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2021 DIGILAW 1792 (MAD)

Rajesh v. State of Tamil Nadu

2021-06-23

P.VELMURUGAN

body2021
JUDGMENT : PRAYER: Criminal Appeal is filed under Section 374 (2) of Cr.P.C. to set-aside the Judgment dated 15.02.2021 made in S.C.No.277 of 2016, on the file of the learned Mahila Sessions Judge, at Chennai. This Criminal Appeal has been filed against the conviction and sentence imposed by the learned Sessions Judge, Chennai in S.C.No.277 of 2016, dated 15.02.2021. 2. The respondent-Police have registered a case against the appellants and 2 others in Crime No.895 of 2015 for the offences punishable under Sections 498A and 306 of IPC. After investigation, laid a charge sheet before the learned IX Metropolitan Magistrate, Saidapet, Chennai and the same was taken on file in P.R.C.No.54 of 2016. After completing the formalities, since the offences are especially triable by the Court of Session, the learned Metropolitan Magistrate, Saidapet, committed the case to the learned Principal Sessions Judge, Chennai. The learned Principal Sessions Judge taken the case on file in S.C.No.277 of 2016 and made over to the learned Sessions Judge, Mahila Court, Chennai. 3. After completing the formalities under Section 207 Cr.P.C., since there was a prima facie material to frame charge against the appellants, the learned Principal Sessions Judge, farmed charges for the offences under Sections 498-A and 304 (B) of IPC. 4. After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the learned trial Judge found the accused 2 and 4 not guilty for the offence under Sections 498-A and 304(B) of IPC and acquitted them, since both the charges framed against the accused 2 and 4 were not proved by the prosecution beyond reasonable doubt. The learned Judge, also found the accused 1 and 3/appellants 1 and 2 not guilty for the offence under Section 304(B) IPC, as the prosecution failed to prove its case for demand of dowry, however, convicted the accused 1 and 3/appellants 1 and 2 for the offence under Section 498-A of IPC and sentenced them to undergo imprisonment for a period of one year and imposed a fine of Rs.5,000/- each, in default, to undergo simple imprisonment for one month; and also convicted the accused 1 and 3/appellants 1 and 2 for the offence under Section 306 of IPC and sentenced them to undergo imprisonment for 5 years and to pay a fine of Rs.10,000/- each, in default, to undergo three months simple imprisonment. 5. 5. Challenging the above said Judgment of conviction and sentence, the appellants have filed the present appeal before this Court. 6. The learned counsel for the appellants would submit that there was no demand of dowry and there was no harassment by the family members of the appellants, which is evident from the suicide note written by the deceased. The learned counsel would further submit that there was a delay in filing the F.I.R. and delay in sending the F.I.R. to the Court. It is also submitted that no independent witnesses spoken about the cruelty and also abettment. Though there are material contradictions between the prosecution witnesses, P.W.1 to P.W.5 are interested witnesses, P.W.1 is the father of the deceased, P.W.2 is the mother of the deceased, P.W.3 is the sister of the deceased, P.W.4 and P.W.5 are the relatives of the deceased and no independent witnesses were examined by the prosecution. 7. It is also submitted by the learned counsel for the appellants that the parents of the deceased have not stated anything about Rs.60,000/- was brought by them to give their daughter, as against the original demand made by the first appellant for a sum of Rs.1,00,000/- in Ex.P1-complaint and only during the RDO enquiry, they have stated that the deceased telephoned and informed her mother that it is not possible for her to live in the house without giving money demanded by the accused, and on receipt of the said information, the parents of the deceased viz., P.W.1 and P.W.2 have arranged a sum of Rs.60,000/- and rushed to the house of the accused, which is nothing but an improvised version. 8. The learned counsel would further contend that though the learned trial Judge rightly appreciated the evidence and acquitted the accused Nos.2 and 4 and also found that there was no demand of dowry, however, wrongly convicted the appellants/accused 1 and 3 for the offences under Sections 498 A and 306 of IPC. 8. The learned counsel would further contend that though the learned trial Judge rightly appreciated the evidence and acquitted the accused Nos.2 and 4 and also found that there was no demand of dowry, however, wrongly convicted the appellants/accused 1 and 3 for the offences under Sections 498 A and 306 of IPC. Even all the accused were examined by the Revenue Divisional Officer and during the inquest, they have clearly stated that there was no demand of dowry and they have not abetted the deceased to commit suicide and the suicide note written by the deceased itself shows that there was no demand of dowry, cruelty, however, the trial Court erroneously convicted the appellants/accused 1 and 3 for the offences under Section 498A and 306 of IPC, which warrants interference. 