Madras High Court
Senthilrajan vs State Rep By The on 11 February, 2014
Author: P.N.Prakash
Bench: S.Rajeswaran, P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11..02.2014 CORAM: THE HONOURABLE MR . JUSTICE S.RAJESWARAN AND THE HONOURABLE MR. JUSTICE P.N.PRAKASH Criminal Appeal No.365 of 2013 Senthilrajan ... Appellant -Vs- State rep by the Assistant Commissioner of Police Anna Nagar Range Chennai. ... Respondent This Criminal Appeal has been preferred against the conviction and sentence dated 02.05.2013 in S.C.No.272 of 2009 on the file of the Court of Sessions Judge (Mahalir Neethimandram) Chennai, whereby the appellant has been sentenced to undergo three years rigorous imprisonment with a fine of Rs.5,000/- in default to undergo further period of three months simple imprisonment under Section 498(A) IPC and to undergo imprisonment for life with a fine of Rs.10,000/- in default to undergo further period of six months simple imprisonment under Section 304(B) IPC and the sentences were directed to run concurrently with set off u/s 428 Cr.P.C. For Appellant : Mr.M.Venkateswaran For Respondent : Mr.V.M.R.Rajendran Additional Public Prosecutor J U D G M E N T
(Judgment of the Court was delivered by P.N.PRAKASH, J.] The sole accused, who was tried in S.C.No.272/2009 by the Sessions Court [Mahila Court] Chennai, and convicted by judgment dated 02.05.2013 for offences under Section 498(A) and 304B) IPC, is the appellant before us.
2. The appellant was sentenced to undergo three years Rigorous Imprisonment with fine of Rs.5,000/-, in default to undergo Simple Imprisonment for three months for the offence under Section 498(A) IPC and imprisonment for life with fine of Rs.10,000/-, in default six months Simple Imprisonment for the offence under Section 304(B) IPC.
3. It is the case of the prosecution that the appellant and the deceased Devi got married on 03.03.2006 and at the time of their marriage, Devi's parents P.Ws.1 and 2 had given her 40 sovereigns of gold and had borne the marriage expenses. The couple also have male child, 1-1/2 years old.
(a) It is the case of the prosecution that the appellant was addicted to liquor and in drunken mood he would beat his wife. It is also the prosecution case that the appellant would ask his wife to bring more money from her parents frequently.
(b) That on 01.09.2008 the couple shifted from Poompuhar, Anna Nagar to a new house, No.18/15 Dr.Ambedkar Street, Arumbakkam, as tenant. The said house belongs to Mr.Madhusudanarao [P.W.5]. After the house warming ceremony in the morning, in the night around 10.00 p.m., Devi committed suicide by hanging by tying her Dupatta [M.O.1] to the ceiling fan. Immediately the appellant has taken her to the Kilpauk Medical College Hospital, where she was examined by Dr.Baskar [P.W.15] and her body was lifeless.
(c) Dr.Baskar [P.W.15] made the necessary entries in the Accident Register, the copy of which is Ex.P6 and sent the body to the mortuary for further action. The owner of the house Madhusudanarao [P.W.5] lodged a complaint [Ex.P3] with the jurisdictional police at 1.15 a.m. on 02.09.2008, based on which Mani, Sub Inspector of Police [P.W.17] registered a case in Arumbakkam K8 Police Station Cr.No.499/2008, under Section 174(3) Cr.P.C.
(d) In the complaint, it has been merely stated that, the appellant and Devi came as tenants for a monthly rent of Rs.6,000/- and they gave Rs.20,000/- as advance to Madhusudanarao [P.W.5] on the previous day i.e. on 31.08.2008 and performed the customary pooja on 01.09.2008. In the night, around 10.00 p.m. he learnt from the appellant that Devi had hanged herself and that he does not know the reason for death.
