Madras High Court
Karthick vs State Rep By on 2 August, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.(MD)No.139 of 2016
Karthick : Appellant/Accused No.1
Vs.
State rep by
The Deputy Superintendent of Police,
Thirupparankundram Sub-Division,
Madurai District,
Thirunagar Police Station.
(In Crime No.4 of 2008) : Respondent/Complainant
PRAYER: This Criminal Appeal is filed under Section 374 of the Code of
Criminal Procedure, against the conviction and sentence passed by the
learned Sessions Judge, (Mahila Court), Madurai, in S.C.No.161 of 2011
dated 01.04.2016.
For Petitioner : Ms.N.Juliet Latha
Legal Aid Counsel
For Respondent : Mr.M.Muthumanikkam
Government Advocate
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2
JUDGMENT
This criminal appeal has been filed to set aside the conviction and
sentence dated 01.04.2016 passed in S.C.No.161 of 2011, on the file of the
learned Sessions Judge (Mahila Court), Madurai.
2.The appellant is the first accused, his mother and father are
arrayed as Accused Nos.2 and 3 in the above referred case. Before the trial
Court, the appellant and other accused stood charged for the offence under
Sections 498(A) and 304(b) or 302 of I.P.C. The accused denied all the
charges and opted for trial. Therefore, they were put on trial on the charges.
After full-fledged trial, the learned Sessions Judge [Mahila Court], Madurai,
found the appellant/accused guilty of offence under Section 498(A) and
304(b) of I.P.C. Accordingly, the appellant alone convicted and sentenced
to undergo three years rigours imprisonment and to pay a fine of Rs.1,000/-,
in default to undergo six months simple imprisonment under Section 498(A)
off I.P.C. Further, he has been convicted under Section 304(b) of I.P.C.,
and sentenced to undergo ten years rigours imprisonment and to pay a fine
of Rs.5,000/-, in default, to undergo six months simple imprisonment. The
learned Sessions Judge [Mahila Court], Madurai, has acquitted accused
Nos.2 and 3 from all the charges. The sentences are directed to run
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concurrently. Challenging the conviction and sentence, the appellant/first
accused is before this Court, by way of filing the present Criminal Appeal.
3.The relevant facts of the case, which gave rise to filing of this
appeal are necessary to be recapitulated for the disposal of this appeal:-
3.1. The deceased Tamilselvi is the wife of the appellant/first
accused. PW1-Pandiyammal is the mother of the deceased . PW2-Uma is
the sister to the deceased and PW3-Sekar is the husband of PW2. The
marriage between the appellant and the deceased was solemnized on
02.01.2008. After the marriage, the deceased Tamilselvi leads the
matrimonial life in Vilachery along with appellant/accused. During the time
of marriage, the accused was paid with 15 sovereigns of gold and
Rs.30,000/- as stridhana property. After becoming pregnant the deceased
was brought to her parents house, wherein she told to PW1 as her husband
demanded to pay a sum of Rs.50,000/- for purchasing a Bike, for which the
father of the deceased replied that the said amount will be paid after
harvesting the sugarcane. On the same day, in the night hours, the first
accused came to PW1's house and assaulted the deceased saying that instead
of receiving Rs.50,000/-, she had happily stayed in her parents house.
Ultimately, the accused brought the deceased to his house. After three days
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from the said occurrence around 10.00 p.m., PW1 received the Telephonic
Message as her daughter died. Immediately, after receiving the said
Message, PW1 along with her relatives went to the house of the accused,
wherein the dead body of the deceased was found in the pool of blood.
Immediately, she shifted her daughter's dead body to the Government Rajaji
Hospital, Madurai. Thereafter, her husband and PW3 went to the
Thirunagar Police Station and lodged a complaint under Ex.P1 against the
accused.
3.2. PW11-Vimala, the then Sub-Inspector of Police, on
03.01.2008 at about 00.30 hours, while she was in Thirunagar Police
Station, received the complaint from the husband of PW1 and registered a
case in Crime No.04 of 2008 under Section 174 of Cr.P.C. The copy of the
printed FIR was marked as Ex.P4. After registration of the case, she
handed over the case records to the Deputy Superintendent of Police for
investigation and also she handed over the copy of the FIR to the Revenue
Divisional Officer, Madurai, for enquiry.
