BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/08/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE A.SELVAM CRIMINAL APPEAL NO.201 OF 1998 1.Illango 2.Saroja Ammal 3.Vasuki Ammal .... Appellants Vs. 1.State rep. By the Inspector of Police, Meignanapuram Police Station. 2.The Deputy Superintendent of Police, Tirunelveli Crime Branch, Tirunelveli. .... Respondents This criminal appeal is preferred under Section 374 Cr.P.C against the judgment of the learned Additional Sessions Judge-cum-Chief Judicial Magistrate, Tuticorin in S.C.No.48 of 1991, dated 3.2.1998. !For Appellants .... Mr.C.Gopinath, SC for Mr.P.Andiraj ^For Respondents .... Mr.P.N.Pandidurai, APP :JUDGMENT
(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This appeal has arisen from the judgment of the Additional Sessions
Division, Tuticorin made in S.C.No.48 of 1991, wherein these appellants along
with the fourth accused stood charged under Sections 498(A) and 304(B) IPC and
tried and A-1 to A-3 were found guilty under Section 498(A) IPC and sentenced to
undergo two years RI along with a fine of Rs.1000/-, in default to undergo 3
months RI and A-1 to A-3 were also found guilty under Section 304(B) IPC and
were sentenced to undergo life imprisonment and the sentences to run
concurrently, and the fourth accused was acquitted of the said charges.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
a)P.W.2 is the mother of the deceased Chitradevi. P.W.1 is the brother of
the deceased. P.W.14 is the uncle of the deceased. The marriage between the
deceased and the first accused took place on 12.2.1986. At the time of marriage,
27 sovereign of gold jewels were given to the deceased. After the marriage, the
deceased and the first accused were living at Vellore, since the first accused
was working as an Engineer at Vellore. After 10 days, P.W.1 took seethana
articles and went to Vellore to see her sister, the deceased. At that time, A-2
expressed her disappointment because bureau and vessels were not given at the
time of marriage, and she has demanded for the same. During Pongal festival, A-1
and the deceased came to the house of P.W.2. At that time, the deceased was not
happy. When she was asked about the same, she replied that her mother-in-law/A-2
was harassing her as she had not brought dowry and the deceased asked her mother
to give bureau and 5 sovereigns of gold jewels in view of the demand made.
After Pongal festival, A-1 and the deceased went to Vellore.
b)At the time of Deepavali festival, A-1 and the deceased came to the
house of P.W.2. At that time, the deceased was weeping and telling that the
demand of bureau, chain and also TV was made. Since TV was not given, they left
the house of P.W.2. During the seventh month of pregnancy of the deceased, she
was brought back to her mother’s house after performing Valaikappu festival.
Then, a female child was born on 15.1.1987. One week later, all the accused
went to the hospital and see the new born child and all the accused also
attended the naming ceremony of the child performed. Thereafter, on 5.4.1987,
the deceased was taken to the house of A-3 situated at Koomadikottai.
c)P.W.3 was working as Clerk in Tamil Nadu Mercantile Bank at
Kommadikottai. On 10.4.1987 at about 11.00 a.m. on hearing the noise coming
from the backside of the Bank, he rushed to the residential quarters of A-4,
where he saw the deceased was standing with burn injuries. On hearing the
noise, P.W.7, who is a neighbour, also rushed to the house of A-4 and knocked
the eastern side door. A-3 came and opened the door. When P.W.7 questioned A-
3, she fell down and she could not give reply. P.W.7 also saw burn injuries on
the legs and hands of A-3 and also saw the deceased lying in a room. P.W.3 and
others made an attempt to extinguish the fire. Thereafter, the deceased was
taken to Rajan Hospital at Thisayanvillai by Car. A-2, A-3 and P.W.7 also
accompanied the deceased to the hospital. Thereafter, P.W.3 tried to contact A-
4 over phone. Then, he went to Rajan Hospital at Thisayanvillai and met
Dr.Rajan. As extensive burn injuries were found on the body of the deceased, the
Doctor advised them to take the deceased to Putheri Hospital at Nagercoil.
