Madras High Court
Anantha Krishnan vs State Of Tamil Nadu on 12 November, 2009
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:   12.11.2009
					
Coram

The Honourable Mr. Justice S.TAMILVANAN

Crl. R.C.No.683 of 2005
					
Anantha Krishnan  	 				     .. Petitioner

vs.


State of Tamil Nadu
Rep.by Sub-Inspector of Police
F-3, Muthapudupettai Police Station,
Chengalpattu (East) 					      .. Respondent

	Revision Petition filed under Section 397 & 401 of Criminal Procedure Code to call for the records pertaining to the Judgment, dated 08.06.2005 made in C.A.No.84 of 2004 on the file of the Additional Sessions Judge / FTC No.V, Chengalpattu at Tiruvallur. 

	For petitioner    	:	Mr.B.Kumar, Senior Counsel
					for M/s. Suchit Anant Palande 

	For respondent    :  	Mr.A.Saravanan
					Govt. Advocate (Crl. Side)


O R D E R

This criminal revision has been preferred against the conviction and sentence imposed by Judgment, dated 08.06.2005 made in C.A.No.84 of 2004 on the file of the Additional Sessions Judge / Fast Track Court No.V, Chengalpattu at Tiruvallur, whereby the conviction of the petitioner / A1 under Section 498 A IPC alone was confirmed and modified the sentence to undergo one year Rigorous Imprisonment and to pay a fine of Rs.10,000/- under Section 498 (A) IPC, instead of 3 years Rigorous Imprisonment and to pay a fine amount Rs.5,000/-.

2. It is seen that the Assistant Sessions Court, Tiruvallur, being the trial court, after the trial, held that the guilt is proved and accordingly, convicted the petitioner / A1 under Sections 498 (A) and 304 (B) IPC and sentenced him to undergo three years Rigorous Imprisonment, under section 498 (A) IPC and to pay a fine of Rs.5,000/- with default sentence and also convicted him under Section 304 (B) IPC and sentenced him to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.10,000/- with default sentence. The co-accused / A2, mother-in-law of the deceased was acquitted from the charges framed against her. In the appeal, the learned Additional Sessions Judge / Fast Track Court No.V, Chengalpattu, confirmed the conviction of the petitioner / A1 under Section 498 (A) IPC alone, but modified the sentence into one year Rigorous Imprisonment, instead of three years Rigorous Imprisonment. The fine amount imposed by the trial court was enhanced to Rs.10,000/-, however, the petitioner / accused was acquitted under Section 304 (B) IPC. Aggrieved by which, this revision has been preferred by the petitioner / A1.

3. It is not in dispute that the petitioner / A1 is the father-in-law of the deceased Sasikala and the marriage of the said Sasikala with Yuvaraj, son of the petitioner herein had taken place on 08.07.2001 and they lived at Melappedu village. As per the prosecution case, the petitioner / A1 and the co-accused, A2, demanded dowry by way of silver articles and 11 varisai thatthu for Aadi Maruvu, = sovereign jewel, cooker and grinder. As the same were not provided by the parents of the deceased Sasikala, she was tortured by the petitioner / A1 and his wife, the co-accused A2. On account of the same, on 16.08.2001 at about 1.00 p.m., the said Sasikala set fire to herself due to the dowry harassment and died thereby the accused committed offences punishable under Sections 498(A)306and 304 (B) IPC.

4. The Trial Court held that the charges framed against the co-accused / A2 and the charge against the petitioner / A1 under Section 306 IPC were not proved and accordingly, A1 and A2 were acquitted. On appeal, the appellate court held that the charges framed under Section 304 (B) IPC against the petitioner / A1, was not proved by the prosecution beyond reasonable doubt and accordingly, the petitioner / A1 was acquitted, however, the conviction was confirmed under Section 498 (A) IPC and sentence alone was modified by the appellate Court. In this revision, this Court has to decide whether the charge framed under Section 498 (A) IPC against the petitioner / A1 has been proved beyond reasonable doubt, as held by the Courts below, so as to convict the petitioner / A1 and whether the revision preferred by the petitioner / A1 has to be allowed on the grounds raised by him.

