Madras High Court
Silambarasan vs The Inspector Of Police on 13 December, 2021
Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.12.2021
CORAM :
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
Crl.A.No.707 of 2015
and
Crl.M.P.No.6619 of 2019
Silambarasan .. Appellant
Vs.
The Inspector of Police,
Morappur Police Station,
Dharmapuri District. .. Respondent
PRAYER : Criminal Appeal has been filed under sections 374 of
Criminal Procedure Code to set aside the order in S.C.No.290 of 2014
dated 09.10.2015 convicting the accused by the Mahila Court,
Dharmapuri.
For appellant : Mr.K.Murugesan
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 Sessions Judge (Fast Track Court), Mahila Court,
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Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
Dharmapuri, dated 09.10.2015 made in S.C.No.290 of 2014.
2. The appellant is the accused before the trial Court.
According to the case of the prosecution the deceased minor victim aged
15 years was living with her parents and her younger sister. The accused
has developed an affair with the minor girl/the first victim/V1 (for the
sake of convenience the deceased are referred as V1, V2 and V3). The
deceased V2 is the mother of V1. The accused, who is a neighbour of V1
to V3, had developed love affair with V1. On giving false assurance to
marry V1, he ravished V1 and in view of that she got conceived and she
was two months pregnant. After coming to know about that, her mother
V2 along with her relatives went to the house of the accused and asked
about the occurrence. The accused and his parents denied the
involvement of the accused. Having got frustrated, on 03.04.2012 at
about 9.00 p.m., the mother of V1 gave poison (Monocrotophos) to V1
and V3. Out of frustration V2 has consumed the same poison. All the
three died due to consumption of poison. On the complaint given by the
father of V2-Chittu, a case was registered against the accused in Crime
No.135 of 2012 for the offence under Section 174 of Cr.P.C. PW.22-Sub
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Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
Inspector of Police on 04.04.2012 has taken up investigation. He went to
the place of occurrence and prepared a rough sketch and observation
mahazer in the presence of witnesses and recovered empty box of
Monocrotophos and two silver tumblers, which were used to consume
poison. He also conducted inquest on the body of V2 and prepared
inquest report. Thereafter, she sent the body of V2 for post-mortem on the
same day. She has enquired the doctor, who had conducted the post-
mortem.
3. Thereafter, PW.24-Inspector of Police [Thangaraj]
continued the investigation and visited the place of occurrence and
enquired some of the witnesses. He has received death information about
V1 and went to the Government hospital and conducted inquest on the
body of V1 in the presence of Panchayadors and prepared the inquest
report Ex.P22 and sent the body for post-mortem. He also seized the
letter written by V1 to her father, from her house. A case was registered
on the earlier complaint given by PW.1 Chittu itself. On perusing the
materials available on record, he altered the charges from 174 Cr.P.C., to
306 IPC and prepared an alteration report and sent it to the Court.
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Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
4. Further investigation was continued by PW.25-Inspector
of police [Lakshmanakumar], who after getting the death information of
V3, went to the Government hospital and conducted inquest and prepared
the inquest report Ex.P28; then he sent the body of the deceased-V3 for
post-mortem. After completion of post-mortem, he handed over the body
to her relatives and sent viscera for examination through Court. He also
sent the empty container seized from the place of occurrence for chemical
examination. Suicide letter written by V1 was also seized. He got the
chemical report and collected the foetus of the deceased V1 and sent it
for DNA test through Court and got the DNA report Ex.P.35. On
15.04.2012, he arrested the accused and recorded a confession statement.
He also sent the accused for conducting potency test through Court.
Medical examination, post-mortem and scientific expert to conduct
chemical examination and got the relevant reports and completed
investigation. After the case was taken on file and after completing the
legal mandates, the Court framed charges for the offence under Sections
363, 366(a), 376 and 306 (3counts) IPC.
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Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
5. Heard the learned counsel for the appellant and the
learned Government Advocate(Crl.side) for the State.
