498 (A) and 302 I.P.C

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.12.2009

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH


CRIMINAL APPEAL NO.496 OF 2009



Susilkumar ..  Appellant

Vs.

State rep. by
Deputy Superintendent of Police,
District Crime Branch
Villupuram. ..  Respondent


This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District and Sessions Judge, Fast Track Court I, Tindivanam in S.C.No.109 of 2009 dated 28.07.2009.

For Appellant     :  Mr.V.Gopinath

For Respondent :  Mr.Babu Muthu Meeran, APP

- - - -


JUDGMENT

(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)


This appeal is directed against the judgment of conviction and sentence recorded by the lower court against the accused u/s. 498 (A) and 302 I.P.C. to undergo 2 years imprisonment and a fine of Rs.1000/- in default  3 months imprisonment and to undergo life imprisonment and a fine of Rs.1000/- in default to undergo 3 months imprisonment, respectively.

2. The case of the prosecution in short would be as follows:
(a) The accused was aged about 38 years who was searching a bride for his marriage and was contacting the parents of Varalakshmi since deceased and after completion of all the formalities of seeing the bride by the accused at the Omandur village, the accused took Varalakshmi for outing. They did not return to Omandur village and on 06.10.2006 Varalakshmi informed her parents about the marriage with the accused at Thirupathi Alamelu Mangapuram temple and when they returned to Omandur the parents of Varalakshmi also approved their marriage and both of them were living in the house belonging to one Vasanthapuram Selvaraj as tenants the accused developed consuming liquor and began to beat Varalakshmi demanding to pay for his expenditure and ill treated her by demanding dowry. In such a way he beat Varalakshmi on 06.12.2007 and he poured kerosene on her and lit fire on her and in the result she died on the spot.
(b) The neighbours gave complaint to the police and a case was registered in Cr.No.361/2007 by the respondent police and after completing the investigation charge sheet has been filed before the Judicial Magistrate Vanur and the case was taken on file in P.R.C. No.8/2009 and after completing the procedural formalities the case was committed to Sessions court and the learned Principal District Sessions Judge, Villupuram had taken the case on file in S.C.No.109/2009 and made over the case to Fast Track Court No.I for disposal in accordance with law.

3. The lower court had framed necessary charges and had commenced the trial. The prosecution examine 24 witnesses and 15 documents and two material objects in order to substantiate its case.

4. The case of the prosecution spoken through the witnesses of the prosecution would be as follows:
The accused is the husband of the deceased victim Varalakshmi. Alliance was found out by the brother of the deceased Varalakshmi through internet and after completing the formalities the accused had taken Varalakshmi with him on 11.09.2006 for an outing. When they went for outing in a subsequent occasion they did not return and the victim Varalakshmi had informed her parents on 06.10.2006 that she and the  accused had married themselves at Thirupathi Alamelu Mangapuram temple. They also returned to Omandur and the parents of Varalakshmi approved the marriage and gave the accused 3 sovereign of gold bangles and a sum of Rs.2000/-  to the newly married couple. They reside in 7th street, Vasanthapuram, Kurinji nagar at Omandur on rental basis and the accused had started consuming liquor and began to beat Varalakshmi demanding for money and ill-treated her. On 06.12.2007 he demanded Rs.1,50,000/- from deceased Varalakshmi and on that dispute he quarrelled with Varalakshmi and poured kerosene on her person and set fire. P.W.1 who was the neighbour living opposite to the house of Varalakshmi had heard the alarming sound raised by the deceased Varalakshmi at about 04.00 p.m on that day and went to the house and saw Varalakshmi was burnt and the accused was standing outside the house and was talking to somebody in his mobile phone. P.Ws.5, 6, 7 and 9 were also the neighbour of the deceased Varalkshmi and accused, knew the quarrel had in between the accused and the deceased Varalakshmi. The harassment meted out by the Varalakshmi at the hands of the accused were told by the deceased Varalakshmi to her P.W.2, their family friend-P.W.4, brother and sisters of the victim P.W.3, P.W.19 and P.W.20. The complaint was given by P.W.1, the neighbour to P.W.22 the Sub Inspector of Police, Auroville Police Station and it was registered in Cr.No.361/2007 u/s. 174 Cr.P.C. For suspicious death.
(b) In pursuance of the registration of the case the Revenue Divisional Officer P.W.21 had conducted inquest regarding the death of Varalakshmi since the deceased died in a suspicious circumstance caused by burn injuries within one and half years of their marriage. The investigator P.W.23 had commenced the investigation by examining the witness inspected the place of occurrence and recovered material objects in the presence of witnesses.  The investigator also collected blood samples at the place of occurrence and had altered the F.I.R for the offences u/s. 498 (A) and 302 I.P.C. as per the opinion of Revenue Divisional Officer P.W.21 in his report. The body of the deceased was sent by the investigator for conducting autopsy. P.W.10, Doctor, after conducting autopsy issued Post Mortem Certificate-  Ex.P.4. He had opined that the death was caused due to burn injuries sustained by the victim Varalakshmi. Subsequently the material objects collected were submitted by the investigator for chemical examinations. The second investigating officer P.W.24 had continued the investigation after the transfer of P.W.23 had collected all the reports and filed the charge sheet against the accused.

