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Venkatesan-vs-The State By Inspector Of Police on 8 February, 2010

Madras High Court Venkatesan-vs-The State By Inspector Of Police on 8 February, 2010

DATED: 08.02.2010

CORAM:

THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

Crl.A.No.225/2003

Venkatesan Appellant

Vs

The State by Inspector of Police

Oomangalam Police Station

Cuddalore Respondent

Prayer:- This Criminal Appeal is filed against the judgement dated 21.1.2003 passed in SC.No.261/2001 by the learned Additional District Judge (FTC-III) Vridhachalam, convicting and sentencing the appellant/A1 for the offence under Section 304B of IPC to undergo 7 years Rigorous Imprisonment and for the offence under Section 498A of IPC to undergo three years Rigorous Imprisonment and to pay a fine of Rs.2000/-, in default to undergo three months Rigorous Imprisonment and for the offence under Section 3 and 4 of the Dowry Prohibition Act to undergo Rigorous Imprisonment for 6 months and to pay a fine of Rs.2000/-, in default to undergo three months Rigorous Imprisonment and ordering the sentences to run concurrently and acquitting A2 to A6. For Appellant : Mr.S.Saravanakumar

For Respondent : Mr.A.Senthil Murugan, GA

JUDGEMENT

This Criminal Appeal is filed against the judgement dated 21.1.2003 passed in SC.No.261/2001 by the learned Additional District Judge (FTC-III) Vridhachalam, convicting and sentencing the appellant/A1 for the offence under Section 304B of IPC to undergo 7 years Rigorous Imprisonment and for the offence under Section 498A of IPC to undergo three years Rigorous Imprisonment and to pay a fine of Rs.2000/-, in default to undergo three months Rigorous Imprisonment and for the offence under Section 3 and 4 of the Dowry Prohibition Act to undergo Rigorous Imprisonment for 6 months and to pay a fine of Rs.2000/-, in default to undergo three months Rigorous Imprisonment and ordering the sentences to run concurrently and acquitting A2 to A6.

2. The case of the Prosecution is as follows:-

a. The Appellant/A1 married the deceased Palaniammal in the year 1996 and they were residing at Narumanam Village along with the other accused persons/A2 to A6. At the time of the marriage, the parents of the deceased had given 15 sovereigns of jewels, a cash of Rs.50,000/- along with house hold articles. The Appellant demanded a Hero Honda Motor Cycle and the parents of the deceased assured to give the same after some time. One year after the marriage, the Appellant started to beat the deceased demanding the motor cycle. The other accused joined the Appellant and subjected the deceased to cruelty by demanding cash and jewels from her parents. All the accused have beaten the deceased on her hands, legs and thighs with stick. Subsequently, the deceased lodged a complaint against the accused on 27.4.1999 with the All Women Police Station, Chidambaram and the police compromised and the Appellant and the deceased agreed to live together on an assurance given by the Appellant to treat the deceased properly. Again the accused demanded motor cycle as dowry and assaulted her, when she was unable to meet the said demand. Not being able to tolerate the torture and harassment caused by the accused persons, on 10.5.2001 morning the deceased went to the cashewnut thope of one Vanathaiyan in Narumanam Village and committed suicide by hanging herself on a cashew tree. b. On 11.5.2001 one Ramarathinam PW.9 of Narumanam Village had come to the house of the complainant PW.1 the father of the deceased and informed that the deceased was dead. PW.2 is the mother, PW.3 the brother and PW.4 the sister of the deceased. PW.1, his wife PW.2 and his brother and son Pandian went to the said Village and saw Palaniammal in hanging posture on a cashew tree, which is just behind the house of the Appellant. The people living in and around had told the complainant that the deceased was found missing from 10.5.2001 onwards and the accused persons were searching for her. On suspicion over the death of the deceased, PW.1 gave the complaint Ex.P1 to the Oomangalam Police Station. c. PW.18 the Head Constable attached to the said Police Station on receipt of Ex.P1 registered a case in Cr.No.112/2001 under Section 124(3) of Cr.PC and prepared FIR Ex.P5 and sent express report to the concerned Revenue Divisional Officer and the Deputy Superintendent of Police. PW.19 the Revenue Divisional Officer on 11.5.2001 at about 11. a.m. went to the place of occurrence and saw the deceased in hanging posture in a cashew tree at Narumanam Village and examined the Panchayatars Dharmalingam, Anbu, Namasivayam, Varadharajan and Arulanandam and PW.1 and PW.2 and the 2nd accused and recorded their statements and conducted inquest and Ex.P8 is the inquest report. Ex.P6 and 7 are the statements of accused 2 and 3 and PW.19 opined that the death of the deceased appeared to be suspicious. d. PW.12 Dr.Thamizharasi conducted autopsy on the body of the deceased and opined in the postmortem certificate Ex.P4 that the deceased died due to asphyxiation by hanging 60-72 hours prior to the postmortem. PW.13 Dr.Sabanayagam also conducted postmortem on the body of the deceased along with PW.12 and opined that the deceased died due to asphyxiation.

