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Periasamy-vs-State By Inspector Of Police on 18 February, 2010

Madras High Court Periasamy-vs-State By Inspector Of Police on 18 February, 2010

DATED: 18.02.2010

Coram:

THE HONOURABLE Ms. JUSTICE R.MALA

Criminal Appeal No. 330 of 2003

Periasamy .. Appellant

vs.

State by Inspector of Police

Valapady Police Station

Salem District. .. Respondent

Prayer: Criminal Appeal is filed under Section 374 (1) Cr.P.C. against the judgment in S.C.No. 161 of 1993 dated 30.01.2003 on the file of the learned II Additional Sessions Judge, Salem. ——- For Appellant : Mr.Sethurathinam, Sr.Counsel

for Mr.K.Kuppusamy

For Respondent : Mr. I. Paul Noble Devakumar

Government Advocate (Crl.side)

——-

J U D G M E N T

This Criminal Appeal has arisen out of the judgment passed by the II Additional Sessions Judge, Salem, on 30.01.2003 in S.C. No.161 of 1993, convicting the appellant/first accused under Section 304B IPC and sentencing him to undergo seven years rigorous imprisonment.

2. The case of the prosecution in a nut-shell is as follows:-

(i) The deceased Madeswari is the daughter of PWs 1 and 2-Manickam and Panjali. On 25.05.1988, she was given in marriage to the appellant/first accused/Periyasamy. First accused/Periyasamy, is her husband. Second accused/Rajammal is mother-in-law of deceased Madeswari. Third accused/Sundarambal is and fourth accused/Suseela are sister-in-laws of deceased Madeswari. The father of first accused is Venkatachalam and he is PW2’s senior paternal uncle’s son. Since, Venkatachalam’s father died, when Venkatachalam was in tender age, he was brought up by PW2’s father and gave properties. PW2/Panjali is only daughter of her father. The properties of her father is also with first accused father Venkatachalam. Since, Venkatachalam is the cousin brother of PW2-Panjali, so, she gave her daughter to Venkatachalam’s son Periyasamy/appellant/first accused.

(ii) At the time of marriage, 10 sovereigns of gold jewels and Rs.10,000/- worth Shridhana properties has been given. After the marriage, the deceased Madeswari is living in first accused house at Vilaripalayam Village. During marriage, first accused family has presented 7 = sovereigns of "Thali Kodi". After marriage, both Madeswari and her husband Periyasamy/accused lived together happily for nearly five or six months. After that, the accused are alleged to have harassed the deceased Madeswari for getting more dowry. When Madeswari got conceived, she was asked to eat thinai (jpiz) rice to abort the child. Accused are alleged to have removed the 10 sovereigns of gold jewels given by PWs 1 and 2 and 7 = sovereigns of "Thali Kodi" presented by first accused family and they demanded 20 sovereigns more and they assaulted her and caused head injury to her.

(iii) The deceased Madeswari intimated the same to PW1-Manickam. PW1 had taken her daughter Madeswari to PW7-Dr.Premkumar. Since, the accused were committing the act of cruelty against the deceased Madeswari, she had gone to the extent of giving a complaint-Ex.P2 dated 17.05.1989 before PW15-Natarajan, Deputy Superintendent of Police, Salem. After enquiry, on 26.05.1989, PW15 advised Madeswari to go and live with her husband and the matter has been compromised. Then, PW2-Panjali had accompanied deceased Madeswari and accused to their house at Vilaripalayam Village. But, the accused are alleged to have not purchased the ticket for deceased Madeswari and PW2. Then, PW2 has taken the taken the ticket and they gone to the house of accused. Even then, PW2 and deceased Madeswari were not treated properly and they were not provided with food in the accused house. Per contra, they were given utensils for cooking purpose and later, they told them not to use the utensils. The very next day, they had gone for agriculture work along with other coolie workers, but, neither PW2 nor deceased Madeswari were provided with food. Then, PW2 purchased Idlies and gave it to her daughter Madeswari. On seeing the cruelty committed to deceased Madeswari, PW2 had taken her daughter Madeswari to her house.

(iv) After twenty days, the relatives of accused along with first accused came to PW1’s house and they told them to send deceased Madeswari to the matrimonial home. After compromising the matter, the deceased Madeswari went to the matrimonial home. After 1 = months, PWs 1 and 2 received the information that her daughter Madeswari was taken to the hospital for snake bite. Then, they rushed to the hospital, but, they were informed that deceased Madeswari, died. Then, PW1 gave a complaint-Ex.P1 to PW11-Govindasamy, Sub-Inspector of Police.

