State by Public Prosecutor, Madras vs Radhakrishnan, Madhavanpillai, Gowri and State by S.I. of Police, Eraniel

V. Bakthavatsalu, J.—The Criminal Appeal is preferred by the State against the order of acquittal passed by the learned Judicial Magistrate, Eraniel in C.C. No. 82 of 89. The Criminal Revision Case is preferred by P.W. 1, the complainant in that case, against the order of acquittal.

The charges against the Respondents/accused are that the witness Pushpam was subjected to ill-treatment and dowry harassment on 19.7.88 and that they are liable to the punished for an offence u/s 498-A IPC. The second charge against the accused is that they demanded Pushpam to bring Rs. 15,000/- as dowry and therefore, they are liable to be punished u/s 4(1) of the Dowry Prohibition Act. The third charge against the accused is that in the same transaction, the accused removed jewels worn by Pushpam for the purpose of marriage of sister of first accused and that they are liable to be punished for an offence u/s 406 IPC. The accused denied the above charges.

To substantiate the charges, the prosecution has examined P.Ws. 1 to 15 and marked Exs.P-1 to P-5.

The case of the prosecution is as follows:

P.W.1 is the wife of the first accused. The second accused is the father and third accused is the mother of the first accused. The marriage between P.W.1 and the first accused was solemnized on 14.4.86 and at that time, a sum of Rs. 10,000/- was paid as dowry besides 20 sovereigns of jewels and vessels worth about Rs. 5,000/- P.W.2 the father of P.W.1 also executed a settlement deed in favour of P.W.1 in respect of 40 cents of land.

After the marriage P.W.1 was living with the first accused at Mallan Kodu. The first accused demanded P.W. 1 to give her jewels for the marriage of Sarojini, the sister of first accused, for which P.W. 1 refused to give her jewels. Thereafter, the accused told P.W. 1 to go to her parents house. P.W.2 came to the house of the first accused and took P.W.1 and at that time, P.W.1 was pregnant. Thereafter, P.W.1 was taken to the house of the first accused for ceremony and after one week, she was again brought to the house of P.W.2.

On 3.10.87 a male child was born at Thakkalai Government Hospital. Then, after 41 days, P.W. 1 and her child were taken to the house of the first accused. P.W.1 and first accused were living for about three months. Again, the accused insisted P.W.1 to give her jewels for the marriage of Sarojini and when P.W.1 refused to give her jewels, the jewels were snatched from her body at 10.30 p.m. on 8.5.88, when P.W.1 raised alarm, the relatives of first accused and neighbours gathered there. On 9.6.88, the marriage of Sarojini, who is D.W.2 herein, was solemnised. All the jewels belonging to P.W.1 were given to Sarojini. When P.W.2 came to the house of the first accused, he was informed about the fact of snatching the jewels from P.W. 1. When P.W.2 questioned the first accused, he was pushed out from the house by the first accused. Thereafter, the matter, was conveyed to mediator. The first accused told them that a sum of Rs. 20,000/- has to be paid to her sister and her husband and that therefore, P.W. 1 should bring the amount of Rs. 25,000/- by selling the land, for which P.W.1 refused. At that time, the first accused beat P.W.1 with a stick. The second accused also beat her. The third accused did not provide food to P.W.1. The first accused also threatened that he would contract second marriage if the required amount is not brought by P.W.1. On 18.7.88 at about 7.30 p.m. P.W.1 was mercilessly beaten by the accused. P.W.1 informed the matter to her father through P.W.11.

On 19.7.88, at about 5.30 a.m. the first accused also snatched the child from P.W.1. P.W.1 went to her father''s house and narrated the incident to P.W.2, her father. On 17.2.89, a female child was born to her. At the time of her marriage, seethana articles such as silver lamp, tumblers etc. were given to the accused and those articles are in the custody of the first accused.

P.W. 14 the Sub-Inspector, attached to Eraniel Police Station received the complaint given by P.W.1 and registered the case in Crime No. 287/88, under Sections 498-A, 420, 406, 343 and 506-II IPC. Ex.P-4 is the printed copy of the FIR.

P.W. 15 the Inspector took up investigation and inspected the spot and prepared Ex.P-5, the sketch. He also produced the child before the Magistrate, Padmanabapuram. When P.W. 1 gave complaint for custody of the child, the child was handed over to her. P.W. 15 recorded the statement of the witnesses and after completing the investigation, he filed charge sheet on 30.11.88.

