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Ayyanar And Muniammal-vs-State Rep. By Sub Inspector Of on 10 August, 2006

Madras High Court Ayyanar And Muniammal-vs-State Rep. By Sub Inspector Of on 10 August, 2006
Author: K Basha
Bench: K Basha

JUDGMENT

K.N. Basha, J.

1. A-1 and A-2 in S.C. No. 108 of 1997 on the file of the learned Assistant Sessions Judge, Panruti, are the appellants. They have come forward with this appeal challenging their conviction and sentence passed by learned Judge by the judgment dated 11.9.1998 convicting them under Section 304B IPC. and sentencing them to seven years rigorous imprisonment.

2. The brief facts of the case, as projected by the prosecution, are as follows:

A-1 is the husband of the victim in this case, as both of them got married on 26.10.1994. A-2 is the mother of A-1. P.W.2 is the father of the deceased, P.W.3 is the mother and P.Ws.4 and 5 are the sister and brother of the deceased. According to P.Ws.2 and 3, the father and mother of the deceased, the deceased and A-1 got married on 26.10.1994 and at the time of marriage, though the accused demanded five sovereigns of jewellery, P.Ws.2 and 3 have given only four sovereigns of jewellery, as they could not give one more sovereign of jewellery and therefore, A-1 and A-2 treated the deceased cruelly, as a result, the deceased informed her parents, viz., P.Ws.2 and 3, in respect of the cruel treatment made by A-1 and A-2. It is also further alleged that A-1, the husband of the victim, said to have demanded Rs. 10,000/- for setting up a separate family and even this was also said to have been informed by the deceased to her parents, P.Ws.2 and 3 and both of them informed that they are not in a position to pay such an amount of Rs. 10,000/-. It is also stated by P.Ws.2 and 3 that out of the wedlock of A-1 and the deceased, a female child was born and after birth of the female child, there were frequent quarrels between the accused and the deceased. P.W.2, the father of the deceased, stated that the deceased used to come to his house and also informed about the conduct of A-1 and A-2. P.W.3, the mother of the deceased, further stated that three months prior to the occurrence, the deceased came to her house and thereafter, returned back to the matrimonial home and on 3.11.1996, the brother of A-1 came there and informed that the deceased consumed poison. Thereafter, P.Ws.2 and 3 went to a private hospital and from there, they went to Government Hospital, Panruti, where they found the deceased died.

3. On 3.11.1996 at 10.00 a.m., P.W.11, the Village Administrative Officer, received the information in respect of the occurrence from his Assistant one Kannaiyan and thereafter, he lodged a report with P.W.8, the Sub Inspector of Police, Pudupettai Police Station, under Ex.P-1. P.W.8, the Inspector of Police, received the report, Ex.P-1, on 3.11.11996 at 11.00 a.m. from P.W.1, Village Administrative Officer and registered a case in Crime No. 732 of 1996 under Section 174 of the Cr.P.C. He prepared the express first information report, Ex.P-13. Thereafter, he has sent the reports, Exs.P-1 and P-13 to P.W.9, the Tahsildar, the higher officials and to P.W.10, the Deputy Superintendent of Police.

4. P.W.9, Tahsildar, on receiving information in respect of the case at 2.45 p.m. on 3.11.1996, went to Government Hospital, Panruti, conducted inquest over the dead body and prepared the inquest report, Ex.P-14. He has also recorded the statement of P.W.2 under Ex.P-2, the statement of P.W.3 under Ex.P-3 and the statement of P.W.4 under Ex.P-8. He has also examined the brother of the deceased, P.W.5 and recorded his statement under Ex.P-9. It is stated by P.W.9 that the witnesses examined by him, viz., the parents, sister and brother of the deceased have stated that the deceased said to have committed suicide due to the ill-treatment of the accused and also due to the demand of Rs. 10,000/- and jewellery.

