BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30/09/2009
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Crl.A(MD)No.222 of 2004
1.Chelian
2.Ramiah
3.Chitrayee .. Appellants/
Accused 1 to 3
Vs
State, rep. by the
Assistant Commissioner of Police,
Melur,
Madurai District.
(On the file of
Keelavalavu Police Station
in Crime No.71 of 2002) .. Respondent/
Complainant
Prayer
Criminal appeal is filed under Section 374 of Cr.P.C., against the
judgment dated 30.11.2004 passed in Sessions Case No.473 of 2003 by the learned
Sessions Judge, Magalir Neethimandram, Madurai.
!For appellants ... Mr.K.Jaganathan
^For respondent ... Mr.L.Murugan
Govt. Advocate (Crl. side)
* * * * *
:JUDGMENT
This criminal appeal has been preferred against the judgment dated
30.11.2004 passed in Sessions Case No.473 of 2003 by the learned Sessions Judge,
Magalir Neethimandram, Madurai.
2. The three appellants are the husband of the deceased wife, her father
in law and mother-in-law and they stand convicted and sentenced to undergo
rigorous imprisonment for seven years for an offence under Section 304-B I.P.C.
and to undergo rigorous imprisonment for three years and to pay fine of Rs.500/-
in default to undergo rigorous imprisonment for six months under Section 498-A
I.P.C.
3. The case of the prosecution is as follows:
P.Ws.1 to 3 are brother, father and mother of the deceased respectively.
The marriage of the deceased Santhal and the accused No.1 was solemnized on
10.04.2000. During the marriage, she was presented with 15 sovereigns of jewels
and cash of Rs.16,000/- to purchase a two wheeler, apart from household articles
worth about Rs.30,000/-. After the marriage, the deceased lived with her
husband and in-laws jointly in Palayurpatti village in Melur Taluk. Three
months after the marriage, the accused demanded Rs.5000/- for agricultural
operations and forced the deceased to get the same from her parents. They
physically tortured her by beating her and on one occasion, they broke the ear-
ring and on another occasion, they palled and snapped her chain. Meanwhile, the
deceased became pregnant. Again they pressurized her to get Rs.5000/- from her
parents, but her parents could not satisfy the said demands and hence retained
their daughter in their house. She gave birth to a male child. She reported
the demand and the ill-treatment suffered by her to an independent witness P.W.4
Arumugam of Kottakudi Village. After 11 months, at the intervention of the
elders, the deceased was taken back to her matrimonial home with the first
accused. But she was not happy and informed her brother through phone that she
was tortured by the accused persons. While so, on 13.05.2002 the parents of the
deceased were informed through phone that the deceased had hung herself as also
her child. Immediately, the parents of the deceased P.Ws.2 and 3 and her
brother P.W.1 rushed to the house of the accused and saw the body of the
deceased and her child laid on the floor in her matrimonial home and thereafter
P.W.1 lodged a complaint (Ex.p1) to Keelavalavu Police.
(ii) P.W.9, the Sub-Inspector of Police registered the case in Crime No.71
of 2002 under Section 174 Cr.P.C. and he has deposed that earlier he received
information over the phone from P.W.5, the Village Administrative Officer of
Ambalakaranpatti,rushed to the scene of occurrence and thereafter he received
the complaint from P.W.1 on the spot, returned to the Police Station at 12.00
Noon and registered the case.
(iii) P.W.12, the Deputy Superintendent of Police took up investigation
and rushed to the Palayurpatti Village, prepared an Observation Mahazar, Ex.P2,
where P.W.6 and one Karuppaiah signed and also drew a Rough Sketch Ex.P14. At
about 15.00 hours, he recovered M.O.1, rope under Ex.P3. Then he recorded the
statement of P.Ws.1 to 4 and P.W.6 and other witnesses namely Irulayee, Soman,
Lakshmi, Parimala, Karuppaiah. On 14.05.2002 at 21.00 hours, he has altered the
case under Ex.P15 to one under Section 304-B and 498-A I.P.C. On 15.05.2002 at
06.00 a.m., the accused Nos.2 and 3 were arrested near Manthai and in
continuation of his investigation, he arrested the first accused at 07.00 a.m.
at Melur Bus Stand on 17.05.2002. On 18.05.2002 he recorded the statement of
P.Ws.5,7,8 and 9 and also recorded the statement of P.W.11, the Revenue
Divisional Officer. P.W.12 examined P.W.4 Arumugal, Muthuraju, Periyakaruppan
Konar, Seenivasan and Rudhrapandi on 14.05.2002.
