Madras High Court
Ragupathy (A1) vs The State By Inspector Of Police on 31 July, 2019
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.A.No.341 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.07.2019
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.341 of 2010
1.Ragupathy (A1)
2.Padmavathy (A2) ... Appellants
Vs
The State by Inspector of Police,
Ammapet, Crime No.1093/2010 ... Respondent
/Complainant
Prayer:- This Criminal Appeal is filed under Section 374 (2) of Cr.P.C, against
the judgement of conviction and sentence dated 07.06.2010, made in
SC.No.23/2010, by the Sessions Judge, Mahila Court, Salem.
For Appellants :Mr.N.Manokaran
For Respondent :Mr.K.Prabakar, APP
JUDGMENT
1. This Criminal Appeal is filed by the appellant/accused against the judgement of conviction and sentence passed by the file of the learned Sessions Judge, Mahila Court, Salem, in S.C.No.23/25010 dated 07.06.2010, finding A1 guilty of the offences under Section 498-A IPC, 307 r/w 109 IPC and section 4 of Dowry Prohibition Act and A-2 guilty of the offences under sections 498- A and 307 IPC and section 4 of Dowry Prohibition Act and sentencing A1 to undergo rigorous imprisonment 3 years and to pay a fine of Rs.1000/- with a default sentence of 3 months rigorous imprisonment for the offence u/s.498- 1/21 http://www.judis.nic.in Crl.A.No.341 of 2010 A IPC; and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1000/- with a default sentence of 3 months rigorous imprisonment for the offence under Section 307 r/w 109 IPC ; and to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/- and in default, to undergo one month rigorous imprisonment for the offence under section 4 of DP Act, and sentencing A2 to undergo rigorous imprisonment 3 years and to pay a fine of Rs.1000/- with a default sentence of 3 months rigorous imprisonment for the offence u/s.498-A IPC; and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1000/- with a default sentence of 3 months rigorous imprisonment for the offence under section 307 IPC; and to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/- and in default, to undergo one month rigorous imprisonment for the offence under section 4 of DP Act. The above sentences were ordered to run concurrently. The remand period already undergone by the accused, was ordered to be set off under section 428 Cr.P.C.
2. The case of the Prosecution is as follows:-
a) The Inspector of Police, Ammapet Police Station, Salem City has laid a final report against A1 and A2, alleging that the marriage between A1 and the complainant was solemnised on 06.06.2008 and that at the time of marriage, the parents of the complainant gave 15 sovereigns of gold jewels to the complainant ; that they gave 1 sovereign of gold jewel to A1 and that they also gave household articles too as Sreedhana. 2/21
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b) That after marriage, the complainant was living with the accused at NGCO Nagar, Moolapalayam, Erode; that A1 did not go to any work and he was addicted to bad habits; that when the complainant questioned A1 about his activities, both the accused scolded the complainant; due to which, she got mental agony; that the accused harassed her stating that she should not speak with others including her parents over phone.
c) That on 01.01.2009 at 2.00 p.m., with an intention of causing the death of the complainant, A2 kept opened the gas cylinder and attempted to murder her and that A1 abetted A2.
d) That on 07.01.2009 A1 and A2 demanded Rs.2 lakhs from the complainant and also demanded one sovereign of gold jewel from her as dowry,
e) That on 25.06.2009 at 11.00 a.m, A1 and A2 came to the parental home of the complainant and threatened the complainant that she should bring Rs.2 lakhs ; otherwise they would engage persons to kill her and also her parents and thereby A2 has committed offences punishable under Sections 498 A IPC, 307 IPC and section 4 of DP Act and A1 has committed an offence punishable under Section 498-A IPC, 307 r/w 109 IPC and 4 of DP Act 1961.
f) The case was taken on the file of the Judicial Magistrate, No.5 Salem, in PRC No.35/2009 and copies of the documents relied on by the prosecution were furnished to the accused under Section 207 Cr.P.C and the learned Magistrate finding that the case was trible by Court of 3/21 http://www.judis.nic.in Crl.A.No.341 of 2010 Sessions had committed the case to the Principal District Judge, Salem under section 209 Cr.PC and the same was made over to the the Mahila Court, Salem for trial.
g) After hearing the accused, charges were framed against A1 and A2 and when questioned in respect of the charges, the A1 and A2 had denied the charges and thereby, they sought for trial. On the side of the prosecution 7 witnesses were examined as P.Ws.1 to 7 and Ex.P1 to Ex.P5 were marked and no oral evidence was let in by the side of defence. Ex.D1 to Ex.D3 were filed by the defence side.
3. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C as to the incriminating circumstances, found in the evidences of prosecution witnesses and the accused have come with the version of total denial and stated that a false case had been given due to matrimonial dispute.
4. The Court below, after hearing the arguments advanced on either side and also looking into the materials available on record, found the accused/appellant guilty and awarded punishments, as referred to above, which is challenged in this criminal appeal. After conviction and during the pendency of the appeal A1 has expired and the appeal in respect of him stands abated.
5. Assailing the judgment of conviction and sentence, impugned herein, the learned counsel for the appellants would rise the following points:
i. the evidence let in by the prosecution, taken in its entirety, do not 4/21 http://www.judis.nic.in Crl.A.No.341 of 2010 disclose the offences alleged against the appellants. The learned trial Judge had failed to note that the occurrence, as given in the complaint is stated to have taken place on 01.01.2009 at about 2 p.m. and the complaint was prepared on 20.06.2009 and was given to the police on 23.06.2009 and forwarded to the All women Police Station, Ammapet, on 25.06.2009 for registration of the complaint and absolutely no explanation or reason is stated by the prosecution for the inordinate delay in lodging the complaint. ii. The trial Court had failed to note that the respondent/police had referred the matter to the District Social Welfare Officer/ Dowry Prohibition Officer, PW.2 under Ex.D2 to find out the truth and veracity of the complaint however, the respondent/police strangely without following the mandate of the circular issued, pursuant to the direction to this Court dated 07.07.2018 had with the pre-determined mind, without any enquiry being conducted and without any report made by PW.2 registered the case. PW.2-the District Social Welfare Officer without conducting a proper enquiry and without enquiring the appellants/ accused, by placing reliance on the FIR, had held that there was a demand of dowry.
iii. The trial Court had failed to take note that PW.6 is the family friend of the complainant is an interested witness and his evidence is also in the nature of a hearsay witness. Further, PW.6 had stated that he was not aware as to whether the appellants/accused demanded 5/21 http://www.judis.nic.in Crl.A.No.341 of 2010 dowry or not. Further, excepting the oral evidence of PW.1 ; her parents-PW2 and PW3 and her maternal aunt-PW.5, no other independent witnesses have been examined to support the prosecution case. Further, taking into consideration the evidence of the witnesses in entirety, they do not make out a case against the appellants/accused for offence under Sections 498 A, 307 IPC and Section 4 of the Dowry Prohibition Act.
iv. The learned trial Judge had failed to take note that as per FIR, the alleged occurrence took place between 06.06.2008 [the date of marriage] and 01.01.2009, the date on which the alleged attempt was made on the life of the PW1; by opening the gas cylinder, whereas the complaint had been preferred to the respondent/police only on 23.06.2009 after about 5 ½ months.
v. Further, it is the admitted evidence of PW.1, PW.3, PW.4 and PW.5 that the husband of PW.1/A-1 had come to the parental home of PW.1 on numerous occasions after 01.01.2009 and none of the witnesses have spoken that she had discussed about the incident which took place on 01.01.2009 to them, thereby making the evidence of PW1 with regard to the alleged attempt on her life, improbable and it is common and natural that such an incident could not have happened on 01.01.2009 and if really such an incident had taken place, as stated by P.W.1, It could have been immediately brought to the knowledge of her parents ; whereas strangely, the 6/21 http://www.judis.nic.in Crl.A.No.341 of 2010 prosecution has let in the evidence of PW.6, the family friend of PW3/the father of PW1 that PW1 informed him over phone and he had informed it to PW.3. No proper investigation had been conducted by the respondent police with regard to the alleged incident of attempt to murder PW.1, more especially when the investigation has been done at the house of the appellants/accused after a period of after 6 months.
vi. The trial Court had further failed to consider Exs.D1 to D3 marked on behalf of the appellants. Exs.D1 to D3 would falsify the entire case of the prosecution. It would prove that the evidence of witnesses are not only self contrary but also contradictory with each other. He would submit the Ex.D1, counter filed by PW.1 before the Family Court in the petition filed for restoration of conjugal rights would falsify her own case. Two contradictory versions have been stated by PW1. The trial Court without taking into consideration the contradictions in the evidences and also without taking into consideration the attended circumstances, had erred in convicting the appellants.
