Dr. G. M. Natarajan v. State of Others — 1995 DIGILAW 221 (MAD)

Judgment :- This revision is directed against the order of acquittal passed by the learned Assistant Sessions Judge, Udumalpet, Coimbatore District, in S.C. No. 122 of 1990 for the alleged offence under Section 4 of the Dowry Prohibition Act and also under Sections 498-A and 304-B, Indian Penal Code 2. The case of the prosecution before the trial Court is as follows Deceased Velumani was married to the first accused/first respondent herein on 3-6-1984. Though 20 sovereigns of gold jewels and other ariticles were provided to her at the time of the marriage, her husband and mother-in-law the second accused/second respondent, were harassing her to get some more jewels and also to get a Moped from her parents. Due to this harassment, the deceased Volumani lodged a complaint against her husband and mother-in-law on 3-9-1985 in Peelamedu Police Station. The Sub-Inspector of Police P.W. 16 inquired the complaint. As both parties agreed to settle the matter between themselves, he recorded the statement of compromise Ex. P. 8 from them and closed the case. Even after that, the harassment continued and on 25-9-1988, deceased Velumani jumped into the well with her six months old child. P.W. 2 who got into the well, with the assistance of some others, was able to save only the child but Velumani drowned and her body alone was taken out of the next day. Message was sent to P.Ws. 1 and 4, the brothers of Velumani, and her parents the death of Velumani. P.W. 1 on learning from the neighbours that his sister Velumani was harassed and beaten on that morning and was driven to commit suicide, he lodged a complaint with the Deputy Superintendent of Police, Pollachi, who directed for investigation. As it was a suspicious death, the complaint was registered under Section 174 Code of Criminal Procedure and P.W. 18, the Executive Magistrate (Tahsildar) held the inquest and submitted the report Exs. P-11 and P.W. 19, the Deputy Superintendent of Police, took up the investigation and filed the charge-sheet against these respondents. The learned Assistant Sessions Judge, considering the evidence of the witnesses on the prosecution side, has found that the prosecution has not brought home the guilt of the accused and therefore acquitted the accused. Challenging this order of the learned Assistant Sessions Judge, P.W. 1 has come forward with this private revision 3. The learned counsel appearing for the revision petitioner Mr. Challenging this order of the learned Assistant Sessions Judge, P.W. 1 has come forward with this private revision 3. The learned counsel appearing for the revision petitioner Mr. P. K. Rajagopal submitted that the learned Assistant Sessions Judge, without understanding the purport of Sections 304-B, I.P.C. and 113-B of the Evidence Act, has shifted the burden of proof upon the prosecution in this case, though it is shown by the prosecution by abundant evidence that the deceased was subjected to cruelty and harassment for dowry and therefore the Court should have presumed in this case that the death of Velumani was due to the harassment by the accused unless the accused was able to prove that death was on account of some other reasons and therefore in this case, there is patent error in the order of the learned Assistant Sessions Judge, leading to the miscarriage of justice 4. The fact that the death of Velumani was only by suicide is not disputed by the accused also. The evidence is clear from P.Ws. 2, 3, 6, 7 and 9, who are residing adjacent to the house of the accused, have stated that the second accused shouted that Velumani had jumped into the well and therefore P.W. 2 got into the well to rescue her with the help of a rope. Another important fact is that the six months old child of Velumani also was floating on the surface of the water. It is clear from the evidence that deceased Velumani along with her child in arms, jumped into the well not only to end her life but also not to allow her child to live in this world. Only on account of such a frustration in her life or with a feeling that she should not live any more time and also not to leave her child in her absence, she seems to have jumped into the well with her child. Therefore, it is a suicide on the part of Velumani. The striking miracle is that the six months old child, which was floating on the surface of the water, has been rescued by P.W. 2 but unfortunately Velumani had drowned and her body alone could be taken out 5. Therefore, it is a suicide on the part of Velumani. The striking miracle is that the six months old child, which was floating on the surface of the water, has been rescued by P.W. 2 but unfortunately Velumani had drowned and her body alone could be taken out 5. When it is brought out that the deceased Velumani had committed suicide and that too within 7 years after her marriage, certainily Section 113-B of the Evidence Act and 304-B, I.P.C. will be attracted if the death was due to dowry demand. If it is shown from the evidence that the deceased was subject to harassment and cruelty in connection with any demand for dowry, then undoubtedly, the Court has to presume that the death was due to the harassment for dowry. But the learned counsel for the respondents Mr. Sengottian argued that the mere allegation or evidence from the enterested witnesses to the effect that the accused persons were demanding dowry is not sufficient to apply Section 113-B, of the Evidence Act and according to the learned counsel, such harassment or cruelty must have been seen before the death and secondly, the evidence for such harassment of