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M.Mohan-vs-State Of Tamil Nadu By Inspector Of on 23 February, 2010

Madras High Court M.Mohan-vs-State Of Tamil Nadu By Inspector Of on 23 February, 2010

DATED: 23.02.2010

CORAM:

THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

Crl.A.No.785/2002

1.M.Mohan

2.Veerammal Appellants

Vs

State of Tamil Nadu by Inspector of Police

B5, Singanallur Police Station, Coimbatore Respondent

Prayer:- This Criminal Appeal is filed against the judgement dated 15.5.2002 passed in SC.No.19/2002 by the learned Additional Sessions Judge (FTC-III) Coimbatore, convicting and sentencing the appellants for the offence under Section 498A of IPC to undergo two years of Rigorous Imprisonment each and for the offence under Section 306 of IPC to undergo 7 years of Rigorous Imprisonment each and for the offence under Section 304A of IPC to undergo seven years of Rigorous Imprisonment each and for the offence under Section 4 of the Dowry Prohibition Act to undergo one year Rigorous Imprisonment each and ordering the sentences to run concurrently. For Appellant : Mr.B.Kumar, SC

for Ms.M.Christella

For Respondent : Mr.A.Saravanan, GA

JUDGEMENT

This Criminal Appeal is filed against the judgement dated 15.5.2002 passed in SC.No.19/2002 by the learned Additional Sessions Judge (FTC-III) Coimbatore, convicting and sentencing the appellants for the offence under Section 498A of IPC to undergo two years of Rigorous Imprisonment each and for the offence under Section 306 of IPC to undergo 7 years of Rigorous Imprisonment each and for the offence under Section 304A of IPC to undergo seven years of Rigorous Imprisonment each and for the offence under Section 4 of the Dowry Prohibition Act to undergo one year Rigorous Imprisonment each and ordering the sentences to run concurrently.

2. The case of the Prosecution is as follows:-

a. The 1st Appellant/A1 is the husband of the deceased Latha and the 2nd Appellant/A2 is the mother-in-law of the deceased. On 28.8.1998, the marriage between the deceased and A1 took place and the deceased gave birth to a female child and they were residing at Door No.1162, TNHB Colony, Tiruchy Road, Coimbatore. At the time of their marriage, the Appellants demanded a sum of Rs.40,000/- towards marriage expenses and 40 sovereigns of jewels as dowry and the parents of the deceased gave a sum of Rs.40,000 to the Appellants and a sum of Rs.10,000/- was repaid to the parents of the deceased. Thereafter, frequently the Appellants tortured and harassed the deceased by demanding jewels, money, a motor cycle and a house from her parents. Unable to tolerate with the torture and harassment meted out to the deceased, on 27.12.2000 at 1500 hours, she committed suicide by hanging. b. PW.1 Thangavelu, who is a Milk Vendor, is the friend of A1. PW.2 Alagammal and PW.3 Perumal are the mother and father of the deceased. PW.4 Ganesan is the Uncle of the deceased. On 27.12.2000 at 3.00 p.m. PW.1 went to the house of the accused to supply milk and found the sister of A1 knocking the door, which was locked inside and PW.1 brought A1 and they broke open the door and found the bedroom locked inside and broke open the door of the bedroom and found the deceased hanging in the ceiling fan and immediately, they took the deceased to the Sriram Hospital in a Auto and thereafter, she was taken to the Government Hospital, Coimbatore, where she was declared dead after examination. Immediately, the parents of the deceased had come to the hospital after being informed by the neighbours that their daughter had been taken to the Hospital. On receipt of information, PW.11 Inspector of Police attached to the B5 Singanallur Police Station went to the said Hospital and PW.1 gave complaint Ex.P1 to PW.11. On receipt of the complaint Ex.P1, PW.11 registered a case in Cr.No.802/2000 under Section 174 of Code of Criminal Procedure and prepared printed FIR Ex.P6 and sent the copies to the concerned Deputy Superintendent of Police and the concerned Revenue Divisional Officer and other officials. c. On receipt of FIR, PW.12 the Revenue Divisional Officer conducted inquest on the body of the deceased and examined PW.1 to PW.4 and recorded their statements and Ex.P8 is the statement of PW.2 and Ex.P9 is the statement of PW.3 and opined in the Ex.P16 inquest report that the deceased died not due to dowry harassment and PW.12 sent the body of the deceased for post mortem through PW.9 Head Constable attached to the said Police Station. d. PW.10 Dr.Ganadurai attached to the Government Hospital, Coimbatore on 28.12.2000 in receipt of requisition from the said Police Station conducted post mortem on the body of the deceased and opined in the post mortem certificate Ex.P4 that the deceased died of hanging and vicera does not contain any poison.

