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2011 Supreme(Mad) 3250
High Court of Judicature at Madras
R. MALA
Mahalakshmi
Versus
State of Tamilnadu rep.by Deputy Superintendent of Police, Maduranthagam & Others
Criminal Revision Petition No.771 of 2006
Decided on : 14-07-2011
For the Petitioners:N.S. Sivakumar, Advocate.
For the Respondents:C. Emalias, R1 - M.F. Shabana, Government Advocates (Crl. Side), R2 to R4 - R. Rajasekaran, Advocates.
Headnote:INDIAN PENAL CODE, 1860 - SECTION 302, 498-A - Charge of murder of wife by accused - HELD on facts, since the deceased was living with the accused, onus to explain cause of death was upon husband/1st accused. But, he has filed a written statement at the time of questioning under Section 313 Cr.P.C stating that since his wife was conceived, she was taken to hospital, where she was given medicine for abortion. He has further stated that on 29.12.2002, he has taken his wife from P.W.1’s house and on that date, she was weeping and stating that the pregnancy has been aborted. He further stated that he came to know at 5.00 a.m. that wife was not found. Thereafter, he came to know that she has committed suicide by falling down in to the well. As per the evidence of P.W.14, the death is not due to drowning. In such circumstances, Held, the explanation offered by A1 is untrue and unbelievable. All the accused invariably stated that she has died due to drowning. As per post-mortem certificate given by the doctor, the deceased would appear to have died of asphyxia due to smothering with multiple injuries with postmortem drowning - In such circumstances - value of the F.I.R. and the discrepancy in the evidence of P.Ws.2 and 3 in respect of list of dowry demands and delay in despatching the records to the court, lapse in investigation etc are not relevant. The Trial Court has committed an error while discarding the doctor’s evidence and the cause of death, as per the dictum of Apex Court, the doctor, who did the postmortem, is the competent person to give opinion about the cause for death. Furthermore, considering the facts of the case that the marriage has been performed on 11.07.2002 and the death has been occurred on 30.12.2002 within 5 months from the date of marriage in the matrimonial home on the date he resumed her matrimonial home, the tried Court has committed irregularity in appreciating the evidence. Fit case for setting aside the judgment of acquittal and ordering for retrial - Matter remitted back with directions.
Result : Criminal Revision Petition allowed.
1. This Revision has been preferred against the disposal of S.C.No.287 of 2005 on the file of the Additional District and Sessions Judge, Fast Track Court No.1, Chengalpet, acquitting the respondents from the charges levelled against him under Section 302 and 498(A) I.P.C. and section 4 of Dowry Prohibition Act.
2. The case of the prosecution is as follows:
The marriage between the deceased Saraswathi and 1st accused/2nd respondent was performed on 11.07.2002. The 2nd accused is the mother of the 1st accused and the 3rd accused is the grand mother of the 1st accused. At the time of marriage, 40 sovereign of jewels for the deceased and 10 sovereign for A1 and Rs.10000/- for dress and 2 vacant sites was demanded by A1, which was accepted by the parents of the deceased saraswathi. At the time of Marriage, 30 sovereign jewels for Saraswathi and 10 sovereign for A1 and Rs.5,000/- only have been given to the 1st accused. From the date of marriage, at the instigation of A2 and A3, the 1st accused demanded the balance 10 sovereign jewels and Rs.5,000/- and two plots. Since she has not met out the demand, at the instigation of A2 and A3, A1 has tortured her by both mentally and physically. she was given medicine to prevent pregnancy.
3. On 30.12.2002, at 1'0 Clock, she was murdered by the 1st accused. So, a case has been registered against A1 to A3 under Sections 498(A) and 304(B) I.P.C. P.W.1 is the mother of the deceased. P.W.2 is the sister of the deceased. P.W.3 is the brother-in-law of the deceased and husband of P.W.2. P.W.1 and P.W.2 have deposed about the marriage between the 1st accused and the deceased Saraswathi.
4. At the time of marriage, they have given 30 sovereigns jewels to the deceased and 10 sovereign to A1 and Rs.15,000/- for purchase of Cot and Rs.10,000/- for purchase of Almirah and 4 Kgs of silver vessels. After the marriage, the deceased Saraswathi was ill-treated by the accused by stating that she is illiterate and she is not well versed in the household duties. Whenever, she is facing the mental and physical cruelty, she intimated the same to P.W.1 through phone. When P.W.1 received the telephone message, she visited the accused house. At that time, it was intimated that the deceased Saraswathi does not know even to draw kolam. They have also intimated that on weighing 40 sovereign jewels, there is a deficit of one sovereign and for that they demanded 1/2 ground plot. At that time P.W.1 replied that since she is having two daughters, she cannot settle the plot to the deceased Saraswathi and she advised her daughter to adjust with them. All these things happened within a week from the date of marriage.
5. After 20 days, it was intimated by the deceased Saraswathi that the accused had stated that the bangles are not in accordance with accused taste. Then P.W.1 handed over Rs.57,000/- to his daughter to purchase 5 sovereign bangle. The accused collected Rs.820/- as interest from P.W.1.
6. After one month, she has gone to Saraswathi's house after receiving her phone call. Then, she taken her daughter to her house for 10 days. She has given proper advice to her and thus he dropped the deceased Saraswathi in her in-law's house. Then, a Panchayat has been convened and proper advice has been given to A1 also. After one week, P.W.1 received a phone call from Saraswathi. Then she rushed to Saraswathi's house, where Saraswathi was assaulted by A1 to A3, in her presence. At that time, the elder brother and sister-in-law of the 1st accused stated they will take care of her daughter. Saraswathi was intimated the fact that if she left her there, they will murder her. Hence, she has taken her daughter to P.W.2's house, where his another daughter is residing. After one week, P.W.1 has taken the deceased to her house. After one week thereafter, the deceased was taken her matrimonial home. Then she was taken to hospital and they purchased some medicine and when they compelled to take the medicine, the deceased refused t
