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Sekar vs The Deputy Superintendent Of … on 21 January, 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.01.2019

CORAM

THE HONOURABLE Mr.JUSTICE M.DHANDAPANI

Crl.A.No.230 of 2010

1.Sekar

2.Bakkiyam .. Appellants/Accused 1 2

Vs.

The Deputy Superintendent of Police,
Omalur Sub-Division,
Salem District,
Tharamangalam Police Station,
Salem District.
Crime No.125 of 2005 .. Respondent/Complainant

Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to set aside the conviction and sentence passed by
the Sessions Judge, Mahila Court, Salem by judgment dated
30.03.2010 in S.C.No.140 of 2009.

For Appellants : Mr.B.Kumarasamy
(Amicus curiae)
For Respondent : Mr.R.Ravichandran
Government Advocate (Crl.side)

JUDGMENT

This criminal appeal has been filed by the appellants/A1

and A2, as against the conviction and sentence dated 30.03.2010

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made in S.C.No.140/2009 on the file of learned Sessions Judge, Mahila

Court, Salem.

2.The brief facts of the prosecution case are as follows:-

P.W.1 is the father of the deceased. P.W.2 is the mother

of the deceased. On 29.03.2005, the marriage between the

appellant/first accused and deceased (Rukmani) was solemnized. A2

is the mother of A1 and mother-in-law of the deceased. The deceased

along with A1 and A2 was residing at M.G.R. Colony as joint family.

After marriage, A1 and A2 ill-treated the deceased that she must

bring money from her parents. On 27.02.2005, the deceased was

harassed by A1 asking her to bring Rs.10,000/- from her parents.

Thereafter, on 29.03.2005 at 10.00am, A1 and A2 joint together and

harassed the deceased as to what seervarisai she had brought and

beaten the deceased with lock and firewood. Thereby, A2 mother-in-

law fisted the face, due to their harassment, the deceased committed

suicide by hanging herself at the house of A1. Immediately, after the

death of the deceased, the same was informed to P.W.1 and P.W.2.

Thereafter, they reached A1 house and found that her daughter’s body

was laid down on the floor. However, without hearing P.W.1 and

P.W.2’s request the body was taken to the burial ground and

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cremated. However, the said body was removed from the cremation

ground, in respect of which P.W.1 lodged the complaint Ex.P1.

3.P.W.8 Sub Inspector of Police received the report from

P.W.1 and registered a case in Crime No.125 of 2005 under Section

498A, 302 and 201 IPC. Ex.P9 is the printed FIR. The said report was

forwarded to P.W.11-RDO and further handed over the investigation to

P.W.13-Deputy Superintendent of Police. The Deputy Superintendent

of Police, took up the case for further investigation, went to the scene

of occurrence and prepared observation mahazar Ex.P2 and rough

sketch Ex.P12 and recovered material objects MO1 to MO5.

Thereafter, RDO/P.W.11 conducted inquest over the dead body and

issued inquest report Ex.P10. After examining the medical officer and

other witnesses the offence was altered into one under Sections 498A,

304b and 201 IPC. The alteration report is marked as Ex.P.14.

4.P.W.13, took up the case for further investigation and

arrested A1 and A2 on 02.04.2005. Thereafter, he laid a final report

as against the accused for the offences under Sections 498A, 304b and

201 r/w 511 IPC.

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5.During the pendency of the trial, A6-Kuppusamy was

reported to be dead. On production of death certificate, the case was

abated against A6.

6.Based on the above materials, the trial Court framed the

charges for the offences under Sections 498A and 304b IPC against

the accused and the accused denied the same. In order to prove the

charges, on the side of prosecution P.W.1 to P.W.13 were marked,

Exhibits P.1 to P.15 were marked and MO1 to MO5 were marked.

7.When the trial Court questioned the accused under

Section 313 of Cr.P.C., in respect of incriminating evidence available

against them, they denied the complicity in the crime and pleaded

innocence. However, they neither chose to examine any witness nor

marked any documents.

8.The trial Court after considering the oral and

documentary evidence, found A1 and A2 guilty of the offences under

Sections 498A and 304b IPC. Accordingly, the trial Court convicted the

accused and sentenced them to undergo rigorous imprisonment for

three years each and to pay a fine of Rs.1,000/- in default to undergo

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rigorous imprisonment for three months for the offence under Section

498A IPC., they were imposed sentence of seven years rigorous

imprisonment and fine of Rs.1,000/- in default to undergo rigorous

imprisonment for three months for offence under Section 304b IPC.

The sentence imposed on the accused were ordered to run

concurrently. Challenging the said conviction and sentence, A1 and A2

have preferred this appeal.

