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Obuli (A1) vs The State By on 22 November, 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 22.11.2018

CORAM :

THE HON’BLE MR. JUSTICE M.DHANDAPANI

Crl.A.No. 86 of 2010

1. Obuli (A1)
2. Kalavathi (A3) ..Appellants

Vs.

The State by
Deputy Superintendent of Police,
Salem Rural,
Kondalampatti Police Station,
Salem District
Crime No. 53 of 2005 ..Respondent

Prayer: Criminal Appeal is filed under Section 374 (2) of Cr.P.C., to set
aside the conviction and sentence imposed on the appellant by the
Judgment dated 01.02.2010 passed in S.C.No.71/2007 on the file of
Sessions Judge Mahila Court, Salem.
For Appellants : Mr.K.Selvaraj

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

JUDGMENT

The appellants were arrayed as A1 and A3 in S.C.No.71 of 2007

on the file of the learned Sessions Judge, Mahila Court, Salem.

They stood charged for the offence under Sections 498-A and 304-B

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IPC. The accused denied the charges and opted for the trial.

Therefore, they were put for trial for the charges. After full-fledged

trial, the learned Sessions Judge found them guilty for the offence

under Sections 498-A and 304- B IPC and sentenced them to undergo

Rigorous Imprisonment for three years each, and to pay a fine of

Rs.1000/- each in default, to undergo Rigorous Imprisonment for

three months each for offence under Section 498-A IPC and to

undergo Rigorous Imprisonment for seven years each, and to pay a

fine of Rs.1000 each, in default, to undergo Rigorous Imprisonment

for three months each for the offence under Section 304-B IPC.

Challenging the conviction and sentence, the accused are before this

Court with the present criminal appeal.

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

(i) On 07.09.2003, the deceased Maheshwari was married to the

first appellant. At the time of marriage, the complainant/father of the

deceased gave 15-1/2 sovereigns of gold jewels to the deceased as

dowry and after marriage, the deceased was living with A1 at her

matrimonial home at Vembadithalam, Soundamman Koil Street along

with her father-in-law and mother-in-law as a joint family.

The deceased had a defect in her right eye and it was known by A1 to

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A3 before the marriage itself. Even though, her mother-in-law (A3)

abused the deceased that they had married a handicapped/visually

challenged girl and also complained that the deceased was not good at

cooking and she was not able to do any household works and within

three months of the marriage, A1 asked Rs.20,000/- as dowry from

the deceased person and her father for the purpose of setting up a

weaving unit, thereafter, PW1 gave Rs.20,000/- for the purpose of

setting up a weaving unit. Again, A1 demanded Rs.10,000/- as

additional dowry from PW1 and PW1 was not able to fulfill his demand.

Hence, A1 to A3 tortured the deceased. On 14.02.2005 at about

8.30 a.m., on demanding additional dowry, the accused were

harassing the deceased, upon which, the deceased committed suicide.

Accordingly, the appellants along with the other accused were

implicated in the present case for offence under Sections 498-A and

304-B IPC.

(ii) On 14.02.2005 at about 15.00 hours, on receipt of the

complaint from P.W.1, P.W.7, the then Sub-Inspector of Police,

Kondalampatti Police Station registered a case in Crime.No.53/05

under Section 174(3)(4) of Cr.P.C. Ex.P.4 is the First Information

Report. After registration of the case, copy of the F.I.R was forwarded

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to the Deputy Superintendent of Police and Revenue Divisional Officer

(R.D.O) enquiry was ordered. After receipt of the copy of the F.I.R.,

P.W.11 (Mr.Karunakaran), the then Deputy Superintendent of Police

took up the case for investigation. He proceeded to the scene of

occurrence and in the presence of PW5 (Veeraragavan) and PW6

(Selvaraj), he prepared the Observation Mahazar under Ex.P10.

Further, he drawn a rough sketch under Ex.P.1. Subsequent to the

preparation of those documents, he examined the other witnesses and

recorded their statements.

(iii) In the meanwhile, P.W.10 (Mr.Dhatchinamoorthy), the then

R.D.O after receiving a copy of the F.I.R, went to the Government

Mohan Kumaramangalam Medical College Hospital, Salem and in the

presence of witnesses, he conducted enquiry and prepared an inquest

report under Ex.P.8. Ex.P.7 is the opinion given by the RDO.

After preparation of the inquest report, he entrusted the dead body to

P.W.4 (Govindhan), who is the then Head Constable attached to the

Kondalampatti Police Station. In turn, he handover the dead body to

the Doctor for conducting autopsy.

