Madras High Court
Kalvinathan vs State Rep.By Sub Inspector Of Police on 25 January, 2007
Author: P. Murgesen
Bench: P. Murgesen
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25/01/2007 CORAM THE HONOURABLE MR. JUSTICE P. MURGESEN CRP No.809 of 2005 Kalvinathan .. Petitioner accused Vs State rep.by Sub Inspector of Police, Perumalpuram Police Station, Tirunelveli District. .. Respondent Criminal Revision Case filed under Section 397 & 401 of Cr.P.C. against the Judgment of the learned Sessions Judge, Tirunelveli Division (Addl.Sessions- Fast Track Court No.2) dated 24.10.2005 made in C.A.No.170 of 2002 confirming the judgment of conviction and sentence dated 21.10.2002 imposed by the learned I Addl.Assistant Sessions Judge, Tirunelveli in S.C.No.512 of 1999. !For Petitioner ... Mr. V.Kathirvelu ^For Respondent ... Mr.Siva Iyyappan Addl.Public Prosecutor :O R D E R
The Revision Petition is filed the petitioner/accused against the Judgment of the learned Sessions Judge, Tirunelveli Division (Addl.Sessions-Fast Track Court No.2) dated 24.10.2005 made in C.A.No.170 of 2002 confirming the judgment of conviction and sentence dated 21.10.2002 imposed by the learned I Addl.Assistant Sessions Judge, Tirunelveli in S.C.No.512 of 1999.
2.The case of the prosecution herein is briefly as follows:
(a)P.W.1-Paramasivam is the resident of V.M.Chathiram Kudi, his wife Essakiammal is P.W.2, P.W.3 -Kalyanasundaram is the brother of P.W.2. The accused/Revision Petitioner married the daughter(Balabhagavathi) of P.Ws 1 & 2 on 8.12.1994 at Tirunelveli Salai Kumark Kovil. It is the love marriage. At the time of marriage, P.W.1 had not given any jewels to his daughter. But, after three months, the accused demanded jewels. So, P.W.1 gave 28 Kalanjies of jewels to his daughter. Thereafter, they happily lived for two years. P.W.1 also gave two sovereigns of gold chain and also gave a house to his daughter and son-in-law. After sometime the deceased wrote a letter to her maternal uncle asking him to give a sum of Rs.50,000/-. Since P.W.1 was not having that much amount, he borrowed a sum of Rs.20,000 from one Kuthalam-P.W.6 and a sum of Rs.35,000/- from one Sudalaimuthu-P.W.5 and handed over the cash to his daughter and son-in-law. Not satisfied with the above, the accused also pledged the jewels of Balabhagavathi, wife of the accused in Pandiyan Rural Bank and spent the amounts for partition of his family property. Thereafter, P.W.1 arranged a marriage for his second daughter Krishnaveni and at that time also the accused demanded P.W.1 to take the same type of clothes which had been taken for the bride and bridegroom or otherwise he threatened him to destroy the family. Thereafter also, he used to harass his wife (deceased) to bring jewels from her father's house.
b)Unable to tolerate the harassment of the accused, on the fateful day of occurrence i.e. on 7.6.1999 at about 6.00 p.m. the daughter of P.W.1 committed suicide by pouring kerosene and set fire on her body. On hearing the sound, P.W.2 immediately came to the scene of occurrence, saw her daughter and at that time, the accused was trying to put off the fire and after sometime he ran away from the scene of occurrence. P.W.2 and one Poovalingam Rajam immediately admitted the deceased to the Highground Hospital.
c)Doctor P.W.8 attached to Tirunelveli Medical College Hospital first treated the deceased at 6.15 p.m. on 7.6.1999 and he found 90% burn injuries and the deceased was admitted as an inpatient. Ex.P6 is the Accident Register. The deceased was again treated by P.W.9-Dr.Varadharajan. Inspite of the serious efforts, he was not able to save the life of Bala Bhagavathi and the victim died at 3.00 p.m. on 10.6.1999. P.W.9 sent the intimation-Ex.P10 to the concerned Police.
