B A I L S L I P The Appellants in Crl.A.No.239/09 viz., 1. Madhavan S/o Mannar Naidu 2. R.Seenivasan S/o Ranganathan 3. S.Shanthi W/o Seenivasan 4. M.Kuyila @ Kuyilambal W/o Mannar Naidu were directed to be released on bail as per the order of this Court dated 20.5.2009 made in MP.No.1 of 2009 in Crl.A.No.239/09. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2011 C O R A M THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Criminal Appeal No.239 of 2009 1. Madhavan 2. R.Seenivasan 3. S.Shanthi 4. M.Kuyila @ Kuyilambal ... Appellants/Accused 1 to 4 Vs State rep. by the Deputy Superintendent of Police, Otteri Police Station, Chengalpattu, Kancheepuram District. ... Respondent/Complainant Criminal Appeal is filed under Section 374(2) of Cr.P.C. against the judgment of the learned Sessions Judge, Mahila Court, Chengalpattu, Kancheepuram District in S.C.No.18/2007 dated 20.4.2009. For Appellants : Mr.S.Shanmuga Velayutham for Mr.T.Vijayaraghavan For respondent : Mr.S.Rajkumar, Government Advocate assisted to Mr.V.Rajagopal, J U D G M E N T The appellants are the accused in S.C.No.18 of 2007 on the file of the learned Sessions Judge, Mahila Court, Chengleput, Kancheepuram District. The trial court by judgment dated 20.4.2009 https://hcservices.ecourts.gov.in/hcservices/ convicted the appellants for offences under Sections 498-A and 304- B of IPC alone. The trial court has acquitted the accused/appellants from the charge under Section 306 of IPC. For the offence under Section 498-A of IPC, the trial court has imposed a sentence of rigourous imprisonment for 2 years and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for 6 months and for the offence under Section 304-B of IPC., they have been sentenced to undergo rigourous imprisonment for 7 years. Challenging the said conviction and sentence, the appellants/accused are before this Court with this appeal. 2. The case of the prosecution in brief is as follows: The deceased in this case was one Mrs.Lakshmi. The 1st accused is her husband. The marriage between them was celebrated on 6.3.2006. P.W.1 is the brother, P.W.2 is the father and P.W.3 is the mother of the deceased. The accused Nos.2 to 4 are the brother-in-law, sister and mother of the 1st accused respectively. Before the marriage, when the negotiations were on, it is alleged that all these accused demanded 10 sovereigns of gold jewels for the bride and 2 sovereigns of gold jewels for the bridegroom as dowry at the time of marriage besides a cot, bureau and other household articles. The marriage was to be celebrated on 6.3.2006. 15 to 20 days prior to the marriage, the betrothal was celebrated. At that time, it is alleged that these accused demanded gold jewels and a Colour T.V. It is further alleged that the 2nd accused told P.Ws.1 to 3 that the marriage would not happen unless and until, the above demanded articles were presented at the time of marriage. P.Ws.1 to 4 assured them that they would present the same within one month from the date of marriage. Accordingly, the marriage was celebrated. Ten days after the marriage, for the bridegroom 2 sovereigns of gold jewel was presented as dowry as demanded earlier. But the 1st accused was not satisfied with the same. He demanded a sum of Rs.5,000/- in spite of household articles and a Colour T.V. As dowry. The deceased told the same to P.W.1. In the meanwhile, while the deceased became pregnant, on 7.5.2006, P.Ws.1 and 2 went to the house of the accused taking vessels for presenting the same to the young couple. But the 1st accused objected to the same. He questioned as to why a Colour T.V. was not brought. Then, the accused did not allow P.Ws.1 and 2 to put the articles in the house. But the deceased took the vessels and kept them inside the house. The 1st accused got enraged as a result of which he beat the deceased in the presence of P.Ws.1 and 2. It is further alleged that the accused were persuaded by P.Ws.1 and 2 and then, the matter was amicably settled. Thereafter, the first accused allowed the P.Ws.1 and 2 to present the articles. Then everything went on smooth. Then P.W.1 and P.W.2 returned. After some days, there was a phone call from the deceased to P.W.3 that the 1st accused was harassing her, demanding Rs.5,000/- and a Colour T.V. Finally, on 17.5.2006 at 11.00 p.m. the deceased committed suicide by hanging. https://hcservices.ecourts.gov.in/hcservices/ 3. On a complaint preferred by P.W.1 on the same day, P.W.9, the then Sub-Inspector of Police attached to Otteri Police Station, registered a case in Crime No.130/2006 under Sections 174 (3) Cr.P.C. Ex.P.1 is the complaint and Ex.P.2 is the First Information Report. He forwarded the First Information Report and complaint to court and then handed over the case diary to the Deputy Superintendent of Police for further investigation. P.W.11 was the then Deputy Superintendent of Police. He took up the case for investigation. On 18.5.2006, he proceeded to the place of occurrence and prepared an Observation Mahazar in the presence of P.W.6 