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S.Venkatachalam-vs-State By Assistant Commissioner on 20 November, 2009

Madras High Court S.Venkatachalam-vs-State By Assistant Commissioner on 20 November, 2009

DATED: 20.11.2009

CORAM:

THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

Crl.A.No.1791/2002

S.Venkatachalam Appellant

Vs

State by Assistant Commissioner of Police

Law and Order, Saidapet Range, Saidapet Respondent

Prayer:- This Criminal Appeal is filed against the judgement dated 12.12.2002 passed by the Court of Mahalir Neethimandram at chennai in SC.No.213/1999.

For Appellant : Mr.K.Asokan, SC for

Mr.M.Nirmal Kumar

For Respondent : Mr.Hasan Mohammed Jinnah, APP

ORDER

This Criminal Appeal is filed against the judgement dated 12.12.2002 passed in SC.No.213/1999 by the Court of Mahalir Neethimandram, Chennai, acquitting the Appellant under Section 304B, but convicting and sentencing the Appellant for the offence under Section 498A of IPC to undergo three years Rigorous Imprisonment and to pay a fine of Rs.5000/- in default to undergo Simple Imprisonment for three months.

2. The case of the Prosecution is as follows:-

a. The deceased Amudha is the wife of PW.1 Baskaran and daughter-in-law of the accused/appellant. PW.2 is the brother, PW.3 is the mother and PW.4 is the maternal uncle of the deceased. PW.5 is the servant working in the house of the accused. The marriage between PW.1 and the deceased took place on 2.2.1994 and a male child was born to them on 28.1.1995. The deceased was living at Rangarajapuram along with PW.1 and his parents. The accused demanded 150 sovereigns of jewels at the time of marriage. The father of the deceased agreed to give 130 sovereigns of jewels. But, at the time of marriage, PW.2 gave only 110 sovereigns of jewels and the remaining 20 sovereigns was agreed to be given subsequent to the marriage. b. When the deceased delivered a male child, PW.2 gave 8 sovereigns of jewels to the child and a sum of Rs.1 lakhs was given to the accused. The accused demanded a Car for his son, but PW.2 deposited a sum of Rs.40,000/- in the name of PW.1 to purchase a motor cycle. The accused did not send the deceased to her parents house for not giving the balance of jewels. On 6.4.1996, the father of the deceased was informed that the deceased committed suicide. PW.2 went to the house of the deceased along with his father and the deceased was found hanging in a room and the deceased was taken to Vijaya Hospital, where she was declared dead. c. On receipt of complaint Ex.P1 from PW.1 on 6.4.1996, PW.11 Sub Inspector of Police attached to J3 Ashok Nagar Police Station registered a case in Cr.No.827/1996 and prepared FIR Ex.P7. Based on Ex.P7, PW.12, the Assistant Commissioner of Police of Saidapet took up investigation and went to the place of occurrence and prepared observation mahazar Ex.P9 and a rough sketch Ex.P8 and seized nylon saree MO.1 under a mahazar and examined the witnesses and recorded their statements. d. The FIR was also sent to the (Tahsildar) Executive Magistrate for conducting inquest. PW.9 Revenue Divisional Officer on receipt of requisition, directed the Tahsildar of Egmore-Nungambakkam Division to conduct inquest and the Tahsildar also conducted inquest and submitted a report Ex.P4, stating that the deceased was subjected to dowry harassment, to PW.9 and PW.9 sent the final report Ex.P5 to the Assistant Commissioner of Police. e. Based upon the requisition from the Tahsildar, PW.10 Dr.Govardhan conducted postmortem over the body of the deceased and Viscera of the deceased was sent to the Toxicology Department for analysis. Ex.P3(A) is the report given by the Forensic Science Department, stating that no poison was detected in the viscera and PW.10 opined in Ex.P6 Postmortem certificate that the deceased died of asphyxia due to hanging. f. PW.13 Periaiah, the Superintendent of Police took up further investigation and examined one Jayaraman, the witnesses and the Doctors who conducted postmortem and recorded their statements and altered the case into one under Section 304B of IPC and arrested the accused and sent him for remand. PW.13 also examined the Tahsildar, Revenue Divisional Officer and other witnesses and recorded their statements and filed a final report against the accused on 28.8.1996.

