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Natarajan-vs-State Represented By The on 15 March, 2006

Madras High Court Natarajan-vs-State Represented By The on 15 March, 2006
Author: S S Hussain
Bench: S S Hussain

JUDGMENT

S. Sardar Zackria Hussain, J.

1. The appellant is A1 in S.C. No. 26 of 1998 on the file of the Principal Sessions Court, Pondicherry. The appeal is directed against the conviction and sentence imposed to the appellant/A1 to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for two months for the offence under Section 498A I.P.C. and rigorous imprisonment for seven years for the offence under Section 304B I.P.C.

2. The brief facts that led to the filing of this appeal are as follows:-

(a) The deceased Saraswathi is the second daughter of P.W.1 and sister of P.W.2. P.W.3 Raji is the friend of the deceased. The appellant/A1 is the husband of the deceased. A2 is the elder brother of A1. A3 is the wife of A2. The deceased and A1 got married in 1993 and out of the said wedlock, a child was born and died subsequently. The son by name Ramesh was born as the second child and was aged 2-1/2 years at the time of occurrence.

(b) After marriage A1 and the deceased were living well for two months and thereafter instigated by A2 and A3, A1 caused harassment by demanding dowry. About One and half years prior to the occurrence, A1 demanded Rs. 25,000/- to expand his grocery shop and only Rs. 10,000/- was paid later. Thereafter, one year prior to occurrence, the marriage of Baskaran, brother of the deceased was fixed. Since Baskaran was employed in abroad, it was informed by A1 that if Rs. 50,000/- is paid, he will send his wife, the deceased to the marriage of his brother Baskaran. Money was not paid and at the intervention of one Chellaiah and Rajendran, the deceased was sent to the marriage of his brother Baskaran. One and half months prior to the incidence, instigated by A2 and A3, by demanding dowry A1 made the deceased to remain outside the house whole night and it was accordingly informed by the deceased to her father/P.W.1. It is also known to P.W.3, the friend of the deceased. These facts also known to P.W.2 and Krishnammal, the mother of the deceased.

(c) After occurrence, the next day morning at 4.00 a.m., i.e., on 24.8.1997, the death of the deceased was informed over phone to P.W.1 and they came and seen the body of the deceased at 9.00 a.m. in the Government Hospital, Pondicherry. They were enquired into by the police, Tahsildar and police high officials. P.W.1 was informed that the deceased committed self-immolation by pouring kerosene.

(d) P.W.7, Head Constable attached to Orleanpet Police Station was in-charge of General Diary. On 24.8.1997 at about 00.30 hours, A1 came to the police station and gave complaint, which was reduced into writing under Ex.P-14 and the same was registered in Crime No. 259 of 1997 under Section 174 Cr.P.C. The printed F.I.R. is Ex.P-15. P.W.7 sent the copies of printed FIR to the Court and other officials. P.W.7 visited the scene of occurrence at 01.30 hours and drawn the rough sketch Ex.P-16 and prepared observation mahazar Ex.P-1 in the presence of P.W.4 and one Muruganandam. P.W.7 sent the body of the deceased to the hospital. He seized M.Os.1 to 6 under mahazar Ex.P-2 in the presence of the above witnesses.

(e) P.W.6 is the Deputy Tahsildar. Since the deceased died within seven years from the date of marriage, as per the orders of the higher officials, P.W.6 went to the Government General Hospital, Pondicherry at 1.00 p.m. on 25.8.1997 and conducted inquest on the body of the deceased in the presence of panchayatdars. He examined P.W.1, P.W.1’s wife Krishnammalle, the mother of the deceased, one Gandhi, P.W.2, the elder sister of the deceased and one Ganesan and recorded their statements Exs.P-6 to P-10 respectively. The inquest report is Ex.P-13.

(f) P.W.5 is the Senior Medical Officer, Government General Hospital, Pondicherry and as per the requisition, he conducted post-mortem on the body of the deceased at 12.00 noon on 26.8.1997. He found burns all over body. Rigor mortis present. External orifices normal. On dissection no internal injuries found. He assessed the burns as 95%. He was of the opinion that the deceased would have died of shock due to extensive burns. The post-mortem certificate issued by P.W.5 is Ex.P-3.

(g) P.W.8, Sub Inspector of Police, Orleanpet Police Station, Pondicherry, took up further investigation and on receiving inquest report Ex.P-13 from P.W.6 he altered the case from 174 Cr.P.C. to 498A and 304B read with 34 I.P.C., as per the alteration report Ex.P-17. P.W.8 arrested A1 and A2 on 29.8.1997 at 3.00 p.m. at No. 7, II Cross, Subbaiah Nagar, Pondicherry.

(h) P.W.9, Superintendent of Police, North, Pondicherry took up further investigation on 28.8.1997. After recording the statements of witnesses and verification of records and completing the investigation filed charge-sheet.

