Madras High Court
Mari vs The State Rep. By on 22 June, 2022
Crl.A.No.103 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.103 of 2019
Mari .. Appellant
Vs
The State rep. by
The Inspector of Police
Chunambedu Police Station
Kancheepuram .. Respondent
Prayer: Criminal Appeal filed under Section 374(2) of CRPC, to set aside
the judgment dated 11.01.2019 passed in S.C.113 of 2015 by the learned
Sessions Judge Mahila Court, Chengalpet.
For the Appellant : Mr.N.Arunkumar
For the Respondent : Mr.S.Vinoth Kumar
Government Advocate (Crl. Side)
ORDER
On 26.04.2011, when P.W.18, Mr.Arokiaraj was on duty at
Chunambedu Police Station, the statement recorded from the deceased
victim Manjula in the hospital was brought, which was to the effect that
the said Manjula had married the accused before ten years and they had
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two children. But, however the accused developed illicit intimacy with one
Maragatham and on the day of occurrence, that is on 25.04.2011 at about
05.30 pm, she questioned her husband about his illicit intimacy and there
was a fierce quarrel and she was sent out of the home. In order to placate
her husband, she went out to the neighbor's house and after some time,
when she again came back, the accused questioned her that why had she
returned and asked her to get out. Enraged by that, she poured a little
amount of kerosene on herself and tried to threaten her husband that she
will commit suicide. Upon which, the husband told her that with little
amount of kerosene she will not die and snatched the kerosene can and
poured the rest of the kerosene on her and also gave a match box from his
shirt pocket to her and goaded her to set herself on fire. Under these
circumstances, she was forced to lit herself and sustained burn injuries and
to that effect, the statement was given by her in the hospital.
2. On the strength of the said complaint, a case in Crime No.187 of
2011 was registered under Section 498(A) of the Indian Penal Code.
Thereafter, the case was taken up for investigation and immediately
thereof, on 26.04.2011, steps were taken to record the statement of the
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victim as her condition is said to have worsened. Accordingly, a letter in
Exhibit P.6 was addressed by learned Judicial Magistrate,
Madhuranthagam to the learned Sessions Judge, pursuant to which the
Judicial Magistrate-II, Chelgalpattu, who was later examined as P.W.13,
was deputed for recording the dying declaration and after being duly
certified by the doctors as being stable and is under fit state of mind to
make a declaration, on 26.04.2011, the dying declaration of the victim was
recorded and thereafter, the victim succumbed to burn injuries on
28.04.2011. Later, postmortem was conducted and the First Information
Report in the case was altered and P.W.19 completed the investigation and
laid the final report, proposing the accused guilty for the offences under
Sections 498(A), 306 and 4(b) of the Harassment of Women Act.
3. The case was taken on file by the Judicial Magistrate,
Madhuranthagam, in PRC No.28 of 2013 and after appearance of the
accused and furnishing of copies as per Section 207 of the code of
Criminal Procedure, the case was committed to the learned Sessions Judge,
Chengalpattu and was taken on file as SC.No.113 of 2015 and made over
to Mahila Court, Chengalpattu. The Trial Court after consideration of the
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materials on record, framed charges under Sections 498(A) and 306 of
Indian Penal Code and the appellant herein denied the charges and stood
trial.
