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Abudhageer vs State on 27 April, 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 13/04/2019

DATED : 27.04.2019

CORAM

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

CRL.A.No.244 of 2009

Abudhageer : Appellant/Accused
Vs.
State,
Represented by the
Inspector of Police
All Women Police Station (West)
Coimbatore.
(Crime No. 17 of 2007) : Respondent/Complainant

PRAYER: Appeal is filed under Section 374(2) of the Code of Criminal
Procedure against the Judgement dated 23.04.2009 made in S.C.No.
65 of 2008, on the file of the Sessions Judge, Mahila Court, Court of
the Sessions of the Coimbatore Division.
***
For Appellant : Ms.P.Lavanya
for J.Franklin

For Respondent : Ms. S. Thankira
Government Advocate (Crl. Side)

JUDGMENT

This appeal has been filed against the Judgment dated

23.04.2009 in S.C.No. 65 of 2008, on the file of the Sessions Judge,

Mahila Court, Court of the Sessions of the Coimbatore Division.

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2. The Sessions Court, had convicted the appellant/accused

Abudhageer in S.C.No. 55 of 2008 by Judgement dated 23.04.2009 for

commission of offences punishable under Section 498-A IPC and

under Section 306 IPC and had sentenced him to undergo rigorous

imprisonment for three years and fine of Rs.1000/-; in default simple

imprisonment for one year for offence under Section 498-A IPC and

rigorous imprisonment for 10 years and fine of Rs.1,000/- in default

simple imprisonment for one year for offence under Section 306 IPC.

It was directed that the period of sentence shall run concurrently.

3. The appellant is an appeal against the said Judgement.

4. The Inspector of Police, All Women Police Station (West)

Coimbatore, had filed a final report in Crime No. 17 of 2007 charging

the accused with commission of the offence punishable under Section

498-A IPC and under Section 306 IPC with relation to the death by

burn injuries of his wife Pousiya Begum on 10.03.2007.

5. The Inspector of Police, in her final report stated that the

accused had married the deceased Pousiya Begum some 12 years

prior to 06.03.2007. The accused was often under the influence of

liquor and quarrelled with his wife. He constructed a house and

incurred debts. He demanded the deceased to bring money from her

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sisters/brother. He ill-treated her. On 04.03.2007 he demanded her to

bring money from her brother-in-law by pledging the xerox copy of

the sale deed of the property. The deceased refused. In the

intervening night between 05.03.2007 and 06.03.2007, he

continuously ill-treated and humiliated her and scolded her stating

ePn a y;yhk; vJf;F ca p N u h L ,Uf;f , xd; W nrj;J g;N g h ,y;iyn a d; w h y; F o e ;ijfisf;

$l;bf;fpl;L cd; m g; g h f pl;lNa Ngh a;tp L ” and also gave her a kerosene can and

match box and instigated her to pour kerosene over herself and light

the match. Under such instigation and aid, she poured kerosene and

ignited the match. She suffered extensive burn injuries and died on

10.03.2007 at Coimbatore Government Hospital.

6. The Judicial Magistrate No.I, Coimbatore, committed the

case to the Court of Sessions and the Principal Sessions Judge,

Coimbatore, made over the case to the Mahila Court, Coimbatore.

7. The Accused appeared before the Mahila Court,

Coimbatore and charges were framed under Section 498-A IPC and

under Section 306 IPC. The accused denied the charges and claimed

to be tried.

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8. The learned Mahila Court Judge then invited the

prosecution to lead evidence and prove the charges. Accordingly,

during trial, the prosecution examined 15 witnesses as PW-1 to PW-

15. They also filed 14 Exhibits as Exs. P-1 to P-14. They also

produced two material objects as MO-1 and MO-2. On conclusion of

trial, the incriminating portion of the evidence was put to the accused

under Section 313 Cr.P.C. His statements were recorded. On the

side of the accused, one witness was examined as DW-1. Thereafter,

upon hearing arguments, the learned Mahila Court Judge held that

the prosecution had proved the charges beyond reasonable doubt and

convicted the accused and imposed sentences as aforsaid.

9. The learned Sessions Judge found, as a fact, that the

accused was addicted to alcohol and had also caused ill-treatment and

cruelty to his wife. He also demanded money on many occasions. The

accused had also asked PW-5 Sulaekha, the elder sister of the

deceased and PW-7, her husband Jaffar Ali, to arrange for loan of

Rs.1/- lakh over his property to settle his debts due to PW-10

Achuthan Bai. Since the property was already under mortgage, PW-5

and PW-7 expressed inability to arrange for loan. This led the

accused to cause further ill-treatment of his wife.

