IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.684 of 2008 1.J.Dayalan Babu 2.Mohana Rajammal ..Appellants/Accused 1 and 2 Versus State represented by The Inspector of Police CBI/SCB/Navi Mumbai ..Respondent/complainant Criminal Appeal filed against the conviction and sentence passed passed in S.C.No.8 of 2007, on the file of the learned Sessions Judge (Mahalir Neethimandram), Coimbatore dated 04.09.2008. For Appellants : Mr.S.Ashok Kumar Senior Counsel for Mr.P.Duraisamy For Respondent : Mr.N.Chandrasekaran Special Public Prosecutor for CBI Cases JUDGMENT
The appellants herein are the accused 1 and 2 in S.C.No.8 of 2007, on the file of the Sessions Court (Mahalir Neethi Mandram), Coimbatore and they stand convicted under Section 498-A and 306 IPC and they are sentenced each to undergo two years rigorous imprisonment and to pay a fine of Rs.1000/- in default to undergo simple imprisonment for six months for the offence under Section 498-A IPC and further sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.2000/- each in default to undergo one year simple imprisonment for the offence under Section 306 IPC and the sentences of imprisonment are to run concurrently. Aggrieved by the said conviction and sentence the appellants have preferred this criminal appeal.
2. The case of the prosecution, in brief, is as follows:
The deceased Joy Amutha Rani is the wife of the first accused and the second accused is the mother-in-law of the deceased. P.W.1 and P.W.5 are the parents of the deceased. P.W.1 had three daughters by name Sarojini P.W.8, Prema Suseela P.W.6 and Joy Amutha Rani, the deceased. P.W.8 was married to P.W.9. P.W.6 was married to P.W.2. The deceased was a graduate, qualified secondary grade teacher and she was working in the Holly Cross School as Teacher. The marriage of the deceased and the first accused was arranged and took place on 14.02.1994. Though it was decided among the parents of both bride and bridegroom to share the marriage expenditures, P.W.1 had to bear all the marriage expenditures. The first accused was working in a Court. P.W.1 paid a sum of Rs.10,000/- cash and 150 grams of gold at the time of marriage. The first accused and the deceased started to live in a Government Quarters at Ingore allotted to the second accused who was working as a nurse in a primary health center. The first accused demanded money from P.W.1 for constructing a house and he also demanded a sum of Rs.50,000/- to start a business for his younger brother. P.W.1 did not pay any amount stating that she had no sufficient money. P.W.1 also was paying every month a sum of Rs.1000/- for the family expenses of the first accused and the amount was paid in the form of demand drafts. During the month of September or October, 1994, one Kumar brother of the first accused came to the house of P.W.1 and made allegation that the deceased was not in a position to carry the baby in the womb. The deceased was pregnant at that time. The deceased also gave birth to a female child in the month of January, 1995. In the year 1995, the deceased was in her house. The second accused wrote a letter Ex.P.2 dated 08.08.1995 to the deceased using abusive language. On 26.01.1996, the brother of the first accused Kumar wrote a letter Ex.P.5 to P.W.5 stating that the deceased was a lunatic and the life of his brother was spoiled by P.W.1. On 29.09.1997, the second accused wrote a letter Ex.P.1 to P.W.1 stating that the deceased was a lunatic. During May, 2000, the deceased was taken to her parents house and she was left there and after one year, she was again sent back to her matrimonial home. The deceased was brought to the house of the first accused on 31.05.2000, but on 02.06.2001, the first accused sent a notice Ex.P.7 to P.W.1 through his Advocate.
3. On 13.10.2001, the first accused went out of the house to purchase tea powder and on his return, he saw smoke emanating out of his house and on break opening the door, he went inside the house and saw the deceased having committed suicide by self-immolation. He also gave a complaint to the Sub Inspector of Police, Sulur Police Station who registered the First Information Report under Section 174 Cr.P.C. P.W.1 also received a message through P.W.9 from the first accused. P.W.16 Sub Inspector of Police also informed the Tahsildar. P.W.16 also conducted inquest over the dead body of the deceased and prepared Ex.P.22 inquest report. The body was sent for post mortem examination. P.W.14 Doctor conducted post mortem on the body of the deceased and noted the following injuries:
“Extensive superficial burns involving whole of the body. Deploring of palm and soles noted. Blackening and peeling of skin seen all over the burnt areas. Base of burnt are is red in colour. Total singeing of all body hairs and scalp hair.
Other findings:
Plural and peritoneal cavities empty.
