1 of 20 S.C. NO.178/2018
IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE :: HYDERABAD
Dated this the 25th day of April, 2024
Present: Smt. S. Premavathi, Metropolitan Sessions Judge, Hyderabad.
SESSIONS CASE NO. 178/2018
( PRC No. 03/2016 on the file of Special Judicial First Class Magistrate For Excise
Cases, Hyderabad )
Committed bySmt. G. Sabitha, Special Judicial First Class Magistrate For Excise Cases, Hyderabad.
Crime Number & Police StationCrime No. 05/2014 of PS Bhadurpura, Hyderabad.
Name and description of the AccusedOm Prakash @ Laalu, S/o. Manik Rao, Aged 23 years, occupation: Vegetable Vendor, N/o. Humnabad, Bidar, Karnataka State.
Name and description of theThe State of Telangana, Through the Sub- ComplainantInspector of Police, PS. Bahadurpura, Hyderabad.
Prosecution conducted bySmt. P. Shailaja, Public Prosecutor of this Court.
Accused defended bySmt. H. Kavitha, Advocate for the Accused
Offence ChargedUnder Section 494, 495, 498 (A), 306 IPC
Plea of the accusedNot guilty
Finding of the Court The accused is found not guilty of the charge under sections 494,495,498(A) and 306 IPC. Hence, he is acquitted under Section 235(1) of Cr.P.C. for the said offences.
ResultIn the result, the accused is found not guilty of the charge under sections 494,495,498(A) and 306 IPC. Hence, he is acquitted under Section 235(1) of Cr.P.C. for the said offences. The bail bonds of the accused shall be in force for a period of six months as per section 437(A) of CrPC. MOs 1 to 4 shall be destroyed after expiry of appeal time. The unmarked case property if any shall be destroyed after expiry of appeal time.
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: : J U D G M E N T : :
1.This is a case of accused causing cruelty to the deceased in her marital life, concealing his former marriage, performing another marriage during the lifetime of deceased and abating the deceased to commit suicide.
2.On 6-1-2014 police received telephonic information from Osmania
General Hospital, Hyderabad informing that patient by name
Smt.Harathi(hereafter referred as deceased) W/o Om Prakash @ Laalu(hereafter referred as accused) admitted at OGH, Hyderabad, alleged to have met with burn injuries LW14/PC No.5375/Hussainialam PS was directed to OGH for enquiry and record the statement of injured. LW14 proceeded to the Osmania General
Hospital, Hyderabad (for short hereafter it is referred to as ‘OGH’, Hyderabad) at 21:30 hours, recorded the statement of the injured and returned to the Police
Station.
3.On the strength of statement of the injured, LW17 registered a case in a crime no.05/2014 under Women Burn and investigated the case.
4.During course of investigation, LW17 received information that injured succumbed to burnt injuries on 09.01.2014 at 6:30 hours at OGH,
Hyderabad. As such, Section of Law was altered from Woman Burn head to
Sections 494,495,498-A and 306 of IPC. Alteration Memo was filed before the
Hon’ble Court and concerned Officers. After completion of investigation, LW17
laid charge sheet against the accused for the above said offences.
5.The case was taken on file by learned Special JFCM, Hyderabad for the said offences against the accused and committed the case to the Hon’ble
Metropolitan Sessions Judge, Hyderabad, under PRC No.03 of 2016
dt:21.09.2017. On receipt of the same, the Hon’ble Metropolitan Sessions Judge,
has took the cognizance for the said offences against the accused and allotted
S.C.No.178 of 2018.
6.On appearance of accused, upon hearing, charge under Sections 494,495,498-A and Sec.306 of IPC are framed, read over and explained to the accused for which, the accused pleaded not guilty and claimed to be tried.
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Accordingly, trial was conducted.
