Madras High Court
Ashok Kumar vs State Rep. By on 11 August, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.08.2014 C O R A M THE HONOURABLE Mr. JUSTICE M.VENUGOPAL Criminal Appeal No.457 of 2006 Ashok Kumar ... Appellant/Accused Vs State rep. By The Inspector of Police (L & O), E-3 Teynampet Police Station, Chennai 600 006. ... Respondent/Complainant Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., praying to set aside the sentence of imprisonment and acquit the Appellant's conviction imposed on him vide Judgment dated 12.05.2006 in S.C.No.627 of 2005 by the Learned Sessions Judge, Mahila Court, Chennai. For Appellant : Mr.K.Kumar For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor JUDGMENT
The conviction and sentence dated 12.05.2006 passed by the Learned Sessions Judge, Mahila Court, Chennai are now under challenge in the present Appeal filed by the Appellant.
2.The Appellant/Accused was found guilty by the trial Court in respect of an offence under Section 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 and he was convicted and sentenced to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs.50,000/- and in default of payment of fine, he was further directed to undergo Rigorous Imprisonment for a period of 2 years. Further, out of the fine amount of Rs.50,000/-, a sum of Rs.20,000/- was ordered to be paid to P.W.1 and P.W.3 as compensation in terms of the ingredients of Section 357 Cr.P.C. Further, he was found not guilty of the offences under Sections 305 and 506(1) of the Indian Penal Code and resultantly, he was acquitted.
Gist of Prosecution Case:
3.The case of the prosecution is that the Appellant/Accused who was residing at the opposite house of deceased Chitra took the photographs (which were taken during the puberty ceremony) and by keeping those photographs with him, he blackmailed her to love him. Further, he often used to contact the victim Chitra over phone available at her employer's house and insisted that she should love him, otherwise he would murder her parents. Moreover, the Appellant/ Accused on 08.01.2005 contacted the victim Chitra over phone and called her for an elopement. Inspite of her unwillingness, since the Accused insisted the victim Chitra repeatedly by threatening her, she is immolated herself at her employer's house at about 3.00 p.m. on 08.01.2005. Later, she succumbed to burn injuries on 10.01.2005. After completion of the investigation, the Investigation Officer laid the charge sheet against the Appellant/Accused under Section 305 I.P.C., under Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 and under Section 506(1) I.P.C.
4.On the basis of accusation levelled against the Appellant/ Accused, the trial Court framed two charges one under Section 305 I.P.C. or in the alternative under Section 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 and under Section 506(1) I.P.C. and he denied the same.
5.Before the trial Court, on the side of prosecution, witnesses P.W.1 to 14 were examined and Exs.P.1 to P.17 and M.O.s 1 to 7 were marked. Ex.D.1 was also marked on the side of the Appellant/Accused.
6.When the Appellant/Accused was questioned under Section 313 Cr.P.C. in regard to the incriminating circumstances appearing in evidence against him, he denied his complicity in the aforesaid offence.
7.The trial Court, on an appreciation of both oral and documentary evidence, had resultantly found that the Appellant was guilty under Section 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 and sentenced him to undergo Rigorous Imprisonment for 3 years and also imposed a fine of Rs.50,000/-, in default, he was directed to undergo Rigorous Imprisonment for 2 years. Out of the fine amount of Rs.50,000/-, a sum of Rs.20,000/- was directed to be paid by the Appellant to P.W.1 and P.W.3 as compensation in terms of Section 357 Cr.P.C.
8.Feeling aggrieved with the conviction and sentence passed by the trial Court in S.C.No.627 of 2005 on the file of the Sessions Judge, Mahila Court, Chennai, as an aggrieved person, the Appellant has projected the instant Criminal Appeal before this Court.
The Appellant's Contentions:
9.The Learned Counsel for the Appellant contends that the trial Court had committed an error in believing the tutored dying declaration of Chitra which was purported to have been recorded by the Sub-Inspector of Police on 08.01.2005 at 4.15 p.m. and sent to Court on 09.01.2005 at 8.30 a.m.
10.It is the submission of the Learned Counsel for the Appellant that the trial Court had not taken into account the delay of 16 hours in respect of the First Information Report reaching the Magistrate Court which was unexplained by the prosecution and consequently, this throws a doubt on the entire truth of the case.
11.Advancing his arguments, the Learned Counsel for the Appellant contends that the trial Court had failed to appreciate that the dying declaration was not corroborated and material contradictions were very much evident which remain unexplained by the prosecution.
12.The Learned Counsel for the Appellant proceeds to submit that no local witnesses were examined to prove that the Appellant/ Accused was teasing the deceased Chitra and this vital aspect was not taken into consideration by the trial Court.
13.Expatiating his submission, the Learned Counsel for the Appellant contends that the trial Court failed to bear in mind that the mobile phone of the Appellant was not decoded to show that he made a phone call to the deceased at 2.00 p.m. on 08.01.2005 and the threat caused was not established at all.
14.The Learned Counsel for the Appellant submits that the ingredients of Section 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 were not made out by the prosecution in the present case.
15.The Learned Counsel for the Appellant projects an argument that the Tamil Nadu Prohibition of Harassment of Woman Act is not applicable to a private dwelling house. Admittedly, the incident took place in the house of P.W.2 (working Flat 89 Poes Garden, Chennai) and therefore, as per Ex.P.8-A.R. Copy, the ingredients of Section 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act are not attracted. To lend support to this contention, the Learned Counsel for the Appellant relies on the order of this Court in Crl.R.C.No.908 of 2010, dated 11.08.2011 (CDJ 2012 MHC 2168) (between Anbazhagan V. State represented by Inspector of Police, Pallikaranai Police Station, Kancheepuram District), whereby and whereunder, in paragraph 7, it is observed as follows:
7.To attract offence under Section 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998 offence must have taken place at a place particularly covered by the Section. A private dwelling house is not one of such places Section 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998 reads as follows:
4.penalty for (harassment or woman)-whoever commits or participates in or abets (harassment of woman) in or within the precincts of any educational institution, temple or other place of worship, bus stop, road, railway station, cinema theatre, part, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may extend to three years and with fine which shall not be less than thousand rupees.
16.The Learned Counsel for the Appellant submits that P.W.1 (deceased father), in his evidence, had deposed that during last year 8th of January, he left her daughter in the house where she was employed her and at about 6.00 p.m. informed him over the phone, his daughter Chitra pouring kerosene and set fire to herself and immediately he went to the Royapettah Hospital and she spoke to him and further that she informed him that the Appellant phoned up to her and asked her to come along with him, otherwise he would murder her father, mother on the same day night and unable to bear his harassment, she feared that he would so something, she poured kerosene. Added further, since the Appellant continued to heckle her and unable to bear his harassment, she informed P.W.1 that because of this reason she would not go for employment and therefore, he accompanied and left her.
17.The Learned Counsel for the Appellant submits that P.W.5 (driver), in his evidence, had stated that he does not know about the Appellant/Accused and he heard that Chitra set fire to herself and he knew the deceased Chitra who worked as housemaid at P.W.2's house and on hearing that she set fire to herself, he along with watchman took Chitra to the Royapettah Hospital in owner's vehicle and further, they phoned up for the Ambulance and since the Ambulance had not come in time and considering her life was at risk, they took her in the owner's vehicle and admitted her in the hospital and he had not enquired about anything with her.
