Madras High Court
Samuel vs State By on 30 August, 2016
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.08.2016 (Judgment reserved on 11.08.2016) CORAM: THE HONOURABLE MR.JUSTICE R.SUBBIAH Crl.A.No.189 of 2011 1. Samuel 2. Amirthakani 3. S.Rathinaraj 4. S.Thangaraj .. Appellants Vs. State by Assistant Commissioner of Police, Thirumangalam Range, Chennai. (Crime No.2283/2005 of K.10 Koyambedu Police Station, Chennai) .. Respondent Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment dated 11.03.2011 in S.C.No.324 of 2007 on the file of the VI Additional Sessions Court, in-charge of Mahila Court, Chennai. For appellants : Mr.G.Karthikeyan For respondent : Mr.P.Govindarajan, Addl.P.P. JUDGMENT
This Criminal Appeal is filed against the judgment dated 11.03.2011 in S.C.No.324 of 2007 on the file of the VI Additional Sessions Court, in-charge of Mahila Court, Chennai, convicting and sentencing the appellants/accused as tabulated hereunder:
Sl.No. Conviction under Section Sentence Fine 1 Section 498-A IPC on each of the accused persons one year rigorous imprisonment on each of the accused persons Rs.5,000/- each, i/d each to undergo one month simple imprisonment 2 Section 306 read with 34 IPC on each of the accused persons five years rigorous imprisonment on each of the accused persons Rs.10,000/- each, i/d each to undergo one month simple imprisonment The trial Court ordered the sentences imposed on each of the accused persons to run concurrently.
2. The appellants / A1 to A4 are the father-in-law, mother-in-law, husband and brother-in-law of the deceased Jafna Esthar. The gist of the prosecution case leading to conviction of the accused persons is that, the deceased was given in marriage to A3 (third appellant herein) on 13.04.2005. At the time of marriage, a sum of Rs.1 lakh was given in cash, apart from 75 sovereign jewels. Within a period of two months of the marriage, the victim-deceased was driven out of matrimonial home five times. On the very next week to the date of marriage, A3, the husband of the deceased, compelled his wife (deceased) to share the bed along with A4, who is the brother of A3, and since the deceased refused for the same, A3-husband compelled his wife-deceased to bring a sum of Rs.50,000/- as dowry and further she was threatened that if she fails to bring the said sum of Rs.50,000/-, they will not allow her to live peacefully. While so, on 29.06.2005, all the accused persons had beaten the victim-deceased; A4 attempted to misbehave with the deceased and thereafter, the deceased came to her parents' house. P.W.1, the mother of the deceased, consoled her deceased-daughter, but on the same day at about 5 p.m., A3 came to P.W.1's house and took the deceased along with him to matrimonial home. On 30.06.2005, P.W.1 went to see her deceased-daughter and the accused persons asked P.W.1 as to whether she has brought the sum of Rs.50,000/-. When P.W.1 stated that she has not brought the amount, P.W.1 was scolded by them and she was unable to convince A3. Further, A1 and A2 asked her sons (A3 and A4) to beat P.W.1, and they pulled P.W.1's hair and had thrown her in the street. From there, P.W.1 went to her husband's brother's house to discuss about the matter. While P.W.1 was in her husband's brother's house, she came to know that her deceased-daughter had died. Hence, P.W.1 proceeded to the house of the accused persons and found that her daughter committed suicide by hanging herself in a fan with nylon rope; thereafter, P.W.1 proceeded to Police Station and gave Ex.P-1 complaint on 30.06.2005 itself at about 17.30 hours to P.W.12 Inspector of Police of Koyambedu Police Station. On receipt of the said complaint, P.W.12 registered the case in Crime No.2283 of 2005 under Section 174 Cr.P.C., as the victim died just two months from the date of her marriage. P.W.12 sent the FIR (Ex.P-22) to higher officials. P.W.13, the then Assistant Commissioner of Police, Thirumangalam Range, Chennai, received the complaint/FIR and around 6 p.m., he proceeded to the place of occurrence and completed all formalities like preparing observation mahazar, drawing rough sketch, examining the witnesses, etc. He recovered the material objects from the scene of occurrence. On 01.07.2005, the jurisdictional Tahsildar came to the place of occurrence and conducted inquest. Thereafter, the body of the victim was sent for post-mortem through Head Constable to the Government General Hospital, after which, the body of the deceased was handed over to her relatives. The dresses worn by the deceased were recovered under Form 95 and they were sent to Court. On the basis of the investigation and examination of witnesses, the offence was altered from Section 174 Cr.P.C. to Sections 323, 498-A, 306 and 304-B IPC and the alteration report-Ex.P-28 was sent to jurisdictional Court. On 02.07.2005 at about 7 a.m., the accused persons were arrested and remanded to judicial custody. The diary containing suicide note and practical notebook were surrendered by P.W.1 to handwriting expert through the jurisdictional Magistrate. After receipt of inquest report, the statement of the jurisdictional Tahsildar was also recorded. Subsequently, P.W.13's successor, namely P.W.14 continued the investigation and after completion of the investigation and all other formalities, he laid charge sheet against the accused persons. The case was taken on file by the trial Court in S.C.No.324 of 2007. During the course of trial, on the side of prosecution, P.Ws.1 to 14 were examined, Exs.P-1 to P-34 were marked and M.Os.1 to 6 were produced. When the appellants/accused persons was questioned under Section 313 Cr.P.C., they denied their complicity in the crime. On the side of the defence/accused, D.W.1 was examined and no document was marked. The trial Court, upon hearing both sides and on an analysis of the oral and documentary evidence, convicted and sentenced the appellants/A1 to A4 persons as tabulated supra. Challenging the same, the appellants/A1 to A4 have preferred this appeal.
