Bail Slip The Appellant/Sole Accused viz., Murali,S/o.Kandasamy was directed to be released on bail as per order of this Court dated.14.2.2003 and made in Crl.M.P.No.1456/2003 in Crl.A.No.252/2003 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 18.02.2010 CORAM THE HONOURABLE MS. JUSTICE R. MALA CRL.A.NO.252 OF 2003 Murali S/o. Kandasamy ..Appellant/Sole Accused Vs State, rep. by Assistant Commissioner, Law & Order, Adyar Range, Chennai. (Crime No.637/2000) (E.4 Police Station) ..Respondent/Complainant Prayer: Criminal appeal filed under Section 374 of Cr.P.C. against the judgment of conviction and sentence dated 24.1.2003 passed by the Mahalir Neethimandram at Chennai made in S.C.No.176 of 2002. For Appellant : Mr. A. Sasidharan For Respondent : Mr. I. Paul Noble Devakumar Govt. Advocate (Crl.Side) J U D G M E N T This criminal appeal has been arising out of the judgment of conviction and sentence passed by the learned Sessions Judge, Mahalir Neethimandram, Chennai on 24.1.2003 passed in S.C.No.176 of 2002 convicting this accused under Section 306 and 498-A IPC . In respect of Sec. 306 IPC, the accused was sentenced to undergo rigorous imrpsionment for a period of seven years and imposed a fine of Rs.1000/-, in default to undergo simple imprisonment for a period of two months and in respect of 498 A IPC he was sentenced to undergo rigorous imprisonment for a period of 2 years and imposed a fine of Rs.1,000/-, in default in payment, to undergo simple imprisonment for a period of 2 months. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution is as follows:- (a) P.W.2-Velayudham and P.W.4-Malliga are parents of deceased Karpagam. The marriage between Karpagam and accused was an arranged marriage and it was performed on 12.2.1999. At the time of marriage, Karpagam was offered 5 sovereigns of jewels and apart from that house hold articles were also presented by her parents. During 'Thalai Deepavali' one sovereign chain was given to Karpagam and ½ sovereign ring was given to the accused by the parents of the deceased. (b) The deceased Karpagam informed her mother-P.W.4 that the accused was in a habit of drinking and at the drunken stage , he used to beat her often. On 10.6.2000, when P.W.2 met her daughter in the press where she was working, she informed her mother that she was well and asked P.W.2 to send his son to her house. (c) The deceased Karpagam was suffering from skin disease. She was given treatment by her parents in her parental home for 2 months. After recovery from the skin disease, she was taken by the brother of the accused to her in-law's house. After 20 days, this incident has been taken place and the said Karpagam died in the house of the accused. (d) P.W.1- Madhan Raj, who is residing opposite to the accused house gave a complaint Ex.P.1 which was received by P.W.9 Devaraj. On receipt of Ex.P.1 – complaint, he registered a case in crime No.637 of 2000 under Section 174 IPC and prepared Ex.P.14 First Information Report. (e) P.W.11 Sukumar-Deputy Superintendent of Police has taken up the matter for investigation. He gone to the place of occurrence at 12.30 p.m. on 12.6.2000. He prepared observation mahazar- Ex.P.2 and rough sketch of the occurrence spot in the presence of P.W.3 -Vedagiri and Venkatagiri and seized material objects M.O.1 to M.O.8 under seizure Mahazar Ex.P.3. Then he sent requisition for conducting inquest over the incident. (f) P.W.7 Mohammed Ismail – Tahsildar, on receipt of the requisition sent by P.W.11 went to Royapettah Hospital and conducted the inquest in the presence of witnesses and Panchayatdar. He prepared inquest report Ex.P.7. During the inquest he examined P.W.4, accused and P.W.2 and recorded their statements and they were marked as Ex.P4, P.5 and P.6 respectively. He also sent the final report Ex.P.8. (g) P.W.11 gave requisition to Chief Metropolitan Magistrate to record the 164 statements of the witnesses P.W.2, P.W.4, P.W.5 and Ramesh. The learned Chief Metropolitan Magistrate directed XIV Metropolitan Magistrate to record the 161 statements of witnesses under proceedings Ex.P.9. In pursuance of that, he https://hcservices.ecourts.gov.in/hcservices/ examined P.W.2, P.W.4, P.W.5 and Ramesh and recorded their statements. (h) After conducting inquest, P.W.7 sent the body for autopsy. P.W.10 Dr. Ravindran has conducted the autopsy and gave Ex.P.15-post mortem certificate in which it is mentioned as follows: "Appearances found at the post-mortem of a well nourished female body. Extensive mixed burns seen all over the body from head to feet both in front and back. The charred skin has peeled off in all the areas exposing the underlying inflamed and hyperemic subcutaneous tissue. Heat laceration seen over both buttocks, perineum, external genitalia, back and inner aspect of both thighs, extent up to the cuticle is