Madras High Court
Rajendran vs State Rep By on 8 March, 2021
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.A.No.12 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.03.2021
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.12 of 2012
Rajendran ... Appellant
Vs.
State rep by
The Inspector of Police,
Ambalur Police Station,
Cr.No.328 of 2005
Vellore District. ... Respondent
Prayer : Criminal Appeal is filed under Section 374(1) of Cr.P.C. to set
aside the judgment of conviction and sentence dated 14.12.2011 made in
S.C.No.106 of 2011 on the file of the Additional District and Sessions
Judge, F.T.C, Tirupattur, Vellore District.
For Appellant : Mr.M.G.Udhayashankar
For Respondent : Mrs.V.Sharadhadevi
Government Advocate (Crl.side).
JUDGMENT
This appeal has been filed to set aside the judgment of conviction and sentence dated 14.12.2011 made in S.C.No.106 of 2011 https://www.mhc.tn.gov.in/judis/ 1/44 Crl.A.No.12 of 2012 on the file of the Additional District and Sessions Judge, F.T.C, Tirupattur, Vellore District finding the accused guilty for the offence under Section 306 IPC and convicting and sentencing him to undergo 5 years rigorous imprisonment and to pay a fine of Rs.1,000/- and in default to undergo 6months simple imprisonment.
2. The brief facts of the prosecution case are as follows :-
The victim / deceased / Gomathi is the second wife of the appellant/A1 and A2 / Saraswathi (since acquitted) is the first wife of A1.
PW1 / Chandra is a neighbour and relative of the victim / deceased/Gomathi. PW3, PW4 and PW5 are respectively the elder sister, father and mother of the victim / deceased/Gomathi. The appellant got married to the victim / deceased during the year 2002 and after the marriage, the matrimonial home was set up at the house of the appellant at Chinnamottur village. The appellant married the victim / deceased as second wife since his first wife did not bear any child out of the marriage. The victim / deceased after the marriage gave birth to a female child and later she was driven out of matrimonial home and thereafter a family panchayat was convened and the victim deceased returned back to https://www.mhc.tn.gov.in/judis/ 2/44 Crl.A.No.12 of 2012 the matrimonial home. The further case of the prosecution is that on 26.07.2005 at 3.00 pm the victim / deceased had administered medicine i.e. gripe water to her child and since she had not properly administered the medicine, the appellant had chided her saying “FHe;ijia fhy;
ePl;of; bfhz;L kUe;J Cw;wf;Tlhjh”; and slapped her and left home and after that at about 5.00 p.m the deceased self immolated herself by pouring kerosene. P.W.10 and P.W.13 who were neighbours rushed to the house of the victim / deceased and took her to Government Hospital, Vaniyampadi. On the same day, P.W.14/Sub Inspector of Police attached to Ambalur Police Station received the intimation from Vaniambadi Town Police Station that the victim / deceased was admitted in Government Hospital at Vaniyambadi and had gone there at 19.30 hours. P,W.14 recorded a statement from the deceased, which became the complaint (Ex.P11) in which P.W.3 / sister of the deceased had signed / attested and P.W.11/ the duty Doctor had also attested that the victim / deceased was concious at the time of giving the statement. The signature of P.W.3 in the statement is Ex.P1, and the attestation made by the Doctor /P.W.11 is Ex.P7. P.W.14 who came to the police station after recording the statement of the deceased registered the FIR in Crime https://www.mhc.tn.gov.in/judis/ 3/44 Crl.A.No.12 of 2012 No.328 of 2005 for the offence under Section 309 I.P.C and sent the same to the Court and thereafter proceeded with further investigation. The FIR is Ex.P12. Thereafter at 21.30 hours, P.W.14 went to the place of occurrence and prepared rough sketch / Ex.P13 and observation mahazar/Ex.P3 in the presence of P.W.6 and P.W.7. Further, P.W.14 also recorded the further statement of the deceased under Section 161 Cr.P.C and also examined the witnesses P.W.1, P.W.13, P.W.8, P.W.10, P.W.5, P.W.2, P.W.3, P.W.6 and P.W.7. The statement of the deceased is Ex.P14.
3.On 26.07.2005 at 8.10 p.m., P.W.15 / District Munsif-cum- Judicial Magistrate, Vaniyambadi received the intimation from the hospital to record the dying declaration from the deceased admitted in the hospital at 8.25 p.m. P.W.15 reached the hospital and recorded the dying declaration from the deceased in the presence of duty doctor/P.W.11. The duty doctor/P.W.11 issued certificate Ex.P8 that the deceased was in conscious state of mind. The dying declaration recorded by P.W.15/ the Judicial Magistrate is Ex.P16.
https://www.mhc.tn.gov.in/judis/ 4/44 Crl.A.No.12 of 2012
4. On 27.07.2005, P.W.14 received the death intimation Ex.P10 that Gomathi died on 27.07.2005 at 1.00am and then at 6.00am he received the complaint Ex.P2 from P.W.4 / father of the victim /deceased and then altered the F.I.R in Crime No.328 of 2005 from the offence under Section 309 I.P.C to offence under Section 306 I.P.C. The altered F.I.R is Ex.P15. P.W.14 sent the altered FIR to higher officials and to the Court. P.W.16/Circle Inspector of the Vaniyampadi police station after receiving the files relating to the altered F.I.R. conducted the inquest on the body of the deceased in the presence of the panchayatars and other witnesses. The inquest report is Ex.P17. P.W.16 sent the requisition Ex.P6 to conduct autopsy to the Judicial Magistrate, Vaniyambadi, after receiving the requisition P.W.9/Doctor conducted the autopsy and collected the viscera for conducting medical analysis and thereafter conducted the autopsy on 27.07.2005 between 1.15 p.m. To 2.00 p.m. The post-mortem report given by P.W.9/Doctor is Ex.P5.
