Holding

The conviction cannot stand without the prosecution explaining the substantial delays, and the matter must be reconsidered in view of Section 401(3) CrPC.

Summary

The accused Kannika was convicted by the trial court under IPC sections 306 (abetting suicide) and 294(8) (obscene acts). The appellate court acquitted him, but the Madras High Court, on revision, restored the conviction. The Supreme Court was approached to examine whether the High Court erred by not considering the substantial delay in lodging the FIR (eight days after the incident) and the further 40‑day delay in dispatching the FIR to the court, as well as the applicability of Section 401(3) of the Criminal Procedure Code. The Court held that the prosecution must explain such delays and that failure to do so could affect the conviction; it also noted that the scope of Section 401(3) CrPC, which allows dismissal of prosecution for want of evidence, had not been examined. Consequently, the Supreme Court set aside the High Court’s order and remitted the matter to the High Court to consider the effect of the delays and the provisions of Section 401(3). The appeal was partly allowed.

Issues considered

The effect of the delay in lodging the FIR and its dispatch on the validity of the conviction under IPC sections 306 and 294(8).
Whether Section 401(3) of the Criminal Procedure Code should be invoked to dismiss the prosecution for want of evidence.
Whether the High Court erred in not considering the above factors while restoring the conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 401(3)
Indian Penal Code, 1860s. 294(8), s. 306

Subjects

Abetment of suicideObscene actsFIR delaySection 401 CrPCCriminal convictionSupreme Court appealEvidence

Judgment

(2009) 2 S.C.R. 394

,,
A KANN IKA
~
v.
MOOKAIAH & ANR.
Criminal Appeal No. 286 of 2009
FEBRUARY 12, 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860 : \

c ss. 306 and 294(8) - Conviction by trial court- Acquittal
by appellate court- Conviction restored by High Court, in
revision- On appeal held: Order of the High Court, was passed
without taking into consideration delay in lodging FIR and delay
in dispatch thereof to the concerned court and also scope and
ambit of s. 401 (3) Cr.PC. - Matter remitted to High Court.
D
Appellant-accused was convicted by trial court u/ss. +.
306 and 2949 (8) IPC. Appellate court directed his
acquittal. In revision, High Court restored the conviction.
In appeal to this Court, appellant contended that High
E Court order was passed without taking into consideration
the delay in lodging FIR and further delay in dispatch of
the same to the concerned court and also the scope and
ambit of s. 401 (3) Cr. P.C .. ,...
·-

F Partly allowing the appeal and remitting the matter
to High Court, the Court.
HELD: The prosecution was required to explain the
delay which is quite large. It is to be noted that the dying
declaration was purportedly recorded by the police
G constable and the Magistrate on 6.5.1999. There is no
explanation as to why the FIR was lodged after a week. )'-
:t
The same was dispatched after 40 days. This position has
not been disputed by the respondents. Above being the

H 394
KANN IKA V. MOOKAIAH & ANR. 395

position, the matter is remitted to High Court to consider A
the effect of the delay in lodging FIR and the delay in
dispatching of the same to the concerned court. The
scope and ambit of Section 401 (3) Cr.P.C. shall also be
kept in view, while dealing with the matter. [Para-7-8] [ 399-
E, ~ G] B
CRIMINALAPPELLATE JURISDICTION: CiriminalAppeal
No. 286 of 2009
From the final Judgement and Order dated 18.7.2007 of
the High Court of Madras in Criminal R.C. No. 499 of 2005 c
V. Kanagaraj, M.A. Chinnasamy, with him for the Appellant.
R. Neduraman, for the Respondent.
The Judgement of the Court was delivered by
..... D
DR. ARIJIT PASAYAT, J.
1 . Leave granted.
2. Challenge in this appeal was the judgment of a learned
Single Judge of the Madras High Court allowing the revision
E
petition filed by the informant- the respondent No.1. Learned
Assistant Sessions Judge Ambasamudram, Tirunelveli District
,J. had convicted the appellants for the offences punishable under
Sections 306 and 294(8) of the Indian Penal Code, 1860(in
short the 'IPC') so far as the accused No.1, appellant herein is
concerned and Section 306 IPC and 323 IPC so far as accused F
No.2 is concerned.

