Considering the said fact, I am of the view that the period of imprisonment imposed by the Trial Court for the offence under Section 306 of the Indian Penal Code can be modified as from ten years rigorous imprisonment to seven years rigorous imprisonment. The sentence imposed by the Trial Court in all other respects are confirmed.           Accordingly, the Criminal Appeal is partly allowed. Index : yes/no                                                                             22.06.2022 Speaking order/Non-speaking order drm To The Sessions Judge Mahila Court, Chengalpet. The Public Prosecutor, High Court of Madras. D.BHARATHA CHAKRAVARTHY. J.,   drm

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

DATED : 22.06.2022

 

CORAM :

 

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.A.No.103 of 2019

 

Mari                                                                        ..          Appellant

Vs

The State rep. by

The Inspector of Police

Chunambedu Police Station

Kancheepuram                                                            ..         Respondent

 

Prayer: Criminal Appeal filed under Section 374(2) of CRPC, to set aside the judgment dated 11.01.2019 passed in S.C.113 of 2015 by the learned Sessions Judge Mahila Court, Chengalpet.

 

For the Appellant               :         Mr.N.Arunkumar

For the Respondent  :         Mr.S.Vinoth Kumar                                                                             Government Advocate (Crl. Side)

 

ORDER

 

On 26.04.2011, when P.W.18, Mr.Arokiaraj was on duty at Chunambedu Police Station, the statement recorded from the deceased victim Manjula in the hospital was brought, which was to the effect that the said Manjula had married the accused before ten years and they had two children. But, however the accused developed illicit intimacy with one Maragatham and on the day of occurrence, that is on 25.04.2011 at about 05.30 pm, she questioned her husband about his illicit intimacy and there was a fierce quarrel and she was sent out of the home. In order to placate her husband, she went out to the neighbor’s house and after some time, when she again came back, the accused questioned her that why had she returned and asked her to get out. Enraged by that, she poured a little amount of  kerosene on herself and tried to threaten her husband that she will commit suicide. Upon which, the husband told her that with little amount of kerosene she will not die and snatched the kerosene can and poured the rest of the kerosene on her and also gave a match box from his shirt pocket to her and goaded her to set herself on fire. Under these circumstances, she was forced to lit herself and sustained burn injuries and to that effect, the statement was given by her in the hospital.

 

2. On the strength of the said complaint, a case in Crime No.187 of 2011 was registered under Section 498(A) of the Indian Penal Code. Thereafter, the case was taken up for investigation and immediately thereof, on 26.04.2011, steps were taken to record the statement of the victim as her condition is said to have worsened. Accordingly, a letter in Exhibit P.6 was addressed by learned Judicial Magistrate, Madhuranthagam to the learned Sessions Judge, pursuant to which the Judicial Magistrate-II, Chelgalpattu, who was later examined as P.W.13, was deputed for recording the dying declaration and after being duly certified by the doctors as being stable and is under fit state of mind to make a declaration, on 26.04.2011, the dying declaration of the victim was recorded and thereafter, the victim succumbed to burn injuries on 28.04.2011. Later, postmortem was conducted and the First Information Report in the case was altered and P.W.19 completed the investigation and laid the final report, proposing the accused guilty for the offences under Sections 498(A), 306 and 4(b) of the Harassment of Women Act.

 

3. The case was taken on file by the Judicial Magistrate, Madhuranthagam, in PRC No.28 of 2013 and after appearance of the accused and furnishing of copies as per Section 207 of the code of Criminal Procedure, the case was committed to the learned Sessions Judge, Chengalpattu and was taken on file as SC.No.113 of 2015 and made over to Mahila Court, Chengalpattu. The Trial Court after consideration of the materials on record, framed charges under Sections 498(A) and 306 of  Indian Penal Code and the appellant herein denied the charges and stood trial.

