Madras High Court
Ilayaraja vs The State Represented By on 19 August, 2019
Author: T.Krishnavalli
Bench: T.Krishnavalli
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 19.08.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.A.(MD)No.97 of 2014
Ilayaraja : Appellant/Sole Accused
Vs.
The State represented by
The Inspector of Police,
Srirangam All Women Police Station,
Trichy District. : Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 of the
Criminal Procedure Code against the judgment made in S.C.No.125
of 2013, dated 17.02.2014 on the file of the Sessions Judge, Mahila
Court, Tiruchirappalli.
For Appellant : Mr.N.Anandha Kumar
For Respondent : Mr.R.Anandha Raj
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal is directed against the judgment passed in SC No.125 of 2013, dated 17.02.2014 by the Sessions Judge, Mahila Court, Tiruchirappalli.
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2.The case of the prosecution is that the accused and the deceased got married 12 years back and they have two daughters and the accused without going to work used to consume alcohol and had also suspected the chastity of the deceased and beat her severely and on 19.11.2012 at about 7.00 pm, the accused assaulted the deceased in the road and tore her night dress and and in continuation to the torture, the deceased on the same night poured kerosene on herself and self-immolation herself and she was taken to Government Hospital, Tiruchirappalli for treatment, but she did not responded to the treatment and she died on 24.11.2012. The Inspector of Police attached to Srirangam All Women Police Station, Tiruchirappalli has filed the final report against the accused person for the offence under Sections 498-A and 306 IPC.
3.In the trial court, 14 witnesses were examined and 10 Exhibits and 1 material object were marked. When the accused was questioned about the incriminating circumstances, he denied the same. On the side of the accused, no witness was examined and no document was marked. The trial court convicted the appellant/accused for the offence under Section 498-A IPC and sentenced him to undergo 3 years RI and to pay a fine of Rs.1,000/-, http://www.judis.nic.in 3 in default to undergo 3 months simple imprisonment and also sentenced him to undergo 10 years RI and to pay a fine of Rs. 1,000/-, in default to undergo 3 months simple imprisonment for the offence under Section 306 IPC. Aggrieved by the judgment passed by the trial court, the appellant/accused is before this court.
4.Heard both sides and perused the materials available on record.
5.The main contention raised on the side of the appellant/sole accused is that the deceased has given three statements, first one is recorded by PW7, which leading to registration of the present case, the second one is recorded by PW11 and the third one is recorded by PW8 Judicial Magistrate. Hence, all the three statements are taken to be Dying Declaration, in this situation the second Dying Declaration, which was recorded by PW11 was suppressed by the prosecution and at this juncture, it would be unsafe to convict the accused and there are lot of improvements in the three Dying Declarations and the Hon'ble Apex court has laid down laws that if there are apparent discrepancies in the case of multiple Dying Declaration, it would be not proper and dangerous to convict the accused on the basis of http://www.judis.nic.in 4 those Dying declarations and there are material discrepancies in the evidence of witnesses and the prosecution witness have improved their version before the trial court and derived from their original version and hence, their testimony could be relied upon and prays that the appellant/accused is entitled to acquittal.
6.PW1 is the mother of the deceased. PW1 deposed that the accused used to consume alcohol and assaulted her daughter and hence, her daughter came to her home and after mediation by the elders her daughter was taken by the accused and afterwards, the accused assaulted her and abused her daughter and it was informed by her daughter through phone and then her daughter poured kerosene and set fire and her daughter was taken to the Trichy Government Hospital and after five days, her daughter died.
7.PW2 is the brother of the deceased. PW2 deposed that the cruelty caused by the accused on the deceased and due to it, the deceased had self immolation. PW3 is the relative of the deceased. But he turned hostile and did not support the case of the prosecution.
