Sasikumar v. STATE:rep. by The Inspector of PoliceP.2 Otteri Police StationChennai.12.(Crime No.1201/1997)

Bail SlipThe Appellant/1st Accused was directed to be released on bail by theorder of this Court dated 14.02.2002 and made in Crl.M.P.No.644/02.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.08.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No.930 of 2001 Sasikumar .. Appellant/accused vsSTATE:rep. by The Inspector of PoliceP.2 Otteri Police StationChennai.12.(Crime No.1201/1997).. Respondent/complainant This appeal is filed against the Judgment made in S.C.No. 546of 1999 dated 02.03.2001 on the file of the VII Additional SessionsJudge, Chennai. For appellant : Mr.R.C.Paul Kanagaraj For respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor. JUDGMENT This appeal has been preferred against the Judgment in S.C.No.546of 1999 on the file of the VII Additional Sessions Judge, Chennai.

The short facts of the case of the prosecution sans irrelevantparticulars are, that the marriage between the first accused and thedeceased Sujatha took place on 08.09.1995 and at the time of marriage, the deceased Sujatha was presented with 20 sovereigns of gold ornamentsby her parents and after her marriage, it is the case of the prosecution https://hcservices.ecourts.gov.in/hcservices/ that the deceased Sujatha was subjected to dowry harassment and she wasinsisted to bring Rs.one lakh more towards dowry and due to the unbearablecruelty and harassment met at the hands of the accused/appellant, thevictim had took an extreme step of committing suicide by hanging on13.07.1997 at 15.30 hours and hence the accused have been charged under Sections 498A and 304 (B) IPC and under Section 4 and 6 (2) of DowryProhibition Act 1961. Taking cognizance of the case, learned XMetropolitan Magistrate, Egmore, Chennai issued summons to the accusedand on their appearance issued copies of documents under Section 207 of Code of Criminal Procedure and since the case is exclusively triable bythe Court of Sessions committed the case for trial to the Court of Sessions under Section 209 Cr.PC.

On appearance of the accused, learned Sessions Judge/VIIAdditional Sessions Judge, City Civil Court, Chennai has framed chargesagainst the accused as indicated above and when the accused werequestioned, they pleaded not guilty.

Before the trial Court, P.Ws 1 to 14 were examined. Exs. P1 to P17were exhibited and M.O. 1 was marked.

P.W.1 is the father of the deceased Sujatha who was his thirddaughter. According to him, the marriage between the first accusedSasikumar and the deceased Sujatha was solemnised on 08.09.1995 and at thetime of marriage, he had presented 39 sovereigns of gold ornaments, 2 kilograms of silver articles and house-hold articles to the value ofRs.50,000/-, 10 sovereigns of gold chain and Rs.10,000/- towards theapparels of the bridegroom and both A1 and her daughter Sujatha livedhappily thereafter for nearly three months and on the first Deepavali hehas also presented gold ring weighing one sovereign to A1. P.W.1 wouldfurther state that A1 was conducting Optical Shop and in order to expandthe shop, he demanded Rs.50,000/- as an additional dowry. But he hasreplied that he is not in a position to give Rs.50,000/- at present and hewill try to give later. P.W.1 would state that even in his presence thefirst accused had beat the deceased Sujatha and that they were residing at Devraja Mudali street, Patalam and that the couple were blessed with achild.

When incriminating circumstances under Section 313 Cr.P.C. wereput to the accused, they would deny their complicity with the crime.

After scanning the evidence both oral and documentary, thelearned VII Additional Sessions Judge, City Civil Court, Chennai, hascome to the conclusion that A.1 alone is liable to be convicted under Section 304(B) and 498-A IPC and under Section 4 of the Dowry ProhibitionAct and accordingly convicted and sentenced A1 to undergo 7 years RI under Section 304(B), one year RI under 498A IPC, and slapped fine ofRs.1000/- with default sentence and one year RI under Section 4 of the Dowry Prohibition Act. The learned trial Judge has acquitted A2 form allthe charges levelled against her and also relieved A1 from the chargeunder Section 6(2) of Dowry Prohibition Act. A3 died pending trial. Aggrieved by the findings of the learned trial Judge, the 1st accused haspreferred this appeal. https://hcservices.ecourts.gov.in/hcservices/

Now the point for consideration in this appeal is whether theconviction and sentence against the appellant/A1 under Sections 304(B)and 498A IPC and under Section 4 of the Dowry Prohibition Act would besustainable for the reasons stated in the memorandum of appeal?9. Heard Mr. R.C.Paul Kanagaraj, learned counsel appearing for theappellant and Mr.V.R.Balasubramaniam, learned Additional PublicProsecutor for the respondent and considered their respective submissions.

