Madras High Court
Saravanan vs State Rep. By on 4 July, 2022
Crl.A.No.221 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.07.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.221 of 2020
Saravanan .. Appellants
Vs
1. State rep. by
The Inspector of Police
K-1 Sembium Police Station
Chennai.
(Crime No.1932 of 2013) .. Respondent
Prayer: Criminal Appeal filed under Section 374(2) of CRPC, to call for
records and set aside the judgment and sentence passed in S.C.No.204 of
2016 dated 19.03.2020 on the file of the XVII Additional Sessions Judge,
City Civil and Sessions Court, Chennai.
For the Appellant : Mr.N.R.Elango
Senior Counsel
for Mr.S.Sairaman
For the Respondent : Mr.S.Vinoth Kumar
Government Advocate (Crl. Side)
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Crl.A.No.221 of 2020
ORDER
On 18.10.2013, when P.W.12 was on duty at the K-1 Puliyanthope
Police Station, the statement given by P.W.1 when she was admitted into
hospital was brought, which contained allegations to the effect that P.W.1
had borrowed a sum of Rs.5 lakhs from the accused and she was giving ten
per cent interest per month and to give Rs.50,000/- interest per month, she
had to borrow from outside, resulting in total loan outstanding mounting
up to Rs.2 lakhs. Her son tried to get a loan from his company, but could
not get a loan and therefore, all the three of them, that is, P.W.1, her
daughter and son, decided to commit suicide and after taking tablets,
which was given to increase the blood pressure, and cut their blood veins
in their hands with blade and attempted to suicide.
2. However, her daughter telephoned P.W.1's brother Welington,
who rushed to their house with an ambulance and they were admitted to
the Stanley Hospital. On the strength of the said allegation, a case under
Section 309 of the Indian Penal Code was registered in Crime No.1932 of
2013. Subsequently, the P.W.1's son did not responded to the treatment
and died on 20.10.2013. Thereafter, the case was altered into one under
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Section 306 r/w Section 9 of the Tamil Nadu Prohibition of Exorbitant
Interest Act, 2003. P.W.15, completed the investigation and laid the final
report proposing the accused guilty under Section 306 r/w Sections 4 and 9
of the Tamil Nadu Prohibition of Exorbitant Interest Act, 2003 and under
Section 308 of the Indian Penal code. The case was taken on file of the
learned V Metropolitan Magistrate, Egmore under Sections 306 and 308 (2
counts) and Section 4 and 9 of the Tamil Nadu Prohibition of Exorbitant
Interest Act, 2003, in PRC.No.117 of 2015. After the appearance of the
accused and furnishing of the copies as per Section 207 of the Code of
Criminal Procedure, the accused was committed to the Principal Sessions
Court, Chennai, upon which the case was taken in as S.C.No.204 of 2016
and thereafter, was made over to the learned XVII Additional Sessions
Judge, Chennai.
3. Upon perusal of the records of the case and after hearing the
parties, the Trial Court framed charges under Section 306 r/w 4 and 9 of
the Tamil Nadu Prohibition of Exorbitant Interest Act, 2003 and under
Section 308 of the Indian Penal Code. Upon being questioned, the accused
denied the charges and stood trial. Thereafter, to bring home the charges,
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the defacto complainant was examined as P.W.1. The daughter of P.W.1,
who also attempted to commit suicide was examined as P.W.2. The brother
of P.W.1, who rushed to their house and admitted P.W.1, P.W.2 and the
deceased into the hospital, was examined as P.W.3. Another brother of
P.W.1, who depose to the fact that he heard that his sister and her daughter
and son attempted to commit suicide on account of debt problems and
thereafter, stood as witness to the observation mahazar, was examined as
P.W.4. The husband of P.W.1 was examined as P.W.5. The doctors who
treated P.W.1, P.W.2 and the deceased were examined as P.W.6 to P.W.8.
One Livingston, who was also a witness to the observation mahazar was
examined as P.W.9. P.W.10 is also a doctor at Stanley Hospital who
treated the deceased. P.W.11 is the Scientific Officer of Forensic Lab, who
examined the viscera and submitted the report. P.W.12 is the Sub-
Inspector of Police who registered the First Information Report. P.W.13 is
the other Sub-Inspector of Police, who handled the dead body of the
victim. P.W.14 is the Doctor who conducted the postmortem and the
Investigation Officer was examined as P.W.15.
