IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14 .07.2011 C O R A M THE HONOURABLE MS.JUSTICE R.MALA CRIMINAL REVISION PETITION No.771 OF 2006 Mahalakshmi ...Petitioner/Defacto Complainant Vs. 1.State of Tamilnadu rep.by Deputy Superintendent of Police, Maduranthagam. Complainant 2.Muthukuberan 3.Kasthuri 4.Kamalabai ...Respondents/Accused 1 to 3 Prayer: Criminal Revision Petition filed under Section397 and 401 of the Code of Criminal Procedure, to set aside the judgment dated 08.03.2006 made in S.C.No.287 of 2005 on the file of the Additional District and Sessions Judge/Fast Track Court No.1, Chengalpet. For Petitioners : Mr.N.S.Sivakumar, For Respondents : Mr.C.Emalias, Ms.M.F.Shabana, Government Advocates (Crl. Side) for R1 Mr.R.Rajasekaran for R2 to R4 ORDER This Revision has been preferred against the disposal of S.C.No.287 of 2005 on the file of the Additional District and Sessions Judge, Fast Track Court No.1, Chengalpet, acquitting the respondents from the charges levelled against him under Section 302 and 498(A) I.P.C. and section 4 of Dowry Prohibition Act. 2.The case of the prosecution is as follows: The marriage between the deceased Saraswathi and 1st accused/2nd respondent was performed on 11.07.2002. The 2nd accused is the mother of the 1st accused and the 3rd accused is the grand mother of the 1st accused. At the time of marriage, 40 sovereign of jewels for the deceased and 10 sovereign for A1 and Rs.10000/- for dress and 2 vacant sites was demanded by A1, which was accepted by the parents of the deceased saraswathi. At the time of Marriage, 30 sovereign jewels for Saraswathi and 10 sovereign for A1 and Rs.5,000/- only have been given to the 1st https://hcservices.ecourts.gov.in/hcservices/ accused. From the date of marriage, at the instigation of A2 and A3, the 1st accused demanded the balance 10 sovereign jewels and Rs.5,000/- and two plots. Since she has not met out the demand, at the instigation of A2 and A3, A1 has tortured her by both mentally and physically. she was given medicine to prevent pregnancy. 3.On 30.12.2002, at 1'0 Clock, she was murdered by the 1st accused. So, a case has been registered against A1 to A3 under Sections 498(A) and 304(B) I.P.C. P.W.1 is the mother of the deceased. P.W.2 is the sister of the deceased. P.W.3 is the brother-in-law of the deceased and husband of P.W.2. P.W.1 and P.W.2 have deposed about the marriage between the 1st accused and the deceased Saraswathi. 4.At the time of marriage, they have given 30 sovereigns jewels to the deceased and 10 sovereign to A1 and Rs.15,000/- for purchase of Cot and Rs.10,000/- for purchase of Almirah and 4 Kgs of silver vessels. After the marriage, the deceased Saraswathi was ill-treated by the accused by stating that she is illiterate and she is not well versed in the household duties. Whenever, she is facing the mental and physical cruelty, she intimated the same to P.W.1 through phone. When P.W.1 received the telephone message, she visited the accused house. At that time, it was intimated that the deceased Saraswathi does not know even to draw kolam. They have also intimated that on weighing 40 sovereign jewels, there is a deficit of one sovereign and for that they demanded 1/2 ground plot. At that time P.W.1 replied that since she is having two daughters, she cannot settle the plot to the deceased Saraswathi and she advised her daughter to adjust with them. All these things happened within a week from the date of marriage. 5.After 20 days, it was intimated by the deceased Saraswathi that the accused had stated that the bangles are not in accordance with accused taste. Then P.W.1 handed over Rs.57,000/- to his daughter to purchase 5 sovereign bangle. The accused collected Rs.820/- as interest from P.W.1. 6.After one month, she has gone to Saraswathi's house after receiving her phone call. Then, she taken her daughter to her house for 10 days. She has given proper advice to her and thus he dropped the deceased Saraswathi in her in-law's house. Then, a Panchayat has been convened and proper advice has been given to A1 also. After one week, P.W.1 received a phone call from Saraswathi. Then she rushed to Saraswathi's house, where Saraswathi was assaulted by A1 to A3, in her presence. At that time, the elder brother and sister-in-law of the 1st accused stated they will take care of her daughter. Saraswathi was intimated the fact that if she left her there, they will murder her. Hence, she has taken her daughter to P.W.2's house, where his another daughter is residing. After one week, P.W.1 has taken the deceased to her house. After one week thereafter, the deceased was taken her matrimonial home. Then she was taken to hospital and they purchased some medicine and when