IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20/08/2003 Coram THE HON'BLE MR. JUSTICE M. KARPAGAVINAYAGAM And THE HON'BLE MR. JUSTICE S. ASHOK KUMAR CRIMINAL APPEAL No.1161 of 2000 1. Chandrasekaran 2. Rathinam 3. Lakshmi .. Appellants -Vs- State: Rep. by Inspector of Police Lalgudi Police Station Trichy District (Crime No.1675/98) ..Respondent Criminal Appeal against the judgment dated 22.11.2000 in S.C.No.61 of 2000 on the file of the II Additional Sessions Judge, Tiruchirappalli. !For Appellant : Mr. S.Ashok Kumar for Mr.M.S.Kandasamy ^For Respondent: Mr.E.Raja, Addl. P.P. :JUDGMENT M. KARPAGAVINAYAGAM, J. Vanitha, a bride in her incipient twenties was stamped (trampled) to death by her husband Chandrasekaran at her nuptial home. After she was done away with, the husband tied the saree around the neck and suspended the body by tying the other end with the rafter of the roof. He thereupon began to cry along with his father Rathinam and mother Lakshmi as if she committed suicide. Then, her body was removed from the rafter with the help of neighbours. Thereafter, the deceased was put in a chair tying her with the chair by means of a rope to ensure that the body does not fall on the ground. After giving information to the parents of the deceased that she died, all the three accused persons, namely husband, father-in-law and mother-in-law of the deceased left the village and absconded. The motive for the unfortunate occurrence is that the dowry demands such as cow, goat and TVS 50 ( jiyg;bgh';fy; rPh;thpir) were not met by the parents of the deceased. 2. On these allegationsw, all the three persons, namely Chandrasekaran, husband (A1), Rathinam, father-in-law (A2) and Lakshmi, motherin-law (A3) were tried for the offences under Sections 498-A, 304-B, 30 2 and 302 read with 201 I.P.C. However, the trial Court acquitted A2 and A3 in respect of the charge under Section 302 I.P.C. and convicted them for the offences under Sections 498A, 304-B and 302 read with 201 I.P.C. A1 Chandrasekaran was convicted for all the offences under Sections 302, 498-A, 304-B and 302 read with 201 I.P.C. Challenging the above conviction, A1 to A3 have filed this appeal. 3. The short facts leading to the conviction are summarised as follows: "(a) The deceased Vanitha is the wife of A1 Chandrasekaran. A2 Rathinam is the father and A3 Lakshmi is the mother of A1. P.W.1 Arumugam and P.W.2 Chinnammal are the parents of the deceased Vanitha. (b) In the year 1997, the deceased Vanitha got married to A1 Chandrasekaran. The parents of the deceased were residing in Woraiyur near Trichy. After marriage, the deceased Vanitha was living along with her husband (A1), A2 father-in-law and A3 mother-in-law as a joint family in the village Anbil Mangammalpuram. (c) Within a few months, she got conceived. During that period, the first Pongal intervened. A2 and A3, the parents of A1 insisted P.Ws.1 and 2, the parents of the deceased to give "Thalai Pongal Seervarisai", such as cow (rPik gR), goat and TVS 50. P.W.1 assured that he would give those articles after birth of the child. (d) After "Valaikappu" function held in the ninth month, P.Ws.1 and 2 took the deceased to their house and admitted her in Srirangam Hospital. A male child was born. Then, the deceased along with the child was taken to the house of the accused. (e) The accused began to insist for the Thalai Pongal Seervarisai, which was assured to be given after birth of the child. For this purpose, the deceased was sent to the house of her parents to collect those seervarisai articles even without the child. Thereafter, at the intervention of the employer, the deceased joined her husband. P.W.1 assured that he would give the Pongal Seervarisai soon. (f) Since the Pongal Seervarisai articles were not given as agreed, the deceased was again sent with the child to her parents' house within a few months. P.W.1 expressed his inability. Therefore, the deceased with the child stayed in P.W.1's house for some days. (g) Then, A1 came to the house of the parents of the deceased and forcibly took her with the child to his house. Since seervarisai articles were not given as promised, the torture continued. (h) The deceased sent letter to P.W.1 informing the torture and asking P.W.1 to come and take her. P.W.1 and others went to the village and made an attempt to take her to the house. But, she was not allowed to go with them. (i) Within a few days, i.e. on 9.11.1998 at about 10.45 p.m., two persons belong to Anbil Mangammalpuram village came to Woraiyur and informed the parents of the deceased that the deceased died at