e. On receipt of FIR, PW.13 the Deputy Superintendent of Police (L&O), Coimbatore took up the case for investigation and on 28.2.2000 at 8.00 a.m. went to the place of occurrence and prepared observation mahazar Ex.P3 and a rough sketch Ex.P18 in the presence of the witnesses Soundararajan and Krishnasamy and took photographs and seized MO.1 rope in the presence of the witnesses and MO.2 and 3 are the negatives and photographs. PW.13 also examined Thangavel, Alagammal, Sasikala, Jeeva, Ganesan, Akbar Basha, Soundararajan and Krishnasamy and recorded their statements and after completing investigation, on 29.12.2000 filed a final report against the accused under Sections 498A, 304B and 306 of IPC and 4 of the Dowry Prohibition Act and sent the express report to the concerned court and arrested the accused on 23.1.2001 and sent them for judicial custody.

3. The case was taken on file in SC.No.19/2002 by the learned Additional Sessions Judge (FTC-III) Coimbatore and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 14 witnesses (PW.1 to PW.14} and also relied on Exs.P1 to P20 and three material objects (Mos.1 to 3).

4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false.

5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.

6. This court heard the submissions of the learned counsel on either side and also perused the material records placed.

7. The deceased Latha was the wife of the Appellant herein. She admittedly committed suicide by hanging on 27.12.2000 in the matrimonial home. They were married on 28.8.1998 and the deceased gave birth to a female child at Coimbatore, where they lived jointly with the 2nd Appellant (mother of the 1st Appellant) in the TNHB Flat at Singanallur. The child was about 1 1/2 years old at the time of the incident. According to the Prosecution and also the evidence adduced through PW.2, the mother, PW.3, the father and PW.4 the uncle of the deceased, there was a demand of a motor cycle even before the marriage and immediately after the marriage and the Appellants demanded one house out of three houses owned by the parents of the deceased to transfer it in the name of the deceased. The evidence also disclosed that at the time of the marriage, the Appellants had taken Rs.40,000/- as loan from the parents of the deceased and repaid only a sum of Rs.10000/- and yet to pay the balance sum. Though in their evidence PW.2 and PW.3 stated that 40 sovereigns of jewels was demanded, but their evidence indicated that the parents of the deceased volunteered to give 17 sovereigns of jewels to their daughter. According to them, on the date of the incident, i.e. on 27.12.2000, the deceased had informed PW.4 over telephone that the Appellants were torturing her and after sometime, they heard the news of commission of suicide by her.

8. It is not in dispute that at the time when the deceased committed suicide, neither the 1st Appellant nor his mother was present in the house. The sister of the 1st Appellant had knocked the door constantly and PW.1 a friend of the 1st Appellant who had come to their house to supply

milk also joined the sister of the 1st Appellant, but when there was no response, he had brought the 1st Appellant from his house who was watching TV, broke open the entrance door and also the bed room door and found the deceased hanging from the ceiling. She was taken to the Hospital, where her death was pronounced. Immediately, thereafter her parents had been informed and they had come to the hospital after being informed by the neighbours that their daughter had been taken to the Hospital.

9. The First Information Report had been lodged by PW.1, the friend of the 1st Appellant. PW.1 has stated that there was no differences or discords between the 1st Appellant and the deceased till her death. His evidence indicated that he is the close friend of the 1st Appellant and was known to their family for more than 7 years. Quite naturally he has supported the Appellants. The allegation against the Appellants was that they demanded a motor cycle and a house and subjected the deceased to harassment.