5. When the incriminating circumstances in the evidence adduced on the side of the prosecution against the accused were put and was examined u/s. 313 Cr.P.C, he had denied the evidence as false. However  no evidence was adduced on his side.

6. Learned Senior Counsel Mr.V.Gopinath would submit in his argument that the lower court had recorded conviction on both the charges framed by the lower court u/s. 498 (A) I.P.C and 302 I.P.C without sufficient evidence to convict the accused. He would further submit that there was no other evidence as per prosecution case and nothing was spoken by the witnesses of the prosecution to show that the accused was guilty of committing the murder of his wife. He would further submit that the alleged burn for dowry was not spoken by any of the witnesses and even the report of the Revenue Divisional Officer would prove that the accused did not demand any dowry either from the deceased woman nor from the parents of the deceased Varalakshmi and yet the accused was convicted under Section 498 A I.P.C. Apart from that he would further argue that the witnesses did not also speak about the demand of dowry and it was not proved before the court that the accused was demanding dowry and thereby committed the offence u/s. 498 (A) I.P.C. He would further submit in his argument that no reliance can be placed over Ex.P.1 complaint, since it was prepared by police after due deliberation. Actually police went to the spot and received the written complaint at the spot. P.W.1 would speak to the effect that she had put only her thumb impression. She did not speak about the giving of the complaint. He would also submit in his argument that the evidence of P.W.2 would go to show that the deceased Varalakshmi and the accused married on their own decision and they were living happily and there was no misunderstanding or quarrel in between them. Therefore the charge u/s. 498 (A) alleging dowry harassment and cruelty inflicted over the deceased woman has not legs to stand. He would also submit that the alleged harassment was not true and and there was no previous complaint against the accused made by the deceased and therefore the prosecution case that dowry harassment and cruelty on the deceased Varalakshmi resulted in the death of deceased Varalakshmi cannot be believed. He would further submit in his argument that the report of Revenue Divisional Officer filed in Ex.P.13 would show that the accused did not demand dowry from his wife and therefore the lower court ought to have found that there was no cruelty meted out by the deceased at the hands of the accused.

7. He would further submit in his argument the alleged arrest and recording of the confession leading to recovery cannot be sustained because it was a stage managed one. The non examination of the ocular witness would leave vacuum and it cannot be filled by the circumstantial evidence as adduced in this case. He would also submit that the circumstantial evidence produced by the prosecution was not completed and therefore the accused ought to have been acquitted and the appeal be allowed, thus.

8. Heard the learned Additional Public Prosecutor also.

9. On giving anxious thoughts to the arguments advancedon either side it could be seen that the deceased Varalakshmi and the accused were married after they acquainted each other through internet and the marriage had taken place in Thirupathi Alamelu Mangapuram temple and their marriage was also recognised by the parents of the deceased Varalakshmi. The accused was living with the deceased at Door No.4/1132 at 7th street, Kurunji nagar, Vasanthapuram, Omandur. P.Ws.1,5,6,7 and 9 who are the neighbours living in the said vicinity where the accused and the deceased were living have spoken to the effect that on 06.121.2007 at about 04.00 p.m they heard the screaming noise and also noticed the smoke coming from the house of the accused who was standing outside the house and was talking in his mobile phone casually. When they went inside the hall the deceased Varalakshmi was seen burnt all over her body and was lying to the floor on her anterior side of the body. Therefore a complaint was preferred by P.W.1 immediately to the police and the investigation was commenced. Admittedly there was no ocular evidence produced by the prosecution. The said complaint was received by the police from P.W.1 on the spot, as the accused did not give any complaint. According to the evidence of witnesses P.Ws.1,5,6,7 and 9 the accused was present at the place of occurrence. However it was denied by the accused in his reply during 313 questioning. He would give an explanation that the deceased Varalakshmi was having some troubles during new moon days and full moon days and she also used to harass the accused in such circumstances only she had also committed self immolation and for that he was not the cause of the incident. Whether it could be accepted is the question to be decided ?

10. According to the evidence of P.W.2 the father of the deceased Varalakshmi there he had received phone calls from the deceased daughter while she was living with the accused about the harassment inflicted by the accused against her. The deceased Varalakshmi used to inform him that the accused was drinking alcohol and her life was not settled properly. The explanation offered by the accused in his 313 questioning was not put forth nor suggested in the cross examination of P.W.2. P.W.3 is the sister of the deceased Varalakshmi and she would also corroborate the evidence of P.W.2 her father. Nothing was suggested to her regarding the alleged attitude of the deceased Varalakshmi during new moon and full moon days.

