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Ananda Sekaran-vs-State By Inspector Of Police on 7 December, 2006

Madras High Court Ananda Sekaran-vs-State By Inspector Of Police on 7 December, 2006
Bench: M Thanikachalam

JUDGMENT

1. The accused in S.C. No. 216 of 1998 on the file of the III Addl. Sessions Judge, Chennai having suffered conviction and sentence impugned the same in this appeal.

2. The accused and the deceased by name Vijayalakshmi were united together by marriage on 29.6.1987. They gave birth to children also. After 10 years, i.e. on 17.8.1997 at about 5.00 p.m. Vijayalakshmi committed suicide in the matrimonial home and the attempt by the husband viz., the accused to prevent the same and the further attempt to save her also taking to hospital ended in vain. The matter was reported by the accused himself, on which basis a case was registered, investigated, which brought to surface on the basis of the examination of witness, that the accused should have abetted the deceased to committ suicide. On that basis, a final report came to be filed directing the accused to face the offence under Section 306 IPC by the respondent police, which was committed to Sessions Court for trial, upon prima facie satisfaction.

3. The learned IIIrd Addl. Sessions Judge, Chennai perusing the materials, satisfying himself about the accusation against the accused, framed a charge under Section 306 IPC against the accused, for which the accused refused to plead guilty, questioning the correctness of the prosecution.

4. The prosecution to establish the guilt of the accused beyond reasonable doubt and in order to bring home the guilt of the accused marched in 13 witnesses seeking aid from 11 documents and 3 material objects.

5. The learned trial Judge, while evaluating, scanning and assessing the above materials in the touchstone of the established principles of law, felt, only at the instigation of the accused/appellant i.e. only on the basis of the abetment committed by him, preceded by some cruelty, whether it is mental or physical, and came to the conclusion that the wife should have committed suicide, for which the accused should be held responsible. Thus concluding convicting the accused under Section 306 IPC sentenced him to undergo five years R.I. and to pay a fine of Rs. 50,000/- in default to undergo S.I. for six months, which is under challenge in this appeal.

6. Heard the learned Senior Counsel, Mr. T. Sudanthiram and the learned Government Advocate (Crl. Side), Mr. J.c. Durairaj.

7. Mr. T. Sudanthiram, the learned Senior Counsel appearing for the appellant would submit,

(i) that the incident narrated in the final report, is not suicide, whereas in the accidental fire, sustaining injuries, wife succumbed to the same later, for which the husband cannot be blamed;

(ii) that at the earliest point of time when the matter was reported to the doctor, the facts of accident were reported even by the deceased herself, not properly taken into account, resulting erroneous conviction and

(iii) that even assuming it is not an accident, and the deceased committed suicide by pouring kerosene setting ablaze that was not due to the abetment said to have been committed by the accused, since there was no intention and mens rea on the part of the accused to induce or instigate the deceased to commit suicide taking an extreme step to end her life.

He would further submit, that unfortunately, the trial Court has not properly considered all the above facts and therefore, the trial Court’s judgment, which suffers with the above infirmities should be set aside, setting right the mistake committed by the learned trial Judge.

8. Responding to the above submissions, the learned Government Advocate, Mr. J.C. Durairaj would submit, that there was no accident at all as claimed by the accused and it is established beyond all reasonable doubt, that the wife of the accused committed suicide, by pouring kerosene setting ablaze for which the accused alone should be blamed, which was properly considered by the trial Court, not warranting any disturbance by this Court and in this view, he fully supported the reasons assigned by the learned trial Judge, requesting the Court to dismiss the appeal.

9. Immediately after the incident, the accused took the injured wife to the hospital, where she was attended by Dr. Govindarajulu (PW 6). Before P.W. 6, as deposed by him and as recorded in Ex. P1, it appears at the instance of the deceased, entries were made in Ex. P. 1 as if she sustained burn injuries over her body when she tried to save her two year old daughter who was about to fall on the stove while she was filling kerosene in the burning stove at about 5.30 p.m. on 17.8.1997. The doctor also endorsed in Ex. P. 1 and has given evidence also as if the patient was conscious.

