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Nedunchezhiyan vs The State Of Tamilnadu on 7 December, 2018

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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
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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

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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

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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

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