Kamaruddin Dastagir Sanadi vs State of Karnataka Through Sho Kakati Police

2024 INSC 908 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 551 OF 2012

KAMARUDDIN DASTAGIR SANADI …APPELLANT(S)

VERSUS

STATE OF KARNATAKA THROUGH SHO KAKATI POLICE …RESPONDENT(S)

JUDGMENT

PANKAJ MITHAL, J.

1. The accused-appellant was charged under Sections 417, 376

and 306 of the Indian Penal Code1. The trial court acquitted

him of all the above offences, but on appeal by the State of

Karnataka to the High Court, he was convicted for the

Signature Not Verified offences under Sections 417 and 306 IPC. However, the Digitally signed by KANCHAN CHOUHAN Date: 2024.11.29 14:58:25 IST Reason: 1 In short ‘IPC’ 1 acquittal under Section 376 IPC was maintained. He was

awarded sentence of 1 year under Section 417 IPC with a fine

of Rs.5,000/-; and with a sentence of 4 years for the offence

under Section 306 IPC with a fine of Rs.20,000/-. Basically,

the conviction of the accused-appellant is for the offences of

cheating and for abetment of suicide only.

2. A girl named Suvarna, aged about 21 years, was in love with

the accused-appellant for the past 8 years i.e. she was in love

with him since the age of 13 years. It is alleged that the

accused-appellant had promised to marry her but when he

refused, she consumed poison and committed suicide.

3. It is alleged that the accused-appellant, Kamruddin Dastagir

Sanadi, had promised to marry the deceased before the

jamaat (panchayath) but 4 months prior to the incident, he

had left the village and started living at Kakati, Karnataka.

The deceased came to Kakati in the evening of 18.08.2007

and when the accused-appellant clearly refused to marry her,

she left. The deceased spent the whole night at the bus stand

at Kakati and in the morning consumed poison which she

had brought with her from Gadhinglaj. One Badshaha (PW- 2

5), relative of the accused-appellant, found her lying at the

bus stand and took her to hospital at about 08:50 am on

19.08.2007. PSI Kakati (PW-15) recorded the statement of

the deceased between 3 pm and 4 pm & thereafter sent a

requisition to the Executive Magistrate to record the

deceased’s dying declaration. The dying declaration of the

deceased was recorded by the Taluka Executive Magistrate,

Belgaum (PW-11) in the presence of the doctor (PW-12)

between 04.50 pm and 05.20 pm. Thereafter, she died in the

hospital on the same day itself i.e. on 19.08.2007.

4. The mother of the deceased (PW-1) lodged an FIR on

20.08.2007 under Section 306 read with Section 34 IPC at

the Police Station, Kakati, Circle Belgaum Rural District,

Karnataka against the accused-appellant and his uncle,

alleging that the accused-appellant had deceived her

daughter by promising to marry her and then refusing it,

which led to the commission of suicide by her in frustration.

5. After investigation, a chargesheet was drawn and submitted

charging the accused-appellant under Sections 417, 376 and

306 IPC. The accused-appellant was arrested on 20.08.2007 3 and later released on bail during the trial. The IInd Additional

Sessions Judge, Belgaum, vide judgment and order dated

13.04.2010 acquitted the accused-appellant of all the

charges as there was no allegation in the dying declaration

that the accused-appellant ever had any sexual intercourse

with the deceased on the pretext of promise to marry her or

ever had any physical relationship with her. Her only

allegation was that she consumed poison as he refused to

marry her. There was no allegation that the accused-

appellant instigated her to consume poison or to commit

suicide.

6. Moreover, the statement of mother of the deceased (PW-1)

revealed that it was only the deceased who was in love with

the accused-appellant and not the other way around. The

deceased had impressed upon her mother to convince the

accused-appellant to marry her as she was in love with him.

The mother of the deceased (PW-1) nowhere stated that the

accused-appellant was in love with her daughter. No other

evidence was there to prove that any physical relationship

was established by the accused-appellant with the deceased 4 except that he had agreed to marry her before the

panchayath, which was not proved.

7. Thus, in the facts and circumstances of the case coupled with

the fact that there was no evidence to suggest that the

accused-appellant had instigated or aided the deceased in

consuming poison and committing suicide, the trial court

acquitted the accused-appellant.

8. On appeal by the State of Karnataka, the High Court

convicted the accused-appellant under Sections 417 and 306

IPC. Thus, the present appeal.

9. Learned counsel for the parties were heard at length and

ease.

10. The submission of learned counsel for the accused-appellant

is that there is no iota of evidence on record to prove

abetment of suicide or cheating on part of the accused-

appellant and that the High Court is not justified in reversing

the decision of acquittal passed by the trial court.

