Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945** **CRL.A NO. 51 OF 2011** **AGAINST THE ORDER/JUDGMENT IN CP 10/2008 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS ,KOLENCHERRY** ## **SC 406/2008 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM APPELLANT/S:** BABU, S/O. KUTTY, AGED 48 YEARS VETTUKATTIL VEEDU, PAZHAMTHOTTAM KARA,, PULINCHODU BHAGAM, AIKKARANADU NORTH VILLAGE. BY ADV SRI.T.D.ROBIN ## **RESPONDENT/S:** STATE OF KERALA REP. BY DY.S.P.MOOVATTUPUZHA (CRIME NO.116/2008 OF THE, PUTHENCRUIZ POLICE STATION), REPRESENTED BY THE, ADDITIONAL PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 51 OF 2011 2 (Dated this the 8[th] day of November, 2023) ## **JUDGMENT** The appeal is directed against the judgment in S.C.No.406/2008 of the Court of the Additional Sessions Judge (Adhoc-II), Ernakulam, finding the appellant guilty and convicting and sentencing him for the offence under Section 498A of the Indian Penal Code (IPC in short). The appellant was the sole accused in the above case. ## **Brief relevant facts** 2. The prosecution case is that the accused was married to a lady named Laly (deceased) on 09.09.1992. They have a son (PW1) born in their wedlock. The accused is a Mason. The accused developed a relationship with a lady named Santha (PW8) – his helper. The deceased used to question the relationship, and there used to be frequent quarrels between the couple. The accused used to assault the deceased, under the influence of alcohol, and used to tell her to go and die. On 18.03.2006, at about 10 p.m., the deceased poured CRL.A NO. 51 OF 2011 3 kerosene and immolated herself. She sustained serious burn injuries and lost her life on 21.03.2006 at 12 noon at the Medical College Hospital, Kolencheri. The accused had cleaned the place of occurrence and caused the disappearance of the evidence. Hence, the accused committed the offences under Sections 498A, 306 and 201 of the IPC. 3. The Police laid the final report before the jurisdictional Magistrate, who committed the case to the Court of Sessions as per the proceedings in C.P. No.10/2008. The accused appeared and denied the substance of the accusation. In the trial, the prosecution examined PWs 1 to 17 and marked Exts.P1 to P12 and MOs 1 and 2 in evidence. The accused denied the incriminating circumstances appearing against him by filing a written statement under Section 313 of the Code of Criminal Procedure ('Code', for brevity). 4. The court below, after analysing the materials CRL.A NO. 51 OF 2011 4 placed on record, by the impugned judgment, found the accused not guilty of the offences under Sections 306 and 201 of the IPC but found him guilty and convicted him for the offence under Section 498A of the IPC, and sentenced him to undergo simple imprisonment for three months and pay a fine of Rs.5,000/- and, in default to undergo simple imprisonment for a further period of two months. 5. Confronted with the said judgment, the appeal is filed. 6. Heard; Sri.T.D.Robin, the learned Counsel appearing for the appellant and Smt.Seetha S., the learned Public Prosecutor appearing for the respondent State. 7. The learned Counsel appearing for the appellant argued that the court below has convicted the appellant based on surmises and against the basic tenets of criminal law. The fact that the learned Sessions Judge has CRL.A NO. 51 OF 2011 5 found the appellant not guilty of the offence under Section 306 of the IPC by itself substantiates that the prosecution has failed to prove that the deceased had lost her life by committing suicide. He drew the attention of this Court to the oral testimonies of PWs 1 to 4 and 6 to fortify his argument that the prosecution has failed to prove the alleged incident. He submitted that the sterling witnesses, namely PWs 1 to 3 and 6, have admittedly not witnessed the incident. He referred to the written statement filed by the appellant under Section 313, wherein the accused had raised the defence that the death was an accident and not a case of suicide. He contended that the court below has ignored the defence version. He also argued that the prosecution has no explanation whatsoever for the delay in lodging Ext.P1(a) FIR and has also withheld the best piece of evidence i.e., by not recording the dying declaration of the deceased under Section 32 of the Indian Evidence Act. He drew the attention of this Court to the deposition of PW4, who gave Ext.P1(a) FIR, stating that the deceased was CRL.A NO. 51 OF 2011 6 conscious and had told her that she did not want to speak anything about the incident. This aspect shows that the deceased was fully conscious, and her dying declaration could have very well been recorded, which was deliberately not done by the prosecution because they were sure that it would go against them. The above omission attracts the presumption under Section 114 (g) of the Indian Evidence Act. Similarly, the prosecution has miserably failed to prove the presence of kerosene at the place of the incident or on the body of the deceased, which again leans in favour of the accused. Furthermore, it was only PW2 – the neighbour – who saw the deceased in an alleged ball of flames coming out of the house. The other witnesses have only seen the deceased in the hospital. The murky evidence, especially the finding of the court below that the accused is not guilty of the offence under Section 306, is sufficient to hold that the accused is not guilty of the alleged offence, and the benefit of doubt ought to be given to him. He placed reliance on the decision in **Neeraj vs. State of M.P.