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T.Kannadasan-vs-State By Inspector Of Police on 11 December, 2009

Madras High Court T.Kannadasan-vs-State By Inspector Of Police on 11 December, 2009

DATED: 11.12.2009

CORAM:

THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

Crl.A.No.145/2003

1.T.Kannadasan

2.Kamalam Appellants

Vs

State by Inspector of Police

Virudhachalam Police Station

Cuddalore District Respondent

Prayer:- This Criminal Appeal is filed against the judgement dated 8.1.2003 passed in SC.No.47/2001 by the learned Additional District Judge (FTC-III) Virudhachalam, convicting and sentencing the first appellant for the offence under Section 304B of IPC to undergo 7 years Rigorous Imprisonment and for the offence under Section 498A to undergo three years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo three months Rigorous Imprisonment and ordering the sentences to run concurrently and the 2nd Appellant for the offence under Section 498A of IPC to undergo Rigorous Imprisonment for two years and to pay a fine amount of Rs.2000/- in default to undergo three months Rigorous Imprisonment and acquitting the 2nd Appellant from the charges under Section 304B of IPC. For Appellant : Mr.Saravanakumar

For Respondent : Mr.N.R.Elango, APP

ORDER

This Criminal Appeal is filed against the judgement dated 8.1.2003 passed in SC.No.47/2001 by the learned Additional District Judge (FTC-III) Virudhachalam, convicting and sentencing the first appellant for the offence under Section 304B of IPC to undergo 7 years Rigorous Imprisonment and for the offence under Section 498A to undergo three years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo three months Rigorous Imprisonment and ordering the sentences to run concurrently and the 2nd Appellant for the offence under Section 498A of IPC to undergo Rigorous Imprisonment for two years and to pay a fine amount of Rs.2000/- in default to undergo three months Rigorous Imprisonment and acquitting the 2nd Appellant from the charges under Section 304B of IPC.

2. The case of the Prosecution is as follows:-

a. PW.1 Thangasubramanian is the father of the deceased Suba, who had been given in marriage to the 1st Appellant/A1. PW.2 Banumathi is the mother of the deceased and the 2nd Appellant/A3 is the mother of A1. A4 is the sister of A1 and A2 is the father of A1. PW.3 Manikandan is the elder brother of the deceased and PW.4 Kalaiselvi is the sister of PW.1. PW.5 Amsayal is a neighbour. At the time of the marriage, the parents of the deceased had promised to give 40 sovereigns of gold jewels and a Hero Honda Motor Cycle to the 1st Appellant and the deceased Suba. But, at the time of marriage only 33 sovereigns of jewels were given. The Appellants harassed and tortured the deceased by demanding the remaining 7 sovereigns of jewels. Not being able to tolerate with the cruelty of the accused persons, the deceased consumed poison so as to commit suicide and she was saved with great difficulty and on 10.5.2000 at 8.00 a.m. the deceased poured kerosene on herself and set fire on herself and immediately, she was admitted to the Government Hospital, Virudhachalam. b. PW.9 Dr.Ilavarasan attached to the Virudhachalam Government Hospital gave treatment to the deceased on 10.5.2000 and also to the 1st Appellant for the burn injuries on his two hands and the deceased gave a statement to PW.9 and PW.9 has sent her to Jipmer Hospital, Pondicherry for better treatment, where she died due to burn injuries on 16.5.2000 at 6.00 a.m. c. PW.7 Dr.SM.J.E.Amrose attached to the Jipmer Hospital conducted autopsy on the body of the deceased and opined in the post mortem certificate Ex.P4 that the deceased died of burn injuries.

d. On receipt of intimation from the Virudhachalam Government Hospital, one Chakkaravarthi, Head Constable attached to the Ramanatham Police Station went to the said Hospital and recorded the statement of PW.1 and registered a case in Cr.330/2000 under Section 498A of IPC and Section 4 of the Dowry Prohibition Act and prepared the FIR Ex.P8. PW.12 Inspector of Police attached to the said Police Station went to the place of occurrence examined the witnesses and prepared observation mahazar Ex.P3 and a rough plan Ex.P9 in the presence of the witnesses Sridhar and Manivannan and also seized Mos.1 to 4 viz. plastic kerosene tin, a match box and burnt hair and burnt cloth of the deceased under a mahazar Ex.P2 and examined the witnesses Thangasubramanian, the deceased Suba, Banumathi, Manikandan, Kalaiselvi, Amsayal, Selvaraj, Rajavel and Sarkarai, Rani and Perumal and recorded their statements and sent the Material objects under Form-95 to the court concerned and on 12.6.2000 at 13.00 hours arrested A2 at Virudhachalam Bus Stand and recorded his confession statement in the presence of the witnesses and sent him for judicial custody and on receipt of information that the deceased died on 16.5.2000 at 6.00 a.m., altered the case into one under Sections 489A and 304B of IPC and sent FIR Ex.P10 to the court concerned and sent the case file to PW.13 Kamini, the Deputy Superintendent of Police, Virudhachalam. d. PW.13 took up the case for further investigation and went to the Jipmer Hospital, Pondicherry and conducted inquest and examined the witnesses and recorded their statements and after completing investigation, on 19.6.2000 filed a final report against the accused under Sections 489A and 304B of IPC and on 23.5.2000 arrested the accused and sent them for judicial custody.