11. The FIR alleges that the daughter of the complainant, upon

completion of BA, took admission for MA at Gadhinglaj. She

i.e. the mother of the deceased came to know that her 5 daughter was in love with a Muslim boy named Kamruddin

Dastagir Sanadi of the village i.e. the accused-appellant. She

complained about their affair with the reputed people of the

Muslim community of the village and a meeting of the Muslim

community was called wherein the accused-appellant and

her deceased daughter were present and both of them agreed

to marry. The accused-appellant cheated her daughter by

giving false assurance of marriage and by entering into

physical relationship with her, then refusing to marry, which

compelled her to consume poison, leading to her death.

12. The deceased left behind two dying declarations which are

on record. Exh.P17 is the dying declaration recorded by PSI,

Kakati (PW-15) whereas Exh.P10 is another dying

declaration recorded later by the Taluka Executive

Magistrate, Belgaum (PW-11) in the presence of the doctor

(PW-12) in the hospital between 04:50 pm to 05:20 pm on

19.08.2007.

13. The dying declaration of the deceased duly recorded by PSI,

Kakati states that the deceased was a 21 year old girl

studying in MA 1st year. She was in love with the accused- 6 appellant who had left the village 4 months back and had

started residing at Kakati, Belgaum. Allegedly about 8 days

before the incident, he had called on her phone and asked

her to come to Kakati. She reached Kakati in the evening of

18.08.2007 and met him at Avanti Hotel. She asked him to

marry her but he refused to marry and left. She, thereafter,

went to the bus stop and consumed poison which she had

brought with her from Gadhinglaj.

14. The dying declaration recorded later by Taluka Executive

Magistrate (PW-11), Belgaum, on 19.08.2007 states that she

was aged about 21 years and was residing with her mother,

elder sister and younger brother and was studying in MA 1st

year. She was having an affair with the accused-appellant

since last 8 years. Their affair came to the knowledge of the

elder persons of both the families and all of them decided to

perform the marriage. The accused-appellant agreed to

marry her in front of the elders of the village. He left the

village about 4 months ago and when she made inquiries

about him, she came to know that he was residing at Kakati.

She went to Kakati and searched him and made a phone 7 call. Then she met him at Avanti Hotel and asked him to

marry her but he refused. Thereafter, she consumed poison

which she had brought in a bottle from Gadhinglaj. She was

shifted to the hospital for treatment by a relative of the

accused-appellant named Badshaha Nazir Pathan (PW-5) of

Kakati.

15. The aforesaid statement was made in Marathi and a

translated copy was put on record. The doctor had certified

that the patient was fully conscious and fit to give statement.

The Executive Magistrate, Belgaum, has recorded that the

deceased had a frustrated mentality.

16. The dying declaration of the deceased reveals that there is no

allegation of any physical relationship between the accused-

appellant and the deceased or that the accused-appellant

had ever entered into any physical relationship or had sexual

intercourse with the deceased under the pretext of marriage.

The dying declaration indicates that it was the deceased who

was in love with the accused-appellant and wanted to marry

him. When the accused-appellant had left the village, it was

the deceased who made search about him and came to know 8 that he was residing in Kakati. She herself traced him out at

Kakati and went after him. She called him and when they

met, he refused to marry her and thus, as her sentiments

were hurt, she consumed poison leading to her death.

17. There is no allegation by her that the accused-appellant had

instigated her to consume poison or to commit suicide. No

other evidence in this regard has been adduced. Even the

mother of the deceased (PW-1) in her statement revealed that

it was the deceased who was in love with the accused-

appellant and that she wanted her mother to convince him to

marry her. The said witness though may have stated that the

deceased entered into physical relationship with her

daughter but the same otherwise does not stand proved or

corroborated, not even by the dying declarations. As regards

the promise to marry alleged to have been made by the

accused-appellant, it is said that the same was made before

the village elders in context with which Najaruddin

Mohammad Malik (PW-3) and Kashim Babalal Sankeshwar

(PW-4) were examined. Both these witnesses have stated that

they had provided a written document regarding the 9 panchayath proceedings to the deceased and her mother but

no such document was produced by PW-1 to prove that the

accused-appellant had actually ever promised or agreed to

marry her daughter. There is allegation but no evidence to

prove that the accused-appellant was also in love with the

deceased or that he was in touch with her in any manner.

The allegation that both of them were talking to each other

on phone is without any substance as no evidence was

produced in the form of call records of either of them to

establish that the accused-appellant used to call the

deceased and talk to her and to establish that he was also in

love with her. There is no evidence to even establish that the

accused-appellant entered into any physical relationship

with the deceased on the pretext of marrying her. So, the

evidence fails to prove any physical relationship between the

two, promise to marry on the part of the accused-appellant

and that he was instrumental in instigating the deceased to

consume poison or to commit suicide.

18. Section 306 IPC defines abetment of suicide which reads as

under:

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“306. 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.”

