Madras High Court
Sivakumar (A-1) vs State Rep. By on 26 April, 2023
Crl.A.No.358 of 2016
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.04.2023
CORAM :
The Hon'ble MR.JUSTICE D.BHARATHA CHAKRAVARTHY, J.
Crl.A.No.358 of 2016
1. Sivakumar (A-1)
2. Ramachandran (A-4) .. Appellants
-vs-
State Rep. by
The Inspector of Police,
Kuvagam Police Station,
Ariyalur District.
(Crime No.76/2014) .. Respondent
Criminal Appeal filed under Section 374 Cr.P.C. against the
judgment dated 20.04.2016 passed in S.C.No.96 of 2015 on the file of
Fast Tract Mahila Court, Ariyalur.
For Appellants : Ms.A.Nethra and
Mr.K.Gandhi Kumar
For Respondent : Mr.J.Subbiah
Govt. Advocate (Crl. Side)
*****
Page 1 of 20
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Crl.A.No.358 of 2016
JUDGMENT
On 20.05.2014, when P.W.17, Kala, Sub-Inspector of Police, was
on duty at Kuvagam Police Station, P.W.1, Ganesan, appeared before
her and lodged a complaint to the effect that his daughter, Sita, was
given in marriage to the first accused, Sivakumar and a child was born
on account of the wedlock. Right from three months from the date of
marriage, her in-laws and other family members repeatedly abused
and treated his daughter with cruelty and teased her that she belonged
to a poor family. They have also threatened that since she did not
bring any dowry, they are making arrangements to get the first
accused married again. Unable to bear all these torture and cruelty,
his daughter, Sita, came back to his house.
2. While so, on 16.05.2014, the second appellant/A-4,
Ramachandran, who is the brother of the first accused along with his
wife and others came to the house of P.W.1 and attacked the wife of
P.W.1 and snatched away the tender child. On account of the same,
his daughter had consumed some poisonous leaves (xLtd;jiH) about
1 p.m. and immediately thereof, she was taken to Senthurai hospital
and after first aid, she was referred to Ariyalur Government Hospital.
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Thereafter, she was taken to a private hospital, namely, Golden
Hospital, for specialised treatment and thereafter, she was taken to
Apollo Hospital, Trichy. However, not responding to the treatment,
she succumbed on 20.05.2014 and therefore, requested for action
against all the accused.
3. On the strength of the said complaint, a case in Crime No.76
of 2014 was registered initially under Section 174(iii) of the Code of
Criminal Procedure (in short 'Cr.P.C.'). P.W.21, the Investigating
Officer, thereafter, upon receipt of the report of the Revenue Divisional
Officer, altered the provision of offence to one under Sections 304B
and 498A of the Indian Penal Code (in short 'the IPC') and took up the
case for investigation and laid the final report proposing totally five
persons, namely, one Sivakumar, the first accused/husband of the
victim, one Kasinathan, the second accused/father-in-law of the victim,
one Rukkumani, the third accused/mother-in-law of the victim, one
Ramachandran, the fourth accused/brother-in-law of the victim and
one Usha, the fifth accused/sister of the third accused. The case was
taken on file in P.R.C.No.21 of 2015 by the learned Judicial Magistrate,
Jayamkondan and upon appearance of the accused and furnishing of
copies, the case was committed to the learned District and Sessions
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Judge, Ariyalur. Upon committal, the case was taken on file as
S.C.No.96 of 2015 and was made over to the Trial Court, namely, Fast
Track Mahila Court, Ariyalur, for conducting trial.