3. The case was taken on file in SC.No.47/2001 on the file of the learned Additional District Judge (FTC-III) Virudhachalam and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 11 witnesses (PW.1 to PW.11} and also relied on Exs.P1 to P10 and four material objects (Mos.1 to 4).

4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false.

5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.

6. This court heard the submissions of the learned counsel on either side and also perused the material records placed.

7. Mr.S.Saravanakumar, the learned counsel for the Appellants strenuously contended that there is absolutely no evidence to draw a presumption under Section 113B of the Indian Evidence Act for convicting the 1st Appellant under Section 304B of IPC and when the deceased herself has not stated that she was ill-treated or harassed by the Appellants, the conviction and sentence imposed on the appellants are not sustainable. He would submit that the evidence of the related witnesses Pws.1 to 5 lacks credibility, apart from the fact that there is no evidence that the deceased was subjected to harassment in connection with the dowry demand soon before her death.

8. On the other hand, Mr.N.R.Elango, the learned Additional Public Prosecutor supported the judgment of the trial Court placing reliance on the evidence of the Prosecution.

9. PW.1 and 2 are the parents of the deceased. PW.3 is the brother of the deceased. PW.4 is the brother of PW.1 and PW.5 is the son-in-law of PW.1. PW.10 is also related to PW.1 and PW.11 is an independent witness, who is a neighbour of the accused. Both PW.10 and PW.11 have not stated anything about the harassment meted out to the deceased. The Trial Court relied on the evidence of PWs.1 to 5 to come to the conclusion that she was treated for not meeting out the demands made by the accused persons.

10. 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.

11. In the cases of Kamesh Panjiyar alias Kamlesh Panjiyar Vs. State of Bihar [2005-2-SCC-388], Ram Badan Sharma Vs. State of Bihar with Surya Kant Sharma Vs. State of Bihar [2006-10-SCC-115], Kailash Vs. State of MP [2006-12-SCC-667], the Honourable Supreme Court reiterated and reasserted the settled principles laid down in the case of Hira Lal and others Vs. State (Government of NCT), Delhi [2003-8-SCC-80], wherein the essential ingredients to attract application under Section 304B are stated.

12. In order to appreciate the above said contentions of the learned counsel for the Appellants, we have to make an independent scrutiny of the evidence on record to find out as to whether the order of the Trial Court of conviction of the Appellants can be sustained or not. Their evidence disclosed that 40 sovereigns of jewels were agreed to be given to the deceased at the time of the marriage and 33 sovereigns of jewels were actually given to her during the marriage. According to the witnesses PW.1 to 5, who are related to each other as stated above, all the accused demanded the balance of 7 sovereigns of jewels and subjected the deceased to harassment.

13. Before the court, PW.1 has stated that the accused persons demanded fridge and washing machine and ill-treated his daughter. This statement is not before the investigating officer and when the same was confronted with the investigating officer, it is seen that PW.1 has made the said statement before the court for the first time. It is an improvement made by PW.1 before the court. It appears that the 1st accused/husband of the deceased was the only son to his parents. From PW.5’s evidence, it is seen that before the marriage, setting up a separate establishment for the deceased and the 1st Appellant was discussed. PW.1 to 5 had stated that a Hero Honda Motor Cycle was given to the 1st accused, but the same was taken back from him within six months from the date of the marriage. It has been suggested to the said witnesses that since A1 did not agree to set up a separate family, the Motor Cycle was taken away from him. Though the witnesses denied the said suggestion, but no explanation was forthcoming from them for taking back the Motor Cycle, which was presented to the 1st accused at the time of the marriage.

