BAIL SLIP The Appellant/Accused viz., Vasantha Ravi was directed to be released on bail as per order of this Court dated.07.8.2002 and made in Crl.M.P.No.7648/2002 in Crl.A.No.1145/2002 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS D A T ED: 30.11.2009 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR, J CRL.A.No.1145 of 2002 Vasantha Ravi ... Appellant/Accused No.1 Vs The Inspector of Police C.B.I., S.C.B., Chennai ... Respondent/Complainant PRAYER:Criminal Appeal filed under Section 374(2) of Cr.P.C., against the Judgement dated 18.07.2002 made in S.C.No.10 of 1998 on the file of the III Additional Sessions Judge, Pondicherry. For Appellant : Mr.M.G.Sankaran for M/s.M.Ajmal Khan For Respondent : Mr.N.Chandrasekaran, Special Public Prosecutor (for CBI cases) J U D G M E N T The appellant, who was prosecuted as 'A1' along with his mother Indiraniammal (A2) for offences punishable under Section 304-B r/w 34 IPC, Section 498-A r/w 34 IPC and Section 4 of Dowry Prohibition Act r/w 34 IPC and convicted for the offence punishable under Section 498-A IPC alone with the punishment of rigorous imprisonment for three years and a fine of Rs.5,000/- with a default sentence of six months simple imprisonment in case of default in payment of fine, has come forward with the present appeal under Section 374 Cr.P.C. challenging the said conviction and sentence. 2. The appellant and his mother had been arraigned as A1 and A2 respectively and prosecuted before the trial court for offences punishable under sections 304-B r/w 34 IPC, Section 498-A r/w 34 IPC and Section 4 of Dowry Prohibition Act r/w 34 IPC in S.C.No.10 of 1998. At the end of trial, the learned III Additional Sessions Judge, Pondicherry by his judgment dated 18.07.2002 acquitted A2, the mother of the appellant of all the three charges. The appellant 'A1' https://hcservices.ecourts.gov.in/hcservices/ also was found not guilty and acquitted of two charges only, namely the charges for offences punishable under Section 304-B IPC r/w 34 IPC and an offence punishable under Section 4 of the Dowry Prohibition Act r/w 34 IPC. However, he was found guilty of an offence punishable under Section 498-A IPC in respect of the first charge, convicted for the said offence and sentenced to undergo imprisonment and pay fine as indicated above. Challenging his conviction for the offence under Section 498-A IPC and the sentence imposed thereon, the appellant (first accused) has come forward with the present appeal on various grounds set out in the appeal petition. 3. The case of the prosecution, in brief, can be stated as follows: i) The appellant/first accused is the husband of the deceased Uma Maheswari. She was an advocate by profession prior to her marriage with the appellant/first accused. P.W.11 - Sathyanarayanan and P.W.12 - Geetha Sathyanarayanan are the parents of deceased Uma Maheswari. P.W.15-Senthil and P.W.16-Sridhar are the brothers of deceased Uma Maheswari. P.W.14-Komalavalli is the mother of P.W.12 and thus the maternal grandmother of deceased Uma Maheswari. P.Ws.4 and 5 are close relatives of P.W.12 - Geetha Sathyanarayanan. P.W.3 is also a relative of Geetha Sathyanarayanan. The marriage of deceased Uma Maheswari with the appellant/first accused took place in the month of August, 1994 in Chennai. Thereafter, they were living at door No.87, Saminathan Naicker Street, Ariankuppam, Pondicherry (now Puducherry) Union Territory along with A2 - Indiraniammal, the mother of the appellant and Jayanthi daughter of A2. Subsequently, the deceased and her husband, namely the appellant herein set up a separate family for themselves in the first floor portion of the said house whereas Indiraniammal the mother of the appellant, was occupying the ground floor portion of the said house. ii) While so, on 30.04.1996 at about 10.30 p.m the dead body of the deceased Uma Maheswari was found hanging in a room in the first floor of the above said house. On seeing the same, the appellant/first accused informed the police at about 11.45 p.m, based on which a case was registered on the file of Ariankuppam Police station in crime No.61/1996 under Section 174 Cr.P.C. The original first information was received by P.W.1 - Thambu Ganapathy, Tahsildar cum Executive Magistrate in the office of the Deputy Collector (Revenue), Puducherry. He received the first information Report at about 9.00 a.m on 01.05.1996. Upon such receipt, he proceeded towards Ariankuppam Police station, met the Sub-Inspector of Police, Ariankuppam Police station, took him to the place of occurrence at door No.84, Saminathan Naicken Street, Ariankuppam Street, peeped through the window of the room which was bolted from inside and found the dead body of Uma Maheswari hanging from the fan hook attached to the ceiling. On his instructions, after breaking open the door, the dead body was brought