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2003 DIGILAW 1024 (MAD)

Rahamathulla v. State by Inspector of Police

2003-07-10

M.CHOCKALINGAM

body2003
Judgment :- The appellant who was ranked as A-1 along with 2 others and who stood charged under S.4 of the Dowry Prohibition Act, Ss 498-A and 304-B of I.P.C. and found guilty under Ss 498-A and 304-B of I.P.C. and sentenced to undergo 2 years R.I. and to pay a fine of Rs.10,000/-, in default, to undergo 1 year S.I. and 7 years R.I. respectively has brought forth this appeal. 2. The short facts necessary for the disposal of this appeal can be stated thus: (a) The victim Rajumma @ Rajunnisha, the daughter of P.W.1 Sathakkathullah and P.W.4 Immarammal, was married by A-1, the son of A-2 and A-3 on 13.2.1998 in accordance with the customs and rites among Mohammedans. At the time of marriage, Rajumma was 23 years old. P.W.5 Sathique and P.W.6 Sumaiah were the brother and sister of the deceased respectively. At the time of marriage 15 sovereigns of gold jewels and Rs.15,000/- cash were given as dowry. They were living happily for a short-while. Thereafter, A-1 began to demand dowry. In the year 1999, they had a male child. Thereafter, a separate family was set up by A-1 and the deceased at Door No.106, Asanbhava Big Shop Lane, Tiruppur, while P.W.1 and his family were living in Door No.123 in the same Street. After the separate family was set up, A-1 continued to demand dowry from the deceased for purchasing a gas stove, and in turn, the demand was made to P.W.1, and he met the demand by giving Rs.4,500/-. After the birth of the second child, there was a demand for jewels, and there were intermittent demands by A-1 at the instigation of A-2 and A-3. On 13.7.2000, P.W.6 the younger sister of the deceased, when she came back from her School, met the deceased, by which time the deceased was weeping. P.W.6 came home and informed the same to her parents. P.W.1 and others came to know at about 1.30 P.M. that his daughter has committed suicide in the house where she was living with A-1. P.W.1 and others went there and found herself hanging by using M.Os.1 and 2. They took the victim to Veeramani Hospital, where the Doctor declared her dead. Then, they brought the dead body of the deceased to the Government Hospital, Tiruppur. P.W.1 entertained a suspicion whether there was some foul-play in the death of his daughter. P.W.1 and others went there and found herself hanging by using M.Os.1 and 2. They took the victim to Veeramani Hospital, where the Doctor declared her dead. Then, they brought the dead body of the deceased to the Government Hospital, Tiruppur. P.W.1 entertained a suspicion whether there was some foul-play in the death of his daughter. He lodged a complaint before Tiruppur Police Station under Ex.P1 at about 11.15 P.M. on the same day. On the strength of Ex.P1, P.W.10 Sukumaran, Sub Inspector of Police, Tiruppur South Police Station, registered a case in Crime No.648/2000 under S.304(B) of I.P.C. Ex.P6 printed F.I.R. was despatched to the concerned Magistrate's Court, while the copies were sent to the higher officials. (b) P.W.9 Pankajkumar Bansal, Revenue Divisional Officer (R.D.O.) received a copy of the same, went to the place of occurrence and enquired the witnesses. He proceeded to the Government Hospital, Tiruppur, conducted an inquest on the body of the deceased, examined P.Ws.1 and 4 to 6 and other witnesses and recorded their statements. He prepared a report under Ex.P5. He made a request to P.W.2 Dr.Selvanayaki and P.W.3 Dr.Ravichandran to conduct postmortem. Accordingly, the autopsy was conducted by P.W.2 assisted by P.W.3. The doctors found the following injuries. 1. A diffuse Rope Mark seen running obliquely from the left side to the right side with knot mark seen 2" below the right ear. On c/s. the underlying tissues are contused. P.Ws.2 and 3 gave Ex.P2 postmortem certificate opining that the death could have occurred due to asphyxia due to hanging. (c) P.W.11 K.Rangarajan, Deputy Superintendent of Police, Avinasi on receipt of the copy of the F.I.R. on 14.7.2000, took up the investigation, proceeded to the place of occurrence and prepared Ex.P3 observation mahazar in the presence of P.W.8 Haniffa and one Sirajudin and Ex.P7 rough sketch. He also made recoveries from the occurrence place M.Os.1 and 2 under Ex.P4 mahazar in the presence of the same witnesses. He examined P.Ws.4, 5, 7 and 7 and other witnesses and recorded their statements. P.W.11 arrested all the accused on 15.7.2000 and sent them to the Judicial Magistrate No.II, Tiruppur for judicial custody. M.Os.1 and 2 were produced before the concerned Magistrate's Court under Form 95. P.W.12 K.Joshi Nirmal Kumar who succeeded to the Office of P.W.11, took up further investigation, examined P.Ws.2 and 3 Doctors and recorded their statements. P.W.11 arrested all the accused on 15.7.2000 and sent them to the Judicial Magistrate No.II, Tiruppur for judicial custody. M.Os.1 and 2 were produced before the concerned Magistrate's Court under Form 95. P.W.12 K.Joshi Nirmal Kumar who succeeded to the Office of P.W.11, took up further investigation, examined P.Ws.2 and 3 Doctors and recorded their statements. On completion of the investigation, he filed a charge sheet against the accused. 