Daily Archives: June 1, 2013

love marriage,burns,3 conflicting dying declarations,wife dies,very bad case handling,husb.acquitted

Notes from the detailed judgement below

  • Love marriage
  • Couple from different communities
  • withing three months of marriage there is a fire accident at home
  • husband and neighbour put off fire
  • take wife to hospital
  • wife makes three dying declarations – two to magistrates and one to police
  • she makes contradictory statements on these declarations
  • bad case handling at lower court
  • most of the witnesses , police, doctor etc are NOT examined by prosecution
  • HC unhappy with case handling at lower court
  • Husband acquitted

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 22/11/2012

CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRIMINAL APPEAL (MD).No. 56 of 2011

Arul Prasad
S/o.Sathiyanathan
No.9 TVK Road,
Near School Bus Stop
Sorampatti
Erode District. … Appellant

Vs.

The State, rep by
Deputy Superintendent of Police
Pasupathipalayam Police Station
Karur District.
Crime No.6560 of 2008 … Respondent

PRAYER

Appeal is filed under Section 374 of the Code of Criminal Procedure
against the conviction and sentence passed by the District and Sessions Judge, Karur District, made in S.C.No.94/2009.

!For Appellant … Mr.V.Kathirvelu
Senior counsel for
Mr.K.S.Duraipandian

^For Respondent… Mr.C.Ramesh
Additional Public Prosecutor

:JUDGMENT

(Judgment of the Court was delivered by S.NAGAMUTHU, J.)

The appellant is the sole accused in S.C.No.94 of 2009 on the file of the learned Sessions Judge, Karur. He stood charged for an offence under Section 302 IPC. The trial Court by judgment dated 07.02.2011 convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one month. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.

2. The case of the prosecution in brief is as follows:

The deceased in this case was one Jeyashri, aged 19 years. She belonged to Gowda community. The accused belongs to Gavara Naidu community. They had fallen in love with each other and finally, they married on 23.03.2008. After the marriage, they were residing at Pasupathipalayam North street. P.W.1 is the landlord of the said house. The accused and the deceased were residing in the same as tenants. P.W.1 was residing in a different house owned by him just opposite to the house, where the deceased was residing. In due course of time, according to the prosecution, the accused developed suspicion over the fidelity of the deceased. Therefore, there were frequent quarrels and the accused started causing cruelties to her. While so, on 21.05.2008, at about 10.30 a.m., the deceased was engaged in cooking. And at that time, due to the above motive, it is alleged that the accused removed the cap of a burning stove and poured kerosene from the stove on the deceased and set fire to her. At that time, the accused also shouted at the deceased by saying "die with this". On hearing the alarm raised by the deceased, P.W.1 rushed to the house of the accused. She found the deceased nude, with injuries. She was actually in flames. The accused cried for help for water to douse the fire. The accused as well as P.W.1 managed to extinguish the fire. Then the accused took the deceased to the Government hospital at Karur and admitted her as inpatient at 11.30 a.m. on 21.05.2008. (Neither the doctor, who admitted the deceased in the hospital, has been examined nor the accident register has been marked by the prosecution) The Duty Medical Officer sent a message to the Judicial Magistrate, Karur, requesting her to record a dying declaration. The injury found on the deceased as recorded by the Doctor was 100%. Ex.P.21 is the intimation.

3. On receiving the said intimation, P.W.11, the then Judicial Magistrate No.II, Karur, proceeded to the Government hospital, Karur and recorded her dying declaration at 1.00 p.m. on the same day. One Doctor, V.Natesan, who was attending on the deceased, opined that the deceased was conscious and she was in a fit state of mind to make a voluntary statement. The Judicial Magistrate also ascertained with the deceased by asking certain questions and based on the answers cogently given by the deceased and also on the opinion given by the Doctor, satisfied that the deceased was in a fit state of mind to make the dying declaration. Accordingly, the Judicial Magistrate, recorded the dying declaration, Ex.P15.

4. Thereafter, the father of the deceased viz., P.W.13, his wife, daughter and other relatives came down from Bangalore to Karur on 22.05.2008. Admittedly, they were by the side of the deceased. Thereafter, the deceased told P.W.9, Dr.Geetha, who was attending on the deceased that she wanted to give yet another dying declaration to a Judicial Magistrate. P.W.9 would state that initially, she did not take very seriously, the request made by the deceased. She would further state that because the deceased was repeatedly insisting her to send for a Judicial Magistrate for the purpose of recording dying declaration from her, she sent an intimation under Ex.P13 on 24.05.2008 at 2.15 p.m. to the Judicial Magistrate to record dying declaration again from the deceased. On the basis of the said request under Ex.P13, P.W.2, the then Judicial Magistrate No.II, Kulithalai proceeded to the Government Hospital, Karur on 24.05.2008 at 6.05 p.m. P.W.9 Dr.Geetha was still on duty in the hospital. The Judicial Magistrate satisfied himself that the deceased was in a fit state of mind to make a dying declaration. This satisfaction, according to P.W.2, was arrived at on the basis of his own enquiries with the deceased and on the basis of the opinion given by P.W.9. Ex.P4 is the second dying declaration given by the deceased and recorded by P.W.2.

5. Thereafter, P.W.8, the then Sub Inspector of Police went to the hospital on 27.05.2008 and recorded Ex.P8 statement from the deceased. On returning to the police station, on the same day, she registered a case in Crime No.656 of 2008 under Section 498(A) IPC. Ex.P.9 is the First Information Report. Then she forwarded Ex.P8 and Ex.P9 to the Court.

6. Taking up the case for investigation, P.W.8 proceeded to the place of occurrence, prepared observation mahazar and also prepared a rough sketch in the presence of P.W.1 and another witness. Ex.P1 is the observation mahazar and Ex.P11 is the rough sketch. She examined P.W.1 and few more witnesses and recorded their statements. On 03.06.2008, the deceased succumbed to the injuries in the hospital. Thereafter, P.W.8 handed over the case diary to P.W.12 for investigation.

7. Taking up the case for investigation, P.W.12 altered the case into one under Section 174 Cr.P.C. Ex.P16 is the alteration report.

8. Since the death of the deceased was hardly within three months after her marriage, P.W.12 forwarded the relevant papers to the Sub Divisional Magistrate cum Revenue Divisional Officer, Karur for holding an inquest. Accordingly, P.W.10, the then Revenue Divisional Officer, Karur conducted inquest on the body of the deceased on 03.06.2008 in the Karur Government Hospital. At that time, she examined the accused, P.W.1 and the parents of the deceased and recorded their statements. Ex.P14 is the inquest report. On completing the inquest, the Revenue Divisional Officer forwarded the body for autopsy. Then P.W.10 submitted her report to P.W.12 for further investigation.

9. P.Ws.3 and 4 conducted autopsy on the body of the deceased. They found the following injuries:-Burnt wound with foul smelling seen on the scalp, neck, face, whole of upper and lower limbs, chest, abdomen, back of the body, except foot. Hair-charred. O/D skull-intact, Brain Pale, Hyoid Bone-intact, Trachea – No soot particles, Lungs – Pale, Heart – 50 ml. Of blood, Stomach – empty, Bladder -empty, Uterus – Bulky, alteration seem – 3ml. All internal organs – Pale. Ex.P15 is the postmortem certificate. According to the doctors, the deceased would appear to have died of septicemic shock due to the burn injuries.

10. Continuing the investigation, P.W.12 arrested the accused on 04.06.2008 at 4.00 p.m., at his house in the presence of P.W.6 and another witness. On such arrest, the accused made a voluntary confession. Then, he was sent to Court for judicial remand. In his confession, the accused disclosed that he would identify the place, where he had hidden the kerosene cane and an yellow bag. Accordingly, he took P.W.12 and the witnesses to Amaravathi River bank, from where, he produced M.O.6 – plastic kerosene cane and M.O.7 – bag. These two articles were recovered by P.W.12 under Ex.P.7 mahazar.

11. Then, P.W.12 forwarded the material objects to the Court. He altered the case into one under Section 498A and 302 IPC on 06.06.2008. Ex.P17 is the alteration report. The accused was also admitted in the hospital for the injuries sustained by him. On 04.06.2008, P.W.12 examined Dr.Natesan and collected the accident register (Ex.P20) relating to the accused. Thereafter, since P.W.12 was transferred, he handed over the case diary to the successor P.W.14.

12. P.W.14 examined the Doctors, who conducted autopsy and recorded their statements. He also collected the medical records. On completing the investigation on 02.03.2009, he laid charge sheet against the accused under Sections 498(A) and 302 IPC.

13. Based on the above materials, the trial Court framed a lone charge against the accused under Section 302 IPC. Since the accused denied the charge, he was put on trial. As many as 14 witnesses were examined, 22 documents were exhibited on the side of the prosecution besides 7 material objects.

