Andhra Pradesh High Court - Amravati
Criminal Procedure vs Unknown on 27 December, 2022
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.460 OF 2009
JUDGMENT:
This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, „the Cr.P.C‟), is filed by the appellant, who was the accused in Sessions Case No.254 of 2007, on the file of the Court of Special Sessions Judge, for trial of SCs & STs (POA) Act, 1989 cases, Anantapur (for short, „the learned Special Sessions Judge‟), where under the learned Special Sessions Judge by virtue of the judgment therein, dated 31.03.2009, convicted the appellant under Section 235(2) Cr.P.C and after questioning and hearing him about the quantum of sentence, sentenced him to suffer Rigorous Imprisonment for a period of five years and to pay a fine of Rs.500/- in default to suffer Simple Imprisonment for six months for the offence under Section 354 of the Indian Penal Code, 1860 (for short, „the IPC‟) and further sentenced him to suffer Rigorous Imprisonment for a period of five years and to pay a fine of Rs.1,000/- in default to suffer Simple Imprisonment for one year for the offence under Section 306 IPC. By the same judgment, the learned Special Sessions Judge, acquitted the appellant under Section 235(1) Cr.P.C for the charges under Sections 3(1)(xi) and 3(2)(v) of the 2 AVRB,J Crl.A. No.460/2009 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, „the SC & ST Act‟).
2. Challenging the aforesaid conviction, the unsuccessful accused therein filed the present Criminal Appeal.
3. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience.
4. The case of the prosecution, in brief, according to the averments in the charge sheet, filed before the learned Magistrate, is as follows:
On 09.04.2006 at about 10:00 AM, accused trespassed into the house of Madiga Voggannagari Gangarathnamma (hereinafter will be called as „the deceased‟) situated at Peddagutlapalli Village and made an attempt to commit rape on her. The deceased unable to bear the shame, on 11.04.2006 at about 10:00 PM poured kerosene on her body and set her ablaze. On 12.04.2006, while undergoing treatment in Government Hospital, Kadiri, she succumbed to burn injuries. LW.13, the SI of Police recorded the statement of the deceased and originally registered it as Crime No.21 of 2006 for the offences under Sections 451, 376 R/w.511, 3 AVRB,J Crl.A. No.460/2009 306 IPC and Sections 3(xi) and 3(2)(v) of the SCs & STs Act. On being authorized by the Superintendent of Police, LW.14 - K. Subramanyam took up further investigation. He held inquest over the dead body of the deceased and sent the same for post-mortem examination. He examined other witnesses and inspected the scene of offence. On 28.04.2006 at 08:30 AM, he arrested the accused and sent him for remand. LW.12 - B.V.Ramakrishnaiah conducted post-mortem examination over the dead body of the deceased and opined that she died of burn injuries. Hence, the charge sheet.
5. The learned Magistrate, Kadiri took cognizance of the case and numbered it as PRC No.51 of 2006 under Sections 376 R/w.511, 354 and 306 IPC and under Sections 3(1)(xi) and 3(2)(v) of the SCs and STs Act and after appearance of the accused and completing formalities under Section 207 Cr.P.C, committed the case to the Court of Session, Sessions Division, Anantapur, who in turn numbered it as S.C. No.254 of 2007, made over to the Court of learned Special Sessions Judge.
6. On appearance of the accused before the learned Special Sessions Judge, Anantapur and after following the procedure under Section 228 Cr.P.C, charges under Sections 376 R/w.511, 4 AVRB,J Crl.A. No.460/2009 354 and 306 IPC and under Sections 3(1)(xi) and 3(2)(v) of the SCs and STs Act were framed, for which the accused denied the offences, pleaded not guilty and claimed to be tried.
7. During the course of trial, on behalf of the prosecution, PWs.1 to 10 were examined and Exs.P-1 to P-16 and MOs.1 to 3 were marked. During the cross-examination of PWs.1 and 3, Exs.D-1 and D-2 were marked respectively.
8. The accused was subjected to 313 Cr.P.C examination after closure of the prosecution evidence, for which he denied the incriminating circumstances appearing against him, and reported no defence evidence.