3. In order to prove the charges levelled against the accused, the prosecution examined 12 witnesses and marked 7 exhibits and 2 material objects. After the evidence on the side of the prosecution was over, the accused were questioned under S.313 of Cr.P.C. as to the incriminating materials found in the evidence of the prosecution witnesses. On the side of the accused, 3 witnesses were examined and 5 exhibits were marked. After considering the rival submissions and scrutiny of the materials available, the trial Court found the appellant/A-1 guilty under Ss 498-A and 304-B of I.P.C. and sentenced him to undergo the imprisonment as referred to above, while A-2 and A-3 were acquitted of the charges against them. Hence, the appeal is brought forth by the appellant/A-1. 4. The learned Counsel, arguing for the appellant/A-1, with vigour and vehemence made the following submissions. The prosecution has miserably failed to prove the ingredients of either the offence of dowry harassment or the offence of dowry death, as required under the provisions of Penal Code. No evidence was put forth by the prosecution to prove that either there was any dowry demand or any incident has taken place soon before the alleged death of Rajumma. There was no evidence as to the cruelty as found in the charge against the appellant. All the witnesses examined by the prosecution were close relations of the victim. The independent witnesses, though examined by the police official under S.161 of Cr.P.C. and statements were recorded, were not examined by the prosecution. According to the prosecution, the occurrence has taken place in the night hours, but the complaint was given by 11.15 P.M. No acceptable explanation was tendered by the prosecution. Thus, the delay was fatal to the prosecution case. According to the prosecution, there was a demand for purchase of a gas stove. But, by documentary evidence, the defence has proved that even prior to 1997 before the marriage, the gas stove was purchased by the accused. Thus, the delay was fatal to the prosecution case. According to the prosecution, there was a demand for purchase of a gas stove. But, by documentary evidence, the defence has proved that even prior to 1997 before the marriage, the gas stove was purchased by the accused. The Sub Collector, who conducted the enquiry the very next day has signed the report only on 6.9.2000, and thus, there was a huge delay. The said delay was not explained. There were alterations and over-writings found in the postmortem report. The prosecution made its attempt to introduce a document calling as a suicidal note which was rightly rejected by the lower Court. The place of occurrence, as stated by the prosecution, has not been clearly proved. There could not have been any demand for dowry since all the jewels worn by the victim were returned to them, after her death to the prosecution witnesses, which fact is well admitted by them. There is evidence to show that they were leading a happy matrimonial life before the incident, and they were living separately also. There could not have been any occasion for demand of dowry or harassment, which led her to commit suicide. Thus, in the absence of any evidence and in view of all the above facts and circumstances of the case, the lower Court should have outrightly rejected the case of the prosecution. 5. Added further the learned Counsel that on the same evidence, the lower Court has acquitted A-2 and A-3, but has surprisingly convicted A-1, and hence, if view of the application of the same evidence, the appellant/A-1 should have been acquitted, and therefore, it is a fit case for acquittal, and the appeal has got to be allowed. 6. 5. Added further the learned Counsel that on the same evidence, the lower Court has acquitted A-2 and A-3, but has surprisingly convicted A-1, and hence, if view of the application of the same evidence, the appellant/A-1 should have been acquitted, and therefore, it is a fit case for acquittal, and the appeal has got to be allowed. 6. Strongly opposing the contentions of the appellant's side, the learned Government Advocate (Criminal Side) would submit that the dowry demand made on the victim has been clearly spoken to by P.Ws.1, 4, 5 and 6; that admittedly, at the time of marriage, jewels were given; that the dowry demand by A-1 began immediately after the birth of the first child; that they had the separate living, and the second child was also born; that there was an occasion when the demand of A-1 was met by payment of Rs.4,500/-; that this fact has been clearly spoken to by P.Ws.1 and 4; that the R.D.O., who conducted enquiry, has given a clear report after examination of the witnesses necessary and panchayatars also stating that it was a dowry death, and she was harassed; that the first accused examined himself as D.W.3, but nowhere has he denied the prosecution case stating that there was no dowry harassment or cruelty or dowry death; that it is true that there was some delay in lodging the complaint, but the said delay has occasioned during the natural course of events; that the parents of the deceased coming to know about the same, proceeded to the place of her house, found her hanging and took her to Veeramani Hospital, where she was declared dead, and thereafter the dead body of Rajumma was taken to the Government Hospital, and only therefrom, they went to lodge a complaint, and the said delay, in view of the available evidence, cannot in any way affect the prosecution case; that it is true that no independent witness was examined by the prosecution; that in the instant case of dowry harassment and dowry death, the material witnesses, to whom the demands were made, have been examined and they have spoken in clear terms of the prosecution case, and thus, the prosecution has proved the case beyond all reasonable doubts, and hence, the judgment of the lower Court has got to be sustained. 