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Sri. Kalyankumar S/O Deepak Nilaj vs The State Of Karnataka on 21 September, 2011

Karnataka High Court Sri. Kalyankumar S/O Deepak Nilaj vs The State Of Karnataka on 21 September, 2011Author: Anand Byrareddy

IN THE 111011 COURT OF KARNATAKA

CiRCUIT BENUFI AT DH:RV:[)

DATEI) 11115 ’11 IF 21 DAY OF SEPTEMBER 201 1 BEFORE

THE I-ION’BLF MR JUSTICE ANAND [3YRARFDDY (II1I[ PETIT ION No. 10893 2011

BET VLEN:

Shri Kalyankumar,

Son of Deepak iIaj,

Aued 37 years. 0cc: Business.

Resident ol Subhash Road,

Sankeshvar, Hukkeri Taluk.

Beluauni District. PETII lONER (By Shri Srinand – Pachchapure, Advocate) AND:

The State of Karnataka,

By Sankeshwar Police Station,

Now represented b the

State Public Prosecutor. ..RESIi0I)E I (13 Shri /inavak S Kulkarni. Government Pleader) 1’his Crinii nal Petition is flied under Section 42 of’ the Code of Criminal Procedure seeking to set ide the order dated 27.6.2011 passed on Application under section 227 of’ the Code of Criminal Procedure in S.C.o.5 1 20 It) b the V Additional District and Sessions .Judge. Beleaum marked at Annexure-A and consequently allow the app! ication flied under Section 227 of the Eode of Criminal Procedure by the petitioner.

[‘his coming on for Admission this day, petition the court made the following:

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Heard the learned counsel for the petitioner and the learned (Io ernment Pleader.

2. The thcts of the case are as ftllows:

On the complaint of one Niahantesh Shivarai Mardi. the Sankeshwar Police had registered a case against the present petitioner for oflences punishable under Sections 498A. 302 and 506 of the Indian Penal Code (hereinafter referred to as the ‘I PC’ for brevity) and on in estiLLation. have filed a charae sheet before the Judicial Magistrate First Class for the said olfences while in the charge–sheet the oliences alleged are S

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punishable under Section 498A and 306 of the IPC. 1’he petitioner has been granted bail. The case is pending trial before the Court of Sessions. The petitioner had sought for discharge under Section 227 of the Code of Criminal Procedure. 1973 (hereinafter referred to as the Cr.PC’ for brevity) and the same having been rejected, the present petition is filed.

3. The learned counsel for the petitioner would contend that from a reading of the charge-sheet, it is evident that the ingredients of Section 306 of the IPC are not attracted and on this count alone, the petitioner is entitled for discharge and from a reading of the statements of the several witnesses, it could be seen that the deceased wife of the petitioner had committed suicide and left behind a suicide note to state that she was frustrated on account of a severe stomach ache, which she suffered from and which was not diagnosed nor could be treated over time and it is for that reason that she was committing 4

suicide. The petitioner had two daughters. aged 9 and 4. and that the petitioner and the deceased were married for almost I I years and accordingly. there was no occasion on which the deceased had complained of any kind of harassment or ill- treatment and therefore, the allegation that the petitioner had instigated the deceased to commit suicide cannot be presumed on the basis of the mere allegation by the complainant, who was not living alongwith the couple. to have witnessed any such incident and it is on his mere allegation, which is hearsay, that the said section is pressed into service. Insofar as the statement made by the daughter of the petitioner. who is said to have been an eye-witness to the deceased committing suicide. it again cannot be said that the petitioner was the reason fbr the deceased to have committed suicide. The death having been caused by hanging is borne out by the Medical Report and therefore, the petitioner being implicated for an offence punishable under Section 306 of the IPC, is wholly out of place and hence the court below has committed an error in rejecting the application seeking discharge in respect of the said offence. The further allegation that the petitioner has consistently harassed the deceased for not having given him a male child, is also not tenable since the deceased had undergone Tuhectomv with the consent of the petitioner and thereibre. the petitioner who was fully a’are that she was no longer capable of giving birth to a child and the allegation is thereibre not logical and cannot be sustained. It is also on record that the petitioner had transferred his ancestral property in favour of the petitioner and unless there as a cordial relationship between the parties. there was little chance of such a transfer and this is yet again a circumstance which has been overlooked by the trial court in having rejected the application of the petitioner.

4. The learned counsel places reliance on the language of Section 306 read with Section 107 of the I PC to assert that the tenor of the language would indicate that there must he circumstances to show that the accused had instigated the I

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deceased to commit suicide. i’he burden was therefore heavy on the prosecution in this regard and unless, prima facie. it can be demonstrated that there were circumstances present. which is reflected from the material on record, the court proceeding to frame the charges invoking Section 306 of the lIt would result in the petitioner being faced with more serious charges than could possibly be framed against the petitioner. The learned counsel also places reliance on judgments of the apex court which has interpreted the scope of Section 306 and the ingredients that necessarily have to be demonstrated in a given case, in order that a charge under Section 306 could be brought home. Reliance is placed on a judgment in the case of Saqfu ‘il Swjay Singh Sengar vs. Slow qf sllaclftiv Prculesh. 2002 AIR SC 1998. as also the judgment in the case of £ & chheenc, vs. Vay Rumor .tlahajan and another, (2011)2 SEX’ (E’ri)4ó5 and hence he would submit that it is a lit case where the accused ought to be discharged. 7