6. Mr. N. Manokaran, learned counsel for the appellants would submit that A-1/Ragupathy is no more and that A2- Padmavathy is the mother of A1. He would further submit that the allegations against the second appellant are general in nature and not specific.
7. Per contra, the learned Additional Public Prosecutor would submit that the prosecution had let in categoric evidence to prove that the victim PW.1 was 7/21 http://www.judis.nic.in Crl.A.No.341 of 2010 subjected to cruelty by the appellants. He would further submit that a payment of Rs.2 lakhs had been demanded as dowry after the marriage and that though the amount was stated to have been asked for by the first appellant/A-1 [husband of the victim/PW1] for running a financial business, it would also amount to demand of dowry.
8. The learned counsel for the appellants would submit that in order to make out a case for 498 (A) IPC, the prosecution should satisfy the essential ingredients of Section 498 (A) IPC and the prosecution has to prove that the husband or the relative of the husband of a woman, subjects such woman to cruelty any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. In this case absolutely no evidence had been let in to prove that PW.1 was subjected to cruelty.
9. In respect of his contention, the learned counsel would rely on the judgment of the Hon'ble Apex Court reported in (2009) 13 SCC 330 [ Manju Ram Kalita V. State of Assam].
10. Mr.K.Prabakar, learned Additional Public Prosecutor appearing for the respondent police would submit that a demand otherwise made after marriage would amount to demand a dowry and he would rely on the 8/21 http://www.judis.nic.in Crl.A.No.341 of 2010 judgment of the Hon'ble Apex Court reported in 2011 (4) SCC 427 [Bachni Devi V.State of Haryana] .
11.Per contra the learned counsel for the appellants would submit that the facts of the present case are different from the facts of the case in the judgment relied on by the prosecution and he would submit that admittedly, in this case, there is absolutely no evidence to show that such a demand was made by the appellants.
12.I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the evidence available on record and also perused the impugned judgment of conviction.
13.The points for consideration is that whether the case of the prosecution has been proved by adducing cogent evidence and whether the evidence of the witnesses taken in entirety, make out the case against the appellants for offence alleged and whether the prosecution has proved the case beyond reasonable doubts?
14.While analysing the evidence, PW1/Narayani, had deposed that she was residing with her parents at Ponnnammapet, Salem along with her elder sister, younger sister and one younger brother. She had further stated that her father had retired from the Transport Department and she had completed a B.Com Degree and Diploma in Co-operative and that A1 is her husband and A2 is her mother-in-law and that the marriage between her and A1 took place on 06.06.2009 at Perumal Koil at Erode and the marriage invitation was marked as Ex.P1. At the time of her marriage, her parents had 9/21 http://www.judis.nic.in Crl.A.No.341 of 2010 given 15 sovereigns of gold jewels to her and had also given one sovereigns of gold jewel to A1 and further, they have also given household articles and that after the marriage she was living as a joint family with A1 and his family members, at NGO colony, Moolapallayam at Erode. At the time of marriage, it was informed to her that husband was working in S.G.S. Builders contract and that he had gone to work for 2 months and thereafter, he did not go to work and was at home only. She had further stated that from the date of marriage itself, A1 and A2 had demanded money from her. It is her further evidence that on 01.01.2009, A2 had kept the gas cylinder opened with an attempt to murder her and A1 demanded Rs.2 lakhs for starting a money lending business. Her further evidence is that her parents took her to their house when she was in her matrimonial home and that, A1 and A2 had demanded money from them and her parents agreed to arrange for meeting the demand during the time of Pongal. Her further evidence is that during Pongal, she had gone to her parents house along with A1 and came back to the matrimonial house on 14.01.2009 and at that time, the A1 and A2 abused her with filthy language and demanded money. Her further evidence is that her father-in-law had passed away on 24.01.2009, and that on 04.02.2009, she had informed PW.6 over phone that the accused attempted to murder her and asked him to inform her parents to take her back and that on the same day, her parents had come and agreed to pay the demanded money within 20 days. Thereafter, A1 and A2 had come to her parental house and demanded money and threatened her. Thereby, P.W.1 had prepared a 10/21 http://www.judis.nic.in Crl.A.No.341 of 2010 complaint on 20.06.2009 and presented it to the Commissioner on 23.06.2009, based on which, the case was registered. The complaint was marked as Ex.P.2.