6. The learned counsel for the appellant submitted that the
evidence of the prosecution does not prove the guilt of the accused under
Section 306 IPC. He further submitted that the DNA test report Ex.P35
would show that the uterus sent for chemical examination did not contain
the foetus and hence DNA test could not be carried out. By taking
support from the above report, the learned counsel for the appellant
claimed that the guilt of the accused under Section 306 IPC is not proved
by the prosecution.
7. The learned Government Advocate (Crl.Side) for the State
submitted that the accused had ravished V1 and thereafter refused to
admit his involvement. Because of shame and frustration caused by the
accused, the mother of V1 has taken the extreme decision of killing
herself and her children; the above series of events was followed by the
offence of rape and that itself would confirm that the occurrence of rape is
proved. He further submitted that because of the act of the appellant, the
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Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
victims were forced to commit suicide and the same has been clearly
discussed by the Courts below by appreciating the evidence in a proper
manner. Hence the appeal has to be dismissed.
8. Points for consideration:
“Whether the sentence and judgment of the trial Judge is
unfair, improper or not legal?”
9. Despite the fact that the accused was charged for the
offence under Section 376 and 306 (3 counts) IPC, the learned trial Judge
has chosen to acquit the accused from the charges 366(A) and 323 IPC.
The accused was only convicted for the offence under Sections 376 and
306 (3 counts) IPC. It is very pathetic that a mother and children have
consumed poison and committed suicide. V2 administered poison to her
daughters V1 and V3 and thereafter she also consumed poison. All the
three victim died one by one and the container containing poison was also
recovered from the place of occurrence. The chemical examination of the
said container and the tumbler used to consume the poison by the victim
had deducted Monocrotophos in the washings of the tumbler, which is a
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Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
poisonous substance. The report of PW.23 on this aspect is marked as
Ex.P19 and it reads as under:-
“Item I: A small stainless steel tumbler with brownish
stains inside and with pungent odour.
Deducted Monocrotophos in the washings of
the tumbler.
Item II: A small stainless steel tumbler with
brownish stains insider and with pungent
odour.
Deducted Monocrotophos in the
washings of the tumbler.
Item III: A small stainless steel tumbler with
brownish stains insider and with pungent
odour.
Deducted Monocrotophos in the
washings of the tumbler.
Item IV: A plastic container (with screw type lid)
with printed letters,“MONOKEM
MONOCHROTOPHOS 36% SL with
dirty brown stains inside and with
pungent odour.
Deducted Monocrotophos in the
washings of the container.”
10. Though the cause of death of the deceased victim was
proved to be consumption of above poison, I am not able to find any
evidence to show whether the accused had directly induced or abetted the
deceased victim to consume poison. In order to convict the accused for
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Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
abetting suicide the following ingredients should be proved. In this
context, it is relevant to refer the decision of the Allahabad High Court
rendered in Anand Singh And Others Vs. State Of U.P. And Others,
which reads as under:
"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:
"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
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and Crl.M.P.No.6619 of 2019
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
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
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and Crl.M.P.No.6619 of 2019
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:
"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
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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."
64. In Vaijnath Kondiba Khandke v. State of
Maharashtra, a two judge Bench of this Court,
speaking through Justice U.U. Lalit, dealt with
an appeal against the rejection of an
application under Section 482 of the CrPC, for
quashing an FIR registered under Sections
306 and 506 read with Section 34 of the IPC. A
person serving in the office of the Deputy
Director of Education Aurangabad had
committed suicide on 8 August 2017. His wife
made a complaint to the police that her
husband was suffering from mental torture as
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and Crl.M.P.No.6619 of 2019
his superiors were getting heavy work done
from her husband. This resulted in him having
to work from 10 AM to 10 PM and even at odd
hours and on holidays. The specific allegation
against the appellant was that he had stopped
the deceased's salary for one month and was
threatening the deceased that his increment
would be stopped. This Court noted that there
was no suicide note, and the only material on
record was in the form of assertions made by
the deceased's wife in her report to the police.
