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CRL.A No.738 of 2013

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11

TH

DAY OF FEBRUARY, 2026

BEFORE

THE HON'BLE MR. JUSTICE G BASAVARAJA

CRIMINAL APPEAL NO.738 OF 2013

BETWEEN:

MR MOHAMMED SALEEM

S/O ABDUL BASIN,

AGED ABOUT 36 YEARS

R/AT TAJ MANJIL HAJI ASLAM

8

TH

MAIN, BISMILLA NAGAR,

B.C. ROAD, BANGALORE-560032

(UNDERGOING IMPRISONMENT)

...APPELLANT

(BY SRI. SHAIKH SAOUD, ADV.)

AND:

THE STATE BY MICO LAYOUT

POLICE STATION, BANGALORE,

REP. BY STATE PUBLIC PROSECUTOR,

HIGH COURT BANGALORE-560001

…RESPONDENT

(BY SRI. LAKSHMAN B, HCGP)

CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE

THE JUDGMENT AND ORDER OF CONVICTION DATED

09.04.2013 PASSED BY THE P.O., F.T.C.-9, BANGALORE IN

S.C.NO.1583/2011 - CONVICTING THE APPELLANT/ACCUSED

FOR THE OFFENCE P/U/S 498A AND 306 OF IPC.

THIS APPEAL HAVING BEEN HEARD AND RESERVED F OR

JUDGMENT ON 02.02.2026 AND COMING ON FOR

"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,

DELIVERED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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CRL.A No.738 of 2013

CAV JUDGMENT

1.

The appellant has preferred this appeal against the

judgment of conviction and order on sentence dated 09

th

April,

2013 passed in SC No.1583 for 2011 by the Presiding Officer,

Fast Track Court-IX, Bengaluru City (for short "the trial Court").

2.

Parties are referred to as per their rank before the

trial Court.

3.

The brief facts leading to this appeal are that, the

Police Inspector, MICO Layout Police Station, Benga luru

submitted charge sheet against the accused for the offence

under Sections 498A and 306 Indian Penal Code. It is alleged

by the prosecution that, deceased-Jabeena Khan is t he

daughter of CW.11-Smt.Majhar Khan and CW.7-Fyroz Kh an;

CW.8-Farook Khan, CW.9- Imthiyaz Khan are the elder

brothers of the deceased and CW.10-Afroz Khan is the younger

brother of the deceased and the complainant-Mohamme d

Naveed is the son of the deceased; and the accused is the

husband of the deceased. After marriage, accused an d

deceased were residing in the rental house of one Haji Aslam in

8

th

cross Bismillah Nagar, MICO Layout, Bengaluru. The

accused was an Autorikshaw driver by profession. He was

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CRL.A No.738 of 2013

addicted to bad vices, was doubting fidelity of deceased, he

was picking up quarrel with the deceased in inebria ted state

and he did not heed to the advice of relatives and elders.

CW.12-Noushad, CW.13-Nahimunnisa and the neighbours had

also seen the ill-treatment given by the accused to the

deceased. It was alleged that accused was forcing the deceased

to bring money from her parents house and the brothers of the

deceased had also given an Autorickshaw to him for their

livelihood. About 2 to 3 years prior to the incident, the accused

had beaten the deceased and she was treated in a pr ivate

hospital and in that regard he was advised by elders to lead a

peaceful life, but in vain. That being so, on 12.0 9.2011 at

about 02.30 p.m., while the complainant-Mohammed Na veed

had returned home from school due to ill-health, the accused

came in an inebriated state and picked up quarrel w ith the

deceased and assaulted her and the deceased being fed up with

ill-treatment given by the accused, sent the Complainant under

the guise of purchase of coconut oil, comb etc. and committed

suicide by hanging herself to the ceiling fan with the help of

mantle by closing the doors of the house. The Comp lainant

who returned home at about 03.30 p.m. saw the decea sed

through the window, telephoned to relatives, called the

neighbours and then opened the door of the house. Then, he

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CRL.A No.738 of 2013

took the deceased to Shekhar Hospital with the help of relatives

and neighbours. In the meanwhile, accused ran away from the

house and deceased was shifted to Jayadev Hospital. There

she was declared dead. Thus, the accused has commi tted the

offence under Sections 498-A and 306 IPC.

4.

The accused was arrested by the police on

14.09.2007 and he was released on bail on 07.07.2012. After

filing the charge sheet, case was registered in CC No.334/2011.

The case was committed to the Court of Sessions and was

registered in SC No.1583/2011.

