SEKAR REPORTER

Court News from Madras High Court

Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., to call for the records and set aside the conviction and sentence made in Crl.A.No.6 of 2011, dated 22.04.2014 on the file of the learned Sessions Judge, Mahila Fast Tract Court, Nagapattinam case full order of THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY Crl.R.C.No.719 of 2014  

by ·

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

Order Reserved on :  24.01.2022

 

Order Pronounced on : 08.02.2022

 

CORAM :

 

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

 

Crl.R.C.No.719 of 2014

 

1.Murugan

 

2.Achiammal                                                                        .. Petitioners

 

Versus

 

 

The Deputy Superintendent of Police,

Mayiladuthurai,

Sembanarkoil Police Limit,

Nagapattinam District.

(Cr.No.228 of 2008)                                                                    .. Respondent

 

Prayer :  Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., to call for the records and set aside the conviction and sentence made in Crl.A.No.6 of 2011, dated 22.04.2014 on the file of the learned Sessions Judge, Mahila Fast Tract Court, Nagapattinam, in confirming the judgment made in S.C.No.322 of 2008, dated 11.01.2011 on the file of the learned Principal Assistant Sessions Court, Mayiladuthurai and thus allow the Criminal Revision.

 

For Petitioners   : Mr.M.Maharaja

 

For Respondent  : Mr.L.Baskaran

Government Advocate

(Criminal Side)

 

 

ORDER

This Criminal Revision Case in Crl.R.C.No.719 of 2014 is filed by the petitioners/accused, aggrieved by the judgment of the learned Principal Assistant Sessions Judge, Mayiladuthurai, dated 11.01.2011 in S.C.No.322 of 2008, thereby, convicting petitioners for the offence under Section 498-A of Indian Penal Code and imposing a sentence of two years Rigorous Imprisonment and fine of Rs.2,000/- each and in default of payment of fine, to undergo six months Rigorous Imprisonment and the offence under Section 304-B of Indian Penal Code and imposing a sentence of seven years Rigorous Imprisonment and the judgment of the Mahila Fast Track Court, Nagapattinam, dated 22.04.2014 in Crl.A.No.6 of 2011, thereby, confirming the conviction and sentence imposed by the Trial Court.

 

  1. On 26.03.2008, P.W.1, Balu @ Balakrishnan went to Sembanarkoil Police Station, Nagapattinam District and lodged complaint to the effect that his daughter was married to the first petitioner/accused on 24.01.2007 and the second accused is her mother-in-law.  In connection with the marriage, it was agreed to give 12 sovereigns of gold and Rs.42,500/- as cash for the Motorcycle, even though 10 sovereigns and cash was given, 2 sovereigns of gold was promised to be given after the birth of the child.  From the beginning, his daughter was treated with cruelty by demanding 2 sovereigns of gold.  His daughter also gave birth to a male child on 24.02.2008 and thereafter, since he could not comply with the demand of Rs.25,000/- for purchase of Car, her daughter was tortured for not bringing the 2 sovereigns of gold and under these circumstances, on 24.03.2008, somebody, from the place of the accused, came to their house during night time and informed them that her daughter had died.  He went to the house of the accused next day morning along with his wife and relatives only to find his daughter dead and being laid on a table and the child, who was one month old, was near the water tank.  The accused and their relatives had since ran away from the house and therefore, he had gone to the Police Station along with his well-wishers and relatives and lodged a complaint.

 

  1. Upon such complaint, P.W.12, Sub-Inspector of Police registered a case in Cr.No.228 of 2008 initially under Section 174 Cr.P.C. Thereafter, P.W.14 took up the case for investigation, altered the section into Sections 498-A and 304-B of the Indian Penal Code, completed the investigation and laid a Final Report, proposing the accused as guilty of the charges.  The case was taken on file by the learned Judicial Magistrate No.II, Mayiladuthurai in P.R.C.No.38 of 2008 and after furnishing of copies as per Section 207 of Cr.P.C., and upon finding that the offence triable by Sessions Court, the case was committed as per Section 209(a) of Code of Criminal Procedure.  The case was taken on file by the learned Sessions Judge, Nagapattinam and thereafter, was made over to the learned Principal Assistant Sessions Judge, Mayiladuthurai and the case was taken on file as S.C.No.322 of 2008.