9. The learned Special Sessions Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the accused guilty of the charges under Sections 354 and 306 IPC, and convicted him under Section 235(2) Cr.P.C and after questioning and hearing him about the quantum of sentence, sentenced him as above.
10. Being aggrieved of the same, the un-successful accused filed the present Criminal Appeal.
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11. Now, in deciding this Criminal Appeal, the points that arise for consideration are:
1) whether the prosecution, before the Court below proved that on 09.04.2006 at 10:00 AM accused had trespassed into the house of the deceased, outraged her modesty by using force and unable to bear the shame and on account of the act of the accused, whether the deceased committed suicide on 11.04.2006 at 10:00 PM by pouring kerosene on her body and set her ablaze?
2) Whether the prosecution has proved the offences under Sections 354 and 306 IPC against the accused beyond reasonable doubt?
3) Whether the findings of the learned Special Sessions Judge in upholding the case of the prosecution under Sections 354 and 306 IPC are tenable under law and facts and whether there are any grounds to interfere with the judgment of the trial Court?
12. Sri K. Maheswara Rao, learned counsel for the appellant/accused, would contend that PWs.1 to 4 are not the witnesses to the occurrence with regard to the allegations of 6 AVRB,J Crl.A. No.460/2009 attempt to commit rape and their evidence is hearsay in nature and PW.5 was a planted witness and that due to political rivalry in the village, accused is falsely implicated in the case. Ex.P-9 cannot be taken as a dying declaration, which was a fabricated document. The allegations of the prosecution at best would attract Section 354 IPC, if the evidence is believable, and the allegations would not attract Section 306 IPC. The alleged offence under Section 354 IPC was on 09.04.2006 and the alleged offence under Section 306 IPC was after two and half days as such it cannot be held that the accused abetted the commission of suicide. At any rate, the judgment of the trial Court is not sustainable under law as such it is liable to be interfered with.
13. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, would support the judgment of the learned Special Sessions Judge on the ground that Ex.P-9 was a dying declaration and there was no possibility for its fabrication and PW.5, being direct witness, supported the case of the prosecution and PWs.1 to 3 are the kith and kin of the deceased, who came to know about the offence under Section 354 IPC after their returning to the house and the learned Special Sessions Judge delivered the judgment in accordance with law with proper 7 AVRB,J Crl.A. No.460/2009 reasons as such there are no grounds to interfere with the said judgment.
14. POINT Nos.1 to 3: to bring home the guilt of the accused, the prosecution examined as many as 10 witnesses. PW.1 is the father of the deceased. PW.2 is the brother of the deceased. PW.3 is the son-in-law of PW.1. PWs.4 and 5 are eye witnesses to the incident. PW.6 is the inquest panchayatdar for conducting inquest over the dead body of the deceased. PW.7 is the Medical Officer, who conducted post-mortem over the dead body and issued postmortem certificate, apart from final opinion as to the cause of the death of the deceased. PW.8 is the Investigating Officer, who recorded the statement of the victim, while she was undergoing treatment at the Government Hospital, Kadiri. PW.9 is the main Investigating Officer and Sub-Divisional Police Officer, Kadiri, who was authorized to investigate the case. PW.10 is the person who registered a case basing on the statement of the deceased.
15. The case of the prosecution unfolds two episodes; one is that on 09.04.2006 at 10:00 AM, accused trespassed into the house of the deceased and outraged her modesty by using force. It is altogether a different aspect that the case of the prosecution in this regard is that accused attempted to commit rape on the 8 AVRB,J Crl.A. No.460/2009 deceased but it is a finding of the trial Court that prosecution is able to prove only the offence under Section 354 IPC in this regard. Another incidence is that unable to bear the humility in the hands of the accused i.e., making attempt to commit rape or assaulting the deceased with criminal force to outrage her modesty, deceased committed suicide on 11.04.2006 at 10:00 PM by pouring kerosene on her body and set her ablaze. So, the prosecution before the Court below alleged two instances against the accused as above. It is an Appeal against conviction and the trial Court found guilty of the appellant under Sections 354 and 306 IPC, convicted and sentenced him as above. So, it is the duty of this Court to re-appreciate the entire evidence on record and decide as to whether the prosecution before the Court below proved the offences for which accused was found guilty, convicted and sentenced as above. Here, this Court would like to look into three aspects while deciding this Appeal, in the light of the points framed for determination as above. One is that whether the deceased committed suicide on 11.04.2006 at 10:00 PM, another is that whether the accused on 09.04.2006 at 10:00 AM outraged the modesty of the deceased by using criminal force, third one is that whether the accused can be held responsible in terms of 9 AVRB,J Crl.A. No.460/2009 abetment for commission of suicide by the deceased on 11.04.2006 at 10:00 PM.
