Srinivasan v. State rep. by Inspector of Police All Women Police station Pothanur, Coimbatore District.

BAIL SLIPThe Appellants/Accusesd 1 to 3 namely (A1) Srinivasan (A2) Shanmugam (A3) Nirmala were directed to be released on bail asper order of this Court dated 30.9.2008 and made in Crl.M.P.No.1/2008in Crl.A.No.704/08 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.08.2012CORAM:THE HONOURABLE MS. JUSTICE R. MALACriminal Appeal No.704 of 20081.Srinivasan 2.Shanmugam3.Nirmala .. Appellants/Accused 1 to 3v. State rep. by Inspector of PoliceAll Women Police stationPothanur, Coimbatore District. .. Respondent/Complainant(Cr.No.30/05) Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., againstthe judgment of conviction and sentence dated 19.09.2008, made inS.C.No.257 of 2006 on the file of the Sessions Court, Mahila Court,Coimbatore.For Appellant :Mr.V.Gopinath, senior counsel for Mr.A.Arasu Ganesan For Respondent : Mr.C.Emalias Government Advocate (crl.side) J U D G M E N TThe criminal appeal arises out of the judgment of convictionand sentence, dated 19.09.2008, made in S.C.No.257 of 2006 on thefile of the Sessions Court, Mahila Court, Coimbatore, whereby theaccused were convicted for the offence under Sections 498A IPC and306 IPC. Accused 1 to 3 were convicted for the offence under Section498A IPC and sentenced to undergo one year simple imprisonment eachand to pay a fine of Rs.1,000/- each in default in payment to undergosix months simple imprisonment each. They were convicted for theoffence under Section 306 IPC and sentenced to undergo ten yearsrigorous imprisonment each and to pay a fine of Rs.5,000/- each in https://hcservices.ecourts.gov.in/hcservices/ default in payment to undergo 1 year simple imprisonment each. 2.The respondent has filed a charge sheet against theappellants/accused stating that the marriage between A1 and thedeceased Kavitha was solemnized on 26.01.2001. Due to the lawfulwedlock, she gave birth to a male child. A2 and A3 are father-in-lawand mother-in-law of the deceased. On the fateful day, (i.e.) on02.08.2005, at 9.00 a.m., the deceased unable to bear the crueltycaused by the accused 1 to 3, committed suicide by hanging in hermatrimonial home. Thereby the accused 1 to 3 were committed theoffence under Sections 498A and 306 IPC. 3.The case of the prosecution is as follows:(i) P.W.1/Kumarasamy and P.W.2/K.Saraswathi are parents ofthe deceased Kavitha and they are having three daughters and thedeceased Kavitha is the third daughter. P.W.3/Premalatha andP.W.4/Sasikala are sisters of the deceased Kavitha. A1/Srinivasan isthe husband of deceased Kavitha. A2/Shanmugam and A3/Nirmala are herparental laws. The marriage was performed between A1 and deceasedKavitha on 26.01.2001. Due to their lawful wedlock, she gave birth toa male child namely, Visweshwaran, who was studying L.K.G. At thetime of marriage, 20 sovereigns of gold jewels and house holdarticles to the tune of Rs.64,000/- were given to the deceasedKavitha. When the deceased Kavitha was in her matrimonial home,P.W.1 used to contact her daughter over phone regularly. By the time,deceased Kavitha informed that the accused were not happy towards heras she bring inadequate dowry and it would denigrate their prestigein the society. The deceased Kavitha also used to tell about theill-treatment caused by the accused persons and by no reason, theymade quarrel with her. P.W.7/Maniyan, who is the house owner, deposedthat he rented his house to the accused family and after theirmarriage only, they came to reside in his house. P.W.8/Manoharan, whois the friend of A1, stated that he also helped to reunite A1 and herwife, as they were quarreled with each other. P.W.1 also advised herdaughter that everything will be alright in due course and to bearthis type of trouble till her son is grown up and left to his nativeplace. (ii) On 15.06.2001, P.W.1 along with P.W.2 went to Pothanurinorder to meet his daughter. While so the deceased told about thefailure of her matrimonial life and further told that it is highlydifficult for her to live with the accused persons. She also toldthat she was subjected to torture and harassment made by the accusedpersons. (iii) On 02.08.2005, at 8.00 a.m., A1 contacted P.W.1 overphone and asked him to take his daughter Kavitha to his house, sincethere was problem