State v. 1. Masilamani2. Malarkodi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 31.1.2005C O R A M :THE HONOURABLE MR.JUSTICE N.DHINAKARANDTHE HONOURABLE MR.JUSTICE A.KULASEKARANCRL.A.NO.885 of 1995State rep.by Public Prosecutorfor Pondicherry.... Appellant-vs-1. Masilamani2. Malarkodi... RespondentsPRAYER : Appeal against the judgment of the II Additional SessionsJudge, Pondicherry in S.C.No.45 of 1993 dated 10.4.1995.For appellant :: Mr.A.Suriya Prakasam, APP (Pondicherry)For respondents :: Mr.V.Gopinath, S.C. for Mr.S.Y.Masood ***J U D G M E N T(JUDGMENT OF THE COURT WAS DELIVERED BY N.DHINAKAR, J.)The State is the appellant. The appeal is against theacquittal of the respondents, who are arrayed as A.1 and A.2 inS.C.No.45 of 1993 before the learned II Additional Sessions Judge,Pondicherry. They were tried under Section 4 of the DowryProhibition Act read with Section 34, I.P.C. and Section 498-A readwith Section 34, I.P.C. and also under Section 304-B read withSection 34, I.P.C. The allegation against respondents 1 and 2 isthat both of them subjected the deceased Malarvizhi to cruelty bydemanding dowry, as they asked for jewels and cash and on accountof such demand for dowry, she committed suicide between 10 P.M. on17.10.1992 and 5.00 A.M. on 18.10.1992. The learned trial Judge, onthe recorded evidence both oral and documentary, held that theprosecution has not succeeded in establishing the charges againstthe respondents and, hence, acquitted them. The present appealchallenges the said acquittal. https://hcservices.ecourts.gov.in/hcservices/

2. Before we proceed to consider the appeal, we have to remindourselves of the law laid down by the Supreme Court in variousdecisions. The law is that the order of acquittal shall not beinterfered with because the presumption of innocence of the accusedis further strengthened by acquittal and the golden thread whichruns through the web of administration of justice in criminal casesis that if two views are possible on the evidence adduced in thecase, one pointing to the guilt of the accused and the other to hisinnocence, the view which is favourable to the accused should beadopted and that the paramount consideration of the Court is toensure that miscarriage of justice is prevented. A miscarriage ofjustice which may arise from acquittal of the guilty is no lessthan from the conviction of an innocent. The principle to befollowed by the appellate Court considering the appeal against thejudgment of acquittal is to interfere only when there arecompelling and substantial reasons for doing so.3. The facts that are necessary to dispose of the appeal canbe briefly summarised as follows:-P.W.1 is the father of the deceased and P.W.2 is the mother ofthe deceased. The deceased is the wife of the first respondent andthe second respondent is the sister-in-law of the first respondent,in that she is the co-sister of the deceased. The deceased wasgiven in marriage to the first respondent on 05.9.1991 and at thetime of marriage, she was given 16 sovereigns of gold, householdarticles including a cot worth Rs.10,000/-, a motor-cycle worthRs.10,000/-, besides cash of Rs.20,000/-. They were living happilyfor some time and thereafter the first respondent wanted to sellthe jewels of his wife and this fact was brought to the notice ofthe parents of the deceased by the deceased by writing letters tothem. The deceased also wrote a letter two months prior to the dateof incident to her parents requesting them to give her Rs.6,000/-so that the house which her husband is putting up could becompleted. But her parents, P.Ws.1 and 2, refused to give her anymoney. The deceased also complained to P.W.3 that her husband, whois the first respondent in the appeal, and his sister-in-law, whois the second respondent, are in illicit relationship with eachother and that she is not happy as they are ill-treating her. Whilethe matter stood thus, on 18.10.1992, a wireless message wasreceived by P.W.1 that his daughter is dead. Thereafter, he went tohis daughter's house at Kalapet taking along with him his wife,P.W.2. On reaching the house of his daughter, he saw her daughter'sbody lying on a cot. In the meantime, the first respondent went tothe police station and gave a complaint, Ex.P.9 to P.W.6, the HeadContable, Kalapet Police Station at 8.30 A.M on 18.10.1992. On thecomplaint, Ex.P.9, a case was registered in Crime No.101 of 1992under section 174, Cr.P.C. Ex.P.10 is a copy of the printed firstinformation report and investigation was taken up by P.W.7, the https://hcservices.ecourts.gov.in/hcservices/ Sub-Inspector of Police attached to Kalapet Police station. He wentto the scene of occurrence accompanied by women police constablesto assist him and also sent a requisition to P.W.5, Tahsildar to goover to the spot to conduct inquest. Accordingly, P.W.5 reached thescene of occurrence and conducted inquest in the presence ofpanchayatdars, during which the first respondent and P.Ws.2 and 3were examined. Their statements were recorded. The inquest reportis marked as Ex.P.8, which contains the opinion of the thepanchayatdars that the deceased died by committing suicide onaccount of the first respondent not purchasing her a new saree andon account of his refusal to allow her to take up a job. After theinquest, a requisition was sent to the hospital along with the bodyfor conducting autopsy.4. On receipt of the requisition, P.W.4, the Junior Specialistattached to