Srinath Prasad
vs
State by Inspector of Police,
J-6, Thiruvanmiyur Police Station,
Thiruvanmiyur
Indian Penal Code (45 of 1860), Sections 498-A and 306 – Indian Evidence Act (1 of 1872), Section 32 (1) – Abetment of suicide – Conviction and sentence – Appeal – Letters written by deceased relating to cause of death exhibiting circumstances leading to death would fall within four corners of Section 32(1) of Evidence Act – But letters do not contain any incriminating materials to attract ingredients of offence under Section 306 IPC – Said letters only disclose confused state of mind and depression of deceased – Neither contents of letters nor evidence of witnesses disclose any concrete instance which can be termed as cruelty – Prosecution miserably failed to prove case against appellant/accused for offences under Sections 498-A and 306 IPC – Impugned judgment of conviction unsustainable in law – Appeal allowed.
Held: A reading of the provision under Section 32(1) of the Indian Evidence Act coupled with the principle laid down by the Hon’ble Apex Court it is abundantly clear that the letters written by the deceased, Exhibits P-2 to P-4 relating to the cause of the death exhibiting the circumstances leading to the death would fall within the four corners of Section 32(1) of the Indian Evidence Act and therefore admissible.
By reading the above said letters of the deceased, Exhibits P-2 to P-4, by no stretch of imagination it could be stated that the ingredients of the offence under Section 306 IPC are made out against A 1. As already pointed out, the said letters only disclose the confused state of mind and depression of the deceased.
================= judgement =================
Madras High Court
Srinath Prasad vs State By on 10 August, 2010
DATED : 10.08.2010
CORAM
THE HONOURABLE MR.JUSTICE K.N.BASHA
CRL.A.No.60 of 2004
Srinath Prasad .. Appellant/Accused No.1
Vs.
State by
Inspector of Police,
J-6, Thiruvanmiyur Police Station,
Thiruvanmiyur,
Chennai 600 041.
(Crime No.135/2000) .. Respondent/Complainant
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Prayer : Appeal filed under section 374 (2) Cr.P.C., against the judgment dated 19.01.2004 passed by the learned Sessions Judge, Mahalir Neethi Mandram Judge (Mahila Court), Chennai, in S.C.No.214 of 2001.
* * *
For Appellant : Mr.N.R.Elango, Senior Counsel
for Mr.N.Srinivasan
For Respondent : Mr.J.C.Durairaj,
Govt. Advocate [Crl. Side]
JUDGMENT
The challenge in this appeal is to the judgment dated 19.01.2004 passed by the learned Sessions Judge, Magalir Neethimandram (Mahila Court), Chennai, made in S.C.No.214 of 2001 convicting the appellant, who has been arrayed as A1 for the offence under Section 498-A IPC and under Section 306 IPC and sentencing him to undergo a period of 10 years rigorous imprisonment and to pay a fine of Rs.2,00,000/-, in default, to undergo simple imprisonment for two years for the offence under Section 306 IPC. The learned trial Judge has not imposed any separate sentence for the offence under Section 498-A IPC as it is covered under Section 306 IPC also.
2. There are three accused in this case, viz., A1 to A3 and the learned trial Judge disbelieving the prosecution case, acquitted A2 and A3 and convicted only A1/the appellant herein as stated above.
3. The background facts of the case in a nutshell are hereunder :
(i) A1 is the husband of the victim/Kumudini. P.W.1 is the father of the deceased. P.W.2 is the mother of the deceased. P.W.3 is a family friend of P.W.1.
(ii) A1 and the deceased got married in the year 1993. At the time of marriage, the parents of the deceased have given Rs.50,00,000/- apart from gold and silver articles. Out of their wedlock, they have blessed with two children, viz., two sons. After the marriage both the deceased and A1 lived at New York. A1 was doing business of export of cotton and linen at New York and he was running the company under the name and style as "Hill Crest International". The deceased and A1 were leading a happy married life till the year 1998. Trouble started at the end of 1998 and the relationship between A1 and the deceased has been strained as the deceased suspected that A1 was having intimacy with one Tanya Kapoor. The said person was supplying goods to the company of A1. The deceased suspected that A1 suffered loss in the business. A1 is alleged to have demanded one million dollars apart from demanding four million dollars as a loan from the deceased. P.W.1 has not accepted the said demand. P.W.1 verified through Sniff Capital and Marketing Company about the financial condition of A1's company. The report revealed that A1's company was financially in a bad shape. Therefore, P.W.1 refused to make arrangement for the loan to A1. (iii) During April, 1999, the deceased came to India from U.S.A. with her husband A1. P.W.1 showed the report about the financial position of A1's company to the deceased as well as A1. After a week, A1 left again for U.S.A. leaving the deceased in India.
