IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 10.08.2006 CORAM THE HONOURABLE MR. JUSTICE R.BALASUBRAMANIAN AND THE HONOURABLE MR. JUSTICE V.DHANAPALAN CRL. APPEAL NO. 576 OF 2004 AND CRL. R.C. NO. 1588 OF 2004 CRL. A. NO.576 OF 2004 1. Mr.Sanjay Dalmia 2. Mr.Vijayakumar Dalmia 3. Mrs.Suman Dalmia .. Appellants - Vs - Stare rep. by Deputy Superintendent of Police Crime Branch, CID Metro Wing Chennai – 2. .. Respondent CRL. R.C. NO.1588 OF 2004 P.C. Goel .. Petitioner - Vs - 1. Madhuri Dalmia 2. Stare rep. by Deputy Superintendent of Police Crime Branch, CID Metro Wing Chennai – 2. .. Respondents Criminal Appeal and Criminal Revision filed against the judgment passed by the Mahalir Neethi Mandram, Chennai, in S.C. No.377 of 2001 dated 6.4.2004 as stated therein. For Appellants : Mr.Sanjay Ramasamy For Petitioner : Mr. S.Anantha Narayanan (For Intervenor in CA No.576/04) For Respondents : Mr. N.R.Elango, APP in CA 576/04 & for R-2 in Crl. R.C. No.1588/04 Mr. Sanjay Ramasamy for R-1 in Crl. R.C. No.1588/04 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (JUDGMENT OF THE COURT WAS DELIVERED BY R.BALASUBRAMANIAN, J.) Five persons were tried in S.C. No.377/01 on the file of the Court of Mahalir Neethi Mandram at Chennai under Sections 498-A, 304-B IPC and Sections 4 and 6 (2) of the Dowry Prohibition Act. At the end of the trial, the learned trial Judge found A-1 to A-3 alone guilty of the above referred to offences and, accordingly, sentenced A-1 to undergo imprisonment for life for the offence under Section 304-B IPC and A-2 and A-3 each to undergo rigorous imprisonment for a period of seven years for the same offence. No separate sentence was awarded for the offence under Section 498-A IPC and Sections 4 and 6 (2) of the Dowry Prohibition Act. In addition to the above, A-1 to A-3 were directed to pay a sum of Rs.50,000/= each as compensation to P.W.1 and a sum of Rs.50,000/= each as compensation to the minor child, Piyush Dalmia. The compensation amount, to be paid to the minor, was directed to be invested in a nationalised bank till the minor attains majority. A-1 to A-3 are therefore challenging their conviction before this Court in this appeal. Challenging the acquittal of A-5, P.W.1 in that sessions case is before this Court in the accompanying revision. The State had not challenged the acquittal of A-4 and A-5 in the judgment under challenge. Heard Mr.Sanjay Ramasamy, learned counsel appearing for the appellant and for the contesting respondent in the revision against acquittal; Mr.N.R.Elango, learned Addl. Public Prosecutor appearing for the State in both the cases and Mr.S.Ananthanarayanan, learned counsel appearing for the revision petitioner. 2. The prosecution case is that between 22.1.99 and 30.1.01, the accused subjected Archana, since deceased, to cruelty; made demand for dowry and unable to bear the torture, Archana committed suicide and, therefore, punishable under Sections 498-A and 304-B IPC and Sections 4 and 6 (2) of the Dowry Prohibition Act. To substantiate their case, the prosecution examined P.W.s 1 to 28 besides marking Exs.P-1 to P-62 and M.O.s 1 to 10. The defence examined one witness on their side as D.W.1 and marked Ex.D-1. C.W.1 was examined as a court witness through whom Exs.C-1 to C-3 came to be marked. 3. A-1, A-4 and A-5 are the sons and daughter of A-2 and A-3 (A-2 and A-3 are the father and mother of A-1). A-1 is the husband of Archana, who is the daughter of P.W.1. Archana is the deceased in this case. P.W.1, as already stated, is the father of the deceased, while P.W.2 is the daughter-in-law of P.W.1 and wife of P.W.3. In other words, P.W.3 is the son of P.W.1 and the brother of the deceased. We will extract hereunder in extenso as to what P.W.1 spoke in court on material aspects:- "3.1. I have two sons and one daughter; P.W.3 is the eldest of the three and he is my son; my second son is Rakesh Kumar and Archana is my daughter. all my children are married; Archana was given in marriage to A-1; A-2 is the father of https://hcservices.ecourts.gov.in/hcservices/ A-1, A-4 and A-5; A-3 is the wife of A-2; all the accused were living in West Mambalam as a joint family; I had taken four LIC policies in the name of my daughter to the total value of Rs.5 lakhs; I have purchased Indra Vikas certificate in the name of my daughter, the value of which is Rs.2 lakhs; I am the nominee under all the LIC policies and the maturity value of all the LIC policies is Rs.9 lakhs; the proposal for my daughter's marriage was given on 27.8.98 by P.W.4; it is she, who took the lead for the marriage; during