Madras High Court S. Abboy Naidu-vs-R. Sundararajan And Others on 13 November, 1992
Equivalent citations:1994 CriLJ 641
Bench: K Natarajan
1. This revision is directed by the complainant P.W. 1 against the order of acquittal passed by the 3rd Additional Assistant Sessions Judge, Coimbatore in a case instituted under sections 498A and 306, I.P.C. The brief facts which are necessary for the disposal of the Revision can be stated as follows :-
P.W. 1 and P.W. 2 are the parents of the deceased Saroja. The deceased Saroja was given in marriage to the accused on 2-6-1982 and after five months of their marriage when the accused and deceased Saroja came to the house of P.Ws. 1 and 2 in connection with Deepavali, P.Ws. 1 and 2 presented a dining table, worth about Rs. 950/-. It is stated that the accused told them that it would have been better if they had paid the value of the dinning table instead of purchasing a dining table, as he would have deposited the money in the bank. So saying, he quarrelled with P.Ws. 1 and 2 and returned to his house without taking the meals there. The parents of the accused also came and expressed the same view. The deceased Saroja and accused were living happily till 1983. In the latter part of 1983 there were quarrels between the deceased and accused. On account of the same, deceased Saroja came to her parents’ house. At her request, here father, P.W. 1, secured a job in a printing press. It is stated that the accused came there and insisted for the payment of deceased’s salary and also quarrelled on that account. Subsequently, the relations of the accused came to the house of the deceased’s parents and took the deceased to the accused’s house after mediation. Thereupon, the deceased was living with her husband, the accused, and she became pregnant and gave birth to a female child. It is stated that the accused insisted that the child should be presented with a jewel. Accordingly, P.W. 1 presented 2 bangles of one sovereign, worth about Rs. 2,500/-, to their grand child. About 10 months later, after the birth of the child, they also presented clothes and earrings to the child. In the year 1985, P.W. 2 sent her son Jaganathan to invite the accused and the deceased in connection with the Deepavali festival. When Jaganathan went there, the accused refused to come for Deepavali and sent him back. Thereupon in connection with the ‘Aravan’ festival, P.W. 1 sent his wife, P.W. 2, to invite the accused and the deceased. Accordingly, P.W. 2 went to Perianaickenpalayam to invite them. When she went there, the accused was not there. She waited till the arrival of the accused. Accused returned to the house by 06.00 p.m. and when P.W. 2 invited them the accused told her that if the deceased wants to go she could do so only after leaving the child and removing the Thali and giving it to the accused. The deceased expressed her inability to attend the festival. After that P.W. 2 left the accused’s house. On 12-11-1985, after P.W. 2 left the house, the deceased poured kerosene over her body and set fire. When she raised noise, her neighbour Mariappan along with the accused ran to her and found her laying with burn injuries in the bathroom. They put down the fire and took the deceased to the Government Hospital, Coimbatore and admitted her in the hospital. On coming to know about the incident, P.Ws. 1 and 2 came to the hospital and saw the deceased. When they questioned her, she told them that she could not live with her husband, the accused, and they can take back the child as well as the properties. P.W. 4, Medical Officer sent Ex. P-3 to Police. On receipt of the same, a Constable came from the outpost P.S. and recorded the accused’s statement under Ex. P-10 P.W. 7 is the Judicial Magistrate. On receipt of the intimation Ex. P-5, he came to the Government Hospital and recorded the deceased’s dying declaration under Ex. P-6. The deceased Saroja succumbed to the injuries on 30-11-1985. On receipt of the death intimation, Ex. P-9, P.W. 10, the Sub-Inspector, registered a case under section 174 of the Cr.P.C. and prepared First Information Report Ex. P-11 and sent the same to the Tahsildar, P.W. 11. On receipt of the same, P.W. 11 came to the Government Hospital and held inquest over the dead body between 10 a.m. and 01.00 p.m. During the inquest he examined the deceased’s parents. P.Ws. 1 and 2, and others. P.W. 11 sent his report, Ex. P-12 to police. Thereupon, the body was entrusted with P.W. 8 for the purpose of post-mortem, with a requisition to the Medical Officer. P.W. 9, Medical Officer, conducted autopsy and issued post-mortem certificate, Ex. P-8. P.Ws. 1 and 2 convened the panchayat immediately, even before the body was taken to the burial ground, and got back the jewels and other articles of the deceased from the accused, and also got the custody of the child. After post-mortem, the body was also entrusted to P.Ws. 1 and 2 for last rites, as per their desire. P.W. 12, the Inspector of Police, took up investigation of the case and inspected the scene place. He prepared rough sketch, Ex. P-13. He also seized the stove, oil tin, match box etc. in the presence of P.Ws. 6 and 12, under Ex. P-4. As the Tahsildar took up investigation of the case, P.W. 12, the Inspector of Police, did not proceed further. After receipt of the report Ex. P-12, from P.W. 11 he examined the witnesses from 30-11-85. Thereafter, no further action was taken. Only on 2-3-1986, P.W. 1, gave a complaint Ex. P-1. P.W. 12, registered a case in Crime No. 200 of 1985 under section 498(A) of I.P.C. after changing it from 174, I.P.C. Thereafter he prepared the First Information Report, sent the same to then Court and then he examined the witnesses. P.W. 13, the Deputy Superintendent of Police, took up further investigation and laid the charge sheet against the accused under sections 498(A) and 306 of I.P.C. When the accused was examined under section 313(1), Cr.P.C., he totally denied the prosecution version, and according to the accused, P.Ws. 1 and 2 are responsible for the death of deceased Saroja as they had given the belongings of the deceased’s elder sister to the deceased at the time of marriage and since the her elder sister demanded back the jewels, they wanted the deceased to return the jewels. On account of the same, quarrel arose between the deceased and P.Ws. 1 and 2 leading to her death.
