Supreme Court of India
PETITIONER:ASOKAN Vs. RESPONDENT:STATE REP. BY PUBLIC PROSECUTOR, MADRAS.
DATE OF JUDGMENT: 05/04/2000
BENCH:G.B.Pattanaik, S.V.Patil
JUDGMENT:PATTANAIK,J.
These three appeals arise out of one Sessions Trial,
wherein the four accused persons viz. Rajammal Accused No.
1, Balasubramaniam Accused No. 2, Murugesan accused No. 3
and Asokan Accused No. 4 stood charged for different
offences. Accused Nos. 1 to 3, Rajammal, Balasubramaniam
and Murugesan were charged under Sections 302/34 IPC, 498A
IPC and 201 IPC. Accused Nos. 1 and 3 stood further
charged under Section 4 of the Dowry Prohibition Act and
Accused No. 4 was charged under Section 498A IPC alone.
Prosecution case in nutshell is that Accused No. 4 Asokan
is the husband of deceased Porkodi and they were married on
24th of March, 1985. A1 and A3 are the parents of Asokan
and A2 is his younger brother. It was alleged that on
18.6.1985 at 10 A.M. in furtherance of their common
intention, they committed murder of deceased Porkodi by
manual strangulation and the motive behind the strangulation
was that the demand of dowry was not satisfied by the
parents of the deceased. It was also alleged that the
deceased had been subjected to cruelty and harassment by
making unlawful demand and further after causing the murder
of the deceased Porkodi, the accused persons attempted to
cause disappearance of the evidence by setting up a case
that Porkodi had committed suicide. The defence is one of
denial. Prosecution examined several persons to establish
the charges against the accused persons. PWs 3 and 4 are
the two witnesses, who were residing upstairs of the house,
where the accused persons were residing and the incident
itself occurred. According to the evidence of PWs 3 and 4
at 10.30 A.M., on the date of occurrence the noise of
deceased Porkodi was heard and soon thereafter accused
Balasubramaniam (A2) came upstairs and wanted them to come
down since his mother wanted so. When they went downstairs,
they found accused Rajammal, Balasubramaniam and Murugesan
were in the room, next to the hall and Porkodi was lying on
the ground with the face upward and there were injuries on
her neck. While Rajammal, initially told that her
daughter-in-law had committed suicide by hanging but on
being further questioned, the accused persons told that they
had committed mistake unknowingly but if any people ask PWs
3 and 4, then they should tell that she has committed
suicide by hanging and they were pleading to save them.
Soon thereafter, PW4 left the house for office. PW14, who
is the neighbour, also heard the death news of Porkodi and
came out of his house, when Balasubramaniam conveyed him
that she died on account of heart attack. In the meanwhile,
PW11 had come to the house of the accused to meet Murugesan,
but he found the house to be locked from inside and when he
knocked the door, it is the Balasubramaniam, who opened it.
A1 Rajammal was also standing near him and Murugesan asked
PW11 to come after two or three days. Asokan was working in
Ashok Leyland Workshop and was not available in the house
and he was only informed by Murugesan about the death of
Porkodi. He, therefore, left the factory and came back to
his house. Balasubramaniam in the meanwhile came to the
house of PW7 and told him that Porkodi had a heart attack
and her condition was serious. On getting such information,
PWs 1, 2 and 7 left for the house of the deceased and found
Porkodi lying dead. They also found contusions on both
sides of her neck and when PW1 asked the accused persons as
to what had happened, the reply was that Porkodi had
committed suicide by hanging. PW1 however entertained some
doubt as to the cause of death and, therefore, went to
Tiruvottiyur Police Station along with PW2 and lodged a
report, which was recorded by the Sub Inspector PW22 and the
said Sub Inspector registered a case of suspicious death.
