Madras High Court
Manikandan vs The State Represented By on 28 February, 2023
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.486 of
2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 09.02.2023
PRONOUNCED ON : 28.02.2023
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.486 of 2020
Manikandan .. Appellant
.Vs.
The State represented by
Inspector of Police,
Pennadam Police Station,
Cuddalore District,
Crime No.397 of 2016. .. Respondent
Criminal Appeal filed under Section 374 of Code of Criminal
Procedure to set aside the conviction and sentence imposed in
S.C.No.347 of 2017 dated 6.11.2020 on the file of the Court of Sessions,
Mahila Court, Cuddalore.
For Appellant : Mr.R.Sankarasubbu
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed against the judgment of conviction and sentence dated 6.11.2020 passed in S.C.No.347 of 2017 by the learned Sessions Judge, Mahila Court, Cuddalore. https://www.mhc.tn.gov.in/judis Page No.1/23 Crl.A.No.486 of 2020
2. The case of the prosecution is that the accused married the deceased on 15.09.2013 and at that time of marriage, the parents of the deceased gave three sovereigns of gold ornaments, sridhana properties worth about Rs.50,000/- and one silver anklet to the appellant, but he was not satisfied with the above and demanded a pulsar motorcycle. Since the parents of the deceased could not afford the same, they made a request that they will give the said motorcycle later. After marriage, the accused, the deceased and the parents of the accused went to Kerala and worked in a brick kiln for six months and after returning to their native, the accused demanding the deceased to hand over the amount of Rs.40,000/- which was earned in Kerala, pulsar motorcycle and jewels assaulted the deceased on her left fingers, as a result, she suffered fracture, for which, a complaint was registered against the accused in C.S.R.No.64 of 2014. Since the case was amicably conciliated, she went back to her matrimonial home. In the year 2015, again the deceased preferred a complaint against the accused and the same was registered as C.S.R.No.155 of 2015 and after conciliation, again she went back to her matrimonial home. Thereafter, the appellant continuously harassed the deceased for dowry. In the year 2016, the deceased went to her parental https://www.mhc.tn.gov.in/judis Page No.2/23 Crl.A.No.486 of 2020 home. After three months, the parents of the deceased and others pacified her and she went back to her matrimonial home. Again, the accused harassed the deceased demanding pulsar motor cycle and therefore, the deceased came to her parents home. Subsequently, the parents of the deceased pacified the accused and promised him that they will give the same at the time of baby shower function and sent her with the accused. However, the appellant had continuously harassed the deceased and at one point of time, the deceased got frustrated and decided to end her life. On 08.12.2016, at 9.00 a.m in the house of the accused, the deceased by pouring kerosene all over her body, set fire and as a result, she sustained burn injuries all over her body and succumbed to death on 09.12.2016 at 4.00 a.m. Hence, a complaint/Ex.P1 was registered against the appellant/accused.
3. On the complaint given by the de-facto complainant/P.W.1, the respondent/Police registered a case in Crime No.397 of 2016 against the appellant for the offences under Section 174(3) Cr.P.C., later altered into Section 498 A and 304 B IPC. On completion of the investigation, the respondent/Police laid a charge sheet before the learned District Munsif- cum-Judicial Magistrate, Tittagudi in P.R.C.No.29 of 2017. After https://www.mhc.tn.gov.in/judis Page No.3/23 Crl.A.No.486 of 2020 completing the formalities under Section 207 Cr.P.C., the case was committed to the learned Principal District and Sessions Judge, Cuddalore, since the offences are against a woman, which are exclusively triable by the Court of Session. The learned Principal District and Sessions Judge made over the case to the learned Sessions Judge, Cuddalore and the same was taken on file in S.C.No.347 of 2017 and charges were framed against the appellant for the offences under Sections 498 A and 304 B IPC.
