Madras High Court
Ravi Kumar vs State Rep. By on 10 March, 2023
Crl.A.No.115 of 2016
IN THE HIGH COURT OF JUDICIATURE AT MADRAS
DATED: 10.03.2023
CORAM :
THE HONOURABLE MR.JUSTICE M. NIRMAL KUMAR
Crl.A.No.115 of 2016
Ravi Kumar ... Appellant/2nd Accused
versus
State rep. by
The Inspector of Police,
Thalaivasal Police Station,
Salem District. ... Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) of the Code of Criminal
Procedure, to call for the records in S.C.No.58 of 2012, on the file of Session
Judge, Mahila Court, Salem and set aside the judgment dated 05.01.2016 passed
by the learned Session Judge, Mahila Court, Salem and allow the Criminal
Appeal.
For Appellant : Ms.P.Kavitha Balakrishnan
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
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Crl.A.No.115 of 2016
JUDGMENT
The present Criminal Appeal has been filed by the appellant to set
aside the judgment of conviction and sentence passed by the learned Session
Judge, Mahila Court, Salem dated 05.01.2016 in S.C.No.58 of 2012.
2. The appellant/A2 along with his mother/A1 were convicted by the
trial Court in S.C.No.58 of 2012 by judgment dated 05.01.2016. The appellant
and his mother were convicted and sentenced to undergo three years Rigorous
Imprisonment for offence under Section 498-A and to pay a fine of Rs.2,000/-,
in default, to undergo three months Simple Imprisonment and seven years
Rigorous Imprisonment for offence under Section 304(b) of I.P.C. and both
sentences directed to be run concurrently. Aggrieved against the same, the
above appeal has been filed.
3. During trial on the side of the prosecution 19 witnesses examined
as P.W.1 to P.W.19 and marked Exs.P1 to P13. No material objects Marked. On
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Crl.A.No.115 of 2016
the side of the defence no witnesses examined but Exs.D1 to D3 marked. No
material objects marked.
4. The gist of the case is that the appellant had married one Gowri,
D/o.Shanmugam (P.W.1) on 11.06.2009 which was an arranged marriage. For
the marriage there was a demand of 30 sovereigns of gold jewels, car and house
hold articles. The family of the bride agreed to give 25 sovereigns of gold, Hero
Splendor motor bike and house hold articles during marriage and assured to
present a car later. After marriage, only for two months they were happy and
thereafter both appellant and his mother demanded for dowry and continuously
Gowri was harassed. Further she was abused for not bearing any child. The
appellant and his mother regularly used to abuse her stating that if the appellant
married anybody else he would have got more dowry and led a happy married
life. Unable to bear any further abuse, 20 days prior to 02.01.2011 she left the
matrimonial home and went to her parents house.
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Crl.A.No.115 of 2016
4.1. When she was staying there, on 02.01.2011 at about 1.30 p.m. she
went to the field and consumed pesticide, namely, Monocrotophos. Thereafter
she returned home with tears, which was noticed by P.W.8. When P.W.8
enquired her, she disclosed that due to the harassment and cruelty subjected to
by the appellant and her mother she had taken extreme step and consumed
poison. Immediately P.W.8 called P.W.7, his cousin. Both went to P.W.1's
house, took a bike, in the meanwhile, called an ambulance. Thereafter P.W.7
and P.W.8 brought the bike and took Gowri in the bike to Attur Government
Hospital. In the meanwhile, ambulance came, she was taken to the hospital
where she was declared as brought dead. P.W.8 informed P.W.1, who had gone
with his wife to meet his elder daughter at Namakkal. Thereafter he rushed back
to the Attur Government hospital and found his daughter laid in the mortuary.
Thereafter he went to the Thalaivasal Police Station, lodged a complaint and a
case in Crime No.4 of 2011 under Section 174 Cr.P.C. was registered by
P.W.17.
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Crl.A.No.115 of 2016
4.2. P.W.17 finding that the death occurred within a period of 7 years
from the date of marriage, he forwarded the F.I.R. to Revenue Divisional
Officer, Attur/P.W.13 and to the Deputy Superintendent of Police/P.W.18.
