Madras High Court
N.Manoharan vs State Rep. By on 11 July, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.No.442 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.07.2022
CORAM
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.442 of 2019
N.Manoharan ... Appellant
Vs.
State Rep. by
The Deputy Superintendent of Police,
Avinashi Sub Division,
Tiruppur District,
Crime No.672 of 2012. .. Respondent
PRAYER : This Criminal Appeal has been filed under Section 374 (2)
Cr.P.C. to allow the appeal, set aside the judgment passed against the
appellant on 28.06.2019 in S.C.No.127 of 2015 on the file of Magalir
Neethimandram (Fast Track Mahila Court), Tiruppur and acquit him from
the charge.
For Appellant : Mr.Thiyagarajan. A
For Respondent :Mr.S.Vinoth Kumar
Government Advocate (Crl.side)
JUDGMENT
The sole accused who was indicted and found guilty of charges under Section 306 IPC, by the Magalir Neethimandram (Fast Track Mahila Court), Tiruppur, in S.C.No.127 of 2015 is before this Court by way of an appeal. 1/12 https://www.mhc.tn.gov.in/judis Crl.A.No.442 of 2019
2.The case of the prosecution is that on 18.07.2012 at about 11 a.m., when the deceased Thulasimani was alone at home, the accused who is her husband came home in an inebriated condition. Upon questioning, the accused replied that he will drink like that only and quarreled with the deceased. Again, he went out and came back fully drunk at 13.30 hours and when the deceased went to serve him food, she asked him already you are drunk and now you have further drunk and come, should I live or die and in response to the same, the accused had said to have stated that you better die so that I will drink and be happy. Unable to bear the said words, it is the case of the prosecution that at about 14.00 hours, the victim set herself on fire and immediately, the accused and the neighbours, attempted to douse the fire by pouring water on her and she was admitted in the Government hospital at Tiruppur for treatment. She succumbed to the burn injuries at about 22.15 hours on the same day and hence the charge.
3.The case was taken up for investigation by PW12 and after completing investigation, he laid a charge sheet, which was taken on file by the Judicial Magistrate, Avinashi, as PRC No.3 of 2015 and after the appearance of the accused and furnishing of the copies as per Section 207 2/12 https://www.mhc.tn.gov.in/judis Crl.A.No.442 of 2019 Cr.P.C., the learned Judicial Magistrate committed the case to the Principal Sessions Court, Tiruppur, upon which the case was taken on file as S.C.No.127 of 2015 and was thereafter made over to the Trial Court. After perusing the materials on record, the Trial Court framed the charge under Section 306 IPC. Upon questioning, the accused denied the same and stood trial. In order to bring home the charges, the prosecution examined PW1 to PW12 and marked Exs.P1 to P12 and also produced M.O.1 to M.O.3. Upon being questioned about the material evidence on record, the accused denied the same and thereafter, no evidence was let in on behalf of the defence. The Trial Court thereafter proceeded to hear the learned Special Public Prosecutor for the State and the learned counsel for the accused and by judgment dated 28.06.2019, found the accused guilty for the offences under Section 306 IPC and sentenced him to undergo rigorous imprisonment for 10 years and also imposed a fine of Rs.10,000/-, in default to pay the fine, to undergo rigorous imprisonment for a period of one year. Aggrieved by the same, the present appeal is filed before this Court.
