Kalaimurthy vs State Rep By Its
2023 Latest Caselaw 3545 Mad

                                                          1

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 31.03.2023

                                                       CORAM:

                              THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH

                                         Criminal Appeal No.790 of 2015

                  Kalaimurthy                ..                         Appellant / Accused

                                                         Vs.

                  State rep by its
                  The Inspector of Police,
                  Harur Police station,
                  Dharmapuri District
                                                         ..Respondent /Complainant
                  Appeal filed under section 372 of Code of Criminal Procedure, to set

                  aside the conviction and sentence imposed in S.C.No.152 of 2014

                  dated 04.12.2015 on the file of Fast Tract Mahila Court, Sessions

                  Judge, Dharmapuri.

                                   For Appellant          :     Mr.R.Sankara Subbu
                                   For Respondent         :     Mr.L.Baskaran
                                                                Government Advocate
                                                                [Crl. Side]


                                                     JUDGMENT

This Criminal Appeal has been filed against the

https://www.mhc.tn.gov.in/judis

judgement and order passed by the Fast Track Mahila Court, Sessions

Judge, Dharmapuri in SC No.152 of 2014 dated 04.12.2015,

convicting the appellant in following manner:

                            Sl.No.    Offence for                   Sentence
                                         which
                                       convicted

1. Section 498 A 3 years Rigorous Imprisonment and to pay a fine of Rs.1,000/- and in default to undergo one month Rigorous imprisonment.

2. Section 304 B 10 years Rigorous Imprisonment.

[The above sentences were ordered to run concurrently and the period already undergone is directed to be set off u/s. 428 of Cr.P.C.]

3. The case of prosecution is that the deceased Vasanthi is

the daughter of PW1. She was married to the appellant two years

prior to the date of occurrence. It is alleged that even at the time of

marriage, there was a demand for dowry and certain gold jewels

were given at the time of marriage and even thereafter, there was a

demand for a sum of Rs.20,000/-. That apart, the appellant was https://www.mhc.tn.gov.in/judis

having an illegal intimacy with one Naveena. The mobile phone

belonging to the deceased Vasanthi was taken away and was given to

said Naveena. On 10/01/2010, during the night hours, there was

wordy quarrel in this regard. Thereby, it is alleged that the

deceased was treated with physical and mental cruelty by the

Appellant.

4. The deceased not being able to take it anymore, on

11/01/2010 at about 9.30 am, went inside the house and poured

kerosene on herself and set herself ablaze. This was informed to the

father of the deceased (PW1) and he found his daughter lying dead.

PW1 thereafter gave a complaint (Ex.P1) to the Aroor police station,

Dharmapuri and PW11 registered the FIR in Crime No. 18 of 2010

under Section 174 of Cr.P.C on 11/01/2010 at about 1.00 pm.

5. The information regarding the registration of FIR was

informed to the RDO (PW15). The RDO received the information on

11/01/2010 at about 4.50 pm. He started the inquiry on 12/01/2010

and recorded the statements of all the parties concerned and also https://www.mhc.tn.gov.in/judis

the people belonging to the locality. He prepared a report and he

came to the conclusion that it was only because of the demand for

dowry and continuous harassment in that regard, which had forced

the deceased to take the extreme step of committing suicide. The

report of the RDO was marked as Exhibit P8. PW15 also conducted

the inquest over the dead body of the deceased on 10.01.2013

between 8.45 a.m to 10.10 a.m and prepared the inquest report,

which was marked as Ex.P8.

6. PW16 took up the investigation and he received the

report of the RDO and also recorded his statement. PW16 went to

the scene of crime and prepared the obervation mahazar marked as

Ex.P2 and the rough sketch marked as Ex.P9. PW16 also recovered

the plastic can [MO1] from the scene of crime under Seizure magazar

marked as Ex.P3. PW16 recorded the statement of the witnesses

under Section 161 (3) of Cr.P.C. He prepared an alteration report

marked as Ex.P10 and the offence was altered to section 304 B of

IPC.

