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Ravi vs State Represented By The on 20 December, 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.12.2018

CORAM:

THE HONOURABLE Mr.JUSTICE M.DHANDAPANI

Crl.A.No.569 of 2008

Ravi .. Appellant/Accused

Vs

State Represented by the
Deputy Superintendent of Police,
Neyveli Thermal Police Station,
Cuddalore District.
Crime No: 256/20017 .. Respondent/Complainant

PRAYER: Criminal Appeal filed under section 374(2) of the Criminal
Procedure Code, to set aside the findings, judgement of conviction and
sentence passed by the learned Sessions Judge (Mahila Court) Cuddalore
dated 22.07.2008 in S.C.No.135/2008 holding him guilty of offences U/s
304(B) IPC and sentenced him to undergo 7 years RI and U/s 498A IPC
and sentenced him to undergo 3 years RI and also to pay fine of Rs.5,000
and in default to undergo 3 months RI.

For Appellant : Mr.M.C.Swamy

For Respondent : Mr.R.Ravichandran
Government Advocate (Crl.side)

JUDGMENT

This criminal appeal has been filed by the appellant/sole accused

against the Judgment of conviction and sentence passed by the learned
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Sessions Judge (Mahila Court), Cuddalore dated 22.07.2008 made in

S.C.No.135/2008.

2.The brief facts of the prosecution case are as follows:-

P.W.1 is the adoptive father of the deceased. P.W.2 is the

mother of the deceased. P.W.3 is the brother of the deceased. The

marriage between the appellant and deceased was arranged by their

parents. Before marriage, there was betrothal on 13.08.2007. At that

time, the appellant demanded 20 sovereigns of gold jewels. However,

P.W.1 agreed to give 10 sovereigns of jewels and instead of motorcycle

P.W.1 was willing to give Rs.30,000/- as cash. After one month of

betrothal, the marriage was solemnised at Thiruvanthipuram

Devanathaswami Temple. At the time of marriage, P.W.1 gave 8

sovereigns of jewels to his daughter and two sovereigns of jewels to the

accused and gave a sum of Rs.20,000/- for purchasing motor cycle and

agreed to give Rs.10,000/- within a month. After the marriage, the

deceased and appellant lived at Neyveli. Thereafter, they came to P.W.1’s

house thrice. When the deceased came for third time, the deceased told

that the appellant demanded Rs.10,000/-. Since the agreed amount of

Rs.10,000 was not given, the appellant abused and harassed the

deceased continuously, thereby, the deceased had taken the extreme step

of committing suicide by hanging herself in the matrimonial house, in

respect of which, P.W.1 lodged the complaint Ex.P1.
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3.P.W.12 Head Constable received the complaint Ex.P1 from
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P.W.1 and registered a case in Crime No.256 of 2007 under section

174(3) of Cr.P.C. Ex.P.11 is the printed F.I.R. Thereafter, on

16.10.2007, the matter was handed over to P.W.13-Inspector of Police,

Investigating Officer. The Investigating Officer took up the case for

investigation and went to the place of occurrence, prepared observation

mahazar Ex.P12 and drew a rough sketch Ex.P13 and recovered material

objects MO1 and MO2 two pieces of polyester shawl and he has also

conducted inquest over the dead body of the deceased in the presence of

witness and issued inquest report as Ex.P9. After examining the material

objects and other witnesses, the offence was altered into under Sections

498A and 304B IPC. The Alteration report is marked as Ex.P15.

4.P.W.13 took up the case for further investigation and arrested

the accused on 08.01.2008. Thereafter, he laid a final report as against

the accused for the said offences. On appearance of the accused before

the lower Court, the copies of the relevant documents were furnished to

the accused under Section 207 of Cr.P.C., and on a perusal of the records,

as it is revealed that the offence involved in this case is exclusively triable

by the Court of Sessions, the lower Court has committed the case records

to the Principal District and Sessions Court, Cuddalore under Section 209

Cr.P.C., and thereafter this case has been made over to Sessions Court

for further proceedings as per law.

