Prayer: Criminal Appeals filed under Section 374 of the Criminal Procedure Code against the judgment made in S.C.No.167 of 2008, dated 10.01.2009 on the file of the Sessions Judge of Mahila Court at Thiruchirappalli.
judgment passed in S.C.No.169 of 2008, dated 10.02.2009 by the Assistant Sessions Judge (Mahila Court),Thiruchirappalli.
2.According to the prosecution, on 05.01.2008 at about 15.30 hours, PW11 received information from Government Hospital and on receipt of the information, he went to the Hospital and recorded the statement of PW1. PW1 alleged that she had a daughter Vijaya Shanthi aged about 18 years and she was studying 10th Standard and for the past two years, when her daughter was going to school, the appellants were teasing her and when she reported the same to her, she asked her to keep quite and on 04.01.2008 at about 6.00 pm, when the deceased was on her way to house after visiting temple, the appellants called her as to “will you not come if we ask” and the deceased reported the same to PW1 and she condemned the appellants and at this juncture, the appellants came to the house of PW1 and scolded PW1 and the deceased and thereafter, they returned back and on the next day PW1 went to her job and at about 11.00 am, the deceased poured http://www.judis.nic.in 3 kerosene and set ablaze her. The Inspector of Police attached to Woraiyur Police Station has filed a final report against the accused by examining the witnesses.
3.In the trial court, 12 witnesses were examined and 17 Exhibits and 1 material object were marked. When the accused were questioned about the incriminating circumstances, they denied the same. On the side of the accused, no witness was examined and no document was produced. The trial court convicted the appellants/A1 and A2 and sentenced them to undergo 3 years RI and imposed a fine of Rs.10,000/-, in default to undergo 6 months RI for the offence under Section 2(a) and 4 of TNPHW Act and also sentenced them to undergo 3 years RI and imposed a fine of Rs.1,000/-, in default to undergo 6 months RI for the offence under Section 306 r/w 34 IPC. Aggrieved by the judgment passed by the trial court, the appellants/A1 and A2 are before this court.
4.The learned counsel for the appellants/A1 and A2 submitted that in this case, there was no harassment prior to commitment of suicide and when nothing driven her to commit suicide, the appellants will not be charged on mere PW1's http://www.judis.nic.in 4 statement and in this case, the prosecution failed to conduct the identification parade, since PW1 has seen the appellants first time two days prior to the occurrence and when PW1 has seen the appellants only one time, it is the duty of the prosecution to conduct identification parade, failed to do so would be fatal to the prosecution case and in this case, the prosecution failed to mark the statement given by the deceased at the Hospital to the Police Officer and the prosecution failed to prove the allegations against the appellants since PW2 and PW3 categorically admitted that prior to the occurrence, PW1 scolded the deceased and in this case, the respondent has not arranged for obtaining Dying Declaration, though the deceased was in the position of able to speak even as per the Accident Register, PW1 and PW8 statements and in this case, there was a delay of two days in reaching the FIR to the court. In view of the above circumstances, the appellants/A1 and A2 are entitled to acquittal and prays that the criminal appeals have to be allowed.
5.The learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the trial court after perusing the entire materials available on record, has passed order, which does not require any interference by this court and http://www.judis.nic.in 5 prays for dismissal of the appeals.
6.Heard both sides and perused the materials available on record.
7.The main contention raised on the side of the appellants/A1 and A2 is that on the basis of the hearsay evidence of PW1 in respect of the eve-teasing made by the accused, the conviction granted is illegal and not supported by any substantial evidence and the conviction against the accused is completely baseless and in adequate in evidence and no guilty has been made out as against the accused through the evidence and prays that the appellants/A1 and A2 are entitled to acquittal.
8.PW1 is the mother of the deceased and she gave Ex.P1 complaint. PW1 in her complaint and evidence stated that prior to 10 months, when her daughter returning from the school, A1 and A2 used to tease her and then, she went to the house of the accused and asked their parents to control them, but A1 and A2 continued to tease her daughter and further, her daughter told that one Saturday when she returned from the temple, the Accused said that “Vd; cd; jhahhplk; nrhd;dha; cd; mk;khthy; xd;Wk; nra;aKoahJ kPz;Lk; cd; http://www.judis.nic.in 6 mk;khtplk; nrhd;dhy; 4 grq;;fis $l;o te;J jtwhf ele;J nfhs;Nthk; and threatened her daughter and on the same day, in the evening, both the accused came to their house and used filthy language and due to it, her daughter was crying in the night and in the next day, she went to do her work, at the time her daughter poured kerosene and set fire and after hearing it, she came and took her daughter to the Government Hospital for treatment and then, her daughter died in the hospital. Hence, the evidence of PW1 is corroborated with the contents found in Ex.P1.