Lungs decomposed early changes noted. Cut section congested.
Heart Flabby. Rt. chambers contains fluid blood left chambers empty. Coronaries patent.
Hyoid bone intact.
Pracheal mucosa contains foot particles.
Stomach contains 30 ml of reddish brown colour fluid. No specific smell. Mucosa shows early changes of decomposition and congested.
Small intestine contains 20 ml of bile stained fluid. No specific fluid. Mucosa shows early changes of decomposition and congested.
Liver, Spleen, Kidneys and brain shows early changes of decomposition on cutsection congested.
Urinary bladders empty.
Uterus Normal insize cutsection empty.”
The Doctor issued Ex.P.10 post mortem certificate and opined that the deceased appeared to have died of extensive burns sustained by her.
4. On 26.08.2003, High Court passed an order transferring the investigation to the CBI. P.W.17 Inspector of Police, CBI, took up investigation and registered Ex.P.29 First Information Report. P.W.17 examined the witnesses and recorded their statements and collected the letters Exs.P.1, 2, 3, 5 and 7. He also examined the Doctors P.Ws.3 and 4 who gave treatment to the deceased. P.W.17 also sent the letters to the Government examiner for comparing the handwriting. P.W.15, hand writing expert gave opinion in Ex.P.16 with the reasoning sheet Ex.P.15. P.W.17 after completing the investigation laid the final report against the accused.
5. In order to prove the case, the prosecution examined P.Ws.1 to 17, marked Exs.P.1 to 34 and produced Mos.1 to 6. When the accused were questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances available against them, they denied their complicity.
6. The first accused filed a written statement and he had also chosen to examine himself as D.W.1. D.W.1 has stated in his evidence that on 14.02.1994 he married the deceased in a Church. Subsequently, he came to know that she was not a normal person and was not sleeping in the night and used to quarrel unnecessarily and he was informed by the deceased that the deceased had a feeling that somebody was talking to her. He understood that she was affected by the mental illness. When he informed P.W.1 father-in-law, P.W.1 asked him to send the deceased to his house for giving treatment. On 12.05.1996, the deceased gave birth to a female child. During May, 1997, he handed over his wife to P.W.1 for giving treatment. In the month of May, 1995, he left his wife in her parents house and the child was taken care of by the second accused. During September 1997, the deceased was sent to his house and he was also informed by P.W.1 that he would bear the medical expenses. The first accused was residing with his wife in a rented house at Sulur. He took the deceased to Doctor Pradeep- P.W.3 who gave treatment and P.W.4 Doctor Ragunathan also gave treatment to the deceased till 21.09.1997 for her mental illness. The deceased was not taking the medicine properly and the deceased wanted to go to her parents house. He took her to the parents house during May 2000. The deceased was sent back to his house during May, 2001 and during that period of one year, she was not given any treatment by her parents. He sent a notice through his lawyer on 02.06.2001 to P.W.1 to take care of his daughter, but there was no reply. On 13.10.2001, at about 8.30a.m., the deceased asked him to get tea packets. Therefore, he went to the grocery shop and on his return, he saw a smoke emanating from the house and the door was locked inside. With the help of the neighbours Anandan, Boopathy and Kandasamy, he broke open the door and went inside the house and found the deceased with burn injuries. He informed his father-in-law and also gave complaint to the police.
7. The trial Court after analysing the evidence, convicted both the accused and sentenced them as already stated above.
8. Mr.S.Ashok Kumar, learned Senior Counsel appearing for the accused submitted that the deceased was affected by mental illness even prior to her marriage and it was suppressed to the accused. The accused who came to know after the marriage about the mental illness of the deceased, had taken steps to give treatment and the said fact is also established even by the evidence of Doctors P.Ws.3 and 4. The deceased had committed suicide not due to any ill-treatment by the accused and there was no demand of dowry and there was no harassment to the deceased. It was only due to her mental illness. The deceased was not in a position to do any work and she could not even take care of her child and the child was only in the custody of the second accused. During the final stage, the deceased was in her parents house for a period of one year, during that period she was not given any treatment and the parents of the deceased did not take care to give medicines to her and that had aggravated her mental illness. As the first accused had an apprehension, he sent a notice through his lawyer to P.W.1 informing about her condition and Ex.P.7 would reveal that the first accused wanted P.W.1 only to take care of his daughter and to give treatment to her. Only in case of failure, it was informed though the notice that steps would be taken for divorce. As the death of the deceased occurred seven years after the date of marriage, Section 113-A of the Indian Evidence Act is not attracted and no presumption could be drawn against the accused and as such, there is no material to attract the ingredients of the offence under Section 306 IPC.