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10. The learned Mahila Court Judge also found as a fact, that

in the intervening night between 05.03.2007 and 06.03.2007, the

deceased Pousiya Begum poured kerosene over her body and set

herself on fire and suffered burn injuries. The accused was present at

that time. He however made efforts to extinguish the fire. He also

suffered burn injuries. The neighbours helped to finally extinguish the

fire and thereafter the accused and the deceased were shifted to the

hospital. The Judicial Magistrate No. VI, Coimbatore recorded the

dying declaration of the deceased Pousiya Begum. In the dying

declaration marked as Ex. P-9 the deceased had stated as follows:-

“vd; fzth; jpdK k; Foj;Jtpl;L tUthh;. v’;f tPl;oy;.
vd; kr;rhDf;F k; brhj;J rk;k e;jk hf vd; fzth; vd;id jpl;o.
vd;d plk; rz;ilg;ng h Lt h h;. Vd;id[ak; vd; FH e;ijfisa[k; tPl;il
tpl;L bt s p n a nghf brh d;d h h;. Xnu rz;il. v’;fhtJ ngh a p
rht[ vd;w h h ; e P n a vd;idf; bfhy; vd;n w d ;. mjw; F vd;
fzth; e P n a rht[ vd;w h h;. e h d; mUf p y; ,Ue;j kz;bzz;b z a;
vLj;J C w; w p f; bf h z;nld;. m’;nf ,Ue;j m L g; g p y ; ,Ue;j
jPa p y; itj;J bfhz;nld;. vd; fzth; vd;id jpl;of;bfhz;nl
,Uf;fp w h h; vd W eh n d jP itj;Jf;bfhz;nld;. .”

11. Pousiya Beguam died on 10.03.2007 in the hospital.

Pursuant to investigation in FIR in Cr.No. 17 of 2007, the Inspector of

Police, All Women Police Station (West), filed a final report against

the accused charging him with commission of offence under Section

306 IPC and under Section 498-A IPC.

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12. During trial, PW-1, Ali Ahammed, the father of the

deceased was examined. PW-2 Dr.V.S.Venkatesan; PW-3

Dr.Viswanathan; PW-4 Dr.Diraviyaraj, PW-8 Dr.Saravana Kumar and

PW-12 Dr.Thirumalaiswamy, Medical Officers were examined; PW-5

Sulekha, elder sister; PW-6 Faizal, younger brother; and PW-7 Jaffar

Ali, the brother-in-law of the deceased, were also examined. PW-13

Ravi Shankar, was the Judicial Magistrate No. VI, Coimbatore, who

recorded the dying declaration of the deceased. PW-15 was Inspector

of Police, who filed the final report. Among the documents marked,

Exs. P-1 and P-2 were the postmortem certificate and its final opinion;

Ex.P-3 and P-4 were the Accident Register copies of the deceased and

the accused; Ex.P-7 was the statement of the deceased; Ex.P-8 was

the medical certificate issued by PW-12 Dr.Thirumalaiswamy

recording fit mental status to give a dying declaration; Ex.P-9 was the

dying declaration of Pousiya Begum; Ex.P-10 was the First

Information Report; and Ex.P-13 was the charge alteration report

consequent to death of Pousiya Begum. The plastic can and match box

stick were produced as MO-1 and MO-2. The daughter Mofia, of the

accused and deceased was examined as DW-1. The learned Mahila

Court Judge analysed the oral and documentary evidence and held

that the evidence of PW-1 clearly revealed that the accused was

addicted to alcohol and often quarrelled with his wife demanding her

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to bring Rs.50,000/- from her parents in order to clear the debts

incurred by him. It was also held that it had been established from

the evidence of PW-1 that on 04.03.2007, the accused had asked for a

loan of Rs.1/- lakh from PW-5 when he attended a marriage

engagement function. Since the demand was not met, he quarrelled

with the deceased in the intervening night between 05.03.2007 and

06.03.2007. The learned Mahila Court Judge held that the evidence

further established that the accused instigated the deceased to

commit suicide. The learned Mahila Court Judge relied on such

evidence as also the dying declaration of the Pousiya Begum. The

evidence of PW-1 was corroborated on all grounds by PW-5 Sulekha,

the elder sister of the deceased. She also spoke about the marriage

engagement of her daughter Shameena on 04.03.2007 and that the

accused demanded her to pay Rs.1/- lakh to clear his debts. She

received information on 06.03.2007 from PW-1 that her younger sister

had set herself on fire and had been admitted to hospital. She also

spoke to her sister who informed about the circumstances

surrounding the burn injuries. The witness also withstood cross

examination. The learned Mahila Court Judge also found that the

evident of PW-6, brother of the deceased was also in confirmation

with the evidence of PW-1 and PW-5. PW-7 Jaffar Ali during his

evidence had also confirmed about the fact that the accused had

demanded loan of Rs.1/- lakh to settle his debts.

