Madras High Court
Arunachalam vs The State Represented By on 22 March, 2022
Crl.O.P.(MD)No.19952 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P(MD)No.19952 of 2021
&
Crl.M.P(MD)Nos.11248 & 11249 of 2021
1. Arunachalam
2. Sivasankaravelu
3. Sivakami Sundari
4. Maheshwari ... Petitioners/
Accused 1 to 4
Vs.
1. The State represented by
The Inspector of Police,
Rajapalayam North Police Station,
Virudhunagar District.
(Crime No.686 of 2019) ... 1st Respondent/
Complainant
2. Selvaraj ... 2nd Respondent/
Defacto Complainant
Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C., to call for
the records and quash the proceedings in P.R.C.No.24 of 2021 on the file of the
Judicial Magistrate Court, Rajapalayam.
For Petitioners : Mr.V.Kathirvelu Senior Counsel
for Mr.K.Prabhu
For Respondents : Mr.B.Thanga Aravindh
Government Advocate (Criminal Side)
for R.1
https://www.mhc.tn.gov.in/judis
1/18
Crl.O.P.(MD)No.19952 of 2021
Mr.S.Muniyandi for R.2
ORDER
This Criminal Original Petition has been filed to quash the proceedings
in P.R.C.No.24 of 2021 on the file of the Judicial Magistrate Court,
Rajapalayam.
2. The case of the prosecution is that the deceased Ashwini was the
daughter of the second respondent. On 14.11.2013, marriage was took place
between the said Ashwini and the first petitioner herein and during which, the
second respondent has given 100 sovereigns of gold and house hold articles as
dowry. Initially, the first petitioner was working in Chennai and that he was
living alone with the deceased Ashwini for a period of one and half years at
Chennai. Out of the wedlock, the first petitioner and the deceased Ashwini are
having a 5 years old daughter by name, Ananya and 2 years old son by name,
Sivaarumugavel. As the first petitioner did not like his work at Chennai , he
came to his native place and lived along with his family. Since then, the
deceased Ashwini was ill-treated by the petitioners herein demanding additional
dowry of 50 sovereigns of gold and cash of Rs.2,00,000/-. In the year 2019, in
view of the repeated ill treatment made by the petitioners herein, the deceased
Ashwini left her matrimonial home and came to the house of the second
respondent. Thereafter, after 5 months on 21.12.2019, the deceased Ashwini
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Crl.O.P.(MD)No.19952 of 2021
was depressed and was stating to her parents that she wants to die as no efforts
were taken by the first petitioner for reconciliation and that her parents have
not taken any steps to give the dowry that the petitioners demanded.
Thereafter, the second respondent advised the deceased Ashwini and asked her
to sleep. On 21.12.2019, at around 04.20 a.m, the second respondent was
shocked to see that his daughter committed suicide by hanging in ceiling fan
along with her handwritten dairy and the second respondent gave a complaint
to the respondent Police and that the present case came to be registered.
3. The petitioners also stated that after registering the case, the
respondent Police conducted investigation and filed charge sheet on the file of
the learned Judicial Magistrate, Rajapalayam as against these petitioners for
offence under Section 306 IPC. Thereafter, the learned Judicial Magistrate,
Rajapalayam, took cognizance of the case under Section 306 IPC against all the
petitioners. As such, challenging the proceedings in P.R.C.No.24 of 2021 on
the file of the learned Judicial Magistrate, Rajapalayam.
4. The learned Senior Counsel submitted that a bare perusal of the final
report revealed that the complaint preferred against the petitioners are with
wage allegations. Section 306 IPC reveals that the averments to commit
suicide. Even as per the case of the prosecution, no ingredients is made out to
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Crl.O.P.(MD)No.19952 of 2021
abetment to commit suicide. Section 107 IPC defines abetment to which even
in accordance to the complaint of the second respondent there is no instigation
on the first petitioner’s husband which leads to suicide of the second
respondent. The suicidal notes of the deceased revealed that no allegations of
any nature as against the first petitioner and even then the first respondent
mechanically impleaded the petitioner also in the charge sheet. In support of
this contention, judgment of this Court passed in Crl.O.P(MD)No.5069 of
2015.