Accordingly, the deceased was taken to Putheri Hospital. When the deceased was
taken to the hospital by stretcher, P.W.5, who was working as Nurse in the
hospital, enquired A-3 as to how the deceased sustained burn injuries, for which
A-3 relied that while preparing incense for the child, the deceased caught fire.
When P.W.5 removed the cloth, kerosene smell came from it.
d)On 10.4.1987 at about 2.00 p.m., the deceased was admitted in the
hospital. At about 11.40 p.m., she died. Thereafter, P.W.6, the Public
Relations Officer, Putheri Hospital, sent the death intimation to Vadaseri
Police Station. P.W.8, the Head Constable attached to Vadaseri Police Station,
received the death intimation, proceeded to Putheri Hospital and recorded the
statement Ex.P.6, at about 12 O’clock given by A-3 and returned to the Police
Station. He registered the case at about 1.00 a.m. in Crime No.160 of 1987 under
Section 174 Cr.P.C and prepared Ex.P.7, the FIR and sent the same to
Meignanapuram Police Station and also to the concerned Executive Magistrate. On
11.4.1987 at about 7.30 a.m., P.W.11, the Sub Inspector of Police, Meignanapuram
Police Station, received the FIR and sent the same to the said Police Station.
He registered a case in Crime No.112 of 1987 under Section 174 Cr.P.C. He sent
the FIR to the R.D.O., Tuticorin, since the death has occurred within 7 years of
the marriage in a suspicious manner. But, the R.D.O., Tuticorin, did not take
the case for investigation, since the death was occurred at Nagercoil Hospital.
Hence, he returned the FIR to Nagercoil R.D.O, who also did not take the case
for investigation, since the occurrence took place in the jurisdiction coming
under Tuticorin Division.
e)On 12.4.1987 in between 2.00 p.m. and 3.30 p.m., the R.D.O., Tuticorin
conducted inquest over the dead body of the deceased. Ex.P.1, the inquest
report, was sent to the District Collector along with Ex.P.12, the report of the
R.D.O. On 12.4.1987 at about 4.40 p.m., P.W.10, the Doctor, attached to the
Government Hospital, Nagercoil, on requisition, conducted post-mortem on the
dead body of the deceased and she opined that the deceased could have been died
due to extensive burn injuries about 30 hours prior to the post-mortem
examination. Ex.P.8 is the post-mortem certificate. As the R.D.O., Tuticorin
did not give any order to P.W.11, the Sub Inspector of Police, he did not
conduct any enquiry in the case. After receiving the order on 31.10.1987, P.W.11
took up investigation. He enquired P.Ws.3 and 7. Thereafter, he sent the case to
P.W.12, the Inspector of Police, Sathankulam Circle.
f)As per the instructions given by the Assistant Superintendent of Police,
Srivaikuntam, on 5.12.1987, P.W.12, the Inspector, took up the investigation.
He examined P.Ws.4 and 10 and recorded their statements. On 6.12.1987, he
examined P.W.7 and recorded his statement. On 7.12.1987, P.W.12 examined P.Ws.4
and 5. The preliminary investigation reveals that there is no material
available as against the accused persons for framing charges, since it is a case
of accidental death. He conducted investigation from 5.12.1987 to June, 1989.
g)As per the order, dated 22.12.1989, sent from the office of the Deputy
Inspector General of Police and as per the CBCID order, P.W.13, the Inspector,
CBCID, took up the investigation on 5.2.1990. On 24.3.1990, he examined P.W.7
and recorded his statement. He drew rough sketch Exs.P.10 and 11. On 3.6.1990,
he examined P.Ws.1 and 2 and recorded their statements. On 9.6.1990, he
examined P.W.4, the Doctor, and recorded his statement. On 16.6.1990, he
examined P.W.3 and recorded his statement. On 18.6.1990, he examined the R.D.O.,
Tuticorin, and recorded his statement. On 22.6.1990 he altered the case from
Section 174 Cr.P.C to Section 306 and 498(A) IPC and sent the report to the
Court. On 14.7.1990, he sent the requisition to the Judicial Magistrate,
Srivaikuntam, for recording S.164 Cr.P.C. statement from P.W.3 and one Enamuthu.
