A.Raju vs The State Rep. By
2021 Latest Caselaw 25235 Mad

                                                                                    Crl.R.C.No.902 of 2014

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 22.12.2021

                                                          CORAM :

                       THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
                                         Crl.R.C.No.902 of 2014 and M.P.No.1 of 2014
                     1. A.Raju
                     2. Malliga
                     3. Radha
                     4. Mahendran                                                 ...   Petitioners
                                                                Versus

                     The State rep. by
                     The Inspector of Police,
                     Sirkazhi Police Station                                      ... Respondent

                     (Crime No.647 of 2012)

                                  Criminal Revision Case filed under Section 397 (1) r/w. 401 of the
                     Criminal Procedure Code against the judgment in Crl.A. No.1/2013 dated
                     03.06.2014 on the file of the learned Sessions Judge, Mahila Fast Track
                     Court, Nagapattinam, confirming the judgment passed in S.C.No.141/2011
                     dated 03.06.2014 by the learned Assistant Sessions Judge (Chief Judicial
                     Magistrate), Nagapattinam.


                                        For Petitioners   : Mr.Swamy Subramanian

                                        For Respondent    : Mr.L.Baskaran,
                                                                 Government Advocate (Crl.side)



https://www.mhc.tn.gov.in/judis

                     1/20
                                                                                     Crl.R.C.No.902 of 2014


                                                             ORDER

The petitioners/accused 1 to 4 have filed this Criminal Revision Case

in Crl.R.C.No.902/2014 aggrieved by the judgment of the learned Assistant

Sessions Judge, Nagapattianm, in S.C.No.141/2011 dated 03.01.2013

whereby they were convicted for the offences under Sections 498-A and 304

(B) of IPC and imposed a sentence of 1 year rigorous imprisonment and to

pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for a

period of three months for the offence under Section 498-A IPC and 7 years

rigorous imprisonment for the offence under Section 304(B) IPC and the

judgment of the learned Sessions Judge, Mahila Fast Track Court,

Nagapattinam, dated 03.06.2014 in Crl.A.No.1/2013 whereby the

conviction and sentence imposed by the trial court was confirmed.

2. The case of the prosecution is as follows:

(a) On 11.08.2007, P.W.1 Rajendran went to Seerkazhi Police

Station and lodged a complaint stating that his sister, namely, Viji was

married to the 1st accused A.Raju and the marriage took place on

27.06.2007 and her husband and the in-laws have been harassing her to get

a bike for the 1st accused. Under these circumstances, on 11.08.2007, he

received a phone call from her father-in-law that she was not well and https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

therefore, taken for treatment to Rajarajan Hospital and when he went there,

his sister was not there and therefore, when he went to the sister's house, he

found that his sister was lying dead on the cot with ligature marks around

her neck and when he started crying, her in-laws who were present at the

house fled away and therefore, he gave a complaint. P.W.13 Mr.Rajendran,

Sub-Inspector of Police, who was on duty, registered a case in

Cr.No.647/2007 under Section 174 of Cr.P.C. and then, after the receipt of

the Revenue Divisional Officer Enquiry Report on 05.02.2008, an Alteration

Report was made by P.W.14 Mr.Murugavel, the then Inspector of Police, by

altering it as one under Section 306 of IPC. On 01.05.2008, he arrested the

accused 1 and 2 and submitted the file for further investigation to the Deputy

Superintendent of Police, Seerkazhi Sub-division. Thereafter, P.W.17

Mr.Malaisamy, the Deputy Superintendent of Police took up the case for

investigation, altering the case by Alteration Report dated 03.04.2008

received by the court on 26.04.2008 as to one under Sections 498-A, 304(B)

of IPC and Section 4 of the Dowry Prohibition Act and thereafter,

proceeded to complete the investigation and laid a final report on

28.10.2008 proposing all the four accused in this case guilty of the offences

under Sections 498-A, 304(B) of IPC and Section 4 of the Dowry

Prohibition Act.

