Partly allowed

Gudipalli Siddartha reddy v. State-C.B.I.

Telangana HC28 Dec 2011CRLA/405/2004

Case brief

AI extract

What is this about?

In a suicide pact where an accused and a girl consumed poison, the High Court held the survivor guilty of abetment of suicide under Section 306 IPC via illegal omission and encouragement. The Court distinguished euthanasia cases, affirmed conviction against a request for retrial on murder/rape charges due to procedural lapses by the complainant, and reduced the imprisonment term to two years while increasing the fine.

What did the court decide?

Convictions for abetment of suicide and attempt to suicide confirmed but sentence reduced from five years to two years rigorous imprisonment; fine increased to Rs.50,000; total fine to be partly paid as compensation to the de facto complainant.

Gudipalli Siddartha reddy Vs State-C.B.I. — Murder and Culpable Homicide | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR

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CRIMINAL APPEAL NO.405 OF 2004 AND

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CRIMINAL REVISION CASE NO.2055 OF 2004

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COMMON JUDGMENT:

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Appellant (hereinafterwards referred to as the accused) in Crl.A.No.405 of 2004 is accused in Sessions Case No.88 of 2003 on the file of the Court of Metropolitan Sessions Judge, Hyderabad (trial court). He was tried on two charges i.e. one under Section 306 IPC (abetment of suicide) and the other under Section 309 IPC (i.e. attempt to commit suicide).

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2. The trial court after considering the evidence by its Judgment dated 23.02.2004 convicted the accused of both the charges and sentenced him to rigorous imprisonment for five years and to pay a fine of Rs.5,000/- on the first count and one year simple imprisonment and a fine of Rs.1,000/- on the second count with default clause prison sentences for non-payment of fines. It however directed both the substantive sentences of imprisonment to run concurrently. Questioning the said judgment, the accused filed this appeal.

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3. On the other hand P.W.1 Sarojini Devi the de facto complainant in the said case who is the mother of the deceased filed Crl.R.C.No.2055 of 2004 for enhancement of sentences to the maximum imposable for the count under Section 306 IPC and the grounds of revision also contain a prayer for re-trial. As both the matters pertain to same case they are taken up for disposal by this common judgment. As the whole matter is at large before this court in criminal appeal it has to be considered in detail.

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4. Sri C.Padmanabha Reddy, the learned senior counsel appearing

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for the accused, Sri P.Kesava Rao, the learned standing counsel for the CBI, which is the investigating agency in this case, and Sri A.Satya Prasad, the learned senior counsel appearing for the de facto complainant who is the petitioner in the revision have been heard at length. The following facts as can be seen from the evidence and their arguments are not in dispute.

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5. The deceased by name Ms.Prathyusha and the accused both residents of Hyderabad were college mates in Gouthami Academy Junior College at S.R. Nagar, Hyderabad, when they were studying Intermediate in the year 1993. They fell in love and wanted to marry at a later stage in life. The contacts between the accused and the deceased continued till the death of the deceased. P.W.1 Smt.Sarojini Devi (de facto complainant) is the mother of the deceased and though she initially opposed the above marriage, she agreed for it subsequently. In the meanwhile the accused entered into some Engineering course and the deceased chose a career as a heroine in feature films. It is not necessary to go into these details, but by the date of her death the deceased became a recognised heroine in feature films and was also having her own earnings.

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6. The parents of the accused were however opposed to the marriage and his mother even threatened the accused that she would commit suicide if he went ahead with his proposal to marry the deceased and they were also taking steps to effectively prevent the accused from meeting the deceased, but the accused continued in meeting the deceased either at her instance on some occasions and on his own on some other occasions. By February 2002, the opposition from the parents of the accused for the marriage became very stiff.

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7. It may then be noted that while matters stood thus on the morning

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of 23.02.2002 the accused and the deceased had a talk on phone and he told her that his parents were opposed to their marriage and the threats of his mother. On that day i.e. 23.02.2002 in the evening at about 5.00 p.m. the deceased along with her cousin i.e. P.W.2 Prafullasri went to a beauty parlour called Ferry’s Beauty Parlour at Panjagutta, Hyderabad for some facial brush up as she (deceased) was already booked for a Kannada feature film and was to leave for Bangalore on the morning of 24.02.2002. The other details are not necessary.