d)Thiru Durai Singh-P.W.11 was the Head Constable attached to Tirunelveli Medical College Hospital Out-Post Police station. He received the death intimation from Doctor-P.W.9 and proceeded to the ward where the victim was lying. He also recorded the statement from the victim-Ex.P1 in the presence of P.W.2 and sent the intimation memo Ex.P10 along with the Statement from the deceased-Ex.P1 to the Perumalpuram Police Station. A women Magistrate came and recorded the dying declaration from the deceased.
e)P.W.12-Pon Durai Raj who was incharge of Perumalpuram Police station received the intimation; the statement of the deceased from the Tirunelveli Medical College Out Post Police Station on 9.6.1999 at 7.30 a.m.; registered a case in Crime No.215 of 1999 under Section 498-A. Ex.P11 is copy of the Prinited F.I.R. ; he sent Exs. P1 and 10 to the Judicial Magistrate Court. He also sent the entire particulars to the Inspector of All Women Police Station.
f)P.W.13 was the Inspector attached to All Women Police Station, Tirnelveli. She took up the case for investigation. At the time of investigation, she received a message from the Medical College Hospital about the death of Bala Bhagawathi and hence she altered the case under section 304-B IPC since the deceased died within four years from the date of marriage, she sent the printed F.I.R. Ex.P12 to the Revenue Divisional Officer-P.W.4.
g)P.W.4-Mr.Aruljuraj, Revenue Divisional Officer, received the F.I.R. at 7.25 p.m. on 10.6.1999. He went to the hospital on 11.6.1999, conducted the inquest on the dead body of the deceased at 8.00 a.m., also enquired P.Ws 1, 2,
3 and the Panchayatdars and also recorded their statements. He also sent a requisition Doctor-P.W.10 to conduct the post-mortem on the dead body of the deceased. He also submitted the inquest report.
h)Doctor-P.W.10 received the requisition from the Revenue Divisional Officer-P.W.4 and conducted post-morterm on the dead body of the deceased. He found the following injuries:
"Cut down would seen on the inner aspect of both ankles. Infected second degree burns seen on face, neck chest upper part of abdomen, whole of both upper limbs, whole of back, both gluteal region and whole of both upper limbs, whole of back, both gluteal region and whole of both lower lilmbs. Patchy first degree burns seen on lower abdomen and public region. Singeing of bifrontal scalp hair, eyebrows, eye lashes noted. Peeling and blackening of skin seen all over the body in a patchy manner. Degloving of skin of both hands and feet noted.
Pleural and peritoneal cavities: empty.
Heart:All chambers contained a few cc of fluid of blood. LUNGS:C/S : CONGESTED.
TRACHEA AND LARYNX: Contains fine back soot particles with froth. HYOID BONE: INTACT. STOMACH: Contains 300 cc of green bile-stained fluid. nil specific smell.muscosa:pale.
SMALL INTESTINE:Contains 50 cc of bile-stained fluid. nil specific smell. muscosa:pale.
LIVER, SPLEEN AND KIDNEYS: C/S:PALE URINARY BLADDER:EMPTY UTERUS:NORMAL.C/S EMPTY BRAIN:C/S SURFACE VESSELS CONGESTED.