5. On 27.07.2005, P.W.16 examined the witnesses P.W.1, P.W.10, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.12 and recorded further statement. P.W.16 also arrested the accused / Rajendran in his village at https://www.mhc.tn.gov.in/judis/ 5/44 Crl.A.No.12 of 2012 3.30 p.m. on 27.07.2005 and sent him to judicial custody. P.W.17 continued with the further investigation conducted by P.W.16 and filed the charge sheet against the appellant/A1 and his first wife A2 (since acquitted) for the offence under Sections 306 and 498A I.P.C.
6. The case was taken on file in P.R.C.No.9 of 2009 by the learned Judicial Magistrate, Vaniyambadi and he had after completing the procedure and formalities under Section 207 Cr.P.C and finding that the case was exclusively triable by the Court of Sessions committed the case to the Principal District and Sessions Judge, Vellore and the case was taken up in S.C.No.106 of 2011 and made over to the file of the Additional District and Sessions Judge, F.T.C, Tirupattur, Vellore District for trial.
7. After perusing the materials and after hearing the accused, the trial Court framed charges against the appellant/accused for the offence under Section 498A and 306 I.P.C and as against A2 (since acquitted) for the offence under Section 498A I.P.C. https://www.mhc.tn.gov.in/judis/ 6/44 Crl.A.No.12 of 2012
8. When questioned both the accused denied the charges and sought to be tried. In order to substantiate the accusation, the prosecution examined P.W.1 to P.W.17 and marked Ex.P1 to Ex.P17. On completion of the evidence tendered by the prosecution, the accused were questioned under Section 313 Cr.P.C as to the incriminating substances found in the oral and material evidence of the prosecution and the accused had come out with the version of total denial. However, no witness was examined on the side of the defence and no document was marked.
9.The trial Court after hearing the arguments advanced on either side and after perusing the materials available on record and by placing reliance on the dying declaration found that the appellant/A1 had harassed the victim / deceased which had led her to commit suicide and found him guilty for the offence under Section 306 I.P.C and convicted him as stated above. However, the trial Court acquitted the appellant and other accused for the offence under Section 498A I.P.C. As against the judgment of conviction and sentence the present criminal appeal has been filed by the appellant.
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10. This Court heard the submissions of the learned counsel on either side.
11. The learned counsel for the appellant while assailing the judgments of conviction and sentence would submit that a case of death due to accidental fire while boiling milk has been falsely projected as a case of suicide. The appellant was wrongly prosecuted for the charge of having abetted the victim to commit suicide and for having committed matrimonial cruelty on the victim / deceased. The trial Court finding no evidence / material for matrimonial cruelty had acquitted the appellant / A1 and the co-accused / A2 for the charges under Section 498 A and strangely on the same set of evidence without there being any material and legal evidence for proving the charge under Section 306 I.P.C had wrongly convicted the appellant
(a)the trial judge failed to take into consideration the glaring infirmities, inconsistencies and discrepancies found in the case of the prosecution. The entire case of the prosecution is bristled with inconsistencies and exaggeration. https://www.mhc.tn.gov.in/judis/ 8/44 Crl.A.No.12 of 2012
(b)the trial judge failed to take into consideration that there are several dying declarations in this case including the oral statement made by the victim / deceased to the neighbours immediately after the occurrence, the statement given to the Sub Inspector of Police at the hospital, the statement recorded u/s.161 Cr.P.C. and the dying declaration given to the Judicial Magistrate. The reading of the initial statements made to the police and the dying declaration before the Judicial Magistrate would show that there are improvements, exaggerations and embellishments at each stage thereby creating a doubt with regard to the prosecution case. As per the initial statements of the victim / deceased, absolutely no averments were made against the appellant and the other accused A2 (since acquitted). The further statements and the dying declaration were improved versions with allegation on tutoring to build up a case against both the accused. In this case, the victim / deceased was immediately seen after the occurrence by P.W.1, P.W.2, P.W.10 and P.W.13, the neighbours. The victim / deceased had told https://www.mhc.tn.gov.in/judis/ 9/44 Crl.A.No.12 of 2012 them that her saree caught fire while she was boiling milk. P.W.10 and P.W.2 are the persons who had taken the victim / deceased to the hospital in a TVS 50 and had admitted her. Strangely, all of them have been treated hostile and the statements made to them have not been considered by the Court below.
(c)there is absolutely no evidence to prove that the appellant had mensrea to commit the offence under Section 306 I.P.C. In order to sustain the conviction for the offence under Section 306 IPC, the prosecution should prove that the appellant had clear mensrea to commit the offence and the prosecution has to prove that there was direct or indirect acts of incitement leading to the commission of suicide. The accused cannot be convicted for 306 I.P.C. 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.