10. Assailing the judgement of the Trial Court, Mr.B.Kumar, the learned senior counsel for the Appellants vehemently contended that there being no direct evidence regarding the cause of death or circumstances leading to death, particularly in the absence of demand of dowry soon before the death, the Appellants could not be held guilty for the offences with which they were charged. According to the learned senior counsel, in the absence of demand of dowry immediately before the alleged occurrence, no inference or presumption could be drawn against the Appellants and pinpointed to the evidence of PW.4 who is said to have spoken to the deceased over phone immediately before the occurrence that the deceased had only said that there was some problem in her house and though she had spoken twice to him over phone, but she has not spelt out about any act of cruelty or harassment meted out to her in the hands of the Appellants.

11. The learned senior counsel for the Appellants would urge that the Trial Court was not justified in relying on the statements of PW.2 and PW.3 allegedly made by them during the inquest proceedings as substantive evidence and the object of proceedings under Section 174 of Code of Criminal Procedure is merely to ascertain as to whether a person has died under suspicious circumstances or an unnatural death has occurred and if so, what is the apparent cause of the death. Therefore, he would submit that the approach of the Trial Court relying on those statements contained in the inquest report is improper and he would reiterate that those statements are hit by Section 162 of Code of Criminal Procedure. He placed reliance on the decisions of the Honourable Supreme Court rendered in the cases of George and othersVs.State of Kerala and another [AIR-1998-SC-1376],Khujji alis Surendra Tiwari Vs. StateofMP[AIR-1991-SC-1853],Radha Mohan [email protected] Saheb and others Vs. State of UP [AIR-2006-SC-951] and Harkirat Singh Vs. State of Punjab [AIR-1997-SC-3231].

12. On the other hand, Mr.A.Saravanan, the learned Government Advocate supported the judgement of the Trial Court and argued that the court below has properly appreciated the evidence led by the Prosecution and the Prosecution has established her harassment on account of demand of dowry, on which the Trial Court has drawn the legal presumption and held the Appellants guilty of the offence with which they were charged.

13. In the aforementioned contentions and factual backdrop, we have to consider as to whether a case has been made out for conviction of the Appellants under Section 304B of IPC.

14. The essential ingredients of the said offence under Section 304B of IPC are; (1) death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances, (2) such death must have occurred within 7 years of marriage, (iii) soon before her death, she was subjected to cruelty or harassment by her husband or relative of her husband, (iv) such cruelty or harassment must be in connection with the demand of dowry and (v) such cruelty is shown to have meted out to the woman soon before her death.

15. The significant words are "soon before her death". So, it is necessary for the Prosecution to establish that the deceased must have been subjected to cruelty or harassment by her husband or relative of her husband soon before her death. It is now well settled in view of a catena of decisions of the Honourable Supreme Court that what would constitute "soon before her death" depends upon the facts and circumstances of each case.

16. The conduct of the family members of the deceased in the aforementioned backdrop assumes importance. They did not make any complaint themselves. It was PW.1 who had lodged the FIR. Only before the Revenue Divisional Officer, for the first time some statements had been made by PW.2 and PW.3. It is to be noticed that the members of the Panchayat did not state anything about the cause of death. In fact, their statements only indicated that it is not dowry death.

17. It transpires from the evidence of PW.2 and PW.3 that at the time of marriage, the Appellants demanded a sum of Rs.40000/- for marriage expenses as loan and PW.2 and PW.3 paid the said sum, borrowing the same on interest. It is admitted by them, out of the said sum, Rs.10000/- had been repaid by the Appellants. Their evidence would indicate that after some time, they demanded for a motor cycle and the same was informed to them by their daughter. PW.3 would state that the demand of a motor cycle was made even before the marriage and they assured them that they would get it after the marriage. According to him, immediately after the marriage, they renewed the said demand. The next allegation is that the Appellants made a demand of a house owned by PW.2 and PW.3 through the deceased and PW.2 and PW.3 told the deceased that they would give the house property only after their life time. Their evidence clearly indicated that the above mentioned two demands were made before the birth of the child. So it is evident clearly that the demand of motor cycle and the house property were made immediately after the marriage and there is no allegation of any demand after the birth of the child.

