Suresh v. State rep. By Inspector of Police, Annupparpalayam Police Station, Coimbatore District

BAIL SLIPThe Appellant / Accused viz., Suresh was directed to bereleased on bail as per the order of this Court dated. 22.10.2002in Crl.M.P. No.10666 of 2002 in Crl.A.1433 of 2002.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 29.10.2009CORAMTHE HONOURABLE MRS. JUSTICE ARUNA JAGADEESANCrl.A.No.1433 of 2002SureshAppellantVs.State rep. By Inspector of Police,Annupparpalayam Police Station,Coimbatore DistrictRespondentPrayer:-This Criminal Appeal is filed against the judgement dated4.9.2002 passed in S.C. No.78 of 2002, by the learned AdditionalDistrict and Sessions Judge (Fast Track Court No.5), Coimbatore atTiruppur convicting and sentencing the Appellant for the offenceunder Section 306 of IPC to undergo Rigorous Imprisonment for eightyears and to pay a fine of Rs.10,000/- and for the offence underSection 498A of IPC to undergo Rigorous Imprisonment for threeyears and to pay fine of Rs.5000/- and ordering the both thesentences to run concurrently.For Appellant:Mr. N. Duraisamy, (Amicus curaie)For respondent:Mr.Hasan Mohammed Jinnah, APP JUDGMENTEarlier when the matter was taken up for final disposal,the learned counsel on record appearing for the appellantMr.N.Ishtiaq Ahmed filed a memo that he has sent a letter that hasbeen returned with an endorsement as no such addressee andreported no instructions. Therefore, this Court appointedMr.N.Doraisamy as the amicus curiae and adjourned the matter toenable him to prepare the case and the matter is taken up todayfor 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 Districtand Sessions Judge, (Fast Track Court No.5), Coimbatore at Tiruppurfor an offence punishable under Section 306 IPC to undergo eightyears rigorous imprisonment and to pay a fine of Rs.10,000/- indefault to undergo two years rigorous imprisonment and under https://hcservices.ecourts.gov.in/hcservices/ Section 498-A IPC to undergo three years rigorous imprisonment andto pay a fine of Rs.5,000/- in default to undergo six monthsrigorous imprisonment. The learned Additional Sessions Judge hasdirected both the sentences to run concurrently. 3. The brief facts of the prosecution case are asfollows: (a) PW7 Mayangaathamaal has got three sons and threedaughters. Her youngest daughter is the deceased Pangajavalli andshe was working in a Baniyan Company in Anupapaalayam. There waslove affair between the deceased and the accused and they gotmarried without the knowledge and consent of both the parents. Theywere living separately in the house owned by PW6 Thilagavathy. (b) According to the prosecution, PW7 the mother of thedeceased alone used to visit her daughter and the brothers andsisters of the deceased never visited her, as she married againstthe will of her parents and relatives. The deceased gave birth to amale child, but it died soon after delivery. The deceased wassuffering from asthma complaint. The accused never used to go towork properly, which resulted in frequent quarrel between thedeceased and the accused. The deceased had disclosed the same toher mother PW7 whenever she visited her house. PW2 and PW3, thebrothers of the deceased and PW4 the sister of the deceased werealso not in talking terms with the deceased, as they were againsther marrying his lover. But however their mother had informed themthat the accused did not go to his work regularly.(c) On the date of the incident i.e. on 31.01.2001, PW7had visited her daughter and handed over the milk packet to her. Atthat time, she saw that the deceased was quarreling with herhusband, as he was not going to his work. But, when she enteredinto the house, they stopped their feud and PW7 handed over themilk pocket and returned to her house. After half an hour, she sawa crowd in front of her daughter's house and learnt from them thather daughter had poured kerosene and set fire to herself.Immediately, she rushed to her daughter's house and enquired her asto why she had done so. It appears that the deceased had told herthat she cannot bear the harassment from her husband and otherrelatives were not looking after her and out of that frustrationshe had set fire to herself. (d) PW6, the house owner of the deceased had gone to theGovernment Hospital to give treatment to her son for snake bite andreturned home. She came to know that the deceased had set fire toherself. She had seen the accused and deceased quarreling with eachother. PW5, another tenant and neighbour of the deceased hadreturned home just then after seeing her mother and saw smokeemanating from the house of the deceased and the accused wasstanding nearby the deceased and the deceased was in flames. Shehad immediately gone to PW7's house and informed her. (e) On getting information, Kumaralingam PW1, brother ofthe deceased also came there and took her in an Auto to theGovernment 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 https://hcservices.ecourts.gov.in/hcservices/ 171 Cr.P.C. and prepared Ex.P6 FIR. Since the deceased had diedwithin seven years of the marriage, he had forwarded the FIR to theDeputy Superintendent of Police, Tiruppur and also to RDO forfurther 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 thedeceased in the female ward. He had put questions to the deceasedto satisfy himself, as to whether the deceased was in a fit stateof mind to give dying declaration. He had also enquired Dr.Sarathyregarding the fit state of mind of the deceased. He had commencedto record the dying declaration at 3.30 p.m. and he completed thesame at 3.40 p.m. 5. In the dying declaration Ex.P5 the deceased had statedthat she had gone to her work at 8.00 a.m. and she had pouredkerosene herself. She has also stated that no one is responsiblefor the suicide committed by her. On 01.01.2001 the RDO Tiruppurconducted enquiry under Section 174 Cr.P.C. and recorded statementsfrom the witnesses, he conducted inquest on the body of thedeceased and gave a report Ex.P7 that there was no dowry harassmentin relation to the death of the deceased. 