BAIL SLIP That the Appellant/Petitioner A2 namely Mohana was directed to be released on bail by order dated 24.5.2006 and made in Crl.M.P.No.3281/2006 in Crl.Appp.452/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 13th JULY 2010 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA CRL.A.No.452/2006 Mohana .. Appellant/A-2 Versus State rep.by Inspector of Police Karumalaikoodal Police Station Salem District. ..Respondent/Complainant Appeal preferred by the State under section 374[2] Cr.P.C., against the judgment passed in SC.No.113/2005 dated 10.05.2006 on the file of the learned I Additional District Judge, [Full Additional Charge],Sessions Judge, Mahila Court, Salem. For Appellant : Mr.K.V.Sridharan For Respondent : Mr.J.C.Durairaj, GA[Crl. Side] JUDGMENT The challenge in this appeal is to the Judgment dated 10.05.2006 made in SC.No.113/2005 passed by the learned I Additional District Judge, Full Additional Charge, Mahila Court, Salem, convicting the appellant who is arrayed as A2 for the offence u/s.306 IPC and sentencing her to undergo 5 years rigorous imprisonment and to pay a fine of Rs.500/- and in default to undergo 4 months rigorous imprisonment. 2.There are 2 accused in this case, viz., A1 and A2 and the learned Trial Judge, disbelieving the prosecution case, acquitted A1 and convicted A2 as stated bove. 3. The background facts of the case are here under:- https://hcservices.ecourts.gov.in/hcservices/ [a] A1 and the deceased Jayabharathi got married on 09.03.2000. A2 is the sister of A1. After marriage, A1 and the deceased were living with A2 at Nehru Nagar, Perumalaikoodal. Out of the wedlock of A1 and the deceased, a female child was born. P.Ws.1, 8 & 9 are the brother, father and the mother of the deceased respectively. At the time of marriage, the deceased was given gold jewelries and A1 was given 2 sovereigns of gold chain. A1 was working as a Chemist in Adithya Company manufacturing Masala. The deceased studied law after graduation. There were petty quarrel between the deceased and A1. [b] On 01.01.2003, A1 along with the deceased came to the house of P.W.1 and left their child and went for purchasing Fridge on the New Year Day. Thereafter, P.W.1 was informed by his mother, P.W.9 that A2 rang up at 11.30 a.m. informing that A1's father was admitted in the hospital and requested P.W.8, the father of the deceased to talk to the deceased over the phone. When P.W.8 rang up, there was no response. By that time, P.W.9 returned to their house. Again they tried to contact the deceased over the phone, but there was no response. P.W.8 contacted P.W.1's uncle one Arumugam and requested him to verify from the house of A1 about the deceased. As there was no response even thereafter, again he rang up and the phone call was attended by A2. At that time, A2 informed that the deceased hanged herself after a wordy quarrel. After informing the relatives, P.Ws.1, 8 and 9 left for the house of A1. On the way, they met A2 at the bus stop, but they did not talk to her. On reaching A1 they found the deceased lying dead. A1 informed that the deceased committed suicide by hanging herself. [c] P.W.8, the father of the deceased went to the respondent Police Station on 01.01.2003 at 00.00 hours midnight and gave a report, Ex.P.1 to P.W.12 the Sub-Inspector of Police, who registered a case in Crime No.1/2003 for the offence u/s.174 Cr.P.C. Ex.P.10 is the FIR and he sent the same to the higher police officials, RDO and to the court concerned. [d] P.W.13, the Deputy Superintendent of Police received the FIR on 02.01.2003 at 6.00 a.m. and went to the scene of occurrence. He prepared Ex.P.1-Observation Mahazar and Rough Sketch- Ex.P.12. He has also made arrangements to take photographs of the scene through the photographer. [e] P.W.7, the Revenue Divisional Officer received the FIR from P.W.12, the Sub-Inspector of Police at 7.00 a.m. on 02.01.2003. He held inquest on the dead body of the deceased on the same day at 8.00 a.m. in the presence of witnesses and Ex.P.8 is the Inquest Report. He examined the parents of the deceased and A1. As there was a suspicion in the death, he sent the body for postmortem and requested the police to conduct investigation. https://hcservices.ecourts.gov.in/hcservices/ [f] P.W.13, in continuation of the investigation, examined P.Ws.8, 9 and others and sent the body for postmortem. [g] The doctor, P.W.5 attached to the Government Hospital, Mettur conducted postmortem on the dead body of the deceased on 05.01.2003. Ex.P.4 is the Post Mortem Certificate wherein he has found the following injuries:- "[1]A bluish black rope mark 1 cm breadth above the thyroid cartilage runs horizontally backwards encircling the neck completely. On dissection of rope mark subcutaneous echymosis present