Madras High Court
Annadhurai vs The State Rep By Its on 17 February, 2015
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2015 CORAM: THE HONOURABLE MS. JUSTICE R. MALA Criminal Appeal No.277 of 2006 Annadhurai S/o.Karuppan .. Appellant/Accused v. The State rep by its The Inspector of Police Kalavai Police Station Vellore District .. Respondent/Complainant (Crime No.196/2003) Prayer: Criminal appeal filed under Section 374(2) of Cr.P.C., against the judgment of conviction and sentence dated 22.02.2006 made in S.C.No.253 of 2004 on the file of learned Additional District and Sessions Judge, Fast Track Court No.2, Ranipet, Vellore District. For Appellant : Mr.S.Thirunavukkarasu For Respondent : Mr.V.Arul, Govt. Advocate (Crl. Side) J U D G M E N T
This Criminal Appeal arises out of the judgment of conviction and sentence dated 22.02.2006 made in S.C.No.253 of 2004 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.2, Ranipet, whereby the appellant/accused is convicted and sentenced as follows:
Sections Sentences 354 IPC One year R.I, Fine of Rs.2000/-
294(b) IPC Fine of Rs.3000/-
In default to pay the fine amount, the accused to undergo Simple Imprisonment for 3 months.
2. The case of the prosecution based on the prosecution witnesses is as follows:
(i) The deceased Jeevitha is the eldest daughter of P.W.5/Viswanathan and the deceased Jothi. on the fateful day viz., 19.10.2003 at 11.00 A.M, when the deceased Jeevitha was taking bath in the thatched bathroom adjacent to her house, the appellant/accused witnessed the same by sitting over the tamarind tree. The deceased Jeevitha on seeing the accused witnessing her taking bath, rushed into her house and thereafter, informed about the incident to her neighbours P.W.1/Ragupathi and P.W.2/Parameswari. However, unable to bear the insult, she committed suicide by setting herself on fire.
(ii) Immediately, P.W.3/Baskar along with other villagers took her to Government Hospital at Kalavai, where she was treated by P.W.8/Dr.Indrakumar and referred to Vellore Government hospital for further treatment. The wound certificate issued by P.W.8/Dr.Indrakumar is marked as Ex.P.8.
(iii) On receiving the information about the incident, P.W.15/Sriramulu, Head Constable visited the Vellore Government Hospital and after conducting investigation, filed a case in Crime No.198/2003 under Sections 306 r/w 511 IPC. The FIR is marked as Ex.P.11. P.W.15 also visited the scene of occurrence and prepared Ex.P.12/Rough Sketch and Ex.P.2/Observation Mahazar. P.W.15 also seized the material objects M.O.1 to M.O.3 under Ex.P.3/Seizure Mahazar.
(iv) In the mean while, P.W.16/Mr.Sathikumar, learned Judicial Magistrate No.4, Vellore, on receipt of Ex.P.13/requisition letter and fitness certificate from the Medical Officer of Vellore Medical College and Hospital, visited the hospital and recorded Ex.P.13/Dying declaration of Jeevitha at 7.40 P.M. The said Jeevitha died of burns at around 10.00 P.M. on the same day viz., 19.10.2003. The death intimation is marked as Ex.P.9.
(v) After the death of the victim girl Jeevitha, on receipt of Ex.P.17/Requisition from the Investigating Officer, P.W.8/Dr.Thiagarajan conducted post mortem and the report is marked as Ex.P.14. Thereafter, the Investigating Officer altered the FIR from Section 306 IPC to Sections 294(b), 306, 354 and 509 IPC and Sections 4 and 4(b) of Tamil Nadu Prohibition of Harassment of Women Act, 1998.
(vi) After recording the statements of the witnesses and completing the investigation, P.W.18/Murugan, Investigating Officer filed the chargesheet against the accused.
3. The learned Trial Judge placed incriminating evidence against the accused under Section 313(1)(b) Cr.P.C. The accused denied the same in toto. After considering the oral and documentary evidence, the learned Trial Judge has convicted the appellant/accused as stated above.
4. Challenging the conviction and sentence passed against this appellant, the present appeal has been filed.
5.The learned counsel for the appellant would raise the following points:
(a) The delay in dispatching the FIR is fatal to the case of the prosecution.
