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Nageshkumar-vs-State By Inspector Of Police on 20 January, 2010

Madras High Court Nageshkumar-vs-State By Inspector Of Police on 20 January, 2010

DATED: 20.01.2010

CORAM:

THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

Crl.A.No.208/2005

Nageshkumar Appellant

Vs

State by Inspector of Police

R4 Pondy Bazaar Police Station

Chennai Respondent

Prayer:- This Criminal Appeal is filed against the judgement dated 24.2.2005 passed in SC.No.281/2002 by the Magalir Neethimandram, Chennai convicting and sentencing the appellant/A1 for the offence under Section 305 of IPC to undergo ten years of Rigorous Imprisonment and to pay a fine of Rs.5000/-, in default to undergo Simple Imprisonment for six months and for the offence under Section 306 (two counts) to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.2000/-, in default to undergo Simple Imprisonment for two months. For Appellant : Mr.V.Gopinath, SC for

Mr.V.Senthilmurugan

For Respondent : Mr.Hasan Mohammed Jinnah, APP

JUDGEMENT

This Criminal Appeal is filed against the judgement dated 24.2.2005 passed in SC.No.281/2002 by the Magalir Neethimandram, Chennai convicting and sentencing the appellant/A1 for the offence under Section 305 of IPC to undergo ten years of Rigorous Imprisonment and to pay a fine of Rs.5000/-, in default to undergo Simple Imprisonment for six months and for the offence under Section 306 (two counts) to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.2000/-, in default to undergo Simple Imprisonment for two months.

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

a. The deceased Ramadevi is the wife of the Appellant/A1. A2 and A3 are the parents of the Appellant. PW.2 Narasima Naidu is the father of the deceased Ramadevi and PW.1 Gayathri Devi is her sister. PW.3 Saradha is the friend of Ramadevi. The deceased Raghul and Lakshmi are the son and daughter of the deceased Ramadevi. The marriage between Ramadevi and the Appellant took place on 19.8.1978. At the time of marriage, PW.2 gave 50 sovereigns of jewels apart from 10 acres of land and two houses to the deceased Ramadevi. All of them were residing in a joint family at Nellore, Andhra Pradesh. During 1983-1985 the parents and brother of the Appellant were residing in the upstairs and the family of the Appellant was residing in the down stairs. During 1985, A2 and A3 came to Chennai and during 1996, the deceased Ramadevi came along with her Children to join her husband at Chennai. b. Right from the time of marriage, the deceased Ramadevi was ill-treated by her husband and in-laws and the Appellant used to beat her and the accused persons always used to harass the deceased Ramadevi by demanding money from her father. There were misunderstandings between the Appellant and the deceased Ramadevi. The Appellant sent a notice for divorce from her and due to intervention of the elders, the matter was compromised. During 1994, the deceased Ramadevi was living with her parents and the Appellant did not allow her to see her children. The deceased Ramadevi with the assistance of PW.3 was seeing the children only in the School. Ramadevi was also complaining that she was not given proper food. After coming to Chennai, Ramadevi was complaining to her sister that the accused persons were not willing to pay money to continue the Engineering Course of Raghul, the deceased son of the Appellant and her daughter Lakshmi was having a cleft, which necessitated to undergo an operation. The second and 3rd accused always teased Lakshmi on that account and openly said that they can save money if Lakshmi died. Similarly, they also felt it as a burden to pay money to Raghul for his Engineering course. She was also informing to her sister that the second and third accused have felt that with the arrival of Ramadevi, the expenditure has increased and the abortion she underwent also incurred some unnecessary expenditure. d. During 1998 the Appellant along with his wife and children had been to Thirupathy. During that time, Raghul had told PW.1 Gayathri that they would visit her at Nellore. The photographs taken in Thirupathy are marked as Ex.D5 (series) and the negatives are Ex.D6 (series). But, Raghul did not visit Nellore, but only sent the telegram/Ex.P2. Ex.P3 is the letter dated 9.5.1996 sent by Raghul to Gayathri. Because of greed over money, A1 to 3 tortured Ramadevi and her children and therefore, all of them decided to commit suicide. e. On 14.8.1998 the Appellant took food in the house of A2 and A3 and went to his house and found that the door was locked and he came to her parents house to take duplicate key. With the duplicate key, the Appellant was not able to open the door, since the door was locked from inside. The Appellant/A1, A2 and DW.1 suspected that some thieves would have caused injuries to the children and therefore, they went to the Police Station and informed the police and gave a complaint and the Police broke open the door and found Ramadevi and her children hanging. Before committing suicide the deceased Ramadevi and her two children wrote several letters to Gayathri under Ex.P4 Cover and also a letter Ex.P5 to the Hon’ble (The Then) Chief Minister of Andhra Pradesh viz. Mr.Janardhana Reddy. f. On receipt of the complaint given by Nagesh Kumar, PW.9 the Inspector of Police of R4 Pondy Bazaar Police Station registered a case in Cr.No.2535/1998 under Section 174 of Code of Criminal Procedure and prepared FIR Ex.P30. PW.9 went to the place of occurrence and prepared the observation mahazar Ex.P32 and a sketch Ex.P31 and came to the conclusion that the deceased Ramadevi was responsible for the suicide and based upon the statement of the father of Ramadevi, he closed the proceedings and the report is Ex.P33. g. After getting information on the next day, the father and sister of the deceased Ramadevi came to Chennai and PW.2 lodged a complaint before the police. Since PW.2 was threatened, he gave a letter to the Inspector of Police under Ex.P37 to take action according to law. PW.1 Gayathri Devi after going to Andhra Pradesh received all the letters sent by Ramadevi and she decided to proceed with the criminal case. Therefore, PW.1 filed a private complaint Ex.P1 before the learned Magistrate concerned. The complaint was forwarded to PW.9 the Inspector of Police. h. PW.9 again registered a case in Cr.No.2737/98 under Sections 306 read with 305 of IPC and prepared FIR Ex.P27 and examined the witnesses and recorded their statements and recovered the letters written by the deceased and also sample hand writing of those persons and sent it for the expert opinion. PW.4 Srihari is the handwriting expert and he gave a report Ex.P13 and the reasoning sheet for his opinion is Ex.P12. Exs.P14 to 16 are the reference materials used by PW.4. PW.9 recovered the communication Ex.P26 from the Sree Ram Engineering College and took photographs Ex.P24 of the scene of occurrence and its negatives are Ex.P25 through PW.7 and conducted inquest over the body of the deceased persons and prepared inquest reports Ex.P34 to 36 and gave a requisition to the Doctor to conduct post mortem on the body of the deceased persons. PW.5 Dr.Shanmugam conducted post mortem and on receipt of viscera reports Ex.P20 to 22, opined in the post mortem certificates Ex.P17 to 19 that the deceased persons died of asphyxia due to hanging and PW.9 after completing investigation, filed a final report against the accused under Sections 498A, 306 and 305 of IPC.

