Allowed

Chandran @ Jayachandran v. State by

Madras HC26 Oct 2021CRL A/374/2015

Case brief

AI extract

What is this about?

Appeal against conviction and sentence for abetment to suicide. High Court acquitted appellant, holding prosecution failed to prove mens rea or intentional instigation. Key witness presence doubted; mere petulant words insufficient for conviction.

What did the court decide?

Criminal appeal allowed; conviction and sentence set aside; appellant acquitted.

Chandran @ Jayachandran Vs State by — Criminal Trial and Appeal | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATE OF RESERVING ORDER DATE OF PRONOUNCING ORDER 16.09.2021 26.10.2021

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CORAM

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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CRL.A.NO.374 OF 2015

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Chandran @ Jayachandran ... Appellant/Accused .Vs.

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The State Rep. by The Inspector of Police, Mettupalayam Police Station.

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... Respondent/Complainant

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PRAYER:-

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Criminal Appeal is filed under Section 374(ii) of Criminal Procedure Code, to set aside the judgment of the Sessions Judge, Magalir Neethimandram (Mahila Court), Coimbatore, dated 17.06.2014, passed in S.C.No.29/2012, in erroneously convicting the appellant herein under Section 306 IPC and sentencing him to undergo seven years rigorous imprisonment and fine of Rs.5,000/-, in default to undergo three months simple imprisonment.

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For Appellant : Mr.M.Saravana Kumar For Respondent : Mr.R.Vinoth Raja Government Advocate

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The matter is heard through "Video Conference".

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2. Convicted sole accused is the appellant herein.

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The respondent police filed final report, after investigation, against the accused in Mettupalayam Police Station in Crime No.493/2011, under Section 306 of IPC. A love marriage between the accused and deceased was solemnized about

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12 years before the date of incident. The accused and the deceased are having three children by name Priya, Jamuna and Titus. Accused never use to give his earnings to the family and used the entire earnings for liquor and always used to beat the deceased and the children as an usual habit. While so on 06.03.2011 at about 5.45 pm, the deceased asked money from the accused for the family necessities for which, the accused abused the deceased to "go and die" and if the deceased died he would be in a peaceful condition. This being the abetment the deceased committed suicide by hanging by using her Saree. Thereby the accused committed an offence under Section 306 of IPC.

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To prove the case of the prosecution, the prosecution has cited totally 20 witnesses and out which P.W.1 to P.W.10 were examined and Exs.P1 to P9 were marked and M.O.1 to M.O.4 were also marked on the side of the prosecution and no witnesses, no exhibits and no M.Os were marked on the side of the defence.

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Based upon the ocular and documentary evidence, the trial Court has held that the charge under Section 306 of IPC is made out. Accordingly, convicted the accused and laid the sentence as stated supra and hence, the appeal.

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6 (a). The learned counsel for the appellant would contend that the reliance placed upon by the Sessions Judge on the evidence of P.W.4 is totally unbelievable and the presence of P.W.4 was never spoken to by the private prosecution witnesses either in Ex.P1/complaint or with the statement recorded under Section 161 of Cr.P.C., and only during the time of trial, P.W.4 is projected, as if, she was present when there was quarrel between the accused and the deceased.

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6(b). The learned counsel also relied upon the decision of the Hon'ble Supreme Court in Gangula Mohan Reddy Vs. State of Andra Pradesh (AIR 2010 SC 377): Amalendu Pal @ Jhantu Vs. State of West Bengal (2010) 1 SCC 707, for the preposition that mere utterance of word "go and die", does not amounts to abetment to commit suicide as defined under Section 107 of IPC and prayed for acquittal.

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6(c). The learned Government Advocate (Crl.side) made a submission in support of the judgment of the Sessions Judge.

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The appellant/accused stands charged for the offence under Section 306 of IPC. The deceased and the accused were initially in love affair with each other and subsequently, the marriage was solemnized between them about 12 years before the date of the incident. Out of the legal wedlock, three children had born viz., Priya, Jamuna and Titus.

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The case of the prosecution is that the accused is habitual drinker and used to beat his wife(deceased) and on the said day, there was quarrel between the husband/accused and wife and the accused alleged to have uttered "unless you go and die, I will not get peace", so she went and committed suicide by hanging.

