Palani v. State represented by Assistant Commissioner of Police,Pulianthope Range,Chennai – 600 039

B A I L S L I PThe Appellants in Crl.A.No.783/2003/Accused 1 and 2 viz.,1. Palani and 2. Subbulakshmi were directed to be released onbail as per order of this Court dated 5.6.2003 and made in Crl.MP.No.4781/03 in Crl.A.No.783/2003.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:21.10.2010CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.A.No.783 of 2003 andCRL.R.C.No.789 of 2003CRL.A.No.783 of 20031. Palani2. Subbulakshmi .. Appellants /Accused 1 & 2Vs.State represented by Assistant Commissioner of Police, Pulianthope Range, Chennai – 600 039. .. Respondent/ComplainantPrayer:-Appeal is filed under Section 374 of the Code of Criminal Procedure, against the Judgment dated 07.05.2003 passedin S.C.No.231 of 2001 on the file of the Magalir Neethimandram, Chennai – 104, and pray for setting aside the conviction andsentence imposed on them. For Appellants :Mr.S.SadasharamFor Respondent: Mr.A.Saravanan, Government Advocate(Crl. Side)CRL.R.C.No.789 of 2003G.Arumugam.. Revision Petitioner / PW1vs.

Palani S/o. Ramachandran https://hcservices.ecourts.gov.in/hcservices/

Subbulakshmi W/o. Ramachandran3. Ramachandran S/o. Perumal4. The Assistant Commissioner Pulianthopu Range, Chennai – 39.... RespondentsPrayer:-Petition is filed under Section 397 & 401 of the Codeof Criminal Procedure, against the Judgment dated 07.05.2003passed in S.C.No.231 of 2001 on the file of the MagalerNeethimandram, Chennai, challenging the acquittal of 3rdrespondent and seeking conviction of respondents 1 to 3 under Section 302 and 201 IPC.For Petitioner: Dr.G.KrishnamurthyFor R1 to R3:Mr.S.SadasharamFor R4:Mr.A.Saravanan, Government Advocate(Crl. Side)Common JudgmentThe appellants in Criminal Appeal No.783 of 2003 are theaccused 1 and 2 in S.C.No.231 of 2001 on the file of the MagalerNeethimandram, Chennai. Totally, there are three accused in thiscase. The 3rd accused had been acquitted by the Trial Court fromthe charges under Sections 498-A, 306, 304-B, IPC and under Section 4 of the Dowry Prohibition Act. The first accused wasconvicted under Section 304-B IPC and sentenced to undergoRigorous Imprisonment for a period of 10 years and to pay a fineamount of Rs.20,000/-, in default, to undergo Simple Imprisonmentfor a period of one year; the second accused was convicted under Section 304-B IPC and sentenced to undergo Rigorous Imprisonmentfor a period of 7 years and to pay fine of Rs.5,000/-, indefault, to undergo Simple Imprisonment for a period of threemoths and no separate sentence was awarded by the Trial Court onthe accused 1 & 2 for the offences under Sections 498-A, 306 IPCand under Section 4 of the Dowry Prohibition Act. Challengingthe said conviction and sentence, the appellants / A1&A2 havepreferred the Criminal Appeal No.783 of 2003.2. P.W.1 – Mr.G.Arumugam, who is the father of the deceasedhad preferred the Criminal Revision in Crl.R.C.No.789 of 2003,seeking conviction to the Accused 1 to 3 under Section 302 and201 IPC. https://hcservices.ecourts.gov.in/hcservices/

The case of the prosecution, in brief, is as follows:-The second and third accused are the mother and fatherof the first accused. The marriage of the first accused with thedeceased Jeeva, daughter of PW1, was performed on 07.02.1999. Atthe time of marriage, Jeeva was given 15 sovereign of gold jewelsapart from other house-hold articles. Subsequently, fivesovereigns of gold jewels were given to the deceased. After themarriage, the deceased Jeeva and the first accused were livinghappily only for a period of one or two months. Thereafter, aseparate family was set up at Padi. Unable to bear the rentalexpenses, the first accused and the deceased came back to thehouse of 2nd and 3rd accused and they were living in separateportion in the same house. There was a demand for a motorbike bythe accused 1 and 2 for which the deceased was harassed. PW1 wasunable to meet out the demand made by the accused due to thefinancial crisis.