4. In order to prove its case before the trial Court, on the side of the prosecution, as many as 13 witnesses were examined as P.W.1 to P.W.13 and 9 documents were marked as Exs.P1 to P9. No material objects were exhibited.
5. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the accused and he was questioned under Section 313 Cr.P.C., wherein he denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, no oral evidence was adduced and no documentary evidence was produced. https://www.mhc.tn.gov.in/judis Page No.4/23 Crl.A.No.486 of 2020
6. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record found that the accused was found guilty for the offences under Sections 498 A and 304 B IPC and he was convicted and sentenced as under :
Offence Sentence
Section 498 A IPC to undergo simple imprisonment for
a period of three years and to pay a
fine of Rs.10,000/-, in default, to
undergo further period of six months
simple imprisonment
Section 304 B IPC to undergo simple imprisonment for
a period of ten years.
Both the sentences were ordered to
be run concurrently. The period
of detention, if any, already
undergone by the accused was
ordered to be set off under Section
428 Cr.P.C.
7. Challenging the said conviction and sentences, the appellant has filed the present Appeal before this Court.
8.1 The learned counsel for the appellant submitted that there was a delay in lodging the complaint/Ex.P1. The date of occurrence was said to have been taken place on 08.12.2016 at 9.00 a.m, whereas the https://www.mhc.tn.gov.in/judis Page No.5/23 Crl.A.No.486 of 2020 complaint was registered only on 09.12.2016 at 11.00 a.m. Therefore, there was a delay of 26 hours in filing the complaint, which creates suspicion on the prosecution case. The prosecution witnesses P.W.1 to P.W.5 are interested witnesses as they are close relatives of the deceased and their evidence is fatal to the case of the prosecution. He further submitted that the marriage between the appellant and deceased was solemnized on 15.09.2013 and it was a love marriage and hence, there was no demand of dowry and the alleged demand is nothing but a concocted story. Before marriage, the deceased attempted to commit suicide, since her parents had objected marring the appellant. As she was weak, had unbearable stomach pain, and also she could not begot a child, she decided to end her life. Thereafter, she set herself on fire, after pouring kerosene on her body. After the incident, the father-in-law and mother-in-law of the deceased admitted her in the hospital. Further, no specific incident had occurred soon before the death of the deceased. Therefore, the important ingredients of Section 304 B IPC is absent in the present case. To attract Section 304 B IPC, the prosecution has to establish that soon before the death, the deceased was subjected to cruelty and harassment by her husband or any relatives of her husband in https://www.mhc.tn.gov.in/judis Page No.6/23 Crl.A.No.486 of 2020 connection, with any demand of dowry, however, in the case on hand, the prosecution has not proved its case beyond all reasonable doubt.
8.2 The learned counsel for the appellant further submitted that the Revenue Divisional Officer conducted inquest and examined the prosecution witnesses and some others. At that time, the appellant gave a statement that when the deceased was admitted in the hospital, her dying declaration was recorded by Virudhachalam Police in the presence of the Doctor, wherein, she has stated that the appellant was not responsible for her death and he did not harass her and she set fire on her, due to miscarriage of her foetus and also due to the mental agony. However, the prosecution failed to secure the said document and also failed to examine the Doctor, which is fatal to the case of the prosecution. When the prosecution withheld the best evidence, the Court can draw adverse inference against the prosecution, which is in favour of the accused. If the prosecution failed to prove its case beyond reasonable doubt, the benefit of doubt should be extended in favour of the accused. The trial Court failed to appreciate the entire evidence and also failed to consider the fact that there was no occasion demanding dowry, since the marriage https://www.mhc.tn.gov.in/judis Page No.7/23 Crl.A.No.486 of 2020 between the appellant and the deceased was a love marriage. Further, the prosecution has not proved that soon before the death, there was a dowry demand and harassment, due to which the deceased died. Thus, the main ingredients of Section 304B IPC is absent. Therefore, the conviction rendered by the trial Court is perverse, which warrants interference of this Court.