P.W.9, the Judicial Magistrate, recorded S.164 Cr.P.C. statement from P.W.3,
which is Ex.P.2. On 6.8.1990, P.W.13 examined P.Ws.11 and 12 and recorded their
statements. After completion of the investigation, the Deputy Superintendent of
Police filed the charge sheet on 22.8.1990.
h)The case was committed to the Court of Sessions and necessary charges
were framed. In order to substantiate the charges, the prosecution has examined
14 witnesses and relied on 12 exhibits and no M.Os. were marked. On completion
of the evidence on the side of the prosecution, the accused were questioned
under Section 313 Cr.P.C as to the incriminating circumstances found in the
evidence of prosecution witnesses, which they flatly denied as false. No
defence witness was examined, but only one document was marked as Ex.D.1. The
trial court heard the arguments advanced by either side and had a scrutiny of
the materials available. In consideration of the submissions made, the trial
court found the accused Nos.1 to 3 guilty under Sections 498(A) and 304(B) IPC
and awarded punishment as referred to above, but has acquitted A-4. Hence, this
appeal at the instance of the appellants.
3.Advancing his arguments on behalf of the appellants, the learned Senior
Counsel made the following submissions:
In the instant case, the prosecution has not proved either of the charge
as against any one of the accused. The evidence of P.Ws.1 and 2 would clearly
reveal that the first accused and the deceased were living happily. P.W.1 has
candidly admitted that both of them had attended Pongal and Deepavali festivals
in their place. In the instant case, there is nothing to indicate that there was
any dowry demand made by the first accused in general and in particular, there
is no allegation whispered against A-3. Insofar as A-2 is concerned, even though
the prosecution through the evidence of P.Ws.1 and 2 made an attempt as if there
was dowry demand made, there is no material worth available to state that there
was dowry demand made. Originally when the investigation was made by the
Investigating Officer from the respondent police, this part of the dowry demand
was not actually found place. After nearly a period of three years, when the
investigation was taken up by the CB CID, all the improvements in this regard
have been made and the witnesses have also given developed version and thus, it
would not satisfy the legal requirements. Hence, the lower court, in view of the
same, should have acquitted the accused in respect of that part.
4.Aded further the learned Senior counsel that in order to find them
guilty for the offence under Section 304(B) IPC, two circumstances were strongly
relied on by the prosecution. One is the statement alleged to have been made by
A-2 immediately after the occurrence to P.W.3 and the other is the statement
alleged to have been made by P.W.5 when she questioned A-3 about the odour of
kerosene at the time of admission of the deceased in the hospital of P.W.4. The
learned Senior Counsel pointed out that these two circumstances cannot be relied
upon for any purpose. He brought to the notice of the court the circumstance
leading to an irresistible conclusion that those things could not have come into
existence at the earliest. Following the information given to the R.D.O.,
Tuticorin, he conducted inquest. The inquest report is marked as Ex.P.1 and in
his report, he has stated that the death was an accidental one, during which
P.W.14, the uncle of the deceased, and the other uncle were also examined and
they have signed in the inquest report. Even from the evidence of P.Ws.1 and 2,
they were all very well available at the time of inquest. P.W.14 and the other
uncle of the deceased were also present at that time which is also admitted by
them. Thus, it would be clear that there is nothing to suspect the enquiry
conducted by the R.D.O. and when he recorded that it was an accidental one, the
witnesses were available including the close relatives of the deceased. In the
instant case, when the inquest has been conducted at the earliest by the R.D.O.,
he was not examined by the prosecution for the reasons best known to them. The
non examination of the R.D.O., who conducted enquiry and has also recorded that
it was only an accident and that too in the presence of close relatives of the
deceased, would be fatal to the prosecution case.