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13. On the strength of the above evidence, the learned

Mahila Court Judge held that there was a demand for Rs.1/- lakh from

PW-5 and PW-7 and since they had hesitated in advancing the money,

the accused quarrelled with the deceased and instigated her to

commit suicide. It was also stated that this evidence was in

conformity with the dying declaration Ex.P7 recorded by PW-13

Judicial Magistrate No. VI, Coimbatore.

14. In order to establish that the accused was having

financial debts, prosecution had also examined Achuthan Bhai, PW-10.

He stated in his evidence that the accused had borrowed a sum of

Rs.40,000/- and had created equitable mortgage of his property. He

had also executed an agreement of sale with respect to the property.

The accused did not pay the interest. He stated that on the date of

the incident, the mortgage was subsisting.

15. PW-3 Dr.Viswanathan was on duty at MS-II Burn Ward,

Coimbatore Medical College on 06.03.2007. He examined the

accused, who suffered burn injuries over the leg and thighs which the

accused stated he suffered while trying to extinguish the fire on the

body of his wife. This evidence established the fact that the accused

was present when the deceased set herself on fire. PW-12

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Dr.Thirumalaisamy was on duty in MS-II Burns Ward, Coimbatore

Medical College when the deceased was admitted on 06.08.2007 at

02.05 hours. He examined the deceased and sent a requisition to the

Judicial Magistrate No.VI, Coimbatore, to record the dying

declaration. PW-13 Ravi Shankar, Judicial Magistrate No.VI,

Coimbatore, reached the ward at 6.50 a.m., and obtained Ex.P-8

certificate from PW-12 Dr.Thirumalaisamy that Pousiya Begum was

conscious to give dying declaration. He then recorded the dying

declaration Ex.P-9 in the presence of PW-12, Dr.Thirumalaisamy. In

the dying declaration, which had been extracted above, the deceased

stated that the accused quarrelled with her and asked her to go and

the die and to get lost. She then asked her husband to do away with

her and to kill her. She then poured kerosene over her body and set

her body on fire. She stated in the dying declaration that she

committed suicide because of his rude behaviour and cruel activities.

The evidence of PWs-12 and 13 were relied on by the learned Mahila

Court.

16. PW-2 Dr.V.S.Venkatesan stated that on 10.03.2007

when he examined Pousiya Begum in the hospital he found her dead

at 07.05 hours. He intimated the death to the outpost police station.

PW-4 Dr.Diraviyaraj conducted autopsy over the dead body. He gave

final opinion that she died due to extensive burns sustained by her. He

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issued Ex.P-1 postmortem certificate and Ex.P-2 final opinion.

17. PW-15 Sukumari, Inspector of Police conducted inquest

over the body. When Pousiya Begum was undergoing treatment, PW-

11 Mohan, Head Constable recorded Ex.P-7, statement. On the basis

of the said statement, a FIR had been registered under Sectionsection 498-A

IPC and 309 SectionIPC. PW-14 Praballa, Sub Inspector of Police, prepared

Ex.P-5 observation mahazar in the scene of occurrence and also

prepared Ex.P0-11 rough sketch. She seized MO-1 black colour can

containing kerosene and MO-2 match box with stick under Ex.P-6,

Recovery Mahazar. She also examined the deceased at Coimbatore

Medical College and recorded her statement. The learned Mahila

Court Judge held that the statements recorded by PW-14 was in

conformity with Ex.P-7 statement recorded by PW-11 Mohan, Head

Constable and with Ex.P-9 is the dying declaration. The evidence of

PW-14 and the statements of the deceased corroborated the evidence

of PWs-1, 4, 5 and 6 in all material aspects.

18. The accused had examined his own minor daughter

Mofia as DW-1. She stated that she was watching TV along with the

accused on 05.03.2007 at 11.30 p.m. She noticed smoke coming from

the bathroom. She rushed there with the accused and they noticed

the deceased burning with fire over the head. She stated that the

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accused extinguished the fire and then took her mother to the hospital

for treatment. She stated that her mother suffered from fits and

therefore, suffered pain and suffering and had expressed desire not to

live further. The learned Mahila Court Judge however disbelieved the

evidence of DW-1, who was a child studying in 6th standard on the

date of occurrence. It was held that it was improbable that she would

be watching TV till midnight. It was also observed that the accused

did not examine any of the neighbours or even the grandmother who

was also present to corroborate the version of DW-1. During cross

examination DW-1 stated that she was in bed and woke up on hearing

the cry of the deceased. This was in direct contradiction to what she

stated in chief examination.

