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Suresh-vs-State Rep. By Inspector Of Police on 29 October, 2009

Madras High Court Suresh-vs-State Rep. By Inspector Of Police on 29 October, 2009

DATED 29.10.2009

CORAM

THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN

Crl.A.No.1433 of 2002

Suresh Appellant

Vs.

State rep. By Inspector of Police,

Annupparpalayam Police Station,

Coimbatore District Respondent

Prayer:- This Criminal Appeal is filed against the judgement dated 4.9.2002 passed in S.C. No.78 of 2002, by the learned Additional District and Sessions Judge (Fast Track Court No.5), Coimbatore at Tiruppur convicting and sentencing the Appellant for the offence under Section 306 of IPC to undergo Rigorous Imprisonment for eight years and to pay a fine of Rs.10,000/- and for the offence under Section 498A of IPC to undergo Rigorous Imprisonment for three years and to pay fine of Rs.5000/- and ordering the both the sentences to run concurrently. For Appellant: Mr. N. Duraisamy, (Amicus curaie)

For respondent: Mr.Hasan Mohammed Jinnah, APP , APP

JUDGMENT

Earlier when the matter was taken up for final disposal, the learned counsel on record appearing for the appellant Mr.N.Ishtiaq Ahmed filed a memo that he has sent a letter that has been returned with an endorsement as no such addressee and reported no instructions. Therefore, this Court appointed Mr.N.Doraisamy as the amicus curiae and adjourned the matter to enable him to prepare the case and the matter is taken up today for final disposal.

2. The appellant stands convicted and sentenced in S.C. No.78 of 2002 dated 04.09.2002 on the file of Additional District and Sessions Judge, (Fast Track Court No.5), Coimbatore at Tiruppur for an offence punishable under Section 306 IPC to undergo eight years rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo two years rigorous imprisonment and under Section 498-A IPC to undergo three years rigorous imprisonment and to pay a fine of Rs.5,000/- in default to undergo six months rigorous imprisonment. The learned Additional Sessions Judge has directed both the sentences to run concurrently.

3. The brief facts of the prosecution case are as follows:

(a) PW7 Mayangaathamaal has got three sons and three daughters. Her youngest daughter is the deceased Pangajavalli and she was working in a Baniyan Company in Anupapaalayam. There was love affair between the deceased and the accused and they got married without the knowledge and consent of both the parents. They were living separately in the house owned by PW6 Thilagavathy. (b) According to the prosecution, PW7 the mother of the deceased alone used to visit her daughter and the brothers and sisters of the deceased never visited her, as she married against the will of her parents and relatives. The deceased gave birth to a male child, but it died soon after delivery. The deceased was suffering from asthma complaint. The accused never used to go to work properly, which resulted in frequent quarrel between the deceased and the accused. The deceased had disclosed the same to her mother PW7 whenever she visited her house. PW2 and PW3, the brothers of the deceased and PW4 the sister of the deceased were also not in talking terms with the deceased, as they were against her marrying his lover. But however their mother had informed them that the accused did not go to his work regularly. (c) On the date of the incident i.e. on 31.01.2001, PW7 had visited her daughter and handed over the milk packet to her. At that time, she saw that the deceased was quarreling with her husband, as he was not going to his work. But, when she entered into the house, they stopped their feud and PW7 handed over the milk pocket and returned to her house. After half an hour, she saw a crowd in front of her daughter’s house and learnt from them that her daughter had poured kerosene and set fire to herself. Immediately, she rushed to her daughter’s house and enquired her as to why she had done so. It appears that the deceased had told her that she cannot bear the harassment from her husband and other relatives were not looking after her and out of that frustration she had set fire to herself. (d) PW6, the house owner of the deceased had gone to the Government Hospital to give treatment to her son for snake bite and returned home. She came to know that the deceased had set fire to herself. She had seen the accused and deceased quarreling with each other. PW5, another tenant and neighbour of the deceased had returned home just then after seeing her mother and saw smoke emanating from the house of the deceased and the accused was standing nearby the deceased and the deceased was in flames. She had immediately gone to PW7’s house and informed her. (e) On getting information, Kumaralingam PW1, brother of the deceased also came there and took her in an Auto to the Government Hospital.