Mr.S.Sadasharam, learned counsel appearing for theappellants / accused 1 to 3, submitted that even as per the caseof the prosecution, the ingredients of the offences under Sections 306 and 304-B IPC are not made out and originally chargeunder Section 304-B IPC was not framed against the accused. But, at the fair end of the trial, the second charge under Section304-B IPC was framed, which caused great prejudice to theaccused. The learned counsel for the appellants/accusedfurther submitted that there was no demand of dowry and thedeceased was not subjected to any cruelty and even the lettersExs.P1 and P2 marked by the prosecution did not indicate anycruelty by the accused and further, Exs.P1 and P2 were writtenmore than 2 months prior to the death of the deceased and Exs.P1and P2, letters said to have been written by the deceased are notadmissible in evidence. Ex.D1, the letter written by thedeceased dated 03.04.2000 would disprove the case of theprosecution and it would show that the deceased had tendency tocommit suicide. The learned counsel further submitted that apartfrom PW1 and PW2, parents of the deceased, PW3 has also givenevidence against the accused, but PW3's evidence is only in thenature of hearsay evidence. The learned counsel drew theattention of this Court, to Ex.P7, a statement given by the firstaccused to PW5-Tahsildar in which, it is stated that the deceasedwas suffering from stomach pain and therefore, she committedsuicide by hanging. The learned counsel submitted that even theoffence under Section 498-A IPC is not made out against theappellants / Accused 1 to 3.

Per contra, the learned Government Advocate (Crl. Side)submitted that PW1 – father of the deceased categorically statedthat the second accused demanded a motorbike and PW2 stated thatthe accused demanded money for starting a company and the firstaccused had demanded a motorbike and the deceased was harassed bythe accused for the said demand. The learned counsel alsosubmitted that Exs.P1 and P2 also corroborate the evidence ofPWs.1 and 2 and in Exs.P1 and P2, letters were written by thedeceased, it is mentioned that the deceased was abused by theaccused. The learned Government Advocate fairly conceded thatthere is no demand of dowry, but stated that the appellants areliable for the offence under Section 306 of IPC and thepresumption under Section 113A of the Indian Evidence Act is alsoavailable.

The learned counsel appearing for the revisionpetitioner/PW1, father of the deceased, submitted that as per the Postmortem report, some antemortem injuries were noticed on thebody of the deceased. Doctor-P.W.4 had stated that the deceasedhad sustained injury on the head, which was possible due toviolence. The learned counsel for the revision petitionerfurther submitted that the acquittal of the 3rd accused iserroneous, since PW2 had stated in her evidence that A3 also https://hcservices.ecourts.gov.in/hcservices/ harassed the deceased. The learned counsel for the revisionpetitioner also submitted that the deceased had committed suicidedue to demand of dowry.

The learned counsel for the revision petitioner alsosubmitted that Ex.D1 is not admissible since only Xerox copy isfiled and original is not filed and further PW1 admitted thehandwriting of the deceased in Ex.P1 and P2 and Ex.P1 would showthat the deceased was driven to commit suicide due to the crueltygiven by the accused.

This Court has considered the submissions made by bothparties and perused the records.

According to the evidence of PW1, father of thedeceased, there was some dispute between the deceased and thefirst accused. The second accused demanded a motorcycle and thedeceased also had written two letters viz., Exs.P1 and P2. Evenin Exs.P1 and P2, it was mentioned that there was a demand fortwo wheeler vehicle for which the deceased was abused. It is theevidence of PW2, mother of the deceased that the accused 1 to 3,wanted a company to be started by P.W.1 since PW1 had started acompany for his son. PW2 also stated that four months prior tothe death of the deceased, the first accused brought the deceasedand dropped in the house of the PW2 saying that she could returnto the matrimonial home only if she comes with the vehicle.