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(iv) On receipt of the request given by PW10, P.W.9,

Dr.Vallinayagam, Director attached to the Madras Medical College and

Hospital, conducted autopsy over the dead body of the deceased.

During the time of post mortem, he found the following injuries:

“Superficial burn injuries present over the head,
face, front and sides of neck, chest, abdomen,
back of trunk and both upper and lower limbs.
Singeing of scalp hair, eyebrows, eyelashes, burns
absent over scapular region of back, gluteal
region, reddening over the left side of chest.”

The post mortem report given by P.W.9 is exhibited as Ex.P6.

During the course of post mortem, he collected the viscera of the

deceased and sent it to the chemical examination. In a report given by

the chemical examiner, it was mentioned that there is no poisonous

materials found in the viscera of the deceased. Accordingly, P.W.9

opined that the deceased was died of shock due to burns.

(v) In continuation of the investigation, on 24.02.2005, P.W.12

examined the Doctor and recorded his statement. On the same day, he

altered the Section of law as 304(B) IPC. Thereafter, he sent the

alteration report to the concerned Judicial Magistrate. Further, on the

same day, near Vembadithalam bus stand, he arrested all the three

accused and sent them for Judicial custody. On completion of

investigation, he came to the positive conclusion that both A1 and A3

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committed the offence under section 304(B) IPC and filed a final

report.

(vi) After receiving the final report, the learned Judicial

Magistrate No.V, Salem issued summon in P.R.C.No.1 of 2006 for

appearance of the accused and production of documents, which are

relied on by the prosecution were furnished to the accused. Thereafter,

the case has been committed to the Court of Sessions Judge, Mahila

Court, Salem for trial. In the Court of Sessions, Salem, the case was

assigned as S.C.No.71 of 2007.

(vii). At the time of questioning the allegations, the accused

denied and pleaded as not guilty. Therefore, charge has been framed

for the offence under Sections 498-A and 304-B IPC.

3. Based on the materials available on record, the Trial Court

framed charges against the accused as stated supra and the accused

denied the same. In order to prove the case on the side of the

prosecution, as many as 12 witnesses were examined as P.W.1 to

P.W.12 and 12 documents were marked as Ex.P.1 to Ex.P.12.

On the side of the defence, 5 witnesses were examined as D.W.1 to

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D.W.5 and no documents were marked as exhibits.

4. Learned Trial Judge with reference to the incriminating

materials adduced by the prosecution questioned the accused under

Section 313 of Cr.P.C. and for which, they were pleaded as not guilty.

5. The learned Trial Judge on perusal of the materials placed and

on considering the arguments advanced by both sides, convicted and

sentenced the appellants as stated above and acquitted the second

accused under Section 235(1) of Cr.P.C. Challenging the same, the

present criminal appeal has been filed by the first and third

accused.

6. Today, when the appeal is taken up for consideration, I have

heard Mr.K.Selvaraj, learned counsel for the appellants and

Mr.R.Ravichandran, learned Government Advocate (Crl.Side) for the

respondent and also perused the records carefully.

7. Mr.K.Selvaraj , learned counsel appearing for the appellants

would submit that PW1, PW2 and PW3 who are non other than father,

mother and uncle of the deceased person and the remaining witnesses

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are the persons who had conducted the post mortem and Revenue

authorities who conducted investigation under Section 174 of Cr.P.C.

Except P.W.1 to P.W.3, no other witnesses spoke against the accused

persons. Even on perusal of PW1 complaint given by him, there is no

allegations with regard to the demand of additional dowry of

Rs.10,000/- and there is no alleged guilty committed by the accused

persons against the deceased person. On perusal of PW2 and P.W.3,

there was a hearsay evidence and there is no documentary evidence

to the additional demand of dowry. There is also no documentary

evidence on the Doctor’s evidence who conducted the post mortem on

the injuries.

8. Prior to the date of occurrence, A2 and A3 left home to attend

the marriage function of their house owner and the deceased and her

husband (A1) also attended the function. They reached their

matrimonial home at 7 p.m. Thereafter, A1 went to relative marriage.

After the marriage, A1 along with his sister’s son came to the house

and found the deceased person committed suicide by pouring the

kerosene and set fire on her body. Immediately, the same was

conveyed to the Police Officials/ Law Enforcing Agency. Initially, the

case was registered under Section 174(3)(4) Cr.P.C, thereafter, it was

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altered under Sections 498-A and 304-B IPC. Except the three

witnesses, viz., P.W.1 to P.W.3, no other incriminating documents were

available.

