R.Sadasivam, @Sadasivadhasan v. State by it Deputy Superintendent of Police Kanchipuram Taluk Police Station Kanchipuram

Bail SlipThe Appellant/Accused-1 viz. R.Sadasivam @Sadasivadhasan,S/o. Ramalinga Gounder was directed to be released onbail as per order of this Court dated 4.1.2007 and made inCrl.M.P.No.1/2006 in Crl.RC No.1416/2006.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:22.07.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1416 of 2006R.Sadasivam, @ Sadasivadhasan ... Petitioner/Accused No.1 vs.State by itDeputy Superintendent of PoliceKanchipuram Taluk Police StationKanchipuram(Crime No.236 of 2003)... Respondent/ComplainantPrayer: Petition filed under Section 379 and 401 of Cr.P.C. againstthe conviction and sentence passed in judgment in C.A.No.5 of 2006dated 21.11.2006 on the file of the learned Principal SessionsJudge, Chengalpet, Kanchipuram District, confirming the convictionand sentence passed in S.C.No.420 of 2005, dated 20.12.2005, on thefile of Assistant Sessions Court, Kanchipuram, Kanchipuram District,and praying to set aside the said conviction and sentence and acquitthe petitioner from the charges.For Petitioner : Mr.S.AnanthanarayananFor Respondent : Mr.R.Muniyapparaj,G.A.(crl.side)----- O R D E RAnimadverting upon the order dated 21.11.2006 passed by thelearned Principal Sessions Judge, Chengalpet, Kanchipuram Districtin C.A.No.5 of 2006, confirming the conviction and sentence passedin S.C.No.420 of 2005, dated 20.12.2005, on the file of AssistantSessions Court, Kanchipuram, Kanchipuram District, this criminalrevision is focussed.2. A summation and summarisation of the relevant facts whichare absolutely necessary and germane for the disposal of thisrevision petition would run thus:(a) The police laid the police report in terms of Section 173 https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C. as against the accused for the offences under Sections 498-AIPC r/w Sec.4 of Dowry Prohibition Act and Secs.306 and 304-B ofIPC.(b) Inasmuch as the accused pleaded not guilty, the trial wasconducted and during trial, on the prosecution side, P.Ws.1 to 22were examined; Exs.P1 to P21 and M.Os.1 to 3 were makred. No oral ordocumentary evidence was adduced on the side of the accused.(c) Ultimately, the trial Court recorded the conviction andimposed the sentence as under:--------------------------------------------------------------------Case No.OffencePunishment imposed--------------------------------------------------------------------S.C.No.U/s 498-A IPCTwo yeas Rigorous 420/05imprisonment and fine amount of Rs.3,000/- in default, one month RI.U/s 304(b)IPCSeven years R.I.U/s 4 of D.P.Act six months R.I.,fine amount ofRs.10,000/-, in default, one month R.I.--------------------------------------------------------------------3. Being aggrieved by and dissatisfied with the judgment of thetrial Court, appeal in C.A.No.5 of 2006 was filed for nothing but tobe dismissed by the appellate Court, confirming the judgment of thetrial Court in toto.4. Impugning and challenging the judgments of both the Courtsbelow, this revision has been filed on various grounds, the gist andkernel of them would run thus:Both the Courts below fell into error in appreciating theevidence by applying the proper provisions of law. The evidence ofP.Ws.1, 6 to 8 and 10 being the close relatives of the deceasedshould not have been believed by the lower Court in recording theconviction and imposing the sentences. The non examination ofindependent witnesses is fatal to the prosecution case. Thestatement given by the village panchayatars before the ExecutiveMagistrate would evince and evidence the innocence of the accused.In the absence of any evidence to prove beyond reasonable doubt thatthe accused demanded dowry and harassed the deceased, therecording of conviction as against the accused for those offences inuntenable. Accordingly he prayed for setting aside the judgments ofboth the Courts below and for acquitting him.5. The learned counsel for the revision petitioner reiteratedthe grounds of revision and also developed his argument to theeffect that the statement given by the accused before the ExecutiveMagistrate would show his innocence; at one point of time, heborrowed a sum of Rs.5,000/- from his father-in-law and since he had https://hcservices.ecourts.gov.in/hcservices/ not repaid it immediately, the father-in-law even beat him withchappal and humiliated him to the maximum; even then, he maintainedequanimity and calmness of mind and lived with his wife; theevidence of P.W.8 Dhanalakshmi would evince that the alleged amountsreceived by the accused from his in-laws house was only by way ofloan and if the matter is viewed in that angle, it would not amountto demand for dowry and consequently ingredients of Section 304-BIPC would not be attracted. 