Sections 498(A), 304(B) of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961. = Appeal against conviction - mere general deposition can not be considered as evidence when other materiel record not supported their version - conviction set aside - accused set free = 1.V.Periyasamy 2.C.Veeran 3.Natchammal ... Appellants Vs. State, rep by Deputy Superintendent of Police, Melur, Crime No.313 of 2006, Kottampatti Police Station. ... Respondent = reported in http://judis.nic.in/judis_chennai/filename=62415

Sections 498(A), 304(B) of the Indian Penal Code and Section 4 of

the Dowry Prohibition Act, 1961. = Appeal against conviction - mere general deposition can not be considered as evidence when other materiel record not supported their version  - conviction set aside - accused set free = 

Of course, it is true that

the family members of the deceased have stated, on three occasions, that the

accused 2 to 4 demanded dowry and forced the deceased out of the matrimonial

home. 

This evidence is very general and the evidence, on this aspect, is very

vague in nature. 

They have not stated that as to when, where and under what

circumstances, such demand was made, that too, by which accused and what was the

demand.

according to the evidence of PW-10, the deceased made a

complaint on 22.03.2006 alleging that her husband, the first accused, had left

for Chennai, on account of his job, leaving her in the company of the accused 2

to 4.

 But, in the absence of the first accused, the accused 2 to 4 developed

quarrel with her and forced her out of the matrimonial home.

 On these

allegations, she wanted action to be taken against these accused. The matter was

compromised between the parties in the Police Station, in which the deceased

gave a statement under EX-P5.

 In the said statement, she did not whisper

anything about either the dowry demand made by the accused or the consequential

harassment.

 In EX-P5, she has stated that in the absence of her husband, the

accused 2 to 4 did not take care of the deceased and did not provide food and

basic amenities. 

Except this allegation, she had not stated anything against the

accused. In the said statement, she has further stated that the first accused,

by way of compromise, had agreed to pay a sum of Rs.500/- per month towards her

maintenance and her child, out of his monthly salary of Rs.1,000/- 

Therefore,

she wanted no further action against the accused. In the said compromise, the

first accused gave a statement under EX-P6, where also, the same is reiterated.

EX-P7 is the closure report made by PW-10, where also PW-10 has also reiterated

the same.

10. From the above documents, it is crystal clear that there is no whisper

about any dowry demand or the consequential harassment made by any of the

accused. Had it been true that the deceased was subjected to cruelty and dowry

demand in terms of Section 498(A) of the Indian Penal Code and Section 4 of the

Dowry Prohibition Act, 1961, certainly, the deceased would have made a mention

about the same either in the complaint or in the statement made during talks in

the Police Station. The very fact that she did not say anything about the

cruelty or dowry demand, would go to clearly establish that what is now stated

by the family members of the deceased is only an afterthought and the same

cannot be believed.

we find that there is no

evidence against the accused to say that there was either dowry demand or the

consequential harassment, much less such consequential harassment was soon

before the death of the deceased. Thus, there is no evidence available on record

against any of the accused to sustain the conviction.

 In view of the above discussion, the conviction and sentence dated

31.03.2009 made in S.C.No.267 of 2007, imposed by the learned Sessions

Judge/Mahalir Neethi Mandram, Madurai, is set aside and the Criminal Appeal is

allowed. The fine amount, if any, paid by them shall be refunded. The bail bonds

executed by them shall stand discharged.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 18/01/2013

CORAM

THE HONOURABLE MR.JUSTICE M.JAICHANDREN

AND

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRIMINAL APPEAL (MD).No.84 of 2009

1.V.Periyasamy

2.C.Veeran

3.Natchammal ... Appellants

Vs.

State, rep by Deputy Superintendent of Police,

Melur, Crime No.313 of 2006,

Kottampatti Police Station. ... Respondent

PRAYER

Appeal is filed under Section 374(2) of the Code of Criminal Procedure

to call for the records in S.C.No.267 of 2007 on the file of the learned

Sessions Judge/Mahalir Neethi Mandram, Madurai, dated 31.03.2009 and set aside

the same.

!For Appellant ... Mr.V.Kathirvelu

    Senior Counsel

    For Mr.K.Prabhu

^For Respondent ... Mr.A.Ramar

    Additional Public Prosecutor

:JUDGMENT

*************

[Judgment of the Court was delivered by S.NAGAMUTHU, J.]

