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Saravanan-vs-The State By on 16 December, 2008

Madras High Court Saravanan-vs-The State By on 16 December, 2008

Date:- 16.12.2008

Coram

The Honourable Mr. Justice M. CHOCKALINGAM

and

The Honourable Mr. Justice S. RAJESWARAN

Crl. A. Nos.237 and 250 of 2008

1. Saravanan

2. Mrs. Annapurani … Appellants in C.A. No.237/2008

1. P. Venkatesh

2. Mrs. Gandhimathi … Appellants in C.A. No.250/2008

..Vs..

The State by

Deputy Superintendent of Police,

All Women Police Station,

Pothanur Division,

Coimbatore. … Respondent in both appeals.

Appeals filed under section 378 Cr.P.C. praying for the relief as stated below.

For Appellants : Mr. K.M. Subramaniam

(Crl.A. No.237/2008)

Mr. G. Saravana Kumar

(Crl.A. No.250/2008)

For Respondent : Mr. P. Kumaresan

Addl. Public Prosecutor

(both appeals)

COMMON JUDGMENT

(Judgment was delivered by M. CHOCKALINGAM, J.)

Crl.A. No.237 of 2008 has been filed by accused 1 and 4 and Crl.A. No.250 of 2008 has been filed by accused 2 and 5, challenging the judgment dated 11.3.2008 passed by the learned Sessions Judge, Magalir Neethimandram, Coimbatore in S.C. No.154 of 2006, whereby the appellants in both the appeals along with another accused, who is shown as third accused, stood charged, tried and found guilty for the offences under Sections 498A and 304-B read with 34 I.P.C. and the appellants in both the appeals are sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.500/- each in default to undergo Simple Imprisonment for three months under Section 498-A read with 34 I.P.C. and they are sentenced to undergo Imprisonment for Life and to pay a fine of Rs.2,000/- each in default to undergo Simple Imprisonment for six months under Section 304-B read with 34 I.P.C.

2. The short facts necessary for the disposal of the case can be stated thus:-

(i) P.W.1 is the son of Selvanayagam, who had four daughters and three sons. Her daughter Shanmugapriya was given in marriage to first accused on 4.2.2001, during which 40 sovereigns of gold jewels and a cash of Rs.50,000/- were given as demanded by the accused. The first accused is working as a Police Constable attached to Reserve Force. The second accused is the brother; the third accused is the mother and accused 4 and 5 are sisters of first accused. After the marriage, Shanmugapriya was living with first accused as joint family, where she has been tortured then and there and also subjected to cruelty for extracting dowry. She wrote letters to her mother about the same and thereafter, she left the matrimonial home and stayed along with her mother. Her mother, after consoling her, sent back to the matrimonial home. (ii) In August, 2001, the first accused along with Shanmugapriya came to the house of Selvanayagam, who is the mother of the deceased and demanded a sum of Rs.25,000/-, but she paid a sum of Rs.10,000/- only. Thereafter, Shanmugapriya came to her mother’s house to deliver a child. When the third accused made a visit, she told that they should pay a sum of Rs.30,000/-. Thereafter, a male child was born to the deceased and her mother spent the whole medical expenses. but, either first accused or his family members did not care about the same. Thereafter, when Shanmugapriya went to her husband’s house, she was humiliated and she informed the same to her mother. Shanmugapriya told her mother that the accused were demanding a sum of Rs.1,00,000/- as dowry, but the same was not paid. (iii) While the matter stood thus, on the date of incident i.e. on 22.5.2005 at 10.00 p.m. Selvanayagam received a phone call from first accused that Shanmugapriya suffered mild burn injuries and she was hospitalised in Ramakrishna Hospital. P.W.1 in turn conveyed the said message to P.W.2. Thereafter, they rushed to the Hospital where they found that Shanmugapriya sustained burn injuries. She explained her mother as to how such incident occurred. Since she could not bear the harassment, she set her ablaze by pouring kerosene on her. (iv) One Dr. Sekar, Casualty Medical Officer of Ramakrishna Hospital, Coimbatore gave her treatment. P.W.13 is the accident register. On intimation given by the Duty Doctor, P.W.10, Inspector of All Women Police Station proceeded to the Hospital and recorded the statement of the victim, which is marked as Ex.P14 at about 12.30 a.m. On the strength of the statement given by the victim, she registered the case in Crime No.11 of 2005 as fire accident. Further, she went to the scene of occurrence on 23.5.2005 and prepared Observation Mahazar Ex.P16 and Rough sketch Ex.P17. Thereafter, she recovered the material objects under the cover of Mahazar Ex.P18 in the presence of witnesses. (v) After receiving requisition letter Ex.D1 from Ramakrishna Hospital, learned Judicial Magistrate No.VI, Coimbatore recorded Dying Declaration Ex.D2 on 23.5.2005 at 11.30 a.m. On 29.5.2005 at 9.45 p.m., the injured Shanmugapriya succumbed to the injuries. Since the death took place within seven years of marriage, the case was converted into Section 174 Cr.P.C. Then, the copy of First Information Report was sent to P.W.8 Sub Divisional Magistrate-cum-Revenue Divisional Officer, Coimbatore, who came to the spot and held an inquest and examined the witnesses and gave a report Ex.P11, wherein he has stated that the deceased was subjected to cruelty by demanding dowry and a copy of the same was sent to the Deputy Superintendent of Police, Pothanur P.W.11. P.W.4 Doctor Edwin Joe, who conducted post-mortem on the dead body, issued post-mortem Certificate Ex.P2 and Final opinion of post-mortem Ex.P3. (vi) P.W.11 took up further investigation and examined the witnesses, recorded their statements and collected the materials. After enquiry, on the strength of the report given by the Revenue Divisional Officer, P.W.8, the case was converted into under Sections 498-A and 304-B I.P.C. On completion of investigation, final report was filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused.

