Karuppasamy vs State

R. Mala, J.—This Criminal Appeal is directed against the judgment dated 27.02.2007 made in S.C. No. 5 of 2006, on the file of the learned Sessions Judge, Mahila Court, Trichy.

The case of prosecution, in brief, is as follows:

(i) The first accused is the husband of the deceased Puvaneshwari. The second accused is the mother of the first accused. The third accused is the husband of the second accused. The fourth accused is the grandfather of the first accused. P.W. 1 Renukadevi is the mother of the deceased Puvaneshwari. P.W. 2 Subramanian is the brother of P.W. 1. The first accused and the deceased loved each other and he eloped with the deceased to Veerapur, where they got married. After a period of one month from marriage, when P.W. 1 was standing in Tharasampatti Bus Stop, she saw the deceased and A-1 and the deceased pleaded pardon. After 3 days, when P.W. 1 went to see her daughter at Valvarmangalam, she conveyed her mother about the demand of dowry by the accused and hence, P.W. 1 has given 24 sovereigns of gold as dowry. The accused further demanded 4 sovereigns and Rs. 1,00,000/- as Sridhana, for which, there was a panchayat meeting conducted. While the matter stood thus, P.W. 1 has received an information to the effect that her daughter died by consuming poison. Having suspected the death of her daughter, P.W. 1 gave a complaint Ex. P.1.

(ii) On receipt of Ex. P.1, P.W. 11 Sekar, Sub-Inspector of Police, registered a case in Crime No. 212 of 2005 for the offence punishable under Section 174 Cr.P.C., on 13.07.2005 and prepared an F.I.R. Ex. P.11 and since the death of the deceased occurred within seven years from the date of marriage and having suspicion over the death of the deceased, he sent the First Information Report Ex. P.11 to the Revenue Divisional Officer-P.W. 10 as well as higher officials for enquiry.

(iii) On receipt of First Information Report Ex. P.11, P.W. 10-Sivarasu, Revenue Divisional Officer went to the Government Hospital at Manapparai and conducted an inquest on the body of the deceased. The inquest report was marked as Ex. P.8. The statement given by Panchayatdars was marked as Ex. P.9. Ex. P.10 is the final report of the Revenue Divisional Officer. Ex. P.2 is the statement given by P.W. 1 before the Revenue Divisional Officer.

(iv) P.W. 10 Sivarasu, Revenue Divisional Officer sent a requisition to P.W. 5 Dr. Sridharan to conduct post-mortem and on such receipt, he conducted post-mortem on 13.07.2005 and sent the internal organs of the deceased to the Forensic Department, which were received by P.W. 6 Navab John, Scientific Officer and he found that Endosulfuran has been found in the internal organs, which is a poisonous one and issued Ex. P.7-Chemical analysis report. On that basis, P.W. 5 Dr. Sridharan issued the post-mortem report Ex. P.6 and opined that the deceased would appear to have been died of poisoning Endosulfuran and its complications 10 to 13 hours prior to autopsy.

(v) P.W. 12 Thakshinamoorthy, Deputy Superintendent of Police, took up the case for investigation and went to the place of occurrence and prepared an observation mahazar Ex. P.4 and rough sketch Ex. P.12 in the presence of witness P.W. 4 Kumar and recorded the statements of the witnesses and he arrested the accused and remanded them to judicial custody. On completing the investigation, he laid the final report against the accused for the offences punishable under Sections 498(A) and 304(B) r/w 34 of Indian Penal Code.

(vi) The learned trial Judge, after following the procedures, framed necessary charges against the accused. Since the accused denied the same in toto and pleaded not guilty, to prove the charges, P.Ws. 1 to 12 were examined and Exs. P.1 to P.12 were marked on behalf of the prosecution. On completion of the examination of the witnesses on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied the same as false. On behalf of the defence, no witness was examined and no evidence was marked.