4. PW1 lodged a complaint to the Sub Inspector of Police, PW11 who registered the case in Crime No.56 of 2001 under Section 171 Cr.P.C. and prepared Ex.P6 FIR. Since the deceased had died within seven years of the marriage, he had forwarded the FIR to the Deputy Superintendent of Police, Tiruppur and also to RDO for further action. PW10 Mr. Rajamanickam, Judicial Magistrate, Tiruppur had received information on 31.01.2000 at about 3.10 p.m. and had gone to the Tiruppur Government Hospital and had seen the deceased in the female ward. He had put questions to the deceased to satisfy himself, as to whether the deceased was in a fit state of mind to give dying declaration. He had also enquired Dr.Sarathy regarding the fit state of mind of the deceased. He had commenced to record the dying declaration at 3.30 p.m. and he completed the same at 3.40 p.m.

5. In the dying declaration Ex.P5 the deceased had stated that she had gone to her work at 8.00 a.m. and she had poured kerosene herself. She has also stated that no one is responsible for the suicide committed by her. On 01.01.2001 the RDO Tiruppur conducted enquiry under Section 174 Cr.P.C. and recorded statements from the witnesses, he conducted inquest on the body of the deceased and gave a report Ex.P7 that there was no dowry harassment in relation to the death of the deceased.

6. The Deputy Superintendent of Police, Tiruppur PW13 received the FIR, took up the investigation, visited the place of occurrence and prepared exhibit P2 observation mahazar and exhibit P8 rough plan in the presence of the witnesses. He had recovered MO1 match box, MO2 two match sticks and MO3 one plastic stick from the place of occurrence under exhibit P3 mahazar. He had recorded the statements of PW1 to PW7. Dr.Sarathy attached to the Government Hospital, Thiruppur conducted post mortem on the body of the deceased on 02.07.2001 at 11.00 a.m. after getting the requisition from the Deputy Superintendent of Police. The postmortem certificate contains the following observations regarding the injuries sustained by the deceased. "Identification and caste marks:-

(1) Could not be made out due to extensive burns.

The body was first seen by the undersigned at 11 A.M. On 2.2.2001. Its condition then was rigor mortis present in all 4 limbs.

Post-Mortem commenced at 11 A.M.

Appearances found at the post mortem: Body of a female lies on its back, symmetrical. Eye closed. Mouth closed. Tongue kept inside. Burns involving both upper and lower limbs, front of chest back, upper half of abdomen except lower half of the abdomen and genital region. 3rd degree burns.

Internal Examination:

No fracture of ribs. Heart: 250 gms. Pale, Lungs left 450, Right 500 gms. Pale, Hyoid intact. Stomach: Contains 50 ml of fluid. Liver 1200 gms pale. Kidney: 110 gms each, pale. Intestine distended with gas. Uterus normal size. Cavity empty. Skull No fracture. Brain 1400 gms.

The deceased would appear to have died of shock due to extensive burns about 30-36 hrs. prior to Post-Mortem. "

7. The postmortem report is Ex.P4. He had altered the FIR into an offence under Section 306 IPC and sent the altered report exhibit P9 to the Court. He arrested the accused near Tiruppur bus stand and recorded the confession statement voluntarily given by him. Further investigation was conducted by PW14 Deputy Inspector of Police and after completing the investigation, he laid charge sheet against the accused for the offence punishable under Sections 306 and 498-A of IPC.

8. The incriminating materials appearing against the accused was put to the accused to which he denied the same in entirety. The Trial Court in analysing the evidence convicted the accused under Sections 306 and 498 of IPC and sentenced him to undergo the sentences as stated above.

9. Mr.N.Doraisamy, the amicus curiae counsel took me through the entire evidence of Pws.1 to 7 and there are several contradictions in the evidence, and the other materials on record and also in the dying declaration recorded by the learned magistrate, wherein the deceased has stated that she set fire to herself, as she was unable to bear the stomach ache and asserted that no one was responsible for her suicide. He would submit that the prosecution has not established its case beyond reasonable doubt and hence, the accused is entitled to be acquitted.

10. Though the brothers Pws.1 to 3, Sister PW.4 and mother PW.7 had been examined, none of them except PW.7 had deposed that the cruelty meted out to the deceased by her husband was the cause for her suicide. In fact, the brothers and sisters never visited their sister after her marriage with the accused, as she married his lover without the consent on both sides. PW.1 would state that he has not gone to his sister’s house after her marriage and only their mother used to go there and he came to know through his mother that the accused never go to work regularly and so she was not happy with her matrimonial life after sometime. But, in the cross examination, he admitted that his sister was suffering from severe Asthma which was unbearable and that was the reason for her to commit suicide. This version is spoken to by the other brothers and sisters also. Pws.1 to 7 categorically deposed before the Court that there was no ill treatment or cruelty inflicted by the accused demanding any downy or any other demand. In fact, PW1 would state that the accused also sustained burn injuries, when he tried to save the deceased from burning.

