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Mere torture or ill-treatment  or demand for dowry or for property is not cruelty – 498A quash

Madras High Court

Thangappandian
vs
State By Deputy Superintendent Of … on 10 July, 1997

Equivalent citations: 1998 CriLJ 993

Bench: S Sidickk

JUDGMENT

1. The appellant is the accused and the respondent is the complainant. The appellant has preferred this appeal as against the Judgment of conviction and sentence passed by the learned Ist Additional Sessions Judge at Madurai in Sessions Case No. 155 of 1989 on 1989.

2. The prosecution case, as briefly stated, is as follows :-

The deceased Santhi is the wife of the Appellant/Accused by name Thangapandian. They were married seven years prior to the occurrence which took place on 23-5-1988. They were living at Melur and they had children. The deceased Santhi also underwent birth control operation. The Appellant/Accused was a dealer in aluminium vessels at Melur. The aunt of Santhi by name Easwari was also staying with them and she was helping Santhi in her domestic matters. On 23-5-1988 at about 9 a.m. the neighbours of the accused viz., PW 4, Mariammal, PW 5 Chellammal and PW 6 Panchavarnam found the deceased Santhi hanging inside her house and with the help of others, who gathered there, the deceased Santhi was taken to the hospital, and she was brought back to her house as she was found dead at the hospital. Her parents PW 1 Sudalaimuthu and PW 3 Kunjammal were living in another village at Parthibanur and they were sent for and after their arrival at Melur, the father of the deceased Santhi examined as PW 1 Sudalaimuthu went to Melur Police Station and gave the complaint under Ex. P. 2 on 23-5-1988 at 5.30 p.m. The Head constable there examined as PW 7 Ramanathan received the same and registered a case under Section 174 of Criminal Procedure Code in Crime No. 271 of 1988 and he had sent a copy of the printed F.I.R. to the Revenue Divisional Officer under Ex. P. 5 and another copy of the Deputy Superintendent of Police. The Revenue Divisional Officer at Madurai examined as PW 8 Subramanian received Ex. P. 5 at 10.15 p.m. on 23-5-1988, and on 24-5-1988 he proceeded to the Government hospital at Melur and conducted the inquest from 12 noon to 2 p.m. and prepared his report under Ex. P. 6. Thereafter, the Revenue Divisional Officer PW 8 Subramanian gave the requisition to the doctor examined as PW 2 Muthusamy under Ex. P3 to conduct the post mortem. On receipt of the same, the constable of Melur Police Station examined as PW 10 Rajendran took charge of the dead body of Santhi in the Government hospital at Melur, and he was present at the time of post mortem. After the post mortem, the constable PW 10 Rajendran took the clothes of the deceased marked as M.Os. 1 to 5 and brought them and handed over in the police Station. During his inquest, the Revenue Divisional Officer PW 8 Subramanian examined the witnesses PWs 1 and 3 to 6. On receipt of the requisition from the Revenue Divisional Officer, the doctor in the Government hospital at Melur examined as PW 2 Muthusami commenced the post mortem from 4.15 p.m. onwards on 24-5-1988, and issued the post mortem certificate under Ex. P. 4. The following injuries were noted down by the post mortem doctor at the time of post mortem on the dead body of Santhi :

“External Injury : A complete circular broad ligature mark well defined placed at the middle part of the neck at the level of thyroid cartilage. The base of the ligature mark decomposed. Face congested and oedemotous. White froth discharged through mouth and nose.

Internal Examination : Heart normal and healthy. Lungs : On cut section red Haemorrhagic spots both side lungs congested. Fracture of thyroid cartilage on both sides. Hyoid bone intact. Liver and spleen healthy and congested. Stomach contained about 100 ml. of digested fluid without any odour. Kidney normal and congested. Bladder – empty.

Brain : Normal and healthy. Uterus : Normal in size and healthy”.

Since the post-mortem doctor examined as P.W. 2 Muthusami was of the opinion that the deceased Santhi died of asphyxia due to the strangulation of the neck, the provision of law in the F.I.R. was altered into one under Section 302 of I.P.C. by the Inspector of Police of Melur Police Station examined as P.W. 9 Vairamuthu on 6-7-1988 at 4 p.m. Then P.W. 9 Vairamuthu had sent the copies of the altered F.I.R. to the Deputy Superintendent of Police and to the Judicial Magistrate under Ex. P-7. On receipt of the copy of the first F.I.R. on 24-5-1986, the Deputy Superintendent of Police of Kovilpatti examined as P.W. 11 Neelamegam went to the scene of occurrence and prepared the observation mahazar under Ex. P-8 and the rough sketch under Ex. P-9 and he examined the witnesses P.Ws. 1 and 3 to 6 and also Easwari and recorded their statements. Then the Deputy Superintendent of Police P.W. 11 Neelamegam had sent the dead body to the hospital and thereafter he examined the post-mortem constable P.W. 10 Rajendran. Then on 6-7-1988 P.W. 11 Neelamegam received the altered F.I.R. under Section 302 of I.P.C. and he examined the doctor P.W. 2 Muthusami. On 11-7-1988 at 12 noon, the Deputy Superintendent of Police P.W. 11 Neelamegam arrested the accused and sent him to remand. After the completion of the investigation, he laid the charge-sheet against the accused on 17-10-1988.

