IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 19.02.2010 CORAM THE HONOURABLE MR. JUSTICE S. NAGAMUTHU CRL.A.No.655 OF 2006 State by the Deputy Superintendent of Police Valsaravakkam Police Station Chennai. [Crime No.370/2004] .. Appellant/ Complainant Vs 1.Suresh Kumar 2.Kanthammal .. Respondents/Accused Appeal filed u/s.378 Cr.P.C., by the State against the Judgment dated 29.03.2006 in SC.No.555 of 2005 by the learned Additional Sessions Judge,Fast Track Court No.III, Poonamallee and to set aside the order of acquittal. For Appellant : Mr.N.R.Elango, Addl. Public Prosecutor For Respondents: Mr.S.Ashok Kumar, Senior Counsel for Mr.S.L.Venkateshan JUDGMENT The State is the appellant. The respondents stood charged u/s.498-A, 306 and 304[B] IPC in SC.No.555/2005 on the file of the learned Additional Sessions Judge, Fast Track Court No.III, Poonamallee by Judgment dated 29.03.2006, the trial court acquitted the respondents. Challenging the same, the appellant has come up with this appeal. 2.The case of the prosecution in brief is as follows:- [a]P.Ws.3 and 4 are the father and mother respectively of the deceased Lavanya. P.W.5 is the mother of P.W.3. The first accused [A1] is the son of the second accused [A2]. The marriage between A1 and Lavanya was celebrated on 05.03.2003. At the time of marriage, 55 sovereigns of gold jewels were presented by P.Ws.3 and 4 to the https://hcservices.ecourts.gov.in/hcservices/ deceased. After the marriage, A1 and the deceased were living separately at Sivaganga where A1 was then working as Motor Vehicle Inspector. The marital life was initially joyful for one month. Thereafter, it is alleged that A2 started demanding dowry of Rs.1 lakh and a car to A1. The deceased informed the same to P.W.3 over phone. Since persistently such demand was made by A1 at the inducement of A2, P.W.4 went up to the house of A1 and told him that in due course, they would satisfy the demand. In the meanwhile, the deceased became pregnant. In the fifth month of the marriage, a function was organised to celebrate the same as per the custom. It was held at the house of P.Ws.3 and 4. During the said function, again it is alleged that A2 demanded Rs.1 lakh and a car as dowry. When the deceased was six months pregnant, "Valaikappu" was celebrated. At that time also, it is stated that A2 demanded dowry. A child was born on 07.01.2004. 5 sovereigns of gold was presented to the child. Even thereafter, it is alleged that A1 and A2 persistently demanded dowry and the same was informed by the deceased to P.Ws.3 and 4. On 22.06.2004, the deceased was taken to the house of P.Ws.3 and 4 by A1 and left her. While the deceased was at the house of P.Ws.3 and 4, A1 again spoke to her over phone and repeated the said demand. On 01.07.2004, the deceased spoke to P.W.4 over phone and told that she could not alive anymore because of the torture meted out to her. When P.W.3 in turn spoke to A1 over phone, A1 repeated the said demand. On 02.07.2004, the deceased committed suicide on hanging. In this regard, P.W.3 preferred a complaint under Ex.P.5. [b]P.W.6 was then the Inspector of Police at Valasaravakkam Police Station. On receipt of Ex.P.5, complaint, he registered a case in Crime No.370 of 2004 for the offence u/s.174[3] Cr.P.C. and Ex.P.6 is the FIR. Since the death was within 1 ½ years of the marriage, he requested the Revenue Divisional Officer to hold inquest. He then forwarded the Case Diary to the Deputy Superintendent of Police for further investigation. [c]One Subbaiah, the then Revenue Divisional Officer held inquest on the body of the deceased and submitted a report, Ex.P.10. [Since Mr.Subaiah is no more, he was not examined at the lower court]. P.W.7, who was then the Deputy Superintendent of Police, Poonamallee, took up the case for investigation. He proceeded to the spot and prepared the Observation Mahazar, Ex.P.1, in the presence of P.W.1 and another witness. He prepared Ex.P.8, the rough sketch. Then he examined P.Ws.3,4 and 5 and few more witnesses and recorded their statements. Since, from the statements of those witnesses, he came to understand that offences u/s.498-A and 304[b] had been committed by these 2 accused, he prepared an alteration report, Ex.P.9 thereby altering the FIR and altering case into one u/s.498-A and 304[b] IPC and forwarded the said report to the court. Then he arrested the accused and send them for judicial remand. https://hcservices.ecourts.gov.in/hcservices/ [d]The Revenue Divisional Officer, on completing the inquest, forwarded the body for postmortem. P.W.2 was then the Professor of Forensic Medicine in Kilpauk Medical College Hospital. On receiving the request from the Revenue Divisional Officer, he conducted the postmortem on the body of the deceased on 02.07.2004 at 2.40 p.m. He found the following injuries:- "INJURY:- An incomplete brown colour ligature mark 27x2 cm seen over the frond and sides of the neck, on the front the ligature mark is above the thyroid cartilage on right side 7 cm below the mastoid process 4 cm below the left mastoid process and 7 cm below the chin. Absent on the back of the neck. O/D the area underneath the ligature mark is pale and parchmust. No evidence of haemorrhage in the soft tissue of the neck. Thyroid cartilage and hyoid bone are intact no other injuries seen." Ex.P.3 is the Post Mortem Certificate wherein he has opined that the deceased died of asphyxia due to hanging. [e]Continuing the investigation, P.W.7, examined the Revenue Divisional Officer and the doctor, recorded their statements, collected the reports and finally on 27.09.2004 submitted the final report u/s.498-A and 204[B] against the accused. 