THE HONOURABLE MR v. Nagaraja @ Raja2.The Inspector of Police, B8, Coimbatore West Police Station

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 11.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.2123 of 2002Muthumari ..Revision petitionvs.1.Nagaraja @ Raja2.The Inspector of Police, B8, Coimbatore West Police Station, ..RespondentsPrayer: This Revision has been preferred under Section 397 Crl. P.C. Asagainst the judgment dated 30.08.2001, made in S.C.No.16 of 2001 on thefile of the Principal Assistant Sessions Judge, Coimbatore.For Appellant : Mr.R.SankarasubbuFor Respondents : Mr.S.Suresh (for R1) Mr.V.R.Balasubramanian Addl. Public Prosecutor (for R2).ORDER This revision has been preferred against the judgment in S.C.No.16of 2001 on the file of the Principal Assistant Sessions Judge, Coimbatore,dated 30.10.2001. The accused has been charged under Section 304(B), 306& 498(A) IPC.2. The short facts of the prosecution case relevant for the purpose ofdeciding this revision are as follows:- The deceased Kokila was given in marriage on 19.3.1999 to theaccused. At the time of marriage the parents of the deceased had presented12 sovereigns of gold ornaments besides a gold chain weighing 6 gramsand other utencils. On 24.1.2000 under the influence of liquor theaccused had bet Kokila insisting her to bring Rs.2,00,000/- from herparents' house. On 24.1.2000 the accused had compelled his wife Kokila toconsume a cowdung solution. Afraid of his torture Kokila has consumed thesaid solution which resulted in her death on 25.1.2000 at about 1.10 am atCoimbatore Medical College Hospital. Hence, the accused has been chargedunder Section 498(A), 304(B) and 306 IPC.3. The case was taken on file by the Judicial Magistrate No.V, https://hcservices.ecourts.gov.in/hcservices/ Coimbatore in P.R.C.No.32 of 2000. The learned Judicial Magistrate hasfurnished copies to the accused under Section 207 of Cr.P.C., onappearance of the accused on summons. Since the case is liable to betried by a Court of Sessions, the learned Judicial Magistrate hascommitted the case to the Court of Sessions under Section 209 of Cr.P.C.The learned Sessions Judge after going through the records placed beforehim had framed charges against the accused under Section 498(A), 304(B)and 306 IPC and when questioned the accused pleaded not guilty. On theside of the prosecution P.W.1 to P.W.14 were examined and Ex.P.1 toEx.P.14 were exhibited.4. P.W.1 is the father of the deceased Kokila. According to P.W.1,the marriage between the deceased Kokila and the accused, who is noneother than the brother-in-law of P.W.1, took place on 19.3.1999 at AshokNagar and at the time of marriage, he had presented 12 sovereigns of goldornaments to Kokila and also presented a gold chain weighing 6 grams tohis son-in-law, who is also the brother of his(P.W.1) wife and after themarriage they lived happily for some time and on one occasion Kokila hadseen the accused, talking to one Selvi by touching her body, which wasobjected to by his daughter Kokila, which was repudiated by the accused bysaying that he has spent Rs.2,50,000/- for their marriage and it is to beborne out only by the parents of Kokila and had asked Kokila to go to herparents' house and bring the said sum of Rs.2,50,000/-. On that score theaccused had driven Kokila out of her matrimonial home, which made her totook asylum in her parents' house and the matter was taken to panchayat.The panchayators have advised to change the house of the accused andaccordingly the accused has shifted his residence to Ramakrishnapuram.P.W.1 would further depose that he later heard that the said Selvi used tovisit the house of the accused at Ramakrishnapuram too and two monthsbefore the occurrence the accused is said to have abetted the deceased toconsume poison and to put an end to her life. Fearing some untowardthings may happen due to the act of her husband/accused, Kokila left thematrimonial home once again and began to reside in her parents' house fornearly 1 ½ months. Some 10 days prior to the occurrence the accused hassent word for him(P.W.1) and his wife and asked to reunite them. Since theaccused was not amenable to take back his wife, he informed his co-brotherBalakrishnan and his wife Jothi, who came to their house on the first dayof Thai to whom Kokila had revealed what had happened in her house andanother panchayat was held in the presence of P.W.1's brother Rajendranand one Gurusamy and in the punchayat the accused had given an undertakingthat he will