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Ganesan vs The State on 17 July, 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 17.07.2018

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.A.No.256 of 2008

1.Ganesan
2.Deivanai … Appellants

Vs

The State,
Rep. by the Deputy Superintendent of Police,
Omalur,
Salem District.
(Crime No.293 of 2003) … Respondent

Prayer : Criminal Appeal filed under Sections 374 (2) of Criminal Procedure Code, to set aside the conviction judgment dated 24.03.2008 made in S.C.No.13 of 2006 passed by the learned Sessions Judge, Mahila Court, Omalur, Salem.
For Appellant : Mr.A.Nagarathinam

For Respondents : Mr.R.Ravichandran,
Government Advocate (Crl.Side)

J U D G M E N T

This appeal is directed as against the judgment dated 24.03.2008 made in S.C.No.13 of 2006 on the file of the learned Sessions Judge, Mahila Court, Omalur, thereby convicting the appellants/accused 1 and 2 for the offences under Section 498(A), 304(B) and 306 of IPC and sentencing each of them to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/- each, in default of payment of fine to undergo Rigorous Imprisonment for three months for the offence under Section 498(A) of IPC, to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/- each, in default of payment of fine to undergo Rigorous Imprisonment for three months for the offence under Section 306 of IPC, and to undergo Rigorous Imprisonment for seven years each, for the offence under Section 304(B) of IPC.

2. The case of the prosecution is that P.W.2, the father of the deceased had given her daughter to the first accused in marriage on 13.11.2000 and also presented 10 sovereign jewels and Rs.10,000/- cash along with household articles worth about Rs.1,00,000/-. The first accused and the deceased were living in the matrimonial home and after six months the first accused further demanded 5 sovereign of gold and Rs.10,000/- cash as dowry. Thereafter, there was quarrel between them and after panchayat she was left in the matrimonial home. Even then, she was thrown out to the parental house before six months from the date of her death. On 29.05.2003, the deceased went to the first accused house and due to dowry harassment and cruelty committed by the accused, she fell into the pond and committed suicide on 30.05.2003.

3. Therefore, P.W.2 lodged a complaint Ex.P1 on 31.05.2003, before the respondent police. In the mean while, on 30.05.2003, P.W.1, the Village Administrative Officer on the information, found the body of the deceased in the pond and lodged a complaint to the respondent police station and on receipt of the same the respondent registered the case under Section 174 of Cr.P.C. On the complaint of P.W.2 the case has been altered for the offence under Sections 306, 498(A) and 304(B) of IPC against five accused persons. After examining the witnesses, the respondent filed charge sheet for the above said offences. The accused denied the same and claimed the trial.

4. The prosecution has examined P.W.1 to P.W.10, marked Exs.P1 to P17 and produced M.Os.1 to 3, to bring home the charges. The defence also examined D.W.1 to D.W.3 as their witnesses.

5. P.W.1, the Village Administrative Officer was informed that a female body was found in the Tharamangalam Kailasanathar Theppakulam and found the dead body of the deceased and lodged a complaint before P.W.9, the Sub-Inspector of Police. The said complaint was registered in Crime No.293 of 2003 under Section 174 of the Criminal Procedure Code. F.I.R. as Ex.P.13. The dead body was recovered and kept in the mortuary of the Salem Government Hospital, since the identity of the dead body was not known and as such, advertisement was given by the police in television to identify the dead body. After seeing the dead body in the television, P.W.2, the father of the victim identified the dead body and lodged a complaint on 31.05.2003 and on such complaint the respondent altered the offence into 304(B), 498(A) and 306 of IPC. P.W.2, the father of the deceased deposed that during the marriage 10 sovereign gold and Rs.10,000/- and household articles about worth Rs.1,00,000/- were presented to the first accused. After six months, again the first accused demanded jewels and cash and as such she was thrown out to her parental house. On 29.05.2003, again she went to the first accused house. On 31.05.2003, after seeing television, he found daughter died.

6. P.W.3, the mother of the deceased reiterated the same as that of P.W.2. Further, deposed that when the first accused demanded dowry from the deceased, there existed a fight between the first accused and he had beat the deceased and P.W.3 had witnessed the said occurrence and as such there was a dowry demand and only because of dowry harassment her daughter committed suicide by falling into the pond.

