BAIL SLIP --- That the Appellant/Accused No.1 Viz., Srinath Prasad, S/o.R.V.M.K.Prasad was directed to be released on bail as per order dated 6.4.04 made in Crl.M.P.No.2748/04 in Crl.A.No.60/04 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.08.2010 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA CRL.A.No.60 of 2004 Srinath Prasad .. Appellant/Accused No.1 Vs. State by Inspector of Police, J-6, Thiruvanmiyur Police Station, Thiruvanmiyur, Chennai – 600 041. (Crime No.135/2000) .. Respondent/Complainant Prayer : Appeal filed under section 374 (2) Cr.P.C., against the judgment dated 19.01.2004 passed by the learned Sessions Judge, Mahalir Neethi Mandram (Mahila Court), Chennai, in S.C.No.214 of 2001. For Appellant : Mr.N.R.Elango, Senior Counsel for Mr.N.Srinivasan For Respondent : Mr.J.C.Durairaj, Govt. Advocate [Crl. Side] JUDGMENT The challenge in this appeal is to the judgment dated 19.01.2004 passed by the learned Sessions Judge, Magalir Neethimandram (Mahila Court), Chennai, made in S.C.No.214 of 2001 convicting the appellant, who has been arrayed as A1 for the offence under Section 498-A IPC and under Section 306 IPC and sentencing him to undergo a period of 10 years rigorous imprisonment and to pay a fine of Rs.2,00,000/-, in default, to undergo simple imprisonment for two years for the offence under Section 306 IPC. The learned trial Judge has not imposed any separate sentence for the offence under Section 498-A IPC as it is https://hcservices.ecourts.gov.in/hcservices/ covered under Section 306 IPC also. 2. There are three accused in this case, viz., A1 to A3 and the learned trial Judge disbelieving the prosecution case, acquitted A2 and A3 and convicted only A1/the appellant herein as stated above. 3. The background facts of the case in a nutshell are hereunder : (i) A1 is the husband of the victim/Kumudini. P.W.1 is the father of the deceased. P.W.2 is the mother of the deceased. P.W.3 is a family friend of P.W.1. (ii) A1 and the deceased got married in the year 1993. At the time of marriage, the parents of the deceased have given Rs.50,00,000/- apart from gold and silver articles. Out of their wedlock, they have blessed with two children, viz., two sons. After the marriage both the deceased and A1 lived at New York. A1 was doing business of export of cotton and linen at New York and he was running the company under the name and style as "Hill Crest International". The deceased and A1 were leading a happy married life till the year 1998. Trouble started at the end of 1998 and the relationship between A1 and the deceased has been strained as the deceased suspected that A1 was having intimacy with one Tanya Kapoor. The said person was supplying goods to the company of A1. The deceased suspected that A1 suffered loss in the business. A1 is alleged to have demanded one million dollars apart from demanding four million dollars as a loan from the deceased. P.W.1 has not accepted the said demand. P.W.1 verified through Sniff Capital and Marketing Company about the financial condition of A1's company. The report revealed that A1's company was financially in a bad shape. Therefore, P.W.1 refused to make arrangement for the loan to A1. (iii) During April, 1999, the deceased came to India from U.S.A. with her husband A1. P.W.1 showed the report about the financial position of A1's company to the deceased as well as A1. After a week, A1 left again for U.S.A. leaving the deceased in India. (iv) In the month of June 1999, the deceased joined A1 in U.S.A.. Thereafter, the deceased informed P.W.1 that she had seen the belongings of Tanya Kapoor in A1's apartment. A1 is said to have humiliated and threatened to kill the deceased. The deceased made an attempt to commit suicide and she was admitted in the hospital at U.S.A. After treatment she was discharged from the hospital. (v) A3 advised the deceased to come to India in the month of September, 1999 saying that separation may strengthen the relationship between the husband and wife. The deceased came to India leaving her two sons at U.S.A. Again, she went back to U.S.A. in the month of November 1999. There was no change in the conduct of A1. During the month of December 1999, the deceased came back to India along with her children and mother-in-law/A3. She was residing https://hcservices.ecourts.gov.in/hcservices/ with her in-laws at Adyar. Thereafter, A1 instructed the deceased over the phone to leave