In the High Court of Judicature at Madras Dated: 06/03/2004 Coram The Honourable Mrs.Justice R.BANUMATHI Criminal Appeal No. 635 of 1996 and Criminal Revision Petition No.290 of 1996 C.A.No.635 of 1996 The State represented by Station House Officer, Orleanpet Police Station, Pondicherry. ..Appellant -Vs- Udayakumar ..Respondent/Accused. Crl.R.C.No.290 of 1996: Ignatious Francis Periera ..Petitioner / P.W.1 in S.C.46/1993. ..vs.. 1. Udayakumar ..Respondent No.1/Accused 2. State represented by Inspector of Police, Orleanpet Police Station, Pondicherry. ..Respondent No.2 Criminal Appeal and Criminal Revision Petition filed against the judgment dated 22.12.1995 made in S.C.No.46 of 1993 on the file of Principal Sessions Judge, Pondicherry. !For Appellant : Mr.Suryaprakasam, Public Prosecutor, Pondicherry in Crl.A.635/1996 ^For Petitioner : Mr.C.D.Johnson for Revision Petitioner in Crl.R.C.No.290/1996 For Respondent : Mr.K.Sridharan for Respondent in C.A.635/1996. :C O M M O N J U D G M E N T Crl.Appeal No. 635/1996: State has come forward with this Appeal against the Order of Acquittal in S.C.46/1993 on the file of Principal Sessions Judge, Pondicherry. By the Judgment dated 22.12.1995, the learned Principal Sessions Judge, Pondicherry has acquitted the accused of the offences under Sections 498-A and 304-B IPC. Crl.Revision Case No. 290/1996: Father of deceased - P.W.1 Ignatious Francis Periera has filed this Revision aggrieved against the Order of Acquittal by the trial court acquitting the accused. 2. Common points for determination arise in both Appeal and Revision and hence both were heard together and disposed of by this Common Judgment. 3. For better appreciation of the contentious points urged, we may firstly refer to the common grounds:Deceased Lucy Periera @ Santhakumari (hereinafter referred to as Lucy) and Prosecution side witnesses are related as noted below: P.W.1 Ignatious Francis Periera | | -------------------------------------------| | | P.W.2 P.W.8 Lucy Periera (Marshal Periera) (Joe Periera) @ =P.W.5 Santhakumari (Ivy Periera) The accused is a Native of T.R.Pattinam, Karaikal Region and the deceased hailed from Karaikal. P.W.1 - father of Lucy was employed in Railways and the mother of Lucy was employed as Head Nurse in Karaikal. So, the family of P.W.1 lived in Karaikal. The family of the accused is of Hindu Tamil origin while the family of P.W.1 is of Keralist Christian origin. So, basically there is difference in religion, custom and culture between the two families of the accused and the deceased. The accused was a classmate of P.W.2 - Marshal Periera in PUC in Arignar Anna College and thus they were friends. Lucy did her schooling and Plus Two at Karaikal. The accused did his M.B.B.S., Course at JIPMER ending in the year 1986. Lucy was a student with P.W.4 - Sumathi in B.Sc., M.L.T., Course in JIPMER between the period 1983 - 1 986. 4. Marriage - 05.06.1988: The accused and the deceased developed love and friendship and clandestinely they married in 1986. However, according to the Hindu custom and rites, the marriage of the accused and the deceased was celebrated in Mariamman Temple at Veerampattinam on 05.06.1986. P.W.1 - father did not attend the marriage. But he sent his son - P.W.8 - Joe Periera and another son to attend the marriage of Lucy and sent gift of Rs.1,001/=. The marriage was also not to the liking of the family of the accused. So after the marriage, the couple were living separately in Mullai Nagar, Pondicherry. 5. Thus marriage is not an arranged marriage; it was a love marriage mutually arranged by the accused and the deceased themselves. Since the marriage was a love marriage much to the disliking of both the families, there would not have been possibility of demand of dowry in connection with marriage. 6. Demand of Jewels in October - November 1988:- Case of Prosecution is that after the marriage, the accused and deceased visited Karaikal in November 1998 for Deepavali. At that time, deceased asked for some jewels in the presence of the accused. Deceased wanted her father - P.W.1 to present the jewels at the time of Deepavali. When the couple came for Thalai Deepavali, P.W.1 purchased four gold bangles weighing 4 sovereigns, one neck lace weighing 2 sovereigns and one gold ring weighing about 4 grams and presented to deceased Lucy before Deepavali in the presence of the accused and his relatives. 7. Demand of Motor Cycle in December 1989; Deceased and accused came to the house of P.W.1 in 1989 Christmas. The accused wanted a sum of Rs.10,000/= to enable him to purchase a Motor Cycle. During Pongal 1990, P.W.1 paid Rs.10,000/= to the accused, which he raised by way of loan from Indian Bank, Karaikal Branch. From out of which, the accused purchased the Bullet Motor Cycle. 