14. Of the 14 witnesses, P.W.1 is the vital witness. As we have narrated above, he is the neighbour of the deceased and the landlord of the house, where the deceased was residing. He has stated that on hearing the alarm raised by the deceased, he rushed to the house of the deceased, where he found the deceased in flames. She was nude. The accused was near her and he was crying for help and he was searching for water. P.W.1 and the accused extinguished the fire on the deceased and thereafter the accused took her to the hospital. P.W.11 the then Judicial Magistrate, No.II, Karur has spoken to about the dying declaration recorded by her on 21.05.2008. (Ex.P15) P.W.2 the then Judicial Magistrate No.II, Kulithalai, has spoken to about the dying declaration recorded by her on 24.05.2008. P.W.8, the Sub Inspector of Police has spoken to about the statement given by the deceased to her on 27.05.2008 under Ex.P8. P.Ws.3 and 4 have spoken to about the autopsy conducted by them on the deceased. P.W.9 has spoken to about the condition of the deceased at the time when Ex.P4 dying declaration was recorded. P.W.6 has spoken to about the arrest of the accused, the confession and the consequential recoveries of the material objects. P.W.10, the then Revenue Divisional Officer has spoken to about the inquest conducted by her. The others are official witnesses.

15. When the above incriminating evidence were put to the accused under Section 313 Cr.P.C., he denied the same as false. In the written statement made by him under Section 313 Cr.P.C., the accused has stated that while the deceased was cooking, accidentally, she came into contact with fire in the stove and thus, she sustained burn injuries. On hearing the hue and cry of the deceased, according to him, he rushed to the kitchen and he extinguished the fire. He has also stated that he sustained burn injuries in the very same occurrence, while attempting to put out the fire. Thus, according to him, he was innocent and he did not set fire to the deceased.

16. Having considered the above materials, the trial Court found the accused guilty under Section 302 IPC and accordingly punished him. That is how, the appellant is before this Court with this appeal.

17. We have heard the learned Senior counsel for the appellant and the learned Additional Public Prosecutor for the State and we have also perused the records carefully.

18. The learned Senior counsel for the appellant would submit that in this case, there are as many as 3 dying declarations recorded by three different persons. The earliest dying declaration was the one recorded on 21.05.2008 by P.W.11, the then Judicial Magistrate No.II, Karur. The learned Senior counsel would further submit that in that earliest dying declaration, the deceased has told that while she was cooking, she accidentally came into contact with the fire in the stove and that is how she sustained burn injuries. She has also stated that her husband, who was there, extinguished the fire and in the said process, he also sustained burn injuries. The second dying declaration was the one recorded by P.W.2 on 24.05.2008. In the second dying declaration, the deceased has stated that the accused, out of suspicion over her fidelity, set fire to her by pouring kerosene taken out from the stove. The third dying declaration (Ex.P8) is the one recorded by way of a statement by P.W.8., on 27.05.2008. In that also, she has stated that the she accidentally came into contact with fire.

19. After taking us through these three dying declarations, the learned Senior counsel would submit that the earliest dying declaration should be given weightage of. In any event, the learned Senior counsel would submit that if there are contradictory dying declarations made by the deceased, the benefit of doubt arising out of the same should be given only in favour of the accused. In other words, according to the learned Senior Counsel, the dying declaration in favour of the accused should be given due consideration.

20. The learned Senior counsel would further point out that at the time when the first dying declaration was recorded by the Judicial Magistrate, the parents of the deceased were not there by her side. They rushed to the hospital only on 22.05.2008. Thereafter only, according to P.W.9 Doctor, the deceased started to insist to send intimation to the Magistrate to record yet another dying declaration. From this, the learned Senior counsel would submit that after the arrival of the parents and the other family members of the deceased and on their tutoring, the deceased had changed her version and that is how, in Ex.P4 had come into existence. The learned Senior counsel would further submit that regarding the material objects recovered at the instance of the accused, no importance could be attached, because, the relevance between these two material objects with the alleged crime has not been spoken to by any witnesses. In any event, the learned Senior counsel would submit that the prosecution has not proved the case and therefore, the judgment of the trial court requires interference.

21. The learned Additional Public Prosecutor, per contra, would vehemently oppose this appeal. According to him, when the first dying declaration came into existence, the accused was by her side taking treatment in the hospital. It was because of the presence of the accused, the deceased was not free to speak the truth. The learned Additional Public Prosecutor would rely on the evidence of P.W.9, Doctor Geetha, wherein she has stated that the deceased told her that because her husband insisted her not to tell the truth, out of fear, in the dying declaration, she did not tell the truth. In the second dying declaration (Ex.P4) the deceased had stated that in the first dying declaration, because of the request made by her husband and due to fear for him, she did not disclose the truth. Relying on this, the learned Additional Public Prosecutor would submit that the first dying declaration cannot be given any weightage of and the same should be rejected.

22. The learned Additional Public Prosecutor would further submit that in the subsequent dying declarations, i.e. Ex.P4, the deceased has very clearly stated that it was this accused, who set fire on her. The learned Additional Public Prosecutor would also add that the lower court discarded Ex.P15 and has relied on Exs.P4 rightly. Thus, according to the learned Additional Public Prosecutor, the conviction of the accused based on Ex.P4, requires no interference at the hands of this Court.

23. We have considered the above submissions and we have also perused the materials available on record carefully.

24. At the outset, we have to state that as rightly pointed out by the learned Additional Public Prosecutor, there are three dying declarations contradictory to each other. In the first dying declaration, dated 21.05.2008 (Ex.P15), the deceased has clearly stated that she sustained injuries accidentally, while she was cooking by using kerosene stove. Admittedly, when the dying declaration was recorded, the parents of the deceased were not there. They reached the hospital only on 22.05.2008. As pointed out by the learned senior counsel for the appellant, it was only after their arrival, the deceased expressed her desire to give yet another dying declaration. Therefore, P.W.9 sent intimation to the Judicial Magistrate to record the second dying declaration. Therefore, it is crystal clear that before 24.05.2008, the deceased would have been tutored by her parents. The parents had motive because the deceased was abducted by the accused for the purpose of marriage. Therefore, no weightage could be given to Ex.P4. In Ex.P8 again the deceased has told that while cooking, she accidentally came into contact with fire in the stove. This dying declaration was recorded by P.W.8. The lower Court has rejected this dying declaration stating that the said statement would not have been made at all by the deceased. But P.W.8 was not treated as hostile at all by the prosecution. It is not as though, the prosecution does not rely on the evidence of P.W.8 and Ex.P8. They have relied on the third dying declaration Ex.P8 and the evidence of P.W.8. Had it been the case that P.W.8 was treated as hostile by the prosecution and had it been the case that according to the prosecution, Ex.P8 was not at all given by the deceased to P.W.8, then, we would have appreciated the trial Court for the finding that Ex.P8 would not have been given by the deceased. But as we have stated above, the evidence of P.W.8 has not been disbelieved by the prosecution and the prosecution still wants to rely on Ex.P8. The prosecution has projected Ex.P8 also as a true dying declaration of the deceased. If that be so, Ex.P8 is fully in favour of the accused and is quite contrary to Ex.P4. Ex.P8 is in consonance with Ex.P15. Thus, out of three dying declarations, two dying declarations favour the accused and one is against him. As we have already stated no weightage could be given to the second dying declaration (Ex.P4) for the reasons stated above. In any event, when there are multiple dying declarations, out of which, some are in favour of the accused and some are against him, quite naturally, as per the settled law, the dying declaration in favour of the accused should be preferred. In this case, applying the said principle, we have only to hold that the prosecution has failed to prove that the accused set fire to the deceased.

25. In respect of recovery of the plastic cane and yellow bag, as rightly contended by the learned Senior counsel for the appellant, the relevance between these two material objects with the alleged crime has not been spoken to by any witnesses. In the absence of the same, the disclosure statement becomes inadmissible, as it does not satisfy the requirement of Section 27 of the Evidence Act. Therefore, the recovery of the material objects, namely, the plastic cane and the yellow bag cannot be considered for any purpose.

