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Narayanan vs Ulundurpet Police Station) on 4 December, 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.12.2018

CORAM

THE HONOURABLE MR.JUSTICE M.DHANDAPANI

Crl.A.No.238 of 2005

Narayanan … Appellant

Vs.

State rep. by Deputy Superintendent of Police,
Kallakurichi
(Crime No.18/2003 on the file of
Ulundurpet Police Station) … Respondent

Prayer:
Appeal filed under Section 374 of Cr.P.C. seeking to set aside
the judgment of conviction and sentence of the appellant in
S.C.No.278 of 2003 dated 02.12.2004 on the file of the II Additional
Assistant Sessions Judge, Villupuram, Villupuram District.

For Appellant : Mr.AR.L.Sundaresan
Senior Counsel
for M/s.A.L.Gandhimathi

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

JUDGMENT

The appellant has filed this appeal seeking to set aside the

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judgment dated 02.12.2004 made in S.C.No.278 of 2003 by the

learned II Additional Assistant Sessions Judge, Villupuram, Villupuram

District.

2.The brief case of the prosecution is as follows: The first

accused and the deceased are husband and wife. The second accused

is the elder sister of the first accused. After their marriage, the first

accused and the deceased were residing at Vijayamanagaram. The

second accused was staying along with her parents after her husband’s

death. On 11.01.2003, at about 2.30 a.m., the deceased caused

death to her younger daughter namely Abinaya and committed suicide

by hanging herself.

3.A1 used to torture the deceased by demanding dowry and

every month, the deceased used to go to her parental house for

collecting money. Even two days prior to the date of occurrence, the

deceased and her husband/ first accused came to the house of P.W.3/

mother of the deceased and demanded a sum of Rs.5,000/-. P.W.3

pacified the deceased and her husband/ first accused saying that she

will give money within a couple of days and believing her words, the

deceased and the first accused went to their house.

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4.The first accused in his confession statement has stated that

when he returned to his house from his paddy field at 4 a.m. on the

date of occurrence, he found his wife and his second daughter hanging

separately. On seeing them he shouted. On hearing the same, the

villagers came.

5.P.W.2/ Village Assistant came to know about the incident and

he informed about the same to P.W.1/ Village Administrative Officer.

Thereafter, P.W.1 and P.W.2 went to the scene of occurrence.

Thereafter, P.W.1 informed about the said incident to the respondent

Police. Thereafter, investigation was conducted by the respondent

Police. On the information received from a local resident, P.W.3/

mother of the deceased rushed to the spot and found her daughter

and second grand-daughter dead.

6.Initially, the case was registered under Section 174 of Cr.P.C.

Since the deceased committed suicide before 7 years of marriage, the

respondent Police sent a copy of the FIR to the Revenue Divisional

Officer and the Revenue Divisional Officer conducted enquiry under

Section 174 of Cr.P.C. and his report was marked as Ex.P.11. After

due investigation, the case was altered to under Section 304-B of IPC

on 08.02.2003. The bodies of the deceased were taken to the hospital

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for post mortem. P.W.11 and P.W.12 are Doctors who conducted post

mortem. Inquest report was marked as Ex.P.11 and post mortem

reports were marked as Ex.P.12 and Ex.P.13.

7.After following due procedure and after framing of charges, the

same was read over and explained to the accused in Tamil. The

accused pleaded not guilty. Thereafter, trial was proceeded against

the accused.

8.On the side of the prosecution, 13 witnesses were examined as

P.W.1 to P.W.13 and 15 documents were marked as exhibits Ex.P.1 to

Ex.P.15. No material object was marked since the rope was burnt by

the accused and local villagers by following customary practice. On

the side of the accused two witnesses were examined as D.W.1 and

D.W.2 and no document was marked as exhibit.

9.P.W.3 is the mother of the deceased, P.W.4 is the brother of

the deceased, P.W.5 and P.W.6 are local residents. All the other

witnesses are witnesses who performed their official duty and assisted

the prosecution case.

