Crl.A(MD)No.15 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 19.09.2019
CORAM
THE HONOURABLE MR. JUSTICE B.PUGALENDHI
Crl.A(MD)No.15 of 2014
1.Palanisamy
2.Vallikannu
3.Ravi .. Appellants
Vs.
State rep. by
The Inspector of Police,
Illuppur Police Station,
Pudukkottai District.
Crime No.135 of 2011 .. Respondent
PRAYER: Criminal Appeal filed under Section 374 of the
Criminal Procedure Code to call for the records pertaining
to the judgment passed by the learned Sessions Judge,
Mahila Court, Pudukkottai, in S.C.No.103 of 2012 dated
27.12.2013 and set aside the same.
For Appellants: Mr.V.Kathirvelu,
Senior Counsel
for Mr.B.Jameel Arasu
For Respondent: Ms.S.Bharathi
Government Advocate (Crl. Side)
*****
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JUDGMENT
This appeal is arising out of the conviction and
sentence imposed by the learned Sessions Judge, Mahila
Court, Pudukkottai in S.C.No.103 of 2012, dated
27.12.2013.
2. The appellants were charged for the offence
punishable under Sections 498(A) and Section306 IPC and the
learned trial Judge, after full fledged trial, though
acquitted them under Section 306 IPC, has found them
guilty under Section 498(A) IPC, convicted and sentenced
them to under rigorous imprisonment for three years, each
and to pay a fine of Rs.25,000/-, each, in default, to
undergo rigorous imprisonment for six months, each.
3. The background facts, as projected by the
prosecution, in a nutshell, are as follows:
3.1. The deceased got married to one Rajkumar / son
of the 1st and 2nd appellants, in the year 2007 and there
are having a male child. The first appellant is the
father-in-law; second appellant is the mother-in-law; and
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the third appellant is the brother-in-law of the deceased.
During the time of marriage, Rajkumar was employed in
Singapore and for the purpose of marriage, he came to
India and thereafter, returned to Singapore.
3.2. According to the prosecution, the deceased got
permission from her husband to study Teacher Training
Course and as she came to the house at evening hours, she
could not maintain her child and in-laws properly.
Therefore, the appellants herein started harassing her,
both mentally and physically. When the deceased complained
her husband about these incidents, he convinced her. The
same situation persisted when the said Rajkumar returned
India and he convinced her that he would talk to them and
solve the issue. In the meantime, Rajkumar got his return
ticket to Singapore on 23.07.2011 and he informed the same
to his wife / deceased. The deceased told him that if he
leave to Singapore, the appellants would harass her and
her husband consoled her that he already talked to his
family and she will not feel discomfort. However,
apprehending that the appellants herein will harass her,
the deceased decided to commit suicide and on 11.07.2011
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at about 10.15 pm, when the appellants had gone to see the
Arichandra Drama, she came to the front hall of the house
and committed suicide by pouring kerosene on her body and
set fire.
3.3. On hearing the noise, the husband and other
neighbours came and took the deceased to the Government
Hospital, Manapparai, from where she was referred to
Government Hospital, Trichy, for further treatment. Since
the health condition of the deceased was deteriorating, on
12.07.2011, at about 02.20 am, a request was made to the
learned Judicial Magistrate, Trichy, by the Government
Hospital, Trichy, to record the dying declaration of the
deceased. On receiving the intimation, the learned
Magistrate reached the Hospital at about 02.33 am and
after ascertaining and satisfying with the deceased’s
physical and mental condition, has recorded the dying
declaration [Ex.P7]. On the same day, at about 04.45 am,
the deceased did not respond the treatment and died.
3.4. On intimation from the Government Hospital,
Trichy, the Special Sub Inspector of Police [PW6] went to
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the Hospital and obtained a written complaint [Ex.P5] from
one Tamilselvan [PW1], brother of the deceased.
Thereafter, PW6 registered a case in Crime No.135 of 2011
under Section 174 Cr.P.C and sent the First Information
Report [Ex.P6] along with the written complaint [Ex.P5] to
the Revenue Divisional Officer, Trichy [PW11] and
forwarded a copy of the same to the Deputy Superintendent
of Police, Keeranur [PW12].
3.5. The Revenue Divisional Officer, Trichy [PW11],
on receipt of the First Information Report, proceeded to
the Government Hospital, Trichy and conducted the inquest
on the body of the deceased, in the presence of the
panchayatars. She also enquired the witnesses and recorded
their statements. The Revenue Divisional Officer, in
conclusion of the enquiry, has opined that the deceased
did not like her husband to go to Singapore and therefore,
poured kerosene and set fire. She has also made a request
to the Doctor, Government Hospital, Trichy, to conduct
postmortem on the body of the deceased. The report of the
Revenue Divisional Officer is marked as Ex.P11.