completely peeled off. Hair all over the body is completely singed. No other internal or bony injuries are seen any where in the body. Heart: Chamberes contained clotted blood. Lungs: Oedematous and cyanotic c/s intensely congested exudes copious blood started frothy fluid. Larynx and Trachea: contained soot particles Hyoid bone: Intact Stomach: Empty, No specific smell perceived. Mucosa-congested. Liver, spleen and kidney: c/s congested Bladder and Uterus: Empty Brain: Oedematous hyperemic Surface vessels full c/s shows numerous pedichiae Opinion as to cause of death:- (a) Reserved pending report of------------- (b) The deceased would appear to have died of shock due to extensive burns (Viscera preserved for chemical analysis)" and in fine the Doctor has opined that the deceased would appear to have died of shock due to extensive burns. (i) He also arrested the accused on 13.6.2000 at 13.15 hours and sent the accused for judicial custody. He concluded his investigation and filed charge sheet against this accused under Section 498 A and 306 IPC. 3. The learned Sessions Judge, Mahalir Neethimandram after following the formalities framed charges against the accused. The accused pleaded not guilty. On examining the prosecution witnesses and marking all the documents, the learned Sessions Judge has posed question to the accused against the incriminating evidence against him under Section 313 Cr.P.C. He denied the same. https://hcservices.ecourts.gov.in/hcservices/ 4. On considering the evidence of PW1 to PW11 and Ex.P1 to Ex.P16 and material objects M.O.1 to M.O.8, the learned Sessions Judge found the accused guilty under Section 498 A and 306 IPC and sentenced him as mentioned above. 5. Challenging the conviction and sentence passed by the trial court, the learned counsel appearing for the appellant would contend that ingredients of Section 306 is not made out. The trial court has committed error in convicting the accused under Section 306 IPC. 6. He further submits that since the deceased was suffering from skin disease and also she was taken treatment for skin disease which is said to be Leprosy , she was in dejected mood. Therefore she committed suicide. There is no evidence to show that the deceased was subjected to cruelty and harassment by the accused. Hence he prayed for acquittal of this accused from both the charges. 7. He further stated that the witnesses PW1 and PW6 who are the neighbours, who are the competent persons turned hostile. In EX.P8-final report given by P.W.7 also, it was not mentioned that she was subjected to cruelty. In that it was stated that the accused was in a habit of consuming alcohol regularly and in a drunken mood he used to beat the deceased. But in Ex.P.8, he has stated that there is no demand of dowry. So the learned counsel for the appellant prayed for acquittal and allowing of this appeal. 8. Per contra, the learned Government Advocate (Criminal Side) would submit that the evidence of PW2-father, PW4-mother PW5-Manickam, maternal uncle of deceased Karpagam has deposed that the accused is in a habit of consuming Alcohol and in drunken mood, he used to beat the deceased. So she was subjected to cruelty and unable to met out the cruelty, she gone to the extent of committing suicide. Hence the trial court after considering the evidence before it came to the correct conclusion that the accused is guilty under Section 306 and 498 A IPC. Hence he prayed for dismissal of this appeal. 9. Now the court has to decide whether the trial court was correct in holding that the accused is guilty under Section 306 IPC. It is pertinent to note even though to prove that P.Ws.1,2,4,5 and 6 were examined, Pws.1, 6 who are the third parties and independant witnesses turned hostile. Only the evidence of PW2-father, PW4-mother and PW5-maternal uncle alone are supporting the case of prosecution. 10. But PW2 in his evidence has stated as follows...."vjphpf;F Fog;gHf;fk; cz;L/ vd; kfspd; ,wg;gpw;F vjphp tPl;lhh; jhd; fhuzk; vd;W ehd; epidf;fpnwd;/".... PW4 Mallika in her chief examination has deposed that on saturday, she gone to her press where she was working. At https://hcservices.ecourts.gov.in/hcservices/ that time she has stated that her husband /accused who was in a drunken mood kicked her on her stomach . On Monday, she came to know that her daughter was dead with burn injuries. PW5- Manickam, maternal uncle of the deceased in his evidence has stated that the deceased was subjected to cruelty by her husband. PW6 in her evidence she was turned hostile. So the evidence of Pws.2, 4 and 5 is not sufficient to conclude that the accused is guilty under Section 306 IPC. 11. At this juncture, the learned counsel for the appellant would rely upon the decision reported in CDJ 2010 MCH page 1006, (G. Ravichandran Vs.The Inspector o Police, J4 Police Station, Chennai) in