Selvaguru vs State

K.N. Basha, J.—The Appellant, who is the sole accused, has come forward with this appeal challenging the conviction and sentence

imposed on him by the learned Sessions Judge, Mahila Court, Chennai, by the judgment dated 13-7-2006 made in S.C. No. 618 of 2005

convicting the Appellant for the offence u/s 498A. IPC and sentencing him to undergo one year rigorous imprisonment and to pay a fine of Rs.

1,000/-, in default, to undergo three months'' rigorous imprisonment and also convicting him u/s 306, IPC and sentencing him to undergo seven

years'' rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo three months rigorous imprisonment. The accused/Appellant

was also charged for the offence u/s 304B, IPC. but the learned trial Judge has acquitted the accused against the said charge.

The background facts of the case are hereunder :

(i) The accused and the deceased, Jayageetha, got married on 21.08.2002.P. Ws.1, 5 and 6 are the brothers of the deceased and P.W.3 is the

mother of the deceased. The father of the deceased is no more. At the time of marriage, the deceased was given 17 sovereign of jewels and other

household articles. After the marriage, the accused and the deceased were living at Saidapet, Chennai, and thereafter, they were residing at

Maliappa Street at Broadway, Chennai. The accused in order to look after his business shifted his residence to Saiva Muthaiyamudali Street,

Chennai. Out of their wedlock, one male child was born. The brother of the accused one Anand was residing permanently along with the accused.

(ii) In the year 2005, for the Pongal festival, the accused went to his parents'' house at Kattumannarkoil along with the deceased. After the Pongal,

the deceased alone came to her parental house at Nattarmangalam. At that time, an injury was found on her hand. On enquiry, she has informed

that her husband demanded a sum of Rs. 2,00,000/- and a vehicle and treated her cruelly by beating her. The deceased was residing for a week in

her parental house. Thereafter, brother of the deceased one Selvaganapathy has taken the deceased to her matrimonial house. The parents of the

accused ill-treated them. While the deceased asked for her child, parents of the accused refused to give the child to her. On the next day, the

deceased returned to her parental house and informed them that her husband abused her with dire consequences saying that he would cut her hand

if she demands the child. Thereafter, she was residing for 11/2 months in her parental house.

(iii) The accused contacted P.W.6, brother of the deceased, over the phone and asked him to bring the victim to his house and when P.W.6 asked

about the money demanded by him, the accused informed that the same can be looked into afterwards. The accused has also spoken to the

deceased over the phone. Thereafter, P.W.6 took the deceased to the house of the accused and left her there. The accused called P.W.1 over the

phone thrice and demanded Rs. 2,00,000/- for his business and a vehicle and P.W. 1 asked him to wait patiently.

(iv) On 09.05.2005 at 5.45 a.m., the accused informed P.W.6 over the phone that the deceased committed suicide. P.W.6 informed his brother

P.W.5. Thereafter, P. Ws.1, 3, 5, 6 and other relatives left for Chennai and went to Muthialpet Police Station, Chennai, at 11.30 a.m. on the same

day and gave the report, Ex.P.1 to P.W.8, Inspector of Police.

(v) P.W.8, Inspector of Police, registered the case in Crime No. 232 of 2005 for the offence u/s 174, Code of Criminal Procedure. Ex.P.13 is the

First Information Report. As the death of the deceased was unnatural and within seven years from the date of marriage, he has sent message to the

Assistant Commissioner of Police, P.W.9.

(vi) P.W.9, Assistant Commissioner of Police, Harbour, took up investigation. He has sent a requisition, Ex.P.8, to the Personal Assistant to the

District Collector, for conducting inquest.

(vii) P.W.7, Tahsildar, attached to the District Collector''s Office, Chennai, received the requisition, Ex.P.8, and held inquest on 09.05.2005 from

4.30 p.m. to 10.00 a.m. on 10.05.2005 at the Government Stanley Hospital. He examined P. Ws.1, 3, 5 and 6. Ex.P.9 is the inquest report.

