Venkatesan vs State by the Inspector of Police, Srirangam

Arumugham, J.—The first accused is the revision Petitioner herein who along with his father and mother as accused 2 and 3 were tried by the 6th Addl. Sessions Judge, Tiruchirapalli in S.C. No. 61/87 for the offences u/s 306 and 498-A of the I.P.C. for allegedly causing his wife Sasikala to commit suicide on account of the perpetration of cruelty and demanding of dowry from her and her parents P. Ws 1 and 2 and that as a result of which she committed suicide on 1.1.1986 at the house of the revision Petitioner herein and that on recording the oral and documentary evidence adduced by the revision Petitioner and other accused that they had not committed any offences as alleged, the trial court found the revision Petitioner alone guilty under Ss. 498-A and 306 of I.P.C. and whereupon sentenced him to undergo rigorous imprisonment for a period of one year "with a fine ofs. R 200/-, in default to undergo rigorous imprisonment for a period of six months on both the counts, but he sentenced to run concurrently, however found his father and mother viz., A2 and A3 were not guilty and whereby acquitted them of all the charges and against which the revision Petitioner has preferred the appeal in CA. No. 132/88 before the learned Sessions Judge of Tiruchirapalli Division who on re-assessing the entire adduced evidence of both oral and documentary by the prosecution and the findings given by the trial court, dismissed the appeal while confirming the conviction and sentence recorded against the revision Petitioner by the trial court and against which challenging the legality and impropriety of the same, the first accused/revision Petitioner has sought the present revision as aforesaid.

The brief facts of the prosecution case which are necessary to appreciate the rival contentions projected in this revision on behalf of the respective parties are stated as follows: P. Ws. 1 and 2 are the father and mother of the deceased Sasikala who was given in marriage to the first accused during the year 1981 and that however, prior to the marriage there was a demand for some dowry by A2 and A3 from P. Ws. 1 & 2 and it was also the prosecution case that the accused were demanding a scooter from P. Ws.1 & 2 as part of the dowry which was not accepted by them, but however refused bluntly. Even after the marriage there were however it appears certain demands from A2 made to P.W.I to provide certain articles, gold ornaments and house-hold utensils to be given to the deceased Sasikala and Al as evident from Exs. Pl and P2. According to P. Ws. 1 & 2, the said articles asked for in Exs. PI and P2 were provided by them. But, even though not contending with this, it was the consistent claim of P. Ws. 1 & 2 on one hand being the father and mother of the deceased and P. Ws.3 and 4 on the other hand, being the brother of the deceased that there was a demand for mere dowry from them and that since the same was not been given, the first accused/revision Petitioner and the other two accused were not treating the prosecution parties and their family with every regard but contemptuously and that on that score, they were not even on the visiting terms. While that being so? A female child was born and according to the claim of the prosecution the delivery of which was attended by P. Ws. 1 & 2 in their own house and till that time, both the revision Petitioner and the deceased were in the habit of visiting the house of P. Ws. 1 & 2 once or twice in a month, while though they were living separately at different places. It was also the claim of the prosecution herein and A2 and A3 were living in a different place but not alongwith the first accused and their daughter the deceased Sasikala. Admittedly, according to P. Ws. 1 & 2, A2 and A3 were living at Musiri. Further, it appears from the prosecution claim that the revision Petitioner was employed in H.R. & C.E., Department firstly at Tanjore and then transferred to Trichy and were residing at kil Kondaiyampettai a suburb of Srirangam town 3 kms. away from Trichy. Both the deceased Sasikala and the revision Petitioner were living separately. Thus, it is seen PA v. 1 to 4 were living separately, A2 and A3 were living in Musiri separately and the deceased along with the revision Petitioner/1st accused were living separately, all in different places. In this back drop, it was the claim of P. Ws.1 & 2 that through the brother of the first accused on 31-1-1986 evening P. Ws. 1 & 2 were intimated that their daughter Sasikala expired and on reaching the house, P. Ws.1 and 2 found the dead body of Sasikala who committed suicide by hanging. On the evening of the same day P.W.I lodged a written complaint to the Srirangam Police Station, a case was registered and investigated. Consequently request and postmortem examination were conducted by the Executive Magistrate in accordance with the procedural law and the case was investigated by the investigating agency and then followed by the Asst. Superintendent of Police who recorded the statements, seized PI and P2, investigated the case, further from P.W.I another complaint and then with the permission obtained from the authorities concerned , a final report was laid in the court of law against the revision Petitioner and others as aforestated.

