Kabali @ Gunasekaran v. State

BAIL SLIPThe Appellant / Accused viz.Kabali @ Gunasekaran was directed to be released on bail asper order of this Court dated 3.7.2002 and made inCrl.MP.No.5951/02 in Crl.A.No.950/02 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.06.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.950 of 2002Kabali @ Gunasekaran...Appellant/AccusedVs.State by: Inspector of Police,Thoraipakkam Police Station,Crime No.3232/1992...Respondent/ComplainantThis Criminal Appeal has been filed under Section 374 ofCriminal Procedure Code as against conviction and sentence imposedin S.C.No.109/1996 dated 02.05.2002 by the learned AdditionalSessions Judge (Fast Track Court-III) at Poonamallee to set asidethe same.For Appellant: Mr.C.VijayakumarFor Respondents: Mr.R.Muniapparaj, Govt. Advocate (Crl. Side)J U D G M E N TThis appeal is directed against the conviction recorded andsentence imposed by the learned Additional Sessions Judge (FastTrack Court-III), Poonamallee, Chengalpet district in his judgmentdated 02.05.2002 made in S.C.No.109/2006 convicting the appellantherein for an offence punishable under Section 498-A IPC andsentencing him to undergo simple imprisonment for a period of oneyear and pay a fine of Rs.1,000/- with a default sentence of simpleimprisonment for a period of three months in addition to the abovesaid substantive sentence in case of commission of default inpayment of fine. 2. The appellant stood charged and was prosecuted before thetrial court for offences punishable under Sections 306 and 498-AIPC. (Prosecution examined 12 witnesses as P.W.1 to P.W.12 and https://hcservices.ecourts.gov.in/hcservices/ marked 11 documents as Ex.P1 to P.11 in order to substantiate thecharges. No witness was examined and no document was marked on theside of the accused. No material object was produced on eitherside.) At the conclusion of trial, the learned trial judge foundhim not guilty of the charge of committing an offence punishableunder Section 306 IPC, but found him guilty of the charge ofcommitting an offence punishable under Section 498-A IPC and thusconvicted him and imposed a sentence of punishment as indicatedabove. Challenging the correctness and legality of the convictionand also the sentence the appellant has brought-forth this appealunder Section 374 Cr.P.C.3. The summary of the prosecution case, in brief, is asfollows:-i) The appellant is the husband of Gowri, the deceased in thiscase. Their marriage was solemnised on 23.02.1992. P.W.1-LakshmiAmmal is the mother of the deceased, whereas P.W.2-Ramamurthy(since deceased) was the father of the deceased Gowri. At the timeof marriage, the deceased Gowri was given 10 sovereigns of goldjewels and a cash of Rs.10,000/- along with the customary 'seer' byher parents. ii) After marriage, the appellant and his wife, namely thedeceased Gowri, lived together as husband and wife in the familyhouse belonging to the parents of the appellant for three months.Even during the said period, the deceased Gowri was treated withcruelty by the appellant herein suspecting her fidelity and alsodenying proper food for her. The appellant also squandered themoney realised by selling the jewels of the deceased. Not contentwith the same, the appellant was also harassing her to get moneyand jewels from her parents. Under such circumstances, the parentsof deceased Gowri made her and her husband (appellant herein) tocome and reside with them in a residential portion situated on theback side of the house of P.W.1 and P.W.2, which also belonged tothem. The appellant and his wife lived in the said house belongingto the parents of the deceased for about two months. Even duringthe said period, there were frequent quarrels. At one point oftime, during their stay in the house of P.W.1 and 2, the appelantwith an intent to set the deceased Gowri on fire, doused her withkerosene, but ran away from the said place without setting her onfire, as the deceased raised an alarm attracting the attention ofthe neighbours. Thereafter, the appellant and his wife, namely thedeceased Gowri, set up their separate residence at Palavakkam inone of the residential portions belonging to P.W.8-Pappammal.iii) While so, because of the cruelty and harassment caused toher by her husband, Gowri consumed oleander seeds at about 8.00 p.mon 10.12.1992 in an attempt to commit suicide. At 11.45 p.m onthe said date, the deceased was taken to Royapettah GovernmentHospital by P.W.8-Pappammal and the appellant herein for treatment.P.W.4-Dr.Chandrasekaran was informed by the deceased that sheconsumed the poison made of oleander seeds. P.W.4 recorded Ex.P2-Accident Register and admitted the deceased Gowri as an in-parient. https://hcservices.ecourts.gov.in/hcservices/ Subsequently, the deceased passed away