Madras High Court
Suresh vs State Rep. By on 20 September, 2019
Author: T.Krishnavalli
Bench: T.Krishnavalli
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 19.06.2019
Pronounced on : 20.09.2019
CORAM
THE HONOURABLE JUSTICE MRS.T.KRISHNAVALLI
CRL.A(MD).No.255 of 2009
1. Suresh
2. Kalaiyarasi : Appellants/A1 and A2
Vs
State rep. By
The Sub-Inspector of Police,
Thisaiyanvilai Police Station,
Cr.No. 198 of 2006,
Tirunelveli District. : Respondent/Complainant
Prayer: This Criminal Appeal is filed Under Section 374(2)
of Criminal Procedure Code against the judgment passed by the
Sessions Judge (Mahila Court), Tirunelveli, in S.C.No. 255 of 2007,
dated 26.08.2009.
For appellants : Mr.V.Kathirvelu
Senior Counsel
for Mr.K.Prabhu
For Respondents : Mr.A.Robinson
Government Advocate
(Criminal Side)
http://www.judis.nic.in
2
JUDGMENT
This Criminal Appeal is directed against the judgment passed by the Sessions Judge (Mahila Court), Tirunelveli, in S.C.No. 255 of 2007, dated 26.08.2009.
2.The case of the prosecution is that PW1/Dharmaraj was living with his family at Thisiyanvilai and the deceased Kanagavalli is the second daughter of PW1 and while she washing the cloths in pump-set water on 15.11.2006 at about 7.00 pm, the 1st accused came there with an intention of rape on the deceased and against her wish, A1 raped her and at that time, the deceased Kanagavalli tried to escape from the accused and bite the accused upper lip created injury and further she cracked the accused with her nails on neck and chin. When the deceased tried to jump into the well, at the time, the 1st accused gave assurance that he is going to marry her and escaped from the place. When the deceased informed their parents about the occurrence immediately the deceased parents questioned about the occurrence to A2 and A2 insulted the deceased parents with abusing bad words and due to that, the deceased poured kerosene on her body and set fire and immediately, she was taken to the hospital for treatment on http://www.judis.nic.in 3 16.11.2006 and subsequently she died. The Inspector of Police attached to Thisaiyanvilai Police Station has filed a final report against the accused persons examining the witnesses.
3.In the trial court, 14 witnesses were examined and 18 Exhibits and 9 material objects were marked. When the accused were questioned about the incriminating circumstances, they denied the same. The trial court convicted the 1st appellant and sentenced him to undergo RI for 7 years and to pay a fine of Rs. 5,000/-, in default to undergo SI for 6 months for the offence under Section 376 IPC and further sentenced him to undergo RI for 3 years and imposed a fine of Rs.1,000/-, in default to suffer SI for 3 months for the offence under Section 306 IPC and also convicted the 2nd appellant and sentenced him to undergo RI for 3 years and to pay a fine of Rs.1,000/-, in default to undergo SI for 3 months for the offence under Section 306 IPC. Aggrieved by the judgement of the trial court, the appellants are before this court.
4.Heard both sides and perused the materials available on record.
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5.The first contention raised on the appellants/A1 and A2 is that, in this case the medical evidence shows that the hymen is intact and hence there is no evidence for rape and the victim girl also stated before the Magistrate at the time of Dying Declaration that there is only an attempt to commit rape by A1 and hence, there is no evidence for 376 IPC as against A1 and no abatement has been stated by the deceased or by the witnesses PW1 and PW2 as against A2 and according to the prosecution, the only word let her go and die was stated and as per the Judgment of the Hon'ble Apex Court, it was simply stated the words 'go and die', which does not amount to commit suicide and there is no abatement to commit suicide by the deceased and there is no independent witness to connect the accused with the commission of the offences and prays that the appellants/A1 and A2 are entitled to acquittal.
6.In this case, PW1 and PW2 are the parents of the deceased. In respect of the occurrence, PW1 gave the complaint. PW1 in his complaint and evidence stated that on 15.11.2006 at 7.00 pm, his daughter went to wash her clothes near the pump set, at that time, A1 came and forcibly raped his daughter and at the time of commission of the offence in order to resist it, his daughter http://www.judis.nic.in 5 caused injury on the lips of A1 and his daughter, after the occurrence attempted to commit suicide, for that A1 told that he will marry her and then only his daughter came to the house and told the occurrence to him and his wife and then, they went to the house of A2 and stated the occurrence and for that, A2 said that “me;j njtoahit rhfr;brhy;Y capUld; Vd; ,Uf;fp;whs;” and also abused with filthy language and due to it, the deceased went to the kitchen and poured kerosene and set fire and then, he and his wife took the injured to the private hospital and they took the injured to Government Hospital, Tirunelveli, for further treatment and on the next day, the injured died. Hence, the evidence of PW1 is corroborated with the contents found in Ex.P1 complaint.