(d)In the ultimate the learned counsel would submit that if the oral statement made to the neighbour immediately https://www.mhc.tn.gov.in/judis/ 10/44 Crl.A.No.12 of 2012 after the occurrence and the first statement given to the police at the hospital is taken to be true, no case cam be made out against the appellant that he abetted the victim / deceased to commit suicide and the trial Court without properly and carefully analysing the subsequent statements with the initial statements had convicted the appellant on presumption, assumptions and surmises.
12. In support of his contention, the learned counsel for the appellant would rely on the judgments of the Hon'ble Apex Court reported in
1. Bhadragiri Venkata Ravi v. Public Prosecutor, High Court of Andhra Pradesh, Hyderadbad reported in (2013) 14 SCC 145
2. Gangula Mohan Reddy v. State of Andhra Pradesh reported in (2010) 1 SCC 750
3. Prempal V. State of Haryana reported in (2014) 10 SCC 336
4. Sampat Babso Kale and another v. State of Maharashtra reported in (2019) 4 SCC 739
5. Mohanlal Gangaram Gehani V. State of Maharashtra reported in (1982) 1SCC 700
6. Ude Singh and Others V. State of Haryana (2019) 17 SCC 201
7. Wasim V. State (NCT of Delhi) reported in (2019) 7 SCC 435 https://www.mhc.tn.gov.in/judis/ 11/44 Crl.A.No.12 of 2012
13. On the other hand, Mrs.V.Sharadhadevi, the learned Government Advocate (Crl. Side) appearing for the respondent would submit that the prosecution by letting in cogent evidence has proved its case beyond reasonable doubt. The trial Court finding the statements to be cogent and consistent and relying on the dying declarations recorded by the Magistrate had found the appellant guilty. The evidence of P.W.3, P.W.4 and P.W.5 are clear that the victim / deceased was subjected to matrimonial cruelty and harassment. It is the case were the victim / deceased has given a dying declaration to the Magistrate which would stand on a higher footing. In the statement given to the Magistrate the victim / deceased had stated that her husband assaulted her before the occurrence and thereby she had committed suicide.
14. In reply, the learned counsel for the appellant would submit that it is not in doubt that a dying declaration recorded by a Magistrate would stand on a higher footing, however, when there are multiple dying declarations, a duty is cast upon the trial judge to scrutinise the version in the dying declaration to ascertain whether the victim / deceased had been subjected to any tutoring when especially it is totally in contradiction to https://www.mhc.tn.gov.in/judis/ 12/44 Crl.A.No.12 of 2012 the initial statement given to the other witnesses. As per the case of the prosecution, initially a dying declaration was given to P.W.14, wherein victim / deceased had not stated anything as if she was assaulted by her husband. Later an improved version is alleged to have been given by the victim / deceased to the Judicial Magistrate which could have been on account of tutoring by her relatives who have reached the hospital immediately after occurrence.. Further, the trial Court had disbelieved that the victim / deceased was subjected to matrimonial cruelty and having acquitted the appellant and co-accused from the offence under Section 498A I.P.C. the trial Court ought not to have convicted the appellant for the offence u/s.306 IPC.
15.This Court has given its careful consideration to the rival contentions put forward on either side and thoroughly scanned the entire evidences available on record and also perused the impugned judgment of conviction.
16.Now analysing the evidence on record P.W.1 is the relative and a neighbour of the victim / deceased. https://www.mhc.tn.gov.in/judis/ 13/44 Crl.A.No.12 of 2012 She has not supported the case of the prosecution and she has been declared hostile.
P.W.2 is another neighbour. She had deposed that on the date of occurrence at 5.00 p.m. while she was returning home after her work she had seen the victim rushing out of her house burning and falling down. When she had enquired the victim / deceased, she had told her that her saree caught fire while she was boiling milk. P.W.2 had further deposed that the appellant was not in the house at that time and that she had taken the victim / deceased to the hospital. She had been treated hostile by the prosecution.
P.W.3 is the elder sister of the victim/ deceased. She had deposed that the 1st accused is her brother in law and the 2nd accused is the first wife of the 1st accused and that the marriage between her sister and the 1st accused took place 1 ½ years before the occurrence. She had further deposed that after the marriage the 1st accused had harassed her and she had come back to their parents house and that her parents had advised her and sent her back. While so, on 26.07.2005 she had received information that her sister attempted suicide by self immolation at 5.00 p.m. and that she had gone to Vaniyampadi Government Hospital and https://www.mhc.tn.gov.in/judis/ 14/44 Crl.A.No.12 of 2012 when she had enquired her sister, she had told her that she had kept her child on the leg and administered gripe water and that the 1 st accused had assaulted her stating that she was not properly administering gripe water and that she was agonised and she immolated herself. She had further deposed that her parents had come later and that the police also came there and took the statement from her sister and that she attested the statement. The statement was marked as Ex.P11 and the alteration was marked as Ex.P1 and thereafter her sister died on the same night. During her cross examination, she had stated that she went to the hospital at 5.00 p.m. and the police came there at 5.30 p.m. and obtained statement from her sister and that she was there throughout the night and no other statement was taken from her sister. In her cross examination, she had deposed that her parents had come to the hospital at 7.00 p.m. and that all of them were present with her sister till her death and after the death of her sister, the police did not enquire her. She had further deposed that the doctor was present when the statement was obtained from her sister.