25. Now, turning to the manner, in which the prosecution case has been conducted before the trial Court, we would like to express our dissatisfaction. The prosecution has not chosen to examine the Doctor, who admitted the deceased in the hospital. Similarly, the accident register pertaining to the deceased has also not been marked. When the deceased was admitted in the hospital, certainly, she would have given a statement to the Doctor. The said statement, being the earliest one, should be given weightage as the earliest dying declaration. We are not able find as to what was the earliest statement made by the deceased to the Doctor. Nextly, on 21.05.2008, one Dr.Natesan certified that the deceased was in a fit state of mind to make the dying declaration as found in Ex.P15 dying declaration. But it is unfortunate that even the said Dr.Natesan, who was a witness to the dying declaration recorded by P.W.11 and certified that the deceased was in a fit state of mind, has not been examined. Nextly, the deceased was admitted in the hospital on 21.05.2008. Certainly intimation would have been sent to the police. But still, complaint was recorded by the police from the deceased only on 27.05.2008. Absolutely, there is no explanation offered by the prosecution as to why the Police did not choose to obtain a complaint either from the deceased or from some one to register the case as soon as the intimation from the hospital. P.W.8, simply told that on the directions of the Inspector on 27.05.2008, she went to the hospital and recorded Ex.P8. Who was that Inspector who gave direction to P.W.8 and how he came to know that the deceased was undergoing treatment in the hospital are all matters, which have not been explained by the prosecution. The said Inspector has also not been examined. The case sheet pertaining to the deceased also has not been produced in evidence. P.W.9 – Dr. Geetha has stated that subsequent to the recording of the Ex.P15 dying declaration by the Magistrate, the deceased started saying that she wanted to give yet another dying declaration. Had it been true, the same would have been recorded in the case sheet. The case sheet is a primary evidence. The said case sheet of the deceased maintained in Karur Government Hospital also has not been marked in evidence. Regarding the death of the deceased, we do not have any medical record relating to the time of death, as the death intimation sent to the police has not been marked. Above all, P.W.8 has not deposed anything about the alteration of the First Information Report. Admittedly, the case was registered on 27.05.2008 by P.W.8 under Section 498(A) IPC. As per Ex.P16, one Sub Inspector of Police, altered the case into one under Section 174 Cr.P.C. P.W.8 has not stated that she was the one who altered the case. If that be so, who was the Sub Inspector of Police, who altered the case and submitted Ex.P16 is not known.

28. To repeat, P.W.8 has not stated anything about Ex.P16. Ex.P17 is another alteration report, by which, the case was altered into one under Section 302 IPC. This has been done by the Deputy Superintendent of Police on 04.06.2008. The Revenue Divisional Officer, (P.W.10) has concluded in the inquest report (Ex.P14) that the deceased died of accident. During inquest, the father, mother and other family members of the deceased were also examined by P.W.10. If really, the deceased was conscious, quite naturally, she would have told her parents that she was set fire by her husband. If that be so, during the inquest, they would have told P.W.8 about the statement made by the deceased, in which case, the conclusion in the inquest report would not have been to the effect that the deceased died due to accidental fire. All these would go to show that the prosecution has not projected the case properly before the trial Court by letting in proper evidence. At any rate, we have no doubt in our mind that the prosecution has not proved the case beyond reasonable doubts and thus the conviction cannot be sustained.

29. In the result, the appeal is allowed; the conviction and sentence imposed by the learned Sessions Judge, Karur Division made in S.C.No.94/2009, is set aside and the appellant is acquitted of the charge. Fine amount, if any, paid shall be refunded to the accused. The appellant is directed to be released forthwith, if his detention is not required in any other case.

RR

To

1. The District and Sessions Judge,
Karur District,

2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

husband forced unnatural sex frm first night & continued dowry demands @USA! book all family! Husband and family assail jurisdiction. HC quashes cases ONLY against sisters, leaves it open against husband and parents

Notes from the detailed judgement below

  • Husband and family seem to be very respectable doctors
  • Husband father and sister are also doctors.
  • Many of family are settled in USA
  • Husband (also a doctor ) gets married in June 2010
  • They have lived at USA for most of the time and hardly ever lived together in Madras
  • Wife alleges that husband demanded UN natural sex right from first night
  • She also alleges that he continued with his unnatural sex demand while living together at USA
  • Wife ALSO alleges that husband took nude photos of her and threatens to publish them in USA
  • Wife files some cases in USA
  • She also alleges that she had NO access to phones or e mail or any communication while in USA
  • Wife alleges that husband tortured her and kept in a room and forced to take contraceptive pills which developed adverse affect of her health
  • so the wife has filed a 498a and 406 case against the husband and many others in the family – the usual list – father in law, mother in law, sisters in law etc 😦
  • Bizzaire as they may sound, none of the allegations are backed by any proof
  • Husband and co also show contradictory proof like normal e mail exchanges etc etc
  • Husband and family try JURISDICTIONAL quash saying all allegations of torture are at USA , so outside India
  • However HC says that since the sex torture started from the first night !! which happened in India, the HC feels there is sufficient jurisdiction and so quashes the case ONLY against the daughters and leaves it open against the husband and parents

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.09.2012

CORAM:

THE HON’BLE MR.JUSTICE A.ARUMUGHASWAMY

Criminal Original Petition No.14656 of 2012

1. Dr.Harihar Narasimha Iyer
2. Dr.Narasimha Iyer
3. Prof. Krishnakumari Ammal Rajammal
4. Dr.Indulekha Gopal
5. Anuradha Narasimhan … Petitioners/Accused

Versus

1. State of Tamilnadu rep. by
Inspector of Police, W.19,
All Women Adayar Police
Station, Chennai-20. … Respondent/Complainant

2.Mrs.Krupanjana Ananth … Respondent/Defacto Complainant

Petition filed under Section 482 of Cr.P.C., praying to call for the records in the F.I.R. No.10 of 2012 on the file of the W19-All Women Police Station, Adayar, Chennai-20 and quash the same.

For petitioners .. Mrs.Nalini Chidambaram, Sr. Cl.
for Mr.R.Nadanasabapathy.

For 1st Respondsent.. Mr.C.Emilias,
Govt. Adv. (Crl.side)

For 2nd Respondent .. Mr.T.K.Sai Krishnan.

O R D E R

The first petitioner is the husband of the second Respondent/Defacto Complainant, petitioners 2 and 3 are the parents of the first petitioner and petitioners 4 and 5 are the sisters of the first petitioner. They are arrayed as Accused No. 1 to 5 in FIR No.10 of 2012 on the file of the All Women Adayar Police Station, Chennai-20 for the alleged offence under Sections 498A and 406 of IPC. They have come forward with this petition seeking to quash the FIR No.10 of 2012 on the file of the first Respondent.

2. The allegations in the complaint are:- On 2nd June, 2010, the marriage between the first petitioner and the second respondent took place at Chennai. Right from the date of marriage, the husband has forced the wife to do unpleasant sexual acts. The day after the wedding there were accusations and gossips about the insufficient gold ornaments and other dowry articles brought by the wife from her parents during marriage. Even during physical intimacy, whenever the wife refused to part with his unpleasant demands, the husband used to abuse her with filthy words and physically harass her very badly. The husband used to behave with his wife in an unusual manner. The husband ensured that the complainant don’t have any communication with any of her friends, relatives by denying her a telephone access, computer and any sort of communication device while she was at USA. The wife had no access to mail box or other household keys and no telephone connection was allowed to use she was like a caged bird. Most of the times the phone cable would be unplugged or disconnected so she would not be able to receive any calls from her family. The wife had no privacy or privilege of freedom to hear communications amounting to a Human Rights Violation.

3. Further in her complaint, she has stated that the remaining Accused persons encouraged all the sexual extortion acts of the first petitioner. The first petitioner forcibly capturing several nude and obscene pictures of her and threatening her that it would be published on line in the social networking and pornographic sites in USA if she is not meeting their demands of dowry.

4. From the perusal of the complaint it is seen that the first petitioner has vitiated the sex behaviour on the complainant which she could not bear with. The first accused tortured her and kept in a room and forced to take contraceptive pills which developed adverse affect of her health. It has been opined by the Doctor at USA when she went for medical examination. Even she was not allowed to convey to Doctor about her personal sufferings. Her personal life was such a precarious position commenced from India and proceeded to up to United States.

5. On 26.10.2011, Diwali day, the accused demanded from the complainant to bring the amount worth about Rs.25.00 lakhs and gold ornaments of not less than 50 sovereigns. This was facilitated by her father who ensured making available a single return ticket as demanded by the first petitioner, so that they will allow her to go to India. With the above allegations the complaint was given by the complainant against the accused i.e. the present petitioners.

6. The learned senior counsel appearing for the petitioners has raised three grounds to quash the FIR against the petitioners:

(i) The occurrence took place only at the jurisdiction of United States of America, therefore, the first Respondent has no jurisdiction to register the case.

(ii) As the petitioners are the residents of United States of America, the FIR registered by the first respondent against the petitioners is not maintainable for want of sanction from the Central Government as provided under Section 188 of Cr.P.C. To substantiate the said contention, the learned senior counsel appearing for the petitioners relied upon the judgment in the case of Mohandoss and four others Vs.State rep. by Inspector of Police, All Women Police Station,Thallakulam, Madurai and another reported in 2003 (3) CTC 54 wherein it has been held that this Court has enormous power to quash the complaint.