3.3. PW13-A.Ganesan, the then Deputy Superintendant of Police,
on 03.01.2008, received the copy of the FIR and he took the same for
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investigation. On the same day, at about 8.00 a.m., he visited the scene of
occurrence and in the presence of PW8-Dharmaraj and one Ganesan, he
prepared an Observation Mahazar under Ex.P7. He drawn the Rough
Sketch and the same was marked as Ex.P6. He examined the witnesses and
recorded their statements. In the meantime, PW12-Jeyaraj the then Revenue
Divisional Officer, Madurai, on 02.01.2008 received the copy of the First
Information Report and conducted an enquiry in the presence of
Panchayatars and witnesses. He prepared the inquest report under Ex.P10.
After recording the statements of the witnesses, he came to the conclusion
that the death of the deceased Tamilselvi to be caused due to the demand of
dowry made by the accused. He sent a report to the District Collector in this
regard. A copy of the report given by PW12 was marked as Ex.P5. He has
further sent a requisition to the Doctor attached with the Government Rajaji
Medical College Hospital, Madurai, for conducting autopsy over the dead
body of the deceased.
3.4. Upon receipt of the requisition given by P.W12,
PW9-Dr.Selvaraj and PW10-Dr.Vanitha conducted the postmortem and
found the following injuries:-
''An Incomplete transversely oblique ligature mark 32
cms X 1.5 cms is noted on front sides and uppermost part of
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the neck leaving a gap of 8 cms noted on right side of neck.
The anatomical location of the ligature mark is as follows:-
- 4cms from the left mastoid
- 7 cms from the centre of chin
- 8 cms from the centre of chin
On bloodless dissection of the neck:
The base of the ligature mark is pale, hard, glistening white
and parchement like. The underlying neck structures like
thyroid, cricoid cartilages, and tracheal rings and tracheal
rings and hyoid bone are normal. There is no extravasation of
blood noted in the superficial and deeper planes of neck.''
They collected the visceral particles from the dead body of Tamilselvi and
sent the same for chemical examination. In the examination, the Expert,
who conducted the chemical examination did not deduct any poisonous
substance. Therefore, after receipt of the chemical examiner's report,
PW9-Dr.Selvaraj and Dr.V.N.Alaga Venkatesan, Tutor in Forensic
Medicine, Madurai Medical College, Madurai, gave a final opinion
(Ex.P.15) stating that the deceased would appear to have died of asphyxia
due to hanging.
3.5. In continuation of investigation, PW13 after receipt of the
report from PW12, altered the Section of law as Sections 498(A) and 306
of I.P.C and the same was marked as Ex.P14. After securing the accused,
on 05.06.2008 he examined the Doctors, who conducted the postmortem
and recorded their statements. He collected the certificate issued by the
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Doctor and ultimately, he came to the positive conclusion that the appellant
and two other accused in this case had committed the offence under
Sections 498(A) and 304(b) of I.P.C. He filed a final report in this regard.
4.Based on the material available on record, the trial Court framed
the charges for the offences under Sections 498(A), 304(b) or
302 of I.P.C. All the accused denied the charges and opted for trial.
Therefore, all the accused was put on trial.
5.During the course of trial proceedings, in order to prove their
case, on the side of the prosecution, 13 witnesses were examined as PW1 to
PW13 and 15 documents were exhibited as Ex.P1 to Ex.P.15.
6.Out of the above said witnesses, PW1-Pandiammal is the mother
of the deceased. In her evidence, she has stated about the details of marriage
solemnized between the first accused and the deceased and about the
payment of Stridhana property. She has further stated that after the
marriage, both the first accused and the deceased were residing in Vilachery
in an independent house and when at the time the deceased was five months
pregnant, she was brought to her house for performing conventional
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function. Thereafter, while such a time the deceased is in her house, the
accused came there and after made insult brought the deceased to his house.
Later, within three days, she received an information that her daughter died
and thereafter, PW1 along with the relatives went to the house of the
accused and saw the dead body of her daughter in a pool of blood. In this
regard, a complaint has been lodged by PW3.
6.1. PW2-Uma and PW-3-Sekar, also gave evidence in support of
evidence given by PW1.
6.2. PW4 - Sampath speaks about the occurrence as in the year
2008, one day, at about 08.30 p.m. after hearing the news, he rushed to the
appellant's house, wherein he found that the deceased Tamilselvi was
hanging. According to him, he removed the dead body from the rope.
PW5-Gurusamy has also visited the appellant's house after hearing the death
Message of Tamilselvi.
