P. Karuppan vs The State

S. Nagamuthu, J—The appellant is the sole accused in S.C. No. 33 of 2013, on the file of the learned Sessions Judge [Fast Track Mahila Court], Karur. He stood charged for the offence punishable under Section 306 I.P.C. By Judgment dated 02.09.2014, he was convicted under Section 306 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for three months. As against the said conviction and sentence, the appellant has come up with this Criminal Appeal. The case of the prosecution, in brief, is as follows:-

i) The deceased in this case was one Mookkayee. The accused is her father-in-law. The deceased had a daughter by name "Selvamani". She was studying in a local school. Some time before the occurrence, the daughter of the deceased had eloped with one Selvaraj. The deceased went in search of her and finally made a complaint. At last, she was rescued. Thereafter, she was not sent to school and was confined at home. Since the examination was fast approaching, the deceased sent her again to school and she also returned safely. On the next day, as usual she went to the school for examination, but, she did not return. The deceased came to know that Mr. Selvaraj had again kidnapped her. Thereafter, when the deceased was at home on 26.03.2012, at 9.30 a.m., the accused came to her house and scolded her for having not brought up her daughter in a proper manner. This resulted in a wordy quarrel.

ii) It is the further case of the prosecution that the accused, during the quarrel, abused her in filthy language and drove her to take the extreme step to commit suicide. After the accused had left her home, the deceased poured kerosene and set fire to herself. Unable to bear with the flames, she rushed out of the house towards a nearby well and jumped into the same and thus, fire was extinguished. Since she did not know to swim, she held a step in the well and was struggling. Then, a person, who was standing there, rescued her by holding her hands. Then, she was taken to the Dindigul Government Hospital,

iii) P.W. 9-Dr. Mohanraj, was the doctor in the said hospital. He noticed extensive burn injuries on her. On intimation from the hospital, P.W. 11-Narayanan, the then Inspector of Police, Palaviduthi Police station rushed to the Dindigul Government Hospital and recorded the statement of the deceased [vide Ex. P. 9] and returned to the Police Station and registered a case in Cr. No. 55 of 2012 under Section 306 r/w 116 of the Indian Penal Code. The first information report is Ex. P. 10.

(iv) On intimation, P.W. 10, Mrs. Manimegalai, the then Judicial Magistrate came to the hospital and recorded a dying declaration [vide Ex. P. 8]. P.W. 12, Dr. Thirunavukkarasu certified that the deceased was conscious through out the recording of the dying declaration. The learned Judicial Magistrate was satisfied with the mental status of the deceased. The deceased told about the occurrence and that she was beaten up by the accused with chappal and directed to commit suicide and because of the same, she self-immolated herself.

v) Thereafter, P.W. 11-Narayanan, then Inspector of Police, Palaviduthi Police station visited the scene of occurrence and prepared an observation mahazar (Ex. P. 12) and a rough sketch (Ex. P. 11). He recovered a kerosene cane under athachi Ex. P. 6. Then, he examined Silumbayee, Thangavel, Rajammal and Subramani individually and recorded their statements. On the same day, he examined the witnesses Muthusamy, Karuppan and Sinnakkal and recorded their statements individually.

vi) On 28.03.2012, P.W. 11 went in search of the accused and at 05.00 a.m., he arrested the accused before the Dindigul Government Hospital and recorded his confession statement. Then, he seized the chappal of the accused [M.O. 2] under Ex. P. 12 (Mahazar). Then, he sent the material objects to the custody of the Court. On 30.03.2012, the deceased succumbed to the injuries. On receiving the death information from the Dindigul Government Hospital, he rushed to the hospital and conducted inquest on the body of the deceased in the presence of the panchayatars. The inquest report is Ex. P. 13. On his request, the body was sent for post mortem. P.W. 9-Dr. Mohanraj conducted post mortem and gave opinion that the death was due to burn injuries. On completing the investigation, he laid the charge sheet against the accused.

