{"id":177555,"date":"2007-04-27T00:00:00","date_gmt":"2007-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/selvaraj-vs-state-on-27-april-2007"},"modified":"2014-12-01T14:00:34","modified_gmt":"2014-12-01T08:30:34","slug":"selvaraj-vs-state-on-27-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/selvaraj-vs-state-on-27-april-2007","title":{"rendered":"Selvaraj vs State on 27 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Selvaraj vs State on 27 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n \\          IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\n                     DATED : 27\/04\/2007\n\n                            CORAM\n\n           THE HONOURABLE MR.JUSTICE S.TAMILVANAN\n\n               CRIMINAL APPEAL No.723 of 2001\n                              \n\n1. Selvaraj\n\n2.Jayalakshmi\t\t\t\t       ... Appellants\n\n\n      Vs\n\n\nState \nrep by The Assistant Commissioner of Police\nLaw & Order\nKilpauk Range\nChennai.                                      ... Respondent\n\n\n\n       Criminal   Appeal  filed  against  the  Judgment   of\nconviction, dated 26.07.2001, made in S.C.No.269 of 1999  on\nthe file of the II Additional Sessions Judge, Chennai.\n\n\n\n          For appellants  : Mr.S.Shanmugavelayutham, Senior Counsel for Mr.R.Anand\n\n          For respondent  : Mr.Hasan Mohamed Jinnah, Govt. Advocate (crl. side)\n\n\n\n                       J U D G M E N T\n<\/pre>\n
       This  Criminal  Appeal  has  been  preferred  by  the<\/p>\n
appellants \/ accused challenging the judgment of conviction,<\/p>\n
dated 26.07.2001, made in S.C.No.269 of 1999 on the file  of<\/p>\n
the  II  Additional  Sessions Judge,  Chennai,  whereby  the<\/p>\n
appellants  1  and  2  were  found  guilty  of  the  offence<\/p>\n
punishable  under  Sections 498A IPC and sentenced  each  of<\/p>\n
them  to undergo one year RI and to pay a fine of Rs.5,000\/-<\/p>\n
each  with default sentence. Further, the first appellant  \/<\/p>\n
A1 was found guilty under Section 304 B IPC and sentenced to<\/p>\n
undergo  RI  for  10 years and to pay a fine of  Rs.10,000\/-<\/p>\n
with  default  sentence. The sentence imposed on  the  first<\/p>\n
appellant was ordered to run concurrently.<\/p>\n
      2.  The  brief facts of the prosecution  case  are  as<\/p>\n
follows :\n<\/p>\n
                 The  deceased Sowmya was the  wife  of  the<\/p>\n
first appellant \/ A1. The first appellant \/ A1 is the son of<\/p>\n
the  second  appellant  \/ A2. The first  appellant  and  the<\/p>\n
deceased Sowmya were leading their matrimonial life at No.2,<\/p>\n
Karukathamman Koil Street, Chetpet, Chennai, and a child was<\/p>\n
also  born  to  them.  As  per  the  prosecution  case,  the<\/p>\n
appellants were causing cruelty on the deceased continuously<\/p>\n
by  demanding dowry. As per the complaint, Ex.P.1, the first<\/p>\n
appellant  \/ A1 had demanded Rs.10,000\/- and caused  cruelty<\/p>\n
even while she was in family way. Accordingly, the amount of<\/p>\n
Rs.10,000\/- was given to the first appellant by the  parents<\/p>\n
of  Sowmya, in addition to the jewels and amount Rs.10,000\/-<\/p>\n
already  given during the marriage of the deceased  and  the<\/p>\n
first  appellant.  According to P.W.1,  the  mother  of  the<\/p>\n
deceased,  even  after  the birth of the  child,  the  first<\/p>\n
appellant  \/ A1 was causing cruelty by beating the deceased,<\/p>\n
hence,  she  was in the house of her parents  for  about  11<\/p>\n
months, even after the birth of the child. Subsequently, the<\/p>\n
first appellant, his younger brothers and others came to the<\/p>\n
house  of P.W.1 and gave assurance that the deceased  Sowmya<\/p>\n
would  not  be  subject to cruelty. On the assurance,  P.W.1<\/p>\n
sent  her  daughter, the deceased with the  child,  but  the<\/p>\n
first  appellant  \/  A1 was not satisfied  with  the  jewels<\/p>\n
