Madras High Court
Mahi @ Mahendiren @ Mahender vs / on 10 June, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A.No.411 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 06.06.2022 Pronounced on : 10.06.2022
Coram::
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Criminal Appeal No.411 of 2014
1. Mahi @ Mahendiren @ Mahender, M/A 23,
S/o.Mohan.
2. Sri Karthi @ Sri Karthikeyan, M/A 21,
S/o.Kamaraj.
3. Subash, M/A 21,
S/o.Subramanian.
4. Ashok Kumar, M/A 22,
S/o.Amirthalingam.
5. Diwakar, M/A 21,
S/o.Ravi. ... Appellants/Accused
/versus/
1. The State Rep. by its
The Inspector of Police,
Sembanarkoil Police Station,
Nagappattinam.
(Crime No.476 of 2012) ... Respondent/Complainant
Prayer: Criminal Appeal is filed under Section 372 (2) of Cr.P.C., to set aside the
Conviction and Sentence imposed upon the appellants by the Hon'ble Fast Track
Mahila Court, Nagapattinam, dated 23.07.2014 in S.C.No.73 of 2013.
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https://www.mhc.tn.gov.in/judis
Crl.A.No.411 of 2014
For 1st Appellant : Mr.M.P.Saravanan
For 2nd to 5th Appellants : Mr.G.Saravanabhavan
For Respondent : Mr.S.Udaya Kumar,
Government Advocate (Crl.Side)
***
JUDGMENT
On 31/07/2012 at about 18.15 hrs, Rekha daughter of Karunanithi, a 17 years old lass committed suicide by hanging at her house. The matter was reported to the respondent police by her father on the next day at about 08.00 hrs. Based on his information, the case was registered in Crime No.476/2012 under Section 176 Cr.P.C and investigation was taken up. The investigation revealed that, on the date of incident the victim girl was subjected to harassment by the appellants herein. The appellants 1 to 5 were arrested and charged for offences under Sections 147, 354, 306 of I.P.C and section 4(b) of Tamil Nadu Prohibition of Harassment of Women Act. The charges were denied by the accused/appellants.
2. To prove the charges, the prosecution has examined 13 witnesses and marked 14 documents as exhibits. The trial court found all the 5 accused guilty and were sentenced as below:
____________ Page No.2/14 https://www.mhc.tn.gov.in/judis Crl.A.No.411 of 2014 Rank of the Conviction under Section Sentence imposed by the Fast Track Mahila accused Court, Nagapattinam Under Section 147 IPC To pay a fine of Rs.250/- each in default 3 months S.I. Under Section 354 IPC To undergo 6 months R.I and also to pay a fine of Rs.500/- each in default 6 months A1 to A5 S.I Under Section 306 IPC To undergo 5 years R.I and also to pay a fine of Rs.1,000/- each in default to undergo 1 year S.I. Under Section 4(b) of Tamil To undergo 5 years R.I and also to pay a Nadu Prohibition of fine of Rs.50,000/- each in default 1 year Harassment of Women Act. S.I.
3. Challenging the conviction and the sentence, the present appeal is filed.
4. The case of the prosecution as per the final report is that, the accused 1 to 5 are 2012-13 batch students of AVC Polytechnic College, pursuing their Diploma Courses. They are close friends. During the said period, the deceased Rekha was pursuing 2nd year EEE diploma course in the same college. A year prior to the incident, Rekha was in friendly term moving closely with the first accused Mahi @ Mahendiran @ Mahendar. Thereafter, she started disassociated from him and friendship with another boy of the same college. Therefore, Mahi and his friends (A-1 to A-5) decided to disgrace and harass Rekha for shifting her ____________ Page No.3/14 https://www.mhc.tn.gov.in/judis Crl.A.No.411 of 2014 friendship. On 31/07/2012, at about 5.00 p.m., A-1 to A-5 came in two wheelers and gathered together unlawfully near the college and when Rekha came out of the college, at the instigation of A-1, the other accused abused Rekha for changing lovers each day. The first accused threatened her saying, he should not see her alive the next day. Also, the accused uttered vulgar comments offending her modesty, which forced her to commit suicide by hanging on returning alone.
