Madras High Court
Murugan vs The State By on 11 March, 2020
Author: T.Ravindran
Bench: T.Ravindran
Crl.A.No.573 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.03.2020
PRONOUNCED ON : 11.03.2020
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
Crl.A.No.573 of 2013
and
M.P.No.1 of 2013
1. Murugan
2. Kunjal ... Appellants
Vs.
The State by
Deputy Superintendent of Police
Gobichettipalayam
Erode District
Crime No.77 of 2012 ... Respondent
Prayer: Criminal Appeal filed under Section 374 (2) Cr.P.C. to set aside the
conviction and sentence imposed on the appellant by the judgment dated
29.07.2013 passed in S.C.No.55/2013 on the file of I Additional Sessions
Judge, Erode by allowing the present criminal appeal before this Hon'ble
Court and thus render justice.
1/18
http://www.judis.nic.in
Crl.A.No.573 of 2013
For Petitioners : Mr.R.Nalliyappan
For Respondent : Mr.R.Ravichandran
Government Advocate (criminal side)
*****
JUDGMENT
Assailing the judgment dated 29.07.2013, passed in S.C.No.55/2013, on the file of I Additional Sessions Court, Erode, the appeal has been preferred by the appellants/accused.
2. Briefly stated, the case of the prosecution is that Mariammal is the daughter of PWs 1 and 2 and she was given in marriage to the first accused during the year 2009 and the first accused was addicted to drinking and inasmuch as Mariammal had failed to beget a child even after three years from the date of the marriage, the first accused used to abuse her on the said ground and also used to harass and inflict cruelty upon her and Mariammal used to come often to her parents house and her parents used to pacify both their daughter and the first accused and it is also stated that panchayat was also conducted with reference to the dispute between the first accused and Mariammal as regards the failure of Mariammal to beget a child and it is stated that on 01.04.2012 both the accused picked up quarrel 2/18 http://www.judis.nic.in Crl.A.No.573 of 2013 with Mariammal for not giving birth to a child and consequently, it is putforth that Mariammal doused kerosene on her and immediately, she was rushed to the Government hospital Gobichettipalayam and however, died in the early morning hours on 02.04.2012 and following the complaint launched by her father PW1 Saathuraan, the case had been registered against the accused under Section 498 A and 306 I.P.C. and thereafter, after examining the witnesses including the persons associated with the matrimonial life of the first accused and the deceased Mariammal as well as the Sub Division Magistrate who had conducted the inquest of the dead body of Mariammal and filed his report and accordingly, concluding the investigation, the final report had been laid by the respondent police under Sections 498 and 306 I.P.C.
3. The accused had pleaded not guilty of the charges levelled against them.
4. To sustain the charges levelled against the accused, PWs 1 to 15 were examined, Exs.P1 to P20 were marked and M.Os 1 to 7 were also marked.
3/18 http://www.judis.nic.in Crl.A.No.573 of 2013
5. Thereafter, the accused have been examined under Section 313 Cr.P.C. with reference to the incriminating evidence tendered against them by the prosecution witnesses and the same had been denied by the accused.
6. On the side of the accused, no oral and documentary evidence has been adduced and no material object has been marked.
7. The First Additional Sessions Court, Erode, on an appreciation of the materials placed on record, both oral and documentary, acquitted the accused under Section 306 I.P.C. and however, convicted them under Section 498 A I.P.C. and sentenced them to undergo imprisonment for two years and also to pay a fine of Rs.5,000/- (Rupees Five Thousand only) in default to undergo simple imprisonment for three months. Challenging the same, the present Criminal Appeal has been laid.
8. Inasmuch as the accused had been acquitted of the offence under Section 306 I.P.C., it is unnecessary to advert to the facts involved in 4/18 http://www.judis.nic.in Crl.A.No.573 of 2013 the matter in detail. Therefore, it has to be seen whether the conviction and sentence of the accused under Section 498 A has to be sustained as determined by the First Additional Sessions Court, Erode.
