CRL.A.No.435 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 24.10.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
CRL.A.No.435 of 2013
Umapathy Alias Shankar .. Appellant/
Accused
Vs.
The Assistant Commissioner of Police
Washermanpet Range
Chennai .. Respondent/
Complainant
Criminal Appeal filed under Section 374 Cr.P.C., to call for the records
in S.C.No.231 of 2010 on the file of Mahila Court, Chennai and set aside the
conviction and sentence of the appellant under Section 306 and Section498A IPC.
For Appellant : Mr.Ramesh Kumar Chopra
For Respondent : Ms.P.Kritika Kamal,
Govt. Advocte (Crl. Side)
JUDGMENT
This appeal is directed against the judgment and order of conviction
and sentence dated 17.04.2013 passed by the Mahila Court, Chennai in
S.C.No.231 of 2010.
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2. The deceased Sasikala was the daughter of Adilakshmi (PW1) and
Sengotuvel (PW2). They hail from Periyanatham Village in Chengalpattu District.
Sasikala was married to the appellant on 04.02.2004 and after marriage, they
lived in Door No.26/17, Double Pit Lane, Tondiyarpet, Chennai, which is around
70 kms from Periyanatham Village. The couple were blessed with a girl child in
the year 2005.
3.It is the case of the prosecution that at the time of marriage, the
parents of Sasikala agreed to give 6 sovereigns of gold, but gave only 5 sovereigns
and promised to give the balance one sovereign later, but did not give it and so,
the appellant tortured Sasikala for it. Unable to withstand which, Sasikala
committed suicide by self-immolation by dousing with Kerosene in her
matrimonial home on 25.04.2009 at 01.00pm. Immediately, the appellant rushed
her to the Kilpauk Medical College Hospital where she was examined by
Dr.Rajasekaran (PW10), who made the necessary entries in the Accident Register
(P5) and admitted her to the burns ward for treatment. She was found with 80%
burns. On getting information, the family members of Sasikala came to Chennai
and on the written complaint (Ex.P1) given by Adilakhsmi (PW1), the mother of
Sasikala, Sowrinathan (PW13), Inspector of Police, registered a case in Crime
No.192 of 2009 under Section 309 IPC on 25.04.2009 at 17.00. Later, Sasikala
succumbed to the injuries on the same day at 17.50 hours in the Kilpauk Medical
College Hospital and therefore, the case was altered to one under Section 174
Cr.P.C vide alteration report (Ex.P12).
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4. Since the death of Sasikala was within 7 years of marriage,
Balusami(PW11), the Executive Magistrate, conducted inquest, examined the
parents of Sasikala and the appellant in the presence of Panchayatdhars and
filed the Inquest report (Ex.P8). Balusami (PW11) in his evidence as well in
the inquest report has stated that the death of Sasikala was due to dowry
harassment. After the inquest report, the case was again altered to one
under Sections 498-A and Section304-B IPC. The body was sent for post-mortem and
the post-mortem certificate Ex.P13 shows that Sasikala appeared to have
died of shock due to burns. No dying declaration of Sasikala was recorded.
The appellant was arrested by the police on 03.05.2009 at 12 hours. After
examining witnesses and collecting various reports, Rajaram (PW14),
Assistant Commissioner of Police, filed a final report in P.R.C.No.27 of 2010
before the XV Metropolitan Magistrate, George Town, Chennai under Sections
498-A and Section304-B IPC and alternatively under Section 306 IPC against the
appellant.
5. On appearance of the appellant, the case was committed to the
Court of Session, Chennai in S.C.No.231 of 2010 and was made over to the
Mahila Court, Chennai for trial. The trial Court framed charges under Section
498-A and Section304-B IPC and an alternate charge under Section 306IPC was also
framed.
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6. When questioned, the appellant pleaded ‘not guilty’. To prove
the case, the prosecution examined 14 witnesses, marked Exs.P1 to P13 and
MO1 to MO3. When the appellant was questioned under Section 313 Cr.P.C
on the incriminating circumstances appearing against him, he denied the
same and did not offer any explanation. No witness was examined on the
side of the appellant nor any document marked.
7. After considering the evidence on record and hearing either
side, trial Court by judgment and order dated 17.04.2003 in S.C.No231 of
2010 acquitted the appellant of the offence under Section 304-B IPC, but
convicted and sentenced him as under:
Provision under Sentence
which convicted
Section 498-A IPC Three years rigorous imprisonment and
fine of Rs.5000/-, in default to undergo
three months simple imprisonment
Section 306 IPC Ten years rigorous imprisonment and fine
of Rs.10,000/-, in default to undergo
6 months simple imprisonment
8. Challenging the conviction and sentence, the appellant has filed
the present appeal.
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9. Heard Mr.Ramesh Kumar Chopra, learned counsel for the
appellant and Ms. Kritika Kamal, learned counsel Government Advocate
(Criminal Side) appearing for the respondent.