P.W.4 is the father of the victim/ deceased. He had deposed that the marriage between his daughter and the 1st accused took place in the year 2002 and that after the marriage the 1st accused was harassing https://www.mhc.tn.gov.in/judis/ 15/44 Crl.A.No.12 of 2012 her and that his daughter was given in marriage since the 1st accused did not have any child and after the birth of the child, the 1st accused had harassed her and that he heard that his daughter committed suicide by self immolation. He along with his wife P.W.5 went to the hospital and saw his daughter and on seeing him, his daughter had told him “dad you have come” and she died and that there were several other persons nearby and that he did not take note of them and that on the next day he had given a complaint, which was marked as Ex.P2. In the cross- examination, he had deposed that his daughter was unable to speak and thereby he had given a complaint. He had deposed that he had reached the hospital at 8.00 p.m. and from 8.00 p.m. till her death he and his relatives were along with the victim/ deceased. He had further in his cross examination deposed that after the birth of the child there was no problem with the 1st accused and that there was some dispute between the 2nd accused and his daughter.
P.W.5 is the mother of the victim / deceased. She had deposed that her daughter was given in 2nd marriage to the 1st accused and that after the marriage the 1st accused had harassed her daughter and that on 26.07.2005 at 6.30 p.m. she received information that her daughter https://www.mhc.tn.gov.in/judis/ 16/44 Crl.A.No.12 of 2012 sustained burn injuries and she had rushed to the hospital and that her daughter was unable to speak and that within 10 minutes she passed away and before her death, her daughter had informed that due to a quarrel regarding administering gripe water, the 1st accused had assaulted her due to which she had immolated herself. In her cross examination, she had deposed that when she had gone to the hospital, her daughter was unable to speak. She had further deposed that she was not aware of the problem between her daughter and the 1st accused and that 22 days prior to the occurrence the 1st accused had come to her house along with her daughter and that they were cordial and that they went back home in a cordial mood.
P.W.6 is the witness for the observation mahazar. She has been treated hostile.
P.W.7 is the Village Panchayat President. He is the witness for the observation mahazar (Ex.P4). He had deposed that he was not aware of the content of Ex.P4.
P.W.8 is the neighbour of the victim/ deceased. She has deposed that she is residing near the house of the deceased and that prior to six years at 4.00 p.m. while she was at home, she heard the noise and https://www.mhc.tn.gov.in/judis/ 17/44 Crl.A.No.12 of 2012 that on hearing that she had gone to the house of the victim / deceased and that she had found some persons taking victim to the hospital. Since she did not support the case of the prosecution, she has been treated hostile.
P.W.9 is the Doctor, who had conducted post-mortem. He had deposed that he conducted post-mortem on 27.07.2005 and he observed the victim / deceased and noted the following:
i) body lying on the back
ii) Eyes are closed
iii) burn injuries on scalp, hair, face, neck, chest, abdomen front and back, both upper limbs and both lower limbs.
iv)Kerosene smell over the body.
v)blisters due to burns seen on the body
vi) on opening, found oozing of fluid
vii) blackening of the skin due to burnt parts.
(viii) skull & spine intact
(ix) hyoid bone intact He had opined that the victim / deceased died due to burns and shock 20 to 22 hours prior to post mortem. The post mortem report was marked as Ex.P5 and the requisition made by the police was marked as Ex.P6.
P.W.10 is a neighbour and he has been treated hostile. P.W.11 is the duty Doctor. He had deposed that on 26.07.2005 while he was on duty at Vaniyampadi Government Hospital at 7.00 p.m. https://www.mhc.tn.gov.in/judis/ 18/44 Crl.A.No.12 of 2012 Vaniyampadi Police had examined the victim / deceased and obtained her statement and that the victim / deceased was conscious and that he had attested in the statement that the victim / deceased was conscious. The attestation was marked as Ex.P7. Thereafter, on the same day at 8.25 p.m. the Judicial Magistrate had recorded a dying declaration from the victim / deceased and that the victim / deceased was conscious at that time and that he had certified that the victim / deceased was conscious and the attestation in the dying declaration is marked as Ex.P8. He had deposed that he had sent an intimation to the Judicial Magistrate to record the statement and the intimation was marked as Ex.P.9 and thereafter, after the death of the victim / deceased he had sent intimation to the police and the death intimation was marked as Ex.P.10. In his cross examination, he had deposed that he had not mentioned the time in the statement given by the victim / deceased and that on the request of the Judicial Magistrate he had attested the dying declaration.
P.W.12 is a relative of the deceased. He had spoken about having arranged the 2nd marriage between the 1st accused and the deceased and that there were disputes between the deceased and the 1st accused and that he had gone to the hospital on hearing the news and that https://www.mhc.tn.gov.in/judis/ 19/44 Crl.A.No.12 of 2012 the victim / deceased had informed him that due to the quarrel with her husband with regard to administering medicine to the child she had immolated herself, however in his cross examination he had deposed that he was not aware of the quarrels between the deceased and the appellant / A1.
P.W.13 is a neighbour of the deceased and the accused. She had deposed that the accused and the deceased were having cordial relationship and that 4 or 5 years back, the victim / deceased was administering gripe water to her child and that the 1st accused had advised her to carefully administer the medicine to the child and had left the house and that thereafter she had heard that the victim / deceased caught fire and she came out and that there was no one else and that she along with one Sampath and Karthick had taken the victim / deceased to the hospital and that on the same day around 12.00 hours night the victim / deceased passed away. The prosecution has treated her hostile.