5. Per contra the learned counsel for the second respondent would submit
that the first respondent is none other than the husband of the deceased. He
also continue with other accused persons and tortured his wife by demanding
huge dowry. Therefore, she left the matrimonial house and she was staying in
her parent’s house and committed suicide. Suicidal notes is very clear that only
on the instigation of the other accused persons first accused, namely, her
husband harassed the deceased and due to which she lived in her parents house.
Though there is no specific allegations as against the first accused, he is the
root cause for all the allegations and he used her family members and dance to
the tune of their words. Therefore, the points raised by the petitioner have to be
considered only during trial and it is premature.
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Crl.O.P.(MD)No.19952 of 2021
6. The learned Government Advocate (Criminal Side) submitted that all
the statements recorded under Section 161(3) revealed that there are specific
allegations as against all the accused persons and as such be quashed and only
brought for dismissal for quash petition. There are totally 4 accused and at the
time of admission of this petition, the counsel for the petitioner has withdrawn
the quash petition insofar as the petitioners 2 to 4 herein and dismissed and
insofar the first petitioner is arrayed as first accused, who is none other than the
husband of the deceased.
7. The case of the prosecution is that on 14.11.2013 the first petitioner
and the deceased got married and during their marriage 100 sovereigns of
jewels and household articles were presented as dowry. The first petitioner was
working in Chennai and gave birth to a female child and a male child.
Thereafter, the first petitioner came to his native and lived along with her
family members. The family members of the first petitioner demanded huge
dowry and due to which they harassed and the deceased ill-treated. She left
from matrimonial home and lived with her parents for the past 5 years and on
21.12.2019 the deceased was depressed for the reason that the first petitioner
did not take any steps to reconciliation and continuously harassed her.
Therefore, she committed suicide by hanging. The suicidal notes of the
deceased is as follows:-
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Crl.O.P.(MD)No.19952 of 2021
“,dk;-2y; fz;l Mtzj;jpy; cs;s vOj;Jf;fs;:-
cq;fs; kfs; filrpahf vOJk; fbjk;> mg;gh
cq;fisAk;> mk;khitAk;> jk;gpiaAk; vd;
Foe;ijfisAk; gphptij vz;zp ngUe;Jauk;
nfhs;fpNwd;. cq;fSf;fhf kl;LNk ,j;jid ehl;fs;
vd; uzq;fis kwe;J tho;e;J nfhz;bUe;Njd;. ,dpAk;
tho KbAk; vd Njhd;wtpy;iy. vd; khkdhh; Ngrpa
thh;ijfisAk;> khkpahh; nra;j nfhLikfisAk;
ehj;jdhh; ,ioj;j JNuhfq;fisAk;> vd;dhy; [Puzpf;f
Kbatpy;iy. kd ciyr;rYf;F cs;shfp ehd; gLk;
Ntjidia cq;fsplk; gfpu kdk; tutpy;iy. ePq;fs;
Ntjidia Ntz;lhk; vd kiwj;J tpl;Nld;. vd;id
gw;wp mtJ}W gug;Ggth;fis ,iwtdpd; ghh;itf;F
tpl;L tpLfpNwd;. Foe;ijfis tpl;L gphpa
kdkpy;yhky; tpil ngWfpNwd;. vd; Kbtpw;F
fhuzkhdth;fs; vd; ehj;jdhh; kNf];thp> vd; khkpah;
rptfhkp Re;jhp> vd; khkdhh; rptrq;fuNtY ,g;gbf;F
cq;fs; md;G kfs; m];tpdp" vd;Wk;>
November 2011-21 Monday vd;w Njjp mr;rpbf;fg;gl;l
gf;fj;jpy;:-
vdJ mUik fztUf;F ehd; $wpf; nfhs;s
tpUk;GtJ. cq;fSf;F gpbj;j neUf;fkhdth;fSf;fhf
(cq;fs; mk;kh> mg;gh> jq;if) vd;id if tpl;lij
Nghy ek; Foe;ijfisAk; if tpl;L tplhjPh;fs;.
mth;fs; ek;ik ek;gp gpwe;jth;fs;> ghjpapy; tpl;L tpl;L
Nghtjw;F tUe;JfpNwd; NtW topapy;iy. cq;fs;
mk;kh> mg;gh> jq;if $wpaJ Nghy mofhd ey;y
nghpa trjpahd tPl;L ngz;iz jpUkzk; (kWkzk;)
nra;J nfhz;L epk;kjpahf tho
tho;j;JfpNwd;. ,g;gbf;F mdd;ah> rptMwKfNtypd;
jha;" vd;Wk; ,Ue;jJ.”
