\ IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27/04/2007
CORAM
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
CRIMINAL APPEAL No.723 of 2001
1. Selvaraj
2.Jayalakshmi ... Appellants
Vs
State
rep by The Assistant Commissioner of Police
Law & Order
Kilpauk Range
Chennai. ... Respondent
Criminal Appeal filed against the Judgment of
conviction, dated 26.07.2001, made in S.C.No.269 of 1999 on
the file of the II Additional Sessions Judge, Chennai.
For appellants : Mr.S.Shanmugavelayutham, Senior Counsel for Mr.R.Anand
For respondent : Mr.Hasan Mohamed Jinnah, Govt. Advocate (crl. side)
J U D G M E N T
This Criminal Appeal has been preferred by the
appellants / accused challenging the judgment of conviction,
dated 26.07.2001, made in S.C.No.269 of 1999 on the file of
the II Additional Sessions Judge, Chennai, whereby the
appellants 1 and 2 were found guilty of the offence
punishable under Sections 498A IPC and sentenced each of
them to undergo one year RI and to pay a fine of Rs.5,000/-
each with default sentence. Further, the first appellant /
A1 was found guilty under Section 304 B IPC and sentenced to
undergo RI for 10 years and to pay a fine of Rs.10,000/-
with default sentence. The sentence imposed on the first
appellant was ordered to run concurrently.
2. The brief facts of the prosecution case are as
follows :
The deceased Sowmya was the wife of the
first appellant / A1. The first appellant / A1 is the son of
the second appellant / A2. The first appellant and the
deceased Sowmya were leading their matrimonial life at No.2,
Karukathamman Koil Street, Chetpet, Chennai, and a child was
also born to them. As per the prosecution case, the
appellants were causing cruelty on the deceased continuously
by demanding dowry. As per the complaint, Ex.P.1, the first
appellant / A1 had demanded Rs.10,000/- and caused cruelty
even while she was in family way. Accordingly, the amount of
Rs.10,000/- was given to the first appellant by the parents
of Sowmya, in addition to the jewels and amount Rs.10,000/-
already given during the marriage of the deceased and the
first appellant. According to P.W.1, the mother of the
deceased, even after the birth of the child, the first
appellant / A1 was causing cruelty by beating the deceased,
hence, she was in the house of her parents for about 11
months, even after the birth of the child. Subsequently, the
first appellant, his younger brothers and others came to the
house of P.W.1 and gave assurance that the deceased Sowmya
would not be subject to cruelty. On the assurance, P.W.1
sent her daughter, the deceased with the child, but the
first appellant / A1 was not satisfied with the jewels
presented by the parents of Sowmya for the child.
Subsequently, P.W.1 and her brothers went to the house of
the appellants / accused and due to the ill treatment and
cruelty met out by the deceased Sowmya there, she was
brought to the house of her parents and again at the
instance of the appellants, she could see the face of f the
elders, P.W.1 sent the deceased with the child to the house
of the appellants. Subsequently, when she went to the house
of the appellants, she could see the face of the deceased
found swollen due to beating, but Sowmya did not say the
reason, as she was scared of the appellants. On 05.10.1998
at about 7 p.m, brother of the first appellant, Kumar came
to the house of P.W.1 in a van and informed that Sowmya was
dead due to cholera and the dead body was kept at the
Kilpauk Government Hospital. She went to Hospital and found
the dead body of Sowmya with ligature mark on the neck.
Then, she gave the complaint, Ex.P.1 before the respondent
police against the appellant / accused 1 and 2 that her
daughter, the deceased had been subjected to cruelty and
done to death.
3. It is seen that P.W.2, Parasuraman, the father of
the deceased, P.W.3, brother of the deceased have also
deposed similar evidence on the same line of the evidence
adduced by P.W.1. According to P.W.4, an independent
witness, she found the deceased hanging at the house of the
appellants / accused, at about 3 p.m, on the date of
occurrence, but subsequently, she turned hostile. Hence, she
was cross-examined by the Government Advocate. As per the
evidence of P.W.5, the doctor who conducted postmortem on
the dead body of the deceased Sowmya, the following injuries
were found :
“An incomplete, oblique, dark brown,
ligature abrasion on the front and sides
of the neck. 29 x 2 cms below the level
of thyroid cartilage. The ligature
abrasion 9 cms below the chin and 8 cms
above the suprasternal on front of the
neck. The ligature abrasion is 6 cms and
4 cms below the right and left mastoid
process on the sides of the neck. On the
base of the neck, the ligature abrasion
merges with the hair line. On dissection
the base of ligature abrasion is pale
and dry. The subcutaneous soft tissues
of the neck are pale. The hyoid bone and
other laryngeal cartilages are intact.”
