IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.1654 of 2002 1. Palanisami 2. Ramathal 3. Kanagaraj .. Appellants Vs. The Deputy Superintendent of Police, Udumalpet, Coimbatore District, Udumalpet Post, Cr.No.499/2000, Udumalpet P.S. .. Respondent Criminal Appeal against the judgment of conviction and sentence in S.C.No.367 of 2001 on the file of the Sessions Court, Magalir Neethimandram, Mahila Court, Coimbatore. For appellants : Mr.S.Muthukrishnan for A-1 A-1 died. Mr.R.John Sathyan for Mr.K.Thilageswaran for A-2 & A-3 For respondent : Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment of conviction and sentence in S.C.No.367 of 2001 on the file of the Sessions Court, Mahalir Neethimandram, Mahila Court, Coimbatore, whereby the appellants/A.1 to A.3 were convicted for the offence under Section 304-B IPC and each sentenced to undergo seven years' rigorous imprisonment, the appellants were also convicted for the offence under Section 498-A IPC and each sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to undergo six months' simple imprisonment and they are also convicted for the offence under Section 4 of the Dowry Prohibition Act and each sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo two months' simple imprisonment. A-4, A-5 and A-6 were acquitted of the charges. 2. During the pendency of the Criminal Appeal, the first appellant/A.1 died and hence, the Criminal Appeal abates as far as A.1 is concerned. 3. The case of the prosecution is as follows: (a) The deceased Thamizhselvi is the wife of A-3 Kanagaraj. A-1 and A-2 are the parents of A-3 Kanagaraj. The marriage between A-3 Kanagaraj and the deceased Thamizhselvi was celebrated on 12.12.1999. A-4 and A-5 are the sisters of A-3. A-6 is the brother of A-3. (b) P.W.1 is the father of the deceased Thamizhselvi. P.W.2 is the mother of the deceased Thamizhselvi. P.Ws.3, 4 and 5 are her brothers. All of them have deposed that on 12.12.1999, the marriage between A-3 and the deceased was celebrated and at the time of marriage, seven sovereigns of gold jewels and silver ornament (M.Os.1 to 8) and other utensils were given as "Seervarisai". After marriage, both were living happily for three months and after that, the deceased was ill-treated and harassed for insufficient dowry by A-1 to A-6. (c) P.W.1 deposed that whenever the deceased was subjected to harassment of dowry, he agreed to pay Rs.10,000/- and when the matter was pacified by the neighbours, then only, she went to matrimonial home. Then, both the son-in-law (A-3) and her daughter, the deceased were invited for "Aadi" festival. They came and P.W.1 gave dresses for them. After that, when he was at Vaadipatti Temple, then only he came to know that his daughter was not doing well and she went to hospital at Udumalpet and saw the dead body of the deceased Thamizhselvi. P.W.1 stated that his daughter committed suicide only due to ill-treatment and cruelty of the accused persons and persistent demand of dowry. (d) P.W.2, the mother of the deceased, identified that the gold/silver jewels (M.Os.1 to 8) were given at the time of the marriage of her daughter, the deceased. They subsequently went to the place where her dead body was kept. (e) P.W.1, the father of the deceased gave complaint (Ex.P-1) to P.W.16 Sub-Inspector of Police and a case was registered in Cr.No.499 of 2000 under Section 174 Cr.P.C. for suspicious death. Sine the death has taken place within seven years of marriage, P.W.16 S.I. Of Police sent the FIR for inquest and to the higher officials. (f) P.W.17 Sub-Collector of Pollachi received the FIR and inspected the place of occurrence and conducted inquest in the presence of Panchayatdars, relatives and villagers and went to Government Hospital, Udumalpet and conducted inquest. Ex.P-8 is the inquest report. (g) P.W.17 Sub-Collector examined P.Ws.1 to 5 and A-1 to A-3 and others and sent a report Ex.P-9 to higher officials stating that the death is not due to dowry harassment, but there is suspicion in the death and he requested the Deputy Superintendent of Police to conduct investigation. (h) After the inquest, the dead body was sent for post-mortem. P.W.13 Dr.Gnanavel and P.W.14 Dr.Mariammal conducted autopsy. Ex.P-5 is the post-mortem certificate and the Doctors have stated the following injuries in Ex.P-5 post-mortem certificate: "Appearances found at the post-mortem: Moderately nourished body lies on back Arms Close to sides Black skin and iris eye lids-closed. Frothy discharge from nose. Tongue inside. Jaws clenched. Teeth 