It was the specific finding of the trial court in the second para of its judgment at page-12 that though the second accused viz., the father of the revision Petitioner wrote Exs. Pl. and P2, which clearly demonstrated the demanding of the jewels, articles and the house-hold utensils as part of the dowry and that since Exs. Pl and P2 dates are relate back to the date of marriage, the same cannot provide any proximity or nexus for mulcting any criminal liability against A2 and A3 for causing the death of the deceased Sasikala on 31.1.1986 after a lapse of more than 5 years, in the context of A2 and A3 were living in a different place at Musiri. In short, the specific finding of the trial court that the prosecution has failed to establish the complicity and guilty of the 2nd and 3rd accused, not even any circumstances with any close proximity and that therefore A2 and A3 were acquitted of ail the charges.

But, however the trial court found the revision Petitioner guilty for the offences framed and tried against him for the offences charged against and accordingly he was convicted and the lower appellate court has also confirmed the same in its entirety. The legality and the impropriety of the findings of the lower appellate court as well as the trial court in finding the revision Petitioner guilty while acquitting the 2nd and 3rd accused of the same charges, was the main theme of attack projected by Mr. K.V. Sridharan, the learned Counsel for the revisioner in this case. While projecting the above said main attack, the learned Counsel drew my attention that both the courts below has erroneously approached the tendered oral and documentary evidence in this case through P. Ws. 1 to 4 and Exhibits PI and P2 and whereupon had a total mis-conception of law regarding the conviction against the revision Petitioner for the simple reason that there is no iota of evidence adduced by the prosecution pertaining to either cruelty or ill-treatment of the deceased Sasikala by the revision Petitioner from visiting the house of the prosecution witnesses. From the above said fact, the learned Counsel persuaded me to appropriate the legal presumption enunciated u/s 113A of the Indian Evidence Act as well as the offences charged against the revision Petitioner viz., Ss. 498 and 306 IPC. Basing his attack thus, the learned Counsel wants that the impugned judgment has to be set aside as clearly an error of law.

Per contra, I have beard Mr. G. Kumarayel, the learned Government Advocate appearing brought to my notice the several of the findings given by both the court below which clearly manifest as based on mere conjunctures and inferences but however not on the basis of any direct evidence.

In the light of the above rival contentions. I have gone through the tendered oral and documentary evidence very carefully, but however meticulously and I don''t come across any part of iota of evidence given by the father, mother and the 2 brothers of the deceased Sasikala pertaining to the cruelty or ill-treatment either directly or indirectly perpetrated by the revision Petitioner against his wife. It has to be noticed that as un-disputedly P.W.3 and P.W.4 though happened to be the brothers of the deceased Sasikala were not present during the time of marriage and that subsequently they were all employed, got married and living separately in different places. In this back drop, it is common knowledge to infer that these persons P. Ws.3 and P.W.4 are not deemed to be competent witnesses to speak about the alleged cruelty or ill-treatment or whatever type the overt acts of the revision Petitioner projected towards the deceased Sasikala to commit suicide and that even assuming so, they did not deserve any significance or due consideration. Coming to the evidence of P. Ws. 1 & 2, it is their admitted case that till the female child was born both their daughter and the revision Petitioner were in the habit of visiting their house once or twice in month since the time of marriage. That being so, it is not known where and as to how and in what manner the deceased Sasikala was directly or indirectly prevented by the revision Petitioner from visiting her father''s house and thereby to infer that the mental torture caused to her and consequently she could have committed suicide as was wrongly held by both the courts below? None of these P. Ws. 1 and 2 also spoke to the cruelty or ill- treatment have been allegedly perpetrated by the revision Petitioner against her wife the deceased Sasikala at any point of time. In short, there was no iota of evidence adduced by the prosecution which leads to the cruelty or ill-treatment perpetrated by the revision Petitioner against his wife since the time of marriage.