9. After holding that the prosecution has failed to establish the guilt of the accused under Section 306 I.P.C., the trial Court in one sentence has held that considering the evidence of PWs 1 to 3 as well as their statements recorded by the Sub Divisional Magistrate concluded that the accused had been abusing the deceased Mariammal for not begetting a child and thereby directed to return the pariyam amount of Rs.5,000/-(Rupees Five Thousand Only) projecting the intention of arranging a second marriage for the first accused and thereby, the first accused by consuming liquor used to inflict cruelty upon the deceased Mariammal physically and thereby proceeded to hold that the accused are liable to be convicted under Section 498 A I.P.C.
10. It is thus found that the trial Court has based the conviction of the accused under Section 498-A I.P.C. mainly upon the testimonies of PWs 1 to 3 as well as the statements said to have been given by them to the Sub Divisional Magistrate examined as PW14.
5/18 http://www.judis.nic.in Crl.A.No.573 of 2013
11. It is mainly put forth by the accused counsel that the trial Court has erred in placing reliance upon the evidence of PWs1 to 3 for upholding the conviction of the accused under Section 498-A I.P.C. and according to him, the abovesaid version of PWs 1 to 3 is only an improved version putforth by them during the course of evidence and they have not given any information to the IO or to the Sub Divisional Magistrate who had conducted the investigation and inquest respectively and therefore, according to him, based on the improved version tendered by PWs 1 to 3 during the course of trial and as the same is not fortified by any statement given by them to the IO as well as to the Sub Divisional Magistrate, in such view of the matter, according to him, the accused are entitled to be acquitted of the offence under Section 498-A I.P.C.
12. The trial Court without considering the abovesaid aspects of the matter, in a single sentence, has proceeded to hold that PWs 1 to 3 have tendered evidence regarding the cruelty inflicted upon the deceased Mariammal by the two accused on the footing that she had failed to beget a child and thereby had been forcing cruelty upon her. In this connection, 6/18 http://www.judis.nic.in Crl.A.No.573 of 2013 PW13, IO who had conducted major part of the investigation, has claimed that he has recorded the statement of PWs 1 to 3 as well as the other witnesses on 02.04.2012 and forwarded the same to the Magistrate Court immediately. However, as claimed by him, the statement alleged to have been recorded by him from PWs 1 to 3 and other witnesses had not been sent to the Magistrate Court immediately. On the other hand, as putforth by the accused counsel only after the receipt of the inquest report of the Sub Divisional Magistrate, the statement of the witnesses had been forwarded to the Judicial Magistrate Court. Be that as it may, PW13 during the course of cross examination has deposed as follows:
'gjpt[ bra;j thf;FK:yk; midj;ija[k;
clDf;Fld; ePjpj;Jiw eLth; mth;fSf;F mDg;g ntz;Lk; vd;w tpguk; bjhpak[ ;/ ehd; gzpapy; ,Ue;j tiu ehd; gjpt[ bra;j thf;FK:y';fis ePjpjJ ; iw eLth; mth;fSf;F mDg;gtpyi ; y/ 06/11/2012 md;W tUtha;nfhl;lhl;rpah; mwpf;if fpilf;fg;bgw;w gpdd; nu thf;FK:y';fs; jahh; bra;J ePjpkd;wk; mDg;gp itj;njd; vd;why; rhpay;y/ ,we;J nghd khhpak;khhs; ePjJ ; iw eLthplk; vd;d thf;FK:yk; bfhLj;jhh; vd;W vdf;F bjhpahJ/ m/rh/1 vdJ tprhuizapy; 1tJ vjphp Foj;JtplL ; te;J mo mo vd;W moj;J mth;
m/rh/1 tPlo; w;F mDg;gp tpLthh; vd;Wk;. ,J Fwpj;J 7/18 http://www.judis.nic.in Crl.A.No.573 of 2013 ehise;J Kiw g";rhaj;J ele;jjhft[k; thf;FK:yk; mspff; tpy;iy. m/rh/1 g[fhh; thf;FK:yk; vd;dplk;