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5.Based on the above materials, the trial Court framed the
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charges for the offences under Sections 498A and 304B of IPC against the

accused and the accused denied the same. In order to prove the charges,

on the side of prosecution P.W.1 to P.W.13 were examined, Exhibits P.1 to

P.15 were marked and MO1 series were marked.

6.When the trial Court examined the accused under section

313(1)(b) of Cr.P.C., in respect of incriminating materials available

against him, he denied the complicity in the crime and pleaded innocence.

However, he did not examine any witnesses and not marked any

documents.

7.The trial Court, after considering the oral and documentary

evidence, found the accused guilty of the offences under Sections 498A

and 304B IPC and accordingly convicted the accused under Section

498(A) and 304(B) IPC and sentenced him to undergo rigorous

imprisonment for three years and to pay a fine of Rs.5,000/- in default to

undergo three months rigorous imprisonment and to undergo rigorous

imprisonment for seven years, respectively. The sentences imposed on

the accused were ordered to run concurrently. Challenging the said

conviction and sentence, the appellant has preferred this appeal.

8.Heard learned counsel for the appellant and the learned
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Government Advocate (Crl.side) for the respondent.
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9.The learned counsel for the appellant/accused would submit

that there is no material whatsoever available on record to prove the

charges either under Section 498A or under Section 304B IPC against the

accused. Ex.P.1 complaint is totally contradictory to the evidence of

P.W.1 to P.W.4. Admittedly, the deceased committed suicide at

matrimonial house and no evidence is available as if, the accused

instigated or harassed the deceased to commit suicide. In the present

case, the appellant’s father was also examined as prosecution witness as

P.W.7 and he clearly deposed there is no quarrel in the family with regard

to the dowry demand and the appellant’s family members never

demanded for any dowry from the deceased family. Hence, the

prosecution has not proved the case beyond reasonable doubt. However,

the trial Court convicted the accused, which is unsustainable.

10.In support of his contentions, the learned counsel for the

appellant relied upon the following decisions of the Hon’ble Supreme

Court:

i) (2017) 1 Supreme Court Cases 101 (Baijnath and

others Vs. State of Madhya Pradesh),

ii) (2011) 11 Supreme Court Cases 517 (Shindo Alias

Sawinder Kaur and Another Vs. State of Punjab) and
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iii) (2013) 4 Supreme Court Cases 131 (Bakshish Ram and
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Another Vs. State of Punjab)

11.Per contra, the learned Government Advocate appearing for

the respondent submitted that though P.W.1 is not a direct evidence

available to prove the guilt, however, P.W.2 and P.W.3 are crucial

witnesses to establish the prosecution case. The evidence of P.W.2

clearly indicates that the accused harassed her daughter for demanding

Rs.10,000/- continuously and the same was corroborated by the evidence

of P.W.3 who is the brother of the deceased. On the date of occurrence,

P.W.3 received a call from the deceased and the deceased asked P.W.3

for arranging Rs.10,000/- and further conveyed to her brother that

accused was harassing the deceased demanding a sum of Rs.10,000/-.

The evidence of P.W.4 is corroborated by the evidence of P.W.2 and

P.W.3. RDO report also clearly revealed that there was a dowry

harassment and the presumption under Section 113B of the Indian

Evidence Act is in favour of the deceased and this Court may presume

that there was a cruelty by demanding a sum of Rs.10,000/-. Therefore,

the judgment of the trial Court need not be interfered with.

12.In the light of the above submissions, now it has to be

analysed as to whether the prosecution has proved the guilt of the

accused beyond all reasonable doubt.