The accused denied the evidence when they were examined u/s 313 Code of Criminal Procedure. On behalf of the accused, three witnesses were examined and Ex.D-1 and M.Os. 1 and 2 were marked.

D.W.1 is the husband of D.W.2, Sarojini. D.W.3 is the Photographer. D.W.1 has stated that he did not demand any dowry for marrying D.W.2. D.W.2 has stated that she is employed in Tamilnadu Slum Clearance Board as Draftsman drawing a monthly salary of Rs. 2040/- and that she herself purchased the jewels and that the jewels belonged to her and that the jewels shown in M.Os.1 and 2 were purchased at Vummidi Ethiraj and Sons. D.W.3 the Photographer has stated that he took photos shown in M.Os.1 and 2.

On a consideration of oral and documentary evidence, the trial Court acquitted the accused of all the charges. Aggrieved by the said order of acquittal, the State has filed the appeal and P.W.1 has preferred this revision.

It is contended by the Appellant/State and P.W.1 that the trial Court has not properly appreciated the evidence of P.Ws. 1 to 3 and that the trial Court erred in accepting the evidence of D.Ws. 1 and 2. The evidence adduced by the prosecution will show that PW. 1 was subjected to cruelty and ill-treatment. The trial Court failed to take into consideration Section 113-A of the Evidence Act and Section 8-A of the Dowry Prohibition Act. The trial Court failed to see that gold ornaments belonging to P.W.1 were taken away by the accused and that in any event, the evidence of P.W.1 should not have been brushed aside by the trial Court.

On the other hand, learned Counsel for the Respondent accused contended that the prosecution has suppressed the FIR and that Ex.P-1 is not the FIR and that it is admitted that the complaint was given on 19.7.88 and that therefore, the complaint given under Ex.P-1 subsequent to the said date is hit u/s 162 Code of Criminal Procedure and that trial Court is justified in acquitting the accused especially when most of the witnesses turned hostile and that the ingredients of the offence under Sections 406, 498-A IPC and Dowry Prohibition Act are not established beyond any doubt and that in any event, the reasons given by the trial Court for acquitting the accused cannot be interfered with by the appellate Court.

There is no dispute that P.W. 1 is the wife of the first accused and accused 2 and 3 are parents of the first accused. It is also not disputed that the marriage between P.W.1 and the first accused was solemnised on 14.4.86. The trial Court on a consideration of the entire evidence produced before it has come to the conclusion that the prosecution failed to prove all the charges levelled against the accused.

It is well settled that the High Court in an appeal has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed vide Dargahi and Others Vs. The State of U.P., and Roop Singh and Others Vs. The State of Punjab, . It is also well settled that in exercising the power conferred by the Code, the High Court will always give proper weight and consideration to the views of the trial Judge as to the credibility of the witnesses and the presumption of innocence in favour of the accused vide Noor Khan Vs. State of Rajasthan, . Bearing the principles of law laid down in the above decisions, it has to be decided whether the conclusions reached by the trial Court in acquitting the accused are sustainable in law.

Though, prosecution has examined 15 witnesses, P.Ws.5 to 9 turned hostile and they did not support the prosecution case. It is no doubt true that notwithstanding the fact that the above witnesses turned hostile, if the evidence given by other witnesses are satisfactory and convincing, there can be no bar to accept such evidence and convict the accused. Learned Counsel for the revision Petitioner and learned Government Advocate contended that the evidence of P.W.1 and 11 would clearly establish the case of the prosecution that P.W. 1 was subjected to ill treatment and dowry harassment and that the jewels were snatched away by the accused from her body.

