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498A dowry case sentence confirmed. Jai for husband acutal for motherin law Full order of. THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY Crl.R.C.No.902 of 2014 and M.P.No.1 of 2014

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

DATED :  22.12.2021

 

CORAM :

 

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.R.C.No.902 of 2014 and M.P.No.1 of 2014

  1. A.Raju
    2. Malliga
    3. Radha
    4. Mahendran                                                      …    Petitioners

                                                            Versus

 

The State rep. by

The Inspector of Police,

Sirkazhi Police Station                                                              …   Respondent

 

(Crime No.647 of 2012)

 

          Criminal Revision Case filed under Section 397 (1) r/w. 401 of the Criminal Procedure Code against the judgment in Crl.A. No.1/2013 dated 03.06.2014 on the file of the learned Sessions Judge, Mahila Fast Track Court, Nagapattinam, confirming the judgment passed in S.C.No.141/2011 dated 03.06.2014 by the learned Assistant Sessions Judge (Chief Judicial Magistrate), Nagapattinam.

 

For Petitioners   :  Mr.Swamy Subramanian

 

For Respondent  :  Mr.L.Baskaran,

Government Advocate (Crl.side)

 

 

 

ORDER

The petitioners/accused 1 to 4 have filed this Criminal Revision Case in Crl.R.C.No.902/2014 aggrieved by the judgment of the learned Assistant Sessions Judge, Nagapattianm, in S.C.No.141/2011 dated 03.01.2013 whereby they were convicted for the offences under Sections 498-A and 304 (B) of  IPC and imposed a sentence of 1 year rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for a period of three months for the offence under Section 498-A IPC and 7 years rigorous imprisonment for the offence under Section 304(B) IPC and the judgment of the learned Sessions Judge, Mahila Fast Track Court, Nagapattinam, dated 03.06.2014 in Crl.A.No.1/2013 whereby the conviction and sentence imposed by the trial court was confirmed.

2. The case of the prosecution is as follows:
(a)  On 11.08.2007, P.W.1 Rajendran went to Seerkazhi Police Station and lodged a complaint stating that his sister, namely, Viji was married to the 1st accused A.Raju and the marriage took place on 27.06.2007 and her husband and the in-laws have been harassing her to get a bike for the 1st accused.  Under these circumstances, on 11.08.2007, he received a phone call from her father-in-law that she was not well and therefore, taken for treatment to Rajarajan Hospital and when he went there, his sister was not there and therefore, when he went to the sister’s house, he found that his sister was lying dead on the cot with ligature marks around her neck and when he started crying, her in-laws who were present at the house fled away and therefore, he gave a complaint.  P.W.13 Mr.Rajendran, Sub-Inspector of Police, who was on duty, registered a case in Cr.No.647/2007 under Section 174 of Cr.P.C. and then, after the receipt of the Revenue Divisional Officer Enquiry Report on 05.02.2008, an Alteration Report was made by P.W.14 Mr.Murugavel, the then Inspector of Police, by altering it as one under Section 306 of IPC.  On 01.05.2008, he arrested the accused 1 and 2 and submitted the file for further investigation to the Deputy Superintendent of Police, Seerkazhi Sub-division.  Thereafter, P.W.17 Mr.Malaisamy, the Deputy Superintendent of Police took up the case for investigation, altering the case by Alteration Report dated 03.04.2008 received by the court on 26.04.2008 as to one under Sections 498-A, 304(B) of IPC and Section 4 of the Dowry Prohibition Act and thereafter, proceeded to complete the investigation and laid a final report on 28.10.2008 proposing all the four accused in this case guilty of the offences under Sections 498-A, 304(B) of IPC and Section 4 of the Dowry Prohibition Act.