8 | 8 8 | 8 No discharge from ears. Rope mark. It is between chin and larynx. It is obligue Move prominent in front & sides of neck then back. The mark is absent at the back may be due to hair between liybim & stan. It is one inch in breadth. Base of the mark is pale. On dissection substaneous tissues is white & glistening. Pelechid haemarhugs adjacent to ligotue marks (confirm i.e. done doing lift). No ext injuris seen. Neck muscles-Normal. Hyoid: Intact Heart: 300 gms contains to 10 ml of fluid blood. Lungs: Rt 480gm x Lt 440g, congested. Stomach contains 50 ml of brown fluid. Hyoid Intact Liver 1000 gms congested spleen 110 gm congested. Kidneys 110 gms congested Intestine, digested with gas bladder empty. Uterus 8 gms size cicks focity. Membrane & skull Intact Brain 1000 gm congested. Following articles send for chemical analysis. 1. stomach & contents 2. Intestine & contains, 3. Liver, 4. Kidney 5. Sdestin Sodium chloride." (i) P.W.18, the then Deputy Superintendent of Police examined the other witnesses. He went to the place of occurrence and prepared Ex.P-2 observation mahazar and drew Ex.P-10 rough sketch. He altered the offence under Section 174 Cr.P.C. into one under Sections 304-B and 498-A IPC and sent the altered report on 22.8.2000 and he examined the other witnesses. On 23.8.2000 at 11 am, he arrested A-1 to A-3 and A-6 near the house where the occurrence took place and remanded them to judicial custody. It is stated that A-4 and A-5 obtained anticipatory bail. (j) The investigating agency investigated the matter and completed the investigation and the charge sheet was filed against the accused for the offences under Sections 304-B and 498-A IPC and Section 4 of the Dowry Prohibition Act. 4. The trial Court framed necessary charges and the accused pleaded not guilty. Before the trial Court, P.Ws.1 to 18 were examined, Exs.P-1 to P-12 were marked and M.Os.1 to 13 were produced. The trial Court came to the conclusion that A-4 to A-6 are not guilty of the offences and they were exonerated and acquitted of the charges. A-1 to A-3 were found guilty for the offences and convicted and sentenced as indicated above. Against that, the present Criminal Appeal has been preferred by the appellants-A.1 to A.3. 5. Challenging the conviction and sentence, learned counsel for the appellants contended that there is no evidence to show that there was demand of dowry and the excess jewels and further payment of money. That fact has not been considered by the trial Court. Learned counsel further stated that P.Ws.1 to 5 are the parents and brothers of the deceased Thamizhselvi and no independent witness was examined. Learned counsel further submitted that P.W.17 Sub-Collector conducted inquest and enquiry. At that time, he has given an opinion that the death of the deceased was not due to dowry demand and this fact has not been considered by the trial Court. 6. Learned counsel for the appellants further contended that the evidence of P.Ws.1 to 5 are not corroborating with the evidence first given to P.W.17 Sub-Collector. So, that fact has not been considered, because P.W.17 alone first examined all the witnesses and at that time, they have not made any whisper about the demand of dowry by the accused. Learned counsel further submitted that the conduct of the accused has proved that they were not demanding dowry, because, as soon as the occurrence was over, A-3 took the deceased to the hospital and A-1 intimated the fact to the relatives of the deceased. Till the enquiry, they were present in the place of occurrence. They co- operated with the enquiry conducted by P.W.17 Sub-Collector. 7. Learned counsel for the appellants further submitted that the marriage between A-3 and the deceased was celebrated on 12.12.1999 and the death of the deceased took place on 20.8.2000 and in between, she underwent natural abortion twice and at that time, A-1 to A-3 alone have taken care of the deceased and P.W.2, the mother of the deceased has not even taken care to come to hospital to see her daughter. If really the deceased was subjected to demand of excess jewels and money, the accused would not have taken care of her. All these aspects have not been considered by the trial Court. It is for the first time P.W.3, the brother of the deceased stated that he had paid Rs.5,000/- to the deceased. His evidence is only after the death and he is only a coolie worker and hence, he was not in a position to pay that amount and only to robe these accused in the offence, such evidence has been adduced. That has not been considered by the trial Court. 