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Madras HC : Dying stipulation might not always be a truth

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 10.12.2015

RESERVED ON : 21.04.2015
PRONOUNCED ON : 10.12.2015

CORAM : THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

Criminal Appeal(MD) No.377 of 2006

Raja … Appellant/Accused No.1

Vs.

State represented by,the Inspector of Police
Nesamani Nagar Police Station, Kanyakumari District.
(Crime No.269/2002) … Respondent/Complainant

Appeal filed underneath Section 374 Cr.P.C. opposite a self-assurance and
sentence finished in S.C.No.235 of 2003, antiquated 10.08.2006, on a record of the
learned Assistant Sessions cum Chief Judicial Magistrate, Nagercoil.

For Appellant : Mr.V.Kathirvelu,Senior warn for Mr.K.Prabhu

For Respondent : Mr.T.Mohan,Additional Public Prosecutor.

:JUDGMENT

The appellant figured as initial indicted in S.C.No.235 of 2003 in a Court of a Assistant Sessions Judge cum Chief Judicial Magistrate, Nagercoil. He was prosecuted along with his mom Kamalam (second accused) for offences punishable underneath Sections 498-A and 306 of a Indian Penal Code and underneath Sections 3 and 4 of a Dowry Prohibition Act. After trial, by a visualisation antiquated 10.08.2006, a conference Judge transparent a second indicted ? Kamalam of all a offences for that she was prosecuted, yet convicted a appellant – Raja (A1) for offences underneath Sections 498-A and 306 IPC alone and transparent him of a offences underneath Sections 3 and 4 of a Dowry Prohibition Act. The schooled conference Judge imposed a visualisation of 3 years severe imprisonment, a excellent of Rs.5,000/- and a default visualisation of 6 months severe seizure for a corruption underneath Section 498-A IPC and 10 years severe imprisonment, a excellent of Rs.5,000/- and a default visualisation of one year severe seizure for a corruption underneath Section 306 IPC. As opposite a pronounced self-assurance as good as sentence, a initial indicted ? Raja has elite this seductiveness before this Court underneath Section 374(2) of a Code of Criminal Procedure on several drift set out in a seductiveness petition.

2.For a consequence of preference and in sequence to equivocate confusion, a appellant shall be referred to as indicted No.1 and his mom Kamalam, who was transparent by a conference Court, shall be referred to as indicted No.2 in suitability with their ranks before a conference Court. The respondent shall be referred to as a prosecution.

3.The box of a prosecution, as accepted from a allot square and a justification adduced on a side of a prosecution, can be epitomised as follows;

(i) The initial indicted ? Raja is a father of defunct Sheela. Their
marriage took place on 24.04.2002. The matrimony label printed and distributed
for a same is remarkable as Ex.P3. The second indicted – Kamalam is a mother
of a initial accused. PW1 -Thangam and PW2 ? Velmurugan are a kin of
deceased Sheela. PW3 ? Rajesh is a son of PWs.1 and 2. The matrimony of
Sheela with a initial indicted – Raja was organised by PW4 ? Rajamani. The
parents of Sheela offering to give her 25 sovereigns of bullion jewels, yet the
second indicted – Kamalam demanded 3 some-more sovereigns of bullion wealth and
the same was concluded to by a kin of a deceased. In serve to 28
sovereigns of bullion jewels, a sum of Rs.50,000/- was concluded to be paid. At
the time of betrothal, a sum of Rs.1,000/- was paid and a change volume of
Rs.49,000/- was paid to a indicted persons during their chateau on 07.04.2002
by PW2 – Velmurugan in a participation of PW3 ? Rajesh, PW4 – Rajamani and
others.

(ii) Sheela lived in a chateau of a indicted for about dual months
after her marriage. Thereafter, she met her mom (PW1) and sensitive her
that a indicted were perfectionist a sum of Rs.40,000/- to transparent a debts
incurred by them for a matrimony and that she was going to oath her jewels
and make payment. PW1 suggested her to contend calm assuring that she
would start a minute and arrange supports by Dec 2002. Meanwhile, a second
accused contacted PW1 by a write of PW11 – Murugan bearing
No.220280 and finished a approach of Rs.40,000/- to liberate a debts incurred by
them for a matrimony of a initial indicted with Sheela. Further more, the
first indicted was dependant to ethanol drinking, got a wealth of Sheela and
pledged them underneath Exs.P5 and P6 respectively for a sum of Rs.8,000/- and
20,400/- on 29.06.2002 and 23.07.2002. Thereafter, during about 20.30 hours on
11.08.2002 a defunct Sheela attempted self-immolation by pouring kerosene
on her and environment her on fire. The same was sensitive to PW1 over phone.
After a attainment of PWs.1 to 3, Sheela was taken in an ambulance to a
hospital called ‘Irudhayams Hospital’, during Nagercoil and a Police were also
informed.

(iii) PW22 ? Dr.Ethayarajan is a owners of a pronounced hospital. While
admitting Sheela in a pronounced sanatorium during 9.30 p.m. on 11.08.2002, he found
her with 100% burns, prepared Ex.A8 ? Accident Register and gave her
treatment. In a pronounced occurrence, a initial indicted – Raja also sustained
30% burns, for that he was approved in a pronounced sanatorium and treated by
PW22. The Accident Register prepared for his acknowledgment is Ex.P10. As the
condition of Sheela was serious, a ask was finished to a Judicial
Magistrate No.II, Nagercoil for recording a failing stipulation by PW31, the
then Sub Inspector of Police underneath Ex.P16. PW28, a afterwards Judicial Magistrate
No.II, Nagercoil, accessible her failing stipulation underneath Ex.P17 on 11.08.2002
between 11.00 to 11.45 p.m. In a failing declaration, PW22 approved that
Sheela was conscious, oriented and fit for giving statement. The same is
marked as Ex.P9. On 12.08.2002 during 9.00 a.m. Sheela died during ‘Irudhayams
Hospital’, Nagercoil. Before her death, her matter was accessible by PW21 ?
Mr.Solamon, Head Constable, underneath Ex.P7 on 11.08.2002 during 11.00 p.m. and kept
it as a petition assigning Petition No.198 of 2002. PW31 ? Mr.Dhanapal, who
was a afterwards Sub Inspector of Police, Nesamani Nagar Police Station,
Nagercoil, perceived a genocide intimation, converted Petition No.198 of 2002
into a rapist box assigning Crime No.269 of 2002 for review under
Section 174 Cr.P.C., prepared Ex.P21 ? First Information Report in the
printed format and sent a same to a aloft officials.