15.PW.2 is the District Social Welfare Officer, and she had stated that on 20.06.2009, she had received a complaint from All Women Police Station, Ammapet and that, she had sent summons to the complainant and the accused to appear before her on 09.07.2009. She had further stated that one Rajkumar, brother of the first accused appeared before her and informed her that A1 and A2 were arrested and remanded to custody in connection with the case in Cr.No.1090/2009, registered by Ammapet Police Station and thereafter since the accused did not appear before her, she had examined the complainant on 09.07.2009 and obtained her statement and sent the report to the respondent stating that the complainant was affected due to the dowry demand. The report was marked as Ex.P3.
16.PW3 is the mother of PW1 and PW4 is the father of the PW1. They have corroborated the evidence of PW1. They had further stated that on 04.02.2009, PW1 had informed PW6 about having been harassed in her matrimonial home, who in turn informed the same to P.Ws.3 and 4 and that they went to the matrimonial home and brought her back to Salem.
17.P.W.5 is the sister of P.W.4. She had also spoken about the demand of dowry made by A-1 and A-2 and also the harassment meted out by P.W.1 on 04.02.2009, in particular, Rs.2 lakhs and that, two months thereafter, the accused came to the parental home of P.W.1 and picked up a quarrel. She 11/21 http://www.judis.nic.in Crl.A.No.341 of 2010 had further deposed that P.W.1 had given a complaint to the Commissioner.
18.PW.6 had deposed that PW1 had called him on 04.02.2009 and had informed him that the accused had demanded the amount from her and harassed her and that, PW6, in turn had informed the same to PW3, father of PW1.
19.PW7 is the Investigating Officer. He had stated that on 28.06.2009, he received the complaint of PW1 endorsed by the Commissioner of Police, Salem city and that after receiving the same, he registered the case in Cr.No.1093/2009 for the offence under Sections 498 A IPC and 307 IPC and Section 4 of Dowry Prohibition Act and under Section 498 r/w 107 of IPC and 506(ii) IPC.FIR was marked as Ex.P4. On the same day, he had sent the FIR to the Head Quarters and further, on the same day at 8.15 p.m., he visited the place of occurrence and prepared observation mahazar and rough sketch [Ex.P5]. Thereafter, he had examined the witnesses PW1, PW3, PW4, PW5 and one Govindaraj and recorded their statements. On 29.06.2009, he had examined PW6 and recorded his statement. On the same day at 3.00 p.m., he arrested A1 and A2 at the bus stand, Erode. Thereafter, he had sent A1 and A2 to the Court for remand. On 17.08.2009 he had referred the complaint to the District Social Welfare Officer for carrying out an enquiry in respect of dowry demand and thereafter, he had after completion of investigation and filed the charge sheet against the first accused for the offences under sections 498-A , 307 of IPC and section 4 of 12/21 http://www.judis.nic.in Crl.A.No.341 of 2010 Dowry Prohibition Act and charge sheet against A2 for offences under Sections 498 A r/w 109 of IPC and Section4 of Dowry Prohibition Act.
