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Ponnar vs State Represented By on 16 August, 2019

Crl.A.(MD)No.99 of 2011

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 16.08.2019

CORAM:

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

Crl.A(MD)No.99 of 2011

Ponnar … Appellant

Vs

1.State represented by,
the Deputy Superintendent of Police,
Jeeyapuram Sub Division,
Tiruchirappalli.

2.The Inspector of Police,
Jeeyapuram Police Station,
Tiruchirappalli District.
(Crime No.53 of 2008) … Respondent

PRAYER: Criminal Appeal is filed under Section 374 of Cr.P.C., to
set aside the Judgment and Conviction dated 09.03.2011 by the
learned Sessions Judge, Mahila Court, Tiruchirappalli in S.C.No.85 of
2009 and acquit the appellant.

For Appellant : Mr.S.Deenadhayalan

For Respondents : Mr.A.Robinson
Government Advocate (Crl.side)

JUDGMENT

The appellant and his mother and his brother were tried

for the offences under Sections 498(A) and Section304B r/w 34 of SectionIPC in

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Crl.A.(MD)No.99 of 2011

S.C.No.85 of 2009 on the file of the Sessions Judge, Mahila Court,

Tiruchirappalli. By Judgment dated 09.03.2011, the appellant’s

mother and his brother were acquitted but the appellant alone was

found guilty of the offence under Sections 498(A) and Section304(B) of IPC

and sentenced to two years rigorous imprisonment and seven years

rigorous imprisonment respectively. Challenging the same, this

appeal came to be filed.

2.The prosecution case is that the appellant Ponnar got

married to Mahalakshmi on 27.08.2007. The appellant treated his

wife cruelly and also demanded additional dowry. Unable to bear

the harassment of the appellant, Mahalakshmi committed suicide by

hanging herself on 04.03.2008. In this regard, P.W.1- father of the

deceased lodged Ex.P1 Complaint before the Jeeyapuram Police

Station, leading to registration of FIR-Ex.P10 in Crime No.53 of

2008 for the offence under Section 304(B) of IPC. Investigation

was taken up and after completion of all the usual formalities, final

report came to be laid before the Judicial Magistrate No.3,

Tiruchirappalli against the appellant, his mother and his brother for

the offence under Sections 498A and Section304B r/w 34 of SectionIPC.

Cognizance of the offence was taken and the case was committed to

the Sessions Court in P.R.C.No.34 of 2008. The case was made

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Crl.A.(MD)No.99 of 2011

over to the Mahila Court, Tiruchirapalli for trial in S.C.No.85 of

2009. Charges were framed all the three accused. They pleaded

not guilty and claimed to be tried. The prosecution examined 17

witnesses and marked Ex.P1 to Ex.P13. M.O.1 and M.O.2 series

were also marked. On the side of the accused, three witnesses

were examined as D.W.1 to D.W.3. Ex.D1 and Ex.D2 were marked.

After considering the evidence on record, the learned trial Judge, by

the impugned Judge, acquitted the appellant’s mother and brother,

but convicted and sentenced the appellant as mentioned above.

Questioning the same, this appeal came to be filed.

3.The learned counsel appearing for the appellant confined

his arguments only to seeking acquittal in respect of the offence

under Section 304(B) of IPC. He submitted that he would not

challenge the finding of guilt in respect of the offence under Section

498A of IPC. But he only wanted substantial modification of the

punishment imposed on him. Section 304(B) of IPC could have

been invoked against the appellant only if it can be shown that soon

before her death, the appellant’s wife was subjected to cruelty and

harassment in connection with demand for dowry. A reading of the

evidence of P.W.1 would indicate that the appellant wanted his wife

to bring money from her parents to tide over the serious financial

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Crl.A.(MD)No.99 of 2011

crisis. Even according to P.W.1, the appellant told his wife that

since he is not having any income from his work, he wanted P.W.1

to bring some amount. The appellant wanted to shift to

Coimbatore, where, he was hopeful of getting work. But then, he

was not having any money to pay the rental advance. Therefore,

he wanted a sum of Rs.5,000/- which according to P.W.1, was

given to him. Whether making such demand would amount to

dowry or not is no longer res integra.

4.As rightly pointed out by the learned counsel appearing

for the appellant, the Hon’ble Supreme Court in the decision

reported in 2007 (1) MWN (Cr.) 30(SC) (Appasaheb and

another Vs. State of Maharashtra), held as follows:-

“9.Two essential ingredients of Section 304-B, apart
from others are:-

(i)death of woman is caused by any burns or bodily
injury or occurs otherwise than under normal circumstances,
and

(ii)woman is subjected to cruelty or harassment by
her husband or any relative of her husband for, or in
connection with any demand for “dowry”
The explanation appended to sub-section (1) of
Section 304-B, SectionIPC, says that “dowry” shall have the same
meaning as in Section 2 of Dowry Prohibition Act, 1961.