The Doctor has opined that the deceased would appear to have
died of asphyxia due to hanging. It is seen that the medical
evidence supports the prosecution case that the death of
Sowmya occurred otherwise than under normal circumstances.
4. Mr.S.Shanmughavelayutham, learned Senior Counsel
appearing for the appellant / accused would contend that the
prosecution has not established the guilt against the
accused beyond reasonable doubt. According to him, P.Ws.1 to
3 are the parents and the brother of the deceased and as
such they are interested witnesses, hence, it could not be
construed that the guilt against the first appellant under
Sections 498A and 304 B IPC and the guilt against the second
appellant under Section 498A have been proved.
5. Per contra, Mr.Hasan Mohamed Jinnah, learned
Government Advocate (crl.side) submits that there is
sufficient evidence to record that there was dowry
harassment and also the cruelty caused on the deceased by
demanding dowry and therefore, as per Section 113 of Indian
Evidence Act, the trial court has rightly drawn the
presumption that the deceased died due to dowry death and
therefore, there is no error in the judgment of the trial
court to be interfered with.
6. The Hon’ble Supreme Court in the decision,
T.Aruntperjunjothi vs. State, reported in (2006) 2 SCC (Cri)
528, has held the following essential ingredients for
convicting the accused under Section 304B IPC. As per the
ruling, (i) death of a woman must have been caused by any
burns or bodily injury or otherwise than under normal
circumstances; (ii) such death must have occurred within
seven years of marriage; (iii) soon before her death she was
subjected to cruelty or harassment by her husband or
relative of her husband; (iv) such cruelty or harassment
must be in connection with the demand of dowry; and (v) such
cruelty is shown to have been meted out to the woman soon
before her death.
7. In the instant case, it is not in dispute that the
deceased Sowmya died within 7 years after her marriage, with
the first appellant / A1. The death was also not under
normal circumstance. The younger brother of the first
appellant and the son of the second appellant, who was
examined as P.W.9, Gunasekaran has deposed that on the date
of occurrence between 3 p.m and 4.30 p.m, on information, he
went and saw the dead body of Sowmya was hanging in the
house of the appellants and the saree knot used for hanging
was released by himself and others, but on the advice of the
others, the death was informed to the police only at 9 p.m,
on the date of occurrence. Another brother of the first
appellant, Kumarasamy, who was examined as D.W.1 has deposed
that on the date of occurrence, he proceeded to the village
of P.W.1 and P.W.2 by taxi and informed about the death of
Sowmya and the taxi bill has been marked as Ex.D.3. He has
admitted that the first wife of the first appellant died due
to blast of a stove. He has admitted that the parents of the
deceased Sowmya had given a gift of 5 sovereign gold to the
first appellant during marriage, but denied the alleged
dowry amount of Rs.10,000/- paid by them. He has stated that
Sowmya was very poor and her parents were living in hut and
she was married by A1, with an intention of looking after
the daughter born through the first wife of the appellant.
Had the parents of the deceased were very poor, they could
not have offered 5 sovereigns of gold to the first appellant
on the date of marriage as admitted by him.
8. According to P.W.9, the deceased was found hanging
in the house of the appellants between 3 p.m and 4.30 p.m,
but there is no reason, why there was a delay in intimating
the occurrence to the police. P.W.1 has deposed that on
05.10.1998, the brother of the first appellant came to her
house in a car and informed that Sowmya died due to cholera
and the dead body was kept at Kilpauk Government Hospital.
The said incorrect information given to the parents of the
deceased by D.W.1 about the cause of death has not been
rebetted by the appellants, while they were questioned under
Section 313 Cr.P.C.
9. In the decision Trimukh Maroti Kirkan vs. Stateof
Maharashtra, reported in 2007 Crl.L.J. 20, the Hon’ble
Supreme Court has held thus “The demand for dowry or money
from the parents of the bride has shown a phenomenal
increase in last few years. Cases are frequently coming
before the Courts, where the husband or in-laws have gone to
the extent of killing the bride if the demand is not met.
