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Umapathy Alias Shankar vs The Assistant Commissioner Of … on 24 October, 2019

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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CRL.A.No.435 of 2013

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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CRL.A.No.435 of 2013

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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CRL.A.No.435 of 2013

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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CRL.A.No.435 of 2013

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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CRL.A.No.435 of 2013

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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CRL.A.No.435 of 2013

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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CRL.A.No.435 of 2013

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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