4. The Trial Court, after considering the materials on record, on
14.12.2015, framed two charges under Section 498A and 304B IPC
against all the accused persons. Upon being questioned, all the
accused denied the charges and stood trial. Thereafter, in order to
prove the charges, the prosecution examined the father of the victim,
namely, one Ganesan, as P.W.1. The sister of the victim, one
Sanghavi, was examined as P.W.2. Another sister of the victim, one
Sathya, was examined as P.W.3. The co-brother of P.W.1, one
Selvaraj, was examined as P.W.4. The cousin brother of P.W.1, one
Kumar, was examined as P.W.5. The maternal uncle of the victim, one
Palanivel, was examined as P.W.6. One Jayaraman, who was a
neighbour sought to be examined as independent witness and who was
examined as P.W.7, turned hostile. The mother of the victim, namely,
Gandhimathi, was examined as P.W.8. One Karunanithi, who was a
resident of the village and is the father-in-law of P.W.3, was examined
as P.W.9. One Kaliyaperumal, a resident of the village, who was
sought to be examined as independent witness and who was examined
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as P.W.10, turned hostile. P.W.11, one Rajendran, a resident of the
village, who was sought to be examined as independent witness,
turned hostile. Similarly, P.W.12, one Manivannan, sought to be
examined as independent witness, turned hostile. One Dr.Sivam was
examined as P.W.13 in the place of the doctor who gave treatment to
the victim at the Apollo Hospital, Trichy. One Dr.Kanmani, who gave
treatment to the victim at Golden Hospital, Trichy, was examined as
P.W.14. One Dr.Saravanan, who conducted post-mortem, was
examined as P.W.15. One Dr.Anbarasu, who examined the victim at
Ariyalur Government Hospital in the casualty ward was examined as
P.W.16. The Sub-Inspector of Police, who registered the F.I.R., was
examined as P.W.17. The Head Constable, who gave the requisition
letter to the Revenue Divisional Officer and who accepted the organs
after post-mortem for viscera report and who submitted the same for
forensic examination, was examined as P.W.18. The brother of the
third accused, one Velusamy, was examined as P.W.19. The Revenue
Divisional Officer, who conducted the enquiry, was examined as
P.W.20. The Investigating Officer was examined as P.W.21. On behalf
of the prosecution, Exs.P.1 to P.17 were also marked.
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5. Upon being questioned about the material evidence and
incriminating circumstances on record under Section 313 of the
Cr.P.C., the accused denied the same as false. Thereafter, on behalf
of the defence, the Superintendent of the District Head Quarters
Hospital, one Dr.Krishnamurthy, was examined as D.W.1. One
Krishnamurthy, S/o.Kaliyaperumal, who received the telephonic
message from Ariyalur Government Hospital about the fact that the
victim attempted to commit suicide by consuming poisonous leaves,
was examined as D.W.2. One Balamurugan, Grade II Constable, who
received information from the Apollo Hospital about the admission of
the victim, was examined as D.W.3. One Periyanayagam, who is also
related to both sides, was examined as D.W.4. One Umamaheswari,
wife of the fourth accused, Ramachandran, was examined as D.W.5.
One Dhanalakshmi, a neighbour residing near the house of the
accused, was examined as D.W.6. The second accused, Kasinathan,
examined himself as D.W.7. On behalf of the defence, Exs.D.1 to D.8
were also marked.
6. After the closure of evidence on the defence side, the Trial
Court proceeded to hear the learned Special Public Prosecutor on
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behalf of the prosecution and the learned counsel for the accused and
by judgment dated 20.04.2016, considered the evidence on record and
acquitted all the accused in respect of the offence under Section 304B
IPC. The Trial Court also acquitted the second accused, Kasinathan, of
the offence under Section 498A IPC. However, the Trial Court found
A-1 and A-3 to A-5 guilty of the offence under Section 498A IPC. As
far as A-3 is concerned, considering the role played by her and her
conduct and age, she was released under Section 360 Cr.P.C. upon
executing a bond for a sum of Rs.10,000/- along with two sureties. As
far as A-5, Usha, is concerned, she was sentenced to undergo simple
imprisonment for a period of 19 days, which she had already
undergone and was imposed a fine of Rs.5,000/-. As far as the first
accused, Sivakumar, is concerned, he was sentenced to undergo
rigorous imprisonment for a period of two years and was ordered to
pay a fine of Rs.5,000/- and in default of payment of fine, to undergo
simple imprisonment for a period of three months. Accused No.4,
Ramachandran, was sentenced to undergo rigorous imprisonment for a
period of three years and was ordered to pay a fine of Rs.10,000/- and
in default of payment of fine, to undergo simple imprisonment for a
period of three months. Aggrieved by the findings of guilt and
sentence imposed against them, Accused Nos.1 and 4, namely, the
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husband of the victim, Sivakumar and his brother, Ramachandran,
have filed this appeal.