down. However, after noticing the identification mark and salient features of the dead body with the help of the woman constable Selva Mary examined as P.W.6, P.W.1 caused the dead body to be taken to the Government General Hospital, Pondicherry without conducting an inquest on the spot, as according to him, no one came forward to participate in the inquest. https://hcservices.ecourts.gov.in/hcservices/ iii) On 02.05.1996 at about 9.30 a.m. at Government General Hospital, Pondicherry, P.W.17-Periyasamy, the then Sub-Inspector of Police, Ariankuppam Police station conducted inquest over the dead body of Uma Maheswari in the presence of Panchayatdars and prepared Ex.P32-Inquest Report. Subsequently, on receipt of Ex.P10-Report of the Tahsildar addressed to the Station House Officer, Ariankuppam Police Station, the case was altered by P.W.17 into one for offences punishable under Sections 306 IPC r/w 34 IPC and 498-A IPC r/w 34 IPC arraying the appellant and his mother Indiraniammal as A1 and A2, for which Ex.P33-Alteration Report was prepared and sent by him to the jurisdictional magistrate. iv) On 03.05.1996, the case diary file was handed over by P.W.17 to the Inspector of Police for the concerned circle to proceed with the further investigation of the case. Thereafter, the investigation was taken over by Mr.Vijayanarayanan, Superintendent of Police. Subsequently, on his transfer, P.W.18-Shanmugasundaram, Superintendent of Police, Pondicherry (South) took up the investigation from 06.11.1996. After completing investigation, P.W.18 submitted a final report for the prosecution of the appellant and his mother Indiraniammal for an offence punishable under Section 304-B r/w 34 IPC or in the alternative for offences punishable under Sections 498-A r/w 34 IPC, 306 IPC r/w 34 IPC and Section 4 of Dowry Prohibition Act r/w 34 IPC. It seems, thereafter an order was passed by this court on 19.12.1997 in Crl.O.P.No.5042/1997 for the re- investigation of the case, whereupon the case diary file was sent to P.W.9-V.J.Chandran, the Superintendent of Police (CID), who took up the investigation of the case on 21.01.1998. Later on by virtue of an order dated 12.05.1999 made in Crl.O.P.No.19163/1998, the investigation was transferred to CBI, whereupon the case was re- registered as RC No.2/S/99/CBI/SCB under Sections 498-A IPC, 304-B IPC and Section 4 of Dowry Prohibition Act r/w Section 34 IPC against the appellant and his mother Indiraniammal and Jayanthi, the sister of the first accused/daughter of the second accused, for which Ex.P38-First Information Report was registered. P.W.21-G.Kalaimani, the Inspector of Police, CBI Special Branch took up the investigation of the case. P.W.21, after completion of investigation, submitted a final report for prosecuting the appellant/first accused and his mother Indiraniammal (A2) alone for the offences punishable under Sections 304-B, 498-A r/w Section 34 IPC and Section 4 of Dowry Prohibition Act r/w Section 34 IPC. The same was taken on file by the Sub Divisional Judicial Magistrate, Pondicherry as P.R.C.No.28/1997. v) On appearance of the accused persons before the committal court they were supplied with the copies of documents proposed to be relied on by the prosecution to prove the case of the prosecution and after following the procedure for committing the case for trial, the same was committed to the Principal Sessions Judge, Pondicherry for trial. The learned Principal Sessions Judge took it on file as S.C.No.10/1998 and made it over to the learned III Additional Sessions Judge, Pondicherry for disposal according to law. vi) Upon considering the records and after hearing the submissions made on the side of the prosecution and also on behalf of the accused, charges were framed for offences under Section 304-B r/w https://hcservices.ecourts.gov.in/hcservices/ 34 IPC, Section 498-A r/w 34 IPC and Section 4 of Dowry Prohibition Act r/w 34 IPC against the accused persons, namely the appellant/A1 and his mother Indiraniammal/A2. The accused denied the charges and pleaded not guilty, pursuant to which trial was conducted by the trial court in which 21 witnesses were examined as P.Ws.1 to P.W.21 and 43 documents were marked as Ex.P1 to Ex.43 and 175 material objects were produced as M.Os.1 to 175 on the side of the prosecution. vii) After the completion of the evidence on the side of the prosecution, the incriminating materials found in the evidence of the prosecution were culled out and the accused were examined under Section 313(1)(b) of Cr.P.C regarding the same. They denied such evidence as false and reiterated their stand they were not guilty of any offence. During the course of examination, the prosecution witnesses, Exs.D1 to D15 were marked on the side of the accused as defence documents. No witness was examined on the side of the accused. viii) The