Madras High Court
Syed Hakkim And Ors. vs State Represented By The Deputy ... on 22 March, 2007
Author: M. Chockalingam
Bench: M. Chockalingam, P.R. Shivakumar
JUDGMENT M. Chockalingam, J.
1. The appeal is directed against the judgment of the District Sessions Judge, Karur made in S.C. No. 1/2004 whereby the appellants 7 in number stood charged and tried. On trial, Accused Nos. 1 to 5 and 7 were found guilty under Section 498-A IPC and were awarded two years rigorous imprisonment along with a fine of Rs. 1000/- and default sentence. Accused Nos. 1 to 5 were found guilty under Section 302 IPC and were awarded life imprisonment along with fine amount of Rs. 1000/- and default sentence.
2. Briefly, the facts necessary for the disposal of this appeal can be stated thus:
(a) The marriage between the first accused and the deceased Syed Ali Fathima took place on 22.4.2001. A2 is the brother of A1. A3 and A4 are the sisters of A1 and A5 is the mother and A6 is the father of A1. A7 is the aunt of A1. P.W.1 is the mother of the deceased. At the time of marriage, P.W.1 paid Rs. 5,000/- and three sovereigns of gold jewels and after a period of two months, the first accused went over to Mumbai seeking for a job. All the other accused ill-treated the deceased stating that the dowry demand was not met. Prior to the occurrence, the first accused came from Mumbai. P.W.1 was summoned. At that time, there was a demand from Accused Nos. 1,2 and 7 that 10 sovereigns of gold and a sum of Rs. 5,000/- towards "Seervarisai" for Ramzan must be paid immediately. Accused No. 7 who was present at that time informed P.W.1 that she can pay the said demand within a period of two months.
(b) P.W.2 is closely related to P.W.1. On 6.3.2000, he came to Pallapatti and went to the house of P.W.1. P.W.2 was informed by P.W.1 that there was a dowry demand from the side of the accused. A marriage was scheduled to take place in the house of a resident which is next to the house of the first accused and hence on 8.3.2002, P.W.2 came to the house between 11 a.m. and 12 noon. He was chatting with the said neighbour. Since P.W.2 knew that there was a dowry demand, he decided to meet the deceased in her house for that purpose. When he was just getting down through the staircase, he was able to see the house of the deceased Fathima. A window was kept open through which he was able to see within 10 feet. At that time, A1 and A2 strangulated the deceased Fathima with a rope and A3 and A4 caught hold of both the arms. On seeing this, P.W.2 was shocked. When he was witnessing the occurrence, A2 saw P.W.2. Immediately, P.W.2 went over to the place of P.W.1. But, he could not meet anybody and he went over to his native place, Salem and returned on the next day, i.e., 9.3.2002.
(c) On the day of occurrence, i.e, 8.3.2002, the son of the 2nd accused proceeded to the house of P.W.1 and informed her that she was to be taken to the house of the accused and took her in a two wheeler. When P.W.1 went to the house of the accused, the wife of A2 locked inside and informed that the deceased Fathima was in the upstairs. When P.W.1 went to the upstairs, she found only the dead body of her daughter and P.W.1 was able to see a ligature mark around the neck of the deceased. When P.W.1 enquired, nobody gave any answer, but all laughed. P.W.1 immediately came back and informed to the relatives and proceeded to the respondent Police Station. P.W.13, the Sub-Inspector of Police was on duty on the day of occurrence. P.W.1 gave a complaint at about 17.30 hours which is marked as Ex.P.1 on the strength of which a case came to be registered in Crime No. 49/2002 under Section 174 Cr.P.C. Ex.P.11, the F.I.R. was despatched to the Court. On receipt of the copy of the F.I.R., P.W.14, the Deputy Superintendent of Police took up investigation, proceeded to the scene of occurrence, made inspection and prepared Ex.P.2-the Observation Mahazar and Ex.P.12-the rough sketch. He also sent a copy of the F.I.R. to P.W.10, the Revenue Divisional Officer. P.W.10, the Revenue Divisional Officer, on receipt of the copy of the F.I.R. proceeded to the place and also conducted inquest on the dead body in the presence of witnesses and prepared Ex.P.9, the Inquest Report, wherein he opined that it was not a case of suicide but it was the death by homicide. He also made enquiry of all the witnesses including the accused. Following the same, the dead body was subjected to postmortem by P.W.9, the doctor attached to Government Headquarters Hospital, Karur, who has opined that the deceased would appear to have died of Asphyxia due to strangulation about 24-36 hours prior to autopsy.