from his parents' house. A2 abused the deceased by calling her "bitch". The creditors have also started to give trouble. The deceased has decided to leave the matrimonial house. P.W.1 purchased a house at Thiruvanmiyur, Chennai, for the deceased. Thereafter, the deceased was living with her children at Thiruvanmiyur. The deceased also joined in a job at Satyam Computers. (vi) On 12.10.2000, A1 came to India from U.S.A., but not met the deceased. The deceased celebrated the birthday of her elder son on 20.10.2000. A1 to A3 attended the birthday function, but A1 did not speak with the deceased. The deceased told about the unpleasant happenings during the birthday celebrations to her parents over the phone on 20.10.2000. On 21.10.2000, P.W.1 came to Chennai along with his son and stayed along with the deceased. (vii) On 23.10.2000, A3 came to the house of the deceased and informed that A1 is not willing to take back the deceased. A3 further informed that A1 is inclined to marry Tanya Kapoor as she was willing to invest money in the business of A1. The deceased was upset and she was weeping. (viii) On 24.10.2000, the deceased informed P.W.1 that she was going to her office and she had also taken her children along with her. The deceased informed P.W.1 that she would join for the lunch. (ix) The deceased left for office in her car driven by the Driver, P.W.5. The deceased asked P.W.5 to go to her in-laws house and she left her two children with the Gardener of her in-laws house. She has also given a cover, Ex.P.1 to her eldest son. Ex.P.1 cover contained the letters, Exs.P.2, 3 and 4, which are the letters addressed by the deceased to A1, P.Ws.1 and 2 and A2 and A3 respectively. Thereafter, she has asked P.W.5 to go to her friend P.W.11's house. (x) The deceased went to the house of P.Ws.11 and 7, who are the family friends. There, she handed over the letter, Ex.P.5 to P.W.11 saying that she had consumed poison. Immediately, P.W.7 admitted the deceased at Apollo Hospital. (xi) The Doctor, P.W.8, examined the deceased and found her unconscious and she was also suffering from fits. Ex.P.23 is the Accident Register copy. Ex.P.24, the report of the Forensic Science Department, discloses that the deceased consumed organo-chlorinated pesticide. She was given treatment in the hospital. (xii) On 24.10.2000, P.W.1 received a phone call at 10.30 a.m. from P.W.11 stating that the deceased was admitted at Apollo Hospital as she has consumed poison. P.W.1 rushed to the hospital. At that https://hcservices.ecourts.gov.in/hcservices/ time, A1's driver came and delivered a cover to P.W.1. As P.W.1 was rushing to the hospital, he has not opened the cover, Ex.P.1, and later opened the cover, Ex.P.1, and found Exs.P.2, 3, 4 and 5. Ex.P.2 is the letter written by the deceased to A1 ; Ex.P.3 is the letter written by the deceased to P.Ws.1 and 2/her parents ; Ex.P.4 is the letter written by the deceased to A2 and A3 and Ex.P.5 is the note written by the deceased to P.W.11. On reaching the hospital, P.W.1 found the deceased was in a state of coma. (xiii) P.W.1 went to Thiruvanmiyur Police Station and gave the report, Ex.P.6 to P.W.12, Inspector of Police, on 24.10.2000 at 11.30 p.m. P.W.12 registered the case in Crime No.1335 of 2000 for the offence under Section 498-A IPC. Ex.P.26 is the First Information Report. He has sent the First Information Report to the magistrate's Court and to the higher police officials. (xiv) P.W.12 examined P.W.1, 11, 7, 8 and others. He went to the house of the deceased and prepared the Observation Mahazar, Ex.P.27 and Rough Sketch, Ex.P.28. On 29.10.2000 at 9.00 p.m. P.W.12 has received the death intimation from the Apollo Hospital stating that the deceased died. Ex.P.29 is the Death Intimation. P.W.12 gave a requisition/Ex.P.30 to the Magistrate to add the offence under Section 306 IPC. He went to the hospital and held inquest on the dead body of the deceased on 30.10.2000. Ex.P.31 is the inquest report. Thereafter, he has sent the body for post-mortem. (xv) The Doctor, P.W.6, attached to the Government Hospital, Royapettah, conducted post-mortem on 30.10.2000 at 8.15 a.m. The Doctor found the following injuries : (1)Jugular puncture marks seen over the right side of neck. (2)Pressure abrasion seen over the left side midback. (3)No other external or internal injuries are seen anywhere in the body. ..... Stomach : Contained 20 ml of blackish fluid. No