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Crl.R.C.No.902 of 2014

(b) The case was taken on file in PRC.No.34/2009 by the learned

Judicial Magistrate, Seerkazhi and after furnishing copies, committed the

case as per Section 209 of Cr.P.C. to the learned Sessions Judge,

Nagapattinam who thereupon made over the case to the learned Assistant

Sessions Judge, Nagapattinam and the case was taken on file as

S.C.No.141/2011. Thereafter, the trial court framed two charges against the

accused under Sections 498-A and 304 (B) of IPC on 30.01.2012. Upon

being questioned, the accused denied the Charges and stood for trial.

(c) Subsequently, the prosecution examined one Rajendran, brother

of the deceased as P.W.1 who spoke about the fact of giving his sister in

marriage, giving of seedhana and that his sister called him to inform that she

was harassed and beaten up demanding motor bike and that on 11.08.2007

he was informed that his sister was unwell and admitted in Rajarajan

Hospital and when he went there, he found that his sister was not there and

upon coming home, he saw the dead body of his sister. One

Mrs.Panchavarnam, sister of the deceased was examined as P.W.2 who also

deposed that the in-laws of her sister had asked her to give all her jewels to

show them to the goldsmith who was residing opposite to their house to

check whether they are all original gold or imitations. Since her sister https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

revolted for that, she was beaten up by them and they have also harassed her

for not bringing a motor bike to the 1st accused. One Mrs.Kasthuri, mother

of the deceased was also examined as P.W.3, who also spoke about the

factum of giving her daughter in marriage and that they were living happily,

but thereafter demanding bike her daughter was harassed and that her

daughter committed suicide. One Sekar, who was the owner of the Utensils

Shop was examined as P.W.4. He deposed that in connection with the

marriage, utensils were purchased from his shop. The prosecution

thereafter examined one Jagannathan as P.W.5 who was also residing in the

village of the deceased victim and who accompanied P.W.1 and others to

the house of the accused and saw the victim dead. One Chellaiyan was

examined as P.W.6 who turned hostile and was cross-examined by the

prosecution. Similarly, one Kandasamy, who was examined as P.W.7, one

Sammandam, who was examined as P.W.8, one Markandan, who was

examined as P.W.9 and one Mathivanan who was examined as P.W.10 had

all turned hostile. Similarly, one Arulprasath who was examined as P.W.11

also turned hostile. These persons were examined for the purposes as

hearsay witnesses about the incident or for signing in the Observation

Mahazar and Confession statement.

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Crl.R.C.No.902 of 2014

(d) The prosecution, thereafter examined the police personnel

Nagarajan as P.W.12 who brought the body of the deceased to Seerkazhi

Government Hospital for postmortem and handed over the body to the

relatives. The Sub-Inspector of Police who registered the F.I.R., namely,

N.Rajendran was examined as P.W.13. The Inspector of Police one

K.Murugavel, who initially took up the investigation and altered the case as

one under Section 306 of IPC and arrested the accused 1 and 2 on

05.02.2008 was examined as P.W.14 and he, thereafter handed over the

investigation to the Deputy Superintendent of Police. The Postmortem

Doctor who conducted the postmortem on the body of the victim was

examined as P.W.15 and issued the Postmortem Certificate Ex.P.3. The

Postmortem Certificate is extracted hereunder:

''Appearances found at the postmortem: A well nourished female body lies on back, eyes closed. Bleeding from mouth and left nose left ear seen. A rope mark from left ear to right ear over front neck seen. Tongue protruding out.

External Injuries:

1. Abrasion over both breast 5 x 3 c.m. and ant abdominal wall.

2. Abrasion left thigh measuring 18 x 2 c.m.

3. Abrasion left knee and left leg.

4. Abrasion over left hand and left elbow.

5. Contusion and impressions of rope over neck.

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Crl.R.C.No.902 of 2014

Internal Exam : Thorax ribcage intact.

Lungs and heart – pale Abdomen : Stomach contains 50 ml. of brownish liquid.

Liver, Kidney, Spleen congested intestines-pale and distended Neck : Hyoid bone intact; Thyroid cartilage – intact Skull : No fracture. Brain matter – intact.