learned trial judge, thereafter heard the arguments advanced on either side and considered the evidence brought before him in the light of such arguments. Upon such a consideration, the learned trial judge came to the conclusion that none of the charges framed against Indiraniammal, the mother of the appellant who figured as accused No.2, stood proved and hence acquitted her completely. The learned trial judge also came to the conclusion that the charges under Sections 304-B IPC r/w Section 34 IPC and Section 4 of Dowry Prohibition Act r/w Section 34 IPC as against the appellant/first accused were not proved beyond reasonable doubt and accordingly acquitted the appellant/first accused of the above said charges. So far as the first charge, namely the charge for an offence punishable under Section 498-A r/w Section 34 IPC is concerned, the learned trial judge came to the conclusion that the appellant/first accused was proved beyond reasonable doubt to have committed the offence of cruelty punishable under Section 498-A IPC, convicted him for the said offence and sentenced him to undergo imprisonment and pay fine as indicated above. The said conviction and sentence are being challenged by the appellant in this appeal. 4. The point that arises for consideration in this appeal is as follows:- "Whether the judgment of the trial court convicting and sentencing the appellant for the offence under Section 498-A IPC suffers from any defect or illegality, capable of being interfered with in exercise of the appellate powers of this court?" 5. Advancing arguments on behalf of the appellant, Mr.M.G.Sankaran, learned counsel representing Mr.M.Ajmal Khan, learned counsel on record for the appellant, submitted that the judgment of the trial court convicting the appellant for the offence under Section 498-A and the order of punishment incorporated therein could not be sustained in law; that the trial court committed a grave error in convicting the appellant for an offence punishable under Section 498-A IPC while acquitting him of the offences punishable https://hcservices.ecourts.gov.in/hcservices/ under Section 304-B IPC and Section 4 of Dowry Prohibition Act; that the conviction recorded by the trial court convicting the appellant for an offence under Section 498-A was made merely on conjectures and surmises than on the evidence having the tendency to prove the charge beyond reasonable doubt; that the trial court erroneously interpreted the contents of Ex.D7 to use it against the appellant, whereas the same would clearly show that the appellant, in fact tried to dissuade his wife's mind from thoughts leading to frustration and dejection; that the court below failed to properly appreciate the fact that the inability to bear a child and the attitude of the mother of the deceased and not any harassment on the part of the appellant, which made the deceased to show interest in the institution of Sri Sai Babha of Puttaparthi; that the learned trial judge failed to note that the witnesses examined on the side of the prosecution, tried to implicate the mother of the appellant alone for harassment on the deceased and that when the court having come to the conclusion that the mother of the appellant was not guilty of any offence, should have held that the charge as against the appellant for the offence under Section 498-A also was not proved beyond reasonable doubt when the quantity and quality of evidence adduced against him are lesser and inferior than the same adduced against A2, the mother of the appellant. 6. The submissions made by Mr.N.Chandrasekaran, learned Special Public Prosecutor (for CBI cases) on behalf of the respondent police in answer to the above said submissions made by the learned counsel for the appellant were also heard and this court paid its anxious considerations to the same. The materials available on record were also perused. 7. The appellant as A1 and his mother as A2 were prosecuted in one and the same trial for offences punishable under Sections 498-A r/w 34 IPC, 304-B r/w 34 IPC and Section 4 of the Dowry Prohibition Act r/w Section 34 IPC. When the charge is framed under a penal provision r/w Section 34 of IPC, it amounts to an allegation that the criminal act was committed by all the persons accused of the said offence in furtherance of the common intention of all. All the three charges have been framed for specific offences under Section 498-A IPC, 304-B IPC and Section 4 of Dowry Prohibition Act to be read with Section 34 of IPC denoting that the acts constituting the said offences were committed by both the accused persons in furtherance of their common intention. What was their common intention? - has not been explicitly spelt out in each one of the charges. The first charge was framed to the effect that A1 and A2 demanded 25 sovereigns of gold jewels, a Maruti car and a cash