the marriage negotiations, A-2 and A-3 wanted properties to the value of Rs.9 lakhs, besides a cash of Rs.1 lakh as dowry; the properties they demanded include gold jewellery, silver jewellery and silver articles, gold chain, furniture, electronic goods, electrical goods and diamond ring; the jewels would constitute 85 to 90 sovereigns; Rs.75,000/= would be the value of the silver articles; in three instalments, I complied with the demands; during betrothal function, during Tilak function and at the time of marriage I have given what they wanted; in my community there is no such custom of giving dowry; after my daughter's death, I gave a list of the articles given as dowry to the police; as I was looking out for a bridegroom in Chennai for my daughter so that I can see her as often as I like, I gave my daughter in marriage to the bridegroom; the betrothal function was held in Central Sindoori hotel on 26.9. and I do not remember the year; during the betrothal, I gave gold chain, gold ring, gold coin, bracelet, silver coin and cash; but, however, I do not remember how much cash I gave at that time; I have spent about Rs.75,000 to Rs.80,000 on the betrothal function; the Tilak function was held in GRT Grand hotel on 20.1.99; At that time I gave Rs.1 lakh to A-1 as demanded earlier; I also gave bracelet, chain, diamond ring, wrist watch and suit to A-1; I had given a gold jewellery set to A-3 and to A-5 I gave half jewellery set; half jewellery set means without bangles; on the Tilak function day itself I gave 150 silver coins and I spent a sum of Rs.2,25,000/= for that function; only the bridegroom should perform the Tilak function; however, for that function, the expenses were equally shared; the marriage took place in Radha Park hotel on 22.1.99 for which I spent a sum of Rs.3 lakhs; for a few days after marriage my daughter was happy; thereafter, A-1 demanded a sum of Rs.25,000/= from me, which I sent through my daughter. 3.2. A-3 insisted that the nomination under the four LIC policies should be changed in the name of A-1 and, accordingly, I changed the nomination in https://hcservices.ecourts.gov.in/hcservices/ the name of A-1; Exs.P-1 to P-4 are the LIC policies; since my daughter often told me that her husband takes liquor and beats her, I must change the nomination in the LIC policy, I changed it; I advised my daughter to put up with any shortcomings, adjust herself and thus lead a life; I also told her that time will cure all her problems; P.W.7 is a servant in my house and coming to know that my daughter is suffering hardships, I sent P.W.7 to do household works in my daughter's house; he worked there for seven or eight days and then returned; P.W.7 told me that only my daughter is doing all the household works in her in-laws house and she is therefore suffering; A-2, A-3 and A-5 have sent back P.W.7. Even after marriage, all the accused were living as a joint family; A-1 was doing fruit canning business; to expand his business, he wanted a sum of Rs.1 lakh first; then he demanded a sum of Rs.25,000/= and lastly he demanded a sum of Rs.4,75,000/=; A-5's betrothal was held at Delhi; since A-2 and A-3 asked me to look for alliance for their daughter, I arranged an alliance and proposed to them; A-2 came to Delhi along with his family members and he finalised the proposal; the betrothal was in fact held at Faridabad; I did not know how much money was spent for that betrothal function; but, however, that alliance did not go through; the accused wanted me to give them a sum of Rs.1 lakh finding fault that because of me only they spent for that betrothal; through my daughter they made a demand on me to pay Rs.1 lakh to meet the expenses which they have incurred in that betrothal function; however, I did not give the money. 3.3. For the second time there was a betrothal function at Chennai for A-5's marriage for which I was invited; at that time I noticed my daughter totally upset; I also saw my daughter's jewellery were worn by A-5 and my daughter was wearing only imitation jewellery; my daughter was so upset on that also; I gave a chain to A-3 on the seventh month function of my grandson born through my daughter; I gave a chain to A-2 and A-1; as directed by A-2 and A-3, I gave money to the relatives as well; I gave gold coins and silver articles; in January, 2001, I went to Tirupathi; all the accused and my daughter also came and at that time my daughter told me that all the accused are quarrelling with her often and they wanted her to give her jewels to A-5; I told my daughter not to part with the jewels till I