Madras High Court
Sowri Raj vs The State Rep. By on 27 November, 2019
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.454 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 13.09.2019
Pronounced on : 27.11.2019
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.454 of 2010 and
Crl.M.P.No.9472 of 2019
Sowri Raj ... Appellant
Vs.
The State Rep. by,
Inspector of Police,
Railway Police Station,
Egmore.
Chennai-600 008. ... Respondent
PRAYER: Criminal Appeal filed under Section 378 of the Code of Criminal
Procedure, to allow this appal by setting aside the Judgment dated
15.07.2010 in S.C.no.224 of 2008 on the file of Learned Magalir
Neethimandram, Chennai convicting the appellant under Section 498A I.P.C
and sentenced him to undergo 3 years rigorous imprisonment and also to
pay fine of Rs.1,000/- in default to undergo simple imprisonment for two
months and also convicted under Section 307 I.P.C and to undergo rigorous
imprisonment for 7 years and to pay fine of Rs.25,000/- in default to
undergo simple imprisonment for 2 years and acquit the appellant.
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http://www.judis.nic.in
Crl.A.No.454 of 2010
For Appellant : Dr.G.Krishnamurthy
For Respondent : M/s.T.P.Savitha
Government Advocate [Crl.Side]
*****
JUDGMENT
This appeal arises out of the conviction and sentence imposed by the learned Sessions Judge, Magalir Neethimandram, Chennai in S.C.No.224 of 2008 dated 15.07.2010. The appellant was tried for the offence punishable under Section 468(A) and 307 IPC. The learned trial Judge has convicted the appellant for offence under Section 489(A) of IPC and sentenced him to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/- in default, sentenced to undergo two months simple imprisonment and for the offence under Section 307 of IPC, the appellant sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.25,000/- in default to undergo simple imprisonment for two years. The above sentences were ordered to run concurrently.
2.The background facts, as projected by the prosecution are as follows:
2.1.The Inspector of Police, Egmore Railway Police 2/17 http://www.judis.nic.in Crl.A.No.454 of 2010 Station/respondent filed charge sheet for the offence under Section 498(A) and 307 of IPC against the appellant in Crime No.500 of 2006. The appellant and the victim Devi loved each other and got married on 13.04.2006 at Kundrathur Visal Kalyana Mandapam. During the marriage, the victim/PW1 was given 1 ½ sovereigns gold jewels and it was agreed to give five sovereign jewels later. The victim/PW1 and the appellant lived in a rented house at Thirumullaivoyal. From the date of the marriage, the appellant used to insult the vicitm/PW1 for her physical disability and used to beat and ill-treat her. After three months of the marriage, unable to bear the harassment of the appellant, the victim left the appellant and started living with her parents. Thereafter, the parents/PW2 & PW3 of the victim lodged a complaint to Kundrathur Police. The police enquried both the appellant and the victim and compromised them. The appellant continued his harassment of demanding of five sovereign of gold jewels and again the victim left the appellant and had gone to her parents house. On 22.08.2006 at about 06.00 a.m., the appellant came to the parents house of PW1, informed them that he will take care of their daughter well and took her for outing to several places. On the same day, at about 10.15 p.m., near Saidapet Railway Station, the appellant and the victim were sitting beside the railway track, suddenly the appellant picked up quarrel 3/17 http://www.judis.nic.in Crl.A.No.454 of 2010 demanding five sovereigns of gold jewels, fight broke out, he forcibly removed Thali from her neck and pushed her into the track and ran away.
At that time, the train (Train No.6607) ran over her, due to which her left leg below the knee got amputated and she sustained greivious injuries on left leg and left hand. Thereafter, passersby informed the Station Master, Saidapet, who arranged victim to be taken to the Government Hospital for treatment. Hence, a case was registered in Crime No.500 of 2006 [Ex.P7] against the appellant for offence under Section 323, 307 and 498(A) of IPC. On completion of investigation and filing of charge sheet, the case, on committal was tried in S.C.No.224 of 2008 by the Sessions Judge, Magalir Neethimandram Chennai.
3.Before trial Court, prosecution examined 12 witnesses and marked 9 exhibits and seized 2 materials objects. None were examined and no exhibits were marked on the side of the defence.