2. On the side of the prosecution P.Ws. 1 to 13 were examined. Exs. P-1 to P-14 and M.Os. 1 to 3 were marked. On the side of the accused Exs. D-1 to D-3 were marked.
3. After considering the oral and documentary evidence, the learned Additional Assistant Sessions Judge came to the conclusion that the prosecution has not proved the guilt of the accused and acquitted him. The State, second respondent in this revision, has not preferred appeal. P.W. 1, father of the deceased, preferred this revision. The learned counsel appearing for the petitioner, vehemently argued that the reasonings of the Court below in acquitting the first respondent are not convincing and the Court below has not properly applied the provision of law under sections 498A and 306, I.P.C. to the facts of the present case. The Court below ought not to have given importance to the minor discrepancies and the Court below failed to see that evidence of P.Ws. 1 and 2, can be considered and accused though they are related the deceased. The Court below ought to have accepted the evidence of P.Ws. 3 and 5 who are the independent witnesses. The Court below failed to see that the accused did not make any attempt to prevent the fire on the deceased and when he went along with P.W. 3 on hearing her noise.
4. Per contra, the learned counsel for the respondent vehemently argued that there is absolutely no acceptable evidence on the side of the prosecution. There was no cruelty on the part of the accused and he was not responsible for the suicide committed by the deceased. Once cruelty is not established, no case can be made against the accused. He would further submit that even accepting the three instances referred to in the prosecution, they would not amount to the demand of dowry as per the definitions of the Dowry Act. He would submit that the deceased committed suicide only on account of the dispute between the deceased and her parents. P.Ws. 1 and 2. This fact is probabilised by their conduct in taking back the jewels and other articles belonging to the deceased and her child, even before the deceased’s body was taken for burial. Since the first respondent herein issued a notice to P.Ws. 1 and 2 for the return of his child, they have, after a long delay, instituted this case but before that, the authorities were satisfied that it was a case of suicide and the first respondent was not in any way responsible for the death of the deceased. In support of this contention, he draw my attention to the evidence adduced by P.Ws. 1 and 2 and their two associates and submitted that none of the ingredients has been established before the Court below. He submitted that the Court below correctly appreciated the evidence and came to the conclusion that none of the ingredients, required under Section 498A or 306, I.P.C., has been made out. There is nothing to show that the finding of the Court below is erroneous, perverse or illegal so as to warrant this Court to interfere. Hence, learned counsel for the respondent states that this petition has to be dismissed.