Ex.P.5 is the statement recorded from P.W.3, mother of the deceased. Ex.P.2 is the joint statement given by the brothers of the deceased. Ex.P.

10 is the statement given by the accused. Thereafter, P.W.7 sent the body for post-mortem.

(viii) The doctor, P.W.4, conducted postmortem on the dead body of the deceased on 10.05.2005 at 11.15 a.m. He found the following injuries :

An oblique incomplete brown ligature mark seen on front sides of the neck 27 x 3-2 cm. It is situated 5 cm. below right mastoid process. 10 cm.

above the suprasternal nitch seen below left mastoid process and on the back of neck it is merged with posterior hair margin.

On dissection of the skin under the ligature mark the tissue found pale and dry. Neck structure are normal. No other external or internal injuries

seen anywhere on the body.

Hyoid bone -- Intact. Heart -- Fluid blood present in all chambers. Coronary patent. Lungs -- Multiple supplement haemorrhages seen over

surface of both lungs. C/s. congested. Stomach -- 20 ml. brown colour fluid present. Mucosa -- congested. Liver, Spleen, Kindeys -- C/s.

congested. Bladder -- empty. Uterus -- Normal in size. C/s. menstruating. Brain -- C/s. congested.

Ex.P.6 is the post-mortem certificate. He is of the opinion that the deceased would appear to have died of asphyxia due to hanging. Ex.P.7 is the

chemical examination report.

(ix) P.W.9, in continuation of his investigation, went to the scene of occurrence and prepared Observation Mahazar, Ex.P.14 and Rough Sketch,

Ex.P.15. He recovered M.O.1 saree under Ex.P.16. He examined P. Ws. 1, 2, 3, 5 and 6 and others. He examined the Doctor, P.W.4. On

10.05.2005 at 3.00 p.m. P.W.9 altered the offence from Section 174 Code of Criminal Procedure. to one u/s 306, IPC. Ex.P.17 is the altered

First Information Report sent to the Magistrate Court and to the higher police officials. P.W.9 arrested the accused at 4.00 p.m. on the same day.

On 28.05.2005, he has received the report, Ex.P.9, from P.W.7. Again he has altered the offence to one u/s 304B, IPC. Ex.P.18 is the altered

First Information Report sent to the Magistrate''s Court. He examined P.W.7, Tahsildar, and the Doctor, P.W.4, who has conducted post-

mortem, and received the post-mortem certificate, Ex.P.6, Forensic Report, Ex.P.7. After completion of investigation, he has filed the charge-

sheet against the accused for the offence u/s 304B, IPC.

The prosecution in order to substantiate its case examined P. Ws.1 to 9, filed Exs.P.1 to P. 18 and marked M.O.1.

When the accused was questioned u/s 313, Code of Criminal Procedure. in respect of the incriminating materials appearing against him through

the evidence adduced by the prosecution, he has come forward with the version of total denial and stated that he has been falsely implicated in this

case. He has not chosen to examine any witness on his side.

Mr. S. Ashok Kumar, learned Senior Counsel appearing for the Appellant, while assailing the impugned judgment of conviction vehemently

contended that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence and put forward the following

contentions :

(i) In the report, Ex.P.1, P.W.1 has made only a vague and bald allegation stating that there were petty quarrels between the deceased and the

accused and he was claimed to have informed by the deceased that the accused demanded a vehicle and a sum of Rs. 2,00,000/- for business

purpose and there is absolutely no other allegation of cruelty made against him and there is absolutely no allegation of any direct demand made by

the accused.

(ii) P. Ws.1, 5 and 6, brothers of the deceased, and P.W.3, mother of the deceased, have come forward with the version of demand of Rs.

2,00,000/-, two wheeler and the cruel treatment caused to the deceased only for the first time before the Court and they have not stated either

before the police during the course of investigation or before the Tahsildar, P.W.7 at the time of inquest conducted by him.

(iii) P.W.7, Tahsildar, has categorically admitted in his cross-examination that the panchayatdars unanimously expressed the opinion that there was

no dowry demand and there was no dispute between the accused and the deceased.