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7. The body of the deceased was sent for post mortem and

the post mortem was conducted by PW12 and PW13 and the post

mortem report was marked as Ex.P5. The appearances found at the

post mortem was recorded as hereunder:

A body of a female lying on its back. Eyes closed

and sunken. Mouth open. Blood oozing from

mouth. Tongue inside the mouth. Blood Oozing

from nostrils. Genitalia burnt. External inury

100% closed wound all over the body. Skin pealed

off all over the body. Scalp pealed off. Internal

examination hyoid bone intact. Ribs intact. Heart

chambers c/s.pale. Lungs c/s congested. Liver,

Kidney c/s. Congested and sunken. Stomatch 100

ml of liquid uterus empty and intact. Skull bones

intact. Brain intact. Viscera prepared. Stomatch

with intestine, hip, kidney 4. Perservasive Nacl.

The above four items were examined but poison

was not detected in any of item.

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8. A final opinion was given by the post mortem doctors to

the effect that the death was caused due to shock and burns 100%.

9. The investigation officer after the completion of

recording the statements of all the witnesses and after collecting all

the reports, filed the final report before the Judicial Magistrate

Aaroor. The learned Judicial Magistrate served the copies to the

appellant under Section 207 of Cr.P.C and the case was committed

under Section 209 of Cr.P.C to the file of District and Sessions Court,

Dharmapuri and it was made over to the Court below.

10. The Trial Court framed charges against the appellant for

offence under Section 498A and 304B of IPC. When the appellant was

questioned on the charges framed against him, he denied the same.

11. The prosecution examined PW1 to PW16 and marked

Ex.P1 to P10 and identified and marked MO1. The incriminating

evidence that was collected during the course of trial was put to the https://www.mhc.tn.gov.in/judis

appellant, when he was questioned under Section 313 (1) (b) of

Cr.P.C and he denied the same as false.

12. The Trial Court, on considering the facts and

circumstances of the case and on appreciation of the oral and

documentary evidence, came to a conclusion that the prosecution

had proved the case beyond reasonable doubts and accordingly,

convicted and sentenced the appellant in the manner stated supra.

Aggrieved by the same, the present Criminal Appeal has been filed

before this Court.

13. Heard Mr.R.Sankara Subbu, learned counsel for the

petitioner and Mr.L.Baskaran, learned Government Advocate, [Crl.

Side] for the respondent.

14. This Court has carefully considered the submissions made

on either side and the materials available on record.

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15. PW1 is the father of the deceased. He has stated in his

evidence that even before the marriage, the appellant was having a

relationship with one Naveena, who is also a distant relative of PW1.

Naveena’s family was not willing to give her on marriage to the

appellant. The elders requested PW1 to give his daughter in marriage

to the appellant. It was under these circumstances, the deceased

Vasanthi was married to the appellant. PW1 makes certain

statements to the effect that he had given 1.5 pounds of jewellery

and 0.5 pound of ring to the deceased. That apart, he also promised

to pay a sum of Rs. 20,000/-. The deceased also conceived and gave

birth to a girl child. Even according to PW1, there were regular

quarrels between his daughter and the appellant and most of the

time it touched upon the relationship of the appellant with the said

Naveena. Ultimately, the mobile phone belonging to the deceased

was handed over to Naveena and there was a quarrel between the

appellant and the deceased on 10/01/2010 during night hours. This

ultimately led to the deceased taking the extreme step of

committing self-immolation on 11.01.2010 inside the house.

Unfortunately, the deceased sustained 100% burns and died on the https://www.mhc.tn.gov.in/judis

spot.

16. On carefully, reading the evidence of PW1, it is clear that

the main reason for the repeated quarrels between the appellant

and deceased was with regard to the relationship of the appellant

with the above said naveena. To add insult to injury, the appellant

had taken away the mobile phone of the deceased and handed over

it to Naveena. This also ended in a quarrel and the extreme step

taken by the deceased of self-immolating herself. The allegations

regarding the demand for dowry was made only to further improve

upon the case and the demand for dowry was not the reason for the

regular quarrels between the appellant and the deceased.