tell her; my wife died on 2.9.00; even thereafter, my daughter was alright; but, however, she was very sad over her mother's death; on 23.1.01 A-1 contacted me; After https://hcservices.ecourts.gov.in/hcservices/ A-5's betrothal A-1 telephoned to me and asked me to give a sum of Rs.5 lakhs for his sister's marriage; I expressed my inability; again he said that the marriage is finalised for April and even then I said that I cannot give money; On 30.1.01 my second son (not examined) received a phone call; the caller said "Hello" and then put down the phone; my second son told me that he got the call on 29th and I therefore asked him to contact Dalmias' (A-1, A-2 and A-4 have the surname Dalmia) and enquire as I did not get the telephone line; on 30.1.01 I went for a medical check-up with my eldest son and I returned by about 9.15 a.m. and at that time my second son told me that he spoke to Archana over telephone and Archana cried at that time that she must be taken home immediately; I asked my elder son to speak to Archana over telephone and at the receiving end the phone was attended by A-3 and by calling my daughter by name she gave the phone to my daughter; I heard Archana in tears requesting my elder son to call me and, accordingly, the phone was given to me; it was around 10.00 a.m.; my daughter told me that I must take her immediately and she would tell in person the details; I told her that my second son (not examined) would reach her house by 12.00 noon to pick her up and that she must be ready by that time. 3.4. At 12.00 noon, A-1 telephoned, which call my elder son attended; we were informed that Archana has died and when asked as to what is the cause, the phone was put down; on hearing that, I was totally upset; I, along with my sons and P.W.2 went in a car to see Archana; my elder son made a call on the mobile phone to find out the cause for my daughter's death and the cause was that she committed suicide by pouring kerosene; on reaching the house we found a fire service vehicle opposite to the house; police personnel were also there; we went to the first floor and on the way we found bloodstains in the steps; bloodstains were seen in the screen and the steps; in the first floor, A-1, A-2, A-3 and A-4 were there; A-5 was not there; in the second floor also I noticed bloodstains in the wall; we tried to see Archana's dead body and some persons unknown to me prevented me from proceeding further; I got emotional and I wanted to go up and see, but I could not; I did not have the courage; my two sons told me that they will take care of the situation and advised me to sit by the side; some unknown persons took me and my daughter-in-law to a nearby place where police came and took my signatures in blank papers; I refused to sign; I was taken inside a room where I found A-1, A-2, A-3 and A-4 and one https://hcservices.ecourts.gov.in/hcservices/ C.M.Goel; there was a white paper containing some written material; the aforesaid persons asked me to sign; I signed and Ex.P-5 in the said white paper is my signature; in two papers they have taken my signature, one contained a printed material and the other unwritten material; when I asked them as to why I am asked to sigh, they told me that only then I would be in a position to receive the dead body and in the second paper my signature was taken for the purpose of post- mortem; the Dalmia family members were there and they were keeping quiet; the funeral took place on 1.2.01; I was not keeping good health, I returned home and recovering composure and strength through my second son, I sent a complaint on 7.2.01 giving details of the cruelty meted out to my daughter; that complaint is Ex.P-6, which is given to the Tahsildar; I have written the complaint to the Tahsildar because the police was trying to help the Dalmia family." 4. P.W.20 is the Sub-Inspector of Police in the Ashok Nagar police station. He was on patrolling duty from 7.00 a.m. till 2.00 p.m. on 30.1.01 in the areas lying within the jurisdiction of Ashok Nagar and Kumaran Nagar police station, watching for commission of crimes. At about 11.15 a.m. On that day, when he was patrolling the 4th Avenue in Ashok Nagar, he received a message from the Control Room, Egmore, that he must visit No.1, Baroda 3rd Street, West Mambalam, since there was fire in the terrace. He was asked to give a report after inspection. This made him go to the said place immediately and on reaching the place he found the fire service unit already there. The second floor was an open terrace. P.W.14, the fire service officer, was already there. P.W.20 