they compelled to take the medicine, the deceased refused to https://hcservices.ecourts.gov.in/hcservices/ take medicine and intimated the same to P.W.1. Then P.Ws.1 to 3 gone there and they came to know that the accused were assaulted the deceased since she has not taken medicine. Then, the matter was referred to the senior paternal uncle of the 1st accused's. After 15 days, 15 persons belong to the accused family came to Kalpakkam and requested them to send the deceased Saraswathi with them. After pressurising, at 11'0 Clock, they sent Saraswathi along with them even though Saraswathi refused to go along with them. After reaching the house of the accused, the deceased telephoned her and intimated that they demanded jewels and assaulted her. On 29.12.2002, one Raghupathi Reddiyar has telephoned to P.W.3 and stated that Swarawathi is missing. When she telephone to the house of accused, they informed that she fell down into well and died. When they rushed the accused house, they witnessed that the deceased was laid down in a bench. But, the accused were not in the place. 7.P.W.1 made an enquiry with Village President. Then, they gone to police station and gave a complaint Ex.P1. P.W.17 received the complaint at 11.00 a.m. and registered a case in crime No.957 of 2002 under Section 498 (A) 304(B) I.P.C. and prepared F.I.R. Ex.P7. 8.He despatched the same to R.D.O., Mathuranthagam and sent a copy to D.S.P. Mathuranthagam. P.W.16 Ramakrishnan, R.D.O. received the copy of F.I.R. on 6.00 p.m. and he rushed to place of occurrence and conducted inquest on the body of the deceased in the presence of the witnesses and prepared an inquest report Ex.P5. Thereafter, the F.I.R. was altered into Section 302 I.P.C. and the altered F.I.R. Ex.P8 was sent to the concerned jurisdictional magistrate. He examined P.Ws.1 to 3 and recorded their statements. Since he come to the conclusion that the occurrence has been taken place for dowry demand, he sent a report Ex.P6 to P.W.1 to take appropriate steps. After inquest, he sent the body for autopsy. P.W.14 Dr.Murugesan on 31.12.2000 at 11.00 a.m conducted Autopsy along with Dr.Mathikaran and they pointed out the external and internal injuries and gave post-mortem certificate Ex.P3. He also sent the vicera for chemical examination. They have conducted chemical examination and the chemical report Ex.P6 would reveal that no poison has been detected in the viscera. 9.P.W.18 Tmt.Satya Priya, D.S.P., Mathuranthagam has taken up the matter for investigation on 30.12.2002 at 11.30 hours. She gone to the place of occurrence and investigated the place of occurrence and prepared an observation mahazer Ex.P2 in the presence of P.W.9 and one Lakshmi and draw the rough sketch Ex.P8 and examined the witnesses and recorded their statements. On 01.01.2003 at 10.00 a.m,., she arrested the 1st accused. At that time, he voluntarily gave a confession, which was recorded in the presence of P.Ws.9 and one Lakshmi. On the same day, she arrested A2and A3 and sent them for judicial custody. After examination the doctors and completion of the investigation, she filed the charge sheet under Section 498(A) and 302 read with 109 I.P.C and Section 4 of Dowry Prohibition Act. https://hcservices.ecourts.gov.in/hcservices/ 10.The learned Judicial Magistrate, after following the procedure, committed the case to the Sessions Court. The District and Sessions Judge, F.T.C.No.1, Chengalpet framed charges against the accused and the accused pleaded not guilty. Considering the oral evidence of P.Ws. 1 to 18 and the documentary evidence of Ex.P1 to 9, the learned Sessions Judge acquitted the accused stating that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. 11.Challenging the judgment of acquittal, P.W.1 preferred this revision. The state does not prefer any appeal against the judgment of acquittal. 12.The learned counsel appearing for the petitioner would submit that the trial Court has committed an error, while appreciating the evidence of Doctor and postmortem certificate. He further submits that the Doctor has specifically stated that the death is not due to drowning, but the learned trial Judge has not considered this aspect properly. 