S.Muniandi v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.10.2010CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.R.C.No.213 of 2004S.Muniandi .. Petitioner/P.W.2Vs.1.State of Tamil Nadu,Rep. by Inspector of Police,Ammapettai Police Station,Bhavani, Erode District... 1st Respondent/Complainant2.Sampath @ Vedachalam .. 2nd Respondent/AccusedPrayer:-Petition filed under Section 397 r/w. 401 of Cr.P.C,against the order dated 14.02.2003 passed in S.C.No.113 of 2002 bythe learned Additional Sessions Judge, Fast Track Court No.IV,Erode at Bhavani.For Petitioner : Prof.S.KrishnaswamyFor R-1 : Mr.A.Saravanan, Government Advocate (Crl.Side)For R-2 : Mr.N.ManokaranORDERThe second respondent herein is an accused in C.C.No.113 of2002 on the file of the learned Additional Sessions Judge, FastTrack Court No.IV, Erode at Bhavani and he was acquitted by thetrial Court from the charges under Sections 498(A) and 304(B)I.P.C. Challenging the said acquittal, P.W.2, father of thedeceased in this case, had preferred this Criminal Revision Casebefore this Court.2.The case of the prosecution, in brief, is as follows:- P.W.2-Muniandi is a retired Commercial Tax Officer andhe had three daughters. The deceased viz., Muniammal aliasThangamani was the first daughter. During the year 1997, oneMr.Madeswaran, who is uncle of the accused negotiated with P.W.2 toperform the marriage of the accused with the deceased. There was ademand for 100 sovereigns of gold jewels and cash of Rs.2,00,000/-.Finally, it was accepted for 50 sovereigns of gold jewels and cashof Rs.10,000/-. The marriage was performed on 07.09.1997.Subsequently, the deceased came to know that when she left forDindigul, the jewels, which were kept by her in the house, were https://hcservices.ecourts.gov.in/hcservices/ taken clandestinely without her knowledge and pledged. Thedeceased was also scolded by the accused as an illiterate and thatshe did not know anything. As the accused incurred heavy loss inthe business, a sum of Rs.10,000/- was given to him twice by P.W.2.P.W.2 also obtained a loan of Rs.2,00,000/- from one of his friendand he redeemed all the jewels including the jewels of the motherand sister of the accused and handed over the same to the accused.On one occasion, only Thali was in the neck of the deceased and sheremoved the Thali and threw it away. The accused informed thematter over phone to P.Ws.2 and 3, parents of the deceased and theycame and advised the deceased.(ii) On 31.07.2001, at about 10.00 a.m., P.W.6-Janakilakshmi,heard a noise from the lower portion of the house, wherein theaccused and the deceased were residing and she came down andknocked the door. She pushed open the door and also pushed thedoor of the bathroom and found that the deceased was lying upsidedown with burn injuries. P.W.6 raised alarm and came out of thehouse and informed the same to P.W.7. P.W.7 came out of the househurriedly to send message to P.W.1 and the accused. P.W.1, brotherof the accused also conveyed the message to the parents of thedeceased. P.W.1 came to know that P.Ws.2 and 3 had come to Madras.However, they were also informed. P.Ws.4, 5 and others came to thehouse of the accused at 9.00 p.m. They enquired P.W.1 as to whathad happened. Then, P.W.1 went to the police station and gave acomplaint-Ex.P.1 to P.W.19. P.W.19, the Sub-Inspector of Police,on receiving the complaint from P.W.1, registered a case in CrimeNo.495 of 2001 for an offence under Section 174 of Cr.P.C. andprepared Ex.P.16-FIR. (iii) P.W.22-P.Santha, Revenue Divisional Officer, hadreceived an information of Crime No.495 of 2001 and went to thescene of occurrence and conducted inquest and recorded thestatements of P.Ws.2, 3, 4, 8, accused and others and she submitteda report Ex.P.26. Ex.P.37 is the inquest report. The body wassent to post-mortem examination. (iv) P.W.18-Dr.G.Ramasamy, who was on duty, had conductedautopsy over the body of the deceased and issued Post-mortemcertificate-Ex.P.22 and opined that