(e) Since the marriage between the appellant and Devi was within a period of 2-1/2 years from her death, investigation in this case was taken over by Mr.Vijayakumar, the Assistant Commissioner of Police [P.W.18], who proceeded to the mortuary in the Kilpauk Medical College Hospital. Thereafter, he came to the scene of occurrence and in the presence of witnesses Prabhu [P.W.8] and Vijayan [not examined], prepared an Observation Mahazar [Ex.P12] and Rough Sketch [Ex.P13]. In the presence of the same witnesses, he seized the Dupatta [M.O.1] under the cover of Mahazar [Ex.P14]. He examined the house owner and other witnesses and since he found that the marriage between the appellant and the deceased had taken place within 2-1/2 years of Devi's death, he informed the Executive Magistrate to conduct the inquest.
(f) The inquest was done by Mr.S.Subbiah, the Executive Magistrate who seems to have examined the parents of the deceased, sister of the deceased and the house owner. In the Inquest Report [Ex.P17], he has opined two reasons for the suicide;
(i) That the appellant was dark in complexion and the deceased was fair in complexion and therefore, the appellant suspected the fidelity of his wife; the appellant is addicted to liquor.
(ii) On account of demand of dowry.
(g) The body of Devi was despatched for postmortem and Dr.Harry Shanthaseelan and Dr.Subramanian [P.W.16] performed the autopsy on the body of Devi. The Postmortem Certificate is Ex.P8. From the evidence of Dr.Subramanian [P.W.16] and Postmortem Certificate [Ex.P8], the following aspects emerged:
"Ante mortem ligature mark incomplete 25 cm x 2 cm, about 7 cm from chi, 6 cm from sternum, 7cm from Rt. Mastoid process and 6cm from left mastoid process . No other external injuries. Heart : Normal, c/s congested. Lungs : Normal c/s congested. Trachea : Normal empty. Hyoid bone : In tact. Stomach : 300 ml red colour fluid present. Liver, spleen, kidneys are normal in size c/s congested. Bladder : 100 ml of urine present. Uterus : Empty. Pelvis, spinal column, bones, scalp, membranes are in tact. Brain normal."
(h) The viscera taken from the internal organs was sent to the Tamil Nadu Forensic Sciences Department for chemical analysis and the report dated 03.10.2008 [Ex.P9] shows that poison was not detected in the internal organs. The opinion given by the Doctor in Ex.P9 is that, "the deceased would appear to have died of Asphyxia due to hanging".
(i) It may mentioned here that apart from the injuries in the neck, the Doctors have not noted any other injury on the body of Devi. Mr.Vijayakumar [P.W.18] continued with the investigation and recorded the statements of the Doctors and the Executive Magistrate who conducted the inquest. After completing the investigation he filed a final report for offences under Sections 498(A), 306 and 304(B) IPC before the jurisdictional Magistrate who took it on file in PRC No.58/2009.
(j) When the appellant appeared, provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Sessions. The Sessions Judge framed three charges:
(1) For the offence u/s 498A IPC;
(2) For the offence u/s 304B, alternatively (3) For the offence u/s 306 IPC.
(k) The appellant denied the charges and the prosecution examined 18 witnesses, marked 17 exhibits and one material object. When the appellant was questioned about the incriminating circumstances against him under Section 313 Cr.P.C., he denied the same and filed a written statement explaining his stand.
No witness was examined on his behalf or any document marked.
(l) After considering the evidence on record, the trial Court convicted and sentenced the appellant as aforesaid and acquitted him for the charge under Section 306 IPC. Hence the appellant is before us.
4. Subramaniam [P.W.1] and Kalavathi [P.W.2] are the parents of the deceased Devi. Gopalakrishnan [P.W.3] and Karikalan [P.W.4] are the sons-in-law of P.W.1 as they have married the sisters of Devi. Madhusudanarao [P.W.5] is the owner of the house where the incident took place. Suresh Maran [P.W.6] is a co-tenant, but he was declared hostile by the prosecution. Kumar [P.W.7] was sought to be examined to prove that mediation was done between the couples, but he did not support the prosecution and he was declared hostile. Prabhu [P.W.8] who was supposed to be the witness for the Observation Mahazar and recovery witness did not support the prosecution case. Geetha [P.W.9] and Jothi Mary [P.W.10] who were the neighbours did not support the prosecution case and they were declared hostile. Shanthi [P.W.11] the sister of the deceased Devi was examined. The relatives of the deceased Devi namely P.W.1, P.W.2, P.W.3, P.W.4 and P.W.11 gave evidence corroborating each other.
