BAIL SLIP The Appellants/Accused namely [1] N.Viswanathan S/o. [Late] Mr.Neelakandan [2] Saradha W/o. Late Mr.Neelakandan were directed to be released on bail as per order of this Court dated 19.12.2002 in Crl.MP.No.12939/02 in Crl.Appeal No.1789/2002 on the file of his Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 28.10.2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI Crl.A.No.1789 of 2002 1.N.Viswanathan 2.Saradha .. Appellants/Accused. Vs. State of Tamil Nadu rep. by Assistant Commissioner of Police, J7 Police Limits, Velacherry, Chennai. .. Respondent/Complainant. Prayer:- Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code against the judgment dated 4.12.2002 made in S.C.No.55 of 2001 on the file of the Sessions Judge, Magalir Neethimandram, Chennai. For Appellants : Mr.A.Ramesh, SC for M/s.Ram & Ram For Respondent : Mr.C.Balasubramanian, APP J U D G E M E N T The accused 1 and 2 have preferred this appeal against their conviction and sentence for the offence under Section 498A IPC. 2.The case of the prosecution is as follows: A1-Viswanathan is the son of A2 and the marriage between the first accused and the deceased Geetha, who was the daughter of PW1 Mani Iyar and sister of PW2 Naganathan, PW3 Murali and PW4 Manikandan, was celebrated at Tiruvanmiyur on 20.4.1995 and thereafter Geetha since deceased started living in the matrimonial house along with her husband, https://hcservices.ecourts.gov.in/hcservices/ mother-in-law and brothers-in-law. While so, on 30.1.1999 A1 Viswanathan and his brothers left the house for their respective jobs and Geetha and A2/ her mother-in-law were alone in the house, at that time, Geetha had a fall in the bath room at 10.30 am, while she was taking bath and sustained head injuries and she was admitted at 8.30 pm in the Government Hospital at unconscious stage, where the treating doctor did not perform any surgery for internal head injuries as she suffered from diabetes and as sugar level could not be brought under control. While she was under treatment, information was duly sent to the concerned police station and on receipt of the information, PW13/Head constable attached to the concerned police station reached the hospital and recorded statement from A1-husband. In the mean while, due information was also received by the family members of Geetha regarding her admission in the hospital. Unfortunately, Geetha died at 9.00 pm on 31.1.1999 in the hospital, while she was under treatment and the same was also intimated to her family members. After complying with all the formalities, dead body of Geetha was handed over to her family members for last ceremonies. 3.In the mean while, the statement given by the husband was registered as FIR. As Geetha died in the course of her treatment and as the death was caused within 7 years from the date of her marriage, FIR was forwarded to the concerned Revenue official for enquiry and inquest and the enquiry was conducted by PW14-Personal Assistant to District Collector, who in the course of his enquiry, recorded statement from the witnesses and sent his report to PW19/Deputy Superintendent of Police/ Investigation officer for suitable action. Thereafter, the Deputy Superintendent of Police commenced the investigation and in the course of which, he visited the scene of occurrence and prepared observation mahazar and rough sketch and recorded the statement of the family members and other relatives of the deceased Geetha and neighbours and he also recorded statement from the doctors who treated her and who held autopsy on the dead body of the deceased regarding the nature of the injuries and probable cause of death. The investigation officer has received due report and statements from PW14 revenue official and also collected all the relevant records, such as, wound certificate, post mortem certificate etc. PW19/Investigation Officer, after completing the investigation, filed charge sheet against the husband and mother-in- law arraying them as A1 and A2 for the offences under Sections 498A and 304-B IPC. 4.The charge sheet was taken up on file by the concerned Judicial Magistrate Court and the concerned Judicial Magistrate Court after completing all the legal formalities, committed the case to the concerned Sessions Court and S.C.No.55/2001 was transmitted to Magalir Neethimandram, Chennai for trial in accordance with law. The trial court has, after going through the records, framed two charges for the offences under sections 498A and 304-B IPC as if A1 and A2 made persistent demand for money to the deceased and harassed and https://hcservices.ecourts.gov.in/hcservices/ ill-treated her to satisfy unlawful demand and she was not duly taken care of by giving proper food and by giving proper treatment for her ailment ie. diabetes and on account of such ill-treatment, the deceased suffered such mental stress and agony and she consumed sleeping tablets and fell down in bath room and she was not given treatment for head injury sustained by her with ulterior motive to cause her death and such acts so committed by the accused constitute the offence punishable under sections as referred to above. 5.The prosecution has in order to prove the guilt of the accused for the offences referred to above, examined father, brothers, uncle and neighbour of the deceased, post mortem doctor, treating doctor, head constable who received the statement, PA to collector, post mortem constable, Assistant Commissioner, Deputy Superintendent of Police and Tahsildar as Pws.1 to 20 and produced post mortem certificate, Accident register, final report, complaint, FIR, observation mahazar, sketch, statement of witnesses to Tahsildar as Exs.P1 to P12. The accused produced Exs.D1 to D5 letters addressed by Jothi Lakshmi to the deceased, Mani Iyer/father of the deceased to A2, deceased to A1, statement of one Rajaram to Tahsildar and inquest report of the Tahsildar as Exs.D1 to D5. 