 

  1. Upon the appearance of the accused, charges were framed under Sections 498-A and 304-B of the Indian Penal Code and upon questioning, the accused denied the charges and stood trial. Thereafter, the prosecution examined the father of the deceased wife, namely Balu @ Balakrishnan as P.W.1 who spoke along the lines of his complaint; her mother Chandra as P.W.2 who corroborated the evidence of PW-1; one Srinivasan, neighbour of P.W.1 as P.W.3 who corroborated the evidence of PW1 &2; one Radhakrishnan, the mahazar witness as P.W.4, who turned hostile; one Rajendran, who was also a known person to P.W.1 and the deceased, as P.W.5; one Sangeetha, the younger sister of the deceased as P.W.6; one Ravi, witness to the observation mahazar, as P.W.7; one Rajendran, the forensic expert, who gave the viscera report – Ex.P-3, as P.W.8; one Dr.Veerapandiyan, who gave the first aid and attempted to treat the victim, as P.W.9; one Dr.B.Rajeswari, the Doctor, who performed the post-mortem as P.W.10; one Selvaraj, Head Constable, who handed over the body of the deceased to the relatives, as P.W.11; one Ayyasamy, the Sub-Inspector of Police, who registered F.I.R, as P.W.12; one Muhammad Uralifa, R.D.O, who conducted the enquiry, as P.W.13; one Ramakrishnan, the investigating officer, as P.W.14.

 

  1. On behalf of the prosecution, the complaint, given by P.W.1 on 26.03.2008, was marked as Ex.P-1; the signature of P.Ws.4 and 7 in observation mahazar as Ex.P-2; the viscera report issued by the forensic expert as Ex.P-3; the certificate issued by Dr.Veerapandiyan as Ex.P-4; the post-mortem report issued by P.W.10 as Ex.P-5; the First Information Report as Ex.P-6; the R.D.O report as Ex.P-7; the statements of the witnesses in the R.D.O enquiry as Ex.P-8 and the rough sketch as Ex.P-9. The dress worn by the deceased, namely her saree, jacket and petty coat were marked as M.Os-1 to 3.

 

  1. Upon being questioned about the adverse evidence and material circumstances on record, as per Section 313 of the Code of Criminal Procedure, the accused denied the same as false. Thereafter, no oral or documentary evidence was let in on behalf of the accused.  Therefore, the Trial Court proceeded to hear the learned Additional Public Prosecutor on behalf of the prosecution and the learned Counsel for the accused. By a judgment dated 11.01.2011, the Trial Court found, that P.Ws.1 and 2 have categorically spoken about the fact that the accused have been subjecting the deceased to cruelty by demanding 2 sovereign jewels; considering the evidence that two to three times the deceased was sent to her parents’ house, demanding jewels;  P.Ws.3 and 5 also corroborated this; and the factum of lodging of complaint and registering of a case having been proved by examining P.W.12, it was clear that the accused have physically tortured the deceased by demanding jewels after the marriage.

 

  1. The Trial Court further, by considering the evidence of the prosecution witnesses, rejected the defence of the accused that because it was the accused who had spent for the marriage, there was no chance for them to have demanded for dowry. The Trial Court, thereafter, considering the fact that the death of the victim happened within one year and three months of the marriage, proceeded to consider the report of the Revenue Divisional Officer and considering that except the accused persons, everybody else have spoken about the dowry demand in the R.D.O report itself and considering that even though there is no poisonous substance found in the forensic report, since the post-mortem Doctor, basing upon the version of the Doctor, who gave the first aid had opined that the death is due to poisoning held that victim committed suicide by consuming poison.