The first charge against the accused is that P.W.1 was subjected to dowry harassment and ill treatment on 19.7.88. The third charge is that the jewels worn by P.W.1 were snatched away and that the jewels were utilised for the marriage of Sarojini, the sister of the first accused. The third charge u/s 406 IPC is framed against the first accused only. It is contended on behalf of the accused that the original complaint given by P.W.1 regarding the commission of the offence has not been produced and that therefore. Ex.P-1 the complaint alleged to have been given by P.W.1 is hit u/s 162 Code of Criminal Procedure. In support of the same, reliance is placed on a decision reported in The State of Bombay Vs. Rusy Mistry and Another, In the above decision, it is held that if a document is not a FIR, not being the first complaint by the informant made to the police, it is hit by Sections 161 and 162 Code of Criminal Procedure. In the instant case, if we turn to Ex.P-1 at the top of Ex. P-1, it is stated Inspector of Police, Eraniel. It is stated in the above complaint that on 19.7.88 the Petitioner reported the matter to the Inspector of Police, Eraniel and that no action was taken on this matter. Ex.P-1 was given on 31.8.88. It is also stated in Ex.P-4, the FIR that information was given on 31.8.88. It is, thus, seen that the investigation seems to have commenced only on the basis of Ex.P-4, which was registered on 31.8.88. P.W.1 has stated that she gave complaint on 19.7.88 to Eraniel Inspector at about 5.30 p.m. and that the above complaint was written in Tamil. She has admitted that she does not know the contents of Ex.P-1, since the complaint is written in English. It is, thus, manifestly clear from the admission of P.W.1 that a complaint was already lodged with the Inspector of Police, Eraniel on 19.7.88.

P.W.14 the Inspector has stated that he received the complaint on 31.8.88. P.W. 14 has also admitted that P.W.1 herself presented the complaint before him. P.W. 15 the Investigation Officer has admitted that he did not ascertain during the enquiry as to the fact of complaint given by P.W.1 to Eraniel Inspector. It is thus, clear from the above facts, that the complaint was already lodged by P.W.1 in Tamil on 19.7.88, before the date of Ex.P-1. The above complaint has not been produced by the prosecution. If a complaint was already given by P.W.1 regarding the commission of the offence, Ex.P-1 and P-4 cannot be taken as FIR, since it is hit u/s 161 and 162 Code of Criminal Procedure. The failure on the part of the prosecution to produce the earliest information given on 19.7.88 would only probablise the contention of the defence that P.W. 1 has exaggerated certain minor incidents and the case has developed from stage to stage. The fact that the earliest information was not produced before the Court has to be taken into consideration while assessing the evidence adduced by the prosecution.

In the complaint it is stated that gold jewels were snatched from her body on 8.5.88 and that some of them were sold and the sale proceeds and unsold jewels were utilised for the marriage of Sarojini, D.W.2, which took place on 9.6.88. To prove the above act of snatching away the jewels, the prosecution has examined P.W. 10. P.W. 10 has stated that there would be frequent quarrels between P.W. 1 and the first accused and that the first accused removed jewels from P.W.1 for the marriage of sister of the first accused. P.W.1 is the brother''s daughter of P.W. 10. In chief examination, he has given evidence as though he personally know the act of snatching away the jewels. But, in cross examination, he has stated that he came to know of the fact of removing of jewels from the person of P.W.1 only when P.W.1 revealed the same to him. P.Ws.2 and 3 the father and brother of P.W.1 have admitted that the alleged cruelty and snatching away of jewels were revealed to them only by P.W.1. Therefore, the evidence of P.W. 10 would not support the case of the prosecution that the accused snatched away jewels from P.W.1 on a particular day.

The accused have also adduced evidence to show that the jewels worn by D.W.2 on the date of the marriage belonged to her. D.W.1 the husband of D.W.2 has stated in his evidence, that he did not demand any dowry for marrying D.W.2 and that the above marriage is a love marriage. It is seen from the evidence of D.W.2 that she was earning Rs. 300/- per month when she was an Apprentice during the year 1984-85 and she joined the service as Draftsman on a monthly salary of Rs. 2040/-. She has stated that she purchased necklace and bangles. In support of the same she has also produced a receipt Ex.D-1. As D.W.2 herself was employed drawing monthly salary she was in a position to purchase jewels for her. Therefore, the trial Court has rightly accepted the evidence of D.W.2 on this aspect of the case.

In Ex.P-1, it is stated that some of the jewels were sold. What are the jewels belonging to P.W.1 in the custody of accused are not clearly stated in the complaint. The list of the above jewels or article are not given in the complaint. The above inconsistency has not been explained by P.W.1.

It is, in this context, the earliest information given by P.W.1 would play a vital role. Hence, the non-production of the earliest complaint and the inconsistency between the evidence of P.W.1 and Ex.P-1 if taken into consideration, it would probablise the case of the defence that the jewels worn by D.W.2 on the date of her marriage belonged to her. There are no reasons to discard the evidence of D.W.2 on this aspect of the case.

