Animadverting upon the order dated 21.11.2006 passed by the learned Principal Sessions Judge, Chengalpet, Kanchipuram District in C.A.No.5 of 2006, confirming the conviction and sentence passed in S.C.No.420 of 2005, dated 20.12.2005, on the file of Assistant Sessions Court, Kanchipuram, Kanchipuram District, this criminal revision is focussed.
2. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
(a) The police laid the police report in terms of
Section 173 Cr.P.C. as against the accused for the offences under
Sections 498-A IPC r/w Sec.4 of Dowry Prohibition Act and Secs.306 and 304-B of IPC.
(b) Inasmuch as the accused pleaded not guilty, the trial was conducted and during trial, on the prosecution side, P.Ws.1 to 22 were examined; Exs.P1 to P21 and M.Os.1 to 3 were makred. No oral or documentary evidence was adduced on the side of the accused.
(c) Ultimately, the trial Court recorded the conviction and imposed the sentence as under:
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Both the Courts below fell into error in appreciating the evidence by applying the proper provisions of law. The evidence of P.Ws.1, 6 to 8 and 10 being the close relatives of the deceased should not have been believed by the lower Court in recording the conviction and imposing the sentences. The non examination of independent witnesses is fatal to the prosecution case. The statement given by the village panchayatars before the Executive Magistrate would evince and evidence the innocence of the accused. In the absence of any evidence to prove beyond reasonable doubt that the accused demanded dowry and harassed the deceased, the recording of conviction as against the accused for those offences in untenable. Accordingly he prayed for setting aside the judgments of both the Courts below and for acquitting him.
5. The learned counsel for the revision petitioner reiterated the grounds of revision and also developed his argument to the effect that the statement given by the accused before the Executive Magistrate would show his innocence; at one point of time, he borrowed a sum of Rs.5,000/- from his father-in-law and since he had not repaid it immediately, the father-in-law even beat him with chappal and humiliated him to the maximum; even then, he maintained equanimity and calmness of mind and lived with his wife; the evidence of P.W.8 Dhanalakshmi would evince that the alleged amounts received by the accused from his in-laws house was only by way of loan and if the matter is viewed in that angle, it would not amount to demand for dowry and consequently ingredients of
Section 304-B IPC would not be attracted.
6. Whereas the learned Government Advocate (crl.side) by inviting the attention of this Court to various portions of the evidence would develop his argument to the effect that simply because the witnesses happened to be the relatives, their evidence cannot be discarded as per the trite proposition of law; the witnesses cogently and coherently spoke about the demand of dowry by the accused and just one day prior to the date of the deceased committing suicide, the accused took the deceased to her parents house and left her in connection with the dowry demand and that alone actuated and accentuated, propelled and impelled the deceased to take the extreme step of extinguishing her life and as such, the ingredients of
Section 304-B IPC consequently were attracted in the facts and circumstances of this case.
7. The point for consideration is as to whether there is any perversity or non-application of law in interpreting the evidence so as to hold that there was dowry death involved in this case and that harassment was meted to the said deceased by the accused.
8. At the outset, I would like to highlight that Ex.P21 turned out to be a dubious document and it was correctly rejected by the trial Court itself. Ex.P21 is alleged to be the photocopy of the suicide note, which the deceased herself was having it in her hands while consuming poison. P.W.4, Amsa, is the lady who claimed to have seen the said act and however, curiously in this case, the Investigating Officer had not chosen to get the suicide note Ex.P21 verified by an handwriting expert by comparing it with the anti litem motem signature as well as handwriting of the deceased. No one knows as to what happened to the original of Ex.P21. The Investigating Officer in matters of this nature, irrespective of the fact whether the accused challenges the genuineness of the such suicide note or not, is duty bound to get it verified with the help of handwriting expert. Be that as it may, both the Courts below relied on the other evidence available and recorded the conviction.
