Madras High Court
Abudhageer vs State on 27 April, 2019
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 13/04/2019
DATED : 27.04.2019
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CRL.A.No.244 of 2009
Abudhageer : Appellant/Accused
Vs.
State,
Represented by the
Inspector of Police
All Women Police Station (West)
Coimbatore.
(Crime No. 17 of 2007) : Respondent/Complainant
PRAYER: Appeal is filed under Section 374(2) of the Code of Criminal
Procedure against the Judgement dated 23.04.2009 made in S.C.No.
65 of 2008, on the file of the Sessions Judge, Mahila Court, Court of
the Sessions of the Coimbatore Division.
***
For Appellant : Ms.P.Lavanya
for J.Franklin
For Respondent : Ms. S. Thankira
Government Advocate (Crl. Side)
JUDGMENT
This appeal has been filed against the Judgment dated 23.04.2009 in S.C.No. 65 of 2008, on the file of the Sessions Judge, Mahila Court, Court of the Sessions of the Coimbatore Division. http://www.judis.nic.in 2
2. The Sessions Court, had convicted the appellant/accused Abudhageer in S.C.No. 55 of 2008 by Judgement dated 23.04.2009 for commission of offences punishable under Section 498-A IPC and under Section 306 IPC and had sentenced him to undergo rigorous imprisonment for three years and fine of Rs.1000/-; in default simple imprisonment for one year for offence under Section 498-A IPC and rigorous imprisonment for 10 years and fine of Rs.1,000/- in default simple imprisonment for one year for offence under Section 306 IPC. It was directed that the period of sentence shall run concurrently.
3. The appellant is an appeal against the said Judgement.
4. The Inspector of Police, All Women Police Station (West) Coimbatore, had filed a final report in Crime No. 17 of 2007 charging the accused with commission of the offence punishable under Section 498-A IPC and under Section 306 IPC with relation to the death by burn injuries of his wife Pousiya Begum on 10.03.2007.
5. The Inspector of Police, in her final report stated that the accused had married the deceased Pousiya Begum some 12 years prior to 06.03.2007. The accused was often under the influence of liquor and quarrelled with his wife. He constructed a house and incurred debts. He demanded the deceased to bring money from her http://www.judis.nic.in 3 sisters/brother. He ill-treated her. On 04.03.2007 he demanded her to bring money from her brother-in-law by pledging the xerox copy of the sale deed of the property. The deceased refused. In the intervening night between 05.03.2007 and 06.03.2007, he continuously ill-treated and humiliated her and scolded her stating ePn a y;yhk; vJf;F ca p N u h L ,Uf;f , xd; W nrj;J g;N g h ,y;iyn a d; w h y; F o e ;ijfisf; $l;bf;fpl;L cd; m g; g h f pl;lNa Ngh a;tp L ” and also gave her a kerosene can and match box and instigated her to pour kerosene over herself and light the match. Under such instigation and aid, she poured kerosene and ignited the match. She suffered extensive burn injuries and died on 10.03.2007 at Coimbatore Government Hospital.
6. The Judicial Magistrate No.I, Coimbatore, committed the case to the Court of Sessions and the Principal Sessions Judge, Coimbatore, made over the case to the Mahila Court, Coimbatore.
7. The Accused appeared before the Mahila Court, Coimbatore and charges were framed under Section 498-A IPC and under Section 306 IPC. The accused denied the charges and claimed to be tried.
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8. The learned Mahila Court Judge then invited the prosecution to lead evidence and prove the charges. Accordingly, during trial, the prosecution examined 15 witnesses as PW-1 to PW-
15. They also filed 14 Exhibits as Exs. P-1 to P-14. They also produced two material objects as MO-1 and MO-2. On conclusion of trial, the incriminating portion of the evidence was put to the accused under Section 313 Cr.P.C. His statements were recorded. On the side of the accused, one witness was examined as DW-1. Thereafter, upon hearing arguments, the learned Mahila Court Judge held that the prosecution had proved the charges beyond reasonable doubt and convicted the accused and imposed sentences as aforsaid.
