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2002 DIGILAW 1581 (MAD)

Lakshmanan v. State

2002-12-13

A.KULASEKARAN

body2002
Judgment :- The appellant is the 1st Accused, who was convicted for the offence under Section 304 B of IPC in SC No. 71 of 2000 by the Principal Sessions Judge, Pudukottai sentenced him to undergo rigorous imprisonment for seven years and to pay a fine amount of Rs.5,000/-, in default undergo rigorous imprisonment for one year. 2. The case of the prosecution is that the deceased Santhi had married the appellant herein about seven months before the date of incident which took place on 23-06-1999. At the time of marriage, the parents of the deceased have given nine sovereigns of jewellery to the deceased and two sovereigns chain, one sovereign ring, wrist watch and other house hold articles to the appellant. The appellant, his mother, unmarried brother and sister have raised a demand of motor cycle and 25 sovereigns which was not met, with the result she was subjected to torture and cruelty which made the deceased to hasten her death by hanging herself. A case was filed by the respondent/police against the appellant, his mother, unmarried brother and sister for the offence under Section 304 B IPC, however the trial court acquitted the said three persons as the prosecution failed to prove the charges against them. On 23-06-1999, at about 9.00 a.m. the sister-in-law of the deceased came out of the house with hue and cry that the deceased hung herself. Immediately, PW4, a neighbour rushed inside the house and found the body hanging on the ceiling fan. He removed the body from the ceiling fan with the help of neighbours and found she was dead. PW4 taken Ex.P2 written by the deceased kept inside her blouse wherein she has narrated that she was subjected to torture and cruelty due to the dowry demand made by her husband and in-laws were not met. On receipt of the information, Pws 1 and 2 have come to the place of occurrence, later PW1 had lodged a complaint, Ex.P1 to the respondent/police at about 14.30 hours. After investigation, charge sheet was filed Under Section 304 B IPC against the appellant and three others. The trial court acquitted others and convicted the appellant alone. 3. Mr. On receipt of the information, Pws 1 and 2 have come to the place of occurrence, later PW1 had lodged a complaint, Ex.P1 to the respondent/police at about 14.30 hours. After investigation, charge sheet was filed Under Section 304 B IPC against the appellant and three others. The trial court acquitted others and convicted the appellant alone. 3. Mr. Ashok Kumar, learned counsel appearing for the appellant submitted that the prosecution has not established the ingredients of the offence alleged against the appellant herein; that the witnesses examined on the side of the prosecution are interested witness which ought not to have been relied on by the trial court; that there is no allegation that there was a demand for dowry by the accused in the absence of any demand, the appellant cannot be convicted for the offence under Section 304 B IPC; that the court below failed to see that Pws 1 and 2 have admitted in their evidence before the Panchayatars that the appellant has given up the alleged demand of dowry and taken her back to his house; that the court below ought to have seen that the alleged suicide note, Ex.P2 left by the deceased does not implicate the accused; that nothing is mentioned in the suicide note for the alleged demand of dowry made by the appellant; that the evidence before the court below appears to be highly exaggerated version, if tested in the background of other materials and records which includes the enquiry conducted by the RDO and his report, it would make it clear that their evidence is not trustworthy to warrant a conviction; that the deceased committed suicide because she was not married to the person of her choice and that due to frustration she has committed suicide. The learned counsel further submits that no conviction at all can be based on the evidence let in by the prosecution and in any event it is unsafe to test the evidence of prosecution witness and prayed for setting aside the conviction and sentence imposed by the trial court. 4. Mr. Jayaprakash Narayanan, learned Government Advocate appearing for the respondent/police vehemently opposed the arguments of the learned counsel for the appellant stating that the evidence of Pws 1 to 5 are cogent, corroborative and proved the case against the appellant for the offence under Section 304 B IPC beyond reasonable doubt. 4. Mr. Jayaprakash Narayanan, learned Government Advocate appearing for the respondent/police vehemently opposed the arguments of the learned counsel for the appellant stating that the evidence of Pws 1 to 5 are cogent, corroborative and proved the case against the appellant for the offence under Section 304 B IPC beyond reasonable doubt. The learned Government Advocate further submitted that within seven or eight months from the date of marriage, the death occurred, hence the presumption always follows that it is a dowry death and the accused are responsible for the same and prayed for dismissal of the appeal. 5. Now, we look into the evidence of the prosecution:- 6. On behalf of the prosecution, Pws 1 to 12 were examined, Exs. P1 to P22 and Mos 1 to 20 were marked. 