BAIL SLIP The Appellant / Accused viz. Kabali @ Gunasekaran was directed to be released on bail as per order of this Court dated 3.7.2002 and made in Crl.MP.No.5951/02 in Crl.A.No.950/02 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.06.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.950 of 2002 Kabali @ Gunasekaran ... Appellant/Accused Vs. State by: Inspector of Police, Thoraipakkam Police Station, Crime No.3232/1992 ... Respondent/Complainant This Criminal Appeal has been filed under Section 374 of Criminal Procedure Code as against conviction and sentence imposed in S.C.No.109/1996 dated 02.05.2002 by the learned Additional Sessions Judge (Fast Track Court-III) at Poonamallee to set aside the same. For Appellant : Mr.C.Vijayakumar For Respondents: Mr.R.Muniapparaj, Govt. Advocate (Crl. Side) J U D G M E N T This appeal is directed against the conviction recorded and sentence imposed by the learned Additional Sessions Judge (Fast Track Court-III), Poonamallee, Chengalpet district in his judgment dated 02.05.2002 made in S.C.No.109/2006 convicting the appellant herein for an offence punishable under Section 498-A IPC and sentencing him to undergo simple imprisonment for a period of one year and pay a fine of Rs.1,000/- with a default sentence of simple imprisonment for a period of three months in addition to the above said substantive sentence in case of commission of default in payment of fine. 2. The appellant stood charged and was prosecuted before the trial court for offences punishable under Sections 306 and 498-A IPC. (Prosecution examined 12 witnesses as P.W.1 to P.W.12 and https://hcservices.ecourts.gov.in/hcservices/ marked 11 documents as Ex.P1 to P.11 in order to substantiate the charges. No witness was examined and no document was marked on the side of the accused. No material object was produced on either side.) At the conclusion of trial, the learned trial judge found him not guilty of the charge of committing an offence punishable under Section 306 IPC, but found him guilty of the charge of committing an offence punishable under Section 498-A IPC and thus convicted him and imposed a sentence of punishment as indicated above. Challenging the correctness and legality of the conviction and also the sentence the appellant has brought-forth this appeal under Section 374 Cr.P.C. 3. The summary of the prosecution case, in brief, is as follows:- i) The appellant is the husband of Gowri, the deceased in this case. Their marriage was solemnised on 23.02.1992. P.W.1-Lakshmi Ammal is the mother of the deceased, whereas P.W.2-Ramamurthy (since deceased) was the father of the deceased Gowri. At the time of marriage, the deceased Gowri was given 10 sovereigns of gold jewels and a cash of Rs.10,000/- along with the customary 'seer' by her parents. ii) After marriage, the appellant and his wife, namely the deceased Gowri, lived together as husband and wife in the family house belonging to the parents of the appellant for three months. Even during the said period, the deceased Gowri was treated with cruelty by the appellant herein suspecting her fidelity and also denying proper food for her. The appellant also squandered the money realised by selling the jewels of the deceased. Not content with the same, the appellant was also harassing her to get money and jewels from her parents. Under such circumstances, the parents of deceased Gowri made her and her husband (appellant herein) to come and reside with them in a residential portion situated on the back side of the house of P.W.1 and P.W.2, which also belonged to them. The appellant and his wife lived in the said house belonging to the parents of the deceased for about two months. Even during the said period, there were frequent quarrels. At one point of time, during their stay in the house of P.W.1 and 2, the appelant with an intent to set the deceased Gowri on fire, doused her with kerosene, but ran away from the said place without setting her on fire, as the deceased raised an alarm attracting the attention of the neighbours. Thereafter, the appellant and his wife, namely the deceased Gowri, set up their separate residence at Palavakkam in one of the residential portions belonging to P.W.8-Pappammal. iii) While so, because of the cruelty and harassment caused to her by her husband, Gowri consumed oleander seeds at about 8.00 p.m on 10.12.1992 in an attempt to commit suicide. At 11.45 p.m on the said date, the deceased was taken to Royapettah Government Hospital by P.W.8-Pappammal and the appellant herein for treatment. P.W.4-Dr.Chandrasekaran was informed by the deceased that she consumed the poison made of oleander seeds. P.W.4 recorded Ex.P2- Accident Register and admitted the deceased Gowri as an in-parient. https://hcservices.ecourts.gov.in/hcservices/ Subsequently, the deceased