7.Prosecution has examined PWs1 to 9. Exs.P1 to P7 and Mos 1 to 4 are marked on its behalf. The learned Public Prosecutor has given up the evidence of LWs 4, 6, 7, 10, 15 and 16. In view of the report filed by the prosecution that whereabouts of LW6 are not known, as such the evidence of
LW6/Smt.Sujatha, W/o Om Prakash is closed. It is reported that LW1 and LW2 are died and report filed to that effect along with unserved summons.
8.After completion of prosecution side evidence, the accused is examined under Section 313 Cr.P.C. Incriminating material in the prosecution evidence is confronted to him. He denied, stated the same to be false and reported no defence evidence.
9.Heard the Learned Public Prosecutor and the learned counsel for the accused. Perused the record.
10.Now the points for determination are that
i) whether the prosecution is abble to prove that the accused is guilty for the offence under sections 494 and 495 of IPC?
ii) Whether the prosecution is able to prove that death of the deceased was due to suicide?
iii) Whether the prosecution is able to prove that the accused is guilty for the offence under section 306 of IPC?
iv) Whether the prosecution is able to prove that the accused is guilty for the offence under section 498-A of IPC ?”
v) To what finding?
11.Prosecution case in nutshell is that in the year 2011, the marriage of the deceased was performed with the accused. Soon after the marriage, she joined the accused to lead conjugal life at Humnabad, Karnataka State. For one month period she was looked after well and from the second month of her marriage accused started harassing, abusing and beating the deceased even on petty issues. As such the deceased was brought to her mother’s house and was staying with them.
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12. While the matter stood thus, the deceased came to know that accused was already married prior to marrying her. Further, she came to know that he married another woman subsequent to marrying her. These acts of the accused led the deceased went into depression ultimately driving her to commit suicide. As such, on 06.01.2014, at about 13:00 hours, she poured kerosene on her person and set herself on fire and immediately she was shifted to OGH for treatment. Yet while undergoing treatment she succumbed to burn injuries on 9.1.2014 in OGH, Hyderabad.
Examination-in-Chief of Prosecution witnesses:
13.PW1- Elder sister & PW2- younger brother of the deceased:-
LW2/Kalavathi is mother of PW1, PW2 & the deceased. She has some more children also.She died in the year 2019. In the year 2011, marriage of the deceased was performed with the accused. After the marriage, the deceased joined her matrimonial home at Humnabad, Bidar, Karnataka State. The accused used to pickup quarrels frequently with the deceased and he used to consume alcohol and used to harass the deceased physically. Therefore, after six months of the marriage the deceased was taken back to her parent’s house at SP Nagar,
Kishanbagh, Hyderabad.
14. Further, the accused used to harass his first wife as such she left his company. The deceased was second wife to the accused and for some period, the deceased lived happily with her parents subsequent she taken back to
Hyderabad from Karnataka State but when she came to know that accused married another woman subsequent to marry her, on that she felt depression and committed suicide by pouring kerosene and setting herself on fire in the bathroom at her parents house on 06.01.2014 ,as such, she was sent to the OGH,
Hyderabad and while she was undergoing treatment on 09.01.2014, she succumbed to burn injuries.
15.PW3 is the panch witness for scene of offence. He is a driver by profession. He reside in last point of the lane whereas deceased resides at the starting point of the same lane situated at S.P.Nagar, M.N.Pura, Kishanbagh. In 5 of 20 S.C. NO.178/2018 his presence MOs 1 to 4 are seized from the scene of offence. Ex.P1 is rough sketch of the scene of offence.
16.PW4 is the panch witness for inquest panchanama of the deceased:
She is resident of SP Nagar, Hyderabad and neighbour of the deceased.
Deceased used to reside by paying rent. As the Bahadurpura Police called her, she went to OGH to attend inquest proceedings and she saw the dead body having burn injuries and in her presence and presence of LW10 inquest over the dead body is conducted. They opined the death of deceased was due to self burn injuries. Ex.P2 inquest panchanama dt:9.1.2014.