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8. It may then be noted that on the evening of 23.02.2002 both the accused and deceased at the instance of latter met at the aforesaid beauty parlour around 5.00 PM or so and they both left together from that place in the car of the accused. This is evident from the deposition of P.W.2. Subsequently on the same day in the evening about at 7.30 p.m. or 8.00 p.m. both of them went to Care Hospital in Banjara Hills after consuming poison. Both were admitted in the said hospital. The condition of the deceased became serious and she died on the morning of 24.02.2002 in the said hospital while undergoing treatment. It is stated that the condition of the accused was also serious but he ultimately recovered and was discharged from the hospital on 09.03.2002. This part of the case is evident from the deposition of P.W.13 and P.W.10 the doctors of Care Hospital. Initially the case was registered in the Banjara Hills Police Station and subsequently the investigation was taken over by the CBI police.

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9. The evidence of P.Ws.1 to 38 examined by the prosecution and Exs.P.1 to 64 documents filed by it discloses the above facts which are not in dispute. M.O.1 is Novacron bottle that is a pesticide bottle and M.O.4 is a knife and both these items are said to have been purchased by the accused apart from a coca-cola bottle which is said to have been used by both the accused and deceased for consuming the above poison

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by mixing it in coca-cola. M.O.4 knife is said to have been purchased for opening MO.1 poison bottle.

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10. Initially the post-mortem examination on the body of the deceased was conducted by one Dr.B.Munuswamy, the then Professor of Department of Forensic, Gandhi Medical College, Hyderabad and Ex.P.51 post-mortem report dated 25.02.2002 was given by him. This Ex.P.51 report shows that the death of the deceased was homicide caused by asphyxia due to manual strangulation. Subsequently the Government of Andhra Pradesh through Ex.P.50 G.O.Rt.No.174, Health, Medical and Family Welfare (N1) Department, dated 05.03.2002, constituted a committee of three doctors i.e. P.W.31 Dr.M.Narayana Reddy of Osmania Medical College, Dr.Vijaya Kumar of Sidharth Medical College and Dr.Satyavathi, the then Superintendent of Maternity Hospital, Nayapul, Hyderabad to submit a report about the cause of death of the deceased. The said committee gave its report marked as Ex.P.52 to the effect that the deceased died of organophosphate poisoning and that there was no evidence of manual strangulation and also sexual assault prior to the death of the deceased. This was relied upon by the CBI in prosecuting the accused.

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11. Subsequently the CBI Police consisting of P.Ws.36 and 37 Inspectors and P.W.38 Deputy Superintendent of Police investigated into the matter and the CBI ultimately filed the charge sheet against the accused for the aforesaid two offences under Sections 306 and 309 IPC.

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12. The trial court discussed the evidence in detail and concluded that having loved the deceased and having been loved by her, the accused did not come up to her expectations for marriage and he procured M.O.1 Novocran pesticide and coca-cola and mixed the poison with coca-cola and made the deceased to consume it and therefore aided and abetted

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her in the commission of suicide and he also consumed it to commit suicide. On this finding it convicted the accused of both the offences i.e. under Sections 306 and 309 IPC. In fact, the prosecution case was also in substance the same and the trial court accepted it.

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13. It has now to be examined whether the prosecution case on both the charges can be accepted as proved beyond doubt on evidence. The questions raised by the de facto complainant in her revision are proposed to be taken up after examining the above aspect.

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14. The admitted facts have already been set out supra. It may be noted that after leaving the beauty parlour at Panjagutta as spoken to by P.W.2, there is no evidence to show what transpired between the deceased and the accused on the evening of 23.02.2002 till both of them again reached the Care Hospital by about 8.00 PM and told the doctors there i.e. P.Ws.13 and 10 that they both consumed poison. Thus there is no evidence to show that of the accused and the deceased who goaded the other to consume poison first and who consumed what quantity of poison. Thus no findings can be given on the above two questions.

