Madras High Court
Kayar Nisha vs State By Inspector Of Police on 2 July, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2025:MHC:1556
Crl.A.No.572 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2025
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.572 of 2016
1. Kayar Nisha
2. Rafia .. Appellants
Versus
State by Inspector of Police,
B-14, Kuniamuthur Police Station,
Kuniamuthur, Coimbatore.
(in Crime No.733/2011) .. Respondent
Prayer : Criminal Appeal filed under Section 374(2) of Cr.P.C., to allow this
Criminal Appeal and to set aside the judgment of the learned Sessions Judge,
Magalir Neethimandram (Mahila Court), Coimbatore in S.C.No.28 of 2012,
dated 21.07.2016.
For Appellants : Mr.J.Franklin
For Respondent : Ms.J.R.Archana,
Government Advocate (Crl. Side)
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Crl.A.No.572 of 2016
JUDGMENT
This Criminal Appeal challenges the judgment dated 21.07.2016 in
S.C.No.28 of 2012 on the record of the learned Sessions Judge, Magalir
Neethimandram (Mahila Court), Coimbatore. By the judgment, both
appellants were found guilty of an offence punishable under Section 305 of
the Indian Penal Code and were sentenced to three years of rigorous
imprisonment, a fine of Rs.2,000/- each, and in default, to three months of
simple imprisonment.
2. The brief facts leading to the filing of this appeal are that on
18.08.2011, at about 14:00 hours, upon receiving information from the
C.M.C.H. Hospital, P.W.12, Mahalingam, who is the Special Sub-Inspector
of Police at Kuniamuthur Police Station, proceeded to the hospital where the
victim in this case, a minor girl about 15 years old at that time and studying
in X standard, gave a statement indicating that she resides at a specific
address with her parents and younger brother, who is studying in VII
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standard. She stated that she fell in love with Saddam Hussain, aged about
19 years, who is a neighbour. The affair became known to Saddam
Hussain's relatives. His parents admonished him for his actions, but he was
determined to continue the relationship and marry the victim.
3. At that point, the parents of the said Saddam Hussain also agreed to
marry the victim to him. Three months later, the parents of the said Sadam
Hussain also visited the victim's house, and arrangements for the marriage
between the victim and Sadam Hussain were being made. Under these
circumstances, the appellants/accused, who are the aunts of Saddam
Hussain, disliked the marriage plans. On 18.08.2011, at about 9:00 A.M,
when the victim's mother had gone out, they came to the doorstep of the
victim's house and shouted at her about her relationship with Saddam
Hussain. They verbally abused her with sexually coloured remarks,
threatened her about the relationship, and specifically scolded her, saying
that she should commit suicide.
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4. Unable to bear how they scolded her, the girl ran inside the house,
poured kerosene, and set herself on fire. Later, others came to her rescue
and admitted her to the hospital. Based on her statement, a case was
registered as Crime No.733 of 2011, originally under Section 309 of the
Indian Penal Code, and investigations began. Subsequently, the victim died
of her burn injuries on 02.09.2011. The case was then altered to one under
Section 305 of the Indian Penal Code, and P.W.14 and thereafter, P.W.16
completed the investigation. P.W.16 filed the final report, which was taken
on file as P.R.C.No.36 of 2011 by the learned Judicial Magistrate No.VII,
Coimbatore. After the accused appeared, the case was committed and taken
on file by the Trial Court as S.C.No.28 of 2012.