5. P.W.1 in his evidence stated that the marriage between his daughter Devi and the appellant was solemnised on 03.03.2006 and at the time of marriage he gave his daughter 40 sovereigns of gold as dowry and also gave 5 sovereigns of gold to the appellant. The marriage was also performed by them. They also had given household articles, worth Rs.1,00,000/- to the couple. The couple lived happily for about six months. Thereafter there was financial problem for the couple on account of debts. To discharge the debts, the appellant would ask his wife to get money from his parents and subject her to cruelty and that he gave a sum of Rs.1,00,000/- from his retirement benefits to pay some of the debts. After the death of the father of the appellant, the appellant was jobless for a period of three months and during that time also he would ask for money from his wife. When Devi was pregnant, on one night the appellant had chased her out of the house. On coming to know of that, when P.W.1 went to her house he was told that the appellant banged her head on the wall. But Devi did not want to give any complaint because she wanted to live with the appellant. As regards this specific allegation, it has been elicited by the defence in the cross examination that this witness had not stated about this incident either to the Police or to the Executive Magistrate, who conducted the inquest. Therefore, they contended that this is an improvement which he has made in his evidence now.
6. Further P.W.1 has stated that after the birth of the male child there was again misunderstanding between the couple and there was mediation talks. During those parleys, the appellant would openly accuse Devi of infidelity. The parents sent Devi back to the house of the appellant and also sent their other daughter Shanthi to be with them for some time. It is also in his evidence that the appellant would consume liquor and he learnt from his daughter that the appellant had sold the jewellery which was given to her. This is broadly his evidence with regard to the offence under enquiry and the rest of his evidence relates to coming over to Devi's house after coming to know of her death and participating in the inquest and other proceedings. Kalavathi [P.W.2] also in her evidence, more or less, stated the same things and in her cross examination she stated that the couple were happy for about a year after marriage.
7. Gopalakrishnan [P.W.3] the son-in-law, in his examination-in-chief spoke about the marriage between Devi and the appellant and also about the things that were given to Devi at the time of marriage. He further stated in the chief examination that the appellant demanded Rs.1,00,000/- as dowry from Devi, which was paid by Subramaniam [P.W.1]. In his cross examination he admitted that during the time of the incident he was not in Chennai but was working as a Teacher in Vellore District, which is away from Chennai and that he had no direct knowledge about all these but had learnt through his father-in-law.
8. Kaikalan [P.W.4] another son-in-law in his examination-in-chief also stated about the the marriage between Devi and the appellant and about the jewellery that were given by P.W.1 to her at the time of wedding. He stated that the appellant demanded Rs.1,00,000/- as dowry from his father-in-law and ill treated his wife for not bringing it. In the cross examination he has stated that he visited the house of the appellant only twice and that it is shown that he was working in Coimbatore District.
9. Shanthi [P.W.11] the sister of Devi who at some point of time was living with the couple stated in her evidence that the appellant was addicted to liquor and that he would beat his wife suspecting her fidelity frequently because he was dark in complexion and she was fair in complexion. She also stated in her evidence that the appellant had lot of debts because of his liquor habit. The appellant was working in Reliance Company as Instructor. That the appellant had squandered away the jewels given to the deceased by her parents. Shanthi was present on 01.09.2008 when the couple moved into the new house and she was helping her sister in setting up the house. It is in her evidence that even on that day, the appellant consumed liquor and picked up quarrel with his wife with regard to the payment of advance to the land owner. This is broadly the evidence on record in this case.
10. From a careful scrutiny of the evidence of the witnesses, apart from a few contradictions here and there which are insignificant, the prosecution has proved that Devi was subjected to cruelty by the appellant and that he would get drunk and beat her frequently on account of the inferiority complex that he suffered and also because of his suspicious nature. The defence was not able to make any serious dent on this aspect of evidence of the prosecution witnesses. Therefore, we have no hesitation in holding that the prosecution has proved the charge under Section 498A IPC against the appellant.