specific smell perceived. .... Visceral preserved for Chemical analysis report. Ex.P.21 is the post-mortem Certificate. The Doctor, P.W.6, is of the opinion that the deceased died of "Pesticide Poisoning" (Endosulphan). (xvi) P.W.12, in continuation of his investigation, examined P.Ws.1, 2, 5 and others on 30.10.2000. P.W.1 produced Exs.P.10 to P.17 documents relating to the financial position of A1's company, property documents and the appointment order of the deceased. On 14.11.2000, P.W.1 produced four letters, Exs.P.2 to P.5 and Diary, Ex.P.7 and cover, Ex.P.1. P.W.12 received the final opinion of the Doctor. After receipt of the post-mortem certificate, Ex.P.21, Forensic Science Department Report, Ex.P.22, Accident Register copy, https://hcservices.ecourts.gov.in/hcservices/ Ex.P.23, Chemical Analysis Report, Ex.P.24, and on completion of investigation, has laid the charge sheet against the accused for the offence under Sections 498-A IPC and under Section 306 IPC. 4. The prosecution, in order to bring home the charges levelled against the accused, examined P.Ws.1 to 12 and filed Exs.P.1 to P.31. 5. When the accused were questioned under Section 313 Cr.P.C., they have come forward with the version of total denial and they have stated that they have been falsely implicated in this case. They have also filed written statements. A1 filed nine documents including the documents relating to the treatment given to the deceased for depression and the income tax returns of his company. D.W.1, a Psychiatrist, has been examined by the defence. 6.1. Mr.N.R.Elango, learned Senior Counsel appearing for the appellant, while assailing the impugned judgment of conviction, would vehemently contend that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence and put forward the following contentions:- (i) P.Ws.1 and 2 have implicated the accused for the allegation of cruel treatment and demand of the amount for his business only on the basis of the information said to have been furnished by the deceased and as such, their evidence is unreliable. (ii) Exs.P.2, 3 and 4, the letters, said to have been written by the deceased to A1, P.Ws.1 and 2 and A1 and A2, are inadmissible as the same are not related to the cause of commission of suicide by the deceased as per Section 32(1) of the Indian Evidence Act. (iii) Even assuming that the letters, Exs.P.2, 3 and 4 are admissible in evidence, the letters do not contain the incriminating materials against the accused constituting the offence under Section 306 IPC or the offence under Section 498-A IPC and on the other hand, the letters demonstrated the mental condition and depression of the deceased. (iv) A reading of Ex.P.3 addressed by the deceased to her parents, P.Ws.1 and 2, discloses that she has not made any complaint against A1, A2 and A3 and the said letter discloses that the deceased was suffering from depression and frustration and in the letter she has expressed her desire not to live any more. (v) A reading of Ex.P.4, the letter written by the deceased to A2 and A3, also reveals that the deceased has expressed her desire of not to live any more and she has thrown a bald and vague blame on A1 and also expressed her deep love for A1. https://hcservices.ecourts.gov.in/hcservices/ (vi) Ex.D.1, the letter, written by the deceased to her parents, P.Ws.1 and 2, reveals that she had conveyed that she was hurt by everyone including the parents and she had blamed everyone of them and the said letter shows the extreme depression suffered by the deceased. (vii) The evidence of P.W.7, a family friend of A1 and the deceased, discloses that the deceased had suffered depression and also underwent treatment at U.S.A. as well as in India. P.W.7 has also admitted in his cross-examination that he had seen the deceased frequently in a depressed-mood and further admitted that she had told him that she was having suicidal tendency. (viii) P.W.11, wife of P.W.7, has also corroborated the version of P.W.7. Though P.W.11 has been treated as hostile, her evidence cannot be rejected in toto. P.W.11 has categorically admitted in her cross-examination that the deceased told her that she was taking treatment for depression. (ix) The prosecution has not produced any incriminating materials to establish that A1 was having intimacy with one Tanya Kapoor. (x) A1 has produced the income tax documents during his examination under Section 313 Cr.P.C. and the said documents would reveal that he has not suffered any loss in his business. (xi) The deceased, even as per the admitted case of the prosecution, lived together with A1, mostly, at U.S.A. and even in India she had stayed, mostly, in her in-laws place except staying in an apartment for a short period with her children and as such, it cannot be stated that she had been subjected to cruel treatment by A1 to A3. (xii) The children of the deceased are also all along lived together with their parents, viz., A1 and the deceased, and even now they are in the custody of A1 as per the orders passed by the Hon'ble Supreme Court in S.L.P.