5. Thereafter, summons were issued and the copies were furnished.
The Trial Court framed a charge under Section 305 of the Indian Penal Code
against both the accused. Upon being explained and questioned, the accused
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denied the charge and stood trial. The prosecution, to prove the charge,
examined one Abuthahir, the father of the victim child, as P.W.1, who
deposed as if the victim was studying in the IX standard and the boy's
parents and brother had come to their house demanding that his daughter be
given in marriage to the said Saddam Hussain. However, the accused did
not like the same and was enraged by the same; they came in front of his
house and abused the victim girl, and the girl committed suicide. One
Jennath Nisha, the mother of the victim child, was examined as P.W.2, who
also deposed to the same effect. One Panchavarnam, who is residing near
the house of the victim child and was the eye witness to the incident, was
examined as P.W.3. She categorically deposed about the appellants/accused
abusing the victim child with sexually coloured unparliamentary words and
admonishing the child for having a love affair with the said Saddam Hussain
and intending to get married to him and threatening the girl. The extremely
harsh words that are spoken and the threat that was made, even threatening
the victim child of disrobing her and causing injuries in her private parts,
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etc., are all deposed in detail by the said eyewitness. P.W.4, one Sait, is the
friend of P.W.1, who is a hearsay witness, who heard about the incident. One
Kaja was examined as P.W.5, who was also an eyewitness, who saw the
appellants/accused threatening and abusing the minor child.
6. Kaja Hussain was examined as P.W.6, who was also present during
the incident and spoke about the harsh language used by the appellants in
abusing the victim child. Saddam Hussain, who came to know about the
incident, who is the person said to have been in an affair with the victim's
child, was examined as P.W.7. One Murugan, who was the witness during
the inquest and who was present during the confession, was examined as
P.W.8. One Abthullah, who also witnessed the incident of the appellants
abusing the victim girl, was examined as P.W.9. The Headmaster of the
school in which the victim girl was studying and who produced the birth
details, was examined as P.W.10. The Doctor who treated the victim, who
spoke about the treatment and about the victim succumbing to the burn
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injuries, was examined as P.W.11. One Mahalingam, who registered as the
First Information Report, was examined as P.W.12. The Doctor who
conducted postmortem, was examined as P.W.13. One Samiyathal, who
initially continued the investigation, was examined as P.W.14. The learned
Magistrate, who witnessed recording of the Dying Declaration of the victim
was examined as P.W.15. One Karthikeyan, who completed the
investigation and laid the final report, was examined as P.W.16.
7. On behalf of the prosecution, the following documents were also
marked as Exs.P-1 to P-14:-
1 Ex.P-1 18.08.2011 Observation Mahazar
2 Ex.P-2 18.08.2011 Seizer Mahazar
3 Ex.P-3 03.09.2011 Signature in the confession statement
4 Ex.P-4 26.06.1996 Certificate
5 Ex.P-5 02.09.2011 Ellea Hospital Certificate
6 Ex.P-6 18.08.2011 Hospital Intimation
7 Ex.P-7 18.08.2011 Complainant
8 Ex.P-8 18.08.2011 FIR
9 Ex.P-9 02.09.2011 Postmortem Certificate
10 Ex.P-10 02.09.2011 Final Report
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11 Ex.P-11 18.08.2011 Rough Sketch
12 Ex.P-12 18.08.2011 Dying Declaration
13 Ex.P13 02.09.2011 Alteration Report
14 Ex.P14 02.09.2011 Inquest Report
The plastic can, used for storing kerosene, the school uniform, which
was partly burnt and the match box, were all collected and were collectively
marked as M.O.1.
8. Upon questioning the accused regarding the evidence presented by
the prosecution under Section 313 of the Code of Criminal Procedure, the
accused denied it as false. Thereafter, one Mathina was examined as D.W.1.
According to her, she also resides in the same vicinity, and no such incident
took place. It is her case that both the accused, the mother of the victim, and
herself are all in the same close-knit group, and if any incident had occurred,
it would have come to her notice. One Suthir Babu was examined as D.W.2,
who deposed that he also resides nearby. On the day of the occurrence, he
was at his house with his children and saw people talking in the victim's
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house. He stated that there was no quarrel at that time. It was also said that
the victim child was admonished by her mother, leading her to attempt to
commit suicide, and she was then taken in an auto to the hospital.
