Madras High Court
Irusagounder vs State on 23 February, 2012
Author: S.Palanivelu
Bench: S.Palanivelu
In the High Court of Judicature at Madras Dated : 23.02.2012 Coram:- The Hon'ble Mr. Justice S.Palanivelu Crl.A.Nos.622 & 667 of 2006 1. Irusagounder ... Appellant in Crl.A.No.622 of 2006 2. Mrs.Kamalam ... Appellant in Crl.A.No.667 of 2006 Vs. State, rep., by Deputy Superintendent of Police, Sankagiri, Magundanchavadi Police Station, Salem District. Crime No.131 of 2004. ... Respondent in both the Appeals Crl.A.Nos.622 of 2006 The Criminal Appeal, filed under Section 374 (2) of the Criminal Procedure Code, to set aside the conviction and sentence, imposed in judgment, dated, 29.06.2006, passed in S.C.No.274 of 2005, on the file of the First Additional District Court Salem/Sessions Judge Full Additional Charge/ Mahila Court, Salem. Crl.A.Nos.667 of 2006:- The Criminal Appeal, filed under Section 374 (2) of Criminal Procedure Code, to set aside the conviction and sentence, imposed in judgment, dated, 29.06.2006, passed in S.C.No.274 of 2005, on the file of the Sessions Judge of Mahila Court, Salem. For Appellant No.1 : Mr.N.Manokaran For Appellant No.2 : Mr.K.Nagarajan For Respondent : Mr.C.Balasubramanian Addl.Public.Pleader COMMON JUDGMENT
The accused Nos.1 and 2 in S.C.No.274 of 2005, are the appellants herein. They have come forward with these Appeals, against the judgment dated 29.06.2006, passed in S.C.No.274 of 2005, on the file of the First Additional District Court Salem/Sessions Judge Full Additional Charge/ Mahila Court, Salem.
2. The first accused in Crl.A.No.622 of 2006, was convicted for offence under Section 498-A of I.P.C., and was sentenced to undergo one year rigorous imprisonment, with a fine of Rs.500/- , in default, to undergo three months rigorous imprisonment and also convicted for offence under Section 306 of IPC and was sentenced to undergo seven years rigorous imprisonment, with a fine of Rs.500/-, in default, to undergo rigorous imprisonment for three months.
3. The second accused in Crl.A.No.667 of 2006, was convicted for offence under Section 306 of IPC and was sentenced to undergo five years rigorous imprisonment, with a fine of Rs.500/-, in default, to undergo rigorous imprisonment for three months.
4. The sentences were also suspended and the appellants were released on bail, pending disposal of the appeal, on each of them executing a bond for a sum of Rs.5,000/- with two sureties, each for a like sum to the satisfaction of the learned Judicial Magistrate, No.2, Sankari, and the learned Sessions Judge, Mahila Court, Salem, respectively.
5. The brief account of the prosecution case may be summarized as follows:-
i) P.W.1, is the brother of the deceased Banumathi and P.Ws.2 and 3, are their parents.
ii) P.W.1 lodged a complaint-Ex.P.1, stating that his sister, by name Banumathi, was married to the first accused, about six years back and they have got two children. At the time of his sister's marriage, her parents have given 6 = sovereigns of gold jewels and a sum of Rs.60,000/-, in cash and also household articles, as shreedhana, worth about Rs.30,000/-. The deceased Banumathi, used to say for about three months, she was subjected to harassment by her husband and she also frequently visited her mother's house, after picking up quarrel with the first accused and thereafter, they used to settle the dispute between spouses and send the deceased Banumathi and her children to the house of the first accused. The deceased Banumathi, also told that, her husband/first accused, was having illicit intimacy with one Kamalam/second accused. On 24.03.2004, at about 9.00 a.m, the father of the first accused has informed P.W.1's family, over phone that Banumathi and her children died. On hearing the said news, they went to the house of the first accused and found that the said Banumathi and her children dead and there is no doubt in the occurrence. It is also stated that one Mahesh and his co-brother, who are the Financiers, well known in collecting usurious interest were also cause for the death.
