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PETITIONER: ASOKAN

       Vs.

RESPONDENT: STATE REP.  BY PUBLIC PROSECUTOR, MADRAS.

DATE OF JUDGMENT:       05/04/2000

BENCH: G.B.Pattanaik, S.V.Patil

JUDGMENT:

PATTANAIK,J.

     These  three appeals arise out of one Sessions  Trial, wherein  the four accused persons viz.  Rajammal Accused No. 1,  Balasubramaniam Accused No.  2, Murugesan accused No.  3 and  Asokan  Accused  No.   4 stood  charged  for  different offences.   Accused Nos.  1 to 3, Rajammal,  Balasubramaniam and  Murugesan were charged under Sections 302/34 IPC,  498A IPC  and  201  IPC.   Accused Nos.  1 and  3  stood  further charged  under  Section 4 of the Dowry Prohibition  Act  and Accused  No.   4 was charged under Section 498A  IPC  alone. Prosecution  case in nutshell is that Accused No.  4  Asokan is  the husband of deceased Porkodi and they were married on 24th  of  March, 1985.  A1 and A3 are the parents of  Asokan and  A2  is  his younger brother.  It was  alleged  that  on 18.6.1985  at  10  A.M.   in  furtherance  of  their  common intention,  they  committed  murder of deceased  Porkodi  by manual strangulation and the motive behind the strangulation was  that  the  demand  of dowry was not  satisfied  by  the parents  of  the  deceased.  It was also  alleged  that  the deceased  had  been subjected to cruelty and  harassment  by making  unlawful demand and further after causing the murder of  the  deceased Porkodi, the accused persons attempted  to cause  disappearance  of the evidence by setting up  a  case that  Porkodi had committed suicide.  The defence is one  of denial.   Prosecution examined several persons to  establish the  charges  against the accused persons.  PWs 3 and 4  are the  two witnesses, who were residing upstairs of the house, where  the  accused persons were residing and  the  incident itself  occurred.  According to the evidence of PWs 3 and  4 at  10.30  A.M.,  on  the date of occurrence  the  noise  of deceased  Porkodi  was  heard and  soon  thereafter  accused Balasubramaniam  (A2) came upstairs and wanted them to  come down since his mother wanted so.  When they went downstairs, they  found accused Rajammal, Balasubramaniam and  Murugesan were  in the room, next to the hall and Porkodi was lying on the  ground with the face upward and there were injuries  on her   neck.   While  Rajammal,   initially  told  that   her daughter-in-law  had  committed  suicide by hanging  but  on being further questioned, the accused persons told that they had  committed mistake unknowingly but if any people ask PWs 3  and  4,  then  they should tell that  she  has  committed suicide  by  hanging  and they were pleading to  save  them. Soon  thereafter, PW4 left the house for office.  PW14,  who

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is  the neighbour, also heard the death news of Porkodi  and came  out  of his house, when Balasubramaniam  conveyed  him that she died on account of heart attack.  In the meanwhile, PW11 had come to the house of the accused to meet Murugesan, but  he found the house to be locked from inside and when he knocked  the door, it is the Balasubramaniam, who opened it. A1  Rajammal was also standing near him and Murugesan  asked PW11 to come after two or three days.  Asokan was working in Ashok  Leyland  Workshop and was not available in the  house and  he  was only informed by Murugesan about the  death  of Porkodi.   He, therefore, left the factory and came back  to his  house.   Balasubramaniam in the meanwhile came  to  the house  of  PW7 and told him that Porkodi had a heart  attack and her condition was serious.  On getting such information, PWs  1, 2 and 7 left for the house of the deceased and found Porkodi  lying  dead.   They also found contusions  on  both sides  of her neck and when PW1 asked the accused persons as to  what  had  happened,  the reply  was  that  Porkodi  had committed  suicide by hanging.  PW1 however entertained some doubt  as  to  the cause of death and,  therefore,  went  to Tiruvottiyur  Police  Station  along with PW2 and  lodged  a report, which was recorded by the Sub Inspector PW22 and the said  Sub  Inspector registered a case of suspicious  death. The  Police  Officer then sent information to the  Tahsildar and  then  left for the scene of occurrence and on  reaching the place of occurrence, prepared a sketch map and also made some  seizure.  The Tahsildar PW21, arrived at the place  of occurrence  at  4 p.m.  and held inquest over the dead  body and  made  some  inquiry.   In course of  such  inquiry,  he examined PWs 2, 3 and 8 and then after making Inquest Report as  per  Exh.  P.16, he sent the dead body for  post  mortem examination.   PW22,  thereafter made some seizure and  then PW23  the  Inspector  of  Police arrived  at  the  scene  of occurrence.   He examined PWs 1 and 7, who were present.  He also  made  some seizure.  PW4 who had left for  his  house, soon  after the occurrence, came back at 11.30 p.m.  and the accused  1,  2  and 3 informed PW4 that they  have  informed Tahsildar  about the fact that Porkodi has committed suicide by  hanging.   Doctor  PW5, who conducted  the  post  mortem examination, found two injuries and there was no evidence of any ligature mark around the neck.  He gave the opinion that the  deceased  died of asphyxia due to manual  strangulation (throttling)  and death must have been almost instantaneous. After  receipt  of the post mortem report, Exh.  P4  and  on completion   of  investigation,   the  Investigating  Agency altered the case to one under Section 498A and 302 IPC.  The materials  during  investigation  having revealed  that  the death  has occurred on account of non-payment of dowry,  the District  Registrar  accorded  sanction   to  prosecute  the accused  persons  under Section 4 of the  Dowry  Prohibition Act,  as  per  Exh.   P.20.  The  Deputy  Superintendent  of Police,  realising the seriousness of the crime, took up the investigation and re-examined many of the witnesses, already examined  and finally charge-sheet was filed under  Sections 302/34,  201,  498A  of  the IPC and Sec.  4  of  the  Dowry Prohibition Act.