18. PW.2 and PW.3’s evidence would disclose that the "Valaikappu" function was held in the house of the Appellants and except PW.2, none of those relatives from the deceased side attended the said function. It is seen that three months after the delivery, she had been brought back to the matrimonial home from her parental home. PW.2 admitted that she does not know as to where the 1st Appellant and her daughter lived and the aforesaid evidence clearly indicated that she had not visited her daughter except on the date of Valaikappu. So, even according to the Prosecution, there was a demand for a motor cycle and a house property immediately after the marriage, but there is no evidence to show that the demand persisted till her death.

19. PW.2 and PW.3 have stated that the deceased had informed her uncle PW.4 on the date of occurrence i.e. on 27.12.2000 that she was harassed by the Appellants, but PW.4 did not support their version. PW.4 only deposed that the deceased had spoken to him over phone from a public booth and told him that there was some problem. He had stated that at the first time, the call got disconnected and after few minutes again, she called him and repeated that there was some problem in her house. She has not stated to him what was the problem, what was the cause for the problem and whether she was harassed by her husband and mother-in-law. His evidence is silent about the above said facts and his evidence clearly indicated that the deceased had not spelt out the details of the problem. Hence, the version of PW.2 and PW.3 that her daughter was harassed by the Appellants on the date of commission of suicide cannot be relied upon, as it is not supported by PW.4.

20. At this juncture, it is relevant to refer to the statement made by the 2nd Appellant to PW.12 the Revenue Divisional Officer during enquiry that the deceased used to beat the child and when the same was questioned by her, the deceased replied that it is her child and she cannot be questioned by the 2nd Appellant. According to her version, even on the date of the occurrence, she had beaten her child and the 2nd Appellant chided her for beating the child and it resulted in exchange of words between them. Considering the evidence of PW.4 that the deceased did not tell him as to what was the problem and in the light of statement made by the 2nd Appellant before the Revenue Divisional Officer, the only inference that could be drawn is that there had been a wordy altercation between the deceased and her mother- in-law in relation to the child being beaten up by the deceased.

21. Except, the above said evidence, there is no other material to show that there was any ill-treatment for demand of dowry soon before her death. If it was a case of misunderstanding between the 2nd Appellant and the deceased, the same would not automatically lead to an inference that the said incident related only to demand of dowry and consequential ill-treatment. The Trial Court had proceeded on the basis that even at the time of her marriage, there was problem regarding demand of dowry, although there was no evidence in this behalf. In relation to dowry death, the circumstances showing the existence of cruelty or harassment to the deceased, though cannot be restricted to a particular instance or period of time, but at the same time, it shall not be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the Prosecution. In the present case, even if it is assumed that there was a demand of motor cycle and a house property, the evidence clearly showed that the said demand had been made long before the death and there is no evidence to show that she was treated with cruelty or harassment with such demand during the period between the birth of the child and till her tragic end. In such circumstances, no presumption could be raised so as to base conviction under Section 304B of IPC.

22. It is relevant to refer to the observation made by the Honourable Supreme Court rendered in the case of Sham Lal Vs. State of Haryana [AIR-1997-SC-1873] that is relied on by the learned senior counsel for the Appellants, wherein the Honourable Supreme Court observed that in the absence of any evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113B of the Evidence Act.

23. The statements of PW.2 and PW.3 made to PW.12 the Revenue Divisional Officer, on which reliance was placed by the Trial Court, which as rightly pointed out by the learned senior counsel for the Appellants placing reliance on various decisions of the Honourable Supreme Court, that cannot be taken as substantive evidence.

24. In all the above decisions, the Honourable Supreme Court has emphasized the point that the statement recorded during the inquest proceedings cannot be taken as substantive evidence, in view of the embargo of Section 162 of Code of Criminal Procedure.

