- Couple married with a young son
- Wife supposed to be suffering from depression
- wife wants separate residence, away from elderly in laws (meaning throw the inlaws out)but this was NOT possible
- wife wanted to marry a government servant, this did not happen, so wife was very depressed
- Unfortunately one day, Wife commits suicide
- Wife's side claim dowry death and harassment
- Lower courts convict husband and his parents u/s 306 and 498a
- Madras HC rejects 306 but still convicts under Sec 498a !!
- Husband and family in jail !!
- With the husband and family in jail, who takes care of the young son ?? young kid ??
- When a woman dies, the husband and family are declared the killers
- However 2 times more men commit suicide and still no one arrests the wife or her parents
- Yeah ..we need more women friendly laws !!!!
- Make it harder for men
- Kill them fast :-(
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.704 of 2008
3.Nirmala .. Appellants/Accused 1 to 3
State rep. by
Inspector of Police
All Women Police station
Pothanur, Coimbatore District. .. Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., against the judgment of conviction and sentence dated 19.09.2008, made in S.C.No.257 of 2006 on the file of the Sessions Court, Mahila Court, Coimbatore.
For Appellant : Mr.V.Gopinath, senior counsel for Mr.Arasu Ganesan
For Respondent : Mr.C.Emalias Government Advocate (crl.side)
J U D G M E N T
The criminal appeal arises out of the judgment of conviction and sentence, dated 19.09.2008, made in S.C.No.257 of 2006 on the file of the Sessions Court, Mahila Court, Coimbatore, whereby the accused were convicted for the offence under Sections 498A IPC and 306 IPC. Accused 1 to 3 were convicted for the offence under Section 498A IPC and sentenced to undergo one year simple imprisonment each and to pay a fine of Rs.1,000/- each in default in payment to undergo six months simple imprisonment each. They were convicted for the offence under Section 306 IPC and sentenced to undergo ten years rigorous imprisonment each and to pay a fine of Rs.5,000/- each in default in payment to undergo 1 year simple imprisonment each.
2.The respondent has filed a charge sheet against the appellants/accused stating that the marriage between A1 and the deceased Kavitha was solemnized on 26.01.2001. Due to the lawful wedlock, she gave birth to a male child. A2 and A3 are father-in-law and mother-in-law of the deceased. On the fateful day, (i.e.) on 02.08.2005, at 9.00 a.m., the deceased unable to bear the cruelty caused by the accused 1 to 3, committed suicide by hanging in her matrimonial home. Thereby the accused 1 to 3 were committed the offence under Sections 498A and 306 IPC.
3.The case of the prosecution is as follows:
(i) P.W.1/Kumarasamy and P.W.2/K.Saraswathi are parents of the deceased Kavitha and they are having three daughters and the deceased Kavitha is the third daughter. P.W.3/Premalatha and P.W.4/Sasikala are sisters of the deceased Kavitha.
A1/Srinivasan is the husband of deceased Kavitha.
A2/Shanmugam and A3/Nirmala are her parental laws.
The marriage was performed between A1 and deceased Kavitha on 26.01.2001.
Due to their lawful wedlock, she gave birth to a male child namely, Visweshwaran, who was studying L.K.G.
At the time of marriage, 20 sovereigns of gold jewels and house hold articles to the tune of Rs.64,000/- were given to the deceased Kavitha.
When the deceased Kavitha was in her matrimonial home, P.W.1 used to contact her daughter over phone regularly.
By the time, deceased Kavitha informed that the accused were not happy towards her as she bring inadequate dowry and it would denigrate their prestige in the society.
The deceased Kavitha also used to tell about the ill-treatment caused by the accused persons and by no reason, they made quarrel with her.
P.W.7/Maniyan, who is the house owner, deposed that he rented his house to the accused family and after their marriage only, they came to reside in his house.
P.W.8/Manoharan, who is the friend of A1, stated that he also helped to reunite A1 and her wife, as they were quarreled with each other.
P.W.1 also advised her daughter that everything will be alright in due course and to bear this type of trouble till her son is grown up and left to his native place.