(b) There is a discrepancy in the Ex.P.13/Dying declaration recorded by Mr.S.Sathi Kumar, learned Judicial Magistrate No.4, Vellore. The name of the accused Annadhurai has been written after striking off the name Nagaraj.
(c) The ingredients of Section 354 IPC has not been made out. As per the said section, the basic ingredient is that there must be an assault or criminal force. It is the case of the prosecution that when the deceased Jeevitha was taking bath, the appellant/accused claimed the tamarind tree and witnessed the same. Hence, the girl unable to bear the insult was forced to commit suicide. In such circumstances, there is no assault or criminal force and the above factum were not considered by the Trial Court and hence, the learned counsel for the appellant prayed for setting aside the conviction and sentence.
6. Resisting the same, the learned Government Advocate (Crl. Side) would submit that even though the charge has been framed against the appellant under Sections 294(b), 354, 306 IPC and Section 4(b) of Tamil Nadu Prohibition of Harassment of Women Act, 1998, the Trial Court after considering the oral and documentary evidence has acquitted him from the offences under Section 306 IPC and Section 4(b) of Tamil Nadu Prohibition of Harassment of Women Act, 1998, and convicted the appellant only for the offences under Section 294(b) and 354 IPC. He would also submit that the ingredient of Section 354 has been made out and hence, he prayed for dismissal of the appeal.
7. Considered the rival submissions made by both sides and perused the typed set of papers.
8. The case of the prosecution is that the deceased Jeevitha is the eldest daughter of P.W.5/Viswanathan and the deceased Jothi. Their younger daughter is P.W.4/Pavithra. After the death of his first wife P.W.5/Viswanathan married P.W.7/Soundari. P.W.6/Subramanian is the brother of P.W.5/Viswanathan. P.W.1/Ragupathi and P.W.2/Parameswari are the neighbours of P.W.5/Viswanathan. P.W.3/Baskar is the person who along with other persons rescued the deceased Jeevitha after she set herself in fire and took her to hospital.
9. According to the prosecution, on the fateful day viz., 19.10.2003 at 11.00 A.M, the deceased Jeevitha was taking bath in her house. At that time, the appellant/accused witnessed the same by sitting in the tamarind tree. The deceased Jeevitha on seeing the accused witnessing her taking bath, rushed into her house and informed her neighbours P.W.1/Ragupathi and P.W.2/Parameswari. However, unable to bear the insult, she committed suicide by setting herself on fire. Immediately, P.W.3/Baskar along with other villagers took her to Government Hospital at Kalavai, where she was treated by P.W.8/Dr.Indrakumar and referred to Vellore Government hospital. The wound certificate issued by P.W.8/Dr.Indrakumar is marked as Ex.P.8. On receiving the information, P.W.15/Sriramulu, Head Constable visited the hospital and after conducting investigation, filed a case in Crime No.198/2003 under Sections 306 r/w 511 IPC. The FIR is marked as Ex.P.11. P.W.15 also visited the scene of occurrence and prepared Ex.P.12/Rough Sketch and Ex.P.2/Observation Mahazar. P.W.15 also seized the material objects M.O.1 to M.O.3 under Ex.P.3/Seizure Mahazar. P.W.16/Mr.Sathikumar, learned Judicial Magistrate No.4, Vellore, on receipt of Ex.P.13/requisition letter and fitness certificate from the Medical Officer of Vellore Medical College and Hospital, visited the hospital and recorded Ex.P.13/Dying declaration of Jeevitha at 7.40 P.M. The said Jeevitha died of burns at around 10.00 P.M. on the same day viz., 19.10.2003. The death intimation is marked as Ex.P.9.
10. Now this Court has to decide whether there is a delay in dispatching the FIR ?
The learned counsel for the appellant mainly focused on the point that there is an inordinate delay in dispatching the FIR. It is true that on the basis of the complaint preferred by the deceased Jeevitha, a case has been registered in Crime No.198/2003 under Sections 306 r/w 511 IPC on 19.10.2003 at 21.00 hrs, but the same reached the Court only on 21.10.2003 at 15.15 hrs. As per the documents, the deceased Jeevitha was admitted in the Vellore Government Hospital on 19.10.2003 at 02.05 P.M and she died at 10.00 P.M on the same date. However, the Ex.P.11/FIR reached the Court only on 21.10.2003, after including Section 306 IPC as per Ex.P.16/Express Report. Subsequently, as per Ex.P.15/Alter Report, the case was altered with Sections 294(b), 354, 306 IPC and Section 4(b) of Tamil Nadu Prohibition of Harassment of Women Act, 1998.
