Madras High Court

Manickam vs State Represented By on 16 June, 2022

                                                                                Crl.A. No. 311 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 16.06.2022

                                                         CORAM :

                        THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                Crl.A. No. 311 of 2019

                     Manickam                                                 ..Appellant

                                                           Vs.

                     State represented by
                     Asst. Commissioner,
                     (Law and Order),
                     Salem City,
                     South Division,
                     of Kondalampatti Police Station
                     (Cr.No. 51 of 2015)                                      ..Respondent

                     Prayer:        Criminal Appeal as against the judgment dated 25.02.2019

                     passed in S.C. No. 310 of 2015 by the Sessions Court, Mahila Court, Salem.

                                         For Appellant      ::     Mr.Thangavel for
                                                                   Mr.P.K. Harinath

                                         For Respondent     ::     Mr.S. Vinoth Kumar
                                                                   Govt. Advocate
                                                                   (Crl. Side)




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                                                                                 Crl.A. No. 311 of 2019

                                                      JUDGMENT

This appeal is filed against the judgment dated 25.02.2019

passed in S.C. No. 310 of 2015 on the file of learned Sessions Judge,

Mahila Court, Salem, in and by which the learned Sessions Judge has

convicted the appellant for the offences under Section 498(A), 304(B) IPC

and Section 4 of Dowy Prohibition Act and sentenced him as hereunder:

(i) for the offence under Section 498(A) IPC, the appellant was

sentenced to undergo rigorous imprisonment for a period of 3 years and to

pay a fine a Rs.1000/-, in default to undergo simple imprisonment for a

period of 6 months;

(ii) for the offence under Section 304(B) IPC, the appellant was

sentenced to undergo rigorous imprisonment for 7 years and

(iii) for the offence under Section 4 of the Dowry Prohibition Act,

sentenced him to undergo 6 months rigorous imprisonment and imposed a

fine of Rs.1000/- carrying a default sentence of simple imprisonment for a

period of one month .

2. On 16.02.2015, when P.W.8, namely, Rajasekaran, Sub-

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Inspector of Police was on duty at Kondalampatti Police Station, P.W.1,

Chandra came to the Police Station and lodged a complaint to the effect that

one Poornima, her daughter, was given in marriage to the appellant and after

the marriage, the appellant is said to have harassed her demanding the

balance 5 sovereigns of gold, out of 10 sovereigns, which was promised to

be given at the time of marriage. Unable to bear the torture, P.W.1's

daughter died. Based on the said complaint, a case was registered in Crime

No. 51 of 2015 initially for the offence under Section 174 Cr.P.C., which

was later on altered into one under Section 304(B) IPC.

3. P.W12, the Investigating Officer, took up the case for

investigation and laid the final report proposing the appellant guilty of the

offences under Sections 498(A) & 304(B) IPC and Section 4 of Dowry

Prohibition Act. The case was assigned PRC No. 28 of 2015 by the learned

Judicial Magistrate cum Mahila Court, Salem and after furnishing copies as

per Section 207 Cr.P.C., committed the case under Section 209 Cr.P.C. to

the Sessions Court, which thereafter was made over to the Trial Court and

the case was taken on file as S.C. No. 310 of 2015. Upon framing of

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charges under Sections 498(A) & 304(B) IPC and Section 4 of Dowry

Prohibition Act, the appellant denied the same and stood trial.

4. To bring home the charges, the prosecution examined the

mother of the deceased as P.W.1, the father of the deceased as P.W.2, a

person residing in the same locality as P.W.3, a neighbour by name Vasuki

as P.W.4, the Village Administrative Officer as P.W.5, the Head Constable,

who identified the dead body to the Revenue Divisional Officer as P.W.6,

the Special Sub Inspector of Police, who handed over the report regarding

the death of the victim in this case to the Court of Judicial Magistrate No.V,

Salem as P.W.7, the Sub Inspector of Police, who registered the FIR as

P.W.8, a Doctor, by name, Sangeetha, who conducted postmortem as P.W.9,

another Doctor, by name, Dharani, who declared the victim as having been

brought dead as P.W.10 and the Revenue Divisional Officer, who conducted

inquest as P.W.11 and one Ravindran, the Investigating Officer as P.W.12.