(iv) In the earliest document, Ex.P8, requisition sent by P.W.9 to Tahsildar for conducting inquest, the allegation of demand of Rs. 2,00,000/- and

the alleged cruel treatment meted out by the deceased have not been mentioned.

(v) P. Ws.1, 5 and 6 categorically stated that the brothers of the accused was staying along with them and as such, they were not happy and,

therefore, the possibility of the deceased committing suicide due to such frustration cannot be ruled out.

(vi) P.W.1 categorically admitted in his cross-examination that the marriage expenses for booking marriage hall and feast have been met by the

parents of the accused and when the victim gave birth of the child, father of the accused has given gold waist cord.

(vii) The evidence adduced by the prosecution through P. Ws.1, 3, 5 and 6 do not constitute the ingredients for the offences either u/s 498A, IPC

or u/s 306, IPC.

Per contra, Mr. J.C. Durairaj, learned Government Advocate (Crl. Side) would contend that the prosecution has proved its case by adducing

clear and consistent evidence through P. Ws.1, 3, 5 and 6. It is contended that there is no infirmity or inconsistency in the evidence of P. Ws.1, 3,

5 and 6 and their evidence is also corroborated by the evidence of the Tahsildar, P.W.7, who has held inquest on the dead body of the deceased.

It is further contended that even at the earliest point of time in the report, Ex.P. 1 it is alleged by P.W.1 that the accused demanded Rs. 2,00,000/-

and two wheeler and treated the deceased cruelly. Therefore, it is contended that no ground is made out by the accused warranting interference of

this Court in the impugned judgment of conviction.

I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire

materials available on record.

At the outset, it is to be stated that the prosecution heavily placed reliance on the evidence of P. Ws.1, 3, 5 and 6, who are closely related to the

deceased.P. Ws.1, 5 and 6 are brothers and P.W.3 is the mother of the deceased. Therefore, it is quite natural that they would have a

psychological hatred against the accused. It is needless to state as such they are the interested witnesses. Therefore, this Court has to consider and

test the credibility of their version with great care and caution.

9.P. Ws.1, 3, 5 and 6 in spite of their close relationship, being the brothers and mother of the victim, on hearing the information furnished to them

by none else than the accused, instead of rushing to the matrimonial house, claimed that they went straightway to the police station. Out of three

male members one or two could have preferred to go to the police station, but it is categorically stated that all of them went to the police station to

give the report.

A perusal of the report, Ex.P.1 given by P.W. 1 reveals that they have made a bald and vague allegation to the effect that they heard about the

alleged ill-treatment and demand of amount and vehicle only through the deceased. There is not a whisper made in Ex.P.1 to the effect that the

accused demanded money or vehicle directly from any one of the witnesses, viz., P. Ws.1, 3, 5 and 6.

With this background, this Court has to further scrutinize the present version of P. Ws.1, 3, 5 and 6.

It is pertinent to note, as rightly pointed out by the learned senior counsel for the Appellants, that the present version of direct demand of the

money and vehicle by the accused has been made only for the first time before the Court and they have not stated so neither before the

Investigating Officer during the course of investigation nor before the Tahsildar, P.W.7. during the course of conducting inquest. All these witnesses

have categorically admitted during the course of their cross-examination that they have not stated so earlier before the Investigating Officer, P.W.9

as well as to the Tahsildar, P.W.7. This Court cannot lost sight of the statement made by P.W.3 that after the marriage, both the deceased and the

accused, were happy for a period of one year. A perusal of the evidence of all the witnesses makes it crystal clear that there is absolutely no

untoward incident took place before the unnatural death of the deceased on the fateful date of occurrence, i.e., on 09.05.2005. It is also

categorically admitted by P.W. 1 that it is only the parents of the accused voluntarily met the marriage expenses of arranging kalyana mandapam

and feast and further he has admitted that after the birth of the child, the father of the accused gifted a gold jewellery to the child. It is also brought

to the notice of this Court that the child is now with the accused.

