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B.Ravi vs State Deputy Superintendent Of … on 26 February, 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 26.02.2019

CORAM

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

Crl.A.No.636 of 2009

B.Ravi … Appellant

Vs

State Deputy Superintendent of Police,
St.Thomas Mount Police Station, Chennai, …. Respondent

Prayer:- Criminal Appeal is filed under Section 374 of Cr.P.C., to set aside the

judgement and conviction dated 09.09.2009 made in SC.No.29/2003 on the file

of the Mahila Court, Chengalpattu.

For Appellant : Mr.M.K.Parandhaman

For Respondent : Mr.K.Prabakar, APP

JUDGEMENT

This Criminal Appeal is filed, against the judgement of conviction and

sentence, dated 09.09.2009, made in S.C.No.29 of 2003, by the Mahila Court,

Chengalpattu, convicting and sentencing the Appellant for the offence under

Section 498(A) IPC to undergo rigorous imprisonment for one year and to pay

a fine of Rs.500/-, in default, to undergo three months simple imprisonment

and for the offence under Section 306 IPC, to undergo rigorous imprisonment

for three years and to pay a fine of Rs.1,000/-, in default, to undergo six

months simple imprisonment and ordering the sentences to run concurrently.

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2. The case of the Prosecution has arisen on the basis of the

complaint Ex.P1, dated 09.12.2000, given by PW.1, who is the mother of the

deceased, alleging that the marriage between the appellant/accused and the

deceased had taken place on 08.10.2000 and from the date of marriage, both

were living at Pudupettai Street, Alandur and that the appellant / accused had

demanded dowry, suspected the fidelity of the deceased, from the date of

marriage and tortured her and that due to the torture meted out by her, the

victim committed suicide by self-immolation on 08.12.2000 at 11.00 p.m at the

house of the appellant/accused and the victim died on 9.12.2000 at 5.30 a.m.

due to burn injuries. As the occurrence was within seven years from the date of

marriage, the appellant/accused was charge sheeted for the offences under

Sections 498(A), 306 and 304(B) of IPC.

3. The case was taken on file in S.C.No.29 of 2003, by the learned

Mahila Judge, Chengalpattu and necessary charges were framed. The accused

had denied the charges and sought for trial. In order to establish the guilt of the

appellant/accused, the prosecution examined 10 witnesses as P.W.1 to P.W.10

and marked documents as Exs.P1 to P16 on its side and also examined one

Court witness as C.W.1. However, no evidence was let in, on the side of the

defence.

4. P.W.1 is the mother of the deceased, who gave the complaint

Ex.P1. P.W.2 and P.W.3 are the brothers of P.W.1. P.W.4 is the witness, who

attested in the Observation Mahazar Ex.P2. P.W.5 is the neighbour of P.W.1.
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P.W.6 is the Tahsildar concerned, who conducted inquest on the body of the

deceased. P.W.7 is the XVI Metropolitan Magistrate, who recorded the dying

declaration of the deceased. P.W.8 is the Sub Inspector of Police, who received

the complaint Ex.P1 and registered a case in Crime No.904 of 2000 for the

offence under Section 498A of IPC and prepared the First Information Report

under Ex.P7. P.W.9 is the Deputy Superintendent of Police, who conducted

further investigation and filed the final report against the accused under

Sections 498(A), 304 (B) and 306 IPC. P.W.10 is the Doctor, who had

conducted post-mortem on the body of the deceased. C.W.1 is the Junior

Bailiff, examined as a Court witness.

5. Ex.P1, dated 09.12.2000 is the complaint given by P.W.1. Ex.P2,

dated 09.12.2000, is the Observation Mahazar. Ex.P3, dated 11.12.200, is the

inquest report. Ex.P4, dated 27.12.2000 is the requisition letter to conduct

inquest. Ex.P5, dated 11.12.2000 is the requisition letter to Forensic

Department, Government Hospital, Kalpakkam. Ex.P6, dated 09.12.2000, is the

Dying Declaration of the deceased. Ex.P7, dated 09.12.2000 is the printed First

Information Report. Ex.P8, dated 08.12.2000 is the requisition letter from

Sub Inspector of Police, St.Thomas Mount Police Station, to Chief Metropolitan

Magistrate, Egmore, to obtain Dying Declaration from the deceased. Ex.P9,

dated 09.12.2000 is the rough sketch. Ex.P10, is the copy of the death

memorandum of the deceased. Ex.P11, dated 10.12.2000 is the alteration

report. Ex.P12, dated 11.12.2000, is the xerox copy of the post-mortem report.

Ex.P13, dated 10.12.2000, is the requisition letter to Commissioner, Greater
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Chennai Corporation. Ex.P14, dated 11.12.2000 is the copy of the inquest

report. Ex.P15, dated 27.12.2000 is the requisition letter from Tahsildar,

Egmore-Nungambakkam to Deputy Tahsildar, Chengalpattu regarding to

conduct post-mortem. Ex.P16, dated 11.12.2000 is the statement of

Kanniammal P.W1.

