IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/07/2003
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.1384 of 2002
Rahamathulla .. Appellant
-Vs-
State by Inspector of Police
Tiruppur South Police Station
Tiruppur, Coimbatore Dt.
(Cr.No. 648 of 2000) .. Respondent
This criminal appeal is preferred under S.374 of The Code of Criminal
Procedure against the judgment of the learned Additional District and Sessions
Judge, Coimbatore at Tiruppur (Fast Track Court No.5) made in S.C.No.455 of
2001 dated 30.7.2002.
!For Appellant : Mr.B.Ramamoorthy
^For Respondent : Mr.V.Jaya Prakash Narayanan
Government Advocate (Crl. Side)
:JUDGMENT
The appellant who was ranked as A-1 along with 2 others and who stood
charged under S.4 of the Dowry Prohibition Act, Ss 498-A and 304-B of I.P.C.
and found guilty under Ss 498-A and 304-B of I.P.C. and sentenced to undergo
2 years R.I. and to pay a fine of Rs.10,000/-, in default, to undergo 1 year
S.I. and 7 years R.I. respectively has brought forth this appeal.
2. The short facts necessary for the disposal of this appeal can be
stated thus:
(a) The victim Rajumma @ Rajunnisha, the daughter of P.W.1
Sathakkathullah and P.W.4 Immarammal, was married by A-1, the son of A-2 and
A-3 on 13.2.1998 in accordance with the customs and rites among Mohammedans.
At the time of marriage, Rajumma was 23 years old. P.W.5 Sathique and P.W.6
Sumaiah were the brother and sister of the deceased respectively. At the time
of marriage 15 sovereigns of gold jewels and Rs.15,000/- cash were given as
dowry. They were living happily for a short-while. Thereafter, A-1 began to
demand dowry. In the year 1999, they had a male child. Thereafter, a
separate family was set up by A-1 and the deceased at Door No.106, Asanbhava
Big Shop Lane, Tiruppur, while P.W.1 and his family were living in Door No.123
in the same Street. After the separate family was set up, A-1 continued to
demand dowry from the deceased for purchasing a gas stove, and in turn, the
demand was made to P.W.1, and he met the demand by giving Rs.4 ,500/-. After
the birth of the second child, there was a demand for jewels, and there were
intermittent demands by A-1 at the instigation of A-2 and A-3. On 13.7.2000,
P.W.6 the younger sister of the deceased, when she came back from her School,
met the deceased, by which time the deceased was weeping. P.W.6 came home and
informed the same to her parents. P.W.1 and others came to know at about 1.30
P.M. that his daughter has committed suicide in the house where she was
living with A-1. P.W.1 and others went there and found herself hanging by
using M.Os.1 and 2. They took the victim to Veeramani Hospital, where the
Doctor declared her dead. Then, they brought the dead body of the deceased to
the Government Hospital, Tiruppur. P.W.1 entertained a suspicion whether
there was some foul-play in the death of his daughter. He lodged a complaint
before Tiruppur Police Station under Ex.P1 at about 11.15 P.M. on the same
day. On the strength of Ex. P1, P.W.10 Sukumaran, Sub Inspector of Police,
Tiruppur South Police Station, registered a case in Crime No.648/2000 under
S.304(B) of I.P.C. Ex.P6 printed F.I.R. was despatched to the concerned
Magistrate’ s Court, while the copies were sent to the higher officials.
(b) P.W.9 Pankajkumar Bansal, Revenue Divisional Officer (R.D.O.)
received a copy of the same, went to the place of occurrence and enquired the
witnesses. He proceeded to the Government Hospital, Tiruppur, conducted an
inquest on the body of the deceased, examined P.Ws.1 and 4 to 6 and other
witnesses and recorded their statements. He prepared a report under Ex.P5.
He made a request to P.W.2 Dr.Selvanayaki and P.W.3 Dr.Ravichandran to conduct
postmortem. Accordingly, the autopsy was conducted by P.W.2 assisted by
P.W.3. The doctors found the following injuries.
1. A diffuse Rope Mark seen running obliquely from the left side to the right
side with knot mark seen 2″ below the right ear.
On c/s. the underlying tissues are contused.
P.Ws.2 and 3 gave Ex.P2 postmortem certificate opining that the death could
have occurred due to asphyxia due to hanging.
(c) P.W.11 K.Rangarajan, Deputy Superintendent of Police, Avinasi on
receipt of the copy of the F.I.R. on 14.7.2000, took up the investigation,
proceeded to the place of occurrence and prepared Ex.P3 observation mahazar in
the presence of P.W.8 Haniffa and one Sirajudin and Ex.P7 rough sketch. He
also made recoveries from the occurrence place M.Os.1 and 2 under Ex.P4
mahazar in the presence of the same witnesses. He examined P.Ws.4, 5, 7 and 7
and other witnesses and recorded their statements. P.W.11 arrested all the
accused on 15.7.2000 and sent them to the Judicial Magistrate No.II, Tiruppur
for judicial custody. M.Os.1 and 2 were produced before the concerned
Magistrate’s Court under Form 95. P.W.12 K.Joshi Nirmal Kumar who succeeded
to the Office of P.W.11, took up further investigation, examined P.Ws.2 and 3
Doctors and recorded their statements. On completion of the investigation, he
filed a charge sheet against the accused.
