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Palanisamy vs State Rep. By on 19 September, 2019

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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Crl.A(MD)No.15 of 2014

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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Crl.A(MD)No.15 of 2014

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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Crl.A(MD)No.15 of 2014

B.PUGALENDHI, J.

gk

Crl.A(MD)No.15 of 2014

19.09.2019

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