Madras High Court
Jayanthi vs State Rep. By Its on 19 September, 2024
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.1355 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.09.2024
PRONOUNCED ON : 19.09.2024
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1355 of 2024
and Crl.M.P.No.11579 of 2024
Jayanthi ... Petitioner
Vs.
1.State Rep. By its
The Deputy Superintendent of Police,
Madhuranthagam Circle,
Kancheepuram Sub-Division,
Kancheepuram.
2.The Inspector of Police,
Uthiramerur Police Station,
Uthiramerur. ... Respondents
PRAYER: Criminal Revision Petition filed under Sections 438 r/w. 442 of
BNSS, to set aside the impugned order dated 01.08.2024 passed by the
learned District and Sessions Judge at Kanchipuram in S.C.No.93 of 2022.
For Petitioner : Mr.S.Gunasekar
For Respondents : Mr.A.Damodaran
Additional Public Prosecutor
Page No.1 of 26
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Crl.R.C.No.1355 of 2024
ORDER
The petitioner, who was added as accused in S.C.No.93 of 2022 by
the Trial Court by order dated 01.08.2024, filed this revision petition.
2.The case of the prosecution is that on 08.07.2020 the petitioner as
defacto complainant lodged a complaint to the respondent police stating that
her daughter, namely, Sentharagai got married to one Yuvaraj on
24.05.2020. After their marriage, they lead a smooth matrimonial life. On
08.07.2020 at about 1.00 p.m., after finishing the work the defacto
complainant came back to the house and started cooking, at that time, her
daughter went to the bathroom to take bath. Since she had not come out for
more than 30 minutes and the petitioner's husband, accused in this case,
returned from work and wanted to use the bathroom, the defacto
complainant knocked the door but no response. Thereafter, the defacto
complainant and her husband went around the house and peeped through
the window, saw their daughter lying in the floor. Hence, they forcibly
broke opened the door, found their daughter motionless and taken all steps
to revive her, later she was confirmed dead. The respondent police was
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informed about the death and a case in Crime No.1315 of 2020 dated
08.07.2020 under Section 174(3) Cr.P.C. registered. Thereafter, the body
was sent for postmortem, found some external injuries and the petitioner's
husband was suspected, he was arrested, who gave a confession admitting
the guilt. On conclusion of investigation, charge sheet filed listing L.W.1 to
L.W.25 and the Trial Court took the case on file as S.C.No.93 of 2022 and
18 witnesses examined including the petitioner as P.W.1, the trial
progressed substantially, at that stage, the Trial Court invoking Section 319
Cr.P.C. arrayed the petitioner as accused and issued Non-Bailable Warrant.
Against which, the present revision petition is filed.
3.The contention of the learned counsel for the petitioner is that the
deceased Sentharagai, petitioner's elder daughter got married to one Yuvaraj
on 24.05.2020. The petitioner examined as P.W.1 narrated that her
daughter when staying with her on 08.07.2020 went to take bath by locking
bedroom, for long time she had not came out when tapped the door , to find
out the reason for not responding to the call, peeped through the window,
found her daughter on the floor motionless, broke open the door, called the
Doctor for help but not available and took steps to revive her. The Lab
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Technician Vinayagam/P.W.10 came there, checked the pulse, confirmed
her daughter was dead. Thereafter, on informing the family members about
the death, preparations were made for cremation. The respondent police on
getting information came to the petitioner's house, received a
complaint/Ex.P1 from P.W.1. P.W.2 is the sister-in-law of P.W.1, who is
also residing in the same building. P.W.3, second daughter of P.W.1,
P.W.4, daughter of P.W.2, P.W.5, father-in-law of P.W.1, P.W.6, mother-
in-law of P.W.1, all these witnesses not supported the case of the
prosecution, confirmed the petitioner's daughter went for bath by locking the
bedroom, later was found dead inside the bathroom, door broke open. The
reason for her daughter's death was due to slip and fall in the bathroom.
