Madras High Court
Manoharan vs State Rep. By on 3 March, 2022
Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.No.825 of 2019
and Crl.M.P.No.9116 of 2021
Manoharan,
S/o.M.G.Perumal ... Appellant /
Accused No.1
versus
State rep. by
The Inspector of Police,
Burgur Police Station,
Krishnagiri District. ... Respondent /
(Crime No.68 of 2012) Complainant
Prayer: Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure, to set aside the conviction and sentence passed by the
learned Sessions Judge, Fast Track Magalir Neethimandram, Krishnagiri,
Krishnagiri District dated 11.11.2019 in S.C.No.43 of 2018.
For Appellant : Mr.Parthiban
for Mr.E.Kannadasan
For Respondent : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl. Side)
1/17
https://www.mhc.tn.gov.in/judis
Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
JUDGMENT
The present Criminal Appeal has been filed by the appellant to
set aside the judgment of conviction and sentence passed by the learned
Sessions Judge, Fast Track Magalir Neethimandram, Krishnagiri,
Krishnagiri District dated 11.11.2019 in S.C.No.43 of 2018.
2. The appellant herein is arrayed as first accused in the
above referred case. He stood charged for an offence under Section 302 of
IPC. The other 3 accused, who are arrayed as A-2 to A-4 are tried for the
offence under Section 302 r/w 109 of IPC. By a judgment dated 11.11.2019,
the learned Sessions Judge, Fast Track Magalir Neethimandram,
Krishnagiri, Krishnagiri District, convicted the appellant under Section 306
of IPC and sentenced to undergo Rigorous Imprisonment for seven 7 years
and to pay a fine of Rs.20,000/-, in default to undergo Rigorous
Imprisonment for 9 months. Further, the other accused are all acquitted from
the charge under Section 302 r/w 109 of IPC.
3. Challenging the said conviction and sentence, the first
accused / appellant is before this Court, by way of filing the present
Criminal Appeal.
https://www.mhc.tn.gov.in/judis
Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
4. The case of the prosecution, in brief, is as follows;
4.1. P.W.6-Munusamy is the father of the deceased Rekha
and P.W.1-Selvarani is her mother. Before the occurrence, both the
appellant and the deceased fell in love with each other. Later, after lodging a
complaint before the Hosur Women Police Station, the appellant along with
accused nos.2 and 3 approached the parents of the deceased and fixed the
date for his marriage with the deceased. However after sometime, the
appellant refused to marry the deceased saying that she is an illiterate lady.
Before the said occurrence, the deceased became pregnant and afterwards,
she aborted the foetus. In the said sequence of events, during the relevant
point of time around 12.00 noon, while at the time P.W.4-Murugan and one
Manogaran were found available, the deceased Rekha came there and told
to P.W.4 as due to the misunderstanding with the first accused, she
consumed poison, and requested to save her life. After hearing the same,
P.W.4 admitted the deceased in the Krishnagiri Government Hospital, but
on the next day, i.e. 23.02.2021 around 10.00a.m. the said Rekha had died.
Immediately, P.W.4 informed the death of Rekha to the parents of Rekha
and her relatives. After hearing the news from P.W.4, P.W.1 Selvarani came
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Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
to the Hospital and after seeing the dead body of the deceased Rekha lodged
a complaint [Ex.P.1] before P.W.9.
4.2. P.W.9-Senthamarai, the then Sub-Inspector of Police,
Burgur, on receipt of the complaint, registered a case in Crime No.68 of
2012 under Section 174 Cr.P.C. The printed F.I.R. was marked as Ex.P.6.
After registration of the F.I.R., she visited the scene of occurrence and in the
presence of witnesses, she prepared an Observation Mahazar and Rough
Sketch under Ex.P.2 and P.7 respectively. She examined the witnesses and
recorded their statements. During investigation, she found out that before
the occurrence, the appellant herein being the lover of the deceased
demanded to pay a dowry of Rs.60,000/- for solemnising the marriage with
him. In this regard, both the appellant and the deceased decided to consume
poison and in order to commit the same, both of them went to the Nizar gate
area and by using two tumblers, they mixed water with poison. Later, after
consuming the poison by the deceased, the appellant thrown away the
poison. After knowing the same, the deceased Rekha abused the appellant
and assaulted on his cheek, and then only P.W.4 admitted Rekha in the
hospital. In the meanwhile, after investigating the case as above, P.W.9
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Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
prepared an inquest report under Ex.P.8. Further, she altered the Section of
law into Section 306 of IPC and submitted the alteration report to the Court.
The alteration report submitted by the Sub-Inspector of Police was marked
as Ex.P.9.
