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SELVAKUMAR versus STATE REP. BY

High Court of Madras

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Selvakumar v. State rep. by - Criminal Appeal No. 894 of 2000 [2003] RD-TN 498 (2 July 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 02/07/2003

CORAM

THE HONOURABLE MR JUSTICE N.DHINAKAR

and

THE HONOURABLE MR JUSTICE T.V. MASILAMANI

Criminal Appeal No. 894 of 2000

1. Selvakumar

2. Varalakshmi ... Appellants. -Vs-

State rep. by

The Deputy Superintendent of Police,

Nagapattibnam,

Keevalur Police Station,

Nagapattinam. ... Respondent Prayer: Appeal against the judgment passed by the learned Additional Sessions Judge, Nagapattinam, in S.C.No. 31 of 2000 dated : 21.9.2000. For Appellant : Mr.B.Sriramulu, S.C. for

M/s.R.Kamesh.

For Respondent : Mr.M.K.Subramanian

Govt. Advocate (Crl.side)

:JUDGMENT



(Judgment of the Court was delivered by N. DHINAKAR, J) The appellants, two in number, challenge their conviction and sentence imposed upon them by the learned Additional Sessions Judge, Nagapattinam, in S.C.No. 31 of 2000 and in the judgment, they will be referred to as "A.1 and A.2" in the order they were arrayed before the learned Sessions Judge. The charge against them is that, A.1 and A.2 demanded dowry from the deceased, Meenakshi, who is the wife of A.1 and on 11.1.1999 at about 4.00 p.m., A.2 poured kerosene over the body of Meenakshi and set her ablaze by throwing a lighted match stick and that A.1 shared the common intention of A.2 in causing the death of Meenakshi. The learned trial Judge, while finding A.1 and A.2 guilty under Section 498-A IPC. as well as under Section 4 of the Dowry Prohibition Act, sentenced each one of them to six months rigorous imprisonment and also to pay a fine of Rs.1,000/- each with a default sentence of one month rigorous imprisonment for the former and sentenced each one of them to one year rigorous imprisonment and to pay a fine of Rs.2,000/- with a default sentence of two months rigorous imprisonment for the latter offence. A.2, on being convicted under Section 302 IPC., was sentenced to imprisonment for life and also to pay a fine of Rs.2,000/- with a default sentence of two months rigorous imprisonment, while A.1, on being convicted under Section 302 read with 34 IPC. under charge No.3, was similarly sentenced. The present appeal challenges their conviction and sentence.

2. The facts, which can be briefly summarised for the purpose of the disposal of the appeal, are as follows:-

The deceased is the wife of A.1. A.2 is the sister of A.1. P.W.1 is the father and P.W.2 is the mother of the deceased. P.W.5 is the relative of the accused and P.W.8 is the uncle of P.W.2. The deceased was given in marriage to the accused on 29.5.1998. At the time of marriage, though 10 sovereigns of gold jewels and a sum of Rs.10,000/- were demanded, P.W.1 was able to give only 7 sovereigns of jewels and promised to pay the amount of Rs.10,000/- at a future date. He could not pay the amount as promised by him. After the marriage, when P.W.1 went to the house of the deceased to bring her to her parental home for certain ceremonies in the month of Aadi, A.2 asked him whether he will be able to buy a scooter. P.W.1 expressed his inability to meet the said demand. The accused also told P.W.1 that unless the demands, which were earlier made, are made they will not permit the deceased to go along with P.W.1; but P.W.1 managed to convince them and brought her to his house. The family members of the accused did not go to the house of P.W.1 to bring the deceased back to her matrimonial home and therefore, P.W.1 had to write a letter with a request to come and take back the deceased.