(v) PW11-Govindasamy received Ex.P1-complaint and registered a case in Cr.No. 96/1990 under Section 498A IPC and Section 4 of Dowry Prohibition Act and Section 174 Cr.P.C. and he prepared FIR-Ex.P9 and he intimated the same to PW14-Sub-Collector and higher official PW12-Balasubramaniam, Deputy Superintendent of Police, who, inturn had gone to the place of occurrence. PW14-Jagmohan Singh Raju, Sub-Collector, conducted the inquest in the presence of Panchayatdar and examined the witnesses and prepared inquest-Ex.P12. Then, he gave a requisition to conduct the autopsy. PWs 8 and 17-Dr. Mahja been and Dr.Shanmugavadivu respectively, on receipt of the requisition-Ex.P4 from PW14 conducted the post-mortem and noted the following injuries:- "Injuries:-

1.Laceration about 5 cm in length just above the right arm.

2.Both labia majora swollen.

3.Contusion in the aspect of upper 1/3rd right & left thigh.

4.Echymosed and peeled skin on the upper arm.

5.Blackening of face and swollen face present.

6.Contusion in the upper part of the chest.

7.A wound scar about 4 cm in the left parietal region.

8.Nasal bones intact. Both thigh bones no fracture. Both shoulder joint opened and thighs. Anterior dislocation of the left shoulder. No fracture of clavicle. Left eye ball protruded out, bleeding in nose present. Tongue bitten protruded out. …" PWs 8 and 17- Dr. Mahja been and Dr.Shanmugavadivu gave Ex.P6-Post-Mortem Certificate and in that, they have opined that the deceased would have died about 36 to 42 hours prior to Post-Mortem. PW14-Jagmohan Singh Raju, Sub-Collector, has given a report Ex.P11.

(vi) PW12-Balasubramaniam, Deputy Superintendent of Police, had gone to the place of occurrence and prepared an observation mahazar-Ex.P3 in the presence of witnesses and rough sketch-Ex.P10. PW13-Sundarrajan, Deputy Superintendent of Police, received the case diary from PW12-Balasubramaniam and he examined the witnesses and he sent a requisition-Ex.P7 to Judicial Magistrate No.3, to send the hyoid bones and viscera to chemical examination, which inturn was sent to chemical examination and the chemical report is Ex.P5, in which, it was stated that no poisonous substance has been found and PW17-Dr.Shanmugavadivu has given a final opinion that no fracture made out. PW16-Kothandaraman, Deputy Superintendent of Police, had taken up the matter for further investigation and he examined Dr.Shanmugavadivu -PW17 and concluded the investigation and filed the chargesheet against the accused on 16.11.1992. (vii) The learned Sessions Judge after following the procedure framed the charges against accused 1 to 4 under Section 302 read with 34 IPC, but, they pleaded not guilty. To prove the charges levelled against accused 1 to 4 the prosecution examined the witnesses PWs 1 to 17 and marked Exs. P1 to P13. After the completion of the evidence on the side of prosecution, the accused 1 to 4 were questioned under Section 313 Cr.P.C. as to the incriminatory circumstances found in the evidence of the prosecution witnesses and the accused 1 to 4 flatly denied them as false. The Sessions Judge after hearing the arguments advanced on both sides by his judgment dated 10.02.1994 convicted the first accused under Section 304B IPC and sentenced him to undergo seven years rigorous imprisonment and acquitted all the accused under Section 302 IPC read with 34 IPC.

(viii) Against that, the appellant/first accused preferred an appeal before this Court in Crl.A.No. 154 of 1994, in which, this Court has given a direction to give an opportunity to the first accused to rebut the presumption under Section 113(B) of the Evidence Act and remanded the case to the Sessions Court to proceed against the first accused from the stage of defence evidence. The Sessions Court after framing charge under Section 304B against the appellant/first accused, examined DWs 1 and 2 and considering the oral and documentary evidence, on 30.01.2003, the appellant/first accused was found guilty under Section 304B IPC and sentenced him to undergo seven years rigorous imprisonment. Against that, the present appeal has been preferred by the first accused.

3. Challenging the conviction and sentence passed by the Sessions Court, the learned counsel for the appellant would contend that there is no evidence for demand of dowry, that too, soon before her death, in connection with the marriage. He further submits that the evidence of PW3-Chellammal, an eye witness, is not trustworthy and reliable. The report of RDO also not proved that there is a demand of dowry. He relied upon the decisions reported in 1976 Crl.L.J. 1985, State of Orissa vs. Mr.Brahmananda Nanda; 1998 Crl.L.J. 630, Niranjan Mohapatra and another vs. State of Orissa; 1997 Crl.L.J. 1927, Sham Lal vs. State of Haryana and (2007) 2 MLJ (Crl.) 376, Biswajit Halder @ Babu Halder and others vs. State of West Bengal and prayed for the acquittal of the accused and allowing of the appeal.