It is alleged by P.W.1 that the jewels and articles presented to her on the date of the marriage are in the custody of the accused. P.W.15 the Investigation Officer did not take any steps to recover the articles belonging to P.W. 1 kept in the house of the accused. Neither P.W.1 nor P.W.2 issued any notice to the accused to return the articles and vessels in their custody. The list of the articles entrusted to the accused and in the custody of the accused are not given in a separate list. In the absence of such materials, the prosecution cannot be said to have established the offence u/s 406 IPC. Therefore, I hold that the trial Court is justified in acquitting the accused for the alleged offence u/s 406 IPC.

Regarding the cruelty, P.W.1 has stated that she was beaten by the accused. P.W.1 has stated that on 18.7.88 at about 7.30 p.m. she was mercilessly beaten by the accused and that on an earlier occasion also she was subjected to cruelty. The prosecution has also let in evidence to prove that there were frequent quarrels between the husband and the wife. As already stated, the above witnesses turned hostile. P.W.11 has stated that on one day P.W.1 was weeping in front of her house and that when he enquired her she told him that the first accused insisted her to bring the documents executed by her father and that before he conveyed the above fact to P.W.2. P.W. 1 returned to her father''s house. P.W.11 has admitted in cross examination that he used to do work for P.W.2. He has stated that he did not go to the house of the first accused. P.W.2 is living at Puliyur Kurichi and the accused are residents of Mallan Kadu. When P.W.11 did not visit the house of the first accused on any day, how he could have contacted P.W. 1 at Malan Kadu. In the above circumstances, I hold that the evidence of P.W.11 will not strengthen the case of P.W. 1 that she was subjected to cruelty and ill treatment by the accused.

The trial Court has discussed the entire evidence and has come to the conclusion that the offence u/s 4 of the Dowry Prohibition Act is not made out. The second charge is that the accused demanded P.W.1 to bring Rs. 15,000/- as dowry. P.W.1 has stated that at the time of marriage jewels and cash were given and that a settlement deed was also executed by her father, Ex.P.3 the gift deed will show that P.W.2 executed the document in favour of P.W.1 out of love and affection. It cannot be said that the execution of the above document in favour of P.W.1 by P.W.2 was made towards demand of dowry by the accused. The trial Court has elaborately discussed the above aspect of the case and has held that there are glaring contradictions in the evidence on this aspect. There are contradictions as to when the above amount and jewels were given to P.W.1. It is clear from Section 3 Sub-clause (2) that giving and taking dowry will not apply to presents which are given at the time of a marriage to the bride without any demand) and the presents which are given at the time of a marriage to the bridegroom without any demand. It is contended on behalf of the prosecution that u/s 8-A of the Dowry Prohibition Act that the burden of proving that the accused had not committed an offence shall be on him. But, before drawing the above presumption, it must be established that the jewels and articles were given at the time of the marriage under a demand. The trial Court has discussed the entire evidence and has come to the conclusion that the offence u/s 4 of the Dowry Prohibition Act is not made out. I see no ground to differ from the reasons assigned by the trial Court on this aspect of the case.

P.W. 10 has stated that jewels weighing 20 sovereigns and cash of Rs. 10,000/- and vessels worth about Rs. 5000/- were given for the marriage. In cross examination, he has stated that he did not participate in the negotiations preceded the marriage, and that he does not know the details of Seethana articles given for the marriage. P.W.13 has stated that the articles and jewels were given for the marriage. In cross examination he has stated that only through P.W.3 he came to know that the jewels weighing 20 sovereigns were given and that only from P.W.3 he came to know that the value of Seethana articles is Rs. 5000/-. He has stated that on 7.2.86, betrothal ceremony was conducted and that from 7.2.86 till the date of marriage, he did not see the accused at all. It is, thus, clear that the evidence of P.Ws. 10 and 13 would not improve the case of the prosecution. As already stated, the list of articles entrusted to the accused are not given in a separate list. There are no materials to show that the accused demanded Rs. 15,000/- more as dowry after the marriage. Thus, on a consideration of the entire evidence, the trail Court has come to the correct conclusion in acquitting the accused. The conclusion reached by the trial Court on the basis of the evidence cannot be said to be vitiated by any perversity. For the above reasons, I hold that the prosecution failed to establish that the accused are guilty of the offences with which they are charged. I hold that the order of acquittal passed by the trial Court is based on proper appreciation of evidence. I hold that there are no merits in the appeal and the revision.

In the result, both the criminal appeal and the criminal revision case are dismissed. The order of acquittal passed by the trial Court is confirmed.