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Sajahan-vs-State Represented By on 13 February, 2008

Madras High Court Sajahan-vs-State Represented By on 13 February, 2008

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 13/02/2008

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE S.PALANIVELU

CRL.A.(MD) No.362 of 2006

Sajahan .. Appellant

vs

State Represented by

Inspector of Police

Manapparai Police Station

Manapparai,

Trichy District

Crime No.923/2003 .. Respondent

Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge for Mahila Court, Tiruchirapalli, in S.C.No.171 of 2004 dated 17.9.2005.

!For Appellant … Mr.R.Anand

Amicus Curiae

^For Respondent … Mr.C.Daniel Manoharan

Additional Public Prosecutor

:JUDGMENT

(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)

This appeal challenges the judgment of the Mahila Court, Additional Sessions Division, Tiruchirapalli, made in S.C.No.171 of 2004 whereby the sole accused/appellant stood charged under Sections 498(A) and 302 of IPC and Sec.4 of the Dowry Prohibition Act.

2.On trial, he was found guilty as per the charge under Sec.302 of IPC and awarded life imprisonment along with a fine of Rs.1,000/- and default sentence. He was also found guilty under Sec.498(A) of IPC and awarded one year Rigorous Imprisonment. Hence, this appeal at the instance of the appellant.

3.The short facts necessary for the disposal of this appeal can be stated thus:

(a) P.W.1 is the father of the deceased Fathima. At the time of her marriage with the accused, sufficient jewels were given, and subsequently, the accused sold away the jewels. Under the circumstances, when they got the separate home, then and there, the accused was torturing her and exercising cruel treatment over her for further dowry. At one instance, P.W.1 gave Rs.5,000/-. P.W.4 is the owner of the house, where they were residing on rental basis. On the date of occurrence, i.e., 25.8.2003 at about 8.30 p.m., when P.W.4 came out from the house, he found the appellant walking outside his house. Thereafter, the accused informed to P.W.4 and others that she was found swooned. Then, all of them went inside the house. She was taken to the private clinic of P.W.2, the Doctor, in an autorickshaw. On examination, he declared her dead. It was informed to P.W.1, and the dead body was placed in the house of the parents of the accused.

(b) On coming to know about the same, P.W.1 came to the place of occurrence, found the dead body, proceeded to the respondent Police Station and gave Ex.P1, the report. On the strength of Ex.P1, the Inspector of Police, P.W.18, who was on duty at that time, registered a case in Crime No.923 of 2003 under Sec.174 of Cr.P.C. for suspicious death. The printed FIR Ex.P13, was despatched to the Court. Since she died within a short span of time, the FIR was sent to the Revenue Divisional Officer for the purpose of inquest and other proceedings.

(c) P.W.21, the Deputy Superintendent of Police of the Division, Manapparai, on receipt of the copy of the FIR, proceeded to the spot, made an inspection in the presence of witnesses and prepared an observation mahazar, Ex.P7, and a rough sketch, Ex.P18.

(d) P.W.19, the Revenue Divisional Officer, on receipt of the copy of the FIR, proceeded to the spot and conducted inquest on the dead body of Fathima in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P14. The Investigating Officer, P.W.21, also assisted the R.D.O. at the time of inquest.

(e) The dead body of Fathima pursuant to the requisition, Ex.P6, given by the Investigating Officer, was subjected to postmortem by P.W.5, the Senior Assistant Surgeon, attached to the Government Hospital, Manapparai. The Doctor has given her opinion in Ex.P3, the postmortem certificate, that the deceased would appear to have died of asphyxia 16-20 hours prior to autopsy. (f) Pending the investigation, the accused was arrested by the Investigating Officer on 28.8.2003 at 10.00 a.m., when he gave a confessional statement, which was recorded. The admissible part of his confession is marked as Ex.P9, pursuant to which the towel, M.O.1, was recovered under a cover of mahazar, Ex.P10. The accused was sent for judicial remand. The Investigator altered the case to Sections 498A and 302 of IPC. The express report, Ex.P19, was sent to the Court. On completion of the investigation, the Investigator filed the final report.

4.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 21 witnesses and also relied on 19 exhibits and 1 material object. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. He flatly denied them as false. Only one witness was examined on his side as D.W.1, and one document was marked as Ex.D1. On completion of the evidence on both sides, the lower Court heard the arguments advanced and scrutinised the materials available, and then, it found the accused/appellant guilty under Sections 302 and 498(A) of IPC and awarded the punishment referred to above, but acquitted the accused in respect of the charge under the Dowry Prohibition Act. Hence, this appeal.

5.Advancing the arguments on behalf of the appellant, the learned Counsel Mr.R.Anand, would submit that in the instant case, the prosecution has miserably failed to prove either of the charges; that as far as the charge of murder was concerned, there was no direct evidence to be offered by the prosecution; that the circumstances which were placed by the prosecution, were not proved; that apart from that, the circumstances placed, were also not sufficient; that the only evidence was that of P.W.4; that according to P.W.4, he was the owner of the house, where they were residing on rental basis, and on the date of occurrence i.e., 25.8.2003 at about 7.30 or 8.30 p.m., when he came out from the house, he found the accused walking outside the house; that except this, there is no evidence available; that merely because he found the accused walking outside the house, it cannot be inferred that he was responsible for the death; that the defence plea was not considered by the lower Court; that in the instant case, according to the accused, he was actually outside the house, and when he got into the house, he found her swooned, and she actually attempted to commit suicide, and on seeing this, he informed to P.W.3 and others, and all of them gathered, and it was he who took her to the hospital of P.W.2 where she was declared dead, and further, he has taken her to the house of his parents; that under the circumstances, he had no role to play or complicity in the offence; that there was no need for him to take her to the hospital and thereafter to his parents’ house; and that the conduct of the accused would indicate that he could not have participated in the commission of the offence, and he would not have any role to play.