see that the said Selvi will not visit thereafter to herhouse. On 24.1.2000 at about 7.00 pm his(P.W.1) wife and his anotherdaughter Parasakthi went to Ramakrishnapuram to see the mother of theaccused, who had sustained a fracture on her hand due to a fall. An hourlater his wife and daughter Parasakthi returned to the house in an autowith his another daughter Kokila and his wife was screaming and informedhim that the husband of Kokila had asked Kokila to consume cowdungsolution and accordingly she had also consumed the same and that she is ina precarious condition and she must by given proper treatment in a https://hcservices.ecourts.gov.in/hcservices/ hospital. So immediately, he (P.W.1) took her to a private hospital fromwhere his daughter Kokila was referred to Government Hospital, since hercondition was very serious and accordingly he took Kokila to Governmentgeneral hospital, Coimbatore, but without responding to the treatment shedied within one hour of admission. Ex.P.1 is the complaint preferred byP.W.1.5. P.W.2 is the wife of P.W.1, who would corroborate the evidence ofP.W.1. She would depose that when she went to the accused's house to seehis mother who had sustained a fracture on her right hand due to a fall,her daughter Kokila was found lying on the bed and she was seen very weakand had also vomited yellow colour substance. On her enquiry Kokila hadinformed her that her husband purchased cowdung powder and asked her toconsume the same and to commit suicide before he returns from cinema,otherwise she will be beaten to death and that due to this threat Kokilagot afraid and consumed the cowdung solution and washed the glass used forconsuming the said cowdung solution and that immediately she (P.W.2) tookher Kokila to her house in an auto and informed the same to her husbandP.W.1 and took Kokila to a private hospital by name Maruthi Hospital andas per the advice of the doctor in Maruthi hospital, Kokila was taken toGovernment Hospital at Coimbatore and within a short while Kokila breathedher last.6. P.W.1 is the Sub-Inspector of Police, B8 Verity Hall Police Stationat the time of occurrence. He deposed that while he was on duty on24.1.2000 at about 2.00 am he received death intimation from CMC Hospitaland immediately rushed to the hospital where P.W.1 had preferred acomplaint at about 3.00 am and returned to the police station andregistered a case under Cr.No.22 of 2000 under Section 498(A), 306 & 304(B) IPC. Ex.P.9 is the FIR. Ex.P.10 is the death intimation. Since thedeceased had died within 10 months from the date of her marriage he(P.W.11) passed on the information to RDO along with the copy of the FIRwith a request to conduct inquest. He has forwarded the express FIR toconcerned officials including the Judicial Magistrate.7. P.W.12 is the RDO, who had conducted the inquest in this case.P.W.12 after receiving the express FIR proceeded to the Coimbatore MedicalCollege Hospital at about 11.00 am on 25.1.2000 and he had conductedinquest in the presence of the witnesses on the dead body of Kokila.P.W.12 in his enquiry came to know that Kokila died not due to dowryharassment but only due to cruelty met at the hands of her husbandNagarajan. Ex.P.11 is the inquest report of RDO.8. P.W.13 is the Investigation Officer, who had conductedinvestigation in this case. On the receipt of the express FIR, P.W.13proceeded to the place of occurrence and prepared Ex.P.2-observationmahazar in the presence of P.W.6. He had drawn a rough sketch Ex.P.12.He has examined the witnesses and recorded their statements. The inquestwas conducted by RDO. P.W.13 had given requisition to the Doctor for https://hcservices.ecourts.gov.in/hcservices/ conducting autopsy on the corpse of Kokila and handed over the case recordto his successor. Ex.P.13 is the inquest report of RDO. 9. P.W.3 is a panchayator. He speaks about the misunderstanding whichwas prevailing between the deceased Kokila and her husband and that within10 months from the date of marriage the accused had cruelly treated Kokila6 or 7 times and he used to consume liquor and bet her and had alsocompelled her to sign in blank papers in order to give her consent for thesecond marriage of the accused with one Selvi and that after hearing theincident that Kokila had consumed cowdung solution, he(P.W.3) has alsowent to the private hospital at about 11'O clock on 24.1.2000. But atthat time there was no one in the Maruthi hospital, and he was informedthat Kokila was referred to government hospital since her condition