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Sadayappa Kumar-vs-Coimbatore District on 30 October, 2008

Madras High Court Sadayappa Kumar-vs-Coimbatore District on 30 October, 2008

DATED: 30.10.2008

CORAM:

THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN

CRIMINAL APPEAL No. 1090 of 2002

and

Crl.M.P.No.7106 of 2002.

Sadayappa Kumar ..Appellant/accused

-vs-

State rep. by

Inspector of Police

Tirupur North Police Station

Crime No.174 of 2001

Coimbatore District .. Respondent/complainant

This appeal has been filed against the Judgment made in S.C.No.162 of 2002 dated 16.7.2002 on the file of the Additional District and Sessions Judge(Fast Track Court No.V), Coimbatore at Tiruppur. For appellant : : Mr.Ganesh Rajan

For respondent : : Mr.J.C.Durai Raj

Government Advocate(crl)

JUDGMENT

This appeal has been filed against the Judgment in S.C.No.162 of 2002 on the file of Additional District and Sessions Judge(Fast Track Court No.V) Coimbatore at Tiruppur. The accused is the appellant herein. The charge against the accused is that the deceased who was the wife of the accused made an attempt to committing suicide by hanging on 16.2.2001 at about 8.00 a.m., and she died in the hospital at 3.45p.m., on the same day. The cause for the deceased to take such an extreme step of committing suicide by hanging, according to the prosecution, is that the deceased was subjected to cruelty and harassment by her husband the accused insisting her to bring dowry and scooter from her parents house. The accused has been charged under Sections 498A and 304B IPC r/w 4 of Dowry Prohibition Act. The trial Court has acquitted the accused for the charge under Section 4 of the Dowry Prohibition Act on the ground that the said charge was not proved against the accused.

2. After following the procedure of furnishing copies under Section 207 Cr.P.C, and after framing relevant charges as stated above, the learned trial Judge questioned the accused for which the accused pleaded not guilty.

3. Before the trial Court, P.Ws 1 to 19 were examined. Exs. P1 to P.11 and M.O.1 to M.O.3 were marked. No oral evidence was let in on the side of the accused. After going through the evidence both the oral and documentary, the learned trial Judge has convicted the accused under Section 304B and under Section 498A of IPC and sentenced to undergo seven years rigorous imprisonment under Section 304B and sentenced to undergo three years rigorous imprisonment under Section 498 A of IPC besides slapping with a fine of Rs.5000/- with default sentence which necessitated the appellant to prefer this appeal.

4. I have heard Mr. Ganesh Rajan, the learned counsel for the appellant and Mr.J.C.Durai Raj, the learned Government Advocate for the respondent and carefully considered their submissions

5. Ex P1 complaint was preferred by P.W.1, the father of the victim girl Kavitha @ Lavanya. In Ex P1, there is absolutely no complaint for any demand of dowry by the accused either to the deceased or to the complainant after or before the marriage which admittedly took place two years prior to the occurrence. Section 304B of IPC reads as follows: "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 connection with, any demand for dowry such death shall be called"dowry death", and such husband or relative shall be deemed to have caused her death Explanation: For the purposes of this sub-section"dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act 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." Charge under Section 4 of Dowry Prohibition Act has held to be not proved by the learned trial Judge. Against the said findings, there is no appeal has been preferred by the Government.

6. Now let us concentrate whether the victim was subjected to any cruelty immediately before her death. In the complaint, Ex P1, the complainant has stated that as per the doctor, who had treated the deceased Kavitha @Lavanya in S.R.Nursing home (private hospital), informed him that even though the victim was unconscious , she repeated the word "vd;id bfhy;whnd". But a perusal of the first information report which has reached the Court on 17.2.2001 at about 3.15p.m., ie., very next day of the date of occurrence does not contain the fact that the complainant was informed by the doctor at S.R.Nursing Home that the victim in an unconscious stage had uttered the word "bfhy;[email protected] @bfhy;[email protected] whereas in the original complaint which is dated 16.2.2001, P.W.1 has narrated that after the victim is being admitted at S.R.Nursing Home, the doctor who had treated her had informed him that the victim in an unconscious stage has uttered @bfhy;[email protected] But the said complaint even though lodged on 16.2.2001 had reached the Court only on 5.3.2001 ie 17 days after lodging of the complaint. There is no explanation forthcoming from the side of the prosecution for the inordinate delay in sending the complaint to the Court . There is also no explanation forth coming from the prosecution why the complaint was not send along with the first information report(Ex P7) which had reached the Court on the very next day of the complaint(Ex P1) ie., on 17.2.2001.