3.Based on the above materials, the trial court accordingly framed charges u/s.498-A, 306 and 304[B] IPC. The accused denied the charges and therefore, they were put on trial. During trial, as many as 7 witnesses, viz., P.Ws.1 to 7 have been examined on the side of the prosecution and 10 documents as Ex.Ps.1 to 10 were marked. When the accused were questioned u/s.313 Cr.P.C., in respect of the incriminating evidences available against them, they denied the same. On their side, 7 documents as Exs.D.1 to 7 were marked through the prosecution witnesses. Having considered all the above materials, the trial court held that the prosecution had failed to prove the case beyond reasonable doubts and therefore, acquitted them of all the charges. It is against the same, the present appeal has been filed by the State. 4.I have heard Mr.N.R.Elango, learned Additional Public Prosecutor appearing for the State and Mr.S.Ashok Kumar, learned senior counsel appearing for the respondents/accused. I have also perused the records carefully. 5.Before proceeding to analyse the evidences availabe on record, let me first state as to what is the scope of an appeal against acquittal. It is sell settled by the Hon'ble Supreme Court in a catena of decisions that the initial presumption of innocence of the accused during the trial gets further strengthened by the acquittal recorded by the trial court. It has also been well settled https://hcservices.ecourts.gov.in/hcservices/ that if two views are reasonably possible from out of the evidences available on record while dealing with the appeal against acquittal, it is not permissible for this court to substitute its views in the place of the view of the trial court. It is also the settled law that unless it is shown to this court that the findings of the trial court are perverse or patently erroneous, in general, this court would not interfere with the order of acquittal. Though it is permissible for this court and as a matter of fact it is obligatory on the part of this court to reappraise the entire evidence, even then, this court should be circumspect while analysing the said evidences to see whether the case falls within any of the parameters enumerated above. 6.Keeping in mind the above leading principles in mind, let me now analyse the evidence available on record. 7.Admittedly, the death of the deceased was within 1 ½ years of the marriage and the same was by hanging. In those circumstances, if it is shown to the court that soon before her death, she was subjected to cruelty or harassment by these accused, certainly they are liable for punishment u/s.304[B] IPC. In this regard, we may have to refer to section 113-B of the Indian Evidence Act. To invoke the presumption u/s.113-B of the Evidence Act, it is absolutely necessary for the prosecution to show that soon after her death, she was subjected to cruelty or harassment for or in connection with any demand for dowry. According to the learned Additional Public Prosecutor, the said presumption u/s.113-B of the Act needs to be raised in this case in view of the evidences of P.Ws.3 to 5 who according to him have categorically stated about the harassment meted out to the deceased in connection with the demand for dowry. 8.The learned senior counsel for the respondents/accused would submit that the evidences of P.Ws.3 to 5 cannot be believed insofar as they relate to the alleged dowry harassment. To substantiate this contention, the learned senior counsel would rely on certain answers elicited from P.Ws.3 to5 during cross-examination together with Ex.Ps.D2 to D7 which are all either letters or greetings sent by the deceased to A1. Learned senior counsel, therefore, would submit that from these letters which have been admittedly written by the deceased, it is crystal clear that the deceased would have been very happily living with A1 and there would not have been any demand for dowry as it is alleged by P.Ws.3 to 5. He would further submit that P.W.3 has categorically admitted during cross-examination that the deceased and A1 were very affectionate towards each other and they lived a very happy life. He would further point out that even P.W.3 was staying at the house of A1 at Sivaganga for number of days and during that time, he got a driving license at the instance of A1. This would go to show, according to the learned senior counsel, that the deceased was leading a very happy life and therefore, there https://hcservices.ecourts.gov.in/hcservices/ would not have been any demand for dowry. He would also point out that P.W.4, during cross-examination, has categorically stated that the deceased told her that she was happily living with A1. Learned senior counsel would further point out that it was only A1 who sent money on two occasions by means of Demand Draft to P.W.4. From these, according to him, it can be inferred that