7. The Doctor was examined as P.W.6 and he deposed that he conducted the postmortem of deceased dead body on 01.06.2003 at 1.30 p.m. and concluded that the deceased died due to drowning in the water. The postmortem certificate is marked as Ex.P7 and Chemical Analysis report is marked as Ex.P8.

8. P.W.7, the Revenue Divisional Officer conducted the enquiry and submitted his report marked as Ex.P.11. He concluded that the death of the deceased was not due to dowry harassment and there was no complaint regards the dowry harassment against the accused. The deceased committed suicide for the reason that the first accused and deceased were living separately.

9. P.W.9, the Sub-Inspector of Police on receiving the complaint from P.W.1 the Village Administrative Officer, registered in Crime No.293 of 2003 on 174 of Cr.P.C. The said F.I.R marked as Ex.P.13. P.W.10 as per the complaint lodged by P.W.2 on 31.05.2003, filed the Altered Report by altering the offence from 174 of Cr.P.C to one under Section 304(B) of IPC and examined all the witnesses and filed charge sheet for the offences under Section 498(A), 306, 304(B) of IPC.

10. The defence side examined D.W.1 to D.W.3. D.W.1 is a relative of D.W.2 deposed that after the marriage between the first accused and the deceased, the deceased had cyst in the ovaries and uterus and as such, she was admitted in the Salem Neelambal hospital and had undergone treatment. The entire expenses was borne by the first accused and advised them not to have any sexual inter-course. Further, he deposed that thereafter there is no possibility of giving birth to child. Therefore, the deceased was taken by her parents to the parental house. Further he deposed that there was no dowry demand and the first accused had not harassed or committed cruelty against the deceased. D.W.2 and D.W.3 also reiterated the same.

11. The defence did not mark any exhibits and documents on their side. After examining they incriminating materials were put to the accused under Section 313 of IPC. They denied the same as false also. Having considered the above evidence and materials, the Trial Court found them guilty under all the charges and accordingly sentenced them. That is how, the appellants are now before this Court with this Criminal Appeal.

12. Heard the arguments advanced by Mr.A.Nagarathinam, learned counsel appearing for the appellants and Mr.R.Ravichandran, learned Government Advocate (Criminal Side) appearing for the State and perused the materials placed before this Court.

13. The learned counsel for the appellant submitted that the second appellant Mrs.Deivanai, W/o.Chinraj @ Kandasamy died on 10.03.2018. Therefore, the appeal is dismissed as abated as against the second appellant/second accused.

14. The learned counsel for the appellants submitted that except the evidence of P.W.2 and P.W.3, there is no other evidence to corroborate the evidence of P.W.2 and P.W.3 with regard to the allegations of demand of dowry harassment and cruelty to the deceased. Even P.W.2 did not lodge any complaint and the complaint was given by the relatives and therefore the entire allegations of dowry harassment are after thought and not corroborated by any independent witness. Further, he submitted that the deceased went to the first accused house on 29.05.2003 and her body was found dead in the Tharamangalam Kailasanathar Theppakulam on 30.05.2003. Only on seeing the television, P.W.2 found that the daughter died and lodged a complaint. The deceased before her death, she was staying in the parental house for the past one year and as such, there is absolutely no chance for demand of dowry and harassment by the accused. So far as, the offences under Section 306 of IPC is concerned, there is absolutely no evidence to show that the deceased was harassed soon before her death by demanding dowry and prosecution failed to prove the entire case and prayed for acquittal.

15. The learned Government Advocate (Criminal Side) appearing on behalf of the respondent submitted that P.W.2, the father of the deceased had categorically deposed that there was dowry demand immediately after marriage by the accused. The deceased was thrown out from the matrimonial home by demanding dowry and harassment made by the accused. Even though, P.W.7 Revenue Divisional Officer concluded that the death was not due to dowry demand and harassment, there is a clinching evidence to prove the charge of demand of dowry under Section 498A of IPC. The evidence of P.W.2 is also corroborated by P.W.3 is the mother of the deceased. Therefore, he prayed for confirming the conviction and sentence passed by the Trial Court.

16. A perusal of the evidence of P.W.2, the father of the deceased would disclose that the deceased went to accused house on 29.05.2003 and thereafter, he found the body of the deceased on 31.05.2003 through television. In the mean time, there is no evidence to show that there was harassment regarding demand of dowry by the accused and that too, harassment and cruelty soon before her death. Even though, there is an evidence for demand of dowry and harassment after the marriage, it is not at all corroborated by any other witness. The evidence of P.W.2 is very clear that he did not lodge any complaint for any dowry demand and harassment by the accused.