4. On behalf of the prosecution, Exhibit P.1 to Exhibit P.15 were
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marked. During the cross examination, on behalf of the defense side,
Exhibit D.1 to Exhibit D.4 were also marked. Upon being questioned
about the material evidence on record and the incriminating circumstances
under Section 313 of the Code of Criminal Procedure, the accused denied
the same. Thereafter, on behalf of the accused, D.W.1 to D.W.4 were
examined and the defense side was closed. Thereafter, the Trial Court
proceeded to hear learned Additional Public Prosecutor for the State and
learned counsel on behalf of the accused and by its judgment dated
19.03.2020, found the accused guilty for the offence under Section 306 r/w
4 and 9 of the Tamil Nadu Prohibition of Exorbitant Interest Act, 2003 and
imposed the judgment of ten years of rigorous imprisonment and to pay a
fine of Rs.10,000/- and on default of payment of fine, to undergo simple
imprisonment for a period of one year; found the accused guilty also for
the evidences under Section 308 of the Indian Penal code (2 counts) and
sentenced to undergo three years rigorous imprisonment for each count
and to pay fine of Rs.10,000/- for each count and in default to undergo
simple imprisonment of six months. Aggrieved by the same, the present
appeal is laid before this Court.
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5. Heard Mr.N.R.Elango, learned Senior Counsel appearing on
behalf of the appellant and Mr.S.Vinoth Kumar, learned Government
Advocate, appearing on behalf of the prosecution.
6. According to learned Senior Counsel on behalf of the appellant, at
the face of it, the nature of the allegations mentioned in the case of the
prosecution and the evidence on record, the offence under Section 308 is
not at all made out. As far as the offence under Section 306 r/w Section 4
and 9 of the Tamil Nadu Prohibition of Exorbitant Interest Act, 2003 is
concerned, firstly, learned Senior Counsel draws this Court's attention to
the earliest statement given by P.W.1 in which, though she had said that
she had borrowed money from the said Saravanan for ten per cent interest
per month and she was unable to repay the sum, the reading of the
complaint would clearly show that they took the decision to commit
suicide unable to bare the burden of debt and the impugned occurrence as
if the accused went to their house and threatened them was never
mentioned in the said complaint. This apart, even P.W.4, the other brother
also did not mention about this in the chief examination and they all had
deposed in tandem corroborating with the original complaint only. Only
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P.W.1 and P.W.2 improved their version during the investigation and
subsequently while deposing before this Court as if an incident has
happened on the day of occurrence that the accused went to their house
and threatened them in filthy language and also harassed them by stating
that, P.W.1 should send P.W.2 for prostitution and pay her debt and
shattered and unable to bare the said words and harassment, they all
attempted to commit suicide. In support of the said allegation, except the
ipse dixit of P.W.1 and P.W.2, the Investigating Officer himself has
admitted in his cross examination that he has not collected any material to
prove even the avocation of the accused, that he is involved in the lending
and collection of money on exorbitant interest to people.
7. Learned Senior Counsel further submitted that, admittedly, in this
case, there is another transaction which is proved to the hilt by the defense
wherein, P.W.1 and P.W.2 has admitted their signatures in Exhibit D.4,
which is an undertaking letter. It is clear from cross examination of P.W.1
and P.W.2 that actually, P.W.1 had obtained a sum of Rs.5 lakhs from the
appellant to convey some land by way of real-estate deal involving one
Yobu Saravanan. The said Yobu Saravanan is proved to be a fraudster and
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he has several cases of cheating against him and only because P.W.1 got
involved in real-estate transactions with the said person, she was unable to
pay money and to this extent, the reading of the Exhibit D.4, letter of
undertaking, would be clear that the instant one was not because of loan
transaction, but were unable to return the money which the P.W.1 had
mishandled and ventured into in her real-estate dealings and it is only an
afterthought to rope-in the accused. Even the evidence of P.W.5, the
husband of P.W.1 would be clear that the avocation of the accused is saree
sales. P.W.5, husband of P.W.1, categorically admits about the real-estate
ventures of his wife and that she was forced to leave to Bangalore, since
people were coming to her for the default committed by Yobu Saravanan.
These facts were categorically and clearly suppressed by P.W.1 and P.W.2
in the investigation, which is also admitted by them in Court. Therefore,
this would clearly demonstrate that the entire prosecution case is doubtful
and therefore learned Senior Counsel would pray that the appellant should
be given the benefit of doubt and should be acquitted of the case in toto.