P.W.14 is the Sub Inspector of Police. He had deposed that he was the Sub Inspector at Ambalur Police Station and that on 26.07.2005 he received an information from Vaniyampadi Police Station stating that Gomathi, aged 21 years had sustained burn injuries and was admitted in https://www.mhc.tn.gov.in/judis/ 20/44 Crl.A.No.12 of 2012 Vaniyampadi Government Hospital. On receiving intimation, he had gone to the hospital at 18.30 hours and obtained a statement from her and based on which, he registered a case in Crime No.328 of 2005 u/s. 309 I.P.C and sent copies to the Court and thereafter continued with the investigation and around 21.30 hours he had gone to the place of occurrence and prepared rough sketch and observation mahazar in the presence of witnesses. The statement recorded from the victim / deceased was marked as Ex.P11. F.I.R is marked as Ex.P2, rough sketch was marked as Ex.P13 and thereafter he had examined the witnesses Gomathi, Chandra, Kumari, Karthikeyan, Sampath, Saraswathy, Jagatha, Uma, Rajamanickam and Ramamurthy and recorded their individual statements. The statement recorded from the victim / deceased u/s.161 Cr.P.C. was marked as Ex.P14. On the next day he received an information at 6.00 a.m. that the victim / deceased passed away and thereafter the father of the victim / deceased had appeared before him and given a compliant, based on which, the case in Crime No.328 of 2005 which was registered for offence u/s.309 IPC was altered to 306 IPC and the alteration report was sent to the Court. The altered F.I.R. was marked as Ex.P15 and thereafter he had forwarded the alteration report to the https://www.mhc.tn.gov.in/judis/ 21/44 Crl.A.No.12 of 2012 Circle Inspector. He had further deposed that P.W.1, P.W.2, P.W.6, P.W.8, P.W.10 and P.W.13 had deposed as per the statement given to him. In his cross examination he had deposed the time had been scratched and altered as 17.17 hours and the date and time in the statement of the victim / deceased was also altered. He had further deposed that the statement u/s.161 Cr.P.C. from the victim / deceased was recorded on 26.07.2005 at 10.00 p.m. and that he had not examined the parents and that on the next day P.W.4 had given a complaint and that there were several corrections in the complaint. He had further deposed that P.W.3 in her statement had not informed him that both the accused have abused the victim / deceased.
P.W.15 is the Judicial Magistrate who had recorded the dying declaration. He had deposed that on 26.07.2005 at 8.10 p.m. he received an intimation from Vaniyampadi Government Hospital seeking to record the dying declaration of one Gomathi and that around 8.25 p.m. he had gone to the hospital and on being identified by the duty doctor and after finding that the victim / deceased was in a fit state to answer his questions had recorded her statement and obtained her left thumb impression in the dying declaration and that the doctor was along with https://www.mhc.tn.gov.in/judis/ 22/44 Crl.A.No.12 of 2012 him when the statement was recorded. The dying declaration was marked as Ex.P16. In his cross examination he had deposed that the victim / deceased did not inform him about the time of occurrence.
P.W.16 is the Inspector of Police. He had deposed that while he was a Circle Inspector at Vaniyampadi he had taken up the case in Crime No.328 of 2005 u/s.309 IPC registered by P.W.14 for investigation and thereafter coming to know of the death of the victim / deceased had altered the case to one u/s.306 I.P.C. After receiving the C.D. File he had gone to the Vaniyampadi Government Hospital conducted inquest between 9.00 and 11.00 a.m., in the presence of Panchayatdhars. The inquest report was marked as Ex.P.17. Thereafter, made a request to the doctor to conduct post-mortem and thereafter given a requisition to the Judicial Magistrate to send viscera for analysis on 27.07.2005 and recorded the further statements of the witnesses and on the next day at 3.30 p.m. arrested the accused and sent him for remand and thereafter he was transferred and he had handed over the files to his successor. In his cross examination, he had deposed that none of the witnesses have spoken as if there was a dispute between the https://www.mhc.tn.gov.in/judis/ 23/44 Crl.A.No.12 of 2012 deceased and the 2nd accused.
P.W.17 is the subsequent Inspector, who had taken up the further investigation. He had deposed that he took charge on 15.03.2009 and that he had received the C.D. File from P.W.16 and continued with the investigation and filed the final report against the accused.
17.The trial Court had passed the impugned judgment of conviction on the appellant mainly on the basis of dying declarations stated to have been recorded from the victim/deceased by the Judicial Magistrate. The first and foremost question which has to be decided is as to whether the prosecution has proved the charge against the appellant/accused under Section 306 IPC by establishing the ingredients beyond reasonable doubts and whether the conviction of the appellant for the offence and charge is justified by proper analysis of evidence. For deciding the above question a detailed scrutiny of both the oral and documentary evidence and a careful analysis of the dying declarations has to be necessarily done in consonance with the decisions relied on by the counsel for the appellant.
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18.Now while analysing the case, admittedly, it is a case the victim / deceased is stated to have suffered burn injuries at 5.00 p.m. on 26.07.2005 and taken to the Government Hospital where she succumbed to the injuries on 27.07.2005 at 1.00 a.m. In this case as stated above there are multiple dying declarations viz. The oral dying declaration given by the victim / deceased to the witnesses P.W.2, P.W.10 and P.W.13 immediately after the occurrence, the initial statement given by the victim / deceased to P.W.14 in the presence of P.W.3 (elder sister) and P.W.11 / duty doctor, the dying declaration given by the victim /deceased to the Judicial Magistrate in the presence of P.W.11 / duty doctor and the further statement recorded by P.W.14 from the victim / deceased u/s.161 Cr.P.C. About the evidentiary value of dying declaration of the victim / deceased, it is relevant to refer to Section 32(1) of the Indian Evidence Act, 1872, which reads as under:-
“32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:
https://www.mhc.tn.gov.in/judis/ 25/44 Crl.A.No.12 of 2012 (1)When it relates to cause of death.—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.”