9. Per contra, the learned Government Advocate (Crl.Side) would

submit that PWs1 and 3 have categorically narrated the guilt against

the A1 and A3. Initially, they had parted Rs.20,000/- as dowry from

the father(P.W.1) of the deceased. Thereafter, A1 demanded

Rs.10,000/- as additional dowry. However, learned Government

Advocate (Crl.Side) fairly stated that there is no proof for the demand

of additional dowry is available in the evidence of P.W.1, even in chief

examination as well as in cross-examination. Even on perusal of RDO

enquiry, P.W.10 has clearly deposed that there is no demand of dowry.

They have categorically deposed that there was no dowry demand

against the deceased person and the RDO report has also been filed.

No documentary evidence is available to show that there is dowry

demand even on perusal of inquest report and post mortem under

Ex.P.8 and Ex.P.9.

10. I have considered the rival submission made by the parties.

Admittedly, the case has been registered and the appellants are before

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this Court.

11. I have gone through the documentary evidence produced on

record and this Court also read oral evidence of the Prosecution

Witnesses and perused the charge framed against the accused person

that the Lower Court framed two charges against the accused persons.

12. On perusal of the records discloses the marriage of the first

appellant and the deceased was sodomized on 07.09.2003.

On perusal of evidence of PW1 and PW2, the deceased and A1 were

happily lived in the matrimonial home as husband and wife and initially

A1 demanded Rs.20,000/- for set up weaving unit in his house.

Accordingly, PW1 by pledging the jewels of 5 sovereigns of gold

belonging to the deceased and 4-½ sovereigns of gold belongs to A1

which is totally 9-½ sovereigns of gold were pledged and got

Rs.20,000/- for giving to son-in-law(A1) for setting up a weaving unit.

However, on perusal of evidence, the demand of Rs.20,000/- is not

available. Further, there is no demand of additional dowry of

Rs.10,000/- which is also not available in evidence of P.W.1 and it is

stated in the chief examination and cross examination, he received a

phone call from the neighbour of A1 as his daughter had committed

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suicide. Immediately, they rushed to the spot and made a complaint

on the same day to the respondent Police. Police initially registered the

case in Crime.No.53/05 under Section 174(3)(4) of Cr.P.C and after

inquest, they implicated the accused persons A1 and A3 under

Sections 498-A and 304-B IPC. Even on perusal of the entire chief and

cross examination of PW.2 and P.W.3 were not mentioned and even a

single word about demand of dowry and they are not pleaded about

the compatibility of A1 and deceased. There is no allegation with

regard to the demand of dowry which drove the deceased to the

parental home till her death. The compatibility of the mother-in-law

and the deceased person would not lead to prosecution. On perusal of

Doctor’s evidence, who conducted post mortem and the Doctor

disclosed only external burn injuries and he deposed only burn injuries

sustained by the deceased person.

13. Even on perusal of Ex.P6, it did not reveal any cruelty or

harassment before death of the deceased. There is no corroboration

between the evidence of PW1 and PW3. PW3 is none other than the

cousin of the deceased who deposed that he along with A1 available in

the marriage hall at 5.30 p.m.. They joined together and reached A1’s

home. They found the deceased with burn injuries.

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14. 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
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).

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(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,
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

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(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.

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)”

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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
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

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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.’

15. 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

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.

16.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’.

17. The learned Sessions Judge arrived at a conclusion that

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within 7 years of marriage, if death is occurred, there is a chance for

dowry death. However, in the present case, there is no evidence

either by P.W.1 or P.W.2 and simply stated that A1 and A3 demanded

Rs.10,000/- as additional dowry, for which, there is no proof available.

Further no material evidence available, before her death she was

subjected to cruelty by A1 or other accused drove the deceased

commit suicide.

18. In the result, the criminal appeal is allowed and the

conviction and sentence imposed on the appellant in S.C.No. 71/2007

dated 01.02.2010 by the learned Sessions Judge, Mahila Court, Salem

are set aside. The appellants/accused are acquitted from the charge

under Sections 498-A and 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.

22.11.2018

msv

Index:Yes/No
Internet:Yes/No
Speaking order: Non-speaking order

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To

1. The learned Sessions Judge,
Mahila Court, Salem.

2. The Deputy Superintendent of Police,
Salem Rural,
Kondalampatti Police Station,
Salem District.

3. The Public Prosecutor,
High Court, Madras.

M.DHANDAPANI,J.

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msv

Crl.A.No. 86 of 2010

22.11.2018

http://www.judis.nic.in

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