presented   by  the  parents  of  Sowmya  for   the   child.<\/p>\n
Subsequently, P.W.1 and her brothers went to  the  house  of<\/p>\n
the  appellants \/ accused and due to the ill  treatment  and<\/p>\n
cruelty  met  out  by  the deceased Sowmya  there,  she  was<\/p>\n
brought  to  the  house  of her parents  and  again  at  the<\/p>\n
instance of the appellants, she could see the face of f  the<\/p>\n
elders, P.W.1 sent the deceased with the child to the  house<\/p>\n
of  the appellants. Subsequently, when she went to the house<\/p>\n
of  the  appellants, she could see the face of the  deceased<\/p>\n
found  swollen due to beating, but Sowmya did  not  say  the<\/p>\n
reason,  as  she was scared of the appellants. On 05.10.1998<\/p>\n
at  about 7 p.m, brother of the first appellant, Kumar  came<\/p>\n
to  the house of P.W.1 in a van and informed that Sowmya was<\/p>\n
dead  due  to  cholera and the dead body  was  kept  at  the<\/p>\n
Kilpauk Government Hospital. She went to Hospital and  found<\/p>\n
the  dead  body of Sowmya with ligature mark  on  the  neck.<\/p>\n
Then,  she  gave the complaint, Ex.P.1 before the respondent<\/p>\n
police  against  the appellant \/ accused 1 and  2  that  her<\/p>\n
daughter,  the  deceased had been subjected to  cruelty  and<\/p>\n
done to death.\n<\/p>\n<\/p>\n
      3.  It is seen that P.W.2, Parasuraman, the father  of<\/p>\n
the  deceased,  P.W.3,  brother of the  deceased  have  also<\/p>\n
deposed  similar evidence on the same line of  the  evidence<\/p>\n
adduced   by  P.W.1.  According  to  P.W.4,  an  independent<\/p>\n
witness, she found the deceased hanging at the house of  the<\/p>\n
appellants  \/  accused,  at about 3  p.m,  on  the  date  of<\/p>\n
occurrence, but subsequently, she turned hostile. Hence, she<\/p>\n
was  cross-examined by the Government Advocate. As  per  the<\/p>\n
evidence  of  P.W.5, the doctor who conducted postmortem  on<\/p>\n
the dead body of the deceased Sowmya, the following injuries<\/p>\n
were found :\n<\/p>\n<\/p>\n
         “An  incomplete,  oblique,  dark  brown,<\/p>\n
         ligature abrasion on the front and sides<\/p>\n
         of  the neck. 29 x 2 cms below the level<\/p>\n
         of   thyroid  cartilage.  The   ligature<\/p>\n
         abrasion 9 cms below the chin and 8  cms<\/p>\n
         above  the suprasternal on front of  the<\/p>\n
         neck. The ligature abrasion is 6 cms and<\/p>\n
         4  cms  below the right and left mastoid<\/p>\n
         process on the sides of the neck. On the<\/p>\n
         base  of the neck, the ligature abrasion<\/p>\n
         merges with the hair line. On dissection<\/p>\n
         the  base of ligature abrasion  is  pale<\/p>\n
         and  dry. The subcutaneous soft  tissues<\/p>\n
         of the neck are pale. The hyoid bone and<\/p>\n
         other laryngeal cartilages are intact.”<\/p>\n<\/blockquote>\n
The Doctor has opined that the deceased would appear to have<\/p>\n
died of asphyxia due to hanging. It is seen that the medical<\/p>\n
evidence  supports the prosecution case that  the  death  of<\/p>\n
Sowmya occurred otherwise than under normal circumstances.<\/p>\n
      4.  Mr.S.Shanmughavelayutham, learned  Senior  Counsel<\/p>\n
appearing for the appellant \/ accused would contend that the<\/p>\n
prosecution  has  not  established  the  guilt  against  the<\/p>\n
accused beyond reasonable doubt. According to him, P.Ws.1 to<\/p>\n
3  are  the parents and the brother of the deceased  and  as<\/p>\n
such  they are interested witnesses, hence, it could not  be<\/p>\n
construed  that the guilt against the first appellant  under<\/p>\n
Sections 498A and 304 B IPC and the guilt against the second<\/p>\n
appellant under Section 498A have been proved.<\/p>\n
       5.  Per  contra,  Mr.Hasan  Mohamed  Jinnah,  learned<\/p>\n