13.He further submitted that the trial Court has not assigned any reason for discarding the evidence of P.Ws.1 and 2. P.W.1's evidence is clearly proved that the accused family has gone to P.W.1's house in Kalpakkam and compromise the matter and then only, they taken the deceased to matrimonial home. After the deceased reached her matrimonial home, she intimated the fact to her mother that her husband and her in-laws are ill-treating her demanding jewels, which was kept in Kalpakkam. for that, P.W.1 has intimated that she will handover the same next day. Thereafter, she has received the information at 11.00 p.m. that her daughter is missing. Then, she rushed to the place, where, she came to know that the body of the deceased has been laid in the bench and no accused were found place in that place. At this juncture, the trial Court ought to have considered the evidence of doctor, who gave a final opinion after conducting post-mortem that the death is not due to drowning. But, the trial Court has not considered the aspect in a proper perspective. To substantiate the same, he relied on the decisions of various High Courts. 14.The evidence of P.Ws.1 to 4 was corroborated with each other in respect of demand of dowry and consequential harassment met out by the deceased till her death. The trial Court has given a finding that there are discrepancies in the F.I.R. F.I.R. is not an encyclopaedia. It is true that there is minor discrepancy between the evidence and it will not affect the case of prosecution. The delay in despatching the records to the Court is also not a fatal. Hence, he prayed for setting aside the order of acquittal. 15.The learned counsel appearing for the 1st respondent would submit that the State has not preferred any appeal. It is a revision preferred by the mother of the deceased. The powers of revision Court is very limited. If there is any irregularity and https://hcservices.ecourts.gov.in/hcservices/ illegality, then only, the Court is empowered to remit the matter for re-trial. Accordingly, the non appreciation of evidence and misappropriation of evidence of the prosecution witness is not a ground for setting aside the judgment of acquittal and ordering for re-trial. The Trial Court has come to the correct conclusion that the death of the deceased is due to drowning. Since the body has been found place in the well, the trial Court has considered the medical evidence in proper perspective and came to the correct conclusion. Thus, he prayed for the dismissal of the revision. To substantiate his argument, he relied upon the decisions of the Apex Court. 16.The marriage between A1 and the deceased Saraswathi was performed on 11.07.2002 and the deceased Saraswathi died on suspicious circumstances on 30.12.2002 at the early hours. The cause for the death of the deceased is disputed. Even though, P.W.14 doctor, who did postmortem has opined that the death of the deceased is only due to asphyxia due to smothering. But, his categorical statement is that the death is not due to drowning. At this juncture, the learned counsel appearing for the 1st respondent would submit that the revision Court has no power to re-appreciate the evidence. He would further submit that the power of the revisional Court is very limited. To substantiate the same, he relied upon the decision of the Apex Court Ram Briksh Singh and others Vs. Ambika Yadav and another reported in 2004(3) CTC 586, wherein, the Apex Court has held the powers of revisional Court in para 3 and 4 and the same is extracted herein: “3.T he principles on which Revisional Court can set aside a judgment and order of acquittal passed in favour of the accused are well settled by catena of judgments. The difficulty, however, arises at times about the application of the said principles. It is true that there is a statutory prohibition contained in sub-section (3) of Section 401 of Criminal Procedure Code from converting a finding of acquittal into one of conviction and what is prohibited cannot be done indirectly as well. The question, however, is has High Court indirectly done what is prohibited. 4.Sections 397 to 401 of the Code are group of sections conferring higher and superior Courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a Court of appeal but at the same time, it is the duty https://hcservices.ecourts.gov.in/hcservices/ of the Court to correct manifest illegality resulting in gross miscarriage of justice.” They also relied upon the decision reported in AIR 1951 SC 196 (D.Stephens Vs. Nosibolla), and AIR 1962 SC 1788 (K.Chinnaswamy Reddy Vs. State Andhra Pradesh and another) 17.In AIR 1951 SC 196 (D.Stephens Vs. Nosibolla) the Apex Court has held that if any material evidence is overlooked, retrial to be ordered. So, considering the facts and circumstances of the case, this Court has to consider the dictum laid down by the Apex Court and decide the matter accordingly. 