on the very same day as thetreatment provided to her proved ineffective. On 13.10.1992 atabout 3.00 a.m, the parents of the deceased, namely P.W.1 andP.W.2, were informed of the fact that the deceased Gowri had beenadmitted in serious condition in Royapettah Government Hospital, bythe brother-in-law of the appellant herein. Thereafter, they wentto the said hospital to be informed by the hospital authoritiesthat their daughter had died and the dead body was kept inmortuary. iv) The death of deceased Gowri was informed by P.W.8-Pappammal to the police. Based on PW-8's statement (marked asEx.P8) a case was registered on the file of Thoraipakkam PoliceStation in Cr.No.3232/1992 under Section 174 Cr.P.C. The case wasregistered at about 6.30 a.m on 13.10.1992. P.W.7-Rajalakshmi, thethen Tahsildar of the area who conducted inquest gave a request tothe Medical Officer, Forensic Department, Royapettah GovernmentHospital, Chennai for conducting autopsy. Based on the same P.W.5-Dr.Diwakar conducted autopsy and submitted Ex.P4-Post Mortem reportreserving opinion as to the cause of death pending receipt ofchemical examination report. On receipt of Viscera report markedas Ex.P5, P.W.4 gave his final opinion incorporated in Ex.P5 itselfbut separately marked as Ex.P6, opining that the deceased Gowri haddied of oleander poisoning. 6. P.W.11, who was the then Personal Assistant to theCollector of Madras, on receipt of the report from P.W.7(Tahsildar), directed an investigation to be conducted by theDeputy Superintendent of Police by her communication dated26.05.1993 marked as Ex.P11. Meanwhile, P.W.10, the then DeputySuperintendent of Police took up the investigation of the case andsent an alteration report marked as Ex.P10 to the JudicialMagistrate, Saidapet altering the case to one for an offencepunishable under Section 306 IPC from 174 Cr.P.C. P.W.10, whoconducted investigation, examined the witnesses, collected thedocuments, recorded the statements of witnesses, concluded hisinvestigation and submitted a final report alleging that theappellant herein/accused had committed offences punishable underSections 306 IPC and 498-A IPC. 4. The Final Report was taken on file by the JudicialMagistrate, Saidapet as PRC No.2/96. Copies of documents werefurnished free of cost to the appellant herein/accused underSection 207 IPC and the case was, as per law committed for trial tothe Court of Sessions, Chengalpattu. The learned PrincipalSessions Judge, after taking the same on file as S.C.No.109/96,made it over to the Assistant Sessions Judge, Poonamallee fordisposal according to law. When the trial was in the half way, FastTrack Courts were constituted, pursuant to which the case wastransferred to the file of the Additional Sessions Judge (FastTrack Court-III) at Poonamallee for disposal according to law. Inthe said court, the trial was continued from the stage when it wastransferred. As many as 12 witnesses were examined and 11 documentswere marked on the side of the prosecution in order to substantiate https://hcservices.ecourts.gov.in/hcservices/ the charges framed against the appellant herein/accused.Thereafter, the incriminating materials found in the evidence ofthe prosecution were brought to the attention of the appellantherein/accused and his explanation for the same was invited byexamining him under Section 313(1)(b) after preparing aquestionnaire for such examination. The appellant/accused deniedsuch evidence as false and contended that there was no ill-treatment, cruelty or harassment on his part which lead to theunfortunate suicidal death of his wife Gowri. He once againreiterated his stand that he was innocent.5. After considering the evidence in the light of thearguments advanced on either side, the court below came to theconclusion that the case of the prosecution that the appellantabetted the suicide of the deceased was not proved beyondreasonable doubt and hence he was entitled to be acquitted of thesaid offence under Section 306 IPC. However, it came to theconclusion that there was evidence implicating him for the offenceof committing cruelty to his wife punishable under Section 498-A.Thus the court below recorded conviction for an offence punishableunder Section 498-A IPC and imposed a sentence of imprisonment andfine and also default sentence as indicated supra. 