16. Now, I would like to deal with the first aspect in this regard. Turning to the evidence of PW.1, who is no other than father of the deceased, his evidence in substance is that he is father of the deceased i.e., Gangarathnamma. They belonged to Harijana community. Gangarathnamma was his unmarried daughter. She died about two years ago. She poured kerosene on herself and set her ablaze in their house at about 10:00 PM. By then, he and other inmates in the house were sleeping outside the main house. On hearing the cries of Gangarathnamma with burns, they rushed into the house and shifted her to Government Hospital, Kadiri, where she died while undergoing treatment.
17. PW.2, the elder brother of the deceased, in this regard supported the evidence of PW.1. His evidence is also to the effect that they were sleeping outside the house when the deceased poured kerosene on herself and set her ablaze. The deceased was running unable to bear the pains of burns. They made an attempt to put off the flames with blanket. They shifted the Gangarathnamma to the Hospital on the next day since there were no buses during the late night. They brought Gangarathnamma to 10 AVRB,J Crl.A. No.460/2009 ODC Police Station, where the police advised to take Gangarathnamma to Kadiri for better treatment. She died while undergoing treatment at Kadiri Hospital.
18. PW.3 is the son-in-law of PW.1. The deceased is the sister of his wife. She died about two years ago by pouring kerosene on her body and setting ablaze. By then they were sleeping outside the house. At 10:00 PM they heard the cries of Gangarathnamma with flames on her body. She came out running out of the house. They woke up and put off the flames. Even he received injuries on the left foot in that process. As there was no transport facility to the Hospital during night, on the next day, they took her to ODC and from there to Kadiri. She succumbed to injuries while undergoing treatment.
19. PW.5 has spoken to the fact that Gangarathnamma poured kerosene on herself and set fire. For want of transport facility, they could take her to the Hospital on the next day. Later, he learnt that she died.
20. PW.6, the inquest panchayatdar, spoken about the fact that he was one of the inquest panchayatdars. Police conducted 11 AVRB,J Crl.A. No.460/2009 inquest over the dead body of the deceased. Ex.P-2 is the inquest panchanama in this regard.
21. As seen from the evidence of PW.7, the Civil Assistant Surgeon, he spoken to the fact that on 13.04.2006 at 12:10 PM, he conducted post-mortem examination over the dead body of Gangarathnamma in the mortuary room of Government Area Hospital, Kadiri and according to him the death was occurred in the hospital on 12.04.2006 at 01:00 PM. He reserved his opinion pending. After receipt of chemical analysis report, he opined that she appears to have died of extensive burns leading to hypovolemic shock. He issued Ex.P-3 post-mortem report. Ex.P-4 is the FSL report and Ex.P-5 is his final opinion.
22. As seen from the cross-examination part of PWs.1, 2 and 3, there is no dispute about the fact that the deceased poured kerosene on her body and set ablaze. So, to prove the fact that death of the deceased was suicidal one, there is oral testimony of PWs.1 to 3, 5 and 6. Further, there is medical evidence of PW.7 and there is also documentary evidence as regards Ex.P-3 post- mortem report, Ex.P-4 FSL report and Ex.P-5 final opinion. Even the defence of the accused is also that deceased committed suicide by pouring kerosene on herself. So, throughout the trial, the cause 12 AVRB,J Crl.A. No.460/2009 of death of the deceased with regard to receipt of burn injuries and consequent death is not at all in dispute. So, the prosecution was able to place cogent evidence before the Court below to prove the fact that the deceased poured kerosene during night on 11.04.2006 at 10:00 PM and set ablaze her as such on the next day, she succumbed to injuries.