9. The learned Government Advocate (Criminal Side) would submit that the parents of the deceased viz., P.W.1 and P.W.2 have clearly stated that at the time of marriage, the appellants family demanded 100 sovereigns of jewels, and however, the parents of the deceased could provide only 70 sovereigns of jewels, therefore, the appellants demanded remaining 30 sovereigns of jewels from the deceased. It is also further submitted that the first accused/first appellant demanded a sum of Rs.1,00,000/- and the same was deposited into the bank account of the third accused. It is further submitted that after the marriage, a female child was born to the accused and the deceased, and during the ear boring ceremony of the child, the third appellant demanded diamond stud and also demanded cash. P.W.1 and P.W.2 have clearly stated during their evidence that even at the time of ear boring ceremony, they provided 10 sovereigns of jewels to her daughter and also 3 1/2 sovereigns of jewels to her granddaughter, viz., the daughter of the deceased. The third accused/second appellant herein abused the deceased and her family members for not providing the diamond stud to the ear boring function and harassed the deceased about 5 to 6 months by demanding money from her. It is also further stated that the first accused demanded a sum of Rs.1,00,000/- from the deceased to redeem the jewels of the deceased, which were already pledged by the accused for purchasing a land. It is also further stated that the first accused demanded a sum of Rs.1,00,000/- from the deceased to redeem the jewels of the deceased, which were already pledged by the accused for purchasing a land. When the parents of the deceased made arrangement for a sum of Rs.60,000/- and rushed from Virudhunagar to Chennai, they received a phone call stating that the deceased committed suicide. All the witnesses have clearly spoken about the demand made by the appellants' family and also with regard to cruelty and due to the continuous demand and cruelty, the deceased committed suicide. Since the appellants abetted the deceased to commit suicide, the trial Court, though not convicted the appellants herein for the offence under Section 304-B of IPC for dowry death and acquitted the accused Nos.2 and 4, however, appreciated the entire evidence, and rightly convicted the accused 1 and 3/appellants for the offences punishable under Sections 498- A and 306 of IPC. Therefore, findings of conviction and sentence recorded by the trial Court does not warrant any interference and therefore, the appeal is liable to be dismissed. 10. Heard the learned counsel on either side and perused the materials placed on record. 11. The case of the prosecution is that on 12.03.2015, the first appellant/first accused along with other accused demanded Rs.1,00,000/- from the deceased to redeem the jewels belongs to her and pledged in the Bank and on such demand, he scolded the deceased to die if it is not possible for her to get money. Thereby, he caused cruelty to the deceased for demanding dowry and thereby abetted her to commit suicide. Due to that on 12.03.2015, at about 08.30 p.m., the deceased committed suicide by hanging with her saree in the ceiling of their house. On complaint given by the father of the deceased, a case was registered under Section 174 (iii) of Cr.P.C. and referred to RDO for enquiry. The Investigating Officer, who done in the investigation altered the offence into Sections 498A and 306 IPC and on completion of his investigation filed final report against the accused. 12. After completing investigation, the respondent Police laid a charge sheet before the IX Metropolitan Magistrate, Saidapet, Chennai, who committed the case to the learned Principal Sessions Judge, Chennai. The Investigating Officer, who done in the investigation altered the offence into Sections 498A and 306 IPC and on completion of his investigation filed final report against the accused. 12. After completing investigation, the respondent Police laid a charge sheet before the IX Metropolitan Magistrate, Saidapet, Chennai, who committed the case to the learned Principal Sessions Judge, Chennai. The learned Principal Sessions Judge taken the case on file in S.C.No.277 of 2016 and made over to the learned Sessions Judge, Mahila Court, Chennai. 13. During the trial, on the side of the prosecution, as many as 10 witnesses were examined as P.W.1 to P.W.10 and 12 documents were marked as Exs.P1 to P12 and one material object was exhibited as M.O.1. After completing the examination of prosecution witnesses, when incriminating circumstances were culled out from the evidence of prosecution witnesses put before the appellants by questioning under Section 313 Cr.P.C., they denied the same as false and pleaded not guilty. On the side of the defence, no witness was examined and no document was marked. 14. After completing trial and hearing arguments advanced on either side, the learned Sessions Judge vide judgment, dated 15.02.2021 in S.C.No.277 of 2016, acquitted the accused 2 and 4 and convicted the accused 1 and 3/appellants, as stated above. 15. This Court, being an Appellate Court, is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give an independent finding and accordingly, this Court has re-appreciated the entire oral and documentary evidence produced before this Court and come to the independent finding. 