3.1.PW1/victim studied upto 10th standard as a hosteler. When she was staying in hostel, the appellant and the victim loved each other. With the consent of the victim's parents, their marriage took place at Vishal Kalyana Mandapam, Kundrathur on 13.04.2006. At the time of marriage, 4/17 http://www.judis.nic.in Crl.A.No.454 of 2010 PW1 was given 1 ½ sovereigns of gold jewels and it was agreed to give five sovereigns of gold jewel later. After the marriage, PW1 and the appellant lived separately in a rented house at Thirumullaivoyal. PW1 is handicapped in her left leg right from her birth. After three months of the marriage, the harassment and torture of the appellant intensified and she was physically assaulted. Unable to bear the same, she left to her parents house. One month thereafter, the parents of PW1 lodged complaint to Kundrathur Police. The appellant called for enquiry by Kundrathur Police and a compromise arrived between them. The appellant took PW1 to his house at Kancheepuram, where they stayed only for three days. Thereafter, the appellant had chased her away by demanding five sovereigns of gold jewels and PW1 returned to her parents house. On 22.08.2006 at about 06.00 a.m, the appellant came to PW1's parents house, informed her parents/PW2 and PW3, took the victim/PW1 for outing and visited several places in and around Chennai. At about 10.15 p.m., the appellant took the victim to Saidapet Railway Station and made her to sit near the track and was chatting. The appellant picked up quarrel with her demanding five sovereigns of gold jewels, forcibly removed her Thali from her neck and pushed her into the track. The train which came nearby ran over her and her left leg below her knee got amputated.
5/17 http://www.judis.nic.in Crl.A.No.454 of 2010 3.2.PW2 and PW3 the father and mother of the victim/PW1, corroborated the version of PW1 and stated about the marriage of their daughter with appellant, continuous demand of dowry, harassment and physical torture of the appellant. Further, they also stated that on 22.08.2006, the appellant came to their house and took her daughter for outing. Thereafter, they got information from the hospital at about 11.00 p.m., that their daughter admitted was with amputation of left leg and injuries.
3.3.PW4, the Railway coolie at Chennai Park Railway Station used to admit the persons, who are injured in rail accident for medical treatment. On the date of occurrence, PW4 had taken PW1 to the Government Hospital, got admitted her for treatment.
3.4.PW5, the Station Master of Saidapet Railway Station stated that on 22.08.2006 at about 10.15 p.m., he received information that a person was injured by train No.6607, which was proceeding from Egmore to Erode. Further, PW5 made arrangement to send the victim to Chennai Park Station through train and informed the same to PW6.
6/17 http://www.judis.nic.in Crl.A.No.454 of 2010 3.5.PW6, the Station Master of Chennai Park Station stated that he received information from PW5 about the victim sustaining injuries by train. Further, PW6 arranged stretcher to send the victim to the Government Hospital through PW4.
3.6.PW7 is the witness for the observation mahazar [Ex.P4] and rough sketch [Ex.P8]. In his presence, amputated leg of the victim and blood stained stones [MO2] were recovered. PW8, the Casualty Medical Doctor attached to the Government Hospital has given treatment to PW1 and issued Accident Register [Ex.P5].
3.7.PW9, the Orthopedic Doctor attached to the Government Hospital on 22.08.2006 examined PW1 and issued wound certificate [Ex.P6]. PW10, Sub Inspector of Railway Police, Egmore on 23.08.2006 at about 05.30 a.m., on information visited the hospital, enquired and recorded the complaint [Ex.P1] of PW1 in the presence of PW2 and registered an F.I.R [Ex.P7] in Crime No.500 of 2006, for the offence under Sections 323, 307 and 498(A) of IPC.
3.8.PW11, the Inspector of Police on receipt of the information from 7/17 http://www.judis.nic.in Crl.A.No.454 of 2010 PW10 took up the investigation, visited the scene of occurrence, enquired PW1, who had stated about the harassment of the appellant demanding five sovereigns of gold jewels and forcibly removing Thali from her neck, pushing her onto the track and about the train running over and her left leg below her knee getting amputated. PW11 had examined the parents of the victim/PW2 and PW3 and the doctors who treated PW1, prepared rough sketch [Ex.P8] and seizure mahazar [Ex.P9]. Since the appellant was absconding, on information on 25.08.2006 at about 02.00 p.m., PW11 arrested the appellant in Koyembedu Bus Stand. During the custody of the police, the appellant had given a confession and the same was recorded. Thereafter, on his transfer he handed over the investigation to PW12.