9. The learned Senior Counsel further submitted that even though it is stated by P.W.1 and others that there was a demand for a sum of Rs.50,000/-, even according to the witnesses no such amount was paid. Only for the purpose of the case, the witnesses have given a false version that the accused demanded money. Even the letters said to have been written by the second accused and the brother of the first accused do not reveal any demand for any amount, but they expressed their anger regarding the suppression of the fact that the deceased was mentally affected even prior to the marriage.
10. The learned Senior counsel also drew the attention of this Court regarding the charge framed against the accused and submitted that even the charge do not reveal that there was any unlawful demand of money or the deceased was ill-treated or harassed for the purpose of any unlawful demand. Even as per the charge, the deceased was affected by mental depression and she was not given treatment. As per the available records, it was only the accused who took steps for giving treatment to the deceased, whereas the deceased was in her parents house during May 1999-2001, but no treatment was given during that period.
11. Per contra, the learned Special Public Prosecutor for CBI submitted that the deceased was not affected by any mental illness, but she was affected only by mental depression and the conduct of the accused 1 and 2 have aggravated the situation, which induced the deceased to commit suicide. The first accused also sent a notice Ex.P.7 to P.W.1 stating that he would take steps for divorce. It is not the case that the deceased made any attempt to commit suicide earlier. Learned Special Public Prosecutor further submitted that even if it is taken as Section 306 IPC is not made out, the offence under Section 498-A is made out against both the accused and the letters Exs.P.1, P.2, P.3 and P.5 would show that how far the deceased was treated cruelly and the mental agony given to the deceased which drove her to the extent of committing suicide. The second accused, mother-in-law had used the abusive language in the letters written to the deceased and her father.
12. The learned Special Public Prosecutor for CBI also relied on the decision reported in 1994 SCC (Cri.) 107 (State of West Bengal vs. Orilal Jaiswal and Another) and 2004 SCC (Cri.) 1417 (Kaliyaperumal and Another vs. State of Tamil Nadu).
13. By way of reply, learned Senior Counsel appearing for the appellants submitted that the letters said to have been written by the second accused during the year 1995 and 1997 would show that the second accused being the mother of the first accused on seeing the life of her son who had been cheated by P.W.1 by suppressing the fact that the deceased was mentally ill had only vented out her anger. The mental illness was even a ground for getting divorce and as such, the second accused having expressed her feelings being disappointed cannot be said to have committed an offence even under Section 498-A IPC. It was only the second accused who had all along taken care of the child of the deceased. The second accused was living separately and she was not residing with the deceased and the first accused.
14. Learned Senior counsel also relied on the decision of the Honourable Supreme Court reported in 2007 (4) CTC 158 (Kishorilal vs. State of Madhya Pradesh) and (2001) 10 SCC 736 (Inderpal vs. State of Madhyapradesh).
15. This Court considered the submissions made by both parties and perused the evidence and all the records.
16. The marriage of the first accused Dayalan Babu and the deceased, Joy Amutha Rani was performed on 14.02.1994 in a Church. The deceased had committed suicide by self-immolation on 13.10.2001 which is seven years after the date of marriage. This is not a case of dowry death. The charge against both the accused for the offence under Section 306 IPC reads out that the accused knowing that the deceased was affected by the mental depression disease, gave trouble and thereby induced her to commit suicide. It is the case of the defence that the deceased was affected by mental illness even prior to the marriage, but the parents and the relatives of the deceased do not accept it. The prosecution itself examined the psychiatrist doctors P.W.3 and P.W.4 who gave treatment to the deceased during 1997 and 1998. While the deceased was taken to these Doctors for treatment, she was living with her husband. P.W.3 Doctor had given evidence he gave treatment to the deceased during the period 1997 to 1998 for seven times. P.W.3 is not describing the name of the disease. He had stated that the medicine which was given to the deceased is the medicine for serious mental illness. He also admitted in the cross examination, that there is a possibility for committing suicide for a person who is affected by such mental illness. P.W.4, the other Doctor who gave treatment from 06.03.1998 to 29.01.1999 had deposed that the deceased was affected by mental illness and because of the illness, she would often suspect others and she was hearing illusionary voices. He also deposed in the cross examination that the person affected by psychosis may commit suicide. He also stated that the person affected by such illness should take medicine regularly and there is a possibility of cure from 70% to 80%. In Ex.P.8 series, the prescriptions given by P.W.4, it is mentioned that the deceased came with her husband and she had history of hearing voices inside the head. Both Doctors P.W.3 and P.W.4 do say that the patient was affected only by mental depression and she had no mental illness. According to P.W.4, he wanted the deceased to be admitted as inpatient for giving treatment. But she was not admitted. From the evidence of P.Ws.3 and 4a and Ex.P.8 series it appears that the deceased was affected by Schizophrenia. According to Modi’s Medical Jurisprudence and Toxicology, ”a patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions.” The prosecution itself had established the fact that the deceased was affected by psychiatric illness and as such, it is not possible to accept the contention of the learned Special Public Prosecutor that the deceased was affected by mental depression and that there was no mental illness.