wasserious. He also proceeded to the government hospital where he saw Kokilabeing treated by the doctor but without responding to the treatment shedied within one hour.10. P.W.4 would depose that on 24.1.2000 at about 8.00 pm Kokila'ssister and mother brought Kokila from inside the house of the accused andtook her in an auto and that he came to know that on the previous nightKokila had consumed cowdung solution.11. P.W.5 would speak that very often he had noticed quarrel betweenKokila and her husband in connection with the affair the accused had withone Selvi and he would also say that on 24.1.2000 he was informed thatKokila had consumed cowdung solution and she was admitted in a privatehospital in a precarious condition and later she was referred togovernment hospital where she breathed her last without responding to thetreatment.12.P.W.7 is the doctor who is conducting the private hospital by nameMaruthi Hospital, where Kokila was admitted on 25.1.2000 early morning at000.30 hours. P.W.7 would depose that the said Kokila aged about 18 years,was brought to his hospital by her father Muthumari and at the time ofexamination Kokila had informed him that she had consumed cowdung solutionon 24.1.2000 at about 8.30 pm, but she was found conscious and since shehad developed fits, he(P.W.7) immediately referred her to emergency wardwhere stomach wash was given to her and thereafter referred Kokila togovernment hospital. Ex.P.3 is the admission slip. He has also sentintimation Ex.P.4 to the police.13. P.W.8 is the Doctor, who had treated Kokila at the governmenthospital. P.W.8 would depose that at the time of admission Kokila was in aserious condition and there was no movement seen in the retina of the eyesand that she died at about 1.10 am and he had sent the death intimation tothe police station.14. P.w.9 is the Doctor, who had conducted autopsy on the corpse ofKokila on the basis of Ex.P.5 requisition made by RDO. He would speak https://hcservices.ecourts.gov.in/hcservices/ that the specimens of internal organs of Kokila were sent to ForensicScience Laboratory for chemical examination and from the report receivedfrom the Forensic Science Laboratory he came to know that a poisonoussubstance by name Aromine was found in the internal organs of thedeceased. He has opined that the deceased would have died due toconsumption of aromine poison. Ex.P.6 is the post-mortem certificate.Ex.P.7 is his final report.15. P.W.10 is the medical officer in Maruthi private hospital whereKokila was brought on 24.1.2000 at about 9.30 pm. He would depose that hegave stomach wash to the patient Kokila who was in semi consciouscondition. Ex.P.8 (series) are the case sheets relating to Kokila.16. P.W.14 is the successor of P.W.13, who has continued hisinvestigation in this case and recorded the statement of about 23witnesses and after completion of investigation, filed the charge sheetagainst the accused on 25.4.2000.17. When incriminating circumstances were put to the accused undersection 313 of Cr.P.C., the accused denied his complicity with the crime.The accused has examined himself as D.W.1. No documentary evidence wasexhibited on the side of the defence. After going through the oral anddocumentary evidence available before him, the learned trial judge hasacquitted the accused on the ground that the prosecution has failed tobring home the guilt of the accused beyond any reasonable doubt. Eventhough the State had not preferred any appeal over the findings of thelearned Sessions Judge, the father of the deceased Kokila has preferedthis revision.18. Now the point for determination in this revision is whether thereis any prima facie case made out against the accused to interfere with thefindings of the learned Sessions Judge?19. The Point:- The learned counsel Thiru.R.Sankarasubbu appearing forthe revision petitioner would mainly rely on the evidence of P.W.1 andP.W.2 and contended that soon after Kokila had consumed the cowdungsolution, according to the prosecution, she had informed her mother P.W.2that only at the instance of her husband-accused herein who had preparedthe drink she consumed and vomited. The learned counsel for the revisionpetitioner would focused the attention of this Court to the evidence givenby P.W.2 in this case. P.W.2 in categorical terms has deposed before thetrial Court that Kokila had informed her(P.W.2) that the accused hadprepared cowdung powder solution and informed her that it is a cowdungpowder solution and before he returns from cinema, she must