passed away on the very same day as the treatment provided to her proved ineffective. On 13.10.1992 at about 3.00 a.m, the parents of the deceased, namely P.W.1 and P.W.2, were informed of the fact that the deceased Gowri had been admitted in serious condition in Royapettah Government Hospital, by the brother-in-law of the appellant herein. Thereafter, they went to the said hospital to be informed by the hospital authorities that their daughter had died and the dead body was kept in mortuary. iv) The death of deceased Gowri was informed by P.W.8- Pappammal to the police. Based on PW-8's statement (marked as Ex.P8) a case was registered on the file of Thoraipakkam Police Station in Cr.No.3232/1992 under Section 174 Cr.P.C. The case was registered at about 6.30 a.m on 13.10.1992. P.W.7-Rajalakshmi, the then Tahsildar of the area who conducted inquest gave a request to the Medical Officer, Forensic Department, Royapettah Government Hospital, Chennai for conducting autopsy. Based on the same P.W.5- Dr.Diwakar conducted autopsy and submitted Ex.P4-Post Mortem report reserving opinion as to the cause of death pending receipt of chemical examination report. On receipt of Viscera report marked as Ex.P5, P.W.4 gave his final opinion incorporated in Ex.P5 itself but separately marked as Ex.P6, opining that the deceased Gowri had died of oleander poisoning. 6. P.W.11, who was the then Personal Assistant to the Collector of Madras, on receipt of the report from P.W.7 (Tahsildar), directed an investigation to be conducted by the Deputy Superintendent of Police by her communication dated 26.05.1993 marked as Ex.P11. Meanwhile, P.W.10, the then Deputy Superintendent of Police took up the investigation of the case and sent an alteration report marked as Ex.P10 to the Judicial Magistrate, Saidapet altering the case to one for an offence punishable under Section 306 IPC from 174 Cr.P.C. P.W.10, who conducted investigation, examined the witnesses, collected the documents, recorded the statements of witnesses, concluded his investigation and submitted a final report alleging that the appellant herein/accused had committed offences punishable under Sections 306 IPC and 498-A IPC. 4. The Final Report was taken on file by the Judicial Magistrate, Saidapet as PRC No.2/96. Copies of documents were furnished free of cost to the appellant herein/accused under Section 207 IPC and the case was, as per law committed for trial to the Court of Sessions, Chengalpattu. The learned Principal Sessions Judge, after taking the same on file as S.C.No.109/96, made it over to the Assistant Sessions Judge, Poonamallee for disposal according to law. When the trial was in the half way, Fast Track Courts were constituted, pursuant to which the case was transferred to the file of the Additional Sessions Judge (Fast Track Court-III) at Poonamallee for disposal according to law. In the said court, the trial was continued from the stage when it was transferred. As many as 12 witnesses were examined and 11 documents were marked on the side of the prosecution in order to substantiate https://hcservices.ecourts.gov.in/hcservices/ the charges framed against the appellant herein/accused. Thereafter, the incriminating materials found in the evidence of the prosecution were brought to the attention of the appellant herein/accused and his explanation for the same was invited by examining him under Section 313(1)(b) after preparing a questionnaire for such examination. The appellant/accused denied such evidence as false and contended that there was no ill- treatment, cruelty or harassment on his part which lead to the unfortunate suicidal death of his wife Gowri. He once again reiterated his stand that he was innocent. 5. After considering the evidence in the light of the arguments advanced on either side, the court below came to the conclusion that the case of the prosecution that the appellant abetted the suicide of the deceased was not proved beyond reasonable doubt and hence he was entitled to be acquitted of the said offence under Section 306 IPC. However, it came to the conclusion that there was evidence implicating him for the offence of committing cruelty to his wife punishable under Section 498-A. Thus the court below recorded conviction for an offence punishable under Section 498-A IPC and imposed a sentence of imprisonment and fine and also default sentence as indicated supra. 6. Questioning the correctness and legality of conviction recorded and the sentence imposed by the court below for an offence punishable under Section 498-A, the appellant has brought-forth this appeal on various grounds set out in the appeal petition. 7. The point that arises for consideration is: whether conviction recorded and the sentence awarded by the trial court for an offence under Section 498-A IPC suffer from any defect or infirmity deserving interference in this appeal? 