8. Per contra, Mr.S.Vinoth Kumar, learned Government Advocate
(Crl. Side) would submit that, firstly, even though the incident regarding
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coming to the house by the accused was not specifically mentioned, even
the name of Saravanan has been subsequently mentioned in Exhibit P.1
complaint and the fact that he had given loan of Rs.5 lakhs for ten per cent
interest per month, which is exorbitant interest, is clearly stated by P.W.1
in Exhibit P.1 itself. The said facts have been categorically spoken while
examination before the Court. There was no any necessity for P.W.1 to
make such false allegation. As a matter of fact, the defense themselves has
marked so many blank cheques, which would prove that the accused is in
the business of lending money to people and collecting exorbitant interest.
As far as the charge under Section 306 is concerned, learned Government
Advocate (Crl. Side) would submit that the question, as to whether the
conduct amounts to instigation has to be tested by taking into
consideration the background of the parties and other sensitivities of the
issue. Admittedly, P.W.2 is a not married girl and the deceased is a not
married boy, both of them were properly working in private concerns and
earning salary. In that context, if the creditor comes to the house and
speaks to them in such a manner, that would amount to extreme
harassment, instigating them to commit suicide. Therefore, in this case the
prosecution has rightly charged the accused for the offence under Section
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306 r/w Section 4 and 9 of the Tamil Nadu Prohibition of Exorbitant
Interest Act, 2003. When P.W.1 and P.W.2 have taken the extreme step,
their statement is believable and their evidence is stellar in quality and
therefore, the Trial Court has convicted the accused. As far as the charge
under 308 is concerned, learned Government Advocate (Crl. Side) upon
reading the nature of the offence would fairly concede that, no charge can
be framed or made out as against the accused.
9. I have considered the rival submissions made on behalf of either
side and perused the material evidences on record.
10. Firstly, in dealing with the conviction of the appellant under
Section 308 of the Indian Penal Code is concerned, it is necessary to
extract Section 308 of the Indian Penal Code;
“Section 308. Attempt to commit culpable homicide-
Whoever does any act with such intention or knowledge and
under such circumstances that, if he by that act caused
death, he would be guilty of culpable homicide not
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amounting to murder, shall be punished with imprisonment
of either description for a term which may extend to three
years, or with fine, or with both; and, if hurt is caused to any
person by such act, shall be punished with imprisonment of
either description for a term which may extend to seven
years, or with fine, or with both.”
11. Thus, it can be seen that this is a specific offence for punishing
any attempt to commit culpable homicide. The entire case does not realise
so, the appellant attempting to commit any culpable homicide. Therefore,
the framing of charge under Section 308 (2 counts) is on the face if it is
incorrect and therefore, the conviction is totally unsustainable and
therefore, the conviction and sentence imposed by the Trial Court in
respect of the said charge is liable to be set aside by this Court and
accordingly, the same stands set aside.
12. Now, coming to the other charge under Section 306 r/w Section
4 and 9 of the Tamil Nadu Prohibition of Exorbitant Interest Act, 2003 is
concerned, firstly, to prove the charge under Section 306, the prosecution
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has to prove the conduct of the accused which amounts to abetment. The
Hon'ble Supreme Court of India in Ramesh Kumar Vs. State of
Chandigarh1, has categorically held in paragraph 20 as to what the
meaning of the word “instigation” is and it is useful to extract the
paragraph No.20 of the said Judgment as follows:-
"20. Instigation is to goad, urge forward, provoke,
incite or encourage to do “an act”. To satisfy the
requirement of instigation though it is not necessary that
actual words must be used to that effect or what constitutes
instigation must necessarily and specifically be suggestive of
the consequence. Yet a reasonable certainty to incite the
consequence must be capable of being spelt out. The present
one is not a case where the accused had by his acts or
omission or by a continued course of conduct created such
circumstances that the deceased was left with no other
option except to commit suicide in which case an instigation
may have been inferred. A word uttered in the fit of anger or
emotion without intending the consequences to actually
1 (2001) 9 SCC 618
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follow cannot be said to be instigation."
13. Therefore, there must be some act of the accused by which the
accused should have especially goaded, encouraged and enticed the victim
to commit suicide and the prosecution also have to prove that he had the
intention to do so. Firstly, in this case, the very occurrence of the accused
coming to the house of the P.W.1 itself is doubtful. It is an important factor
and a sole factor which prompted the P.W.1, P.W.2 and the deceased to
attempt suicide. The same was not at all mentioned in the Exhibit P.1
complaint. This apart, even P.W.1's brother, who was examined as P.W.4,
in his chief examination has categorically deposed that he heard that his
sister, her daughter and son took the extreme step, unable to bare the
burden of debt and he also does not mention about the incident. Therefore,
the argument of the learned Government Advocate (Crl. Side) that, all
details need not be there in the earliest complaint and First Information
Report, cannot be accepted in this case because, in this case, the very case
itself that, unable to bear the torture, P.W.1, P.W.2 and the deceased have
attempted to commit suicide in which case, any reasonable person in the
said normal course would have definitely mentioned about the said
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incident in the complaint. Therefore, not mentioning of the fact raises
serious doubt on the case of the prosecution.