4.He further submitted that P.W.7, son-in-law of P.W.1 and husband
of the deceased Senthagarai, P.W.8, mother-in-law of the deceased, P.W.9,
father-in-law of the deceased confirms the marriage of deceased with P.W.1
and there was no serious matrimonial dispute between P.W.7 and the
deceased. P.W.10, family friend of P.W.1 and accused on getting
information immediately rushed to the petitioner's house. P.W.11, friend of
P.W.10 who is running a Clinical Laboratory, had come to the house of the
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deceased, examined the deceased and confirmed her death. P.W.12, friend
of P.W.2, running Sivam Medicals at Uthiramerur, on getting call from
P.W.2, informed non-availability of Doctor in the adjacent Clinic to her
medical shop, P.W.13 and P.W.14 are the neighbours, who are witnesses to
the observation mahazar and rough sketch. P.W.15 is the brother of P.W.1,
P.W.16 is a Comrade friend of P.W.1 and the accused. P.W.17 is the
Village Administrative Officer examined for arrest and confession, P.W.18 is
the Postmortem Doctor. Of these witnesses, except P.W.16, P.W.17 and
P.W.18, others not supported the case of the prosecution and treated hostile.
P.W.16 with ill motive had given an exaggerated version contradictory to her
earlier statement. P.W.17, Village Administrative Officer, speaks about the
arrest and confession of the accused. P.W.18/Postmortem Doctor, who
conducted postmortem issued postmortem report and opinion, Ex.P9 to
Ex.P11.
5.Thus the evidence of the witnesses is categorically clear that the
marriage between P.W.7/Yuvaraj and the deceased was held on 24.05.2020,
it was an arranged marriage and after the marriage, they were living in the
house of P.W.7 at Vandalur. During corona lock down, the deceased came
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to her parents house. P.W.7 and his parents P.W.8 and P.W.9 confirms that
there is no matrimonial dispute and she had voluntarily gone to her parents
house. Further, the evidence of P.W.1 to P.W.6 is that on 08.07.2020, the
deceased informed P.W.1 and P.W.3 that she is going to take bath. The
bathroom is inside the bedroom, there is no door to the bathroom, hence the
deceased locked the bedroom and went to take bath. P.W.1 was preparing
lunch, at that time the accused came home and he was to take bath, since the
deceased had not come out for a long time, they tapped the door but no
response, hence they peeped through window found their daughter on the
floor, thereafter, the door was broke opened and found their daughter
slipped on the floor and sustained injuries. Immediately, P.W.1 called
P.W.2, P.W.4/daughter of P.W.2, P.W.5 and P.W.6, her father-in-law and
mother-in-law, all staying in the same building. The accused called his
friend/P.W.10. P.W.2 called P.W.12, who is running a medical shop in
Uthiramerur and there is a clinic nearby to find out whether any Doctor is
available, but P.W.12 informed that there is no Doctor available. Thereafter,
P.W.10/Advocate was contacted, who approached P.W.11, who is running a
clinical laboratory, came to P.W.1's house, examined and confirmed the
death of their daughter. Since it was Covid-19 situation, there was no
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Doctor available and it was confirmed that the death was due to slip and fall
of the deceased while coming out of the bathroom.
6.On getting information, the Police came there, conducted
investigation in the presence of P.W.13 and P.W.14, prepared observation
mahazar and rough sketch and thereafter, the body was sent to postmortem.
In the postmortem certificate, it is stated that injuries were found on the neck
and recorded the death was due to manual strangulation. Hence, on
suspicion petitioner's husband was arrested in the presence of P.W.17 and
confession statement recorded. Except for the confession, there is no other
materials against the petitioner's husband. This fact has been deposed by all
the witnesses but P.W.16, a comrade friend of P.W.1 and accused gave an
exaggerated version giving new twist to the story for the death of
Sentharagai. It is stated by P.W.16 that the deceased Sentharagai had love
affair with one Manikandan which was opposed by her parents and forcibly
conducted her marriage with P.W.7. The deceased was unhappy of her
forcible marriage with P.W.7 and she complained to P.W.16. On
15.06.2020, the deceased said to have informed P.W.16 through mobile
about her unhappy matrimonial life and she wanted to meet P.W.16, talk in
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detail and the deceased was in emotive mood. She also informed P.W.16
that her parents are beating her, not understanding her feelings and wishes.
