"...Later on, when A2/mother-in-law came into their house and residing in the ground floor, the problem arose....... " a sad story of how some lives were wasted .....
Notes
- Marriage on 22.02.2002.
- Initially they were residing happily
- Later on, when A2/mother-in-law came into their house and residing in the ground floor, the problem arose.
- Wife committed suicide Unfortunately on 10.08.2002. Death due to hanging
- Allegations of dowry demand etc follow. All witnesses are wife side witnesses and one person who knows the wife side for 20 years !!
- Husband states that he had all the items (TV, phone , motor cycle etc allegedly demanded) before his marriage and so there was no need / chance of demanding
- He had been taking his wife to doctor etc., and showed proof of same
- P.W.7/Tahsildar, who conducted inquest, in his final report Ex.P10, stated that as per evidence of Panchayatars, deceased and A1 lived happily and death of deceased is not due to dowry demand.
- One abrasion is found on the wife's cheek. Court suspects that husband slapped wife or did something to her and she died
- 306 - abetment to suicide set aside, however conviction under 304B and 498a affirmed !
- A chilling statement of law is pronounced by the Honb'le court "....Once the ingredients of Sections 304B and 498A IPC are established by the prosecution, the presumption under Section 113B of Indian Evidence Act shall be drawn. Since A1 is a competent person to speak about as to why her wife committed suicide, he ought to have proved his innocence..."
- So the accused himself has to prove that he is NOT guilty !
- Final Judgment : Husband to serve jail term !!
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.07.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.508 of 2004
Ramamurthy .. Appellant/A1
v.
State rep. by
Assistant Commissioner of Police
Harbour Range, Chennai. .. Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., against the judgment of conviction and sentence dated 19.03.2004, made in S.C.No.209 of 2003 on the file of the Sessions Court, Magalir Needhi Mandram, Chennai.
For Appellant : Mr.M.L.Ramesh
For Respondent : Mr.C.Emalias, Government Advocate (crl.side)
J U D G M E N T
The criminal appeal arises out of the judgment of conviction and sentence dated 19.03.2004, made in S.C.No.209 of 2003 on the file of the Sessions Court, Magalir Needhi Mandram, Chennai, whereby the first accused was convicted for the offences under Sections 498A, 304B and 306 IPC and sentenced to undergo eight years rigorous imprisonment and imposed a fine of Rs.20,000/- in default in payment to undergo six months simple imprisonment.
2.The respondent has filed a charge sheet against the accused 1 and 2 for the offences under sections 498A, 304B IPC and against the accused 3 and 4 for the offences under Sections 498A r/w 109 and 304B r/w 109 IPC and against A1 to A4 under Section 306 IPC, stating that Kala, who is the wife of A1 died on 10.08.2002 within six months from the date of marriage alleging that she died by committing suicide only due to harassment and cruelty caused by A1 to A4.
3.The case of the prosecution is as follows:
(i) Deceased Kala is the sister of P.W.1/Dayalan, P.W.2/Sekar and P.W.3/Shanthi. A1 is her husband, A2 is her mother-in-law, A3 is her sister-in-law and A4 is A3's husband. The marriage between A1 and Kala was performed on 22.02.2002. At the time of marriage, Kala was given 15 sovereigns of jewels and A1 was given 7 sovereigns of jewels. Apart from that, all the house hold articles were given to Kala. After the marriage, both of them were living happily for about 2 to 3 months. They were residing separately at No.73, Portugese Street, Muthiyalpettai, Chennai. Later on, when A2/mother-in-law came into their house and residing in the ground floor, the problem arose. Deceased Kala became pregnant. P.W.4/Jamuna who knows well about the family of Kala for the past 20 years, used to go to her house, at the time, P.W.4 found swelling in the face of Kala and one Jimmiki was found broken. Kala told her that she was not given proper food and her husband demanding T.V. and other articles, had beaten her. When Kala was in the house of A1, he did not take her to the Hospital on the allegation that Kala was not given motorcycle and the same was informed by the deceased to P.W.1/Dayalan over phone.
(ii) On 11.08.2002, at about 1.30 a.m. in the early morning, A1 told P.W.1 that Kala was suffering from chest pain and on the way to hospital, she died. When P.W.1 went to hospital, he was informed that since Kala died by hanging, the body has been kept in mortuary. After seeing the dead body, P.W.1/Dayalan gave Ex.P1 complaint to P.W.9.
(iii) P.W.9/Sudhakar, Sub-Inspector of Police in Muthialpet Police station, received Ex.P1 complaint from P.W.1 at 4.00 a.m. on 11.08.2002 and registered a case in Crime No.395 of 2002 under Section 304B IPC and prepared printed F.I.R. Ex.P12. Then he handed over the case to the Assistant Commissioner for investigation.
(iv) P.W.10/Rajagopalan, Assistant Commissioner, took up the matter for investigation at 6.00 a.m. on 11.08.2002. He rushed to the place of occurrence and drew rough sketch Ex.P13 and prepared Ex.P14 observation mahazar and seized M.O.1/cotton saree under Ex.P15 Seizure mahazar, in the presence of P.W.5/Palayam and one Kamaraj. Then he sent requisition to the Personal Assistant to the District Collector, Chennai, to conduct inquest.
(v) P.W.7/Nagarajan, Tahsildar, who received requisition from the Personal Assistant to the District Collector, conducted inquest on the body of the deceased and the inquest report was marked as Ex.P9. Then he examined P.W.1 to P.W.4 and A1. Statement of A1, P.W.1 and P.W.3 were marked as Exs.P8, P2 and P3 respectively. After examining the witnesses, he filed a final repot Ex.P10 and the deceased body was sent for post-mortem.
(vi) P.W.6/Dr.Murugan, who conduced autopsy, gave Ex.P7 post-mortem certificate. He opined that the deceased would appear to have died of Asphyxia due to hanging.
(vii) P.W.10 examined the witnesses and recorded their statements. Further, he examined P.W.6/Doctor and P.W.7/Sub-Inspector and recorded their statements. On 11.08.2002, at 6.30 p.m., he arrested A1, A3 and A4 and remanded them to judicial custody. After completing investigation, he filed a charge sheet against the accused for the offences under Sections 498A and 306 r/w 109 IPC.
4.The trial Court after following the procedure framed necessary charges. Since the accused pleaded not guilty, the trial Court examined P.W.1 to P.W.10 and marked Exs.P1 to P16 and M.O.1 and placed the incriminating evidence against the accused and the accused denied the same. On the side of the accused, no witness was examined and no documentary evidence was marked. But at the time of questioning under Section 313 Cr.P.C., A1 filed a written statement, in which, it was stated that they never demanded any money and ill-treated his wife. Much before their marriage, he is having telephone connection and the number is 25280120 and his mother is having BPL colour TV. After the marriage, on 20.03.2002, his mother has purchased one Samsung T.V. which was in his house. He further stated that he possessed TMT Motor Cycle bearing Registration No.2268. Since his wife was pregnant, he took her to Dr.Alagammai Hospital for periodical check up. To substantiate the same, he enclosed five documents. He further stated that he is an innocent and he has not abetted her wife to commit suicide. The trial Court after considering oral and documentary evidence, acquitted A2 to A4 and convicted A1 under Sections 498A, 304B and 306 IPC and sentenced him as stated above. No separate sentence has been imposed for the offences under Sections 498A and 306 IPC, since 306 IPC is an alternative charge (with same set of allegations) and 498A IPC is covered under Section 304B IPC.
5.Challenging the conviction and sentence, Mr.M.L.Ramesh, learned counsel for the appellant/A1, submitted that the evidence of P.W.1 to P.W.3, who are brothers and sister of the deceased and one Jamuna, is contradictory and developed at each stage and they are interested witnesses and hence, their evidence are not reliable. No independent witness was examined. Neighbors and tenants in the deceased house were not examined and father of the deceased was also not examined. The case is based on circumstantial evidence. It is further submitted that the case of the prosecution is that the accused demanded the deceased for Colour T.V., Motor cycle, Telephone, but whereas before their marriage, A1 possessed all those things and there is no necessity for demanding colour T.V. and motor cycle from her. To prove the same, A1 filed related documents in his written statement at the time of questioning under Section 313 Cr.P.C. He would further submit that A1 and deceased Kala lived happily for three to four months. After that, the mother-in-law/A2 shifted her residence in the accused house and Kala questioned him that his brother alone collected rent for the house, since her husband is elder son of the family, he was not given proper respect. So she scolded her husband that he is not a manly man. Since his wife was pregnant, he looked after her well. But those aspects have not been considered by the trial Court. Hence, there is no iota of evidence to show that A1 abetted her for committing suicide and demanded dowry. Moreover, P.W.7/Tahsildar, who conducted inquest, examined A1 and recorded his statement under Ex.P8. In his final report Ex.P10, he stated that as per the evidence of Panchayatars, the deceased and A1 lived happily and death of the deceased is not due to dowry demand. This factum has not been considered by the trial Court. Hence, ingredients of Sections 304B and 306 IPC are not made out. Therefore, he prayed for acquittal of A1/appellant.
6.Resisting the same, Mr.C.Emalias, learned Government Advocate (Crl. Side) submitted that in post-mortem certificate, P.W.6/Doctor opined that there was an abrasion measuring 3 X 2 cm on her right jaw. A1/appellant in Section 313 Cr.P.C. questioning, he did not give any explanation as to how her wife sustained injury on her cheek. In his statement under Ex.P8 before the Tahsildar, A1 stated that on the date of occurrence, he questioned her as to why she thrown here and there the dirty clothes in the middle of the house. At the time, the deceased scolded her and abused him. On hearing the same, her mother-in-law came there and started quarrel, A1 slapped on the cheek of the deceased and left the place. When he returned his home at 11.00 p.m., he saw his wife was hanging. Immediately, he took her to hospital. It is to be noted that deceased Kala was committed suicide in her bed room (i.e.) in her matrimonial home. Therefore, her husband/A1 is a competent person to give explanation as to why her wife committed suicide. But A1 has not given convincing explanation in his statement. So the trial Court rightly considered all the aspects and convicted A1. Hence, he prayed for dismissal of the appeal.
7.Considered the rival submissions made on both sides and the materials available on record.
8.Admittedly, the marriage was performed between the deceased Kala and A1 on 22.02.2002. She committed suicide on 10.08.2002 within six months. At the time, she was five months pregnant. The scan document which was filed at the time of Section 313 Cr.P.C. questioning would reveal that the scan was taken on 08.07.2002 and 18 weeks fetus is in living condition. Kala was died by hanging, which was evidenced by Ex.P7/Post-mortem certificate and P.W.6/Dr.Murugan. In Ex.P7/post-mortem certificate, the injury sustained by the deceased was mentioned as "Abrasion 3 X 2 cm on right jaw". Admittedly, the deceased Kala committed suicide in her matrimonial home. So A1 is a competent person to speak about her death and injury sustained by her. But in Section 313 Cr.P.C. questioning, in question No.18, the accused did not give any explanation as to how her wife sustained injury on her right jaw.
9.In such circumstances, it is appropriate to consider Section 304B IPC, which deals with dowry death, 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. Such cruelty or harassment must be in connection with demand of dowry. Once the above said ingredients are established by the prosecution, the presumption under Section 113B of Indian Evidence Act shall be drawn. But here, the marriage took place on 22.02.2002. she died by committing suicide on 10.08.2002 at mid night within six months from the date of marriage. It would show that Kala died otherwise under normal circumstances within seven years of her marriage.
10. While perusing evidence of P.W.6/Doctor and Ex.P7/post-mortem certificate, it reveals that the deceased sustained abrasion on her right cheek. It shows that the deceased was subjected to cruelty before her death. Furthermore, A2/mother-in-law in Section 313 Cr.P.C. questioning, in question No.22, she stated that whenever her son and daughter-in-law made quarrel with each other, she advised her not to quarrel with him. It shows that there was frequent quarrels between husband and wife. Moreover, A1 in his statement Ex.P8, he stated that on the date of occurrence, he slapped her wife on her cheek. But slapping on cheek will not cause any abrasion, it will cause only contusion. It would clearly prove that before her death, Kala was subjected to cruelty by her husband.
11.On perusal of Ex.P10/Final report given by P.W.7/Tahsildar, he stated that as per the evidence of Panchayatars, A1 and deceased were living happily and there was no dowry demand. It is a well settled principle of law, the report of the Tahsildar is not a substantial piece of evidence. Merely because the Tahsildar opined that the death is not due to dowry demand is no way affect the case of the prosecution. The prosecution ought to have proved the guilt of the accused for the offence under Section 304B IPC. While considering the evidence of A2 under Section 313 Cr.P.C. questioning, it would reveal that there was frequent quarrel between the deceased and A1. In such circumstances, I am of the view, the trial Court has correctly rejected Ex.P8/statement given by A1 before Tahsildar and the final report Ex.P10.
12.Now this Court has to decide whether such cruelty or harassment is in connection with demand of dowry? It is appropriate to consider the evidence of P.W.1 to P.W.3, who are none other than the brothers and sister of the deceased. Since the deceased was pregnant, P.W.1 took her to his house for few days. While Kala was in the house of A1, she told to P.W.1 over phone that A1 did not take her to the hospital, because he was not given motor cycle. In my opinion, there is no reason for discarding the evidence of P.W.1. It is true, A1/appellant herein has filed a document to show that he already possessed motor cycle, so there was no possibility for demanding motor cycle further. While perusing the document, it would reveal that "it was transferred to N.Ramamoorthy, S/o Nagappa Naicker, No.43, Rama naicken street, Royapuram, Madras-13 with effect from 02.05.1988". It shows that it was a old vehicle and hence, there was a possibility for demanding new one. In such circumstances, I am of the view, the trial Court in para-22(2) of its Judgment, rightly held that when A1 has purchased a second hand vehicle during the year 1988 which might have become sufficiently old, it is quite probable that A1 would have demanded motor-cycle.