9. Thereafter, the Trial Court proceeded to hear the learned Additional
Public Prosecutor and the learned Counsel for the appellants/accused. The
Trial Court, upon considering the Dying Declaration, which was duly
recorded in the presence of P.W.15, and the direct evidence of P.W.3, P.W.5,
P.W.6, and P.W.9, and corroborated by P.W.1 and P.W.2, concluded that the
prosecution proved the incident beyond any reasonable doubt. Since very
harsh words were spoken, also sexually coloured words, implying the victim
child and her mother as sex workers and wielding grave threats in a manner
that encouraged the child to commit suicide immediately, the Trial Court
found that the charge under Section 305 of the Indian Penal Code was
established. Accordingly, the Court convicted the appellants/accused and
imposed a sentence of three years' rigorous imprisonment along with a fine
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of Rs.2,000/- each. Aggrieved by this judgment, the present Criminal
Appeal is filed.
10. Heard Mr.J.Franklin, learned Counsel for the appellants/accused,
and Ms.J.R.Archana, learned Government Advocate (Crl. Side), for the
respondent.
11. Mr.J.Franklin, the learned Counsel for the appellants/accused,
taking this Court through the evidence on record, would submit that the very
basis of the prosecution's case is inconsistent. He would argue that while the
victim's father states it was an arranged marriage, in the earliest version of
the First Information Report, the girl victim admitted to having had an affair.
Even assuming, for the sake of argument, that the incident occurred as the
prosecution claims, when the girl is only 15 years old and in X standard,
there is nothing inappropriate about the boy's aunts admonishing her to end
the affair.
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12. He would argue that when the child took the extreme step of
pouring kerosene on herself, it was in response to reasonable admonition
given by the boy's aunts. Considering the social background of all parties
involved, belonging to the lower social strata living in the vicinity where
relatives and neighbors actively care for one another and do not hesitate to
intervene in each other's affairs, the prosecution cannot suggest any intention
that the aunts spoke with the purpose of encouraging the girl to commit
suicide. This is especially relevant given that the girl was only 15 years old
and still in school. The accused are also women, an aspect that the Trial
Court did not consider. The learned counsel for the appellants further
submits that this Court should also consider the question of sentence. He
argues that the appellants are themselves in a precarious situation and are, at
best, victims of their social upbringing and circumstances, which the Court
should take into account in sentencing, a factor the Trial Court failed to do.
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13. Per contra, Ms.J.R.Archana, learned Government Advocate (Crl.
Side) for the respondent, submits that there is ample evidence on record, and
eyewitnesses reaffirmed their testimonies even during cross-examination
with reference to the incident. The words spoken by the appellants/accused
are explicitly mentioned both by the victim girl in the First Information
Report and in the Dying Declaration, as well as by the eyewitnesses. When
read collectively, even though there are minor contradictions regarding the
actual words spoken, they indicate two things: first, that the words are
unduly harsh and sexually coloured remarks, and second, that if spoken to
any young child around 15 years of age, they would cause significant
anxiety and sadness, potentially leading to an inclination to commit suicide.
14. She further submitted that, in addition, express words were also
spoken to encourage and direct the minor child to immediately go and die.
Therefore, there is a strong connection to the incident where the child
immediately ran inside the home, poured kerosene on herself, and
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committed suicide. The child’s age is also established by examining the
Headmaster of the School. Thus, all the elements for the offence under
Section 305 of the Indian Penal Code are proven beyond doubt by the
prosecution. Therefore, the Trial Court rightly convicted the accused and
imposed the sentence.
15. The learned Government Advocate (Crl. Side) would submit that it
is true that the accused who are facing the charge are also women folk, but
the sentence should be proportionate to the offence committed by them.
According to her, the Trial Court itself imposed only a lenient sentence of
three years.
16. After hearing the parties, this Court has also requested the learned
Government Advocate (Crl. Side) for the respondent to instruct the Inspector
of Police, Kuniamuthur Police Station, to conduct a field enquiry and record
details about the age, social status, and job details of the appellants and their
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husbands, as well as the current family status. This report is placed on
record and will be addressed by this Court at the appropriate stage.
17. I have examined the submissions from both sides and reviewed the
case records.