jutpyi
; y/ m/rh/1 kw;Wk; 2 Mfpnahh;fs; vdJ
tprhuizapd; nghJ 2tJ vjphp ,we;Jnghd
khhpak;khis kyo vd;Wk;. jpl;oa[k;, ghpr gzj;ij jpUk;g bgw;Wf;bfhs; 2tJ jpUkzk; bra;J itf;fyhk; vd;Wk; vd;dplk; thf;FK:yk; mspff; tpy;iy. m/rh/1 vdJ tprhuizapd; nghJ ,UfhYhh; uPrhh;$; filf;F brd;w nghJ jd; kfs; jP itj;Jf;bfhz;ljhft[k;
kUj;Jtkidf;Fr; brd;Ws;sjhf bjhpe;J
bfhz;ljhft[k; thf;FK:yk; mspf;ftpy;iy/ m/rh/2
vdJ tprhuizapd; nghJ jpUkzkhd 6
khjj;jpypUe;nj thuk; xU Kiw 1tJ vjphp Foj;JtplL ; te;J jd; kfis moj;J Kof;fp tpLthh; vd;W thf;FK:yk; mspff; tpy;iy/ 1tJ vjphp Foj;JtplL ;
te;J mtuJ kidtpia mog;gjhf ,e;j tHf;fpwF ;
Kd;ghf ve;j xU g[fhUk; v';fs; fhty;epiyaj;jpy; gjpt[ bra;ag;gltpyi ; y/ rhpahd Kiwapy; ehd; g[yd;
tprhuiz bra;atpy;iy vd;why; rhpay;y'.
13. From the said evidence tendered by PW13, it is evident that no statement had been given to him by PWs 1 and 2 that the first accused used to beat the deceased Mariammal after consuming liquor and used to drive away her from home and fights had been held with reference to the same on 8/18 http://www.judis.nic.in Crl.A.No.573 of 2013 several occasion and similarly, it is found that PWs had not given any statement to him that the two accused abused the deceased Mariammal as 'Maladi' and forcing her to take back the pariyam amount and planning to arrange second marriage for the first accused. It is also further noted PW1 has not stated any cruelty inflicted upon the deceased Mariammal by the first accused by consuming liquor and also admitted that prior to the commencement of investigation, no complaint had been received by him that the alleged Mariammal had been subjected to any physical harassment or torture by the first accused. Therefore, from the abovesaid evidence of PW13, it is seen that PWs 1 and 2, namely, the parents of the deceased Mariammal had not given any statement to him about the ill-treatment said to have been inflicted upon the deceased by the accused on the footing that she had failed to beget a child and insisting her to take back the pariyam amount. When statements to that effect had not been given to the IO by the witnesses, namely, PWs 1 and 2, it does not stand to reason as to how the trial Court has placed reliance upon the improved version made by them, particularly, during the trial, as if the accused 1 and 2 had inflicted harassment and cruelty upon the deceased on the ground that she had failed to beget a child. Therefore, when there is a glaring omission between the 9/18 http://www.judis.nic.in Crl.A.No.573 of 2013 statement tendered by the witnesses PWs 1 and 2 to the IO as admitted by the IO himself and accordingly, when the improved version tendered by PWs 1 and 2 is found to be totally contradictory to the statement given by them to the IO, the trial Court has failed to take into consideration the abovesaid aspects of the matter in the right perspective and in accordance with law and in such view of the matter, in my considered opinion, the same had caused a serious prejudice to the accused and in such view of the matter, the determination of the trial Court for convicting the accused under Section 498-A I.P.C. based upon the improved versions of PWs 1 and 2 during the course of trial cannot be sustained as per law.
14. The trial Court seems to have been prevailed upon in holding that PWs 1 to 3 have tendered statements as regards the cruelty inflicted upon the deceased Mariammal by the accused by consuming liquor and on the ground that she had failed to beget a child to the Sub Divisional Magistrate. However quiet contrary to the same, the Sub Divisional Magistrate examined as PW14 during the course of cross examination has tendered evidence in the following manner.
