Arusami M/Age 35 Years vs State Rep. By
2022 Latest Caselaw 10677 Mad

                                                                                  Crl.A.No.344 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 21.06.2022

                                                         CORAM :

                       THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                Crl. A. No. 344 of 2019

                    Arusami M/Age 35 years                                   ...Appellant

                                                          Versus

                    State Rep. by
                    Deputy Superintendent of Police,
                    Thevoor Police Station,
                    Salem District.
                    (Crime No.95/2013)                                       ...Respondent

                    Prayer: Criminal Appeal filed under Section 374(2) of Crl.P.C to set aside
                    the Judgement dated 27.40.2019 passed in S.C.No.461 of 2016 on the file of
                    the Learned Sessions Judge, Mahilar Needimandram, Salem.

                                         For Appellant      : Mr.T.Muruganantham

                                         For Respondent     : Mr.S.Vinoth Kumar
                                                              Government Advocate (Crl.Side)


                                                    JUDGMENT

On 04.06.2013, when P.W.8/Thilagavathy/Sub-Inspector of Police,

was on duty in Thevoor Police Station, P.W.1/Kuppuswamy appeared before

her and lodged a complaint to the effect that five years before the said

occurrence, he arranged the marriage of his daughter/Vennila to the https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

Appellant/accused and she was nine months pregnant. One month before

the incident the Appellant/accused was not permitting the deceased/victim to

go over to her parent's house or any relatives' house. While so on that day

i.e., 04.06.2013 at about 1'o clock, he was informed by his relative that his

daughter committed suicide by hanging. Therefore, he lodged the complaint

to take action in respect of the unnatural death of his daughter.

2.Based on the complaint, initially, the First Information Report was

registered as per the provisions under Section 174 of Cr.P.C, in Crime No.95

of 2013. Subsequently, on receipt of Ex.P-8/report from the Revenue

Divisional Officer, the case was altered into one under Section 498 A and

306 of IPC. The investigation was completed by P.W.10/Investigation

Officer and he laid a charge sheet proposing the appellant guilty of the said

offenses. The Learned Judicial Magistrate No.1, Sangagiri, took up the case

in P.R.C. No.9 of 2014 and upon the appearance of the accused, furnished

the copies of documents as per Section 207 of Cr.P.C, and thereafter,

committed the case to the Learned District and Sessions Judge, Salem. The

learned Sessions Judge, thereupon, took the case on file in S.C.No.461 of

2016. Subsequently, it was made over to the Trial Court namely Mahila

Court, Salem. Upon considering the materials on records, the Trial Court https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

framed charges for the offenses under Section 498 A and 306 of IPC. The

Appellant/accused denied the charges and stood for trial.

3.The prosecution examined Kuppuswamy, who is the first informant

and father of the deceased/Vennila as P.W.1; The Village Administrative

Officer, who was the witness to the confession statement as P.W.2; One

Palaniammal, the mother of the victim as P.W.3; One Seerangan, brother of

the victim as P.W.4; One Thulasimani, Sister of the victim as P.W.5; One

Palanisamy, relative of P.W.1 as P.W.6 and One Doctor/Sangeetha, who

conducted the Post-Mortem as P.W.7; One Thilagavathy, the Sub-Inspector

of Police, who registered the First Information Report as P.W.8; One

Rathinasamy, the RDO, who conducted inquiry as P.W.9 and One

Ramasamy the Investigation Officer as P.W.10.

4.On behalf of the prosecution, the complaint lodged by P.W.1 was

marked as Ex.P-1; Seizure mahazar as Ex.P-2; Observation mahazar as

Ex.P-3; Post-mortem was marked as Ex.P-4; the chemical analysis report is

Ex.P-5; Final opinion of the Doctor is Ex.P-6; the First Information Report

is Ex.P-7; the RDO report is Ex.P-8; Rough sketch is Ex.P-9; Form 91 as

Ex.P-10; the Alteration Report is Ex.P-11; and the request letter to keep the https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

body in the Mortuary as Ex.P-12. On behalf of the prosecution, a piece of

Saree used for the hanging was produced as M.O-1 and the remaining piece

of Saree was produced as M.O-2.

5.Upon being questioned about the evidence on record and

incriminating circumstances against the accused, he denied the same.

6.Thereafter, One Mani was examined as D.W.1, on behalf of the

defense. The Trial Court thereafter proceeded to hear the learned Additional

Public Prosecutor, on behalf of the prosecution and the learned Counsel for

the accused and by Judgment dated 27.04.2019 found the appellant/accused

guilty of the offence under Section 498 A and sentenced him to undergo

imprisonment for a period of three years and fine of Rs.1,000/-, in default of

payment of fine, to undergo six months Simple Imprisonment. The Trial

court also found the appellant/accused guilty of the offence under Section

306 of IPC, and sentenced him to undergo 10 years of Rigorous

Imprisonment and a fine of Rs.2,000/- and in default to pay the amount to

undergo a further period of six months Simple Imprisonment. Aggrieved by

the conviction and sentence, the present appeal is laid before this Court.