4. Thereafter, to bring home the charges, the prosecution examined
one Ramesh, brother of the victim as P.W.1, who spoke about the fact that
his sister was married to the accused and there was cruelty to her. Prior to
the occurrence on account of illicit relationship with one Maragatham and
that he heard about the fact as to his sister setting herself on fire by
pouring kerosene on herself. One Kanniyapan, another brother of the
victim was examined as P.W.2, who also spoke on the same lines as that of
the P.W.1. The prosecution examined one Lakshmi as P.W.3, who was the
neighbor to the house of the victim and the accused, who however turned
hostile. Similarly, one Murugesan was examined as P.W.4, who was also a
neighbor and turned hostile. One Ettiyappan was examined as P.W.5, who
was the witness to the observation mahazar. One Vinayagam, who was
examined as P.W.6, was the witness to the confession but however turned
hostile. One Dr.P.Parasakthi was examined as P.W.7, who conducted
postmortem of the body of the victim and rendered medical opinion. One
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Sridharan was examined as P.W.8, who is the Forensic Expert, who
examined the contents of the viscera and gave his report. One
Dr.J.Selvaraj was examined as P.W.9, who was on duty in the hospital in
which the victim was admitted and who gave treatment to the victim and
certified that the victim was conscious and in a state of mind so as to give
statement while the complaint was recorded by P.W.18, the Sub Inspector
of Police. One Dr.Suresh Anandhan was examined as P.W.10, who also
treated the victim and who had issued the accident register and he deposed
the fact that she was conscious and oriented. One Dr.Srinivasan was
examined as P.W.11, who was present at the hospital when P.W.13
Murugesan, namely the Judicial Magistrate recorded the dying declaration
and who certified the victim was conscious and oriented and is in state of
mind so as to give the dying declaration. One Kandhasamy was examined
as P.W.12, who recorded the statement of the victim at the hospital and
handed over to P.W.18. One Murugesan, the learned Judicial Magistrate
who recorded the dying declaration was examined as P.W.13. One Sekar,
who is also a neighbor, who was examined to bring home the factum as to
victim burnt herself and that she was sent to the hospital but however, the
said person examined as P.W.14 turned hostile. One Ravi was examined as
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P.W.15, who is also one of the brother of the victim, who also spoke in
lines that of the P.W.1. One Sankar was examined as P.W.16, who is also a
neighbor, turned hostile. One Selvamani was examined as P.W.17, who is
the Village Assistant, who was present during the inquest and also signed
as a witness to the mahazar. One Arokiyaraj was examined as P.W.18 who
registered the First Information Report. One Balasubramaniam as P.W.19,
who was the Investigating Officer who completed the investigation and
laid the final report.
5. On behalf of the prosecution, the signature of P.W.5 in the
observation mahazar was marked as Exhibit P.1, the postmortem report
was marked as Exhibit P.2, the toxicology report was marked as Exhibit
P.3, the endorsement of the Doctor in the complaint statement was marked
as Exhibit P.4, the accident register copy was marked as Exhibit P.5, the
endorsement of the Doctor on the dying declaration was marked as
Exhibit P.6, the dying declaration of the victim was marked as Exhibit
P.7, the signature of P.W.17 in the confession statement of the accused is
marked as Exhibit P.8, the seizure mahazer is marked as Exhibit P.9, the
complaint statement as stated by the victim to the P.W.12 is marked as
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Exhibit P.10, the First Information Report is marked as Exhibit P.11, the
observation mahazer is marked as Exhibit P.12, the rough sketch is
marked as Exhibit P.13, the alteration report filed in this case is marked as
Exhibit P.14, the inquest report is marked as Exhibit P.15 and the
admissible portion of the confession of the appellant accused is marked as
Exhibit P.16. The prosecution also produced M.O.1, which is the five litre
plastic can used for storing kerosene.
6. Upon being questioned about the material evidence and
incriminating circumstances on record, the accused denied the same as
false. Thereafter, no evidence was let in on behalf of the accused and the
Trial Court thereafter proceeded to hear learned Public Prosecutor
appearing on behalf of the State and learned counsel for the accused and
by the judgment dated 11.01.2019, found the appellant guilty for the
offence under Section 498(A) of the Indian Penal Code and sentenced him
to undergo three years rigorous imprisonment and a fine of Rs.5,000/- and
in default of payment of the fine, to undergo further simple imprisonment
for a period of three months and, for the offence under Section 306 of the
Indian Penal Code, was sentenced to undergo rigorous imprisonment for a
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Crl.A.No.103 of 2019
period of ten years and to pay fine of Rs.5,000/- and in default of payment
of the fine, to undergo further simple imprisonment for a period of three
months. Aggrieved by the same, the present appeal is lodged before this
Court.
7. Heard Ms.R.Revathi, learned Legal Aid Counsel on behalf of the
appellant and Mr.S.Vinoth Kumar, learned Government Advocate (Crl.
Side) and perused the material records of this case.
8. According to learned counsel appearing on behalf of the
appellant, the motive alleged by the prosecution is that the accused
developed illicit intimacy with one Maragatham. The prosecution did not
examine the said Maragatham in this case and therefore the motive itself
is not proved by the prosecution. As far as the action of abetting suicide is
concerned, it is a fact that the appellant accused and the victim were living
together for more than ten years and they had two children aged five years
and seven years and therefore, there was no any undue harassment or
complaint by the victim and no complaint was lodged until the date of
incident and therefore, P.W.1, P.W.2 and P.W.15, who are only the
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brothers of the victim, who have no personal knowledge, cannot depose
anything about cruelty and therefore, the Trial Court errored in convicting
the appellant for offence under Section 498(A) of the Indian Penal Code.