7. Heard Mr.K.Gandhikumar and Ms.A.Nethra, learned counsel
appearing for the appellants/accused and Mr.J.Subbiah, learned
Government Advocate (Crl. Side) on behalf of the prosecution.
8. Commencing the arguments on behalf of the appellants,
Ms.A.Nethra, learned counsel, taking this Court to the evidence on
record, would submit that as far as the fourth accused is concerned,
the allegation against him is that on 16.05.2014, he had come along
with D.W.5, to the victim's mother house and snatched away the child
by physically assaulting the victim as well as P.W.8, mother. In this
regard, she would submit that even as per P.W.8, the persons in the
locality were resisting such illegal forceful attempt made by A-4. But,
however, all the independent witnesses, namely, P.Ws.7 and 10 to 12,
who were examined for the said purpose, turned hostile and did not
support the case of the prosecution. This apart, while the allegation in
the complaint was as if the child was taken away forcefully, P.W.8
herself, in her cross-examination, had stated that even the victim had
told A-4 that the child is sleeping in the cradle and that he himself can
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take the child if he wants and therefore, there is a major contradiction
regarding the said vital aspect of the matter. Secondly, by
examination of all the witnesses, it is established by the defence that
from the beginning, P.W.8, the mother of the victim, was not inclined
to give her daughter in marriage to A-1, who was the sister's son of
P.W.1 and on the other hand, it was her intention to get her daughter
married to her own brother, who is P.W.6. As a matter of fact, the
admissions made by all the relative witnesses, which the learned
counsel took the Court to, would prove the said allegation on behalf of
the defence. Therefore, the version of the defence is that already
when P.W.8 was not in favour of the marriage and when the victim had
come home complaining about her in-laws, she had started picking up
quarrel with her own daughter admonishing her not to send the child
for the birthday function of A-4. In order to prove that there is a
birthday function, even the birth certificate of the child of A-4 is also
marked as a defence document, namely, Ex.D.2. Only because of the
quarrel picked up by P.W.8, unable to withstand the pressure, the
victim had committed suicide. Only because of the said fact, even
when the victim was alive and conscious for a period of four days and
in spite of Ex.D.1 and intimation by all the hospitals to the police
station and in spite of the visits of the police personnel, no statement
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has been recorded from the victim. Had any statement was recorded
from the victim, she would have come out with the truth as to for what
reason she had consumed the poisonous leaves (xLtd;jiH).
Therefore, the non-examination of the victim when she was alive and
conscious for four days clearly raises a grave suspicion on the case of
the prosecution.
9. Secondly, only after the death of the victim, as an after-
thought, the complaint was given. When P.W.20, the Revenue
Divisional Officer, conducted the enquiry, even though all the family
members and the accused were very much present, none were
examined and their statements were recorded by the Revenue
Divisional Officer leading to a unilateral and biased conclusion that
there was demand of dowry by the in-laws and that the suicide
happened only because of demand of dowry. Therefore, the case of
the prosecution was rightly disbelieved by the Trial Court as far as the
offence under Section 304B is concerned.
10. As far as the allegation of cruelty is concerned, since the
incident dated 16.05.2014 relating to the snatching away of the child
has been disproved and since there is no other allegation relating to
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cruelty, the Trial Court ought not to have convicted the appellants for
the offence under Section 498A IPC also and hence, pleaded acquittal.
Learned counsel, Ms.Nethra, would also submit that the entire claim
was an after-thought and when the victim being hyper-sensitive in
nature had committed suicide on account of the pressure meted out to
her by everyone in her family including her own mother, the conviction
of the appellants for the offence under Section 498A IPC is uncalled
for.
11. Per contra, Mr.J.Subbiah, learned Government Advocate (Crl.
Side), opposing the said allegations, would submit that in this case,
P.W.1, the father and the first informant, P.Ws.2 and 3, the sisters,
P.W.8, the mother, all of them have clearly and categorically deposed
about the acts committed by the accused, who are the husband and
other in-laws of the victim. They had clearly and categorically stated
that the accused had tortured her for not bringing enough jewels.