(Civil) Nos.5597 & 5598 of 2005 on the basis of the understanding arrived at between A1 and P.Ws.1 and 2. 6.2. The learned Senior Counsel also placed reliance on the following decisions in support of his contentions : (1)Mahendra Singh V. State of M.P. reported in 1995 SCC (Cri.) 1157 ; (2)Sohan Raj Sharma V. State of Haryana reported in (2008) 11 SCC 215 ; (3)Sharad Birdhichand Sarda V. State of Maharashtra reported in AIR 1984 SC 1622; and https://hcservices.ecourts.gov.in/hcservices/ (4)Bhairon Singh V. State of M.P. reported in AIR 2009 SC 2603 ; 7. Per contra, Mr.J.C.Durairaj, learned Government Advocate [Crl. Side] would submit that the prosecution has proved its case by adducing clear and cogent evidence through P.Ws.1 and 2. It is contended that the evidence of P.Ws.1 and 2 coupled with the letters written by the deceased, Exs.P.2, 3 and 4 establishes the alleged cruel treatment caused to the deceased by A1. It is further contended that only due to the cruel treatment, the deceased has been driven to take the extreme step of committing suicide. It is pointed out that A1 was neglecting the deceased all along and even on the birthday celebrations of their son, though A1 attended the birthday celebrations, did not speak with the deceased. The learned Government Advocate (Crl. Side) would submit that though the deceased expressed her continuous love to A1, in Ex.P.2 she has clearly expressed the cruelty caused to her by the conduct of A1 deserting her having stated that A1 has ruined her life. It is further pointed out by the learned Government Advocate (Crl. Side) that the deceased blamed A1 for all her suffering even in her letter, Ex.P.4, written to A2 and A3/parents of A1. Therefore, it is contended that the prosecution has proved its case beyond reasonable doubt against A1. 8. I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the evidence adduced by the prosecution and other materials available on record. 9. This is a very unfortunate and pathetic case, wherein, the deceased, a young house wife only aged about 29 years and blessed with two loving children has taken the extreme step of putting an end to her life by committing suicide by consuming poison. In a case of this nature, the evidence available on record is to be analysed, assessed, sifted and tested like any other evidence without being swayed by emotions. 10. The prosecution heavily placed reliance on the letters, Exs.P.2 to P.4 said to have been written by the deceased, viz., Ex.P.2, the letter written by the deceased to A1 ; Ex.P.3, the letter written by the deceased to her parents, P.Ws.1 and 2 ; and Ex.P.4, the letter written by the deceased to A2 and A3, who are the parents of A1. 11. At the outset, it is to be stated that apart from the above said letters, the prosecution has placed reliance on the evidence of P.Ws.1 and 2, who are the father and mother of the deceased in this case and their version is exclusively based on the information said to have been furnished by the deceased over the phone from U.S.A. as https://hcservices.ecourts.gov.in/hcservices/ well as in person. Therefore, it is crystal clear that P.Ws.1 and 2 have no personal knowledge about the so-called allegation of cruelty said to have been made by A1 to the deceased. 12. The sheet-anchor of the contention of the learned Senior Counsel for the appellant is that the statements said to have been made by the deceased to P.Ws.1 and 2 and the statement made in Exs.P.2 to P.4 are inadmissible and the provision under Section 32(1) of the Indian Evidence Act is not attracted to the facts of the case. 13. Now let me consider the reliability and admissibility of the letters said to have been written by the deceased under Exs.P.2 to P.4. It is pertinent to note that P.W.1 has stated in his evidence that he has received a cover sent by A1, through his driver, and he has opened it subsequently and found in Ex.P.1, cover, the letters, Exs.P.2 to P.4. P.W.1 confirmed that the said letters are in the handwriting of his daughter/the deceased. 