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2020 DIGILAW 944 (MAD)

Manivannan v. State

2020-06-30

T.KRISHNAVALLI

body2020
JUDGMENT : T. Krishnavalli, J. 1. This Criminal Appeal is directed against the judgment passed by the VI Additional District and Sessions Judge, Madurai, in SC No. 343 of 2002, dated 24.04.2015. 2. The case of the prosecution is that A1 is the husband of the deceased Nirmala and A2 and A3 are the father and mother of A1 and the deceased got married to A1 on 22.08.1993 and at the time of marriage, PW1 who is the father of the deceased gave 35 sovereigns of jewels, ornaments along with house-hold articles and out of the wedlock, two children were born and the deceased was employed as a teacher and after the marriage, A1 at the instigation of A2 and A3 demanded dowry and due to it, PW1 subsequently deposited Rs. 90,000/- in the name of the deceased and her children and Rs. 25,000/- was paid to A1 for starting a business on his demand and after obtaining the same, A1 further demanded a sum of Rs. 10,000/- for purchase of a motor cycle and when that being so, prior to the date of the occurrence, the deceased was forced by A1 to withdraw Rs. 90,000/- and deposited in his name, un-bearing the persistent demand, the deceased Nirmala committed suicide by hanging in the Kitchen on 02.05.2020. In this connection, the respondent police registered a case against the accused persons for the offences under sections 498(A) and 304(B) IPC r/w 34 IPC by examining the witnesses. 3. The trial court namely the Additional District and Sessions Judge, Fast Track Court No. III, Madurai, acquitted all the accused on all charges levelled against them, by judgment, dated, 28.03.2003 made in SC No. 343 of 2002. Aggrieved by the judgment of the trial court, PW1 preferred Crl. RC(MD) No. 790 of 2003 before this court. This court, by judgment, dated 21.04.2008 remitted back the case to trial court and the accused are directed to mark the pay slips of the first accused by examining relevant witnesses and the prosecution is entitled to make cross examination and further, the trial court is directed to examine the testimonies of all the witnesses properly and pass judgment on merits within a period of three months from the date of receipt of copy of the order, by hearing the arguments afresh on both sides. 4. 4. Challenging the order of remand, the accused preferred appeal in Criminal Appeal No. 733 of 2010 before the Apex Court, pending that appeal, A2 died. The Hon'ble Apex Court upheld the order of acquittal of A3, but also upheld the order of remittance passed by this court, by partly allowing the appeal and directed the trial court to permit A1 to mark the pay slips through the relevant witness and pass judgment on merits. In compliance of the order passed by the Apex Court, the trial court namely the VI Additional District and Sessions Judge, Madurai, after hearing both side afresh, delivered its judgment on 24.04.2015 by convicting the appellant/A1 for the offence under sections 498(A) and 304(B) IPC, imposing rigorous imprisonment for 3 years with fine of Rs. 1,000/-, in default of undergo three months for the alleged offence under section 498(A) IPC and imposed 10 years rigorous imprisonment for the alleged offence under section 304(B) IPC and directed to run the sentences concurrently. Feeling aggrieved by the judgment of the trial court, the appellant/A1 is before this court. 5. Heard both sides and perused the materials available on record. 6. The main contention raised on the side of the appellant/A1 is that the entire case of the prosecution based on the allegation that the appellant/A1 has no permanent job and he demanded money from his wife and due to the frequent demand made by the accused, PW1 sold his ancestral property and from the sale consideration, he has deposited Rs. 50,000/- in Canara Bank and Rs. 40,000/- in the Agricultural Co-operative Bank and he has given Rs. 25,000/- to the 1st accused in order to start a business, but he has spent the said amount lavishly and compelled the deceased to withdraw the deposited amount and hence, the prosecution has to prove the alleged deposit money through oral or documentary evidence, but no oral or documentary evidence was produced to establish the fact that PW1 sold his ancestral property and deposited Rs. 90,000/- in the name of the deceased and further, on the prosecution side also failed to establish the origin of the case that PW1 sold his property and deposited into the bank, the repeated allegation, but A1 harassed the deceased to withdraw the deposited amount is nothing, but a falsehood and further, there was no demand of dowry prior to the death of the deceased and further, PW1 to PW8 are all interested witnesses and hence, their evidence cannot be relied upon and prays that the appellant/A1 is entitled to acquittal. 