IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 15.07.2008 CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM Criminal Appeal No.210/2002 Rajamani .. Appellant/A-1 -Vs- State rep.by Inspector of Police P5 Police Station Coimbatore. .. Respondent/Complainant Appeal filed under section 374 Cr.P.C., against the conviction and sentence passed by the learned Additional Sessions Judge [Fast Track Court NO.3], Coimbatore, in SC.No.89 of 2001 dated 07.02.2002. For Appellant : Mr.V.Gopinath, SC for Mr.L.Mahendran For Respondent : Mr.N.Kumanan Govt. Advocate [Crl.Side] JUDGMENT
The appellant who is the first accused in SC.No.89/2001 on the file of the learned Additional Sessions Judge, Fast Track Court No.3, Coimbatore, stands convicted for the offence under section 306 IPC and sentenced to undergo three years rigorous imprisonment. Aggrieved by the said conviction and sentence, the appellant has preferred this appeal.
2.The case of the prosecution is as follows:-
[a] On 18.04.1999, the deceased Nagarajan, who was a mentally retarded was done to death by his parents themselves and thereafter, Thiripurasundari, Ayyasamy and Sandhanam, the mother, father and grandfather of the deceased Nagarajan said to have committed suicide.
[b] P.W.1-Balakumar, who is the brother of the deceased Thiripurasundari had gone to Marudhamalai and returned only at 11.15 a.m. on 18.04.1999. On his return, he found the house was locked. He enquired the neighbours. Then he went to the backside of the house and peeped through the window. He found all the four, viz., Nagarajan, Thiripurasundari, Ayyasamy and Sandhanam were lying down. He went and informed one Jayaraj, the neighbour about the same who on information, came to the scene of occurrence and went to bring the doctor. The doctor informed that P.W.1’s sister and her son Nagarajan were not alive. The other two were taken to the hospital where they were declared dead. P.W.1 went to Singanallur Police Station and gave a complaint, Ex.P.1.
[c] P.W.1, has stated in his evidence that the deceased Nagarajan was mentally retarded and his sister was conducting chit business and she sustained heavy loss and she was also getting threats from several persons.
[d] P.W.2-Vijayakumari, is the wife of P.W.1, had stated in her evidence that about 25 days prior to the death of the deceased, at about 6.00 p.m. she went to the house of the deceased. There she saw the accused 1 to 4 demanding the chit amount from the deceased Thiripurasundari. The deceased told the accused that they have not paid 13 instalments and therefore, she refused to give the chit amount. All the four accused threatened the deceased Thiripurasundari and also told that the deceased may commit suicide by consuming poison.
[e] P.W.3-Sampathkumar, who is a resident of Bharathi Nagar, had stated that while he was going to his maternal uncle’s house, about 25 days prior to the death of the deceased 1 to 4, he saw all the four accused entering the house of the deceased Thiripurasundari. He saw the accused Rajamani was demanding the chit amount from the deceased Thiripurasundari and as she denied, the first accused/appellant herein instigated her by saying that either she must give the money or she must commit suicide by consuming poison.
[f] P.W.21, the Inspector of Police of Singanallur Police Station during the relevant period, received the complaint Ex.P.1 from P.W.1 on 18.04.1999 at 12.00 noon and registered a case in Crime No.354/1999 for the offence under section 174 Cr.P.C. Ex.P.20 is the Express FIR. He went to the scene of occurrence and prepared rough sketch-Ex.P.21 and Observation Mahazar-Ex.P.19 in the presence of witnesses. He also enquired the witnesses and recorded their statements. He held inquest on the dead bodyof the deceased Thiripurasundari from 2.00 p.m. to 4.00 p.m. Ex.P.22 is the Inquest Report of the deceased Thiripurasundari. He also held inquest on the dead body of the deceased Nagarajan in the presence of witnesses from 4.15 p.m. to 6.00 p.m. and Ex.P.23 is the Inquest report of the deceased Nagarajan. He sent the dead bodies for postmortem. He recovered the material objects, viz., white colour bag and white colour cloth from the scene of occurrence.
[g] The investigating officer received the death intimation of the deceased Ayyasamy and Sandhanam; went to the hospital and held inquest on the dead body of the deceased Sandhanam in the presence of witnesses from 6.30 p.m. to 8.00 p.m. and Ex.P.24 is the Inquest Report of the deceased Sandhanam. He also held inquest on the dead body of the deceased Ayyasamy on the same day from 8.15 p.m. to 9.45 p.m. and prepared Ex.P.25-the Inquest Report of the deceased Ayyasamy. All the dead bodies were sent to postmortem.
[h] P.W.18-Su.Mansoor, the doctor attached to the Government Hospital, Coimbatore, on receipt of the requisition from the Inspector of Police, conducted autopsy on the dead body of the deceased Nagarajan on 19.4.1999 at 11.15 a.m. He found the following injuries:-
“INJURIES:-
1.A horizontal ligature mark seen encircling the middle of neck measuring 45×2 cms.
2.Anatomical location of the ligature mark is as follows:-
6.5cm below the right ear lobe.
8cm below the chin.