dowry must be unassailable and only in such cases Section 113-B of the Evidence Act and 304-B, I.P.C., could be invoked for throwing burden upon the accused persons that the death was for some other reasons. The learned counsel Mr. Sengottian contended that in a private revision, the evidence cannot be re-assessed and the only question to be seen is whether there is any patent error in the finding leading to the miscarriage of justice or otherwise, the order of the Court below cannot be interfered with 6. It is true that the evidence cannot be reassessed at this stage. But the question raised in this case by the learned counsel for the revision petitioner is that the burden of proof has been wrongly shifted upon the prosecution in spite of Sections 304-B, I.P.C. and 113-B of Evidence Act as the prosecution has shown that there was dowry harassment and therefore, the shifting of burden wrongly upon the prosecution itself is a patent error on account of which the acquittal of the accused is a miscarriage of justice. Sections 304-B, I.P.C. and 113-B of the Evidence Act relating to the presumption as to the dowry death require the proof that there was cruelty or harassment of the woman soon before her death. But the learned counsel for the respondents 2 and 3 Mr. Sengottian would contend that the Proof adduced in this case for the harassment is only from the close relations of the deceased and the enemies of the respondents 2 and 3 and therefore that part of the evidence cannot be taken to satisfy the requirements of Section 113-B of the Evidence Act which requires the harassment soon before the death of the victim 7. As the burden of proof is the main controversy in this revision, it has become inevitable to refer to the evidence in this case to find out whether the requirement of Sections 304, I.P.C. and 113-B of the evidence Act has been complied with. In this connection, there is the written complaint of the deceased Velumani herself under Ex. P-7 on 3-9-1985, that is nearly one year after her marriage for harassment. In this complaint Ex. P. 7, addressed to the Peelamedu Police, she has alleged that after her marriage, she was beaten by her husband to get 13 sovereigns of her jewels to discharge the debts of her husband's family, that thereafter her husband and mother-in-law drove her from the house with a direction that she should come out with a Moped for the use of her husband, that while she was living with her parents for five months, she was taken back by her husband saying that her mother-in-law was unwell, that again they were harassing her demanding money, that sometime later, her husband told her that they could have a separate residence leaving her in-law's house and they lived separately in Ranganathapuram where once again her husband was harassing her to get Moped and that the four sovereigns of her jewels were also sold by him, that he purchased, the Moped only by selling her jewels and thereafter on the direction of her husband, they joined the house of her in-laws where her mother-in-law insisted for 10 more sovereigns, otherwise not to enter into the house and therefore, she was forced to come to her parents' house. She has further stated, in this complaint that her mother-in-law was arranging for a second marriage to get dowry for her son and she should be saved from her husband and mother-in-law. Certainly, this complaint of the deceased herself to the police reveals the dowry harassment by her husband and mother-in-law, the second accused. But somehow, P.W. 6, the Sub-Inspector of Police of Peelamedu has stated in his evidence that when he enquired both parties, they agreed to settle and compromise the matter between themselves and therefore on their joint statement Ex. P. 8 he did not take further action. It is true that this complaint was given in 1985 whereas the death of Velumani by suicide had occurred on 25-9-1988 and therefore Ex. P. 7 will not satisfy the requirment of Section 113-B of the Evidence Act as harassment of demanding dowry must have been soon before the death 8. The learned counsel for the petitioner Mr. P. K. Rajagopal, referred to the evidence of P.Ws. 1 and 4, who are the brothers of the deceased, P.W. 5, the person who was interested in the family of both sides, and also P.Ws. 2, 3 and 6 to 9 the residents adjoining the house of the accused and according to the learned counsel, their evidence establish the truth of harassment of the deceased. P.Ws. 2 and 4, who are the brothers of the deceased Velumani have spoken in their evidence the stay of Velumani in their house as she was driven out from her husband's house with the direction to bring jewels and cash. They have also spoken that only on 17-8-1986, her mother died on account of the mental anguish due to miserable life of her daughter Velumani as she was driven out often to bring cash and money. It is the evidence of P.W. 4 that even when the accused came to attend obsequies of his mother, the second accused directed Velumani to come home with the jewel otherwise not to come. P.W. 1 has spoken that after a week of the mother's abseques, as his sister Velumani wanted to join her husband, he requested his friend Raghupathy to take her to her husband's house and persuade the accused for a peaceful life with his sister. Anyhow, the evidence disclose that only a few days before the death of Velumani, she was taken to her husband's house. Anyhow, the evidence disclose that only a few days before the death of Velumani, she was taken to her husband's house. For the reason that P.Ws. 1 and 4 are brothers of the deceased, their evidence cannot be rejected as