Partly allowed

Saravanan v. the Inspector of Police

Madras HC22 Dec 2020CRL A/105/2014

Case brief

AI extract

What is this about?

Appeal against conviction for Sections 306 and 498A IPC. Court quashed conviction for abetment of suicide noting lack of instigation against the appellant, but confirmed cruelty conviction based on dying declaration regarding suicide. Sentence modified accordingly.

What did the court decide?

Conviction under Section 306 IPC set aside; conviction under Section 498A IPC confirmed; sentence modified and appellant to be sent to jail.

Saravanan Vs the Inspector of Police — Dowry and Cruelty | Madras HC (2020)

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Bail Slip

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The Petitioner/Accused Viz., Saravanan S/o Palanisamy was released on bail as per order of this Court dated 07/03/2014 in M.P.No.01/2014 in Crl.A No.105 of 2014 on the file of this Court.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 03.11.2020

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PRONOUNCED ON : 22.12.2020

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CORAM:

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THE HONOURABLE MR. JUSTICE R.PONGIAPPAN CRL.A.No.105 of 2014 Saravanan S/o.Palanisamy 215-A, Perumal Koil Street, Sedapalayam, Coimbatore. ... Appellant Vs

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The State rep. by The Inspector of Police, All Women Police Station, Perur, Coimbatore District. Crime No.17 of 2010 ... Respondent

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Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., against the judgment dated 09.10.2013 made in S.C.No.6 of 2011 on the file of the learned Sessions Judge, Magalir Neethimandram (Mahila Court), Coimbatore, convicting the accused for the offences under Sections 498A and 306 of IPC.

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For Appellant : Mr.M.N.Balakrishnan For Respondent : Mr.S.Karthikeyan Additional Public Prosecutor

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The present Criminal Appeal has been filed to set aside the judgment of conviction and sentence dated 09.10.2013, passed in S.C.No.6 of 2011 by the learned Sessions Judge, Magalir Neethimandram, (Mahila Court), Coimbatore.

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The appellant herein is the sole accused in S.C.No.6 of 2011 on the file of the learned Sessions Judge,

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Mahila Court, Coimbatore. He stood charged for the offences under Sections 498A and 306 of IPC. By judgment dated 09.10.2013, the trial Court convicted the appellant under Section 498A of IPC and sentenced him to undergo one year rigorous imprisonment and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for one month. Further he was convicted for the offence under Section 306 of IPC and sentenced to undergo seven years of rigorous imprisonment and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for three months. Challenging the said conviction and sentence the appellant is before this Court with this appeal.

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The case of the prosecution, in brief, is as follows :-

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(i) The deceased Rani is the wife of the appellant. Further, she is the adopted daughter of P.W.1 Ammasai. After the marriage between the deceased and the accused, both of them were residing in the same roof, which belongs to P.W.1. The accused often came to his house in a drunken mood and ill treated the deceased, by suspecting her chastity. Prior to two months from the date of occurrence, the deceased is suffering from some mental illness. On the date of occurrence, when at the time, PW1 returned to his house, the deceased was wandering around setting herself on fire. But at the same time, in front of his house the accused was cleaning his motorcycle. Only at the instance of PW1, he put water on the deceased to set off the fire. After the said incident, the deceased was brought to the Government Hospital, Coimbatore, in which she was admitted as inpatient. P.W.3 Dr.Raghuramaiah admitted the deceased in the hospital on 30.03.2010 at about 7.00 p.m., and he has informed the said occurrence to the Police Station as well as the learned Judicial Magistrate No.I, Coimbatore.

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(ii) On receipt of the information, P.W.6 Mrs.Parameswari, the then learned Judicial Magistrate-I, Coimbatore rushed to the Government Hospital, Coimbatore and recorded the dying declaration given by the deceased in the presence of P.W.2 Dr.Narayanasamy, attached with the Government Hospital, Coimbatore. After recording the dying declaration, the learned Magistrate obtained left leg finger impression due to the reason that her thumb impression is not available. Further in respect of recording dying declaration, P.W.2 Dr.Narayanasamy gave certificate that the deceased was in conscious and having the mental fitness, for giving dying declaration.

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(iii) In the mean while, P.W.9, Ananthalakshmi, the then Sub Inspector of Police, All Women Police Station, Perur, on intimation from the out post police at Coimbatore Government Hospital, rushed to the Government Hospital, Coimbatore and recorded the oral statement given by the deceased Rani. Upon

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the statement given by the said Rani, she registered a case in Crime No.17 of 2010 for the offences under Section 309 r/w 498A of IPC. The printed FIR was marked as Ex.P.9 and the statement given by the deceased Rani was marked as Ex.P.11.