11. The only evidence available on record would be that of the mother of the deceased, who would depose that her daughter told her that the accused was not going to his work regularly and when the deceased questioned him, he asked her to get money from her parental house and told her to die, as she was not of any use to him. PW.7 has come forward with this version only before the Court and she has not stated so to the Revenue Divisional Officer, when she was enquired. But, in the cross she admitted that since her daughter had married the accused without their consent, she never went to her daughter’s house and she also admitted that her daughter was suffering from severe asthma. Before the RDO PW7 has given a statement to the effect that after the love marriage of her daughter with the accused, herself and other members of her family had no connection with her and they came to know that her daughter committed suicide on 31.01.2001 and further there was no dowry harassment in her death. The independent witnesses PW5 and PW6 who are the tenant and the landlord of the house where the deceased lived with her husband have stated that the couple used to quarrel frequently but in cross they also asserted that the deceased had asthma trouble and she suffering due its severity.

12. Though there is some evidence to show that the deceased and the accused were quarrelsome, but it would not in any way lead to any inference that the accused treated her cruelty or harassed her in such a manner driving her to commit suicide.

13. Section 107 of IPC defines ‘abetment’ to mean that a person abets the doing of a thing if he firstly, instigates any person to do that thing or secondly engages with one or more 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.

14. Before adverting further, at this stage, it is relevant to refer to a few decisions of the Honourable Supreme Court for the purpose of disposal of this case.

15. In the case of Sivay Prahaladdas -vs- State of Madhya Pradesh, [1995-SCC-Crl-943], the accused was charged for an offence under Section 306 of IPC on the ground that the appellant during the quarrel is said to have remarked to the deceased "to go and die’. The Honourable Supreme Court was of the view that mere words uttered by the accused to the deceased to "go and die" were not even prima facie enough to instigate to commit suicide.

16. In the case of Mahendra Singh -vs- State of Madhya Pradesh, [1995-SCC-Crl-1157], the accused was charged for an offence under Section 306 of IPC basically upon the dying declaration of the deceased which reads as under:

"My mother-in-law and husband and sister-in-law harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die burning." The Honourable Supreme Court, considering the definition of ‘abetment’ under Section 107 of IPC, found that the charge of conviction of the accused for an offence under Section 306 of IPC is not sustainable, merely on the allegation of harassment of the deceased. The Honourable Supreme Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.

17. In yet another case reported in Ramesh -vs- State of Chattisgarh [2001-9-SCC-618], the Honourable Supreme Court was considering the charge framed and the conviction for an offence under Section 306 of IPC on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence, she had a quarrel with her husband, who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set herself on fire. Acquitting the accused the HSC said: "A word uttered in a fit of anger or emotion without indicating the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that the victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such 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 for abetting the offence of suicide should be found guilty."

18. Reverting to the facts of this case, the Trial Court erroneously accepted the Prosecution’s story that the suicide by the deceased is the direct result of the quarrelsome behaviour of the accused. On the basis of mere not going to work by the accused and when the deceased questioned him he scolded her, the accused cannot be held guilty of abetting the crime of suicide. It can only be said that the deceased must be deemed to have dropped down as a sensitive girl not able to withstand normal jolts of life. The conduct of the accused cannot be held to be willful and deliberate and there is no positive and connive evidence of cruelty and ill-treatment by the act.

19. Taking the totality of materials and evidence on record and facts and circumstances of the case into consideration, it will lead to irresistible conclusion that the accused was not responsible for her death and the conviction and sentence passed by the learned Judge are liable to set aside.

20. In the result, the Criminal Appeal is allowed and the conviction and sentence passed in SC No.78 of 2002 dated 04.09.2002 are set aside and the Appellant is acquitted of the charges levelled against him. The bail bond if any executed by the appellant shall stand terminated and the fine amount if any paid is ordered to be refunded to him.

21. Before parting with this case, this Court places on record its appreciation for the valuable assistance rendered by Mr.N.Doraisamy, Amicus Curiae. The State Legal Service Authority is directed to pay a sum of Rs.2,500/- (Rupees Two thousand and five hundred only) towards his fee.

Vga/Srcm

To

State rep. By Inspector of Police,

Annupparpalayam Police Station,

Coimbatore District

Main – Page

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