Allowed

Kumaresan v. State Rep.by Its

Madras HC23 Nov 2021CRL A/332/2015

Case brief

AI extract

What is this about?

The Court allowed this criminal appeal against conviction for cruelty under Section 498(A) of IPC. It held that the prosecution failed to prove the charge beyond reasonable doubt due to material contradictions in call records and witness testimony, finding the defence version regarding prior mental distress more probable.

What did the court decide?

Conviction and sentence under Section 498(A) of IPC set aside; appellants acquitted.

Kumaresan Vs State Rep.by Its — Cheating and Forgery | Madras HC (2021)

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BAIL SLIP

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The Appellants/Accused Nos.1 to 3 namely

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Kumaresan aged 31 years S/o.Seethapathi

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1. Seethapathi aged 61 Years S/o.Gothandaraman

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1. Menaka aged 55 Years W/o.Seethapathi

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were directed to be released on Bail by the Order of this Court, dated 09/06/2015 made in CRL.M.P.No.1 of 2015 in CRL.A.No.332 of 2015.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATE OF RESERVING ORDER DATE OF PRONOUNCING ORDER 21.09.2021 23.11.2021

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CORAM

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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CRL.A.NO.332 OF 2015

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Kumaresan 2. Seethapathi 3. Menaka ... Appellants/Accused 1 to 3

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.Vs.

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The State Rep. by The Assistant Commissioner of Police, Rajamangalam Police Station, Villivakkam Circle, Chennai. (Crime No.1389 of 2012) ... Respondent/Complainant

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PRAYER:-

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Criminal Appeal is filed under Section 374(ii) of Criminal Procedure Code, to set aside the order of conviction and

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https://hcservices.ecourts.gov.in/hcservices/

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sentence passed by the learned Mahila Sesssions Judge, Chennai in S.C.No.39 of 2014 dated 14.05.2015.

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For Appellants : Mr.S.N.Arunkumar For Mr.A.Bharathi

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For Respondent : Mr.S.Vinoth Kumar Public Prosecutor

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J U D G M E N T

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The matter is heard through "Video Conference".

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2. Convicted accused A1 to A3 are the appellants herein.

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This appeal is preferred against the order of conviction and sentence passed by the learned Mahila Sessions Judge, Chennai in S.C.No.39 of 2014 dated 14.05.2015.

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The case of the prosecution is that the first accused Kumerasan married to Poornima, the daughter of P.W.1 and P.W.2. On 08.08.2010, she was found hanging in the parents home. Based upon Ex.P1/complaint given by P.W.1/father, P.W.13/Inspector of Police registered the case in crime No.1389/2012 and P.W.14/Investigation Officer, after conducting the enquiry filed charge sheet alleging that 304(B) IPC alternatively 306 and 498 (A) of IPC.

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After observing the formalities, the case was made over to learned Mahila Sessions Judge, Chennai in S.C.No.39/2014, and framed the charges against the accused A1 to A3 for the offence under Section 498A of IPC and Sections 304(b) alternatively 306 of IPC.

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Before the trial Court, the parents, brother, maternal aunt, grandmother, paternal uncle were examined as P.W.1 to P.W.6 and independent witnesses were examined as P.W.7 and P.W.8, while the attestor of the Ex.P7/observation mahazar is examined as P.W.9. The ROD who has conducted an enquiry since the said Poornima died due to unnatural circumstances within, 7 years of marriage has conducted enquiry by ROD/P.W.10 and his report is marked as P.W.8 and P.W.9. P.W.11 and P.W.12 are Doctors, who have intimated about the death of the deceased and conducted the postmortem and issued postmortem certificate under Ex.P10. P.W.13 and P.W.14 are police witnesses, who had deposed regarding discharge of official duty in receipt of Ex.P1/complaint and registration of Ex.13/FIR and P.15/alteration report and filing of the charge sheet.

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During the course of the investigation, the P.W.13/Ashokan, has collected the call details that was marked as Ex.P.16/Airtel call details and manual verification and photo claiming the seer is marked as MO.1.