7cm below the left ear lobe.
10Cm below the occipital protuberance. On bloodless dissection of the neck, the soft tissues underlying the ligature mark shows intermittent areas of bruising in the superficial and deep planes of the neck. Hyoid bone intact.”
Ex.P.14 is the Postmortem Certificate. The doctor through Ex.P.13, the final opinion, had opined that the deceased would appeared to have died of asphyxia due to strangulation.
[i] On the same day, at 11.45 a.m. P.W.18, conducted autopsy on the dead body of the deceased Thiripurasundari. He found that there was no external injury but opined in the Final Opinion that the deceased would appear to have died of organophosphorus insecticide poisoning.
[j] P.W.19, Dr.Sundarrajan, the doctor attached to the Government Hospital, Coimbatore, on receipt of the requisition from the police, conducted autopsy on the dead body of the deceased Ayyasamy at 10.15 a.m. on 19.04.1999. He found no external injuries but opined that the deceased would appear to have died of organophosphorous insecticide poisoning.
[k] P.W.19, on the same day, at 11.00 a.m. conducted autopsy on the dead body of the deceased Sandhanam and opined that the deceased would appear to have died of organophosphorous insecticide poisoning.
[l] P.W.21, the Investigating Officer, in continuation of his investigation, examined the doctors who conducted postmortems on the dead bodies of the deceased and recorded their statements. On 19.04.1999, when P.W.21 was enquiring the witnesses, P.W.2 produced seven covers to him which was kept in the cupboard. He had also taken Exs.P.2 and 3 from the bodies of the deceased Ayyasamy and Sandhanam. From the letters, he came to know that the deceased Thiripurasundari, Ayyasamy and Santhanam committed suicide and thus, altered the case to one under section 306 IPC. Ex.P.26 is the altered FIR. On 20.04.1999 he arrested all the accused in front of the second accused house. After completing the investigation, the Investigating Officer filed the charge sheet against the accused for the offence under section 306 IPC.
3. Before the trial court, on the side of the prosecution, P.Ws.1 to 21 were examined; Exs.P.1 to 28 were marked and M.Os.1 to 13 were produced. On the side of the defence, no witness was examined and no document was produced.
4. The accused were questioned under section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution against them. They denied the complicity of the offence and pleaded guilty.
5. The Trial court after considering all the evidence and materials available on record, acquitted accused 2 to 4 and found the appellant/A-1 guilty under section 306 IPC and sentenced him as stated supra. In this case, there are three suicidal notes-Exs.P.2,3 and 12 written by the deceased Ayyasamy, Sandhanam and Thiripurasundari respectively. P.Ws.1,2 and 3 have spoken about the incident that took place 25 days prior to the death of the deceased. The Trial Court also placed reliance on Ex.P.12 the suicidal note of the deceased Thiripurasundari and also the evidence of P.W.3 who is an independent witness and convicted the appellant herein.
6. Mr.V.Gopinath, learned Senior Counsel appearing for the appellant contended that the deceased Thiripurasundari who was conducting chit business incurred debts to a sum of Rs.25 lakhs and she was unable to repay the same and she was having pressure from the money lenders. Further she was having mentally retarded son, the deceased Nagarajan and that she was in continuous stress and only under the said circumstance, as she had no other option she had committed suicide. But in Ex.P.12, the suicidal note, just because she had mentioned the name of the appellant herein, she had made as the accused. Learned Senior Counsel further submitted that even an entire reading of Ex.P.12 would show that the appellant alone was not responsible for the death of the deceased and there were various circumstances which pressurized her to commit suicide along with her husband and father. The words said to have been used by the appellant/A-1, according to the evidence of P.W.3, is only an exaggerated false version for the purpose of the case and even if so, merely by using such words during quarrel or at the time of demanding money, it cannot be said that the appellant/A-1 had mens rea on her part or intentionally she had instigated the deceased to commit suicide. All the more, the quarrel between the accused and the deceased Thiripurasundari had taken place 25 days prior to the death of the deceased. Learned Senior Counsel placed reliance on the decision reported in 2002 SCC [Crl.] 1141 [SANJU @ SANJAY SINGH SENGAR VS. STATE OF M.P.].
7. Learned Government Advocate [Crl.Side] submitted that the deceased Thiripurasundari was under stress and pressure. It was only the instigative words of the appellant that made her to commit suicide and in Ex.P.12 which amounts to Dying Declaration, it is specifically mentioned by the deceased that the appellant/A-1 is the main reason for taking such a decision.
8. This Court considered the submissions made by both parties and also perused the evidence and other materials available on record.
9. There are three suicidal notes, viz., Exs.P.2,3 and 12. As far as Ex.P.2 is concerned, which is written by the deceased Ayyasamy, it is only mentioned that all the three have taken the decision to commit suicide since his wife, the deceased Thiripurasundari, was not getting back the money which was lent by her to others and the persons from whom they borrowed money were giving threat over the phone and directly.