(b) The case was taken on file in PRC.No.34/2009 by the learned Judicial Magistrate, Seerkazhi and after furnishing copies, committed the case as per Section 209 of Cr.P.C. to the learned Sessions Judge, Nagapattinam who thereupon made over the case to the learned Assistant Sessions Judge, Nagapattinam and the case was taken on file as S.C.No.141/2011.  Thereafter, the trial court framed two charges against the accused under Sections 498-A and 304 (B) of IPC on 30.01.2012. Upon being questioned, the accused denied the Charges and stood for trial.
(c)  Subsequently, the prosecution examined one Rajendran, brother of the deceased as P.W.1 who spoke about the fact of giving his sister in marriage, giving of seedhana and that his sister called him to inform that she was harassed and beaten up demanding motor bike and that on 11.08.2007 he was informed that his sister was unwell and admitted in Rajarajan Hospital and when he went there, he found that his sister was not there and upon coming home, he saw the dead body of his sister.  One Mrs.Panchavarnam, sister of the deceased was examined as P.W.2 who also deposed that the in-laws of her sister had asked her to give all her jewels  to show them to the goldsmith who was residing opposite to their house to check whether they are all original gold or imitations.  Since her sister revolted for that, she was beaten up by them and they have also harassed her for not bringing a motor bike to the 1st accused.  One Mrs.Kasthuri, mother of the deceased was also examined as P.W.3, who also spoke about the factum of giving her daughter in marriage and that they were living happily, but thereafter demanding bike her daughter was harassed and that her daughter committed suicide.  One Sekar, who was the owner of the Utensils Shop was examined as P.W.4.  He deposed that in connection with the marriage, utensils were purchased from his shop.   The prosecution thereafter examined one Jagannathan as P.W.5 who was also residing in the village of the deceased victim and who accompanied P.W.1 and others to the house of the accused and saw the victim dead.  One Chellaiyan was examined as P.W.6 who turned hostile and was cross-examined by the prosecution.  Similarly, one Kandasamy, who was examined as P.W.7, one Sammandam, who was examined as P.W.8, one Markandan, who was examined as P.W.9 and one Mathivanan who was examined as P.W.10 had all turned hostile.  Similarly, one Arulprasath who was examined as P.W.11 also turned hostile.  These persons were examined for the purposes as hearsay witnesses about the incident or for signing in the Observation Mahazar and Confession statement.

(d) The prosecution, thereafter examined the police personnel Nagarajan as P.W.12 who brought the body of the deceased to Seerkazhi Government Hospital for postmortem and handed over the body to the relatives.  The Sub-Inspector of Police who registered the F.I.R., namely, N.Rajendran was examined as P.W.13.  The Inspector of Police one K.Murugavel, who initially took up the investigation and altered the case as one under Section 306 of IPC and arrested the accused 1 and 2 on 05.02.2008 was examined as P.W.14 and he, thereafter handed over the investigation to the Deputy Superintendent of Police. The Postmortem Doctor who conducted the postmortem on the body of the victim was examined as P.W.15 and issued the Postmortem Certificate Ex.P.3.  The Postmortem Certificate is extracted hereunder:

”Appearances found at the postmortem:  A well nourished female body lies on back, eyes closed.   Bleeding from mouth and left nose left ear seen.  A rope mark from left ear to right ear over front neck seen.  Tongue protruding out.

External Injuries:
1. Abrasion over both breast 5 x 3 c.m. and ant abdominal wall.

  1. Abrasion left thigh measuring 18 x 2 c.m.
  2. Abrasion left knee and left leg.
    4. Abrasion over left hand and left elbow.
    5. Contusion and impressions of rope over neck.
    Internal Exam : Thorax ribcage intact.
    Lungs and heart – pale
    Abdomen : Stomach contains 50 ml. of brownish     liquid.
    Liver, Kidney, Spleen congested   intestines-pale and distended
    Neck : Hyoid bone intact; Thyroid cartilage –              intact
    Skull : No fracture.  Brain matter – intact.
    PM concluded at 4.30 p.m. on 12.08.2007.
    Viscera sent for chemical analysis.
    Hyoid and thyroid cartilage sent for pathological exam.
    Chemical Analysis : No poison detected.
    Final Opinion : The deceased would appear to have died of

asphyxia probably due to hanging 36-48 hrs. prior to autopsy.”

