IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30/03/2004
CORAM
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
CRL.APPEAL No.804 of 1997
Ravichandran ... Appellant /
Accused
-Vs-
Deputy Superintendent of
Police, Annamalai Nagar
Police Station,
Chidambaram. ... Respondent
This Criminal Appeal arises out of the judgment dated
23.10.1997 made in S.C.No.468 of 1992 on the file of Assistant Sessions Judge,
Chidambaram.
!For appellant : Mr. A.Padmanabhan
^For respondent : Mr. A.N.Thambidurai,
Government Advocate,
(Crl. Side)
:J U D G M E N T
Accused in S.C.No.468 of 1992 on the file of Assistant
Sessions Judge, Chidambaram is the Appellant. By the Judgment dated
23.10.1997, the learned Assistant Sessions Judge convicted Appellant / Accused
under Sec.304-B I.P.C. for causing death of his wife Subadra subjecting her
to dowry harassment. The trail Court acquitted the Accused for the charge
under Sec.306 I.P.C.
2. The charges against the Accused and the findings of the
trial Court are as noted below:-
Charge Number
Gist of the Charge
Finding
sentence
1
Under Sec. 304 – B IPC (2 counts)
for causing death of his wife Subadra subjecting her to cruelty and harassment
in connection with dowry.
and also for the death of his child Saranya.
Convicted under Sec.304-B I.P.C.(2 counts)
Sentenced to undergo Rigorous Imprisonment for eight years.
2
Under Sec. 306 IPC
for abetment to commit suicide by Subadra and for the death of child Saranya.
Not guilty
Acquitted.
3. Common facts which led to this appeal could briefly be
stated thus:- Deceased Subadra is the daughter of P.W.8 – Shanmugasundaram and
P.W.9 – Saroja. The Accused was working as Assistant in the Bank of Madura,
Chidambaram Branch. Subadra was given in marriage to the Accused. The
marriage of the Accused and deceased was solemnized on 08.12.1989 in Srinivasa
Kalyana Mandapam, Tanj ore. At the time of marriage, Subadra was given 20
sovereigns jewels and cash of Rs.40,000/- and also household utensils worth
about Rs.30,000/-. The couple had one girl child by name Saranya. Accused
and deceased Subadra were living in Door No.17, Sadagopa Nagar, Kothangudi,
Chidambaram within the jurisdiction of Annamalai Nagar Police Station. One
Alamelu is the owner of the said house. She was residing in the ground floor;
while the Accused and deceased Subadra were living in the first floor.
4. Case of prosecution is that the deceased Subadra
entertained doubts on the illicit intimacy of the Accused with the said
Alamelu, which has resulted in frequent quarrel between them. P.Ws.8 and 9 –
Parents of the deceased Subadra thought of shifting their residence from Door
No.17, Sadagopa Nagar. P.W.8 – father of deceased was then a retired Personal
Assistant to District Collector. He (P.W.8) has promised to buy a plot for
the couple either at Kumbakonam or Mayavaram. The Accused was demanding to
purchase the plot. Demanding for plot, the Accused was treating deceased
Subadra cruelly. On 14.05.1992, when P.W.8 visited his daughter, she has
informed him that the Accused was treating her cruelly demanding for plot.
5. Occurrence. On 16.05.1992 – 2.00 p.m., Subadra poured
kerosene on herself and set fire to herself. She has also poured kerosene on
her child Saranya and set fire to her. Upon hearing the alarm raised by
Subadra – “Inah fhg;ghj;J’;f. Inah fhg;ghj;J’;f”, the neighbours rushed to
the scene of occurrence. P.W.1 – Sundaravadivelu, resident of Door No.16,
P.W.2 – Palanivelu, resident of Door No.24 of Sadagopa Nagar heard the alarm
and went to the house and found Subadra burnt and dead. The child Saranya,
who sustained burn injuries was found to be struggling for life. P.Ws.1 and 2
have immediately taken the child to Chidambaram Government Hospital. Child
Saranya also died of burn injuries at 6.00 p.m. on the same day.
