Kashibai vs The State Of Karnataka

REPORTABLE 2023 INSC 722

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. …. Of 2023 (Arising out of SLP (Crl.) No. 8584/2022)

KASHIBAI & ORS. .... APPELLANTS

VERSUS

THE STATE OF KARNATAKA .... RESPONDENT

JUDGMENT

BELA M. TRIVEDI, J.

1. Leave granted.

2. The judgment and order dated 06.03.2021 passed by the High Court of

Karnataka, Kalaburagi Bench in Criminal Appeal No.200027/2014 is

under challenged before this Court, whereby the High Court has

dismissed the said appeal filed by the appellants-accused against the

judgment and order dated 11.02.2014 passed by the II Additional

Sessions Judge, Bijapur (hereinafter referred to as “the Sessions Court”)

in Sessions Case No.5/2011. The Sessions Court vide the said

judgment and order had convicted and sentenced the present appellant

i.e., the accused nos. 1, 2 and 3 for the offences under Section 498A

and Section 306 read with Section 34 of IPC, and acquitted the accused

no.4 Santosh Jangamshetti, son of Kallappa Jangamshetti, who

happened to be the brother-in-law of the deceased Jayashree, from the 2

said charges.

3. The deceased Jayashree had married the appellant no. 3,

Chandrashekhar about three years prior to the alleged incident. The

appellant nos.1 and 2 happened to be the mother-in-law and father-in-

law of the said deceased respectively. Smt. Annapurna, wife of Sadashiv

Limbikai, mother of the deceased lodged a complaint before the

Bableshwar Police Station alleging inter alia that her daughter

Jayashree was given in marriage to accused no.3, Chandrashekhar.

After the marriage, 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 suicide on 07.02.2010 at about 11:00 am by jumping into an

open well situated in a land bearing Survey Number 53/4 at the Tigani

Bidari village. The said complaint came to be registered against the

accused for the offences under Section 498A and 306 read with Section

304 of IPC. The Sessions Court conducted the trial and after

appreciating the evidence on record, convicted the appellants for the

said offences and sentenced them to undergo simple imprisonment for a

period of two years and to pay a fine of Rs. 2,000/- each for the offences

under Section 498A read with Section 34 of IPC, and to undergo simple

imprisonment for a period of five years and to pay a fine of Rs.5,000/-

each for the offences under Section 306 read with Section 34 of IPC. 3

The High Court confirmed the said conviction and sentence as per the

impugned order.

4. After having heard the learned counsels for the parties and thoroughly

gone through the record of the case, it appears that the prosecution to

bring home the charges levelled against the appellants-accused had

examined 21 witnesses and also adduced the documentary evidence.

However out of the 21 witnesses, PW-10, PW-11, PW-12 and PW-14

had turned hostile and not supported the case of the prosecution. The

case of the prosecution as such mainly depended upon the PW-1 and

PW-4 who happened to be the parents of the deceased and PW-6 who

happened to be the uncle of the deceased. They all had deposed inter

alia about the demand of the dowry in the form of cash and gold, and

about the harassment meted out by them to the deceased mentally and

physically. PW-5 who happened to be the person known to both the

sides and who was instrumental in arranging the marriage between the

deceased and the appellant no. 3 also had deposed that there was a

demand for additional gold and cash made by the appellants-accused

and that there was harassment caused by the appellants to the

deceased Jayashree. The neighbours, PW-7 and PW-9 also had

supported the case of the prosecution by deposing inter alia that the

deceased was subjected to mental and physical harassment by the

appellants-accused.

4

5. Having regard to the said evidence, which has been also appreciated by

the Sessions Court and High Court, there remains no shadow of doubt

that the deceased was subjected to the harassment at the instance of

the appellants-accused and that the prosecution had successfully

brought home the charges levelled against them so far as the offence

under Section 498A read with Section 34 of IPC was concerned.

However, the next question that falls for consideration before this Court

is whether the prosecution had proved beyond reasonable doubt the

charge levelled against the appellant with regard to the offence

punishable under Section 306 read with Section 34 of IPC.

