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Udhayakumar vs State Represented By on 24 January, 2019

1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.01.2019

CORAM

THE HONOURABLE MR.JUSTICE M.DHANDAPANI

Crl.A.No.595 of 2009

1.Udhayakumar
2.Rajamani
3.Rangasamy … Appellants

Vs.

State Represented by
Deputy Superintendent of Police,
Periyanaickanpalayam
Sub-division, Coimbatore District. … Respondent

Prayer:
Appeal filed under Section 374 (2) of Cr.P.C. seeking to call for
the records pertaining to S.C.18/2008 on the file of the Sessions
Judge, Magalir Needhimandram, Coimbatore and set aside the
Judgment and Order of Conviction dated 03.06.2009 recorded therein
by the said court convicting the Appellants/accused for the offences
under
section 4 of Dowry Prohibition Act and under sections 498A, 306
and
304B IPC and sentencing them undergo Rigorous Imprisonment
for one year and to pay a fine of Rs.5,000/- each in default to undergo
Simple Imprisonment for six months for the offence U/s 4 of
Dowry
Prohibition Act, to undergo Rigorous Imprisonment for 2 years and to
pay a fine of Rs.500/- each in default to undergo Simple Imprisonment
for six months U/s 498A
IPC, to undergo Rigorous Imprisonment for
10 years and to pay a fine of Rs.5,000/- each in default to undergo
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Simple Imprisonment for six months U/s 306 IPC, to undergo Rigorous
Imprisonment for 10 years and to pay a fine of Rs.5,000/- each in
default to undergo Simple Imprisonment for six months U/s 304B of
IPC.

For Appellants : Mr.R.MD.Nasrullah
for M/s.K.V.Shanmuganathan

For Respondent : Mr.R.Ravichandran
Government Advocate (Crl. Side)

JUDGMENT

The appellants have filed this appeal seeking to set aside the

judgment dated 03.06.2009 made in S.C.No.18 of 2008 by the learned

Sessions Judge, Magalir Needhimandram, Coimbatore.

2.The appellants herein are the accused 1 to 3 respectively, in

the case in S.C.No.18 of 2008. The brief case of the prosecution is as

follows: The first accused is the husband of the deceased, the second

accused is the mother – in – law of the deceased and the third accused

is the father – in – law of the deceased. The marriage between the

first accused and the deceased Sulochana was solemnized on

01.06.2006 at Mettupalayam Vanabadrakaliamman Temple’s Sakthi

Mahal, as per the Hindu Customs and Conventions. The said marriage

was arranged by the elders.

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3.The deceased is the daughter of P.W.1 and sister of P.W.3.

The deceased had studied upto X Standard and was working in

Saradha Mills. P.W.3 was also working in the said Saradha Mills. At

the time of marriage, P.W.1 gave four sovereigns of gold ornaments

and household articles to the deceased and the marriage expenditure

was equally shared by P.W.1 family and accused family. After

marriage, the first accused and the deceased started to live a joint

family life along with the second accused and third accused.

4.The deceased suffered acute stomach pain from her attaining

puberty and for the said disease, the deceased had undergone

treatment at Elango Hospital situated at Mettupalayam. The stomach

pain got aggravated after the marriage. On 10.03.2007 at 11.45 a.m.,

the deceased suffered unbearable stomach pain and the first accused

gave tincture which is a medicinal solution in an alcohol form for

subsiding the pain. Even thereafter, the deceased had stomach pain.

Hence the first accused made efforts to take her to the Hospital in his

bicycle. At that time, the said Sulochana/ deceased poured kerosene

all over her body and set fire by herself. On hearing her cry, the first

accused extinguished the fire by pouring water all over the body. In

the meanwhile, A2 and his brother reached the spot and with the help

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of the said persons, A1 took his wife/ deceased to the Coimbatore

Medical College Hospital in an Auto Rickshaw for treatment.

5.On 10.03.2008 at 12.10 p.m., the deceased Sulochana was

brought by A2 before the Medical Officer attached to the Casualty of

Coimbatore Medical College Hospital, Coimbatore. When the Medical

Officer examined the said Sulochana, she has stated that she

sustained burn injuries by pouring kerosene over her body by herself

at around 11.45 a.m., at her house. She was conscious at that time.