arose between them. Then Kavitha contacted P.W.1over phone and told him that it is highly difficult to live with A1and she also told about the unbearable harassment caused by theaccused persons. On the same day, at 9.15 a.m., A1 again contacted https://hcservices.ecourts.gov.in/hcservices/ P.W.1 over phone and informed that her daughter Kavitha was hangingin the ceiling of the room in the matrimonial home and committedsuicide. (iv) P.W.14/Balakrishnan, who was residing at upper portionof the deceased house, helped A1 to remove the saree, which was usedby Kavitha for hanging. Immediately, A1 along with P.W.14 tookKavitha to S.M. Hospital, where P.W.10/Dr.Bhavani Alagan examined herand declared her dead. (v) After hearing the information from A1, P.W.1 along withhis relatives proceeded to Pothanur and reached the house of theaccused and noticed the dead body of deceased was lying on the floor.Hence, P.W.1 lodged a complaint before Pothanur All Women Policestation. (vi) P.W.12/Manimegalai, the Sub-Inspector of Police,Pothanur, received Ex.P1 complaint on 02.08.2005, at 2.00 p.m. andregistered a case in Crime No.30 of 2005 under Sections 498A and 306IPC and prepared Ex.P7 F.I.R. Since the deceased died within sevenyears from the date of her marriage, P.W.12 sent Ex.P7 F.I.R. alongwith Ex.P1 complaint to the Revenue DivisionalOfficer/P.W.16/Karthiga and P.W.17/Deputy Superintendent of Police. (vii) P.W.17/Gopalsamy, the Deputy Superintendent of Police,received the copy of Ex.P7 F.I.R. from P.W.12, took up the matter forinvestigation. On 02.08.2005, at 2.30 p.m., he went to the place ofoccurrence and prepared Ex.P2 observation mahazar and drew Ex.P18rough sketch in the presence of P.W.5/Ramu and P.W.6/Subramani. Hetook steps to take photograph of the deceased Kavitha.P.W.9/Karthikeyan, Photographer, took photos and the same were markedas Ex.P5 and the negatives were marked as Ex.P6 and the videocoverage was marked as M.O.1/Video C.D. On the same day, P.W.17recovered M.O.2/two pieces of saree used for hanging, and M.O.3 toM.O.7 under Seizure mahazar Ex.P19 in the presence of above saidwitnesses. (viii) In the meanwhile, P.W.16/R.D.O. went to CoimbatoreMedical College Hospital and conducted inquest over the dead body ofKavitha on 03.08.2005 in the presence of Panchayatdars and examinedthe witnesses and recorded their statements. The statement of P.W.1and P.W.2 were marked as Exs.P12 and P11 and the statement ofPanchayatdars were marked as Ex.P13. Inquest report was marked asEx.P15. On the basis of the enquiry, P.W.16 sent Ex.P14/R.D.O.report, in which, it was stated that the death is not due to dowry.After inquest, P.W.16 sent the body of the deceased for post-mortemalong with Ex.P16 requisition. (ix) P.W.11/Usha, Grade-I, P.C., handed over the body ofKavitha along with Ex.P16 requisition to P.W.13/Dr.Thiraviyaraj, whowas the Professor in Kovai Medical College Hospital, for conducting https://hcservices.ecourts.gov.in/hcservices/ autopsy. P.W.13 gave Ex.P8 post-mortem certificate and sent theviscera for chemical analysis. On the basis of Ex.P10 final report,the Doctor opined that the deceased would appear to have died ofhanging. (x) On 03.08.2005, P.W.17 examined the witnesses andrecorded their statements. Then, he arrested the accused at 8.30p.m. and sent them to judicial custody. After completing hisinvestigation, he filed a charge sheet against the accused for theoffence under Sections 306 and 498A IPC. 4.The learned trial Judge after following the procedureframed necessary charges against the accused. Since the accusedpleaded not guilty, the trial Court examined P.W.1 to P.W.17 andmarked Exs.P1 to P19 and M.O.1 to M.O.7. The trial Court placed theincriminating evidence before the accused, the accused denied thesame in toto. On the side of the accused, they were marked Exs.D1 andD2. They also filed written statement, stating that the deceasedKavitha left one suicide note Ex.D1, in which she categorically notedthat she was going to take extreme step to commit suicide of her ownreason and no one had abetted her for committing suicide. Afterconsidering the oral and documentary evidence, the trial Courtconvicted the accused/appellants for the offence under Sections 306and 498A IPC and sentenced them as stated above, against which, theaccused/appellants preferred this appeal. 