6. On completion of the evidence on the side of the prosecution, the

accused was questioned under Section 313 of Cr.PC as to the incriminating

circumstances found in the evidence of the prosecution witnesses and the

accused has come with the version of total denial and stated that he has been

falsely implicated in this case. However, no evidence was let in, on the side of

the defence.

7. The Court below, after hearing the arguments advanced on either

side and also looking into the materials available on record, found the

accused/appellant guilty and awarded punishment as referred to above, which

is challenged in this Criminal Appeal.

8. This Court heard the submissions of the learned counsel on either

side.

9. The learned counsel for the appellant / accused has assailed the

impugned judgement and conviction and sentence, on the following infirmities,

discrepancies and grounds :-

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(a) The trial Court ought not to have convicted the appellant /

accused for the offences under Sections 498(A) and 306 of IPC based on the

uncorroborated evidence of P.W.1 to P.W.3, which is self contradictory in other

aspects.

(b) Ex.P6, dying declaration itself would show that the appellant /

accused is not responsible for the suicide committed by the deceased and that

the victim herself had stated that she had committed suicide due to the

compulsion of her parents to live with the appellant/accused against her will and

further, there is absolutely no material, attracting ingredients of offence under

Section 306 of IPC against the appellant / accused.

(c) It is also on record that the appellant / accused used to scold and

suspected the fidelity of the deceased and that she had attempted suicide on

the previous month itself. Thereafter, her parents had compelled her to live with

the appellant / accused and unable to bear that, she had committed suicide by

self-immolation and that the appellant / accused was sleeping outside the

house and after hearing her noise, the appellant / accused rushed into the

house and attempted to put off the flames and that the conduct of the appellant

/ accused would show that he has not committed any cruelty and thereby, for

the offence under Section 498(A) is not attracted.

10. The learned counsel for the appellant/accused would ultimately

contend that the impugned judgement of conviction and sentence is against law

and that the prosecution has failed to prove its case beyond all reasonable
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doubts by cogent evidence and that the Trial Court is not correct and justified in

convicting and sentencing the appellant/accused and hence, the appellant /

accused is entitled for acquittal.

11. The learned Additional Public Prosecutor for the respondent

would contend that the prosecution has proved the charges levelled against the

accused through the oral testimony of P.W.1, the mother of the deceased and

the corroborating evidence of the other witnesses and also relied on the dying

declaration of the deceased and hence, the impugned judgement of conviction

and sentence warrants no interference by this Court.

12. I have given my careful and anxious consideration to the rival

contentions put forward by either side and thoroughly scanned through the

entire evidence available on record and also perused the impugned judgement

of conviction.

13. The case of the Prosecution mainly rests on the evidence of

PW.1 to PW.3 and Ex.P6, dying declaration. In Ex.P6, dying declaration, the

deceased had told that her parents had compelled her to live with the appellant

/ accused and that unable to bear that, she had committed suicide. It is the

specific statement of the deceased that the appellant / accused had attempted

to safe guard her. Since the ingredients of offence under Section 306 of IPC are

lacking, this Court is of the opinion that the conviction under Section 306 of IPC

cannot be sustained.

14. Further, taking into consideration the evidence of P.W.1, P.W.2

and P.W.3, this Court is of the opinion that the accused had subjected the

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deceased to cruelty, by suspecting her character and because of that she had

not wanted to live with the Appellant/ accused, whereas she had been

compelled by her parents to live with the Appellant/ accused, which was against

her wishes and thereby, she had been driven to the extent of committing

suicide and that she had earlier attempted to commit suicide due to the

harassment meted out to her suspecting her fidelity and thereby, this Court is of

the opinion that the conviction under Section 498(A) IPC is to be sustained.

15. To bring home the guilt of the Appellant/ accused for the offence under

Section 306 of IPC, the Prosecution should prove that there has to be a clear

mens rea to commit an offence and that there ought to be an active or direct act

leading the deceased to commit suicide, being left with no option.

16. With regard to case of abetment to commit suicide, the

Honourable Supreme Court in (2017) 1 SCC 433 (Gurucharan Singh Vs State

of Punjab), in Paras 20 to 22 and Paras 27 to 29, has held as follows:

“20. Section 306 of the Code prescribes the punishment for
abetment of suicide and is designed thus:

“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.”

21. It is thus manifest that the offence punishable is one of
abetment of the commission of suicide by any person,
predicating existence of a live link or nexus between the two,
abetment being the propelling causative factor. The basic
ingredients of this provision are suicidal death and the
abetment thereof. To constitute abetment, the intention and
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involvement of the accused to aid or instigate the
commission of suicide is imperative. Any severance or
absence of any of this constituents would militate against
this indictment. Remoteness of the culpable acts or
omissions rooted in the intention of the accused to actualize
the suicide would fall short as well of the offence of abetment
essential to attract the punitive mandate of Section 306 IPC.
Contiguity, continuity, culpability and complicity of the
indictable acts or omission are the concomitant indices of
abetment. Section 306 IPC, thus criminalises the sustained
incitement for suicide.

