CRL A/948/2007 of KUMAR Vs THE INSPECTOR OFP OLICE on 23 December 2010

JUDGMENT

The appellants were convicted for an offence under Sec.498-AIPC and each sentenced to undergo R.I for 3 years and to pay a fineof Rs.1,000/- each, in default to undergo RI for 3 months and werefurther convicted for an offence under Sec.306 r/w 34 IPC and eachsentenced to undergo RI for 7 years and to pay a fine of Rs.1000/-each, in default, to undergo RI for 3 months by the learnedAdditional Sessions Judge (Fast Track Judge-2), Kancheepuram dated4.10.2007 in S.C.No.135 of 2007.

2. The case of the prosecution is as follows:

The deceased Mutharasi was the daughter of P.W.1. Ethammal. Whenshe was studying IX Standard, she fell in love with the firstappellant and both of them were married at Ekambaranathar Temple atKancheepuram against the wishes of P.W.1. After their marriage, theylived for three months in their village at Kaliapatti. Thereafter,they came to Kancheepuram and started living. The 2[nd] appellant isthe mother of the first appellant. They lived together for nineyears. The first appellant and the deceased had two children born tothem out of the wedlock. However, of late, the appellant starteddemanding dowry from the deceased. P.W.1 gave presentation to herdaughter. She also purchased a house site in the name of her daughterand constructed a hut. The deceased and the first appellant wereliving in the house.

3. The first appellant was employed in a die factory. He wasirregular in going to work. Since the appellants were demanding motorcycle, P.W.1 gave Rs.10,000/-. Even thereafter, the appellants weredemanding more money and the second appellant was telling that shewould get her son married to another woman. The deceased was tellingto P.Ws.1 and P.W.7 about the demand of vehicle and jewels and alsoabout the cruel treatment of the appellants. On 4.9.2006 around 7.00a.m, the first appellant quarreled with the deceased, pouredkerosene over the deceased and left the house chiding her to burnherself and die. At 7.30 a.m, unable to bear the cruelty of theappellants, the deceased poured some more kerosene and set fire toherself.

4. The 2[nd] appellant and her second son Prakash took the deceasedto the Government General Hospital, Kancheepuram where she wasadmitted. The Sub Inspector of Police, Kancheepuram Taluk PoliceStation recorded the statement of the deceased and registered a casein Cr.No.1242 of 2006 under Sec.498(A) and 307 IPC r/w 4 of DowryProhibition Act.

5. A request was sent to the learned Magistrate for recordingher statement. The Judicial Magistrate No.I, Kancheepuram went to thehospital and on 4.9.2006 at 10.10 a.m and recorded her statement at10.35 a.m. The deceased succumbed to burn injuries on 6.9.2006 at2.15 p.m. On receipt of the intimation, the Inspector of Police,Taluk Police Station altered the first information report to 498-A,304-B IPC and Sec.4 of Dowry Prohibition Act. He proceeded to theHospital and conducted the inquest. He requested for a post mortemand post mortem was conducted. The Inspector of Police examined thewitnesses and also obtained post mortem certificate and aftercompletion of investigation, laid a charge sheet against theappellants for the offence under Secs.498-A, 306 r/w 34 IPC beforethe learned Judicial Magistrate No.II, Kancheepuram. On committal,the case was transferred to the learned Additional Sessions Judge, Kancheepuram for trial. The case was taken on file in S.C.No.135 of2007 and on the appearance of the accused, charges were framed and ondenial of charges, trial was conducted. The prosecution examined 13witnesses, marked 17 documents produced 2 M.Os.

6. On the basis of oral and documentary evidence, the learnedAdditional Sessions Judge found that the appellants are guilty foroffence under Secs.498 -A 306 r/w 34 IPC and imposed the sentences asstated above. Aggrieved by which, the appellants are before thisCourt.

7. Mr.R. Vijayakumar, the learned counsel for the appellantwould submit that when there are two inconsistent dying declarationby the deceased, the trial court ought not to have relied on thosedying declarations. The learned counsel pointed out that when the SubInspector of Police recorded a statement from the deceased at10.00 a.m, the deceased would state that the appellants weresubjecting her to cruelty which drove her to take the extreme step.

8. The learned counsel pointed out that when a dyingdeclaration was recorded by the learned Magistrate at 10.35 a.m, thedeceased had stated that there was difference of opinion about thefirst appellant's brother's marriage and the first appellant did notlike the comment given by the deceased and told her to die.

9. The learned counsel pointed out that there is no evidence toshow cruelty and there is no evidence for abetting the suicide andtherefore, the trial court is wrong in convicting the appellants forboth offences.

10. On the contrary, Mr.A. Senthil Kumar, for Additional PublicProsecutor would submit that in the dying declaration, the deceasedhad categorically stated that the first appellant had poured keroseneand uttered the word "set fire to yourself and die", which willsquarely attract the offence under Sec.306 IPC. The learned counselalso submitted that the deceased had stated that the appellants weresubjecting the deceased to cruelty which would attract the offenceunder Sec.498-A IPC.