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15. To repeat, the medical evidence consisting of P.W.13 and P.W.10 would only show that both the accused and the deceased consumed poison on the evening of 23.02.2002 and Ex.P.52 post mortem report of the expert committee would show that the deceased died of poison. It is however clear from the evidence of P.W.34 D.Anil Kumar who was at that time a sales man in a pesticides shop called Revathi Agencies at Hyderguda, Hyderabad, that the accused purchased M.O.1 poison bottle from that shop on the evening of 23.02.2002 and the said witness also identified the accused as the person who purchased it in a subsequent test identification parade. It may be noted that when a boy and a girl who are in love go out together in a car, normally the human tendency would

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be that the boy would step out of the car and will make purchases such as cool drink or other eatables when they decide to consume them on the road side in the car. Going by the same human tendency the prosecution case that the accused stepped out of the car and bought M.O.1 poison, M.O.4 knife to open the same poison bottle and also cocacola can be accepted. The evidence of P.W.13 and P.W.10 also would show that if poison is consumed especially of the kind mentioned in this case i.e. novocran pesticide it will be showing its effect one hour after its consumption.

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16. It will also be found from the evidence of P.W.10 that a poison will have more deadly effect on a female body than on a male body because of anatomy reasons and the effect may be more deadlier when it is consumed on an empty stomach. It is not necessary to go into the above details but the evidence looked from any angle would show that both the accused and the deceased consumed poison on the evening of the fateful day and thereupon reached the hospital together by about 8.00 PM. The above circumstances show that after consuming of poison both had time to reach the hospital and the accused was also in a position to drive the car to the hospital.

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17. Sri Kesava Rao the CBI counsel pointed out two circumstances to show that the accused must be held guilty of abetment of the suicide. The first is that the deceased was an upcoming film actress and had considerable earnings by 23.02.2002 and she was to go to Bangalore on 24.02.2002 morning in connection with her assignment in a Kannada feature film and therefore she could not have and had no intention to commit suicide as she was interested in her career. The second is as disclosed from the evidence that it was the accused who purchased the poison bottle and the coca-cola and therefore he must be held to have abetted her suicide though he also consumed poison.

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18. On the other hand, the contention of Sri C.Padmanabha Reddy is that as disclosed from the evidence the only inference that can be drawn is that both the accused and the deceased voluntarily together consumed poison to end their lives in a suicide pact out of dejection from the opposition to their marriage from the parents of the accused and therefore in such a situation especially when the accused also consumed poison to commit suicide he cannot be held guilty of abetment of suicide by the deceased. It has now to be seen which of the above contentions can be accepted on evidence.

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19. From the evidence and the admitted facts which are already mentioned, only one conclusion is possible in my opinion and that is that since the parents of the accused were opposed to their marriage the accused and the deceased have entered into a suicide pact and consumed poison perhaps with the belief that in death none can separate them.

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20. It would now be useful to see Section 107 of IPC which defines “abetment” for application of Section 306 IPC and that reads as follows. “Section 107 - Abetment of a thing:- A person abets the doing of a thing, who:—

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First:-- Instigates any person to do that thing; or

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Secondly:— Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

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Thirdly:-- Intentionally aids, by any act or illegal omission, the doing of that thing.

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Explanation 1:— A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

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Illustration

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A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A, that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

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Explanation 2:-- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”

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21. The first and third parts of the main Section 107 IPC are more relevant here. The first part says that a person abets the doing of a thing if he instigates any person to do that thing and the third part says that it would be abetment if a person intentionally aids another, by any act or illegal omission, the doing of that thing. The words “intentionally aiding by any act or illegal omission” assume importance in this case. It may be noted that there was acquaintance between the accused and the deceased right from 1993 onwards and both decided to marry. In such a situation it would, in my opinion, be against evidence and the matters placed before the court to conclude that the accused would have purchased M.O.1 poison bottle, coca-cola bottle and M.O.4 knife without the consent of the deceased and the fact that both of them consumed poison only fortifies that whatever happened regarding consumption of poison by both happened with the consent of both. Therefore the second contention of Sri Kesava Rao that since accused purchased the poison bottle he alone must be held to have abetted the deceased in committing suicide cannot be accepted, though as will be presently seen, he cannot escape from liability of abetment of suicide by the deceased for different reasons which may include the purchase of poison also by him.