18. Firstly, in the instant case, the child's statement was recorded in
the presence of P.W.16, the learned Magistrate. It is clear that at the time of
providing information to the police and when the statement was recorded
before the learned Magistrate, the child was fully conscious and aware.
There is no doubt about the incident that occurred. The child explicitly
stated that she was in a relationship with the neighbor, Saddam Hussain, and
the boy's parents agreed to the marriage. In this context, if the
appellants/accused, who are the boy's aunts, even considering their social
status, opposed the marriage, they should have only admonished the boy and
his parents. Their conduct of going to the girl and admonishing her is
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inherently unacceptable, and the words spoken by the accused are
excessively harsh and extremely sexually charged, likely to drive any 15-
year-old child to suicide.
19. Further, the evidence also shows that they had indeed spoken such
words close to the time of the attempt, encouraging the child to die
immediately. Independent witnesses also saw and vividly explained the
incident. Considering that the area consists of people living in close
proximity, their presence is natural, especially when the appellants/accused
stood at the doorstep of the house and shouted at the victim. The evidence
of the eyewitnesses inspires confidence and is thoroughly believable. Since
the prosecution proved all elements of the offense under Section 305 of the
Indian Penal Code, namely, that just before pouring kerosene and setting
herself on fire, the appellants/accused scolded, threatened, and abused the
victim in a manner unbearable for any child of her age, and in a way that
prompted her to harm herself, I believe the conviction of the
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appellants/accused under Section 305 of the Indian Penal Code is justified.
Accordingly, I uphold the conviction of the appellants/accused.
20. Now, turning to the question of the sentence, it is true that the
offence under Section 305 of the Indian Penal Code is a heinous offence
punishable by death, life imprisonment, or imprisonment for a term not
exceeding 10 years, and with a fine. Section 305 of the Indian Penal Code is
provided below for easy reference:-
"305. Abetment of suicide of child or insane
person.—If any person under eighteen years of age, any
insane person, any delirious person, any idiot, or any
person in a state of intoxication, commits suicide, whoever
abets the commission of such suicide, shall be punished
with death or imprisonment for life, or imprisonment for a
term not exceeding ten years, and shall also be liable to
fine."
21. It is evident that the offence applies not only to individuals under
18 years old but also to insane persons, delirious persons, idiots, and those in
a state of intoxication. Therefore, considering the myriad circumstances
under which the offence may occur, the Court is endowed with a broad range
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of sentencing powers, from death to any term of imprisonment, and the
legislature, in its wisdom, has explicitly not set a minimum sentence.
22. At this juncture, it would be appropriate for the context to bear in
mind the Judgment of the Hon’ble Supreme Court of India in Shailesh
Jasvantbhai Vs. State of Gujarat , and paragraph 7 is extracted herunder :
7. The law regulates social interests, arbitrates
conflicting claims and demands. Security of persons and
property of the people is an essential function of the State.
It could be achieved through instrumentality of criminal
law. Undoubtedly, there is a cross-cultural conflict where
living law must find answer to the new challenges and the
courts are required to mould the sentencing system to meet
the challenges. The contagion of lawlessness would
undermine social order and lay it in ruins. Protection of
society and stamping out criminal proclivity must be the
object of law which must be achieved by imposing
appropriate sentence. Therefore, law as a cornerstone of
the edifice of “order” should meet the challenges
confronting the society. Friedman in his Law in Changing
Society stated that:“State of criminal law continues to be
—as it should be—a decisive reflection of social
consciousness of society.” Therefore, in operating the
sentencing system, law should adopt the corrective
machinery or deterrence based on factual matrix. By
deft modulation, sentencing process be stern where it
should be, and tempered with mercy where it warrants
to be. The facts and given circumstances in each case, the
(2006) 2 SCC 359
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nature of the crime, the manner in which it was planned
and committed, the motive for commission of the crime,
the conduct of the accused, the nature of weapons used
and all other attending circumstances are relevant facts
which would enter into the area of consideration."
(Emphasis supplied)
23. The first circumstance I consider is that both the appellants are the
aunts of P.W.7, Saddam Hussain, with whom the girl was said to have
developed an affair, and immediate steps were being taken for marriage.
