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Duraisamy vs State By Inspector Of Police on 21 November, 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.11.2019

CORAM:

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

Crl.A.No.509 of 2017
1. Duraisamy
2. Ayyavu
3. Boopathy
4. Baby
5. Arunagiri Appellants/A1 to A5

Vs

State by Inspector of Police
Kondalampatti Police Station, Salem Respondent

Prayer:- This Criminal Appeal is filed, against the judgement of conviction and
sentence, dated, 31.07.2017, made in SC.No.110 of 2015, by the Sessions
Judge, Mahila Court, Salem.
For Appellant : Mr.E.C.Ramesh

For Respondent : Mr.M.Mohamed Riyaz-APP

JUDGEMENT

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

sentence, dated, 31.07.2017, made in SC.No.110 of 2015, by the Sessions

Judge, Mahila Court, Salem, convicting and sentencing each of the

Appellants/A1 to A5 for the offence under Section 498A of IPC to undergo

Rigorous Imprisonment for three years and to pay a fine of Rs.2,000/- each,

in default to undergo Simple Imprisonment for six months and for the

offence under Section 306 of IPC to undergo Rigorous Imprisonment for ten

years and to pay a fine of Rs.2,000/- each, in default to undergo six months
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Rigorous Imprisonment and ordering the sentences to run concurrently.

2. The case of the Prosecution is as follows:-

a) The Appellant/A1 is the husband of the deceased, Yasodha and the

Appellants/A2 and A3 are in laws of the deceased and the Appellants/A4

and A5 are the sister and brother of the Appellant/A1. The deceased and

A1 fell in love with each other and due to their relationship, the deceased

became pregnant and the parents of the deceased, on coming to know

about the same, with the intervention of elders, had performed their

marriage 2 ½ years prior to the occurrence and thereafter, the deceased

was living with A1 along with A2 to A5 as a joint family.

b) After marriage, the Appellants/Accused used to often subject the

deceased to cruelty by harassing and abusing her, by demanding dowry.

Due to the harassment, the deceased underwent miscarriage and fell ill.

Even then, the Appellants/Accused subjected the deceased to cruelty for

not meeting out their demand of dowry. On 9.2.2013, A2 to A5 some

time prior to 8.15 a.m. had threatened the deceased saying that if she

failed to meet out their demand of dowry, they would perform the

marriage of A1 with another girl and saying so, A1 had also threatened

the deceased several times over phone prior to 9.2.2013. By such willful

acts, the Appellants drove the deceased to commit suicide by consuming

oleander seeds, which is a poisonous substance, on 9.2.2013 at about

8.15 and the deceased died on 9.2.2013 at 7.00 p.m. within seven years

of her marriage in the Hospital. Hence, the Inspector of Police,

Kondalampatty, Salem had laid the charge sheet against the
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Appellants/A1 to A5 for the offences under Sections 498A, 306 and 304B

of IPC

3. The case was taken on file in PRC.No.4 of 2015, by the Additional Mahila

Judge, Salem and after furnishing necessary copies to the accused under

Section 207 of Cr.PC, the case was committed to the Court of Sessions. The

Principal District Judge, Salem had assigned SC.No.110 of 2015 and made

over the case to the Sessions Judge, Mahila Court and charges were framed

against the accused under Sections 498A, 306 and 304B of IPC. The

substances of the charges were put forth to the accused and they were

questioned. The accused had denied the charges and sought for trial. In

order to bring home the charges against the accused, the prosecution

examined PW.1 to PW.14 and also marked Exs.P1 to P22.

4. On completion of the evidence on the side of the prosecution, the accused

were questioned under Section 313 Cr.PC as to the incriminating

circumstances found in the evidence of prosecution witnesses and the

accused have come with the version of total denial and stated that they have

been falsely implicated in this case. On the side of the defence, Ex.D1 was

marked and the Appellant/A1 was examined as DW.1. The court below, after

hearing the arguments advanced on either side and also looking into the

materials available on record, found the Appellants/Accused guilty and

awarded punishments, as referred to above, which is challenged in this

Criminal Appeal.