5.Challenging the conviction and sentence passed by thetrial Court, learned counsel appearing for the appellants wouldsubmit that as per the evidence of P.W.8/Manoharan, he carried onmediation between A1 and deceased Kavitha. He went to the house ofP.W.3, who is the sister of Kavitha and at that time, Kavitha toldhim that she wants to live with A1 separately, since A1 is the onlyson, his parents are not willing to set up the separate family.Learned counsel further submitted that the deceased is havingdepression and hence, she committed suicide on her own reason. Hepointed out the evidence of P.W.1 and stated that Kavitha wanted tomarry a Government servant and hence, there was a delay in hermarriage. A1 is not a Government servant and he is doing business andas his character was good, Kavitha was given marriage to him. SinceKavitha was a B.Com., graduate, she wants to join Bank service, whichwas refused by her in-laws. As per the evidence of P.W.3, in page-21of the typed set of papers, she was stated that her sister wasattempted to commit suicide twice before this incident. It is to benoted that Ex.D1 is the suicide note, which was seized from theplace, where the body of Kavitha has been laid down, but the documentwas not placed before the Court and the trial Court has notconsidered this aspect. It is further submitted that P.W.1 to P.W.4are relative witnesses and they are interested witnesses. As per theevidence of P.W.7 and P.W.8, the deceased Kavitha made petty quarrelswith A1. Most of the independent witnesses deposed that the deceased https://hcservices.ecourts.gov.in/hcservices/ had committed suicide on her own reason only. There is no evidence toshow that the deceased was subjected to cruelty and hence, there isno mensrea for abetment of committing suicide. Therefore, he prayedfor allowing of this appeal. 6.Resisting the same, the learned Government Advocate (Crl.Side) submitted that P.W.1 to P.W.4, who are the parents and sistersof the deceased, are competent persons to speak about the cruelty metout by the deceased. Hence, their evidence are trustworthy andreliable. From their evidence, it is clear that the deceased wassubjected to continuous harassment, which forced her to commitsuicide. She already attempted to commit suicide twice in herlifetime. Since the deceased committed suicide in her matrimonialhome, A1 to A3 are bound to explain as to why she committed suicide,but no explanation has been offered by them. He further submittedthat written statement filed by the accused is clearly proved themotive of accused persons and they took xerox copy of Ex.D1 suicidenote, in which, date and time were not mentioned. The originalsuicide note was not marked before the Court, hence Ex.D1 is not anadmissible evidence. The learned trial Judge considered all theaspects and came to the correct conclusion. Hence, he prayed fordismissal of the appeal. 7.Considered the rival submissions made on both sides andthe materials available on record. 8. On a perusal of record, P.W.1/Kumarasamy andP.W.2/Saraswathi are parents of the deceased Kavitha and they arehaving three daughters and the deceased Kavitha is the thirddaughter. P.W.3/Premalatha and P.W.4/Sasikala are sisters of thedeceased Kavitha. A1/Srinivasan is the husband of deceased Kavitha.A2/Shanmugam and A3/Nirmala are her father-in-law and mother-in-lawrespectively. The marriage was performed between A1 and the deceasedKavitha on 26.01.2001. Due to their lawful wedlock, she gave birth toa male child namely, Visweshwaran, who was studying L.K.G., at thetime of occurrence. Kavitha was committed suicide by hanging on02.08.2005 in her matrimonial home.9.Now this Court has to decide as to whether deceasedKavitha has suffered continuous harassment in the hands of theaccused persons. P.W.7/Manian is the owner of the house, where theaccused persons and the deceased Kavitha were residing in the lowerportion of the house after their marriage. P.W.14/Balakrishnan wasresiding in the upper portion. P.W.15/Jayanthi, who was residing atthe right hand side of the deceased house, deposed that Kavitha wasnot mingled with others and during trial, she turned hostile.P.W.8/Manoharan, who knows A1 from his childhood, deposed that thedeceased Kavitha is of the habit of being taking seriouly even forsmall matters. In respect