Section 2 of Dowry Prohibition Act reads as under:-

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Crl.A.(MD)No.99 of 2011

“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 a marriage to the other party to
the marriage; or

(b) by the parent of either party to a marriage or by
any other person, 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.

In view of the aforesaid definition of the word
“dowry” any property or valuable security should be given or
agreed to be given either directly or indirectly at or before or
any time after the marriage and in connection with the
marriage of the said parties. Therefore, the giving or taking of
property or valuable security must have some connection with
the marriage of the parties and a correlation between the
giving or taking of property or valuable security with the
marriage of the parties is essential. Being a penal provision it
has to be strictly construed. Dowry is a fairly well know social
custom or practice in India. It is well settled principle of
interpretation of Statute that if the Act is passed with
reference to a particular trade, business or transaction and
words are used which everybody conversant with that trade,
business or transaction knows or understands to have a
particular meaning in it, then the words are to be construed as
having that particular meaning. (See. Union of India Vs.
Garware Nylons Ltd., AIR 1996 SC 3509 and Chemicals and

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Crl.A.(MD)No.99 of 2011

Fibres of India Vs. Union of India, AIR 1997 SC 558). A
demand for money on account of some financial stringency or
for meeting some urgent domestic expenses or for purchasing
manure cannot be termed as a demand for dowry as the said
word is normally understood. The evidence adduced by the
prosecution does not therefore, show that any demand for
“dowry” as defined in Section 2 of the Dowry Prohibition Act
was made by the appellants as what was allegedly asked for
was some money for meeting domestic expenses and for
purchasing manure. Since an essential ingredient of Section
304-B, SectionIPC., viz., demand for dowry is not established, the
conviction of the appellants cannot be sustained.”

5.Applying the aforesaid ratio laid down by the Hon’ble

Supreme Court, going by the evidence of the prosecution witnesses,

one has to come to the conclusion that the appellant did not

demand any dowry as such from his in-laws. Therefore, on the

very face of it, Section 304(B) of IPC is not attracted. That apart,

as rightly pointed out by the appellant’s counsel, the deceased

appears to have been suffering from some kind of mental

depression. In the cross examination of P.W.1, a specific

suggestion had been put in this regard. Of-course, the father of the

deceased-P.W.1 denied the same. But then, the appellant had

examined as many as three witnesses to establish his defence.

D.W.1 is the Local Panchayat President. They have deposed that

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Crl.A.(MD)No.99 of 2011

two days prior to the occurrence, that is 02.03.2008, the deceased

hit herself against the lamppost and suffered injuries on her

forehead. She was taken to one Doctor-Kannan who examined the

woman and also gave treatment. The said Doctor Kannan was

examined as D.W.3. He had stated that the deceased Muthu

Lakshmi did not give proper answers when he questioned her.

D.W.2 is also another important witness. He had worked along with

the appellant at Coimbatore. He had deposed that the deceased

Muthu Lakshmi attempted to commit suicide at Coimbaotre and that

is why, they were asked to vacate the house by the house owner

and they returned to their native place thereafter. It is relevant to

note here that the marriage took place on 27.08.2007. Muthu

Lakshmi committed suicide on 04.03.2008. They were the residents

of Somarasempettai, Trichy. They had moved to Coimbatore for

better prospects. But then, they returned to their native place on

02.03.2008. This probabilises the statement made by D.W.2 in his

evidence. This Court wanted to know if in the postmortem, the

injuries suffered by Muthu Lakshmi on her forehead, was reflected.

The learned counsel appearing for the appellant drew my attention

to Ex.P8-Postmortem Certificate, in which, this injury have been

specifically noted. Therefore, I am satisfied that D.W.1 and D.W.3

are speaking the truth. At this stage, it is relevant to refer to the

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Crl.A.(MD)No.99 of 2011

decision of the Hon’ble Supreme Court reported in (2002) 1

Supreme Court Cases 351 (Munsi Prasad and others Vs.