8. Further Demand of Jewels: In February 1990, both the accused and the deceased came to the house of P.W.1. Deceased Lucy told P.W.1 in the presence of the accused that the accused is insisting/under compulsion, to obtain some more jewels to attend the marriages and functions since he happened to be the doctor. P.W.1 purchased four bangles weighing 4 sovereigns and he gave the accused a week later. 9. Demand of Rs.30,000/= to purchase a plot: In August 1990, both the accused and the deceased came to the house of P.W.1 and demanded Rs.30,000/= in order to purchase a plot worth about Rs.50,000/=. P. W.1 promised to arrange for the money. Since Rs.30,000/= would not be sufficient to pay the sale consideration and registration charges, the accused took the jewels of deceased Lucy presented by P.W.1 and accompanied by P.w.8 - Joe Periera, went to Rathna Jewellery, Karaikal to sell the same to raise the funds. On knowing about the same, P.W.1 rushed to Rathna Jewellery and persuaded the accused not to sell the jewels. In September 1990, P.W.1 withdrew Rs.25,000/= from the Fixed Deposit in Indian Bank, Karaikal and adding the same with Rs.5,000 /=, he gave Rs.30,000/= to the accused through P.W.8 - Joe Periera. Later, P.W.1 was informed that from out of that amount, the accused had purchased a plot in 100 Feet Road. 10. Demand of fridge: In August 1991, both of them came to the house and Lucy told P.W.1 that the accused is insisting that she should get a fridge from him. Two days later, P.W.1 pledged the jewels of his wife and availed Rs.11,000/= as loan from Indian Overseas Bank, Velankanni and purchased two Godrej fridges and presented one to Lucy and another to his son P.W.2 - Marshal Periera. 11. Demand of Rs.50,000/=: In December 1991, deceased Lucy told P.W.1 that the accused is insisting to obtain Rs.50,000/= from P.W.1 to construct a house in the plot bought at 100 Feet Road. The accused was also then present. P.W.1 expressed the difficulties in raising money. Since P.W.1 rebuked the accused and the deceased in demanding more money, thereafter the accused did not visit the house of P.W.1. 12. Sometime prior to the occurrence, Lucy visited the house of P. W.1 and she appeared sad. When P.W.1 asked Lucy, the deceased told him that the accused had illicit relationship with one Nurse by name Jeanee D' Arc Mary of Villianoor Hospital. Deceased Lucy told P.W.1 that she saw the accused and the said Jeanee D'Arc Mary in a compromising position in the quarters of the accused at Villianoor Hospital. P.W.1 advised the deceased not to quarrel with the accused and to get along with him. 13. Occurrence - Suicide by hanging: The couple were living separately in Mullai Nagar, Pondicherry. On 22.05.1992, the accused left for duty. Between 5.00 PM - 22.05.1992 and 08.30 AM - 23.05.1992 the deceased committed suicide by hanging inside the house. The door was locked inside when the accused returned from the duty. The death is unnatural one. P.W.21 - Dr.V.Srinivasan conducted post mortem. P.W.21 gave his provisional opinion that Lucy died of Asphyxia due to hanging. Ex.P-23 is the final opinion issued by the doctor that death of Lucy was due to hanging. 14. Registration of case for Suspicious death: The accused lodged Ex.P.18 - Complaint to Orleanpet Police Station stating that his wife was found dead when he returned from duty on 23.05.1992. Since the death was within seven years of marriage, case of Suspicious Death was registered in Crime No.153/1992 of Orleanpet Police Station under Section 174 of Crl.P.C. The First Information Report - Ex.P-19 was sent to the Tahsildar - P.W.17 for inquest. P.W.17 - Tahsildar received copy of the First Information Report and held inquest. Ex.P-7 is the Inquest Report. After the initial inquest, P.W.17 has concluded that the death was due to suicide by hanging out of frustration since Lucy was not having the child. On 25.05.1992, P.W.2 - Marshal Periera sent Ex.P.4 - Compliant expressing suspicion and foul play in the death of his sister - deceased Lucy. Upon receipt of that Complaint, P.W.17 sent his report Ex.P-11 to the Orleanpet Police to further investigate. Thus the case which led to the present Appeal. 15. Alteration of the case: Ex.P.11 - Report of the Tahsildar was received through Superintendent of Police (North), Pondicherry by P. W.20 - Sub Inspector of Police, Orleanpet. On that basis, the case was altered into under Sections 304-B, 498-A IPC under Ex.P.20 - First Information Report on 09.07.1992. On 10.07.1992, the case file was handed over to Superintendent of Police (North), Pondicherry for further investigation. Witnesses were examined by him. 16. Arrest of the accused:- On the instructions of Superintendent of Police, P.W.19 - Sub Inspector of Police arrested the accused on 07.08.1992. P.W.22 - Investigating Officer interrogated the accused. As per the direction of Investigating Off - Superintendent of Police, the accused was remanded to judicial custody through P.W.20. 