HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2245 OF 2004 Dated 24-02-2011 Between: Venkataiah and 2 others. ……..Appellants Vs. State, rep. by PP ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2245 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the VI Additional Sessions Judge, Mahabubnagar in S.C.No.330 of 2002 on 24.09.2004. The appellants were prosecuted for the offence under Section 305 IPC alleging that they abated the minor girl Kum. Geetha to commit suicide. The brief facts of the case of the prosecution are that on 26.4.2002 at 8.00 hours, P.W.5 has lodged a written complaint at Police Station, Mahabubnagar Rural stating that on 25.4.2002 at about 6.30 p.m he was informed by his sister Geetha that she was getting head-ache and she asked him to get some tablet and accordingly he went to the medical shop and bought a tablet for head-ache and came back to the house within half an hour and on returning to the house he noticed that his house was bolted from inside, even after knocking his sister did not open the doors. Suspecting some fishy he broke open the door and found that his sister Kum. Geetha’s dead body was hanging with a rope by tying to the hook of the roof of the house. On seeing this scene, he called one of the mason who is working near by their house and removed the dead body of his sister Geetha from the hanging and laid down and he noticed a chit written in the own hand writing of his sister Geetha stating that “Venkata Swamy, Rama Swamy and Narasimha are responsible for her death”. According to him there were some dispute with the above mentioned persons with the family members of the complainant in connection with their pigs. On 25.4.2002, the above said persons might have threatened her on telephone and due to which she committed suicide. Basing on the said complaint, P.W.8 has registered the case in Crime No.95 of 2002 under Section 306 IPC and took up the investigation and he examined and recorded a statement of P.Ws.1 to 3 and seized the suicidal note written by the deceased which was produced by P.W.5. He held the inquest on the dead body of the deceased in the presence of P.W.4 and another Ramulamma and also conducted the observation of scene of offence and seized the note book pertaining to the deceased which contains the hand writing of the deceased Kum. Geetha. Later, the dead body of the deceased was sent to Government Hospital, Mahabubnagar for postmortem examination. The suicidal note written by the deceased and hand writing note book were sent to the hand writing expert for verification. The Doctor (P.W.6) who conducted autopsy over the dead body of the deceased gave opinion that the deceased died due to asphyxiation leading to hypoxia and death. On 15.5.2002, the accused 1 to 3 surrendered before the police voluntarily and they were remanded to judicial custody. According to the prosecution, there are disputes between the family of the deceased and the accused with regard to sale of pigs and the accused earlier threatened that they will kidnap Kum. Geetha and commit rape and kill her. The hand writing expert has found that both the hand writings in suicidal note and note book are written by the same person. Hence, the accused were charged under Section 305 IPC. The learned Sessions Judge has framed the charge under Section 305 IPC against all the accused and all the accused pleaded not guilty for the said charge. The prosecution in order to establish the charge, examined P.Ws.1 to 8 and got marked Exs.P.1 to 8 and M.O.1. The learned Sessions Judge by taking into consideration of both oral and documentary evidence found the accused guilty for the offence under Section 305 IPC and convicted and sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs.2,000/- each in default to under go simple imprisonment for two months. Aggrieved by the said conviction and sentence, the presence appeal is filed. Now the point that arises for consideration is whether the prosecution is able to establish the offence under Section 305 IPC against the accused beyond reasonable doubt? The learned counsel for the appellants has pleaded that the prosecution could not able to establish about the threats made by the accused to the deceased prior to her death to kidnap, rap and kill her and the evidence of P.Ws.1 and 2 in that regard are contrary to each other and they improved their statements before the court and further pleaded that the deceased was having love affair with one Mutyalu of Yakuvapally and on the date of incident Mutyalu came to their house and P.Ws.1 and 2 beat him and paid Rs.50/- to him towards bus charges and asked him not to come their house and also beat the deceased for having love affair with the said Mutyalu and due to which the deceased might have committed suicide on that day evening and the said Mutyalu also committed suicide on the next day morning of the death of the deceased. Therefore, the accused are not responsible for the death of the deceased. The learned counsel for the appellant has pleaded that even if