(d) Originally the case was registered under Section 174 Cr.P.C. Later it was converted into one under Sections 498-A and 302 IPC and the Express F.I.R. Ex.P.13 was despatched to the Court.
(e) Pending investigation, Accused Nos. 1 to 6 were arrested. A2 came forward to give confessional statement voluntarily and the same was recorded by P.W.13, the Deputy Superintendent of Police in the presence of witness, pursuant to which A2 has produced M.O.1-Nylon rope which was recovered under a cover of Mahazar, Ex.P.4. All the accused were sent for judicial remand.
(f) On completion of the investigation, the Investigating Officer filed the final report. The case was committed to Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution marched 16 witnesses and relied upon 13 exhibits and 3 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they denied as false. The accused examined 3 witnesses who were all Medical Officers through whom 5 exhibits were also marked. The Inspection Notes of the Sessions Judge which was made by him pending trial was marked as Ex.C.1.
(g) The Trial Court heard the arguments advanced on either side, scrutinised the materials available, considered the submissions made, found Accused Nos. 1 to 5 and 7 guilty under Section 498-A IPC and Accused Nos. 1 to 5 under Section 302 IPC and awarded the punishment as referred to above. Hence, this appeal at the instance of the appellants/accused.
3. Advancing his arguments Mr. R.Sivasubramanian, learned Counsel for the appellants, inter-alia made the following submissions:
(a) In the instant case, the entire fabric of the case rested upon with a motive that there was a dowry demand made by the accused party on Fathima, since the deceased. But, the prosecution had no reliable evidence to offer. According to P.W.1, payments were made at the time of marriage and subsequently, there were payments made. P.W.1 also stated that demands were also made prior to the date of occurrence, i.e., 8.3.2002. But no evidence was available.
(b) Added further, the learned Counsel that insofar as Accused No. 7 was concerned, just a few days prior to the occurrence, there was a demand by all other accused and Accused No. 7 was telling that it can be paid within a period of two months and that it was not a demand. Thus, in the absence of any evidence, the lower Court has found Accused Nos. 1 to 5 and 7 guilty under Section 498-A IPC for dowry demand and hence, that part of the judgment has got to be set aside.
(c) The learned Counsel further stated that the specific case of the prosecution was that A1 and A2 strangulated the deceased with a nylon rope and she died out of Asphyxia. During that occurrence, the crime was facilitated by A3 and A4 who actually caught hold of the arms of the deceased and the only evidence that was available, according to the prosecution, was that of P.W.2 who claimed to be an eye witness. P.W.2 is the native of Salem and did not belong to the place of occurrence. According to P.W.2, a marriage was scheduled to take place in the neighbour's house of the accused and in order to enquire about the marriage, he came to the place on 8.3.2002. He went to P.W.1's house, who is closely related to the witness and thereafter, went to the accused house, where he enquired about the marriage and also to see Fathima, the deceased, in her house. He was just about to go to the accused house and at that time, he peeped through the window and from where he was able to witness the occurrence when A1 and A2 were strangulating the deceased with a nylon rope. The crime was facilitated by A3 and A4. The Lower Court, pending trial, made an inspection and has also found that from the place of the neighbouring house, the place of occurrence could be seen through the window and has found the evidence of P.W.2 reliable. But, it is highly doubtful whether P.W.2 could have been present at the time of occurrence at all for more reasons than one. According to P.W.2, he came to the village only for the purpose of enquiring the marriage in the neighbour's house of the accused. When he was cross examined, he has categorically admitted that the neighbour was neither a relative nor he knew that the marriage of the daughter was scheduled and thus, it would falsify his evidence that he went to the neighbour's house of the accused.
(d) It is further pointed out by the learned Counsel that the occurrence has taken place between 11.00 a.m. and 12 noon and according to P.W.2 he saw the occurrence in entirety and it was a shock to him. But, at the time of cross examination, he candidly admitted that he proceeded to his native place, Salem, went to Communist Party Office, narrated the entire incident, received a letter from them and came to the place of occurrence at about 12.30 p.m. on the next day, i.e., 9.3.2002. When Revenue Divisional Officer was enquiring the matter, he did not open his mouth to narrate the incident. According to the prosecution, his statement was recorded on 9.3.2002 and the same was sent to the Court on 11.3.2002.
(e) The learned Counsel would further submit that had it been true, that when P.W.2, who claims to be a close relative of the deceased, has really seen the occurrence which caused him a shock, immediately he should have informed the relatives of the deceased. But, on the contrary, he went over to his native place, Salem, kept quiet and returned on the next day and even when the Revenue Divisional Officer was present at the time of inquest, P.W.2 did not speak anything. All would go to show that he could not have been present at the time of occurrence at all and thus, the evidence of P.W.2 has got to be rejected. The prosecution had no evidence to offer other than P.W.2.