3. In the meantime, P.W.8, Shanmuga Baskar, received a letter from A.1 in which he has mentioned about the demands made by him and his family members. The letter was shown to P.W.1. P.W.1 questioned the family members of the accused; but they denied that they ever wrote such a letter, Ex.P.6. The father of A.1 and A.2 informed P.W.1 that probably A.1 would have written the letter innocently. The deceased was brought back to her matrimonial house. After sometime, for Deepavali, P.W.1 went to the house of the deceased, where a complaint was made to him by the father of A.1 and A.2 that they were cheated by P. W.1, as they were not informed that the deceased is suffering from leukoderma. P.W.1 stated that his daughter is not suffering from any such ailment and that he was informed by his doctor that leukoderma is not leprosy and it is only a change in colour of the skin. On 14.11.19 99, he took the deceased to the doctor at Thiruvarur on the demand made by the family members of the accused and the doctor, after conducting all the tests, informed the family members of the accused that the deceased is not suffering from any skin disease. The deceased was brought to the house of P.W.1 and he promised to send her back to her matrimonial home on 6.1.1999. As no one turned up on 6.1.1999 to take back the deceased, P.W.1 went to the house of his son-in-law and asked them as to why they have not come to take the deceased. Thereafter, he left his daughter in their house.

4. In the meantime, at about 4.00 p.m. on 11.1.1999, P.Ws.3, 4 and 5 , who are the neighbours of the deceased, heard distressing the cries emanating from the house of the deceased. They rushed there and found the deceased with burn injuries. A.2 was in the house. A taxi, driven by P.W.7, was brought in which, the injured, Meenakshi, who later died, was placed and taken to the private clinic of Dr.Murugesan, who advised them to take her to Government Hospital, Nagapattinam. Accordingly, the injured, Meenakshi, was taken and admitted at Government Hospital, Nagapattinam at about 5.00 p.m. and she was examined by P.W.12, the Casualty Medical Officer. The doctor found the following:-

" Burns over the face, chest, neck, both thighs, arms and forearm. Extensive burns around 25 burns III degree burns." Ex.P.22 is the copy of the accident register issued by him. He sent Ex.P.23, an intimation, to the police station and also sent Ex.P.10, a requisition, to Judicial Magistrate, Nagapattinam, to go over to the hospital to record the statement of the deceased. A.2, who was also taken along with the injured, Meenakshi, was examined by P.W.11, the doctor, attached to Government Hospital, Nagapattinam and on examining her, found the following injury:- " Two blisters due to burns each <" diameter near inner aspect of right wrist joint."

The doctor issued Ex.P.9, the copy of the accident register. The information about the burn injuries suffered by Meenakshi was received by P.W.1 and thereafter, he also proceeded to the hospital along with his wife, P.W.2.

5. On receipt of the intimation, Ex.P.10, P.W.13, Judicial Magistrate, Nagapattinam, proceeded to the hospital and finding Meenakshi in the burns ward, questioned her in the presence of the doctor, P.W.12, at about 5.35 p.m. The doctor, after satisfying himself that she is in a fit condition to give a statement, recorded the statement given by the deceased. The said statement is Ex.P.13, in which, the doctor, P.W.12, appended his certificate that the deceased was in a fit condition to give a statement.

6. The intimation, Ex.P.23, sent by P.W.12, was received by P.W.17, Sub Inspector of Police attached to the Out-post police station at Government Hospital, Nagapattinam. He proceeded to the hospital and finding the injured, Meenakshi, in the burns ward, questioned her and she gave a statement. The said statement is Ex.P.18 in which she has affixed her thumb impression. He, thereafter, proceeded to Keevalur Police Station, where a crime was registered in Crime No. 12 of 1999 against the accused under Sections 498-A and 307 IPC. and the printed first information report is Ex.P.19. The express reports were despatched to the higher officials. The investigation in the crime was taken up by him on the orders of the Deputy Superintendent of Police, as the Inspector of Police was on other duty.