5. This court heard the submissions of the learned counsel on either side.

6. The learned counsel for the Appellants would submit that the Trial Court
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erred in convicting the Appellants/Accused when though PW.1, father and

PW.2 mother of the deceased have initially supported the case of the in their

examination in chief, but in their cross examination, they have not supported

the case of the Prosecution and that it is the clear cut case of PW.2 that the

deceased committed suicide by consuming oleander seeds due to frequent

stomach pain and that even at the earliest point of time, when the deceased

was admitted in the Government Hospital, Salem, and examined by PW.14

Doctor, she did not implicate the accused and that till the death of the victim,

the Respondent did not take any steps despite the fact that Ex.P22 accident

intimation was sent by PW.14 Doctor to the Police immediately. He would

further submit that the Trial Court also failed to take into consideration the

delay in lodging the complaint by PW.1 and further, the Trial Court did not

take into consideration the admission of PW.2 that the deceased consumed

poison at her maternal house due to stomach pain.

7. The learned counsel for the Appellants/Accused would further submit that the

Trial Court erred in convicting the Appellants/Accused based on Ex.P8,

statement and opinion of the Revenue Divisional Officer, which was not

supported by the Prosecution witnesses during the course of trial and further,

the Trial Court committed a grave error in basing conviction based on 164

statements recorded from the independent witnesses, who have not been

examined before the Court. He would further submit that the statement

recorded under Section 164 of Cr.PC cannot be treated as a substantive

evidence adduced before the Trial Court because it was not recorded in the

presence of the accused and that the Prosecution has failed to prove its
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case beyond all reasonable doubts that the Appellants abetted the victim to

commit suicide and that when there is no evidence to prove that the

Appellants demanded any dowry or that the deceased was subjected to

cruelty on account of demand of dowry, the Trial Court erred in convicting the

Appellants for the offence under Section 498A of IPC.

8. The learned counsel for the Appellants would further submit that PW.1 and

PW.2 are none other than the father and mother of the victim and that PW.1

has categorically deposed that he had deposed in chief only on being tutored

by the Police and that even at the time of RDO enquiry and examination

before the Magistrate, he had deposed as tutored by the Respondent Police.

He would further submit that PW.2 mother of the victim was examined in

chief on the same day of examination of PW.1 and she had deposed that

prior to the marriage, the victim and the Appellant/A1 had sexual relationship

and that she became pregnant and that they are relatives and thereby she

had got the victim and the Appellant/A1 married against the wish of her

husband, PW.1 and that his daughter, the deceased used to suffer stomach

pain often, due to which she had delivered a still born child and that her

daughter unable to bear the stomach pain, had committed suicide by

consuming oleander seeds poison. He would further submit that PW.1 father

was actually antagonised with the Police since the marriage was conducted

by PW.2 against his will and thereafter, due to antagonise, they had deposed

falsely, however, during the cross examination, he has also admitted that he

has not supported the case of the Prosecution and he had stated that he had

deposed on being tutored by the Respondent Police and that even as per
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Ex.P7, in column 4, PW.1, mother of the deceased and sister of the

deceased were said to have seen the victim alive lastly and that it is the

statement of PW.2 that her daughter committed suicide by consuming poison

since she was unable to bear the stomach pain

9. The learned counsel for the Appellants would further submit that the RDO

enquiry has not been conducted in accordance with the procedure and that

Ex.P8 is the joint statement recorded from PW.1 and PW.2, which contains

finger prints of PW.1 and PW.2, based on which the joint statement was

stated to have been recorded from PW.1 and PW.2, which creates a grave

doubt with regard to the manner in which the RDO enquiry was conducted

and further though the independent witnesses have been examined during

the RDO enquiry, they were not examined before the Court and that in the

absence of valid and cogent evidence in support of the Prosecution, the Trial

Court erred in convicting and sentencing the Appellants on the

uncorroborated evidence and the evidence of PW.1 and PW.2, who have not

supported the case of the Prosecution and that the Trial Court also erred in

convicting the Appellants based on 164 statements and he would seek for

allowing this criminal. In support of his contentions, he would rely on the

decisions reported in 2016 2 MWN Cr. 356 Division Bench (Ramasamy Vs.

State) and 2013 2 LW Crl. 169 (R.Palanisamy Vs. Inspector of Police).

10.On the other hand, the learned Additional Public Prosecutor for the

Respondent would submit that though PW.1 has rescinded from his earlier

statement, he had categorically deposed about the cruelty suffered by his

daughter and the demand of dowry and that the Prosecution has proved its
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case beyond all reasonable doubts by cogent evidence and would seek for

dismissal of this criminal.

