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2014 DIGILAW 4442 (MAD)

Isiah v. Inspector of Police, H1 Police Station

2014-11-27

ARUNA JAGADEESAN

body2014
Judgment 1. This Criminal Appeal is filed against the judgment dated 22.3.2005 made in SC.No.89/2004 by the learned Sessions Judge, Mahalir Neethimandram, Chennai, thereby convicting and sentencing the Appellant/A1 for the offence under Sections 498A of IPC and 306 of IPC to undergo Rigorous Imprisonment for 6 years and to pay a fine of Rs.10,000/-, in default to undergo Simple Imprisonment for six months. 2. The case of the Prosecution is as follows:- a. The deceased Nagini @ Esther is the daughter of PW.1 Chinnaiah and PW.2 Pullamma. The Appellant/A1 is her husband and the second and third accused are her parents in law. The fourth accused is the sister of the third accused. The marriage between the first accused and Esther was performed in accordance with the Christian customs. Prior to the marriage, Esther was a Hindu and she was named as Nagini. Since the first accused was a Christian, the name of Nagini was changed to Esther after the marriage. At the time of marriage, Rs.50,000/- was demanded, but her parents agreed to give only Rs.15,000/-. Apart from the cash, the parents of Esther gave household articles and eight sovereigns of gold jewels. The accused persons were dissatisfied with the quantity of goods brought by Esther and they were telling that others have brought large quantity of goods as dowry. The cruelty and harassment caused by the accused persons were questioned by PW.1. The third accused replied that had a bride been taken outside, they could have given Rs.1,00,000/- and PW.1 has given only inadequate sum of Rs.15,000/-. The fourth accused openly quarrelled with PW.2 Pullamma that she has given less articles. When the matter was brought to the knowledge of the first accused, he did not respond properly. b. Originally, the parents were informed that Esther was three months pregnant. After one week, Esther went to her mother's house and informed them that she had suffered abortion. Esther also informed that she was taken to the hospital by the first accused. When the father questioned about the abortion, the first accused told him that only because Esther ate mango, she suffered abortion. She conceived for the second time. After one week, Esther went to her mother's house and informed them that she had suffered abortion. Esther also informed that she was taken to the hospital by the first accused. When the father questioned about the abortion, the first accused told him that only because Esther ate mango, she suffered abortion. She conceived for the second time. At that time, the first accused gave a sum of Rs.300/- through his mother to Esther and instructed Esther to have abortion after telling that providing food to her is a waste and therefore, she need not have any children. Esther was retained at her parent's house till about 5th month of her pregnancy. Later on she was sent to her husband's house. When the father invited her daughter and son in law for Pongal, the first accused kicked Esther in the stomach and he did not come for Pongal. At the instigation of the third accused, the first accused was often beating his wife. Unable to bear the torture, without even informing the accused persons, Esther came to the house of her parents. At that time, Esther was telling that it is better to commit suicide. When Esther refused to go along with the accused persons, the father and mother effected compromise and sent her to the husband's house. During the 7th month of her pregnancy, she was taken back to the house of the parents and till about the fifth month after delivery, she was in the house of her parents. Subsequently, they gave jewels to the child also and sent her to the in laws house. The accused persons were questioning that why no chain was given to the child. As per the demand made by the accused, one sovereign chain was given to the child later on. Despite that, the cruelty continued. The second accused was torturing the deceased and scolded her in scatological language. c. Since the cruelty continued, PW.1 and PW.2 wanted to take their daughter back to their home. The accused persons refused to send Esther. Instead, all of them pushed out PW.2 from the house and she was severely beaten. On the next day, the complaint was given to the All Women Police Station and the complaint is Ex.P12. c. Since the cruelty continued, PW.1 and PW.2 wanted to take their daughter back to their home. The accused persons refused to send Esther. Instead, all of them pushed out PW.2 from the house and she was severely beaten. On the next day, the complaint was given to the All Women Police Station and the complaint is Ex.P12. The complaint was received by PW.10, the Sub Inspector of Police of W3 Kothawal Chavadi Police Station