M K DEVARAJU v. STATE BY CHIKKAJALA POLICE STATION

Judgment

1. This appeal is filed by appellant Nos. 1 to 3 – accused Nos. 1 to 3 praying to set aside the judgment of conviction and order of sentence dated 01.12.2011 passed in SC No. 39/2010 by the Fast Track Court, Devanahalli. Appellant Nos. 1 to 3 – accused Nos. 1 to 3 have been convicted for offence under Section 498-A and 306 read with Section 34 of IPC. Appellant Nos. 1 to 3 – accused Nos. 1 to 3 have been sentenced to undergo simple imprisonment for a period of 2 years and to pay fine of Rs.2,000/- each for offence under Section 498-A of IPC and sentenced to undergo imprisonment for 5 years and to pay fine of Rs.3,000/- for offence under Section 306 of IPC. The trial Court ordered both the sentenced to run concurrently. The trial Court has acquitted the appellant - 3 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 Nos. 1 to 3 – accused Nos. 1 to 3 for offence under Section 304-B of IPC.

2. Factual matrix of the prosecution case is that the marriage of deceased – Pabitha and appellant No. 1 – accused No. 1 was a love marriage. After marriage deceased – Pabitha was residing with the appellant Nos. 1 to 3 – accused Nos. 1 to 3 in their house. It is alleged that appellant Nos. 1 to 3 – accused Nos. 1 to 3 were pressurizing the deceased to bring Rs.50,000/- from her mother’s house in order to clear the loan and appellant Nos. 2 and 3 – accused Nos. 2 and 3 were telling the deceased that they want to perform another marriage to appellant No. 1– accused No. 1 and in that regard they were harassing the deceased – Pabitha. It is further case that appellant Nos. 2 and 3 – accused Nos. 2 and 3 asked the deceased to stay in their another house situated at Palakamanagara but they did not reside in that house. Appellant No. 1– accused No. 1 and the deceased were residing in the house of mother of the deceased prior to - 4 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 the incident. Appellant No. 1– accused No. 1 did not give enough money to the deceased to run the house and used to come home by drinking and he used to quarrel with the deceased. Appellant No. 1– accused No. 1 did not heed to the request of the deceased to become a taxi driver instead of lorry driver. Under these circumstances the deceased poured kerosene on herself and set her ablaze in the house of her mother. Appellant No. 1– accused No. 1

tried to put off the fire and thereafter took the deceased, with the help of others, to the hospital. The deceased was in the hospital from the date of incident, i.e., 29.08.2009 till the date of her death on 02.09.2009. On the complaint filed by the mother the deceased a case came to be registered against the appellant Nos. 1 to 3 – accused Nos. 1 to 3 and after investigation charge sheet came to be filed against the appellant Nos. 1 to 3 – accused Nos. 1 to 3 for offence under Section 498-A and 304-B of IPC read with Section 34 of the IPC. Case came to be committed to the Sessions Court. The trial Court framed charges against the appellant Nos. 1 to 3 – accused Nos. 1 - 5 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 to 3 for the offence under 498-A and 304-B of IPC. In order to prove the charge the prosecution examined P.W.1 to P.W.17 and got marked Ex.P.1 to Ex.P.18 and M.O.1 to M.O.6. Statement of appellant Nos. 1 to 3 – accused Nos. 1 to 3 came to be recorded under Section 313 of Cr.P.C. The trial Court, after hearing arguments, formulated points for consideration and after appreciating the evidence on record, convicted the appellant Nos. 1 to 3 – accused Nos. 1 to 3 for offence under Sections 498-A and 306 read with Section 34 of IPC and passed sentence as noted above and acquitted them for offence under Section 304-B of IPC.

3. Heard arguments of learned counsel for appellant Nos. 1 to 3 – accused Nos. 1 to 3 and learned HGCP for respondent – State.