5.

Upon hearing on charges, the trial Court has framed

the charges against the accused for the commission of alleged

offence. Same were read over and explained to the a ccused.

Having understood the same, accused pleaded not gui lty and

claimed to be tried.

6.

To prove the guilt of the accused, the prosecution

has examined 10 witnesses as PW1 to PW10; 14 docume nts

were marked as Exhibits P1 to P14; 4 material objec ts were

marked as MOs.1 to 4. On closure of prosecution si de

evidence, statement under Section 313 of Cr.P.C was recorded.

The accused has totally denied the evidence of pros ecution

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CRL.A No.738 of 2013

witnesses. The accused did not choose to lead any d efence

evidence on his behalf.

7.

Having heard the arguments on both sides, the trial

Court has convicted the accused for the offence under Sections

498A and 306 of Indian Penal Code and passed a sent ence for

a period of 5 years and to pay a fine of ₹5,000/- for the offence

under Section 306 of Indian Penal Code and further to undergo

imprisonment for 2 years and to pay a fine of ₹2,000/- for the

offence under Section 498A of Indian Penal Code. Be ing

aggrieved by the judgment of conviction and order o n

sentence, the appellant has preferred this appeal.

8.

The learned counsel for the appellant would submit

that, the Judgment of conviction and Order on sentence passed

by the trial Court is contrary to law and probabilities of the

case. The independent witnesses-CW12 and CW13, sta ying in

the upper floors of the same building where the acc used and

deceased were staying, who would speak about the day-to-day

events between the accused and deceased, were not e xamined

by the prosecution. So the version of interested w itnesses

remain uncorroborated. The trial Court was wrong i n not

considering this important factor. Hence, the conviction is liable

to be set aside.

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CRL.A No.738 of 2013

9. He submitted that, PW.6-Naushad is cited as spot

mahazar witness in the charge sheet. But the prosec ution

illegally made improvement and elicited through him in the

examination-in-chief itself that he is staying in the upstairs of

the same building where the accused and deceased we re

staying and projected them as eyewitness, which is wrong. The

trial Court did not even notice these important circumstances

and wrongly convicted the appellant.

10.

Learned counsel for the appellant further submitted

that the prosecution has failed to prove the most i mportant

document viz. Exhibit P1. The conviction based on s uch an

document is liable to be set aside. Exhibit P1 is not in the

handwriting of PW1-Complainant. He has deposed bef ore the

Court that he narrated the incident to the Police in Hindi and

the Police has translated it to Kannada and written the same.

Admittedly, Ex.P1 is not reduced into the writing by PW.9-Police

Inspector. The prosecution has not examined the Police Officer

who actually wrote Exhibit P1 i.e., the scribe of t he said

document. Hence, Exhibit P1 remains legally unprov ed. The

trial court did not even notice this important legal issue and has

wrongly convicted the appellant. Hence, the conviction is liable

to be set aside.

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CRL.A No.738 of 2013

11. Learned counsel for the appellant further submitted

that, PWs3, 7 and 8 are brothers of deceased and PW 1 is the

son of the deceased now staying with them. PW6 is the close

friend of the above witnesses. So all of them are i nterested

witnesses. Their version remained uncorroborated w ith any

independent witnesses. In spite of that, the trial Court has

wrongly convicted the appellant.

12.

Learned counsel for the appellant further submitted

that, the prosecution has relied upon totally 18 witnesses as

shown in the charge-sheet, but the prosecution has chosen to

examine and rely only on interested witnesses, which is wrong.

Admittedly, the appellant was married to the deceas ed 18

years back and having 4 children. During the course of entire

marital life of 18 years, admittedly, no case was filed either by

the deceased or by any of her brothers or other rel atives

against the appellant. After the suicide of the deceased, all of a

sudden, the prosecution has come up with a story of alleged

circumstances of harassment which has resulted in compelling

her to commit suicide, which is wrong. PW6 has cle arly and

specifically stated in his cross-examination that accused used to

quarrel when he was intoxicated, otherwise he used to behave

normally and none of the essential ingredients to c onstitute

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CRL.A No.738 of 2013

offence under Section 306 and 498A of Indian Penal Code are

made out. However, the trial Court has convicted the accused

for the alleged offences which is not sustainable under law. To

substantiate his argument he relied on the decision in the case

of KASHIBAI & ORS. v. STATE OF KARNATAKA reported i n 2023

LIVELAW (SC) 149.

