Excerpt:when there is a long and remarkable delay, it is expected that the prosecution has to furnish proper explanation. When there is no justification for the police to retain the F.I.R. for a long time i.e., for a period of 39 days, reasonable doubt arises. In the view of the Court, the delay raises serious doubt over the prosecution version.
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.02.2012 CORAM THE HONOURABLE MR. JUSTICE S.PALANIVELU CRL.A.No.576 of 2006 1. Hari Krishnan 2. Chandran 3. Thayyal Nayagi .. Appellants/Accused 1 to 3 Vs State represented by Assistant Commissioner of Police, Tambaram Range, Chitlapakkam Police Station. (Crime No.75 of 2005) .. Respondent/Complainant Appeal filed under Section 374(2) Cr.P.C., praying to call for the records and set aside the conviction and sentence passed in S.C.No.552 of 2005, by the learned Additional District Sessions Judge, Fast Track Court No.1, Chenglepet, dated 26.06.2006 and acquit the appellants/accused. For Appellants : Mr.P.N.Prakash For Respondent : Mr.C.Balasubramanian Addl.Public Prosecutor. - - - - - JUDGMENT
The appellants herein are the accused 1 to 3 in S.C.No.552 of 2005 on the file of the learned Additional District Sessions Judge, Fast Track Court No.1, Chenglepet, and they stand convicted for the offences under Sections 498(A) and 306 I.P.C., and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for three months for the offence under Section 498(A) I.P.C. and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for six months for the offence under Section 306 I.P.C. and the sentences were ordered to run concurrently. The sentences were also suspended and the appellants were released on bail, pending disposal of the appeal, on their executing a bond for a sum of Rs.5,000/- with two sureties each for a like sum to the satisfaction of the learned Judicial Magistrate No.I, Tambaram.
2.The following is the summary of the prosecution case sans unnecessary details:-
(i)The first accused is son of accused Nos.2 and 3. The deceased Kasthuri is wife of first accused. The marriage of the first accused with the deceased was solemnized on 12.02.2002 and they were residing as joint family with accused Nos.2 and 3. On 18.02.2005, at about 2.30 a.m., the deceased Kasthuri committed suicide by drowning in the sintex overhead water tank which was placed upon the apartment in which their house is situate. On receipt of the information, P.W.1, the brother of the deceased and his parents rushed to the hospital where she was pronounced dead. With regard to the occurrence, P.W.1 lodged a complaint-Ex.P.1 alleging that on receiving the phone call, he came to the Government Hospital at Chrompet and found the dead body of the deceased and that he has got suspicion over the death of his sister and hence action should be taken. He has mentioned as a note below the complaint that at the time of marriage, the deceased was offered with 20 sovereigns of gold jewels, cash of Rs.50,000/-, cot, bureau and other household articles and even afterwards there was a frequent demand of Rs.50,000/- and the accused have murdered his sister stating that she committed suicide.
(ii)On receipt of the complaint, P.W.5, the Sub-Inspector of Police registered a case in Crime No.75 of 2005 under Section 174 Cr.P.C. and prepared the First Information Report-Ex.P.7. He sent the First Information Report to the Revenue Divisional Officer, Chengalpattu and Xerox copy to the Deputy Superintendent of Police, Madippakkam Police Station. P.W.6, the Revenue Divisional Officer, Chengalpattu, on receipt of the First Information Report, proceeded to the Royapettah Government Hospital and conducted inquest over the dead body of the deceased and he prepared Ex.P.8-Inquest Report. He also prepared Ex.P.9-Report with an opinion that the deceased died due to the harassment by demand of dowry and sent the same to the Deputy Commissioner of Police, Madippakkam Police Station. On receipt of the copy of the report-Ex.P.9, P.W.8, the Deputy Superintendent of Police, altered the case into one under Sections 498(A), 304(B) and 306 I.P.C. under Ex.P.11 and sent the same to the Court. P.W.6 also gave requisition to the Medical Officer to conduct post-mortem over the dead body of the deceased. P.W.4, Doctor attached to Royapettah Government Hospital held autopsy over the corps of the deceased and issued Ex.P.4-Post-mortem Certificate. He found the following external injuries on the body of the deceased.
“1)Contused abrasion over outer aspect of lower third of left arm 9 x 6 x 2.5 cm
2)Contused abrasion over right side of face 6 x 4 x 2 cm.”
