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2015 DIGILAW 2794 (MAD)

Ganesan v. State

2015-08-13

S.NAGAMUTHU, V.S.RAVI

body2015
Judgment S. Nagamuthu, J. 1. The appellant is the sole accused in S.C. No.90 of 2011 on the file of the Additional Sessions Judge, (Mahila Court), Pudukottai. He stood charged for offences under Sections 498(A) and 304(B) IPC, in the alternative under Section 302 IPC. By judgment dated 23.03.2015, the trial Court convicted the appellant under Sections 498(A) and 498(A) IPC and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one year and for the offence under Section 304(B) IPC to undergo imprisonment for life. 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 Mrs. Nithya, aged 24 years. She was married to the appellant 15 months prior to the date of occurrence. It is the further case of the prosecution that from the date of marriage, there were frequent quarrels between the husband and wife. On two occasions, the deceased had left the matrimonial home and returned to her parental home. On all those occasions, the elders persuaded her to go back to the matrimonial home. Accordingly, she continued to live in her matrimonial home. At the time of marriage, 16 sovereigns of gold jewels were presented by her father. After the marriage, it is alleged that the appellant sold away the same and spent the same for his drinking purposes. At the time of marriage, a motorcycle was also presented by the father of Mrs. Nithya to the appellant. But the Registration Certificate of the said motorcycle was retained by her father. The appellant insisted her to get the Registration Certificate back. But her father declined to give the same, as he had an apprehension that the appellant might sell the motorcycle also for his drinking purposes. While so, on 04.12.2009, it is alleged that around 8.00 p.m., at the house of the deceased, there was a quarrel between the appellant and his wife. Soon thereafter, it is alleged that the deceased poured kerosene on her body and set her ablaze. On seeing her burning, the neighbours came and extinguished the fire. She was immediately taken to the Government Hospital at Aranthangi. 2.1. P.W.12 - Dr.Ilayaraja examined her at 8.30 p.m., on 04.12.2009 at the Government Hospital, Aranthangi. Soon thereafter, it is alleged that the deceased poured kerosene on her body and set her ablaze. On seeing her burning, the neighbours came and extinguished the fire. She was immediately taken to the Government Hospital at Aranthangi. 2.1. P.W.12 - Dr.Ilayaraja examined her at 8.30 p.m., on 04.12.2009 at the Government Hospital, Aranthangi. She told him that in an attempt to commit suicide, she set fire to herself. Thereafter for better treatment, P.W.12 referred her to the Thanjavur Medical College Hospital. Accordingly, she was taken to the Thanjavur Medical College Hospital. Unfortunately, on her way, she died. Therefore, the body was again brought back to Government Hospital at Aranthangi and kept there. 2.2. It is further alleged that on getting information from the hospital authorities at Aranthangi, P.W.18 went to the Government Hospital at Aranthangi and recorded the statement of the deceased at 5.30 a.m. on 05.12.2009. On returning to the police station, at 6.30 a.m., he registered a case in Crime No. 137 of 2009 under Sections 294(B), 323and 498(A) IPC. Ex.P1 is the statement of the deceased and Ex.P13 is the FIR. Then he forwarded both the documents to Court. Taking up the case for investigation, he proceeded to the place of occurrence, prepared an observation mahazar in the presence of P.W.6 and another witness. He also prepared a rough sketch showing the place of occurrence. From the place of occurrence, he recovered a aluminium can with odour of kerosene along with the cap. He also recovered a match box with five sticks at the place of occurrence. He found a half burnt yellow colour cloth and a red colour cloth. He recovered all these materials under Ex.P16 in the presence of witnesses. Then on proceeding to the hospital, he examined P.Ws.1 to 9 and recorded their statements. 2.3. The deceased breathed her last in the meanwhile. P.W.18 heard the information about the same. On reaching the hospital, he recorded the statement of one Mr. Murugesan, the brother of the deceased and then altered the case into under Sections 294(b), 323, 498(A) and 304(B) IPC. Since the death of the deceased was within seven years of her marriage, P.W.18 sent a report to the Executive Magistrate cum Revenue Divisional Officer, Aranthangi for holding enquiry under Section 176 Cr.P.C. 2.4. Murugesan, the brother of the deceased and then altered the case into under Sections 294(b), 323, 498(A) and 304(B) IPC. Since the death of the deceased was within seven years of her marriage, P.W.18 sent a report to the Executive Magistrate cum Revenue Divisional Officer, Aranthangi for holding enquiry under Section 176 Cr.P.C. 2.4. P.W.16, the then Revenue Divisional Officer, Aranthangi, held inquest on the body of the deceased at 6.35 p.m. on 06.12.2009. During which, he examined the family members of the deceased as well as that of the accused. He submitted a report under Ex.P12, wherein, he opined that the deceased had committed suicide on account of petty quarrels, which commonly occur between a husband and wife. Then, P.W.19 took up the case for investigation on 06.12.2009, examined the witnesses. The body was sent for postmortem. 