11.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.

12.Though the Appellants/Accused were tried for the offences under Sections

498A, 304B and 306 of IPC, the Trial Court, while acquitting the

Appellants/Accused under Sections 304B of IPC, had convicted and

sentenced them for the offences under Sections 498A and 306 of IPC, as

stated above.

13.The main grounds of attack by the learned counsel for the Appellants are

that there was a delay in registration the First Information Report and in

reaching the inquest report to the Court and that PW.1 and PW.2, who are

the father and mother of the deceased have not supported the case of the

Prosecution and that the statements recorded under Section 164 of Cr.PC

cannot be taken into consideration as a substantive evidence to base

conviction.

14.The points that arise for consideration are as to whether the Prosecution has

proved its case beyond all reasonable doubts and whether the Trial Court is

justified in convicting and sentencing the Appellants/ accused for the

offences under Sections 498A and 306 of IPC, as stated above, for which

purpose, the oral and documentary are analysed in brief in the following

paragraphs.

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15.Before analysing the evidence, at this juncture, for easy reference, Section

498A of IPC is extracted as under:-

“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 pun-
ished 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

(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.”

16.It is seen from the above said provisions of Section 498 of IPC, the term

“cruelty” has to be narrated as under:-

1. A women must be married

2. She must be subjected to cruelty.

3. Cruelty must be of the nature of harassment of such
woman, (a) any willful conduct which is of such a nature
as is likely to drive the woman to commit suicide and (b)
with a view to coercing her to meet unlawful demand for
property or valuable security or is on account of failure to
meet such demand.

17.Further, to bring home the guilt of the Appellants/ 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.

18.In the case on hand, the date of occurrence, i.e. consuming poison by the

deceased, is 9.2.2013 at 8.15 hours. The deceased died on the same day at

7.00 p.m. in the hospital. PW.1, who is the father of the deceased, is the
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defacto complainant and PW.2 is the mother of the deceased. PW.3 and

PW.4, are the mahazar witnesses, PW.5 is the Doctor, who treated the

deceased at the Vinayaga Mission Medical College, Salem and declared the

victim as dead. PW.6 is the Doctor, who conducted postmortem on the body

of the deceased. PW.7 is the Sub Inspector of Police, who received the

complaint and the registered the case in Cr.No.60 of 2013. PW.8 is the

Head Constable, who sent the body of the deceased for postmortem.

19.PW.9 is the Revenue Divisional Officer, who conducted inquest on the body

of the deceased at the Hospital and enquired the inquest witnesses and gave

his opinion and a report. PW.10 is the Deputy Superintendent of Police, who

conducted the preliminary investigation. PW.11 is Additional Superintendent

of Police, who conducted further investigation and filed the charge sheet.

20.PW.12 Doctor, Government Hospital, Salem had received the body of the

deceased and made entry in the AR Register. PW.13 is the Doctor, who

admitted the deceased in the Kribanandavariar Medical College and

Hospital, Salem and treated her. PW.13 is the Doctor, attached to the

Government Hospital, Salem, who prepared the accident note and made an

entry in the Accident Register.

21.Ex.P1 dated 10.02.2013 is the complaint given by PW.1. Ex.P2 is the death

intimation report. Ex.P3 is the postmortem certificate. Ex.P4 is the viscera

report and Ex.P5 is the First Information Report, dated 10.02.2013. Ex.P6 is

the requisition to conduct postmortem. Ex.P7 dated 10.02.2013 is the inquest

report of the Revenue Divisional Officer, PW.9. Ex.P8 dated 25.02.2013 is

the statement and opinion of PW.9, Revenue Divisional Officer. Ex.P9 and
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Ex.P10 are the observation mahazar and rough sketch. Ex.P11 is the

alteration report. Ex.P12, dated 15.04.2013 is the requisition to the

Magistrate for recording 164 Cr.PC statement of the witnesses. Ex.P13 to

Ex.P17 are the statements of the witnesses recorded under Section 164 of

Cr.PC. Ex.P18 dated 10.02.2013 is the accident register copy and Ex.P19

dated 9.2.2013 is the accident register. Ex.P20 dated 9.2.2013 is the

intimation to the Police. Ex.P21 dated 9.2.2013 is the accident register copy.

Ex.P22 is the admission sheet, dated 9.2.2013.