(iv) In the month of June 1999, the deceased joined A1 in U.S.A.. Thereafter, the deceased informed P.W.1 that she had seen the belongings of Tanya Kapoor in A1's apartment. A1 is said to have humiliated and threatened to kill the deceased. The deceased made an attempt to commit suicide and she was admitted in the hospital at U.S.A. After treatment she was discharged from the hospital. (v) A3 advised the deceased to come to India in the month of September, 1999 saying that separation may strengthen the relationship between the husband and wife. The deceased came to India leaving her two sons at U.S.A. Again, she went back to U.S.A. in the month of November 1999. There was no change in the conduct of A1. During the month of December 1999, the deceased came back to India along with her children and mother-in-law/A3. She was residing with her in-laws at Adyar. Thereafter, A1 instructed the deceased over the phone to leave from his parents' house. A2 abused the deceased by calling her "bitch". The creditors have also started to give trouble. The deceased has decided to leave the matrimonial house. P.W.1 purchased a house at Thiruvanmiyur, Chennai, for the deceased. Thereafter, the deceased was living with her children at Thiruvanmiyur. The deceased also joined in a job at Satyam Computers. (vi) On 12.10.2000, A1 came to India from U.S.A., but not met the deceased. The deceased celebrated the birthday of her elder son on 20.10.2000. A1 to A3 attended the birthday function, but A1 did not speak with the deceased. The deceased told about the unpleasant happenings during the birthday celebrations to her parents over the phone on 20.10.2000. On 21.10.2000, P.W.1 came to Chennai along with his son and stayed along with the deceased. (vii) On 23.10.2000, A3 came to the house of the deceased and informed that A1 is not willing to take back the deceased. A3 further informed that A1 is inclined to marry Tanya Kapoor as she was willing to invest money in the business of A1. The deceased was upset and she was weeping. (viii) On 24.10.2000, the deceased informed P.W.1 that she was going to her office and she had also taken her children along with her. The deceased informed P.W.1 that she would join for the lunch.
(ix) The deceased left for office in her car driven by the Driver, P.W.5. The deceased asked P.W.5 to go to her in-laws house and she left her two children with the Gardener of her in-laws house. She has also given a cover, Ex.P.1 to her eldest son. Ex.P.1 cover contained the letters, Exs.P.2, 3 and 4, which are the letters addressed by the deceased to A1, P.Ws.1 and 2 and A2 and A3 respectively. Thereafter, she has asked P.W.5 to go to her friend P.W.11's house. (x) The deceased went to the house of P.Ws.11 and 7, who are the family friends. There, she handed over the letter, Ex.P.5 to P.W.11 saying that she had consumed poison. Immediately, P.W.7 admitted the deceased at Apollo Hospital.
(xi) The Doctor, P.W.8, examined the deceased and found her unconscious and she was also suffering from fits. Ex.P.23 is the Accident Register copy. Ex.P.24, the report of the Forensic Science Department, discloses that the deceased consumed organo-chlorinated pesticide. She was given treatment in the hospital. (xii) On 24.10.2000, P.W.1 received a phone call at 10.30 a.m. from P.W.11 stating that the deceased was admitted at Apollo Hospital as she has consumed poison. P.W.1 rushed to the hospital. At that time, A1's driver came and delivered a cover to P.W.1. As P.W.1 was rushing to the hospital, he has not opened the cover, Ex.P.1, and later opened the cover, Ex.P.1, and found Exs.P.2, 3, 4 and 5. Ex.P.2 is the letter written by the deceased to A1 ; Ex.P.3 is the letter written by the deceased to P.Ws.1 and 2/her parents ; Ex.P.4 is the letter written by the deceased to A2 and A3 and Ex.P.5 is the note written by the deceased to P.W.11. On reaching the hospital, P.W.1 found the deceased was in a state of coma. (xiii) P.W.1 went to Thiruvanmiyur Police Station and gave the report, Ex.P.6 to P.W.12, Inspector of Police, on 24.10.2000 at 11.30 p.m. P.W.12 registered the case in Crime No.1335 of 2000 for the offence under Section 498-A IPC. Ex.P.26 is the First Information Report. He has sent the First Information Report to the magistrate's Court and to the higher police officials. (xiv) P.W.12 examined P.W.1, 11, 7, 8 and others. He went to the house of the deceased and prepared the Observation Mahazar, Ex.P.27 and Rough Sketch, Ex.P.28. On 29.10.2000 at 9.00 p.m. P.W.12 has received the death intimation from the Apollo Hospital stating that the deceased died. Ex.P.29 is the Death Intimation. P.W.12 gave a requisition/Ex.P.30 to the Magistrate to add the offence under Section 306 IPC. He went to the hospital and held inquest on the dead body of the deceased on 30.10.2000. Ex.P.31 is the inquest report. Thereafter, he has sent the body for post-mortem. (xv) The Doctor, P.W.6, attached to the Government Hospital, Royapettah, conducted post-mortem on 30.10.2000 at 8.15 a.m. The Doctor found the following injuries :
(1) Jugular puncture marks seen over the right side of neck.
(2) Pressure abrasion seen over the left side midback.
(3) No other external or internal injuries are seen anywhere in the body.
..... Stomach : Contained 20 ml of blackish fluid. No specific smell perceived. .... Visceral preserved for Chemical analysis report.
Ex.P.21 is the post-mortem Certificate. The Doctor, P.W.6, is of the opinion that the deceased died of "Pesticide Poisoning" (Endosulphan).