18.The Learned Counsel for the Appellant refers to the evidence of P.W.3 (mother of deceased Chitra) and contends that when she went to the Royapettah Hospital along with her younger daughter and her husband, she asked her daughter Chitra as to why she had set fire to herself? and at that time, her daughter was in charred condition and further, she informed her that after she went for the work, sometime later, the Appellant phoned up to her to the owner of the house and threatened her that you have to love him. If you do not love like that he would murder her father and mother and so saying, he threatened her.
19.The Learned Counsel for the Appellant refers to the evidence of Doctor P.W.10 and contends that the injured Chitra informed P.W.10 that she set fire to herself and on 08.01.2005 at about 3.20 in the afternoon, the said Chitra was brought by her house driver Jagan with burn injuries for treatment and she informed that her father's name was Ramamurthy (P.W.1) and she was residing at Prasanna Vinayagar Street, Pudupettai, Gopalapuram, Chennai and at that time, she was in conscious state and she had not mentioned the reason for her suicide and also, she had not mentioned the name of the Appellant to P.W.10-Doctor.
20.The Learned Counsel for the Appellant refers to Ex.P.11-Statement (at Burns ward of Government Royapettah Hospital) and submits that since the Appellant had harassed her by asking her to elope with him out of frustration, she poured kerosene of her body with a view to commit suicide.
21.The Learned Counsel for the Appellant refers to Ex.P.6-Dying Declaration of Chitra given before the Learned VII Metropolitan Magistrate, George Town, Chennai and submits that the deceased had stated that the Appellant continuously phoned up where she had employed and frequently threatened her that if she had not loved him, he would murder her parents and afraid of the same, she poured kerosene on her body at Chettiar's house at about 3'o clock on 08.01.2005 and the car driver of the Chettiar's house where she was employed and the servant of her owner, saved her and brought her to the hospital and admitted her.
22.At this juncture, the Learned Counsel for the Appellant contends that Ex.P.2 (A) Endorsement made by the Doctor at 9.45 a.m. in the Dying Declaration of deceased Chitra shows that since Chitra signature could not be obtained and since her left thumb was affected by burn injuries, her right thumb impression was obtained.
23.The Learned Counsel for the Appellant submits that in view of the inter se difference in the Dying Declaration between Ex.P.11 (Complaint of Chitra) and Ex.P.6 (Dying Declaration of Chitra given before Magistrate), a Court of Law is to scrutinise these documents carefully and there must be consistency in those documents in material particulars and in this regard, he cites the decision of the Hon'ble Supreme Court in Bhadragiri Venkata Ravi V. Public Prosecutor, High Court of A.P., Hyderabad, 2013 CRI. L. J. 3665.
24.At this stage, the Learned Counsel for the Appellant submits that on 08.01.2005, at about 18 hours, the victim Chitra was admitted at Government Royapettah Hospital with burn injuries where she had become unconscious and as such, her dying declaration could not be obtained and this could be seen from the contents of requisition of the Sub Inspector of Police, E-3 Teynampet Police Station addressed to the VII Metropolitan Magistrate, George Town and only in this background, the Sub-Inspector of Police had further stated that on 09.01.2005 when he had been to the hospital, he found Chitra was unconscious and was in Burns Ward undergoing treatment. Therefore, it is contended on behalf of the Appellant, it is quite clear that Chitra had become unconscious on 08.01.2005 in the evening and therefore, her dying declaration could not be recorded and this fact clearly shows that the evidence of P.W.1 (Father), P.W.3 (Mother) to the effect that her daughter Chitra told them about the harassment made by the Appellant was a false one.
25.The Learned Counsel for the Appellant refers to Ex.P.12 First Information Report (lodged by victim Chitra) and contends that no date was mentioned in respect of the blackmail purported to have been made by the Appellant and further, she had not also given the telephone land line number of the house of her owner where she was working at the time of incident.
26.The Learned Counsel for the Appellant submits that there was no evidence in the present case as to how the Appellant got the phone number of the house owner of the deceased Chitra.
27.The Learned Counsel for the Appellant contends that the deceased attended the phone call of the Appellant/Accused and she snapped the same. The Learned Counsel for the Appellant submits that P.W.2 (deceased employer's son) took up the phone but he also disconnected the same. Also, the Learned Counsel for the Appellant proceeds to contend that the deceased Chitra came to the conclusion that the Appellant phoned up to her and in fact, the evidence of P.W.2 (Baskar) was to the effect that he attended the phone call but he had not given the land line to the police. The Learned Counsel for the Appellant submits that in Ex.P.6-Dying Declaration, there are general allegations.
28.The Learned Counsel for the Appellant contends that P.W.1, in his evidence, had stated that his daughter (Chitra) talked to him. Also, the Learned Counsel for the Appellant submits that P.W.3 had also, in her evidence, stated that her daughter (Chitra) shortly after going for work informed her that the Appellant/Accused phoned up to her owner's house and threatened her by asking her to love him etc.
29.The Learned Counsel for the Appellant submits that P.W.4 (younger sister of deceased Chitra), in her evidence, had stated that her mother informed that at about 6.30 p.m. or 7.00 p.m. in the evening, her sister (Chitra) set fire to herself and therefore, she was proceeding to hospital and she also went to the hospital and further that her sister (Chitra) spoke to her. Further, her sister Chitra informed her that the Appellant had taken the album and she does not know as to how the album came into the hands of the Appellant and keeping the album with himself, the Appellant threatened her sister and also informed her that he was loving her and asked her to marry him and further threatened her to elope with him.
30.In effect, the submission of the Learned Counsel for the Appellant is that P.W.1 (Father of deceased Chitra), P.W.3 (Mother) and P.W.4 (younger Sister of the deceased Chitra) each one has given a different version. Further, in Ex.P.11-Complaint of the deceased Chitra and in Ex.P.6-Dying Declaration of the deceased Chitra, she had not stated about the phone call and as well as by threat of murder given by the Appellant/Accused.
31.The Learned Counsel for the Appellant refers to the requisition of the Sub-Inspector of Police, Teynampet Police Station dated 08.01.2005 addressed to the Learned VII Metropolitan Magistrate, George Town wherein the Endorsement-Ex.P.7 was made by the Duty Assistant Surgeon, Government Royapettah Hospital on 08.01.2005 at 7.00 p.m. wherein it was mentioned that the Magistrate had arrived at 6.45 p.m. on 08.01.2005 and the patient Ms.Chitra, D/o.Ramamoorthy admitted to Burns Ward at Government Royapettah Hospital, Chennai, was disoriented and hence, dying declaration could not be recorded.