and another witness. He also prepared a Rough Sketch showing the place of occurrence. Then, he recovered the Saree used as a ligature for committing suicide under Ex.P.3 Mahazar. M.O.1 is the said cotton saree. Then, he examined P.W.5 and few more witnesses and recorded their statements. Since the death occurred within 7 years from the marriage, he requested the Revenue Divisional Officer to hold inquest on the body of the deceased. P.W.12 was the then Revenue Divisional Officer of Chengleput District. On the request of P.W.11, he held inquest on the body of the deceased on 17.5.2006 between 3.00 p.m. and 4.00 p.m. During the same, he examined P.Ws.1 to 5 and few more witnesses and recorded their statements. He submitted the inquest report under Ex.P.13. He forwarded the dead body of the deceased for postmortem. P.W.10 Doctor conducted autopsy on the body of the deceased on 19.5.2006. He found as many as 4 external injuries on the dead body of the deceased. Accordingly, he opined that the death was due to suicidal hanging. Continuing the investigation, P.W.11 altered the case into one under Section 498-A and 304 of IPC. On 1.6.2006, he arrested the accused 1 and 2 in their house. The other accused were absconding. On 5.6.2006, he examined P.W.10 Doctor and collected the postmortem certificate. He examined few more witnesses and finally, laid charge sheet on 18.5.2006 against the accused under Sections 498-A and 304-B of IPC. 4. Based on the above materials, the trial court framed charges under Sections 498-A, 304-B and 306 of IPC against all the accused. Since all the accused denied the charges, they were put on trial. 5. During the course of trial, on the side of the prosecution, as many as 13 witnesses were examined and 13 documents were exhibited and M.O.1, M,O.2 series and M.O.3 series were marked on the side of the prosecution. As stated above, P.Ws.1 to 3 have spoken to about the dowry allegedly demanded by these accused and they have also spoken to about the commission of suicide by the deceased. P.Ws.4 and 5 have spoken to about the arrangement for the marriage between the 1st accused and the deceased and the demand for dowry made before the marriage. https://hcservices.ecourts.gov.in/hcservices/ 6. When the incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same. On their side, they examined two witnesses, namely, one Vengaiyan and Madhavan and they have also marked one defence document under Ex.D.1 which is the Medical Treatment Card of the deceased. D.W.1 has spoken to the fact that there was no demand for dowry at all prior to the marriage and the marriage was celebrated in a happy mood. D.W.2 is the 1st accused. He has stated that he had taken the deceased to the hospital for treatment. Their plea was that they never demanded any dowry and they were not responsible for the death of the deceased. Having considered the above materials, the trial court found all the accused guilty under Sections 498-A and 304-B of IPC and accordingly punished them. That is how, the appellants are before this Court with this appeal. 7. I have heard Mr.S.Shanmugavelayutham, learned Senior Counsel for Mr.T.Vijayaraghavan, learned Counsel for the appellants and Mr.S.Rajkumar, learned Government Advocate who assisted Mr.V.Rajagopal, learned Government Advocate (Criminal side) and also perused the records carefully. 8. At the outset, the learned Senior Counsel for the appellants would submit that in so far as the accused Nos.2 to 4 are concerned, absolutely, there is no evidence at all either to make out an offence under Section 498-A of IPC or an offence under Section 304 of IPC. In order to establish the said contention, the learned Senior Counsel would take me through the evidences of P.Ws.1 to 3 and he would point out that P.Ws.2 and 3 have not stated anything about any demand made by these accused 2 to 4 after the marriage. But it is in the evidence of P.W.1 that on 7.5.2006, when P.Ws.1 and 2 had gone to the house of the accused, the accused Nos.2 and 3 also joined with the 1st accused to harass the deceased. The learned Senior Counsel would further submit that this part of the evidence of P.W.1 is unbelieveable. 9. In this regard, the learned Government Advocate would submit that the evidence of P.W.1 is cogent and convincing and based on the same, the conviction recorded by the accused 2 to 4 needs to be sustained. 10. I have carefully considered the above submissions and I have also gone through the evidence. 11. As rightly pointed out by the learned Senior Counsel for the appellants, though it is in evidence that prior to the marriage, these accused 2 to 4 demanded dowry, after the marriage, there was no demand at all for any dowry by these accused. Had it been true that these accused also joined hands with the 1st accused to demand dowry, surely that would have been within the knowledge of P.Ws.2 and 3. The very fact that P.Ws.2 and 3 have not stated https://hcservices.ecourts.gov.in/hcservices/ anything about the alleged demand made by these accused 2 to 4 would go to show that what is stated by P.W.1 is doubtful. Therefore, convicting these accused 2 to 4 solely on the basis of the evidence of P.W.1 is highly unsafe. On this ground, I am inclined to acquit the accused Nos.2 to 4 for want of acceptable and reliable evidence. 