6. Whereas the learned Government Advocate (crl.side) byinviting the attention of this Court to various portions of theevidence would develop his argument to the effect that simplybecause the witnesses happened to be the relatives, their evidencecannot be discarded as per the trite proposition of law; thewitnesses cogently and coherently spoke about the demand of dowry bythe accused and just one day prior to the date of the deceasedcommitting suicide, the accused took the deceased to her parentshouse and left her in connection with the dowry demand and thatalone actuated and accentuated, propelled and impelled the deceasedto take the extreme step of extinguishing her life and as such, theingredients of Section 304-B IPC consequently were attracted in thefacts and circumstances of this case. 7. The point for consideration is as to whether there is anyperversity or non-application of law in interpreting the evidence soas to hold that there was dowry death involved in this case and thatharassment was meted to the said deceased by the accused. 8. At the outset, I would like to highlight that Ex.P21 turnedout to be a dubious document and it was correctly rejected by thetrial Court itself. Ex.P21 is alleged to be the photocopy of thesuicide note, which the deceased herself was having it in her handswhile consuming poison. P.W.4, Amsa, is the lady who claimed tohave seen the said act and however, curiously in this case, theInvestigating Officer had not chosen to get the suicide note Ex.P21verified by an handwriting expert by comparing it with the antilitem motem signature as well as handwriting of the deceased. Noone knows as to what happened to the original of Ex.P21. TheInvestigating Officer in matters of this nature, irrespective of thefact whether the accused challenges the genuineness of the suchsuicide note or not, is duty bound to get it verified with the helpof handwriting expert. Be that as it may, both the Courts belowrelied on the other evidence available and recorded the conviction.9. Indubitably and incontrovertibly, unassailably andunarguably, the deceased consumed poison on 02.04.2003 and on theprevious day, i.e. on 01.04.2003, the husband/accused took her fromthe matrimonial home to his in-laws house and left her there, forwhich before the Executive Magistrate the accused himself wouldstate as though on 01.04.2003 he was in a drunken mood and irritatedthe deceased and whereupon, she caught hold of his hair and beather and ultimately, he took her and left her in her parents' house.It is also his case that at one time alone he borrowed a sum ofRs.5,000/- and thereafter, there was no such money transaction at https://hcservices.ecourts.gov.in/hcservices/ all. P.W.1 the brother of the deceased, P.W.6, the mother of thedeceased and P.Ws.7 and 8 the elder sisters of the deceased inunison would depose about the demand of dowry by the accused. Themarriage between the accused and the deceased took place on27.01.2002 as per Hindu Rites and Customs arranged by elders,whereas, the suicide was on 02.04.2003, so to say, well before sevenyears and thereby attracting Sections 113-A and 113-B of the IndianEvidence Act. 10. The raison d'etre of those provisions are to the effectthat if a married woman commits suicide within seven years, it shallbe presumed that she died the death due to harassment meted out toher in the matrimonial home by the husband and other relatives ofthe husband. No doubt, Section 113-A of the Indian Evidence Act isonly relating to attracting Section 306 IPC and also 498-A IPC, andSection 113-B of the Indian Evidence Act is an additional provisionto attract presumptions in respect of dowry death and the demand fordowry. As such, it has to be found as to whether there is anyproximity between deceased/Sumathi committing suicide and the demandfor dowry by the accused. 11. So far committing of suicide by Sumathi is concerned, itis beyond doubt as it is borne by medical evidence, morespecifically Ex.P.3, the post-mortem certificate and the evidence ofthe Doctor. Relating to demand of dowry is concerned, even thoughon the accused's side, their was testimony impeached on the groundthat they are close relatives of the deceased, the catena ofdecisions of the Hon'ble Apex Court would display and demonstratethat only on the ground that the witnesses are relatives, theirevidence should not be discarded. The following decision could becited fruitfully. Certain excerpts from it would run thus:(2009) 2 Supreme Court Cases(Cri) 389 – GURDEV RAJ VS. STATE OFPUNJAB, an excerpt from it would run thus:"14. It also cannot be said that since RajaniBala and Pooja were closely related to deceasedBhushan Lata, their version could not have beenbelieved. In our opinion, the trial Court was whollyright in holding that Rajani Bala and Pooja were nodoubt relatives of the deceased but they could not betermed as 'interested' witnesses. The court was alsoright in further stating that close relatives wouldbe most reluctant to spare the real assailant andwould falsely implicate an innocent person. Afterseeing the demeanour of witnesses, the trial Courtbelieved both of them. The High Court againconsidered their evidence and confirmed the findingrecorded by the trial Court. We see no infirmity inthe approach of the trial court as well as of theHigh Court. It, therefore, cannot be said that bybelieving these two witnesses, any illegality wascommitted by the Courts below." https://hcservices.ecourts.gov.in/hcservices/

