Madras High Court
Pandiarajan vs State Rep. By on 2 March, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/03/2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.619 of 2003 1.Pandiarajan 2.Karuppaiah 3.Arumugathammal ... Appellants/A1 to 3 vs State rep. by Assistant Commissioner of Police, Thilagar Thidal, D-9, S S Colony Police Station, Madurai. ... Respondent/Complainant Criminal Appeal is filed under Section 374 Cr.P.C praying to set aside the judgment and conviction in S.C.No.124 of 2002, dated 18.12.2002 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Madurai. !For Appellants ... Mr.N.Sathiyendran for Mr.S.Muthuvenkatesan ^For Respondent ... Mr.T.Mohan Addl. Public Prosecutor :JUDGMENT
The persons, who were prosecuted before the trial court, namely the court of the Additional District and Sessions Judge (Fast Track Court No.I), Madurai in S.C.No.124/2002 for an alleged offence punishable under section 304-B IPC, convicted as per the charge and sentenced to undergo seven years rigorous imprisonment, have come forward with the present appeal challenging the judgment of the trial court dated 18.12.2002, both in respect of conviction and sentence.
2.The prosecution case proceeds as follows:
i)The marriage of deceased Menaka with the first appellant/first accused took place on 03.06.2001. After the marriage, both the first appellant and his wife Menaka were living along with the appellants 2 and 3, who are none other than the parents of the first appellant/first accused, as a joint family. Twenty days after the marriage, the said Menaka went to her parental home and asked PW.1-Thangaraj, her father to give her a sum of Rs.20,000/- stating that the appellants had incurred a debt of Rs.20,000/- for their marriage. PW.1 informed her that he was not having the money readily with him and promised her to arrange for the fund by borrowing from others. After a lapse of a week thereafter, the appellants 2 and 3 met PW.1 and wanted him to arrange for funds at least by pledging the jewels of Menaka, which PW.1 had given her at the time of marriage. As per the request made by the appellants 2 and 3, PW.1 pledged the jewels of Menaka and paid a sum of Rs.15,000/-. Five days thereafter, Menaka again went to the house of her father, namely PW.1 and wanted him to give her another sum of Rs.5,000/-. As PW.1 could not arrange the money demanded by Menaka, she did not return to her matrimonial home and she was with her parents.
After a lapse of one week thereafter, the first appellant, namely the husband of Menaka came to the house of PW.1 and took Menaka with him with the permission of PW.1 stating that the first appellant himself had arranged the balance amount of Rs.5,000/-.
ii)Thereafter, on the third day after Menaka was thus taken by the first appellant, PW.1 was informed about the death of Menaka. When PW.1 and his relatives went to the house of the appellants they saw the dead body of Menaka and they were informed that she committed suicide by hanging. As th appellants had promised the parents of Menaka that they would set up separate residence for the first appellant and his wife Menaka after they could clear the debts, but failure to do so. PW1 sensed foul play leading to the death of Menaka and lodged a complaint under Ex.P1 with the police. Based on the complaint a case was registered on the file of B.9 S.S. Colony Police Station as Crime No.1100/2001.
iii)Since the death had occurred within seven years from the date of marriage, PW.8-Thiru.Ananthasayanam, Revenue Divisional Officer conducted inquest on the dead body of the deceased Menaka at the Government Hospital in the presence of panchayatdars and the parents of the deceased at 8.30 a.m on 28.09.2001. During inquest, he prepared Ex.P6-inquest report and thereafter submitted a preliminary report and final report under Exs.P7 and P8. As per the request made by the Revenue Divisional Officer autopsy was conducted by PW.5- Dr.Raghava Ganesan and Ex.P2-postmortem examination report was obtained. During the course of investigation PW.9-Assistant Commissioner of Police, Thilagar Thidal visited the place of occurrence and prepared Ex.P9-rough sketch and Ex.P3-observation mahazar in the presence of P.W.6-Thiru.Sikkanther and one Saravanan. He also recovered M.O.1-Saree under Ex.P4-Seizure mahazar in the presence of the above said witnesses. The appellants/accused were also arrested and remanded to judicial custody and on completion of investigation, PW9 submitted a final report alleging commission of an offence punishable under Section 304-B IPC by the appellants herein/accused.
3.In order to prove the prosecution case, 9 witnesses were examined as P.Ws.1 to 9 and 9 documents were marked as Exs.P1 to P9 on the side of the prosecution. The saree of the deceased was produced as M.O.1. After recording of evidence on the side of the prosecution was over, the attention of the appellants/accused was drawn to the incriminating materials found in the evidence adduced on the side of the prosecution and they were questioned regarding such incriminating materials under Section 313(1)(b) Cr.P.C. The appellants/accused denied such evidence claiming them to be false and reiterated their stand that they were not guilty. No defence witness was examined and no defence document was produced.