10. On the basis of the above evidence, which is produced by the prosecution itself, a submission was made by the learned Senior Counsel, Mr. T. Sudanthiram, that the incident must be accident, which is sought to be converted as abetment to commit suicide. Though the argument so advanced appears to be juicy, by casual reading; it may not be so, whereas it should be otherwise, while applying the mind and analysing under what circumstances the statement said to have been recorded, creating much doubt, since the same is also not supported by other evidence, whereas it is contradicted. Admittedly, the husband alone had admitted the wife and therefore, he should have been present at the time of the alleged statement. It is not known from the reading of Ex. P. 1 at whose instance the doctor has recorded the above statement. If the injury sustained by the deceased and the statement said to have been given by her to the subsequent doctor, tally with the averments in the above statement, then there is nothing wrong on the part of the Court, in accepting the same, as if it is an accident, which cannot be labeled as suicide, then leading to abetment etc. It is the trite law that the entries made by the doctor in the Accident Register Copy cannot be treated as substantive evidence, since the doctor is expected to treat the patient, recording the injuries and the weapon if any disclosed for committing the injuries, noting the same and nothing more. This being the position, a detailed statement said to have been given by the injured (later died) in my considered thinking, fails to advance the case of the accident, which could be seen from further evidence.

11. P.W. 6 after giving first aid, directed the injured to be taken to Kilpauk Medical College Hospital where facilities are available for burn injuries. On that basis, the wife of the accused was taken to P.W. 7, who examined her on 17.8.1997 at about 7.35 p.m. The certificate issued by P.W. 7 is marked as Ex. P. 2. Ex. P2 would disclose that the wife of the accused sustained burn injuries due to catch of fire in her saree while cooking in the burning stove, which is diametrically inconsistent to the statement recorded in Ex. P. 1. Further as recorded in Ex. P. 1, if the deceased had sustained burn injuries on her own, by falling in the attempt to save a baby, then normally there would be injuries only over a portion of the body, which had come into contact with the stove, then because of the fire caught in the saree, other portions also should have burnt and certainly not over the head, face etc., since there would not have been any possibility for the injured to sustain the injuries in the head, in case of accident, as reported in Ex. P. 1 to be taken as correct. P.W. 7 has stated that Vijayalakshmi sustained injuries from head to toe and the hair also burnt. Postmortem certificate would reveal as seen from Ex. P. 4, as deposed by P.W. 9, burn injuries were noticed over the body of Vijayalakshmi as under:

Singeing of scalp hairs over the frontal area, eye brows and eye lashes.

Epidermal and dermoepidermal burn injuries over the entire face, neck both upper limbs fully, both lower limbs fully, front of chest and abdomen fully, back of the trunk fully and both gluteal regions.

The above injuries coupled with the inconsistency available in Exs. P. 1 & P2 and the fact that the husband alone took the injured to the hospital and gave statement, prompt me to think unhesitatingly that entries should have been made under some motive, probably at the instance of the accused to demonstrate the incident as if accidental, thereby to escape from the clutches of law, which cannot be accepted for the reasons assigned by me supra. Hence this defence of accidental fire is rejected.

12. Section 306 of Indian Penal Code reads:

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,

thereby showing the commission of suicide must be pursuant to the abetment committed by any person. It is the case of the prosecution that the husband abetted the deceased wife to commit suicide.

13. Section 107 of IPC defines “abetment” and the first category reads:

Instigates any person to do that thing,

then the third category reads:

intentionally aids, by any act or illegal omission, the doing of that thing,

thereby making it clear, that there should be instigation when the case has to come under the first category and there should be intentional aid or any act or illegal omission in case the case comes under the third category. The second category may not come in this case as per the stated facts and therefore, not discussed. In view of the first and third categories available under Section 107 IPC, it should be brought to surface, that the accused instigated the wife to commit suicide or he was a passive spectator by his omission to prevent the commission of the offence or intentionally aiding the wife to commit suicide. From the facts available it is clear that the accused will not come under the third category also, since it is not the case of the prosecution, that he intentionally aided by any act. If at all it could be said the omission on the part of the accused, if he failed in his attempt to prevent the suicide, that may also lead to the inference that he aided, which is also not available in the case on hand. Admittedly, as per the evidence available on record, which is spoken by P.W. 2, the accused attempted to put off the fire, by wrapping a woolen carpet, thereby showing he has not aided by his illegal omission, to prevent the offence. Since the third category goes, we have to see whether this person had instigated the wife to commit suicide.

