BAIL SLIP --- The Appellant/Accused viz.,Selvaguru was directed to be released on bail as per the order of this Court dated 11.8.2006 in Crl.M.P.No.1 of 2006 in Crl.A.No.618/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.07.2010 CORAM: THE HONOURABLE MR. JUSTICE K.N. BASHA Criminal Appeal No.618 of 2006 Selvaguru .. Appellant/Accused Vs. State rep. by Assistant Commissioner of Police, N3 Muthialpet Police Station, Chennai Crime No.232 of 2005 .. Respondent/Complainant Prayer : Appeal filed under Section 374 (2) Cr.P.C. against the judgment of the learned Sessions Judge, Mahila Court, Magalir Neethimandram, Chennai, in S.C.No.618 of 2005 dated 13.07.2006. For Appellant : Mr.S.Ashok Kumar, Senior Counsel for M/s.R.Rajasekaran For Respondent : Mr.J.C.Durairaj Govt. Advocate (Crl.Side) JUDGMENT The appellant, who is the sole accused, has come forward with this appeal challenging the conviction and sentence imposed on him by the learned Sessions Judge, Mahila Court, Chennai, by the judgment dated 13.07.2006 made in S.C.No.618 of 2005 convicting the appellant for the offence under Section 498-A IPC and sentencing him to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo three months rigorous imprisonment and also convicting him under Section 306 IPC and sentencing him to undergo seven years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo three months rigorous imprisonment. The accused/appellant was also charged for the offence under Section 304B IPC, but the learned trial Judge has acquitted the accused against the said charge. https://hcservices.ecourts.gov.in/hcservices/ 2. The background facts of the case are hereunder : (i) The accused and the deceased, Jayageetha, got married on 21.08.2002. P.Ws.1, 5 and 6 are the brothers of the deceased and P.W.3 is the mother of the deceased. The father of the deceased is no more. At the time of marriage, the deceased was given 17 sovereign of jewels and other household articles. After the marriage, the accused and the deceased were living at Saidapet, Chennai, and thereafter, they were residing at Maliappa Street at Broadway, Chennai. The accused in order to look after his business shifted his residence to Saiva Muthaiyamudali Street, Chennai. Out of their wedlock, one male child was born. The brother of the accused one Anand was residing permanently along with the accused. (ii) In the year 2005, for the Pongal festival, the accused went to his parents house at Kattumannarkoil along with the deceased. After the Pongal, the deceased alone came to her parental house at Nattarmangalam. At that time, an injury was found on her hand. On enquiry, she has informed that her husband demanded a sum of Rs.2,00,000/- and a vehicle and treated her cruelly by beating her. The deceased was residing for a week in her parental house. Thereafter, brother of the deceased one Selvaganapathy has taken the deceased to her matrimonial house. The parents of the accused ill- treated them. While the deceased asked for her child, parents of the accused refused to give the child to her. On the next day, the deceased returned to her parental house and informed them that her husband abused her with dire consequences saying that he would cut her hand if she demands the child. Thereafter, she was residing for 1 1/2 months in her parental house. (iii) The accused contacted P.W.6, brother of the deceased, over the phone and asked him to bring the victim to his house and when P.W.6 asked about the money demanded by him, the accused informed that the same can be looked into afterwards. The accused has also spoken to the deceased over the phone. Thereafter, P.W.6 took the deceased to the house of the accused and left her there. The accused called P.W.1 over the phone thrice and demanded Rs.2,00,000/- for his business and a vehicle and P.W.1 asked him to wait patiently. (iv) On 09.05.2005 at 5.45 a.m., the accused informed P.W.6 over the phone that the deceased committed suicide. P.W.6 informed his brother P.W.5. Thereafter, P.Ws.1, 3, 5, 6 and other relatives left for Chennai and went to Muthialpet Police Station, Chennai, at 11.30 a.m. on the same day and gave the report, Ex.P.1 to P.W.8, Inspector of Police. (v) P.W.8, Inspector of Police, registered the case in Crime No.232 of 2005 for the offence under Section 174 Cr.P.C. Ex.P.13 is the First Information Report. As the death of the deceased was https://hcservices.ecourts.gov.in/hcservices/ unnatural and within seven years from the date of marriage, he has sent message to the Assistant Commissioner of Police, P.W.9. (vi) P.W.9, Assistant Commissioner of Police, Harbour, took up investigation. He has sent a requisition, Ex.P.8, to the Personal Assistant to the District Collector, for conducting inquest. (vii) P.W.7, Tahsildar, attached to the District Collector's Office, Chennai, received the requisition, Ex.P.8, and held inquest on 09.05.2005 from 4.30 p.m. to 10.00 a.m. on 10.05.2005 at the Government Stanley Hospital. He examined P.Ws.1, 3, 5 and 6. Ex.P.9 is the inquest report. Ex.P.5 is the statement recorded from P.W.3, Mother of the deceased. Ex.P.2 is the joint statement given by the brothers of the deceased. Ex.P.10 is the statement given by the accused. Thereafter, P.W.7 sent the body for post-mortem. (viii) The Doctor, P.W.4, conducted post-mortem on the dead body of the deceased on 10.05.2005 at 11.15 a.m. He found the following injuries : "An oblique incomplete brown ligature mark seen on front and sides of the neck 27 X 3-2 c.m. It is situated 5 c.m. below right mastoid process. 