iii)P.W.9-Sub Inspector of Police, received a complaint on 24.09.2004, at 9.30 a.m., and registered a case under Section 174 of Cr.P.C., and lodged FIR-Ex.P.12, and sent the same to the Court and its copies to P.W.10, the Revenue Divisional Officer ( for short 'R.D.O.') and to other Superior Officers.
iv)The R.D.O, on receipt of the FIR, proceeded to the scene of occurrence, conducted an inquest over the dead bodies and prepared inquest reports-Exs.P.13, P.19 and P.20. He examined the witnesses and the statements recorded by him from P.Ws.1 to 3, were marked as Exs.P.17, 15 and 16. He sent the dead bodies to the Salem Government Medical Hospital for autopsy. The Doctor-P.W5, attached to the said Hospital, conducted autopsy over the dead bodies and issued Exs.P.2, P.4 and P.6. He sent viscera for the Toxicological examination and in the toxicology report-Ex.P.7, it is stated that, neither alcohol, nor, any poisonous substance were detected in any of the internal organs of the deceased. On perusal of the said opinion, the Doctor opined that the deceased had died, due to asphyxia, on account of hanging and death would have occurred between 24 to 36 hours, prior to autopsy. Even in Ex.P.14, the R.D.O's report, R.D.O. has given his opinion that it is known from the statements given by the witnesses that due to illicit intimacy, which the first accused was having with the second accused and due to the mental torture and anxiety, the deceased-Banumathi, committed suicide, by hanging along with her children and there was no dowry demand.
v) P.W.11-Deputy Superintendent of Police, after receiving the FIR, went to the scene of occurrence, prepared an Observation Mahazar-Ex.P.8 and arranged a Lens Man to take photographs in the scene of occurrence. He recovered yellow colour nylon coir in the house of the deceased, which was used by her for the purpose of committing suicide by hanging, in the presence of witnesses. In the course of investigation, on 25.3.2004, he went to Magudanchavadi Bus Stand and arrested both the accused, recorded their confession statements in the presence of Village Administrative Officer, by name Mr.Chandrasekaran and one Mr.Seghozhan. He also altered Section 174 Cr.P.C. into Sections 306 and 304-B of I.P.C. and sent the said alteration report-Ex.P.22, to the Judicial Magistrate, Sankari. He examined the Doctor and others and on completion of investigation, he laid a charge sheet under Sections 498-A, 306, 304-B of I.P.C.
6. After prosecution evidence were over, both the accused were questioned under Section 313 of Cr.P.C., with regard to the incriminating materials, available against them in the prosecution evidence.
7. The accused denied complicity to the offence. They neither examined any witness nor, marked any documents.
8. The first accused filed a written statement under Section 313 of Cr.P.C., wherein, he has stated that there was no valid marriage took place between him and the deceased, that, since the first child born to them happened to be a female child, the friends of the deceased Banumathi, felt that she had to have a male child for her sake and hence, they prayed their family deity, that if she gave birth to a male child, they would offer coins, equal to the weight of the male child and that vow was proposed to be fulfilled, during the month of Panguni. Regarding the said prayer, there seems to be some difference of opinion between the deceased Banumathi and her parents and hence, she suffered mental agony. The Financiers, who used to charge usurious interest, tendered certain amounts to the parents of deceased Banumathi, through A1 and that, they did not discharge the said loan amount. Since the Financiers, did not receive the money back, they used to come to the house very often and abused the deceased Banumathi, hurling mean and obscene language, which might also be a reason, for the occurrence of the death. He therefore, stated that he has no illegal association with any woman. Thus, the first accused has stated in the written statement that the deceased Banumathi, could have committed suicide, because of the difference of opinion she had with her parents and also the humiliation, purported to have been caused by the Financiers and the alleged illegal intimacy is not the reason for the said occurrence. Even in the FIR, there was no allegation against the first accused with regard to dowry harassment. It is also stated that the conduct of Financiers might also be a reason for her death. Hence, the case has been falsely foisted against him.
