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2019 Supreme(Mad) 3161

IN THE HIGH COURT OF MADRAS
A.D. JAGADISH CHANDIRA, J.
Duraisamy and Ors. - Appellants
Versus
State - Respondent
Crl. A. No. 509 of 2017
Decided On : 21-11-2019

Advocates Appeared:
For the Appellant : E.C. Ramesh.
For the Respondents: M. Mohamed Riyaz, A.P.P.

Headnote:

Indian Penal Code, 1860 – Section 498, 306, 304 and 107 – Criminal Procedure Code, 1973 – Section 313, 161, 164 and 174 – Indian Evidence Act – Section 113 – Prosecution – Denied – Nature of Harassment – Demanding Dowry – Rigorous Imprisonment – Criminal Appeal is filed against the judgment of conviction and sentence made by Sessions Judge, Manila Court, Salem, convicting and sentencing each of Appellants offence to undergo Rigorous Imprisonment for three years and to pay each in default to undergo Simple Imprisonment for six months and for offence to undergo Rigorous Imprisonment for ten years and to pay undergo six months Rigorous Imprisonment and ordering sentences to run concurrently – Appellants/Accused used to often subject the deceased to cruelty by harassing and abusing her, by demanding dowry – Due to harassment deceased underwent miscarriage and fell ill – Held, Court is of the firm opinion that the Prosecution has failed to prove the charges against Appellants beyond reasonable doubts and that none of basis chosen by Trial Court to convict Appellants has the sanction of law and Trial Court erred in convicting Appellants placing reliance on untested statement recorded by Revenue Divisional Officer and exhibits and placing reliance on statement recorded witnesses, more particularly when other independent witnesses from whom statement had been recorded have not been examined before Court – Magistrate, at a time when accused was not in picture, became part of records then Trial Court should not have relied on such statements to base its conviction and there is danger of Trial Court using them as substantive evidence – Criminal Appeal is allowed.

JUDGMENT :

A.D. Jagadish Chandira, J.

1. This Criminal Appeal is filed, against the judgment of conviction and sentence, dated, 31.07.2017, made in S.C. No. 110 of 2015, by the Sessions Judge, Manila Court, Salem, convicting and sentencing each of the Appellants/A1 to A5 for the offence under Section 498A of IPC to undergo Rigorous Imprisonment for three years and to pay a fine of Rs. 2,000/- each, in default to undergo Simple Imprisonment for six months and for the offence under Section 306 of IPC to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs. 2,000/- each, in default to undergo six months Rigorous Imprisonment and ordering the sentences to run concurrently.

2. The case of the Prosecution is as follows:-

    (a) The Appellant/A1 is the husband of the deceased, Yasodha and the Appellants/A2 and A3 are in laws of the deceased and the Appellants/A4 and A5 are the sister and brother of the Appellant/A1. The deceased and A1 fell in love with each other and due to their relationship, the deceased became pregnant and the parents of the deceased, on coming to know about the same, with the intervention of elders, had performed their marriage 2½ years prior to the occurrence and thereafter, the deceased was living with A1 along with A2 to A5 as a joint family.

(b) After marriage, the Appellants/Accused used to often subject the deceased to cruelty by harassing and abusing her, by demanding dowry. Due to the harassment, the deceased underwent miscarriage and fell ill. Even then, the Appellants/Accused subjected the deceased to cruelty for not meeting out their demand of dowry. On 9.2.2013, A2 to A5 some time prior to 8.15 a.m. had threatened the deceased saying that if she failed to meet out their demand of dowry, they would perform the marriage of A1 with another girl and saying so, A1 had also threatened the deceased several times over phone prior to 9.2.2013. By such willful acts, the Appellants drove the deceased to commit suicide by consuming oleander seeds, which is a poisonous substance, on 9.2.2013 at about 8.15 and the deceased died on 9.2.2013 at 7.00 p.m. within seven years of her marriage in the Hospital. Hence, the Inspector of Police, Kondalampatty, Salem had laid the charge sheet against the Appellants/A1 to A5 for the offences under Sections 498A, 306 and 304B of IPC.

3. The case was taken on file in PRC No. 4 of 2015, by the Additional Manila Judge, Salem and after furnishing necessary copies to the accused under Section 207 of Cr.P.C., the case was committed to the Court of Sessions. The Principal District Judge, Salem had assigned SC. No. 110 of 2015 and made over the case to the Sessions Judge, Mahila Court and charges were framed against the accused under Sections 498A, 306 and 304B of IPC. The substances of the charges were put forth to the accused and they were questioned. The accused had denied the charges and sought for trial. In order to bring home the charges against the accused, the prosecution examined P.W.1 to P.W.14 and also marked Exs. P1 to P22.

4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused have come with the version of total denial and stated that they have been falsely implicated in this case. On the side of the defence, Ex. D1 was marked and the Appellant/A1 was examined as D.W.1. The court below, after hearing the arguments advanced on either side and also looking into the materials available on record, found the Appellants/Accused guilty and awarded punishments, as referred to above, which is challenged in this Criminal Appeal.

5. This court heard the submissions of the learned counsel on either side.

6. The learned counsel for the Appellants would submit that the Trial Court erred in convicting the Appellants/Accused when though P.W. 1, father and P.W.2 mother of the deceased have initially supported the case of the

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