6.The trial court on the basis of the evidence arrived at a conclusion that the prosecution failed to prove the demand for dowry and apparent cause for death of the deceased, but the circumstances available and the conduct of the parties would prove that the head injury sustained by the deceased was not due to accident fall. The trial court having found so, held that A1 and A2 not guilty of the offence under Section 304B IPC and found them guilty of the offence under Section 498A IPC. Hence, this appeal by A1 and A2 before this Court. 7.During the pendency of the appeal, A2/mother-in-law passed away on 9.3.2010, as such, the appeal against A2 stands dismissed as abated and the present appeal is pursued by A1/husband of the deceased. 8.The learned senior counsel for the appellants has seriously questioned the correctness of finding of conviction recorded by the trial court mainly on the ground that the same is lacking in evidence. It is seriously contended by the learned senior counsel for the appellant that the trial court having disbelieved the prosecution version, regarding dowry demand and cause of death as due to non- fulfillment of such dowry demand and having acquitted the accused under section 304B IPC, in the absence of any other additional material to prove the act of cruelty on the part of either of the accused, ought to have acquitted the accused for the offence under Section 498A IPC. It is further contended by the learned senior counsel that the finding of conviction under section 498A IPC is https://hcservices.ecourts.gov.in/hcservices/ totally based on suspicion and there is no enough and sufficient evidence even to substantiate such suspicion, as such, the order of conviction under Section 498A IPC without any evidence and without any specific finding regarding the manner of harassment and probable cause for death and direct link between the act of harassment and cause for fall, is hence factually unsustainable and the benefit of doubtful nature of the prosecution case as discussed by the trial court, ought to have been extended to the accused in respect of offence under section 498A IPC. 9.The learned Additional Public Prosecutor has, by taking this court through the evidence of Pws, attempted to justify the order of conviction of the trial court. 10.Heard the rival submissions made on both sides. 11.In this case, the medical evidence adduced through PW12, Dr.Venkateswaran and PW17 Dr.Thiyagaraja Thangam who treated the deceased, PW11-Dr.Thyvasigamani, who is one of the post mortem Doctors and Exs.P2 accident register and P1 post mortem certificate would go to show that the deceased sustained internal head injury due to fall in the bath room, while she was taking bath and she died of the same under treatment in the Government Hospital. Admittedly, the husband and his brothers with whom the deceased was living in the matrimonial house were not available in the house at the time of occurrence. The mother-in-law since deceased was only available in the house. It is nobody's case that there was any physical or wordy altercation between the husband and wife or between the mother-in-law or daughter-in-law just prior to her fall in the bath room. Admittedly, the deceased was suffering from high diabetes and she was undergoing treatment for the same much before the marriage and she was continuously given treatment after marriage. 12.As a matter of fact, though the reports viz., X-ray and scan reveal internal head injury, neither of the doctors decided to perform any surgery upon her as diabetes was not brought under control and the same continued to be on higher side while she was under treatment in the Government Hospital for head injury. As already stated above, the charges framed against the accused are that there was demand for money and she was subjected to harassment and ill-treatment by A1 and A2 and she was not given proper food and proper treatment for her ailment and she was frequently shouted at by A1 and A2 and due to such conduct on the part of A1 and A2, the deceased suffered such mental strain and agony and she consumed sleeping tablets. Further, the charges are that the injured was, after her fall in the bath room, not immediately taken to the hospital and it was purposely delayed resulting in her death. 13.However, the charges referred to above were almost given up during trial and the trial court in the impugned judgment, has https://hcservices.ecourts.gov.in/hcservices/ nowhere given any specific finding regarding the charges framed against the accused and the trial court arrived at a different conclusion as if there was a demand for money, but it was not proved that the deceased died on account of such dowry demand and there was hence no dowry demand. The trial court found the accused guilty of the offence under Section 498A IPC on mere suspicion that the head injury sustained by the deceased could not have been caused due to accident fall. The trial court also drew adverse inference against the accused for certain contradictions in the evidence of A1 and A2. 