unbelievable. In Vasantha v. State of Maharashtra 1987 CrLJ 901 , the Bombay High Court held that when the cruelty against a married woman has been spoken by the near relations of the deceased, their evidence cannot be disbelieved as the sufferings of the deceased would be known to her nearest and dearest relations 9. In addition to their evidence, P.Ws. 2, 5, 6, 8 and 9 also have stated that the deceased Velumani was not having a harmonous life in her husband's house. P.W. 2 is the neighbour residing in front of the house of these accused P.W. 2 has stated that the second accused used to frequently quarrel with the deceased and about 1 or 2 months prior to her death when once he questioned, the deceased for the quarrel, she told that ther husband and mother-in-law are harassing her to get dowry from her brothers. According to him even on the date of occurrence, just one hour prior to the death, there was shouting and noise of quarrel he heard and his brother's wife informed him that second accused was shouting that Velumani had fell into the well and therefore he ran to rescue her. P.W. 5 is the resident of Avarampalayam, the place of residence of the brothers of the deceased and he has also stated that the family of P.W. 1 is very close to him and deceased Velumani some time after her marriage returned complaining that her husband and in-laws were harassing her claiming some more jewels. He has also stated about the advice he gave to the deceased. P.W. 6 who is the sister of P.W. 2 has spoken about the quarrel in the house of the accused at about 8.00 a.m. on the occurrence date, followed by the deceased Velumani jumping into the well. She has also spoken that the accused were frequently quarrelling with the deceased. P.W. 6 who is the sister of P.W. 2 has spoken about the quarrel in the house of the accused at about 8.00 a.m. on the occurrence date, followed by the deceased Velumani jumping into the well. She has also spoken that the accused were frequently quarrelling with the deceased. P.W. 8 is the father of P.W. 2, who is residing opposite to the house of the accused and he also would State that on the date of the occurrence at about 7.30 p.m. when he went to the backyard to pass urine, he heard the whimpering voice of Velumani begging not to beat her. According to him as this was a frequent occurrence from the house of the accused, he did not mind it but when he returned back from his land about 9.00 a.m., he heard that Velumani had jumped into the well. P.W. 9 is also a resident on the south east of the house of accused persons. She also corroborated the testimony of P.W. 8 by saying that the heard the cry of Velumani requesting not to beat her and as it was a domestic quarrel between the husband, and wife, she was not serious about it, but subsequently she came to know that Velumani had jumped into the well and the child alone was rescued from the well. It is no doubt true that P.W. 2, P.W. 6 and P.W. 8 belong to the same family and it was suggested that as P.W. 2 competed with second accused for taking lease of a land, which he could not get, there was enmity between the family of P.W. 2 and the accused. P.W. 9 is the member of another family. Anyhow, there is sufficient oral evidence in this case to show that the deceased was harassed before her death demanding articles from her parent's house. In the addition to the oral testimony, the documents placed before the Court also mention about the harassment. In Ex. P-1 complaint itself, P.W. 1 has mentioned that his sister was harassed for dowry. Ex. C-1 is the report sent by the Sub-Collector, Pollachi, to the Collector, Coimbatore, with regard to this incident and he refers to the inquest report of Tahsildar, who conducted the inquest on 26-9-1988, and in Ex. In Ex. P-1 complaint itself, P.W. 1 has mentioned that his sister was harassed for dowry. Ex. C-1 is the report sent by the Sub-Collector, Pollachi, to the Collector, Coimbatore, with regard to this incident and he refers to the inquest report of Tahsildar, who conducted the inquest on 26-9-1988, and in Ex. C-1, the extract of the inquest report is given to the fact that the deceased was harassed in the family of the husband demanding articles from her. Ex. P. 11 is the report of Tahsildar, who was examined as P.W. 18 in this case and in his report also he has mentioned the statement of the person before him with regard to the harassment of the deceased demanding articles. Therefore, when the harassment has been stated in the complaint and also before the Enquiry Officer and also at the time of the inquest, it cannot be easily ignored and the evidence of the neighbours with regard to this aspect also cannot be foregotton. Therefore, it cannot be stated that in this case, it is not shown that the deceased was subjected to cruelty and harassment by her husband and mother-in-law demanding dowry before her death. When this initial burden is discharged by the prosecution, then the burden is shifted to the accused to show that it was not a dowry death but the suicide was for any other reason. In Gurditta Singh v. State of Rajasthan, 1992 CrLJ 309 , it is held that the ingredients for the offence under Section 304-B, Indian Penal Code to be proved are (1) un-natural death of a woman within 7 years after her marriage, (2) she being subjected to crulty or harassment by her husband or any relative of her husband in connection with any demand of dowry. It also reads that the initial burden of proof is upon the prosecution, and when this has been done by the prosecution, then the presumption under Section 113-B of the Evidence Act would arise. It also reads