(iv)After a box was purebred underneath Section 174 Cr.P.C., since
Sheela died within 7 years from a date of her marriage, inquisition was
conducted by PW34 ? Mrs.Lilly, a afterwards Revenue Divisional Officer/Sub
Divisional Magistrate, Nagercoil and she prepared Ex.P24 – Inquest Report.
After inquest, she sent a passed physique of Sheela to a Government
Headquarters Hospital, Nagercoil for autopsy. PW23 ? Dr.Jesu Thangam, along
with Dr.Sivakumari, conduced autopsy during Government Headquarters Hospital,
Nagercoil and prepared Ex.P11 – Postmortem Examination Report. After receipt
of a news per hyoid bone and a insides news underneath Ex.P13, they
issued final opinion underneath Ex.P12 opining that Sheela seemed to have died 6
to 8 hours before to autopsy due to burns.

(v)PW29 – Mr.T.Jeyachandran, a afterwards Deputy Superintendent of Police,
Nagercoil took adult a box for investigation, visited a place of
occurrence, prepared Ex.P18 – Observation Mahazar in a participation of the
witnesses Veerapandi (PW26) and Suresh Kumar and recovered MO.5 ? a burned
clothe; MO.6 ? a celebration burnt compare stick; MO.7 ? a partly burnt full-
sleeves shirt; MO.8 ? cigarette parcel containing 4 scissors filter
cigarette; MO.9 – Beedi bundle; MO.10 – Match Box; MO.11 ? Plastic Can;
MO.12 ? partly burnt Lungi; and MO.13 – Plastic Can underneath Ex.P19 – Mahazar.
He also prepared Ex.P20 – Rough Sketch. Then, during a march of his
investigation, he went to a sanatorium and examined a witnesses there and
recorded their statements.

(vi) Further review was taken adult by PW32 ? Mr.Chandrabose, the
then Inspector of Police, on a instructions of a Deputy Superintendent of
Police, on 15.08.2002. He altered a box into one for offences under
Sections 498-A and 306 IPC and underneath Section 3 of a Dowry Prohibition Act,
prepared Ex.P22 – alteration news and sent it to a Magistrate. He
arrested a second indicted Kamalam during 18.00 hours on 27.08.2002 and made
recoveries of a MO.14 – 4 emperor ?Pitchipoo chain?, Ex.P5, Ex.P6 and
Ex.P23 profits evidencing oath of certain jewels. He also arrested the
first indicted – Raja during 16.00 hours on 03.09.2002 during Irudhayams Hospital,
Nagercoil. Thereafter, a box was investigated by PW30 ? Mr.Venugobala
Krishnan, a afterwards Inspector of Police, Nesamani Nagar Police Station and he
examined some of a witnesses and accessible their statements. After PW30 ?
Mr.Venugobala Krishnan, PW35 – Mr.Murugan took adult a serve investigation,
collected a medical annals and other materials, finished the
investigation and submitted a final news on a record of a Judicial
Magistrate Court No.II, Nagercoil alleging elect of a offences
punishable underneath Sections 498-A and 306 of a Indian Penal Code and under
Sections 3 and 4 of a Dowry Prohibition Act by a indicted persons.
4. The box was taken on record by a Judicial Magistrate No.II,
Nagercoil as P.R.C.No.20/2003 and a pronounced Judicial Magistrate committed the
case for conference to a Court of Session, Kanyakumari District. After a case
was committed to a Court of Session, it was taken on record as S.C.No.235 of
2003 and finished over to a schooled Assistant Sessions Judge cum Chief Judicial
Magistrate, Nagercoil. Necessary charges were framed in a conference Court. The
accused pleaded not guilty.

5.In sequence to infer a case, a allot examined 35 witnesses as PWs.1 to 35, remarkable 29 papers as Exs.P1 to P29 and constructed 14 element objects as MOs.1 to 14. Besides a witnesses referred to in divide No.3, PW5 ? Suyambulingam, PW6 ? Louis, PW7 ? Ramalakshmi, PW8- Kavitha, PW9 ? Vasanthan, PW10 ? Balaiah Nadar, PW13 ? Aaththiraj, PW14 – Arputhamani and PW15 ? Visalakshi were also examined to pronounce about a purported approach of dowry and a occurrence heading to a genocide of Sheela. PW12 – Chrishthudass was examined as a person, who gave information to a Police over phone per a occurrence and contacted Irudhayams Hospital to send Ambulance. PW16 – Ponraj was examined in sequence to infer that a second indicted borrowed a sum of Rs.9,000/- from him. PW17 – Suyambu and PW18 ? Sundar were examined to infer a oath of a wealth underneath Exs.P5 and P6. PW19 ? EepanKesari was examined as one of a persons, who visited a place of occurrence and sent a defunct and a initial indicted who were found with browns to a sanatorium by an ambulance van. PW20 ? Xavier is a motorist of a ambulance outpost by that a defunct and a initial indicted were taken to a hospital.