the village. (j) Immediately, they arranged a Taxi and went to the village. They found the body of the deceased seated in a chair. Nobody was available in the house. A1 to A3 were found absconding. (k) Therefore, on 10.11.1998 at about 6.00 a.m., P.W.1 gave a complaint to P.W.12 Sub Inspector of Police, Lalgudi Police Station. The case was registered under Section 174 Cr.P.C. Intimation was sent to the Revenue Divisional Officer and the Deputy Superintendent of Police. (l) P.W.10 R.D.O. came to the scene and conducted inquest. He examined P.W.1, P.W.2 and others. The accused persons were not available. Then, P.W.10 sent a report to the police stating that the death was due to dowry torture and the accused were absconding. (m) P.W.9 Dr. Gandhi conducted post-mortem on the same day and found injuries on the neck and in the small intestines. He gave opinion that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained in the small intestines. (n) On the basis of this opinion, P.W.14 D.S.P. who took up investigation, altered the case into one under Section 302 I.P.C. (o) On 2.2.1999, P.W.13 Inspector of Police on the supervision of P. W.14 D.S.P., arrested A1 to A3. (p) After completion of the investigation, P.W.14 D.S.P. filed the charge sheet against the accused under Sections 498A, 304B and 302 I.P.C." 4. During the course of trial, on the side of prosecution,P.Ws.1 to 1 4 were examined, Exs.P1 to P17 were filed and M.Os.1 to 8 were marked. 5. The accused were questioned under Section 313 Cr.P.C. They denied their complicity in the crime. A1 filed a statement that on 9.11.1998 , he came back to the house after shopping in the evening and he found that his wife, the deceased hanging herself inside the house by means of a saree as she felt insulted when the village people objected to her act of having thrown thagadu, viboothi and lemon on the road side. On the side of the defence, D.W.1 was examined. According to him, on 9.11.1998 evening 5 O' clock, A1 came out of his house crying that his wife hanged herself inside the house. Therefore, neighbours removed the body from the rafter of the roof and put the body in a chair and performed the ceremonies. As instructed by A1, he went and informed P.Ws.1 and 2 at Woraiyur that their daughter committed suicide by hanging herself. The parents of the deceased got angry and arranged to come to the village along with dangerous weapons. D.W.1 came and informed this to the accused. Fearing the attack, A1 absconded. A2 and A3 were present in the village. There was no beating and torture on the deceased by the accused. 6. The trial Court convicted A1 for the offences under Sections 498A, 304-B, 302 and 302 read with 201 I.P.C. and while acquitting A2 and A3 for the offence under Section 302 I.P.C., convicted them for the offences under Sections 498-A, 304-B and 302 read with 201 I.P.C. and sentenced thereunder. Challenging the same, all the three accused have filed this appeal. 7. Assailing the judgment impugned, Mr.Ashok Kumar, the learned counsel for the appellants would make the following submissions: "The conviction under Section 302 I.P.C. on the first appellant (A1) is not legal as there is no material to show that A1 has caused the death of the deceased. P.W.1 gave complaint entertaining suspicion on the death of the deceased and stating that the deceased committed suicide due to the torture by the accused. P.Ws.1 and 2 do not give any direct evidence with reference to the act of murder by the accused. P.W.9 Doctor in the cross-examination would admit to a certain extent that the death would have been caused by suicide. The letters Exs.P1 to P3 stated to have been written by the deceased to P.W.1, were not handed over by her father either to the Sub Inspector of Police P.W.12, at the time when the complaint was lodged or to the R.D.O. P.W.10 at the time of enquiry. Admittedly, they were seized only on 24.11 .1998, i.e. after about 14 days. P.W.14 D.S.P., the investigating officer did not take steps for comparison of the handwriting of the deceased through the Experts. Therefore, Exs.P1 to P3 must have been fabricated belatedly to implicate the accused. When the offence under Section 302 I.P.C. is not made out, automatically the offence under Section 302 read with 201 I.P.C. also is not made out. There is no evidence that soon before the death of the deceased, there was any torture on the ground of demand of dowry. The alleged Pongal Seervarisai cannot be termed to be dowry as it would not satisfy the requirement of definition of dowry as mentioned in Section 2 of the Dowry Prohibition Act. Things which are given as gifts are only customary gifts and as such, they cannot be termed to be dowry. Consequently, the offence under Section 304-B I.P.C. is not proved. Similarly, the offence under Section 498-A I.P.C. would also not get attracted as there are no materials to show that the deceased was subjected to cruelty for unlawful demand. Consequently, all the accused are entitled to be acquitted." 