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2022 DIGILAW 2959 (MAD)

Kumar v. Inspector of Police, Cuddalore

2022-08-26

G.JAYACHANDRAN

body2022
JUDGMENT (Prayer: Criminal Appeal is filed under Section 374 of Criminal Procedure Code, to set aside the judgment passed by the District Sessions, Mahila Court, Cuddalore in S.C.No.15 of 2013 dated 24.01.2014, call for the records and acquit the petitioner and pass orders.) 1. On 13.05.2012, at about 23.00 hours, Mrs.Jayapriya, wife of Kumar by pouring kerosene self immolated herself. Her husband admitted her in Government Hospital, Cuddalore with the burn injuries. On receipt of the intimation memo from the Government Hospital, Cuddalore, the Police recorded the statement of injured Jayapriya and registered the complaint in Crime No.62 of 2012 on 14.05.2012. Thereafter, Judicial Magistrate went to the Hospital recorded the statement of Jayapriya on 14.05.2012 at 02.05 a.m. For better treatment, Jayapriya was shifted to Jipmer Hospital at Pondicherry. However, she succumbed to the burn injuries on 17.05.2012 around 7.55 p.m. 2. The marriage between Jayapriya and Kumar was held three years prior to the occurrence. Hence, the Executive Magistrate conducted inquest and submitted his report on 21.05.2012 stating that the apparent cause of death is not clearly established but there seems to be demand of dowry and there is prima facie material to infer mental, physical and psychological harassment behind the death of the deceased. 3. In the course of investigation, the evidence collected revealed that the marriage between Kumar and Jayapriya deceased held on 03.10.2009. They have 11 months old child by name Keerthana. Ever since the marriage, the accused disliked the deceased and used to physically torture her and abuse her. 6 months before the occurrence, Jayapriya was severally attacked by the accused and she was treated in private hospital for the hip injury. To marry another lady, the accused was forcing the deceased to sign in a blank paper. Thus, he has committed offence under Section 498-A of I.P.C (Causing cruelty). Further, 20 days before the occurrence, the appellant forced Jayapriya to sign, in a blank paper to enable him to divorce Jayapriya and marry another lady. As a consequence of the said cruelty, on 13.05.2012, at about 11.00 p.m, Jayapriya set fire to herself by immolating herself. Thereby, the accused committed an offence under Section 306 of I.P.C. With these two charges, the accused went for trial. The trial Court held him guilty of both the charges. 4. As a consequence of the said cruelty, on 13.05.2012, at about 11.00 p.m, Jayapriya set fire to herself by immolating herself. Thereby, the accused committed an offence under Section 306 of I.P.C. With these two charges, the accused went for trial. The trial Court held him guilty of both the charges. 4. Aggrieved by the said conviction and sentence, the present appeal is filed on the ground that the dying declaration given by the deceased does not disclose any reason for commission of suicide. P.W.1 (Parvathi), the mother of the deceased is not a competent person to speak about the matters transpired between the husband and wife since P.W.1 is not residing along with them. The allegation of physical assault earlier to the incident and the admission of the deceased in the private hospital are allegations not proved with any medical records. In the absence of evidence to prove the demand of dowry or cruelty in connection with the demand of dowry, the Court below erred in convicting the appellant. There is no evidence to indicate that the appellant instigated or abetted his wife to commit suicide at any point of time. The domestic quarrel prevailed between the husband and the wife, cannot be termed as abetment to commit suicide. Refuse to talk with his wife due to domestic quarrel will not amount to cruelty more particularly, it shall not be presumed for abetment to commit suicide. 5. The Court below failed to appreciate the fact elicited during the cross examination of P.W.2 that there was quarrel with the accused 20 days prior to the incident and in that quarrel, the accused was manhandled by the family members of the deceased which was not objected by the deceased and therefore, the appellant stopped talking with the deceased. The inquest conducted by the RDO with the neighbour also had not stated anything about dowry harassment. In the said circumstances, the conviction has to be set aside. 6. Per contra, the Learned Government Advocate (Crl.Side) appearing for the respondent submitted that the wife of the appellant was put to mental cruelty by the appellant. He forced her to give consent for his 2nd marriage. When she refused to give consent, the appellant stopped talking with the wife. Neglected her and remained away from the matrimonial home. 6. Per contra, the Learned Government Advocate (Crl.Side) appearing for the respondent submitted that the wife of the appellant was put to mental cruelty by the appellant. He forced her to give consent for his 2nd marriage. When she refused to give consent, the appellant stopped talking with the wife. Neglected her and remained away from the matrimonial home. The said conduct of purposeful ignoring had caused mental depression to the deceased which has led to her suicide. The victim herself has given the statement implicating the appellant for the cause of her death. She has reiterated the complaint in the statement given to the Executive Magistrate. Therefore, non-examination of the Special Sub- Inspector, who recorded the complaint of the deceased at the hospital, is not fatal to the case of the prosecution. Section 113-A of Indian Evidence Act squarely applied to the facts of the case. Therefore, conviction of the appellant under Sections 498-A of I.P.C and 306 of I.P.C has to be sustained. 7. The Learned Government Advocate (Crl.Side) for the respondent further relying upon (Ex.P.7) dying declaration recorded by the Magistrate and (Ex.P.11) the Statement of the deceased Jayapriya emphasised that these two exhibits clearly proves the guilt of the accused for committing cruelty and abetment to commit suicide. 8. The trial Court, on perusing the material evidence, framed charges under Sections 498-A and 306 of I.P.C. To prove these charges, the prosecution has examined 14 witnesses, marked 16 Exhibits and 3 Material Objects recovered from the scene of occurrence were marked. 