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Sekar-vs-State Represented By on 15 October, 2009

Madras High Court Sekar-vs-State Represented By on 15 October, 2009

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 15/10/2009

CORAM

THE HONOURABLE MR.JUSTICE C.T.SELVAM

Crl.A.No.(MD) No.14 of 2004

Sekar … Appellant/accused

vs

State represented by

Inspector of Police

Musiri Police Station,

Tiruchirappalli District. … Respondent

Prayer

Criminal Appeal filed under Section 374 of Cr.P.C. to set aside the judgment and order made in S.C.No.254/1993 dated 19.08.2002 passed by the I Additional Sessions Judge cum Chief Judicial Magistrate, Tiruchirappalli whereby the appellant herein has been convicted and sentenced to undergo R.I. For two years for an offence under Section 498A IPC and to pay a fine of Rs.1,000/- in default three months and to undergo R.I. For ten years for an offence under Section 304(B) IPC.

!For Appellant … Mr.T.A.Omprakash

^For Respondent … Mr.P.Rajendran

Government Advocate (crl.Side)

:JUDGMENT

This appeal has been filed against the judgment and order made in S.C.No.254/1993 dated 19.08.2002 passed by the I Additional Sessions Judge cum Chief Judicial Magistrate, Tiruchirappalli whereby the appellant/accused has been convicted and sentenced to undergo R.I. For two years for an offence under Section 498A IPC and to pay a fine of Rs.1,000/- in default, to undergo three months rigorous imprisonment and to undergo Rigorous Imprisonment for ten years for an offence under Section 304(B) IPC.

2.The case of the prosecution is as follows:

(a) Two years prior to the date of occurrence 15.04.1993, the accused Sekar had married the deceased Suguna D/o.one Duraisami. At the time of the marriage, parents of Suguna had agreed to give a sum of Rs.20,000/- as dowry. Since they did not pay the amount as agreed, the accused started harassing his wife Suguna and coerced her to meet the unlawful demand of dowry. The accused and his wife were residing in a portion of the house of one Kanniyammal, grand mother of deceased Suguna at Musiri. The accused had driven the deceased Suguna out of her house several times demanding dowry. On 15.04.1993 around 03.30 a.m. The accused set the deceased Suguna on fire while she was sleeping with the intention of causing death and as a result of which Suguna jumped into the well situated in the backyard. She was taken out of the well and was taken to the Government hospital, Tiruchirappalli where she had died around 10.30 a.m. on 15.04.1993. Hence the accused had intentionally caused the death of Suguna and had also subjected her to cruelty in connection with unlawful demand of dowry of Rs.20,000/- and thereby the accused had committed offences under Section 498(A) and 304(B) IPC. Alternatively, the accused rendered himself liable to be punished under Section 302 IPC since he had committed murder intentionally causing the death of said Suguna on 15.04.1993 around 03.30 a.m. at his house at Musiri.

(b) The Judicial Magistrate, Musiri has taken the case on file as P.R.C.No.7/1993 and furnished copies of the documents relied on by the prosecution to the accused under Section 207 Cr.P.C.

(c) As the charges under Section 498(A), 304(B) @ 302 IPC against the accused are exclusively triable by the court of Sessions, the Judicial Magistrate, Musiri committed the case to the Principal Sessions Judge, Tiruchirappalli and in turn this case has been taken on file as S.C.No.254/93 by the Principal Sessions Judge, Tiruchirappalli and made over to the 2nd Additional Sessions Judge, Tiruchirappalli for trial. Before 2nd Additional Sessions Judge, charges under sections 498(A) and 302 IPC have been framed, read over and explained and the accused pleaded not guilty. The case was transferred to the trial Court.

(d) On the side of the prosecution 14 witnesses have been examined. Ex.P.1 to P.14 and M.O.1 to M.O.16 have been marked.