9. The learned Sessions Judge found, as a fact, that the accused was addicted to alcohol and had also caused ill-treatment and cruelty to his wife. He also demanded money on many occasions. The accused had also asked PW-5 Sulaekha, the elder sister of the deceased and PW-7, her husband Jaffar Ali, to arrange for loan of Rs.1/- lakh over his property to settle his debts due to PW-10 Achuthan Bai. Since the property was already under mortgage, PW-5 and PW-7 expressed inability to arrange for loan. This led the accused to cause further ill-treatment of his wife. http://www.judis.nic.in 5
10. The learned Mahila Court Judge also found as a fact, that in the intervening night between 05.03.2007 and 06.03.2007, the deceased Pousiya Begum poured kerosene over her body and set herself on fire and suffered burn injuries. The accused was present at that time. He however made efforts to extinguish the fire. He also suffered burn injuries. The neighbours helped to finally extinguish the fire and thereafter the accused and the deceased were shifted to the hospital. The Judicial Magistrate No. VI, Coimbatore recorded the dying declaration of the deceased Pousiya Begum. In the dying declaration marked as Ex. P-9 the deceased had stated as follows:-
“vd; fzth; jpdK k; Foj;Jtpl;L tUthh;. v';f tPl;oy;. vd; kr;rhDf;F k; brhj;J rk;k e;jk hf vd; fzth; vd;id jpl;o. vd;d plk; rz;ilg;ng h Lt h h;. Vd;id[ak; vd; FH e;ijfisa[k; tPl;il tpl;L bt s p n a nghf brh d;d h h;. Xnu rz;il. v';fhtJ ngh a p rht[ vd;w h h ; e P n a vd;idf; bfhy; vd;n w d ;. mjw; F vd; fzth; e P n a rht[ vd;w h h;. e h d; mUf p y; ,Ue;j kz;bzz;b z a; vLj;J C w; w p f; bf h z;nld;. m';nf ,Ue;j m L g; g p y ; ,Ue;j jPa p y; itj;J bfhz;nld;. vd; fzth; vd;id jpl;of;bfhz;nl ,Uf;fp w h h; vd W eh n d jP itj;Jf;bfhz;nld;. .”
11. Pousiya Beguam died on 10.03.2007 in the hospital. Pursuant to investigation in FIR in Cr.No. 17 of 2007, the Inspector of Police, All Women Police Station (West), filed a final report against the accused charging him with commission of offence under Section 306 IPC and under Section 498-A IPC.
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12. During trial, PW-1, Ali Ahammed, the father of the deceased was examined. PW-2 Dr.V.S.Venkatesan; PW-3 Dr.Viswanathan; PW-4 Dr.Diraviyaraj, PW-8 Dr.Saravana Kumar and PW-12 Dr.Thirumalaiswamy, Medical Officers were examined; PW-5 Sulekha, elder sister; PW-6 Faizal, younger brother; and PW-7 Jaffar Ali, the brother-in-law of the deceased, were also examined. PW-13 Ravi Shankar, was the Judicial Magistrate No. VI, Coimbatore, who recorded the dying declaration of the deceased. PW-15 was Inspector of Police, who filed the final report. Among the documents marked, Exs. P-1 and P-2 were the postmortem certificate and its final opinion; Ex.P-3 and P-4 were the Accident Register copies of the deceased and the accused; Ex.P-7 was the statement of the deceased; Ex.P-8 was the medical certificate issued by PW-12 Dr.Thirumalaiswamy recording fit mental status to give a dying declaration; Ex.P-9 was the dying declaration of Pousiya Begum; Ex.P-10 was the First Information Report; and Ex.P-13 was the charge alteration report consequent to death of Pousiya Begum. The plastic can and match box stick were produced as MO-1 and MO-2. The daughter Mofia, of the accused and deceased was examined as DW-1. The learned Mahila Court Judge analysed the oral and documentary evidence and held that the evidence of PW-1 clearly revealed that the accused was addicted to alcohol and often quarrelled with his wife demanding her http://www.judis.nic.in 7 to bring Rs.50,000/- from her parents in order to clear the debts incurred by him. It was also held that it had been established from the evidence of PW-1 that on 04.03.2007, the accused had asked for a loan of Rs.1/- lakh from PW-5 when he attended a marriage engagement function. Since the demand was not met, he quarrelled with the deceased in the intervening night between 05.03.2007 and 06.03.2007. The learned Mahila Court Judge held that the evidence further established that the accused instigated the deceased to commit suicide. The learned Mahila Court Judge relied on such evidence as also the dying declaration of the Pousiya Begum. The evidence of PW-1 was corroborated on all grounds by PW-5 Sulekha, the elder sister of the deceased. She also spoke about the marriage engagement of her daughter Shameena on 04.03.2007 and that the accused demanded her to pay Rs.1/- lakh to clear his debts. She received information on 06.03.2007 from PW-1 that her younger sister had set herself on fire and had been admitted to hospital. She also spoke to her sister who informed about the circumstances surrounding the burn injuries. The witness also withstood cross examination. The learned Mahila Court Judge also found that the evident of PW-6, brother of the deceased was also in confirmation with the evidence of PW-1 and PW-5. PW-7 Jaffar Ali during his evidence had also confirmed about the fact that the accused had demanded loan of Rs.1/- lakh to settle his debts. http://www.judis.nic.in 8
13. On the strength of the above evidence, the learned Mahila Court Judge held that there was a demand for Rs.1/- lakh from PW-5 and PW-7 and since they had hesitated in advancing the money, the accused quarrelled with the deceased and instigated her to commit suicide. It was also stated that this evidence was in conformity with the dying declaration Ex.P7 recorded by PW-13 Judicial Magistrate No. VI, Coimbatore.