e. PW.21 the Deputy Superintendent of Police took up the case for investigation and went to the place of occurrence and prepared observation mahazar and examined the accused persons and recorded their statements and altered the case into one under Section 304B of IPC and the altered FIR is Ex.P13 and arrested the accused persons Rajavel, Anjali, Ambukkarasi and Kalayarasi on 1.6.2001 and Venkatesan and Subramanian on 8.6.2001 and sent them for judicial custody and recorded the statement of the Doctors who conducted postmortem and on receipt of postmortem complete the enquiry, after completing investigation filed a final report against the accused under Sections 304B, 498A of IPC and Section 4 of Dowry Prohibition Act, 1961 read with 34 of IPC

3. The case was taken on file in SC.No.261/2001 by the learned Additional District Judge (FTC-III) Vridhachalam and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 21 witnesses (PW.1 to PW.21} and also relied on Exs.P1 to P14.

4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false.

5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the appellant/A1 guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.

6. This court heard the submissions of the learned counsel on either side and also perused the material records placed.

7. Mr.S.Saravanakumar, the learned counsel for the Appellant submitted that the Prosecution has failed to prove that the Appellant herein has made a demand of a motor cycle as dowry and the deceased was subjected to cruelty or harassment in connection with the said demand immediately before the death of the deceased Palaniammal and in the absence of any believable and reliable evidence led by the Prosecution, the conviction of A1, the husband of the deceased by the Trial Court is unjustified. He would submit that the Prosecution witnesses, more particularly the related witnesses have made substantial improvements and embellishments in their evidence and gone to the extent of projecting a false case of homicide against the Appellant. The learned counsel had taken this court through the entire material evidence placed on record and pin pointed to the material improvements made by these witnesses in their evidence rending their evidence unreliable.

8. On the other hand, Mr.A.Senthil Murugan, the learned counsel representing the Additional Public Prosecutor submitted that the Trial Court had presumed the death of the deceased to be dowry death and it was open to the court to presume that the Appellant being the husband of the deceased was responsible for the dowry death of the deceased on the evidence led by the Prosecution. He would submit that the evidence of the related witnesses cannot be discarded, merely because they are closely related to the deceased and it is quite natural that the deceased would disclose the ill-treatment to her parents and close relatives and their evidence cannot be disbelieved merely on the ground that they are interested witnesses.

9. According to the Prosecution, the deceased Palaniammal was married to the Appellant/A1 six years prior to her death and was given fifteen sovereigns of jewels and a cash of Rs.50,000/- as cash. There is no indication in the evidence led by the Prosecution that the same was given to the deceased on the demand made by the Appellant or his parents either before or at the time of the marriage. The evidence indicated that the deceased gave complaint on 27.4.1999 before the All Woman Police Station, Chidambaram and on the said complaint, the Appellant and the deceased were summoned and after holding a compromise, since it was alleged by the deceased that the Appellant subjected her to beatings, he was advised suitably and the spouses were sent home. Ex.P9 is the complaint given by the deceased. Ex.P10 and P11 are the statements given by the deceased and the Appellant to the All Woman Police Station to the said effect. PW.20 Shanthi, the then Inspector of Police had testified to the said facts.

10. PW.1 the father of the deceased has stated that after the said compromise, one month prior to her death, the deceased was driven to his house on the demand of motor cycle and she was sent back on being pacified. Again a few days thereafter the deceased accompanied by the Appellant had come to his house and demanded for a motor cycle and this time, the Appellant told them that his sister who was to be married soon has to be gifted with a motor cycle. He has further stated that the Appellant threatened him that if they fail to meet the said demand, they would be forced to see their daughter with ten persons. According to him, after this incident, he was informed by one Ramarathinam that her daughter was found hanging in the cashew nut thope which lies half a furlong from the house of the Appellant from his backyard.

11. The evidence of PW.2, the mother, PW.3 the brother, PW.4 sister are similar to the evidence of PW.1 They would categorically say that a motor cycle was demanded as dowry even from the inception of the marriage of the deceased and was renewed now and then and further the deceased was ill treated when the said demand was not fulfilled by the parents of the deceased. So the only allegation is the demand of motor cycle by the Appellant and the resultant is the ill treatment when the said demand was not met by the deceased.