4. Per contra, the learned Government Advocate (Criminal Side) would submit that PWs 1 and 2 have categorically deposed before the court about the factum of demand of dowry. PW3-Chellammal, is an eye witness and she has categorically stated that the deceased Madeswari was subjected to dowry harassment. To substantiate his contention, he relied upon the decision reported in (2007) 1 Supreme Court Cases (Cri) 166, Ram Badan Sharma vs. State of Bihar, and prayed for the dismissal of the appeal.

5. The admitted case of the prosecution is that PW2-Panjali’s father and first accused father Venkatachalam are brothers. Since, Venkatachalam’s father died, when Venkatachalam was young, PW2-Panjali’s father alone had taken care of Venkatachalam. PW2’s father also gave some properties to Venkatachalam. Since, Venkatachalam is the cousin brother of PW2-Panjali, so, she gave her daughter Madeswari to Venkatachalam’s son Periyasamy/appellant/first accused. PW1-Manickam is none other than husband of PW2-Panjali. PW4-Natesan is brother-in-law of deceased Madeswari and son-in-law of PWs 1 and 2. PW5-Thangaraj is brother-in-law of PW4-Natesan. The marriage between appellant/first accused/Periasamy and deceased Madeswari has been performed on 25.05.1988 and at the time of marriage, 10 sovereigns of gold jewels and Rs.10,000/- worth Shridhana properties has been given. After the marriage, the deceased Madeswari is living in first accused house at Vilaripalayam Village. During marriage, first accused family has presented 7 = sovereigns of "Thali Kodi".

6. Since, the charge has been framed against the appellant/first accused under Section 304B IPC, now, this Court has to decide, whether the Sessions Court is correct in holding that the first accused is guilty under Section 304B IPC.

7. At this juncture, it is appropriate to incorporate the five mandatory ingredients of Section 304(B) IPC, which reads as under:-

i.The death of a woman must have been caused by burns or bodily injury or other wise than under normal circumstances;

ii.Such death must have occurred within seven years of her marriage;

iii.Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.

iv.Such cruelty or harassment be for or in connection with demand of dowry.

v.Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

8. The first ingredient is that the death of a woman must have been caused by other wise than under normal circumstances. Here, as per the evidence of PW17-Dr.Shanmugavadivu, a final opinion has been given stating that deceased Madeswari died due to head injury, because of skull fracture. So, the death is not in a normal circumstance. So, the first ingredient of Sec. 304B is attracted.

9. The marriage has been celebrated on 25.05.1988 and she died on 10.03.1990. So, the unnatural death of deceased Madeswari has happened within seven years from the date of marriage. So, the second ingredient of Sec. 304B is attracted.

10. Now, this Court has to decide, whether the woman has been subjected to cruelty or harassment by her husband or by relatives of her husband in connection with demand of dowry, soon before her death.

11. Here, PWs 1 and 2 are parents of the deceased Madeswari and PW3-Chellammal, is an eye witness and she is a native of appellant’s place. The Sessions Court has mainly focussed on the evidence of PW3-Chellammal. The learned counsel for the appellant would contend that her evidence cannot be looked into. To substantiate his contention, the learned counsel for the appellant relied upon the decision reported in 1976 Crl.L.J. 1985, State of Orissa vs. Mr.Brahmananda Nanda, wherein, the Supreme Court observing that the evidence of a person claiming to be eye-witness and the witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable and therefore, the evidence is untrustworthy, has held as under:- "Where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused."