3. The case was taken on file in SC.No.281/2002 by the Magalir Neethimandram and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 9 witnesses (PW.1 to PW.9} and also relied on Exs.P1 to P37. On side of the defence, one Ashok Kumar was examined as DW.1 and Ex.D1 was marked.

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 denied the same as totally false.

5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the Appellant/A1 guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.

6. This court heard the submissions of the learned counsel on either side and also perused the material records placed.

7. Mr.V.Gopinath, the learned senior counsel for the Appellant strenuously contended that the evidence of PW.1 and 2, the sister and father of the deceased are unacceptable and unreliable, as they have not stated many vital things during the investigation which for the first time were stated in the court. The learned counsel pointed out to the said omissions in their evidence before the court elicited by the defence counsel. Though PW.1 and 2 denied the suggestion about the said omission, but the investigating officer PW.9 admitted about such omission in the statements under Section 161 of Cr.PC of PW.1 and 2.

8. It is no doubt true that certain material points have been omitted to be stated by PWs.1 and 2 during the investigation. Few omissions that were elicited are given below. PW.1 has not stated that the Appellant insisted his wife to get groceries only from her father and that during 1993, the Appellant locked the deceased Ramadevi inside the house after taking the two children along with him to Chennai and that her father-in- law was teasing the deceased Lakshmi having cleft on her lip. When PW.2 spoke to the second and third accused about their unwillingness to pay money for the Engineering Course, they told him not to interfere in their family matters and when the second accused refused to pay money to the Engineering Course, the deceased Ramadevi gave her jewels first, which was in possession of the 2nd accused to the first accused and paid fees for the said course and when the deceased Ramadevi asked money for payment to the Engineering College, the Appellant and the 2nd accused told her and her children to die and so on. Pointing out to the improvements made in their evidence before the court for the first time, the learned senior counsel argued that no reliance could be placed on their testimony to base conviction of the Appellant. He submitted that the trial Court has not discussed the said evidence in a right perspective manner and brushed aside the said contradictions and omissions which warrants this court to reappraise the evidence.