10. Adilakshmi (PW1) and Sengotuvel (PW2), the parents of
deceased Sasikala have stated about the marriage of the appellant with
Sasikala on 04.02.2004 and have also stated that the appellant demanded 6
sovereigns of gold and Rs.5,000/- as cash, but they gave only 5 sovereigns of
gold and Rs.5000/- cash and promised to give the balance one sovereign
later. They have further stated that since one sovereign gold was not given
by them, the appellant, after consuming liquor, tortured Sasikala and did not
even come for the wedding of her sister. Indira (PW3), Selvi (PW4),
Gnanasundari (PW5) and Tamilvendan (PW6), who hail from Periyanatham
village and known to the family of the deceased, have stated that even at
the time of marriage, there was a dispute with the appellant with regard to
one sovereign of gold and that Sasikala used to come to her natal village and
told them about the sufferings she underwent at the hands of the accused.
They have also stated that the accused was addicted to liquor.
11. Mr.Chopra, learned counsel for the appellant contended that in
the complaint (Ex.P1) that was given by Adilakshmi (PW1), she had not said a
word about the demand of one sovereign gold by the appellant or about any
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CRL.A.No.435 of 2013
cruelty. He further contended that even in the statement (Ex.P2) that was
given by PW1 and PW2 to the Executive Magistrate during inquest, they have
not stated about the demand of one sovereign gold by the appellant.
Therefore, he contended that in the anxiety to implicate the appellant, PW1
to PW6 had improved the case by alleging that the demand of one sovereign
persisted from the date of marriage to the date of suicide. He also
contended that PW3 to PW6 were the neighbours of PW1 and PW2 and they
naturally supported PW1 and PW2.
12. Per contra, learned Government Advocate submitted that just
because Adilakhsmi (PW1) had not stated in the complaint about the
harassment meted out to the deceased, the entire prosecution evidence
cannot be jettisoned because at that time, the parents of the deceased
would have been in a state of grief. The First Information Report cannot be
treated as an encyclopedia of the prosecution case. However, as pointed by
Mr.Chopra, even in the statement given by PW1 and PW2 to the Executive
Magistrate during inquest, they have not stated even a word about the
demand of one sovereign by the appellant. They only alleged that he is
addicted to liquor, did not go for work and was harassing Sasikala for more
dowry.
13. Of course, the trial Court has rightly acquitted the appellant of
the charge under Section 304-B IPC, because there are no credible materials
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to show that there was demand of dowry by the appellant in connection with
the marriage especially in the light of the fact that PW1 and PW2 had not
stated anything about it either in the complaint (Ex.P1) or in the statement
given to the Executive Magistrate (Ex.P2). However, there is sufficient
evidence to show that the appellant was addicted to liquor and was
subjecting Sasikala to cruelty, which had pushed her to commit suicide.
Sasikala’s death was suicide by self-immolation has been established by the
prosecution beyond cavil. The appellant has also not denied the fact that
the death was a suicide. Unless she was subjected to cruelty, there is no
good reason for her to commit suicide leaving behind a 3 ½ years old child. A
week prior to committing suicide Sasikala had telephoned to the house of
Gnanasundari (PW5) and had spoken to her parents. This fact has been
spoken by both PW1 and PW2 and corroborated by PW5 who has stated that
at that point of time, there was no telephone or mobile with PW1 and PW2
and since she (PW5) had a telephone connection, Sasikala called to her house
and spoke to her parents. In that conversation also, Sasikala has complained
about the cruelty suffered by her at the hands of the appellant. Thus, there
are sufficient materials to hold that Sasikala was subjected to cruelty by the
appellant, who was addicted to liquor and was not going for work. PW1 and
PW2 have stated that Sasikala was working as a Tailor in an export garment
factory and was managing the family with her income. Appellant was a
parasite on Sasikala’s earnings, he being addicted to liquor. In the light of
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such evidence, no material has been placed by the appellant to discharge the
burden under Section 113A of the Evidence Act.
14. Mr.Chopra, learned counsel for the appellant placed reliance
on the judgment of the Supreme Court in Rajbabu and another Vs. State of
M.P dated 24.07.2008 (Crl.A.No.895 of 2003) and submitted that the mere
fact a woman committed suicide within 7 years of her marriage and that she
had been subjected to cruelty by her husband, does not automatically give
rise to the presumption that the suicide had been abetted by her husband.
In the same judgment, Hon’ble Supreme Court has stated that the Court is
required to look into all the other circumstances of the case.
15. As alluded to above, the other proved circumstances in this
case are that the appellant was not going for work, addicted to liquor and
was living on the income of Sasikala and torturing her for more money.
Therefore, this Court does not find any infirmity in the conviction of the
appellant.
16. Mr.Chopra, learned counsel for the appellant prayed for
leniency in sentence by submitting that the child is with the appellant and
the appellant has reformed.
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17. Taking these facts into consideration, this Court is of the view
that in the interests of justice, 10 years of rigorous imprisonment imposed
by the Court below for offence under Section 306 IPC can be reduced to
three years of rigorous imprisonment.
In this result, this Criminal Appeal is partly allowed. The
conviction of the appellant stands confirmed and sentence imposed for the
offence under Section 498-A IPC is also confirmed, but the sentence imposed
for the offence under Section 306 IPC is reduced to 3 years rigorous
imprisonment, which shall run concurrently.
24.10.2019
gpa
To
1.The Mahila Court
Chennai
2. The Assistant Commissioner of Police
Washermanpet Range
Chennai
3. The Public Prosecutor
Madras High Court, Chennai
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CRL.A.No.435 of 2013
P.N. PRAKASH, J.
gpa
CRL.A.No.435 of 2013
24.10.2019
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