4.The learned Additional District and Sessions Judge (FTC No.1), Madurai, after hearing arguments advanced on both sides, considered the evidence and upon such consideration, came to the conclusion that the charge against the appellants/accused was proved, convicted them for the offence under Section 304- B IPC and sentenced them to undergo seven years rigorous imprisonment. The correctness of the conviction and the sentence is challenged in this appeal.
5.The point that arises for consideration is:-
"Whether the conviction recorded by the trial court warrants interference in exercise of the appellate powers of this court and if not, whether any interference is needed in respect of sentence?"
6.Learned counsel for the appellants has submitted that despite the fact that the prosecution evidence is found with full of inconsistencies, contradictions and improbabilities, the court below has chosen to record a finding that the charge under section 304-B IPC [dowry death] was proved by the prosecution beyond reasonable doubt and based on such finding, convicted the appellants/accused for the said offence and imposed punishment as indicated supra. Learned counsel for the appellants has also pointed out the fact that there was a delay in the first information report reaching the court and a lot of improvement was gradually made at several stages of investigation and trial.
7.Learned counsel for the appellants also contends that the interested testimonies of PW1 to PW4, who are closely related to each other and also to the deceased, were blindly believed by the trial court, without considering the effect of inconsistencies and contradictions found in their evidence. It is also the contention of the learned counsel for the appellants that though there are some kind of evidence to the effect that the deceased wanted her parents, namely PW1 and PW2, to arrange funds by pledging her jewels to the extent of Rs.20,000/- for clearing the debt incurred by the appellants for her marriage with the first appellant, there is no evidence and more-over no sufficient evidence to prove that the deceased was subjected to harassment or cruelty demanding dowry soon prior to death or at any time prior to death and that therefore, the judgment of conviction pronounced by the trial court should be held defective and infirm and the same has to be corrected by this court in this appeal.
8.Per contra, learned Additional Public Prosecutor would contend that since the death occurred within three months from the date of marriage and the death has also been proved to be an unnatural death, it would attract the presumptions under section 113-A and even 113-B of the Indian Evidence Act 1872. It is the further submission of the learned Additional Public Prosecutor that though there are certain variations in the evidence of the prosecution witnesses, they are in-significant and they will not in any way affect their credibility. The further contention of the learned Additional Public Prosecutor is that there is evidence to the effect that there was demand for payment of a sum of Rs.20,000/-, out of which, Rs.15,000/- was paid at the first instance and the balance Rs.5,000/- was agreed to be paid after a lapse of a few days and that the witnesses examined on the side of the prosecution have also spoken about the accused persons approaching PW1 and PW2 to ask them to pledge the jewels of the deceased and arrange for the money, besides sending the deceased to her parents place to make such a request. According to the contention of the learned Additional Public Prosecutor, the said evidence itself will be sufficient to show that there was demand of dowry and the same led to the ultimate, unfortunate and tragic death of the deceased in her prime youth, who had entered the marital life just less than three months prior to the date of occurrence. With the above said contention, the learned Additional Public Prosecutor would plead that no case for interference with the judgment of the trial court has been made out by the appellants and the judgment of the trial court regarding conviction as well as sentence is bound to be confirmed.
9.This court pays its anxious consideration to the above said submissions made on both sides. The materials available on record are also taken into consideration.
10.The admitted facts are as follows:- The first appellant (A-1) is the husband of deceased Menaka and their marriage took place on 3.6.2001. The 2nd and 3rd appellants/A2 and A3 are the parents of the 1st appellant Pandiarajan (A-1). The deceased Menaka died on 27.09.2001 at 3.00 p.m. at her matrimonial home, namely the residence of the appellants/accused.
11.The death, according to the prosecution case occurred due to asphyxia caused by hanging. The prosecution case itself is that the deceased committed suicide by hanging. But the prosecution case proceeds on the basis that she was driven to commit suicide because of the harassment caused by the appellants demanding dowry. PW5 Dr.Ragavaganeshan, the Medical Officer who conducted autopsy has deposed in clear terms that the deceased was found to be pregnant and the uterus contained a fetus of 4 cm length and the death of the deceased was due to asphyxia caused by hanging. The postmortem examination report issued by PW5 and another Medical Officer, who jointly conducted the autopsy, has been produced and marked as Ex.P2. It is unnecessary to refer to the various particulars found in the said document. Suffice to state that the finding of the Medical Officer, who conducted autopsy is that the death of the deceased Menaka was caused due to asphyxia caused by hanging. It is also not the case of the prosecution that the case is one of homicide and the death was caused by some one else by hanging or by strangulation using any material like rope or Saree. On the other hand, even as per the admitted case of the prosecution, the deceased committed suicide by hanging using a Saree, which has been produced as MO.1.