13. As against this, Sri B Lakshman, learned High Court

Government Pleader appearing for the respondent-Sta te, would

submit that the trial court has properly appreciated the material

on record and absolutely there are no grounds to interfere with

the impugned judgment of conviction and order on se ntence

and accordingly, sought for dismissal of the appeal.

14. Having heard the arguments on both sides and on

perusal of material placed before this court, the following points

would arise for my consideration:

1. Whether the trial Court is justified in convicting

the accused for the offence punishable under

Section 306 IPC?

2. Whether the trial Court is justified in convicting

the accused for the offence punishable under

Section 498A IPC?

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CRL.A No.738 of 2013

3. Whether the appellant is entitled for modification

of sentence passed by the trial court for offence

under Section 498A IPC?

4. What order?

Regarding Points 1 and 2:

15. I have examined the materials placed before this

court. The investigating officer has submitted cha rge-sheet

against accused for commission of offence punishabl e under

Sections 306 and 498A of Indian pin code. The trial court has

convicted the accused for the aforestated offences. Before

appreciating the evidence on record, it is necessary to mention

as to the essential ingredients to constitute the o ffence

punishable under Section 306 of Indian Penal Code, which is as

under:

"The Prosecution has to prove.-

(i) the deceased committed suicide;

(ii) the accused instigated or abetted for commit ting

suicide (committing suicide by itself is a crime);

(iii) direct involvement by the accused in such

abetment or instigation is necessary."

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CRL.A No.738 of 2013

16. The Hon'ble Supreme Court in the case of KASHI

BAI AND OTHERS (supra), by referring to the decisio n of M

MOHAN v. STATE REPRESENTED BY THE DEPUTY

SUPERINTENDENT OF POLICE reported in (2011)3 SCC 62 6, at

paragraphs 5 to 9, has observed as follows:

"5. At this juncture, it would be beneficial to reproduce the

relevant provision contained in Section 306IPC 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 li able to

fine.”

6. What is “abetment of a thing” has been described in Section

107 which reads as under:

“107. Abetment of a thing .—A person abets the doing of a

thing, who—

First.—Instigates any person to do that thing; or

Secondly.—Engages with one or more other person or persons

in any conspiracy 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.

Explanation 1.—A person who, by wilful misrepresentation, or

by wilful concealment of a material fact which he is bound to

disclose, voluntarily causes or procures, or attempts to cause

or procure, a thing to be done, is said to instigate the doing of

that thing.

7. From the bare reading of the said provisions, it c learly

transpires that in order to convict a person for the offences

under Section 306IPC, the basic constituents of the offence,

namely, where the death was suicidal and whether th ere was

an abetment on the part of the accused as contempla ted in

Section 107IPC have to be established.

8. In M. Mohan v. State of T.N. [M. Mohan v. State of T.N.,

(2011) 3 SCC 626 : (2011) 2 SCC (Cri) 1] , this Cou rt has

elaborately dealt with the provisions contained in Section 306

read with Section 107IPC, and after discussing various earlier

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CRL.A No.738 of 2013

decisions has observed as under : (SCC pp. 637-38, paras 41-

45)

“41. This Court in SCC para 20 of Ramesh Kumar [Ram esh

Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC

(Cri) 1088] has examined different shades of the me aning of

“instigation”. Para 20 reads as under : (SCC p. 629)

‘20. Instigation is to goad, urge forward, provoke, incite or

encourage to do “an act”. To satisfy the requiremen t 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 circumstan ces 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.’

In the said case this Court came to the conclusion that there is

no evidence and material available on record wheref rom an

inference of the appellant-accused having abetted commission

of suicide by Seema (the appellant's wife therein) may

necessarily be drawn.

42. In State of W.B. v. Orilal Jaiswal [State of W.B. v. Orilal

Jaiswal, (1994) 1 SCC 73 : 1994 SCC (Cri) 107] this Court has

cautioned that (SCC p. 90, para 17) the Court shoul d be

extremely careful in assessing the facts and circumstances of

each case and the evidence adduced in the trial for the

purpose of finding whether the cruelty meted out to the victim

had in fact induced her to end her life by committing suicide.

If it appears to the Court that a victim committing suicide was

hypersensitive to ordinary petulance, discord and difference in

domestic life, quite common to the society, to which the victim

belonged and such petulance, discord and difference were not

expected to induce a similarly circumstanced individual in a

given society to commit suicide, the conscience of the Court

should not be satisfied for basing a finding that the accused

charged of abetting the offence of suicide should b e found

guilty.

