Partly allowed

S.Senthil Kumar @ Gunasekaran v. the Inspector of Police

Madras HC27 Oct 2021CRL A/389/2015

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, acquitting the appellant of abetting suicide under Section 306 IPC due to a fatal dying declaration and non-examination of a material witness. The court upheld the conviction under Section 498-A IPC, equitably awarding the sentence to the period already undergone.

What did the court decide?

Conviction and sentence under Section 306 IPC set aside; conviction under Section 498-A IPC sustained; sentence equitably set off against time served.

S.Senthil Kumar @ Gunasekaran Vs the Inspector of… — Matrimonial and Divorce | Madras HC (2021)

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BAIL SLIP

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The Appellant/Accused namely S.Senthil Kumar @ Gunasekaran, S/o.Sivasamy Gounder, was directed to be released on bail as per the order of this Court, dated 03/06/2016 in M.P.No.1 of 2015 in CRL.A.No.389 of 2015 on the file of this Court.

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[JUDGMENT PRONOUNCED ON : 27.10.2021]

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CORAM

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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CRL.A.NO.389 OF 2015

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S.Senthil Kumar @ Gunasekaran ... Appellant/Accused

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.Vs.

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The State through, The Inspector of Police, Kinathukadavu Police Station, Coimbatore District. (Crime No.608 of 2011)

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... Respondent

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PRAYER:-

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Petition filed under Section 374 (2) of Cr.P.C, to call for the records in S.C.No.158 of 2013 on the file of the learned Sessions Judge, Mahila Court at Coimbatore allow the appeal, set aside the judgment and order of conviction dated 27.05.2015 and acquit the appellant.

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For Petitioner : Mr.R.Sankarasubbu

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For Respondent : Mr.R.Vinoth Raja Government Advocate (Crl. Side)

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JUDGMENT

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The convicted sole accused is the appellant herein.

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This Criminal Appeal is filed under Section 374(2) Cr.P.C against the judgment of the learned Sessions Judge Mahila Court at Coimbatore dated 27.05.2015 in S.C.No.158 of 2013 finding the appellant guilty for offences under Section 498-A and 306 and convicting and sentencing the appellant under Section 235 (2) Cr.P.C to undergo Rigorous Imprisonment for 7 years and also fine of Rs.10,000/- in default to undergo 6 months Simple Imprisonment for offence under Section 306 and further directing the sentences to run concurrently and set off under Section 428 Cr.P.C.

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The case of the prosecution in brief is that the accused and the deceased are husband and wife and having two children and the accused was doing self business and used to scold his wife now and then and 10 days prior to 22.04.2011, the accused has married as a solemnization second marriage with one Poongodi who is a residing of Kothampadi, Erode District. In this connection, the same was questioned by the wife (deceased sumathi) for which, the accused has uttered filthy language and uttered "eP brj;J bjhiye;jhy;jhd; vdf;F epk;kjp. rht[o"(I will get piece only if, you die), and unable to bare the such utterance of words on 22.04.2011 at about 1.30 noon, she committed suicide in the bathroom of her house in Door No.2/38, Kodangipalayam by selfemolution and subsequently, she was admitted on Government Hospital and died on 23.04.2011.

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The suggestive case of the defence is that the quarrel between the husband and wife are in the normal petulance of the family life and no such allegations or solemnization of any second marriage as projected by the prosecution and 10 days before the incident. In the newspaper, it is published that the deceased (wife sumathi) along with one Appu was remanded in a case under NDPS Act and granted bail wherein, they have not shown as living together in the very same address and that is the cause of the quarrel between the husband and wife and has not stated as projected by the prosecution.

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The respondent police filed a charge sheet against the accused in Crime No.608 of 2011 alleging that:

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(i) On 22.04.2011 when the respondent police was on duty his special Sub-Inspector had received a statement from one Sumathi who was admitted with burn injuries in ward at Coimbatore Government Medical College Hospital.

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(ii) As per the statement, the victim Sumathi, was married to the appellant before 15 years from the date of the incident/occurrence. Further from the date of the marriage, the appellant will not be coming home for 10 to 15 days by stating that he is doing silk (sarees) business. When this issues were raised to the accused by his wife (victim Sumathi) the appellant has started harassing and fighting with his wife.

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(iii) Later, the deceased Sumathi came to know that the appellant got married with one Poongodi who is a residing of Kothampadi, Erode District as a second wife. While this is so on 22.04.2011 at about 10.00 a.m. When the appellant was in house the victim Sumathi again raised this issue which resulted in a wordy quarrel between them and the appellant had uttered filthy language and had beaten the victim.

