Madras High Court
Poongothai : Revision vs The State Represented By on 9 January, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.01.2018 JUDGEMENT RESERVED DT: 04.01.2018 JUDGEMENT DELIVERED DT: 09.01.2018 CORAM THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI Crl.R.C(MD)No.609 of 2007 Poongothai : Revision Petitioner/ Appellant/Accused No.2 Vs. The State represented by the Deputy Superintendent of Police, Kumbakonam, Thanjavur District.
(Crime No.58 of 2005) : Respondent/Respondent/
Complainant
Prayer: Criminal Revision Petition has been filed under Section 397 & 401 of Criminal Procedure Code, against the judgment, dated 30.07.2007 in C.A.No.36 of 2007 on the file of the I Additional District & Sessions Judge (Protection of Civil Rights), Thanjavur, confirming the judgment of conviction and sentence imposed by the Chief Judicial Magistrate, Kumbakonam made in S.C.No.91 of 2006, dated 13.02.2007 !For Revision Petitioner : Mr.AR.L.Sundaresan Senior counsel for Mr.AL.Gandhimathi ^For Respondent : Mr.C.Ramesh Additional Public Prosecutor :Judgment This criminal revision petition has been filed challenging the conviction of the revision petitioner for an offence under Section 306 IPC passed by the Courts below. The revision petitioner was sentenced to undergo 3 years Rigorous Imprisonment and pay a fine of Rs.1,000/-, in default to undergo 6 months Simple Imprisonment, for the said offence.
2.It is the case of the prosecution that the deceased Mala was given in marriage to the son of A1 and brother of A2 and A3 is the co-sister of the deceased. At the time of marriage, the bride family agreed to give 14 sovereign of jewels. However, only 9 sovereigns were given. After marriage, the deceased and her husband were living with the accused at Nalur Village, Kumbakonam. On 06.01.2005, the husband of the deceased Mala went to foreign country for employment and at that time, he mortgaged his wife jewels. PW1 brother and PW2 mother and PW3 sister-in-law of the deceased went to the accused house during Pongal festival in order to give seer to the deceased. At that time, the accused demanded 4 sovereign of jewels. In the meantime, on 05.03.2005, the father of PW1 and husband of PW2 died. The deceased Mala participated in the death ceremony with the accused. When the matter stood thus, the deceased Mala has become pregnant. In an occasion, she informed the same to her husband stating that the accused suspecting the fidelity. When that being so, on 13.03.2005, PW1 to PW3 was informed that the deceased Mala set her ablaze by pouring kerosine and admitted in the Kumbakonam Government Hospital. When they were questioning the deceased in the hospital, she informed them that the accused demanding 4 sovereign of jewels and they also suspected the fidelity of her. Thereafter, on 13.03.2005, the deceased Mala died in the Kumbakonam Government Hospital, where she was examined by Dr.Kannan (PW8). He was found to have suffered burn injuries by the deceased. The Accident Register Ex.P7 relating to Mala. The police was informed that on 13.03.2005 at around 10.30 a.m, Mrs.Nandhini Devi (PW12) Judicial Magistrate recorded the dying declaration of Mala in the hospital and the same was marked as Ex.P.8. In the evidence of Judicial Magistrate, it is stated that the deceased was conscious and in fit state of mind to give statement. Mala succumbed to injuries on 13.03.2005 at 01.15 p.m and on 14.03.2005, Dr.Kannan (PW8) performed autopsy on the body of Mala and the Postmortem certificate was marked as Ex.P2. He has opened that the death was due to burns and hyporogenic shock. Since, Mala died within seven years of her marriage, the police informed (PW9) Thiru.Somasundaram, the Revenue Divisional Officer and accordingly, R.D.O conducted inquest by examining several witnesses. The Inquest Report was marked as Ex.P3. In the opinion of the R.D.O, the deceased has committed suicide due to scoldings and ill treatment by A1 to A3 and also due to demand of dowry. The police conducted further investigation and filed a final report for the offence under section 304(B) IPC.
3.In the trial court, 14 witnesses were examined, 11 Exhibits and 6 Material Objects were marked. When the accused were questioned about the incriminating circumstances, they denied the same. One witness was examined on behalf of the accused and no document was marked. The trial court convicted the revision petitioner/A2 alone for the offence under section 306 IPC and sentenced her to undergo 3 years Rigorous Imprisonment and a fine of Rs.1,000/-, in default to undergo 6 months Simple Imprisonment for the offence under section 306 IPC and acquitted the other accused. Aggrieved by the conviction and sentence passed by the trial court, the revision petitioner/A2 filed an appeal in Cr.A.No.36 of 2007, which was heard by the I Additional Sessions Judge (PCR), Thanjavur. The first appellate Court confirmed the conviction and sentence for the offence under section 306 IPC. Hence, this criminal revision.
4.Mr.AR.L.Sundaresan, learned Senior counsel for the revision petitioner/A2 submitted that initially charge was framed for the alleged offence under section 304(B) IPC, but at the time of rendering judgment, it has been held that conviction has been awarded under section 306 IPC and the revision petitioner was not given reasonable opportunity of defending herself as against the charge and there is no sufficient circumstance and legal evidence to hold that the revision petitioner is guilty of abetting the suicide committed by the deceased and there was no close proximity between the alleged instigation and the same should be sufficient to drive a normal person to put an end to one's life and the provocation alleged is not of that nature and it would not satisfy the requirement to render conviction under section 306 IPC and there was unexplained and unreasonable delay in lodging the FIR and the revision petitioner is not in any manner responsible for the act of suicide committed by the deceased and prays that the revision petitioner is entitled to acquittal.