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P.W.1 is the father of the deceased who had lodged Ex.P1/complaint. On perusal of the lower Court record, it reveals that P.W.1 to P.W.4 were examined in chief, on 08.10.2012, and thereafter, the advocate appointed by the accused has not appeared and the Court has appointed the legal Aid Advocate. The Legal Aid Advocate so appointed has filed the petition under Section 311 of Cr.P.C., to recall P.W.1 to P.W.4 for cross examination. The initial chief examination of those P.W.1 to P.W.4 was recorded on 08.10.2012. The application as stated supra under Section 311 of Cr.P.C., was allowed on 29.08.2013. Witness summons were served. However, on 08.10.2013, P.W.1/father of the deceased was reported dead and therefore, no cross examination was conducted for P.W.1. The finding of the trial Court that since the legal aid advocate could not conducted the cross examination, the evidence of chief examination of P.W.1 should be accepted in toto. The legal aid advocate on his appointment has immediately filed petition under Section 311 of Cr.P.C., and the same was allowed on 28.01.2013, but by then, P.W.1 reported dead on 08.01.2013.

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P.W.2 is the sister of the deceased while P.W.3 is the brother of the deceased. P.W.4 is the daughter of P.W.2 and P.W.5 and P.W.6 are neighbors and P.W.7 is the person who conducted postmortem report and his report is Ex.P2 and final opinion is Ex.P3. P.W.9/Dr.Jayasingh has given opinion on Hyoid Bone that the Hyoid bone is intact and investigation officer is examined as P.W.10.

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Suicide: From the evidence of P.W.9/Dr.Jayasingh who had issued Ex.P6/Hyoid Bone Report, has stated as follows:

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"On dissection and examination: Hyoid Bone Intact. Opinion: No Antemortem injury to Hyoid Bone."

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P.W.7/Dr.Lakshmanakumar, who had conducted postmortem and issued Ex.P2/postmortem certificate along with Ex.P3/final opinion, has observed that the deceased died due to asphyxia.

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On combined reading of medical evidence of P.W.7 and P.W.9 coupled with documentary evidence of Exs.P2, P3 and P6, this Court comes to the conclusion that the deceased Manjula (wife of the accused) died due to asphyxia by hanging and

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committed suicide.

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Crime: The prosecution has come forward with specific allegation that the accused was habitual drinker and used to beat his wife frequently and indulged in domestic quarrel with his wife and thereby, he had driven the deceased to commit suicide.

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The suggestive case of the defence is that P.W.1 to P.W.3 and the deceased who are belong to moyar community while the accused belong to muthuraja community and since the marriage between the accused and deceased was love marriage, the P.W.1 to P.W.3 refused to acknowledge the said fact and only the mother of the deceased (who is not examined either in the Court or during the investigation by the police), has having only contact and since the deceased has conducted intercaste marriage, the private prosecution witnesses have neglected both deceased and her husband and kids and due to poor economical condition, the deceased along with three children wanted to go and live with P.W.1. Since P.W.1 has refused to accept the daughter (namely the deceased) citing some lame excuses, she left with no love from parents, has committed suicide.

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As stated supra, P.W.1 could not be cross examined since he died before the service of witness summon or recall petition at the instance of the legal aid advocate. It is seen from the evidence of P.W.1 that, he on his own, has stated that the deceased has sought the permission of their parents to come and live with them and it was refused by her by citing economical conditions. Due to old age, P.W.1 has expressed he is unable to maintain and manage the deceased and the children and this was one month prior to the incident.

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On close scanning and scrutiny of P.W.1/father, who had lodged Ex.P1/complaint has set the law in motion. P.W.1/father of the deceased has set the criminal law in motion by filing Ex.P1/complaint, he was not cross examined for the reasons stated in the preceding paragraph. It appears that the Court has taken parol evidence of prosecution witness P.W.4 and held as reliable.

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The evidence of P.W.1 clearly shows that the deceased Manjula sought permission to come and live with P.W.1 house but he refused. On evidence, it clearly shows that P.W.1 and other family members have no good relationship with deceased Manjula and she express her willing to come back to P.W.1's house. Although, the complaint referred the date of alleged advice on 06.02.2011, the deposition of P.W.1 does not refer the said date. Similarly, the evidences of P.W.2 also failed to explain the visiting to the deceased house. It clearly shows that the

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deceased Manjula committed suicide only in result of poor behavior by her family members ever after 12 years of intercaste marriage with the appellant.

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When P.W.2 clearly admitted in her cross examination that they have no relationship with appellant family and only person secretly gone to the appellant house is their mother but she has not been examined. There is no evidence regarding presence of P.W.4, (the daughter of P.W.2), in appellant's house at the time of incident. P.W.2 in her cross examination clearly admitted that her mother alone having secret relationship with deceased Manjula. It clearly shows that although inter-caste love marriage was taken place about 12 years back, the deceased Manjula's family did not have good term with her. P.W.1 to P.W.3 clearly admitted that there is no relationship with appellant family till death of Manjula.