3. On committal, the learned 1st Additional Sessions Judge at Madurai framed only one charge under Section 302 of I.P.C. against the accused. When questioned in respect of the charge under Section 302 of I.P.C. framed against him, the accused denied the same and claimed, to be tried. In proof of the charges framed against the accused, the prosecution examined P.Ws. 1 to 11 and filed the documents marked as Exs. P-1 to P-9. M.Os. 1 to 5 were marked on the side of the prosecution.

4. When questioned under Section 313 of Cr. P.C. with reference to the incriminating circumstances appearing in the evidence of the prosecution, the Appellant/Accused denied his complicity in the crime. The Appellant/Accused did not choose to examine any witness on his side.

5. On consideration of the materials placed before him, the learned 1st Additional Sessions Judge at Madurai acquitted the accused under Section 302 of I.P.C. and found the appellant guilty of the offence under Section 306 read with Section 498(A) of I.P.C., and sentenced him to undergo rigorous imprisonment for seven years. Aggrieved against the judgment of conviction and sentence, under Section 306 read with Section 498(A) of I.P.C. the Appellant/Accused has come up in appeal.

6. After hearing the learned counsel for the Appellant/Accused and the learned Government Advocate appearing on behalf of the Public Prosecutor, the point that arises for determination is as to whether the Appellant/Accused is guilty of the offence under Section 306 read with Section 498(A) of I.P.C. and as to whether the conviction and sentence imposed on the Appellant/Accused is sustainable on the facts and circumstances of the case.

7. Point :- It is the case of the prosecution that with the intention to commit the murder of his wife, the Appellant/Accused, who is her husband, beat her and kicked her and thereafter strangulated her neck and committed her murder at 9 a.m. on 23-5-1988 at Melur. The relevant charge framed by the learned 1st Additional Sessions Judge at Madurai in Tamil reads as follows :-

(Vernacular matter omitted)

8. Thus a reading of the case of the prosecution as set out in the charge-sheet and in the charge framed by the learned 1st Additional Sessions Judge at Madurai shows that the only charge is for the offence of committing the murder of Santhi under Section 302 of I.P.C. and there is no other charge and so the conviction cannot be based without a charge under Section 306 read with Section 498(A) of I.P.C. This appeal must succeed for the simple reason that having acquitted the Appellant/Accused of the charge under Section 302 of I.P.C., which was the only charge framed against him, the Sessions Judge could not have convicted him of the offence under Section 306 read with Section 498(A) of I.P.C. It is true that Section 306 read with Section 498(A) of I.P.C. entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried for the offence under Section 302 of I.P.C. but Section 306 read with Section 498(A) of I.P.C. cannot be said to be a minor offence in relation to the offence under Section 302 of I.P.C. within the meaning of Section 306 read with Section 498(A) of I.P.C. The reason is that these two offences are of distinct and different categories. While the basis constituent of an offence under Section 302 of I.P.C. is homicidal death, those of Section 306 read with Section 498(A) of I.P.C. are suicidal death and abetment thereof. A similar view was also expressed by the Supreme Court in Sungarbonta Sreenu v. State of Andhra Pradesh, (1997) 2 Crimes 55.

9. Another aspect of this non-framing of charge in this case is as follows. As there was no charge against the Appellant/Accused for the offence under Sections 306 read with 498(A) of I.P.C., one cannot anticipate his defence for those Sections pleading the absence of cruelty. Therefore if the accused was convicted for the offence under Section 306 read with Section 498(A) of I.P.C. on the ground that there is evidence available in this case, then the Appellant/Accused was highly prejudiced as he was not given an opportunity for defending for that offence, though cruelty may happen to be the common element for both the offences. Therefore, in my view, the Appellant/Accused cannot be convicted for the said offence under Section 306 read with Section 498(A) of I.P.C., unless the charge has been framed against him under the relevant Section and the trial proceeded according to law after affording an opportunity for the Appellant/Accused defending as against the said charge.