6. At this juncture, it would be beneficial to reproduce the relevant provision

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 punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

7. What is “Abetment of a thing” has been described in Section 107 which

reads as under: -

“107. 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.

Explanation 1. —A person who, by willful misrepresentation, or by willful concealment of a material 5

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.”

8. From the bare reading of the said provisions, it clearly transpires that in

order to convict a person for the offences under Section 306 IPC, the

basic constituents of the offence namely where the death was suicidal

and whether there was an abetment on the part of the accused as

contemplated in Section 107 IPC have to be established.

9. In M. Mohan Vs. State Represented by the Deputy Superintendent

of Police1, this Court has elaborately dealt with the provisions contained

in Section 306 read with Section 107 IPC, and after discussing various

earlier decisions has observed as under: -

“41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] has examined different shades of the meaning of “instigation”. Para 20 reads as under : (SCC p. 629) “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 to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one 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.” In the said case this Court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant-accused having abetted commission of suicide by Seema (the appellant's

1 (2011) 3 SCC 626 6

wife therein) may necessarily be drawn.

42. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 :

1994 SCC (Cri) 107] this Court has cautioned that (SCC p. 90, para 17) the Court should 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 her life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the 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.

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 deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.”

10. In view of the above, it is quite clear that in order to bring the case within

the purview of ‘Abetment’ under Section 107 IPC, there has to be an

evidence with regard to the instigation, conspiracy or intentional aid on 7

the part of the accused. For the purpose proving the charge under

Section 306 IPC, also there has to be an evidence with regard to the

positive act on the part of the accused to instigate or aid to drive a

person to commit suicide.

11. So far as facts of the present case are concerned, the prosecution had

sought to lead the evidence by examining the witnesses to prove that

the deceased had committed suicide because of the mental and

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 the deceased as mentioned in the post-mortem report (Exhibit-14). As

per her final opinion, the cause of death was “due to drowning as a

result of Asphyxia”. It may be noted that nothing comes out from her

evidence as to whether the death was suicidal or not. The PW-1

Annapurna Limbikai, who happened to be the mother though had

alleged in her examination-in-chief that her daughter was murdered by

the accused by throwing her in the well, she had admitted that when she

reached at the spot, she had not seen the dead body of her daughter in

the well. She had also admitted that she had not stated in her complaint

that her daughter had committed suicide by jumping into the well on

account of the mental and physical harassment caused by the accused.

At this juncture she was declared hostile, and the public prosecutor was

permitted to cross examine her. In the cross-examination she had stated 8

that she did not remember the incident as it had occurred long back. In

the further cross-examination by the learned advocate for the accused

she had admitted that the accused no. 3 had informed her on telephone

that her daughter-Jayashree had accidentally slipped, and as a result

thereof she fell down in the well at about 12.00 O’clock. She also stated

that when she, her husband, other relatives and the neighbours went to

the place of occurrence at about 4.30 p.m., they had not seen the dead

body floating in the well.

12. PW-4 Sadashiv Limbikai, the father of the deceased also had stated in

his evidence before the Court that he did not know whether her

daughter- Jayashree had committed suicide, or the accused had thrown

her body into the well. PW-5 Rudrangouda Patil who was instrumental in

arranging the marriage of the deceased with accused no. 3, had stated

that he did not know how Jayashree had fallen down into the well. PW-6

Gangappa Limibikai, who happened to be the uncle of the deceased

also had no knowledge as to how the deceased fell down in the well. In

the cross-examination, he had admitted that when the dead body was

taken out from the well, all the four accused were present near the well.

In short, none of the witnesses examined by the prosecution had any

knowledge as to whether the deceased had jumped into the well or she

had accidently slipped into the well.

13. The PW-21 Dr. Jayashree Masali though had opined that the death of

the deceased was due to the drowning as a result of Asphyxia, there 9

was no opinion given by her nor any opinion was sought from her as to

whether it was a suicide committed by the deceased or it was an

accident by which she fell down in the well. Even if it is presumed that

the deceased had committed suicide, there was no evidence

whatsoever adduced by the prosecution that there was an abetment on

the part of any of the accused which had driven her to commit suicide.

