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Senthil Kumar vs State By on 14 November, 2018

1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 14.11.2018

CORAM:

THE HON’BLE MR.JUSTICE M.V.MURALIDARAN

Criminal Appeal No.190 of 2009

1.Senthil Kumar
2.Angammal … Appellants

Vs.

State by
The Inspector of Police,
All Women Police Station,
Udumalpet,
Coimbatore District. … Respondent
(Crime No.3 of 2006)

Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., against
the judgment passed in S.C.No.367 of 2006 on the file of the Sessions
Judge, Magalir Neethimandram, Coimbatore, dated 26.03.2009.

For Appellants : Mr.B.Kumarasamy

For Respondent : Mrs.T.P.Savitha
Government Advocate (Crl.Side)

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JUDGMENT

This appeal is directed against the Judgment of conviction dated

26.03.2009 made by the Learned Sessions Judge (Magalir

Neethimandram), Coimbatore.

2.The appellants herein/accused are son and mother

respectively, who faced charges in the above Session Case for offences

of treating the 1st appellant’s wife Veeraselvi cruelly and abetting her

to commit suicide.

3.It is the prosecution case that the marriage between the 1st

appellant/1st accused Senthil Kumar and one Veeraselvi had taken

place in the year 2005. The 1st appellant herein and his mother

namely Angammal, the 2nd appellant demanded pongal seervarisai and

gold ring and gold chain from Veeraselvi. The appellants ill-treated

Veeraselvi making above demands and thereby due to cruelty faced at

the hands of appellants, Veeraselvi committed suicide by hanging on

19.02.2006 at 5.00 P.M. Thus the appellants being root cause for the

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death of Veeraselvi such that treating her cruelly, caused her to

commit suicide. Hence FIR was registered against the appellants in

Crime No.3 of 2006.

4.Thereafter final report was laid before the Learned Judicial

Magistrate No.I, Udumalpet in PRC.No.18 of 2006. As the offences

being exclusively triable by the Court of Sessions, the case was

committed to the learned Principal District and Sessions Judge,

Coimbatore and the same was made over for Trial and disposal before

the Trial Court namely the learned Sessions Judge, (Magalir

Neethimandram), Coimbatore and was taken on file in SC.No.367 of

2006.

5.The Trial Court framed charges under Sections 498-A and 304-

B of IPC and the prosecution in order to substantiate their case, totally

examined 12 witnesses and marked 18 Exhibits and produced one

material object namely Violet Colour Saree.

6.PW-1 Kandhasamy is the father of the deceased Veeraselvi. He

is the first informant in the above case. PW-4 namely Senthil Kumar is

the brother of the deceased. PWs-5, 6 and 7 namely Mylsamy,

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Subramaniyan and Kittusamy are brothers of PW-1. PW-8 is the wife of

PW-6 Subramaniyan. PW-9 Chitra is Police Constable. PW-10

Venkatesan is the Sub-Collector who did inquest and furnished enquiry

report. PW-11 Umamaheshwari is Sub-Inspector of Police who

registered FIR and PW-12 Gopal is Deputy Superintendant of Police

conducted investigation and filed charge sheet. PWs-2 and 3 namely

Mariyammal and Krishnan are doctors who made postmortem of the

deceased Veeraselvi.

7.The Trial Court on appraisal of the oral and documentary

evidence found the appellants are guilty of said offences and thereby

convicted and sentenced both the appellants to undergo 3 years

Rigorous Imprisonment and Rs.2,000/- fine for the offence under

Section 498-A of IPC, each in default to undergo Simple Imprisonment

of 6 months and 10 years Rigorous Imprisonment and fine of

Rs.5,000/- under section 304-B of IPC, each in default to undergo

Simple Imprisonment of 6 months.

8.Aggrieved over the said conviction and sentence the appellants

are before this Court by way of this criminal appeal challenging the

conviction as baseless contending them to be innocent and have not

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committed any offences. It is their specific contention that the above

conviction against them is unsound, illegal and unsustainable and the

same is made against the Criminal Jurisprudence where the

prosecution has absolutely failed to establish their case.

9.It is the case of appellants that the deceased Veeraselvi

suffered out acute stomach pain and because of it she committed

suicide by hanging. In actual on seeing the deceased hanging, the 1 st

appellant and his father rushed to save her life she was taken to the

hospital by car. Whereas contrarily prosecution has created a story as

if Veeraselvi faced cruelty and ill treatment at the hands of appellants

and as though there was dowry demand. They also plead not

responsible for the death of deceased contending that they did not

harass or committed cruelty to the deceased demanding dowry or any

articles.

10.Per contra, the Learned Government Advocate (Criminal Side)

would submit that only on due apprisel of oral and documentary

evidence adduced by prosecution and that the prosecution has

established chain of events and proven their version through PW-1 to

PW-12 and vide Exhibits PW-1 to PW-18 has established their case

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beyond reasonable doubt the conviction was made by the Trial Court.