(iii)P.W.4 sent the viscera for Chemical and Toxicological examination. Ex.P.5 is the report from the Toxicological Division of Forensic Science Laboratory in which it is stated that Organo Phosphorous Compound was detected in stomach and intestine. In Liver and Kidney, Brain, Blood and Preservative Saline, Organo Phosphorous Compound was not detected. In Ex.P.5 it is also noticed that Organo Phosphorous Compounds are poisonous and are used as Insecticide. After scrutiny of the said fact, the Doctor has given a final opinion under Ex.P.6 to the effect that the deceased would appear to have died of asphyxia due to drowning with organo phosphorous.
(iv)P.W.7, the Deputy Superintendent of Police, Madipakkam, on receipt of the First Information Report, went to the scene of crime and prepared Ex.P.22-Observation Mahazar and drew a Rough Sketch-Ex.P.10. He examined the witnesses and recorded their statements. His next incumbent P.W.8 took up the case for further investigation and arrested the accused on 20.03.2005 in front of their house and sent them to judicial custody. On completion of the investigation, he laid a charge sheet against the accused for the offences under Sections 498(A), 306 and 304(B) I.P.C.
3.After the prosecution evidence was over, the trial Court questioned the appellants/accused 1 to 3 under Section 313 Cr.P.C. as regards incriminating materials available against them in the prosecution evidence. They denied the complicity to the offence. The first accused has stated at the time of questioning under Section 313 Cr.P.C.; that his wife was mentally ill and she used to go to her parents’ house frequently; that on enquiry, his father-in-law would say that the time was not fortunate and gave a prescription sheet and asked him to get medicines for his daughter and he was also giving the medicines; that for about one month, his wife has not taken medicines and that he did not demand any dowry. Further, on 17.02.2005, both himself and his wife were happy and in the midnight he found his wife missing, searched her and saw her in the water tank drowned, that on hearing his alarm, the neighbours came and his wife was taken up and removed to the hospital where she was pronounced dead and thereafter, he went to Chitlapakkam police station and lodged a complaint; that the police took the body to Chrompet Government Hospital; that the Chitlapakkam police sent him to the house and after 40 days, he was arrested by the police on the charge that he had demanded dowry.
4.The accused have examined three witnesses and marked Ex.D1 series.
5.After analysing the evidence and materials on record, the learned Additional District Sessions Judge, Fast Track Court No.1, Chenglepet, found the accused not guilty under Section 304(B) I.P.C. and found the accused guilty under Sections 498(A) and 306 I.P.C. and sentenced them as stated above. Challenging the said conviction and sentence, the appellants are before this Court.
6.The point for consideration is, “whether the prosecution has established the charges framed against the appellants/accused under Sections 498(A) and 306 I.P.C. beyond all reasonable doubt?”.
6[a]. Mr.P.N.Prakash, learned counsel appearing for the appellants would enlist various improbabilities available in the prosecution case so as to suspect the prosecution version and also takes the Court to the settled legal principles as laid down by the Hon’ble Supreme Court. It is his contention that there is absolutely no evidence to show that there had been a demand of dowry; that there is no nexus between the appellants and the alleged materials for charges which should have been available in the prosecution evidence; that the genesis of the case has been suppressed by the police; that the inordinate delay which remains unexplained in the F.I.R. reaching the Court; that the Court below has failed to appreciate the evidence both in oral and documentary adduced on behalf of the appellants with reference to the mental illness suffered by the deceased in a proper perspective and that the prosecution has not established its case against the appellants/accused beyond all reasonable doubt.
6[b]. The learned Additional Public Prosecutor would contend that the evidence of P.Ws.1 and 2 is convincing which are dully corroborated by the other evidence on record; that as found by the trial Court, the medical evidence as projected by the appellants have not been properly proved and there is no convincing evidence to show that the deceased was suffering from mental derangement; that the delay in F.I.R. has been properly explained by the chronological sequences as put forth by the prosecution witness and that the charges have been proved by the prosecution beyond reasonable doubt.
