Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05.01.2015 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)No.561 of 2008 Abubakkar ..Petitioner versus 1.The State represented by The Inspector of Police, Kottaipattinam Police Station, Pudukottai District.
2.Kaboorkhan ..Respondents Petition filed under Section 397 r/w 401 of the Criminal Procedure Code, against the order of acquittal and judgment passed by the learned Principal District and Sessions Judge, Pudukottai, made in S.C.No.133 of 2007 dated 20.03.2008.
!For Petitioner : Mr.S.Palanivelayutham ^For Respondents : Mr.P.Kandasamy, Government Advocate (Crl.Side) for R1 Mr.Mahadevan for Ms.AL.Gandhimathi for R2 :ORDER
P.W.1, the father of the victim girl, viz.
Roobia, aggrieved by the order of acquittal dated 20.03.2008 made in S.C.No.133 of 2007 passed by the learned Principal District and Sessions Judge, Pudukottai, has filed this revision.
2.A perusal of the materials available on record would disclose the following facts: The accused, viz.
Kaboor Khan got married to the daughter of P.W.1, and according to P.W.1, at the time of marriage, he has given 5 sovereigns of gold jewels and a gold chain weighing 2 sovereigns and a cash of Rs.1,10,000/-, a sum of Rs.22,000/- for purchasing a two-wheeler and to meet out other expenses, a sum of Rs.10,000/-.
In all, a sum of Rs.1,42,000/- was given a dowry, and within three months from the date of marriage, the accused asked his wife to get a sum of Rs.80,000/- for starting a business / shop by means of dowry and it was not acceded to by the parents of the deceased.
The accused used to taunt his wife repeatedly to get money from her parents for the purpose of starting business.
One such occasion on 27.06.2006, the accused brought his wife to her parental home and demanded a sum of Rs.80,000/- by way of dowry and it was mollified by the parents of the deceased and immediately after returning the house, once again, the accused has harassed his wife.
Unable to bear with the same, she committed suicide by hanging on 28.06.2006.
3.P.Ws.1 and 2 are the parents of the deceased.
P.W.3 is a neighbour.
P.Ws.4 and 5 are the residents of the North Street at Ammapattinam.
On hearing the news, the parents went to the house and thereafter, P.W.1 proceeded to Manamelkudi Police Station and lodged a complaint at about 6.00 a.m.on 28.06.2006, which was marked as Ex.P1.
P.W.8, based on Ex.P1 registered the FiRs.Information Report in Crime No.92 of 2006 under Section 174 Cr.P.C., and the printed FiRs.Information Report was marked as Ex.P11 and he despatched the copies of the same to his higher officials.
4.The Circle Inspector / P.W.10, on receipt of the FiRs.Information Report, commenced investigation and proceeded to the scene of occurrence at about 20.00 hours on 28.06.2006 and in the presence of P.Ws.4 and 5, prepared the Observation Mahazar as well as sketc.and recovered M.O.1 ?.
Yellor Colour Saree, in the presence of witnesses, under the cover of Mahazar, marked as Ex.P18.
Thereafter, he recorded the statements of P.Ws.1, 2, 3, 4, 5 and three other witnesses.
5.On 28.06.2006, P.W.11- Revenue Divisional Officer, on receipt of Ex.P11- FiRs.Information Report, conducted inquest and prepared Inquest report under Ex.P19.
During the couRs.of inquest, P.W.11 recorded the statement of the accused which was marked as Ex.P20.
Statements of witnesses P.Ws.1 and 2 were also recorded, which were marked as combined statement of P.Ws.1 and 2, marked as Ex.P21.
He also recorded the statements of other witnesses.
6.P.W.6 took the dead body of the deceased for conducting post mortem and P.W.9 ?.
Surgeon attached to the Government Hospital at Aranthangi, has commenced the post mortem at about 3.45 p.m.on 29.06.2006 and noted the following features: ?.(1)ABM on the left cheek.
(2)ABM on the medial aspect of the left leg.
(3)On the right side lower jaw, an spindle shaped about 3 cm x 1 + cm bruise present.
The body was fiRs.seen by the undersigned at 3.45 p.m., on 29.06.2006.
Its condition then was Rigor Mortis passed off in both upper limbs present.
Post mortem commenced at 3.45 p.m.on 29.06.2006.
Appearances found at the post mortem: A well nourished female body lies on back.
Symmetrical in nature.
Bluish discolouration present over the upper aspect of neck, eyelids, face and upper chest.
Eye lids closed.
Eyes black in colour.
Frothy bloody discharge from both the nostrils and mouth.
No discharge from the eaRs.Jaws lowered.
Tongue inside mouth.
Teeth 8/8 / 8/8.
No external injuries found.
On the right side lower jaw, an spindle shaped about 3 cm x 1 + cm bruise present.
Faeces passed.
Vaginal discharge present.
No ligature mark is seen.
Hyoid bone intact.
Mammary glands well developed.
Internal examination: Opening of the abdomen uniform.
Liver: Normal, wt.
1500 gMs.c/s oozes dark red coloured blood.
Spleen: Congested, wt.
180 gm c/s oozes dark red coloured blood.
Kidneys: Congested, Right wt.
130 gm, Left wt.
140 gm.
c/s oozes dark red coloured blood.
Stomach: Filled with particles digested food particles about 75 ml.
Both small and large intestines normal, c/s empty.
Bladder Uterus normal 5 x 4 x 2.5 cm wt.
50 gm, c/s empty Lungs: Congested, Right 450 gm, Left 400 gm.
c/s dark red coloured blood oozes out.
Subgaleal harmorrhages are present on both sides of the skull in parietal region.
On opening of the skull membranes are intact.
Brain: Wt.
1400 gm, pale in colour c/s pale in colour.
