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.
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