The Medical Officer found that she suffered 65% to 70% of burn

injuries and after giving first aid, the Medical Officer admitted her in

the Burns Ward. The proceeding was incorporated in the Accident

Register and Ex.P17/ copy of accident register was issued. Soon after

the admission of Sulochana at Burns Ward, the Medical Officer sent

Ex.P16/ intimation to the Outpost Police Station attached to

Coimbatore Medical College Hospital, Coimbatore.

6.P.W.11/ Grade-I Police Constable attached to Thudialur All

Women Police station received the intimation over phone about the

particulars of Ex.P16 from the Outpost Police Station, Coimbatore

Medical College Hospital, Coimbatore. Based upon the said intimation,

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P.W.11 went to the Outpost Police Station and received Ex.P16 in

I.R.No.1331. Thereafter, she went to MS-II Burns Ward and examined

Sulochana and obtained Ex.P12/ statement and also obtained the left

thumb impression on it. Thereafter, P.W.11 returned to the Police

Station and on the strength of Ex.P12, registered a case in Crime No.5

of 2007 under Section 309 of IPC. The First Information Report

registered by P.W.11 was marked as Ex.P13.

7.P.W.12/ Inspector of Police took up the case for investigation.

During the course of investigation, P.W.12 examined P.W.1, P.W.3 and

P.W.7 and recorded their statements. Thereafter, P.W.12 went to the

spot of occurrence and prepared Ex.P4/ observation mahazer in the

presence of P.W.7 and Ex.P14/ rough sketch.

8.While the injured was undergoing treatment, the Medical

Officer attached to the Burns Ward sent a requisition to the learned

Judicial Magistrate, to record the dying declaration of Sulochana.

P.W.9/ Judicial Magistrate No.VI, Coimbatore, on 10.03.2007, after

carrying out the necessary formalities recorded Ex.P5/ dying

declaration, wherein, the declarant has stated that for the past one

week she suffered acute stomach pain and therefore, she poured

kerosene over her body and set fire herself. P.W.9 also obtained

Ex.P6/ certificate from the Medical Officer and after completion of the
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proceedings forwarded the same to the learned Judicial Magistrate

No.I, Coimbatore on 12.03.2007.

9.On 15.03.2007, the injured Sulochana succumbed to injuries

at 01.00 a.m. and the death intimation was sent to the Police Station.

Based upon the death intimation, the case in Crime No.5 of 2007 was

altered from under Section 309 of IPC to under Sections 498-A, 306

and 304-B of IPC.

10.P.W.13/ Deputy Superintendent of Police took up the case for

further investigation and since the death of Sulochana occurred within

seven years of marriage, he resorted for an inquiry by the Revenue

Divisional Officer under Sections 174 and 176 of Cr.P.C. and sent the

case file to the Revenue Divisional Officer for appropriate action.

11.P.W.10/ Revenue Divisional Officer, Coimbatore, received the

case file on 15.03.2007 and took up the same for investigation.

During the course of investigation, he went to the Coimbatore Medical

College Hospital, Coimbatore, and in the presence of Panchayatars,

conducted inquest over the dead body and also examined P.W.1,

P.W.3 and the Panchayatars and recorded their statements under

Ex.P7, Ex.P8 and Ex.P9 and also prepared Ex.P10/ inquest report and
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Ex.P11/ inquiry report.

12.In their statements, P.W.1 and P.W.3 had stated that the

accused caused harassment and cruelty for not bringing the dowry

demanded by them and they also ill treated the deceased by

suspecting her fidelity and due to the unbearable cruelty caused by the

accused, the said attempt was done by the deceased. Hence, P.W.10

requested P.W.13 to conduct inquiry to find out the real cause of death

and also sent a requisition to the Professor, Forensic Medicine

Department, Coimbatore Medical College Hospital to conduct autopsy

over the body of Sulochana with a request to send the postmortem

report for necessary action.

13.P.W.2/ Tutor in Forensic Medicine, Coimbatore Medical

College Hospital and one Dr.Diraviyaraj/ Tutor in Forensic Science

Medicine, Coimbatore Medical College Hospital received the requisition

of P.W.10 on 15.03.2007 at 01.00 p.m. The body was identified by

P.W.8/ Woman Head Constable. During autopsy the Medical Officer

preserved the internal organs of the deceased and sent the same to

the Regional Forensic Science Laboratory, Coimbatore through P.W.8.