(f) Added further, the learned Counsel that the recovery of M.O.1, the nylon rope, pursuant to the confessional statement alleged to have given by A2 on arrest was nothing but an introduction and it is pertinent to point out that nylon rope was actually recovered from the very house which is also from the side of the occurrence place. It would be proper to observe that while the inspection of the place of occurrence was made by the learned Sessions Judge, there was no need for recovery of this nylon rope through the accused on confession and thus, it was only to strengthen the evidence.
(g) The learned Counsel for the appellant also submitted that there is no evidence to show that at the time of occurrence, A1 was available in the house. On the contrary, he has clearly stated in his statement under Section 313 Cr.P.C. that he was at Salem and only after coming to know about the death of his wife, he came back. The defence came forward with a plausible theory that it was a case of suicide and she consumed pills and died out of the same. Apart from this, her dead body was found hanging in the ankle of the fan inside the house and they knocked the door. Since the door was not opened, they broke open the door and took the body of the deceased. Under the circumstance, the defence plea was plausible and the prosecution was not able to prove its case. Hence, they are entitled for acquittal in the hands of this Court.
4. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
5. The prosecution has levelled charges against the appellants/accused under Section 498-A and 302 IPC for murder of one Syed Ali Fathima. Concededly, at the time of marriage between the first accused and Fathima, the deceased, Rs. 5,000/- was paid along with some gold jewels. In order to substantiate that it was a demand for dowry subsequent to the marriage by the accused party, P.W.1, the mother of the deceased, has been examined wherein she has categorically spoken about every demand and the last demand that was made after A1 came down from Mumbai and at that time, there was a demand by the accused party that P.W.1 must give ten sovereigns of gold jewels and Rs. 5,000/- towards Ramzan "Seer" and this has happened just few days prior to the occurrence. At that time A7 was also present and he informed P.W.1 that she need not pay it immediately, but within a period of two months. It would be quite clear from the evidence of P.W.1 that the accused party were not satisfied with the "Seer" and that there was continuous demand till the time of occurrence. There is no reason attendant to suspect or cast a doubt on the testimony of P.W.1. No circumstance is also brought about and the lower Court has marshalled the evidence properly and found that there was a dowry demand and found them guilty. This Court is unable to notice anything to interfere with the judgment of the Court below in this regard.
6. Insofar as the second charge of murder is concerned, according to the prosecution, it was A1 and A2 who strangulated the deceased with nylon rope at the time of occurrence and the crime was facilitated by A3 and A4. The prosecution rested its case, apart from the circumstances available, on the direct evidence of P.W.2. As rightly pointed out by the learned Counsel for the appellants, it is highly doubtful whether P.W.2 could have been present at the place and time of occurrence at all for more reasons than one. In the Trial Court, when a doubt was raised by the defence regarding the place from where P.W.2 claimed to have seen the occurrence, the learned Sessions Judge made an inspection and also put forth the notes of inspection, which has been marked as Ex.C.1, wherein he has stated that from that spot, the occurrence place can be seen. But, that evidence can be accepted, if the availability of P.W.2 at the place of occurrence was accepted. It is highly doubtful whether P.W.2 could have seen the occurrence at all. According to P.W.2, he is the native of Salem and he came to the village in order to enquire the marriage which was scheduled to take place in the neighbour's house of the accused party. But, at the time of cross examination, he has candidly admitted that he did not know when the marriage was scheduled and he is also not a relative of that neighbour. If it be so, his claim that he came to the village on 8.3.2002 in order to enquire about the marriage is highly doubtful. Apart from that, according to P.W.2, he has witnessed the entire incident and he was put to shock. If it be so, the natural conduct of a person like P.W.2 would be to inform to the relatives of the deceased. But he has not informed anybody. He immediately went over to Salem and went to the Party's office and informed them about the occurrence and got a letter from them and then he came back to the village on the next day. The worst part of the evidence is that when the Revenue Divisional Officer was conducting the inquest at about 12.30 p.m., P.W.2 did not speak about the occurrence. All would go to show that P.W.2 could not have seen the occurrence at all and thus, the evidence of P.W.2 is liable to be rejected.