 

4. Thereafter, to bring home the charges, the prosecution examined one Ramesh, brother of the victim as P.W.1, who spoke about the fact that his sister was married to the accused and there was cruelty to her. Prior to the occurrence on account of illicit relationship with one Maragatham and that he heard about the fact as to his sister setting herself on fire by pouring kerosene on herself. One Kanniyapan, another brother of the victim was examined as P.W.2, who also spoke on the same lines as that of the P.W.1. The prosecution examined one Lakshmi as P.W.3, who was the neighbor to the house of the victim and the accused, who however turned hostile. Similarly, one Murugesan was examined as P.W.4, who was also a neighbor and turned hostile. One Ettiyappan was examined as P.W.5, who was the witness to the observation mahazar. One Vinayagam, who was examined as P.W.6, was the witness to the confession but however turned hostile. One Dr.P.Parasakthi was examined as P.W.7, who conducted postmortem of the body of the victim and rendered medical opinion. One Sridharan was examined as P.W.8, who is the Forensic Expert, who examined the contents of the viscera and gave his report. One Dr.J.Selvaraj was examined as P.W.9, who was on duty in the hospital in which the victim was admitted and who gave treatment to the victim and certified that the victim was conscious and in a state of mind so as to give statement while the complaint was recorded by P.W.18, the Sub Inspector of Police. One Dr.Suresh Anandhan was examined as P.W.10, who also treated the victim and who had issued the accident register and he deposed the fact that she was conscious and oriented. One Dr.Srinivasan was examined as P.W.11, who was present at the hospital when P.W.13 Murugesan, namely the Judicial Magistrate recorded the dying declaration and who certified the victim was conscious and oriented and is in state of mind so as to give the dying declaration. One Kandhasamy was examined as P.W.12, who recorded the statement of the victim at the hospital and handed over to P.W.18. One Murugesan, the learned Judicial Magistrate who recorded the dying declaration was examined as P.W.13. One Sekar, who is also a neighbor, who was examined to bring home the factum as to victim burnt herself and that she was sent to the hospital but however, the said person examined as P.W.14 turned hostile. One Ravi was examined as P.W.15, who is also one of the brother of the victim, who also spoke in lines that of the P.W.1. One Sankar was examined as P.W.16, who is also a neighbor, turned hostile. One Selvamani was examined as P.W.17, who is the Village Assistant, who was present during the inquest and also signed as a witness to the mahazar. One Arokiyaraj was examined as P.W.18 who registered the First Information Report. One Balasubramaniam as P.W.19, who was the Investigating Officer who completed the investigation and laid the final report.

 

5. On behalf of the prosecution, the signature of P.W.5 in the observation mahazar was marked as Exhibit P.1, the postmortem report was marked as Exhibit P.2, the toxicology report was marked as Exhibit P.3, the endorsement of the Doctor in the complaint statement was marked as Exhibit P.4, the accident register copy was marked as Exhibit P.5, the endorsement of the Doctor on the dying declaration was marked as Exhibit P.6, the dying declaration of the victim was marked as Exhibit P.7, the signature of P.W.17 in the confession statement of the accused is marked as Exhibit P.8, the seizure mahazer is marked as Exhibit P.9, the complaint statement as stated by the victim to the P.W.12 is marked as Exhibit P.10, the First Information Report is marked as Exhibit P.11, the observation mahazer is marked as Exhibit P.12, the rough sketch is marked as Exhibit P.13, the alteration report filed in this case is marked as Exhibit P.14, the inquest report is marked as Exhibit P.15 and the admissible portion of the confession of the appellant accused is marked as Exhibit P.16. The prosecution also produced M.O.1, which is the five litre plastic can used for storing kerosene.

 

6. Upon being questioned about the material evidence and incriminating circumstances on record, the accused denied the same as false. Thereafter, no evidence was let in on behalf of the accused and the Trial Court thereafter proceeded to hear learned Public Prosecutor appearing on behalf of the State and learned counsel for the accused and by the judgment dated 11.01.2019, found the appellant guilty for the offence under Section 498(A) of the Indian Penal Code and sentenced him to undergo three years rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of the fine, to undergo further simple imprisonment for a period of three months and, for the offence under Section 306 of the Indian Penal Code, was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.5,000/- and in default of payment of the fine, to undergo further simple imprisonment for a period of three months. Aggrieved by the same, the present appeal is lodged before this Court.

 

7. Heard Ms.R.Revathi, learned Legal Aid Counsel on behalf of the appellant and Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) and perused the material records of this case.