(ii) On 15.06.2001, P.W.1 along with P.W.2 went to Pothanur inorder to meet his daughter. While so the deceased told about the failure of her matrimonial life and further told that it is highly difficult for her to live with the accused persons. She also told that she was subjected to torture and harassment made by the accused persons.
(iii) On 02.08.2005, at 8.00 a.m., A1 contacted P.W.1 over phone and asked him to take his daughter Kavitha to his house, since there was problem arose between them. Then Kavitha contacted P.W.1 over phone and told him that it is highly difficult to live with A1 and she also told about the unbearable harassment caused by the accused persons. On the same day, at 9.15 a.m., A1 again contacted P.W.1 over phone and informed that her daughter Kavitha was hanging in the ceiling of the room in the matrimonial home and committed suicide.
(iv) P.W.14/Balakrishnan, who was residing at upper portion of the deceased house, helped A1 to remove the saree, which was used by Kavitha for hanging. Immediately, A1 along with P.W.14 took Kavitha to S.M. Hospital, where P.W.10/Dr.Bhavani Alagan examined her and declared her dead.
(v) After hearing the information from A1, P.W.1 along with his relatives proceeded to Pothanur and reached the house of the accused and noticed the dead body of deceased was lying on the floor. Hence, P.W.1 lodged a complaint before Pothanur All Women Police station.
(vi) P.W.12/Manimegalai, the Sub-Inspector of Police, Pothanur, received Ex.P1 complaint on 02.08.2005, at 2.00 p.m. and registered a case in Crime No.30 of 2005 under Sections 498A and 306 IPC and prepared Ex.P7 F.I.R. Since the deceased died within seven years from the date of her marriage, P.W.12 sent Ex.P7 F.I.R. along with Ex.P1 complaint to the Revenue Divisional Officer/P.W.16/Karthiga and P.W.17/Deputy Superintendent of Police.
(vii) P.W.17/Gopalsamy, the Deputy Superintendent of Police, received the copy of Ex.P7 F.I.R. from P.W.12, took up the matter for investigation. On 02.08.2005, at 2.30 p.m., he went to the place of occurrence and prepared Ex.P2 observation mahazar and drew Ex.P18 rough sketch in the presence of P.W.5/Ramu and P.W.6/Subramani. He took steps to take photograph of the deceased Kavitha.
P.W.9/Karthikeyan, Photographer, took photos and the same were marked as Ex.P5 and the negatives were marked as Ex.P6 and the video coverage was marked as M.O.1/Video C.D. On the same day, P.W.17 recovered M.O.2/two pieces of saree used for hanging, and M.O.3 to M.O.7 under Seizure mahazar Ex.P19 in the presence of above said witnesses.
(viii) In the meanwhile, P.W.16/R.D.O. went to Coimbatore Medical College Hospital and conducted inquest over the dead body of Kavitha on 03.08.2005 in the presence of Panchayatdars and examined the witnesses and recorded their statements. The statement of P.W.1 and P.W.2 were marked as Exs.P12 and P11 and the statement of Panchayatdars were marked as Ex.P13. Inquest report was marked as Ex.P15. On the basis of the enquiry, P.W.16 sent Ex.P14/R.D.O. report, in which, it was stated that the death is not due to dowry. After inquest, P.W.16 sent the body of the deceased for post-mortem along with Ex.P16 requisition.
(ix) P.W.11/Usha, Grade-I, P.C., handed over the body of Kavitha along with Ex.P16 requisition to P.W.13/Dr.Thiraviyaraj, who was the Professor in Kovai Medical College Hospital, for conducting autopsy. P.W.13 gave Ex.P8 post-mortem certificate and sent the viscera for chemical analysis. On the basis of Ex.P10 final report, the Doctor opined that the deceased would appear to have died of hanging.
(x) On 03.08.2005, P.W.17 examined the witnesses and recorded their statements. Then, he arrested the accused at 8.30 p.m. and sent them to judicial custody. After completing his investigation, he filed a charge sheet against the accused for the offence under Sections 306 and 498A IPC.
