498(A), 302 r/w 109 and 201 IPC

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.632 of 2009


Balasubramanian  ..Appellant


Vs.

State by
Inspector of Police,
Vetharanyam Police Station,
(Crime No.36/2006)          ..Respondent

This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Sessions Judge, Nagapattinam, made in S.C.No.111 of 2007 dated  10.7.2009.
For Appellant     :  Mr.S.Kingston Jerold

For Respondent  :  Mr.Babu Muthu Meeran, Addl.P.P

J U D G M E N T

(The judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal challenges the judgment of the Sessions Division, Nagapattinam, made in S.C.No.111/2007 whereby the sole accused/appellant  stood charged, tried and found guilty under section 498(A), 302 r/w 109 and 201 IPC and awarded three years rigorous imprisonment, life imprisonment and 5 years rigorous imprisonment respectively along with fine and default sentences. The sentences are ordered to run concurrently.

2. The short facts necessary for the disposal of this appeal can be stated as follows:

(a) The appellant married the deceased Banumathi on 24.10.2005. P.W.1 is the sister of the deceased. At  the  time  of  marriage, 15 sovereign  of  gold  jewels  and    the  house  hold  goods were given. On 22.1.2006, when P.W.1 was in his house, he was informed  by one of his friends that his sister was missing. When he came in search of his sister, at about 3.00 or 3.30 p.m., he was informed by the fishermen that a dead body of a lady was found in the Tank. The dead body was removed from the tank. On seeing that it was his sister, P.W.1 went to the Police Station and gave a complaint. On the strength of Ex.P.1 complaint, a case in Crime No.36 of 2006  came to be registered under section 174 Cr.P.C. by P.W.10, Sub Inspector of Police.  The express F.I.R., Ex.P9 was despatched to Court.
(b) Since the death of the deceased had occurred within a short span of time i.e., three months from the date of marriage, a copy of the F.I.R was sent to P.W.11, R.D.O. for enquiry.  P.W.11 went to the spot and conducted inquest on the dead body of the deceased and prepared Ex.P10 inquest report. He recovered the material objects from the place of occurrence and from the dead body of the deceased. He also examined the witnesses and recorded their statement.

(c) The dead body was subjected to post mortem. On receipt of the requisition, P.W.7 doctor conducted autopsy on the dead body of the deceased and issued Ex.P3, post mortem certificate wherein he has opined that the deceased would appear to have died of asphyxia due to suffocation 24 to 36 hours prior to autopsy.

(d) On 26.1.2006, when P.W.8, Village Administrative officer was in his Office, the appellant along with his mother appeared before him and gave the confessional statement. The same was recorded and marked as Ex.P6.  P.W.8 prepared his report, Ex.P7 and took both the accused to the Police Station and produced them before the police along with Exs.P6 and P7. On receipt of the same, the case was altered to sections 498(A), 304(B) and 302 IPC.
(e) Further, P.Ws. 2 to 5 came forwarded with the statement that on the date of occurrence at about 8.30 p.m., when they were just proceedings through the house of the deceased, they heard a distress cry and they peeped into the house, at that time, they saw the mother of the appellant thrusting the boiled rice into the mouth of the deceased and caused suffocation. Thereafter, they left the place.  The statement given by P.Ws. 2 to 5 were recorded and  sent to Court. The material objects were subjected to analysis and reports were received and placed before the Court.  On completion of the investigation, the investigating officer filed a final report.

(f) The case was committed to the Court of Sessions. Necessary charges were framed. After framing of the charges, A1/ mother of the appellant, died  and the case was proceeded as against the appellant as the sole accused. In order to substantiate the charges levelled against the accused, the prosecution examined 12 witnesses and relied on 13 exhibits and 17 material objects. On completion of the evidence on the side of the prosecution witnesses, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution and he denied them as false. No defence witness was examined. On hearing the arguments advanced on either side, the trial Court found the accused guilty under sections  498(A), 302 r/w 109 and 201 IPC and awarded the sentence as referred to above. Hence, this appeal at the instance of the appellant.

3. Advancing the arguments on  behalf of the appellant the learned counsel would submit, in the instant case, the prosecution has miserably failed to prove its case. The gist of the case of the prosecution was that the accused/appellant along with his mother harassed the deceased Banumathi, wife of the appellant for not satisfying the dowry demand. It is also the further case of the prosecution that at the time of occurrence, the mother-in-law of the deceased thrust the boiled rice into the mouth of the deceased and caused asphyxia and thereby caused her death and in order to screen the evidence, both the accused took the dead body of the deceased and thrown it into the tank. The dead body was taken out from the tank by the third parties. In order to substantiate the above charges insofar as the dowry harassment was concerned, there was no evidence at all.

4. Added further learned counsel, insofar as  causing death was concerned, the  prosecution relied upon   the  evidence of P.Ws. 2, 3 and 4. Their statement was recorded on 26.1.2006. According to all the three witnesses, when they were proceeding in the street,  they heard the distress cry of the deceased and they peeped into the house and at that time, they witnessed the mother of the appellant, thrusting the boiled rice into the mouth of the deceased and caused suffocation. So far as the conduct of these three witnesses are concerned, all these three persons have not spoken or whispered about the same to P.W.1 or anybody for a period of 4 days which would cast a doubt. Had they really witnessed such an occurrence on 21.1.2006, they would have immediately informed it to P.W.1. It is pertinent to point out that all the three witnesses belonged to the place where P.W.1 was residing and they were all known to P.W.1. All would clearly indicate that their statements were recorded by the investigator in order to strengthen the case as possible, but in vain.