8. Learned counsel for the appellants further contended that P.Ws.13 and 14, the Doctors have in their post-mortem certificate not stated any external injury except rope mark in the neck, which has clearly proved that the deceased was not subjected to any dowry demand or harassment at the hands of the accused herein. 9. Learned counsel further submitted that after receipt of report from P.W.17 Sub-Collector, the case has been altered from Section 174 Cr.P.C to one under Sections 304-B, 498 IPC and Section 4 of the Dowry Prohibition Act. The rough sketch and the observation mahazar contain the provisions of law even on 20.8.2000 and so, these documents are concocted after the altered report has been filed. 10. Learned counsel for the appellants mainly focussed on the evidence of P.W.2, the mother of the deceased, who in her evidence has stated that her daughter, the deceased and her son-in-law came to their house for "Aadi" festival (Aadi Nonbu) and they left their house happily. After that only, the incident has taken place and so, there is no evidence to show that the deceased was subjected to dowry harassment. The trial Court has committed error and convicted the accused. Learned counsel further submits that the evidence of P.Ws.1 to 5 is that the son-in-law demanded money for improving his business/shop and so, it will not come under the purview of "dowry" and to substantiate the same, learned counsel for the appellants relied upon the decisions of the Supreme Court reported in 1997 (9) SCC 759 (Sham Lal Vs. State of Haryana) and AIR 2007 SC 763 (Appasaheb Vs. State of Maharashtra) and urged that when once the prosecution proves the demand of dowry, then only presumption under Section 113-B of the Indian Evidence Act has to be invoked. Here, the prosecution has not proved the same. Learned counsel for the appellants prayed for acquittal of the accused and to exonerate the appellants from the charges levelled against them. 11. Learned Government Advocate appearing for the respondent would contend that the alleged marriage took place on 12.12.1999 and the deceased committed suicide by way of hanging on 20.8.2000; that P.Ws.1 to 5, who are the parents and brothers of the deceased, have candidly deposed before the trial Court, stating that three months after marriage, they were living happily and after that, there was demand of excess jewels and money and that the evidence of P.Ws.1 to 5 corroborate with each other. There is no reason for discarding their evidence. Even though it was stated that the deceased underwent abortion twice and she was having stomach pain, but no medical evidence has been produced before Court. Since the evidence of P.Ws.1 to 5 is proved that she was subjected to dowry demand and that the occurrence has taken place at the house of A-1 to A-3, as per Section 113-B of the Indian Evidence Act, they have to give explanation as to why suicide has taken place. 12. Learned Government Advocate relied upon the decision of the Supreme Court reported in 2004 SCC (Cri) 2077 (Dhian Singh Vs. State of Punjab) and submits that since the occurrence has taken place at the matrimonial home, only the inmates of the family are competent persons to give explanation for commission of offence. But they have not given any explanation and the deceased was subjected to dowry demand. Learned Government Advocate also relied upon the decisions of the Supreme Court reported in 1997 Cri.L.J. 1927 (Sham Lal Vs. State of Haryana) and 2005 SCC (Cri) 511 (Kamesh Panjiyar Vs. State of Bihar) and submitted that there is evidence to show that soon before the death of the deceased, she was subjected to dowry harassment. Learned Government Advocate also relied on the decision of the Supreme Court reported in 1997 Cri.L.J. 1640 (Balram Prasad Agrawal Vs. State of Bihar) in support of his contentions. 13. Learned Government Advocate further submits that the deceased herself has intimated the fact to the parents that she was subjected to harassment to meet out the dowry demand. That factum has been correctly considered by the trial Court and it came to the correct conclusion. Learned Government Advocate prayed for dismissal of the appeal and confirmation of the conviction and sentence imposed on the appellants-accused. 