Ramesh.. v. State rep. byInspector of PoliceTaluk Police StationKrishnagiri

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 09.11.2011CORAMTHE HONOURABLE MR.JUSTICE C.T.SELVAMCrl.R.C.No.1034 of 2009Ramesh.. Petitioner VsState rep. byInspector of PoliceTaluk Police StationKrishnagiri .. Respondent Criminal Revision Case filed against the judgment dated16.10.2008 made in C.A.No.94/2007 on the file of AdditionalDistrict and Sessions Judge, Krishnagiri confirming the judgmentdated 18.07.2007 made in S.C.No.134/2006 on the file of PrincipalAssistant Sessions Judge, Krishnagiri. For Petitioner : Mr.P.Ezhil NilavanFor Respondent : Mr.A.N.Thambi Durai Addl.Public ProsecutorO R D E RThis revision arises against two concurrent judgment ofcourts below convicting the petitioner for offences under Section304(B), 498(A) and Section 4 of D.P.Act.2. The prosecution case was that the petitioner/accused is aresident of Moramadugu village in Krishnagiri district. Thepetitioner and the deceased were married 4 years prior to thedeath of the deceased. After the marriage, the couple wereinitially at Bangalore and thereafter they settled at Moramaduguvillage. A dispute arose between the deceased and the petitioneras he had pledged her gold jewels. In the course thereof, thepetitioner on several occasions demanded monies from the deceasedand subjected her to cruelty with such wrongful intent. Petitionercaused hurt and intimidated the deceased by beating the deceasedwith a stick on her head and stating that nobody could questionhim in circumstance where when she could not bring money. He askedher to run away from the house before he came back as otherwise,he would murder her. Immediately, thereafter the deceased poured https://hcservices.ecourts.gov.in/hcservices/ kerosene over her body set herself on fire. She died at theGovernment hospital Krishnagiri at about 7.10 a.m on 10.09.2004.Petitioner was charged under Section 498(A), 304(B) of I.P.C andSection 4 of Dowry Prevention Act. 3. Before the Trial Court prosecution examined 17 witnessesmarked 18 Exhibits and one material object.4. Under judgment in S.C.No.134 of 2006 on the file ofAssistant Sessions Court, (Principal Sub court), Krishnagiri dated18.07.2007, the trial court on appreciation of evidence, convictedthe petitioner and sentenced him to undergo 5 years rigorousimprisonment for offence under section 304(B) I.P.C, one yearsimple imprisonment for offence u/s. 498(A) and 3 months simpleimprisonment and fine Rs.500/- in default two months simpleimprisonment for offence u/s.4 of the D.P.Act. There against thepetitioner preferred appeal in C.A.No.94 of 2007 which came to bedismissed under judgment of the Additional District and SessionsJudge, Krishnagiri dated 16.10.2008. There against this revision.5. Heard the learned counsel for the petitioner and thelearned Additional Public Prosecutor for the respondent.6. Learned counsel for the petitioner submits that the courtsbelow have taken a totally erroneous approach in appreciation ofevidence and they have ignored that which is directly in favour ofthe petitioner and which would show that no offence as allegedstands made out. P.W.7- Doctor, who examined the deceased at heradmission to the Krishnagiri Government hospital on 02.09.2004,has deposed that the deceased informed of having set herself onfire by pouring kerosene, owing to stomachache. On intimation fromhospital statement u/s.164 Cr.P.C was recorded by the JudicialMagistrate-P.W.15. While the deceased was admitted in hospital at4.00 p.m on 02.09.2004 her 164 Cr.P.C statement had been recordedat 5.00 p.m. The same disclosed that there was a dispute betweenthe deceased and petitioner/husband regarding his visiting thehouse of another women, that he had slapped her and that owing tofear and anguish that the petitioner may chase her out of thehouse she had attempted self immolation. It is only in Ex.P.11 astatement recorded from her by P.W.13 Head Constable at 6.30 p.mon 03.09.2004 at the hospital the allegation of thepetitioner having scolded the deceased and beaten her with awooden log for not having the capacity to bring money is found.Even such statement reflects the dispute over the petitionervisiting another lady and that she had attempted suicide out ofanguish over the fact that on the one hand the petitioner hadasked her to go away informing that he would murder her and on theother that it would be difficult for her to be in parental home.7. Learned counsel would state that the