IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.10.2010 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM CRL.R.C.No.213 of 2004 S.Muniandi .. Petitioner/P.W.2 Vs. 1. State of Tamil Nadu, Rep. by Inspector of Police, Ammapettai Police Station, Bhavani, Erode District. .. 1st Respondent/Complainant 2. Sampath @ Vedachalam .. 2nd Respondent/Accused Prayer:- Petition filed under Section 397 r/w. 401 of Cr.P.C, against the order dated 14.02.2003 passed in S.C.No.113 of 2002 by the learned Additional Sessions Judge, Fast Track Court No.IV, Erode at Bhavani. For Petitioner : Prof.S.Krishnaswamy For R-1 : Mr.A.Saravanan, Government Advocate (Crl.Side) For R-2 : Mr.N.Manokaran ORDER The second respondent herein is an accused in C.C.No.113 of 2002 on the file of the learned Additional Sessions Judge, Fast Track Court No.IV, Erode at Bhavani and he was acquitted by the trial Court from the charges under Sections 498(A) and 304(B) I.P.C. Challenging the said acquittal, P.W.2, father of the deceased in this case, had preferred this Criminal Revision Case before this Court. 2. The case of the prosecution, in brief, is as follows:- P.W.2-Muniandi is a retired Commercial Tax Officer and he had three daughters. The deceased viz., Muniammal alias Thangamani was the first daughter. During the year 1997, one Mr.Madeswaran, who is uncle of the accused negotiated with P.W.2 to perform the marriage of the accused with the deceased. There was a demand for 100 sovereigns of gold jewels and cash of Rs.2,00,000/-. Finally, it was accepted for 50 sovereigns of gold jewels and cash of Rs.10,000/-. The marriage was performed on 07.09.1997. Subsequently, the deceased came to know that when she left for Dindigul, the jewels, which were kept by her in the house, were https://hcservices.ecourts.gov.in/hcservices/ taken clandestinely without her knowledge and pledged. The deceased was also scolded by the accused as an illiterate and that she did not know anything. As the accused incurred heavy loss in the business, a sum of Rs.10,000/- was given to him twice by P.W.2. P.W.2 also obtained a loan of Rs.2,00,000/- from one of his friend and he redeemed all the jewels including the jewels of the mother and sister of the accused and handed over the same to the accused. On one occasion, only Thali was in the neck of the deceased and she removed the Thali and threw it away. The accused informed the matter over phone to P.Ws.2 and 3, parents of the deceased and they came and advised the deceased. (ii) On 31.07.2001, at about 10.00 a.m., P.W.6-Janakilakshmi, heard a noise from the lower portion of the house, wherein the accused and the deceased were residing and she came down and knocked the door. She pushed open the door and also pushed the door of the bathroom and found that the deceased was lying upside down with burn injuries. P.W.6 raised alarm and came out of the house and informed the same to P.W.7. P.W.7 came out of the house hurriedly to send message to P.W.1 and the accused. P.W.1, brother of the accused also conveyed the message to the parents of the deceased. P.W.1 came to know that P.Ws.2 and 3 had come to Madras. However, they were also informed. P.Ws.4, 5 and others came to the house of the accused at 9.00 p.m. They enquired P.W.1 as to what had happened. Then, P.W.1 went to the police station and gave a complaint-Ex.P.1 to P.W.19. P.W.19, the Sub-Inspector of Police, on receiving the complaint from P.W.1, registered a case in Crime No.495 of 2001 for an offence under Section 174 of Cr.P.C. and prepared Ex.P.16-FIR. (iii) P.W.22-P.Santha, Revenue Divisional Officer, had received an information of Crime No.495 of 2001 and went to the scene of occurrence and conducted inquest and recorded the statements of P.Ws.2, 3, 4, 8, accused and others and she submitted a report Ex.P.26. Ex.P.37 is the inquest report. The body was sent to post-mortem examination. (iv) P.W.18-Dr.G.Ramasamy, who was on duty, had conducted autopsy over the body of the deceased and issued Post-mortem certificate-Ex.P.22 and opined that the deceased died due to 100% burns. Thereafter, P.W.14, Head Constable altered the case from Section 174 of Cr.P.C. to Sections 498(A) and 304(B) I.P.C. and prepared the alteration report-Ex.P.7. P.W.23-Deputy Superintendent of Police, who took up further investigation in this case, arrested the accused on 08.08.2001 and after completing the investigation, he laid a final report against the accused on 12.02.2002 for the offences under Sections 498(A) and 304(B) I.P.C. 3. In order to establish the case, the prosecution examined P.Ws.1 to 23 and marked Exs.P.1 to P.38 and produced M.Os.1 to 17. https://hcservices.ecourts.gov.in/hcservices/ The accused was questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances and he denied his complicity. On behalf of the accused, no witness was examined and two documents were marked as Exs.D.1 and D.2. 4. The Trial Court, after analyzing the oral and documentary evidence, had acquitted the accused. 5. Mr.S.Krishnaswamy, learned counsel appearing for the revision petitioner submitted that P.Ws.2 and 3 are the parents of the deceased and they have categorically spoken about the ill- treatment given to the deceased by the accused and the dowry demand. Further, P.W.2 had stated that he had given a sum of Rs.10,000/- twice to the accused and also he redeemed the jewels of the deceased and also the jewels of the mother and sister of the accused. But the trial Court, without invoking the presumption that arises under Section 113-B of the Indian Evidence Act, had acquitted the accused. Further, the trial Court erroneously had relied on Ex.P.3, a letter said to have been written by the deceased. The learned counsel for the petitioner further submitted that the trial Court ought not to have placed reliance on Ex.P.3 for acquitting the accused since what is stated in favour of the accused by the deceased in Ex.P.2 is not admissible under Section 32 of the Indian Evidence Act. Ex.P.2 is not the dying declaration of the deceased and it does not contain any date. 6. Mr.A.Saravanan, learned Government Advocate (Crl.Side) appearing for the first respondent submitted that the trial Court had elaborately considered the evidence and observed that there was no dowry demand by the accused. 