4.Heard the learned counsel for the appellant and the learned Government Advocate (Crl.Side) on behalf of the respondent. 3/12 https://www.mhc.tn.gov.in/judis Crl.A.No.442 of 2019
5.The learned counsel for the appellant firstly would submit that in this case, the charge itself clearly mentions about two occurrences, the accused coming home in an inebriated condition at about 11 a.m. and thereafter going out and once again coming home drunk under which the occurrences which are supposed to have instigated the suicide is said to have taken place. In this regard, Ex.P6 dying declaration which is recorded by PW10 Sub Inspector himself does not support the charge and even as per the dying declaration, the deceased only mentioned that unable to bear the torture, she had set herself on fire. It is in this background, the learned counsel would submit that on a reading of the Observation Mahazar, it is clear that there was no spilling of Kerosene on the floor of the Kitchen, in which the alleged fire is said to have caught on the victim and no match box was also recovered by the prosecution. This apart, it may be seen that at the earliest point of time in the RDO enquiry, the parents of the victim had categorically deposed that when the deceased and her husband were living with their parents, the deceased was unable to live as a joint family and therefore, they have initially taken a separate house near to the parents house of the deceased. Sometimes, they used to live in her parents house 4/12 https://www.mhc.tn.gov.in/judis Crl.A.No.442 of 2019 and therefore, when they were in their parents house, this had happened. In the RDO enquiry, the parents of the deceased themselves stated that it is not an attempt of suicide. Therefore, he would submit that coupled with the statement made during the RDO Enquiry and Ex.P9 report of the Doctor who treated the victim, namely, PW5 Dr.Saravanan, would show that the deceased had confirmed that she caught fire from the stove only. PW5 further also categorically states that at about 6 p.m. on the same day dying declaration was recorded by the learned Judicial Magistrate. In the strength of the said statement of PW5, the prosecution has totally burked the enquiry, dying declaration recorded by the learned Judicial Magistrate and the learned Judicial Magistrate was also not examined as witness in this case. Therefore, this is a case where unable to come to the terms with the death of their daughter, PW1 and 2 had belatedly turned the tables and a dying declaration was shown to be recorded by the Sub Inspector of Police, while the real fact has been that she caught fire while cooking and on account of the said accident, she died. Therefore, adverse inference has to be drawn on the prosecution for not tabling the evidence on record. Therefore, he would submit that in the absence of the same, the accused is entitled for acquittal and he would also further submit that a perusal of the 313 statement would 5/12 https://www.mhc.tn.gov.in/judis Crl.A.No.442 of 2019 clearly show that even the evidences were not properly put on record to the accused and explanation was not sought for. Therefore, this would also be a ground for acquittal of the appellant in this case.
6.Per contra, the learned Government Advocate (Crl.Side) even though does not have any explanation for not examining the Judicial Magistrate on record, but however would submit that PW10 has also recorded the statement of the deceased which can be treated as dying declaration coupled with the fact that there was an earlier incident also, in which the deceased has given a complaint that the accused used to beat her every day by coming home in an inebriated condition. Therefore, unable to bear the torture, the deceased committed suicide. Therefore, charge under section 306 IPC is made out and therefore, the Trial Court has rightly convicted the appellant.
7.I have considered the rival submissions made by either side and perused the material records of this case. In this case, as rightly pointed out by the learned counsel for the appellant, charges framed against the accused are that he was drunk and came to the house and again went out, came 6/12 https://www.mhc.tn.gov.in/judis Crl.A.No.442 of 2019 further drunk during which clearly the occurrences had taken place which was the alleged proximate cause and instigation for the deceased to commit suicide. Admittedly, the sole evidence on record in this case being the statement recorded by PW10 Sub Inspector itself does not support the prosecution version. A plain reading of Ex.P6 statement of the deceased, which is alleged to have been recorded by PW10 in this case, even for a moment, taking it on the face value, only discloses that the deceased took the extreme step not wanting to live further with the appellant who is a drunkard. Therefore, a careful and cumulative reading of the said statement recorded by PW10 also falls short of either any instigation i.e., the positive act of enticing the victim to commit suicide or instigating by forcing to a situation where the victim has no other