9.Though the case was repeatedly listed before this Court,

however, no one represented on behalf of the appellants. Hence, this

Court appointed Mr.B.Kumarasamy, as amicus curiae, in the case to

assist the Court. Heard, learned Government Advocate appearing for

the respondent.

10.The learned counsel appearing for the appellants would

contend that there is no material whatsoever available on record to

prove the charges under Section 498A and 304b IPC. Ex.P1 complaint

is totally contrary to the evidence of P.W.1 and P.W.2. Admittedly, the

deceased committed suicide at her husband’s house. P.W.1 in her

Ex.P1 complaint says that A1 and A2 assaulted the deceased thereby,

the deceased sustained injuries. As no injuries were found on her

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body and only the burn injuries were found on the deceased, the body

of the deceased was removed from cremation. Initially P.W.1 and

P.W.2 agreed to cremate the deceased daughter. Subsequently they

changed their mind to lodge the complaint Ex.P.1 and implicated the

accused persons in the above said offence is unsustainable. However,

after investigation, the case was altered into under Sections 304b,

498A and 201 IPC.

11.The learned counsel appearing for the appellant further

contended that there was no evidence to prove the harassment for

demand of dowry by the appellants. Even RDO report which was

marked as Ex.P.11, clearly says that there was no dowry harassment.

Hence, ingredients required under Section 498A and 304b IPC were

not established before the trial Court. Hence, he prays for acquittal of

the accused.

12.Per contra, the learned Government Advocate (Crl.side)

would submit that P.W.1 and P.W.2 have clearly spoken the quarrel

between A1, A2 and the deceased and frequently they harassed the

deceased for money from P.W.1 and P.W.2 and very often, they sent

the deceased to the parents’ home and demanded additional dowry.

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The prosecution proved the case against the accused beyond

reasonable doubt and due to harassment of A1 and A2, the deceased

committed suicide. Therefore, the judgment of the trial Court need

not be interfered with.

13.In the light of the above submissions, now it has to be

analysed, whether the prosecution has proved the guilt of the accused

beyond all reasonable doubt.

14.The evidence of P.W.1, who is the father of the

deceased indicates that he is residing at Vandavasi and he is doing

weaving and he has two sons and one daughter. The marriage of the

deceased daughter Rukmani and A1 was solemnized and at the time of

marriage 6 ¼ sovereigns of gold and house hold things were given as

seedhana to A1. Thereafter, they were beating her and demanding

dowry. After three months from the date of marriage, he went to the

daughter’s matrimonial home and found A1 attacked the deceased in

his presence. Thereafter, he took his daughter to his house. After two

or three days, A1 came to house and pacified the deceased and took

her to his house. Thereafter, P.W.1 arranged the marriage of his son.

A1 and his daughter came to that marriage, at that time, A1 quarreled

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with the deceased that he would live with her only if she brings money

from her father and A1 left the deceased in P.W.1’s house and went to

his house. After two or three days, again he came to P.W.1’s house

and pacified to send back the deceased to matrimonial home.

Thereafter, P.W.2 went to the house of A1 and no respect was given to

P.W.2 and the same was informed to P.W.1. Thereafter, the deceased

along with plastic container and silver vessel, went to drinking water

pipe to fetch water, at that time, A1 beaten the deceased with fire-

wood and A2 beaten her with lock and caused injuries. Thereafter,

P.W.1 and P.W.2 were informed that her daughter was dead. Without

hearing the request of P.W.1 and P.W.2, A1 to A6 took the body of the

deceased to cremation ground and cremated the deceased. Then

P.W.1 and P.W.6 went to the cremation ground and pulled out the

body from the fire. Thereafter, they went to the police station and

lodged Ex.P1 complaint. P.W.2 also corroborated with the evidence of

P.W.1.

15.P.W.8, Sub Inspector of Police, while he was working as

Sub Inspector of Police at Tharamangalam Police Station, after receipt

of Ex.P1 complaint, registered a case in Crime No.125/2005 under

Sections 498A, 302 and 201 IPC. The said FIR is marked as Ex.P2.

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Thereafter, he dispatched the copies of the FIR to the R.D.O., Mettur

and D.S.P., Omalur Sub Division, for further investigation. The said

FIR was handed over to P.W.10-Ramasamy Head Constable, in order

to handover the same to the Judicial Magistrate, on 30.03.2005 at

2.30 am, the said FIR was handed over to jurisdictional Judicial

Magistrate, Omalur.

