IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON' BLE MRS. JUSTICE RATHNAKALA WRIT PETITION NO OF 2015

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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7 TH DAY OF DECEMBER, 2015 BEFORE THE HON' BLE MRS. JUSTICE RATHNAKALA WRIT PETITION NO OF 2015 BETWEEN SMT. SWATI PAI, W/O MR. PRAVEEN K. AGED ABOUT 39 YEARS, D/O M.S. PATIL, RESIDENT OF NO.B007, OASIS NINE, 7 TH CROSS, 1 ST MAIN, ISRO LAYOUT, BANGALORE (BY SRI. ARUNA SHYAM M., ADV.)...PETITIONER AND 1. THE STATE OF KARNATAKA, BY CHANNAMMANAKERU ACHUKATTU POLICE, BANASHANKARI SUB-DIVISION, BANGALORE CITY REP. BY THE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE SRI. KRISHNA MURTHY. S/ LATE CHOUDAPPA, AGED 66 YEARS, NO.35, 3 RD MAIN, CHANNAMMANKERE ACHUKATTU PARK, B.S.K., 3 RD STAGE, BANGALORE

2 2...RESPONDENTS (SRI. B. VISWESWARAIAH, HCGP FOR R1; SRI. M.P. SRIKANTH, FOR R2, ADV.) THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA, R/W SECTION 482 OF THE CRIMINAL PROCEDURE CODE, 1973 PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN CC NO.14606/2015 ON THE FILE OF II ADDITIONAL METROPOLITAN MAGISTRATE, NEAR BY NRUPATUNGA ROAD, BANGALORE CITY, INCLUDING THE FIR DATED CHARGE SHEET AND COMPLAINT DATED IN CRIME NO.185/2014 REGISTERED BY THE R1- POLICE FOR THE OFFENCE PUNISHABLE UNDER SECTION 306 OF IPC (VIDE ANNEX-A, B, C & D) RESPECTIVELY. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 24/11/2015 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER Petitioner herein is charge sheeted in respect of the offence punishable under Section 306 of IPC. She is the wife of deceased Praveen K, who committed a suicide on in the morning hours, in his flat by hanging himself. 2. The case of the prosecution is, the petitioner and the deceased after a courtship, married in the year 2006 and were residing in a flat at ISRO layout, Bengaluru. The deceased purchased another apartment at ISRO layout during January, 2013 and started residing therein. The parents of the petitioner

3 3 started living with her which was not to the liking of the deceased. The petitioner threatened him of throwing out of the matrimonial home and to initiate a criminal case against him on the allegation of dowry harassment. She accorded him that he is useless, even if he alive or dead. She necked him out of the matrimonial house on On , the deceased went to the house of the petitioner to meet his girl child, but she did not allow him to meet the child, instead she insulted him to go and die elsewhere. Thereafter, she lodged a complaint against him on before the local police station which came to be registered in NCR No.150/2014. In this regard, they recorded the statement of the deceased. That apart, the petitioner filed a divorce petition before the Family Court. In the early hours of , the deceased hanged himself in his bedroom and left a death note in his laptop accusing the petitioner and her family members of atrocious behaviour. 3. Sri. Aruna Shyam M, learned counsel for the petitioner submits that actually it was the petitioner, who was harassed by the deceased. She was treated in the hospital for

4 4 the injuries suffered by her by the assault caused by the deceased. However, she did not choose to file a complaint against him, hoping that things may improve. But he did not correct himself, perpetuated harassment on his wife, that necessitated her to lodge a complaint before the Police, where he undertook not to continue harassment on his wife and family members anymore and also admitted that he is not harassed by his wife and her family members. After suffering enough at the hands of the deceased, finally, the petitioner filed a divorce petition before the Family Court on the ground of cruelty. Notice was issued and service was awaited in the MC case. As on the date of the incident, he was residing with his parents. The laptop in which the deceased left so called death note is not seized during spot mahazar by the I.O. Father of the deceased produced two laptops and one mobile on i.e. 3 days from the incident. As per the statement of the witnesses, password of the laptop was broke open by hacking with the assistance of a private technician. She along with her daughter filed a petition under Section 372 of Indian Succession Act, for succession certificate. Petition is contested by her parents-inlaw. Her father-in-law filed a civil suit seeking declaration and

5 5 possession of property belonging to the petitioner and her deceased husband. Death note on which reliance is placed by the prosecution is suspicious and doubtful. As per FSL report, after the death of her husband on , laptop is used by somebody before it was seized by police and certain pendrives and software were inserted in between time. The contents of the death note fail to constitute the ingredients of Section 306 of IPC. There is no worth believing incriminating evidence against her on record. Under such circumstances, the charge sheet is liable to be quashed. 4. In reply, Sri. M.P. Srikanth, learned counsel for respondent No.2 submits that the accused-wife by her willful conduct created an atmosphere which drove the deceased to commit a suicide. Genuineness of the death note left behind by the deceased in his laptop cannot be doubted. It is only the trial Court which has to return its finding about admissibility or otherwise of the death note. The constitutional bench of the Apex Court in a reference case reported in (1996) 2 SCC 648, in the case of Smt. Gian Kaur Vs. State of Punjab, went in detail about the constitutionality of offence under Section 309