6.3. PW6-Kumar, is the resident of Vilachery. He has stated
before the trial Court as during the relevant point of time, he heard the news
that after death of Tamilselvi, the appellant consumed poison and admitted
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in the hospital and after hearing the same, he visited hospital, in which the
accused was taking treatment.
6.4. PW7-Mani is the neighbour of the accused. According to
him, he has also heard the news, in otherwise before the trial Court he does
not say anything about the occurrence. Hence, he has treated as hostile
witness.
6.5. PW8-Dharmaraj is the witness to preparation of Observation
Mahazar and Rough Sketch, he has not supported the case of the
prosecution and therefore, he has also treated as hostile witness.
6.6. PW9 and PW10 are the Doctors attached with Government
Rajaji Hospital, Madurai. They have stated about the details of the
postmortem conducted on the dead body of the deceased Tamilselvi. They
issued the postmortem certificate and final opinion as the deceased would
appear to have died of asphyxia due to hanging.
6.7. PW11-Vimal, the then Sub Inspector of Police, Thirunagar
Police Station, has stated about the receipt of the complaint and the
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registration of the case. PW12-Jeyaraj, the then Revenue Divisional Officer
has stated about the receipt of copy of the FIR and preparation of inquest
report. According to him, the deceased committed suicide due to the reason
that the appellant demanded her to bring more dowry.
6.8. PW13-A.Ganesan, who is the Investigation Officer in this
case, speaks about the details of investigation, arrest of accused, recording
the statement from the witnesses and filing of final report.
7.When the above incriminating materials were put to the accused
under Section 313 Cr.P.C., all the accused denied the same as false.
However, they did not chose to examine any witness or mark any document
on their side.
8.The learned Sessions Judge [Mahila Court], Madurai, after
perusing all the above materials and on considering the arguments advanced
by the learned counsel on either side, convicted and sentenced the appellant
as stated supra. Aggrieved by the said conviction and sentence, the
appellant is before this Court with this appeal.
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9. I have heard Ms.N.Juliet Latha, learned counsel appearing for
the appellant/first accused and Mr.M.Muthumanikkam, learned Government
Advocate appearing for the State and also perused the records carefully.
10.The learned counsel appearing for the appellant would contend
that since the appellant/first accused charged for the offences under Sections
498(A) and 304(b) of I.P.C, the evidence given by the prosecution witness
must relates to the demand of dowry made by the accused. It is the duty for
the prosecution to prove that before the occurrence, the deceased was
subjected to cruelty or harassment by her husband or any relatives of her
husband in connection with demand of dowry. He would further submit
that here it is the case, the evidence given by PW1 reveals the fact that after
marriage, the deceased and the accused leads a happy matrimonial life.
Further, the witnesses examined on the side of the prosecution did not say
about the demand of dowry made by the accused. According to him, the
evidence given by the prosecution witness are having lot of contradictions
and affects the root of prosecution case. Hence, she prayed to allow this
appeal.
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11.Per contra, the learned Government Advocate (Crl.side)
appearing for the State would contend that though there were some minor
contradictions found in the evidence given by the prosecution witness, the
same are all not in the form of affecting the entire case of prosecution.
According to him, interference of this Court in the finding arrived at by the
trial Court is not necessary.
12.I have considered the rival submissions made by the learned
counsel appearing on either side.
13.First of all, since the appellant/first accused is convicted for
the offences under Sections 498(A) and 304(b) of I.P.C, it would necessary
for the prosecution to prove the following ingredients for convicting the
accused under Section 498(A) of I.P.C :-
a) there is a married lady;
(b) she has died an unnatural death including death by burn or by
bodily injury or by poisoning etc;
(c) that such death has occurred within seven years of the
marriage;
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(d) it must be found that soon before her death she was subjected
to cruelty or harassment for, or in connection with any demand for dowry by
her husband or any of his relatives.
14.Further for convicting the accused under Section 304(b) of
I.P.C., the prosecution must shown following ingredients:-
(a) that the victim was a married lady (she may also be a widow),
(b) that she has been subjected to cruelty by her husband or the
relative of her husband,
(c) that such cruelty consisted of either (1) harassment of the
woman with a view to coerce meeting a demand for dowry, or (2) a wilful
conduct by the husband or the relative of her husband of such a nature as is
likely to lead the lady to commit suicide or to cause grave injury to her life,
limb or health;
(d) that such injury aforesaid may be physical or mental when the
husband or the relative of a husband of a woman subjects such woman to
cruelty.