of watching T.V., a problem arose betweenthem, then she was taken to her maternal home. So P.W.8 went to https://hcservices.ecourts.gov.in/hcservices/ P.W.3's house and had talks. At that time, P.W.1, P.W.2, her paternaluncle, aunt came there and told him that A1 assaulted Kavitha andhence, the problem arose. P.W.8 advised her to join with him.Thereafter, she returned back to her matrimonial home. At that time,P.W.2 insisted that A1 and Kavitha should live separately. Since A1is the only son to his parents, it is not appropriate to make themseparate living. Thereafter, A1 took Kavitha to her matrimonial home.P.W.8 fairly conceded that after two years of this settlement, thedeceased Kavitha committed suicide. It shows that the occurrence hadtaken place after four years from the date of her marriage and therewas difference of opinion arose between the spouses frequently. 10.It is pertinent to note the evidence of P.W.1, who is thefather of deceased Kavitha. P.W.1 in his evidence, stated that on02.08.2005, at 8.30 a.m., A1 contacted him over phone to take herdaughter to his house due to quarrel arose between them. Thereafter,Kavitha contacted P.W.1 over phone and told him that A1 causingunbearable trouble and she is not inclined to live there. Within ½hour to the telephonic talk, A1 again contacted him over phone andtold that his daughter Kavitha committed suicide by hanging herselfand died. That factum has been corroborated by P.W.15/Jayanthi, whois her neighbour. In her cross-examination, she stated that on thedate of occurrence, she noticed that Kavitha was talking over phonenear the Grocery shop and she returned to her house in weepingcondition. At that time, mother of P.W.15 questioned Kavitha as towhy she was weeping. This factum would prove that the deceasedcontacted her father over phone on the date of occurrence. 11.As per the evidence of P.W.1, in his chief-examination,he deposed that A1 contacted him over phone and told him that therewas quarrel arose between them and hence, he insisted him to take herto his house, but A1 did not mention that problem. In the writtenstatement filed by the accused persons, they mentioned that thedeceased Kavitha was upset, since her son Visweshwaran did not studywell and due to this, there was quarrel arose between them. But A1never mentioned the above incident to P.W.1, when he contacted himover phone. After A1 made a call to P.W.1, the deceased Kavithacontacted her father over phone and told that it is highly difficultto live with A1 and she also told about the unbearable harassmentcaused by the accused persons. Within ½ hour, A1 again made a call toP.W.1 and informed that her daughter was died by committing suicide.It would reveal that on the date of occurrence, there was quarrelbetween both A1 and the deceased Kavitha. Since Kavitha died in hermatrimonial home, the appellants/accused 1 to 3 are competent personsto give explanation for commission of offence. 12.As per the evidence of P.W.14/Balakrishnan, who isresiding in his brother-in-law's house for rent, deposed that heknows Kavitha and A1 for the past eight months. On 02.08.2005, afterhearing noise from the house of the deceased, he went to there and https://hcservices.ecourts.gov.in/hcservices/ found Kavitha was hanging in a saree on the ceiling of the room. Hehelped A1 to cut and remove the saree from the neck of Kavitha andthen, they took her to S.M. Hospital, where P.W.10/Dr.Bhavani Alaganexamined Kavitha and declared her dead. In his cross-examination, hestated that one Ambujam mami informed him that Kavitha contactedsomebody over phone in the Grocery shop and she was returned inweeping condition. In such circumstances, his evidence would revealthat he is supporting the accused persons. 