FINAL OPINION: The deceased would appear to have died of complications of wounds. "
Ex.P8 is the Post-Mortem Certificate.
i)On 11.6.1999, P.W.14-Deputy Commissioner, Tirunelveli, he took up the case for investigation and on the same day he examined P.W.1-Paramasivam, P.W.2- Essakiammal, P.W.3-Kalyanasundaram, P.W.5-Sudalaimuthu, P.W.6-Kuthalam and others and recorded their statements. At about 9.30 a.m., he visited the scene of occurrence and prepared the sketch-Ex.P13. He prepared the observation mahazar in the presence of P.W.2 and and one Mari. Ex.P5 is the observation mahazar. Then at about 10.00 a.m., he recovered M.O.1-Ten Litre Plastic can, Polyster Shirt-M.O.2 under Ex.P14 wherein P.W.3-Kalyanasundaram produced the letter-Ex.P2 as required under Form-95. On the same say, at about 11.00 a.m., he arrested the accused in the Tirunelveli Medical College Hospital wherein he was admitted as an inpatient. On 17.6.1999, he examined P.W.8-Dr.Nazar, P.W.9- Dr.Varadharajan, P.W.11-Durai Singh. P.W.12-Pon Rajadurai; P.W.13-Suseela and other witnesses and recorded their statements. On 25.6.1999, he recorded the statements of P.W.10-Balakrishna Rao and one Selvaraj. On 28.6.1999, he recorded the statements from Thiru Aruljuraj, Revenue Divisional Officer-P.W.4. After completing the investigation, he obtained the advise of Public Prosecutor and filed the charge sheet under Section 498-A and 304-B IPC against the accused.
3.On consideration of the entire evidence on record, the accused was found guilty by the learned trial Judge and sentenced him to undergo seven years rigorous imprisonment. The appeal filed by the Revision Petitioner herein was also dismissed by the learned Sessions Judge, Tirunelveli Division (Addl.Sessions - Fast Track Court No.2) in C.A.No.170 of 2002. Aggrieved over the Judgments of the Courts below, the above Revision Petition has been filed by the petitioner/accused.
4.The prosecution in order to bring home the charges against the accused, examined P.Ws 1 to 14, filed Exs. P1 to P15 and marked M.Os 1 and 2.
5.When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, he denied the complicity in the crime and stated that he has been falsely implicated in the case. The accused also examined D.Ws 1 to 3 and D.W.1 stated that he engaged an auto on the request of accused to take the victim to the hospital and D.W.2 deposed that he saw the victim only in the hospital and Doctor-D.W.3 deposed that the accused might have sustained injury when attempted to put off fire.
6.Heard the arguments of Mr.V.Kathirvelu, the learned counsel for the petitioner/accused and Mr.Siva Iyyappan, the learned Additional Public Prosecutor for the respondent.
7.The point for for consideration is whether the Revision Petition is maintainable ? and whether the accused is guilty of an offence under Section 304-B IPC ?
POINT:(a)P.W.1-Paramasivam is the resident of V.M.Chathiram Kudi, his wife is P.W.2, P.W.3-Kalyanasundaram is the brother of P.W.2. The accused/Revision Petitioner is the husband of the deceased-Balabhagavathi/ daughter of P.Ws 1 &
2. The marriage between Balabhagavathi and the accused was solemnized on 8.12.1994 at Tirunelveli Salai Kumark Kovil. It is the love marriage. There was no demand of dowry at the time of marriage. This was evident from the evidence of P.Ws 1 & 2. Even the mother of the accused has not demanded any dowry. They were living happily. P.W.1 gave 28 Kalanjies of jewels to his daughter and son-in-law. According to the prosecution, later on the accused demanded jewellary and unable to bear the torture of her husband/accused, the victim committed suicide on 7.6.1999. On the same day, she was taken to hospital. Doctors P.Ws 8 & 9 gave her treatment. However, the victim died on 10.6.1999. Her body was sent for post-morterm on the request made by the Revenue Divisional Officer. Doctor-P.W.10 conducted post-morterm and he found the following injuries:
"Cut down would seen on the inner aspect of both ankles. Infected second degree burns seen on face, neck chest upper part of abdomen, whole of both upper limbs, whole of back, both gluteal region and whole of both upper limbs, whole of back, both gluteal region and whole of both lower lilmbs. Patchy first degree burns seen on lower abdomen and public region. Singeing of bifrontal scalp hair, eyebrows, eye lashes noted. Peeling and blackening of skin seen all over the body in a patchy manner. Degloving of skin of both hands and feet noted.