the suicidal note is accepted to have been written by the deceased, it does not disclose any instigation made by the accused to her to commit suicide and the said suicidal note also does not disclose the circumstances which lead to her death. As she is simply mentioned that she was insulted by the accused and they are responsible for her death. The learned Public Prosecutor has pleaded that the evidence of P.Ws.1,2 and 5 establish the disputes between the accused and the deceased family and also the accused threatening the deceased to kidnap, rape and kill her and she could not able tolerate the harassment of the accused committed the suicide by leaving the suicidal note. Since there are disputes between the deceased and the accused family and she was harassed by the accused they alone are responsible for the death of the deceased. Hence, the lower court has rightly convicted the accused for the offence under Section 305 IPC. P.W.5 is the complainant and the brother of the deceased has stated that his sister died on 25.4.2002. On that day, he was sitting out side of their house going through his books. Meanwhile a telephone call was received by his sister and she came out and informed him that the three accused telephoned to her threatened her that they would seduce her and kill her. So informing him, she complained headache and asked him to get some tablet. He went and returned with in half an hour with tablet. He found the doors of their house closed and he pushed the doors but they did not open. Then he broke opened the doors with a boulder with the assistance of P.W.3 They went inside the house and found his sister hanging to the cradle hook to the ceiling. Himself and P.W.3 brought down his sister and found her died. The deceased left a suicide note stating that three accused are responsible for her death. He also stated that there are disputes with the accused in connection with the sale of pigs and all the three accused are responsible for the death of his sister. In the cross-examination he has stated that he did not state before the police as mentioned in Ex.D.1. He denies that he did not state before the police that on the date of incident he was studying outside the house and his sister received a phone call and talked in the phone and after that she came out and informed him that the three accused telephoned and threatened her that they would seduce and kill her and she asked him to bring a tablet. He admitted that he has not mentioned in Ex.P.5 that the accused beat his parents, brother and uncle on 1.4.2002 while returning from Yakuvapally after attending the marriage. He also admitted that in Ex.P.5 he did not specifically state that while he was studying outside of the house, the deceased received a telephone call and after that she came and informed him that the accused through telephone threatened her. Therefore, according to P.W.5, prior to the death of the deceased, the accused telephoned to his sister Kum. Geetha and threatened her to seduce her and kill her and the same fact was informed by his sister to him. Admittedly he has not mentioned the said fact in the complaint given by him which was marked as Ex.P.5. In Ex.P.5, he only suspected that yesterday i.e., on 25.4.2002 in the evening while he is alone in the house, the above said three accused persons threatened his sister through telephone and due to which his sister committed suicide. Therefore, it is only a suspicion of P.W.5 about the telephone call made by the accused to the deceased on 25.4.2002. More over the Investigating Officer (P.W.8) has specifically stated that P.W.5 has not stated before him about his studying outside the house and observing his sister receiving a telephone call and came out and informed that the accused threatened her to seduce and kill her and therefore, she complained about headache and asked him to bring a tablet. More over in the suicidal note which is marked as Ex.P.3 also does not disclose about the telephone call received by her from the accused. Therefore, the said allegation that the accused threatened the deceased through telephone to seduce and kill her on the date of incident was not established by the prosecution. The other witness P.W.1 who is the mother of the deceased was not present at the time of incident in the house and herself and her husband gone to Jedcherla leaving the deceased and P.W.5 in the house. According to her, there are disputes between the accused and themselves with regard to sale of pigs and according to her all the three accused beat her and threatened her that they would kidnap, seduce and kill her. About one and half moths later, they attended a marriage in a relative’s house at Yakuvapally of Amangal Mandal. While they were returning to their village, the three accused and their brothers beat him, he husband and her son. About four days prior to her death, the deceased informed her that the accused threatened her through telephone that they would take away, rape and kill her, but she ignored the same. In the