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Sivakumar-vs-State By Inspector Of Police on 26 October, 2010

Madras High Court Sivakumar-vs-State By Inspector Of Police on 26 October, 2010

DATED: 26.10.2010

CORAM

THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM

CRL.A.No.785 of 2003

Sivakumar .. Appellant/Accused

versus

State by Inspector of Police

Cuddalore O.T. Police Station

(Crime No.120 of 2002) ..Respondent/Complainant

Criminal Appeal filed under Section 374 Cr.P.C., against the Judgment passed in S.C.No.314 of 2002, on the file of the learned Additional Sessions Judge (Fast Track Court -II) Cuddalore dated 30.04.2003.

For Appellant : Mr.Mahendran

For Respondent : Mr.A.Saravanan

Government Advocate (Criminal side)

—–

J U D G M E N T

The appellant herein is the first accused in S.C.No.314 of 2002, on the file of the Additional Sessions Judge (Fast Track Court -II), Cuddalore, and he stands convicted for the offences under Sections 498-A and 306 IPC and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1000/- in default to undergo three months rigorous imprisonment for the offence under Section 498-A IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2000/- in default to undergo six months simple imprisonment under Section 306 IPC. Challenging the said conviction and sentence, the appellant had preferred this criminal appeal.

2. The case of the prosecution, in brief, is that the appellant herein who is the first accused is the husband of the deceased. The second accused is the mother of the first accused. PW-1 is the father of the deceased and P.W.2 is the mother of the deceased. The marriage of the first accused and the deceased was performed on 06.04.1998. At the time of marriage, 15 sovereign jewels and other household articles were given by P.W.1. After the marriage, for four months, the first accused and the deceased were residing together and thereafter the first accused had gone to Dubai. The deceased delivered a male child. Six months after the birth of the child, the first accused came to Cuddalore from Dubai. At that time, the deceased and the child were in the house of P.W.1 and the first accused did not go and meet them. P.W.3 who is related to P.W.1 and others took the deceased to the house of the first accused. P.W-1 gave one sovereign chain, silver kolusu and a silver waist chain to the child. On 23.04.1999, the deceased telephoned to P.W-1 and informed that she was assaulted by the first accused. P.Ws.1 and 2 rushed to the house of the accused. They saw the first accused dragging the deceased holding her tuft. The deceased informed P.W.1 that she was ill-treated because the jewels given to the child was not sufficient. P.W.1 also informed them that he would give more jewels after his son P.W-4 returns from Singapore. On the next day, the deceased had come to the house of P.W.1 and a complaint was given in the All Women Police Station, Cuddalore. She was admitted in the Government Hospital for two days, since she had already sustained injuries due to the assault by the first accused. A compromise was entered into between the parties in the All Women Police Station, Cuddalore. Both the first accused and the deceased agreed for setting up a separate family. Thereafter, in the year 1999 in the month of October, they were living separately at Karpagavinayagar Street, Indhu Nagar, Cuddalore. The deceased gave birth to another male child. On 25.02.2002, P.W-1 came to know that the deceased had died and then P.W-1 and P.W-2 rushed to the house of the accused and saw the deceased lying dead. He also noticed burn injuries on the body of the deceased. He went to the police station and gave complaint Ex.P.1 at 7.00p.m.

3. P.W.10 on receiving the complaint, registered the case in Crime No.120 of 2002 under Section 174 Cr.P.C and prepared the First Information Report Ex.P.6. He also prepared the observation mahazar Ex.P.9 and rough sketch Ex.P.11. P.W-11 Revenue Divisional Officer also informed and came to the scene of occurrence on 26.02.2002 and at about 10.00a.m., he held inquest. He also recorded the statements of witnesses and prepared inquest report Ex.P.7 and also sent a report Ex.P.8. P.W.12, Superintendent of Police altered the case under Section 498-A and 306 IPC and sent express report Ex.P.10 to the Judicial Magistrate-II, Cuddalore.

4. P.W-8, Doctor held autopsy on the body of the deceased and he issued Ex.P.3 post mortem certificate. He noticed the following injuries:

External Injuries:

Ligature mark seen extending from below left ear. (breath 1 cm) to upper part of anterior of neck to right side below the ear, where the mark becomes broadened (3 cm) sub-cutaneous tissue pale with petichial hemorrhage seen (2) Reddish brown pigmented skin seen left axilla 6 x 4 cms appears ante-mortem. (3) Reddish brown pigmented skin seen anterior chest 3 x 2 cms and over manubrium sterni 1 x 1 cm present and (4) also over back extending from one shoulder to another shoulder up to upper back about 12 x 10 cms. Appears ante-mortem. RM present in all four Limbs. Eyelids closed. Right partially open and mildly congested. Tongue inside the mouth. Ears no bleeding." The Doctor also gave opinion that the deceased would appear to have died of asphyxia due to hanging.

5. P.W-12, Deputy Superintendent of Police after recording statement of witnesses and after completing investigation, laid the final report against the accused 1 and 2 for offences under Sections 304(B), 408 and 306 IPC.