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20(a). P.W.5 and P.W.6 are neighbors also clearly admitted that the conflict caused in appellant house is in the nature of ordinary petulance, discord and difference in domestic life that quite common to the strata of the society to which parties belongs. Such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide.

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20.(b) As per evidence of P.W.6 children were playing outside the house, that is P.W.4 not in scene but the incident took place inside the house also assumes significance. However, no explanation is forthcoming on this point from the prosecution and it clearly causes serious doubt as the basis of prosecution case.

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It remains to be stated that P.W.6 one of the neighbor who came to rescue the deceased had deposed that children were playing in front of the appellant's house and he had heard the noise and nature of disputes of ordinary family conflict only. On hearing the hue and cry, they had rushed to the house and at that time, appellant/accused had ascend to the top of house and by removing roofs, he had descend inside the locked house to rescue the deceased. This part of evidence of P.W.6 clearly shows that P.W.4 was not in scene of occurrence and she is only a hearsay witness. At this juncture, it is relevant to note that even, P.W.4 did not speak about her presence in the scene of crime at the time of incident. The statement of P.W.4 during investigation and before the Court at the time of trial is totally contradictory. Although, P.W.4 could depose that deceased was found to be beat up by accused. However, the injuries found in deceased body as per medical evidence of P.W.7 is found to be otherwise. Thus, this Court finds that the version of P.W.4 regarding alleged physical beat and causing

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injury to the deceased before hanging, is found to material contradiction to medical evidence of P.W.7/Doctor and Ex.P2/Medical Report.

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As stated supra, the Sessions Court has taken the evidence of P.W.4 in entirety. From the independent evidence of P.W.5 and P.W.6, I find that presence of P.W.4 in the alleged scene of the occurrence is found to be doubtful and her evidence that the accused said to have uttered the words in a heated moments is appears to be tutored.

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Yet another point is that P.W.1/father of the deceased lodged Ex.P1/complaint. As per the statement, on the information received from P.W.4. However, on perusal of Ex.P1/complaint and Ex.P7/FIR, I find that there is no alleged statement of the accused uttering "go and die". Furthermore, neither P.W.2 nor P.W.4, did not informed the same at the time of recording of statement under Section 161 of Cr.P.C., by P.W.10/Investigation officer.

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It appears that after 20 months from the date of occurrence, only during the time of trial on 08.10.2012 both P.W.2 and P.W.4 have said to have deposed only during the trial that the accused had uttered "go and die", in the sense that "unless the deceased dies, he will not get peace". In this regard, the answer elicited from the cross examination of P.W.10, assumes significance.

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For the better appreciation, the answer elicited in the cross examination of P.W.10 are extracted hereunder:

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“F/mwpf;ifapy; ehd; vjphp jdJ kidtpia ghh;j;J eP capnuhL ,Ug;gij fhl;oYk; brj;J bjhiye;jhy; jhd; epk;kjp jhd; vd;W Fwpg;gpl;Ls;nsd; vd;W brhd;dhy; rhp jhd;/

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kidtpia ghh;j;J eP brj;J bjhiye;jhy; jhd; vdf;F epk;kjp vd;W brhd;djhf vJt[k; Fwpg;gpl;L Twtpy;iy vd;W brhd;dhy; rhpjhd;/

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,e;j tHf;fpd; jdpg;gl;l rhl;rpfs; midtUk; rhl;rp ntYr;rhkp. utpr;re;jpud; Mfpnahh; rk;gt ,lj;jpd; g{l;il cilj;J cs;ns brd;W Jhf;fpy; bjh';fpf; bfhz;oUe;j bgz;iz kPl;ljhf Twpa[s;shh;fs; vd;why; rhpjhd;/

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mrh/1 uhjhkzp vdJ tprhuizapy; rk;gtj;jpw;F Kd;g[ vjphp jdJ kidtpia ghh;j;J eP brj;J bjhiye;jhy; jhd; vdf;F epk;kjp vd;W Fwpg;ghf Twtpy;iy/ mrh/4 g;hpj;jp vd;fpw fhnthp rk;gtj;jpw;F Kd;g[ vjphp jdJ kidtpia moj;J bfhz;oUe;jjhf vdJ tprhuizapy; Twpa[s;shuh vd;why; mt;thW vJt[k; Fwpg;gpl;L Twtpy;iy/ mnjnghy; nkw;go fhnthp vdJ tprhuizapy; rk;gtj;jpw;F Kd;g[ vjphp jdJ kidtpia moj;jjhy; ,we;J nghdtUf;F if.