12. The very act of demanding dowry itself is relating tofamilial matter which could be known only to family members.Normally no man having head over shoulder would stand on the treetop or roof top and demand dowry to the knowledge of all andsundry; such dowry demands are made secretly and surreptitiously andthat too taking care to see that the persons other than the familymembers are not aware of the same. Wherefore, such non-examinationof the witnesses other than the family members cannot be taken asfatal to the case of this nature. Axiomatically the panchayatarswho gave the statement before the Executive Magistrate might nothave known about it. Simply because those panchayatars did notspeak about dowry demand, no adverse inference can be drawn againstthe relatives who gave evidence about dowry demand.13. The learned counsel for the revision petitioner wouldinvite the attention of this Court to the evidence of P.W.8 and morespecifically, her evidence during cross examination and highlightand spotlight the fact that she during cross examination admittedbefore the police that the accused borrowed several amounts from hisfather-in-law. Whereupon, I, with all seriousness compared the 161Statement of P.W.8 available on record with that of the depositionof the witness, P.W.8. In the 161 statement recorded by thepolice, there is no such version given by P.W.8 that the accusedborrowed as loan from his father-in-law and in such such a case,during cross examination on the accused's side, they were notjustified in putting a suggestion to the witness P.W.8 as though shestated before the police that the accused borrowed on variousoccasions various amounts as loans. It is quite apparent that asper the dictum of the Hon'ble Apex Court in AIR 1959 SC 1012[Tahsildar Singh v. State of Uttar Pradesh] contradictions could bemade out between 161 statement recorded by the police and thedeposition of the witness as per Section 145 of the Indian EvidenceAct and as per Section 161 of Cr.P.C. but imaginary versions shouldnot be put to the witness and try to make out contradiction and thatwould tantamount to misleading the witness as well as the Court andsuch a practice has to be deprecated in unmistakable terms.14. Even P.W.8 in her chief examination clearly stated aboutthe demand of dowry by the accused. The other witness P.W.1,brother of the deceased, P.W.6, the mother of the deceased, P.W.7,one other elder sister of the deceased gave a detailed version thaton several occasions, the accused demanded dowry. In fact, whilethe accused giving his statement before the Executive Magistrate heused certain strong words as against his father-in-law as though hisattempt to give a sum of Rs.30,000/- in the presence of anotherwitness was a sheer attempt to have the accused's mother as hisconcubine etc. and he could have refrained from uttering out such aversion. The accused also for the purpose of wriggling out of hiscriminal liability, went to the extent of suggesting that thedeceased was in illicit intimacy with another person and that mighthave been the cause for committing suicide. I am of the view thatin this factual matrix, such a suggestion is nothing but a barefacedlie, dished out purely for the purpose of exonerating himself fromthe clutches of criminal law. https://hcservices.ecourts.gov.in/hcservices/

15. At this juncture, my mind is redolent and reminiscent ofthe following maxim:De Mortis Nil Nisi Bonum [of the deceased talk nothing]16. Here the husband for saving himself, imputed immorality onthe part of his wife. During her life time, there is nothing toindicate that the husband suspected her fidelity and that there weresome panchayats or some talks over that. Over and above that, evenin his statement before the Executive Magistrate at the earliestpoint of time which he gave after consulting his Advocate, there isno allegation of illicit intimacy on the part of the deceasedSumathi. Wherefore it is clear that the accused dished out such afalse plea as though the wife was having some illicit intimacy withsome other person and that might have caused her to commit suicide.I am fully aware of the fact that the accused is not duty bound toprove beyond doubt his plea. Even preponderance of probabilitieswould be sufficient to prove his innocence, but in this case, theprosecution witnesses narrated incident by incident as to how hewent on extracting money from his in-laws house. It is also a factwhich could be understood from the accused's own