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Crl.O.P.(MD)No.19952 of 2021
As per the suicidal notes there is no allegation as against her husband,
namely, the first petitioner herein.
8. That apart, admittedly the deceased had left matrimonial home before
five months from the date of suicide, ie., on 21.12.2019. as such soon before
her death there was no instigation by the first accused to commit suicide.
9. In this regard, it is relevant to refer the judgment in (2002) 5 Supreme
Court Cases 371 – Sanju Vs. State of M.P., wherein the Hon'ble Supreme
Court has held as follows:-
“6.Section 107 I.P.C defines abetment to mean that a
person abets the doing of a thing if he firstly, 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.
7.Before we advert further, at this stage we may
notice a few decisions of this Court, relevant for the
purpose of disposal of this case.
8.In Swamy Prahaladdas v. State of M.P. & Anr. ,
1995 Supp. (3) SCC 438, the appellant was charged for an
offence under Section 306 I.P.C. on the ground that the
appellant during the quarrel is said to have remarked the
deceased 'to go and die' . This Court was of the view that
mere words uttered by the accused to the deceased 'to go
and die' were not even prima facie enough to instigate the
deceased to commit suicide.
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Crl.O.P.(MD)No.19952 of 2021
9.In Mahendra Singh v. State of M.P., 1995 Supp.(3)
SCC 731, the appellant was charged for an offence
under Section 306 I.P.C basically based upon the dying
declaration of the deceased, which reads as under:
"My mother-in-law and husband and sister-
in-law (husband's elder brother's wife)
harassed me. They beat me and abused me.
My husband Mahendra wants to marry a
second time. He has illicit connections with
my sister-in-law. Because of these reasons
and being harassed I want to die by
burning."
10.This Court, considering the definition of
'abetment' under Section 107 I.P.C., found that the charge
and conviction of the appellant for an offence
under Section 306 is not sustainable merely on the
allegation of harassment to the deceased. This Court
further held that neither of the ingredients of abetment are
attracted on the statement of the deceased.
11.In Ramesh Kumar V. State of Chhattisgarh (2001)
9 SCC 618, this Court while considering the charge framed
and the conviction for an offence under Section 306 I.P.C.
on the basis of dying declaration recorded by an Executive
Magistrate , in which she had stated that previously there
had been quarrel between the deceased and her husband
and on the day of occurrence she had a quarrel with her
husband who had said that she could go wherever she
wanted to go and that thereafter she had poured kerosene
on herself and had set fire. Acquitting the accused this
Court said:
"A word uttered in a fit of anger or emotion without intending the
consequences to actually follow cannot be said to be instigation. If it
transpires to the court that a victim committing suicide was
hypersensitive to ordinary petulance, discord and differences in
domestic life quite common to the society to which the victim belonged
and such petulance, discord and differences were not expected to induce
a similarly circumstanced individual in a given society to commit
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Crl.O.P.(MD)No.19952 of 2021
suicide, the conscience of the court should not be satisfied for basing a
finding that the accused charged for abetting the offence of suicide
should be found guilty."
10. In the above decision, the order of the Hon'ble Supreme Court held
that even the word “to go and die” were not even prima facie enough to
instigate the deceased to commit suicide. Further, considering the definition of
abetment under Section 107 of IPC found that the charge for the offence under
Section 306 is not sustainable merely on the allegation of threat of the
deceased. Further, the ingredients of the offence of abetment are not at all
attracted as per the statement of the witnesses. Therefore, the charges, as
against the first petitioner is concerned, cannot be sustained.
11. Further, it is also relevant to refer the judgment of the Hon'ble
Supreme Court reported in AIR 2010 Supreme Court 317 – Gangula Mohan
Reddy Vs. State of Andhra Pradesh, wherein, the Apex Court has held as
follows:-
“20.Abetment involves a mental process of instigating a
person or intentionally aiding a person in doing of a thing. Without
a positive act on the part of the accused to instigate or aid in
committing suicide, conviction cannot be sustained.