8. To substantiate the above points, the learned counsel would cite a number of authorities. 9. In reply to the above submissions, Mr.E.Raja, the learned Additional Public Prosecutor would refer to several portions of the oral and documentary evidence adduced by the witnesses and contend that the conviction imposed upon the accused for the offences referred to above are perfectly legal. He would also cite several authorities. 10. We have carefully considered the submissions made by the counsel for the parties and gone through the entire records. 11. Before adverting to the merits of the respective contentions made by the counsel for the parties, it would be better to refer to the chronological events which have been shown by the prosecution through the materials leading to the filing of the case against the accused. Those events are as follows: (A) P.W.1 Arumugam is a retired Assistant in Veterinary Hospital. He is staying along with his wife P.W.2 Chinnammal at Woraiyur near Trichy. He has got three daughters and three sons. The deceased Vanitha is his second daughter. With the help of P.W.4 Maruthai who was working in the Veterinary Hospital along with him, P.W.1 was able to arrange the marriage of his daughter Vanitha with A1 Chandrasekaran. Rathinam (A2) is his father and Lakshmi (A3) is his mother. They were residing in Anbil Mangammalpuram. (B) As fixed by the elders, on 8.1.1997, the marriage between the deceased Vanitha and A1 Chandrasekaran was performed in Periyar Mandapam, Lalgudi. At the time of marriage, the parents of the deceased, namely P.Ws.1 and 2 gave 3 sovereign Necklace, 1 sovereign Ear-stud and Jimicki and nose-screw and silver Kolusu to bride and 1 + sovereign chain and + sovereign ring to bridegroom and cot, bed, iron bureau, wet-grinder, ever-silver and brass vessels and other house-hold articles as stridhan properties. (C) After marriage, the deceased Vanitha lived with her husband (A1) in the joint family along with A2 Rathinam, father-in-law and A3 Lalshmi, mother-in-law in the house at Anbil Mangammalpuram village. The accused persons owned two houses in the village. Though initially they were staying in one tiled house along with A2 and A3 as a joint family, some months later, A1 husband and the wife, the deceased occupied the other house, a hut, just opposite to the tiled house by setting up a separate family. Thereafter, she became pregnant. (D) When she was seven months pregnant, Thalai Pongal came. The accused when asked about Thalai Pongal Seervarisai articles such as cow, goat and TVS 50, P.Ws.1 and 2, the parents of the deceased told the accused that they were advised by the well-wishers that it was not a good omen to give the said "Thalai Pongal Se ervarisai" during the pregnancy period of their daughter and therefore, they promised that they would give those articles after the birth of the child. Though A2 and A3 insisted that seervarisai should be given during the Pongal period only, P.W.1 requested and told them that he would be able to mobilise money only after some time and therefore, they could wait till the delivery of the child. (E) In the 9th month, there was Valaikappu function held in the house of the accused. After Valaikappu, the deceased was taken to the house of P.W.1 for the purpose of delivery. As desired by the accused, P.W.1 admitted the deceased in the Pankajam Hospital at Srirangam. A male child was born. After discharge from the hospital, the deceased and child were taken to the house of P.W.1. After a week, A1 to A3 came to Woraiyur and asked P.Ws.1 and 2 to send the deceased and child with them to go to their house. When P.W.1 said that he would do Punniyathanam and put some jewels on the child and send them after three months, the accused insisted that they must be sent immediately along with them as they themselves would do Punniyathanam in their house. Since the accused highly insisted, P.Ws.1 and 2 sent the deceased with the child along with the accused persons after putting some jewels on the child. (F) After one week, P.W.1, P.W.2 and their neighbour P.W.5 Jothi went to the accused house at Anbil Mangammalpuram and requested them to send the deceased and child to their