide" derived from latin term "sui" means self and "caedere" the act of slaying. But it describes suicide that means to say death caused by injuring one self with an intention to die. But he committed suicide by hanging to a mango tree. 18. The word "Suicide" derived from latin term "sui" means self and "caedere" the act of slaying. But it describes suicide that means to say death caused by injuring one self with an intention to die. But in the instant case, the deceased -Shiva Kumar who committed suicide by hanging to a mango tree in the garden land of one Kantharajappa situated in the limits of N.G. Halli, Holalkere Taluk. Even the word "Suicide" from Latin suicidium, is "the act of taking one's own life". But in the instant case, deceased - Shiva Kumar who committed the act of self-suicide by hanging to the mango tree. But the trial Court has come to the conclusion that the prosecution has proved the guilt of the accused for the offence punishable under Sec. 323 r/w 34 of IPC which is called for under this appeal by re-appreciating the evidence on record as where the trial Court was misdirected the evidence facilitated by the prosecution and also got marked several documents. If the evidence is not re-appreciated under this appeal, certainly the accused would be the sufferers and they are termed as gravamen of accusation and not only sufferers, but there shall be miscarriage of justice. 19. In the instant case, deceased - Shiva Kumar committed suicide by hanging to mango tree and M.O.1 - denomination of Rs.20.00 currency note found nearby the chest part of his body and also found some writings on the currency note which is marked as M.O.1(a). But the writing made on the currency note is that accused are causing for the death of the deceased. There is no specific report from the concerned chemical examiner whether it is his hand writing made on M.O.1 - Currency note of the relevant portion of M.O.1(a) even indicating the name of the accused persons. But Accused No.3 - Ashwini is none other than wife of deceased Shiva Kumar. But the family affairs were found to be not conducive, but she gave birth to a male child aged about 3 years. But Accused No.3 - Ashwini is none other than wife of deceased Shiva Kumar. But the family affairs were found to be not conducive, but she gave birth to a male child aged about 3 years. The incident took place on 9/7/2009 at around 11.a.m. that one Saraswatamma who is none other than the mother of deceased - Shiva Kumar reported complaint and based upon the complaint report initially the case in UDR No.30/2009 came to be registered and then proceedings have been completed as under Sec. 174(C) of Cr.P.C. Even the ingredients of Sec. 306 of IPC there shall be some relatable to Sec. 109 of IPC, 1860 which states that - “Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. But Sec. 107 of IPC of abetment in Chapter - V (i) instigates any person to do that thing. (ii) Engages with one or more other person or persons in any conspiracy for 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 (iii) intentionally aids, by any act or illegal omission, the doing of that thing. There shall some explanation and in that explanation a person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. But abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has been abetted.” 20. Keeping in view the specific scope of the said provision of law that abetment made by instigation, conspiracy or intentional aid as provided under Sec. 107 of IPC. But Sec. 107 of IPC relating to abetment of a thing it would closely to the provision of Sec. 306 of IPC and whereby the person being committed suicide, even if it was by causing abetment, commitment of suicide that ingredients would be established by the prosecution by facilitating the worthwhile evidence to prove the guilt of the accused. If not, it cannot be possible for arrival of a conclusion that prosecution has proved the guilt of the accused. 21. If not, it cannot be possible for arrival of a conclusion that prosecution has proved the guilt of the accused. 21. No prudent man can disturb his mind that there is some sort of specific role either provocation or abetment intentionally or even any conspiratorial led that person to commitment of suicide. But in the instant case accused No.3 - Ashwini who is no other than the wife of deceased - Shiva Kumar but accused Nos.1 and 2 are the in-laws of the deceased. But the deceased being father of male child given birth to that child by accused No.3 - Ashwini. But the deceased Shiva Kumar said to in activity for some sort of undoing of a person in a family consisting his mother and where the property has been sold by him by indulgence with some bad voices such as playing cards and also some financial crunches and due to that reason there shall be some unconducive atmosphere in the family of his house also. But the circumstances that it