which is antemortal. Base of the rope mark is pale. Trachea, Oesophagus and major blood vessels are compressed and congested . Bleeding present through both nostrils. [2]Multiple abrasion of varying sizes on back of left leg from knee to heel. [3]Multiple abrasions of varying sizes on back of right thigh present up to the back of knee. [4]An abrasion 3 cm x 2 cm on right heel. The abrasions are reddish black in colour" The doctor, P.W.6 opined that the deceased would appeared to have died of asphyxia due to hanging as per Ex.P.7. [h] P.W.14, the Inspector of Police attached to the respondent police station, altered the FIR to one u/s.306 IPC. Ex.P.13 is the altered FIR. He arrested A1 and A2 on 01.03.2003 at 1.30 p.m. He examined the doctor and other witnesses and recorded their statements. As P.W.7, the Revenue Divisional Officer had given an opinion that this is not a case of dowry demand, he has asked the investigating officer to conduct further investigation. P.W.14, took up the further investigation and examined the other witnesses on 26.01.2003, 05.02.2003 and 23.02.2003. [i] P.W.15, took up further investigation and received Ex.P.4, the Post Mortem Certificate and examined the doctor Vallinayagam. After completion of the investigation, P.W.15 laid the charge sheet against the accused for the offence u/s.306 IPC. [j] The prosecution, in order to substantiate its case, examined P.Ws.1 to 15, filed Exs.P.1 to 13 and marked M.O.1. 4. When the accused were questioned u/s.313 Cr.P.C., in respect of the incriminating materials in the evidence adduced by the prosecution, they have come forward with the version of total denial https://hcservices.ecourts.gov.in/hcservices/ and they have not chosen to examine any witness on their side. A1 has submitted a written statement u/s.233 [2] Cr.P.C., stating that there was no demand for dowry or any misunderstanding between 2 families and they have not cruelly treated the deceased. A2 also submitted a written statement u/s.233 [2] Cr.P.C. and she has also denied the allegations leveled against her and she has stated that both A1 and the deceased were living happily and there was no misunderstanding or quarrel between 2 families. It is further stated that either herself or A1 treated the deceased cruelly at any point of time. 5. The learned Trial Judge on consideration of evidence adduced by the prosecution rejected the case of the prosecution in respect of A1 and convicted the appellant/A2 as stated above. 6. Mr.V.K.Sridharan, learned counsel 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:- "[a] The prosecution has not produced any incriminating materials implicating A2/appellant. [b] There is not an iota of evidence available on record against the appellant/A2. [c] The present version of P.Ws.1, 8 and 9 implicating A2 has not been stated to the police during the course of investigation and as such, their evidence is unreliable. [d] Even according to the neighbours, P.Ws.2 and 10, there was no quarrel between A2 and the deceased at any point of time. [e] The charge framed against A2/appellant is to the effect that the deceased was subjected to cruelty from 01.01.2002, i.e., for about one year prior to the date of occurrence, i.e., 01.01.2003. But the prosecution has not adduced any evidence to establish the said charge as none of the witnesses have spoken any cruel treatment to the deceased during the said period. [f] Even as per the report of P.W.7, the Revenue Divisional Officer, there is no demand of dowry or any cruel treatment and P.W.7 has not given any definite opinion as per his report Ex.P.8. https://hcservices.ecourts.gov.in/hcservices/ [g] The conduct of A2 also proves her innocence as she has called for the help of P.W.2, the neighbour and requested him to save the deceased as she was not opening the door which was bolted inside and P.W.2 came and broke open the door. [h] The learned Trial Judge has placed reliance on the allegations contained in the FIR which was not spoken by the author, P.W.8 in his evidence. The learned Trial Judge has committed error of law in placing reliance on the FIR which is not the substantive piece of evidence and it can be placed reliance only for eliciting contradiction. [i] The learned Trial Judge also committed error of law by placing reliance on the previous statements recorded by P.W.7-Revenue Divisional Officer and such statements also could be placed reliance only for eliciting contradictions." 