K.M.Senthil Kumar v. State Rep. by

J U D G M E N T The Criminal Appeal has been filed to set aside the judgment of the learned Sessions Judge, Mahila Court, Coimbatore in S.C.No.115 of 2013 dated 09.03.2016.

¶2The learned Counsel for the Appellant submitted that the Appellant is the Accused-1 before the trial Court. The learned Counsel for the Appellant invited to the charges framed by the trial Court. As per the charges framed by the trial Court, Accused-1 to Accused-4 were charged for the offences under Sections 498(A) and 306 of IPC . The learned Counsel for the Appellant also invited the attention of this Court to the judgment of the trial Court, where the trial Court on the basis of evidence available, acquitted Accused-2/Father of Accused-1, Accused-3/Mother of Accused-1 and Accused-4/Sister of Accused-1.

¶3It is the submission of the learned Counsel for the Appellant that the Accused-1 alone had preferred this Appeal against the judgment of conviction recorded by the learned Sessions Judge, Fast Track Mahila Court, Coimbatore in S.C.No.115 of 2023 dated 09.03.2016.

¶4The brief facts which are relevant for deciding the case are as follows:

4.1. The deceased was the wife of Accused-1 and the daughter of his maternal Uncle who was the P.W-1 before the trial Court. Marriage between deceased and Accused-1 took place on 23.05.2002. As per the prosecution case, there was an altercation between the deceased and the neighbours near the public tap, in which the Husband/Accused-1 intervened and asked her not to pick up quarrel with the neighbours. There was altercation between them in which Accused-1 was alleged to have slapped her in front of the public, near the public tap. Immediately she went back home and consumed pesticide meant for flower pot (Monocrotophos). The parents of the deceased were also residing nearby. While so, there had not been any complaint of dowry harassment or any such complaint during the life time of the deceased. The deceased was alleged to have consumed pesticide. Particularly, the Accused-1 along with the P.W-1 had taken the deceased to a Private Hospital from there, taken to Government General Hospital at Coimbatore. On the way, she died. Therefore the complaint was preferred under Ex.P-1 by P.W-1 to the P.W-7/Sub-Inspector of Police and registered the case under Crime No.105 of 2010 for the offence under Section 498(A) and 306 of IPC on the file of the Annur Police Station. P.W-10 proceeded with the investigation, visited the place of residence of the Accused-1 and prepared the Rough Sketch and Observation Mahazar in the presence of the witness and conducted Inquest over the body of the deceased at the Hospital Mortuary. After examining the witnesses, he laid the final report before the Court of the learned Judicial Magistrate, Avinasi.

¶5The learned Counsel for the Appellant invited the attention of this Court to the evidence of P.W-1/defacto-complainant/father of the deceased, P.W-2/Ward Counselor of the area where the Accused and the deceased as well as the parents of the deceased reside. P.W-3 was the brother of the deceased. P.W-4 was the Observation Mahazar witness. P.W-5 was the Doctor who had performed the autopsy on the body of the deceased. P.W-6 was the Sub-Inspector of Police, who had registered the FIR under Ex.P-5. P.W-7 was the mother of the deceased. P.W-8 was the resident of the area. He remained hostile. P.W-9 was also the resident of the area. P.W-10 was the Investigation Officer.

¶6The learned Counsel for the Appellant invited the attention of this Court to the cross examination of the witnesses P.W-1/father of the deceased, P.W3/brother of the deceased and P.W-7/mother of the deceased. Also he invited the attention of this Court to the statement given by the witnesses of the father, brother and mother of the deceased to the Investigation officer/P.W-10. He had clearly stated what had been narrated by the P.W-1, P.W-3 and P.W-7 before the Court, was not mentioned to him while conducting investigation.

¶7The learned Counsel for the Appellant also invited the attention of this Court to the cross examination of P.W-10/Investigation Officer who had clearly deposed that the witnesses had not stated those facts which incriminating the Accused at the earliest point of time. Further the learned Counsel for the Appellant invited the attention of this Court to the evidence before the learned Sessions Judge Mahila Court, Coimbatore, particularly in Para 31 and para 34 to 36 of the judgment.

¶8The learned Counsel for the Appellant submit that the Accused-1 himself was acquitted from the grave charge of Section 306 IPC. The learned Judge also convicted the Accused-1 only for the offence under Section 498(A) of IPC. As per the complaint under Ex.P-1, there was no incriminating material to attract Section 498(A) of IPC. The Sub-Inspector of Police who had recorded and registered the FIR, himself had deposed in his cross examination that there were no material incriminating to invoke Section 498(A) of IPC in FIR. While so, the learned Judge had lost sight of the same while discussing the evidence and convicted the Accused for offence under Section 498(A) of IPC.