6. Questioning the correctness and legality of convictionrecorded and the sentence imposed by the court below for an offencepunishable under Section 498-A, the appellant has brought-forththis appeal on various grounds set out in the appeal petition.7. The point that arises for consideration is: whetherconviction recorded and the sentence awarded by the trial court foran offence under Section 498-A IPC suffer from any defect orinfirmity deserving interference in this appeal?8. Advancing arguments on behalf of the appellant/ accused,Mr.C.Vijayakumar, learned counsel, submitted that the court belowcommitted an error in believing the evidence of P.W.1, P.W.2 andP.W.3 - close relatives of the deceased, in arriving at aconclusion that there was cruelty and harassment on the part of theappellant herein; that the court below committed a grave error inaccepting the evidence of such relatives without putting suchevidence to the test of careful scrutiny before acceptance; thatthe court below having come to the conclusion that there was noabetment of suicide on the part of the appellant should have alsocome to the conclusion that there was no cruelty or harassment interms of Section 498-A IPC; that the evidence of independentwitness, namely P.W.8-Pappammal has been totally disregarded by thecourt below and that the court below committed grave error inarriving at a conclusion that P.W.8-Pappammal had given evidenceagainst the truth in order to save the appellant from punishment.It is the further contention of the learned counsel for theappellant that an attempt was made to discredit the evidence ofP.W.8 by showing her to be a close relative of theappellant/accused as she was projected by P.W.1 to be the sister ofthe appellant; that P.W.8 has given clear evidence to the effect https://hcservices.ecourts.gov.in/hcservices/ that she is only a distant relative of the appellant; that she hasalso stated that she is equally related to P.W.1 and P.W.2; thatP.W.1 has admitted that P.W.8 is not the blood sister of theappellant herein/accused and that therefore, the evidence of P.W.8cannot be viewed as the evidence of an interested person. Thelearned counsel contended further that the evidence of P.W.8 shouldbe viewed as the testimony of an independent witness; that thecourt below should not have solely relied on the evidence of P.W.1to P.W.3 to arrive at a conclusion that the deceased was treatedwith cruelty suspecting her fidelity and without providing herproper food; that a number of imponderables and improbabilities ofthe evidence of P.W.1 to 3 have not been taken into considerationby the court below; that, if at all the evidence of P.W.1 to P.W.3had been put to the test of careful scrutiny and theimprobabilities were taken into consideration, the court belowwould have arrived at a conclusion that the charge for an offenceunder Section 498-A also had not been proved.9. The submissions made by Mr.R.Muniapparaj, learnedGovernment Advocate (Crl. Side) in this regard were also heard andthis court gave its anxious considerations to the same. Thematerials on record including the judgment of the court below andthe appeal petition, were also perused and this court gave itsattention to all of them.10. The appellant/sole accused before the court below wasprosecuted for offences punishable under Section 306 IPC andSection 498-A IPC. He was acquitted of the first charge andconvicted of the second charge. As against the conviction for theoffence punishable under Section 498-A IPC, the present appeal hasbeen brought-forth by the appellant herein/sole accused. 11. The appellant herein/accused is none other han the husbandof the deceased. Their marriage took place on 23.02.1992. Withineight months thereafter, the appellant's wife Gowri suffered anunnatural death. Admittedly, after marriage, the appellant and hiswife were living along with the parents of the appellant in theirhouse for about three months. Thereafter they shifted theirresidence to a residential portion on the rear side of theresidential portion of the parents of Gowri, namely P.Ws.1 and 2.Admittedly, at the instance of the above said witnesses, they livedthere hardly for two months and thereafter they got a residentialportion at Palavakkam belonging to P.W.8-Pappammal for rent and setup their matrimonial home there. About three months from the dateon which they shifted their residence to Palavakkam, the deceasedGowri, wife of the appellant, consumed oleander seeds with theintention of committing suicide. On seeing her vomiting, P.W.8-Pappammal and the appellant herein took her to a private medicalpractitioner at Palavakkam and on his advice, took her toRoyapettah Government Hospital, Chennai for treatment. Only aftershe was admitted in the Royapettah Government Hospital, Chennai,the deceased Gowri revealed the fact that she consumed oleanderseeds. The doctors could not save her and she died after a brieftreatment at Royapettah Government Hospital, Chennai. https://hcservices.ecourts.gov.in/hcservices/

