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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 07.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Criminal Appeal No.739 of 2009
Nedunchezhiyan .. Appellant
.. Vs ..
The State of Tamilnadu
Rep. By The Inspector of Police
Thirumanoor Police Station
Thirumanoor
Ariyalur Taluk District
(Crime No.59/2006) .. Respondent
PRAYER: Criminal Appeal filed under Section 374(2) Cr.P.C.,
against the order of conviction dated 22.10.2009 passed in
S.C.No.63 of 2007 on the file of the Mahila Court, Perambalur.
For Appellant : Mr.C.S.S.Pillai
For Respondent : Mr.R.Ravichandran
Government Advocte (Criminal Side)
JUDGMENT
The Criminal Appeal has been filed under Section 374(2)
Cr.P.C., against the order of conviction dated 22.10.2009 passed in
S.C.No.63 of 2007 on the file of the Mahila Court, Perambalur.
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2. The brief facts of the prosecution case is as follows:-
(i) P.W.1 – Govindaraj is the father of the deceased. P.W.2 –
Aandal is the mother of the deceased. P.Ws.3, 4 and 6 are relatives
of P.W.1. P.W.5 is neighbour of A.1 and the deceased. A.1 is the
husband of the deceased. A.2 is the brother-in-law of the deceased.
(ii) Marriage of A.1 and the deceased was performed on
22.02.2005. After the marriage, there was frequent quarrel in
between them, for which, A.1 harassed the deceased and demanded
dowry. Further, A2 also tortured the deceased for illegal relationship
and they continuously driven away the deceased from the
matrimonial home to her parents house. At one point of time, they
demanded Rs.25,000/- as dowry and suspected her character.
Hence, for an unbearable torture, the deceased poured kerosene
and set fire on her and committed suicide on 06.03.2006 and died
on 20.03.2006. In respect of which, P.W.1, who is the father of the
deceased, lodged a complaint, which is marked as Ex.P.13.
(iii)P.W.17, the Inspector of Police, received the complaint
from P.W.1 and registered a case in Crime No.59 of 2006 for offence
under Section 306 I.P.C. The Investigating Officer, took up the case
for investigation and went to the place of occurrence and he
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prepared Observation Mahazar – Ex.P.10, Rough Sketch – Ex.P.16,
Seizer Mahazar – Ex.P.11 and recorded the statement of P.W.1 as
Ex.P.12. Further, he recovered the Material Object Series – M.Os.1
to 3. Further, he conducted inquest over the dead body of the
deceased, in the presence of witnesses and marked the Inquest
Report as Ex.P.8 and after examining Medical Officer and other
witnesses, he altered the case under Sections 498A, 304B and 306
IPC. That alteration reports were marked as Exs.P.17 18.
(iv)The Sub-Inspector of Police, took up the case for further
investigation and arrested A.1 and A.2. Thereafter, P.W.17, took up
the case and laid final report against A.1 and A.2 under Sections
498A, 304B and 306 IPC. Trial was proceeded against A.1 and A.2.
3.Based on the above materials, the trial Court framed
charges for the offences under Sections 498A, 304B and 306 IPC
against both the accused.
4.In order to prove the case of the prosecution, on the side of
the prosecution, witnesses P.Ws.1 to 17 were examined; documents
Exs.P.1 to 18 were marked and material objects M.Os.1 to 3 were
marked.
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5.When the trial Court, examined the accused under Section
313 Cr.P.C, in respect of the incriminating evidences available
against them, they denied their complicity in the crime and pleaded
innocence. However, they neither choose to examine any witnesses
nor to mark any documents.
6.The trial Court, after considering the oral and documentary
evidences, has found the A.1 guilty under Sections 498A and 306
IPC and accordingly, convicted him under Section 498A IPC and
sentenced him to undergo 3 years Rigorous Imprisonment with fine
of Rs.1,000/- in default to undergo 3 months Rigorous
Imprisonment and under Section 306 IPC sentenced to undergo 5
years Rigorous Imprisonment with fine of Rs.1,000/- and in default
to undergo 3 months Rigorous Imprisonment. Further, the trial
Court acquitted the A.2 from all charges.
7.Challenging the said conviction and sentence, the
appellant/A1 has come up with this Appeal.
8.Heard the learned counsel appearing for the appellant and
the learned Government Advocate (Criminal Side) appearing for the
State.
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9.The learned counsel for the appellant would contend that
there is no material whatsoever available on record to prove the
charges under Sections 498A and 306 IPC against the accused/A.1.
Ex.P.13 is totally contradictory to the evidence of P.Ws.1, 2 and 15.
Even, the dying declaration is not corroborated with the evidence of
P.Ws.1, 2 and 15. Admittedly, the deceased committed suicide at
her husband’s house. Therefore, statement to the effect that the
accused instigated the deceased is an improved version and cannot
be believed. Hence, he prayed for acquittal of the accused.