(xvi) P.W.12, in continuation of his investigation, examined P.Ws.1, 2, 5 and others on 30.10.2000. P.W.1 produced Exs.P.10 to P.17 documents relating to the financial position of A1's company, property documents and the appointment order of the deceased. On 14.11.2000, P.W.1 produced four letters, Exs.P.2 to P.5 and Diary, Ex.P.7 and cover, Ex.P.1. P.W.12 received the final opinion of the Doctor. After receipt of the post-mortem certificate, Ex.P.21, Forensic Science Department Report, Ex.P.22, Accident Register copy, Ex.P.23, Chemical Analysis Report, Ex.P.24, and on completion of investigation, has laid the charge sheet against the accused for the offence under Sections 498-A IPC and under Section 306 IPC.
4. The prosecution, in order to bring home the charges levelled against the accused, examined P.Ws.1 to 12 and filed Exs.P.1 to P.31.
5. When the accused were questioned under Section 313 Cr.P.C., they have come forward with the version of total denial and they have stated that they have been falsely implicated in this case. They have also filed written statements. A1 filed nine documents including the documents relating to the treatment given to the deceased for depression and the income tax returns of his company. D.W.1, a Psychiatrist, has been examined by the defence. 6.1. Mr.N.R.Elango, learned Senior Counsel appearing for the appellant, while assailing the impugned judgment of conviction, would vehemently contend that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence and put forward the following contentions:- (i) P.Ws.1 and 2 have implicated the accused for the allegation of cruel treatment and demand of the amount for his business only on the basis of the information said to have been furnished by the deceased and as such, their evidence is unreliable.
(ii) Exs.P.2, 3 and 4, the letters, said to have been written by the deceased to A1, P.Ws.1 and 2 and A1 and A2, are inadmissible as the same are not related to the cause of commission of suicide by the deceased as per Section 32(1) of the Indian Evidence Act.
(iii) Even assuming that the letters, Exs.P.2, 3 and 4 are admissible in evidence, the letters do not contain the incriminating materials against the accused constituting the offence under Section 306 IPC or the offence under Section 498-A IPC and on the other hand, the letters demonstrated the mental condition and depression of the deceased. (iv) A reading of Ex.P.3 addressed by the deceased to her parents, P.Ws.1 and 2, discloses that she has not made any complaint against A1, A2 and A3 and the said letter discloses that the deceased was suffering from depression and frustration and in the letter she has expressed her desire not to live any more. (v) A reading of Ex.P.4, the letter written by the deceased to A2 and A3, also reveals that the deceased has expressed her desire of not to live any more and she has thrown a bald and vague blame on A1 and also expressed her deep love for A1.
(vi) Ex.D.1, the letter, written by the deceased to her parents, P.Ws.1 and 2, reveals that she had conveyed that she was hurt by everyone including the parents and she had blamed everyone of them and the said letter shows the extreme depression suffered by the deceased. (vii) The evidence of P.W.7, a family friend of A1 and the deceased, discloses that the deceased had suffered depression and also underwent treatment at U.S.A. as well as in India. P.W.7 has also admitted in his cross-examination that he had seen the deceased frequently in a depressed-mood and further admitted that she had told him that she was having suicidal tendency. (viii) P.W.11, wife of P.W.7, has also corroborated the version of P.W.7. Though P.W.11 has been treated as hostile, her evidence cannot be rejected in toto. P.W.11 has categorically admitted in her cross-examination that the deceased told her that she was taking treatment for depression. (ix) The prosecution has not produced any incriminating materials to establish that A1 was having intimacy with one Tanya Kapoor.
(x) A1 has produced the income tax documents during his examination under Section 313 Cr.P.C. and the said documents would reveal that he has not suffered any loss in his business.
(xi) The deceased, even as per the admitted case of the prosecution, lived together with A1, mostly, at U.S.A. and even in India she had stayed, mostly, in her in-laws place except staying in an apartment for a short period with her children and as such, it cannot be stated that she had been subjected to cruel treatment by A1 to A3. (xii) The children of the deceased are also all along lived together with their parents, viz., A1 and the deceased, and even now they are in the custody of A1 as per the orders passed by the Hon'ble Supreme Court in S.L.P.(Civil) Nos.5597 & 5598 of 2005 on the basis of the understanding arrived at between A1 and P.Ws.1 and 2. 6.2. The learned Senior Counsel also placed reliance on the following decisions in support of his contentions :
(1) Mahendra Singh V. State of M.P. reported in 1995 SCC (Cri.) 1157 ;
(2) Sohan Raj Sharma V. State of Haryana reported in (2008) 11 SCC 215 ;
(3) Sharad Birdhichand Sarda V. State of Maharashtra reported in AIR 1984 SC 1622; and
(4) Bhairon Singh V. State of M.P. reported in AIR 2009 SC 2603 ;
7. Per contra, Mr.J.C.Durairaj, learned Government Advocate [Crl. Side] would submit that the prosecution has proved its case by adducing clear and cogent evidence through P.Ws.1 and 2. It is contended that the evidence of P.Ws.1 and 2 coupled with the letters written by the deceased, Exs.P.2, 3 and 4 establishes the alleged cruel treatment caused to the deceased by A1. It is further contended that only due to the cruel treatment, the deceased has been driven to take the extreme step of committing suicide. It is pointed out that A1 was neglecting the deceased all along and even on the birthday celebrations of their son, though A1 attended the birthday celebrations, did not speak with the deceased. The learned Government Advocate (Crl. Side) would submit that though the deceased expressed her continuous love to A1, in Ex.P.2 she has clearly expressed the cruelty caused to her by the conduct of A1 deserting her having stated that A1 has ruined her life. It is further pointed out by the learned Government Advocate (Crl. Side) that the deceased blamed A1 for all her suffering even in her letter, Ex.P.4, written to A2 and A3/parents of A1. Therefore, it is contended that the prosecution has proved its case beyond reasonable doubt against A1.