22.DW.1 is the Appellant/A1 and Ex.D1 dated 14.3.2016 is the Government

quarters allotment order copy to the accused.

23.In the chief examination, PW.1, father of the deceased had deposed about

the cruelty meted out to the deceased by the Appellants, but in his cross

examination, he had deposed that he had deposed in chief only on being

tutored by the Police and that even at the time of preliminary enquiry, RDO

enquiry and examination before the Magistrate, he had deposed as tutored

by the Respondent Police to make such a statement and that the deceased

and the Appellant/A1 were living happily after their marriage and his

daughter frequently suffered stomach pain, due to which, she consumed

oleander seeds. Thus, it is seen that PW.1, father of the deceased, though in

the chief examination, has supported the case of the Prosecution, but in his

cross examination had deposed totally against the Prosecution and not

supported the case of the Prosecution and as such, in the opinion of this

Court, the evidence of PW.1 should not have been relied on by the Trial

Court to base conviction.

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24.PW.1 had been examined in chief on 5.3.2016 and on the same day, PW.2

mother of the victim had been examined and treated as a hostile witness and

she had deposed that prior to the marriage, the victim and the Appellant/A1

had sexual relationship and that she became pregnant and that they are

relatives and thereby she had got the victim and the Appellant/A1 married

against the wish of her husband, PW.1. She had even in her chief

examination stated about the reason for her daughter having committed

suicide due to frequent stomach pain suffered by her. Even though PW.2

had been subjected to lengthy cross examination by the Prosecution, she

stood by her deposition that her daughter committed suicide due to severe

stomach pain. Even as per Ex.P7, in column 4, PW.1, mother of the

deceased and sister of the deceased were said to have seen the victim alive

lastly. Thus, the PW.2 has also not supported the case of the Prosecution. It

is also seen from the evidence of PW.3 and PW.4, mahazar witnesses that

they have not supported the case of the Prosecution.

25.Further, immediately after the occurrence, the victim had been taken to the

Government Moran Kumaramangalam Medical College and Hospital, Salem

and she was examined by PW.12 Doctor. At the time of admission, she was

conscious and that she had not made any allegations against her husband

or his relatives. Even at the time of initial admission on 9.2.2013 at 10.30

a.m. intimation had been given to the Police and thereafter, referred to

Vinayaga Mission Kirubananda Variyar Medical College and Hospital for

better treatment on the same day evening at 5.00 p.m. and even from there,

intimation had been given to the Respondent Police and thereafter, she had
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not responded to the treatment and she died on the same day at 7.00 p.m

and death intimation had been sent to the Respondent Police.

26.Though Ex.P2, death intimation report was sent to the Respondent Police on

9.2.2013 at 7.00 p.m., the Respondent Police had not registered the case

immediately. Only on 10.02.2013 at 10.00 a.m. on receipt of the Ex.P1

complaint from PW.1, PW.7 Investigating Officer had registered the case

under Section 174(iii) of Cr.PC. Further, though PW.9, Revenue Divisional

Officer had sent the inquest report under Ex.P7 to the Court on 10.02.2013,

the Court and signature were put on Ex.P7 only on 28.03.2013. Thus, there

was an inordinate delay of about 47 days in reaching the inquest report to

the Court, which remains unexplained by the Prosecution. Further, the first

complaint based on death intimation was suppressed by the Respondent

Police. There is no plausible explanation given by the Prosecution for the

delay in registering the First Information Report and in reaching the inquest

report to the Court, which is fatal to the case of the Prosecution.

27.Now coming to the conviction under Section 498A of IPC, though Section

113 A of the Indian Evidence Act, imposes the presumption as to the

abatement of suicide by a married woman, to invoke such presumption, the

prosecution has to establish by evidence that the victim was subjected to

cruelty. Though a presumption could be drawn, the burden of showing that

such an offence has been committed by the accused under Section 498 A of

IPC is on the prosecution.

28. As stated above, on reading of the entire evidence, though there may seem

to be allegations against the Appellant/A1 for having caused cruelty on the
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victim, in the opinion of this Court, there is not even an iota of evidence,

much less valid and cogent evidence, let in by the Prosecution to attract the

ingredients of Section 498A of IPC and that the conduct of the

Appellants/Accused cannot be termed as “cruelty” under Section 498A of

IPC. Therefore, the conviction under Section 498 A of IPC cannot be

sustained.