10.Per contra, the learned Government Advocate (Criminal
Side) appearing for the State would submit that P.W.1 is the father
of the deceased. P.W.2 is the mother of the deceased and P.W.15 is
the sister of the deceased. They have clearly spoken about the
frequent quarrel in between the accused and the deceased. Further,
A.1 and A.2 demanded dowry frequently and driven away the
deceased from matrimonial home, to her parents house. In an
earlier occasion, at the instance of P.Ws.3 and 4, disputes between
A1 and the deceased were compromised and the parents of the
deceased sent back her to the matrimonial house. A minor
discrepancy occurred in the prosecution case is that the
presumption under Section 113B of the Indian Evidence Act, always
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in favour of the victim to the crime and the dying declaration itself is
sufficient, in order to prove the cruelty caused against the deceased
by A.1. Therefore, the Judgment of the trial Court need not be
interfered with.
11.In the light of the above submissions, it has to be decided,
‘whether the prosecution has proved the guilt of the accused/A.1
beyond all reasonable doubts ?’.
12.Before going into the said issue, for better appreciation, it
is relevant to extract Sections 306 and 498A IPC. The same read as
under:-
“306. Abetment of suicide — If any person commits
suicide, whoever abets the commission of such suicide, shall
be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable
to fine.
…………….
…………….
498A. Husband or relative of husband of a woman
subjecting her to cruelty — Whoever, being the husband
or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be liable
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to fine. Explanation —For the purpose of this section,
“cruelty” means— (a) 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) of the woman; or (b) 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.
13. It is also relevant to refer the decision of the Hon’ble Apex
Court in the case of K.V.Prakash Babu Vs. State of Karnataka
(Criminal Appeal Nos.1138 – 1139 of 2016 dated 22.11.2016). The
relevant paragraphs are as follows:-
“10. In view of the aforesaid evidence, the question that
emerges for consideration is whether the conviction under
Section 498A and 306 IPC is legally justiciable in this
context. We think it appropriate to refer to Section 498A
of the IPC. The said provision reads as follows:-
“498-A.HUSBAND OR RELATIVE OF HUSBAND OF A
WOMAN SUBJECTING HER TO CRUELTY:
Whoever, being the husband or the relative of the
husband of a woman, subjects such woman to cruelty
shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to
fine.
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Explanation: For the purposes of this section,
“cruelty” means
(a) 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 danger to life, limb or health
(whether mental or physical) of the woman;
or
(b) 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”
11. The said provision came up for consideration in
Giridhar Shankar Tawade vs. State of
Maharashtra[1], where the Court dwelling upon the
scope and purport of Section 498-A IPC has held thus:-
The basic purport of the statutory provision is to
avoid ‘cruelty’ which stands defined by attributing a
specific statutory meaning attached thereto as
noticed herein before. Two specific instances have
been taken note of in order to ascribe a meaning to
the word ‘cruelty’ as is expressed by the legislatures
: Whereas explanation (a) involves three specific
situations viz., (i) to drive the woman to commit
suicide or (ii) to cause grave injury or (iii) danger to
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life, limb or health, both mental and physical, and
thus involving a physical torture or atrocity, in
explanation (b) there is absence of physical injury
but the legislature thought it fit to include only
coercive harassment which obviously as the
legislative intent expressed is equally heinous to
match the physical injury : whereas one is patent,
the other one is latent but equally serious in terms of
the provisions of the statute since the same would
also embrance the attributes of ‘cruelty’ in terms of
Section 498-A.
12. In Gurnaib Singh v. State of Punjab[2], while
dwelling upon the concept of cruelty enshrined under
Section 498-A the Court has opined thus:-
“Clause (a) of the Explanation to the aforesaid
provision defines cruelty to mean any wilful conduct
which is of such a nature as is likely to drive the
woman to commit suicide. Clause (b) of the
Explanation pertains to unlawful demand. Clause (a)
can take in its ambit mental cruelty.”
13. The aforesaid analysis of the provision clearly spells
how coercive harassment can have the attributes of
cruelty that would meet the criterion as conceived of
under Section 498-A of the IPC. Thus, the emphasis is on
any wilful conduct which is of such a nature that is likely
to drive the woman to commit suicide. The mental cruelty
which is engraved in the first limb of Section 498-A of the
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IPC has nothing to do with the demand of dowry. It is
associated with mental cruelty that can drive a woman to
commit suicide and dependent upon the conduct of the
person concerned.”
14.On cumulative reading of the above provisions, made it
clear that the Hon’ble Supreme Court as well as the legal position
firmly established is that “suicidal death” of a married woman within
seven years of her marriage is covered by the expression death of a
woman is caused or occurs otherwise than under normal
circumstances as used in Section 304B IPC. To attract the provisions
of Section 304B IPC, one of the main ingredients of the offence
which is required to be established is that soon before the death she
was subjected to cruelty and harassment in connection with the
demand of dowry. Now keeping in mind the above principles laid
by the Hon’ble Apex Court, it has to be decided whether any
material is available to implicate the accused in the present case
under Sections 306 and 498A IPC.
