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B.Ramamurthi-vs-The Assistant Commissioner Of on 3 November, 2009

Madras High Court B.Ramamurthi-vs-The Assistant Commissioner Of on 3 November, 2009

DATED: 03.11.2009

CORAM:

THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

Crl.A.No.1528/2002

1.B.Ramamurthi

2.Andal Appellants

Vs

The Assistant Commissioner of Police

Washermenpet Range, Chennai-21 Respondent

Prayer:- This Criminal Appeal is filed against the conviction and sentence imposed against the Appellants by the learned Judge of Mahalir Neethimandram, Chennai-104 dated 21.10.2002 in SC.No.113/1999 for an offence under Section 498A of IPC.

For Appellant : Mr.T.S.N.Prabhakaran

For Respondent : Mr.Hasan Mohammed Jinnah, APP

ORDER

This criminal appeal is directed against the judgement of the learned Sessions Judge, Mahalir Neethimandaram passed in SC.NO.113/1999 dated 21.10.2002, convicting and sentencing the Appellants under Section 498A of IPC and to undergo three years Rigorous Imprisonment each and to pay a fine of Rs.2000/- each, in default to undergo three months Rigorous Imprisonment, however acquitting them from charges under Section 304B of IPC.

2. The brief facts, which are necessary for the disposal of this Criminal Appeal, are recapitulated as under:-

The 1st accused is the husband of the deceased Sugandhi and the 2nd accused is the mother-in-law. PW.1, Meenambigai is the mother of the deceased and the deceased was born to one Sadagopan and Meenambigai. The marriage between the deceased and the 1st accused took place on 12.6.1995 and the accused demanded 10 sovereigns of jewels at the time of marriage, but PW.1 was able to give only 7 sovereigns of jewels, since the Binny Mill, where her husband was working at the time of the marriage of the deceased was under lock out. The 1st accused and Sugandhi lived together as husband and wife along with the 2nd accused for about 6 months happily. Afterwards, at the instigation of the 2nd accused, the 1st accused started demanding three sovereigns of jewels from the deceased.

3. Whenever PW.1 visited the house of the deceased, she used to complain that the accused are demanding three sovereigns of jewels and they subjected her to cruelty on that account. The deceased delivered a male child on 31.5.1996. Since PW.1 did not give the balance of three sovereigns of jewels, Seemandam function was not informed to PW.1 and she was not permitted to see the child. The deceased was also not permitted to go to her parents’ house for delivery. On 5.10.1996, the 1st accused sent away the deceased from his house retaining the child with him, which necessitated the deceased to prefer a complaint to the Women Police Station on 5.10.1996. Subsequent to the complaint, there was a panchayat at the instance of the 1st accused and the deceased was taken to the house of the 1st accused.

4. On 31.12.1996, the deceased was beaten by 1st accused and her sister by name Hemapriya, who came to see the deceased, on the said date, was also beaten by the 1st accused. On 10.1.1997 also there was a complaint by the deceased to PW.1 that she was beaten by the 1st accused. PW.1 gave treatment to the deceased and left her in the house of the 1st accused. On the next day, there was a telephone message informing PW.1 that the deceased had been admitted at Priya Hospital due to burn injuries. The deceased was admitted in KMC Hospital on 11.11997 at 11.00 a.m. and when she was examined by PW.9 Doctor Angeline Selvaraj, he found that the deceased was conscious and had given a statement to the Doctor that she poured kerosene to herself and set fire and thereby attempted to commit suicide. She succumbed to injury on 14.1.1997 at 9.30 a.m. and Ex.P6 is the death intimation.

5. Pw.1 preferred a complaint Ex.P1 to the Sub Inspector of Police, Vannarapettai Police Station and on receipt such complaint, he registered a case in Cr.No.69/97 under Section 498A and 304B of IPC and prepared Ex.P11 printed FIR. Based upon the FIR, PW.14 the Assistant Commissioner of Police took up the case for investigation, visited the place of occurrence and prepared observation mahazar Ex.P3 and a rough plan Ex.P12. He also prepared a seizure mahazar Ex.P2 and he recovered a white cane measuring 3 litres and also a match box and examined the witnesses and recorded their statements.