7. PW1 is the father of the deceased. PW2 is the mother of the deceased. To prove the cruelty, on the side of the prosecution, PW1 to PW8 were examined. PW1 gave Ex. P1 complaint in respect of the occurrence. PW1 in his complaint and evidence stated that the husband of the deceased demanded money from his daughter to run a business and due to it, quarrel arose between the appellant/A1 and the deceased and A1 has not gone to the work and hence, considering the future of his daughter and the grand children, he sold his property and deposited Rs. 90,000/- in his daughter's name in the Agricultural Cooperative Bank and also gave Rs. 25,000/- to A1 to start a business, but A1 instead of starting business, he spent the above amount lavishly and further, A1 harassed his daughter by way of demanding money and then, PW1 gave Rs. 10,000/- to A1 and A1 spent the above amount lavishly and when it was questioned by his daughter, A1 assaulted his daughter and he heard from one Chinnan, who is the neighbour of A1 that prior to the death of his daughter, there was quarrel arose between A1 and the deceased and in the night, his daughter cried and then, he went to see his daughter and saw that his daughter was found dead by hanging and then, he went to the police station and gave Ex. P1 complaint. 8. PW1 and PW2 have categorically stated during their evidence that A1 demanded money from the deceased and for the future welfare of their daughter and grand children, PW1 sold his property and deposited Rs. 90,000/- in the name of their daughter, Rs. 25,000/- was given to A1 and further, Rs. 10,000/- was given to A1. To prove that PW1 had property, no document was filed. 90,000/- in the name of their daughter, Rs. 25,000/- was given to A1 and further, Rs. 10,000/- was given to A1. To prove that PW1 had property, no document was filed. It was not stated by PW1 to whom, he sold the property and what is the sale proceeds. To prove the sale, no document was produced. Further, no document was produced on the side of the prosecution to prove the deposit in the name of the deceased and the amount of Rs. 25,000/- and Rs. 10,000/-, which were paid to A1. 9. In this case, the Investigating Officer was examined as PW17. At this juncture, it is necessary to refer the cross examination of PW17, which would run thus:- IMAGE 10. PW1 categorically stated that due to the demand by A1, he sold the property and deposited Rs. 90,000/- from his daughter's name and A1 by insisting her wife to give money for starting a business. As per the prosecution version, PW1 deposited Rs. 90,000/- in his daughter's name and Rs. 40,000/- in his grand children namely only by way of selling his properties. Hence, it is the bounden duty of PW1 to prove that the property was stood in his name and if it was sold and then, the sale proceeds were used for deposit in the name of the deceased and her children. To prove it, no document was produced on the side of the prosecution. Hence, the evidence of PW1 and PW2 stating that since A1 demanded amount from their daughter, PW1 sold his property and gave the amount to the deceased and her children is not at all acceptable. 11. To prove the cruelty by A1 towards the deceased, on the side of the prosecution, PW3 to PW8 were examined. PW3 deposed that the deceased came to his house and stated that her husband demanded money to start a business and subjected her to cruelty and due to it, frequent quarrel arose between A1 and the deceased and he went to the house of A1 and pacified the quarrel and on 01.05.2000 at 11.00 pm, he heard the sound from the house of A1 and then, he and his wife went to A1's house, at that time, they saw that A1 put his hand on the neck of the daughter of PW1 and said “IMAGE” and then, he pacified the above quarrel. For the above occurrence, the deceased has not given any complaint and further, she has not gone to the hospital for the attack by A1 on her neck. It is admitted fact that at the time of occurrence, the deceased is working as a teacher. The deceased is an educated lady. But she has not preferred to give any complaint or gone to the hospital for the alleged injury sustained by her due to the activities of A1. Hence, it creates doubt about the evidence of PW3. Further, PW3 stated during his evidence that A1 demanded Rs. 10,000/- for the purchase of two wheeler. But the above fact was not stated by PW1 either in his complaint or during his evidence. If really the deceased sustained injury on her neck, she would have definitely gone to the hospital for taking treatment. But the deceased has not gone to any hospital for taking treatment for the injuries sustained on her neck. PW3 stated during his evidence that he narrated the above occurrence to PW1. But PW1 has not stated that her daughter told that A1 demanded Rs. 10,000/- for purchasing a vehicle. PW3 stated during his evidence that he and his wife went to the house of A1 and saw that A1 assaulted the deceased. But during his cross examination stated that at the time of occurrence, his wife is working in Ulilampatti. Hence, the evidence of PW3 stating that on 01.05.2000 at 11.00 pm, his wife heard the sound of the deceased and they went to the house of the deceased and saw that A1 assaulted the deceased is not at all acceptable. Hence, it is held that there are lot of contradictions in the evidence of PW1 and PW3. 12. Hence, the evidence of PW3 stating that on 01.05.2000 at 11.00 pm, his wife heard the sound of the deceased and they went to the house of the deceased and saw that A1 assaulted the deceased is not at all acceptable. Hence, it is held that there are lot of contradictions in the evidence of PW1 and PW3. 