15.The evidence of P.W.1, the father of the deceased clearly
indicates that the deceased was residing in the matrimonial home.
Admittedly, it is not in dispute that on 06.03.2006, the deceased
sustained injuries and immediately, she was taken to the Medical
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College and Hospital, Tanjore. P.W.16, the Medical Officer, who
admitted the deceased in the hospital, makes it clear that at the
time of admission, the deceased was sustained with bare injuries
due to the burnt caused by pouring kerosene on her. Though the
said occurrence was took place on 06.03.2006, the deceased was
died on 20.03.2006. Admittedly, P.Ws.1 and 2 were not available at
the scene of occurrence and after getting information, they rushed
to the hospital.
16.It is stated in the statements of P.Ws.1 and 2 that the
deceased was the second daughter to them. Further, they have
spoken that the marriage between the deceased and A.1 was a
arranged one. Immediately after two months of marriage, A.1 and
A.2 (A.2 – who is the brother of A.1), tortured the deceased
continuously and driven away the deceased from her matrimonial
home. Further, A.1 and A.2, came to the village of P.W.1 after
consuming alcohol and shown the finance company notice and
demanded Rs.25,000/- for settlement of the issue and left the
deceased in her parents house. After 20 days, A.2 and the relatives
of P.W.1 conducted panchayat and pacified the issue between the
deceased and A.1. Further, A.2 sexually tortured the deceased,
which was not questioned by A.1, even it was informed to him by
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the deceased. Hence, both A.1 and A.2, without considering that
the deceased was 7 months pregnant, continuously tortured her.
While preparing for baby shower function, parents of the deceased
were received information that the deceased was admitted in the
hospital. However, on perusal of P.W.2’s statement, it is clearly
stated that A.1 poured kerosene on the deceased and A.2 only set
fire on her. But, the said version is not supported by the evidence of
P.W.1. Even the evidence of P.W.15 also not corroborated with the
same. Further, the inquest report totally contradictory in nature to
the version of the prosecution. All the allegations of P.Ws.1, 2 and
15 were not available in the initial investigation conducted by the
revenue authorities. Even, on perusal of the dying declaration, the
deceased stated that her husband abused her in the morning by
suspecting her fidelity. Further, the dying declaration not
corroborates with the evidences of P.Ws.1,2 and 15.
17.However, on perusal of the statements of P.Ws.3,5 and 6,
who are known relatives of P.W.1, clearly admits that there is no
matrimonial dispute between A.2 and the deceased. Though, P.W.3
has turned hostile, in his prosecution examination, he clearly stated
that on an earlier occasion, the deceased attempted to commit
suicide and the same was questioned by P.W.3. Subsequently, she
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denied the same. Therefore, in view of the inconsistent statements
of dying declaration, it is unsafe to act upon the dying declaration of
the deceased to base the conviction on the accused/A.1. Further,
the evidences of P.Ws.3, 5 and 6 do not show any continuous
quarrel between A.1 and the deceased. No doubt, the deceased
was died due to burn injuries and kerosene was found on her body.
When two different views were given by the deceased and her
parents, that the parents of the deceased made allegations only on
the part of dowry demand and the deceased in her dying declaration
stated that her husband abused her by suspected her fidelity. In
such a situation, it is very unsafe to rely upon the dying declaration
against the accused/A1 for implicating him for the offences under
Sections 498A and 306 IPC.
18.Considering all these aspects, I am of the view that the
prosecution has not proved the guilt beyond all reasonable doubts.
Thus, the appellant/A.1 is entitled to the benefit of doubt.
19.On perusal of the entire evidence, no material was
available to implicate the accused/appellant harassed the deceased
or instigated the deceased to take the extreme step of committing
suicide. In the absence of any positive material, this Court except
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no other option, is inclined to interfere with the conviction passed
by the trial Court.
20. Accordingly, Criminal Appeal is allowed. Judgment passed
by the Mahila Court, Perambalur in S.C.No.63 of 2009 dated
22.10.2009 is set aside. The accused/A.1 is acquitted. Fine amount
if any paid already, shall be refunded to him. Bail bond, if any, shall
stand canceled.
07.12.2018
Jer
Index:Yes/No
Internet:Yes/No
Speaking order/Non-speaking order
To
1. The Mahila Court, Perambalur.
2. The Public Prosecutor, High Court of Madras.
3. The Section Officer, Criminal Section
High Court of Madras.
4. The Inspector of Police
Thirumanoor Police Station
Thirumanoor
Ariyalur Taluk District.
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M.DHANDAPANI., J
Jer
Criminal Appeal No.739 of 2009
07.12.2018