A.Sekar vs State By Inspector Of Police
2021 Latest Caselaw 14139 Mad

                                                               1

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 15.07.2021

                                                         CORAM

                                   THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

                                                  Crl.A.No.123 of 2016


                     A.Sekar                                                         ...Appellant


                                                      ..Vs..

                     State by Inspector of Police,
                     Kudavasal Police Station,
                     (Crime No.205/2014)
                     Thiruvarur District.                                           ..Respondent



                     PRAYER:       Criminal Appeal filed under Section 374(2) of the Criminal
                     Procedure Code, to set aside the order and judgment dated
                     25.09.2015 passed by the Sessions Judge, Fast Track Court, Magalir
                     Neethimandram, Thiruvarur in S.C.No.133/2014 on his file and
                     acquitting the appellant of the charge under Section 498-A of I.P.C.


                                            For Petitioner         : M/s.N.Alamelu Mangai


                                            For Respondent         : Mr.R.Vinoth Raja
                                                                    Government Advocate (Crl.Side)


                                                       JUDGMENT

The convicted sole accused is the appellant herein.

https://www.mhc.tn.gov.in/judis/

2. Challenging the correctness of the conviction and the

sentence passed by the trial Court under Section 498 (A) I.P.C., this

appeal is filed.

3. While the respondent police filed the charge sheet for

alleged offences under Sections 306 and 498 (A) of I.P.C., after trial,

he was acquitted of the charges under Section 306 I.P.C however he

was convicted under Section 498 (A) I.P.C and sentenced to undergo

Rigorous Imprisonment for two years and pay a fine of Rs.1000/-

4. The respondent/police filed final report alleging that the

accused and deceased are husband and wife. On 16.06.2014 at about

15.00 hours the accused assaulted the deceased by suspecting her

character. So, the deceased told her husband that "it is better to die,

than live with the accused". The accused replied that if the deceased

dies, then only he will have peace and shouted "go on die". Due to the

above instigation by the accused, under frustration, the deceased

poured kerosene on herself, set fire and in result, she died. Therefore,

the accused appears to have committed offences punishable under

Sections 306 and 498-A of I.P.C.

https://www.mhc.tn.gov.in/judis/

5. The learned Judicial Magistrate, Tiruvarur, taken the case

on file in PRC.No.35/2014. Accordingly, he has committed the case to

the Principal Sessions Judge, Tiruvarur. The Principal Sessions Judge,

Tiruvarur, in-turn, made over this case to trial Court for trial of the

case with respect to charges laid against him under Sections 306 of

I.P.C and 498-A I.P.C.

6. The charges were framed against the accused under

Sections 498(A) and 306 I.P.C.

7. To prove the charge laid against the accused under

Section 498(A), 306 I.P.C., on the side of the prosecution, the

witnesses P.W.1 to P.W.11 were examined and Exs.P1 to P12 were

marked. No material objects were marked.

8. During the trial, P.W.1 is the brother of the accused,

turned hostile. P.Ws.2 and 3, are neighbours residing in the place of

the accused, have also turned hostile. The attestor of the observation

mahazar was examined as P.W.5. The learned Judicial Magistrate, who

recorded the dying declaration Ex.P4 was examined as P.W.6. While

P.W.7 Doctor had given Ex.P5 Fitness Certificate, for recording the

dying declaration and P.W.8 Doctor who has conducted the post- https://www.mhc.tn.gov.in/judis/

mortem, issued Ex.P6 Post-mortem certificate and P.W.10 is the

Doctor who had admitted the deceased at the first instance and noted

down the burn injuries. The trial Court, after trial held that charge

under Section 306 I.P.C is not made out, however charge under

Section 498 (A) I.P.C is made out and accordingly, convicted and

sentenced the accused as stated supra.

9. The case of the prosecution is that, the accused and

deceased are husband and wife. On 16.06.2014 at about 15.00 hours,

the accused assaulted the deceased by suspecting her character. So,

the deceased told her husband that "it is better to die, than live with

the accused". The accused replied that, if the deceased dies then only

he will have peace and shouted as "go on die". Due to the above

instigation by the accused, under frustration, the deceased poured

kerosene on herself and set fire and in result, she died.

10. The learned counsel for the appellant/accused

contended that P.W.1 to P.W.3 have turned hostile and they didn't

support the prosecution case. The deceased sustained 60% of burn

injuries and she was not conscious and fit to depose before the

Magistrate. The dying declaration is not supported by any other

witnesses. There is no corroboration to the dying declaration of the

deceased. Further, there is no incriminating statement in the dying https://www.mhc.tn.gov.in/judis/

declaration to make out offences under Section 498 (A) and 306 I.P.C.