8.3 In support of his contention the learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court in the case of State of Haryana Vs. Angoori Devi and Another reported in (2020) 18 SCC 773 wherein it is stated that under Section 304-B IPC prosecution cannot escape from discharging its burden of proving that harassment or cruelty was related to demand for dowry soon before the death. However, in the case on hand, the prosecution failed to establish that soon before the death, the deceased was subjected to cruelty and harassment demanding dowry.
9. Per contra, the learned Additional Public Prosecutor appearing for the respondent submitted that the appellant and the deceased loved https://www.mhc.tn.gov.in/judis Page No.8/23 Crl.A.No.486 of 2020 each other and when the same was came to the knowledge of their parents, the marriage between them was solemnized on 15.09.2013. Therefore, their marriage is not a love marriage and it is an arranged marriage. At the time of marriage, the parents of the deceased gave three sovereigns of gold jewels, household articles and one silver anklet as dowry to the appellant. However, the appellant being not satisfied with the same, demanded a pulsar motorcycle. Since the parents of the deceased could not provide the same, from the day one of their marriage, the appellant continuously harassed the deceased and also demanded the same. Therefore, there was a frequent quarrel arose between them and on three occasions i.e. in the year 2014, 2015 and 2016 the deceased gave complaints against the appellant and the same were ended in conciliation. Even thereafter, the accused continuously harassed the deceased demanding pulsar motorcycle. Even though, the parents of the deceased arranged a sum Rs.50,000/- to buy a motorcycle, however, the appellant refused to receive the same and insisted them to give Rs.1 lakh to purchase higher value motorcycle. Due to continuous physical and mental harassment for demand of dowry, within seven years of marriage, the deceased committed suicide by pouring kerosene all over her body and https://www.mhc.tn.gov.in/judis Page No.9/23 Crl.A.No.486 of 2020 set her fire. There is overwhelming evidence for demand of dowry by the accused. Further, P.Ws.1 to 5 had given evidence to establish the prosecution theory. In order to substantiate the case of the prosecution, the mother of the deceased, who is the de-facto complainant was examined as P.W.1; sister of the victim was examined as PW.2; the junior paternal uncle was examined as P.W.3 and the father of the deceased was examined as P.W.5. P.W.4, who is a known person to P.W.5 is an independent witness. From the evidence of P.Ws.1 to 5, the prosecution proved the dowry demand, mental and physical cruelty and harassment caused by the appellant to the deceased. It is to be seen that if there was no demand of dowry and harassment, a woman, who married a loved one, could not go to the extent of giving complaints against her husband. The trial Court after appreciating the entire materials, convicted and sentenced the appellant. There is no merit in the appeal and the same is liable to be dismissed.
10. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent and also perused the materials available on record.
https://www.mhc.tn.gov.in/judis Page No.10/23 Crl.A.No.486 of 2020
11. Admittedly, the marriage between the appellant and the deceased took place on 15.09.2013 and she died on 09.12.2016, i.e. within seven years of her marriage. According to the prosecution, from the date of the marriage till before the death of the deceased, the accused meted out cruelty on the deceased in connection with demand of dowry for motorcycle. At one point of time, the deceased could not tolerate the harassment and she decided to end her life by self-immolation and she succumbed to burn injuries.
12.The de-facto complainant/mother of the deceased was examined as P.W.2 and she has categorically stated that the appellant and the deceased loved each other and both family agreeing for their love, performed marriage. After their marriage, there was altercation between them demanding higher value motorcycle. The father of the deceased purchased the vehicle worth about Rs.50,000/-, but the accused refused to receive the same, stating that he did not want the vehicle worth about Rs.50,000/- and he wanted a vehicle worth about Rs.1,00,000/-. She further deposed that the accused burnt the sarees of the deceased in front of the house. The appellant and her parents continuously harassed and tortured the deceased demanding dowry. On that one fateful day, the https://www.mhc.tn.gov.in/judis Page No.11/23 Crl.A.No.486 of 2020 deceased pouring kerosene over her body, set her on fire before they reached. Thereafter, the deceased was taken to hospital and she came to know that the deceased died and hence, she gave a complaint/Ex.P1 against the accused.