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8.In this case, the complaint statement was recorded from the deceased on 20.11.2012 at 8.30 am and the learned Judicial Magistrate recorded the Dying Declaration of the deceased on 20.11.2012 at 6.45 pm. The deceased in Ex.P3 complaint statement stated that her husband used to consume alcohol and due to it, she went to her mother's house and after mediation, she went to her matrimonial home and on 19.11.2012, her husband consumed liquor and it was questioned by her and the accused assaulted her and caused injury on his hip and due to it, she poured kerosene and set fire.
9.In this case, the learned Judicial Magistrate recorded the Dying Declaration of the deceased on 20.11.2012 at 06.45 pm and the Dying Declaration of the deceased was marked as Ex.P5.
10.On perusal of Ex.P5, it is stated as follows:-
“vd;Dila fzth; jpdKk; Foj;Jtpl;L te;J rz;ilapLthh; ehd; Ntiyf;F Vd; Nghftpy;iynad Nfl;ljhy; vd;id ifahy; fhNjhL mbj;J fhag;gLj;jpdhh; vd; rpj;jg;gh fhj;jhd; vd;gtUf;F Nghd; Ngr NghdNghJ cd; rpj;jg;gh jhd; cdf;F GU\dhnadf; Nfl;L cdf;F mt;tst[ jpkpuhbad moj;jhh; vd; fzth; vd;id re;njfg;gl;L Foj;Jtpl;L te;J ngRtjhy; ehnd kz;bzd;bza; Cw;wpf;
http://www.judis.nic.in 6 bfhz;nld; new;W ,ut[ Rkhh; 10 kzpastpy; ehd; nghl;oUe;j iel;oia fpHpj;J tpl;L vd;id bjUtpw;F miHj;J te;J moj;jhh; epiwa ngh; ntof;if ghh;jth;fs; tpyf;f te;jnghJ eP ahh; vd vd; fzth;
nfl;ljhy; brd;Wtpl;ldh; ehnd cldoahf kz;bzz;bza; Cw;wpf; bfhz;nld;.”
11.On careful perusal of the above Dying Declaration it reveals that the accused took her with night dress in the night and brought her to the Street and assaulted her and when the neighbours attempted to save her, the accused asked them as to why they are and he connected with her with the above persons and hence, they did not rescue her and hence, she poured kerosene and set fire.
12.On careful perusal of Ex.P3 complaint statement and Ex.P5 Dying Declaration, it reveals that the accused subjected the deceased to cruelty and due to it, the deceased has committed suicide.
13.The learned counsel appearing for the appellant/accused argued that the case was registered on 20.11.2012 at 8.30 am and the Dying Declaration was recorded on the same day at 6.45 pm. Hence, there is a possibility of tutoring http://www.judis.nic.in 7 the deceased before recording of the Dying Declaration and the Dying Declaration cannot be relied on.
14.In this case, Ex.P3 complaint statement and Ex.P5 Dying Declaration of the deceased carefully perused. In both Exs.P3 and P5, the deceased categorically stated that the accused had the habit of consuming liquor and frequently developed quarrel with her and on 19.11.2012, in the early morning, her husband quarrelled with her and due to it, poured kerosene and set fire. No suggestion was put to PW1 that she tutored her daughter to give statement as against her husband.
15.The learned Judicial Magistrate, who recorded the Dying Declaration stated that at the time of recording the Dying Declaration of the deceased, no one was present near the deceased.
On conjoint reading of Ex.P3 complaint statement and Ex.P5 complaint, it reveals that the version of the deceased is natural and there is no circumstance to discard the Dying Declaration. Hence, it is held that the Dying Declaration is reliable one. The evidence of PW21 and PW2 is consistent and trustworthy and hence, the evidence of PW1 and PW2 cannot be discarded. http://www.judis.nic.in 8
16.In this case, even though the learned counsel appearing for the appellant/accused argued on merits, but he has stated that in the interest of the welfare of the children both the appellant family and victim family compromised all the issues between them and both the families are taking care and interest toward the children namely Dhanalakshmi and Kasthuri and and the appellant/accused is ready to deposit a sum of Rs.50,000/- each as fixed deposit in the name of Dhanalakshmi and Kasthurai for their peaceful future and also he undertakes that he would provide proper care and interest with regard to his daughters and provide necessary support in the future apart from the fixed deposit.