 

  1. The Trial Court further considered the evidence of P.W.14, the investigating officer and the manner in which the case was investigated and held that the prosecution has proved the offence under Section 498-A and 304-B beyond any doubt and sentenced the petitioners as aforesaid.

 

  1. Aggrieved by he same, the petitioners had filed Crl.A.No.6 of 2011 and the learned Sessions Judge, Mahila Fast Track Court, Nagapattinam, after independently appraising the evidence of P.Ws.1 to 7 and P.Ws.10, 13 and 14, came to the conclusion that the evidence of these witnesses would prove the charges leveled by the prosecution and confirmed the conviction and sentence imposed by the Trial Court. Aggrieved by the same, the present Revision Case is laid before this Court.

 

  1. Heard Mr.M.Maharaja, learned Counsel appearing on behalf of the petitioners and Mr.L.A.J.Selvam, learned Government Advocate (Criminal Side) on behalf of the prosecution.

 

  1. The learned Counsel appearing for the petitioners would submit that in this case, the prosecution has not proved the ingredients of Section 304-B of Indian Penal Code. He would submit that firstly, unnatural death of the victim is not at all proved by the prosecution as the report, Ex.P-3 clearly mentions that no poisonous substance was traced out in the internal organs of the deceased.  That being so, it is bounden duty of the prosecution to prove the manner of unnatural death of the victim and therefore, in the absence of the same, the first limb of Section 304-B of Indian Penal Code was not proved by the prosecution in this case.  He would further submit that in respect of the second ingredient also, except the statements of P.Ws.1, 2 and 6, there is no other independent evidence or reliable material for demand of dowry.  By cross-examining of P.Ws.1 and 2, the accused have discharged their burden of rebutting the presumption that the deceased did not die on account of their dowry demand.  Therefore, according to the learned Counsel, the offence under Section 304-B is not made out.

 

  1. Further, he would submit that in this case, it may be seen that even after the birth of the child, the deceased refused to go to her parents’ house and chose to be with the petitioners, namely the husband and mother-in-law and they were only taking care of her. That would disprove that the accused would have committed any cruelty of the deceased and therefore, the offence under Section 498-A of the Indian Penal Code is also not made out in this case.

 

  1. In support of his submission, the learned Counsel relied upon the judgment of this Court in Krishnan Vs. State rep. By the Assistant Commissioner of Police, Sembium Range, Chennai1, for the proposition that if there is a doubt as to the reason which led to the deceased to commit suicide, the offence under Section 304-B will not be made out.

 

  1. The learned Counsel further relied upon the judgment of this Court in Ponnar Vs. State represented by, the Deputy Superintendent of Police, Jeeyapuram Sub Division, Tiruchirappalli and Another2, for the proposition that so as to prove the offence under Section 304-B of Indian Penal Code, the prosecution has to prove two ingredients, namely the death was otherwise than under normal circumstance and that the woman would be subjected to cruelty or harassment by her husband or by any relative of her husband in connection with demand for dowry.

 

  1. The learned Counsel further relied upon the judgment of the Hon’ble Supreme Court of India in Chhotan Sao and Another Vs. State of Bihar3, whereby, the Hon’ble Supreme Court of India held that in the absence of material as to the unnatural death and when the prosecution did not produce any viscera report for the death due to poisoning, the Trial Court and the Appellate Court ought not to have concluded that the offence under Section 304-B of the Indian Penal Code was made out.

 

  1. Per contra, Mr.L.A.J.Selvam, learned Government Advocate (Criminal Side) appearing on behalf of the prosecution submitted that in this case the victim died within the period of seven years from the date of marriage and therefore, the R.D.O enquiry was conducted which confirmed the fact that it was a dowry death. Moreover, when there is a presumption against the accused as per Section 113-B of the Indian Evidence Act. In the R.D.O enquiry, both the accused gave a statement as if the deceased consumed poison enraged by the fact that her sister, P.W.6, Sangeetha was frequently speaking to the first accused over phone, while before the Court, their case, by cross-examining P.Ws.1, 2 etc., was that P.W.1, the father of the deceased had taken 2 sovereigns of jewel and had pledged the same and did not return the same to the deceased and on account of the same, she committed suicide.  Therefore, once it is accepted on behalf of the defence that the victim died on account of committing suicide, the unnatural death stood proved.