6. The Deputy Superintendent of Police, Tiruppur PW13received the FIR, took up the investigation, visited the place ofoccurrence and prepared exhibit P2 observation mahazar and exhibitP8 rough plan in the presence of the witnesses. He had recoveredMO1 match box, MO2 two match sticks and MO3 one plastic stick fromthe place of occurrence under exhibit P3 mahazar. He had recordedthe statements of PW1 to PW7. Dr.Sarathy attached to the GovernmentHospital, Thiruppur conducted post mortem on the body of thedeceased on 02.07.2001 at 11.00 a.m. after getting the requisitionfrom the Deputy Superintendent of Police. The postmortemcertificate contains the following observations regarding theinjuries 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 mortispresent in all 4 limbs. Post-Mortem commenced at 11 A.M.Appearances found at the post mortem: Body of a femalelies on its back, symmetrical. Eye closed. Mouthclosed. Tongue kept inside. Burns involving both upperand lower limbs, front of chest back, upper half ofabdomen except lower half of the abdomen and genitalregion. 3rd degree burns. Internal Examination:No fracture of ribs. Heart: 250 gms. Pale, Lungs left https://hcservices.ecourts.gov.in/hcservices/ 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 toextensive burns about 30-36 hrs. prior to Post-Mortem."7. The postmortem report is Ex.P4. He had altered the FIRinto an offence under Section 306 IPC and sent the altered reportexhibit P9 to the Court. He arrested the accused near Tiruppur busstand and recorded the confession statement voluntarily given byhim. Further investigation was conducted by PW14 Deputy Inspectorof Police and after completing the investigation, he laid chargesheet against the accused for the offence punishable under Sections306 and 498-A of IPC. 8. The incriminating materials appearing against theaccused was put to the accused to which he denied the same inentirety. The Trial Court in analysing the evidence convicted theaccused under Sections 306 and 498 of IPC and sentenced him toundergo the sentences as stated above.9. Mr.N.Doraisamy, the amicus curiae counsel took methrough the entire evidence of Pws.1 to 7 wherein there are severalcontradictions in the evidence, and the other materials on recordand also in the dying declaration recorded by the learnedmagistrate, wherein the deceased has stated that she set fire toherself, as she was unable to bear the stomach ache and assertedthat no one was responsible for her suicide. He would submit thatthe prosecution has not established its case beyond reasonabledoubt and hence, the accused is entitled to be acquitted. 10. Though the brothers Pws.1 to 3, Sister PW.4 andmother PW.7 had been examined, none of them except PW.7 had deposedthat the cruelty meted out to the deceased by her husband was thecause for her suicide. In fact, the brothers and sisters nevervisited their sister after her marriage with the accused, as shemarried his lover without the consent on both sides. PW.1 wouldstate that he has not gone to his sister's house after her marriageand only their mother used to go there and he came to know throughhis mother that the accused never go to work regularly and so shewas not happy with her matrimonial life after sometime. But, in thecross examination, he admitted that his sister was suffering fromsevere Asthma which was unbearable and that was the reason for herto commit suicide. This version is spoken to by the other brothersand sisters also. Pws.1 to 7 categorically deposed before the Courtthat there was no ill treatment or cruelty inflicted by the accuseddemanding any downy or any other demand. In fact, PW1 would statethat the accused also sustained burn injuries, when he tried tosave the deceased from burning.11. The only evidence available on record would be thatof the mother of the deceased, who would depose that her daughter https://hcservices.ecourts.gov.in/hcservices/ told her that the accused was not going to his work regularly andwhen the deceased questioned him, he asked her to get money fromher parental house and told her to die, as she was not of any useto him. PW.7 has come forward with this version only before theCourt and she has not stated so to the Revenue Divisional Officer,when she was enquired. But, in the cross she admitted that sinceher daughter had married the accused without their consent, shenever went to her daughter's house and she also admitted that herdaughter was suffering from severe asthma. Before the RDO PW7 has given a statement to the effect that afterthe love marriage of her daughter with the accused, herself andother members of her family had no connection with her and theycame to know that her daughter committed suicide on 31.01.2001 andfurther there was no dowry harassment in her death. The independentwitnesses PW5 and PW6 who are the tenant and the landlord of thehouse where the deceased lived with her husband have stated thatthe couple used to quarrel frequently but in cross they alsoasserted that the deceased had asthma trouble and she suffering dueits severity. 12. Though there is some evidence to show that thedeceased and the accused were quarrelsome, but it would not in anyway lead to any inference that the accused treated her cruelty orharassed her in such a manner driving her to commit suicide.13. Section 107 of IPC defines 'abetment' to mean that aperson abets the doing of a thing if he firstly, instigates anyperson to do that thing or secondly engages with one or morepersons in any conspiracy for the doing of that thing, if an act orillegal omission takes place in pursuance of that conspiracy and inorder to the doing of that thing; or thirdly intentionally aids byany act or illegal omission, the doing of that thing.14. Before adverting further, at this stage, it isrelevant to refer to a few decisions of the Honourable SupremeCourt for the purpose of disposal of this case. 15. In the case of Sivay Prahaladdas -vs- State of MadhyaPradesh, [1995-SCC-Crl-943], the accused was charged for an offenceunder Section 306 of IPC on the ground that the appellant duringthe quarrel is said to have remarked to the deceased "to go anddie'. The Honourable Supreme Court was of the view that mere wordsuttered by the accused to the deceased to "go and die" were noteven prima facie enough to instigate to commit suicide. 16. In the case of Mahendra Singh -vs- State of MadhyaPradesh, [1995-SCC-Crl-1157], the accused was charged for anoffence under Section 306 of IPC basically upon the dyingdeclaration of the deceased which reads as under:"My mother-in-law and husband and sister-in-lawharassed me. They beat me and abused me. My husbandMahendra wants to marry a second time. He has illicitconnections with my sister-in-law. Because of thesereasons and being harassed I want to die burning." https://hcservices.ecourts.gov.in/hcservices/ The Honourable Supreme Court, considering the definition of'abetment' under Section 107 of IPC, found that the charge ofconviction of the accused for an offence under Section 306 of IPCis not sustainable, merely on the allegation of harassment of thedeceased. The Honourable Supreme Court further held that neither ofthe ingredients of abetment are attracted on the statement of thedeceased. 17. In yet another case reported in Ramesh -vs- State ofChattisgarh [2001-9-SCC-618], the Honourable Supreme Court wasconsidering the charge framed and the conviction for anoffence under Section 306 of IPC on the basis of dying declarationrecorded by an Executive Magistrate, in which she had stated thatpreviously there had been quarrel between the deceased and herhusband and on the day of occurrence, she had a quarrel with herhusband, who had said that she could go wherever she wanted to goand that thereafter she had poured kerosene on herself and had setherself on fire. Acquitting the accused the HSC said:"A word uttered in a fit of anger or emotionwithout indicating the consequences to actuallyfollow cannot be said to be instigation. If ittranspires to the Court that the victimcommitting suicide was hypersensitive toordinary petulance, discord and difference indomestic life quite common to the society towhich the victim belonged and such similarlycircumstanced individual in a given society tocommit suicide, the conscience of the Courtshould not be satisfied for basing a findingthat the accused charged for abetting theoffence of suicide should be found guilty."18. Reverting to the facts of this case, the Trial Courterroneously accepted the Prosecution's story that the suicide bythe deceased is the direct result of the quarrelsome behaviour ofthe accused. On the basis of mere not going to work by the accusedand when the deceased questioned him he scolded her, the accusedcannot be held guilty of abetting the crime of suicide. It can onlybe said that the deceased must be deemed to have dropped down as asensitive girl not able to withstand normal jolts of life. Theconduct of the accused cannot be held to be willful and deliberateand there is no positive and connive evidence of cruelty and ill-treatment by the act.19. Taking the totality of materials and evidence onrecord and facts and circumstances of the case into consideration,it will lead to irresistible conclusion that the accused was notresponsible for her death and the conviction and sentence passed bythe learned Judge are liable to set aside. 20. In the result, the Criminal Appeal is allowed and theconviction and sentence passed in SC No.78 of 2002 dated 04.09.2002are set aside and the Appellant is acquitted of the chargeslevelled against him. The bail bond if any executed by the https://hcservices.ecourts.gov.in/hcservices/ appellant shall stand terminated and the fine amount if any paid isordered to be refunded to him.21. Before parting with this case, this Court places onrecord its appreciation for the valuable assistance rendered byMr.N.Doraisamy, Amicus Curiae. The State Legal Service Authority isdirected to pay a sum of Rs.2,500/- (Rupees Two thousand and fivehundred only) towards his fee. Vga/Srcm Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Addl. District Sessions Judge, Fast Track Court No.5, Coimbatore.2. The Principal Session Judge, Coimbatore.3. The Judicial Magistrate No.II, Tiruppur4. -do-Through The Chief Judicial Magistrate,Coimbatore.5. The superintendent, Central Prison, Coimbatore.6. TheInspector of Police, Annupparpalayam Police Station, Coimbatore District7. The Public Prosecutor, High Court, Madras8. The State Legal Service Authority,High Court, MadrasCopy to The Section Oficer, Crl.Section, High Court, Madras1 cc To Mr.N.Doraisamy,Advocate, SR.57478 Crl.A.No.1433/2002PA (CO)SS (20.11.2009)