8. Advancing arguments on behalf of the appellant/ accused, Mr.C.Vijayakumar, learned counsel, submitted that the court below committed an error in believing the evidence of P.W.1, P.W.2 and P.W.3 - close relatives of the deceased, in arriving at a conclusion that there was cruelty and harassment on the part of the appellant herein; that the court below committed a grave error in accepting the evidence of such relatives without putting such evidence to the test of careful scrutiny before acceptance; that the court below having come to the conclusion that there was no abetment of suicide on the part of the appellant should have also come to the conclusion that there was no cruelty or harassment in terms of Section 498-A IPC; that the evidence of independent witness, namely P.W.8-Pappammal has been totally disregarded by the court below and that the court below committed grave error in arriving at a conclusion that P.W.8-Pappammal had given evidence against the truth in order to save the appellant from punishment. It is the further contention of the learned counsel for the appellant that an attempt was made to discredit the evidence of P.W.8 by showing her to be a close relative of the appellant/accused as she was projected by P.W.1 to be the sister of the appellant; that P.W.8 has given clear evidence to the effect https://hcservices.ecourts.gov.in/hcservices/ that she is only a distant relative of the appellant; that she has also stated that she is equally related to P.W.1 and P.W.2; that P.W.1 has admitted that P.W.8 is not the blood sister of the appellant herein/accused and that therefore, the evidence of P.W.8 cannot be viewed as the evidence of an interested person. The learned counsel contended further that the evidence of P.W.8 should be viewed as the testimony of an independent witness; that the court below should not have solely relied on the evidence of P.W.1 to P.W.3 to arrive at a conclusion that the deceased was treated with cruelty suspecting her fidelity and without providing her proper food; that a number of imponderables and improbabilities of the evidence of P.W.1 to 3 have not been taken into consideration by the court below; that, if at all the evidence of P.W.1 to P.W.3 had been put to the test of careful scrutiny and the improbabilities were taken into consideration, the court below would have arrived at a conclusion that the charge for an offence under Section 498-A also had not been proved. 9. The submissions made by Mr.R.Muniapparaj, learned Government Advocate (Crl. Side) in this regard were also heard and this court gave its anxious considerations to the same. The materials on record including the judgment of the court below and the appeal petition, were also perused and this court gave its attention to all of them. 10. The appellant/sole accused before the court below was prosecuted for offences punishable under Section 306 IPC and Section 498-A IPC. He was acquitted of the first charge and convicted of the second charge. As against the conviction for the offence punishable under Section 498-A IPC, the present appeal has been brought-forth by the appellant herein/sole accused. 11. The appellant herein/accused is none other han the husband of the deceased. Their marriage took place on 23.02.1992. Within eight months thereafter, the appellant's wife Gowri suffered an unnatural death. Admittedly, after marriage, the appellant and his wife were living along with the parents of the appellant in their house for about three months. Thereafter they shifted their residence to a residential portion on the rear side of the residential portion of the parents of Gowri, namely P.Ws.1 and 2. Admittedly, at the instance of the above said witnesses, they lived there hardly for two months and thereafter they got a residential portion at Palavakkam belonging to P.W.8-Pappammal for rent and set up their matrimonial home there. About three months from the date on which they shifted their residence to Palavakkam, the deceased Gowri, wife of the appellant, consumed oleander seeds with the intention of committing suicide. On seeing her vomiting, P.W.8- Pappammal and the appellant herein took her to a private medical practitioner at Palavakkam and on his advice, took her to Royapettah Government Hospital, Chennai for treatment. Only after she was admitted in the Royapettah Government Hospital, Chennai, the deceased Gowri revealed the fact that she consumed oleander seeds. The doctors could not save her and she died after a brief treatment at Royapettah Government Hospital, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 12. The death was reported to the police by P.W.8-Pappammal and her statement to the police has been marked as Ex.P8. Based on her statement a case was