KASHIBAI & ORS. versus THE STATE OF KARNATAKA on 28 February 2023

1. Leave granted.

2. The judgment and order dated 06.03.2021 passed by the HighCourt of Karnataka, Kalaburagi Bench in Criminal Appeal No.200027/2014 is underchallenged before this Court, whereby the High Court hasEdismissed the said appeal filed by the appellants-accused against thejudgment and order dated 11.02.2014 passed by the II Additional SessionsJudge, Bijapur (hereinafter referred to as “the Sessions Court”) inSessions Case No.5/2011. The Sessions Court vide the said judgmentand order had convicted and sentenced the present appellanti.e., theFaccused nos. 1, 2 and 3 for the offences under Section 498A and Section306 read with Section 34 of IPC, and acquitted the accused no.4 SantoshJangamshetti, son of Kallappa Jangamshetti, who happened to be thebrother-in-law of the deceased Jayashree, from the said charges.

3. The deceased Jayashree had married the appellant no.3,GChandrashekhar about three years prior to the alleged incident. Theappellant nos.1 and 2 happened to be the mother-in-law and father-in-law of the said deceased respectively. Smt. Annapurna, wife of SadashivLimbikai, mother of the deceased lodged a complaint before theBableshwar Police Station alleging inter alia that her daughter Jayashreewas given in marriage to accused no.3, Chandrashekhar. After theHmarriage, her parents-in-law,brother-in-law and her husband ill-treated

Jayashree both physically and mentally on account of demand of dowry.Her daughter Jayashree because of such harassment committed suicideon 07.02.2010 at about 11:00 am by jumping into an open well situated ina land bearing Survey Number 53/4 at the TiganiBidari village. The saidcomplaint came to be registered against the accused for the offencesunder Section 498A and 306 read with Section 304 of IPC. The SessionsCourt conducted the trial and after appreciating the evidence on record,convicted the appellants for the said offences and sentenced them toundergo simple imprisonment for a period of two years and to pay a fineof Rs. 2,000/- each for the offences under Section 498A read with Section34 of IPC, and to undergo simple imprisonment for a period of five yearsand to pay a fine of Rs.5,000/- each for the offences under Section 306read with Section 34 of IPC. The High Court confirmed the saidconviction and sentence as per the impugned order.

4. After having heard the learned counsels for the parties andthoroughly gone through the record of the case, it appears that theprosecution to bring home the charges levelled against the appellants-accusedhad examined 21 witnesses and also adduced the documentaryevidence.However out of the 21 witnesses, PW-10, PW-11, PW-12 andPW-14 had turned hostile and not supported the case of the prosecution.The case of the prosecution as such mainly depended upon the PW-1and PW-4 who happened to be the parents of the deceased and PW-6who happened to be the uncle of the deceased.They all had deposedinteralia about the demand of the dowry in the form of cash and gold,andabout the harassment meted out by them to the deceased mentally andphysically. PW-5 who happened to be the person known to both thesides and who was instrumental in arranging the marriage between thedeceased and the appellant no. 3 also had deposed that there was ademand for additional gold and cash made by the appellants-accusedand that there was harassment caused by the appellants to the deceasedJayashree.The neighbours, PW-7 and PW-9 also had supported the caseof the prosecution by deposing inter alia that the deceased was subjectedto mental and physical harassment by the appellants-accused.

5. Having regard to the said evidence, which has been alsoappreciated by the Sessions Court and High Court, there remains noshadow of doubt that the deceased was subjected to the harassment atthe instance of the appellants-accused and that the prosecution hadsuccessfully brought home the charges levelled against them so far as A

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Athe offenceunder Section 498A read with Section 34 of IPC wasconcerned. However, the next question that falls for consideration beforethis Court is whether the prosecution had proved beyond reasonabledoubt the charge levelled against the appellant with regard to the offencepunishable under Section 306 read with Section 34 of IPC.

B6. At this juncture, it would be beneficial to reproduce the relevantprovision contained in Section 306 IPC pertaining to Abetment of suicide.

“306. Abetment of suicide.- If any person commits suicide,whoever abets the commission of such suicide, shall be punishablewith imprisonment of either description for a term which mayCextend to ten years, and shall also be liable to fine.”

7. What is “Abetment of a thing” has been described in Section107 which reads as under: - “107. A person abets the doing of a thing, who—

DFirst. —Instigates any person to do that thing; or Secondly. —Engages with one or more other person or personsin any conspiracy for the doing of that thing, if an act or illegalomission takes place in pursuance of that conspiracy, and in orderto the doing of that thing; or EThirdly. —Intentionally aids, by any act or illegal omission, thedoing of that thing.

Explanation 1. —A person who, by willful misrepresentation, orby willful concealment of a material fact which he is bound todisclose, voluntarily causes or procures, or attempts to cause orFprocure, a thing to be done, is said to instigate the doing of thatthing.”