9. Indubitably and incontrovertibly, unassailably and unarguably, the deceased consumed poison on 02.04.2003 and on the previous day, i.e. on 01.04.2003, the husband/accused took her from the matrimonial home to his in-laws house and left her there, for which before the Executive Magistrate the accused himself would state as though on 01.04.2003 he was in a drunken mood and irritated the deceased and whereupon, she caught hold of his hair and beat her 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 of Rs.5,000/- and thereafter, there was no such money transaction at all. P.W.1 the brother of the deceased, P.W.6, the mother of the deceased and P.Ws.7 and 8 the elder sisters of the deceased in unison would depose about the demand of dowry by the accused. The marriage between the accused and the deceased took place on 27.01.2002 as per Hindu Rites and Customs arranged by elders, whereas, the suicide was on 02.04.2003, so to say, well before seven years and thereby attracting
Sections 113-A and
113-B of the Indian Evidence Act.
10. The raison d'etre of those provisions are to the effect that if a married woman commits suicide within seven years, it shall be presumed that she died the death due to harassment meted out to her in the matrimonial home by the husband and other relatives of the husband. No doubt,
Section 113-A of the Indian Evidence Act is only relating to attracting
Section 306 IPC and also 498-A IPC, and
Section 113-B of the Indian Evidence Act is an additional provision to attract presumptions in respect of dowry death and the demand for dowry. As such, it has to be found as to whether there is any proximity between deceased/Sumathi committing suicide and the demand for dowry by the accused.
11. So far committing of suicide by Sumathi is concerned, it is beyond doubt as it is borne by medical evidence, more specifically Ex.P.3, the post-mortem certificate and the evidence of the Doctor. Relating to demand of dowry is concerned, even though on the accused's side, their was testimony impeached on the ground that they are close relatives of the deceased, the catena of decisions of the Hon'ble Apex Court would display and demonstrate that only on the ground that the witnesses are relatives, their evidence should not be discarded. The following decision could be cited fruitfully. Certain excerpts from it would run thus:
(2009) 2 Supreme Court Cases(Cri) 389 GURDEV RAJ VS. STATE OF PUNJAB, an excerpt from it would run thus:
"14. It also cannot be said that since Rajani Bala and Pooja were closely related to deceased Bhushan Lata, their version could not have been believed. In our opinion, the trial Court was wholly right in holding that Rajani Bala and Pooja were no doubt relatives of the deceased but they could not be termed as 'interested' witnesses. The court was also right in further stating that close relatives would be most reluctant to spare the real assailant and would falsely implicate an innocent person. After seeing the demeanour of witnesses, the trial Court believed both of them. The High Court again considered their evidence and confirmed the finding recorded by the trial Court. We see no infirmity in the approach of the trial court as well as of the High Court. It, therefore, cannot be said that by believing these two witnesses, any illegality was committed by the Courts below."
12. The very act of demanding dowry itself is relating to familial matter which could be known only to family members. Normally no man having head over shoulder would stand on the tree top or roof top and demand dowry to the knowledge of all and sundry; such dowry demands are made secretly and surreptitiously and that too taking care to see that the persons other than the family members are not aware of the same. Wherefore, such non-examination of the witnesses other than the family members cannot be taken as fatal to the case of this nature. Axiomatically the panchayatars who gave the statement before the Executive Magistrate might not have known about it. Simply because those panchayatars did not speak about dowry demand, no adverse inference can be drawn against the relatives who gave evidence about dowry demand.
13. The learned counsel for the revision petitioner would invite the attention of this Court to the evidence of P.W.8 and more specifically, her evidence during cross examination and highlight and spotlight the fact that she during cross examination admitted before the police that the accused borrowed several amounts from his father-in-law. Whereupon, I, with all seriousness compared the 161 Statement of P.W.8 available on record with that of the deposition of the witness, P.W.8. In the 161 statement recorded by the police, there is no such version given by P.W.8 that the accused borrowed as loan from his father-in-law and in such such a case, during cross examination on the accused's side, they were not justified in putting a suggestion to the witness P.W.8 as though she stated before the police that the accused borrowed on various occasions various amounts as loans. It is quite apparent that as per the dictum of the Hon'ble Apex Court in AIR 1959 SC 1012 [Tahsildar Singh v. State of Uttar Pradesh] contradictions could be made out between 161 statement recorded by the police and the deposition of the witness as per
Section 145 of the Indian Evidence Act and as per
Section 161 of Cr.P.C. but imaginary versions should not be put to the witness and try to make out contradiction and that would tantamount to misleading the witness as well as the Court and such a practice has to be deprecated in unmistakable terms.