 

  1. Further, the evidence of P.Ws.1, 2, 5 and 6 clearly prove about the dowry demand and the same is also established in the R.D.O enquiry, which was conducted soon after the death of the victim and therefore, since the victim was subjected to cruelty on account of dowry, the demand is not before her death and the prosecution has proved its case even in the absence of viscera report showing the poisonous substance.

 

  1. Further, it is the contention of the learned Government Advocate (Criminal Side) that the post-mortem Doctor, namely P.W.10, has clearly deposed before the Court in all circumstances, the viscera report may not show the presence of poisonous substance as there is a chance of the victim vomiting the same and in this case, P.W.9, Dr.Veerapandian had also attempted to give a stomach wash before the death and therefore, considering the same, P.W.10, Doctor, had categorically opined that the death could have happened due to poison, even in the absence of traces of poison in the internal organs examined. No other expert evidence to the contra was let in on behalf of the accused nor they were successful in cross-examining P.W.10 and therefore, in this case, the prosecution has categorically proved the unnatural death of the victim and therefore, the ingredients of Section 304-B of Indian Penal Code as well as Section 498-A of Indian Penal Code were proved by the prosecution beyond any reasonable doubt and prayed that this Revision be dismissed as without any merits.

 

  1. I have considered the rival submissions made on behalf of the either side and I have gone through the material evidence on record. Upon hearing the contentions of both sides, the following questions arise to be answered by this Court:-

(i) Whether or not the absence of traces of poison in the viscera report by itself is fatal to the case of the prosecution?

 

(ii) Whether the prosecution has proved the unnatural death of the victim so as to convict the petitioner/accused for the offence under Section 304-B of the Indian Penal Code?

 

(iii) Whether the prosecution has proved the cruelty on the victim by the accused by demanding dowry?

 

Question No.1:

  1. In this case, the victim is said to have died by consuming pesticide, more specifically ‘Organophosphorus compound’. The  detailed explanation of about of Organophosphorus Poisoning in Modi’s Medical Jurisprudence and Toxicology4  is as follows:

“Organophosphorus Compounds and Allied Poisons. ___ organophosphorus (OP) compounds are extensively used as pesticides for soft-bodied insects in agriculture.  They have been imported in India since 1951, but very few knew the nature of these compounds as a virulent poison till the Kerala Food Poisoning Tragedy in 1958.  This tragedy, which took a toll of about a hundred odd lives, occurred due to the inadvertent stocking of food stuff (wheat, flour, and sugar) and folidol (parathion) packages in the same hold.  The folidol containers leaked and contaminated the gunny bags containing the food stuff.  Their easy availability and quick action are the reason for their popularity for suicidal and homicidal purposes.  The inappropriate use of toxic chemicals in developing countries leads to high rates of unintentional poisoning.  It is estimated that about 99 per cent of all deaths in developing countries occurred due to poisoning from pesticides.  OP insecticide self-poisoning is a major public health problem commonly in rural Asia and responsible for two-thirds of suicidal deaths, worldwide.  WHO has classified organophosphate compounds on the basis of their lethality into how toxicity, moderate and highly toxic compounds.”