3. Learned counsel for the appellants/A1 to A4 submitted that in order to prove the case on the side of prosecution, the mother of the deceased was examined as P.W.1 and the father of the deceased was examined as P.W.2, apart from them, other independent witnesses, i.e. P.Ws.3 to 7, were examined, but P.Ws.3 to 7 turned hostile. He further contended that though in the chief examination, P.W.1 has stated that A3 demanded Rs.50,000/- to buy a property (land), but she has not stated anything about this fact in the enquiry conducted by the Tahsildar during inquest. Though P.W.1 has stated in Ex.P-1 complaint that she paid Rs.1 lakh as dowry and gave 75 sovereigns of jewels to A3 during her daughter's marriage, in her cross-examination, P.W.1 stated that she has only given Rs.35,000/- in cash and further stated that she exaggerated the amount as she was informed that only if she gives exaggerated figure, she will get back the jewels and money. Thus, by relying upon the evidence of P.W.1, learned counsel for the appellants submitted that there are material contradictions in P.W.1's evidence, which would show that her evidence cannot be relied upon. In this regard, learned counsel for the appellants invited the attention of this Court to the evidence of P.W.1 and submitted that in her chief examination, she has stated that on 30.06.2005, she went to the house of the accused persons, where she was beaten by the accused persons, but however, on investigation, it was found that her statement was absolutely false and hence, the FIR registered based on the complaint under Section 323 IPC, was subsequently dropped. Though in the complaint, P.W.1 stated that the deceased was driven out of matrimonial home for five times within two months of her marriage, in her chief examination, P.W.1 has stated that the deceased was brought to her house only by her husband and hence, learned counsel submitted that the said contradiction also shows that P.W.1 is not speaking truth. In fact, P.W.1 has admitted in her evidence during cross examination that as her daughter was studying III year degree course and A3 is a school-drop-out, i.e. upto IV Standard, which shows that P.W.1 did not like her daughter (deceased) to give in marriage with A3. P.W.1 further stated that she agreed for marriage only on compulsion. Hence, learned counsel for the appellants submitted that the reason for the deceased committing suicide could be something else and not due to any matrimonial dispute/dowry.
4. Learned counsel for the appellants also submitted that P.W.2 (the father of the deceased) has almost deposed on the same lines as that of P.W.1 (the mother of the deceased). Learned counsel further submitted that P.W.2 has not clearly stated about the demand of dowry and his evidence, could at the most, only be treated as hear-say/parrot-like evidence.
5. Learned counsel for the appellants also submitted that except the evidence of P.Ws.1 and 2, who are the parents of the deceased, the other witnesses, namely P.Ws.3 to 7 turned hostile. Learned counsel for the appellants further submitted that the evidence of P.Ws.1 and 2 would not attract the offence under Section 306 read with 34 IPC, as there is no mens-rea for the accused persons, which would have left the deceased to go to such an extent of committing suicide. Learned counsel further submitted that the evidence of P.W.11 Tahsildar and his inquest report Ex.P-21, as also the evidence of P.W.10 reveals that there is no dowry harassment. Hence, learned counsel submitted that no case has been made out to convict the accused persons for both the offences under Sections 306 IPC and 498-A IPC.