5. P.W.10, the Deputy Superintendent of Police, on receipt of the first information report in this case on 3.11.1996, reached the scene of occurrence at 2.30 p.m. and prepared observation mahazar, Ex.P-2. He prepared rough sketch, Ex.P.16. Thereafter, he went to the Government Hospital, Panruti, at 6.00 p.m., where he examined the witnesses and recovered M.O.1, a bottle, under Ex.P-3 mahazar. He has also examined P.Ws.2 and 3 and recorded their statements. He recovered the marriage invitation, Ex.P-17, and examined the other witnesses. P.W.10 also recovered a letter Ex.P-15. In view of the letters and the inquest report, Ex.P-14, of the Tahsildar, P.W.9, P.W.10 altered the offence to one under Section 304B IPC. and sent the altered first information report to the Magistrate’s Court.

6. The doctor, P.W.6, attached to Government Hospital, Panruti, conducted post-mortem on the dead body of the deceased, as per the request of Tahsildar, P.W.9, on 3.11.1996. The doctor, P.W.7, also joined with P.W.6 while conducting post-mortem. They have not found any external injuries. On internal examination, the following symptoms were found:

Organs in position: Lungs – congested. Larynx – no foreign body. Hyoid bone – intact. Heart – chambers filled with blood. Abdomen – Not distended. On opening – organs in position. Stomach – contains 500 mlo of brown colour fluid. Small intestine, large intestine – empty. Spleen – congested. Liver – congested. Kidney – congested. Bladder – empty. Uterus – 10-12 weeks size products of conception present. Pelvis – Intact. Skull – intact. On opening – Membranes intact, congested. Brain – congested. Spinal column – intact.

They sent the specimen of stomach contents, intestine contents, samples of liver and kidney for chemical analysis. Both the doctors, P.Ws.6 and 7, gave final opinion under Ex.P-12 to the effect that the deceased would appear to have died of quinal phos, a poisonous organophosphorus insecticide.

7. P.W.10 arrested A-1 on 11.1.1997 at 5.00 p.m. at Kuchipalayam Junction and A-2 obtained anticipatory bail. P.W.10 also sent the altered first information report, Ex.P-18, to the Court. After receipt of the chemical examination report, P.W.10 also examined the doctors, P.Ws.6 and 7 once again. After completion of the investigation, P.W.10 filed charge sheet against A-1 and A-2 on 31.1.1997 under Section 304B IPC.

8. The prosecution, in order to bring home the charges levelled against the accused, examined P.Ws.1 to 10, filed Exs.P-1 to P-20 and also marked M.O.1.

9. When the accused were questioned under Section 313 of the Cr.P.C. in respect of the incriminating materials made appearing against them, both the accused have come forward with a version of total denial and stated that they have been falsely implicated in this case. On the side of the defence, A-1 was examined as D.W.1 and Exs.D-1 to D-9, the letters said to have been written by the deceased, were marked.

10. Mr. K.S.Rajagopalan, learned Counsel appearing for the appellants, contended that the prosecution has miserably failed to establish the offences alleged against the accused by adducing clear, cogent and convincing evidence. The learned Counsel for the appellants further contended that the entire prosecution case rests on the evidence of the interested witnesses, viz., P.Ws.2 to 5, who are the parents, sister and brother of the deceased and there is absolutely no independent witnesses to support the prosecution case. It is further contended by the learned Counsel for the appellants that even as per the evidence of P.Ws.2 to 5, the allegation of demand of dowry or any cruel treatment met by the deceased at the hands of the accused was not disclosed. The learned Counsel for the appellants further contended that the entire evidence adduced by the prosecution through the witnesses, P.Ws.2 to 5, do not constitute an offence under Section 304B IPC. It is also pointed out by the learned Counsel for the appellants that even as per the version of P.Ws.2 to 5, neither A-1 nor A-2 demanded any dowry at any point of time directly and such an allegation is levelled only on the basis of the information said to have been given by the deceased to them. It is further pointed out by the learned Counsel for the appellants that admittedly, the deceased visited the parental home only three months prior to the occurrence and the last three months, she was very much residing along with her husband and therefore, it is crystal clear that there is absolutely no immediate motive or conduct on the part of the accused driving the deceased to take the extreme step of committing suicide and as such, the ingredients of Section 304-B IPC. are not attracted, as there is absolutely no materials to show that soon before the death, the deceased was subjected to cruelty either by A-1 or by A-2. The learned Counsel for the appellants also pointed out further that even as per the alleged letters, Exs.P-6 and P-7, said to have been written by the deceased to her sister and uncle, there is not a whisper about any alleged demand of dowry made by A-1 or A-2 and there is also no whisper about any alleged ill-treatment on the part of A-1 and A-2. The learned Counsel also brought to the notice of this Court, Exs.D-1 to D-9, the letters said to have been written by the deceased to her sister and uncle, by placing reliance on them and even as per those letters, the allegation of demand of dowry or cruel treatment is not made out. It is further submitted by the learned Counsel for the appellants, in particular, that as per the letter, Ex.D-4, said to have been written by the deceased to her sister, the deceased specifically mentioned that in the event of her committing suicide, the accused are not at all responsible. It is further submitted by the learned Counsel for the appellants that P.W.2, the father of the deceased, admitted in cross-examination that earlier his sons were also said to have committed suicide and therefore, there is a tendency of committing suicide in the family of the deceased.