5.Added further the learned Senior counsel that the prosecution relied on
two circumstances. The first one was the statement alleged to have been made by
the second accused to P.W.3. When P.W.3 questioned A-2 as to how it happened, A-
2 has stated that “what I have said, but she has done like this”. The
prosecution relied on this circumstance as if it is pointing to the commission
of suicide by the deceased. The learned Senior counsel took the court to the
earliest statement recorded from this witness, wherein he has not spoken
anything about this, but this particular version has come into record when CBCID
took up investigation after a period of three years. Thus, it could be seen
that it was a developed one. Hence, it cannot be given any weight. Insofar as
P.W.5 was concerned, she was working as Nurse in the private clinic of P.W.4.
According to her, the deceased was brought to the hospital with burn injuries.
When she removed the cloth of the deceased, kerosene smell came and she
questioned A-3. But, proper explanation was not forthcoming from her. Thus, the
allegation that the non explanation would also point to the commission of
suicide by the deceased has got to be ruled out by the evidence of P.W.3.
According to P.W.3, at the place of occurrence, a 5 litre can with kerosene was
found, from which only a lesser quantity was taken out and thus, it would be
clear that with that lesser quantity of kerosene, she could not be set fire,
since major part of kerosene was available in the can. P.W.13, the Inspector
from CBCID, has clearly spoken the fact that P.W.5 has not spoken anything that
she questioned A-3 and there was an answer and the answer was not
satisfactorily, which were all not recorded by the Investigator at the time of
investigation. Now, it has got to be pointed out that even the investigation by
the CBCID Inspector was done after a period of three years. The said facts were
not mentioned before the earlier Investigating Officer, who took up
investigation. Thus, it would be quite clear that it was the subsequent
developments and even the subsequent developments in that she committed suicide
by using kerosene, cannot be accepted for the reason that in the Can, only a
lesser quantity of kerosene was taken out, which would point to the fact that
she cannot commit suicide.
6.The learned Senior counsel would further add that in the instant case,
the defence came out with a plea that at the time of occurrence, she was
preparing incenses in order to create fragrance from the smoke using the lesser
quantity of kerosene, but she caught fire accidentally and she died out of the
same. Immediately, the accused attempted to quench the fire, in which course,
A-3 also sustained injuries and the deceased was taken to the hospital. Thus, it
would be indicative of the fact that the defence plea was true. The learned
Senior Counsel relied on a decision of the Apex Court reported in 2004 SCC (Crl)
1417 (KALIYAPERUMAL AND ANOTHER VS. STATE OF TAMIL NADU) and would submit that
in a case like this, to attract the penal provisions of Section 304-B IPC, the
prosecution must clearly rule out the possibility that the death could not have
taken place in any other mode. In the instant case, the prosecution case is that
it is a commission of suicide. But, the prosecution failed to rule out the
possibility by any other mode. Under these circumstances, the lower court was
not correct in finding the accused guilty for the charge under Section 304-B
IPC. Hence, both the circumstances relied on by the prosecution are nothing but
subsequent developments in order to suit the case, which were not originally
available for the prosecution at the earliest and thus, the said charge fails.
7.Insofar as the other charge under Section 498-A IPC is concerned, in
respect of A-3, there is no material available and insofar as A-1 is concerned,
there is ample evidence to show that it was he who took his wife to her parental
home and have attended all the festivals and ceremonies and he was an Engineer
employed at Vellore, having sufficient income and he married the deceased only
for her beauty and therefore, there was no reason for him to make a demand and
hence, the case of prosecution insofar as the first accused is concerned, the
charge under Section 498-A IPC also falls to ground. Insofar as A-2 is
concerned, the materials available were not sufficient to hold that she could be
found guilty under Section 498-A IPC and under these circumstances, the
prosecution has not proved the case and hence, they are entitled for acquittal
in the hands of this Court.
8.Heard the learned Additional Public Prosecutor on the above contentions.
9.The Court has paid its anxious consideration on the submissions made.
The case of prosecution is that one Chitradevi met with an unnatural death is
proved by the prosecution by sufficient evidence. Following the inquest made by
the R.D.O., Tuticorin, who was not examined, the dead body was subjected to
post-mortem by P.W.10, the Doctor and she has categorically opined that she died
out of burn injuries and thus, there is sufficient evidence to record a finding
that the deceased Chitradevi died out of burn injuries sustained by her at the
time of incident, in question.
