Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 914 (AP)

M. Ramesh v. State of A. P.

2008-10-23

GOPALA KRISHNA TAMADA

body2008
JUDGMENT This is a case of a girl, by name K. Swapna @ Sujatha, ending her life on account of failure of love affair with the 151 appellant (A 1), for which the 151 appellant and his family members were held responsible, by the learned Special Sessions Judge-cum-IV Additional District & Sessions Judge, Chittoorat Tirupati, in Special S.C.No.24 2000, by judgment dated 17.06.2004. Being aggrieved by the same, A1 to A3 filed Criminal Appeal NO.1 058 of 2004 and A5 to A8 filed Criminal Appeal NO.1 059 of 2004. 2. As these two appeals arise out of the same judgment, they are disposed of by this common judgment. For the sake of convenience, parties hereafter referred to as per their status in the trial Court. 3. The case of the prosecution, as culled out during the course of evidence, is as follows. K. Swapna @ Sujatha (hereinafter called "the deceased") is the daughter of K. Jayallakshmamma (P.W.1) and D. Muraliswamy(P.W.2). Shewas in love with A 1 and they moved together for three years. Though initially A 1 agreed for the marriage, thereafter he refused to marry her. When P .Ws.1 and 2 asked A 1 to marry the deceased, A 1 refused stating that she belongs to 'Madiga' caste. He also abused P.Ws.1 and 2. When the same was brought to the knowledge of A2 and A3, who are the parents of A 1 , they also refused to perform the marriage of A 1 with the deceased, as the deceased and P.Ws.1 and 2 belong to 'Madiga' caste. 4. While so, on 13.05.2000, at about 7.00 or 8.00 A.M., all the accused went to the house of P.Ws.1 and 2, called them in the name of their caste and insulted them. Because of humiliation , deceased went inside the house, poured kerosene on her body and set her ablaze. On seeing the deceased in such a condition, P .Ws.1 and 2 shifted her to SVRR Hospital, Tirupati, and got her admitted there. Later, hospital authorities intimated the same to Alipiri police as well as the learned I Additional Judicial Magistrate of I Class, Tirupati, (P.W.13). On seeing the deceased in such a condition, P .Ws.1 and 2 shifted her to SVRR Hospital, Tirupati, and got her admitted there. Later, hospital authorities intimated the same to Alipiri police as well as the learned I Additional Judicial Magistrate of I Class, Tirupati, (P.W.13). On the basis of the intimation, the Assistant Sub-inspector of Police (P.W.14) and P.W.13 visited SVRR hospital, Tirupati, and P .W.13 recorded the dying declaration (Ex.P11) of the deceased at 10.00 A.M. P.W.14 recorded another dying declaration (Ex.P13) of the deceased at 11.00 A.M. On the basis of the statement made by the deceased, a case in Crime NO.88 of 2000 was registered by P.W.14, for the offences punishable under Sections 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act, for brevity), and Section 306 of the Indian Penal Code, 1860, and issued copies of first information report to all the concerned. On such information, the Deputy Superintendent of Police (P.W.15) visited SVRR hospital, Tirupati, examined the deceased and recorded her statement/dying declaration (Ex.P16) at 4.00 P.M. After recording EX.P16, he seized the clothes (M. 0.1) of the deceased in the presence of mediators. Thereafter, he proceeded to the scene of offence and prepared rough sketch (Ex. P15) of the scene of offence. On 18.05.2000, at 7.20 P.M., deceased succumbed to burn injuries while undergoing treatment. 5. On receipt of the death intimation, P.W.15 visited the hospital once again and held inquest over the dead body of the deceased in the presence of P .W.1 0 and others under EX.P8 inquest report. Thereafter, the dead body of the deceased was sent for autopsy. On a requisition, the Assistant Professor of Forensic Medicine, S.Y. Medical College Hospital, Tirupati, (P.W.11) conducted autopsy over the dead body of the deceased and issued Ex. P9 postmortem report. According to P.W.11 deceased died of septicemia as a result of infected burn wounds. On 22.05.2002 at about 11.00A.M., PW.15arrestedA1 toA3andA8 and produced them before the learned II Additional Judicial Magistrate of I Class, Tirupati, who in turn, remanded them to judicial custody. The other accused surrendered before the II Additional Judicial Magistrate of I Class, Tirupati, and they were also remanded to judicial custody. After completion of investigation, charge sheet was laid against the accused. 6. The other accused surrendered before the II Additional Judicial Magistrate of I Class, Tirupati, and they were also remanded to judicial custody. After completion of investigation, charge sheet was laid against the accused. 