5. Mr.B.Kumar, learned Senior Counsel appearing for the petitioner / A1 argued that the guilt against the petitioner / A1 has not been proved beyond reasonable doubt, for which he drew the attention of this Court to Ex.P.6, dying declaration and the evidence of P.Ws.1 and 2. It is not in dispute that the conviction is mainly based on Ex.P.6, dying declaration and the evidence of P.Ws.1 and 2, based on which he placed his arguments that the alleged guilt against the petitioner / A1 has not been established. It is an admitted fact that the husband of the deceased was not arrayed as an accused in the case. The Courts below have given concurrent finding regarding the charge framed under Section 498(A) IPC against the petitioner / A1, based on the evidence of P.W.1 and P.W.2, parents of the deceased and also the dying declaration of the deceased marked as Ex.P.6. However, according to the learned Senior Counsel, the prosecution evidence adduced is not sufficient to establish the alleged guilt against the petitioner / A1 beyond reasonable doubt.

6. The dying declaration marked as Ex.P.6, was recorded by P.W.8, learned Judicial Magistrate. He has obtained certificate from the duty Doctor to show that the deceased was conscious enough, while giving her dying declaration. The dying declaration shows that the deceased had given her statement uninfluenced by any other person and that she was conscious, the same was recorded by P.W.8. In order to ascertain the same, the learned Judicial Magistrate had asked various relevant questions and recorded the same in the form of questions and answers attested by the duty Doctor of Kilpauk Medical College Hospital, Kilpauk, Chennai, to show that the deceased was conscious at the time of giving her statement before the Judicial Magistrate.

7. As argued by the learned Senior Counsel appearing for the petitioner / A1, in the dying declaration, the deceased Sasikala has stated that she had set fire by herself on the date of occurrence between 1.00 and 1.30 p.m., since her husband refused to take her to her mother’s residence saying that he should get permission from his father. She has further stated that there was a dispute, as grinder and cooker were not given and that her mother-in-law asked the details and on account of the same, she suffered mental agony and hence, she set fire by herself. According to her, her husband didn’t ask anything from her. She was taken back to her husband’s residence even one week prior to the end of Aadi month, when she had been in her parents house. There was some misunderstanding between her father and the petitioner / A1, hence, she was taken to her husband’s residence even before the end of Aadi month from her parents house. She has further stated that her mother-in-law demanded silver articles, for which her mother conveyed some justifiable reason, which caused her mental agony. According to her, she was subjected to mental torture, since 5 sovereign jewels alone was given by her parents, instead of 15 sovereign jewels asked, due to all the mental agony, she poured kerosene and set herself fire. However, she has not specifically stated anything that the petitioner / A1 had demanded dowry by way of money or jewels or other articles.

8. Mr.A.Saravanan, learned Govt. Advocate (Crl.side) appearing for the respondent submitted that there is evidence to show that there was dowry harassment against the deceased and therefore, the conviction and sentence imposed by the Courts below on the petitioner / A1 under Section 498 (A) IPC is justified. On the other hand, Mr.B.Kumar, learned Senior Counsel for the petitioner contended that there is no evidence available on the side of the prosecution and he drew the attention of this Court to the dying declaration, Ex.P.6 and argued that there is no specific allegation by the deceased with regard to the dowry harassment by the petitioner / A1 and the allegation is only against the mother-in-law of the deceased, who was arrayed as A2, however, she was acquitted. It is not in dispute that there is no appeal or revision against the acquittal recorded in favour of the co-accused / A2. He has further argued that the evidence of P.W.1 is totally against the dying declaration, hence, the same cannot be construed as trust worthy to base the conviction on the petitioner / A1, under Section 498 (A) IPC.