12. Significantly, the said material allegation is not found in the complaint given by PW.1 even after a delay of nearly five hours after he came to know about the suicide committed by her daughter. The said allegation is not made even to the investigating officer at the time of investigation. PW.19, the Revenue Divisional Officer who conducted inquest and recorded the statement of the witnesses says that no such demand was spelt out by PW.1 and PW.2 the parents of the deceased. According to PW.19, the Revenue Divisional Officer he did not find any demand of dowry or ill-treatment on account of any dowry demand.

13. The statements, Ex.P6 and P7 alleged to have been given by the parents of A1 to PW.19 the Revenue Divisional Officer, who were arrayed as A2 and A3 and acquitted by the Trial Court, on whose evidence the Prosecution relied upon strongly, disclosed that there was only a quarrel between the Appellant and the deceased on the previous day and that the deceased was beaten by the Appellant. So it is evident that PW.1 to PW.4 have come forward with the allegation of ill-treatment on a demand of a motor cycle for the first time before the court and they have not stated either to the investigating officer or to the Revenue Divisional Officer during his enquiry. The allegation made in the complaint Ex.P1 assumes importance and the veracity of those witnesses have to be tested in the light of the allegations made by PW.1 in Ex.P1 complaint. PW.1 has made a general statement that the Appellant, his parents, sisters and sister’s husband have been ill-treating the deceased demanding a motor cycle, cash and jewels and a complaint was lodged by the deceased in the All Woman Police Station for dowry harassment and thereafter on 11.5.2001 at about 4.00 p.m. he heard that his daughter had committed suicide. The allegation that the deceased was driven to his house twice demanding a motor cycle and he was threatened by the Appellant that if he failed to meet the demand of motor cycle, then PW.1 and his family would be forced to see his daughter not in a normal circumstances has not been stated by him in the complaint. It is their categoric case that there was constant ill-treatment only for motor cycle as it was not fulfilled by PW.1, but those instances, referred to by PW.1 to PW.4 which according to them are the instances of cruel treatment meted out to the deceased, had not been averred in the complaint.

14. That apart, it was elicited in their cross examination that those allegations were not disclosed by them at the time of the investigation. Though PW.1 to PW.4 have either pleaded ignorance or denied the suggestion that they have not stated those material allegations at the time of the investigation, but PW.21 the investigating officer has admitted about such omission by the said witnesses in their statements made under Section 161 of Code of Criminal Procedure. It is pertinent to point at this juncture that those witnesses have been examined by the investigating officer after nearly 20 days after the occurrence. PW.2 has clearly stated that she was examined by the police on the 22nd day of the death of her daughter and PW.3 the brother of the deceased who seemed to be an literate witness has stated that he was examined after 10 or 20 days after the occurrence. He has further stated that PW.1, 2 and 4 were also examined only at that time. PW.4 also affirms it in her evidence.

15. On a careful scrutiny of the evidence of PWs.1 to 4, I am of the view that they are not speaking the truth and their evidence do not inspire confidence. There is evidence to show that the investigating officer was very much present at the time of enquiry made by PW.19 Revenue Divisional Officer and he was well aware of the statement made by PWs.1 and 2 that there was no dowry harassment as such. The records indicated that there was no injury on the body of the deceased, but however the investigating officer says that on the basis of PW.6’s statement, he filed the final report as though the deceased was beaten before the occurrence. But, PW.6 had turned hostile and the inquest report or the postmortem certificate does not show any such injury on the body of the deceased. It is thus clear that the investigating officer was not fair in the conduct of investigation.

16. The learned counsel for the Appellant vehemently contended pointing out to the partisan attitude of the investigating officer and the lapses committed by him that unjustified and unexplained long delay on the part of the investigating officer in recording the statements of the material witnesses render such evidence unreliable. He placed reliance on the decision of the Honourable Supreme Court rendered in the case of Balakrushna Swain Vs. The State of Orissa [AIR-1971-SC-804] in support of his contention. In this case, though the investigating officer’s evidence indicates that the statements of PW.1 to PW.4 were recorded earlier, but the evidence of PW.1 to 4 is otherwise. The fact of omission of material allegation in the statement made to the Revenue Divisional Officer by these witnesses would clearly demonstrate that those witnesses have been examined by the investigating officer after a long delay, thus giving room to concocted version. Hence, there is every force in the submission made by the learned counsel for the Appellant that their evidence is unreliable.

17. The Prosecution has examined PW.6 to PW.10 and all these witnesses are from the Village Narumanam, where the deceased lived with her husband. All those witnesses turned hostile and did not support the Prosecution.