6. A4 was absconding and the case against him was split up and later he was tried separately in Special Sessions Case No.13 of 2003. 7. Plea of the accused was of total denial. In order to bring home the guilt of the accused, prosecution examined P.Ws.1 to 15 and marked Exs.P1 to P16 and M.O.1. No oral evidence was adduced, but Exs. D1 to D4 were marked on behalf of the defence. 8. On an analysis of the entire evidence, the learned Special Sessions Judge found the accused guilty of the offences for which they were charged, by his judgment dated 17.06.2004, and convicted and sentenced them to undergo rigorous imprisonment for one year and also to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for two weeks for the offence punishable under Section 3(1)(x) of the Act and further sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1 ,000/each, in default, to suffer simple imprisonment for one month for the offence punishable under Section 306 IPC. Assailing the said judgment, these Criminal Appeals are preferred. 9. Learned Senior Counsel, Sri C. Padmanabha Reddy, appearing for the appellants, mainly contended that the suicide of the deceased cannot be brought within the definition Section 306 IPC, and to attract the provisions of Section 306 IPC, prosecution shall satisfy the requirements under Section 107 IPC. According to him even by a stretch of imagination, on a scrutiny of the evidence on record, it cannot be said that there was abetment and on account of which alone the deceased committed suicide. The learned Senior Counsel, drawing my attention to Exs.P11, P13 and P16, dying declarations recorded by PWs.13, 14 and 15, respectively, contended that there is no consistency in the dying declarations and as such the trial Court ought not to have accepted the said dying declarations and come to the conclusion that accused are responsible for the death of the deceased. The learned Senior Counsel also contended that according to his own admission, PW.2 is a Balija by caste and when PW.2 admits that he is a Balija by caste, his offspring would be none other than Balija, and will not get the status of Madiga. So, the very charge under Section 3(1)(x) of the Act itself is bad in law and the trial Court ought not to have convicted the accused for the offence punishable under Section 3(1 )(x) of the Act. 10. The learned Additional Public Prosecutor vehemently opposed the said submissions and contended that it is solely on account of refusal to marry, deceased had taken the extreme step of committing suicide and such refusal is intentionally aiding, which definitely amounts to abetment, within the meaning of Section 107 IPC. The learned Additional Public Prosecutor further contended that since admittedly P. W.1 belongs to Madiga caste, the deceased also belongs to Madiga caste. The learned Additional Public Prosecutor, therefore, besoughtt0 sustain the conviction of the accused for the offences punishable under Sections 306 IPC and 3(1 )(x) of the Act. 11. The accusation made against the accused is that they abetted the deceased to commit suicide and also abused her and her parents naming their caste, which attracts the provisions of the Act. 12. The first charge framed against the callused is under Section 306 IPC. It is apt to refer to the first charge framed against the accused, and the substance of the same reads as under: "That on or about 13.05.2000 in between 7.00 to 8.00 A.M., at D.No.13-8, 91/A, Thattaiahgunta, Tirupati, one K. Swapna @ Sujatha, aged 18 years 0/0 K. Muraliswamy committed suicide by pouring kerosene on her body and set her ablaze and A 1 to AS abetted the commission and thereby they committed an offence punishable under Section 306 IPC read with 34 IPC." 13. Abetment under Section 306 IPC has to be understood with reference to its definition given in Section 107 IPC. According to Section 107 IPC, which deals with abetment of a thing, a person abets the doing of a thing, it he intentionally aids, by any act or illegal omission, the doing of that thing. So, to understand the word 'aiding', it is necessary to refer to explanation 2 of Section 107 IPC, and it is thus: "Explanation 2. According to Section 107 IPC, which deals with abetment of a thing, a person abets the doing of a thing, it he intentionally aids, by any act or illegal omission, the doing of that thing. So, to understand the word 'aiding', it is necessary to refer to explanation 2 of Section 107 IPC, and it is thus: "Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of the act, and thereby facilitates the commission thereof, is said to aid the doing of the act." 14. From a reading of the above provision of law, it is clear that under the third clause of Section 107 IPC, a person is said to have abetted the thing by aiding, if the act aided is committed, in order to make such aiding an offence. It is also necessary to refer to the definition of "Aid". According to Oxford Dictionary, aid is defined as 'a person or thing that helps or encourages'. 