BAIL SLIP --- The Appellant in C.A.No.1104/02 (Accused No.2 in S.C.NO.15/1999 on the file of the Additional District and Sessions Court, FTC-1, Tindivanam) was directed to be released on bail as per order dated 31.7.02 in Crl.M.P.No.7217/02. --- IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.1104/2002 Saravanan Appellant Vs State by Inspector of Police Valathi Police Station Gingee Taluk Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 19.7.2002 passed in SC.No.15/1999 by the learned Additional District and Sessions Judge (FTC-I) Tindivanam, convicting and sentencing the appellant/A2 for the offence under Section 306 of IPC to undergo 7 years of Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo three months Rigorous Imprisonment. For Appellant : Mr.T.Munirathina Naidu For Respondent : Mr.Hasan Mohammed Jinnah, APP ORDER This Criminal Appeal is filed by the Appellant/A2 against the judgement dated 19.7.2002 passed in SC.No.15/1999 by the learned Additional District and Sessions Judge (FTC-I) Tindivanam, convicting and sentencing the appellant for the offence under Section 306 of IPC to undergo 7 years of Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo three months Rigorous Imprisonment. 2.The case of the Prosecution is as follows:- a. PW.1's husband is A1 and PW.1's native is Peruvarur. The deceased Govindammal is the daughter of PW.1 through his second wife. Appellant/A2 is the husband of the deceased Govindammal. PW.2 and A2 are residing at Irumbuli Village. PW.3 https://hcservices.ecourts.gov.in/hcservices/ Sekar is residing three houses away from the house of the deceased. PW.5 and PW.6 are also residing nearby the house of the deceased. Due to misunderstanding between PW.1 and A1, PW.1 went to Chennai and is residing at Chennai even prior to the occurrence. PW.4 is the Village Administrative Officer. b. The deceased demanded money from his father A1 for the work of well digging and A1 refused to give money and told that since the deceased married A2 without his consent, instead of coming and seeing me, go and die and sent the deceased and her mother out of the home. A2 also scolded and harassed the deceased by saying "go and die". Because of the wordings of A1 and A2, on 27.7.1997 at 7.30 a.m. she immolated herself by pouring kerosene on her body in her house at Irumbuli Village and died. c. On receipt of the information about the death of the deceased, PW.1 came to Irumbuli Village. A1 told that the deceased committed suicide by pouring kerosene, due to which she died. On suspicion that the deceased was murdered by A2, PW.1 gave a complaint before Valathi Police Station on 3.8.1997 at 8.00 p.m. and on receipt of the same, PW.7 the Sub Inspector of Police registered a case in Cr.No.253/1997 and prepared printed FIR Ex.P4 and sent a copy of the FIR to the Revenue Divisional Officer, Dindivanam. Thereafter, PW.7 went to the place of occurrence and prepared observation mahazar Ex.P2 in the presence of PW.4 Village Administrative Officer and one Boominathan, Village Assistant and a rough sketch Ex.P5 and also inspected the graveyard, where the deceased was buried and prepared observation mahazar Ex.p4 and a rough sketch Ex.P6 and thereafter, PW.7 sent all the documents to PW.8 the Inspector of Police for further investigation. PW.9 Revenue Divisional Officer went to the Irumbuli Village and conducted further investigation and examined A1, A2, Ramachandran, Sekar, Vasanda, Vanathai and recorded their statements. On investigation, he found that the death was not due to dowry harassment, but due to some other reasons and on 11.9.1997 sent a report to the Deputy Superintendent of Police through PW.7. d. PW.8, Inspector of Police on receipt of the report of the Revenue Divisional Officer on 25.9.1997, since the death was due to some other reasons and not due to dowry harassment, after completing the investigation, filed a final report before the court concerned for the offence under Section 306 of IPC against A1 and A2/Appellant. 3. The case was taken on file in SC.No.15/1999 on the file of the learned Additional District and Sessions Judge (FTC-I) Tindivanam and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 9 witnesses and also relied on Exs.P1 to P7. 4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of https://hcservices.ecourts.gov.in/hcservices/ prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available, acquitted A1 and found the appellant/A2 guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr.T.Munirathina Naidu, the learned counsel for the Appellant vehemently contended that the court below grossly erred in relying on the statements given by the two witnesses to the investigating officer at the time of investigation under Section 161 of Code of Criminal Procedure and convicted the Appellant based only on those statements. The statement of one Govindasamy, who died during the pendency of the trial and one Murugan, who had not been examined before the court, had been relied upon by the court below and referred to the findings of the learned Judge. 