Madras High Court
Vasuki @ Vasini vs The Deputy Superintendent Of ... on 8 June, 2023
CRL.A.(MD).Nos.259 & 371 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.06.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.A.(MD).Nos.259 & 371 of 2016
1.Crl.A(MD)No.259 of 2016:-
Vasuki @ Vasini ... Appellant/Accused No.2
Vs.
The Deputy Superintendent of Police,
Thuckalay Police Station,
Kanyakumari District.
Thuckalay.
(Crime No.440 of 2009). ... Respondent/Complainant
PRAYER : Criminal Appeal filed under Section 374(2) of Cr.P.C to set
aside the Judgment passed in S.C.No.23 of 2010 on the file of the
Mahila Fast Track Court, Kanyakumari Division at Nagercoil, dated
02.07.2016.
For Appellant : Mr.P.T.Ramesh Raja
for Mr.T.Arul
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
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CRL.A.(MD).Nos.259 & 371 of 2016
2.Crl.A(MD)No.371 of 2016:-
M.Ramesh ... Appellant/Accused No.1
Vs.
The Deputy Superintendent of Police,
Thuckalay Police Station,
Kanyakumari District.
Thuckalay.
(Crime No.440 of 2009). ... Respondent/Complainant
PRAYER : Criminal Appeal filed under Section 374(2) of Cr.P.C to set
aside the Judgment passed in S.C.No.23 of 2010 on the file of the
Mahila Fast Track Court, Kanyakumari Division at Nagercoil, dated
02.07.2016.
For Appellant : Mr.P.T.Ramesh Raja
for Mr.T.Arul
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
COMMON JUDGMENT
These appeals have been filed to set aside the common
Judgment passed in S.C.No.23 of 2010 on the file of the Mahila Fast
Track Court, Kanyakumari Division at Nagercoil, dated 02.07.2016.
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2.Both the appeals, arising out of the single trial, were
taken up together and disposed of by common Judgment.
3.The case of the prosecution is that on 22.06.2009 at
about 07.00 a.m., when the deceased was not coming out of the
house to purchase milk as usual, P.W.7 searched in and around her
house and did not find her. Therefore, she informed to P.W.1, who
was the Vice President of the Village Panchayat and they searched
her. Thereafter, they found that the deceased committed suicide by
hanging herself inside the house. The house was locked inside.
Immediately, P.W.1 informed to the police and the respondent
registered the F.I.R.
4.On the complaint lodged by P.W.1, the respondent
registered the F.I.R in Crime No.440 of 2009 for the offence under
Section 174 of Cr.P.C. Thereafter, altered the offence into under
Section 406, 498(A) and 304(b)(2) of I.P.C and Section 3 and 4 of
Dowry Prohibition Act. After completion of the investigation, the
respondent filed a final report and the same has been taken
cognizance by the trial Court.
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CRL.A.(MD).Nos.259 & 371 of 2016
5.In order to bring the charges to home, the prosecution
had examined P.W.1 to P.W.22 and marked Ex.P.1 to Ex.P.12. The
prosecution also produced material objects M.O.1 to M.O.9 and on
the side of the accused, no one was examined and no documents
were exhibited.
6.On perusal of the oral and documentary evidence, the
trial Court found the accused guilty for the offences under Sections
406, 498(A) and 304(b)(2) of I.P.C and also under Sections 3 and 4
of the Dowry Prohibition Act. Both the accused were sentenced to
undergo five years Rigorous Imprisonment each and to pay a fine of
Rs.20,000/- each and in default to undergo six months Simple
Imprisonment each for the offence punishable under Section 3 of
the Dowry Prohibition Act; the accused were sentenced to undergo
two years Simple Imprisonment each and to pay a fine of Rs.
10,000/- each and in default to undergo three months Simple
Imprisonment each for the offence punishable under Section 4 of
the Dowry Prohibition Act; the accused were sentenced to undergo
three years Rigorous Imprisonment each and to pay a fine of Rs.
20,000/- each and in default to undergo three months Simple
Imprisonment each for the offence punishable under Section 406 of
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CRL.A.(MD).Nos.259 & 371 of 2016
I.P.C; the accused were sentenced to undergo three years Rigorous
Imprisonment each and to pay a fine of Rs.20,000/- each and in
default to undergo three months Simple Imprisonment each for the
offence punishable under Section 498(A) of I.P.C and the accused
were sentenced to undergo ten years Rigorous Imprisonment each
and to pay a fine of Rs.30,000/- each and in default to undergo
1-1/2 years Rigorous Imprisonment each for the offence punishable
under Section 304(b) of I.P.C. The sentences shall run concurrently.