17. Upon completion of investigation, charge sheet was filed against the accused on 18.01.1993 for Dowry Death and Demand of Dowry and cruelty under Sections 304-B and 498-A IPC. 18. To substantiate the charges against the accused, Prosecution has examined P.Ws.1 to 22. Exs.P-1 to P-24 are marked. M.Os.1 to 4 were remanded to Court. When the accused was questioned under Section 31 3 of Crl.P.C., he denied ill-treatment and dowry demand. He filed a statement in writing stating that he had purchased the plot by availing loan from the Cooperative Society. To substantiate his defence, the accused produced four documents. 19. Upon consideration of the evidence and the defence, the learned Sessions Judge found the accused not guilty on the following findings; (i) the marriage between the accused and the deceased being a love marriage. Since the accused did not have any help from his parents, he would have naturally approached his parents-in-laws for help to lead a comfortable life with the deceased; (ii) presentation of jewels, Rs.40,000/= in cash and a purchase of fridge were only voluntary by P.W.1 - father of the deceased out of his love and affection towards his daughter and to help his daughter to live amicably with her husband / the accused. No proximity between the time of presentation of jewels and cash and the death; (iii) any occasional beating is only normal in matrimonial life which would not amount to dowry harassment or cruelty within the meaning of Section 498 A IPC; (iv) the Prosecution witnesses have the tendency to improve their version with additions and improvements and are highly interested in securing the conviction for the accused. Interlia elaborately going through the allegations of foul play made by P.W.2 - Marshal Periera in his Complaint (Ex.P-4) and referring to the medical evidence and opinion of Tahsildar - P.W.17, the learned Sessions Judge concluded that it is a case of suicide and not a case of dowry death. On the above findings, the learned Sessions Judge acquitted the accused of the offences under dowry harassment and dowry death. 20. Aggrieved over the same, the State has preferred the Appeal and P.W.1 - father of deceased Lucy has filed the Criminal Revision case. 21. C.A.No.635/1996:- Assailing the findings, the learned Government Advocate, Pondicherry has submitted that sufficient materials are forthcoming from the evidence of P.W.1 - father of the deceased and P.Ws.2 and 8 - brothers of the deceased for dowry harassment and cruelty and the trial court erred in brushing aside the same and finding that demand of dowry and harassment is not proved. 22. Drawing the attention of the court to the evidence of P.W.13, a co-employee of the deceased, it is submitted that the ill-treatment is well proved by the evidence of P.W.13 and by the evidence of P.W.3 and the trial court erred in lightly brushing aside the same. Laying emphasis upon Exs.P-1 to P-4 coupled with the evidence of P.Ws.1, 2 and 8, the learned Government Advocate submitted that the same would conclusively prove the demand of dowry. It is further submitted that the trial court committed serious and substantial error in not appreciating the overwhelming evidence and the findings are unreasonable and perverse, which need to be reversed. Further placing reliance upon 2003 SCC (Crl.) 271, the learned Government Advocate submitted that though the Court has acquitted the accused under Sections 498-A and 304-B IPC, the trial court ought to have alternatively convicted the accused for abetment to commit suicide under Section 306 IPC. 23. Crl.R.C.290/1996:- Adopting the arguments of the Government Advocate, Pondicherry, the learned counsel appearing for the Revision Petitioner / P.W.1 - Ignatious Francis Periera submitted that the findings and reasonings of the trial court are erroneous, which need to be reversed and the accused to be convicted for Dowry Death and cruelty and Dowry Harassment. 