¶9There were contradictions between the evidence of P.W-1, P.W-3 and P.W-7 and there were improvements in the their evidence. They had stated those facts which were not stated in the earlier point of time, when the Investigation officer proceeded with the investigation. While so, the learned Sessions Judge, Mahila Court, Coimbatore had recorded the conviction under Section 498(A) of IPC without any materials available before the trial Court. Therefore the judgment of conviction recorded by the learned Sessions Judge, Mahila Court, Coimbatore in S.C.No.115 of 2013 dated 09.03.2016 is perverse and is to be set aside.

¶10The learned Additional Public Prosecutor by way of reply vehemently objected to the same stating, there were sufficient materials available before the learned Sessions Judge Mahila Court, Coimbatore. Particularly, the learned Additional Public Prosecutor invited the attention of this Court to the evidence of examination in chief of P.W-1 who had deposed as follows: 09/03/2009k; njjp eilbgw;w rk;gtk; vdf;F neuoahf bjupahJ/ ehd; 9k; njjp ntiyf;F nghd gpwF ele;j rk;gtk; vdf;F brtptHp bra;jp jhd; MFk;/ jpUkzj;jpd; nghJ 10 gt[d; eif nfl;ljhft[k;. ehd; mjpy; 5 gt[d; nghl;nld; vd;W g[fhupYk; rup gpd;dpl;L nghyprhu; tprhupf;Fk; nghJk; brhy;ytpy;iy vd;why; rupay;y/ jw;nghJk; ehd; khzpf;fk;ghisaj;jpy; jhd; trpj;J tUfpnwd;/ vd; kidtp ,e;jpuhzp ntiyf;F brd;W bfhz;L jhd; ,Uf;fpwhu;/ rk;gtj;jd;Wk; vd; kidtpf;F ntiyf;F ngha; tpl;L rk;gtj;ij nfs;tpgl;Ljhd; te;jhu;/ M$u; 3k; vjpup vd; cld; gpwe;j rnfhjup MFk;/ M$u; 3k; vjpup rp';fhey;Yhupy; ,Uf;fpwhu;/ mjpf ehl;fs; rp';fhey;Yhupy; jhd; ,Ug;ghu;/ M$u; 2k; vjpupf;F nfhgpbrl;oghisaj;jpy; tpisepyk; cs;sjw;F m';F j';fp tptrhak; ghu;g;ghu; vd;W brhd;dhy; mof;fo xU jlit tUthu;/ ehd; bfhLj;j g[fhupYk; nghyprhu; tprhuizapYk; 1k; vjpupf;F ntW xU bgz;qld; bjhlu;g[ cz;L vd;W Twtpy;iy vd;why; rupay;y/ Twpa[s;nsd;/ 2008y; 3k; vjpup khkpahh; eif nfl;ljhf tprhuizapy; Twpa[s;nsd;/ tujl;riz nfl;ljhf Fwpg;gpl;L g[fhupy; Twtpy;iy/ vdJ kfSf;F FHe;ij ,y;iy vd;W brhy;yp mof;fo tUj;jg;gl;L ,Ue;jhu;/ 1k; vjpupa[k; vdJ kfSk; Crl.A.No.226oofo2016 ,ize;J FHe;ij bgWtjw;fhf gy kUj;Jtkid brd;W itj;jpak; bra;J te;jdu;/ Mdhy; vdJ kfs; fu;g;gk; bgww; gpwF fiyj;J tpl;ljhf rhl;rp Twfpwhu;/ bghJ ,lj;jpy; itj;J vdJ kfis vjpupfs; 4ngUk; nru;e;J moj;jjhf brhy;yg;gLk; ,lk; jz;zPu; gpof;Fk; igg; ,lk; MFk;/ ehd; v';fs; tPl;ow;F igg; nghl;L jz;zPu; gpoj;jJ Fwpj;J Cupy; gpur;rid ,Ue;jJ/ ehd; ghu;f;Fk; nghJ 1k; vjpup jhd; vd; kfis kUj;Jtkidf;F miHj;J ngha; bfhz;L ,Ue;jhu;/ vdJ kfis vdf;F Mjuthf ngRtjw;fhfj; jhd; bghJ igg;g[f;F brd;whu; vd;why; rupay;y/ 2 Kjy; 4 vjpupfs; rk;gt ,lkhd bghJ igg;g[ ,lj;jpw;F tunt ,y;iy vd;Wk; vdJ kfis gzk; eif nfl;L me;j ,lj;jpy; mof;ftpy;iy vd;why; rupay;y/ rk;gt rkaj;jpy; vdJ kfs; m';F ToapUe;j bghJ kf;fs; vdJ kfSf;F FHe;ij ,y;iy vd;W Rl;of;fhl;o ngrpajhft[k; mij nfl;l 1k; vjpup m';F epd;W ngr ntz;lhk; vd;W tPl;ow;F mjl;o ngrp tPl;ow;F mDg;gpdhu; vd;why; rupay;y. rk;gt jpdk; md;W Ke;jpd ,unt vdJ kfis moj;J vd; tPl;ow;F mDg;gpdhu;fs;. ve;j xU fhyfl;lj;jpYk; vdJ kfis tujl;rizf; nfl;L 4 vjpupfSk; moj;J Jd;g[Wj;jtpy;iy vd;why; rupay;y/ vdJ kfis moj;J Jd;g[Wj;jpajhy; mtu; vd;dplk; 3 khj';fs; vd; tPl;oy; jhd; ,Ue;jhu;/ vd; tPl;ow;F 1k; vjpup tPl;ow;F Rkhu; 300 mo Jhuk; jhd; ,Uf;Fk;. Mifahy; vd; kfis jpde;njhWk; ghu;g;ngd;/ 1k; vjpupia xU ehs; tpl;L xU ehs; ghu;g;ngd;/ ehd; brhd;d khjpup ve;j rkg; tKk; elf;ftpy;iy vd;Wk; vdJ kfs; ,we;Jtpl;l Jf;fj;jpy; vjpupfs; kPJ bgha; rhl;rp brhy;Yfpnwd; vd;why; rupay;y/ g[fhu; bfhLj;J 10 ehl;fs; fHpj;J vd;id tprhupj;jhu;fs;/