4.3. After completing the above formalities, she submitted an
application before the Doctor attached with Government Hospital,
Krishnagiri, for conducting postmortem over the dead body of the deceased
Rekha. P.W.7-Jaganmohan, the Doctor, attached with Government Hospital,
Krishnagiri, on receipt of the requisition given by the Sub-Inspector of
Police, conducted postmortem and found the following injuries on the dead
body of the deceased:
“No External injuries.
Internal injuries;
Ribs intact - 200 ml blood of weighed 300gms.
Hyoid bone intact.
Brownish fluid in stomach seen.
Liver - 1200 gms congested.
Spleen - 90 gms weighed congested.
Kidneys 120 gms exact.
Skull intact.
Brain 1320 gms weight normal.”
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Crl.M.P.No.9116 of 2021
4.4. He collected viscera and sent the same for chemical
examination. On receipt of the viscera, P.W.10-Geetha, examined the same
and she found that there was a organic poison in the viscera. In this regard,
she issued a report under Ex.P.4 and after receipt of the same, P.W.9
submitted the case records to P.W.11 for further investigation.
4.5. P.W.11, the then Inspector of Police, on receipt of the
case records from P.W.9, visited the scene of occurrence and examined the
witnesses. Since the witnesses gave statement as stated before P.W.9, the
statement given by those witnesses, are not recorded. Afterwards, since he
was transferred from the said office, investigation was continued by P.W.12.
4.6. P.W.12, the then Inspector of Police, after examining the
chemical examiner received the chemical examiner report and filed the Final
Report alleging that the accused and others are liable to be convicted under
Section 302 r/w 109 of IPC.
5. Based on the above materials, the trial Court framed
charges under Sections 306 and 302 r/w 109 of IPC and all the accused
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Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
denied the same. In order to prove their case, on the side of the prosecution,
as many as 12 witnesses were examined as P.W.1 to P.W.12 and 12
documents were exhibited as Exs.P.1 to P.12.
6. Out of the said witnesses, P.W.1-Selvarani, is the mother
of the deceased. She knows the other accused and the family members of the
appellant. She spoken about the occurrence as previous to the occurrence,
both the deceased and the appellant fell in love with each other. Before the
marriage, the accused threatened the deceased as he is going to marry an
educated lady. One day due to the request made by the deceased, she came
and found that the deceased became pregnant. However, due to the
intervention of the deceased, the same was aborted. According to her, for
the past 12 years, both the deceased and the appellant lived together as
husband and wife. In the meanwhile, one day, she came to the knowledge
that the deceased consumed poison, came to the occurrence place and after
seeing her daughter, lodged a complaint.
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Crl.M.P.No.9116 of 2021
7. P.W.2-Gopi, who is the cousin brother of the deceased
and P.W.3-Indirani is the sister of P.W.1, gave evidence in support of the
evidence given by P.W.1.
8. P.W.4-Murugan, is the person residing in the same
village. After came into the knowledge of the occurrence, he admitted the
deceased in the hospital.
9. P.W.5-Saradha is the house lady of the deceased speaks
about the family of the deceased and the appellant. According to her, she
advised P.W.4 to admit the deceased in the hospital.
10. P.W.6-Munusamy is the father of the deceased gave
evidence in support of the evidence given by P.W.1.
11. P.W.7-Jaganmohan is the Doctor attached with
Government Hospital, Krishnagiri, spoken about the antemortem injuries
sustained by the deceased and also about the cause of death.
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Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
12. P.W.8-Sophia Lithvin, is the constable, who handed over
the dead body of the deceased for postmortem.
13. P.W.9-Senthamarai, the then Sub-Inspector of Police
speaks about the receipt of complaint from P.W.1, registration of the case
and investigation.
14. P.W.10-Geetha, is the Chemical Examiner spoken about
the examination of viscera collected from the dead body.
15. P.W.11 and P.W.12 are the police officers spoken about
the investigation made in this case and about the arrest of accused and also
about the filing of the final report.
16. When the above incriminating materials were put to the
accused under Section 313 Cr.P.C., he denied the same as false and on their
side, none examined as defence witness.
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Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
17. The learned Sessions Judge, Fast Track Magalir
Neethimandram, Krishnagiri, after perusing all the above materials and on
considering the arguments advanced by either side, convicted and sentenced
the appellant as stated supra. Aggrieved over the said conviction and
sentence, the appellant is before this Court with this appeal.
18. I have heard Mr.Parthiban, learned counsel for
Mr.E.Kannadasan appearing for the appellant and Mr.Leonard Arul Joseph
Selvam, learned Government Advocate (Crl. Side) appearing for the State.
I have also perused the records carefully.
19. The learned counsel appearing for the appellant would
contend that the evidence given by the witnesses, who are all examined on
the side of the prosecution, did not say about the abetment committed by the
appellant. He would further submit that after framing the charge for the
offence under Section 302 of IPC, without seeing the contents of the charge,
the trial Court convicted the accused under Section 306 of IPC. Here, it is a
case, though the prosecution has proved that the death of the deceased is
due to the consumption of poison, in order to prove the offence under
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Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
Section 306 of IPC, it would necessary for the prosecution to show that the
abetment which have been committed by the appellant. But in this case,
nothing was shown through the prosecution witnesses as during the relevant
point of time, the appellant abeted the deceased for committing the suicide.