17.PW5 police constable of Bahadurpura PS. On receipt of information through phone call from OGH on 6.1.2014 to record the statement of the injured,
Head Constable Mallesh informed the same to PW5. On receiving such information from Head Constable he proceeded to the OGH and recorded her statement and obtained her thumb impression on the statement. Ex.P3 is the statement of the LW1/deceased.
18.PW6 is the then Ist Metropolitan Magistrate, Hyderabad. The learned Magistrate recorded the dying declaration of the deceased as he received requisition from ASI of Police, Bahadurpura PS on 6.1.2014 at 8.10 pm.
Ex.P4 is the statement of the declarant.
19.PW7, the then Dy. Tahasildar in the office of Revenue Division,
Hyderabad. He conducted inquest over the dead body of the deceased
Smt.Harathi on 9.1.2014 on receipt of requisition from SHO, Bahadurpura PS.
He examined the dead body and conducted panchanama/Ex.P2 in the presence of PW4, LW10 and also blood relatives of the deceased at OGH, Hyderabad. The opinion of inquest panchayatdars is that the accused tortured and harassed the deceased as such she came to her parents house and residing with them since 2 ½ years and she came to know that the accused already married another lady as such in a depression mood she committed suicide by setting herself on fire.
20.PW8 Professor and Head of the Department of Forensic Medicine,
Osmania College: PW8 deposed that he knows Dr.Devaraju since 2002 therefore 6 of 20 S.C. NO.178/2018 he has acquaintance with the signature of Dr.G.Devaraju. He deposed that
Dr.Devaraju died in the year 2002 and the signature appended in PME of the deceased is that of Dr.G.Devaraju.
21. PW8 deposed that on 9.1.2014 Dr.G.Deva Raju received requisition from Dy. Tahasildar, Office of RDO, Hyderabad to conduct Postmortem
Examination over the dead body of the deceased and during PME between 3.00
PM to 4.00 PM, on external examination, he noticed the antemortem inflicted surface burns on face, neck, patchy areas on trunk, patchy areas on upper limbs and patchy areas on both lower limbs etc., further, on internal examination he noticed all the organs were congested and stomach contained about 200 CC of greenish yellow liquid with mucosal erosions and no suspicious smell. He deposed that Dr.Devaraju gave his opinion ‘due to burns and their complications” the death was occurred. The approximate time of death is about 6 to 12 years prior to PME. Dr.Devaraju issued. Ex.P5 Post Mortum Examination Report.
22.PW9, the then SI of Police PS Bahadurpura:-
On 6.1.2014 at 2130 hours he received a statement/Ex.P3 of
LW1/Deceased. Based on Ex.P3 he registered a case in Cr.No.5/2014 under woman burns and issued FIR. Ex.P6 FIR. Then he visited the OGH, Hyderabad and recorded the statement of injured. He sent requisition to PW6 to record the statement of LW1. PW9 visited the scene of offence at SP Nagar, Nandimuslai guda and secured the panch witness/PW3 and LW7, observed the scene of offence, drafted scene of offence panchanama and drawn rough sketch of the scene, seized MOs 1 to 4 from the scene of offence.
23.On 9.1.2014 at 6.30 am he filed Section alteration memo altering section of law from woman burns head to sections 306, 498-A, 494 and 495 of
IPC and got altered section of law as he has received information from OGH that the injured succumbed to burn injuries. He sent requisition to PW7 to conduct inquest over the dead body and after the inquest proceedings, he forwarded the dead body for PME. He recorded the statements of LW2, LW6, PW1 and PW2.
LW2 mother of the deceased. PW9 further deposed that on 10.3.2014, the 7 of 20 S.C. NO.178/2018 accused was apprehended from Humnabad, Karnataka State and after following arrest formalities he effected the arrest of the accused and produced before the court for judicial remand. After completion of investigation, he laid charge sheet against the accused. Ex.P7 Section Alteration Memo.
Coming to the discussion:-
POINT NO.1:-
24.It is the allegation of the prosecution that accused committed the offence of Bigamy by marrying to another woman during the life time of the deceased who was the wife of the accused. It is further allegation of the prosecution that the accused concealed his former marriage prior to marry the deceased.
