Bail Slip The Appellant/Accused namely Babu, S/o. Vincent was directed to release on bail by the order of this Court dated 30.06.2003 made in Crl.M.P.No.3907/2003 in Crl.A.No.1505/2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.11.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.1505/2002 Babu Appellant Vs The State by Inspector of Police B4 Police Station, Saravampatti Coimbatore Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 26.4.2002 passed in SC.No.398/2001 by the learned Additional Sessions Judge (FTC) Coimbatore, convicting and sentencing the appellant for the offence under Section 306 of IPC to undergo 5 years Rigorous Imprisonment and to pay a fine of Rs.2000/- in default to undergo 6 months Simple Imprisonment. For Appellant : Mr.C.Deiva Sigamani For Respondent : Mr.S.Senthil Murugan, GA ORDER This Criminal Appeal is filed against the judgement dated 26.4.2002 passed in SC.No.398/2001 by the learned Additional Sessions Judge (FTC) Coimbatore, convicting and sentencing the appellant for the offence under Section 306 of IPC to undergo 5 years Rigorous Imprisonment and to pay a fine of Rs.2000/- in default to undergo 6 months Simple Imprisonment. 2. The case of the Prosecution is as follows:- a. PW.1 Kamalam, mother of the deceased Shanthi is residing at Vedambal Nagar and PW.2 Kuppusamy is the husband of the deceased and their marriage was performed 10 years prior to the date of occurrence and they have two daughters. There were misunderstanding and quarrels between the deceased and PW.2 frequently. Hence, the landlord asked them to vacate the premises. Thereafter, PW.2 and the deceased were residing at the Pw.1's house. On 30.12.1999, the Appellant threatened the deceased stating that the deceased should share the bed with him or otherwise he https://hcservices.ecourts.gov.in/hcservices/ would tell her husband ill of the deceased. On 30.12.1999 at evening hours, PW.2 came to the house of PW.1 to see the deceased and at that time, the Appellant came there and told that the deceased was having illicit intimacy with another man, but PW.2 disbelieved his words and stayed in the PW.1's house. On the same day at night hours, PW.2 enquired the deceased about the accused telling about her illicit intimacy, but PW.1 told PW.2 that she would go and enquire with the Appellant about the same. b. On the next day on 31.12.1999 at 7.00 a.m., PW.1 along with the deceased went to the house belonged to PW.3 Kuppusamy, husband of PW.4 Mariammal, where the Appellant was residing on rental basis and questioned the Appellant as to why he spoke about ill of the deceased, to which the Appellant replied that he would speak only like that and told the deceased to go and die and pushed PW.1 down and thereafter, PW.1 along with the deceased went to her house and left the deceased in her house and went to market to buy provisions. When PW.1 came back to her house, she found that the door was locked inside and when PW.1 saw through the window, she found that deceased committed suicide by hanging in the hook of the ceiling fan. Immediately, PW.1 went to the house of his another son-in-law PW.5 Ravi. Thereafter, PW.1, PW.5 and his wife came to the house of PW.1 and break upon the door. On receipt of information, PW.2 came there. PW.1 went to the Saravanampatti Police Station and gave the complaint Ex.P1. c. On receipt of the complaint, PW.8 Sub Inspector of Police attached to the said Police Station, on 31.12.1999 at 2.30 p.m. registered a case in Cr.No.689/1999 for the offence under Section 306 of IPC and prepared FIR Ex.P8 and sent the same to the concerned Authorities and placed the file before PW.9, the Inspector of Police attached to the said Police Station. d. On receipt of the Ex.P8, PW.9 went to the place of occurrence and examined the Appellant, PW.6 Selvam and other witnesses and prepared Ex.P2 observation mahazar and rough sketch Ex.P9 and seized MO.1 (Series) the rope used by the deceased for committing suicide under Ex.P3 mahazar. From 3.00 p.m. to 6.00 p.m on the same day, he conducted inquest on the body of the deceased in the presence of the Panchayatars and prepared Ex.P10 inquest report and examined PW.1, Muthusamy, PW.5, Rathinam, Aarusamy, Rajendrian, PW.2 to PW.4, PW.6 and the Appellant and recorded their statements and sent the body of the deceased for postmortem with a requisition Ex.P4 to the Hospital Authorities. e. On receipt of Ex.P4, PW.7 Doctor Edwin Joe on 1.1.2000 at 10.15 a.m. after receiving chemical analysis report Ex.P6, conducted postmortem and opined in Ex.P7 post mortem certificate that the deceased died due to hanging. PW.9 also examined PW.7 and recorded his statement and after completing investigation, on 14.7.2000 filed a final report against the Appellant under Section 306 of IPC. https://hcservices.ecourts.gov.in/hcservices/ 3. The case was taken on file in SC.No.398/2001 on the file of the learned Additional Sessions Judge (FTC) Coimbatore and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 9 witnesses (PW.1 to PW.9} and also relied on Exs.P1 to P10 and MO.1 (Series). On the defence side, one Latha, wife of the Appellant had been examined as DW.1. 