9. After analyzing the materials available on record, the Trial Court has convicted the accused and passed sentence, as stated above. Feeling aggrieved, by the judgment of conviction and sentence, the appellants have preferred the present Criminal Appeals.
10. The point for consideration in these appeals is that, "Whether the charges framed against the appellants, have been established by the prosecution, beyond all reasonable doubt? "
Point :-
11. Mr.N.Manoharan, the learned counsel appearing for the appellant/accused No.1, in Crl.A.No.622 of 2006, would contend that there is no clinching evidence to prove that the first appellant was having illegal intimacy with one Kamalam, viz., the second accused, that, only hearsay evidence are available on record, that P.W.9, who received the complaint from P.W.1, has stated that only at 5.30 p.m. on 24.3.2004, he registered the case and if so, how the police came to the house of the deceased at 9.30 p.m. and proceeded with the investigation and took both the accused to police custody by 10.30 a.m itself. The evidence of P.W.9, also shows that there was another complaint received from P.W.1, that the Financiers were also reason for the occurrence of death and why they have been let scot free. Even though, P.W.6, has deposed in favour of the accused, he was not treated as hostile witness by the prosecution, that the investigation in this regard by the Police is not in accordance with the settled procedure, since the Investigator did not alter the case into one under Sections 306 and 304 (B) of I.P.C., on the strength of the opinion, rendered by R.D.O., and when the R.D.O. came out with his opinion as regards the occurrence, the Investigator should have altered the case into the aforementioned Sections, which is not sustainable. That apart, as per Section 117 of I.P.C., instigation and the aiding could not be ascertained on the part of the accused and hence, there is no abetment on his part, and that, prosecution witnesses have deposed on surmises and conjectures, that, the charges under Section 498-A, and 306 of I.P.C,. have not been established beyond reasonable doubt against the appellant/accused No.1, he further added.
12. Mr.K.Nagarajan, the learned counsel appearing on behalf of the appellant/second accused in Crl.A.N.667 of 2006, would contend that it is in the evidence that the second accused is 55 years old and the first accused is 25 years old and hence, illegal intimacy, could not be comprehended between them, that, there is no direct evidence to implicate the second accused with the crime and the evidence on record would clearly show that the Financiers, used to come to the house of the deceased and abuse the deceased with disgraceful language, very often and as she could not tolerate the humiliation, she committed suicide, along with her children and there is no element of intention, much less, mala fide intention on the part of the second accused to instigate the deceased to commit suicide and that, she did not have any illegal intimacy with the first accused.
13. Mr.C.Balasubramanian, the learned Additional Public Prosecutor for the respondent would submit that the evidence of the prosecution witnesses, more particularly, P.W.s. 1 to 3, would indicate the culpability of the accused that, even though, they are close relatives of the deceased, their evidence could be pressed into service, that the Investigating Officer has assigned proper explanation in the cross-examination to the effect that since no witness has stated against the proposed A3 and A4, the Financiers, they were not included as accused, that the Court below has rightly convicted and sentenced the accused and there is neither perversity, nor, any illegality could be found in the judgment rendered by the Court below and that, the prosecution has brought home the guilt of the accused, beyond all reasonable doubt.
14. In the report of the R.D.O, he appears to have stated from the statements of witnesses, that, it comes to light that the reason for the suicide is due to the illicit intimacy of the deceased's husband with other lady and that there is no dowry harassment.