11. Mr. P. Kumaresan, learned Additional Public Prosecutor, contended that the prosecution has adduced clear and acceptable evidence to make out a case against the accused. It is also submitted by the learned Additional Public Prosecutor that the evidence of P.Ws.2 to 5 shows that the deceased frequently informed them about the alleged ill-treatment of A-1 and A-2 and also informed them about the alleged demand of Rs. 10,000/- for setting up a separate family and also the demand of one sovereign jewellery by A-1 and A-2. It is also submitted by the learned Additional Public Prosecutor that the letters, Exs.P-6 and P-7, written by the deceased also disclose the mental condition of the deceased and those letters clearly show that the deceased was not happy in the matrimonial home due to the conduct of A-1 and A-2. It is also submitted by the learned Additional Public Prosecutor that there is absolutely no motive for these witnesses, P.Ws.2 to 5, to implicate A-1 and A-2 falsely in this case. It is also submitted by the learned Additional Public Prosecutor that the evidence of P.Ws.2 to 5 are consistent and there is absolutely no contradictions in the material particulars. Therefore, the learned Additional Public Prosecutor submitted that the learned trial Judge has convicted the accused rightly and there is absolutely no infirmity in the judgment of the learned trial Judge warranting interference of this Court.

12. I have given my careful and anxious consideration to the rival contentions put forward by either side.

13. This is an unfortunate case, wherein the deceased said to have committed suicide within two years of her marriage with A-1, viz., on 26.10.1994. As per the prosecution, the occurrence is said to have taken place on 3.11.1996. The prosecution strongly placed reliance on the evidence of P.Ws.2 to 5 and also the alleged letters, viz., Exs.P-6 and P-7, said to have been written by the deceased to her sister and uncle. The learned Counsel for the appellants took this Court meticulously through the evidence adduced by the prosecution through P.Ws.2 to 5. A perusal of the evidence of P.Ws.2 to 5 clearly shows that the prosecution has not come forward with any definite version regarding the allegation of cruel treatment and demand of dowry. The entire evidence of P.Ws.2 to 5 discloses that they have no direct knowledge about the alleged demand of dowry or cruel treatment meted out by the deceased at the hands of A-1 and A-2 and the whole case of the prosecution rests on the information said to have been given by the deceased to those witnesses, viz., P.Ws.2 to 5.