10 c.m. above the suprasternal nitch seen below left mastoid process and on the back of neck it is merged with posterior hair margin. On dissection of the skin under the ligature mark the tissue found pale and dry. Neck structure are normal. No other external or internal injuries seen anywhere on the body. Hyoid bone - Intact. Heart - Fluid blood present in all chambers. Coronari patent. Lungs - Multiple supplement haemorrhages seen over surface of both lungs. C/s.congested. Stomach – 20 ml. brown colour fluid present. Mucosa – congested. Liver, Spleen, Kindeys – C/s.congested. Bladder – empty. Uterus – Normal in size. C/s.menstruating. Brain – c/s.congested." Ex.P.6 is the post-mortem certificate. He is of the opinion that the deceased would appear to have died of Asphyxia due to hanging. Ex.P.7 is the chemical examination report. (ix) P.W.9, in continuation of his investigation, went to the scene of occurrence and prepared Observation Mahazar, Ex.P.14 and Rough Sketch, Ex.P.15. He recovered M.O.1 saree under Ex.P.16. He examined P.Ws.1, 2, 3, 5 and 6 and others. He examined the Doctor, P.W.4. On 10.05.2005 at 3.00 p.m. P.W.9 altered the offence from https://hcservices.ecourts.gov.in/hcservices/ Section 174 Cr.P.C. to one under Section 306 IPC. Ex.P.17 is the altered First Information Report sent to the Magistrate Court and to the higher police officials. P.W.9 arrested the accused at 4.00 p.m. on the same day. On 28.05.2005, he has received the report, Ex.P.9, from P.W.7. Again he has altered the offence to one under Section 304(B) IPC. Ex.P.18 is the altered First Information Report sent to the Magistrate's Court. He examined P.W.7, Tahsildar, and the Doctor, P.W.4, who has conducted post-mortem, and received the post- mortem certificate, Ex.P.6, Forensic Report, Ex.P.7. After completion of investigation, he has filed the charge sheet against the accused for the offence under Section 304-B IPC. 3. The prosecution in order to substantiate its case examined P.Ws.1 to 9, filed Exs.P.1 to P.18 and marked M.O.1. 4. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, he has come forward with the version of total denial and stated that he has been falsely implicated in this case. He has not chosen to examine any witness on his side. 5. Mr.S.Ashok Kumar, learned Senior Counsel appearing for the appellant, while assailing the impugned judgment of conviction vehemently contended that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence and put forward the following contentions : (i) In the report, Ex.P.1, P.W.1 has made only a vague and bald allegation stating that there were petty quarrels between the deceased and the accused and he was claimed to have informed by the deceased that the accused demanded a vehicle and a sum of Rs.2,00,0000/- for business purpose and there is absolutely no other allegation of cruelty made against him and there is absolutely no allegation of any direct demand made by the accused. (ii) P.Ws.1, 5 and 6, brothers of the deceased, and P.W.3, mother of the deceased, have come forward with the version of demand of Rs.2,00,000/-, two wheeler and the cruel treatment caused to the deceased only for the first time before the Court and they have not stated either before the police during the course of investigation or before the Tahsildar, P.W.7 at the time of inquest conducted by him. (iii) P.W.7, Tahsildar, has categorically admitted in his cross- examination that the panchayatdars unanimously expressed the opinion that there was no dowry demand and there was no dispute between the accused and the deceased. (iv) In the earliest document, Ex.P.8, requisition sent by P.W.9 to Tahsildar for conducting inquest, the allegation of demand of https://hcservices.ecourts.gov.in/hcservices/ Rs.2,00,000/- and the alleged cruel treatment meted out by the deceased have not been mentioned. (v) P.Ws.1, 5 and 6 categorically stated that the brothers of the accused was staying along with them and as such, they were not happy and therefore, the possibility of the deceased committing suicide due to such frustration cannot be ruled out. (vi) P.W.1 categorically admitted in his cross-examination that the marriage expenses for booking marriage hall and feast have been met by the parents of the accused and when the victim gave birth of the child, father of the accused has given gold waist card. (vii) The evidence adduced by the prosecution through P.Ws.1, 3, 5 and 6 do not constitute the ingredients for the offences either under Section 498-A IPC or under Section 306 IPC. 6. Per contra, Mr.J.C.Durairaj, learned Government Advocate (Crl. Side) would contend that the prosecution has proved its case by adducing clear and consistent evidence through P.Ws.1, 3, 5 and 6. It is contended that there is no infirmity or inconsistency in the evidence of P.Ws.1, 3, 5 and 6 and their evidence is also corroborated by the evidence of the Tahsildar, P.W.7, who has held inquest on the dead body of the deceased. It is further contended that even at the earliest point of time in the report, Ex.P.1 it is alleged by P.W.1 that the accused demanded Rs.2,00,000/- and two wheeler and treated the deceased cruelly. Therefore, it is contended that no ground is made out by the accused warranting interference of this Court in the impugned judgment of conviction. 