6. Ex.P.1 – Report by P.W.3 – V.A.O. P.W.3 (Gunasekaran) –
Village Administrative Officer got information that one female – Subadra died
of burn injuries and the child Saranya sustained burn injuries and struggling
for life. After confirming the information, P.W.3 sent Ex.P.1 – Report to
Annamalainagar Police Station.
7. Registration of the case. P.W.18 – Sub Inspector of
Police received Ex.P.1 – Report from P.W.3 – V.A.O. On that basis, a case was
registered in Crime No.140 of 1992 under Sec.174 Crl.P.C. under Ex.P.8 –
First Information Report. Child Saranya died of burn injuries at 6.00 p.m.
On receipt of Death Intimation of child Saranya, P.W.18 – S.I. of Police
altered the case into Sec.302 I.P.C. under Ex.P.9 – Express Report.
8. Since death of Subadra was within 2-1/2 years of marriage,
Revenue Divisional Officer was requested to hold Inquest and to take up
initial investigation. P.W.19 – R.D.O (Vridhachalam), who was incharge of
Chidambaram had taken up the investigation.
9. Inquest and initial Investigation. On the night of
16.05.1992, P.W.19 – R.D.O. had taken up the investigation. Parents of
Subadra viz., P.Ws.8 and 9 and other witnesses (P.W.1 – Sundaravadivelu, P.W.3
– Gunasekaran and one Ganesan) wer and their statements were recorded.
Inquest was held on the body of deceased Subadra examining the above witnesses
in the presence of Panchayatdars. Ex.P.10 is the Inquest Report. In his
report (Ex.P.18), P.W.19 – R.D.O. concluded that the death might be homicidal
or suicidal due to Dowry Harassment and Domestic Quarrel. P.W.19 has directed
further enquiry. After the inquest, the bodies of Subadra and child Saranya
were sent for Autopsy.
10. Post-mortem. P.W.20 – Dr.Amanullah conducted Autopsy on
the body of the child Saranya. Noting burn injuries, P.W.20 issued Ex.P.1 9 –
Post-mortem Certificate. P.W.14 – Dr.Balachandran conducted Autopsy on the
body of deceased Subadra. 90% to 100% burn injuries were noted on the person
of Subadra. Opining that the death was due to burn injuries, P.W.14 issued
Ex.P.7 – Post – Mortem Certificate.
11. Further Investigation. P.W.21 – Assistant Superintendent
of Police has taken up further investigation. The scene of occurrence –
residential house of the Accused in Sadagopa Nagar was inspected. Ex.P.2 –
Observation Mahazar and Ex.P.20 – Rough Plan were prepared. Upon examination
of witnesses, P.W.21 – A.S.P. had initially altered the case to Sec.302
I.P.C. under Ex.P.24 – Report. Then, P.W.21 changed the case to Ss.304-B and
306 I.P.C. for dowry death and abetment to commit suicide under Ex.P.25 –
Report. On completion of investigation, charge sheet was filed against the
Accused on 21.10.1992.
12. To substantiate the charge against the Accused, in the
trial Court, prosecution has examined P.Ws.1 to 21. Exs.P.1 to 25 were
marked. M.O.1 was produced. The Accused was questioned under Sec.313
Crl.P.C. about the incriminating circumstances and evidence. The Accused
denied the same. The Accused filed statement in writing denying any illicit
intimacy between him and the said Alamelu. He has also denied having
controlled his wife from writing letters to her parents. Denying the evidence
of P.Ws.8 to 12, the Accused pleaded that he has never demanded any house or
plot from the deceased and never illtreated her.
13. Upon consideration of the evidence, the trial Court found
that there was demand of dowry in the form of insistence to purchase a plot
and that the deceased Subadra was subjected to harassment. Evidence of
parents of the deceased (P.Ws.8 and 9) was accepted as reliable and on their
evidence, it was held that the deceased was subjected to harassment and
cruelty by the Accused in insisting for plot. Placing much reliance upon
Ex.P.5 – Suicidal Note, the learned Assistant Sessions Judge found that Ex.P.5
clearly brings out the frustration and dejection in the mind of Subadra.
Finding that there was demand of dowry and that deceased Subadra was subjected
to harassment and cruelty in insistence for purchase of a plot, the trial
Court convicted the Accused under Sec.304-B I.P.C. and sentenced him as
aforesaid in para (2).