(iii) There is no specific allegation against the other family members regarding the demand of dowry as well as harassment. Hence, she prayed that the FIR against the petitioners has to be quashed.

7. From the perusal of the complaint, it is seen that the marriage had taken place at Chennai on 02.06.2010 and thereafter, the complainant lived with her husband at United States of America is not in dispute. On the marriage day evening itself the behaviour of the first petitioner was abnormal one and he behaved like a perverse manner, not as an ordinary person and his request could not tolerated by a wife. In the complaint, she has further stated that in spite of his ill-health viz., stomach viral infection, he has forced her to do unpleasant sexual acts. On the same day evening the parents of the first petitioner demanded and expected more gold ornaments and sridhana articles from the parents of the complainant. These are the wild allegations made in the complaint.

8. The contention of the learned senior counsel appearing for the petitioners is that that there is no such harassment as contended by the complainant, as it is seen from the E.Mail sent by the complainant to the first petitioner from Japan as well as in India as soon as she landed at Chennai the correspondence was normal one. The said E.Mails will disclose that of course on 29.11.2011 she has very casually gave an E.Mail from Japan and thereafter on 30.11.2011 an E.Mail from India. Thereafter only after meeting the Gynecological Doctor, on 16.12.2011 the father of the complainant sent an E.Mail to the first petitioner. In that it has been mentioned the father of the complainant was curious to know about the problem which was faced by his daughter at United States of of America. Even though he mailed this and tried to contact his son-in-law over phone A3 the mother of the first petitioner alone picked up the phone and she refused to give it to A1-the petitioner. In such way E.Mail message has been sent on 16.12.2011 and 17.12.2011 by the father of the complainant. The above correspondence has been produced by the second respondent by way of typed set. On 24.12.2011 the Complainant sent a E.Mail message to her husband regarding the threat made by her husband that the nude photographs will be published in the Face book to tarnish her image. There was no such effective response from A1-husband. Thereafter the complainant made a written complaint to California Court praying relief under Domestic Violence Restraining Order.

9. In the complaint before the Superior Court of California, at Almeda she has stated that on 28.11.2011 on her birth day, her husband had taken nude photographs of her in his digital camera when she was coming out of the bathroom. Further she has stated that when her husband was in German in the month of October 2011, he called on her to participate in phone sex. On 04.05.2012 the complainant has preferred the complaint narrating all those things, before California Federal Forum. On 03.12.2011 the complainant came to India. On 14.05.2012, the first petitioner husband filed a divorce petition at USA. Later on she has filed the present complaint on 24.05.2012 before the All Women Police at Adayar, Chennai. With this backdrop the case has been presented before this Court. There is no much dispute regarding the above sequences.

10. Considering the rival submissions and perusal of the documents it is seen that the marriage between the petitioner and the second respondent taken place at Chennai and on the same day evening itself problem had started regarding dowry demand as well as sexual abuse suffered by her. This torture extended upto United States of America. Thereafter she comes over to India and then she proceeded to a Gynecologist and on examination the doctor informed the complainant about the irregular gynecological cycle and further it came to the light that the complainant had taken contraceptive pills also continuously for very long time that leads to the gynecological problem. After reaching India only she gave a complaint before the Superior Court of California, at Almeda and a Request for Domestic Violence Restraining Order requesting to pass an order against her husband. Therefore, from this allegations prima facie wild allegations have been made against the husband as well as his parents.

11. Now, the point for my consideration is as to whether the complaint filed by the wife before the first respondent police attracts the jurisdiction to register the complaint?

12. As I have already discussed the husband started committing the offence immediately after of the marriage on the same day evening and it continued till her return to India. Since it is a matrimonial dispute between the husband and wife and further both the persons are Indians, there is no need for any previous sanction as provided under Section 188 of the Cr.P.C. Therefore, I am of the view that the present complaint is maintainable in law. It does not require any sanction since it is a day to day domestic quarrel. While considering the other contentions of the learned senior counsel appearing for the petitioners it is seen that already two complaints have been given by the spouse at USA.

13. No doubt, in the judtgment relied upon by the learned senior counsel for the petitioners in the case of Mohandoss and four others Vs.State rep. by Inspector of Police, All Women Police Station,Thallakulam, Madurai and another reported in 2003 (3) CTC 54 it has been held that:-

" There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."

This Court is not different opinion regarding the proposition laid down by the Hon’ble Supreme Court of India in the judgment reported in 2003(3) CTC 54 (supra). But the facts and circumstances of the present case is in a different footing. Therefore, from any angle I am of the view that the complaint against the petitioners 1 to 3 before the first respondent is maintainable in law and it has to be enquired into.

14. Regarding the allegations against the petitioners 4 and 5 is concerned, even though they are the residents of USA in the same house. Further, they never came to Madras. There is no specific allegation has been made against the petitioners 4 and 5 regarding any demand of dowry or any inducement regarding the dowry harassment. Since there is no specific allegation as against the petitioners 4 and 5 no case is made out against the petitioners 4 and 5. Therefore, I hold that the FIR against the petitioners 4 and 5 is abuse of process of law as per the law laid down in the Bhajanlal’s case reported in State of Haryana Vs. Bhajan Lal (1992 Supp (1) SCC 335). Hence, the FIR as against the petitioners 4 and 5 are quashed.

15. This Criminal Original Petition is partly allowed. The FIR as against the petitioners 4 and 5 are quashed. Regarding the other Accused viz., petitioners 1 to 3 the first respondent is directed to go further to avoid abuse of process of law and to have thorough investigation and proceed with the mater according to law.

Index:Yes/No 04.09.2012.

Internet:Yes/No

gr.

To

The Inspector of Police, W.19, All Women Adayar Police Station, Chennai-20.

A.ARUMUGHASWMY, J

gr.

PRE DELIVERY ORDER IN Crl.OP.No.14656 of 2012

04.09.2012

prsn acquitted of murder u/s 306 can be convicted u/s 498a even IF originally NOT charged 498a

Notes

  • married in 2001
  • husband leaves wife with maternal uncle and leaves for work in north india
  • wife visits parents to send of her relatives to sabari malai
  • husband’s maternal uncle visits wife at her parental home, insults her and slaps her
  • wife commits suicide by eating poisonous substance
  • husband’s uncle originally charged with 306 IPC, but convicted u/s 498a IPC
  • Accused go on appeal
  • Madras HC confirms that person charged with a major offense can be convicted of a minor offence even though originally NOT charged with 498a
  • However the accused is ready to pay compensation of Rs 50,000/- to the mother of the deseaced and so the judge removes imprisonment and changes that to compensation of rs. 50,000/- (total 55,000 including fine 5000)
  • Period of 35 days already undergone as imrisonment is considered as imprisonment in the case

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 03.08.2012

CORAM:

THE HONOURABLE MS. JUSTICE R. MALA

Criminal Appeal No.791 of 2005

Palanivel .. Appellant/Accused

v.

State rep. by
Inspector of Police
Thalaivasal Police station
Salem District. .. Respondent/Complainant

Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., against the judgment of conviction and sentence dated 30.08.2005, made in S.C.No.187 of 2004 on the file of the Sessions Court, Mahila Court, Salem.

For Appellant : Mr.V.Srinivasan
Mr.S.Kalyanaraman
For Respondent : Mr.C.Emalias
Government Advocate (crl.side)

J U D G M E N T

The criminal appeal arises out of the judgment of conviction and sentence, dated 30.08.2005, made in S.C.No.187 of 2004 on the file of the Sessions Court, Mahila Court, Salem, whereby the accused was convicted for the offence under Section 498A IPC and sentenced to undergo 30 months rigorous imprisonment and to pay a fine of Rs.2,000/- in default in payment to undergo five months rigorous imprisonment.

2. The respondent has filed a charge sheet against the appellant/accused stating that 10 months prior to 14.01.2002 (i.e) on the date of occurrence, the marriage was performed between the deceased Jayakodi and her husband Selvaraj, who left the village for attending rig work after leaving his wife with the custody of his maternal uncle viz., Palanivel, the accused. On 10.01.2002, Jayakodi came to her parents house to give send-off to his uncle Arumugam, who was about to go to Sabari mala and stayed there till 14.01.2002. On 14.01.2002, at about 5.00 p.m., the accused came there and abused her in filthy language and had beaten her with his hands. The deceased Jayakodi unable to bear the above humiliation caused by the accused, committed suicide during night hours on 14.01.2002 by consuming ettikottai, which is a poisonous substance. Thereby the accused has committed the offence punishable under Section 306 IPC.