14. In order to establish that the accused was having financial debts, prosecution had also examined Achuthan Bhai, PW-10. He stated in his evidence that the accused had borrowed a sum of Rs.40,000/- and had created equitable mortgage of his property. He had also executed an agreement of sale with respect to the property. The accused did not pay the interest. He stated that on the date of the incident, the mortgage was subsisting.
15. PW-3 Dr.Viswanathan was on duty at MS-II Burn Ward, Coimbatore Medical College on 06.03.2007. He examined the accused, who suffered burn injuries over the leg and thighs which the accused stated he suffered while trying to extinguish the fire on the body of his wife. This evidence established the fact that the accused was present when the deceased set herself on fire. PW-12 http://www.judis.nic.in 9 Dr.Thirumalaisamy was on duty in MS-II Burns Ward, Coimbatore Medical College when the deceased was admitted on 06.08.2007 at 02.05 hours. He examined the deceased and sent a requisition to the Judicial Magistrate No.VI, Coimbatore, to record the dying declaration. PW-13 Ravi Shankar, Judicial Magistrate No.VI, Coimbatore, reached the ward at 6.50 a.m., and obtained Ex.P-8 certificate from PW-12 Dr.Thirumalaisamy that Pousiya Begum was conscious to give dying declaration. He then recorded the dying declaration Ex.P-9 in the presence of PW-12, Dr.Thirumalaisamy. In the dying declaration, which had been extracted above, the deceased stated that the accused quarrelled with her and asked her to go and the die and to get lost. She then asked her husband to do away with her and to kill her. She then poured kerosene over her body and set her body on fire. She stated in the dying declaration that she committed suicide because of his rude behaviour and cruel activities. The evidence of PWs-12 and 13 were relied on by the learned Mahila Court.
16. PW-2 Dr.V.S.Venkatesan stated that on 10.03.2007 when he examined Pousiya Begum in the hospital he found her dead at 07.05 hours. He intimated the death to the outpost police station. PW-4 Dr.Diraviyaraj conducted autopsy over the dead body. He gave final opinion that she died due to extensive burns sustained by her. He http://www.judis.nic.in 10 issued Ex.P-1 postmortem certificate and Ex.P-2 final opinion.
17. PW-15 Sukumari, Inspector of Police conducted inquest over the body. When Pousiya Begum was undergoing treatment, PW- 11 Mohan, Head Constable recorded Ex.P-7, statement. On the basis of the said statement, a FIR had been registered under section 498-A IPC and 309 IPC. PW-14 Praballa, Sub Inspector of Police, prepared Ex.P-5 observation mahazar in the scene of occurrence and also prepared Ex.P0-11 rough sketch. She seized MO-1 black colour can containing kerosene and MO-2 match box with stick under Ex.P-6, Recovery Mahazar. She also examined the deceased at Coimbatore Medical College and recorded her statement. The learned Mahila Court Judge held that the statements recorded by PW-14 was in conformity with Ex.P-7 statement recorded by PW-11 Mohan, Head Constable and with Ex.P-9 is the dying declaration. The evidence of PW-14 and the statements of the deceased corroborated the evidence of PWs-1, 4, 5 and 6 in all material aspects.