12.In Ex.P1 complaint itself, which is said to have been given by PW1, it has been stated that the deceased appeared to have committed suicide unable to bear the harassment caused by her husband, father-in-law and mother-in-law. No- where during the investigation, PW2 to PW4 have stated that they suspected the death of the deceased Menaka to be homicidal. However, during the course of trial, PW2 to PW4 made an attempt to show that the death of Menaka was a homicidal death caused by the appellants/accused. PW2, the mother of the deceased, in her evidence in chief examination has stated that her daughter did not commit suicide and on the other hand, the appellants/accused had caused her death by beating. This is quite contrary to the case of the prosecution and also the contents of Ex.P1 complaint. The same is also proved to be in contradiction with the statement given by her to the Investigating Officer during investigation.
13.Similar is the evidence of PW3-Sankar, who is the younger brother of PW1. During cross examination, he also stated that it was not correct to state that Menaka committed suicide. The last sentence of his testimony in cross examination is capable of even demolishing the case of the prosecution. The said part is extracted in the vernacular for better appreciation:-
"gzk; Bfl;L vjphpfs; bjhe;juthy; jhkhfBt Bkdfh jw;bfhiy bra;J bfhz;lJ vd;why; rhpay;y."
The said sentence is found with ambiguity capable of giving two different meanings. The first one is that Menaka did not commit suicide and it is incorrect to state that Menaka commit suicide. The second one is that Menaka committed suicide, but it is not due to the harassment caused by the accused demanding money. When such is the tenor of evidence of PW3, much importance cannot be attached to it.
14.PW4-Nagasubramani is none other than the brother of PW2 and brother-in- law of PW1. PW1 to PW4 are the witnesses, who spoke about the alleged demand of money made by the appellants/accused. As rightly pointed by the learned counsel for the appellants, there are a number of inconsistencies and contradictions. First of all, though they have spoken in one voice that the appellants/accused wanted the parents of the deceased to arrange for a sum of Rs.20,000/- to discharge the debt incurred by them for the marriage of the first appellant, there is a vital discrepancy regarding the amount paid by PW1 by pledging the jewels of the deceased. Not only, such a contradiction is found between the testimonies of PW1 to PW4, but also such contradictions are found between the particulars found in Exs.P1, but also between their parole evidence their statement recorded under section 161(3) Cr.P.C. In Ex.P1, PW1 complainant seems to have stated that he pledged the jewels of Menaka and paid a sum of Rs.17000/- to the appellants/accused. Per contra, while deposing as PW1 before the court, he has stated that only a sum of Rs.15,000/- was paid by him after raising the said amount by pledging the jewels of the deceased Menaka. On the other hand, PW2-Muthulakshmi, in her evidence, would state that a sum of Rs.17,000/- was paid by pledging the jewels of deceased Menaka. PW3 and PW4 have also corroborated the testimony of PW2 regarding the amount paid to the accused, after pledging the jewels of Menaka. All of them have stated that it was Rs.17,000/-.
15.It is pertinent to note that PW3 Sankar's evidence gives altogether a different version as to the total amount demanded by the appellants/accused. According to the testimonies of PW1 and PW2, the amount demanded by the appellants/accused was Rs.20,000/-. PW2 does not say that the appellants/accused demanded payment of further amount after the payment of the first installment, namely Rs.17,000/-, whereas PW3 would say that even after the payment of Rs.17,000/-, the appellants/accused demanded a sum of Rs.5,000/-. By such evidence PW3 means that the total demand made by the appellants/accused was Rs.22,000/-, which is quite contrary to the prosecution case and also the evidence of PW1 and PW2. The same is the tenor of PW4. His evidence is identical with that of PW3 in this regard.
