Sivakumar v. State by Inspector of Police

BAIL SLIPThe Appellant/Accused viz., Sivakumar was directed to bereleased on bail as per the order of this court dated 13.5.2003 andmade in CRL MP No.4792 of 2003 in Crl Appeal No.785 of 2003.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.10.2010CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCRL.A.No.785 of 2003Sivakumar .. Appellant/AccusedversusState by Inspector of PoliceCuddalore O.T. Police Station(Crime No.120 of 2002) ..Respondent/ComplainantCriminal Appeal filed under Section 374 Cr.P.C., against theJudgment passed in S.C.No.314 of 2002, on the file of the learnedAdditional Sessions Judge (Fast Track Court -II) Cuddalore dated30.04.2003. For Appellant : Mr.MahendranFor Respondent: Mr.A.Saravanan Government Advocate (Criminal side)J U D G M E N TThe appellant herein is the first accused in S.C.No.314 of 2002,on the file of the Additional Sessions Judge (Fast Track Court -II),Cuddalore, and he stands convicted for the offences under Sections498-A and 306 IPC and sentenced to undergo rigorous imprisonment fortwo years and also to pay a fine of Rs.1000/- in default to undergothree months rigorous imprisonment for the offence under Section 498-A IPC and sentenced to undergo rigorous imprisonment for three yearsand to pay a fine of Rs.2000/- in default to undergo six monthssimple imprisonment under Section 306 IPC. Challenging the saidconviction and sentence, the appellant had preferred this criminalappeal.2. The case of the prosecution, in brief, is that the appellantherein who is the first accused is the husband of the deceased. The https://hcservices.ecourts.gov.in/hcservices/ second accused is the mother of the first accused. PW-1 is thefather of the deceased and P.W.2 is the mother of the deceased. Themarriage of the first accused and the deceased was performed on06.04.1998. At the time of marriage, 15 sovereign jewels and otherhousehold articles were given by P.W.1. After the marriage, for fourmonths, the first accused and the deceased were residing together andthereafter the first accused had gone to Dubai. The deceaseddelivered a male child. Six months after the birth of the child,the first accused came to Cuddalore from Dubai. At that time, thedeceased and the child were in the house of P.W.1 and the firstaccused did not go and meet them. P.W.3 who is related to P.W.1 andothers took the deceased to the house of the first accused. P.W-1gave one sovereign chain, silver kolusu and a silver waist chain tothe child. On 23.04.1999, the deceased telephoned to P.W-1 andinformed that she was assaulted by the first accused. P.Ws.1 and 2rushed to the house of the accused. They saw the first accuseddragging the deceased holding her tuft. The deceased informed P.W.1that she was ill-treated because the jewels given to the child wasnot sufficient. P.W.1 also informed them that he would give morejewels after his son P.W-4 returns from Singapore. On the next day,the deceased had come to the house of P.W.1 and a complaint was givenin the All Women Police Station, Cuddalore. She was admitted in theGovernment Hospital for two days, since she had already sustainedinjuries due to the assault by the first accused. A compromise wasentered into between the parties in the All Women Police Station,Cuddalore. Both the first accused and the deceased agreed forsetting up a separate family. Thereafter, in the year 1999 in themonth of October, they were living separately at KarpagavinayagarStreet, Indhu Nagar, Cuddalore. The deceased gave birth to anothermale child. On 25.02.2002, P.W-1 came to know that the deceased haddied and then P.W-1 and P.W-2 rushed to the house of the accused andsaw the deceased lying dead. He also noticed burn injuries on thebody of the deceased. He went to the police station and gavecomplaint Ex.P.1 at 7.00p.m. 3. P.W.10 on receiving the complaint, registered the case inCrime No.120 of 2002 under Section 174 Cr.P.C and prepared the FirstInformation Report Ex.P.6. He also prepared the observation mahazarEx.P.9 and rough sketch Ex.P.11. P.W-11 Revenue Divisional Officeralso informed and came to the scene of occurrence on 26.02.2002 andat about 10.00a.m., he held inquest. He also recorded the statementsof witnesses and prepared inquest report Ex.P.7 and also sent areport Ex.P.8. P.W.12, Superintendent of Police altered the caseunder Section 498-A and 306 IPC and sent express report Ex.P.10 tothe Judicial Magistrate-II, Cuddalore.4. P.W-8, Doctor held autopsy on the body of the deceased and heissued Ex.P.3 post mortem certificate. He noticed the followinginjuries: https://hcservices.ecourts.gov.in/hcservices/ External Injuries:Ligature mark seen extending from below left ear.