consume anddie otherwise she will be beaten to death and that afraid of him sheconsumed the said solution after her husband left for cinema and washedthe glass also and that she had vomited some yellow colour substances andhence she (P.W.2) took Kokila to her house. The learned counsel for therevision petitioner relying on the particular portion of the deposition of https://hcservices.ecourts.gov.in/hcservices/ P.W.2 contended that this will amount to dying declaration and thefindings of the learned Session judge that there is no case made outwarrants interference, and there are sufficient materials to warrantconviction under Section 306 IPC available, and in support of hiscontention, the learned counsel for the revision petitioner relied on theratio reported in 2006(2) SCC (Cri) 331 (Ghanashyam Das Vs. State ofAssam). The exact observation of the Honourable Apex Court relevant forthe purpose of this case is as follows:-"The informant Rabin Das, who is examined as PW 4 came out ofthe house of one Bhabani Sarma with the deceased on the night of7.7.1990 at about 9 pm and they were proceeding to theirrespective houses in two different directions, the deceased by abicycle and PW 4 on foot. A short while thereafter, PW 4 heardthe screams of the deceased. Then PW 4 rushed back to the spotand found Gobinda Das lying in an injured condition. By thetime he was taken to the hospital, he was declared dead. PW 4had the FIR (Ext.1) lodged in the police station at Chaygaon onthe same night in the FIR it is mentioned by PW 4 that :"When asked who has assaulted him, Gobinda Das said'Ghanashyam' and became unconscious and some timethereafter, the residents of the village came to the placeof occurrence"............................................................................................ The most incriminating evidence inthis case is the dying declaration made by the deceased to PW 4.After uttering the words that Ghanashyam "cut him" the victimbecame unconscious. It may be recalled that PW 4 was with thedeceased till they parted company to go to their respectivehouses and within a few minutes thereafter, the incident hadhappened. There is absolutely no reason why PW 4 would comeforward to give a false version to implicate the accused. Theoral dying declaration made to PW 4 was believed by the trialcourt as well as by the High Court. In the FIR lodged withoutdelay, the oral dying declaration was specifically mentioned."So the evidence of P.W.2 in this case will amount to an oral dyingdeclaration of the deceased Kokila. P.W.2 is none other than the ownsister of the accused. There is no motive attributed against P.W.2 tofalsely implicate her own brother in the crime. Further the evidence ofP.W.2 has been strengthened by the report of RDO-P.W.12 who had stated inhis evidence that in his enquiry it was brought to light that only due tothe cruelty received at the hands of the accused the deceased committedsuicide even though she did not commit suicide due to dowry harassment.From the medical evidence it is seen that poisonous substance like arominewas found in the internal organs of the deceased. It can be inferred fromthe evidence of P.W.2 that the solution which was consumed by the deceasedwas prepared and handed over by the accused. Under such circumstances, Iam of the view that even though the offence under Section 304(B) is notattracted against the accused the offences under Section 498(A) & 306 IPChave been attracted. So, under such circumstances, this Court is https://hcservices.ecourts.gov.in/hcservices/ necessarily has to interfere with the findings of the learned trial judge,which in my opinion is perverse in nature. Point is answered accordingly.20. In the result, the revision is allowed and the judgment of thetrial Court in S.C.No.16 of 2001 on the file of the Principal AssistantSessions Judge, Coimbatore, is set aside and the case is remanded to thetrial court for consideration afresh. The trial Court is directed toreappreciate the evidence already on record and to give a fresh finding inaccordance with law. The trial Court need not be carried away with theobservation made by this Court in this revision.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo1.The Principal Sessions Judge, Coimbatore.2.The Inspector of Police, B8, Coimbatore Police Station, Coimbatore.3.The Public Prosecutor, High Court, Madras.4. The Section Officer, Criminal Section, High Court, Madras. [to despatch the material part of records]Crl.R.C.No.2123 of 2002ppv[co]Gp/18.4