Madras High Court
Kanagavel @ Kannan vs The Inspector Of Police on 6 October, 2021
Crl.A.(MD)No.370 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.(MD) No.370 of 2015
1. Kanagavel @ Kannan
2. Tamilarasi ... Appellants/Accused Nos.1 & 2
Vs.
The Inspector of Police,
Thiruverumpur Police Station,
Thiruverumbur,
Trichy District. ... Respondent/Complainant
PRAYER: The Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to call for the records relating to the judgment dated
14.10.2015 in S.C.No.170 of 2013, on the file of the learned Sessions
Judge, Mahila Court, Tiruchirappalli and set aside the same.
For Appellants : Mr.N.Anandkumar
For Respondent : Mr.M.Muthumanikkam
Government Advocate (Crl.side)
1/23
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JUDGMENT
The present Criminal Appeal is directed against the conviction
and sentence, dated 14.10.2015, made in S.C.No.170 of 2013, on the file of
the learned Sessions Judge, Mahila Court, Tiruchirappalli.
2. The appellants are arrayed as accused Nos.1 & 2 in the above
referred case. Along with one another accused they stood charged for the
offences under Sections 498(A) and 304(B) of IPC.
3. After full-fledged trial, the learned Sessions Judge, Mahila
Court, Tiruchirappalli, came to the conclusion that both the appellants were
found guilty for the offences punishable under Sections 498(A) and 304(B)
of IPC. After concluding as above, for an offence under Section 498(A) of
IPC, the learned Sessions Judge, Mahila Court, Tiruchirappalli, convicted
and sentenced the appellants to undergo Rigorous Imprisonment for 3 years
and to pay a fine of Rs.1,000/- each, in default, to undergo Simple
Imprisonment for 3 months. Similarly, for an offence under Section 304(B)
of IPC, they were convicted and sentenced to undergo Rigorous
Imprisonment for 10 years. The sentences are run consecutively.
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4. Being dissatisfied with the above conviction and sentence, the
appellants are before this Court by way of filing the present Criminal
Appeal.
5. The case of the prosecution is that:-
(i) P.W.1-Sandhar was residing at Thirunallur Village,
Pudukkottai District and doing agricultural work. P.W.2-Rangammal is his
wife and they were blessed with four girl children and one son. The
deceased Jaya @ Jayalalitha is their third daughter. She married the first
accused in the year of 2010 at Samayapuram temple. During the time of
marriage, P.W.1 gave 13 sovereigns of gold and Rs.50,000/- to the first
accused as Sridhana property. After the marriage, the deceased lead a joint
family along with the accused in the matrimonial home.
(ii) After 6 months from the date of marriage, both the accused
demanded the deceased to bring a cash of Rs.50,000/- and 5 sovereigns of
gold. In such circumstances, in order to fulfill the demand made by the
accused, P.W.1 gave Rs.50,000/- to the first accused and promised to give 5
sovereigns of gold within a month. Not satisfying with the words given by
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P.W.1, both the accused given a constant torture to the deceased and
thereby, the deceased came to P.W.1's house and told about the harassment
given by the accused.
(iii) Before the occurrence, the deceased informed the P.W.1
through phone about the untolerable situation prevailed in her house. In this
regard, P.W.1 informed to the deceased that he would come and pickup her.
But, the deceased told to P.W.1 that she would come by herself. In the said
situation, P.W.1 received an information as his daughter was died. The
neighbours of the accused informed about the death to P.W.1. Immediately,
after receipt of the said news, the family members of P.W.1 came to
Thiruverumbur and lodged a complaint before P.W.13.
(iv) P.W.13-P.Rajendran, the then Special Sub-Inspector of
Police, Thuvakkudi Police Station, on 30.03.2012 received a complaint
from P.W.1 and registered a case in Crime No.169 of 2012 under Section
174 of Cr.P.C. The signature of P.W.1 found in the complaint was marked
as Ex.P1 and the copy of the First Information Report was marked as Ex.P9.
Further, the alleged complaint given by P.W.1 was marked as Ex.P20
through the Investigating Officer. After registeration of the case, he
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forwarded the copy of the FIR to the Revenue Divisional Officer (RDO) for
enquiry. Further he sent another one copy to the Deputy Superintendent of
Police (Palanisamy, now died) for investigation.