(breath 1 cm) to upper part of anterior of neck to rightside below the ear, where the mark becomes broadened (3cm) sub-cutaneous tissue pale with petichial hemorrhageseen (2) Reddish brown pigmented skin seen left axilla 6 x4 cms appears ante-mortem. (3) Reddish brown pigmented skinseen anterior chest 3 x 2 cms and over manubrium sterni 1x 1 cm present and (4) also over back extending from oneshoulder to another shoulder up to upper back about 12 x 10cms. Appears ante-mortem. RM present in all four Limbs.Eyelids closed. Right partially open and mildly congested.Tongue inside the mouth. Ears no bleeding."The Doctor also gave opinion that the deceased would appear to havedied of asphyxia due to hanging.5. P.W-12, Deputy Superintendent of Police after recordingstatement of witnesses and after completing investigation, laid thefinal report against the accused 1 and 2 for offences under Sections304(B), 408 and 306 IPC.6. In order to establish the case, the prosecution examinedP.Ws.1 to P.W.12, marked Exs.P.1 to P.11 and produced materialobjects M.O.1 series. When the accused were questioned under Section313 Cr.P.C., they denied their complicity and they have not examinedany defence witness nor marked any document. The trial Court afteranalysing the evidence acquitted the second accused and convicted andsentenced the first accused alone as already stated above.7. Mr.Mahendran, learned counsel appearing for theappellant/accused submitted that in Ex.P.1 complaint given by P.W.1,he had stated that the first accused and the deceased were living fora period of three years at Vandipalayam and he did not make anyallegation against the accused that he ill-treated the deceasedduring that period. P.W-1 also admitted in the cross examinationthat in the year 1999, after giving complaint to the All Women PoliceStation and after the matter was compromised, both the first accusedand the deceased were living happily for two years and the deceasedalso gave birth to a child, and as such, the ingredients of theoffence under Sections 498-A and 306 IPC are not made out. Thelearned counsel for the appellant drew the attention of this Court tothe statement of the accused before the Revenue Divisional Officer-P.W.11 in which the first accused had stated that the deceased usedto threaten him that she would commit suicide by pouring kerosene andon the date of occurrence, there was only a wordy quarrel.8. Per contra, the learned Government Advocate (Criminal side)submitted that the accused was ill-treated by the deceased and https://hcservices.ecourts.gov.in/hcservices/ earlier, complaint was given before the All Women Police Station,Cuddalore, and the matter was compromised. At that time, thedeceased had given a statement Ex.P.4 and the first accused had givena statement Ex.P.5. Ex.P.4 would reveal that the first accused ill-treated the deceased and the deceased was also assaulted by the firstaccused.9. The learned Government Advocate (Criminal side) furthersubmitted that as per the evidence of P.W.1 and as per the inquestreport, burn injuries were seen on the body of the deceased and thepost mortem report Ex.P.3 also shows that the deceased sustained burninjuries on her back and left axilla region and Doctor P.W.8 hadstated that the deceased could have sustained those injuries due toiron box heat. The deceased sustained these injuries only due to theact of the first accused who only was present at the scene ofoccurrence. The learned Government Advocate (Criminal side) alsosubmitted that the presumption under Section 113-A of the EvidenceAct could be drawn against the accused.10. This Court considered the submission of both sides andperused the records. 