13.While perusing the evidence of P.W.4/Jamuna, in her evidence she stated that she knows the deceased family for the past 20 years and she used to visit the deceased in her house. At the time, P.W.4 found swelling in the face of deceased Kala and one Jimmiki was found broken. When Jamuna asked her about the same, she told her that she is not given proper food and her husband was demanding T.V. and assaulted her. In Ex.P1 complaint itself, ill-treatment met by the deceased in the hands of A1 was mentioned by P.W.1, which was also corroborated by the evidence of P.W.4. Ex.P12/F.I.R. also reveals the same. P.W.3/Shanthi, sister of deceased, in her evidence she stated that Kala was not given proper food and since she was pregnant, she took her sister in her house in the fourth month. Considering the above said facts, it would prove that A1 demanding motor cycle and T.V. assaulted his wife Kala and that she was subjected to cruelty, before her death.
14.At this juncture, it is appropriate to consider the following decision relied upon by learned counsel for the appellant. He relied upon para-14 in CDJ 2010 MHC 1006 (G.Ravichandran v. The Inspector of Police, J4 Police station, Chennai) and submitted that they have made deliberate improvements in their statements as stated supra in order to make it consistent with their version that the deceased was treated cruelly by the appellant. When a witness holds the position of relationship, it is incumbent on the Court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the value and the entire mosaic of facts appearing from the record.
15.Considering the above decision along with facts of the present case, while scrutinising the evidence of P.W.1 to P.W.4, I am of the view, in the F.I.R. and complaint itself, they narrated the facts about the demand of dowry and cruelty met out by the deceased Kala.
16. He would rely upon the decision in (2011) 2 MLJ (crl) 558 (Srinath Prasad v. State by Inspector of Police, J-6, Thiruvanmiyur Police station, Thiruvanmiyur, Chennai-41) and submitted that there is no evidence on the side of the prosecution to prove the accused is guilty under Section 306 IPC and there is no iota of evidence to show that A1 intentionally aided by any act or illegal omission or had mens rea in order to attract the ingredients of Section 306 IPC to derive the deceased to take the extreme step of putting an end to her life by committing suicide.
17. Further, he would rely upon the decision in (2010) 2 MLJ (crl) 410 SC (Gangula Mohan Reddy v. State of Andhra Pradesh) in para-18, it reads as follows:
| "Held: In the instant case, the deceased was
| undoubtedly hyper sensitive to ordinary petulance,
| discord and differences which happen in our day-to-day
| life. Human sensitivity of each individual differs
| from the other. Different people behave differently in
| the same situation."
In the above decision, it was further held that without positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained.
18.In the case on hand, there is no evidence to show that A1 instigated or aided the deceased to commit suicide. So the prosecution has miserably failed to prove the guilt of A1 for the offence under Section 306 IPC. In such circumstances, the conviction passed by the trial Court in respect of Section 306 IPC is liable to be set aside and hence, it is hereby set aside.
19.Per contra, the prosecution has proved the guilt of the accused for the offence under Sections 498A and 304B IPC, for demanding motor cycle and T.V. and thereby caused cruelty upon the deceased soon before her death, which forced her to commit suicide. Once the ingredients of Sections 304B and 498A IPC are established by the prosecution, the presumption under Section 113B of Indian Evidence Act shall be drawn. Since A1 is a competent person to speak about as to why her wife committed suicide, he ought to have proved his innocence. But he has not given convincing explanation for her suicide and also an injury sustained by her in right jaw. In such circumstances, I am of the considered view, the trial Court rightly held that A1 is guilty for the offence under Sections 304B and 498A IPC.
* Hence, the Judgment of conviction and sentence passed by the trial Court in respect of the offences under sections 304B and 498A IPC does not warrant any interference and it is hereby confirmed.
20.In fine,
(i) Criminal Appeal is partly allowed.
(ii) Consequently, connected Miscellaneous Petition is closed.
(iii) The judgment of conviction passed by the trial Court in respect of Section 306 IPC is set aside.
(iv) The judgment of conviction and sentence passed by the trial Court in respect of Sections 304B and 498A IPC is confirmed.
(v) Bail bond if executed by the appellant/A1 shall stand cancelled.
(vi) The trial Court is directed to secure the custody of A1/appellant to undergo the remaining period of sentence.
16.07.2012
Index:Yes
Internet:Yes
kj
R.MALA,J.
kj
To
1. The Sessions Court
Magalir Needhi Mandram, Chennai.
2.Assistant Commissioner of Police
Harbour Range, Chennai.
3.The Public Prosecutor
High Court, Madras.
4.The Record Keeper
Criminal Section, High Court, Madras.
Pre-delivery judgment made in Criminal Appeal No.508 of 2004
16.07.2012
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