11.It is his further contention that the deceased Veeraselvi faced

harassment and dowry demand at the hands of appellants. Only due to

said harassment and cruelty, Veeraselvi was driven to commit suicide.

Thus he prays for dismissal of criminal appeal by contending that the

conviction and sentence passed against the appellants are just and

proper.

12.I heard Mr.B.Kumarasamy, learned counsel for the appellants

and Mrs.T.P.Savitha, learned Government Advocate (Criminal Side) for

the respondent and perused the entire materials available on record.

13.it is seen that the reason projected by the prosecution as to

cause of Veeraselvi’s suicide is that there was demand of Pongal

seervarisai and demand for gold chain and ring. According to the

prosecution as the deceased was not in a position to fulfill said

demand, she was put to harassment by the appellants.

14.Therefore this Court finds deem fit to scrutinize the impugned

order and the deposition made by the prosecution witness in this

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regard and hence it would be useful to firstly look into the complaint

given by PW1, the father of the deceased Veeraselvi.

15.In Exhibit-P1 there is no averment found denoting any dowry

demand. Further in Exhibits-P2 to P4 the Medical and Forensic

certificate denotes that a rope mark is seen in right ear and opinioned

that the deceased would have died due to hanging.

16.Exhibit-P5, is the statement made before P-10 by

Panchayathar who appeared to be the inmates of street. It is their

version that they heard some issue developed in appellant’s family

with regard to demand of household articles. They also opined that the

deceased Veeraselvi might have committed suicide out of ill treatment

which might have been committed by the appellants. Thus their

statement according to this Court is unsafe to be relied upon as it is

nothing but hear say statement.

17.On further perusal of documents from Exs-P6 to P8 though

certain allegations were made against the 2nd appellant, the mother-

in-law, in as much the 1st appellant concerned there is no allegation

made against him that he demanded household articles or dowry. The

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sole allegation leveled against the 1st appellant that he failed to defend

the deceased from his mother’s ill-treatment.

18.Whereas it is seen that the conviction over appellants is made

by the Trial Court relying upon evidence of PW-1, PW-4 and PW-6 to

PW-8 and also holding that the accused has not suggested with the

medical officer as to alleged stomach pain. The Trial Court further held

that if at all Veeraselvi had stomach pain, symptoms would have

revealed during autopsy. The Trial Court while convicting the

appellants also relied upon decisions reported in 2008 (2) LW Crl 988

and CDJ 2008 SC 767 wherein it is observed that even when position

of evidence is found to be deficient the remainder is sufficient to prove

guilty of accused not withstanding acquittal of other accused.

19.The Trial Court further by adopting the formula of chaff can

be separated from grain scrutinized evidence PW-1, PW-4 and PW-6 to

PW-8 holding that the legal maxim “falsus in uno in omni bus” has no

application in India and witnesses cannot be branded as liars.

20.On careful perusal of records, it is seen that PW-12 namely

Gopal the Deputy Superintendent of Police who investigated the

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offence and filed charge sheet has deposed that PW-1 and PW-4 during

his enquiry they have not stated any alleged dowry demand made by

the appellants. It is equally importance to state that he had not taken

into account of R.D.O.’s Report during his investigation.

21.In as much as the enquiry conducted by PW-10 R.D.O., it is

seen that from Ex-P5 the joint statements of Panchayatharas made

ready by R.D.O. It has no evidentiary value, since being a hear say

evidence and uncertain statements.

22.In the case on hand not even single neighbour to the accused

has examined as prosecution witnesses to establish that there was a

quarrel between the 1st appellant, his wife and that deceased

Veeraselvi faced perhaps harassment as projected by the prosecution.

23.In fact all the witnesses namely PW-1, PW-4 to PW-8 are the

family members of the deceased Veeraselvi and no independence

witnesses are examined in the case of hand. No doubt that evidence of

witnesses since being a relative of victim cannot be ignorant, at the

same time the Court has to see that the evidence is tuned or

exaggerated. In this context it would be useful to say that PW-1, PW-4

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to PW-8 have deposed that the appellants have strangulated the

deceased causing her death. Thus their version is nothing but

improved and exaggerated intended to cause the appellants punished.

24.Thus it is pertinent to note that when the medical evidence

discloses that it was suicide by hanging but PW-1 and PW-4 had

deposed that the accused/appellants strangulated the deceased and

thereby she died.

25.Further with regard to PW-4’s version, it is found that there

are contradicting statements such that in one occasion PW-4 says that

his sister Veeraselvi’s hair was cut down and she was humiliated for

dowry. However, there is no such say by him during investigation and

statement. In yet another aspect the PW-4’s evidence fails for the

reason that the statements made by him that he received knowledge

of his sister death from nurse who met him in road while PW-4’s bike

break-down while his way following his sister who was taken to the

hospital. Whereas PW-12 the investigation officer made clear that PW-

4 has not stated any alleged cut down of hair of deceased Veeraselvi

or as such during bike break down he received the death news of his

sister and he also further made clear that PW-4 had not stated

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anything about the bike break down to him.