14. The reasonings and the conviction are assailed by the
Accused contending that in the absence of any evidence of demand of dowry, the
conviction under Sec.304-B I.P.C. is unsustainable. Seriously assailing the
evidence of P.Ws.8 and 9 – Parents of the deceased, the learned counsel for
the Appellant / Accused interalia raised the following contentions:-
(i) Evidence of P.Ws.8 and 9 and the letter – Ex.P.3 and
Suicidal Notes – Exs.P.4 and P.5 – do not bring out the demand
of dowry or establish the cruelty;
(ii) P.Ws.8 and 9 have developed ill-will and grudge towards
their son-in-law, whom they consider responsible for the death of
their daughter and their evidence suffers from
improvements and infirmities and the trial Court erred in basing
the conviction on the highly interested testimony of P.Ws.8 and
9;
(iii) Exs.P.4 and P.5 – Suicidal Notes do not contain that
the deceased suffered cruelty at the hands of her husband.
Contending that the evidence adduced by the prosecution is not sufficient to
establish the essential ingredients of Sec.304-B I.P.C., the learned counsel
for the Appellant / Accused submitted that the trial Court erred in convicting
the Accused.
15. Countering the arguments of the Appellant / Accused and
taking me through the evidence of P.Ws.8 and 9, the learned Government
Advocate contended that the demand of dowry and that Subadra was subjected to
dowry harassment and cruelty are well proved by the evidence of P.Ws.8 and 9.
It is further submitted that the misunderstanding and differences between the
deceased and the Accused due to illicit intimacy of the Accused with the said
Alamelu is well proved, which has caused the serious frustration in the mind
of the deceased and which has driven her to commit suicide and the trial Court
has correctly convicted the Accused. It is further submitted that the
reasonings of the trial Court for convicting the Accused are unassailable
warranting no interference.
16. Upon careful reassessment of the evidence and materials
on record, Judgment of the trial Court and submissions of both sides, the
following points arise for consideration in this appeal:-
(i) Whether the prosecution has proved that Subadra was subjected to
cruelty and harassment in connection with dowry “soon before her death”?
(ii) Whether the frustration and dejection caused in the mind of
deceased Subadra due to the alleged friendship between the Accused and Alamelu
would fall within the purview of Sec. 304-B I.P.C. ?
(iii) Whether the conviction of the Accused under Sec.304-B I.P.C. is
sustainable ?
17. Case of prosecution proceeds on these common grounds:-
Deceased Subadra is the daughter of P.W.8 – Shanmugasundaram. Accused was
working as Assistant in the Bank of Madura, Chidambaram Branch. Marriage of
the Accused and deceased was solemnized on 08.12.1989 at Srinivasa Kalyana
Mandapam, Tanjore. At the time of marriage, deceased Subadra was given 20
sovereigns jewels, cash of Rs.40,000/- and household utensils worth about
Rs.30,000/-. Accused and deceased were living in Door No.17, Sadagopa Nagar,
Kothangudi. The said house belongs to one Alamelu, who is none other than the
Manager of the Bank of Madura, Chidambaram Branch, where the Accused was
working. Alamelu was residing in the ground floor, while the Accused and
deceased were living in the first floor. After some time, Alamelu was
transferred to Madras. After her transfer to Madras, Alamelu was frequently
visiting Sadagopa Nagar. During her visit, she used to stay in the first
floor in a room, where deceased and Accused were living. From the evidence,
it is brought on record that the deceased had serious doubts about the illicit
intimacy and friendship of the Accused with the said Alamelu, which has caused
stress and strain in the matrimonial relationship which resulted in frequent
quarrel.
18. On 16.05.1992 – 2.00 p.m., Subadra died of
self-immolation. She also poured kerosene on her child Saranya, aged about
1-1/2 years and set fire to the child. For the death of Subadra and Saranya,
initially a case of ‘Suspicious death’ was registered in Crime No.140 of 1992
under Sec.174 Crl.P.C. under Ex.P.8 – First Information Report. Death was
within period of seven years.