Aggrieved by the same, the appellants preferred these appeals.
7.The learned counsel appearing for the appellants
would submit that the prosecution failed to prove its case beyond
any doubt in order to attract any of the charges. P.W.7, who is the
neighbour of the deceased, had informed to P.W.1 about the not
known of the deceased since the deceased used to come to
purchase milk at about 06.00 a.m. On the date of occurrence, she
did not come out and as such, she searched for and informed to
P.W.1. When P.W.1 inspected the house of the deceased, he found
that she had committed suicide by hanging herself. The house was
also locked inside. The first accused was not present at that
juncture. Both the first accused nor the deceased did not even
whisper about any dispute between them with regard to any
demand of dowry or cruelty. The deceased never informed any
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dowry harassment or cruelty to P.W.7, who is the friend of the
deceased. In fact, till the burial of the deceased, the family
members of the deceased did not even whisper about any allegation
with regard to harassment, cruelty or dowry demand. P.W.1, who
was the Vice President of the Village, at the juncture, lodged the
complaint and the same was registered under Section 174 of Cr.P.C.
Only on receipt of the report submitted by the Revenue Divisional
Officer, the respondent altered the offences, as if the deceased
committed suicide only because of dowry harassment.
8.The learned counsel appearing for the appellants
further submitted that the mother of the deceased was examined as
P.W.2. She categorically admitted in the cross-examination that the
entire expenditure of the marriage was borne out by the first
accused. When the deceased asked for jewels during their marriage,
P.W.2 did not present any jewels as presented to the elder sister of
the deceased. He further submitted that in the chief examination of
P.W.2, she deposed that only after the sale of the immovable
property, she presented jewels weighing 15 sovereigns of jewels
and cash, whereas the marriage was held on 10.11.2008, whereas
the property was sold by her husband only on 05.02.2009. That
apart, there was no evidence to the effect that they received an
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CRL.A.(MD).Nos.259 & 371 of 2016
advance amount for the sale of the property. Therefore, there was
absolutely no chance to present any jewels after selling the property
from the sale consideration of the selling of the property. He further
submitted that the pregnancy of the deceased was aborted only for
the reason of no growth of the embryo and no heartbeat in the
foetus. Therefore, the Doctor certified the abortion as a ‘missed
abortion’. It was not happened due to any other reason, such as,
the first accused had kicked the deceased on her stomach. The
elder sister of the deceased was examined as P.W.3. Her husband
used to visit the house of the deceased in a drunken mood and used
to show some obscene photographs. Due to the said torture, she
committed suicide. In fact, on the date of occurrence, no one was
there in the house. The first accused had gone for his daily painting
work. The second accused is residing somewhere else and not in the
matrimonial house of the deceased. He further submitted that soon
before her death, there was absolutely no dowry harassment made
by the accused in order to commit suicide of the deceased. The
alleged pledging of the jewel also stands in the name of the second
accused. It does not mean that the jewels which were presented
during the marriage were mortgaged by the first accused.
Therefore, the prosecution failed to prove any of the charges and
even then, the trial Court mechanically convicted the appellants and
hence, prayed for acquittal of the appellants.
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CRL.A.(MD).Nos.259 & 371 of 2016
9.Per contra, the learned Additional Public Prosecutor
appearing for the respondent would submit that the Revenue
Divisional Officer conducted a detailed enquiry and submitted his
report, which was marked as Ex.P.8. The Revenue Divisional Officer
was examined as P.W.22. Accordingly, he concluded that the
deceased committed suicide only for the reason dowry demand and
harassment made by the appellants. Initially, the F.I.R was
registered under Section 174 of Cr.P.C and on receipt of the report
from the Revenue Divisional Officer, the respondent altered the F.I.R
into Section 498(A) and 304(b) of I.P.C. After completion of the
investigation, the respondent filed a final report for the offences
under Sections 406, 498(A) and 304(b)(2) of I.P.C and also under
Sections 3 and 4 of the Dowry Prohibition Act. The mother of the
deceased was examined as P.W.2. She categorically deposed that
the deceased came to the parent's house very often and complained
with regard to the harassment of the appellants in order to bring a
huge dowry. The private finance officer was also examined as P.W.
14 and P.W.15 and proved the jewels pledged by the appellants
herein.