The appellants are the accused in S.C.No.267 of 2007, on the file of the

learned Sessions Judge/Mahalir Neethi Mandram, Madurai. They stood charged for

offences under Sections 498(A), 304(B) of the Indian Penal Code and Section 4 of

the Dowry Prohibition Act, 1961. By Judgment dated 31.03.2009, the Trial Court

acquitted the fourth accused, but convicted these accused under all the three

charges and sentenced them, as detailed below.

Accused Sentenced   Quantum of   Quantum of  Sentence in

under     substantive fine    default of

Section(s)  Sentence    payment of fine

1 (i).498(A), Three years RI,  Rs.1,000/- Six months RI

(ii 304(B), Imprisonment for life  ----------- ----------

(iii).Section 4

of the Dowry  Two years RI Rs.1,000/- Six months RI

Prohibition Act,

1961.

2 (i).498(A) One year RI Rs.500/- Three months RI

(ii).304(B) Seven years RI ------------ ------------

(iii).Section 4 One year RI Rs.500/- Three months RI

of the Dowry

Prohibition Act,

1961.

3 (i).498(A) One year RI Rs.500/- Three months RI

(ii).304(B) Seven years RI ------------ ------------

(iii).Section 4 One year RI Rs.500/- Three months RI

of the Dowry

Prohibition Act,

1961.

The conviction and sentence imposed on the appellants 1 to 3 have been ordered

to run concurrently. Challenging the said conviction and sentence, the

appellants have come up with this Criminal Appeal.

2. The case of the prosecution, in brief, is as follows:-

The deceased, in this case, was one Mrs.Rajathi. The first accused is her

husband. The accused 2 and 3 are the father-in-law and mother-in-law

respectively of the deceased. The fourth accused is the brother of the first

accused. PW-2 is the senior paternal uncle of the deceased. The first accused

had fallen in love with the deceased. But, the first accused had already two

wives. When the first accused wanted to marry the deceased, PW-2 and the other

family members opposed the same. However, the first accused abducted the

deceased and married her, four years prior to the occurrence. They have got a

female child out of the said relationship. The deceased was residing with these

three accused as a joint family. The marital life was peaceful for about one and

half years.

2.1. Thereafter, the first accused left the deceased in the company of the

accused Nos.2 to 4 and he left for Chennai, on account of his job. While she was

so residing with the accused Nos.2 to 4, it is alleged that they demanded dowry

and forced her to leave the matrimonial home. In this regard, the deceased made

a complaint to the police.

2.2. PW-10, the then Inspector of Police, attached to the All Women Police

Station, Melur, Madurai District, on receipt of the said complaint from the

deceased in Petition No.49 of 2006, called both the parties for a talk. In the

said complaint, the deceased had stated that in the absence of the first

accused, the other accused did not allow her to reside in the matrimonial home.

It needs to be noted, at this juncture, that there is no mention in the

complaint about the dowry demand made by the accused and on account of the same,

the accused forced her out of the matrimonial home. The first accused also

appeared before the police. The matter was compromised, in which the first

accused promised to pay a sum of Rs.500/- towards her maintenance and her child.

The accused 2 and 3 also promised that they would not disturb the deceased and

she could live happily in the matrimonial home.

2.3. Thereafter, again, on one occasion, according to the prosecution, the

accused Nos.2 and 3 demanded dowry and sent her out of the matrimonial home.

This time also, there was a panchayat near Vanchikovil. In the said panchayat,

it was decided that the deceased could reside in the same matrimonial home and

the first accused shall continue to pay a sum of Rs.500/- per month towards her

maintenance. Even prior to Diwali, in the year 2006, the deceased went to her

parental home and she told that she was not provided food and other amenities by

the accused 2 to 4 and she was not also paid a sum of Rs.500/- towards her

maintenance, as promised. Then, the deceased left for the matrimonial home.

Thereafter, the deceased committed suicide by hanging on 21.10.2006 and the

child was also found hanging by her side in a tree in the field of one

Mr.Thethampatti Chelliah.

2.4. PW-1 was the then Village Administrative Officer of Vanchi Nagar

Village. On 21.10.2006, at 04.00 PM, his assistant informed him that two dead

bodies were hanging in the bamboo tree. Immediately, he proceeded to the place

of occurrence and found the said information to be true. Then, he immediately,

proceeded to the Police Station and made a complaint under EX-P1. The Inspector

of Police, Kottampatti Police Station, registered a case in Crime No.313 of

2006, under Section 174 of the Code of Criminal Procedure.