18.Admittedly, the present case is based on circumstantial evidence. It is true, the guilty of the each hypothesis of genesis has to be proved by the prosecution without any gap in a chain. The marriage between A1 and the deceased was performed on 11.07.2002. Admittedly, she was taken to matrimonial home on 29.12.2002 after panchayat convened in Kalpakkam in the house of P.W.1, the mother of the deceased. In the midnight, an information has been received by P.W.1 that her daughter was missing . Then, the next day morning only, she was intimated that her daughter committed suicide by falling into well. After doctor has given opinion that the deceased would appear to have died of asphyxia due to smothering with multiple injuries with postmortem drowning. In such circumstances, as per the dictum laid down in Satya Narayan Tiwari and another Vs. State of Uttar Pradesh reported in 2010 AIR SCW 7144, the husband has to give explanation as to how the occurrence has been taken place. 19.The first point raised by the learned counsel appearing for the petitioner is that on the date 29.12.2002, the deceased was taken to matrimonial home after panchayat convened in Kalpakkam. After reached the matrimonial home, the deceased intimated the fact to her mother that she was ill-treated by her husband and other in-laws in respect of not wearing jewels. P.W.1 was replied that next day, she would handover the same. But, the next day morning at 5'0 clock, she received the information that her daughter was missing and thereafter, she was intimated that her daughter fell down in a well and died and her body was laid down in a bench. The doctor, who did autopsy has opined that the deceased would appear to have died of asphyxia due to smothering with multiple injuries with postmortem drowning. But, the learned Trial Judge has not considered the said aspect and came to a conclusion that the death was only due to drowning. In his judgment, in para 32, he came to the conclusion that the prosecution has failed to prove that the death is due to the injuries mentioned in Ex.P3 as mentioned by P.W.14 doctor. At this juncture, it is appropriate to incorporate the injuries mentioned in the post-mortem certificate, which is extracted hereunder: “On the moderately nourished body of an adult female, cornea Hazy, pupils dilated, conjustivae consted, sub conjunctival Haemorrhages seen on both https://hcservices.ecourts.gov.in/hcservices/ eyes. Finger and toe nails are cyanosed. Mucos membranes of mouth, lips and tongue were cyanosed. Blleding from the mouth and nostrils seen. The clothes over body were wet. The palms and soles were pale, white, bleached, wrinkle and saddened appearance. The following Antemortem injuries with surroundings contusions abrasions: 1.Reddish Brown Colour – 1x1 cm on the tip of nose. 2.1x1 cm on the left nostril. 3.1x1 cm on the inner side of the mucous surface of the left nostril. 4.1x0.5cm on the right side of the Nasal septum. 5.1 x 1cm on the right side of the upper lip below the right nostril. 6.1x1 cm on the left side of the upper lip. 7.1x0.5 cm on the mucous membrane of left and upper lip above 2nd Incisor Teeth. 8.1x0.5 cm on the mucous membranes on left side of upper lip above the canine teeth. 9.1x0.5 cm on the Inner aspect side of right side of lower lip. 10.1x0.5 cm on the Inner aspect of left side lower lip in canine teeth on dissection, the underlying, tissue were bruised 11.2x1 cm on the outer and lower part of the right kidney. 12.1x1 cm on the front and lower portion left upper arm on the underlying tissues were bruised. CONTUSIONS 1.3X2X1 cm on the inner aspect of upper part of right thigh 2.6X2X1 cm on the front and lower portion left thigh 3.5x2x1 cm on the front of front upper portion in right fore arm. 4.6x2x1 cm on the front and outer aspect of left for arm, o/o the underlying tissues were extravasated. POSTMORTEM INJURIES 1.10x3 cm postmortem abrasion on the lower portion right leg 2 cm above the right ankle joint. 2.An 1abvious 1 x 3 cm post mortem abrasion on the lower portion of the left leg just above the ankle joint. OTHER FINDINGS: Brain – Surface vessels congested and full. on c/s congested and petechial Haemorrhages. Hyoid bone Intact. https://hcservices.ecourts.gov.in/hcservices/ Larynx and Trachea - Mucosa congested, sub mucosa. petechial. All vital mid lines structures of the neck ware intact. Lungs : Normal size. Tardien's spots – suppleural petechial Haemorrhages on the costosternal and basal surfaces of both lungs on cut section congestine oedematous on both sides. Heart-Normal size. Great vessels normal. coronary vessels normal. coronary ostiae – both – normal All chambers contained fluid blood. Stomach – contained 100 grams of partly digestive cooked food materials without any characteristic smell. Mucosa congested submucosal petechiel Haemorrhage. Small Intestine contained yellowish chyme without any characteristic smell. Mucosa congested – Large Intestine – distended with gas, liver, spleen and kidneys c/s congested. Bladder empty. Uterus normal size. Cavity Empty. Vertebral column and spinal cord intact and all other internal organs on cut section found congested. Viscera preserved for toxological analysis. OPINION : The deceased would appear to have died of asphyxia due to smothering with multiple injuries with postmortem drowning. 