would be some inhuman attitude and also to be cruel attitude coupled with their acts causing to the deceased for commitment of suicide, it cannot be acceptable. But Ex.P5 is an earlier document of notes that Shiva Kumar were to be sensitive person in case he would be self killing in terms of commitment of suicide. But there is no specific mensrea to abetment or abetting the deceased Shiva Kumar to commitment of suicide by hanging to mango tree. But the ingredients of Sec. 107 r/w 108 of IPC and even Sec. 306 of IPC, it does not find place in the evidence of the aforesaid witnesses but held that they are the abettors though they are cause for the death of the deceased. This observation was also made by the trial Court in the impugned judgment of conviction. But the circumstances and that too be the specific circumstances it would be established by the prosecution by facilitating the worthwhile evidence relating to causing cruelty to him and lead him to death. But there is lack of evidence to hold that these accused had intention to abetting the deceased to commit suicide by hanging to the mango tree as narrated in the complaint as well as chargesheet materials. But there is lack of evidence to hold that these accused had intention to abetting the deceased to commit suicide by hanging to the mango tree as narrated in the complaint as well as chargesheet materials. But the trial Court has misread the evidence of PWs.5, 7, 8 and 10 inclusive of M.O.1 - Rs.20.00 currency notes and M.O.1(a) some writing made by the deceased on the currency note and so also Ex.P5. But the prosecution did not establish the guilt of the accused beyond reasonable doubt that the accused are causing for the death of deceased to commit suicide. Mere because there is evidence of PWs.5, 7, 8 and 10 but unless supported by the independent witnesses on the part of the prosecution that credentiality should not be given to other witnesses as they are interested and partisan witnesses. Therefore, the circumstances which resulted in the death of Shiva Kumar would be looking into specific evidence to be facilitated by the prosecution. But at no stretch of imagination can be given writings made on M.O.1(a) of the currency note which was found near the chest part of deceased - Shivakumar where reference has been made by him relating to his life and also causing for the death. But the statement quoted on M.O.1 - Rs.20.00 currency note and the relevant portion marked at M.O.1(a) who had not spoken specifically of anything which they had seen directly to connect with any circumstances of the contact has resulted in his death and even that Accused No.3 - Ashwini given some sort of cruelty and so also accused Nos.1 and 2 who are the in-laws of deceased - Shiva Kumar. Even that apart the matter herein is connected with the offence under Sec. 306 of IPC and as accordingly the IO has investigated the case and laid the charge sheet against the accused persons. But the trial Court has arrived at a conclusion by giving credentiality to the aforesaid witnesses which is distinctive from the offence under Sec. 306 of IPC. But the question of deceased Shiva Kumar is not an issue for consideration and on that premise also Sec. 32(1) of the Indian Evidence Act, 1872 will stand at bay so far as these materials are concerned. But the question of deceased Shiva Kumar is not an issue for consideration and on that premise also Sec. 32(1) of the Indian Evidence Act, 1872 will stand at bay so far as these materials are concerned. The Doctrine of criminal justice delivery system that the prosecution should facilitate the worthwhile evidence in terms of positive, consistent and acceptable evidence to probabalise that the accused have committed the offence and they are cause for the death of deceased. But in the instant case, the prosecution did not facilitate the evidence with beyond all reasonable doubt that they are the cause for death of deceased - Shiva Kumar and led him to commitment of suicide by hanging to the mango tree. Therefore, in this appeal it requires for re-appreciation of the evidence and so also, documents which marked on the part of the prosecution which is stated above, if not, certainly there shall be miscarriage of justice and ultimately the accused who are the gravamen of the accusation would be the sufferers. Consequently, the appeal deserves to be allowed. Accordingly, I proceed to pass the following: ORDER 1. The appeal preferred by the appellants/accused under Sec. 374(2) of Cr.P.C. is hereby allowed. Consequently, the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.65/2010 dtd. 31/3/2011 is hereby set-aside. Consequent upon setting aside the judgment of conviction and order of sentence that Accused Nos.1 to 3 are hereby acquitted for the offence punishable under Sec. 323 read with 34 of IPC, 1860. The bail bonds, if any, executed by the accused shall stands cancelled.