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Supreme Court of India


DATE OF JUDGMENT: 05/04/2000

BENCH:G.B.Pattanaik, S.V.Patil


      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.

See also  Factors to be considered by while framing of charge and discharge of accused

      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.

See also  What is duty of court if there is defective investigation?

      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.

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