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13.The evidence of P.W.1/the adoptive father of the deceased,

indicates that at the time of marriage, 10 sovereigns of gold were given

as “Seedhana” and he agreed to pay Rs.10,000/-. After the marriage,

both the deceased and accused lived together at Neyveli and the accused

and deceased has come to P.W.1’s house two or three times, which

clearly indicates that P.W.2 conveyed that the accused was demanding

Rs.10,000/- and likewise, the deceased also conveyed the same to P.W.3-

brother. Thereafter, P.W.1 heard the news that his daughter committed

suicide by hanging and thereafter, P.W.1 gave Ex.P1 complaint to the

police. On a perusal of the evidence of P.W.1, he did not indicate that

there was cruelty or harassment by the appellant.

14.On a perusal of the evidence of P.W.2 and P.W.3, it is seen

that P.W.2 is the mother of the deceased and her evidence is also

corroborated by the evidence of P.W.1 with regard to money and other

“Seedana” articles and also endorsed that the accused and her daughter

visited her house for two to three times and when her daughter came to

her house for third time, she informed that Rs.10,000/- was demanded by

the accused and the accused left her daughter in her house for getting

valid amount and therefore, she and her daughter came to

Chithiraichavadi and demanded Rs.10,000/- from her brother

Ezhumalai(P.W.4) and he also agreed to give the money after two days.

Thereafter, the deceased daughter went along with the accused and
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assured to pay the amount within two days.

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15.P.W.3 is the brother of the deceased. His evidence indicates

that the accused abused the deceased for Rs.10,000, however, in his

cross-examination, he denied the same, which clearly indicates that the

accused had not harassed the deceased.

16.On a perusal of the evidence of P.W.4, it is clear that the

deceased and accused came to their house and demanded balance

amount of Rs.10,000/-, for the purpose of marriage and one acre of land

was sold in favour of P.W.4 and he paid only Rs.90,000/- and balance

Rs.10,000/- was not paid, for which the deceased and P.W.2 demanded

the balance amount and he agreed to pay within two days. The evidence

of P.W.3 and P.W.4 is contrary in nature and not corroborated with each

other.

17.Admittedly, P.W.1 is hearsay evidence and there is no

corroboration in the evidence of P.W.1, P.W.2, P.W.3 and P.W.4. When

that being the position, even assuming that there was a quarrel, in which

the deceased was abused, however, there is no material placed before the

Court with regard to cruelty or harassment. Hence, this Court is of the

view that the action of the appellant may not amount to harassment or

instigation forcing the deceased to commit suicide.

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18.On a perusal of the decisions relied upon by the learned
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counsel appearing for the appellant, in the case of dowry death, there is a

presumption under Section 113B of the Indian Evidence Act, which arose

against the accused. However, the presumption is rebuttable to the effect

that the prosecution first dispel out the ingredients of the offence and

then presumption can arise. This Court finds that the death was an

unnatural one and had taken place within seven years of the marriage.

However, the other ingredients with regard to the demand of dowry,

harassment, cruelty or instigation the deceased to commit suicide, had

not been proved.

19.The very similar issue was dealt with by the Hon’ble Apex

Court in the decision reported in (2017) 1 SCC 101 (Baijnath and

others Vs. State of Madhya Pradesh), in which, it was held as

follows:-

”24.The evidence on record and the competing
arguments have received our required attention. As the
prosecution is on the charge of the offences envisaged in
Sections 304-B and 498-A of the Code, the provisions for
reference are extracted hereunder:

“304-B. 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
http://www.judis.nic.in connection with, any demand for dowry, such death shall
be called “dowry death”, and such husband or relative shall
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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.

498-A. 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 purposes of this section,
“cruelty” means-

(a) any wilful 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 to meet such demand.”

25.Whereas in the offence of dowry death defined
by Section 304-B of the Code, the ingredients thereof are:

(i) death of the woman concerned is by any burns
or bodily injury or by any cause other than in normal
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circumstances, and
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(ii) is within seven years of her marriage, and

(iii) that soon before her death, she was
subjected to cruelty or harassment by her husband or any
relative of the husband for, or in connection with, any
demand for dowry.