13. P.W.2 is the sister of the deceased and she has clearly spoken about the continuous harassment and cruelty made by the appellant demanding dowry and the previous complaints preferred against the appellant. The evidence of P.W.2 is corroborated with the evidence of P.W.1.
14. P.W.3 is the junior paternal uncle of the deceased and P.W.5 is the father of the deceased and they have clearly spoken about the continuous demand of dowry and harassment made by the appellant and their evidence are corroborated with the evidence of P.W.1.
15. P.W.4 is an independent witness and he has also clearly spoken about the continuous harassment made by the appellant in connection with demand of dowry for higher value motorcycle and his evidence also corroborated with the evidence of P.W.1.
16. On a perusal of the entire materials, it is seen that the marriage https://www.mhc.tn.gov.in/judis Page No.12/23 Crl.A.No.486 of 2020 between the appellant and deceased took place in the year 2013 and the deceased died in the year 2016 i.e. within seven years of marriage. The law presumes that when a married woman died unnaturally within seven years from the date of the marriage, such death is called as ''dowry death''. No doubt, the demand of dowry has to be proved in the manner known to law.
17.The learned counsel for the appellant vehemently contended that there was no demand of dowry soon before the death of the deceased. It is the case of the prosecution that the accused demanded higher value motorcycle as dowry from the deceased and her parents. P.W.1 and P.W.5 has stated that when a vehicle worth about Rs.50,000/- was purchased and given to the accused, he refused to receive the same and demanded higher value vehicle worth about Rs.1,00,000/- and they promised to provide the same at the time of baby shower function. P.W.2, P.W.3 and P.W.4 also deposed about the demand made by the appellant for purchasing higher value motorcycle. From the evidence of P.W.2, it is clear that on the previous day of incident, when the deceased set her fire the accused and his mother had altercation with the deceased by stating https://www.mhc.tn.gov.in/judis Page No.13/23 Crl.A.No.486 of 2020 that ''tisfhg;gpd;nghJ tz;o th';fp jUfpnwd; vd;W brhd;dhu;fns. ,g;;nghJ fUfiye;J tpl;lnj/////''. Therefore, the evidence of P.W.2 makes it clear that even before the death of the deceased, the accused meted out cruelty on the deceased in connection with demand for dowry of higher value vehicle from her parents. In the case on hand, from the evidence of P.W.1 to P.W.5 the prosecution proved that from the date of the marriage till soon before the death of the deceased, the accused continuously meted out cruelty on the deceased in connection with demanding dowry of higher value motorcycle. Further, it is seen that the marriage took place in the year 2013, the deceased died in the year 2016 and in the meanwhile, the deceased made three complainants (i.e in the year 2014, 2015 and 2016) against the appellant before the police station. However, after conciliation, the deceased was sent back to her matrimonial home and no action was taken against the said complaints. According to the evidence of P.W.1 to P.W.2 the demand and harassment made by the appellant is a continuous one and the prosecution has proved its case beyond reasonable doubts.
18. The main defence taken by the learned counsel for the appellant is that there was no dowry demand as the marriage between https://www.mhc.tn.gov.in/judis Page No.14/23 Crl.A.No.486 of 2020 the appellant and deceased is a love marriage. Due to unbearable stomach pain the deceased decided to end her life by setting fire on her. The appellant is not the cause for the death of the deceased. P.W.1/mother of the victim gave a complaint/Ex.P1 on 09.12.2016 and on the complaint, the law was set in motion. On the basis of the complaint, the case was initially registered under Section 174(3) Cr.P.C and after forwarding the case to the Revenue Divisional Officer for enquiry and obtaining the report from him, the death of the deceased was found to be a dowry death and the offences were altered into Sections 498-A and 304-B IPC. Therefore, it is amply clear that the deceased died due to dowry demand.