8. I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the evidence adduced by the prosecution and other materials available on record.
9. This is a very unfortunate and pathetic case, wherein, the deceased, a young house wife only aged about 29 years and blessed with two loving children has taken the extreme step of putting an end to her life by committing suicide by consuming poison.
In a case of this nature, the evidence available on record is to be analysed, assessed, sifted and tested like any other evidence without being swayed by emotions.
10. The prosecution heavily placed reliance on the letters, Exs.P.2 to P.4 said to have been written by the deceased, viz., Ex.P.2, the letter written by the deceased to A1 ; Ex.P.3, the letter written by the deceased to her parents, P.Ws.1 and 2 ; and Ex.P.4, the letter written by the deceased to A2 and A3, who are the parents of A1.
11. At the outset, it is to be stated that apart from the above said letters, the prosecution has placed reliance on the evidence of P.Ws.1 and 2, who are the father and mother of the deceased in this case and their version is exclusively based on the information said to have been furnished by the deceased over the phone from U.S.A. as well as in person. Therefore, it is crystal clear that P.Ws.1 and 2 have no personal knowledge about the so-called allegation of cruelty said to have been made by A1 to the deceased.
12. The sheet-anchor of the contention of the learned Senior Counsel for the appellant is that the statements said to have been made by the deceased to P.Ws.1 and 2 and the statement made in Exs.P.2 to P.4 are inadmissible and the provision under Section 32(1) of the Indian Evidence Act is not attracted to the facts of the case.
13. Now let me consider the reliability and admissibility of the letters said to have been written by the deceased under Exs.P.2 to P.4. It is pertinent to note that P.W.1 has stated in his evidence that he has received a cover sent by A1, through his driver, and he has opened it subsequently and found in Ex.P.1, cover, the letters, Exs.P.2 to P.4. P.W.1 confirmed that the said letters are in the handwriting of his daughter/the deceased.
14. At this juncture, it is relevant to refer the provision under Section 32 (1) of the Indian Evidence Act which reads hereunder :
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 : (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.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
15. It is also relevant to refer to the decision of the Hon'ble Apex Court in Sharad Birdhichand Sarda V. State of Maharashtra reported in 1984 SCC (Cri.) 487, in which it was held as hereunder :
"Section 32(1) is not confined to homicide alone but includes suicide also. Hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide."
16. Regarding the phrase "circumstances of the transaction" in Section 32(1), the Hon'ble Apex Court in the same decision held as hereunder :
"The phrase "circumstances of the transaction" in Section 32(1) is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". If the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. But the necessary condition of admissibility under the section is that the circumstances must have some proximate relation to the actual occurrence. However, the test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case."
The Hon'ble Apex Court in the decision cited supra held that Section 32(1) of the Indian Evidence Act is not only confined to homicide but also includes suicide.
17. A reading of the provision under Section 32(1) of the Indian Evidence Act coupled with the principle laid down by the Hon'ble Apex Court in the decision cited supra makes it abundantly clear that the letters written by the deceased, Exs.P.2 to P.4 relating to the cause of the death exhibiting the circumstances leading to the death would fall within the four corners of Section 32(1) of the Indian Evidence Act and therefore admissible.
18. As far as the case on hand is concerned, it is already pointed out, the prosecution case rests on the letters, Exs.P.2 to P.4 written by the deceased to A1, P.Ws.1 and 2, A2 and A3 respectively. A reading of the said letters, Exs.P.2 to P.4 reveals that the deceased was in a confused state of mind. The said letters discloses her love, emotion, anxiety, frustration and depression. It is also pertinent to note that the letters, Exs.P.2 to P.4 have been put in the cover, Ex.P.1, and the same was given by the deceased to her eldest son on the date of the deceased consuming poison, i.e., on 24.10.2000 while she left the two children in the house of A2 and A3 and thereafter, proceeded to her friend's house, P.Ws.7 and 11, and on reaching their house, she handed over the note, Ex.P.5 to P.W.11 stating that she had consumed poison and thereafter, P.W.11 and her husband P.W.7 admitted her into the Apollo Hospital. Considering the fact that the deceased handed over the said letters just before consuming poison and also considering the expression of love, emotion, anxiety, frustration and depression in those letters, this Court has no hesitation to hold that the said letters are considered to be the cause and circumstances which resulted in her death and as such, Section 32(1) is attracted.