10.After trial, the Trial Court convicted the appellant/ first

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accused for the offence under Section 304-B of IPC and sentenced him

to undergo 10 years rigorous imprisonment and to pay a fine of

Rs.5,000/- in default to undergo 6 months simple imprisonment. The

Trial Court acquitted the second accused. Aggrieved by the said

conviction and sentence, the appellant / first accused has filed this

appeal before this Court.

11.The learned Senior Counsel appearing for the appellant would

submit that the evidence let in by P.W.3, P.W.4 and P.W.6 are

inconsistent. He would further submit that P.W.3/ mother of the

deceased has deposed that the second accused is A1’s elder sister and

one Kala is A1’s younger sister and they both were married to P.W.3’s

sons namely, Krishnamoorthy and Saravanan. After their marriage

only, the marriage between the deceased and A1 was conducted. Both

the said Krishnamoorthy and Saravanan had passed away. Saravanan

had passed away during a road accident.

12.The learned Senior Counsel appearing for the appellant would

further submit that P.W.3 has further deposed that A1 used to torture

the deceased by demanding dowry and every month, the deceased

used to go to her parental house for collecting money. Even two days

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prior to the date of occurrence, the deceased and her husband/ first

accused came to the house of P.W.3 and demanded a sum of

Rs.5,000/-. P.W.3 pacified the deceased and her husband/ first

accused saying that she will give money within a couple of days and

believing her words, the deceased and the first accused went to their

house.

13.The learned Senior Counsel appearing for the appellant would

further submit that though P.W.4 has endorsed the deposition of

P.W.3, in his deposition P.W.4 has deposed that two days prior to the

date of occurrence, the deceased alone came to the house of P.W.3

and demanded a sum of Rs.5,000/- as if it was demanded by the first

accused. P.W.3 pacified the deceased saying that she will give money

within a couple of days and sent her to her matrimonial house.

14.The learned Senior Counsel appearing for the appellant would

further submit that since both their deposition not corroborated with

each other, the Trial Court passed conviction and sentence as against

the appellant. He would further submit that contrary to their

depositions, P.W.6 in his deposition has deposed that on 08.01.2003

there was a panchayat in which the first accused and the deceased

participated. One Saravanan/ brother in law of the first accused and

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brother of the deceased had passed away in an accident. The claim

amount for the same was to be given to his wife/ younger sister of the

first accused namely, Kala. However, P.W.4/ another brother in law of

the first accused had collected the amount and kept it for himself.

Hence, panchayat was held. In the said panchayat, P.W.4 had agreed

to pay a sum of Rs.30,000/- to the said Kala.

15.The learned Senior Counsel appearing for the appellant would

further submit that P.W.3 and P.W.4 in their depositions have also

admitted that there was panchayat two days prior to the date of

occurrence. He would further submit that on one hand they admit that

there was panchayat and on the other hand they say that there was

demand of dowry. There is no proper explanation on the side of the

prosecution that there was harassment soon before the date of

occurrence by demanding dowry and there is also no direct evidence

implicating the appellant as first accused. Hence, the prosecution has

not proved the case beyond reasonable doubt. Further, P.W.3 pacified

the appellant and the deceased. Accordingly, he prayed for acquittal

of the appellant/ first accused.

16.The learned Government Advocate (Crl. Side) would submit

that P.W.3 is the mother of the deceased. P.W.4 is the brother of the

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deceased. Very often, the deceased visited the house of P.W.3 and

demanded money as if instigated by the appellant. Even two days

prior to the date of occurrence, the deceased and her husband/ first

accused went to the house of P.W.3 and demanded a sum of

Rs.5,000/-. P.W.3 pacified the deceased and her husband/ first

accused saying that she will give money within a couple of days and

sent them to their house. Since the amount was not paid, the

appellant/ first accused tortured the deceased and forced her to

commit suicide.