and the receipt was given by her under Ex.D1. A woman constable was sent to enquire about Esther, but the constable came and informed that Nagini was dead. Based upon that, she closed the proceedings and the proceedings is marked as Ex.P13. Ex.D2 is the another report disclosing the closing of proceedings. When PW.1 and PW.2 along with the police went to the house of the accused persons, they were informed that Ester died. In respect of the death of her daughter, PW.1 gave the complaint Ex.P1. d. The complaint given by PW.1 was received by PW.9, the Sub Inspector of Police and a case was registered in Cr.No.205/2002 under Sections 498A, 304B of IPC and Section 4 of the Dowry Prohibition Act. The First Information Report is Ex.P11. The investigation was handed over to PW.11, the Assistant Commissioner of Police. Based upon the First Information Report, PW.11 took up the investigation and he visited the place of occurrence and prepared the sketch and observation mahazar as per Ex.P14 and Ex.P4 respectively. From the place of occurrence, he recovered MO.1 to MO.3 (plastic cane, match box and pump stove) under Ex.P15 mahazar. Then, he examined the witnesses and recorded their statements. Since the death of Esther was within a period of seven years from the date of her marriage, he gave a requisition to the Personal Assistant to the District Collector to conduct enquiry. Based upon the requisition, PW.8 Additional District Magistrate directed PW.7 Tahsildar to conduct an enquiry. The Tahsildar examined the parents of Esther. The endorsement of the father accepting the statement of his wife is Ex.P2. The signature of Pullamma in the statement given before the Tahsildar is Ex.P3. The statement of the first accused is Ex.P7. The inquest report is Ex.P8. He concluded that dowry harassment was not involved in the death of Esther and his report is Ex.P9. The endorsement of the father accepting the statement of his wife is Ex.P2. The signature of Pullamma in the statement given before the Tahsildar is Ex.P3. The statement of the first accused is Ex.P7. The inquest report is Ex.P8. He concluded that dowry harassment was not involved in the death of Esther and his report is Ex.P9. Based upon the report of the Tahsildar, PW.8 forwarded the report under Ex.P10 reporting that the death was due to the difference of opinion between husband and wife. Before sending his report, the Tahsildar gave a requisition to the Doctor to conduct post mortem on the dead body of Esther. Accordingly, PW.6 Dr. Murugan conducted post mortem and he was of the opinion that Esther would have died of shock due to extensive burn injuries and Ex.P5 is the post mortem report. The report from the Forensic Science Department under Ex.P6 ruled out that the death was due to poison. e. Then, PW.11 continued investigation and arrested the accused on 24.2.2002 at about 9.00 p.m. Then, he examined the Doctor, who conducted the post mortem and received his report. After his transfer, another Investigating Officer Mariappan, Assistant Commissioner of Police took charge, received the report from the Personal Assistant to the District Collector and after concluding investigation, laid the final report against the accused. 3. The case was taken on file in SC.No.89/2004 by the learned Sessions Judge, Mahalir Neethimandram, Chennai and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined PW.1 to PW.11 and also marked Exs.P1 to P15 and Mos.1 to 3. 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 prosecution witnesses and the accused have come with the version of total denial and stated that they have been falsely implicated in this case. The Appellant/A1 has filed a written statement and examined DW.1 to DW.3 and marked Ex.D1 to D3. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, while acquitting A2 to A4, found the appellant/A1 guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 4. The Appellant/A1 has filed a written statement and examined DW.1 to DW.3 and marked Ex.D1 to D3. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, while acquitting A2 to A4, found the appellant/A1 guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 4. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 5. In support of the appeal, the learned counsel for the Appellant submitted that the Trial Court had found that there are exaggerations, omissions and contradictions in the case of the Prosecution and finding no reliable evidence, acquitted the other accused. The learned counsel would submit that allegations are made against all the accused in a general manner and in fact, the Trial Court discarded the evidence of the Prosecution witnesses in respect of specific allegation that the deceased was forced to abort the first foetus as not reliable. 