The Police Officer then sent information to the Tahsildar
and then left for the scene of occurrence and on reaching
the place of occurrence, prepared a sketch map and also made
some seizure. The Tahsildar PW21, arrived at the place of
occurrence at 4 p.m. and held inquest over the dead body
and made some inquiry. In course of such inquiry, he
examined PWs 2, 3 and 8 and then after making Inquest Report
as per Exh. P.16, he sent the dead body for post mortem
examination. PW22, thereafter made some seizure and then
PW23 the Inspector of Police arrived at the scene of
occurrence. He examined PWs 1 and 7, who were present. He
also made some seizure. PW4 who had left for his house,
soon after the occurrence, came back at 11.30 p.m. and the
accused 1, 2 and 3 informed PW4 that they have informed
Tahsildar about the fact that Porkodi has committed suicide
by hanging. Doctor PW5, who conducted the post mortem
examination, found two injuries and there was no evidence of
any ligature mark around the neck. He gave the opinion that
the deceased died of asphyxia due to manual strangulation
(throttling) and death must have been almost instantaneous.
After receipt of the post mortem report, Exh. P4 and on
completion of investigation, the Investigating Agency
altered the case to one under Section 498A and 302 IPC. The
materials during investigation having revealed that the
death has occurred on account of non-payment of dowry, the
District Registrar accorded sanction to prosecute the
accused persons under Section 4 of the Dowry Prohibition
Act, as per Exh. P.20. The Deputy Superintendent of
Police, realising the seriousness of the crime, took up the
investigation and re-examined many of the witnesses, already
examined and finally charge-sheet was filed under Sections
302/34, 201, 498A of the IPC and Sec. 4 of the Dowry
Prohibition Act.
The learned Sessions Judge, after a thorough scanning
of the entire evidence, came to hold that the prosecution
has been able to establish the charges for the offences
under Sections 302 read with 34 and 498A as well as Section
201 of the IPC and Section 4 of the Dowry Prohibition Act
against the accused No. 1 Rajammal and Accused No. 3
Murugesan and sentenced them to life imprisonment under
Section 302/34, R.I. for 6 months under Section 4 of the
Dowry Prohibition Act, R.I. for three years for the offence
under Section 498A and three years R.I. for the offence
under Section 201 IPC with the further direction that the
sentences would run con-currently. Accused No. 2
Balasubramaniam, however was given benefit of doubt and was
acquitted of all the charges. The only charge under Section
498A to A4 Asokan was held not to have been established and
A4 was also acquitted accordingly. While the two convicted
accused persons namely A1 and A3 preferred appeals,
assailing their conviction and sentence, the State also
preferred an appeal against the order of acquittal of A2 and
A4. The informant also had preferred a revision against the
order of acquittal, recorded by the Sessions Judge as
against A2 and A4 and all these appeals and the revision
were heard together and disposed of by a common Judgment of
the High Court. The conviction of accused Nos. 1 and 3 was
upheld and their appeal stood dismissed. The acquittal of
Balasubramaniam A2 was set aside so far as the charges under
Section 302/34 and 201 is concerned and he was sentenced to
imprisonment for life for the conviction under Section
302/34 and three years R.I. for the offence under Section
201 IPC. The order of acquittal under Section 498A however
was upheld, so far as accused A2 Balasubramaniam is
concerned. So far as Accused A4 is concerned, the High
Court set aside the order of acquittal and convicted him
under Section 498A IPC and sentenced him to R.I. for three
years and thus all the four accused persons are in this
Court in three different appeals.
Mr. Natarajan, the learned senior counsel, appearing
for the appellants contended that the High Court committed
serious error in interfering with the order of acquittal
recorded by the Sessions Judge, so far as Accused Nos. 2
and Accused No. 4 are concerned inasmuch as the sound and
convincing reasons given by the learned Sessions Judge in
acquitting them have not been adverted to and this has
vitiated the impugned order of conviction. According to Mr.
Natarajan, there is no evidence of cruelty and harassment,
so far as husband Asokan is concerned, and therefore, his
conviction is wholly unwarranted in law. The learned
counsel further contended so far as the conviction of A1 and
A3 are concerned, though the High Court affirmed the same,
yet in view of the earlier statement of the witnesses before
the Tahsildar, accused No. 3 undoubtedly, deserves separate
consideration and it must be held that the subsequent
version is an exaggerated version by roping in accused No.3
also, and consequently the conviction of accused No. 3 is
liable to be interfered with. The learned counsel also
further urged that the delayed examination of the witnesses
by the Police affect their substantive evidence in Court and
the entire case must be viewed with suspicion. The learned
counsel also contended that an undue interest has been shown
by CB.C.I.D. and it is only thereafter, witnesses have made
improvement in their version and prosecution case must fail
on that score.
