B A I L S L I P The Appellant/Accused viz Ravichandran S/o Kuppusamy was directed to be released on bail as per the order of this Court dated 6.5.2003 and made in Crl.MP.No.4535/2003 in Criminal Appeal No.500/2003 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.500 of 2003 Ravichandran .. Appellant/Accused Vs. State rep. by Assistant Commissioner of Police, D-3 Ice House Police Station, (Crime No.70 of 1999), Chennai District. .. Respondent/Complainant Criminal Appeal filed under section 374 of the Criminal PC against the judgment dated 20.1.2003 in S.C.No.382 of 2000 on the file of the VI Additional Sessions Judge, Chennai. For appellant : Mr.R.John Sathyan For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment dated 20.1.2003 in S.C.No.382 of 2000 on the file of the VI Additional Sessions Judge, Chennai, whereby the appellant-accused was convicted for the offence under Section 306 IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for three months. The trial Court acquitted the appellant-accused of the charge under Section 498-A, IPC. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution is as follows: (a) The deceased Pramila is the daughter of P.W.5 Rajangam. Her sister is P.W.6 Sumathi. P.W.4 Kuppusamy is the father-in-law of the deceased Pramila and the father of the appellant-accused Ravichandran. (b) The marriage between the deceased and the accused was performed on 18.8.1996. They were blessed with a female child. The deceased committed suicide on 1/2.2.1999 at 2 a.m. (c) P.Ws.1 and 2 were residing in the ground-floor of the house, and the deceased and the accused were residing upstairs. On 1/2.2.1999 at about 2 a.m., P.Ws.1 and 2 heard the noise and they came to know that the deceased Pramila hanged herself. Immediately, she was taken to Royapettah Government Hospital. (d) P.W.1 gave a complaint Ex.P-1, which was received by P.W.9 Gurusamy, Inspector of Police and a case was registered in Cr.No.70 of 1999 under Section 174 Cr.P.C. Ex.P-4 is the FIR. (e) P.W.5, the father of the deceased deposed that at the time of the marriage between the deceased and the accused, she was given 30 sovereigns of jewels and vessles. After the marriage, the accused harassed the deceased. P.W.6 stated that the accused demanded Rs.1 lakh as loan for his business. The accused was doing furniture business. P.Ws.5 and 6 stated that the deceased committed suicide on the instigation of the accused. (f) Since the death was unnatural death, within seven years of their marriage, P.W.9 Inspector of Police sent the intimation to the Revenue authorities. P.W.8 Tahsildar, on 3.2.1999, went to the hospital and conducted inquest and issued Ex.P-3 inquest report. At that time, P.W.8 Tahsildar examined the witnesses, including the accused. (g) P.W.8 Tahsildar arranged for the post-mortem. P.W.7 Doctor, on the basis of the requisition, conducted autopsy on the dead body of the deceased and issued Ex.P-2 post-mortem certificate, in which it is stated as follows: "Appearances found at the post-mortem: of a well nourished female body. Intense bluish discolouration of finger and toe nails seen. 20 X 1.5-1 cms. Superficial, interrupted, incomplete, oblique abrasion (ligature mark) seen in front of the neck above the thyroid extending from the left to the right side of neck and situated 8 cms above the supra sternal notch, and 9 cms below the right mastoid. The left end of the mark is situated 2.5 cms below the middle of left mandible and the right end is situated on the right lateral aspect of the neck 9 cms below the right mastoid. The mark is absent on the back of the neck. O/D underlying tissues are parched in appearance. Few small intermittent areas of congestion seen along the margins of the ligature. The ribbon muscles of the neck are https://hcservices.ecourts.gov.in/hcservices/ intact. Hyoid, Larynx, Trachea and thyroid are intact. No other external, internal or bony injuries are seen anywhere in the body. Heart: Chambers contained clotted blood. Lungs: Oedematous and cyanotic. Multiple petichiae seen over the pleural surfaces. C/s intensely congested. Exudes copious frothy fluid. Larynx and trachea: Contained frothy fluid. Hyoid bone: Intact. Stomach: 300 gms of recognisable cooked food particles. No specific smell perceived. Mucosa-congested. Liver, Spleen and Kidneys: C/s. Congested. Bladder: Empty. Uterus: Bulky. Endometrical congestion seen. A 3cms. Long embryo is found attached to the right superior aspect of the