5. The father of the victim who gave the complaint (Ex.P-1) on the next day (01/08/2012), died pending trial. The mother of the victim was examined as P.W-1. She, in her deposition has stated that, her daughter was pursuing 2nd year Diploma course in AVC Polytechnic College. Her husband was running a petty shop near her residence. Her daughter used to complaint that in the college boys are teasing her. On 31/07/2012 at about 5.45 p.m., while she was in the petty shop assisting her husband, her daughter returned from the college and came to the petty shop to collect the house key. Her daughter face was dull and when she enquired, her daughter told that Sri Karthi, Diwakar, Ashok kumar, Subash and Mahi@Mahendiran (the appellants herein) teased her and abused her saying, will she not love Mahi, whom she is in love, are you a dame ?, why she is still alive?. ____________ Page No.4/14 https://www.mhc.tn.gov.in/judis Crl.A.No.411 of 2014
6. P.W.1 pacified her and sent her to the house assuring that the next day they shall go to the college and report. Her daughter collected the key and left saying she feel ashamed and not interest to live. Thereafter, at about 6.15 p.m., when she returned home, she saw her daughter hanging and struggling.
7. On hearing her scream, her husband and others came. Released the saree knot and brought down her daughter. Took her to Mayavaram for treatment, but she died on the way. So, took her back to the home and informed all the relatives. The next day her husband gave complaint (Ex.P-1) to the police reporting the incident.
8. P.W-2 Karthika, classmate of the deceased Rekha, P.W-3 Kaliswaran and P.W-4 Mansoor Alikhan, both cooks of the hotel near the AVC Polytechnic College turned hostile to the the prosecution and therefore, there is no corroboration to the P.W-1 evidence regarding the alleged teasing and harassment happened near the College. Likewise, P.W-6, P.W-7, P.W-8 and P.W-9 alleged witnesses for the confession statement and recovery of M.O-1 and M.O-2 two wheelers turned hostile.
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9. The trial Court relying upon the deposition of P.W-1, has held that the alleged conversation between P.W-1 and her daughter Rekha amounts to dying declaration and therefore, the guilt of the accused persons found to be proved.
10. The Learned Counsels for the appellants submitted that, the trial court failed to properly appreciate the evidence and law. It failed to consider the fact that the testimony of P.W-1 bristles with embellishments and contrary to the content of the complaint Ex P-1. The trial Court failed to take note of the fact that there was more than 14 hours delay in reporting the matter to the police. There is no plausible explanation for the aberrations found on the left side of the mandible and left side of the chin the body of the victim girl which should have been given due consideration in the light of the fact that the hyoid and thyroid bones found intact.
11. The Learned Counsel further submit that, the saree which alleged to have been used by the victim to hang herself not recovered by the police. Photograph of the SOC not taken, though the Investigating Officer had deposed that, he forwarded the copy of the F.I.R to the Tahsildar, neither the Tahsildar nor ____________ Page No.6/14 https://www.mhc.tn.gov.in/judis Crl.A.No.411 of 2014 the nearby residences were examined to speak about the fact that the victim was found hanging from the fan ceiling. Assailing the trial Court judgment as miscarriage of justice and erroneous, pray for interference.
12. The Learned Government Advocate (Crl.Side) for the respondent in response, submitted that, law does not expect the F.I.R should contain all the facts required for framing charges. There is no inordinate delay in registering the F.I.R. The defacto complainant a rustic villager, not thought of reporting the death of his daughter immediately to the police. This cannot be a ground to doubt the prosecution case. The investigation has unfurled the fact that the victim girl has been teased and harassed soon before her death. The victim girl has reported the matter to her mother before her death. The Trial Court, therefore, rightly took it as dying declaration and convicted the accused. When the evidence of the sole witness inspires the confidence of the Court, lack of corroboration or the witnesses turning turtle due to the influence of the accused persons should not weigh favouring the accused persons.
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13. Points under consideration:-
(i). Whether the testimony of P.W-1 is unassailable to hold the accused persons guilty of the offences under Section 147, 354, 306 I.P.C and Section 4(B) of Tamil Nadu Prohibition of Harassment of Women Act?
(ii). Whether convicting the accused persons solely on the uncorroborated evidence of P.W-1, by terming the alleged statement of the deceased made to P.W-1 will fall within the terms of ‘dying declaration’ as held by the Trial Court?
14. For easy reference, the Sections under which the appellants were found guilty are extracted below:-
Section 147: Punishment for rioting:-
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 354: Assault or criminal force to woman with intent to outrage her modesty:-
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and ____________ Page No.8/14 https://www.mhc.tn.gov.in/judis Crl.A.No.411 of 2014 shall also be liable to fine.] Section 306 : Abetment of 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.
Tamil Nadu Prohibition of Harassment of Women Act: Section 4-B : -
(1) If any woman commits suicide and it is shown that soon before her death, she was subjected to harassment by any person or that in respect of her an offence under section 294,354 or 509 of the Indian Penal Code (Central Act XLV of 1860) was committed, such suicide shall be called the harassment suicide and such person shall be deemed to have abetted the suicide.