     The  learned Sessions Judge, after a thorough scanning of  the  entire evidence, came to hold that the  prosecution has  been  able  to establish the charges for  the  offences under  Sections 302 read with 34 and 498A as well as Section 201  of  the IPC and Section 4 of the Dowry Prohibition  Act against  the  accused  No.  1 Rajammal and  Accused  No.   3 Murugesan  and  sentenced  them to life  imprisonment  under Section  302/34,  R.I.  for 6 months under Section 4 of  the

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Dowry Prohibition Act, R.I.  for three years for the offence under  Section  498A and three years R.I.  for the  offence under  Section  201 IPC with the further direction that  the sentences   would  run  con-currently.    Accused   No.    2 Balasubramaniam,  however was given benefit of doubt and was acquitted of all the charges.  The only charge under Section 498A  to A4 Asokan was held not to have been established and A4  was also acquitted accordingly.  While the two convicted accused   persons  namely  A1   and  A3  preferred  appeals, assailing  their  conviction  and sentence, the  State  also preferred an appeal against the order of acquittal of A2 and A4.  The informant also had preferred a revision against the order  of  acquittal,  recorded  by the  Sessions  Judge  as against  A2  and A4 and all these appeals and  the  revision were  heard together and disposed of by a common Judgment of the High Court.  The conviction of accused Nos.  1 and 3 was upheld  and their appeal stood dismissed.  The acquittal  of Balasubramaniam A2 was set aside so far as the charges under Section  302/34 and 201 is concerned and he was sentenced to imprisonment  for  life  for the  conviction  under  Section 302/34  and three years R.I.  for the offence under Section 201  IPC.  The order of acquittal under Section 498A however was  upheld,  so  far  as   accused  A2  Balasubramaniam  is concerned.   So  far  as Accused A4 is concerned,  the  High Court  set  aside the order of acquittal and  convicted  him under  Section 498A IPC and sentenced him to R.I.  for three years  and  thus all the four accused persons are  in  this Court in three different appeals.

     Mr.   Natarajan, the learned senior counsel, appearing for  the appellants contended that the High Court  committed serious  error  in interfering with the order  of  acquittal recorded  by  the Sessions Judge, so far as Accused Nos.   2 and  Accused No.  4 are concerned inasmuch as the sound  and convincing  reasons  given by the learned Sessions Judge  in acquitting  them  have  not been adverted to  and  this  has vitiated the impugned order of conviction.  According to Mr. Natarajan,  there is no evidence of cruelty and  harassment, so  far  as husband Asokan is concerned, and therefore,  his conviction  is  wholly  unwarranted  in  law.   The  learned counsel further contended so far as the conviction of A1 and A3  are concerned, though the High Court affirmed the  same, yet in view of the earlier statement of the witnesses before the Tahsildar, accused No.  3 undoubtedly, deserves separate consideration  and  it  must  be held  that  the  subsequent version  is an exaggerated version by roping in accused No.3 also,  and consequently the conviction of accused No.  3  is liable  to  be  interfered with.  The learned  counsel  also further  urged that the delayed examination of the witnesses by the Police affect their substantive evidence in Court and the  entire case must be viewed with suspicion.  The learned counsel also contended that an undue interest has been shown by CB.C.I.D.  and it is only thereafter, witnesses have made improvement  in their version and prosecution case must fail on that score.