PM concluded at 4.30 p.m. on 12.08.2007.

Viscera sent for chemical analysis.

Hyoid and thyroid cartilage sent for pathological exam.

Chemical Analysis : No poison detected.

Final Opinion : The deceased would appear to have died of asphyxia probably due to hanging 36-48 hrs. prior to autopsy.'' The Revenue Divisional Officer who conducted the enquiry submitted

his report was examined as P.W.16. Mr.Malaisamy, the Deputy

Superintendent of Police, who was the Investigating Officer conducted the

investigation and filed a final report was examined as P.W.17. Thereafter,

once again, the prosecution sought to examine one Vasudevan, Palani and

Suresh as P.Ws.18 to 20 as hearsay witnesses about the incident who had

all turned hostile.

3. The prosecution marked the complaint lodged by the P.W.1 as

Ex.P.1, the First Information Report as Ex.P.2, the Postmortem Report as

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Crl.R.C.No.902 of 2014

Ex.P.3, the Revenue Divisional Officer's Report as Ex.P.4, the Observation

Mahazar as Ex.P.5, the Rough Sketch as Ex.P.6, the Alteration Report dated

03.04.2008 altering the case as one under Sections 498-A, 304(B) of IPC

and Section 4 of the Dowry Prohibition Act as Ex.P.7 and the signature of

the P.W.20 in the confession statement given by the 1st accused as Ex.P.8.

4. Upon being questioned about the material evidences on record and

the incriminating circumstances under Section 313 of the Cr.P.C., all the

accused denied the same as false. Thereafter, there was no evidence let in

on behalf of the defence.

5. Under these circumstances, the Trial Court, proceeded to hear the

arguments of the learned Assistant Public Prosecutor on behalf of the

prosecution and the learned counsel for the accused and by the judgment

dated 03.01.2013 held that, from the cross-examination of P.W.16 and the

evidence of P.Ws.1 to 3, the deceased Viji is proved to be the wife of the 1st

accused. It rejected the contention of the learned Counsel for the accused

that since the prosecution has not proved the legal divorce in respect of the

first marriage of the deceased, the 2nd marriage should not be treated as a https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

valid marriage at all. The trial court, thereafter, proceeded to appraise the

evidences of P.Ws.1, 2 and 3 and the medical evidence of the postmortem

Doctor and concluded that the deceased would appear to have died of

asphyxia due to hanging and therefore, it is an unnatural death and further

since the death is within 7 years from the date of the marriage and from the

evidence of P.Ws.1, 2 and 3, it is clear that there was dowry demand and

harassment of the deceased victim demanding a bike, came to the conclusion

that all the four accused had committed the offences under Sections 498-A,

and 304(B) of IPC and sentenced them accordingly as aforesaid.

6. Aggrieved by the same, all the four accused preferred a Criminal

Appeal in C.A.No.1/2013 on the file of the learned Sessions Judge, Mahila

Fast Track Court, Nagapattinam and the learned Appellate Court

independently appraised the evidence on record and found that the evidence

of P.W.1 and P.W.2 would categorically prove that the victim was harassed

for dowry and taking into account the conduct of the accused and the

corroborative evidence of P.W.4 and P.W.5 about the demand of the bike,

rejected the contentions of the learned Counsel for the accused and found

that the findings of the trial court is in order and therefore, dismissed the

appeal confirming the conviction and sentence imposed on the accused by https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

the learned trial court. Aggrieved by the same, the present Criminal

Revision Case is laid before this Court.

7. Heard Mr.Swamy Subramanian, the learned Counsel appearing for

the petitioners.

8. The learned Counsel for the petitioners would contend that in this

case, the Trial Court as well as the Appellate Court did not appreciate the

evidence in their proper perspective. First, the very demand of the dowry

and the harassment of the victim are in doubt because in respect of the first

incident wherein the deceased victim is said to have told her family

members about the physical attack on her cheek. P.W.1 states that the

deceased victim had told him that all the four accused attacked her

demanding bike whereas P.W.2 would depose before the court that the

deceased victim had told her that when she objected to her mother-in-law

and her husband asking her jewels and giving it to the goldsmith residing in

the opposite house to check whether the ornaments are gold or imitation

jewelry, they attacked her enraged by her challenge and opposition.