4. Learned counsel for appellant Nos. 1 to 3 – accused Nos. 1 to 3 would contend that the alleged dying declaration – Ex.P.13 contains endorsement of the Doctor at the beginning and also at the end stating that the patient is fit to give statement and statement is recorded - 6 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 before him. Said Doctor has not been examined. He further submits that in the case sheet it is mentioned that the patient refused to give statement and at that time her mother has given the statement. In that it is noted that her husband has poured water and changed her dress. He submits that when the deceased herself has refused to give statement, there is no question of she giving statement before the Police as per Ex.P.13 that too in the midnight on the same day. He further submits that there is no instigation by the appellant Nos. 1 to 3 – accused Nos. 1 to 3 to the deceased to commit suicide. There is no positive evidence in that regard. He further submits that the hospital records do not mention regarding the recording of dying declaration. He further submits that P.W.1 – mother of the deceased has stated in her evidence that the appellant Nos. 1 to 3 – accused Nos. 1 to 3 did not demand dowry and when she asked for money, they refused and they said they do not want money. He contends that the deceased was upset as appellant No. 1 – accused No. 1 who is her husband refused to shift from - 7 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 lorry driver to taxi driver and it affected her reputation as she was working as a receptionist in ICICI Bank. He contends that the deceased was residing in the house of her mother since three months prior to the incident and therefore, there is no question of harassment by appellant Nos. 2 and 3 – accused Nos. 2 and 3. A bathroom was constructed in the building for the deceased and appellant No. 1– accused No. 1 and they were asked to reside in that constructed house, but appellant No. 1– accused No. 1 refused to go and reside in that house and the deceased was upset by that. Inspite of the Investigating Officer making request to the Tahsildar, The Tahsildar has not recorded the dying declaration of the deceased. P.W.17 – Investigating Officer, in his cross-examination, has admitted that there is no demand for money and even in Ex.P.9 – statement of P.W.1 it is stated that there is no demand for money. He contends that dying declaration is a planted and created and it is surrounded by suspicious circumstances. The conduct of the husband of the deceased in putting water on the deceased to save her and - 8 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 he also sustaining burn injuries itself shows that he did not intend the deceased to commit suicide. Marriage of the deceased and appellant No. 1– accused No. 1 was a love marriage and therefore there is no question of any demand for dowry or money. The dying declaration – Ex.P.13 does not establish instigation to commit suicide. The trial Court when it acquitted the appellant Nos. 1 to 3 – accused Nos. 1 to 3 for offence under Section 304-B of IPC it cannot convict them with the same evidence for offence under Section 498-A and 306 of IPC. He placed reliance on the following decisions. a) The State of Karnataka Vs. Chandrashekar and Ors., Crl.A.No.1429/2016 - MANU/KA/22857/2022. b) Mariano Anto Bruno & Anr. Vs. The Inspector of Police, Crl.A.No.1628/2022 – MANU/SC/1310/2022. c) Sanju Vs. State of Madhya Pradesh, Crl.A.No.572/2002 – MANU/SC/0392/2002. d) Rajaram Vs. State of Madhya Pradesh and Ors., Crl.A.No.2311/2022 – MANU/SC/1635/2022. - 9 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011

5. Per contra, learned HCGP appearing for the respondent – State argued that the trial Court, on appreciation of the evidence on record, has rightly convicted the appellant Nos. 1 to 3 – accused Nos. 1 to 3. He supported the reasoning assigned by the trial Court. He further argued that evidence of P.W.1, P.W.4 to P.W.7 and Ex.P.13 – the dying declaration are sufficient to convict the appellant Nos. 1 to 3 – accused Nos. 1 to 3 for offence under Sections 498-A and 306 of IPC. On these grounds he sought for dismissal of the appeal.

6. On the grounds made out and arguments advanced the following point arises for my consideration. Whether trial Court erred convicting appellant Nos. 1 to 3 – accused Nos. 1 to 3 for offence under Sections 498-A and 306 of IPC?

7. My answer to the above question is in the affirmative for the following reasons: - 10 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 Marriage of deceased – Pabitha with appellant No.1 – accused No.1 was a love marriage. As per the evidence of P.W.1 – mother of the deceased, marriage of appellant No.1 – accused No.1 with the deceased took place on

25.08.2008 at Mangaluru and it was not intimated to her and she had not attended the said marriage. P.W.1 has stated that appellant No.1 – accused No.1 was having more love with the deceased Pabitha and appellant Nos.2 and 3 – accused Nos.2 and 3 were not having much love with the deceased. Even P.W.1 has stated that when she asked appellant Nos.2 and 3 – accused Nos.2 and 3 whether they need dowry/money, at that time they told that they do not want any dowry/money and they are satisfied with the earnings of appellant No.1 – accused No.1.

8. P.W.1 in her evidence has stated that appellant No.1 – accused No.1 – husband of the deceased was a lorry driver. She has further stated that she, the deceased and appellant Nos.2 and 3- accused Nos. 2 and 3 were - 11 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 insisting the husband of the deceased to become airport taxi driver. But, appellant No.1 – accused No.1 was not interested in becoming a taxi driver. It is not in dispute that since three months the deceased and her husband - appellant No.1 – accused No.1 were residing in the house of P.W.1 – mother of the deceased and appellant Nos.2 and 3- accused Nos. 2 and 3 were residing separately in their house. In a house belonging to the accused, a bathroom and toilet were constructed and appellant Nos.2 and 3- accused Nos. 2 and 3 asked the deceased and appellant No.1 – accused No.1 to go and reside in that and appellant No.1 – accused No.1 refused to go and reside in that house and continued to reside in the house of mother of the deceased. Even though it is alleged that appellant Nos.2 and 3- accused Nos. 2 and 3 including appellant No.1 – accused No.1 abetted the deceased to commit suicide by giving harassment to her, the same cannot be accepted since appellant Nos.2 and 3- accused Nos. 2 and 3 were residing in a separate house and the deceased and her husband were residing in the house of the mother of - 12 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 the deceased. P.W.1 has admitted that the deceased and appellant No.1 – accused No.1, when they were residing in her house, were residing happily.