13.Now this Court has to decide as to whether the evidenceof P.W.1 to P.W.4, who are the relatives of the deceased Kavitha, arereliable. P.W.2 in her cross-examination, fairly conceded that duringvacation time, the accused came with car and they visited the templesat Thiruchi. P.W.1 in his evidence, stated that her daughter is nothaving an habit of writing letters and she used to contact him overphone. In his cross-examination, P.W.1 deposed that Kavitha was notmingled with her neighbours, since the accused persons restrained herto talk with them. As per the evidence of P.W.3, whenever Kavithaused to stay in her house, she was seen worried and told that at theinstigation of A2 and A3, A1 often made quarrel with her. At thattime, P.W.3 consoled and convinced her that there would be ups anddowns in life and assured to see later. As per the evidence of P.W.4,whenever Kavitha used to contact her over phone, she complained thather husband and in-laws caused cruelties and ill-treated her.Considering the evidence of P.W.1 to P.W.4, they categorically statedthat as to how the deceased Kavitha was subjected to cruelty.According to Section 498A IPC, cruelty consists of both mental andphysical cruelty. Because of the attitude of A1 to A3, Kavitha gotdepressed. Furthermore on 02.08.2005, Kavitha was subjected toharassment, due to the quarrel arose between A1 and herself. Asalready seen that A1 contacted P.W.1 over phone on the date ofoccurrence and asked P.W.1 to take his daughter Kavitha to his home.Thereafter, the deceased Kavitha contacted her father/P.W.1 overphone and intimated that she was subjected to cruelty and harassmentin the hands of the accused persons for the reason, she did not wantto live. Within ½ hour, A1 intimated to P.W.1 that his daughter diedby hanging herself. It shows that during morning time on 02.08.2005,there was quarrel between the spouses, which forced her to commitsuicide. 14.At this juncture, it is appropriate to consider thedecisions of Apex Court relied upon by the learned counsel for theappellants/accused. (i) 1995 Supp (3) SCC 731 (Mahendra singh and anotherGayatribai v. State of M.P.) para-2 is incorporated as follows:"2. .. .. Abetment has been defined in Section107 IPC to mean that a person abets the doing of athing who firstly instigates any person to do a thing, https://hcservices.ecourts.gov.in/hcservices/ or secondly, engages with one or more other person orpersons in any conspiracy for the doing of that thing,if an act or illegal omission takes place in pursuanceof that conspiracy, and in order to the doing of thatthing, or thirdly, intentionally aids, by any act orillegal omission, the doing of that thing. Neither ofthe ingredients of abetment are attracted on thestatement of the deceased. The conviction of theappellants under Section 306 IPC merely on theallegation of harassment to the deceased is notsustainable. The appellants deserve to be acquitted ofthe charge. "In the above decision, it was held that conviction for abetment ofsuicide merely on the allegation of harassment to the deceased is notsustainable. (ii) 2010 Cri.L.J. 2110 (Gangula Mohan Reddy v. State ofAndhra Pradesh), in which, it was held that mens rea and active actby accused essential to constitute offence. (iii) (2007) 2 MLJ (crl) 1830 (SC) (Kishori Lal v. State ofMadhya Pradesh) in which, it was held that there must be a clearproof of direct or indirect acts of incitement to the commission ofsuicide and merely on the allegation of harassment, conviction interms of Section 306 IPC, is not sustainable. 15.At this juncture, it is appropriate to consider whetherthe prosecution has proved that the accused are abetting Kavitha forcommitting suicide? As per the dictum of the Apex Court, the mens-reais an essential component of abetment and there must be an overt acton the part of the accused in course of the alleged instigation. Itmust be shown that the instigation was prior to and at the point oftime. It was directly or indirectly to give a suggestion to theperson to do a certain act. An abettor must be shown to haveintentionally aided the commissioning of the crime and mere proofthat the crime charged could not have been committed without theinterposition of the alleged abettor, is not enough compliance withthe requirement of Section 107 IPC. The word "instigation" involvestwo things; one is physical act or omission, while the other ismental act. The physical act or omission involved in the"instigation" is "goading or urging forward" another. Such physicalact of goading can be committed either by words or deed, as themeaning of the word suggests. "Goading" can be committed also by anyother wilful conduct, may be by even an adamant silence. The physicalact of "urging forward" or "instigation" involves doing of an act bystrongly advising, persuading to make a person to do something or bypushing or forcing a person in order to make him move more quickly ina forward direction. Thus, both the physical acts in "goading orurging forward" can be committed by doing some act either verbal or https://hcservices.ecourts.gov.in/hcservices/ physical or even by wilful omission or conduct. But here, there is noevidence to show that the appellants/accused are instigated orincited or aided to commit suicide. 