16(a). In the cross examination of P.W.2 deposed as follows :

ehd; nghyPrhh; tprhuizapy; rurh brhy;ypj;jhd; vdf;F jfty; bjhpa[k; vd;w tptuk; brhd;ndd;/ fhty; epiyaj;jpw;F mUfpy; vd;Dila cwtpdh; xUth; g[fhiu vGjp ilg; moj;J bfhz;L te;jhh;/ vdf;F vGjg; gof;fj; bjhpahJ/ ilg; moj;j fhfpjj;jpy; vd;d ,Ue;jJ vd;w tptuk; vdf;F bjhpahJ/ ilg; moj;Jf; bfhz;L te;jth; mjpy; ifbahg;gk; nghltpy;iy/ fhty; epiyaj;jpy; jfty; brhd;ndd;/ nghyPrhh; mij vGjp ilg; moj;Jf; bfhz;l th vd;W Twpdhh;fs;/ mijjhd; vd; cwtpdh; ilg; moj;J bfhz;L te;jhh;

16(b). Therefore, entire allegations are after thought and as such, the evidence of P.W.2 does not help the case of prosecution to prove the charges.

17. P.W.6, the Doctor, who conducted postmortem on the body of the deceased deposed that the death caused due to drowning. His evidence reads as follows:

1. ,it ,Ue;Jk; gpnujk; 30/05/2003 md;nw Fsph;rhjd miwapy; itf;fg;gl;oUe;jjhy; kuzk; Vw;gl;l neuj;ij epr;rakhf eph;zapf;f Koatpy;iy/ gpnujj;jpd; kPJk; ve;j ghfj;jpYk; btspf; fha’;fnsh. cs;fha’;fnsh fhzg;gltpy;iy/ tpuy; ef’;fSf;F moapy; jirfs; fUePy epwj;jpy; fhzg;gl;ld/

2. cly; cs; cWg;g[fspy; er;Rg; bghUs; vJt[k; fhzg;gltpy;iy vd;w fUj;jpid goj;jgpd;. kuzj;jpw;Fhpa ,Wjp fUj;jpid fPH;f;fz;lthW eh’;fs; mspj;Js;nshk;/ ,we;jth; ePhpy; K:H;fpajhy; mtUf;F Vw;gl;l Rthrj;jilapdhy; ,we;Js;shh; vd;W eh’;fs; fUj;J tH’;fpa[s;nshk;/ gpnuj ghpnrhjid mwpf;if m/rh/M/7 ,urhadg; ghpnrhjid mwpf;if vdJ ,Wjpf; fUj;Jld; ToaJ m/rh/M/8/

18. P.W.8, the Revenue Divisional Officer categorically deposed that the death was not due to dowry harassment. His evidence reads as follows :

,we;Jnghd bgz;Df;Fk;. mtuJ fztUf;Fk; ,uz;liu tUl’;fSf;F Kd;g[ bgw;nwhh;f;s rk;kjj;Jld; eilbgw;wJ vd;Wk;. nkw;go ,wg;g[ tujl;riz bfhLik fhuzkhf Vw;gl;l ,wg;g[ my;y vd;W ,Wjp fUj;J bjhptpj;J. ,J fztd; kidtpf;fpilna Vw;gl;l rz;il fhuzk; vdt[k;. gphpe;J thH;e;jjpdhy; kdKile;J jw;bfhiy bra;J bfhz;Ls;shh; vd;W fUj;J bjhptpj;J ePjpkd;w eLth; vz;/2 nkl;L:Uf;F mDg;gp itj;njd;/

18(a) His report marked as P.W.11. which reads as follows :