7. PW4, who is working as an Office Assistant in Education Department, residing in the next house, on hearing the cry of sister-in-law of the deceased rushed up into the house at about 9.00 a.m. on 23-06-1999 where he found the body of the deceased hanging in the ceiling fan; that with the help of others, he removed the body and laid it on the cot. He also found Ex.P2 inside her jacket and handed over the same to PW2. PW4 has admitted in his evidence that at the time of enquiry, he has not informed the police about Ex.P2. A suggestion was put to him by the defence that he has not taken any letter, much less Ex.P2, which was denied by him. 8. PW1, mother of the deceased deposed that at the time of marriage, she presented two sovereigns chain and one sovereign ring, wrist watch and other house hold articles to the appellant herein and also presented nine sovereigns jewels to the deceased. The deceased, the appellant, his mother, unmarried sister and brother are living together as joint family in the very same house. Three months after the marriage, the appellant herein demanded motor cycle and 25 sovereigns and threatened her to kill by pouring kerosene on her and set fire, if she fail to get it from her parents house, which was intimated to her by PW2. Later, the deceased was sent out of house and she was staying in the house of the said PW2, her cousin brother for a period of two months. Later, the deceased was sent out of house and she was staying in the house of the said PW2, her cousin brother for a period of two months. PW1 further deposed that a Panchayat was conducted wherein it was categorically informed to the appellant that they are not agreeable for the said dowry as they have done everything at the time of marriage and the deceased was taken back by the appellant. After fifteen days when she has come to the house of PW2 at Thirumayam where she was informed the death of Santhi. A complaint, Ex.P1 was given by her at 14.30 hours on 23-06-1999 with Thirumayam Police Station which was written by PW2. In her cross-examination she has stated that she could not remember the name of the Panchayatars. She denied the suggestions that there was no dowry demand, no Panchayat was held and deceased died due to frustration. 9. PW2, cousin brother of the deceased has deposed that he only arranged the marriage of the deceased with the appellant. He also spoken about the presentations made at the time of marriage, demand of motor cycle and 25 sovereigns of gold and also the Panchayat held in Thirumayam. He has also stated in his evidence that he received the suicide note, Ex.P2 from PW4 and delivered to the Inspector of Police on the very same day. He denied the suggestion that Ex.P2 and some papers of the note books were cooked up by him and delivered it 15 days after the death. 10. PW5, Annamalai, who was the Revenue Divisional Officer during the relevant time deposed that after receipt of FIR from the Sub-inspector of Police, Thirumayam Police Station he went to Melur Village at about 4.00 p.m. on 23-06-1999 and prepared inquest report, Ex.P3. He also stated in his evidence that he has received Ex.P2 and other papers containing the scribes of deceased from PW2. In his cross-examination, he has admitted that he has not recorded the statement of PW2 because he repeated the version of PW1. He also deposed that he has forwarded his report, Ex.P3 to the Collector on 02-07-1999 after receipt of the Post-mortem Certificate. He has contradicted his own statement in cross and stated that though he has received Ex.P2 from a person, he could not remember from whom he has received it. He also deposed that he has forwarded his report, Ex.P3 to the Collector on 02-07-1999 after receipt of the Post-mortem Certificate. He has contradicted his own statement in cross and stated that though he has received Ex.P2 from a person, he could not remember from whom he has received it. It is also stated that he has not enclosed Ex.P2 while forwarding his report Ex.P3 to the Collector. A suggestion was put to him that is first report was sent as if the death was not occurred due to dowry torture and later, after receipt of Ex.P2, it was modified to suit the convenience was denied by him. He also further denied the suggestions that Panchayatdars stated that the death not due to dowry harassment, but due to family dispute, which was ignored delibrately by him and the statements of other witnesses were prepared by him with anti-dates. 11. PW6, the Medical Officer, who has given the Postmortem has deposed that no poisonous substance was found in the stomach of the deceased. PW12, the Investigating Officer deposed that he commenced the investigation on 10-07-1999 and recovered some of the material objects in the presence of Mahazar witnesses. The suicide note was received by him on 17-08-1999 from PW5; that under Ex.P18 a requisition was made to the Court to send Ex.P2 to the handwriting experts for their opinion, later he filed charge sheet against Accused 1 to 4 for the offence under Section 304 B IPC on 17-09-1999. Ex.P2 and connected documents were sent to handwriting experts for their opinion on 07-09-1999. Their report, Ex.P20 was received on 12-06-2000. 