According to the learned Counsel for the petitioners, this is a material

contradiction between the P.W.1 and P.W.2. Therefore, there is an element https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

of doubt as to whether there was any demand of dowry at all. He would

submit that the gold ornaments being given as seedhana pursuant to the

marriage cannot be taken as a dowry demand.

9. The second contention of the learned Counsel for the petitioners is

that so far as the accused 3 and 4 are concerned, it can be seen from the

RDO report itself that they were living separately. Even the Investigating

Officer has admitted in his cross-examination that he has come to know that

they were living separately. The incriminating evidence on P.Ws.1, 2 and 3

etc. are giving a contrary version as if they were all living together in the

same house with the deceased and therefore, they also subjected the

deceased to torture. Therefore, when they were not even living together and

coupled with the fact that a huge time was taken to alter the Section 174 of

Cr.P.C. as one under Section 306 of IPC and thereafter, one under Sections

498-A, 304(B) of IPC and Section 4 of the Dowry Prohibition Act, it can be

seen that all the family members were roped in, to the whims and fancies of

the relatives of the deceased-victim and it is highly unbelievable that the

sister of the 1st accused and her husband would give a blow on the cheek of

the deceased for the demand of the bike. Therefore, he would submit that

when a specific plea has been taken, as far as the accused 3 and 4 are https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

concerned, the trial court simply brushed aside and the First Appellate Court

also did not consider the evidence on record at all. Hence, this Court should

interfere while exercising the revisional jurisdiction as the trial court and the

appellate court did not even consider the plea taken.

10. It is his further submission that in this case, the RDO report was

received on 15.12.2007 itself and even thereafter, the investigation was

carried on and only finding that there was no any dowry harassment,

initially, the first alteration report was made as one under Section 306 of

IPC. Thereafter, without any additional materials whatsoever, the second

alteration was made and this would itself show that the entire investigation

is vitiated and there is an element of doubt in the very case of the

prosecution itself. Finally, he would submit that the independent witnesses

including the Mahazar Witnesses have turned hostile in this case which

would demonstrate the falsity of the case as except the family members of

the victim who are interested witnesses, nobody has spoken anything about

the conduct of the accused.

11. Opposing the above submissions, Mr.L.Baskaran, learned

Government Advocate (Crl. Side) would submit that as far as the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

investigation is concerned, originally it is rightly registered under Section

174 of Cr.P.C. and since the death of the wife is within 7 years of the

marriage, they have to wait for the mandatory RDO enquiry. Upon receipt

of the mandatory RDO enquiry report, first alteration under Section 306 of

IPC was erroneously made and however upon entrustment of the

investigation to the Deputy Superintendent of Police, upon legal advise, the

second alteration was correctly made and the report was also filed before

the concerned Magistrate Court and thereafter, the investigation was

correctly proceeded with and the final report has been filed. He would

further submit that there is no contradiction of material nature in the

evidence as pointed out by the learned Counsel for the petitioners/accused

and submit that even P.W.2 also has stated about the dowry harassment for

purchasing a bike in her evidence and a reading of the evidence of P.W.1

and P.W.2 would not reveal any contradiction and therefore, he would

submit that the contention of the learned Counsel for the petitioners is

incorrect. He would also submit that even though some of the witnesses

have turned hostile, they were cross-examined on behalf of the prosecution.

The evidence of P.Ws.1 to 3 on record, the family members of the deceased

victim were corroborated by the P.Ws.4 and 5 and further corroborated by

the medical evidence on record. Therefore, the prosecution has proved the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

charges to the hilt in this case and therefore, there is no any iota of doubt

whatsoever so as to interfere in the Judgments of the Court below by

exercising the revisional jurisdiction. He would also submit that when

P.Ws.1 and 2 have categorically deposed that the deceased-victim has

mentioned to him that all the four accused attacked on her cheek, there is no

any ground to suspect the involvement of the accused 3 and 4 and therefore

he would pray that the trial court and the lower appellate court have rightly

convicted the accused and prayed for dismissal of this revision.