17.Further, the learned counsel appearing for the petitioners submitted the decision reported in (2007)2 MLJ (Crl) 70 (Raju and another Vs. Inspector of Police, New Hope Police Station). In that case, it has been held as follows:-
“It is well settled that while awarding sentence the effect of compromise can be taken into consideration. It has been stated that the appellant has remained in custody for a period of 14 months and there is no allegation that he assaulted the deceased.” http://www.judis.nic.in 9
18.In AIR 2009 SC 675 (Ishwar Singh Vs. State of Madhaya Pradesh), it has been held as follows:-
“13.Now, it cannot be gainsaid that an offence punishable under Section 307 IPC is not a compoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that no offence shall be compounded if it is not compoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important consideration about compromise between the parties for the purpose of reduction of sentence.
14.In Jetha Ram Vs. State of Rajasthan, (2006)9 SCC 255, Mrugesan & Ors. V. Ganapathy Velar, (2001)10 SCC 504 and Ishwarlal V. State of M.P., JT 1988(3) SC 366(1), this Court, while taking into account the fact compromise between the parties, reduced sentence imposed on the appellant-
accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand V. State of Rajasthan, AIR 1988 SC 2111, such offence was ordered to be compounded.
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15.In our considered opinion, it
would not be appropriate to order
compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which, the Court may keep in mind.”
19.Further, in the judgment reported in 2012 CRL.LJ.667 (Culab Das and others Vs. State of M.P), the Hon'ble Apex Court as follows:-
8.Having said that we are of the view that the settlement/compromise arrived at between the parties can be taken into consideration for the purpose of determining the quantum of sentence to be awarded to the appellants.
That is precisely the approach which this Court has adopted in the cases referred to above. Even when the prayer for composition has been declined this Court has in the two cases mentioned above taken the fact of settlement between the parties into consideration while dealing with the question of sentence. Apart from the fact that a settlement has taken place between the parties, there are few other circumstances that persuade us to interfere on the question http://www.judis.nic.in 11 of sentence awarded to the appellants. The incident in question had taken place in the year 1994. The parties are related to each other. Both Appellant nos. 2 and 3 were at the time of the incident in their twenties. It is also noteworthy that the incident had led to registration of a cross case against the complainant party in which the trial Court has already convicted Veeraji and others for offences punishable under Sections 325/34 and 323 IPC and sentenced them to undergo imprisonment for a period of two years and a fine of Rs.300/- and imprisonment of six months under Section 323 IPC. We are told that the parties having settled the matter, will approach the High Court for an appropriate order in the appeal pending before it. More so, the appellants have already served substantial part of the sentence awarded to them.
20.Keeping in mind the above citations and the settlement arrived at between the parties as well as taking into account for determining the quantum of sentence and the accused served substantive part of sentence, it is held that the sentence imposed on the appellant/accused is reduced the sentence to the period already undergone. It is seen from the records that the appellant/accused was in judicial custody for more than two years and three months. http://www.judis.nic.in 12
21.Accordingly, this Criminal Appeal is partly allowed, by reducing the sentence awarded to the appellant/accused to the sentence already undergone by them. In respect of fine amount, the findings of the trial court is confirmed. The appellant/accused is directed to deposit a sum of Rs.50,000/- each as fixed deposit in any one of the nationalised bank in the name of Dhanalakshmi and Kasthuri.
19.08.2019 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 13 To,
1.The Sessions Judge, Mahila Court, Tiruchirappalli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 14 T.KRISHNAVALLI,J.
gns/er Judgment made in Crl.A.(MD)No.97 of 2014 19.08.2019 http://www.judis.nic.in