12. The accused were questioned under Section 313 of Cr.P.C. on the basis of the materials available before the trial court wherein the 1st accused admitted the marriage but disputed the Panchayat, the alleged harassment caused to the deceased and the demand of 25 sovereigns and motor cycle. 13. Section 304 B IPC can be made applicable to cases of suicide. The essential ingredients of the said section are (i) death of a women occurring otherwise than under normal circumstance, within seven years of marriage and (ii) soon before her death she should have been subjected to cruelty and harassment in connection with the demand for dowry. 13. Section 304 B IPC can be made applicable to cases of suicide. The essential ingredients of the said section are (i) death of a women occurring otherwise than under normal circumstance, within seven years of marriage and (ii) soon before her death she should have been subjected to cruelty and harassment in connection with the demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment be presumed to be guilty of the offence. 14. In this case, the marriage between the appellant and the deceased is not disputed and the death is not due to natural cause is also not disputed by the appellant herein. The relationship of the appellant and the deceased and the period between the marriage and death occurred otherwise other than the normal circumstance are also not disputed. 15. The second ingredient of Section 304 B is that she should have been subjected to cruelty or harassment in connection with any demand for dowry is concerned, the burden of proof lies on prosecution. It is well settled that dowry has to be understood as it is defined under Section 2 of the Dowry Prohibition Act, 1961. The Honourable Supreme Court had observed that there are three occasion related to dowry. One is before marriage, second is at the time of marriage and the third occasion may appeared to be unending period. However, the harassment or cruelty should have happened 'soon before the death'. It should have nexus between the death and dowry related harassment. No presumption under Section 113-B of Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty and harassment thereafter. 16. Considering the arguments advanced by the counsel for the appellant and the respondent, the oral evidence let in by the prosecution and keeping in mind the ingredients of Section 304 B IPC, I analyse the judgment of the court below. The trial court placed much reliance on the oral evidence of PW1, PW2, PW4 and PW5 and arrived at a conclusion that the deceased Santhi was subjected to dowry harassment and cruelty by the appellant herein. The trial court placed much reliance on the oral evidence of PW1, PW2, PW4 and PW5 and arrived at a conclusion that the deceased Santhi was subjected to dowry harassment and cruelty by the appellant herein. The trial court had also held that the charges against the Accused 2 to 4 were not proved beyond reasonable doubt and acquitted them. 17. The case of the prosecution is that the appellant raised a demand of motor cycle and 25 sovereigns three months after the marriage and also threatened her to kill by pouring kerosene and set fire, if she fails to get it. The said demand made by the appellant was communicated by the deceased to PW2 only. Later, the appellant sent the deceased out of matrimonial house as she failed to bring the said dowry and she stayed in PW2's house for two months. A panchayat was arranged in Melur 15 days prior to death and there also the appellant has reiterated his demand in the presence of PW1, PW2, Alagan and Murugan, however PW1 and PW2 turned down his demand and countered him that sufficient jewels were given at the time of marriage and left the deceased in matrimonial house after persuading the appellant. It is seen from the evidence of PW1 that the alleged demand of dowry by the appellant was communicated only to PW2 by the deceased and not to her. If such demand of dowry coupled with serious threat is made by the appellant, that too, within 3 months of her marriage, the deceased would have definitely communicated the same to her mother namely PW1. It is seen from the evidence of PW1 that the deceased did not communicate it to her. This creates a suspicion in the mind of this Court as to whether the appellant has raised a demand as alleged. 18. The Revenue Divisional Officer/PW5 conducted inquest over the dead body on 23-06-2001 and prepared his report Ex.P3 dated 02-07-1999. The Panchayatdars Alagappan, Vadivelu, Chinniah, Shanmugam and Muthu were present. The Panchayatdars have not whispered anything about the demand of dowry allegedly made by the appellant, but stated that due to misunderstanding she left the matrimonial house and stayed in the house of PW2 and she was brought back by PW2 and other relatives. The Panchayatdars Alagappan, Vadivelu, Chinniah, Shanmugam and Muthu were present. The Panchayatdars have not whispered anything about the demand of dowry allegedly made by the appellant, but stated that due to misunderstanding she left the matrimonial house and stayed in the house of PW2 and she was brought back by PW2 and other relatives. The Panchayatdars further stated that the deceased might have committed suicide due to family problems other than the dowry issue and the appellant, his father, mother and sister were not at