As far as the offence under Section 306 of the Indian Penal Code is
concerned, learned counsel would submit that in this case, there is no any
independent witnesses for the quarrel or the grave cruelty committed by
the accused, which could have been a proximate cause for the victim to
have committed suicide. This apart, as per the case of the prosecution, that
the victim and the accused had two children of age five and seven
respectively and in this case, the prosecution did not examine the said
children who could have been the best witnesses as to whether anything
happened between the parents on the day of occurrence or not and for this
purpose, learned counsel relied upon a judgment of the Honb'le Supreme
Court of India in the case of Surinder Kumar vs. State of Haryana1.
Learned counsel also relied upon a judgment in Ishwar Singh vs. State of
Uttar Pradhesh2, for the preposition that no other independent witnesses
has been examined and the ones sought to be examined also turned hostile
and the prosecution did not elicit any favourable answer in the cross
1[2012 1 SCC(Crl) 230]
2[1976 CJ(SC) 181]
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Crl.A.No.103 of 2019
examination of such hostile witnesses. Then, learned counsel would
further submit that in this case, considering the fact that the occurrence
happened on 25.04.2011 and the condition of the victim worsened on
25.04.2011, it is not safe to rely upon the dying declaration. In this regard,
learned counsel would submit that the Doctor has been cross examined by
suggesting that the victim would not have been in the proper state of mind
to make a dying declaration. She would further submit that even in the
dying declaration, the victim was asking for custody of both the children
and therefore, it is clear that she was not in any kind of knowledge that she
is going to die and therefore, the sanctity given to the declaration cannot
be attached to the instant declaration and therefore, she would submit that
the Trial court errored in convicting the appellant on the basis of the dying
declaration and also prayed that this Court should acquit the accused and
upturn the findings of the Trial Court.
9. Per contra, learned Government Advocate(Crl. Side) would
submit that this is a case where the prosecution has taken due precaution
while recording the dying declaration. Learned Judicial Magistrate has
followed the procedure and the Doctor had duly certified that the victim
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was conscious, oriented and in a state of mind to give the declaration. The
dying declaration is clearly and categorically recorded by the learned
Magistrate and both the learned Judicial Magistrate who recorded the
dying declaration and the Doctor who certified, were all examined as
witnesses in this case. The defence in their cross examination was not able
to extract any favourable answers, therefore, the dying declaration is duly
recorded and proved in the manner known to law. In this case, the victim
had also given the complaint and the said complaint statement is also
marked and the Doctor who was present at the time of recording the
complaint statement is also examined and at that point of time also, the
victim was conscious and oriented and that statement also goes in tandem
with the dying declaration and therefore the stellar piece of evidence by
itself is enough to convict the appellant for both the offences under
Sections 498(A) as well as Section 306 of the Indian Penal Code. He
would submit that since the children were of very tender age and therefore,
ideally left out and there is no error on the part of the prosecution in not
examining them. When the victim herself, who is the best person, has
spoken about what happened between her and her husband, and when the
dying declaration was duly recorded, examination of the children or other
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independent witnesses was not necessary in the instant case. He would
further submit that this is a case in where the prosecution has established
charges to the hilt and therefore, the Trial Court is right in convicting the
accused and he would pray that the accused has been rightly sentenced and
therefore, the appeal is without any merit.
10. I have considered the submissions made on behalf of either side
and perused the materials on record in this case.
11. Before proceeding to analyse the evidences on record, it is
necessary for this Court to re-state the ingredients necessary for the
purpose of proving the offence under Section 306 of the Indian Penal
Code. At the outset, since the marriage had happened ten years ago, in this
case, the presumption under 138(A) does not arise. 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:-
1 (2001) 9 SCC 618
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"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."
12. Therefore, it has to be proved that the accused committed cruelty
or such other abnormal behavior, by which he had goaded her, enticed and
encouraged the victim to commit suicide and this apart, the prosecution
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has to prove that he had the intention to do so.