'rhl;rpfspd; thf;FK:y';fs; gpdd ; plL ; jahh;
10/18 http://www.judis.nic.in Crl.A.No.573 of 2013 bra;ag;gl;lJ vd;why; rhpay;y/ m/rh/1 rhj;Jhuhd; vdJ tprhuizapd; nghJ vjphp jdJ kfis jpdKk;
Foj;JtplL ; te;J mo mo vd;W mog;ghh; vd;Wk;.
mJ FwpjJ ; ,we;J nghd khhpak;khs; m/rh/1 tPlo; w;F te;J brhd;djhft[k; thf;FK:yk; mspff; tpy;ih/ mnj nghy; 1tJ vjphp jpdKk; Foj;JtplL ; te;J kyo kyo vdr; brhy;yp moj;J cijj;jjhy; jhd; mts;
jw;bfhiy bra;J bfhz;lhs; vd m/rh/1 vdJ tprhuizapy brhy;ytpy;iy/ u';fk;khs; vdJ tprhuizapd; nghJ thuk; xU Kiw mth; kfs; jd;
tPlo; w;F te;J jdJ fzth; Foj;JtplL ; te;J moj;J Jd;g[Wj;Jthh; vdr; brhy;ytpy;iy/ mnj nghy; ij nehk;gpfF; gpdd; plL ; mth; tPlo; y; 2 Kiw g";rhaj;J ngrg;gl;ljhf brhy;ytpy;iy/ 2tJ vjphp 3 Mz;Lfs; Mfpak[ ; FHe;ij gpwf;ftpyi ; y vd;Wk; kyo kyo vd;Wk; vdnt 1tJ vjphpaplk; ghprg;gzj;ij nfl;Fk;go ntW jpUkzk; bra;J bfhs;syhk; vd;Wk; Fwpg;gplL ; brhy;ytpy;iy/ nkYk; jpUkzkhd 6 khjj;jpy; thuk; xU Kiw moj;J vd; tPlo; w;F KLf;fptpLthh; vd;W ; r; brhy;ytpy;iy'/ Fwpgg; plL
15. From the abovesaid evidence of PW14, it is seen that no statement had been given to him by PWs 1 and 2 with reference to the alleged cruelty inflicted upon the deceased Mariammal by the first accused by consuming 11/18 http://www.judis.nic.in Crl.A.No.573 of 2013 liquor and no statement had been given to him that the second accused had been abusing the deceased Mariammal for her failure to beget a child and forcing her to take back the pariyam amount and also to arrange second marriage to the first accused. Therefore, when such statement had not been tendered by PWs 1 and 2 as admitted by PW14 itself, it does not stand to reason as to how the trial Court is justified in upholding the conviction of the accused under Section 498-A I.P.C. based upon the unreliable evidence of PWs 1 and 2 in particular.
16. As per the explanation appended to section 162 Cr.P.C. an omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
17. In so far as this case is concerned, when according to the IO PW13 and the Sub Divisional Magistrate PW14, PWs 1 and 2 had not tendered any statement to them alleging inflictment of cruelty on the 12/18 http://www.judis.nic.in Crl.A.No.573 of 2013 deceased Mariammal by the accused as deposed by them during the course of trial and accordingly, when the abovesaid failure of PWs 1 and 2 to furnish such statement to the IO as well as the Sub Divisional Magistrate during the course of investigation amounts to a serious contradiction and the same appears to be highly significant and also relevant having regard to the context in which the same had occurred, in such view of the matter, in my considered opinion, the trial Court had failed to consider the abovesaid aspects of the matter in the proper perspective legally and erroneously upheld the conviction of the accused under Section 498-A I.P.C. without there being any foundation made by the prosecution for sustaining the improved version tendered by PWs 1 and 2 during the course of trial attributing cruelty on the part of the accused.