The learned counsel appearing for the respondent, on
the other hand contended that the High Court in its
Appellate Jurisdiction, while dealing with an appeal at the
instance of the convicted accused persons as well as an
appeal at the instance of the Government against the order
of acquittal of two of the accused persons having
scrutinized and re-appreciated the entire evidence and
having recorded its conclusion that the accused persons are
guilty of different offences, there has been no error in the
matter of exercising jurisdiction nor has there been any
error in appreciation of the evidence and, therefore, the
impugned judgment remains un-assailable and cannot be
interfered with.
Since two of the accused persons were acquitted by the
Sessions Judge and their acquittal was set aside by the High
Court, we thought it appropriate to re- examine the evidence
on record to find out whether there has been any miscarriage
of justice by erroneous appreciation of evidence by the High
Court. In this context, it may be stated that in view of
the provisions contained in Section 176 of the Code of
Criminal Procedure and the Investigating Officer,
entertaining reasonable suspicion as to the cause of death
of deceased Porkodi, having intimated the Executive
Magistrate, as required under Section 174 of the Code of
Criminal Procedure, the Tahsildar who was duly empowered,
held an inquiry against the cause of death and while holding
such inquiry had also recorded the evidence of witnesses,
including PW3, which statement of PW3 has been exhibited as
Exh. D1. Coming to the question as to whether High Court
was justified in interfering with the order of acquittal of
accused No. 2, it may be noticed, the role ascribed by the
two star witnesses PWs 3 and 4 to the accused No. 2 is that
it is he, who went upstairs, called them downstairs and it
is he, who opened the door when PWs 3 and 4 knocked the
door. The learned Sessions Judge examined the evidence
pertaining to the demand of dowry and came to the conclusion
that there has not been an iota of evidence that A2 demanded
dowry at any time directly or indirectly nor is their any
evidence that he ill treated the deceased at any point of
time. The only evidence of ill treatment established by the
prosecution through the evidence of PW7 is that when
deceased had given coffee to Balasubramaniam once, he threw
it at her and such act would not amount to cruelty or
harassment. So far as charge under Section 302/34 is
concerned, the Sessions Judge found that evidence of PWs 3
and 4 is merely to the effect that they have seen accused
No. 2 along with his parents and according to the learned
Sessions Judge, that cannot be held to be establishing the
charge of murder so far as accused No. 2 is concerned. The
High Court however relying upon the evidence of PWs 3 and 4
came to the conclusion that since accused Nos. 1, 2 and 3
were present inside the house when the deceased was killed
and accused No. 2 is not coming forward with any
explanation as required under Section 106 of the Evidence
Act, it must be held that all three of them had caused the
murder of deceased Porkodi and, therefore all three of them
must be convicted under Section 302/34 IPC. According to
the High Court since Balasubramaniam accused No. 2 was
present, who went upstairs and called PWs 3 and 4 to come
down and it is he, who had given prevaricated version
regarding the death of Porkodi, he cannot be absolved of his
liability and there is no reason to hold that he did not
participate in the crime. That the deceased Porkodi died of
manual strangulation, is established through the evidence of
doctor who had conducted the post mortem examination and
that conclusion has not been assailed before us. Apart from
the fact that the prosecution evidence does not establish
anything further than the fact that the accused
Balasubramaniam went and called PWs 3 and 4 and when they
came down, they found that the deceased was lying dead, with
injuries on her neck. There is no prosecution evidence that
Balasubramaniam was present inside the house when the
deceased was strangulated nor the evidence of PWs 3 and 4 on
whose evidence the prosecution relies upon to establish the
charges of murder as against Balasumbramaniam, establishes
in any manner that Balasubramaniam participated in causing
the strangulation of the deceased. In this view of the
matter and having examined the reasons and grounds advanced
by the Sessions Judge in acquitting Balasubramaniam of the
charge under Section 302/34, we have no hesitation to come
to the conclusion that the High Court was in error in
interfering with the said order of acquittal. In our
opinion, the charge of murder as against A2 Balasubramaniam
cannot be said to have been established beyond reasonable
doubt and therefore, Sessions Judge had rightly given him
the benefit of doubt.