12. The death was reported to the police by P.W.8-Pappammaland her statement to the police has been marked as Ex.P8. Based onher statement a case was registered as Cr.No.3232/1992 on the fileof Thoraipakkam police station under Section 174 Cr.P.C. As thedeath was not a natural one and the same had occurred within a yearfrom the date of marriage of the deceased, the then Tahsildar(P.W.7) conducted inquest. The inquest report has been marked asEx.P7. Except recording the verdict of the panchayatdars thatthere was no harassment demanding dowry, the Tahsildar has notgiven any opinion as to whether there was any cruelty or harassmentdemanding dowry. Even the cause of death has not been clearlyspelt out in the inquest report. However, the case happened to bealtered by the Deputy Superintendent of Police by preparing andsubmitting an alteration report marked as Ex.P10 making the caseone for an offence punishable under Section 306 IPC and arraigningthe appellant herein as the accused. The autopsy conducted by theMedical Officer coupled with the Viscera Report of the ChemicalAnalyst marked as Ex.P5, has resulted in the submission of a finalopinion Ex.P6 to the effect that the deceased died of poisoning dueto the consumption of oleander seeds. It seems the parents of thedeceased, namely P.W.1 and 2 gave a statement to the DeputySuperintendent of Police expressing their suspicion that theirdaughter could have been killed by the appellant by administeringpoison. Excepting the said expression of suspicion, there is noother direct or even circumstantial evidence to substantiate theaccusation made by them. 13. On the other hand, there are evidence pointing to thesingular fact that the death of the Gowri was nothing but asuicide. The note made in the Accident Register, the evidence ofthe Medical Officer who admitted her in the Government Hospital,Royapettah for treatment and the evidence of P.W.8, an independentwitness, are enough to support the conclusion of the court belowthat the death of Gowri was nothing but a suicide. In fact theappellant was prosecuted for the offence of abetment of suicideunder Section 306 IPC along with an offence under Section 498-AIPC. The case of the prosecution itself happened to be one that thedeceased committed suicide. Therefore, the finding of the courtbelow that the deceased Gowri committed suicide by consumingoleander seeds, has got to be recorded so. 14. Though there are some kind of evidence in the form oftestimonies of P.W.1 to P.W.3 that there was cruelty and harassmenton earlier occasions, there is want of evidence to show that therewas any kind of abetment of suicide either by inducement or byaiding. In fact there is clear evidence to the effect that notonly P.W.8-Pappammal but also the appellant herein, on seeing thedeceased vomiting, took her to the hospital for treatment in anattempt to save her, but, unfortunately their attempt ended infailure. Though there is some evidence to the effect that thedeceased had a grievance against the appellant, as if he suspectedher fidelity and failed to provide her sufficient food, the samewould not amount to abetment of suicide. The court below has made a https://hcservices.ecourts.gov.in/hcservices/ right approach in dealing with the charge for an offence punishableunder Section 306 IPC and came to the correct conclusion that thesaid charge was not proved beyond reasonable doubt. However, thecourt below seems to have drastically departed from the saidapproach, while dealing with the charge of having committed anoffence punishable under Section 498-A. 15. Even according to the evidence of P.Ws.1 to 3, soon afterthe marriage the appellant and his wife Gowri lived with theparents of the appellant for about three months and only at theinstance of P.W.1 and P.W.2 they came to live in the back sideportion of the house of the P.Ws.1 and 2. They hardly lived therefor two months and thereafter they set up their separate residenceat Palavakkam in a residential portion belonging to P.W.8-Pappammal. The evidence of P.Ws.1 to 3 to the effect that within acouple of months from the date of marriage, the deceased was notprovided with proper food and was treated with cruelty had weighedwith the trial judge to accept their further evidence that therewas an earlier aborted attempt made by the accused to set thedecased on fire and that there was cruelty and harassment asdefined under Section 498-A IPC. In this regard, the contention ofthe learned counsel for the appellant that the testimonies ofP.Ws.1 to 3 should be approached with a considerable degree ofcaution as they are interested witnesses is well founded. Ofcourse, it is true that the evidence of near relations in suchcases cannot be discarded outright. But, if the evidence of suchinterested persons contradicts with the evidence of otherwitnesses, then the principle of putting their evidence to the testof careful scrutiny before acceptance applies with greater vigour. 