25.The allegation as to the concealment of former marriage of the accused appears in statement of the deceased under Ex.P3 and Ex.P4 recorded by PW5 & PW6 respectively.
26.It is the evidence of PW1 that the accused performed another marriage subsequent to marrying the deceased and similar is the evidence of
PW2. The PW9, who is the investigating officer failed to collect material evidence giving details as to the former marriage of the accused with reference to the woman that accused is alleged to have married earlier. Similarly, there appears no material evidence collected by PW9 to show that accused married another woman subsequent to the marriage of the deceased with him.
27.In the cross-examination of PW1 and PW2 it is elicited that these witnesses do not have personal knowledge of prior or subsequent marriage of the deceased after he married to the deceased. The evidence of PW1 and Pw2 in so far as deposing that accused was married earlier prior to his marriage with the deceased, and subsequent marriage with another woman/LW6 after marrying the deceased fall under ‘hearsay’ category which is not admissible in evidence.
28. The Supreme Court in the case of Bhaurao Shankar Lokhande v.
State of Maharastra reported in 1965 AIR 1564, held that the marriage between two Hindus is void in view of Section 17, if two conditions are satisfied: Ii) the 8 of 20 S.C. NO.178/2018 marriage is solemnized after the commencment of the Act;(ii) at the date of such marriage, either party had a spouse living. It is further held that the word ‘solemnize’ means, in connection with the marriage, ‘to celebrate the marriage with proper ceremonies and in due form”, according to the Shorter Oxford
Dictionary. It follows, therefore, that unless the marriage is “celebrated or performed with proper ceremonies and due form:, it cannot be said to be ‘solemized’. It is therefore, essential, for the purpose of Section 17 of the Act, that the marriage to which Section 494 IPC applies on account of the provisions of the
Act, should have been celebrated with proper ceremonies and in due form.
Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom.
29. Thus, the legal position in order to prove an offence of bigamy under
Section 494 IPC are: firstly, the factum of the second marriage has to be established and proved like any other fact with acceptable legal evidence; secondly, it has to be proved that the said second marriage was solemnized in due form as per the custom and ceremonies prevailing in the said community; and thirdly, it has to be proved that both i.e., the first marriage and the second marriage are valid marriages, soleminzed as per the ceremonies prevailing in the community.
30. In the present case, the date of marriage, place of marriage and essential ceremonies said to have been observed at the time of the alleged marriage are not mentioned in the charge-sheet. Therefore, there is no valid evidence in proof of the factum of second marriage or former marriage and the evidence collected by the Investigating Officer if any during the course of investigation is not sufficient to prove the second marriage or former and the offence of bigamy punishable under section 494 IPC and offence punishable under Section 495 IPC could not be proved by the prosecution. Thus, first point is answered against the prosecution.
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POINT NO.2:-
31.The deceased committed suicide by burning her body with fire. The deceased while undergoing treatment succumbed to burn injuries. The inquest under Ex.P2 and the evidence of PW7 corroborates with the evidence of panch witness examined as PW4 as to the inquest panchanama proceedings of the dead body.
32.The PME marked under Ex.P5 coupled with the oral evidence of
PW8 corroborates with each other. It is the evidence of PW8 that as per the opinion of the Doctor who conducted PME death of the deceased is due to “burns with their complications”.
33.It is the evidence of PW1 and PW2 that the deceased committed suicide by burning herself. The line of evidence of PW9 also the same that deceased committed suicide. The accused is not disputing the fact that the death of the deceased is suicide. The material objects MO1 to MO4 are seized from the scene of offence in the presence of panch witness/PW3 is also remained intact even after he is cross-examined. Hence with the evidence on record, as referred to above the prosecution is able to prove that the death of the deceased was caused due to suicide. Therefore, second point is answered in favour of the prosecution.