23. Now, this Court would like to see as to whether the prosecution was able to prove before the Court below that on the date of incident at 10:00 AM, accused trespassed into the house of deceased and committed the offence of outraging her modesty by using criminal force as held by the Court below. Among the witnesses that were examined by the prosecution i.e., PWs.1 to 5, PW.4 turned hostile to the case of the prosecution. He did not support the case of the prosecution. His evidence in substance is that he knows the deceased Gangarathnamma. She died by setting fire to herself about two years ago. After attending a meeting arranged by RDT people, he returned to the house at 11:00 AM. He came to know that Vadde Muniswamy caught hold the hand of the deceased Gangarathnamma. He does not know the other facts. Prosecution cross-examined PW.4, after getting declaration that he turned hostile. During cross-examination, he denied that he stated 13 AVRB,J Crl.A. No.460/2009 before Police as in Ex.P-1 as if he witnessed the incident of the deceased setting fire to her. So, the evidence of PW.4 is not material to be discussed herein. Now this Court has to look into the evidence of PWs.1, 3 and 5 in this regard.
24. Now, turning to the testimony of PW.1, he deposed that their family members went to attend a meeting conducted by RDT on 09.04.2006. Gangarathnamma was alone in the house. Accused trespassed into the house and taking advantage of loneliness of Gangarathnamma , he committed rape on Gangarathnamma. He came to know about the incident through one Narasimhulu.
25. Turning to the evidence of PW.2, who is the elder brother of the deceased, he deposed that accused trespassed into the house and attempted to commit rape on Gangarathnamma. The incident of attempt to commit rape occurred one day prior to the deceased pouring kerosene on her. They all went to attend meeting conducted by RDT people leaving Gangarathnamma alone in the house. They returned at 06:30 PM. Then, Gangarathnamma narrated the incident of accused attempting to commit rape on her. After they returned to the house, they advised her to not to reveal the incident to others as she was un-married. 14
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26. Coming to the evidence of PW.3, who is brother-in-law of the deceased, he deposed that they went to the meeting arranged by RDT people on the eve of house warming ceremonies of newly built houses of RDT. Gangarathnamma did not accompany them and she was in the house alone. They returned at about 11:00 or 12:00 noon to the house after completion of the meeting. Then, Gangarathnamma informed to them that the accused trespassed into the house, attempted to commit rape on her and when she raised cries, one Narasimhulu (LW.8) heard the cries and came to her rescue and on noticing him, accused fled away.
27. Coming to the evidence of PW.5, Narasimhulu, who claimed to be a direct witness to the occurrence, he deposed that he did not attend RDT meeting ad remained in the house itself. When he heard cries of Gangarathnamma, he rushed to the house of Gangarathnamma. The neighbourers numbering six also rushed to the house of Gangarathnamma. Then he found Gangarathnamma lying on the ground. He also saw the accused pressing Gangarathnamma, while she fell down. On observing them, the accused ran away.
28. During the cross-examination, PW.1, father of the deceased, denied the defence theory that accused never trespassed into the 15 AVRB,J Crl.A. No.460/2009 house and never committed rape and at the instance of one Chenna Krishna Reddy and others, they implicated the accused. PW.2, during the cross-examination, denied that the deceased committed suicide as he and Bayappa chastised her performing chinnamma kathalu in the village and he also beat her, as such she committed suicide. He also denied the defence theory that at the instance of one Chenna Krishna Reddy, who is inimical with the brother of the accused, accused is implicated falsely. Coming to the cross-examination part of PW.3, he denied that accused never trespassed into the house of the deceased, attempted to commit rape on her and that he is deposing false. Turning to the testimony of PW.5, who is no other than the direct witness, he denied the defence theory in the cross-examination.