7.PW2 deposed that on 15.11.2006 at 7.00 pm, when her daughter went to wash her clothes near the pump set, at that time A1 came and forcibly raped her daughter and at the time of commission of the offence, in order to resist it, her daughter caused injury on the lips of A1 and her daughter after the occurrence attempted to commit suicide and for that, A1 told that he will marry her and then her daughter came to http://www.judis.nic.in 6 the house and told the occurrence to him and his wife and then, they went to the house of A2 and stated the occurrence for that A2 said that “me;j njtoahit rhfr;brhy;Y capUld; Vd; ,Uf;fp;whs; vd;W mtkhdkhfngrpdhs;.;.” and also used filthy language and due to it, the deceased went to the kitchen and poured kerosene and set fire and then, she and her husband took the injured to the private hospital and they took the injured to Government Hospital, Tirunelveli, for further treatment and on the next day, the injured died. Hence, the evidence of PW2 is corroborated with the evidence of PW1.
8.The learned counsel for the appellants/A1 and A2 argued that when the injured was admitted in the private Hospital at Thisaiyanvilai, the Doctor enquired her and for that, she stated that one known person attempted to rape her and due to it, she poured kerosene and set fire and hence, there is no evidence for rape as against A1 and prays that the 1st appellant/A1 is entitled for acquittal.
9.In this case, the Doctor, who gave first treatment to the injured was examined as PW6. PW6 deposed that on 15.11.2006 at 9.00 am, when he was on duty, the injured was brought by her http://www.judis.nic.in 7 father for treatment and when he enquired her, the injured told that one known person attempted to rape her and hence, she poured kerosene on her body and set fire. PW6 found the following injuries on the body of the deceased:-
“1.Burn injury over the entire face, scalp, front of neck, inner aspect of left arm, forearm, forearm outer aspect of right entire forearm and hand.
2.1.5cm. dia skin deep lacerated upper part of left left back;
3.Aberrations over the inner aspect of left back 2x5 cm skin deep 2x5 cm skin. Deep.
middle of lower part of back 3 x5cm, outer aspect of lower part of right side back 2x5.
Injuries in her private parts,were present.”
10.The Doctor, who conducted post-mortem on the body of the deceased was examined as PW9. PW9 found the following injuries:-
“Epidermo dermal burns seen on the entire face, scalp, front of neck, inner aspect of left arm, forearm, outer aspect of right arm, entire forearm & hand. Degloving http://www.judis.nic.in 8 of right hand with peeling & blackening of cuticle seen over the burnt areas. Singeing of eye brows, eyelashes & partial singeing of scalp hair in front & sides noted I.V cut down wounds noted on the left dorsum of hand.
(2)1.5 cm diameter x skin deep lacerated injury seen on the upper part of left back.
(3)Abrasions noted over the
following Areas:
- upper part of inner aspect of left back 2 x .5 cm – middle & lower part of 3 x .5 cm – outer aspect of lower part of right back 2 x .5 cm ON EXAMINATION OF GENITALS : 1.5 x 5 cm x skindeep, 2 x .5 cm x skin deep laceration seen close to each other on the upper part of right labium minora. Vagina admits little finger with ease. No laceration of Hymen noted. No foreign hairs noted.”
11.The Doctor, who gave treatment to the accused was examined as PW8. PW8 deposed that on 17.11.2006 at 2.30 pm, http://www.judis.nic.in 9 when he was on duty, A1 was brought by the police and A1 told that he sustained injuries in rapping a girl and have been beaten by the girl and scouted by nails at 7.00 pm on 15.05.2006 at Thisaiyanvilai and he found the following injuries:-
“Alleged to have sustained injuries while rapping a girl and have beaten by the girl and scruted by nails at 7p.m 15.11.2006 Thisaiyanvilai.
1.A bite injury on the upper lip 2 cm x 1 cm.
2.Nail scratch abrasion on the right cheek 4 cm x 0.25 cm.
3.Nail scrutch abrasion on the right side of the neck 4cm x 0.5cm ”
12.Either PW6 or PW9 have not stated that they have found evidence for committing rape on the deceased. PW9 in the post-mortem certificate stated that the hymen of the deceased was intact. PW6 the Doctor, who gave first treatment to the deceased found injuries on the private part of the deceased and further deposed that the above injuries may be caused when the victim http://www.judis.nic.in 10 resisted the commission of rape.
13.PW9 the Doctor, who conducted post-mortem on the body of the deceased also stated that the external injuries found on the body of the deceased may be caused, when there was sexual assault on the body of the victim by a man. In this case, when the deceased was admitted in the Government Hospital, Dying Declaration of the deceased was recorded by the Judicial Magistrate and the Dying Declaration was marked as Ex.P13. The learned Magistrate put a question to the injured to the effect that how she sustained injuries. For that, the victim replied that she poured kerosene herself and set fire.