19. Further defence taken by the learned counsel for the appellant is that there was a delay in filing the complaint and the same was not properly explained by the prosecution. The deceased committed suicide in her matrimonial home at 8.12.2016 at 9.00 a.m and immediately she was admitted in the hospital and died on 09.12.2016 at 4.00 a.m. The complainant/P.W.1 did not expect that her daughter would die. Since it is a matrimonial issue, the complainant taught that in case, her daughter would survive from the injuries, she has to live with her husband. The deceased was suffering with burn injuries and she was admitted in the https://www.mhc.tn.gov.in/judis Page No.15/23 Crl.A.No.486 of 2020 hospital, in that situation, the mental condition of the de-facto complainant would be abnormal and she could not think about filing of the complaint. On 09.12.2016 at 4.00 a.m the deceased died and in that situation also a woman did not rush to the police station and gave a complaint. After some time, when she recovered from that situation, she preferred the complaint. Therefore, mere delay in filing the complaint is not fatal to the case of the prosecution.
20. The learned counsel for the appellant vehemently contended that the prosecution witnesses P.W.1 to P.W.5 are interested witnesses and their evidences are doubtful. It is true that P.Ws.1, 2, 3 and 5 are close relatives of the deceased, but the incident relating to cruelty, dowry demand and unnatural death, could be spoken only by the family members. However, P.W.4 being an independent witness has clearly stated about the cruelty and harassment made by the appellant in connection with dowry demand. It has to be noted that in the cross- examination of P.Ws.1 to 5 the defence did not succeed in eliciting any material to disbelieve the version of the witnesses. Considering the status of the family and frightened about the comments from the society, normally, a village woman did not speak about the demand of dowry and https://www.mhc.tn.gov.in/judis Page No.16/23 Crl.A.No.486 of 2020 causing cruelty by her husband to the strangers. Therefore, P.Ws.1, 2, 3 and 5 are best persons, who can speak about the demand of dowry and also causing cruelty of the appellant to the deceased.
21. Further, contention raised by the learned counsel for the appellant is that during R.D.O enquiry, the appellant has stated that while admitting the deceased at Government Hospital at Virudhachalm, the dying declaration of the deceased was obtained by the police officials, wherein, she has stated that the appellant was not responsible for her death and due to miscarriage of her foetus and unbearable stomach pain she committed suicide by setting afire. However, no such document was produced to prove the contention raised by the defence. Except the appellant, none of the witnesses have spoken that the deceased was in a condition to speak. While, she was admitted in the hospital and dying declaration was recorded by the police. According to the prosecution, on the date of incident, the deceased was conscious, naturally the parents should have stated about the same, however, in the R.D.O enquiry they have not stated that while admitting the deceased in the hospital, the deceased was conscious and she gave dying declaration before the police. https://www.mhc.tn.gov.in/judis Page No.17/23 Crl.A.No.486 of 2020
22. Further, P.W.8/Doctor who conducted postmortem on the deceased on 10.12.2016 at 3.10 p.m had found the following appearances and injuries :
''Moderately nourished female dead body, wrapped with gauze. On removal of the gauze, epidermal and dermo- epidermal burns with denuded cuticle exposing the reddish area seen over face, front of back of neck, front and back of chest, front and back of abdomen, front and back of both upper limbs and front and back of both lower limbs with sparing of both soles.
No other external injuries made out. Scalp, bones, membranes : intact. Brain : Edematous and surface.
Vessels Engorged. C/s:NAD. Base of skull : intact. Hyoid bone: intact. Larynx and trachea : congested and edematous.
Heart: Normal in size, C/s: all chambers contained clotted blood.
Valves : NAD. Coronary vessels : NAD. Great vessels :
NAD.