12. I have considered the rival submissions of both sides. I have also

considered the material evidence available on record.

13. On an appreciation of the evidence of P.W.1 and P.W.2, I do not

find any material contradiction as argued by the learned Counsel for the

petitioners. As a matter of fact, P.W.1 has deposed as follows:

''...vjphpfs; tPl;ow;F ehd; brd;W vdJ j';if tp$paplk; clk;g[ rhpapy;iy vd;W vdf;F nghd; bra;jhh;fs;/ vd;d ele;jJ vd;W nfl;nld;/ vdJ j';if mjw;F vdf;F ,Gg;g[ tutpy;iy vd;Wk; nkhl;lhh; irf;fps; th';fp jutpy;iy vd;W vjphpfs; M$h; vjphpfs; 4 ngUk; moj;jjhf Twpdhh;/..'' P.W.2 has deposed as follows:

''...vdJ j';if nghl;oUe;j eiffis vjph;j;j tPl;oy; ,Ue;j https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

gj;jhplk; eifia fHw;w brhy;y th';fp fthp'; eifah. gt[d; eifah vd;W ghh;g;gjw;fhf fhz;gpj;Js;shh;fs;/ tPl;oy; cs;s 4 ngUk; nfl;lhh;fs; vd;Wk;. vdJ j';if Vd;

re;njfg;gl;L ghh;f;fpwPh;fs; vd;W nfl;ljw;F eif gt[d; eifah. gpj;jis eifah vd;W ghh;j;njhk; vd;W vdJ j';ifaplk; Twpa[s;shh; vd;Wk;. vd; tPl;oy; fthp'; eifah nghLfpwPh;fs; vd;W vdJ j';if nfl;ljw;F moj;jjhf vd; j';if vd;dplk; Twpdhh;/ tz;o vg;nghJ th';fp bfhLf;f nghfpwPh;fs; vd;W tk;g[ tsh;j;jhh;fshk;/ vdJ j';ifia ehd;F ngUk; bfhLikg;gLj;jp moj;J tpl;lhh;fs;//// '' Therefore, even P.W.2 has also spoken about the harassment meted

out to her sister by demanding a bike. Just because she has mentioned about

the gold episode in addition, that would not render the prosecution case

vulnerable to doubt.

14. As far as the submission of the learned Counsel for the petitioners

that the entire investigation in this case is vitiated and that the alterations of

the sections would vouch for the said fact is concerned, a perusal of the both

alteration reports on record would reveal that on the first occasion on the

self-same allegations, the case was altered into one under Section 306 of

IPC, albeit, wrongly. Thereafter, when the investigation was handed over to

the Deputy Superintendent of Police, the second alteration has been rightly

made as per the legal advise of the learned Additional Public Prosecutor and https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

therefore, I do not find any legal impediment or material irregularity in the

same which would make the entire investigation invalid. Neither the same

has in any manner cause prejudice to the accused or to their defence.

Therefore, I am rejecting the said submission made by the learned Counsel

for the petitioners.

15. As far as the submissions made by the learned Counsel for the

petitioners relating to the independent witnesses turning hostile, I find that

the same is also without any merit inasmuch as the evidence of P.Ws.1 and

2 are corroborated by P.W.3, the mother which was further corroborated by

the independent evidence of P.W.4 and P.W.5 coupled with the medical

evidence on record, proves the charge and therefore, the said submission of

the learned Counsel for the petitioners is rejected.

16. Coming to the contention of the learned Counsel for the

petitioners regarding the specific overt act against the accused 3 and 4, I

find there is some force in his submissions. Even at the earliest point of

time, in the Revenue Divisional Officer's Report, in the statement given by

the witnesses the fact that the accused 3 and 4 were residing separately is

recorded. The Investigating Officer had also admitted in his cross- https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

examination that he had come to know that they were residing separately.