11. As regards the charge under Section 304(B) IPC , it is true that the marriage between the couple had taken place within 2-1/2 years of the death of Devi. The death of Devi has been proved to be suicide by hanging. It is the appellant himself who has carried her to the Kilpauk Medical College Hospital on the fateful day by which time she had died. Therefore, the question now is whether, is their evidence to show that it was a dowry death? Section 304(B) IPC states that death must have occurred on account of cruelty or harassment in connection with any demand for dowry. The Section also states that the word 'Dowry' shall have the same meaning as in Section (2) of the Dowry Prohibition Act. Section 2 of the Dowry Prohibition Act, 1961 states that :
"Definition of "dowry.-- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly--
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."
12. Therefore, to hold a person guilty for the offence under Section 304(B) IPC, the following ingredients require to be established:
(i) The marriage must have been taken place within seven years prior to the death of the wife. In this case this condition is satisfied.
(ii) Soon before her death, the wife should have been subjected to cruelty or harassment in connection with any demand for dowry. As defined by the Dowry Prohibition Act, "dowry" means property given or agreed to be given before or any time after the marriage, in connection with the marriage. This ingredient does not stand satisfied from the evidence of the prosecution witnesses. It is in the evidence of P.Ws.1 and 2 that 40 sovereigns were given by them to their daughter but it was not on the demand made by the appellant. There is no evidence to show that soon before the death, the appellant had subjected the deceased to cruelty in connection with the demand of dowry. From the evidence of the father and other relatives, the appellant was demanding money in order to pay his debts. The money was not demanded in connection with marriage. It is the positive evidence of P.W.1 that he gave Rs.1,00,000/- from his retirement benefits because the appellant was in debts. The usage of the word "dowry by the two sons-in-law, P.W.3 and P.W.4 is in colloquial sense and not within the meaning of the word "Dowry" as defined by the Dowry Prohibition Act, which has been extracted above. The person to whom the actual demand of Rs.1 lakh was allegedly made by the appellant, namely P.W.1, has himself stated that the money was demanded to meet the debts. Witnesses also deposed that the couple were happy for a substantial period of time and the appellant lost his job after the death of his father. Since he left his job his demand for money became strident. There is no iota of evidence to show that money was demanded by the appellant in connection with the marriage.
13. The presumption under Section 113-B of the Evidence Act can be raised only if the minimum ingredients of the offence under Section 304(B) IPC stands proved, as held by the Supreme Court in Shindo @ Sawinder Kaur vs. State of Punjab [2011(4) MLJ Crl 312]:
"6......Undoubtedly in a case of a dowry death under Section 304-B, a presumption of Section 113-B does arise against the accused. However, the presumption is relateable to the fact that the prosecution must first spell out the ingredients of the offence and then only can a presumption arise. In the present case we find that the death wa an unnatural one and had taken place within seven years of the marriage but the third ingredient that any demand for dowry had been made soon before the death has not been proved. In this view of the matter the presumption under Section 113-B of the evidence cannot be raised. We accordingly allow this appeal; set aside the judgment/order of the High Court."
14. In Durga Prasad vs. State of Madhya Pradesh 2010 (4) MLJ Crl. 511, the Supreme Court held that :
"As has been mentioned hereinbefore, in order to hold an accused guilty of an offence under Section 304-B IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be 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. Only then would such death be called "dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned."
Therefore, we hold that the prosecution has failed to prove the charge under Section 304(B) IPC.
In the result, the conviction and sentence of the appellant under Section 304(B) IPC is set aside and the appellant is acquitted of this charge. The conviction and sentence imposed on the appellant for the offence under Section 498(A) IPC is maintained. The appeal is partly allowed.
[S.R.,J.] [P.N.P.,J.]
11..02.2014
Index : Yes
Internet : Yes
To
1.The Assistant Commissioner of Police
Anna Nagar Range
Chennai.
2.The Sessions Judge
(Mahalir Neethimandram) Chennai
3.The Public Prosecutor
High Court, Chennai.
S.RAJESWARAN, J.
AND
P.N.PRAKASH, J.
gms
Judgment in
Crl.A.No.365 of 2013
11..02..2014