3. In order to substantiate its case, the prosecution examined P.Ws.1 to 11 and relied on the documents Exs.P1 to P20 and also relied on M.O.1. On the side of defence, only one witness viz Thiru S. Ravishankar, Judicial Magistrate No.6, Coimbatore was examined as D.W.1 and documents Ex.D1 and D2 were marked. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false.

4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Sections 498-A red with 34 and 304-B read with 34 I.P.C. and awarded the punishment referred to above Pending trial the third accused died. Hence these appeals are filed at the instance of accused 1,2, 4 and 5.

5. Advancing arguments on behalf of the appellants, learned counsel would submit that according to the prosecution, the occurrence had taken place on 22.5.2005 at 7.15 p.m. Originally, the case was registered as Fire Accident. After the occurrence, she was immediately taken to the Hospital and the Doctor, who treated her, issued Ex.P13 accident register, which would clearly indicate that it was actually a fire accident. The Doctor, who has actually treated the victim, was not examined.

6. Learned counsel for the appellants further submits that much reliance placed by the prosecution and accepted by the Trial Court was the evidence of P.W.3. According to P.W.3, who is the neighbor of first accused, already an attempt was made by the victim to commit suicide since there was dowry harassment and further on the date of occurrence, she saw the victim pouring kerosene on her and set fire. This statement given by P.W.3 is to be rejected for more reasons than one. Her house is situated on the other side of the road, whereas the occurrence took place inside the kitchen. A perusal of the rough sketch would clearly reveal that the occurrence took place inside the kitchen. Though P.W.3 deposed that she was standing in front of her house, she could not have seen what had taken place inside the kitchen of the deceased.

7. Learned counsel for the appellants further added that though the occurrence took place on 22.5.2005, she has not whispered anything till 29.5.2005, the date of death of deceased. She gave statements only when the Deputy Superintendent of Police examined her. Likewise, she gave statement before the Revenue Divisional Officer. In her statement, she has stated that accused 1 to 4 went to attend the reception after pouring kerosene on the victim and set her ablaze and it was the fifth accused, who extinguished the fire. This statement of P.W.3 was recorded by both these Officials viz. the Deputy Superintendent of Police P.W.11 and Revenue Divisional Officer P.W.8. Since she kept mum for a period of one week, she would not have seen the incident at all. Hence her evidence has to be rejected.