12. Now coming to the case against the 1st accused, the learned Senior Counsel for the appellant would fairly submit that there is evidence on record through P.Ws.1 to 3 that the 1st accused demanded dowry. A perusal of the evidences of P.Ws.1 to 3 coupled with the evidence of P.W.4 would go to show that the 1st accused demanded a Colour T.V. and a sum of Rs.5,000/- after the marriage from the parents of the deceased. There is nothing on record to doubt the case of the prosecution in this regard. Therefore, the conviction of the 1st accused under Section 498-A of IPC does not require any interference at the hands of this Court. 13. In so far as the conviction under Section 304-B of IPC is concerned, the learned Senior Counsel for the appellants would submit that though it is in evidence that there was some demand for dowry and consequential harassment at the hands of the 1st accused, there was neither any demand nor any harassment soon before the death as required to be shown under Section 304-B IPC as well as 113-B of the Indian Evidence Act. For this proposition, the learned Senior Counsel would rely on two judgments, one from the Honourable Supreme Court in Sham Lal vs. State of Haryana reported in (1997) 9 Supreme Court Cases 759 and another judgment of this Court in Ramaiah and 2 others vs. State by Karambakudi Police Station, Pudukkottai District reported in 1999-1-L.W.(Crl) 127. The learned Senior Counsel would take me through the evidence of P.W.1 wherein it has been tacitly admitted that on 7.5.2006 though there was some quarrel, after some time, the matter was settled amicably by means of persuasion. It is only, thereafter, the vessels brought by P.W.1 and P.W.2 were taken into the house of the accused. Then P.W.1 and P.W.2 stayed for some time at the house of the accused which shows that everything was smooth. This clearly goes to establish that the matter was amicably settled once for all. 14. Now, after the said incident, it is the evidence of P.W.1 that 3 days thereafter, the deceased gave a phone call and informed that the 1st accused had again started harassing her demanding Rs.5,000/- as well as a Colour T.V. But, P.W.2 would say that the phone call was received 5 days after 7.5.2006. P.W.3 would give a quite contrary version to say that such phone call was received after 10 days after 7.5.2006. Thus, as pointed out by the learned Senior Counsel for the appellants, there is no consistency in respect of the phone call said to have been given by the deceased informing that she was again harassed by the 1st accused. The said https://hcservices.ecourts.gov.in/hcservices/ contradiction has not been explained away by the prosecution. Therefore, the fact as to whether there was any further demand for dowry and consequential harassment after the persuasion and the settlement reached between the parties on 7.5.2006, absolutely there is no acceptable evidence. Therefore, this part of the case propounded by the prosecution that after the Panchayat and settlement, there was a demand for dowry and consequential harassment at the hands of the 1st accused cannot be believed. If this part of the evidence itself is brushed aside, what remains is that on 7.5.2006, lastly there was a demand for dowry by the 1st accused and immediately on the very same day, the matter was amicably settled by means of persuasion. Therefore, when there is no evidence that after 7.5.2006, the deceased was harassed for any demand for dowry, as rightly pointed out by the learned Senior Counsel, the prosecution has failed to prove that soon before her death, as required in Section 304-B of IPC and Section 113-B of the Indian Evidence Act, there was harassment. In this regard, I may also refer to the judgment of the Honourable Supreme Court reported in (1997) 9 Supreme Court Cases 759 (cited supra) wherein in an identical situation in paragraphs 11 to 13, the Honourable Supreme Court has held as follows: "11. It is imperative, for invoking the aforesaid legal presumption, to prove that 'soon before her death' she was subjected to such cruelty or harassment. Here, what the prosecution achieved in proving at the most was that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash and on account of the failure to meet the demand for dowry. Nellam Ram was taken by her parents to their house about one and a half years before her death. Further evidence is that an attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she would go back to the nupital home pursuant to which she was taken by the accused to his house. This happened about ten to fifteen days prior to the occurrence in this case. There is nothing on record to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental house and her tragic end. 12. In the absence of any such evidence, it is not permissible to take recourse to the legal presumption envisaged in Section 113-B of the Evidence Act. That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption. 