3. Questioning correctness of the judgment an appeal was
filed before the learned Additional Sessions Judge Fast Track
Court II Tirunelveli, Tirunelveli District, who directed acquittal of G
......
'f the accused persons. The complainant filed a revision petition
which was allowed by the High Court. The High Court allowed
the revision and restored the conviction as recorded by the trial
court but the sentence imposed was reduced.

4. In support of the appeal learned counsel for the appellant H
396 SUPREME COURT REPORTS [2009] 2 S.C.R.

. A submitted that the view taken by the- High Court is clearly
unsustainable. Various important aspects have been brushed ,
aside.
5. The prosecution version as unfolded during trial is as
follows:
B
PW2 is a resident of Vikramasingapuram. Murugammal
(hereinafter referred to as the 'deceased') was the daughter of
PWs.·2 and 3. PW3 is the wife of PW2. PW4 is the brother of
.\
Murugammal~ PW1 i~ a friend of PW4. On 5.5.1999 at about
c 2.15 p.m., the first accused Kannika came to the house of PW2
and shouted that his daughter had rang up asking for her son
. Rajesh, and spoke insultingly. At that time, the second accused
attempted to strangulate PW2 with a towel. Then, he shouted
for help. But otherswho were present there, pacified them. PW5
. was present in the scene of occurrence. Then, the matter was
0
taken to PW6. At that time, .the first accused again came to the
house of the victim and scolded against the" complainant party
in filthy language.·So, the victim did not tak~ any food and water
· afterwaros. On the next day morning, she committed suicide by
· . ;.p,Ouring ·kerosene on herself. It was informed to PW1. A
E · · mi·su11derstanding between the parties was known to PW8. Then,
' the'victim was taken toAmbasamundram High Ground Hospital.
Dr. Tamilselvi PW 10 examined the victim. She found tne
· following injuries:.
, ·.·-. ~. .-"Burri injuries over face, neck, chest
--- , · .. Burn both arms & legs
·Ski.n peeling."
. . ~and. gave a wound certificate Ex. P3·. Then the victim ·girl was
': :·G .. examihed .by Dr. Indira' Sujatha PW 1t. She found the following
injuries ..
"100% burn injuries all over the body. Though she is
' 9onsciou~;-olood pressure and pulse are not regular d~e
·to water insufficiency. ·Lungs filled with water."
KANNIKA V. 397
MOOKAIAH & ANR. [DR. ARIJIT ~ASAYAT J.]

She sent an intimation Ex.P4 to the Medical College Out A
Post Police Station. Dr. Thangaiya (PW 12) was of the
opinion that it is a fit case to record the dyiAg declaration.
So, he sent an intimation - Ex.PS to the Judicial Magistrate •. ·
and gave a certificate Ex.PS about the condition of the
patient. PW14 the Junior Divisional Engineer in Telephone B
Department, V.K. Puram was examined in order to verify
whether both the telephones were used on 5.5.1999. He •
said that there was no STD or ISD calls from both the
telephone numbers. The telephone Number of the victim
is 22839 and the telephone Number of the accused is c
22762. He further said that there was no facilities to find
out the local calls and gave a report Ex.PS. PW 15 was
the Head Constable in the Tirunelveli Medical College out
Post Police Station. After receiving an intimation from the
hospital, he proceeded to the hospital and accorded a
0
statement from Murugammal. He sent an intimation to V.K. .,
Puram Police Station through phone. That intimation was
received by the Head Constable present there. PW 16
was the Judicial Magistrate, No. 6, Tirunelveli. He received
an intimation from the hospital and proceeded· to the
,. . hospital and recorded the statement from Murugammal in E
the presence.of Dr. Thangaiya. At that time, the victim was
in a good state of mind to give dying declarafton_.Jbe
..J.
dying declaration recorded by the Judicial Magistrate. is_
~

Ex.P9. PW 17 Inspector of Tirur;ielveli Medical Colleg~ out
Post Police Station received the death intimation of victim F
·Murugamal from the hospital and sent it to V$. Pu ram
Police Station. PW 18the Head Constable inV.R. Puram
Police~Station received the death intimation and handed
over it to V.K. Puram Police·Station. PW 19 is.the Head
Constable in V.K Puram Police Station. On 13.5.1999 at G :':
about 8 a.m. he receiv~d the death intimation and dy~ng <.
declaration from the hospital. On the basis of them he- · ·
registered a ca$.e in Cr. No.190/99 under Section 1741:of
. {~
·the Code of Criminal Proce_~ure (in shc»rt 'Cr.P.C.'): and
sent the FIR to.. the Judicial Mag·istrate's Court and other H
398 SUPREME COURT REPORTS [2009) 2 S.C.R.