17.The learned Government Advocate (Crl. Side) would further

submit that after examining the entire evidence and documents, the

Trial Court has rightly passed the conviction and sentence as against

the first accused/ appellant. Hence, the well considered judgment of

the Trial Court need not be interfered with. Accordingly, he prayed for

dismissal of the appeal.

18.Heard the arguments advanced on either side and perused

the materials placed on record.

19.Perusal of the deposition of P.W.3/ mother of the deceased

shows the close relationship of P.W.3 with the appellant family. It is

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also known that the appellant’s two sisters were married to P.W.3’s

two sons and those two sons have also passed away and both the

sisters of the appellant are widows. Further P.W.3 has deposed that

the appellant used to torture the deceased by demanding dowry and

every month, the deceased used to go to her house for collecting

money. Even two days prior to the date of occurrence i.e., on

08.01.2003, the deceased and the appellant went to the house of

P.W.3 and demanded a sum of Rs.5,000/-. P.W.3 pacified them saying

that she will give money within a couple of days and believing her

words, they returned to their house.

20.The above said facts were endorsed by P.W.4/ brother of the

deceased whose residence is in Vijayamanagaram. Whereas, P.W.3 is

residing in Vasanakuppam. Vasanakuppam is far away from

Vijayamanagaram. Further in their cross-examination, both of them

admitted that there was a panchayat on 08.01.2003, in which, the

appellant and the deceased participated. One Saravanan/ brother in

law of the appellant had passed away in an accident. The claim

amount for the same was to be given to his wife/ younger sister of the

appellant namely, Kala. However, P.W.4/ another brother in law of the

appellant had collected the amount and kept it for himself. Hence,

panchayat was held. In the said panchayat, P.W.4 had agreed to pay

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a sum of Rs.30,000/- to the said Kala.

21.The depositions of P.W.6, D.W.1 and D.W.2 prove that there

was panchayat at Vijayamanagaram prior to two days of the incident

and there was quarrel inbetween the deceased and her brother P.W.4.

Though P.W.3 and P.W.4 categorically stated that the deceased visited

her parental home two days prior to the incident, in their own evidence

they have also stated that there was a panchayat two days prior to the

incident and the deceased participated in the panchayat. Further the

evidence of P.W.3, P.W.4 and P.W.6 does not corroborate with each

other.

22.There is also no plausible explanation from the prosecution to

show that soon before her death the deceased was subjected to

cruelty or harassment by her husband forcing her to take the extreme

step of committing suicide by hanging herself.

23.It is also relevant to extract hereunder the relevant portions

of the decision of the Hon’ble Supreme Court reported in (2017) 1

SCC 101 (Baijnath and others Vs. State of Madhya Pradesh):

’24.The evidence on record and the
competing arguments have received our

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required attention. As the prosecution is on the
charge of the offences envisaged in Sections
304B and 498A of the Code, the provisions for
reference are extracted hereunder:

“304B. Dowry death.-(1) Where the
death of a woman is caused by any burns or
bodily injury or occurs otherwise than under
normal circumstances within seven years of
her marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative of
her husband for, or in connection with, any
demand for dowry, such death shall be called
“dowry death”, and such husband or relative
shall be deemed to have caused her death.

Explanation. – For the purpose of this
sub-section, “dowry” shall have the same
meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall
be punished with imprisonment for a term
which shall not be less than seven years but
which may extend to imprisonment for life.

25.Whereas in the offence of dowry
death defined by Section 304-B of the Code,

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the ingredients thereof are:

(i) death of the woman concerned is by
any burns or bodily injury or by any cause
other than in normal circumstances, and

(ii) is within seven years of her marriage,
and

(iii) that soon before her death, she was
subjected to cruelty or harassment by her
husband or any relative of the husband for, or
in connection with, any demand for dowry.

