BAIL SLIP The Appellant/Accused viz., Munusamy, S/o. Kannan, was directed to be released on bail as per order of this court dated 1.7.2003 and made in Crl. MP. No.5663/2003, in Crl.A.No.152/2003 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 12.01.2010 CORAM THE HONOURABLE MS. JUSTICE R. MALA Crl.A. No.152 of 2003 Munusamy .. Appellant/Accused S/o.Kannan versus State rep. by The Assistant Commissioner of Police, Saidapet Range @ Saidapet, Chennai – 600 015 .. Respondent/Complainant Prayer: Crl.A. filed under Section 374 Cr.P.C. against the judgment of the VII Additional District and Sessions Judge, Chennai made in S.C. No.519 of 1999 dated 08.01.2003. For Appellant : Mr. Sivagnanasambandam For Respondent : Mr. D. Paul Noble Devakumar, Government Advocate (Crl. Side) JUDGMENT This appeal has arisen out of the judgment passed by the VII Additional District and Sessions Judge, City Civil Court, Chennai in S.C. No.519 of 1999 dated 08.01.2003, convicting the accused/ appellant under Section 304(B) IPC and sentencing him to undergo rigorous imprisonment for a period of seven years. 2. The case of the prosecution in a nut-shell is as follows: (i) The marriage between the deceased Sumathi and accused Munusamy has been celebrated on 03.06.1996. After the marriage, both were leading the life peacefully only for three months. After that, accused/appellant has ill-treated and harassed her. Whenever quarrel arose between the accused/appellant and deceased Sumathi, PW1- https://hcservices.ecourts.gov.in/hcservices/ Ganesan, father of the deceased, PW2-Chamundeeswari, mother of the deceased and PW3-Krishnamoorthi, paternal uncle of the deceased have mediated and compromised the matter. When the deceased was five months pregnant, the accused had assaulted her and demanded dowry. The accused gave a complaint to the police, stating that his wife is missing. The deceased who was at her parental home went to the police station along with her parents, where the deceased Sumathi has demanded divorce, but, however, on the intervention of the police, the matter has been compromised. After the birth of the male child, she went to the house of accused, where she was harassed and ill- treated by her husband and she has often intimated the fact to their parents. On 30.07.1998 at 11.30 a.m. the deceased Sumathi poured the kerosene on herself and set ablaze. She has sustained intensive burn injuries and she was admitted in Kilpauk Government Hospital. (ii) PW13-V. Saminathan, Sub Inspector of Police has received the information from the Kilpauk Government Hospital. He went to the hospital and recorded the statement from the deceased i.e. Ex.P.14, then he rushed to the K.K. Nagar Police Station and registered a case in Crime No.2258 of 1998 under Section 498(A) IPC and Section 4 of Dowry Prohibition Act, 1961 and prepared Ex.P.15-First Information Report. PW9-Dr. Gopinath gave information to PW8-Mr. Sethumadhavan, XII Metropolitan Magistrate to record dying declaration. On receiving the requistion-Ex.P.8 for recording dying declaration, in presence of him he recorded the dying declaration. Ex.P.9 sent the same to regular Court as per Ex.P.10. PW9 has given a certificate stating that at the time of recording the dying declaration, the deceased was conscious. The deceased died on 29.08.1998 at 9.40 a.m. and the death memorandum was marked as Ex.P.11. PW14-Chandrasekaran, Sub Inspector of Police has altered the FIR under Section 498(A) into 304(B) IPC. He prepared an alteration report Ex.P.17. He gone to the place of occurrence and prepared Ex.P6-observation mahazar in the presence of PW6-Vincent and others. He has also recovered Mos 1 to 3 under Ex.P.7 seizure mahazar and examined the witnesses and recorded the statements. (iii) On 31.03.1998, PW15-Deputy Tahsildar has received the information and conducted the inquest. The Inquest Report was marked as Ex.P.18. After inquest, he sent the body for autopsy along with requisition Ex.P.19. PW12-Chinna Moses, Head Constable has handed over the body to PW11-Dr. Shanthakumar for autopsy. He has conducted the autoposy and the post mortem certificate was marked as Ex.P.13.wherein the following injuries were noted: "Infected burns covered with sough seen over the neck, chest both upper limbs fully (except front of right forearm) and back of the trunk. Healed burns seen over sides of the face and over right forearm. https://hcservices.ecourts.gov.in/hcservices/ Hyoid Bone: Intact Traches: Pale Lungs: Pale and oedematous. Lungs adherent to the chest wall Heart: Contained Fluid blood to all chambers Brain: Surface vessels pale Stomach: Contained 100 ml of greenish yellow watery fluid without any specific odour. All the other internal organs on cross Section: Pale Uterus: Contained copper 'T' Bladder: Empty" (iv) PW11 has given an opinion that the deceased appeared to have died of complications of burns-septicaemia. PW13-Swaminathan, Sub Inspector of Police has altered the case under Section 498(A) into 304(B) IPC and examined the other witnesses and recorded the statements and filed the charge sheet against the accused under Section 304(B) and 406 IPC. The learned VII Additional District and Sessions Judge, City Civil Court, Chennai taken the case as S.C. No.519 of 1999 and after following the procedures framed the charges. Appellant/accused pleaded not guilty. To prove the charges levelled against the accused/appellant the prosecution examined the witnesses Pws 1 to 16, Dws 1 & 2, marked Exs. P1 to P19 and Mos 1 to 3. After the completion of the evidence on the side of prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminatory circumstances found in the evidence of the prosecution witnesses and the accused/appellant flatly denied them as false. The Sessions Court after hearing the arguments advanced on both sides came to the conclusion that the accused is guilty under Section 304 (B) IPC and acquitted him under Section 406 IPC and sentenced the accused to undergo seven years R.I. for the offence under Section 304 (B) IPC. Against that, the present appeal has been preferred challenging the conviction and sentence under Section 304(B) IPC passed by the Sessions Court. 3. Challenging the conviction and sentence of Sessions Court, the learned counsel for the appellant would contend that there is no iota of evidence to show that there is no demand of dowry and the death is not due to demand of dowry. The Trial Court has committed an error in convicting the accused under Section 304(B) IPC. The learned counsel would further submits that if at all the accused can be convicted, he can be convicted only under Section 306 IPC. The medical evidence would prove that she died on 29.08.1998 due to Septicaemia. The learned counsel would further submit that on considering the evidence of PW11-Dr.Santhakumar and Ex.P.13-Post Mortem Certificate, it is seen that PW11 has given an opinion in the post mortem certificate- Ex.P13 that the deceased appeared to have died of complication of burns-Septicaemia. So, he prayed for the acquittal of the appellant. https://hcservices.ecourts.gov.in/hcservices/ 4. Per contra, the learned Government Advocate (Criminal Side) would contend that the Sessions Court has considered the oral evidence and came to the correct conclusion that the appellant is guilty under Section 304(B) IPC. There is no reason for interfering with the conviction and sentence passed by the Sessions court, hence, he prayed for the dismissal of the Appeal. He further submits that, if the Court comes to the conclusion that the accused is not guilty under Section 304(B) IPC, he is guilty under Section 306 IPC. To substantiate his argument, he relied upon the decision reported in 2003 Criminal Law Journal 69, K.Prema S.Rao vs. Yadla Srinivasa Rao and others and prayed for the conviction of the accused either under Section 304(B) or 306 IPC. 5. Since, the appellant is found guilty under Section 304(B) IPC, it is appropriate to incorporate Section 304B IPC, which reads as under:- "304 B Dowry death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation – For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 6. The five mandatory ingredients of the Section 304(B) IPC are as under:- i.The death of a woman must have been caused by burns or bodily injury or other wise than under normal circumstances; ii.Such death must have occurred within seven years of her marriage; iii.Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband. iv.Such cruelty or harassment be for or in connection with demand of dowry. v.Such cruelty or harassment is shown to have been meted out to the woman soon before her death. https://hcservices.ecourts.gov.in/hcservices/ 7. Admittedly, the marriage between the deceased Sumathi and accused Munusamy has been performed on 03.06.1996, which has been evidenced by Exs.P1 to P3. The alleged occurrence has taken place on 30.07.1998. So, the death of the deceased Sumathi has taken place on 30.07.1998, which is within seven years from the date of the marriage. As per the evidence of PW11-Dr.Senthil Kumar and Ex.P13- Post-mortem Certificate, the death of the deceased Sumathi is only caused by the burn injuries has been proved by the prosecution. So, the first and second ingredients of Section 304(B) are attracted. 8. The third ingredient is, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband, soon before her death for demand of dowry. 9. Before considering Ex.P9-dying declaration, this Court has to consider the veracity of the same as to whether it is admissible in evidence. Admittedly, Ex.P9-dying delcaration has been recorded by PW8-Mr.Sethumadhavan, XII Metropolitan Magistrate. On Receipt of the requisition-Ex.P8, he recorded Ex.P9-dying declaration. On considering the evidence of PW8-Mr.Sethumadhavan, XII Metropolitan Magistrate and Ex.P9-dying declaration, Dr.Jayaraman has given a certificate stating that the patient was fully conscious and well oriented when the above statement was recorded by the Magistrate. So, there is no reason for discarding the evidence of PW8 and Ex.P9. In his cross-examination, PW8 has stated that at the time of recording the dying declaration, the doctor was present. He denied the suggestion that, the deceased Sumathi has given the dying declaration out of the fear. As per the evidence of PW9-Dr.Gopinath, he has given the death intimation marked as Ex.P11 stating that she died on 29.08.1998 at 9.40 am. The dying declaration has been recorded on 30.07.1998. Nearly, after a month, she died. In such circumstances, I am forced to accept Ex.P9-Dying declaration. In the dying declaration, it was stated as follows:- ,d;W 30/07/98 tpahHf;fpHik fhiy 9 kzpf;F. tPl;oy; ehd; ,Ue;jnghJ. vd; tPl;Lf;fhuh; bfhLik jhs Koahky; ehdhf fpUc&;zhapy; Cw;wp bfhz;L. tj;jp itj;Jf;bfhz;nld;/ mg;nghJ tPl;oy; ahUk; ,y;iy btspna jPa[ld; Xo te;njd;/ v';nf Xondd; vd;W bjhpatpy;iy. mUfpy; cs;s nfhapy; fpzw;wpy; tpGe;Jtpl;nld;/ vd;id fpzw;wpy; ,Ue;J vLj;j Ml;fs; ahh; vd bjhpahJ/ vd; mk;kh. Mah jhd; nf/vk;/rp/ M!;gj;jphpf;F vd;id Tl;o te;jdh;/ vd;id gw;wp mrp';f mrp';fkhf jpl;Lfpwhh;/ vd; fzth; vd;id gpof;ftpy;iy vd vd; fzth; brhy;yp Vd; vd;W ehd; nfl;l nghJ kaph; fij (N.C.) nfl;fhnj vd;whh;/ bts;is ngg;ghpy; ifbaGj;J nghl;Ltpl;L cd; mf;fh tPl;Lf;F XL vd;whh;/ mof;fo moj;J brj;jhy; rht[ eP ,y;yhtpl;lhy; , d;bdhUj;jp vd brhy;fpwhh;/ ,ut[ kl;Lk; vy;yhh; vJf;F g{ th';fp bfhLj;J ey;yth; khjphp elf;fpwhh;/ ,d;W fhiy v';fhtJ xHpe;J bjhiy vd jpl;odhh;/ mjdhy;. ehd; jP itj;Jf;bfhz;nld;/ https://hcservices.ecourts.gov.in/hcservices/ 10. On receipt of the information, PW13-Swaminthan, Sub-Inspector of Police, had gone to the hospital and recorded the complaint-Ex.P14 from the victim. On that basis only, a case has been registered. In Ex.P.14-complaint she has stated that on 29.07.1998 when she was in menstrual cycle, at midnight 12 O clock her husband forced her to have sexual intercourse with her for which she denied. Immediately, he assaulted in her cheek and scolded with filthy language. Since she was often subjected to cruelty and harassment, she had no another way except to commit suicide. 11. At the juncture it is appropriate to consider the ingredients of Section 304(B) IPC, but, admittedly she has not stated that there was a demand of dowry. At first she has stated that her husband demanded Rs.2,000/-, as dowry and after that she has not stated anything about dowry, but she has stated that she was forced to commit suicide because of the cruelty meted out on her by her husband whereby, she was forced to have sexual intercourse, during the period of menstruation. Due to unbearable cruelty she was forced to commit suicide. 