all present at the time of occurrence. If really Ex.P2 was available on that day, PW2 would not have failed to inform it to PW5. PW1 was said to have been examined by PW5 on 23-06-1999 itself. PW1 has stated that appellant's family has not insisted upon any jewels at the time of marriage, but the next month they have started harassing the deceased by raising a demand of motor cycle and 25 sovereigns, with the result deceased has come to PW2's house, where she stayed for two months, later a Panchayat was conducted and on persuasion the appellant has taken her back. In the said statement, no mention about Ex.P2 nor made any specific averment against anybody regarding dowry demand. The said statement was attested by PW2 as true and correct. Later, PW2 in total contradiction deposed before the trial court that he has informed about Ex.P2 to PW5 on 23-06-1999 itself. Not content with, he further deposed that Ex.P2 was handed over to Police on 23-06-1999 but nothing is seen in Ex.P1, complaint to police which is the earliest material available in this context. Ex.P1 was received by the learned Magistrate only on 10-07-1999. Similarly, Ex.P3 was received by the Collector on 02-07-1999. PW5 has admittedly not enclosed Ex.P3 along with his report. The introduction of Ex.P2, its content and the contradictory evidence of PW1, PW2, PW4, PW5, PW6, PW10 and PW12 in respect of Ex.P2 creates suspicion in the mind of the Court. 19. The prosecution case is built on the evidence of PW2, PW4 and Ex.P2 in respect of the alleged demand of motor cycle and 25 sovereigns which was disputed by the appellant and others. As already pointed out that PW1 has come to know the demand of dowry on the information said to have been given by PW2. 19. The prosecution case is built on the evidence of PW2, PW4 and Ex.P2 in respect of the alleged demand of motor cycle and 25 sovereigns which was disputed by the appellant and others. As already pointed out that PW1 has come to know the demand of dowry on the information said to have been given by PW2. In the foregoing circumstances, it is unsafe to accept the evidence of PW1. Hence, I have taken great care and caution in analysing the evidence of PW2, as he was examined two years after the occurrence. In cross-examination, PW2 has admitted that he has not enquired about the alleged threat cum demand of motor cycle and 25 sovereigns made with the appellant. Similarly, he could not remember the date of Panchayat and total number of persons participated. PW2 stated that he delivered Ex.P2 on the day of occurrence to respondent/police, however, the note books and paper which contain the handwriting of the deceased were said to have been handed over to PW5 by three months. Though PW4 has stated in his evidence that the suicide note, Ex.P2 was handed over to PW2, who in turn handed over it to police on the same day, no whispering about the same by PW1 in her complaint Ex.P1 or statements recorded by PW5 which is part and parcel of Ex.P3. The reason for non-mentioning of Ex.P2 either to police or to PW5 is not at all explained by the prosecution. It is also rather strange that PW4 in his cross-examination stated that the police has enquired him on the same day of occurrence, but he has not stated anything about Ex.P2 to them. 20. On a careful consideration of the above materials, I am of the view that the prosecution has not established the demand of motor cycle and 25 sovereigns allegedly raised by the appellant. The evidence of prosecution witnesses are not consistent with the contents of Ex.P2. The trial court failed to discuss the above facts. 21. Unlike other offences, the offence under Section 304-B having a deeming provision as to nature of death as dowry death and that the husband or his relative is deemed to have caused such death, even in the absence of evidence to prove these aspects, but on proving the existence of ingredients. 21. Unlike other offences, the offence under Section 304-B having a deeming provision as to nature of death as dowry death and that the husband or his relative is deemed to have caused such death, even in the absence of evidence to prove these aspects, but on proving the existence of ingredients. Hence, the need for greater care and caution is required in arriving at a conclusion that as to whether all the ingredients are proved by prosecution. The trial court relied much on Ex.P2 to arrive at a conclusion that there was a persistent dowry demand. The trial court, however, did not discuss and record reasons as to whether the deceased was subjected to cruelty of dowry before her death. Though PW1 and PW2 deposed that the deceased was taunted by the appellant, other details of taunting had not been spelt out. 22. The relevant portion of Ex.P2 is as follows:- "I have attempted to commit suicide on 15-06-1999, but could not succeed. They abused me by saying that I have illegitimate intimacy with my father-in-law. In addition to that they demanded vehicle and 25 sovereigns. I could not marry the person of my choice. I have consumed medicine, if any mistake in this letter please forgive me." Below the signature, she has also written a note that "I consumed medicine, but it takes more time to die, hence I hung myself". 