Anil Kumar v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943 CRL.A NO. 2397 OF 2007 [AGAINST THE JUDGMENT IN SC NO.635/2005 DATED 6.12.2007 OF THE IIND ADDITIONAL SESSIONS JUDGE,KOZHIKODE] ## APPELLANT/ACCUSED: **==> picture [78 x 152] intentionally omitted <==** ANILKUMAR, S/O.KUNHUNNI KURUP EDAPPALLI HOUSE,NADAKKUTHAZHE AMSOM, ARAKKILAD DESOM, VADAKARA. BY ADVS. T.K.SANDEEP ARJUN SREEDHAR ARUN KRISHNA DHAN ALEX ABRAHAM VEENA HARIKUMAR ## RESPONDENT/S: **==> picture [78 x 71] intentionally omitted <==** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY SRI.RANJIT GEORGE, SR.PP THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.Appeal No.2397/2007 ## JUDGMENT The appellant is the accused in S.C.No.635 of 2005 on the file of the IInd Additional Sessions Court-II, Kozhikode. The aforesaid case arises from crime No.422 of 2004 of Vatakara Police station. The offences alleged against the petitioner is under Section 304B of the Indian Penal Code. 2. The prosecution case is as follows: The appellant married the deceased Bindu, D/o.Narayanan Nair, as per the Hindu custom on 23.10.1998, lived as husband and wife in Edappally Veedu at Arakkilad Desom. It is alleged that, the appellant always used to harass and ill-treat the deceased physically and mentally by constantly demanding more gold ornaments and money. On account of the aforesaid 3 Crl.Appeal No.2397/2007 harassment and the ill-treatment, on 07.07.2004 at 6.30 am, she poured kerosene over her body and also over the body of her son, aged 3½ years and set ablaze herself and her son. Due to the injuries, both of them died. Initially, the crime was registered under Section 174 Cr.P.C. as unnatural death, and later, the same was converted, and the offence under Section 304B of IPC was added. After completing the investigation, the final report was submitted. After that, the Additional Sessions Court conducted the trial of the case as S.C.No.635 of 2005. 3. In support of the prosecution case, PWs 1 to 12 were examined, and Exts.P1 to P7 were marked. After the closure of prosecution evidence, the appellant was examined under Section 313 Cr.P.C., and the incriminating 4 Crl.Appeal No.2397/2007 materials brought out during the course of the trial were put to him, which he denied and pleaded innocence. In his defence, the appellant examined DW1. The contradictions in the evidence of PWs. 2 and 3 were marked as Exts.D1 to D4. 4. After evaluating the materials on record, the Sessions Court arrived at the finding that the appellant is guilty of the offence punishable under Section 304B IPC. Accordingly, he was sentenced to undergo rigorous imprisonment for seven years. This appeal is filed challenging the aforesaid finding of guilt and consequential sentence. 5. Heard Sri.Arjun Sreedhar, learned counsel appearing for the appellant and Sri.Ranjit George, the learned Public Prosecutor for the State. 5 Crl.Appeal No.2397/2007 6. The learned counsel for the appellant contends that the prosecution failed to prove the demand of dowry in this case. It is pointed out that, even though the specific case of the prosecution was that initially at the time of marriage, the appellant was given five sovereigns of gold by PW2, and later 2½ sovereigns of gold were taken back by PW2. The appellant used to illtreat the deceased by making constant demands of the same. However, it is pointed out by the learned counsel for the appellant that the versions given by PWs.2 and 3, who are the father and mother of the deceased respectively are completely different from the aforesaid prosecution case. It was pointed out that the aforesaid witnesses explicitly denied the prosecution case and set up an entirely different version as to the demand for 6 Crl.Appeal No.2397/2007 dowry. The learned counsel further disputed the date of marriage itself. Even though, the date of marriage as per the prosecution case is 23.10.1998. But according to the appellant, their marriage has taken place in the year 1996 and to substantiate the same, he relies on the evidence of DW1. It is also the case of the appellant that the investigation was not conducted with respect to the cause of the fire, and there are no specific materials produced by the prosecution to establish that the death of the deceased was a suicide. According to the learned counsel, no materials are available on record to arrive at a conclusive finding that the death was a suicide. Based on such materials, the learned counsel contends that the prosecution failed to establish the guilt of the accused; therefore, he seeks interference of 7 Crl.Appeal No.2397/2007 this Court in the finding of conviction by the learned Sessions Judge. 7. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. The learned Public Prosecutor would contend that the materials available on record coupled with the presumption as contemplated under Section 113B of the Evidence Act are sufficient to hold that the appellant is guilty of the offences. Regarding the dispute raised by the appellant in connection with the date of the marriage of the deceased, the specific case of the learned Public Prosecutor is by placing reliance upon Ext.P4 marriage certificate, which stands proved by PW7, the Secretary of Koothali Grama Panchayat. If the aforesaid date is accepted, the death occurred within the period of 7 years, and, therefore, the presumption 8 Crl.Appeal No.2397/2007 applies to this case. In such circumstances, the learned Public Prosecutor seeks to dismiss the above appeal. 