The lower appellate court while referring the case law held in Sarath Preethi Chand Charka v. State of Maharashtra (1984 S.C.C .(Crl) 487), has held that the statement given by P.W.I to the Assistant Superintendent regarding the culpability of the revision Petitioner is admissible in evidence, which according to my firm view is not a correct approach. With great constraint, I am inclined to say that the lower appellate court has not done the legal approach in so far as the admissibility of the statement given by P.W.I is concerned. In the above case/law cited the following passage has been extracted:

If the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death arisen, or before the deceased has any reason to anticipate being killed. But the necessary condition of admissibility u/s 32 of Evidence Act is that the circumstances must have some proximate relation to the actual occurrence. However, the test of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confirmed in a straitjacket. Distance of time would depend or vary with the circumstances of each case. Where death is a logical culmination of a long and continuous process, the statement regarding each step directly connected with the death would be admissible because the entire statement would have to be read as an organic whole not torn from the context. Sometimes statements relevant to or finishing an immediate motive may also be admissible as being part of the transaction of death. Manifestly, all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statements may be admissible u/s 32 of Evidence Act consequently statements which do not bear any proximity with the death or if at all are very remotely and indirectly connected with the death would not be admissible.

While extracting the legal ratio enunciated by the Apex Court, however the lower appellate court has lost sight of the fact that the dates of proximity between the two letters Exs. Pl and P2 and the date of the death of the deceased Sasikala is not at all available in this case by the prosecution. Because the period intervening covers more than 5 years as was rightly held by the trial court. Even in the subsequent case held by the Supreme Court in Shobha Rani Vs. Madhukar Reddi, it has been held as follows:

The word ''cruelty'' has not been defined and could not have been defined. It has been used in relating to human 1 conduct or human behaviours. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. A new dimension has been given to the concept of cruelty. Explanation to Section 498-A of IPC, provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to life, limb or health {whether mental or physical of the woman) would also amount to cruelty. Harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitute cruelty.

Thus, it is seen from the above enunciation of the legal ratio, to mulct the criminal liability for the offences u/s 498-A of I.P.C., the basic ingredient of cruelty either directly or indirectly by the person against whom it is alleged has necessarily to be pointed out and proved By the prosecution and thus it is manifest that in the absence of the same it is highly impossible to mulct with any criminal liability for the offences under Ss. 498-A and 306 I.P.C. Therefore, while extracting the above 2 cases held by the Apex Court, the lower appellate court has lost sight of the main theme enunciated in the said judgments and whereupon failed to make it applicable to the present case and if it is done, there cannot be any difficulty to identify that the concept of cruelty or the proximity to such cruelty causing or providing a ground for committing suicide by the deceased Sasikala is totally absent in this case.

It is also strange to see that the lower appellate court while confirming the findings of the trial court based everyone of its reliance on Exs. Pl. and P2 which the trial court has rejected and whereupon the 2nd and 3rd accused were acquitted by the trial court. In this regard, I am able to identify that the lower appellate court virtually failed to find out any proximity pertaining to the alleged cruelty either directly or indirectly perpetrated against the deceased by the revision Petitioner from any part of the evidence adduced by the prosecution in this case is clearly in my firm view a grave error and cannot be sustained in any court of law. But, the lower court has totally over-looked the non-availability of any legal evidence pertaining to the alleged cruelty by the revision Petitioner at any point of time towards his wife. So the concept of proximity between the Appellant and by the acquitted 2 accused through Exs. Pl and P2 and subsequent statements will sustain the conviction, it is apparent that both the courts below has proceeded on the same statement recorded by the Asst. Superintendent long after the suicide committed which was obviously very belated in nature and cannot form any legal basis and that therefore, I am fully constraint to hold that the inferences against the criminal liability of the revision Petitioner mulcted by both the courts below against the revision Petitioner were not on the basis of any legal evidence adduced by the prosecution, but merely on the basis of conjunctures only. It is true the wife Sasikala has met with an unfortunate end and the reason projected by the prosecution against the revision Petitioner is baseless and for which there is no iota of legal evidence which requires any consideration at any moment. Therefore, after having fully considered every aspects of the tendered evidence, established circumstances in the light of the rival contentions projected before me, I am totally unable to persuade myself to countenance the concurrent view held by both the courts below, but however to hold that the said view was totally erroneous and a wrong and illegal approach, which cannot be countenanced in the eye of law for any moment. In short, the Revision is to be allowed.

In the result, the Revision succeeds and accordingly it is allowed. The conviction and the sentence recorded by both the courts below against the revision Petitioner is hereby set aside. Fine, if any paid, is ordered to be repaid immediately.