BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.09.2014 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Criminal Appeal(MD) No.234 of 2007 1.Kaliyammal 2.Mariyammal ... Appellants Vs. State represented by, The Inspector of Police, Theni Police Station, in Crime No.278 of 2004, Theni District. ... Respondent Appeal filed under Section 374(2) Cr.P.C., to call for records and set aside the order of conviction and sentence passed in S.C.No.34 of 2006 dated 26.04.2007 on the file of the Principal District and Sessions Judge, Theni and allow this appeal and acquit the appellants accused from the charge levelled against them. !For Appellant : Mr.A.K.Azagarsami ^For Respondent : Mr.T.Mohan, Additional Public Prosecutor. :JUDGMENT
The accused Nos.1 and 2 in S.C.No.34 of 2006 decided by the Principal Sessions Judge, Theni were prosecuted in the said case for offences punishable under Sections 323 IPC and 306 IPC. At the conclusion of trial, the learned Principal Sessions Judge held them guilty of both the offences, convicted them for both the offences and sentenced them to undergo four years rigorous imprisonment and to pay a fine of Rs.1,000/- with a default sentence of six months simple imprisonment for the offence punishable under Section 306 IPC and imposed a fine of Rs.500/- with a default of sentence of three months simple imprisonment, without any substantive punishment for the offence punishable under Section 323 IPC.
2.The judgment of the learned Principal District and Sessions Judge, Theni dated 26.04.2007 is challenged by the appellants/accused in this criminal appeal both in respect of conviction and sentence.
3.The case of the prosecution, in brief, is as follows:-
The second appellant/2nd accused-Mariyammal is the daughter of the 1st appellant/first accused-Kaliyammal. They are residing in Goodshed Street, Theni. There was a previous enmity between the appellants/accused on the one hand and the deceased on the other hand. On 15.07.2004 at about 07.00 a.m, the deceased Renganayagi was sweeping the vacant space on the backyard of her house. At that point of time, the appellants/accused picked up quarrel with her and abused her with filthy and unparliamentary words asking her how she could venture to claim the thorns put up by the appellants/accused to be that of the deceased. The appellants/accused also attempted to beat her with brooms, besides addressing the deceased in public that Kanchana- younger sister of the deceased was doing prostitution and the deceased was helping her in such prostitution. The appellants/accused also threw small branches of thorny pushes carrying the thorns and also bricks at the deceased. The same drove the deceased to commit suicide by self immolation, setting fire on herself after dousing her with kerosene. The fire was put out by P.W.1-Dhanam (the mother of the deceased) and P.W.2-Kanchana (the younger sister of the deceased). Though they made an attempt to save her life by getting her admitted in the hospital, she succumbed to the burns and thus the appellants/accused had committed offences punishable under Sections 323 IPC and 306 IPC. Based on the statement of the deceased given by her while she was given treatment in the hospital marked as Ex.P.1, a case was registered on the file of the Theni Police Station in Crime No.278 of 2004. The case was investigated by the police and a charge sheet was filed against the appellants/accused alleging commission of the above said offences by the appellants/accused. The case was initially committed to the Sessions Division and on the question of jurisdiction had been made over to the Mahila Court, Madurai in S.C.No.605 of 2005. After framing of charges again on the question of jurisdiction the case was transferred to the file of the Principal District and Sessions Judge, Theni and renumbered as S.C.No.34 of 2006.When charges were framed and the accused were asked to make their plea, they denied having committed the offences, pleaded not guilty and wanted the case to be tried.
4. In the trial, 13 witnesses were examined as P.Ws.1 to 13 and 20 documents were marked as Exs.P.1 to P20 besides producing M.Os.1 to 3, on the side of the prosecution in order to prove the charges against the appellants/accused. After giving an opportunity to the appellants/accused to explain the incriminating parts of the evidence adduced on the side of the prosecution and recording the fact that the appellants/accused did not have any oral or documentary evidence, the learned trial Judge considered the evidence on record in the light of the arguments advanced on both sides and pronounced a judgment holding both the appellants/accused guilty of the offences with which they stood charged, convicted them for the said offences and sentenced them as indicated supra. As against the same, the present appeal has been filed.