Now, it is to be seen whether the offence under Section304B IPC is made out or not. Section 304B of IPC is as follows: "304B. Dowry death 1) Where the death of a woman is caused by anyburns or bodily injury or occurs otherwise thanunder normal circumstances within seven years ofher marriage and it is shown that soon beforeher death she was subjected to cruelty orharassment by her husband or any relative of herhusband for, or in connection with, any demandfor dowry, such death shall be called "dowrydeath" and such husband or relative shall bedeemed to have caused her death. Explanation:-For the purpose of this sub-section, "dowry" shall have the same meaning asin section 2 of the Dowry Prohibition Act, 1961( 28 of 1961).(2) Whoever commits dowry death shall bepunished with imprisonment for a term whichshall not be less than seven years but which mayextend to imprisonment for life. " https://hcservices.ecourts.gov.in/hcservices/

The section 2 of the Dowry Prohibition Act is asfollows: "2. Definition of "Dowry" – In this Act,"Dowry" means any property or valuable securitygiven or agreed to be given either directly orindirectly - a) by one party to marriage to the otherparty to the marriage; orb) by the parents of either party to amarriage or by any other persons, to eitherparty to the marriage or to any other person; at or before [or any time after the marriage][in connection with the marriage of the saidparties, but does not include] dower or mahr inthe case of persons to whom the Muslim PersonalLaw (Shariat) applies. "

As per the above definition, the demand for the vehicle, viz., Motor Cycle was not in connection with the marriage of A1and the deceased. Therefore, it cannot be said that this is acase of the dowry death since even as per the explanation under Section 304B IPC for the purpose of this sub-section, dowry shallhave the same meaning, as in the Section 2 of the DowryProhibition Act.15. Even though, the death of the deceased is not a dowrydeath, it is also to be seen whether the offence under Section306 IPC is made out. Section 113A of the Indians Evidence Actreads as follows: "[113A. Presumption as to abetment of suicide by amarried woman. When the question is whether the commission ofsuicide by a woman had been abetted by herhusband or any relative of her husband and it isshown that she had committed suicide within aperiod of seven years from the date of hermarriage and that her husband or such relativeof her husband had subjected her to cruelty, thecourt may presume, having regard to all theother circumstances of the case, that suchsuicide had been abetted by her husband or bysuch relative of her husband.

This Court does not find any merit in the revision filedby the revision petitioner / PW1, father of the deceased. Hence, the Crl.R.C.No.789 of 2003 filed by P.W.1 is liable to bedismissed.

The learned counsel appearing for the appellants /Accused 1 and 2 stated that both the Accused 1 and 2 have alreadybeen in jail for a period of 65 days.

In the result, the Criminal Revision No.789 of 2003filed by the revision petitioner/PW1 is dismissed. TheCrl.A.No.783/2003 filed by the accused 1 & 2 is partly allowedand the conviction imposed on the appellants / Accused 1 and 2for the offences under Sections 306, 304B IPC and Section 4 of Dowry Prohibition Act is set aside. The sentence imposed on theappellants / accused 1 & 2 under Section 304B IPC is also setaside.

The conviction imposed on the accused 1 and 2 /appellants under Section 498A IPC alone is confirmed and they aresentenced to undergo imprisonment for a period of two months, which they have already undergone. Further, 1st accused issentenced to pay a fine of Rs.20,000/- and second accused issentenced to pay a fine of Rs.5,000/-. In default of payment offine, they shall undergo each 6 months simple imprisonment. Thefine amount already paid by the appellants A1 and A2 for theoffence under Section 304B IPC shall be adjusted towards thefine amount now imposed by this Court for the offence under Section 498-A IPC.ogySd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The Magalir Neethimandram, Chennai – 104.2. The Chief Metropolitan Magistrate, Egmore, Chennai. https://hcservices.ecourts.gov.in/hcservices/

3. The X Metropolitan Magistrate, Egmore, Chennai 8.4. The Superintendent, Central Prison, Chennai.5. The Superintendent, Central Prison, Vellore.6. The Assistant Commissioner of Police, Pulianthope Range, Chennai – 600 039.7. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. S. Sadasharam, Advocate SR No.76386+ 1 cc to Mr. G. Krishnamurthy, Advocate SR No.75882TAM(CO)SR/1.12.2010CRL.A.No.783 of 2003 andCRL.R.C.No.789 of 2003