16.P.W.11-RDO, while she was working as RDO at Mettur,

on 29.03.2005, she received the copy of the FIR of the deceased. On

the same day, at 1.00 am, she went to the cremation ground of

Tharamangalam and saw the body of the deceased half burnt and she

conducted inquest over the dead body of the deceased. Then she

examined one Loganathan, Bakkiyam, Venkatachalam, Arthanari,

Rathinam, Munusamy and Suseela before the Panchayatar. The

inquest report and her report are marked as Ex.P.10 and Ex.P.11

respectively. She has stated in Ex.P.11 that the evidence clearly

indicates that there is no dowry harassment.

17.P.W.9 Subramani, the then Head-Constable, on

29.03.2005, after inquest, received the dead body and handed over to

the Salem Government Hospital for postmortem. After postmortem,

he handed over the body of the deceased to her relatives.

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18.P.W.7 Dr.S.S.Meera, working as Assistant Professor in

Forensic Medicine Department of Salem Government Hospital, on

30.03.2005, received a requisition from the RDO for conducting

postmortem on the body of the deceased. On the same day at 1.00

pm, she along with Dr.Kesavalinagam conducted postmortem on the

body of the deceased and found the following injuries on the body:-

“An oblique ligature mark 2-5 cms width,
19cms in total length over the upper part of front and
sides of neck above the level of thyroid cartilage was
found. On the right side of neck the upper border of the
ligature mark was found to be 5 cms below the right
mastoid process and on the left mastoid process.”

19.The postmortem certificate, chemical examination

report and another examination report are marked as Exs.P.6, P.7 and

P.8 respectively. On perusal of her report Ex.P7, it is seen the

deceased died due to hanging and on perusal of Ex.P7 postmortem

report, it is seen that no external injuries as alleged by P.W.1 and

P.W.2.

20.P.W.12 is the investigating officer, who took up the

case for investigation. On 06.04.2005, he sent requisition to examine

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the witnesses Munusamy, Mallika and Kalaiselvi under Section 164

Cr.P.C. The 164 Cr.P.C., statement were not received from the

Judicial Magistrate, Omalur. On 11.04.2005, he took A1 and A2 in the

police custody and again sent them from remand. Thereafter, the case

bundle was handed over to P.W.13, on 29.03.2005, he was working as

DSP, Salem District, Crime Branch. On the same day at about 11.00

am, he took up the case for further investigation and proceeded to

cremation ground of Tharamangalam and prepared an observation

mahazar and examined all witnesses and filed a final report under

Sections 498A, 304b and 201 r/w 511 IPC.

21.Though P.W.2 has also supported the version of P.W.1,

she indicated there was some quarrel between A1 and her daughter

prior to the occurrence, due to which the deceased committed suicide

in the house of A1.

22.P.W.3 and P.W.4 turned hostile and their evidence is

not useful for the case. P.W.5 is VAO. P.W.6 is relative of P.W.1 and

in his evidence, he indicated that he removed the body from the fire,

however, he did not disclose the reason for the death of the deceased.

Admittedly, prior to her suicide, the deceased was residing in

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matrimonial home along with A1 and A2 is residing separately in some

other place. P.W.1 and P.W.2 never whispered anything about the

alleged quarrel or abuse made by the accused, soon before the death

of the deceased.

23.It is relevant to note that P.W.1 and P.W.2, in their

evidence clearly deposed that their daughter was subjected to cruelty.

Particularly, A1 and A2 attacked with wooden stick and lock thereby,

the deceased sustained grievous injuries on her forehead and face.

The Doctor who conducted postmortem, issued postmortem certificate

which did not reveal the external injuries on the body of the deceased,

as alleged by P.W.1 and P.W.2.

24.When that being the position, the investigating officer

rightly filed an alteration report before the trial Court. However, on

perusal of the entire evidence, there was a quarrel between the

deceased and A1. Even assuming the deceased was abused by A1

and A2, the same would not amount to incitement or abetment to

force a person to commit suicide.

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25.The very similar issue was dealt with by the Hon’ble

Apex Court in the decision reported in (2017) 1 SCC 101 (Baijnath

and others Vs. State of Madhya Pradesh), in which, it was held as

follows:-

”24.The evidence on record and the
competing arguments have received our required
attention. As the prosecution is on the charge of the

offences envisaged in Sections 304-B and 498-A of the
Code, the provisions for reference are extracted
hereunder:

“304-B. Dowry death.-(1) 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 purpose of this sub-
section, “dowry” shall have the same meaning as in
Section 2 of the Dowry Prohibition Act, 1961 (28 of
1961).

(2) Whoever commits dowry death shall be
punished with imprisonment for a term which shall not

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be less than seven years but which may extend to
imprisonment for life.