(vii) On consideration of evidence available on record, the learned Sessions Judge, Mahila Court, Trichy convicted the first accused alone for the offence punishable under Section 306 IPC and sentenced him to undergo 3 years rigorous imprisonment and imposed with a fine of Rs. 2,000/-, in default, to undergo 6 months rigorous imprisonment. However, the trial Court acquitted all the accused from the charges levelled against them for the offences punishable under Sections 498(A), 304(B) r/w 34 IPC.

Challenging the conviction and sentence passed against the appellant/A-1, the present appeal has been filed.

Assailing the judgment of conviction and sentence imposed on the appellant/first accused under Section 306 IPC, the learned counsel for the appellant has mainly focussed his argument that even though charges have been framed against the accused under Sections 498(A) and 304(B) r/w 34 of IPC, all of them were acquitted from the said charges, but whereas, the first accused/appellant herein alone was convicted for the offence punishable under Section 306 IPC. Once he was acquitted under Section 498(A) of IPC, he shall not be convicted for an offence punishable under Section 306 of I.P.C. That factum was not considered by the Trial Court. The burden is upon the prosecution to prove the guilt of the accused beyond all reasonable doubt. Even the appellant/A-1 may keep silent and it is not his duty to give an explanation for the death of his wife.

In support of his contention, he relied upon the following decisions of the Apex Court and prayed for setting aside the conviction and sentence:

(i) Haripada Dey Vs. The State of West Bengal and Another, .

(ii) S.L. Goswami Vs. State of Madhya Pradesh, .

(iii) Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, .

(iv) Harjit Singh Vs. State of Punjab, .

(v) Nachhattar Singh v. State of Punjab reported in 2011(3) SCC (Cri.) 400.

(vi) Thanu Ram Vs. State of M.P., .

Resisting the same, the learned Government Advocate (Criminal side) would submit that the marriage between the appellant/A-1 and his wife was solemnized four months prior to the occurrence and within a period of seven years from her marriage, she died consuming poison. P.W. 1, the mother of the deceased and P.W. 2, the brother of P.W. 1 have deposed about the cruelty suffered by the deceased in the hands of the appellant/A-1 and thereby, the appellant/A-1 abetted the deceased to commit suicide. Hence, the Trial Court has rightly held that the accused is guilt under Section 306 of IPC. She would further submit that in 313 Cr.P.C., questioning, he ought to have given an explanation. To substantiate the same, she relied upon the following decisions:

(i) Pudhu Raja & Anr. vs. State Tr. Inspector of Police in Criminal Appeal No. 1517 of 2008.

(ii) Ananda Mohan Sen & Anr. vs. State of West Bengal in Appeal (Crl.) 743 of 2007.

(iii) Raj Kumar Singh @ Raju @ Batya vs. State of Rajasthan in Criminal Appeal Nos. 931-932 of 2009.

(iv) Thanu Ram Vs. State of M.P., .

6.1. Relying on the above citations, she prayed for dismissal of the appeal.

Considering the rival submissions made on both sides and on a perusal of the typed-set of papers, it is seen that the appellant/A-1 and the deceased Puvaneshwari loved each other and they got married against the will of P.W. 1, the mother of the deceased Puvaneshwari, four months prior to the occurrence. P.W. 2 is none other than the brother of P.W. 1. P.W. 3 is the brother-in-law of P.W. 1. Except those three witnesses, no one has deposed about the cruelty and also demand of dowry. Hence, the Trial Court has acquitted the accused. It is true that the deceased Puveneshwari died within seven years from her marriage. The death of the deceased is unnatural. It is true that the Village Panchayatdars had deposed before P.W. 10 Sivarasu, Revenue Divisional Officer, at the time of inquest, that the death is natural.