2.5. P.W.15 - Dr. Anand, conducted autopsy on the body of the deceased and he found extensive burn injuries, approximately measuring 80%. He gave opinion that the death was due to the burn injuries. On completing the investigation, P.W.19 laid charge sheet against the accused. 2.6. Based on the above materials, the trial Court framed charges. The accused denied the same. In order to prove the charges, on the side of the prosecution, as many as 19 witnesses were examined, 17 documents were exhibited and 7 material objects were marked. Out of the said witnesses, P.W.1 is the father of the deceased. He has stated that the accused insisted upon the deceased to get the Registration Certificate of the motorcycle, which he declined. He told that since the vehicle was purchased under the hypothecation agreement, the Registration Certificate could not be given to the accused until the loan arrears were cleared off. He has further stated that the deceased had spent the entire amount by selling the jewels of the deceased for his drinking purposes and therefore, he had apprehension that the accused might sell the vehicle also for his drinking purposes. P.W.1 was, however, not cross examined by the accused. When the cross examination stood deferred, Mr. Dharmalingam - P.W.1 died. P.W.2 is the brother of the deceased. P.W.3 is her aunt. P.Ws.2 and 3 have also stated the same facts. P.Ws.4 to 7 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.1 was, however, not cross examined by the accused. When the cross examination stood deferred, Mr. Dharmalingam - P.W.1 died. P.W.2 is the brother of the deceased. P.W.3 is her aunt. P.Ws.2 and 3 have also stated the same facts. P.Ws.4 to 7 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.8 is yet another brother of the deceased, who has also spoken about the above domestic quarrels as spoken to by P.W.1. P.W.9 has spoken about the arrest of the accused and the confession made by the accused and the recovery of thali belonging to the deceased. P.W.10 has turned hostile and he has not supported the case of the prosecution in any manner. P.W.11 has spoken about the earlier quarrels between the deceased and the accused. P.W.12 is the Doctor, who has spoken about the treatment given at Aranghangi Hospital and the statement made by the deceased. P.W.13 has spoken to the fact that after the dead body was taken back to the Aranthangi Government Hospital, received the same and kept in the mortuary. P.W.14 has spoken about the fact that he handed over the body for postmortem. P.W.15 has spoken about the postmortem conducted. P.W.16 has spoken about the inquest held by him. P.W.17 has spoken about the death intimation given by the hospital authorities to the police. P.W.18 is the one, who obtained the statement of the deceased and registered the case. P.W.19 has spoken about the investigation done in the case. 2.7. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same. However, he did not choose to examine any witnesses on his side nor marked any documents. Having considered all the above, the trial Court convicted the appellant and accordingly, punished him. That is how, he is before this Court with this appeal. 3. We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully. 4. The learned counsel for the appellant would submit that the prosecution mainly relies on Ex.P1, the statement said to have been made by the deceased to P.W.18. 3. We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully. 4. The learned counsel for the appellant would submit that the prosecution mainly relies on Ex.P1, the statement said to have been made by the deceased to P.W.18. The learned counsel would point out that the said statement cannot be believed for the simple reason that as stated by P.W.1, at the time when P.W.18 had visited the hospital, the deceased was not in a speaking condition even. He would further submit that there is no Doctor's Certificate, though P.W.12 was very much available in the hospital. The learned counsel would submit that for a woman, who had sustained 80% of injuries, giving such a long statement running to two pages, is not possible. The learned counsel would further submit that P.Ws.1 to 3 have only said that the accused insisted upon the deceased to get the Registration Certificate of the motorcycle. This would not go to prove the mens rea on the part of the accused, he contended. Thus, according to the learned counsel, absolutely, there is no evidence that the accused demanded dowry and harassed her to satisfy the requirements of Sections 304(B) as