43. This Court in Chitresh Kumar Chopra v. State (N CT of

Delhi) [Chitresh Kumar Chopra v. State (NCT of Delhi), (2009)

16 SCC 605 : (2010) 3 SCC (Cri) 367] had an occasion to deal

with this aspect of abetment. The Court dealt with the

dictionary meaning of the word “instigation” and “g oading”.

The Court opined that there should be intention to provoke,

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CRL.A No.738 of 2013

incite or encourage the doing of an act by the latter. Each

person's suicidality pattern is different from the others. Each

person has his own idea of self-esteem and self-res pect.

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.

44. Abetment involves a mental process of instigati ng 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.

45. The intention of the legislature and the ratio of the cases

decided by this Court are clear that in order to co nvict a

person under Section 306IPC 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 this act must have been intended to push the de ceased

into such a position that he/she committed suicide.”

9. In view of the above, it is quite clear that in order to bring

the case within the purview of “abetment” under Sec tion

107IPC, there has to be an evidence with regard to the

instigation, conspiracy or intentional aid on the part of the

accused. For the purpose proving the charge under S ection

306IPC, 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."

17. In the case on hand PW1-Mohammed Naveed,

brothers of the deceased PW3-Fairoz, PW7-Afroz Khan , PW8-

Shah Rukh Khan and neighbours PW6-Naushad, PW2-Afza l,

have all stated that the marriage of the deceased w ith the

accused was performed about 18 years back and they have got

four children and they were residing in Bismillah Nagar. The

accused in an inebriated state used to abuse and as sault the

deceased and used to force her to bring money from parents

house and would subject her to cruelty and also did not heed to

the advice of elders. He was also doubting her character and

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CRL.A No.738 of 2013

hence the deceased committed suicide by hanging her self to

the ceiling fan with her mantle. They have further stated that

the brothers of the deceased were taking care of her family and

accused was not maintaining his family. They had al so

purchased an autorickshaw for the accused. The com plainant

has stated that on 12

th

September 2011, he was in the house,

and the accused came at about 2.00 pm in an inebria ted

condition and started to abuse his mother for money and

doubted her character and abused her in indecent wo rds.

Thereafter, deceased had sent him to kirana shop in the guise

of bringing Coconut oil and comb and committed suic ide by

2:30 pm. The complainant saw the deceased through the

window returning from the shop and knocked the door and

called the neighbours. Accused opened the door and ran away

from the spot and thereafter, PW3-Fairoz Khan came and took

her to Shekhar Hospital in an autorickshaw and later shifted to

Jayadev Hospital. The complainant has stated about filing the

complaint as per Exhibit P1 and drawing of the spot

panchanama and identifying the material objects.

18. PW3-Firoz Khan has stated that he has received the

phone call at 3:45 pm and came to the house of his sister and

saw that the neighbours had laid his sister on the floor after

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CRL.A No.738 of 2013

removing the mantle from the ceiling fan and he took his sister

to Shekhar Hospital and later to Jayadev Hospital, where

Doctors declared she was dead and there was ligature mark on

the neck of his sister. He had also filed another complaint

earlier stating that accused assaulted his sister.

19. PW6-Naushad has also stated that the accused was

forcing her to bring money from her parents house and used to

assault her. He has further stated that he had also pacified the

quarrel 2 to 3 times and saw that the deceased comm itted

suicide by hanging herself to the ceiling fan. He has also stated

as to drawing of panchanama as per Exhibit P2 and h e has

identified the material object MO3 and also photos at Exhibits

P3 to P5.

20. PW7-Afroz Khan and PW8-Farooq Khan, brother of

the deceased have stated that they have given dowry of

₹20,000/- at the time of marriage, and after marria ge, the

accused was treating their sister and subjected her to cruelty

for bringing money and they were helping the family of the

deceased by paying rent, school fees and purchasing groceries

and they had also purchased an autorickshaw for him. Further,

they have advised the accused to lead better life, which went in

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CRL.A No.738 of 2013

vain. Further, they have deposed as to the suicide committed

by the deceased.

21. PW4-Dr. Suresh has deposed as to conducting of

postmortem and issuance of postmortem report.

22. PW5-Cheluva Murthy, Police Constable, has stated

as to tracing out of the accused and producing him before the

investigating officer and the report submitted as per Exhibit

P10.

23. PW10-Puttamadaiah, Head Constable and PW9-

Mohan Kumar, Investigating Officer have deposed as to their

respective investigation.