 

8. According to learned counsel appearing on behalf of the appellant, the motive alleged by the prosecution is that the accused developed illicit intimacy with one Maragatham. The prosecution did not examine the said Maragatham in this case and therefore the motive itself is not proved by the prosecution. As far as the action of abetting suicide is concerned, it is a fact that the appellant accused and the victim were living together for more than ten years and they had two children aged five years and seven years and therefore, there was no any undue harassment or complaint by the victim and no complaint was lodged until the date of incident and therefore, P.W.1, P.W.2 and P.W.15, who are only the brothers of the victim, who have no personal knowledge, cannot depose anything about cruelty and therefore, the Trial Court errored in convicting the appellant for offence under Section 498(A) of the Indian Penal Code. As far as the offence under Section 306 of the Indian Penal Code is concerned, learned counsel would submit that in this case, there is no any independent witnesses for the quarrel or the grave cruelty committed by the accused, which could have been a proximate cause for the victim to have committed suicide. This apart, as per the case of the prosecution, that the victim and the accused had two children of age five and seven respectively and in this case, the prosecution did not examine the said children who could have been the best witnesses as to whether anything happened between the parents on the day of occurrence or not and for this purpose, learned counsel relied upon a judgment of the Honb’le Supreme Court of India in the case of Surinder Kumar vs. State of Haryana[1]. Learned counsel also relied upon a judgment in Ishwar Singh vs. State of Uttar Pradhesh[2], for the preposition that no other independent witnesses has been examined and the ones sought to be examined also turned hostile and the prosecution did not elicit any favourable answer in the cross examination of such hostile witnesses. Then, learned counsel would further submit that in this case, considering the fact that the occurrence happened on 25.04.2011 and the condition of the victim worsened on 25.04.2011, it is not safe to rely upon the dying declaration. In this regard, learned counsel would submit that the Doctor has been cross examined by suggesting that the victim would not have been in the proper state of mind to make a dying declaration. She would further submit that even in the dying declaration, the victim was asking for custody of both the children and therefore, it is clear that she was not in any kind of knowledge that she is going to die and therefore, the sanctity given to the declaration cannot be attached to the instant declaration and therefore, she would submit that the Trial court errored in convicting the appellant on the basis of the dying declaration and also prayed that this Court should acquit the accused and upturn the findings of the Trial Court.

 

9. Per contra, learned Government Advocate(Crl. Side) would submit that this is a case where the prosecution has taken due precaution while recording the dying declaration. Learned Judicial Magistrate has followed the procedure and the Doctor had duly certified that the victim was conscious, oriented and in a state of mind to give the declaration. The dying declaration is clearly and categorically recorded by the learned Magistrate and both the learned Judicial Magistrate who recorded the dying declaration and the Doctor who certified, were all examined as witnesses in this case. The defence in their cross examination was not able to extract any favourable answers, therefore, the dying declaration is duly recorded and proved in the manner known to law. In this case, the victim had also given the complaint and the said complaint statement is also marked and the Doctor who was present at the time of recording the complaint statement is also examined and at that point of time also, the victim was conscious and oriented and that statement also goes in tandem with the dying declaration and therefore the stellar piece of evidence by itself is enough to convict the appellant for both the offences under Sections 498(A) as well as Section 306 of the Indian Penal Code. He would submit that since the children were of very tender age and therefore, ideally left out and there is no error on the part of the prosecution in not examining them. When the victim herself, who is the best person, has spoken about what happened between her and her husband, and when the dying declaration was duly recorded, examination of the children or other independent witnesses was not necessary in the instant case. He would further submit that this is a case in where the prosecution has established charges to the hilt and therefore, the Trial Court is right in convicting the accused and he would pray that the accused has been rightly sentenced and therefore, the appeal is without any merit.

 

10. I have considered the submissions made on behalf of either side and perused the materials on record in this case.

 

11. Before proceeding to analyse the evidences on record, it is necessary for this Court to re-state the ingredients necessary for the purpose of proving the offence under Section 306 of the Indian Penal Code. At the outset, since the marriage had happened ten years ago, in this case, the presumption under 138(A) does not arise. The Hon’ble Supreme Court of India in Ramesh Kumar Vs. State of Chandigarh1, has categorically held in paragraph 20 as to what the meaning of the word “instigation” is and it is useful to extract the paragraph No.20 of the said Judgment as follows:-

“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.”

12. Therefore, it has to be proved that the accused committed cruelty or such other abnormal behavior, by which he had goaded her, enticed and encouraged the victim to commit suicide and this apart, the prosecution has to prove that he had the intention to do so.

 

13. In this case, the complaint statement given by the victim herself which is marked as Exhibit P.10, clearly and categorically states about the cruelty meted out to the victim and that once the accused broke the victim’s hand and was sent away to her parent’s house, so that, during the said period he continued to live peacefully with his concubine. Therefore, the said state of mind is very much there on record and thus, the prosecution has proved the motive and even though the said Maragatham, the alleged concubine, is not examined. In this regard, in the cross examination of the Investigating Officer, the Investigating Officer has also given reason for not examining Maragatham as, since the occurrence, she has absconded and vanished from the scene. Therefore, I feel that the prosecution has established the state of mind / mens rea on the part of the accused to encourage, entice and instigate the victim to commit suicide because, there is an intention that he may live thereafter with Maragatham, against which the victim was raising her voice and quarreling against the relationship.