7. 7. This Court paid its full attention on the rival submissions made and made a close scrutiny of all the available materials, which led the irresistible conclusion that the appeal carries no merits. 8. Admittedly, Rajumma @ Rajunnisha aged 23 years was given in marriage to the appellant/A-1 on 13.2.1998 according to Muslim customary practices. It is also admitted by the appellant as D.W.3 that jewels were given at the time of the marriage. They had two children one born in 1999 and the other in 2000, and they had set up a separate living, after the birth of the first child. P.W.1, the father and P.W.4, the mother along with two other witnesses in their family have categorically spoken to the fact that there was demand of dowry then and there by A-1. There was an occasion, when P.W.1 has made a payment of Rs.4,500/- pursuant to the demand made by A-1 and in turn by the deceased on P.W.1 father. According to P.W.1, after the birth of the second child, A-1 was demanding for jewels, which in turn the deceased was making over him, and he was assuring that he would be meeting the same after sometime. The evidence of P.W.1, despite full cross examination, as to the dowry demand is in tact and not affected in any way. The Court is unable to see any circumstance or reason why their evidence should be disbelieved or seen with suspicion. At this juncture, it remains to be stated that A-1 who was facing a trial for dowry harassment and dowry death of his wife, though examined himself as D.W.3, has not uttered a single word that he did not do anything of that sort. As a responsible husband, A-1 is expected to give a statement under what circumstances and reasons his wife committed suicide. It is not his case that she was insane or unsound. But, they were living happily. It is true that committing of suicide may be due to number of reasons. But, what led her to commit suicide, under the stated circumstances, has got to be necessarily explained by him. The Court is of the considered view that the explanation tendered by the appellant has to be looked into from the available evidence as narrated above. It is true that committing of suicide may be due to number of reasons. But, what led her to commit suicide, under the stated circumstances, has got to be necessarily explained by him. The Court is of the considered view that the explanation tendered by the appellant has to be looked into from the available evidence as narrated above. The explanation tendered by the accused that after the birth of the second child, at the instance of his wife's mother, she was fixed with copper tea, which developed some pain, and due to that, she could not tolerate, and thus, she committed suicide is too flimsy a reason to be accepted. 9. In the instant case, the R.D.O. who received the copy of the F.I.R. as to the death of the victim, has proceeded to the spot, made an enquiry procedurally, recorded the statements of the panchayatars and other witnesses and gave a detailed report, wherein he has stated that it was only due to the dowry harassment, she has committed suicide. It is true that no independent witness has been examined. In a case like this, where there was dowry demand and cruelty to a spouse, and consequently, she has committed suicide, and the necessary material facts could be spoken well by her parents, who have been examined as P.Ws.1 and 4, any number of independent witnesses, if examined, cannot speak effectively to the facts that took place in the family life of the spouses. Even if they are examined, their evidence cannot be given much weight as to that of the witnesses like parents of the victim. The Court is able to notice some delay in lodging the complaint, since the occurrence has taken place at 1.00 A.M. and the complaint has been given by 11.15 P.M., and after that, a case was registered by P.W.10 Sub Inspector of Police. But, the Court has to point out that after receiving the information, P.Ws.1 and 4 proceeded to the house of the victim, took her to Veeramani Hospital, where she was declared dead, and from there, they took the dead body of Rajumma to the Government Hospital, which consumed considerable time, and hence, the explanation given by the prosecution that the delay has taken place in the ordinary course of events has got to be accepted. That apart, even assuming that there is a delay, that delay is neither inordinate, nor it has given way to any embellishment in the prosecution case. 10. It is a fact not disputed that the victim died due to hanging, and the same is spoken to by the postmortem Doctor along with the certificate. It is pertinent to note that she has committed suicide within 7 years from the date of her marriage, and hence, the lower Court was perfectly correct in finding on the evidence available that the appellant/A-1 subjected the victim to cruelty; that soon before her death, she was subjected to cruelty and harassment by her husband, the appellant; and that the appellant/A-1 was responsible for the victim committing suicide. The lower Court convicted the appellant/A-1 under Ss 498-A and 304-B of the Indian Penal Code and sentenced him to undergo R.I. for 2 years along with a fine of Rs.10,000/- and in default of payment of fine, he shall undergo 1 year S.I. under S.498-A of I.P.C. and awarded minimum punishment of 7 years R.I. under S.304-B of I.P.C. The Court is of the considered view that there is nothing to interfere either in the conviction or the sentence passed by the Court below. 11. For what has been stated above, this Court finds no merit in the appeal. Accordingly, it is dismissed.