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(iv) After the preparation of FIR, P.W.9 visited the scene of occurrence and in the presence of P.W.5, Chinnasamy, she prepared the observation Mahazar under Ex.P.4 and had drawn the rough sketch under Ex.P.10. She also seized one kerosene cane, match box and one nighty in burned condition through seizure mahazar, which has been marked as Ex.P.5. The recovered materials are marked as M.O.1 to M.O.3. She also arrested the accused and sent him for judicial custody. Further, she received the death intimation from the Government Hospital and then, she altered the Sections of law from 309 r/w 498A of IPC to Sections 306 and 498A of IPC. The alteration report has been marked as Ex.B.12. She has also recorded the statement from the witnesses.

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(v). During the course of investigation, P.W.7, Thiru.Mohamed Meeran, the then Revenue Divisional Officer conducted enquiry on 18.04.2010, for knowing the cause of death. He examined the witnesses and recorded their statement. Finally he came to the conclusion that the deceased would have committed suicide, due to the threat made by the accused as to pour kerosene on the children if she did not give them a nose stud. The report given by the RDO is marked as Ex.B.7 series.

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(vi) In continuation of investigation, P.W.7, had given the requisition to the hospital authorities to conduct postmortem on the deceased body. On receipt of the same P.W.4 Dr.Jayasingh, attached with Government Medical College conducted post-mortem and found the following injuries which have been seen over the deceased body :-

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"The following ante mortem injuries are seen in the body:-

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Infected dermo epidermal burns seen over entire fact, entire neck, entire left upper limb, front of entire chest and abdomen, patchy, areas of right arm and right forearm, entire back of chest, patchy area of pack of abdomen.

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Total singeing of hairs noted over fact and both

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armpits

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Partial singeing noted over marginal scalp hairs.

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Degloving of skin noted over left palm.

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The base of the burnt area was reddish in colour.

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Infected area converted with yellowish green slough."

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Finally, he came to the conclusion that the deceased died due to the burn injuries. The post-mortem report and final report which were issued by P.W.4 are marked as Ex.P.2 and Ex.P.3.

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(vii). Further at the request of the Investigating Officer, P.W.8, Visalakshi, Forensic Science Assistant, received the sample viz., plastic cane and matchbox and burned nighty and after analysis she found that the kerosene in the plastic can and item No.3 nighty are one and same. The report given by P.W.8 is marked as Ex.P.8. In continuation of the investigation, after completion of above process, P.W.9 handed over the case records to P.W.10 for further investigation.

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(viii) P.W.10 Thiru.Mutharasu, Assistant Commissioner has taken the case for further investigation. He examined the witnesses and recorded their statements. Finally, he came to the conclusion that the appellant has committed the offences under Sections 498A and 306 of IPC and filed a final report before the learned Judicial Magistrate No.VI, Coimbatore.

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Based on the above materials, the trial Court framed charge for the offences under Sections 498A and 306 of IPC as against the appellant. The accused denied the same and opted for trial. Therefore, the accused was put on trial. In order to prove their case on the side of the prosecution, ten witnesses were examined as P.W.1 to P.W.10 and 14 documents were marked as Ex.P.1 to Ex.P.14. Besides that three material objects were marked as M.O.1 to M.O.3.

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(i). Out of the said witnesses, P.W.1 Ammasi is the father of the deceased Rani. He has stated before the trial Court that during the relevant point of time the accused herein often quarrelled with the deceased in a drunken mode. He has further stated that before two months from the date of occurrence, due to the torture given by the appellant the deceased was suffering from mental illness. Further he has narrated the occurrence, which happened on 30.03.2010.

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(ii). P.W.2 Dr.Narayanasamy, attached with the Government Hospital, Coimbatore, deposed that on 31.03.2010 at about 12.30 pm., he gave a certificate that the deceased was in conscious at the time of recording dying declaration. P.W.3 Dr.Raghuramaiah has stated that on 30.03.2010 at about 7.00 p.m., the deceased was brought by her husband viz., Saravanan. The said Saravanan had stated that the deceased met with fire accident unexpectedly. P.W.4, Dr.Jayashigh, attached with the Government Medical Hospital Coimbatore, has stated about the details of the injuries sustained by the deceased. He had given the opinion that the deceased might have died due to the burn injuries and its consequences.