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22. Regarding the first contention of Sri Kesava Rao, the evidence would no doubt show that the deceased was booked in some films for acting as heroine and she was also having considerable earnings. The

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case of the prosecution is that both of them decided to end their lives because of the opposition of the parents of the accused to their marriage. Therefore even a girl who is deeply in love with her boyfriend and thinks of marrying him may go to the extent of ending her life if there is no likelihood of their marriage taking place and the chances of herself coming up in life as a good or popular heroine with a further chance of making lot of money may not deter her from ending life as any girl would think of a happy married life with a boy of her choice in preference to a career. Thus this first contention of Sri Kesava Rao cannot also be accepted.

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23. The evidence would, in my opinion, as already mentioned in para19, only show that both the accused and the deceased together consumed poison under an agreement or what may be called a suicide pact and the accused survived while the deceased unfortunately died. In such a situation i.e. where two persons in a case like this enter into an agreement or a suicide pact and consume poison the question would be whether each of them can be said to have abetted the act of the other to commit suicide and further when one of them dies can the survivor be found guilty of the charge of abetment of suicide by the other as in such a case the person who dies. Sri Padmanabha Reddy says that the survivor cannot be held guilty of abetment in such a situation, whereas Sri Kesava Rao says that he ought be.

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24. In this connection it would be useful to refer to the commentary given under Section 306 IPC in Dr. Harisingh Gour’s Penal Law of India (11^th Edition published by the Law Publishers India Pvt. Ltd., Allahabad) (Vol.III at pages 3107 and 3108). Two English cases are referred to giving out their facts. It would be better to reproduce the said commentary and it is as follows.

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“Mutual suicide attempt; survivor is guilty of murder but under

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this section, guilty of abetment.

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The prisoner was indicted for the murder of his sweetheart by drowning her. It appeared that the two had cohabited for several months previous to the woman’s death and the woman was with child by the prisoner. Owing to distress and poverty they both resolved to commit suicide by drowning themselves in the Thames. For that purpose they got into a boat, but finding the water shallow, they got into another boat. They then stood up, and as they were talking, the prisoner found himself in the water. He struggled and got back into the boat again, and then found that the woman was gone. He searched for her with a view to saving her but she could not be found. He stated that he intended to drown himself, but had dissuaded the woman from following his example. The Judge told the jury that if they believed the prisoner’s statement, they should acquit him, but they believed that both the accused and the deceased had got into the boat with the object of drowning themselves together, each encouraged the other in the commission of a felonious act, and the survivor was guilty of murder. He also told the jury that, although the indictment charged the prisoner with throwing the deceased into the water, yet if he were present at the time she threw herself in, and consented to her doing it the act of the throwing was to be considered to be the act of both, and so the act was reached by the indictment. The jury found that both the prisoner and the deceased went to the water to drown themselves and the prisoner was thereupon convicted. And upon a case reserved the Judges were clear that if the deceased threw herself into the water by the encouragement of the prisoner, and because she thought he had set her the example in pursuance of their previous agreement, he was a principal in the second degree, and was guilty of murder; but as it was doubtful whether the deceased did not fall into the river by accident, it was not murder in either of them, and the prisoner was recommended for a pardon.

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So in another case where the deceased and the prisoner, who had been living as husband and wife, being in very great distress, both agreed to take poison and die together, and both took a quantity of laudanum in each other’s presence, after which they both lay down on the same bed, wishing to die in each other’s arms, and the woman died, but the prisoner recovered. Patterson, J., told the jury that “supposing the parties in this case mutually agreed to commit suicide, and one only accomplished that object, the survivor will be guilty of murder in point of law. Of course, here he would be guilty only of abetment under this section.”

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25. It should be noted that in both the above cases the accused and the deceased entered into a suicide pact and executed it, but one of

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them died and the other survived. The survivor was put on trial for murder or manslaughter. At that time in England when the above cases were decided there was no provision akin Section 306 IPC though it is not known what the position now is. However the principle is important. The principle and the reasons in the above two cases would, in my opinion, show that in such cases which are akin to the present case, each of them i.e. the two partners must be held responsible for the abetment of the suicide by the other in keeping silent i.e. by an illegal omission and encouraging the other to go for suicide while the abettor himself/herself also making an attempt to commit suicide. At the end of the second case the authors of the commentary gave an opinion that in India in such cases the survivor can be held guilty of abetment.