29. It is important to make a mention here that, according to the case of the prosecution, the incident of suicide was occurred on 11.04.2006 at 10:00 PM. As it was late night, Gangarathnamma could not be taken to the Hospital. On the next day she was taken to the Hospital. The case of the prosecution is also that on receiving the Medico Legal Intimation from Kadiri Hospital, the concerned Police Officer rushed to the Hospital and recorded the statement from the deceased i.e., Ex.P-9 and the said 16 AVRB,J Crl.A. No.460/2009 statement was recorded in the presence of PW.7 Dr. B.V.Ramakrishna.
30. PW.8 is the Investigating Officer, who recorded the statement from the deceased. At this juncture, this Court would like to refer here the substance of the statement which was recorded in Telugu, by translating into English for better appreciation. So, it runs in substance as follows:
"She is resident of Peddagutlapalli. She does coolie works and belongs to Madiga community. Day before yesterday, there was a meeting of one of RDT people at 8:00 AM. Her parents and elder sister went there and she was alone in the house attending domestic work. At 10:00 AM one Vodde Muniswamy entered into the house and tried to commit rape and caught hold of her hand. She intimated him that she belongs to scheduled caste community and requested him not to commit rape. Without hearing her request, he thrown her to ground and attempted to commit rape. Then, she raised huge cries. Then, her relative Narasimhulu and others came there and on seeing them, Muniswamy absconded, though they attempted to catch hold of him. After some time, her parents came there and then she intimated the incident to them".17
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31. The above is the substance of the statement of the deceased insofar as the attempt made by the accused to outrage her modesty by using criminal force etc.,
32. Now, the simple question that falls for consideration is as to whether Ex.P-9 can be taken as a dying declaration?
33. It is to be noticed that PW.7 testified to the fact that in his presence of Sub-Inspector of Police, Kadiri Town, recorded the statement of Gangarathnamma and he made an endorsement on the said statement that the patient was conscious and coherent. Ex.P-6 is his endorsement on the statement. In fact, after admission of Gangarathnamma in the hospital, he sent intimation to the concerned Police and Ex.P-7 is the said intimation.
34. Now, coming to the evidence of PW.8, he has spoken to the fact that on receipt of medication intimation, he went to the Government Hospital, Kadiri and by then, PW.7 was present and he recorded the statement of Gangarathnamma. Ex.P-9 is the said statement. He then returned to the Police Station and sent Ex.P-9 to ODC Police Station along with Ex.P-8 death intimation. So, it is a case where, on intimation from PW.7 about the admission of Gangarathnamma in the hospital, PW.8 rushed there and 18 AVRB,J Crl.A. No.460/2009 recorded the statement of Gangarathnamma, while she was alive. PW.7 was cross-examined in this regard and he testified that he was on duty from 09:00 AM to 09:00 AM. On the next day at 09:20 AM patient Gangarathnamma was brought to the hospital. Then he filled up relevant contents in Ex.P-7, basing on the information furnished by the patient. Thereafter, he sent Ex.P-7 to the Police. He took 10 to 15 minutes to fill up the contents. He gave routine treatment to Gangarathnamma including administering pain killers, I.V. Fluids and antibiotics. No sedatives were given to the patient immediately after her admission. He denied that he put the date as 13.04.2006. He denied that he endorsed on Ex.P-6 after the death of the deceased at the time of conducting post-mortem examination. He denied that PW.7 did not record the statement before him and it was prepared by him at the Police Station and he signed which was prepared by S.I. of Police in the Police Station to oblige the Police. He deposed in cross-examination that patient was in fit state of mind to give the statement. He volunteers that conscious and coherent means that patient was in fit state of mind to give statement.
35. PW.8, during the course of cross-examination, deposed that he found the patient in female ward. It took two hours to record 19 AVRB,J Crl.A. No.460/2009 statement in Ex.P-9. He denied that two thumb impressions are appearing on Ex.P-9 and that thumb impression on Ex.P-9 is not at all that of Gangarathnamma and Ex.P-9 was fabricated in the Police Station.
36. Literally, as seen from Ex.P-9, it unerringly pointed itself that the said statement was made by the deceased explaining the circumstances in which she received the burn injuries and narrating the two instances that were happened on 09.04.2006 at 10:00 AM and 11.04.2006 at 10:00 PM. So, undoubtedly, Ex.P-9 can be considered as a dying declaration.