cross-examination, she has stated that before the police she has stated that the accused threatened the deceased during their absence. But she admitted that she did not state before the police that her daughter informed her about 4 days prior to her death that the accused threatened her through telephone. She has stated before the police that the accused threatened that they would take away her daughter and kill her. She also stated that after receiving the telephone call from the accused, she complained about the headache and asked her brother to bring a tablet. P.W.2 who is the father of the deceased has also stated about the disputes between themselves and the accused with regard to sale of pigs. He also stated that they attended the marriage at Yakuvapally on 1.4.2002 and while they were returning home all the accused along with 14 members attacked them and assaulted them. After the said incident his daughter committed sucide on 25.4.2002. Basing on the suicidal note the accused are responsible for the death of the deceased and that the accused made telephone call to the deceased and threatened her. Therefore, from the evidence of P.Ws.1 and 2, it is evident that there are disputes between the accused and P.Ws.1 and 2 with regard to sale of pigs and according to P.W.1 the accused used to threat the deceased in their absence that they would take away her, rape and kill her but the said fact was not spoken by the P.W.2 before the police. More over P.W.1 admitted that she has not stated before the police that her daughter informing him four days prior to the incident about the threats by the accused and telephone. With regard to threats made by the accused in their absence, she has not stated the said fact before the police in her statement as per the evidence of P.W.8 Investigating Officer. Therefore, from the above also, the prosecution could not able to establish about the accused threatening the deceased over phone to kidnap, rape and kill her, even though there are disputes between the accused and P.Ws.1 and 2 with regard to sale of pigs. The next contention of the learned counsel for the appellants is that the deceased was having a love affair with Mutyalu and on the date of incident, the said Mutyalu came to their house and P.Ws.1 and 2 beat him asked him not to visit again and paid him Rs.50/-. In that regard, P.W.1 has stated that the deceased was suffering from headache and her maternal uncle took the deceased to Yakuvapally for treatment for headache and they used to stay in the house of her maternal uncle Bellam Konda Ramulu. Mutyalu is his son. She does not know the age of Mutyalu. But she has stated that the accused spreading the rumour that there was love affair between the deceased and the Mutyalu. She further admitted that Mutyalu used to visit their house now and then. They returned to Mahabubnagar from Yakuvapally one week prior to the deceased committing suicide. They returned to Yakuvapally on Thursday. The deceased committed suicide on next Thursday. Mutyalu came to their house in the morning on the day on which the deceased died. They advised him not to visit their house, but they denied that they beat Mutyalu with date palm canes severally and gave him Rs.50/- and sent him away from their house asking him not to come to their house again. P.W.2 has denied about the love affair between Mutyalu and the deceased but he has stated that Mutyalu is related to him and the deceased used to talk to him but there is no such love affair between them. He admitted that the deceased was being treated by Dr. Vishnu of Yakuvapally. He also admitted that during the visit to Vakuvapally for treatment, the deceased was staying in the house of Ramulu, father of Mutyalu. He denied that after brought back the deceased to their house, Mutyalu visited their house and that they beat him with date palm canes, gave him Rs.50/- and sent him from their house warning him not to visit their house again. P.W.5 in his cross-examination stated that he did not know Mutyalu but heard that he is related to them. His parents informed him that on the preceding day of incident Mutyalu came to their house but his mother drove away stating that himself and the accused are one and the same and therefore not to visit their house. But he also denied that there was love affair between the deceased and the said Mutyalu and expressed his ignorance whether Mutyalu has committed suicide on the next day morning. Therefore, from the above evidence, it is evident that the deceased used to stay in the house of the father of the Mutyalu whenever they visited Yakuvapally for treatment. As admitted by P.W.2 the said Mutyalu has also committed suicide on the next day morning on hearing about the death of the deceased. Therefore, the above circumstances probablise that there was love affair between the deceased and the Mutyalu. The learned counsel for the appellants pleaded that even if Ex.P.3 suicidal note was written by the deceased the same does not establish the instigation made by the accused to commit