Madras High Court Palani-vs-State Represented By on 21 October, 2010
THE HON’BLE MR.JUSTICE T.SUDANTHIRAM
CRL.A.No.783 of 2003 and
CRL.R.C.No.789 of 2003
CRL.A.No.783 of 2003
2. Subbulakshmi .. Appellants /Accused 1 & 2
State represented by
Chennai 600 039. .. Respondent/Complainant
Prayer:- Appeal is filed under Section 374 of the Code of Criminal Procedure, against the Judgment dated 07.05.2003 passed in S.C.No.231 of 2001 on the file of the Magalir Neethimandram, Chennai 104, and pray for setting aside the conviction and sentence imposed on them. For Appellants : Mr.S.Sadasharam
For Respondent : Mr.A.Saravanan,
CRL.R.C.No.789 of 2003
G.Arumugam .. Revision Petitioner / RW1
4. The Assistant Commissioner
Chennai 39. … Respondents
Prayer:- Petition is filed under Section 397 & 401 of the Code of Criminal Procedure, against the Judgment dated 07.05.2003 passed in S.C.No.231 of 2001 on the file of the Magaler Neethimandram, Chennai, challenging the acquittal of 3rd respondent and seeking conviction of respondents 1 to 3 under Section 302 and 201 IPC. For Petitioner : Dr.G.Krishnamurthy
For R1 to R3 : Mr.S.Sadasharam
For R4 : Mr.A.Saravanan,
Government Advocate(Crl. Side)
The appellants in Criminal Appeal No.783 of 2003 are the accused 1 and 2 in S.C.No.231 of 2001 on the file of the Magaler Neethimandram, Chennai. Totally, there are three accused in this case. The 3rd accused had been acquitted by the Trial Court from the charges under Sections 498-A, 306, 304-B, IPC and under Section 4 of the Dowry Prohibition Act. The first accused was convicted under Section 304-B IPC and sentenced to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine amount of Rs.20,000/-, in default, to undergo Simple Imprisonment for a period of one year; the second accused was convicted under Section 304-B IPC and sentenced to undergo Rigorous Imprisonment for a period of 7 years and to pay fine of Rs.5,000/-, in default, to undergo Simple Imprisonment for a period of three moths and no separate sentence was awarded by the Trial Court on the accused 1 & 2 for the offences under Sections 498-A, 306 IPC and under Section 4 of the Dowry Prohibition Act. Challenging the said conviction and sentence, the appellants / A1&A2 have preferred the Criminal Appeal No.783 of 2003.
2. P.W.1 Mr.G.Arumugam, who is the father of the deceased had preferred the Criminal Revision in Crl.R.C.No.789 of 2003, seeking conviction to the Accused 1 to 3 under Section 302 and 201 IPC.
3. The case of the prosecution, in brief, is as follows:-
The second and third accused are the mother and father of the first accused. The marriage of the first accused with the deceased Jeeva, daughter of PW1, was performed on 07.02.1999. At the time of marriage, Jeeva was given 15 sovereign of gold jewels apart from other house-hold articles. Subsequently, five sovereigns of gold jewels were given to the deceased. After the marriage, the deceased Jeeva and the first accused were living happily only for a period of one or two months. Thereafter, a separate family was set up at Padi. Unable to bear the rental expenses, the first accused and the deceased came back to the house of 2nd and 3rd accused and they were living in separate portion in the same house. There was a demand for a motorbike by the accused 1 and 2 for which the deceased was harassed. PW1 was unable to meet out the demand made by the accused due to the financial crisis. In respect of the demand and harassment, the deceased had written two letters to her father PW1, which are marked as Exs.P1 and P2. Afterwards, a panchayat was convened and PW3, friend of PW1, had also participated in the said Panchayat. In the Panchayat, PW1, promised to give a motorbike to the first accused after a period of few months. Four months after the Panchayat on 20.09.2000, PW1 and PW2 were informed that Jeeva had died. Therefore, P.W.1 and P.W.2 came to the house of the accused and they were informed by the accused that the deceased died due to hanging. PW1 gave a complaint Ex.P3 to the Police. On receiving the complaint from P.W.1, the Inspector of Police registered a case in Crime No.764 of 2000 for the offences under Sections 498-A and 304-B IPC. Ex.P11 is the First Information Report. PW8, the Assistant Commissioner of Police, took up the investigation. On receiving requisition, PW5-Tahsildar of Kottai-Tondiarpettai Division conducted enquiry over the body of the deceased. He recorded the statement of the witnesses. He prepared the inquest report Ex.P6 and sent a requisition to the Doctor to conduct Postmortem examination. PW4 Doctor had conducted autopsy over the body of the deceased. Ex.P5 is the Postmortem Report. He gave opinion that the deceased died of Asphyxia due to hanging. PW8, the Investigating Officer, arrested the accused persons and sent them to Judicial custody. After completing the investigation, he laid a final report against the accused for the offences under Sections 498A, 304B and Section 4 of Dowry Prohibition Act.