7. The learned counsel for the appellant, in support of his contentions, placed reliance on the following decisions:- CITATION CAUSE TITLE 1997 SCC [CrI.] 51 CHINNAMMAL Vs. STATE OF TAMIL NADU AND OTHERS 1991 SCC [Crl.] 67 GAURI SHANKER SHARMA Vs. STATE OF UTTAR PRADESH 2010 [1] SCC [Crl.] 1015 MANJU RAM KALITA Vs. STATE OF ASSAM 2010 [1] SCC [Crl.] 917 GANGULA MOHAN REDDY Vs. STATE OF ANDHRA PRADESH 8. Per contra, Mr.J.C.Durairaj, learned Government Advocate [Crl. Side] would contend that there is no infirmity or illegality in the impugned judgment of conviction. It is contended that the evidence of P.Ws.1, 8 and 9 is clear and consistent and all the 3 witnesses have implicated the appellant/A2 fr causing cruelty to the deceased. It is submitted that there is no infirmity in the evidence of P.Ws.1, 8 and 9 and that no ground is made out by the appellant warranting interference of this court in the impugned judgment of conviction. 9. I have given my careful and anxious consideration to the rival submissions made on either side and also scanned through the entire evidence available on record including the impugned judgment of acquittal. https://hcservices.ecourts.gov.in/hcservices/ 10. The prosecution heavily placed reliance on the evidence of P.Ws.1, 8 and 9, viz., the brother, father and the mother of the deceased. But the undisputed fact remains that none of these witnesses whispered a word to the effect that the deceased at any point of time, informed them that she has been subjected to cruelty either by A1 or A2 or any other family members of A1. It is pertinent to note that P.W.1 stated that neighbours of A1 told him that A2 quarreled with the deceased whereas the neighbours, viz., P.Ws.2 and 10 have not whispered a word about any quarrel either between A1 and the deceased or between A2 and the deceased . As far as P.W.8, the father of the deceased is concerned, he has merely stated that A1 informed him that A2 scolded the deceased and as a result, the deceased hanged herself. P.W.8's evidence also does not disclose any incriminating materials against A2. P.W.9, the mother of the deceased again stated that A1 informed them that there was a quarrel between the deceased and A2. But even this version of P.Ws.8 and 9 have not been stated during the course of investigation to the investigating officer, P.W.13. They have come forward with such versions only for the first time before the court and as such, this court has no hesitation to hold that the evidence of P.Ws.1, 8 and 9 is untrustworthy and unreliable. 11. It is also pertinent to note that though P.W.8 has made certain allegations of demand of dowry and cruel treatment against A1, A2 and other family members of A1 in the report Ex.P.1, P.W.8 has not whispered a word during the course of evidence. But, unfortunately, the learned trial judge has placed reliance on the allegations contained in the FIR. It is needless to state that the FIR is not a substantive piece of evidence and it can be placed reliance only for eliciting contradictions between the report and the evidence of the author of the report, viz., P.W.8. It is also seen that the learned Trial Judge also unfortunately placed reliance on the previous statements recorded from P.Ws.1,8 and 9 by P.W.7, the Revenue Divisional Officer. It is well settled that such previous statements made by any witness could be used only by the defence for the purpose of eliciting contradictions as per provision u/s.145 of the Indian Evidence Act. The same cannot be placed reliance by the prosecution. The learned counsel for the appellant has rightly placed reliance on the decision of the Hon'ble Apex Court in CHINNAMMAL Vs. STATE OF TAMIL NADU AND OTHERS reported in 1997 SCC [Criminal] 51 wherein it has been held as here under:- "..... It is trite that a case has to be decided on the basis of the evidence adduced by the witnesses during the trial and any previous statements made by any such witnesses can be used by the defence for the purpose of only contradicting and discrediting that particular witness in the manner laid down in section 145 of the Evidence Act. Under no circumstances can such previous statements be treated as substantive https://hcservices.ecourts.gov.in/hcservices/ evidence as has been treated by the High Court in the instant case." The learned Trial Judge having left with no other evidence available on record to implicate even the appellant/A2 has wrongly sought to have placed reliance on the previous statements said to have been recorded by P.W.7-Revenue Divisional Officer. This is nothing but a patent infirmity in the impugned judgment of the trial court. 