12. PW4 deposed that due to the demand by A1, PW1 sold his property and deposed in the name of the deceased and from the servant maid Meena, she and her husband came to understand that A1 demanded the amount deposited in the name of the deceased and assaulted the deceased and due to it, she sustained injury and then, she and her husband took the deceased to the Hospital and on 01.05.2000, her relatives Priyadharshini came to her house and told that A1 subjected the deceased to cruelty and then, she and her husband went to the house of A1 and pacified the matter and then, quarrel arose between A1 and the deceased and then, her husband went to call PW1 and when PW1 came to the house of A1, they found that the deceased had died due to hanging. 13. PW4 categorically stated that she came to understand the occurrence only from one Meena, who is the servant maid. PW4 and her husband are not the direct eye witnesses to the occurrence. PW4 deposed that she and her husband took the deceased to hospital. It is to be noted that in this case, the Doctor, who gave treatment to the deceased was not examined. Hence, much importance cannot be given to the evidence of PW4. 14. PW5 deposed that the accused demanded money from the amount already deposited in the name of the deceased and drove the deceased to her parental home and 15 days prior to the death of the deceased, his wife went to the house of A1 and she saw that A1 and the deceased quarrelled each other and then, his wife came out and went to her relatives house and the servant maid came and told him that A1 assaulted his wife and then, his wife went to the house of the deceased and asked her and for that, the deceased replied that her husband demanded Rs. 90,000/- deposited in her name and harassed her and his wife took the deceased to the hospital and left the deceased in her matrimonial home. PW5 has not taken any steps to pacify the quarrel between A1 and the deceased. It is to be noted here that PW5 is the close relative of PW1. PW5 has not stated that he informed the above harassment by A1 towards the deceased to PW1. PW5 has not stated during his cross examination, the name of the hospital to where the deceased was taken by his wife. PW5 is not a direct eye witness. He is only a hearsay witness. Further, he is a close relative of PW1. Hence, much importance cannot be given to the evidence of PW5. 15. PW6 is the daughter of PW5. PW6 deposed that on 29.04.2000, she went to the house of the deceased and found that the deceased was crying and she asked the deceased why she was crying, for that, the deceased replied that her husband demanded the amount of Rs. 90,000/- deposited in her name and her husband assaulted her and on 01.05.2000, she went to the house of the deceased and saw that the deceased requested A1 to take their daughter to the hospital and for that, A1 replied that without giving money to him from the amount deposited in her name and not permitted to go anywhere and when it was questioned by her, A1 assaulted her and caused injury on her neck and then, she went away. PW6 has not taken any steps to inform the above occurrence to her father and PW1. Further, she has not taken any steps to take the deceased to the hospital. On careful perusal of the above evidence, it is seen that after the assault by A1 towards the deceased, she simply went to her house. Hence, the evidence of PW6 is not believable and not trustworthy. PW6 is the relative of PW1 and she is the interested witness. Hence, her evidence cannot be given much importance. 16. PW7 is the wife of PW5. Hence, the evidence of PW6 is not believable and not trustworthy. PW6 is the relative of PW1 and she is the interested witness. Hence, her evidence cannot be given much importance. 16. PW7 is the wife of PW5. PW7 deposed that the deceased told her that A3 took the sand below the foot of the deceased and kept it in a pocket and when it was questioned, quarrel arose between the deceased and A1 and then, she proceeded to her house and turned and saw that A1 assaulted the deceased and then she went to her house and the servant maid of the deceased came and told the harassment done by A1 towards the deceased and then, she went to the house of the deceased and saw that the deceased found with some injuries and she took her to the hospital and left her in her matrimonial home. PW7 has not stated the name of the hospital to whom she took the deceased. Further, her daughter also narrated the above harassment done by A1 towards the deceased. Further, PW7 during her cross examination stated that only for starting business, A1 demanded money from the deceased. PW5 during her cross examination stated that at the time of occurrence, PW7 was working in Usilampatti. Hence, PW7 is not a direct eye witness and she is only a hearsay witness. Hence, no much importance can be given to the evidence of PW7. 17. In this case, the Servant Maid of the deceased was examined as PW8. PW8 deposed that A1 assaulted the deceased by stating that the deceased has to give him money from the amount deposited by her father and she narrated the above occurrence to PW4 and PW4 came and took the deceased to the hospital. PW4 during her chief examination stated that prior to the death of the deceased, A1 demanded money from the deceased by asking her to give money from the amount deposited. Already, it was decided that the deposit amount of Rs. 90,000/- in the name of the deceased was not proved, the evidence of PW4, PW6 to PW8 stating that A1 demanded money from the deceased, which was deposited in the name of the deceased is not at all acceptable. 