18. The accused had examined his own minor daughter Mofia as DW-1. She stated that she was watching TV along with the accused on 05.03.2007 at 11.30 p.m. She noticed smoke coming from the bathroom. She rushed there with the accused and they noticed the deceased burning with fire over the head. She stated that the http://www.judis.nic.in 11 accused extinguished the fire and then took her mother to the hospital for treatment. She stated that her mother suffered from fits and therefore, suffered pain and suffering and had expressed desire not to live further. The learned Mahila Court Judge however disbelieved the evidence of DW-1, who was a child studying in 6th standard on the date of occurrence. It was held that it was improbable that she would be watching TV till midnight. It was also observed that the accused did not examine any of the neighbours or even the grandmother who was also present to corroborate the version of DW-1. During cross examination DW-1 stated that she was in bed and woke up on hearing the cry of the deceased. This was in direct contradiction to what she stated in chief examination.
19. On the basis of the oral and documentary evidence as stated above, the learned Mahila Court Judge convicted and sentence the accused as stated for commission of offences under Section 498-A IPC and 306 IPC.
20. Heard arguments advanced by Ms.P.Lavanya, learned counsel for the appellant/accused and Ms.S.Thankira, learned Government Advocate (Crl. Side) for the respondent prosecution.
21. The learned counsel for the accused stated that PW-1 himself was a person with no means and was also living in a house http://www.judis.nic.in 12 which had been granted free by the Government. She therefore stated that it was highly improbable that the accused would demand dowry from the deceased when she had no resources for the same. The learned counsel also stated that it had come on evidence that the deceased suffered from fits and owing to such suffering had decided to commit suicide. It was also pointed out that the accused was under
the influence of liquor and consequently urged that the exception clause should be granted to him. The learned counsel also stated that PW-1 had not given any complaint to the local Jamath to settle the disputes between the deceased and the accused. It was stated that there were no eye witnesses to the incident and the very fact that it was the accused who took the deceased to the hospital and admitted her would show that he actually wanted to save her and did not want her to die. The learned counsel stated that the benefit of doubt should be extended to the accused and the Appeal should be allowed.
22. Ms. S.Thankira, learned Government Advocate (Crl. Side) on the other hand supported the Judgement of the trial Court and stated that the learned Mahila Court Judge had analysed the evidence thoroughly and correctly. She was emphatic that the prosecution had proved the offence beyond reasonable doubt.
23. I have carefully considered the arguments advanced and also the material records.
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24. The Accused Abudhageer had married the deceased Pousiya Begum some 12 years prior to the incident. Originally, Cr.No. 17 of 2007 had been registered for commission of offence under Section 498-A IPC and under Section 309 IPC. This was registered on the basis of the statement of Pousiya Begum when she had been admitted in hospital having suffered nearly 70% burn injuries owing to self immolation. Her statement was recorded by PW-11 Mohan, Head Constable. In the statement, she had stated that owing to continuous quarrels and mental and physical torture and on direct instigation from her husband, relating to demand of money to be obtained from her sister to settle his existing debts in the intervening night between 05.03.2007 and 06.03.2007, she had poured kerosene over herself and lit herself. Pousiya Begum died on 10.03.2007, and, as would be evident from the statement of the medical officers who examined her in hospital, owing to a direct cause of the burn injuries suffered by her. Thereafter, an alteration report was filed before the Magistrate Court and the provision of law in Cr.No. 17 of 2007 was altered from 309- IPC to 306-IPC.