     The  learned counsel appearing for the respondent,  on the  other  hand  contended  that  the  High  Court  in  its Appellate  Jurisdiction, while dealing with an appeal at the instance  of  the  convicted accused persons as well  as  an appeal  at the instance of the Government against the  order of   acquittal  of  two  of   the  accused  persons   having scrutinized  and  re-appreciated  the  entire  evidence  and having  recorded its conclusion that the accused persons are guilty of different offences, there has been no error in the

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matter  of  exercising jurisdiction nor has there  been  any error  in  appreciation of the evidence and, therefore,  the impugned  judgment  remains  un-assailable   and  cannot  be interfered with.

     Since two of the accused persons were acquitted by the Sessions Judge and their acquittal was set aside by the High Court, we thought it appropriate to re- examine the evidence on record to find out whether there has been any miscarriage of justice by erroneous appreciation of evidence by the High Court.   In  this context, it may be stated that in view  of the  provisions  contained  in Section 176 of  the  Code  of Criminal   Procedure   and    the   Investigating   Officer, entertaining  reasonable suspicion as to the cause of  death of   deceased  Porkodi,  having   intimated  the   Executive Magistrate,  as  required under Section 174 of the  Code  of Criminal  Procedure,  the Tahsildar who was duly  empowered, held an inquiry against the cause of death and while holding such  inquiry  had also recorded the evidence of  witnesses, including  PW3, which statement of PW3 has been exhibited as Exh.   D1.  Coming to the question as to whether High  Court was  justified in interfering with the order of acquittal of accused  No.  2, it may be noticed, the role ascribed by the two star witnesses PWs 3 and 4 to the accused No.  2 is that it  is he, who went upstairs, called them downstairs and  it is  he,  who  opened the door when PWs 3 and 4  knocked  the door.   The  learned  Sessions Judge examined  the  evidence pertaining to the demand of dowry and came to the conclusion that there has not been an iota of evidence that A2 demanded dowry  at  any time directly or indirectly nor is their  any evidence  that  he ill treated the deceased at any point  of time.  The only evidence of ill treatment established by the prosecution  through  the  evidence  of  PW7  is  that  when deceased  had given coffee to Balasubramaniam once, he threw it  at  her  and  such act would not amount  to  cruelty  or harassment.   So  far  as  charge under  Section  302/34  is concerned,  the Sessions Judge found that evidence of PWs  3 and  4  is merely to the effect that they have seen  accused No.   2 along with his parents and according to the  learned Sessions  Judge, that cannot be held to be establishing  the charge of murder so far as accused No.  2 is concerned.  The High  Court however relying upon the evidence of PWs 3 and 4 came  to the conclusion that since accused Nos.  1, 2 and  3 were  present inside the house when the deceased was  killed and   accused  No.   2  is   not  coming  forward  with  any explanation  as  required under Section 106 of the  Evidence Act,  it must be held that all three of them had caused  the murder  of deceased Porkodi and, therefore all three of them must  be  convicted under Section 302/34 IPC.  According  to the  High  Court  since Balasubramaniam accused No.   2  was present,  who  went upstairs and called PWs 3 and 4 to  come down  and  it  is  he, who had  given  prevaricated  version regarding the death of Porkodi, he cannot be absolved of his liability  and  there is no reason to hold that he  did  not participate in the crime.  That the deceased Porkodi died of manual strangulation, is established through the evidence of doctor  who  had conducted the post mortem  examination  and that conclusion has not been assailed before us.  Apart from the  fact  that the prosecution evidence does not  establish anything   further   than   the   fact  that   the   accused Balasubramaniam  went  and called PWs 3 and 4 and when  they came down, they found that the deceased was lying dead, with injuries on her neck.  There is no prosecution evidence that Balasubramaniam  was  present  inside  the  house  when  the deceased was strangulated nor the evidence of PWs 3 and 4 on

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whose  evidence the prosecution relies upon to establish the charges  of murder as against Balasumbramaniam,  establishes in  any manner that Balasubramaniam participated in  causing the  strangulation  of  the deceased.  In this view  of  the matter  and having examined the reasons and grounds advanced by  the Sessions Judge in acquitting Balasubramaniam of  the charge  under Section 302/34, we have no hesitation to  come to  the  conclusion  that  the High Court was  in  error  in interfering  with  the  said  order of  acquittal.   In  our opinion,  the charge of murder as against A2 Balasubramaniam cannot  be  said to have been established beyond  reasonable doubt  and  therefore, Sessions Judge had rightly given  him the benefit of doubt.