5. On the side of the prosecution, the complaint was marked as

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Ex.P1, the Observation Mahazar as Ex.P2, the signature of the Village

Administrative Officer in the confession statement of the accused as Ex.P3,

the First Information Report as Ex.P4, the request letter given for

conducting postmortem as Ex.P5, the postmortem report as Ex.P6, the

Chemical Analysis Report as Ex.P7, the final opinion of the postmortem

doctor as Ex.P8, the requisition given to the Revenue Divisional Officer for

conduct of inquest as Ex.P9, the Inquest Report as ExP10, the statements of

witnesses and panchayatars recorded during inquest and the final opinion of

the Revenue Divisional Officer as Ex.P11, the proforma sent for

postmortem as Ex.P12, rough sketch as Ex.P13 and the alteration report as

Ex.P14.

6. Upon being questioned about the evidence let in and the

incriminating circumstances, the appellant denied the same as false.

Thereafter, on behalf of the defence, one Raja, an official from the Co-

operative Society was examined as D.W.1 and Exs.D1 to D3, being receipts

issued for pledging of gold were marked.

7. After hearing the learned Additional Public Prosecutor on

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behalf of the prosecution and the learned counsel for the accused and after

perusal of the evidence on record, the Trial Court, by judgment dated

25.02.2019 found the accused/appellant guilty of the offences under

Sections 498(A) & 304(B) IPC and Section 4 of Dowry Prohibition Act and

sentenced as aforesaid. Aggrieved by the same, the present appeal has been

laid before this Court.

8. Heard Mr.Thangavel, learned counsel for the appellant and

Mr.S. Vinoth Kumar, learned Government Advocate (Crl.Side) for the

respondent.

9. The learned counsel for the appellant, taking this Court through

the evidence of P.Ws 1and 2 would submit that a careful perusal of the said

evidence would make it clear that there was no demand for dowry nor there

was any allegation throughout, right from the marriage and thereafter, the

victim separating from her husband and coming to her parents house on

account of the fact that her husband was not potent and thereafter, reuniting

with her husband after the Police Complaint and giving in writing before the

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Police. Only after her suicide, suddenly, on behalf of P.Ws. 1 and 2, the

incident that the appellant made a phone call on 15.02.2015 and demanded

the balance 5 sovereigns of gold, has been alleged and on the strength of the

said statements made by P.W.s 1 and alone, the appellant has been

convicted. He would further submit that eventhough on the side of the

prosecution, it has been specifically alleged that the said call was made by

the appellant through mobile phone, they omitted to produce such valuable

scientific evidence to corroborate the version of P.W.s 1 and 2 and

therefore, the very incident raises a serious doubt as regards the said claim

made by the parents of the victim. This apart, he would further submit that

it is the categoric case of the defence from the stage of the Revenue

Divisional Officer's enquiry that it was not due to the demand made for

balance jewels, but due to the reason that P.W.2, the father of the victim had

pledged the jewels, which the victim had left in her parents house when she

came there and P.W.2 did not redeem the jewels in spite of her demand. On

the other hand, he pressurised her to leave the appellant and come home,

since the appellant is impotent. Feeling saddened and broken by the said

conduct of her parents, the victim suddenly committed suicide. The learned

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counsel would further submit that this aspect has been established during

the cross-examination of P.W.11, the Investigating officer, who had

categorically admitted that in spite of this being made as a statement before

the Revenue Divisional Officer, he did not investigate into the entire

episode. To top it all, a detailed cross-examination of P.W.s 1 & 2 was

done and their case was one of total denial about the entire episode of

pledging of jewels. Therefore, on the face of it, the accused has proven that

P.W.s 1 and 2 were lying before the Court and their evidence is not at all

trustworthy. Therefore, the Trial Court ought not to have convicted the

appellant and ought to have acquitted him.

10. Per contra, the learned Government Advocate (Criminal Side)

would submit that P.W.1 has categorically deposed that there was a demand

for dowry within one month of marriage and the appellant was constantly

demanding 5 sovereigns and on several occasions, the victim had

telephoned and cried to her. P.W.1's evidence is also corroborated by P.W.2.

The case is very clear right from the First Information Report to the Inquest

and the evidence is categorical and illuminating that there was a demand for

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balance 5 sovereigns of gold, which was promised to be given at a later

stage and just because, the victim chose to give a second try and rejoined

the appellant, taking advantage of the same, the appellant was pressurizing

her parents and thereby tortured the victim for the balance 5 sovereigns of

gold. It is also seen that to the call made by the victim in this case asking

P.W.2 for the balance 5 sovereigns of gold, P.W.2 had answered that he will

give those 5 sovereigns of gold as and when a child is born to the victim,

which would have naturally enraged the appellant, as there is an allegation

of impotency against him, who, in turn, tortured the victim, which made her

to take the extreme step of committing suicide. Therefore, the learned

Government Advocate would submit that the prosecution has established to

the hilt the offences under Sections 498(A) IPC, 304(B) IPC and Section 4

of Dowry Prohibition Act. He would further submit that on a detailed

enquiry on the spot, the Revenue Divisional Officer has concluded in his

report that death was only due to dowry demand, which has been marked as

Ex.P11 and therefore, the Trial Court has rightly convicted the appellant for

the aforesaid offences.