17. The deceased was left in the house of her parents from May 2000 to May 2001. According to the first accused, in his evidence, he had stated that the deceased was given treatment till 21.01.1999, but she had not taken medicines regularly and therefore she was left in the house of her parents. P.W.1 father of the deceased and other relatives do not say that the deceased was given treatment. P.W.6 sister of the deceased had specifically given evidence that the deceased was staying in her parents house. Without giving any treatment to the deceased, it appears that P.W.1 had sent his daughter, the deceased again to her matrimonial home on 31.05.2001. The first accused also sent a notice Ex.P.7 to P.W.1 on 02.10.2006 through his lawyer stating that the deceased must be taken back again by P.W.1 for giving treatment and she must be sent back to the matrimonial home after being cured. Though there was a moral responsibility for both the husband of the deceased as well as the father of the deceased, it appears that both have neglected to take care of the deceased and the ball had been thrown kicked from one court to another.
18. The question now arises for consideration is whether the accused would be liable under Section 306 IPC, even though they failed in their duty to give continuous treatment to the deceased. As the death of the deceased occurred only seven years after the date of marriage, the presumption available under Section 113-A of the Indian Evidence Act does not come into effect in this case. On the facts available, it is to be seen whether the accused had abated the deceased to commit suicide as defined under Section 107 of IPC which 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.”
19. It is observed by the Honourable Supreme Court of India in the decision reported 2007(4) CTC 158 (Kishori Lal vs. State of Madhya Pradesh) as follows:
“7.In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. [See Mahinder Singh v. State of M.P., 1995 AIR SCW 4570]. Merely on the allegation of harassment conviction in terms of Section 306 IPC is not sustainable. There is ample evidence on record that the deceased was disturbed because she had not given birth to any child. P.Ws.8, 10 and 11 have categorically stated that the deceased was disappointed due to the said fact and her failure to beget a child and she was upset due to this.”
20. In the decision of the Honourable Supreme Court reported in 1994 SCC (Cri.) 104 (State of West Bengal v. Orilal Jaiswal and another), it has been held as follows:
“17…………. We may add here that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”
21. Even though the first accused failed to maintain his wife and neglected her and sent notice Ex.P.7 and second accused also had been party to that as there is no direct evidence, it cannot be said that they instigated or intentionally aided the deceased to commit suicide. Therefore the accused 1 and 2 / appellants are not liable under Section 306 IPC.
22. As it was contended by the learned Special Public Prosecutor that even though the accused are not liable under Section 306 IPC, they are liable under Section 498-A IPC, in view of the evidence available and the documents Exs.P.1 to P.3, P.5 and P.7, it has to be now analysed as to whether the accused 1 and 2 are liable under Section 498-A IPC. It is the evidence of P.W.1 that after the marriage, the first accused and the deceased were living happily for three months and thereafter the first accused demanded money for constructing a house and he also demanded a sum of Rs.50,000/- to start a business for his brother. Though money was demanded , P.W.1 has stated that he has not paid that amount, but he had not stated that the deceased was harassed or ill-treated by the accused for not paying amount demanded. Even these demands said to have been made prior to the year 1995. It is the further evidence of P.W.1 that during the period 1998 and 1999, he had given a sum of Rs.1000/- every month to the first accused through demand drafts. According to P.W.1, it was given for the purpose of family expenses, but according to the first accused, it was given for the medical expenses. Even if it is to be held that the amount of Rs.1000/- as unlawful demand, P.W.1 had not stated that for the purpose of getting Rs.1000/-, the deceased was harassed or ill-treated by the first accused. P.W.1 in his Chief examination had not stated that the deceased was ill-treated by her husband, but had only stated that the first accused wanted to divorce for the reason that the deceased was mentally ill.