that the initial burden of proof is upon the prosecution, and when this has been done by the prosecution, then the presumption under Section 113-B of the Evidence Act would arise. In Babaji Charana Barik v. State, 1994 CrLJ 1684 , the Orissa High Court has listed out the four ingrediens for the offence under Section 304-B Indian Penal Code, and they are (1) the death of a women under unnatural circumstances, (2) such death within 7 years of the marriage, (3) she must have been subjected to cruelty or harassment by her husband or relative of her husband and (4) such cruelty or harassment was in connection with the demand of dowry. In this case, the un-natural death by suicide within 7 years from the date of marriage is an admitted fact. The witnesses and the documents referred to above show that there was harassment in connection with the demand of dowry. Therefore, naturally the presumption under Section 113-B of the Act has to be drawn unless this is repudiated by the accused 10. The learned counsel appearing for the petitioner would submit, that in this case the accused have not even suggested to the prosecution witnesses that death was due to any other cause and the only suggestion to the eye-witnesses is that they were not speaking the truth and when the reason for the death, according to the accused, was not even suggested by the witnesses, it goes beyond doubt that the death was only on account of the harassment of the deceased. I feel that I need not go in to that aspect in this case, as I am inclined to remand this matter for the reason that the learned Assistant Sessions Judge, throwing the burden upon the prosecution has commented that the prosecution has not proved the case. In the end of paragraph 20 of the judgment, the learned Assistant Sessions Judge obsered that from the evidence, the prosecution has not proved beyond doubt that the deceased was harassed for dowry and the death was on account of this harassment. Again in paragraph 24 also, the learned Assistant Sessions Judge, has concluded that from the evidence of P.Ws. 1 to 9, 12, 18, 19 and also from Ex. P. 5 and P. 7, the prosecution did not establish the offence alleged against the accused and therefore, they are entitled to be acquitted. Again in paragraph 24 also, the learned Assistant Sessions Judge, has concluded that from the evidence of P.Ws. 1 to 9, 12, 18, 19 and also from Ex. P. 5 and P. 7, the prosecution did not establish the offence alleged against the accused and therefore, they are entitled to be acquitted. The learned counsel for the petitioner refers to certain observations of the learned Judge and he has mentioned that the prosecution has not proved the injuries on the deceased to prove the harassment and that though there is allegation about the father-in-law of the deceased, he has not been prosecuted and therefore the prosecution case cannot be true. It is true that even without any injuries on the body of a women she can be harassed. Any how, as the burden of proof has been wrongly shifted upon the prosecution, in spite of the evidence for harrassment, I find that there is manifest error committed by the lower Court on the point of law in this case. It is true that in Akalu Ahir v. Ramdeoram, 1973 AIR(SC) 2145, 1973 (2) SCC 583 , 1973 (79) CrLJ 1404, 1973 SCC(Cr) 903, 1973 CrLR(SC) 493, 1973 SCC(Cri) 903 it has been held that in a revision against acquittal by a private complaint, the High Court cannot re-appraise the evidence for itself as if it is acting us a Court of Appeal. In Chinnasamy v. State of Andhra Pradesh, 1962 AIR(SC) 1788, 1963 (69) CRLJ 8, 1963 (3) SCR 412 the apex Court has held that it is open to the High Court in revision to set aside the order of acquittal even at the instance of private parties though the State might not have thought it fit to appeal, but this jurisdiction should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on the point of law and consequently there has been a flagrant miscarriage of justice. As mentioned above, the shifting of burden upon the prosecution is a patent mistake in this case in spite of the abundant evidence for the harassment of the deceased 11. The learned counsel Mr. K. Sengottian, appearing for the respondents 2 and 3, contended that as the occurrence was in 1988, now this case may not be remitted back for re-trial. The learned counsel Mr. K. Sengottian, appearing for the respondents 2 and 3, contended that as the occurrence was in 1988, now this case may not be remitted back for re-trial. When the conclusion has been arrived at by wrong approach by the lower Court, it has become, inevitable to remand the matter. In Ayodhya v. Ram Sumer Singh, 1981 AIR(SC) 1415, 1981 CAR 288, 1981 (87) CRLJ 1016, 1981 (1) Scale 811 , 1981 (S) SCC 83, 1981 CRLR 430, 1982 SCC(Cr) 471, 1981 SSCC 83, 1981 Supp(SCC) 83, the apex Court has held that when the sessions Judge acquitted the accused by ignoring the probative value of the First Information Report and reliable testimony of eye-witnesses and without considering material evidence on record, and the judgment was full of faulty reasoning, the re-trial orderded by the High Court setting aside the acquittal is perfectly justified. Therefore, I feel that this is a fit case in which the revisional Court should not interfere 12. In view of the foregoing reasons, the order of acquittal passed by the learned Assistant Sessions Judge, Udumalpet, Coimbatore District, is set aside and the matter is remanded back for fresh trial of the case according to law. The respondents accused shall appear before the learned Assistant Sessions Judge on 4th April, 95. The revision is allowed.