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of 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, found the accused/appellant 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. The case of the Prosecution is that the Appellant had told the husband of the deceased on the previous day i.e. on 30.12.1999 that she had illicit intimacy with another man and PW.2 the husband of the deceased had found fault with her stating that the Appellant had told him that she was having an affair with another man. The next day i.e. on 31.12.1999, the deceased accompanied by her mother PW.1 had gone to the house of the Appellant and questioned him as to why he had falsely stated to her husband that she was having an affair with another man to which the Appellant is said to have uttered that he would say so even now and told her to go an die. The deceased came to the house and unable to bear the shame committed suicide by hanging. 8. PW.1 the mother of the deceased has stated that when they went and asked the Appellant as to why he has told PW.2 ill of the deceased, the Appellant replied that the deceased should share the bed with him or otherwise he would continue to speak ill of the deceased. PW.2, the husband of the deceased had spoken to the fact that the Appellant told him regarding the illicit intimacy of the deceased with another man, but he did not believe it. However, he had stated that he chided his wife for getting such a bad name from other persons. 9. PW.3 and PW.4 are the husband and wife in whose house the Appellant was residing with his family at the time of occurrence. They have stated that the deceased and PW.1 came to the house of the Appellant and shouted at him for speaking ill of the deceased. They have stated that the Appellant told them that he would say so and asked the deceased to do whatever she wanted to do. https://hcservices.ecourts.gov.in/hcservices/ 10. Mr.C.Deiva Sigamani, the learned counsel for the Appellant submitted by making a reference to the testimony of PW.1 and PW.2 that the marriage life of the deceased with PW.2 was very quarrelsome and they were asked to vacate the house in view of their behaviour and that apart, PW.2 used to drink daily which led to the dejection and mortification of the wife resulting into her committing suicide. He would submit that the evidence disclosed that PW.2 was scolding the deceased on the previous day which could be the main cause for the commission of suicide by the deceased. A perusal of evidence of PW.1 shows that PW.2 used to drink and was not going to work properly. She has also stated that the marital life of the deceased with PW.2 was quarrelsome and they had to vacate the house and stay in PW.1's house with PW.2 and children. 11. Mr.S.Senthil Murugan, the learned Government Advocate (Criminal Side) supported the judgement of the Trial Court and submitted that the evidence of PW.1 and PW.2 proved that the utterances made by the Appellant had driven the deceased to commit suicide and that there is reasonable proximity between the incident and the commission of suicide. 12. It is no doubt true that there is evidence to show the quarrelsome marital life of the deceased and PW.2, but there is nothing on record to show that the deceased has committed suicide aggrieved by the conduct of the husband in chiding her the previous day on being told by the Appellant that she was having an affair with another man. In fact, she had gone to the house of the Appellant the next day and had questioned as to why he has uttered so to her husband. Therefore, we cannot expect anything adverse against her husband. PW.1 the mother of the deceased has not stated anything about the possible instigation or actual instigation by PW.2 and there is nothing to suggest any such instigation on the part of PW.2. 13. The learned counsel for the Appellant would next submit that even if the entire evidence of the Prosecution is taken to be true and reliable, in the absence of mens rea, in the casual manner if the Appellant had uttered so many words against the deceased, it will not amount to abetment. He would submit that the words uttered in a quarrel or on the spur of the moment such as "go and die" cannot be taken to be uttered with mens rea and therefore, the Appellant even if assumed to have so said cannot be convicted under Section 306 of IPC. The learned counsel would urge that there was no motive or intention on the Appellant that the deceased should die committing suicide while uttering the said words. 