Madras High Court
Chinnathambi vs State Through on 28 August, 2009
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 12.12.2019
JUDGMENT DELIVERED ON : 07.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.(MD)No.269 of 2009
Chinnathambi .. Appellant/ sole accused
Vs.
State through
The Inspector of Police,
Pasuvanthanai Police Station,
Tuticorin District
Crime No.9 of 2003 .. Respondent/complainant
PRAYER: Petition filed under Section 374(2) of Criminal Procedure
Code, to set aside the order of conviction and sentence passed in
S.C.No.300 of 2003 dated 28.08.2009 by the Assistant Sessions
Judge, Kovilpatti, Tuticorin District.
For Appellant : Mr.M.Karunanithi for
Mr.M.Jegadeesh Pandian and
Mr.R.Saravanakumar,
Legal Aid Counsel
For Respondent : Mr.K.Suyambulinga Bharathi,
G.A., (Crl. Side)
JUDGMENT
The appellant is the single accused in this appeal. He was charged for the offence under Section 306 of I.P.C. The trial Court, http://www.judis.nic.in 2 by its judgment dated 28.08.2009, found the appellant guilty for the offence under Section 306 of I.P.C. and sentenced him to undergo 10 years RI and to pay a fine of Rs.1,000/- in default to undergo 6 months SI. Against the said conviction and sentence, this present appeal has been filed.
2.The brief facts of the case of prosecution are as follows:
(i)P.W.1 is the father of the deceased. P.W.2 is the sister of the deceased. P.W.3 is the owner of the well, in which, the deceased committed suicide. The deceased Parvathy was given in marriage to the son of the appellant/accused and since the husband of the deceased was unemployed, his family depends upon the appellant for their livelihood and taking advantage of the same, the appellant used to misbehave with the deceased Parvathy.
Meanwhile Parvathy gave birth to a male child viz., Subburaj. The appellant compelled the parents of the deceased to send back the deceased to his home and since thereafter, the appellant tried to misbehave with the deceased, on 12.01.2003 in the night hours, she killed her son by immersing in to cement water tank and thereafter, she committed suicide by jumping into the well. http://www.judis.nic.in 3
(ii)Thereafter, the appellant/accused went to the police station, gave a complaint Ex.P5 to P.W.11, Sub Inspector of Police, who received the same, registered a case in crime No.30 of 2003 for the offences under Sections 302 of IPC and 174 of Cr.P.C. FIR is Ex.P6 and forwarded the same to Revenue Divisional Officer for investigation and also to the higher officials.
(iii)P.W.12, Revenue Divisional Officer received the copy of case file, went to the scene of occurrence, conducted inquest on the bodies of the deceased and her son. Inquest reports are Exs.P7 and P8, sent the bodies for postmortem and after completion of his enquiry, he forwarded the report to the police officials.
(iv)P.W.13, Deputy Superintendent of Police took up the investigation, went to the scene of occurrence, prepared observation mahazers Ex.P11, P13, rough sketch Ex.P12, P14 respectively and recorded the statement of witnesses, during his investigation he found that the appellant/accused misbehaved with the deceased and tried to have intercourse with the deceased, due to the act of the appellant, the deceased unable to bear the sexual torture of the appellant, killed her son and committed suicide. Accordingly, he altered the offence under Section 306 IPC and the http://www.judis.nic.in 4 alteration report is Ex.P16. P.W.10 Doctor conducted postmortem on the bodies of the deceased Parvathy and her son Subburaj and issued Ex.P.3 and P4 postmortem certificates respectively.
(v)Thereafter, on 20.01.2003, P.W.14 Inspector of Police took up the case for further investigation, arrested the accused at about 3.00 p.m. The accused was remanded to judicial custody. Further, he recorded statements of the witnesses, obtained chemical report Ex.P17 and thereafter, after on completion of investigation, filed charge sheet against the appellant/accused.
3.Before the trial Court, on behalf of the prosecution P.Ws. 1 to 14 were examined and Exs.P.1 to P.17 were marked, no material object was produced. On completion of the examination of the witnesses on the side of the prosecution, the accused was questioned under section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. On behalf of the defence, no witness was examined and no document was produced.
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4. Considering the evidence available on record, the learned Assistant Sessions Judge found the accused guilty for the offence under Section 306 of I.P.C and convicted him as stated above. Challenging the judgment of conviction and sentence, the appellant/accused has preferred this appeal.
5.The learned counsel appearing for the appellant submits that except the father of the deceased, sister of the deceased and the owner of the well, in which the deceased was found dead, the other witnesses viz., P.Ws.4 to 7 not supported the case of the prosecution. The witnesses viz., P.Ws.8 to 14 are official witnesses. In this case, no independent witnesses were examined and the documents collected were forwarded to the Court belatedly.
