Thursday, August 1, 2013

Husband acquitted EVEN when wife dead. Abducted marrg, so when wife dies, All in FALSE dowry case.


BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 18/01/2013

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRIMINAL APPEAL (MD).No.84 of 2009

1.V.Periyasamy
2.C.Veeran
3.Natchammal ... Appellants

Vs.

State, rep by Deputy Superintendent of Police,
Melur, Crime No.313 of 2006,
Kottampatti Police Station. ... Respondent

PRAYER

Appeal is filed under Section 374(2) of the Code of Criminal Procedure to call for the records in S.C.No.267 of 2007 on the file of the learned Sessions Judge/Mahalir Neethi Mandram, Madurai, dated 31.03.2009 and set aside the same.
!For Appellant ... Mr.V.Kathirvelu
   Senior Counsel
   For Mr.K.Prabhu
^For Respondent ... Mr.A.Ramar
   Additional Public Prosecutor
:JUDGMENT
*************

[Judgment of the Court was delivered by S.NAGAMUTHU, J.]

The appellants are the accused in S.C.No.267 of 2007, on the file of the
learned Sessions Judge/Mahalir Neethi Mandram, Madurai. They stood charged for
offences under Sections 498(A), 304(B) of the Indian Penal Code and Section 4 of
the Dowry Prohibition Act, 1961. By Judgment dated 31.03.2009, the Trial Court
acquitted the fourth accused, but convicted these accused under all the three
charges and sentenced them, as detailed below.

Accused Sentenced   Quantum of   Quantum of Sentence in
under   substantive fine   default of
Section(s) Sentence   payment of fine
1 (i).498(A), Three years RI, Rs.1,000/- Six months RI
(ii 304(B), Imprisonment for life ----------- ----------
(iii).Section 4
of the Dowry Two years RI Rs.1,000/- Six months RI
Prohibition Act,
1961.

2 (i).498(A) One year RI Rs.500/- Three months RI
(ii).304(B) Seven years RI ------------ ------------

(iii).Section 4 One year RI Rs.500/- Three months RI
of the Dowry
Prohibition Act,
1961.

3 (i).498(A) One year RI Rs.500/- Three months RI
(ii).304(B) Seven years RI ------------ ------------

(iii).Section 4 One year RI Rs.500/- Three months RI
of the Dowry
Prohibition Act,
1961.


The conviction and sentence imposed on the appellants 1 to 3 have been ordered to run concurrently. Challenging the said conviction and sentence, the appellants have come up with this Criminal Appeal.

2. The case of the prosecution, in brief, is as follows:-

The deceased, in this case, was one Mrs.Rajathi. The first accused is her husband. The accused 2 and 3 are the father-in-law and mother-in-law respectively of the deceased. The fourth accused is the brother of the first accused. PW-2 is the senior paternal uncle of the deceased. The first accused had fallen in love with the deceased. But, the first accused had already two wives. When the first accused wanted to marry the deceased, PW-2 and the other family members opposed the same. However, the first accused abducted the deceased and married her, four years prior to the occurrence. They have got a female child out of the said relationship. The deceased was residing with these three accused as a joint family. The marital life was peaceful for about one and half years.

2.1. Thereafter, the first accused left the deceased in the company of the accused Nos.2 to 4 and he left for Chennai, on account of his job. While she was so residing with the accused Nos.2 to 4, it is alleged that they demanded dowry and forced her to leave the matrimonial home. In this regard, the deceased made a complaint to the police.

2.2. PW-10, the then Inspector of Police, attached to the All Women Police Station, Melur, Madurai District, on receipt of the said complaint from the deceased in Petition No.49 of 2006, called both the parties for a talk. In the said complaint, the deceased had stated that in the absence of the first accused, the other accused did not allow her to reside in the matrimonial home. It needs to be noted, at this juncture, that there is no mention in the complaint about the dowry demand made by the accused and on account of the same, the accused forced her out of the matrimonial home. The first accused also appeared before the police. The matter was compromised, in which the first accused promised to pay a sum of Rs.500/- towards her maintenance and her child. The accused 2 and 3 also promised that they would not disturb the deceased and she could live happily in the matrimonial home.