19.As per Section 32 of the Indian Evidence Act, 1872, the statements can be either written or oral. In a case where there are multiple dying declarations, judicial prudence requires that each of the dying declarations has to be separately assessed, analysed and evaluated its own merits regarding its evidentiary value and thereby the Court in order to find out veracity of the dying declaration has to closely scrutinise the various statements to look into the admissibility of such statements.
20. The principles of law relating to the dying declaration have been laid down and summarised by the Honourable Supreme Court in Prempal Vs. State of Haryana reported in 2014 10 SCC 336, wherein in paragraphs 12 and 13, it was summarised as under:-
“12.When reliance is placed upon dying declaration, the court must be satisfied that the dying declaration is true, voluntary and not as a https://www.mhc.tn.gov.in/judis/ 26/44 Crl.A.No.12 of 2012 result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind. In State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] , this Court held that if the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. In this context, the observations made in para 13 of the judgment are relevant to be noted: (SCC pp. 556-
57, para 13).
“13. It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. (See Khushal Rao v. State of Bombay [AIR 1958 SC 22 : 1958 Cri LJ 106 : 1958 SCR 552] , Harbans Singh v. State of Punjab [AIR 1962 SC 439 : (1962) 1 Cri LJ 479 : 1962 Supp (1) SCR 104] , Gopalsingh v. State of M.P. [(1972) 3 SCC 268 : 1972 SCC (Cri) 513] ) There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the court may, for its assurance, look for corroboration to the dying declaration.”
13. In Bapu v. State of Maharashtra [(2006) 12 SCC 73 : (2007) 2 SCC (Cri) 545] , this Court in paras 14 and 15 observed as under: (SCC pp. 77-
79) “14. In Ravi v. State of T.N. [(2004) 10 SCC 776 :
2005 SCC (Cri) 576] the Supreme Court observed that: (SCC p. 777, para 3) ‘[I]f the truthfulness … of the dying declaration cannot be doubted, the same alone can form the https://www.mhc.tn.gov.in/judis/ 27/44 Crl.A.No.12 of 2012 basis of conviction of an accused and the same does not require any corroboration, whatsoever, in law.’
15. In Muthu Kutty v. State [(2005) 9 SCC 113 :
2005 SCC (Cri) 1202] vide para 15 the Supreme Court observed as under: (SCC p. 120-121) ‘15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat [(1992) 2 SCC 474 : 1992 SCC (Cri) 403 : (1992) 2 SCR 197] (SCC pp. 480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without https://www.mhc.tn.gov.in/judis/ 28/44 Crl.A.No.12 of 2012 corroboration. (See Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376] )
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 :
1985 SCC (Cri) 127 : AIR 1985 SC 416] and Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169] .)
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] .)
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.[(1974) 4 SCC 264 : 1974 SCC (Cri) 426 : AIR 1974 SC 332] )
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645] )
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581] )
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to https://www.mhc.tn.gov.in/judis/ 29/44 Crl.A.No.12 of 2012 be rejected. (See State of Maharashtra v.
Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364] .)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769 : 1979 SCC(Cri) 519] .)
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342] )
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585] .)
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700 : 1982 SCC (Cri) 334] .)” (emphasis in original).
21.Further, in Bhadragiri Venkata Ravi Vs. Public Prosecutor, High Court of AP, Hyderabad reported in 2013 14 SCC 145 , in paragraphs 22, 23 and 24, it was held as under:-
https://www.mhc.tn.gov.in/judis/ 30/44 Crl.A.No.12 of 2012 “22.It is a settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused. In such a fact situation, the accused gets the benefit of doubt. (Vide Sanjay v. State of Maharashtra [(2007) 9 SCC 148 : (2007) 3 SCC (Cri) 91] and Heeralal v. State of M.P. [(2009) 12 SCC 671 : (2010) 1 SCC (Cri) 686] )
23. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same. In fact it is not the plurality of the dying declarations but the reliability thereof that adds weigh to the prosecution case. If the dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. But the statements should be consistent throughout.
24.In case of inconsistencies, the court has to examine the nature of the same i.e. whether they are material or not and while scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances. In case of dying declaration, as the accused does not have the right to cross-examine the maker and is not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be the result of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe https://www.mhc.tn.gov.in/judis/ 31/44 Crl.A.No.12 of 2012 and identify the assailant(s). (Vide Kamla v. State of Punjab [(1993) 1 SCC 1 : 1993 SCC (Cri) 1 : AIR 1993 SC 374] , Kishan Lal v. State of Rajasthan [(2000) 1 SCC 310 : 2000 SCC (Cri) 182 : AIR 1999 SC 3062] , Lella Srinivasa Rao v. State of A.P. [(2004) 9 SCC 713 : 2004 SCC (Cri) 1479 : AIR 2004 SC 1720] , Amol Singhv. State of M.P. [(2008) 5 SCC 468 : (2008) 2 SCC (Cri) 637] , State of A.P. v. P. Khaja Hussain [(2009) 15 SCC 120 : (2010) 2 SCC (Cri) 380] and Sharda v. State of Rajasthan [(2010) 2 SCC 85 : (2010) 2 SCC (Cri) 980 : AIR 2010 SC 408] .) “
22.In this case, as per the prosecution the neighbours viz.