25. PW-1 was the father of the deceased. He spoke about the continuous quarrels and demands made by the accused from the deceased. In his evidence, he stated as follows:-
http://www.judis.nic.in 14 “jpUkzj;jp w; F gp w F vd J kfS k; vjph pt a[k; re;njhrk hf ,Ue;jhh;/ gp d; d h; vjph pf;F kJ mU e ; J k ; gHf;fk; V w;gl;L mjdh y; vjph pf; F k; vd J kf Sf;F k; rz;il rr;rut[ V w; gl;L te;jJ/ Vjph p m of;fo gzk; nfl;L vd J kfis tPl;o w; F mD g; g[thh;/ eh d; Ko e ;j m st[ vd J kf Sf;F gzk; bfhLj;J fzth; tPl;o w; F mD g; g p a p U f;f p n w d ;/ vjph p tPL fl;oa tpjj;jpy; fld; Rik V w; gl;ljhy; vd J kf s plk; U:/5000 /- nfl;L tPl;o w; F mD g; g pitj;jhh;/ vjph p nfl;l gzk; bfh Lf;F k; msptp w;F vd;d plk; trjp nghjtpy;iy vd;gjh y; vd; kfis kP z; L k; vjph p tPl;o w; F brd; W mDr h pj;J bgh W j; J bfhz;o U vd Mny hrid Twp m D g; g pitj;njd;/ ,jw;fpilapy; vd J bg h p a kfs; Rn yfh bg s r p f h n fj;ij ghh;f;f brd; w p U e ;j n g h J vjph p jdf;F tPL fl;oatpj;jpy; fld; Vw; gl;L s s j h ft[k; tPl;o d; gj;jpuj;ij itj;Jf;bfhz;L U:gh a; 1.00.000 /- gzk; bfh Lf;f ntz;L b k d nfl;L s; s s h ;/ mjw; F gzk; bfhL g; g J rk;k e;jk hf tprhh pj;Jtpl;L Vw; g h L bra; J jUtjhf brhy;y p vd J kfs; ngh a;tpl;lhh;/ 04/03/07 m d; W g[s p a k ; gl; o a p y ; e pr;rajh h;j;jk; eilb g w ; w J/ mj w; F vjph p a[k; vd J kf s; bg s r p f ht[k; brd; w p U e ;j h h;f s;/ vjph p jd;Dld; vLj;Jr;br d; w g[fig;gl Mtzj;ij kl;Lnk vLj;Jr;br d; W mjid mth;f s pl k; fhz;g pj;J gzk; Vw; g h L bra; J jUk;go nfl;lhh;/ g[ifg;gl efiy itj;Jf;bfhz;L gzk; juKo a h J vd e pjp e p W t dj;jhh; Tw pt pl;lhh;f s;.
26. PW-5 Sulekha was the elder sister of the deceased and PW-7 Jaffar Ali was the husband of PW-5. Pw-5 in her evidence stated as follows:-
http://www.judis.nic.in 15 “vjph p kJ mU e ;jptpl;L vd J j';ifaplk; rz;il ngh Lt J tHf;fk;/ vjph p F oj;Jtpl;L rz;il ngh L k; tpguj;ij eh d; vd J j';ifia nehpy; re;jpf;F k; rka';fs p y; vd;d plk; Tw p a p U f;fp w h h ;/ vd J jhah h; ca p n u h L ,y;iy/ ,w e; J 7 Mz;Lf S f; F nky; Mfp w J/ vd J j';if Fiwfi s TW k;n g h J jhah h; ,y;yhjjhy; jdJ je;ij[ak; tajhdth; vd;gjh y; mDr h pj; J thG k; g o vd J j';iff;F m w p t[iu Twp n d d ;/ 04/03/07 m d; W vd J brh e;j Ch p y; vd J kfd; brk p d h t p w ; F jpUkz epr;rajh h;j;jk; bra;J itj;njhk;/ m e;j jpdj;jp w; F 10 e hl;f Sf; F Kd;d h; eh d; vd J bg h p a j';if Ehh;$fh D k; vd J j';if bg s r p f h n g f k; tPl;o w; F brd;w p U e ; nj h k;/ mJ rkak; M$h; vjph p a[k; tPl;oy; ,Ue;jhh;/ m g; n g h J vjph p jhd; tPL fl;oa tpjj;jpy; jdf;F U:/1.00.000 /- fld; c s; sj hft[k; flid jpUg;g p br Yj;Jtj w; F fldhf U:1.00.000 /- ntz;L b k d vd;d plk; nfl;lhh; / eh d; vd J kf Sf; F jpUkz k; itj;J s; s tptu';fis Tw p vd;d h y; bfh Lf;fK o a h J ntW ahh plk ht J tprhh pj;J TW k;g o brh d;n d d;/ gj;jpuj;ij itj;J fld; bfhLf;F k; tptuk; vdf;F bjhp a h J vd; W k; m e;j tptuj;ij vd J fztiu tprhh pj;J mjd;g p w F jfty; brh y; Ytjhf eh d; vjph p a pl k; m g;n g h J Tw p n d d ;/ 04/03/07 m d; W vjph p jdJ j';if kw; W k; FH e;ija[ld; FL k; g rfpjkhf vd J kfs; e pr;rajhh;j;jj;jpw; F te;jhhf s;/ m g;n g h J vjph p tPl;o d; mry; gj;jpuk; fld; bfhLj;jth; trk; c s; sj hft[k; jd;dplk; g[ifg;gl efy; kl;Lnk c s; sj hft[k; mijitj;J gzk; fld; jUk;g o nfl;lhh;/ g[ifg;gl efiy bfhLj;J fld; nfl;fKo a h J vd; W k;. fld; bg w; Wj;jUtJ rk;k e;jkhf 10 jpd';fSf;F gp w F jfty; bjhptp g; gjhf m d;iw aj p d k; eh d;