32.The Learned Counsel for the Appellant submits that when Chitra was disoriented at Government Royapettah Hospital, Chennai on 08.01.2005, when the Learned Metropolitan Magistrate arrived at 6.45 p.m. in Burns Ward, it was impossible for Chitra to inform P.W.1, P.W.3 and P.W.4 about the conduct of the Appellant/ Accused and the purported threat made by him. In effect, the plea of the Learned Counsel for the Appellant is that the oral information said to have been given by P.W.1, P.W.3 and P.W.4 about the Appellant/ Accused could not be believed, because of the reason each one of them got stuck in a different direction.
33.The Learned Counsel for the Appellant contends that though P.W.3 (Mother of the deceased Chitra), in her evidence, speaks about the presence of P.W.1 and P.W.4, but P.W.1, in his evidence, does not say about the presence of P.W.3 and P.W.4 at the hospital.
34.The Learned Counsel for the Appellant projects an argument that there was no material on the side of the Respondent/Prosecution to show as to whether the Appellant/Accused purchased the cellphone and also whether it belongs to him. Also, in the present case, there was no evidence to show whether the Appellant made a land line call by using the cellphone and no evidence was collected by the Respondent/Complainant in regard to IMEI (International Mobile Equipment Identity].
35.The Learned Counsel for the Appellant contends that the prosecution had not obtained the call details from the service provider to verify whether the Appellant frequently called the deceased Chitra. These details ought to have been collected by the Respondent/Police from the land line of P.W.2's house to the Appellant's cellphone.
36.The Learned Counsel for the Appellant submits that the mode of communication was only the phone call and in fact, P.W.14, in his evidence, had stated that through M.O.4-Cellphone, it came to be known that the Appellant/Accused phoned up to the house of P.W.2 (Baskar) and talked to Chitra.
37.The Learned Counsel for the Appellant contends that the cellphone was not produced by the prosecution to be used for commission of offence by the Appellant.
38.The Learned Counsel for the Appellant submits that in Ex.P.11 first dying declaration of deceased Chitra, the Appellant made a phone call to elope with him and she immediately disconnected the call.
39.The Learned Counsel for the Appellant contends that Ex.P.11 and Ex.P.12 were sent to Court on 16.03.2006 and there was unexplained delay on the part of prosecution in this regard.
40.The Learned Counsel for the Appellant submits that the Duty Assistant Surgeon of Government Royapettah Hospital, Chennai, who made an Endorsement-Ex.P.7 to the effect that 'Chitra disoriented on 08.01.2005 at 7.00 p.m. and therefore dying declaration could not be recorded', was not examined as a witness on the side of prosecution before the trial Court. As such, it is contended on behalf of the Appellant/Accused that the evidence of P.W.1, P.W.3 and P.W.4 to the effect that the deceased Chitra spoke to them about the conduct of the Appellant/Accused could not be believed.
The Submissions of Respondent/Complainant:
41.Per contra, the Learned Additional Public Prosecutor for the Respondent contends that Section 3 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 speaks of Prohibition of Harassment of Woman at any place and Section 4 enjoins penalty for harassment of woman and the words 'any place' by a conjoint reading of Sections 3 and 4 of the Act point out that wherever the occurrence takes place it refers to the same and therefore, it applies to the private dwelling house/place.
42.The Learned Additional Public Prosecutor appearing for the Respondent/Complainant submits that Ex.P.6 and Ex.P.11 Dying Declarations do not suffer from any infirmities and in fact, the deceased Chitra was 16 years old at the time of occurrence and there was continuous phone call on the date of occurrence to P.W.2's house and only P.W.2 attended the phone call.
43.The Learned Additional Public Prosecutor for the Respondent contends that the trial Court was very much satisfied with the Ex.P.6 Second dying declaration given by deceased Chitra and in fact, the absence of date and time in FIR could not be taken advantage of by the Appellant/Accused. In fact, only when Chitra became conscious, the Sub-Inspector of Police obtained statement from her and it is contended on behalf of the Respondent that the Appellant/Accused was not a lover of Chitra (although it was represented on behalf of the Appellant before this Court that the Appellant and deceased Chitra were lovers).
Narration of Deposition of Prosecution Witnesses:
44.P.W.1 (Father of deceased Chitra), in his evidence, had deposed that his eldest daughter Chitra was working as servant maid in the house bearing Door No.89 at Poes Garden and she stayed for a month in the said house and was working there and few days later, she used to go for work in the morning and returned to the house during evening and prior to the date of occurrence, she used to go from his house in the morning for attending the work and in the evening, she returned to her house.
45.It is the further evidence of P.W.1 that the Appellant/Accused was residing in the opposite to the house of their residence and that he had heckled his daughter Chitra when she was proceeding to attend to the work at Poes Garden and her daughter had spoken about the heckling made by the Appellant/Accused to her and he called the Appellant/Accused and reprimanded him by saying if he continued to indulge in the same, he informed him that he would lodge a complaint against him and in the meanwhile, his daughter Chitra informed him that she was not going for household work and she would remain at home for which he repudiated and asked her to attend to her work and he himself had taken her to the house where she was employed and left her on 08.01.2005. Further, he had stated, in his evidence, that on the evening of 08.01.2005 at about 6.00 p.m. the house owner of Chitra (where she was employed) informed him over the phone that Chitra set fire to herself by pouring kerosene and on 10.01.2005 at about early morning at 3.00 a.m. his daughter Chitra had expired.
46.P.W.2 (son of the house owner where the deceased Chitra worked), in his evidence, had stated that he does not know the Appellant/Accused and that in the year 2004 Chitra stayed in his house for nearly 10 or 15 days for assisting his mother and his mother was a sugar patient and later she informed that she wanted to see her mother and thereafter she had not turned up.
47.P.W.2, in his evidence, had further went on to add that on 08.01.2005 Chitra's father came in the morning to his house and left Chitra there and further that in his house, there is a telephone and when the phone call comes, his mother could not raise up and take the phone and his mother presently was not alive and six months had elapsed from the date of death of his mother and on 08.01.2005 during afternoon, his mother, after taking lunch, was taking physiotherapy treatment and at that time, he was taking his lunch and ordinarily, when his mother was taking physiotherapy treatment, she used to inform Chitra to take rest and accordingly, Chitra went to the place of stay for taking rest and suddenly he heard a screaming noise and by the time, when he finished his food and came down to see, the security and police had arrived there and they phoned up to the ambulance and since there was a delay in regard to the arrival of ambulance, the bed sheet was placed on the body of the Chitra and they put out the fire and in his car driver - Jaganraj, watchman Annadurai took the Royapettah hospital and two days later, he was informed that Chitra had expired and he does not know for what reason the said Chitra set fire to herself.
48.P.W.3 (Mother of deceased Chitra), in her evidence, had stated that on 08.01.2005 her husband (P.W.1) took her to the house of P.W.2 and left her there and her mother was working as servant maid in the nearby house of P.W.2's house and to the place where her mother was working, information was given that her daughter Chitra set fire to herself by pouring kerosene and this was informed to her by her mother and that her daughter Chitra expired on 10.01.2005 at about 3'o clock in the early morning.