12. On considering Ex.P.14-complaint and Ex.P.9-dying declaration, there is no evidence to show that there is demand of dowry. In such circumstances, it is appropriate to consider the decision reported in 2003 Criminal Law Journal Page 69, (K. Prema S. Rao vs Yadla Srinivasa Rao and others) wherein the Supreme Court has held as under:- "In the instant case the evidence which has been found acceptable by the Trial Court and High Court against accused husband is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death "otherwise than under normal circumstances". To attract the provisions of Section 304-B, IPC, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry". There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage ritual as "pasupukumuma". The harassment or cruelty meted out to the deceased wife by the husband after the marriage to force her to transfer the land in his name was 'not in connection with any demand for dowry'. One of the main ingredients of the offence of "demand of dowry" being absent in this case, the accused could not be said to have committed offence under Section 304-B. In the instant case the accused, husband https://hcservices.ecourts.gov.in/hcservices/ pressurised and harassed the deceased to part with the land received by her from her father as 'Stridhan'. As a method adopted for harrassment the Postal Mail of her relatives sent to her was suppressed by the husband who was in a position to do so being a Branch Post Master in the village. When the letters were discoverd by the wife and she handed them over to her father (PW 1) she was driven out of the house. This cruel conduct of the husband led the wife to commit suicide. On basis of such evidence the conviction of the accused for the offence of 'cruelty' under S. 498-A by trial court and High Court was found to be proper. As a result of such cruel treatment the wife was driven to commit suicide. Thus offence of abetment of committing suicide punishable under S.306, IPC would be clearly made out against accused and for that purpose presumption under S.113-A of the Evidence Act can be raised against him. Therefore the accused would be liable to be convicted under S.306, IPC even though his acquittal for commission of the offence of 'dowry death' punishable under S. 304-B, IPC, not found liable to be disturbed." 13. Applying the said decision to the facts of the case, Ex.P.9- Dying declaration and Ex.P.14-Complaint have clearly proved that the deceased Sumathi was ill-treated and harassed by the accused, which forced her to commit suicide. One of the main ingredients of Section 304(B) IPC is that it has to be established that soon before her death she was subjected to cruelty and harassment in connection with the demand of dowry. But as per Ex.P.9 and Ex.P.14, there is no evidence to show that there is a demand of dowry. In such circumstances, one of the main ingredients of the offence of dowry demand being absent in this case, so, I am of the opinion that the accused/appellant could not be convicted for the offence under Section 304(B), but, he could be convicted under 306 IPC for abatement of suicide. 14. On the side of defence DW1 and DW2 were examined to prove that there is no demand of dowry. 15. At this juncture, the learned counsel for the appellant relied upon the decision reported in MANU/SC/0001/2010 pertaining to judgment in Crl.A. No.1301 of 2002 dated 05.01.2010 (Gangula Mohan Reddy vs State of Andhra Pradesh) wherein the Supreme Court has observed that mere allegation cannot be basis for the conviction for abetment to suicide. On considering the citation, it was stated that there is no straight-jacket formula for considering as to whether each and every act of a person has been valid for commital of https://hcservices.ecourts.gov.in/hcservices/ suicide. Human sensitivity of each individual differs from the other and different people behave differently in the same situation. There should be an intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. There cannot be any straight-jacket formula in dealing with such cases. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. On considering the above citation, it was stated that for the conviction of a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. The above ratio decidendi is laid down in the decision cited supra. But here, the deceased Sumathi has stated that 3 ½ months prior to the incident, there was a panchayat convened, in which, it was decided not to demand dowry and not to harass her. So, I am of the opinion that there is no demand of dowry after the Panchayat, which has taken place 3 ½ months prior to the incident. 