Saroja and Others vs The State

S. Nagamuthu, J.—The appellants are the accused in S.C. No. 123 of 2006, on the file of the learned Assistant Sessions Judge cum Chief Judicial Magistrate, Theni. They stood charged for the offence punishable under Section 306 of the Indian Penal Code. By Judgment dated 16.07.2007, the Trial Court convicted the appellants under Section 306 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 50,000/- each in default to undergo rigorous imprisonment for five months. Challenging the said conviction and sentence, the appellants have come up with this Criminal Appeal. The case of the prosecution, in brief, is as follows:--

The deceased, in this case, was one Mrs. Selvi. She was the brother''s wife of the first accused. The second accused is the husband of the first accused. The deceased - Mrs. Selvi had a cousin, by name, Prakash. But, there was no love-lost between the said Prakash and the appellants and they were in inimical terms. The deceased was residing with her husband and children at Sadayapatti Village. The accused were also residing in the said village. While so, on 27.06.2001, the wife of the said Prakash has given birth to a child in the Government Hospital at Bodi. The deceased went to the hospital to see the child and her mother. After her return to her home, on 28.06.2001, at around 08.00 P.M., these two accused had gone to the house of the deceased and questioned the proprietary of the deceased in going to see the child of Mr. Prakash, who was enimical towards them. Then, they returned. Unable to bear the abuse made by these accused, it is alleged that at around 10.00 P.M., on 28.06.2001, the deceased poured kerosene on her body and set on fire to herself. She was immediately taken to Theni Government Hospital. On intimation from the hospital authorities, on 29.06.2001, at 12.15 A.M., PW-11, the then Head Constable attached to the PCFT Police Station, went to the hospital and recorded the statement of the deceased, [EX-P7]. On returning to the police station, at 01.15 P.M., he registered a case in Crime No. 139 of 2001 under Section 304 of the Indian Penal Code. EX-P8 is the First Information Report. Then, he proceeded to the place of occurrence, prepared an Observation Mahazer, Rough Sketch showing the place of occurrence, examined PW-1 to PW-7 and recorded their statements.

1.1. While the deceased was in the Government Hospital, at Theni, one Mr. Subbiah, the then Regional Deputy Tahsildar, Theni, had gone to the hospital and recorded the dying declaration from the deceased and the same has been marked as EX-P6. [Mr. Subbiah has not been examined by the Trial Court]. The deceased died on 02.07.2001 at 11.30 PM, due to the injuries. Then, PW-9 altered the case into one under Section 306 of the Indian Penal Code. He conducted inquest on the body of the deceased and forwarded the same for postmortem. PW-7, Dr. Vijayarani, conducted postmortem on the body of the deceased and gave EX-P1, the postmortem certificate, where she has opined that the death was due to burn injuries. Then, the investigation was taken up by PW-10, followed by PW-11. Finally, PW-11 laid final report.

Based on the above materials, the Trial Court framed appropriate charge as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, the prosecution examined as many as 11 witnesses and 10 documents were exhibited. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of incriminating evidences available against them, they denied the same as false. However, they did not choose to examine any witnesses nor to exhibit any documents.

Having considered all the above materials, the Trial Court convicted the appellants, as detailed in the first paragraph of this Judgment and punished them accordingly. That is how, the appellants are now before this Court with this Criminal Appeal.

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

In this case, PW-1 to PW-6 have turned hostile and they have not supported the case of the prosecution. The Lower Court has relied on the dying declaration recorded by one Mr. Subbiah, the Regional Deputy Tahsildar, Theni. At this juncture, it is to be noted that the said Mr. Subbiah has not been examined as a witness. The dying declaration was marked through PW 10, the Investigating Officer. Thus, the said dying declaration has not been proved at all in accordance with law. Neither the doctor, who has certified about the mental condition of the deceased at the time when she gave statement, has been examined. It is not known as to whether she was mentally fit to make such a statement. Therefore, the reliance made by the Lower Court on the said dying declaration, EX-P6, is not correct.

Apart from the above, the Trial Court has relied on EX-P7, the statement made by the deceased, while she was in the hospital, to PW-11. EX-P7 bears the signature of one Dr. Kannammal. She has only endorsed the left thumb impression made by the deceased in EX-P7, in her presence. She has not stated anything about the mental condition of the deceased. Thus, it is not known as to whether the deceased was in a fit mental condition to make dying declaration. It is also to be noted, at this juncture, that the said Dr. Kannammal has not been examined as a witness. Neither the medical records of the deceased have been produced. Therefore, the reliance made by the Lower Court, on this dying declaration, also is not correct.

The only other evidence available against the accused is PW-8, the mother of the deceased. She has stated that when she enquired the deceased, while she was in the hospital, the deceased told her that because of the accused had scolded her for having gone to see the child of her cousin, she committed suicide. Assuming that the evidence of PW-8 could be believed and that the statement made by the deceased to PW-8 could be accepted as true, even then, in my considered opinion, the prosecution should prove mens rea on the part of the accused to drive the deceased to commit suicide. Here, what has been stated by the deceased to PW-8 is only a simple domestic quarrel. It appears that the deceased had no tolerance. Absolutely, there is no evidence that the accused had mens rea to drive the deceased to commit suicide. Thus, based on the evidence of PW-8 and based on the nature of this domestic quarrel, it cannot be safely concluded that the accused had abetted the commission of suicide by the deceased. In my considered opinion, the Lower Court has convicted the accused only by having regard to the extraneous materials. A reading of the Judgment of the Trial Court would go to show that absolutely, there is no discussion relating to the evidences given by the witnesses, which are relevant to this case. In view of all the above, I find that the conviction and sentence recorded by the Trial Court is not sustainable. In the result, the conviction and sentence imposed by the Trial Court, by Judgment dated 16.07.2007, made in S.C. No. 123 of 2006, is set aside and the appellants are acquitted. Fine amount, if any, paid by the appellants shall be returned to them. Bail bond executed by the appellants shall stand terminated.