The girl was 15 years old at the time of the incident. In fact, if the incident
occurred in 2012, the POCSO Act would have been in force by then, making
it an offence if there was a marriage and physical relationship. The
marriage, if celebrated, would have been a child marriage.
24. The second circumstance I am considering is the personal and
social status of the appellants. The first appellant, Kayar Nisha, is now 64
years old. She lost her husband. According to the current report of the
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Inspector of Police, Kuniamuthur Police Station, she is employed as a
domestic helper with a monthly salary of Rs.2,500/- and also receives
Rs.1,000/- in financial assistance from the Government of Tamil Nadu. She
has no children, and she is also unwell, suffering from high blood pressure.
The second accused, Rafia, is now 40 years old. Her first husband,
Bakruddin, died of cancer. She has since remarried Abdul Muthalif. She
earns daily wages. She had no children with her first husband and has
children with her second husband, a son named Jainab, who is about nine
years old, and a daughter who is about four years old. She is also eligible
for the government’s assistance of Rs.1,000/- per month.
25. Though I have considered the ill behaviour of the appellants,
admonishing the girl child instead of the boy, despite them being from the
boy’s family, I take this into account again as a mitigating factor for
imposing a lesser penalty. Their behaviour stems from internalised
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misogyny, which is a product of our male-dominated society (). They are
conditioned to question the female without realising they themselves are
victims of such a mindset. In doing so, they harmed a girl child and made
themselves liable for punishment.
26. This part of the area where the offence was committed, namely
Kuniamuthur, is part of South Coimbatore, a metropolitan area, and these
ordinary women, working as Domestic Helpers and Daily Wagers, are barely
recognised or known and it cannot be said that their shorter imprisonment
term will result in the erosion of the deterrent effect on the society. They
have shown remorse and are only eking out their livelihood in their
respective families and need not be committed again to Prison for
reformation. They faced legal proceedings and were imprisoned
immediately after arrest and sentencing. They remained in jail as remand
Internalised Misogyny, The Patriarchy Inside Our Heads- By Maria Evteeva, M.Sc.
University of the Balearic Islands, Spain
https://www.jiss.org/documents/volume_14/JIS%202024%2014(1)%2082-
108%20Internalized%20Misogyny.pdf
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prisoners for 61 days; after being convicted, the first appellant was jailed for
an additional 29 days, and the second appellant for 22 days. In total, the first
appellant served 90 days in prison, and the second appellant served 83 days.
Therefore, I believe the sentence should be modified to the period already
undergone. However, the appellant shall also continue to feel the pinch of
their action and it would be appropriate to increase the fine from Rs.2,000/-
to Rs.20,000/-. Only considering factors such as age, social status,
employment details, and the presence of children for one of the appellants,
and under these exceptional circumstances, the sentence has been modified
as described.
27. In the result, this Criminal Appeal is allowed on the following
terms-
(i) The conviction of the appellants/accused by the judgment of the
learned Sessions Judge, Magalir Neethimandram (Mahila Court),
Coimbatore, made in S.C.No.28 of 2012, vide the judgment dated
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21.07.2016, for an offence under Section 305 of the Indian Penal Code,
stands confirmed.
(ii) The sentence is modified to include Rigorous Imprisonment for
the period already served, and the fine amount is increased to Rs.20,000/-
each. The remaining fine of Rs.18,000/- each shall be paid by each of the
appellants/accused within four weeks from the date of receipt of a web copy
of this order. Failure to do so will result in each of them undergoing simple
imprisonment for two months.
02.07.2025
Neutral Citation : yes
grs
To
1. The Sessions Judge,
Magalir Neethimandram (Mahila Court),
Coimbatore.
2. The Inspector of Police,
B-14, Kuniamuthur Police Station,
Kuniamuthur, Coimbatore.
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3. The Public Prosecutor,
High Court of Madras.
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D.BHARATHA CHAKRAVARTHY, J.
grs
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02.07.2025
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