6.After execution of recording of conference of a justification adduced on a side of a prosecution, a courtesy of a indicted were drawn to a damning materials found in such justification and they were questioned underneath Section 313(1)(b) per those damning materials and generally in honour of a box opposite them. They denied such justification opposite them and pleaded that they were innocent. No declare was examined and no ask was remarkable on a side of a accused.

7. The schooled conference Judge listened a arguments modernized on both sides, deliberate a justification in a light of a points urged in a arguments and on such consideration, reason a initial indicted alone guilty of a offences underneath Sections 306 and 498-A IPC, convicted him for a pronounced offences and condemned him as indicated above. As opposite a pronounced self-assurance and visualisation and seeking sum acquittal, a initial indicted has come brazen with a benefaction appeal.

8.This Court listened a arguments modernized by Mr.V.Kathirvel, schooled comparison warn for Mr.K.Prabhu, warn on record for a appellant and by Mr.T.Mohan, schooled Additional Public Prosecutor appearing for a respondents.

9.The schooled comparison warn for a initial indicted (appellant) vehemently contended that a conference Court, yet scrupulously appreciating a justification adduced on a allot side, chose to reason a initial indicted alone guilty of a offences underneath Sections 306 and 498-A IPC, while acquitting a second indicted of all a offences for that she was prosecuted; that a really same yardstick practical to a second indicted ought to have been practical to a initial accused, that would have brought a outcome of exculpation of a initial indicted also and that on a other hand, a schooled conference Judge, on suspicions and surmises, chose to reason a initial indicted guilty of a above pronounced offences, yet holding note of a principal element of rapist office that a allot opposite a indicted should be valid by a allot over reasonable doubt. It is a serve row of a schooled comparison warn for a appellant that there was check in preferring a censure and induction a case, that check could have been used for mixture and decoration to foist a box opposite a initial indicted and his mother. The schooled comparison warn for a appellant (A1) contended serve that a really fact that a Police chose to refrain from induction a box formed on a purported matter of Sheela accessible by PW21 ? Mr.Solamon and a fact that they chose to keep it usually as a petition, would give a reasonable guess that a pronounced matter could not have any contained damning information and that a same was burked and a matter implicating a indicted came to be replaced subsequently after a genocide of a deceased. The schooled comparison warn for a initial indicted (appellant) forked out a contradictions between a justification of PW21 and PW3, who is pronounced to have sealed in Ex.P7 – matter as an attestor and a pronounced inequality alone would be adequate to uncover a light alleviation and decoration finished by a Police with a perspective to widespread a web to entangle a indicted persons. The schooled comparison warn for a appellant/first indicted also referred to discrepancies per a volume allegedly paid on a date of betrothal and a chairman to whom it was paid and also a date on that and a chairman to whom a change volume was paid.

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10.The schooled comparison warn for a appellant (first accused) contended serve that a really fact that a initial indicted also postulated endless browns while perplexing to save a deceased, for that he had to take diagnosis for some-more than 3 months as inpatient, and a deficiency of any reason for a same by a allot will make a allot box of abetment of self-murder and cruelty / nuisance improbable. It is also a row of a schooled comparison warn for a initial indicted that a failing stipulation accessible by a Judicial Magistrate is not reliable, insofar as a Judicial Magistrate (PW.28) herself approved that she did not safeguard as to possibly no other chairman was there during a time of recording of failing stipulation of Sheela and that a same in and with a other admissions finished by a allot witnesses and a discrepancies found in a justification of a Police Officer as to when a ask for recording failing stipulation was made, would make a failing stipulation unreliable. It is also a row of a schooled comparison warn for a initial indicted (appellant) that a really acknowledgment finished by PW1 that she had tutored a defunct as to what matter should be given to a Judicial Magistrate as failing stipulation would make a failing stipulation unreliable. It is a serve row of a schooled comparison warn for a appellant (A1) that detached from some justification to a outcome that a indicted wanted a sum of Rs.40,000/- to transparent a debts incurred by them and a justification per a pledging of some of a jewels, there is no justification to uncover that a accused, during any indicate of time, treated a defunct Sheela with cruelty or tormented her perfectionist dowry and that in a deficiency of such transparent and reasoning evidence, a self-assurance of a initial indicted for offences underneath Sections 498-A and 306 IPC can't be legally postulated and a visualisation of a conference Court has got to be set aside in this courtesy and a appellant (first accused) should also be acquitted.

11. Per contra, it is a row of a schooled Additional Public Prosecutor that there are plenty justification to uncover that a approach was finished not usually during a time of negotiations for a matrimony yet also after a marriage. It is a serve acquiescence of a schooled Additional Public Prosecutor that given Sheela died within 7 years after her matrimony (to be accurate within 4 months after a marriage) due to burns, a hypothesis contemplated underneath Section 113-A of a Indian Evidence Act stands attracted. It is his serve row that teenager contradictions and pardonable aspects are sought to be blown out of suit on a side of a initial indicted (appellant) to shun from a clutches of law and that a anticipating of a Court next that a charges underneath Sections 498-A and 306 IPC opposite a initial indicted stood valid over reasonable doubt, is a good deliberate anticipating that does not aver any division in a appeal. The schooled Additional Public Prosecutor contends that a failing stipulation accessible by a Judicial Magistrate has to be given due weightage and a same advanced by a justification of a other allot witnesses viz., PWs.1 to 5, shall be adequate to infer over reasonable doubt a elect of a offences underneath Sections 498-A and 306 IPC by a initial indicted (appellant). Based on a above pronounced contention, a schooled Additional Public Prosecutor prays for exclusion of a appeal.

12.This Court paid a endangered care to a opposition contentions finished on both sides and also perused a materials accessible on record.