Pleural and peritoneal cavities: empty.
Heart:All chambers contained a few cc of fluid of blood. LUNGS:C/S : CONGESTED.
TRACHEA AND LARYNX: Contains fine back soot particles with froth. HYOID BONE: INTACT. STOMACH: Contains 300 cc of green bile-stained fluid. nil specific smell.muscosa:pale.
SMALL INTESTINE:Contains 50 cc of bile-stained fluid. nil specific smell. muscosa:pale.
LIVER, SPLEEN AND KIDNEYS: C/S:PALE URINARY BLADDER:EMPTY UTERUS:NORMAL.C/S EMPTY BRAIN:C/S SURFACE VESSELS CONGESTED.
FINAL OPINION: The deceased would appear to have died of complications of wounds. "
Ex.P8 is the post-morterm certificate.
b)In case of Section 304-B IPC, the Court has to satisfy (a) that there is a demand of dowry and harassment by the accused; (b)that the deceased died; and
(c) that the death is under unnatural circumstances. Once there is harassment for the payment of dowry and unnatural death occurs within seven years after the marriage, the presumption of dowry death is inherent. Ingredients necessary to attract Section 304-B,IPC are as follows:
(1)Death of a woman is either by burns or bodily injury or otherwise than under normal circumstances, (2)it should be within seven years of marriage, (3)it should also be shown that soon before her death she was subjected to cruelty or harassment by husband or a relative of husband, (4)such harassment of cruelty should pertain to demand for dowry."
c)Further Section 113-B of the Evidence Act reads as follows:
"113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
d)In this case, the marriage of the victim and the accused was solemnized in the year 1994, the victim died on 10.6.1999. So, the death occurred within seven years from the date of marriage. Her death is not natural, which was spoken by Doctor-P.W.10 who conducted the post-morterm. It was the love marriage and they lived happily. There was no demand of dowry on the date of marriage and P.W.1 deposed that he gave 28 kalangies of jewels to his daughter and son-in-law. To prove the demand of money, P.Ws 5 and 6 were examined. They spoke about the demand of money by the accused. But, they have not stated that the amount was given to the accused towards the demand of any dowry. The prosecution relied on the letter written by the victim to P.W.3 who was the maternal uncle of the deceased. In that letter the victim has stated that she was in need of Rs.50,000/- to pay to her mother-in-law towards the settlement of share in the family. The victim had not stated in that letter that her husband harassed her and forced her to got that amount. So there is nothing on record to implicate the accused for demand of dowry. P.Ws 1 and 2 have also not lodged any complaint before the Police or before the Panchayatdars about the alleged demand of dowry by the accused. If really there was a demand, certainly they would have complained it to anyone of the common friends. But they did not do so. This would go to show that the case of demand of dowry is not true.
e)Even P.W.3 admitted that there was no ill treatment of victim by the accused. He admitted in the cross examination that he only lent the amount to P.W.1. Further the evidence of the Investigating Officer - P.W.14 would show that the marriage was the love marriage and there was no demand of dowry and there was no difference of opinion between them in respect of dowry.
f)On behalf of the accused, it was argued that there was a dispute between the mother and the deceased and due to that the victim committed suicide.