4.The learned trial Judge after following the procedure framed necessary charges against the accused. Since the accused pleaded not guilty, the trial Court examined P.W.1 to P.W.17 and marked Exs.P1 to P19 and M.O.1 to M.O.7. The trial Court placed the incriminating evidence before the accused, the accused denied the same in toto. On the side of the accused, they were marked Exs.D1 and D2. They also filed written statement, stating that the deceased Kavitha left one suicide note Ex.D1, in which she categorically noted that she was going to take extreme step to commit suicide of her own reason and no one had abetted her for committing suicide. After considering the oral and documentary evidence, the trial Court convicted the accused/appellants for the offence under Sections 306 and 498A IPC and sentenced them as stated above, against which, the accused/appellants preferred this appeal.
5.Challenging the conviction and sentence passed by the trial Court, learned counsel appearing for the appellants would submit that as per the evidence of P.W.8/Manoharan, he carried on mediation between A1 and deceased Kavitha. He went to the house of P.W.3, who is the sister of Kavitha and at that time, Kavitha told him that she wants to live with A1 separately, since A1 is the only son, his parents are not willing to set up the separate family. Learned counsel further submitted that the deceased is having depression and hence, she committed suicide on her own reason. He pointed out the evidence of P.W.1 and stated that Kavitha wanted to marry a Government servant and hence, there was a delay in her marriage. A1 is not a Government servant and he is doing business and as his character was good, Kavitha was given marriage to him. Since Kavitha was a B.Com., graduate, she wants to join Bank service, which was refused by her in-laws. As per the evidence of P.W.3, in page-21 of the typed set of papers, she was stated that her sister was attempted to commit suicide twice before this incident. It is to be noted that Ex.D1 is the suicide note, which was seized from the place, where the body of Kavitha has been laid down, but the document was not placed before the Court and the trial Court has not considered this aspect. It is further submitted that P.W.1 to P.W.4 are relative witnesses and they are interested witnesses. As per the evidence of P.W.7 and P.W.8, the deceased Kavitha made petty quarrels with A1. Most of the independent witnesses deposed that the deceased had committed suicide on her own reason only. There is no evidence to show that the deceased was subjected to cruelty and hence, there is no mensrea for abetment of committing suicide. Therefore, he prayed for allowing of this appeal.
6.Resisting the same, the learned Government Advocate (Crl. Side) submitted that P.W.1 to P.W.4, who are the parents and sisters of the deceased, are competent persons to speak about the cruelty met out by the deceased. Hence, their evidence are trustworthy and reliable. From their evidence, it is clear that the deceased was subjected to continuous harassment, which forced her to commit suicide. She already attempted to commit suicide twice in her lifetime. Since the deceased committed suicide in her matrimonial home, A1 to A3 are bound to explain as to why she committed suicide, but no explanation has been offered by them. He further submitted that written statement filed by the accused is clearly proved the motive of accused persons and they took xerox copy of Ex.D1 suicide note, in which, date and time were not mentioned. The original suicide note was not marked before the Court, hence Ex.D1 is not an admissible evidence. The learned trial Judge considered all the aspects and came to the correct conclusion. Hence, he prayed for dismissal of the appeal.
7.Considered the rival submissions made on both sides and the materials available on record.
8. On a perusal of record, P.W.1/Kumarasamy and P.W.2/Saraswathi are parents of the deceased Kavitha and they are having three daughters and the deceased Kavitha is the third daughter. P.W.3/Premalatha and P.W.4/Sasikala are sisters of the deceased Kavitha. A1/Srinivasan is the husband of deceased Kavitha. A2/Shanmugam and A3/Nirmala are her father-in-law and mother-in-law respectively. The marriage was performed between A1 and the deceased Kavitha on 26.01.2001. Due to their lawful wedlock, she gave birth to a male child namely, Visweshwaran, who was studying L.K.G., at the time of occurrence. Kavitha was committed suicide by hanging on 02.08.2005 in her matrimonial home.
