ELANGO Vs. STATE

JUDGEMENT

(1.) The appellant in this appeal is the convicted accused in S. C. No. 66 of 1992 on the file of the Fifth Additional Sessions Judge, Madras. The appellant/accused was charged and tried for offences falling under Sections 304-B and 498-A of the Indian Penal Code. The learned trial Judge found him guilty in respect of both the offences and sentenced him to undergo rigorous imprisonment for seven years for the former offence and to undergo rigorous imprisonment for two years together with a fine of Rs. 500/- for the latter offence, carrying a default sentence. Both the sentences were directed to run concurrently. It is the correctness of the said judgment that is being questioned in this appeal before this Court.

(2.) Heard Mr. A. Pakiaraj learned counsel appearing for the appellant as well as Mr. R. Karthikeyan learned Government Advocate appearing on the criminal side for the respondent/State. The argument of the learned counsel for the appellant is that, even admitting that the entire prosecution case is true, yet neither the offence of dowry death nor the offence falling under Section 498-A of the Indian Penal Code, is made out. The prosecution is heavily relying upon the evidence of P.Ws. 2 to 5 to bring home the guilt of the accused. The oral evidence before the Court below appears to be a highly exaggerated version and far away from truth. Their evidence, if tested in the background of the other materials available on record, which includes the enquiry conducted by the Tahasildar and the report arising therefrom as well as the several letters marked on the side of the accused namely, Exs. D2 to D7, would make it beyond doubt that their evidence is not trustworthy to warrant a conviction. According to the learned counsel for the appellant the death of the deceased was not accelerated due to the causes attributed to the accused, but it is more probable, as established from the records, due to frustration which was looming large in the mind of the deceased herself that had brought about her death. The sum and substance of the argument of the learned counsel for the appellant is that, no conviction at all can be based on the evidence let in by the prosecution and in any event, it cannot safely be said that the evidence establishes the case of the prosecution beyond all reasonable doubt. The learned counsel would also add that aportion of the amount stated to have been paid by P.W. 2, father of the deceased, was a voluntary payment made by him as "Seer" i.e., a customary presentation provided to the bride at the time of her marriage, which is common in any system of life. The learned counsel for the appellant would also add that there is practically no material at all to support the oral evidence of P.W. 2 and others that subsequent to those voluntary presentations in the form of cash covered by the demand drafts, the accused made any further demand, which had been met. Therefore in the absence of even the primary evidence showing the finger against the accused that he had committed the offence, the Statutory presumption is not available against him. The presumption would be available, according to the learned counsel for the appellant, only when the basic materials are made available by the prosecution. It is also contended by the learned counsel for the appellant that the enquiry report of the Tahasildar, who enquired into the death of the deceased in this case, is against the State.

(3.) Opposing these arguments Mr. R. Karthikeyan learned Government Advocate for the State would contend that there is no reason at all as to why the evidence of P.Ws. 2 to 5 should be disbelieved. He also vehemently contended that P.Ws. 2 to 5 had not been cross-examined with any specific purpose and their cross-examination is only general in nature. If their evidence is accepted, which really calls for acceptance, then there is really no difficulty at all in sustaining the findings of the learned trial Judge that the deceased was subjected to cruelty as well as harassment in the context of the demand for dowry. Therefore the learned Government Advocate would contend that inasmuch as it has been established that the death of the girl in this case had taken place within a few months after her marriage, the presumption always follows that it is a dowry death and the accused is responsible.