6.He further submits that though the investigation was initially conducted by the Deputy Superintendent of Police, P.W.13, later, the investigation was concluded and charge sheet was filed by P.W.14, Inspector of Police. There is no evidence in any manner to show that the appellant abetted commitment of suicide. The lower Court failed to act upon Ex.P9, suicide letter. This letter was not confronted with P.Ws.1 and 2, the father and sister of the deceased. There is no other evidence to show that Ex.P9 was not http://www.judis.nic.in 6 written by the deceased. For convicting a person under Section 306 IPC, two ingredients have to be fulfilled viz., the intention of the accused, to aid or instigate or abet the deceased to commit suicide is necessary. In this case, the evidence of P.Ws.1 and 2 alone are not sufficient, both are interested witnesses.
7.He further submits that P.W.1 states that within 30 days from the delivery of the child, the deceased was forced to come to the matrimonial home. P.W.2, sister of the deceased says that it was three months after the delivery of child, she was forced to come. P.W.2 admits that the suicide note Ex.P9 was read over to her by the Revenue Divisional Officer, P.W.12.
8.Further, the allegation against the appellant is that he made advancements and caused sexual harassment to the deceased. P.W.2 only mentions about “,k;i ; r” which does not denote harassment in any manner (cly; hPjpahft[k; kdhPjpahft[k; Jd;g[Wj;jy;). The only other evidence is P.W.1, who said to have stated that when his daughter made a complaint against the appellant as “vjphp jtwhf ele;J bfhs;s Kay;fpwhh; jtwhd cwtpw;F Kaw;rpf;fpwhh; vd;W vd; kfs; Twpdhs;”. During that time, she was 7 months pregnant and she was taken to her parents place to deliver the child. No person would make advancement to a 7 month pregnant lady.
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9.Further, after the delivery, when the deceased joined her matrimonial home, P.W.1 had visited there and at that time, he is said to have stated “ehq;fs; nghf nghf rhpahfp tpLk; vd;W kfsplk; brhy;yptpl;L te;njhk;.”. No prudent man on coming to know about that his daughter being tortured and facing sexual advancements, would state that as days pass by, the problem will get resolved. Other than this, no other materials are found against the appellant. The wife of the appellant and the husband of the deceased are residing along with the deceased and they are not examined as witnesses in this case. When the charge is grave, the legal evidence must be certain and proper.
10.He would further submit that the neighbours viz., P.Ws. 4 and 5 as well as the observation mahazer witnesses viz., P.Ws.6 and 7 have not whispered anything against the appellant. The postmortem doctor P.W.10 had issued Ex.P4 postmortem certificate for the deceased son Subburaj and Ex.P3, postmortem certificate for the deceased Parvathy. In Exs.P3 and 4, the doctor gave opinion that the death would appear to have died of Asphyxia due to drowning. The appellant had been falsely implicated in this case and there is no iota of evidence to implicate the appellant in this case and thus, he prayed for acquittal. In support of his contention, he relied on the following judgments:
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1.(2019) 3 SCC 315 – M.Arjunan Vs. State 2.2015-1-L.W.(Crl.) 132 – Isiah V. The Inspector of Police, H1 Police Station 3.2008 CRI.L.J.4301 – Rajbabu V. State of M.P.
11.The learned Government Advocate (criminal side) submitted that in this case, it is an admitted fact that the deceased and the appellant were residing in the same roof. The appellant's son was given in marriage to the deceased. The appellant's son was not working and making any earning. He was depending on his father for his survival and his wife. Taking advantage of the same, the appellant had made advancements towards the deceased, for which, she had been making complaint to her father and sister before her delivery.
12.He further submitted that even within 30 days from the delivery, she was forced to come back to the matrimonial home.
The torture and harassment perpetuated suicide by the deceased. P.Ws.1 to 3 were informed by the deceased on the sufferings and harassment she was subjected at the hands of the appellant. The husband of the deceased and her mother-in-law though aware of the appellant's act, they were helpless to come to her rescue, were http://www.judis.nic.in 9 mute spectators. The death of the deceased and her son are not natural. Taking advantage that the appellant's son and his wife are dependant on the appellant for their survival, the appellant had made such advancements.
13.Further, the deceased was the second wife to the appellant's son. Later, the deceased came to know that the marriage was dissolved and the reason was that the appellant made sexual advancements towards her. On 13.01.2003, the body was found at 4.45 a.m, however, the appellant lodged the complaint about the missing of her daughter-in-law only at 10.30 a.m. on the same day, with much delay.