2.5. PW-14, the then Deputy Superintendent of Police, Melur, took up the

case for investigation. He proceeded to the place of occurrence and prepared an

Observation Mahazer [EX-P3] and a Rough Sketch [EX-P17] in the presence of the

witnesses. Then, he arranged for photographs being taken of the dead bodies. He

conducted inquest on the bodies of both the deceased and forwarded the same for

postmortem.

2.6. PW-12, Dr.P.Venkatachalam, along with yet another doctor, by name

Dr.Radha, conducted autopsy on the body of the deceased - Rajathi, on

22.10.2006, at 01.20 PM. They found the following injuries:-

"1.Vertical ligature mark seen over the neck encircling whole neck except

over the nape of the neck. Eyes are closed. Tongue within the oral cavity.

Frothy discharge from the nostrils."

EX-P8 is the Postmortem Certificate. They opined that the deceased would appear

to have died of ante-mortem hanging about 24 to 36 hours prior to the autopsy.

2.7. On the same day, they conducted autopsy on the body of the deceased -

Rajalakshmi, aged three years and found the following injuries:-

"1. Vertical ligature mark seen over the neck encircling whole neck except

over nape of the neck.

2. Abrasion 3 X 1 cm over left ankle."

EX-P10 is the Postmortem Certificate. EX-P11 is the final opinion. They opined

that the deceased would appear to have died of ante-mortem hanging about 24 to

36 hours prior to the autopsy.

2.8. PW-13 examined few more witnesses and submitted final report. Based

on the same, PW-14 altered the case into one under Sections 498(A), 302(B) of

the Indian Penal Code and Section 4 of the  Dowry Prohibition Act, 1961. On

completing the investigation, he laid charge sheet against the accused.

3. Based on the above materials, the Trial Court framed charges under

Sections 498(A), 304(B) of the Indian Penal Code and Section 4 of the Dowry

Prohibition Act, 1961. The accused pleaded innocence. Therefore, they were put

on trial. In order to prove the case of the prosecution, on the side of the

prosecution, as many as fourteen witnesses were examined and nineteen documents

were exhibited, besides five Material Objects. Out of the said witnesses, PW-2

is the senior paternal uncle of the deceased, who has stated that the accused 2

to 4, on two occasions, demanded dowry and forced the deceased out of the

matrimonial home. PW-3 is the cousin of the deceased. He has also stated so and

has corroborated the evidence of PW-2. PW-4 is the wife of PW-2. She has stated,

in a general terms, about the dowry demand made by the accused 2 to 4. PW-5 is

the brother of PW-2. He has also stated that the accused demanded dowry and

harassed the deceased on two occasions prior to her death. PW-6 is the

panchayatar, who has stated that he and others made a compromise between the

accused and the deceased and in the compromise, it was decided that the first

accused could pay a sum of Rs.300/- to Rs.400/- towards her maintenance and her

child. PW-7 has turned hostile and she has not supported the case of the

prosecution in any manner. PW-8 is the one, who noticed both the deceased

hanging in the tree. He only informed PW-1, the Village Administrative Officer

about the occurrence. PW-9 is the one, in whose presence, the Observation

Mahazer and the Rough Sketch were drawn. PW-10, the Inspector of Police, All

Women Police Station, Melur, is a vital witness. She has spoken to about the

compromise effected between the parties and the statements made by them also.

The others are the official witnesses.

4. When the above incriminating materials were put to the accused under

Section 313 of the Code of Criminal Procedure, they denied the same as false.

However, they did not choose to examine any witness on their side nor to exhibit

any document in their defence. Having considered the above materials, the Trial

Court found them guilty under all the charges, and accordingly, punished them.

That is how, the appellants are now before this Court with this Criminal Appeal.

5. We have heard the learned Senior Counsel appearing for the appellants

and the learned Additional Public Prosecutor for the State and also perused the

records carefully.

6. It is submitted by the learned Senior Counsel appearing for the

appellants that though the family members of the deceased, such as, PW-2 to PW-5

have stated that there was dowry demand and the consequential harassment at the

hands of the accused, the same cannot be believed, for the simple reason that in

the complaint made by the deceased to the Inspector of Police, All Women Police

Station, Melur, [PW-10], the deceased did not even whisper anything about such

alleged dowry demand and the consequential harassment made by the accused. The

learned Senior Counsel would also point out that during talks in the Police

Station, according to the evidence of PW-10, the deceased alleged that there

were frequent quarrels between the accused and the deceased due to

misunderstanding. 