20. Per contra, the learned Government Advocate (Crl.Side)
appearing for the respondent police would contend that the evidence given
by the prosecution witnesses will prove that during the relevant point of
time, the appellant abeted the commission of suicide. According to him,
interference of this Court in the judgment rendered by the trial Court, is not
necessary.
21. I have considered the rival submissions made on either
side and perused the records carefully.
22. Admittedly, here, it is a case, after admitting the
deceased in the hospital, she was alive for nearly 24 hours, in the
interregnum period, for the reasons best known to the Doctors and the
Police Officers, no dying declaration has been recorded from the deceased.
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Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
Apart from that, it is the case of the prosecution that, immediately after
came into the knowledge that the deceased consumed poison, P.W.4
admitted her in the hospital. Therefore, in the said circumstances, it would
probable for the deceased as well as to the P.W.4 to say about the details to
the Doctor as under what circumstances, she consumed poison. But, here, it
is a case, the respondent police has not recovered the Accident Register
Copy, which has been prepared at the time of admitting the deceased in the
hospital. Therefore, non-filing of the said document, is nothing but a fatal to
the prosecution.
23. The another circumstances now narrated by the
prosecution is that, as per the investigation during the relevant point of time,
both the deceased and the appellant decided to consume poison and later,
while at the time of consuming poison, the appellant making a drama and
thrown away the poison. On the other hand, the deceased consumed the
same. In this regard, none of the witnesses on the side of the prosecution
gave evidence as before the occurrence both the deceased and the appellant
are in the occurrence place. Even the deceased has not stated anything
before P.W.4.
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Crl.M.P.No.9116 of 2021
24. P.W.4, who is the witness, saw the deceased gave
evidence before the trial Court that after seeing the deceased, she told to
him that she consumed poison. In otherwise, she never stated about the
accused. In the said circumstances, assuming that the appellant and the
deceased are having the family dispute, it would not sufficient to conclude
the occurrence as during the relevant point of time, the accused abeted the
deceased for committing the suicide. In respect to the abetment, Section 107
of IPC reads as follows;
“107.Abetment of a thing.- A person abets the doing of a thing, who—
First.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
thing; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing of
that thing.”
25. Now, applying the evidence given by the prosecution
witnesses with the contents of the above provisions, the witnesses examined
on the side of the prosecution have not stated about the conspiracy for the
doing of that thing, or about the illegal omission takes place.
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26. In a case of STATE OF RAJASTHAN vs. KESA
reported in 2002 Crl.L.J.432 (Raj), in respect of the ingredients of Section
306 of IPC, it has observed as follows;
“In order to constitute abetment, the abettor must be shown to have
“intentionally” aided the commission of the crime. Mere proof that the
crime charged could not have been committed without the interposition of
the alleged abettor, is not enough compliance with the requirements of
section 107, I.P.Code.”
27. Therefore, for convicting the accused under Section 306
of IPC, it would necessary to see whether the petitioner is intentionally
aided the commission of the crime. Here, it is a case, the presence of the
accused for proving the case in the occurrence place, there is no evidence
available from the prosecution witness. The person, who admitted the
deceased in the hospital stated that while at the time the deceased
approached him, the appellant was in Dharmapuri. It creates a suspicious
circumstances over the case of the prosecution as the appellant abetted the
commission of suicide and the same create a doubt over the case of
prosecution. It is a settled law that the benefit of doubt is always goes in
favour of the accused. Here, it is a case, the trial Court, without appreciating
the same, convicted the accused, which is erroneous in law.
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Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
28. Accordingly, this Criminal Appeal is allowed. The
conviction and sentence imposed upon the appellant / first accused by the
learned Sessions Judge, Fast Track Magalir Neethimandram, Krishnagiri,
Krishnagiri District dated 11.11.2019 in S.C.No.43 of 2018, for the offence
under Section 306 of IPC, is set aside. Consequently, connected Criminal
Miscellaneous Petition is closed.
03.03.2022
Speaking / Non-speaking order
Index : Yes / No
Internet : Yes
sri
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Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
To
1.The Sessions Judge,
Fast Track Magalir Neethimandram,
Krishnagiri, Krishnagiri District.
2.The Inspector of Police,
Burgur Police Station,
Krishnagiri District.
3.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.A.No.825 of 2019 and
Crl.M.P.No.9116 of 2021
R.PONGIAPPAN, J.
sri
Crl.A.No.825 of 2019
and Crl.M.P.No.9116 of 2021
03.03.2022
https://www.mhc.tn.gov.in/judis