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(iii). P.W.5, Chinnasamy is the resident of the occurrence village. He has stated about the preparation of observation mahazar and in respect of the seizure of material objects by the Investigating Officer. P.W.6 Tmt.Parameswari, the then learned Judicial Magistrate No.I, Coimbatore, deposed that on receipt of the intimation from the Government Hospital, Coimbatore, on 31.03.2010 at about 2.05 hours, she rushed to the Government Hospital, Coimbatore and recorded the dying declaration from the deceased Rani in the presence of Dr.Narayanasamy.

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(iv) P.W.7, Mohamed Meeran, the then Revenue Divisional Officer has stated about the examination of witnesses and about the preparation of inquest report. Similarly, P.W.8, Visalakshi, Forensic Assistant has stated about the receipt of the material objects and has also stated that M.O.1 and M.O.3 are having smell of kerosene.

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(v) P.W.9 Anandalakshmi, the then Sub Inspector of Police, All Women Police Station, Perur, has stated that on receipt of the information from the Government Hospital, she rushed to the hospital and recorded the statement of the deceased and registered the FIR. She has also stated about the manner of investigation conducted by her. P.W.10, Mutharasu, the then Assistant Commissioner of Police has stated about the examination of witnesses and also in respect of filing of final report.

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When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., the accused denied the same as false. However, he did not choose to examine any witness on his side nor marked any documents.

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Having considered all the materials placed before him and on considering the arguments advanced by either sides, the learned trial Judge convicted and sentenced the accused as indicated in the 2^nd paragraph of this judgment. Challenging the same, the present appeal has been filed.

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I have heard Mr.M.N.Balakrishnan, learned counsel appearing for the appellant and Mr.S.Karthikeyan, learned Additional Public Prosecutor appearing for the respondent and perused the records carefully.

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The learned counsel appearing for the appellant would contend that as per the case of the prosecution, the appellant herein abets his wife for committing suicide. Further being husband, he made harassment to his wife with a view to

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receive money for buying liquor. In this regard, the evidence given by P.W.1 appears that the deceased Rani is a mentally ill person at the time of occurrence. Further the evidence given by P.W.1 is not in respect of the harassment committed by the appellant.

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More than that, the dying declaration, which has been recorded by P.W.6 revealed the fact that the deceased did not say anything against the accused, in respect of the instigation or abetment made for committing suicide. The learned Judge, without appreciating the same, convicted the accused which is erroneous in law. According to him, the prosecution has not proved the case beyond all reasonable doubts. Therefore he prayed to allow this appeal.

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Per contra, the learned Additional Public Prosecutor appearing for the respondent would contend that though the evidence given by P.W.1 is not in support of the prosecution, during the time of cross examination of P.W.1 on the side of prosecution, P.W.1 himself admitted that the version stated before the trial Court has not stated before the Investigating Officer at the time of recording 161 statement. Therefore the evidence given by P.W.1 is not at all taken into account for considering the case of the appellant. He would further contended that the dying declaration given by the deceased before P.W.6 is sufficient to hold that the appellant had committed the offence as stated by the prosecution. Therefore, there is no need to interfere with the conviction passed by the trial Court.

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I have considered the rival submissions made on

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either side.

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Before the trial Court, though P.W.1 gave evidence in support of the prosecution in the later point of his evidence, he has stated that prior to two months from the date of occurrence, the deceased was suffering from mental illness. Further he has stated that he did not know about the harassment committed by the appellant to the deceased. Only in the said circumstances, he was treated as hostile witness. It is true, during the time of cross examination by the prosecution, P.W.1 admitted that the evidence given in respect to the mental illness of the deceased has not been stated before the Investigating Officer. Therefore, though P.W.1 was treated as hostile witness in view of the judgment reported in (2010) 3 SCC Crl. 1402, in the case of C. MUNIAPPAN AND OTHERS VS STATE OF TAMIL NADU, the evidence given by P.W.1 cannot be thrown away entirely. However, the evidence given by P.W.1 diluted the case of the prosecution and creates doubt whether the alleged occurrence had happened as stated by the prosecution.

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In this case, during the course of investigation, the prosecution recorded the dying declaration from the deceased. In respect of recording dying declaration, P.W.6 the then Judicial Magistrate No.1, Coimbatore, has clearly and categorically stated about the recording of dying declaration. Further P.W.2 the Doctor attached with Government Hospital, Coimbatore, certifies that the deceased was in conscious during the course of giving dying declaration. In fact, in respect of recording dying declaration, the procedure adopted by the Magistrate was not disputed on the side of the accused. In the said circumstances, coming to famous legal maxim i.e., "Nemo mortiturus praesumitur mentire" which means a man will not meet his Maker with a lie in his mouth, is also recognised in Indian Law, that "a dying man seldom lies" in other words "truth sits upon the lips of a dying man". Therefore, in view of the said maxim, it is necessary to accept the dying declaration given by the deceased wholly without any omission.