14.The Court below, at the time of recording of the Dying Declaration, at first the Magistrate certified that she recorded the statement stated by the Victim and then the Doctor certified as follows:-
“I certify that the patient was conscious and is physically and mentally fit to give dying declaration, the dying declaration was recorded in my presence and to my hearing. While recording the dying declaration neither the police nor the relatives were present. Throughout the recording of dying http://www.judis.nic.in 11 declaration, the patient was conscious and well oriented to give dying declaration.”
15.Further, the learned Magistrate certified that at the time of recording the Dying Declaration of the victim, she was conscious and physically and mentally fit to give Dying Declaration and neither the police, nor the relatives were present at the time of recording Dying Declaration of the deceased and further, the learned Magistrate signed. But afterwards, the learned Magistrate recorded regarding the causes of injuries sustained by the deceased. This statement recorded by the Magistrate was vehemently opposed by the learned counsel for the appellants/accused stating that only the Magistrate signed and the Doctor has not certified that at the time of recording this subsequent statement, the patient was conscious and physically and mentally fit to give Dying Declaration and hence, the subsequent recording of the Dying Declaration cannot be relied upon.
16.On perusal of Ex.P13, at first the Magistrate recorded the statement of the Victim and the Doctor also certified that at the time of recording Dying Declaration, the patient was conscious and physically and mentally fit to give Dying Declaration. But on the http://www.judis.nic.in 12 perusal of the subsequent recording of the Dying Declaration of the victim, only Magistrate signed, but the Doctor has not certified that at the time of recording the above statement that the patient was conscious and physically and mentally fit to give Dying Declaration. The Magistrate has not stated that why the subsequent statement was received separately. Further the learned Judicial Magistrate has not obtained signature of the deceased in the subsequent statement.
17.At this juncture, it is necessary to refer the cross examination of PW11, the Magistrate, who recorded the Dying Declaration of victim. PW11 stated as follows:-
“nehahsp kuz thf;FK:yk; gjpt[ bra;j gpd;dh; mij goj;J fhz;gpf;f ntz;Lk; vd;why; rhp jhd; mt;thW goj;Jf;fhl;o mth; rhp vd;W Xj;Jf;bfhz;l gpd;dh; jhd; mthplk; ifbaGj;njh my;yJ ifnuif bgwntz;Lk; vd;why; rhpjhd;. fha';fs; vg;go Vw;gl;lJ vd;W nehahsplk; nfl;lnghJ mth; ehdhf vdf;F kz;bzd;iz Cw;wp gw;witj;Jf; bfhz;nld; vd;W brhd;dhh; kuz thf;FK:yk; gjpt[ bra;J Koj;j neuk; 5/20 vd;W vGjpas [ ;nsd; fha';fs; Vw;gl fhuzk; tpsf;fk; kw;Wk; gjpt[bra;agl;l tptu';fSf;F nehahspapd; ifbahg;gk; bgwtpy;iy nehahsp jhd; kz;bzd;iz Cw;wp gw;witj;jjw;F brhy;ypa fhuz';fis bjhFg;ghf mjpy; vGjpapUf;fpnwd;/”
18.On careful perusal of the Dying Declaration recorded http://www.judis.nic.in 13 by PW11, at first, the learned Magistrate, after recording the Dying Declaration, she obtained the thumb impression of the victim. Further, the Doctor certified that at the time of recording the Dying Declaration, at first the patient was conscious and he is physically and mentally fit to give Dying Declaration and the Dying Declaration was recorded in his presence and to his hearing, neither the police nor the relatives were present and through out the recording of Dying Declaration, the patient was conscious and well oriented to give Dying Declaration and further, the learned Magistrate certified that after recording the Dying Declaration of the victim, she read over the contents to the victim and accepted by her, but recording the subsequent Dying Declaration, it was not stated that at the time of recording the subsequent statement of the victim, the signature of the victim was obtained and the Doctor also certified that at the time of recording the subsequent statement of the victim, the victim was conscious and physically and mentally fit to give Dying Declaration. Further, the learned Magistrate has not stated that at the time of recording the subsequent statement of the victim, she was concious and fit to give Dying Declaration. There was no explanation given on the Magistrate why she recorded subsequent statement of the victim. http://www.judis.nic.in 14 Hence for the above reasons, the subsequent statement of the victim recorded by the Magistrate cannot be relied upon.