The Point: Mr.R.C.Paul Kanagaraj, the learned counsel appearing for theappellant would focus the attention of this Court, the discrepanciescrept in the evidence of P.Ws.1 and 2 regarding the demand of dowry by A1.According to P.W.1, A1 had demanded Rs.50,000/- at the first instanceover and above the dowry of Rs.50,000/- and 39 sovereigns of goldornaments and 2 kilograms of silver articles presented at the time ofmarriage and later, the accused have demanded Rs.one lakh from him. ButP.W.2 in her evidence has not stated anything about the demand of dowry ofRs.50,000/-. But she would confine herself only to the demand of Rs.1lakh by the accused. But both P.Ws.1 and 2 have not specifically statedthe date of demand of Rs.1 lakh towards additional dowry.

It is pertinent to note at this juncture that it is adefinite case of P.W.2 that her daughter Sujatha had left the matrimonialhome due to unbearable harassment met at the hands of the accused and wentto her eldest daughter Indra's house at Gummidipoondi and that there was amediation took place between the deceased Sujatha and A1 in the presenceof P.W.2's eldest son-in-law at Gummidipoondi. But, curiously, neitherthe eldest daughter, Indra nor the eldest son-in-law of P.W.2 wasexamined as prosecution witnesses to substantiate the claim that Sujathawas subjected to dowry harassment and cruelty immediately before she tookthe extreme step of committing suicide by hanging on 13.07.1997.

Yet another flaw pointed out by Mr.R.C.Paul Kanagaraj is, theenquiry report of the Revenue Divisional Officer P.W.

A perusal ofEx.P.17 will go to show that it is bereft of any particulars regarding theenquiry conducted by him. In Ex.P.17 there is no details regarding whoare all the witnesses Revenue Divisional Officer had enquired at the timeof enquiry and what was the nature of their statements regarding dowryharassment under which the deceased Sujatha was subjected to.13. P.W.13 is the then Tahsildar, had examined A1 Sasikumar andrecorded his statement Ex.P.9 and also examined P.W.2 Yamunabai andrecorded her statement Ex.P.10 and had conducted inquest over the corpseof deceased Sujatha. Ex.P.11 is the inquest report. Even in Ex.P.11inquest report, there is a specific column provided for to note the reasonfor the death. But in Ex.P.11 the said column is left blank. Learnedtrial Judge has convicted A1 only on the basis of the evidence of P.Ws.1 https://hcservices.ecourts.gov.in/hcservices/ and 2 who are none other than the parents of the deceased Sujatha. Buthas failed to note down the above said discrepancies found in theirevidence.

Learned counsel for the appellant Mr.R.C.Paul Kanagaraj relyingupon the decision reported in 2002 (2) Crimes 38(SC) (Mungeshwar PrasadChaurasia and another v State of Bihar) would contend that if a death ofa bride occurred under unnatural circumstances, the important material tobe looked into is whether she was subjected to harassment with demand ofdowry "soon before her death". The exact observation in the said dictumruns as follows: ... " The plea made on that score was to have thesentence reduced. But when we perused the evidence ofprosecution, we have noticed that the prosecution did notsucceed in showing that the present appellants didanything for subjecting Sudama Devi to harassment withthe demand for dowry "soon before her death". PW1 to PW4were the witnesses examined by the prosecution to provethat Sudama Devi was subjected to harassment with thedemand for dowry. All of them said in one accord thathusband of Sudama Devi demanded dowry a few months priorto her death. Even if the said period can be treated asfalling within the proximity range of 'soon beforedeath', the said acts can be attributed only to Ram Pukar– the husband of the deceased Sudama Devi. None of thewitnesses said either directly or indirectly that thepresent appellants did anything during the said period asagainst Sudama Devi. Of course, some of the witnessessaid that soon after marriage, these appellants asked formore dowry. But that demand was made at a time which wasbeyond the range of "soon before death" of the deceased. " The ratio laid down in the above said dictum is that dowry demand was madeat a time which was beyond the range of "soon before the death", theconviction under Section 304(B) IPC could not be sustained.

For the same proposition of law, learned counsel for theappellant Mr.R.C.Paul Kanagaraj relied upon another ratio decidendi in2004 Crl.L.J. 1765 (Surinder Kaur and another v State of Haryana) whereinit has been held by the Hon'ble Apex Court that if harassment is notproximate to death which was 2 1/2 years after marriage, the accusedcannot be convicted.

In this case also, P.Ws. 1 and 2 have not very specific in theirevidence regarding the date of demand of additional dowry by A1 from hisdeceased wife Sujatha. Unless it is proved by the prosecution thatimmediately prior to the occurrence, the victim was subjected to dowryharassment and cruelty, the accused cannot be convicted under Section 304(B) IPC and with regard to cruelty also there is absolutely no evidence. https://hcservices.ecourts.gov.in/hcservices/ There was no neighbours examined to show that the deceased Sujatha wassubjected to cruelty immediately prior to the occurrence. Under suchcircumstances, I am of the view that the conviction and sentence of thelearned trial Judge to A1 under Sections 304B and 498-A IPC, and alsounder Section 4 of the Dowry Prohibition Act, cannot be sustained. Thepoint is answered accordingly.