the deceased died due to 100%burns. Thereafter, P.W.14, Head Constable altered the case fromSection 174 of Cr.P.C. to Sections 498(A) and 304(B) I.P.C. andprepared the alteration report-Ex.P.7. P.W.23-Deputy Superintendentof Police, who took up further investigation in this case, arrestedthe accused on 08.08.2001 and after completing the investigation,he laid a final report against the accused on 12.02.2002 for theoffences under Sections 498(A) and 304(B) I.P.C.3.In order to establish the case, the prosecution examinedP.Ws.1 to 23 and marked Exs.P.1 to P.38 and produced M.Os.1 to 17. https://hcservices.ecourts.gov.in/hcservices/ The accused was questioned under Section 313 Cr.P.C. with regard tothe incriminating circumstances and he denied his complicity. Onbehalf of the accused, no witness was examined and two documentswere marked as Exs.D.1 and D.2.4.The Trial Court, after analyzing the oral and documentaryevidence, had acquitted the accused.5.Mr.S.Krishnaswamy, learned counsel appearing for therevision petitioner submitted that P.Ws.2 and 3 are the parents ofthe deceased and they have categorically spoken about the ill-treatment given to the deceased by the accused and the dowrydemand. Further, P.W.2 had stated that he had given a sum ofRs.10,000/- twice to the accused and also he redeemed the jewels ofthe deceased and also the jewels of the mother and sister of theaccused. But the trial Court, without invoking the presumptionthat arises under Section 113-B of the Indian Evidence Act, hadacquitted the accused. Further, the trial Court erroneously hadrelied on Ex.P.3, a letter said to have been written by thedeceased. The learned counsel for the petitioner further submittedthat the trial Court ought not to have placed reliance on Ex.P.3for acquitting the accused since what is stated in favour of theaccused by the deceased in Ex.P.2 is not admissible under Section32 of the Indian Evidence Act. Ex.P.2 is not the dying declarationof the deceased and it does not contain any date. 6.Mr.A.Saravanan, learned Government Advocate (Crl.Side)appearing for the first respondent submitted that the trial Courthad elaborately considered the evidence and observed that there wasno dowry demand by the accused.7.Mr.N.Manokaran, learned counsel appearing for the secondrespondent submitted that the accused did not demand any dowry evenas per the evidence of P.Ws.2 and 3 and it is admitted by P.W.3,mother of the deceased that as the accused sustained heavy loss inthe business, P.Ws.2 and 3 had voluntarily helped the accused.Even after redeeming the jewels of the deceased the accused had notreceived those jewels and he had informed P.Ws.2 and 3 that theythemselves can keep the jewels and those jewels could be receivedonly after giving the amount. The learned counsel furthersubmitted that most of the allegations which were made in the chiefexamination, were not stated earlier before the Revenue DivisionalOfficer or before the Investigating Officer. The learned counselfurther submitted that Ex.P.2 is the letter recovered from thescene of occurrence. In the said letter, the deceased had statedthat there was nothing wrong on the part of the accused. Thelearned counsel also submitted that the said letter was sent tohandwriting expert for comparison and the handwriting expert hasgiven an opinion and the same was also marked as Ex.P.35. https://hcservices.ecourts.gov.in/hcservices/