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26. It was argued by Sri Padmanabha Reddy that this opinion of the authors has no value as it is not binding on the court. May be, but the said opinion which is based on the above decisions cannot be rejected as absurd or unreasonable in view of the principle governing the above two decisions and on the other hand it can be said to have been given on sound reasoning. I therefore agree with the said opinion though it is not equivalent to a binding precedent as any opinion given in a commentary on a statute can be accepted, if it is found reasonable.

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27. Sri Padmanabha Reddy argued that the above principle is not applicable in India and we have to go by only Section 306 IPC and in the circumstances of this case the accused cannot be held guilty of the offence under Section 306 IPC. It is difficult to accept his contention. It may be noted that if a person abets suicide by another without joining in any suicide pact and that results in the death of the latter, he would be certainly liable for the offence under Section 306 IPC. Now when two persons enter into a suicide pact that is also contrary to law and the survivor can be held guilty under this Section for abetting the suicide of the other. In such a case the principle is each must dissuade the other

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from the idea of committing suicide and when both attempt suicide the principle would be that each must be held guilty of abetting the suicide by the other and consequently basing on this principle the survivor must be held guilty under Section 306 IPC. The said provision, it may be noted, does not make any distinction between a person who attempts suicide with the deceased and the person who does not make any such attempt but abets the suicide by the other and hence it follows that when two persons attempt to commit suicide under a suicide pact or agreement the survivor can be found guilty under Section 306 IPC going by its language and the above principle. This is what has happened in the present case when the accused and the deceased both attempted suicide by consuming poison which resulted in the death of the deceased and survival of the accused.

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28. Sri Padmanabha Reddy could not cite any decision or authority to hold that the above principle cannot be applied here. It may be noted that in the present case it was the duty of the accused to dissuade the deceased from committing suicide and vice versa. As the accused did not dissuade the deceased and kept silent when she consumed poison and especially when he also procured poison for execution of the suicide pact of both of them, the said acts of the accused can be said to constitute abetment i.e. by an illegal omission and as well as by a positive act of procuring poison as contemplated under Section 107 IPC though everything happened with the consent of both. The fact that he also attempted suicide is no excuse and he would be guilty under Section 309 IPC as the said Section does not make any distinction, as already mentioned, between a person who only abets the suicide of the other, and who also joins the other in committing suicide but survives.

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29. Sri Padmanabha Reddy relied upon Aruna Ramachandra Shanbaug

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v. Union of Indi a^[1] and M.Mohan v. Stat e^[2] in support of his contention that the accused cannot be held guilty under Section 306 IPC in a case like this. The first case deals with euthanasia and makes a distinction between voluntary and non-voluntary euthanasia. The principles applicable to euthanasia will be applicable only when the person who wants to die is suffering from some terminal illness and was in a vegetative condition. That is admittedly not the case here. Next case deals with the criteria under which Sections 306 and 107 IPC can be applied and that was a case which involve alleged torture of wife by husband and he did not attempt suicide. On the facts of that case it was held that to apply Section 306 IPC proof of commission of direct or active part by accused which led to the deceased to commit suicide must be shown. The said principle does not apply here on facts and further the ‘illegal omission’ which also constitutes abetment as contemplated under Section 107 IPC was not considered as there was no occasion to consider it.

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30. On the other hand, of the various decisions cited by Sri Kesava Rao, the principle laid down in Ram Kumar and Nain Singh v. State of H.P.^[3] which is also a decision of our Supreme Court can be said to be nearer to the principle here as it deals with an illegal omission which also constitutes abetment under Section 107 IPC. That was a case where in a police station a constable was found to be a spectator when the head constable raped a woman. The Supreme Court held that the attitude of the constable in keeping silent when the offence was committed by the head constable would amount to abetment of rape and supports the prosecution case in principle on the facts of this case.

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31. In the present case, as already mentioned, the attitude of the accused in not preventing or dissuading the deceased from committing

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suicide and also procuring poison though it was with the consent of both can be said to constitute abetment of suicide of the deceased by the accused as she died of consuming poison though he too consumed it but survived. His act therefore, for the aforesaid reasons, can be said to fall under Section 306 IPC as it does not make any distinction between a person who abets the suicide of another without joining in any suicide pact and a person who joins with that other in a suicide pact and also does an act to commit suicide but survives. In view of this and for the aforesaid reasons altering the finding on the act of the accused as indicated above, his conviction under Section 306 IPC recorded by the trial court is confirmed.