The matter was compromised, in which the accused 2 to 4 told

that they would not disturb the deceased in any manner and the first accused

promised to pay a sum of Rs.500/- towards her maintenance and her child. 

The

learned Senior Counsel would take us through the statement made by the deceased

under EX-P5 to substantiate his contention. If this part of evidence is

accepted, then, the learned counsel would point out that absolutely, there is no

evidence to say that there was either dowry demand or consequential harassment,

much less such consequential harassment was soon before her death.

7. But, the learned Additional Public Prosecutor would submit that the

family members of the deceased have categorically stated about the dowry demand

made by the accused 2 to 4 and the consequential harassment, and therefore,

according to him, the Judgment of the Trial Court does not require any

interference at the hands of this Court.

8. We have considered the above submissions. 

Of course, it is true that

the family members of the deceased have stated, on three occasions, that the

accused 2 to 4 demanded dowry and forced the deceased out of the matrimonial

home. 

This evidence is very general and the evidence, on this aspect, is very

vague in nature. 

They have not stated that as to when, where and under what

circumstances, such demand was made, that too, by which accused and what was the

demand.

9. Per contra, as rightly pointed out by the learned Senior Counsel for

the appellants,

 according to the evidence of PW-10, the deceased made a

complaint on 22.03.2006 alleging that her husband, the first accused, had left

for Chennai, on account of his job, leaving her in the company of the accused 2

to 4.

 But, in the absence of the first accused, the accused 2 to 4 developed

quarrel with her and forced her out of the matrimonial home.

 On these

allegations, she wanted action to be taken against these accused. The matter was

compromised between the parties in the Police Station, in which the deceased

gave a statement under EX-P5.

 In the said statement, she did not whisper

anything about either the dowry demand made by the accused or the consequential

harassment.

 In EX-P5, she has stated that in the absence of her husband, the

accused 2 to 4 did not take care of the deceased and did not provide food and

basic amenities. 

Except this allegation, she had not stated anything against the

accused. In the said statement, she has further stated that the first accused,

by way of compromise, had agreed to pay a sum of Rs.500/- per month towards her

maintenance and her child, out of his monthly salary of Rs.1,000/- 

Therefore,

she wanted no further action against the accused. In the said compromise, the

first accused gave a statement under EX-P6, where also, the same is reiterated.

EX-P7 is the closure report made by PW-10, where also PW-10 has also reiterated

the same.

10. From the above documents, it is crystal clear that there is no whisper

about any dowry demand or the consequential harassment made by any of the

accused. Had it been true that the deceased was subjected to cruelty and dowry

demand in terms of Section 498(A) of the Indian Penal Code and Section 4 of the

Dowry Prohibition Act, 1961, certainly, the deceased would have made a mention

about the same either in the complaint or in the statement made during talks in

the Police Station. The very fact that she did not say anything about the

cruelty or dowry demand, would go to clearly establish that what is now stated

by the family members of the deceased is only an afterthought and the same

cannot be believed.

11. The learned Senior Counsel would submit that 

since the accused had

abducted the deceased and married her, as his third wife, the family members of

the deceased have falsely deposed against the accused. 

We find some force in the

said argument advanced by the learned Senior Counsel. 

As rightly pointed out by

the learned Senior Counsel, in this case, absolutely, 

we find that there is no

evidence against the accused to say that there was either dowry demand or the

consequential harassment, much less such consequential harassment was soon

before the death of the deceased. Thus, there is no evidence available on record

against any of the accused to sustain the conviction.

12. In view of the above discussion, the conviction and sentence dated

31.03.2009 made in S.C.No.267 of 2007, imposed by the learned Sessions

Judge/Mahalir Neethi Mandram, Madurai, is set aside and the Criminal Appeal is

allowed. The fine amount, if any, paid by them shall be refunded. The bail bonds

executed by them shall stand discharged.  

NB

To

1.The Sessions Judge/Mahalir Neethi Mandram,

   Madurai.

2.The Public Prosecutor,

   Madurai Bench of Madras High Court,

   Madurai.

3.The Deputy Superintendent of Police,

   Melur, Kottampatti Police Station,

   Madurai.