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(iv) On the same day at about 1.30 p.m the victim Sumathi poured kerosene on her whole body and had lit a matchstick and get herself on fire inside the bathroom by locking the door of her house.

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(v) Further one Kathiravan friend of the appellant had rescued the victim and she was admitted in the Coimbatore Government Medical College Hospital in an emergency situation battling for her life after sustaining burn injury behind the body.

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(vi) After battling for life, she had succumbed to the burn injuries on 23.04.2011. Hence, the respondent had filed the charge sheet against the appellant/accused for the offence punishable under Section 498-A and 306 I.P.C on 03.01.2012 and the charges were framed against the accused for offences under Section 498-A and 306 I.P.C.

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To prove the case against the accused, the prosecution had examined 8 witnesses as P.W.1 to P.W.8 and marked exhibits as Exs.P1 to P11 and produced 1 material object marked as M.O.1. The accused had examined two witnesses on his side as D.W.1 and D.W.2, and no documents have been marked in defence.

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7.After trial, the learned Sessions Judge (Mahila Court) at Coimbatore had convicted and sentenced as stated supra.

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The learned counsel for the convicted accused/appellant has raised following points:-

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(i) In this case, AR recorded by Doctor at her admission to Government Hospital should be treated as first dying declaration;

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(ii) the second dying declaration is said to be the complaint given during the treatment of the victim (since died)

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(iii) the statement given by the deceased prior to her death to the learned Judicial Magistrate was marked as Ex.P6. However, AR copy was not produced nor marked. The dying declaration was not proved in the manner known to law and suffers irregularity and relied upon the judgment reported in Ekambaram Vs. Vethachalam and others in1996 (1) LW Criminal 222

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(iv) The contention of the appellant counsel is that the main grievance of the deceased is that the accused has married one Poongodi. Merely because a person has solemnized the second marriage that could not be said to have abetted or induced, the wife to commit suicide. Also, relied on the elicited during the cross-examination of PW2/mother of the deceased, where admitted the deceased was arrested in NDPS case in connection with the supply of Ganja along with one Appu @ who was detained under the Goondas Act and the quarrel was only this connection and not otherwise.

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The learned counsel for the appellant also relied upon the evidence of D.W.1 and D.W.2, who are the sons of the deceased and the accused, which is to the effect that there was no abetment or inducement to commit suicide.

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The learned Government Advocate (Crl.Side) has made submission in support of the judgment of the Session Court.

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Reliance is placed by the learned counsel for the appellant that a mere fact of performance of second marriage or extra marital affair is not falls under Section 306 since the same does not amount to abatment of suicide by relying upon 2019 (3) SCC Crl.69 [Wasim Vs.State (NCT of Delhi)]

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Heard the rival submissions and perusing the documentary evidence placed before the Sessions Court.

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P.W.1 Raj is the brother of the deceased who convicted who are person at the time of recording by oral complaint by the Inspector of Police Exs.P1 and P2. P.W.2 is the mother of the deceased. P.W.3 and P.W.4 attestor of Ex.P7 Observation Mahazar have turned hostile. P.W.5 is the Inspector of Police deposed regarding receipt of Ex.P1 and obtaining the signature of P.W.1 and registration of Ex.P3 F.I.R. P.W.6 is the Doctor who was conducted the Post-mortem Report and gave the opinion under Ex.P4 and final opinion is Ex.P5. P.W.7 judicial magistrate who had recorded the dying declaration of the deceased and marked Ex.P6 dying declaration recorded by him. P.W.8 is a Investigation Officer deposed regarding discharge of his

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official duty on commencement of investigation officer after receipt of F.I.R and calculation of the document and filing of the charge sheet.

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It remains to be stated that on behalf of accused, the sons of the deceased namely the accused were examined as D.W.1 and D.W.2.

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P.W.1 is the only an hearsay witness. P.W.2 is the mother of the accused who could deposed that there was a quarrel between deceased daughter and accused and hence she came to know and death of her daughter and the marriage between the accused and the deceased has taken place 20 years before the recording of the evidence and her evidence is that since the accused has alleged to have married second time and there was a dispute and that her daughter has committed suicide and same is only hearsay. Certain answers were elicited in the cross-examination of P.W.2 which will be discussed infra.

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The prosecution placed reliance upon the statement given to police under Ex.P1 and the dying declaration Ex.P6 recorded by the learned Judicial Magistrate P.W.7. As per the dying declaration so many new factors have came into incorporated besides new improvement has also been incorporated along with cell number.