15. Reverting to the case on hand, from a narration of the events and from the contentions of the learned Additional Public Prosecutor, it appears that the suicide committed by the deceased was solely on account of refusal of the 1" accused to marry her. 16. So, now the point for determination is whether the refusal of the 1" accused amounts to intentional aiding, as defined under the third clause of Section 107 IPC. 17. Refusal to marry, if can be said ultimately make the other person to commit suicide then it can definitely be said that the person who refuses to marry has intentionally aided. But, that is not so. If a person refuses to marry another, the result would naturally be either to ignore, report the matter to eiders or police, suffer silently or take the extreme step of committing suicide, as happened in this case. As stated supra, if the eventuality on account of refusal is to take the extreme step of committing suicide alone, then it can be said that it is intentional aiding. 18. The cause for the deceased to take the extreme step of committing suicide is the refusal by A1 to marry. The act on account of refusal is the suicide by the deceased. Thus, there is a cause and an act. 18. The cause for the deceased to take the extreme step of committing suicide is the refusal by A1 to marry. The act on account of refusal is the suicide by the deceased. Thus, there is a cause and an act. If it can be said that cause is the end result of the death suicide, then it can definitely be said that it is intentionally aiding. To establish that result of refusal is suicide, the proximity between the cause and the act must be clearly established. 19. In Sia Ram v State of U.P.' the Supreme Court held as under: " ... In order to constitute abatement, the abettor must be shown to have "intentionally" aided to commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107 ... " 20. In the case of Devraj v. State of H.P., a partner in a firm committed suicide due to the other partners (accused) taking away large sums of money out of partnership fund for various purposes and their not rendering an account to the deceased, and for not permitting the deceased utilizing the profits. The other partners in the firm were accused of an offence under Section 306 IPC for the suicide of the deceased. In that case, the Supreme Court has taken the view that the accused i.e., other partners cannot be said to have committed the offence punishable under Section 3061PC. 21. Similarly, in Alka Grewal v. State of M.P.', a woman was held to be not guilty of the offence under Section 3061 PC for her husband committing suicide, after feeling insulted and humiliated due to her immoral conduct. In the said case, the Court specifically held that though she may be the cause for suicide of her husband, she cannot be said to have abetted his suicide. 22. In another case in V. Adinarayana v. State of A.P.,', where a woman committed suicide when the accused threatened her that he would reveal her illicit connection to her husband, this court has taken the view that the accused cannot be said to have committed the offence under Section 306 IPC. 23. 22. In another case in V. Adinarayana v. State of A.P.,', where a woman committed suicide when the accused threatened her that he would reveal her illicit connection to her husband, this court has taken the view that the accused cannot be said to have committed the offence under Section 306 IPC. 23. In Mahendra Singh v. State of M.P, the Supreme Court held that merely because the deceased woman stated in her dying declaration that she was harassed by the accused, the accused cannot be held guilty of an offence under Section 306 IPC. 24. Coming to the facts on hand, may be it is true that suicide by the deceased was solely on account of the 1" accused's refusal to marry. That may be the cause for her to take the extreme step of committing suicide, but it cannot be said that the 1" accused has intentionally aided or abetted the deceased to commit suicide. As stated supra, when so many things are possible because of refusal, including suicide, it cannot be said that he has intentionally aided the commission of suicide. 25. In Sanju v. State of M.P.', the Supreme Court has taken the view that even if there is it quarrel between the accused and the deceased and the accused tells the deceased to 'go and die', even then it would not constitute the ingredient of instigation, and presence of mens rea is necessary concomitant of instigation. In that case, the deceased committed suicide after two days of quarrel, during which time, the appellant uttered the said words 'go and die'. 