Susilkumar v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.12.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL NO.496 OF 2009Susilkumar.. Appellant/AccusedVs.State rep. byDeputy Superintendent of Police,District Crime BranchVillupuram... Respondent/Complainant(Crime No.361 of 2007)This criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Additional District and SessionsJudge, Fast Track Court I, Tindivanam in S.C.No.109 of 2009 dated28.07.2009.For Appellant : Mr.V.Gopinath, Senior Counsel for Mr.L.MahendranFor Respondent : Mr.Babu Muthu Meeran, APPJUDGMENT(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)This appeal is directed against the judgment of conviction andsentence 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 ofRs.1000/- in default 3 months imprisonment and to undergo lifeimprisonment and a fine of Rs.1000/- in default to undergo 3 monthsimprisonment, respectively.2. The case of the prosecution in short would be as follows:(a) The accused was aged about 38 years who was searching abride for his marriage and was contacting the parents of Varalakshmisince deceased and after completion of all the formalities of seeingthe bride by the accused at the Omandur village, the accused tookVaralakshmi for outing. They did not return to Omandur village and on https://hcservices.ecourts.gov.in/hcservices/

06.10.2006 Varalakshmi informed her parents about the marriage withthe accused at Thirupathi Alamelu Mangapuram temple and when theyreturned to Omandur the parents of Varalakshmi also approved theirmarriage and both of them were living in the house belonging to oneVasanthapuram Selvaraj as tenants the accused developed consumingliquor and began to beat Varalakshmi demanding to pay for hisexpenditure and ill treated her by demanding dowry. In such a way hebeat Varalakshmi on 06.12.2007 and he poured kerosene on her and litfire on her and in the result she died on the spot.(b) The neighbours gave complaint to the police and a case wasregistered in Cr.No.361/2007 by the respondent police and aftercompleting the investigation charge sheet has been filed before theJudicial Magistrate Vanur and the case was taken on file in P.R.C.No.8/2009 and after completing the procedural formalities the casewas committed to Sessions court and the learned Principal DistrictSessions Judge, Villupuram had taken the case on file inS.C.No.109/2009 and made over the case to Fast Track Court No.I fordisposal in accordance with law.3. The lower court had framed necessary charges and hadcommenced the trial. The prosecution examine 24 witnesses and 15documents and two material objects in order to substantiate its case.4. The case of the prosecution spoken through the witnesses ofthe 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 Varalakshmithrough internet and after completing the formalities the accused hadtaken Varalakshmi with him on 11.09.2006 for an outing. When theywent for outing in a subsequent occasion they did not return and thevictim Varalakshmi had informed her parents on 06.10.2006 that sheand the accused had married themselves at Thirupathi AlameluMangapuram temple. They also returned to Omandur and the parents ofVaralakshmi approved the marriage and gave the accused 3 sovereign ofgold bangles and a sum of Rs.2000/- to the newly married couple.They reside in 7th street, Vasanthapuram, Kurinji nagar at Omandur onrental basis and the accused had started consuming liquor and beganto beat Varalakshmi demanding for money and ill-treated her. On06.12.2007 he demanded Rs.1,50,000/- from deceased Varalakshmi and onthat dispute he quarrelled with Varalakshmi and poured kerosene onher person and set fire. P.W.1 who was the neighbour living oppositeto the house of Varalakshmi had heard the alarming sound raised bythe deceased Varalakshmi at about 04.00 p.m on that day and went tothe house and saw Varalakshmi was burnt and the accused was standingoutside 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 Varalkshmiand accused, knew the quarrel had in between the accused and thedeceased Varalakshmi. The harassment meted out by the Varalakshmi at https://hcservices.ecourts.gov.in/hcservices/ the hands of the accused were told by the deceased Varalakshmi to herP.W.2, their family friend-P.W.4, brother and sisters of the victimP.W.3, P.W.19 and P.W.20. The complaint was given by P.W.1, theneighbour to P.W.22 the Sub Inspector of Police, Auroville PoliceStation and it was registered in Cr.No.361/2007 u/s. 174 Cr.P.C. Forsuspicious death.(b) In pursuance of the registration of the case the RevenueDivisional Officer P.W.21 had conducted inquest regarding the deathof Varalakshmi since the deceased died in a suspicious circumstancecaused by burn injuries within one and half years of their marriage.The investigator P.W.23 had commenced the investigation by examiningthe witness inspected the place of occurrence and recovered materialobjects in the presence of witnesses. The investigator alsocollected blood samples at the place of occurrence and had alteredthe F.I.R for the offences u/s. 498 (A) and 302 I.P.C. as per theopinion of Revenue Divisional Officer P.W.21 in his report. The bodyof the deceased was sent by the investigator for conducting autopsy.P.W.10, Doctor, after conducting autopsy issued Post MortemCertificate- Ex.P.4. He had opined that the death was caused due toburn injuries sustained by the victim Varalakshmi. Subsequently thematerial objects collected were submitted by the investigator forchemical examinations. The second investigating officer P.W.24 hadcontinued the investigation after the transfer of P.W.23 hadcollected all the