6. At the very outset, it must be noted that the Appellant/A1 has been acquitted by the Trial Court of the charge under Section 304B of IPC. The question, now, arises is as to his culpability under Sections 306 and 498A of IPC. In the statement before the Tahsildar, there is no allegation that the accused persons demanded dowry, even though it is stated in the complaint. The omission, in the statement to the Tahsildar, assumes importance, because in Ex.P12, complaint it is stated that the couple lived happily for one year. Even regarding the allegation that the deceased was forced to undergo abortion, the Trial Court itself did not found it favour with the Prosecution, as there was no consistent and cogent evidence. 7. It appears from the evidence that the deceased was insisting for establishing a separate matrimonial home, as she was frustrated with the behaviour of her in laws. She was also refused permission to visit her parents by her husband. The evidence indicated that when she visited her parents house without informing her husband, she was accused of eloping with some other person. 8. The so called alleged torture, done by the Appellant, as spoken to by the father and mother, related to the incident was much prior to the occurrence. It is well settled that mens rea is necessary to constitute instigation. 8. The so called alleged torture, done by the Appellant, as spoken to by the father and mother, related to the incident was much prior to the occurrence. It is well settled that mens rea is necessary to constitute instigation. Any amount of abuse or threat or humiliation without the necessary intention, does not amount to instigation. Intentional aiding and instigation need not be reflected by specific words or in any particular form and could be discerned by the conduct also. 9. In Sohan Raj Sharma Vs. State of Haryana (2008-Crl.J-2569), the Honourable Supreme Court held that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. In the present case, the alleged assault made by the accused on PW.2 the previous day, which according to the Prosecution is the proximate cause for the commission of suicide, does not disclose that the Appellant had in any way induced or instigated, intentionally aided or assisted in the commission of suicide. 10. In the said context, the learned counsel for the Appellant relied upon the decision of the Honourable Supreme Court rendered in the case of Bhagwan Das Vs. Kartar Singh and others (AIR-2007-SC-2045), wherein it is observed that:- “15. In our opinion, the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the Husband or her in laws. This, however, in our opinion would not by itself and without something more, attract Section 306 of IPC, read with Section 107 of IPC.” 11. In cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. Merely on the allegation of harassment, conviction in terms of Section 306 of IPC is not sustainable. There is ample evidence on record that the deceased was disturbed on account of previous day incident and the Trial Court had also observed that it is the mother of the deceased, who created problem. 12. Merely on the allegation of harassment, conviction in terms of Section 306 of IPC is not sustainable. There is ample evidence on record that the deceased was disturbed on account of previous day incident and the Trial Court had also observed that it is the mother of the deceased, who created problem. 12. In the instant case, there is no reliable evidence to establish that the Appellant husband either aided or instigated the deceased to commit suicide. In the absence of direct evidence, the Trial Court has erred in relying upon Section 113A of the Evidence Act, under which, the court may presume, on proof of circumstances enumerated therein and having regard to all the other circumstances of the case, that the suicide had been abetted by the Appellant. 13. Unlike Section 113B of the Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113A of the Evidence Act. Under Section 113A, the Prosecution has, first, to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband had subjected her to cruelty. Even if these facts are established, the court is not bound to presume that the suicide had been abetted by her husband. Section 113A of the Evidence Act gives a discretion to the court to raise such a presumption, having regard to all the other circumstances, which have to be considered by the court whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide. 14. On analyse of the background facts, there is no reliable evidence to hold that the deceased was harassed within the meaning of explanation (b) of Section 498A of IPC. That being so, this Criminal Appeal deserves to be allowed. 15. In the result, this criminal appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charges levelled against him. The bail bond if any executed by the Appellant shall stand cancelled and the fine amount if any paid by the Appellant shall be refunded to him.