3. To prove the case, the prosecution examined P.Ws.1 to P-9 and marked Exs.P-1 to P-21 and M.Os.1 to 13. As against such evidence, on the side of the accused D.Ws.1 and 2 were examined and Exs.D-1 to D-10 were marked.

4. When the accused were questioned under Section 313 Cr.P.C. in respect of the incriminating evidence made available against them by the prosecution witnesses, all the accused denied the offence and have stated that false case has been foisted against them.

5. The trial Court considering such evidence let in on either side, though acquitted A2 and A3 as not guilty in respect of the charges levelled against them, by recording finding that A1 is guilty under Sections 498A and 304B I.P.C., convicted and sentenced as set out above. The conviction and sentence are challenged in this appeal by A1.

6. Heard Mr. G.R.Swaminathan, learned counsel for the appellant/A1 and Mr. P.Thangavel, learned counsel representing Public Prosecutor (Pondicherry).

7. The learned counsel for the appellant/A1 firstly submitted that inasmuch as A2 and A3 were acquitted in respect of the case of the prosecution that instigated by A2 and A3 one month prior to the date of occurrence, A1 harassed the deceased by demanding dowry and made her to remain outside the house whole night, as no such case was made out against them, similarly, A1 also ought to have been acquitted in respect of that incident. As regards the demand of Rs. 25,000/- one and half year prior to the occurrence, it is submitted by the learned counsel that it is not immediately prior to the occurrence and such a case has not been proved. As regards the other circumstances of demand of Rs. 50,000/- for sending the deceased to attend the marriage of her brother Baskaran, it is submitted by the learned counsel that there cannot be any truth in that in view of the fact that even as per the evidence of P.W.1, the deceased was allowed to attend the marriage without payment of Rs. 50,000/- as demanded by A1 at the intervention of one Chellaiah and Rajendran and therefore, according to the learned counsel, the cruelty and harassment of the deceased by demanding dowry have not been proved and the evidence let in through P.Ws.1 and 2, being the father and elder sister of the deceased are not reliable and P.W.3 being close friend of the deceased, the evidence of P.W.3 is also not reliable. The learned counsel also argued that as per the evidence let in through D.Ws.1 and 2, Doctors, only due to stomach pain, with which the deceased was suffering, she committed suicide by pouring kerosene on her. D.W.1 has stated in her evidence that the deceased was given treatment by her and she issued medical certificate Ex.D-3 dated 12.11.1998 and prescriptions Exs.D-4 to D-6 dated 2.12.1996, 10.12.1996 and 4.1.1997. D.W.2 has stated in her evidence that on 3.6.1997 the deceased came to her hospital with complaint of pain in abdomen. D.W.2 admitted her in the hospital and she was given treatment for one week as in-patient. Ex.P-7 (series 1 to 8) are laboratory reports for conduct of various tests on various dates. Ex.D-8 (series 1 to 7 are the list of medicines prescribed. Ex.D-9 is the abdomen scan report and Ex.D-10 is the E.C.G. Report.

8. Learned counsel representing the Public Prosecutor (Pondicherry) submitted that clinching evidence was let in through P.Ws.1 to 3, who have stated in their evidence about the cruelty caused by demanding dowry. Firstly, A1 demanded a sum of Rs. 25,000/- one and half year prior to the occurrence and secondly A1 demanded Rs. 50,000/- one year before the occurrence for attending the marriage of the brother of the deceased and thirdly one month prior to the occurrence A1 made the deceased to remain outside the house in the whole night by demanding dowry. It is further submitted by the learned counsel appearing for Public Prosecutor that the very fact that the deceased committed suicide in the room of the matrimonial house by pouring kerosene on her, strengthen the case of the prosecution, that only due to such demand of dowry she committed suicide and as such, presumption is to be drawn under Section 113B of the Indian Evidence Act, that only due to cruelty and harassment caused to the deceased by demanding dowry, the deceased committed suicide in the matrimonial house, which attracts Section 304B I.P.C. It is further argued by the learned counsel appearing for the Public Prosecutor, Pondicherry that the father and elder sister of the deceased have clearly stated in their evidence about the demand of dowry by A1 and which resulted in the death of the deceased.

9. In this regard, the learned counsel representing the Public Prosecutor (Pondicherry), also relied on the following decisions:-

(1) Satbir Singh v. State of Haryana reported in (2006)1 Supreme Court Cases (Criminal) 129, wherein it was held thus:-

Once the ingredients are fulfilled the death shall be presumed as dowry death. The husband and such other relatives shall be deemed to have caused her death.

(2) Devinder Singh v. State of Punjab reported in (2006)1 Supreme Court Cases (Criminal) 134, in which the Hon’ble Supreme Court held thus:-

In this connection, it is to be noted that the lady who could be the best person to speak about such demands; as the demands were allegedly made to her, is no more, the only remaining evidence can be that of the parents of the deceased to whom she would be supposed to mention about such demands in order to ascertain if they could meet the same.