37. Now, it is a matter of appreciation as to whether the reliance can be placed upon such Ex.P-9 dying declaration.
38. The probing cross-examination was done before PWs.7 and 8 and they withstood the cross-examination. In my considered view, when there was a categorical endorsement made by PW.7 at the time of recording of Ex.P-9 by PW.8 that the patient was conscious and coherent, it is nothing but a certification that the patient was in fit state of mind. A vain attempt was made by the accused before the Court below to contend that Ex.P-9 was fabricated but on considering the evidence as above and looking 20 AVRB,J Crl.A. No.460/2009 into the cross-examination part of PWs.7 and 8, absolutely, this Court has no reason whatsoever to say that Ex.P-9 is a fabricated document. It is to be noticed that Ex.P-9 categorically establishes the presence of PW.5 at the time of incident on 09.04.2006. So, the contention of the accused before the Court below that PW.5 was a planted witness is not at all tenable. So, the evidence of PW.5 that he witnessed the occurrence has any amount of corroboration from Ex.P-9, the statement of the deceased which has to be considered as a dying declaration. So, PWs.1, 2 and 3 came to know about the incident after they returned after attending RDT meeting. Turning to Exs.D-1 and D-2, which were marked during the cross-examination of PWs.1 and 3, Ex.D-1 is to the effect that PW.1 stated before Police that he returned to house at 11:00 AM after attending meeting of RDT people, Ex.D-3 is to the effect that PW.3 stated before Police as in Ex.D-2 i.e., altogether came back. Though PWs.1 and 3 denied that they stated before Police as in Exs.D-1 and D-2, Exs.D-1 and D-2 were not put before PW.9, the Investigating Officer. So, virtually the accused did not elicit from the mouth of PW.9, who recorded the statements of PWs.1 and 3 that they stated so as in Exs.D-1 and D-2. So, they are not proved. Apart from this, even otherwise Exs.D-1 and D-2 would not favour the defence of the accused in 21 AVRB,J Crl.A. No.460/2009 any way because though accused allegedly used criminal force against the deceased, outraging the modesty but the prosecution party did not think over to lodge report keeping in view the prestige of the deceased. It is quietly deposed by PW.2 in his chief- examination itself. So, Exs.D-1 and D-2 would not support the defence of the accused in any way.
39. Having considered the above, this Court is of the considered view that there was evidence of PW.5, a direct witness, which was corroborated by the statement of the deceased under Ex.P-9. There are no doubtful circumstances hovering around Ex.P-9, statement of the deceased, which comes under the purview of the dying declaration.
40. The line of the defence of the accused with regard to the trend in cross-examination of the prosecution witnesses is such that he set forth two reasons for the alleged false implication. One is that there was a political rivalry in between two groups i.e., between the group of prosecution witnesses and the group of the accused as such he was implicated falsely. Another defence theory is that the deceased used to perform chinnamma kathalu in the village and used to return from the villages on the next day and she used to get Rs.200/- for each performance and PW.2, the 22 AVRB,J Crl.A. No.460/2009 brother of the deceased, and PW.3, the brother-in-law of the deceased, used to object it as such she committed suicide.
41. Coming to the evidence of PW.1, in cross-examination, with regard to the previous disputes between the brothers of the accused and one Chenna Krishna Reddy, he stated that a gallata took place in between the brothers of the accused and Chenna Krishna Reddy and Eswar Reddy. The said gallata was very serious. He deposed that he does not know whether the Chenna Krishna Reddy and others lodged any police report. He admitted that the fact that he, his wife, his son-in-law and daughter used to attend coolie works in the fields of Chenna Krishna Reddy and others. He denied that at the instance of Chenna Krishna Reddy, accused is implicated falsely.
42. The above said defence of the accused is not at all probable. It is not a case of enmity between PW.1 and the accused. So, simply because PW.1 and his family members used to work in the fields of Chenna Krishna Reddy for their livelihood, it does not lead to a conclusion that at the instance of Chenna Krishna Reddy the family of PW.1 implicated the accused. Nothing is elicited from the mouth of the prosecution witnesses that accused and the family of 23 AVRB,J Crl.A. No.460/2009 PW.1 had any rivalry. Hence, the above defence of the accused was not probabilized in any way.