10. In Ex.P.3 written by the deceased Sandhanam, father of the deceased Thiripurasundari, it is mentioned that the deceased Thiripurasundari had to get Rs.25 lakhs from others and that she had to pay that amount to the persons who had given loan to her. It was further stated that the persons who borrowed money from his daughter alone are responsible for their suicide. Exs.P.2 and 3 are addressed to the Sub-Inspector of Police, Singanallur Police Station and in both the suicidal notes, none of the accused are implicated.
11. In Ex.P.12, the letter written by the deceased Thiripurasundari to one Bagavathi-P.W.17 who was working along with the deceased Thiripurasundari in the Telephones Department, the deceased had given in detail about the happenings and also about the conditions that was prevailing in her family. She has also stated specifically about her son who was aged about 25 years and that he was mentally retarded. The deceased also stated in the suicidal note about the conducting of the chit business wherein she was cheated by several persons and she was also pressurized by her co-workers in the office with regard to the chit and that she was not in a position to pay the interest. She had also stated that she along with her husband and father decided to commit suicide and also to take along with them the deceased Nagarajan, her elder son, who was mentally ill. She had made a further mention about the sum of Rs.25 lakhs due to her by way of conducting chit and since, the subscribers were not repaying the amount, she was in financial difficulties. After narrating the reasons for committing the suicide, at the end of the letter, she had made a note wherein she had mentioned that it was only the appellant/A-1 who made her to come to the quick decision. It is further stated in the note that the appellant/A-1 came along with his parents and brother, who are the other accused in this case and threatened her. She had concluded her letter by saying that she was pressurized for payment of interest and also by the activities of the appellant/accused Rajamani, all the subscribers were demanding money at one and the same time and as she was not able to face everyone she had taken the decision to commit suicide along with her family members.
12. This Court finds that the words which was said to have been used by the appellant/A-1 that instigated the deceased to commit suicide does not find place in Ex.P.12. When the deceased had written such a detailed letter and narrated everything, she had only stated that the appellant threatened her but not stated that she was instigated by the appellant to commit suicide. In the absence of such thing being mentioned, this Court is not inclined to accept the evidence of P.Ws.2 and 3 that the appellant instigated her to commit suicide by consuming poison. A total reading of Ex.P.12 shows that the deceased was in continuous mental stress and that she was in financial trouble for a long time. She had no means of repaying the loan amount and that she was pressurized by several persons. Only under that circumstance, she decided to commit suicide after consulting with her husband and father. It is not the prosecution case that her husband and father were also threatened by the appellant. Exs.P.2 and 3 shows that only due to financial difficulties they have taken such a decision. Under the said circumstances, it is not possible to conclude that it was only because the appellant threatened the deceased Thiripurasundari, she decided to commit suicide. Even in Ex.P.12, she has only mentioned that the appellant Rajamani is one of the reasons for her to come to the quick decision which means that she was already in a mind of committing suicide and the activities of the appellant made her to come to the final decision. From this, it cannot be said that the appellant instigated her to commit suicide.
13. The definition of Abetment under section 107 IPC is as follows:-
“107. Abetment of a thing
A person abets the doing of a thing, who-
First: -Instigates any person to do that thing; or
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
Thirdly: -Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation1:- 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.”
From Ex.P.12 it cannot be said that the appellant either instigated or intentionally aided the deceased to commit suicide.
14. It is also held in paragraph 12 of SANJU’S case [cited supra] that:-
“…..
12.Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25.07.1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased “to go and die”. For this, courts relied on a statement of Shashi Bhushan, brother of the deceased, made under section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant told him that the appellant had humiliated him and abused him with filthy words. The staement of Shashi Bhushan, recorded under sec.161 Cr.P.C., is annexed as Annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him “to go and die”. Even if we accept the prosecution story that the appellant did tell the deceased “to go and die”, that itself does not constitute the ingredient of “instigation”. The word “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion Secondly, the alleged abusive words, said to have been told to the deceased were on 25.7.1998 ensued by a quarrel. The deceased was found hanging on 27.07.1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25.07.1998 drove the deceased to commit suicide. Suicide by the deceased on 27.7.1998 is not proximate to the abusive language uttered by the appellant on 25.7.1998. The fact that the deceased committed suicide on 27.7.1998 would itself clearly point out that it is not the direct result of the quarrel taken place on 25.7.1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.”
15. In this case also, the appellant is said to have met the deceased 25 days prior to her death and it cannot be said that the appellant had mens rea on her part and she had acted with an idea of instigating her to commit suicide. This Court holds that the ingredients of section 306 IPC is not attracted against the appellant/A-1 herein.
16. Hence, the conviction and sentence imposed on the appellant by the learned Trial Judge is set aside and the criminal appeal is allowed.
17. It is reported that the appellant/A-1 is on bail. Hence, the bail bond, if any, executed by her shall stand terminated.
15.07.2008
Index : Yes
Internet: Yes
ap
T.SUDANTHIRAM, J.
ap
To
1. The Additional Sessions Judge,
Fast Track Court No.3,
Coimbatore.
2. The Inspector of Police
P5 Police Station.
Coimbatore.
3. The Public Prosecutor,
High Court, Madras.
Crl.A.No.210/2002
15.07.2008