5. While incidentally, he would submit that. at best, a prima fade case, under Section 498A which could be made out, cannot be enlarged into a case inviting an oftènce punishable under Section 306. The uncertainty on the part of the prosecution insofar as the role of the petitioner in the deceased having committed suicide is also evident from the fact that. though incidentally, the complaint was registered alleging an offence punishable under Section 302 of the (PC. by the time, the charge sheet was tiled, the prosecution has decided that there was no case made out for an otlbnce punishable under Section 302 of the IPC and the same has been watered do n to offences punishable under Sections 498A and 306 of the IPC. This is demonstrative of lack of application of mind both by the prosecution as well as by the trial court. which has rejected the application seeking discharge and it is on a mechanical application of the said provisions that the charges have now been framed.

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6. [‘he learned Government Pleader, on the other hand, ould seek to j usli fv the rejection of the application made h the petitioner and ould point out that the complainant, who was the brother ot the deceased, had spoken to the deceased immediately prior to the incident and he was inlormed by the deceased that the petitioner as consistently abusing her phvsicall and as assaulting her apart from harassing her on every sinle occasion and that she feared much for her Ii l and it is in thai. background that a complaint was registered invokinu Section 302 of the IPC. As there was no prima facie case that was made out for want of material, on the further statement of the dauahter of the deceased. who was a witness to her mother committing suicide and who was of su flcient maturit to have related the earlier occasions vhen the petitioner had assaulted and ill–treated the deceased. that the prosec ution as o I the firm opinion that an o hence punishable under Section 306 of the IPC had been committed and thereibre. the same having been invoked, cannot be said to be 9

out of place. The admitted circumstance that there may be a prima facie case that could possibly be tried under section 498A of the IPC, would necessarily require the attendant circumstance of the petitioner having goaded the deceased to have committed suicide being also tried and it is the burden of the prosecution to establish the same. Ilence, it cannot be said that it causes any grave prejudice to the petitioner at this point of time, as he necessarily has to stand trial atleast for an otlence under Section 498A and hence, he would submit that it would be premature to discharge the accused on the contention that the petitioner’s role would not answer the requirement under Section 306 read with Section 107 of the IPC.

7. The learned counsel for the petitioner, by way of reply. would emphasize that in a case alleging instigation to commit suicide would require adequate circumstances which could be demonstrated with reference to material witnesses and their statements. In the present case on hand. there are no 10

witnesses who have stated that there was a constant harassment to the petitioner which was capable of driving her to suicide. This is further fortified by the fact that there was a suicide note by the deceased, which would water down the circumstance of the daughter of the petitioner having stated that the petitioner was given to harassing the deceased time and again and insofar as the complainant’s statement is concerned. admittedly. he was not physically present on any single occasion when there was a possibility of the petitioner having harassed the deceased. It is mere hearsay. Therefore, he would submit that applying the ratio as laid down by the judgments of the apes court. it cannot be said that there was abetment to commit suicide as contemplated in law and therefore, the charge ought to fail and hence he would submit that the petition be allowed.

8. In the above facts and circumstances, though the endeavour on the part of the learned counsel for the petitioner is to demonstrate that the definition of ‘abetment’ as contained in g

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the IPC is not applicable to the present case on hand and the insistence that though in criminal lass. there can he no precedent on facts and circumstances, as each case would turn on its own facts and circumstances, the general principles laid down with relèrence to the interpretation of the expression ‘instigation’ as contained in Section 306 of the IPC, is sufficiently explicit, to apply the same to the facts of the present case and to find favour with the petitioner. cannot be readily accepted. The statement of the daughter of the petitioner cannot be ignored. It would be premature to hold that there was no case made out of constant harassment and ill- treatment by the petitioner, which drove the deceased to commit suicide. The burden of establishing the same however, rests on the prosecution. It is quite possible that the prosecution ma)’ not be in a position to establish the same ultimately, but. on this ground alone, it cannot be said that the petitioner ought to be discharged in respect of the offence punishable under Section 306 of the IPC. The fact that the 12

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deceased was no longer capable of bearing children and the lbct that the petitioner had nnsferred his ancestral properties in her favour would not lead to the presumption that he was not given to harassing the deceased and the several other contentions urged need not be met by this court since it would unnecessarily prejudice the trial and the petitioner himself: if these observations are to be made and even if with a rider that they shall not influence the decision of the trial court, it may in effect do so. Therefore, it is sufficient, if on the above reasoning that the petitioner having been charged with the otknces punishable under Sections 498A and 306 of the IPC and the circumstance that there may be a prima fade case atleast punishable under Section 498A of the IPC, which is yet to he established at the trial. The prosecution also seeking to establish a case punishable under Section 306 IPC is a burden entirely cast on the prosecution. Therefore. there will he no prejudice caused to the petitioner merely because the prosecution has invoked Section 306 of the IPC. The petitioner S

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would not gain any large advantage even if he is discharged under Section 306 of the IPC. for he would yet have to stand trial for an offence under Section 498A of the IPC and in that view of the matter, this court does not find any reason to interfere with the impugned order. Accordingly. the petition is rejected.

Sd/a

JUDGE I

nv

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