13. After registration of a box converting a petition series into a crime number, PW34 ? a Revenue Divisional Officer / Sub Divisional Magistrate conducted an inquisition on 12.08.2002 between 15.05 hours and 15.40 hours in a participation of Panchayatdhars. The inquisition news has been remarkable as Ex.P24. PW34, who conducted a inquest, remarkable a outcome of a Panchayatdhars that due to a celebration robe of a initial accused, his mom Sheela committed self-murder by self-immolation after dousing her with kerosene on 11.08.2002. After inquest, a physique was sent to a Government Headquarters Hospital, Nagercoil. The news of a Revenue Divisional Officer / Sub Divisional Magistrate, Nagercoil sent to a Deputy Superintendent of Police has been remarkable as Ex.P29. Though a initial review was settled to be finished by PW29 a Deputy Superintendent of Police, there is no ask to uncover that any suit for conducting autopsy was sent by him. On a other palm a justification of PW23 – Dr-Jesu Thangam, who conducted autopsy along with Dr.Sivakumari, on a passed physique of a defunct Sheela during Government Headquarters Hospital, Nagercoil on 12.08.2002 between 16.30 and 17.30 hours, would state that a autopsy conference was conduced pursuant to a suit sent by a Revenue Divisional Officer, Nagercoil. PW34, a afterwards Revenue Divisional Officer, who conducted inquest, simply states that she sent a passed physique to a Government Hospital by a Police and she did not impute to any suit in essay to control postmortem examination. In fact, a Constable or a Head Constable by whom a physique was sent to a Government Headquarters Hospital for postmortem conference was examined as a declare on a side of a prosecution. The ask for postmortem conference was not remarkable as a ask on a side of a prosecution. Had it been constructed and marked, a story of a box that would have been remarkable therein, can be ascertained. No excusable reason has been shown on a side of a allot for not producing a ask for postmortem conference as an vaunt and for a disaster to inspect a Police Officer by whom a same was sent to a hospital. In normal circumstances, a repudiation to do so might not be taken critical note of. But in a rare contribution and resources of a case, that shall be discussed hereunder, a above repudiation will assume significance.

14. PW23 – Dr.Jesu Thangam speaks about a autopsy conducted by him along with Dr.Sivakumari. The postmortem conference news is Ex.P11. Though insides and hyoid bone were sent to a Department of Forensic medicine for chemical examination, hyoid bone news has not been produced. However, a insides news has been remarkable as Ex.P13. No poison was rescued in a inner insides of a deceased. According to a testimony of PW23 ? Dr. Jesu Thangam, he gave a final opinion underneath Ex.P12, after receiving a hyoid bone news to a outcome that there was no pointer of detonate and a insides news to a outcome that no poison was rescued in a inner organs. The final opinion given by him and Dr.Sivakumari reads as follows:- ?The defunct would seem to have died of burns.?

As per a postmortem conference certificate remarkable as Ex.P11, a time of genocide was bound to be 6.00 to 8.00 hours before to a postmortem examination. Thus, a genocide would have occurred between 8.40 a.m. and 10.40 a.m. on 12.08.2002. As per a justification of PW22 – Dr.Ethayarajan, Sheela died during about 9.00 a.m. on 12.08.2002. She was approved in a pronounced sanatorium during 9.30 p.m. on 11.08.2002. In Ex.P8 – Accident register, a condition of a studious and a attribute of a persons who brought her to a sanatorium and also a inlet of a injuries were noted. The information per a means of such injuries was wanting to be remarkable in a collision register remarkable as Ex.P8. The genocide pointer sent by Dr.Ethayarajan of Irudhayams Hospital Private Limited to a Police is also on record, yet a same has not been remarkable as an vaunt on a side of a prosecution.

15. PW31 ? Dhanapal, a afterwards Sub Inspector of Police during Nesamani Nagar Police Station, is pronounced to have perceived a genocide intimation, formed on that he converted a Petition temperament No.198/2002 purebred by a Head Constable, into a rapist box assigning Crime No.269/2002 underneath Section 174 of a Code of Criminal Procedure. Though a initial information news prepared in a printed format came to be remarkable as Ex.P21, a genocide pointer perceived from a sanatorium has not been remarkable as an vaunt on a side of a prosecution. Further more, it is apparent from a justification of PW31 that no review could have been conducted by PW31 as no box was purebred for an punishable corruption or a suspected cognizable corruption before to Ex.P21 ? First Information Report. The initial partial of his testimony is to a outcome that he came into a design usually after receiving a genocide pointer of Sheela during 10.30 hours on 12.08.2002, whereupon a rapist box came to be purebred by him underneath Ex.P21 – First Information Report. However, in a after partial of his testimony, he has settled that it was he who sent a suit to a Judicial Magistrate No.II, Nagercoil for recording a failing stipulation of Sheela. The pronounced ask minute has been remarkable as Ex.P16. This Court wonders how PW31 could have sent Ex.P16 suit minute to a Judicial Magistrate for recording a failing stipulation of defunct Sheela, when he came into a design usually on receipt of a genocide pointer and usually after receipt of a genocide intimation, a rapist box came to be registered.

16. Two statements of defunct Sheela came to be accessible on 11.08.2002. According to a prosecution, a initial one is a failing stipulation accessible by PW28 ? Judicial Magistrate No.II, Nagercoil. The failing stipulation has been remarkable as Ex.P17 and a certificate of a Doctor per alertness and a fit condition of a studious to give matter that forms partial of a failing stipulation accessible by a Judicial Magistrate, has been remarkable as Ex.P9. As a suit for recording a failing stipulation of Sheela is settled to have been sent by PW31 – Sub Inspector of Police, who came into a design usually after a receipt of a genocide intimation, it is utterly apparent that a allot has not come with a loyal chronicle yet suppressing element facts. The same might be a reason since a genocide pointer news has not been remarkable as a apart document. In a genocide pointer report, an publicity came to be finished to a following effect:

?Sir, perceived by me during 10.30 hours on 12.08.2002 and purebred a box in Nesamani Police Station Crime No.269 of 2002 U/s.174 Cr.P.C. – sealed S.I. 11/8?

