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Shanthakumar-vs-Deputy Superintendent Of Police on 23 November, 2006

Madras High Court Shanthakumar-vs-Deputy Superintendent Of Police on 23 November, 2006

DATED : 23/11/2006

CORAM

THE HONOURABLE MR. JUSTICE S.TAMILVANAN

Crl. R.C. No.959 of 2004

Shanthakumar ..Petitioner

Vs

Deputy Superintendent of Police

Gudiyattam. ..Respondent

This Criminal revision is preferred by the petitioner/A1 against the Judgment dated 27.02.04 made in C.A.No.49 of 2001 on the file of the Additional Sessions Court/Fast Track Court, Vellore confirming the conviction and sentence imposed by the Assistant Sessions Judge, Gudiyatham made in S.C.No.149 of 2000 dated 06.06.2001 For Petitioner : Mr.M.V.Karthick

For Respondent : Mr.R.Muniappa raj, Govt. Advocate (Crl. Side)

ORDER

This Criminal Revision Case is directed against the Judgment dated 27.02.04, in C.A.No.49/2001 on the file of the Additional District and Sessions Judge, Vellore, confirming the conviction and sentence imposed by the Assistant Session Judge, Gudiyattam in S.C.No.149/2000 dated 06.06.2001.

2.It is an admitted fact that the petitioner/accused married the deceased-Shanthi, on 15.09.96, as arranged by their parents and both of them were living together as husband and wife, at Nellorepettai in Gudiyatham Taluk. While so, on 27.02.97 between 2.00 p.m. and 4.30 p.m., the deceased was found drowning in a lake in the village, which was noticed by PW6 and on hearing the alarming voice raised by the persons including her husband the deceased was rescued from the lake but subsequently, she died.

3. On a complaint given by PW1, who is a close relative of the deceased, the law was set in motion and the revision petitioner, his father and mother were arrayed as A1, A2 and A3 respectively, and as such facing the trial. In support of the contention of the prosecution, 12 witnesses were examined and 9 exhibits were marked. Considering the oral and documentary evidence, the Trial Court convicted the revision petitioner, under Section 304(B)IPC and sentenced to undergo 7 years R.I., under Section 498(A) IPC, sentenced him to undergo 2 years R.I. and to pay a fine of Rs.1,000/- and in default, to undergo 3 months R.I., and under Section 4 of the Dowry Prohibition Act, convicted and sentenced him to undergo 6 months R.I. and to pay a fine of Rs.1,000/- in default to undergo 3 months R.I. The Trial Court has acquitted the other accused. Against which, the petitioner/accused, preferred an appeal before the Additional District and Sessions Judge/Fast Track Court, Vellore, which confirmed the conviction and sentence imposed by the Trial Court below and dismissed the appeal. Aggrieved by the same, this criminal revision Petition has been preferred by the petitioner/A1.

4. The learned counsel appearing for the revision petitioner would contend that there is no evidence to convict the petitioner/accused under the above said Sections. According to the learned counsel, the deceased Shanthi wife of the revision petitioner was not done to death by homicidal violence, nor committed suicide but it could have been an accident on account of drowning. The learned counsel further contended that as per the prosecution case, on seeing the drowning of the deceased, the revision petitioner also raised alarming voice.

5. The Assistant Surgeon PW9 attached to the Government Hospital, Gudiyattam who conducted post mortem on the dead body of the deceased-Shanthi and found the following injuries as stated in the post mortem certificate, ExP4

1/ 2 linear abrasions each 2 x = cm on right shoulder

2/ Abrasion 1 x 1 cm on right cheek

6.As contended by the learned counsel for the revision petitioner, the above said injuries could have been caused even due to falling down in the lake. PW6 is the eyewitness to the occurrence. According to him, the decease had fallen down into the lake by accident and on hearing the hue and cry of the public, he went to the scene of occurrence and saw the deceased alive and according to him the petitioner who was also raising alarming voice. Then, the deceased was rescued from the lake by the persons available there. Thereafter, the deceased was taken to the Hospital, where she died. Then her body was taken into an auto to the residence of the revision petitioner. The evidence of eye witness PW6 and the medical evidence would clearly show that the deceased had died due to drowning, as contended by the learned counsel for the petitioner.

7. The learned Government Advocate (Criminal Side) would contend that as per Section 113(B) of the Indian Evidence Act, there shall be a presumption of guilt if it is a dowry death and as contemplated under Section 304(B) IPC, the Court shall draw the presumption of guilt in case of dowry death until the contrary is proved by the petitioner/accused. The learned counsel for the revision petitioner contended that the medical evidence and the evidence of eye witness would probabilise that the deceased could have accidentally fallen down into the lake and get aberrations and other symptoms of drowning.