Lungs : Normal in size C/s. Congested. Stomach : contains 70 ml of green coloured fluid, no specific smell Mucosa: Congested https://www.mhc.tn.gov.in/judis Page No.18/23 Crl.A.No.486 of 2020 Intestines : Distended with gas. Liver, Spleen and both kidneys : Normal in size, C/s. Congested Bladder: empty, Uterus : Normal in size, C/s. Empty Pelvis and spinal column : intact'' P.W.8 has issued Ex.P3/postmortem certificate, in which he opined that the deceased died of shock due to burns. Therefore, considering the injuries sustained by the deceased, it is not possible for her to give statement before the Doctor or others and no materials were produced by the defence to establish their case.
23. On a perusal of the complaint/Ex.P1 it is seen that in the complaint, PW.1 has stated that the deceased suffered stomach pain often. Referring to this, the defence contended that due to stomach pain, the deceased committed suicide, even as the accused had taken a different stand, when he was questioned under Section 313(1)(b) Cr.P.C that the deceased committed suicide as the foetus got aborted. To substantiate the same, the defence did not put a suggestion before P.W.1 to P.W.5 that whether the deceased committed suicide due to stomach pain and therefore, the contention raised by the learned counsel for the appellant is rejected.
https://www.mhc.tn.gov.in/judis Page No.19/23 Crl.A.No.486 of 2020
24. This Court, being an appellate Court, as a final Court of fact finding in this case and it has to independently re-appreciate the entire evidence and give independent finding. Accordingly, this Court also thoroughly gone into the entire materials and re-appreciated the entire evidence on record.
25. Since it is a case based on the dowry death, the Court has to see as to whether main ingredients of Section 304 B IPC is proved by the prosecution beyond all reasonable doubt. On a combined reading of the entire materials, this Court finds that the deceased died of burns within seven years of marriage. In the case on hand, the prosecution has come out with a specific case that from the date of the marriage till before the death of the deceased, the appellant caused physical and mental harassment in connection with demand of dowry for higher value motorcycle. From the evidence of P.W.1 to P.W.5 the prosecution proved its case beyond reasonable doubt that soon before the death that there was an altercation regarding demand of dowry and causing cruelty on the deceased. Due to that harassment and cruelty regarding dowry https://www.mhc.tn.gov.in/judis Page No.20/23 Crl.A.No.486 of 2020 demand, the deceased went to the extent and set fire on her by pouring kerosene. Therefore, this Court finds that the main ingredients of Section 304 B IPC and Section 498 A IPC are clearly proved by the prosecution. Therefore, the decision rendered by the learned counsel for the appellant in the case of State of Haryana Vs. Angoori Devi and Another reported in (2020) 18 SCC 773 is not applicable to the case on hand.
26. Considering the facts and circumstances, this Court finds that the trial Court has rightly appreciated the entire materials and convicted and sentenced the appellant and there is no perversity in the judgment of the trial Court. This Court does not find any merit in the appeal and Criminal Appeal deserves to be dismissed.
27. Accordingly, this Criminal Appeal is dismissed. The conviction and sentences passed in S.C.No.347 of 2017 by the learned Sessions Judge, Court of Sessions, Mahila Court, Cuddalore is confirmed. The trial Court is directed to take steps to secure the custody of the accused to undergo the remaining period of sentence, if any and the same shall be set-off under Section 428 Cr.P.C.
28.02.2023 https://www.mhc.tn.gov.in/judis Page No.21/23 Crl.A.No.486 of 2020 Index: Yes/No Speaking Order/Non-Speaking Order Neutral Citation Case : Yes/No ms To
1.The Sessions Judge, Mahila Court, Cuddalore.
2.The Inspector of Police, Pennadam Police Station, Cuddalore District.
3.The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar | with a direction to send back the
(Criminal Section), | original records, if any, to the
High Court, Madras. | trial Court
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