(e) The evidence of the prosecution is as follows:

The mother of deceased Suguna one Balamani has been examined as P.W.1. The deceased Suguna is her second daughter and the accused is the husband of deceased Suguna. On 28.08.1991, the deceased Suguna was given in marriage to the accused and the marriage was performed at Sivan Koil at Pappakulam. At the time of the marriage she was given 2 sovereign gold ring, " sovereign ear stud, " sovereign kundu and kasu and a sum of Rs.20,000/- was agreed to be given afterwards. At the time of the occurrence the deceased had a 10 month old girl child by name Kalaivani. The said child is with P.W.1. The accused and the deceased Suguna were living at P.W.1’s mother’s house at Gandhi Nagar, Musiri for rent. The marriage expenses was met by the family of the accused. The bride was given vessels worth Rs.6,000/-. The accused was doing centering work. He had sold the gold ring given to him. Further the accused started harassing his wife by demanding dowry. When the accused had demanded money, he was told that the wife’s family were not able to meet the demand presently and that it later would be met. Since her daughter was ill-treated, she had come and asked money from P.W.1. The accused had beaten his wife Suguna on more than 20 occasions. Whenever the accused came to her house, they used to give Rs.100/- or Rs.200/- and requested him not to ill-treat their daughter. They had also said that since the accused was a spendthrift, they would deposit the money in her daughter’s name. P.W.1’s first daughter, namely, Ambika was given in marriage at Thottiyam. Suguna had been to Ambika’s house 4 or 5 days prior to the incident, where the accused had gone and had taken the child after beating Suguna. Ambika came to P.W.1’s house along with Suguna and narrated the incident. At that time, the accused had also come there along with child. The accused was pacified and they had advised Suguna also and they were sent to Musiri. On the next day at 06.00 a.m., one person from Musiri had come and said that Suguna had set herself on fire by dousing herself with kerosene and she was admitted at the Musiri Government Hospital. Since P.W.1’s husband had gone for work she had sent word to him and she had gone to Thottiyam along with her daughter Ambika. They had gone to the hospital by 08.00 a.m. On knowing that the deceased was taken to the Tiruchirappalli Government hospital, they had gone there, around 09.00 a.m. When P.W.1 asked Suguna as to what had happened Suguna had said that the accused had poured kerosene and set her on fire and that she had fallen into the well unable to bear the pain. She also said that the accused would kill the child and only P.W.1 will have to look after the child. While P.W.1 was at the hospital, Suguna had died. The R.D.O. came and enquired Ex.P.1 is the statement given by P.W.1 to the R.D.O.

(f) The sister of the deceased Suguna, Ambika has been examined as P.W.3. At the time of the marriage the deceased Suguna was given gold kundu and kasu and ear stud. The accused was given one sovereign of gold ring. She had given a wrist watch to her sister. Her sister was also given vessels worth Rs.6,000/- . The accused had demanded Rs.20,000/- as dowry and her parents said that they will give the amount subsequently. Her sister and the accused were living at her mother’s house at Musiri for about 3. years. The accused had sold the ring given to him and watch given to her sister. The accused used to beat Suguna frequently and sent her to her parent’s house to get dowry amount of Rs.20,000/- P.W.3 had brought her sister Suguna to Thottiyam for a festival 4 or 5 days prior to death. The accused refused to come there. Subsequently the accused had come to her house and called her sister. Since her sister told that she will come after the festival was over, the accused had beat her and had taken the child away. Subsequently, P.W.3 went to her mother’s house along with her sister Suguna around 9 or 10.30 a.m. The accused had come to her mother’s house. She had advised them to go to Musiri. On the next morning 7.00 a.m. Her mother and brother came and informed that the accused had poured kerosene on her sister and set fire and her sister was admitted at Musiri Government hospital. She had gone to Musiri Government Hospital and thereafter they had gone to Government hospital at Tiruchirappalli where her sister told that the accused had set her on fire, since her sister had refused to get money. Her sister had died subsequently.