16. A reading of the complaint, Ex.P.14 would prove that there is no demand of dowry, but she was subjected to cruelty. It has been corroborated by the evidence of PW1 and PW2. But the learned counsel for the appellant/accused focussing upon Ex.P.9-dying declaration has stated that there is no demand of dowry. Admittedly, the averment in Ex.P.9-dying declaration shows that she has not whispered anything about the demand of dowry, but she has stated that she was unable to bear the cruelty and harassment meted out by the appellant/accused as a result of which she was forced to commit suicide. 17. Considering the entire averment in Ex.P.9-dying declaration and Ex.P.14-complaint it is clearly proved that she was subjected to cruelty and harassment, which she was unable to bear and it forced her to commit suicide. So, human sensitivity of each individual differs from the other and different people behave differently in the same situation. Likewise, on 29.07.1998 at midnight 12 O clock, the accused/appellant forced the deceased Sumathi to have sexual intercourse with him even when she was in the menstrual period, which she was unable to bear and it forced her to commit suicide on the next day morning, viz. 30.07.1998, after his departure from the house. 18. In the above said circumstances, I am of the opinion that even though soon before her death there is no demand of dowry, but the deceased herself in her complaint Ex.P.14 has stated that 3½ months before the incident a Panchayat has been convened and in that he has sworn that he will not to demand dowry. So, even though, he has not demanded dowry, but, he tortured her mentally and physically, which forced her to commit suicide. So I am of the opinion that unable to bear the cruelty and harassment meted out by the accused/appellant on 29.07.1998 at mid night 12 O clock, she was forced to commit suicide. So, I am of the view that the appellant/accused was not guilty under Section 304(B) IPC, but, he https://hcservices.ecourts.gov.in/hcservices/ was only guilty under Section 306 IPC. 19. At this juncture, the learned counsel for the appellant would contend that the appellant/accused has not married anybody and he is having parents who are aged and a son. The learned counsel has further stated that the Sessions Court has come to the conclusion that the appellant is guilty under Section 304(B) IPC and therefore, he was sentenced to undergo seven years rigorous imprisonment. Here, once this Court has come to the conclusion that the accused/appellant was found guilty under Section 306 IPC, some leniency may be shown in sentence and he prays for reduction of the sentence awarded to the appellant. Considering the same, I am inclined to reduce the period of rigorous imprisonment from seven years to five years. 20. In fine, i.this Criminal Appeal is partly allowed. ii.The conviction and sentence passed by the trial court under Section 304(B) are set aside. iii.The appellant/accused is found guilty under Section 306 IPC and therefore, he is convicted under Section 306 IPC. iv.The appellant/accused is sentenced to undergo rigorous imprisonment for a period of five years. v.Since, the appellant/accused is on bail, the Sessions Court is directed to take steps to secure his custody to undergo the remaining period of sentence. vi.The period of imprisonment already undergone by the appellant/accused shall be set off under Section 428 Cr.P.C. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. paa To 1.The XVII Metropolitan Magistrate, Saidapet, Chennai. 2.-Do- Through The Chief Metropolitan Magistrate, Egmore, Chennai. 3.The VII Additional District and Sessions Judge, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 4. Do Through The Principal Sessions Judge, Chennai 5. The Superintendent, Central Prison, Vellore. 6. The Assistant Commissioner of Police, Saidapet Range @ Saidapet, Chennai – 600 015 7. The Public Prosecutor, High Court, Chennai-104. 8. The Section Officer, Criminal Section, High Court, Chennai-104. Crl.A. No.152 of 2003 GV (CO) RH (25.2.10) https://hcservices.ecourts.gov.in/hcservices/