A superior officials. Then the investigation was taken over
by PW 20 Special Sub Inspector of V.K. Puram Police
Station. He proceeded to the Medical College Hospital
"
and conducted inquest over the body of the victim in the
presence of witnesses PWs.9 to 12 and panchayatar. He
B sent the body to the Medical College with a requisition
letter through the Head Constable 539 for postmortem
PW 13 Dr. Selvaraj received the requisition and conducted
postmortem. The doctor, inter alia, found the following :

Am;~earances found at the Qostmortem:
c
"Moderately nourished body of a female. Finger and toe
nails blue in colour. Infected burns seen on head, entire
face, neck front and back entire chest including both
breasts, upper part abdomen, both upper limbs front and
back, upper part of back on both sides. Both gluteal region,
D
both lower limbs front and back including soles of feet. (

(Lower part of abdomen, external genitalia, low back on
both sides are free of burns). The base of the burnt area
red in colour and partly covered with pus material.
Degloving of skin of both hands noted. Surgical cut down
E seen on the inner aspect of left ankle. Singeing of scalp
hair, eyebrows, eyelashes and axillary hair noted,"
He gave a post mortem report Ex.P7. Then, PW20 ,;.,
1
'
examined the witnesses Shanmugavel, Mukkiah, Jeyararn,
F Chandran, Subramanian, Dhanalalcshmi, Mariappan, Murugan,
Subramanian, Muniandi, Kothar Mideen and V~eraganesh and
recorded their statements. On 13.5.99 at about 3.00 p.m., he
prepared the printed FIR Ex.P14, mahazar Ex.P2 and a sketch
Ex.P11 in the presence of witnesses. Since the victim was dead,
he sent a requisition Ex.P12 to the Court to alter the Section
G
into 306 IPC. Then, he sent a requisition to the Judicial
Magistrate No.6, Tirunelveli to send the statement of the victim .. /--,

to the Judicial Magistrate, Ambasamundram., Further
investigation was conducted by PW21. He verified the mahazar,
sketch and atthachi prepared by PW20. So, he did not record
H
KANNIKA V. 399
MOOKAIAH & ANR. [DR. ARIJIT PASAYAT J.]

) the statements of witnesses sep;::irately. On 16.6.1999, he went A
to Tirunelveli Hospit~I. After exqrnining several others, on
4.11.1999, he recorded the statement of Judicial Magistrate-6,
Tirunelveli. On 21. 11.1999, he sent a requisition to the Junior
Engineer of Telephone Department, V.K. Purarn asking the call
details of Tel. No.~2893 of M~rugammal's house and 22732 of 8
accused Rajesh's house. He recorded the statement of Dr.
Tahngaiya.
After completion of investigation, charge sheet was filed.
Since the aocuseo abjured guilt, trial was held. Trial Court held
them guilty. But the First Appellate Court alloweq the appeal. C
Complainant filed a revision which was allowed. ·
6. The basic stand raised by the accused before the High
Court that the date of alleged occurrence is 5.5.1999 and the
FIR was lodged on 13.5.1999. Interestingly, the FIR was sent
after 40 days to the Court. The effect of the aforesaid factors D
does not appear to have been considered by the High Court. It
was also urged that the. scope and ambit of Section 401 (3)
Cr.P.C. has not been kept in view.
7. The prosecution was required to explain the delay which
is quite large. It is to ba noteq that the dying declaration was ~
purportedly record~d by the police constable and the magistrate
on 6.5.1999. There i$ no explc:rnation as to why the FIR was
lodged after a week. Still mP.re. interesting is the fact that the
FIR was sent after 40 days. This position has not been disputed
by learned eounsel for the respondents. F
8. Above being the position, we set aside the impugned
judgment and remit the matter to the High Court to consider the
effect of the delay In lodging FIR and the delay in dispatching of
the .same to the concerned cot,Jrt. The scope and ambit of
Section 401 (3) Cr.P.C. shall i:ilso be kept in view while dealing G
with the matter.
9. The appe~I is allowed to aforesaid extent.

K.K.T. Appeal Partly allowed.