14. The evidence on record disclose that PW.1 the mother of the deceased had supplied provisions for separate cooking on the date of the incident. This is spoken to by PW.2 in her evidence, wherein she has admitted that she gave materials for cooking through a small girl and the same was given at the request made by her daughter. The deceased in the dying declaration given to the Doctor PW.9 has stated that due to the quarrel with her husband, since he told her to die, she immolated herself. The said dying declaration had been recorded by PW.9 on the same date at 9.55 p.m. when she was brought the the Hospital with burn injuries by her parents. The Doctor has stated that the deceased was conscious at the time of giving the statement and the same has not been challenged by the Prosecution.

15. A1 in the statement given under Section 313 of Cr.PC has stated that the parents of the deceased insisted him to set up a separate family and as he refused, they have taken back the Motor Cycle from him. Further, on the date of the occurrence, the deceased cooked with the materials supplied by her mother, which was not liked by him and he refused to take the food and so the deceased has set fire to herself. His statement is consistent with the statement given by the deceased to PW.9. Admittedly, she had been admitted only by her parents and there cannot be any influence on the deceased to give such a statement by the accused. It is seen that the 1st accused had tried to extinguish the fire and sustained burn injuries on both hands and he was also admitted in the same hospital. But, PWs.1 to 5 deliberately denied knowledge about the injuries sustained by the 1st accused and stated that they were not aware of it. The above said conduct of the said witnesses would clearly show that they do not want to give the true facts before the court, as they were aggrieved over the refusal of the accused to set up a separate family with the deceased.

16. Another significant factor in this case is that the said witnesses have stated that even on the prior occasion, the deceased attempted to commit suicide by consuming poison and she was treated by Doctor one Govindasamy, but the said Doctor has not been examined by the investigating officer. The investigating officer has not made any attempt to investigate on this aspect as to whether any such attempt was made by the deceased on the earlier occasion. Significantly, the deceased has not stated that she was treated cruelly by the accused persons, though she survived for five days. The services of the learned Judicial Magistrate has not been requisitioned, though the evidence on record shows that she was conscious and was alive for five days. After the death of the deceased, who succumbed to the burn injuries on 6.5.2000, the Deputy Superintendent of Police PW.13 has not taken any steps to conduct inquest on the body of the deceased by the concerned Revenue Divisional Officer, in spite of the fact that the deceased had died within 7 years of her marriage. Strangely, Pw.13 has not examined Pws.1 to 5, after she took over investigation.

17. The learned counsel for the Appellants vehemently contended that the investigation was not done in a fair and proper manner and the Deputy Superintendent of Police, who has conducted further investigation, has prejudged the issue and never attempted to find out the truth by enquiring into all the above aspects. The learned counsel for the Appellants pointed out to the evidence of PWs.1 and 2, wherein they have stated that when the deceased was alive, PW.13 the Deputy Superintendent of Police had taken the statement from the deceased. Though the said fact was denied by PW.13, admittedly no steps have been taken to conduct any enquiry by the Revenue Divisional Officer concerned to find out the cause of the death independently. If such an enquiry had been made, there would have been a chance for the accused persons to state their version and the investigating officer could have conducted investigation on the said aspect also to find out as to whether the accused were telling the truth.

18. The learned Additional Public Prosecutor submitted that though the investigation was not conducted in a procedural manner, the accused cannot take advantage of it and there was no material to discredit the testimony of PWs.1 to 5. It is to be noted that there was a dying declaration recorded by PW.9 Doctor, immediately after the occurrence. The truthfulness or authenticity of the dying declaration has not been questioned by the Prosecution and it is not the stand of the Prosecution to discard the dying declaration recorded by the Doctor. In fact, the Prosecution laid emphasis on the dying declaration by exhibiting the same as Ex.P7. The deceased in the dying declaration has stated as below:- @vdf;Fk; vdJ fztUf;Fk; Vw;gl;l rz;ilapy; mth; eP ,we;J ngha;tpL vd;W Twpajhy; nfhgj;jpy; kz;bzz;iza; Cw;wp bfhSj;jp bfhz;nld;/ ,J ehd; Rapepidt[ld; ve;jtpj eph;ge;jKk; ,d;wp bfhLj;j kuz thf;FK:yk;/@

19. The above said dying declaration shows that the deceased had committed suicide due to the usual quarrel with her husband and in the said course of quarrel, he asked her to go and die and in a fit of anger, she committed suicide. It is pertinent to note that she has not whispered anything to implicate the accused to have subjected her to harassment in connection with any demand of dowry. Had she been treated cruelly constantly as deposed by PW.1 to 5, she would not have spared the accused persons, that too, when she had been brought to the Hospital by PW.1 and other family members.

