* mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 of IPC
* numerous cases referred to, to show that every sensitive wife's suicide is NOT a dowry death !!!
* husband and co rescued by HC many almost a decade after wife's death due to hanging
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CASE FROM JUDIS DOT NIC DOT IN SITE
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
The Inspector of Police
J4 Police Station, Chennai Respondent
Prayer:- This Criminal Appeal is filed against the judgement dated 6.1.2003 passed in SC.No.411/2001 by the Magalir Neethimandaram at Chennai, convicting and sentencing the appellant for the offence under Section 498A of IPC to undergo two years Rigorous Imprisonment and to pay a fine of Rs.2000/-, in default to undergo Simple Imprisonment for two months and under Section 306 of IPC to undergo Rigorous Imprisonment for eight years and to pay a fine of Rs.20000/-, in default to undergo Simple Imprisonment for one year and ordering both the sentences to run concurrently.
For Appellant : Mr.V.Padmanabhan, SC for
For Respondent : Mr.A.Saravanan, GA
This Criminal Appeal is filed against the judgement dated 6.1.2003 passed in SC.No.411/2001 by the Magalir Neethimandaram at Chennai, convicting and sentencing the appellant for the offence under Section 498A of IPC to undergo two years Rigorous Imprisonment and to pay a fine of Rs.2000/-, in default to undergo Simple Imprisonment for two months and under Section 306 of IPC to undergo Rigorous Imprisonment for eight years and to pay a fine of Rs.20000/-, in default to undergo Simple Imprisonment for one year and ordering both the sentences to run concurrently.
2. The case of the Prosecution is as follows:-
a. The Appellant/A1 is the son of A2 and brother of A3 and the husband of the deceased Poongodi. The marriage between the deceased and the Appellant took place on 17.5.1999 and after the marriage, they were living at Kotturpuram, Chennai and the parents of the Appellant were residing in the second Floor at Flat No.14 and the Appellant and the deceased were living in the first floor. At the time of the marriage, the deceased was given 25 sovereigns of jewels and the Appellant was given 5 sovereigns of jewels apart from the house hold articles. The deceased was working as a constable in police service. The Appellant coerced the deceased not to go for her job and used to beat the deceased by consuming alcohol and suspected the fidelity of the deceased. The deceased informed about those cruelties to her father Varadarajan PW.3 and mother Kanniammal PW.4 and sister PW.5 Malarkodi.
b. On 5.7.2000, the grand father of the Appellant died and PW.3 had invited the Appellant and his family for a customary feast, for which except the Appellant, all of them attended. At that time, there was swelling over the face of the deceased. When questioned, the deceased replied that she was beaten by the Appellant. After finishing the dinner A2 and 3 went to their house along with the deceased. At about 1.30 in the night, there was a phone message that the deceased was admitted in the hospital and subsequently, she was brought back to the house. On visiting to their house, PW.1 found that her daughter was dead and PW.1 was informed by the neighbours that the deceased died due to hanging.
c. PW.1 went to the Kotturpuram Police Station and gave a complaint Ex.P1 to PW.7 Inspector of Police and on receipt of Ex.P1, PW.7 registered a case in Cr.NO.708/2000 for the offence under Section 174 Code of Criminal Procedure and prepared FIR Ex.P3 and case was entrusted to PW.9 the Assistant Commissioner of Police of Guindy Division.
d. PW.9 took up the case for investigation and went to the place of occurrence and prepare observation mahazar Ex.P10 and a sketch Ex.P12 and recovered a polyester saree MO.1 under mahazar Ex.P11 and examined the witnesses and recorded their statements and sent a request to the District Collector to conduct inquest.
e. PW.8 the Executive Magistrate on receipt of the requisition conducted inquest over the body of the deceased at Royapettah Hospital and examined the witnesses and recorded their statements and Ex.P3 is the statement given by PW.3 and Ex.P6 is the statement of A2 and Ex.P7 is the statement given by PW.1 and Ex.P8 is the inquest report prepared by PW.8, stating that the death of the deceased was not due to any demand for dowry and Ex.P9 is the final report sent by the Tahsildar.
f. PW.8 sent a requisition to the Doctor to conduct postmortem and based on the said request, PW.6 Dr.Ravindran conducted postmortem over the body of the deceased and found the following injuries apart from the injury which is peculiar to suicidal hanging:-
"(a) Contusion 2.5x2 cms seen over to upper inner quadrant of left breast.