mth;fSf;F FHe;ijfs; ,y;iybad;Wk; jpUkzk; Koe;J xd;wiu tUlk; fHpj;J ,we;J nghdtiu mtuJ bgw;nwhh;fs; j’;fs; tPl;ow;F miHj;Jr; brd;W tpl;ldh; vd;Wk; ,e;epiyapy; fle;j 31/05/2003 md;W ,we;J nghdth; jhuk’;fyk; bjg;gf;Fsj;jpy; ,we;J fple;jhh; vd;Wk; nkw;go ,wg;g[ tujl;riz bfhLik fhuzkhf Vw;gl;l ,wg;gy;y vd;Wk; ,we;J nghdthpd; fzth; kPJ ,Jtiu ve;jtpjkhd tujl;riz bfhLik g[fhUk; gjpt[ bra;ag;gl tpy;iy vd;Wk; fztd; kidtp ,UtUk; fle;j xU tUl fhykhf gphpe;J thH;e;j epiyapy; ,we;J nghdth; kdKile;J jw;bfhiy bra;jpUf;fyhk; vd;Wk; tprhuizapy; bjhpa tUfpwJ/ vdnt ,J tujl;riz bfhLik fhuzkhf Vw;gl;l ,wg;gy;y vd ,k;kd;wk; fUJfpwJ/
Therefore, P.W.11, the Revenue Divisional Officer report also does not support the case of the prosecution.

19. Further, the learned counsel for the appellant relied the judgment reported in (2013) 3 MLJ (Crl) 266 [V.Periyasamy and others Vs. State] held as follows :

8. We have considered the above submissions. Of course, it is true that the family members of the deceased have stated, on three occasions, tha the accused 2 to 4 demanded dowry and forced the deceased out of the matrimonial home. This evidence is very general and the evidence, on this aspect, is very vague in nature. They have not stated that as to when, where and under what circumstances, such demand was made, that too, by which accused and what was the demand.

9. Per contra, as rightly pointed out by the learned Senior Counsel for the appellants, according to the evidence of P.W.10, the deceased made a complaint on 22.03.2006 alleging that her husband, the first accused, had left for Chennai, on account of his job, leaving he in the company of the accused 2 to 4. But, in the absence of the first accused, the accused 2 to 4 developed quarrel with her and forced her out of the matrimonial home. On these allegations, she wanted action to be taken against these accused. The matter was compromised between the parties in the Police Station, in which the deceased gave a statement under Exhibit P-5. In the said statement, she did not whisper anything about either the dowry demand made by the accused or the consequential harassment. In Exhibit P-5, she has stated that in the absence of her husband, the accused 2 to 4 did not take care of the deceased and did not provide for and basic amenities. Except this allegation, she had not stated anything against the accused. In the said statement, she has further stated that the first accused, by way of compromise, had agreed to pay a sum of Rs.500/- per month towards her maintenance and her child, out of his monthly salary of Rs.1,000/-. Therefore, she wanted no further action against the accused. In the said compromise, the first accused gave a statement under Exhibit P-6, where also, the same is reiterated. Exhibit P-7 is the closer report made by P.W.10, where also P.W.10 has also reiterated the same.

10. From the above documents, it is crystal clear that there is no whisper about any dowry demand or the confirming harassment made by any of the accused. Had it been true that the deceased was subjected to cruelty and dowry demand in terms of Section 498(A) of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961, certainly, the deceased would have made a mention about the same either in the complaint or in the statement made during talks in the Police Station. The very fact that she did not say anything about the cruelty or dowry demand, would go to clearly establish that what is now stated by the family members of the deceased is only an afterthought and the same cannot be believed.

20. It is seen from the above evidence and materials produced by the prosecution that there is no dowry demand or the consequential harassment made by the accused. In respect of the dowry demand or harassment there is absolutely no complaint so far before the death of the deceased. As such the present allegations as evidenced in the evidence of P.W.2 and P.W.3 are only afterthought and the same cannot be believed. This Court perused the documents produced by the learned counsel for the appellants and he rightly pointed out that there is no evidence against the accused to show that there was either dowry demand or the consequential harassment much less the consequential harassment soon before the death of the deceased. Thus, there is no evidence available on record against the accused to sustain the conviction.

21. In view of the above discussion, the Criminal Appeal is allowed and the conviction and sentence dated 24.03.2008 made in S.C.No.13 of 2006 on the file of the Sessions Judge, Mahila Court, Omalur are set aside. Fine amount, if any, paid shall be refunded to the appellants forthwith. Bail ponds, if any, executed shall stand discharged.

17.07.2018

Index : Yes/No

Internet : Yes/No

Speaking order/non-speaking order

LPP

G.K.ILANTHIRAIYAN, J.

LPP

1. The Sessions Judge,
Mahila Court, Omalur,
Salem District.

2. The Inspector of Police,
Tharamangalam Police Station,
Salem District.

3. The Public Prosecutor,
High Court, Madras.

Crl.A.No.256 of 2008

17.07.2018

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