11. I have considered the rival submissions made on behalf of both

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sides and perused the material records of the case.

12. On a careful and complete reading of the evidence on record, it

is clear that all was not well with the couple immediately after the marriage.

The reason seems to be that there was no physical intimacy between them.

Therefore, the victim/wife had gone back to her parents’ house and she had

complained that her husband was not potent. Then, from a reading of the

chief-examination and cross-examination of P.W.s 1 and 2 and the report of

the Revenue Divisional Officer, it is clear, on account of the said allegation,

a divorce petition was also filed before the Court. However even before

divorce could be granted, P.W.s 1 and 2 wanted their daughter to move on

and had taken her to Bhavani Amman Temple with an intention to marrying

her off to another person after worshipping the deity and the victim had

informed the appellant about the same. To that extent, the evidence is

uncontroverted. However, what is in controversy is that P.W.s 1 and 2

would say that the appellant took the victim forcibly in a car to his home

whereas it is the statement of the appellant in the enquiry conducted by the

Revenue Divisional Officer that the victim came on her own. Be that as it

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may, it seems that subsequent to the Police complaint given by the parents

of the victim, the Police had treated the complaint as a petition in which

both the victim and the appellant had given in writing that they will give

one more try and the victim had gone along with the appellant. Thereafter,

they had lived for 10 months together and on 15.02.2015, the victim had

committed suicide. It is the husband, who had immediately seen her and

had entered the house and brought the body down and had even

accompanied to the hospital and participated in the inquest report and the

enquiry by the Revenue Divisional Officer.

13. After the death, it is the specific case of P.W.s 1 and 2 that on

15.02.2015, the accused had called P.W.2 over mobile phone and demanded

the balance 5 sovereigns of gold. The conversation ended in heated

exchanges. After disconnecting the call, the appellant is said to have

spoken ill about the father of the victim and tortured her on account of

which she committed suicide is the case of the prosecution. However, when

P.W.1 was cross-examined in respect of the demand for jewels, she had

answered as follows:

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“vd; kfs; 8 khjk; v';fs; tPl;oy; ,Ue;j nghJ mtSila bef;y!; 3 rtud; cilaij nryk; v!;

bfhy;yg;gl;oapy; cs;s bjhlf;f ntshz;ik Tl;Lwt[ fld; r';fk; . ntLfhj;jhd; gl;o nrit ikak; vd;w ,lj;jpy; U:gha; 30000-=j;jpw;F vd; kfs; g{h;zpkh bgahpy; mlkhdk; itj;njd; vd;why; rhpay;y/ me;j mlkhd vz;/5128 vd;why; rhpay;y/ mJ bgha;/ gpd;dpl;L mnj eifia 17/11/2014 e;njjp md;w g{h;zpkh nghpy; ,Ue;j eifia vLj;J mj;Jld; xU gt[d; brapid nrh;j;J U:gha; 38.000-= mnj ng';fpy; vd; fzth; mlkhdk;

itj;Js;shh; vd;why; rhpay;y/ me;j fld;

vz;/7845 vd;why; rhpay;y/ me;j fld; jw;nghJ epYitapy; cs;sJ vd;why; rhpay;y/ vd; kfs;

nghl;LapUe;j eif vy;yhk; vjphpaplk; jhd; cs;sJ/ Similarly, when P.W.2 was cross-examined, his answer is as follows:

@vd; kfspd; K:d;W rtud; bef;y!;ir vd; kfs;

thHhky; vd; tPl;oy; 8 khjk; ,Ue;j nghJ U:gha; 30000-= f;F vd; kfs; nghpy; mlkhdk; itj;njd;

vd;why; rhpay;y/ xU Fz;Lkzp Tl jtwhky;

vjphp tPl;oy; jhd; vd; kfspd; eif ,Ue;jJ/ me;j mlkhd fld; vz;/ 5128 vd;why; rhpay;y/ 17/11/2014 njjp vd; kfs; g{h;zpkhtpd; nghpy; ,Ue;j eifia jpUg;gptpl;L mj;Jld; ,d;Dk; xU gt[d;

brapd; nrh;j;J vd;Dila bgahpy; U:gha; 38000-=f;F itj;J ,d;Dk; ,J epYitapy; cs;sJ vd;why;

rhpay;y/ me;j mlkhd fld; vz;/7845 vd;why;

rhpay;y/ vd; kfs; Mog;gz;oiff;F te;j nghJ eif nghl;Lf; bfhz;L te;jhs; vd;why; rhpay;y/@