18. As far as PW3 is concerned, other than baldly claiming that the deceased had appraised him about the cruelty inflicted upon her by the first accused, he has not endeavoured to explain the same in detail and therefore, in such view of the matter, on the basis of the unreliable evidence of PW3, it cannot be safely held that the accused had been causing harassment and cruelty to the deceased as contemplated under Section 498-A I.P.C. 13/18 http://www.judis.nic.in Crl.A.No.573 of 2013
19. As per the accident register projected in the matter as Ex.P4, it is seen that the deceased was admitted in the hospital due to burn injury and immediately thereafter, the Judicial Magistrate was summoned to record the dying declaration of Mariammal and the dying declaration recorded by the Judicial Magistrate has been marked as P12 and the Judicial Magistrate who had recorded the same has been examined as PW10. On a perusal of the evidence of PW10, it is found that when she had proceeded to record the dying declaration of Mariammal, both the medical officer and his assistant were present and at the time of recording the dying declaration, the deceased was in a clear state of mind and during the course of cross examination, she has admitted that the deceased had only declared that she had sustained burn injury due to the fire accident in her saree while cooking and the same is the cause of her death and also further declared that her Mother-in-law, namely, the second accused attempted to douse the fire and got her admitted in the hospital immediately and the deceased had not stated the presence of the first accused, namely, her husband at the time of fire accident. Therefore, considering the evidence of Judicial Magistrate as well as the dying declaration marked as Ex.P12, it is found that the deceased Mariammal was in a fit state of mind while her dying declaration was 14/18 http://www.judis.nic.in Crl.A.No.573 of 2013 recorded and if really the accused had caused any cruelty, ill-treatment or harassment against her for her failure to beget a child and endeavoured to arrange a second marriage for the first accused, naturally, she would have endeavoured to give statement to that effect before the Judicial Magistrate and on the other hand, the deceased had only asserted that she had sustained burn injuries due to the fire accident while cooking accidentally and therefore, considering the abovesaid aspect of the matter, in toto, it is found that the matrimonial life of the deceased Mariammal and the first accused had not become strained as sought to be projected by the prosecution and on the other hand, they had been living together peacefully as husband and wife except with a few difference of opinion between them and the same is found to be blown out of proportion after the demise of the deceased as if the accused has inflicted cruelty upon her even three years after the marriage and when with reference to the same, the evidence of PWs 1 to 3 has no foundation and as above pointed out, PWs 13 and 14 having disowned any statement given to them by PWs 1 and 2, particularly, in such view of the matter, in my considered opinion, based upon the improved versions of PWs 1 and 2 as well as the unreliable evidence of PW3, no conviction could be fastened upon the accused under section 498-A I.P.C. 15/18 http://www.judis.nic.in Crl.A.No.573 of 2013
20. In the light of the abovesaid discussions, the conviction of the accused under Sections 498 A I.P.C by the trial Court is liable to be set aside and resultantly, the Criminal Appeal is allowed and the conviction and sentence imposed upon the accused under Section 498A I.P.C. passed in S.C.No.55/2013, vide judgment dated 29.07.2013, on the file of I Additional Sessions Court, Erode are set aside and the appellants/accused are acquitted of the said charge projected against them. The bail bond executed by the appellants shall stand cancelled. The fine amount, if any, paid by the appellants shall be refunded to them. Connected miscellaneous petition is closed. Connected MP is closed.
11.03.2020 Index : Yes/No Internet:Yes/No sli 16/18 http://www.judis.nic.in Crl.A.No.573 of 2013 To:
1. The I Additional Sessions Court, Erode.
2. The Deputy Superintendent of Police, Gobichettipalayam, Erode District, Crime No.77 of 2012.
3. The Public Prosecutor, High Court, Madras.17/18
http://www.judis.nic.in Crl.A.No.573 of 2013 T.RAVINDRAN, J.
sli Pre-delivery Judgment in Crl.A.No.573 of 2013 and M.P.No.1 of 2013 11.03.2020 18/18 http://www.judis.nic.in