12. The evidence of P.Ws.2 and 10 assumes importance in this case as they are the independent witnesses. Both P.Ws.2 and 10 are neighbours of A1 and A2. It is seen that P.Ws.2 and 10 have categorically stated that the deceased was living happily with A1 and other family members. P.W.2 has categorically stated that the deceased never expressed any grievance against A1 or other family members of her husband. P.W.10 has categorically admitted in her cross examination that A1 and the deceased were living happily and there was no dispute or quarrel between the deceased and A1 and A2 and their family members. Therefore, the evidence of P.W.2 and P.W.10 makes it crystal clear that there was no quarrel between A1 and A2 and the deceased at any point of time. 13. Now, again coming to the evidence of P.Ws.1,8 and 9 who are the brother, father and the mother of the deceased, this court cannot brush aside their categorical admission in the cross examination that they have stated to the police during the course of investigation that both A1 and the deceased were leading happy married life. P.W.8 has categorically stated in his cross examination that he has stated to the Revenue Divisional Officer, P.W.7, both A1 and the deceased were living happily. Therefore, even as per the versions of P.Ws.1, 8 and 9 neither A1 nor A2 have subjected the deceased to any cruel treatment at any point of time. 14. As far as the evidence of P.W.7, the Revenue Divisional Officer is concerned, it is pertinent to note that he has not expressed any definite opinion. He has simply stated that there is suspicion in the death of the deceased. The report of the Revenue Divisional Officer further made very clear that there is no demand of dowry or cruel treatment. Therefore, the prosecution cannot place any reliance on the evidence of P.W.7 and his report Ex.P.8. 15. It is also worthwhile to refer to the settled principle of law laid down by the Hon'ble Apex Court in a catena of decisions in respect of the ingredients constituting an offence u/s.306 IPC. In SANJU ALIASS SANJAY SINGH SENGAR V. STATE OF M.P. reported in (2002) 5 SUPREME COURT CASES 371, the Hon'ble Apex Court has held as here under:- " Both the courts below have erroneously accepted the prosecution story that the suicide by the deceased https://hcservices.ecourts.gov.in/hcservices/ was the direct result of the quarrel that had taken place on 25.07.1998 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, 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 of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion." 16. In HANS RAJ V. STATE OF HARYANA reported in AIR 2004 SUPREME COURT 2790, the Hon'ble Apex Court has held as here under:- Evidence Act (1 of 1872) S.113-A. "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. (Para 14) 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 mars 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 https://hcservices.ecourts.gov.in/hcservices/ 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 S.113 of the Evidence Act could not be invoked to find the accused guilty of the offence under S.306, I.P.C." 17. The Hon'ble Apex Court in the latest decision, relied on by the learned counsel for the appellant, in GANGULA MOHAN REDDY V. STATE OF ANDHRA PRADESH reported in (2010) 1 SUPREME COURT CASES (Cri) 917, has held as here under:- "16. This Court in Chitresh Kumar Chopra V. State (Govt. of NCT of Delhi) had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 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 suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide." 18. The settled principle of law as laid down by the Hon'ble Apex Court in the decisions cited supra makes it crystal clear that the abetment involves a mandatory process of instigating a person or intentionally aiding a person doing of a thing. There https://hcservices.ecourts.gov.in/hcservices/ should be a mens rea on the part of the accused. As far as the case on hand is concerned, there is not an iota of evidence to make out the above said fundamental ingredients to constitute the offence u/s.306 IPC. 19. In view of the aforesaid reasons, this court has to come to the irresistible conclusion to the effect that the impugned judgment of conviction is unsustainable. Accordingly, the appeal is allowed and the impugned judgment of conviction passed by the learned I Additional District Judge, [Full Additional Charge], Mahila Court, Salem is set aside and the appellant is acquitted of all the charges leveled against her. 20. It is reported that the appellant is on bail. The bail bond executed by her shall stand terminated and fine amount, if any paid, shall be directed to be refunded to her. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1.The I Additional District Judge Full Additional Incharge, Mahila Court Salem. 2.The Inspector of Police Karumalaikoodal Police Station, Salem District. 3.The Public Prosecutor High Court, Madras. 4.The Judl.Magistrate No.II, Mettur. 5.The Chief Judl.Magistrate, Salem. 6.The Superintendent, Central Prison, For Women, Salem. 1 cc To Mr.K.V.Sridharan, Advocate, SR.50996 Crl.A.No.452/2006 mbs(co) pmk.6.8.2010. https://hcservices.ecourts.gov.in/hcservices/