4. In order to establish the case, the prosecution examined PWs 1 to 8; marked Exs.P1 to P16 and produced MO1. The accused 1 to 3 were questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances and they denied their complicity.
5. The Trial Court, after analyzing the oral and documentary evidence, convicted and sentenced the accused as already stated above.
6. Mr.S.Sadasharam, learned counsel appearing for the appellants / accused 1 to 3, submitted that even as per the case of the prosecution, the ingredients of the offences under Sections 306 and 304-B IPC are not made out and originally charge under Section 304-B IPC was not framed against the accused. But, at the fair end of the trial, the second charge under Section 304-B IPC was framed, which caused great prejudice to the accused. The learned counsel for the appellants/accused further submitted that there was no demand of dowry and the deceased was not subjected to any cruelty and even the letters Exs.P1 and P2 marked by the prosecution did not indicate any cruelty by the accused and further, Exs.P1 and P2 were written more than 2 months prior to the death of the deceased and Exs.P1 and P2, letters said to have been written by the deceased are not admissible in evidence. Ex.D1, the letter written by the deceased dated 03.04.2000 would disprove the case of the prosecution and it would show that the deceased had tendency to commit suicide. The learned counsel further submitted that apart from PW1 and PW2, parents of the deceased, PW3 has also given evidence against the accused, but PW3’s evidence is only in the nature of hearsay evidence. The learned counsel drew the attention of this Court, to Ex.P7, a statement given by the first accused to PW5-Tahsildar in which, it is stated that the deceased was suffering from stomach pain and therefore, she committed suicide by hanging. The learned counsel submitted that even the offence under Section 498-A IPC is not made out against the appellants / Accused 1 to 3.
7. Per contra, the learned Government Advocate (Crl. Side) submitted that PW1 father of the deceased categorically stated that the second accused demanded a motorbike and PW2 stated that the accused demanded money for starting a company and the first accused had demanded a motorbike and the deceased was harassed by the accused for the said demand. The learned counsel also submitted that Exs.P1 and P2 also corroborate the evidence of PWs.1 and 2 and in Exs.P1 and P2, letters were written by the deceased, it is mentioned that the deceased was abused by the accused. The learned Government Advocate fairly conceded that there is no demand of dowry, but stated that the appellants are liable for the offence under Section 306 of IPC and the presumption under Section 113A of the Indian Evidence Act is also available.
8. The learned counsel appearing for the revision petitioner/PW1, father of the deceased, submitted that as per the Postmortem report, some antemortem injuries were noticed on the body of the deceased. Doctor-P.W.4 had stated that the deceased had sustained injury on the head, which was possible due to violence. The learned counsel for the revision petitioner further submitted that the acquittal of the 3rd accused is erroneous, since PW2 had stated in her evidence that A3 also harassed the deceased. The learned counsel for the revision petitioner also submitted that the deceased had committed suicide due to demand of dowry.
9. The learned counsel for the revision petitioner also submitted that Ex.D1 is not admissible since only Xerox copy is filed and original is not filed and further PW1 admitted the handwriting of the deceased in Ex.P1 and P2 and Ex.P1 would show that the deceased was driven to commit suicide due to the cruelty given by the accused.
10. This Court has considered the submissions made by both parties and perused the records.
11. According to the evidence of PW1, father of the deceased, there was some dispute between the deceased and the first accused. The second accused demanded a motorcycle and the deceased also had written two letters viz., Exs.P1 and P2. Even in Exs.P1 and P2, it was mentioned that there was a demand for two wheeler vehicle for which the deceased was abused. It is the evidence of PW2, mother of the deceased that the accused 1 to 3, wanted a company to be started by P.W.1 since PW1 had started a company for his son. PW2 also stated that four months prior to the death of the deceased, the first accused brought the deceased and dropped in the house of the PW2 saying that she could return to the matrimonial home only if she comes with the vehicle.
12. Now, it is to be seen whether the offence under Section 304B IPC is made out or not. Section 304B of IPC is as follows:
"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."
13. The section 2 of the Dowry Prohibition Act is as follows:
"2. Definition of "Dowry" In this Act, "Dowry" means any property or valuable security given or agreed to be given either directly or indirectly – a) by one party to marriage to the other party to the marriage; or
b) by the parents of either party to a marriage or by any other persons, to either party to the marriage or to any other person;
at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."
14. As per the above definition, the demand for the vehicle, viz., Motor Cycle was not in connection with the marriage of A1 and the deceased. Therefore, it cannot be said that this is a case of the dowry death since even as per the explanation under Section 304B IPC for the purpose of this sub-section, dowry shall have the same meaning, as in the Section 2 of the Dowry Prohibition Act.
