Madras High Court
Marimuthu vs State Rep. By on 31 October, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.10.2018
CORAM:
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
Criminal Appeal (MD)No.477 of 2006
and
M.P.(MD)Nos.1 and 2 of 2006
Marimuthu ... Appellant
Vs
State rep. by
The Inspector of Police,
Kadayam Police Station,
Tirunelveli District. ... Respondent
(Crime No.119/02)
Prayer: Criminal Appeal filed under Section 374 of the Criminal
Procedure Code, reverse the Judgment passed in S.C.No.202 of 2004,
dated 26.10.2006 on the file of the learned District and Sessions
Judge, Magalir Court, Tirunelveli.
For Appellant : Mr.K.Prabhu
For Respondent : Mr.R.Prabhu Ramachandran
Government Advocate (Crl.Side)
http://www.judis.nic.in
2
JUDGMENT
This Criminal Appeal is preferred by the appellant/accused against the judgment of conviction and sentence passed by the learned District and Sessions Judge, Magalir Court, Tirunelveli wherein the learned trial Court convicted and sentenced the appellant/accused for the offences under section 304(B) to undergo 7 years rigorous imprisonment, and for the offences under section 306 of IPC to undergo 7 years rigorous imprisonment and fine of Rs.1000/- in default to undergo 3 months rigorous imprisonment in S.C.No.202 of 2004 dated 26.10.2006.
2.Brief case of the appellant/accused:
The prosecution case is that the accused and deceased Jayarani got married on 21.2.2002 at Pulavanoor. At the time of marriage Rs. 10,000/- cash and jewels worth of Rs.15,000/- was given as dowry. The appellant/accused had suspected her fidelity and demanded Rs. 10,000/- and 10 sovereigns of jewels and harassed her, whereby she committed suicide by consuming poison on 18.6.2002 (within 7 years of marriage). Previously, on 31.5.2002 the deceased had given a complaint Exhibit P6 to All Women Police Station, Tenkasi and enquiry was conducted on 4.6.2002 and compromise as effected since the http://www.judis.nic.in 3 deceased Jayarani wanted to live with her husband and not willing any action to be taken by the police in her petition. On 17.06.2002 PW5 came to the house of PW4 father of the deceased and informed that the deceased was admitted at PW2 Dr.Krishnamoorthy’s Hospital and that the deceased was brought by her father in law and mother in law alleging that she had consumed Oleander seeds and PW2 Doctor had washed her stomach and thereafter referred to Government Hospital where she died. PW1 VAO who had given the complaint Exhibit-P1. PW11 Sub Inspector of Police received the complaint and registered FIR Exhibit P7 in Crime No.119 of 2002. PW8 RDO conducted inquest on the dead body of the deceased and examined the witnesses Arunachala Nadar, Marimuthu, Palavesamuthu VAO and came to the conclusion that she died of dowry harassment and sent his inquest report Exhibit-P5 to Deputy Superintendent of Police, Ambai. PW9 Head constable identified the dead body to the doctor for postmortem and thereafter handover to the parents. PW12 Deputy Superintendent of Police taken up the case for investigation and went to the place of occurrence and prepared observation mahazar Exhibit P4 in the presence of PW 7 Gnanakumar in which PW 6 Perumal’s signature Exhibit-P3 was obtained and drawn a rough sketch Exhibit P8. PW15 the doctor who had conducted autopsy of the deceased and found a http://www.judis.nic.in 4 lacerated injury from left side to right side of the chin measuring 1x15 cm , a lacerated injury on the neck in ‘v’ shape measuring 1x13cm and lacerated injury from one arm pit to another arm pit measuring 1x35 cm, another lacerated injury over her chest measuring 1x25 cm and lacerated injury over her left chest measuring 1x15 cm, an abrasion over he left hand elbow measuring 4x3 cm abrasions over her left leg measuring 3x2 cm and 3 abrasions over her right leg measuring 6x4 cm and her stomach contents were sent for chemical examination and no poison was detected. Requisition to conduct postmortem by the RDO Exhibit-P4 Postmortem certificate is Exhibit-P10. Chemical examination report is Exhibit-P11. PW16 Deputy Superintendent of Police taken up the case for further investigation, filed a charge sheet and altered sections 306 and 304(B) of IPC. Alteration report is Exhibit P12. On 17.7.2002 the appellant/ accused was arrested at 10.00 AM and sent for judicial custody.
3.The learned trial Court framed the charges against the appellant/accused under sections 306, 304(B) of IPC. The appellant /accused denied the charges.
4.During the trial, the prosecution examined PWs1 to 17, marked http://www.judis.nic.in 5 Exhibits-P1 to 12 and no witnesses examined on the side of the appellant/accused.
5.After the trial, on appreciating the material available on record the trial Court convicted the appellant/accused for the offences under sections 306, 304(B) of IPC and sentenced him to undergo 7 years of rigorous imprisonment and fine.
6.Aggrieved over the same, the appellant/accused preferred this criminal appeal.
7.The learned counsel for the appellant/accused submits that the Court below ought to have seen that PW4 who alone speaks about the occurrence and not been corroborated by any other evidence in which case the prosecution had failed to establish any demand of dowry or harassment by the accused.
8.The learned counsel for the appellant/accused submits that even after according to the prosecution the allegation that the deceased was 3 months pregnant at the time of marriages and subsequently some days after the marriage the child was aborted was http://www.judis.nic.in 6 not at all proved by the prosecution.
9.The learned counsel for the appellant/accused submits that the Court below ought to have seen that the deceased had categorically stated to the PW10 the Sub Inspector of Police, All Women Police Station, Tenkasi during the enquiry based on the complaint dated 04.06.2002 is that the accused herein had not at all demanded any dowry and consequently harassed her and it was only a domestic quarrel and not a dowry demand.