26. There must be direct proximity between the words and the act. Then only it can be said that it is intentionally aiding. There may be so many reasons for an individual to take the extreme step of committing suicide, that is to say a person is sensitive, or frustrated on account of so many other things, etc. In the instant case, definitely it can be said that the cause for the deceased to commit suicide is the refusal of the 1" accused to marry her, but it cannot be said that the said .refusal is intentional aiding, as defined under Section 107 IPC. 27. In the instant case, definitely it can be said that the cause for the deceased to commit suicide is the refusal of the 1" accused to marry her, but it cannot be said that the said .refusal is intentional aiding, as defined under Section 107 IPC. 27. In the light of the above discussion, this Court is of the view that the contention of the learned Additional Public Prosecutor that refusal amounts to intentional aiding cannot be accepted and the accused cannot be held to be guilty of the offence under Section 306 IPC. 28. The other charge framed against the accused reads as under: " ... That A1 to A8 on or about the same date, time and place, mentioned in charge NO.1 supra, and not being a member of a Scheduled Caste or Scheduled Tribe, intentionally insulted/or intimidated with interest to humiliate K. Swapna @ Sujatha, a member of Scheduled Castel or a Scheduled Tribe by abusing her in filthy language by raising her caste in a place within public view and thereby committed an offence punishable under Section 3(1 )(x) of the SCs & STs (POA) Act, 1989 ... " . 29. The father of the deceased, who was examined as P.W.2 though stated that he is a Madiga by caste, admitted in his cross examination that his father is Chengaiah and his father belongs to Balija community. When once the father of PW.2 is a Balija by caste, P. W.2 will not get the status of Madiga. In fact, this was admitted by PW.1 Le, the wife of P.W.2. In her cross-examination she has categoricaliy stated that L.W.2. K. Murali swamy is Balija by caste and he is her husband. Of course, she has stated in the chief-examination that she belongs to Madiga community. Even in an inter-caste marriage, the offspring gets the status of father, but not that of the mother. When once the father of the deceased is admitted to be a member beionging to Balija caste, it cannot be said that the deceased is a Madiga by caste, so as to attract the provisions of the Act. 30. Another improbability, which came to light in this case, is the registration of the first information report. When once the father of the deceased is admitted to be a member beionging to Balija caste, it cannot be said that the deceased is a Madiga by caste, so as to attract the provisions of the Act. 30. Another improbability, which came to light in this case, is the registration of the first information report. According to the first information report registered by the Assistant Sub-Inspector of Police, who was examined as PW.14, Crime No.SS of 2000 is dated 13.05.2000 for the offences under Sections 3(1)(x) of the Act and 306 read with 34 IPC. 31. The very registration of the said crime, in my considered view, is bad. According to the case of the prosecution, the alleged incident took place on 13.05.2000, deceased was admitted in the hospital immediately thereafter, and she succumbed to burn injuries on 19.05.2000 Le, after six days. When the death has taken place on 19.05.2000, it is not known as to how P.W.14 could register the first information report under Section 3061PC on 13.05.2000 itself, by which time the deceased was very much alive. This improbability makes it clear that entire registration, investigation and filing of charge sheet is not in accordance with law. 32. In the light of the above discussion, it may not be necessary for this Court to go into the inconsistent statements made by the deceased in Exs.P11, P13 and P16 dying declarations. 33. For the foregoing reasons, this Court is of the view that the appellants are not guilty of the offences for which they were tried and the trial court erred in finding them guilty. 34. Accordingly, the Criminal Appeals are allowed, setting aside the conviction and sentence imposed on the appellants/ A1 to A3 and A5 to AS, by the learned Special Sessions Judge-cum-IV Additional District & Sessions Judge, Chittoor, at Tirupati, in Special Sessions Case NO.24 of 2000, vide judgment dated 17.06.2004. Appellants are acquitted of the offences under Sections 3061 PC and 3(1)(x) of the Act. The bail bonds of the appellants shall stand cancelled. The fine amount, if any, paid by the appellants shall be refunded to them.