brh d;n d d ;/ eh d; kUj;Jtkid a p y; rpfpr;irap y p U e ; J vd J j';ifia re;jpj;J ngrp n d d ;/ vd J j';ifaplk; vg;g o el e;jJ vd; W nfl;nld;/ mjw; F vd J j';if jhd; vjph p a pl k; vd;d plk; gzk; bg w; W jUtjhf http://www.judis.nic.in 16 cj;jputhjk; m s pj; J te;jjhft[k; Mdh y; gzk; nfl;L ,y;iyb a d jpUg;g p miHj;Jt e; Jt pl;ljhft[k; jdf;F mtkh d k ; V w;gl;ljhy; vjph p vd J j';ifia xU FH e;ijia miHj;Jf;bfh z;L bg w; n w h h ; tPl;o w; F brd; Wt plntz;L b k d ; W k ; ,y;iyb a d; w h y ; brj;J bjhiy e; Jt p L vd; W brh d;djhft[k; brh d; d h h ;/ vjph p nfl;l gzj;ij vd J m g;g ht plk p U e ; J th';fp juKo a h J vd;gjhy; eh d; ,';nfna brj;Jn g h f p n w d ; vd vjph p a pl k; brh d; djhft[k; mjw; F vjph p rP b k z; b z a ; nfid vLj;Jf;bfh Lj;J vz;bz a; C w; w p bfhz;L brd;wjhft[k; mjdh y; jhd; rP b k z; b z a ; clyp y; C w; w p f; bf h z;L gw; witj;Jf;bfh z;ljhft[k; jdJ clyp y; jPg;g p oj; J vhp e ;jn g h J jz;zP h; C w; w p midj;jhft[k; vjph p jdJ clypy; ,Ue;j jPia mizg; gj w; F mtiu fl;og;g p o j;jn g h J mtu J clyp y; jPf;fha k; V w; gl;l tptuj;ij vd;d plk; brh d;d h h;;/ vd J j';if rprpr;irf;fhf kUj;jtkida p y; mD kjpf;fg;gl;lJn g h d ; W vjph p rpfpr;irf;fhf m nj kUj;Jtkid a p y ; mD kjpf;fg;gl;lhh;/ kUj;jJtkid a p y ; rpfpr;ifap y p U e ;j vd J j';if 10/3/07 m d; W rpfpr;ir gy d s p f;ffh k y; ,w e; Jt pl;lhh;/ vd J j';if 9/3/07 tiu ey;y Ki w a p y ; ngrpt e;jh h;/”
27. PW-7 also corroborated the evidence of PW-5. He stated as follows:-
4/3/07 m d; W vd J kfs p d ; epr;rajh hj;jj;jpw; F vd J tPl;o w; F vjpa[k; bg s r pf h n g f K k ; te;jpU e;jh h;f s;/ vd J tPl;o w; F te;jpU e;jn g h J tPl;L g[ifg;g gl ef y; gj;jpuj;ij bfhLj;J mriy itj;J Vw;fd nt fld; bg w; w p U g ; gj hft[k; ,ij itj;J fld; bg w; Wj;jUk;g o a[ k; nfl;lhh;/ gj;jpu e f y; g[ifg;gl efy; vd;gjh Y k ; V w;fd nt fld; bg w; w p U g ; gj h y; fld; bfh L g; g g h h ;f s h vd; W tprhh pj;J brh y;tjhf brh d;n d d;/ http://www.judis.nic.in 17
28. It had been pointed out by the learned counsel for the accused that the accused tried to extinguish the fire and as a result of which he also suffered burn injuries and that it was he who had taken the deceased to the hospital. The charge against the accused is one under Section 498-A IPC and 306 IPC. The charges under these Sections cannot be brushed away merely because the husband on seeing his wife burning tried to extinguish the fire. The charges arose since he abetted and instigated by acts of cruelty, Pousiya Begum to pour kerosene over herself and immolate herself. Whether that act was a direct result of the mental and physical cruelty inflicted by the accused and was abetted by him has to be examined by the Court. The subsequent conduct is of not much relevance in these cases since the offence charged had been committed by performing the acts of cruelty leading to incitement and abetment to commit suicide. The very fact that the deceased took that extreme step as a direct result of the acts of cruelty and abetment by the accused is sufficient to uphold conviction under Section 498-A IPC and under Section 306 IPC.