3.The case of the prosecution is as follows:

(i) P.W.1/Sellammal is the mother of deceased Jayakodi. P.W.5/Deivanai is the mother-in-law of deceased Jayakodi and mother of Selvaraj. One Subramani and the accused Palanivel are P.W.5’s brothers. Marriage was performed between the deceased Jayakodi and one Selvaraj, 10 months prior to the date of occurrence (i.e.) on 14.01.2002. After the marriage, they lived together at the house of P.W.5. For avocation, Selvaraj went to North India to do rig work. Hence, he left his wife under the care and custody of the accused, who is his maternal uncle. P.W.4/Chinnammal is the sister of P.W.1 and her husband Arumugam was about to go to Sabari mala and that the deceased Jayakodi was permitted to go to her maternal home and she came there on 10.01.2002. After gave send off to her maternal uncle Arumugam, she stayed in her maternal home. On 14.01.2002, at 5.00 p.m., the accused came there and abused her in filthy language and assaulted her and dragged her to his house. On the same day, during night hours, deceased Jayakodi consumed ettikottai, a poisonous substance and informed the same to her mother-in-law/P.W.5. Immediately, deceased Jayakodi was taken by P.W.5 and two others, before P.W.7/Velayutham, who is the Native Doctor, gave native treatment to her and declared her dead. Then, P.W.5’s brother Subramani intimated the same to P.W.1, who is the mother of the deceased, rushed to the house of P.W.7 and witnessed her daughter dead.

(ii) On 15.01.2002, at 7.00 p.m., P.W.1 gave Ex.P1 complaint to P.W.12/Mohanraj, the then Inspector of Police, Thalaivasal Police station, who received the complaint, registered a case in Crime No.68 of 2002 under Section 174 Cr.P.C. The printed F.I.R. was marked as Ex.P10. Since the deceased died on the suspicious circumstance within seven years of her marriage, P.W.12 forwarded the same to P.W.10/Arumugam, an R.D.O. and P.W.11/Sundaram, the then Deputy Superintendent of Police, Attur.

(iii) P.W.10 after receiving original F.I.R. from P.W.12, conducted inquest on the body of Jayakodi in the presence of Panchayatdars. During the enquiry, he came to know that the death is not due to dowry demand and his report was marked as Ex.P6.

(iv) P.W.10 after conducting inquest, sent the body for post-mortem. P.W.9/Dr.Gurunatha Kandaiya, along with Dr.Nimmi conducted autopsy on the body of the deceased and the Viscera was sent for chemical analysis. Post-mortem certificate was marked as Ex.P3. He opined that the deceased would have appeared to died of probably poisoning 24 hours to 30 hours prior to autopsy.

(v) After receiving F.I.R. copy, P.W.11 took up the matter for investigation. He went to the place of occurrence and prepared Ex.P8 observation mahazar and drew rough sketch Ex.P7 in the presence of the witnesses one Selvam and P.W.8/Adhimoolam. Then he examined the witnesses and recorded their statements. On 16.01.2002, he altered the offence into Section 306 IPC and despatched the alteration report Ex.P9 to the Court. He sent the case file to P.W.12 for further investigation.

(v) P.W.12 took up the matter for further investigation. He went to the Government Hospital, Athur and examined the Doctors P.W.9 and Nimmi. After completing investigation, he filed a charge sheet against the accused under Section 306 IPC.

4.The learned trial Judge after following the procedure framed necessary charges against the accused. Since the accused pleaded not guilty, the trial Court examined P.W.1 to P.W.12 and marked Exs.P1 to P10. The trial Court placed the incriminating evidence before the accused, the accused denied the same in toto. After considering the oral and documentary evidence, the trial Court acquitted the accused/appellant for the offence under Section 306 IPC and convicted him for the offence under Section 498A IPC and sentenced him as stated above, against which, the accused/appellant preferred an appeal.

5.Challenging the conviction and sentence passed by the trial Court, learned counsel appearing for the appellant would submit that conviction itself is vitiated, since no charge has been framed against the accused/appellant for the offence under Section 498A IPC and no opportunity has been given to him for defending that offence. He also relied upon the decision reported in 1995-I-L.W. (Crl.) 57(2) (Baskaran v. State by Inspector of Police, Cuddalore N.T.Police Station) and 2010 (1) Crimes 769 (Madras) (Murugesa Pandian and others v. State by Inspector of Police, Tirupur, Coimbatore District) and submitted that cruelty defined under Section 498A IPC is a continuos harassment. He also relied upon the decision of Apex Court reported in (2002) 7 SCC 414 (Mohd. Hoshan, A.P. and another v. State of A.P.) and submitted that whether one spouse has been guilty of cruelty to the other is essentially a question of fact. Each case has to be decided on its own facts to decide whether the mental cruelty was established or not. He further submitted that if the Court comes to the conclusion that the accused is guilty of the offence under Section 498A IPC, some leniency may be shown to him by reducing his sentence. Hence, he prayed for allowing of this appeal.

6.Resisting the same, Mr.C.Emalias, learned Government Advocate (Crl. Side) submitted that even though charge has been framed against the accused/appellant under Section 306 IPC, the accused was acquitted under Section 306 IPC and he was convicted for the offence under Section 498A IPC. As per the evidence, on 14.01.2002, deceased Jayakodi was subjected to physical cruelty by the accused, who is none other than the maternal uncle of her husband. So the offence under Section 498A IPC is made out. As per the dictum of the Apex Court, cruelty is to be decided in the facts of each and every case.

7.He relied upon the Full Bench Judgment of Apex Court reported in AIR 2003 SC 11 (K.Prema S.Rao and another v. Yadla Srinivasa Rao and others) and submitted that even though the accused convicted under Section 498A IPC for the offence of cruelty on same evidence, he can be convicted for abetment of suicide under Section 306 IPC with aid of Section 221 Cr.P.C. So in the case on hand, Section 306 IPC is converted into Section 498A IPC by invoking Sections 221 and 222 Cr.P.C. It is further submitted that in respect of quantum of sentence is concerned, he leaves it to the Court’s discretion. Hence, he prayed for dismissal of the appeal.

8.Considered the rival submissions made on both sides and the materials available on record.

9.Now this Court has to decide as to whether the trial Court convicted the appellant/accused under Section 498A IPC is sustainable? In the charge framed against the accused, it was mentioned that on 14.01.2002, the accused abused the deceased Jayakodi in filthy language and slapped on her cheek and thereby the accused committed physical and mental cruelty, which forced her to commit suicide and hence, the charge under Section 306 IPC was framed against the accused.

10.It is appropriate to incorporate Section 498A IPC, which is extracted hereunder:

498A-Husband or relative of husband of a woman subjecting her to cruelty_Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation-For the purpose of this section, "cruelty" means-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.]

In this case, Explanation(a) of Section 498A IPC, is applicable to the facts of the present case.

11.Now this Court has to decide that if no charge has been framed under Section 498A IPC, whether the accused can be convicted for the said offence? At this juncture, it is appropriate to consider the decision of this Court relied upon by the learned counsel for the appellant 1995-I-L.W. (Crl.) 57(2) (Baskaran v. State by Inspector of Police, Cuddalore N.T.Police Station), in which, it was held that without framing of charge under Section 498A IPC, the accused would be highly prejudiced as he was not given opportunity for defending that offence, though cruelty is the common element for both the offences under Sections 306 and 498A IPC. It is necessary to extract para-5 of the above judgment, which read as follows:

"5. .. .. As there was no charge against him for Section 498A I.P.C., we cannot anticipate his defence for that section pleading the absence of cruelty. Therefore, now, if he is convicted under Section 498A I.P.C., as there is evidence, the revision petitioner would be highly prejudiced as he was not given opportunity for defending that offence, though cruelty is the common element for both the offences. The learned counsel Mr.S.Balasubramaniam refers to a decision in Shanthi v. State of Haryana (A.I.R. 1991 S.C. 1226), wherein the Supreme Court has taken the view that to avoid any technical defects, it is necessary to frame separate charges for Sections 304B and 498A I.P.C. under both the sections and if the case is established, they can be convicted under both Sections, but the sentence can only be under Section 304B IPC. In view of the difficulty, which the accused would face if he is convicted under Section 498A IPC without being a charge for the said offence, the Supreme Court has observed that separate charges are necessary for these two different categories of offence, though the punishment can be either for Section 304B or Section 498A IPC, according to the conviction. So, I also feel that the revision petitioner cannot be convicted under Section 498A without a charge for the said offence. The result would be, acquittal of the revision petitioner. "

12.Per contra, the learned Government Advocate (Crl. Side) relied upon the decision of Apex Court reported in AIR 2003 SC 11 (K.Prema S.Rao and another v. Yadla Srinivasa Rao and others) and submitted that even though the accused convicted under Section 498A IPC for offence of cruelty on same evidence, he can be convicted for abetment of suicide under Section 306 IPC with aid of Section 221 Cr.P.C. So it is appropriate to incorporate the following portion in the above judgment.