The learned counsel particularly stated that there is no evidence to

prove that the accused intended to commit the death of the deceased.

Hence, he prayed for acquittal of the accused for the charges laid

against him.

11. In reply, the learned Government Advocate appearing for

the respondent (Crl.Side) has submitted that the accused assaulted the

deceased by suspecting her character. Due to that, the deceased

committed suicide by setting fire on herself. The deceased made a

dying declaration before the learned Judicial Magistrate. The Doctor

evidence are clear that the deceased was conscious and was in fit state

of mind at the time of recording the dying declaration. The dying

declaration is proved by the prosecution. Although, the other

witnesses P.W.1 to P.W.3 turned hostile, the evidence of P.W.4

supported the prosecution case. Further, the dying declaration of the

deceased alone is sufficient to convict the accused. Hence, the learned

counsel for the Government Advocate (Crl.Side) prayed for convicting

and sentencing the accused for the charges framed against him under

Section 498(A) and 306 I.P.C.

12. As stated supra, P.W.1 brother of the accused turned

hostile. P.W.2 and P.W.3 are also turned hostile. P.W.10 Doctor who https://www.mhc.tn.gov.in/judis/

admitted the deceased at hospital had stated that the deceased herself

poured kerosene and she sustained burn injuries in chest and stomach

(front and back) and sustained 16% of the brain injuries and Accident

Register copy is marked as P10. P.W.6 Judicial Magistrate who

recorded the dying declaration of deceased, deposed regarding

discharge of official duty and observation of the formalities thereon.

13. As per Ex.P6 post-mortem certificate issued by P.W.8

Doctor, the deceased had died due to the burn injuries and hence the

deceased Chitra w/o.A.Sekar, died to the burn injuries and it is a case

of suicide. As all the private prosecution witnesses have turned hostile,

the case is solely rested upon Ex.P4 dying declaration recorded by

P.W.6 Judicial Magistrate.

14. On a perusal of Ex.P4 dying declaration, I do not find the

element of demand of dowry nor an indication to inducement or

abetment the wife to commit suicide. The substance of the dying

declaration is to the effect that there was a quarrel for 10 days

between the deceased and her husband (accused). She alleged that her

husband has suspected her. As on the fateful day, there was a quarrel

between them and hence the husband has assaulted her and said a

word deformity as stated in the sudden movement in fit of anger and

she poured kerosene and set herself a fire.

https://www.mhc.tn.gov.in/judis/

15. The accused/husband has admitted the deceased in the

hospital with burn injuries, as could be seen from Ex.A10 Accident

Register and the same is spoken to P.W.10 Doctor.

16. After perusal of the dying declaration in Ex.P4 coupled

with the oral evidence of P.W.10 Doctor, I find that there is no

abatement to commit suicide. Even if husband uttered 'go on die', it

will not be construed as a abatement or inducement for the wife to

commit suicide. Going by the statement recorded by the Judicial

Magistrate P.W.6 in Ex.P4 dying declaration, it is clear that in a fit of

anger and the quarrel between the husband and wife in connection

with domestic quarrel fight between the child of a neighbour, she

poured kerosene and set fire on herself.

17. It appears that in a fit of anger at the spur of the

moment, the deceased committed suicide. Hence, the learned Session

Judge has rightly acquitted the accused under Section 306(ii) I.P.C.

However the trial Court had chosen to convict him under Section 498

(A) of I.P.C. Based upon the evidence of P.W.1 to P.W.4, there is

nothing on record to show that there was a demand of dowry or any

physical or mental cruelty. The cruelty alleged by the deceased in the https://www.mhc.tn.gov.in/judis/

dying declaration does not amount to cruelty and it is only fit of anger

between them and that due to the petty quarrel between the husband

and wife, she has committed suicide.

18. Further, the wife slapping the child of the neighbour,

cannot be treated as harassment and hence I find that the conviction

and sentence under Section 498 (A) I.P.C is unsustainable in law and

the same is hereby set aside and he is acquitted of charge under

Section 498-A I.P.C.

19. Accordingly, this Criminal Appeal is allowed. The order

of conviction and sentence passed by the trial Court are set aside. The

fine amount if paid by the accused, shall be refunded. The bail bond,

if any, executed by him, shall stand cancelled.

15.07.2021

nvi

Internet:Yes/No

Speaking Order:Yes/No

To

The Sessions Judge, Fast Track Court, Magalir Neethimandram, Thiruvarur.

https://www.mhc.tn.gov.in/judis/

RMT.TEEKAA RAMAN,J.,

nvi

Judgment in Crl.A.No.123 of 2016

https://www.mhc.tn.gov.in/judis/

15.07.2021

https://www.mhc.tn.gov.in/judis/