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As pointed out by the appellant counsel, I find lot of infirmity in the said dying declaration. For the reasons best known, though it is a specific case of the prosecution that one Mr.Kathiravan who is a friend of the appellant who was said to have been present all along throughout day with deceased and who has also accompanied the deceased, while she was shifted from the home to the Government Hospital in the Ambulance was not examined, for the reasons best known to the prosecution. Non- examination of the said Kathiravan who is stated to be available at the scene of the occurrence and who had rescued the deceased and also accompanied the deceased in the ambulance till the Government Hospital is also creates doubt as to the nature of the case projected by the prosecution. In view of the specific fact discussed in the subsequent paragraphs.

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The respondent police suppressed earliest document that came into existence, in this case, namely the A.R copy which was issued by the Coimbatore Medical Hospital.

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Admittedly, the admission of the deceased at Medical College Hospital has been admitted by P.W.8. Non-production of the document causes serious doubt and suspicion in the prosecution theory. The said Kathiravan along with other family member have admitted the deceased in the coimbatore hospital

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were Ex.P1 was came into existence. P.W.1 is a only hearsay witness. He does not know about the occurrence even as alleged by the prosecution. The another person who said to have been present, on that day in the scene of the crime (viz., house of the accused) is two sons who are examined as D.W.1 and D.W.2 and going by the witnesses available on record. It is the deceased accused and Kathiravan and two sons D.W.1 and D.W.2 are available on that day in the house of the accused. When the deceased alleged to have poured kerosene on her body and went to the bathroom to her house.

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As stated supra, in the Ex.P6 Dying Declaration there is a lot of infirmity with regard to the name of the husband, family member of the alleged second wife and also the the cell number said to have been stated by the deceased. Since, it is in the description of Dying Declaration, I am not expressing any opinion except to say that the name of the accused viz., the name of the husband of the deceased is found to be at vital variation in more than 3 places. Furthermore, as per the dying declaration, the appellant/accused and one Poongothai with whom, the appellant has alleged to have had illicit relationship was arrayed as accused No.2. Subsequently, the respondent police conducted a complete investigation and after recording the statement from the witnesses have deleted the said Poongothai in the charge sheet saying that she was noway connected with the said offence.

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As pointed out by the appellant counsel there is improvement in the statement recorded under Ex.P1 complaint and Ex.P6 dying declaration.

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yet another point is that though a cell phone number was said to have been told by the deceased in Ex.P6 dying declaration, no steps have been taken by police as to owner of the cell number was not identified by the Investigation Officer has admitted in his cross examination :-

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"Rkjp kUj;Jtkidapy; nrh;e;jjw;fhd tpgj;J gjpntL efiy ePjpkd;wj;jpy; jhf;fy; bra;atpy;iy/ kuz thf;FK:yj;jpy; xU ifg;ngrp vz; Fwpj;J tptuk; cs;sJ/ me;j vz;dqf;F brhe;jf;fhuh; ahh; vd;W ehd; g[yd; tprhuiz nkw;bfhs;stpy;iy/"

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Admittedly, the cell number mentioned in the dying declaration-Ex.P6 was not identified as to whom it belongs to though the Investigation Officer claimed that he had collected the call details that came to the deceased cell number, however, for the reasons not known, he not chosen to file the same and consequently it was not marked before the trial Court. Had there been any phone call from the said cell number to the cell number

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of the deceased as projected by the prosecution, there could be no impediment for the prosecution to file the call details that was said to have been collected by the Investigation Officer.

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This Court is conscious of the fact that the statement

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in the dying declaration does not require corroboration, if inspire of the confidence of the Court. As stated supra, Ex.P6 dying declaration is full of infirmity. At 3 places, the name of the accused namely, the husband of the deceased was different. At one place, the name of the accused was mentioned as Gunasekaran. In more than two places, it is mentioned in Ex.P6 that the said Gunasekaran is wife of one Poongothai absolutely there is no any positive evidence much less any evidence to link that the name Gunasekaran (as mentioned in Ex.P6) is that of the accused. At this juncture, even under F.I.R, the name of the accused was mentioned only as a Senthilkumar which is based upon Ex.P1 complaint. However, for the reasons best known, the name has been described as Senthilkumar alias Gunasekaran in the final report so also in the judgment. The Investigation Officer has not filed any memo for adding a alias name. These factors, though not singly by itself but on an cumulative reading lapse and laccuna in records, comes serious doubt as to the alleged involvement of accused as projected by the police.