5. Added further learned counsel another part of the prosecution is the extra judicial confession alleged to have been given by both the accused to P.W.8 Village Administrative Officer. The extra judicial confession was marked as Ex.P6 and the report of the Village Administrative Officer was marked as Ex.P7. A perusal of these two documents Exs.P6 and P7 would clearly indicate that those documents were fabricated. Originally, the date was mentioned as 24.1.2006  and subsequently, it was altered to 26.1.2006. The corrections had been carried out in the entire documents which would clearly indicate that both the  accused could not have appeared before the P.W.8/Village Administrative Officer or given such a statement to P.W.8 and the prosecution had no explanation in that regard. This would clearly indicate that these   documents, Exs.P6 and P7 and the statement of P.Ws. 2 to 5 which were recorded on 26.1.2006 were all cooked up for the purpose of the prosecution case.

6. Added further learned counsel, in the instant case, after the charges were framed, the mother-in-law of the deceased, died. Thus the accused /appellant alone faced the trial. The charges levelled against the appellant was that he harassed his wife demanding dowry; that he was a passive spectator at the time of occurrence when his mother thrust the boiled rice into the mouth of the deceased and that he joined with his mother and thrown the dead body in the tank. Insofar as these three charges are concerned, the prosecution has miserably failed to prove the same through the above evidence. The trial Court has taken an erroneous view and rendered the judgment of conviction. Under such circumstances, the appellant is entitled for acquittal at the hands of this Court.

7. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

8. It is not in controversy that one Banumathi, wife of the appellant was found dead in a tank. On coming to know about the same, the brother of the deceased, P.W.1   gave a complaint, Ex.P1 which was registered in Crime No.36/2006 under section 174 Cr.P.C. subsequently, altered to sections 498(A) and 304(B)  IPC. Following the inquest made, the dead body of Banumathi was subjected to post mortem.  P.W.7, doctor attached to the Government Hospital conducted autopsy and gave his opinion through the contents of the post mortem certificate, Ex.P3 and as a witness before the Court that the deceased would appear to have died of asphyxia due to suffocation. The cause of death as putforth by the prosecution was never disputed by the appellant before the trial Court or before this Court. Hence, it could be safely recorded that the deceased died out of homicidal violence.

9. In order to substantiate the charges namely, dowry harassment, cause of death and also screening the evidence , the prosecution relied on two pieces of evidence, namely P.Ws. 2, 3 and 4 as eye witnesses and also the extra judicial confession alleged to have been given by the appellant and his mother to P.W.8 , Village Administrative Officer.  On careful scrutiny of the evidence putforth by the prosecution before the trial Court, it would show that these evidence are not free from doubts.
10. So far as P.Ws. 2 to 4 are concerned, they belonged to the place of P.W.1 and they were all well acquainted to P.W.1. According to P.Ws. 2 to 4 when they were crossing the house of the deceased, they heard the distress cry of the deceased and they peeped inside the house and found the mother-in-law of the deceased thrusting the boiled rice into the mouth of the deceased and caused suffocation and the deceased fell down.  Had they really witnessed such an occurrence, they would have informed the same to P.W.1 or to anybody else in the village but they have not done so. They have kept silent for a period of 4 days. Hence, a reasonable doubt would arise. This would clearly indicate the fact that they could not have seen such an incident at all.  Therefore, their evidence has got to be rejected.

11. Insofar as the other part of the evidence viz., evidence of  P.W.8-V.A.O. is concerned, it is highly doubtful.  P.W.8 would claim that  when he was in his office, the appellant and his mother came there and gave confessional statement and the same was recorded under Ex.P6. He also prepared a report Ex.P7 and produced both the accused before the police along with the documents Exs.P6 & P7.  In the documents, originally the date was mentioned as 24.1.2006 and thereafter, it was altered as 26.1.2006. This correction was carried out throughout the documents.   This would clearly indicate that these documents could not have come into existence on 26.1.2006 as put forth by the prosecution. Hence, it could be inferred that after the accused persons were secured by the police, the service of the Village Administrative Officer was taken in order to prepare these documents Exs.P6 & P7. In view of the doubt  in these documents, the Court is unable to agree with the case of the prosecution. Apart from the evidence of P.Ws.2 to 4 and the extra judicial confession alleged to have given by the accused which were doubtful, the prosecution has no further evidence to offer.

12. So far as dowry harassment is concerned, there is no iota of evidence in that regard.  So far as the other two charges framed against the appellant are concerned, the evidence adduced through the prosecution are filled with doubts. The Court is of the considered opinion that  it would be unsafe to sustain the conviction on the above evidence and the accused is entitled for acquittal. Hence, the judgment of the trial Court has got to be made undone by upsetting the same.

13. Accordingly, the criminal appeal is allowed. The judgment of conviction and sentence imposed on the appellant by the  trial Court is set aside. The appellant is acquittal of the charges levelled against him. The appellant is directed to be released forthwith unless his presence is required in connection with any other case. Fine amount, if any paid  by the appellant shall be refunded to him.










vsi

To

1. The Sessions Judge, Nagapattinam

2. The Inspector of Police,
     Vetharanyam Police Station, Nagapattinam.

3. The Public Prosecutor,
    High Court,
    Chennai