 

14. In this case, the act done by the accused was categorically narrated by the victim in the dying declaration and it is useful to extract the same which reads as follows:

“cdf;F vd;d Mapw;W> brhy;yt[k;/

nej;J uhj;jphp vdf;Fk; vd; Cl;LfhuUf;Fk; rz;il/ vd; g[Urd; ntW xU bghz;iz kufjj;ij btr;RUe;jhU/ mij ehd; jl;of; nfl;nld;/ mg;ngh mtU nfhgkhap vd;id mor;rplhU/ eP vJf;Fo Cl;Ly ,Uf;fw btspna ngho/ eP brj;J nghd;D brhd;dhU/ mjdhy ehd; bfhrk; btspna nghapl;L g[UrDf;F nfhgk; jzpal;Lk;D ,Ue;Jl;L Cl;Lf;Fs;s te;njd;/

 

kUgoa[k; v’;fo te;jd;D nfl;lhU/ mtiu gaKWj;j bfhnrhz;L kz;bzz;iza vLj;J vd;nky Cj;jpfpl;nld;/ clnd vd; Cl;Lf;fhU kPjKs;s kz;bzz;iziaa[k; vLj;J vd;nky Cj;jpl;lhU/ mtU rl;il ghf;bfl;Ly ,Ue;J jPg;bgl;oia bfhLj;J bfhSj;jpfpl;L rht[od;dhU/ ehd; bfhSj;jpfpl;nld;/ vd; buz;L gr’;fiya[k; vd;fpl;l cl;Llr; brhy;Y’;f rhh;/”

 

15. Thus, it is clear that the accused had told the victim that with the little amount of kerosene she will not die. He has also poured the rest of the kerosene on her and he had taken a match box from his shirt pocket and handed over to the victim and asked her to set herself on fire and die. Therefore, the same clearly and categorically proves the instigation / abetment as held by the Hon’be Supreme Court of India in the decision cited supra and therefore in this case, the charges under Section 306 is proved to be hilt.

 

16. Similarly, from the statement of the victim herself, corroborated with the oral evidence of her brothers. It is clear that the accused has unleashed cruelty on the victim and therefore, the charges under Section 498(A) is also duly established by the prosecution in this case and I, accordingly find that the findings of the Trial Court as the appellant is guilty of both the charges under Sections 498(A) and 306 of the Indian Penal Code as in order and is sustainable and accordingly, I confirm the conviction.

 

17. Now, coming to the sentence, it may be seen that the Trial Court has sentenced the appellant to undergo rigorous imprisonment for a period of ten years and which is imposed as the maximum punishment. Even though, in this case, the offence is serious in nature and therefore as far as possible, the maximum punishment should be given, but, the only mitigating factor in this case is that there are two children, even at the time of commission of offence, aged five years and seven years and this Court while hearing the appeal, directed learned Government Advocate (Crl. Side) to get instructions as to the custody of the children and learned Government Advocate (Crl. Side) on instructions, submitted that in this case, the children were not taken by anybody from the victim / wife side. The parents of the appellant accused are also no more and therefore, the children are with the brother of the appellant accused and have been taken care of by them.

 

18. Considering the said fact, I am of the view that the period of imprisonment imposed by the Trial Court for the offence under Section 306 of the Indian Penal Code can be modified as from ten years rigorous imprisonment to seven years rigorous imprisonment. The sentence imposed by the Trial Court in all other respects are confirmed.

 

19. Accordingly, the Criminal Appeal is partly allowed.

 

Index : yes/no                                                                             22.06.2022

Speaking order/Non-speaking order

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To

 

1. The Sessions Judge Mahila Court, Chengalpet.

 

2. The Public Prosecutor, High Court of Madras.
   D.BHARATHA CHAKRAVARTHY. J.,

 

drm

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Crl.A.No.103 of 2019

 

 

 

 

 

 

 

 

 

 

 

 

 

22.06.2022

 

[1]           [2012 1 SCC(Crl) 230]

[2]           [1976 CJ(SC) 181]

1    (2001) 9 SCC 618