19. By Sec.113-B Evidence Act, the Court is to raise a
presumption of Dowry death if the same has taken place within seven years of
marriage and there is evidence of the women having been subjected to cruelty
or harassment. Presumption under Sec.113-B is a presumption of law. On proof
of the essentials mentioned therein, it becomes obligatory on the Court to
raise a presumption that the accused caused the dowry death.
20. Elaborately discussing Sec.113-B of the Evidence Act and
Sec.30 4(B) I.P.C. and the necessity of proving the expression “soon before
her death” in 2003 SCC (Crl.) 2016 – Hiralal v. State, the Supreme Court held
thus:-
“A conjoint reading of Section 113-B of the Evidence Act and Section 304-B
I.P.C. shows that there must be material to show that soon before her death
the victim was subjected to cruelty and harassment. The prosecution has to
rule out the possibility of a natural or accidental death so as to bring it
within the purview of ” death occurring otherwise than in normal circumstances
“. The expression ” Soon before ” is very relevant where Section 113-B of the
Evidence Act and Section 304-B I.P.C. are pressed into service. The
prosecution is obliged to show that soon before the occurrence there was
cruelty or harassment and only in that case presumption operates. Evidence in
that regard has to be let by the prosecution. ” Soon before” is a relative
term and it would depend upon the circumstances of each case and no strait
jacket formula can be laid down as to what would constitute a period of soon
before the occurrence. It would be hazardous to indicate any fixed period,
and that brings in the importance of a proximity test both for the proof of an
offence of dowry death as well as for raising a presumption under Section
113-B of the Evidence Act. The expression ” Soon before her death ” used in
the substantive Section 30 4-B I.P.C. and Section 113-B of the Evidence Act
is present with the ideal of proximity test. No definite period has been
indicated and the expression ” Soon before ” is not defined. A reference to
the expression ” Soon before ” used in Section 114 Illustration (a) of the
Evidence Act is relevant. It lays down that a Court may presume that a man
who is in the possession of goods ” Soon after the theft, is either the thief
or has received the goods knowing them to be stolen, unless he can account for
their possession “. The determination of the period which can come within the
term “Soon before ” is left to be determined by the Courts, depending upon
facts and circumstances of each case. Suffice, however, to indicate that the
expression ” Soon before ” would normally imply that the interval should not
be much between the cruelty or harassment concerned and the death in question.
There must be existence of a proximate and live link between the effect of
cruelty based on dowry demand and the death concerned. If the alleged
incident of cruelty is remote in time and has become stale enough not to
disturb the mental equilibrium of the woman concerned, it would be of no
consequence.” (Emphasis added)
The essential ingredient of Sec.304-B I.P.C. “soon before death” was also
emphasised in JT 1997(3) SC 91 – Sham Lal v. State of Haryana followed by the
single Judge of this Court reported in 1999-1-LW (Crl) 127 – Famaiah v.
State.
21. Now the main point to be determined is whether there was
demand of dowry and whether deceased Subadra was subjected to illtreatment and
cruelty having immediate proximity to the date of death of deceased Subadra.
Elaborate consideration of the evidence and determination of this point has
become necessary in this appeal, since the trial Court has not tested the
evidence in the light of the essential ingredients.
22. Case of prosecution is that demand of dowry was in the
form of “to purchase a plot and that Subadra was subjected to ill-treatment
and cruelty “. Prosecution relies upon the following evidence:-
(i) evidence of parents of Subadra – P.Ws.8 and 9 and the
evidence of P.Ws.10 and 11, who have married the sisters of Subadra;
(ii) Ex.P.3 - letter and Exs.P.4 and P.5 - Suicidal
Notes;
(iii) evidence of P.W.5 (Amudha), a co-resident in Door No.17
in the ground floor and evidence of P.W.7 (Annakkili), the Servant-
maid of the Accused and deceased;
(iv) P.W.19 - R.D.O's Report - Ex.P.18 and the basis of his
opinion.
It is to be considered whether the above evidence and facts are firmly
established in bringing home guilt of the Accused for sustaining the
conviction for dowry death.
