Madras High Court

Devaraj vs State Rep By on 1 December, 2021

Crl.A.No.93 of 2015

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 01.12.2021

CORAM :

THE HONOURABLE MS. JUSTICE. R.N.MANJULA

Crl.A.No.93 of 2015

Devaraj .. Appellant

Vs.
State rep by
Inspector of Police,
Madathukulam Police Station,
Tirupur.
(Crime No.1020/2011) .. Respondent

PRAYER : Criminal Appeal has been filed under sections 374(2) of
Criminal Procedure Code to set aside the judgment of the learned Magalir
Needhimandram, Tiruppur in S.C.No.18 of 2012 dated 13.05.2014.

For appellant : Mr.Durai Kannan
Legal Aid counsel
For Respondent : Mr.A.Gopinath
Govt. Advocate (Crl.Side)

JUDGMENT

This Criminal Appeal has been preferred challenging the

judgment of the learned Magalir Needhimandram, Tiruppur in S.C.No.18

of 2012 dated 13.05.2014.

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

2. The short facts which led to the case of the prosecution is

as under:-

The deceased-Ranjitha is the daughter of PW.1-Thilagavathi,

who is the defacto complainant herein. PW.1 had initially agreed to give

her daughter in marriage to the 1st accused; since the 1st accused was in

the habit of drinking alcohol and lying on the road, the deceased did not

want to marry him and complained about his attitude to her mother-

PW.1. Since the deceased was not willing to marry the 1 st accused, the

marriage proposal was stopped. Thereafter, PW.1 was seeking some other

alliance for the deceased Ranjitha. The 1st accused came to know about

these arrangements. On 05.10.2011 at about 6.00 a.m., when the

deceased Ranjitha went to buy milk, the 1st accused along with his friend

-2nd accused, abused the deceased in filthy language and threatened her

that if she dared to marry anyone other than him, he would not allow her

to live. The deceased got scared and felt humiliated. Unable to face the

humiliation at the hands of the accused, the deceased took the extreme

step of committing suicide. On 06.10.2011 at about 11.00 a.m., Ranjitha

consumed cow-dung powder and committed suicide; since the accused

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

had abetted the suicide of the deceased by their previous day conduct,

they have been charged for the offence under Section 306 IPC.

3. On the complaint given by PW.1 on 07.10.2011, FIR was

registered in Crime No.1020 of 2011 of Madathukulam Police Station

under Section 306 IPC., by PW.8/Sub Inspector of Police. PW.9-

Investigating Officer took up the case for investigation went to the place

of occurrence and prepared rough sketch and Observation Mahazer. He

also conducted inquest on the body of the deceased and prepared the

inquest report. Thereafter, he sent the body for post-mortem; after post-

mortem was conducted, he examined the doctor and had got the post-

mortem report. After examination of the witnesses and after collecting the

relevant materials, he filed the charge sheet against the accused 1 and 2

for the offence under Section 306 IPC.

4. The case was taken on file by the learned Judicial

Magistrate No.II, Udumalpet in P.R.C.No.7/2012. After complying the

legal mandates, the case was committed to the learned Principal District

Judge, Tiruppur. From there, it was assigned to the file of Mahalir

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

Neethimandram, Tiruppur. After complying the legal mandates, the

Seesions Judge, Mahalir Neethimandram, framed charges against the

accused 1 and 2 for the offence under Section 306 IPC and questioned

them. Since the accused denied the charges, trial was conducted.

5. On the side of the prosecution, 9 witnesses were examined

as PWs.1 to 9 and 9 documents were marked as Exs.P1 to P9. On the

side of the defence, no witnesses were examined and one document was

marked as Ex.D1.

6. After the conclusion of the trial and on considering the

evidence on record, the learned trial Judge found the 1st accused guilty for

the offence under Section 306 IPC, convicted and sentenced him to

undergo 5 years Rigorous Imprisonment and imposed a fine of

Rs.10,000/-; in default to undergo 6 months Simple Imprisonment. The

trial Judge found the 2nd accused not guilty for the offence under Section

306 IPC and acquitted him. Aggrieved over that, the 1 st accused had filed

the present Criminal Appeal.

7. Heard the learned counsel for the appellant and the

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

learned Government Advocate (Crl.Side) for the State.