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3.6. The Doctor [PW10], who was on duty at Government
Hospital, Trichy, received the requisition letter at about
04.00 pm on 12.07.2011 and commenced the postmortem at
about 04.45 pm. The postmortem report is marked as Ex.P9
and in conclusion of the postmortem, the Doctor [PW10] has
given his final opinion that the deceased would appear to
have died of burns wound. He has also referred the
deceased for chemical analysis and in conclusion of the
same, the Chemical Analyst [PW9] has opined that no
alcohol or poison was found on the internal organs of the
deceased. The viscera report is marked as Ex.P8. The final
opinion given by the Doctor [PW10] is marked as Ex.P10.
3.7. The Deputy Superintendent of Police, Keeranur
[PW12] conducted the further investigation and visited the
place of occurrence on 12.07.2011. PW12, in the presence
of witnesses PW4 PW5, prepared the observation mahazar
[Ex.P2] and rough sketch [Ex.P12] at about 12.50 pm and
recovered a Plastic Cane [MO1] in the presence of very
same witnesses, under a cover of mahazar Ex.P4. After
getting a copy of the dying declaration, PW12 altered the
Sections into 498A and 306 SectionIPC and prepared the alteration
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report [Ex.P13]. In conclusion of the investigation, PW12
laid the charge sheet as against the appellants / accused
for the commission of offence under Sections 498A and Section306
IPC.
4. On the side of the prosecution, as many as 12
witnesses were examined; 13 documents were marked and
1 material object was produced.
5. The available evidences from the prosecution side
are as follows:
i) PW1 is the brother of the deceased and the author
of the complaint [Ex.P5]. But, he was treated as hostile.
ii) PW2 is the mother of the deceased and she was
treated as hostile witness.
iii) PW3 is the neighbour of the deceased and she did
not support the case of the prosecution.
iv) PW4 is the witness to observation mahazar and she
was treated as hostile witness.
v) PW5 is the witness to observation mahazar.
vi) PW6 is the Sub Inspector of Police, who lodged
the case in Crime No.135 of 2011 for the offence under
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Section 174 Cr.P.C.
vii) PW7 is the learned Judicial Magistrate No.1,
Trichy, who recorded the dying declaration [Ex.P7] of the
deceased.
viii) PW8 is the Constable, who handed over the body
of the deceased along with requisition letter to the
Medical Officer for postmortem and after postmortem,
handed over the dead body to the relatives of the
deceased.
ix) PW9 is the Junior Scientific Officer, Trichy, who
conducted the chemical analysis on the internal organs of
the deceased and he opined that no alcohol or any other
poison was detected. The Visera report is marked as Ex.P8.
x) PW10 is the Doctor, who conducted the postmortem.
xi) PW11 is the Revenue Divisional Officer, Trichy,
who conducted the inquest and the preliminary
investigation. Her report is marked as Ex.P11.
xii) PW12 is the Deputy Superintendent of Police, who
conducted the further investigation. In conclusion of the
investigation, PW12 altered the Sections and filed the
final report.
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6. After the prosecution evidence was closed, the
incriminating materials were put to the accused under
Section 313 Cr.P.C. and the accused denied the same.
Though the accused stated that there are witnesses to
support their case, no defence witness was examined. In
conclusion of the trial, the learned trial Judge, though
acquitted the appellants under Section 306 IPC, has
convicted them under Section 498A IPC. As against the
same, the appellants have preferred this appeal.
7. Heard Mr.V.Kathirvelu, learned Senior Counsel for
Mr.B.Jameel Arasu, learned Counsel appearing for the
appellants and Ms.S.Bharathi, learned Government Advocate
(Crl. Side) appearing for the respondent / State.
8. The learned Senior Counsel appearing for the
appellants contended that all the witnesses, other than
the official witnesses, have turned hostile, including the
mother and brother of the deceased and the case of the
prosecution solely rests upon the dying declaration
[Ex.P7] of the deceased recorded by the learned Magistrate
[PW7]. But, even in the dying declaration, there is no
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specific overtact as against the appellants. According to
the learned Senior Counsel, the deceased, on account of
frustration that her husband intended to go abroad by
leaving her, has took such an extreme step. He would
further submit that though in the dying declaration, the
deceased has stated that her own brother has also
assaulted her, his name was not found in the charge.
Therefore, the learned Senior Counsel prays for allowing
the present appeal.
9. Per contra, the learned Government Advocate (Crl.
Side) appearing for the State / respondent would submit
that the prosecution has established their case beyond
reasonable doubt. Though the material witnesses have
turned hostile, their case has been proved through the
dying declaration of the deceased. The learned Judicial
Magistrate [PW7], before recording the dying declaration,
has obtained a certificate from the duty Doctor as to the
mental condition of the deceased. Thereafter, the learned
Magistrate, after satisfying himself as to the physical
and mental state of the deceased, has recorded the dying
declaration and has also read out the contents to the
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deceased and got her signature. The duty Doctor has also
certified at the end that the deceased was fully conscious
and in a fit state of mind throughout the recording of the
dying declaration. Therefore, the learned Government
Advocate (Crl. Side) prays for dismissal of this appeal.