(2) Notwithstanding anything contained in section 4, whoever abets harassment suicide shall be punished with imprisonment of either description for a term which may extend to ten years and with fine which shall not be less than fifty thousand rupees.
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15. The 1st charge against these appellants is that they committed offence of Rioting by forming an unlawful assembly near AVC Polytechnic College and causing riot which is punishable under Section 147 of I.P.C. To prove this fact, the prosecution has examined P.W-2, P.W-3 and P.W-4. All these three witnesses turned hostile and no evidence to substantiate this charge.
16. The second charge is that, in continuation of the act of rioting, they outraged the modesty of the victim girl and abused her that, she should not be alive the next day and made lewd comments touching upon her modesty. For this charge also there is no direct evidence. The prosecution solely rely upon the evidence of the P.W-1 who had deposed that the accused person teased her daughter and they made vulgar comments. This part of the deposition is purely an hearsay. Since the person who made the statement is dead, the learned Trial Judge has taken this as the dying declaration. For the very same reason, the Trial Court has relied upon the evidence of P.W.1 to hold the appellants guilty of offences under section 306 of I.P.C and Section 4(B) of the Tamil Nadu Prohibition of Harassment of Women Act.
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17. In the deposition of P.W-1, we find that, she has not attributed any specific utterance to any on the accused. Though she claims that, she know all the 5 accused, it a general statement made by the victim to P.W-1 about the incident alleged to have taken place in her College on the earlier part of the day.
18. As per the case of the prosecution, when the victim came to the petty shop of her parents, both her father and mother (P.W-1) were present. P.W- 1, in their cross examination admits that, her husband was hearing what her daughter was saying to her. Also, he assured that, he will complaint to the Principal the next day. If that is true, then when her husband gave the complaint nearly 20 hours after the occurrence ought to have mentioned this fact in his complaint. The Trial Court for this omission, has assigned its own reasoning which is not the case of the prosecution witness.
19. The complaint Ex.P-1 which is the earliest documentary evidence in this case does not whisper any thing about the appellants or their act of teasing. Neither the prosecution could prove the alleged act of molesting the modesty, teasing or harassment through eye witnesses. What the P.W-1 alleged to have ____________ Page No.11/14 https://www.mhc.tn.gov.in/judis Crl.A.No.411 of 2014 heard from her daughter alone is the basis for conviction. To believe the sole testimony of P.W-1 to convict, her testimony is not trust worthy since her testimony far from the content of the F.I.R tampered with improvision and embellishments.
20. To add, the failure on the part of the investigation to recover the saree alleged to have been used for hanging, non-explanation of the aberrations found on the left side chin and mandible. Unexplained delay in reporting the incident to police gives room to suspect, that the investigation suffers lacunae.
21. In this case, no doubt the doctor has opined that the death was due to hanging. But, the evidence of prosecution does not prove the case of suicide beyond pale of doubt. To convict a person under section 4(B) of the Tamil Nadu Prohibition of Harassment to Women Act, the prosecution has to prove that soon before the death, the victim was subjected to harassment by any person or that in respect of her an offence under Section 294, 354 or 509 I.P.C. The prosecution has failed to prove that soon before the death, Rekha was subjected to harassment by the appellants, by committing the offence under section 354 I.P.C. ____________ Page No.12/14 https://www.mhc.tn.gov.in/judis Crl.A.No.411 of 2014
22. Even assuming that the victim girl has committed suicide whether it was due to abetment of the accused persons is highly doubtful since the sole evidence of P.W.1 does not pass the test of credibility and admissibility. In the said factual matrix, this Court holds that the finding of the trial Court is baseless and contrary to law. It deserves to be set aside.
23. Accordingly, the Criminal Appeal is Allowed. The conviction and sentence passed by the Hon'ble Fast Track Mahila Court, Nagappattinam, dated 23.07.2014 in S.C.No.73 of 2013 is hereby set aside. The fine amount paid if any, shall be refunded to the appellants. Bail bond executed shall stand discharged.
10.06.2022
Index :Yes/No.
Internet :Yes/No.
bsm
To,
1. The Fast Track Mahila Court, Nagapattinam
2. The Section Officer, V.R.Section, High Court, Madras. ____________ Page No.13/14 https://www.mhc.tn.gov.in/judis Crl.A.No.411 of 2014 DR.G.JAYACHANDRAN,J.
bsm Pre-delivery judgment made in Criminal Appeal No.411 of 2014 10.06.2022 ____________ Page No.14/14 https://www.mhc.tn.gov.in/judis