8. The learned counsel for the appellant submitted that the 1st

accused is in no way connected to the death of the deceased; the

allegations made by PW.1 is totally false; the deceased was all along

willing to marry him, but she was upset because PW.1 made

arrangements to marry her to some other person; the witnesses are all

interested witnesses and the learned trial Judge has not appreciated the

evidence in proper perspective and wrongly convicted the accused under

Section 306 IPC.

9. The learned Government Advocate (Crl.Side) appearing

for the State submitted that the occurrence was witnessed by the

witnesses PW.4 and PW.5 and they have also given evidence as to what

had happened on 05.10.2011; since the deceased got humiliated, she was

in a stressful state of mind and took the extreme decision of killing herself

by consuming cow-dung powder; the deceased/accused was instrumental

and he had induced the deceased to commit suicide; the fact that the

deceased is the daughter of PW.1 and whose marriage proposal with the

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

accused was first accepted by the deceased family and later withdrawn

was not denied; the marriage was dropped due to the rude behaviour of

the 1st accused and his addiction to alcohol; since the deceased revealed

her unwillingness to marry 1st accused, the marriage arrangements was

stopped; thereafter, PW.1 started to arrange some other alliance for the

deceased.

10. The learned counsel for the appellant submitted that the

deceased was all along willing to marry the 1 st accused and only because

her mother/PW.1 started to find some other alliance to her, she got

disturbed and committed suicide; on the side of the defence Ex.D.1

receipt for booking marriage hall dated 30.06.2011 was produced to

show that the marriage hall was also booked for the marriage between the

1st accused and the deceased, but the marriage is said to have been fixed

only in the month of October 2011.

11. Point for Consideration:

“Whether confirming the guilt and conviction of the

accused of the lower Appellate Court is unfair, improper or not legal?”

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

12. The case of PW.1 is that despite the marriage

arrangements were in progress, it was stopped due to the bad habits of

the accused; PW.1 has stated in her evidence about the initial marriage

arrangements for the deceased with the accused and thereafter, stopped it;

she has also stated about the occurrence that had happened on

05.10.2011; when the deceased went to buy milk, she has stated about

the manner in which she was abused and threatened by the accused; the

evidence of PW.1 would also reveal that after returning home, the

deceased seemed disturbed and frequently cried. She has stated that the

deceased was lamenting that she was the reason for all the shame she

brought to PW.1. On the next morning, she consumed cow dung powder

and committed suicide.

13. In the cross examination of PW.1, she did not rebut what

she had stated in her chief examination. PW.2 , PW.3 and PW.4 were

examined as eye witnesses. On 05.10.2011, the deceased had been to

the house of PW.3 Karpagam in order to buy fresh milk. So in all

probabilities, PW.3 Karpagam and her family members PW.2 and PW.4

could have witnessed the occurrence that had happened on 05.10.2011

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

near their house.

14. The learned counsel for the appellant/accused has stated

that the road in front of Ramamoorthy's house is the place, where the

occurrence had taken place. The same was even clarified by PW.9/the

Investigating Officer that the accused had threatened and abused the

deceased on 05.10.2011 on that particular place and the house of

Ramamoorthy is adjacent to the house of Rajesh Kannan. Hence there is

no difficulty in assuming that the occurrence was witnessed by PW.2 to

PW.4 as stated above.

15. The evidence of PW.2 to PW.4 are cogent, consistent and

it convinces the Court to the fact that on the previous day (05.10.2011),

when the deceased came there to buy milk, the 1 st accused abused her by

threatening that she should not marry anyone and that he would even kill

her. PW.3 had called the mother of the deceased and informed her to

come and take back her daughter, who was in a difficult situation. It is

quite natural that any well known or well wisher of the family of the

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

deceased would tend to call the mother of the deceased to safeguard her

in that extraneous situation.

16. Though the materials on record would prove that the 1st

accused had intercepted the deceased on 05.10.2011 and threatened and

abused her in filthy language, that alone cannot be taken as the act of

abetment and inducement given to the deceased to commit suicide. The

act of the accused would have caused shame and humiliation. But in

order to convict the accused for the offence under Section 306 IPC, the

acts of the accused should be of such a serious nature that the deceased

could have no other option except to kill herself. After the occurrence

that happened on 05.10.2011, the deceased came back to her house and

she was consoled by her mother. The deceased was not under any

compulsion that she should choose the one and only option to kill herself.

She was neither compelled by the accused that she should die by

choosing any one of the cruel options for suicide. She could have made a

complaint against the accused for harassing her or sought the help of her

parents to deal with the accused. It seems that the deceased was not able

to withstand the pressures given by the accused and opted to commit

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

suicide.

