(Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., to set aside the judgment dated 19.01.2011 in S.C.No.7 of 2008 on the file of the Mahila Court, Perambalur.)
1. The appellant/accused being aggrieved of the conviction passed on 19.01.2011 in S.C.No.7 of 2008, on the file of the Mahila Court, Perambalur for the offence under Section 306 IPC and sentenced him to undergo rigorous imprisonment for five years and a fine of Rs.10,000/- in default in payment of fine to undergo six months simple imprisonment, has preferred this appeal.
2. The case of the prosecution in brief is as follows :- P.W.1, the grand-father of the deceased lodged a complaint on 12.06.2006, alleging that his grand-daughter, the victim was under his custody and she completed her eighth standard school studies. While so, the deceased fell in love with the accused and accused used to present the poems and photos. After coming to understand about the love affair between the accused and the deceased, on 11.06.2006 at about 9.30 p.m., there was panchayath held with the accused and others. During the panchayath, the accused and his parents refused to marry the deceased and further the accused stated that he do not bother even though the deceased died. After panc
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hayath, at about 1.00 a.m., the deceased went to the cattle shed of the accused and hanged herself and died. In the said panchayat Poonusamy, Selvaraj, Thangamuthu, Mannar, Kasi and one Selvakumar were also present and they had knowledge about the incident.
3. Upon receipt of the complaint the respondent registered a case in Crime No.50 of 2006 for the offence under Section 306 of IPC under Ex.P.9 against the appellant and two others. The respondent proceeded to the place of occurrence and removed the dead body and sent the same for conducting postmortem. After completion of the investigation, a charge sheet has been laid against all the accused for the offence under Section 306 IPC. The trial Court framed the charges for the offence under Section 306 IPC and the accused pleaded not guilty and claimed for trial.
4. The prosecution examined 12 witnesses P.W.1 to P.W.12 and marked Ex.P.1 to Ex.P.13 and produced material objections M.O.1 to M.O.9. The statement of the accused under Section 313 Cr.P.C. was recorded and accused did not choose to lead any evidence. The learned Principal District and Sessions Judge i/c Mahila Court, Perambalur, acquitted the second and third accused, found guilty the appellant/first accused for the offence under Section 306 IPC and sentenced him as stated above. As against the conviction and sentence, the present appeal.
5. The learned counsel appearing for the appellant submitted that the grand-father of the victim only lodged the complaint when the father and mother of the deceased are very much alive. P.Ws. 1, 4, 5 and 6 are close relatives to the deceased and their evidence are stereo type and tutored one. No such panchayath was held on 11.06.2006 and no one was examined in respect of the said panchayath. There is no evidence of panchayath and no one has spoken about the panchayath and its date and time, except P.W.1.
6. Further, the learned counsel appearing for the appellant contended that the accused 2 and 3 were also standing in the same footing as like the appellant/first accused and they were acquitted, and hence the appellant is also liable to be acquitted. Further P.Ws.2,3,4,6 and 7 turned hostile and P.W.5, the father of the deceased is a hear-say witness and as such his evidence cannot be considered, even though it supported the prosecution case. P.W.8, the mother of the deceased deposed that she attended the panchayath and corroborated the evidence of P.W.1. But, it is seen from the evidence of P.W.5, the father of the deceased, he did not whispered about the presence of P.W.8 and categorically admitted that he was not present on the date of panchayat and only after the death of the deceased, he reached the place of occurrence.
7. The learned counsel appearing for the appellant further contended that the death of the deceased is unnatural and as such the respondent ought to have referred the case to the Revenue Divisional Officer to conduct enquiry and the failure of referring for the Revenue Divisional Officer's enquiry is fatal to the case of the prosecution.
8. The learned counsel appearing for the appellant further submitted that P.W.12, the Investigating Officer deposed as against the prosecution case and he categorically admitted the fact that he did not mentioned the place of panchayath and P.W.1 did not whisper about the alleged words uttered by the first accused. Therefore, the prosecution failed to prove the case beyond any doubt and without considering all the above facts, the learned Judge wrongly convicted the accused. Therefore, he prayed to allow this appeal.
9. Per contra, the learned Government Advocate (Crl. Side) contended that it is on account of the fact that the first accused uttered words to the deceased in the panchayath, she was forced to commit suicide by hanging herself. It is clear from the evidence of P.W.1 that the appellant/first accused abetted the deceased to commit suicide. To that effect, the evidence of P.Ws.5 and 8, supported the case of the prosecution, wherein the first accused refused to marry the deceased and the accused 2 and 3, who are the parents of the first accused were also supported him. Therefore, he submitted that the ingredients of Section 306 IPC have been proved and it is on account of the said fact the deceased having humiliation herself committed suicide and there is a justification in the conviction and sentence passed by the trial Court and prayed for dismissal of the appeal.