16.A comparative consideration of the evidence of PW1 to PW4 in this regard, will show that after the examination of PW1, an improvement was made on the basis of the averment found in the first information report that a sum of Rs.17,000/- was paid out of the funds raised by PW1 by pledging the jewels of the deceased Menaka. Only in such an attempt, unknowingly they allowed a discrepancy to creep in their evidence. In Ex.P1 complaint, there is no averment that after the payment of Rs.17,000/- further payment was demanded, either by the appellants/accused or by the deceased. Since PW1 has chosen to make an improvement by stating that an additional sum of Rs.5,000/- was demanded, PW3 and PW4 have made an attempt to show that an additional amount of Rs.5,000/- was also demanded over and above a sum of Rs.17,000/- paid as per their testimonies, which takes us to the figure of Rs.22,000/- causing inconsistency in the version of the prosecution witnesses. Apart from the said inconsistencies and contradictions, there is yet another lacuna in the prosecution case. It is the case of the prosecution that the jewels of the deceased Menaka were pledged by PW1 and a sum of Rs.15,000/- or Rs.17,000/- was paid to the appellants/accused, just a few days prior to the date of occurrence. Absolutely there is no evidence as to with whom the jewels were pledged and no receipt for pledging the jewels for raising funds has been produced. Under such circumstances, this court is able to find that the prosecution witnesses, namely PW1 to PW4 are not speaking the truth and that they being close relatives of the deceased and also closely related to each other have chosen to cause systematic improvement in their version, perhaps due to grudge, they have got against the accused on suspicion that the deceased would have committed suicide due to any incident that might have happened in her matrimonial home. Therefore, this court comes to the conclusion that the evidence of PW1 to PW4 are not enough to prove that there was any demand by the appellants/accused for payment of dowry.
17.Even assuming that the accused wanted PW1 to give money after pledging the jewels of the deceased, the same will not amount to demand of dowry. The evidence is to the effect that they simply wanted a help by raising funds by pledging jewels of the deceased to discharge their debt incurred at the time marriage of the first appellant. When such a request was made, it was open to PW1 and PW2, either to concede and act on the request or to reject it stating their inability. In this case, the evidence of the above said witnesses do not straightaway point out the fact that the appellants/accused approached PW1 and PW2 for such help or making such a demand. On the other hand, it is their evidence that the deceased alone came to her parents house and wanted them to arrange for a sum of Rs.20,000/- for discharging the debt of the family of her husband, which was incurred for the marriage of the first appellant and the deceased. Of course, an attempt was made to show that the appellants 2 and 3 met PW1 and PW2 subsequent to a request made by the deceased and asked them to arrange for a sum of Rs.20,000/- at least by pledging the jewels of the deceased if they were not able to raise the amount otherwise. The said evidence is capable of showing that only a request was made to lend a helping hand to tide over the difficulty. No-where in the evidence, it has been stated that the deceased Menaka was treated with cruelty or harassment to make her bring dowry, either soon prior to her death or at any point of time between the marriage and the time of her death.
18.On the other hand, there are some admissions made by the prosecution witnesses that PW1 and PW2 wanted a separate residence to be set up for their daughter and her husband. PW1 has candidly admitted that her daughter had an intention of setting up a separate family for herself and her husband. PW2 has also made such an admission stating that the appellants/accused informed them that they could set up a separate residence for the deceased and her husband, only if Rs.20,000/- was given. If the above said admissions are taken into account and the testimonies of PW1 to PW4 are evaluated in the light of such admission and the contradictions and discrepancies pointed out supra, then only possible conclusion to which this court can come is that there was no proof of demand of dowry and cruelty or harassment demanding dowry soon prior to death warranting a presumption under section 113-B of the Evidence Act. There is also no evidence to show that there was cruelty or harassment, demanding dowry anywhere and at any time between the date of marriage and the date of death of the deceased warranting a presumption under section 113-A of the Evidence Act. It is not mandatory to raise a presumption under section 113-A, simply because the suicide has occurred within seven years from the date of marriage. The term used is 'may' and not 'shall'. It is also appended with a rider that such a presumption may be raised, taking into consideration other attending facts and circumstances of the case. The facts and circumstances of the case narrated above will negate against the sustainability of raising a presumption under section 113-A of the Evidence Act also.
19.For all the reasons stated above, this court comes to the conclusion that the prosecution has miserably failed to prove the commission of an offence by the appellants/accused punishable under section 304-B by the appellants/accused, for which they were prosecuted. Nor did the prosecution prove that the appellants/accused have committed an offence under section 306 IPC or any other lesser offence. The learned trial Judge failed to appreciate the evidence in proper perspective and apply the provision of law regarding presumption correctly. Such a failure has led to the impugned judgment of conviction and this court does not have any hesitation to hold such a judgment of conviction defective, infirm and liable to be set aside.
20.In the result, the appeal succeeds and the judgment of the trial court, dated 18.12.2002 convicting the appellants/accused for offence under section 304-B IPC in S.C.No.124 of 2002 on the file of the Additional Sessions Judge, Fast Track Court No.1, Madurai is set aside. The appellants/accused are acquitted in respect of the above said offence for which they were prosecuted. The fine amount paid, if any, shall be returned to the appellants/accused. The bail bond shall stand cancelled.
er To, The Additional Sessions Judge, Fast Track Court No.1, Madurai.