6. In order to establish the case, the prosecution examined P.Ws.1 to P.W.12, marked Exs.P.1 to P.11 and produced material objects M.O.1 series. When the accused were questioned under Section 313 Cr.P.C., they denied their complicity and they have not examined any defence witness nor marked any document. The trial Court after analysing the evidence acquitted the second accused and convicted and sentenced the first accused alone as already stated above.

7. Mr.Mahendran, learned counsel appearing for the appellant/accused submitted that in Ex.P.1 complaint given by P.W.1, he had stated that the first accused and the deceased were living for a period of three years at Vandipalayam and he did not make any allegation against the accused that he ill-treated the deceased during that period. P.W-1 also admitted in the cross examination that in the year 1999, after giving complaint to the All Women Police Station and after the matter was compromised, both the first accused and the deceased were living happily for two years and the deceased also gave birth to a child, and as such, the ingredients of the offence under Sections 498-A and 306 IPC are not made out. The learned counsel for the appellant drew the attention of this Court to the statement of the accused before the Revenue Divisional Officer-P.W.11 in which the first accused had stated that the deceased used to threaten him that she would commit suicide by pouring kerosene and on the date of occurrence, there was only a wordy quarrel.

8. Per contra, the learned Government Advocate (Criminal side) submitted that the accused was ill-treated by the deceased and earlier, complaint was given before the All Women Police Station, Cuddalore, and the matter was compromised. At that time, the deceased had given a statement Ex.P.4 and the first accused had given a statement Ex.P.5. Ex.P.4 would reveal that the first accused ill-treated the deceased and the deceased was also assaulted by the first accused.

9. The learned Government Advocate (Criminal side) further submitted that as per the evidence of P.W.1 and as per the inquest report, burn injuries were seen on the body of the deceased and the post mortem report Ex.P.3 also shows that the deceased sustained burn injuries on her back and left axilla region and Doctor P.W.8 had stated that the deceased could have sustained those injuries due to iron box heat. The deceased sustained these injuries only due to the act of the first accused who only was present at the scene of occurrence. The learned Government Advocate (Criminal side) also submitted that the presumption under Section 113-A of the Evidence Act could be drawn against the accused.

10. This Court considered the submission of both sides and perused the records.

11. It appears from the evidence of P.Ws.1 and 2 and also Exs.P.4 and P.5, earlier a complaint was given by the deceased against the accused in the All Women Police Station, Cuddalore. At that time, the allegation against the accused was that the deceased was ill-treated. Any how, the matter was compromised and the first accused and the deceased were living separately for a period of more than two years. Of course, in Ex.P.1 complaint, P.W.1 had not made out any specific allegation against the accused. He had only stated that when he went and saw the body of the deceased, he saw burn injuries on the body of the deceased due to iron box heat. In the inquest report, Ex.P.7 as per column-7, the burn injuries on the back side and the left flank and left ambit were noticed. Even in Ex.P.3 post mortem report, injury Nos.2,3 and 4 are burn injuries and Doctor P.W-8 had stated that those burn injuries are possible due to iron box heat. This Court also perused the M.O.1 series photos. In the M.O.1 series photos, on the back side of the body of the deceased, reddish burn injuries could be seen. The burn injuries were fresh injuries. They were not a healed injuries even as per the post mortem certificate. The injuries on the back side could not be self-inflicted and they are also not accidental injuries. Admittedly, the first accused and the deceased only were residing in the house. The first accused also admitted before the Revenue Divisional Officer- P.W.11 that at the time of occurrence, he was present in the house and there was a quarrel among the husband and wife. While so, it is the first accused who was responsible for the burn injuries sustained by the deceased. He also has not come forward with any specific explanation.

12. Section 113-A of the Indian Evidence Act is as follows:

"13A. Presumption as to abetment of suicide by a married woman.

When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. For the purposes of this section cruelty shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)."

13. In view of the circumstances available in this case, this Court is to draw a presumption as per Section 113-A of the Indian Evidence Act that the commission of suicide by the deceased has been abetted by her husband. The presumption which is to be drawn by the court is also not rebutted by the accused by any acceptable evidence. His statement before the Tahsildar that there was a quarrel between the husband and wife, and therefore, she committed suicide is not sufficient to rebut the presumption that arises in this case in view of the specific fact that the deceased had sustained burn injuries. The cruelty committed by the first accused to the deceased is established by the prosecution beyond reasonable doubt. The conviction on the accused under Section 498-A and 306 IPC are confirmed.

14. The learned counsel appearing for the appellant prayed for leniency with regard to the sentence imposed on the first accused. Considering the age of the first accused that now he is 47 years old and more than eight years had elapsed from the date of occurrence, the sentence of imprisonment is reduced to a period of one year rigorous imprisonment for the offence under Section 498-A and also for the offence under Section 306 IPC. The fine amount imposed on the accused is confirmed.

15. Except the above modification regarding the sentence of imprisonment, the criminal appeal is dismissed.

16. The trial Court is directed to take steps immediately to bring the accused/appellant into custody to serve the remaining period of imprisonment.

ksr

To

1.The Additional Sessions Judge, FTC II, Cuddalore.

2.The Inspector of Police, Cuddalore O.T.Police Station

3.The Public Prosecutor, High Court,

Chennai

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