23. P.W.5 mother of the deceased had made one allegation against the first accused stating that six months after the marriage, the deceased informed her that she was not given food properly and she was beaten. This part of the evidence given by P.W.5 the statement said to have been made by the deceased could be used only under Section 32(1) of the Indian Evidence Act only for the purpose of deciding the issue regarding the cause of death of the deceased or as to any of the circumstance of the transactions which resulted in the death of the deceased. Having observed already that the accused are not liable under Section 306 IPC, this part of the evidence could not be used against the accused while dealing with an offence under Section 498-A IPC as it becomes inadmissible in view of the decisions of the Honourable Supreme Court reported in:
a. 2001(10) SCC 736 (Inderpal vs. State of Madhyapradesh) wherein it has been held as follows:
“7.Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P.7 or Exhibit P.8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.”
b. AIR 2009 SC 2603 (Bhairon Singh vs. State of Madhyapradesh) wherein it has been held as follows:
“11. The moot question is: whether the statements attributed to the deceased could be used as evidence for entering upon a finding that the accused subjected Ranjana Rani alias Raj Kumari to cruelty as contemplated under Section 498-A IPC. In our considered view, the evidence of P.W.4 and P.W.5 about what the deceased Ranjana Rani alias Raj Kumari had told them against the accused about the torture and harassment is inadmissible under Section 32(1) of the Evidence Act and such evidence cannot be looked into for any purpose. Except Section 32(1) of the Indian Evidence Act, there is no other provision under which the statement of a dead person can be looked into in evidence. The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question. What has been deposed by P.W.4 and P.W.5 has no connection with any circumstance of transaction which resulted in her death. The death of Smt.Ranjana Rani alias Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498-A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid the evidence of P.W.4 and P.W.5 is hardly an evidence in law to establish such offence. In that situation Section 32(1) of the Evidence Act does not get attracted.”
24. The learned Special Public Prosecutor strongly relied on the documents Exs.P.1,P.2 and P.3 the letters said to have been written by the second accused wherein the deceased and P.W.1 have been abused. Ex.P.2 is the letter written by the second accused to the deceased. The reading of Ex.P.2 dated 08.08.1995 shows that the deceased had gone to her parents house without taking the child and the child was under the care of the second accused. Even in Ex.P.2, it is stated that the deceased was affected by mental illness. She had expressed her feelings that her son, the first accused had been cheated by P.W.1 and others by suppressing the fact that the deceased was affected by mental illness even prior to the marriage. He only stated that she was shedding tears on seeing her son who got an insane person as his wife. Similarly in Ex.P.1 dated 20.09.1997, the letter written by the second accused to P.W.1, she had expressed her intention that the deceased who was an insane person should not join her husband, but at the same time, she did not want to give the custody of the child to the deceased. Ex.P.3 is another letter dated 18.03.2001 written by the second accused to P.W.1. This letter has been written after the deceased joined her husband on 31.05.2001 and after Ex.P.7 lawyer notice being sent by the first accused to P.W.1. The second accused had questioned P.W.1 as to why he had sent his daughter again to the matrimonial home as she was mentally ill. The deceased was not having her ‘Thalli’ in her neck and being mad, she had removed and thrown it. The letters Exs.P.1 to P.3 are written by the second accused only by way of venting out her anger due to the reason that her son had married the deceased who was mentally ill and the fact of her mental illness has been suppressed to them. Ex.P.7 dated 02.06.2001is the lawyer notice sent by the first accused to P.W.1. It is mentioned in Ex.P.7 that on 31.05.2001 the first accused brought his wife to the matrimonial home since he insisted her husband to take her home. Though the first accused had brought his wife to his house, he had the apprehension that due to the mental illness, she may do something. In the said circumstances, the first accused wanted only P.W.1 to take back his daughter to his house and to give medical treatment. It was also mentioned in Ex.P.7 only in case of failure to do so, the first accused would take steps for divorce. A reading of Ex.P.7 in its entirety cannot be termed as divorce notice. The dispute was only because of the mental illness of the deceased and not due to any harassment for unlawful demand or due to any cruelty to which the deceased was subjected. There is no evidence that the accused conducted themselves willfully to drive the deceased to commit suicide.
25. For the above said reasons, the prosecution has not made out its case against the accused even for the offence under Section 498-A IPC.
In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on both the accused 1 and 2 by the trial Court for the offences under Sections 306 and 498-A IPC are set aside. The fine amount if any paid shall be refunded to the accused.
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