14. Even P.W.8 in her chief examination clearly stated about the 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 that on several occasions, the accused demanded dowry. In fact, while the accused giving his statement before the Executive Magistrate he used certain strong words as against his father-in-law as though his attempt to give a sum of Rs.30,000/- in the presence of another witness was a sheer attempt to have the accused's mother as his concubine etc. and he could have refrained from uttering out such a version. The accused also for the purpose of wriggling out of his criminal liability, went to the extent of suggesting that the deceased was in illicit intimacy with another person and that might have been the cause for committing suicide. I am of the view that in this factual matrix, such a suggestion is nothing but a barefaced lie, dished out purely for the purpose of exonerating himself from the clutches of criminal law.
15. At this juncture, my mind is redolent and reminiscent of the following maxim:
De Mortis Nil Nisi Bonum [of the deceased talk nothing]
16. Here the husband for saving himself, imputed immorality on the part of his wife. During her life time, there is nothing to indicate that the husband suspected her fidelity and that there were some panchayats or some talks over that. Over and above that, even in his statement before the Executive Magistrate at the earliest point of time which he gave after consulting his Advocate, there is no allegation of illicit intimacy on the part of the deceased Sumathi. Wherefore it is clear that the accused dished out such a false plea as though the wife was having some illicit intimacy with some 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 to prove beyond doubt his plea. Even preponderance of probabilities would be sufficient to prove his innocence, but in this case, the prosecution witnesses narrated incident by incident as to how he went on extracting money from his in-laws house. It is also a fact which could be understood from the accused's own statement before the Executive Magistrate that on the bride's side, they have not kept up their promise for giving five sovereigns of gold, but they had given only 1-3/4 sovereigns of gold jewels to the deceased and that also was irking the mind of the accused. As such there is no perversity or impropriety in interpreting the evidence by the Courts below and in applying the penal law as against the accused.
17. At this juncture, I call up and recollect the following decisions of the Hon'ble Apex Court:
(i) 2002(6) SCC 650- Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus:
"13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.
14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under
Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself.
(ii) 2005 Supreme Court Cases (cri) 276 Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus:
"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice."
A bare perusal of the said precedents would demonstrate and display that the revisional court is not expected to interfere with the finding given by both the courts below and if there is any perversity or non-application of law on the part of both the courts below, the question of revisional court interfering with the findings would arise.
18. As such, this Court being a revisional Court, in the circumstances of the case views that no interference with the order of both the Courts below is warranted.
19. The learned counsel for the revision petitioner would implore and entreat that as of now, the accused is studying second year law course and if he is made to be in jail, certainly his future would be in doldrums. Here the learned counsel for the petitioner also tried his level best to convince the Court that the offence might be recorded under
Section 306 IPC and not under
Section 304-B IPC so that lesser sentence could be awarded and thereby, the accused would be able to continue his studies.
20. I am of the considered opinion that in the wake of the evidence available, there is no chance to modify the conviction recorded under
Section 304-B IPC into one under
Section 306 IPC as the ingredients vary between the two. However, regarding the sentence is concerned, imprisonment of seven years is a must and in such 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-B IPC and a sum of Rs.3,000/- under
Section 498-A IPC. I am of the opinion that taking into account the impecunious and penurious situation of the accused, the fine amount could be reduced and accordingly, the fine amount of Rs.10,000/- is reduced to Rs.1,000/- (Rupees one thousand only) and similarly the fine amount of Rs.3,000/- is reduced to Rs.1,000/- (Rupees one thousand only) and the remaining fine amounts if any collected, shall be refunded to the accused. As such, the revision petition is partly allowed and the rest of the findings and sentences are confirmed.
22.07.2009 Index : Yes/No Internet : Yes/No G.RAJASURIA,J., gms To 1. The Principal Sessions Judge, Chengalpet, Kanchipuram District. 2. The Assistant Sessions Court, Kanchipuram, Kanchipuram District. 3. The Public Prosecutor, Madras. Crl.R.C.No.1416 of 2006 22.07.2009