15. P.W.1, the brother of the deceased has narrated the events, which took place earlier to the occurrence. The gist and kernel of his evidence is that, they have given 6 = sovereigns of gold and a sum of Rs.60,000/-, as cash, at the time of marriage, that, the second accused was kept as concubine by the first accused and was also asked the deceased to cater to the needs of the second accused, that, 10 days prior to the incident, deceased Banumathi, came to her mother's house and told her that her husband demanded dowry for the purpose of giving it to the second accused, that, for time being, the dispute was settled and that, dowry harassment and the above said illicit intimacy between both the accused were the reasons for the occurrence. In the cross-examination, P.W.1 admitted that they had a prayer before the Family Deity, that in case of the deceased Banumathi, giving birth to a male child, they would offer coins, tantamount to the weight of the male child. It transpires from his evidence that the second accused was taken directly to the house of the first accused and she was also staying then and there. He has also stated that he personally knew the fact that both the first and second accused and his sister were living together, under one roof. Of course, he has not stated the above said matters in the complaint lodged by him, initially, but, when he was examined by R.D.O, on 24.03.2004, at the time of inquest, he has clearly stated that the deceased had already informed her parents that, since the first accused is having illicit intimacy with the second accused, there were frequent quarrels between the spouses. The oral evidence of P.Ws1 and 2, are in the same lines. They have also stated about the illegal intimacy between the first and the second accused before the R.D.O.
16. One Nallammal, the mother of the first accused, who was examined by R.D.O., has stated that she came to know that her son was having illicit intimacy with another lady and she also reprimanded him and on hearing information, she came to the scene of crime. The said Nallammal also stated before the Investigating Officer that for about 2 years, her son, viz., the first accused was having illicit intimacy with the second accused and she hauled him up. The said Nallammal was examined before the Court, as P.W.5. But, as she has not stated anything about the illegal intimacy between the accused, she was treated as hostile witness and examined in cross by the prosecution. Thus, on perusal of the statements from the witnesses, R.D.O., has came to the above said conclusion.
17. The Investigating Officer has also came to a conclusion on scrutiny of the statements given by the witnesses that illicit intimacy between the accused was the reason for Banumathi's death.
18. The report of the R.D.O., and the report submitted by the Investigating Officer, would amply prove that illicit intimacy between the first and second accused was true, which resulted in the death of Banumathi and her children.
19. The Investigation Officer also has stated that the second accused was found tied in the house of the deceased, after the occurrence and the Trial Court has referred to this situation and also observed that, unless, the second accused has got connection with the first accused, she would not have been brought to the house of the first accused. But, this Court is of the view that this circumstance cannot be unfavorable to the accused.
20. As far as the allegation that there was a misunderstanding between the deceased and her parents is concerned, it is in the evidence of P.W.1, that it is false to state that the first accused borrowed a sum of Rs.20,000/- from the Financiers and because of non-payment, they came to the house and abused the deceased. P.W.2, would say that it is not correct to state that he turned down the request of the deceased to offer coins to the Temple and she has asked the deceased Banumathi to bring the money from the first accused. He also denies that the daughter came to the house and picked up a quarrel with them for not making the payment. He also says that they borrowed a sum of Rs.20,000/- from the Financiers, through the first accused and they repaid it and because, other persons, who got loan from the first accused did not pay the amount to the Financiers, they came to the house of the deceased and abused her. P.W.3, also says that the amount, which was borrowed from the Financiers was already repaid to them. P.W.6, would say that because the borrowed sum of Rs.20,000/- was not paid back by the first accused, the Financiers have came to the house of the deceased and blamed the first accused and his family members with filthy language and due to this, and also due to inability to fulfil the vow to be offered to the Family deity , Banumathi committed suicide.
21. Yet another contention raised by the learned counsel for the first accused is that the investigation was not conducted in a proper manner, since the alteration report was not sent by the Investigator on the basis of the RDO's opinion. In the like cases, it is desirable for the police to proceed further with an opinion rendered by R.D.O. But, in the present case on hand, before the Trial Court, the charge under Section 304(B) I.P.C. is not proved. The final opinion of the R.D.O., is to the effect that the deceased died due to illicit intimacy between the first accused and the second accused.