16. In this case, P.W.3 does not support the evidence of P.W.1and P.W.2 that on an earlier occasion while they were residing inthe house of P.Ws.1 and 2, the accused attempted to set thedeceased on fire after dousing her with kerosene. However, he hasstated that he went to Palavakkam when the appellant and his wifeGowri were residing there and that on the said occasion, theappellant directed him not to venture to pay any more visit andinformed him that the life of his sister would be in danger, if heventured to do so. Though P.W.3 would state that his sister(Gowri) confided with him that her husband was beating hersuspecting her fidelity, the evidence of P.W.3 as a whole, seemsto be quite improbable. In fact, in the chief examination, hetried to support the prosecution version. However, without therebeing any scope for granting permission to the Public Prosecutor totreat him hostile and cross-examine him, the court below seems tohave granted such permission. Only after granting such permission,a leading question was put to him as if the appellant warned himnot to come to his house to see Gowri and informed him that herlife would be in danger, if he ventured to do so. But duringcross-examination by the counsel for the accused, he has statedthat he was not at all examined by the police.17. So far as the evidence of P.W.2 is concerned, apart fromthe witness being an interested witness, there is yet another https://hcservices.ecourts.gov.in/hcservices/ strong reason to approach his testimony with a greater caution. Hewas examined in chief on 12.12.1996, but subsequently before beingcross-examined, he passed away. The evidence of P.W.2 available onrecord had not been put to the acid test of cross-examination. Theopportunity of eliciting contradiction with reference to hisstatement recorded under Section 161 was also not available to theaccused. That is why at the outset, this court made an observationthat his evidence should be approached with greater caution. A newversion was sought to be put-forth by P.W.2 to the effect that theaccused had even branded the deceased Gowri on her legs. Thisparticular evidence of P.W.2 was not supported by any otherwitness. Even the Post-Mortem examination does not reveal thepresence of any such scars made of burns or branding. He also madean attempt to show that the deceased was not properly fed and henceon his visit along with his wife (P.W.1) they gave her Rs.50/-. Inthis regard the evidence of P.W.1 seems to be quite contra to theevidence of P.W.2. It is the evidence of P.W.2 that both P.W.1 andP.W.2 were went to see their daughter (Gowri) and on hearing fromher that she was given food only once in a day, that too in theevening, they gave her Rs.50/-. It is not the evidence of P.W.2that they also had their food with the deceased on that occasion.On the other hand, P.W.1 would say that she alone paid the visit toher daughter, while she was in her in-law's place and that apartfrom giving her a sum of Rs.50/- she also had her food with her.She has not stated anything about the alleged branding of Gowri asdeposed by P.W.2. It is not the evidence of P.W.1 that she gaveher dress materials along with Rs.50/- on the above said occasion.On the other hand, it is the evidence of P.W.2 that they gave dressmaterials also.18. It is the evidence of P.W.1 that three months aftermarriage the appellant and Gowri were made to reside in aresidential portion available on the back side of the house ofP.W.1 and P.W.2 and that they lived there for two months. Evenduring the said period of two months, according to the testimoniesof P.Ws.1 and 2, the appellant doused the deceased with kerosene inan attempt to set her on fire, but escaped from the said place whenthe deceased raised alarm attracting the attention of theneighbours including P.W.1. Admittedly, P.W.2 was not an eyewitness to the above said occurrence. However, he would venture togive evidence in support of the said version of P.W.1. Thetestimony of P.W.2 in this regard is hit by the rule againstadmission of hearsay evidence, as it has been candidly admitted byP.W.2 that the said fact came to his knowledge only from theinformation furnished by his wife. P.W.3, who is none other thanthe son of P.W.s.1 and 2 has not spoken anything about the saidoccurrence. The only evidence admissible in this regard is that ofthe testimony of P.W.1. Is it safe to rely on the solitaryevidence of P.W.1 in this regard? - The answer shall be in thenegative. If at all it was true that there was an attempt on thelife of her daughter (Gowri), naturally they (P.Ws.1 and 2) wouldhave chosen to give a complaint. But no complaint had been givencomplaining harassment or such attempt on life. The parents of thedeceased would not have ventured to send her back along with her https://hcservices.ecourts.gov.in/hcservices/ husband without even extracting