(b) Contusion 3x4 cm over the left hypogastric region close to midline.
(c) Bruising of the scalp seen in the frontal region 2x3 cms."
and opined in the postmortem report Ex.P2 that the deceased died of Asphyzia due to hanging.
g. PW.9 altered the case into one under Section 498A and 306 of IPC and the altered report is Ex.P13 and on 6.7.2000 arrested the all the three accused and sent them for judicial custody and examined the witnesses and recorded their statements and after getting the inquest report and postmortem report, after completing investigation, filed a final report against the accused under Sections 498A and 306 of IPC.
3. The case was taken on file in SC.No.411/2001 by the Magalir Neethimandaram at Chennai and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 9 witnesses (PW.1 to PW.9} and also relied on Exs.P1 to P13 and one material object Mo.1.
4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false.
5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.
6. This court heard the submissions of the learned counsel on either side and also perused the material records placed.
7. The Prosecution case in extremely short conspectus is that the deceased was working as a police constable and was married to A1 only one year and two months prior to her death. A1 was working as an Installation Engineer in a Private Company and he did not like the deceased working in the police Department. According to the Prosecution, he suspected her fidelity and used to quarrel with her and beat her. The incident in question had taken place on 5.7.2000 just within one year and two months of their marriage. On the said date, there was a customary feast hosted by Pw.3 and 4, the parents of the deceased in relation to the ritual connected with the death of A1's grand father and all the family members of A1 except him attended it. When the deceased was questioned regarding the absence of A1 and her face being found swollen, she had replied that A1 in an inebriated mood beat her and told her that he would not attend the feast and also did not like her in attending the said function. Thus, the allegation against the Appellant/A1 is that because of his cruel treatment more particularly on the date of the incident, she was ultimately driven to commit suicide and that is how the Appellant had abetted her suicide and had committed the offence under Section 498A and 306 of IPC.
8. Mr.V.Padmanabhan, the learned senior counsel for the Appellant strenuously contended assailing the judgement of the Trial Court that the learned Judge has appreciated the evidence in a mechanical manner and without proper consideration of the facts and circumstances on record, especially when the testimony of PW.3 to 5 is full of embellishments and improvements made for the first time before the court and submitted that the interest of justice required reappreciation of evidence. The learned senior counsel would submit that the Trial Court has based its findings purely on presumptions and assumptions without any basis to support such view and relied on the judgement of the Honourable Supreme Court rendered in the case of Nageshwar Sh.Krishna Ghobe Vs. State of Maharashtra [AIR-1973-SC-165] wherein the Honourable Supreme Court has cautioned the court from being influenced by assumption which is not supported by any material evidence and further observed that the same would result in miscarriage of justice. The learned senior counsel adverted to the observation made by this court rendered in the case of P.N.Saravana Bhavanandam Vs. The State of Tamil Nadu by Public Prosecutor, High Court, Madras and another [1999-1-MWN-Crl-178], wherein it is observed as below:-
"16. Though the evidence let in by both the sides to establish their respective pleas have been considered by both the courts below, they have come to the different conclusions. As a matter of fact, the narration of the events and the discussion and appreciation with reference to the materials by the Trial Court, in my view, are not satisfactory.
17. The court is expected to consider the materials available on record and decide about the veracity of the same and it is not expected to go beyond the parameters outlined by this Court and apex court with reference to the analysis of the evidence adduced before the court.
18. In my view, the judgement of the Trial Court is a classic example to show how the judgement should not be written. But, however in the anxiety to render justice to victim's family who died due to born injuries, leaving behind a female baby, the learned Assistant Sessions Judge has considered the evidence in minute details and concluded that the second Respondent must be punished severely.
18A. As held by the Apex Court, the Courts are not expected to take decision on mere emotions and they are only concerned with the materials in the case."
9. On the other hand, Mr.A.Saravanan, the learned Government Advocate for the State defended the judgement of the Trial Court and submitted that the evidence adduced by the Prosecution was reliable and should be appreciated in the background of facts and circumstances of the case.