8. Learned counsel appearing for the appellants also submits that the prosecution has no evidence to prove its case. The earliest statement given by the victim to the Doctor when she was admitted in the Hospital, a copy of the Accident Register is marked as Ex.P13, would clearly indicate that it was an accidental fire. It was P.W.10, who immediately rushed to the Hospital and recorded the statement, which is marked as Ex.P14, where she has stated that at the time when she prepared milk for her child, the stove bursts, as a result of which she sustained burn injuries. This would clearly indicate that it was only an accidental fire. There is no material to indicate that it was a self immolation.

9. Learned counsel also submits that according to P.W.1, the victim informed him as if she committed suicide by pouring kerosene on her, due to dowry harassment. This evidence cannot be believed since he has not stated anything about the same for a period of one week till her death. Hence, this statement was nothing but a subsequent development. All would go to show that it is only a fire accident and it is not a case where she committed suicide due to dowry demand. Under these circumstances, that part of the prosecution should have been rejected.

10. Learned counsel further submits that the prosecution had no evidence in respect of dowry demand. Ex.P1 is the letter alleged to have been written by the deceased to her mother. A perusal of the letter would clearly indicate that there is no whisper of demand of dowry. Further as far as the evidence of P.Ws.1 and 2 are concerned, though the incident had taken place on 22.5.2005, both of them have not whispered anything till the death of the deceased. Hence their evidence cannot be believed. There was nothing on record to indicate that there was demand of dowry. Hence, the Trial Court, without any evidence whatsoever, had found the accused guilty. Learned counsel concluded that the judgment of the Trial Court was erroneous and without any substance and hence the same has to be set aside and the appellants have got to be acquitted.

11. This Court heard the learned Additional Public Prosecutor on the above contentions.

12. This Court paid its anxious considerations on the submissions made by either side. It is not in controversy that following the incident that had taken place in the house of first accused, Shanmugapriya was taken to the Hospital and despite treatment, she died on 29.5.2005. The Doctor, who conducted the post-mortem on the body of Shanmugapriya, gave evidence to the effect that she died out of burn injuries. The prosecution was successful enough to establish that she died out of burn injuries.