5. The point for consideration in this revision is whether the Order of acquittal is perverse, illegal or unreasonable so as to warrant this Court to interfere with the same. A careful consideration of the impugned order as well as the oral and documentary evidence and the rival submissions shows that the accused married the deceased on 2-6-1982, and were living happily after their marriage. According to the prosecution, after five months of the marriage, when the accused and deceased went to the latter’s house, P.Ws. 1 and 2 voluntarily presented them with a dining table worth about Rs. 950/-. It is stated that the accused expressed that it could have been better if they had paid him cash instead of presenting a dining table, so that he could deposit it in a bank. As rightly contended by the learned counsel for the respondent, this does not amount to the demand of dowry as per the definition of the Dowry Act. Further, the accused did not ill-treat the deceased on account of this. It is further stated that when the accused deserted his wife, the deceased, in the year 1984, she was employed in a printing press and the accused went there and insisted on the payment of her salary. It is to be noted that there is absolutely nothing to prove this aspect excepting the interested testimonies of P.Ws. 1 and 2 that the deceased was working in a press and was drawing salary. No other document or independent evidence has been produced to substantiate this. Further, even according to the case of the prosecution, P.W. 5 and others, who are related to the accused, mediated and took the deceased to the house of accused, thereafter, they were living happily and the deceased gave birth to a female child. Hence the same cannot be an incriminating circumstance, to hold that the accused ill-treated the deceased. Lastly, it was stated that the accused told P.Ws. 1 and 2 that they should present jewels to his daughter and they gave the jewels. There was no dispute on account of this. On the day of occurrence, one Jaganathan, son of P.Ws. 1 and 2, came and invited the accused and deceased for the Deepavali festival and the accused refused to accept the same. It is to be noted that Jaganathan was not examined. There was absolutely no reason given for the non-examination of this Jagannathan. In the absence of his evidence, there is absolutely nothing to show that Jagannathan came and invited the accused and the accused refused to come for the Deepavali. Further it is stated by the prosecution that in connection with the ‘aravan’ festival, at the instance of P.W. 1, P.W. 2 went to the accused and invited him for the festival. He refused to come and imposed a condition that the deceased could go only after leaving her child and removing the thali. Thereupon, the deceased expressed her inability to attend the festival and P.W. 2 returned back. On the side of the accused, it is stated that there was no such an incident. According to him, the quarrel arose between the deceased and P.W. 2, when P.W. 2 asked for the return of the jewels, belonging to the elder sister of the deceased, which were given to the deceased in connection with her marriage and only on account of the same, the deceased committed suicide. Excepting to the interested testimonies of P.Ws. 1 and 2, there is nothing to substantiate the version of the prosecution in this aspect. It is to be noted that the accused and his neighbour came to the rescue of the deceased when she poured kerosene on herself and set fire, and they took her to the hospital. The deceased did not make any statement against the accused and it is significant to note that she did not say anything against her husband, the accused, in her dying declaration Ex. P-6, recorded by the Magistrate, P.W. 7. Even when examined by the Tahsildar, P.Ws. 1 and 2 they did not make any statement against the accused nor did they speak about the ill-treatment meted out to the deceased by the accused.
6. Further, the version of the accused is probabilised by the fact that after the occurrence took place on 12-11-1985, P.Ws. 1 and 2 were examined by the authorities, and they did not find any material to proceed further and further action was deferred. Admittedly, the accused issued a notice calling upon P.Ws. 1 and 2 to return his child and on receipt the same, P.Ws. 1 and 2, filed a complaint against the accused under Ex. P-1, on 2-3-1986. The notice was issued on 8-2-1986, which was received by P.W. 1 on 10-2-1986. Thereafter P.W. 1 gave a report on 2-3-1986 and on the basis of that cases P.Ws. 1 and 2 were examined and a case has been initiated against the accused.
7. Admittedly, a case was filed before the Civil Court for the custody of the child and the accused won the case up to High Court. Even in respect of jewels, the lower Court directed that the properties, taken back by P.Ws. 1 and 2 from the deceased after her death, should be returned and the proceeds were directed to be deposited in the name of the child. The lower Court, after carefully considering the evidence on either side, came to the correct conclusion that even accepting the evidence of the prosecution, it cannot be said that the prosecution has made out a case that the accused ill-treated the deceased and on account of the cruelty the deceased committed suicide. Once the main ingredient is not established, as rightly contended by the learned counsel for the respondent, the question of proceeding against the accused under section 498A or 306 of I.P.C. does not arise. P.W. 3, is a witness only for the purpose of establishing that the deceased committed suicide by pouring kerosene over her and setting herself fire, and on hearing her noise, P.W. 3 along with the accused went and put down the fire. Beyond that his evidence is of no use. P.W. 5 is only a mediator and his evidence is not in any way incriminating. The Court below has given convincing reasonings for not accepting his evidence.
8. The fact that the deceased has committed suicide is not in dispute. But the question is whether there are any materials to hold that the accused was responsible for the same, by meeting out ill-treatment and cruelty to the deceased. The lower Court has clearly considered the said aspect and came to the conclusion that there is no acceptable evidence to establish the case under Sections 498A and 306, I.P.C. Thus, on a careful consideration of the entire materials, it is clear that the lower Court’s order is perfectly legal and correct and in any event, it cannot be said that the said order is manifestly illegal, unreasonable and perverse so as to warrant this Court to interfere. It is settled proposition of law that the revisional jurisdiction, when invoked on a private complaint against order of acquittal, can be exercised only in exceptional cases where there is manifest illegality or irregularity or gross of miscarriage of justice. The revisional jurisdiction cannot be invoked simply by because the lower Court has not appreciated the evidence. In the instant case, as we have discussed, the Court below has correctly appreciated the evidence and rendered a just finding. Hence this Court is of the view that no interference is called for with the order of acquittal passed by the lower Court.
9. In the result, this revision fails and shall stand dismissed. The order of acquittal, passed by the lower Court is confirmed.
10. Revision dismissed.