9.PW3 is cited as eye witness. PW3 deposed that on 4 th Friday when he returned from his work, he saw that A1 and A2 came to the house of PW1 and quarrelled with the deceased and in the next day morning, PW1's daughter poured kerosene and set fire and informed the above to PW1. Hence, the evidence of PW3 is corroborated with the evidence of PW1.
10.PW2 is the owner of the house in which PW1 resides. He deposed that he heard that A1 and A2 teased the deceased and on the next day, the deceased poured kerosene and set fire. http://www.judis.nic.in 7
11.PW4 is the sister of PW1. She deposed that PW1 told her that A1 and A2 teased her daughter, when she returned from the temple and then she questioned the accused, for that, they replied that they do not repeat the same, but on the same day at 8.00 pm, A1 and A2 came to the house of PW1 and used filthy language and in the next day morning, the deceased poured kerosene and set fire and then, immediately went to the house of the deceased and asked the deceased why she has poured kerosene, for that the deceased told the name of A1 and A2. Hence, from the evidence of PW4, it reveals that the deceased told the name of A1 and A2 to her and only due to the act of A1 and A2, she poured kerosene and set fire. Hence, the evidence of PW4 is corroborated with the evidence of PW1.
12.The learned counsel appearing for the accused argued that the deceased at the time of admission was concious, but no steps were taken to record the Dying Declaration of the deceased and hence, it is fatal to the prosecution.
13.The Doctor, who gave treatment to the deceased was http://www.judis.nic.in 8 examined as PW8. PW8 deposed that on 08.01.2008 at 11.30 am, PW1 brought her daughter to the Government Hospital and he admitted the deceased in the Ward. PW8 stated during his cross examination that at the time of admission of the injured, she was conscious, but she was not in a position to speak. PW9 is the Doctor, who conducted post-mortem on the body of the deceased and he found the following injuries on the body of the deceased:-
(1)Superficial burns wound on the scalp face, front, sides and back of neck, front and back of trunk, both upper limb, leaving the palm unaffected. Perineum and both lower limb leaving the feet unaffected. The base of the burnt area is reddish, peeling and carbonisation of cuticle present. Singling of hairs present.
(2)Two cut down wounds one on each leg near the ankle joint present. The above mentioned wounds are ante-mortem. No other external internal or bony wound present.
14.PW1 categorically stated that due to the teasing by the accused, her daughter poured kerosene and set fire. From the evidence of PW8, it reveals that at the time of admission of the http://www.judis.nic.in 9 victim, she was concious but it was not possible for her to speak. Hence, the Dying Declaration from the victim was not recorded. Hence, the argument put forth on the side of the accused stating that even though, at the time of admission, the victim was concious, the Dying Declaration was not recorded is not at all acceptable. Hence, the evidence of PW1 is corroborated with the evidence of PW8 and PW9. Hence, it is held that there is no contradiction between the oral evidence and medical evidence.
15.The learned counsel appearing for the appellants/A1 and A2 argued that A1 and A2 and the deceased are friends and the appellants/A1 and A2 never teased the deceased and PW1 came to understand the relationship of the deceased with A1 and A2 and on 04.01.2008, she bet the deceased with broom stick and it was seen by the residents of the above area and only due to it, she was crying in the night and in the next day morning, she poured kerosene and set fire and hence, the appellants/A1 and A2 are not responsible for the death of the deceased. PW1 in order to avoid a case registered against her, she gave a false complaint against the appellants/A1 and A2. In support of his contention, the learned counsel appearing for the appellants/A1 and A2 submitted the decisions reported in http://www.judis.nic.in 10 2009(1) MWN (Cr.) 321 (Muralisamy @ Muralidharan & others Vs. State by Inspector of Police, Salem District, 2003 Supreme Court Cases (Cri) 751 (Rajeevan and another Vs. State of Kerala) and 2003 Supreme Court Cases (Cri) 801 (Suresh Chaudhary Vs. Stte of Bihar).
16.In this case, to prove that only due to the act of PW1, the deceased set fire, no residents of the locality was examined on the side of the appellants/A1 and A2. Further, the appellants/A1 and A2 failed to lead any contra evidence to prove that only due to the conduct of PW1, the deceased set fire. Hence, the argument put forth on the side of the appellants/A1 and A2 stating that only due to the act of PW1, when she resisted the relationship between the appellants/A1 and A2 and the deceased, the deceased set fire is not at all acceptable.