State of Bihar). The Hon’ble Supreme Court held in the said

decision as follows:-

“3.Without attributing any motive and taking the
evidence on its face value, therefore, it appears that the
place of occurrence was at 400-500 yards from the place
of Panchayat and it is on this piece of evidence, the
learned advocate for the State heavily relied upon and
contended that the distance was far too short so as to be
an impossibility for the accused to be at the place of
occurrence- we cannot but lend concurrence to such a
submission a distance of 400-500 yards cannot possibly be
said to be “presence elsewhere”-it is not an impossibility to
be at the place of occurrence and also at the Panchayat
meet, the distance being as noticed above: the evidence
on record itself negates the plea and we are thus unable to
record our concurrence as regard acceptance of plea of
alibi as raised in the appeal. Before drawing the curtain on
this score, however, we wish to clarify that the evidence
tendered by the defence witnesses cannot always be
termed to be a tainted one by reason of the factum of the
witnesses being examined by the defence. The defence
witnesses are entitled to equal respect and treatment as
that of the prosecution. The issue of credibility and
trustworthiness ought to be attributed to the defence
witnesses on a par with that of the prosecution-a lapse on
the part of the defence witnesses cannot be differentiated

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Crl.A.(MD)No.99 of 2011

and be treated differently than that of the prosecution
witnesses.”

6.Merely because, D.W.1 to D.W.3 were examined on the

side of the defence, their testimonies cannot be put on a lower

pedestal. As held by the Hon’ble Supreme Court, their testimonies

are entitled to equal respect as that of the prosecution witness.

Thus, the appellant is entitled to be acquitted on both the grounds.

1.Section 304B of IPC is not attracted to this case.

2.The death of Muthu Lakshmi appears to be more

due to her mental depression rather than due to harassment

in connection with dowry demand.

7.Of-course, the decision cited by the learned counsel

appearing for the appellant reported in 2007 (1) MWN (Cr.)

30(SC) (Appasaheb and another Vs. State of Maharashtra),

will not come to the appellant’s rescue, while considering the

validity of his conviction under Section 498A of IPC. Section 498A

of IPC states that if the women had been subjected to cruelty, it is

an offence. The expression cruelty has been defined in the

explanation to Section 498A of IPC as false. The expression dowry

is not mentioned in Clause (b) of the explanation. Therefore,

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Crl.A.(MD)No.99 of 2011

technical or the narrow meaning that is formally attached to the

expression “dowry” cannot be imported into Section 498A of IPC.

The decision of the Hon’ble Supreme Court rendered in 2007 (1)

MWN (Cr.) 30(SC) (Appasaheb and another Vs. State of

Maharashtra), cannot come to the appellant’s rescue at all. In

this case, the prosecution had established beyond reasonable doubt

that the appellant had harassed his wife Muthu Lakshmi to bring

money from her parents. It is certainly an unlawful demand. It

may not amount to dowry within the technical meaning of the term.

But then, demanding money from the in-law is certainly an act of

cruelty falling within the purview of Section 498 A of IPC.

8.Having regard to the evidence on record and the

statutory definition, the learned counsel appearing for the appellant

submitted that he would not challenge the finding of guilt in respect

of the offence under Section 498A of IPC. He only wanted leniency

in the matter of punishment.

9.The occurrence had taken place way back in the year

2008. We are now in the year 2019. The appellants appears to

have re-married a few years back. Two children have been born to

the appellant through his second marriage. If the appellant is

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Crl.A.(MD)No.99 of 2011

sentenced to undergo a long term of imprisonment, certainly, it will

have a ruinous impact on his new family. Therefore, taking into

account all these mitigating aspects and also the fact that the

appellant demanded only to meet out his dire financial necessity,

the interest of justice will be served by reducing the sentence of

imprisonment from two years rigorous imprisonment to six months

rigorous imprisonment. It appears that the appellant had already

been in prison for about 65 days. The period of incarceration

already undergone by the appellant will be set off in terms of

Section 428 of Cr.P.C. The conviction and sentence imposed on the

appellant under Section 304(B) of IPC is set aside. The conviction

imposed on the appellant under Section 498(A) of IPC is confirmed.

The sentence is reduced to six months rigorous imprisonment.

10.With this modification, this criminal appeal is partly

allowed.

16.08.2019

Index : Yes/No
Internet : Yes/No
rmi

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Crl.A.(MD)No.99 of 2011

G.R.SWAMINATHAN, J.

rmi

To
1.The Deputy Superintendent of Police,
Jeeyapuram Sub Division,
Tiruchirappalli.

2.The Inspector of Police,
Jeeyapuram Police Station,
Tiruchirappalli District.

2.The Sessions Judge, Mahila Court, Tiruchirappalli.

Crl.A(MD)No.99 of 2011

16.08.2019

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