6[c]. P.W.1 lodged a complaint on 18.02.2005 at 8.30 a.m., and the First Information Report and the complaint reached the hands of the learned Judicial Magistrate, Tambaram, on 29.03.2005. There is absolutely no explanation from P.W.5 and P.W.7. P.W.5, the Sub-Inspector of police, who registered the First Information Report, would say in his cross-examination that the Judicial Magistrate Court at Tambaram is two kilometers away from the police station and the police constables are attending the Court every day. Even there is no proper explanation from the officials concerned, the Court below has recorded finding to the effect that after the occurrence, the enquiries by the Revenue Divisional Officer and the investigation by the police personnel have been taken up and the other circumstances would go to show that the delay is not material. However, it is true that the further investigation has been taken up immediately. But when there is a long and remarkable delay, it is expected that the prosecution has to furnish proper explanation. When there is no justification for the police to retain the F.I.R. for a long time i.e., for a period of 39 days, reasonable doubt arises. In the view of the Court, the delay raises serious doubt over the prosecution version.
6[d]. With reference to the medical evidence, there are some external injuries in the form of abrasions over the body of the deceased. With the presence of these injuries it could not be inferred that the deceased might have been beaten to death. The learned counsel for the appellants would submit that as mentioned in the Post-mortem Certificate, after consuming the poisonous insecticide, the deceased, out of her mental illness, fell into the water tank and while she was struggling inside the tank in the water, the scratches could have been caused. This Court sees considerable force in his arguments. Except the above said reasons, there is no other circumstance to conclude that there may be some other choices for the injuries on the deceased.
6[e]. It appears that the deceased has taken two ways to end her life. Firstly, she had taken up insecticide poison and afterwards she fell into the water tank and got drowned. The toxicological report would show that the stomach and intestine contained the Organo Phosphorous poisonous substance while the other elements viz., Liver and Kidney, Brain, Blood and Preservative Saline did not contain such poisonous substance. This would go to show that before absorption of the poison into the blood and the intestine she died of asphyxia.
6[f]. With reference to the demand of dowry, the Court has to see the evidence pertaining to the demand by the appellants. In the complaint, there is no detailed versions with regard to the demand of dowry. However, P.W.1, in his evidence, would say that four months after the marriage, all the accused demanded cash of Rs.50,000/- for construction and extension of the house; that when P.W.1, his mother and father went to the house of the accused, they demanded Rs.50,000/-, besides saying that they did not have source to pay the amount but they came to offer Aadi varisai and the second accused pricked the eye of the deceased with a finger and second and third accused told that they have to be beaten with chappal and asked them to go out; that P.W.1 wrote a letter to the second accused stating that they have already given sufficient gold jewels and seer varisai and why they asked Rs.50,000/-; that the accused had been harassing his sister by demanding money; that the first accused is a drunkard and he used to beat his sister on intoxication and that afterwards P.W.1 was informed that his sister had committed suicide.
6[g]. P.W.2, the father of the deceased, would say that in the year 2002, they went to the house of the accused to offer Aadi seer varisai and on 18.02.2005, he got an information about the death of his daughter. The above said evidence would go to show that after Aadi, there had been no demand of dowry till the date of death i.e., on 18.02.2005.
6[h]. The learned counsel appearing for the appellants would argue that when there is no convincing evidence on record to show that there had been continuous harassment of demand of dowry on the part of the accused, then no offence would be made out under Section 498(A) I.P.C.. Further, P.W.7, the Deputy Superintendent of Police in his cross-examination, states that the prosecution witnesses viz., P.W.1 and P.W.2 did not say about the demand of Rs.50,000/- cash as dowry when they went to the house of the accused at the time of offering Aadi varisai; that the deceased was pricked in her eye by the second accused and that the second and third accused assaulted them with chappal. Further, P.W.1 does not say in the police investigation that he wrote a letter to the second accused stating that it was not proper to demand dowry of Rs.50,000/- and that he was giving Rs.1,000/- or Rs.500/- then and there to his sister and that four months after the marriage, the accused began to demand Rs.50,000/- as dowry. In the same lines, questions were put to the Revenue Divisional Officer-P.W.6 and he also says that the prosecution witnesses viz., P.W.1 and P.W.2 did not say as such.
6[i]. The above said piece of evidence would go to show that there might not have been any demand of dowry and there is no convincing evidence to show that there had been a demand of dowry on the part of the accused. In this context, the learned counsel for the appellants placed much reliance upon the decision of the Hon’ble Supreme Court reported in 2002 AIR SCW 2140 [Girdhar Shankar Tawade Vs. State of Maharashtra], in which it is observed that in any event the wilful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498(A) and not dehors the same. The following is the operative portion of the said judgment.