14. Admittedly, the factum of marriage which took place on 12.12.1999 has been accepted. The death took place by way of hanging on 20.8.2000. During the "Aadi Nonbu", the deceased was at her parental home. It is admitted by both sides that both the deceased and A-3 went for "Aadi Nonbu" to P.W.1's house. At that time, they were presented clothes. Then, both left for their matrimonial home. But after few days, she committed suicide by hanging. P.Ws.13 and 14 Doctors have proved that the death of the deceased is suicidal by hanging, by way of marking Ex.P-5 post-mortem certificate. 15. The point to be decided is whether the trial Court is correct in holding that the deceased Thamizhselvi was subjected to cruelty and dowry demand, which forced her to commit suicide by hanging and whether it was proved by the prosecution. It is pertinent to note that in such cases, we cannot expect eye-witness for each and every demand, because, it is between spouses and in-laws inside the house and no outsiders or neighbour will poke their nose into the affairs of the neighbour and tell something. In such circumstances, non-examination of the independent witness will not be fatal to the case of the prosecution. 16. The best evidence is the persons who had met the dowry demand, namely the parents and brothers of the deceased. Learned counsel for the appellants would rely upon the evidence of P.Ws.1 to 5. Learned counsel for the appellants relied upon the evidence of P.W.1, who in his evidence, stated that after the marriage, the deceased and A-3 came for "Thai Nonbu" and during that time, they have not given any "Seer". During "Aadi Nonbu" alone, they have given clothes on their own accord. Learned counsel culled out the following portion from the evidence of P.W.1 in his cross examination: VERNACULAR (TAMIL) PORTION DELETED 17. It is pertinent to note from the evidence of P.W.1, the father of the deceased, that even the marriage has taken place on 12.12.1999 and "Thai Nonbu" was in January 2000 and during that time, they have not given any "Seer". P.Ws.1 to 5 have fairly conceded that after the marriage, for three months, both the spouses were living happily. In such circumstances, the demand of dowry has not been proved. 18. Besides that, P.W.1 himself has stated that the accused never demanded any money and jewels. In his evidence, P.W.1 has further stated during cross examination that, VERNACULAR (TAMIL) PORTION DELETED He also fairly conceded in his evidence in cross examination that during the enquiry by P.W.17 Sub- Collector, after the death of his daughter, he has not stated anything about the Panchayat and in the Panchayat, he has accepted that he is ready to give jewels and cash. 19. P.W.2, the mother of the deceased, in her evidence stated that since A-3 has stated that since they have not taken the bride from wealthy family, he is unable to get good dowry. She fairly conceded that she has not intimated the same to P.W.17 Sub-Collector during his inquest and enquiry. She further stated that she has also not intimated the fact to P.W.17 Sub-Collector that her son-in-law has demanded Rs.10,000/-. 20. Learned counsel for the appellants would cull out some portion of the evidence of P.W.2 and stated that the mother has not taken care of her daughter even though she underwent abortion twice and she has not even taken care of her when she was at hospital. P.W.2 in her evidence, in cross examination, has stated as follows: VERNACULAR (TAMIL) PORTION DELETED 21. While considering the above evidence of P.W.2, it is seen that 4 or 5 days before the death of the deceased, P.W.2 went to her daughter's house and at that time, the deceased disclosed that she underwent abortion and she was not doing well and that P.W.2 has not taken care of her. Learned counsel for the appellants would focus upon this portion and stated that since the second child of the deceased also got aborted, she was not doing well and she was in depressed mood and she has gone to the extent of committing suicide. 22. P.W.3 is none other than the brother of the deceased. He has stated in his evidence that his sister was assaulted by the accused demanding dowry and thrown out of the house after "Aadi Nonbu". He also stated that there was a Panchayat and this factum has been deposed before the enquiry by R.D.O. and the Police. He has further stated that after he visited the hospital, he has not given any complaint stating that her sister died due to dowry death. 23. P.W.4, another brother of the deceased, in his evidence, has stated that to expand the business, they demanded Rs.10,000/- and harassed his sister. He has stated that the factum has been intimated in the enquiry. 