observed the charred dead body of Archana and the body was lying near the water tank with face upwards. He also observed a burnt white plastic can, which is M.O.1. He recovered it. He recovered M.O.2, a five litre capacity can containing varnish to its 3/4th level. He also found here and there burnt pieces of cloth and they are M.O.s 3 to 5. He also observed a half burnt nylon rope, M.O.6. Then he informed the Asst. Commissioner of Police as well as the Control Room. He found, on the door leading to the open terrace, bloodstains. He also noticed bloodstains in the steps leading from the 2nd floor to the first floor. He also found broken bangle pieces strewn all over the steps. He found bloodstains in the screen of the first floor and the screen is M.O.7. He ensured that nobody tampered with the evidence as per the directions given by the Asst. Commissioner of Police. Then he asked the father-in-law of Archana (A-2) and her husband (A-1) to give a complaint and they directed this witness to enquire Archana's father (P.W.1). When this witness asked P.W.1 to give a complaint, he expressed his inability of not knowing Tamil. A-2 and A-1 were by the side of P.W.1. Goel, present in court, was also there at that time. P.W.20 is not acquainted with Hindi and the constable present with him also do not know Hindi. A-1 and A- 3 talked among themselves in Hindi. Then, whatever they stated in Tamil, he reduced the same into writing as a complaint. A-1 and https://hcservices.ecourts.gov.in/hcservices/ A-2 asked these authorities to take the signature of P.W.1 in the complaint. Then A-1 and A-2 took the signature of P.W.1 and gave it to him. Ex.P-26 is the complaint reduced into writing by the constable present with him. Then he came back to the police station and registered it and prepared Ex.P-27, printed first information report. He sent the dead body to the Royapettah Government Hospital covering it with a dead body, M.O.8. The Asst. Commissioner of Police took up investigation in this case and till he arrived he preserved the crime scene. 5. P.W.27 is the Asst. Commissioner of Police during the relevant time in Greater Chennai. He collected the express records, Exs.P-26 and P-27 registered under Section 174 Cr.P.C. from P.W.20. Since it has come to light that Archana died within two years after marriage, he forwarded the express records to the Personal Assistant (General) to the Madras District Collector through the Sub-Inspector of Police. Then he reached the scene of occurrence, where in the presence of P.W.25 and another prepared the observation mahazar, Ex.P-46 and the rough sketch, Ex.P-52. P.W.25 witnessed the above proceedings. Then P.W.27 sent for the photographer to take photographs of the scene of occurrence as well as the dead body. P.W.18 is the photographer, who accordingly photographed the crime scene as well as the dead body. M.O.23 and M.O.24 series are the photographs and negatives. P.W.27 sent the dead body to the hospital for post-mortem. From the crime scene he recovered M.Os. 1 to 9 under Ex.P-47. Then he sent those properties through the Tahsildar for chemical examination. He examined P.W.24 and others by recording their statements. P.W.20 had already sent the express records to the Personal Assistant (General) to the Madras District Collector. P.W.27 also sent a report to the Personal Assistant (General) to the Madras District Collector about the crime. The Tahsildar, Mambalam-Guindy was directed to conduct inquest. 6. P.W.23, during the relevant time, was Tahsildar, Egmore- Nungambakkam circle. He was directed to conduct inquest regarding the death of Archana. Ex.P-34 is the requisition given by P.W.27 to the Collector to conduct inquest. P.W.23, accordingly, went to the Royapettah Government Hospital where the dead body kept in the mortuary was identified to him, which he observed. Then in the presence of panchayatadars, he conducted inquest over the dead body and prepared Ex.P-25, inquest report. He noticed traces of blood on the left hand elbow of the dead body. He sent a requisition for conducting post-mortem by atleast two doctors. P.W.23 examined Rakesh Kumar (brother of the deceased and not examined in this case), A-1 and the panchayatadars by recording their statements. A-1 brought the panchayatadars. Ex.P-36 is the statement of A-1; Ex.P-37 is the statement of Rakesh Kumar (brother of the deceased and not examined in this case) and Ex.P- 38 is the statement of A-5. In the crime scene, which is an open terrace in the second floor of the house, he found dots of blood and blood spread in the open terrace