The offence under Section 498A of the Code is
attracted qua the husband or his relative if she
is subjected to cruelty. The explanation to this
Section exposits “cruelty” as:

(i)any wilful conduct which is of such a
nature as is likely to drive the woman to
commit suicide or to cause grave injury or
danger to life, limb or health (whether mental
or physical) or

(ii) harassment of the woman, where
such harassment is with a view to coercing her
or any person related to her to meet any
unlawful demand for any property or valuable
security or is on account of failure by her or
any person related to her to meet such
demand.

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28.Section 113B of the Act enjoins a
statutory presumption as to dowry death in the
following terms:

“113-B. Presumption as to dowry
death. – When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman has been subjected by such
person to cruelty or harassment for, or in
connection with, any demand for dowry, the
Court shall presume that such person had
caused the dowry death.

Explanation. – For the purpose of this
section, “dowry death” shall have the same
meaning as in section 304B of the Indian Penal
Code (45 of 1860)”

29. Noticeably this presumption as well is
founded on the proof of cruelty or harassment
of the woman dead for or in connection with
any demand for dowry by the person charged
with the offence. The presumption as to dowry
death thus would get activated only upon the
proof of the fact that the deceased lady had
been subjected to cruelty or harassment for or
in connection with any demand for dowry by
the accused and that too in the reasonable

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contiguity of death. Such a proof is thus the
legislatively mandated prerequisite to invoke
the otherwise statutorily ordained presumption
of commission of the offence of dowry death by
the person charged therewith.

30. A conjoint reading of these three
provisions, thus predicate the burden of the
prosecution to unassailably substantiate the
ingredients of the two offences by direct and
convincing evidence so as to avail the
presumption engrafted in Section 113B of the
Act against the accused. Proof of cruelty or
harassment by the husband or her relative or
the person charged is thus the sine qua non to
inspirit the statutory presumption, to draw the
person charged within the coils thereof. If the
prosecution fails to demonstrate by cogent
coherent and persuasive evidence to prove
such fact, the person accused of either of the
above referred offences cannot be held guilty
by taking refuge only of the presumption to
cover up the shortfall in proof.’

24.In the decision cited supra, the Hon’ble Supreme Court has

clearly held that the presumption as to dowry death would get

attracted only upon the proof of the fact that the deceased woman had

been subjected to cruelty or harassment for or in connection with any

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demand for dowry by the accused and that too in the reasonable

contiguity of death. Such a proof is thus the legislatively mandated

prerequisite to invoke the otherwise statutorily ordained presumption

of commission of the offence of dowry death by the person charged

therewith.

25.Further, as per Section 304-B of IPC, if death of a woman

was caused other than normal circumstances within seven years from

the date of marriage and if it is proved that soon before her death she

was subjected to cruelty or harassment by her husband or any relative

of her husband, then such death shall be called ‘dowry death’.

26.In the absence of any material to substantiate that soon

before the death of the deceased, she was subjected to cruelty or

harassment by her husband/ appellant forcing her to take the extreme

step of committing suicide, this Court is not able to accept the view

taken by the Trial Court. Since the prosecution has not proved the

case beyond reasonable doubt, this Court is inclined to set aside the

judgment dated 02.12.2004 made in S.C.No.278 of 2003 by the

learned II Additional Assistant Sessions Judge, Villupuram, Villupuram

District.

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27.In the result, the criminal appeal is allowed. The conviction

and sentence as against the appellant/ first accused in the judgment

dated 02.12.2004 in S.C.No.278 of 2003 passed by the learned II

Additional Assistant Sessions Judge, Villupuram, Villupuram District,

are set aside. The appellant/ first accused is acquitted from the charge

under Section 304-B of IPC. The fine amount, if any, paid by him is

ordered to be refunded to him. The bail bonds executed by him, shall

stand terminated/ discharged.

04.12.2018

pri

Speaking Order/ Non Speaking Order

Index: Yes/ No

Internet: Yes/ No

To

1.The II Additional Assistant Sessions Judge,
Villupuram, Villupuram District.

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M.DHANDAPANI,J.

pri

Crl.A.No.238 of 2005

04.12.2018

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