14.As rightly argued by the learned senior counsel for the accused, the finding rendered by the trial court regarding demand for money is totally based on the evidence of family members i.e, PW1 to PW5, who are none else than the father, brother and uncle of the deceased. It is noteworthy to point out that none of the witnesses spoke about the demand for money made by the accused to either of them. It is only spoken by them that the deceased used to come and complain about A1 and A2 as if she was demanded more money and other valuables and she was subjected to harassment. None of the witnesses did speak the manner in which she was harassed. The evidence of the prosecution side witnesses extracted in the judgment, based on which, the finding of conviction was recorded, is not sufficient enough to constitute any act of demand for more money or other valuables. There is absolutely no evidence to substantiate the prosecution case that she was not given proper food and proper medical treatment. There is also no evidence to show that the deceased was, at any point of time attempted to commit suicide and she was forced to take sleeping tablets on the fateful day. In the absence of any ocular or medical evidence to substantiate the act of cruelty meted out by the deceased either in the hands of A1 or A2 and any attempt made on the part of the deceased to commit suicide, the finding of conviction recorded by the trial court cannot be allowed to sustain. 15.Regarding the cause for injury, it is admittedly due to fall in the bath room by the deceased, while male members were away from the house. As already referred to above, A2 alone was in the house at the time of occurrence. Though the prosecution would say that despite her serious nature of injuries, she was not immediately taken to hospital, the same is not supported by any medical evidence. None of the doctors say that the deceased sustained external injuries and the same became complicated due to delay in bringing her to hospital. On the other hand, the specific defence raised on the side of the accused is that there was no symptom of any serious injury and the deceased was back to normal activities after the occurrence and she complained of giddiness only about 4.30 pm and the same was duly communicated to her husband through one of his friends and the deceased was immediately taken to the hospital for treatment. In the absence of any definite material to prove that the injured was immediately after fall, under unconscious stage warranting immediate treatment and the treatment was deliberately delayed by A1 and A2, https://hcservices.ecourts.gov.in/hcservices/ there is no reason to disbelieve such version given by A2, who is an only member available in the house at the time of occurrence. Though the trial court has drawn its own finding as if the nature of the injury sustained by the deceased were such that the injuries could not have been caused by accident fall, the trial court did not think fit to extract any opinion from either of the doctors i.e., PW11, PW12 and PW17 in this regard. The opinion given by the doctors for the cause of death is due to fall and in the absence of any evidence to show that it is due to any external force, the finding of the trial court that it is not an accidental fall, cannot be accepted. 16.Further, when the trial court found that the fall is not accidental one, the trial court ought to have rendered specific finding as to what is the cause for such fall in the bath room by the deceased. In this context only, Ex.P6 observation mahazar assumes greater importance. It is clearly stated by the Investigating Officer in Ex.P6 that the bath room was not kept clean and it was slippery in nature and if the same is viewed in the light of the fact that the deceased suffered from higher order of diabetes, the deceased sustained head injury due to accidental fall, cannot be ruled out. 17.Viewing from any angle, the prosecution, either as per the charges framed against the accused, or as per the case put forth during trial, not duly established the guilt of the accused and the trial court in its judgment, at more than once, pointed out the doubtful nature of the prosecution case but proceeded to convict the accused under Section 498A IPC on mere suspicion and the same cannot be allowed to sustain in the absence of any concrete proof. The appreciation of the prosecution side evidence would reveal that the prosecution failed to produce any material either to establish the charges framed against the accused or to support the finding of conviction rendered by the trial court and the same is factually unsustainable and unfounded, warranting serious interference by this court. 18.In the result, the criminal appeal is allowed by setting aside the judgment of conviction dated 4.12.2002 made in S.C.No.55 of 2001 on the file of the Sessions Judge, Magalir Neethimandram, Chennai and the appeal stands dismissed as abated in respect of A2. The first https://hcservices.ecourts.gov.in/hcservices/ appellant/A1 is acquitted from the charges. The bail bond if any executed by the accused shall stand cancelled and the fine amount if any paid by the accused shall be refunded to him. Sd/- Asst. Registrar[cs.ii] Dt/-04/02/2014 /true copy/ Sub Asst. Registrar. rk To 1.The Sessions Judge, Magalir Neethimandram, Chennai. 2. The IX Metropolitan Magistrate, Saidapet, Madras. 3. -do- through The Chief Metropolitan Magistrate, Egmore, Chennai. 4.The Assistant Commissioner of Police, J7 Police Limits, Velacherry, Chennai. 5.The Public Prosecutor, High court, Madras-104. Crl.A.No.1789 of 2002 ad[co] gp/1.4 https://hcservices.ecourts.gov.in/hcservices/