 

  1. The test for identification of the organophosphorous pesticides which is commonly known as T.L.C test (Thin Layer Chromatography) is also explained in Modi’s Medical Jurisprudence and Toxicology (26th Edition), which is as follows:-

“Tests for Organophosphorus Pesticides ____ Direct extraction of organophosphorus pesticides : 50 g of viscera is macecrated into fine slurry with equal amount of anhydrous sodium sulphate.  The slury is transferred into a conical flask.  Add 50 mL n-hexane and reflux the contents for an hour on a water bath.  Separate hexane layer and transfer to a separating funnel.  This layer is shaken with 15, 10 and 10 mL of acetonitrile already saturated with hexane.  Combined acetonitrile layers are diluted to ten times with water and extracted thrice with 25 x 3 mL hexane in a separating funnel.  Hexane layers are mixed with anhydrous sodium sulphate, filtered and concentrated to about 0.5 mL volume for further analysis.

Thin layer chromatography:

Plate : Precoated silica gel G (thickness 0.2mm).

Solvent system : Hexane : Acetone, 9: 1.

Spray Reagent:

  • Palladium chloride
  • Mercurous nitrate : One gram of mercurous nitrate (A R Grade) is dissolved in 100 mL of water followed by addition of a few drops of concentrated nitric aid.

Color of Spots : Black.

Tentative identification of these compounds is carried out by comparing Rf values of the unknown pesticides with the values of known OP pesticides.”

 

  1. However, after the Polio drop case, New Delhi, it was found that T.L.C analysis was not yielding the correct result and is not a confirmatory test. Now the Cholinesterase test is also being adopted. That is to say that in case of insecticidal poisoning, when ingested or administered by parenteral routes they de-activate the acetyl cholinesterase enzymes and thereby there will be toxic effect of the organophosphorous compounds on various vital parts including the brain and lungs.   As a result of de-activation of the acetyl cholinesterase enzymes the cholinesterase activity of both the plasma and syrum gets decreased.  Therefore, organophosphorous poison is diagnosed by the pathological investigations from the levels of both the RBC and plasma cholinesterase test.

 

  1. In the book titled, “The essence of forensic medicine toxicology” by Narayana Reddy5, the following is mentioned about the diagnosis of the Organophosphorous poisoning by way of cholinesterase test :-

“…….The avergae normal values of cholinesterase are 77 to 142 in the red cell and 41 to 140 in the plasma. RBC cholinesterase levels of less than 50% of normal indicates poisoning. The plasma cholinesterase is more sensitive and will fall more rapidly and before that of red cells. Thus,if there is dissociation of the two, i.e.,if the plasma is down and red cells relatively little changed, the amount of exposure is less. The plasma value will approach normal in seven to ten days. In untreated cases, plasma cholinesterase levels may require 4 weeks to normalise. The cholinesterase at the motor end -plate can be demonstrated histochemically in muscles kept at room temperture for one to two days, and up to several months in the tissues stores at 4 to 6 degree Celsius. Fixation of tissue with phosphate bufferd formalin and cold acetone for 24 hours or the embalming of the body does not affect the cholinesterase activity at the myoneural junctions.”

 

  1. In a research article titled, “Negative viscera report and its medico-legal aspects4”, it has been mentioned that in many cases, the viscera report is negative on three major basis , namely it can be procedure based, sample based or lab based. The said research paper reveals that there are circumstances in which viscera test may not reveal the presence of compounds from the following circumstances:-
  2. Sample quantities received by FSL much less than those prescribed for optimal analysis;
  3. Required quantity and quality of preservative not used during sampling;
  4. Appropriate temperature, time and container not maintained for preservation of sample;
  5. Difficulty in detection of poison due to vomiting, purging or elimination from the system by the kidneys or due to prolonged stay in the hospital immediately prior to the death;
  6. Not sending stomach wash (gastric lavage) and vomit along with viscera for examination;
  7. Some organic poison decompose due to improper preservation or temperature control;
  8. Site of sample collection on the body also play an important role;
  9. In postmortem decomposition, many poisons present in the tissue undergo chemical changes which cannot be detected in routine toxicological analysis;

 

  1. Coming to the decided cases on the issue, the Hon’ble Supreme Court of India, reported in Mahabir Mandal Vs. State of Bihar5, by relying upon the observations found in the page 477 of the Modi’s Medical Jurisprudence and Toxicology in Seventeenth edition, held that under some circumstances, if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, conjugated and eliminated from the system by the kidneys and other channels, it is possible that there may not be traces of  poison.

