Money not in relation with marriage is not dowry

Madras High Court
N. Durai
vs
Ramamurthy, Nagu @ Nagammal And … on 18 November, 2004
Author: A Ramalingam
Bench: A Ramalingam

ORDER A.R. Ramalingam, J.

1. This revision has been filed by the aggrieved petitioner viz., PW1 in S.C. No. 31 of 2002 on the file of the Sessions Judge/Mahalir Needhimandram wherein the accused/respondents viz., Ramamurthy and his mother Nagu alias Nagammal charged under sections 498A, 302 IPC and section 4 of the Dowry Prohibition Act (against A1) and under sections 498A and 302 read with 109 IPC and section 4 of the Dowry Prohibition Act (against A2) have been acquitted.

2. The grounds alleged in support of the revision in substance are to the effect that Mahalir Neethimandram has not properly approached and appreciated the evidence available for the prosecution and the defence and that it has failed to take note of the fact that the deceased Valarmathi wife of the first accused died not due to fall and injury in the stomach and only due to ill treatment and fatal kick was given by the first accused upon the stomach of Valarmathi and it has failed to note the absence of positive opinion of the post mortem doctor to show as if the death was only natural and that it has failed to take note of the evidence of P.Ws.1 and 2 parents of the deceased Valarmathi attracting Dowry demand and consequent ill treatment resulting to death of the said Valarmathi and that the Mahalir Neethimandram has failed to frame charge under section 304B IPC and thereby in all, if the said court had properly approached and appreciated the available evidence, it should have convicted the accused of the offence of dowry harassment and murder.

3. The case of the prosecution in brief is to the effect that the first accused is the husband of the deceased Valarmathi and the second accused is the mother of the first accused and both the accused were torturing and ill treating the deceased Valarmathi through demand of dowry and 13 sovereigns of jewels were given at the time of marriage between the first accused and deceased Valarmathi by PW1 and the marriage took place on 16.2.1997 and the said Valarmathi was using to tell her parents viz., P.Ws.1 and 2 that she was being ill-treated by the accused on demand of dowry and the first accused demanded a sum of Rs. 10,000/= for construction of house and the said amount also was paid by PW1 and the said Valarmathi gave birth to a child on 3.3.2000 and on demand made by the second accused for five sovereigns of jewels were given to the child and consequently, on 22.4.2001, information was received by P.Ws.1 and 2 that Valarmathi had been admitted in the hospital and P.Ws.1 and 2 rushed to the hospital viz., Hema Clinic, Nungambakkam and they were able to find Valarmathi suffering from acute stomach pain and later on, Valarmathi was shifted to Villivakkam Hospital and then she was taken to Korattur where Dr. Senthilvelan declared that Valarmathi has died and following that PW1 gave complaint to the Korattur Police Station marked as Ex. P14 and a case was registered in Crime No. 247 of 2001 under section 174Cr.P.C and then it was altered into one of sections 498A and 304B IPC vide Ex. P9 and on the point of jurisdiction, FIR was transferred to Nungambakkam Police Station and on the basis of the transferred FIR, a case was registered by the Nungambakkam Police Station in Crime No. 447 of 2001 under sections 498A and 304B vide Ex. P10 and then the Assistant Commissioner of Police took up the investigation and the Revenue Divisional Officer, Ponneri conducted the inquiry and furnished his report vide Ex. P2 and lastly, after completion of the investigation, the Assistant Commissioner of Police filed charge sheet against the accused.

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4. On the side of prosecution, 13 witnesses have been examined besides 14 documents being marked as Exs. P1 to P14 and ten documents were marked on the side of the defence as Exs. D1 to D10.

5. The Mahalir Needhimandram, after having considered the evidence available for the prosecution as well as the defence, has come to the conclusion that the charges framed against the accused under sections 302, 498A IPC and section 4 of the Dowry Prohibition Act have not been proved and consequently, acquitted the accused. Aggrieved against such acquittal, PW1 the father of the deceased Valarmathi has filed this revision.

6. I have gone through the entire evidence available for the prosecution and the defence in detail in the light of the arguments of the counsels appearing for prosecution and the defence and the judgment of the Mahalir Needhimandram. On thorough search of the materials, for the question whether there is evidence for proving the offence under section 302 IPC against the accused, I am of the view that there is no material at all to show that both the accused committed murder of the said Valarmathi. There is also no direct evidence to show that the first accused or the second accused or both of them have caused any injury to the body of Valarmathi resulting in death. There is also no corroborating evidence like neighbours to show that Valarmathi was assaulted and in consequence of such assault, Valarmathi happened to die.

7. On the other hand, the prosecution witnesses viz., PW3 Amudha and PW4 Shanthi being neighbours, though treated as hostile, have gone to the extent of saying that the deceased Valarmathi herself has stated to them that she fell upon the staircase and sustained injury upon her stomach. Moreover, the first doctor viz., PW6 Mylvahanam has given evidence to the effect that when he enquired the said Valarmathi, she replied that she did not take food in the night and in the morning and she felt like vomiting and she did not say anything about any assault or attack like kicking, etc., by the accused and so, it is highly improbable to believe that the accused individually or jointly assaulted Valarmathi leading to renal injury that was later found out during the post mortem and in the same way, PW9 Dr. Mohan Reddy also appears to have given evidence that on 22.4.2001 at about 4.15 pm, when Valarmathi was brought to the hospital, the persons who accompanied Valarmathi told him that Valarmathi fell from the staircase and the treatment given to her in the other hospital was not satisfactory and when he examined Valarmathi, she was found dead. The details of the treatment given by the previous doctor viz., Dr. Mylvahanam have not been furnished by the prosecution to enable the court to assess the situation and background behind the injury.