9. On the other hand, Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor supported the judgement and submitted that the Trial Court has rightly analysed the evidence more particularly the letters written by the deceased immediately before her death, as they are admissible under Section 32(1) of Indian Evidence Act and rightly found the Appellant guilty.

10. As pointed out by the learned senior counsel for the Appellant, PW.1 and 2 have not stated many vital points in their statements made to the investigating officer at the time of investigation. It is not disputed that all the three committed suicide. It is seen from the evidence that PW.1 and 2 were not aware of the facts personally and came to know only when the same was informed to them by the deceased Ramadevi. In fact, the deceased were not allowed to see PW.2 and other family members, which had been complained by the deceased persons in the letters written marked as Exhibits. Though under Ex.P37 letter, PW.2 the father of Ramadevi had stated that he does not know the reasons for their death, however, he had asked the Inspector of Police to take action as per law. But, as rightly pointed out by the Trial Court, the final report under Section Ex.P33 did not refer to the suicide notes left by two children and the reasons assigned for closing the Prosecution initially was not proper.

11. The argument advanced is that the evidences were too meagre and unreliable and the Prosecution could not prove the ingredients of Section 306 of IPC, as there was no instigation by the Appellant nor there was any conspiracy for the commission of that offence. It is relevant to refer to the observation made by the Honourable Supreme Court in the case of Sat Pal Vs. Delhi Administration [1976-2-SCR-11] to the following effect: "It emerges clear that on a criminal prosecution when a witness is cross examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record that part of his testimony which he finds to be creditworthy and act upon it.

12. In cases of this nature, direct evidence is hardly available. The instant case is required to be examined in the light of other evidence namely (a) Ex.P5/P5A letter written by the deceased Ramadevi to Janardhana Reddy (Ex.Chief Minister of Andhra Pradesh dated 13.8.1998, (b) Ex.P6/P6A letter written by Ramadevi to PW.1 Gayathri dated 14.8.1998, (c) Ex.P7/Ex.P7A letter written by the deceased Ramadevi to the 1st accused dated 14.8.1998 and (d) Ex.P8 letter written to his father dated 14.81998, (e) Ex.P9/P9A letter written by Lakshmi to her father dated 14.8.1998, (f) Ex.P10/10A letter written by Ramadevi to PW.1 Gayathri, (g) Ex.P11/P11A letter addressed to children of PW.1 Gayathri by the deceased Ramadevi and (h) Ex.P28/P28A letter written by the deceased Ramadevi dated 13.9.1998 to Saradha. (The letters which are in Telugu are accompanied by the translated versions). Those letters assume great importance in the evidence.

13. It is the above evidence in the nature of dying declaration of the deceased and the conduct of the accused, which are to be taken into consideration for adjudicating upon the truthfulness or otherwise of the Prosecution case. On going through the said letters, particularly, Ex.P5, P7 and P8, it is clear that the Appellant and the others have created conditions which have compelled the deceased Ramadevi to take the extreme step along with her children. Those letters reveal their plight in the house of the Appellant and they apprehended that they would continue to suffer intolerable miseries, if they survived. Those letters clearly bring out their turmoil where under they have taken the extreme step of putting an end to their life.

14. In Ex.P5 letter written by the deceased Ramadevi to the then Honb’ble Chief Minister of AP, Mr.Janardhana Reddy just before she and her children committed suicide, she has stated that she suffered cruel treatment at the hands of the accused and since the 2nd accused threatened the 1st accused to give his self earned properties to his another son, the Appellant listened to his parents and harassed her consuming alcohol. They had not allowed her to see her parents, brothers and sisters and her relations and they did not send her even when her grand mother died. She had stated that 30 sovereigns of jewels given to her at the time of marriage were taken by the accused. She had specifically stated that she was ill treated and harassed, but was tolerating it for the sake of her children and when her children also met with the same treatment for nearly four years before their death, they have decided to end their life. She has further stated that when her children committed mistake and they were beaten by her, she was torched by the accused persons on her face and arms.