7. Mr.N.Manokaran, learned counsel appearing for the second respondent submitted that the accused did not demand any dowry even as per the evidence of P.Ws.2 and 3 and it is admitted by P.W.3, mother of the deceased that as the accused sustained heavy loss in the business, P.Ws.2 and 3 had voluntarily helped the accused. Even after redeeming the jewels of the deceased the accused had not received those jewels and he had informed P.Ws.2 and 3 that they themselves can keep the jewels and those jewels could be received only after giving the amount. The learned counsel further submitted that most of the allegations which were made in the chief examination, were not stated earlier before the Revenue Divisional Officer or before the Investigating Officer. The learned counsel further submitted that Ex.P.2 is the letter recovered from the scene of occurrence. In the said letter, the deceased had stated that there was nothing wrong on the part of the accused. The learned counsel also submitted that the said letter was sent to handwriting expert for comparison and the handwriting expert has given an opinion and the same was also marked as Ex.P.35. https://hcservices.ecourts.gov.in/hcservices/ 8. This Court has considered the submissions made by both parties and perused the materials available on record. 9. The marriage of the accused and the deceased was performed on 07.09.1997. The deceased had committed suicide by self immolation on 31.07.2001. As per the evidence of P.W.2, the main allegations are that the accused had abused the deceased saying uneducated and inefficient person. P.W.2 had also stated that as the accused suffered heavy loss in the business, he had given a sum of Rs.10,000/- twice to the accused. He had also stated that he obtained a loan of Rs.2,00,000/- and redeemed the jewels of the accused family and also the jewels of the deceased. Except these allegations, he did not make any other allegations. Giving Rs.20,000/- to the accused as he suffered business loss and redeeming the jewels by P.W.2 would not amount to giving dowry. Further, P.W.2 had stated that the accused neither demanded a sum of Rs.20,000/- nor asked to redeem the jewels. According to P.W.2, it was only the deceased, who informed P.W.2 about the jewels being pledged and P.W.2 on his own had redeemed those jewels. Further, even these allegations were not made by P.W.2 while he was enquired by the Revenue Divisional Officer and the Investigating Officer. P.W.3, mother of the deceased had stated that she was informed over phone by the deceased that the accused assaulted her on nose. P.W.3 had further stated that the accused received a sum of Rs.25,000/- for starting a travel business but these facts were not stated during the Revenue Divisional Officer's enquiry or before the Investigating Officer. From the evidence of P.Ws.2 and 3, the ingredients of the offences under Section 498(A) and 304(B) I.P.C. are not attracted. 10. Of course, the trial Court had relied on Ex.P.2 note book containing the dying declaration of the deceased marked as Ex.P.3. Ex.P.3 is the document filed by the prosecution. In Ex.P.3, it is stated by the deceased as follows:- ",dp nky; ehd; thH tpUk;gtpy;iy/ vd; fztd; nky; ve;j jg;g[k; ,y;iy/ mt';fis xd;Wk; bra;a ntz;lhk;/ rpgpia vd; fztd; ,lnk bfhLj;J tpL';fs;/" Ex.P.3 excludes the criminal liability of the accused. But it was contended by the learned counsel for the petitioner that Ex.P.3 is inadmissible since what is stated in favour of the accused would not amount to dying declaration. Of course, in the suicidal note- Ex.P.3 what is stated in favour of the accused may not be admissible under Section 32 of the Indian Evidence Act since it is a statement made by the deceased neither relating to the cause of her death nor as to any of the circumstances of the transaction which resulted in her death. In Ex.P.3 the deceased had stated that she did not want to continue her life. (,dp nky; ehd; thH tpUk;gtpy;iy). Only this part of the suicidal note-Ex.P.3 would be admissible under Section 32 of the Indian Evidence Act. Though the other part of the suicidal note-Ex.P.3 may not be admissible under https://hcservices.ecourts.gov.in/hcservices/ Section 32 of the Indian Evidence Act, as the statement is in favour of the accused and relevant for exonerating the accused, this Court feels that there was nothing wrong in placing reliance on the said part in Ex.P.3. 11. The Hon'ble Supreme Court, in the decision reported in AIR 2001 Supreme Court 3837 (Ramesh Kumar Vs. State of Chhattisgarh), has observed at paragraph No.22 as follows:- "22. ..... Evidential value of the two writings contained in diary Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband." 12. For the above said reasons, this Court does not find any reason to interfere with the Judgment of the trial Court. Hence, this Criminal Revision Case is dismissed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar jrl To 1. The Additional Sessions Judge, Fast Track Court No.IV, Erode at Bhavani. 2. The Inspector of Police, Ammapettai Police Station, Bhavani, Erode District. 3. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. S. Krishnawamy Advocate SR. 75079 + 1 cc to Mr. N. Manokaran, Advocate Sr.75262 CRL.R.C.No.213 of 2004 SJ(CO) EU 30.11.10 https://hcservices.ecourts.gov.in/hcservices/