498-A. Husband or relative of husband of a
woman subjecting her to cruelty.- Whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to fine.

Explanation.-For the purposes of this
section, “cruelty” means-

(a) any wilful conduct which is of such a
nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or

(b) harassment of the woman where such
harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any
property or valuable security or is on account of failure
by her or any person related to her to meet such
demand.”

25.Whereas in the offence of dowry death
defined by Section 304-B of the Code, the ingredients
thereof are:

(i) death of the woman concerned is by any
burns or bodily injury or by any cause other than in
normal circumstances, and

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(ii) is within seven years of her marriage,
and

(iii) that soon before her death, she was
subjected to cruelty or harassment by her husband or
any relative of the husband for, or in connection with,
any demand for dowry.

The offence under Section 498-A of the
Code is attracted qua the husband or his relative if she
is subjected to cruelty. The Explanation to this Section
exposits “cruelty” as:

(i) any wilful conduct which is of such a
nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb of health
(whether mental or physical), or

(ii) harassment of the woman, where such
harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any
property or valuable security or is on account of failure
by her or any person related to her to meet such
demand.

26.Patently thus, cruelty or harassment of
the lady by her husband or his relative for or in
connection with any demand for any property or
valuable security as a demand for dowry or in
conncetion therewith is the common constituent of both
the offences.

27.The expression “dowry” is ordained to
have the same meaning as in Section 2 of the Dowry

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Prohibition Act, 1961. The expression “cruelty”, as
explained, contains in its expanse, apart from the
conduct of the tormentor, the consequences
precipitated thereby qua the lady subjected thereto. Be
that as it may, cruelty or harassment by the husband or
any relative of his for or in connection with any demand
of dowry, to reiterate, is the gravamen of the two
offences.

28.Section 113-B of the Act enjoins a
statutory presumption as to dowry death in the
following terms:

“113-B. Presumption as to dowry death.-

When the question is whether a person has committed
the dowry death of a woman and it is shown that soon
before her death such woman has been subjected by
such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court shall
presume that such person had caused the dowry death.

Explanation.- For the purposes of this
section, “dowry death” shall have the same meaning as
in Section 304-B of the Indian Penal Code (45 of
1860).”

26.Further in the decision of the Hon’ble Apex Court

reported in (2011) 11 SCC 517 (Shindo Alias Sawinder Kaur and

Another Vs. State of Punjab) it is held as follows:-

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“9.We also notice that the High Court was
dealing with an appeal against acquittal. Undoubtedly, in a
case of dowry death under Section 304-B, a presumption of
Section 113-B, Evidence Act, does not arise against the
accused. However, the presumption is relatable to the fact
that the prosecution mush first spell out the ingredients of
the offence and then only can a presumption arise. In the
present case we find that the death was an unnatural one
and had taken place within sever years of the marriage but
the third ingredients that any demand for dowry had been
made soon before the death has not been proved. In this
view of the matter the presumption under Section 113-B of
the Evidence Act cannot be raised.”

27.Further in the decision of the Hon’ble Apex Court

reported in (2013) 4 SCC 131 (Bakshish Ram and Another Vs.

State of Punjab) it is held as follows:-

“20.Another relevant aspect to be noted is that
it was Appellant 1, husband of the deceased who took the
deceased to the hospital and it was he who informed the
police as well as parents of the deceased. It is also
brought to our notice that he did not make any attempt to
run away from the place of occurrence.”

28.In any event, the charges framed against the accused

have not been established and a mere quarrel between the deceased,

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A1 and A2 for some issue much prior to the suicide cannot be brought

under the ambit of cruelty to convict the person and the prosecution

miserably failed to establish that the deceased was subjected to

cruelty soon before the death. Thus, I am of the view that the

prosecution has not established the guilt of the accused beyond all

reasonable doubt, hence, the judgment of the trial Court needs

interference and the same is liable to be set aside.

29.In the result, the criminal appeal is allowed. The

conviction and sentence as against the appellants/A1 and A2 in the

judgment dated 30.03.2010 in S.C.No.140 of 2009 passed by the

learned Sessions Judge (Mahila Court), Salem, are set aside. The

appellants/A1 and A2 are acquitted from the charges under Sections

498A and 304b of IPC. The fine amount, if any, paid by them is

ordered to be refunded to them. The bail bonds executed by them,

shall stand terminated/discharged.

21.01.2019

Index: Yes/No

AT

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To

1.The Sessions Judge, Mahila Court,
Salem.

2.The Government Advocate (Crl.side)
High Court of Madras.

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M.DHANDAPANI,J.

AT

Crl.A.No.230 of 2010

21.01.2019

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