There is no evidence worth the name to show that any of the appellants-

accused had either instigated or intentionally aided or abetted the

deceased to commit suicide or had caused any abetment as

contemplated under Section 107 of the IPC.

14. Though it is true that as per Section 113A of the Evidence Act, when the

question arises as to whether commission of suicide by a woman 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 of seven

years from the date of her marriage and that her husband or such

relative of her husband had subjected her to cruelty, the Court can

presume, having regard to the other circumstances, that such suicide

has 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 the court to raise the presumption under Section 113A of

the Evidence Act, and to hold the accused guilty of Section 306 IPC. 10

15. In Mangat Ram Vs. State of Haryana2, this Court considering the

provisions of Section 498A and 306 of IPC in the light of the presumption

under Section 113A of the Evidence Act, observed as under: -

“30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term “the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband” would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.

31. In this connection, we may refer to the judgment of this Court in Hans Raj v. State of Haryana [(2004) 12 SCC 257 : 2004 SCC (Cri) 217] , wherein this Court has examined the scope of Section 113-A of the Evidence Act and Sections 306, 107, 498-A, etc. and held that, unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. This Court held that, under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty.

Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word “cruelty” in Section 498-A IPC.”

2 (2014) 12 SCC 595 11

16. So far as the evidence adduced by the prosecution in the instant case is

concerned, in our opinion the prosecution had failed to adduce any

clinching evidence to enable the Court to conclude that the appellants-

accused had abetted the deceased to commit suicide. In absence of any

satisfactory evidence having been brought on record, in our opinion both

the Courts below had committed grave error in holding the appellants

guilty of the offence under Section 306 of IPC.

17. In that view of the matter while upholding the conviction of the appellants

under Section 498A, we acquit the appellants from the charges levelled

against them under Section 306 of IPC by giving them benefit of doubt.

Since the appellants have already undergone the imprisonment for a

period of two years for the offence under Section 498A read with Section

34 of IPC, as directed by the courts below, it is hereby directed to set

free the appellants forthwith.

18. The appeal stands partly allowed accordingly.

..………………………. J.

[AJAY RASTOGI]

…..................................J. [BELA M. TRIVEDI] NEW DELHI;

28.02.2023 12

ITEM NO.1502 COURT NO.5 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 8584/2022

(Arising out of impugned final judgment and order dated 06-03-2021 in CRLA No. 200027/2014 passed by the High Court Of Karnataka At Kalaburagi)

KASHIBAI & ORS. Petitioner(s)

VERSUS

THE STATE OF KARNATAKA Respondent(s)

(IA No. 10990/2022 - EXEMPTION FROM FILING O.T.)

Date : 28-02-2023 This matter was called on for pronouncement of Judgment today.

For Petitioner(s) Mr. Prakash Jadhav, Adv. Mr. Parikshit Angadi, Adv. Mr. Anirudh Sanganeria, AOR

For Respondent(s) Mr. Shubhranshu Padhi, AOR Mr. Vishal Bansal, Adv. Ms. Rajeshwari Shankar, Adv. Mr. Niroop Sukirthy, Adv. Mohd Ovais, Adv.

Hon’ble Ms. Justice Bela M. Trivedi pronounced the reportable

Judgment of the Bench comprising Hon’ble Mr. Justice Ajay Rastogi

and Her Ladyship.

Leave granted.

The appeal is partly allowed. The operative part of the

Judgment is reproduced hereunder :-

“17. In that view of the matter while upholding the conviction of the appellants under Section 498A, we acquit the appellants from the charges levelled against them under Section 306 of IPC by giving them benefit of doubt. Since the appellants have already 13

undergone the imprisonment for a period of two years for the offence under Section 498A read with Section 34 of IPC, as directed by the courts below, it is hereby directed to set free the appellants forthwith.

18. The appeal stands partly allowed accordingly.”

Pending interlocutory application(s), if any, is/are disposed

of.

(JAYANT KUMAR ARORA) (VIRENDER SINGH) ASTT. REGISTRAR-cum-PS BRANCH OFFICER

(Signed reportable Judgment is placed on the file)