     So  far as the two other accused persons are concerned viz.   Accused  Nos.   1 and 3, the learned  Sessions  Judge convicted them of the said charges, essentially relying upon the  evidence of PWs 3 and 4 and the High Court has affirmed the  said  conviction.  But one important item  of  evidence which  has been lost sight of, is the statement of PW3  made to  the Tahsildar, while Tahsildar was holding an inquiry as required under Section 176 of the Code of Criminal Procedure and in the said statement the name of Accused No.  3 had not been  mentioned.   At  the outset, it must  be  stated  that Tahsildar  in  fact was required to hold the inquest,  since the  investigation had entertained suspicion about the cause of death of the deceased and in that connection, was holding an  inquiry.  Non- mentioning of the name of Accused No.   3 by  PW3,  in  our  opinion, cannot be  the  sole  basis  for discarding the evidence of PW3 in toto.  That apart, PW4 has fully  established  the prosecution case, so far as  accused Nos.  1 and 3 are concerned and we see no infirmity with the impugned   Judgment  of  the   High  Court,  affirming   the conviction  of  accused  Nos.  1 and 3 of the  charge  under Section  302/34 IPC.  So far as the charge under Section 201 is  concerned,  as regards Accused No.  2, we also  entirely agree  with  the submission made by Mr.  Natarajan that  the order  of  acquittal recorded by the learned Sessions  Judge has  been  erroneously  interfered with by  the  High  Court without  proper discussion of evidence on record and without discussions on the reasons advanced by the Sessions Judge in giving  benefit  of  doubt.  In our view  the  acquittal  of accused  No.   2  Balasubramaniam recorded by  the  Sessions Judge  on the evidence on record was fully justified and the same  could not have been interfered with by the High  Court and  that  also  in a perfunctory manner in which  the  High Court  has re- appreciated the evidence.  We accordingly set aside  the conviction of Accused No.2 Balasubramaniam of the charge  under Sections 302/34 and 201 IPC and acquit him  of all  the  charges.   Needless  to   mention  that  order  of acquittal,  so far as Sec.  498A is concerned, the same  has been upheld by the High Court in appeal.

     So  far  as  the  order  of  acquittal  of  Asokan  is concerned,  the learned Sessions Judge considered  materials against him in paragraph 13 of his Judgment and came to hold that excepting the evidence of PW7 that Porkodi had told him that  Asokan  had  demanded  a scooter, there  is  no  other evidence,  establishing  the  demand  of  dowry  by  accused Asokan.   PWs 3 and 4 have not in any way implicated  Asokan with  regard  to demand of dowry and in the absence  of  any such evidence, on the oral statement of PW7 that Porkodi had told  him  about  the so called demand of Asokan  about  the scooter,  the Sessions Judge has acquitted him of the charge under  Section  498A IPC, which was the only charge  against

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him.   We have also examined the evidence of PWs 3, 4 and 7. The  High  Court  however interfered with the  same  on  the evidence  of PWs 3 and 4 to the effect that it was a regular feature  of  the house where in-laws would be finding  fault with the deceased for not bringing adequate dowry.  Further, the  High  Court  has relied upon the evidence of  PW2,  who categorically  stated  that  Porkodi had told him  that  her husband  and mother-in-law are beating her for not getting a scooter.   The evidence of PW7 is also relied upon, who  had stated  that Asokan has scolded his wife for not bringing  a cot  as  dowry.  The evidence of PW7 is to the  effect  that Porkodi  had  shown  her the injuries  and  complained  that accused No.  4 had inflicted the injuries on the ground that scooter  had not been given to him as present.  The  learned Sessions  Judge  had  lost sight of the  aforesaid  material evidence  on record.  In our view, therefore, the High Court was  fully  justified  in  interfering  with  the  order  of acquittal  and  convicting the accused Asokan under  Section 498A  IPC.   So  far  as conviction under  Section  498A  of Accused  Nos.  1 and 3 are concerned, the evidence is rather clinching  and  both the Sessions Judge as well as the  High Court  have  upheld  the  conviction  and  sentence  and  no justified  ground  has been shown for our interference  with the same.

     In  the  net result, therefore, the appeal of  accused No.  2 Balasubramaniam is allowed and he is acquitted of all the charges and be set at liberty forthwith.  The appeals of other  three  accused persons against their  conviction  and sentences respectively fail and are dismissed.