(v) On receipt of the copy of the FIR, P.W.15-G.Sampath, the then
Revenue Divisional Officer took up the same for enquiry. On the same day,
he visited the Government Hospital and in the presence of witnesses, he
held inquest. He recorded the statements from the witnesses and gave
opinion as due to the demand of dowry made by the accused, the deceased
committed suicide. The report given by P.W.15 was marked as Ex.P10 and
the inquest report prepared by him was marked as Ex.P22. After preparing
the inquest, he submitted an application before the hospital authorities for
conducting autopsy over the dead body of the deceased Jaya @ Jayalalitha
and afterwards, P.W.16-Dr.A.Ravikumar attached with the Government
Medical College Hospital, Tiruchirappalli on the same day around 3.15
p.m., conducted autopsy and found the following injuries:-
“Moderately nourished body of a female finger and toe
nails intact and cyanosis injuries: (1) An oblique dark brown
colour abrasion 27cm x 4 cm in the front and sides of the neck
at the level of thyroid cartilage, the front of neck 4 cm from the
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right angle of mandible and 3 cm from the left angle of mandible
and on the back of neck the ligature mark merges with hairline.
On bloodless dissection of the neck the underlying ligatures are
pale, firm and glystering.
2. Dark brown colour abrasion on the right side of
lower leg 0.5 cm x 0.5 cm and linear abrasion on the right side of
the neck 1 cm x 0.2 cm. The above mentioned wounds are
antemortem. No other external, internal or bony wounds.
(vi) During such time, he collected a visceral particles and sent
the same for chemical examination. In the chemical examination, P.W.18-
S.S.Rajendran, has not detected any poison and therefore, he issued a report
under Ex.P15 stating that no poison was detected. On receipt of the said
report, P.W.16 issued a postmortem certificate under Ex.P12 along with
final opinion as the deceased would appear to have died of hanging. The
final opinion given by P.W.16 was marked as Ex.P13.
(vii) In the meantime, one Palanisamy, the then Deputy
Superintendent of Police took up the case for investigation. He visited the
scene of occurrence and prepared an Observation Mahazar under Ex.P18.
He drawn the two rough sketch and the same was marked as Ex.P16 and
Ex.P17. He examined the witnesses and recorded their statements. In the
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scene of occurrence, in the presence of witnesses, he recovered a saree
(M.O.1) under the cover of seizure mahazar Ex.P21.
(viii) In continuation of investigation, after receipt of the report
from the Revenue Divisional Officer, he altered the section of law from 174
Cr.P.C. to 498(A) and 304(B) of IPC. He sent the alteration report to the
Court under Ex.P23. After concluding the investigation, he came to the
positive conclusion that both the appellants herein and the other accused
(now acquitted) are liable to be convicted under Sections 498(A) and
304(B) of IPC and filed a final report, accordingly.
6. From the above materials, the trial Court framed the charges for
the offences punishable under Sections 498(A) and 304(B) of IPC. All the
accused denied the charges and opted for trial. Therefore, they were put on
trial.
7. Before the trial Court, in order to prove their case on the side of
the prosecution, 19 witnesses were examined as P.W.1 to P.W.19 and 23
documents were exhibited as Ex.P1 to Ex.P23, besides one material object
(M.O.1)
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8. Out of the above said witnesses, P.W.1-Sandhar is the father of
the deceased. Before the trial Court, though he was treated as hostile
witness, before that, he gave evidence as to the marriage solemnized
between the first accused with the deceased and about the Sridhana property
paid to them. He speaks about the occurrence as after 6 months from the
date of marriage, all the accused made harassment to the deceased, wherein,
they demanded the deceased to bring Rs.50,000/- and 5 sovereigns of gold
from her parental. He had further given evidence that on 30.03.2012, all the
accused had murdered his daughter and the same was informed to him by
the neighbours of the accused.
(ii) P.W.2-Rangammal, P.W.3-Ammakkannu and P.W.4-
Chinnaraja are the mother, sister and brother of the deceased respectively,
spoken about the occurrence as after 6 months from the date of marriage,
both the accused herein, started to give torture to the deceased and
demanded to bring Rs.50,000/- and 5 sovereigns of gold from her parents
house. They further stated about the panchayat held. According to them, the
deceased frequently reported the manner of torture given by the accused.
Further, they states about the result of panchayat, wherein, all the accused
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gave assurance as they do not made any further demand. It was a specific
evidence given by them as after 2 months from the said panchayat, they
received an information about the death of the deceased.
(iii) P.W.5-Chinnadurai, who is the cousin brother of the
deceased, spoken about the panchayat held in respect to the dispute having
by the first accused with the deceased. P.W.6-Manivel, P.W.7-Subramanian
and P.W.8-T.R.Rajendran gave similar evidence in support of the evidence
given by P.W.5.