19. On the basis of the oral and documentary evidence as

stated above, the learned Mahila Court Judge convicted and sentence

the accused as stated for commission of offences under Section 498-A

IPC and 306 SectionIPC.

20. Heard arguments advanced by Ms.P.Lavanya, learned

counsel for the appellant/accused and Ms.S.Thankira, learned

Government Advocate (Crl. Side) for the respondent prosecution.

21. The learned counsel for the accused stated that PW-1

himself was a person with no means and was also living in a house

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which had been granted free by the Government. She therefore

stated that it was highly improbable that the accused would demand

dowry from the deceased when she had no resources for the same.

The learned counsel also stated that it had come on evidence that the

deceased suffered from fits and owing to such suffering had decided

to commit suicide. It was also pointed out that the accused was under

the influence of liquor and consequently urged that the exception

clause should be granted to him. The learned counsel also stated that

PW-1 had not given any complaint to the local Jamath to settle the

disputes between the deceased and the accused. It was stated that

there were no eye witnesses to the incident and the very fact that it

was the accused who took the deceased to the hospital and admitted

her would show that he actually wanted to save her and did not want

her to die. The learned counsel stated that the benefit of doubt should

be extended to the accused and the Appeal should be allowed.

22. Ms. S.Thankira, learned Government Advocate (Crl. Side)

on the other hand supported the Judgement of the trial Court and

stated that the learned Mahila Court Judge had analysed the evidence

thoroughly and correctly. She was emphatic that the prosecution had

proved the offence beyond reasonable doubt.

23. I have carefully considered the arguments advanced and

also the material records.

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24. The Accused Abudhageer had married the deceased

Pousiya Begum some 12 years prior to the incident. Originally, Cr.No.

17 of 2007 had been registered for commission of offence under

Section 498-A IPC and under Section 309 IPC. This was registered on

the basis of the statement of Pousiya Begum when she had been

admitted in hospital having suffered nearly 70% burn injuries owing

to self immolation. Her statement was recorded by PW-11 Mohan,

Head Constable. In the statement, she had stated that owing to

continuous quarrels and mental and physical torture and on direct

instigation from her husband, relating to demand of money to be

obtained from her sister to settle his existing debts in the intervening

night between 05.03.2007 and 06.03.2007, she had poured kerosene

over herself and lit herself. Pousiya Begum died on 10.03.2007,

and, as would be evident from the statement of the medical officers

who examined her in hospital, owing to a direct cause of the burn

injuries suffered by her. Thereafter, an alteration report was filed

before the Magistrate Court and the provision of law in Cr.No. 17 of

2007 was altered from 309- SectionIPC to 306-SectionIPC.

25. PW-1 was the father of the deceased. He spoke about

the continuous quarrels and demands made by the accused from the

deceased. In his evidence, he stated as follows:-

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“jpUkzj;jp w; F gp w F vd J kfS k; vjph pt a[k;
re;njhrk hf ,Ue;jhh;/ gp d; d h; vjph pf;F kJ mU e ; J k ;

gHf;fk; V w;gl;L mjdh y; vjph pf; F k; vd J kf Sf;F k; rz;il
rr;rut[ V w; gl;L te;jJ/ Vjph p m of;fo gzk; nfl;L vd J kfis
tPl;o w; F mD g; g[thh;/ eh d; Ko e ;j m st[ vd J kf Sf;F gzk;
bfhLj;J fzth; tPl;o w; F mD g; g p a p U f;f p n w d ;/

vjph p tPL fl;oa tpjj;jpy; fld; Rik V w; gl;ljhy;
vd J kf s plk; U:/5000 /- nfl;L tPl;o w; F mD g; g pitj;jhh;/
vjph p nfl;l gzk; bfh Lf;F k; msptp w;F vd;d plk; trjp
nghjtpy;iy vd;gjh y; vd; kfis kP z; L k; vjph p tPl;o w; F
brd; W mDr h pj;J bgh W j; J bfhz;o U vd Mny hrid Twp
m D g; g pitj;njd;/ ,jw;fpilapy; vd J bg h p a kfs; Rn yfh
bg s r p f h n fj;ij ghh;f;f brd; w p U e ;j n g h J vjph p jdf;F tPL
fl;oatpj;jpy; fld; Vw; gl;L s s j h ft[k; tPl;o d; gj;jpuj;ij
itj;Jf;bfhz;L U:gh a; 1.00.000 /- gzk; bfh Lf;f ntz;L b k d
nfl;L s; s s h ;/ mjw; F gzk; bfhL g; g J rk;k e;jk hf
tprhh pj;Jtpl;L Vw; g h L bra; J jUtjhf brhy;y p vd J kfs;
ngh a;tpl;lhh;/ 04/03/07 m d; W g[s p a k ; gl; o a p y ;
e pr;rajh h;j;jk; eilb g w ; w J/ mj w; F vjph p a[k; vd J kf s;
bg s r p f ht[k; brd; w p U e ;j h h;f s;/ vjph p jd;Dld;
vLj;Jr;br d; w g[fig;gl Mtzj;ij kl;Lnk vLj;Jr;br d; W mjid
mth;f s pl k; fhz;g pj;J gzk; Vw; g h L bra; J jUk;go nfl;lhh;/
g[ifg;gl efiy itj;Jf;bfhz;L gzk; juKo a h J vd e pjp
e p W t dj;jhh; Tw pt pl;lhh;f s;.