At this juncture, it is appropriate to consider the arguments advanced by the learned counsel for the appellant/A-1 along with paragraph No. 26 of the judgment of the Trial Court, wherein it was held that the prosecution has failed to prove the demand of dowry and cruelty at the hands of the accused and unable to bear with the same, the deceased committed suicide. In paragraph No. 28 of the judgment, the Trial Court held that at the time of 313 Cr.P.C., questioning, A-1 has given a written statement, in which, he had stated that during night hours, without knowing the fact the bucket contains Endosulfuran, which is a poisonous one, his wife has taken the water from it, due to which, she died. Hence, the death is accidental one. But whereas, the Panchayatdars had stated that the death is natural. As such, there is a contradiction between the defence of appellant/A-1 and the Panchayatdars'' version. In such circumstances, on the basis of presumption only, the Trial Court has convicted him.

Now, this Court has to decide whether the presumption under Section 113-A of Indian Evidence Act, 1872, has been invoked in the case?.

It is true that the deceased died due to consumption of poison and that has been proved by way of examining P.W. 5 Dr. Sridharan and post-mortem certificate Ex. P.6 and chemical analysis report Ex. P.7. The evidence of P.W. 6 Navab John, Scientific Officer from Forensic Department proved that the internal organs of deceased contain Endosulfuran and so, the death is unnatural.

Now, this Court has to decide whether the death is suicidal or accidental?.

It is pertinent to note that in the case on hand, there is no eye witness and during night hours only, the occurrence has taken place. When she became unconscious and uneasiness, she was taken to hospital, but, unfortunately, on the way, she died and thereafter, it was reported to her mother P.W. 1. On suspicion, P.W. 1 gave a complaint Ex. P.1 and on that basis, a case has been registered and investigation has been done. It is the duty of the appellant/A-1 to prove how the death has been occurred.

At this stage, it is appropriate to incorporate Section 113-A of Indian Evidence Act, 1872 [hereinafter referred to as ''the Act''], which reads thus:

"113-A. Presumption as to abetment of suicide by a married woman.-

When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

As per the above provision, if the deceased was subjected to cruelty, the Court may presume that the suicidal has been abetted by her husband or by such relative of her husband and in such circumstances, Section 113-A of the Act has been invoked. But, in the present case, even though charges have been levelled against the accused under Sections 498(A) IPC and 304(B) r/w 34 IPC, all of them have been acquitted stating that there is no cruelty meted out upon the deceased. There is no evidence to show that either the relatives of her husband or the husband subjected the deceased to cruelty in connection with demand of dowry. So, the presumption under Section 113-A of the Act cannot be invoked in the case on hand.

It is appropriate to consider the decisions relied on by the learned counsel for the appellant.

Relying upon the decision in Haripada Dey Vs. The State of West Bengal and Another, , the learned counsel for the appellant would submit that it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. However, the accused has to prove his defence by preponderance of probabilities. The appellant herein need not open his mouth nor lead any evidence. It is appropriate to incorporate the relevant portion of paragraph No. 3 of the said judgment, which reads thus:

"3...................... It is no doubt true that the prosecution has got to prove its case beyond reasonable doubt and the accused need not open his mouth nor lead any evidence. If the prosecution succeeds in establishing its case, the conviction would follow, but if the prosecution fails to discharge the burden which lies upon it to prove the charge which has been framed against the accused he is entitled to an acquittal. In this case both the Courts below held that the prosecution had proved its case by the evidence of the witnesses who were called including the motor expert, who on applying chemicals discovered on the engine the very number which was the number on the stolen car."

The very same view has been followed in the case of S.L. Goswami Vs. State of Madhya Pradesh, for the same proposition. It is useful to refer to paragraph No. 5 of the judgment, which reads thus:

"5.............................. In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt."

The learned counsel relied upon the decision reported in Harjit Singh Vs. State of Punjab, , stating that once the accused was found not guilty under Section 304(B) IPC, he cannot be convicted under Section 306 IPC. To substantiate the same, he relied upon paragraph Nos. 25 and 26 of the judgment, which read thus:

"25. It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the court unless the materials on record are such which would establish the said charge against the accused.