registered as Cr.No.3232/1992 on the file of Thoraipakkam police station under Section 174 Cr.P.C. As the death was not a natural one and the same had occurred within a year from the date of marriage of the deceased, the then Tahsildar (P.W.7) conducted inquest. The inquest report has been marked as Ex.P7. Except recording the verdict of the panchayatdars that there was no harassment demanding dowry, the Tahsildar has not given any opinion as to whether there was any cruelty or harassment demanding dowry. Even the cause of death has not been clearly spelt out in the inquest report. However, the case happened to be altered by the Deputy Superintendent of Police by preparing and submitting an alteration report marked as Ex.P10 making the case one for an offence punishable under Section 306 IPC and arraigning the appellant herein as the accused. The autopsy conducted by the Medical Officer coupled with the Viscera Report of the Chemical Analyst marked as Ex.P5, has resulted in the submission of a final opinion Ex.P6 to the effect that the deceased died of poisoning due to the consumption of oleander seeds. It seems the parents of the deceased, namely P.W.1 and 2 gave a statement to the Deputy Superintendent of Police expressing their suspicion that their daughter could have been killed by the appellant by administering poison. Excepting the said expression of suspicion, there is no other direct or even circumstantial evidence to substantiate the accusation made by them. 13. On the other hand, there are evidence pointing to the singular fact that the death of the Gowri was nothing but a suicide. The note made in the Accident Register, the evidence of the Medical Officer who admitted her in the Government Hospital, Royapettah for treatment and the evidence of P.W.8, an independent witness, are enough to support the conclusion of the court below that the death of Gowri was nothing but a suicide. In fact the appellant was prosecuted for the offence of abetment of suicide under Section 306 IPC along with an offence under Section 498-A IPC. The case of the prosecution itself happened to be one that the deceased committed suicide. Therefore, the finding of the court below that the deceased Gowri committed suicide by consuming oleander seeds, has got to be recorded so. 14. Though there are some kind of evidence in the form of testimonies of P.W.1 to P.W.3 that there was cruelty and harassment on earlier occasions, there is want of evidence to show that there was any kind of abetment of suicide either by inducement or by aiding. In fact there is clear evidence to the effect that not only P.W.8-Pappammal but also the appellant herein, on seeing the deceased vomiting, took her to the hospital for treatment in an attempt to save her, but, unfortunately their attempt ended in failure. Though there is some evidence to the effect that the deceased had a grievance against the appellant, as if he suspected her fidelity and failed to provide her sufficient food, the same would not amount to abetment of suicide. The court below has made a https://hcservices.ecourts.gov.in/hcservices/ right approach in dealing with the charge for an offence punishable under Section 306 IPC and came to the correct conclusion that the said charge was not proved beyond reasonable doubt. However, the court below seems to have drastically departed from the said approach, while dealing with the charge of having committed an offence punishable under Section 498-A. 15. Even according to the evidence of P.Ws.1 to 3, soon after the marriage the appellant and his wife Gowri lived with the parents of the appellant for about three months and only at the instance of P.W.1 and P.W.2 they came to live in the back side portion of the house of the P.Ws.1 and 2. They hardly lived there for two months and thereafter they set up their separate residence at Palavakkam in a residential portion belonging to P.W.8- Pappammal. The evidence of P.Ws.1 to 3 to the effect that within a couple of months from the date of marriage, the deceased was not provided with proper food and was treated with cruelty had weighed with the trial judge to accept their further evidence that there was an earlier aborted attempt made by the accused to set the decased on fire and that there was cruelty and harassment as defined under Section 498-A IPC. In this regard, the contention of the learned counsel for the appellant that the testimonies of P.Ws.1 to 3 should be approached with a considerable degree of caution as they are interested witnesses is well founded. Of course, it is true that the evidence of near relations in such cases cannot be discarded outright. But, if the evidence of such interested persons contradicts with the evidence of other witnesses, then the principle of putting their evidence to the test of careful scrutiny before acceptance applies with greater vigour. 