8. From the bare reading of the said provisions, it clearly transpiresthat in order to convict a person for the offences under Section 306 IPC,the basic constituents of the offence namely where the death was suicidalGand whether there was an abetment on the part of the accused ascontemplated in Section 107 IPC have to be established.

9. In M. Mohan Vs. State Represented by the DeputySuperintendent of Police[1], this Court has elaborately dealt with the 1 (2011) 3 SCC 626H

provisions contained in Section 306 read with Section 107 IPC, and afterdiscussing various earlier decisions has observed as under: - “41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9SCC 618 : 2002 SCC (Cri) 1088] has examined different shadesof the meaning of “instigation”. Para 20 reads as under : (SCC p.629)

“20. Instigation is to goad, urge forward, provoke, incite orencourage to do ‘an act’. To satisfy the requirement ofinstigation though it is not necessary that actual words must beused to that effect or what constitutes instigation mustnecessarily and specifically be suggestive of the consequence.Yet a reasonable certainty to incite the consequence must becapable of being spelt out. The present one is not a case wherethe accused had by his acts or omission or by a continuedcourse of conduct created such circumstances that thedeceased was left with no other option except to commit suicidein which case an instigation may have been inferred. A worduttered in the fit of anger or emotion without intending theconsequences to actually follow cannot be said to beinstigation.”

In the said case this Court came to the conclusion that there isno evidence and material available on record wherefrom aninference of the appellant-accused having abetted commissionof suicide by Seema (the appellant’s wife therein) maynecessarily be drawn.

42. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994SCC (Cri) 107] this Court has cautioned that (SCC p. 90, para17) the Court should be extremely careful in assessing the factsand circumstances of each case and the evidence adduced in thetrial for the purpose of finding whether the cruelty meted out tothe victim had in fact induced her to end her life by committingsuicide. If it appears to the Court that a victim committing suicidewas hypersensitive to ordinary petulance, discord and differencein domestic life, quite common to the society, to which the victimbelonged and such petulance, discord and difference were notexpected to induce a similarly circumstanced individual in a givensociety to commit suicide, the conscience of the Court should not A

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be satisfied for basing a finding that the accused charged of abettingthe offence of suicide should be found guilty.

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43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCTof Delhi) [(2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] had anoccasion to deal with this aspect of abetment. The Court dealtBwith the dictionary meaning of the word “instigation” and“goading”. The Court opined that there should be intention toprovoke, incite or encourage the doing of an act by the latter.Each person’s suicidability pattern is different from the others.Each person has his own idea of self-esteem and self-respect.Therefore, it is impossible to lay down any straitjacket formula inCdealing with such cases. Each case has to be decided on the basisof its own facts and circumstances.

44. Abetment involves a mental process of instigating a personor intentionally aiding a person in doing of a thing. Without a positiveact on the part of the accused to instigate or aid in committingDsuicide, conviction cannot be sustained.

45. The intention of the legislature and the ratio of the casesdecided by this Court are clear that in order to convict a personunder Section 306 IPC there has to be a clear mens rea to committhe offence. It also requires an active act or direct act which ledEthe deceased to commit suicide seeing no option and this act musthave been intended to push the deceased into such a position thathe/she committed suicide.”

10. In view of the above, it is quite clear that in order to bring thecase within the purview of ‘Abetment’ under Section 107 IPC, thereFhas to be an evidence with regard to the instigation, conspiracy orintentional aid on the part of the accused. For the purpose proving thecharge under Section 306 IPC, also there has to be an evidence withregard to the positive act on the part of the accused to instigate or aid todrive a person to commit suicide.

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G11. So far as facts of the present case are concerned, theprosecution had sought to lead the evidence by examining the witnessesto prove that the deceased had committed suicide because of the mentaland physical harassment of the appellants-accused.The PW-21 Dr.Jayashree Masali, who had carried out the post-mortem of the deceased,had narrated in her deposition the injuries found on the body of theH

deceased as mentioned in the post-mortem report (Exhibit-14). As perher final opinion, the cause of death was “due to drowning as a result ofAsphyxia”.It may be noted that nothing comes out from her evidence asto whether the death was suicidal or not. The PW-1Annapurna Limbikai,who happened to be the mother though had alleged in her examination-in-chief that her daughter was murdered by the accused by throwingher in the well, she had admitted that when she reached at the spot, shehad not seen the dead body of her daughter in the well. She had alsoadmitted that she had not stated in her complaint that her daughter hadcommitted suicide by jumping into the well on account of the mental andphysical harassment caused by the accused. At this juncture she wasdeclared hostile, and the public prosecutor was permitted to cross examineher. In the cross-examination she had stated that she did not rememberthe incident as it had occurred long back. In the further cross-examinationby the learned advocate for the accused she had admitted that the accusedno. 3 had informed her on telephone that her daughter-Jayashree hadaccidentally slipped, and as a result thereof she fell down in the well atabout 12.00 O’clock. She also stated that when she, her husband, otherrelatives and the neighbours went to the place of occurrence at about4.30 p.m., they had not seen the dead body floating in the well.