para 19, it is held as follows:- "19. It is the essence of the crime order of abetment of suicide that the abettor should be proved to have substantially assisted in the commission of the offence of suicide. Instigation, incitement, provocation, encouragement, insinuation which words cannote different meanings are some of the acts which may constitute as 'abetment' for commission of suicide. But, all such acts or any of them have to be positive and patent in nature of such a degree, that the direct result of such acts may be none other, but the commission of suicide. Stray domestic quarrels, perfunctory abuses by husband or in-laws to the deceased, crude and uncultured behaviour of the husband like drinking being mundane matters of normal occurrence, will not go to form and constitute "abetment" unless these acts of conduct singly or cumulatively are found to be of such formidable and compelling nature as may lead to the commission of offence." and submits that for abetment of suicide that the abettor should be proved to have substantially assisted in the commission of the offence of suicide. There must be instigation, incitement, provocation, encouragement, urge, insinuation of this person to commit suicide. 12. Here as per the evidence of PW2, PW4 and PW5 there is no evidence to show that the accused has urged the deceased or induced or incited her to commit suicide. In such circumstances, I am of the opinion, there is no evidence to show the accused was guilty under Section 306 IPC. Mere picking quarrel between husband and wife which leads to commit suicide will not amount to abetment of suicide. 13. Per contra, the learned counsel for the appellant would culled out a portion of evidence of PWs.2, 4 and 5 and submits that the deceased was suffering from skin disease. She was taking treatment from Dr. Krishnamoorthy who is an expert in skin disease, ie., Dermatologist. A suggestion was posed to them that her skin disease might be a leprosy . So she was in a dejected mood and the same has been admitted by PWs.2, 4 and 5. But admittedly she was suffering from skin disease and she has been https://hcservices.ecourts.gov.in/hcservices/ taking treatment for it. In such circumstances, I am of the view the ingredients of Section 306 IPC read with 107 IPC has not been made out and the same was not proved by the prosecution beyond reasonable doubt. Hence the accused is not guilty under Section 306 IPC. So the conviction under Section 306 is liable to be set aside. Hence the appellant is not found guilty under Section 306 IPC. 14. Now the court has to decide whether the trial court was correct in holding the accused is guilty under Section 498 A IPC . Even though the complainant -P.W.1 turned hostile, but the evidence of P.W.2, P.W.4 and P.W.5 has been corroborating with each other that the accused is a habitual drunkard. After taking alcohol, he used to beat and kick her wife. Being unable to met out the cruelty, she ended her life by committing suicide. Even though this court came to the conclusion that the ingredients of Section 306 IPC is not met out, but the evidence of P.Ws.2, 4 and 6 has proved that the deceased Karpagam was subjected to cruelty by her husband - accused. Hence I am of the view that the accused is guilty under Section 498-A IPC. The learned trial Judge after considering the same came to the correct conclusion that the accused is guilty under Section 498-A IPC. Hence I am of the view that the conviction under Section 498-A is liable to confirmed. The trial court has sentenced the accused to undergo 2 years rigorous imprisonment and imposed a fine of Rs.1000/-. The period of imprisonment sentenced by the trial court is reduced to 1 year and the fine amount imposed is hereby confirmed. 15. In fine, • the criminal appeal is partly allowed. • The conviction and sentence passed by the trial court under Section 306 IPC are set aside. • The fine amount paid under Section 306 IPC is ordered to be refunded. • The conviction for the offence under Section 498-A IPC is hereby confirmed and the sentence of imprisonment is reduced from 2 years rigorous imprisonment to one year rigorous imprisonment. The fine amount is confirmed. • The period of imprisonment already undergone by the appellant/accused shall be set off under Section 428 Cr.P.C. is ordered. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar msr To. 1. The XXIII Metropolitan Magistrate, Saidapet, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. -do- Through The Chief Metropolitan Magistrate, Egmore, Chennai - 8. 3. The Mahalir Neethimandram, Chennai. 4. The Superintendent, Central Prison, Vellore. 5. The Asst.Commissioner(law & order) Adyar Range, Chennai. 6. The Public Prosecutor, High Court, Chennai - 104. Crl.A.No.252 of 2003 GV(CO) EM/26.3.10 https://hcservices.ecourts.gov.in/hcservices/