(g) One Evuri has been examined as P.W.4. On 15.04.1993 around 03.30 a.m. He was proceeding via Thuraiyur road from Musiri-Kaikatti after seeing a movie. When he went to a tea shop near Kaikatti, he saw fire and smoke at a place near Gandhi nagar and in about 2 or 3 minutes he went to the said place. When one Saravanan and P.W.4 had gone to the scene, the accused was standing there with burn injuries. They heard a sound from the well nearby. They peeped into the well and on seeing the deceased, they had lifted her from inside the well by using a coir rope. The deceased had told her grand mother that the accused had poured kerosene and set her on fire while she was sleeping. When he went inside the house, the cot, pillow and other things were burning. The fire personal came and had taken the accused and Suguna. He heard that Suguna had died. (h) The then Village Administrative Officer of Alagarai Village one Subramanian has been examined as P.W.5. On information from his Assistant one Kalaimani, he went to the place of the occurrence on 15.04.1993 around 07.00 a.m. and again at 06.00 p.m. The Deputy Superintendent of Police was inspecting the place of the occurrence. P.W.5 and one Kalaimani signed in the observation mahazar Ex.P.2 prepared by the Deputy Superintendent of Police. The police also seized about 15 burnt objects from the place of the occurrence under mahazar Ex.P.3 in which also they had signed as witnesses. M.O.1 is the leg of the wooden cot. M.O.2 is the 5 litre kerosene tin, M.O.3 is a kaili. M.O.4 is the burnt cradle cloth. M.O.4 is the partly burnt violet colour bedsheet. M.O.6 is a piece of the partly burnt green and white coloured bed sheet, M.O.7 is the partly burnt bed sheet. M.Os.8 and 9 are partly burnt pillows. M.O.10 is the partly burnt slack shirt. M.O.11 is the partly burnt yellow colour shirt. M.O.12 is partly burnt coir. M.O.13 is the partly burnt mat. M.O.14 is the partly burnt cradle rope. M.O.15 is the match box.

(i) The then Fire Prevention Officer, Musiri one Kajendran has been examined as P.W.6. On 15.04.1993 when he was on duty, on information given by one Manokaran around 03.40 a.m., he along with 5 or 6 persons went to No.131 A Gandhi Nagar, Musiri and the accused was found with burn injuries. One woman by name Suguna, who had been lifted from a well was there. There were burn injuries on her body. She said that her husband had poured kerosene and set her on fire. The accused and the said Suguna were taken in their vehicle and were admitted at Musiri Government Hospital. The fire service personnel had put out the fire. (j) The then Medical Officer, Tiruchirappalli Government hospital one Muthulakshmi has been examined as P.W.7. On 16.04.1993 she had conducted postmortem on the body of the deceased Suguna at around 01.30 p.m., on the request of RDO. There was burn injuries all over the body and the skin had peeled of. Smoke particles were found in the lungs. She sent the liver, intestine, kidney of the deceased for chemical analysis. The deceased Suguna would have died due to shock and due to the injuries 24 to 28 hours prior to postmortem. The burn injuries were 100% Ex.P.5 is the postmortem certificate. Ex.P.6 is the final report.

(k) The then Revenue Divisional Officer one Soundaya has been examined as P.W.8. On 16.04.1993 he received the First Information Report from the Inspector of Police, Musiri and conducted inquest on the body of the deceased Suguna. Ex.P.7 is the inquest report. After inquest he had given a report stating that the deceased could have died due to the acts of her husband. Ex.P.1 is the statement given by P.W.1, Balamani, mother of the deceased. He gave requisition to the doctor for conducting postmortem. (l) The then Medical Officer, Annal Gandhi Government hospital one Rajendran has been examined as P.W.9. He was present while the Judicial Magistrate recorded the dying declaration of the deceased Suguna at around 9.20 a.m. on 15.04.1993. At the time of giving statement the deceased Suguna was fully conscious and was in a condition to give dying declaration. He has given a certificate to that effect. He was present from the beginning till the end of the statement. The deceased had given proper answers for the questions put by the Magistrate. The Magistrate had read over the statement to the deceased Suguna. Both the hands of the Suguna bore burn injuries. Hence, thumb impression could not be obtained. Ex.P.9 is the dying declaration of the deceased Suguna.

