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2008 DIGILAW 2394 (MAD)

V. Giridhar v. State by the Inspector of Police

2008-07-11

T.SUDANTHIRAM

body2008
Judgment :- 1. The Revision-petitioner who stands as first Accused in S.C.No.582/2002 on the file of the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Chengalpattu was convicted for an offence under Sec.306 I.P.C. and sentenced to undergo 7 years R.I. and to pay fine of Rs.1000/- in default to undergo 3 months R.I. and in the appeal preferred by him before the Principal District Court, Chengalpattu in C.A.N.27/2005, conviction under Sec.306 I.P.C. was confirmed, but the sentence of imprisonment was reduced to 2 years and in addition he was also convicted under Sec.498-A I.P.C. and sentenced to undergo 2 years R.I. and to pay fine of Rs.500/-in default to undergo 1 month S.I. 2. Aggrieved by the said conviction and sentence, Revision-petitioner has preferred this Revision. 3. The case of the prosecution in brief is that the first accused/Revision-petitioner married the deceased Jothi on 25. 1996 and they were living at Perungalathur along with 2nd and 3rd accused who are respectively brother and mother of the first accused. On 16. 1997, deceased gave birth to a male child and three months after the date of delivery she left with the child to the house of the accused. During 1998 one day P.W.1 went to the house of the accused. At that time 3rd accused asked P.W.1 that his house which is situated at West-Mambalam should be settled in the name of the first accused. P.W.1 informed the third accused that house could be written in the name of first accused only after his and his wifes life time. Thereafter, accused harassed the deceased. Seven days after the delivery of child, while deceased was in the house of P.W.1, at about 5.00 A.M., first accused pressed calling bell and the deceased opened the door. After the door was opened, first accused slapped on the cheek of the deceased stating that he could not buy things which the deceased asked for. On 012. 1998, first accused came to the house of P.W.1 and enquired about his wife. In the mean time, she had also arrived there and she told P.W.2, her mother that there was a dispute amongst them. During 1999 October, first accused started Vivekanandha Trust in the same street where they were residing and the money earned by him through the Trust was not spent to the deceased for the purpose of medical expenses. On 14. During 1999 October, first accused started Vivekanandha Trust in the same street where they were residing and the money earned by him through the Trust was not spent to the deceased for the purpose of medical expenses. On 14. 2000 at about 10.15 A.M. the deceased herself committed suicide by hanging in the bed room. Second accused informed this to P.W.2 over telephone. 4. P.W.1 lodged Ex.P1 complaint and P.W.14 Inspector of police registered the case in Crime No.96/2000 under Sec.174 (3) Cr.P.C. and prepared Ex.P19 F.I.R. and the same was forwarded to the Revenue Divisional Officer, P.W.12. P.W.12 Revenue Divisional Officer has conducted inquest and examined the witnesses and also the accused and prepared Ex.P18 inquest report. P.W.17 the Deputy Superintendent of Police took up investigation and examined the witnesses and recorded their statements. After completing the investigation, P.W.17 laid final report against the accused under Sec.498-A and 306 I.P.C. 5. The trial court after considering the evidence acquitted all the accused from the offence under Sec.498-A I.P.C. and convicted them under Sec.306 I.P.C. But in the appeal preferred by them, appellate court acquitted the 2nd and 3rd accused. Conviction of the first accused under Sec.306 I.P.C. was confirmed and in addition he was also convicted under Sec.498-A I.P.C. 6. The learned counsel for the Revision-petitioner has submitted that though the trial court found that no offence had been made out under Sec.498-A I.P.C., the appellate court which had no power, had erroneously convicted the Revision-petitioner/first Accused for the offence under Sec.498-A I.P.C. also. The learned counsel for the Revision-petitioner further submitted that even as per the evidence available, there is no material to attract the ingredients for the offence under Sec.498-A and 306 I.P.C. P.W.12, Revenue Divisional Officer on enquiry had submitted a report that there was no dowry demand. Appellate court also having acquitted the 2nd and 3rd accused erred in convicting the first accused-husband alone. The learned counsel for the Revision-petitioner has pointed out that the evidence of P.Ws.1 and 2, father and mother of the deceased is contra to their earlier version in Exs.P8 and P9 given before the Tahsildar. The evidence of P.Ws.1 and 2 are belated developed versions. As per Exs.P8 and P9, P.Ws.1 and 2 have spoken about only a few stray instances and as per Exs.P8 and P9, there was no cruelty to the deceased. The evidence of P.Ws.1 and 2 are belated developed versions. As per Exs.P8 and P9, P.Ws.1 and 2 have spoken about only a few stray instances and as per Exs.P8 and P9, there was no cruelty to the deceased. The learned counsel for the Revision-petitioner further pointed out that the accused had also been examined by P.W.12 and even at the earlier stage, first accused had given a statement, according to which there had been domestic quarrel between husband and wife prior to the occurrence. 7. The learned Government Advocate (Criminal Side) has submitted that though there was no dowry demand, there had been harassment to the deceased and it is spoken to by P.Ws.1 and 2. The learned Government Advocate (Criminal Side) has further pointed out since the deceased died within 7 years from the date of marriage, presumption under Sec.113-A of Indian Evidence Act is available. 8. This court considered the submissions made by both sides and perused the Judgment of the courts below and other records. 9. The deceased had committed suicide on 14. 2000. As far as P.Ws.1 and 2 are concerned, last incident which they have quoted relates to the date on 012. 