3. The case was taken on file in SC.No.213/1999 on the file of the Court of Mahalir Neethimandram at Chennai. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 13 witnesses (Pws.1 to 13) and also relied on documents (Exs.P1 to P10) and one Material Object. On the side of the defence, T.Chitti Babu had been examined as DW.1 and no document was marked.

4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false.

5. The court below, after hearing the arguments advanced on either side and looking into the materials available, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.

6. This court heard the submissions of the learned counsel on either side and also perused the material records placed.

7. Primarily, the Prosecution relied upon the version of PW.2, the brother of the deceased, PW.3 the father and PW.4 the maternal uncle of the deceased. The stand of the Appellant all thtough was that the evidence of those witnesses does not inspire confidence and since the refusal by the Appellant and his son PW.1 of the proposal of PW.3 in bringing up the child by him had angered them, and deposed against the Appellant before the court.

8. Mr.K.Asokan, the learned counsel for the Appellant argued that no such allegation was made by the said witnesses, especially PW.2 who was all along present with PW.1 in the Police Station while giving the complaint did not say that the deceased was tortured by the Appellant for not satisfying the demand of balance of 20 sovereigns of jewels. PW.2 has stated in his cross examination that he was present with his father PW.3 while PW.1 lodged the complaint to the police. If really there had been a demand by the Appellant and refused to send her to the marriage function of her relative as the demand was not met by PW.3, definitely PW.3 would not have omitted to state those facts to the Police. The reasoning given by the Trial Court that the contents of Ex.P1 were not made known to PW.2 and PW.3 and there is no evidence to indicate that they had knowledge about the complaint cannot be accepted, as PW.2 and PW.3 are not illiterate persons. Immediately after the occurrence, PW.1 accompanied by his brother in law (PW.2) and father in law (PW.3) had gone to the Police Station and lodged a report. The said omission by the said witnesses cannot be lightly considered, as any close relative to the deceased would only tend to accuse the husband or in laws of the deceased once they come to know that the deceased had died in abnormal circumstances.

9. It is to be noted that there are lots of inconsistencies and improvements in their evidence. In so far as the evidence of cruelty is concerned, it is seen that there is no direct evidence of any witnesses having seen the deceased being ill treated. I am conscious of the fact that normally such a direct evidence may not be available. It transpires from the evidence of PW.2 to PW.4 that three instances and circumstances are shown against the Appellant. It is no doubt true that the evidence discloses that there was negotiation for giving of 150 sovereigns and they finally agreed for 130 sovereigns at the time of marriage of the deceased with PW.1. PW.3 had presented 110 sovereigns and agreed to give the balance of 20 sovereigns later. The deceased had given birth to a male child and it is admitted by PW.2 that as per their custom, jewels were presented to the child by PW.3. That apart, PW.3 had voluntarily given Rs.1 lakh which was deposited in the name of the deceased and her husband. There was no demand from the Appellant and there is no dispute over it.

10. Even regarding the motor cycle given to PW.1, though there was a demand, but there was no harassment or ill-treatment of the deceased, as PW.3 had deposited the amount in PW.1’s name to enable him to purchase the motor cycle. According to PW.2 and PW.3, the deceased and her husband were invited for the marriage of her relative and she also told them that they would attend the said marriage. But, they would say that since the balance of jewels were not given, the Appellant refused to send them to the marriage which had resulted in the commission of her suicide. The above said allegation is made for the first time before the court and the same had not been stated to the investigating officer. During the cross examination, PW.12 investigating officer was confronted with all such statements with a suggestion that no such statement was made by them before the investigating officer at the time of investigation. Though PW.2 and PW.3 denied to such a suggestion, but PW.12 admitted about such omission in the statement under Section 161 of Code of Criminal Procedure of PW.2 and 3. Hence, certainly this is a case of material omission, as rightly contended by the learned senior counsel for the Appellant.

