Aruna Jagadeesan, J.@mdashThe appellant stands convicted under Sections 498A and 306 IPC and sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs. 1,000/- in default, to undergo Simple Imprisonment for two months in respect of 498 (A) IPC and sentenced to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs. 2,000/- in default, to undergo Simple Imprisonment for two months u/s 306 IPC .
2. The case of the prosecution in brief is as follows:
The deceased is the daughter of P.W.1/Viswanathan. The second accused/Saravanan and deceased Maheswari were working together in an Export Company and they developed love intimacy between them. The deceased eloped with the appellant herein and got married at Amman Temple. Subsequently, Maheswari was taken to the appellant''s house. After coming to know about the love affair and elopement, on the advice of P.W.1, marriage was performed in the Registrar''s Office and was registered on 14.10.1999. Immediately after the marriage, the deceased lived happily only for a period of ten days. She informed P.W.1 that her mother-in-law demanded five Sovereigns of jewels and also a silk saree and she was not able to live peacefully along with her mother-in-law. Therefore, P.W.1 arranged for a separate residence in the same street where he was residing. The deceased and the appellant were residing in one portion at Door No. 13. Even then, the demand for dowry did not stop and the deceased informed that there is repeated harassment from her mother-in-law and husband. In the meanwhile, Maheswari became pregnant and therefore, P.W.1 wanted to perform seemandam function. Her mother-in-law demanded five sovereigns of jewels and also a silk saree as a pre-condition for the performance of seemandam function. When P.W.1 expressed his inability to satisfy her demand, the mother-in-law of the deceased challenged him that she would perform yet another marriage to the appellant and so saying that she took the appellant also along with her. Aggrieved over this cruelty and harassment, Maheswari committed suicide by pouring kerosene and set herself to fire. P.W.1 and his wife took her to K.M.C. Hospital, despite treatment she died at 5.05 P.M. on the same day. She was admitted in the hospital at 3.45 P.M. The deceased gave statement before P.W.11, Dr. Revathy that she committed self immolation about half an hour prior to the occurrence as she was treated cruelly by her mother-in-law and husband. P.W.11, Dr. Revathy has stated that the deceased was conscious and also found pregnant in Accident Register marked as Ex.P.7.
3. On 11.05.2000 at about 10.30 P.M., P.W.1 lodged a complaint to E1, Police Station which was registered by P.W.8, the Sub-Inspector of Police in Cr. No. 503 of 2000 u/s 174 Cr.P.C.
4. Based upon the FIR, P.W.10, the Assistant Commissioner of Police took up the case for investigation, visited the place of occurrence and prepared Observation Mahazar Ex.P4 and a rough sketch Ex.P5. He recovered plastic kerosene can under Ex.P6 as M.O.1. He examined the witnesses and recorder their statement. Since the death of Maheswari was within a period of seven years from the date of her marriage, the enquiry regarding her death was referred to the Executive Magistrate.
5. P.W.9, the Tahsildar of Triplicane conducted inquest on the body of Maheswari and recorded the statement of father and mother of the deceased and also the appellant. He sent the report to the District Collector stating that there was cruelty on account of demand of dowry under Ex.P8. Thereafter, the body was sent for Post-mortem.
6. P.W.7, Dr. Manohar had conducted the post-mortem over the dead body of Maheswari and opined that Maheswari died of fire injuries.
7. The Assistant Commissioner of Police perused the case diary and filed a final report against the appellant and mother-in-law of the deceased.
8. The case was taken on file in S.C. No. 144 of 2001 on the file of the Mahalir Neethimandram, Chennai and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 11 witnesses and also relied on Exs.P1 to P13 and M.O.1.
9. On completion of the evidence on the side of the prosecution, the accused was questioned as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false.
10. The Court below, after hearing the arguments advanced on either side and looking into the materials available, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. However, he acquitted the mother-in-law of the deceased.
11. This Court heard the submissions of the learned Counsel on either side and also perused the material records placed.
12. The prosecution case is that the mother-in-law and the husband of the deceased inflicted cruelty on her and they are responsible for the death of the deceased. P.W.1, father of the deceased has stated that mother-in-law of the deceased demanded five sovereigns of jewels and also a silk saree and the same was informed to him by his daughter whenever he visited his daughter. Even on the date of occurrence, when P.W.1 wanted to perform seemandam function for his daughter, it is her mother-in-law of the deceased who again demanded five sovereigns of jewels and a silk saree and when he pleaded his inability she challenged to him that she would arrange for the second marriage to her son and took away the appellant along with her when she left the place. He has not said anything about the involvement of the appellant either in demanding jewels or subjecting the deceased to harassment.