8.On a careful consideration of the evidence, it clear that there was no demand of dowry. Further, there is doubt about the complaint-Ex.P1 alleged to be given by the victim. On behalf of the defence it was stated that the accused/husband also sustained injury. This was spoken by Doctor-D.W.3 who gave treatment to the accused in the hospital. A perusal of Ex.P1 shows that there was an insertion about the injury sustained by the accused and those words were written subsequently. If really the victim spoke about the injury sustained by her husband, that would have been written in a normal course. So, this creates doubt about Ex.P1. Then, the Doctor-P.W.8 who first treated the victim deposed that the victim sustained 90% injury and gave report Ex.P6. Ex.P8-Post Morterm Certificate shows that the deceased sustained 90% burn injuries. The evidence of Doctor -P.W.1 would show that there was peeling and blackening of skin seen all over the body. While that be the case, it is not possible for the victim to give a thump impression. Moreover, the medical evidence would show that the victim was not conscious and was not in a fit state of mind to give statement to the Police. The defence counsel submitted that victim was admitted in the hospital on 7.6.1999 and she died only on 10.6.1999 and till then there was no attempt to record the statement from the victim. P.W.11-Durai Singh who claims to have recorded the statement-Ex.p1 admitted that a dying declaration was recorded by a woman Magistrate two days after the admission of the victim in the hospital. However, the said dying declaration recorded by the Judicial Magistrate was not produced.
9.Therefore, this Court is of the opinion that there might have been another statement about the cause of death of the victim and that was not produced before the Court. Moreover, the Doctor, who first examined the victim deposed that the victim did not spoke about the cause of the death. It is also seen that the occurrence took place on 7.6.1999, however the F.I.R. was registered only on 9.6.1999 at 9.00 a.m. in Crime No.215 of 1999 and the F.I.R. reached the Judicial Magistrate only on 11.1.1999. The reason stated by the prosecution is that due to law and order problem, they could not have received the complaint in time. When there was a grave crime and there was an allegation of death, the reason given by the prosecution that due to law and order problem, they have not chosen to register the case in time, was not satisfactory. This goes to the root of the case. Hence there was a doubt about the complaint- Ex.P1.
10.The learned counsel for the petitioner relied on the decision of the Supreme Court in PAPARAMBAKA ROSAMMA & ORS. Vs. STATE OF ANDHRA PRADESH (1999 Supreme Appeals Reporter (Crl) 646), and argued that the dying declaration in the case on hand is doubtful. In the above case, the Hon'ble Supreme Court observed as follows:
"A.Dying Declaration-Offence u/sec. 302/498 and 114 of IPC-Bride burning case-Prosecution case solely based on dying declaration of deceased wife-Dying declaration recorded by Judicial Magistrate with a doctor's certificate at the end of declaration "Patient is conscious while recording the statement" - It is therefore, clear that the deceased at that time was only conscious but not in a fit state of mind to make a statement-Even some of the part of statement proves that she was not in a fit state of mind at that time-She has stated that three accused poured kerosene on her and she herself also poured Kerosene on her and also that she had not taken food for days-In medical science two stages "conscious and a fit state of mind" are distinct and not synonymous-She was 90% burnt and could not be in a fit state of mind to make any statement-Therefore, this dying declaration held to be not sufficient to convict the appellants-They are acquitted-Appeal allowed."
In that case, there the deceased was conscious but not in a fit state of mind to make a statement and on that ground the case of the prosecution was rejected.
11.In the light of the above said decision, I am not inclined to hold that the death was caused due to the demand of dowry. The prosecution failed to prove the case under Section 304-B IPC. However it is sufficient to hold that there was a demand of dowry by the accused and the same was spoken by P.W.1. This would go to show that the accused harassed the victim. Analysing the evidence of record carefully, I am of the view that the the accused committed the offence only under Section 498-A IPC and for that offence, it is just and proper to impose the sentence of one year simple imprisonment.
12.Accordingly, for the offence committed by the petitioner/accused under Section 498-A I.P.C., he is imposed with one year simple imprisonment and he is acquitted from the charges levelled against him under Section 304-B IPC. With the above modification, the Criminal Revision Case is disposed of.
To
1.The Sessions Judge, Tirunelveli Division (Addl.Sessions-Fast Track Court No.2)
2. I Addl.Assistant Sessions Judge, Tirunelveli Principal Sessions Judge, Srivilliputtur,
3.The Sub Inspector of Police, Perumalpuram Police Station, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.