6. Learned counsel for the appellants/A1 to A4 further submitted that though it is the case of the prosecution that before committing suicide, the deceased had written a suicide note in the diary, the note books and diary marked as documents, do not indicate that the handwritings thereon are of her's, as the handwritings contained therein are of many unidentified persons, coupled with the fact that the admitted signatures of the deceased are not available to compare the signatures found in those note books, etc. Hence, for all the above reasons, learned counsel prayed for acquitting the appellants/A1 to A4 by allowing this appeal.
7. Countering the above submissions, learned Additional Public Prosecutor appearing for the respondent-Police submitted that the evidence of P.Ws.1 and 2, who are the parents of the deceased, is cogent and consistent and their evidence itself is sufficient to prove that the appellants/A1 to A4 are the root cause for the deceased committing suicide, more so, when the material evidence available on record shows that the appellants were continuously harassing the deceased and her parents, by demanding dowry. He therefore submitted that the trial Court, by well-considered and valid reasons, convicted the appellants, with which, this Court may not interfere and hence, he prayed for dismissing the appeal.
8. Keeping in mind the above submissions made by learned counsel on either side, I have given my anxious consideration to the same and perused the materials available on record.
9. It is seen that the marriage between A3 and the deceased-daughter of P.W.1/de-facto complainant (mother) took place on 13.04.2005. Learned counsel for the appellants/A1 to A4 submitted that it is the case of the prosecution that right from the date of marriage, the deceased was being continuously harassed by the appellants demanding dowry. But, I find that P.W.1-mother lodged Ex.P-1 complaint stating that A3 has compelled the deceased to sleep with his brother (A4), else, to bring Rs.50,000/- cash as dowry. In her chief examination, P.W.1 stated that A3 demanded Rs.50,000/- for buying a landed property. Further, I find that P.W.1 stated in the complaint that they have given Rs.1 lakh by cash to the deceased while she was given in marriage with A3, apart from 75 sovereigns of jewels, whereas, in the cross-examination, she admitted that only Rs.35,000/- was given as cash at the time of marriage of her daughter with A3 and she further stated in cross-examination that even in the enquiry held by Tahsildar, she stated that Rs.1 lakh cash and 75 sovereign jewels were given during marriage, however, in cross-examination, she admitted that she was informed that only if she gives exaggerated figure, she would get back the money and jewels.
10. It is the further case of the prosecution that the marriage between A3 and the deceased took place on 13.04.2005 and she was beaten by the accused persons soon after the marriage, by demanding dowry. No complaint for harassment of dowry, was given, either by the deceased or by her parents till the date of her death. That being so, the allegation made by the prosecution with regard to the demand of dowry, as against all the accused persons, cannot be believed. However, P.W.1 is consistent in her statement, i.e. in Ex.P-1 complaint, she has stated that A3 was demanding Rs.50,000/- as dowry and even in chief examination, she has stated that A3 demanded dowry of Rs.50,000/-for purchasing land when A3 came along with her deceased-daughter and left her in her parents' house. The said portion of the evidence of P.W.1 in her chief-examination alone, was not shattered by the appellants, in her cross-examination.
11. Therefore, this Court comes to the conclusion that except demand of Rs.50,000/- by A3, I do not find any incriminating material to implicate the appellants/A1, A2 and A4 with regard to the demand of dowry or harassment meted out to the deceased on that score, and with regard to the offence under Section 306 IPC, I find that absolutely there is no evidence to the effect that there is positive act on their part to induce the deceased; or that A4 misbehaved with an intention to aid for the act of suicide committed by the deceased. In this regard, a reference could be made to the judgment of the Supreme Court, relied on by the learned counsel for the appellants/accused persons, to show that in order to bring an accused within the purview of the offence under Section 306 IPC, there must be an aid/act so as to make the deceased to go to such an extreme step of committing suicide; the relevant portion of the said judgment of the Supreme Court, which is reported in 2010 (1) SCC 707 (Amalendu Pal Vs. State of West Bengal), reads as follows:
"12. .... ... this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
(emphasis supplied)
12. In support of his submissions, learned counsel for the appellants/A1 to A4 also relied on a judgment of the Apex Court reported in 2011 (3) SCC 626 (M.Mohan Vs. State), wherein, the Apex Court held as follows:
"41. This Court in SCC para 20 of Ramesh Kumar (Ramesh Kumar Vs. State of Chhattisgarh (2001 (9) SCC 618 = 2002 SCC (Cri) 1088) 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 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."
... ...
44. 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.
45. The intention of the Legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens-rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."
(emphasis supplied)
13. From the dictum laid down by the Apex Court in the above decisions, it is clear that before holding an accused guilty of the said offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it, in order to find out as to whether the cruelty/harassment meted out to the deceased/victim had left her with no other alternative except to commit suicide.