6.Added further the learned Counsel that in the instant case, the Doctor’s opinion was not in favour of the prosecution; that she has clearly pointed out at the time of the cross-examination that nothing was found to indicate that there was strangulation by using a towel, and the hyoid bone was also found intact; that under the circumstances, all would go to show that it is only an act committed by her, and she was actually found swooned; that following the same, the death has occurred for which he is in no way responsible; that as far as the other charge under Sec.498-A of IPC was concerned, the evidence adduced by the prosecution, was actually not sufficient; that there were occasions where some demands were made; but, in or about the time of occurrence, there was no demand for which purpose there was no evidence at all, and under the circumstances, the judgment of the lower Court has got to be set aside.

7.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

8.It is not in controversy that the daughter of P.W.1 one Fathima, met with an unnatural death. Following the inquest made by the Investigating Officer, the dead body was subjected to postmortem. P.W.5, the Doctor, who conducted autopsy, has given evidence before the Court, and the postmortem certificate has also been marked. Thus, it would be indicative of the fact that Fathima met with an unnatural death.

9.In order to substantiate the first charge that there was a dowry demand, and he exercised harassment and cruelty over her, which according to the prosecution, would attract the penal provision of Sec.498-A IPC, P.W.1, who is the father of the deceased, has not only been examined, but also other witnesses have been examined, and they are P.Ws.4, 8, 9 and 13. P.W.4 is the owner of the house, where they were residing on rental basis. They have all spoken to the fact that there was often quarrel between the spouses, and at that time, he has been demanding dowry. P.W.1 has spoken to the fact that there were occasions where she has come over to his house, and she has told him about the demand made by the accused, and on one occasion, he has given Rs.5,000/- also. Thus, it can be well stated that the prosecution has put forth sufficient evidence to prove that charge.

10.As far as the second charge of murder was concerned, the occurrence has taken place on 25.8.2003 at about 8.00 p.m. The prosecution had no direct evidence to offer. But, it rested its case on the circumstances. The Court is mindful of the caution made by law that all the circumstances placed, must be sufficient completely making a chain and pointing to the hypothesis that no one else except the accused, could have committed the offence. In the instant case, the following circumstances are noticed by the Court.

11.It is an admitted position that at the time of the occurrence, the accused and the deceased were residing in the house of P.W.4 on rental basis. It is also candidly admitted by the accused that he was, at the time of occurrence, in that house. According to P.W.4, the accused was found walking outside the house in or about the time of occurrence. At that juncture, a responsible answer would be expected from the accused how death has happened. While the prosecution came with a story to state that it was the accused who caused asphyxia by strangulating her with a towel, he has come with a story to state that it was a commission of suicide. Now, the question would be whether the death has occurred due to her act of committing suicide or the act of the accused. The learned Counsel for the appellant would submit that the hyoid bone was found to be intact, and also no marks were found in the neck in order to cause asphyxia by strangulating with a towel, and as per the Doctor’s evidence, the possibility of the act of the accused could be ruled out. But, this contention cannot be countenanced for the simple reason that only abrasions were found in the neck as per the Doctor’s opinion. According to P.W.1, after the death, his wife actually removed the clothes of the deceased, and number of injuries were found in the body. Actually, those injuries were caused by him. It is not necessary that in all cases where death is caused by asphyxia by strangulation, there should have been broken hyoid bone, and it depends upon the bodily condition of the deceased concerned. But, in the case on hand, even assuming that she died on account of asphyxia by way of strangulation by the self act of committing suicide, such marks could have been found, but not to be so. Under the circumstances, the presence of the injuries at different parts of the body and the fact that as per the postmortem certificate, abrasions were found in the neck coupled with the fact at the time of arrest, he has given a confessional statement, and he has produced the towel, which was used by him at the time of the occurrence, all would be pointing to the guilt of the accused that it was he and none else has caused the death of his wife by causing asphyxia by strangulation.

12.In view of the above reasons, this Court is satisfied that the prosecution has proved the case beyond reasonable doubt. Hence, the contentions put forth by the learned Counsel for the appellant, do not merit acceptance, and hence, they are rejected. The lower Court was perfectly correct in finding him guilty under Sec.498-A IPC and also under Sec.302 IPC and awarding the punishment referred to above.

13.In the result, this criminal appeal must fail and accordingly, fails and is dismissed.

14.Mr.R.Anand, Advocate, appointed as Amicus Curiae by this Court, is entitled to get remuneration from the Legal Aid, Madurai.

nsv/

To:

1.The Additional Sessions Judge

for Mahila Court

Tiruchirapalli

2.The Inspector of Police

Manapparai Police Station

Manapparai,

Trichy District

Crime No.923/2003

3.The Additional Public Prosecutor

Madurai Bench of Madras High Court

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