15. Even though, the death of the deceased is not a dowry death, it is also to be seen whether the offence under Section 306 IPC is made out. Section 113A of the Indians Evidence Act reads as follows: "[113A. Presumption as to abetment of suicide by a married woman.
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. For the purposes of this section cruelty shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]" To draw the presumption under Section 113A of the Indian Evidence Act , it must be established by the prosecution initially that the deceased was subjected to cruelty as defined under Section 498-A of the Act.
16. Section 498A of IPC reads as follows:
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 to fine. Explanation-For the purpose 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 meet such demand.]" Explanation under Section 498A of IPC contains two parts. From the evidence let in by the prosecution, there is no material to show that the deceased was subjected to cruelty and it cannot be said that there was a wilful conduct on the part of the accused to drive the deceased to commit suicide. Even accepting that there was a demand for a vehicle, it cannot be said that the deceased was subjected to cruelty. Therefore, even the ingredients of the offence under Section 306 of IPC are not made out against the accused / appellants.
17. Though it is held that the accused have not committed any cruelty so as to drive the deceased to commit suicide, it appears from the evidence of P.Ws.1 & 2 that there was a demand for a motorcycle by the accused 1 and 2. It is the evidence of PW2 that once the first accused took the deceased to her parent’s house and left her stating that she could return to the matrimonial home if only she comes with the vehicle. Even in Ex.P1, the letter sent by the deceased to the father PW1, she had mentioned that she was abused by the accused for the reason that the vehicle was not given. Though Ex.P1 & P2 were written much prior to the death of the deceased, there is an impediment in admitting them as they cannot be termed as dying declaration. The oral evidence of PW1 and PW2 is sufficient to prove that the deceased was harassed by the accused 1 and 2, demanding a motorcycle. Therefore, the accused 1 and 2 / appellants are liable under Section 498A IPC.
18. Though it was contended by the learned counsel for the revision petitioner that the deceased had sustained Antemortem injuries as per the evidence of the Doctor, this Court perused the evidence of PW4 and Postmortem report. In Ex.P5, it is mentioned as follows: "Antemortem Injuries:
1. Both eye show subconjunctiral haemorrhage with ecchymosis (black eye)
2. Contusion over the left lower lip corresponding to the upper canine & Premolar.
3. An oblique blackish brown incomplete, intermittent ligature mark seen over the front and outer aspect of the neck measuring 18 x 1.5 c.m.
It lies 7 c.m. below the right mastoid, over the outer aspect of neck, 4 c.m. below chin and 9 c.m. above suprasternal notch. Over the right side of neck in lies 2.5 c.m. below the left middle third of Ramus of mandible.
4. Mursal aspect of tongue over the left side, shows diffuse blackish contusion."
19. Though the Doctor has mentioned about the Antemortem injury, it is clear that the death was possible only by hanging. The doctor also admitted that even the injuries 1 & 4 are possible at the time of hanging. From the Postmortem Report, it was not possible for the Doctor to say that the deceased was subjected to cruelty. It is brought to the notice of this Court that the revision petitioner-PW1, even before the commencement of trial, filed a petition in Crl.O.P.No.22358 of 2000, seeking a direction for further investigation stating that it was a case of 302 IPC. The said petition was dismissed by this Honourable High Court on 25.01.2001.
20. This Court does not find any merit in the revision filed by the revision petitioner / PW1, father of the deceased. Hence, the Crl.R.C.No.789 of 2003 filed by P.W.1 is liable to be dismissed.
21. The learned counsel appearing for the appellants / Accused 1 and 2 stated that both the Accused 1 and 2 have already been in jail for a period of 65 days.
22. In the result, the Criminal Revision No.789 of 2003 filed by the revision petitioner/PW1 is dismissed. The Crl.A.No.783/2003 filed by the accused 1 & 2 is partly allowed and the conviction imposed on the appellants / Accused 1 and 2 for the offences under Sections 306, 304B IPC and Section 4 of Dowry Prohibition Act is set aside. The sentence imposed on the appellants / accused 1 & 2 under Section 304B IPC is also set aside.
23. The conviction imposed on the accused 1 and 2 / appellants under Section 498A IPC alone is confirmed and they are sentenced to undergo imprisonment for a period of two months, which they have already undergone. Further, 1st accused is sentenced to pay a fine of Rs.20,000/- and second accused is sentenced to pay a fine of Rs.5,000/-. In default of payment of fine, they shall undergo each 6 months simple imprisonment. The fine amount already paid by the appellants A1 and A2 for the offence under Section 304B IPC shall be adjusted towards the fine amount now imposed by this Court for the offence under Section 498-A IPC. ogy
1. The Magalir Neethimandram,
2. The Assistant Commissioner
Chennai 600 039.
3. The Public Prosecutor,