10. Heard the rival submissions made by Mr.N.A.Kareem, learned counsel appearing for the appellant and Mr.R.Ravichandran, learned Government Advocate(Crl. Side) appearing for the State and perused the materials placed before this Court.
11. Whether, the prosecution has proved that the deceased committed suicide due to the abetment of the accused as he uttered filthy words against the deceased? If so, the conviction and sentence are liable to be interfered with?
12. It is seen from the evidence of P.W.1 that the deceased was staying along with him and fell in love with the first accused/appellant. When the love affair came to the light, the first accused came to the village from Chennai, they conducted panchayath on 11.06.2006. In the said panchayath, the first accused and his parents refused to marry the deceased and also the first accused uttered filthy words against the deceased. Immediately thereafter, the deceased was left from the panchayath and committed suicide in the cattle shed belongs to the first accused. Even though there was so many persons attended panchayath, no one was examined to corroborate the evidence of P.W.1. In fact the date and time of the panchayat was not at all stated in the statement of P.W.1. 13. The prosecution marked Ex.P.2, the letter written by the first accused. It is seen from the Ex.P.2, no address was mentioned and to whom it was sent and no particulars are there. Further to prove that it was written by the first accused, no hand writing expert opinion obtained by the prosecution compared with the hand writing of the first accused. Even assuming that the said letter had been written by the first accused, it is nothing to do with the alleged love affair between the deceased and first accused. It reads as follows :-
As such, Ex.P.2 cannot be construed as love letter and the prosecution failed to prove the love affair between the deceased and the first appellant.
14. It is also seen from the records, except P.W.1, other witnesses did not support the case of the prosecution. Even though, P.Ws.5 and 8 the parents of the deceased supported the case of the prosecution, P.W.5 is only hear-say witness and P.W.8 has completely contradicted one. P.W.1 categorically deposed that when the panchayath was held only Poonusamy, Selvaraj, Thangamuthu, Mannar, Kasi and one Selvakumar were present and it is also corroborated by P.W.5. It is also seen from the evidence of P.W.8, she attended the panchayath and in the panchayath, the first accused refused to marry her daughter. Therefore, the evidence of P.W.8 is not believable one and not supporting the case of the prosecution.
15. It is also seen from the evidence of Investigating Officer, P.W.11, he did not supported the case of the prosecution. The portion of his cross-examination is read as follows :-
It is true that in the alleged panchayath, P.Ws.1, 5 and 8 did not participate and as such their evidence cannot be looked into.
16. Now, it has to be examined on account of the uttered filthy words towards the deceased that has made her to commit suicide. Section 306 IPC reads as follows :-
"306. Abetment of suicide If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
To pass the conviction for the offence under Section 306 IPC, the prosecution has to make out the commission of suicide by a person and the accused has abetted the commission of suicide there of. If the acts of abetment proved, the accused is liable to be convicted under Section 306. On going through the entire evidence of the prosecution witnesses, there is no evidence to believe that the act of the appellant to the deceased to drive her to commit suicide. In the absence of proving the ingredients of Section 306 IPC the question of passing the conviction would not arise.
17. In the case of "Sathish Vs. State of Maharastra reported in 1997 Crl LJ 935" it observed as follows :-
"What was really required to be found out was as to whether the accused intended by not marrying that she would commit suicide or whether he knew that she was likely to commit suicide. The learned Sessions Judge has precisely avoided to fix up this intention or knowledge on the part of the accused so as to hold him guilty of the abetment".
18. In the judgment reported in "2010 AR SC 512 - Amalendu Pal @ Jhantu Vs. State of West Bengal" the Hon'ble Supreme Court of India, after considering the various judgments observed in paragraph 15 held as follows :-
"Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
19. In another case of "Gangula Mohan Reddy vs State Of Andra Pradesh reported in (2010) 1 SCC 750" the Hon'ble Supreme Court of India held that :-
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide there can be no conviction. It was further held that to attract 306 of IPC, there has to be clear mens rea to commit the offence"
20. On the careful scrutiny of the testimony of the prosecution witnesses, this Court comes to the conclusion that the learned Principal District and Session Judge i/c Mahila Court, Perambalur has erred in convicting the accused for the offence under Section 306 IPC, though the incriminating evidences are not proved. Therefore, the conviction and sentence of the accused for the offence under Section 306 IPC is liable to be set aside.
21. In the result, this criminal appeal is allowed and the order dated 19.01.2011 passed in S.C.No.7 of 2008 on the file of the learned Principal District and Sessions Judge i/c Mahila Court, Perambalur is hereby set aside and the appellant/accused acquitted of all charges. Fine amount, if any, paid shall be refunded to the appellant forthwith. Bail bonds, if any, executed shall stand cancelled.