The Revenue Divisional Officer who conducted the enquiry submitted his report was examined as P.W.16.  Mr.Malaisamy, the Deputy Superintendent of Police, who was the Investigating Officer conducted the investigation and filed a final report was examined as P.W.17.  Thereafter, once again, the prosecution sought to examine one Vasudevan, Palani and Suresh as P.Ws.18 to 20 as hearsay witnesses about the incident who had all turned hostile.

 

  1. The prosecution marked the complaint lodged by the P.W.1 as Ex.P.1, the First Information Report as Ex.P.2, the Postmortem Report as Ex.P.3, the Revenue Divisional Officer’s Report as Ex.P.4, the Observation Mahazar as Ex.P.5, the Rough Sketch as Ex.P.6, the Alteration Report dated 03.04.2008 altering the case as one under Sections 498-A, 304(B) of IPC and Section 4 of the Dowry Prohibition Act as Ex.P.7 and the signature of the P.W.20 in the confession statement given by the 1st accused as Ex.P.8.

 

  1. Upon being questioned about the material evidences on record and the incriminating circumstances under Section 313 of the Cr.P.C., all the accused denied the same as false. Thereafter, there was no evidence let in on behalf of the defence.

 

  1. Under these circumstances, the Trial Court, proceeded to hear the arguments of the learned Assistant Public Prosecutor on behalf of the prosecution and the learned counsel for the accused and by the judgment dated 03.01.2013 held that, from the cross-examination of P.W.16 and the evidence of P.Ws.1 to 3, the deceased Viji is proved to be the wife of the 1st accused. It rejected the contention of the learned Counsel for the accused that since the prosecution has not proved the legal divorce in respect of the  first marriage of the deceased, the 2nd marriage should not be treated as a valid marriage at all.  The trial court, thereafter, proceeded to appraise the evidences of P.Ws.1, 2 and 3 and the medical evidence of the postmortem Doctor and concluded that the deceased would appear to have died of asphyxia due to hanging and therefore, it is an unnatural death and further since the death is within 7 years from the date of the marriage and from the evidence of P.Ws.1, 2 and 3, it is clear that there  was dowry demand and harassment of the deceased victim demanding a bike, came to the conclusion that all the four accused had committed the offences under Sections 498-A, and 304(B) of IPC and sentenced them accordingly as aforesaid.

 

  1. Aggrieved by the same, all the four accused preferred a Criminal Appeal in C.A.No.1/2013 on the file of the learned Sessions Judge, Mahila Fast Track Court, Nagapattinam and the learned Appellate Court independently appraised the evidence on record and found that the evidence of P.W.1 and P.W.2 would categorically prove that the victim was harassed for dowry and taking into account the conduct of the accused and the corroborative evidence of P.W.4 and P.W.5 about the demand of the bike, rejected the contentions of the learned Counsel for the accused and found that the findings of the trial court is in order and therefore, dismissed the appeal confirming the conviction and sentence imposed on the accused by the learned trial court. Aggrieved by the same, the present Criminal Revision Case is laid before this Court.

    7. Heard Mr.Swamy Subramanian, the learned Counsel appearing for the petitioners.

 

  1. The learned Counsel for the petitioners would contend that in this case, the Trial Court as well as the Appellate Court did not appreciate the evidence in their proper perspective.  First, the very demand of the dowry and the harassment of the victim are in doubt because in respect of the first incident wherein the deceased victim is said to have told her family members about the physical attack on her cheek.  P.W.1 states that the deceased victim had told him that all the four accused attacked her demanding bike whereas P.W.2 would depose before the court that the deceased victim had told her that when she objected to her mother-in-law and her husband asking her jewels and giving it to the goldsmith residing in the opposite house to check whether the ornaments are gold or imitation jewelry, they attacked her enraged by her challenge and opposition.  According to the learned Counsel for the petitioners, this is a material contradiction between the P.W.1 and P.W.2.  Therefore, there is an element of doubt as to whether there was any demand of dowry at all.  He would submit that the gold ornaments being given as seedhana pursuant to the marriage cannot be taken as a dowry demand.