Based on the above materials, the Trial Court framed charge under Section 306 of IPC. When the accused was questioned in respect of the charge, he denied the same. In order to prove the charge, the prosecution examined as many as 12 witnesses and exhibited 13 documents besides 2 Material Objects. Of the said 12 witnesses, except P.W. 4 - the brother''s son of the accused and P.W. 8 - the uncle of the deceased, no witness has supported the case of the prosecution. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of incriminating evidences available against him, he denied the same as false. However, he did not choose to examine any witness nor to exhibit any document.

Relying on the two dying declarations, one recorded by the learned Magistrate and other by the police, the trial Court convicted the accused under Section 306 of the Indian Penal Code. That is how, the appellant is now before this Court with this Criminal Appeal.

I have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.

It is contended by the learned counsel for the appellant that the lower Court was in error in acting on the dying declarations, because these two dying declarations are in conflict with each other. He further contended that, assuming that the allegations in the dying declarations are true, that would not reflect the required culpable mental state of the accused. He would further submit that absolutely there is no evidence warranting conviction of the accused under Section 306 of the Indian Penal Code.

The learned Additional Public Prosecutor would stoutly oppose this appeal. According to him, there are no contradictions between the two dying declarations. Assuming that there are contradictions between the dying declarations, the dying declaration recorded by the Magistrate should be given weightage of. According to him, the said dying declaration deserves to be accepted. Thus, there are no reasons to interfere with the judgment of the trial court, he contended.

I have considered the above submissions.

As I have already pointed out, P.Ws. 1, 2, 3, 5 and 6 have turned hostile and they have not supported the case of the prosecution in any manner. So far as P.W. 4 is concerned, he is the nephew of the accused. According to him, on the crucial date of occurrence, at about 10.00 a.m. he found the deceased rushing out of her house in flames and jumping into a nearby well. He rescued her and took her to hospital. The deceased did not make any statement to him. Thus, his evidence is not much useful for the prosecution to prove the guilt of the accused.

P.W. 8 is the uncle of the deceased. On 26.03.2012, when he visited the deceased in the hospital, she told him that since she was depressed by the act of the accused in beating her with chappal, she self immolated. The trial court has not considered this oral dying declaration. If the evidence of this witness is believed, then, it goes without saying that the statement of the deceased made to him falls squarely under Section 32 of the Evidence Act and it is relevant as a dying declaration.

Apart from the above, there is a dying declaration recorded by the learned Judicial Magistrate on 27.03.2012 at about 1.20 p.m. [vide Ex. P. 8]. It is a very long statement wherein the deceased had narrated almost all the relevant facts including the fact that her daughter had eloped with one Selvaraj. So far as the overt act of the accused is concerned, she had stated that he scolded her in abusive language, kicked her and said that she should die. According to this dying declaration, because of the above incident, she poured kerosene and set fire to herself. Ex. P. 9 is yet another dying declaration given by the deceased to the Inspector of Police on 26.03.2012 at about 7.45 p.m. In the said statement, she has stated that the accused scolded her and made an attempt to assault her. Because of the said incident, according to her, she decided to end her life.

As stated above, now, there are three dying declarations. The foremost contention of the learned counsel for the appellant is that these dying declarations are in conflict with each other and there fore, no weightage could be given for these dying declarations. I am in full agreement with the said statement of the learned counsel for the appellant. Of course, a dying declaration, in legal parlance, is considered to be a substantive evidence and if the said dying declaration, even in the absence of corroboration, inspires the confidence of the court, the court can act upon the same to record conviction. When there are multiple dying declarations, which are in conflict with each other, it is difficult to place reliance on any of these dying declarations as such contradictions among various dying declarations create doubt about the veracity of the statements made at different stages by the deceased. Such contradictions reduce the credibility of the statements. In such a situation, if the court is inclined to act upon one dying declaration while rejecting the others, the court should find reasons as to why such course to have regard to one dying declaration alone is adopted. But, in the instant case, this court finds it difficult to act upon any one of these dying declarations in preference to the others as there are no reasons to give such preference. It has been pointed out by the learned counsel that in one dying declaration, the deceased had stated that the accused had beaten her with chappal whereas in the other dying declaration she has stated that the accused simply attempted to assault her and there is no mention about the chappal and beating with chappal. In one dying declaration, it is stated as if the accused told her that she should die, whereas the said allegation is absent in the other dying declarations. These contradictions in my considered opinion are material which create doubt about the veracity of the statements of the deceased. Thus, it is not possible to prefer any one dying declaration to the exclusion of the others.