22.Section 107 IPC defines abetment and is extracted
hereunder:-

“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 doing.

Explanation 2 – Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitate the commission
thereof, is said to aid the doing of that act.”

Not only the acts and omissions defining the offence of
abetment singularly or in combination are enumerated
therein, the explanations adequately encompass all
conceivable facets of the culpable conduct of the offender
relatable thereto.”
*********

27. The pith and purport of Section 306 IPC has since been
enunciated by this Court in Randhir Singh vs. State of
Punjab (2004)13 SCC 129, and the relevant excerpts
therefrom are set out hereunder:-

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“12. Abetment involves a mental process of instigating a
person or intentionally aiding that person in doing of a thing.
In cases of conspiracy also it would involve that mental
process of entering into conspiracy for the doing of that
thing. More active role which can be described as instigating
or aiding the doing of a thing is required before a person can
be said to be abetting the commission of offence
under Section 306 IPC.

13. In State of W.B. Vs. Orilal Jaiswal (1994) 1 SCC 73, this
Court has observed that the courts should 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 the life by committing suicide. If it
transpires to the court that a victim committing suicide was
hypersensitive to ordinary petulance, discord and differences
in domestic life quite common to the society to which the
victim belonged and such petulance, discord and differences
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 be found guilty.”

28. Significantly, this Court underlined by referring to its
earlier pronouncement in Orilal Jaiswal (supra) that courts
have to be extremely careful in assessing the facts and
circumstances of each case to ascertain as to whether
cruelty had been meted out to the victim and that the same
had induced the person to end his/her life by committing
suicide, with the caveat that if the victim committing suicide
appears to be hypersensitive to ordinary petulance, discord
and differences in domestic life, quite common to the society
to which he or she belonged and such factors were not
expected to induce a similarly circumstanced individual to
resort to such step, the accused charged with abetment
could not be held guilty. The above view was reiterated
in Amalendu Pal @ Jhantu vs. State of West Bengal(2010) 1
SCC 707.

29. That the intention of the legislature is that in order to
convict a person under Section 306 IPC, there has to be a
clear mens rea to commit an offence and that there ought to
be an active or direct act leading the deceased to commit
suicide, being left with no option, had been propounded by
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this Court in S.S. Chheena vs. Vijay Kumar Mahajan (2010)
12 SCC 190.”

17. Before Section 306 of IPC can be acted upon, there must be

clear proof of the fact that the death in question was a suicidal death. The

offence of ‘abetment’ must conform to the definition of that term as given in

Section 107 of IPC, that is to say, there must be instigation, cooperation or

intentional assistance given to the commission of suicide. It is not necessary or

indeed is it a part of the definition. That the suicide should have been

committed in consequence of the abetment. In order to render a person liable

as an abettor, it is, of course, necessary, as indeed it is in the case of any other

offence, that the abettor should do something more than a mute spectator.

18. Thereby, without a positive act on the part of the accused to

instigate or aid in committing suicide, conviction cannot be sustained.

19. In the light of the decisions referred and the reasons stated

above this Court is of the considered view that the Prosecution has miserably

failed to prove the guilt of the accused under Section 306 of IPC and hence,

conviction and sentence under Section 306 of IPC is not sustainable.

20. Taking into consideration the conduct of the appellant / accused

that immediately after the occurrence, the appellant / accused had taken every

attempt to safe guard the deceased and that he was the person, who had taken

the deceased to the Hospital and admitted her and also the evidence of P.W.1,
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P.W.2 and P.W.3, which would also reveal that the appellant / accused had

admitted her in the Hospital and the fact that the appellant/accused was

remanded in jail for a period of 66 days, this Court is of the opinion that while

upholding the conviction for the offence under Section 498A of IPC, the

sentence of imprisonment may be modified to the period of sentence already

undergone by him.

21. In the result, this Criminal Appeal is partly allowed. The

impugned judgement of conviction and sentence, dated 09.09.2009 made in

S.C.No.29 of 2003, on the file of the Mahila Court, Chengalpattu, is set aside in

respect of the offence under Section 306 of IPC alone. The Appellant is

acquitted from the charges levelled against him for the offence under Section

306 of IPC alone. The fine amount, if any, paid by the appellant for the offence

under Section 306 IPC is directed to be refunded to him. However, in respect of

the offence under Section 498(A) IPC, while confirming the conviction under

Section 498A of IPC, the period of sentence is modified to the period already

under gone by the appellant/accused.

26.02.2019

Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
ms/Srcm

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A.D.JAGADISH CHANDIRA, J.

ms/Srcm

To

1.The Mahila Court,
Chengalpattu.

2.The Deputy Superintendent of Police,
St.Thomas Mount Police Station,
Chennai.

3.The Public Prosecutor,
High Court, Madras.

Crl.A.No.636 of 2009

26.02.2019

http://www.judis.nic.in

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