7. P.W.17, on taking up investigation in the crime, proceeded to the scene of occurrence on 11.1.19989 and at 8.30 p.m. prepared an observation mahazar, Ex.P.3 and drew a rough sketch, Ex.P.20, in the presence of P.W.6. At 9.25 p.m., he seized M.O.2, a plastic can, M.O.3, a match box, M.O.4, an un-burnt match stick, M.O.5, burnt match stick and M.O.6, a burnt saree piece under a mahazar Ex.P.4 attested by the same witness. He also seized M.O.7, cudgen leaves, under a mahazar Ex.P.5. He returned to the hospital and questioned Meenakshi and recorded her statement. The said statement given by Meenakshi is Ex.P.21. He questioned P.Ws.3, 5, 6 and 7 and recorded their statements and further investigation was taken up by P.W.22, Deputy Superintendent of Police, Nagapattinam.

8. In the meantime, Meenakshi, who was undergoing treatment at the hospital, died at about 9.00 a.m. on 12.1.1999 and the death intimation was sent to the police station. On receipt of the death intimation, the crime was altered to one under Section 302 IPC. and the express report in the altered crime is Ex.P.26. P.W.22, after taking up investigation in the crime, went to the scene of occurrence and examined it. He did not prepare any observation mahazar nor did he draw a rough sketch, as they were already prepared by P.W.17. He proceeded to the hospital and questioned P.Ws.1 to 4 and recorded their statements. On the requisition issued by the Officer, P.W.15, the Revenue Divisional Officer, went to the hospital and conducted inquest over the body of Meenakshi and prepared the inquest report, Ex.P.17. At the time of inquest, P.Ws.1, 2 and A.1 were questioned and their statements were recorded. After the inquest, a requisition was issued for conducting autopsy.

9. On receipt of the requisition, P.W.14, the Civil Assistant Surgeon, Government Hospital, Nagapattinam, conducted autopsy on the body of Meenakshi and found the following:-

" Body of a female lies on back arms close to sides and flexed at the elbow. Colour of hair, iris black burns varying from II' to III' seen from head to foot. Burns over the face, neck, front and back of trunk, both upper limbs and lower limbs and pubis. Skin completely peeled off over upper and lower limbs, back of chest cut down much seen over medial side of right ankle face. Burns seen with particles peeling of skin. Eyelids everted due to burns, lips black, tongue inside the mouth. No discharge from nose or mouth, ear shrunken due to burns. No discharge from external genitalia. Abdomen unform. Opening of thorax and abdomen, no fracture of ribs. Heart contain fluid blood with clots, inner walls of the heart congested. C/s. of lungs congested, excides frothy dark blood on compression. Opening of larynx and trachea, smell of kerosene noted. Mucosa congested. No foreign body. Hyoid bone intact stomach distended with gas and fluid. Contains 250 m of black coloured fluid with few undigested cooked rice particles, no specific odour. Mucosa congested. C/s. Of liver, spleen and kidneys congested. Small and large intestine normally distended with gas. Uterus normal size cavity empty. Bladder empty. Opening of head no fracture of skull bones. Membranes intact surface congested. Surface and c/s. Of brain congested." The doctor issued Ex.P.15, post-mortem certificate, reserving his opinion and gave Ex.P.16, final opinion, opining that the deceased died on account of shock due to extensive burns about 6 to 12 hours prior to autopsy.

10. P.W.22, continuing with his investigation, searched for the accused and arrested A.1 immediately after the midnight of 12/13.1.1999. He was brought to the police station and later sent to Court for remand. He questioned other witnesses on 14.1.1999 and recorded their statements. As A.2 was in the hospital undergoing treatment, he arrested her at 5.00 p.m. on 22.1.1999 and also gave a requisition to the Magistrate to remand her to custody. The Magistrate went to the hospital and remanded A.2 to custody for 15 days. On 6.2.1999, he received the report given by P.W.15. The said report is Ex.P.27. He questioned the doctors and recorded their statements on various dates. The material objects were sent to Court with a request to forward them for analysis. The final report was filed against the accused after the completion of investigation.

11. The accused were questioned under Section 313 of the Cr.P.C. on the incriminating circumstances appearing against them. They denied all the incriminating circumstances and A.2 has stated that it was she, who took her sister-in-law to the hospital, as she was having some skin disease. She has further stated that on account of the skin disease, the deceased was in a depressed mood. In short, A.2 by implication and the defence by suggestions to the witnesses came out with a theory that the deceased committed suicide on account of the depression she suffered. D.W.1 was also examined to show that some amount was given to the father of the deceased after the marriage in connection with the marriage performed by him.