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Crl.A.No.344 of 2019

7.Heard Mr.T.Muruganantham, learned counsel for the

appellant/accused and Mr.S.Vinoth Kumar, learned Government Advocate

(Criminal side) appearing for the respondent.

8.Learned Counsel appearing for the appellant/accused taking this

Court, firstly, through the First Information Report would submit that in this

case, at the time of lodging the complaint, except to state that the appellant/

accused did not permit the victim/deceased to go to the relative house, no

other allegations was made. The complaint was lodged at an earlier point of

time and did not indicate that the victim was subjected to matrimonial

cruelty. Further, during the course of examination, the relatives of the victim

girl namely her father, mother, sister and brother, have made their version as

if the appellant had murdered the victim. However, in respect of the death of

the victim, the medical evidence clearly states that it was suicide by

hanging. Therefore, the evidence of the prosecution is blemished and it

should not be believed by this Court.

9.It is his further submission that the defense has clearly taken a plea

by examining D.W.1 that on the date of occurrence, there was a quarrel

between the husband and wife, whereby the husband insisted the wife to https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

attend one of his relative's function. But, at the same time, telephonically,

P.W.1/father and P.W.3/mother namely the parents of the victim have

insisted her not to attend the said function. They have also stated that if she

attends the function, she will not be permitted to come back to their house.

Therefore, she was in extreme distress that she was not able to do anything

as per her wish. In this regard, the learned Counsel would further submit

that in the cross-examination of the Investigation Officer, he has admitted

that the same was not properly examined by the Investigation Officer.

10.This apart P.W.3, mother was questioned and she denied having

spoken to the deceased/victim over the telephone for the past one month, and

she does not know what happened between the husband/accused and the

deceased/victim for the past one month. This piece of evidence has to be

read with the answer of P.W.5, another daughter of P.W.3. P.W.5 had

stated in the cross examination to a specific question as to whether the

mother had conversed with the victim on the day of incident, she has

answered that she did not know the nature of conversation. Therefore, it is

clear that the reasons assigned for committing suicide is not attributable to

that of the appellant.

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Crl.A.No.344 of 2019

11.The learned Counsel further submitted that even as per the

evidence of P.W.1, P.W.3, P.W.4, P.W.5. it can be seen that on account of

the appellant being strict with the victim not to go to her relatives house etc.,

she took the extreme step. But there is no evidence on record to show in

what manner he abetted and aided the victim to commit suicide. If, by such

conduct of the accused, the victim had taken such extreme steps of

committing suicide, then the appellant/accused cannot be convicted for the

offense under Section 306 of IPC. He further submitted that during the RDO

enquiry, there was no evidence made available to show that the victim was

subjected to harassment or dowry demand by the parents of the accused.

12.On the top of it, from the cross-examination of P.W.1, it is clear

that P.W.1 had got the jewels of the victim/deceased for the purpose of

raising money and he pledged four sovereigns of the jewels of the

deceased/victim presented for the marriage, for his son's expenses but he

could not redeem the same, in spite of repeated demands made by the

victim. Therefore, only in order to overcome the self-pity, and on account of

the grief over the death of daughter, by way of embellishment they have

made these allegations against the husband/appellant. The

appellant/husband and the victim were living cordially together and there is https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

no other evidence brought in to show the conduct of the appellant/accused,

so as to be found guilty for the offence under Section 498 A of IPC.

Therefore, he would submit that the Trial Court should have acquitted the

appellant on both charges. Further, he submitted that the appellant/accused

is also taking care of his only son aged about five years till this date.

13.Per contra, the learned Government Advocate (Criminal side)

appearing for the respondent would submit that this is the case where the

victim who was nine months pregnant at the time, committed suicide by

hanging herself. The medical evidence on record proves that she committed

suicide. From the evidence of P.W.1, P.W.3, P.W.4 and P.W.5, it would be

clear that there has been continuous harassment by the appellant/accused by

asking her not to go to the relative's house and restraining her from talking

even with the neighbours. On the day of occurrence, the accused, without

considering the fact that the wife was pregnant, picked up quarrel and

therefore, the victim committed the suicide. Therefore, the accused was

found guilty of both the offences under Section 306 & 498A of IPC by the

Trial Court on the basis of the material evidence broughtforth on record.

Therefore he would pray this Court to uphold the conviction and sentence

imposed by the Trial Court.

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Crl.A.No.344 of 2019

14.I have considered the rival submissions and made on behalf of the

either side and perused the materials evidence on record.