19. However, the core question involved in this case is that whether the contents of those letters disclose the ingredients of the offence under Section 306 IPC against the appellant ?
20.0. Now let me analyse and assess the contents of the letters, Exs.P.2 to P.4 as hereunder :
20.1. Ex.P.2 is the letter written by the deceased to A1. A reading of the said letter reveals that the deceased expressed her deep love to A1 in the said letter and it further reveals that A1 was also in deep love with the deceased and there is no expression of putting an end to her life. It is relevant to refer few portions of the said letter as hereunder : "I use to call you from booths and hand up just to hear your voice. I really miss you bujji and all I wanted was just one last chance for us to be a family again, I want joy and near to grow up with both of us. ..... What did I really do, all I was, was a little immature & now you use this against me ? I begged you for another chance but you just kicked me away and all I still have to say is that I love you, with all my heart baby. ..... I know you really love me deep down. But there is nothing I can do." A reading of the above said relevant portions makes it crystal clear that the deceased loved A1 very much and it is also specifically mentioned by the deceased that A1 was also in deep love with the deceased. The learned trial Judge has picked up certain other portions for holding against A1 ignoring and overlooking the above said portions. It is needless to state that the contents of the letter should be read as a whole. 20.2. A reading of the letter, Ex.P.3, written by the deceased to her parents, P.Ws.1 and 2, reveals that she has expressed her frustration and depression. It is relevant to refer the relevant portions of this short letter as hereunder :
"It's just that you do not deserve a daughter like me dad & mom. I cannot bear this pain any longer. ..... I did not mean to hurt anyone, Got has punished me so badly."
20.3. Ex.P.4 is the letter written by the deceased to A2 and A3. The relevant portions of this short letter have to be extracted as hereunder :
"Your son, who I loved so much and still do has put me through hell, hurt me beyond anything. I cannot take it any more, I am so tired. Take care of my kids, I don't wish to live anymore. I want to put an end to this suffering. Tell Bujji, I love him very much, inspite of what he has done, I really love him & I will always love him. Please take care of my precious babies." It is seen that in Ex.P.4, the deceased expressed her anger as well as her deep love to A1.
20.4. By reading the above said letters of the deceased, Exs.P.2 to P.4, by no stretch of imagination it could be stated that the ingredients of the offence under Section 306 IPC are made out against A1. As already pointed out, the said letters only disclose the confused state of mind and depression of the deceased. 20.5. It is pertinent to note that the deceased never resided along with her parents during the last days and she has left the children only in the house of A2 and A3 and also requested them to take care of the kids in her letter, Ex.P.4. At this juncture, it is also relevant to refer to the following portions contained in the letter, Ex.D.1, written by the deceased to her parents, P.Ws.1 and 2 as hereunder : "I have nothing much to say, except that I did not come house like I promised, none of you deserve a person like me in your lives, I have caused nothing but pain and grief in everyone's lives. .... The truth that has to come out is that I do not love any of you, because you, my family, my husband everyone has given me nothing but hell. I do not deserve any of you. Thankyou for everything." It is seen from the above said letter, Ex.D.1 that the deceased even blamed P.Ws.1 and 2, her parents, and stated that everyone has given nothing but hell. The said letter reveals her emotion, depression and frustration.
20.6. It is relevant to note that, according to the prosecution, P.W.5, the Taxi driver, stated that the deceased gave the letters' Cover, Ex.P.1, to her eldest son on the date of consumption of poison by her. But P.W.5 has not stated so during the course of investigation by the police. 20.7. It is also pertinent to note that the letters, Exs.P.2 to P.4 do not contain the date and as such, it cannot be stated that those letters have been written on the date of consumption of poison by the deceased.
20.8. In view of the above said circumstances and reasons, this Court has no hesitation to hold that the letters, Exs.P.2 to P.4 do not contain any incriminating materials to attract the ingredients of the offence under Section 306 IPC.
21. Now coming to the evidence of P.Ws.1 and 2, it is already pointed out, that their evidence is mainly based on the statements made by the deceased to them and they have no direct knowledge. The one wild allegation made against A1 is to the effect that he was having intimacy with one Tanya Kapoor. It is stated by P.W.1 that his daughter/the deceased informed him that she saw the belonging of Tanya Kapoor in A1's apartment. It is seen that A1 was having business transaction with Mr.Kapoor, father of Tanya Kapoor. The prosecution placed reliance on the evidence of entries made by the deceased in her diary, Ex.P.7, apart from the version of P.W.1, as stated above. The said entries in the Diary, Ex.P.7, would also reveal that the deceased was in confused state of mind. In the diary entries, she has asked Kapoor to adopt A1 and stated that she had lot of evidence, but all taken away by A1. Those diary entries have been recorded in Ex.P.7, diary of the year 1997 as per the admission of P.W.1. But all these materials would only disclose suspicion and except the alleged suspicion of the deceased, there is not an iota of materials available on record to show that A1 had illicit intimacy with the said Tanya Kapoor as the prosecution is not able to produce any evidence to substantive such allegation of alleged illicit intimacy of A1 with Tanya Kapoor. P.W.12, the investigating Officer, admitted that he has not enquired about Tanya Kapoor during his investigation. It is needless to state that suspicion, however strong, cannot be substituted for the legal proof.