14. To prove the said fact, on behalf of the defence, D.W.1 was

examined and Exs. D1 to D3 were marked. It could be seen from the cross-

examination of P.W.s 1 and 2 that their answers were one of total denial. It

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is not their case that they had pledged some other jewels. Therefore, the

said version of the appellant was given at the earliest point of time before

the Revenue Divisional Officer himself and it would be useful to extract the

relevant portion of Ex.P11 on this aspect and it reads as follows:

“2 khj';fSf;F Kd; jd; kidtp mth;fs;

bgw;nwhUf;F nghd; bra;J. jhd; tpl;L te;j jdJ eiffs; Mfpa bfho. jhyp. nkhjpuk; bfhL';fs;

vd nfl;lbghGJ. Mz; jd;ikaw;w mtdplk;

vjw;fhf gpiHf;fpwha;. jd; ngr;ir nfs; vd;W Twpajhy; jd; kidtp nghid fl; bra;J tpl;lhs;

vd;Wk;///@

Therefore, on a dispassionate and complete reading of the evidence, it

is clear that the poor victim girl had been under pressure from both sides

and therefore, she decided to end her life. In this context, in the absence of

scientific evidence regarding the phone call, especially, considering the

evidence of P.W.s 1 and 2, totally denying about the pledging of jewels, it

would be unsafe to believe that soon before her death, she had been

subjected to dowry harassment by the husband on account of which she died

an unnatural death. In this regard, learned counsel for the appellant would

rely upon the judgment of this Court dated 15.03.2019 in State V.

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Udayasankar & Others in Crl.A. No. 369 of 2010 wherein at paragraph

No.24, this Court had held as follows:

“24. Further, the parents of the deceased had stated that they have spoken to their daughter, the deceased on the day of occurrence. It is neither been supported by the evidence of P.W.5, the neighbour nor by any scientific evidence. No investigation has been done by the respondent police with regard to such telephonic conversation stated to have been made between the deceased and her parents on the date of occurrence. Thereby, the trial Court finding that the respondent police have not proved the case beyond all reasonable doubt, acquitted the respondents/accused.”

Therefore, considering the evidence of D.W.1, the answers given in the

cross-examination by P.Ws. 1 and 2, the extracted portion of Ex.P11 and the

answers given by the Investigating Officer in the cross-examination that he

did not investigate in this angle at all, I am of the view that it would be

unsafe to believe the version of the prosecution so as to convict the

appellant for the offence under Section 304(B) IPC that he harassed the

victim soon before her death, which ultimately resulted in her taking the

extreme decision of committing suicide and therefore, I acquit the appellant

of the offence under Section 304(B) IPC by giving him the benefit of doubt.

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15. At the same time, if the evidence is considered, it may be seen

that initially after marriage, the couple had even more serious problem with

regard to physical relationship and as per the appellant’s own statement

before the Revenue Divisional Officer, after reunion, they went to the

hospital and were taking treatment. It is quite but natural that when things

were getting normal between the couple, he had insisted for the balance 5

sovereigns of jewels. In this regard, the evidence of P.W.1 that on several

occasions, the balance 5 sovereigns of gold had been demanded cannot be

totally discarded and to that extent, the evidence of P.Ws. 1 and 2 that there

was a demand for balance 5 sovereigns of gold is believable. Therefore, to

that extent, I hold that the prosecution has proved the offence under Section

4 of Dowry Prohibition Act and the demand made and the talks in respect

thereof amounts to mental cruelty and therefore, the offence under Section

498(A) IPC is also made out.

16. The Trial Court has sentenced the appellant for a period of six

months rigorous imprisonment and imposed a fine of Rs.1000/- for the

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offence under Section 4 of Dowry Prohibition Act and the same is hereby

confirmed. As far as the offence under Section 498(A) IPC is concerned,

considering the nature of the offence and the above finding of this Court

that there was some pressure on the victim on her parents’ side as well, I am

inclined to reduce the sentence imposed and accordingly, the rigorous

imprisonment for 3 years is reduced to rigorous imprisonment for 2 years in

respect of the said offence. The fine amount of Rs.1000/- stands confirmed.

17. In the result, the criminal appeal is partly allowed on the

following terms:

(i) The conviction and sentence imposed on the appellant

by judgment dated 25.02.2019 in S.C. No. 310 of 2015 for

the offence under Section 304(B) IPC is set aside;