POINT No.3:-
34.It is the allegation of the prosecution that accused abetted the deceased in committing suicide due to the acts harassment and cruelty committed by him during the period when the deceased lived with him in the year 2011. It is also allegation of the prosecution that the harassment of the deceased has been continued in refusing to take the deceased to lead conjugal life and concealment of his former marriage. The accused is alleged to have performed another marriage while the deceased stayed at her parents house. All these circumstances and acts of the accused lead the deceased to go into the depression and as a result, the deceased committed suicide by pouring kerosene on her body and set herself ablazed.
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35.To support its version, the prosecution primarily relies on Ex.P3 given to PW5. In statement the deceased stated that she stayed with the accused for a month and from second month of her marriage, she was subjected to harassment by the accused even on petty issues. As such, she left the matrimonial home and stayed with her mother. While she was staying with her mother she came to know her husband was already married and the same was came to her knowledge later as such she decided to commit suicide. Hence, on 6.1.2014, she purchased kerosene in Kishan Bagh and came to SP Nagar and went into the bathroom and poured kerosene on her person and lit fire, however, she could not bear the pain as such she herself poured water on her person and
PW1 shifted her to OGH by calling 108 Ambulance.
36.Secondly the prosecution relied on Ex.P4 recorded by PW6 who is
Judicial Magistrate. Therefore, there appears two dying declarations one is under
Ex.P3 and the other one is under Ex.P4.
37.In the cross-examination of PW6, there appears no circumstances brought on record to suggest that the procedure contemplated to record the dying declaration are not followed or that there was any circumstances such as tutoring of the deceased prior to her statement under Ex.P4 is recorded. Similarly in the cross-examination of PW5 no circumstances are brought on record to doubt the veracity of the statement given by deceased under Ex.P3. However, the statements of the deceased in both dying declarations speak of the fact that the deceased committed suicide due to the acts of the accused during the course of marital life of deceased & accused and accused married prior to marrying deceased and performed another marriage subsequent to the marriage of the deceased with accused. Therefore, the evidence of PW6 and PW5 and Ex.P4 and Ex.P3 are required to be considered by the court in order to appreciate as to whether the elements under section 306 IPC are attracted.
38. The statement under Ex.P4 shows that after marriage of the deceased with the accused, only one month he treated her with love and affection, thereafter he started to harass her as his like. After one month of the 11 of 20 S.C. NO.178/2018 marriage, once he beat with iron rod on her head and caused her fell down, again another day, he beat on the ear and blood came out from the ear and after beating her he detained her in a room and threatened her to kill her. On one occasion, the deceased put a poison in the tea and forced her to drink poisoned tea, every day he used to come to the house inebriated condition and torture.
Further, she stated before getting her as a wife the accused already got married with another lady and she left him due to the harassment caused by him upon her. Due to the harassment and torture caused by the accused she informed the same to her parents about the behaviour of the accused and on observing the cruel acts of the accused her father was died to heart attack. So by remembering all these things while she was alone in the house, on 6.1.2014, at about 2.00 PM, she decided to commit suicide and poured kerosene upon her and lit the fire with match stick and due to the flames she could not control herself and came out from the house and poured the water from the tub and herself tried to extinguish the flames. Thereafter, her mother and her sister brought her to the hospital for treatment.
39.Now, the question is whether on considering the Ex.P4 essential elements under section 306 IPC appears to be have been attracted?
40.The elements under section 306 IPC are observed in case law between S.S.Chheena Vs. Vijay Kumar Mahajan and another reported in (2010) 12 SCC 190 of Hon’ble Supreme Court it is held that, “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. 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 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.”
41.In M.Arjunan Vs. State represented by Inspector of Police reported in 2019 (3) SCC 315, the Hon’ble Apex Court observed the elements of section 306 12 of 20 S.C. NO.178/2018
IPC as under:- “The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 IPC.”
42. In order to convict the accused under section 306 IPC the state of mind to commit a particular crime must be visible with regard to determining the culpability. with regard to the same, the Hon’ble Supreme Court in Ude Singh and others Vs. State of Haryana reported in (2019) 17 SCC 301 observed as under:
“16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above- referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to 13 of 20 S.C. NO.178/2018 commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.