9. The deceased attempted to commit suicide by pouring kerosene and set fire on 29.08.2009 in the house of her mother and appellant No.1 – accused No.1 poured water to save her and took her to the hospital. In the case sheet of the hospital, which is summoned by the trial Court, it is noted that the deceased even though was fit to give statement at the time of admission, refused to give statement and the hospital staff took the statement of the mother of the deceased. The deceased was admitted to the hospital on the date of incident, i.e., 29.08.2008 and in the same night, statement of the deceased has been recorded by P.W.14 - Police Constable as per Ex.P.13. Said statement Ex.P.13 has been recorded in midnight at 03.00 am on 30.08.2009 by P.W.14 - Police Constable. The prosecution, inspite of giving opportunity to summon and examine the said Doctor who had endorsed on Ex.P.13, - 13 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 did not secure and examine him. Therefore, whether the deceased was fit to give statement on 30.08.2009 at

03.00 am has not been proved by the prosecution. Said statement is recorded on the same day when the deceased refused to give her statement at the time of her admission to the hospital. Even if the contents of Ex.P.13 – the dying declaration are taken into consideration it is only with regard to the accused persons harassing the deceased stating that they had loan of Rs.50,000/- and they asking the deceased to bring money from her mother’s house and asking the deceased to reside along with her husband in a separate house. Said statement in Ex.P.13 is contra to the evidence of P.W.1 – mother of the deceased, that is, when P.W.1 – mother of the deceased asked appellant Nos.2 and 3 – accused Nos.2 and 3 whether they wanted any money/dowry, they told that they do not want any money. Said aspect itself goes to show that the accused persons had not insisted the deceased to bring any money from her mother’s house. - 14 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011

10. In Ex.P.13 it is stated that appellant No.1 – accused No.1 refused to go to own house wherein bathroom was constructed to reside therein along with the deceased and the deceased was upset and she poured kerosene and set fire on herself. Apart from that the deceased was also upset as her husband did not become airport taxi driver as intended by her, her mother and appellant Nos. 2 and 3 – accused Nos.2 and 3 and it affected her reputation as she was working as a receptionist in ICICI Bank. Even the evidence of P.W.3 – neighbor, P.W.4 to P.W.6 – climates of the deceased and P.W.7 – relative of the deceased will not establish that the deceased was harassed by the accused persons so as to drive her to commit suicide. Merely because appellant Nos. 2 and 3 – accused Nos.2 and 3 told the deceased to go and die it does not amount to abetment.

11. The Hon’ble Apex Court in the case of Sanju Vs. State of Madhya Pradesh, reported in AIR 2002 SC 1998 held that the accused persons telling the deceased - 15 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 to go and die itself does not constitute ingredient of instigation.

12. The deceased was upset with the decision of her husband in refusing to become airport taxi driver from lorry driver and he refusing to shift to new house inspite of its renovation by constructing a bathroom. The deceased was working as a receptionist in ICICI Bank and she might have felt that as her husband is a lorry driver, it will affect her reputation.

13. The Hon’ble Apex Court in the case Mariano Anto Bruno & Anr. Vs. The Inspector of Police reported in MANU SC 1310/2022 has held as under: “42. It is well settled that the Courts ought to be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. Reference may be made to the judgment of a three-Judge Bench of this Court in Ramesh Kumar Vs. State of Chattisgarh, Wherein this - 16 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 Court set-aside the conviction of the accused for the offence under Section 306 IPC as ingredients of Section 306 IPC were not satisfactorily proved. It was observed as under:- “20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present on is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

21. In State of West Bengal v.Orilal Jaiswal and Anr., this Court has cautioned that the Court should be extremely careful in assessing - 17 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society circumstanced individual in a society commit suicide, conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”

14. Considering all these aspects, it appears, that the deceased was sensitive and she was upset with the decision of her husband and therefore, she might have committed suicide.

15. Appellant Nos. 2 and 3 – accused Nos.2 and 3 were residing separately and the deceased and her - 18 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 husband were residing in the house of her mother since three months prior to the incident. Therefore, there is no question of appellant Nos. 2 and 3 – accused Nos.2 and 3 harassing the deceased demanding her to bring money from her mother’s house. P.W.1 herself has admitted in her evidence that the accused persons did not demand money and when she asked whether they want money, they told that they do not want money. Considering all these aspects, the evidence on record will not establish that the appellant Nos. 1 to 3 – accused Nos.1 to 3 have committed offence under Sections 498-A and 306 of IPC. Without considering all these aspects the trial Court has erred in convicting the appellant Nos. 1 to 3 – accused Nos.1 to 3 for the said offences. In the result, the following; O R D E R I. The appeal is allowed. II. The judgment of conviction and order of sentence dated 01.12.2011 passed in SC No. - 19 - NC: 2024:KHC:5079 CRL.A No. 1239 of 2011 39/2010 by the Fast Track Court, Devanahalli is set aside. III. The appellant Nos. 1 to 3 – accused Nos.1 to 3 are acquired for offence under Sections 498-A and 306 of IPC. Sd/- JUDGE LRS List No.: 1 Sl No.: 9