of Rs.50,000/- as dowry and they committed cruelty and harassment on the deceased Uma Maheswari to get them as dowry. The second charge had been framed to the effect that on 30.04.1996 about 10.30 p.m Uma Maheswari committed suicide by hanging unable to bear the cruelty caused on her by the appellant (A1) and his mother (A2) and their act would amount to an act of dowry death, punishable under Section 304-B IPC and that the said offence was committed by the appellant (A1) and his mother (A2) in furtherance of the common intention. The third charge was framed to the effect that from January 1994 till the death of Uma Maheswari, the appellant (A1) and his mother (A2) demanded from Uma Maheswari gold jewels, diamond ear studs, nose screw, ring, silver vessels https://hcservices.ecourts.gov.in/hcservices/ weighing 4 Kgs, household articles worth Rs.35,000/-, 19 items of bronze vessels, cot, almirah, wearing apparels worth Rs.15,000/-, jewels weighing 25 sovereigns, Maruti car and a cash of Rs.50,000/- as dowry and thus they had committed the offence of demanding dowry punishable under Section 4 of the Dowry Prohibition Act r/w Section 34 IPC. 8. The appellant's mother was acquitted of all the three offences. The appellant (A1) also was acquitted of the offences punishable under Section 304-B IPC r/w 34 IPC and Section 4 of the Dowry Prohibition Act r/w Section 34 IPC in respect of which charge Nos.2 and 3 had been framed. He was convicted in respect of charge No.1 alone for the alleged offence punishable under Section 498-A IPC. When two persons were prosecuted in one and the same trial for an offence constituted by their acts committed in furtherance of a common intention, the acquittal of one of them shall have its own impact on the charge as against the other. In this case, though the appellant (A1) and his mother (A2) are alleged to have jointly committed the offence under Section 498-A IPC, after appreciation of evidence, the learned trial judge has chosen to acquit the mother of the appellant (A2) holding that the charge against her was not proved beyond reasonable doubt. Keeping the said fact in mind, the offence for which the appellant (A1) has been convicted, shall be considered. 9. P.W.4 - Dr.K.Rajagopal, his wife Krishnaveni (P.W.5), P.W.9 - Saikrishna, the parents of the deceased Uma Maheswari, namely P.W.11- Sathyanarayanan and P.W.12-Geetha Sathyanarayanan, P.W.13 - V.K.Narayanan @ Thatha, P.W.14 - Komalavalli (the grandmother of deceased Uma Maheswari), the brothers of deceased Uma Maheswari, namely P.W.15 - Senthil and P.W.16 - Sridhar were the witnesses examined on the side of the prosecution to prove the charge against the appellant. Apart from the oral evidence of above said witnesses, Exs.P1 to P43 were also perused in support of the prosecution case. The accused also marked Exs.D1 to D15 as defence documents even though no oral evidence was adduced on the side of the accused persons. Let us now consider the strength of the evidences adduced on the side of the prosecution in respect of charge No.1. 10. P.W.4 - Dr.K.Rajagopal and P.W.5 - Smt.Krishnaveni are husband and wife. They are close relatives of P.W.12-Geetha Sathyanarayanan. Geetha Sathyanarayanan is the maternal uncle's daughter of P.W.5. It is the evidence of the prosecution that P.Ws.4 and 5 were the persons who arranged for the marriage of the deceased with the appellant. They have spoken to the effect that, it was the mother of the appellant, namely A2-Indiraniammal who made all the demands before the marriage and after marriage. Nowhere in their evidence, they have stated that there was any demand made by the appellant (A1). In fact, the trial court even brushed aside their evidence against the mother of the appellant regarding the alleged demand of dowry prior to and subsequent to the date of marriage. That is why the court below has chosen to acquit the mother of the appellant, namely A2, of the offences punishable under Sections 4 of Dowry Prohibition Act and Section 304-B of IPC. No specific instance of cruelty has been cited by the above said witnesses either against the mother of the appellant, namely A2 or against the appellant (A1). No part of the testimonies of P.Ws.4 and 5 is capable of implicating https://hcservices.ecourts.gov.in/hcservices/ the appellant herein for committing the offence of cruelty punishable under Section 498-A. Therefore, their testimonies are to be set apart as not useful for the prosecution to prove the charge of cruelty punishable under Section 498-A against the appellant (A1). 