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2016 Supreme(Mad) 3550
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
P. Devadass, J.
Ayyappan - Appellant/Accused
Versus
State Rep.by The Inspector of Police, Arupukottai Town Police Station, Virudhunagar District in Cr. No. 938 of 2004 - Respondent/Complainant
C.R.L.A(MD) No. 449 of 2006
Decided On : 23-06-2016
For the Appellant :Mr. G. Mari Muthu, Advocate.
For the Respondent:Mr. P. Kandasamy, Govt. Advocate.
Headnote:
Indian Penal Code, 1860 - Section 302 and 306 – Criminal Produce Code, 1973 – Sections 162, 207 and 209 – Criminal Trial – Offence of Abetment of Suicide – Burn Injuries - Appellant had married deceased she is daughter of P.W.4. P.W.4s other daughter and son are P.W.1 and P.W.5 - Appellant and deceased were living in Village they were blessed with a child - However, not with a happy married life - There used to be frequent quarrel between them - On 26.12.2004, at about 12 noon, in her house, deceased was found with burn injuries - She was taken to Government Hospital, - On hospital intimation, P.W.11, then Inspector, Town Police Station, visited said Hospital - He recorded Ex.P13, statement from patient - Based on that, he registered this case FIR under Section 307 IPC - P.W.11 took up his investigation - Prepared observation mahazar in presence of P.W.10 and another person - He drew Ex.P15 rough sketch of scene house - He recovered M.O.3, a 5 litter can under seizure mahazar in presence of said witnesses - He had also seized burnt cloths M.Os.1 and 2 ( Ex.P17 seizure mahazar) - Held, As per dictionary meaning, it means provoke, aid, instigate a person to do an act or omit to do an act, which he is legally entitled to do - If one read Section 107 IPC., there would be similar meaning for the very same word, abetment used in 306 IPC. court have to arrive at same meaning - There must be mensrea for an overt act. Even for the allegation that a person has instigated, provoked another person to commit suicide, there must be intention on part of accused to do so - It is not wish of victim to commit suicide - The requirement of mensrea will be attributed only to the accused - There cannot be mensrea for a victim in criminal law - There must be intention or desire on the part of the accused that the victim should commit suicide, die - It is established that deceased was not happy that her husband was not given her necessary money to run the family. So, she committed suicide - It is pertinent to note that accused never thought, not even dream of that his wife should commit suicide - There is no intention on his part that his wife should bid good - bye to this world - Decision to put an end to her life has been taken by deceased herself unaccompanied by any required overt act, as prescribed in Section 306 r/w 107 IPC., came for accused she had taken a foolish decision - For her foolish act, accused cannot be punished - Conviction under Section 306 IPC., and sentence awarded are set aside - Criminal appeal is allowed.
P. Devadass, J.
The sole accused in the Sessions Case in S.C. No. 120 of 2005, on the file of the learned Principal Sessions Court, Virudhunagar District at Srivilliputtur, is the appellant.
2. He was tried for a charge for under Section 302 IPC. After trial, the Court recorded conviction, under Section 306 IPC., and sentenced him to three years R.I and also fined him Rs. 500/ -, in default, to undergo three months simple imprisonment. He has paid the fine amount.
3. The case of the prosecution briefly runs as under :-
(1) Around 2002, the appellant had married the deceased. She is the daughter of P.W.4. P.W.4's other daughter and son are P.W.1 and P.W.5. The appellant and the deceased were living in Palayampatti Village in Virudhunagar District. They were blessed with a child. However, not with a happy married life. There used to be frequent quarrel between them.
(2) In this background of the matter, on 26.12.2004, at about 12 noon, in her house, the deceased was found with burn injuries. She was taken to the Government Hospital, Aruppukottai. On hospital intimation, P.W.11 Mariappan, then Inspector, Aruppukottai Town Police Station, visited the said Hospital. He recorded Ex.P13, statement from the patient. Based on that, he registered this case (Ex.P.14 FIR) under Section 307 IPC.
(3) P.W.11 took up his investigation. He visited the scene place. Prepared Ex.P.16 observation mahazar in the presence of P.W.10 and another person. He drew Ex.P15 rough sketch of the scene house. He recovered M.O.3, a 5 litter can under Ex.P17 seizure mahazar in the presence of said witnesses. He had also seized burnt cloths M.Os.1 and 2 ( Ex.P17 seizure mahazar).
(4) On hospital intimation, P.W.9 then Special Tahsildar, Aruppukottai, on 26.12.2004, at about 7 p.m., visited the hospital. He recorded Ex.P10 dying declaration from the patient. The deceased told him that her husband had poured kerosene upon her and set fire on her.
(5) On 27.12.2004, at about 9 a.m., P.W.11 arrested the accused. Sent him to Court for judicial custody. On 06.01.2005, at the hospital, the deceased passed away. (Ex.P19 death intimation). In the circumstances, PW.11, altered the Section of law to Section 302 IPC. He submitted Ex.P20 alteration report to the Court. As the deceased had died within seven years of her marriage, P.W.8, R.D.O., Aruppukottai, conducted inquest over her dead body. After him P.W.7, R.D.O., continued the inquest (inquest report Ex.P7). P.W.11 recorded the statement of the material witnesses under Section 161 Cr.P.C.
(6) On the request of P.W.11, P.W.6 the Doctor, conducted postmortem on the dead body of the deceased. P.W.6 opined that she died of burn injuries (Exs.P3 and P4 Postmortem certificate and final opinion).
(7) Concluding his investigation, P.W.11 filed the final report in the committal Court, under Section 302 IPC., as against the appellant.
4. As the offence alleged is exclusively trial by a Court of Sessions, after completing the statutory formality, under Section 207 Cr.P.C., the learned Magistrate committed the case to the Court of Principal Sessions Judge, Virudhunagar District at Srivilliputhur, under Section 209 Cr.P.C.
5. The learned Sessions Judge upon hearing both sides and on consideration of the case records, framed a charge under Section 302 IPC and questioned the accused. The accused pleaded not guilty to the charge.
6. To substantiate the charge, prosecution examined P.Ws.1 to 11 marked Exs.P1 to 20 and exhibited M.Os.1 to 3.
7. The trial Court examined the accused on the in-discriminating aspects appearing in the prosecution evidence. He denied his complicity in this case. He did not let in any defence evidence.
8. Upon considering the evidence, the trial Court recorded a conviction under Section 306 IPC., sentenced him as already stated.
9. According to the learned counsel for the appellant, the trial Court had disbelieved the prosecution case of murder under Section 302 IPC. It held that the charge under Section 302 IPC is n