(iv) P.W.9-T.V.Settu is the attested witness speaks about the
preparation of Observation Mahazar by the Investigating Officer.
(v) P.W.10-Sekar is also gave evidence in respect of the
preparation of Observation Mahazar.
(vi) P.W.11-Dr.Uma Kalyani attached with the Government
Hospital, Tiruchirappalli, gave evidence as on 30.03.2012, while she was in
duty, around 7.25 p.m., the first accused brought the deceased to the
hospital for treatment. On examination, she found that the deceased brought
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dead. In this regard she issued an Accident Register copy under Ex.P8.
(vii) P.W.12-K.Senthilvel, is an alleged occurrence witness did
not give any evidence in support of the case of the prosecution. Hence, he
declared as a hostile witness.
(viii) P.W.13-P.Rajendran has spoken about the receipt of
complaint from P.W.1 and about the registration of the case.
(ix) P.W.14-Marikannu gave evidence in respect to the
identification of dead body before the doctor.
(x) P.W.15-G.Sampath, the then Revenue Divisional Officer,
Tiruchirappalli, speaks about the preparation of inquest report and about the
opinion given by him in respect to the reason for committing suicide by the
deceased.
(xi) P.W.16-.Dr.A.Ravikumar speaks about the autopsy conducted
over the dead body and about the opinion given by him in respect of the
cause of death.
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(xii) P.W.17-Kanimozhi, the then Inspector of Police, All Women
Police Station, Thiruverumbur, speaks about the partial investigation made
in this case.
(xiii) P.W.18-S.S.Rajendran, Junior Scientific Officer, speaks
about the examination on visceral particles and about the issuance of report.
(xiv) P.W.19-Charles was working as personal writer of the then
Deputy Superintendent of Police's Office, Thiruverumbur. According to
him, the Investigation Officer Mr.Palanisamy is no more and being the
reason that he was working along with him, he knows about the signature
and handwriting of the Deputy Superintendent of Police Palanichamy. On
that way, he gave evidence in respect of the investigation conducted by the
then Deputy Superintendent of Police.
9. When the above incriminating materials were put to the
accused under Section 313 of Cr.P.C., they denied the same as false. On the
side of the defence, the first accused himself was examined as D.W.1 and
gave evidence as on the third day of the occurrence, the Sridhana properties
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which were given by P.W.1 was returned to him. He gave further evidence
as in the first night after refusing for cohabitation, the deceased torn the
shirt owned by him. Further, the same was witnessed by P.W.3 and after
came to the knowledge, both P.Ws.1 & 2 came there and brought the
deceased to the temple, wherein, the Poosari gave sacred ashes (jpUePW). He
has further stated that the deceased committed the same wrong and only due
to the same, the panchayat was held wherein, P.Ws.1 & 2 made assurance as
their daughter become alright. According to him, the deceased was stayed
in her parents house and only 2 months before the occurrence P.Ws.1 & 2
brought the deceased to his house and after reporting that she is having
some pain without any intimation she committed suicide. It is the further
evidence given by D.W.1 that after the occurrence, P.Ws.1 & 2 demanded
Rs.5,00,000/- (Rupees five lakhs only) for not initiating any action against
him. With the above evidence, the defence side evidence was closed.
10. Having considered all the above materials and on considering
the arguments advanced by the learned counsels on either side, the learned
Sessions Judge, Mahalir Court, Tiruchirappalli, came to the conclusion that
both the appellants are found guilty under Sections 498(A) and 304(B) of
IPC, convicted and sentenced the appellants as stated supra. Being
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dissatisfied with the said conviction and sentence, the appellants are before
this Court with this criminal appeal.
11. I have heard Mr.N.Anandkumar, learned counsel appearing
for the appellants and Mr.M.Muthumanikkam, learned Government
Advocate (Crl.side) appearing for the State. I have also perused the records
carefully.
12. The learned counsel appearing for the appellants would
contend that in respect of the offence under Section 304(B) of IPC,
necessary ingredients which are all required to prove the said offence has
not been brought out by the prosecution. He would further submits that the
evidence given by the defence witness is a real one and therefore, it cannot
be construed that the accused had harassed the deceased with a view to
receive the more dowry from the deceased.
13. Per contra, the learned Government Advocate (Crl.side)
appearing for the respondent police would submit that the minor
contradictions found in the evidence given by prosecution witnesses are not
sufficient to disbelieve the case of the prosecution. According to him, the
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evidence given by the first accused (D.W.1) is an after thought and the same
has not been substantiated by producing the relevant documents.