“21.The intention of the Legislature and the ratio of the cases
decided by this Court is clear that in order to convict a person under
Section 306, IPC, there has to be a clear mens rea to commit the
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Crl.O.P.(MD)No.19952 of 2021
offence. It also requires an active act or direct act which led the
deceased to commit suicide seeing no option and this act must have
been intended to push the deceased into such a position that he
committed suicide.
22.In the light of the provisions of law and the settled legal
positions crystallised by a series of judgments of this Court, the
conviction of the appellant cannot be sustained. Consequently, the
appeal filed by the appellant is allowed and disposed of.”
12. In the above case, the abetment involves mental process of instigating
a person or intentionally aiding a person in doing of a thing. Without positive
act on the part of the accused to instigate or aided the deceased in committing
suicide, the charge cannot be sustained.
13. It is also relevant to refer the order passed in Crl.O.P.(MD) No.
24858 of 2006 dated 28.07.2009 – N.Anjali Devi and V. Veeran Vs. The
Superintendent of Police and Inspector of Police, wherein, this Court has
held as follows:
“9. In the case of Swamy Prahaladdas Vs. State of
MP and another [1995-Supp-3-SCC-438], the accused
was charged for an offence under Section 306 of IPC on
the ground that the accused during the quarrel is said to
have remarked to the deceased to go and die and the
Honourable Supreme Court, was of the view that mere
words uttered by the accused to the deceased to go and
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Crl.O.P.(MD)No.19952 of 2021
die were not even prima facie enough to instigate the
deceased to commit suicide.
10. In the case of Mahendra Singh Vs. State of MP
[1995-Supp-3-SCC-731], the accused was charged for an
offence under Section 306 of IPC based upon the dying
declaration of the deceased, which reads as under:-
"My mother in law and husband and sister in
law (husband's elder brother's wife) harassed
me. They beat me and abused me. My husband
Mahendra wants to marry a second time. He
has illicit connections with my sister in law.
Because of those reasons and being harassed I
want to die by burning."
The Honourable Supreme Court, considering the
definition of abetment under Section 107 of IPC, found
that the charge and conviction of the accused in the above
said case for the offence under Section 306 of IPC is not
sustainable merely on the allegation of harassment to the
deceased. The Apex Court further held that none of the
ingredients of abetment were attracted on the statement of
the deceased.
11. In yet another case of Ramesh Kumar Vs. State
of Chhattisgarh [2001-9-SCC-618], the Honourable
Supreme Court, while considering the charge framed and
conviction for the offence under Section 306of IPC on the
basis of the dying declaration recorded by the Executive
Magistrate, in which she had stated that previously there
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Crl.O.P.(MD)No.19952 of 2021
had been quarrel between the deceased and her husband
and on the day of occurrence she had a quarrel with her
husband, who had said that she could go wherever she
wanted to go and that thereafter she had poured kerosene
on herself and had set fire, acquitting the accused, the
said:-
"A word uttered in a fit of anger or emotion
without intending the consequences to
actually follow cannot be said to be
instigation. If it transpires to the court that
a victim committing suicide was
hypersensitive to ordinary petulance,
discord and difference in domestic life
quite common to the society to which the
victim belonged and such petulance
discord and difference were not expected to
induce a similarly circumstanced
individual in a given society to commit
suicide, the conscience of the court should
not be satisfied for basing a finding that
the accused charged for abetting the
offence of suicide should be found guilty."
12. Reverting to the facts of the case, the statement
of the witnesses made under Section 161 Code of
Criminal Procedure would reveal that the stolen money
had been recovered from the deceased girl and she was
reprimanded by the Teachers more particularly by the
Petitioners herein for stealing the money. In the dying
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Crl.O.P.(MD)No.19952 of 2021
declaration, the deceased girl had stated that the 2nd
Petitioner remarked her to go and die and the 1st
Petitioner slapped on her cheek and scolded her in harsh
words. Even assuming that the Petitioners have acted in
the above said manner and uttered the above words as
projected by the Prosecution, it is to be seen as to whether
the said utterance would by itself constitute the
ingredients of 'instigation'.