29.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
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:-

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“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:-

“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
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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
this Court in S.S. Chheena vs. Vijay Kumar Mahajan (2010)
12 SCC 190.”

30.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. The suicide should have been committed in
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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.

Thereby, without a positive act on the part of the accused to instigate or aid

in committing suicide, conviction cannot be sustained.

31.In this case, the essential ingredients of Section 306 of IPC for abetment

have not been proved. There is no instigation to drive the deceased to

commit suicide on the part of the Appellants. There is no material to show

the cruelty meted out by the deceased.

32. In (2010) 1 MWN (cr.) 310 M.Sathishkumar V. State of Tamil Nadu, it was

held as under:-

“6. The learned Senior Counsel appearing for the petitioner
submits that even if the allegations made against the
petitioner/accused are accepted to be true, even then, there is no
possibility for holding the petitioner guilty of the charges either
under Section 498-A or 306, I.P.C. He further submits that all the
facts spoken to by the witnesses would only indicate the
misunderstanding between the husband and wife and there was
no love lost. Apart from that, according to the learned Senior
Counsel, there is no evidence to show that the petitioner abetted
the commission of offence as defined in Section 107, I.P.C. To
substantiate the said contention, the learned Senior Counsel has
taken me through the oral evidences and Ex.P2. He has also
relied on the judgement of the Hon’ble Supreme Court reported
in Kishangiri Mangalgiri Goswami v. State of Gujarat, 2009 (4)
MLJ (Crl) 983, wherein, the Hon’ble Supreme Court had occasion
to hold as to what constitute ‘abetment of suicide’ as
contemplated under Section 306, I.P.C. in terms of Section 107,
I.P.C. In para 11 to 13 read as follows:-

“11Section 107, I.P.C. defines abetment of a thing. The offence of
abetment is a separate and distinct offence provided in the Act as
an offence. A person, abets the doing of a thing when (1) he
instigates any person to do that thing; or (2) engages with one or
more other persons in any conspiracy for the doing of that thing;

or (3) intentionally aids, by act or illegal omission, the doing of that
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thing. These things are essential to complete abetment as a
crime. The word “instigate” literally means to provoke, incite, urge
on or bring about by persuasion to do anything. The abetment
may be by instigation, conspiracy or intentional aid, as provided in
the three clauses of Section 107. Section 109 provides that if the
act abetted is committed in consequence of abetment and there is
no provision for the punishment of such abetment, then the
offender is to be punished with the punishment provided for the
original offence. ‘Abetted’ in Section 109 means the specific
offence abetted. Therefore, the offence for the abetment of which
a person is charged with the abetment is normally linked with the
proved offence.

12. In cases of alleged abetment of suicide, there must be proof of
direct or indirect acts of incitement to the commission of suicide.
The mere fact that the husband treated the deceased-wife cruelty
is not enough. See Mahinder Singh v. State of M.P., 1995 AIR
SCW 4570.

13. The aforesaid aspects were highlighted in Kishori Lal v. State
of M.P., 2007 (10) SCC 797: 2007 (2) MLJ (Crl) 1830; Randhir
Singh and another v. State of Punjab, AIR 2004 SC 5097: 2005
SCC (Cr) 56: 2004 (13) SCC 129; and Sohan Raj Sharma v. State
of Haryana, Criminal Appeal No. 1464 of 2007 disposed of on
7.4.2008”.

7. A close look into the above would show that it is crystal clear
that unless it is established by the prosecution beyond reasonable
doubt that there was either direct or indirect act of inducement to
the commission of suicide, the mere fact that the husband treated
the deceased wife with cruelty is not at all enough to convict, the
accused under Section 306, I.P.C. In the case on hand, the
witnesses, P.Ws. 1 to 3, 5, 6 have spoken only about what the
deceased/D1 told them. They have only spoken that on several
occasions either by phone or in person, the deceased/D1 told
them that she was subjected to harassment by her husband.
Except such vague statement, nothing more is found to satisfy the
ingredients under Section 107, I.P.C. The learned Senior Counsel
further submits that the allegations which were spoken by the
witnesses do not find a place in the earlier report of the Revenue
Divisional Officer. The said omission has also been established
by way of contradictions and so much weightage cannot be given
to the evidence of these witnesses.