24. Countering the arguments of the State and taking me through the evidence, the learned counsel for the accused submitted that the trial court has rightly found that the jewels, cash and fridge given by P.W.1 to Lucy were only out of affection. Assailing the reliability of P.Ws.1 and 2, the learned counsel submitted that both the witnesses have a tendency to make improvements. Much reliance is placed upon the documents filed by the accused in support of the contention that the accused purchased the house plot by obtaining permission from Directorate of Health and Family Welfare Services, Pondicherry and availing loan from the Pondicherry Gazetted Officers' Cooperative Credit Society Limited and there could not have been any demand of dowry for purchase of plot. Evidence of P.W.3 is seriously assailed on the ground that she is already estranged from her husband - brother of the accused and the trial court had rightly not taken note of her evidence. Pointing out the inconsistencies between the evidence of P.Ws.13 and 14, the learned counsel further submitted that the evidence of P.W.13 that the accused slapped the deceased and one such stray instance would prove the ill-treatment and cruelty. It is submitted that in any event, in an Appeal against acquittal, the Appellate Court cannot interfere with the order of acquittal unless the reasonings of the trial court suffer from perversity and infirmities. 25. Upon careful re-assessment of the evidence, materials on record, impugned judgment of the trial court and submissions of both sides, the following common points arise for consideration in this Appeal and Revision;(i) Whether the Prosecution has proved that the deceased was subjected to cruelty or harassment in connection with demand for dowry by the accused "soon before her death"? (ii) Whether the trial court was right in finding that there was no cruelty or harassment "soon before her death"? (iii)Whether the reasonings and findings for acquittal suffer from any serious and substantial error warranting interference ? 26. Before adverting to the evidence and the contentious points urged, we may refer to the factors in the light of which the merits of the contentious points are to be considered. The accused is a Hindu. The deceased is a Christian. They developed love and friendship even during the student days. Clandestinely they got married in 1986. For legalising the same, their marriage was celebrated in a Hindu Temple according to Hindu rites at Veerampattinam on 05.06.1988. P.W.1 and his family did not reconcile to the marriage. P.W.1 sent P.W.8 - Joe Periera and another son to the marriage along with the gift of Rs.1001/= to be presented to Lucy. The marriage being the love marriage, absolutely there is no possibility of demand of dowry in connection with the marriage. 27. Case of Prosecution as setforth through P.Ws.1 and 2 is that deceased was subjected to cruelty and ill-treatment in:(a) demand of jewels; (b) demand of money for purchase of Motor Cycle and Plot; (c) demand of a fridge; (d) demand of money for construction of the house. 28. Before adverting to the evidence on the alleged demand and appreciation of evidence by the trial court, certain important aspects need to be referred to. On 24.05.1992 between 8.00 AM and 10.30 AM, P.W.17 - Tahsildar conducted inquest. During the inquest, P.W.1 - Ignatious Francis Periera and P.W.4 Sumathi, who is the close friend of deceased Lucy, were examined. Upon their examination and other witnesses, P.W.17 formed opinion that the death was due to frustration since deceased Lucy was not having the child. Opinion of P.W.17 - Tahsildar is this:@,we;Jgl;lth; kpft[k; ey;yth; vd;Wk; kzk; Koj;jgpd; fzth; cjaFkhUld; ey;y thH;f;if elj;jp te;jth; vd;Wk;. fy;ahzkhfp MW tUlk; fHpe;j gpd; g[k; FHe;ij gpwf;fhj fhuzj;jhy; kdKile;J ,e;j jw;bfhiyf;F Kad;W ,Uf; fyhk; vd;W re;njfg;gLk;goahf cs;sJ vd;W ,';F FGkpapUe;j g";rhaj;jhh;fs; jdpj;jdpnaa[k; xUkpj;Jk; j';fs; fUj;Jf;fisj; bjhptpj;jhh;fs;@/ 29. During inquest, P.W.1 was examined. In his statement before Tahsildar, P.W.1 had stated that he had voluntarily given jewels to Lucy; paid money for purchase of house site and Motor Cycle. It is relevant to refer to the statement of P.W.1 recorded by the Tahsildar as ,tSf;F kzk; Koe;jgpd; eiffs; bra;J bfhLj;J cs;nsd;/ Fsph;rhjd bgl;o th';fp bfhLj;J cs;nsd;/ tPl;Lkid th';ft[k;. g[jpa nkhl;lhh; irf;fps; th';ft[k; gzk; bfhLj;J cjtpa[s;nsd;@/ Further, P.W.1 has stated that Lucy might have committed suicide out of frustration for not having the child. That part of the statement before the Tahsildar reads:,e;j rhtpw;F ahh; fhuzk; vd;W bjhpatpy;iy/ v';fSf;F vth; kPJk; re; njfk; ,;y;iy/ FHe;ij ,y;iyna vd;w ftiyahy; ,e;j jpOh; Kot[f;F ngha; ,Uf;fyhk; vd;W re;njfg;gLfpnwd;@ 30. During inquest, P.W.4 Sumathi, close friend of deceased Lucy was also examined. She has also stated before the Tahsildar that deceased Lucy never complained about any demand of dowry nor illtreatment by the accused. P.W.4 has further stated that deceased Lucy was sad since she was not procreating. Thus in the course of inquest by P. W.17 - Tahsildar, nothing was made out to book the accused under Sec. 304-B IPC or under Section 498-A IPC or under Sec. 306 IPC. The conclusion of the inquest was only to the effect that due to honesty Lucy committed suicide by hanging. Since the death was concluded to be suicide by hanging and nothing was made out to book the accused for the offences, the dead body of Lucy was handed over to the accused to complete the last rituals. P.W.1 - father of the deceased was present all through the inquest and he had also witnessed all the formalities. It is not as if P.W.1 is too na ve or a simple rustic. He was then employed in Railways and must have been quite conscious of what was happening during inquest. Thereafter, on 25.05.1992 P.W.2 - brother of the deceased sent Ex.P.4 - Complaint levelling allegations against the accused. 