24. On careful examination of the entire materials on

record, I do not find any material to constitute the offence

punishable under Section 306 of Indian Penal Code. However,

the trial court has convicted the accused for offence punishable

under Section 306 of Indian penal code, which is no t

sustainable, under law. Accordingly, I answer point No.1 in the

negative.

25. With regard to offence punishable under Section

498A of Indian penal code is concerned, the complainant who is

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CRL.A No.738 of 2013

the son of the accused has clearly deposed as to th e ill-

treatment given by the accused to the deceased and the same

was substantiated by other witnesses also. The acc used has

not placed any materials to discard the evidence of prosecution

witnesses pertaining to commission of offence under Section

498A of Indian Penal Code. The trial court has appreciated the

evidence on record in accordance with law and facts. I do not

find any legal or factual error in interfering with the conviction

of the accused for offence punishable under Section 498 of

Indian Penal Code. Accordingly, I answer Point No. 2 in the

affirmative.

Regarding point 3:

26. The trial Court has convicted the accused for the

offence punishable under Section 498A of Indian Pen al Code

and passed sentence to undergo imprisonment for a p eriod of

two years and to pay a fine of ₹2,000/- for the offence under

Section 498A of Indian Penal Code. The trial Court has

convicted the accused for the offence under Section 498A of

Indian Penal Code and passed sentence to undergo

imprisonment for a period of two years and to pay f ine of

₹2,000/- for offence punishable under Section 498A of Indian

Penal Code. The commission of offence under Section 498A is

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CRL.A No.738 of 2013

punishable with imprisonment for a term which may e xtend to

3 years and shall also be liable to fine. In the case on hand,

accused was arrested on 14

th

September, 2011 and was

released on bail on 7

th

February, 2012. Accordingly, he was in

judicial custody for a period of 4 months 23 days. The trial

court has passed judgment on 9

th

April, 2013, and on that day

accused was taken to custody. This court vide order dated 13

th

December, 2013, suspended the sentence and released the

accused on bail. Accordingly, accused was in judicial custody

for a period of 8 months 4 days. On 8

th

October 2025, the

learned Counsel for the appellant has stated that he does not

know as to whether the appellant is alive or not, and he does

not have any contact details of the appellant. Hen ce, at

request of learned counsel for the appellant, this court has

issued notice to the appellant through concerned Police. The

court notice was not served to accused and the same was also

not returned. Again, this court, on 4

th

November 2025, issued

court notice to the appellant through Commissioner of Police.

Despite the same, police have not served notice to the accused.

Thereafter, on 25 November 2025, Police submitted a report

stating that the appellant has vacated the premises long back.

On 19

th

November, 2025 a Mahazar was conducted. Thereafter ,

this court issued non-bailable warrant to the accused through

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CRL.A No.738 of 2013

concerned police. The same was executed on 26

th

December,

2025. Thereafter, this court passed an order on 6

th

January,

2026 to release the accused on bail. Since the accused has not

furnished security and deposited the fine amount till this date,

the accused is in judicial custody. Considering the relationship

between the accused and the deceased, the age of the accused

and the period of detention already undergone by the accused

in custody for a period of 9 months and 20 days. It is just and

proper to release the accused. Accordingly, Point No.3 is

answered, partly in the affirmative.

27. For the reasons and discussions aforestated, I

proceed to pass the following:

O R D E R

i) Appeal is partly allowed;

ii) Judgment of conviction and order on sentence

dated 9th April 2013, passed in SC No.1583 of

2011 by the Presiding Officer, Fast Track Court-

IX, Bengaluru City for the offence punishable

under Section 306 of Indian Penal Code, is set

aside.

iii) Accused is acquitted of the offence punishable

under Section 306 Indian Penal Code;

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CRL.A No.738 of 2013

iii) The judgment of conviction dated 9

th

April 2013,

passed in SC No.1583 of 2011 by the Presiding

Officer, Fast Track Court-IX, Bengaluru City for

the offence punishable under Section 498A of

Indian Penal Code, is confirmed;

iv) The sentence imposed by the trial court for the

offence punishable under Section 498A of Indian

Penal Code is modified as under:

a. The accused shall undergo imprisonment for a

period of nine months and twenty days , instead

of two years and to pay a fine of ₹2,000/-. It is

submitted by the learned Counsel for the

appellant that the fine amount is already

deposited by the accused;

v) The period of sentence already undergone by the

accused shall be given set off under Section 428

of Code of Criminal Procedure.

Registry to send the intimation along with a copy of this

order to the Jail Authority to release the accused forthwith, if

he is not required in any other case.

Sd/-

(G BASAVARAJA)

JUDGE

lnn/rs