floor; parapet wall; the door leading to the open terrace and on the side wall of the stairs leading to the open terrace. Post-mortem was conducted by a team consisting of P.W.22 and others. Rakesh Kumar, the brother of the deceased, asked permission from P.W.23 to videograph the post- https://hcservices.ecourts.gov.in/hcservices/ mortem and he accordingly permitted it. However, the team of doctors, who conducted post-mortem, refused permission to videograph the post-mortem stating that it is not possible and only when the dead body is in police custody it could be videographed. Accordingly, P.W.23 permitted videographing of the dead body before commencement of post-mortem. P.W.26 is the videographer, who on the request of the President of Lions Club, Royapuram, went to his office and with him he went to the crime scene. He photographed the bloodstains found in the staircase of the first floor; the wall on either side of the staircase and the screen just at the beginning of the staircase. He was asked to photograph those persons present there and the police personnel. He also noticed broken bangles on the sides of the stair case and plastic pipes. Then he was taken to the open terrace where he was shown the smoked area and he was asked to photograph it. With the permission of the police he photographed it. By 6.30 p.m. on the day, he completed the work and took sixteen photographs. Ex.P-48 series are the videoed photographs (16 Nos.) and the negatives are Ex.P-49 series. The Lions Club President asked him to go to Royapettah Government Hospital to photograph the dead body. Accordingly, he reached the mortuary in the Royapettah Government Hospital on 1.2.01 and he videographed as directed by the doctor. Ex.P-50 is the video cassette. The police personnel there asked him to take photographs also as his video camera had a provision to take photographs. Accordingly, he took photographs also and Ex.P-51 series are the photographs. P.W.23 continued his action further. He examined A-5, who is shown to have suffered burn injuries in the crime scene in SRM Hospital (A-5 was already admitted there on 1.2.01) and examined her by recording her statement. As there were bloodstains in the crime scene, he sent a requisition to the forensic laboratory to depute a scientific expert to examine the scene and, accordingly, the crime scene was examined by scientific experts. Ex.P-39 is the report of such examination. On 7.2.01 P.W.1 gave a complaint and on the same day Rakesh Kumar, brother of the deceased (not examined) sent to him sixteen photographs taken from the scene of occurrence along with a letter. P.W.23 sent those photographs to the Assistant Director of Forensic Laboratory. Ex.P-40 is the letter given to him by Rakesh Kumar. Ex.P-6 was given to him personally by P.W.1. The Asst. Commissioner of Police, Saidapet, sent twenty-one objects recovered by him in connection with this case to him on 7.2.01 and those properties were also sent by this witness to the forensic laboratory as an enclosure to his letter, Ex.P-41. Ex.P-39 (already marked) is the report of the Assistant Director of the forensic laboratory, which he received on 12.2.01. On 19.2.01 P.W.1 sent another letter (Ex.P-42). The inquest conducted by this witness revealed that it may be a case of dowry death and, therefore, he sent his report to the District Collector for investigation by the police. Ex.P-43 is his report. Ex.P-44 is the requisition given by him to the hospital authorities to conduct post-mortem. He received a report only in respect of three objects out of twenty-one from the scientific laboratory, which report he sent to the Asst. Commissioner of Police as an enclosure to his letter, Ex.P-45. https://hcservices.ecourts.gov.in/hcservices/ 7. P.W.27 continued his examination further by examining witnesses and recording their statements. As the occurrence place comes within the jurisdiction of Tahsildar, Egmore-Nungambakkam, a request given by him to the Madras District Collector for conducting an enquiry was forwarded to the said Tahsildar (examined in this case as P.W.23). P.W.24 is the scientific officer. As per the directions of his higher officers, he reached the crime scene at about 7.00 p.m. on 2.2.01. As it was dark at that time disabling him from collecting any incriminating objects from the scene, he decided to postpone his inspection to the next day and, accordingly, he inspected the place at 8.00 a.m. on 3.2.01. He collected several incriminating objects from the crime scene, namely, M.O.5, a broken glass bangle; a paper cover, M.O.4; a partly burnt