14. After 10 years from the date of marriage i.e. 29.6.1998, the occurrence took place on 17.9.1997. Therefore, the presumption as to abetment of suicide by a married woman as made available under Section 113A of the Indian Evidence Act 1872 as amended may not be available in this case, since that Section says, if it is shown that the wife committed suicide within a period of 7 years from the date of her marriage, and that her husband and such relatives of her husband had subjected her to cruelty, the Court may presume having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative or her husband. No cruelty with specific instances also had been alleged except some bare allegation as if the accused had some connection with somebody, which was reported by the deceased to the mother elsewhere 7 years ago or so. Therefore, either on the basis of the continuous cruelty or on the basis that the incident had taken place within 7 years from the date of marriage, the presumption contemplated under Section 113A of the Indian Evidence Act, though it is ‘may’, is also not available to the prosecution and in fact, no such presumption is sought for to rope in the accused under Section 306 IPC.

15. In a family, between the husband and wife, there may be so many internal problems due to so many unavoidable circumstances disclosed or undisclosed, as the case may be. Because of that problem, if a married woman on her own commits suicide, it may not be fair and just to accuse the husband as if he must be the cause creating problems in the absence of instigation as defined under Section 107 IPC.

16. The complaint was given only by the accused and therefore, we cannot expect anything adverse against the accused. P.W. 1 is the neighbour of the accused and he has not stated anything about the possible instigation or actual instigation. P.W. 2 is the daughter of the accused and the deceased aged about 12, when she was examined. She would state that there used to be frequent quarrel between the father and the mother. It is further deposed by P.W. 2, that the father having gone to duty used to come even after two or three days. The accused was working in the Railway Force. Therefore, there is nothing wrong in the accused, coming late or after the lapse of one or two days also, considering his nature of job. The wife, aggrieved by the conduct of the husband in not coming to the house as she expected, appears to have questioned the husband, for which the husband might have replied, that he will come as he likes, which cannot be taken as provocative act, or the instigative act, to compel the wife to take the extreme step of committing suicide. A sensitive wife, aggrieved by the ordinary words, said to have been uttered by the husband “,(sic) U (sic) @ meaning ‘whether you live or die’, had committed suicide by pouring kerosene, setting ablaze, as spoken by P.W. 2 creates a doubt genuinely whether that would come within the meaning of instigation and in my considered opinion “no”. Therefore even assuming that P.W. 2’s evidence is true, it fails to prove the ingredients required under Section 107 IPC, leading to 306 IPC or compelling the Court to infer the abetment as contemplated under law. P.W. 2 is (was) under the custody of the maternal grandfather or grandmother. Therefore, she is bound to response, to the command of the mother of the deceased. In this view, the evidence given by a child witness without corroboration may not be safe to be acted upon to prove the abetment. Assuming that the oral evidence of P.W. 2 is true as said above, it fails in standard to attract the instigation, which is primarily needed for abetment.

17. P.W. 3 is the brother of the deceased Vijayalakshmi. He would state that his sister had told him that the accused was having some connection with one Srikumari after 7 years or so and except this, no evidence has come from the mouth of P.W. 3, warranting an inference either directly or impliedly to prove the instigation which forms part of abetment. Another brother of Vijaylakshmi, who has been examined as P.W. 5 has also not stated anything adversely against the accused such as he had caused cruelty and that should be the reason for committing suicide by his sister, thereby leading to some kind of inference of instigation impliedly. Thus the evidence brought to Court on behalf of the prosecution, has not brought to surface the abetment said to have been caused or committed by the accused compelling the wife, to take the extreme step of committing suicide, by pouring kerosene on her body and setting ablaze. Thus analysing the evidence on record, I should say without contradiction that the prosecution failed in its duty to bring home the guilt of the accused, which was not properly analysed and scanned by the learned trial Judge while assessing the evidence.