If during all a box was purebred on 12.08.2002 during 10.30 hours, how such an publicity came to be finished temperament a signature of a Sub Inspector of Police with a date 11.08.2002 can't be explained. The same is a reason since a pronounced ask was not remarkable as an vaunt on a side of a prosecution. The above pronounced aspect has been forked out in sequence to uncover that there has been mixture and many of a papers could have been brought into existence usually after a genocide of a defunct Sheela. The same is a reason since no box was purebred formed on a matter of Sheela allegedly accessible by a Police.

17. The inventive device adopted by a allot is to contend that a matter of Sheela accessible by a Police was reserved usually a petition number. If during all a matter and a failing stipulation contained any damning element opposite a accused, a Police would not have selected to allot a petition series yet induction a rapist case. The matter was allegedly accessible by PW21 on 22.45 hours on 11.08.2002. As PW21 was pronounced to be in allot of a General Diary of a Police Station, he claims to have purebred a matter usually as Petition No.198 of 2002. The pronounced matter contains her ride sense which, according to a prosecution, is a left palm ride sense of Sheela. According to a prosecution, a pronounced matter was accessible in a participation of PW3 – Rajesh i.e., zero other than a hermit of a defunct and he is pronounced to have attested a censure as a witness. His signature as an attestor of a censure has been remarkable alone as Ex.P4. Though PW3 has settled that a Police came to a hospital, accessible a matter of his sister Sheela and performed her ride sense and that he sealed as an attestor, he did not state a time during that a pronounced matter was recorded. However, during cranky examination, he finished a sure acknowledgment that he did not remember a time during that he sealed in a censure as an attestor. He also approved that he could not state a place within a sanatorium where his signature was performed in a matter of Sheela. The serve acknowledgment finished by him is to a outcome that he did not know who scripted a matter and when such matter was combined and that when he sealed in that ask will uncover that a matter had already been combined and he was not benefaction during a time of recording of a statement. Therefore, a box of a allot that Ex.P7 matter was accessible by PW21 in a participation of PW3 is puzzled and a same can't be believed.

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18. It is a fact not puzzled yet approved that a defunct Sheela died during 9.30 a.m. on 12.08.2002. The justification of PW22 – Dr.Ethayarajan and a justification of PW28 – Judicial Magistrate are to a outcome that a failing stipulation of Sheela was accessible during 10.50 p.m. on 11.08.2002. According to a justification of PW28, she perceived a suit underneath Ex.P16 during 10.50 p.m. and during 11.00 p.m. she started examining defunct Sheela and accessible her failing stipulation remarkable as Ex.P17 and finished during 11.45 p.m. on 11.08.2002. According to PW1, who is pronounced to have been with a defunct in a sanatorium does not pronounce about recording of Sheela’s matter by a Police. The justification of PW2 – father of a defunct is also to a same effect. He has not oral about possibly recording of failing stipulation of Sheela by PW28 or recording of matter of Sheela by a Police. PW3 – who is pronounced to have been in a hospital, witnessed a Police recording a matter of Sheela, and sealed it as an attestor, has not oral anything about a failing stipulation accessible by a Judicial Magistrate or even a revisit of a Judicial Magistrate to record a failing declaration. The above pronounced aspect, joined with a publicity found in a genocide intimation, that has not been remarkable by a prosecution, will make it transparent that Ex.P7 matter should have been combined antedating a same. It should also be remarkable that Ex.P7 enclose a following endorsement:

?Sir, Recorded by me during 22.45 hours on 11.08.2002 and came to
statement during 23.00 hrs. and entered as petition No.198/2002 and submitted for
SI’s conference ? pointer / 11.08.2002?
There is an annexure to Ex.P7 and a annexure enclose following the
endorsement:
?Recorded by me.
sd. 11/08/2002 @ 10.15 p.m.?

The signature found in Ex.P7 does not sum with a signature found in a pronounced publicity in a annexure. It was settled to be accessible during 10.15 p.m., since Ex.P7 is settled to be accessible during 10.45 p.m. Hence, it creates a reasonable guess that progressing papers came to be suppressed and new papers came to be brought into existence substantially with mixture and embellishment, in sequence to wire in a indicted persons. As such, no faith can be given to a justification of PW21 and Ex.P7 statement. The same have got to be wanting from a range of care as they are found to be dangerous since of a concoction.

19.The remaining square of justification is a failing stipulation (Ex.P17) accessible by a Judicial Magistrate who was examined as PW28. Though there is a hypothesis that a persons in dead-bed awaiting genocide during any impulse will not tell a lie, such a hypothesis shall not have concept application. It depends on a contribution and resources of any case. If a matter accessible as a failing stipulation of a defunct inspires a certainty of a Court, afterwards there would not be any snag for a Court to act on such failing stipulation to bottom a conviction. However it shall be advantageous to find corroboration. Such failing declarations shall have weight supposing it is not valid that builder was not unprotected to a education of others before creation such failing declaration. In a box on hand, it is a acknowledgment of PW1 that her daughter was tutored by them as to how she should give her matter as failing stipulation to a Judicial Magistrate.

The applicable apportionment of hertestimony in vernacular is extracted hereunder:

?khIp];l;onul; M];gj;jphpf;F te;jpUe;jhh;. mth; nghFk;;nghJ ehd; ghh;j;njd;. khIp];l;onul;olk; vd;d brhy;yntz;Lk; vd;W ehd; vd; kfsplk; brhy;ypf;bfhLj;J mJnghy; vd;Dila kfSk; khIp];l;onul;olk; Kiwahf brhd;dhs; vd;why; Mkhk;.?