10. The learned senior counsel for the Appellant took the court through the evidence of the relation witnesses and it was pointed out that there were material omission in the statement made to the Tahsildar and the investigating officer and those statements were made for the first time before the court. The learned senior counsel pointed out that the main allegation made by PW.3 and PW.4 that the Appellant insisted the deceased not to go for job and also did not like her going to her parental house is not stated to the Tahsildar during his enquiry and to the investigating officer at the time of investigation. Like wise, the allegation that he prevented the deceased from attending the customary feast hosted by her parents and told the deceased that he also would not attend was also stated before the court for the first time. The other serious allegation that the deceased had told them that she was beaten by the Appellant and that is the reason for the swollen face had not been stated to the Tahsildar.
11. During the cross examination of PW.3 and PW.4 they were confronted with all such statements with suggestion that no such material statements were made by them before the investigating officer at the time investigation. Though they denied to such suggestion but PW.9 the investigating officer admitted about such suggestion in the statement under Section 161 of Code of Criminal Procedure of PW.3 and PW.4. So is the omission to PW.8 the Executive Magistrate.
12. Admittedly, PW.5 the sister of the deceased is living separately, however, she had stated that in view of her closeness with her sister she had disclosed about the problems that the deceased had in her matrimonial home. According to her, the Appellant did not like the deceased in police uniform and the deceased had told her that as the Appellant used to be out of station for at least 20 days in a month and hence, she did not want to be at home alone. She had further stated that the Appellant suspected her conduct and used to check by telephoning to her station to find out whether she had come to work. She has further stated that when she came to her parent's house at the time of feast, she found the deceased with swollen face, but the deceased did not tell the reason.
13. She admitted in her cross examination that she has not divulged all the above facts to the investigating officer at the time of the investigation. The relevant portion in her evidence which discloses the said material omission in her statement to the investigating officer at the time of investigation is extracted below for better appreciation:-
VERNACULAR (TAMIL) PORTION DELETED
14. On a close scrutiny of the evidence of the Prosecution witnesses PW.3 to PW.5, it is seen that they have made deliberate improvements in their statements as stated supra in order to make it consistent with their version that the deceased was treated cruelly by the Appellant. In the case of Madhu Sudan Das Vs. Naraini Bai [AIR-1983-SC-114], their Lordships of the Honourable Supreme Court observed that when a witness holds the position of relationship, it is incumbent on the court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the value and the entire mosaic of facts appearing from the record.
15. The evidence indicated that the Appellant refused to come to the feast hosted by PW.3 and his family members and also did not attend the said function. The evidence disclosed that the other family members of the Appellant attended the said function. It appears that the deceased had complained about the behaviour of her husband in beating her in an ebriated mood. The Trial Court has commented upon the statement made by the Appellant to the Executive Magistrate admitting that he had consumed liquor. But, in the statement he has clearly stated that only on two occasions he had taken drinking, which was not liked by the deceased. There is no indication that he used to consume alcohol daily or frequently. It is not disputed that he used to be away from the matrimonial home in view of his job and the deceased also had to be away from her matrimonial home in view of her duty in the police service. On analysis of the entire evidence of all these witnesses, it is evident that it does not come out that the deceased committed suicide only and only because of the alleged ill treatment by the Appellant. Though the evidence disclosed that the Appellant did not approve the deceased going to job as a police constable but that is not sufficient to hold that he ill treated the deceased so much that the deceased was driven to commit suicide.
16. The learned senior counsel for the Appellant submitted that the evidence adduced by the Prosecution is not only sufficient to hold that the deceased was subjected to harassment or ill treatment by the Appellant, but also scant and sketchy to prove that the Appellant had abetted the suicide. The learned senior counsel placed reliance on a catena of decisions of the Honourable Supreme Court rendered in the cases of Sohan Raj Sharma Vs. State of Haryana [AIR-2008-SC-2108], Netai Dutta Vs. State of WB [2005-2-SCC-659], N.D.Nanjappa Vs. State of Karnataka [2007-14-SCC-763], Chanchal Kumaria and others Vs. Union Territory, Chandigarh [AIR-1986-SC-752], Samir Samanta and another Vs. The State [1991-3-CRIMES-209], Shyama Devi Vs. State of WB [1987-CRL.LJ-1163] and Ravindra Pyarelal Bidlan and others Vs. State of Maharashtra[1993-Crl.LJ-3019] in support of his submission.