8. Before adverting to the submissions made by the learned counsel for the Appellant, on a perusal of the entire evidence let in by the Prosecution, there is absolutely no evidence attributing any overtact as against the Appellant to have abetted any act directly or indirectly inciting the commission of suicide by the deceased. PW.1, the mother of the deceased even in his chief examination had only said that on suspicion that the Appellant might have assaulted the deceased resulting in her death, gave the complaint to the police, but nothing transpired from her evidence to substantiate the vague allegations made by her implicating the Appellant for the commission of suicide by the deceased. 9. The only evidence available on record is that of PW.5, who resides in the same Village where the deceased lived with the Appellant. Even as per her evidence, it is the father and grand mother of the deceased, who scolded her for coming late to the house on the date of the occurrence. Nothing is stated by her attributing any such conduct of chiding the deceased by the Appellant. 10. However, relying on the statements made by the witnesses Govindasamy and Murugan, who had not been examined in the court, the court below had come to the conclusion that the Appellant had abetted the commission of suicide by the deceased. The learned Judge had observed relying on the statement of Govindasamy that the words uttered by the Appellant, had driven her to commit suicide which is admissible in evidence under Section 32 of the Indian Evidence Act. The said finding is not only perverse, but also a glaring miscarriage of justice too. 11. It is not a statement made by the deceased to the said witnesses. The said witnesses Govindasamy had died during trial and hence, his statement made under Section 161 Code of Criminal https://hcservices.ecourts.gov.in/hcservices/ Procedure to the investigating officer cannot be used in any manner by the Prosecution. Likewise, the statement made by the Murugan also cannot be relied upon, as he had not been examined in the court. 12. It is settled law that a statement made by any witnesses could be used either for contradiction or corroboration of the evidence made by them before the court. Under Section 32 of the Indian Evidence Act, the statement of a dead person is admissible in law, if the statement is as to the cause of death or as to any of the circumstances of transaction, which resulted in her or his death, in case if the cause of death comes into question. None of the above circumstances are present in this case and the court below grossly erred in relying upon those statements. 13. It is to be borne in mind that the paramount consideration of the court should be to avoid miscarriage of justice. In a case like the one where the Trial Court has taken a view based upon conjectures and surmises and not on the legal evidence, a duty is cast upon this court to disturb such a finding arrived at by the Trial Court. 14.In this case, there is absolutely no evidence as against the Appellant to have abetted the commission of suicide by the deceased. The evidence only discloses that the father and the grand mother of the deceased had scolded her for coming late to the house after attending a Marriamman Temple Festival in the Village. In the said circumstances, without any legal evidence the court below has come to a conclusion that the Appellant had chided the deceased for coming late to the house, which is liable to be set aside. 15. In view of the reasons stated above, this court is of the considered view that there are compelling reasons to interfere with the findings of the court below, as it is based not on legal evidence. 16. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the court below in SC.No.15/1999 is set aside and the Appellant is acquitted of the charges levelled against him. It is seen from the records that the Appellant had been enlarged on bail by this court. The bail bond if any executed by the appellant shall stand terminated and the fine amount if any paid is ordered to be refunded to him. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar Srcm https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Judicial Magistrate, Gingee. 2.-do- The Chief Judicial Magistrate, Villupuram. 3. The Additional District and Sessions Judge, (FTC NO.1), Tindivanam 4. -do- Thro' The Principal District and Sessions Judge, Villupuram. 5. The Superintendent, Central Prison, Gingee. 6. The Inspector of Police, Valathi Police Station, Gingee Taluk. 7.The District Collector, Villupuram. 8.The Director General of Police, Mylapore, Chennai. 9.The Public Prosecutor, High Court, Madras 1 cc to Mr.T.Munirathina Naidu, Advocate, Sr.No.62136 Order in Crl.A.No.1104/2002 TEJ {CO} TP/14.12.2009. https://hcservices.ecourts.gov.in/hcservices/