reports and filed the charge sheet against theaccused.5. When the incriminating circumstances in the evidence adducedon the side of the prosecution against the accused were put and wasexamined 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 hisargument that the lower court had recorded conviction on both thecharges framed by the lower court u/s. 498 (A) I.P.C and 302 I.P.Cwithout sufficient evidence to convict the accused. He would furthersubmit that there was no other evidence as per prosecution case andnothing was spoken by the witnesses of the prosecution to show thatthe accused was guilty of committing the murder of his wife. He wouldfurther submit that the alleged burn for dowry was not spoken by anyof the witnesses and even the report of the Revenue DivisionalOfficer would prove that the accused did not demand any dowry eitherfrom the deceased woman nor from the parents of the deceasedVaralakshmi and yet the accused was convicted under Section 498 AI.P.C. Apart from that he would further argue that the witnesses didnot also speak about the demand of dowry and it was not proved beforethe court that the accused was demanding dowry and thereby committedthe offence u/s. 498 (A) I.P.C. He would further submit in hisargument that no reliance can be placed over Ex.P.1 complaint, sinceit was prepared by police after due deliberation. Actually police https://hcservices.ecourts.gov.in/hcservices/ 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 thumbimpression. She did not speak about the giving of the complaint. Hewould also submit in his argument that the evidence of P.W.2 would goto show that the deceased Varalakshmi and the accused married ontheir own decision and they were living happily and there was nomisunderstanding or quarrel in between them. Therefore the chargeu/s. 498 (A) alleging dowry harassment and cruelty inflicted over thedeceased woman has not legs to stand. He would also submit that thealleged harassment was not true and and there was no previouscomplaint against the accused made by the deceased and therefore theprosecution case that dowry harassment and cruelty on the deceasedVaralakshmi resulted in the death of deceased Varalakshmi cannot bebelieved. He would further submit in his argument that the report ofRevenue Divisional Officer filed in Ex.P.13 would show that theaccused did not demand dowry from his wife and therefore the lowercourt ought to have found that there was no cruelty meted out by thedeceased at the hands of the accused. 7. He would further submit in his argument the alleged arrestand recording of the confession leading to recovery cannot besustained because it was a stage managed one. The non examination ofthe ocular witness would leave vacuum and it cannot be filled by thecircumstantial evidence as adduced in this case. He would also submitthat the circumstantial evidence produced by the prosecution was notcompleted and therefore the accused ought to have been acquitted andthe appeal be allowed, thus.8. Heard the learned Additional Public Prosecutor also.9. On giving anxious thoughts to the arguments advancedon eitherside it could be seen that the deceased Varalakshmi and the accusedwere married after they acquainted each other through internet andthe marriage had taken place in Thirupathi Alamelu Mangapuram templeand their marriage was also recognised by the parents of the deceasedVaralakshmi. The accused was living with the deceased at DoorNo.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 vicinitywhere the accused and the deceased were living have spoken to theeffect that on 06.121.2007 at about 04.00 p.m they heard thescreaming noise and also noticed the smoke coming from the house ofthe accused who was standing outside the house and was talking in hismobile phone casually. When they went inside the hall the deceasedVaralakshmi was seen burnt all over her body and was lying to thefloor on her anterior side of the body. Therefore a complaint waspreferred by P.W.1 immediately to the police and the investigationwas commenced. Admittedly there was no ocular evidence produced bythe prosecution. The said complaint was received by the police fromP.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 https://hcservices.ecourts.gov.in/hcservices/ was present at the place of occurrence. However it was denied by theaccused in his reply during 313 questioning. He would give anexplanation that the deceased Varalakshmi was having some troublesduring new moon days and full moon days and she also used to harassthe accused in such circumstances only she had also committed selfimmolation and for that he was not the cause of the incident. Whetherit could be accepted is the question to be decided ?10. According to the evidence of P.W.2 the father of thedeceased Varalakshmi there he had received phone calls from thedeceased daughter while she was living with the accused about theharassment inflicted by the accused against her. The deceasedVaralakshmi used to inform him that the accused was drinking alcoholand her life was not settled properly. The explanation offered by theaccused in his 313 questioning was not put forth nor suggested in thecross examination of P.W.2. P.W.3 is the sister of the deceasedVaralakshmi and she would also corroborate the evidence of P.W.2 herfather. Nothing was suggested to her regarding the alleged attitudeof the deceased Varalakshmi during new moon and full moon days.11. In these circumstances, the inquest conducted by the RevenueDivisional Officer P.W.21 in his report in Ex.P.13 and speak thatthe accused had harassed the deceased Varalakshmi to bring money forhis expenditure and the