an assurance in the presence of thewitnesses, preferably in writing. On the other hand, it is theevidence of P.W.1 that within 20 days from the date of suchoccurrence, the appellant along with his relatives (10 to 20 innumber) came and pacified P.Ws.1 and 2 and Gowri and made P.Ws.1and 2 to send Gowri along with the appellant and that thereafterthey set up their residence in a portion belonging to P.W.8-Pappammal at Palavakkam. None of the panchayatdars, who allegedlycame to the house of the P.Ws.1 and 2 on that occasion, has beenexamined to prove that there was such an incident and that anyassurance from the appellant was obtained before sending Gowrialong with him. 19. It should also be noted that P.W.1 has gone to the extentof denying the fact that the dead body of the deceased was handedover to P.W.2, the father of the deceased. She would say thatdespite their protest the dead body was handed over to the accusedand in their absence the dead body was buried by the accused andhis family members. On the other hand, P.W.9, the then Grade-Ipolice attached to Thoraipakkam Police Station, has given clearevidence to the effect that, after post-mortem examination, he gotback the body of deceased Gowri and handed over the same to P.W.2-Ramamurthy after getting his signature in the forms meant for suchpurpose. The correctness of the said evidence of P.W.1 has notbeen disputed. That being so, P.W.1 seems to have ventured tostate that the appellant and their people took the dead body fromthe hospital and buried it. It is not the case of the prosecutionthat there was any cruelty or harassment caused by the mother-in-law or sister-in-law of the deceased. However, P.W.1 has made anattempt to implicate them by stating that her daughter died due tothe cruelty and harassment caused by her mother-in-law and sister-in-law. The same will show her determination to see that theaccused and his family members are prosecuted and punished. Forthat reason also, relying on the sole evidence of P.W.1 shall notbe safe and her evidence in this regard has got to be rejected asunreliable. All the imponderables and the contradictions pointedout above will go to show that the evidence of P.W.1 in this regardis not reliable and that it shall not be safe to rely on thesolitary evidence of P.W.1 to come to the conclusion that there wasan earlier attempt made by the appellant to set his wife on firewhich would amount to the offence of cruelty punishable underSection 498-A. 20. However, there are evidence to the effect that theappellant suspected the fidelity of his wife (deceased Gowri) whichcaused a rift in the matrimonial life of the appellant and his wifeGowri, even during the first spell of three months from the date ofmarriage. What was the reason for such suspicion? - there is noexplanation forthcoming from the prosecution. On the other hand,there is evidence of an independent witness, namely P.W.8-Pappammal. She has given clear evidence to the effect that thedeceased Gowri was given in marriage to the appellant hereinagainst her will. It was also her evidence that from theinformation furnished by Gowri's uncle and aunt, she came to know https://hcservices.ecourts.gov.in/hcservices/ that the deceased Gowri was in love with her aunt's son but wasgiven in marriage to the appellant against her will. Therefore, itis quite obvious that there were some irritants, which provided athorn in the flesh in the matrimonial life of the appellant and thedeceased Gowri. She would have made it known to the appellant thatshe had a liking for her aunt's son and that disregarding herliking she was compelled to marry the appellant and the same wouldhave distanced the appellant/accused from Gowri. Such a revelationalso would have been the basis of suspicion entertained by theappellant/accused regarding the fidelity of the deceased. Whenthere are justifiable circumstances for suspecting the fidelity, amere suspicion without coupled with any other form of cruelty, mayat the best, amount to a civil cruelty giving a right to the wifeto seek matrimonial remedies. But the same will not amount to anoffence of cruelty as defined in Section 498-A IPC. If it is notin demand of dowry, then the act of cruelty shall be constituted byany willful conduct which is of such nature as is likely to drivethe woman to commit suicide or to cause grave injury or danger tolife, limb or health of the woman. Of course it is true that Gowricommitted suicide. But it has not been proved that the cruelty andharassment caused by the appellant drove her to commit suicide.From the discussion made above, it shall be obvious that there maybe other reasons also.21. In this case, as seen from the evidence, it is quiteobvious that the relationship of the husband and wife was notcordial right from