13. Before the Trial Court, two charges were levelled against these appellants. One is that the victim committed suicide and all the accused persons were responsible for the same and further, there was a dowry demand, as a result of which, she was subjected to cruelty by the accused persons. On a thorough scrutiny of the materials available on record, following circumstances are noticed by this Court:- (i) Insofar as first charge of abetment of commission of suicide is concerned, the occurrence took place on 22.5.2005 at 7.15 p.m. Admittedly, she was taken to the Hospital and she was given treatment by one Dr. Sekar, but the prosecution has not examined the said Doctor. A copy of the Accident register issued by him is marked as Ex.P13. This document is the earliest document, which has come into existence. A perusal of the said document would clearly reveal that it was actually an accidental fire. Following the said document, Ex.P14 statement of the deceased has come into existence. P.W.10, the Inspector of All Women Police Station, on intimation, rushed to the Hospital and recorded the statement of victim. A reading of Ex.P14 would clearly indicate that it was actually an accidental fire, due to which she sustained burn injuries. A reading of the said statement would clearly indicate that it was not a case of suicide. (ii) Further, the prosecution much relied on the evidence of P.W.3. As rightly pointed out by the learned counsel for the appellants, P.W.3, a neighbor, whose house is situated on the other side of the road, could not have seen the occurrence, which took place inside the kitchen of the first accused, though P.W.3 was standing in front of the house. Apart from this, though the occurrence had taken place on 22.5.2005, she has not even whispered anything about the said act of self immolation for a period of one week. She gave her evidence only on 29.5.2005 that too at the time of enquiry by the Deputy Superintendent of Police, she has come forward with such version. It is further to be pointed out that she has given different version on the very day to the Revenue Divisional Officer, who conducted enquiry. She has stated to the Revenue Divisional Officer that it was accused 1, 3 and 4, who poured kerosene on the decease and set her fire and they left the place and it was the fifth accused, who extinguished the fire. This would clearly indicate that the evidence of P.W.3 is liable to be rejected since she has not only kept mum for a period of one week but also she gave different version to the different Officials on the same day. The evidence given by her, pointing out the guilt of the accused, has to be rejected. All these circumstances would clearly indicate the fact that it was nothing but a fire accident. The prosecution has failed to prove the act of self immolation by the deceased and the accused are responsible for the same. Hence, insofar as the charge of Section 304-B I.P.C. is concerned, the prosecution has miserable failed to prove the same. Hence the finding of the Trial Court in that regard has got to be set aside. (iii) Insofar as the other charge of cruelty under Section 498-A I.P.C. is concerned, this Court is of the considered opinion that the prosecution has proved its case as against accused 1 and 4, who are appellants in Crl.A. No.237 of 2008. The first accused is the husband and the fourth accused is the sister-in-law of the deceased. The prosecution has the direct evidence of P.Ws.1 and 2, who are brother and sister of the deceased. Added to this, the prosecution has relied on the letter written by the deceased to her mother, which is marked as Ex.P1. (iv) When the evidence of P.Ws.1 and 2 would clearly indicate the fact that in the past, accused 1, 3 and 4 were demanding dowry, Ex.P1 letter written by the deceased would speak about the fact that she was tortured and harassed by the said accused. At this juncture, the contention put forth by the learned counsel for the appellants is that P.Ws.1 and 2 have not given any evidence about the dowry demand at all and Ex.P1 letter also does not speak about the same, that too, they gave statements only after a week i.e. on 29.5.2008 and hence, no credence would be attached to their evidence.

14. The said contention cannot be accepted. Originally, the case was registered as fire accident and the same was converted into one under Section 174 Cr.P.C. and thereafter, on enquiry made by the Revenue Divisional Officer and the Deputy Superintendent of Police, the case was converted into under Sections 304-B and 498-A I.P.C. At the earliest point of time, when the case was registered as fire accident, either P.W.1 or P.W.2 had no occasion to speak about the dowry demand. When the enquiry was made by the Revenue Divisional Officer, they had an occasion to come out with the truth as to what happened in the past. There is sufficient materials to hold that accused 1, 3 and 4 are guilty of cruel treatment and also demanded dowry, which is punishable under Section 498A I.P.C. Insofar as accused 2 and 5 are concerned, there is no material to point out the guilt of the accused.

15. Insofar as accused 2 and 5 are concerned, Crl.A. No.250 of 2008 is allowed and conviction and sentence imposed on the said accused in S.C. No.154 of 2006 on the file of the Sessions Judge, Magalir Neethimandram, Coimbatore is set aside. It is submitted that the appellants are on bail. Hence bail bonds, if any, executed shall stand terminated forthwith. Fine amount, if any, paid, shall be refunded to them.

16. Insofar as accused 1 and 4 are concerned, the conviction and sentence awarded by the Trial Court for the offence under Section 304-B read with 34 I.P.C. is set aside and the conviction and sentence awarded by the Trial Court for the offence under Section 498A read with 34 I.P.C. is confirmed. With this modification, Crl.A. No.237 of 2008 is dismissed. ssa.

To

1. The Judicial Magistrate No.6,

Coimbatore.

2. The Chief Judicial Magistrate,

Coimbatore.

3. The Sessions Judge,

Magalir Neethimandram,

Coimbatore.

4. The Superintendent,

Central Prison,

Coimbatore

5. The Superintendent,

Special Prison for Women,

Vellore.

6. The District Collector,

Vellore.

7. The Director General of Police,

Madras 4.

8. The Deputy Superintendent of Police,

All Women Police Station,

Pothanur Division, Coimbatore.

9. The Public Prosecutor,

High Court,

Madras

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