10. Even assuming and without admitting that the absence of framing the charge under Section 306 read with Section 498(A) of I.P.C. by the trial Court as against the accused will not vitiate the trial, let us consider as to whether there is any acceptable evidence to substantiate the contention of the prosecution that the Appellant/Accused herein subjected his wife Santhi to cruelty, which means the wilful conduct of such a nature as is likely to drive the woman to commit suicide as defined in the explanation to Section 498(A) of I.P.C., and thereby the accused committed the abetment of such suicide by his wife which is punishable under Section 306 of I.P.C.

11. The witnesses examined as P.Ws. 4 to 6 are neighbours of the accused and the deceased Santhi. The learned Government Advocate appearing on behalf of the Public Prosecutor contended that the evidence of P.Ws. 4 to 6 will clinch the fact that the deceased Santhi was beaten by the accused and she was ill treated by the accused and thereby the accused induced the deceased Santhi to commit suicide. The learned counsel for the appellant repudiated the above argument of the learned Government Advocate and stated that the testimony of P.Ws. 4 to 6 is discrepant and far from satisfactory. P.W. 4 Mariammal had stated in her Chief Examination that prior to the occurrence, there was quarrel between the accused and his wife Santhi and she heard the cry of the deceased Santhi and she has also seen the beating of the deceased by the accused and the crying of the deceased Santhi and thereafter the accused closed the door of his house and for ten minutes there was silence. But during her cross-examination P.W. 4 Mariammal would state that the accused came there to his house only after the body of the deceased Santhi was brought down. At any rate P.W. 4 Mariammal candidly admitted during her cross-examination that when she was examined by the Revenue Divisional Officer P.W. 8 Subramanian, she stated that she had seen the beating of the deceased Santhi by the accused and her crying. Her statement before the Revenue Divisional Officer is also marked as Ex. D-3 in this case. In the statement given earlier by the very same, witness P.W. 4 Mariammal under Ex. D-3 she would state as follows :-

(Vernacular matter omitted) Thus the statement of P.W. 4 Mariammal given before the Revenue Divisional Officer as early as on 24-5-1988 under Ex. D-3 is quite contra to the version as spoken to by her in the witness-box before the trial Court. As such the testimony of P.W. 4 Mariammal is not entitled to credence in this case.

12. So also P.W. 5 Chellammal stated before the trial Court that she heard the noise of the deceased Santhi and the accused told Santhi that he would beat her and kill her and later on the accused closed the door of the house. On the contrary P.W. 5 Chellammal had also given a statement similar to that of P.W. 4 Madammal before the Revenue Divisional Officer under Ex. D-3. In other words, the testimony of P.W. 5 Chellammal before the trial Court is altogether different from the statement given by her before the Revenue Divisional Officer P.W. 8 Subramaniam as early as on 24-5-1988 under Ex. D-3. So the evidence of P.W. 5 Chellammal is also not entitled to credibility in this case.

13. Likewise P.W. 6 Panchavarnam stated in the witness-box before the trial Court that she heard the noise in the house of Santhi and she went there and saw through the window that the deceased Santhi was weeping and she called Santhi but she did not speak to her, and the accused was also present at that time, and the door was closed. But when she was examined by the Revenue Divisional Officer on 24-5-1988, she has stated in Ex. D-4 in the following words in Tamil :-

(Vernacular matter omitted) Thus the statement of P.W. 6 Panchavarnam given before the Revenue Divisional Officer is not in conformity with the evidence tendered by her before the trial Court. Her statement before the Revenue Divisional Officer is contradictory to her testimony in the witness-box before the lower Court. Hence the evidence of P.W. 6 Panchavarnam is also not entitled to reliance in this case.

14. None of the ingredients of the offence of abetment of suicide by the accused are available in this case. No witness speaks about the positive step taken by the accused or the instigation by the accused to commit the suicide by his wife Santhi. To prove the offence under Section 498(A) of I.P.C. there must be wilful conduct by the accused and there must be unlawful demand. These salient features of the offence under Section 498(A) of I.P.C. are not available in the evidence of P.Ws. 4 to 6 examined in this case before the trial Court. There is no nexus between cruelty neted out to the accused Santhi and the suicide committed by Santhi. There is acceptable evidence in regard to actual abetment of committing suicide of Santhi by the accused. Each and every misunderstanding or petty quarrel between the husband and wife cannot be sought to be brought within the term “Cruelty” contemplated under Section 498(A)of I.P.C. On the available facts, it is very difficult to hold that the proximate cause which led the deceased Santhi committing suicide could be stated to be the wilful conduct on the part of the accused, who had driven the deceased Santhi to commit suicide. From the evidence of P.Ws. 4 to 6 who are said to be the only eye-witnesses of this occurrence, it transpires that there were petty quarrel between them on the date of occurrence. Certainly these petty quarrel cannot be taken to be cruelty so as to punish the accused under Section 498(A) of I.P.C.