In sequence to stop a acknowledgment finished in a cranky examination, defying a objections finished on seductiveness of a accused, a conference Court seems to have authorised a allot to put a doubt as to possibly she saw her daughter after she was taken to a hospital. The answer given by her was in a negative. Such an try to give a sum go by to a justification in a arch conference and also a acknowledgment finished in a cranky conference would volume to a hoax of justice, throwing a manners per recording of justification in air. Further, PW31 ? Dhanapal, a afterwards Sub Inspector of Police, is pronounced to have purebred a box on receipt of a genocide intimation. We have seen supra that PW31 came into a design usually after receipt of a genocide intimation, whereupon he purebred a box underneath Ex.P21 ? First Information Report. As such, a suit allegedly sent by him to a Judicial Magistrate underneath Ex.P16 will give arise to a reasonable guess that a initial partial of a review that was finished by PW31 came to be burked and new papers came to be brought into existence.

20.Further more, PW28, a Judicial Magistrate also frankly approved that she did not make a note as to possibly a kin and friends were there during a time of her recording a failing stipulation of Sheela. There is also zero to uncover that a Judicial Magistrate attempted to discern possibly a defunct was briefed as to what should be settled by her in a failing declaration. In perspective of a above pronounced infirmities and discrepancies, it shall not be in a seductiveness of probity to rest on a failing stipulation of Sheela remarkable as Ex.P17.

21.However, a allot relies on Section 113-A of a Evidence Act and it is contended on seductiveness of a allot that in box of self-murder by a married lady within 7 years after her marriage, there shall be a hypothesis that her father or such of a kin of her husband, who had subjected her to cruelty, abetted her suicide. According to a submissions finished by a schooled Additional Public Prosecutor, cruelty was caused to a defunct by her father and mother-in-law (A1 and A2) in a form of perfectionist dowry and also by a initial indicted in another form by pledging many of a wealth of defunct Sheela and also by his celebration robe that resulted in visit violence of a defunct Sheela. The schooled Additional Public Prosecutor relies on a justification of PWs.1 to 4 in support of a box of a allot that there was a approach and acceptance of dowry, when a matrimony of a defunct with a initial indicted was arranged. The above pronounced witnesses spoke to a outcome that a kin of a defunct volunteered to accoutre their daughter with 25 sovereigns of bullion wealth and that a indicted persons demanded 3 some-more sovereigns of bullion jewels. In this regard, yet PW1 in her justification settled that they concluded to give 28 sovereigns of bullion jewels, it is her matter in justification that 27 sovereigns of bullion wealth were given to her daughter Sheela. It is not a justification of PW1 that any of a indicted demanded a change one emperor also. Even yet PW2 – Velmurugan would have settled that a indicted demanded 28 sovereigns of bullion jewels, his justification is wordless as to a apportion of a bullion wealth given to his daughter Sheela. The justification of PW3, a hermit of a defunct is to a outcome that 28 sovereigns of bullion wealth were given to his sister Sheela during a time of her marriage. The same is in counterbalance with a justification of his mom viz., PW1. PW4 ? Rajamani, who is pronounced to have organised a matrimony between a initial indicted and defunct Sheela does not contend in evident tenure that there was a approach as oral to by PWs.1 to 3. He simply states that on a bride?s side, it was concluded to accoutre a bride with 28 sovereigns of bullion wealth and give a income of Rs.50,000/-. The same is some-more in a inlet of a explanation of a willingness of a kin of a defunct rather than a approach finished by a indicted persons. PW4 also does not privately state a apportion of bullion wealth with that a defunct Sheela was ornate during a time of her marriage. Above all, an try was finished to uncover that even a bullion sequence presented by a bride in sell of a bullion bangle (fhg;g[) presented by a groom (first accused) during a time of betrothal, as dowry.

22. So distant as a remuneration of income is concerned, there are critical contradictions in a justification adduced on a side of a prosecution. It is a prevalent use for a bridegroom’s side to make a favoured remuneration in income to a bride during a time of betrothal and a pronounced volume shall be called betrothal income (ghpr gzk;). Quite discordant to a prevalent practice, a allot witnesses have settled that a sum of Rs.1,000/- was paid by a bride’s side to a indicted (bridegroom and his mother) during a time of betrothal. Even in this courtesy there are certain contradictions. According to PW1, a sum of Rs.1,000/- was paid by them to a indicted during a time of betrothal. But, according to PWs.2 to 4, a sum of Rs.1001/- was paid. PWs.1 and 3 have settled that a volume was paid to a control of a encampment (Ch; jiyth;), since PW4 says that it was handed over to a comparison consanguine uncle of a initial accused. There is deficiency of justification to a outcome that a comparison consanguine uncle of a initial indicted was a control of a encampment during that indicate of time. PW6 ? Louis is zero other than a sister?s father of PW1. According to his evidence, a initial indicted presented a ring (nkhjpuk;) to defunct Sheela during a time of betrothal and a kin of Sheela gave a initial indicted a bullion wreath definition ?chain? that is utterly discordant to a justification of PW3 that a initial indicted presented a bullion bangle (fhg;g[) to defunct Sheela during a time of betrothal. PW6 does not pronounce about a remuneration allegedly finished during a time of betrothal.