15. In Ex.P7/P7A letter written to her husband/ Appellant herein, she has cited few instances wherein she had suffered mental pain and agony which have pushed her and her children to end their life. All those letters referred to above are indeed very emotional and had been written in extreme distressing mental condition. The relevant portions in each of such letter has been extracted by the Trial Court and the Trial Court analysed it in detail and I see no reason to discard the said evidence. The letters clearly demonstrate that the deceased Ramadevi and her children were so much mentally tortured by the accused persons and hence, they have decided to put an end to their life unable to tolerate the mental agony and cruelty meted out to them. On a reading of those letters, I am able to see that it is not a stray incident or torture that have made them to take this decision, but there was persistent and unabated harassment inflicting mental injury to the deceased persons.

16. The deceased persons Ramadevi and Rahul have given graphic description of the injuries suffered by them mentally on each instance of ill treatment and the letters has given the clear impression that the Appellant never cared for his wife and children and in fact, he had left no stone unturned to ensure their happy independent and peaceful living or at least to mitigate the mental torture and agony caused to his wife and children. I do not find even a slightest doubt regarding the circumstances and instances which have been enumerated in those letters which had led to an helpless situation where the deceased have virtually left with no option except to take an extreme step of putting an end to their life.

17. The charge against the Appellant must be real in the backdrop of the above facts. In this factual situation, can it be said that the Appellant/husband had not been responsible in creating circumstances which would provoke or force them into taking the only alternative left open to them namely suicide and can it be said that the husband did not realise where he was leading his wife by his willful conduct. In the peculiar facts and circumstances of the case, I am unable to countenance the argument advanced by the learned senior counsel for the Appellant.

18. The learned senior counsel for the Appellant relied on the decisions rendered in the cases of Sohan Raj Sharma Vs. State of Haryana [2008-2-MLJ-Crl-645-SC], Sanju alias Sanjay Singh Sengar Vs. State of MP [2002-SCC-Crl-1141], Ramesh Kumar Vs. State of Chhattisgarh [2002-SCC-Cri-1088] and Bhagwan Das Vs. Kartar Singh and others [2007-Cri.LJ-3420] to strengthen his argument that when there is no proof of direct or indirect acts of incitement by the Appellant to the commission of suicide, he cannot be convicted for abetment of suicide by the deceased.

19. Mental cruelty broadly means, when the other party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and and husband, as a result of which, it becomes impossible for the party who has suffered to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the other spouse. To arrive at such a conclusion, regard must be had to the context in which the allegations and accusations are made by the spouse who suffered such mental cruelty.

20. In the case of Md.Hoshan and another Vs. State of AP [AIR-2002-SC-3270], the Honourable Supreme Court while dealing with the ‘cruelty’ held that mental or physical torture should be ‘continuously’ practiced by the accused on the wife. The Honourable Supreme Court observed as under:-

"Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned the social background, the environment education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not."

21. As to what would constitute instigation for the commission of an offence would depend upon the fats of each case. Therefore, in order to decide as to whether a person has abetted the instigation for the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire evidence in the case. The act of abetment attributed to the Appellant is not to be viewed or tested in isolation. Such being the case, the plight, unhappy atmosphere and the helpless state and frustration in the life of the deceased Ramadevi and her children had to be looked into seriously and certainly the Appellant was responsible for creating such circumstances.

22. Traditionally in the society, Woman is subjected to the whims and caprices of man, especially when it relates to the relationship of wife and daughter-in-law in a joint family. Life in this case to the deceased Ramadevi had become so intolerable and so miserable, when the cruelty and ill treatment spread over to her grown up children, that had dragged them towards suicide. Unhappy atmosphere in the family of the deceased and indifferent attitude of the Appellant proved that the Appellant has failed to guard his wife and children and he failed in his responsibility owed to his wife and children. There is positive and convincing evidence that the indifferent attitude of her husband made her and children fed up with their life and certainly there is a proximity and nexus between the conduct and behaviour of the Appellant with that of the suicide committed by his wife and the children.

23. The Trial Court has considered every material on record and analysed the evidence in a right perspective manner and no interference in the conviction and sentence is warranted.

24. In the result, this Criminal Appeal is dismissed. It is seen from the records that the Appellant had been enlarged on bail by this court. The bail granted to the Appellant is hereby cancelled. The period of sentence already undergone by the Appellant is ordered to

ARUNA JAGADEESAN, J.

Srcm

be set off and the concerned court shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence.

20.01.2010

Index:Yes/No

Web:Yes/No

Srcm

To:

1.The Magalir Neethimandram, Chennai

2.The Public Prosecutor, High Court, Madras

Pre Delivery Judgement in

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