    9. The second contention of the learned Counsel for the petitioners is that so far as the accused 3 and 4 are concerned, it can be seen from the RDO report itself that they were living separately.  Even the Investigating Officer has admitted in his cross-examination that he has come to know that they were living separately.  The incriminating evidence on P.Ws.1, 2 and 3 etc. are giving a contrary version as if they were all living together in the same house with the deceased and therefore, they also subjected the deceased to torture.  Therefore, when they were not even living together and coupled with the fact that a huge time was taken to alter the Section 174 of Cr.P.C. as one under Section 306 of IPC and thereafter, one under Sections 498-A, 304(B) of IPC and Section 4 of the Dowry Prohibition Act, it can be seen that all the family members were roped in, to the whims and fancies of the relatives of the deceased-victim and it is highly unbelievable that the sister of the 1st accused and her husband would give a blow on the cheek of the deceased for the demand of the bike.  Therefore, he would submit that when a specific plea has been taken, as far as the accused 3 and 4 are concerned, the trial court simply brushed aside and the First Appellate Court also did not consider the evidence on record at all. Hence, this Court should interfere while exercising the revisional jurisdiction as the trial court and the appellate court did not even consider the plea taken.

  2. It is his further submission that in this case, the RDO report was received on 15.12.2007 itself and even thereafter, the investigation was carried on and only finding that there was no any dowry harassment, initially, the first alteration report was made as one under Section 306 of IPC.  Thereafter, without any additional materials whatsoever, the second alteration was made and this would itself show that the entire investigation is vitiated and there is an element of doubt in the very case of the prosecution itself.  Finally, he would submit that the independent witnesses including the Mahazar Witnesses have turned hostile in this case which would demonstrate the falsity of the case as except the family members of the victim who are interested witnesses, nobody has spoken anything about the conduct of the accused.
  3. Opposing the above submissions, Mr.L.Baskaran, learned Government Advocate (Crl. Side) would submit that as far as the investigation is concerned, originally it is rightly registered under Section 174 of Cr.P.C. and since the death of the wife is within 7 years of the marriage, they have to wait for the mandatory RDO enquiry. Upon receipt of the mandatory RDO enquiry report, first alteration under Section 306 of IPC was erroneously made and however upon entrustment of the investigation to the Deputy Superintendent of Police, upon legal advise, the second  alteration was correctly made and the report was also filed before the concerned Magistrate Court and thereafter, the investigation was correctly proceeded with and the final report has been filed. He would further submit that there is no contradiction of material nature in the evidence as pointed out by the learned Counsel for the petitioners/accused and submit that even P.W.2 also has stated about the dowry harassment for purchasing a bike in her evidence and a reading of the evidence of P.W.1 and P.W.2 would not reveal any contradiction and therefore, he would submit that the contention of the learned Counsel for the petitioners is incorrect.  He would also submit that even though some of the witnesses have turned hostile, they were cross-examined on behalf of the prosecution.  The evidence of P.Ws.1 to 3 on record, the family members of the deceased victim were corroborated by  the P.Ws.4 and 5 and  further corroborated by the  medical evidence on record.  Therefore, the prosecution has proved the charges to the hilt in this case and therefore, there is no any iota of doubt whatsoever so as to interfere in the Judgments of the Court below by exercising the revisional jurisdiction.  He would also submit that when P.Ws.1 and 2 have categorically deposed that the deceased-victim has  mentioned to him that all the four accused attacked on her cheek, there is no any ground to suspect the involvement of the accused 3 and 4 and therefore he would pray that the trial court and the lower appellate court have rightly convicted the accused and prayed for dismissal of this revision.