1998. On that day, first accused came to their house with child and enquired about the deceased. In the mean time, deceased had also come there and she informed that there was a dispute and quarrel between husband and wife with regard to taking care of child. Though, she expressed that she is not willing to live with her husband, she was pacified and after two days, first accused had taken the deceased to his house. 10. P.Ws.1 and 2 have not made any allegation against the accused from that date to the date of occurrence. It is only stated that in the year 1999 October, first accused started a Trust in the same street and he was earning some amount from the Trust. But he was not spending the money earned from the Trust for the deceased. At the same time, P.W.1 has stated that both husband and wife used to come to their house and go. As such P.Ws.1 and 2 did not make any serious allegation against the accused prior to the deceased committing suicide. Even prior to that only one incident had been quoted in the year 1998 that first accused slapped on the face of the deceased. As such P.Ws.1 and 2 did not make any serious allegation against the accused prior to the deceased committing suicide. Even prior to that only one incident had been quoted in the year 1998 that first accused slapped on the face of the deceased. Though the allegation made that the 3rd accused demanded house of P.W.1 should be written in the name of the first accused, it is stated by P.W.1 himself that he had informed that he would do it only after the life time of himself and his wife. Even the demand for the house was not made by the first accused. It all appears from the evidence of P.Ws.1 and 2 that there had been some domestic quarrel between husband and wife. 11. In Exs.P8 and P9, statements recorded by P.W.12 from P.Ws.1 and 2 even they have not stated anything about the quarrel between husband and wife in the year 1999 or in the year 2000. It is the specific report of P.W.12 that there was no unlawful demand. At the same time, P.W.12 also examined the accused and recorded his statement. P.W.12, Revenue Divisional Officer had also examined the other witnesses. First accused has given a statement to P.W.12 that he was paying the rent of Rs.300/-to Ramakrishna Mutt and when the deceased asked saree worth about Rs.300/-, he gave Rs.150/- only. On the date of occurrence, she quarreled with regard to not paying money to her, but spending for other expenses. During the quarrel, she threw her hand bag and thereafter, she went to the bed room in the upstairs. Later, he came to know that she hanged herself. Second accused also given statement corroborating the versions of first accused. He also stated that on the date of occurrence, during quarrel first accused had beat the deceased. 12. From the evidence available in total, it appears that there had been some quarrel between husband and wife on the date of occurrence and prior to that, no evidence is available to show that the deceased was ill-treated or cruelty was done to her. 13. 12. From the evidence available in total, it appears that there had been some quarrel between husband and wife on the date of occurrence and prior to that, no evidence is available to show that the deceased was ill-treated or cruelty was done to her. 13. The word cruelty has been explained in Sec.498-A I.P.C. as follows:- Explanation:- For the purpose of this section, cruelty means:- .(a) any wilful 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 to meet such demand. Trial court has concluded that no evidence was let in for the offence under Sec.498-A I.P.C. According to the trial court there was no unlawful demand by the accused and also there was no evidence to prove cruelty. But at the same time, trial court convicted the accused based on the presumption available under Sec.113-A of Indian Evidence Act. 14. Sec.113-A of Indian Evidence Act reads as follows:- Presumption as to abetment of suicide by a married woman:- "When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband." 15. As per Sec.113-A of Indian Evidence Act, it is only stated that the court may presume having regard to all other circumstances of the case. Therefore, it is not always necessary to make presumption, and such presumption could be drawn only if evidence is available with regard to all other circumstances. Initial burden is on the prosecution. As per Sec.113-A of Indian Evidence Act, it is only stated that the court may presume having regard to all other circumstances of the case. Therefore, it is not always necessary to make presumption, and such presumption could be drawn only if evidence is available with regard to all other circumstances. Initial burden is on the prosecution. If the circumstances available in the case are not pointed out against the accused, then presumption cannot be drawn. The Court has power to appraise the evidence and conclude whether there was some extraneous reasons for wife to commit suicide. As such conviction of the accused for abetment of suicide merely on the basis of presumption without sufficient material cannot be sustained. 16. In this case, appellate court had also made erroneous approach and convicted the first accused under Sec.498-A I.P.C. Trial court having acquitted the accused from the charge under Sec.498-A I.P.C., the appellate court, as per the powers available under Sec.386 of Cr.P.C., cannot reverse the finding of acquittal and convict the accused. Therefore, the conviction imposed by the appellate court under Sec.498-A I.P.C. is set aside. As it is found that there is no material to attract the ingredients under Sec.306 I.P.C., the conviction and sentence imposed on the first accused/Revision-petitioner is also set aside. 17. In the result, Judgment of the appellate court in C.A.No.27/2005 dated 210. 2005 on the file of the Principal Sessions Judge, Chengalpattu is set aside and this Revision is allowed. Fine amount if any paid by the Revision-petitioner is ordered to be refunded to him. Consequently, connected Crl.M.P.No.8652/2005 is closed.