Before invoking the provisions of Section 306 IPC, it is necessary to establish that: (i) the deceased committed suicide, and (ii) she had been subjected to cruelty within the meaning of Section 498-A IPC."

The Supreme Court in Nachhattar Singh v. State of Punjab reported in 2011(3) SCC (Cri.) 400, has observed that cruelty under Section 498-A means any wilful conduct which is of such nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to her life or person. It is appropriate to incorporate paragraph No. 6, which reads thus:

"6. We have gone through the evidence as also the reasons given by the High Court to arrive at its conclusions. It will be seen that the allegations against the accused were that they had driven the deceased to suicide on account of cruelty which included demands for dowry. The High Court has rejected the story about the demands for dowry but has drawn an inference that there must have been some cruelty which had forced a young woman to suicide despite the fact that she had a young child. We find that in the background of the findings recorded while acquitting the accused of the charge under Section 304-B IPC, no inferences or presumptions can be drawn. Moreover, a perusal of Section 498-A IPC would show that cruelty would mean any wilful conduct which was of such a nature as was likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) to the woman. We find no evidence on this score and it has been so found by the High Court."

In Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, , the Supreme Court held thus:

"30......................... That makes it impossible to hold that the appellant''s plea is false. Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."

Relying on those judgments, the learned counsel for the appellant would submit that merely because the appellant/A-1, in his written statement filed at the time of 313 Cr.P.C., questioning, had stated that the deceased wife consumed water which was mixed with Endosulfuran kept for agricultural work accidentally, it will not be a ground for convicting him under Section 306 IPC. Considering the above citation, it is the duty of the prosecution to prove that the accused is guilt under Section 306 IPC. Admittedly, there is no eye witness in this case and as already stated, all the accused were acquitted from the charges levelled against them under Sections 498(A) and 304(B) r/w 34 IPC.

The learned Government Advocate (Criminal Side) relied on the decision in Thanu Ram Vs. State of M.P., , stating that Section 113A of the Act has been invoked in the case on hand, since the deceased died within seven years from the date of her marriage. It is appropriate to incorporate paragraph No. 19 of the said judgment, which reads thus:

"19. In our view, the element of instigation as understood within the meaning of Section 107 IPC is duly satisfied in this case in view of the provisions of Section 113-A of the Indian Evidence Act, 1872, which provides for a presumption to be arrived at regarding abetment of suicide by a married woman and certain criteria are also laid down therein. The first criterion is that such suicide must have been committed within 7 years from the date of the victims'' marriage. Since Hirabai committed suicide in the 4th year of her marriage, such condition is duly satisfied. The 19 second condition is that the husband or such relative of the husband had subjected the victim to cruelty which led to the commission of suicide by the victim. Section 113-A indicates that in such circumstances, the Court may presume, having regard to all the circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. In the Explanation to Section 113-A it has also been indicated that for the purpose of the said Section, the expression "cruelty" would have the same meaning as in Section 498-A IPC. Accordingly, if the degree of cruelty is such as to warrant a conviction under Section 498-A IPC, the same may be sufficient for a presumption to be drawn under Section 113-A of the Evidence Act in harmony with the provisions of Section 107 IPC."

At this juncture, the learned counsel for the appellant relied on paragraph No. 22 of the above said judgment, which reads thus:

"22. In the instant case, we have the dying declaration of the victim Hirabai, which we are inclined to rely upon, notwithstanding the objections raised by Dr. Pandey regarding its veracity. We see no reason to disbelieve either PW9, J.R. Lahre, Naib Tahsildar and Executive Magistrate, or PW11, Dr. K. Vinay Kumar, who attended to Hirabai in the hospital."