 

  1. Similarly, the Division Bench of the Gujarat High Court in Patel Bharatbhai Parshottamdas Ramdas Vs. State of Gujarat6, has gone into detail on the law of toxicology and gone by relying upon the authorised medical test more specifically, some of the previous editions of Modi’s Medical Jurisprudence and toxicology, had ultimately held that there may be some circumstances in which the organophosphorus compounds will not be found in the examination of viscera and that it is possible for the prosecution to establish death by poisoning even by other evidence.

 

  1. The Division Bench of the Gujarat High Court framed the question in paragraph No.117 that “Whether the non-detection of poison in the sample of gastric lavage or viscera is a conclusive proof of the fact that the case is not one of poisoning?” and concluded on the basis of an extract from the 23rd edition of Modi’s Medical Jurisprudence and Toxicology and on account of various reasons given therein, there can be circumstances due to the absence of proper sample or negligence of the investigating officer or because of the lack of care by the medical officers who handled medico-legal cases and therefore, held that still the Court can reach a conclusion based on other evidence that the death is one of due to consumption of poison.  This apart, the Hon’ble Supreme Court had in Anant Chintaman Lagu Vs. State of Bombay7 held that even in the absence of deduction of poison, on the basis of circumstancial evidence, the Court can find that the poison must have been the cause of death.

 

  1. The Hon’ble Supreme Court of India in Chhotan Sao and Another Vs. State of Bihar8 has in paragraph Nos.14 and 15 held as follows:-

“14. No doubt the prosecution has adduced sufficient evidence to establish all other facts necessary to prove the offence under section 304-B IPC except the cause of death. As seen from the trial court judgment there are no injuries on the body of the deceased. Even according to the First Information Report the death was caused due to poisoning which the deceased was compelled to consume. In such circumstances, the non-examination of the doctor who conducted the post-mortem coupled with the failure to produce the Forensic Laboratory Report regarding the examination of viscera of the deceased leaves a gaping hole in the case of the prosecution regarding the nature of the death of Babita Devi. Learned counsel for the State placed reliance on the decision of this Court in Bhupendra v. State of Madhya Pradesh, 2013 (3) SCALE 552, to which one of us, Ranjana Prakash Desai, J., was a party. In the said case, no doubt this Court held that the production of chemical examination report is not mandatory. The Court held as follows:

“26. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B of the IPC or under Section 306 of the IPC takes place; in a case of an unnatural death inviting Section 304-B of the IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 of the IPC (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary.”

On the facts of that case, this Court reached to the conclusion that there was sufficient evidence on record to come to the conclusion that the death was due to poisoning.

15. Coming to the case on hand, the conclusion recorded by both the Courts below that Babita Devi died an unnatural death is not based on any legal material on record. None of the witnesses spoke to the factum of their witnessing Babita Devi consuming poison either under compulsion or otherwise. The statement in the FIR by PW8 is based on hearsay evidence. Yaddu Sah of Gopalpur, on whose information PW8 learnt about the death of Babita Devi, and who reported to the Police, is not examined at the trial.“

(emphasis supplied)

Therefore, the legal position as it obtains today seems to be that the absence of deduction of poison in the viscera report alone need not be treated as conclusive proof that the victim has not died of poison.

 

  1. But, however, one has to add a caveat that even the original passage which is extracted in Patel Bharatbhai Parshottamdas Ramdas9 case mentioned above from the Modi’s toxicology book has since been removed in the latest 26th edition. One can understand that in the present day context, in view of the scientific advancements, such as cholinesterase tests (whereby examination of brain is also advocated), are being available for all categories of poisons. By properly conducting the right type of test, it is possible in all cases to demonstrate scientifically that the death is caused due to poisoning.