The offence under Section 498-A of the Code is
attracted qua the husband or his relative if she is
subjected to cruelty. The Explanation to this Section
exposits “cruelty” as:

(i) any wilful 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 of health (whether
mental or physical), or

(ii) 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 to meet such demand.

26.Patently thus, cruelty or harassment of the
lady by her husband or his relative for or in connection
with any demand for any property or valuable security as a
demand for dowry or in conncetion therewith is the
common constituent of both the offences.

27.The expression “dowry” is ordained to have
the same meaning as in Section 2 of the Dowry Prohibition
Act, 1961. The expression “cruelty”, as explained,
contains in its expanse, apart from the conduct of the
tormentor, the consequences precipitated thereby qua the
lady subjected thereto. Be that as it may, cruelty or
harassment by the husband or any relative of his for or in
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connection with any demand of dowry, to reiterate, is the
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gravamen of the two offences.

28.Section 113-B of the Act enjoins a statutory
presumption as to dowry death in the following terms:

“113-B. Presumption as to dowry death.- When
the question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has 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.

Explanation.- For the purposes of this section,
“dowry death” shall have the same meaning as in Section
304-B of the Indian Penal Code (45 of 1860).”

20.Further in the decision of the Hon’ble Apex Court reported in

(2011) 11 SCC 517 (Shindo Alias Sawinder Kaur and Another Vs.

State of Punjab) it is held as follows:-

“9.We also notice that the High Court was dealing with
an appeal against acquittal. Undoubtedly, in a case of dowry
death under Section 304-B, a presumption of Section 113-B,
Evidence Act, does not arise against the accused. However, the
presumption is relatable to the fact that the prosecution mush
first spell out the ingredients of the offence and then only can a
presumption arise. In the present case we find that the death
was an unnatural one and had taken place within sever years of
the marriage but the third ingredients that any demand for
dowry had been made soon before the death has not been
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proved. In this view of the matter the presumption under
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Section 113-B of the Evidence Act cannot be raised.”

21.Further in the decision of the Hon’ble Apex Court reported in

(2013) 4 SCC 131 (Bakshish Ram and Another Vs. State of

Punjab) it is held as follows:-

“20.Another relevant aspect to be noted is that it was
Appellant 1, husband of the deceased who took the deceased to
the hospital and it was he who informed the police as well as
parents of the deceased. It is also brought to our notice that
he did not make any attempt to run away from the place of
occurrence.”

22.On perusal of the above decisions and considering the over

all evidence and fact of dowry, there is no cogency in the evidence of the

prosecution witnesses and the prosecution has not discharged its burden

in proving the case beyond reasonable doubt.

23.However, in the present case, no family member of the

accused was implicated in the above said offence. Only the appellant

alone is implicated in the offences.

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24.On a perusal of the oral and documentary evidence, it is clear

that there was no quarrel between the appellant or deceased as alleged

by the prosecution. Considering the over all evidence and the facts, this

Court has no other opinion but to come to the conclusion that the

prosecution has not proved the case beyond reasonable doubt. Hence,

the conviction and sentence imposed by the Court below need

interference and the same is liable to be set aside.

25.In the result, the criminal appeal is allowed. The conviction

and sentence as against the appellant/accused in the judgment dated

22.07.2008 in S.C.No.135 of 2008 passed by the learned Sessions Judge

(Mahila Court), Cuddalore, are set aside. The appellant/accused is

acquitted from the charges under Sections 498A and 304B of IPC. The

fine amount, if any, paid by him is ordered to be refunded to him. The

bail bonds executed by him, shall stand terminated/discharged.

20.12.2018

Speaking Order/Non Speaking Order

Index : Yes/No

Internet : Yes/No

AT
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To

1.The Deputy Superintendent of Police,
Neyveli Thermal Police Station
Cuddalore District.

2.The Sessions Judge (Mahila Court),
Cuddalore.

3.The Government Advocate (Crl.side)
High Court of Madras.

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M.DHANDAPANI,J.

AT

Crl.A.No.569 of 2008

20.12.2018

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