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The case of the prosecution is that immediately after marriage of four months, the deceased was not conceived and hence, medical test was conducted whereby, according to the prosecution witnesses, the accused is impotent. However, he has even tortured to P.W.1 to P.W.6 to give younger sister of the deceased-Poornima, for second marriage, which was refused.

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8(i) Even for the marriage of younger sister of deceasedPoornima, the accused have neither attended the marriage nor attended the reception. While the deceased has stayed only for the two days for sister marriage, for marriage and prior day of marriage reception and hence, in view of the cruelty meted out by P.W.1 to P.W.6, the deceased has taken extreme steps to terminate herself.

¶32

The suggestive case of the defence is that even before the marriage while the deceased-Poornima was working as stenographer in the software company, had love affair with one co-worker by name Loganathan, even after marriage, there was frequent communication between one Loganathan and deceased which was found by A2 and A3. Subsequently, it was conveyed to P.W.1 and P.W.1 was also met the person in the park railway station and after enquiry, the relatives of P.W.1 had adviced the said Loganathan not to interfere with the life of Poornima and hence, the deceased was sent to her parents home during the month of May' 2012 and till her death August' 2012, she was residing in her parents home and where she committed suicide and hence, the cause of committing of suicide is not that of as alleged by P.W.1, due to the interference and the control by exercise by the parents advicing her not to keep in touch with said Loganathan, has resulted in suicide.

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To substantiate charges, the prosecution has examined the above stated oral and documentary evidence. From the evidence of P.W.1, Ex.P9/DNA Report and Ex.P10/postmortem certificate were marked through P.W.11/Dr.Devasena, P.W.10/postmortem certificate has stated as under:-

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"An incomplete, asymmetrically oblique, well defined, brownish ligature abrasion 16cm x 2 cm on the front and sides of the neck; On the front of the neck, the ligature abrasion was at the level of the thyroid cartilage and was 7 cm below the chin and 5 cm above the suprasternal notch; on the sides of the neck, the ligature abrasion was 6 cm and 9

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cm below the right and left mastoid process respectively; on the back of the neck, the ligature abrasion merges with the hairline; On dissection: The base of the ligature abrasion is pale and dry; the subcutaneous soft tissues of the neck are pale; the Hyoid bone and other laryngeal cartilages were intact.

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Accordingly, opined that the deceased would appear to have died of Asphyxia due to hanging".

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It remains to be stated that Doctor, who had conducted postmortem was also found injury measuring 7cm. In the cross examination, she has admitted that the deceased had 5x4 coagulation injury on the right biceps and she states that this could have happened a week prior to the incident.

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Accordingly, based upon the medical evidence of Doctor and postmortem certificate, this Court come to the conclusion that the deceased Poornima, daughter of P.W.1 and P.W.2 and wife of the first accused died as result of asphyxia due to hanging and committed suicide. As to the charge under Section 304(B) and 306 of IPC, for the reason recorded therein, the trial Court has disbelieved the evidence of prosecution in respect of alleged suicide note said to have been executed by the deceased viz., Ex.P4/letter and also stated that in view of the call details in Ex.P16 coupled with the answer elicited from P.W.1 and P.W.2 as to the cell number of the deceased and the first accused and also relying upon the answer elicited in the cross examination of P.W.14/Investigation Officer has held that the first accused has contacted the deceased over the cell phone few days prior to the incident neither on the prior day nor immediately before the act of the commission of suicide.

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On above reasoning, trial Court has held that the charge under Section 306 or under Section 304(B) of IPC are not made out and acquitted all the accused. In respect of 498(A) it has acquitted the A4 and however, convicted A1 to A3 for the charge under Section 498(A) and hence, this appeal is confined to charge under Section 498(A) in respect of A1, A2, A3 alone.

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The learned counsel for the appellants drew my attention to the answer elicited in the cross examination of P.W.1 and P.W.14/Investigation officer.