(iv) In the meanwhile, P.W.11, the Revenue Divisional Officer conducted an
inquest over the dead body of Santhal and the child in front of the
panchayathars between 02.30 p.m. and 06.30 p.m. The Inquest Report is Ex.P9.
He recorded the statement of P.Ws.1 to 3 and the accused Nos.2 and 3 and the
statements of panchayathars. The statements of the witnesses is Ex.P10 series
and statements of panchayathars is Ex.P11 series. He forwarded his opinion
Ex.P12 to the Deputy Superintendent of Police, Melur. After receiving the Post
Mortem Report on 29.07.2002, he has submitted the final report Ex.P13, to the
District Collector.
4. On the production of the accused, charge under Sections 498-A and 304-B
I.P.C. were framed and when examined, they pleaded not guilty to the charges.
5. On conclusion of trial and on questioning under Section 313(1) of
Cr.P.C. the accused denied the offences. No witnesses were examined on behalf
of the accused nor were any material objects.
6. The trial Court on examination of the witnesses and materials available
before it and also on perusal of the records, found the accused guilty and
convicted and sentenced them as stated supra.
7. Heard the learned counsel for the appellant and the learned Government
Advocate.
8. The learned counsel for the appellants primarily attacks the finding of
conviction under Section 304-B I.P.C. placing heavy reliance on the decision of
the Hon’ble Supreme Court in State of Rajasthan v. Teg Bahadur and others,
(2005) SCC (Cri) 218 and the decision of the learned single Judge of this Court
in Michelraj and Another v. State rep. by Deputy Superintendent of Police, All
Women Police Station, Aranthangi, Pudukkottai District, (2008)1 MLJ (Crl.) 593.
In State of Rajasthan v. Teg Bahadur and others, (2005) SCC (Cri) 218, the
Hon’ble Supreme Court has held as follows:
“18.Our attention was drawn to Section 113-B of the Evidence Act and
Section 304-B of the Indian Penal Code by the learned counsel appearing for the
accused. A conjoint reading of Section 113-B of the Indian Evidence Act and
Section 304-B of the Indian Penal Code shows that there must be material to show
that soon before her death the victim was subjected to cruelty or harassment.
The prosecution has to rule out the possibility of a natural or accidental death
so as to bring it within the purview of “death occurring otherwise than in
normal circumstances”. For the above proposition, learned counsel appearing for
the accused, cited the judgment of this Court in the case of Hira Lal v. State
(Govt. of NCT), Delhi AIR 2003 SC 2865 : (2003) 8 SCC 80. In that case this
Court observed thus:
“The expression ‘soon before’ is very relevant where Section 113-B of the
Evidence Act and Section 304-B IPC are pressed into service. The prosecution is
obliged to show that soon before the occurrence there was cruelty or harassment
and only in that case presumption operates. Evidence in that regard has to be
led by the prosecution. ‘Soon before’ is a relative term and it would depend
upon the circumstances of each case and no straitjacket formula can be laid down
as to what would constitute a period of soon before the occurrence. It would be
hazardous to indicate any fixed period, and that brings in the importance of a
proximity test both for the proof of an offence of dowry death as well as for
raising a presumption under Section 113-B of the Evidence Act. The expression
‘soon before her death’ used in the substantive Section 304-B IPC and Section
113-B of the Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the expression ‘soon before’ is not
defined. A reference to the expression ‘soon before’ used in Section 114
Illustration (a) of the Evidence Act is relevant. It lays down that a court may
presume that a man who is in the possession of goods ‘soon after the theft, is
either the thief or has received the goods knowing them to be stolen, unless he
can account for their possession’. The determination of the period which can
come within the term ‘soon before’ is left to be determined by the courts,
depending upon facts and circumstances of each case. Suffice, however, to
indicate that the expression ‘soon before’ would normally imply that the
interval should not be much between the cruelty or harassment concerned and the
death in question. There must be existence of a proximate and live link between
the effect of cruelty based on dowry demand and the death concerned. If the
alleged incident of cruelty is remote in time and has become stale enough not to
disturb the mental equilibrium of the woman concerned, it would be of no
consequence.”