14. This apart, in the course of the examination of the Investigating
Officer, he categorically admits that he could not collect any material or
any document in proof of advance of the loan. He could not collect any
material in proof of the avocation of the accused that he is in the business
of giving loan with exorbitant interest rate to P.W.1 or to any other person.
There is no other evidence on record to first prove that the accused is in the
avocation of money lending with exorbitant interest rate. Secondly, there is
no other document of any nature for giving of loan, etc. The prosecution
was unable to seize any notebook or any slip of any nature whatsoever,
which is normally maintained in the case of this exorbitant interest. This
apart, when P.W.1 and P.W.2 have admitted their signature in Exhibit D.4,
I am unable to accept the condition of the learned Government Advocate
(Crl. Side) that Exhibit D.4 is a concocted one for the purpose of this case,
when P.W.1 and P.W.2 have categorically admitted their signature in the
cross examination, there was no any reexamination on behalf of the
prosecution and there was no iota of doubt expressed about the said
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document which is first expressed by learned counsel arguing before this
Court alone. Therefore when P.W.1 and P.W.2 have admitted their
signature in Exhibit D.4, which clearly shows that P.W.1 had obtained a
sum of Rs.5 lakhs only as an advance amount to convey an extent of land
and therefore, she had to return the same. This version of exorbitant
interest and borrowing is doubtful.
15. At top of it, the husband of P.W.1, who is examined as P.W.5,
himself has stated as follows:
“ vjphp rutzdplk; 3 Vf;fh; epyk; th';fpj;
jUtjhf mf;hpbkd;l; nghl;L 5 yl;rk; Ugha;
vd; kidtp Kd; gzk; th';fpa tptuk; vd;
kfs; Kykhf vdf;F bjhpa[k;/ ,e;j mf;hpbkd;l;
go epyk; vJt[k; vd; kidtp th';fpj;
jutpy;iy vd;why; vdf;F mJ gw;wp vJt[k;
bjhpahJ/ vd; kidtp mnj epyj;ij ntW
egh;fSf;Fk; mf;hpbkd;l; nghl;Ls;s tptuk;
vdf;F bjhpahJ/ Mdhy; vd; kidtp nyz;L
oyp'; bra;J te;j tptuk; vdf;F bjh;a[k;/”
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16. Therefore, when P.W.1 and P.W.2 had accepted their signatures
in Exhibit D.4 and when P.W.5 has accepted about the transaction, when
P.W.1 and P.W.2 had suppressed the same during investigation to the
Investigating Officer and even before the Court, when they were
questioned in the cross examination initially, did not fairly accepted about
the real-estate transaction, I hold that the evidence of P.W.1 and P.W.2 is
not trust worthy and does not inspire the confidence of the Court, so as to
be the solitary evidence to convict the accused, to be taken as proof for
lending loan, lending loan with exorbitant interest, coming to their house
and shouting with filthy language.
17. Therefore, I am of the view that, in this case, there is no other
evidence on record and the evidence of P.W.4 and P.W.5 are only in the
nature of supporting the defense case and the accused has therefore, by
marking the documents and letting in evidence and also through cross
examination, has categorically demonstrated a probable doubt in the case
of the prosecution. Therefore, the accused is entitled to the benefit of
doubt and it would be extremely unsafe to convict the accused based on
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the evidence of P.W.1 and P.W.2 alone.
18. Accordingly, giving the benefit of doubt, the appellant is
acquitted for the offence under Section 306 r/w Section 4 and 9 of the
Tamil Nadu Prohibition of Exorbitant Interest Act, 2003 also. In the result
this Criminal Appeal is allowed. The accused is acquitted of all the
charges. Fine amount, if any paid, is ordered to be refunded to the accused.
Index : yes/no 04.07.2022
Speaking order/Non-speaking order
drm
To
1.The Inspector of Police
K-1 Sembium Police Station
Chennai.
(Crime No.1932 of 2013)
2. The Public Prosecutor, High Court of Madras.
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D.BHARATHA CHAKRAVARTHY. J.,
drm
Crl.A.No.221 of 2020
04.07.2022
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