P.W.16 took the deceased to the Communist Party District Office where
they informed the District Secretary about the incident, who enquired, P.W.1
and the accused were questioned and they informed that they would not be
harsh to the deceased and they would take her to counseling and take steps
to resolve the issue. Again the deceased is said to have called and informed
P.W.16 about the continuation of her harassment and torture. Further, she
also received some message in the mobile and before she could react to the
cries of Sentharagai, she received the information about her death and she
suspected that Sentharagai was done to death by her parents. This is an
exaggerated and contradictory version which was not in her earlier
statement. This being so, based on her evidence and the evidence of
Postmortem Doctor, finding evidence against the petitioner confirming that
she also participated in the commission of offence, summoning her is against
the principles and procedures contemplated under the Act and the judgment
of this Court as well as the Apex Court.
7.In support of his contention, the learned counsel relied upon the
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decision of the Apex Court in the case of Arjun Panditrao Khotkar vs.
kailash Kushanrao Gorantyal and others reported in (2020) 3 SCC(Crl.)
1, wherein the Apex Court had given the guidelines and to what extent
electronic evidence can be relied upon. In this case, the contention of
P.W.16 about receiving phone call and messages have not been collected in
the manner known to law which is in clear violation of Information and
Technology Act and the Indian Evidence Act. Further, there is no electronic
evidence collected by the Investigating Officer in this case. The learned
counsel for the petitioner also relied upon the decision of this Court in the
case of G.Palanisamy vs. State rep. By Inspector of Police, District Crime
Branch reported in 2003 MadLJ (Crl.) 394, wherein this Court following
the decision of the Apex Court in the case of Micheal Machoda and
another vs. CBI and another reported in 2000 AIR SCW 734 held that if
the witnesses already examined are quite large in number the Court must
seriously consider whether the objects sought to be achieved by such
exercise is worth wasting the whole labour already undertaken. Unless
the Court is hopeful that there is reasonable prospect of the case as
against the newly brought accused ending in conviction of offence
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concerned, we would say that the Court should refrain from adopting such
a course of action. In this case, the petitioner is attempted to be arrayed as
accused for the offence under Section 302 r/w. 201 IPC when there is no
overt act for commission of offence on the evidence of the witnesses
examined so far. Further, in this case almost all the witnesses examined
except for the Investigating Officer and others and the case has reached the
penultimate stage, at this stage, invoking Section 319 Cr.P.C. and arraying
the petitioner as accused on the evidence and materials available is not
sustainable, erroneous, perverse and hence, liable to be set aside.
8.The learned Additional Public Prosecutor filed his counter and
submitted that on 08.07.2020 the petitioner/defacto complainant lodged a
complaint informing that her daughter Sentharagai got married to one
Yuvaraj on 24.05.2020 and after the marriage she lead a smooth
matrimonial life. On 08.07.2020, at about 1.00 p.m., after finishing her
work the complainant came to her house and started cooking, at that time,
the deceased went to bath by locking the bedroom but she did not return
back and not responded, gave any reply for the call made by the
complainant. Then, the complainant got suspicious, broke open the door
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and found the deceased lying in the floor. Thereafter, the complainant called
the Doctor and after examining the deceased, the Doctor declared her dead.
Based on the complaint, a case in Crime No.1315 of 2020 under Section
174(3) Cr.P.C. registered. During the course of investigation, the then
Deputy Superintendent of Police went to the scene of occurrence, prepared
observation mahazar and rough sketch in the presence of witnesses,
examined the defacto complainant and other witnesses and recorded their
statements. Thereafter, the then Deputy Superintendent of Police conducted
inquest on the body of the deceased in the presence of panchayatars and sent
the body for postmortem. The respondent police collected the postmortem
certificate and final opinion from the Postmortem Doctor, in which it is
stated that the deceased died due to manual strangulation of neck. Based on
the postmortem certificate, the respondent examined the husband of the
deceased and recorded his statement where he confirms that after marriage,
her daughter and P.W.7 not had a happy matrimonial life and their marriage
not consummated. Based on the postmortem certificate, the respondent
police altered the offence to Section 302 IPC. From the investigation, it is
revealed that the deceased already had love affair with one Manikandan
which was objected by her parents and they arranged a marriage with
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Yuvaraj. After marriage, the deceased and Yuvaraj did not lead a happy
matrimonial life. When the accused came to know about the same, he
questioned the deceased but she had stated that she want to live with
Manikandan, due to which the accused strangulated her neck and caused
death. On 24.07.2020, the respondent arrested the accused and recorded his
confession statement in the presence of witnesses and remanded him to
judicial custody. Based on his confession, the respondent police altered the
offence to Section 302 r/w. 201 IPC. On completion of investigation, charge
sheet filed and the same was taken on file in P.R.C.No.5 of 2022 dated
14.07.2022. Later, the case is committed before the learned Principal
District and Sessions Judge, Kancheepuram vide S.C.No.93 of 2022 dated
05.09.2022. During the course of trial, P.W.16 was examined, who
disclosed the role of the petitioner in commission of offence and the Trial
Court rightly added the defacto complainant/petitioner as accused.