7. At this juncture, it is pertinent to point out that merely because the evidence of P.W.2 is rejected the entire case of the prosecution need not be rejected. The Court has to necessarily look into the circumstances available. Admittedly, the first accused is the husband of the deceased. After marriage, he went over to Mumbai for securing a job. He returned from Mumbai just before the occurrence. According to P.W.1, when she was summoned by the accused party on 6.3.2002, she went to the house of the accused. At that time A1, A2 and A3 were available. They demanded Rs. 5,000/- and ten sovereigns of gold jewels as Ramzan Seer. At that time, it is quite clear that A1 was also present in the house. It is pertinent to point out that the occurrence has taken place in the house of the first accused during the relevant time. In order to make it appear that he was not present at the time of occurrence, he pleaded alibi that he was in Salem. To ascertain the correctness of alibi, no material evidence was placed before this Court. Thus, it would be quite clear that in order to suppress his presence, he has come forward with a false plea of alibi.
8. Yet another circumstance which strengthened the case against the first accused, was that he has come with a false explanation stating that his wife was suffering from stomach ache and she used to say number of times that she is going to commit suicide and it was he who stopped her. In order to establish the same, three witnesses have been examined on the side of the defence along with the documents which are marked as Exs.D.1 to 8. All would go to show that the deceased was suffering from stomach pain. The first accused came forward with a plea that the deceased committed suicide and it was not a homicidal death. But, P.W.9, the doctor, by his evidence has ruled out the commission of suicide. He has opined that the deceased died out of Asphyxia due to manual strangulation. Apart from this, the occurrence has taken place inside the house and the best person who can speak about the fact as to how the death was ensued to the deceased cannot but be the husband of the deceased. But, he came with a false plea that she committed suicide. This fact will strongly act against the first accused.
9. Insofar as the second accused is concerned, he came with another false plea that both the doors were closed and so, he knocked the doors by calling the name of the deceased. Since the doors were not opened, he saw through the ventilator and found the deceased hanging on the ankle of the fan and he immediately broke opened the doors, got inside and took the body. Now, by giving such a written statement under Section 313 Cr.P.C., he wanted to make a plea that it was the case of suicide by hanging. This fact is also ruled out by P.W.9, the doctor who conducted postmortem, that the death was caused due to manual strangulation. Ligature marks were also found and thus commission of suicide was thoroughly ruled out.
10. According to P.W.1, immediately after the occurrence, she was informed about the occurrence. When she went to the house of the accused, she saw A2 along with Accused Nos. 3,4 and 5. Now, even in the statement under Section 313 Cr.P.C., A2 has candidly admitted that he was well available in the house. Under the circumstance, he is also responsible to answer as to how the death has happened. But, he came forward with a false plea that the deceased committed suicide. But, the evidence of P.W.9, the doctor, who conducted postmortem would make it clear that the deceased died out of Asphyxia due to manual strangulation by rope.
11. Yet another circumstance as against A2 was the recovery of the nylon rope, M.O.1, which was recovered pursuant to the confessional statement given by him and recorded by the Investigating Officer in the presence of witnesses. According to the prosecution, the nylon ropes was the weapon used for committing the strangulation. Under such circumstance, the confession and recovery of the nylon rope, M.O.1, pursuant to the confession would be indicative of the nexus between the crime and the accused. In a given case where the case of the prosecution was to be looked from the angle of circumstantial evidence and certain circumstances are well within the knowledge of the accused and the accused having such knowledge suppressed the circumstances, those circumstances will be acting against the accused. A1 has come forward with a false plea of alibi by way of stating that the deceased committed suicide by consuming poisonous pills. On the other hand, A2 came forward to speak that the deceased committed suicide by hanging and both A1 and A2 have suppressed actually as to how the death was ensued to the deceased. But the prosecution is able to bring forth the above circumstance narrated.
12. The Court is of the opinion that these circumstances would be suffice to indicate the complicity of A1 and A2 in committing the offence. Insofar as the charge of murder is concerned, this Court is unable to see sufficient evidence, which is free from doubt to make Accused Nos. 3,4 and 5 as accused. The contentions put forth by the learned Counsel for the appellant are considered by this Court and this Court rests conclusion that A1 and A2 are found guilty under Section 302 IPC and punishment awarded by the Trial Court is affirmed. Insofar as punishment under Section 498-A IPC is concerned, the judgment of the Trial Court in respect of A1 to 5 and 7 is affirmed and the punishment awarded by the Trial Court for offence under Section 302 IPC to A3, A4 and A5 is set aside and they are acquitted of that charge.
13. With the above modification, the appeal is dismissed. It is reported that A3 to A5 and A7 are on bail. Hence, the Sessions Judge shall take steps to commit them to prison to undergo the remaining period of sentence imposed under Section 498-A of IPC.