23. We may firstly refer to the evidence of P.W.5 (Amudha) –
a co-resident, residing in the ground floor after Alamelu has vacated the
house in the ground floor. P.W.7 – Annakkili, is said to be the Servant-maid
in the house of the Accused and deceased Subadra. P.W.5 was examined to bring
home the point that even after vacating the house, the said Alamelu used to
visit the house of Accused and deceased in Chidambaram and would stay in the
first floor and that the she used to go about in a Scooter along with the
Accused. But P.W.5 had turned hostile. Her evidence is confined to the
limited extent of saying that she resided in the first floor of Door No.17,
Sadagopa Nagar, which is owned by Alamelu. On the material aspect that
Alamelu used to frequently visit the house of Accused and that she insisted to
send child Saranya to Madras, which resulted in frequent quarrel, P.W.5 had
turned hostile. Evidence of P.W.5 is of no assistance to the prosecution.
24. Likewise, P.W.7 – Annakkili, who is said to be the
Servantmaid of the deceased Subadra and Accused was examined to speak about
the frequent quarrel between the Accused and deceased Subadra on account of
the frequent visit of Alamelu. P.W.7 also turned hostile denying being
employed in the house of the Accused. With the hostility of P.W.7, the
prosecution is further handicapped in bringing the evidence on the aspect of
cruelty from independent source.
25. P.W.1 – Sundharavadivelu and P.W.2 – Palanivelu are the
residents of Door No.16 and 24 of Sadagopa Nagar respectively. P.Ws.1 and 2
are the only witnesses to occurrence. According to them, on 16.05 .1992, they
heard the alarm raised by Subadra, Inah fhg;ghj;J’;f. Inah fhg;ghj;J’;f and
went to the house and found Subadra burnt and dead and the child Saranya
struggling for life. Thus the evidence of neighbours, viz. P.Ws.1 and 2 is
also of no consequence to establish the cruelty.
26. Prosecution case revolves around the evidence of parents
of deceased Subadra – P.Ws.8 and 9. Subadra was given in marriage to the
Accused on 08.12.1989. Even within 2-1/2 years of marriage, they lost their
daughter and grand-daughter. In view of the close relationship and their
affection towards Subadra, P.Ws.8 and 9 would naturally have a tendency to
exaggerate the facts. The love and affection for the deceased would create a
psychological hatred in their minds against their son-in-law, whom they
consider responsible for the death of Subadra. Therefore, Court has to
examine the evidence of P.Ws.8 and 9 with great care and caution. In A.I.R.
1984 SUPREME COURT 1622 – Sharad v. State of Maharashtra, the Supreme Court
has laid down that the evidence of the parents is to be scrutinised with care
and caution to exclude exaggeration and laid thus:-
” In view of the close relationship and affection any person in the position
of the witness would naturally have a tendency to exaggerate or add facts
which may not have been stated to them at all. Not that this is done
consciously but even unconsciously the love and affection for the deceased
would create a psychological hatred against the supposed murderer and,
therefore, the Court has to examine such evidence with very great care and
caution. Even if the witnesses were speaking a part of the truth or perhaps
the whole of it, they would be guided by a spirit of revenge or nemesis
against the accused person and in this process certain facts which may not or
could not have been stated may be imagined to have been stated unconsciously
by the witnesses in order to see that the offender is punished. This is human
psychology and no one can help it. ”
Therefore, evidence of P.Ws.8 and 9 is to be carefully scrutinised to find out
whether their evidence satisfies the essential requirements of Sec.304-B
I.P.C.
27. Before adverting to the evidence, we may refer to the
background and status of P.W.8 – Shanmugasundaram. P.W.8 is a fairly educated
person. He is a retired Personal Assistant to District Collector,
Pudukkottai. P.W.8 being an official of the Revenue Department, is worldly
wise more familiar with the dowry death related cases and the procedure
therefor. Firstly, we may refer to his tendency in trying to make out a case
of Homicide in the initial stages of investigation. That apart, he was also
trying to implicate the said Alamelu as co-accused. His tendency to implicate
the Accused and Alamelu as accused in a case of Homicide is clearly manifested
in Ex.P.11 – his statement recorded by the Tahsildar.