23.A sum of Rs.49,000/- being a change amount, after deducting a volume allegedly paid during a time of betrothal from a volume concluded to be paid, is claimed to have been paid to a indicted on 07.04.2002 during their residence. PW2 to PW4, PW6 and one Nagarajan were a persons who were allegedly benefaction during a time of creation such remuneration and admittedly, PW1 was not present. According to PW2, a change volume was handed over to a initial accused. But, according to PW3, a pronounced sum of Rs.49,000/- was handed over to a comparison consanguine uncle of a initial accused. In a light of a above pronounced contradictions, an alleviation was finished in a justification of PW4, who came to be examined subsequently. He has settled that a volume was handed over to a initial indicted and he in spin handed over a same to his comparison consanguine uncle. The justification of PW5, in this regard, is wholly different. According to him, a pronounced volume was handed over to a ?father? of a initial accused. The other witnesses examined on a side of a allot to infer a above pronounced aspect of a allot box pleaded deficiency of believe and they did not support a allot box in this regard. In fact, PW5 and PW7 to PW10 have also been cranky examined on a side of a allot with a accede of a Court to infer a above pronounced aspect. Despite a same, no answer enlightened to a allot box came to be elicited from them. In perspective of a above pronounced contribution and circumstances, a conference Court itself reason that a purported approach of dowry and acceptance of dowry by a indicted persons before and during a time of matrimony was not substantiated by a allot by arguable evidence.

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24. So distant as a purported approach of Rs.40,000/- which, according to a prosecution, was finished dual months after a solemnisation of a marriage, zero of a allot witnesses has settled that such a approach was finished by a initial accused. The claim is usually opposite his mom viz., a second accused, as if she finished a approach over phone and also directly when she met PW1. PW1 and PW2 do not impute to any such telephonic approach or a personal approach finished by a second accused. It is a justification of PW1 that her daughter alone met her and asked her to arrange income for a liberate of a debts of her husband. However, an alleviation was finished by PW3, who spoke to a outcome that following Sheela, a second indicted also came, met PW1 and asked her to give some income (bfhQ;rk; igrh ghh;j;Jj; jhUq;fs;) to liberate their debts. The introduction of PW11 ? Murugan, in this regard, seems to be a theatre managed uncover with a perspective to urge a box of a allot as to a purported approach of Rs.40,000/- finished by a second accused. It is his justification that yet PW1 is his relations and she lives in a chateau situated usually behind his house, during no indicate of time, solely a date on that a second indicted called her over phone, PW1 used his telephone. According to PW3, his sister (Sheela) came with a ask dual months after her matrimony and usually thereafter, a second indicted came and met PW1 to make a ask for money. But, PW11 says that within 20 or 25 days after a matrimony of Sheela a phone call came. Even otherwise, PW11 could not have listened a conversation, especially, what was oral by a second accused. Hence, he would conveniently contend that he guarded a details of a review by creation an enquiry with PW1. PW1 has not settled anything about such telephonic conversation. As such a justification of PW11 will be strike by a order opposite scuttle-butt evidence. Hence, we have to come to a required end that a purported approach approach finished by a second indicted has not been valid by a allot by adducing arguable evidence. The same was a reason since a conference Court came to a end that there was no explanation of approach of dowry on a partial of possibly of a indicted persons that resulted to in their exculpation of a charges for offences underneath Sections 3 and 4 of a Dowry Prohibition Act. As opposite a pronounced acquittal, a State has not elite any appeal.

25. So distant as a offences underneath Sections 498-A and 306 IPC, a second indicted has been transparent by a conference Court. The exculpation of a second indicted in honour of a pronounced offences has not been challenged by a State by preferring an appeal. She was transparent on a grounds that a purported approach of income finished by her was not valid and no act of cruelty committed by her opposite a defunct Sheela was proved. On a other hand, a conference Court has reason that a initial indicted (appellant herein) committed cruelty on his mom (Sheela) by pledging of her wealth within 3+ months from a date of marriage. Again, relying on a failing stipulation of a defunct Sheela accessible by PW28 – Judicial Magistrate that has been remarkable as Ex.P17, a schooled conference Judge reason that a initial indicted (appellant herein) was valid to have beaten his mom (Sheela) really mostly underneath a change of ethanol to reason him guilty of a corruption underneath Section 498-A IPC. By requesting a hypothesis contemplated underneath Section 113-A of a Evidence Act, a schooled conference Judge reason a initial indicted (appellant herein) guilty of a corruption underneath Section 306 IPC also. For improved appreciation, Section 113-A of a Evidence Act is reproduced hereunder:-

? 113A. Presumption as to abetment of self-murder by a married woman.- When
the doubt is possibly a elect of self-murder by a lady had been abetted
by her father or any relations of her father and it is shown that she had
committed self-murder within a duration of 7 years from a date of her
marriage and that her father or such relations of her father had subjected
her to cruelty, a justice might presume, carrying courtesy to all a other
circumstances of a case, that such self-murder had been abetted by her husband
or by such relations of her husband.?

A care of a pronounced territory will make it transparent that a said
provision prescribes dual conditions for sketch such a presumption. The first
one is that ?the lady should have committed self-murder within 7 years of
the marriage? and a second one is that ?she should have been subjected to
cruelty by her father or such of his relatives, who is sought to be
punished?. So distant as a initial condition is concerned, there is no dispute
that a genocide of Sheela was a self-murder by self-immolation. The justification of
the medical officer, who treated her viz., PW22- Dr.Ethayarajan, the
evidence of PW23 – Jesu Thangam who conducted autopsy, Ex.P11 ? Post-mortem
Examination Report, Ex.P13 – Viscera Report and Ex.P12 – final opinion of
PW23 will uncover that a genocide of Sheela was a self-murder by self-immolation.
Within 4 months from a date of her matrimony such genocide has occurred and
hence, a initial condition stipulated in Section 113-A of a Evidence Act
stands established.