The Court went on to hold that the facts on
record were inadequate and insufficient to
bring home the charge of abetment of suicide
under Section 306 of the IPC. The mere factum
of work being assigned by the appellant to the
deceased, or the stoppage of salary for a
month, was not enough to prove criminal
intent or guilty mind. Consequently,
proceedings against the appellant were
quashed."
......
26. The next judgment cited by the counsel for
the Opposite Party No. 2 is in the case of
Chitresh Kumar Chopda (supra) wherein the
Supreme Court with respect to scope of Section
107 IPC elaborated and discussed the phrase
''instigate' and after referring to the various
judgments and after referring to the suicide
note held that, on the basis of the material on
record, it cannot be said that any inference of
the appellant having instigated were expected.
The Supreme Court recorded as under:
25. It is trite that at the stage of framing of
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and Crl.M.P.No.6619 of 2019
charge, the court is required to evaluate the
material and documents on record with a view
to finding out if the facts emerging therefrom,
taken at their face value, disclose the existence
of all the ingredients constituting the alleged
offence or offences. For this limited purpose,
the court may sift the evidence as it cannot be
expected even at the initial stage to accept as
gospel truth all that the prosecution states. At
this stage, the court has to consider the
material only with a view to find out if there is
ground for "presuming" that the accused has
committed an offence and not for the purpose
of arriving at the conclusion that it is not
likely to lead to a conviction. (See Niranjan
Singh Karam Singh Punjabi v. Jitendra
Bhimraj Bijjaya[(1990) 4 SCC 76 : 1991 SCC
(Cri) 47] .)
27. In the present case, even if submissions of
are taken on their face value to be gospel
truth, there is nothing material or ground for
even for presuming that the applicants could
be held guilty for committing the offence
under Section 306 IPC.”
11. In this case, even though the victims got aggrieved due to
denial of the involvement of the accused in ravishing V1, there is no
evidence on record to show that the accused had directly abetted the
suicide of the mother of V1 [V2] and V2 alone gave poison to her
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and Crl.M.P.No.6619 of 2019
daughters V1 and V3.
12. Regarding the charges under Section 376 IPC, it is
claimed by the learned counsel for the appellant that in view of the
absence of foetus in the uterus sent for chemical examination, DNA test
could not be conducted and hence the accused has benefit of doubt.
13. One important piece of evidence in this case is the
evidence of Dr.A.S.Arun, who examined V1 before her death. He has
been examined as PW.11. His evidence would reveal that on 02.04.2012
at 10.00 a.m., the deceased V1 was brought by her Aunt PW.3 [Kalpana]
by reporting that the V1 did not get her mensuration for three months.
When the doctor examined, he found that V1 was pregnant. The Aunt
[Kalpana], who accompanied with V1 has been examined as PW.3. After
coming to know about the pregnancy of V1, PW.3 tried to handle the
issue softly. She sent V1 to school and told the parents of V1 about the
test results. On hearing that V2 -mother of V1 got very emotional and
upset. After V1 came back from school, she enquired V1 in the presence
of PW.3. At that time, the deceased V1 told that it was the accused who
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and Crl.M.P.No.6619 of 2019
was the reason for her pregnancy. In her evidence PW.3 has spoken about
the events that had happened subsequent to the revelation made by her
and V1. It is stated that the mother of V1 was very much disturbed and
she was crying all along. Since the mother of V1 was not able to handle
the issue legally and practically, she got very much disturbed. She asked
about this to the accused also. Since the accused refused his involvement,
V1 and her mother became helpless. The act of the accused would show
that he had cheated V1 in the pretext of love.