9. The Accident Register is marked as Ex.P.3. From the Accident Register, this Court find that Jayapriya was brought to the hospital with 3rd degree burn injury by her husband Kumar, the appellant/accused herein. From the Government Hospital, Cuddalore, she was shifted to Jipmer Hospital and later, died on 17.05.2012. The F.I.R came to be registered based on the statement given by the injured deceased, it speaks about the cause of injury. Since the maker of the statement is dead, the statement disclosing the cause for the injury gains relevancy and admissibility under Section 32 of Indian Evidence Act. 10. However, as pointed out by the Learned Counsel appearing for the appellant, the Special Sub-Inspector who has recorded the statement of the deceased in the hospital not examined. Since the maker of the statement is dead, the statement disclosing the cause for the injury gains relevancy and admissibility under Section 32 of Indian Evidence Act. 10. However, as pointed out by the Learned Counsel appearing for the appellant, the Special Sub-Inspector who has recorded the statement of the deceased in the hospital not examined. So, except to treat it as first information, no additional importance would be added to the statement of the deceased recorded by Special Sub-Inspector, who was not examined by the prosecution. The other incriminating evidence against this appellant is that, the statement given by the victim to the Magistrate and the enquiry report of RDO. Ex.P.7 the statement of the deceased recorded by the Judicial Magistrate. On 14.05.2012 at 2.05 a.m along with the statement, the Duty Medical Officer had certified that Mrs.Jayapriya was conscious and in fit state of mind and health to make dying declaration. In the said dying declaration, the deceased has stated that her husband refuse to talk with her and told her not to touch him and therefore, she burnt herself. 10 days prior to the incident, he told that, he disliked her and forced her to put signature, which she refused. Due to pressure, she self-immolated herself. 11. In the light of the above statement of the deceased, it has to be looked whether the appellant refused to talk with his wife for not giving consent to the 2nd marriage, amounts to cruelty or not? 12. In this case, the deceased Jayapriya has stated three reasons for her decision to commit suicide. (i). 10 days prior to the occurrence her husband forced her to give consent for divorce, which she has refused. (ii). From that day onwards her husband stopped talking with her. (iii). On the date of event, when she tried to touch her husband, he did not allow her to touch him. 13. In isolation none of these incidents will fall within the definition of cruelty. However, when all the three reasons put together, the lady who was put under the fear of being side-line by her husband who wish to marry another lady and his refuse to talk with her and be intimate with her necessarily to be considered as matrimonial cruelty. 14. However, when all the three reasons put together, the lady who was put under the fear of being side-line by her husband who wish to marry another lady and his refuse to talk with her and be intimate with her necessarily to be considered as matrimonial cruelty. 14. The mitigating circumstances, in this case is that the appellant had tried to put off the fire, tried to rescue her and had taken her to hospital. During the enquiry conducted by Magistrate, he has stated that, though it was a compulsory marriage, after the child birth, he was living with his wife cordially. 20 days prior to the occurrence, he beaten his wife for not maintaining adequate drinking water in the house. In this connection, the family members of Jayapriya questioned him and assaulted him. Jayapriya who was present there, did not prevent it and therefore, the appellant/accused stopped talking with her. 15. The above statement of the appellant forms part of the Executive Magistrate report (Ex.P.8). The dying declaration of the deceased and the statement of the accused before RDO sufficiently explains the circumstances under which the deceased committed suicide. There is no corroboration to the allegation that the accused/appellant forced the deceased to give consent for divorce. What the deceased had said to the Judicial Magistrate regarding consent letter which form part of dying declaration has to be considered along with the statement of the accused himself given during the inquest enquiry. The accused had informed that earlier the deceased herself gave a consent letter for divorce but he tore it into pieces subsequently. 16. As far as the allegation that the appellant did not talk with his wife for 20 days is admitted by the accused himself. The reason for not talking with her was in connection with the incident, wherein he was attacked by P.W.1, P.W.2 and P.W.3, 20 days prior to the incident and the deceased being a wife did not prevented them. This has provoked the appellant to stop conversing with his wife. The marital frictions between spouses many times wane and disappears within short period, rarely had prolonged for long period. The deceased, instead of waiting for the time to heal, had taken a haste decision to end her life. 17. This has provoked the appellant to stop conversing with his wife. The marital frictions between spouses many times wane and disappears within short period, rarely had prolonged for long period. The deceased, instead of waiting for the time to heal, had taken a haste decision to end her life. 17. This Court, from the evidence adduced by the prosecution finds that the cause of death is not due to cruelty or any abetment or instigation by the appellant. Due to interference of elders in the family, domestic quarrel has got aggravated out of proportion leading to the death of Jayapriya. 18. For the reason stated above, this Criminal Appeal is allowed. The conviction and sentence passed by the Learned Sessions Judge, Mahila Court, Cuddalore, is hereby set aside. Fine amount paid if any, shall be refunded to the accused. Bail Bond executed if any, shall stand cancelled. If the custody of the appellant is not required in any other case, the appellant/accused shall be set at liberty forthwith.