10.The appellants were found guilty of the charges under Sections 498-A
and 304-B IPC. In order to substantiate the charges, the prosecution rested its
case exclusively on circumstances, since it had no direct evidence to offer.
The main circumstance, according to the prosecution, in respect of charge under
Section 304-B IPC, was the evidence adduced through P.Ws.3 and 5, who spoke
about the circumstances. According to the evidence of P.W.3, on hearing the
distressing cry, he came and questioned A-2, for which A-2 replied that “what I
have said, she has done like this”. From the evidence, it could be well
inferred that it was the case of commission of suicide. The defence plea was
that it was not the commission of suicide, but it was the case where she died
out of accident. Before going to decide the question as to whether it was the
commission of suicide as put forth by the prosecution or it was an accident as
put forth by the defence, it would be quite apt and appropriate to look into the
legal positions in this regard. The Apex Court had an occasion to consider the
situation like this in a case reported in 2004 SCC (Crl) 1417, wherein their
Lordships of the Supreme Court had clearly pointed out the ingredients to
attract the provisions of Section 304-B IPC, which reads as follows:
“(i)The death of a woman should be caused by burns or bodily injury or
otherwise than under a normal circumstance.
(ii)Such a death should have occurred within seven years of her marriage.
(iii)She must have been subjected to cruelty or harassment by her husband
or any relative of her husband.
(iv)Such cruelty or harassment should be for or in connection with demand
for dowry.
(v)Such cruelty or harassment is shown to have been meted out to the woman
soon before her death.”
A reading of the above decision would clearly show that the prosecution should
rule out the possibility that it could not have taken place except as one put
forth by the prosecution, i.e. as one suicide. In the instant case, by applying
the legal position as stated above and rendered by the Apex Court, the Court is
of the considered opinion that the prosecution has not proved the charge against
the accused in respect of Section 304-B IPC.
11.The first and foremost circumstance in the instant case, which stands
against the prosecution is the inquest report given by the R.D.O. at the
earliest, which was marked as Ex.P.1. On requisition, the RDO, Tuticorin made
an inquest on the dead body of the deceased in the presence of the witnesses now
examined before the Court, namely P.Ws.1 and 2 and also P.W.14, who is none else
than the uncle of the deceased and the another uncle, who is the brother of
P.W.14. He has categorically found and recorded that it was the case of
accident and these two witnesses, P.W.14 and his brother have also signed in the
said document and thus, it would be quite clear that nothing can be stated
against the R.D.O., who conducted inquest. In the instant case, he has not been
examined. The non examination of the R.D.O., who conducted inquest, is fatal to
the prosecution case. The prosecution has not come with any explanation. While
the matter stood thus, as per the order of the Deputy Inspector General of
Police, the case was taken up by the CBCID after a period of three years and the
witnesses have been examined and the improved versions have also been noticed by
the Court.
12.The two witnesses relied on by the prosecution is P.Ws.3 and 5. The
evidence of P.W.3 that when he immediately asked A-2, A-2 gave such an answer
and therefore, it could be inferred that the deceased committed suicide cannot
now be accepted for the simple reason that when he was examined by the
Investigator, he has not stated anything like this and when he was examined
after a period of three years by P.W.13, he has given such an improved version
and thus, it would be quite clear that in order to suit the situation, it has
been added. Apart from that the evidence of P.W.5 relied on by the prosecution
was accepted by the lower court. According to P.W.5, who was a Nurse attached
to the hospital of P.W.4, when she removed the cloth of the deceased, the odour
of kerosene came and she questioned A-3 and A-3 gave some answer, which was not
satisfactory. According to P.W.5, when the statement was made, the third accused
and P.W.4, the Doctor, was also present. But, P.W.4 has not spoken anything to
the Investigator, nor had he deposed anything before the Court. Thus, the
evidence of P.W.4 would make the evidence of P.W.5 suspicious or doubtful. Now,
the other circumstance relied on by the prosecution is the evidence of P.W.3.