3.9.PW12 had taken up investigation from PW11, obtained wound certificate [Ex.P6] from PW9 and on completion of investigation filed the charge sheet before the concerned Court.
4.The appellant was charged for the offence under Section 498(A) and 307 of IPC. On questioning under Section 313 Cr.P.C., appellant denied the charges. On appreciation of evidence, oral and documentary, the trial Court under Judgment dated 15.07.2010 in S.C.No.224 of 2008 convicted 8/17 http://www.judis.nic.in Crl.A.No.454 of 2010 the appellant. Against which the present appeal.
5.Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent.
6.The learned counsel for the appellant submitted that the appellant is not the reason for the injuries sustained by PW1. The marriage of the appellant and PW1 was a love marriage and they were living separately for three months. Thereafter, PW1 went to her parents house. It is admitted by PW1 and her parents/PW2 and PW3 about the appellant visiting PW1 in her house and staying there. The appellant was only trying to bring her to the reality of marriage life. PW1 understanding her mistakes had returned back to the matrimonial life. For some time the vicitm/PW1 was living along with the appellant's parents at Anagaputhur. Further, PW1 and her parents/PW2 and PW3 admitted that earlier they had given complaint against the appellant and taken back the entire Sreedhana articles. PW10/Railway Police, Egmore stated that he recorded the complaint [Ex.P1] from PW1 in the presence of PW3. PW2 has not whispered about PW10 recording any statement of PW1 in her presence and further signature of PW3 was not identified. Hence, the manner in which the complaint 9/17 http://www.judis.nic.in Crl.A.No.454 of 2010 came to be lodged creates suspicion.
7.The learned counsel for the appellant further submitted that PW10 recorded the oral statement of PW1 as complaint in the Government Hospital and the doctor, who treated PW1 have not attested that the patient was in fit state of mind to give complaint. There is no mention in the complaint that PW1 before affixing her signature, whether contents were read over to her and admitted to be true. Further, PW3, who is said to have attested the complaint [Ex.P1], does not speak about the same. Admittedly, there is no eye witness in this case except the statement of PW1. PW2 and PW3 the parents of PW1 were enimically deposed against the appellant. PW11 and PW12 the investigating officers as well as PW4 and the observation mahazar [Ex.P4] admitted that near the scene of occurrence there was movement of public, flats and shops were available. But, no independent witness have been examined in this case. PW8/Doctor admitted about the corrections and insertions in the Accident Register [Ex.P5]. On perusal of Ex.P6 issued by PW9, it is seen that it is only a casualty opinion form and there is no materials such as wound certificate, X-ray or any other medical records. Further, it is submitted that a compromise had been arrived between PW1 and the appellant and she had 10/17 http://www.judis.nic.in Crl.A.No.454 of 2010 filed affidavit to that effect. Subsequent to the breakage of her marriage with the appellant, she remarried and had two male children, happily settled with new life. Further, the victim/PW1 received permanent alimony from the appellant. The victim/PW1 is willing to compound offence and in view of the compromise, she was not interested in further prosecuting the appellant.
8.The learned counsel for the appellant relied upon the following decisions to substantiate his arguments:-
i) Unnikrishnan @ Unnikuttan Versus State of Kerala reported in 2017 (2) MWN (Cr.) 229 (SC). It is held as follows:-
“Petitioner convicted under Section 394, a non- compoundable offence under Section 320, Cr.P.C – Sentenced to two years' rigorous imprisonment – Matter settled between parties pending SLP and Compromise entered into – Joint Application for permission to compound offence filed – Offence though non-compoundable, considering Settlement arrived between parties, compounding of offence permitted.”
ii) Jitendra Raghuvanshi and others Versus Babita Raghuvanshi 11/17 http://www.judis.nic.in Crl.A.No.454 of 2010 and another reported in (2013) 4 Supreme Court Cases 58. It is held as follows:-
“Hence, even in non-compoundable offences pertaining to matrimonial disputes, if Court is satisfied that parties have settled the disputes amicably and without any pressure, then for purpose of securing ends of justice, FIR or complaint or subsequent criminal proceedings in respect of said offences, held, can be quashed under Section 482 Cr.P.C.”