11. Heard both sides and perused the materials available onrecord.

12. The appellants are mother and son, who stand convicted forthe offences under Sec.498-A and 306 IPC. The specific case of theprosecution is that the appellants were subjecting the victim tocruelty. The nature of cruelty is spoken about by the mother of thedeceased, who was examined as P.W.1, the brother of the deceased,P.W.2 and the maternal aunt, P.W.7.

13. Sec.498-A reads as follows:

498A. Husband or relative of husband of awoman subjecting her to cruelty:-

Whoever, being the husband or the relative ofthe husband of a woman, subjects such woman tocruelty shall be punished with imprisonmentfor a term which may extend to three years andshall also be liable to fineExplanation:-For the purposes of this section,'cruelty' means - (a) any wilful conduct which is of such anature as is likely to drive the woman tocommit suicide or to cause grave injury ordanger to life, limb or health (whether mentalor physical) of the woman;or (b) harassment of the woman where suchharassment is with a view to coercing her orany person related to her to meet any unlawfuldemand for any property or valuable securityor is on account of failure by her or anyperson related to her to meet demand".

14. It is well settled that the cruelty which drive the woman tocommit suicide should have been committed immediately prior to theoccurrence. Likewise, to attract the provision under Sec.306 IPC,there must be an instigation by a person to do the particular thingor there must be an intentional aid by any act or illegal omission.Sec.306 IPC reads as follows:

"Abetment of suicide: If any person commits suicide,whoever abets the commission of suchsuicide, shall be punished withimprisonment of either descriptionfor a term which may edtend to tenyears,and shall also be liable tofine" 15. It is well settled that merely saying "go and die" do notconstitute either cruelty or abetment. As far as the present case isconcerned, there is a dying declaration given by the deceased. In thebeginning part of it, the deceased would state that the appellantswere demanding money and jewels and used to beat her for the lastthree months prior to the occurrence.

16. In the middle part of the statement she would state that inthe previous night, A.1 had beaten her. She would state her brother-in-law one Prakash was in love with a girl for which the 2[nd] appellantwas not agreeable and the deceased seemed to have stated that atleastfor Prakash, they must perform the marriage in a proper manner.Infuriated by this, the first appellant had beaten her and on thenext morning, he poured kerosene on her and said "you set fireyourself and die". In the later part of the statement, she wouldstate that after he left she poured herself the rest of kerosene andset fire to herself. Admittedly, the 2[nd] appellant was livingseparately. Though in the statement to the police the deceased hadnarrated various acts of cruelty by the appellants, in the dyingdeclaration she would state that the first appellant had assaultedher only on the issue of her brother-in-law Prakash's marriage. Eventhereafter, nothing had happened. Only on the next day morning, shewould allege that the first appellant poured kerosene and said burnand die.

17. There is no allegation against the second appellant.Therefore, the conviction and sentence passed against the secondappellant are unsustainable.

18. As far as the first appellant is concerned, the deceasedwould state that in the previous night, he had beaten her and in thenext day morning, after he left she poured kerosene and set fire toherself. Therefore, I am of the considered view that the appellanthas committed an offence under Sec.498-A an act of cruelty whichdrove his wife to commit suicide by self immolation. The offenceunder sec.306 IPC is not made out.

19. Therefore, the finding of the trial court that the 1[st]appellant is guilty for the offence under Sec.306 IPC is notsustained and is liable to be set aside. But the finding that the1[st] appellant is guilty for the offence under Sec.498-A IPC issustainable and to be confirmed.

20. Accordingly, the first appellant is convicted for theoffence under Sec.498-A IPC and it is understood that he has alreadyundergone the sentence for more than a year. It is also submittedthat there are two girl children to be taken care of. Therefore, tomeet the ends of justice, the period already undergone by the 1[st]appellant suffices as sentence. The fine amount imposed by thetrial court is confirmed.

21. In the result, the criminal appeal is partly allowed. Theconviction and sentence including the fine passed by the learnedAdditional Sessions Judge (Fast Track Judge-2), Kancheepuram dated4.10.2007 in S.C.No.135 of 2007 against the second appellant are setaside and the fine amount, if already paid by the second appellant,

is ordered to be refunded. Bail bond executed by the second appellantshall stand cancelled.

22. The conviction of the first appellant for the offence underSec.306 IPC and sentenced to under go R.I for 7 years and to pay afine of Rs.1000/- are set aside and the fine amount, if any paid, isordered to be refunded.

23. However, the conviction of the first appellant for theoffence under Sec.498-A IPC is confirmed and the sentence imposed onthe first appellant to undergo R.I for 3 years is reduced to theperiod already undergone and the fine imposed on him is confirmed.Bail bond executed by the first appellant shall stand cancelled.

Sd/Asst.Registrar/true copy/

Sub Asst.Registrar

srTo

1. The Judicial Magistrate No.II, Kancheepuram

2. The Chief Judicial Magistrate Chengalpattu3. The Additional Sessions Juge Fast Track Court-II, Kancheepuram

4. The Superintendent, Central Prison, Puzhal, Chennai

5. The Public Prosecutor, High Court Madras

6. The Inspector of Police, Kanchi Taluk Police Station Kancheepuram copy to :The Section Officer, Criminal Sessions, High Court, Madras Judgement in C.A. No.948 of 2007