18. In this case, to prove the harassment by A1 towards the deceased, the neighbours of A1 were examined as PW10 to PW12. 18. In this case, to prove the harassment by A1 towards the deceased, the neighbours of A1 were examined as PW10 to PW12. PW10 turned hostile and did not support the case of the prosecution. PW11 deposed that the 1st accused used to quarrel with his wife and he came to know about the death of the deceased. While being cross examined, PW11 admitted that he did not know as to what for the spouses quarrelled with each other. PW12 is another neighbour and he has stated in the chief examination that both the deceased and the 1st accused used to quarrel frequently and on the date of the occurrence also, there was quarrel between the spouses and he heard some crying sound in the matrimonial house of the deceased in the morning hours and then he saw the deceased dead on hanging when he went there. It is to be noted that all these witnesses have only deposed that A1 had been quarrelling with the deceased on many occasions and there is no one to speak about any harassment towards the deceased for dowry on the part of A1. 19. Further, the learned counsel appearing for the appellant/A1 submitted that A1 was already working in a private concern and hence, it is not necessary for A1 to start business and hence, the allegation put forth on the side of the prosecution stating that A1 demanded money from his wife from the amount already deposited in the name of his wife is not at all acceptable and there was no demand of dowry by A1 and demand of money for starting business is not amounting to demand of dowry and prays that the appellant/A1 is entitled to acquittal. 20. In the complaint, PW1 has stated that A1 had no permanent job and that made him to torture his wife, the deceased to get more money from her parents to start a separate business. To counter the above case of the prosecution, the defence side has produced before this court some pay slips of A1 along with a petition filed under section 243 Cr.P.C. The occurrence has taken place on 01.06.2000. The pay slips produced by the accused show the employment of A1 in one Ruchi Agro Private Limited at Madras. The 1st pay slip is dated June 1999, when the 1st accused was working in one American Dry Food Limited. The pay slips produced by the accused show the employment of A1 in one Ruchi Agro Private Limited at Madras. The 1st pay slip is dated June 1999, when the 1st accused was working in one American Dry Food Limited. Those days, he was earning a total a emoluments of Rs. 3,190/- and during the month of February 2003, he had been earning a total salary of Rs. 3,432/-. A careful consideration of the above pay slips would clearly show that A1 was employed right from the year 1999 and there is no justification in saying that A1 was not a regular employee of any institution having no permanent income. In this aspect, it is relevant to extract one line from Ex. P1 and the evidence of PW1, which would run thus:- IMAGE 21. At one stage of the complaint, PW1 stated that A1 was an employee in a private concern, whereas at another stage is stated that he dropped that job and was in search of a private business. Having stated as above in the complaint, PW1 has directly stated in his evidence as follow:- IMAGE When this being the evidence of PW1, the evidence of PW2 reads as follows:- IMAGE 22. The defence side has also produced a document showing the ownership of several items of properties, which is proved by Ex. D1. A witness was also examined on the side of the defence to prove the authenticity of Ex. D1. It shows that the father of A1 had 22 numbers of properties in Achampatti village. The Village Administrative Officer has deposed as DW2 and he has stated that the accused have properties worth Rs. 9,50,000/- including houses. PW3 Rajendran is an employee in American Dry Fruits concerned and he would state that from 1999, the 1st accused was working as a Salesmen. He has also stated that the 1st accused was drawing a sum of Rs. 3,300/-, besides other perquisites. He would also add that he is now being employed in Tamil Nadu Zonal Sales Manager, where the 1st accused is a Sales Officer. The above evidence has not been disproved by the prosecution side and it is clearly seen that the 1st accused was an employee in a concern, wherein he was drawing a monthly salary. He would also add that he is now being employed in Tamil Nadu Zonal Sales Manager, where the 1st accused is a Sales Officer. The above evidence has not been disproved by the prosecution side and it is clearly seen that the 1st accused was an employee in a concern, wherein he was drawing a monthly salary. As such the case put forth by the defence side appears to be convincing in as-much as the 1st accused was that much not interested in starting a separate business as canvassed by the prosecution side. 23. Further, for the offence under section 304(B) IPC, it is to be proved that there was demand of dowry prior to the death. In this case, already it was stated that A1 subjected the deceased by way of demanding money from the amount deposited by the family of the deceased in her and children name. But it was decided that the amount of Rs. 90,000/- deposited in the name of the deceased was not proved on the