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Per contra, the learned Government Advocate appearing for the respondent drew my attention to the evidence of P.W.1 to P.W.6, would contend that all the private prosecution witnesses are in clear and cogent terms of the act of cruelty committed by A1 to A3 has driven her to commit suicide. Further contended in

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support of conviction under Section 498(A) of IPC.

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After trial, A1 to A3 are found to be guilty of charge under Section 498A of IPC and all the accused/A1 to A5 were acquitted for the offences under Sections 306 and 304(B) of IPC. The appeal is with regard to charge under Section 498(A) only.

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The prosecution examined 14 witnesses, marked 16 exhibits and 1 material object, no defence and exhibits were marked out of 14 witnesses. P.W.1 to P.W.6 are close relatives (father, mother, brother, paternal uncle, grandmother and paternal aunt) of the deceased. P.W.7 and P.W.8 were turned hostile, P.W.9 is the witness for observation Mahazar, P.W.10 to P.W.14 are official witnesses.

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In support of the charge for Section 498(A), the evidence of P.W.1 to P.W.6 were relied by the learned Sessions Judge for conviction under Section 498(A) of IPC.

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The sum and substance of the prosecution case is that the accused 2 to 4 insisted to keep the bedroom door open and to sleep. They never allowed the deceased to talk to their parents, in phone and asked her to switch on the speaker in the cell phone while talking to her parents.

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Further, A1 to A4, have beaten the deceased during 2010 for not bearing the baby. Further, there was a demand of money for referring the grand marriage of the sister of the deceased. P.W.1's version is that the deceased was found to be speaking in phone on previous night and it was A1, as told by the deceased and it is further alleged that all the accused gave pressure to the deceased for not bearing the baby and also claimed that A1 is potent and has asked to give the sister of the deceased for the marriage and hence, they committed cruelty, as defined under Section 498(A) of IPC.

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20(i) The version of P.W.1 to P.W.4 in the chief examination, are more or less on the same line. However, on perusal of the cross examination, I find more facts that has to be consider as to the truth and veracity of the interested witnesses namely the family members of the deceased. All the private prosecution witnesses P.W.1 to P.W.3, have admitted that three months prior to the occurrence, the deceased was residing in the parents house. Ex.P16 is the Airtel call details collected by the Investigation Officer. The date of occurrence of the commission of suicide by the deceased is on 08.08.2012.

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The investigation officer in his cross examination has admitted as under:-

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"rk;gtj;jpw ;F Kjy; ehs; ,d;fk ;kp'; fhy; te;j bry;nghd; ek;gh ; 8861695695 vd;w vz; 1k; vjphpapDila bry;nghd; ek;gh ; ,y;iy/ filrpahf 1k; vjphp kidtpaplk; ngrpaJ 6/8/2012 md;W jhd; vd;why; rhpjhd; ".

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"1k; vjphp jd; kidptpalk; filrpahf bjhiyngrpapy; ngrpaJ 6/8/2012 vd;W brhy;ypa[s ;nsd ;/ ,we;J nghd g{h;zpkh gad;gLj ;jpa bry;ypy; ,Ue;J jd; fztUila bry;nghDf;F 6/8/2012 md;W 5 Kiw ngrpa[s ;shh ;/

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",we;J nghd g{h;zpkh ifg;gl vGjpajhf brhd;d ilhpia ePjpkd;wj ;jpy; jhf;fy ; bra;atpy;iy/ mrhM4 fojj;ij g{h;zpkhjhd; vGjpdhh; vd;W mth; ifbaGj;ij xg;gpl ;L ghh;j ;jjhf brhy;ypa [s ;nsd; ".

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",we;J nghd; g{h;zpkh jd; je;ijapd; tPl;oy ; J}f;Fkhl;of ;bfhz;lhh ;/ rk;gtj;jpw ;F Kd; g{h;zpkh jd; bgw;nwhh; tPl;oy; 2012 nk khjj;jpy; ,Ue;J ,Ue;jhh;/ mth; jiujsj;jpy ; J}f;Fnghl;oUe;jhh ; ".