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Kfk; kw;Wk; bjhilapy; fhak; Vw;gl ; ljhf vJt[k; Fwpg;gpl;L Twtpy;iy/”

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In view of the answer elicited in the cross examination of P.W.10, I find that P.W.2 had not informed the alleged statement of the accused during the investigation nor in her statement under Section 161 of Cr.P.C., before P.W.10/ investigation officer. It is projected that P.W.4 as an eye witness for occurrence of heated words, however, absolutely there is no evidence regarding her presence in the scene of the occurrence. Even as per the evidence of P.W.2 (mother of P.W.4), she admitted that on information, received, they went and saw including P.W.4 also assumes significance and relevant. Therefore, in short, from the version of independent witness P.W.5 & P.W.6, the alleged presence of P.W.4 is doubtful and further, there is no iota a reference in Ex.P1 and Ex.P7, as to the presence of P.W.4. Besides, P.W.1 has not whispered anything regarding P.W.4. Thus, it cause serious doubt as to the presence of P.W.4 in the scene of crime.

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Thus, I find that P.W.4 is projected as occurrence witness to speak about alleged utterance of words on heated moment, prior to the incidence. For the reasons recorded supra, I find that the presence of P.W.4 is highly doubtful and unbelievable. Even to go by the words, said to have been uttered by the accused to the deceased, I find that words so uttered in the fit of anger or emotion without intending the consequence to actually follow, cannot said to be instigation as laid down by the Hon'ble Supreme Court in Ramesh Kumar vs. State of Chhattisgarh reported in AIR 2001 SC 3837: (2001) 9 SCC618.

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It remains to be stated that there is nothing on record to show the appellant/accused instigated, compelled or goaded the deceased to commit suicide. It remains to be stated that from the evidence of P.W.3, those words are only in the nature of ordinary petulance in the house, the deceased is already in hopeless condition due to the refusal of rejoining with family by P.W.1, who had refused to keep the deceased and the children.

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Ordinary family discord and domestic petulance will not attract Section 107 IPC. This principle affirmed by the Supreme Court in Gangula Mohan Reddy Vs. State of Andhra Pradesh, A.I.R.2010 S.C. 327 and Amalendu Pai @ Jhantu Vs. State of West Bengal, A.I.R. 2010 S.C.512 and thus, this Court finds that the evidence of P.W.4 as to the alleged presence is found to be highly unbelievable and hence, I find that the lower Court has committed an error in not looking into the answer elicited in the cross examination of P.W.5 and P.W.6 and also the cross examination of the investigation officer/P.W.10, as extracted supra. From the answer elicited from the above said prosecution witness goes to show that the presence of the P.W.4

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is not proved from the prosecution and her version is found to be at material contradictions on material particulars in connection with charges and hence, her version totally unsafe to place reliance. So also is to the answer elicited from the mother of P.W.4 namely P.W.2 and the words uttered by the accused, even to take on the face value is not satisfy the criteria of 107 IPC.

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For invoking the charge of "abetment to commit suicide", the 'intention to do' must be proved. Under Section 306 IPC, the offence requires mens rea (guilty mind) and there must be intentional doing/aiding the commission of suicide. In the instant case, there was nothing on record to the effect of forcing her to commit suicide. I find no positive evidence on record to prove the guilty mind of the appellant to cause abetment of suicide is present.

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In view of the decision held by the Hon'ble Supreme Court, this Court finds that the charge under Section 306 of IPC is not proved by the prosecution beyond reasonable doubt. By operation of law, benefit of doubt goes to the accused. Giving benefit of doubt to the accused, this Court has no other opinion to hold that the prosecution having failed to prove the charge of Section 306 of IPC against the accused, in the manner known to law and hence, the appellant/accused is entitled for acquittal.

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In the result, the criminal appeal is allowed. The conviction and sentence as against the appellant in the judgment dated 17.06.2014 in S.C.No.29 of 2012 passed by the learned Sessions Judge Magalir Neethimandram (Mahila Court), Coimbatore, is set aside. The appellant/accused is acquitted from the charge under Section 306 of IPC. The fine amount, if any, paid by him is ordered to be refunded to him. The bail bonds executed by him, shall stand terminated/discharged.

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Sd/-

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Assistant Registrar(CS VIII)

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//True Copy//

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Sub Assistant Registrar

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