uterine cavity. Brain: Hyperaemic. Surface vessels full. C/s shows numerous petichiae. Opinion as to cause of death: (a) Reserved pending report of .... (b) The deceased would appear to have died of "Asphysixa due to hanging". Additional evidence of poisoning to be ruled out by chemical analysis." (h) P.W.9 Inspector of Police went to the place of occurrence and prepared observation mahazar Ex.P-5 and drew rough sketch Ex.P- 6. He also seized M.O.1 saree used for hanging under Ex.P-7 mahazar. (i) After receiving a report from P.W.8 Tahsildar, P.W.9 Inspector of Police altered the offence in the crime number, into one under Section 306 IPC. The altered report is Ex.P-8. (j) P.W.10 Assistant Commissioner of Police took up the matter for further investigation and he verified the investigation done by P.W.9 Inspector of Police and concluded the investigation and filed the charge sheet against the appellant-accused for the offences under Sections 498-A and 306 IPC. 3. The trial Court, after following the formalities, framed necessary charges against the accused, to which he pleaded not guilty. After examination of the witnesses, the trial Court posed questions on the accused, under Section 313 Cr.P.C. by putting incriminating evidence against the accused, to which he denied. During the course of trial, P.Ws.1 to 10 were examined, Exs.P-1 to P-8 were marked and M.O.1 was produced. Upon perusing the oral and documentary evidence, the trial Court convicted and sentenced the accused as indicated above. As against the same, the present Criminal Appeal has been filed by the accused. 4. Challenging the conviction and sentence, learned counsel for the appellant-accused would contend that it is true that the marriage between the accused and the deceased was performed on https://hcservices.ecourts.gov.in/hcservices/ 18.8.1996 and she committed suicide on 1/2.2.1999 at 2 a.m. Even though charge has been levelled against the accused for the offence under Section 498-A IPC, he was not found guilty of the said offence and so, it is clear that the deceased was not subjected to any cruelty/harassment at the hands of the appellant-accused. Therefore, the accused is not guilty of the offence under Section 306 IPC. The ingredients of Section 306 IPC as well as Section 107 IPC are not made out. To substantiate the same, learned counsel for the appellant-accused relied upon the decision of the Supreme Court reported in 2007 (3) SCC (Cri) 701 (Kishori Lal Vs. State of M.P). 5. Per contra, learned Government Advocate (Criminal Side) appearing for the respondent-Police culled out the portion of evidence of P.W.5, the father of the deceased and the evidence of P.W.6, the sister of the deceased and submitted that their evidence prove that the accused ill-treated the deceased and hence, she committed suicide. The trial Court has considered the same and came to the correct conclusion. Hence, learned Government Advocate prayed for dismissal of the Criminal Appeal. 6. P.W.4, who is none other than the father of the accused and P.Ws.1 to 3 who were residing in the same house where the accused and the deceased were residing, have deposed that the deceased Pramila put up a separate residence and they were residing with their child. P.W.4, the father of the accused was residing separately. P.W.3 in his evidence has stated that at 4 a.m., he came to know of the death of the deceased and so, his evidence is not helpful. P.Ws.1 and 2 who were residing in the downstairs of the house, stated that it was the usual practice for the accused to consume alcohol and in an inebriated mood, may enter into the house late night and pick up quarrel with his wife, the deceased. On the fateful day also, P.Ws.1 and 2, heard the noise of the husband and wife quarreling with each other, and subsequently, they came to know that the deceased committed suicide. Then, P.W.1 went to the Police Station and preferred the complaint Ex.P-1. 