P.W.1, 2, 10 and 13 are the persons who are stated to have seen the victim / deceased immediately after the occurrence. P.W.1 has not supported the case of the prosecution. P.W.2 had deposed that she had seen the victim / deceased coming out of the house burning and when she had enquired her she had told her that her saree caught fire while she was boiling milk. P.W.2 had further deposed that no one else was there at the house at that time and therefore she had taken the victim / deceased to the hospital. P.W.10 and P.W.13 had not supported the case of the prosecution. The prosecution has treated P.W.1, P.W.2, P.W.10 and P.W.13 as hostile witnesses. It is a specific statement of P.W.2 that she had seen the victim / deceased rushing out of the house burning and when she had enquired her she had told her that her saree caught fire https://www.mhc.tn.gov.in/judis/ 32/44 Crl.A.No.12 of 2012 when she was boiling milk. Thereafter, P.W.2 and P.W.10 had taken her to the hospital.
23.In Sampat Babso Kale and another v. State of Maharashtra reported in (2019) 4 SCC 739, the Hon'ble Apex Court has held that the best witnesses would have been the neighbours who reached the spot immediately after the occurrence and they would have been the best persons to state as to whether the victim / deceased told them anything about the occurrence or not.
24. Generally the neighbours and the persons who have seen the victim / deceased immediately after the occurrence are the best persons to state as to what the victim / deceased told them about the occurrence. Whereas strangely in this case the prosecution has treated them as hostile. Eschewing their statements, the next dying declaration of the victim / deceased is the one which is alleged to have been recorded by P.W.14, the Sub Inspector of Police who had reached the hospital on intimation from P.W.11, the duty doctor. During the time of recording of the statement by P.W.14, P.W.3, the elder sister of the victim / deceased was also present there and she and P.W.11, the duty doctor have attested the statement. The statement recorded by P.W.14, which has been https://www.mhc.tn.gov.in/judis/ 33/44 Crl.A.No.12 of 2012 marked as Ex.P1 has been treated as the first information based on wich the case has been registered in Crime No.328 of 2005 for offence u/s.309 I.P.C. In Ex.P1 the victim / deceased had told that her husband had chided her for not properly administering medicine to her child and he had left the house. After that since she was heartbroken due to the chiding of her husband, she had attempted to commit suicide by self immolation. After recording Ex.P1, intimation had been sent to the Judicial Magistrate / P.W.15 for recording dying declaration and he had recorded the statement, in which, the victim / deceased is stated to have told that while she was boiling milk for her child her husband had beaten her and that she attempted to commit suicide by self immolating her by pouring kerosene. It is the further case of the prosecution that the statement had been recorded by P.W.14 u/s.161 Cr.P.C. where the victim / deceased is stated to have told that she was subjected to cruelty by the Appellant herein and his 1st wife / A2 (since acquitted) and that on 26.07.2005 her husband had chided her for not administering the medicine properly and assaulted her and that his first wife had also assaulted her due to which she attempted to commit suicide.
25.The trial Court having analysed the statements had found https://www.mhc.tn.gov.in/judis/ 34/44 Crl.A.No.12 of 2012 that the statement alleged to be recorded u/s.161 Cr.P.C. from the victim / deceased was not true and had acquitted the 2nd accused. This Court is able to see that there had been improvements at every stage. In the first statement to the neighbours, the victim / deceased had stated that her husband had chided her and left and in the subsequent statements there had been improvements wherein she is stated to have told that her husband had assaulted her. The statements are not consistent and this Court is able to see that the subsequent statements are due to the result of tutoring and thereby making it suspicious.
26.In a full Bench decision of the Hon'ble Apex Court reported in Mohanlal Gangaram Gehani V. State of Maharashtra reported in (1982) 1SCC 700, the Apex Court has held that when there are multiple dying declarations, the 1st statement in point of time made by the injured person must be preferred to any of his subsequent statements. Now taking into consideration the 1st statement recorded by PW14 from the victim/deceased Ex.P1 to be true, this Court has to consider whether the act of the Appellant will amount to and attract the offence u/s.306 I.P.C.
27.The Hon'ble Supreme Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh reported in (2010) 1 SCC 750 https://www.mhc.tn.gov.in/judis/ 35/44 Crl.A.No.12 of 2012 referring to several earlier judgments has held as follows:
“10. “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 pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.” “Explanation 2 which has been inserted along with Section 107 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.”
11. 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 : 1995 SCC (Cri) 1157] In Mahendra Singh [1995 Supp (3) SCC 731 :
1995 SCC (Cri) 1157], 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.” The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of https://www.mhc.tn.gov.in/judis/ 36/44 Crl.A.No.12 of 2012 abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law.
12. The learned counsel also placed reliance on another judgment of this Court in Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088]. A threeJudge 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 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.”
13. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] 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 https://www.mhc.tn.gov.in/judis/ 37/44 Crl.A.No.12 of 2012 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 satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
14. The Court in Ramesh Kumar case [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant~accused having abetted commission of suicide by Seema may necessarily be drawn.