13. Through-out his evidence, he would only allege that it is the first accused/mother-in-law of the deceased who demanded jewels and harassed his daughter for not fulfilling her demand. P.W.2 who is a friend of P.W.1 has deposed to the effect that only the mother-in-law of the deceased had demanded five sovereigns of jewels and a silk saree after the marriage and laid a pre-condition for performing the seemandam of the deceased. P.W.3, the neighbour of P.W.1 who has stated that when the mother-in-law of the deceased demanded jewels and silk saree, they pleaded on behalf of P.W.1 about his inability to fulfill the demand in view of his financial constrain. She also stated that it is the mother-in-law of the deceased who challenged to P.W.1 that she would arrange for second marriage to the appellant if they did not fulfill the said demand. P.W.4 & P.W.5 who are also residing nearby the house of P.W.1 have stated in same line with that of P.W.2 & P.W.3 in making the demand and challenge made by her when P.W.1 pleaded his inability to fulfill the demand.
14. Thus, the prosecution has relied upon the evidence of P.W1 to P.W5 but none of them has deposed against the appellant either to have demanded of jewels or subjected the deceased to harassment. Admittedly, he has not made any challenge to P.W.1 that he would marry second time if the demand was not fulfilled.
15. The trial Court disbelieved the evidence of P.W.1 pointing out to the evidence of P.W.4 that P.W.1 was not present in the house of the deceased when the mother-in-law visited the house of the deceased and therefore, the learned Judge has held that no offence was made out as against the first accused/mother-in-law of the deceased. However, based on Ex.P9, the statement made by P.W.1 to the Tahsildar and Executive Magistrate that the appellant demanded five sovereigns of jewels and subjected the deceased to cruelty and held that there is corroboration from the evidence of P.W.5, herein who stated that the accused/appellant without earning money by doing any work sold the jewels of Maheswari and was spending money. The learned trial Judge presumed that the appellant would have demanded five sovereigns of jewels. The said finding is not based on the evidence available on record.
16. P.W.1 in his evidence before the Court has not stated about the demand of five sovereigns of jewels and a silk saree made by the appellant. In fact, P.W2 to 4 have categorically stated in their evidence that mother-in-law who came to the house of the deceased made the said demand for the performance of Seemandam function. Merely because P.W.5 has stated that the accused was not going to work properly, no presumption could be drawn that he would have made the demand and harassed his wife for not fulfilling his demand. In fact, there is no such evidence for his demand from any of the witnesses. Under Ex.P9, a statement was made by P.W.1 to the Tahsildar P.W.1 has stated that on 11.05.2000 at about 11.30 A.M., the first accused/mother-in-law of the deceased and two other ladies came to the house of the deceased and attacked the deceased and taken away the dresses of the appellant due to which the deceased had committed suicide by immolating herself. Therefore, the findings arrived by the trial Court that the attitude of the appellant was the direct cause for the suicide committed by the deceased is not supported by any evidence placed on record.
17. Mr. Hasan Mohammed Jinnah, the learned Additional Public Prosecutor pointed out to the statement made by the deceased to Dr. Revathy, P.W.11 that she had committed suicide because of cruelty suffered by her in the hands of her mother-in-law and husband. It is seen that she was brought to the hospital only by her father/P.W.1. She had sustained burn injuries all over her face, neck, chest and abdomen. Though P.W.11, Dr. Revathy has said that the deceased was conscious and was answering to question, it cannot be assertively said that she would have given the statement without being influenced by her father. It is because even according to P.W.1 and other witnesses on the date of occurrence, only the mother-in-law had visited the house of the deceased and made such a demand and admittedly, the appellant was not present at the time of occurrence. Therefore, in the absence of any evidence to corroborate the statement of the deceased, merely on the said statement no presumption could be drawn that the deceased suffered cruel treatment in the hands of the appellant. It is pertinent to point that the trial Court acquitted the mother-in-law as it did not rely upon the alleged statement made by the deceased to the Doctor.
18. Even according to the prosecution, it is the mother-in-law who has demanded the jewels and a silk saree on the date of occurrence and admittedly, the appellant/husband was not in the house. P.W.1 & P.W.2 in their evidence before the Court and also to the Tahsildar has not attributed anything about the appellant either to have harassed the deceased by making such demand or inflicting any other act of harassment on her. She has been admitted at 3.35 P.M. in the hospital and died at 5.05 P.M. on the same day. It is seen from the Accident Register that she has sustained injuries on her face, neck, abdomen and all over her body. She has been brought and admitted in the hospital by her father and there is every chance for her to make such statement prompted by her father out of anger he had with the mother-in-law of the deceased. In view of extensive burn on her it is not possible for her to make such statement voluntarily.
19. The Hon''ble Supreme Court in
It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration.
20. Bearing in mind the above dictum laid by the Hon''ble Supreme Court in the present case, a mere statement made by the deceased to the Doctor cannot form the basis of the conviction of the appellant because of want of corroboration. Therefore, I am of the considered view that the trial Court has convicted the appellant not based on legal evidence available on record and therefore, the same is liable to be set aside.
In the result, the Criminal Appeal is allowed. The judgment of conviction and sentence imposed on the appellant herein by the Court of Magalir Neethimandram, Chennai in S.C. No. 144 of 2001 dated 27.01.2003 is set aside and he is acquitted of the charges levelled against him. He is directed to be released forthwith unless his presence is required in connection with any other case. The bail band if any executed by the appellant shall stand terminated and the fine amount if any paid is ordered to be refunded to him.