13. The corollary of the aforesaid finding is that the appellant cannot be convicted of the offence under Section 304-B IPC. But this would not save him from the https://hcservices.ecourts.gov.in/hcservices/ offence under Section 498-A of the IPC for which there is overwhelming evidence, particularly of PW.3, Bhagwan Dass, who heard from his daughter, which evidence is admissible under Section 32 of the Evidence Act, besides his own direct dialogue with the appellant and his father. As the trial court and the High Court found his evidence reliable, we hold that the prosecution has succeeded in proving the offence under Section 498-A of IPC." 15. A close reading of the above judgment would go to show that in that case also, after the panchayt, the issue was patched up between the parties. There was no harassment for about 15 days that is between the day of Panchayat and the day of tragic end of the deceased. In those circumstances, the Honoruable Supreme Court has held that the presumption under Section 113-B of the Evidence Act cannot be invoked and consequential conviction under Section 304-B cannot be sustained. Let me now refer to the judgment of this Court reported in 1999-1-L.W.(Crl) 127 (cited supra) wherein in paragraph No.9, this Court in an identical situation has held as follows: "9. In the absence of any such evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113-B of the Evidence Act. That rule of evidence is prescribed in law to ovate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption. In the present case, the prosecution case proved that the death of Madhavi took place within seven years of her marriage. Similarly that her death was caused by consuming poisons insecticide is also proved. But as far as the ingredient that soon before her death she was subjected to cruelty or harassment for or in connection with the demand for dowry is lacking. According to me, the prosecution has failed to produce sufficient materials. It has come in the evidence of prosecution witnesses themselves that there was a pachayat between the accused family and the family of the deceased in which they have come to terms that the demand of the accused must be met by the parents of the deceased during Deepavali time. This panchayat had taken place 15 days prior to the date of her death. There is no material to show during that period the accused were harassing the deceased so as to commit suicide by her. Under those circumstances, I am of the opinion that the decision cited by the learned advocate for the appellants will clearly apply to the facts of the present case. Accordingly, the conviction and sentence passed by the learned Sessions Judge under Section 304-B IPC. are set aside." https://hcservices.ecourts.gov.in/hcservices/ 16. In view of the above position, it is crystal clear from the evidences of P.W.1 to P.W.3 that after 7.5.2006 till 17.5.2006, there was no dowry demand or harassment at the instance of the 1st accused. Therefore, it is to be held as held by the Honourable Supreme Court that the presumption under Section 113-B of the Evidence Act cannot be invoked against the 1st accused and consequently, the conviction under Section 304-B also cannot be sustained. Therefore, the first accused is liable to be punished only for the offence under Section 498-A of IPC and not under Section 304-B of IPC. 17. In the result, the Criminal Appeal is partly allowed in the following terms : 1.The conviction of the 1st appellant/1st accused under Section 498-A of IPC and the sentence imposed therein are confirmed; 2. The conviction of the 1st appellant/1st accused under Section 304-B of IPC is set aside and he is acquitted from the said charge; and 3. The conviction and sentence imposed on the appellants 2 to 4 under Sections 498-A of IPC and 304-B are set aside and they are acquitted from all the charges and the fine amount, if any paid, shall be refunded to the respective accused and the bail bond, if any, executed, shall stand discharged. 18. In all other aspects, the Criminal Appeal stands dismissed. tsi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Judicial Magistrate No.II, Chengalpet, Kancheepuram. 2.Do Through the Chief Judicial Magistrate, Chengalpet. 3.The Sessions Judge, Mahila Court, Chengalpattu, Kancheepuram. 4.The Superintendent, Central Prison, Puzhal I, Chennai. 5.The Superintendent, Special Prison for Women, Puzhal, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 6.The Deputy Superintendent of Police, Ottery Police Station, Chengalpattu, Khancheepuram District. 7.The Public Prosecutor, High Court, Madras. 8.The District Collector, Kancheepuram. 9.The Director General of Police, Chennai + 2 cc to Mr. T. Vijayaraghavan, Advocate SR No.27673 VD(CO) SR/13.5.2011 Crl.A.No.239 of 2009 https://hcservices.ecourts.gov.in/hcservices/