14. At this juncture, it is relevant to refer the provision under Section 32 (1) of the Indian Evidence Act which reads hereunder : 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant – Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases : (1) When it relates to cause of death – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 15. It is also relevant to refer to the decision of the Hon'ble Apex Court in Sharad Birdhichand Sarda V. State of Maharashtra reported in 1984 SCC (Cri.) 487, in which it was held as hereunder : "Section 32(1) is not confined to homicide alone but includes suicide also. Hence all the circumstances which https://hcservices.ecourts.gov.in/hcservices/ may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide." 16. Regarding the phrase "circumstances of the transaction" in Section 32(1), the Hon'ble Apex Court in the same decision held as hereunder : "The phrase "circumstances of the transaction" in Section 32(1) is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". If the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. But the necessary condition of admissibility under the section is that the circumstances must have some proximate relation to the actual occurrence. However, the test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case." The Hon'ble Apex Court in the decision cited supra held that Section 32(1) of the Indian Evidence Act is not only confined to homicide but also includes suicide. 17. A reading of the provision under Section 32(1) of the Indian Evidence Act coupled with the principle laid down by the Hon'ble Apex Court in the decision cited supra makes it abundantly clear that the letters written by the deceased, Exs.P.2 to P.4 relating to the cause of the death exhibiting the circumstances leading to the death would fall within the four corners of Section 32(1) of the Indian Evidence Act and therefore admissible. 18. As far as the case on hand is concerned, it is already pointed out, the prosecution case rests on the letters, Exs.P.2 to P.4 written by the deceased to A1, P.Ws.1 and 2, A2 and A3 respectively. A reading of the said letters, Exs.P.2 to P.4 reveals that the deceased was in a confused state of mind. The said letters discloses her love, emotion, anxiety, frustration and depression. It is also pertinent to note that the letters, Exs.P.2 to P.4 have been put in the cover, Ex.P.1, and the same was given by the deceased to her eldest son on the date of the deceased consuming poison, i.e., on 24.10.2000 while she left the two children in the house of A2 and A3 and thereafter, proceeded to her friend's house, P.Ws.7 and 11, and on reaching their house, she handed over the note, Ex.P.5 to P.W.11 stating that she had consumed poison and thereafter, P.W.11 and her https://hcservices.ecourts.gov.in/hcservices/ husband P.W.7 admitted her into the Apollo Hospital. Considering the fact that the deceased handed over the said letters just before consuming poison and also considering the expression of love, emotion, anxiety, frustration and depression in those letters, this Court has no hesitation to hold that the said letters are considered to be the cause and circumstances which resulted in her death and as such, Section 32(1) is attracted. 19. However, the core question involved in this case is that whether the contents of those letters disclose the ingredients of the offence under Section 306 IPC against the appellant ? 20.0. Now let me analyse and assess the contents of the letters, Exs.P.2 to P.4 as hereunder : 20.1. Ex.P.2 is the letter written by the deceased to A1. A reading of the said letter reveals that the deceased expressed her deep love to A1 in the said letter and it further reveals that A1 was also in deep love with the deceased and there is no expression of putting an end to her life. It is relevant to refer few portions of the said letter as hereunder : "I use to call you from booths and hand up just to hear your voice. I really miss you bujji and all I wanted was just one last chance for us to be a family again, I want joy and near to grow up with both of us. ..... What did I really do, all I was, was a little immature & now you use this