26. PW-5 Sulekha was the elder sister of the deceased and

PW-7 Jaffar Ali was the husband of PW-5. Pw-5 in her evidence stated

as follows:-

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“vjph p kJ mU e ;jptpl;L vd J j’;ifaplk; rz;il ngh Lt J
tHf;fk;/ vjph p F oj;Jtpl;L rz;il ngh L k; tpguj;ij eh d; vd J j’;ifia
nehpy; re;jpf;F k; rka’;fs p y; vd;d plk; Tw p a p U f;fp w h h ;/
vd J jhah h; ca p n u h L ,y;iy/ ,w e; J 7 Mz;Lf S f; F nky; Mfp w J/
vd J j’;if Fiwfi s TW k;n g h J jhah h; ,y;yhjjhy; jdJ je;ij[ak;
tajhdth; vd;gjh y; mDr h pj; J thG k; g o vd J j’;iff;F m w p t[iu
Twp n d d ;/ 04/03/07 m d; W vd J brh e;j Ch p y; vd J kfd;
brk p d h t p w ; F jpUkz epr;rajh h;j;jk; bra;J itj;njhk;/ m e;j
jpdj;jp w; F 10 e hl;f Sf; F Kd;d h; eh d; vd J bg h p a j’;if
Ehh;$fh D k; vd J j’;if bg s r p f h n g f k; tPl;o w; F
brd;w p U e ; nj h k;/ mJ rkak; M$h; vjph p a[k; tPl;oy;
,Ue;jhh;/ m g; n g h J vjph p jhd; tPL fl;oa tpjj;jpy; jdf;F
U:/1.00.000 /- fld; c s; sj hft[k; flid jpUg;g p br Yj;Jtj w; F fldhf
U:1.00.000 /- ntz;L b k d vd;d plk; nfl;lhh; / eh d; vd J kf Sf; F
jpUkz k; itj;J s; s tptu’;fis Tw p vd;d h y; bfh Lf;fK o a h J ntW
ahh plk ht J tprhh pj;J TW k;g o brh d;n d d;/ gj;jpuj;ij itj;J fld;
bfhLf;F k; tptuk; vdf;F bjhp a h J vd; W k; m e;j tptuj;ij vd J
fztiu tprhh pj;J mjd;g p w F jfty; brh y; Ytjhf eh d; vjph p a pl k;
m g;n g h J Tw p n d d ;/ 04/03/07 m d; W vjph p jdJ j’;if kw; W k;
FH e;ija[ld; FL k; g rfpjkhf vd J kfs; e pr;rajhh;j;jj;jpw; F
te;jhhf s;/ m g;n g h J vjph p tPl;o d; mry; gj;jpuk; fld;
bfhLj;jth; trk; c s; sj hft[k; jd;dplk; g[ifg;gl efy; kl;Lnk
c s; sj hft[k; mijitj;J gzk; fld; jUk;g o nfl;lhh;/ g[ifg;gl efiy
bfhLj;J fld; nfl;fKo a h J vd; W k;. fld; bg w; Wj;jUtJ rk;k e;jkhf
10 jpd’;fSf;F gp w F jfty; bjhptp g; gjhf m d;iw aj p d k; eh d;
brh d;n d d ;/