15.When the position of law is thus, in the present case, there is
no dispute that the appellant and the deceased are husband and wife and it
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is also an admitted fact that the death of the deceased was occurred within
seven years from the date of marriage. The evidence given by the Doctor,
who conducted the postmortem, reveals the fact that the deceased
Tamilselvi committed suicide and due to the same, the death would occur.
Therefore, the only aspect which is necessary to find out in this appeal is
that whether the said Tamilselvi has committed suicide on account of
demanding dowry by the accused.
16.In this regard, PW1 to PW3 have narrated the incident as
during the time of occurrence, while the deceased was in advanced stage of
pregnancy, she brought to the house of PW1, wherein, conventional
ceremony was performed to the deceased. After three days from the date of
the said ceremony, the accused came there and brought the deceased to his
house. In otherwise, PW1 to PW3 did not say anything about the demand of
dowry made by the accused. In respect of demand of dowry, PW1 has
specifically stated in her cross-examination as after marriage, both the
deceased and the first accused leads a happy matrimonial life in a separate
house. She has further stated that immediately within one month from the
date of marriage, the deceased became pregnant. Further, in respect of
pregnancy, the first accused alone given treatment to the deceased.
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PW1 has further stated that she knew the details of pregnancy, after lapse of
five months from the date on which the deceased has become pregnant.
Therefore, the said evidence reveals the fact that after marriage, the accused
herein did not demand any dowry from the deceased.
17. Further, PW1 being the mother of the deceased, who is a
capable lady to say the matrimonial life of the deceased. In this regard, it is
true that PW2 and PW3, who are relatives of the deceased, gave evidence as
after performing conventional ceremony, the accused came to the house of
PW1 and insulted the deceased as she was not fit to bring Rs.50,000/- from
her parents house. Therefore, in respect of the demand of dowry alleged to
be made by the accused, two sets of evidence were found available in the
evidence given by the prosecution. The availability of two sets of evidence
in respect to the single occurrence are always fatal to the case of
prosecution.
18.Yet another aspect it is necessary to decide in this appeal is
that PW1 gave evidence as when at the time she visited the house of the
accused, the dead body of the deceased is found available with pool of
blood. In this regard, PW11 the then Sub Inspector of Police, who visited
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the occurrence place, after receipt of the complaint, has stated in his
evidence as in occurrence place, no such blood is found available.
Therefore, in respect of the presence of blood in the occurrence place, the
evidence given by the prosecution witness is full of contradictions.
19.Yet another lacuna is found available in the prosecution case is
that while at the time of giving evidence as PW1 the mother of the deceased
has stated before the trial Court as during the time she visited the house of
the accused, a number of police persons were present there, but in respect to
the same, in her cross examination she has stated that only after seeing the
dead body of her daughter, the complaint has been lodged before PW11 by
her husband. Therefore, in respect of lodging of complaint also, the
evidence given by the prosecution witness does not inspire the confidence
of this Court.
20.More than that, it is the evidence given by PW4 that after the
occurrence, the first accused herein consumed poison and attempted to
commit suicide, further, it was stated by him that the first accused was
taking treatment in the Government Hospital for consumption of poison by
the accused. In this regard, none of the witnesses examined on the side of
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the prosecution has not stated about the details in respect of consumption of
poison by the appellant. Further, during the time of investigation, the rope
which was used for committing suicide was not recovered by the
prosecuting agency and the same was admitted by PW11. In this regard, no
explanation is offered for non-recovery of rope, which is important material
object to prove the charges framed against the accused.
21.In the light of the above discussions, I am of the firm opinion
that the contradictions elicited from the prosecution witnesses would clearly
show that the prosecution has not proved the case beyond reasonable doubt.
Hence, the Criminal Appeal is allowed and the conviction and sentence
imposed on the appellant/first accused, by the learned Sessions Judge
[Mahila Court], Madurai, in S.C.No.161 of 2011, dated 01.04.2016, is set
aside and the appellant/first accused is acquitted of all the charges. The fine
amount, if any, paid by him, shall be refunded to him. The appellant/first
accused is directed to be released forthwith, unless his presence is required
in connection with any other case.
02.08.2021
Index : Yes/No
Internet : Yes/No
cp
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To:-
1.The Sessions Judge,
Mahila Court,
Madurai.
2.The Deputy Superintendent of Police,
Thirupparankundram Sub-Division,
Madurai District,
Thirunagar Police Station.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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R.PONGIAPPAN, J.
cp
Crl.A.(MD)No.139 of 2016
02.08.2021
https://www.mhc.tn.gov.in/judis/