2.3. Thereafter, again, on one occasion, according to the prosecution, the accused Nos.2 and 3 demanded dowry and sent her out of the matrimonial home. This time also, there was a panchayat near Vanchikovil. In the said panchayat, it was decided that the deceased could reside in the same matrimonial home and the first accused shall continue to pay a sum of Rs.500/- per month towards her maintenance. Even prior to Diwali, in the year 2006, the deceased went to her parental home and she told that she was not provided food and other amenities by the accused 2 to 4 and she was not also paid a sum of Rs.500/- towards her maintenance, as promised. Then, the deceased left for the matrimonial home. Thereafter, the deceased committed suicide by hanging on 21.10.2006 and the child was also found hanging by her side in a tree in the field of one Mr.Thethampatti Chelliah.

2.4. PW-1 was the then Village Administrative Officer of Vanchi Nagar Village. On 21.10.2006, at 04.00 PM, his assistant informed him that two dead bodies were hanging in the bamboo tree. Immediately, he proceeded to the place of occurrence and found the said information to be true. Then, he immediately, proceeded to the Police Station and made a complaint under EX-P1. The Inspector of Police, Kottampatti Police Station, registered a case in Crime No.313 of 2006, under Section 174 of the Code of Criminal Procedure.

2.5. PW-14, the then Deputy Superintendent of Police, Melur, took up the case for investigation. He proceeded to the place of occurrence and prepared an Observation Mahazer [EX-P3] and a Rough Sketch [EX-P17] in the presence of the witnesses. Then, he arranged for photographs being taken of the dead bodies. He conducted inquest on the bodies of both the deceased and forwarded the same for postmortem.

2.6. PW-12, Dr.P.Venkatachalam, along with yet another doctor, by name Dr.Radha, conducted autopsy on the body of the deceased - Rajathi, on 22.10.2006, at 01.20 PM. They found the following injuries:-"1.Vertical ligature mark seen over the neck encircling whole neck except over the nape of the neck. Eyes are closed. Tongue within the oral cavity. Frothy discharge from the nostrils."

EX-P8 is the Postmortem Certificate. They opined that the deceased would appear to have died of ante-mortem hanging about 24 to 36 hours prior to the autopsy.

2.7. On the same day, they conducted autopsy on the body of the deceased -Rajalakshmi, aged three years and found the following injuries:-

"1. Vertical ligature mark seen over the neck encircling whole neck except over nape of the neck.

2. Abrasion 3 X 1 cm over left ankle."
EX-P10 is the Postmortem Certificate. EX-P11 is the final opinion. They opined that the deceased would appear to have died of ante-mortem hanging about 24 to 36 hours prior to the autopsy.

2.8. PW-13 examined few more witnesses and submitted final report. Based on the same, PW-14 altered the case into one under Sections 498(A), 302(B) of the Indian Penal Code and Section 4 of the  Dowry Prohibition Act, 1961. On completing the investigation, he laid charge sheet against the accused.

3. Based on the above materials, the Trial Court framed charges under Sections 498(A), 304(B) of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961. The accused pleaded innocence. Therefore, they were put on trial. In order to prove the case of the prosecution, on the side of the prosecution, as many as fourteen witnesses were examined and nineteen documents were exhibited, besides five Material Objects. Out of the said witnesses, PW-2 is the senior paternal uncle of the deceased, who has stated that the accused 2 to 4, on two occasions, demanded dowry and forced the deceased out of the matrimonial home. PW-3 is the cousin of the deceased. He has also stated so and has corroborated the evidence of PW-2. PW-4 is the wife of PW-2. She has stated, in a general terms, about the dowry demand made by the accused 2 to 4. PW-5 is the brother of PW-2. He has also stated that the accused demanded dowry and harassed the deceased on two occasions prior to her death. PW-6 is the panchayatar, who has stated that he and others made a compromise between the accused and the deceased and in the compromise, it was decided that the first accused could pay a sum of Rs.300/- to Rs.400/- towards her maintenance and her child. PW-7 has turned hostile and she has not supported the case of the prosecution in any manner. PW-8 is the one, who noticed both the deceased hanging in the tree. He only informed PW-1, the Village Administrative Officer about the occurrence. PW-9 is the one, in whose presence, the Observation Mahazer and the Rough Sketch were drawn. PW-10, the Inspector of Police, All Women Police Station, Melur, is a vital witness. She has spoken to about the compromise effected between the parties and the statements made by them also. The others are the official witnesses.

4. When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, they denied the same as false. However, they did not choose to examine any witness on their side nor to exhibit any document in their defence. Having considered the above materials, the Trial Court found them guilty under all the charges, and accordingly, punished them. That is how, the appellants are now before this Court with this Criminal Appeal.

5. We have heard the learned Senior Counsel appearing for the appellants and the learned Additional Public Prosecutor for the State and also perused the records carefully.