28. In Ex.P.11 – Statement before the Tahsildar, P.W.8 –
Shanmugasundaram had stated thus:-
(VERNACULAR OMITTED)
29. P.W.9 (Saroja) – mother of the deceased Subadra had also
reiterated the same in Ex.P.17 – her Statement before the Tahsildar. For the
purpose of showing their tendency to exaggerate and adding facts from out of
their thinking, it is necessary to extract the relevant part of the statement
of P.W.9 in Ex.P.11 – Statement which is as under:-
(VERNACULAR OMITTED)
Thus, in their statements before Tahsildar, P.Ws.8 and 9 have stated that
Subadra is not a coward to commit suicide and she would have only been
murdered. Such statement emanating from the thinking of P.Ws.8 and 9 is not
based on any material. In fact, the same is opposed to Ex.P.5 – Suicidal Note
itself. Subadra herself has left the Suicidal Note stating that she herself
is responsible for ending her life by committing suicide. The tendency of
P.Ws.8 and 9 in exaggerating or adding facts is to be borne in mind while
scrutinising their evidence.
30. Ex.P.18 is the report of P.W.19 – Revenue Divisional
Officer. On the basis of statements of P.Ws.8 and 9, P.W.19 – R.D.O. also
formed an opinion that death of Subadra might be Homicide. Ex.P.18 – Report
refers to statement of one Johnsirani for forming opinion of ” Death of
Subadra as Homicide “. The statement of Johnsirani is not before the Court;
nor was she examined in the Court. Opinion of P.W.19 – R.D.O. in Ex.P.10
reads thus:-
(VERNACULAR OMITTED)
The above opinion of P.W.19 – R.D.O. in Ex.P.10 is absolutely unsupported by
any other material.
31. In the initial stages of the investigation, P.W.8 –
father of the deceased Subadra has taken vigorous steps to implead Alamelu as
co-accused. In his cross-examination, P.W.8 has admitted having preferred
petition before the Sessions Court, Cuddalore and thereafter, before the High
Court for impleading the said Alamelu as co-accused. That he bore deep grudge
towards the Accused is also clear from his conduct in sending complaints to
Tamil Nadu Chief Minister and the Chief Secretary. He has also sent
complaints alleging dowry death to the higher Police Officers. Those
complaints were sent immediately on the next day of occurrence. Considering
the hatred in the mind of P. W.8 towards the Accused and his tendency to make
improvements, cautious approach has to be adopted in analysing his evidence.
But the trial Court had not kept with cautious approach in assessing the
evidence of P.Ws.8 and 9. The trial Court seems to have virtually accepted
the evidence of P.Ws.8 and 9 without insisting for corroboration from other
independent source and circumstances.
32. In the above backdrop, let us consider the evidence of
P.Ws.8 and 9 and P.Ws.10 and 11. Of course, the marriage was an arranged one.
At the time of marriage, 20 sovereigns jewels, cash of Rs.40,000/- and
household utensils worth about Rs.30,000/- were given. Accused was employed
in Bank of Madura, Chidambaram Branch. The said Alamelu is said to have
arranged for the marriage. While the Accused and deceased Subadra were living
in Door No.17, Sadagopa Nagar, the deceased is said to have entertained doubts
on the illicit intimacy of the Accused with Alamelu, which resulted in
frequent quarrel between them. It is alleged that Subadra has also seen the
Accused and the said Alamelu in a compromising position, which she had
informed to her parents. According to P.Ws.8 and 9, Subadra has frequently
complained of the quarrel between her and Accused on account of his close
relationship with Alamelu. The entire evidence of cruelty and illtreatment
thus proceeds on the footing that the frequent quarrel was due to the close
friendship of Accused with Alamelu. Absolutely there is no evidence on the
demand of dowry and that Subadra was subjected to ill-treatment and cruelty in
connection with dowry harassment having proximate link with the occurrence.
