Achuthan Nair v. State of Kerala and Manoharan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` MONDAY, THE 6[TH] DAY OF DECEMBER 2021 / 15TH AGRAHAYANA, 1943 CRA(V) NO. 19 OF 2019 ``` ## **`AGAINST THE JUDGMENT IN SC NO.446/2007 OF THE COURT OF ASSISTANT SESSIONS JUDGE,NEYYATTINKARA`** ## **`C.C.NO.277/2000 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KATTAKADA`** ## **`APPELLANT/BROTHER OF DECEASED:`** ``` ACHUTHAN NAIR, AGED 61 YEARS, S/O.NARAYANA PILLAI, ELAYAMPARA VEEDU, KANCHIYOOR KONAM, KATTAKKADA POST, THIRUVANANTHAPURAM-695 572. ``` ``` BY ADVS. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR ``` ## **`RESPONDENTS/STATE OF KERALA & ACCUSED:`** - **`1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA.`** - **`2 THE STATION HOUSE OFFICER, NEYYARDAM POLICE STATION, NEYYARDAM POST, THIRUVANANTHAPURAM 695 572.`** - **`3 MANOHARAN, AGED 56 YEARS, S/O.MADHAVAN PILLAI, PULIMOODU VEEDU, MYLAKARA, MUKUNTHARA DESOM, KALLIKKADU VILLAGE, NEYYARDAM POST, THIRUVANANTHAPURAM 695 572.`** ``` BY ADVS.SRI.SHAJIN S.HAMEED SMT.AMBIKA DEVI S, SPL.GP [ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C] ``` ``` THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 06.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 2 ``` ``` K.Vinod Chandran & C.Jayachandran, JJ. --------------------------------------------- Crl.Appeal (V) No.19 of 2019 --------------------------------------------- Dated this the 6[th] December, 2021 ``` ## **`JUDGMENT`** ## **`Vinod Chandran,J.`** ``` The brother of the deceased is in appeal against the acquittal ordered by the Trial Court, of the accused, the husband. Originally a case was registered under S.498A of the Indian Penal Code [for brevity, 'IPC'] and after five years, on a fresh investigation, the charge was altered to S.304B IPC. ``` ``` 2. Learned Counsel for the appellant Sri.Ajit G.Anjarlekar contended that the Trial Court egregiously erred in acquitting the accused. There was ample evidence to indicate that the deceased was subjected to harassment and also physical violence by the accused, the husband. Even if fresh demand for dowry was not made, as found by the Trial Court, the very allegation was that the accused was forcing the deceased to sell the property given to her at the time of marriage. This in effect is a claim ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 3 ``` ``` for dowry. On denial of which, the accused was subjected to physical violence, which led to her eventual suicide. The medical evidence is very clear and it cannot be said that all the injuries were caused by a fall, even if the story of the accused is believed. There were injuries on the inner thighs, which could not have been caused by a fall. ``` ``` 3. Learned Counsel for the 3[rd] respondent Shajin S.Hameed, sought to support the order of acquittal. It was argued that there was no complaint made on the death of the sibling, especially when the brother, who was also a witness in this case, was working as a Head Constable in the jurisdictional Police Station. The case itself was initiated after 16 days, when admittedly there was a proposal from the family of the deceased to settle the properties on the children; which the accused refused to accept. Then a case was registered under S.498A, which was later, after 5 years, altered to S.304B IPC. ``` ``` 4. Chandrappa and others v. State of Karnataka (2007 (4) SCC 415) restated the principles regarding the scope of the power of appellate Court to re-appreciate, ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 4 ``` ## **`review or reconsider evidence and interfere with an acquittal. The general principles were encapsulated in the following manner:`** ``` "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: ``` ``` (1) An appellate court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded. ``` ``` (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. ``` ``` (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. ``` ``` (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. ``` ``` (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” ``` ``` 5. The allegation of death by suicide having been caused by reason of the harassment and violence ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 5 ``` ``` perpetrated on the deceased by her husband on the demand for dowry was sought to be established by PW1 to PW5. PW1, the wife of the appellant/PW2 was the sister-in-law of the deceased. The allegation in chief-examination was that whenever the accused, who was in the defence services, came home on leave, he used to pester the deceased with demand for dowry and sale of her property. When the deceased declined, she used to be subjected to violence. However, in cross-examination, PW1 admitted that the accused had planted rubber in the property given to his wife, but still the usufructs were taken by the husband of the witness, PW2. She also admitted that out of the 25 sovereigns given to the deceased at the time of marriage, 12 sovereigns were given to the elder brother of the deceased for pledging it. She admitted that the deceased had sought for return of the said ornaments, which is now with PW1 & PW2. ``` ``` 6. PW2 is PW1's husband and brother of the deceased. He also spoke of the harassment and violence in tune with what PW1 stated. He was the Head Constable in the jurisdictional Police Station at the time of the ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 6 ``` ``` death of his sister, which occurred at her matrimonial house. He had not made any complaint against the accused at that time. PW2 was present at the time of inquest and his statement at the time of inquest was that he had directed his cousin Venugopalan Nair to go to the Police Station and report the death. He had not given any statement regarding the death of his sister having been caused by reason of the harassment, on grounds of demand of more dowry, nor was there any statement that the accused had been harassing his wife on account of the denial to sell the property in her name. To a specific query whether the accused had asked him to sell the property, he answered that his help was requested to sell the property, which was not stated to the Police. To the question as to why PW2 did not give a statement at the initial stage, he answered that the S.I. asked him to not do that, but admitted that he was not in inimical terms with the S.I. From the evidence of PW1 and PW2, it was also revealed that they did not have any direct knowledge of the alleged physical and mental harassment perpetrated on the deceased by the accused. ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 7 ``` ``` 7. PW3 is the brother-in-law of the deceased, who also spoke in chief-examination about the demand for dowry and physical violence. He admitted that PW2 was taking the income from the property given to the deceased. He also admitted that there was no asset with the mother of the deceased; which cuts at the root of the story of demand of dowry. PW4 is a neighbour of the deceased and accused, who turned hostile before Court. PW5 is an aunt of the deceased, who spoke of a demand of Rs.50,000/- as made by the accused, from the family of the deceased. The said witness was first examined by the Police after about 5 years and statement recorded. The statement made of a demand of Rs.50,000/- was not stated by any of the witnesses examined, who were the close relatives of the deceased, ie, the sibling and the in- laws. ``` ``` 8. PW6 is the Doctor, who conducted postmortem examination on the deceased. Strangely enough the prosecution failed to elicit the specific injuries from the Doctor and merely marked Ext.P2 Postmortem Certificate issued by the Doctor. The Doctor spoke of 17 ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 8 ``` ``` injuries, of which injury No.1 caused the death, which indicates hanging of the deceased. The other injuries, according to the Doctor, were contusions and abrasions. The Doctor specifically stated in chief-examination that injuries 2 to 17 could be caused by coming into contact with a hard object. In cross-examination a question was put, that injury Nos.2 to 4, on the inner side of the body cannot be caused by contact with hard object by hitting on the side of a cot and what about the other injuries; a complex question. It was answered that “if those parts of the body would come into contact with hard object with sufficient force, that injury could be caused”. It cannot be said the Doctor had opined that the injuries on the inner parts could not be caused by hitting on a hard object. ``` ``` 9. PW7 is the Tahsildar, who attested the inquest report, Ext.P3. PW8 is the Sub Inspector of Police, who conducted initial investigation under S.498A IPC. He said that the accused had not absconded and was at his residence. It was his categoric statement that there was no complaint made by the family of the ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 9 ``` ``` deceased, nor did they make any statement to the Police that there was demand for dowry or for sale of the property. PW2, the Head Constable, also did not seek for recording his statement or registering a case. PW9, the Dy.S.P., took up the investigation after five years, since PW8 had conducted investigation unauthorisedly. Even at that time, PW1 to PW3 had not stated about the demand for dowry or sale of property. The learned Trial Court found that there are only general allegations of ill-treatment and cruelty, without any details; which allegations were not raised at the first instance. The children of the accused were not questioned by the Police, nor were they examined before Court. The Court below noticed that there was no dispute regarding death till the 16[th] day. On that day, according to PW2, there was a discussion regarding how the properties of the deceased are to be settled. There arose a disagreement. It was then that a complaint was raised under S.498A IPC, which was later converted to one under S.304B IPC. The overall circumstances, according to the learned Judge, does not commend a conviction under S.304B IPC. ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 10 ``` ``` There was no claim for dowry or sale of the property, which stood in the name of the deceased. In fact there is a probable theory set up by the defence in cross- examination that the deceased was depressed for reason of half of her gold and the property in her name being held by PW2, her own brother. The injuries found on her body were said to be not caused in the hanging. The accused had an explanation that the deceased, while taking the goat out for grazing, fell down with the goat dragging her on the ground. The accused had a plausible explanation for the injuries. ``` ``` 10. We notice the caution expressed by the Hon'ble Supreme Court in Chandrappa[supra] insofar as the Appellate Court, considering the order of acquittal, not being entitled to substitute its reasoning over a reasonable view as expressed by the Trial Court. We remind ourselves, as cautioned by the Hon'ble Supreme Court, that an accused acquitted by the Trial Court is entitled to two presumptions, one, that every person shall be presumed to be innocent unless he is proved guilty and the other that, with the acquittal ordered by ``` ``` Crl.Appeal (V) No.19 of 2019 ``` ``` 11 ``` ``` the Trial Court; which had the advantage of seeing the demeanour of the witnesses and weighing their credibility in the scale of reasonableness. This affirms twice over the claim of innocence of the accused. ``` ``` We find absolutely no reason to interfere with the reasoning of the Trial Court. We reject the appeal confirming the order of acquittal. ``` ``` Sd/- ``` ``` K.VINOD CHANDRAN JUDGE ``` ``` Sd/- ``` ``` C.JAYACHANDRAN JUDGE ``` ``` sp ```