20.While analysing the evidence on record, PW1's evidence with regard to the harassment is general and vague. Further, it is the evidence of PW1 that an attempt on her life was made on 01.01.2009 when she was in the matrimonial house and that too, by way of A-2 opening the gas cylinder and attempting to kill her. Further, it is her evidence that it was informed to her that the first accused was working in the SGS Builders whereas it is not so and after two months of marriage he did not go to the work. Whereas, her evidence had been contradicted in the counter under Ex.D1 filed by her before the Family Court in the petition for restoration of conjugal rights filed by the first accused a total contradictory story had been projected by her. At one point of time, she had stated that the first accused was suffering from aliments and in the latter part, she had stated that the first accused was a monthly employee in SGS Builder, earning Rs.10,000/- per month as salary and he is having property worth more than Rs.10 lakhs., Nothing had been stated in the counter about the attempt made on her life or that she was harassed in her matrimonial house on account of demand of dowry and no other supporting or independent evidence has also been let in by her to show that she was subjected to cruelty contemplated under section 498 A IPC. Further, it was admitted during her cross-examination that she had not stated anything about the accused asking / demanding dowry in the complaint.
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21.Looking into the evidence of PW2, PW2 has stated that she had not conducted the enquiry, since FIR was filed even before the matter was referred to her for enquiry. She has also not done any independent enquiry by calling the witnesses from nearby houses of the accused to find out whether there was any dowry demand.
22.PW3, PW4 and PW5 are respectively father, mother and her maternal aunt o fPW1 and though they have corroborated the evidence of PW1, their evidence is only general in nature and it is only a hearsay in nature and no specific allegations have been made against the accused for having made any demand of dowry or having to committed harassment or cruelty on PW1.
23.Coming to the evidence of PW6 he is a hearsay witness and his evidence is not also not categorical as to whether the demand made was towards dowry.
24.PW7 had deposed that he had written the complaint form on receipt of complaint from PW1 and registered a case in Cr.No.1093/2009 and the FIR was marked as Ex.P4 and on the same day he had gone to Erode and prepared the observation mahazar and rough sketch [Ex.P5] and he had examined the witnesses on the same day and on 20.09.2009 they arrested the accused and thereafter, brought them to Ammapet Police Station on the same day and sent them to remand. Thereafter, on 17.08.2009 he had sent requisition to the District Social Welfare Officer to conduct an enquiry and that requisition letter was marked as Ex.D2. Thereafter, on 18.08.2009, he had obtained the report from the District Social Welfare Officer and after 14/21 http://www.judis.nic.in Crl.A.No.341 of 2010 completing the investigation on 20.06.2009 and after obtaining the opinion had filed the final report against them. During his cross examination he had admitted that he had received the complaint from the City commissioner of Police on 23.06.2009 and immediately thereafter, he had registered the case and he had further stated that he received Ex.P2 and on being forwarded by the commissioner of Police, Salem city on 23.06.2009 with a direction to register and investigate the case and to complete within 5 days and that based on the complaint he had registered a case on 28.06.2009. He had further admitted that no where in the complaint, did the complainant made allegation against the accused with regard to the demand of dowry and that he had admitted to lot of corrections in the complaint. Further he had stated that there was no specific allegations with regard to harassment or cruelty and that no explanation was also given by the complainant for the delay in giving the complaint. However, he had admitted that the case has been registered even prior to the obtaining a statement from PW2 the District Social Welfare Officer.
25.In the case reported in 2009 [13] SCC 330 [Manju Ram Kalita V. State of Assam], the Hon'ble Supreme Court has held hereunder:
13. The provisions of Section 498-A IPC read as under:
“498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for 15/21 http://www.judis.nic.in Crl.A.No.341 of 2010 a term which may extend to three years and shall also be liable to fine.
Explanation.—For the purposes of this section, ‘cruelty’ means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” Cruelty has been defined by the Explanation added to the section itself. The basic ingredients of Section 498-A IPC are cruelty and harassment.
14. In the instant case, as the allegation of demand of dowry is not there, we are not concerned with clause (b) of the Explanation. The elements of cruelty so far as clause (a) is concerned, have been classified as follows:
(i) any “wilful” conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(ii) any “wilful” conduct which is likely to cause grave injury to the woman; or
(iii) any “wilful” act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.
15. In S. Hanumantha Rao v. S. Ramani [(1999) 3 SCC 620 : AIR 1999 SC 1318] this Court considered the meaning of cruelty in the context of the provisions under Section 13 of the Hindu Marriage Act, 1955 and observed that: (SCC p. 624, para 8) 16/21 http://www.judis.nic.in Crl.A.No.341 of 2010 “8. … Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.”