10. This Court has paid it’s anxious consideration to
the rival submissions and also to the materials placed on
record.
11. The husband of the deceased, namely, Rajkumar,
used to work in Singapore and it is the case of the
prosecution, there was a strained relationship between the
deceased and her in-laws / the appellants herein. After
the return of her husband, the deceased complained him
about the harassments faced by him and he, in turn, has
convinced her that he would talk to his family. In the
interregnum period, the said Rajkumar got his return
ticket to Singapore confirmed and he informed this
development to his wife / the deceased. He further
convinced her that since he already talked to his family,
there would not be any problem. But, apprehending that if
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her husband leave India to Singapore, her in-laws / the
appellants would harass her, she committed suicide when
she and her husband were alone in the house.
12. Since the marriage took place in the year 2007
and the deceased committed suicide within four years from
the date of marriage, the Revenue Divisional Officer,
Trichy [PW11] has conducted enquiry and inquest over the
body of the deceased. The Revenue Divisional Officer,
Trichy, in conclusion of her enquiry, has opined that
there is no demand of dowry, however, on account of
frustration that her husband intended to go back to
Singapore, she committed suicide. The report of the
Revenue Divisional Officer is marked as Ex.P11.
13. In the complaint [Ex.P1] as well as before the
Revenue Divisional Officer and also during trial, none of
the witnesses have stated that these appellants have
subjected the deceased to cruelty. But, they have been
convicted under Section 498A IPC, based on the dying
declaration recorded from the deceased. The relevant
portion from the dying declaration [Ex.P7] is extracted as
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follows:
“Or;rh; obuapdpq; goj;Js;nsd;. fy;ahzk; Mfp 4 tUlk; MdJ.
g[Ud; btspapy; nghdt[ld; khkpahh; khkdhh; bfhLikgLj;jpdhh;fs;.
bfhGe;jdhh; moj;jhh;. vd; mz;zDk; moj;jhd;. g[Urd; rpq;fg;g{h; nghd
gpwF khkdhh; khkpahh; bfhLik gLj;jpdhh;fs;. rpq;fg;g{h; nghf ntz;lhk; vd
g[Urdplk; brhd;ndd;. ehnd kz;bzz;ida; tpl;L jP itj;J bfhz;nld;.”
14. No doubt, conviction can be imposed based on
dying declaration alone, provided the same is found to be
reliable. It is to be borne in mind that in the case of
dying declaration, the accused does not have a right to
cross examine the maker, so as to elicit the truth, as
happens in the case of other witnesses. Therefore, when a
dying declaration is suspicious, it should not be relied
upon without having corroborative evidence.
15. As stated supra, none of the witnesses, either
before the Revenue Divisional Officer or before the trial
Court, have stated that the deceased was harassed or
subjected to cruelty by the appellants. The Revenue
Divisional Officer has also given her final opinion that
there was no suggestion for making out an offence of
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cruelty punishable under Section 498A IPC. The only
evidence available is the dying declaration recorded from
the deceased.
16. In the dying declaration, the deceased has stated
that her brother has also beaten her. But, his name was
not found part in the charges. In this regard, the
explanation offered by the prosecution is that there was
no incriminating materials available that the brother was
residing with the deceased’s husband’s family and that he
subjected his sister to cruelty. But then, there is no
materials available on record to show that the deceased
was subjected to cruelty by the appellants herein, other
than the fact they used to reside together.
17. There is no materials available on record to show
as to when the appellants have subjected her to cruelty or
assaulted her. The parents as well as the brother of the
deceased, both in the complaint and statements before the
trial Court as well as before the trial Court, have stated
that the deceased committed suicide on account of
frustration that her husband intended to go abroad. Apart
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from that, they have not stated about any incident wherein
the appellants have subjected the deceased to cruelty and
has also assaulted her.
18. Curiously, the husband of the deceased was not
examined before the trial Court. Had he been examined and
he deposed in favour of the prosecution, then the entire
prosecution case would stand on a different footing. In
the absence of any materials to corroborate the dying
declaration, this Court is of the view that the
conviction, based on the dying declaration alone, is not
sustainable.
19. In view of the foregoing discussions, this Court
is inclined to interfere with the impugned judgment passed
by the learned Sessions Judge, Mahila Court, Pudukkottai,
in S.C.No.103 of 2012, dated 27.12.2013.
20. In fine,
– This Criminal Appeal is allowed;
– The conviction and sentence imposed by the learned
Sessions Judge, Mahila Court, Pudukkottai, in S.C.No.103
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of 2012, dated 27.12.2013, are set aside;
– The appellants are acquitted of the charges framed
against them;
– Fine amount, if paid, shall be refunded to the
appellants; and bail bonds shall stand terminated.
Index :Yes/No 19.09.2019
Internet :Yes/No
gk
To
1.The Sessions Judge,
Mahila Court, Pudukkottai.
2.The Inspector of Police,
Illuppur Police Station,
Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer, Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
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B.PUGALENDHI, J.
gk
Crl.A(MD)No.15 of 2014
19.09.2019
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