it was only the first accused who was in the habit of sending money and he would not have, therefore demanded anything. Learned senior counsel would lastly point out that the deceased would have taken the extreme step to commit suicide because her parents were pressurising her to get the property settled in favour of her husband by her father-in-law. Learned senior counsel would therefore submit, that these materials would go to show that the prosecution has not established that there was any demand for dowry and consequently there was harassment. Therefore, according to him the presumption u/s.113-B of the Evidence Act cannot be invoked and assuming such presumption is raised, it stands rebutted by the above circumstances. Therefore, according to the learned senior counsel, the lower court was right in acquitting the accused of all the charges. 9.I have considered the rival submissions. 10.At the outset, I have to state that the lower court was not right in framing charges simultaneously u/s.306 IPC and u/s.304[B] IPC for one and the same offence. It could be seen that they were not alternative charges framed, but they were independently framed. On noticing this, the learned Additional Public Prosecutor would submit that he would press for adjudication only in respect of the third charge u/s.304[B] IPC and not in respect of the charge u/s.306 IPC. As rightly pointed out by the learned Additional Public Prosecutor, in a case for the offence u/s.304[B] IPC, the presumption contemplated u/s.113-B of the Evidence Act can be invoked provided the other conditions are satisfied. The foremost condition is that soon before her death, the deceased would have been subjected to cruelty or harassment for or in connection with the demand for dowry. The phrase "soon before her death" came to be considered by the Hon'ble Supreme Court on various occasions and the Hon'ble Supreme Court has held that there can be no fixed formula prescribing the time limit to define the said phrase. The Hon'ble Supreme Court has held that it all depends upon the facts and circumstances of each case. It is stated that one day prior to the commission of the suicide by the deceased, the deceased spoke to P.W.3 over phone and informed him that she was subjected to harassment for demand for dowry by A1. As pointed out by the learned senior counsel for the respondents/accused, this statement is not found in the complaint-Ex.P.5. There is no explanation offered for this also. Therefore, as rightly pointed out by the learned senior counsel, this part of the evidence of P.Ws.3 and 4 is only an afterthought which cannot be given any weightage of. https://hcservices.ecourts.gov.in/hcservices/ However, there is evidence that on several occasions after one month of her marriage till her demise, demand for dowry was made and she was harassed which only had driven her to commit suicide. But the trial court has given much weightage to Exs.D2 to D7 to disbelieve the evidences of P.Ws.3 to 5 in this regard. These documents are either letters or greetings sent by the deceased to A1. They were marked through P.W.3, the father of the deceased. 11.Ex.D4 is the New Year Greetings sent by the deceased to A1. In the said greetings, at several places the deceased had written in her own handwriting expressing exemplary love and affection for A1. At one place she has stated as follows:- "Be kind always you are the luckiest man in this world." At another place she has written among other things, "you are always live in my heart forever and nobody can adjust out life, we both stands in one way, and we both will win our life, without any hesitation, and there will be only one word in our life, success". In yet another place she has written "my life is always for you". At the last page of the said greetings, after expressing her love for A1 in many words, she has concluded like this "my sweet heart, God created you on that day only for me, to share your life with me until for hundred years with full of love and no other words", "my showerness is always for you". This greetings was obviously sent on 01.01.2004. 12.Ex.D.5 is the birthday greetings sent by the deceased to A1. This also runs to four pages. At all pages, she has written many words expressing her deep love and affection for A1. To illustrate, at page 1 she has written as follows, "I love you, I kiss you my darling". In page 2 among other things, she has written as follows, "Be happy forever to live with us for hundred years joyfully". In page 3 she has written as follows, "I thank God who has created my darling on this day to give you as my life partner", "you are the only one who had impressed me more", "A deep lip kiss for my chellam from your wife". 