7. It is seen from the evidence of P.W.5, who had entered the house of the victim soon after the occurrence at 8.00 a.m., on the date of occurrence, had deposed the fact that the accused alone had shouted for help and only after hearing his distress call for help, she went inside the house and saw the accused holding the legs of the victim thus preventing her from committing suicide by hanging. With the help of P.W.7 the owner of the house, the victim was rescued and the knot tied in M.O.1 saree used by the accused for hanging was removed.

8. According to the post-mortem report ExP4 marked through P.W.10 the post mortem doctor, Hyoid bone of the victim was found in tact. P.W.12 is the Government doctor at Tiruppur Government Hospital. Ex P5 is the wound certificate issued by her to the victim. Even though in her deposition P.W.12 would state that she would see a lacerated injury around the neck of the victim . In Ex P5, she has stated that there was only a contusion mark was seen encircling the upper part of front of neck. Ex P6 is the confession statement of the accused.

9. After the marriage, the appellant/accused went to Bombay in connection with his avocation and he was there for nearly five months and thereafter he returned to Tiruppur and lived along with his wife and parents for nearly two months and at the instance of his deceased wife , he was leading separate family from 28th May 2000 and that a day before the occurrence ie., on 15.2.2001, he had asked his wife to take photo print copy from the negatives with her father. But she had not obliged to that and even on 16.2.2001, he had again insisted his wife to take the said photo print negatives. But when he returned from telephone booth, he saw his wife bolting the door of the house inside and he kicked opened the door and went inside the room saw his wife hanging, immediately raised an alarm for help holding her hand with the help of the owner of the house P.W.7 and P.W.5 brought her down and took her to the private Hospital viz., S.R.Nursing Home and thereafter to Government hospital and later Ramakrishna Private Hospital. So after the occurrence, it is not in evidence that the accused had ranaway from the place of occurrence. P.W.1,P.W.3 ,P.W.4 and P.W6 say that the accused was all along present during the treatment was given to the victim girl in various hospitals including the Government Hospital.

10. There is absolutely no averment regarding the demand of dowry by the accused in the first information report. There is no explanation forthcoming from the prosecution for the delay in sending the complaint along with the first information report to the Court which goes to the root of the case of the prosecution. The benefit of doubt shall certainly inure in favour of the accused. Under such circumstances, the Judgment of the trial Court in S.C.No.162 of 2002 is liable to be set aside and the same is hereby set aside.

11. In the result, this appeal is allowed and the Judgment in S.C.No.162 of 2002 on the file of Additional District and Sessions Judge( Fast Track Court No.V) Coimbatore at Tiruppur is set aside and the accused is acquitted from all the charges. The bail bond stands cancelled. The fine amount , if any, paid shall be refunded to the appellant/accused. Connected Crl.M.P.No.7106 of 2002 is closed. 30.10.2008

index:yes

Internet: yes

sg

To

1. The Additional Sessions Judge(Fast Track Court No V),Coimbatore at Tiruppur

2. The Principal District Judge, Coimbatore.

3. The Judicial Magistrate No.1, Tiruppur.

4. T-do- through the Chief Judicial Magistrate, Coimbatore

5. The Superintendent of Central Prison, Vellore.Coimbatore

6. The Public Prosecutor, High Court, Madras-104

7. The Inspector of Police,Tirupur North Police Station, Coimbatore

8. The District Collector,Coimbatore

9. The Director General of Police, Mylapore, Madras

A.C.ARUMUGAPERUMAL ADITYAN,J

sg

Crl.A.No.1090 of 2002

30.10.2008

Pre delivery Judgment made in Crl.A.No.469 of 2003

THE HONOURABLE

MR.JUSTICE M.KARPAGA VINAYAGAM

The Honourable Mr.Justice A.C.Arumugaperumal Adityan

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