9.Now this Court has to decide as to whether deceased Kavitha has suffered continuous harassment in the hands of the accused persons. P.W.7/Manian is the owner of the house, where the accused persons and the deceased Kavitha were residing in the lower portion of the house after their marriage. P.W.14/Balakrishnan was residing in the upper portion. P.W.15/Jayanthi, who was residing at the right hand side of the deceased house, deposed that Kavitha was not mingled with others and during trial, she turned hostile. P.W.8/Manoharan, who knows A1 from his childhood, deposed that the deceased Kavitha is of the habit of being taking seriouly even for small matters. In respect of watching T.V., a problem arose between them, then she was taken to her maternal home. So P.W.8 went to P.W.3's house and had talks. At that time, P.W.1, P.W.2, her paternal uncle, aunt came there and told him that A1 assaulted Kavitha and hence, the problem arose. P.W.8 advised her to join with him. Thereafter, she returned back to her matrimonial home. At that time, P.W.2 insisted that A1 and Kavitha should live separately. Since A1 is the only son to his parents, it is not appropriate to make them separate living. Thereafter, A1 took Kavitha to her matrimonial home. P.W.8 fairly conceded that after two years of this settlement, the deceased Kavitha committed suicide. It shows that the occurrence had taken place after four years from the date of her marriage and there was difference of opinion arose between the spouses frequently.
10.It is pertinent to note the evidence of P.W.1, who is the father of deceased Kavitha. P.W.1 in his evidence, stated that on 02.08.2005, at 8.30 a.m., A1 contacted him over phone to take her daughter to his house due to quarrel arose between them. Thereafter, Kavitha contacted P.W.1 over phone and told him that A1 causing unbearable trouble and she is not inclined to live there. Within = hour to the telephonic talk, A1 again contacted him over phone and told that his daughter Kavitha committed suicide by hanging herself and died. That factum has been corroborated by P.W.15/Jayanthi, who is her neighbour. In her cross-examination, she stated that on the date of occurrence, she noticed that Kavitha was talking over phone near the Grocery shop and she returned to her house in weeping condition. At that time, mother of P.W.15 questioned Kavitha as to why she was weeping. This factum would prove that the deceased contacted her father over phone on the date of occurrence.
11.As per the evidence of P.W.1, in his chief-examination, he deposed that A1 contacted him over phone and told him that there was quarrel arose between them and hence, he insisted him to take her to his house, but A1 did not mention that problem. In the written statement filed by the accused persons, they mentioned that the deceased Kavitha was upset, since her son Visweshwaran did not study well and due to this, there was quarrel arose between them. But A1 never mentioned the above incident to P.W.1, when he contacted him over phone. After A1 made a call to P.W.1, the deceased Kavitha contacted her father over phone and told that it is highly difficult to live with A1 and she also told about the unbearable harassment caused by the accused persons. Within = hour, A1 again made a call to P.W.1 and informed that her daughter was died by committing suicide. It would reveal that on the date of occurrence, there was quarrel between both A1 and the deceased Kavitha. Since Kavitha died in her matrimonial home, the appellants/accused 1 to 3 are competent persons to give explanation for commission of offence.
12.As per the evidence of P.W.14/Balakrishnan, who is residing in his brother-in-law's house for rent, deposed that he knows Kavitha and A1 for the past eight months. On 02.08.2005, after hearing noise from the house of the deceased, he went to there and found Kavitha was hanging in a saree on the ceiling of the room. He helped A1 to cut and remove the saree from the neck of Kavitha and then, they took her to S.M. Hospital, where P.W.10/Dr.Bhavani Alagan examined Kavitha and declared her dead. In his cross-examination, he stated that one Ambujam mami informed him that Kavitha contacted somebody over phone in the Grocery shop and she was returned in weeping condition. In such circumstances, his evidence would reveal that he is supporting the accused persons.