9.In support of his contention, the learned Additional Public
Prosecutor relied upon the decision of the Hon'ble Supreme Court and
reiterated the dictum laid down in the case of Yashodhan Singh and others
vs. The State of Uttar Pradesh and another reported in 2023 Livelaw (SC)
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576 for the contention that a summoned person must be given an
opportunity of being heard before being added as an accused to face the trial
is clearly not contemplated under Section 319 Cr.P.C. It is also observed by
this Court in the case of Hardeep Singh vs. State of Punjab and others
reported in (2014) 3 SCC 92 that such a summoned person can assail a
summoning order before the Superior Court and will also have the right of
cross examining the witnesses and can let in his defence evidence, if any.
Hence, prayed for dismissal.
10.Considering the submissions made and on perusal of the materials,
it is seen that initially a case in Crime No.1315 of 2020 was registered on
08.07.2020 under Section 174(3) Cr.P.C., later it was altered to Section 302
IPC. The petitioner as defacto complainant lodged a complaint on
08.07.2020 stating that her elder daughter Sentharagai was given in
marriage to one Yuvaraj/P.W.7 on 24.05.2020 and after their marriage, her
daughter was living in her in-laws house. Due to lock down, 15 days prior
to the date of occurrence, the deceased came to her parents house and from
then on, she was residing with P.W.1 and the accused. On 08.07.2020 at
about 1.00 p.m., P.W.1 started cooking and the deceased went to take bath.
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At that time, P.W.1 and her younger daughter/P.W.3 continued cooking,
within a short time, her husband/accused in this case, came home and he
was to take bath. Hence, P.W.1 called the deceased to come out, since there
was no response they peeped through the window, found the deceased was
on the floor. The door was forced open and found her daughter breathless
and steps taken to revive her breathe, but her daughter could not be revived
and since the death was due to slip and fall, there was no doubt on the death
of the deceased, requested to conduct postmortem and hand over the body.
L.W.23/Sub-Inspector of Police received the complaint, registered FIR, took
up the investigation and thereafter placed the records to L.W.24/Nagendran,
who took up further investigation. L.W.25, the then Deputy Superintendent
of Police took up further investigation and filed charge sheet in this case
listing L.W.1 to L.W.25. Of the 25 witnesses, so far 18 witnesses examined,
of which, except for P.W.16, a comrade friend of P.W.1 and the accused,
who belong to Communist Party, P.W.17/Village Administrative Officer and
P.W.18/Postmortem Doctor, all other witnesses not supported the case of the
prosecution and treated hostile.
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11.P.W.1/mother of the deceased, P.W.3/sister of the deceased were
together along with the accused at the relevant point of time, who confirmed
Sentharagai was hale and healthy and went to take bath. The accused
reached home later. The deceased not coming out of the bathroom for quite
some time and not responding despite calling her and tapping the door and
thereafter she was found lying on the floor motionless. The accused broke
opened the door in the presence of P.W.1 and P.W.3, immediately P.W.1
and the accused took steps to revive her breathe, in fact P.W.1 had given
CPR treatment. In the meanwhile, P.W.3 informed P.W.2, residing in the
first floor and her grandparents/P.W.6 and P.W.7. P.W.2 immediately
called her friend P.W.12, who is running a medical shop in Uthiramerur to
find out from the adjacent clinic the availability of Doctor, P.W.12 informed
no Doctor was available. Thereafter, the accused called P.W.10, his
Advocate friend, active in the Communist Party, who called his friend
P.W.11, who is running a clinical laboratory, came to the house of P.W.1,
examined his daughter and confirmed the death of the deceased. P.W.1 to
P.W.6 residing in the same place, closely related to the deceased and all
these witnesses not supported the case of the prosecution.