(m) The then Sub Inspector of police, Musiri Police Station one Karnan has been examined as P.W.10. On 15.04.1993 he had received wireless message from the hospital and went to the hospital by 11.00 a.m. He had obtained statement from one Kanniammal, grand mother of the deceased Suguna. He had read over the same to her and obtained her thumb impression. Ex.P.10 is the complaint. He came to Musiri Police Station and registered a case in Crime No.162/93 under section 304(B) IPC. Ex.P.11 is the first information report. He sent the first information report of the court. Since the woman had died within 7 years of her marriage, he sent the first information report to the Revenue Divisional Officer and other officials.

(n) The then police constable of Musiri Police station one Rengaraj who has been examined as P.W.11. He had received the requisition from RDO for conducting postmortem and had handed over the same to the doctor. After postmortem he had handed over the dead body to the relatives. (o) The then police constable of Musiri Police Station one Pannir Selvan P.W.12 spoke to having handed over the Express FIR to the court and other officials.

(p) The then Medical Officer of government hospital Musiri one Udaya kumar has been examined as P.W.14. On 15.04.1993 around 04.15 a.m., the accused and his wife were brought in a fire department vehicle with burn injuries. The accused was at the hospital as in-patient for 15 days. Ex.P.13 (series) is the case sheet. Suguna said that she had jumped into the well. Since the burn injuries were more than 85%, she was immediately sent to Government hospital, Tiruchirappalli, for further treatment. Ex.P.14 is the copy of the Accident Register.

(q) The then Deputy Superintendent of Police, Musiri, one Arumugam has been examined as P.W.13. On 15.04.1993 he took up the case for investigation. He examined witnesses and recorded their statements on various dates. He went to the place of occurrence and prepared observation mahazar in the presence of V.A.O. and his assistant. He recovered partly burnt MOS from the place of occurrence under seizure mahazar, Ex.P.3. He prepared rough sketch Ex.P.12. M.O.16 (series) are the 8 photos with negatives. He received inquest report from R.D.O. After completing his investigation he filed charge sheet against the accused under Section 302 and 498(A) IPC on 16.07.1993.

3.On conclusion of trial and on questioning under Section 313 Cr.P.C., the accused had denied his guilt. The lower Court, on appreciation of the entire evidence, had found it unsafe to accept the dying declaration Ex.B.9, on the reasoning that the same does not contain a certificate either by the Doctor or by the Judicial Magistrate to the effect that the victim was in a proper frame of mind before the recording of the dying declaration or on the completion thereof and by following the decision reported in 1999 SCC (Crl) 1361 and other decisions. The lower Court also had found that there is no direct evidence to show that the accused had set the deceased on fire. Having been unable to accept the dying declaration for the reasons above stated and in the absence of corroboration, the lower Court felt that the benefit of doubt has to be given to the accused in this regard. However, again on a consideration of the evidence and more particularly that of P.W.1 to 4, the lower court had found that the prosecution had established the frequent demand for dowry and the repeated ill- treatment by the accused of the deceased and accordingly, convicted him for offences under Sections 498(A) and 304(B) IPC.

4.I find no reason to disagree with the finding of the conviction arrived at by the lower Court, since the incident took place within 7 years of marriage in circumstances other than normal. The presumption under Section 113 (b) of the Evidence Act, which squarely applicable in the facts and circumstances of the case.

5.It is pleaded that the appellant has been in custody right from the date of judgment; that he has already undergone imprisonment for more than 7 years and that some leniency may be shown by this Court in the matter of sentence.

6.The death of the deceased wife occurred on 15.04.1993. The age of the accused is now about 46 years. At the time of occurrence, there was a female child of about 11 months old and such girl would now be of marriageable age. It is apparent from the evidence on record that the accused was wayward when younger. There is every possibility of his having mellowed with age.

7.Considering the above aspects, this Court feels that while confirming the conviction passed by the lower Court, the sentence may be modified to one of the period already undergone by the accused. Hence, the accused shall be released from custody, if not required to be in such custody in any other case. The Criminal Appeal is ordered accordingly.

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