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32. That takes me to the charge under Section 309 IPC. The medical evidence of P.Ws.10 and 13 would clearly show that the accused also in the same transaction consumed the poison found in M.O.1 bottle but survived. Sri Padmanabha Reddy could not show any circumstance as to how on evidence the conviction of the accused on the said charge can be said to be illegal. Accordingly the said conviction is also confirmed.

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33. That takes me to the plea of the de facto complainant i.e. the petitioner in the revision which she filed for enhancement of sentence under Section 306 IPC. In the said revision she also made a prayer for re-trial of the accused for more serious offences of rape and murder. The plea of the de facto complainant for re-trial is first taken up. Arguing on the aspect of re-trial, Sri Satyaprasad the learned counsel for the de facto complainant relied upon the contents of Ex.P.51 post mortem report of Dr.Munuswamy which show that the death of the deceased was a homicide and further pointed out that the authorities have hushed up the matter and brought into existence Ex.P.52 post mortem report of the expert committee and put the accused on trial for lesser offences and consequently the convictions must be set aside and a re-trial must be

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ordered directing the accused to be committed for more serious offences of rape and murder.

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34. On the above aspect Sri Padmanabha Reddy pointed out that though the case was initially taken up by the local police this court monitored the case and investigation was entrusted to the CBI and after investigating the matter thoroughly the CBI has charge sheeted the accused for Sections 306 and 309 IPC and therefore the request for retrial should be rejected. However the contention of Sri Satyaprasad cannot be accepted for the following reasons.

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35. It may be noted that after the CBI has filed the charge sheet alleging the offences under Section 306 and 309 IPC against the accused, the de facto complainant did not take any steps either by filing a protest petition or a private compliant or otherwise to plead before the committal court that the investigation done by the CBI was faulty and the accused should have been prosecuted for the offences of murder and rape. The de facto complainant also gave evidence as P.W.1 and her evidence does not show that she alleged that the accused has committed the murder of her daughter. P.W.2 Prafulla Sri is a cousin of the deceased. She also did not complain against the CBI. What should be noted is that the de facto complainant allowed the committal proceedings and the trial to go on, for the offences alleged by the CBI and they did not pursue any steps which were available to them before the committal court for prosecution of the accused for more serious offences. From the evidence on record also nothing has been brought to the notice of this court to set aside the convictions and for directing a committal and a re-trial for severe offences though this court has got that power under Section 386(b) of Cr.P.C. even in an appeal from conviction.

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36. Sri Satyaprasad only relied upon Ex.P.51 post mortem report given by Dr.Muniswamy and this has been superseded by the post-mortem report given by the expert committee of which P.W.31 Dr.M.Narayana Reddy was a member. It was represented that Dr.Muniswamy subsequently died in a road accident and therefore he was not examined. It may be noted that the de facto complainant could have let in evidence of some other doctor who knew about the writing of Ex.P.51 report given Dr.Munuswamy and other supporting evidence or material before the committal court requesting it to accept her case, but she did not do that. The CBI has investigated the matter and filed the charge sheet and has let in evidence which is already referred to supra in support of the charges brought against the accused.

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37. Sri Satyaprasad cited various decisions in support of his contention for re-trial but I must say that they are not relevant to the point and are therefore not mentioned. To repeat, what should be noted is that the de facto complainant failed to take any action before the committal court either by a complaint or otherwise requesting it to take cognizance of the matter for higher offences against the accused pursue her remedies in that behalf.

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38. Sri Satyaprasad pointed out that the accused in his Section 313 Cr.P.C examination denied every aspect of the prosecution case though it is borne out by the record and this itself is a circumstance which shows his adamant attitude towards the deceased. It is true that the accused denied every aspect in the said examination. It may be noted that in our country any accused would go before a criminal court with a plea of total denial and this is largely due to the legal advice and such a plea is taken because of the principle that it is the duty of the prosecution to prove every aspect of its case beyond all reasonable doubt. It may be noted that in a number of cases the Supreme Court has

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laid down the principle that even a right of private defence can be permitted to be shown from the evidence if it is discernible from the same though the accused has not taken such a plea either in his first answer to the charges or even in Section 313 Cr.P.C examination. This is a settled principle. In such a situation, the mere fact that the accused took a plea of total denial is not a ground in the absence of any material to order a re-trial for higher offences or even for enhancing the sentences. Nothing could be brought to the notice of this court, to repeat, from the available record to accept her plea for a re-trial and hence in the above circumstances her request for re-trial is rejected.