6. PW.11, Jagadeeswari, who was working as Personal Assistant to the Chennai District Collector sent a request to the Tahsildar and pursuant to it, PW.8, Palanisamy, Tahsildar of Tondiarpet conducted inquest over the dead body of the deceased and submitted his report Ex.P5, stating that there was no demand of dowry in the death of the deceased and in the said report it was mentioned that the accused was not examined during inquest. Therefore, the Personal Assistant to the District Collector summoned A1 and examined him and after recording the statement, she filed a report alleging that there was no cruelty on account of dowry demand and the death was not due to dowry harassment. The statement of A1 is Ex.P10 and the report submitted to the Assistant Commissioner of Police is Ex.P8.

7. In continuation of the investigation, the investigating officer recorded the statement of Pw.7 Vasanthakumari, who registered the complaint given by the deceased while she was alive to Kothaval Chavadi Police Station and the said complaint is Ex.P10. PW.14 arrested the accused persons and sent them for remand. He also filed a report against the accused persons on 14.4.1998.

8. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they denied it as false. The 1st accused was permitted to examine himself as DW.1 on the defence side and that apart, he has examined two other witnesses.

9. The trial court, after hearing the arguments advanced on either side and looking into the materials available on record, imposed conviction and sentence as stated above, which is challenged in this Criminal Appeal.

10. The defence was that the marriage expense was borne out only by the 1st accused and the marital life between them was very good till the birth of the child and the mother of the deceased used to take the deceased and the child to their home very often and the sister of the deceased also used to come to the house of the accused frequently and stay there. One day prior to the occurrence, the deceased and her child were taken to a Samiyar by giving a false representation to the 1st accused that they were taken to the Hospital and despite the protest made by the 1st accused, the deceased wanted to go and meet the Samiyar. When the 1st accused refused, a wordy quarrel arose between them and the deceased had told him that her parents are more important than him. She had said that even if the accused dies, it would not be a matter to her, which made the 1st accused to consume pesticide. The accused heard the sound of the deceased and on coming out of the room, he found that the deceased was burning and immediately tried to put off the flame. At that time, the tenant Sundarajan came to the rescue of the deceased and both the deceased and the 1st accused were admitted to Priya Nursing Home and subsequently at KMC Hospital. The 1st accused took treatment from 13.1.1997 to 20.1.1997 at Amrith Hospital. Discharge summary issued to A1 at KMC Hospital is Ex.D1. The male child is under the care and custody of the 1st accused. The expenses for Seemandam function and subsequent delivery was borne only by the 1st accused and the medical report given to the deceased at the time of delivery is Ex.P2 and the receipt showing the expenditure is Ex.D3.

11. The learned Sessions Judge acquitted the accused for the offences under Section 304B, however found them guilty under Section 498A of IPC. The court below has found that the evidence borne out from PW.1 and PW.3 showed that the deceased was not permitted to take the child to her parents’ house and the deceased was also denied the enjoyment of visiting her daughter as they pleased. The court below has observed as follows:- "There may be cases where the parents are not permitted to visit the in-law’s house, when the parents cause unreasonable interference in the marital life of their daughter. No such allegation is made against the parents of Suganthi. Therefore, it is not known on what ground the accused persons objected the visit of Suganthi’s parents to her marital house. Therefore, the unreasonal refusal to permit the visit of mother and sister also amount to ‘mental cruelty’.

12. The court below has overlooked the evidence of the 1st accused who examined himself as DW.1 and stated that on the previous day, under the guise of taking the deceased and her child to a hospital, the parents of the deceased had taken them to a Samiyar and on the next day also, the deceased wanted to go to the said Samiyar, which was objected to by the 1st accused, but the deceased was very adament and told him that she wants only her parents and she will not mind, even if her husband dies. This provoked the 1st accused and he consumed poison and on seeing it, she poured kerosene and set fire to herself. He extinguished the fire and took her to the hospital with the help of the tenant.