statement beforethe Executive Magistrate that on the bride's side, they have notkept up their promise for giving five sovereigns of gold, but theyhad given only 1-3/4 sovereigns of gold jewels to the deceased andthat also was irking the mind of the accused. As such there is noperversity or impropriety in interpreting the evidence by the Courtsbelow and in applying the penal law as against the accused.17. At this juncture, I call up and recollect the followingdecisions of the Hon'ble Apex Court:(i) 2002(6) SCC 650- Bindeshwari Prasad Singh alias B.P.Singhand Others vs. State of Bihar (now Jharkhand) and another; anexcerpt from it would run thus:"13. The instant case is not one where any suchillegality was committed by the trial court. In theabsence of any legal infirmity either in theprocedure or in the conduct of the trial, there wasno justification for the High Court to interfere inexercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a findingdifferent from the trial court. In the absence ofmanifest illegality resulting in grave miscarriageof justice, exercise of revisional jurisdiction insuch cases is not warranted.14. We are, therefore, satisfied that the HighCourt was not justified in interfering with theorder of acquittal in exercise of its revisionaljurisdiction at the instance of the informant. Itmay be that the High Court on appreciation of the https://hcservices.ecourts.gov.in/hcservices/ evidence on record may reach a conclusion differentfrom that of the trial court. But that by itself isno justification for exercise of revisionaljurisdiction under Section 401 of the Code ofCriminal Procedure against a judgment of acquittal.We cannot say that the judgment of the trial courtin the instant case was perverse. No defect ofprocedure has been pointed out. There was also noimproper acceptance or rejection of evidence nor wasthere any defect of procedure or illegality in theconduct of the trial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjeeand Others vs. State of W.B.and others, an excerpt from it would runthus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction,at the instance of the complainant, has to be exercisedby the High Court only in very exceptional cases wherethe High Court finds defect of procedure or manifesterror of law resulting in flagrant miscarriage ofjustice."A bare perusal of the said precedents would demonstrate and displaythat the revisional court is not expected to interfere with thefinding given by both the courts below and if there is anyperversity or non-application of law on the part of both the courtsbelow, the question of revisional court interfering with thefindings would arise. 18. As such, this Court being a revisional Court, in thecircumstances of the case views that no interference with the orderof both the Courts below is warranted.19. The learned counsel for the revision petitioner wouldimplore and entreat that as of now, the accused is studying secondyear law course and if he is made to be in jail, certainly hisfuture would be in doldrums. Here the learned counsel for thepetitioner also tried his level best to convince the Court that theoffence might be recorded under Section 306 IPC and not underSection 304-B IPC so that lesser sentence could be awarded andthereby, the accused would be able to continue his studies. 20. I am of the considered opinion that in the wake of theevidence available, there is no chance to modify the convictionrecorded under Section 304-B IPC into one under Section 306 IPC asthe ingredients vary between the two. However, regarding thesentence is concerned, imprisonment of seven years is a must and insuch a case, it cannot be reduced. So far fine amount is concerned,the lower Court imposed a fine of Rs.10,000/- under Section 304-BIPC and a sum of Rs.3,000/- under Section 498-A IPC. I am of theopinion that taking into account the impecunious and penurioussituation of the accused, the fine amount could be reduced andaccordingly, the fine amount of Rs.10,000/- is reduced to Rs.1,000/- https://hcservices.ecourts.gov.in/hcservices/ (Rupees one thousand only) and similarly the fine amount ofRs.3,000/- is reduced to Rs.1,000/- (Rupees one thousand only) andthe remaining fine amounts if any collected, shall be refunded tothe accused. As such, the revision petition is partly allowed andthe rest of the findings and sentences are confirmed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Assistant Sessions Court, Kanchipuram, Kanchipuram District.2. -do- through The Principal Sessions Judge, Chengalpet,Kanchipuram District.3.The Superintendent,Central Prison, Cuddalore, Cuddalore District.4.The Deputy Superintendent of Police,Kancheepuram Taluk Police Station,Kancheepuram.5.The District Collector,Kancheepuram District.6.The Director General of Police,Chennai.7. The Public Prosecutor, Madras.8.The Section Officer,Criminal Section,High Court, Madras.PKB(CO)km/24.8.Crl.R.C.No.1416 of 2006