16. The first appellant is the husband of the deceased and the second appellant is the mother of the first appellant. Initially, a case was registered against the first appellant and his father and mother and his sister. After investigation, charges were framed and the trial Court acquitted the second and fourth accused, who are the father and sister of the first accused respectively, and convicted the first appellant and his mother, the second appellant herein. 17. It is an admitted fact that the deceased was the daughter of P.W.1 and P.W.2 and the marriage between the deceased and the first appellant was solemnized on 23.11.2011 and the deceased committed suicide on 12.03.2015. 17. It is an admitted fact that the deceased was the daughter of P.W.1 and P.W.2 and the marriage between the deceased and the first appellant was solemnized on 23.11.2011 and the deceased committed suicide on 12.03.2015. Normally, if woman committed suicide within a period of 7 years from the date of her marriage, if her husband and his relatives had subjected her to cruelty, the Court may presume that she had been abetted to commit suicide by her husband and his relatives, as per Section 113 A of the Indian Evidence Act. Since there is a demand of Rs.1,00,000/- by the accused from the deceased, but the same was demanded for the purpose of redeem the jewels of the deceased, which were already pleaded by the accused for purchasing a land. The said amount demanded is no way connected to the marriage. It is also not an amount demanded at the time or before or after the marriage in connection with the marriage. From the evidence of P.W.1 and P.W.2, the trial Court found that there was no demand of dowry and therefore, held that the death of the deceased would not come under the category of Dowry Death, as the said demand of Rs.1,00,000/- by the first accused would not fall under Section 2 of the Dowry Prohibition Act, 1961 and therefore, acquitted all the accused 1 to 4 for the offence under Section 304-B of IPC and against the said acquittal, neither the State nor the parents of the deceased have filed any Appeal, however, the accused 1 and 3/appellants herein alone have filed the present appeal against the conviction for the offences under Sections 498-A and 306 of IPC. Therefore, the question before this Court, whether the appellants have committed offences under Sections 498-A and 306 of IPC and the deceased committed suicide only due to the abettment caused by the appellants/accused 1 and 3. 18. In order to prove the case of the prosecution, on the side of the prosecution, totally 10 witnesses were examined out of which, parents of the deceased were examined as P.W.1 and P.W.2. 18. In order to prove the case of the prosecution, on the side of the prosecution, totally 10 witnesses were examined out of which, parents of the deceased were examined as P.W.1 and P.W.2. They have clearly spoken that though at the time of marriage, the appellants' family initially demanded 100 sovereigns of jewels, however, they could provide only 70 sovereigns of jewels and there is no clear evidence that they demanded remaining 30 sovereigns of jewels, however, P.W.1 and P.W.2 clearly stated that after the marriage, the first appellant pledged all the jewels and purchased a land in Tambaram in his name and subsequently in order to redeem the jewels, he demanded amount for a sum of Rs.1,00,000/-. Further, the evidence of P.W.1 and P.W.2 shows that at the time of earn boring ceremony of their granddaughter, the appellants' family demanded diamond stud for the child, since they have not provided the diamond stud and only provided 10 sovereigns of jewels to her daughter and 3 1/2 sovereigns of jewels to their granddaughter, they scolded about the gift made by them during the ear boring ceremony of child. The appellants' family also demanded Rs.1,00,000/-, since they could not provide it, they scolded the deceased, which is prior to the date of occurrence. Immediately, the deceased telephoned to her mother P.W.2, narrating the incident, and they have also arranged a sum of Rs.60,000/- and when they were proceeding to the appellant's house, and in the meanwhile, they received a telephone call stating that their daughter committed suicide. Subsequently, they went to the Hospital and since they suspected the death of their daughter, made a complaint and the case was registered under Section 174 of Cr.P.C. (suspicious death). Subsequently, the Revenue Divisional Officer made an enquiry and filed the report. The Investigating Officer, who done the investigation altered the offence into Sections 498-A and 306 of IPC. After investigation, laid a charge sheet before the learned Magistrate and subsequently, the case was committed to the trial Court, after completing the formalities, the trial Court framed charges as referred above. 19. The Investigating Officer, who done the investigation altered the offence into Sections 498-A and 306 of IPC. After investigation, laid a charge sheet before the learned Magistrate and subsequently, the case was committed to the trial Court, after completing the formalities, the trial Court framed charges as referred above. 