10. The fact remains, viz., that the deceased and the accused got married on 18.3.1993 and the deceased died by committing suicide in the matrimonial house by self-immolation by pouring kerosene on 23.8.1997. Due to wedlock the deceased gave birth to the first child which died subsequently. Again the deceased gave birth to the second child by name Ramesh, which was about 2 to 2-1/2 years at the time of occurrence.

11. A1 gave complaint to the Head Constable P.W.7 Ex.P-14. The complaint was given at 0.30 hours on 24.8.1997. In the complaint Ex.P-14 it is stated that A1 was running a grocery shop and his wife, the deceased was working in the company manufacturing pickles. The deceased was suffering from stomach pain, for which she was given treatment. The day before the occurrence, the deceased complained of stomach pain, slept in the varandah and A1, his 2 years son and his nephew Ganesan slept in another room. On hearing a noise at 11.30 p.m., he opened the door and found his wife falling down with burns all over the body and by putting gunny bag and mat A1 tried to put off. Neighbours also came and tried to put off. A1’s wife, the deceased unbearable with stomach pain, self-immolated herself by pouring kerosene.

12. P.W.7 on receiving the complaint Ex.P-14, registered the same under Section 174 Cr.P.C. and went to the scene of occurrence and prepared observation mahazar Ex.P-1, in which it is stated that the body of the deceased was found in the room with burning injuries (fUfpa epiyapy;) on the chest, face, head, legs and hands and P.Ws.1 and 2 father and elder sister of the deceased and P.W.3 the friend of the deceased have clearly spoken about the demand of dowry, viz., A1 demanded a sum of Rs. 25,000/- one and half years prior to the occurrence and then demanded Rs. 50,000/- one year before the occurrence for attending the marriage of the deceased and one month prior to occurrence by A1 made the deceased to remain outside the house in the whole night by demanding dowry.

13. Though A2 and A3 were acquitted in respect of the incident, instigated by A2 and A3, A1 caused harassment and cruelty by demanding dowry and made the deceased to remain outside the house whole night. There is clinching evidence through P.Ws.1 and 2 in respect of demand of dowry of Rs. 25,000/- by A1, one and half year prior to the occurrence and the payment of Rs. 10,000/- by P.W.1 and in respect of the demand of Rs. 50,000/- one year prior to the occurrence for attending marriage of the elder brother of the deceased, which was not paid, but however on the intervention of Chellaiah and Rajendran the deceased was permitted to attend the marriage.

14. In Ex.D-1, affidavit issued by P.W.1, P.W.1 has stated that he received a sum of Rs. 10,000/- cash and also sridhana articles from A1 on 11.1.1998, suggesting that as demanded by A1, one and half year prior to the occurrence for demand of Rs. 25,000/- as dowry, P.W.1 paid Rs. 10,000/- for improvement of grocery shop business of A1, which has been repaid under Ex.D-1. Therefore, it is clear that the death of the deceased in the matrimonial house by self-immolation by pouring kerosene on her in the room was only in connection with the harassment and cruelty caused by demanding dowry from the deceased and otherwise there was no reason for committing suicide, especially when she was having son aged 2 years being the second child and the first child having died.

15. As regards the case of the accused that due to stomach pain, the deceased committed suicide, such a case is unbelievable as argued by the learned counsel appearing for the Public Prosecutor Pondicherry. D.W.1 issued certificate Ex.D-3 dated 12.11.1996, in which it is stated that she gave treatment to the deceased for lower pain abdomen, for which purpose the deceased came to her on 2.12.1996, 10.12.1996 and 4.1.1997 and she also issued prescriptions on those dates under Exs.D-4 to D-6. It is not known as to how D.W.1 saved those documents, that treatment was given to the deceased and issued such certificate Ex.D-3 dated 12.11.1996 and the prescriptions Exs.D-4 to D-6. No other records have been filed to substantiate the case that the deceased was suffering from stomach pain so as to say that due to such unbearable pain, the deceased committed suicide in the matrimonial house on the day of occurrence.

16. The trial Court rightly considering all these aspects recorded finding that A1 is guilty under Sections 498A and 304B I.P.C., in that presumption is to be drawn under Section 113B of the Indian Evidence Act, inasmuch as the deceased died within seven years from the date of marriage in the matrimonial house due to burn injuries, otherwise than normal circumstances and it is due to the harassment and cruelty caused by demanding dowry by A1 prior to her death and continuously for more than two years as spoken by P.Ws.1 and 2 and such finding, conviction and sentence imposed to A1 does not call for any interference.

17. In the result, the Criminal Appeal fails and is dismissed. The conviction and sentence imposed to appellant/A1 as per the judgment in S.C. No. 26 of 1998 dated 14.12.1998 on the file of the Principal Sessions Court, Pondicherry, are confirmed.

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