13. This portion of the evidence of DW.1 was not contradicted by the Prosecution, while he was subjected to cross examination and there is not even a suggestion that such a thing never happened. It is only suggested that he enacted a drama as though he consumed poison. The medical receipt Ex.D1 issued in KMC Hospital and the evidence of DW.2 Doctor would show that he was admitted and given treatment for consumption of poison. Even as per the Prosecution evidence, the accused and the deceased were living happily and only at the intervention of her parents and sister, in her marital life after the birth of the child, the trouble has started. Therefore, it cannot be said that the conduct of the 1st accused in refusing permission was unreasonable and amounted to cruelty.

14. The Trial Court has referred to the testimony of PW.3 as disclosing that the deceased was beaten by the 1st accused for using the utensils given by her mother. The circumstance under which the said quarrel had occurred is spoken to by PW.3 that her parents had given cooking utensils to the deceased, but the 1st accused refused to have those utensils saying that the deceased was not willing to eat the food cooked by his mother.

15. The word cruelty could be gathered from the language as found in Section 498A of IPC and as per that section, ‘cruelty’ means any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or damage to life etc. It is revealed from PW.3’s evidence that the deceased did not want to eat the food cooked by her mother in law and wanted to cook separately which was disliked by A1 and had beaten her. Whether these acts would be sufficient to substantiate the Prosecution case that the deceased was meted out with ill-treatment to attract an offence under Section 498A of IPC has to be seen.

16. The evidence only showed that the deceased underwent mental sufferings and unhappiness largely due to the dislike and hatred that her husband had against her parents more particularly her mother who has married to PW.4 Mannarsamy who is already married and not because of any ill-treatment by the accused husband and his mother. Like wise, there is no specific evidence of cruelty or harassment. Perhaps the deceased was of unstable mind and low tolerance and usual domestic friction drove her to commit suicide.

17. Another significant factor in this case is that though she was alive for three days, no dying declaration was recorded and no efforts were taken by the investigating officer to record the dying declaration. In fact, the complaint had been given only after the deceased died of the injuries in the hospital and there is no explanation for the unreasonable delay.

18. The term cruelty has been given a definite meaning in Section 498A of IPC under two heads. Under first clause, cruelty cannot be held to have been committed only on the ground that the conduct of the accused is willful and is offensively unjust to the woman because it is further necessary that the degree of intensity of such unjust conduct of the accused should be such as is likely to drive the woman to commit suicide or such conduct is likely to cause grave injury or danger to her life or limb or physical health. Stray domestic quarrels, perfunctory abuses by mother in law and uncultured behaviour of the husband towards his wife being mundane matters of normal occurrence in the traditional Hindu Families such conduct cannot constitute ‘cruelty’, unless such acts of conduct singly or cumulatively are found to be of such formidable and compelling nature as may lead to the commission of suicide.

19. In this case, on the basis of stray incident that the deceased was beaten by her husband for bringing utensils from her parent’s house in order to cook her food separately and not permitting her to visit her parent’s house for some reason, the accused cannot be held guilty under Section 498A of IPC. Mens rea is an essential ingredient of the offence under Section 498A of IPC and the objective "willful" qualifying the word ‘conduct’ contemplates obstinate and deliberate behaviour on the part of the accused for it to amount to cruelty, the sole constituent of the offence as such.

20. In this case, the Prosecution evidence is lacking in proving cruelty by the accused as contemplated under Section 498A of IPC and convicting and sentencing the accused under Section 498a of IPC cannot be sustained.

21. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed by the court below dated 21.10.2002 in SC.No.113/1999 on the Appellants are set aside. The Appellants are acquitted of the charges levelled against them. The bail bond if any executed by the appellants shall stand terminated and the fine amount if any paid is ordered to be refunded to them.

Srcm

To:

The Public Prosecutor, High Court,

Madras

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