17.The learned counsel appearing for the accused argued that there is no instigation by the accused against the deceased to commit suicide and hence, A1 and A2 are entitled to acquittal. Further, the learned counsel appearing for the accused submitted a ruling reported in (2017)1 SCC 433 (Gurcharan Singh Vs. State of Punjab), wherein it has been held in para 21 as follows:- http://www.judis.nic.in 11 “21.It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence abetement essential to attract the punitive mandate of
Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts of omission are the concomitant indices of abetement.
Section 306 IPC, thus criminalises the sustained incitement for suicide.” http://www.judis.nic.in 12
18.At this juncture, it is necessary to refer
Section 306 IPC, which would run thus:-
“306.Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
19.In this case, PW1 categorically stated that only due to the teasing by the accused, her daughter committed suicide. PW2 and PW4 deposed that prior to the occurrence in the night, A1 and A2 came and quarrelled with PW1 & A1 and A2 used filthy language and due to it, the deceased poured kerosene and set fire. Hence, from the above evidence, it reveals that due to the instigation of A1 and A2, the victim poured kerosene and set fire.
20.The learned counsel appearing for the appellants/A1 and A2 further argued that the date of occurrence is 05.01.2008, but the First Information Report was received by the Court only on 07.01.2008 and there is a delay in despatching the First Information http://www.judis.nic.in 13 Report and therefore, it is fatal to the prosecution. For that, the learned counsel appearing for the appellants/A1 and A2 submitted a ruling reported in 2003 Supreme Court Cases (Cri) 751.
21.It is seen from the records that the date of occurrence is 05.01.2008 at 11.00 am and in the next day morning, the deceased died. At first, a case was registered under Sections 3 and 4 of TNPHW Act, but after the death of the deceased, the offence was altered into 306 IPC. Hence, at first, it is not necessary to send the express FIR and after the death of the deceased, the case was altered into 306 IPC and then only, the First Information Report was received by the court on 07.01.2008. It is pertinent to note that when the oral and medical evidence are corroborated, the delay in despatching the FIR will not affect the case of the prosecution. In this case also, the evidence of PW1 is corroborated with the medical evidence. Hence, the delay in despatching the FIR will not affect the case of the prosecution.
22.Further, the learned counsel appearing for the 2nd appellant/A2 argued that PW1 has not stated anything about A2, either in the statement given by PW1 before PW11 or in Ex.P1 http://www.judis.nic.in 14 complaint. But PW1 stated only on 04.01.2008, A2 came along with A1 and PW2 and PW3 have not stated that they saw A2 in the place of occurrence and there was no overtact as against A2 and prays that A2 is entitled to acquittal.
23.It is seen from the records that PW1 in her complaint specifically stated that the deceased told her that A1 with his friend came and teased her daughter and on 04.01.2008, A2 came along with A1 and quarrelled with her and her daughter and threatened her. PW1 categorically stated that on 04.01.2008, A2 came along with A1 and quarrelled with her and her daughter and further, she has stated that A1 with his friend came and teased her. PW1 has not stated in her complaint or in 161(3) statement that A1 alone teased her daughter. PW1 specifically stated that A2 also used filthy language and quarrelled with her and her daughter and threatened PW1 and her husband. Further, PW2 and PW4 also stated that A1 and A2 teased the deceased. Hence, the argument put forth on the side of the 2nd appellant/A2 that there was no overtact against A2 is not at all acceptable.
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24.The trial court after considering the entire materials available on record has given a correct findings, which does not call for any interference by this court.
25.In the result, the Criminal Appeals are partly allowed. The punishment imposed on the appellants/A1 and A2 for the offence under Section 2(a) and 4 of TNPHW Act and
Section 306 r/w 34 IPC is reduced and they are directed to undergo one year RI for each offence. The sentences are directed to run concurrently. In other aspects, the findings of the trial court is confirmed. The period of sentence, if any, already undergone by the appellants/A1 and A2 is set off under Section 428 of Cr.P.C. The appellants, after adjusting the period of imprisonment already undergone shall undergo imprisonment for the remaining period.
22.08.2019 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 16 T.KRISHNAVALLI,J er To,
1.The Sessions Judge, Mahila Court, Thiruchirappalli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Crl.A.(MD)Nos.52 and 96 of 2009 22.08.2019 http://www.judis.nic.in 17 http://www.judis.nic.in 18 http://www.judis.nic.in