3. In order to prove the charges levelled against the accused, the
prosecution examined 12 witnesses and marked 7 exhibits and 2 material
objects. After the evidence on the side of the prosecution was over, the
accused were questioned under S.313 of Cr.P.C. as to the incriminating
materials found in the evidence of the prosecution witnesses. On the side of
the accused, 3 witnesses were examined and 5 exhibits were marked. After
considering the rival submissions and scrutiny of the materials available, the
trial Court found the appellant/A-1 guilty under Ss 498-A and 304-B of I.P.C.
and sentenced him to undergo the imprisonment as referred to above, while A-2
and A-3 were acquitted of the charges against them. Hence, the appeal is
brought forth by the appellant/A-1.
4. The learned Counsel, arguing for the appellant/A-1, with vigour
and vehemence made the following submissions.
The prosecution has miserably failed to prove the ingredients of
either the offence of dowry harassment or the offence of dowry death, as
required under the provisions of Penal Code. No evidence was put forth by the
prosecution to prove that either there was any dowry demand or any incident
has taken place soon before the alleged death of Rajumma. There was no
evidence as to the cruelty as found in the charge against the appellant. All
the witnesses examined by the prosecution were close relations of the victim.
The independent witnesses, though examined by the police official under S.161
of Cr.P.C. and statements were recorded, were not examined by the
prosecution. According to the prosecution, the occurrence has taken place in
the night hours, but the complaint was given by 11.15 P.M. No acceptable
explanation was tendered by the prosecution. Thus, the delay was fatal to the
prosecution case. According to the prosecution, there was a demand for
purchase of a gas stove. But, by documentary evidence, the defence has proved
that even prior to 1997 before the marriage, the gas stove was purchased by
the accused. The Sub Collector, who conducted the enquiry the very next day
has signed the report only on 6.9.2000, and thus, there was a huge delay. The
said delay was not explained. There were alterations and over-writings found
in the postmortem report. The prosecution made its attempt to introduce a
document calling as a suicidal note which was rightly rejected by the lower
Court. The place of occurrence, as stated by the prosecution, has not been
clearly proved. There could not have been any demand for dowry since all the
jewels worn by the victim were returned to them, after her death to the
prosecution witnesses, which fact is well admitted by them. There is evidence
to show that they were leading a happy matrimonial life before the incident,
and they were living separately also. There could not have been any occasion
for demand of dowry or harassment, which led her to commit suicide. Thus, in
the absence of any evidence and in view of all the above facts and
circumstances of the case, the lower Court should have outrightly rejected the
case of the prosecution.
5. Added further the learned Counsel that on the same evidence, the
lower Court has acquitted A-2 and A-3, but has surprisingly convicted A-1, and
hence, if view of the application of the same evidence, the appellant/A-1
should have been acquitted, and therefore, it is a fit case for acquittal, and
the appeal has got to be allowed.
6. Strongly opposing the contentions of the appellant’s side, the
learned Government Advocate (Criminal Side) would submit that the dowry demand
made on the victim has been clearly spoken to by P.Ws.1, 4, 5 and 6; that
admittedly, at the time of marriage, jewels were given; that the dowry demand
by A-1 began immediately after the birth of the first child; that they had the
separate living, and the second child was also born; that there was an
occasion when the demand of A-1 was met by payment of Rs.4,500/-; that this
fact has been clearly spoken to by P.Ws.1 and 4; that the R.D.O., who
conducted enquiry, has given a clear report after examination of the witnesses
necessary and panchayatars also stating that it was a dowry death, and she was
harassed; that the first accused examined himself as D.W.3, but nowhere has he
denied the prosecution case stating that there was no dowry harassment or
cruelty or dowry death; that it is true that there was some delay in lodging
the complaint, but the said delay has occasioned during the natural course of
events; that the parents of the deceased coming to know about the same,
proceeded to the place of her house, found her hanging and took her to
Veeramani Hospital, where she was declared dead, and thereafter the dead body
of Rajumma was taken to the Government Hospital, and only therefrom, they went
to lodge a complaint, and the said delay, in view of the available evidence,
cannot in any way affect the prosecution case; that it is true that no
independent witness was examined by the prosecution; that in the instant case
of dowry harassment and dowry death, the material witnesses, to whom the
demands were made, have been examined and they have spoken in clear terms of
the prosecution case, and thus, the prosecution has proved the case beyond all
reasonable doubts, and hence, the judgment of the lower Court has got to be
sustained.
7. This Court paid its full attention on the rival submissions made
and made a close scrutiny of all the available materials, which led the
irresistible conclusion that the appeal carries no merits.