11. Thus, considering the facts and circumstances, I am of the view that the delay in dispatching the FIR is not fatal to the case of the prosecution. So, the argument advanced by the learned counsel for the appellant in this regard does not merit acceptance.
12. The second point that has to be considered is that there is discrepancy in the Ex.P.13/dying declaration recorded by P.W.16/Mr.Sathi Kumar, learned Judicial Magistrate No.4, Vellore, wherein the name the one Nagaraj was struck off and the name of the appellant/accused was re-written. P.W.16/Mr.Sathi Kumar, learned Judicial Magistrate in his evidence has stated that after recording the statement, when he read it over to the deceased Jeevitha, she corrected the name as Annadhurai and hence, he had struck out the name of Nagaraj and wrote the name of Annadhurai. Furthermore, it is pertinent to note that before recording the Ex.P.13/Dying declaration, the deceased Jeevitha has given the Ex.P.10/Complaint wherein she had specifically mentioned the name of the accused as Annadhurai. Furthermore, the doctor has also given certificate that during the recording of dying declaration, Jeevitha was conscious and fit for giving dying declaration. In such circumstances, I am of the view that the argument advanced by the learned counsel for the appellant that there is discrepancy in the Ex.P.13/Dying declaration also does not merit acceptance.
13. The third point raised by the learned counsel for the appellant is that the ingredients of Section 354 IPC has not been made out.
At this juncture, it is appropriate to incorporate Section 354 IPC 354. Assault or criminal force to woman with intent to outrage her modesty.Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The ingredients reads as follows:
1.Ingredients.
1.Essential ingredients are as follows:
1. A woman was assaulted or criminal force was used.
2. Thereby accused intended to outrage her modesty.
3. Or knowing that her modesty will be outraged.
2. The essential ingredients of the offence under Section 354 IPC are as under.-
(i) that the person assaulted must be a woman;
(ii) that the accused must have used criminal force on her; and
(iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty.
14. Admittedly, as per the evidence of Ex.P.13/Dying declaration as well as Ex.P.10/Complaint and the evidences of other hearsay witnesses would clearly reveal that when the deceased Jeevitha was taking bath, the appellant/accused witnessed the same by sitting on the tamarind tree. The deceased Jeevitha on seeing the accused witnessing her nude, rushed out of the place and after intimating the incident to her neighbours P.W.1/Ragupathi and P.W.2/Parameswari returned back home. However, unable to bear the humiliation she committed suicide by setting herself on fire. Hence, no criminal force was used on the deceased Jeevitha with an intention to outrage her modesty.
15. In such circumstances, I am of the view that the prosecution has miserably failed to prove the ingredients of Section 354 IPC in the present case. So, the conviction and sentenced imposed on the accused under Section 354 IPC is liable to be set aside.
16. Furthermore, a mere perusal of Ex.P.10/Complaint and Ex.P.13/Dying declaration would also reveal that there is nothing to prove the ingredients of offence under Section 294(b) IPC and hence, the same is also liable to be set aside.
17. In fine,
(a) The Criminal Appeal is allowed.
(b) The judgment of conviction and sentence dated 22.02.2006 made in S.C.No.253 of 2004 on the file of learned Additional District and Sessions Judge, Fast Track Court No.2, Ranipet, is hereby set aside.
(c) The appellant is acquitted from the charges levelled against him and he is set free.
(d) The fine amount paid by the accused is ordered to be refunded to him.
17.02.2015 Index:Yes/No Internet:Yes/No pgp To
1. learned Additional District and Sessions Judge, Fast Track Court No.2, Ranipet
2. The Public Prosecutor, High Court of Madras
3. Record Keeper, Criminal Section, High Court of Madras R.MALA,J.
pgp Crl.A.No.277 of 2006 Dated : 17.02.2015