12. Considering the above citation along with PW3-Chellammal’s oral evidence, in her cross-examination, she has fairly conceded that after the incident there is no talking terms between the family of accused and this witness. While considering the evidence of PW3, she has stated that she witnessed when the deceased Madeswari was assaulted by the appellant/first accused and his mother and sisters. But, she never stated that deceased Madeswari was assaulted for demanding of dowry. In her chief-examination, she has stated that on Saturday at 6.00 p.m. to go to her relatives house, she came out of the house and at that time, she heard the alarm of deceased Madeswari and therefore, she had gone there, where she witnessed the appellant/first accused assaulting the deceased Madeswari, but, she has not stated that they are assaulting the deceased Madeswari by demanding dowry. Even, if this Court accept the evidence of PW1-Manickam, there is no evidence to show that after compromise, she was taken to in-laws, she was subjected to cruelty for demanding of dowry in connection with the marriage, soon before her death. PWs 1 and 2 also have not stated that after her daughter Madeswari has been taken to her in-laws house, after compromise, she was subjected to dowry demand. In his chief-examination, PW1 has stated that after his daughter Madeswari was taken by her husband and others to the matrimonial home, his wife/PW2 had visited the house of accused and she intimated that now she was some how better and happy. PW1, in his chief-examination has stated as under:- "…vd; kfis mDg;gpa gpwF 10 ehl;fs; fHpj;J vd; kidtpia vjphpfs; tPl;Lf;F mDg;gp ghu;j;J tUk;go mDg;gpndd;/ vd; kidtp ngha; ghu;j;J tpl;L Vnjh Xust[f;F ey;ygoahf ,Uf;fpwJ vd;W brhy;yp vd; kidtp vd; tPl;Lf;F jpUk;gp te;jhs;////"

13. But, within a week, Madeswari has died. In her chief-examination, PW2-Panjali never stated that the deceased Madeswari was harassed and treated cruelly by demanding of dowry in connection with marriage, soon before her death. PW2, in her evidence, she has also not stated that after deceased Madeswari returned to her matrimonial home, she was subjected to dowry demand. So, there is no evidence before the Court to show that she was subjected to harassment and cruelty by demanding of dowry, in connection with marriage, soon before her death. PW4-Natesan is none other than another son-in-law of PWs 1 and 2.

14. While perusing Ex.P2-Complaint dated 17.05.1989, in that, it was stated that the appellant/first accused wanted to remarry, since she refused to give consent, she was assaulted and attacked by the accused. So, she gave a complaint-Ex.P2 before PW15-Natarajan, Deputy Superintendent of Police, on 17.05.1989. In last paragraph, it was stated that the deceased Madeswari may be rescued from the dowry demand and to recover 10 sovereigns of jewels belonging to her and also to protect her life. In paragraph 4 of complaint, the deceased Madeswari has stated that the accused are very particular to abort the pregnancy and to execute the same, they forced her to eat "Thinai (jpiz) rice" and she was assaulted by her in-laws and her husband/first accused/appellant, which shows that besides the dowry demand, the appellant/first accused harassed her with a view to abort the pregnancy and also sought for permission to remarry another girl. Then only, she left the matrimonial home and gave a complaint Ex.P2. Then, PW15-Natarajan,Deputy Superintendent of Police, compromised the matter with the panchayatdar and she was sent back to accused home and PW2-Panjali, mother of deceased Madeswari, also accompanied them. As the deceased Madeswari and PW2 were not treated properly in the accused house, they returned back to their house.

15. After 20 days, the appellant/first accused and others came to the house of PWs 1 and 2 and they are alleged to have taken deceased Madeswari to the matrimonial home in the month of May or June, and thereafter, she died on 10.03.1990, which is nearly after nine months and inbetween nine months, there is no evidence to show that the appellant/first accused demanded dowry, which forced her to commit suicide. But, here, there is evidence to show that she committed suicide. PW17-Dr.Shanmugavadivu has given an opinion that the death is due to head injury.

16. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellant reported in 1998 Crl.L.J. 630, Niranjan Mohapatra and another vs. State of Orissa, wherein the Orissa High Court has held as under:- "9. Nextly, I have no reason to differ from the proposition laid down in the case of Keshab and Shyama Lal (supra) referred by Mr.Mohapatra that the proximity of time between the alleged ill-treatment and time of death is a highly relevant factor and is an essential and necessary evidence for proof of a case of dowry death."

17. In 1997 Crl.L.J. 1927, Sham Lal vs. State of Haryana, the Supreme Court has held as under:-

"Dowry death, presumption, evidence by prosecution of only fact that there was dispute between parties regarding dowry and that wife was sent back to her parent’s home and was again taken bak to nuptial home after ‘panchayat’ whih was held to resolve dispute Such events happening ten to fifteen days prior to occurrence. No evidence, however, that she was treated with cruelty or harassed with demand for dowry during period between her taking back to home and her tragic end. Presumption for dowry death cannot be raised. Accused cannot be convicted under Section 304-B. However, basing on evidence of father of deceased and her dying declaration, accused convicted under Section 498-A."