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At this juncture, it is useful to see the judgment of the Hon'ble Supreme Court of India reported in (2017) 2 SCC (Cri) 624 in the case of STATE OF MAHARASHTRA VS. NISAR RAMZAN SAYYED, wherein it was held as follows :-

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"12. Astonishingly we have found the dying declarations of the deceased with consistent allegations about demand of dowry and modus operandi of the offence which resulted into the death of the declarant and her minor child. Before coming to the conclusion in the present case, we would like to emphasize on the principle enumerated in the famous legal maxim of the Law of Evidence i.e., Nemo Moriturus Praesumitur mentire which means a man will not meet his maker with a lie in his mouth. Our Indian Law also recognizes this fact that “a dying man seldom lies” or in other words “truth sits upon the lips of a dying man”. The relevance of this very fact, though exception to rule of hearsay evidence, has been discussed in numerous judgments of this Court including Uka Ram Vs. State of Rajasthan, (2001) 5 SCC 254; Babulal & Ors. Vs. State of M.P., (2003) 12 SCC 490; Muthu Kutty & Anr. Vs. State, (2005) 9 SCC 113; Dharam Pal & Ors. Vs. State of Uttar Pradesh, (2008) 17 SCC 337; Lakhan Vs. State of Madhya Pradesh, (2010) 8 SCC 514.

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Hence it is evident that the dying declaration given by the deceased alone is sufficient to accept the case of the prosecution.

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In the said circumstances, in the dying declaration, the deceased has stated as follows :-

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"vdf;F jpUkzk; eilbgw;W 7 tUlk; MfpwJ/ vd; fzth; nrhkD}h; Mini Auto oiutuhf ntiyghh;fpwhh;/ vdf;F 2 FHe;ijfs; cs;sJ/ xU igad; bgah; nkhfdRe;juk;/ taJ 6/ uhn$!;thp 3 taJ bgz; FHe;ij cs;sJ/ ehd; nrlk;ghisaj;jpy; rh;r; mUfpy; jwpFnlhdpy; ntiy bra;fpnwd;/ md;W vd; tPl;Lfhuh; jwpFnlhDf;F te;J rz;il nghl;lhh;/ mth; tPl;ow;F te;j gpwF 5/30 kzpastpy; ehd; te;njd;/ mg;nghJ vd; fzth; Foj;jpUe;jhh;/ vd; igaid miHj;J vd; Kf;Fj;jpis th';FkhW mtid kpul;odhh;/ mtid kz;bzz;iz vLj;J vd; nky; Cw;wp gw;w itf;f brhd;dhh;/ ehd; v';nf igad; gw;w itj;J bfhs;thndh vd;Wk;. kdk; tpuf;jp mile;J ehnd mjid th';fp vd;nky; Cw;wp mUfpy; ,Ue;j jPf;Fr;rpia vLj;J gw;witj;J bfhz;nld;/ vd;id ehd; Kjyhspia itj;jpUf;fpnwd; vd;W vd; fzth; vd;dplk; mof;fo rz;ilnghLthh;/"

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The said statement makes clear that at the relevant point of time, the appellant herein was in drunken mode threatened his son for bringing nose stud from the deceased. Further he directed his son to pour kerosene on the deceased and set fire. Due to the same, the deceased herself poured kerosene on her body and put fire. However, the close reading of the said dying declaration revealed the fact that the appellant had not directly abetted the deceased to commit suicide.

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At this juncture, it is relevant to see the judgment of the Kerala High Court reported in 2005 Cri.L.J.4322 in the case of CYRIAC VS. SUB INSPECTOR OF POLICE, wherein it was held as follows :-

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"8.......... to constitute instigation', a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other, by goading or urging forward. Going by the dictionary meaning (vide Oxford Advanced Learners Dictionary, Sixth Edition) the word goad ' means, keep irritating or annoying somebody until he reacts.' So also, urge' means to advise or try hard to persuade somebody to do something or to make a person to move more quickly in a particular direction especially by pushing or forcing' such person.Urge forward' means in this context, urge' a person forward'. Thus, a person who instigates another has `to goad or urge forward' the latter, with intention to provoke, incite, urge or encourage doing of an act by the latter.

