Madras High Court
Rajendran vs State Thro' The Inspector Of on 29 February, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/02/2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.(MD)No.420 of 2011 and M.P(MD)No.1 of 2011 1.Rajendran 2.Ramaraj 3.Muthusamy 4.Karupayee 5.Palaniammal 6.Raja ... Petitioners/Accused Vs. State thro' The Inspector of Police, Thirumangalam Taluk Police Station, Madurai. ... Respondent/Complainant Criminal Revision Case is filed under Section 397 and 401 Cr.P.C praying to set aside the dismissal order dated 10.05.2011 passed by the Additional District & Sessions Judge, Mahila Court, in Crl.M.P.No.44 of 2011 in S.C.No.430 of 2010. !For Petitioners ... Mr.N.Ananthapadmanaban ^For Respondent ... Mrs.S.Prabha Government Advocate (Criminal side) :ORDER
Heard both sides. Records were also perused.
2.The accused 1 to 6, who have been committed for trial to the Sessions Court alleging commission of an offence punishable under section 306 IPC, are the petitioners in the criminal revision case. The petitioners herein are the relatives of the husband of the deceased Pandeeswarai. Pandeeswari committed suicide after administering poison and causing death of her minor children Nithya @ Kanagalakshmi and Jayashree. The death was reported and a case was registered on the file of Thirumangalam Taluk Police station in crime No.209 of 2009, initially under section 174 of Cr.P.C. After conducting autopsy and preliminary investigation, the case was altered into one for an offence under section 306 IPC and the petitioners herein were arrayed as accused No.1 to 6.
3.According to the prosecution case, the deceased Pandeeswari, in the absence of her husband Kathiresan, demanded partition of their share from the joint family and the same was declined by the petitioners. Besides declining the demand for partition, the petitioners also insulted the deceased Pandeeswari with defamatory words and she was also intimidated as a result of which, Pandeeswari administered poison to her daughters Jayashree and Nithya @ Kanagalakshmi which led to their death, besides herself consuming poison. The Investigating Officer, after completing investigation, submitted a final report alleging commission of an offence punishable under section 306 IPC r/w section 34 IPC by all the petitioners herein. The same was taken on file by the learned Judicial Magistrate, Thirumangalam as PRC No.25 of 2010 and after furnishing the accused (petitioners herein) with copies of the documents sought to be relied on by the prosecution, the case was committed to the Sessions Court for trial. The same was taken on file as S.C.No.430 of 2010 and was made over to the Additional District and Sessions Judge, Mahila Court, Madurai for disposal according to law.
4.On their appearance before the said trial court, the petitioners preferred a petition under section 227 Cr.P.C praying for an order of discharge stating that there was no sufficient material to proceed against them. The said petition was taken on file as Crl.M.P.No.44 of 2011 in SC No.430 of 2010 and the learned trial Judge, after enquiry, dismissed the said petition by the impugned order dated 10.05.2011. The correctness and legality of the said order is questioned in this criminal revision case on various grounds set out in the grounds of revision.
5.Notice before admission was issued to the respondent and the respondent is now represented by the learned Government Advocate (Criminal side). Records have also been called for and they are available for reference.
6.The arguments advanced by Mr.N.Ananthapadmanaban, learned counsel for the petitioners and by Mrs.S.Prabha, learned Government Advocate(criminal side) representing the respondent are heard and the materials available on record are taken into consideration.
7.The first and foremost contention of the learned counsel for the petitioners is that though there is no sufficient material to show that the petitioners/accused used any abusive language as against any one of the deceased, even if it is assumed that such abusive language was used by the petitioners/accused, the same would not amount to abetment of suicide. The next contention of the learned counsel for the petitioners is that if it is assumed that there was any act, which can be construed as an abetment of suicide of Pandeeswari, there is total absence of material to attract the offence of abetment of suicide so far as the death of the children of Pandeeswari. Learned counsel for the petitioners would contend that the case of the prosecution would attract the definition of murder found in section 300 IPC as the death of the children of Pandeeswari was caused by the said Pandeeswari, even according to the prosecution case, with the intention of causing their death and that if at all, the petitioners could be prosecuted for any offence regarding the death of Jayashree and Nithya @ Kanagalakshmi, the children of Pandeeswari, it could be only abetment of murder punishable under section 302 r/w 109 IPC, if at all there is any material to show that such an abetment had been made by any one of the petitioners herein. Learned counsel for the petitioners also pointed out the fact that the statements of the witnesses sought to be examined on the side of the prosecution attracting even section 294(b) IPC are vague and they shall not be enough to make the petitioners stand for trial for the said offence also.