43. In the present case, on perusal of Ex.P4, it is to be understand that the deceased committed suicide upon felling deprived with the acts of the accused in harassing her during her matrimonial life and marrying another woman by not taking her back for conjugal life. The reading of Ex.P4 does not show mensria on the part of the accused to commit an offence of section 306 of IPC.
There appears no positive acts either direct/indirect intended to the deceased to commit suicide. At this stage, it is necessary to take as to the proximity between the offending acts of the accused and the time of occurrence of suicide by the deceased. In the present case, it is admitted fact that the deceased married the accused in the year 2011. There were marital life for 6 months and the deceased was taken back by her parents and she never lead marital life with the accused till she commit suicide. Therefore, these admitted facts gives an understanding that the accused and deceased did not live together till the date of offence after 6 months of their marriage. For the offence of abetment to commit suicide, there must be proximate positive act of instigation by the accused that driven to the deceased to commit suicide.
44.The understanding need to be drawn out with reference to the case laws above referred is that mere allegation of harassment of the deceased by the 14 of 20 S.C. NO.178/2018 accused could not sufficient unless there be such action on the part of the accused which compels the person to commit suicide and such offending actions ought to be proximate to the time of the occurrence of the suicide. The reference to the point of time of offending acts of the accused and occurrence of suicide by the deceased is essential to analyze as to whether the deceased has time to reflect on her thought of committing suicide from the point of time of offending acts of the accused.
45. In the present case, there appears to be long gap between the offending acts of the accused stated to have occurred in 2011 and the occurrence of suicide committed by the deceased was occurred in the year 2014. Thus, there appears no proximity with reference to the point of time between the offending acts of the accused and the occurrence of suicide committed by the deceased.
46.Further more, it is observed from the case between Gurucharan
Singh v. State of Punjab(2017) 1 SCC 433 of the Hon’ble Supreme Court as to basic elements of section 306 of IPC that “The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide.”
47. In the present case on reading of Ex.P4, there appears no positive acts committed by the accused that continued to instigate or aid the deceased to commit suicide with no other option left to her due to the acts of the accused but to commit suicide. Even if the statement under Ex.P4 is consider the question would arise whether it is sufficient to convict the accused under section 306 IPC.
Undoubtedly the deceased in the case on hand went into depression due to her marital life being disturbed with the acts of the accused. But, the question is to 15 of 20 S.C. NO.178/2018 examine as to whether the acts of the accused were committed with an intention to compel the deceased to commit suicide. As noted above, there appears long gap between the point of time when the deceased and accused lived together and the point of time the deceased committing suicide. As such there is no proximity between the offending acts of the accused and to the date of impugned occurance. In such circumstances, it can not be stated that the accused carried an intention to harass the deceased compelling her to commit suicide with no option left to her.
48.Therefore, for the discussion as taken above, it is required to be held that on consideration of statement of the deceased under Ex.P4 and Ex.P3 the elements of offence under section 306 IPC as to the positive act of instigation of the accused carrying intention to compel the deceased to commit suicide is not made out. Hence, the point is answered against the prosecution.
POINT NO.4:-
49.The learned counsel for the accused argued that deceased committed suicide as she was not allowed by her parents to live conjugal life with the accused. The learned counsel referred to the evidence of PW1 in order to contend that parents of the deceased asked the accused to settle at Hyderabad which was refused by the accused. Therefore, accused have been falsely implicated on the allegation that accused harassed the deceased in her marital life by considering his prior marriage and performed another marriage during the life time of the deceased.
50. The learned counsel would refer to the FIR (Ex.P6) which was registered under head of ‘woman burns’ and submit that had statement under
Ex.P3 be recorded prior to registration of FIR, the registration of the crime would not have been under woman burns head. These circumstances indicate the fact that after registration of crime, the facts were manipulated and deceased was tutored to give her statement.