29. In the present case, the prosecution had occasion to request the Judicial Magistrate No. VI, Coimbatore, who had been examined as PW-13, to record the dying declaration of the deceased. http://www.judis.nic.in 18 In the dying declaration, the deceased had stated as follows:-
vd; fzth; jpdK k; Foj;Jtpl;L tUthh;. v';f tPl;oy;. vd; kr;rhDf;F k; brhj;J rk;k e;jk hf vd; fzth; vd;id jpl;o. vd;d plk; rz;ilg;ng h Lt h h;. Vd;id[ak; vd; FH e;ijfisa[k; tPl;il tpl;L bt s p n a nghf brh d;d h h;. Xnu rz;il. v';fhtJ ngh a p rht[ vd; w h h; e P n a vd;idf; bfhy; vd;n w d ;. mjw; F vd; fzth; e P n a rht[ vd; w h h ;. eh d; mUfp y; ,Ue;j kz;bz z; b z a; vLj;J C w; w p f; bf h z;nld;. m';nf ,Ue;j m L g; g p y ; ,Ue;j jPa p y; itj;J bfhz;nld; . vd; fzth; vd;id jpl;of;bfh z;nl ,Uf;fp w h h; vd W eh n d jP itj;Jf;bfhz;nld;.
30. A reading of the said dying declaration which had been marked as Ex.P-9 would reveal that the deceased had very categorically stated that the accused Abudhageer continuously abused and scolded her, asked her and her children to get out of the house and was continuously quarrelling with her and told her to go and die. These factors have to be kept in mind with the further fact that when she told him to kill her, he stated that she can die by herself. The statement “ vd; fzth; ePNa rhT vd;whh” has been a direct cause for the deceased to take the extreme step of pouring kerosene over herself and immolating herself, and are words instigating suicide.
31. In AIR 1992 SC 1817 Smt. Paniben Vs. State of Gujarat, the Hon'ble Supreme Court laid down the principles http://www.judis.nic.in 19 governing appreciation of a dying declaration. These have been summarised as follows:-
“i. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. Vs. The State of Madhya Pradesh (1976) 2 SCR 764)];
ii. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh Vs. Ram Sagar Yadav and Ors. [AIR 1985 SC 416) and Ramavati Devi Vs. State of Bihar (AIR 1983 SC 164)];
iii. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination.
iv. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence (See Rasheed Beg Vs. State of Madhya Pradesh (1974 (4)SCC
264)];
http://www.judis.nic.in 20 v. Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (See Kaka Singh – Vs. State of M.P. (AIR 1982 SC 1021)];
vi. A dying declaration which suffers
from infirmity cannot from the basis of
conviction. {See Ram Manorath and Ors
-Vs- State of UP. (1981 (2) SCC 654);
vii. Merely because a dying declaration
does contain the detail as to the occurrence, it is not to be rejected. {See: State of Maharashtra Vs. Kriashnamurthi Laxmipati Naidu (AIR 1981 SC 617)};
viii. Equally, merely because it is a
brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth (See: Surajdeo Oza and Ors Vs. State of Bihar (AIR 1979 SC 1505);
ix. Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-
witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail (See:
http://www.judis.nic.in 21 Nanahau Ram and Anr. V. State of Madhya Pradesh (AIR 1998 SC 912);
x. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (See: State of U.P. Vs. Madan Mohan and Ors. (AIR 1989 SC 1519).
xi. Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. {See: Mohanlal Gangaram Gehani Vs. State of Maharastra (AIR 1982 SC 839) and Mohan Lal and Ors Vs. State of Haryana (2007 (9) SCC 151)}.”
32. In the present case, PW-12 Dr.Thirumalaisamy had very categorically made an endorsement that the deceased was conscious and in a fit state of mind throughout recording of the dying declaration. PW-13 the Judicial Magistrate No.VI, Coimbatore had also personally verified her mental alertness by putting necessary questions relating to the identity and surroundings before recording the dying declaration. She was specifically informed that her statement was being recorded and she gave her consent. PW-12 Dr.Thirumalaisamy had made the following endorsement in Ex.P-9, http://www.judis.nic.in 22 the dying declaration “patient was conscious and in a fit state of mind through out recording dying declaration.”