8.Per contra, learned Government Advocate (Criminal side) would contend that because of the family feud and the ill-treatment of deceased Pandeeswari, she was driven to end her life, besides killing her own children by administering poison and therefore, the petitioners should be asked to face the trial for an offence under section 306 IPC at least in respect of the death of Pandeeswari.
9.Let us now consider the sustainability of the contention raised on both sides. Section 306 IPC makes abetment of suicide a punishable offence. The short provision is reproduced hereunder:-
"306.Abetment to suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
A reading of the said section will show that the provision simply makes the abetment of suicide punishable and prescribes the punishment for such an offence. It does not explain abetment of suicide. Section 305 IPC deals with abetment of suicide of a child or insane person, which is not attracted to the case on hand. Therefore, we have to refer the section 107 to ascertain the meaning of abetment. Admittedly, the death of Pandeeswari is a suicide. Now we have to see whether there is sufficient material to presume that the petitioners have abetted the suicide of Pandeeswari. Section 107 IPC reads as follows:-
"107.Abetment of a thing.- A person abets the doing of a thing, who-
First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or 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.
Explanation 1.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
10.None of the ingredients of abetment is proved to exist in the case of hand. A person is said to abet doing of a thing, if he instigates any person to do that thing or engages in any conspiracy for doing of that thing, or intentionally aids by an act of commission or omission of doing of that thing. In this case, there is no material to show that the acts on the part of the petitioners fall within the second or third definitions of abetment found in section 107 IPC. At best, it can be claimed to have fallen under the first definition, namely instigation of any person to do a thing. According to the prosecution, the petitioners, by their act of refusing to agree for a partition of the family property in which her husband did have a share and by abusing her with unparliamentary words, had instigated Pandeeswari to commit suicide.
11.Learned counsel for the petitioners has rightly contended that refusal by the other family members to effect partition of a joint property can never be construed as an instigation to commit suicide. If at all, they had by words spoken directed that instead of seeking partition, she could go and commit suicide, we can say that such an act may amount to instigation of suicide. Besides the act of refusal to agree for partition being insufficient to constitute an act instigating Pandeeswari to commit suicide, the act of refusal on the part of the petitioners can be even justified as Pandeeswari was not the person having any share in the property regarding which partition was demanded by her and the demand was also made in the absence of her husband, who alone was having a share in the property.
12.It is not the case of the prosecution that the deceased Pandeeswari was known to be in such a critical situation that the refusal to agree for partition would definitely or more probably drive her to commit suicide, to say that the refusal was made with the intention of driving her to commit suicide. After perusing the entire records produced on the side of the prosecution as materials to be relied on by the prosecution in support of the case for the proof of the charge under section 306 IPC, this court is of the considered view that not even a prima facie case has been made out to presume that an offence under section 306 r/w 34 IPC was committed by the petitioners herein. The Investigating Agency seems to have been carried away by the fact there was death of a woman and two of her children. The learned trial Judge also was carried away by the said fact and without considering the scope of the penal provision and without properly considering the fact that whether there is sufficient material to frame a charge for an offence under section 306 r/w 34 IPC against the petitioners herein, has chosen to hold that prima facie case for such an offence had been made out. This court does have no hesitation in coming to the conclusion that the materials placed by the prosecution are not sufficient to make out of a prima facie case for raising a presumption that the petitioners have committed the offence under section 306 IPC r/w 34 IPC, which is the necessary condition for framing a charge under the said section. The above said discussions were made to show that even regarding the death of Pandeeswari, section 306 IPC is not attracted against the petitioners 1 to 6 herein.