51.It is the settled law that dying declaration statement is required to be considered only to prove the facts relating to the cause of death or circumstances 16 of 20 S.C. NO.178/2018 leading to cause of death. The statement cannot be used to prove the facts that are unconnected to the facts relating to cause of death or circumstances relating to the death. Therefore, the statement under Ex.P3 and P4 given by the deceased considering the facts relating to harassment of the accused in her marital life cannot be considered. This brings to examine into the other material evidence produced by the prosecution. It is the evidence of PW1 & PW2 who are sister and younger brother that speak of facts relating to harassment and cruelty caused by the accused towards the deceased in her marital life. The reading of evidence of
PW1 & Pw2 gives an understanding that these witnesses does not have personal knowledge as to the cruelty sustained by the deceased at the hands of the accused. As per their evidence they came to know about the harassment of the accused through the deceased. Thus, the evidence of PW1 & PW2 fall under the hearsay category in so far facts relating to cruelty suffered by the deceased are concerned and same is not admissible evidence.
52. The other evidence of the prosecution does not speak about the cruelty of the accused caused to the deceased. In the cross-examination of PW9 it is elicited that statement of neighbour where the accused and deceased lived was not recorded. This elicitation shows that PW9 failed to collect relevant evidence such as neighbour of the accused and deceased, elders who may have tried for conciliation marital dispute of accused and deceased or any other witnesses who had personal knowledge about the marital disputes of the accused and deceased while they lived together for a period of six months in the year 2011.
53.Here, it is required to observe that the burden of proof always lies on the prosecution to prove the charges framed against the accused by adducing legal, admissible and cogent evidence to to prove the allegations. In the present case as discussed above except the testimony of PW1 & PW2 which is hearsay in nature no other legally or admissible evidence is adduced as to the cruelty/harassment towards the deceased.
54. Admittedly the accused and deceased are residing separately since 2 ½ years. The material on record does not show that attempts are made for 17 of 20 S.C. NO.178/2018 reconciliation of marital dispute of accused and deceased through intervention of elders. It is not the evidence of prosecution that such efforts of conciliation are made in the interregnum period of 2 ½ years, in spite of it, the accused did not allow the deceased to his fold. There appears no material showing any circumstances that there was any communication between deceased and the accused from the point of time of she residing with her mother till the point of time of deceased committing suicide in the year 2014.
55. It is not the prosecution version and evidence that accused necked out the deceased. It is the evidence that deceased was brought to Hyderabad from
Karnataka by her parents or she came herself and staying with her parents. The couple lived separately since long period without justifiable cause which could be a ground for desertion for either of the couple but it is not a ground for cruelty/harassment on part of either of the couple. Here notable point in the evidence of PW1 is that deceased was living happily with her parents after she was brought from Karnataka State but when she came to know that accused performed another marriage she felt depressed and committed suicide. Her evidence suggests the cause for suicide is 3rd marriage to the accused. PW9 says that he did not collect any evidence either in oral or documentary as to the number of marriages of the accused. Prosecution did not examine LW6 who is stated to be another wife of the accused. Therefore, there is no material on record to establish so called 3rd marriage to the accused.
56. Thus, on examination of material on record there appears probable doubt as to accused causing cruelty to the deceased that ultimately led her to commit suicide. This is so for the fact that accused and deceased living separately for nearing 21’2 years. As such the material on record show that prosecution failed to prove the guilt of the accused for the offence punishable under section 498-A IPC on the principle of ‘beyond reasonable doubt’.
Accordingly, point is answered against the prosecution.
18 of 20 S.C. NO.178/2018
Conclusion:
57. Whenever , an information as to the cognizable offence is received, the police has to register the case and proceed for investigation. In the present case, the evidence shows that head constable received information from OGH as to the admission of injured with burn injuries and informed PW5 to record statement. Ex.P6 shows that information as to the admission of injured in the hospital is received at 9.30 P.M. This circumstance show that without registration of FIR or at least without entry in General Dairy, the statement of the victim is recorded.