18. Mr. T. Sudanthiram, the learned Senior Counsel arguing that in the absence of mens rea, in the casual way, if the husband scolded the wife “to go and die” as in this case, it will not amount to abetment and in aid he relied on decisions of the Apex Court in Ramesh Kumar v. State of Chhattisgarh 2002 SCC (Cri) 1088 and Sanju v. State of MP 2002 SCC (Crl) 1141. In the case involved in the first decision, the accused/appellant therein was convicted for the offences under Sections 498A and 306 IPC, which was challenged. As seen from paragraph-22 of the judgment, in that case also, the accused tried to put off fire and also took the wife to the hospital for treatment, as the facts available in the case on hand. Considering that aspect and the other kind of inconsistency available, the Apex Court has held that there would not have been instigation and the relevant sentences read:

The conduct of the accused trying to put off fire and taking his wife to the hospital also improbabilise the theory of having abetted suicide,

which dictum deserves to be applied in all force to the case on hand.

19. In the second case, referring the above decision, when the case was dealt with under Section 306 r/w 107 IPC, the Apex Court held that the words uttered in a quarrel or on the spur of the moment such as ‘to go and die’ cannot be taken to be uttered with mens rea and therefore, the person so said cannot be convicted under Section 306 IPC. If the accused had the motive or intention that his wife should die committing suicide on her own, then there must be some instance bringing to surface the mens rea, which is essential as held by the Apex Court. No instance brought to the notice of the Court how the accused entertained mens rea or how and why he should think that his wife should commit suicide for which he should have abetted. If really he had the intention that his wife should die and in that process with mens rea if he had scolded her, ordinarily he would not have gone to the rescue of the wife by putting off the fire, then taking to the hospital as observed by the Apex Court and in the normal course, he would have left the house itself, allowing the wife to die, which is not the case admittedly here. Therefore, the mens rea is also absent and this being the position, the conviction appears to be incorrect.

20. In Swamy Prahaladdas v. State of MP 1995 SCC (Crl.) 943 the Apex Court has held when the offence under Section 306 IPC was challenged, for quashing, when the suicide is not the direct result of the words uttered by the accused, no person could be called to face the trial under Section 306 IPC. In the case involved in the above decision, it seems the accused therein scolded the deceased or remarked ‘to go and die’. Thereafter the deceased went home in a dejected mood committed suicide, which was sought to be brought under Section 306 IPC. Considering the above facts and circumstances of the case, the Apex Court held mere uttering the words ‘go and die’ is not sufficient to bring the offence under Section 306 IPC.

21. In State of Gujarat v. Sunilkumar Kanaiyalal Jain 1997 Crl.L.J. 2014 a Division Bench of the Gujarat High Court considering the scope of Section 306 IPC elaborately dealt with abetment, realising the responsibility of the Court also has observed, “better die today than tomorrow”. if had been uttered cannot be said to be the abetment in the eye of law since the words might have been uttered due to outburst of one’s own fatuity or anger or consternation without any intention or knowledge or might be the rude or insulting, not with desire to instigate the person to commit suicide, which principle also could be extended to the above case on hand. By applying the law settled by the Supreme Court to the facts of the case on hand, as well as analysing the evidence available on record and taking into consideration the over all circumstances of the case also after deep consideration, I am of the considered opinion, no offence has been made out under Section 306 IPC. But unfortunately the trial Court convicted and sentenced the accused, which require to be set aside and for that the appeal deserves acceptance.

In the result, the appeal is allowed setting aside the conviction and sentence passed by the judgment dated 26.9.2000 in S.C. No. 216 of 1998 on the file of the III Addl. Sessions Judge, Chennai and the appellant is acquitted of the charge framed, finding not guilty. Fine amount, if paid, shall be refunded and the bail bonds executed shall stand cancelled.

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