16. In V. Bhagat v. D. Bhagat [(1994) 1 SCC 337 : AIR 1994 SC 710] this Court while dealing with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act, observed as under: (SCC pp. 347 & 349, paras 16-
17) “16. … It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.
17. … ‘18. … The context and the set-up in which the word “cruelty” has been used in the section, seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. …’ [Ed.: As observed in Shobha 17/21 http://www.judis.nic.in Crl.A.No.341 of 2010 Rani v. Madhukar Reddi, (1988) 1 SCC 105, pp. 114-15, para 18.] ”
17. In Mohd. Hoshan v. State of A.P. [(2002) 7 SCC 414 : 2002 SCC (Cri) 1765] this Court while dealing with the similar issue held that mental or physical torture should be continuously practised by the accused on the wife. The Court further observed as under: (SCC p. 418, para 6) “6. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education, etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not.”
18. In Raj Rani v. State (Delhi Admn.) [(2000) 10 SCC 662 : 2001 SCC (Cri) 1518 : AIR 2000 SC 3559] this Court held that while considering the case of cruelty in the context of the provisions of Section 498-A IPC, the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.
19. In Sushil Kumar Sharma v. Union of India [(2005) 6 SCC 281 : 2005 SCC (Cri) 1473 : AIR 2005 SC 3100] this Court explained the distinction of cruelty as provided under Sections 306 and 498-A IPC observing that under Section 498-A cruelty committed by the husband or his relation drives the woman to commit suicide, etc. while under Section 306 IPC, suicide is abated (sic abetted) and intended. Therefore, there is a basic difference of the intention in application of the said provisions.
20. In Girdhar Shankar Tawade v. State of Maharashtra [(2002) 5 SCC 177 : 2002 SCC (Cri) 971 :
AIR 2002 SC 2078] this Court held that “cruelty” has to be understood having a specific statutory meaning provided in Section 498-A IPC and there should be a case of continuous state of affairs of torture by one to another. 18/21 http://www.judis.nic.in Crl.A.No.341 of 2010
21. “Cruelty” for the purpose of Section 498-A IPC is to be established in the context of Section 498-A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as “cruelty” to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.''
26.While analysing the facts of the case with the above judgment, this Court is able to see that the prosecution has not proved the ingredients of Section 498 A IPC and Section 4 of Dowry Prohibition Act.
27.Further the evidence of PW1 with regard to an attempt being made on her on 01.01.2009 seems to be improbable and unbelievable. Her evidence with respect of the allegations of murder attempt being made on her on 01.01.2009 that too, by opening a gas cylinder and that, she having kept quite for one month without informing anybody, seems to be artificial and unbelievable. Her evidence is not trustworthy and credible. This court is of the opinion that the trial Court has not properly analysed the evidence to hold the accused guilty for the above offences alleged. Further, that to it is the evidence of Pws.3,4 and 5 that the accused came to house for Pongal and thereafter they have gone to the house of the accused for attending the funeral of the father of the accused and that subsequently, the accused have also come to her house and at no point of time PW.1 had revealed about the incident on 01.01.2009. Further, the manner in which the 19/21 http://www.judis.nic.in Crl.A.No.341 of 2010 A.D.JAGADISH CHANDIRA, J.
jrs investigation had been conducted seems to be predetermined and perfunctory . In the opinion of this Court, the trial Court has not properly analysed the evidence and thereby erred in convicting the appellant.
28.In view of the same, this Court is of the view that the judgment of the Court below warrants interference.
29.In the result, the criminal appeal is allowed and the impugned judgment dated 07.06.2010 in SC.No.23/2010 passed by the learned Sessions Judge, Mahila Court, Salem is set-aside. The 2nd appellant is acquitted of all charges leveled against her. Fine amount if any paid, shall be refunded to her. Bail bonds executed by her, shall stand discharged.
31.07.2019 Index:Yes/No Web:Yes/No Speaking/Non Speaking jrs To:
1. The Sessions Court, Mahila Court, Salem.
2. The Public Prosecutor, High Court, Madras 20/21 http://www.judis.nic.in Crl.A.No.341 of 2010 Crl.A.No.341 of 2010 21/21 http://www.judis.nic.in