Even though the aspect as to the dowry demand being the reason for
torture soon before the death has been disbelieved by the Trial Court,
still the verbal abuses that she was hailing from a poor family and her
parents are not rich enough, which became the cause for mental
harassment and agony of the victim, cannot be overlooked and the
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Trial Court has rightly taken the said allegations into consideration
while convicting the accused including the appellants.
12. The learned Government Advocate would further submit that
P.W.8 is the eye witness to the incident of snatching of the baby. It
can be seen that the baby was four months old and it cannot be taken
away by the second appellant/Accused No.4 on his own without the
mother for the birthday function. He would further submit that the
Accused No.2, being the Sub-Inspector of Police, and his family
members, behaved in a high-handed manner abusing the victim and
her family, as they were economically poorer than them and unable to
bear the said torture only, the victim had committed suicide. As a
matter of fact, like every other parent, when the victim had consumed
the poisonous leaves (xLtd;jiH) and was battling for her life, even
though was conscious and when she was referred from one hospital to
the other informing them that the condition is serious and has been
referring the victim for treatment to the higher institution, their entire
concentration will only be in saving the life of the victim and they will
not merely run to the police station to give the complaint. It is only in
this context that the complaint was not given and once the victim died,
immediately they lodged the complaint and therefore, this explains the
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non-examination of the victim as well as the delay in lodging the
complaint and that factor should not come in the view of this Court to
doubt the case of the prosecution. Therefore, he would submit that
the Trial Court has rightly considered the case from all perspectives
and had rightly imposed the lenient sentences on Accused No.5 and
even released A-3 on probation of good conduct considering the
allegations against her. Upon considering the seriousness of the
allegations against these two appellants, appropriate sentences have
been imposed, which do not require any interference whatsoever by
this Court.
13. In reply, Mr.Gandhikumar, learned counsel appearing for the
appellants, while summarising and reiterating the arguments made by
the other learned counsel, Ms.Nethra, would draw the attention of this
Court to the cross-examination of P.W.1, the father and P.W.8, the
mother which would clearly demonstrate the equations in the family.
He would once again submit that when there is discrepancy between
the evidence on record and the original complaint regarding the
manner in which the child was alleged to have been snatched away,
the second appellant is entitled for benefit of doubt. He would submit
that the child is now ten years old and is now being brought up only by
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the first accused and is currently studying 4th standard in Sabarmathi
Vidhyalaya Public School, Ariyalur. He would submit that as a matter
of fact, on the day of the said incident, i.e., 16.05.2014, admittedly
the first accused was in Chennai and is no way in any manner directly
or indirectly responsible for the victim committing suicide. He would
further submit that even the other allegations of cruelty of verbal
abuse is not substantiated by the prosecution and would, therefore,
submit that the first accused also is entitled for the benefit of doubt.
14. I have considered the rival submissions made on either side
and perused the material records of the case. Firstly, as far as the
offence under Section 304B IPC is concerned, the Trial Court itself had
acquitted all the accused. Therefore, we are now concerned in respect
of the appeals filed by Accused Nos.1 and 4 in respect of their
conviction and sentence imposed for the offence under Section 498A
IPC.
15. On a cumulative reading of the entire evidence on record, it
can be seen that there are three sets of allegations, which would
amount to cruelty within the definition of Section 498A IPC. The first
set of allegation is the demand of dowry as such. The second set of
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allegation is that the victim was constantly ill-treated and abused by
the family members of the accused and was constantly made to go
back to her parental home. She was also even physically tortured and
verbally abused and was very much unable to withstand the said
behaviour on the part of her in-laws and especially, when the first
accused being the husband did nothing to protect her and give comfort
to her in the house. The third set of allegation is that on the day of
occurrence, i.e., 16.05.2014, for the purpose of celebrating the
birthday function or otherwise, the child was forcefully taken away by
A-4 in the company of D.W.5 which triggered the victim to consume
poisonous leaves.
16. As far as the first set of allegation is concerned, it can be
seen that the family of the victim was financially lesser than her in-
laws' house. As a matter of fact, the evidence on record being the
evidence of the relatives clearly adumbrates that it was the intention
of A-3, Rukkumani, that she will make her own own brother's daughter
as her daughter-in-law so that she will be taken good care of. This
apart, either in connection with the marriage or thereafter, there is no
evidence clearly bringing on record that there was any demand for
dowry and as a matter of fact, the Trial Court itself had disbelieved the
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said allegations and consequently, had acquitted the accused in
respect of the offence under Section 304B IPC. Therefore, the first set
of allegations has no legs to stand.