side of the prosecution. The prosecution case is that A1 assaulted the deceased by way of asking money from the amount deposited in the name of the deceased. But no document was produced to prove the amount deposited in the name of the deceased. Further, on the side of the accused, it is proved that at the time of occurrence, he was working in a private concern. Hence, the alleged cruelty committed by A1 was not proved. It is the case of the prosecution that A1 demanded money from the amount deposited in the name of the deceased and hence, the case is entirely based on the amount deposited in the name of the deceased. But it was not proved on the side of the prosecution. Hence, the argument put forth on the side of the prosecution stating that prior to the death of the deceased, there was demand of dowry and due to it, the deceased committed suicide is not at all acceptable. 24. But it was not proved on the side of the prosecution. Hence, the argument put forth on the side of the prosecution stating that prior to the death of the deceased, there was demand of dowry and due to it, the deceased committed suicide is not at all acceptable. 24. The learned counsel for the appellant/A1 submitted that the whole case was manifested by one Advocate, who is the close relative of PW1 and one Inspector, who is the son of the sister of PW2 and PW1 to PW5 are the close relatives of the deceased and hence, they improved the case and hence, their evidence cannot be relied upon and only at the instigation of the above lawyer and the Inspector of Police, the case was foisted against the accused and prays that the appellant/A1 is entitled to acquittal. 25. In this case, PW1 during his cross examination admitted that he received all the jewels given to his daughter at the time of marriage from A1. Further, he has not stated during his evidence that frequently her daughter was driven by the accused to his house. Hence, there is no chance for the deceased to report the alleged harassment by her husband to her father. Further, PW1 during his cross examination admitted that the Inspector Kumaran, who was his relative visited the place of occurrence and hence, it reveals that there is a chance for improving the case and filed it as against the accused. 26. On careful perusal of the evidence of PW1 to PW8, it reveals that the witnesses have made several improvements and hence, it is held that it falsify the whole case of the prosecution. 27. Further, the learned counsel for the appellant/A1 argued that the date of occurrence is 01.05.2000 and except the FIR and the statement of PW1, all the other documents and the statement reached the court only on 06.12.2000 and the delay in preparing documents by the prosecution agency, go to show that the prosecution side has manipulated the matter and the statement given by PW1 alone reached the court on 05.05.2000, whereas the corroborating statement of the witnesses have reached only on 05.12.2000, though they are seen to have examined as early as on 04.05.2000 and though, it is well settled that the delay is not fatal to the prosecution. But when a specific question raised by the defence side, it is the duty of the prosecution to give valid reason. But in this case, when a specific question asked to the Investigating Officer, he has not given any valid and acceptable reason and prays that the accused is entitled to acquittal. For that, the learned counsel appearing for the accused submitted the ruling reported in 2012(3) MWN (Crl.) 266 (DB), wherein it is held as follows:- "Delay of 6 hours in reaching court non explanation-effect-FIR as also documents, case properties recovered and statement of witnesses under section 161 must reach court with least delay so as to prevent embellishment of tune version as to occurrence and false implications and every delay in submitting these documents to court will give scope and chance for interpolation and storytelling and any unreasonable and unexplained delay will affect credibility and quality of evidence of the prosecution witnesses more particularly and the eye witnesses and key witnesses and unexplained delay, thus assumes signal importance and goes to root of the matter and shakes prosecution version of case embodied in FIR." 28. In this case, the date of occurrence was 01.05.2000. PW1's statement was recorded by the court on 05.05.2000. But the statement of corroborating witnesses reached the court only on 05.12.2000. But on careful perusal of the statement of witnesses, it is seen that their statements were recorded on 04.05.2000. At this juncture, it is necessary to refer the cross examination of the Investigating Officer, which would run thus:- IMAGE 29. No proper explanation was given for the delay in sending the document to the court. Hence, it creates doubt about the prosecution case. 30. For all the reasons stated above, this court is of the considered view that the trial court without properly analysing the entire materials available on record, both oral and documentary, had given a erroneous finding, which according to this court, is liable to be set aside and accordingly, it is set aside. 31. In the result, this Criminal Appeal is allowed. The impugned judgment of conviction and sentence are set aside. The appellant/Accused is acquitted of the charges levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.