11. In these circumstances, the inquest conducted by the Revenue Divisional Officer  P.W.21 in his report in Ex.P.13 and speak that the accused had harassed the deceased Varalakshmi to bring money for his expenditure and the accused was also having the habit of drinking alcohol and quarrelling with the deceased Varalakshmi. It is also spoken by P.W.21 that whiled the deceased Varalakshmi was burning inside the house the accused was keeping quiet without taking steps to quench the fire or save her.

12. The evidence of Doctor P.W.10 who conducted autopsy would go to show that the death of deceased Varalakshmi was caused due to the burn injuries sustained by her and the death would have occurred 18 to 32 hours prior to the time of autopsy performed at 05.00 p.m on 07.12.2007. In the Post Mortem Certificate Ex.P.4 was produced by P.W.10 on a careful perusal of the said document we could see the burn injuries sustained by the deceased Varalakshmi was 100%. Therefore, there could not be any dispute that the death of Varalakshmi was caused due to the burn injuries sustained by her. The cause of the injury was stated to be pouring kerosene on her person and liting on fire. The chemical reports produced in Ex.P.5, P.7 and Ex.P.8 would prove that kerosene was used on the body of the deceased Varalakshmi for promoting fire and therefore Kerosene was poured on her body and the fire was ignited for getting burn injuries all over the body of the deceased.

13. It is the evidence of P.Ws.1,5,6,7 and 9,  the neighbours that the accused was standing quietly speaking in his mobile phone they also saw the smoke coming out from the house of the accused and they found the body of the deceased Varalakshmi inside the house, with full of burn injuries. The evidence would show that if really the deceased Varalakshmi had poured kerosene and set fire herself the accused would have attempted to save her from the burn injuries and it would not have gone up to 100% of burn injuries. The deceased Varalakshmi was working in Bombay for several years before her marriage and she returned to her native place for getting marriage. Thereafter, the accused was found through internet and marriage was solemnised in between them and she was leading quite a happy life during her earlier days of marriage and thereafter she had been harassed by the accused after consuming liquor.

14.  All the evidence placed before the trial court are pointing towards the accused who was present along with the deceased Varalakshmi at the house during the time of occurrence. The accused who is under the obligation of explaining the cause of death  of deceased Varalakshmi had not given any proper explanation. There is no doubt that he was last seen at the house along with Varalakshmi. The explanation offered by the accused in his 313 questioning is found to be not acceptable since it was not put forth either to her father, P.W.2 nor to her sister P.W.3. None of the witnesses namely P.Ws.1,5,6,7 and 9 had spoken about the alleged disability of the deceased Varalakshmi. If it is a self immolation for committing suicide or due to the alleged disability of the deceased, the accused who was present at the house with the deceased would have attempted to quench the fire or to raise alarm for help from the neighbours. Buthe was seen by the witnesses P.W.1m5,6,7 and 9, talking in a cell phone. The 100% burn injuries sustained by the deceased would also disprove the case of the accused. Therefore, the explanation of the accused cannot be accepted at any stretch of imagination.

15. In the aforesaid circumstances, it is the accused who failed to explain the death of deceased Varalakshmi would be the cause for the death of deceased Varalakshmi. The 100% burn injuries found on the body of the deceased would go a long way to show it is the accused who had poured kerosene on the body of the deceased Varalakshmi and lit fire. That is why the accused did not attempt to save her or to quench the fire or to take the deceased who sustained burn injuries to the hospital or to give complaint to the police. In the aforesaid circumstances, the finding of the lower court that the accused was the cause for the murder of the deceased wife Varalakshmi is unassailable.

16. However the lower court had come to the conclusion of finding the accused guilty u/s. 498(A). The evidence of the father P.W.2 and sister P.W.3 would go to show that the harassment meted out by the deceased Varalakshmi was to the effect of demanding money from her and there was no demand of dowry from the parents of the deceased Varalakshmi in consideration of his marriage with deceased Varalakshmi. The evidence of P.W.21 Revenue Divisional Officer would also disclose that there was no dowry harassment. Therefore the finding of the lower court that the accused was guilty of offence u/s. 498(A) I.P.C is not sustainable.

17.  For the foregoing discussions, we are of the considered opinion that the conviction and sentence passed against the accused u/s. 302 I.P.C. is confirmed and accordingly stands unaltered.

18. Thus the appeal is partly allowed setting aside the conviction and sentence passed against the accused u/s. 498(A) I.P.C. The  conviction and sentence passed u/s. 302 I.P.C. stands confirmed and the appeal in this regard is dismissed. The fine amount if any paid for the offence u/s. 498 (A) I.P.C shall be returned to the appellant.

         (M.C.,J.)   (V.P.K.,J.)
        02.12.2009
Index : Yes/No
Internet : Yes/No
kpr


To
1. The Additional District and Sessions Judge,
       Fast Track Court I, Tindivanam.

   2. Deputy Superintendent of Police,
       District Crime Branch
       Villupuram

3. The Public Prosecutor,
    High Court, Chennai.











M.CHOCKALINGAM,J.
    and
V.PERIYA KARUPPIAH,J.
          Kpr

















Crl.A.No.496 of 2009


















02.12.2009.