49.P.W.4, in her evidence, had deposed that the Appellant/ Accused was residing near the portion to their residence portion and she had spoken to the Appellant/Accused occasionally and on 08.01.2005 her sister had gone for work and she had shown the photo album of her sister to the husband, wife (coconut sellers) who were residing in another portion of their house and she had not shown the album except to the aforesaid persons and one day she and her mother was looking into the album and at that time, her mother went to downstairs for taking water and at that time the Appellant/Accused came in the opposite direction and asked her what she was looking into for which she replied that she was looking into her sister's album and since her mother asked her to bring the water, she left the album at the place itself and went for carrying the water and one portion of the album which she was looking into was now shown before her which was marked as Ex.P.1 and after keeping the water in her house, she kept the album in her house.
50.P.W.5, in his evidence, had deposed that he does not know the Appellant/Accused and he knew deceased Chitra who worked in the house of P.W.2 and he came to know that she set fire to herself and he along with watchman took Chitra and admitted her at the Royapettah hospital and he came to know that Chitra had expired and he had not asked anything with Chitra at the hospital.
51.P.W.6 (Doctor), in her evidence, had stated that on 09.01.2005 when she worked at the Royapettah Government Hospital, Chitra was admitted for burn injuries at the Burns Ward and at about 9.30 a.m. in the morning while she was on duty, the Learned VII Metropolitan Magistrate recorded the dying declaration from her and at that time, she was conscious and was in astate of mind to furnish statement and to that effect she had issued the certificate and after recording the dying declaration, the Learned Magistrate obtained the thumb impression from the said Chitra and that the dying declaration was completed at 9.45 a.m. and the certificate given by her was marked as Ex.P.2(A).
52.P.W.7 (Doctor), in his evidence, had deposed that on 10.01.2005 at about 12.30 p.m. in the afternoon when he was on duty at Government Royapettah Hospital, he received the requisition from E-3 Teynampet Inspector of Police (which was brought by Nagaraj- Head Constable No.7615), in P.S. Cr.No.39/2005 and the body of Chitra, aged 16, was identified by the said Nagaraj and he commenced the post-mortem on the body of Chitra on the same day at about 12.45 in the afternoon and that he had given his opinion stating that Chitra died because of the burn injuries and blood circulation variation sustained by her, she had died and the post-mortem certificate issued by him was marked as Ex.P.3. P.W.7 (in his cross examination), had deposed that Chitra had sustained 90% of burn injuries and in front and backside of her hands, there were burn injuries and he had noted down the same.
53.P.W.8, in his evidence, had stated that he was requested by the Police to be a witness in respect of the plan prepared by them where in the house a girl set fire to herself and he had affixed his signature as a witness and apart from that, one plastic bottle (which could fill up one litre kerosene), match box one, burnt saree piece were seized by the police in which he had affixed his signature and the Observation Mahazar was marked as Ex.P.4, Seizure Mahazar was marked as Ex.P.5, one litre plastic bottle was marked M.O.1, Match Box was marked as M.O.2 and burnt green colour cloth was marked as M.O.3.
54.P.W.9 (Metropolitan Magistrate), in his evidence, had deposed that on 08.01.2005 when he worked as VII Metropolitan Magistrate, he received a requisition from the Sub-Inspector of Police, E-3 Teynampet P.S. Cr.No.39/2005 and on the same day, at about 6.00 p.m. in the evening he went to Royapettah Government Hospital in order to obtain the statement from Chitra D/o.Ramamoorthy, aged about 16, who was admitted there and since the said Chitra was in unconscious state, as certified by the Duty Doctor, he returned without recording her statement.
55.It is the further evidence of P.W.9 that again on 09.01.2005, he received another requisition from the E-3 Sub-Inspector of Police at 9.00 a.m. in the morning and went to Royapettah Government Hospital, Burns Ward at about 9.30 a.m. and saw the girl Chitra and the Duty Doctor gave a certificate stating that the said girl with burn injuries was in a conscious and in a fit state to give statement and he put some questions to the said Chitra and subjectively got satisfied himself that she was in a position to give statement. Added further, the said Chitra, in her statement, had stated that Ashok Kumar (Appellant/Accused) was residing in the opposite house of her residence and he was keeping her photos and compelled and threatened her to love him and if she had not loved him, he threatened to murder her parents and since he threatened her by calling her over the telephone in the house where she was employed, out of fear, she poured kerosene and set fire to herself in Chettiar's house at 3.00 p.m. in the afternoon and she was admitted into the hospital by the car driver of Chettiar's house and other servants. Moreover, he obtained a certificate from the Duty Doctor that the said Chitra was in a conscious and fit state throughout, while recording statement and further, she was also in a good state of mind to furnish statement and that he recorded the statement of said Chitra in her own words and read over the same and after she accepted the statement as correct, he obtained her right thumb impression since her left thumb impression was affected by burns and the statement recorded by him was marked as Ex.P.6 and the proceedings were marked as Ex.P.7.
56.P.W.10, in his evidence, had deposed that on 08.01.2005 when he worked as Doctor at the Government Royapettah Hospital in Surgical Department at about 3.20 p.m., Chitra, aged about 16, was brought by one Jagan (house driver) with burn injuries for treatment and she informed him that her father's name was Ramamoorthy (P.W.1), residing at Prasanna Vinayagar Street, Pudupettai, Gopalapuram, Chennai and at that time, she was in conscious state and he was informed that she sustained burn injuries, because on that day at about 3'o clock in the afternoon, the said girl set fire to herself by pouring kerosene and when he examined her, he found burn injuries on her face, front chest, stomach and backside of the body and in two thighs and he admitted her for further treatment at the Burns Ward and the Accident Register Copy furnished by him was marked as Ex.P.8.
57.P.W.11, in his evidence, had deposed that the Appellant/ Accused took the Police and himself to his house and he produced from his house one black colour cellphone, one small diary, one small knife and one sheet photo from the photo album and these were seized by the Police in Ex.P.9 Mahazar in which he had affixed his signature and his signature was Ex.P.10 and the cellphone was marked as M.O.4 and M.O.5 was the knife and the one portion taken from the photo album was marked as Ex.P.1 and the small notebook M.O.6 was also taken by the Police.
58.P.W.12 (Sub-Inspector of Police), in his evidence, had deposed that on 08.01.2005 at about 3.50 p.m. in the evening, based on the informations obtained from the Royapettah Government Hospital, he went to the said hospital at about 4.15 p.m. in the evening, where Chitra, D/o.Ramamoorthy, aged 16, was admitted in Burns Ward for treatment and seen her and when he enquired with the Duty Doctor Dhamodara Raj about her state viz., where she was in a conscious state and fit enough to speak and at that time, Dr.Dhamodara Raj examined Chitra and certified that she was in a good state of mind and also in speaking terms to furnish statement and he enquired with Chitra and recorded her statement and after reading over the statement, he obtained her right thumb impression since her left hand, there were more burn injuries and the said statement was marked as Ex.P.11 and after receipt of the said statement, he came to E-3 Teynampet Police Station and registered a case in P.S. Cr.No.39/2005 under Section 309 of the Indian Penal Code and lodged a printed FIR viz., Ex.P.12.