Government  Advocate  (crl.side)  submits  that   there   is<\/p>\n
sufficient   evidence  to  record  that  there   was   dowry<\/p>\n
harassment  and also the cruelty caused on the  deceased  by<\/p>\n
demanding dowry and therefore, as per Section 113 of  Indian<\/p>\n
Evidence  Act,  the  trial  court  has  rightly  drawn   the<\/p>\n
presumption  that the deceased died due to dowry  death  and<\/p>\n
therefore,  there is no error in the judgment of  the  trial<\/p>\n
court to be interfered with.\n<\/p>\n<\/p>\n
       6.   The  Hon’ble  Supreme  Court  in  the  decision,<\/p>\n
T.Aruntperjunjothi vs. State, reported in (2006) 2 SCC (Cri)<\/p>\n
528,  has  held  the  following  essential  ingredients  for<\/p>\n
convicting  the accused under Section 304B IPC. As  per  the<\/p>\n
ruling,  (i) death of a woman must have been caused  by  any<\/p>\n
burns  or  bodily  injury  or otherwise  than  under  normal<\/p>\n
circumstances;  (ii)  such death must have  occurred  within<\/p>\n
seven years of marriage; (iii) soon before her death she was<\/p>\n
subjected  to  cruelty  or  harassment  by  her  husband  or<\/p>\n
relative  of  her husband; (iv) such cruelty  or  harassment<\/p>\n
must be in connection with the demand of dowry; and (v) such<\/p>\n
cruelty  is  shown to have been meted out to the woman  soon<\/p>\n
before her death.\n<\/p>\n<\/p>\n
      7.  In the instant case, it is not in dispute that the<\/p>\n
deceased Sowmya died within 7 years after her marriage, with<\/p>\n
the  first  appellant \/ A1. The death  was  also  not  under<\/p>\n
normal  circumstance.  The  younger  brother  of  the  first<\/p>\n
appellant  and  the  son of the second  appellant,  who  was<\/p>\n
examined as P.W.9, Gunasekaran has deposed that on the  date<\/p>\n
of occurrence between 3 p.m and 4.30 p.m, on information, he<\/p>\n
went  and  saw  the dead body of Sowmya was hanging  in  the<\/p>\n
house  of the appellants and the saree knot used for hanging<\/p>\n
was released by himself and others, but on the advice of the<\/p>\n
others, the death was informed to the police only at 9  p.m,<\/p>\n
on  the  date  of occurrence. Another brother of  the  first<\/p>\n
appellant, Kumarasamy, who was examined as D.W.1 has deposed<\/p>\n
that  on the date of occurrence, he proceeded to the village<\/p>\n
of  P.W.1 and P.W.2 by taxi and informed about the death  of<\/p>\n
Sowmya  and the taxi bill has been marked as Ex.D.3. He  has<\/p>\n
admitted that the first wife of the first appellant died due<\/p>\n
to blast of a stove. He has admitted that the parents of the<\/p>\n
deceased Sowmya had given a gift of 5 sovereign gold to  the<\/p>\n
first  appellant  during marriage, but  denied  the  alleged<\/p>\n
dowry amount of Rs.10,000\/- paid by them. He has stated that<\/p>\n
Sowmya was very poor and her parents were living in hut  and<\/p>\n
she  was  married by A1, with an intention of looking  after<\/p>\n
the  daughter born through the first wife of the  appellant.<\/p>\n
Had  the parents of the deceased were very poor, they  could<\/p>\n
not have offered 5 sovereigns of gold to the first appellant<\/p>\n
on the date of marriage as admitted by him.\n<\/p>\n<\/p>\n
      8.  According to P.W.9, the deceased was found hanging<\/p>\n
in  the house of the appellants between 3 p.m and 4.30  p.m,<\/p>\n
but  there is no reason, why there was a delay in intimating<\/p>\n
the  occurrence  to the police. P.W.1 has  deposed  that  on<\/p>\n
05.10.1998, the brother of the first appellant came  to  her<\/p>\n
house  in a car and informed that Sowmya died due to cholera<\/p>\n
and  the  dead body was kept at Kilpauk Government Hospital.<\/p>\n
The  said incorrect information given to the parents of  the<\/p>\n
deceased  by  D.W.1 about the cause of death  has  not  been<\/p>\n
rebetted by the appellants, while they were questioned under<\/p>\n