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"g[fhhpy; Vw;fdnt ,we;J nghd g{h;zpkhtpd; fzth; rk;gtj ;jpw;F Kjy; ehs; ifg;ngrpapd; K:yk ; ngrp gpur;rid bra;jjhf brhy;ypa [s ;shh ;fs ; vd;why; rhpjhd; ".

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Thus, this Court finds that though P.W.1 had claimed that a day prior to the occurrence, the first accused has contacted over the cell phone to the deceased-Poornima (daughter of P.W.1). As per the call register, it is seen that only on 06.08.2012, the first accused has contacted his wife namely the deceased and thereafter, he has not contacted, so is the evidence of Investigation Officer, as extracted supra.

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22(i) Further, it is also seen that on 06.08.2012, 5 times he have called, thereafter, the first accused husband has not called his wife (deceased).

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It remains to be stated that since May' 2012, the deceased Poornima (wife of the first accused) is residing with her parents house and three months prior to the date of the occurrence namely from the month of April' 2012, till the date of the occurrence on 08.08.2012, the deceased was in the house of the parents and there was no communication between the accused as could be seen from the admission and the documentary evidence issued by the Airtel call details/Ex.P16, cause serious doubt as to the version of P.W.1, that a day prior to the occurrence, the accused contacted her over phone and made harassment. The said version of PW.. cannot be believed.

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From the answer elicited in the cross examination of P.W.1, he had admitted that “the lover of daughter (deceased) was brought to park station by his brother's friend, he(P.W.1), his brother, P.W.4 and his wife went there and about one hour they negotiated with that lover of her daughter. Since the first accused has disclosed that the daughter of P.W.1, was in love with her colleague at the work spot and there were exchange of emails between them, so P.W.1 has asked him and enquired with that boy. Further, P.W.1 enquired the daughter about the same, he warned the deceased-daughter that no further allegations should come and if she commit mistake then he will beat.

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The deceased was staying in her parental home for 3 months prior to commission of suicide, Ex.P-16 call details record does not show the A1 phone number after 06.08.2012 and the Inspector of Police also admitted that there is no calls made by the A1 to deceased after 06.08.2012. Therefore, the possibility that the deceased would have committed suicide because, the accused came to know about her illegal secret relationship with Loganathan, cannot be brush aside.

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Hence, I find that in view of the answer elicited in the cross examination in the penultimate paragraphs that there was strong love affair between the deceased with one of his colleague at Rayapuram where both of them are working and P.W.1 is also admitted about the enquiry conducted with that lover along his family member at Park Railway Station, as extracted supra, goes to show that three months prior to the occurrence, the deceased (wife of A1) was residing in the parental house, there was no phone calls or any communication between the first accused with that of the deceased, also assumes significance and hence, I find that the version of prosecution witnesses (P.W.1 to P.W.6), appears to be a parriot line with improvements that was not stated during the Investigation, as admitted by the Investigation Officer.

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It remains to be stated that Ex.P4/letter written by P.W.2s daughter, said to have been projected as a suicide note. In this connection, the evidence of Investigation officer, which reads as under:-

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"ehd; rk;gtk ; ,lk; nghapUe;jnghJ ehdhf ifg;gw ;wtpy;iy vd;why; mtnu vd;dplk; bfhLj;jjh ;/ me;j fojj;ij ehd; ePjpkd;wj ;jpy; Fw;wg ;gj ;jphpf;ifa[ld ; jhf;fy ; bra;Js;nsd;/ gotk; 95 K:yk ; ePjpkd;wj ;jpy ; M$h;gLj ;jptpy;iy/ vd;dplk; fhl;lg ;gLk ; mrhM4 jhd; me;j fojk;/ mjpy; njjp. IfbaGj;J vJt[k ; nghlg;gltpy;iy/ me;j fojj;jpy; vjphpfspd; bgah; vJt[k ; brhy;yg ;gltpy;iy/ mrhM4 fojj;ij g{h;zpkh jhd; vGjpdhh; vd;W mtUila ifbaGj;ij g{h;zpkh vGjpa ilhp ifbaGj;Jld; xg;gpl ;L

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28.