18. PW.14, PW.15 and PW.16 have stated that the deceased was ill treated when motor cycle was not given by PW.1 which resulted in lodging of the complaint by the deceased in Chidambaram All Woman Police Station. PW.14 is closely related to PW.12. Their evidence indicated that they were not examined by the Police. That apart, as already discussed, the allegation of demand of a motor cycle is not found in Ex.P9 complaint given by the deceased. In Ex.P9, it is only alleged that the Appellant at the instigation of his parents was demanding dowry and harassing her. She has stated that she was driven from the matrimonial home in her advanced stage of pregnancy.

19. In Ex.P10 statement given during enquiry at the Police Station, she has expressed her willingness to go with her husband, as he had assured her not to beat her and would treat her properly. Likewise, the Appellant in Ex.P11 statement has given an assurance that he would treat her properly. Pw.20 had testified to the said facts. There is no accusation regarding the demand of motor cycle in the said proceedings and the testimony of PW.14, PW.15 and PW.16 that there was such demand cannot be believed. Their evidence stating those allegations only before the court cannot be safely relied upon.

20. The next part of evidence relied on by the Prosecution and the Trial Court also commented upon placing reliance on Ex.P6 and P7 are the statements allegedly made by A2, A3 to the Revenue Divisional Officer at the time of enquiry. It is alleged in the statements that there was a quarrel between the deceased and the Appellant and when A2 intervened, he was also beaten by the Appellant. A2 has stated that the deceased sustained injury on her head. This incident is alleged to have occurred on 9.5.2001 in the night. It is further alleged that after taking tea offered by A2, the deceased left the house at about 8.30 am and did not return home. It is further alleged that the conduct and behaviour of the Appellant is the cause for the suicide of the deceased.

21. It is seen from the evidence placed on record that the investigating officer was present during recording of statement by the Revenue Divisional Officer. The statement alleged to have been given by A2 and A3 which though exculpatory in nature, but implicates A1. In Ex.P6, there is an averment to the effect that there was harassment of the deceased for demand of a motor cycle, which resulted in lodging of the complaint by her in Chidambaram All Women Police Station. At the outset, no person will admit such an allegation, that too, who had been accused of causing the death of their daughter in law for demand of dowry. It is not known under what circumstances the said statement had come into existence. Whether those statements are voluntary is also not known. There is no indication that A2 and A3 have given those statements without any coercion or force.

22. These statements have been recorded at the time of inquest conducted by the Revenue Divisional Officer. The purpose of inquest report is to record apparent cause of death describing the injury as may be found on the body of the deceased. Moreover, an inquest report is not an substantive evidence. It follows that questions regarding the details, as to how the deceased was assaulted, or who assaulted or under what circumstances, the deceased was assaulted are beyond the scope of the report submitted under Section 174 of Code of Criminal Procedure. In the present case, the preliminary enquiry was conducted by the Revenue Divisional Officer to find out as to whether there is any dowry death and his report is that there was no dowry death. As those statements of the accused 2 and 3 recorded at the time of investigation the statement recorded cannot be taken as substantive evidence and they cannot be relied upon by the Prosecution to show that the deceased was beaten up by the Appellant.

23. The court below have placed reliance only on the testimony of interested witnesses and even if it is held that there was some demand, some time back i.e one year prior to the death, it cannot at all be termed that cruelty was meted out to the deceased soon before the occurrence.

24. The learned counsel for the Appellant placed reliance on the decisions of the Honourable Supreme Court rendered in the cases of Harjit Singh Vs. State of Punjab [AIR-2006-SC-680] and Narayanamoorthy Vs. State of Karnataka and another [2008-2-MLJ-Crl-969-SC] to substantiate his submission that when the Prosecution fails to prove by way of reliable evidence that soon before death the deceased was subjected to cruelty or harassment by her husband, or in connection with the demand of dowry, the provision of Section 304B of IPC and Section 113 of the Indian Evidence Act, 1872 cannot be attracted to hold that the husband is guilty of offence of dowry death in terms of Section 498A of IPC.

25. In the present case, there is no reliable and convincing evidence for the alleged cruelty or harassment caused by the Appellant for demand of dowry made by him soon before the death of the deceased. Therefore, I am of the considered opinion that the evidence brought on record is not sufficient to sustain the conviction recorded by the Trial Court and the same is liable to be set aside.

26. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the court below in SC.No.261/2001 are set aside and the Appellant is acquitted of the charges levelled against him. It is seen from the records that the Appellant had been enlarged on bail by this court. The bail bond if any executed by the appellant shall stand terminated and the fine amount if any paid is ordered to be refunded to him.

Srcm

To:

1.The Additional District Judge (FTC-III) Vridhachalam

2.The Public Prosecutor, High Court,

Madras

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