8. The crucial evidence relied upon by the prosecution is that of PWs.1,2,3, and 5. PW1 is the person at whose instance the crime was registered. According to him, Exts.P1 is the F.I. statement, and Ext.P1(a) is the FIR. As per the F.I. statement, the incident occurred at 7.15 a.m. on 7.7.2004. As per the F.I. statement, at 7.15 a.m. on the date of occurrence, while he was sitting in the stationary shop nearby, he heard a noise from the house of the deceased and immediately, he rushed to the place of occurrence. When he reached, he saw fire on the roof of the hut where the deceased and the appellant were residing. Using the water hose from a nearby 9 Crl.Appeal No.2397/2007 residence, they stopped the fire, and after breaking open the door on the rear side of the house, they went inside. Upon entering the house, he could see the burnt bodies of the deceased Bindu and her child. It is further stated in Ext.P1 that the marriage of the said Bindu took place eight years before the incident, and she had two children. The reason for suicide was stated to be the mental agony of the deceased Bindu. She poured kerosene on herself and set ablaze. He expressed no suspicion about the death. 9. While examined as PW1, he deposed more or less in the same manner as mentioned in Ext.P1 F.I.statement. Further, he stated that he could feel the smell of kerosene when he entered the house. In cross-examination, he admitted that he did not mention the smell of kerosene to the 10 Crl.Appeal No.2397/2007 police when the F.I.statement was recorded. Even in the further statement recorded by police, such a statement was not given by him. 10. PW2 is the father of the deceased. While being examined, his specific statement is that at the time of marriage, the appellant demanded 25 sovereigns of gold and an amount of Rs.10,000/- as dowry. The appellant was given ten sovereigns of gold at the time of marriage. Thereafter, whenever his daughter came to his residence, she used to state that the appellant was demanding more amounts as dowry. Later, after the marriage of his younger daughter was conducted, he sold his property, and out of the sale proceeds of the said property, he gave an amount of Rs.10,000/- to the appellant herein. He further states that even after the receipt of the said amount, the appellant used to send the 11 Crl.Appeal No.2397/2007 deceased to his residence by making demands for more gold and amounts. According to him, on the date of the incident, he got information by phone at 6.45 a.m. as to the death of his daughter, and he immediately rushed to the residence of the deceased. Upon reaching there, he could find that the body of his daughter and his grandson were placed outside the residence and the house was found wholly burned. Thereafter, the police came to the spot and the prepared mahazar, and his statement was recorded. 11. During the cross-examination, PW2 stated that the constant demand made by the appellant through his daughter was not informed to the police when his statement was recorded. He also stated that he was making such a statement for the first time in court, and never before had he 12 Crl.Appeal No.2397/2007 mentioned the same to anyone. He also admitted that he never complained about any ill-treatment of his daughter at the hands of the appellant herein. The crucial aspect to be noticed in this regard is the denial made by PW2 as to the prosecution case. The specific case of the prosecution is that at the time of marriage, the appellant was given five sovereigns of gold by PW2. Out of which, 2½ sovereigns were returned. The appellant used to demand the aforesaid gold back and this was the reason for the illtreatment against the daughter of PW2. In the evidence of PW2, the above mentioned case was utterly denied. His version is that he gave Rs.10,000/-and ten sovereigns of gold at the time of marriage, and later, a payment of an additional sum of Rs.10,000/- was made. He also states that the said amount was given as a share 13 Crl.Appeal No.2397/2007 to all the three children, and the payments were voluntary. Thus when I examine the evidence of PW2, the crucial aspect to be noticed is that he is taking a completely different stand than he had taken while the police recorded the statement. The contradictions and omissions were specifically marked during his examination, and the same was proved while the investigating officer was examined. 