20.P.W.14 doctor was cross examined in lengthy. He specifically denied the suggestion that the death is due to drowning. The relevant portion of P.W.14 is extracted hereunder: “I deny your suggestion that my opinion in this case that the deceased would appear to have died of asphyxia due to smothering with multiple injuries with postmortem drowning is incorrect and not based on any reliable scientific date.” The Antemortem injuries mentioned in Ex.P3 given by the doctor P.W.14 has shown that the injuries were caused by committing the act of smothering by closing both nostrils and mouth by using much force. But, that factum has not been considered by the trial Court. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel appearing for the petitioner in Sahebrao Mohan Berad Vs. State of Maharastra reported in CDJ 2011 SC 271, wherein, the Apex Court has held that it is needless to say that the doctor, who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the Court cannot substitute its opinion for that of the doctor. In this case, the doctor has not found any frothy discharge. But, he opined before the court that the deceased would appear to have died of asphyxia due to smothering with multiple injuries with postmortem drowning. In https://hcservices.ecourts.gov.in/hcservices/ such circumstances, I am of the view that the doctor alone is a competent person to give the cause of death. 21.He also relied upon the decision in Manu Sao Vs. State of Bihar reported in 2010(12) SCC 310, wherein para 24, the Apex Court has held as follows: “The accused has admitted that the deceased was his wife and was living with him in the cabin. On the basis of the record, the High Court has also noticed the fact that the deceased had separated from her earlier husband and was living with the accused who was also staying away from his family. The villagers had objected to the accused living with the deceased in that manner. In these circumstances, the onus to explain the cause of death of the deceased was upon the husband. He did offer an explanation that she had committed suicide by burning herself but this explanation has been disbelieved. Another very material factor is that as per his own statement when he noticed that the deceased was still alive and her burnt body was lying just outside the cabin in the chilli plantation, he had taken the help of Bhola Babu. The name of this person he neither referred to in his statement under Section 313 Cer.P.C. nor he examined this person as a witness. In the normal course, thus, it will have to be presumed that if this witness was produced and examined in court, he might have spoken the truth which was not suitable or favourable to the accused. For reasons best known and which remained explained, this witness was not examined though in his statement under Section 313 Cr.P.C. in answer to the last question he had stated that he was innocent and would give in writing whatever he wanted to say. Despite this, no defence was led by the appellant. 22.In the present case also, since the deceased was living with the accused, the onus to explain the cause of death of deceased was upon the husband/1st accused. But, he has filed a written statement at the time of questioning under Section 313 Cr.P.C., wherein, he has stated that since his wife was conceived, she was taken to hospital, where she was given medicine for abortion. He has further stated that on 29.12.2002, he was taken his wife from P.W.1's house and on that date, she was weeping and stating that the pregnancy has been aborted. He further stated that he came to know at 5.00 a.m. that wife was not found. Thereafter, he came to know that she has committed suicide by falling down in to the well. As already stated, as per the evidence of P.W.14, the death is not due to drowning. In such circumstances, the explanation offered by A1 is untrue and unbelievable. All the accused invariably stated that she has died due to drowning. But, while perusing the post-mortem certificate given by the doctor, the deceased would appear to have died of https://hcservices.ecourts.gov.in/hcservices/ asphyxia due to smothering with multiple injuries with postmortem drowning. 23.Considering the postmortem certificate and the evidence of the doctor, who did postmortem, I am of the view that the explanation offered by the husband/A1 and other in-laws are false and the same are not reliable. So, the antemortem injuries were caused before the death of the victim and then only, she was