8. In my opinion, the evidence of these witnesses would indicate
that, the deceased/D1 was harassed by the accused as there was
misunderstanding between them. This will not constitute abetment
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18

as defined under Section 107, I.P.C. and therefore, the conviction
under Section 306, I.P.C. cannot be sustained at all.

9. Now so far as the question of conviction under Section 498-A,
I.P.C. is concerned, here, the term “Cruelty” has been explained
in Section 498-A, I.P.C. as follows:

(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

(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.

10. The learned Government Advocate (Criminal Side) would
submit that the act of the accused would fall within the
Explanation (a) to Section 498-A, I.P.C. But, I am not persuaded
by the said argument. In my considered opinion, a close look into
the evidences of P.Ws. 1 to 3, 5 and 6 would go to show that
though the conduct of the petitioner would amount to harassment,
the same would not fall within the definition of cruelty in terms of
Section 498-A, I.P.C. since the conduct of the petitioner was not
in the nature of likely to drive the deceased to commit suicide. As I
have already stated, misunderstanding between the husband and
wife and the consequent domestic quarrels cannot be termed as
“Cruelty” in terms of Section 498-A, I.P.C. Therefore, the
conviction under Section 498-A, I.P.C. also cannot be sustained.”

33.With regard to the conduct of the Revenue Divisional Officer Enquiry, Ex.P8

is the joint statement recorded from PW.1 and PW.2, which contains finger

prints of PW.1 and PW.2, based on which the joint statement was stated to

have been recorded, which creates a grave doubt with regard to the manner

in which the RDO enquiry was conducted. Further, though the independent

witnesses have been examined during the RDO enquiry, they were not

examined before the Court. In the absence of valid evidence in support of the

Prosecution, the Trial Court erred in convicting and sentencing the
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19

Appellants on the uncorroborated evidence and the evidence of PW.1 and

PW.2, who have not supported the case of the Prosecution.

34.With regard to placing reliance on Ex.P8, statement and RDO opinion, when

none of the witnesses have supported the case of the prosecution before the

trial Court, the statement given before the Revenue Divisional Officer can

only be taken as a statement recorded under Section 161 Cr.PC during the

course of investigation and without the statements having been corroborated,

the report of the Revenue Divisional Officer cannot be relied on.

35.In Gunasekaran V. State by the Inspector of Police, Perambalur Police

Station reported in (2017) 1 L.W (Crl) 88, it has been held as follows :

“41. A statement given by a witness to a Revenue Divisional officer
under Section 176 r/w Section 174 Cr.P.C. is also a ‘previous
statement’. It is not a ‘Substantive piece of evidence’. Because it is
not recorded before the Trial Court on oath. It is recorded
‘elsewhere’. It is recorded outside the Court, namely, before the
R.D.O. It is also like a statement given to a Police Officer during
inquest under Section 174 Cr.P.C. The only difference is instead of
a Police Officer a Revenue Official conducts the inquest and the
inquiry thereon. After his enquiry, the R.D.O submits his (inquest)
report.

42. In Kuldip Singh vs. State of Punjab [AIR 1992 SC 1944 1992
Crl.LJ 3592] the Hon’ble Supreme Court held that although the
contents of the inquest report cannot be treated as evidence, it can
be looked into to test the veracity of the witnesses.

43. Statement given to R.D.O. can be used by the defence to
contradict the witness because it is also a previous statement. The
Court cannot mark a police statement recorded under Section 161
Cr.P.C. equally, the Court cannot mark a statement given to the
R.D.O. Under certain circumstances, they can be marked as
defence exhibit.

44. The danger of marking, admitting statement given to a R.D.O.

in evidence is that the mind of the Court will be prejudiced. And a
statement not given before the Court being introduced in the
evidence. A statement given to police during investigation under
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20

Section 161 Cr.P.C. is not marked. Likewise, a statement given to
R.D.O. also should not be marked.”

36.Further, PW.1 had rescinded from Ex.P1, the statement given to the Police,

based on which, Ex.P2, First Information Report was registered. As stated

above, all the witnesses including the relatives and the Panchayatars, who

have been examined by the Revenue Divisional Officer, have turned hostile

and they have not supported the case of the Prosecution. When such being

so, the report of the RDO based on the statement given by the witnesses

who have turned hostile in Court, cannot be taken as substantive piece of

evidence.