 

  1. I have considered the rival submissions of both sides. I have also considered the material evidence available on record.
  2. On an appreciation of the evidence of P.W.1 and P.W.2, I do not find any material contradiction as argued by the learned Counsel for the petitioners.  As a matter of fact, P.W.1 has deposed as follows:

”…vjphpfs; tPl;ow;F ehd; brd;W vdJ j’;if tp$paplk; clk;g[ rhpapy;iy vd;W vdf;F nghd; bra;jhh;fs;/ vd;d ele;jJ vd;W nfl;nld;/ vdJ j’;if mjw;F vdf;F ,Gg;g[ tutpy;iy vd;Wk; nkhl;lhh; irf;fps; th’;fp jutpy;iy vd;W vjphpfs; M$h; vjphpfs; 4 ngUk; moj;jjhf Twpdhh;/..”

P.W.2 has deposed as follows:
”…vdJ j’;if nghl;oUe;j eiffis vjph;j;j tPl;oy; ,Ue;j gj;jhplk; eifia fHw;w brhy;y th’;fp fthp’; eifah. gt[d; eifah vd;W ghh;g;gjw;fhf fhz;gpj;Js;shh;fs;/  tPl;oy; cs;s 4 ngUk; nfl;lhh;fs; vd;Wk;. vdJ j’;if Vd; re;njfg;gl;L ghh;f;fpwPh;fs; vd;W nfl;ljw;F eif gt[d; eifah. gpj;jis eifah vd;W ghh;j;njhk; vd;W vdJ j’;ifaplk; Twpa[s;shh; vd;Wk;. vd; tPl;oy; fthp’; eifah nghLfpwPh;fs; vd;W vdJ j’;if nfl;ljw;F moj;jjhf vd; j’;if vd;dplk; Twpdhh;/ tz;o vg;nghJ th’;fp bfhLf;f nghfpwPh;fs; vd;W tk;g[ tsh;j;jhh;fshk;/  vdJ j’;ifia ehd;F ngUk; bfhLikg;gLj;jp moj;J tpl;lhh;fs;//// ”

Therefore, even P.W.2 has also spoken about the harassment meted out to her sister by demanding a bike.  Just because she has mentioned about the gold episode in addition, that would not render the prosecution case vulnerable to doubt.

14. As far as the submission of the learned Counsel for the petitioners that the entire investigation in this case is vitiated and that the alterations of the sections would vouch for the said fact is concerned, a perusal of the both alteration reports on record would reveal that on the first occasion on the self-same allegations, the  case was altered into one under Section 306 of IPC, albeit, wrongly.  Thereafter, when the investigation was handed over to the Deputy Superintendent of Police, the second alteration has been rightly made as per the legal advise of the learned Additional Public Prosecutor and therefore, I do not find any legal impediment or material irregularity in the same which would make the entire investigation invalid. Neither the same has  in any manner cause prejudice to the accused or to their defence.  Therefore, I am rejecting the said submission made by the learned Counsel for the petitioners.

 

  1. As far as the submissions made by the learned Counsel for the petitioners relating to the independent witnesses turning hostile, I find that the same is also without any merit inasmuch as the evidence of P.Ws.1 and 2 are corroborated by P.W.3, the mother which was further corroborated by the independent evidence of P.W.4 and P.W.5 coupled with the medical evidence on record, proves the charge and therefore, the said submission of the learned Counsel for the petitioners is rejected.