14.The appellant had not mentioned about Ex.P9 suicidal note, when he made the complaint at 10.30 a.m. Only during the enquiry by Revenue Divisional Officer, P.W.12, Ex.P9 was produced after 4 hours. Ex.P9 Letter is unsigned and there is no material produced to show that no other admitted writings were produced to show that the writings found in Ex.P9 are the writings of the deceased Parvathi. P.Ws.1 and 2 were not confronted with Ex.P9. On the other hand, during the RDO enquiry, the appellant's son viz., Subrmaniam had stated as “tprhuizapd; nghJ xU fojk; fhz;gpf;fg;gl;L http://www.judis.nic.in 10 mJ vdJ kidtpapd; ifbaGj;Jjhdh vd;W nfl;fg;gl;lJ. me;j fojj;jpy; cs;s ifbaGj;J vd; kidtpapd; ifbaGj;J ,y;iy. mtsJ ifiaGj;J vdf;F ed;whf bjhpa[k;. tPl;oy; filapy; ,Ue;J rhkhd;fs; thq;Ftjw;F mts;jhd; yp];l; vGjpj; jUths;. ,J ahUila ifbaGj;J vd;W bjhpahJ.”. Likewise, the wife of the appellant viz., Chinnathambi had stated that she was not aware of the writings. Further, on perusal of Ex.P9, a new story has been projected. Ex.P9 was produced with a delay of 4 hours. In Ex.P9, there is no signature.
15.P.Ws.1 and 2 have clearly stated about the sexual torture given to the deceased. P.W.11 Revenue Divisional Officer, who conducted enquiry, in his report Ex.P10 categorically given a finding that there was no dowry demand, but, sexual harassment and torture meted out to the deceased. Further, he had examined 14 persons during his enquiry and except the appellant, all the other witnesses have denied Ex.P9 suicidal note and its writings.
16.Further, the appellant by producing a forged document to mislead the investigation, has been established. The appellant is the reason for the death of the deceased Parvathi and her son Subburaj. The lower Court rightly analysed the oral and documentary evidence and convicted the accused, which needs no http://www.judis.nic.in 11 interference by this Court and hence, he prayed for dismissal of the appeal. In support of his contention, he relied upon the decision of the Hon'ble Supreme Court in Criminal Appeal No.233 of 2010 in Ude Singh & Ors. Vs. State of Haryana and the relevant portion is extracted herein:
“15.Thus, “abetment” involves a mental process of instigating a person in doing something. A person abets the doing of a thing when: (i) he instigates any person to do that thing; or (ii) he engages with one or more persons in any conspiracy for the doing of that thing; or (iii) he intentionally aids, by acts or illegal omission, the doing of that thing. These are essential to complete the abetment as a crime. The word “instigate” literally means to provoke, incite, urge on bring about by persuasion to do anything.
17.Heard the learned counsel appearing for the petitioner and the learned Government Advocate (criminal side) and perused the materials available on record.
18.Considering the rival submissions and perusal of the materials, it is admitted that the appellant and the deceased http://www.judis.nic.in 12 persons along with the appellant's son and wife were living in the same roof. The appellant's son was not employed, was depending upon the appellant for his survival and his wife. Taking advantage of the same, the appellant had made sexual advancements towards the deceased, which she had complaint to her father and sister.
19.P.W.11, Revenue Divisional Officer, during his enquiry examined several family members of the deceased as well as the appellant. From his report, it is seen that it is not a case of dowry demand, but, the death is unnatural and she had been subjected to harassment, for which, she committed suicide. The medical evidence confirm the cause of death. The appellant produced Ex.P 9 suicidal note with much delay only during the RDO enquiry. But, no explanation given from where and how, he caught hold of Ex.P9.
20.Further, the family members of the deceased as well as the appellant's wife and son had categorically stated that handwritings in Ex.P9 is not that of the deceased. Further, on going through Ex.P9, nothing could be found certain. An attempt has been made by the appellant to project a suicidal note to escape from the clutches of law.
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21.In view of the categorical finding that Ex.P9 is not written by the deceased and the same had been created and produced by the appellant for his defence. From the above, it is proved with clinching evidence, the abatement was caused by the appellant in deceased ending her life. The trial Court analysed the oral and document evidence in its proper prospective and found the appellant/accused guilty for the offence under Section 306 of IPC and this Court finds no reason to interfere with the same. However, it is submitted by the learned counsel appearing for the appellant that now, the appellant is aged about 81 years and he is in custody and also admitted in hospital for taking treatment. Therefore, considering the said submission and the age of the appellant this Court feels that the sentence imposed against the appellant may be reduced.
22.Accordingly, the conviction passed in S.C.No.300 of 2003 dated 28.08.2009 by the Assistant Sessions Judge, Kovilpatti, Tuticorin District is confirmed. However, the sentence imposed against the appellant is reduced to 5 years RI.
23.With the above modification in sentence, this criminal appeal is partly allowed.
07.01.2020
Index : Yes/No
Internet : Yes/No
Arul
http://www.judis.nic.in
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To
1.The Inspector of Police,
Pasuvanthanai Police Station,
Tuticorin District.
2.The Assistant Sessions Judge,
Kovilpatti.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
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M.NIRMAL KUMAR, J.
Arul
Crl.A.(MD)No.269 of 2009
07.01.2020
http://www.judis.nic.in
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Pre-Deliver Judgment made in
Crl.A.((MD) No.431 of 2014
To
The Honourable Mr.Justice M.NIRMAL KUMAR
Most respectfully submitted
(V.S.Arul Rajan)
http://www.judis.nic.in