Yet another disturbing feature in the prosecution case is that P. Ws.1, 3, 5 and 6 have come forward with a version that while the deceased

came to the parental house at the time of Pongal, an injury was found on her hand and on enquiry, she has informed that the accused, by

demanding a sum of Rs. 2,00,000/- and a vehicle, treated her cruelly and beat her. But even this version was given by all the abovesaid witnesses

for the first time before the Court and they have not stated so to the police during investigation or to the Tahsildar, P.W.7, during inquest. It is

pertinent to note that if there is any truth in such version, the normal prudent conduct of the said witnesses, P. Ws.1, 5 and 6, who are none else

than the brothers of the deceased and P.W.3, mother of the deceased, is to question the conduct of the accused immediately as to how he could

beat the deceased and cause an injury on her hand. But the fact remains, as categorically admitted by P.W.1, that he has not enquired the accused

about such cruel conduct either in person or over phone or complained to the parents of the accused. It is further seen that P. Ws.1, 3, 5 and 6

also went to the extent of coming forward with the version for the first time before the Court that they have informed by the deceased that when

she asked for the child, the accused threatened her with dire consequences as they have not stated in the report, Ex.P.1, or to the police during

investigation or to the Tahsildar, P.W.7, during inquest.

Yet another version of P.W.1 to the effect that the accused directly demanded the amount and vehicle over the phone is also not stated in

Ex.P.1, report, or to the Tahsildar, P.W.7, during inquest or to P.W.9, during investigation as per the specific and categorical admission of P.W.1.

In view of all these subsequent developments and improvements of prosecution case, this Court has no hesitation to hold that it is most unsafe

to place reliance on the testimony of P. Ws.1, 3, 5 and 6.

In view of the abovesaid infirmities and inconsistencies, this Court is also further constrained to state that even as per the present version of the

prosecution through P. Ws.1, 3, 5 and 6, the ingredients for either the offence u/s 498A, IPC or for the offence u/s 306, IPC have been made out.

It is relevant to refer to a few decisions rendered by the Hon''ble Apex Court at this juncture.

The Hon''ble Apex Court in Mahendra Singh and Another, Gayatribai Vs. State of M.P., held as hereunder :

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 involve the Appellants in offence punishable u/s 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 u/s 306, IPC merely on the allegation of harassment to

the deceased is not sustainable. The Appellants deserve to be acquitted of the charge.

The Hon''ble Apex Court in Gangula Mohan Reddy Vs. State of Andhra Pradesh, has held as follows :

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 u/s 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.

In State of West Bengal Vs. Orilal Jaiswal and another, , 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 498A, IPC and Section 113A of Indian Evidence Act.

The Hon''ble Apex Court in Hans Raj Vs. State of Haryana, held as hereunder (Para 14) :

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 a 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 u/s 113A of the Evidence Act could not be invoked to find the accused guilty of the

offence u/s 306, IPC.

The Hon''ble Apex Court in Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, 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 u/s 161, Code of Criminal Procedure. 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 u/s 161, Code of Criminal Procedure, 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.

The well-settled principle of law laid down by the Hon''ble Apex Court in the decisions cited supra is squarely applicable to the facts of the

instant case. In the case on hand, as already pointed out, P. Ws. 1, 3, 5 and 6 have come forward with the version of cruelty and demand of

money only for the first time before the Court and their present version also does not disclose the ingredients either for the offence u/s 498A, IPC

or u/s 306, IPC.

The last but not the least crucial aspect in this case which lost sight of the trial Court is that P. Ws.1, 3, 5 and 6 have categorically stated that

the deceased has not liked the brothers of the accused residing in the same house and they have claimed that the deceased informed them that she

was not able to lead a happy life in view of the presence of the brothers of the accused at the house of the accused. Therefore, the possibility of the

deceased committing suicide due to such frustration and depression cannot be ruled out.

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, this appeal is allowed and the impugned judgment of conviction and sentence passed by the learned Sessions Judge, Mahila

Court, Magalir Neethimandram, Chennai, in S.C. No. 618 of 2005, dated 13.07.2006 is hereby set aside. Fine amount paid, if any, is directed to

be refunded to the Appellant. Bail bond executed, if any, shall stand cancelled.