These crimes are generally committed in complete secrecy
inside the house and it becomes very difficult for the
prosecution to lead evidence. No member of the family, even
if he is a witness of the crime, would come forward to
depose against another family member. The neighbours, whose
evidence may be of some assistance, are generally reluctant
to depose in Court as they want to keep aloof and do not
want to antagonize a neighbourhood family. The parents or
other family members of the bride being away from the scene
of commission of crime are not in a position to give direct
evidence which may inculpate the real accused except
regarding the demand of money or dowry and harassment caused
to the bride. But, it does not mean that a crime committed
in secrecy or inside the house should go unpunished.”
10. As found by the Hon’ble Apex Court, it is very
difficult for the prosecution to lead evidence, as the crime
relating to dowry death are generally committed in complete
secrecy inside the house and no member of the family, even
if he is witness to the crime, would come forward to depose
evidence against other family member.
11. Here in the instant case, Sowmya, the wife of the
first appellant had died of hanging and hence, it is not a
death under normal circumstance. The death had taken place
at the residence of the appellants, admittedly during day
time between 3 p.m, and 4.30 p.m. In the 313 questioning the
appellants have simply denied the incriminating evidence of
the prosecution against them as false. They have not even
stated as to what was the reason for Sowmya, the wife of the
first appellant for committing suicide by hanging at his
residence between 3 p.m, and 4.30 p.m.
12. Apart from P.W.1 to P.W.3, P.W.8 and P.W.12 have
also deposed that there was dowry harassment. The appellants
have not denied the earlier panchayat and she was taken to
appellant.s house only 9 months after the birth of the
child. Merely, on the ground that the witnesses are close
relatives, their evidence need not be discarded, but the
Court has to scrutinize their evidence with due care. Here
in this case, the independent witness, P.W.4 is a tenant in
the house of the appellants and P.W.7, one of the mahazar
witnesses turned hostile. The trial court, considering the
evidence of P.W.1 to P.W.3 and other witnesses, has found
that there was a dowry harassment.
13. As per the decision, Sham lal vs. State of Haryana,
reported in 1997 SCC (Cri) 759, to draw the presumption of
dowry death, under Section 113 B of Evidence Act, it is
imperative to prove that soon before her death, the wife was
subjected to cruelty and harassment for or in connection
with the demand for dowry.
14. As per the evidence of P.W.1, when she went to the
house of the appellants, few days prior to the date of
death, she found her daughter.s face swelling due to beating
and the deceased could not say the reason, as she was scared
of the first appellant. The evidence of P.W.8 also
corroborates the same. On the facts and circumstances, I am
of the considered view that the court can draw the inference
under Section 113 B of Indian Evidence Act, since offence
under Section 304 B IPC has been made out.
15. Section 113 B of Indian Evidence Act reads as
follows :
113-B Presumption as to dowry death : – When the
question is whether the person has caused 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.
16. Therefore, contrary to presumption under Section
113 B of Evidence Act, has to be established by the accused.
In the normal circumstances, there can be no possibility for
the deceased to commit suicide, leaving her 1 + year old
baby. There is no satisfactory explanation or defence as to
why the deceased committed suicide and that too during day
time at the residence of the appellants. The silence of the
first appellant / A1 would draw the inference that he was a
cause of her death. Therefore, I could find no error or
infirmity in the view taken by the court below, so fare as
the first appellant / A1 is concerned in convicting him
under Sections 498A and 304 B IPC.
17. As far as the second appellant / A2 is concerned,
there is no direct evidence available on record against her
with regard to demand of dowry and she was aged above 60
years on the date of occurrence. Hence, I am of the
considered view that the guilt against the second appellant
/ A2, under Section 498A IPC has not been proved beyond
reasonable doubt, and to meet the ends of justice, I find it
reasonable to give benefit of doubt to the second appellant
/ A2 and found her not guilty under Section 498A IPC.
18. In the result, confirming the conviction and
sentence imposed by the court below, the appeal so far as it
relates to the first appellant / A1 is dismissed. So far as
it relates to the second appellant / A2 is concerned, the
appeal is allowed and the conviction and sentence, imposed
on her by the court below is set aside.
19. As the first appellant / A1 is on bail, the trial
court is directed to secure the first appellant / A1 to
under go the remaining period of sentence. The fine amount,
if any paid by the second appellant / A2 shall be refunded
to her forthwith and the bail bond, if any executed shall be
discharged.
tsvn
To
1. The II Additional Sessions Judge
Chennai.
2. The Assistant Commissioner of Police
Law & Order
Kilpauk Range
Chennai.
3. The Public Prosecutor
High Court of Madras
Chennai.
[PRV/10439]