19. A careful reading of the evidence of P.W.1 and P.W.2, the parents of the deceased, it could be seen that from the date of marriage, there was a demand even though there is no specific evidence for demand of dowry, but there was a demand of money for redeeming the gold jewels and also the demand of diamond stud at the time of ear boring ceremony. Since the parents of the deceased did not provide all the meets as and when they demanded, the accused 1 and 3/appellants herein used to scold the deceased and since she was not in a position to bear with the cruelty and does not want to give much trouble to her parents, because there was continuous cruelty, she committed suicide. P.W.3 is the sister of the deceased, P.W.4 is the maternal uncle of the deceased, P.W.5 is the maternal uncle of P.W.2. and they have also spoken about the demand and cruelty made by the appellants. 20. The contention of the learned counsel for the appellants is that there is no demand of dowry and all the witnesses P.W.1 to P.W.5 are independent witnesses and there are improvements and contradictions and hence, their evidence are not trustworthy. Though they have stated that the parents recovered the suicide note, but the witnesses have clearly denied regarding the recovery of the suicide note. In cases of this nature, presence of eyewitnesses are mostly improbable, no independent witness can be expected, because, it is a family dispute. Normally, unknown persons will not come to lead evidence against anyone of the family members and however, further, the deceased may not reveal all the things to other persons. Normally, the girl will inform directly to her mother, father and her sister only. Generally, instance of cruelty and harassment of demand of dowry remain within the personal knowledge of near relations and they would be best persons to speak about it. Normally, the girl will inform directly to her mother, father and her sister only. Generally, instance of cruelty and harassment of demand of dowry remain within the personal knowledge of near relations and they would be best persons to speak about it. In this case, the evidence of P.W.1 to P.W.3 shows that after the marriage, the first appellant by pledging the jewels, purchased a land and in order to redeem the pledged jewels, he demanded money from his wife, subsequently they have continuously demanded and also caused cruelty to the deceased. Though in this case, there is no eyewitness, P.W.1 to P.W.5 are the only hearsay evidence but however, from the evidence of P.W.2, it could be seen that the deceased gives the every activity of the appellants to her, viz., P.W.2, and even soon before commitment of suicide, she telephoned to her mother and talked about the demand made by the appellants and also expressed that she could not live without meeting out their demands and therefore, P.W.1 and P.W.2 somehow arranged a sum of Rs.60,000/- as against the demand of Rs.1,00,000/- and immediately rushed from virudhunagar to Chennai, which is nearly 520 kilometres distance and before they met their daughter, on the way itself, they received the phone call that their daughter was committed suicide. 21. It is the further contention of the learned counsel for the appellants that there is a delay in registering the FIR and also delay in sending the F.I.R to the Court, which is also a fatal to the case of the prosecution. Mere delay in sending FIR to the Court is not a fatal to the case of the prosecution, unless the genesis of the complaint is in doubt. The purpose behind sending FIR immediately to Magistrate has got dual purpose. Firstly, to avoid possibility introduction of any distorted version by deliberations and consultation and secondly, enabling the Magistrate concerned to watch the progress of the investigation. In this case, admittedly, it is the case of suicide and the parents of the deceased were not available at the time of occurrence and soon after the occurrence, they have reached and gave a complaint. Originally F.I.R was registered under Section 174 of Cr.P.C. for suspicious death and subsequently, after enquiry and report of the RDO, the case was altered into Section 498-A and 304-B of IPC. Originally F.I.R was registered under Section 174 of Cr.P.C. for suspicious death and subsequently, after enquiry and report of the RDO, the case was altered into Section 498-A and 304-B of IPC. Normally, the cases of this nature, procedure has to be adopted, like, the enquiry of the Revenue Divisional Officer, and inquest and also they have to find out the reason for suspicious death. The defence has not established that the complaint was not genuine and the delay in sending the FIR only in order to distorted version by consultation or deliberation. Therefore, the contention of the learned counsel for the appellants is rejected. 