11. It appears from the evidence of P.Ws.1 and 2 and alsoExs.P.4 and P.5, earlier a complaint was given by the deceasedagainst the accused in the All Women Police Station, Cuddalore. Atthat time, the allegation against the accused was that the deceasedwas ill-treated. Any how, the matter was compromised and the firstaccused and the deceased were living separately for a period of morethan two years. Of course, in Ex.P.1 complaint, P.W.1 had notmade out any specific allegation against the accused. He had onlystated that when he went and saw the body of the deceased, he sawburn injuries on the body of the deceased due to iron box heat. Inthe inquest report, Ex.P.7 as per column-7, the burn injuries on theback side and the left flank and left ambit were noticed. Even inEx.P.3 post mortem report, injury Nos.2,3 and 4 are burn injuries andDoctor P.W-8 had stated that those burn injuries are possible due toiron box heat. This Court also perused the M.O.1 series photos. Inthe M.O.1 series photos, on the back side of the body of thedeceased, reddish burn injuries could be seen. The burn injurieswere fresh injuries. They were not a healed injuries even as per thepost mortem certificate. The injuries on the back side could not beself-inflicted and they are also not accidental injuries.Admittedly, the first accused and the deceased only were residing inthe house. The first accused also admitted before the RevenueDivisional Officer- P.W.11 that at the time of occurrence, he waspresent in the house and there was a quarrel among the husband andwife. While so, it is the first accused who was responsible for the https://hcservices.ecourts.gov.in/hcservices/ burn injuries sustained by the deceased. He also has not comeforward with any specific explanation.12. Section 113-A of the Indian Evidence Act is as follows:"13A. Presumption as to abetment of suicide by amarried woman.When the question is whether the commission of suicide by awoman had been abetted by her husband or any relative ofher husband and it is shown that she had committed suicidewithin a period of seven years from the date of hermarriage and that her husband or such relative of herhusband had subjected her to cruelty, the court maypresume, having regard to all the other circumstances ofthe case, that such suicide had been abetted by her husbandor by such relative of her husband.Explanation. For the purposes of this section “cruelty”shall have the same meaning as in section 498A of theIndian Penal Code (45 of 1860)." 13. In view of the circumstances available in this case, thisCourt is to draw a presumption as per Section 113-A of the IndianEvidence Act that the commission of suicide by the deceased has beenabetted by her husband. The presumption which is to be drawn by thecourt is also not rebutted by the accused by any acceptable evidence.His statement before the Tahsildar that there was a quarrel betweenthe husband and wife, and therefore, she committed suicide is notsufficient to rebut the presumption that arises in this case in viewof the specific fact that the deceased had sustained burn injuries.The cruelty committed by the first accused to the deceased isestablished by the prosecution beyond reasonable doubt. Theconviction on the accused under Section 498-A and 306 IPC areconfirmed.14. The learned counsel appearing for the appellant prayed forleniency with regard to the sentence imposed on the first accused.Considering the age of the first accused that now he is 47 years oldand more than eight years had elapsed from the date of occurrence,the sentence of imprisonment is reduced to a period of one yearrigorous imprisonment for the offence under Section 498-A and alsofor the offence under Section 306 IPC. The fine amount imposed onthe accused is confirmed.15. Except the above modification regarding the sentence ofimprisonment, the criminal appeal is dismissed. https://hcservices.ecourts.gov.in/hcservices/

16. The trial Court is directed to take steps immediately tobring the accused/appellant into custody to serve the remainingperiod of imprisonment.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarksrTo 1. The Additional Sessions Judge, FTC II, Cuddalore.2. Do Through the Principal Sessions Judge, Cuddalore3.The Inspector of Police, Cuddalore O.T.Police Station4.The Public Prosecutor, High Court, Chennai.5. The Director General of Police, Mylapore, Chennai6. The District Collector, Cuddalore7. The Judicial Magistrate No.II, Cuddalore8. Do through The Chief Judicial Magistrate, Cuddalore.Crl.A.No.785 of 2003NG (CO)RH (12.11.10)