the Government General Hospital, Pondicherry, conductedautopsy and found the following injuries on the body ofMalarvizhi :-"tongue protruded, wearing green cotton saree,black petticoat, green coloured blouse, incompleteoblique ligature mark 17 cm x 1 cm present overright side and front of neck. On right side ofneck, the ligature mark in 8 cm below mastoidprominence and over front of neck, the ligaturemark is above thyroid cartilage and ends 7 cmsbelow left mastoid prominence on left side ofneck. On dissection over the ligature mark it ispale, parchment like and antemortem in nature".The doctor issued Ex.P.5, the Post-mortem Certificate and gave hisfinal opinion under Ex.P.7 opining that death was on account ofasphyxia due to hanging.5. P.W.7, in the meantime, altered the crime to one underSection 304-B, 498-A read with Section 341, I.P.C. and sent arequisition to the Sub-divisional Magistrate, Pondicherryrequesting him to transfer all the relevant records to the Court ofJudicial First Class Magistrate, Pondicherry. Further investigationin the crime was taken up by P.W.8, the Superintendent of Police.6. P.W.8, on taking up investigation in the crime, on02.11.1992 examined P.Ws.1 and 2. Ex.P.1, a letter written by thedeceased was handed over to him by P.W.1. The same was seized. Atabout 2.00 P.M. on the same day, the respondents were produced andthey were arrested. He conducted the house search of the firstrespondent and seized three pawn tickets, Ex.P.14 series,indicating the pledging of jewels. He also seized Ex.P.15, anotebook containing 15 written pages and Ex.P.16, a member cardissued in favour of the first respondent by the Pondicherry Co- https://hcservices.ecourts.gov.in/hcservices/ operative Union Bank. They were seized under a mahazar Ex.P.17, thesearch list. On 11.11.1992, he examined P.W.2 and other witnesses.On that day, Ex.P.3 was handed over by P.W.2, which was seizedunder a mahazar Ex.P.4 in the presence of witnesses. On 12.11.1992,he examined P.W.3 and his statement was recorded. He gave arequisition to the Judicial First Class Magistrate, Pondicherry on17.11.1992 to send Exs.P.1 and P.15 to the handwriting expert atHyderabad. P.W.9, the handwriting expert, after examining the twodocuments, Exs.P.1 and P.15 and comparing them with the admittedsignatures of the deceased, gave his opinion that they were writtenby one and the same person. Ex.P.19 is the report of thehandwriting expert. On 03.3.1993, the investigation was taken up bythe successor of P.W.8 after his transfer, and the final report wasfiled against the respondents on 19.4.1993.7. The respondents were questioned under Section 313, Cr.P.C.on the incriminating circumstances appearing against them. Theydenied all the incriminating circumstances and marked Ex.D.1, theletter dated 22.5.1992 written by P.W.1 to the first respondent aswell as to his daughter, who is the deceased.8. Now we have to consider whether the reasons given by thetrial Judge while acquitting the accused are justified and whetherthose reasons are so perverse for this Court to interfere with theacquittal. As we have already stated the law on the subject, thisCourt is expected to consider the evidence and if this Court findsthat two views are possible one in favour of the respondent-accusedand the other in favour of the prosecution and if the trial Courthad taken the view in favour of the respondent-accused, then thiscourt should not interfere with the order of acquittal.9. The learned trial Judge acquitted the respondents on theground that the witnesses who were examined during inquest by P.W.5did not mention that the respondents were demanding dowry eitherfrom them directly or through their daughter and that they had comeout with the present version for the first time in Court. We haveperused the inquest report, Ex.P.8 containing the opinion expressedby the panchayatdars and it shows that the deceased Malarvizhicommitted suicide on account of the first respondent not purchasingher a new saree and not allowing her to take a job. In the reportit is nowhere mentioned that both the parents complained toTahsildar that the first respondent was demanding dowry andsubjecting her to cruelty. This could be seen from column 16 of theinquest report, Ex.P.8. Similarly when we perused Ex.P.15, thediary written by the deceased, which when compared with theadmitted signatures and the handwriting of the deceased by P.W.9,it could be seen that the first respondent was only asking his wifeto get back the jewels which were retained by her parents and thatshe was not happy with the conduct of her husband in taking drinksand further she was also unhappy because she was abused by her https://hcservices.ecourts.gov.in/hcservices/ husband calling her as 'a woman who could not conceive'. In thefinal portion of Ex.P.15, she has stated that on account of herunhappy life, the best way for her is to die. It does not show asto when she wrote the contents of Ex.P.15. A perusal of Ex.P.1, theletter written by the deceased to her mother, P.W.2 also shows thatsince the house which she and her husband are constructing couldnot be completed for want of funds, she needs a sum of Rs.2000/-and, therefore, they must give Rs.2000/- to them, so that theconstruction of the house could be completed. Before concluding theletter, she has stated that she is living happily with her husband.Though she has stated in one paragraph of the letter that herhusband is a short-tempered