15.Before appreciating the evidence on record and considering the

findings of the Trial Court and submissions made on behalf of the appellant

/accused, it is necessary to consider the requirements and the legal position

in respect of the offence under Section 306 of IPC. Firstly, it has to be borne

in my mind that this is the case where the husband is alleged to have

instigated the wife to commit suicide. The alleged suicide was committed

within seven years from the date of marriage. Therefore, it has to

determined whether the presumption under Section 113 (A) of the Indian

Evidence Act applies.

16.The three bench Judgment of the Hon'ble Supreme Court of India,

in Ramesh Kumar Vs. State of Chandigarh1, considered the question of

presumption and the meaning of ''instigation'' and in paragraph No.12 of the

said Judgment, held that firstly, the presumption is not mandatory, as the

employment of expression "may presume" suggests. Secondly, it also

considered the exemption and the other circumstances of the case and held

that the same has to be taken into account for the purpose of raising the https://www.mhc.tn.gov.in/judis 1 (2001) 9 SCC 618

Crl.A.No.344 of 2019

presumption. Finally, it has been held that presumption is a rebuttable one

and the circumstances otherwise available on record may be taken into

account for rebutting the presumption.

17.Further in paragraph No.20 of the said Judgment the meaning of

the word "instigation" was laid down 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 follow cannot be said to be instigation."

18.The Hon'ble Supreme Court of India, in the recent Judgment

relating to the case of allegation against the husband for having abetted the

wife to commit suicide within seven years had in the matter of Gurjith

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Crl.A.No.344 of 2019

Singh Vs. State of Punjab2, has re-stated the entire law on the subject and

also followed the law laid down in Ramesh Kumar (stated supra) and

ultimately held in the paragraph No.35 as follows:-

"35. Applying the aforesaid principles to the present case, we find that though the prosecution is successful in proving the case under Section 498-A IPC, we are of the view that the prosecution has failed to prove that the cruelty was of such a nature which left no choice to the deceased than to commit suicide. The prosecution has not been in a position to place on record any evidence to establish beyond reasonable doubt that any act or omission of the accused instigated the deceased to commit suicide. There is no material on record to show that immediately prior to the deceased committing suicide there was cruelty meted out to the deceased by the accused due to which the deceased had no other option than to commit suicide. We are of the view, that there is no material placed on record to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising presumption. "

Thus, it may be seen that even to raise presumption, the prosecution has to

establish that the accused had intention to incite suicide and the act of the

accused should be in such a nature, so as to have goaded and enticed the

victim to commit suicide. The harassment should have been to such an

extent that the victim had no other option than to commit suicide.

https://www.mhc.tn.gov.in/judis 2 (2020) 14 SCC 264

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19.In the said background and a cumulative reading and assessment

of the evidence available in this case, it is clear that there has been a quarrel

between the victim/deceased and the appellant/husband, in the matter of

visiting her parents and attending functions of the relatives. The

appellant/husband seems to be discarding the wishes of the victim and

misogynistically pressurizing her to follow his order. But, there was no

harassment by demanding dowry and as a matter of fact, even four

sovereigns of gold of the victim, which were given in connection with the

marriage, has been borrowed and pledged by the father of the victim girl, for

the purpose of meeting the expenses of his son and the same was not

redeemed and returned to the victim/deceased, till the date of her death.

20.On the date of commission of suicide, in the morning, there has

been a quarrel between the husband and wife, whereby, the husband had

requested and pressurized the victim to attend a particular function of one of

his relatives. After the quarrel, the victim was sitting near the Temple and

was crying and she had told D.W.1 that her parents were against her visiting

the said relative's function and they have threatened her not to come to their

house, in case she chooses to attend the relative's function.

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Crl.A.No.344 of 2019

21.Though the Learned Government Advocate (Crl.side) would

attempt to discredit of evidence of D.W.1, a complete reading of the

evidence of D.W.1 would make it clear that he had stated that he did not

know about the quarrel directly or the cause of the death and he only

deposed before the Court as to what was told to him by the deceased.

Therefore, this witness inspires the confidence of this Court.

22.In this regard, when the defense had cross-examined

P.W.3/mother, as to whether she has spoken to the victim over the phone on

the morning of the occurrence, she denies speaking to her even for a period

of one month and stated that she did not know what happened between the

husband and wife for the past one month. On the contrary, P.W.5, in his

cross-examination has admitted that P.W.3 used to talk to her sister i.e., the

victim, from her mobile and whether his mother spoke to her sister, on the

date of occurrence, she evaded direct answer and says that she does not

know.