narration in Ex.P.11 https://hcservices.ecourts.gov.in/hcservices/ recorded by P.W.13 Head Constable relating to mentioning of moneyand beating with a wooden log are embellishments provided by thepolice agency and the truthful position is found in the earlierstatements recorded. The attester to Ex.P.11 Doctor has not beenexamined. Though wooden log allegedly recovered has been put upas M.O.1. Two attesters to the recovery mahazar have not beenexamined except for the interested testimony of P.W.1 and motherof the deceased, since they have spoken in favour of theprosecution case. P.W.2 father of the deceased, P.W.3 uncle of thedeceased, P.W.4 sister of the accused and P.W.8 a neighbour haveall turned hostile to the prosecution case.8. Learned counsel would state that the narration in Ex.P.11recorded by P.W.13 Head Constable informing of the petitionerhaving beat the deceased owing to her not having brought money isa mere embellishment provided by the police agency and the trueposition is found in the statements earlier recorded. FIR has beenregistered pursuant to Ex.P.11. According to the prosecution,Ex.P.11 was recorded in the presence of the duty Medical Officer.The said Doctor has not been examined in court. Though a woodenlog allegedly recovered has been put up as M.O.1 the two attestersto the recovery mahazaar have not been examined. Except for theinterested testimony P.W.1 mother of the deceased, none havespoken in favour of the prosecution. P.W.2,3 and 4 father anduncle of the deceased and sister of the accused and P.W.8neighbour all have turned hostile. According to the learnedcounsel, in the circumstances, the petitioner ought to have beenacquitted. 9. Learned Additional Public Prosecutor submitted that thecourts below have entered a finding of conviction on the basis ofthe evidence on record. Such findings are not to be easilyinterfered with. He would point out that the sentencing of thepetitioner to five years rigorous imprisonment for offence u/s.304(B) I.P.C is erroneous as the minimum punishment for such offenceis seven years. 10. On consideration of the rival submissions, this court isof the view that the conviction of the petitioner would have to beset aside. As rightly contested by the counsel for the petitionerexcepting for the mother of the deceased, the other immediaterelations viz., P.W.2 father, P.W.3 uncle of the deceased have notsupported the prosecution case. So also P.W.4 sister of theaccused and P.W.8 a neighbour have also not supported theprosecution case. The recovery of M.O.1, the wooden log becomesdoubtful in the absence of examination of the attesters to therecovery mahazar. Of more importance is the fact that Ex.P.11alleged statement for the deceased recorded by P.W.13 Headconstable, which forms the basis of the FIR is itself rendereddoubtful. Though the same was attested by a Doctor, such Doctor https://hcservices.ecourts.gov.in/hcservices/ has not been examined. It is only therein that allegations of ill-treatment owing to non-fulfillment of demand for money and ofbeating the deceased with wooden log is found. On admission intohospital the deceased had informed of having attempted suicideowing to stomachache. In the 164 Cr.P.C statement recorded byP.W.15, Judicial Magistrate, the deceased spoke to relationshipbetween the accused and another lady, of his having slapped herand on her having attempted self immolation owing to fear andanguish that the petitioner may chase her out of the house. Thiscourt would hold that the prosecution has put up a false case notonly owing to the variance between Ex.P.11 and the earlierstatements but also from the fact that the medical officer whoattested Ex.P.11, had not been examined, that the recovery ofM.O.1 wooden log is doubtful and a perusal of the post mortemcertificate informs the injury to the head of the deceased to be amere laceration 2X2 cms.11. Accordingly, the Criminal Revision Case stands allowed.The conviction and sentence passed by both the Courts below, areset aside. The petitioner/accused is acquitted of the charges. Thebail bond executed by the petitioner/accused shall standcancelled. The fine amount, if paid, shall be refunded to thepetitioner/accused.Sd/Asst Registrar/True Copy/Sub Asst RegistrarTo1.Additional District and Sessions Judge, Krishnagiri 2.Principal Assistant Sessions Judge, Krishnagiri. 3.Inspector of PoliceTaluk Police Station, Krishnagiri 4.The Public ProsecutorHigh Court, MadrasCO-NRths : 03.01.2012Crl.R.C.No.1034 of 200909.11.2011