eh d; kUj;Jtkid a p y; rpfpr;irap y p U e ; J vd J j’;ifia
re;jpj;J ngrp n d d ;/ vd J j’;ifaplk; vg;g o el e;jJ vd; W nfl;nld;/
mjw; F vd J j’;if jhd; vjph p a pl k; vd;d plk; gzk; bg w; W jUtjhf
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cj;jputhjk; m s pj; J te;jjhft[k; Mdh y; gzk; nfl;L ,y;iyb a d
jpUg;g p miHj;Jt e; Jt pl;ljhft[k; jdf;F mtkh d k ; V w;gl;ljhy;
vjph p vd J j’;ifia xU FH e;ijia miHj;Jf;bfh z;L bg w; n w h h ;
tPl;o w; F brd; Wt plntz;L b k d ; W k ; ,y;iyb a d; w h y ; brj;J
bjhiy e; Jt p L vd; W brh d;djhft[k; brh d; d h h ;/ vjph p nfl;l gzj;ij
vd J m g;g ht plk p U e ; J th’;fp juKo a h J vd;gjhy; eh d; ,’;nfna
brj;Jn g h f p n w d ; vd vjph p a pl k; brh d; djhft[k; mjw; F vjph p
rP b k z; b z a ; nfid vLj;Jf;bfh Lj;J vz;bz a; C w; w p bfhz;L
brd;wjhft[k; mjdh y; jhd; rP b k z; b z a ; clyp y; C w; w p f; bf h z;L
gw; witj;Jf;bfh z;ljhft[k; jdJ clyp y; jPg;g p oj; J vhp e ;jn g h J
jz;zP h; C w; w p midj;jhft[k; vjph p jdJ clypy; ,Ue;j jPia
mizg; gj w; F mtiu fl;og;g p o j;jn g h J mtu J clyp y; jPf;fha k;
V w; gl;l tptuj;ij vd;d plk; brh d;d h h;;/ vd J j’;if rprpr;irf;fhf
kUj;jtkida p y; mD kjpf;fg;gl;lJn g h d ; W vjph p rpfpr;irf;fhf
m nj kUj;Jtkid a p y ; mD kjpf;fg;gl;lhh;/ kUj;jJtkid a p y ;
rpfpr;ifap y p U e ;j vd J j’;if 10/3/07 m d; W rpfpr;ir
gy d s p f;ffh k y; ,w e; Jt pl;lhh;/ vd J j’;if 9/3/07 tiu
ey;y Ki w a p y ; ngrpt e;jh h;/”

27. PW-7 also corroborated the evidence of PW-5. He

stated as follows:-

4/3/07 m d; W vd J kfs p d ; epr;rajh hj;jj;jpw; F vd J
tPl;o w; F vjpa[k; bg s r pf h n g f K k ; te;jpU e;jh h;f s;/ vd J
tPl;o w; F te;jpU e;jn g h J tPl;L g[ifg;g gl ef y; gj;jpuj;ij bfhLj;J
mriy itj;J Vw;fd nt fld; bg w; w p U g ; gj hft[k; ,ij itj;J fld;
bg w; Wj;jUk;g o a[ k; nfl;lhh;/ gj;jpu e f y; g[ifg;gl efy;
vd;gjh Y k ; V w;fd nt fld; bg w; w p U g ; gj h y; fld;

bfh L g; g g h h ;f s h vd; W tprhh pj;J brh y;tjhf brh d;n d d;/

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17

28. It had been pointed out by the learned counsel for the

accused that the accused tried to extinguish the fire and as a result of

which he also suffered burn injuries and that it was he who had taken

the deceased to the hospital. The charge against the accused is one

under Section 498-A IPC and 306 SectionIPC. The charges under these

Sections cannot be brushed away merely because the husband on

seeing his wife burning tried to extinguish the fire. The charges arose

since he abetted and instigated by acts of cruelty, Pousiya Begum to

pour kerosene over herself and immolate herself. Whether that act

was a direct result of the mental and physical cruelty inflicted by the

accused and was abetted by him has to be examined by the Court.

The subsequent conduct is of not much relevance in these cases since

the offence charged had been committed by performing the acts of

cruelty leading to incitement and abetment to commit suicide. The

very fact that the deceased took that extreme step as a direct result of

the acts of cruelty and abetment by the accused is sufficient to uphold

conviction under Section 498-A IPC and under Section 306 IPC.

29. In the present case, the prosecution had occasion to

request the Judicial Magistrate No. VI, Coimbatore, who had been

examined as PW-13, to record the dying declaration of the deceased.

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18

In the dying declaration, the deceased had stated as follows:-

vd; fzth; jpdK k; Foj;Jtpl;L tUthh;. v’;f tPl;oy;.
vd; kr;rhDf;F k; brhj;J rk;k e;jk hf vd; fzth; vd;id jpl;o.
vd;d plk; rz;ilg;ng h Lt h h;. Vd;id[ak; vd; FH e;ijfisa[k; tPl;il
tpl;L bt s p n a nghf brh d;d h h;. Xnu rz;il. v’;fhtJ ngh a p rht[
vd; w h h; e P n a vd;idf; bfhy; vd;n w d ;. mjw; F vd; fzth;
e P n a rht[ vd; w h h ;. eh d; mUfp y; ,Ue;j kz;bz z; b z a; vLj;J
C w; w p f; bf h z;nld;. m’;nf ,Ue;j m L g; g p y ; ,Ue;j jPa p y; itj;J
bfhz;nld; . vd; fzth; vd;id jpl;of;bfh z;nl ,Uf;fp w h h; vd W
eh n d jP itj;Jf;bfhz;nld;.