26.At this juncture, it is equally important to state that PW-1,

PW-4 and PW-6 to PW-8 made clear that some jewels and other

Seervarisai were provided to deceased only as part of customary

practice.

27.In as much as PW-8’s evidence is concerned, her statement

under 161(3) of Cr.P.C. and deposition contradicts as to demand and

alleged manner of the occurrence. At the same time PW-7 namely

Kittusamy younger brother of PW-1 Kandasamy is found to be hearsay

evidence.

28.Though according to Ex-P1 complaint, it was usual for PW-1

to PW-4 to meet deceased Veeraselvi every week from her marriage,

absolutely there is no whisper about alleged dispute regarding Pongal

seervarisai in the complaint. The introduction of such allegation at later

point of time, while giving statement during investigation is an

afterthought, introducing new prosecution theory.

29.In so for as Pw-6 evidence is concern, PW-6 Subaramaniyan

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who happened to be elder brother of PW-1 and PW-5 deposed that

deceased Veeraselvi was happy in her matrimonial house, he further

deposed that he has not given any statements to the investigation

officer as to alleged money dispute and cruelty.

30.It is evident that during cross examination PW-1, PW-4 and

PW-5 have stated that the deceased Veeraselvi lead happy life with the

1st appellant. However, it is their case that 2nd appellant has harassed

the deceased Veeraselvi.

31.Yet another contention of appellants that the PW-1’s family

suffered out of tendency to commit suicide. Projecting as such, the

appellants contented that PW-1’s wife i.e., deceased Veeraselvi’s

mother had also committed suicide in deceased Veeraselvi family.

Though the fact was disputed by PW-1 stating that his wife died out of

an accidental slip into well while drawing water, the same remains

contradicted by PW-6 conforming that PW-1’s 1st wife i.e., deceased

Veeraselvi mother committed suicide by falling into well.

32.It is noteworthy that PW-1 has admitted that as per their

caste custom Pongal Seervarisai was done. Hence there will be no

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harassment with regard to one another reason projected behind

harassment of deceased Veeraselvi that there was dispute with regard

to separate living isolating from A2. In this regard it is relevant to note

that PW-1 during his cross examination has accepted to send the 1st

appellant and deceased Veeraselvi to live separately from 2nd

appellant. In as much as the medical evidence concerned the doctors

PW-2 and PW-3 who have conducted postmortem has opinion that the

death was due to hanging.

33.Though the Trial Court has taken aid of few Judgments in its

support holding that Chaff can be removed from grain, the same

cannot be done in a piece meal manner such that drawing adverse

statements and deposition alone. Though minor discrepancy can be

disregarded, the evidence at the same time should be credit worthy.

More so, here it is not the case of deficient evidence, but a case of

contradicting evidence, therefore the Judgments relied by the Trial

Court will have no application on appellant’s case.

34.As seen above, version of PW1, PW4 to PW8 is found to be

exaggerated and improved from that of their statements by

introducing a new case as though it is not a suicide but a murder by

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strangulation. Though the evidence of interested witness cannot be

ignored for being relative, but if their version stands improved,

contradicting and untrustworthy and an interest is established over

them to see the accused be convicted. Their evidence is unsafe to rely.

But the prosecution though endeavored to cite interested witness but

had not taken step to examine a neighbor of the appellants. Whereas

in this regard it is seen that the finding of the Trial Court is that a

neighbor need not be examined as it would be an unnecessary

harassment in letting evidence. Absolutely such approach is erroneous

and unacceptable. Based on the facts and circumstances the best

evidence has to be produced by the prosecution.

35.As seen above, there are major contradictions in prosecution

story and corresponding evidence adduced before the Trial Court and

thereby the prosecution has failed to establish their version beyond

reasonable doubt. Hence by giving the benefit of doubt to the accused,

they are acquitted from all the charges.

36.In the result:

(a) this Criminal Appeal stands allowed by setting aside the

judgment of conviction and sentence imposed in S.C.No.367 of

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2006 dated 26.03.2009 on the file of the learned Sessions

Judge, Magalir Neethimandram, Coimbatore;

(b) the appellants/accused are acquitted from all the charges

punishable under Sections 498A and 304 B of I.P.C.

(c) Fine amount if any paid by the appellants/accused shall be

refunded.

14.11.2018

vs

Index: Yes
Internet: Yes

To

The Sessions Judge,
Magalir Neethimandram,
Coimbatore.

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M.V.MURALIDARAN, J.

vs

Pre-delivery order made in
Crl.A.No.190 of 2009

14.11.2018

http://www.judis.nic.in

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