house. This time, the accused refused to send them with P.Ws.1 and 2 stating that the Thalai Pongal Seervarisai, such as cow, goat and TVs 50 were not given even after the delivery as assured by them. Therefore, P.W. 1 and others had to return home. (G) One week later, the deceased alone came to Woraiyur without the child. She told her parents P.Ws.1 and 2 that she was sent alone by A1 to A3 to collect the Thalai Pongal Seervarisai from them without allowing her to take the child with her. P.W.1 taking this as a serious one, went to Anbil Mangammlpuram village along with the deceased and well-wishers and complained to the employer under whom A1 was working about the conduct of the accused. Then, A1 was summoned. As soon as A1 came to the employer's house, on seeing the deceased standing there, he beat the deceased in his presence. However, the employer objected to his act stating that he should not beat her in his presence, that too, when she was in his house. Then, he advised P.W.1 to give the Thalai Pongal Seervarisai as agreed soon. Then, as instructed by the employer, the deceased was left in the house of the accused. P.W.1 assured that he would give the Thalai Pongal Seervarisai as soon as he gets the money and went back to their village. (H) Within some weeks thereafter, the ear-boring ceremony was performed for the child of one Chitra, another daughter of P.W.1. Since P. W.1 did not give adequate stridhana articles at the time of her marriage, in this ceremony, he gave cot, chain, etc. This was noticed by A1 to A3 who attended the ceremony. After returning back to their village, the accused insisted the deceased to go to her parents' house and collect the Thalai Pongal Seervarisai, such as cow, goat and TVS 50 stating that P.Ws.1 and 2 have got the money (retirement benefits). This time, she was allowed to go with the child to the parents' house. She came with the child and informed her parents P.W.1 and P.W.2 about the beating and torture at the hands of the accused over the demand of the Pongal Seervarisai. The deceased was asked to stay for some days. Accordingly, the deceased along with her child stayed. Two days later, A1 came and asked the deceased as to why she was continuously staying there without collecting the seervarisai articles from the parents of the deceased. Then, he asked the wife to come along with him on that day itself to go to his village. She stated that she was not well and was taking medicine and therefore, she would come later. A1 got angry and snatched the child from her and caught the child by his legs and lifted upwards. He threatened the deceased and P.Ws.1 and 2 and others that if she does not come with him, he would drop the child in the ground. Fearing the death of the child, P.Ws.1 and 2 sent the deceased and child along with A1. Even after arrival in the village, the beating and torture on the deceased at the hands of A1 continued on the reason that the Thalai Pongal Seervarisai articles were not given by the parents of the deceased as promised. (I) Unable to bear the same, the deceased Vanitha sent an Inland letter Ex.P1 along with two pieces of paper Exs.P2 and P3 through post on 25.8.1998 to P.W.1 informing that she was indiscriminately beaten and tortured by the accused and so, he must immediately come to village with elders and take her to his house, or arrange for the seervarisai articles to be given to the accused, otherwise she would be done to death. On receipt of the letter, P.W.1 and P.W.3 Pakkirisamy, a neighbour went to the village Anbil Mangammalpuram in order to bring her from the village. They asked the accused to send the deceased with them as the mother of the deceased was in a serious condition. However, the accused party did not incline to send her with them stating that they would later come and visit the hospital in which the mother of the deceased was admitted. When the deceased got into the car to go to the village Woraiyur at the insistence of P.W.1 and P.W.3, A1 husband and A3 mother-in-law objected to the deceased getting into the car to go to their house and A1 went near the car and caught hold of the tuft of the deceased and pulled her down from the car. Having failed in their attempt to take the deceased with them, P.W.1 and others simply returned to Woraiyur empty handed. This happened just few days before the fateful occurrence. (J) On 9.11.1998 at about 10.45 p.m., two persons came to the house of P.Ws.1 and 2 at Woraiyur claiming themselves that they are coming from Anbil Mangammalpuram village and informed them that the deceased died in the village. When