9. It is the contention of the learned counsel for the appellants that in
the instant case, the requirement of proof of the deceased having been subjected
to cruelty or harassment soon before the death was not made out. Though P.W.1,
the elder brother of the deceased wife, had deposed to an earlier occasion,
where the deceased wife was beaten by the accused and of a demand of Rs.5000/-
having earlier been made and of the inability to meet such demand. P.W.2,
father of the deceased wife, had also spoken of a demand for Rs.5000/-. P.W.3,
the mother of the deceased wife, again had spoken of the deceased having been
beaten earlier and of the demand of Rs.5000/- on two occasions as already spoken
to by P.W.1. All these demands admittedly were of a date much earlier to the
death of the deceased and her child. It was the evidence of the same witnesses
that the deceased came to her parental house and stayed there for eleven months
after the birth of the child and that after mediation at the instance of elders,
the deceased wife was taken back to her matrimonial home. The deceased and her
child had met death by hanging at her own instance, 60 days after she returned
to her matrimonial home. Excepting a stray line in the evidence of P.W.1 that
the deceased had informed over phone on the sixtieth day i.e., near to the
occurrence of being ill-treated and harassed, none of the other witnesses had
spoken of any ill-treatment or harassment soon before the death. The finding
that there was indeed ill-treatment or harassment of such manner cannot be
arrived at on the mere say so of P.W.1, when particularly it was admitted by the
Investigating Officer that there was an earlier dispute resulting in complaint
being lodged by P.W.1 against A1. The submission of the learned counsel for the
appellants in the light of the decision of the Hon’ble Supreme Court would in
the facts and circumstances of the case, have to be accepted and it has to be
held that no offence under Section 304-B I.P.C. has been proved against the
appellants/accused.
10. From the evidence on record, it is quite clear that the offence under
Section 498-A I.P.C. stand made out against the appellants/accused. P.W.1 has
spoken to beating of the deceased by the accused. He deposed that when the
accused demanded Rs.5000/- at the first instance, it was given to them. When
they demanded Rs.5000/- again, he was unable to meet the demand. P.W.2, the
father also has spoken of the demand of Rs.5000/-. His evidence is not as
elaborate as that of P.W.1. But it is to be remembered that he was aged of 70
years at the time of deposing before the Court. P.W.3, the mother of the
deceased wife also has spoken to the frequent quarrels and of two demands of
Rs.5000/-. P.W.4, who is a resident of the village, at which P.Ws.1 to 3 reside
and also related to them, has spoken to the deceased having told him of the ill-
treatment meted out to her by the accused. The circumstance that, the deceased
wife had gone to her parental home in the very early months of pregnency and
also had stayed there for upto eleven months after the birth of the child, would
go to show that not all was well between the accused and the deceased wife.
This position is further substantiated through the evidence of the Investigating
Officer that P.W.1 had earlier given a complaint against the accused, since he
had been beaten by the first accused, when talks were held regarding the marital
relationship of A1 and the deceased wife. In the above circumstances, there is
no room for doubt that the offence committed by the appellants/accused under
Section 498-A I.P.C. stands proved.
11. It is submitted by the learned counsel for the appellants that A2 and
A3 are presently of age 67 and 62 respectively. The role played by A1 would be
only marginal, since admittedly he was working at a Hotel in Bangalore. The
submission that A1’s role is marginal, since he was in Bangalore, does not merit
acceptance, since there is clear and cogent evidence that he had beat the
deceased wife. Considering the totality of the facts and circumstances of the
case, I am of the opinion that while confirming the conviction under Section
498-A I.P.C., some leniency may be shown in the matter of sentencing, since A2
and A3 are ripe in age and they would require the support of A1.
12. In the result, the conviction by the lower Court for offence under
Section 304-B I.P.C. as against the appellants herein is set aside. The
conviction under Section 498-A I.P.C. in respect each of the appellants/accused
is confirmed and each of them shall undergo rigorous imprisonment for a period
of 18 months for such offence and pay fine of Rs.500/- in default undergo
rigorous imprisonment for three months. The trial Court is directed to take
appropriate action so as to have the accused serve out the remainder of the
sentence. The period already undergone by the accused shall be set off under
Section 428 Cr.P.C.
smn
To
1.The Sessions Judge,
Magalir Neethimandram,
Madurai.
2.The Assistant Commissioner of Police,
Melur,
Madurai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.