17. PW2 is the mother of the deceased and her evidence is

also in line with the evidence of PW1. PW3 is the brother of PW1 and

he has also spoken on the demand of a sum of Rs. 20,000/- made by

the appellant. PW4 and PW5 who were also examined by the

prosecution on the same lines, did not support the case of the

prosecution.

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18. A cumulative reading of the evidence of all the witness

clearly point out to the fact that the deceased was subjected to

cruelty due to the relationship of the appellant with the above said

Naveena, which led to frequent quarrels between them. The

relationship of the appellant with Naveena was known to everyone

even before marriage and inspite of the same, the deceased was

married to the appellant and the situation only got worse. The

allegation with regard to dowry is more an embellishment to add

more force to the case of prosecution. The suicide committed by

deceased is not relatable to demand for dowry and it is directly

related to the intimacy between the appellant and the above said

Naveena.

19. The Court below repeatedly took note of the demand for

dowry of a sum of Rs.20,000/- from the depositions of PW1 and PW2

and had come to a conclusion that there was a demand for dowry

which led to the deceased committing suicide. However, the Court

failed to take note of the fact that the causa casusens for the suicide https://www.mhc.tn.gov.in/judis

committed by the deceased was not dowry demand and it was

directly related to the relationship of the appellant with the above

said Naveena. In view of the same, the charge under Section 304 B of

IPC is unsustainable. The appellant cannot be convicted and

sentenced for the alternate charge under Section 306 of IPC by

taking it as a minor offence, since, there is no material to show that

the appellant had instigated the deceased to commit suicide. When

the suicide was committed, the appellant was not even present in

the house.

20. The facts of the present case can be brought within

explanation (a) to Section 498A of IPC. The conduct of the appellant

was of such a nature that it has driven the deceased to commit

suicide. The cruelty faced by the deceased has also been clearly

spoken by PW1 and PW2. In view of the same, the conviction of the

appellant for offence under 498A of IPC has to be sustained.

21. The next issue is with regard to the sentence that was

imposed against the appellant while he was convicted for offence https://www.mhc.tn.gov.in/judis

under Section 498A of IPC. The Court below has sentenced the

accused to undergo three years rigorous imprisonment and to pay a

fine of Rs. 1000/- and in default to undergo 1 month simple

imprisonment.

22. It is brought to the notice of this Court that the chid

which was born through the wedlock is now taken care by the uncle

of the deceased. The appellant has already undergone incarceration

for a period of 909 days. The Court below has merely ordered for

payment of fine of Rs. 1000/-. Taking into consideration the facts

and circumstances of thecase, this Court is inclined to modify the

sentence. Accordingly, the sentence of imprisonment is confined to

the period already undergone by the appellant. The appellant is

directed to pay compensation of a sum of Rs. 2.5 lakhs to his

daughter. The amount shall be deposited in a fixed deposit and after

the daughter attains majority, she will be entitled to withdraw the

entire amount with accrued interest. Till the fixed deposit is closed

by the daughter of the appellant, it shall be renewed from time to

time. The fixed deposit for the amount of Rs. 2,50,000/- shall be https://www.mhc.tn.gov.in/judis

taken by the appellant on or before 02/06/2023 and the original

fixed deposit receipt shall be handed over to the daughter of the

appellant, who is now taken care by the uncle of the deceased. If

the appellant defaults in taking the Fixed deposit within the time

stipulated by this Court, the appellant shall undergo default

sentence of 1 year Rigorous Imprisonment.

23. In the result, the judgement and order passed by Fast

Track Mahila Court, Sessions Judge, Dharmapuri in SC No.152 of 2014

dated 04.12.2015, is modified to the extent indicated herein above

and this Criminal Appeal is partly allowed.

24. Post this case under the caption for “reporting

compliance” on 05.06.2023.

31.03.2023

Internet : Yes/No Index : Yes / No rka https://www.mhc.tn.gov.in/judis

To

1. The Sessions Judge, Fast Track Mahila Court, Dharmapuri

2.The Public Prosecutor High Court, Madras.

https://www.mhc.tn.gov.in/judis

N.ANAND VENKATESH.,J

rka

Crl.A.No.790 of 2015

31.03.2023

https://www.mhc.tn.gov.in/judis