17. As it has been stated already, some direct or indirect

incitement to commit suicide should be proved in order to convict the

accused for the abetment of suicide. Even when the 1 st accused abused

the deceased and caused threat to her, he did not tell her that she should

commit suicide or die.

18. The learned counsel for the appellant invited the

attention of this Court to the latest judgment of the Supreme Court

rendered in Anand Singh And Others vs State Of U.P. And Others

reported in MANU/SC/0659/2021. In the said judgment reference was

made to the earlier judgment of the Hon'ble Supreme Court rendered in

Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) reported in

MANU/SC/1453/2009 and held as under:

“57. Dealing with the provisions of Section 306 of the IPC and the meaning of abetment within the meaning of Section 107, the Court observed:

"12. In order to bring out an offence

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note."

58. The Court noted that the suicide note expressed a state of anguish of the deceased and "cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide". Reversing the judgment of the High Court, the petition under Section 482 was allowed and the FIR was quashed.

59. In a concurring judgment delivered by one of us (Dhananjaya Y. Chandrachud J) in the decision of the Constitution Bench in Common Cause (supra), the provisions of Section 107 were explained with the following observations:

"458. For abetting an offence, the person abetting must have intentionally aided the commission of the crime. Abetment requires an instigation to commit or intentionally aiding the commission of a crime. It presupposes a course of conduct or action which (in the context of the present discussion) facilitates

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

another to end life. Hence abetment of suicide is an offence expressly punishable under Sections 305 and 306 IPC."

60. More recently in M Arjunan v.

State (represented by its Inspector of Police), a two judge Bench of this Court, speaking through Justice R. Banumathi, elucidated the essential ingredients of the offence under Section 306 of the IPC in the following observations:

"7. The essential ingredients of the offence under Section 306 IPC are : (i) the abetment;

(ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC."

61. Similarly, in another recent judgment of this Court in Ude Singh v. State of Haryana, a two judge Bench of this Court, speaking through Justice Dinesh Maheshwari, expounded on the ingredients of Section 306 of the IPC, and the factors to be considered in determining whether a case falls within the ken of the aforesaid provision, in the following terms:

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

"38. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.

39. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased."

62. Similarly, in Rajesh v. State of Haryana, a two judge Bench of this Court, speaking through Justice L. Nageswara Rao, held as follows:

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

"9. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."

63. In a recent decision of this Court in Gurcharan Singh v. State of Punjab, a three judge Bench of this Court, speaking through Justice Hrishikesh Roy, held thus:

"15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased."

19. In this case, there is no direct incitement made by the 1st

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

accused in order to compel the deceased to commit suicide. All that had

happened prior to the occurrence was that the accused had insulted the

deceased on the previous day in public view. The evidence available on

record would prove that the 1st accused, with his conduct had harassed

the deceased and committed an offence under Section 4 of Tamil Nadu

Women Harassment Act.

Section 2(a) of the Tamil Nadu Women Harassment Act,

defines ‘harassment’ as under:

“2.Definitions:- In this Act, unless the context otherwise requires-

(a) “harassment” means any indecent conduct or act by a man which causes or is likely to cause intimidation, fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force.”

20. The manner in which the 1st accused had threatened and

abused the deceased would have certainly caused fear, shame and

embarrassment. So the accused ought to have been punished for the

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015

offence committed under Section 2(a) of Tamil Nadu Women Harassment

Act instead of abetment of suicide. The learned Sessions Judge, without

applying the position of law properly found the accused guilty for the

offence under Section 306 IPC. And hence, I feel the judgment deserves

to be interfered and modified .

21. In the result, the Criminal Appeal is partly allowed and

the judgment of the learned Sessions Judge, Magalir Needhimandram,

Tiruppur in S.C.No.18 of 2012 dated 13.05.2014 is modified and the 1 st

accused is found guilty for a lesser offence under Section 4 of Tamil Nadu

Women Harassment Act and convicted and sentenced to undergo One

year Simple Imprisonment and imposed with a fine of Rs.10,000/-; in

default to undergo further period of three months of Simple

Imprisonment. The learned trial Judge is directed to issue Non-Bailable

Warrant for securing the accused and send him to prison to undergo the

remaining period of sentence.

01.12.2021 Index : Yes/No Speaking order/Non speaking order rpl

https://www.mhc.tn.gov.in/judis Crl.A.No.93 of 2015