19.In this case, PW1 and PW2 stated that their daughter told them that when she went to wash her clothes on 15.11.2006 at 7.00 pm, A1 came and raped her and when the deceased attempted to commit suicide, for that the accused promised to marry her and the she came to the house and narrated the occurrence and they questioned the occurrence to A1, for that A2 used filthy language and due to it, their daughter committed suicide. But the victim was admitted in the private hospital at Thisaiyanvilai and she stated that A1 attempted to rape her and due to that, she poured kerosene and set fire and further, the Doctor, who conducted the post- mortem has stated that the hymen of the deceased was intact. Further, the Doctor who gave treatment to A1 found injuries on the lips of A1. The Doctor, who conducted post-mortem on the body of the deceased has not found any evidence for rape.
20.Considering the evidence of PW1 and PW2 and the evidence of PW6 and PW9, it reveals that there was no evidence of rape by A1. But there was evidence to the effect that A1 attempted http://www.judis.nic.in 15 to commit rape on the victim.
21.The learned counsel appearing for the appellants argued that in this case, when the victim stated that A1 raped her and when it was questioned by PW1 and PW2 to A2, for that he replied that “me;j njtoahit rhfr;brhy;Y capUld; Vd; ,Uf;fp;whs;;.” and due to it, she committed suicide, but there was no evidence for instigation by A2 to commit suicide by the deceased and the words uttered in a fit of anger or emotion without any intention cannot be termed as instigation, hence the offence under Section 306 IPC is not made out as against and prays that A2 is entitled for acquittal. For that, the learned counsel for the 2nd appellant/A2 submitted a ruling reported in (2009)1 SCC (Cri) 578 (Sonta Rama Krishna Vs Sonti Shanti Sree and another) wherein it has been held in para 11 that Section 107 IPC deals with abetment of a thing, which is extracted hereunder:-
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 http://www.judis.nic.in 16 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 I – 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 of procure, a thing to be done, is said to instigate the doing of that thing.
Explanation II – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of a that act, and thereby facilitates the commission thereof, is said to aid the doing of that act''
22.For the same proposition, the learned counsel submitted another ruling reported in (2011)3 MLJ (Crl) 829 (Sekar Vs. State by Inspector of Police, Tiruchengode Police Station, Namakkal District), wherein it has been held as follows:-
“Mere uttering of words ' go and die' itself will not constitute such abatement. Applying the above principles, to asses as to whether the accused really had the animus and had driven the woman to commit suicide, the Court has to take into account the creditability of the circumstances,. In this case, except the http://www.judis.nic.in 17 evidence to the effect that there were frequent domestic quarrels between the appellant and D.1 there is no other material available on record to show that the appellant had the intention to drive the woman to commit suicide.”
23.In this case, PW1 and PW2 deposed that when their daughter came and narrated the occurrence, they went to the house of A2 and questioned the activities of A1 for that A2 replied that “me;j njtoahit rhfr;brhy;Y capUld; Vd; ,Uf;fp;whs;;.” and due to it, their daughter poured kerosene and set fire. At the time of using filthy language by A2, the deceased was not present and further A2 has not used filthy language to the deceased. The deceased at the time of admitting in the private hospital stated that A1 attempted to commit rape hence she poured kerosene and set fire. The deceased has not stated that due to filthy language used by A2, she poured kerosene and set fire. Hence, there is no nexus between commission of suicide by the 2nd appellant/A2 and the deceased.
24.At this juncture, it is necessary to refer Section 306 of I.P.C, which would run thus:-
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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.”
25.On careful perusal of the evidence of PW1 and PW2 ,it reveals that there was no instigation on the part of A2 to commit suicide by the deceased and further, there was no evidence on record that the deceased committed suicide because of any abatement on the part of A2. Hence the offence under Section 306 IPC is not made out as against the 2nd appellant/A2.
26.In this case, the trial Court came to the conclusion that A1 committed rape and found guilty under Section 376 IPC, but on careful perusal of the evidence of the witnesses and the document produced, it reveals that only A1 attempted to rape the victim. Hence, the 1st appellant/A1 is found guilty under Section 376 IPC read with 511 IPC for the attempt of rape. The 2 nd appellant/A2 is found not guilty for any offence and hence, she is acquitted from http://www.judis.nic.in 19 the charges levelled against her.
27.Accordingly, the Criminal Appeal is allowed in part. The first appellant/A1 is found guilty under Section 376 r/w 511 IPC and he has to undergo 5 years RI and to pay a fine of Rs.5,000/-, in default to undergo 6 months SI for the said offence. In respect of the 2nd appellant/A2 she is acquitted from the charges levelled against her. The bail bond if any executed by her shall stand cancelled and the fine amount if any paid by her shall be refunded to her.
20.09.2019 Index : Yes/ No Internet : Yes smn/er http://www.judis.nic.in 20 T.KRISHNAVALLI,J smn/er To,
1.The Sessions Judge, Mahila Court, Tirunelveli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
CRL.RC(MD).No.255 of 2009
20.09.2019 http://www.judis.nic.in 21 http://www.judis.nic.in