17. As far as the third set of allegations regarding the incident of
forcefully taking away the child by even throwing a stone on P.W.8 is
concerned, except P.W.8, the other independent witnesses who are
supposed to have witnessed the incident and were examined as
witnesses by the prosecution, namely, P.Ws.7 and 10 to 12, all turned
hostile and did not support the case of the prosecution. Even
otherwise, from the very evidence of P.W.8 herself that her daughter
told Accused No.4 to take the child by himself from the cradle would
also throw a considerable doubt on the version of P.W.8. This apart, a
cumulative reading of the defence witnesses and that of the
prosecution, raises a suspicion whether the theory of the prosecution
that the victim never wanted the child to be taken for the birthday
function is correct or not or whether she also wanted to go but was
admonished from her parents side. There is a needle of doubt in this
regard and therefore, once there is a slightest suspicion with regard to
the manner in which the incident happened, especially when all the
independent witnesses have turned hostile, as far as this set of
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allegations is concerned, this Court has no other option than to give
the benefit of doubt to the accused. But, however, as regards the
other set of allegations that the victim was constantly subjected to
verbal abuse and that she used to go to her parents' house unable to
bear the verbal abuses, those allegations are fortified by the statement
of P.Ws.1 to 3 who are the family members of the victim. As a matter
of fact, even from the evidence of D.W.5, the fact that the victim was
in her parents house even as on the date of her consuming poisonous
leaves is fortified. Therefore, as a husband, it is incumbent upon A-1
not to have indulged in those kinds of mental torture and cruelty and
also the failure to protect the victim who had come to live in his family
only believing him, the allegation regarding the abuse and mental
torture stands proved as far as Accused No.1 is concerned. However,
as far as Accused No.4 is concerned, except for snatching away the
child, there is no other allegation regarding the abuse on his part.
18. In view of my above findings, the finding of guilt in respect
of the offence under Section 498A IPC in respect of the first accused,
Sivakumar, is upheld with reference to the allegation of verbal abuse
and ill-treatment. The finding of guilt in respect of the offence under
Section 498A IPC in respect of the fourth accused, Ramachandran, is
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reversed and he is acquitted of the offence under Section 498A IPC
also.
19. Now, coming to the quantum of sentence, even though in
this case unfortunately the victim had died, this Court is able to see
that the first accused Sivakumar was arrested and was in jail for a
period of 65 days. He is also now bringing up the child born out of the
wedlock who is now studying 4th standard in a private school as
narrated above. This Court also takes into consideration that the
death had happened four months after the delivery of the child and
that the victim was sensitive and on the day of the incident, the first
accused was away in Chennai. Further, there is also evidence on
record that after hearing about the committing of suicide by the victim,
all visited the victim while she was undergoing treatment in the
hospitals. Under such peculiar circumstances and conspectus of facts,
I am inclined to reduce the substantive sentence imposed by the Trial
Court against the first accused from rigorous imprisonment for a
period of two years to that of the period already undergone. The fine
amount shall remain the same.
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20. In the result, the Criminal Appeal is partly allowed, acquitting
Ramachandran, the second appellant/A-4 of the offence under Section
498A IPC and while confirming the conviction of Sivakumar, the first
appellant/A-1 for the offence under Section 498A IPC, the substantive
sentence of rigorous imprisonment for a period of two years is reduced
to the period already undergone by the first appellant/A-1. The fine
amount imposed on the first appellant is confirmed. The second
Appellant/Accused No.4, shall be entitled for refund of fine amount, if
any, paid by him.
26.04.2023
Index : Yes
Speaking
sra
To
1. The Judge, Fast Track Mahila Court,
Ariyalur.
2. The Public Prosecutor, Madras High Court,
Chennai.
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Crl.A.No.358 of 2016
D.Bharatha Chakravarthy, J.
(sra)
Crl.A.No.358 of 2016
26.04.2023
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