7. I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire materials available on record. 8. At the outset, it is to be stated that the prosecution heavily placed reliance on the evidence of P.Ws.1, 3, 5 and 6, who are closely related to the deceased. P.Ws.1, 5 and 6 are brothers and P.W.3 is the mother of the deceased. Therefore, it is quite natural that they would have a psychological hatred against the accused. It is needless to state as such they are the interested witnesses. Therefore, this Court has to consider and test the credibility of their version with great care and caution. 9. P.Ws.1, 3, 5 and 6 in spite of their close relationship, being the brothers and mother of the victim, on hearing the information furnished to them by none else than the accused, instead of rushing to the matrimonial house, claimed that they went straight away to the police station. Out of three male members one or two could have preferred to go to the police station, but it is categorically stated that all of them went to the police station to https://hcservices.ecourts.gov.in/hcservices/ give the report. 10. A perusal of the report, Ex.P.1 given by P.W.1 reveals that they have made a bald and vague allegation to the effect that they heard about the alleged ill-treatment and demand of amount and vehicle only through the deceased. There is not a whisper made in Ex.P.1 to the effect that the accused demanded money or vehicle directly from any one of the witnesses, viz., P.Ws.1, 3, 5 and 6. 11. With this background, this Court has to further scrutinize the present version of P.Ws.1, 3, 5 and 6. 12. It is pertinent to note, as rightly pointed out by the learned senior counsel for the appellants, that the present version of direct demand of the money and vehicle by the accused has been made only for the first time before the Court and they have not stated so neither before the investigating officer during the course of investigation nor before the Tahsildar, P.W.7, during the course of conducting inquest. All these witnesses have categorically admitted during the course of their cross-examination that they have not stated so earlier before the Investigating Officer, P.W.9 as well as to the Tahsildar, P.W.7. This Court cannot lost sight of the statement made by P.W.3 that after the marriage, both the deceased and the accused, were happy for a period of one year. A perusal of the evidence of all the witnesses makes it crystal clear that there is absolutely no untoward incident took place before the unnatural death of the deceased on the fateful date of occurrence, i.e., on 09.05.2005. It is also categorically admitted by P.W.1 that it is only the parents of the accused voluntarily met the marriage expenses of arranging kalyana mandapam and feast and further he has admitted that after the birth of the child, the father of the accused gifted a gold jewellery to the child. It is also brought to the notice of this Court that the child is now with the accused. 13. Yet another disturbing feature in the prosecution case is that P.Ws.1, 3, 5 and 6 have come forward with a version that while the deceased came to the parental house at the time of Pongal, an injury was found on her hand and on enquiry, she has informed that the accused, by demanding a sum of Rs.2,00,000/- and a vehicle, treated her cruelly and beat her. But even this version was given by all the above said witnesses for the first time before the Court and they have not stated so to the police during investigation or to the Tahsildar, P.W.7, during inquest. It is pertinent to note that if there is any truth in such version, the normal prudent conduct of the said witnesses, P.Ws.1, 5 and 6, who are none else than the brothers of the deceased and P.W.3, mother of the deceased, is to question the conduct of the accused immediately as to how he could beat the deceased and cause an injury on her hand. But the fact remains, as categorically admitted by P.W.1, that he has not enquired the accused about such cruel conduct either in person or over phone or complained https://hcservices.ecourts.gov.in/hcservices/ to the parents of the accused. It is further seen that P.Ws.1, 3, 5 and 6 also went to the extent of coming forward with the version for the first time before the Court that they have informed by the deceased that when she asked for the child, the accused threatened her with dire consequences as they have not stated in the report, Ex.P.1, or to the police during investigation or to the Tahsildar, P.W.7, during inquest. 14. Yet another version of P.W.1 to the effect that the accused directly demanded the amount and vehicle over the phone is also not stated in Ex.P.1, report, or to the Tahsildar, P.W.7, during inquest or to P.W.9, during investigation as per the specific and categorical admission of P.W.1. 