20. It is seen that her parents had insisted for a separate residence, for which A1 did not agree, as he is the only son to his parents. In such circumstances, there is every possibility for PWs.1 to 5 to implicate the accused persons to the suicide committed by the deceased, as they were aggrieved over the refusal of A1 to set up a separate home. The said view gains support. From the evidence of PWs.1 to 5 that the Motor Cycle presented to the 1st accused at the time of marriage has been taken back without any reason. In the absence of any other reason shown by the witnesses for taking back the Motor Cycle, it can only be presumed that they were aggrieved over of not setting up a separate residence by the accused persons for the deceased.

21. The learned Additional Public Prosecutor would submit that though there is no sufficient evidence to attract the offence under Section 304B of IPC, but the material on record is sufficient to convict the Appellants for the offence under Section 498A of IPC.

22. On the other hand, the learned counsel for the Appellants would submit that the evidence of the witnesses about what the deceased had told them against the Appellants as to torture and harassment cannot be made admissible, in view of Section 32 of the Evidence Act as it would be applicable only when the cause of the death of the deceased or the circumstances of the transactions which resulted in her death is in question.

23. It is pertinent to point out that in the latest decision of the Honourable Supreme Court rendered in the case of Ankush Maruti Shinde Vs. State of Maharashtra [AIR-2003-SC-2603], the Honourable Supreme Court raised a moot question as to whether the statements attributed to the deceased could be used as evidence for entering upon a finding that the accused subjected the deceased to cruelty as contemplated under Section 498A of IPC and answered the question in the negative. The Honourable Supreme Court has referred to its decision rendered in the case of Inderpal Vs. State of MP [2001-10-SCC-736], wherein the Honourable Supreme Court considered the matter thus:- "4. We will consider at first the contention as to whether there is any evidence against the appellant which can be used against him for entering upon a finding that he subjected Damyanti to cruelty as contemplated in Section 498-A, IPC. PW-1 father of the deceased and PW-8 mother of the deceased have stated that Damyanti had complained to them of her plight in the house of her husband and particularly about the conduct of the appellant. PW-4 sister of the deceased and PW-5 a relative of the deceased have also spoken more or less on the same line. Exhibit P-7 and Exhibit P-8 are letters said to have been written by Damyanti. In those two letters reference has been made to here life in the house of her in-lawn and in one of the letters she said that her husband had subjected her to beating.

5. Apart from the statement attributed to the deceased none of the witnesses had spoken of anything which they had seen directly. The question is whether the statements attributed to the deceased could be used as evidence in this case including the contents of Exhibits P-7 and P-8 (letters).

6. Before deciding that question we have to point out that the High Court came to a conclusion that the allegation that she committed suicide was not substantiated. A dying declaration was recorded by the Executive Magistrate in which the deceased had stated that she got burns accidentally from a stove. If that be so, death could not be the result of either any harassment or any cruelty which she was subjected to. In this context we may point out that the State has not challenged the finding of the High Court that death of Damyanti was not due commission of suicide.

7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A, IPC disjuncted from the offence under Section 306, IPC the question of her death is not an issued for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned."

24. By applying the said dictum laid by the Honourable Supreme Court in the present case there is no direct evidence to prove that the witnesses had seen the accused harassing the deceased for not satisfying the demand. The witnesses PWs.1 to 5 have stated that they had heard from the deceased about the harassment meted out by her in the hands of the accused persons. In order to make the statement of deceased admissible, the statement must have been made as to the cause of death or as to the circumstances of the transaction which resulted in her death. In this case, the statements allegedly made by the deceased to PWs.1 to 5 cannot be relied upon to hold the Appellants guilty under Section 498A of IPC. In fact, the deceased in the dying declaration has not stated about the cruelty meted out to her and it is merely a quarrel between her and her husband and in a fit of anger, she committed suicide. The deceased has dropped down as a sensitive girl, as she was not able to withstand normal jolts of life.

25. Having regard to the entire evidence discussed above, I am of the considered view that the conviction and sentence imposed on the Appellants by the Trial Court cannot be sustained.

26. In the result, this Criminal Appeal is allowed. The conviction and the sentence imposed by the Trial Court on the Appellants are set aside and they are acquitted of the charges levelled against them. It is seen from the records that the Appellants had been enlarged on bail and the bail bond if any executed by the Appellants shall stand terminated and the fine amount if any paid by the Appellants shall be refunded to them. 11.12.2009

Index:Yes/No

Web:Yes/No

Srcm

ARUNA JAGADEESAN, J.

Srcm

To:

1.The Additional District Judge (FTC-III) Virudhachalam

2.The Public Prosecutor, High Court, Madras

Crl.A.No.145/2003

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