The second limb of argument advanced by the learned counsel for the appellant is that assuming that any one of these dying declarations could be preferred, from out of that it could, at the most be only concluded that the accused abused her. In my view, that would not satisfy the requirements of Section 107 of IPC. The term "abetment" as defined in Section 107 of IPC requires instigation, or aiding, or conspiracy on the part of the accused. In the instant case, it is not the case of the prosecution that there was either aiding or conspiracy. According to the learned Additional Public Prosecutor, there was only instigation by the accused. The term "instigation" requires culpable mental state [mens rea] to drive the deceased to commit suicide. In this regard I may refer to the judgment of the Hon''ble Supreme Court in Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, AIR 2002 SC 1998 : (2002) CriLJ 2796 : (2002) 1 DMC 773 : (2002) 1 JT 248 Supp : (2002) 4 SCALE 270 : (2002) 5 SCC 371 : (2002) 3 SCR 668 : (2002) 1 UJ 769 : (2002) AIRSCW 2035 : (2002) 3 Supreme 650 wherein in para 13 while dealing with an identical situation, the Hon''ble Supreme Court has held as follows:-

"Even if we accept 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 unadvisable 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 in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion."

In the instant case, it is the admitted case that the daughter of the deceased had eloped with one Selvaraj on an earlier occasion and with great difficulty, the accused rescued and brought her back home. Despite the advice given by the accused, the deceased allowed her to go to school again which paved the way for her to elope again. Certainly the deceased would have been depressed over this incident. Being the eldest male member of the family, quite naturally, the accused would have reprimanded the deceased for having been indifferent towards her daughter without keeping a close watch on her movements. This only had resulted in a quarrel between the accused and the deceased during which the accused is stated to have uttered the words referred to above. In the light of the above facts and circumstances, the words uttered by the accused ''to go and die'' cannot be given a literal meaning to impute mens rea on the part of the accused. It is common knowledge that a single word may mean differently in different places or in different situations. At times, the dictionary meaning of a word may differ from the meaning by which it is understood in a given context. Therefore, it is essential to analyze the context in which the words were spoken to find the meaning conveyed by the speaker and understood by the recipient. In the instant case, going by the back ground of the quarrel, I find that absolutely there is no evidence to even remotely infer that the accused would have had in his mind to drive the deceased to commit suicide. Thus, in this case, the culpable mental state on the part of the accused as required under Section 107 of IPC is totally absent. But, the trial court has given literal meaning to the words spoken during the quarrel to come to the conclusion that there was mens rea on the part of the accused. This, conclusion of the trial court is not at all sustainable. Thus, when there is no evidence to prove mens rea on the part of the accused to drive the deceased to commit suicide, it is not possible to convict the accused under Section 306 of IPC. Thus, the prosecution has miserably failed to prove the charge against the accused and therefore, the appellant/accused is entitled for acquittal. 15. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed by the learned Additional Sessions Judge, Fast Track Mahila Court, Karur, made in S.C. No. 33 of 2013 dated 02.09.2014 are set aside. The appellant is acquitted of the charges. Fine amount, if any paid by the appellant shall be refunded to him. The Superintendent of Central Prison, Trichirappalli shall set the appellant free forth with, if his detention is not required in connection with any other case or proceedings.