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Kot[bra ;njd;/ mtw;iw ePjpkd;wk ; K:ykhf ifbaGj;J epg[zhplk; mDg;gp mwpf;if vJt[k ; bgWtjw;F eeltof;if vLf;ftpy;iy/ g{h;zpkhtpd; ifbaGj;ij ehd; xg;gpl;Lg;ghh ;jjhf mjpy; rhd;W vJt[k ; tH';ftpy;iy/

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Hence, the trial Court has rightly disbelieved and rejected the case of the prosecution to that extent of evidence part and hence, on an combined reading of the finding rendered in the preceding paragraphs, I find that though a tall claim has been made by P.W.1 to P.W.4 as if, the appellants are subjecting the deceased to cruelty. In view of the answer elicited in the cross examination of P.W.1, as extracted supra. With regard to the previous love affair between the deceased and with Loganathan and the letter of communication emails between the deceased and the said colleague of the deceased, as admitted by P.W.1 coupled with the fact that the deceased was residing in the parents house, even, three months prior to the occurrence assumes significance and negatives the version of private prosecution witness on alleged cruelty.

¶71

I find that Ex.P1 complaint was after consultation with P.W.4, who is an Advocate and hence, I find that Ex.P1, the consulted complaint

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This Court finds, there is no communication between the accused party with the deceased except on 06.08.2012, and not thereafter and also taking note of the fact that there is no demand of dowry, which forced the deceased to commit suicide as made in Ex.P1/complaint or in the statement given in the revenue witnesses. P.W.10/RDO enquiry and Exs.P8 and P9, this Court comes to the conclusion that the suggestive case of the defence is more probable than the prosecution theory and the theory of the prosecution is bristle with the infirmity and material contradiction as to the alleged communication/demand of dowry or alleged harassment through the phone, which is also stands contradicted by the documentary evidence of Ex.P16/Airtel communication call details with the admission of the Investigation Officer/P.W.14, goes to show that the theory of the prosecution suffers from material contradiction on material particulars touching the charge under Section 498(A) of IPC.

¶73

As to the cruelty said to have been committed by the appellant/accused so as to derive the wife of the first accused to commit suicide and hence, in view of the material contradiction, pointed out in the preceding paragraphs, I find no hesitation to come to the conclusion that the prosecution has miserably failed to prove the charge under Section 498(A) of IPC, beyond reasonable doubt, by operation of law, benefit of doubt goes to the accused and hence, the conviction and sentence

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passed by the learned Sessions Judge (Mahila Court) is unsustainable in law and liable to be set aside.

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In the result, this criminal appeal is allowed. The conviction and sentence as against the appellants/accused A1 to A3, in the judgment dated 14.05.2015 in S.C.No.39 of 2014 passed by the learned Mahila Sessions Judge, Chennai, is set aside. The appellants/accused are acquitted from the charge under Sections 498(A) of IPC. The fine amount, if any, paid by them is ordered to be refunded to them. The bail bonds executed by them, shall stand terminated/discharged.

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Sd/Assistant Registrar(CS VIII)

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//True Copy//

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Sub Assistant Registrar

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AT To 1. The Mahila Sesssions Judge, Chennai.

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1. The Assistant Commissioner of Police, Rajamangalam Police Station, Villivakkam Circle, Chennai.

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1. The Public Prosecutor, High Court of Madras.

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+1cc to Mr.A.Bharathi, Advocate, S.R.No.60388

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CRL.A.NO.332 OF 2015

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GPL(CO) PBS/06/12/2021

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Kumaresan v. State Rep.by Its

Case brief

What is this about?

What did the court decide?

Kumaresan v. State Rep.by Its

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

Parties & counsel

Coram

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