19. It provides for the punishment for abetting the commission

of suicide. Therefore, ‘abetment’ of suicide is an essential

element for punishing a person for an offence under Section

306 IPC.

20. Abetment has been defined under Section 107 IPC and it

reads as under:

“107. Abetment of a thing.- A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.”

21. The very first clause of the aforesaid provision lays down that

a person, who abets the doing of a thing, is a person who

instigates any person to do that thing. Therefore, ‘instigation’

11 to do a particular thing is necessary for charging a person

with abetment.

22. ‘Instigation’ is to provoke, incite or encourage a person to do

an act.

23. This Court has repeatedly observed that abetment involves a

mental process of instigating a person or intentionally aiding

a person in doing of a particular thing and without the

positive act on part of the accused there would be no

instigation. It has also been observed that to convict a person

for abetment of suicide under Section 306 IPC, there has to

be a clear mens rea on the part of the accused to abet such

a crime and it requires an active act or a direct act leading

to the commission of suicide.

24. In Ramesh Kumar vs. State of Chhattisgarh2, a three

Judges Bench of this Court dealt with a case of suicide by

the wife, where the husband in anger uttered- ‘You are free

to do whatever you wish and go wherever you like’.

Thereafter, the wife committed suicide. The Court, after

2 (2001) 9 SCC 618 12 examining the meaning of instigation which is an essential

element for abetment of suicide, observed that such words,

uttered out of emotion, do not constitute mens rea and do

not amount to intentionally inciting the other party to

actually do an act which may result in the commission of

self-killing/suicide.

25. Even in cases where the victim commits suicide, which may

be as a result of cruelty meted out to her, the Courts have

always held that discord and differences in domestic life are

quite common in society and that the commission of such an

offence largely depends upon the mental state of the victim.

Surely, until and unless some guilty intention on the part of

the accused is established, it is ordinarily not possible to

convict him for an offence under Section 306 IPC.

26. The salient features constituting an offence under Section

306 IPC were elucidated by this Court in M. Mohan vs. State

represented by the Deputy Superintendent of Police3 and

it was observed as under:

3

(2011) 3 SCC 626 13 “43. This Court in Chitresh Kumar Chopra v.

State (Govt. of NCT of Delhi) [(2009) 16 SCC 605:

(2010) 3 SCC (Cri) 367] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation"

and "goading". The Court opined that there should be intention to provoke, 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 in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

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

45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the disease to commit suicide seeing no option and this act must have been intended to push the disease in two such a position that he/she committed suicide.”

27. The same aspects have been reiterated by this Court in

Amalendu Pal alias Jhantu vs. State of West Bengal4 4 (2010) 1 SCC 707 14 and have been again repeated in Prabhu vs. State

represented by Inspector of Police & Anr.5

28. In Prabhu (supra) the Court further observed that broken

relationships and heart breaks are part of everyday life and

that breaking-up of the relationship would not constitute

any instigation or abetment of suicide inasmuch as in order

to constitute ‘Instigation’ it must be shown that the accused

had by his acts and omissions or by continued course of

conduct created such circumstances that the deceased was

left with no other option except to commit suicide.

29. There is no direct evidence adduced by the prosecution to

prove that the accused-appellant has in any way instigated

or provoked the deceased to commit suicide. The accused-

appellant on asking of the deceased had simply refused to

marry her which is not a positive act on his part with any

intention to abet the crime of suicide.

30. If we examine the instant case on the touch stone of the

above principles of law, we find that the accused-appellant

5 2024 SCC Online SC 137 15 had simply refused to marry the deceased and thus, even

assuming there was love between the parties, it is only a case

of broken relationship which by itself would not amount to

abetment to suicide. The accused-appellant had not

provoked the deceased in any manner to kill herself; rather

the deceased herself carried poison in a bottle from her

village while going to Kakati, Karnataka with a

predetermined mind to positively get an affirmation from the

accused-appellant to marry her, failing which she would

commit suicide. Therefore, in such a situation simply

because the accused-appellant refused to marry her, would

not be a case of instigating, inciting or provoking the

deceased to commit suicide.

31. Even assuming, though there is no evidence that the

accused-appellant promised to marry the deceased, that

there was such a promise, it is again a simple case of a

broken relationship for which there is a different cause of

action, but not prosecution or conviction for an offence

under Section 306, specially in the facts and circumstances

16 of the case where no guilty intention or mens rea on the part

of the accused-appellant had been established.

32. In view of the facts and circumstances of the case, we are of

the opinion that the judgment and order of the High Court

dated 15.12.2011 cannot be sustained in law and is hereby

set aside and the accused-appellant stands acquitted as was

done by the trial court.

33. The appeal is allowed with no order as to cost.

.........………………………….. J.

(PANKAJ MITHAL)

...……………………………….. J.

(UJJAL BHUYAN)

NEW DELHI;

NOVEMBER 29, 2024.

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