12. The cause of death of Meenakshi is not in dispute. The doctor, P.W.14, who conducted autopsy, found burn injuries on her body. The accused also did not, before the trial Court, dispute that she died on account of burn injuries. Ex.P.15, the post-mortem certificate and the final opinion, Ex.P.16 and the evidence of the doctor, P.W.14, confirm that Meenakshi died on account of burn injuries and we, accordingly, hold so.

13. The case of the prosecution is that the deceased suffered burn injuries on account of A.2 pouring kerosene and setting her ablaze by throwing a lighted match stick. It is not in dispute that the occurrence was not witnessed by anyone and the prosecution perforce had to rely upon the statement of the deceased made to the Magistrate and to the Sub Inspector of Police, P.W.17, as well as the statement made by her during the course of investigation, which stands marked as Ex.P.21. The evidence produced before the trial Court show that A.1 and his family members were demanding dowry from P.W.1 and on account of that the relationship between the two families were stained. P.W.1 has graphically described in his evidence as to the demands made by A.1 and A.2 and also stated that since he could not meet the demands of the accused, they found fault with him and even accused him of cheating, by saying that he has suppressed the fact that the deceased is suffering from skin disease. On going through the evidence of P.Ws.1 and 2, we find no reason to reject their evidence that the deceased was subjected to cruelty and A.1 as well as A.2 was demanding dowry. In fact, the evidence of P.W.1 shows that it was A.2, who wanted P.W.1 to buy a scooter for his brother, A.1. The prosecution has, therefore, succeeded in establishing that there was stained relationship between A.1 and A.2 on one side and P.Ws.1 and 2 on the other side and that A.1 and A.2 have been demanding dowry from the family of the deceased.

14. In the above background, we will now consider the evidence of P.Ws.3, 4 and 5, who were living adjacent to the house of A.1. On the fateful day at about 4.00 p.m., when they were in their respective houses, they heard cries emanating from the house of A.1. They rushed to the place and found Meenakshi in flames. They put down the fire. They also found A.2 in the house. She had some burn injuries on her person. Immediately a taxi, driven by P.W.7, was brought to the scene of occurrence in which Meenakshi and A.2 were placed and taken to a private medical practitioner, who advised them to go to Government Hospital, Nagapattinam. Thereafter, the witnesses took the injured and A.2 and produced them before P.W.12, Casualty Medical Officer, Government Hospital, Nagapattinam, at 5.00 p.m. and the doctor found extensive burn injuries on Meenakshi and therefore, admitted her. He also admitted A.2 as she has some blisters in her palm. The doctor questioned Meenakshi as to how she suffered burn injuries and she informed the doctor that her sister-in-law poured kerosene and threw a lighted match stick resulting in burn injuries. The said statement made by the deceased is the first oral statement given by her to the doctor implicating A.2 with the crime. The said statement of the deceased is found mentioned in Ex.P.22, the copy of the accident register. The doctor, who is an independent witness, has no reason to come out with a false version by saying that the deceased implicated A.2 as the person, who is responsible for the burn injuries found on Meenakshi, the deceased in the case. According to the doctor, after admitting Meenakshi, he sent an intimation, Ex.P.10, to the Magistrate and another intimation, Ex.P.27, to the police station.