5.The point that arises for consideration in this appeal is as follows:-
?Whether the judgment of the trial Court convicting and sentencing the appellants/accused for the offences under 323 IPC and 306 IPC suffers from any defect or infirmity requiring interference by this Court in respect of conviction or in respect of punishment??
6.The arguments advanced by Mr.A.K.Azagarsami, learned counsel for the appellants/accused and by Mr.T.Mohan, learned Additional Public Prosecutor for the respondent police were heard and the materials available on record have been taken into consideration by this Court.
7.It is the contention of the learned counsel for the appellants/accused that pursuant to an alleged petty quarrel the appellants/accused were prosecuted and convicted erroneously for offences under Sections 323 and 306 IPC without properly appreciating the scope of the penal provisions under which they were alleged to have committed the offences. It is the further contention of the learned counsel for the appellants/accused that various discrepancies and material contradictions found in the evidence of the prosecution, which would make the prosecution theory improbable and create a reasonable doubt regarding the truth of the prosecution theory, were not adverted to by the Court below and the same resulted in an erroneous finding holding the appellant/accused to be guilty of the offences under Sections 323 and 306 IPC. It is his further contention that though charges were framed for offences under Sections 294(b), 323 and 306 IPC, the learned trial Judge did not even verify the charges and simply proceeded on the erroneous assumption that the charges were framed under Sections 323 and 306 IPC and also completely forgetting the fact that there were three charges framed and the first charge was one for an offence punishable under Section 294(b) IPC. Learned counsel for the appellants/accused, pointing out the said fact argued that the said aspect would show the non application of mind to the facts of the case and the charges framed in the case and also a predetermination on the part of the learned trial Judge to convict the appellants/accused for offence punishable under Sections 323 and 306 IPC and impose the punishment.
8.On the other hand, learned Additional Public Prosecutor would contend that the prosecution, by reliable evidence, did prove that due to the abusive language used by the appellants/accused tarnishing the character and reputation of the deceased and her sister, the deceased was driven to commit suicide and that therefore, the learned trial Judge did not commit any error in coming to the conclusion that the appellants/accused were guilty of the offence punishable under Section 306 IPC. It is his further contention that there were also evidences in respect of the second charge namely a charge for an offence under Section 323 IPC and the learned trial Judge rightly convicted the appellants/accused for the said offence also. The learned Additional Public Prosecutor further contended that there was no omission to consider the first charge namely, the charge for an offence under Section 294(b) IPC, as sought to be projected by the learned for the appellants/accused and on the other hand, since the charge for a graver offence, namely, Charge No.3 was considered and the appellants/accused were committed for such graver offence, the learned trial Judge thought it fit not to convict the appellants/accused for the offence under Section 294(b) IPC and that therefore, there was no flaw in the judgment of the trial Court convicting the appellants/accused for offences under Sections 323 and 306 IPC and sentencing them as per the judgment of the trial Court.
9.So far as the contention of the learned counsel for the appellants/accused that there was omission on the part of the trial Court to consider the first charge namely, the charge for an offence punishable under Section 294(b) IPC is concerned, it is quite obvious that the learned trial Judge referred to the framing of three charges namely, charges for offences punishable under Sections 294(b), 323 and 306 IPC in his judgment. The same is found in paragraph 5 of the judgment of the Court below. However, in paragraph 16 of the judgment, the issue involved in the case was noted as to whether the offences punishable under Sections 323 and 306 IPC allegedly committed by the appellants/accused had been proved beyond reasonable doubt. At the outset the same may appear that there was absence of consideration of the charge framed for an offence under Section 294 (b) IPC by the learned trial Judge. However, the facts constituting the offence under Section 294(b) were cited as the ground on which the appellants/accused were charged for the offence under Section 306 IPC and thus the offence under Section 294(b) is covered by the graver offence, namely for an offence under Section 306 IPC. Hence, the omission to mention the charge under Section 294(b) cannot be found fault with. It is true that there is absence of specific reference in the judgment to the fact that the charge under Section 294(b) is incorporated in the charge for the larger offence, namely the charge for the offence punishable under Section 306 IPC. But the same can be taken as a simple omission or a minor discrepancy which will not affect the case of prosecution .