12. PW-4 Sadashiv Limbikai, the father of the deceased also hadstated in his evidence before the Court that he did not knowwhether herdaughter- Jayashree had committed suicide, or the accused had thrownher body into the well. PW-5 Rudrangouda Patil who was instrumentalin arranging the marriage of the deceased with accused no. 3, had statedthat he did not know how Jayashree had fallen down into the well. PW-6 GangappaLimibikai, who happened to be the uncle of the deceasedalso had no knowledge as to how the deceased fell down in the well. Inthe cross-examination, he had admitted that when the dead body wastaken out from the well, all the four accused were present near the well.In short, none of the witnesses examined by the prosecution had anyknowledge as to whether the deceased had jumped into the well or shehad accidently slipped into the well.

13. The PW-21 Dr. Jayashree Masali though had opined that thedeath of the deceased was due to the drowning as a result of Asphyxia,there was no opinion given by her nor any opinion was sought from heras to whether it was a suicide committed by the deceased or it was anaccident by which she fell down in the well. Even if it is presumed that AB

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Athe deceased had committed suicide, there was no evidence whatsoeveradduced by the prosecution that there was an abetment on the part ofany of the accused which haddriven her to commit suicide. There is noevidence worth the name to show that any of the appellants-accusedhad either instigated or intentionally aided or abetted the deceased tocommit suicide or had caused any abetment as contemplated underBSection 107 of the IPC.

14. Though it is true that as per Section 113A of the EvidenceAct, when the question arises as to whether commission of suicide by awoman had been abetted by her husband or any relative of her husband,and when it is shown that she had committed suicide within a period ofCseven years from the date of her marriage and that her husband or suchrelative of her husband had subjected her to cruelty, the Court canpresume, having regard to the other circumstances, that such suicidehas been abetted by her husband or such relative of her husband. However,mere fact of commission of suicide by itself would not be sufficient for Dthe court to raise the presumption under Section 113A of the EvidenceAct, and to hold the accused guilty of Section 306 IPC.

15. In Mangat Ram Vs. State of Haryana[2], this Court consideringthe provisions of Section 498A and 306 of IPC in the light of thepresumption under Section 113A of the Evidence Act, observed as under:- “30. We are of the view that the mere fact that if a marriedEwoman commits suicide within a period of seven years of hermarriage, the presumption under Section 113-A of the EvidenceAct would not automatically apply. The legislative mandate is thatwhere a woman commits suicide within seven years of hermarriage and it is shown that her husband or any relative of herFhusband has subjected her to cruelty, the presumption as definedunder Section 498-A IPC, may attract, having regard to all othercircumstances of the case, that such suicide has been abetted byher husband or by such relative of her husband. The term “theCourt may presume, having regard to all the other circumstancesof the case, that such suicide had been abetted by her husband”Gwould indicate that the presumption is discretionary. So far as thepresent case is concerned, we have already indicated that theprosecution has not succeeded in showing that there was a dowrydemand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fallunder Section 113-A of the Evidence Act.

31. In this connection, we may refer to the judgment of this Courtin Hans Raj v. State of Haryana [(2004) 12 SCC 257 : 2004 SCC(Cri) 217] , wherein this Court has examined the scope of Section113-A of the Evidence Act and Sections 306, 107, 498-A, etc. andheld that, unlike Section 113-B of the Evidence Act, a statutorypresumption does not arise by operation of law merely on theproof of circumstances enumerated in Section 113-A of theEvidence Act. This Court held that, under Section 113-A of theEvidence Act, the prosecution has to first establish that the womanconcerned committed suicide within a period of seven years fromthe date of her marriage and that her husband has subject her tocruelty. Even though those facts are established, the court is notbound to presume that suicide has been abetted by her husband.Section 113-A, therefore, gives discretion to the court to raisesuch a presumption having regard to all other circumstances ofthe case, which means that where the allegation is of cruelty, itcan consider the nature of cruelty to which the woman wassubjected, having regard to the meaning of the word “cruelty” inSection 498-A IPC.”

16. So far as the evidence adduced by the prosecution in theinstant case is concerned, in our opinion the prosecution had failed toadduce any clinching evidence to enable the Court to conclude that theappellants-accused had abetted the deceased to commit suicide. Inabsence of any satisfactory evidence having been brought on record, inour opinion both the Courts below had committed grave error in holdingthe appellants guilty of the offence under Section 306 of IPC.

17. In that view of the matter while upholding the conviction ofthe appellants under Section 498A, we acquit the appellants from thecharges levelled against them under Section 306 of IPC by giving thembenefit of doubt. Since the appellants have already undergone theimprisonment for a period of two years for the offence under Section498A read with Section 34 of IPC, as directed by the courts below, it ishereby directed to set free the appellants forthwith.

18. The appeal stands partly allowed accordingly.

Divya Pandey(Assisted by : Bhavyata Kapoor, LCRA)

Appeal partly allowed.

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