10.The learned counsel for the appellant/accused submits that the Court below ought to have seen that PW1 Doctor who had initially treated the deceased had also stated that he has not noticed any external injuries when she was admitted at his hospital on 17.06.2002.
11.The learned counsel for the appellant/accused submits that the Court below seen the PW4 the father of the deceased also improved the case at every stage and therefore any reliance to his evidence is unsafe in the interest of justice more particularly when the deceased and the accused had married against their wish as stated by him.
http://www.judis.nic.in 7
12.The learned counsel for the appellant/accused submits that the Court below ought to have seen that the original post-mortem certificate was not marked in this case and only carbon copy of the same was marked in which case the prosecution has failed to establish the cause of death.
13.The learned counsel for the appellant/accused submits that the Court below ought to have seen that according to prosecution the deceased is alleged to have committed suicide consuming poison whereas PW15 the doctor who conducted the post-mortem had also not able to notice any contents of the stomach or any vista preserved.
14.The learned counsel for the appellant/accused submits that according to the prosecution the deceased was aborted by Dr.Rani according to PW4 the father of the deceased and by Dr.Krishnamani according to Investigating Officer. However both of them were not examined for the reasons best known to the prosecution.
15.The learned counsel for the appellant/accused submits that the charges and conviction under Sections 304(B) and 306 of IPC http://www.judis.nic.in 8 cannot together for the simple reason both are contrary to each other and on this ground alone the judgment of the lower Court has to be set aside.
16.The learned counsel for the appellant/accused submit citations for supported of his submissions:
1) (2011)3 MLJ (Crl) 829
2) (2011)1 MLJ (Crl) 547 SC
3) 2016 STPL 14083 SC
17.The learned counsel appearing for the respondent supported the findings of the trial Court and sought for dismissal of the appeal.
18.I heard Mr.K.Prabhu, learned counsel for the appellant and Mr.R.Prabhu Ramachandran, learned Government Advocate (Criminal Side) for the respondent and perused the entire materials available o record.
19.The case of the prosecution is that the deceased consumed poison and committed suicide for suspecting her fidelity and also demand of dowry. To prove the charge against the appellant/accused http://www.judis.nic.in 9 except PW4, all other witnesses failed to support the case of the prosecution.
20.It is seen from the evidence of PW 4 that he deposed about the occurrence of previous quarrel and consuming Oleander seeds by the deceased but none of the witnesses corroborated the previous quarrel and demand of dowry.
21.As a matter of fact, the allegation made by the prosecution that the deceased was 3 months pregnant at the time of marriage and subsequently she was aborted by Dr.Rani according to PW4, the father of the deceased and by Dr.Krishnamani. However both doctors were not examined except the oral averment of PW4. Further PW1 doctor, who initially treated the deceased stated in his evidence that he has not notice any external injuries when she was admitted at his hospital on 17.6.2002. Therefore PW4 father of the deceased improved the case of the prosecution at every stage without supported by material particulars.
22.In order to properly comprehend the scope and ambit of Section 306 of IPC, it is important to carefully examine the basic http://www.judis.nic.in 10 ingredients of Section 306 of IPC. The said section is reproduced as under:-
"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."
23.As per the Hon'ble Supreme Court judgment, the word "suicide" itself is nowhere defined in the 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.
"Abetment" 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--
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 place in http://www.judis.nic.in 11 pursuance of that conspiracy, and in order to the doing of that thing; orThirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing."
Explanation 2 which has been inserted along with Section 107 of CPC 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 facilitates the commission thereof, is said to aid the doing of that act."
24.The learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh v. State of M.P. 1995 Supp (3) SCC 731. In Mahendra Singh, the allegations levelled were as under: (SCC p. 731, para 1) "1. ... My mother-in-law and husband and sister-in- law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."
http://www.judis.nic.in 12
25.The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 of IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law.
26.The learned counsel also placed reliance on another judgment of this Court in Ramesh Kumar v. State of Chattisgarh (2001) 9 SCC
618. In this case, a three-Judge Bench of this Court had an occasion to deal with a case of a similar nature.
In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Court in para 20 has examined different shades of the meaning of "instigation". Para 20 reads as under: (SCC p. 629) "20. Instigation is to goad, urge forward, provoke, incite or encourage to do `an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the http://www.judis.nic.in 13 consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
27.In State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be http://www.judis.nic.in 14 satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
28.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 words "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 other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
29.Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 of IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which http://www.judis.nic.in 15 led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
30.In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
31.When I carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under Section 306 of IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under Section 306 of IPC against the appellant is quashed and all proceedings pending against him are also set aside. http://www.judis.nic.in 16
32.In the result:
a) This Criminal Appeal is allowed and thereby the conviction and sentence imposed on the appellant in S.C.No. 202 of 2004, dated 26.10.2006, on the file of the learned District and Sessions Judge, Magalir Court, Tirunelveli is set aside;
b) The appellant/accused is acquitted from all the charges and the fine amount if any paid by the appellant/accused shall be refunded by the trial Court;
c) The bail bond if any executed by the appellant/accused shall stands cancelled.
31.10.2018
Note:Issue order copy on 06.03.2019
vsv
Index : Yes
Internet : Yes
To
The District and Sessions Judge,
Magalir Court, Tirunelveli.
http://www.judis.nic.in
17
M.V.MURALIDARAN, J.
vsv
Pre-delivery judgment made in
Criminal Appeal (MD) No.477 of 2006
and
M.P.(MD)Nos.1 and 2 of 2006
31.10.2018
http://www.judis.nic.in