10.The case of the prosecution is that on 15.07.2004 at about 07.00 a.m, the appellants/accused, who were the neighbours of the deceased, picked up quarrel with the deceased when she was cleaning the vacant space on the backyard of her house and tarnished her character and reputation by calling her sister namely, P.W.2- a prostitute and the deceased, a person helping her in such prostitution. Of course, Ex.P1, the statement recorded by the police when the deceased had been admitted in the hospital with burns, refers to such abusing language tarnishing the character and reputation and P.W.2 and the deceased. Ex.P.12 is the dying declaration recorded by the Judicial Magistrate, Periyakulam. In the said statement also the deceased had stated that she was called as a prostitute by the appellants/accused and she was beaten with broom by the second appellant-Mariammal. Ex.P.8 is the certificate of the Medical Officer to the effect that she was conscious through out the period of dying declaration and that the dying declaration was recorded in his presence. Ex.P.9 is the preliminary questions and answers recorded by the Judicial Magistrate to find out whether the deceased was coherent in her answers and was in a fit state of mind to give her dying declaration. A comparison of Exs.P.1 and P.12 as rightly pointed out by the learned counsel for the appellants/accused will show the improvement made in EX.P.12 from Ex.P.1. Ex.P.1 was recorded on 15.07.2014 at 11.00 a.m and Exs.P.9 and 12 came to be recorded subsequently, at 6.00 p.m on the same day.
11. In Ex.P.1-complaint statement, the deceased did not state that she was beaten with broom. On the other hand she had stated that the appellants/accused made an attempt to beat her with broom. However, in the dying declaration, which came to be recorded after a lapse of 7 years from the time of recording of Ex.P.1, an improvement was made to the effect that A2-Mariammal but beat her with broom. In this regard, P.W.1, who is none other than the mother of the deceased, did not say anything in her chief examination that either there was an attempt on the part of the appellants/accused to beat the deceased with broom or the deceased was beaten by either the first appellant or the second appellant with broom. P.W.2- Kanchana is the younger sister of the deceased. She also did not state anything in her chief examination that the deceased was either beaten or attempt to beat was made either by the first appellant or by the second appellant. P.W.3-Murugesan is the husband of the deceased. He was not an eye witness and only after his wife was admitted in the hospital he paid a visit to her. Though he speaks about the information furnished to him by P.W.s 1and 2, he does not say that he had received any information from them that the deceased was either beaten or an attempt was made by either of accused to beat her with a broom. Ex.P.5-Accident Register contains the information furnished to the Medical Officer at the time of admission of the deceased to the effect that the Medical Officer was informed that the deceased poured kerosene on herself and set her on fire due to a quarrel with the neighbour. The improvement made from Exs.P.1 to P.12 as if she was beaten with a broom is nothing but an exaggeration and embellishment. Even that exaggerated version was not supported by any of the witnesses examined on the side of the prosecution. Therefore, it can be held, without any hesitation, that the deceased was not beaten by any of the appellants/accused with broom.
12.We have already seen that there is a contradiction between Exs.P.1 and P.12 regarding the use of broom for beating the deceased and that no broom was recovered by the police during investigation. In Ex.P.1 the deceased had stated that the appellants/accused attempted to beat her with broom, but she was not specific as to whether both of them were holding broom in their hands or only one of them was having it, and if so who among the appellants/accused was holding the broom and attempted to beat her with it. However, in the dying declaration marked as Ex.P.12 she has stated that the second appellant Mariammal beat her with broom. Apart from there being such an embellishment and improvement, none of the witnesses examined on the side of the prosecution spoke about the attempt made either by A-1 or A-2 to beat the deceased with broom. Therefore, this Court has to arrive at a conclusion that the story of the prosecution regarding the alleged attempt made by the appellants/accused to beat her with broom has got to be rejected as improbable and not proved by the prosecution.