go, but to commit suicide. Therefore, even taking the said statement as having evidentiary value, I am unable to come to the conclusion that the prosecution has made out a charge under Section 306 IPC in this case. Further, the very statement is doubtful because in the earlier point of time, in the RDO enquiry of the witnesses including the parents of the deceased have stated that she did not commit suicide, however, got fire from the stove only. As stated by the learned counsel, yet another important factor that if this is a case of pouring 7/12 https://www.mhc.tn.gov.in/judis Crl.A.No.442 of 2019 kerosene on oneself, certainly spilling of kerosene will be there in the scene of occurrence, Observation Mahazar is otherwise as there was categorically no spill of kerosene on the floor. Even a balance piece of cloth, namely, half burnt green colour polyester saree with red colour floral design and maroon colour blouse with green colour border, which are produced by the prosecution as MOs 2 and 3, did not smell of kerosene and the said fact is also mentioned in the Observation Mahazar. A reading of the Seizure Mahazar also demonstrates the same. That apart, PW5 Doctor who treated the victim also categorically states that the victim told him that she got fire while cooking. To top it all, PW5 had categorically deposed that on the same date at 6.00 p.m., the learned judicial magistrate had recorded the dying declaration of the victim. For the reasons best known to the prosecution, the said dying declaration recorded by the learned judicial magistrate is not at all produced before the court. The learned judicial magistrate was also not examined as witness. The prosecution has burked the best evidence available to it and therefore, in this case, as rightly pointed out by the learned counsel for the appellant, adverse inference has to be drawn that the said dying declaration ought to have contained statements that she did not commit suicide but accidentally caught fire and therefore, 8/12 https://www.mhc.tn.gov.in/judis Crl.A.No.442 of 2019 the prosecution has burked the same. In view of the said action of the prosecution in not bringing on record the dying declaration recorded by the learned Judicial Magistrate and Ex.P9 report recorded by the RDO during the enquiry, I am of the view that the prosecution has miserably failed to bring home the charge under Section 306 IPC and as such, the accused is entitled for the benefit of doubt and therefore, the findings of the Trial Court require interference in this case and accordingly, I acquit the accused for the charge under Section 306 IPC.
8.Even to consider the matter further, since the victim wife had unfortunately committed suicide and since there is evidence on record that on an earlier occasion also the petitioner had come in an inebriated condition and picked up quarrel and hit her, even to consider the conduct of the accused for the offence under Section 498 A, firstly, there was no specific charge which was framed against the petitioner. Even going a step further, since Section 498 A is a lesser offence, even then, since in this case the very case of the prosecution is very shaky, that the occurrence is said to have taken place in the house of PWs 1 and 2 itself and considering the fact that even though the accused had hit on drunken mood, he was to still co- 9/12 https://www.mhc.tn.gov.in/judis Crl.A.No.442 of 2019 operating with the victim and set up a separate residence and was also residing in the in-laws house. I am unable to convict the accused for the offence under Section 498 A, especially, when the prosecution has not brought on record the clear and categorical version of the deceased victim, which she is said to have spoken before the learned Judicial Magistrate. Therefore, in the absence of clear and categorical evidence, I am unable to convict the accused for the offence under Section 498 A also. Therefore, inspite of this Court scanning the evidence that this should not go into one more story of burning of stove, I am unable to find any evidence to convict the petitioner/accused in this case and accordingly, the petitioner is entitled to the benefit of doubt and the criminal appeal is allowed.
9.Accordingly, the criminal appeal is allowed and the conviction and sentence imposed by the Magalir Neethimandram (Fast Track Mahila Court), Tiruppur, in S.C.No.127 of 2015 dated 28.06.2019 is set aside. Fine amount paid, if any, is ordered to be refunded.
Index : Yes/no 11.07.2022
Internet : Yes/no
Speaking Order/Non-Speaking Order
sli
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Crl.A.No.442 of 2019
To
1. Magalir Neethimandram,
(Fast Track Mahila Court), Tiruppur.
2.The Public Prosecutor
High Court, Madras.
3. The Deputy Superintendent of Police,
Avinashi Sub Division,
Tiruppur District,
Crime No.672 of 2012.
11/12
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Crl.A.No.442 of 2019
D.BHARATHA CHAKRAVARTHY,J.
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Crl.A.No.442 of 2019
11.07.2022
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