 

  1. Coming to the contention of the learned Counsel for the petitioners regarding the specific overt act against the accused 3 and 4, I find there is some force in his submissions. Even at the earliest point of time, in the Revenue Divisional Officer’s Report, in the statement given by the witnesses the fact that the accused 3 and 4 were residing separately is recorded.  The Investigating Officer had also admitted in his cross-examination that he had come to know that they were residing separately. On the other hand, the evidence of P.W.1 which reads as follows:

”jpUkzj;jpw;F gpwF tp$p kw;w vjphpfSld; jpl;ilapy; cs;s khhpak;kd;nfhtpy; bjUtpy; FoapUe;jhh;fs;/ vy;nyhUk; xd;whf FoapUe;jhh;fs;////”

As far as the evidence of P.W.2 is concerned, she has deposed that her sister has told her that
”…. tPl;oy; cs;s ehd;F ngUk; nfl;lhh;fs;///”

At this stage, it is pertinent to state here that the father-in-law was also in the house. However, he has not been added as an accused because he was away from the scene of occurrence on the date of occurrence which is clear from the Revenue Divisional Officer’s Report.  Under these circumstances, there is an iota of doubt as to the involvement of the accused 3 and 4 is concerned.

17.  The learned Counsel for the petitioners would also submit that when the marriage itself has taken place on 24.06.2007, the first incidence is said to have taken place within few days of the marriage.  Therefore, it is extremely unbelievable that  the 4th accused, being the husband of the sister-in-law would have given a blow on her cheek.  Under these circumstances, in the absence of any other clinching proof about the involvement of the accused 3 and 4 with the crime, I find that there is force in the contention of the learned Counsel appearing on behalf of the petitioners that there is no enough material to convict the accused 3 and 4 for the offences alleged against them, as the only evidence against them is that of  PW-1 and PW-2 and the RDO’s report and Investigation Officer’s evidence go to the contrary.

 

  1. As a matter of fact, it is seen from the entire cross-examination of the accused including that of the Investigating Officer, such a defence has been specifically taken and without even adverting to the cross-examination, the trial court and the first Appellate Court have merely relied upon the statement of P.Ws.1 and 2 that ”vjphpfs; ehd;F ngUk; tz;o th’;fp bfhLf;ftpy;iy vd; kfis bfhLikg;gLj;jpdhh;fs;/”  Therefore, the non-consideration of the specific defence in detail and proper perspective is a grave error leading to miscarriage of justice as far as the accused 3 and 4 are concerned.  Therefore, it is a fit case for this Court to interfere with the findings of the courts below by exercising the revisional jurisdiction. and accordingly, I an inclined to set aside the conviction and sentence imposed on the 3rd accused Radha and the 4th accused Mahendran, while confirming the conviction and sentence in respect of the accused 1 and 2 in this case.   As far as the quantum of sentence is concerned, the trial court has imposed only a minimum sentence of 7 years for the offence under Section 340(B) IPC.  Therefore, it does not warrant any interference by this Court.

    19. In the result, the Criminal Revision Case is partly allowed.  The conviction and sentence imposed by the learned Assistant Sessions Judge, Nagapattinam in S.C.No.141/2011 by judgment dated 03.01.2013 and confirmed by the judgment of the Mahila Fast Track Court, Nagapattinam dated 03.06.2014 in C.A.No.1/2013 in respect of the accused 3 and 4 are set aside. The conviction and sentences in respect of the petitioners/accused 1 and 2 are confirmed.  The fine amount, if any, paid by the  accused 3 and 4 is ordered to be refunded to them.  Consequently, connected Miscellaneous Petitions are closed.
    22.12.2021

Index : yes/no

Speaking/Non Speaking order

 

tsi

 

D.BHARATHA CHAKRAVARTHY, J.

 

tsi

 

 

 

 

To

1.Mahila Fast Track Court, Nagapattinam.

2.The Chief Judicial Magistrate, Nagapattinam.

3.The Public Prosecutor, High Court, Madras.

4.The Inspector of Police, Sirkazhi Police Station.

 

 

 

 

 

 

Crl.R.C.No.902/2014

 

 

 

 

 

 

 

 

 

22.12.2021

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