22. Therefore, the considered view of the Court, at the most, can be described that no illegality nor perversity is seen on the side of the prosecution case and these situations are not unfavorable to the prosecution.
23. With reference to the evidence adduced by P.W.9, it is seen that the complaint was laid by P.W.1, at 9.30 a.m., and the F.I.R., was lodged at 11.a.m., whereas, in the FIR, it is stated that the occurrence took place at 9.30 a.m. and the receipt of information by the Police Station is at 11.00 a.m. Hence, the evidence given by P.W.9, the Sub Inspector of Police that he registered the case at 5.30 p.m. may be a slip of tongue.
24. The learned counsel for the first accused also contended that, to attract ingredients of 107 of I.P.C., no element of abetment could be inferred on the part of the accused. Section 107 of I.P.C, reads as follows:-
In order to prove abetment of a crime, instigation or aid or the illegal intention has to be established by the prosecution.
25. In support of this contention, the learned counsel placed reliance on the judgment of the Hon'ble Supreme Court, reported in 2010 1 S.C.C. 750 in the case of ( Gangula Mohan Reddy Vs. State of Andhra Pradesh) wherein, the Hon'ble Supreme Court has dealt with the term "Abetment" and proceeded to observe as follows:-
" Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 of I.PC., there has to be a clear mens rea to commit the offence. It also requires an active act or direct act , which lead the deceased to commit suicide, seeing no option and this act must have been intended to push the deceased into such a position that she committed suicide."
26. The same proposition has been reiterated by the Hon'ble Supreme Court, in another judgment reported in 2010 12 S.C. 190 in the case of (S.S.Chheena Vs. Vijay Kumar Mahajan and another).
27. This Court has perused the evidence available on record with due attention and care and is able to find that there was illicit intimacy between the first and second accused, which had led to love lost between the spouses, as stated by P.Ws.1 to 3 and even by the mother of the first accused. Merely because, P.Ws.1 to 3, are close relatives, there evidence cannot be discarded. The Court has to see the truth available in the evidence.
28. In this context, this Court is of the considered view that the charge against the first accused under Sections 498 -A and 306 of I.P.C., and the charge against the second accused under Section 306 of I.P.C., have been established beyond reasonable doubt and the point is answered in the affirmative accordingly.
29. Adverting to the quantum of sentence imposed by the Court below, it appears to be on the higher side. It is stated that the first accused, after the occurrence married again and has got two children, first child being 6 years old and second child 4 years old and the second accused is a sexagenarian and she is suffering from age related ailments and hence, this Court, is of the opinion that imposing of two years rigorous imprisonment on each of the accused will be just and proper, which would meet the ends of justice.
30. In fine, the Criminal Appeals are partly allowed, confirming the conviction under Section 498-A and 306 of I.P.C., against the first accused and conviction under Section 306 of I.P.C. on the second accused. Insofar as sentence is concerned, it is reduced to two years of rigorous imprisonment. The first accused shall undergo two years of rigorous imprisonment for the offences under Section 306 of IPC and the second accused shall undergo two years of rigorous imprisonment for the offence u/s.306 of IPC. The sentence of one year rigorous imprisonment on first accused under Section 491-A I.P.C., is confirmed. Both sentences on him shall run concurrently. Imposition of fine is confirmed. The period already undergone by the accused shall be set off.
31.It is reported that the accused are on bail. Accordingly, the Superintendent of the Prison concerned, is directed to secure the presence of the accused in jail in order to undergo the remaining period of sentence.
sd To
1. The First Additional District Court, Salem /Sessions Judge Full Additional Charge / Mahila Court, Salem.
2. The Deputy Superintendent of Police, Sankagiri, Magundanchavadi Police Station, Salem District.
3. The Public Prosecutor High Court, Madras