P.Ws.1 and 2 asked about the cause of death, they did not reply and simply went away. Immediately thereafter, P.W.1 Arumugam, his wife P.W.2 Chinnammal and other neighbours arranged a Taxi at about 11.30 p.m. and left Woraiyur and proceeded to the village. They reached the village midnight at about 2.00 a.m. on 10 .11.1998. When they went to the accused house, nobody was available. The dead body of the deceased was found seated in a chair and tied with a rope in front of the house of the accused. When the neighbours were enquired about A1 to A3, they could not give any information about their whereabouts. They found injuries on both the legs and on the neck of the deceased. (K) Suspecting that it was suicide, on 10.11.1998 at about 6.00 a.m., P.W.1 went to the Lalgudi Police Station and gave a complaint Ex.P4 to P.W.12 Sub Inspector of Police mentioning the details of the torture over the demand of dowry and the suspicion that the deceased might have committed suicide due to the said reason. On receipt of the said complaint, P.W.12 registered a case in Crime No.1675/98 under Section 174 Cr.P.C. as suspicious death. Since the death of the deceased was within seven years of marriage, P.W.12 sent Ex.P4 complaint and Ex.P13, the printed F.I.R. to the Revenue Divisional Officer (P.W.10 ) and the copies to the Deputy Superintendent of Police (P.W.14). (L) On receipt of the F.I.R., P.W.14, the D.S.P. on 10.11.1998, took up investigation. He went to the scene at 9.00 a.m. and prepared observation mahazar Ex.P5 and drew rough sketch Ex.P14. He examined the witnesses. (M) P.W.10 Krishnan,the R.D.O. came to the spot at 1.00 p.m. on 10.11 .1998 and conducted inquest by examining P.W.1, P.W.2 and the local villagers. He also noted down injuries found on the body of the deceased. He tried to get at A1 to A3 to record their statement. But, they were not available as they absconded. So, on the basis of the available statements and the inquest report, P.W.10 sent report Ex.P11 to the police mentioning about the absence of A1 to A3 and stating that the death of the deceased must have been due to dowry torture at the hands of the accused. The inquest report is Ex.P12. He also sent Ex.P6 requisition to the Doctor to conduct post-mortem. (N) P.W.14, after receipt of the report Ex.P11 from P.W.10 R.D.O. continued the investigation and examined the witnesses. On 24.11.1998, he recovered the letter Exs.P1, P2 and P3 written by the deceased to P.W.1 mentioning the torture at the hands of A1 to A3. He altered the case registered under Section 174 Cr.P.C. into one under Sections 49 8-A and 304-B I.P.C. and continued the investigation. (O) P.W.9 Dr. Gandhi conducted post-mortem on 10.11.1998 at about 4.0 0 p.m. and found the injuries on the neck and the legs. On dissection, he also found injuries in the small intestines. After verification of the viscera report and hyoid bone report, P.W.9 gave final opinion Ex.P10 in the post-mortem certificate Ex.P8 that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained in the small intestines. (P) On the basis of the final opinion Ex.P10 given by the Doctor P.W.9 stating that the deceased would appear to have died of injuries sustained in the small intestines, the case was further altered into one under Section 302 I.P.C. Then, further investigation was entrusted to P.W.13 Inspector of Police. He took steps to arrest A1 to A3. Ultimately, on 2.2.1999, P.W.13 arrested A1 to A3 and sent them to judicial custody. The material objects were arranged to be sent for chemical analysis. After completion of the investigation, P.W.14 filed the charge sheet against the accused. 12. In the trial Court, the charges were framed against all the accused under Sections 498-A, 304-B, 302 and 302 read with 201 I.P.C. 13. Among the chronological facts, the undisputed facts are the following: (1) At the time of marriage on 8.6.1997, seervarisai articles like necklace and other jewels for bride, the deceased and gold chain and ring for bridegroom, the first accused and other household articles were given by P.Ws.1 and 2. (2) After the marriage, the deceased was staying with her husband in a joint family along with A2 father-in-law and A3 mother-in-law in a tiled house for a few months. Thereupon, A1 and the deceased were allowed to put up a separate family by staying in the hut which was situated in front of the tiled house. (3) After Valaikappu function at the house of the accused, the deceased was taken to the house of P.Ws.1 and 2 and from there, P.W.1, the father took the deceased and admitted in the Srirangam hospital for delivery as