8.Per contra, the learned Government Advocate (Criminal Side) would contend that there is sufficient evidence to show that the deceased had been subjected to dowry harassment, so as to punish him under Sections 304 (B) and 498(A) IPC and Section 4 of Dowry Prohibition Act, in view of the evidence given by Pws 1 to 3. It is not in dispute that PW1 is a close relative of the deceased, Pws 2 and 3 are the father and mother respectively of the deceased, merely on the ground of their close relationship, courts cannot discord their evidence, but scrutinize their evidence with due care.

9. PW2, father of the deceased has stated in his evidence that he had invited his daughter the deceased and her husband, the petitioner herein to his residence in Orissa, as he was employed there and according to him they had stayed there for about a week there, then the deceased informed her father that her husband was harassing by demanding TVS 50, grinder, and also money and thereby causing mental and physical cruelty. PW3 the mother of the deceased has also deposed similar evidence that the revision petitioner/accused had caused dowry harassment. It is seen that Ex.B2 Inland letter dated 19.12.96 sent by PW2, to one Govindammal, who is his sister stating that he had aggrieved over the ill-treatment of his daughter meeting out at the hands of the revision petitioner and hence he requested his sister by the letter to look after his daughter. The said Inland letter would show that the revision petitioner/accused was in a habit of causing dowry harassment, after the marriage with the deceased. As found by the Court below, the prosecution evidence is sufficient to convict the accused under Section 498 (A) IPC and Section 4 of the Dowry Prohibition Act. Therefore I am of the view to confirm the conviction and sentence rendered by the Court below, under Section 498 (A) IPC and Section 4 of the Dowry Prohibition Act. But considering the evidence on record, I am of the view that the charge against the revision petition/A1 has not been proved under Section 304 B IPC beyond reasonable doubt, though the charge under Section 498A IPC and Section 4 of the Dowry Prohibition Act have been proved.

10.Therefore, if the initial burden is discharged by the prosecution that the occurrence would attract 304(B) IPC, the burden shifts on the accused as per Section 113(B) of the Indian Evidence Act. Here in this case, no doubt that the deceased Shanthi died within 7 years after her marriage. As contended by the learned counsel for the revision petitioner, the prosecution has not established whether the death is Homicide, Suicide or an Accident. Even as per evidence of PW1, as discussed by the Court below, the deceased was drowning and according to PW4 on enquiry she came to know that the deceased had stomach upset and had been to attend the call of nature, on the banks of village lake and got into water by accident and drowned. Pws 2 and 3 are not eye witnesses. This vital suspicious circumstance is not ruled out by the prosecution evidence and further to draw the presumption under Section 113(B) of Indian Evidence Act, soon before her death, the woman should have been subjected to cruelty or harassment in connection with demand of dowry for which there is no evidence. The evidence of Pws 1 to 4 would not be sufficient to hold that the deceased was subjected to cruelty or harassment soon before her death. Therefore I am of the considered view that there is manifest error in law committed by the Courts below, in drawing presumption under Section 304 (B) IPC with reference to Section 113(B) of the Indian Evidence Act.

11. The learned counsel for the revision petitioner would contend that the revision petitioner is only a bullock cart driver and the Court below is of the view that he had caused dowry harassment, but the evidence available on record would go to show that it is an accidental death.

12. Therefore considering the facts and circumstances, leniency would be shown to the revision petitioner/accused in respect of imposing sentence. Considering the facts and circumstances of the case, I am of the view, to confirm the conviction and sentence under Section 4 of the Dowry Prohibition Act and also the conviction under Section 498(A) IPC, but the sentence imposed under Section 498(A) IPC is modified as one year R.I. instead of 2 years with a fine of Rs.1000 with default sentence as imposed by the Courts below and acquit him from the charges under Section 304(B) IPC.

13. In the result, the conviction and sentence imposed by the Court below under Section 4 of the Dowry Prohibition Act is confirmed and the sentence imposed under Section 498(A) IPC is modified to one year R.I., instead of 2 years R.I. with a fine of Rs.1000 with default sentence as imposed by the Court below. The petitioner is acquitted for the offence under Section 304(B) IPC and the sentence imposed under Section 304(B) IPC is set aside.

14. With the above modification, this Criminal Revision Case is disposed of.

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