11. P.W.9 - Saikrishna is a person, who allegedly attended the betrothal function of Uma Maheswari. It is his evidence that during the betrothal ceremony, it was agreed between the parties to the marriage that the parents of deceased Uma Maheswari had to give Uma Maheswari 50 sovereigns of gold jewels and one pair of diamond ear studs, one diamond nose screw and one diamond ring and that at the time of marriage, the parents of Uma Maheswari gave those jewels as agreed to. It is not the evidence of P.Ws.11 and 12, the parents of Uma Maheswari, nor was it the evidence of P.W.15 - Senthil and P.W.16 - Sridhar, the brothers of the deceased Uma Maheswari, that there was a demand at the time of betrothal that the parents would give a pair of diamond ear studs, a diamond nose screw and a diamond ring to Uma Maheswari. It was also not the evidence of P.Ws.4 and 5. However, P.W.9 alone has chosen to state that such a demand was made at the time of betrothal. The same seems to be an improvement made in the light of the list of jewels handed over by the appellant to the parents of deceased Uma Maheswari admitting to be the jewels given to her by her parents as Sreedhana at the time of marriage. The list Ex.P20 includes a diamond ring presented to the bridegroom, namely the appellant at the time of marriage. In order to cover that also, evidence seems to have been adduced through P.W.9 to that effect. 12. It is quite unnatural for a newly wedded woman to demand for setting up a separate residence for herself and her husband breaking away from the parents' family of her husband, that too when her mother-in-law is a widow and an unmarried sister-in-law is also there. But, curiously, the evidence of P.W.9 is to the effect that the Mangal Sutra ceremony was held on the 10th day of the marriage and that on that day itself Uma Maheswari complained that her mother-in- law Indraniammal (A2) insisted of supplying a Maruti car, 25 sovereigns of gold jewels and Rs.50,000/- cash to her for allowing Uma Maheswari to set up a separate residence for her and her husband. It is the evidence of no other witness that such demand was made by the appellant (A1). But, it is the evidence of P.W.9 that when Uma Maheswari made a complaint regarding the above said demand made by her mother-in-law Indraniammal, the appellant kept mum and subsequently on the same day he refused to take food to be pacified and persuaded to take food. Even assuming that there was such a complaint made by Uma Maheswari, it is not clear from the evidence of P.W.9, whether the appellant's refusal to take food was in protest against the non-compliance with the demand or against the baseless allegation made against his mother. Even though, P.W.9 would state that subsequent to the demand for the supply of Maruti car and other things for setting up a separate residence for the couple, it is the fact admitted by the prosecution witnesses examined in this regard that the articles demanded were not given by the parents of the deceased. However, it is admitted that the couple had set up a separate residence for themselves in the first floor portion of the house of Indraniammal (A2). Though P.W.9 would state that on the 10th day of marriage, Mangal Sutra ceremony was held and on that occasion, Uma Maheswari revealed the fact of the demand made by Indraniammal https://hcservices.ecourts.gov.in/hcservices/ (A2), he was not in a position to say what was the time gap between the date of Mangal Sutra and the date of setting up separate residence for the couple. It is also his admission during cross- examination that he had no personal knowledge as to whether Uma Maheswari was happy or not after she complained about the demand of Maruti car, etc. The evidence of P.W.9 seems to be the testimony of an interested witness, as he has clearly admitted that he is a friend of family of Sathyanarayanan and Geetha Sathyanarayanan (parents of Uma Maheswari). Before ever accepting his evidence, the same must be put to the test of careful scrutiny. 13. It is his evidence that on hearing the news of the death of Uma Maheswari, he (P.W.9) along with Geetha Sathyanarayanan and her husband Sathyanarayanan and yet another Geetha came in a car to Pondicherry and all of them straight away went to Ariankuppam police station. This particular part of the evidence of P.W.9 is quite contra to the evidence of P.Ws.11 and 12. It is the evidence of P.W.11 - Sathyanarayanan that on hearing the news of death of Uma Maheswari, P.W.12 - Geetha Sathyanarayanan, their sons P.W.15 - Senthil and P.W.16 - Sridhar, one Andiappan and P.W.9 - Saikrishna alone went in an Ambassador car to Ariankuppam, whereas P.W.11 - Sathyanarayanan proceeded towards Pondicherry by bus. It is also the evidence P.W.12 that she went in a car to Ariankuppam whereas her husband P.W.11 - Sathyanarayanan went there by bus. The same will greatly impair the demeanour of P.W.9 and also the reliability of his evidence. There is contradiction in the evidence regarding when such a demand for supply of a Maruti car, 25 sovereigns of gold and Rs.50,000/- was made. According to P.W.9's evidence, it was made within 10 days after