31. In Ex.P.4 - Complaint, P.W.2 referred to the conduct of the accused ill-treating Lucy in demand of dowry by way of jewels and cash. P.w.2 has also referred to the illicit relationship of accused with one Mary Jacquiline. In his Complaint - P.W.2 suspected that some kind of foul play had taken place to get rid of Lucy knowing fully well that there is no one in Pondicherry to protect her. Thus in Ex. P-4, P.W.2 has emphatically stated about "foul play" that had taken place to get rid of Lucy and P.W.2 sought for Re-Enquiry in the matter. Thus the tendency of P.Ws.1 and 2 in making improvements is made clear by their conduct. 32. P.Ws.1 and 2 have spoken about the dowry demand and the alleged cruelty to deceased Lucy. As discussed earlier, love marriage was not to the liking of the family of the deceased though subsequently they reconciled. They lost their loved one. Their love and affection for the deceased would naturally create a psychological hatred towards the accused, whom they consider instrumental for the death of Lucy. In view of their hatred towards the accused, the relatives of Lucy would have a tendency to exaggerate or give coloured version of facts. Therefore, the Court is to examine their evidence with great care and caution. This is all the more so, in an Appeal against Acquittal. 33. At this juncture, we may also point out certain observations emanating out of the personal notions of the learned trial Judge. While analysing the evidence of P.Ws.3 and 12, who had stated that the accused used to beat the deceased worse than a 'rickshaw puller', the learned Sessions Judge observed, "Regarding the alleged beating, I have to point out that, in India, it is not an uncommon feature in day-to-day marital life that the husband beats the wife. Such beating by the husband of his wife, is usually seen when there is economic pre-dominance by the husband over his wife and when the wife is helpless, both economically and socially. On the other hand, we have also heard of the wife beating the husband when economically she is stronger than her husband. So, the society had come out with an old saying @mof;fpw ifjhd; mizf;Fk;@/ Instead of analytically examining and assessing the evidence, the learned Sessions Judge seems to have imported his own notion as to the matrimonial life and the domestic happenings. This personal notion of the learned Judge is vague, unsupported by any materials. In my view, the trial court ought not to have imported that reasonings in the judgment. The trial court ought to have the evidence in the light of the essential ingredients of section 304-B IPC. Merely because the trial court has imported its personal notion, that alone cannot be the reason for interfering with the finding of the acquittal. 34. It is well settled, the Appellate Court is first required to seek an answer to the question 'Whether the findings of the trial court are palpably wrong, manifestly erroneous and demonstrably unsustainable'. Upon evaluation of proved facts, if the Appellate Court finds that the acquittal judgment is perverse or based on misreading of facts or law or the findings are tainted with non-application of mind, the Appellate Court can interfere with the impugned order of acquittal. 35. Keeping in view the well settled principle of law that the order of acquittal not to be set aside unless it is found to be patently wrong and wholly unsustainable, I have carefully perused and reassessed the entire evidence. 36. For convicting the person under Section 304-B IPC, the following essentials must be satisfied; (i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of her marriage; (iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (iv) such cruelty or harassment must be for or in connection with demand for dowry; (v) such cruelty or harassment is shown to have been meted out to the woman soon before her death. 37. A bare reading of section 304-B IPC would show that when a question arises whether a person has committed the offence of a dowry death of a woman what is necessary is that it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected to cruelty or harassment for or in connection with the demand of dowry. If that is shown, the court shall presume that such a person has caused the dowry death. It is