15. P.W. 1 Sudalaimuthu is none other than the father of the deceased and P.W. 3 Kunjammal is the mother of the deceased Santhi, and they came to the scene of occurrence much later. They did not have any personal knowledge about the events that took place in the morning in the house of the accused which led to the suicide being committed by the deceased Santhi. However they would state that very often the accused used to ill-treat his wife, the deceased Santhi, and the accused used to beat their daughter Santhi prior to the occurrence. These quarrels between the accused and the deceased Santhi prior to the occurrence and the ill treatment and the harrassment of the deceased Santhi by the accused before the occurrence cannot be the foundation for conviction under Section 306 read with Section 498(A) of I.P.C. Under the explanation to Section 498(A) of I.P.C., “cruelty” is stated to be the wilful conduct, which is of such nature as is likely to drive the deceased Santhi to commit suicide. Mere torture or ill-treatment as spoken to by P.Ws. 1 and 3 or demand for dowry or for property is not cruelty. A reasonable nexus has to be established between the cruelty and the suicide of the woman in order to make good the offence of cruelty. It is only where the harassment was shown to have been committed for the purpose of coercing a woman to meet the demands, then it amounts to cruelty which is punishable under Section 498(A) of I.P.C. There is no material in the testimony of P.Ws. 1 and 3 to suggest that any positive step was taken by the accused in this case to induce the deceased Santhi to commit suicide.

The evidence of P.Ws. 1 and 3 does not disclose that there was harassment on account of dowry or for property.

16. The complaint given by P.W. 1 Sudalaimuthu in Melur Police Station on 23-5-1988 under Ex. P-2 is silent about the ill treatment of torture meted out to the deceased Santhi by her husband viz., the accused herein. In other words there is no reference to cruelty or harassment of the deceased Santhi by the accused prior to the occurrence in the complaint marked as Ex. P-2. The only reference in Ex. P-2 against the accuser is in Tamil as follows :

(Vernacular matter omitted) Thus P.W. 1 Sudalaimuthu in his complaint under Ex. P-2 on 23-5-1988 has stated that the accused requested him to give her second daughter in marriage to the brother of the accused, and P.W. 1 Sudalaimuthu refused to comply with the said request and thereafter the accused ill-treated his wife Santhi, and ultimately Santhi died because of the ill-treatment. So there was no harassment of the deceased Santhi by the accused on account of dowry or property. At any rate the demand made by the accused to give the second daughter of P.W. 1 Sudalaimuthu in marriage to his brother is also not the immediate cause or the proximate cause which lead to the committing of suicide by Santhi. In those circumstances, the testimony of P.W. 1 Sudalaimuthu and P.W. 3 Kunjammal is also not helpful to substantiate the accusation that the accused is guilty of the offence under Section 306 read with Section 498(A) of I.P.C.

17. One another significant circumstance in favour of the accused is that Easwari, who helped the deceased Santhi in her domestic affairs, was also present at the time of the occurrence and she was not examined in this case as a witness on the side of the prosecution. She is a material witness. She was cited as one of the witnesses in the charge-sheet of the prosecution. Yet the prosecution had not chosen to examine her. There is no explanation, much less any plausible explanation, forthcoming on the date of the prosecution for the non-examination of Easwari. In such circumstances, the non-examination of Easwari is fatal to the prosecution case.

18. It is also relevant to note that during the inquest conducted by the Revenue Divisional Officer examined as P.W. 8 Subramanian, the Panchayatdars gave the verdict that the deceased Santhi committed suicide out of frustration in life. The inquest report on the dead body of Santhi conducted by the Revenue Divisional Officer is marked as Ex. P-6 in this case. So the verdict of the panchayatdars during the inquest also will not lend any support to the version of the prosecution that the accused is guilty of the offence under Section 306 read with Section 498(A) of I.P.C.

19. Considering the above facts and circumstances of the case, I am to hold that this appeal has to be allowed, and the judgment of conviction and sentence passed by the 1st Additional Sessions Judge, Madurai in Sessions Case No. 155 of 1989 on 16-8-1989 is set aside, and the Appellant/Accused is acquitted of the offence under Section 306 read with Section 498(A) of I.P.C., and consequently I answer this point in favour of the Appellant/Accused.

20. In the result the appeal is allowed. The judgment of conviction and sentence passed by the learned 1st Additional Sessions Judge at Madurai in Sessions Case No. 155 of 1989 dated 16-8-1989 is set aside. The Appellant/Accused is acquitted of the offence under Section 306 read with Section 498(A) of I.P.C. The bail bonds executed by the Appellant/Accused are hereby cancelled.

21. Appeal allowed.

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