13.The occurrence is said to have taken place at 7.00 am on 15.07.2004. Ex.P.1 contains averments to the effect that due to the quarrel over the moving of the thorns by the deceased Renganayagi, the appellants/accused abused her using defamatory language calling P.W.2 a prostitute and the deceased a person helping P.W.2 in her prostitution. Of course, the said averment found in Ex.P.1 was not repeated with such elaboration in Ex.P.12 dying declaration. On the other hand in Ex.P.12, she had simply stated that the appellants scolded her using abusive language (mrp';fkhf jpl;odhh;fs;). We have to consider whether the use of such words, outraging the modesty of a woman, was of such a nature that it was likely to drive her to commit suicide. While considering the effect of such abusive language thrown at a person, we have to judge it taking the reaction of the normal person. The effect of the use of such abusive language on the behaviour of a normal person alone shall be taken into account. Otherwise, the prosecution should prove that the person, against whom such abusive language was used, was labouring under a decease or that such person was of such mental make up and the accused persons knew that by their words they would or they were likely to drive such person to commit suicide. In the absence of any such special knowledge, this Court is of the considered view that scolding a person with such abusive language branding her as prostitute will not be sufficient to convict the appellants/accused for having abetted suicide. If a person did commit suicide on trivial matters, the person who commit such trivial acts cannot be said to have abetted suicide.
14.The above said discussions will make it clear that the prosecution has failed to prove its case that either of the appellants/accused used force. Ex.P.1 is the earliest statement of the deceased recorded by the police and it formed the basis of the FIR. Apart from alleging that the appellants herein used abusive language against the deceased, further allegation has also been made to the effect that the appellants threw thorns and bricks on the deceased and her mother, namely P.W.1 and that in the said incident, P.W.1 suffered injuries on both hands. The dying declaration recorded by the Judicial Magistrate marked as Ex.P.12 does not support the said averment found in Ex.P.1 that they were attacked by the appellants/accused by throwing thorns and bricks at them. In Ex.P.1 it was stated that the appellants/accused attempted to beat the deceased with broom whereas in the dying declaration she had stated that she was beaten by the second appellant with a broom. In Ex.P.1, the deceased simply stated that she was scolded by the appellants/accused using abusive language. There is no averment that they asked her why should she be alive. However, in the dying declaration, there is an improvement by introducing an allegation that the appellants/accused asked her whether she should live (ePbay;yhk; capnuhl ,Uf;fZkh vd;W brhd;dhh;fs;).
15.We have also seen that P.W.1 did not support the prosecution case that the appellants/accused handled any broom and attempted to beat the deceased with it. From the evidence of P.W.1, it is obvious that the appellants/accused were living there for more than eight years prior to the occurrence, but P.W.1 and the deceased came there only just 20 days prior to the occurrence. Even though P.W.1 is said to have sustained injuries on her hands, there is no document to prove that she sustained such injuries or she got treatment for such injuries. Except the interested testimonies of P.Ws.1 and 2, who are none other than the mother and sister of the deceased and also P.W.3-the husband of the deceased, there is no evidence to show that the appellants/accused, by their words, instigated the deceased to commit suicide. Even the evidence of P.W.3 is not direct and his evidence is only hearsay.