According to P.W.3, a Can was found with kerosene and only a lesser quantity of
kerosene was taken out. According to the defence plea, at the time of the
incident, the deceased was preparing incenses in order to create fragrance from
the smoke, for which she used kerosene, with which at that time, she caught fire
accidentally. From the evidence of P.W.3, it would be clear that the Can
contains major part of kerosene, but only a lesser quantity of kerosene was
taken out, which would be indicative of the fact that the said kerosene cannot
be used. Apart from that, this version of P.W.5, what was now given, was only a
subsequent development given before the CBCID Inspector and thus, this was not
the earliest version, but improvement was made. Thus, these two improved
versions were placed before the lower court and the lower court was also
preparing to accept the same. Now, at this juncture, it is to be pointed out
that this improved version before the CBCID Inspector has taken place after a
period of 2 or 3 years. Thus, these circumstances, in the opinion of the Court,
cannot be relied on to attract the provisions of Section 304-B IPC. Hence, the
Court is of the considered opinion that these two circumstances are not
sufficient to find the appellants guilty under Section 304-B IPC and hence, they
are entitled for acquittal of the said charge.
13.Insofar as the other charge of Section 498-A IPC is concerned, the
Court is of the considered opinion that no materials are placed to bring home
the guilt of A-3 and thus, on scrutiny of the available materials, the Court has
to necessarily hold that A-3 has got to be acquitted. Insofar as A-1 and A-2 are
concerned, the Court is unable to agree with the contention put forth by the
learned Senior Counsel for the appellants. The Court has to necessarily agree
with the prosecution case insofar as A-1 and A-2, who are the husband and
mother-in-law of the deceased respectively. The prosecution has adduced the
evidence of P.Ws.1 and 2. After the marriage was over, the Sreedhana articles
were taken by P.W.2 to Vellore, where the first accused and the deceased were
residing. Even after that, A-2 made a demand for vessels and jewels etc. It is
an admitted position that during festival occasions, both A-1 and the deceased
came to the place of P.W.2. But, in all the occasions, the deceased has
informed P.W.2 that there was a demand of dowry, namely bureau, gold jewels,
T.V., etc. From the evidence, it could be seen that TV was demanded by A-1. The
learned Senior Counsel took the court to a different part of evidence given by
P.Ws.1 and 2 that P.W.2 was in financial strain and therefore, he could not do.
Under these circumstances, there cannot be any demand by A-1. Apart from that
A-1 was an Engineer and he is sufficiently earning salary. This part of the
evidence cannot be the answer for the demand made by A-1. In the instant case,
there are sufficient materials available. From the evidence of P.Ws.1 and 2, it
is clear that there was a demand made strictly by A-2, who is the mother-in-law
and A-1 also had an occasion to make a demand of dowry. Under these
circumstances, the legal requirements under Section 498-A IPC is available
insofar as A-1 and A-2 are concerned. It is a case, where the lower court has
given a punishment of two years RI along with a fine for the said charge and it
has got to be sustained. In respect of A-3, it has got to be set aside.
14.Accordingly, the conviction and sentence imposed by the lower court on
A-1 and A-2 for the offence under Section 498-A IPC are sustained. Insofar as
A-3 is concerned, the conviction and sentence imposed by the lower court under
Section 498-A IPC are set aside and A-3 is acquitted of the said charge. The
judgment of conviction and sentence imposed by the lower court on the appellants
for the offence under Section 304-B IPC are set aside and the appellants are
acquitted of the said charge. It is reported that A-1 and A-2 are on bail. The
Sessions Judge is directed to secure their presence and commit them to prison to
undergo the remaining period of sentence. The bail bond, if any executed by A-
3, shall stand terminated. The fine amounts, if any paid by A-3, shall be
ordered to be refunded to her.
15.Accordingly, the criminal appeal is partly allowed.
Index : Yes
Internet : Yes
To
1.Additional Sessions Judge-cum-
Chief Judicial Magistrate,
Tuticorin.
2.The Inspector of Police,
Meignanapuram Police Station.
3.The Deputy Superintendent of Police,
Tirunelveli Crime Branch,
Tirunelveli.
4.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.