8.This Court has considered the submissions made by bothparties and perused the materials available on record.9.The marriage of the accused and the deceased wasperformed on 07.09.1997. The deceased had committed suicide byself immolation on 31.07.2001. As per the evidence of P.W.2, themain allegations are that the accused had abused the deceasedsaying uneducated and inefficient person. P.W.2 had also statedthat as the accused suffered heavy loss in the business, he hadgiven a sum of Rs.10,000/- twice to the accused. He had alsostated that he obtained a loan of Rs.2,00,000/- and redeemed thejewels of the accused family and also the jewels of the deceased.Except these allegations, he did not make any other allegations.Giving Rs.20,000/- to the accused as he suffered business loss andredeeming the jewels by P.W.2 would not amount to giving dowry.Further, P.W.2 had stated that the accused neither demanded a sumof Rs.20,000/- nor asked to redeem the jewels. According to P.W.2,it was only the deceased, who informed P.W.2 about the jewels beingpledged and P.W.2 on his own had redeemed those jewels. Further,even these allegations were not made by P.W.2 while he was enquiredby the Revenue Divisional Officer and the Investigating Officer.P.W.3, mother of the deceased had stated that she was informed overphone by the deceased that the accused assaulted her on nose.P.W.3 had further stated that the accused received a sum ofRs.25,000/- for starting a travel business but these facts were notstated during the Revenue Divisional Officer's enquiry or beforethe Investigating Officer. From the evidence of P.Ws.2 and 3, theingredients of the offences under Section 498(A) and 304(B) I.P.C.are not attracted.10.Of course, the trial Court had relied on Ex.P.2 note bookcontaining the dying declaration of the deceased marked as Ex.P.3.Ex.P.3 is the document filed by the prosecution. In Ex.P.3, it isstated by the deceased as follows:-",dp nky; ehd; thH tpUk;gtpy;iy/ vd; fztd; nky; ve;j jg;g[k; ,y;iy/mt';fis xd;Wk; bra;a ntz;lhk;/ rpgpia vd; fztd; ,lnk bfhLj;J tpL';fs;/"Ex.P.3 excludes the criminal liability of the accused. But itwas contended by the learned counsel for the petitioner that Ex.P.3is inadmissible since what is stated in favour of the accused wouldnot amount to dying declaration. Of course, in the suicidal note-Ex.P.3 what is stated in favour of the accused may not beadmissible under Section 32 of the Indian Evidence Act since it isa statement made by the deceased neither relating to the cause ofher death nor as to any of the circumstances of the transactionwhich resulted in her death. In Ex.P.3 the deceased had statedthat she did not want to continue her life. (,dp nky; ehd; thHtpUk;gtpy;iy). Only this part of the suicidal note-Ex.P.3 would beadmissible under Section 32 of the Indian Evidence Act. Though theother part of the suicidal note-Ex.P.3 may not be admissible under https://hcservices.ecourts.gov.in/hcservices/ Section 32 of the Indian Evidence Act, as the statement is infavour of the accused and relevant for exonerating the accused,this Court feels that there was nothing wrong in placing relianceon the said part in Ex.P.3. 11.The Hon'ble Supreme Court, in the decision reported inAIR 2001 Supreme Court 3837 (Ramesh Kumar Vs. State ofChhattisgarh), has observed at paragraph No.22 as follows:-"22. ..... Evidential value of the two writingscontained in diary Article A is that of dyingdeclarations. On the principle underlyingadmissibility of dying declaration in evidence thattruth sits on the lips of a dying person and theCourt can convict an accused on the basis of suchdeclaration where it inspires full confidence, thereis no reason why the same principle should not beapplied when such a dying declaration speaking ofthe cause of death exonerates the accused unlessthere is material available to form an opinion thatthe deceased while making such statement was tryingto conceal the truth either having been persuaded todo so or because of sentiments for her husband."12.For the above said reasons, this Court does not find anyreason to interfere with the Judgment of the trial Court. Hence,this Criminal Revision Case is dismissed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarjrlTo1.The Additional Sessions Judge, Fast Track Court No.IV, Erode at Bhavani.2. The Inspector of Police,Ammapettai Police Station,Bhavani, Erode District.3.The Public Prosecutor,High Court, Madras.+ 1 cc to Mr. S. Krishnawamy Advocate SR. 75079+ 1 cc to Mr. N. Manokaran, Advocate Sr.75262 CRL.R.C.No.213 of 2004SJ(CO)EU 30.11.10