 

Question No.2:

  1. As far as this case is concerned, even proceeding on the basis of the law stated above in the above judgment, the Court has to search for legal material on record to hold that the death of the victim is unnatural in this case. As far as the medical evidence is concerned, even though the forensic expert was examined as P.W.7, he has simply stated before the Court that he had examined Stomach, Intestine, Liver, Kidney and Preservatives and no poison was deducted in any of them and his report is marked as Ex.P-3.  Either in Ex.P-3 nor in his oral evidence anything is mentioned about the type of test performed or the scientific analysis undertaken.

 

  1. This apart, the evidence of the post-mortem Doctor, who is examined as P.W.10 in this case, states that if the victim had vomited or after the poison being removed from the body of the deceased, it is possible for the victim to die of poisoning even though the traces are not found in the viscera. Therefore, she states that she has given an opinion in Ex.P-5 that the deceased died of poison.  Firstly, this Court has carefully perused Ex.P-5.  It stops with the endorsement “ Reasons for death; awaiting viscera report” and there is no endorsement whatsoever of the final opinion.  The final opinion of the post-mortem Doctor is not at all available in the records.  In the cross-examination also, P.W.10 states that she was shown the medical certificate issued by P.W.9, Dr.Veerapandiyan, who treated the deceased.  She further states that Dr.Veerapandiyan had given a stomach wash.  Therefore, based on the medical certificate issued by Dr.Veerapandiyan and upon presumption, she has given her opinion that the traces of the poison would have left her system either by way of vomiting or by giving a stomach wash.  A perusal of the medical certificate Ex. P-4 given by P.W.9 merely states that when P.W.9 was giving first aid with Asperclim B Prism by stomach wash tube, she suffered convulsion and died.  In his testimony before the Court, P.W.9, Dr.Veerapandiyan had stated that he has treated the deceased only for a period of three to five minutes.  He has stated that he attempted to stop gasping by giving an injection.  Even when he was taking steps to give a stomach wash, she suffered convulsion and died and therefore, he in turn states that he got to know about the poison because the first accused, who came to his clinic with the deceased, told so.

 

  1. This being the medical evidence on record, the other evidence on record makes the prosecution case further shaky. Without any application of mind whatsoever and without any material whatsoever, P.W.13, R.D.O, in his report, Ex.P-7, which is as follows:-

“,t;tHf;fpy; tprhupf;fg;gl;l rhl;fspd; thf;FK:y’;fspy; nkw;go bgz; Jhf;Fkhl;o ,we;J nghdjw;F bgz;zpd; fztu; kw;Wk; mtuJ jhahu; ,Uthpd; tujl;riz bfhLik jhd; fhuzk; vd;W Twpa[s;sdu;/”

(empahsis supplied)

  1. Even during his report, most of the witnesses have stated that the deceased died by consuming poison. While so, it is an absolute careless statement made by P.W.13 as if the deceased died by hanging.  This apart, the earliest statement made by P.W.1 before the Police, after seeing her daughter lying on the table is that his daughter was killed by the accused by homicidal violence (“moj;J nghl;Ltpl;ldu;”).  Further, in this case, there is absolutely no evidence either by way of seizing any container of any poison or examining any witness as to how the insecticide found place in the house of the accused.  Neither any receipt for purchase whatsoever was also recovered.  Therefore, as laid down by the Hon’ble  Supreme Court of India in the judgment of Chhotan Sao mentioned above, unless there is legally acceptable material, to conclude about the manner of death, the offence under Section 304-B of Indian Penal Code will not be made out.