24. P.W.5, another brother in his chief examination, stated that when once his sister came to her parents' house, she stated that there was a problem at her house, and that her husband and in-laws, i.e. husband, father-in-law, mother-in-law, sister-in-law and brother-in-law were demanding further jewels and cash for expanding the business. In his evidence, he has stated that two months before his sister's death, the accused was demanding further jewels and cash for expansion of business. 25. It is pertinent to note that P.W.17 Sub-Collector has conducted the inquest and examined P.Ws.1 to 3 on 21.8.2000 and also the accused and P.W.17 came to the conclusion that there was no dowry demand, but since P.W.17 was suspecting the death of the deceased, he requested the D.S.P. to conduct the investigation. At this juncture, it is appropriate to consider the statement of the prime witnesses, P.Ws.1 to 5, under Section 161 Cr.P.C. The statement of P.W.1 Arumugham was alleged to have been recorded by the investigating agency on 20.8.2000 and his further statement was alleged to have been recorded on 7.9.2000 and the same were received by the Court only on 1.12.2000. Likewise, P.W.2 Kannammal was alleged to have given her statement on 20.8.2000 and her further statement was also alleged to have been recorded on 7.9.2000 and the same were received by the Court only on 1.12.2000. Moreover, the statements of P.Ws.3, 4 and 5 under Section 161 Cr.P.C., were alleged to have been recorded on 20.8.2000 / 21.8.2000 and they have been received by the Court only on 1.12.2000. It is pertinent to note that in the case of dowry death, as soon as the statement under Section 161 Cr.P.C. is recorded by the investigating agency, then and there, it has to be forwarded to the concerned Court. But there was long delay in despatching the statement of the witnesses under Section 161 Cr.P.C., to the Court. Admittedly, P.W.17 Sub- Collector has examined the witnesses on 21.8.2000 and at that time, P.W.1 has not stated about the Panchayat in respect of the demand of dowry. P.W.2 also fairly conceded that whatever she has stated before the Inspector of Police, has not been stated before P.W.17 Sub-Collector. It has clearly proved that Section 161 Cr.P.C. statements alleged to have been recorded on 20.8.2000, 21.8.2000 and 7.9.2000, have not been despatched to the Court then and there. This is fatal to the case of the prosecution. Since the statement under Section 161 Cr.P.C. is material document, it should reach the Court then and there. So, the evidence of P.Ws.1 to 5 is not trustworthy. 26. Learned counsel for the appellants would contend that it is true that the appellants have not assigned any reason as to why the deceased committed suicide, even though they were living in one and the same roof. P.Ws.1 to 5 have deposed in the R.D.O. enquiry that they came to know that it is not dowry death and so, the demand of dowry has not been proved. Since the death was by suicide, the presumption under Section 113-B of the Indian Evidence Act will not be invoked. 27. As already stated, during the first enquiry conducted by P.W.17 Sub-Collector, no one has deposed that the deceased Thamizhselvi has committed suicide due to harassment of demand of dowry. P.Ws.1 and 2's evidence is not supporting the case of the prosecution. But P.W.3, the brother of the deceased, stated that the Panchayat was convened and in that Panchayat, it was agreed to pay excess jewels and cash. But that factum has not been intimated in the R.D.O. Enquiry. P.W.3 has further stated in his evidence that he has paid Rs.5,000/-. It is pertinent to note that in P.W.2's evidence in cross examination, she has accepted that 4/5 days prior to her daughter's death, she went to her daughter's house and at that time, she has intimated that the pregnancy of the deceased was aborted and that she was not doing well and P.W.2 has not taken care of her in the hospital. At that time, no evidence has been shown that the deceased was subjected to dowry demand. Moreover, P.Ws.3 to 5 have stated that the demand has been made to expand the business only. In such circumstances, it is appropriate to consider the decision relied upon by the learned counsel for the appellants in AIR 2007 SC 763 (cited supra), wherein, it has been held as follows: "A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. As per the definition of 'dowry' as given in 1961 Act, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking or property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning." 28. As already discussed, the