6. It is submitted by the learned Senior Counsel appearing for the appellants that though the family members of the deceased, such as, PW-2 to PW-5 have stated that there was dowry demand and the consequential harassment at the hands of the accused, the same cannot be believed, for the simple reason that in the complaint made by the deceased to the Inspector of Police, All Women Police Station, Melur, [PW-10], the deceased did not even whisper anything about such alleged dowry demand and the consequential harassment made by the accused. The learned Senior Counsel would also point out that during talks in the Police Station, according to the evidence of PW-10, the deceased alleged that there were frequent quarrels between the accused and the deceased due to misunderstanding. The matter was compromised, in which the accused 2 to 4 told that they would not disturb the deceased in any manner and the first accused promised to pay a sum of Rs.500/- towards her maintenance and her child. The learned Senior Counsel would take us through the statement made by the deceased under EX-P5 to substantiate his contention. If this part of evidence is accepted, then, the learned counsel would point out that absolutely, there is no evidence to say that there was either dowry demand or consequential harassment, much less such consequential harassment was soon before her death.

7. But, the learned Additional Public Prosecutor would submit that the family members of the deceased have categorically stated about the dowry demand made by the accused 2 to 4 and the consequential harassment, and therefore, according to him, the Judgment of the Trial Court does not require any interference at the hands of this Court.

8. We have considered the above submissions. Of course, it is true that the family members of the deceased have stated, on three occasions, that the accused 2 to 4 demanded dowry and forced the deceased out of the matrimonial home. This evidence is very general and the evidence, on this aspect, is very vague in nature. They have not stated that as to when, where and under what circumstances, such demand was made, that too, by which accused and what was the demand.

9. Per contra, as rightly pointed out by the learned Senior Counsel for the appellants, according to the evidence of PW-10, the deceased made a complaint on 22.03.2006 alleging that her husband, the first accused, had left for Chennai, on account of his job, leaving her in the company of the accused 2 to 4. But, in the absence of the first accused, the accused 2 to 4 developed quarrel with her and forced her out of the matrimonial home. On these allegations, she wanted action to be taken against these accused. The matter was compromised between the parties in the Police Station, in which the deceased gave a statement under EX-P5. In the said statement, she did not whisper anything about either the dowry demand made by the accused or the consequential harassment. In EX-P5, she has stated that in the absence of her husband, the accused 2 to 4 did not take care of the deceased and did not provide food and basic amenities. Except this allegation, she had not stated anything against the accused. In the said statement, she has further stated that the first accused, by way of compromise, had agreed to pay a sum of Rs.500/- per month towards her maintenance and her child, out of his monthly salary of Rs.1,000/- Therefore, she wanted no further action against the accused. In the said compromise, the first accused gave a statement under EX-P6, where also, the same is reiterated. EX-P7 is the closure report made by PW-10, where also PW-10 has also reiterated the same.

10. From the above documents, it is crystal clear that there is no whisper about any dowry demand or the consequential harassment made by any of the accused. Had it been true that the deceased was subjected to cruelty and dowry demand in terms of Section 498(A) of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961, certainly, the deceased would have made a mention about the same either in the complaint or in the statement made during talks in the Police Station. The very fact that she did not say anything about the cruelty or dowry demand, would go to clearly establish that what is now stated by the family members of the deceased is only an afterthought and the same cannot be believed.

11. The learned Senior Counsel would submit that since the accused had abducted the deceased and married her, as his third wife, the family members of the deceased have falsely deposed against the accused. We find some force in the said argument advanced by the learned Senior Counsel. As rightly pointed out by the learned Senior Counsel, in this case, absolutely, we find that there is no evidence against the accused to say that there was either dowry demand or the consequential harassment, much less such consequential harassment was soon before the death of the deceased. Thus, there is no evidence available on record against any of the accused to sustain the conviction.

12. In view of the above discussion, the conviction and sentence dated 31.03.2009 made in S.C.No.267 of 2007, imposed by the learned Sessions Judge/Mahalir Neethi Mandram, Madurai, is set aside and the Criminal Appeal is allowed. The fine amount, if any, paid by them shall be refunded. The bail bonds executed by them shall stand discharged.

NB

To

1.The Sessions Judge/Mahalir Neethi Mandram,
   Madurai.

2.The Public Prosecutor,
   Madurai Bench of Madras High Court,
   Madurai.

3.The Deputy Superintendent of Police,
   Melur, Kottampatti Police Station,
   Madurai.




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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist