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Suresh vs State By Inspector Of Police on 21 March, 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.03.2019

CORAM:

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

Crl.A.No.674 of 2010

Suresh Appellant

Vs

State by Inspector of Police
Kandili Police Station, Vellore Respondent

Prayer:- This Criminal Appeal is filed, against the judgement of conviction and
sentence, dated, 22.10.2010 made in SC.No.262 of 2008, by the Additional
District and Sessions Judge, Fast Track Court, Tiruppathur, Vellore.
For Appellant : Mr.E.Kannadasan

For Respondent : Mr.K.Prabakar, APP

JUDGMENT

This Criminal Appeal is filed, against the judgement of conviction and

sentence, dated, 22.10.2010 made in SC.No.262 of 2008, by the Additional

District and Sessions Judge, Fast Track Court, Tiruppathur, Vellore, convicting

and sentencing the Appellant/ accused for the offence under Section 498A of

IPC to undergo two years Simple Imprisonment and to pay a fine of Rs.1,000/-,

in default, to undergo three months Rigorous Imprisonment and for the offence

under Section 304B of IPC, to undergo seven years Rigorous Imprisonment

and to pay a fine of Rs.1000/-, in default, to undergo six months Rigorous

Imprisonment and ordering the sentences to run concurrently.

2. The Appellant/ accused was charge sheeted for the offences
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under Section 4 of the Dowry Prohibition Act and Sections 498A and 304B of

IPC, alleging that the marriage between the Appellant/ accused and the

deceased Sangeetha took place before four years from the date of occurrence,

and that before two months before the date of occurrence, the Appellant/

accused harassed the deceased, by demanding a sum of Rs.25,000/-, a cot

and a bureau towards dowry and unable to tolerate the harassment meted out

to her by the Appellant/ accused, the deceased died on 06.2.2008 at 8.00 p.m.

by consuming poison.

3. The case was taken on file in SC.No.262 of 2008, by the

Additional District and Sessions Judge, Fast Track Court, Tiruppathur, Vellore

and necessary charges were framed. The accused had denied the charges and

sought for trial. In order to bring home the charges against the accused, the

prosecution examined PW.1 to PW.10 and also marked Exs.P1 to P15 and

MO.1.

4. On completion of the evidence on the side of the prosecution, the

accused was questioned under Section 313 of Cr.PC as to the incriminating

circumstances found in the evidence of prosecution witnesses and the accused

has come with the version of total denial and stated that he has been falsely

implicated in this case.

5. The court below, after hearing the arguments advanced on either

side and also looking into the materials available on record, while acquitting the

Appellant/ accused for the offence under Section 4 of the Dowry Prohibition Act,

found the accused/appellant guilty for the offences under Sections 498A and

304B of IPC and awarded punishments, as referred to above, which is
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challenged in this Criminal Appeal.

6. This court heard the submissions of the learned counsel on either

side.

7. The learned counsel for the Appellant/ accused would submit that

the ingredients for the offence under Section 304B of IPC have not been proved

beyond all reasonable doubts and that even according to the Prosecution, it is

the evidence of PW.3, during the enquiry done by the Executive Magistrate that

the victim committed suicide by consuming poison, suspecting that the

Appellant was having illicit intimacy with his sister in law and that the victim was

not having consummation for several years of marriage and that she was also

suffering from severe stomach ailment, which lead her to commit suicide and

that the allegations against the Appellant have not been proved beyond all

reasonable doubts and the benefit of doubt is to be given to the Appellant/

accused.

8. The learned counsel for the Appellant/ accused would submit that

it is the admitted statement of PW.1 in Ex.P1 that the Appellant and the

deceased were living happily together and there is absolutely no material to

show that soon before her death, the victim was subjected to cruelty and that in

order to infer the presumption against the accused, it is imperative that there

should be legal evidence to prove that soon before her death, the victim was

subjected to such cruelty or harassment and that when the evidence, in respect

of the Appellant having committed cruelty soon before her death, was lacking,

the Trial Court erred in convicting the Appellant for the offence under Section

304B of IPC.

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9. The learned Additional Public Prosecutor for the Respondent

would vehemently oppose, stating that the Prosecution has proved its case

beyond all reasonable doubts and that PW.1 to PW.4 have categorically stated

that there was demand of dowry and that the victim was subjected to cruelty on

account of demand of Rs.25,000/- and that the Appellant had also demanded a

cot and a bureau and that as per Section 113B of the Indian Evidence Act, the

Court shall presume that the Appellant had caused the dowry death and that a

duty is cast upon the Appellant/ accused to rebut the presumption and no

evidence has been let in by the Appellant/ accused as rebuttal, whereas the

Prosecution has clearly proved that there was demand for dowry, by cogent

evidence and that when the presumption against the Appellant has not been

rebutted by the Appellant, the Trial Court has rightly convicted the Appellant/

accused and he would pray for dismissal of this Criminal Appeal.

10. I have given my careful and anxious consideration to the rival

contentions put forward by either side and thoroughly scanned through the

entire evidence available on record and also perused the impugned judgement

of conviction, including the relevant provisions of Law and authorities of various

Courts.

11. On perusal of the impugned judgement of conviction and

sentence, it is seen that the Trial Court has mainly relied on the evidence of

PW.1 to PW.4 to base conviction for the offences under Sections 498A and 306

of IPC, by drawing presumption under Section 113B of the Indian Evidence Act.

Now, the question to be decided is as to whether there are valid evidence to

make out a case for the offences under Sections 498A and 304B of IPC.
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12. According to the Prosecution, the deceased died on 6.2.2008 at

9.00 p.m, by consuming poison, due to the cruelty meted out to the deceased

by the Appellant/ accused, by demanding dowry. The marriage took place

between them four years before the date of occurrence. It was alleged that the

Appellant/ accused demanded a sum of Rs.25,000/-, a cot and a bureau

towards dowry and demanding so, the Appellant/ accused caused cruelty to the

deceased. In such circumstances, the ingredients under Section 498A and

304B of IPC are attracted against the Appellant/ accused.

13. PW.1, PW.3 and PW.4 are the close relatives of the deceased.

PW.5 is the Revenue Divisional Officer, who conducted inquest and prepared

Ex.P7, inquest report. PW.6 is the Doctor, who treated the deceased. Ex.P7 is

the post-mortem report.

14. At the outset, in its judgement, the Trial Court has given a

finding that there was no contention raised by the Appellant with regard to the

delay in lodging the complaint, Ex.P1, however, it has held that it was natural

that since the occurrence had happened in the night hours, the complaint was

given in the early morning and hence, it was held that delay is not fatal. Even

assuming that there was a delay in lodging the First Information Report, the

delay in such like matters cannot be fatal to the Prosecution and it has to be

borne in mind that matters arising out of a matrimonial dispute are always

extremely sensitive and it is, after serious consideration and debate amongst

the victims’ family, that the FIR is lodged, as has been held by the Honourable

Supreme Court in its decision reported in 2010 15 SCC 363 (Rajkumar and

others Vs. State of Punjab).

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15. Now, considering the conviction under Section 304B of IPC, it is

relevant to refer to Section 304B of IPC, which reads as follows:-

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

It can be seen from the provisions of Section 304B of IPC that to sustain the

conviction under Section 304B of IPC and to prove a death as ‘dowry death’,

the essential ingredients to be established are that (i) death is caused in

unnatural circumstances, (ii) death must have occurred within seven years of

the marriage of the deceased and (iii) soon before her death, the deceased

was subjected to cruelty or harassment by her husband or any relative of her

husband for or in connection with, any demand for dowry.

16. Firstly, the fact that the deceased had committed suicide, by

consuming poisonous substance cannot be disputed, inasmuch as, as per the

evidence of PW.7, Doctor, who conducted the post-mortem on the body of the

deceased and Ex.P13, post-mortem report, the deceased died due to

consuming poison. Thus, it is seen that the death of deceased was an
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unnatural death.

17. Secondly, PW.1 , in his evidence in chief, has deposed that the

marriage between the Appellant and the deceased took place two or four years

before the date of occurrence. PW.4 has also deposed that the marriage

between the Appellant and the deceased took place two or four years prior to

the occurrence. Though there are different version regarding the date of

marriage, when compared with the date of occurrence, it can be held that the

death of the deceased had occurred within seven years of the marriage of the

deceased.

18. Thirdly, the question is as whether the Prosecution has proved

that soon before her death, the deceased was subjected to cruelty or

harassment by her husband or any relative of her husband for or in connection

with, any demand for dowry, by cogent and clinching evidence.

19. PW.4, who is the uncle of the deceased, in his evidence, has

deposed that at 4.00 p.m. on the date of occurrence, PW.4 contacted the

appellant over phone and advised him not to torture the deceased, to which the

appellant replied to contact the deceased only and that the deceased told to

PW.4 that the appellant tortured her by beating her and demanding money, cot

and bureau and PW.4 told her that he will come on the next day and enquire

the issue. It is, thus, clear from the evidence of PW.4 that soon before her

death, the deceased was subjected to cruelty by the appellant, by demanding

dowry.

20. The aforesaid evidence of PW.4 is also corroborated by the

evidence of PW.1, who is also the uncle of the deceased. PW.1 has deposed
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that PW.2 and PW.3 had told that after their marriage, the appellant harassed

the deceased by demanding a sum of Rs.25,000/-, a cot and a bureau. PW.5,

the Revenue Divisional Officer, who conducted inquest, has also stated in his

evidence that already the Deceased informed about the harassment meted out

to her by the appellant to PW.4 and opined in the inquest report, Ex.P7 that the

appellant harassed the deceased, by demanding Rs.25,000/-, a cot and a

bureau and hence, the deceased committed suicide by consuming poison.

Hence, it is clear that the appellant harassed the deceased by demanding

dowry and subjected the deceased to cruelty soon before her death.

21. In this regard, now, it is to be analysed in the light of Section

113B of the Indian Evidence Act and as to whether, the appellant/ accused has

rebutted the presumption under Section 113B of the Indian Evidence Act, by

valid evidence. If any death is caused in connection with dowry demand,

Section 113B of the Indian Evidence Act, 1872 comes into play. The essential

requirements to be proved for raising a presumption under Section 113B of the

Indian Evidence Act, 1872 are that (i) whether the accused has committed

dowry death of a woman, (ii) a woman was subjected to cruelty or harassment

by her husband or his relatives, (iii) such cruelty or harassment was for or in

connection with any demand for dowry and (iv) such cruelty or harassment was

soon before her death.

22. According to the appellant/accused, the deceased died due to

other circumstances, particularly, due to the intolerable stomach pain, she

committed suicide and without conducting proper investigation, the final report

has been filed. However, this Court finds no valid evidence both oral and
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documentary let in by the appellant/ accused to show that the deceased died

due to other circumstances. Hence, the presumption under Section 113B of the

Indian Evidence Act, drawn by the Trial Court is rightly justified. In other words,

the Appellant/ accused has failed to rebut the presumption under Section 113B

of the Indian Evidence Act, by cogent and convincing evidence.

23. Though PW.1, PW3 and PW.4 are the close relatives of the

deceased and interested witnesses, it is settled law that the related witness

would not allow the real culprit to escape and implicate the person who is

innocent. However, the evidence has to be carefully analysed, as has been

held in 2010 1 SCC Crl. 676 (Vijayakumar Vs. State). In the case on hand, a

detailed and careful analysis of the evidence is done as above.

24. Mere fact that PW.1, PW.3 and PW.4 are related witnesses will

not falsify their evidence, since because it was not also established by the

Appellant/accused that there was previous animosity between them and that

due to the previous animosity, the appellant/accused was implicated falsely and

the appellant has not even made an averment in this regard.

25. The next contention of the learned counsel for the Appellant/

accused is that the Prosecution has failed to prove that the appellant/ accused

subjected the deceased to cruelty, by demanding dowry.

26. In this regard, there are ample evidence to the effect that there

was demand of dowry by the appellant/ accused and the deceased was

subjected to cruelty. PW.4 has deposed in his evidence that two hours prior to

the occurrence, the deceased told about the cruelty meted out to her by the

appellant/ accused.

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27. To draw the presumption under Section 113B of the Indian

Evidence Act that a person has committed the dowry death of a women, there

must be material to show that soon before the death of a woman, such a

woman was subjected to cruelty or harassment for or in connection with

demand of dowry. The Prosecution has let in evidence, as analysed above, to

draw the presumption under Section 113B of the Indian Evidence Act as

against the Appellant/ accused. To rebut such presumption, on the side of the

defence, no evidence both oral and documentary was let in. Hence, it can be

safely held that the Prosecution has proved its case beyond all reasonable

doubts, by letting in valid evidence.

28. Now coming to the charges under Section 498A of IPC, in order

to attract the provisions of Section 498A of IPC, the cruelty or harassment

meted out to the wife by her husband or relatives of her husband should be to

the extent that it became unbearable. Thus, the essential ingredients of Section

498A of IPC are (i) a woman must be married, (ii) she must be subjected to

cruelty and (iii) cruelty must be of the nature of harassment of such woman,

with a view to coerce her to meet unlawful demand for property or valuable

security.

29. As discussed above, PW.1, PW.3 and PW.4, in their evidence,

have cogently deposed that after their marriage, the deceased complained that

the appellant/ accused was demanding Rs.25,000/-, a cot and bureau and

harassing her by demanding so. It is seen from the evidence that there was a

constant harassment done to the deceased by the Appellant/ accused and it is

also proved by the Prosecution that the deceased died by consuming poison,
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unable to tolerate the cruelty meted out to her by the Appellant/ accused.

Hence, it can safely be held that the Appellant/ accused has committed the

offence under Section 498A of IPC.

30. As discussed above, when it also appears from the statements

of the above witnesses that the deceased was maltreated and the accused

made demands for more dowry and for that he harassed the deceased, as has

come in the prosecution evidence, in my opinion, the Trial Court has rightly

appreciated the evidence in relation to Sections 304B of IPC and also

under Section 498A of IPC. The impugned judgement of conviction and

sentence passed against the accused being based on cogent reasons deserves

to be upheld.

31. In the result, the criminal appeal is dismissed. The impugned

judgement of conviction and sentence is confirmed. The bail granted to the

Appellant/accused is cancelled. The Trial Court shall take necessary steps to

secure the presence of the Appellant/ accused and commit him to prison to

undergo the remaining period of sentence.

21.03.2019

Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
Srcm

To:

1. Inspector of Police, Kandili Police Station Thiruppathur, Vellore District.

2.The Public Prosecutor, High Court, Madras

3.Additional District and Sessions Judge, Fast Track Court, Tiruppathur, Vellore
District

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A.D.JAGADISH CHANDIRA, J.

Srcm

Crl.A.No.674 of 2010

21.03.2019

http://www.judis.nic.in

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