Section 313 Cr.P.C.\n<\/p>\n<\/p>\n
      9.  In  the decision Trimukh Maroti Kirkan vs. Stateof<\/p>\n
Maharashtra,<\/a>  reported  in  2007 Crl.L.J.  20,  the  Hon’ble<\/p>\n
Supreme  Court has held thus “The demand for dowry or  money<\/p>\n
from  the  parents  of  the bride  has  shown  a  phenomenal<\/p>\n
increase  in  last  few years. Cases are  frequently  coming<\/p>\n
before the Courts, where the husband or in-laws have gone to<\/p>\n
the  extent of killing the bride if the demand is  not  met.<\/p>\n
These  crimes  are  generally committed in complete  secrecy<\/p>\n
inside  the  house  and it becomes very  difficult  for  the<\/p>\n
prosecution to lead evidence. No member of the family,  even<\/p>\n
if  he  is  a  witness of the crime, would come  forward  to<\/p>\n
depose against another family member. The neighbours,  whose<\/p>\n
evidence  may be of some assistance, are generally reluctant<\/p>\n
to  depose  in Court as they want to keep aloof and  do  not<\/p>\n
want  to  antagonize a neighbourhood family. The parents  or<\/p>\n
other  family members of the bride being away from the scene<\/p>\n
of  commission of crime are not in a position to give direct<\/p>\n
evidence  which  may  inculpate  the  real  accused   except<\/p>\n
regarding the demand of money or dowry and harassment caused<\/p>\n
to  the  bride. But, it does not mean that a crime committed<\/p>\n
in secrecy or inside the house should go unpunished.”<\/p>\n
      10.  As  found by the Hon’ble Apex Court, it  is  very<\/p>\n
difficult for the prosecution to lead evidence, as the crime<\/p>\n
relating  to dowry death are generally committed in complete<\/p>\n
secrecy  inside the house and no member of the family,  even<\/p>\n
if  he is witness to the crime, would come forward to depose<\/p>\n
evidence against other family member.\n<\/p>\n<\/p>\n
      11. Here in the instant case, Sowmya, the wife of  the<\/p>\n
first appellant had died of hanging and hence, it is  not  a<\/p>\n
death  under normal circumstance. The death had taken  place<\/p>\n
at  the  residence of the appellants, admittedly during  day<\/p>\n
time between 3 p.m, and 4.30 p.m. In the 313 questioning the<\/p>\n
appellants have simply denied the incriminating evidence  of<\/p>\n
the  prosecution against them as false. They have  not  even<\/p>\n
stated as to what was the reason for Sowmya, the wife of the<\/p>\n
first  appellant for committing suicide by  hanging  at  his<\/p>\n
residence between 3 p.m, and 4.30 p.m.<\/p>\n
      12.  Apart from P.W.1 to P.W.3, P.W.8 and P.W.12  have<\/p>\n
also deposed that there was dowry harassment. The appellants<\/p>\n
have  not denied the earlier panchayat and she was taken  to<\/p>\n
appellant.s  house  only 9 months after  the  birth  of  the<\/p>\n
child.   Merely, on the ground that the witnesses are  close<\/p>\n
relatives,  their  evidence need not be discarded,  but  the<\/p>\n
Court  has to scrutinize their evidence with due care.  Here<\/p>\n
in  this case, the independent witness, P.W.4 is a tenant in<\/p>\n
the  house  of the appellants and P.W.7, one of the  mahazar<\/p>\n
witnesses  turned hostile. The trial court, considering  the<\/p>\n
evidence  of P.W.1 to P.W.3 and other witnesses,  has  found<\/p>\n
that there was a dowry harassment.\n<\/p>\n<\/p>\n
     13. As per the decision, Sham lal vs. State of Haryana,<\/p>\n
reported  in 1997 SCC (Cri) 759, to draw the presumption  of<\/p>\n
dowry  death,  under Section 113 B of Evidence  Act,  it  is<\/p>\n
imperative to prove that soon before her death, the wife was<\/p>\n
subjected  to  cruelty and harassment for or  in  connection<\/p>\n
with the demand for dowry.\n<\/p>\n<\/p>\n
      14. As per the evidence of P.W.1, when she went to the<\/p>\n
house  of  the  appellants, few days prior to  the  date  of<\/p>\n