11. It is pertinent to mention here that the Trial Court held that on the evidence available on record, the presumption under Section 113B of the Indian Evidence Act was not attracted. Accordingly, the Trial Court acquitted the Appellant of the offence punishable under Section 304B of IPC, but at the same time relying upon the testimony of PW.2 to PW.4 the Trial Court however held that the Appellant was guilty of the offence punishable under Section 498A of IPC.

12. The only evidence to bring home the charge under Section 498A of IPC is that of PW.2 to PW.4. In their evidence, they had deposed that since PW.3 did not fulfill the demand of balance of jewels, he refused permission to the deceased to attend PW.4’s daughter marriage and that was the reason which made the deceased to commit suicide. They deposed that they came to know this from the deceased who told them when PW.3 contacted her over phone. Apart from the above said statement attributed to the deceased, none of the said witnesses had spoken anything which they had seen directly in so far as torture and harassment to the deceased are concerned.

13. Now the question that arises for consideration is as to whether the above said statement attributed to the deceased could be used as evidence for entering upon a finding that the Appellant subjected the deceased to cruelty as contemplated under Section 498A of IPC.

14. In Inderpal Vs. State of MP [2001-10-SCC-736], the Honourable Supreme Court considered the said question and laid as below:-

""4. We will consider at first the contention as to whether there is any evidence against the appellant which can be used against him for entering upon a finding that he subjected Damyanti to cruelty as contemplated in Section 498-A, IPC. PW-1 father of the deceased and PW-8 mother of the deceased have stated that Damyanti had complained to them of her plight in the house of her husband and particularly about the conduct of the appellant. PW-4 sister of the deceased and PW-5 a relative of the deceased have also spoken more or less on the same line. Exhibit P-7 and Exhibit P-8 are letters said to have been written by Damyanti. In those two letters reference has been made to here life in the house of her in-lawn and in one of the letters she said that her husband had subjected her to beating.

5. Apart from the statement attributed to the deceased none of the witnesses had spoken of anything which they had seen directly. The question is whether the statements attributed to the deceased could be used as evidence in this case including the contents of Exhibits P-7 and P-8 (letters).

6. Before deciding that question we have to point out that the High Court came to a conclusion that the allegation that she committed suicide was not substantiated. A dying declaration was recorded by the Executive Magistrate in which the deceased had stated that she got burns accidentally from a stove. If that be so, death could not be the result of either any harassment or any cruelty which she was subjected to. In this context we may point out that the State has not challenged the finding of the High Court that death of Damyanti was not due commission of suicide.

7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A, IPC disjuncted from the offence under Section 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned."

15. In the instant case, the evidence of PW.2, PW.3 and PW.4, about what the deceased had told them against the Appellant about not sending her to attend the marriage function since the demand was not fulfilled cannot be made admissible under Section 32(1) of the Evidence Act in so far as offence under Section 498A of IPC is concerned. Further in this case, there is no material and cogent evidence. The material omission as pointed out supra in the evidence of PW.2, PW.3 and PW.4 discredits their testimony and in that perspective, the reliance placed by the Trial Court on the said evidence stands totally misplaced. The evidence placed on record by the Prosecution does not fulfill the requirements of Section 498A of IPC and therefore, the conviction and the sentence imposed on the Appellant by the court below cannot be sustained.

16. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the court below in SC.No.213/2002 are set aside and the Appellant is acquitted of the charges levelled against him. It is seen from the records that the Appellant had been enlarged on bail by this court. The bail bond if any executed by the appellant shall stand terminated and the fine amount if any paid is ordered to be refunded to him.

Srcm

To:

The Public Prosecutor, High Court,

Madras

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