9. As contended by the learned Senior Counsel for the petitioner / A1, the allegation by deceased in the dying declaration against the petitioner / A1 is that there was some misunderstanding between her father and the petitioner / A1, prior to the occurrence and she has specifically stated that her mother-in-law asked silver articles and complained that only 5 sovereign jewels were given instead of 15 sovereign jewels by her parents. The deceased has further added that her husband refused to take her to her mother’s residence saying that he had to get the permission from his father, which was also a cause her mental agony and therefore, there is no direct allegation in the dying declaration, in respect of dowry harassment by the petitioner / A1, as contended by the learned Senior Counsel for the petitioner. However, if corroborative evidence is available, the Court can draw inference that there was dowry harassment against the petitioner / A1, so as to convict the petitioner / A1 under Section 498 (A) IPC, in the absence of any specific allegation in the dying declaration against the petitioner / A1.

10. It is seen that P.W.3 turned hostile and did not support the prosecution case. Though, P.Ws.1 and 2 are the father and mother of the deceased, the Court can consider the evidence, if the same is trust worthy to convict the petitioner / A1. P.W.1 has deposed in the Chief-examination that after the occurrence, on information he went to Kilpauk Medical College Hospital and saw his daughter, the deceased. According to him, the deceased conveyed him that the petitioner / A1 had poured kerosene on the body of the deceased and set her fire. The aforesaid evidence adduced by P.W.1 is totally contra to the dying declaration, Ex.P.6, given by the deceased, wherein the deceased has stated that she herself had poured kerosene and set fire on her, whereas P.W.1 has deposed that his daughter, the deceased told him that the petitioner / A1 had poured kerosene on her and set fire, which shows that the evidence of P.W.1 is totally against the dying declaration, which cannot be treated as a corroborative evidence against the petitioner / A1.

11. The mother of the deceased, who was examined as P.W.2 has deposed that her deceased, daughter and her husband were living together for about one week and that there was no complaint against the husband of the deceased. According to her, the petitioner / A1 and the co-accused A2 were the cause for the death of her deceased daughter. In the cross-examination, she has deposed that there is no custom in their community demanding silver articles, while performing marriage, though the witness, P.W.2 has stated that silver articles were demanded. She has stated that there was dowry demand by the petitioner / accused and the other accused, admittedly, there was no allegation raised on dowry demand against the petitioner / A1, prior to the occurrence. As there is no specific allegation of dowry harassment against the petitioner / A1 in the dying declaration, unless there is corroborative evidence, the Court cannot convict the petitioner / A1, solely based on the dying declaration. P.W.3 turned hostile and did not support the prosecution case. P.W.4, Doctor attached to Kilpauk Medical College Hospital has deposed that he conducted postmortem on the body of the deceased, Sasikala along with the other Doctor, one Santhakumar.

12. It is seen that P.W.5 conducted inquest on 28.01.2001 on the request sent by the XIII Metropolitan Magistrate, Chennai and as per the inquest report, he came to a conclusion that the deceased died due to the self-immolation and he found that the house was broke open and according to him, he gave his opinion that the deceased Sasikala died due to dowry harassment and the inquest report has been marked as Ex.P.5. P.W.5 has stated in Ex.P.5 and also in his evidence that the deceased Sasikala was not done to death by any other person and he had examined 8 witnesses, out of them, 6 witnesses have given evidence that they did not know the cause of the death of the deceased. P.W.8 has deposed that he recorded the dying declaration of the deceased Sasikala in the presence of the duty Doctor. While giving the dying declaration, the deceased was conscious, for which, the duty Doctor has certified in the dying declaration. The Doctor, who was present at the time of recording the dying declaration was also examined as P.W.7. P.W.9 is the constable attached to Muthupettai Police Station, who had handed over the dead body of Sasikala and identified the same for postmortem. P.W.10 is the photographer, who took photographs of the dead body as requested by the police. According to him, he took colour photos and handed over the photos and negatives to the Inspector of Police.