22. It is pertinent to note that in Ex.P.6, complaint, given by P.W.1 he has made a vague allegation to the effect that A1 came to Chennai from U.S.A. and informed his parents about his intention to marry one Tanya Kapoor and divorcing the deceased and the said matter was informed to his daughter by his parents, i.e., A2 and A3 in person and after hearing the said shocking news, the deceased was totally upset. P.W.1 has not stated this version in his evidence before the Court and as such, the First Information Report, being not a substantive piece of evidence, cannot be placed reliance in respect of the above said allegation. On the other hand, P.W.1 stated that A2 and A3 came to the apartment of the deceased on 23.10.2000 and informed them that A1 is not willing to take back the deceased to U.S.A. and he is inclined to marry Tanya Kapoor because Tanya Kapoor was willing to invest money to the extent of 50% share in the company of A1. But the fact remains P.W.1 has categorically admitted in his cross-examination that he has not stated so during the course of investigation to the police. It is specifically admitted by P.W.1 that he has not stated anything about A2 and A3 during the course of investigation. It is pertinent to note that the above said incident of A2 and A3 coming to the house of the deceased and informing them, as stated above, is said to have taken place a day prior to the date of the deceased consuming poison. But the learned trial Judge has disbelieved the said portion of the prosecution case and acquitted A2 and A3. It is also pertinent to note that P.W.1 has not stated during the course of investigation to P.W.12, the Investigating Officer, that there was misunderstanding between A1 and the deceased in respect of Tanya Kapoor. Therefore, this Court is of the considered view that the prosecution has miserably failed to prove the alleged intimacy of A1 with one Tanya Kapoor.
23. It is further alleged by P.W.1 that A1 demanded one million dollar for investment in his business and four million dollars to be obtained as loan. It is also pertinent to note that P.W.1 has also categorically admitted in his cross-examination that he has not stated so to the police during the course of investigation about A1 demanding one million dollar for investment in his business and four million dollars as loan and he has also not stated about the status report, Ex.P.8, said to have been obtained through the Chennai based company. It is also admitted by P.W.1 that during the second statement recorded by the police, he has not given any explanation for omission to mention certain aspects during his first examination. P.W.1 has categorically admitted that his daughter most of the times stayed along with her in-laws. It is also admitted by P.W.1 that during the hospitalization of the deceased at U.S.A., he has not visited U.S.A. along with his wife as A1 stated that he would look after his wife. All these factors would reveal that A1 was all along cordial with his wife and he has shown his love and affection.
24. Yet another version of P.W.1 is to the effect that the business of A1 was running at a loss and the deceased was worried due to financial problem. P.W.1 went to the extent of receiving report about the financial status of A1's company "Hill Crest International". The said report, Ex.P.8, was obtained through a Chennai based company. This piece of evidence is not at all helpful to advance the case of the prosecution in view of the specific admission of P.W.1 in his cross-examination that he has not stated about the financial difficulty of A1 to the police during the course of investigation.
25. Yet another grievance of the deceased, as per the evidence of P.Ws.1 and 2, is to the effect that though A1 attended the birthday celebrations of her son, he has not spoken to her and as such, she has informed P.W.1 over the phone and cried. It is pertinent to note that P.W.12 categorically admitted in his cross-examination that P.W.2 has not stated so during the course of investigation. Therefore, it is very clear that both P.Ws.1 and 2 are coming forward with exaggerated version and that too for the first time before the Court. I is needless to state that they are not coming forward with clear and consistent version and as such, this Court is of the considered view that it is most unsafe to place reliance on the evidence of P.Ws.1 and 2.
26. Now let me refer the evidence available on record to show that the deceased was suffering from depression.
At the outset, it is to be stated that the deceased has already made an attempt to commit suicide while she was at U.S.A. along with her husband (A1) and she was admitted in the hospital and she was taken care of by A1/her husband and her mother-in-law/A3. P.W.1 admitted the said fact that the deceased made an attempt to commit suicide and she was admitted in the hospital at U.S.A. and he came to know about the same as he was informed by his daughter over the phone. P.W.1 has also admitted in his cross-examination that he has not visited U.S.A. to take care of his daughter along with his wife as A1 said that he would take care of his wife. Therefore, it is crystal clear that the deceased was having suicidal tendency even earlier. It is also seen that the deceased stayed at U.S.A. along with her husband/A1 for about 7 years. P.W.1 admitted in his cross-examination that he, along with his wife, visited his daughter at U.S.A. only once during the period of the said 7 years. It is further admitted by P.W.1 that A3/mother-in-law of the deceased, visited U.S.A. for several times including the time of delivery. Therefore, the defence theory that the deceased was under the depression even on the above said ground cannot be ignored.