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39. Then coming to sentences, the trial court imposed a substantive sentence of imprisonment of one year which is the maximum for the offence under Section 309 IPC and also a fine of Rs.1,000/- which are reasonable and do not call for any interference.

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40. Then turning to Section 306 IPC it awarded a substantive sentence of imprisonment for five years while the maximum imposable is ten years and also fine. In the revision the de facto complainant pleaded for enhancement of this sentence while the learned counsel for the accused without prejudice to the rights of the accused alternatively argued for a lesser sentence. The pain and agony of the de facto complainant in having lost a grown up daughter is understandable. It may also be noted that this pain and agony may be much more when a daughter or son prove themselves to be more helpful to the family by their earnings and in this case the poor mother lost a daughter who was just then building up a career in filmdom and there is no doubt about this aspect. The question is whether the above circumstances can be a ground to enhance the sentences as urged by Sri Satya Prasad or the plea of the learned senior counsel for the accused for a lesser sentence must be

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accepted.

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41. From the evidence of P.W.2 Prafulla Sri it will be clear that the deceased herself on the date of incident while sitting in the beauty parlour called the accused through P.W.2 over phone and thereafter both of them went out and what happened on that evening subsequently is now all mentioned supra. The evidence shows that both of them consumed poison because of the opposition to their marriage from the parents of the accused. It is clear that the accused was faced with the bitter option of either choosing his parents or the deceased and perhaps in his anxiety not to offend his parents on one hand and not to lose the deceased on the other, he and the deceased decided to go for a suicide and went for it but unfortunately the deceased died though both of them reached the hospital for treatment realising the folly of their foolish act. The act of the deceased can also be said to be a contributing factor though the accused also by procuring poison and doing other things can be said to have abetted the suicide of the deceased and this is also discussed supra. This is not a case where the accused wanted to get rid of the deceased in order to go for another marriage with a girl of his parents choice but this is a case where the evidence shows that the accused was also in love with the deceased and consumed poison to end his life also along with the deceased and in that manner abetted her suicide.

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42. It is true that sympathy as contended by Sri A.Satyaprasad cannot be a ground to reduce the sentence in a case like this but at the same time it may be noted that there should be a strong ground also for enhancing the substantive sentence of imprisonment for the charge under Section 306 IPC. It is also true that the de facto complainant lost her grown up daughter but she cannot be brought back now. Equally the accused also underwent suffering from February 2002 onwards to this

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date but these are not mitigating circumstances in the case to let off the accused with a lenient view, but I am of the opinion that the substantive sentence of imprisonment for the said charge can be reduced while increasing the fine. Considering all the circumstances, while refusing the plea of the de facto complainant for enhancing the sentence for the charge under Section 306 IPC, I am of the opinion that ends of justice would be met if the substantive sentence for that charge is reduced to two years rigorous imprisonment while increasing the fine to Rs.50,000/-.

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43. Accordingly, with the above modification in sentences for the charge under Section 306 IPC this appeal is dismissed confirming the convictions and sentences recorded by the trial court in all other respects. The accused is further sentenced to undergo simple imprisonment for a further period of six month in default of payment of fine. The increased fine amount shall be paid in trial court. Out of the total fine amount for both the charges, a sum of Rs.40,000/- shall be paid as compensation to the de facto complainant after the expiry of time available for the accused for pursuing further remedies against this judgment. The substantive sentences of imprisonment on both the counts shall run concurrently. Consequently it follows that the criminal revision filed by the de facto complainant should fail and that is also dismissed.

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44. As the accused is stated to be on bail he shall surrender before the trial court within 15 days from today to serve out the sentences as modified now failing which the trial court shall take necessary steps to commit him to prison for executing the sentences.

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N.RAVI SHANKAR, J

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28^th December, 2011. TJMR/CVRK

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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR

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CRIMINAL APPEAL NO.405 OF 2004 AND

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CRIMINAL REVISION CASE NO.2055 OF 2004

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DATE: 28.12.2011