23.1. The above citation is not applicable to the facts of the present case, because, in the said case, dying declaration has been recorded from the victim and cruelty has also been proved, but whereas, in the case on hand, the appellant/A-1 and other co-accused were acquitted from the charges levelled against them under Sections 498(A) and 304(B) r/w 34 IPC.

She also relied upon the decision in Ananda Mohan Sen & Anr. vs. State of West Bengal in Appeal (Crl.) 743 of 2007, wherein, at paragraph No. 38, it was held thus:

"38. A young lady committed suicide in the morning. Ordinarily, in a village, all members of the family would get up early. Death took place on the verandah of her house. Ordinarily suicide would be committed at a secluded place and not in open place. It would not be committed before anybody and certainly not when everybody in the house was present. In a case of this nature, Section 113-A of Indian Evidence Act would be attracted. Appellants did not adduce any evidence. All the inmates of the house were accused. All came within the purview of Section 113-A of the Evidence Act. Onus shifted to them to show that the death was accidental in nature. Those who were near the deceased at the relevant time should have shown as to how the accident took place. It is difficult to believe that an educated woman would take poison accidentally."

The above citation is not applicable to the facts of the present case, because there is no evidence to show that she was subjected to cruelty. The appellant herein/A-1 was acquitted for the offence punishable under Section 498(A) IPC.

In Pudhu Raja & Anr. vs. State Tr. Inspector of Police in Criminal Appeal No. 1517 of 2008, it was held that it is obligatory on the part of the accused to put forth his defence at the time of 313 Cr.P.C., questioning. It is appropriate to incorporate Paragraph No. 10 of the said judgment, which reads thus:

"10. It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances."

Considering the citation along with the case of Haripada Dey Vs. The State of West Bengal and Another, , I am of the view that it is no doubt true that the prosecution has got to prove its case beyond reasonable doubt and the accused need not open his mouth nor lead any evidence. If the prosecution succeeds in establishing its case, the conviction would follow, but if the prosecution fails to discharge the burden which lies upon it to prove the charge which has been framed against the accused, he is entitled to an acquittal. That judgment has been rendered by three Judges. Therefore, the citation relied on by the learned Government Advocate (Criminal side) in Pudhu Raja''s case is not applicable to the case on hand.

In Raj Kumar Singh @ Raju @ Batya vs. State of Rajasthan in Criminal Appeal Nos. 931-932 of 2009, wherein at paragraph No. 36, it was observed thus:

"36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution''s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that opinion, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C.

An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."

However, the above citation is not supporting the case of the prosecution and it is supporting only the case of the appellant/A-1. In the case on hand, the appellant herein has proved that he has probabilised his case stating that the death of the deceased is accidental and as usual the water has been kept in brass utensils, but on the fateful day, his wife has taken the water in the bucket, which was mixed with Endosulfuran for the agricultural purpose. The Trial Court, since a young lady died in unnatural within four months from the date of her marriage, on presumption, convicted the accused under Section 306 IPC, stating that someone has abetted the deceased to commit suicide.

It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond all reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence.

Therefore, I am of the view that the prosecution has not proved the guilt of the appellant/A-1 under Section 306 IPC, even though no specific charge has been framed under the said provision. The charges framed against all the accused including the appellant herein under Sections 498(A) and 304(B) r/w 34 IPC were ended in acquittal. Since there is no evidence to show that the appellant/A-1 abetted the deceased to commit suicide, I am of the view that the Trial Court has erroneously convicted the appellant/A-1 under Section 306 IPC and hence, it is liable to be set aside and accordingly, set aside.

In the result,

� The Criminal Appeal is allowed.

� The conviction and sentence passed by the learned Sessions Judge, Mahila Court, Trichy, dated 27.02.2007 made in S.C. No. 5 of 2006 are, hereby, set aside.

� The appellant is acquitted from the charges levelled against him.

� The fine amount, if any, paid by the appellant shall be refunded to him.

� The bail bond, if any, executed by the appellant shall stand cancelled.