13. In this case, the complaint statement given by the victim herself
which is marked as Exhibit P.10, clearly and categorically states about the
cruelty meted out to the victim and that once the accused broke the
victim's hand and was sent away to her parent's house, so that, during the
said period he continued to live peacefully with his concubine. Therefore,
the said state of mind is very much there on record and thus, the
prosecution has proved the motive and even though the said Maragatham,
the alleged concubine, is not examined. In this regard, in the cross
examination of the Investigating Officer, the Investigating Officer has also
given reason for not examining Maragatham as, since the occurrence, she
has absconded and vanished from the scene. Therefore, I feel that the
prosecution has established the state of mind / mens rea on the part of the
accused to encourage, entice and instigate the victim to commit suicide
because, there is an intention that he may live thereafter with Maragatham,
against which the victim was raising her voice and quarreling against the
relationship.
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14. In this case, the act done by the accused was categorically
narrated by the victim in the dying declaration and it is useful to extract
the same which reads as follows:
“cdf;F vd;d Mapw;W> brhy;yt[k;/
nej;J uhj;jphp vdf;Fk; vd;
Cl;LfhuUf;Fk; rz;il/ vd; g[Urd; ntW
xU bghz;iz kufjj;ij btr;RUe;jhU/
mij ehd; jl;of; nfl;nld;/ mg;ngh
mtU nfhgkhap vd;id mor;rplhU/ eP
vJf;Fo Cl;Ly ,Uf;fw btspna ngho/
eP brj;J nghd;D brhd;dhU/ mjdhy
ehd; bfhrk; btspna nghapl;L g[UrDf;F
nfhgk; jzpal;Lk;D ,Ue;Jl;L
Cl;Lf;Fs;s te;njd;/
kUgoa[k; v';fo te;jd;D nfl;lhU/
mtiu gaKWj;j bfhnrhz;L
kz;bzz;iza vLj;J vd;nky
Cj;jpfpl;nld;/ clnd vd; Cl;Lf;fhU
kPjKs;s kz;bzz;iziaa[k; vLj;J
vd;nky Cj;jpl;lhU/ mtU rl;il
ghf;bfl;Ly ,Ue;J jPg;bgl;oia
bfhLj;J bfhSj;jpfpl;L rht[od;dhU/
ehd; bfhSj;jpfpl;nld;/ vd; buz;L
gr';fiya[k; vd;fpl;l cl;Llr; brhy;Y';f
rhh;/”
15. Thus, it is clear that the accused had told the victim that with the
little amount of kerosene she will not die. He has also poured the rest of
the kerosene on her and he had taken a match box from his shirt pocket
and handed over to the victim and asked her to set herself on fire and die.
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Therefore, the same clearly and categorically proves the instigation /
abetment as held by the Hon'be Supreme Court of India in the decision
cited supra and therefore in this case, the charges under Section 306 is
proved to be hilt.
16. Similarly, from the statement of the victim herself, corroborated
with the oral evidence of her brothers. It is clear that the accused has
unleashed cruelty on the victim and therefore, the charges under Section
498(A) is also duly established by the prosecution in this case and I,
accordingly find that the findings of the Trial Court as the appellant is
guilty of both the charges under Sections 498(A) and 306 of the Indian
Penal Code as in order and is sustainable and accordingly, I confirm the
conviction.
17. Now, coming to the sentence, it may be seen that the Trial Court
has sentenced the appellant to undergo rigorous imprisonment for a period
of ten years and which is imposed as the maximum punishment. Even
though, in this case, the offence is serious in nature and therefore as far as
possible, the maximum punishment should be given, but, the only
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mitigating factor in this case is that there are two children, even at the time
of commission of offence, aged five years and seven years and this Court
while hearing the appeal, directed learned Government Advocate (Crl.
Side) to get instructions as to the custody of the children and learned
Government Advocate (Crl. Side) on instructions, submitted that in this
case, the children were not taken by anybody from the victim / wife side.
The parents of the appellant accused are also no more and therefore, the
children are with the brother of the appellant accused and have been taken
care of by them.
18. Considering the said fact, I am of the view that the period of
imprisonment imposed by the Trial Court for the offence under Section
306 of the Indian Penal Code can be modified as from ten years rigorous
imprisonment to seven years rigorous imprisonment. The sentence
imposed by the Trial Court in all other respects are confirmed.
19. Accordingly, the Criminal Appeal is partly allowed.
Index : yes/no 22.06.2022
Speaking order/Non-speaking order
drm
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Crl.A.No.103 of 2019
To
1. The Sessions Judge Mahila Court, Chengalpet.
2. The Public Prosecutor, High Court of Madras.
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Crl.A.No.103 of 2019
D.BHARATHA CHAKRAVARTHY. J.,
drm
Crl.A.No.103 of 2019
22.06.2022
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