P.W.2 and Dr.Diraviyaraj issued Ex.P1/ postmortem report.

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14.Thangambhavani, Scientific Assistant Grade-II and Mupdathi,

Assistant Chemical Examiner to Government examined the internal

organs and did not detect any poison over the same. To that effect

she issued Ex.P2/ chemical analysis report. Based upon the

postmortem report and upon considering Ex.P2, P.W.2 and

Dr.Diraviyaraj issued Ex.P3/ opinion, wherein, they opined that the

cause of death was due to the burns and its complications.

15.When P.W.13 examined P.W.1 and P.W.3, they had stated

that the accused requested the deceased while undergoing treatment

not to disclose the reality as it would cause problem to the accused

and the deceased in turn requested them not to disclose anything

against the accused as she if survived has to live with the accused.

Hence, they did not make any statement against the accused. But

infact the accused joined together and caused unbearable cruelty to

the deceased for the non-fulfilment of the dowry demand and the

accused also suspected the fidelity of the deceased and ill-treated her.

16.On 28.07.2007, P.W.13 completed the investigation of the

case and laid the final report against the accused under Section 4 of

the Dowry Prohibition Act and under Sections 498-A, 306 and 304-B of

IPC.

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17.When the accused were questioned under Section 313 of

Cr.P.C and explained about the incriminating circumstances available

against them in the evidence, they denied the same as not true.

Thereafter, trial was proceeded against the accused.

18.On the side of the prosecution, 13 witnesses were examined

as P.W.1 to P.W.13 and 17 documents were marked as exhibits Ex.P.1

to Ex.P.17. On the side of the accused no witness was examined,

however, five documents were marked as exhibits Ex.D1 to Ex.D5.

19.After trial, the Trial Court convicted the appellants/ accused

under Section 4 of the Dowry Prohibition Act and under Sections 498-

A, 306 and 304-B of IPC and sentenced them to undergo 1 year

rigorous imprisonment and to pay a fine of Rs.5,000/- each in default

to undergo 6 months simple imprisonment for the offence under

Section 4 of the Dowry Prohibition Act; to undergo 2 years rigorous

imprisonment and to pay a fine of Rs.500/- each in default to undergo

6 months simple imprisonment for the offence under Section 498-A of

IPC; to undergo 10 years rigorous imprisonment and to pay a fine of

Rs.5,000/- each in default to undergo 6 months simple imprisonment

for the offence under Section 306 of IPC; and to undergo 10 years
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rigorous imprisonment and to pay a fine of Rs.5,000/- each in default

to undergo 6 months simple imprisonment for the offence under

Section 304-B of IPC. The sentences of imprisonment alone were

ordered to run concurrently. Aggrieved by the said conviction and

sentence, the appellants / accused have filed this appeal before this

Court.

20.The learned counsel appearing for the appellants would

submit that in her dying declaration, the deceased has categorically

stated that she suffered acute stomach pain and therefore, she poured

kerosene over her body and set fire herself. The deceased has not

implicated any of the accused in the said offence. Hence the evidence

let in by P.W.1 and P.W.3 before P.W.13 that the accused requested

the deceased while undergoing treatment not to disclose the reality as

it would cause problem to the accused and the deceased in turn

requested them not to disclose anything against the accused as she if

survived has to live with the accused and hence, they did not make

any statement against the accused, is nothing but false. The said

tutored statements were made inorder to implicate the accused in the

offence.

21.The learned counsel appearing for the appellants would
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further submit that there in nothing available on record to show that

the accused have instigated the deceased to commit suicide,

particularly, there is no iota of evidence to implicate the appellants 2

and 3/ accused 2 and 3 in the present crime. Accordingly, he prayed

for acquittal of the appellants/ accused.

22.The learned Government Advocate (Crl. Side) would submit

that after treatment if the deceased was alive, necessarily she has to

live with the accused. Hence, in dying declaration the deceased did

not implicate the accused in the above said crime and during

treatment she requested P.W.1 and P.W.3 not to disclose anything

against the accused. The evidence of P.W.1 and P.W.3 clearly

demonstrate that due to the torture and harassment of the accused,

the deceased was forced to take the extreme step of committing

suicide. The above act itself would amount to instigation. Hence, the

well considered judgment of the Trial Court need not be interfered

with. Accordingly, he prayed for dismissal of the appeal.