accused was also having the habit of drinkingalcohol and quarrelling with the deceased Varalakshmi. It is alsospoken by P.W.21 that whiled the deceased Varalakshmi was burninginside the house the accused was keeping quiet without taking stepsto quench the fire or save her.12. The evidence of Doctor P.W.10 who conducted autopsy would goto show that the death of deceased Varalakshmi was caused due to theburn injuries sustained by her and the death would have occurred 18to 32 hours prior to the time of autopsy performed at 05.00 p.m on07.12.2007. In the Post Mortem Certificate Ex.P.4 was produced byP.W.10 on a careful perusal of the said document we could see theburn injuries sustained by the deceased Varalakshmi was 100%.Therefore, there could not be any dispute that the death ofVaralakshmi was caused due to the burn injuries sustained by her. Thecause of the injury was stated to be pouring kerosene on her personand liting on fire. The chemical reports produced in Ex.P.5, P.7 andEx.P.8 would prove that kerosene was used on the body of the deceasedVaralakshmi for promoting fire and therefore Kerosene was poured onher body and the fire was ignited for getting burn injuries all overthe body of the deceased.13. It is the evidence of P.Ws.1,5,6,7 and 9, the neighboursthat the accused was standing quietly speaking in his mobile phonethey also saw the smoke coming out from the house of the accused andthey found the body of the deceased Varalakshmi inside the house,with full of burn injuries. The evidence would show that if really https://hcservices.ecourts.gov.in/hcservices/ the deceased Varalakshmi had poured kerosene and set fire herself theaccused would have attempted to save her from the burn injuries andit would not have gone up to 100% of burn injuries. The deceasedVaralakshmi was working in Bombay for several years before hermarriage and she returned to her native place for getting marriage.Thereafter, the accused was found through internet and marriage wassolemnised in between them and she was leading quite a happy lifeduring her earlier days of marriage and thereafter she had beenharassed by the accused after consuming liquor.14. All the evidence placed before the trial court are pointingtowards the accused who was present along with the deceasedVaralakshmi at the house during the time of occurrence. The accusedwho is under the obligation of explaining the cause of death ofdeceased Varalakshmi had not given any proper explanation. There isno doubt that he was last seen at the house along with Varalakshmi.The explanation offered by the accused in his 313 questioning isfound to be not acceptable since it was not put forth either to herfather, P.W.2 nor to her sister P.W.3. None of the witnesses namelyP.Ws.1,5,6,7 and 9 had spoken about the alleged disability of thedeceased Varalakshmi. If it is a self immolation for committingsuicide or due to the alleged disability of the deceased, the accusedwho was present at the house with the deceased would have attemptedto 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 cellphone. The 100% burn injuries sustained by the deceased would alsodisprove the case of the accused. Therefore, the explanation of theaccused cannot be accepted at any stretch of imagination.15. In the aforesaid circumstances, it is the accused who failedto explain the death of deceased Varalakshmi would be the cause forthe death of deceased Varalakshmi. The 100% burn injuries found onthe body of the deceased would go a long way to show it is theaccused who had poured kerosene on the body of the deceasedVaralakshmi and lit fire. That is why the accused did not attempt tosave her or to quench the fire or to take the deceased who sustainedburn injuries to the hospital or to give complaint to the police. Inthe aforesaid circumstances, the finding of the lower court that theaccused was the cause for the murder of the deceased wife Varalakshmiis unassailable.16. However the lower court had come to the conclusion offinding the accused guilty u/s. 498(A). The evidence of the fatherP.W.2 and sister P.W.3 would go to show that the harassment meted outby the deceased Varalakshmi was to the effect of demanding money fromher and there was no demand of dowry from the parents of the deceasedVaralakshmi in consideration of his marriage with deceasedVaralakshmi. The evidence of P.W.21 Revenue Divisional Officer wouldalso disclose that there was no dowry harassment. Therefore thefinding of the lower court that the accused was guilty of offence https://hcservices.ecourts.gov.in/hcservices/ u/s. 498(A) I.P.C is not sustainable. 17. For the foregoing discussions, we are of the consideredopinion that the conviction and sentence passed against the accusedu/s. 302 I.P.C. is confirmed and accordingly stands unaltered. 18. Thus the appeal is partly allowed setting aside theconviction and sentence passed against the accused u/s. 498(A) I.P.C.The conviction and sentence passed u/s. 302 I.P.C.standsconfirmed and the appeal in this regard is dismissed. The fine amountif any paid for the offence u/s. 498 (A) I.P.C shall be returned tothe appellant. Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarkprTo1. The Additional District and Sessions Judge, Fast Track Court I, Tindivanam.2.-do- Thro The Principal Sessions Judge, Villupuram.3. The Deputy Superintendent of Police, District Crime Branch, Villupuram.4.The Superintendent, Central Prison, Cuddalore.5.The Collector, Villupuram District.6.The Director General of Police, Chennai-4.7. The Public Prosecutor, High Court, Chennai.1 cc to Mr.L.Mahendran, Advocate, Sr.No.66073 Crl.A.No.496 of 2009MS {CO}TP/12.1.2010.