" .. .. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. .. .. "

13.At this juncture, it is appropriate to incorporate Sections 221 and 222 of Cr.P.C., which read as follows:

221.Where it is doubtful what offence has been committed.

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

222.When offence proved included in offence charged.

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, thought he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

(4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.

14.Considering the above decisions, even though the accused was not charged under Section 498A IPC, as per the dictum of the Apex Court reported in AIR 2003 SC 11 (K.Prema S.Rao and another v. Yadla Srinivasa Rao and others), I am of the view, the appellant may be convicted for the offence under Section 498A IPC, even no separate charge has been framed under Section 498A IPC. In my opinion, the available evidence are sufficient to convict the accused for the offence under Section 498A IPC.

15.Insofar as Section 306 IPC is concerned, the offence is grave in nature, but whereas, Section 498A IPC is concerned, the offence is lesser in gravity. So the argument advanced by the learned counsel for the appellant that without framing separate charge under Section 498A IPC, the appellant was convicted, moreover the appellant was not given any opportunity to defend his case, does not merit acceptance.

16.Now this Court has to decide as to whether the trial Court is correct in convicting the accused for the offence under Section 498A IPC and whether the cruelty has been proved. The prosecution has examined P.W.1 to P.W.4 to prove the same. P.W.2/Kasiammal and P.W.3/Venkatesan are independent witnesses and during the trial, they were turned hostile. P.W.1/Sellammal is the mother of the deceased Jayakodi. P.W.4/Chinnammal is the sister of P.W.1. The deceased Jayakodi was given marriage to one Selvaraj, who is the son of P.W.5/Deivanai, 10 months prior to the incident (i.e.) on 14.01.2002. Their marriage was love marriage. After the marriage, both were lived happily. P.W.5’s brothers are one Subramani and the accused herein. Because of avocation, Jayakodi’s husband Selvaraj left her under the custody of his maternal uncle, who is the accused herein. The above facts are not disputed.

17.On 10.01.2002, the deceased Jayakodi went to her maternal home to send off her junior maternal uncle, who is the husband of P.W.4, was about to go to Sabari mala. But she did not return back and stayed in her maternal home. On 14.01.2002, at 5.00 p.m., the accused came to P.W.1’s house and abused her in filthy language and slapped on her cheek and forcibly took her to his house. On 14.01.2002, during night hours, the deceased Jayakodi consumed poisonous substance (i.e.) ettikottai. When she intimated the same to P.W.5/her mother-in-law, she immediately took her to P.W.7/Velayutham, who is the Native Doctor in their village. P.W.7 gave glucose to wash her stomach, but she died. Then the brother of accused viz., Subramani intimated the fact to P.W.1, who rushed to the house of P.W.7, witnessed her daughter’s dead body.

18.While perusing the evidence of P.W.1 and P.W.4, they deposed that the accused had assaulted the deceased Jayakodi and abused her in filthy language. She also mentioned the vernacular word used by the accused, which is a filthy language. On the date of occurrence, the deceased was 18 years old. Since she unable to bear the above humiliation and torture caused by the accused, she gone to the extreme step of committing suicide by consuming ettikottai. At 12 o’ clock on 14.01.2002, she intimated the fact to P.W.5 and then, she was dead. As per the ingredients of Section 498A IPC, the ‘cruelty’ means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury by the husband of the women or any relatives of the husband. Admittedly, the accused/appellant is the maternal uncle of her husband Selvaraj. Therefore, the ingredients of Section 498A IPC is proved by the prosecution.

19.Now this Court has to decide as to whether the deceased was subjected to cruelty. On 14.01.2002, at 5.00 p.m., the accused slapped the deceased and abused her in filthy language and took her to his house, since she was not returned back to his house. In such circumstances, the deceased Jayakodi was subjected to both mental and physical cruelty made by the accused and unable to bear the same, she committed suicide. Therefore, I am of the view, the accused is guilty of the offence under Section 498A IPC, which defines cruelty.

20.Learned counsel for the appellant relied upon the decision of Apex Court reported in (2002) 7 SCC 414 (Mohd. Hoshan, A.P. and another v. State of A.P.) and submitted that cruelty has been depended upon the facts and circumstances of each and every case. In para-6, it is held as follows:

"6. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not. "

Considering the above decision, the mental cruelty depends upon varies factors like sensitivity of the individual victim concerned, the social back ground, the environment, education. Each case has to be decided on its own facts to decide whether the mental cruelty was established or not.

21.He also relied upon the decision reported in 2010 (1) Crimes 769 (Madras) (Murugesa Pandian and others v. State by Inspector of Police, Tirupur, Coimbatore District). It was held that after perusing the evidence of P.W.1 to P.W.4, it is clearly seen that many of the above said allegations have not been stated by them to the investigating officer at the time of the investigation and stated before the Court for the first time. Since the cruelty has not been proved, in the above case, the accused were acquitted for the offence under Section 498A IPC. But the above decision is not applicable to the facts of the present case.

22.Considering the facts and circumstances of the case, there is no reason for discarding the evidence of P.W.1 and P.W.4. Since the accused assaulted and abused the deceased in filthy language and dragged her on to his house, unable to bear the humiliation, the deceased committed suicide. So the trial Court considered all the aspects and came to the correct conclusion. I do not find any infirmity or illegality in the conviction under Section 498A IPC passed by the trial Court.

23.Learned counsel for the appellant submitted that the trial Court sentenced the accused to undergo 30 months rigorous imprisonment and imposed a fine of Rs.2,000/- and at the time of occurrence, he was aged about 32 years and he prayed for some leniency in his sentence and ready to pay compensation to P.W.1. Considering the age and family circumstances of the accused, this Court is inclined to reduce his sentence. On perusal of record, it shows that the accused was sentenced on 30.08.2005 and he was released on bail on 5.10.2005 and he was in the prison for nearly 35 days. Therefore, the period already undergone by the accused is treated as his sentence. Instead of imprisonment, the fine amount is enhanced from Rs.2,000/- to Rs.55,000/-, in default in payment, the accused is directed to undergo one year simple imprisonment. The fine amount of Rs.50,000/- is ordered to be paid as compensation to P.W.1, who is the mother of the deceased Jayakodi.

24.In fine,

The Criminal Appeal is partly allowed.

Judgment of conviction passed by the trial Court under Section 498A IPC is hereby confirmed. Sentence alone has been modified as follows:

(i) The period already undergone by the accused/appellant is treated as sentence of imprisonment;

and

(ii) Fine amount is enhanced from Rs.2,000/- to Rs.55,000/-, in default in payment, the appellant/accused is directed to undergo one year simple imprisonment

(iii) Out of the fine amount of Rs.55,000/-, a sum of Rs.50,000/- is ordered to be paid as compensation to the mother of the deceased Jayakodi viz., P.W.1.

Bail bond, if executed by the appellant/accused shall stand cancelled.

03.08.2012

Index:Yes

Internet:Yes

kj

R.MALA,J.

kj

To
1.Sessions Court, Mahila Court, Salem.

2.Inspector of Police
Thalaivasal Police station
Salem District.

3.The Public Prosecutor
High Court, Madras.

4.The Record Keeper
Criminal Section, High Court, Madras.

Pre-delivery judgment made in
Criminal Appeal No.791 of 2005

03.08.2012

wife dead, still dying declation can be rejected if tutored by relatives. Another Madras HC Gem

Notes

  • Unfortunate wife suffers 80% burn injuries
  • She is rushed to one hospital
  • then asked to go to another hospital and so on
  • at the earliest point of time when rushed to the first hospital she says (as per PW ) that her sari fell on the stove while cooking
  • later she changes her declarations
  • she says her husband poured kerosine on her and set her ablaze
  • she expires due to burn injuries
  • husband and family survive because the court rejects the woman’s dying declaration

Other thoughts

  • the dead woman’s mother accepts that her daughter was tutored by relatives !!
  • long live justice

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED:19/11/2012

CORAM
THE HONOURABLE MR.JUSTICE.M.JAICHANDREN
AND
THE HONOURABLE MR.JUSTICE.S.NAGAMUTHU

Crl.A(MD).No.599 of 2005

Kangani … Appellant

Vs

The State
rep.by the Sub-Inspector of Police,
Thathiyangarpettai Police Station,
Trichy District. … Respondent

This Criminal Appeal has been filed under Section 374(2) of the Criminal Procedure Code against the judgment of conviction and sentence imposed by the Additional Sessions Judge, Mahila Court, Trichy, dated 22.09.2005, in S.C.No.117 of 2004.