13.So far as the death of Jayashree and Nithya @ Kanagalakshmi is concerned, as rightly pointed out by the learned counsel for the petitioners, by no stretch of imagination it can be construed as a suicide or abetment of suicide. Even as per the prosecution case, it is a clear case of murder by the mother, namely Pandeeswari, who is no more to be prosecuted and the said charge against her stands abated. Under such circumstances, we have to see whether there is material to presume that the petitioners have abetted the commission of murder by deceased Pandeeswari.
14.At the out set, this court points out the fact that it is not the case of the prosecution that the petitioners, by either instigating or engaging in a conspiracy or aiding Pandeeswari abetted the murder of her children. There is no material at all to show that there was abetment on the part of the petitioners of the offence of murder committed by the deceased Pandeeswari. Therefore, there is no scope to hold that there is sufficient material to proceed against the petitioners/accused for an offence under section 302 r/w 109 IPC also. Then, we have to see whether the materials placed by the prosecution make out sufficient ground for proceeding against the petitioners/accused for any offence.
15.Learned Government Advocate (criminal side) would contend that there are materials in the form of statements of the witnesses to the effect that, besides refusing to agree for partition, the petitioners abused the deceased Pandeeswari with unparliamentary words and filthy language. Of course, there is reference in the statements of the witnesses to the use of unparliamentary words. Whether the same will amount to an offence under section 294(b) IPC is to be considered without trying to evaluate the evidence sought to be adduced. But at the same time, this court should also see whether the allegations are specific or vague. If it is vague, then the same can be taken into consideration in deciding a petition for discharge. As rightly, pointed out by the learned counsel for the petitioners, all the witnesses, in their statements recording under 161 Cr.P.C, simply referred to the use of unparliamentary words against Pandeeswari without specifically stating what was the abusive language used by them. It shall be helpful to extract that part of the statement of the proposed witnesses in the vernacular:-
"ghz;O!;thpia Bkw;go egh;fs; vy;ByhUk; Brh;e;J kdk; btWf;Fk;go jfhj thh;j;ijfshy; jpl;odhh;fs;."
Identical statements have been found in 161 Statements of all the witnesses. None of the witnesses has spoken about the actual words used by the petitioners/accused. The said averment is no doubt vague and based on such vague allegation one shall not be asked to stand for trial of an offence. In addition, section 294(b) IPC shall not be attracted when such abusive language is used within four walls and to constitute the offence, it should have been done in or near any public place. For better appreciation section 294 IPC, is extracted hereunder:-
"294.Obscene acts and songs.-Whoever, to the annoyance of others,-
(a)does not obscene act in any public place, or
(b)sings, recites or utters any obscene songs, ballad or words, in or near any public place.
shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both]"
16.It is not the case of the prosecution that even though the abusive language was used within the house it amounts to an annoyance of the public, which alone will attract section 294. At the cost of repeatition, this court points out the fact that unless the exact abusive words are referred to by the prosecution in the charge sheet or in the other records sought to be relied on by the prosecution, it shall be unjustifiable and un-ethical to make the petitioners/accused to face the trial for an offence punishable under section 294(b) also.
17.For all the reasons stated above, this court comes to the conclusion that the order of the learned trial Judge, namely Additional Sessions Judge, Mahila Court, Madurai is defective, infirm and the same is liable to be set aside.
18.In the result, the criminal revision case is allowed and the impugned order dated 10.05.2011 made in Crl.M.P.No.44 of 2011 in S.C.No.430 of 2011 on the file of the learned Additional District and Sessions Judge, Mahila Court, Madurai is set aside. Cr.M.P.No.44 of 2011 shall stand allowed with the result, the petitioners 1 to 6/accused are discharged from S.C.No.430 of 2011 on the file of the learned Additional Sessions Judge, Mahila Court, Madurai. Consequently, connected Miscellaneous Petition is closed.
er To, The Additional District and Sessions Judge, Mahila Court, Madurai.