22. Insofar as the contention with regard to the demand of dowry is concerned, though the trial Court found that there was no demand of dowry, from evidence of P.W.1 to P.W.5, it is crystal clear that the deceased was abetted to commit suicide. Though the trial Court found that the allegations against A2 and A4 have not been substantiated, from the evidence of P.W.1 and P.W.2, the allegation against accused 1 and 3/present appellants have been substantiated. The first appellant is the husband and the second appellant is the mother of the first appellant. The evidence of interested witnesses is found to have creditworthiness, the conviction could be based on an uncorroborated testimony. In cases of this nature, the independent witness mostly will not support the case of the prosecution. If the evidence of the relative witnesses are cogent, credible and trustworthy, the conviction is permissible. The credibility of the witness does not depend upon their financial standing or social status alone. Though there are discrepancies and contradictions, which are not material contradictions, it will go to the root of the prosecution. 23. Further the occurrence not only took place on single occasion or single instance or single day and there was a continuous demand and cruelty. Initially, from the evidence of P.W.1 and P.W.2, it could be seen that the first accused assaulted the deceased for demanding money and the third accused assaulted her for not attending her day today work. The amount of Rs.1,00,000/- alleged to have been demanded by the first accused also deposited into the bank account of the third accused. Further, the third accused made problem in the ear boring function as deposed by the prosecution witnesses. The amount of Rs.1,00,000/- alleged to have been demanded by the first accused also deposited into the bank account of the third accused. Further, the third accused made problem in the ear boring function as deposed by the prosecution witnesses. Furthermore, a land was also alleged to have purchased by the first accused by pledging the jewels belonged to her. To redeem the said jewels, the first appellant demanded a sum of Rs.1,00,000/- from the deceased. Thereafter, the deceased called her mother over phone and informed that it is not possible for her to live in that house. Therefore, it is crystal clear that even soon before commitment of suicide, there was a demand of money and also cruelty. Even, the deceased soon before committing suicide, telephoned to her mother and spoken about the atrocities of the appellants and therefore, the prosecution has established its case that even soon before committing suicide, there was a quarrel, harassment and also cruelty. Though the trial Court found that it is not the specific demand of dowry, the evidence of P.W.1 to P.W.5, the offence committed by the appellants would fall offence under Section 498 A and also 306 of IPC. 24. Though the learned counsel for the appellants have stated that there are discrepancies and improvements, in this regard, it is relevant to mention here that every minute detail need not be mentioned in the FIR and also the each and every minute of the details cannot be given either in the statement before the Revenue Divisional Officer or in the statement made before the Police under Section 161 of Cr.P.C. and they cannot narrate in the F.I.R. and the FIR is not an encyclopaedia. Merely because, some minor instance not be mentioned in the complaint or in the F.I.R. or the statement before the Police cannot be termed as material contradictions. The cases of like this, the incidence, which is important only can be remembered, and re-collected and mentioned before the Authorities concerned. Mere non-mentioning of some minor incident also cannot be termed as improvements and discrepancies or contradictions, which may not affect the case of the prosecution. 25. The cases of like this, the incidence, which is important only can be remembered, and re-collected and mentioned before the Authorities concerned. Mere non-mentioning of some minor incident also cannot be termed as improvements and discrepancies or contradictions, which may not affect the case of the prosecution. 25. A careful reading of the evidence of P.W.1 to P.W.5 , as already stated above, their evidence cannot be brushed aside, since they are interested witnesses, who are relatives to the deceased, the evidence of interested witnesses, if found to have creditworthiness, conviction could be based on an uncorroborated testimony. Testimony of interested witness cannot be per se discarded and this Court has to adopt careful approach and analyse evidence to find out the cogency and credibility. In this case, it is a case of suicide and they only knew about the cruelty caused by the appellants to the deceased and they have abetted the deceased to commit suicide. Since because there is no eyewitness, their evidence cannot be simply thrown away and the trial Court rightly appreciated all the evidence. Though the trial Court found that the charges framed under Section 304 (B) dowry death was not established, but however rightly found that the appellants/accused 1 and 3 have committed the offences under Section 498-A and 306 of IPC. 26. Therefore, this Court as a final Court of fact finding, does not find any merit in the appeal and on appreciation of evidence, this Court has also come to the conclusion that the appellants/accused 1 and 3 have committed the offences under Section 498-A and 306 IPC and there is no merit in the Appeal and the Appeal is liable to be dismissed, accordingly, it is dismissed. The appellants deserve no sympathy as there is no mitigating circumstances to reduce the quantum of sentence imposed by the learned trial Judge. Consequently, connected miscellaneous petition is closed.