14. In the present case, there is no evidence available on record to show that the cruelty/harassment meted out to the victim/deceased, has left the victim with no other alternative except to commit suicide. Moreover, as observed by the Supreme Court in the above decision reported in 2011 (3) SCC 626 (cited supra), there is no mens-rea on the part of the appellants/A1 to A4 to drive the deceased to such an extent of committing suicide, as no evidence, oral or documentary, is forthcoming in this case to prove the same.
15. Moreover, the evidence as against the appellants/A1, A2 and A4 is not believable, because, absolutely, there is no complaint against them with regard to dowry harassment. Except the version of P.W.1, there is no clinching evidence to show that the deceased was continuously harassed and beaten. Hence, I am of the opinion that the evidence could not be given any weightage as far as A1, A2 and A4 are concerned.
16. Further, with regard to the note books and diary, no weightage could attached to the seizure of the same, as the same has not been proved by the prosecution, by way of corroborating evidence and as the material witnesses, i.e. P.Ws.3 to 7 have turned hostile. Further, as contended by the learned counsel for the appellants, the note books and diary which have been relied upon, did not contain any handwriting of a single person, but they are of handwritings of various unidentified persons, and in the absence of admitted signature of the deceased, the comparison of the signatures does not arise in this case.
17. Furthermore, the evidence of D.W.1 (the other daughter-in-law of A1) shows that they were taking care of the daughter-in-law and when that being so, this Court is of the opinion that there cannot be any reason to treat the other daughter-in-law (deceased) in a different way. From the evidence of P.Ws.1 and 2, it is clear that there was only a demand of dowry by A3 alone to the extent of Rs.50,000/-, and P.W.1-mother of the deceased, is consistent in her statement that the said demand was made only by A3. Even in the cross-examination, that portion of her evidence was not shattered. Except for the demand of dowry by A3-husband, I do not find any incriminating material to implicate the other appellants/A1, A2 and A4. Moreover, there is no evidence to show that the accused persons have played any active role so as to induce the deceased to commit suicide. There should be evidence to the effect that cruelty meted out to the deceased, has left her with no other option except to commit suicide, which is not so in this case, insofar as the appellants are concerned. Hence, the conviction and sentence imposed on all the appellants/A1 to A4 for the offence under Section 306 read with 34 IPC, are liable to be set aside. Further, since there is no evidence as against A1, A2 and A4 to show that they were harassing the deceased demanding dowry, the conviction and sentence imposed on A1, A2 and A4 for the offence under Section 498-A IPC also, are liable to be set aside.
18. However, this Court finds that A3 being husband, demanding dowry itself, is a cruelty, which will attract the offence under Section 498-A IPC, as his deceased-wife was harassed, which is crystal clear from the evidence of her parents (P.Ws.1 and 2) of the deceased, coupled with the contents of Ex.P-1 complaint. Hence, A3-husband of the deceased, is liable to be convicted for the offence under Section 498-A IPC alone.
19. In the view taken above by this Court based on the materials available on record, as discussed above, it is not necessary to delve into the other decisions relied on by the learned counsel for the appellants.
20. For the foregoing reasons:-
(a) The appeal is partly allowed, setting aside the conviction and sentence imposed on A1, A2 and A4 in respect of both the offences under Sections 498-A and 306 read with 34 IPC.
(b) The conviction and sentence imposed on A3 for the offence under Section 306 read with 34 IPC is set aside.
(c) The conviction and sentence imposed on A3 for the offence under Section 498-A IPC is confirmed.
(d) Since the conviction and sentence imposed on A3 for the offence under Section 498-A IPC, is now confirmed, and since A3 is on bail, the trial Court is directed to take steps to secure his custody, to undergo the remaining period of sentence, if any.
(e) The bail bonds, if any executed by A1, A2 and A4 shall stand cancelled.
(f) The total fine amounts of Rs.15,000/- each, if paid by A1, A2 and A4, shall be refunded.
(g) The fine amount of Rs.10,000/- if paid by A3 in respect of the offence under Section 306 read with 34 IPC, shall be refunded.
30.08.2016 Index : Yes Internet: Yes cs Copy to
1. The VI Additional Sessions Court, in-charge of Mahila Court, Chennai.
2. The Public Prosecutor, High Court, Madras.
3. The Assistant Commissioner of Police, Thirumangalam Range, Chennai.
(Crime No.2283/2005 of K.10 Koyambedu Police Station, Chennai)
4. The Record Keeper, Criminal Section, High Court, Madras.
R.SUBBIAH,J cs Judgment in Crl.A.No.189 of 2011 30.08.2016