¶11Also the learned Additional Public Prosecutor invited the attention of this Court to the evidence of PW-2/Ward Counselor, where in she had stated that there had been quarrel between deceased and Accused-1, and she used to mediate between them. On the fateful day also she was present in the scene of occurrence. There was specific evidence that immediately after consuming poison, P.W-2 went to the room where the deceased consumed poison, knocked at the door and asked the deceased to come out. With the help of neighbours, they took her to hospital. There is specific evidence that Accused-1 remained as a mute spectator. Therefore there were sufficient materials available for the learned Sessions Judge Mahila Court, Coimbatore to record the conviction against the conduct of Accused-1 alone.

¶12The learned Additional Public Prosecutor also invited the attention of this Court to the evidence of P.W-3/brother of the deceased, P.W-7/mother of the deceased and P.W-5, the Doctor who conducted Post Mortem. The submission of the learned Additional Public Prosecutor to the judgment of the learned Sessions Judge Fast Track Court, Coimbatore in S.C.No.115 of 2013 dated 09.03.2016 is a well reasoned judgment it does not warrant any interference by this Court.

¶13By way of rejoinder, the learned Counsel for the Appellant invited the attention of this Court to the contents of Ex.P-1 and the Cross examination of P.W-6/Sub-Inspector who had recorded the complaint under Ex.P-1 and registered FIR under Ex.P-5 and the evidence in cross examination of P.W-10/Investigation Officer. Also the learned Counsel for the Appellant submitted that the P.W-1 had filed a separate Appeal seeking conviction against the Accused-1 for offence under 306 of IPC. Subsequently, he had withdrawn the case. The case was dismissed as withdrawn on 21.11.2023. Also the learned Counsel for the Appellant submitted that the Appellant was employed as Police Constable. Subsequently to his judgment, he was dismissed from the service. Therefore he seeks to set aside the same. Point for Consideration Whether the judgment of the learned Sessions Judge Mahila Court, Coimbatore in S.C.No.115 of 2013 dated

09.03.2016 is to be set aside as perverse.

¶14Heard the learned Counsel for the Appellant. Heard the Additional Public Prosecutor. Perused the evidence of witnesses P.W-1 to P.W-10 and Ex.P-1 to Ex.P-9 and the judgment of the learned Sessions Judge Mahila Court, Coimbatore in S.C.No115 of 2013 dated 09.03.2016.