30. A reading of the said dying declaration which had been

marked as Ex.P-9 would reveal that the deceased had very

categorically stated that the accused Abudhageer continuously abused

and scolded her, asked her and her children to get out of the house

and was continuously quarrelling with her and told her to go and die.

These factors have to be kept in mind with the further fact that when

she told him to kill her, he stated that she can die by herself. The

statement “ vd; fzth; ePNa rhT vd;whh” has been a direct cause for the

deceased to take the extreme step of pouring kerosene over herself

and immolating herself, and are words instigating suicide.

31. In AIR 1992 SC 1817 Smt. Paniben Vs. State of

Gujarat, the Hon’ble Supreme Court laid down the principles

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19

governing appreciation of a dying declaration. These have been

summarised as follows:-

“i. There is neither rule of law nor of
prudence that dying declaration cannot be
acted upon without corroboration. [See
Munnu Raja Anr. Vs. The State of
Madhya Pradesh (1976) 2 SCR 764)];

ii. If the Court is satisfied that the
dying declaration is true and voluntary it can
base conviction on it, without corroboration.
[See State of Uttar Pradesh Vs. Ram Sagar
Yadav and Ors. [AIR 1985 SC 416) and
Ramavati Devi Vs. State of Bihar (AIR 1983
SC 164)];

iii. The Court has to scrutinize the
dying declaration carefully and must ensure
that the declaration is not the result of tutoring,
prompting or imagination.

iv. Where the dying declaration is
suspicious, it should not be acted upon without
corroborative evidence (See Rasheed Beg Vs.
State of Madhya Pradesh (1974 (4)SCC

264)];

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20

v. Where the deceased was
unconscious and could never make any dying
declaration, the evidence with regard to it is to
be rejected. (See Kaka Singh – Vs. State of
M.P. (AIR 1982 SC 1021)];

vi. A dying declaration which suffers
from infirmity cannot from the basis of
conviction. {See Ram Manorath and Ors
-Vs- State of UP. (1981 (2) SCC 654);

vii. Merely because a dying declaration

does contain the detail as to the occurrence, it
is not to be rejected. {See: State of
Maharashtra Vs. Kriashnamurthi Laxmipati
Naidu (AIR 1981 SC 617)};

viii. Equally, merely because it is a
brief statement, it is not to be discarded. On

the contrary, the shortness of the statement
itself guarantees truth (See: Surajdeo Oza
and Ors Vs. State of Bihar (AIR 1979 SC
1505);

ix. Normally the Court in order to
satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks
up to the medical opinion. But where the eye-

witness said that the deceased was in a fit and
conscious state to make the dying declaration,
the medical opinion cannot prevail (See:

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21

SectionNanahau Ram and Anr. V. State of Madhya
Pradesh (AIR 1998 SC 912);

x. Where the prosecution version
differs from the version as given in the dying
declaration, the said declaration cannot be
acted upon (See: State of U.P. Vs. Madan
Mohan and Ors. (AIR 1989 SC 1519).

xi. Where there is more than one
statement in the nature of dying declaration,
one first in point of time must be preferred. Of
course, if the plurality of dying declaration
could be held to be trustworthy and reliable, it
has to be accepted. {See: Mohanlal
Gangaram Gehani Vs. State of Maharastra
(AIR 1982 SC 839) and Mohan Lal and Ors
Vs. State of Haryana (2007 (9) SCC 151)}.”

32. In the present case, PW-12 Dr.Thirumalaisamy had very

categorically made an endorsement that the deceased was conscious

and in a fit state of mind throughout recording of the dying

declaration. PW-13 the Judicial Magistrate No.VI, Coimbatore had

also personally verified her mental alertness by putting necessary

questions relating to the identity and surroundings before recording

the dying declaration. She was specifically informed that her

statement was being recorded and she gave her consent. PW-12

Dr.Thirumalaisamy had made the following endorsement in Ex.P-9,
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22

the dying declaration “patient was conscious and in a fit state of mind

through out recording dying declaration.”

33. It is thus seen that the deceased knew what was she

saying and what was being recorded. She was conscious. When she

was conscious, she stated that the continuous harassment by her

husband and his incitement telling her to die were the reasons why

she decided to self-immolate herself.