27. The evidence of P.Ws.7 and 11 assumes importance as the deceased lastly preferred to visit the house of P.Ws.7 and 11 and she had handed over the note, Ex.P.5 to P.W.11. P.W.7 is the husband of P.W.11. In Ex.P.5 she has stated as hereunder :
"Anitha, I have poisoned myself, please don't try to bring me back to life. Thanx for everything."
It is pertinent to note that she had thanked for everything to P.W.11. The said wordings contained in Ex.P.5 make it abundantly clear that the deceased was having close acquaintance with P.W.11 and she has chosen to inform about the consumption of poison and requested them not to bring back her life. P.W.7 was the classmate of A1 and he knows A1 and his family and the deceased right from the date of their marriage in the year 1993. P.W.7 categorically stated that the deceased moved with his wife as a friend. It is also stated by P.W.7 that whenever A1 and the deceased visited India during their stay at U.S.A. for seven years, they used to visit his family. He also stated that he has attended the birthday celebrations of the son of A1 and the deceased on 20.10.2000. It is the version of P.W.7 that while the deceased came to his house, he was taking bath, on hearing the noise, he came out and found the deceased informed his wife, P.W.11, that she had consumed poison. Thereafter, P.W.7 and his wife, P.W.11, took the deceased immediately to Apollo Hospital. P.W.7 categorically admitted in his cross-examination that the deceased informed him about her depression and taking treatment at U.S.A. It is also admitted by P.W.7 in his cross-examination that the deceased wanted to live in India, but the same was not accepted by A1. It is further admitted by P.W.7 in his cross-examination that on several occasions he found the deceased under depression mood. It is stated by P.W.7 that he knows about the reason for the depression of the deceased as the deceased was lived in the hostel while she was studying for 16 years and she has suffered depression due to loneliness. It is further admitted by P.W.7 that the deceased has taken even treatment in India at Chennai for depression.
28. P.W.11, wife of P.W.7, also categorically stated that the deceased was suffering from depression. Though P.W.11 was treated as hostile, her evidence cannot be rejected in toto. It is well-settled that the evidence of the hostile witness cannot be rejected in toto, and any portion either in favour of the prosecution or in favour of the defence can be taken into consideration. It is admitted by P.W.11 that the deceased used to stay along with her in-laws. It is also admitted by P.W.11 that the deceased found happy, moody and sad and she had taken treatment for depression.
29. The defence also examined D.W.1, a Psychiatrist. D.W.1 stated that he has seen the prescription and case notes given by Dr.Kelly of the U.S.A. and from of the perusal of the case notes, he is of the opinion that the deceased examined by the said Doctor on 01.04.1999. It is further stated by that Doctor, D.W.1, that the Doctor, has recorded the history of the patient as narrated by the deceased stating that the deceased admits to depression and to suicidal ideation. D.W.1 stated about the medicine prescribed by the American Doctor and stated that the said Doctor diagnosed that the case of the deceased as major depression Panic disorder (extreme fear), social phobia (afraid of society), dysthymic disorder (depression with vague complaints) anorexia nervosa 1 (lack of interest in taking food the neurotic condition).
30. The learned trial Judge declined to place reliance on the evidence of D.W.1 on the ground that the medical documents from U.S.A. are not originals and they are only xerox copies. This Court is of the considered view that even excluding the evidence of D.W.1, the fact remains that the deceased has already made an attempt to commit suicide at U.S.A. as admitted by P.W.1. Therefore, it is crystal clear that the deceased was having suicidal tendency and she was given treatment by A1 at U.S.A. even as per the admitted version of P.W.1 and A3, mother-in-law of the deceased, was helping the deceased at the crucial time. The only circumstance relied on by the trial Judge is that the defence has not produced any document to show that the deceased underwent treatment even at Chennai. But it is seen that P.W.7 has categorically stated that the deceased was taking treatment from two Doctors at Chennai. In view of all these factors, the possibility of the deceased committing suicide due to depression cannot be ruled out in this case. 31.0. At this juncture, it is also relevant to refer to the decisions of the Hon'ble Apex Court.
31.1. In the decision of the Hon'ble Apex Court in State of West Bengal v. Orilal Jaiswal and Anr. reported in 1994 SCC (Cri.) 104, held as follows:
"17. ...We may add here 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 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 circumstances 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." 31.2. The Hon'ble Apex Court in Mahendra Singh V. State of M.P. reported in 1995 SCC (Cri.) 1157 held as hereunder :
"2. Learned counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it could be inferred that there was any abetment so as to bring the acts of the appellants within Section 306 IPC, under which the appellants have been punished. The dying declaration, per se, could not involved the appellants in offence punishable under Section 306 IPC, because it provides for abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. 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." 31.3. The Hon'ble Apex Court in Sanju V. State of M.P. reported in [(2002) 5 SCC 371] held as hereunder :
"Both the courts below have erroneously accepted the prosecution story that the suicide by the deceased was the direct result of the quarrel that had taken place on 25-7-1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased "to go and die". For this, courts relied on a statement of S, brother of the deceased, made under Section 161 CrPC when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. In the statement of S, recorded under Section 161 CrPC, it has not been stated that the deceased had told him that the appellant had asked him "to go and die". Even if one accepts the prosecution story that the appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion." 31.4. The Hon'ble Apex Court in Hans Raj V. State of Haryana reported in AIR 2004 SC 2790 held as hereunder :
"The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. .....
