K.Packiyaraj v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Monday, the Twentieth day of June Two Thousand Sixteen PRESENT The Hon`ble Dr.Justice P.DEVADASS CRL MP(MD) No.3005 of 2016 IN CRL A(MD) No.115 of 2016 K.PACKIYARAJ ... PETITIONER/APPELLANT Vs STATE REP.BY THE INSPECTOR OF POLICE SIVAGANGAI TALUK POLICE STATION, SIVAGANGAI.

CR. NO.128/2006 ... RESPONDENT/COMPLAINANT Petition praying that in the circumstances stated therein and in the petition filed therewith the High Court will be pleased to suspend the sentence imposed by the Learned Session Judge, Mahalir Fast Track Court, Sivagangai in S.C.No.41 of 2009 dated 21.12.2015 and let him on bail pending disposal of the Criminal Appeal.

Order : This petition coming on for orders upon perusing the petition filed in support thereof and upon hearing the arguments of M/S.R.SEVUGARAJA, Advocate for the petitioner and of MR.P.KANDASAMY, Govt.Advocate(Crl.Side) on behalf of the Respondent, the court made the following order:- The sole accused in S.C.No.41 of 2009, on the file of the learned Sessions Judge, Fast Track Mahila Court, Sivagangai, while challenging his conviction and sentence, seeks appeal bail under Section 389 Cr.P.C.

2. In the said Court, he was found guilty under Section 305 I.P.C., sentenced to 10 years R.I., and fined Rs.5,000/-, i/d 6 months R.I.

3. Fine amount was paid. The petitioner is lodged in Central Prison, Trichy.

4. The deceased is the daughter of P.Ws.1 and 2. The petitioner / accused, who is the brother of P.W.2, is alleged to have misbehaved with his brother's daughter, who is below 18 years. Unable to bear the shame, she is stated to have committed suicide.

5. Relying on the evidence of P.Ws.1 and 2 / parents, P.W.3 / another brother of P.W.2 and P.W.5 / uncle of the deceased, the Trial Court convicted and sentenced the petitioner as stated above.

6. The learned counsel for the petitioner would contend that there is no incriminating evidence to sustain the charge under Section 305 I.P.C. None of the prosecution witnesses have spoken that they have witnessed the accused having misbehaved with the deceased. P.Ws.3 and 5 have also stated that they came to the scene of occurrence only after the alleged event.

7. The learned counsel for the petitioner further contended that the evidence of P.Ws.1 and 2 would show that P.W.9 Women S.I. has recorded the statement from the deceased while she was alive. The defence version is that it is a document contains information, which will show that the petitioner has not committed any crime. When such is the situation, the said document has not been produced by the prosecution. It was burked by the prosecution.

8. The learned counsel for the petitioner further contended that even as per the prosecution version, the charge is that since P.W.3 has not taken any immediate action on the complaint made by the deceased as against the petitioner, she had committed suicide. That will not come under Section 305 I.P.C.

9. The learned counsel for the petitioner would also contend that the prosecution has failed to establish the charge under Section 305 I.P.C. There is prima facie case in favour of the petitioner.

10. Prosecution filed counter.

11. According to the learned Government Advocate (Criminal Side), the deceased and the petitioner are in the nature of father and daughter, because he is own brother of the deceased's father. He misbehaved with the deceased, who was below 18 years. Ample evidence has been let to sustain the charges. In such circumstances, the learned Trial Judge has rightly convicted and appropriately sentenced the petitioner. There is no prima facie case in his favour.

12. I have anxiously considered the rival submissions, perused the impugned Judgment and the relevant materials on record.

13. The ingredients for an offence under Sections 305 and 306 I.P.C., are analogous with shuttle difference. Section 305 I.P.C., will cover where victim is below 18 years and mentally de-ranked or a drunken person etc. Thus, for the general law of abetment in Section 107, Section 305 and 306 I.P.C., are its species. But, the crux of both the sections is that there must be 'abetment'. It means that there must be a positive on the part of the accused forcing the victim to commit suicide. It may be by letters or it may be by words.

14. Now, in this case, the accused is alleged to have committed a shameful act or misbehaved with the deceased.

15. None of the prosecution witnesses have witnessed the occurrence. Ofcourse, it would be very rare for eye-witness in this type of cases. However, it has to be established by acceptable evidence beyond all reasonable doubts.

16. It has been argued by the defence side that admittedly from the cross-examination of P.Ws.1 and 2, it transpires that when the S.I. visited the victim, while alive, she gave statement and only thereafter P.W.1 / mother of the deceased gave complaint. In such circumstances, the statement of the deceased would become a dying declaration. It will tell reasons for her death. It will contain the cause of her death. In this case, this is very important document. The defence alleged that

since P.W.2 is a drunkard, the deceased unable to bear it has committed suicide. That is what stated in the victim statement. However, the said document has not been produced by the prosecution. That document has been wantonly suppressed by the prosecution.

17. It is also contended that in this case the charge against the accused will not lead to an offence under Section 305 I.P.C., because the deceased, having disappointed with P.W.3 having not taken any action as against the accused, she has committed suicide. This will not fall under Section 305 I.P.C.

18. Considering all the above aspects, I am of the view that certain eminently arguable points are involved in this criminal appeal. They are required to be examined in detail in the main criminal appeal. Further, it will take some time for the disposal of the criminal appeal. I see prima facie case in favour of the petitioner. I am inclined to grant appeal bail to the petitioner.

19. Ordered as under:

(i) Appeal bail granted.

(ii) Sentence of imprisonment alone is suspended. (iii)There shall be two sureties, they and the petitioner shall execute a bond for Rs.20,000/- (Rupees twenty thousand only) each to the satisfaction of the learned Judicial Magistrate No.II, Sivagangai. (iv) The petitioner shall stay in Thondi, Ramanathapuram District and report before the S.I. of Police, Thondi Police Station, daily at 10.30 a.m., until further orders.

sd/- 20/06/2016 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023.

TO 1.THE SESSIONS JUDGE,FAST TRACK MAHILA COURT,SIVAGANGAI. 2.THE SUPERINTENDENT,CENTRAL PRISON, TRICHY.

3.THE JUDICIAL MAGISTRATE NO.II, SIVAGANGAI.

4.DO-THRO'THE CHIEF JUDIICAL MAGISTRATE,SIVAGANGAI. 5.THE GOVERNMENT ADVOCATE (CRIMINAL SIDE), MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.

6.THE INSPECTOR OF POLICE,SIVAGANGAI TALUK POLICE STATION,SIVAGANGAI. 7.THE SUB-INSPECTOR OF POLICE, THONDI POLICE STATION,THONDI, RAMANATHAPURAM DISTRICT. +1. C.C. to M/S R.SEVUGARAJA Advocate SR.No.31375 ORDER IN CRL MP(MD) No.3005 of 2016 IN CRL A(MD) No.115 of 2016 Date :20/06/2016 PA/AAL-MPA/SAR III/21.06.2016/3P/9C(IT)