14. The evidence of PW.1 coupled with PW.3 and PW.4 would show that the Appellant had uttered certain words against the deceased, when she came to his house and scolded him for telling her husband ill of her. We have to now see as to whether those utterances allegedly made by the Appellant would by itself constitute the ingredients of instigation. https://hcservices.ecourts.gov.in/hcservices/ 15. The word "instigate" denotes incitement or urging to do some drastic or inadvisable action to stimulate or incite. The presence of mens rea, therefore, is the necessary concomitant of instigation. It is a common knowledge that the words uttered in a quarrel or in a spur of moment cannot be taken to be uttered with mens rea. Stray domestic quarrels, perfunctory abuses by other person, crude and uncultural behaviour of men being mundane matters of normal occurrence, it will not go to form and constitute abetment unless those acts of conduct singly or accumulatively are found to be of such formidable and compelling nature as may lead to the commission of suicide. It is the deceased and her mother who had gone to the house of the Appellant and quarreled with him for having spoken ill of her. Thereafter, her mother had pacified her and brought her back to her house. Therefore, it cannot be said that the utterances made by the Appellant during the said quarrel in a fit of anger be said that the same was made with any intention to incite the commission of suicide. There cannot be any intention on his part that she should commit suicide. 16. In the case of Sanju @ Sanjay Singh Sengar Vs. State of MP [AIR-2002-SC-1998], it is held by the Honourable Supreme Court that the accused telling the deceased "to go and die" would by itself not constitute the ingredients of instigation and presence of mens rea is necessary concomitant of instigation. 17. In yet another decision of the Honourable Supreme Court rendered in the case of Ramesh Kumar Vs. State of Chattisgarh [2001-9-SCC-618], the Honourable Supreme Court while considering the charge framed and convicting for the offence under Section 306 of IPC on the basis of dying declaration recorded by the Executive Magistrate, in which she has stated that previously there had been quarrel between the deceased and on the day of occurrence too, she had a quarrel with her husband, who had said that she could go wherever she wanted to go and that thereafter, she had poured kerosene and had set file, acquitting the accused, it said thus:- "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty." 18. In the case of State of Gujarat Vs. Sunil Kumar Kanaiyalal Jain [1997-Crl.LJ-2014], a Division Bench of the Gujarat High Court, considering the scope of section 306 of IPC, elaborately dealt with abetment, realizing the responsibility of the court also has observed that the words "better die today than tomorrow" if had been uttered cannot be said to be the abetment in https://hcservices.ecourts.gov.in/hcservices/ the eye of law since the words might have been uttered to outburst of one's own fatuity or anger or consternation without any intention or knowledge or might be the rude or insulting not with desire to instigate the person to commit suicide which principle could be extended to the case on hand. 19. By applying the law settled by the Honourable Supreme Court to the facts of the case on hand, as well as analysing the evidence available on record and taking into consideration the overall circumstances of the case, I am of the considered view that no offence has been made out under Section 306 of IPC. But, unfortunately the court below convicted and sentenced the Appellant as stated supra, which requires to be set aside. 20. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the court below in SC.No.398/2001 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 To: 1. The Additional Sessions Judge-cum- Fast Track Court, Coimbatore. 2. The Principal Sessions Judge, Coimbatore. 3. The Judicial Magistrate III, Coimbatore. 4. The Chief Judicial Magistrate, Coimbatore. 5. The Superintendent, Central Prison, Coimbatore. 6. The Director General of Police, Mylapore, Chennai - 4. https://hcservices.ecourts.gov.in/hcservices/ 7. The District Collector, Coimbatore. 8. The Public Prosecutor, High Court, Madras. 1 cc To Mr.C.Deivasigamani, Advocate, SR.64460. Crl.A.No.1505/2002 RB(CO) RVL 10.12.2009 https://hcservices.ecourts.gov.in/hcservices/