23.This apart a careful perusal of the evidence of P.W.1 and P.W.3,

the parents of the victim, it can be seen that the accused had been harassing

the victim, by asking her not to talk to the neighbours, and not to permit her https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

to visit the parents or the relative's house, as per her choice. It is pertinent to

state that even taking their evidence as such, it does not demonstrate any

intention of the accused/appellant to incite the victim directly or indirectly to

commit suicide. Secondly, on closer scrutiny of the background of the

parties, the alleged act of cruelty, it is clear that this is not a case where the

deceased had no other option than to commit suicide or whether her

self-esteem is so affected that committing suicide seems to be the course of

action on account of cruelty.

24.On the other hand, it seems to be an act of extreme sensitivity and

frustration that she was overtaken by the circumstances of pressure from

both sides and decided to take the extreme step. Therefore, in this case,

firstly, the prosecution failed to establish the intention and secondly, the

instigation by any act of the appellant by goading and thirdly, the defense

side by examining of D.W.1 and by cross-examinination of prosecution

witnesses has established a reasonable doubt in the case projected by the

prosecution, as to whether the extreme step taken by the victim girl is only

on account of quarrel with the husband/appellant or on account of pressure

from the parents side, also. Therefore, considering all the materials on

record, I am of the view that the offence under Section 306 of IPC, is not https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

established beyond doubt with all the ingredients as stated by the Hon'ble

Supreme Court of India. From the Judgments referred above, it is clear that

no materials are not brought on record by the prosecution even to press

home the rebuttable presumption under Section 113-A of the Indian

Evidence Act. The finding of the Trial Court was based on the fact that the

accused was convicted for the offense under Section 498A of IPC, therefore,

the Trial Court relied on the presumption under Section 113-A and convicted

the accused, which finding is unsustainable, in view of the above conclusion

of this Court.

25.As far as the offense under Section 498A of IPC, is concerned, it

has been held that even mental cruelty would amount to cruelty, within the

menaing of Section 498A of IPC. Now, in this case, from the evidence of

P.W.1, P.W.3, P.W.4, P.W.5, it is clear that the appellant, after the

marriage, he had been dominating, dictating the victim and reprimanded her

even for talking to the neighbours. It is also alleged on earlier occasion, he

has physically assaulted the victim/deceased wife. Even pressurizing the

victim for attending a particular function when the same is too much for the

wife to handle, the demand would amount to mental cruelty. Whether a

particular act amounts to mental cruelty and it differs from person to person https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

and the victim is unable to handle the acts which are per se unreasonable by

the husband. Taking into account of the educational and socio economic

background of the wife, the actions of the husband amounts to cruelty and

therefore, I am of the view that the Trial Court has rightly convicted the

appellant/accused for the offence under Section 498A of IPC.

26.Now considering the sentence of three years imprisonment

imposed by the Trial Court for the offence under Section 498A of IPC, the

learned Counsel for the appellant pleaded the mitigating circumstances that

the accused and the victim had lived for about six years from their marriage

date without any quarrel. Further, the child born to them was taken care by

the appellant/accused and that child is now five years old.

27.The learned counsel would submit that the allegation of cruelty are

not of grave in nature. P.W.1, P.W.3 and other relatives of the victim had

actually accused him of murder and he has to endure the said allegations

and suffered a lot. Therefore, he would pray that in the interest of the minor

child and considering the above factors along with the facts that the accused

was 30 years of age, at the time of occurrence, in the year 2013 and he is

now being 39 years old would pray that this Court to reduce the said https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

sentence of three years imprisonment.

28.Considering the nature of allegations, mitigating factors and

seriousness of offense, I am inclined to modify the sentence imposed by the

Trial Court for the offense under Section 498A of IPC, to two years rigorous

imprisonment.

29.In the result, the Criminal Appeal is partly allowed as follows:-

(i) The conviction and sentence imposed on the accused by the

Learned Mahila Court, Salem by Judgment dated 27.04.2019 in S.C.No.461

of 2016, in respect of the offence under Section 306 of IPC, is set aside;

(ii) The conviction of the accused by the same Judgment for the

offence under Section 498A of IPC is confirmed but the sentence alone is

reduced and the accused is sentenced to undergo two years rigorous

imprisonment and fine of Rs.1,000/- ;

(iii) And in default of payment of fine, to undergo simple

imprisonment for further period of a six months.

21.06.2022 Index:Yes/No Speaking order/Non-speaking order https://www.mhc.tn.gov.in/judis

Crl.A.No.344 of 2019

klt

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

Crl.A.No.344 of 2019

D.BHARATHA CHAKRAVARTHY, J.

klt

To

1.The Sessions Judge, Mahilar Needimandram, Salem.

2.The Deputy Superintendent of Police, Thevoor Police Station, Salem District.

3.The Public Prosecutor, Madras High Court.

Crl.A.No.344 of 2019

21.06.2022

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