“A faint attempt has been made during the course of submissions that explanation (a) to the Section stands attracted and as such no fault can be attributed to the judgment. This, in our view, is a wholly fallacious approach to the matter by reason of the specific finding of the trial Court and the High Court concurred therewith that the death unfortunately was an accidental death and not suicide. If suicide is left out, then in that event question of applicability of explanation (a) would not arise neither the second limb to cause injury and danger to life or limb or health would be attracted. In any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498(A) and not dehors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498(A). The legislative intent is clear enough to indicate in particular reference to explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of explanation (b).”
6[j]. It is also argued that when the Court is able to find that there are certain improvements in the evidence from the statements given earlier before the police by the prosecution witness, the Court need not show much importance to the same. For this proposition, a ratio laid down by the Hon’ble Supreme Court reported in (2011) 4 MLJ (Crl.) 312 (SC) [Shindo alias Sawinder Kaur and another Vs. State of Punjab] is relied upon. The following is the principle laid down by the Hon’ble Apex Court:-
“However, he was confronted with his statement under Section 161 of the Cr.P.C. and has forced to admit that no such demand had been referred to in the said statement. We find that the improvements made by P.W.2 Ajit Singh in his evidence in Court clearly spells out a case of doubt with regard to the veracity of his evidence.”
6[k]. It is also contended on behalf of the appellants that when the prosecution has failed to bring out the materials to infer that there was a demand prior to the date of occurrence, the accused could not be found guilty under Section 498(A) I.P.C. In 2001 AIR SCW 1913 [Arvind Singh Vs. State of Bihar], the Hon’ble Supreme Court has held as follows:-
“26.Significantly however, upon recording of the fact of no dowry demand prior to the date of occurrence the High Court thought it fit to record that charge under S.498-A stands proved and as such passed the sentence. We are however unable to record our concurrence therewith torture is a question of fact there must be proper effort to prove that aspect of the matter, but unfortunately not even an attempt has been made nor any evidence tendered to suggest the same excepting the bold interpolated allegations which stand disbelieved and ignored by the High Court, and in our view rightly.
27.On the wake of the aforesaid, charge under S.498-A also cannot be sustained! Both the learned trial Judge and the High Court are clearly wrong in not considering this aspect of the matter and thus fell into a serious and clear error.”
6[l]. The learned counsel appearing for the appellants also relies upon the judgment of mine reported in CDJ 2011 MHC 5906 [State rep. by Inspector of Police Vs. Sheik Uthuman Hakkim & Others]. While I have followed a decision of the Hon’ble Supreme Court in (2011) 2 SCC (Crl.) 1, [M.Mohan Vs. State], I observed that the Court has to see whether there is mens rea on the part of the accused to commit the offence. In the said judgment, the relevant portion stated in paragraph No.45 reads as follows:-
“45.The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide”
6[m]. In view of the above, it comes to light that there is no plausible evidence to conclude that there was dowry demand by the accused and the deceased was subjected to cruelty on this account.
6[n]. As regards the offence under Section 306 I.P.C., it is incumbent upon the prosecution to establish that the accused were instigating or inciting the deceased to commit suicide or intentionally abetted her to commit suicide, adequate evidence should be on record. On a careful scrutiny of the evidence on record, this Court is unable to infer that there was any incitement nor instigation on the part of the appellants driving the deceased to commit suicide. The learned counsel appearing for the appellants would contend that none of the ingredients in Section 107 I.P.C. is attracted in this case so as to make the accused guilty under Section 306 I.P.C. Section 107 I.P.C. deals with abetement of a thing, which goes as under:-
“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 the 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.
Illustration 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, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
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 facilitates the commission thereof, is said to aid the doing of that act.”
6[o]. As far as Section 306 I.P.C. is concerned, the accused persons should have been found to have abetted the commission of suicide. But, there is no satisfactory material available on record to show that the appellants instigated the deceased to commit suicide. In the considered view of this Court, the charge under Section 306 I.P.C. is not made out.