13.Now this Court has to decide as to whether the evidence of P.W.1 to P.W.4, who are the relatives of the deceased Kavitha, are reliable. P.W.2 in her cross-examination, fairly conceded that during vacation time, the accused came with car and they visited the temples at Thiruchi. P.W.1 in his evidence, stated that her daughter is not having an habit of writing letters and she used to contact him over phone. In his cross-examination, P.W.1 deposed that Kavitha was not mingled with her neighbours, since the accused persons restrained her to talk with them. As per the evidence of P.W.3, whenever Kavitha used to stay in her house, she was seen worried and told that at the instigation of A2 and A3, A1 often made quarrel with her. At that time, P.W.3 consoled and convinced her that there would be ups and downs in life and assured to see later. As per the evidence of P.W.4, whenever Kavitha used to contact her over phone, she complained that her husband and in-laws caused cruelties and ill-treated her. Considering the evidence of P.W.1 to P.W.4, they categorically stated that as to how the deceased Kavitha was subjected to cruelty. According to Section 498A IPC, cruelty consists of both mental and physical cruelty. Because of the attitude of A1 to A3, Kavitha got depressed. Furthermore on 02.08.2005, Kavitha was subjected to harassment, due to the quarrel arose between A1 and herself. As already seen that A1 contacted P.W.1 over phone on the date of occurrence and asked P.W.1 to take his daughter Kavitha to his home. Thereafter, the deceased Kavitha contacted her father/P.W.1 over phone and intimated that she was subjected to cruelty and harassment in the hands of the accused persons for the reason, she did not want to live. Within = hour, A1 intimated to P.W.1 that his daughter died by hanging herself. It shows that during morning time on 02.08.2005, there was quarrel between the spouses, which forced her to commit suicide.
14.At this juncture, it is appropriate to consider the decisions of Apex Court relied upon by the learned counsel for the appellants/accused.
(i) 1995 Supp (3) SCC 731 (Mahendra singh and another Gayatribai v. State of M.P.) para-2 is incorporated as follows:
| "2. .. .. Abetment has been defined in Section 107
| IPC to mean that a person abets the doing of a thing
| who firstly instigates any person to do a 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. Neither of
| the ingredients of abetment are attracted on the
| statement of the deceased. The conviction of the
| appellants under Section 306 IPC merely on the
| allegation of harassment to the deceased is not
| sustainable. The appellants deserve to be acquitted of
| the charge. "
In the above decision, it was held that conviction for abetment of suicide merely on the allegation of harassment to the deceased is not sustainable.
(ii) 2010 Cri.L.J. 2110 (Gangula Mohan Reddy v. State of Andhra Pradesh), in which, it was held that mens rea and active act by accused essential to constitute offence.
(iii) (2007) 2 MLJ (crl) 1830 (SC) (Kishori Lal v. State of Madhya Pradesh) in which, it was held that there must be a clear proof of direct or indirect acts of incitement to the commission of suicide and merely on the allegation of harassment, conviction in terms of Section 306 IPC, is not sustainable.
15.At this juncture, it is appropriate to consider whether the prosecution has proved that the accused are abetting Kavitha for committing suicide? As per the dictum of the Apex Court, the mens-rea is an essential component of abetment and there must be an overt act on the part of the accused in course of the alleged instigation. It must be shown that the instigation was prior to and at the point of time. It was directly or indirectly to give a suggestion to the person to do a certain act. An abettor must be shown to have intentionally aided the commissioning of the crime and mere proof that the crime charged could not have been committed without the interposition of the alleged abettor, is not enough compliance with the requirement of Section 107 IPC. The word "instigation" involves two things; one is physical act or omission, while the other is mental act. The physical act or omission involved in the "instigation" is "goading or urging forward" another. Such physical act of goading can be committed either by words or deed, as the meaning of the word suggests. "Goading" can be committed also by any other wilful conduct, may be by even an adamant silence. The physical act of "urging forward" or "instigation" involves doing of an act by strongly advising, persuading to make a person to do something or by pushing or forcing a person in order to make him move more quickly in a forward direction. Thus, both the physical acts in "goading or urging forward" can be committed by doing some act either verbal or physical or even by wilful omission or conduct. But here, there is no evidence to show that the appellants/accused are instigated or incited or aided to commit suicide.