14. Further, the extreme choice chosen by V2 to kill herself
and her daughters subsequent to the denial of the accused would show
that, the accused brought troubles to the family of V1. The evidence of
PW.3 would substantiate the events that had taken place prior to the act
of suicide committed by V2. After PW.3 left her house, she heard a
strange noise from the house of V2 and immediately she rushed to the
house. Since the house was locked, she kicked and opened it and found
that V1 and V2 had consumed poison. This has been witnessed not only
by PW.3 but also by the neighbours who were residing nearly. PW.4 to
PW.6, who were the neighbours of the deceased have also corroborated
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and Crl.M.P.No.6619 of 2019
the evidence of PW.3. All these witnesses were aware of the involvement
of the accused in ravishing V1. Even if the DNA report is not available,
the above evidence would clearly show that the accused had ravished the
victim and thereafter left V1 helpless. The medical examination
conducted by PW.11 on V1 would also show that she was pregnant.
15. The learned trial Judge had adverted this material
evidence available on record and found that the accused is guilty for the
offence under Section 376 IPC. The deceased V1 is a minor whose
consent is immaterial. One crucial material that has been recovered from
the house of V1 is the suicide note. In which V1 has written suicide note,
which was marked as M.O.4. The learned trial Judge has reiterated its
content as below:
“vd;id rpyk;gurd; vd;w xU
igad; fhjypj;J fy;ahzk;
gd;dpfpnwd; vd;W brhy;yp vd;id
fw;gHpj;J vdf;F Jnuhfk; bra;J
tpl;lhd;/ mjdhy vd; FLk;gnk
mspe;J tpl;lJ vd; FLk;gk;
,we;jJf;F mtd; jhd; fhuzk;
mtd; FLk;gk; jhd; fhuzk;/”
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16. The family of the victim is very peaceful and normal as
others. There is no materials on record to show that the family of the
deceased had any other problem to take the extreme decision of killing
themselves. The medical evidence, the suicide note written by V1 and
other evidences available on record would show that the family peace of
V1 was shattered after she became pregnant due to the rape committed
on her by the accused. The hand writing expert examined the hand
writing of the suicide note and other hand writing of the V1 (Ex.P33) and
confirmed that the hand writing and suicide note were written by V1 only.
Since the said note was written by V1 soon before her death, it is her
dying declaration.
17. Further the deceased V1 or her family did not have any
motive to falsely point out the accused that he was the reason for making
V1 pregnant.
18. It is submitted by the learned counsel for the defence that
PW.1 have a previous enmity with the appellant and complaint was a
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and Crl.M.P.No.6619 of 2019
motivated one. This is the case in which three human lives were lost. The
mother of V1 was in extreme frustration when the accused disowned his
acts which caused the pregnancy of V1. She was frustrated to the extent
of taking away her life and the lives of her children. The scientific
evidence and medical evidence and the suicide notes of the deceased are
sufficient circumstantial evidence, which would directly and conclusively
connect the accused to the offence of rape committed by him on V1. The
learned trial Judge appreciated these materials carefully and found the
accused guilty for the offence under Section 376 IPC.
19. Hence, I find no reason to interfere with the findings of
the learned trial Judge with regard to the offence of rape under Section
376 IPC.
20. This is not the case of the prosecution that at the time of
the occurrence of suicide, the deceased was present at the house of the
accused and did any positive act for facilitating the victims to commit
suicide.
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and Crl.M.P.No.6619 of 2019
21. In the result, this Criminal Appeal is partly allowed. The
judgment of the Mahila Court, Dharmapuri, dated 09.10.2015 passed in
S.C.No.29 of 2014 is modified to the effect that the accused was found
guilty for offence under Section 376 IPC alone and stands convicted. The
accused is acquitted from the offence under Section 306(3 counts) IPC.
Consequently, the connected criminal miscellaneous petition is also
dismissed.
13.12.2021
Index : Yes/No
Internet : Yes/No
rpl
To
1.The Mahila Court, Dharmapuri.
2.The Inspector of Police,
Morappur Police Station,
Dharmapuri District.
3.The Public Prosecutor,
High Court, Madras.
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Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
R.N. MANJULA, J.
rpl
Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
https://www.mhc.tn.gov.in/judis
Crl.A.No.707 of 2015
and Crl.M.P.No.6619 of 2019
13.12.2021
https://www.mhc.tn.gov.in/judis