15. 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.
16. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2009) 11 Scale 24] 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.
17. Abetment involves a mental process of instigating a person or intentionally aiding a person in https://www.mhc.tn.gov.in/judis/ 38/44 Crl.A.No.12 of 2012 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 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 committed suicide.”
28.The view of the Hon'ble Apex Court in Gangula Mohan Reddy v. State of Andhra Pradesh referred supra had been reiterated by the Apex Court in the recent judgment in Gurcharan Singh v. State of Punjab reported in (2020) 10 SCC 200 in paragraphs 15, 16, 17 and 18 it is observed as follows ;
15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Section 107 IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However, what transpires in the present matter is that both the trial court as well as the High Court never examined whether the appellant had the mens rea for the crime he is held to have committed. The conviction of the appellant by the trial court as well as the High Court on the theory that the woman with two young kids might have committed suicide possibly because of the harassment faced by her in the matrimonial house is not at all borne out by https://www.mhc.tn.gov.in/judis/ 39/44 Crl.A.No.12 of 2012 the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.
16. The necessary ingredients for the offence under Section 306 IPC were considered in S.S. Chheena v. Vijay Kumar Mahajan [S.S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190 : (2011) 2 SCC (Cri) 465] where explaining the concept of abetment, Dalveer Bhandari, J. wrote as under :
“25. 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 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 that act must have been intended to push the deceased into such a position that he committed suicide.”
17. While dealing with a case of abetment of suicide in Amalendu Pal v. State of W.B. [Amalendu Pal v. State of W.B., (2010) 1 SCC 707 : (2010) 1 SCC (Cri) 896] , Dr M.K. Sharma, J. writing for the Division Bench explained the parameters of Section 306 IPC in the following terms : (SCC p. 712, paras 12-13) “12. Thus, 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 https://www.mhc.tn.gov.in/judis/ 40/44 Crl.A.No.12 of 2012 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.”
18. In Mangat Ram v. State of Haryana [Mangat Ram v. State of Haryana, (2014) 12 SCC 595 : (2014) 5 SCC (Cri) 127] , which again was a case of wife's unnatural death, speaking for the Division Bench, K.S.P. Radhakrishnan, J. rightly observed as under : (SCC p. 606, para 24) “24. We find it difficult to comprehend the reasoning of the High Court [Mangat Ram v. State of Haryana, Criminal Appeal No. 592-SB of 1997, decided on 27-5-2008 (P&H)] that “no prudent man is to commit suicide unless abetted to do so”. A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning.”
29.In Wasim V. State (NCT of Delhi) reported in (2019) 7 SCC 435, the Hon'ble Apex Court has held that there should be clear mens rea to commit the offence for conviction under Section 306 IPC. It https://www.mhc.tn.gov.in/judis/ 41/44 Crl.A.No.12 of 2012 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.
30.To sum it up in order to bring a case within the purview of Section 306 I.P.C, the prosecution should prove that 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 and only when the active role of the accused by an act of instigation is proved, the accused can be punished. Further, the prosecution has also to prove that the accused had mensrea to abet the victim / deceased to commit suicide.
31.Now looking at the material on record in this case, inconsonance with the judgment referred above, after the occurrence and immediately after admission in the hospital the victim / deceased had stated that on 26.07.2005 her husband had chided her for not administering medicine properly and he had left the house and that since https://www.mhc.tn.gov.in/judis/ 42/44 Crl.A.No.12 of 2012 she was agonised and heartbroken, she had intended to commit suicide and attempted to commit suicide by self immolation by pouring kerosene over her. This first statement made to P.W.14 had been marked as Ex.P1, based on which a case had been registered u/s.309 I.P.C. Only after the death of the victim / deceased, a further statement had been recorded from the victim's father and the case has been altered to one u/s.306 I.P.C. Further, in this case, even as per the evidence of P.W.5, the mother of the victim / deceased, the victim / deceased and the appellant are stated to have come to her house and that they were having a cordial relationship. Further nowhere in the evidence it has been stated that the petitioner had mensrea in respect of the suicide of his wife. Taking into consideration the entire facts on record, the act of the husband chiding the wife for not administering medicine properly to the child, at no stretch of imagination can be taken as an act of abetting suicide. As stated above there is no evidence that the appellant had intention and requisite mensrea to abet suicide. Looking from all angles, this Court comes to an A.D.JAGADISH CHANDIRA, J.
kas / tsh irresistible conclusion that the prosecution has not proved its case https://www.mhc.tn.gov.in/judis/ 43/44 Crl.A.No.12 of 2012 beyond all reasonable doubts and even taking into consideration Ex.P1 the appellant cannot held liable for commission of offence u/s.306 I.P.C.
32. In view of the above, the criminal appeal stands allowed and the judgment of conviction dated 14.12.2011 made in S.C.No.106 of 2011 on the file of the Additional District and Sessions Judge, F.T.C, Tirupattur, Vellore District is hereby set aside. The bail bond if any executed by the accused shall stand cancelled and fine amount paid, if any shall be repaid to the accused/appellant.
08.03.2021 Index: yes / no Internet : yes / no Speaking / Non Speaking order
1. The Additional District and Sessions Judge, FTC Tirupattur, Vellore District
2. The Public Prosecutor High Court of Madras Chennai 600 104 Crl.A.No.12 of 2012 https://www.mhc.tn.gov.in/judis/ 44/44