16.If the cumulative effect of the entire evidence adduced on the side of the prosecution is taken into account, one can arrive at a conclusion that the prosecution has not proved its case of abetment of suicide beyond reasonable doubt. The evidence show that the appellants were residing at Goodshed Street, Theni for more than eight years, but the deceased, her mother and sister came there only 20 days prior to the date of occurrence; that there was a dispute over the moving of the thorns put up by the appellants/accused as a fence to prevent encroachment and that the same triggered a quarrel, pursuant to which the deceased committed suicide by self- immolation. The charge under Section 323 IPC has not been established by reliable and cogent evidence since there is no evidence to prove that the deceased sustained any injury in the incident and though P.W.1 is said to have sustained injuries in the incident, there is no medical certificate to prove the same. There is also no evidence to prove that she did take treatment for the same. Hence, it could be safely concluded that the prosecution has not proved the charge against the appellants/accused for the offence under section 323 IPC. The evidence of P.Ws.1 and 2 regarding the alleged use of broom either in an attempt to beat the deceased or to beat the deceased are not reliable as they are interested witnesses, besides there being a vital contradiction between Ex.P.1 and Ex.P.12 dying declaration. In this regard, there is clear concoction and embellishment. With the available evidence, it cannot be said that the prosecution was successful in proving its case that the appellants/accused had beaten the deceased with broom or that the appellants/accused attempted to beat her with broom. In any event, as indicated supra, the charge against the appellants/accused for an offence under Section 323 IPC is to be held not proved beyond reasonable doubt. The learned trial Judge, without properly marshalling the evidence, arrived at an erroneous conclusion that the charge under Section 323 IPC was proved. Hence, the conviction of the appellants/accused for the offence under Section 323 IPC has got to be set aside.
17.So far as the other offence in respect of which Charge No.1 had been framed, is concerned, there is evidence that the appellants/accused used abusive language against the deceased calling her sister a prostitute and calling the deceased a person helping her sister in her prostitution. The same shall amount to an offence punishable under Section 294 (b) IPC. It may also amount to an offence punishable under Section 506 IPC. But no charge was framed against the appellants/accused for an offence under Section 509 IPC and the charge sheet simply refers to Section 294 (b) IPC as the offence committed by the appellants/accused by their use of abusive language against the deceased. The alleged language used in the heat of passion in a sudden quarrel between the appellants/accused over the moving of thorns by the deceased cannot be said to be uttered with the intention of outraging or insulting the modesty of the deceased or his sister. With the available evidence, the only possibility is to hold that the prosecution has succeeded in proving the charge for an offence punishable under Section 294 (b) IPC beyond reasonable doubt. However, the words used against the deceased, according to the considered view of this Court, will not amount to abetment of suicide, simply because the deceased committed suicide by self immolation. Therefore, this Court comes to the conclusion that the conviction of the appellants/accused by the trial Court for the offence of abetment of suicide punishable under Section 306 IPC is bad and the same cannot be sustained in law. However, the lesser offence, namely the offence of using obscene words in public punishable under Section 294 (b) IPC alone stands proved beyond reasonable doubt. As the Court below was of the view that the act amounting an offence under Section 294(b) IPC was the act of inducement of suicide, it omitted to record a conviction for the said offence and impose a separate punishment for the same. As this Court has come to the conclusion that the charge against the appellants/accused for the offence punishable under Section 306 IPC has not been proved beyond reasonable doubt and they are entitled to be acquitted of the said offence, but at the same time, the prosecution has proved the charge for an offence under Section 294 (b) IPC, the judgment of the trial Court deserves to be modified by setting aside the conviction of the appellants/accused for the offence under Section 306 IPC and convicting them for an offence under Section 294 (b) IPC alone.
18. The offence under Section 294 (b) IPC is punishable with imprisonment of either description for a term which may extend to three months or with fine or with both. Considering the facts and circumstances of the case, this Court is of the view that imposing simple imprisonment for 15 days and a fine of Rs.500/- on each one of the appellants/accused with a default sentence of simple imprisonment for one week for the offence under Section 294(b) IPC shall be sufficient and shall meet the ends of justice.
19.In the result, the Criminal Appeal is allowed in part setting aside the conviction of the appellants/accused for the offence under Sections 323 and 306 IPC and convicting them for an offence punishable under Section 294
(b) IPC alone and imposing a sentence of simple imprisonment for 15 days and a fine of Rs.500/- on each one of the appellants/accused with a default sentence of simple imprisonment for one week. The imprisonment, if any, already undergone shall be set off under Section 248 Cr.P.C. After such set off, if any portion of the sentence remains unexpired, the appellants/accused shall surrender before the trial Court within two weeks, whereupon they shall be committed to jail for undergoing the unexpired portion of the sentence. The excess fine amount collected from the appellants/accused shall be refunded.
To The Principal District and Sessions Judge, Theni