33. Proposal for purchase of plot. The only instance which
P.Ws.8 and 9 refers in their evidence is the proposal for purchase of plot in
Kumbakoman or in Tanjore. This proposal was arrived at after having talked
with the parents of the Accused. According to P.W.8 – Shanmugasundaram, he
had complained about the conduct of the Accused to his parents and sought
their intervention to settle the problem of his close relationship with
Alamelu for which the parents of the accused is said to have suggested for
purchase of plot in some other place so that the close relationship of Alamelu
and Accused would be severed. P.W.8 has also agreed to purchase a plot. As
per his statement, vd; kfs; ed;whf thH ntz;Lk; vd;gjw;fhf ehd; Vw;ghL
bra;tjhfr; brhd; ndd;/ Thus the proposal for purchase of plot is of own
volition and willingness of P.W.8 – father of the deceased to enable Subadra
to live happily with the Accused. There is no demand by accused to purchase
the plot.
34. In their evidence, P.Ws.8 and 9 have spoken about a
particular instance. When they went to Sadagopa Nagar, they found the house
locked. After enquiring the neighbours and being learnt that Subadra and
child Saranya had been to Vadoor (house of the parents of the Accused), P.Ws.8
and 9 went to Vadoor. According to P.Ws.8 and 9, Subadra had uncontrollably
wept alleging that she was confined in the house of the parents of the Accused
and pleaded her parents (P.Ws.8 and 9 ) to purchase a plot soon. P.Ws.8 and 9
pacified her and left Vadoor. Had there been any such ill-treatment and
confinement in Vadoor, P.Ws.8 and 9 would have definitely mentioned the same
in their earlier statements – Ex.P.11 and Ex.P.17 before P.W.19 – R.D.O. But
they did not do so. P.Ws.8 and 9 have only stated about:-
(i) illicit intimacy of the Accused and Alamelu;
(ii) proposal to purchase a plot and shifting their
residence;
(iii)frequent quarrel between the accused and deceased on
account of illicit intimacy of the accused with Alamelu.
The evidence of P.Ws.8 and 9 in the witness box on demand to purchase plot and
that there was cruelty on that score is nothing but an improved version. No
weight could be attached to their evidence that there was demand of dowry in
the form of purchase of plot and that Subadra was subjected to cruelty.
35. P.Ws.8 and 9 referred to their stay in the house at Door
No.17 , Sadagopa Nagar on 14.05.1992 – two days prior to the occurrence.
According to them, for attending a marriage in Chidambaram on 15.05.19 92,
they went to Sadagopa Nagar and stayed at the house of their daughter on the
night of 14.05.1992. At that time, deceased Subadra is said to have
complained to P.Ws.8 and 9 on the alleged beating by the Accused in the delay
in getting the plot. P.Ws.8 and 9 have stated that they pacified Subadra and
returned back. It is pertinent to note that had there been any such complaint
by Subadra, it would have been fresh in the mind of P.W.8 when he was examined
by P.W.19 – R.D.O. But P.W.8 has not stated anything about the occurrence on
the night of 14.05.1992. In Ex.P.17 – Statement, P.W.9 only has stated about
their stay on the night of 14.05.1992 in Sadagopa Nagar and the complaint of
Subadra that the deceased was ill-treating her and subjecting her cruelly.
Even in the earlier statement of P.W.9, the alleged cruelty is not in
connection with demand of dowry. Subadra is said to have complained the
conduct of the Accused in threatening her and in trying to take the child
Saranya to Madras and keep her in the custody of Alamelu. Thus, it emerges
that the mental agony caused to deceased Subadra was only on account of the
contact of the Accused with the said Alamelu. Evidence of P.Ws.8 and 9 is
absolutely wanting to establish demand of dowry. The proposal for purchase of
plot in Kumbakoman or in Tanjore is only voluntary.
36. P.Ws.10 – Venkatajalam and P.W.11 – Natarajan have
married sisters of deceased Subadra. According to P.W.11, he had been to
Chidambaram about one week prior to the occurrence and Subadra informed him
about the problems in the delay in purchase of house or plot. P.Ws.1 0 and 11
are also interested witnesses. As discussed earlier, the purchase of plot or
house is the proposal of the family members to sever his ties (accused) with
Alamelu. On the evidence of P.Ws.10 and 11 , no cruelty or ill-treatment
could be attributed to the Accused.