13. The word "instigate" denotes incitement or
urging to do some drastic or inadvisable action or to
stimulate or incite. The presence of mens rea, therefore, is
the necessary concomitant of instigation. It is common
knowledge that the words uttered in a quarrel or in a spur
of the moment cannot be taken to be uttered with mens
rea. Secondly, the said abusive words is said to have been
uttered to the deceased by the Petitioners, when they had
come to know that the deceased had stolen the money
from the bag of the Anganvadi Teacher and money was
also recovered from her. Thirdly, the deceased had her
lunch in the School and attended the post lunch session
classes and left the School only after it was over and she
had committed suicide only after reaching the home. All
these factors would clearly point out that it could not be a
direct result of the utterances made by the Petitioners.
14. In the case of Sanju aliss Sanjay Singh Sengar
Vs. State of MP {AIR-2002-SC-1998], it is held that the
accused telling the deceased to go and die would by itself
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Crl.O.P.(MD)No.19952 of 2021
not constitute the ingredients of instigation and presence
of mens rea is necessary concomitant of instigation.
Holding so, the Honourable Supreme Court quashed the
charge sheet framed under Section 306 of IPC on the
ground that the ingredients of abetment is totally absent.
15. One important thing to be noted in this case is
that the Petitioners being the Teachers of the Government
School in the interest of the Institution correct any
mistake done by the student in order to cultivate good
habits and get rid of bad habits, such as stealing money.
In fact, the father of the deceased girl had been
summoned and it is stated that he gave a letter of apology
for the conduct of his daughter and also undertook that
the same would not recur again. In such view of the
matter, the act of the petitioners cannot be said that it
would amount to abetment of suicide.
16. In the case of Sashi Prabha Devi Vs. State of
Assam [2006-Cri.LJ-1762], the allegation is that the
accused, a Head Mistress of a School wrongly struck off
the name of the deceased from the Register of the Students
in Class X, which induced the deceased to commit suicide
and the High Court of Gujarat has held that there was no
evidence showing that the accused had acted at any point
of time, suggested or hinted for commission of suicide and
when the accused was entitled to correct any wrong order,
as in fact deceased had not passed her class IX
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examination, no case of instigation or abetment of suicide
was made out against the accused.
17. In the case of Nettai Dutta Vs. State of will be
[2005-2-SCC-659], the Honourable Supreme Court
upholding the order of the High Court, quashed the
charge sheet filed under Section 306 of IPC on the ground
that the offence under Section would stand only if there is
an abetment for the commission of crime.
18. In a very recent decision rendered in the case of
Sonti Ramakrishna Vs. Sonti Shanthi Shree and another
[2009-1-SCC-554], the Honourable Supreme Court has
held that though normally threshold interference should
not be made under Section 482 Code of Criminal
Procedure, quashing of the complaint on facts was just
and necessary. It has also held that words uttered in a fit
of anger or emotion without any intention cannot be
termed as instigation.”
14. By applying the above said well settled principles guided by the
Hon'ble Supreme Court in a catena of decisions cited supra to the present case,
the charges as against the first petitioner cannot be sustained. In these
circumstances, there is no need for the first petitioner to go for ordeal trial and
the entire proceedings is clear abuse of process of law.
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15. Moreover, RDO conducted a detailed enquiry and by report dated
07.02.2020 revealed that the deceased committed suicide within a period of
seven years from the date of their marriage. Her marriage life with the first
accused went on happily. When they attached to the join family there was
dowry demand by other family members and concluded that the death was not
happened due to dowry harassment.
16. Therefore, in view of the above, the proceedings in P.R.C.No.24 of
2021 is quashed , the Criminal Original Petition is allowed for the first accused
alone. The learned Judicial Magistrate, Rajapalayam, is directed to complete
the proceedings in respect of other petitioners within a period of six months
from the date of receipt of copy of this order. Consequently, connected
miscellaneous petitions are closed.
22.03.2022
Index : Yes / No
Internet : Yes/ No
mga
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is presented is
the correct copy, shall be the responsibility of the advocate/litigant
concerned.
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Crl.O.P.(MD)No.19952 of 2021
To
1. The Judicial Magistrate Court,
Rajapalayam.
2. The Inspector of Police,
Rajapalayam North Police Station,
Virudhunagar District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.19952 of 2021
G.K.ILANTHIRAIYAN, J.
mga
Crl.O.P(MD)No.19952 of 2021
&
Crl.M.P(MD)Nos.11248 & 11249 of 2021
22.03.2022
https://www.mhc.tn.gov.in/judis