6 6 of IPC. In an earlier judgment, the Apex Court [(1994) 3 SCC 394] had declared the Section 309 of IPC unconstitutional, but on survey of the earlier judgments and also considering the provisions of 306 and 309 of IPC, upheld the constitutionality of both Section 306 and 309 of IPC. This Court in exercises its extraordinary jurisdiction under Section 482 of Cr.P.C. only in exceptional cases. When there is prima facie material, from charge sheet papers petitioner has to face trial and case cannot be quashed. Except the family members, there can be no other outside witnesses to the incident that transpired between the accused and deceased. At this stage, the court cannot form an opinion on the merits of the case and the petition is liable to be dismissed. 5. In the light of the above rival submissions, now let us have a view on the charge sheet materials. The complaint came to be lodged by father of the deceased on at a.m. and the case was registered against accused, her father and her sister. However, after investigation, charge sheet has been filed against the petitioner only. Two days after registration of the complaint, further statement of the

7 7 complainant is recorded on , wherein he stated that he got opened the laptop of the deceased on through a technician, found the death note attributing the responsibility of the suicide against the wife and in-laws. Said laptop is seized under mahazar and forensic report is collected in this regard. The complainant witnesses cited for the prosecution witnesses are CW1-Complainant, CW2-wife of CW1, CW3- son of the complainant, CW4-brother of the complainant and CW5- P. Suresh, son of Shankaranaryana Hande. No separate statement of CW5 under Section 161 of Cr.P.C. is recorded; though he claims to have personal knowledge of the dispute between the spouse, he is a mahazar witness. 6. Section 306 of IPC vexed in this proceeding reads thus: 306. Abetment of Suicide:- 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. thus: Abetment is contemplated under Section 107 of IPC,

8 Abetment of a thing:- A person abets the doing of a thing, who- Firstly- Instigates any persons to do that thing; or Secondly-Engages with one more other person or persons takes place in pursuance 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. 7. In the case of S.S. Chheena Vs. Vijay Kumar Mahajan, reported in 2010 (12) SCC 190, the Apex Court has elaborated Abetment at para-13 as under: 13. ABETMENT involves a mental process of instigating a person or intentionally aiding a person in going of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 of 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 that act must have been intended to push the deceased into such a position that he committed suicide.

9 9 8. In the case of Ramesh Kumar Vs. State of Chattisgarh, reported in (2001) 9 SCC 618, the larger bench of the Apex Court defined the meaning of Instigation at para-20 of its judgment as follows: 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. 9. In the case of Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) reported in (2009) 16 SCC 605, the Apex Court observed that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each

10 10 person s suicidability pattern is different from the other. 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. 10. Accepting the entire case of the prosecution including the death note alleged to have been left behind by the deceased, then also the material on record fail to make out a case under Section 306 of IPC. Veracity of the death note which is intercepted before it was seized under the mahazar, cannot be accepted as genuine at this stage. As shown from the prosecution material, six months prior to the alleged incident, wife had gone to the hospital with injuries and had given history that the injuries are caused due to assault by her husband. It is to be appreciated that she has not filed any complaint at that point of time. Spouses were residing separately. That on in respect of an untoward incident, the spouse were before the police and the deceased is said to have under taken not to harass his wife and her parents and the child. Going by the death note, the deceased was under the impression that he

11 11 is implicated in a domestic violence case, but no such material is collected by the I.O. showing that the wife had filed any complaint under the provision of Protection of Women from Domestic Violence Act, She had filed a petition for divorce on the ground of cruelty. Even otherwise the tone of death note probablises that the author was frustrated by the attitude of his wife and her sister. If the victim is a person of hyper sensitiveness to petulance, discord and differences which could happen in day-to-day life of common people, then liability of his suicide cannot be attributed to others. 11. There shall be intentional indulgence on the part of the accused person to instigate the commission of suicide, or there shall be intentional assistance by the accused for the commission of suicide, then it can be said an act of abetment of suicidal death and the accused can be said to have committed the offence under Section 306 of IPC. But the statement of the witnesses i.e. CWs1 to 4 all being his own kith and kin is omnibus in nature and fails to make out a case of abetment against the accused. No material is available to have a view of thinking pattern of the deceased at the relevant point of time.

12 12 The properties of human mind is amazing and innumerable. In the absence of any evidentiary material about petitioner s active role in the suicide of her husband, the evidence collected being insufficient to understand his psyche, it is dangerous to attribute the vicarious liability of the suicide on the accused. Sending the petitioner to trial, on such a hazy evidence, is nothing but abuse process of law and the proceeding deserves to be quashed in exercising the jurisdiction of this Court under Section 482 of Cr.P.C. Petition is allowed. The entire proceedings in CC No.14606/2015 on the file of II Additional Metropolitan Magistrate, Nrupatunga Road, Bangalore City, including the FIR, Charge sheet and complaint in Crime No.185/2014 registered by the R1- Police for the offence punishable under Section 306 of IPC, is quashed. JTR Sd/- JUDGE

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