37. Ex.P.3 is the letter written by deceased Subadra on
16.05.1992 about the restriction placed on her in visiting Tanjore (Parents
house). In Ex.P.3 also Subadra only refers her resentment against Alamelu,
that Alamelu was influencing the Accused to impose condition not to send her
to Tanjore. Extract of the above is as follows:-
(VERNACULAR OMITTED)
Witnesses have admitted that the word ” nga; ” in Ex.P.3 refers to the said
Alamelu. Nothing is forthcoming from Ex.P.3 on the alleged demand of dowry or
that Subadra was subjected to cruelty. Likewise in Exs.P.4 and P.5 – Suicidal
Notes to her parents and to the Accused respectively, nowhere is there any
iota of indication on demand of dowry. In Ex.P.5 – Suicidal Note, Subadra has
only stated, ” vd;Dila Kothy; ahUk; fc&;lg;glnth. tUj;jg;glnth ntz;lhk;/
eP’;fs; vy;nyhUk; ed;whf thHntz;Lk; vd;W epidf;fpnwd; “. Evidence of P.Ws.8
and 9 and the letter Ex.P.3 and Suicidal Notes – Exs.P.4 and P.5 do not
contain any convincing and satisfactory evidence about the demand for dowry or
cruelty.
38. It appears from the evidence that there was strain in the
matrimonial relationship only due to the close friendship of the Accused with
Alamelu. It is brought on evidence that Alamelu visited Chidambaram from
08.05.1992 – 10.05.1992 and the Accused joined her in going out, due to which
Subadra must have been greatly disturbed, driving her to commit the suicide
and also setting fire to the child. Of course, the occurrence is a gruesome
one. The Accused is mainly instrumental for causing such mental agony and
dejection in the mind of Subadra driving her to commit suicide. But it cannot
be the reason to convict the Accused for dowry death when the essential
ingredients are not proved.
39. Of course, the conduct of the Accused clearly falls
within the ambit of Sec.306 I.P.C. Though the trial Court framed the charge
under Sec.306 I.P.C., unfortunately the trial Court had acquitted the Accused
under Sec.306 I.P.C. Even in charge No.2 – abetment to commit suicide, the
language proceeds on the footing of demand of dowry and the ill-treatment
thereon. It is well proved that Subadra was harassed by the persistent
conduct of the Accused in having close relationship with Alamelu. Direct
nexus between cruelty and abetment to commit suicide is well proved. But,
unfortunately, the trial Court has acquitted the Accused of this charge and
proceeded to convict him under Sec.304-B I.P.C.
40. The conviction under Sec.304-B I.P.C. cannot be altered
into Sec.306 I.P.C., since the essential ingredients are different. As
against the acquittal of the Accused under Sec.306 I.P.C., the State has not
preferred any appeal. At this distant point of time, this Court is not
inclined to issue notice to the Accused to reverse the acquittal under Sec.306
I.P.C. Suffice it to point out that the trial Court erred in ignoring direct
nexus of cruelty and suicide and erred in acquitting the Accused under Sec.306
I.P.C.
41. There is no satisfactory evidence on demand of dowry and
that Subadra was subjected to ill-treatment and cruelty ” soon before death ”
. Proximate live link between the demand and the cruelty prior to death is
not convincingly established by the prosecution. Conviction of the Accused
under Sec.304-B I.P.C. is not in conformity with the facts and evidence on
record. Hence, the finding of guilt and the conviction of the Accused under
Sec.304-B I.P.C. cannot be sustained and this appeal is to be allowed.
42. Therefore, the Judgment of Assistant Sessions Court,
Chidambaram in S.C.No.468 of 1992 (dated 23.10.1997) convicting the Appellant
/ Accused under Sec.304-B I.P.C. (two counts) is set aside and this appeal is
allowed. The Appellant / Accused is acquitted of the charge under Sec.304-B
I.P.C.(2 counts).
Index:Yes
Internet:Yes
sbi
To
1. The Assistant Sessions Judge,
Chidambaram.
2. The Assistant Sessions Judge,
Chidambaram, Through
The Sessions Judge, Cuddalore.
3. The Superintendent,
Central Prison, Cuddalore.
4. The Deputy Superintendent of Police,
Annamalai Nagar Police Station,
Chidambaram.
5. The Public Prosecutor,
High Court, Chennai.