Accordingly, he prayed for dismissal of this appeal.
14. I have considered the rival submissions made by the learned
counsels appearing on either side.
15. To cull out the entire evidence given by P.Ws.1 to 4, it would
appear that after 6 months from the date of marriage, both the accused
herein, gave a constant torture to the deceased and made a demand to bring
Rs.50,000/- and 5 sovereigns of gold as additional dowry. In the said
situation, it is the submissions made by the learned counsel appearing for
the appellants that the said demand alleged to be made by the accused are
not come within the purview of dowry and therefore, it cannot be construed
that soon before the death of the deceased, the accused herein, made a
dowry demand and had not been committed any cruelty or harassment in
connection with the demand of dowry.
16. At this juncture, it would relevant to see the judgment of our
Hon'ble Apex Court in the case of Rajinder Singh v. State of Punjab AIR
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2015 SC 1359 : (2015) 6 SCC 477 wherein, our Hon'ble Apex Court has
held as follows:-
“20.We, therefore, declare that any money or property
or valuable security demanded by any of the persons
mentioned in Section 2 of the Dowry Prohibition Act, at
or before or at any time after the marriage which is
reasonably connected to the death of a married
woman, would necessarily be in connection with or in
relation to the marriage.”
Further in the same judgment, it was held as follows:-
21. The first two ingredients are satisfied in the instant
case. So far as the third ingredient, namely, whether the
deceased was subjected to cruelty soon before the death
is concerned, the Hon'ble Supreme Court in number of
cases considered what exactly “soon before death”
means;
The Hon'ble Supreme Court of India in Rajinder Singh
v. State of Punjab AIR 2015 SC 1359 : (2015) 6 SCC
477 : LNIND 2015 SC 133 : (2015) 1 MLJ (Crl) 737
after considering number of judgment, has finally held
as follows:
22. This Court in Surinder Sing v. State of
Haryana had this to say:
17. Thus, the words 'soon before' appear in
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Section 113-B of the Evidence Act, 1872 and
also in Section 304-B IPC. For the
presumptions contemplated under these sections
to spring into action, it is necessary to show
that the cruelty or harassment was caused soon
before the death. The interpretation of the
words 'soon before' is, therefore, important. The
question is how 'soon before'?. This would
obviously depend on the facts and
circumstances of each case. The cruelty or
harassment differs from case to case. It relates
to mind set of people which varies from person
to person. Cruelty can be mental or it can be
physical. Mental cruelty is also of different
shades. It can be verbal or emotional like
insulting or ridiculing or humiliating a woman.
It can be giving threats of injury to her or her
near and dear ones. It can be depriving her of
economic resources or essential amenities of
life. It can be putting restrings on her
movements. It can be not allowing her to talk to
the outside world. The list is illustrative and not
exhaustive. Physical cruelty could be actual
beating or causing pain and harm to the person
of a woman. Every such instance of cruelty and
related harassment has a different impact on
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the mind of a woman. Some instances may be a
grave as to have a lasting impact on a woman.
Some instances which degrade her dignity may
remain etched in her memory for a long time.
Therefore, 'soon before' is a relative term. In
matters of emotions we cannot have fixed
formulae. The time-lag may differ from case to
case. This must be kept in mind while examining
each case of dowry death.”
17. Now, applying the ratio laid down in the above referred
judgment with this appeal, here it is a case projected by the prosecution is
that after 6 months from the date of marriage, both the accused herein made
demand to bring Rs.50,000/- and 5 sovereigns of gold. The further case of
the prosecution is that in the panchayat held, Rs.50,000/- was paid by
P.W.1. In respect to the said story, P.W.1 who is the person, who alleged to
paid Rs.50,000/-, gave evidence as in the Panchayat he paid Rs.50,000/- and
5 sovereigns of gold to the accused.
18. On the other hand, P.Ws.2 & 3, who are the family members
of P.W.1 did not say about the paying of Rs.50,000/-. P.W.4, who is the son
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of P.W.1 gave evidence as he will pay Rs.50,000/- and 5 sovereigns of gold.
Therefore, on cull out the entire evidence given by the prosecution
witnesses in respect of the further demand made by the accused, they had
given a inconsistant evidence as to the demand made by the accused. Even
assuming that the accused made dowry demand, being the reason that the
same has made after 6 months from the date of marriage, the said demand is
not within the meaning of dowry demand under Section 2 of Dowry
Prohibition Act. In this occasion, for proving the offence under Section
304(B) of IPC, it is necessary for the prosecution to prove the following 4
conditions:-
(i) Death of the woman must have been caused by any burn or
bodily injury or death must have been occurred otherwise under normal
circumstances.