So far as the two other accused persons are concerned
viz. Accused Nos. 1 and 3, the learned Sessions Judge
convicted them of the said charges, essentially relying upon
the evidence of PWs 3 and 4 and the High Court has affirmed
the said conviction. But one important item of evidence
which has been lost sight of, is the statement of PW3 made
to the Tahsildar, while Tahsildar was holding an inquiry as
required under Section 176 of the Code of Criminal Procedure
and in the said statement the name of Accused No. 3 had not
been mentioned. At the outset, it must be stated that
Tahsildar in fact was required to hold the inquest, since
the investigation had entertained suspicion about the cause
of death of the deceased and in that connection, was holding
an inquiry. Non- mentioning of the name of Accused No. 3
by PW3, in our opinion, cannot be the sole basis for
discarding the evidence of PW3 in toto. That apart, PW4 has
fully established the prosecution case, so far as accused
Nos. 1 and 3 are concerned and we see no infirmity with the
impugned Judgment of the High Court, affirming the
conviction of accused Nos. 1 and 3 of the charge under
Section 302/34 IPC. So far as the charge under Section 201
is concerned, as regards Accused No. 2, we also entirely
agree with the submission made by Mr. Natarajan that the
order of acquittal recorded by the learned Sessions Judge
has been erroneously interfered with by the High Court
without proper discussion of evidence on record and without
discussions on the reasons advanced by the Sessions Judge in
giving benefit of doubt. In our view the acquittal of
accused No. 2 Balasubramaniam recorded by the Sessions
Judge on the evidence on record was fully justified and the
same could not have been interfered with by the High Court
and that also in a perfunctory manner in which the High
Court has re- appreciated the evidence. We accordingly set
aside the conviction of Accused No.2 Balasubramaniam of the
charge under Sections 302/34 and 201 IPC and acquit him of
all the charges. Needless to mention that order of
acquittal, so far as Sec. 498A is concerned, the same has
been upheld by the High Court in appeal.
So far as the order of acquittal of Asokan is
concerned, the learned Sessions Judge considered materials
against him in paragraph 13 of his Judgment and came to hold
that excepting the evidence of PW7 that Porkodi had told him
that Asokan had demanded a scooter, there is no other
evidence, establishing the demand of dowry by accused
Asokan. PWs 3 and 4 have not in any way implicated Asokan
with regard to demand of dowry and in the absence of any
such evidence, on the oral statement of PW7 that Porkodi had
told him about the so called demand of Asokan about the
scooter, the Sessions Judge has acquitted him of the charge
under Section 498A IPC, which was the only charge against
him. We have also examined the evidence of PWs 3, 4 and 7.
The High Court however interfered with the same on the
evidence of PWs 3 and 4 to the effect that it was a regular
feature of the house where in-laws would be finding fault
with the deceased for not bringing adequate dowry. Further,
the High Court has relied upon the evidence of PW2, who
categorically stated that Porkodi had told him that her
husband and mother-in-law are beating her for not getting a
scooter. The evidence of PW7 is also relied upon, who had
stated that Asokan has scolded his wife for not bringing a
cot as dowry. The evidence of PW7 is to the effect that
Porkodi had shown her the injuries and complained that
accused No. 4 had inflicted the injuries on the ground that
scooter had not been given to him as present. The learned
Sessions Judge had lost sight of the aforesaid material
evidence on record. In our view, therefore, the High Court
was fully justified in interfering with the order of
acquittal and convicting the accused Asokan under Section
498A IPC. So far as conviction under Section 498A of
Accused Nos. 1 and 3 are concerned, the evidence is rather
clinching and both the Sessions Judge as well as the High
Court have upheld the conviction and sentence and no
justified ground has been shown for our interference with
the same.
In the net result, therefore, the appeal of accused
No. 2 Balasubramaniam is allowed and he is acquitted of all
the charges and be set at liberty forthwith. The appeals of
other three accused persons against their conviction and
sentences respectively fail and are dismissed.