death, she found her daughter.s face swelling due to beating<\/p>\n
and the deceased could not say the reason, as she was scared<\/p>\n
of   the  first  appellant.  The  evidence  of  P.W.8   also<\/p>\n
corroborates the same. On the facts and circumstances, I  am<\/p>\n
of the considered view that the court can draw the inference<\/p>\n
under  Section  113 B of Indian Evidence Act, since  offence<\/p>\n
under Section 304 B IPC has been made out.\n<\/p>\n<\/p>\n
      15.  Section  113 B of Indian Evidence  Act  reads  as<\/p>\n
follows :\n<\/p>\n<\/p>\n
      113-B  Presumption  as to dowry death  :  –  When  the<\/p>\n
question is whether the person has caused the dowry death of<\/p>\n
a  woman  and  it is shown that soon before her  death  such<\/p>\n
woman  had  been  subjected by such person  to  cruelty   or<\/p>\n
harassment for, or in connection with, any demand for dowry,<\/p>\n
the  Court  shall presume that such person  had  caused  the<\/p>\n
dowry death.\n<\/p>\n<\/p>\n
      16.  Therefore, contrary to presumption under  Section<\/p>\n
113 B of Evidence Act, has to be established by the accused.<\/p>\n
In the normal circumstances, there can be no possibility for<\/p>\n
the  deceased to commit suicide, leaving her 1  +  year  old<\/p>\n
baby. There is no satisfactory explanation or defence as  to<\/p>\n
why  the deceased committed suicide and that too during  day<\/p>\n
time at the residence of the appellants. The silence of  the<\/p>\n
first appellant \/ A1 would draw the inference that he was  a<\/p>\n
cause  of  her death. Therefore, I could find  no  error  or<\/p>\n
infirmity in the view taken by the court below, so  fare  as<\/p>\n
the  first  appellant \/ A1 is concerned  in  convicting  him<\/p>\n
under Sections 498A and 304 B IPC.\n<\/p>\n<\/p>\n
      17.  As far as the second appellant \/ A2 is concerned,<\/p>\n
there is no direct evidence available on record against  her<\/p>\n
with  regard  to demand of dowry and she was aged  above  60<\/p>\n
years  on  the  date  of occurrence.  Hence,  I  am  of  the<\/p>\n
considered view that the guilt against the second  appellant<\/p>\n
\/  A2,  under  Section 498A IPC has not been  proved  beyond<\/p>\n
reasonable doubt, and to meet the ends of justice, I find it<\/p>\n
reasonable to give benefit of doubt to the second  appellant<\/p>\n
\/ A2 and found her not guilty under Section 498A IPC.<\/p>\n
      18.  In  the  result, confirming  the  conviction  and<\/p>\n
sentence imposed by the court below, the appeal so far as it<\/p>\n
relates to the first appellant \/ A1 is dismissed. So far  as<\/p>\n
it  relates  to the second appellant \/ A2 is concerned,  the<\/p>\n
appeal  is allowed and the conviction and sentence,  imposed<\/p>\n
on her by the court below is set aside.\n<\/p>\n<\/p>\n
      19.  As the first appellant \/ A1 is on bail, the trial<\/p>\n
court  is  directed to secure the first appellant  \/  A1  to<\/p>\n
under  go the remaining period of sentence. The fine amount,<\/p>\n
if  any  paid by the second appellant \/ A2 shall be refunded<\/p>\n
to her forthwith and the bail bond, if any executed shall be<\/p>\n
discharged.\n<\/p>\n
tsvn<\/p>\n
To<\/p>\n
1. \tThe II Additional Sessions Judge
\n   \tChennai.\n<\/p>\n
2. \tThe Assistant Commissioner of Police
\n     \tLaw & Order
\n\tKilpauk Range
\n\tChennai.\n<\/p>\n
3. \tThe Public Prosecutor
\n    \tHigh Court of Madras
\n\tChennai.\n<\/p>\n
[PRV\/10439]<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Selvaraj vs State on 27 April, 2007 \\ 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-177555","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSelvaraj vs State on 27 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/selvaraj-vs-state-on-27-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Selvaraj vs State on 27 April, 2007 - 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