18. In (2007) 2 MLJ (Crl.) 376, Biswajit Halder @ Babu Halder and others vs. State of West Bengal, the Supreme Court has held as under:-

"10. The basic ingredients to attract the provisions of Section 304B are as follows:-

(1)The death of a woman should be caused by burns or bodily injury or other wise than under normal circumstances;

(2)Such death should have occurred within seven years of her marriage;

(3)She must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(4)Such cruelty or harassment should be for or in connection with demand of dowry.

11. A longside insertion of Section 304B in I.P.C., legislature also introduced Section 113B of Evidence Act, which lays down when the question as to whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had 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.

12. Explanation appended to Section 113B lays down that "for the purpose of this section ‘dowry death’ shall have the same meaning as in Section 304B of I.P.C.".

13. If Section 304B I.P.C. is read together with Section 113B of the Evidence Act, a comprehensive picture emerges that if a married woman dies in an unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under "dowry death" and there shall be a presumption against the husband and the relatives.

14. In this case we find that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. There is also no finding in that regard. This deficiency in evidence proves fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304B I.P.C. It has to be shown in addition that such cruelty or harassment was for or in connection with the demand for dowry. See. Kanchy Ramchander v. State of A.P. (1996) SCC (Crl.) 31. Since the prosecution failed to prove that aspect, the conviction as recorded cannot be maintained."

19. The learned Government Advocate (Criminal Side) relied upon the decision reported in (2007) 1 Supreme Court Cases (Cri) 166, Ram Badan Sharma vs. State of Bihar, wherein the Supreme Court has held as under:- "35. There are three main ingredients of this offence: (a) that, there is a demand of dowry and harassment by the accused on that count; (b) that, the deceased died; and (c) that, the death is under unnatural circumstances within seven years of the marriage. When these factors were proved by reliable and cogent evidence, then the presumption of dowry death under Section 113-B of the Evidence Act clearly arose. The aforementioned ingredients necessarily attract Section 304-B IPC. Section 304-B is a special provision which was inserted by an amendment of 1986 to deal with a large number of dowry deaths taking place in the country. In the instant case, if the circumstances of the case are analysed on the touchstone of Section 304-B IPC, all the three basic ingredients of Section 304-B IPC are present in the instant case. There has been persistent demand of dowry and harassment, humiliation and physical violence and beating by the husband and her in-laws. The deceased died under unnatural circumstances within seven years of the marriage.

36. In our considered opinion, the trial court has properly analysed the evidence and justly convicted the appellants under Section 304-B IPC. The High Court also examined the entire evidence on record and came to the same conclusion. No infirmity can be found with the impugned judgment of the High Court.

20. From a reading of the above citation, it is seen in that case the deceased was in a good condition, the deceased had gone to the house of accused Ram Badan Sharma for taking prasad. This is indicative of the fact that till then the deceased was physically in good health. DW1 further stated that after taking the prasad, she started having acute pain in stomach and thereafter, she died. Admittedly, the deceased’s parents were admittedly not even informed about this unfortunate incident. Only on 20.11.1993, they learnt about it from a barber and then they rushed to Lodipur. On reaching Lodipur, they heard that the deceased was administered poison in the prasad.

21. But, here, there is no such evidence available. Because after she was taken to the matrimonial home, nearly for nine months she was in the matrimonial home. Once PW2-Panjali, mother of deceased Madeswari, also visited the house of accused, she intimated the fact that any how her daughter Madeswari was some what better and happy now. But, PWs 1 and 2 never deposed that after compromise under Ex.P2-Complaint, there was a demand of dowry. In such circumstances, I am of the opinion as per the dictum of Apex Court that soon before death, the deceased Madeswari was not subjected to cruelty and harassment to meet out the demand of dowry in connection with marriage. Since, there was no evidence for demand of dowry, I am of the opinion that the Sessions Court has committed an error in convicting the first accused under Section 304B IPC and therefore, the sentence is also liable to be set aside and the appellant/first accused is entitled to acquittal.

22. In fine,

this Criminal Appeal is allowed.

The judgment of conviction and sentence passed by the Sessions Court are hereby set aside.

The appellant/first accused is acquitted and he is exonerated from all the charges levelled against them.

The fine amount, if paid by the appellant/first accused is ordered to be refunded.

The bail bond, if executed by the appellant /first accused shall stand cancelled.

18.02.2010

paa

Index :Yes

Internet:Yes

To

1. II Additional Sessions Judge,

Salem.

2. Inspector of Police

Valapady Police Station

Salem District.

3. The Public Prosecutor

Chennai.

R.MALA,J

paa

Crl. A. No. 330 of 2003

18.02.2010

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