59.P.W.13 (Doctor), in his evidence, had deposed that on 08.01.2005 when he was working as Post Graduate Trainee Doctor at Government Royapettah Hospital at Burns Ward, at that time, Chitra aged about 16, was admitted into the hospital for treatment of her burn injuries and at that time, the Police officers came to the Ward and they asked him to examine the said girl to find out whether she was in a fit state to furnish statement and he examined the said girl and stated that she was in a conscious and speaking state and when the Police recorded a statement, at that time, he was near the girl in the Ward and the certificate, which he had furnished to the effect that she was in a conscious and fit state during her statement being recorded throughout, was marked as Ex.P.14.
60.P.W.14 (Inspector of Police, L & O), in his evidence, had deposed that on 10.01.2005, P.W.12 (Sub-Inspector of Police) had already conducted a preliminary enquiry in Cr.No.39/2005 under Section 309 of the Indian Penal Code and that because of the death of the said Chitra on 10.01.2005, he took up the case file from P.W.12 for further investigation and based on the death information obtained from the Government Royapettah Hospital, on 10.01.2005 morning, he prepared express alteration report from altering the Section from 309 I.P.C. to Sections 305, 506(1) I.P.C. and 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 and Ex.P.4 was the Alteration Report.
61.Continuing further, P.W.14, in his evidence, had also stated that later he went to mortuary of the Government Royapettah Hospital and in the presence of Panchayatdars, he conducted inquiry in the presence of witnesses P.W.1 (Ramamoorthy), Anjulakshmi and Ex.P.16 was the said inquest report and subsequently, he sent the body of the Chitra through Head Constable-Nagaraj with a requisition letter for conducting post-mortem and in the hospital, he examined P.W.1 (Ramamoorthy), P.W.3 (Mohana) and P.W.4 (Indu) and recorded their statements independently. Also, he recorded the statement of P.W.5 (Jagan Raj), P.W.2 (Baskar), Anjulakshmi, Perumal at Poes Garden house and later he examined P.W.10 Doctor and recorded his statement. Also, at about 16 hours in the evening, he arrested the Appellant/Accused at No.16/29, Prasanna Vinayagar Koil Street, Pudupettai, Royapettah and recorded the voluntary confessional statement given by him in the presence of witnesses viz., Vijaya Kumar and P.W.11-Kannaian and the admitted portion namely, that if the Appellant/Accused was taken to his room, he would produce the cellphone, notebook and the photos kept by him there, which was marked as Ex.P.17 and subsequently, at about 17.30 hours, the Appellant/Accused was taken to his room and from his room, he produced black-blue colour cellphone M.O.4, S.S.A.R. quality slip pad M.O.6 , post card size four photos taken from the album (Ex.P.1) and apart from that, the photo which was taken by the deceased with her two lady friends and the knife kept for self defence (M.O.5) were produced by the Accused which was seized in Ex.P.9. The photo to which the deceased took along with her friends was marked as M.O.7 and later, he brought the Appellant/Accused to the Police Station at about 18.05 hours and after conducting a body search over him, he sent him for judicial custody. Apart from that, he examined P.W.6 treatment Doctor Jaya Sri and P.W.7 - Post-mortem Doctor Baskar and recorded their statement and on the same day, he sent the seized articles under Form 95 to the XVIII Metropolitan Magistrate and after completion of investigation, he laid the charge sheet under Section 305, 506(1) I.P.C. and 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998.
Discussions:
62.Dealing with the plea of the Appellant/Accused that Ex.P.11- FIR (Statement of deceased Chitra at Royapettah Government Hospital, Burns Ward) given on 08.01.2005 at about 4.15 p.m. reached the Metropolitan Magistrate on 09.01.2005 at 8.30 a.m. with a delay of nearly 15 hours and 45 minutes / 16 hours, it is to be pointed out that the said delay is not either material/fatal to affect the case of the prosecution, in the considered opinion of this Court. Also that, it transpires that the aforesaid statement of Chitra was registered in E-3 Police Station, Crime No.39/2005 under Section 309 I.P.C. at about 6.45 p.m. on 08.01.2005. In Ex.P.11-Dying Declaration/Complaint of Chitra, the Learned Metropolitan Magistrate had made an endorsement that he received the same at his residence at 8.30 a.m. on 09.01.2005. In short, the delay of nearly 15 hours and 45 minutes/16 hours in regard to Ex.P.11 FIR would not affect the credibility of the story of the prosecution, in the considered opinion of this Court.
63.In this connection, it is not out of place for this Court to make a significant mention that P.W.12 (Sub-Inspector of Police), in his evidence, had deposed before the trial Court that he obtained a certificate from the Doctor that Chitra was in conscious and talking state and recorded a statement Ex.P.11 and after receipt of the said statement, came to the Teynampet Police Station and registered a case by lodging printed FIR - Ex.P.12 in Crime No.39/2005 under Section 309 of the Indian Penal Code. Further, P.W.12, in his cross examination, had also stated that the place of occurrence was at an approximate distance of one kilometer from the Police Station and the distance between the Police Station and the Government Royapettah Hospital was approximately 3 kilometers and that the incident occurred on 08.01.2005 at about 3.00 a.m. in the afternoon and he registered the FIR at 4.45 p.m. and further on 10.01.2005 at about 6'o clock in the morning he handed over the case file to the Inspector of Police.
64.Ordinarily, an FIR, Section 161 Cr.P.C. Statement of witnesses, Mahazar, Observation Mahazar, Sketch/Plan of scene of occurrence and other connected records should reach the Magistrate Court concerned at the earliest point of time. In the instant case, though the incident had taken place on 08.01.2005 at about 3.00 p.m. in the afternoon, inasmuch as the FIR was registered at 4.45 p.m. in the evening and the same was received by the Judicial Magistrate on 09.01.2005 at about 8.30 a.m. with a delay of 15 hours and 45 minutes, the same cannot affect the credibility of the prosecution.
65.In so far as the stand taken on behalf of the Appellant/ Accused that the mobile phone of the Appellant was not decoded to show that he made a phone call to the deceased Chitra at 2.00 p.m. on 08.01.2005 and the threat caused was not at all proved, it is to be pointed out that the said non-decoding of the mobile phone of the Appellant to show that he made a phone call to the deceased at 2.00 p.m. on the day of occurrence etc., was of no consequence affecting the case of the prosecution, in the considered opinion of this Court, because of the reason that P.W.14 (Investigating Officer), in his evidence, before the trial Court had crystal clearly stated that on the same day, on 10.01.2005 at about 16 hours in the evening, he arrested the Appellant/Accused at 16/29, Prasanna Vinayagar Koil Street, Pudupettai, Royapettai and recorded his voluntary confession statement in the presence of witnesses Vijayakumar and P.W.11-Kannaian and the admitted portion of confession was marked as Ex.P.17, in and by which, the Appellant/Accused had stated that if he was brought to his room, then, he would produce the cellphone, notebook and the photos kept by him there. Further, even though P.W.14 had stated, in his cross examination, that at the time when he seized the cellphone, he had not recorded what were the incoming and outgoing calls and also he had stated that he had not phoned up to the Simcard company to find out the persons with whom the Appellant /Accused had made contacts through cellphone. Moreover, P.W.14 had also added that on the specified days from the telephone of P.W.2 Baskar's house from whom the telephone calls were received, he had not found out the same and recorded it.