33. It is thus seen that the deceased knew what was she saying and what was being recorded. She was conscious. When she was conscious, she stated that the continuous harassment by her husband and his incitement telling her to die were the reasons why she decided to self-immolate herself.
34. Section 498-A IPC is as follows:-
“498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a)any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or http://www.judis.nic.in 23
(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]”
35. Section 306 IPC is as follows:-
“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. ”
36. It is seen that the ingredients for offence under Section 498-A IPC are that the conduct should be of such nature, which is likely to drive the woman to commit suicide. In this case the conduct of the accused in continuously quarrelling and in telling her to go to die are themselves sufficient to drive any woman to commit suicide. Telling his wife to go and die are words which can be categorised inciting or abetting suicide, which is the ingredient essential for offence under Section 306 IPC.
http://www.judis.nic.in 24
37. In AIR 1990 SC 209 Gurbachan Singh Vs. Satpal Singh it had been held that if the facts and circumstances establish suicide and there is dowry demand, Section 306 IPC is attracted. It was held as follows: “The first thing that is necessary for proving the offence is the fact of suicide. Abetment is a separate and distinct offence provided the thing abetted is an offence. Abetment does not involve the actual commission of the crime abetted; it is a crime apart.”
38. An analysis of the evidence reveals the following facts:
(i) the accused was addicted to liquor and was also in financial difficulties;
(ii) the evidence of PW-10 proves the financial debts incurred by the accused;
(iii) The evidence of PW-5 and PW-7, which are direct in nature point out to the fact that the accused immediately required Rs.1/- lakh to pay all the existing debts. He demanded this amount to be raised by them on 04.03.2007.
http://www.judis.nic.in 25
39. In the intervening night between 05.03.2007 and 06.03.2007, since PW-5 and PW-7 expressed inability to raise the amount demanded on the basis of xerox copy of documents the accused abused his wife and asked her to go and die. She committed suicide by pouring kerosene over herself and lighting fire.
40. The dying declaration given by the deceased is admissible evidence. PW-12 Dr.Thirumalaisamy had given a certificate endorsing that she was in a fit state of mind to give the dying declaration and that during the recording of the dying declaration, she was conscious. In the dying declaration, she specifically stated that because of cruelty and because of instigation and abetment, she committed suicide. The ingredients of both Sections 498-A IPC and Section 306 IPC are satisfied.
41. In view of the said facts, I have no hesitation in upholding the conviction of the accused for offence both under Section 498-A IPC and under Section 306 IPC.
42. I Uphold the sentence imposed for commission of offence under Section 498-A IPC. However, with respect to the http://www.judis.nic.in 26 sentence imposed for commission of offence under Section 306 IPC, I hold that the fact that the accused tried to extinguish the fire, suffered burn injuries and admitted the deceased in hospital are mitigating factors to be considered. Consequently, I hold that sentence of 3 years rigorous imprisonment and fine of Rs.1000/- in default 1 year simple imprisonment would meet the ends of justice.
43. In view of the above reasons, I hold that there are no merits in the Appeal and the same is therefore dismissed. The conviction under Section 498-A IPC and under Section 306 IPC are confirmed. The sentence of 3 years rigorous imprisonment and fine of Rs.1000/- in default 1 year simple imprisonment for offence under Section 498-A IPC is confirmed. The sentence of 10 years rigorous imprisonment for offence under Section 306 IPC alone is modified to 3 years rigorous imprisonment. The finE amount of Rs.1000/- and default clause of 1 year simple imprisonment is confirmed for offence under Section 306 IPC. Both sentences are to run concurrently. The Trial Court is directed to take the accused into custody and remand him forthwith to serve the remaining part of the sentence.
vsg 27.04.2019
Index: Yes/No
Internet: Yes/No
Speaking / Non Speaking Order
http://www.judis.nic.in
27
C.V.KARTHIKEYAN, J.,
vsg
To
1. Sessions Judge, Mahila Court, Court of the Sessions of the Coimbatore Division.
2. Inspector of Police All Women Police Station (West) Coimbatore.
Pre-delivery Judgement made in CRL.A.No.244 of 2009 27.04.2019 http://www.judis.nic.in