9.Per contra, the learned Additional Public Prosecutor appearing on behalf of the respondent Police filed written arguments and made submissions that after completion of the detailed enquiry, charge sheet came to be filed against the appellant and thereafter it was committed to the Court of Sessions, Magalir Neethimandram, Chennai. In this case during trial 12 witnesses have been examined, 9 exhibits marked and two material objects were seized. PW1 stated that she was pushed onto the track by the appellant, due to which she was ran over by a moving train and sustained amputation of her left leg below the knee. PW2 & PW3 the parents of PW1 have corroborated the version of PW1.
10.The learned Additional Public Prosecutor further stated about the 12/17 http://www.judis.nic.in Crl.A.No.454 of 2010 marriage between PW1 and the appellant. During the marriage, there was demand of 5 sovereigns of gold jewels as dowry, which the parents of PW1 was unable to fulfill immediately. Due to which, her daughter/PW1 was assaulted, harassed, subjected to cruelty by the appellant and she went and stayed with PW2 and PW3. On the fateful day, the appellant came to the house of the victim, took her for outing and during late night of 11.00 p.m., the parents of the victim received an information from the hospital that their daughter was admitted with injuries. The next day morning at about 05.00 a.m, they reached the hospital. PW4, railway coolie took PW1 and got her admitted in the hospital. Further, PW5 and PW6/Station Masters have stated that the victim sustained amputation and admitted in the hospital. PW7 is the witness for Observation Mahazar [Ex.P4], PW8 is the Casualty Medical Doctor and PW9 is the Orthopedic doctor examined and issued Wound Certificate [Ex.P6]. PW10 is the Sub Inspector of Police, who went to the hospital, recorded the statement of PW1, registered F.I.R [Ex.P7] in Crime No.500 of 2006. PW11 and PW12 are the Investigating Officer, conducted investigation, examined the witnesses, visited the scene of occurrence, prepared mahazars, obtained opinion from the doctors and filed the charge sheet in this case. All these witnesses have supported the case of the prosecution. The trial Court on proper appreciation of the 13/17 http://www.judis.nic.in Crl.A.No.454 of 2010 evidence, had rightly convicted the appellant.
11.Considering the rival submissions and on perusal of the available materials, it is seen that the only evidence in this case is that of PW1, who sustained amputation of her left leg below the knee. The marriage of PW1 and the appellant was a love marriage. They lived as husband and wife for three months and thereafter got separated. On 22.08.2006, the appellant had gone to the house of PW1, took the victim/PW1 to various places and thereafter at about 10.15 p.m., they were sitting near the track in Saidapet Railway Station and chatting. Suddenly, the appellant picked up a quarrel with the victim and pushed her onto the track. At that time, a moving train ran over her and PW1 got amputation of her left leg. Further, there is no evidence to show that the appellant deliberately pushed her before the running train. Had it been the case, the survival of sustaining injuries by PW1 is not possible. From Accident Register [Ex.P5], it mentioned that the amputation sustained by the victim was sustained by falling from the train, which was later corrected and admitted by PW8/Casualty Medical Doctor. Further, due to the breakage of marriage, PW2 and PW3 enimically deposed against the appellant and the possibility of brooking vengeance is loom and large.
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12.The victim/PW1 appeared before this Court and filed affidavit, reiterating the compromise and seeking compounding of offences against the appellant. The Hon'ble Supreme Court in the case of Gian Singh Versus State of Punjab & Another reported in (2012) 10 SCC 303 had observed as follows:-
“Where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the 15/17 http://www.judis.nic.in Crl.A.No.454 of 2010 High Court shall be well within its jurisdiction to quash the criminal proceeding.”
13.In the result, the conviction and sentence imposed on the appellant in S.C.No.224 of 2008 by the learned Sessions Judge, Magalir Neethimandram, Chennai are set-aside and this Criminal Appeal is allowed. The appellant is acquitted of all the charges levelled against him. The appellant is directed to be released forthwith if he is in jail, unless his custody is required in connection with any other case. Consequently, the connected miscellaneous petition is also closed. No costs.
27.11.2019 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 To
1.The Sessions Judge, Magalir Neethimandram, Chennai.
2.The Inspector of Police, Railway Police Station, Egmore.
3.The Public Prosecutor, High Court, Madras.
16/17 http://www.judis.nic.in Crl.A.No.454 of 2010 M.NIRMAL KUMAR, J.
vv2 PRE-DELIVERY JUDGEMENT IN Crl.A.No.454 of 2010 27.11.2019 17/17 http://www.judis.nic.in