(ii) Death must have occurred within 7 years of her marriage
(iii) Soon before the death she must have been subjected to cruelty
or harassment by her husband or any relative of her husband
(iv) Such cruelty or harassment must have been in connection
with demand or dowry.
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19. Now, applying the above said ingredients with the instant
case, so far as the fourth ingredient namely, such cruelty or harassment must
have been in connection with demand or dowry.
20. Here is the case, the facts projected by the prosecution did not
prove the nexus between the demand of dowry, cruelty or harassment, based
upon such demand on the date of death of proximity. Therefore, the light of
the above discussions stated supra, as far as the offence under Section
304(B) of IPC, I am of the opinion that the prosecution has failed to prove
their case beyond reasonable doubt.
21. As far as the offence under Section 498(A) of IPC is
concerned, it is an admitted fact that the alleged occurrence had happened in
the matrimonial home. Though it was stated by the accused as the deceased
is having some mental illness, in order to substantiate the same, he has not
produced any relevant document to show that she is suffering from mental
illness. In otherwise, the evidence given by P.Ws.1 to 4 are all in a similar
way as after six months from the date of marriage, the appellants herein
made a harassment and as a result of which, the deceased returned to her
parental home and only after panchayat, which was arranged for settling the
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dispute having by the appellant with the deceased, the deceased was
returned to her matrimonial home. Particularly, upon the undertaking given
by the third accused she was returned to the matrimonial home, wherein, the
alleged occurrence had happened. Therefore, as already stated, after six
months from the date of marriage, there was a displeasure in the
matrimonial home and the same was due to the attitude of the appellants.
Though the panchayatars, who are all examined as P.Ws.5 to 8, are not
supported the case of the prosecution with entirety before treating them as a
hostile witness, they stated about the return of deceased to her parents home
and about the panchayat held in respect to the matrimonial dispute having
by the deceased. Therefore, the said evidence is sufficient to hold that in
the matrimonial home, the deceased was subjected to cruelty and thereby,
the said act committed by the accused is drive the deceased for committing
suicide.
22. In this occasion, it would necessary to see whether both the
appellants herein are committed willful conduct which is of such nature as
is likely to drive the deceased to commit suicide or not. On going through
the evidence given by P.Ws.1 & 2, who are the competent person to say
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about the occurrence, stated in their evidence as all the accused in this case
had commonly demanded to bring the additional dowry.
23. On the other hand, as rightly pointed out by the learned
counsel for the appellant that in the absence of any specific overt-act against
each appellant, we cannot hold that each of the appellant is held liable for
committing the act of cruelty. In this occasion, on go through the evidence
of P.W.2 the same would go to show that before left the matrimonial home,
the deceased informed to P.W.2 as the first appellant alone assaulted the
deceased. Further, it was the evidence given by P.W.2 that for take back the
deceased from the parental home, the first accused raised an objection for
not brought the deceased to his house. Therefore, the said evidence is quite
clear that only the first accused alone responsible for the entire occurrence.
Accordingly the said act committed by the first accused is within the limp of
explanation (a) of 498(A) of IPC and therefore, I am of the considered
opinion that the first appellant is guilty under Section 498(A) of IPC.
24. In fine, this Criminal Appeal is partly allowed. Conviction
and sentence awarded under Section 304(B) of IPC is set aside in respect to
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both appellants and for the offence under Section 498(A) of IPC, the second
appellant is acquitted and the first appellant is found guilty under Section
498(A) of IPC and sentenced to undergo Rigorous Imprisonment for three
years and to pay a fine of Rs.5,000/-, in default, to undergo one month
simple imprisonment. The period of imprisonment already undergone by
the appellant shall be set off under Section 428 of Cr.P.C. The trial Court is
directed to take steps to secure the custody of the first accused and make
him to undergo the remaning period of the sentence.
06.10.2021
Index : Yes/No
Internet : Yes/No
am
To:-
1.The Sessions Judge,
Mahila Court, Tiruchirappalli.
2.The Inspector of Police,
Thiruverumpur Police Station,
Thiruverumbur,
Trichy District.
3.The Section Officer,
Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
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R.PONGIAPPAN,J.
am
Crl.A(MD)No.370 of 2015
06.10.2021
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