5.On the other hand, Mr.C.Ramesh, learned Additional Public Prosecutor appearing for the respondent/State argued that mere omission or defect in framing the charges does not disable the criminal court from convicting the accused for the offence, which is found to have been proved on the evidence on record and in this case, even though charge is framed under section 304(B) IPC, all facts and ingredients for framing charge for offence under section 306 IPC existed and mere omission on the part of the trial court to mention section 306 IPC, instead of 304(B) IPC does not preclude the court from convicting the accused for the said offence when found proved and the provisions of section 221 Cr.P.C safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged, although on facts found in evidence, he could have been charged for such offence and omitted to frame charge under section 306 IPC has not resulted in any failure and only due to the instigation of A2, the deceased committed suicide and hence, the offence is proved beyond reasonable doubt on the prosecution side and prays that the criminal revision is liable to be dismissed. In support of his contention, the learned Additional Public Prosecutor has relied upon the decisions reported in (2003)1 SCC 217 [K.Prema S.Rao vs. Yadla Srinivasa Rao] and (2013)7 SCC 108 [Gurnaib Singh vs. State of Punjab].
6.This court has carefully heard the submission made on either side and perused the materials available on record.
7.In this case, A2 is the sister-in-law of the deceased. The deceased after her husband went to aboard for his occupation, she lived in her in- laws' house. The above fact is not denied on the accused side. After the occurrence, the deceased was taken to Kumbakonam Government Hospital and she gave a dying declaration. The Doctor has stated that at the time of recording dying declaration by the Judicial Magistrate, the deceased was in soundness of mind. The dying declaration of the deceased was marked as Ex.P8. On perusal of the dying declaration, it is stated as follows:-
?vd; ehj;jdhh; g{A;Bfhij vg;g gho jpl;of; bfhz;Bl nUg;gh ehd; fh;g;gkh nUf;fpwij re;Bjfglwh?, khh;fHp khjk; vd; tPl;Lf;fhuh; btspehL Bghdhh; nd;idf;F fhiyy tPl;Ls;s gLj;J fpl;L nUe;Bjd; tho Bghod;D jpl;odhh; ehBd kz;bzz;id Cw;wpf; bfhz;Bld; g{A;Bfhij vf;fhskhf Bgrpdhh; vd; tPl;il gj;jp jg;gh Bgrpdh. Mjdhy tPl;Ls;s kz;bzz;bza; vLj;J Cw;wpf; bfhz;Bld; mg;g bfhGe;jdhh; ehj;jdhh;, xg;g[oah, khkpah nUe;jh.
8.On careful perusal of the dying declaration given by the deceased, it reveals that due to the instigation of A2, the deceased poured kerosene on her body and fired. The dying declaration is the vital document. The Doctor, who present at the time of recording the dying declaration of the deceased, certified that the deceased is in conscious throughout recording the statement. In the dying declaration, the deceased has not stated that the close relatives of her husband demanded dowry and only due to it, she poured kerosine.
9.In this case, PW1 to PW3 have stated in their evidence that the deceased told them that the accused No.2 scolded her and suspected her pregnancy.
10.On careful perusal of the evidence of PW1 to PW3, it reveals that the accused No.2 scolded the deceased frequently, while the deceased was in the house of of her husband along with the Accused No.2. From the dying declaration also, it is revealed that only due to the instigation of the Accused No.2, the deceased poured Kerosene and thereby committed suicide.
11.On careful perusal of the decision reported in (2003)1 SCC 226 (K.Prema S.Rao Vs. Yadla Srinivasa Rao), the Hon'ble Apex Court held as follows:-
?22.Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before Us. From the statement of charge framed under Section 304-B and in the alternative Section 498-A IPC (as quoted above), it is clear that all facts and ingredients for framing charge for offence under Section 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention Section 306 IPC with Section 498-A IPC does not preclude the court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498-A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 Cr.PC take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence.
...25.As provided in Section 215 CrPC omission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306 IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498-A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing ?dowry death? under Section 304-B which is punishable with minimum sentence of seven years? rigorous imprisonment and maximum for life. Presumption under Section 113-A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498-A IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498-A IPC.
12.For the above fact, the learned Additional Public Prosecutor submitted by relying upon another decision reported in (2003)1 SCC 217.
13.In this case, on careful perusal of the dying declaration given by the deceased, she has stated that frequently A2 scolded her and suspected her pregnancy and only due to it, she poured kerosine on her body. Already the trial court came to the conclusion that there is no dowry demand by the accused.
14.In this case, before the trial court, the prosecution has not been able to establish the charge under section 304(B) IPC and had, therefore, converted the punishment to one under section 306 IPC, since the cruelty of harassment, which drives the deceased to commit suicide, hence, it attracts the offence of abetment of suicide under section 306 IPC.
15.Further, mere omission or defect in framing charge would not disable the Court from convicting the accused for the offence, which has been found to be proved on the basis of the evidence on record.
16.Hence, this court is of the considered view that there is no necessity to interfere with the finding of the trial court, which converted the charge from 304(B) IPC to 306 IPC, which was confirmed by the first appellate court. However, considering the age and the family circumstances of the revision petitioner, the sentence awarded by the courts below is reduced to six weeks R/I. The fine amount imposed by the trial court is confirmed. The period of sentence (24.03.2005 to 09.05.2005) already undergone by the accused is set off under section 428 of Cr.P.C.
17.In the result, this criminal revision is partly allowed.
To,
1.The I Additional District & Sessions Judge, (PCR), Thanjavur.
2.The Chief Judicial Magistrate, Kumbakonam.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.