15. In view of all these subsequent developments and improvements of prosecution case, this court has no hesitation to hold that it is most unsafe to place reliance on the testimony of P.Ws.1, 3, 5 and 6. 16. In view of the above said infirmities and inconsistencies, this Court is also further constrained to state that even as per the present version of the prosecution through P.Ws.1, 3, 5 and 6, the ingredients for either the offence under Section 498-A IPC or for the offence under Section 306 IPC have been made out. It is relevant to refer to a few decisions rendered by the Hon'ble Apex Court at this juncture. 17. The Hon'ble Apex Court in Mahendra Singh V. State of M.P. reported in 1995 SCC (Cri.) 1157 held as hereunder : "2. Learned counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it could be inferred that there was any abetment so as to bring the acts of the appellants within Section 306 IPC, under which the appellants have been punished. The dying declaration, per se, could not involved the appellants in offence punishable under Section 306 IPC, because it provides for abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Abetment has been defined in Section 107 IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a 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. Neither of the ingredients of https://hcservices.ecourts.gov.in/hcservices/ abetment are attracted on the statement of the deceased. The conviction of the appellants under Section 306 IPC merely on the allegation of harassment to the deceased is not sustainable. The appellants deserve to be acquitted of the charge." 18. The Hon'ble Apex Court in Gangula Mohan Reddy V. State of Andhra Pradesh reported in 2010 (1) SCC 750 has held as follows : "17. 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. 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 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." 19. In State of West Bengal V. Orilal Jaiswal reported in [(1994) 1 SCC 73], the Hon'ble Apex Court has held as follows : "In a criminal trial the degree of proof is stricter than what is required in the civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of Indian Evidence Act." 20. The Hon'ble Apex Court in Hans Raj V. State of Haryana reported in AIR 2004 SC 2790 held as hereunder : "The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. https://hcservices.ecourts.gov.in/hcservices/ ..... Where in a criminal trial against husband for abetment of suicide by his wife, the prosecution was guilty of improving its case from stage to stage inasmuch as the allegations that the accused did not like to keep the deceased-wife with him because she was not good looking, or that he was addicted to liquor or that the deceased had reported these matters to her parents and others, or that the accused intended to re-marry and had told his wife about it, or that the deceased had once come to her father's house in an injured condition, or even the allegations regarding beatings, did not find place in the statements recorded by the police in the course of investigation and these allegations were made at the trial for the first time and all that was alleged in the FIR or even at the stage of investigation was that there were frequent quarrels between the husband and wife, sometimes resulting in physical assault, on account of the husband being addicted to consumption of 'Bhang' and the other allegation that the accused was aggrieved of the fact that his sister was not being properly treated by her husband who was brother of the deceased was also appeared to be untrue, it was held that the presumption under Section 113- A of the Evidence Act could not be invoked to find the accused guilty of the offence under Section 306 IPC." 21. The Hon'ble Apex Court in Sanju V. State of M.P. reported in [(2002) 5 SCC 371] held as hereunder : "Both the courts below have erroneously accepted the prosecution story that the suicide by the deceased was the direct result of the quarrel that had taken place on 25-7- 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased "to go and die". For this, courts relied on a statement of S, brother of the deceased, made under Section 161 CrPC when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. In the statement of S, recorded under Section 161 CrPC, it has not been stated that the deceased had told him that the appellant had asked him "to go and die". Even if one accepts the prosecution story that the appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur https://hcservices.ecourts.gov.in/hcservices/ of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion." 22. The well-settled principle of law laid down by the Hon'ble Apex Court in the decisions cited supra is squarely applicable to the facts of the instant case. In the case on hand, as already pointed out, P.Ws.1, 3, 5 and 6 have come forward with the version of cruelty and demand of money only for the first time before the Court and their present version also does not disclose the ingredients either for the offence under Section 498-A IPC or under Section 306 IPC. 23. The last but not the least crucial aspect in this case which lost sight of the trial Court is that