No fracture of austermity bones.
No fracture of the pelvic bones.
No fracture of the ribs.
No fracture of the skull bones.?.
7.After receipt of the bone report, the Doctor gave a final opinion that she died due to asphyxia on account of hanging.
The post mortem report was marked as Ex.P12 and the Final Report was marked as Ex.P15.
P.W.10, who was conducting investigation, was transferred and in his place his successor P.W.12 took up investigation.
She recorded the further statements of P.Ws.1 and 7 and based on the report of the Revenue Divisional Officer, altered the Sections to one under Sections 498-A, 309 and 304-B IPC.
The alteration report was marked as Ex.P26.
On 14.11.2006, P.W.12 effected arrest of the accused at about 6.00 a.m., and after recording the statement, produced the accused before the Jurisdictional Magistrate Court for remand and he was remanded to judicial custody.
P.W.12 was transferred and his successor, viz.
P.W.13 took up investigation.
After recording the statements of P.Ws.7, 9 and other witnesses, he filed Final Report charging the accused for the commission of offences under Sections 498-A and 304-B IPC and the case was committed to the Court of Judicial Magistrate, Aranthangi.
8.The Judicial Magistrate, Aranthangi, on receipt of the Final Report, has issued summons to the accused.
Thereafter, the case was committed to the Court of Principal Sessions, Pudukottai.
The Principal Sessions Court, Pudukottai, on appearance of the accused, framed charges against the accused under Sections 498-A and 304-B IPC, and questioned the accused and he pleaded not guilty of the charge.
The prosecution, in order to sustain their case, examined P.Ws.1 to 12 and marked Exs.P1 to P26 and also marked M.O.1.
The accused was questioned under Section 313(1)(b) of Cr.P.C., with regard to incriminating circumstances in the evidence and the accused denied it as false.
9.On behalf of the accused no oral evidence was let in and no documents were marked.
The Trial Court, on consideration of the oral and documentary evidence, had acquitted the accused by awarding the benefit of doubt vide judgment dated 20.03.2008.
Aggrieved by the same, P.W.1-father of the victim girl has filed this revision.
10.The learned counsel for the petitioner has drawn the attention of this Court to the impugned judgment as well as the original records and would submit that the Trial Court has given weightage to some trivial discrepancies and overlooked very many aspects which were elicited during the testimonies of the prosecution witnesses.
He would further submit that the prosecution, during the oral and documentary evidence, has established the guilt on the part of the accused beyond any reasonable doubt.
Therefore, the Trial Court has committed a grave error in acquitting the second respondent / accused by awarding the benefit of doubt.
11.Per contra, Mr.P.Kandasamy, learned Government Advocate (Crl.Side) appearing for the fiRs.respondent State, would submit that as against the judgment of acquittal passed by the Trial Court, the State has not preferred any appeal.
12.The learned counsel for the second respondent / sole accused has drawn the attention of this Court to the impugned judgment and submitted that even as per the version of P.W.1, no specific mention of the charge has been made and what was demanded is a sum of Rs.80,000/- to start a business by the second respondent / accused, and it cannot be construed as dowry and the other material aspects have been rightly taken note of by the Trial Court, and on a proper appreciation of oral and documentary evidence, the Trial Court has rightly acquitted the accused.
He would further add that the scope of interference in the judgment of acquittal for this Court in exercise of its revisional jurisdiction, is very limited.
13.This Court has carefully considered the rival submissions and also perused the judgment as well as the original records.
14.A perusal of the original records, more particularly Ex.P1-Complaint lodged by P.W.1 would disclose that the accused came to his house along with his wife (daughter of P.W.1) and demanded a sum of Rs.80,000/- to start a business / shop.
The statement of P.W.1 was also recorded by P.W.11 and the perusal of the said statement would also disclose that both his daughter and her husband (accused) used to come to his house and demanded money.
15.A perusal of the testimonies of the witnesses, more particularly, P.W.4 would also disclose that there was no specific evidence available with regard to the demand of dowry, and the Trial Court also recorded the fact that during the couRs.of investigation, none of the neighbours were examined to prove the alleged harassment and also placed reliance upon the Division Bench judgment of the Bombay High Court in Aftab Alam Abdul Hamid Ansari v.
State of Maharashtra, reported in 2006 (1) Crimes 172, wherein it has been stated that any demand for money by accused husband requiring victim wife to bring from her parents so that accused husband could set himself up in business would not constitute dowry.
16.In the considered opinion of this Court, the dictum laid down in the above said judgment is squarely applicable to the facts of the present case.
A perusal of the materials available on record did not specifically disclose any demand of dowry on the part of the second respondent / accused.
17.As already pointed out, the accused, for the purpose of starting a business, wanted his wife to pledge some jewels and there was difference of opinion and immediately the victim girl went inside the house and committed suicide by hanging.
Though the death of the daughter of P.W.1 is unfortunate as it had happened within 7+ months from the date of marriage, the fact remains that in the absence of any material with regard to the demand of dowry on the part of the second respondent-husband, he cannot be convicted for the offences under Sections 498-A and 304-B of IPC.
The Trial Court, on a proper application of mind to the materials placed before it, has rightly acquitted the accused and this Court, on an independent application of mind to the entire materials placed, is of the considered opinion that the reasons assigned by the Trial Court to acquit the second respondent, warrant no interference.
18.In the result, the judgment of acquittal rendered by the Trial Court is confirmed and the Criminal Revision Case stands dismissed.
Index : Yes/No 05.01.2015 Internet : Yes/No KM M.SATHYANARAYANAN, J.
KM To 1.The Inspector of Police, Kottaipattinam Police Station, Pudukottai District.
2.The Principal District and Sessions Judge, Pudukottai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Crl.R.C.(MD)No.561 of 2008 05.01.2015