!For appellant … Mr.N.Anandakumar
^For Respondent… Mr.A.Ramar
Addl.Public Prosecutor
*******
:JUDGMENT

(Judgment of the Court was delivered by M.JAICHANDREN,J)

This Criminal Appeal has been preferred against the judgment, dated 22.09.2005, made in S.C.No.117 of 2004, on the file of Additional sessions Judge, Mahila Court, Tiruchirapalli, convicting the appellant, under Section 302 I.P.C., and sentencing him to undergo life imprisonment and to pay a fine of Rupees 1000/-, in default to undergo rigorous imprisonment for three months.

2. The brief facts of the case are as follows:-

2.1. The appellant, who is the first accused, in S.C.No.117 of 2004, had married the deceased, Vanaja, on 24.02.2002, at Uthandampatti Perumal Temple. At the time of the marriage, certain items like cot, bed and jewels, along with a sum of rupees 3,000/-, had been given to the appellant. After the said marriage, the appellant had been torturing the deceased, Vanaja, asking her to bring the money, which was lying in her bank account. However, the deceased had not brought the money. Therefore, at about 6.00 a.m, on 22.02.2003, when the deceased was sprinkling cowdung water in the cattle shed, the appellant had shouted at the deceased stating that she had not changed her ways, inspite of the advice given to her and that she was not fit to be his wife. While making the said statement, the first accused, the appellant in the present criminal appeal, had poured a bottle of kerosene on the deceased, Vanaja, and had set her on fire, with the intention of killing her. The second accused, namely, Navamani, the mother of the first accused, had also been charged, under Section 302 I.P.C., read with Section 34 I.P.C, for having been watching the acts of the first accused, without preventing him from acting in such a manner.

2.2. In order to prove the charges, seventeen witnesses had been examined on the side of the prosecution and nineteen documents had been marked, as exhibits. Eight material objects had also been marked. However, no witness had been examined and no document had been marked on behalf of the accused.

2.3. P.W.1, namely, Krishnaveni, the mother of the deceased, Vanaja, had stated, during her chief examination, that the deceased was her elder daughter. The marriage between her daughter, Vanaja, and Kangani had taken place, on 24.02.2002. At the time of the said marriage, a gold chain made of two sovereigns, a gold ring made of one sovereign, a ear stud and a nose stud had been given to the family of the bridegroom, along with certain other items of daily use, as dowry. The value of the said items would be about rupees 30,000/-. For about six months after the marriage, the family members of the first accused, namely, Kangani, had taken good care of her daughter, Vanaja. Thereafter, the members of the family of the first accused had been compelling Vanaja to bring more money, as dowry and therefore, there were misunderstandings between the two families. While so, on 22.02.2003, she had been informed, through telephone, that her daughter, Vanaja, had immolated herself. However, she did not know as to who had given her the said information. Thereafter, she had proceeded to the Thuraiyur Government Hospital, to see her daughter, along with the other family members.

2.4. P.W.1 had further stated that on reaching the hospital, she had noticed that her daughter had suffered burn injuries. Thereafter, her daughter, Vanaja, had been shifted to the Tiruchirapalli Government Hospital, where she was enquired by the police and a statement had been obtained from her. The statement made by Vanaja, to the police, had been reduced into writing, and it had been signed by her. The said Vanaja had also affixed her thumb impression, acknowledging the statement made by her, and it had been marked as Ex.P.1. Thereafter, the police had also made certain enquires with her. However, during the cross-examination, she had stated that she had visited the Thraiyur Government Hospital, to see her daughter, at about 9.00 a.m. She had gone to the hospital, along with her husband and her relatives. Her son-in-law, the appellant, and the other accused persons were also present in the hospital. When she had asked her daughter, as to how she had suffered the burn injuries, she could not reply. P.W.1 had further stated that she had made the statements to the police, as she had been told to do so, by her relatives. She had also stated that her daughter, Vanaja, had told her that she had made her statements, as instructed by her relatives. The relatives had also told her daughter that if she makes a statement saying that she had suffered the burn injuries due to an accidental fire, she would not be taken care of by her husband, properly. Therefore, she had made a statement to the police, as instructed by her relatives. P.W.1 had further stated that when her daughter, Vanaja, was enquired by the police, the duty Doctor was also present. She had further stated that the statements made by Vanaja, before the police, had also been signed by the duty doctor. She had further stated that she had made similar statements before the police, who had come to the Tiruchirapalli Government Hospital, after 1.00 p.m, on 22.02.2003. However, the police had not visited the Thuraiyur Government Hospital.

2.5. P.W.2, Sathya, had stated in her deposition that the deceased, Vanaja, was her brother’s daughter. She had stated that the marriage between the deceased and the appellant had taken place, on 24.02.2002. she had stated that she had been informed that the deceased, Vanaja, had set herself on fire. Therefore, she, along with her family members, had gone to the Thuraiyur Police Station. She had further stated that the deceased, Vanaja, had given statements before the police, as well as the Magistrate concerned. However, during her cross- examination, she had stated that she was not present at the time when Vanaja had given her statements to the police and the magistrate. She had further stated that, when an enquiry was being made with the deceased, she was standing outside the room and therefore, she did not know the statements made by the deceased.

2.6. P.W.3, Sambamoorthy, who is the Village Administrative Officer of Vadamalaipatti Village, at the time of the occurrence, had stated in his evidence that he had come to know that one Vanaja, wife of Kangani, had been admitted in the Thuraiyur government hospital, due to a fire accident. He had further stated that, when he was at the place of occurrence, on 22.02.2003, the Inspector of Police of Thathaiyangar Petai Police Station had visited the place, at night, at about 12.15 a.m., and had prepared the observation mahazar, which had been marked as Ex.P.2. He had signed the said mahazar, along with his assistant, Jaganathan. On 23.02.2003, at 9.15 a.m., he had signed the mahazar containing the recovery of the material objects, along with his village assistant Jaganathan.

2.7. Venkatesh, who had been examined as P.W.4, had stated, in his deposition, that he was on duty, on 22.02.2003, at 8.30 a.m., and at that time, one Vanaja had been brought to the hospital, for treatment, with burn injuries. She had stated that she had suffered the burn injuries, at 6.00 a.m., as her saree had caught fire, as it has fallen on the stove. He had also stated that she was in a conscious state of mind, even though she had suffered about 80% burn injures. He had also stated that the said Vanja had been referred to the Tiruchirapalli Government Hospital. The copy of the accident register had been marked as Ex.P.4. The information given to the Thuraiyur Police Station, by way of a letter, had been marked as Ex.P.5.

2.8. P.W.5, Dr.Renuka Devi, had submitted the autopsy report, marked as Ex.P-7, wherein, it had been stated that the deceased, Vanaja, had died due to the burn wounds and its complications. P.Ws.6 to 10 are official witnesses. P.W.12, was the Judicial Magistrate No.2, Tiruchirapalli, who had recorded the dying declaration of the deceased, marked as Ex.P-14. Dr.P.Prabaharan, who had been examined as P.W.13, had certified that the deceased, Vanaja, was in conscious and fit state of mind to make her statements, when she had made the statements to the Judicial Magistrate concerned. P.W.14, is the Sub Inspector of Police, Thathiengarpet Police Station, who had received the complaint from the deceased, Vanaja, and had registered the case in CrimeNo.76 of 2003, marked as Ex.P-1. He had also prepared the first information report, marked as Ex.P-17. Based on the first information report registered by P.W.14, the Inspector of Police, Chinnathambi, examined as P.W.15, had taken up the case for further investigation. The case registered by P.W.14 had been altered and a case had been registered under Section 498A, 304B and 302 I.P.C., on the death of the deceased at Tiruchirapalli government hospital. Thereafter, P.W.16 had taken up the matter for investigation. P.W.17, is the police officer who had continued the investigation after the transfer of P.W.16.

2.9. When the incriminating evidence available on record had been put to the accused under Section 313 Cr.P.C, the accused had denied their involvement in the commission of the crime and they had pleaded that they were innocent. Based on the evidence available, the trial Court had convicted the accused, Kangani, the appellant in the present criminal appeal for the offence under Section 302 I.P.C., for causing the death of his wife, Vanaja.

3. The main contention of the learned counsel appearing on behalf of the appellant is that the deceased, Vanaja, had given her statements to the police, when she had been admitted in the Tiruchirapalli government hospital, as tutored by her relatives. This is clear from the statements made by P.W.1, the mother of the deceased, Vanaja, during her cross examination. Therefore, the conviction of the appellant, by the trial Court, under Section 302 I.P.C, cannot be sustained, especially, when the dying declaration made by the deceased cannot be held to be valid in the eye of law, as it had not been corroborated by the other evidence available on record.