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10.The learned Additional Public Prosecutor further
submitted that even from the date of marriage, there was
harassment and cruelty committed by the appellants and as such,
the offence under Section 498(A) of I.P.C is categorically proved by
the prosecution. The jewels which were entrusted to the appellants
were pledged by them and thereby committed the offence under
Section 406 of I.P.C. On the date of occurrence, only because of
dowry harassment, the deceased committed suicide by hanging
herself and as such, the offence under Section 304(b) of I.P.C is also
clearly attracted against the appellants. Even before marriage and
after marriage, there was a demand of dowry by the appellants.
Therefore, the trial Court rightly convicted the appellants and it does
not warrant any interference.
11.Heard the learned counsel appearing on either side
and perused the materials available on record.
12.The marriage was held between the first accused and
the deceased on 10.11.2008. The first accused was a painter at the
time of marriage, and the second accused was the elder sister of
the first accused. She got married and she is living separately. On
22.06.2009, when P.W.7, who is none other than the neighbour of
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the deceased, found that the deceased did not come out from the
house to purchase milk, since the deceased used to come out of the
house at about 06.00 a.m., to purchase milk, therefore, P.W.7
informed about the same to P.W.1, who was the Vice President of
the Village at that time. Immediately, P.W.1 visited the house of the
deceased and found that she was hanging inside the house. The
house was locked inside and, thereafter, found that she committed
suicide by hanging herself. Admittedly, the appellants were not in
the house. The first accused went for his painting work. Thereafter,
post-mortem was conducted and buried the body of the deceased
by both the family members. Till the burial of the body, there was
no complaint by the deceased family members. Only after receipt of
the report from the Revenue Divisional Officer, the respondent
altered the offence that too only for the offence under Section
498(A) and 304(b) of I.P.C. However, after investigation, the
respondent filed a final report for the offences under Sections 406,
498(A) and 304(b)(2) of I.P.C and also under Sections 3 and 4 of
the Dowry Prohibition Act.
13.The report of the Revenue Divisional Officer was
marked as Ex.P.8. It revealed that the reason for committing suicide
by the deceased is dowry harassment. Further, concluded that the
first accused, under the influence of alcohol, demanded to give Thali
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chain and as such, she might have committed suicide. Therefore,
there is no conclusive proof that the first accused demanded Thali
chain soon before she committed suicide. The mother of the
deceased was examined as P.W.2 and the elder sister of the
deceased was examined as P.W.3. P.W.2 deposed that during the
marriage, her daughter was presented 15 sovereigns of jewels and
Rs.75,000/- cash along with household articles through selling 10
cents of land. Immediately, after one week from the date of
marriage, the jewels were sold out by the appellants. Thereafter,
they had beaten the deceased in order to bring more dowry. It was
informed by the deceased to P.W.2 and she was consoled by P.W.2
and sent back to her matrimonial home. Thereafter, she also got
pregnant and due to dowry demand and kicked by the first accused
on her stomach, she had got aborted her pregnancy. Due to
continuous humiliation and demand of dowry, she committed suicide
by hanging herself. Whereas, during the cross-examination, she
categorically deposed that the deceased asked for jewels during her
marriage, as the jewels presented to P.W.3 weighing 20 sovereigns.
However, P.W.2 said that, that much of the jewel is not possible to
present her marriage. Thereafter, the deceased also did not compel
P.W.2 to present the jewels. There is absolutely no whisper about
the demand made by the appellants before marriage or even after
marriage. P.W.7, who is the neighbour of the deceased, also
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deposed that the deceased was never informed of any cruelty or
dowry harassment made by the appellants till her suicide. P.W.1 and
P.W.7 categorically deposed that the first accused and deceased
were living happily without any issues. There is absolutely no
evidence to show that soon before her death, there was dowry
harassment made by the appellants. In order to prove the charge
under Section 304-B of I.P.C there must be dowry harassment soon
before her death. It is relevant to extract the provision under
Section 304-B of I.P.C hereunder:-
“[304B. Dowry death.—(1) Where the death of a
woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown
that soon before her death she was subjected to
cruelty or harassment by her husband or any
relative of her husband for, or in connection with,
any demand for dowry, such death shall be called
“dowry death”, and such husband or relative shall
be deemed to have caused her death. Explanation.
—For the purposes of this sub-section, “dowry” shall
have the same meaning as in section 2 of the
Dowry Prohibition Act, 1961 (28 of 1961).
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(2) Whoever commits dowry death shall be
punished with imprisonment for a term which shall
not be less than seven years but which may extend
to imprisonment for life.]”
14.The postulates needed to establish the offence under
Section 304-B of I.P.C are:
“(i) The death of a wife should have
occurred within 7 years of her marriage.
(ii) soon before her death, she should have
been subjected to cruelty or harassment by the
accused in connection with the demand of dowry.”
15.It is the duty of the prosecution to discharge the
initial burden to satisfy these two ingredients to attract the offence
under Section 304-B of I.P.C. If the prosecution proved the
discharged initial burden, then the burden shifts onto the shoulder
of the accused to rebut the evidence to prove his innocence.
16.In the case on hand, the prosecution failed to
discharge its initial burden that soon before the death of the
deceased, she was subjected to cruelty or harassment in connection
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with any demand of dowry by the accused persons. Thus, it is clear
that there is absolutely no evidence produced by the prosecution in
order to prove the charge under Section 304-B of I.P.C as against
the appellants.
17.Insofar as the offences under Sections 3 and 4 of the
Dowry Prohibition Act, the prosecution did not produce any evidence
to attract those offences. P.W.1 and P.W.7 did not even whisper
about the dowry demand even before marriage or after marriage,
who are closely associated with the deceased. In fact, P.W.2
deposed that the entire marriage expenditure was borne out by the
first accused and did not even whisper about any dowry demand
even before marriage or after marriage. If at all, there was demand
before marriage or after marriage and any cruelty made to the
deceased, they would have lodged a complaint. Even according to
P.W.2 only because of the kicking of the first accused, the pregnancy
of the deceased got aborted. If so, definitely, P.W.2 would have
lodged the complaint. Admittedly, there was no complaint till the
deceased committed suicide. In fact, even till the burial of the
deceased body, there was no complaint, and they did not even
whisper before any police officer or to the general public. The
deceased body was also buried inside the house of the first accused.
If at all any dowry harassment or other cruelty, definitely they
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would not have permitted to bury the deceased body inside the
house of the first accused. Thus, it is clear that the entire evidence
deposed by P.W.2 and P.W.3 is nothing but after thought in order to
put the appellants behind the bar. Further, perusal of the Post
Mortem report revealed that except the neck injury due to hanging,
no other external injury was found on the body of the deceased.
The cause of the death opined only due to hanging. The
examination of viscera for poison is also negatived. Therefore, the
prosecution failed to prove the charges under Sections 3 and 4 of
the Dowry Prohibition Act.
18.Insofar as pledging the jewels are concerned, the
prosecution had examined P.W.14 and P.W.15. They deposed that
some jewels were pledged in the name of the second accused by
the first accused. It does not mean that the jewels which were
allegedly presented at the time of marriage were pledged by the
first accused. In fact, according to P.W.2, the jewels which were
presented during the marriage was sold out by the first accused.
Therefore, there is no evidence to prove that during the marriage of
the deceased, the jewels were presented by P.W.2. Therefore, the
prosecution failed to prove the charge under Section 406 of I.P.C.
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19.Further, the deceased got pregnant after their
marriage. Unfortunately, her pregnancy was aborted due to missed
abortion. It had happened due to no growth of the embryo and no
heartbeat found in the foetus. The Doctor who treated the deceased
advised her to abort her pregnancy and was examined as P.W.16.
She had given a certificate which was marked as Ex.P.6 and
revealed that the deceased was admitted in the hospital on
09.03.2009 with the complaint of amenorrhea and bleeding per
vagina. During the ultrasound scan, it showed features of missed
abortion. Therefore, there is no evidence to show that only on the
kicking by the first accused, the pregnancy of the deceased got
aborted. That apart, there was no complaint even till her death
about any cruelty committed by the appellants. Therefore, the
prosecution also failed to prove the charge under Section 498A of
I.P.C.
20.In view of the above, the entire conviction under
Sections 406, 498(A) and 304(b)(2) of I.P.C and also under Sections
3 and 4 of the Dowry Prohibition Act as against the appellants
cannot be sustained and they are liable to be acquitted from all the
charges. Hence, the conviction and sentence imposed by the Courts
below are liable to be set aside.
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21.Accordingly, the Judgment made in S.C.No.23 of
2010 dated 02.07.2016, on the file of the Mahila Fast Track Court,
Kanyakumari Division at Nagercoil, is set aside and the Criminal
Appeals are allowed. The appellants are acquitted. Bail bond if any
executed by the appellants shall stand cancelled and a fine amount
if paid is ordered to be refunded to the appellants forthwith.
08.06.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
To
1.The Mahila Fast Track Court,
Kanyakumari Division at Nagercoil.
2.The Deputy Superintendent of Police,
Thuckalay Police Station,
Kanyakumari District.
Thuckalay.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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CRL.A.(MD).Nos.259 & 371 of 2016
G.K.ILANTHIRAIYAN, J.
ps
CRL.A.(MD).Nos.259 & 371 of 2016
08.06.2023
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