On the other hand, the evidence of P.W.1 which reads as follows:

                                         ''jpUkzj;jpw;F      gpwF tp$p kw;w vjphpfSld;
                                  jpl;ilapy;  cs;s            khhpak;kd;nfhtpy; bjUtpy;
                                  FoapUe;jhh;fs;/                vy;nyhUk;      xd;whf
                                  FoapUe;jhh;fs;////''

As far as the evidence of P.W.2 is concerned, she has deposed that

her sister has told her that

''.... tPl;oy; cs;s ehd;F ngUk; nfl;lhh;fs;///''

At this stage, it is pertinent to state here that the father-in-law was

also in the house. However, he has not been added as an accused because he

was away from the scene of occurrence on the date of occurrence which is

clear from the Revenue Divisional Officer's Report. Under these

circumstances, there is an iota of doubt as to the involvement of the accused

3 and 4 is concerned.

17. The learned Counsel for the petitioners would also submit that

when the marriage itself has taken place on 24.06.2007, the first incidence is

said to have taken place within few days of the marriage. Therefore, it is

extremely unbelievable that the 4th accused, being the husband of the sister-

in-law would have given a blow on her cheek. Under these circumstances, https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

in the absence of any other clinching proof about the involvement of the

accused 3 and 4 with the crime, I find that there is force in the contention of

the learned Counsel appearing on behalf of the petitioners that there is no

enough material to convict the accused 3 and 4 for the offences alleged

against them, as the only evidence against them is that of PW-1 and PW-2

and the RDO's report and Investigation Officer's evidence go to the contrary.

18. As a matter of fact, it is seen from the entire cross-examination

of the accused including that of the Investigating Officer, such a defence has

been specifically taken and without even adverting to the cross-examination,

the trial court and the first Appellate Court have merely relied upon the

statement of P.Ws.1 and 2 that ''vjphpfs; ehd;F ngUk; tz;o th';fp

bfhLf;ftpy;iy vd; kfis bfhLikg;gLj;jpdhh;fs;/'' Therefore, the non-

consideration of the specific defence in detail and proper perspective is a

grave error leading to miscarriage of justice as far as the accused 3 and 4 are

concerned. Therefore, it is a fit case for this Court to interfere with the

findings of the courts below by exercising the revisional jurisdiction. and

accordingly, I an inclined to set aside the conviction and sentence imposed

on the 3rd accused Radha and the 4th accused Mahendran, while confirming https://www.mhc.tn.gov.in/judis

Crl.R.C.No.902 of 2014

the conviction and sentence in respect of the accused 1 and 2 in this case.

As far as the quantum of sentence is concerned, the trial court has imposed

only a minimum sentence of 7 years for the offence under Section 340(B)

IPC. Therefore, it does not warrant any interference by this Court.

19. In the result, the Criminal Revision Case is partly allowed. The

conviction and sentence imposed by the learned Assistant Sessions Judge,

Nagapattinam in S.C.No.141/2011 by judgment dated 03.01.2013 and

confirmed by the judgment of the Mahila Fast Track Court, Nagapattinam

dated 03.06.2014 in C.A.No.1/2013 in respect of the accused 3 and 4 are set

aside. The conviction and sentences in respect of the petitioners/accused 1

and 2 are confirmed. The fine amount, if any, paid by the accused 3 and 4

is ordered to be refunded to them. Consequently, connected Miscellaneous

Petitions are closed.

22.12.2021

Index : yes Speaking

tsi

D.BHARATHA CHAKRAVARTHY, J.

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Crl.R.C.No.902 of 2014

tsi

To

1.Mahila Fast Track Court, Nagapattinam.

2.The Chief Judicial Magistrate, Nagapattinam.

3.The Public Prosecutor, High Court, Madras.

4.The Inspector of Police, Sirkazhi Police Station.

Crl.R.C.No.902/2014

22.12.2021

https://www.mhc.tn.gov.in/judis