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12.The Trial Court put specific question to P.W.1 with regard to the
marriage of her elder daughter Sentharagai with P.W.7, within few days
after the marriage, the said Sentharagai came back to her parents house, for
the darkness in the fingers found as confirmed by P.W.4/daughter of P.W.2,
but no explanation given for the injury. P.W.1 not stated the truth with
regard to the other injuries found on the body, further she specifically denies
that she has not seen any bruises and other injuries. P.W.2's evidence is in
confirmity to the explanation of P.W.1. P.W.3 confirms one of the finger of
the deceased turned blue in colour. P.W.4 confirms that the Primary Health
Centre is only half a kilometre from their house. The evidence of P.W.7 and
P.W.8, husband and mother-in-law of the deceased to the Court question
confirm that though the marriage was conducted, but marriage was not
consummated and further confirmed that marriage was forced on the
deceased. P.W.10 and P.W.11, friend of the accused, who answered to the
Court question, confirming that they reaching the scene of occurrence
immediately and confirming the death of the deceased.
13.Thus, it is not in dispute that the deceased Sentharagai is the elder
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daughter of P.W.1 and the accused. She was residing with them 15 days
prior to the occurrence, she was hale and healthy and there is no medical
complications on 08.07.2020. P.W.7 confirms that though the marriage was
held on 24.05.2020, their marriage was not consummated. P.W.2, P.W.4,
P.W.5 and P.W.6 confirm that the deceased was seen on the floor inside the
house of P.W.1 and the accused. P.W.4/daughter of P.W.2 confirms the
bruises in the hands of the deceased. P.W.1 to P.W.3 does not state about
the bruises, scratches on the neck and other injuries found on the body.
From the observation mahazar, it is seen that the door lock was found
separated from the door and recovered from the corner of the room. Further,
nail beds of fingers were cyanided occurs due to current shock and for that,
there have been some seizures as could be seen from the evidence of
P.W.17. The evidence of P.W.16 is categorically with regard to the
deceased having love affair with one Manikandan which was not approved
and accepted by P.W.1 and the accused. Thereafter, forcible marriage
conducted between the deceased and P.W.7. Further, the deceased
disclosed about her strained relationship to P.W.16 and the manner in which
she was subjected to cruelty and torture. P.W.16 took her to Community
Party office where she was enequired, P.W.1 and the accused agreed to take
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the deceased to Counseling and to resolve the issue. P.W.16 also stated
about the receipt of phone calls and messages. Further, it was projected as
though the deceased died due to hanging and later it was found that
Sentharagai was strangulated to death.
14.A scanned reproduction of the evidence of P.W.18/Postmortem
Doctor, Ex.P10 and Ex.P11, Postmortem report and Final opinion are as
follows:
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15.Thus the medical evidence confirms manual strangulation of neck.
The death occurred inside the house of P.W.1 and the accused. The external
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injuries and the internal injuries confirms that the reason for death could not
have been mere slip and fall in the floor. The Trial Court finding that all the
witnesses closely related, to protect the accused not supporting the case of
the prosecution and were focused, determined and ensured benefit of doubt
enures to the accused and others. The Trial Court rightly invoking Section
165 of Indian Evidence Act put Court questions to all the witnesses to
discover the truth and recorded the same, from P.W.1, P.W.2, P.W.4,
P.W.5, P.W.7, P.W.10. P.W.11, P.W.16 and P.W.18 and following the
judgment of the Apex Court in the case of Hardeep Singh vs. State of
Punjab and others reported in (2014) 3 SCC 92, the Trial Court rightly
added P.W.1 as accused and passed the impugned order dated 01.08.2024.
This Court finds no reason to interfere with the impugned order passed by
the Trial Court.
16.Accordingly, the criminal revision petition stands dismissed.
Consequently, connected miscellaneous petition is closed.
19.09.2024
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
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cse
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To
1.The Deputy Superintendent of Police,
Madhuranthagam Circle,
Kancheepuram Sub-Division,
Kancheepuram.
2.The Inspector of Police,
Uthiramerur Police Station,
Uthiramerur.
3.The District and Sessions Judge,
Kanchipuram.
4.The Public Prosecutor,
High Court, Madras.
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M.NIRMAL KUMAR, J.
cse
Pre-delivery order made in
19.09.2024
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