 

  1. The contention of the learned Government Advocate (Criminal Side) that there is a presumption that the death happened within one year four months, are unsustainable because the presumption under Sections 113-A and 113-B of Indian Evidence Act and the onus upon the accused would of come into play only if the prosecution first discharges its burden to prove both the ingredients under Section 304-B of Indian Penal Code as held by this Court in the judgment in Ponnar Vs. State represented by, the Deputy Superintendent of Police, Jeeyapuram Sub Division, Tiruchirappalli and Another10. Thus, sadly, the prosecution has not placed on record any legally acceptable material to discharge its initial burden about the unnatural death of the deceased and therefore, I have no other option than to interfere in the findings of the Trial Court as well as the lower Appellate Court about the guilt under Section 304-B of the Indian Penal Code as they are in direct contradiction with the dictum of the Hon’ble Supreme Court of India in Chhotan Sao.

 

Question No.3:

  1. Coming to the question No.3, the evidence of P.Ws.1, 2, 3 and 5 clearly and categorically establish that the deceased Vijayarani, was subjected to cruelty by demanding 2 sovereigns of the balance jewel. The case of the defence, by way of cross-examining all the above witnesses, that  only because P.W.1, father had taken back 2 sovereigns of jewel of the deceased and pledged the same and did not give back the same Vijayarani  committed suicide, is firstly, on the face of it, unbelievable and secondly, not substantiated by any further evidence.  On the contrary, during the course of the R.D.O enquiry, both the accused had given a statement as if the deceased was depressed and annoyed on account of her sister, namely P.W.6, frequently speaking with the first petitioner/accused on mobile phone. But when PW-6 was in the box, there was no suggestion that she used to speak to the first accused on the mobile phone frequently. Therefore, the material on record categorically and clinchingly prove that the petitioners, namely the first petitioner/husband and the second petitioner/mother-in-law have treated the deceased with physical and mental  cruelty by demanding the balance two sovereigns of jewels and therefore, the commission of the offence under Section 498-A of Indian Penal Code is categorically made out and no exception can be taken to the finding of the guilt under Section 498-A of the Indian Penal Code by the Trial Court as well as the lower Appellate Court.

 

  1. In the result, the judgment of the learned Principal Assistant Sessions Judge, Mayiladuthurai, dated 11.01.2011 in S.C.No.322 of 2008 and the judgment of Mahila Fast Track Court, Nagapattinam in Crl.A.No.6 of 2011, dated 22.04.2014 are partly set aside inasmuch as the conviction and sentence of the petitioners for the offence under Section 304-B of the Indian Penal Code and conviction and sentence imposed in respect of the offence under Section 498-A of the Indian Penal Code is confirmed.

 

  1. The Criminal Revision Case is partly allowed as above.

 

                                                       08.02.2022

Index : yes

Speaking order

grs

D.BHARATHA CHAKRAVARTHY, J.,

 

grs

 

 

 

To

 

1.The Sessions Judge, Mahila Fast Tract Court, Nagapattinam.

 

2.The Principal Assistant Sessions Court, Mayiladuthurai.

 

3.The Public Prosecutor,

High Court of Madras.

 

4.The Deputy Superintendent of Police,

Mayiladuthurai,

Sembanarkoil Police Limit,

Nagapattinam District.

 

Pre-Delivery order in

Crl.R.C.No.719 of 2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

08.02.2022

 

1    2019 (1) TLNJ 145 (Criminal)

2    2019 (2) TLNJ 280 (Criminal)

3    (2014) 4 SCC 54

4    Modi’s Medical Jurisprudence and Toxicology, 26th Edition, Edited by Justice K.Kannan, Former Judge, High Court of Madras & Punjab and Haryana, Chairman, Railway Claims Tribunal, Published by Lexis Nexis

5    Naryana Reddy, The essence of forensic medicine toxicology” – Thirty third edition – Page 522

4            Tyagi A, Chawla H, Negative viscera report and its medicolegal aspects. Int J Forensic Med Toxicol Sci 2019;4(1): 1-3

5    (1972) 1 SCC 748

6 MANU/GJ/3525/2019

7            (1960) 2 SCR 460

8            Refer footnote No.3

9    Refer footnote No.6

10          Refer footnote No.2

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