23.Heard the arguments advanced on either side and perused

the materials placed on record.

24.In the light of the above submissions, now it has to be
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analyzed as to whether the prosecution has proved the guilt on the

accused beyond all reasonable doubt.

25.It is not in dispute that on 10.03.2007 the deceased

sustained burn injuries and she was taken to the Coimbatore Medical

College Hospital for treatment. When the Medical Officer examined

the deceased, she has stated that she sustained burn injuries by

pouring kerosene over her body by herself at around 11.45 a.m., at

her house.

26.It is also relevant to note here that immediately after the

occurrence, the first accused extinguished the fire by pouring water all

over the body. Thereafter, he also took the deceased to the

Coimbatore Medical College Hospital for treatment. P.W.9/ Judicial

Magistrate No.VI, Coimbatore, on 10.03.2007, recorded Ex.P5/ dying

declaration, wherein, the deceased has stated that for the past one

week she suffered acute stomach pain and therefore, she poured

kerosene over her body and set fire herself.

27.Further, the evidence of P.W.1 and P.W.3 clearly indicate that

initially, there was no dispute inbetween the accused. After A1 lost his

job, he started cruelty by demanding additional dowry from the

deceased. Initially P.W.1 has taken care of her daughter by giving
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Rs.2,000/- and Rs.3,000/- frequently. However, their evidence makes

it clear that they did not make any allegation as against the accused 2

and 3 and they made allegations as against A1 only.

28.Further P.W.5/ brother of P.W.1 in his evidence has deposed

that after marriage, he visited the deceased at her matrimonial home

and at that time, the deceased cried as if she was pushed into a well

and that the accused suspected her fidelity and she exposed the

sufferings made by the accused.

29.The evidence of P.W.1 and the dying declaration does not

corroborate with each other. On perusal of the entire evidence, the

evidence of P.W.1, P.W.3 and P.W.5 clearly indicate that there was

dowry demand by A1. Immediately after A1 lost his job, he started

harassing the deceased by forcing the deceased to bring additional

dowry from P.W.1. Except dowry demand to implicate the first

accused under Section 4 of the Dowry Prohibition Act and under

Sections 498-A of IPC, there is no ingredients available to implicate

him under Sections 306 and 304-B of IPC.

30.Abetment involves a mental process of instigating or aiding a

person to commit suicide. Without any positive act, instigating or

aiding the person to commit suicide, conviction cannot be passed
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merely on the basis of some statement. In the absence of any

evidence implicating the first accused under Sections 306 and 304-B of

IPC is not sustainable one. There is also no ingredients available to

implicate the accused 2 and 3 under Section 4 of the Dowry Prohibition

Act and under Sections 498-A, 306 and 304-B of IPC.

31.The very same issue has been dealt with by the Hon’ble Apex

Court in the decision reported in (2013) 4 SCC 131 (Bakshish Ram

and another Vs. State of Punjab), the relevant portion of which

reads as follows:

“18.We have already noted Section 304B
IPC and its essential ingredients. Section 113-
B of the Evidence Act is also relevant for the
case in hand. Both
Sections 304-B and 113-B
of the Evidence Act were inserted by
Dowry
Prohibition (Amendment) Act 43 of 1986 with a
view to combat the increasing menace of
dowry deaths.
Section 113B of the Evidence
Act reads as under:

“113-B. Presumption as to dowry
death.- When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman has been subjected by such
person to cruelty or harassment for, or in
connection with, any demand for dowry, the
Court shall presume that such person had
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caused the dowry death.”

Explanation.- For the purposes of this
section, “dowry death” shall have the same
meaning as in
section 304B of the Indian Penal
Code (45 of 1860).”

As per the definition of “dowry death” in
Section 304B IPC and the wording in the
presumptive
Section 113B of the Evidence Act,
one of the essential ingredients amongst
others, in both the provisions is that the
woman concerned must have been ‘soon
before her death’ subjected to cruelty or
harassment “for or in connection with the
demand for dowry”. While considering these
provisions, this Court in
M.Srinivasulu vs. State
of A.P., (2007) 12 SCC 443 has observed thus:

“8. ‘4. … The presumption shall be raised
only on proof of the following essentials:

(1) The question before the court must
be whether the accused has committed the
dowry death of a woman. (This means that the
presumption can be raised only if the accused
is being tried for the offence under
Section
304-B IPC.)
(2) The woman was subjected to cruelty
or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for,
or in connection with any demand for dowry.