66.In view of the fact that P.W.14 had recovered the cellphone-M.O.4 from the Appellant/Accused based on his confession statement, the non-decoding of the mobile phone to show that he made a phone call to the deceased at 2.00 p.m. on 08.01.2005 etc. was not a material defect on the part of the prosecution in projecting its case.
67.Coming to the stand of the Appellant/Accused that the deceased Chitra was disoriented on 08.01.2005 at about 7.00 p.m. and therefore, her statement could not be recorded by the Metropolitan Magistrate as per endorsement of Ex.P.7 and in this regard, the evidence of P.W.1, P.W.3 and P.W.4 are contra to the effect that Chitra spoke to them about the conduct of the Appellant/Accused, it is to be pointed out by this Court that P.W.1, in his evidence, had only stated that the harassment of the Appellant/ Accused in regard to heckling of Chitra, he only stated that her daughter spoke about the conduct of the Appellant/Accused and had not stated the specific date and time of heckling. But the fact of the matter is that the Appellant/Accused continuously harassed the deceased Chitra by heckling her and because of that reason, she had informed P.W.1 (her father) that she would not go to job and therefore, he himself taken her and left her where she was employed.
68.In regard to the plea taken on behalf of the Appellant/ Accused that since Chitra was disoriented on 08.01.2005 at 7.00 p.m. and therefore, she could not have spoken to P.W.3 as to the reason for setting fire to herself, it is to be pointed out that P.W.3 (Mother), in her evidence, had stated that when she went to the hospital on 08.01.2005 and saw her daughter Chitra at about 6.45 p.m. in the evening, namely between 6.30 p.m. to 7.30 p.m. and at that time, she informed her about the reason for setting fire to herself and at that time in the evening between 6.30 p.m. and 7.30 p.m., it was not correct to state that her daughter was not in conscious state, the said evidence of P.W.3 (mother) was contrary to what was recorded in Ex.P.7 wherein the Duty Assistant Surgeon, Government Royapettah Hospital had recorded clearly that when Magistrate arrived on 08.01.2005 at about 6.45 p.m., the patient Chitra was disoriented and hence, the dying declaration could not be recorded goes to show that P.W.3 had deposed in contra fashion that her daughter deceased Chitra informed her about the conduct of the Appellant/ Accused in between 6.30 p.m. and 7.30 p.m. on 08.01.2005 and consequently her evidence in this regard was not accepted.
69.Likewise, the evidence of P.W.4 (younger sister of deceased Chitra) to the effect that she was informed by her mother that during 6.30 p.m. or 7.30 p.m. in the evening, her sister set fire to herself and therefore, she was proceeding to hospital and accordingly, she also went to the hospital and her sister Chitra spoke, could not be a true one because of the endorsement of the Doctor of Government Royapettah Hospital, Chennai on 08.01.2005 at 7.00 p.m., wherein it was stated that the Magistrate arrived at 6.45 p.m. on 08.01.2005 and that, the patient Chitra admitted in Burns Ward and she was disoriented and therefore, her dying declaration could not be recorded.
70.In view of the fact that this Court had observed that P.W.3 and P.W.4 had spoken contrarily to the effect that Chitra spoke to them when they visited the hospital on 08.01.2005 between 6.30 p.m. to 7.30 p.m. and their evidence could not be accepted. The non-examination of Doctor (Duty Assistant Surgeon Government Royapettah Hospital, Chennai), who recorded the Endorsement Ex.P.7 that Chitra was disoriented and therefore, her dying declaration could not be recorded on 08.01.2005 at 7.00 p.m. does not assume much significance and in fact, gets relegated to the background.
71.In regard to the stand taken on behalf of the Appellant/ Accused that there was no evidence in the present case to show that how the Appellant/Accused got phone number of the deceased in the case, it is to be pointed out by this Court that no such question was put to the P.W.14 (I.O.) and indeed, the evidence of P.W.14 (in his cross examination) goes to show that through M.O.4, it came to light that the Appellant/Accused phoned up to P.W.2 -Baskar's house and talked to Chitra. As such, the contra plea taken on behalf of the Appellant/ Accused as to how the Appellant/Accused got the phone number of the deceased and in this regard, there was no evidence in the present case and the purported omission on the side of prosecution, could not be taken advantage of in favour of the Appellant/Accused, as opined by this Court.
72.In regard to the plea taken on behalf of the Appellant/ Accused that in Ex.P.12 - FIR (given by deceased Chitra) that there was no mention of the date in regard to the purported blackmail made by the Appellant/Accused and also, the non mentioning of the telephone land line number of the house where she was employed, it is to be pointed out by this Court that the contents of Ex.P.2 clearly points out that the Appellant/Accused had kept her photo [taken during her puberty] and blackmailed her and also he had followed her by stating that he loved her. As such, it is quite evident that the Appellant/Accused had followed the deceased Chitra and caused harassment to her on the ground that she loved her and also that, he had blackmailed her by keeping her photo. Moreover, the Appellant/ Accused had also phoned up to her owner Chettiar's house where she was working and also asked her to elope with him and immediately, she snapped the phone and again continuously she received the phone call and when P.W.2 (Chettiar's son) took the phone, without any murmur, the phone got snapped and only that the Appellant/Accused had phoned up to her. These unequivocal averments of Ex.P.12-FIR shows that the deceased Chitra was harassed by the Appellant/ Accused in making the telephone call to the owner of the house where she was employed and further, he also phoned up to her continuously and except the Appellant/Accused, no one had phoned up to her. As such, the omission on the part of the Respondent/Complainant/ Investigating Agency that they had not investigated as to how the Appellant/Accused obtain the phone number of the deceased Chitra (where she was employed) was of no material significance whatsoever affecting the credibility of the prosecution case, in the considered opinion of this Court.
73.In regard to the plea taken on behalf of the Appellant/ Accused that in Ex.P.6-Dying Declaration of deceased Chitra, there were only general allegations made against the Appellant/Accused in regard to the purported harassment, it is to be pointed out that in Ex.P.6 - Dying Declaration which was recorded at 9.45 a.m. on 09.01.2005 by the Learned VII Metropolitan Magistrate, George Town, Chennai, the deceased Chitra had crystal clearly mentioned about the conduct of the Appellant/Accused who compelled her to love him by keeping her photos and threatened her. Further, in the said Dying Declaration, she had also stated that if she had not loved him, he would murder her parents and continuously phoned up to the house where she was employed and threatened her and therefore, out of fear, she set fire to herself at Chettiar's house at about 3.00 p.m. in the afternoon of 08.01.2005.