well as 498(A) IPC. 5. But the learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, the presumption under Section 113-B of the Indian Evidence Act is to be drawn against the accused, since the death was unnatural and he has also harassed her soon before her death. The learned Additional Public Prosecutor would further submit that there are no reasons to reject the evidence of P.W.18 that he obtained Ex.P1 - statement from the deceased. According to him, Ex.P1 deserves more weightage at the hands of this Court. The learned Additional Public Prosecutor would further submit that from the evidences of P.Ws.1 to 3 and P.W.8, the prosecution has further established that the deceased was subjected to harassment. Thus, according to the learned Additional Public Prosecutor, the trial Court was right in convicting the accused. 6. We have considered the above submissions. 7. For the sake of convenience, let us take up Ex.P1 for consideration. Ex.P1 is the statement said to have been made by the deceased and is said to have been recorded at 5.30 a.m. on 05.12.2009 at Government Hospital, Aranthangi. 6. We have considered the above submissions. 7. For the sake of convenience, let us take up Ex.P1 for consideration. Ex.P1 is the statement said to have been made by the deceased and is said to have been recorded at 5.30 a.m. on 05.12.2009 at Government Hospital, Aranthangi. P.W.12 - Dr. Ilayaraja, who admitted her in the hospital, has stated that the deceased told him that she set fire to herself in an attempt to commit suicide. At that point of time, the deceased did not say anything incriminating against the accused. He has further stated that at the time when P.W.18 had come to record the statement, whether the deceased was conscious to make a statement or not cannot be stated by him. Thus, there is no medical evidence to prove that the deceased was in a fit state of mind to make a statement at 5.30 a.m. on 05.12.2009. But to the contrary, the evidence of P.W.1 goes to show that the deceased was unconscious. During cross examination, P.W.1 - the father of the deceased had stated that soon after the admission in the hospital, the condition of the deceased was very serious and she is not in a position to even speak. He has further stated that while she was in such a bad state, unable to speak, the police came and prepared the statement. This would go to clearly show that the deceased was not even conscious to make Ex.P1, a lengthy statement. Thus, in our considered opinion, Ex.P1 deserves to be rejected, as it is surrounded by lot of doubts. It is also not explained to the Court as to why, while recording the said statement, Ex.P1, the opinion of P.W.12, who was very much available in the hospital, has not been obtained. For these reasons, we reject Ex.P1. 8. Apart from that the prosecution relies only on the evidence of P.Ws.1 to 3 and 8, who are the family members of the deceased and they are closely related to the deceased. Even they have not stated about anything incriminating against the accused about demand of dowry and any consequential harassment. They have only stated that the accused insisted upon the deceased to get the Registration Certificate of the motorcycle. It is a common knowledge that the vehicle cannot be driven without the Registration Certificate. Even they have not stated about anything incriminating against the accused about demand of dowry and any consequential harassment. They have only stated that the accused insisted upon the deceased to get the Registration Certificate of the motorcycle. It is a common knowledge that the vehicle cannot be driven without the Registration Certificate. Therefore, the accused would have asked his wife to get the Registration Certificate. Such insistence to get the Registration Certificate for genuine purpose cannot be construed as a demand for dowry, consequentially as a harassment. Thus, from the evidence of P.Ws.1 to 3 and 8, it cannot even be inferred that the deceased was harassed in terms of Sections 498(A) and 304(B) IPC. 9. Though under Section 304(B) IPC, a presumption of dowry death is to be drawn, in this case, such presumption cannot be drawn for the simple reason that there is no evidence that the deceased was harassed that too soon before her death in connection with demanding any property or valuable security in connection with the marriage. Thus, the presumption under Section 113B of the Indian Evidence Act as well as under Section 304(B) IPC are not available for the prosecution. In such view of the matter, we find that, absolutely, there is no convincing evidence to prove these offences under Sections 498(A) and 304(B) IPC. The prosecution has, thus, miserably failed to prove the case beyond reasonable doubts. 10. In the result, the criminal appeal is allowed, the conviction and sentence imposed on the appellant is set aside and he is acquitted of all the charges. Fine amount, if any paid by him, shall be refunded to him. Bail bond shall stand terminated.