KASHIBAI vs. THE STATE OF KARNATAKA

1 REPORTABLE 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 J U D G M E N T 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 Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2023.02.28 16:21:44 IST Reason: 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: -

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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 1 of Police , 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: -

1 (2011) 3 SCC 626 6

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

2 (2014) 12 SCC 595 11

. .………………………. 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)