16. In this case, P.W.3 does not support the evidence of P.W.1 and P.W.2 that on an earlier occasion while they were residing in the house of P.Ws.1 and 2, the accused attempted to set the deceased on fire after dousing her with kerosene. However, he has stated that he went to Palavakkam when the appellant and his wife Gowri were residing there and that on the said occasion, the appellant directed him not to venture to pay any more visit and informed him that the life of his sister would be in danger, if he ventured to do so. Though P.W.3 would state that his sister (Gowri) confided with him that her husband was beating her suspecting her fidelity, the evidence of P.W.3 as a whole, seems to be quite improbable. In fact, in the chief examination, he tried to support the prosecution version. However, without there being any scope for granting permission to the Public Prosecutor to treat him hostile and cross-examine him, the court below seems to have granted such permission. Only after granting such permission, a leading question was put to him as if the appellant warned him not to come to his house to see Gowri and informed him that her life would be in danger, if he ventured to do so. But during cross-examination by the counsel for the accused, he has stated that he was not at all examined by the police. 17. So far as the evidence of P.W.2 is concerned, apart from the witness being an interested witness, there is yet another https://hcservices.ecourts.gov.in/hcservices/ strong reason to approach his testimony with a greater caution. He was examined in chief on 12.12.1996, but subsequently before being cross-examined, he passed away. The evidence of P.W.2 available on record had not been put to the acid test of cross-examination. The opportunity of eliciting contradiction with reference to his statement recorded under Section 161 was also not available to the accused. That is why at the outset, this court made an observation that his evidence should be approached with greater caution. A new version was sought to be put-forth by P.W.2 to the effect that the accused had even branded the deceased Gowri on her legs. This particular evidence of P.W.2 was not supported by any other witness. Even the Post-Mortem examination does not reveal the presence of any such scars made of burns or branding. He also made an attempt to show that the deceased was not properly fed and hence on his visit along with his wife (P.W.1) they gave her Rs.50/-. In this regard the evidence of P.W.1 seems to be quite contra to the evidence of P.W.2. It is the evidence of P.W.2 that both P.W.1 and P.W.2 were went to see their daughter (Gowri) and on hearing from her that she was given food only once in a day, that too in the evening, they gave her Rs.50/-. It is not the evidence of P.W.2 that they also had their food with the deceased on that occasion. On the other hand, P.W.1 would say that she alone paid the visit to her daughter, while she was in her in-law's place and that apart from giving her a sum of Rs.50/- she also had her food with her. She has not stated anything about the alleged branding of Gowri as deposed by P.W.2. It is not the evidence of P.W.1 that she gave her dress materials along with Rs.50/- on the above said occasion. On the other hand, it is the evidence of P.W.2 that they gave dress materials also. 18. It is the evidence of P.W.1 that three months after marriage the appellant and Gowri were made to reside in a residential portion available on the back side of the house of P.W.1 and P.W.2 and that they lived there for two months. Even during the said period of two months, according to the testimonies of P.Ws.1 and 2, the appellant doused the deceased with kerosene in an attempt to set her on fire, but escaped from the said place when the deceased raised alarm attracting the attention of the neighbours including P.W.1. Admittedly, P.W.2 was not an eye witness to the above said occurrence. However, he would venture to give evidence in support of the said version of P.W.1. The testimony of P.W.2 in this regard is hit by the rule against admission of hearsay evidence, as it has been candidly admitted by P.W.2 that the said fact came to his knowledge only from the information furnished by his wife. P.W.3, who is none other than the son of P.W.s.1 and 2 has not spoken anything about the said occurrence. The only evidence admissible in this regard is that of the testimony of P.W.1. Is it safe to rely on the solitary evidence of P.W.1 in this regard? - The answer shall be in the negative. If at all it was true that there was an attempt on the life of her daughter (Gowri), naturally they (P.Ws.1 and 2) would have chosen to give a complaint. But no complaint had been given complaining harassment or such attempt on