26. So distant as a second condition is concerned, it is a row finished on a side of a allot that a really fact that a initial indicted affianced roughly all a wealth of a defunct within 3-1/2 months from a date of her marriage; that by his celebration robe he used to kick a defunct Sheela really mostly and that a same will uncover that he committed cruelty as tangible underneath Section 498-A IPC. Section 498-A IPC defines a tenure ?cruelty? as follows; ?(a) Any bullheaded control that is of such a inlet as is expected to expostulate a lady to dedicate self-murder or to means grave damage or risk to life, prong or health possibly mental or physical) of a woman; or

(b) Harassment of a lady where such nuisance is with a perspective to coercing her or any chairman associated to her to accommodate any wrong approach for any skill or profitable confidence or is on comment of disaster by her or any chairman associated to her accommodate such demand.?

As we have seen supra, there is no explanation of approach of income or skill or profitable confidence in tie with a marriage, or differently for continuation of a marital relationship. In fact, both a indicted were transparent of a offences underneath Sections 3 and 4 of a Dowry Prohibition Act. Absolutely there is no justification to uncover that a initial indicted (appellant herein), during any indicate of time demanded income from a kin of a defunct Sheela. The second indicted as opposite whom there is some justification was transparent by holding that such approach was not proved. On a other hand, a initial indicted (appellant herein) alone was reason by a conference Court guilty of a offences punishable underneath Sections 498-A and 306 IPC, especially relying on a failing stipulation and a purported matter of defunct Sheela remarkable as Exs.P17 and P7 respectively.

27. We have seen supra that Ex.P7 is doubtful. We have also seen that Ex.P17 – failing stipulation is not arguable as there are resources to aver clever guess that Sheela could have been briefed and tutored to implicate a initial accused/appellant. Even in Ex.P7 a reason for her self-murder has been reserved to be a celebration robe of a initial indicted notwithstanding her advise and also a fact that on a fatal day a initial accused, after attending a relative’s wake ceremony, came in an doubtful mood. The matter found in Ex.P7 is also to a outcome that a defunct herself affianced her wealth and liberated a debts of her husband. Therefore, there is zero in a pronounced matter to a outcome that a initial indicted used to kick her. However, an annexure found with Ex.P7 contains an averment to a outcome that even after she set her on fire, a indicted did not make any bid to save her. On a other hand, it stays an undisputable fact that in a occurrence a initial indicted (appellant herein) also postulated 30% browns that was approved to be grievous. PW22 – Dr.Ethayarajan in his justification has clearly approved that a initial indicted was also approved with browns for diagnosis in his sanatorium and he took diagnosis as an inpatient. As per his justification and Ex.P10 – Accident Register, he was approved as quadriplegic on 11.08.2002 and liberated on 03.11.2002. It seems, duration he was arrested, while he was holding diagnosis as an quadriplegic in a pronounced hospital. It is also apparent from a justification of PW22 and Ex.P8 – Accident Register that a defunct Sheela was brought to a sanatorium for diagnosis by her father (A1), mom (PW1) and hermit (PW3). That being so, a mixture came to be finished in a form of a matter of a defunct in Ex.P7 and a annexure, as if no bid was finished by a indicted chairman to save her after she attempted self-murder by self- immolation. PWs.1 and 3 also approved that when they went to a chateau of a accused, after conference a news of a occurrence, they saw a defunct with endless browns in one room and a initial indicted with browns in another room. The allot witnesses have also approved that a initial indicted also accompanied a defunct Sheela to a hospital, where, after a acknowledgment of a deceased, a initial indicted was approved as an quadriplegic for treatment. He had postulated browns in right thigh, right shoulder, right top arm and his abdomen. His bladder was influenced and he also struggled to pass urine. PW22 binds testimony for a same. All a above pronounced contribution will uncover that when a defunct attempted self-murder by self-immolation, a initial indicted (appellant herein) attempted to save her and in such an try he also got harmed and perceived browns with that he was found.

28. If these aspects are taken into consideration, a usually trustworthy end that can be arrived during is that a allot miserably unsuccessful to infer that a initial indicted committed acts of cruelty as contemplated underneath Section 498-A IPC. In addition, even if a dual conditions stipulated underneath Section 113-A of a Evidence Act are valid to exist, it is not involuntary that a hypothesis of abetment shall be drawn. On a other hand, a Court enjoins a avocation to find out possibly such a hypothesis can be drawn or not after holding into care of all a contribution and surrounding resources of a case. The contribution and resources of a box discussed above will make it transparent that a hypothesis contemplated underneath Section 113- A shall not be validly drawn. As there is no approach justification of abetment of self-murder and a hypothesis underneath Section 113-A of a Evidence Act will also be ruled out, a initial indicted / appellant is entitled to be reason not guilty of possibly a corruption underneath Section 498-A IPC or a corruption of abetment of self-murder punishable underneath Section 306 IPC. The schooled conference Judge on a perplexity of a sustenance of law and crude appreciation of evidence, rendered an erring anticipating that a allot valid a charges opposite a initial indicted for offences underneath Sections 498-A and 306 IPC over reasonable doubt and convicted him. The visualisation of a conference Court, holding a initial indicted (appellant herein) guilty of a pronounced offences and convicting him for a pronounced offences shall yet perplexity be termed as defective, noxious and unbecoming and a same is probable to be set aside by this Court.

29. In a result, this rapist seductiveness is allowed. The visualisation of a conference justice antiquated 10.08.2006 finished in S.C.No.235 of 2003 in honour of self-assurance and visualisation opposite a appellant (A1) is set aside. The appellant is transparent of a charges with that he stood charged and he is set during liberty. The bail bond, if any, executed by a appellant shall mount cancelled. The excellent amount, if any, paid shall be refunded to a appellant.

To

1.The Assistant Sessions cum
Chief Judicial Magistrate,
Nagercoil.

2.The Inspector of Police
Nesamani Nagar Police Station
Kanyakumari District.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai..

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