¶15On assessment of evidence, the learned Sessions Judge Mahila Court, Coimbatore had convicted the Accused-1 only for offence under Section 498(A) of IPC and whereas on appreciation of evidence, acquitted all the Accused-1 to Accused-4 from the charges of Section 306 of IPC.

¶16As per the judgment of Hon'ble Supreme Court, when the relative of the Husband are convicted, the same yardstick applies to the Accused-1 also. In this case, the learned Sessions Judge had found that there was no incriminating materials to convict the Accused-1 for offence under Section 306 of IPC. Whereas convicted the Accused only for the offence under Section 498(A) of IPC. It is to be noted that in the Complaint itself in Ex.P-1, there was no incriminating materials to incriminating the Accused-1 for the offence under Section 498(A) of IPC and this fact was admitted by the Sub-Inspector of Police, who was examined before the trial Court as P.W-

6.

¶17Further on assessment of evidence, it was found that P.W-1/father of the deceased, P.W-3/Brother of the deceased and P.W-7/Mother of the deceased had in their depositions before the trial Court stated about the fact that there was no child for the Accused-1 and the deceased and the Accused-1 was claimed to have shown photograph of a girl to the deceased and stated that he would marry her, since the deceased was not able to beget a child. Therefore he forced her to go to her parent's house and wanted to get divorce and marry the girl whose photo he showed to the deceased. This fact was put to them in cross examination by the learned Counsel for the Accused who appeared before the trial Court. They had denied the suggestion that they had not spoken of the same fact when the Investigation Officer examined them in the course of the investigation, and before Court only they had made such statement. This fact was confronted to the Investigation officer/P.W-10. He had clearly admitted that this fact was not stated to him when he proceeded with the investigation when he recorded the statements of the witnesses. Under those circumstances, the conviction of the Accused-1 alone for the charge under Section 498(A) of IPC and acquitted Accused-2 to Accused-4 from charges under Section 498(A) of IPC is to be treated as perverse.

¶18In the decision of the Hon'ble Supreme Court in the case of Javed Shaukat Ali Qureshi -vs-State of Gujarat reported in (2023) 9 SCC 164, it is held that when there is similar or identical evidence of eyewitnesses against two Accused by ascribing them same or similar role, Court cannot convict one Accused and acquit other. Here in this case, the trial Judge found guilty under Section 498(A) I.P.C. as against the first Accused and not found guilty under Section 498(A) and 306 of I.P.C. against the Accused 2 to 4. Therefore, the above said decision applies to the Accused-1 also. Further, when there are no materials to incriminate the Accused-1, the learned Judge acquitting Accused-1 from the offence under Section 306 and convicting him for the offence under Section 498(A) of IPC is found to be perverse and unwarranted.

¶19In the light of the above discussion, the point for consideration is answered in favour of the Appellant and against the Prosecution. The judgment of the learned Sessions Judge, Mahila Court, Coimbatore in S.C.No.115 of 2013 dated 09.03.2016 is to be set aside. In the result, this Criminal Appeal is allowed. The conviction recorded by the learned Sessions Judge in S.C.No.115 of 2013 dated

09.03.2016 is set aside. The bail bond executed by first Accused shall be cancelled. The fine imposed on the Accused is to be refunded to first Accused.

18.12.2023 shl Index : Yes/No Speaking/Non-speaking order To

¶1The Sessions Judge, Mahila Court, Coimbatore

¶2The State Rep by Inspector of Police Annur Police Station Coimbatore

¶3The Public Prosecutor Madras High Court, Chennai – 600 104.

¶4The Section Officer (VR Records) Madras High Court, Chennai – 600 104. SATHI KUMAR SUKUMARA KURUP, J., shl

18.12.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.12.2023 CORAM: The Honourable MR.JUSTICE SATHI KUMAR SUKUMARA KURUP K.K.Senthil Kumar ...Appellant -Vs- State rep by Inspector of Police Annur Police Station Coimbatore Crime No.105 of 2010 ...Respondent Prayer:- Criminal Revision Case filed under Section 374(2) of the Criminal Procedure Code, 1973 to set aside the judgment made in S.C.No.115 of 2013 on the file of the Sessions Judge Magalir Neethimandram (Mahila Court) Coimbatore, dated 09.03.2016 For Petitioner : Mr.C.D.Sugumar For Respondent : Mrs.G.V.Kasthuri Additional Public Prosecutor