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Be that as it may. As pointed out, there are lot of infirmity in Ex.P6 dying declaration which is said to have been given by the deceased to the learned Judicial Magistrate P.W.6. It is not only the name of the husband of the deceased but also he was described as husband of some one else. The person who said to have been called over phone from the cell number mentioned therein, it has not tally with the name of the accused also assumes significance.

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At this juncture, the evidence of D.W.1 and D.W.2 which lends of support of the suggestive case of the prosecution. As stated supra, on the fateful day the accused and the deceased and one Kathiravan along with D.W.1 and D.W.2 were present in the home. It is a specific evidence of D.W.1 and D.W.2 that the mother namely the deceased have entertained suspicion that her husband (the accused) is having illicit relationship with some one and with this suspicion in mind she had fought with accused and there is no whisper regarding any abatement to suicide as projected by the prosecution. Thus, this Court finds that wife of Senthilkumar died due to the suicide by self-emmoluation at bathroom of his house.

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Hence in view of the infirmities contained in Ex.P6 and in view of the non failing of the Accident Register which is admittedly available in the Coimbatore Medical College at the time of the admission by the deceased and non-examination of

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Kathiravan who was all along present deceased with on that day in house of the deceased caused serious doubt to the prosecution theory.

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The deceased would appear to have died of BURNS the Viscera doesnot any poison.

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In view of the specific evidence of the D.W.1, D.W.2 who are admittedly said to be present, I find that the prosecution has not let in any positive evidence to prove the charge under Section 306 I.P.C and hence, the evidence adduced by the prosecution is to infirm to substantiate the charge under Section 306 consequently the conviction and sentence passed by the sessions court held to be unsustainable in law.

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The finding rendered by the learned Sessions Judge at paragraph that the evidence of D.W.1 and D.W.2 support the prosecution is nothing but perverse what was recorded by the sessions judge at this paragraph is not found in any wherein evidence of the D.W.1 and hence, the finding by the learned sessions judge is hereby vacated.

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In view of the discussion in the preceding paragraphs that this Court find that Ex.P6 is suffers from infirmities and improvement of various details that are not found in Ex.P1 complaint. Especially, the cell phone number said to have been mentioned which was not at all mentioned in Ex.P1 complaint as admitted by the both the police witnesses P.W.5 and P.W.8 and non-examination of Kathiravan who has said to have present all along in the scene of the crime and also took her and admitted in the hospital was not at all interrogate by the police nor any statement has been recorded under Section 161(3) of Cr.P.C. cause serious doubt on prosecution version.

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Hence, in this view of the matter the conviction and sentence passed under Section 306 I.P.C is hereby set aside.

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The learned Sessions Judge also convicted the accused under Section 498-A and in view of the sentence passed under Section 306 no separate session was passed for the offence under Section 498-A. In order to appreciate the charge under Section 498-A, the suggestive case of the defence as discussed in the above assumes significance.

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Taking note of the fact that the quarrel has picked up by the wife as spoken to by D.W.1 and D.W.2, sons of the deceased and the accused in connection with the suspicious character, there was a quarrel and she committed suicide and hence in view of the answer elicited in the cross-examination of P.W.2 and even as per the suggestive case of the defence that

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due to the said publication of the factum of previous conduct of the accused, being arrested in the NDPS case and remanded with co-accused Appu and both of them were granted bail by showing that they were living together in the very same address and thereafter on coming to know about the past history of cohabitation between the deceased and the other co-accused in NDPS case there was a quarrel. There was heated exchange of words resulted in wife committed the suicide. Hence, I find that the charge under Section 498-A is proved in the manner known to law. since the trial Court has not granted any separate sentence as he chosen to give sentence only for 306 which was set aside, for the reasons stated in the preceding paragraphs. This Court taking note of the answer and reply given at the time of questioning on sentence of the accused by the Sessions Judge. The learned counsel for the appellant could contend that the appellant was already in jail for more than one year and hence the period of sentence already undergone by the accused in jail is treated as a sentence for the charge under Section 498-A.

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In the result,

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(i) This Criminal Appeal is allowed.

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(ii) The order of conviction passed by the learned Sessions Judge, Mahila Court, Coimbatore in S.C.No.138 of 2016 for the charge under Section 306 I.P.C is hereby set aside.

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(iii) However, the conviction for charge under Section 498 (A) I.P.C is hereby sustained and the sentence for the charge under Section 306 I.P.C is set aside.

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(iv) While since no separate sentence was passed by the Sessions Judge and hence the sentence under Section 498 (A) I.P.C is awarded to the period already undergone.

Sd/-

Assistant Registrar

//True Copy//

Sub Assistant Registrar

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nvi

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