16.Now it is appropriate to consider as to whether Ex.D1 suicide note is an admissible evidence. Ex.D1 is the suicide note and it contains only two lines. There is no date and time in Ex.D1. The accused persons in their written statement stated that before handing over original suicide note they took xerox copy of the same. In my opinion, no reliance can be placed on Ex.D1, since there is no evidence to show that the document was written on the same day and it has not fastened sanctity for deciding the case. From the evidence of Doctors, it is clear that the deceased was died due to hanging. While perusing M.O.1/video C.D., it shows that the police entered the room where deceased Kavitha committed suicide. It shows that Kavitha committed suicide by hanging. But the prosecution miserably failed to prove that the accused are guilty of the offence under Section 306 IPC, for abetting the deceased to commit suicide.
17.Now this Court has to decide as to whether the appellants/accused are guilty of the offence under Section 498A IPC. It is true, the appellants/accused 1 to 3 are competent persons to speak about as to why Kavitha committed suicide. Here, P.W.1 deposed that his son-in-law contacted him over phone that due to quarrel arose between them, he asked him to take Kavitha to his house. In his chief-examination, he stated as follows:
@ // // Kjyhk; vjphp vdJ kfis Fr;rpahy; moj;Jk; Jd;g[Wj;jp te;jhh;/ 2/8/2005 md;W Kjyhk; vjphp vd;id bjhiyngrpapy; bjhlh;g[ bfhz;lhh; mt;tpjk; mth; vd;dplk; bjhlh;g[ bfhz;L fhiy 8/30 kzpastpy; bjhiyngrpapy; tPl;oy; rz;ilahf ,Uf;fpwJ/ eP';fs; clnd te;J kfs; ftpjhit miHj;J bry;Y';fs; vd;whh;/ mjd; gpwF vdJ kfs; ftpjh bjhiyngrpapy; bjhlh;g[ bfhz;L vjphpfs; jd;id jh';f Koahj bfhLik bra;tjhft[k; jdf;F thHnt gpof;ftpy;iy vd;W Twpdhh;/ mt;tpjk; ngrpa 1-2 kzp neuk; fHpj;J bjhiyngrpapy; bjhlh;g[ bfhz;L vdJ kfs; ftpjh Jhf;F nghl;L bfhz;L ,we;Jtpl;ljhf vd;dplk; jfty; brhd;dhh;/ // // @
P.W.15 also corroborated the same by noticing that Kavitha returned in weeping condition after she contacted over phone. P.W.1 also stated in his chief-examination that A1 used to beat her daughter using stick. While considering the evidence of P.W.3, the deceased Kavitha was ill-treated by her in-laws. In the above said circumstances, I am of the view, the deceased Kavitha committed suicide due to the cruelty, which consists of both mental and physical, caused by the appellants/accused. Hence, I am of the view, the prosecution has proved that A1 to A3 were guilty of the offence under Section 498A IPC beyond all reasonable doubt. Therefore, the conviction and sentenced passed by the trial Court for the offence under Section 306 IPC are hereby set aside and the judgment of conviction and sentence for the offence under Section 498A IPC is hereby confirmed.
18.In fine, The Criminal Appeal is partly allowed.
Judgment of conviction and sentence passed by the trial Court under Section 306 IPC is hereby set aside.
Judgment of conviction and sentence passed by the trial Court under Section 498A IPC is hereby confirmed.
Bail bond, if executed by the appellants/accused shall stand cancelled.
The fine amount of Rs.5,000/- paid by the appellants/accused, if any, for the offence under Section 306 IPC, is ordered to be refunded.
The trial Court is directed to secure the custody of the accused/appellants to undergo the remaining period of sentence.
1. Sessions Court,
2. Inspector of Police
All Women Police station
3. The Public Prosecutor
High Court, Madras.
4. The Record Keeper
Criminal Section, High Court,