13.Ex.P.6 is a letter written after the birth of the child wherein among other things, she has written as follows, "I am very much eagerly waiting for your arrival and I want to see your face to kiss you and to hug you", "I need your photo [small size] please send immediately", "I love you, I kiss you, I hug you", "I don't know more than than this to express my feelings", "we will start our life with full of love on this New Year, No tears only love, My love on you https://hcservices.ecourts.gov.in/hcservices/ is no more words, it is unmeasureable and at any cause, I won't lost my sweet husband, you are made especially for only one girl, that is me". In the second page of the same letter at one place she has written as follows:- "I want to see you please try to understand your chellam feelings and please come and see me. Really I can't above to be happy without seeing you I just want to see you once. Please come, please come.", "Hai chellam how are you mainly without me. Here I can't able to spend each a second happily without you. Your absence made me so upset for these three days. Dai chellam I am missing you very much. I am not able to close my eyes even for a sleep. You are only the man made me not to sleep when you are not with me. Your absence made me to think there is no meaning to my life to live in this world. Your baby is fighting with me and he is asking me where is my sweet daddy. We both were eagerly waiting for your presence to kiss you. Dai chellam really my love on you is uncountable, unforgettable and unmeasureable." She concludes the last page of the said letter like this:- "I am waiting for this day by when the sun will rise to see my sweetest husband's face. We and our child should live happily for hundred years, without any disturbance. Chellam we have to enjoy our life with emotions of love at height of fright. We should spend a life meaningfully and successfully without any problems in flying colours. I am always thinking about you only for each and every second." At last she has written like this "we should be an example for other couples. No one should live like us in their life." In my considered opinion, the lower court was right in considering these letters to understand the deep love and affection that the deceased had for A1 and vice versa. Had it been true that she was subjected to cruelty to the extent of driving to commit suicide, I am of the view that these words from the deceased would not have come to be expressed by her. Even P.W.4 during cross-examination has admitted tacitly that the deceased told her that she was very happily living with A1. P.W.1 has also admitted during cross- examination that from the letters written by the deceased now he has understood that the deceased was living happily with A1. It could also be seen from the evidence of P.W.3 that P.W.3 stayed at Sivaganga for some time and got the driving license at the instance of A1. All these evidences, more particularly, the letters, would https://hcservices.ecourts.gov.in/hcservices/ go to show that the evidences of P.Ws.3 to 5 that the deceased was subjected to cruelty for demand of dowry, cannot be true. As a matter of fact, the deceased had taken much pains to make drawings on these greetings in her own handwriting, drawing heart, flowers etc., to express her love for A1. Had it been true that she was subjected to harassment, I am sure that she would not have had shown much of love for A1. The trial court has given much weightage for these letters and not to the evidences of P.Ws.3 and 5 and came to a conclusion that it is not safe to rely on the evidences of P.Ws.3 to 5 to hold that the deceased was subjected to harassment for demand of dowry and only due to the same, she committed suicide. The presumption u/s.113-B of the Evidence Act cannot be invoked since the presumption has failed to prove beyond reasonable doubt that the deceased was subjected to harassment. 14.As I have already stated that even in a case where there are two views equally possible, the view taken by the trial court cannot be interfered with. But, in this case, this court does not even find any other view than the view taken by the trial court. Above all, it is in evidence that the father of A1 made settlement of his properties to his other children and the parents of the deceased wanted her to be vigilant to get the property settled in favour of her husband. Probably, because she was not able to be successful since the father of A1 had only few days before her death, settled the properties in favour of the other children, she could have got dejected and committed suicide. This is only a possibility. From out of all the evidences placed on records, it could not even be inferred as to what would have prompted the deceased to commit suicide. But one thing is certain that the prosecution has failed to prove that there was demand for dowry, consequently there was harassment and that the deceased died by committing suicide driven by such harassment. 15.For all the foregoing reasons, I do not find any reason to interfere with the Judgment of the trial court. In the result, the criminal appeal fails and accordingly, the same is dismissed. The order of acquittal recorded by the learned Additional Sessions Judge, Fast Track Court No.III, Poonamallee in SC.No.555/2005 dated 29.03.2006 is confirmed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ap https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional Sessions Judge, Fast Track Court No.III, Poonamallee. 2. do thro the Principal Sessions Judge, Chengalpattu. 3.Deputy Superintendent of Police Valsaravakkam Police Station Chennai. 4.The Public Prosecutor, High Court, Chennai. 1 cc to Mr.S.L. Venkatesan, Advocate, Sr.11852 Crl.A.No.655 of 2006 KU (CO) kk 8/3 https://hcservices.ecourts.gov.in/hcservices/