43. Coming to another contention of accused that there was an admission that the deceased was attending Chinnamma kathalu by taking some remuneration in the villages, PWs.2 and 3 denied that because they chastised the deceased, she committed suicide. It is to be noticed that when there was no enmity between the family of the prosecution witnesses and the accused, it is rather improbable for a woman like the deceased to say the name of the accused as attempted to commit rape on her for no fault of him. So, in my considered view, the evidence of PW.5 has full support from the contents of Ex.P-9 in which there was a reference about the presence of PW.5, on hearing the cries of the deceased at the time of offence in question. Having regard to the above, the defence theory about the false implication is not at all tenable.
44. Though the incident took place on 11.04.2006 but unfortunately for want of transport facility as the incident was happened at odd hours deceased could be taken to hospital on the next day as such criminal law was set into motion after PW.8 recorded the statement of the deceased i.e., Ex.P-9 on medical intimation from PW.7. So, absolutely, there is no delay for 24 AVRB,J Crl.A. No.460/2009 registration of the FIR. Having regard to the above, this Court is of the considered view that the prosecution is able to prove the fact that on 09.04.2006 at 10:00 AM accused trespassed into the house of the deceased and used criminal force to outrage the modesty of the deceased.
45. Now, this Court has to see whether the act of the deceased in committing suicide by her on 11.04.2006 was in consequence of the accused committing the offence under Section 354 IPC against the deceased on 09.04.2006 at 10:00 AM. As this Court already pointed out the prosecution was able to prove the factum of commission of suicide by the deceased by pouring kerosene on her body and setting ablaze. As seen from Ex.P-9, the statement of the deceased, insofar as the commission of suicide is concerned, it runs to the effect that since the date of incident on 09.04.2006, she felt ashamed of it and she having suffered with such ashamedness on 11.04.2006 at 10:00 PM, while her parents, elder sister and brother-in-law were sleeping in front of the house, she was alone in the house and being unable to digest the humiliation, with an intention to commit suicide, she poured kerosene on her body and set ablaze her and she contacted with burns and unable to bear the burns, she rushed out from the house and then her 25 AVRB,J Crl.A. No.460/2009 parents, elder sister and brother-in-law and neighbourers put off the flames and as there was no transport facility, on the next day, she was taken to the hospital. So, the deceased in Ex.P-9 statement referred the act of the accused as an act which compelled her to commit suicide. The intention of the deceased can be seen from Ex.P-9 which is a dying declaration.
46. Now, this Court has to look into as to whether the evidence on record is sufficient to say that on account of abetment made by the accused the deceased committed suicide.
47. Section 306 IPC runs 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."
48. The contention of learned counsel for the appellant that the act of the accused in allegedly outraging the modesty of the woman on 09.04.2006 cannot be taken as an abetment for the commission of the suicide made by the deceased on 11.04.2006 at 10:00 PM.
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49. This Court has carefully looked into the facts and circumstances. Admittedly, the word „suicide' is nowhere defined in the Indian Penal Code. The Hon‟ble Supreme Court in M. Mohan v. The State, represented by the Deputy Superintendent of Police1 while dealing with the case as to whether the allegations of the prosecution before the Court below would attract the offence of Section 306 IPC, held as follows:
"38. The word 'suicide' in itself is nowhere defined in the Indian Penal Code. However, its meaning and import is well known and requires no explanation. `Sui' means `self' and `cide' means `killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
39. In our country, while suicide itself is not an offence considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under Section 309 of I.P.C.
40. „Abetment of a thing' has been defined under section 107 of the Code. We deem it appropriate to reproduce Section 107, which reads as under:
"107. Abetment of a thing - A person abets the doing of a thing, who -
1 AIR 2011 SC 1238 27 AVRB,J Crl.A. No.460/2009 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 places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing.