6[p]. Adverting to the evidence both oral and documentary placed before the Court by the appellants, the learned counsel for the appellants would submit that if the Court carefully considers the evidence produced by the appellants/accused, it could be seen that the deceased was really suffering from mental disorder and it should have been the cause for the commission of suicide. It is suggested to P.W.1 and P.W.2 in their cross-examination that for the mental disease suffered by the deceased, she was taken to one Doctor Malaiyappan, a psychologist, for treatment and she was also given medicines for the said disease. Doctor Malaiyappan was brought to box by the appellants, who is working as psychologist in the Institute of Mental Health, Kilpaukkam, besides practicing as a psychiatrist in Chengalpattu privately. He says that on 22.06.2004, he treated one Kasthuri as out patient; that he found in her hallucinations that is to say some illusions like suspicion and that somebody is doing harms to her; that if anybody is speaking, she would have the impression that they were speaking about her and hearing somebody’s tones and her suspicion was over the character of her husband; that he decided that she was subjected to a grave mental illness, for which he prescribed medicines for one month and the prescription sheet is Ex.D.1 and that if the patient does not take the medicines continuously, there is every possibility, for sometimes for increase in the gravity of the disease. This Court has gone through the prescription sheet given by the Doctor and the bills for medicines purchased for the deceased. D.W.2 is an Auto Driver. He would say that he is residing in a rental house owned by the first accused; that the first accused and his wife were living happily; that the deceased would be seen as if she was a psychiatric and used to go to her parents’ house frequently and she also would speak to herself. D.W.3 is also a neighbour of the first accused. His evidence is also in tune with that of D.W.2.
6[q]. The learned counsel for the appellants would submit that the Court may attach credence to the evidence of the defence witnesses in the same manner, as the evidence of the prosecution witnesses are considered. For this proposition, he garners support from a decision of the Hon’ble Apex Court reported in 2000 AIR SCW 1798 [State of U.P. Vs. Babu Ram], wherein in paragraph No.23, the Hon’ble Apex Court has held as follows:-
“23.Depositions of witnesses, whether they are examined on the prosecution side or defence side or as Court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a Court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.”
6[r]. In view of the above stated position, different yardsticks cannot be prescribed in the matter of appreciation of evidence produced by the prosecution and the defence. When this Court has carefully gone through the oral testimonies of the defence witnesses coupled with the medical records in Ex.D.1 series, it comes to light that the deceased was suffering from mental disorder and the effect of which might have driven her to commit suicide and the Court could not find any foul play on the part of the appellants.
6[s]. As regards the delay in lodging of First Information Report, the learned counsel for the appellants cites a decision of this Court in CDJ 2008 MHC 422 [Karuppaiah Vs. State rep. by the Deputy Superintendent of Police], in which I also constituted the Coram wherein it is observed as follows:-
“5. …… It remains to be stated that, no one of them informed about the incident either to P.W.1 or to the police till 24.09.2004. Section 161 Cr.P.C. statement of the said witnesses were recorded by the police only on 24.09.2004, but they reached the court only in the month of March, 2005. The prosecution has no explanation to offer as to why such delay has happened.”
6[t]. This Court has gone through the rival submissions with rapt attention and scrutinized the documentary piece of evidence produced by both sides. The charge under Section 498(A) I.P.C. has not been made out, since there is no convincing evidence to show that there had been a demand of dowry and the appellants have been continuously making such demand and there is no proximate cause for the case to attract the ingredients of Section 498(A) I.P.C. In so far as Section 306 I.P.C. is concerned, there is no material showing that the appellants instigated the deceased to commit suicide. The reasonable finding that could be recorded is that only by means of the mental derangement, the deceased committed suicide. In such view of this matter, the charges under Sections 498(A) and 306I.P.C. have not been established beyond reasonable doubt. The appellants are entitled to receive the benefit of doubt. The judgment of conviction and sentence passed by the trial Court is not sustainable and it is liable to be set aside. The point is answered accordingly.
7.In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant/accused in S.C.No.552 of 2005 by the learned Additional District Sessions Judge, Fast Track Court No.1, Chenglepet, are set aside and the appellant/accused are acquitted of all the charges framed against them. The bail bonds, if any, executed by the appellants/accused shall stand cancelled and the fine amount if any paid by the appellants shall be refunded to them.
28.02.2012 Internet : Yes Index : Yes jrl To 1. Additional District Sessions Judge, Fast Track Court No.1, Chenglepet. 2. The Assistant Commissioner of Police, Tambaram Range, Chitlapakkam Police Station. 3.The Public Prosecutor High Court, Chennai S.PALANIVELU, J. Crl.A.No.576 of 2006 28.02.2012