58. Further, the statement of deceased as in Ex.P3 show that elements u/s.495 and 498-A IPC are attracted however FIR was registered under Women
Burn Head. There appears no explanation by PW9 who registered the crime on the statement of Ex.P3 as to reason for registering case under Women Burns head when the material under Ex.P3 show that elements of offence punishable under Section 495 and 498-A IPC. Significantly, the statement of LW1/deceased alleged to have been recorded by PW9 is not brought on record. These circumstances analyzed from defence view would indicate that there is lack of fairness in the investigation.
59. Notably, PW9 deposed that he prepared dying declaration requisition under Ex.P4 at police station and sent it to the learned Magistrate/PW6 at about 6.30 p.m. Where as, it is evidence of PW6 that he received requisition at about 8.00 p.m., Anyhow, this piece of PW9 evidence goes to show that prior to FIR investigation commenced. This circumstance give reason to believe that there was every scope for manipulation of facts prior to registration of FIR.
60. The Hon’ble Supreme Court in Rafiq Ahmad v. State of U.P.(2011)8
SCC 300 observed and held that prejudice to an accused or failure of justice has to be examined with reference to (i) right to fair trial (ii) presumption of innocence until pronouncement of guilt and (iii) the standards of proof. It is observed in the said decision that whenever a plea of prejudice is raised by the accused, it must be examined with reference to the above rights and safeguards, as it is the 19 of 20 S.C. NO.178/2018 violation of these rights alone that may result in the weakening of the case of the prosecution and benefit to the accused in accordance with law.
61. In the present case, the material on record suggest the investigation did not went in fair line and as per the procedure particularly registration of FIR being not in accordance with Section 154 Cr.P.C. and mandate of guidelines of the
Hon’ble Supreme Court in Lalitha Kumari v. Government of UP reported in (2014)
2 SCC 1. As such, it is required to be held that prejudice is caused to right of the accused and this has weaken the case of prosecution which entitles the accused for benefit of doubt on score of unfair investigation.
62.For the discussion taken above accused is required to be acquitted of the charges framed against him by extending the benefit of doubt.
63. In the result, the accused is found not guilty of the charge under sections 494, 495, 498(A) and 306 IPC. Hence, he is acquitted under Section 235 (1) of Cr.P.C. for the said offences. The bail bonds of the accused shall be in force for a period of six months as per section 437(A) of Cr.PC. MOs 1 to 4 shall be destroyed after expiry of appeal time. The unmarked case property if any shall be destroyed after expiry of appeal time.
Dictated by me, transcribed by the Stenographer Gr-I, corrected and
pronounced by me in the open Court, on this the 25 th day of April, 2024.
Sd/-
METROPOLITAN SESSIONS JUDGE
HYDERABAD
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR PROSECUTION:- PW.1. E. Laxmi PW.2. Lokesh PW.3. A. Suresh PW.4. Yellamma PW.5. Mallesh Yadav PW.6. M. Yesuratnam PW.7. P. Amarjyothi PW.8. Dr. Abhijeeth Subedar PW.9.S. Veeraiah
WITNESSES EXAMINED FOR DEFENCE:- Nil 20 of 20 S.C. NO.178/2018
EXHIBITS MARKED FOR PROSECUTION:- Ex.P.1. Rough sketch of house of the deceased Ex.P.2. Inquest panchanama dated: 09.01.2014 Ex.P.3. Statement of Haritha/LW1 Ex.P.4. Statement of the Declarant/Harathi Ex.P.5. Post Mortem Examination issued by Dr. G. Devaraju Ex.P.6. First Information Report Ex.P.7. Section Alteration Memo
EXHIBITS MARKED FOR DEFENCE:- Nil
MATERIAL OBJECTS MARKED:- Nil M.O.1.One Match Box M.O.2.Two Match Sticks M.O.3.Burnt Clothes M.O.4.Kerosene Can
Sd/-
METROPOLITAN SESSIONS JUDGE
HYDERABAD