Explanation 2 which has been inserted along with Section 107 reads as under:
"Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
50. In the above referred citation, the Hon‟ble Supreme Court, further at Para No.44, referring to the decision in Chitresh Kumar Chopra v. State2 (Govt. of NCT of Delhi) held as follows:
"44. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (16) SCC 605, had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation" and "goading".
The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. 2 2009 (16) SCC 605 28 AVRB,J Crl.A. No.460/2009 Each person has his own idea of self-esteem and self- respect. Therefore, it is impossible to lay down any straight- jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
45. 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.
46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide".
51. So, by virtue of the same, each person‟s suicidability pattern is different from others. Each person has his own idea of self esteem and self respect. So, this Court has to look into the fact that according to Ex.P-9, statement of the deceased, which is inspiring confidence in the mind of the Court, she kept in view the incident that was happened on 09.04.2006 at 10:00 AM and she felt ashamed of it, felt humiliation for about 60 hours and being unable to digest the same, decided to end the life as such she 29 AVRB,J Crl.A. No.460/2009 poured kerosene on her body and set ablaze. Now, this Court has to see as to whether accused can be held responsible for the same.
52. According to the above decision, 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. Apart from this, there has to be a clear mens rea to commit the offence and it requires an active act or direct act which led the deceased to commit the suicide saying no option. It is to be noticed that the Hon‟ble Supreme Court dealing with a case under Section 354 IPC in Raju Pandurang mahale v. State of Maharashtra3 held that the word „modesty‟ is not defined in IPC and held that the essence of a woman‟s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman and knowledge 3 AIR (2004) SC 1677 30 AVRB,J Crl.A. No.460/2009 that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object.
53. As this Court already pointed out the act of the accused in proceeding to the house of the deceased, when she was alone, and making an attempt to lay her to ground and thereby pressing her is nothing but an act which attracts the offence under Section 354 IPC. Accused had knowledge that the deceased was aged about 19 years, who was unmarried. He had got every knowledge that by such an act, if she raises cries, public will gather and incidence would be revealed to everybody in the village. As this Court already pointed out suicidal pattern of individual depends upon the mentality of the individual. So, having regard to the above, the act committed by the deceased is nothing but in consequence to the act done by the accused outraging her modesty. Under the circumstances, accused must have knowledge that in the given situation, there is every likelihood that the deceased may feel to end her life on account of the humiliation, which she may suffered on account of the act of the accused. Having regard to the above, this Court is of the considered view that the act of the commission of suicide by the deceased is nothing to a resultant act of the 31 AVRB,J Crl.A. No.460/2009 accused outraging her modesty as such. In my considered view, the prosecution was able to prove the offence under Section 306 IPC also against the accused beyond reasonable doubt.
54. The learned Special Sessions Judge, Anantapur as evident from the impugned judgment rightly analyzed the entire evidence on record and rightly looked into the defence of the accused and negatived the defence of the accused with sound reasons. Having regard to the above, this Court is of the considered view that the prosecution was able to prove beyond reasonable doubt before the Court below that on 09.04.2006 at 10:00 AM accused outraged the modesty of the deceased, who was un-married daughter of PW.1, and unable to digest the humiliation, she felt in the eye of public, she ended her life by committing suicide. Thus, the prosecution was further able to prove that the act of commission of suicide by the deceased was direct consequence of the act of the accused for the offence under Section 354 IPC. Hence, the prosecution before the Court below categorically proved the offence under Sections 354 and 306 IPC against the accused beyond reasonable doubt. The learned Special Sessions Judge, Anantapur in my considered view, rightly appreciated the evidence on record and rightly found the appellant/accused guilty of the above said offences and 32 AVRB,J Crl.A. No.460/2009 convicted and sentenced him. The sentence of imprisonment of five years each imposed for the offences under Sections 354 and 306 IPC cannot be said to be harsh. Hence, I see no reason to interfere with the said reasoned judgment of the learned Special Sessions Judge, Anantapur as such the Criminal Appeal must fail.
55. In the result, the Criminal Appeal is dismissed. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court including the trial Court record, if any, to the Court below on or before 02.01.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant/accused in S.C. No.254 of 2007, dated 31.03.2009 and to report compliance to this Court. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 27.12.2022 DSH