12. Another evidence is that of PW3, the mother of the deceased Bindu. She also reiterates the statements made by the appellant in the manner as claimed in the deposition of PW2. She also denies the prosecution case in specific terms and reiterates the handing over of 10 sovereigns of gold to the appellant at the time of marriage and payment of a further sum of Rs.10,000/-. Another crucial addition made by 14 Crl.Appeal No.2397/2007 PW3 relates to an incident claimed to have occurred two days before the date of occurrence. PW3 states that two days before the death of the deceased, as required by the deceased, she went to the residence of the appellant. When she reached there, the appellant assaulted the deceased in front of PW3, being infuriated because the deceased called PW3 into his home. She did not mention this incident in any of her previous statements. The aforesaid aspect is clearly admitted by saying that she is making such a statement before the court for the first time. Another crucial aspect is that, such a statement was not mentioned by PW2 as well. When I consider the aforesaid statement and also the fact that the version projected by the said witnesses is in a substantial deviation from the 15 Crl.Appeal No.2397/2007 prosecution case, I am of the view that much reliance cannot be placed on them. 13. Another crucial evidence is that of PW5. PW5 is the neighbour of PW2. It is evident from the deposition of PW2 that at the time of the incident, they were residing near the residence of PW5. It is discernible from the evidence of PW5 that she had acquaintance with PW2 three months before the date of the incident. She stated that the deceased Bindu used to share her difficulties due to the illtreatment of the appellant. She also stated that she attended the marriage of the deceased upon the invitation of PWs 2 and 3. However, when I examine the evidence of PW5, certain glaring aspects can be seen. Even though PW5 has stated that the deceased Bindu constantly used to mention the ill-treatment, it is evident from 16 Crl.Appeal No.2397/2007 the statement of PW2 that the said Bindu visited the house where PW2 was last residing(near the residence of PW5) only once. Yet another aspect is that, even though PW5 has claimed that she attended the marriage of the deceased Bindu, which took place in the year 1998, at the invitation of PWs 2 and 3, she stated that she had acquaintance with PW2 only for three months before the date of the incident. In such circumstances, I am of the view that much reliance cannot be placed upon the evidence of PW5. She also admitted that she mentioned the aforesaid aspects for the first time before the court and has not stated anything about this to any person. In re-examination, she clarified that she had not stated the facts reported to her by the deceased Bindu to the parents of Bindu as she never wanted to disclose the same. 17 Crl.Appeal No.2397/2007 14. These are the crucial materials on which the prosecution relies to establish the guilt of the accused. One of the essential contentions put forward by the learned counsel for the appellant is regarding the date of marriage. According to him, the marriage occurred in 1996, and the death was in 2004. If the year of marriage is taken as 1996, no presumption as available for the offence under Section 304B IPC would be attracted. The specific case of the prosecution is that the date of marriage was 23.10.1998. The prosecution relies on the evidence of PW7 and Ext.P4 marriage certificate to substantiate the aforesaid date. PW7 had clearly stated that he prepared Ext.P4 after examining the documents maintained in the Panchayat. The learned counsel for the appellant seriously challenges Ext.P4 marriage certificate, mainly raising a 18 Crl.Appeal No.2397/2007 contention that basic identifying features such as address and other details of the parties named in the certificate are lacking. Therefore it was contended that no reliance could be placed upon the aforesaid certificate. However, I am of the view that the said contention of the learned counsel for the appellant is not sustainable. PW7 has clearly stated that the details contained in Ext.P4 are based on the records maintained by the Panchayat. Indeed, the full address of the parties mentioned therein is not provided in Ext.P4. However, the aforesaid certificate contains the name of the mothers of the respective parties. In addition to the above, the date of marriage mentioned by PW2 and PW3 tallies the date mentioned in the certificate. Considering the aforesaid aspects, I am of the view that the date mentioned in 19 Crl.Appeal No.2397/2007 Ext.P4 can be accepted. This is particularly because the said date is reiterated by PW2 and PW3, who are the parents of the deceased and the persons who are parties to the aforesaid function. The only evidence that the appellant is relying on to substantiate his contention is the evidence of DW1. Further, on going through the evidence of DW1, it has to be noticed that he is not mentioning a specific date, and his evidence is only to the effect that the marriage occurred in the year 1998. In such circumstances, I am of the view that the contention put forward by the learned counsel for the appellant in this regard is only to be rejected. 15. The other contention is whether necessary ingredients for holding the appellant guilty for the offence under Section 304B IPC is 20 Crl.Appeal No.2397/2007 established by the prosecution. The evidence indeed suggests the date of marriage as 23.10.1998, and therefore, the death occurred within a period of seven years. In such circumstances, the applicability of presumption arises. The next aspect relates to the circumstances which resulted in the death. One of the contentions of the learned counsel for the appellant is that the police failed to conduct an investigation to find out whether the death of the deceased was on account of suicide or not. Even though the prosecution has a case that the death of the deceased was suicide, there are no materials specifically suggesting the same. One of the crucial aspects