4. The learned counsel had further contended that the deceased, Vanaja, had stated in her statement made before P.W.4, who is a Doctor, while she was in a conscious state of mind, that she had suffered the burn injuries as her saree had caught fire, accidentally, as it had fallen on the stove. The learned counsel had further submitted that the appellant had taken the deceased to the hospital, immediately, after the fire accident had occurred. Further, the prosecution had not examined the neighbours of the deceased, who had come to her rescue, on hearing her cries. As such, it is clear that the case of the prosecution had not been proved beyond reasonable doubt. Therefore, the conviction of the appellant, by the trial Court, by its judgment, dated 22.9.2005, made in S.C.No.117 of 2004, cannot be held to be valid in the eye of law and therefore, it is liable to be set aside.

5. Per contra, the learned Additional Public Prosecutor, appearing on behalf of the respondent, had stated that it is clear from the dying declaration of the deceased, Vanaja, that her husband, namely, Kangani, the accused, had poured kerosene on the deceased and had set her on fire, at about 6.00 a.m, on 22.2.2003, causing the death of the deceased. He had further stated that, from Exhibits P-14 to P-16 it could be seen that the deceased, Vanaja, was in a fit, conscious and capable state of mind, while making a statement that her husband, Kangani, had set her on fire, by pouring a bottle of kerosene on her, when her mother-in-law was sweeping in front of the house. She had further stated that her husband had left the scene of occurrence after setting her on fire. She had also stated that she had raised an alarm on being set on fire by her husband, the appellant in the present criminal appeal. On hearing the alarm raised by the deceased, Nagarajan, the elder brother of Kangani and certain others, who were present near the scene of occurrence, had come to the place of occurrence and had doused the fire by pouring water on the deceased. Thereafter, her husband, Kangani, his sister and sister-in-law, had taken the deceased to the hospital. It is clear from Ex.P-7, the post mortem report, that the deceased had died of the burn wounds and its complications. It is also clear from the dying declaration made by the deceased, marked as Ex.P-14, that it is her husband, namely, Kangani, the accused in the criminal case, who had set her on fire, by pouring a bottle of kerosene on her. As such, the contentions raised on behalf of the appellant that the deceased had not died due to the burn injuries caused by the appellant cannot be countenanced. In such circumstances, the accused, Kangani, the appellant/accused herein, had poured a bottle of kerosene on the deceased, on 22.02.2003 and set her on fire, with a clear intention of committing murder. As such, the judgment of the trial Court, dated 22.09.2005, convicting and sentencing the accused, under Section 302 I.P.C., is valid and sustainable in the eye of law. Therefore, the present criminal appeal is liable to be dismissed.

6. In view of the rival contentions raised on behalf of the appellant, as well as the respondent, and on a perusal of the records available, it could be noted that the deceased, Vanaja, had died, on 24.02.2003, due to burn injuries. In this case, there is no eye witness to the occurrence. The prosecution relies only on the dying declarations made by the deceased, on three different occasions. The alleged occurrence, in the present case, is said to have taken place at 6.00 a.m., on 22.2.2003. Immediately, after the occurrence, the accused had taken the deceased to the hospital for treatment. P.W.4, Dr.Venkatesh, had attended to the deceased, at 8.30 a.m. At that time, the deceased was conscious. She had told P.W.4 that, while she was cooking, her saree had come into contact with the flame in the stove and thus, she had sustained the burn injuries. This is the first dying declaration made by the deceased. It is the case of the prosecution that this dying declaration cannot be believed as the deceased had made the statement when the accused was by the side of the deceased.

7. It is further noted that, on intimation from the hospital, P.W.14, the then Sub Inspector of Police, attached to Thathiengarpet Police Station, went to the Thuraiyur government hospital and on receipt of the information that she had been shifted to Tiruchy government hospital, he had gone there and recorded the statement of the deceased, under Ex.P-1. The statement of the deceased had been recorded, at 6.00 p.m., on 22.2.2003. At that time, the mother of the deceased was by her side. In the said dying declaration she has stated that the accused had set fire to her, out of anger. It is the contention of the learned counsel for the accused that this dying declaration cannot be given any weightage for the reason that the P.W.1, the mother of the deceased, had stated that the deceased had told her that she had given the statement implicating the accused, as tutored by her relatives.

8. The next dying declaration is the one recorded by P.W.12, the then Judicial Magistrate No.II, Tiruchirapalli. He had recorded the dying declaration, at 1.45 p.m, on 22.2.2003, under Ex.P-14. Even under Ex.P-14 she has stated that it was the accused who had poured the kerosene and had set her on fire. It is the contention of the learned counsel for the appellant that even this dying declaration cannot be believed for the reason that the deceased had been tutored by her relatives to implicate the accused.

9. It is well settled in law that when there are multiple dying declarations from the deceased, in general, the dying declaration which is found to be free from tutoring should be given weightage. If any of the dying declarations made by the deceased is surrounded by suspicion of tutoring, then the same needs to be rejected. In this case, when the deceased had been rushed to the hospital, at the earliest point time, she had stated that her saree had caught fire, accidentally, while cooking. This dying declaration, in our considered view, deserves acceptance. The contention of the learned Additional Public Prosecutor that the deceased had made such a dying declaration as the accused was by the side of the deceased deserves to be rejected because of the reason that even in the other two subsequent dying declarations the deceased had not stated that she had made such a statement in the earlier dying declaration that her saree had fire, accidentally, while cooking, either because of the presence of her husband or because she had been tutored by him. Further, P.W.1 has clearly stated, during the cross examination, that when she had gone to the hospital, she had found the accused by the side of the deceased and that he was grieving. She has further stated that when she had enquired with the deceased as to how she had sustained the injuries, she was not in a position to say anything. Later, she had told her that she had given the statement to the police, as instructed by her relatives. Thus, it could be noted that the subsequent dying declarations are not free from tutoring. Therefore, much weightage cannot be given to the subsequent dying declarations made to the police, as well as the Judicial Magistrate, as it cannot be safely held that they are free from tutoring. When these two dying declarations cannot believed, necessarily, weightage has to be given to the earliest dying declaration made to the Doctor, in which the deceased had stated that she had sustained the injuries, accidentally, while she was cooking. Thus, in our considered view, the prosecution has failed to prove that the accused had poured kerosene and had set fire to the deceased. Accordingly, we hold that the prosecution has failed to prove the charge against the accused beyond reasonable doubts.

10. In the result, this criminal appeal is allowed. The conviction and sentence imposed on the appellant is set aside and he is acquitted of all the charges. The bail bond, if any, executed by him, shall stand cancelled and the fine amount, if any, paid by him, shall be repaid to him.

ssm/csh

To

(i) The Additional Sessions Judge, Trichy,

(ii)The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

Bangalore Teen files false rape case to avoid answering hostel authorities !! 3 Mens’ life messed up

Teen feared the wrath of hostel authorities

19-yr-old’s gang-rape tale puts three friends in a big spot of bother

The girl’s call records gave her game away. Police sources vouch for the innocence of the trio and blame the ‘victim’ for putting them through this ordeal

Posted On Saturday, June 01, 2013 at 11:16:57 AM

On Sunday, April 21, Sapna George (name changed), a 19-year-old student of St John’s College of Nursing on Sarjapur Road, landed up at her hostel at 7.15 pm, way beyond the curfew time. She was tipsy and had a gash on her forehead. Her demeanour worried hostel authorities, including the warden, and fellow mates.

She seemed to have gone through a harrowing day. After little persuasion, she told her story: She was at St Philomena’s bus stop at 8.50 am when three people in a white Scorpio asked her for direction to ‘some place’, and while she was helping them out she was dragged into the SUV. Fnext several hours on that day, she was assaulted, made to drink alcohol and sexually abused, Sapna told her listeners.

It was at 6.45 pm, she said, that she was dropped in front of St John’s Medical College and Hospital, and from where she trudged to the hostel, a stone’s throw away.

The warden and the others immediately informed Ashoknagar police and an FIR was registered. The police — spurred by the Delhi gang-rape, the public outrage after that, and the subsequent Supreme Court zero-tolerance approach — swung into action.

Tracing Sapna’s cellphone calls they tracked down three men, all 25 years of age and known to the victim. They were put behind bars on April 25.

Now, police say Sapna’s story has been fabricated. As a result, three of her friends are languishing in jail, and can be released only through the court as FIR has been registered. Bangalore Mirror is not naming the three youths, as the police sources vouch for their innocence and blame the girl for putting them through this ordeal.

“As of now I can say that when we started investigating the case, we found that the three accused and the victim were known to each other. I cannot give you any other details about this as the matter is being further investigated and we will file all the findings in court,” deputy commissioner of police (Central) Ravikanthe Gowda told BM.

Ashoknagar police are waiting for the forensic report of the tests conducted on the girl before they file the charge sheet that will include all the findings, including the call records, a police source said.

source
http://bangaloremirror.com/article/1/201306012013060111181680956562cae/19yrold%E2%80%99s-gangrape-tale-puts-three-friends-in-a-big-spot-of-bother.html