suicide. As per the evidence of P.Ws.1 to 3 and 5, the deceased has committed suicide by hanging and the same was supported by the medical evidence of P.W.6. Therefore, there is no dispute with regard to the suicidal death of the deceased on 25.4.2002. Now it has to be examined as to whether the said suicide was committed by the deceased due to the abatement the accused. As already observed above with regard to accused making telephone call and threatening the deceased could not be established by the prosecution. Thus, the only evidence available on record pointing out the guilt of the accused is Ex.P.3 suicidal note. The Investigation Officer has seized the suicidal note and hand writing note book of the deceased and sent them for hand writing expert and he gave a report Ex.P.7 stating that the questioned writings marked ‘Q’ have been compared with the standard writings marked S1 to S4 and both are written by the same person. The suicidal note was marked as ‘Q’ and the writings in the note book was marked as S1 to S4 by the hand writing expert. As per his opinion both the writings marked as Q, S1 to S4 are by one and the same person. Therefore, the prosecution could able to establish the suicidal note Ex.P.3 was written by the deceased. The contention of the learned counsel for the appellant is that the averments made in the suicidal note cannot attract the abatement on the part of the accused and in support of his contention he relied upon a decision rendered in Sanju @ Sanjay Singh Sengar v. State of M.P.[1] wherein the Apex Court has held: “Even if we accept the prosecution story that the appellant did tell the deceased ‘ to go and die’, that itself does not constitute the ingredient of ‘instigation’. The word ‘instigate’ denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25.7.1998 ensued by quarrel. The deceased was found hanging on 27.7.1998. Assuming that the deceased had taken the abusive language seriously he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25.7.1998 drived the deceased to commit suicide.” The next contention of the learned counsel for the appellants that the suicidal note does not disclose the circumstances which leading to the death of the deceased and in support of his contention, he relied upon a decision rendered in Kans Raj v. State of Punjab and others[2] wherein the Apex Court has held: “Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The words “ as to any of the circumstances of the transaction which resulted in his death” appearing in S.32 must have some proximate relations to the actual occurrence. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement.” In the present case, the deceased has left the suicidal note which is marked as Ex.P.3. In Ex.P.3 she has mentioned that Venkata Swamy, Rama Swamy and Narasimha are responsible for her death and all of them have insulted her and the said note was dated as 25.4.2002. But as already observed above, the said note does not disclose about the manner in which the accused have insulted her and she did not mention about her receiving of the telephone call as alleged by the prosecution prior to her committing suicide. Therefore, the said suicidal note does not disclose the circumstances leading to the cause of death. She did not speak as to how the accused has humiliated or insulted her prior to her committing suicide and as to how they are responsible for her committing suicide. More over as per Section 109 of the IPC to establish abatement, there must be instigation or intentional aid by the accused in committing the suicide by the deceased. More over as per the decision rendered in Sanju @ Sanjay Singh Sengar (1 supra), there must be mens rea on the part of the accused to instigate the deceased to commit suicide. In the present case even if there are disputes between the accused and the deceased family and there is no evidence on record that the accused has threatened the deceased to kidnap, seduce and kill her and they have made the said threats by telephone to the deceased. Simply because there are disputes, it cannot be said that the accused has instigated the deceased to commit suicide. More over as already observed above, the suicidal note does note disclose any reasons that the accused are responsible for her death and simply because she has stated that they insulted her cannot be termed that they instigated the deceased to commit suicide. Therefore, it cannot be said that the accused abated to commit suicide by the deceased. Therefore, the prosecution could not able to establish the charge under Section 305 IPC against the accused beyond reasonable doubt. In the result, the appeal is allowed and the conviction and sentence passed by the VI Additional Sessions Judge, Mahabubnagar in S.C.No.330 of 2002 dated 24.09.2004 is hereby set aside and all the accused are acquitted. _____________________ P.DURGA PRASAD,J. Date:24.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2245 OF 2004 Dated 24-02-2011 Gk. [1] AIR 2002 Supreme court 1998 [2] AIR 2000 Supreme Court 2324(1)