8. Admittedly, Rajumma @ Rajunnisha aged 23 years was given in
marriage to the appellant/A-1 on 13.2.1998 according to Muslim customary
practices. It is also admitted by the appellant as D.W.3 that jewels were
given at the time of the marriage. They had two children one born in 1999 and
the other in 2000, and they had set up a separate living, after the birth of
the first child. P.W.1, the father and P.W.4, the mother along with two other
witnesses in their family have categorically spoken to the fact that there was
demand of dowry then and there by A-1. There was an occasion, when P.W.1 has
made a payment of Rs.4,500/- pursuant to the demand made by A-1 and in turn by
the deceased on P.W.1 father. According to P.W.1, after the birth of the
second child, A-1 was demanding for jewels, which in turn the deceased was
making over him, and he was assuring that he would be meeting the same after
sometime. The evidence of P.W.1, despite full cross examination, as to the
dowry demand is in tact and not affected in any way. The Court is unable to
see any circumstance or reason why their evidence should be disbelieved or
seen with suspicion. At this juncture, it remains to be stated that A-1 who
was facing a trial for dowry harassment and dowry death of his wife, though
examined himself as D. W.3, has not uttered a single word that he did not do
anything of that sort. As a responsible husband, A-1 is expected to give a
statement under what circumstances and reasons his wife committed suicide. It
is not his case that she was insane or unsound. But, they were living
happily. It is true that committing of suicide may be due to number of
reasons. But, what led her to commit suicide, under the stated circumstances,
has got to be necessarily explained by him. The Court is of the considered
view that the explanation tendered by the appellant has to be looked into from
the available evidence as narrated above. The explanation tendered by the
accused that after the birth of the second child, at the instance of his
wife’s mother, she was fixed with copper tea, which developed some pain, and
due to that, she could not tolerate, and thus, she committed suicide is too
flimsy a reason to be accepted.
9. In the instant case, the R.D.O. who received the copy of the
F.I.R. as to the death of the victim, has proceeded to the spot, made an
enquiry procedurally, recorded the statements of the panchayatars and other
witnesses and gave a detailed report, wherein he has stated that it was only
due to the dowry harassment, she has committed suicide. It is true that no
independent witness has been examined. In a case like this, where there was
dowry demand and cruelty to a spouse, and consequently, she has committed
suicide, and the necessary material facts could be spoken well by her parents,
who have been examined as P.Ws.1 and 4, any number of independent witnesses,
if examined, cannot speak effectively to the facts that took place in the
family life of the spouses. Even if they are examined, their evidence cannot
be given much weight as to that of the witnesses like parents of the victim.
The Court is able to notice some delay in lodging the complaint, since the
occurrence has taken place at 1.00 A.M. and the complaint has been given by
11.15 P.M., and after that, a case was registered by P.W.10 Sub Inspector of
Police. But, the Court has to point out that after receiving the information,
P.Ws.1 and 4 proceeded to the house of the victim, took her to Veeramani
Hospital, where she was declared dead, and from there, they took the dead body
of Rajumma to the Government Hospital, which consumed considerable time, and
hence, the explanation given by the prosecution that the delay has taken place
in the ordinary course of events has got to be accepted. That apart, even
assuming that there is a delay, that delay is neither inordinate, nor it has
given way to any embellishment in the prosecution case.
10. It is a fact not disputed that the victim died due to hanging,
and the same is spoken to by the postmortem Doctor along with the certificate.
It is pertinent to note that she has committed suicide within 7 years from the
date of her marriage, and hence, the lower Court was perfectly correct in
finding on the evidence available that the appellant/A-1 subjected the victim
to cruelty; that soon before her death, she was subjected to cruelty and
harassment by her husband, the appellant; and that the appellant/A-1 was
responsible for the victim committing suicide. The lower Court convicted the
appellant/A-1 under Ss 498-A and 304-B of the Indian Penal Code and sentenced
him to undergo R.I. for 2 years along with a fine of Rs.10,000/- and in
default of payment of fine, he shall undergo 1 year S.I. under S.498-A of
I.P.C. and awarded minimum punishment of 7 years R.I. under S.304-B of
I.P.C. The Court is of the considered view that there is nothing to interfere
either in the conviction or the sentence passed by the Court below.
11. For what has been stated above, this Court finds no merit in the
appeal. Accordingly, it is dismissed.
Index; Yes
Internet: Yes
To:
1) The Additional District and Sessions Judge (Fast Track
Court No.5), Tiruppur, Coimbatore District.
2) The Principal District and Sessions Judge, Coimbatore.
3) The Superintendent, Central Prison, Coimbatore.
4) The Public Prosecutor, High Court, Madras.
5) The D.I.G. of Police, Chennai 4.
6) Mr.V.Jaya Prakash Narayanan, Government Advocate
(Crl. Side), High Court, Madras.
7) The Inspector of Police, Tiruppur Police Station
Tiruppur.
nsv/