Where in a criminal trial against husband for abetment of suicide by his wife, the prosecution was guilty of improving its case from stage to stage inasmuch as the allegations that the accused did not like to keep the deceased-wife with him because she was not good looking, or that he was addicted to liquor or that the deceased had reported these matters to her parents and others, or that the accused intended to re-marry and had told his wife about it, or that the deceased had once come to her father's house in an injured condition, or even the allegations regarding beatings, did not find place in the statements recorded by the police in the course of investigation and these allegations were made at the trial for the first time and all that was alleged in the FIR or even at the stage of investigation was that there were frequent quarrels between the husband and wife, sometimes resulting in physical assault, on account of the husband being addicted to consumption of 'Bhang' and the other allegation that the accused was aggrieved of the fact that his sister was not being properly treated by her husband who was brother of the deceased was also appeared to be untrue, it was held that the presumption under Section 113-A of the Evidence Act could not be invoked to find the accused guilty of the offence under Section 306 IPC." 31.5. The Hon'ble Apex Court in Gangula Mohan Reddy V. State of Andhra Pradesh reported in 2010 (1) SCC 750 has held as follows :
"17. 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 this act must have been intended to push the deceased into such a position that he committed suicide." 31.6. The principle laid down by the Hon'ble Apex Court in the decisions cited supra is squarely applicable to the facts of the instant case as in this case also there is not an iota of material available on record to show that the appellant (A1) intentionally aided by any act or illegal omission or had mens rea in order to attract the ingredients of Section 306 IPC to drive the deceased to take the extreme step of putting an end to her life by committing suicide. On the other hand, there are overwhelming materials available on record to indicate that the deceased was suffering from depression and the possibility of the deceased committing suicide due to such depression cannot be ruled out as pointed out earlier.
32. It is pertinent to note that the occurrence is said to have taken place only after the period of seven years from the date of marriage of A1 and the deceased and as such, the presumption under Section 113-A of the Indian Evidence Act cannot be raised. In view of the infirmities and inconsistencies, pointed out earlier, this Court has no hesitation to hold that the prosecution has miserably failed to prove the case against the appellant for the offence under Section 306 IPC.
33. As far as the offence under Section 498-A IPC is concerned, it is to be stated that the prosecution has not put forward any acceptable evidence to substantiate its case. At the risk of repetition, it is to be reiterated that the deceased attempted to commit suicide while she was at U.S.A. along with A1 and she was admitted in the hospital and taken care of by A1 along with his mother/A3. It is also already pointed out that the deceased herself categorically stated in her letter, Ex.P.2, that A1 was in deep love with her. The present version of P.W.1 that A1 demanded one million dollar for investment in his business and four million dollars as a loan is also not stated in his earlier report, Ex.P.6, and P.W.1 has also categorically admitted in his cross-examination that he has not stated so during his examination by the police. This Court, already pointed out that the prosecution has also miserably failed to prove the alleged intimacy of A1 with one Tanya Kapoor. It is to be stated that neither the contents of Exs.P.2 to P.4 nor the evidence of P.Ws.1 and 2 discloses any concrete instance which can be termed as cruelty as defined in Section 498-A IPC. This area remains gray and vague.
34. At this juncture, it also relevant to refer to the decision of the Hon'ble Apex Court in State of West Bengal V. Orilal Jaiswal reported in [(1994) 1 SCC 73], wherein the Hon'ble Apex Court has held as follows :
"In a criminal trial the degree of proof is stricter than what is required in the civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of Indian Evidence Act."
Therefore, the burden is on the prosecution to prove the alleged cruelty said to have been caused to the deceased by A1 beyond reasonable doubt. The prosecution case cannot stand on mere surmises and conjectures. Therefore, this Court has no hesitation to hold that the prosecution has miserably failed to prove the offence under Section 498-A IPC against A1/the appellant.
35. In view of the aforesaid reasons, this Court has come to the irresistible conclusion that the impugned judgment of conviction is unsustainable in law. Accordingly, the appeal is allowed and the conviction and sentence imposed on the appellant by the learned Sessions Judge, Mahalir Neethi Mandram Judge (Mahila Court), Chennai, in S.C.No.214 of 2001, dated 19.01.2004 are hereby set aside and the appellant is acquitted. Bail bonds executed, if any, shall stand terminated. Fine amount paid, if any, is directed to be refunded to the appellant. 10.08.2010
Index : Yes / No
Internet : Yes / No
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To
1. The Sessions Judge, Mahalir Neethi Mandram,
(Mahila Court), Chennai.
2. The Inspector of Police,
J-6, Thiruvanmiyur Police Station,
Thiruvanmiyur, Chennai 600 041.
3. The Public Prosecutor,
Madras High Court, Chennai 104.
K.N.BASHA, J.
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Crl.A.No.60 of 2004
10.08.2010