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A close, combined reading of the meaning of the word `instigation' with the meaning of the terms

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goad' and urge' will reveal that instigation' involves two things. One is a physical act or omission, while the other is a mental act. The physical act or omission involved in instigation' is, goading or urging forward' another. Such physical act of goading can be committed either by words or deed, as the meaning of the word suggests. Goading' can be committed also by any other wilful conduct--may be, by even an adamant silence. Thus, by words, deeds wilful omission or wilful silence also, one can goad a person ie., keep irritating or annoying a person until he reacts.

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So also, the physical act of urging forward' or instigation' involves doing of an act by strongly advising, persuading to make a person do something or by pushing or forcing a person in order to make him move more quickly in a forward direction. Thus, both the physical acts in `goading or urging forward' can be committed by doing some act, either verbal or physical or even by a wilful omission or conduct.

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But, apart from such physical act or omission, one more factor has to be established to constitute instigation'. That is a mental act. While a person instigates another by the act of goading or urging forward', such person must also have, the intention to provoke, incite, urge or encourage doing of an act by the other. Such intention to provoke, incite, urge or encourage doing of an act by the other is an essential factor in `instigation'. A person can be said to have instigated another, if such person, with intention to provoke, incite, urge or encourage the latter to do an act, has goaded or urged forward the other person.

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Applying the said ratio with this case, it is a case that during the time of occurrence, the appellant herein did not provoke or instigate or urge the deceased to commit suicide. The dying declaration itself is very clear that during the time of occurrence, the appellant instigated her son only for getting nose stud from the deceased. The said circumstances show that the appellant did not abet the deceased for committing suicide. In fact, abetment involves the mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court are clear that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no

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option and that act much have been intended to push the deceased into such a position that he/she committed suicide.

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Therefore, the act done by the appellant during the time of occurrence did not term as he instigated the deceased to commit suicide. No circumstances established the fact that at the time of occurrence, the appellant is having any mental process of instigating the deceased for committing suicide. In this regard, the evidence given by P.W.1, is very clear that after the marriage both the deceased and the appellant are living together with full of happiness.

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Accordingly, in the light of the above discussions, this Court comes to the conclusion that for the offence under Section 306 of IPC, the trial Court without considering the above said aspects, only by believing the dying declaration given by the deceased, convicted the appellant, which is not proper.

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In respect of the conviction and sentence awarded for the offence under Section 498A of IPC, at any point of time P.W1, who is the father of the deceased, did not say anything about the cruelty committed by the appellant. Particularly, the evidence given by P.W.1 is not in respect of the dowry demand made by the appellant.

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In otherwise, the cruelty within the meaning of Section 498-A IPC has been explained in the Explanation to Section 498-A. It consists of two clauses viz., Clauses (a) and (b). To attract Section 498-A IPC, it must be established that the cruelty or harassment to wife was to force her to cause grave bodily injury to herself or to commit suicide.

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Applying the said meaning with the case in our hand, the dying declaration given by the deceased is clear that only due to the act committed by the appellant, she was forced to commit suicide. Therefore, I am of the considered opinion that the findings arrived by the trial Court is found correct that the appellant herein has committed the offence under Section 498-A IPC.

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In the result, this Criminal Appeal is partlyallowed and the conviction and sentence imposed upon the appellant/Accused, by the learned Sessions Judge, Magalir Neethimandram (Mahila Court), Coimbatore, in S.C.No.6 of 2011 dated 09.10.2013, is modified as follows:

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“(i) conviction and sentence awarded by the trial Court for the offence under Section 306 of IPC, is set aside.

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(ii) conviction and sentence imposed on the appellant under Section 498A of IPC by the trial Court, is confirmed.

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(iii)The respondent is directed to secure the appellant for the purpose of sentencing him to undergo the remaining period of conviction. It is also directed that the period of sentence already undergone by the appellant shall be set off, as required under Section 428 Cr.P.C.

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(iv) The fine amount, if any, already paid by the appellant/accused, has to be adjusted, for the sentence now provided.”

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Sd/-
Assistant Registrar(CS III)
//True Copy//
Sub Assistant Registrar
rts/ars
To
1. The Sessions Judge,
Magalir Neethimandram
(Mahila Court),
Coimbatore.
2. The Inspector of Police,
All Women Police Station,
Perur, Coimbatore District.
3. The Public Prosecutor,
High Court, Madras.
4.The Judicial Magistrate-VI,
Coimbatore.
5.The Superintendent,
Central Prison,
Coimbatore.
6.The Chief Judicial Magistrate,
Coimbatore.
CRL.A.No.105 of 2014
nrl[co]
srg 21/01/2021

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CRL.A.No.105 of 2014

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Saravanan v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

Saravanan v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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