7. While considering the entire evidence, it is seen that there is no evidence to show that the accused instigated or urged or provoked the deceased to commit suicide. The vital witnesses relied on by the learned Government Advocate, is P.W.6, the sister of the deceased and P.W.5, father of the deceased. At this juncture, learned appellant's Advocate would cull out the portion of the evidence of P.W.6 and submit that the deceased herself was in the habit of suspecting the character of her husband, the accused, which is evident from the version of P.W.6, who has stated as follows in her cross examination: @///// vjphpapd; kPJ vd; rnfhjhp mof;fo re;njfg;gLths; vd;gij mts; vd;dplk; brhy;yp ,Uf;fpwhs;/ mjd; fhuzkhf vjphpf;Fk; vdJ j';iff;Fk; https://hcservices.ecourts.gov.in/hcservices/ rz;il Vw;gl tha;g;g[z;L/ vjphp ntW xU bgz;zplk; bjhlh;g[ itj;jpUe;jhh; vd;gJk;. mij fhuzk; fhl;o vd; rnfhjhp Vw;fdnt jw;bfhiy Kaw;rpf;F Kad;whh; vd;W brhd;dhy; vdf;F mJ gw;wp bjhpahJ/ vjphpa[ld; nfhgpj;Jf; bfhz;L mof;fo vd; rnfhjhp vd; tPl;ow;Fk;. vd; jfg;gdhh; tPl;ow;Fk; mof;fo tUthh; ////@ 8. From the evidence of P.W.6, it is clear that the deceased suspected the character of her husband, the accused and she picked up quarrel with him and she went to the extent of leaving the matrimonial home and staying in the parental home. 9. In this regard, it is appropriate to consider Section 107 IPC, which reads as follows: "Section 107 IPC: 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. Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." 10. In the decision relied on by the learned counsel for the appellant-accused, reported in 2007 (3) SCC (Cri) 701 (Kishori Lal Vs. State of M.P), it was held by the Supreme Court as follows: "6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as https://hcservices.ecourts.gov.in/hcservices/ provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence of the abetment of which a person is charged with the abetment is normally linked with the proved offence. 7. In case of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. (See Mahendra Singh v. State of M.P (1995 Supp (3) SCC 731 : 1995 SCC (Cri) 1157 : 1995 AIR SCW 4570). Merely on the allegation of harassment conviction in terms of Section 306 IPC is not sustainable. ...." 11. Furthermore, in the decision reported in 2007 Cri.L.J. 3420 (Bhagwan Das Vs. Kartar Singh), the Supreme Court held as follows: "15. ..... It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC. 16. However, in our opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide. Hence, we agree with the view taken by the High Court. .... ". 12. Thus, it is clear that there must be an instigation by a person to abet a crime. In the present case, while considering the evidence of P.W.5, the father of the deceased and P.W.6, the sister of the deceased, it is seen that they were not at the house of the deceased at the time of the incident. As per the evidence of P.W.6, the deceased Pramila picked up quarrel with the accused and suspected his character and left the matrimonial home. In such circumstances, there is no evidence before Court to show that the accused instigated or provoked or incited or urged or brought about persuasion to commit the suicide. 13. So, the abovesaid decisions of the Supreme Court squarely apply to the facts of the present case. Learned counsel for the appellant-accused submitted that the fact that the accused-husband treated the deceased-wife with cruelty, is not enough for the allegation of harassment and hence, the conviction in terms of Section 306 IPC, is not sustainable. https://hcservices.ecourts.gov.in/hcservices/ 14. The trial Court did not find the appellant-accused guilty of the offence under Section 498-A IPC. In such circumstances, it is unsafe to conclude that the appellant-accused is guilty of the offence under Section 306 IPC. In view of the dictum laid down by the Supreme Court in the abovesaid decisions, I am of the view that the appellant-accused is also not guilty of the offence under Section 306 IPC. The trial Court committed error in coming to the conclusion that the appellant-accused is guilty of the offence under Section 306 IPC. The appellant-accused is entitled for acquittal. 15. In the result, (a) the Criminal Appeal is allowed. (b) The conviction and sentence imposed on the appellant- accused are set aside. (c) The bail bond if any, executed by the appellant-accused shall stand cancelled. (d) The fine amount, if paid by the appellant-accused, shall be refunded. cs Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The 6th Additional Sessions Judge, Chennai. 2. Do through the Principal Sessions Judge, Chennai. 3. The XIII Metropolitan Magistrate, Chennai. 4. The Chief Metropolitan Magistrate, Egmore, Chennai 5. The Superintendent, Central Prison, Chennai. 6. The Assistant Commissioner of Police, D-3 Ice House Police Station, Chennai District. 7. The Public Prosecutor, High Court, Madras. PKB(CO) SR/25.2.2010 Crl.A.No.500 of 2003 https://hcservices.ecourts.gov.in/hcservices/