25. It is relevant to refer to the observations made by their Lordships in the decision reported in [AIR-1998-SC-1376] cited supra as under:-

"30. …. It must therefore be said that the approach of the trial court in dealing with the FIR was legally impermissible. We are also surprised to find that the Trial Court disbelieved PW.3 and 4, relying upon the statements contained in the inquest report (E.P8). Statements contained in an inquest report to the extent they relate to what the investigating officer saw and found are admissible but any statement made therein on the basis of what he heard from others would be hit by S.162 of Code of Criminal Procedure.

31. The whole purpose of preparing an inquest report under Section 174(1) Cr.PC is to investigating officer into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating in what manner, or by what weapon or instrument, if any, such wounds appear to have been inflicted. In other words, for the purpose of holding the inquest it is neither necessary nor obligatory on the part of the investigating officer to investigating officer into or ascertain who were the persons responsible for the death. In dealing with S.174, Cr.PC in Podda Narayana Vs. State of AP [1975-4-SCC-153:AIR-1975-SC-1252], this court held that the object of the proceedings thereunder is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and if so, what was its apparent cause. According to this Court, the question regarding the details how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings….."

26. In view of the settled position of law, the Trial Court is not justified in placing reliance on the statements of PW.2 and PW.3 made to the Revenue Divisional Officer at the time of the inquest proceedings and it can be used for the purpose of corroborating or contradicting the said witnesses when they were examined before the court, but not as substantive piece of evidence.

27. Another submission made by the learned senior counsel for the Appellants assailing the conviction made under Section 306 of IPC is that even assuming that there was some matrimonial dispute or discord between the deceased and the Appellants and some sort of harassment of the deceased by the Appellants, that by itself is not sufficient to attract culpability for an offence under Section 306 of IPC. The learned senior counsel referred to the judgement of the Honourable Supreme Court reported in the case of Bhagwan Das Vs. Kartar Singh and others [AIR-2007-SC-2045] wherein their Lordships referred to the observation made in the case of State of WB Vs. Orilal Jaiswal [1994-1-SCC-73] and held that there may be disputes and discords in the matrimonial home and wife may be often harassed by the husband or her in-laws, but that would not by itself be sufficient, without something more to attract an offence under Section 306 of IPC read with 107 of IPC.

28. In yet another decision in the case of Ramesh Kumar Vs. State of Chhattisgarh [2001-9-SCC-618], a three judges Bench of the Honourable Supreme Court has laid down as below:-

"Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires petulance,discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."

29. Before holding an accused guilty of an offence under Section 306 of IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative, but to commit suicide. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 of IPC is not sustainable.

30. In the present case, nothing is brought out from the evidence of PW.2 to PW.4 to bring home the charge under Section 498A and 306 of IPC on record and even regarding the last incident, there were two inconsistent versions of PW.4, the uncle of the deceased and PW.2 and PW.3 and as such, no credence can be attributed to their evidence. The necessary ingredients for holding the Appellants guilty of commission of the offence under Section 306 and 498A of IPC are totally absent in this case and therefore, conviction even under Section 306 and 498A of IPC is not warranted.

31. The evidence placed on record would only show that there was some misunderstanding between the Appellants and the deceased, but the same does not lead to an inference that the Appellant had committed the offences punishable under Section 304B and 306 and 498A of IPC and 4

of the Dowry Prohibition Act.

32. Having regarding to the analyse of evidence placed on record, I am of the considered view that demand of dowry or any harassment being the cause for the death of the deceased cannot be said to have been established beyond all reasonable doubt.

33. For the reasons aforementioned, the judgement of the Trial Court cannot be sustained.

34. In the result, The Criminal Appeal is allowed. The conviction and sentence imposed on the Appellants in SC.No.19/2002 are set aside and the Appellants are acquitted of the charges levelled against them. It is seen from the records that the Appellants had been enlarged on bail by this court. The bail bond if any executed by the Appellants shall stand terminated.

Srcm

To:

1.The Additional Sessions Judge (FTC-III) Coimbatore

2.The Public Prosecutor, High Court,

Madras

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