17. It is reiterated in all the above decisions of the Honourable Supreme Court that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. More active role which can be described as instigating or aiding the doing of a thing was required before a person can be said to be abetting the commission of offence Section 306 of IPC.
18. At this juncture, it is more relevant to refer to the observations made by the Honourable Supreme Court in the case of Hans Raj Vs. State of Haryana [AIR-2004-SC-2790] wherein their Lordships refer to the slender evidence like frequent quarrels between the husband and wife sometimes resulting in physical assault on account of husband being addicted to consumption of 'Bhang' held that no presumption could be raised under Section 113A of the Evidence Act. More so, when the Prosecution was guilty of improving its case from stage to stage. At paragraph 12 of the said judgement, it is stated as below:-
"12. Having one through the evidence on record we are satisfied that the Prosecution has sought to improve its case at the trial by introducing new facts and allegations which were never stated in the course of investigation. All that appears to have been satisfactorily established is that the Appellant was addicted to 'Bhang' and that frequent quarrels took place when his wife Jeeto objected to his taking 'Bhang'. Though it is stated in the FIR that the Appellant had complained about the treatment meted out to his sister Naro by Fateh Chand, there is evidence of Fateh Chand, PW.3 himself that he was living happily with Naro,his wife, who happened to be the sister of the Appellant. One fails to understand why the Appellant should make such allegation when his sister was living happily with Fateh Chand, pw.3 As to the frequent assaults on the deceased by the Appellant and her reporting the matter to her father and brother, there appears to be no reason why, if these facts were true, no such allegation was made in the course of investigation by the Prosecution witnesses PW.2 and 3. We are, therefore, satisfied that the Prosecution has been able to establish its case only to the extent that the applicant was addicted to 'Bhang' which was opposed his wife Jeeto and on account of such opposition there used to be frequent quarrels and may be on some occasions Jeeto was assaulted by the Appellant. Beyond this we find the other allegations made by the Prosecution to be unacceptable."
19. It is the essence of the crime order of abetment of suicide that the abettor should be proved to have substantially assisted in the commission of the offence of suicide. Instigation, incitement, provocation, encouragement, insinuation which words cannote different meanings are some of the acts which may constitute as 'abetment' for commission of suicide. But, all such acts or any of them have to be positive and patent in nature of such a degree, that the direct result of such acts may be none other, but the commission of suicide. Stray domestic quarrels, perfunctory abuses by husband or in-laws to the deceased, crude and uncultured behaviour of the husband like drinking being mundane matters of normal occurrence, will not go to form and constitute "abetment" unless these acts of conduct singly or cumulatively are found to be of such formidable and compelling nature as may lead to the commission of offence.
20. In the instant case, there is no cogent and dependable evidence to the effect that the Appellant ill treated his wife constantly and his conduct was of willful and is offensively unjust to his wife which drove her to commit suicide. In this case, it appears from the evidence placed on record that the deceased has dropped down as a sensitive girl not able to withstand even normal jolts of life.
21. In the case of Jagadish Chandra Vs. State of Haryana [1988-Crl.LJ-1048], it is held that the fact of willful conduct of the accused in taking liquor almost daily despite constant protest by his wife and his habit of coming home late at night does not fulfill the essential ingredients of "cruelty" as given in Section 498A of IPC.
22. In the decision reported in the case of State of WB Vs. Orilal Jaiswal [1994-SCC-Crl-107, the Honourable Supreme Court observed as below:-
"17.... 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 the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires 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."
23. The above decision only illustrate that mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 of IPC.
24. Considering the entire facts and circumstances of the case, I am of the view that the conviction and sentence imposed on the Appellant in SC.No.411/2001 cannot be sustained and the same are liable to be set aside.
25. In the result, this Criminal Appeal is allowed. The conviction and the sentence imposed on the Appellant in SC.No.411/2001 are set aside and the Appellant is acquitted of all the charges levelled against him. It is seen from the records that the Appellant had been enlarged on bail and the bail bond if any executed by the Appellant shall stand terminated and the fine amount if any paid by him shall be refunded to him.
1.The Magalir Neethimandaram at Chennai
2.The Public Prosecutor, High Court,