P.W.13 conducted inquest, recorded the statement of witnesses and submitted
his inquest report/Ex.P6 and final report/Ex.P7. P.W.18/Deputy Superintendent
of Police on receipt of the complaint visited the scene of occurrence, prepared
observation mahazar, rough sketch and seized 50 mgs. of pesticide
Monocrotophos bottle. Thereafter altered the section from 174 Cr.P.C. to 498-A
and 304(b) I.P.C. In the meanwhile, he was transferred. On his transfer P.W.19
took up investigation, examined the witnesses. He found no change in the
statement by the witnesses, hence no further statements were recorded.
Thereafter on collecting the Forensic report, Medical report and Post-mortem
report filed the charge sheet. In the meanwhile, both the accused obtained
anticipatory bail in this case. They were enquired and finally charge sheet filed
in this case for offence under Section 498A, 304(b) and Section 4 of the Dowry
Prohibition Act. The trial Court framed charges against the appellant and other
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Crl.A.No.115 of 2016
accused under Section 498A and 304(b) I.P.C. During trial, on the side of the
prosecution, P.W.1 to P.W.19 examined, Exs.P1 to P13 marked and on the side
of the defence Exs.D1 to D3 marked. On the evidence and materials, the trial
Court convicted the appellant and his mother as stated above.
5. The contention of the learned counsel for the appellant is that in
this case the marriage between the appellant and deceased Gowri took place on
11.06.2009. It was an arranged marriage. Both the families knew to each other
for quite some time and they were aware about the financial and social status of
each other. In such circumstances the demand of dowry does not arise. From the
complaint as well as from the statement of P.W.1 it is seen that the articles
which were presented during the marriage were all by way of Sreedhana and not
as a dowry. Further submitted that the deceased Gowri consumed pesticide
poison when she was staying at her parents house which is more than 10 kms
from her matrimonial home. It is the admitted case of the prosecution that 20
days prior to 02.01.2011 the deceased left the matrimonial home on her own and
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Crl.A.No.115 of 2016
she was staying with her parents. The deceased leaving matrimonial home was
witnessed by P.W.6., and he states that the deceased Gowri along with her aunt
Jeyam came to the bus stand, on enquiry, he was informed that due to some
misunderstanding said Gowri is taken to her parental home. P.W.6 confirms that
there was no demand of any dowry during engagement, marriage or after the
marriage. This witness was examined and cross examined on 25.06.2013 more
than one and half years and later he was recalled by the prosecution for the
purpose of treating him as hostile is impermissible. Before treating a person as
hostile the prior statement attention to be drawn and put to the witness thereafter
only after getting permission, witnesses can be treated hostile and cross
examined. In this case it is not done so. Hence, evidence recorded on
25.06.2013 alone to be considered. Further submitted that in this case P.W.1 is
the father of the deceased. P.W.2 is the junior father of the deceased. P.W.3 is
the brother of the deceased and P.W.4 is the wife of P.W.3. All these witnesses
are from the same family gave bald and omnibus version that there was demand
of dowry, harassment and cruelty due to which Gowri consumed poison and
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Crl.A.No.115 of 2016
ended her life.
6. P.W.8 was informed about harassment and cruelty only through his
mother Jeyam. In this case, the said Jeyam not examined as witness. Hence,
PW8's statement is in the nature of hearsay, which cannot be considered. The
other witness P.W.12/Post-mortem Doctor confirms that the death is due to
poisoning by pesticide and the presence of Monocrotophos has been proved.
P.W.13/R.D.O’s inquest report/Ex.P6 and his final report/Ex.P7 confirm that
Gowri consumed poison and she committed suicide. PW13/RDO examined
P.W.1, father of Gowri and his statement alone recorded, the report is
comprehensive one. No other relatives of Gowri or from the appellant's
examined. P.W.13 in his report/Ex.P7 confirms that Gowri consumed pesticide
and committed suicide. In his report he further records all jewels, motor bike
and other house hold articles which was presented
during the marriage have been returned to Gowri’s family but strangely gives a
finding that there was demand of dowry.
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Crl.A.No.115 of 2016
7. Learned counsel further submitted that R.D.O. admits that he
received Ex.D1/complaint of the appellant who had given a detailed explanation
and sequence of events. Further submitted that the investigating officer failed to
consider the appellant’s earlier complaint dated 18.12.2010 wherein he had
complained that Gowri was forcibly taken by her aunt Jeyam. The Hero
Splendor Motor Bike which was presented during the marriage stands in the
name of P.W.1 and not of the appellant. Thus there is no proximity or reason to
link the appellant for the independent act of Gowri in consuming the poison.
The appellant has got three elder brothers. First elder brother is a Doctor, second
elder brother is an Engineer in NLC and third elder brother is a professor. The
appellant is only a diploma holder and he helped his elder brother in his nursing
home. After the marriage his wife and family members forced the appellant to
leave the job, come to native and to live with him and carry on with the
agricultural activities in his family lands. Acceding to the request the appellant
came to his native at Kattukottai and he was exclusively given two acres of land
to carry on his independent agricultural activities, the rest of the family land was
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managed by the appellant’s mother by employing agricultural coolies. There
was some altercation and dispute due to which the said Jeyam had taken Gowri
to her parental house. 20 days thereafter what happened the appellant was not
aware. Hence, the appellant is falsely implicated in this case and he prayed for
acquittal.
8. Learned Additional Public Prosecutor submitted that in this case on
the complaint of P.W.1/father of the deceased Gowri, a case under Section 174
Cr.P.C. was registered. Thereafter during investigation the case was altered to
offence under Sections 498A, 304(b) I.P.C. Finding that the death has taken
place within 7 years of the marriage, complaint, F.I.R. were forwarded to
R.D.O. as well as to the Deputy Superintendent of Police for investigation.
P.W.13 is the R.D.O. and P.W.18 and P.W.19 are the Deputy Superintendents
of Police, who conducted investigation in this case. The marriage between the
appellant and said Gowri had taken place on 11.06.2009 which is an arranged
marriage. After marriage, only for two months they were happy thereafter there
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Crl.A.No.115 of 2016
have been constant demand for dowry and she was harassed and subjected to
cruelty. Due to which, Gowri frequently visited her parents house, she was
pacified and advised to join her husband. 20 days prior to 02.01.2011 unable to
bear any further harassment she left the matrimonial home and came to her
parents house and was staying with them. She was constantly abused for not
bearing any child. This lead Gowri to consume pesticide poison and end her life.
The cause and reason for her harassment by the appellant and his mother are
clearly spoken by P.W.1, P.W.2, P.W.3, P.W.4, P.W7, P.W.8 and P.W.10. She
complained about the demand of dowry and harassment to her family members
periodically. The family members decided that during Pongal when family
members get together the issue could be resolved but unable to bear any further
harassment and cruelty she consumed pesticide which is confirmed by the
Forensic Report/Ex.P5.
8.1. The post-mortem Doctor/P.W.12 in his report/Ex.P4 has given
opinion that the deceased appeared to have died due to poisoning
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Crl.A.No.115 of 2016
(Monocrotophos pesticide). The presence of Monocrotophos is found in the
stomach, intestine, liver, kidney. Further the intestine has been damaged and
there is a seepage of blood. P.W.13/R.D.O. conducted inquest, examined the
witnesses, recorded their statement and submitted his reports/Exs.P6 and P7.
From the reports it is confirmed that there was demand of dowry and the death
was due to drinking of poison. He further submitted that Ex.D1 is a created
document as an afterthought for the purpose to shield the misdeeds of the
appellant. As regards Exs.D2 and D3 there is no correlation between Exs.D2
and D3. In any event in this case the death occurred within 7 years of marriage
and it was only due to the harassment and cruelty at the hands of the appellant
and his mother. The prosecution proved the case. The appellant has neither
given reasonable explanation by way of cross examination nor produced any
witnesses or materials to probabilize his defence. The appellant failed to
dislodge the statutory presumption. The trial Court rightly convicted the
appellant and other accused. In this case, the appellant's mother/A1 passed
away during the pendency of appeal in Crl.A.No.31 of 2016. Hence, prayed for
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Crl.A.No.115 of 2016
dismissal of the appeal.
9. Considering the submissions and on a perusal of material it is not in
dispute that the marriage between the appellant and Gowri took place on
11.06.2009. It is an arranged marriage. Both the families knew each other and
aware about the financial and social status of both families. The appellant’s
brothers are well placed. The appellant is the 4th son, who is less educated in the
family. Prior to marriage, he was employed in his brother’s nursing home. After
the marriage he along with his mother and his wife Gowri settled in Kattukottai
on the compulsion of his in-laws, where appellant’s family were holding around
4 acres of land of which 2 acres of land was exclusively given to the appellant to
have his agricultural activities which was managed by both appellant and his
wife, the marriage life was smooth for some months and thereafter there have
been constant misunderstanding. Gowri’s parents house is 10 km away from her
matrimonial home and she used to visit her parents house often and stay there
and later come back and join the appellant. Likewise 20 days prior to
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02.01.2011 she left the matrimonial home, which happened during this period in
the parental house, is not known.
10. P.W.6 confirms that Gowri along with her aunt Jeyam were
standing in the bus stop, when he enquired, they informed about
misunderstanding and fight in the matrimonial home of Gowri. Thereafter
Gowri started to live with her parents. Gowri living with her parents is not
disputed. P.W.7 and P.W.8, cousin brothers of Gowri confirm that on
02.01.2011 at about 1.30 p.m. they saw Gowri crying and coming from the
field. When enquired, Gowri informed that due to the constant dowry demand
by the appellant and his mother she left the matrimonial home, unable to bear
any further abuse she consumed poison. Immediately they rushed Gowri to the
hospital but unfortunately she passed away even before reaching the hospital.
P.W.12/Post-mortem Doctor confirms that death was due to drinking of
pesticide and poisoning. Ex.P4 is the Post-mortem certificate. P.W.16-
Scientific Officer attached to the Forensic Lab in his report/Ex.P5 confirms the
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Crl.A.No.115 of 2016
presence of Monocrotophos poisonous pesticide. In this case admittedly the
occurrence had taken place in the parental house of the deceased Gowri and that
too 20 days after she left the matrimonial home. There is no evidence in any
manner to show that during this period, the appellant or his mother had abused,
caused harassment or had contacted Gowri, which aggravated the situation
thereby abetting the Gowri to take the extreme step of consuming poison.
11. P.W.7 and P.W.8 are projected as witnesses, who last spoke to the
deceased after Gowri consumed poison and to whom the deceased gave reason
for consuming poison. Their statements are with contradictions. P.W.8 admits
that he was informed about the earlier demand and harassment only through his
mother Jeyam. In this case admittedly neither the statement of Jeyam recorded
during investigation nor examined as witness. P.W.18/Investigating Officer
confirms the same. Ex.D1 marked through P.W.13/R.D.O. P.W.17/Investigating
Officer admits about Exs.D2 and D3. Strangely prosecution not disputed these
documents/Exs.D1 to D3 in any manner. Though D1 is in the nature of
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Crl.A.No.115 of 2016
explanation for not participating in the R.D.O. Enquiry and Ex.D2 is dated
18.12.2010, which is well before the occurrence. These two documents gives
explanation by the appellant.
12. In this case, there is no evidence to show soon before the death,
there was any demand, harassment or any contact in any manner by the
appellant. Admittedly, Gowri consumed poison in her parental house twenty
days after she left the matrimonial home. Thus, looking the case from any angle
the prosecution had failed to prove the case for charges under Section 304(b)
I.P.C. As regards 498-A I.P.C. subjecting the deceased Gowri to cruelty is
spoken by the father of the deceased, P.W.1 and other family members of the
deceased namely P.W.2, P.W.3, P.W.4, P.W.7, P.W.8 and P.W.10. During the
RDO inquest, the Panchayatars have clearly gave an opinion that deceased
Gowri used to come to her parental house at regular intervals, mostly due to
misunderstanding at her matrimonial home. The R.D.O. report confirms that the
said Gowri subjected to cruelty.
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Crl.A.No.115 of 2016
13. In view of the same, this Court confirms the conviction of the
appellant for offence under Section 498-A I.P.C. but modifies the sentence of
conviction to the period already undergone. The appellant was in confinement
from 05.01.2016 to 24.02.2016 (51 days).
14. In the result, this Criminal Appeal is partly allowed.
10.03.2023
(2/2)
Speaking / Non-speaking order
Index : Yes / No
Internet : Yes
rsi
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Crl.A.No.115 of 2016
M. NIRMAL KUMAR, J.
rsi
To:
1.The Session Judge,
Mahila Court, Salem
2.The Inspector of Police,
Thalaivasal Police Station,
Salem District.
3.The Public Prosecutor,
High Court, Madras.
Crl.A.No.115 of 2016
10.03.2023
(2/2)
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