person, she has stated that she isliving happily with her husband. A perusal of the entire letter,Ex.P.1 clearly indicates that the deceased was in dire need of asum of Rs.2000/- to complete the construction of the house and,hence, wrote a letter to her mother seeking her help. It is,therefore, clear that neither Ex.P.1 written by the deceased to hermother, P.W.2 nor Ex.P.15, which was written by the deceased in adiary, shows that there was a demand of dowry either by the firstrespondent or by the second respondent. The learned trial Judgealso took into consideration the evidence of P.W.1 and came to theconclusion that though P.W.1 had given evidence in Court that a sumof Rs.5,000/- was demanded by the first respondent and, therefore,the deceased wrote a letter, he did not say so, when he wasexamined and his statement was recorded under Section 161, Cr.P.C.and that the prosecution also did not produce the letter alleged tohave been written by the deceased to P.W.1. The learned trial Judgealso found that the deceased when found without any jewels by P.W.1and on being questioned by him he was informed by her that she haspledged the jewels in order to construct a house and that she alsowanted from P.W.1 a further sum of Rs.6000/-, which made P.W.1angry who refused to give any amount to the deceased. The evidenceof P.W.2 was also rejected by the trial Court on the ground thatthough in her evidence she has stated that she gave 17 sovereignsof gold besides cash and household articles and the firstrespondent was asking for the balance four sovereigns, she did notmention anything about the demand of four sovereigns by the firstrespondent in her statement recorded under section 161, Cr.P.C. andthat both P.Ws.1 and 2 have been developing the case from stage tostage in order to bring the respondents within the ambit of Section304-B, I.P.C. The learned trial Judge also adverted to theevidence of P.W.2 and stated that though the deceased had writtenseveral letters, she did not mention in any of the letters that thefirst respondent or the second respondent has been demanding dowryand, therefore, their evidence cannot be taken on their face value.The learned trial Judge, relying upon the letter Ex.D.1, dated22.5.1992 had come to the conclusion that the deceased who went tothe house of her parents returned to her husband's house on08.10.1992 and died on 17.10.1992 and there is no material as towhat happened between 22.5.1992, the date on which Ex.D.1 was https://hcservices.ecourts.gov.in/hcservices/ written and 17.10.1992, the date on which she died. In the absenceof any material as to what transpired between 22.5.1992 and17.10.1992, the learned trial Judge considered that for therespondents to be found guilty under Section 304-B, I.P.C. theprosecution should establish that soon before her death, thedeceased was subjected to cruelty and the prosecution not havingsucceeded in establishing that soon before her death she wassubjected to cruelty, the prosecution has to fail. The SupremeCourt, while considering the provisions of Section 304-B, I.P.C.held that there should be perceptible nexus between her death andharassment or cruelty inflicted on her and that it is not enoughthat harassment or cruelty was caused to the woman with a demandfor dowry at some time, if Section 304-B is to be invoked. But itshould have happened 'soon before her death' and the said phrase,no doubt, is an elastic expression and can refer to a period eitherimmediately before her death or within a few days or even a fewweeks before it. But the proximity to her death is the pivotindicated by that expression and the legislative object inproviding such a radius of time by employing the words "soon beforeher death" is to emphasize the idea that her death should, in allprobabilities, have been the aftermath of such cruelty orharassment. In other words, there should be a perceptible nexusbetween her death and the dowry related harassment or crueltyinflicted on her. The Supreme Court went on to add that if theinterval elapsed between the infliction of such harassment orcruelty and her death is wide, the Court would be in a position togauge that in all probabilities the death would not have been theimmediate cause of her death. In any event, the evidence whichhave been let in by the prosecution, which we have discussed above,show that for the first time, the witnesses in Court have statedthat there was a demand of dowry and had no case either before theMagistrate or during investigation stating that either the firstrespondent or the second respondent was demanding dowry andsubjecting the deceased to cruelty.10. On a perusal of the evidence recorded by the trial Courtand the reasons given by the learned trial Judge, we find that itis not a case where this Court can interfere with the order ofacquittal since the reasons given by the trial Judge are notperverse requiring interference. The appeal deserves to bedismissed and it is accordingly dismissed. jsSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The II Additional Sessions Judge, Pondicherry.2. -do- through the Principal Sessions Judge, Pondicherry. 3. The District Collector, Pondicherry.4. The Inspector General of Police, Pondicherry.5. The Public Prosecutor, Pondicherry.6. The Superintendent, Central Prison, Pondicherry.+ 1 cc to Mr.S.Y.Masood, Advocate in SR 3834+ 1 cc to Sr. GP- cum- Sr. PP (Pondicherry) in SR 3798.CRL.A.NO.885 of 1995KSJ(CO)SR/9.2.2005