37.Further, the Trial Court had also placed reliance on Ex.P13 to Ex.P17,

statements recorded under Section 164 of Cr.PC by the Magistrate. Now,

what is to be seen is as to the use, value and objective behind such

statements, what is their nature, whether it can be used against the accused

and whether it can be used by the accused in his favour. In this regard, it is

apposite to refer to the decision of the Division Bench of this Court reported

in 2013 2 LW Crl. 169 (R.Palanisamy Vs. Inspector of Police), wherein it

was held as under:-

“”2.It is relevant here to note the aspects relating to the recording of
statement of witnesses contained in Section 164 Cr.P.C., they runs
as under :

“164. Recording of confessions and statements. (1) Any
Metropolitan Magistrate or Judicial Magistrate may, whether or not
he has jurisdiction in the case, record any confession or statement
made to him in the course of an investigation under this Chapter or
under any other law for the time being in force, or at any time
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21

afterwards before the commencement of the inquiry or trial:

Provided further x x x x x x x x (2) x x x x x (3) x x x x x (4) x x x x x
(5) Any statement other than a confession made under sub-section
(1) shall be recorded in such manner hereinafter provided for the
recording of evidence as is, in the opinion of the Magistrate, best
fitted to the circumstances of the case; and the Magistrate shall
have power to administer oath to the person whose statement is so
recorded.

(6) The Magistrate recording a confession or statement under this
section shall forward it to the Magistrate by whom the case is to be
inquired into or tried.”

66. We have carefully perused the entire oral and documentary
evidence let in by the prosecution in this case. Only legally
permissible evidence shall go to the record of evidence. The
evidence which cannot be admitted shall not form part of the record
of evidence. For instance, hearsay evidence shall not go into the
record of evidence. So also the evidence of witness, which is
against the prosecution version of the case, disowned statement of
a witness recorded under Section 164 Cr.P.C., shall not become
record of evidence.

38.In AIR 1972 SC 468 (Ram Kishan Singh Vs. Harmit Kaur), it had been held

that a statement under Section 164 of Cr.PC is not a substantive evidence.

39.A statement given by a witness under Section 164 of Cr.PC is like a

‘previous statement’ given during the investigation under Section 161 of

Cr.PC. It is not a substantive evidence adduced before the Trial Judge,

because it was not recorded in the presence of the accused and because , it

was recorded – ‘res inter alios acta’ – recorded behind the back of the

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22

accused and because it was recorded from a witness during the

investigation.

40.In this case, when the statements under Section 164 of Cr.PC were marked,

which have not been recorded before the Sessions Judge, but recorded

before the Magistrate, at a time when the accused was not in picture,

became part of the records, then the Trial Court should not have relied on

such statements to base its conviction and there is the danger of the Trial

Court using them as substantive evidence.

41.On analysis of the entire evidence and in the light of the decisions cited

supra, this Court is of the firm opinion that the Prosecution has failed to

prove the charges against the the Appellants beyond reasonable doubts and

that none of the basis chosen by the Trial Court to convict the Appellants has

the sanction of law and the Trial Court erred in convicting the Appellants

placing reliance on the untested statement recorded by PW.9, Revenue

Divisional Officer and exhibits and placing reliance on the statement

recorded under Section 164 of Cr.PC from the witnesses, more particularly,

when the other independent witnesses, from whom the statement under

Section 161 of Cr.PC had been recorded, have not been examined before

the Court and thus, the Prosecution has miserably failed to prove the guilt

of the Appellants/accused under Sections 498A and 306 of IPC and hence,

conviction and sentence under Sections 498A and 306 of IPC is not

sustainable and consequently, the Appellants are entitled for acquittal.

42.In the result, this Criminal Appeal is allowed. The impugned judgement of

conviction and sentence is set aside. The Appellants are acquitted of the
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23

charges levelled against them. The bail bond if any executed by them shall

stand cancelled and the fine amount if any paid by them shall be refunded to

them.

21.11.2019

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

To:

1. The Sessions Judge, Mahila Court, Salem.

2. The Public Prosecutor, High Court, Madras

3. The Inspector of Police, Kondalampatti Police Station, Salem

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24

A.D.JAGADISH CHANDIRA, J.

Srcm

Crl.A.No.509 of 2017

21.11.2019

http://www.judis.nic.in

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