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(4) Such cruelty or harassment was soon
before her death.’*”

20.Another relevant aspect to be noted is
that it was appellant No.1, husband of the
deceased who took the deceased to the
hospital and it was he who informed the police
as well as parents of the deceased. It is also
brought to our notice that he did not make any
attempt to run away from the place of
occurrence.

21.In view of the above discussion, we
are satisfied that the prosecution failed to
establish its guilt beyond reasonable doubt and
the trial Court and the High Court committed
an error in convicting the appellants and the
same are liable to be set aside. Since appellant
No.1 has already served out the period of
sentence of 7 years, no further direction is
required. However, since appellant No.2 is on
bail, her bail bonds shall stand discharged. The
appeal is allowed.”

32.Considering all the aspects, the prosecution miserably failed

to establish that soon before her death, the deceased was subjected to

cruelty or harassed in connection with demand of dowry. However, I

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17

appellant/ first accused to convict him under Section 4 of the Dowry

Prohibition Act and under Sections 498-A of IPC and there is no

ingredients available to implicate him under Sections 306 and 304-B of

IPC. Hence, this Court acquits the first appellant/ first accused from

the charge under Sections 306 and 304-B of IPC. This Court is also

inclined to modify the sentence imposed on the first appellant/ first

accused under Section 4 of the Dowry Prohibition Act and under

Sections 498-A of IPC.

33.Further, there is no ingredients available to implicate the

appellants 2 and 3/ accused 2 and 3 under Section 4 of the Dowry

Prohibition Act and under Sections 498-A, 306 and 304-B of IPC.

Hence, this Court is inclined to set aside the judgment dated

03.06.2009 in S.C.No.18 of 2008 passed by the learned Sessions

Judge, Magalir Needhimandram, Coimbatore, in respect of appellants 2

and 3/ accused 2 and 3 are concerned.

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34.In the result, the criminal appeal is partly allowed in respect

of the first appellant/ first accused. The first appellant/ first accused is

convicted under Section 4 of the Dowry Prohibition Act and under

Sections 498-A of IPC. The first appellant/ first accused shall undergo

1 year rigorous imprisonment and shall pay a fine of Rs.5,000/- in

default shall undergo 3 months rigorous imprisonment for the offence

under Section 4 of the Dowry Prohibition Act and shall undergo 1 year

rigorous imprisonment and shall pay a fine of Rs.500/- in default shall

undergo 3 months rigorous imprisonment for the offence under Section

498-A of IPC. The modified sentences of imprisonment alone imposed

on the first appellant/ first accused shall run concurrently. The first

appellant/ first accused is acquitted from the charge under Sections

306 and 304-B of IPC. The conviction and sentence imposed on the

first appellant/ first accused by the learned Sessions Judge, Magalir

Needhimandram, Coimbatore, vide judgment dated 03.06.2009 made

in S.C.No.18 of 2008 under Sections 306 and 304-B of IPC are hereby

set aside. The Trial Court as well as the Investigation Officer shall take

necessary and expeditious steps to secure the custody of the first

appellant/ first accused to undergo the remaining part of the sentence.

35.The criminal appeal is allowed in respect of the appellants 2

and 3/ accused 2 and 3. The conviction and sentence as against the
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appellants 2 and 3/ accused 2 and 3 in the judgment dated

03.06.2009 in S.C.No.18 of 2008 passed by the learned Sessions

Judge, Magalir Needhimandram, Coimbatore, are set aside. The

appellants 2 and 3/ accused 2 and 3 is acquitted from the charge

under Section 4 of the Dowry Prohibition Act and under Sections 498-

A, 306 and 304-B of IPC. The fine amount, if any, paid by them is

ordered to be refunded to them. The bail bonds and sureties, if any,

executed by them, shall stand terminated/ discharged.

24.01.2019

pri

Speaking Order/ Non Speaking Order

Index: Yes/ No

Internet: Yes/ No

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To

1.The Sessions Judge, Magalir Needhimandram,
Coimbatore.

2.The Deputy Superintendent of Police,
Periyanaickanpalayam
Sub-division, Coimbatore District.

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M.DHANDAPANI,J.

pri

Crl.A.No.595 of 2009

24.01.2019

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