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8. Further, the evidence of Dr. Mylvahanam reveals that Valarmathi was in a condition to speak while she was brought to him and she did not make any specific allegation that she was kicked or beaten by the accused and it is significant to note that no doctor and especially Dr. Mylvahanam has been treated as hostile. In such circumstances, it is highly unbelievable to say that Valarmathi happened to die only in consequence of the attack or assault made by the accused and particularly the first accused. It is more so when PW1 has admitted in his evidence that Valarmathi was brought to the house of the accused from the hospital of Mylvahanam, Valarmathi as well as the accused and P.Ws.1 and 2 were in the house of the accused for some time and at that time also it is not their case as if the said Valarmathi has stated to her parents viz., P.Ws.1 and 2 as if she was beaten by her husband A1 or her mother in law A2 that too when they were in the house of the accused from 1.30 to 3.00 on 22.4.2001 and PW1 himself had also lunch in the house of the accused.

9. Dr Manohar examined  asPW11, who conducted post-mortem upon the body of Valarmathi, has giv an n opinion that the said Valarmathi would have died due to renal injury and such death could not be a natural death. At the same time, he has stated that he is not in a position to explain as to how the injury to renal artery could have been caused and further he has gone to the extent of admitting that rupture of artery may be either due to disease or due to cist or ulcer. Therefore, the doctors’ evidence goes to indicate as if the injury could not be caused due to falling and rolling in the upstairs, but, at the same time, it does not go to indicate that such injury should have been caused only due to kick by somebody or due to some other kind of attack on the stomach. Consequently, it goes without saying that the post mortem doctor’s opinion is very uncertain regarding the cause of injury and consequent death. In this context, it is to be pointed out that the first doctor who attended Valarmathi viz., Mylvahanam was not informed by the deceased Valarmathi while in a speaking condition that she was attacked by the accused nor she rolled down upon the upstairs. In such circumstances, the benefit of doubt, in my view, has to be necessarily given in favour of the accused. Accordingly, the charge under section 302 IPC cannot be construed to have been proved by the prosecution beyond reasonable doubt. It is more so when P.Ws.3 and 4 also have given evidence that Valarmathi fell and rolled upon the staircase.

10. Coming to the next aspect of dowry demand and harassment, the material part of the evidence of PW1 is that Rs. 10,000/= was demanded for the purpose of construction of house by A1 and Rs. 10,000/= was given by PW1 to Valarmathi and that PW1 spent Rs. 5000/= in connection with ‘Seemantham’ function and that PW1 spent towards jewels given to the child. In the same way, according to PW2, three sovereigns of jewels were given for ‘Thalai Deepavali’ and five sovereigns of jewels were demanded and given for the child and at the time of marriage of the second daughter of P.Ws. 1 and 2, Rs. 10,000/= was demanded and it was assured to be paid in future. This kind of allegations as such cannot be construed as a dowry demand in the strict view and construction of the definition of dowry demand. The Mahalir Neethimandram also in this context elaborately discussed and appreciated that the payment as such was not in connection with the marriage between the first accused and the deceased Valarmathi nor demand was in pursuance of any implied agreement entered into at the time of agreement and that there are inconsistent and contradictory versions between the allegations made in Ex. P14 (complaint given by PW1) and Ex. P1(statement given before the Revenue Divisional Officer).

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11. Further, at one point of time, Ex. P14 itself has been disowned by PW1 and at a later point of time, he has admitted that it was given by him and thereby the genuineness of Ex. P14 complaint becomes default. Even under Ex. D1, a document written in connection with the return of the properties by the accused, there is a recital that Rs. 10,000/= being the borrowed amount for household expenses was returned and it is not mentioned as if it was borrowed for construction of house and that the voters list also marked for the defence goes to show that A1 and A2 being son and mother are having residence separately. Therefore, it is highly improbable to believe that there was demand of dowry or dowry harassment soon before the death of Valarmathi.

12. In all, if the cumulative effect of the above observed aspects is taken into consideration, in all reasonableness, in my view, a case has been filed against the accused with the ulterior motive and with belated complaint against them without acceptable and reliable materials to show that there was dowry demand and dowry harassment and consequent murder except the interested version of P.Ws.1 and 2 being parents of the deceased Valarmathi. Hence, it is a fit case where the benefit of doubt has to be given in favour of the accused in the absence of any convincing, acceptable and cogent evidence for the prosecution to establish the dowry demand and consequent harassment and assault upon Valarmathi by both the accused leading to her death. Accordingly, I do not find any acceptable and sustainable grounds in support of this revision for this court to interfere with the judgment of the Mahalir Neethimandram by exercising its revisional jurisdiction and consequently, the revision deserves to be dismissed.

13. In the result, this revision is dismissed.

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