13. P.W.11 was the Sub-Inspector of Police attached to Muthupettai Police Station. He received information from the Sub-Inspector attached to Kilpauk Medical College Hospital and took steps to record the dying declaration by the Judicial Magistrate and sent the intimation to the concerned Deputy Commissioner of Police. P.W.12 was the Inspector attached to Muthupettai Police Station, who registered the case in Crime No.173/2001 under Section 174 (3) Cr.P.C and sent the FIR to the Metropolitan Magistrate Court and copies thereon to his higher officials. P.W.13 was the Deputy Superintendent of Police, Avadi, who investigated the case and filed the charge sheet.

14. As argued by the learned Senior Counsel appearing for the petitioner / A1, the evidenciary value of P.Ws. 1 and 2 and the dying declaration marked as Ex.P.6 are the deciding factor whether the charge framed against the petitioner / A1 under Section 498 (A) IPC has been proved beyond reasonable doubt or not. In the instant case, according to him, there is no specific allegation by the deceased, Sasikala against the petitioner / A1 in the dying declaration. The evidence of P.W.1 is self-contrary and against the dying declaration marked as Ex.P.6, hence, it cannot be accepted to prove the guilt against the petitioner / A1. Similarly, the evidence of P.W.2 is also not sufficient to convict the petitioner / A1 under Section 498 (A) IPC. In support of his contention, the learned Senior counsel relied on the decision in Girdhar Shankar Tawade vs. State of Maharashtra, reported in 2002 (2) Crimes 360 (SC)

15. In the light of the decisions rendered by the Hon’ble Apex Court, it is clear that dying declaration given by an accused, properly recorded by a Judicial Magistrate is sufficient to convict the accused, if it is sufficient to establish the guilt against the accused. However, in the instant case, as per the dying declaration, though the same has been properly recorded by the Judicial Magistrate, there is no specific allegation of dowry harassment against the petitioner / A1. The deceased has stated that since her husband did not take her to her mother’s residence, in spite of her request, saying that he had to get permission from his father and due to the misunderstanding between her father and the petitioner / A1 and her mother-in-law, co-accused / A2 told her that only 5 sovereigns of gold jewels were provided instead of 15 sovereigns, due to mental agony suffered by her, she took the extreme step of committing suicide by pouring kerosene an setting fire.

16. When the deceased has categorically stated that she herself poured kerosene and set fire on her body, contrary to the same, P.W.1 has deposed that his daughter, the deceased told him that the petitioner / A1 had poured kerosene on her and set fire, which would show that his evidence is not reliable and trust worthy. Except, the evidence of P.Ws.1 and 2, there is no other evidence available on record to establish the charge framed against the petitioner / A1 under Section 498 (A) IPC. The evidence of P.W.2 is also insufficient to convict the petitioner / A1. Though there is a specific allegation against the co-accused / A2 in the dying declaration, she was acquitted by the Courts below. Even the husband of the deceased was not arrayed as accused. On the aforesaid circumstances, in the absence of any specific allegation of dowry harassment against the petitioner / A1 in the dying declaration, corroborated by other evidence, I am of the view that benefit of doubt to be given to the petitioner / A1.

17. I am of the view that though there is a concurrent findings by the courts below, the finding is not based on the evidence, hence, the same has to be construed as perverse, in the light of various decisions rendered by the Hon’ble Apex Court and this Court in convicting the accused, accordingly, the criminal revision has to be allowed.

18. In the result, this Criminal Revision Petition is allowed and the conviction and sentence imposed by the Courts below on the petitioner / A1 under Section 498 (A) IPC is set aside. The fine amount if any paid by the revision petitioner shall be refunded. The revision petitioner is on bail. His surety and bail bond shall stand discharged.

tsvn To

1. The Additional Sessions Judge / Fast Track Court No.5, Chengalpattu at Tiruvallur

2. The Sub-Inspector of Police F-3, Muthapudupettai Police Station, Chengalpattu (East)

3. The Public Prosecutor High Court of Madras Chennai

 

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