14. It is also relevant to be considered at this stage that P.Ws.2 and 3 are the parents, P.W.4 is the sister and P.W.5 is the brother of the deceased and therefore, all of them are related and interested witnesses. It is well settled that there is no bar in relying such witnesses and only in respect of those witnesses, the Court should take great care and caution by scrutinising their evidence. It is also relevant to be noted that none of the witnesses, among P.Ws.2 to 5, including the parents, P.Ws.2 and 3, questioned A-1 and A-2 about their alleged conduct of treating the deceased cruelly and also the demand of dowry at any point of time. It is needless to state that the normal and prudent conduct of any person, much less a person, who is so closely related to the deceased, is only to question the conduct of the accused and admittedly none of the witnesses questioned the conduct of the accused at any point of time. They have simply stated that the deceased only informed them about the alleged cruel treatment and demand of dowry made by the accused to them. It is also disclosed through the evidence of P.W.2 that the marriage was arranged by one Janakiraman and he only knows the full particulars about the discussion took place at the time of marriage. But the prosecution, for the reasons best known, has not chosen to examine the said Janakiraman and I am of the considered view that the non examination of the said Janakiraman is fatal to the prosecution case. It is also pertinent to be noted that in order to show that A-1 and A-2 demanded the jewellery and cash and also the other allegation of cruel treatment, none of them have given any report to the police earlier to the date of occurrence which raised serious doubts about the veracity of the prosecution case. One more aspect to be borne in mind by this Court is the admission made by P.W.3, mother of the deceased, in the cross-examination, that one day prior to the date of occurrence that the deceased went for medical examination at a private hospital at Villupuram and both the deceased and A-1 were living happily.

15. The Honourable Supreme Court of India, in Kamesh Panjiyar v. State of Bihar 2005-2-L.W.(Crl.) Page 794, held that determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. But, however, the Honourable Supreme Court indicated in the decision stated supra that ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. The Honourable Supreme Court, in that decision, has further held as follows:

15. A conjoint reading of Section 113B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of Evidence Act. The expression ‘soon before her death’ used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

16. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to be taken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence. Under Section 304B it is ‘dowry death’ that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and Ors. v. The State of Andhra Pradesh . Period of operation of Section 113B of the

Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

In the very same decision, the Honourable Supreme Court also laid down the essential ingredients as contemplated to attract Section 304-B IPC. as follows:

12. In order to attract application of Section 304-B IPC., the essential ingredients are as follows:

1. The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

2. Such a death should have occurred within seven years of her marriage.

3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

4. Such cruelty or harassment should be for or in connection with demand of dowry.

5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

16. Therefore, in view of the above well settled principle of law laid down by the Apex Court in respect of the case under Section 304-B IPC., the prosecution is bound to prove the existence of a proximate and live-link between the effects of cruelty based on dowry demand and the concerned death.

17. The evidence of P.W.3, mother of the deceased, clearly shows that three months prior to the occurrence, the deceased came to her parental home and during the said period of three months, there is absolutely no complaint whatsoever, as the deceased has not visited the house of P.Ws.2 and 3 and therefore, it is crystal clear that there is absolutely no materials available on record to the effect that soon before her death, the deceased was subjected to cruel treatment, which drove her to take the extreme step of putting an end to her life. Added to this serious infirmity in the case, the other materials available on record through the letters, Exs.P-6 and P-7, said to have been written by the deceased to her sister and uncle, also clearly show that there is absolutely no allegation neither for the demand of dowry nor for the cruel treatment on the part of A-1 and A-2. Further, it is relevant to be noted that as per the letter, Ex.D-4, said to have been written by the deceased to her sister, there is a specific mention by the deceased to the effect that in the event of her committing suicide, the accused are not at all responsible. It is also pertinent to be noted that as per the admission of P.W.2, the father of the deceased, in his cross-examination, that earlier his sons were also said to have committed suicide and therefore, there is a tendency of committing suicide in the family of the deceased. Therefore, the prosecution case suffers from serious infirmities, inconsistencies and improbabilities rendering the entire prosecution case as false.

18. Therefore, for the reasons stated above, this Court is left with no other alternative except to allow the appeal and to set aside the conviction and sentence imposed upon the appellants by the learned Judge. Accordingly, the appeal is allowed. The conviction and sentence imposed upon the appellant by the learned Assistant Sessions Judge, Panrutti, in S.C. No. 108 of 1997 dated 11.9.1998, are set aside. The bail bonds executed by the appellants shall stand cancelled.

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