the beginning. The same may be partly becauseof the fact that the deceased was given in marriage to theappellant against her will whereas she had a liking towards the sonof her aunt and partly because of the suspicion entertained by theappellant regarding her fidelity. The other part of the allegationagainst the appellant herein/accused to the effect that thedeceased was not provided with proper food and she was made tosurvive with the food provided for her once a day, may not be trueor may be due to the financial condition of the appellant. It isnot the case of the prosecution and it is not the evidence of anyone of the witnesses that the deceased was made to starve while theothers had sumptuous food or that she alone was made to be contentwith the food given once a day whereas the other took itthrice/twice a day. There is no evidence to show that there wasany discrimination between the husband and wife in the matter ofhaving food. On the other hand, there is also evidence to theeffect that the deceased was scolded by the appellant/accused fornot having prepared the food for them. When all these aspects aretaken into account in their proper perspective, one can come to adefinite conclusion that the prosecution theory, as if there wascruelty of the kind mentioned in Section 498-A IPC, has not beenproved beyond reasonable doubt. 22. In this case, though the case was registered based on thecomplaint statement of P.W.8 initially under Section 174 Cr.P.C,which was later on altered into a case for offences punishableunder Section 306 IPC and Section 498-A IPC, the statementallegedly given by P.W.1 and P.W.2 marked as Ex.P1 happened to be https://hcservices.ecourts.gov.in/hcservices/ the basis on which the case was altered as aforesaid. An attemptwas made by P.W.1 and P.W.2 to show that, it were they who gave thecomplaint based on which the case was registered. The normalpractice adopted by an Investigating Officer is to record thestatement of each witness separately. But, in this case, recordshave been created as if the joint statement of P.W.1 and P.W.2 wasrecorded. The statement of Ramamurthy (P.W.2) was recorded atlength and at the end of the statement a short statement of P.W.1to the effect that she concurred with the statement of P.W.2 wasalso recorded. The said statement reached the court of theJudicial Magistrate on 05.01.1996, four years after the date ofoccurrence. It was marked through P.W.1 on 12.12.1996. On thevery same day, P.W.2 was also examined. This court is not able tounderstand how such a statement was marked as direct evidence, thattoo, through P.W.1 when P.W.2 was alive. It is stated in thejudgment of the court below that P.W.2-Ramamurthy died after hisevidence in chief was recorded. But the date on which P.W.1 andP.W.2 were examined has been wrongly noted in the judgment as12.10.1996 instead of 12.12.1996. The date of death of P.W.2 hasnot been furnished. Therefore, there is a reasonable suspicionthat Ex.P1 would have been prepared with an intention of making itan admissible piece of evidence, which shall be otherwiseinadmissible, keeping in mind the health condition of P.W.2 andbeing aware of the fact that P.W.2 would not live longer.23. On a thorough re-appreciation of evidence, this courtcomes to the conclusion that the prosecution has miserably failedto prove the offence of cruelty on a married woman, punishableunder Section 498-A IPC beyond reasonable doubt. The court belowhas failed to appreciate the evidence in this case in properperspective and the same has led to a defective and erroneousdecision that the prosecution proved the commission of an offence,by the accused, punishable under Section 498-A beyond reasonabledoubt. This court does have no hesitation in holding that thefinding of the court below in this regard is defective and infirmliable to the set aside and reversed by this court in exercise ofits appellate power. Accordingly this court comes to the conclusionthat the judgment of the court below so far as it relates to thecharge for an offence punishable under Section 498-A IPC isconcerned, is liable to be set aside and reversed and that theappellant is entitled to be acquitted of the said charge also. 24. Accordingly, the appeal succeeds and the convictionrecorded by the court below for an offence under Section 498-Ashall stand set aside. The appellant is acquitted of the chargeunder Section 498-a also.asr Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional Sessions Judge (Fast Track Court-III) at Poonamallee2. Do Through The Principal Sessions Judge, Chengalpattu.3.Inspector of Police, Thoraipakkam Police Station. 3.The Public Prosecutor High Court, Madras.+ One CC To: Mr.C.Vijayakumar, Advocate, S.R.No.22198.PRE-DELIVERY JUDGMENT IN Crl.A.No.950/2002RSN(CO)GS/3/7/09