15. P.W.13, Judicial Magistrate, Nagapattinam, on receipt of the intimation, Ex.P.10, proceeded to the hospital and in the presence of P.W.12, questioned the injured, Meenakshi, after satisfying himself that she is in a fit condition to give a statement. Meenakshi gave a statement to the Magistrate, P.W.13 and the said statement is Ex.P.13. In the said statement, Meenakshi has stated that her husband and her sister-in-law were subjecting her to cruelty and were also demanding dowry from her parents and that on the date of incident, A.2 poured kerosene over her and threw a lighted match stick and that A.2 bolted the door. She has further stated that at the time of incident, A.1 and her father-in-law were not in the house. In the said statement, she has further alleged that on hearing her cries, the neighbours gathered, who removed her to the hospital and admitted her. The statement, Ex.P.13, which is the first document to come into existence in this case, therefore, shows that the deceased was set ablaze by A.2 after pouring kerosene and throwing a lighted match stick at her. The statement was recorded by the Judicial Magistrate to which a certificate was also appended by the doctor. P.Ws.12 and 13 being independent officers of two different departments, this Court finds it difficult to reject their evidence and a perusal of the statement, Ex.P.13, also shows that the said statement is voluntary in nature and difficult to discard by the Court. We, therefore, accept the statement, Ex. P.13, given by the deceased to P.W.13 and hold that A.2 poured kerosene over Meenakshi and set her ablaze and thereby caused burn injuries leading to her death.

16. Apart from the statement by the deceased to the doctor, we also have two other statements, one recorded by P.W.17 on the basis of which the crime was registered and the other recorded during the course of investigation. They are Exs.P.18 and P.21. In the above two statements also, the deceased had the same version to give and therefore, we accept all the three statements, which are consistent with her earlier oral statement to the doctor at 5.00 p.m., when she was produced before him. Once we accept that the deceased gave a statement to the Magistrate and two statements to the police officers, then we cannot but uphold the conviction of A.2 under charge No.2 framed against her under Section 302 IPC., since the three statements show that it was A.2, who poured kerosene and threw a lighted match stick at the deceased, leading to her death on account of burn injuries. Accordingly, we uphold the conviction and sentence imposed upon A.2 under charge No.2.

17. We will now take up the case of A.1 to find out whether he could have shared the common intention of A.2. As stated earlier, in the statement given by the deceased, she has stated that A.1 was not even in the house at the time of incident. In this background, it is difficult to accept the prosecution theory that A.1 shared the common intention of A.2 in causing the death of his wife, since he was not in the house and was not even seen anywhere near the scene of occurrence by any of the neighbours. On the contrary, the deceased, Meenakshi, was emphatic in her statement that A.1 was not in the house, as he was away at his work spot and that the occurrence took place during his absence. We, therefore, acquit A.1 under charge No.3, which was framed under Section 302 read with 34 ICP. Consequently, the sentence imposed upon A.1 is also set aside.

18. As we accepted the statements of the deceased in which the deceased has stated that A.1 and A.2 were demanding dowry, we uphold the conviction of both the accused under Section 498-A IPC as well as under Section 4 of the Dowry Prohibition Act. The sentences imposed upon them under the above two charges are not excessive in nature and therefore, the conviction of A.1 and A.2 under charge No.1 framed under Section 498-A IPC. and the conviction and sentence imposed upon A.1 and A.2 under charge No.4 under Section 4 of the Dowry Prohibition Act are confirmed.

19. In the result, the appeal is partly allowed. The conviction and sentence imposed upon A.1 under Section 498-A IPC. and Section 4 of the Dowry Prohibition Act are confirmed. The conviction and sentence imposed upon A.1 under Section 302 read with 34 IPC. are set aside. The conviction and sentence imposed upon A.2 under Sections 498-A, 3 02 IPC. and Section 4 of the Dowry Prohibition Act are confirmed. The sentences imposed upon A.2 will run concurrently.

Index:Yes

Internet:Yes

bs/

To

1.The Additional Sessions Judge, Nagapattinam.

2.-do- through the Principal Sessions Judge, Nagapattinam. 3.The Judicial Magistrate, Nagapattinam.

4.-do- thro' the Chief Judicial Magistrate, Nagapattinam. 5.The Deputy Superintendent of Police, Keevalur Police Station, Nagapattinam. 6.The Superintendent, Central Prison, Cuddalore and Special prison, Tiruchirapalli.

7.The Collector, Nagapattinam District.

8.The Director General of Police, Madras.

9.The Public Prosecutor, High Court, Madras.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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