74.In so far as Ex.P.11-second Dying Declaration of Chitra, she had also stated about the Appellant/Accused calling her over the telephone in the house of Chettiar where she worked and in fact, the Appellant/Accused had asked her to elope with her, when she took up the phone/attended the call and immediately she snapped the phone and again continuously she received the calls and at that time, the phone was taken by P.W.2-Baskar (Chettiar's son), without any murmur, the connection got disconnected and only the Appellant/ Accused had phoned up etc. Further, as seen from Ex.P.11-Dying Declaration, the deceased Chitra felt that only when she was alive the said Appellant/Accused was causing harassment to her and therefore, she took the water bottle (which contained kerosene already purchased by her) from the house of Chettiar and went to the backside staying room of Chettiar's house on 08.01.2005 at about 3.00 p.m. and set fire to herself by pouring kerosene. A conjoint reading of Ex.P.6 contents and Ex.P.11 unerringly point out that there were no material inconsistencies between the two dying declarations and as such, the contra plea taken on behalf of the Appellant/Accused is not accepted by this Court.
75.In regard to the plea taken on behalf of the Appellant/ Accused that P.W.1 in his evidence had not stated anything about the presence of P.W.3 and P.W.4 at the hospital on 08.01.2005, it is to be pointed out that the same is not a serious omission affecting the trustworthiness of the prosecution case, as opined by this Court.
76.In regard to the stand taken on behalf of the Appellant/ Accused as to how the photos of the deceased Chitra had come into the hands of Appellant/Accused and there was no investigation by the Respondent/Complainant in this regard, it is to be pointed out that P.W.14 (Investigating Officer), in his cross examination, had clearly stated that the photos-M.O.7 were taken at a particular function and the said photos were taken by deceased Chitra along with her friends. In fact, in the absence of any question put on the side of Appellant/Accused, to the Investigating Officer, as to how the said photos of the deceased Chtitra came into the hands of the Appellant/ Accused, the alleged omission, in this regard, on the side of Respondent/Complainant cannot be raised as an issue.
77.While dealing with the plea projected on the Appellant/ Accused that the deceased Chitra died only in the house of P.W.2 where she worked and the house of P.W.2 was only a private dwelling house and for the private dwelling house, Sections 3 and 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 would not apply and further, the term 'at any place' specified in Section 3 of the Act (44 of 1998) would not apply to the present case on hand. At this stage, this Court aptly points out the decision of this Court in Basheer Ahamed and others V. State rep. By the Inspector of Police, W.13, All Women Police Station, Washermenpet Circle, Chennai 21, 2006 (4) CTC 374 at page 376, whereby and whereunder, in paragraph 8, it is observed and laid down as follows:
But in this case, it is found that Section 3 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 specifically prohibits the harassment of woman at any place. The Preamble would also read that the harassment of woman in any place in the State of Tamil Nadu is prohibited. When there is no specific punishment contemplated for the violation of Section 3 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998, the said Section will have to be read along with Section 4 of the said Act which is the compendious Penal Provision. A conjoint reading of Sections 3 and 4 of the said Act would give the meaning that at any place means wherever the occurrence had taken place. If separate punishment has been contemplated for the offence under Section 3 of the Said Act, then as rightly pointed out by the learned counsel for the petitioner, or any other place found in Section 4 would mean one of the places as adumbrated therein. But here, if we read conjointly both the aforesaid Sections, it will cover the occurrence wherever it takes place.
78.In view of the fact that Section 3 of the Tamil Nadu Prohibition of Harassment of Woman Act specifically prohibits the harassment of woman at any place and a conjoint reading of Sections 3 and 4 unerringly point out that 'at any place' means wherever, the act/incident had taken place, in the considered opinion of this Court. Viewed in that perspective, in the present case on hand, the victim Chitra even though she had set fire to herself by pouring kerosene on 08.01.2005 at 3.00 p.m. in the afternoon, in the dwelling house of P.W.2 (Chettiar's house), the said house squarely comes within the term 'any place' and as such, the contra plea taken on behalf of the Appellant/Accused is out rightly rejected by this Court.
79.Before the trial Court, the arguments of both sides were heard and the first charge was altered from Section 305 I.P.C. and Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 to Section 305 I.P.C. or in the alternative under Section 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998. Accordingly, the first charge was altered and the same was read over and explained to the Appellant/Accused, who pleaded not guilty. In fact, the Appellant/Accused was provided with an opportunity as to whether he had intended to recall and cross examine any of the prosecution witnesses already examined for which, he replied that no witnesses were to be recalled and cross examined.
80.It is not in dispute that Chitra succumbed to burn injuries on 10.01.2005 and the Investigation Officer submitted the charge sheet against the Appellant/Accused in respect of the offences under Section 305 I.P.C. and Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998 and under Section 506(1) I.P.C. On that basis two charges, (i) under Section 305 I.P.C. or in the alternative under Section 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act and (ii) under Section 506(1) I.P.C. were framed against the Appellant/Accused.
81.The evidence of P.W.1 (Father of deceased Chitra) and P.W.3 (Mother of the victim) would clearly point out that the Appellant/ Accused followed Chitra and harassed her. As a matter of fact, P.W.1 (Father of the deceased) reprimanded the Appellant/Accused by informing him that he should desist from doing so. However, the Appellant/Accused often compelled Chitra to love him. On 08.01.2005 the Appellant/Accused contacted the deceased Chitra by calling her over the phone and insisted her to come and to elope with him from the house. Fearing the same, the deceased Chitra went to the backyard of P.W.2's house (where she had a rest place) and poured kerosene over her body and set fire herself at about 3.00 p.m. Soon on hearing the screaming noise of victim Chitra, P.W.2 Baskar (house owner's son where Chitra was employed) and the driver Jaganraj (P.W.5) and another rushed to there place and from there took the victim to the Royapettah Government Hospital where she was admitted and treated. Upon receipt of information about the admission of Chitra, P.W.12 (Sub-Inspector of Police) rushed to the hospital and obtained the complaint statement from Chitra in the presence of P.W.13 - Dr.Dhamodara Raj. Ex.P.11 was the complaint given by Chitra, which was reducing into writing by P.W.12 (Sub-Inspector of Police). A perusal of the contents of Ex.P.11-Complaint categorically mentions that the victim had stated to P.W.12 that the Appellant/ Accused quite often followed her stating that he was in love with her. In fact, on 08.01.2005 when Chitra was at Chettiar's house (where she was employed), the Appellant contacted her over phone and asked her to come along with him for elopement. Besides this, the Appellant/ Accused continuously gave phone calls to Chitra's employer's house and her employer attended the phone call and then the call was disconnected without any conversation. Fearing that, the Appellant would cause mischief to her and also being afraid of the fact that it would defame her parents reputation, the deceased came to a conclusion that if she was to live alone, then, the Appellant would cause harassment to her and therefore, she decided to end her life and set fire to herself by pouring kerosene.
82.This Court had perused Ex.P.11- Statement of Chitra and in fact, the contents of said statement speak of the harassment made by the Appellant/Accused by asking her to come and elope with him and further, he phoned up to the house of P.W.2 repeatedly etc. Fearing his continued harassment, she went to the backyard of the house of P.W.2 and took up the bottle which contained kerosene already purchased by her and at about 3.00 p.m. on 08.01.2005 she poured kerosene and set fire to herself. Indeed, P.W.12, after recording Ex.P.11-Statement from Chitra, had obtained the right hand thumb impression since her left hand thumb was burn and also obtained Ex.P.14- Certificate from Doctor (P.W.13) to the effect that the patient Chitra was fully conscious and well oriented to furnish statement. P.W.12 had registered Ex.P.12 - FIR in the Police Station based on Ex.P.11 - Statement of Chitra.