to be noticed in this regard is the evidence of PW1. During his examination, he stated that when he entered the house, he could find that the burned 21 Crl.Appeal No.2397/2007 roof had fallen on the bodies of the deceased persons and to recover their bodies, they had to remove the same. Similarly, even though it is stated that the deceased had set herself ablaze by pouring kerosene, no investigation is seen conducted as to whether any kerosene was in fact used or not. Even though PW1 had stated in his deposition that when he entered the house, there was a smell of kerosene, in his F.I. statement, the same is not seen mentioned. Similarly, the fact that the roof had collapsed and fallen over the body of the deceased is also stated by PW10 as well. Similarly, no investigation is also seen conducted to find out the cause of the fire as well. Admittedly, the house was a thatched hut. It is a fact that a 22 Crl.Appeal No.2397/2007 scene mahazar and site plan were not prepared by the investigating officer. This is also a crucial omission to be considered in this regard. Thus, when I consider the aforesaid aspects, there is serious doubt as to whether the death of the deceased was on account of suicide. The possibility of the same resulting from a fire accident cannot be ruled out. 16. Even if it is assumed that the death was on account of suicide, the ingredients of the offence under Section 304B are also lacking in this case. The prosecution commenced based on a version that at the time of marriage, the appellant was given five sovereigns of gold, out of which 2 ½ sovereigns were taken back by her family. The appellant made the ill-treatment by demanding the 2½ sovereigns above. The learned counsel for the appellant has raised a 23 Crl.Appeal No.2397/2007 contention that the same would not amount to the demand of dowry because of the reason that that demand was about something which was taken back from him. However, I am of the view that the consideration of the aforesaid question is not necessary because of the reason that, going by the evidence of PW2 and PW3 to whom the aforesaid demands were allegedly made, they have clearly denied the aforesaid case. Instead of such a case, a new version was put forward by PW2 and PW3 to the effect that at the time of marriage, ten sovereigns of gold were given to the appellant, and later, a further sum of Rs.10,000/- was granted to him when the properties of PW2 were sold. Even though PW2 claimed that the same was paid to him when he made constant demands for a further amount through the deceased Bindu, on one occasion, he 24 Crl.Appeal No.2397/2007 stated that he gave the said amount voluntarily to the appellant as the share of the said Bindu. He also states that the other daughters were given similar amounts as well. Thus when I examine the entire evidence and prosecution case, there is a lack of a consistent case. The prosecution case has been entirely denied by the crucial witnesses, namely PW2 and PW3, and a completely different case is revealed from their evidence. Another crucial aspect to be considered along with this aspect is that the allegations of ill-treatment were never made before this incident to any person. Thus in the light of gross inconsistency and lack of supporting materials regarding the demand of dowry, I am of the view that the offence under Section 304B is not attracted against the appellant herein. The learned counsel for the 25 Crl.Appeal No.2397/2007 appellant relies on the judgment of the Hon’ble Supreme Court in Biswajith Halder @ Babu Halder & Ors. v. State of West Bengal [2008(1)SCC 202] in which, at paragraph 14, it was observed as follows: _“14. In this case we find that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. There is also no finding in that regard. This deficiency in evidence proves fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with the demand for dowry. (See: Kanchy Ramchander v. State of A.P. (1996 SCC (Crl.) 31). Since the prosecution failed to prove that aspect, the conviction as recorded cannot be maintained.”_ On appreciation of the materials, I am of the view that this is a fit case in which the 26 Crl.Appeal No.2397/2007 aforesaid principles are to be made applicable. As mentioned above, the prosecution failed to advance a consistent case regarding the demand for dowry and the ill-treatment based on the same. To attract the presumption under section 113B of the Evidence Act, essential ingredients for making out the offence of 304B have to be established by the prosecution, which they failed to do. Similarly, there is lack of evidence indicating the specific reason for the death of the deceased. To be precise, there is grave suspicion as to whether the death of the deceased was a suicide by setting ablaze herself or not. In such circumstances, I am of the view that the finding of guilty entered by the Sessions Court is liable to be interfered with. The appellant is entitled to the benefit of the doubt; thus, I find merit in this appeal. 27 Crl.Appeal No.2397/2007 Accordingly, this appeal is allowed and the judgment dated 6.12.2007 in S.C.No.635/2005 on the file of the IInd Additional Sessions Court, Kozhikode, is hereby set aside. The appellant is found not guilty, and he is acquitted of all the charges. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk