Babu v. The State by Inspector of Police B4 Police Station, Saravampatti Coimbatore

Bail SlipThe Appellant/Accused namely Babu, S/o. Vincent was directed torelease on bail by the order of this Court dated 30.06.2003 made inCrl.M.P.No.3907/2003 in Crl.A.No.1505/2002.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.11.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.A.No.1505/2002BabuAppellant VsThe State by Inspector of Police B4 Police Station, SaravampattiCoimbatore RespondentPrayer:- This Criminal Appeal is filed against the judgement dated26.4.2002 passed in SC.No.398/2001 by the learned AdditionalSessions Judge (FTC) Coimbatore, convicting and sentencing theappellant for the offence under Section 306 of IPC to undergo 5years Rigorous Imprisonment and to pay a fine of Rs.2000/- indefault to undergo 6 months Simple Imprisonment.For Appellant :Mr.C.Deiva SigamaniFor Respondent :Mr.S.Senthil Murugan, GAORDER This Criminal Appeal is filed against the judgement dated26.4.2002 passed in SC.No.398/2001 by the learned AdditionalSessions Judge (FTC) Coimbatore, convicting and sentencing theappellant for the offence under Section 306 of IPC to undergo 5years Rigorous Imprisonment and to pay a fine of Rs.2000/- indefault to undergo 6 months Simple Imprisonment.2. The case of the Prosecution is as follows:-a. PW.1 Kamalam, mother of the deceased Shanthi isresiding at Vedambal Nagar and PW.2 Kuppusamy is the husband of thedeceased and their marriage was performed 10 years prior to thedate of occurrence and they have two daughters. There weremisunderstanding and quarrels between the deceased and PW.2frequently. Hence, the landlord asked them to vacate the premises.Thereafter, PW.2 and the deceased were residing at the Pw.1'shouse. On 30.12.1999, the Appellant threatened the deceased statingthat the deceased should share the bed with him or otherwise he https://hcservices.ecourts.gov.in/hcservices/ would tell her husband ill of the deceased. On 30.12.1999 atevening hours, PW.2 came to the house of PW.1 to see the deceasedand at that time, the Appellant came there and told that thedeceased was having illicit intimacy with another man, but PW.2disbelieved his words and stayed in the PW.1's house. On the sameday at night hours, PW.2 enquired the deceased about the accusedtelling about her illicit intimacy, but PW.1 told PW.2 that shewould go and enquire with the Appellant about the same.b. On the next day on 31.12.1999 at 7.00 a.m., PW.1 alongwith the deceased went to the house belonged to PW.3 Kuppusamy,husband of PW.4 Mariammal, where the Appellant was residing onrental basis and questioned the Appellant as to why he spoke aboutill of the deceased, to which the Appellant replied that he wouldspeak only like that and told the deceased to go and die and pushedPW.1 down and thereafter, PW.1 along with the deceased went to herhouse and left the deceased in her house and went to market to buyprovisions. When PW.1 came back to her house, she found that thedoor was locked inside and when PW.1 saw through the window, shefound that deceased committed suicide by hanging in the hook of theceiling fan. Immediately, PW.1 went to the house of his anotherson-in-law PW.5 Ravi. Thereafter, PW.1, PW.5 and his wife came tothe house of PW.1 and break upon the door. On receipt ofinformation, PW.2 came there. PW.1 went to the SaravanampattiPolice Station and gave the complaint Ex.P1.c. On receipt of the complaint, PW.8 Sub Inspector ofPolice attached to the said Police Station, on 31.12.1999 at 2.30p.m. registered a case in Cr.No.689/1999 for the offence underSection 306 of IPC and prepared FIR Ex.P8 and sent the same to theconcerned Authorities and placed the file before PW.9, theInspector of Police attached to the said Police Station. d. On receipt of the Ex.P8, PW.9 went to the place ofoccurrence and examined the Appellant, PW.6 Selvam and otherwitnesses and prepared Ex.P2 observation mahazar and rough sketchEx.P9 and seized MO.1 (Series) the rope used by the deceased forcommitting suicide under Ex.P3 mahazar. From 3.00 p.m. to 6.00p.m on the same day, he conducted inquest on the body of thedeceased in the presence of the Panchayatars and prepared Ex.P10inquest report and examined PW.1, Muthusamy, PW.5, Rathinam,Aarusamy, Rajendrian, PW.2 to PW.4, PW.6 and the Appellant andrecorded their statements and sent the body of the deceased forpostmortem with a requisition Ex.P4 to the Hospital Authorities.e. On receipt of Ex.P4, PW.7 Doctor Edwin Joe on 1.1.2000at 10.15 a.m. after receiving chemical analysis report Ex.P6,conducted postmortem and opined in Ex.P7 post mortem certificatethat the deceased died due to hanging. PW.9 also examined PW.7 andrecorded his statement and after completing investigation, on14.7.2000 filed a final report against the Appellant under Section306 of IPC. https://hcservices.ecourts.gov.in/hcservices/

3. The case was taken on file in SC.No.398/2001 on thefile of the learned Additional Sessions Judge (FTC) Coimbatore andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined as many as 9witnesses (PW.1 to PW.9} and also relied on Exs.P1 to P10 and MO.1(Series). On the defence side, one Latha, wife of the Appellant hadbeen examined as DW.1.4. On completion of the evidence on the side of theprosecution, the accused was questioned under Section 313 Cr.PC asto the incriminating circumstances found in the evidence ofprosecution witnesses and the accused denied the same as totallyfalse.5. The court below, after hearing the arguments advanced oneither side and looking into the materials available, found theaccused/appellant guilty and awarded punishments as referred toabove, which is challenged in this Criminal Appeal.6. This court heard the submissions of the learned counselon either side and also perused the material records placed.7. The case of the Prosecution is that the Appellant hadtold the husband of the deceased on the previous day i.e. on30.12.1999 that she had illicit intimacy with another man and PW.2the husband of the deceased had found fault with her stating thatthe Appellant had told him that she was having an affair withanother man. The next day i.e. on 31.12.1999, the deceasedaccompanied by her mother PW.1 had gone to the house of theAppellant and questioned him as to why he had falsely stated to herhusband that she was having an affair with another man to which theAppellant is said to have uttered that he would say so even now andtold her to go an die. The deceased came to the house and unableto bear the shame committed suicide by hanging.8. PW.1 the mother of the deceased has stated that whenthey went and asked the Appellant as to why he has told PW.2 ill ofthe deceased, the Appellant replied that the deceased should sharethe bed with him or otherwise he would continue to speak ill of thedeceased. PW.2, the husband of the deceased had spoken to the factthat the Appellant told him regarding the illicit intimacy of thedeceased with another man, but he did not believe it. However, hehad stated that he chided his wife for getting such a bad name fromother persons.9. PW.3 and PW.4 are the husband and wife in whose housethe Appellant was residing with his family at the time ofoccurrence. They have stated that the deceased and PW.1 came tothe house of the Appellant and shouted at him for speaking ill ofthe deceased. They have stated that the Appellant told them thathe would say so and asked the deceased to do whatever she wanted todo. https://hcservices.ecourts.gov.in/hcservices/

10. Mr.C.Deiva Sigamani, the learned counsel for theAppellant submitted by making a reference to the testimony of PW.1and PW.2 that the marriage life of the deceased with PW.2 was veryquarrelsome and they were asked to vacate the house in view oftheir behaviour and that apart, PW.2 used to drink daily which ledto the dejection and mortification of the wife resulting into hercommitting suicide. He would submit that the evidence disclosedthat PW.2 was scolding the deceased on the previous day which couldbe the main cause for the commission of suicide by the deceased. Aperusal of evidence of PW.1 shows that PW.2 used to drink and wasnot going to work properly. She has also stated that the maritallife of the deceased with PW.2 was quarrelsome and they had tovacate the house and stay in PW.1's house with PW.2 and children.11. Mr.S.Senthil Murugan, the learned Government Advocate(Criminal Side) supported the judgement of the Trial Court andsubmitted that the evidence of PW.1 and PW.2 proved that theutterances made by the Appellant had driven the deceased to commitsuicide and that there is reasonable proximity between the incidentand the commission of suicide.12. It is no doubt true that there is evidence to show thequarrelsome marital life of the deceased and PW.2, but there isnothing on record to show that the deceased has committed suicideaggrieved by the conduct of the husband in chiding her the previousday on being told by the Appellant that she was having an affairwith another man. In fact, she had gone to the house of theAppellant the next day and had questioned as to why he has utteredso to her husband. Therefore, we cannot expect anything adverseagainst her husband. PW.1 the mother of the deceased has notstated anything about the possible instigation or actualinstigation by PW.2 and there is nothing to suggest any suchinstigation on the part of PW.2.13. The learned counsel for the Appellant would next submitthat even if the entire evidence of the Prosecution is taken to betrue and reliable, in the absence of mens rea, in the casual mannerif the Appellant had uttered so many words against the deceased, itwill not amount to abetment. He would submit that the words utteredin a quarrel or on the spur of the moment such as "go and die"cannot be taken to be uttered with mens rea and therefore, theAppellant even if assumed to have so said cannot be convicted underSection 306 of IPC. The learned counsel would urge that there wasno motive or intention on the Appellant that the deceased shoulddie committing suicide while uttering the said words.14. The evidence of PW.1 coupled with PW.3 and PW.4 wouldshow that the Appellant had uttered certain words against thedeceased, when she came to his house and scolded him for tellingher husband ill of her. We have to now see as to whether thoseutterances allegedly made by the Appellant would by itselfconstitute the ingredients of instigation. https://hcservices.ecourts.gov.in/hcservices/

15. The word "instigate" denotes incitement or urging todo some drastic or inadvisable action to stimulate or incite. Thepresence of mens rea, therefore, is the necessary concomitant ofinstigation. It is a common knowledge that the words uttered in aquarrel or in a spur of moment cannot be taken to be uttered withmens rea. Stray domestic quarrels, perfunctory abuses by otherperson, crude and uncultural behaviour of men being mundanematters of normal occurrence, it will not go to form and constituteabetment unless those acts of conduct singly or accumulatively arefound to be of such formidable and compelling nature as may lead tothe commission of suicide. It is the deceased and her mother whohad gone to the house of the Appellant and quarreled with him forhaving spoken ill of her. Thereafter, her mother had pacified herand brought her back to her house. Therefore, it cannot be saidthat the utterances made by the Appellant during the said quarrelin a fit of anger be said that the same was made with any intentionto incite the commission of suicide. There cannot be any intentionon his part that she should commit suicide.16. In the case of Sanju @ Sanjay Singh Sengar Vs. State ofMP [AIR-2002-SC-1998], it is held by the Honourable Supreme Courtthat the accused telling the deceased "to go and die" would byitself not constitute the ingredients of instigation and presenceof mens rea is necessary concomitant of instigation.17. In yet another decision of the Honourable Supreme Courtrendered in the case of Ramesh Kumar Vs. State of Chattisgarh[2001-9-SCC-618], the Honourable Supreme Court while consideringthe charge framed and convicting for the offence under Section 306of IPC on the basis of dying declaration recorded by the ExecutiveMagistrate, in which she has stated that previously there had beenquarrel between the deceased and on the day of occurrence too, shehad a quarrel with her husband, who had said that she could gowherever she wanted to go and that thereafter, she had pouredkerosene and had set file, acquitting the accused, it said thus:-"A word uttered in a fit of anger or emotion withoutintending the consequences to actually follow cannot besaid to be instigation. If it transpires to the courtthat a victim committing suicide was hypersensitive toordinary petulance, discord and difference in domesticlife quite common to the society to which the victimbelonged and such petulance discord and difference werenot expected to induce a similarly circumstancedindividual in a given society to commit suicide, theconscience of the court should not be satisfied forbasing a finding that the accused charged for abettingthe offence of suicide should be found guilty."18. In the case of State of Gujarat Vs. Sunil KumarKanaiyalal Jain [1997-Crl.LJ-2014], a Division Bench of the GujaratHigh Court, considering the scope of section 306 of IPC,elaborately dealt with abetment, realizing the responsibility ofthe court also has observed that the words "better die today thantomorrow" if had been uttered cannot be said to be the abetment in https://hcservices.ecourts.gov.in/hcservices/ the eye of law since the words might have been uttered to outburstof one's own fatuity or anger or consternation without anyintention or knowledge or might be the rude or insulting not withdesire to instigate the person to commit suicide which principlecould be extended to the case on hand.19. By applying the law settled by the Honourable SupremeCourt to the facts of the case on hand, as well as analysing theevidence available on record and taking into consideration theoverall circumstances of the case, I am of the considered view thatno offence has been made out under Section 306 of IPC. But,unfortunately the court below convicted and sentenced the Appellantas stated supra, which requires to be set aside.20. In the result, this Criminal Appeal is allowed. Theconviction and sentence imposed on the appellant by the court belowin SC.No.398/2001 is set aside and the Appellant is acquitted ofthe charges levelled against him. It is seen from the records thatthe Appellant had been enlarged on bail by this court. The bailbond if any executed by the appellant shall stand terminated andthe fine amount if any paid is ordered to be refunded to him.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSrcm To:1. The Additional Sessions Judge-cum-Fast Track Court, Coimbatore.2. The Principal Sessions Judge,Coimbatore.3. The Judicial Magistrate III,Coimbatore.4. The Chief Judicial Magistrate,Coimbatore.5. The Superintendent,Central Prison, Coimbatore.6. The Director General of Police,Mylapore, Chennai - 4. https://hcservices.ecourts.gov.in/hcservices/

7. The District Collector,Coimbatore.8. The Public Prosecutor,High Court, Madras.1 cc To Mr.C.Deivasigamani, Advocate, SR.64460.Crl.A.No.1505/2002 RB(CO)RVL 10.12.2009