83.It cannot be forgotten that when P.W.9, the VII Metropolitan Magistrate went to the hospital, he found Chitra was unconscious and on the next day morning, when she was conscious, P.W.12 gave a requisition to the Metropolitan Magistrate, based on which, P.W.9 went to the Royapettah Hospital at about 9.00 a.m. and recorded the Dying Declaration of victim Chitra and at the time, when P.W.9 recorded the Dying Declaration of Chitra, Duty Doctor - P.W.6 was present, who gave a certificate at the commencement of Dying Declaration and gave another certificate at the conclusion of her declaration to the effect that the patient was conscious and well oriented throughout. Significantly, P.W.9 got subjectively satisfied as to the mental condition of Chitra viz., as to whether she was in a fit condition to furnish Dying Declaration by asking her questions and eliciting answers and only after that, he recorded the Dying Declaration of Chitra viz., Ex.P.6 and the certificate given by P.W.6 (Doctor) was marked as Ex.P.2 and Ex.P.2(A).
84.In the present case, no motive was suggested on the part of the Appellant/Accused as to why P.W.1 and P.W.3 (Father and Mother of deceased Chitra) should rope in the Appellant/Accused in the case. In fact, P.W.1 had, in his cross examination, stated that it was wrong to state that his daughter and Appellant/Accused were loving each other. It is to be noted that only the Appellant/Accused was actually in love with the victim Chitra and in fact, she had not even reciprocated her love to him. That apart, the victim, prior to her suicide, was subjected to teasing/harassment by the Appellant/Accused who repeatedly followed her and asked her to love him by keeping the photographs of herself (taken during her puberty ceremony) and added further, he contacted her over the phone at P.W.2's house and asked her to come out and to elope with him. He also went to the extent that if she failed to respond, he would murder her parents. These acts/conducts of the Appellant/Accused come squarely within the definition of Section 2(a) harassment which means, any indecent conduct or act by a man which causes or is likely to cause intimidation, fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force, as opined by this Court. Because of the continued harassment caused by the Appellant/Accused, the victim Chitra went to the extent of self immolating herself, as stated before P.W.9, the Metropolitan Magistrate at the time of furnishing her dying declaration. Really speaking, the contents of Ex.P.6 and P.11 Dying Declarations of Chitra given to P.W.9 (Metropolitan Magistrate) and to P.W.12 (Sub-Inspector of Police), which are in the normal course and they are of cogent, coherent and convincing one, in the considered opinion of this Court.
85.It is to be pointed out that in order to bring home the offence under Section 305 of the Indian Penal Code, the prosecution is to establish (i) that the victim of death was under 18 years of age or insane or delirious or an idiot or intoxicated; (ii) that the death had occurred by reason of suicide; (iii) that the accused abetted the suicide. In fact, the prosecution ought to lead evidence to prove all the aforesaid essential requirements.
86.In the light of foregoing discussions and on an overall assessment of the present facts and circumstances of the case in an encircling manner, this Court holds that the acts/conducts of the Appellant/Accused, in harassing the victim Chitra, were the direct and proximate cause, which ultimately drove her to self-immolate herself by pouring kerosene and committed suicide, which squarely come within the ingredients of Section 4-B harassment suicide and as such, the charge, in respect of the Appellant/Accused under Section 4-B of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998, was proved by the Respondent/Complainant/Prosecution beyond all reasonable doubt. In fact, he was very rightly convicted and sentenced to undergo Rigorous Imprisonment for a period of 3 years and further, he was directed to pay a fine of Rs.50,000/-, in default of which, he was directed to undergo Rigorous Imprisonment for a period of 2 years. Further, in the trial Court, out of the fine amount of Rs.50,000/-a sum of Rs.20,000/- was ordered to be paid to P.W.1 and P.W.3 as compensation, in terms of ingredients of Section 357 Cr.P.C.
The Award of Compensation:
87.Coming to the plea of 'Award of Compensation' by a Court of Law to an aggrieved/affected/dependents of the victim, this Court points out that a Court of Law can award compensation to and in favour of a person, who had suffered loss or injury by the offences committed by an Appellant/Accused. It is to be borne in mind that a power of Court to award compensation is not incidental to other sentences but it is in addition thereto. As a matter of fact, Section 357 Cr.P.C. has its own inbuilt message. By and large, the award of compensation by a Court of Law is a measure of reacting appropriately to the crime committed as well of reconciling the victim with the offender.
88.As a matter of fact, the compensation should be awarded liberally. At this stage, this Court aptly recalls and recollects the decision of the Hon'ble Supreme Court in Jacob George (Dr.) V. State of Kerala, 1994 SCC (Cri) 774, wherein, it was recommended to all Courts to exercise the power under Section 357 Cr.P.C. liberally so as to meet the ends of justice in a better way. Also that, the direction to pay compensation under Section 357(3) Cr.P.C. is based on the assumption of civil liability on the part of individual who committed the offence to redress the victim or his dependents by payment of compensation as per decision of the Hon'ble Supreme Court in Arun Garg V. State of Punjab, (2004) 8 SCC 251 (261). In awarding such compensation, a Court of Law is to take into account the numerous factors such as, (i) the paying capacity of the Appellant/ Accused to pay; (ii) gravity of the crime; (iii) nature of injury suffered; and (iv) other appropriate factors. Any person is entitled to compensation for the loss or injury caused by the offence and it includes the 'Wife, Husband, Parent and Child of the deceased victim'.
89.It is brought to the notice of this Court that the Appellant/ Accused had remitted a total sum of Rs.50,000/- before the trial Court on 24.08.2006 [in which P.W.1 and P.W.3 were entitled to get Rs.20,000/- as compensation]. Taking into the gravity of the offence committed by the Appellant/Accused, the nature of injury suffered by P.W.1 and P.W.3 (Parents of the deceased victim Chitra) and other relevant factors, this Court orders the balance fine amount of Rs.30,000/- paid by the Appellant/Accused, to be converted as compensation amount and further directs to pay the same to P.W.1 and P.W.3 (Parents of the deceased victim Chitra). Further, the Respondent/Complainant is directed to take necessary expedient steps by filing necessary payment out Application before the trial Court in terms of Criminal Rules of Practice and obtain necessary orders (pursuant to the direction issued by this Court) and to hand over the said amount of Rs.30,000/- (Rupees Thirty Thousand Only) to the Parents of the deceased Chitra, as expeditiously as possible.
90.In the result, the Criminal Appeal is dismissed. The trial Court is directed to take appropriate steps to immure the Appellant/Accused in prison so as to serve the remaining period of sentence.
11.08.2014
Index : Yes
Internet : Yes
Sgl
M.VENUGOPAL,J.
Sgl
To
1.The Learned Sessions Judge,
Mahila Court, Chennai.
2.The Inspector of Police (L & O),
E-3 Teynampet Police Station,
Chennai 600 006.
JUDGMENT IN
Crl.A.No.457 of 2006
11.08.2014