34. Section 498-A IPC is as follows:-

“498A. Husband or relative of husband of a
woman subjecting her to cruelty.—Whoever,
being the husband or the relative of the
husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for
a term which may extend to three years and
shall also be liable to fine. Explanation.—For the
purpose of this section, “cruelty” means—

(a)any wilful conduct which is of such a nature
as is likely to drive the woman to commit
suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical)
of the woman; or

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23

(b)harassment of the woman where such
harassment is with a view to coercing her or
any person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand.]”

35. Section 306 IPC is as follows:-

“306. Abetment of suicide.—If any
person commits suicide, whoever abets the
commission of such suicide, shall be punished
with imprisonment of either description for a
term which may extend to ten years, and shall
also be liable to fine. ”

36. It is seen that the ingredients for offence under Section

498-A IPC are that the conduct should be of such nature, which is

likely to drive the woman to commit suicide. In this case the conduct

of the accused in continuously quarrelling and in telling her to go to

die are themselves sufficient to drive any woman to commit suicide.

Telling his wife to go and die are words which can be categorised

inciting or abetting suicide, which is the ingredient essential for

offence under Section 306 IPC.

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24

37. In AIR 1990 SC 209 Gurbachan Singh Vs. Satpal

Singh it had been held that if the facts and circumstances establish

suicide and there is dowry demand, Section 306 IPC is attracted. It

was held as follows: “The first thing that is necessary for proving the

offence is the fact of suicide. Abetment is a separate and distinct

offence provided the thing abetted is an offence. Abetment does not

involve the actual commission of the crime abetted; it is a crime

apart.”

38. An analysis of the evidence reveals the following facts:

(i) the accused was addicted to liquor and was also in

financial difficulties;

(ii) the evidence of PW-10 proves the financial debts

incurred by the accused;

(iii) The evidence of PW-5 and PW-7, which are direct in

nature point out to the fact that the accused immediately required

Rs.1/- lakh to pay all the existing debts. He demanded this amount to

be raised by them on 04.03.2007.

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25

39. In the intervening night between 05.03.2007 and

06.03.2007, since PW-5 and PW-7 expressed inability to raise the

amount demanded on the basis of xerox copy of documents the

accused abused his wife and asked her to go and die. She committed

suicide by pouring kerosene over herself and lighting fire.

40. The dying declaration given by the deceased is

admissible evidence. PW-12 Dr.Thirumalaisamy had given a

certificate endorsing that she was in a fit state of mind to give the

dying declaration and that during the recording of the dying

declaration, she was conscious. In the dying declaration, she

specifically stated that because of cruelty and because of instigation

and abetment, she committed suicide. The ingredients of both

Sections 498-A IPC and Section 306 IPC are satisfied.

41. In view of the said facts, I have no hesitation in

upholding the conviction of the accused for offence both under

Section 498-A IPC and under Section 306 IPC.

42. I Uphold the sentence imposed for commission of

offence under Section 498-A IPC. However, with respect to the

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26

sentence imposed for commission of offence under Section 306 IPC, I

hold that the fact that the accused tried to extinguish the fire,

suffered burn injuries and admitted the deceased in hospital are

mitigating factors to be considered. Consequently, I hold that

sentence of 3 years rigorous imprisonment and fine of Rs.1000/- in

default 1 year simple imprisonment would meet the ends of justice.

43. In view of the above reasons, I hold that there are no

merits in the Appeal and the same is therefore dismissed. The

conviction under Section 498-A IPC and under Section 306 IPC are

confirmed. The sentence of 3 years rigorous imprisonment and fine of

Rs.1000/- in default 1 year simple imprisonment for offence under

Section 498-A IPC is confirmed. The sentence of 10 years rigorous

imprisonment for offence under Section 306 IPC alone is modified to 3

years rigorous imprisonment. The finE amount of Rs.1000/- and

default clause of 1 year simple imprisonment is confirmed for offence

under Section 306 IPC. Both sentences are to run concurrently. The

Trial Court is directed to take the accused into custody and remand

him forthwith to serve the remaining part of the sentence.

                      vsg                                                      27.04.2019

Index: Yes/No
Internet: Yes/No

Speaking / Non Speaking Order
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27

C.V.KARTHIKEYAN, J.,

vsg

To

1. Sessions Judge, Mahila Court, Court of the Sessions of the
Coimbatore Division.

2. Inspector of Police
All Women Police Station (West)
Coimbatore.

Pre-delivery Judgement made in

CRL.A.No.244 of 2009

27.04.2019

http://www.judis.nic.in

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