23. It is also essential to test Ex.P2 in the light of Section 32 and 113-B of Indian Evidence Act. Section 32 of the Indian Evidence Act contemplates the cases in which statement of relevant facts by person who is dead or cannot be found is relevant subject to certain conditions namely when it relates to cause of death; or is made in course of business; or against the interest of maker; or gives opinion as to public right or custom or matters of general interest; or relates to existence of relationship; or is made in 'will' of deed relating to family affairs; or any document relating to transaction mentioned in Section 13, clause (a); or is made by several persons and expresses feeling relevant to matter in question. 24. 24. To attract the provisions of Section 32 of Indian Evidence Act, for the purpose of admissibility of statement of a deceased, the prosecution has to prove that the statement was made by a person, who is dead and circumstances of the transaction include evidence of cruelty which produces a state of mind favourable to suicide, although that would not by itself sufficient unless there was evidence of incitement to end her life followed (Kans Raj Vs. State of Punjab and others) 2000 SCC (Crl) Vol-2 935. In the case on hand, the allegation was that the appellant herein has demanded dowry with the result the deceased stayed away from him for a period of two months, later she joined the appellant after the alleged Panchayat. Admittedly, the demand said to have been made by the appellant was not met, however, by alleged persuasion the appellant has taken her back just 15 days prior to the date of occurrence. The statement recorded by witnesses, who participated in the inquest enquiry do not indicate any demand of dowry. Indeed, the witnesses have stated, except interested witness PW1 that the miserable end has come due to misunderstanding other than dowry problem. As I have already indicated, no whispering about Ex.P2 at the time of filing complaint, Ex.P1 to the police or at the time of giving statement to the inquest report, Ex.P3 by PW1. It is alleged in Ex.P2 that the deceased consumed poison (medicine) but it did not bring immediate death she hung herself. The doctor who carried out Postmortem deposed that no poisonous substance was consumed. Thus, the contents of Ex.P2 not free from doubts. It is well settled that evidence of handwriting experts can never be conclusive, followed AIR 1963 SC 1728 (Ishwari Prasad Misra Vs. Mohammad Isa). The Honourable Supreme Court further observed in (Chandrakant Chimanlal Desai Vs. State of Gujarat) (1992) 1 SCC 473 that the evidence of handwriting expert is not decisive unless prosecution version is believable. The case of the prosecution in the present case, in my considered opinion is unbelievable, besides that the prosecution failed to prove that Ex.P2 was written by deceased, hence it is inadmissible. 25. After persuasion, the appellant herein has taken the deceased back, hence it shall be deemed that the demand for dowry is not persisted. The case of the prosecution in the present case, in my considered opinion is unbelievable, besides that the prosecution failed to prove that Ex.P2 was written by deceased, hence it is inadmissible. 25. After persuasion, the appellant herein has taken the deceased back, hence it shall be deemed that the demand for dowry is not persisted. In other words, even assuming without admitting any such demand is made, the same stood resolved as the deceased was taken back. Hence, it is not proper to draw presumption under Section 113-B of the Indian Evidence Act against the appellant herein. I do not find any reliable evidence on record to connect the appellant with the alleged commission of offence. 26. It is clear that there is no convincing evidence proving the existence of the ingredients of the said offence of demand of dowry or subjecting the deceased to cruelty in connection with dowry other than the inconsistent statement of interested witness PW1 and PW2. No independent witness was examined to speak about the demand and subjected to cruelty. The deceased was very much disturbed because of suspicion of her fidelity by her in-laws. Indeed, in-laws are acquitted by the trial court. Admittedly, there was no demand of dowry at the time of marriage in 1998. The appellant has accepted the deceased and taken her back though the alleged dowry raised by him was not met. There are material contradictions and omission in the evidence of prosecution, particularly PW1, PW2, PW4 and PW5. The evidence of the said witnesses are inconsistent with the contents of Ex.P2. Ex.P2 has been introduced belatedly, in suspicious circumstance and contents of the same is inconsistence with the evidence of PW1, PW2, PW5, PW6 and PW10. The suspicion of her fidelity by the in-laws appears to be the reason for the unfortunate suicide, but not in connection with dowry demand. The trial court did not properly consider the evidence to reach the conclusion that the appellant was guilty. 27. Therefore, I hold that the prosecution has not made out a case against the accused. The judgment of learned trial judge is liable to be set aside and accordingly set aside and the appellant is acquitted. The bail bond, if any executed by him stand cancelled and fine amount, if any paid shall be refunded to him. Thus, the Criminal appeal is allowed. No costs.