16.Now it is appropriate to consider as to whether Ex.D1suicide note is an admissible evidence. Ex.D1 is the suicide note andit contains only two lines. There is no date and time in Ex.D1. Theaccused persons in their written statement stated that before handingover original suicide note they took xerox copy of the same. In myopinion, no reliance can be placed on Ex.D1, since there is noevidence to show that the document was written on the same day and ithas not fastened sanctity for deciding the case. From the evidence ofDoctors, it is clear that the deceased was died due to hanging. Whileperusing M.O.1/video C.D., it shows that the police entered the roomwhere deceased Kavitha committed suicide. It shows that Kavithacommitted suicide by hanging. But the prosecution miserably failed toprove that the accused are guilty of the offence under Section 306IPC, for abetting the deceased to commit suicide. 17.Now this Court has to decide as to whether theappellants/accused are guilty of the offence under Section 498A IPC.It is true, the appellants/accused 1 to 3 are competent persons tospeak about as to why Kavitha committed suicide. Here, P.W.1 deposedthat his son-in-law contacted him over phone that due to quarrelarose between them, he asked him to take Kavitha to his house. In hischief-examination, he stated as follows:@ // // Kjyhk; vjphp vdJ kfis Fr;rpahy; moj;Jk; Jd;g[Wj;jp te;jhh;/2/8/2005 md;W Kjyhk; vjphp vd;id bjhiyngrpapy; bjhlh;g[ bfhz;lhh;mt;tpjk; mth; vd;dplk; bjhlh;g[ bfhz;L fhiy 8/30 kzpastpy;bjhiyngrpapy; tPl;oy; rz;ilahf ,Uf;fpwJ/ eP';fs; clnd te;J kfs;ftpjhit miHj;J bry;Y';fs; vd;whh;/ mjd; gpwF vdJ kfs; ftpjhbjhiyngrpapy; bjhlh;g[ bfhz;L vjphpfs; jd;id jh';f Koahj bfhLikbra;tjhft[k; jdf;F thHnt gpof;ftpy;iy vd;W Twpdhh;/ mt;tpjk; ngrpa1-2 kzp neuk; fHpj;J bjhiyngrpapy; bjhlh;g[ bfhz;L vdJ kfs;ftpjh Jhf;F nghl;L bfhz;L ,we;Jtpl;ljhf vd;dplk; jfty; brhd;dhh;/// // @P.W.15 also corroborated the same by noticing that Kavitha returnedin weeping condition after she contacted over phone. P.W.1 alsostated in his chief-examination that A1 used to beat her daughterusing stick. While considering the evidence of P.W.3, the deceasedKavitha was ill-treated by her in-laws. In the above saidcircumstances, I am of the view, the deceased Kavitha committedsuicide due to the cruelty, which consists of both mental andphysical, caused by the appellants/accused. Hence, I am of the view,the prosecution has proved that A1 to A3 were guilty of the offenceunder Section 498A IPC beyond all reasonable doubt. Therefore, the https://hcservices.ecourts.gov.in/hcservices/ conviction and sentenced passed by the trial Court for the offenceunder Section 306 IPC are hereby set aside and the judgment ofconviction and sentence for the offence under Section 498A IPC ishereby confirmed. 18.In fine,•The Criminal Appeal is partly allowed.•Judgment of conviction and sentence passed by the trialCourt under Section 306 IPC is hereby set aside. •Judgment of conviction and sentence passed by the trialCourt under Section 498A IPC is hereby confirmed. •Bail bond, if executed by the appellants/accused shallstand cancelled.•The fine amount of Rs.5,000/- paid by theappellants/accused, if any, for the offence under Section306 IPC, is ordered to be refunded. •The trial Court is directed to secure the custody of theaccused/appellants to undergo the remaining period ofsentence. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarkjTo1.The Sessions Court, Mahila Court, Coimbatore.2.-do- Through the Prl.District & Sessions Judge, Coimbatore.3.The Judicial Magistrate No.VI, Coimbatore.4.Do- Through the Chief Judl.Magistrate, Coimbatore.5.The Superintendent, Central Prison, Coimbatore.6.The Superintendent, Central Prison, Vellore.7.Inspector of PoliceAll Women Police stationPothanur, Coimbatore District. 8.The Public Prosecutor High Court, Madras.1 cc to Mr. Arasu Ganesan, Advocate, Sr.No.47247Criminal Appeal No.704 of 2008gv(co)pmk.8.8.2012