** CRL.A NO. 51 OF 2011 7 [1991 KHC 1650] of the Madhya Pradesh High Court to canvass the position that, when the prosecution does not challenge the evidence of the prosecution witness, and none of the witnesses is declared hostile, then the prosecution cannot reprobate and contend that the testimony of a particular witness is uncreditable. He then took me to the oral testimony of PW8 who testified that she was no longer working with the accused and they had no relationship as alleged. Therefore, the prosecution case is false. He summed up by contending that the prosecution has miserably failed to prove its case beyond reasonable doubt, which entitles the accused to an order of acquittal. He hence urged that the appeal be allowed. 8. The learned Public Prosecutor vehemently defended the impugned judgment. She placed reliance on the decision of the Hon'ble Supreme Court in **Girdhar Shankar Tawade v. State Of Maharashtra** (2002 KHC 600), to canvass the position that, even if an accused is acquitted under Section 306 of the IPC, a CRL.A NO. 51 OF 2011 8 conviction will lie under Section 498A of the IPC because the ingredients of the two offences are distinct and separate. She contended that the materials placed on record were sufficient to hold that the appellant had committed the offence. Hence, she prayed that the appeal be dismissed. 9. Is the conviction and sentence passed against the appellant justifiable? 10. The prosecution case is that the accused had married the deceased on 09.09.1992, and PW1 was born in their wedlock. There were frequent quarrels between the accused and the deceased due to the accused’s relationship with PW.8. The accused used to always tell the deceased to go and end her life, which led her to commit suicide by pouring kerosene and self-immolating herself on 18.03.2006. The accused died of burn injuries on 21.03.2006. Thereafter, the accused caused the disappearance of the evidence, and, thus, he committed CRL.A NO. 51 OF 2011 9 the above offences. 11. To prove the prosecution case, the prosecution examined PW1 – the son of the deceased and the accused – who was 14 years old at the time of the incident, PWs. 2 & 6 – the neighbour couple of the accused and deceased, PW.3 – the sister of the deceased, PW.4 – a relative of the deceased, who gave Ext.P1 FIS and PW.8 – the person with whom the accused had an alleged relationship. 12. In addition to the above witnesses, the prosecution examined PW.5 to prove the inquest report, PW.7 – the ration shop dealer to prove that PW.1 had purchased kerosene from his shop on 09.02.2006, PW.9 – the brother of the accused who turned hostile to the prosecution, PWs.10 & 11 – the Doctors who examined the deceased and the Lecturer of Forensic Science Medicine, who conducted the autopsy of the dead body, respectively, PW.12 – the Village Officer, PWs.13 & 14 to prove the marriage between the accused and the CRL.A NO. 51 OF 2011 10 deceased. PWs.15 – the Sub Inspector who recorded Ext.P1, PW.16 – the Sub Inspector, who conducted the investigation and PW.17 – the DYSP, who also conducted the investigation. 13. On an appreciation of the oral testimonies of the so-called sterling witnesses, namely, PW.1, PW.2, PW.3, PW.4 & PW.6, it is quite evident that none of the above witnesses have seen the incident which led to the deceased sustaining burn injuries. PW2 is the first person to see the deceased in a ball of flame running out of the house, while PW2 was going to the toilet situated outside her residence. It is on her alarm that the other persons gathered. PW.6 – her husband had testified that, when he returned from work by about 6 p.m., by 7 p.m., he heard a quarrel in the residence of the accused and the deceased. Admittedly, PWs.2 & 6 do not maintain a cordial relationship with the family of the accused and the deceased. CRL.A NO. 51 OF 2011 11 14. PW.1 – the couple's son – has admitted that he was in his aunt's house at the time of the incident. He visited his house around 7 p.m., and found his mother happy and, thereafter, he returned to his aunt’s house. It is later that he came to learn that his mother suffered burns. It is at about this time, PW 6 had said he heard a quarrel in the house of the accused and deceased. This is a contradiction in the prosecution case. 15. PW.3 – the sister of the deceased – had seen the deceased only in the hospital after midnight, i.e., after the incident. 16. Section 498A of the Indian Penal Code reads as follows: ## **“498A.Husband or relative of husband of a woman** **subjecting her to cruelty-** Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. ## **Explanation.—For the purposes of this section, "cruelty” means—** CRL.A NO. 51 OF 2011 12 **(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or** (b) harassment of the woman where such 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 or is on account of failure by her or any person related to her to meet such demand.” (emphais supplied) 17. The above provision has two explanations. Undoubtedly, explanation (b) is not attracted in the case on hand because the prosecution does not have a case that the accused had made an unlawful demand for any property or valid security. Therefore, the prosecution case has to be confined to explanation (a). 18. Explanation (a) mandates that there should be a willful conduct, which is of such a nature, that would drive a woman to commit suicide or to cause grave injury or danger to her life, limb or health. 19. On a meticulous evaluation of the testimonies of CRL.A NO. 51 OF 2011 13 the main witnesses, none of them have testified that it was due to the willful conduct of the accused that the deceased committed suicide. 20. It is to be remembered that the incident took place on 18.03.2006. The deceased was rushed to the Medical College Hospital by midnight, and PW.10 recorded the accident register cum wound certificate (Ext.P4) stating that the deceased was brought to the hospital with alleged burns while trying to light a lamp at home on 18.03.2006 at around 9 p.m., and the deceased had 90% burns on her body. 21. Ext.P4 does not show who had given the information and who was the cause of the incident. It is also pertinent to note that Ext.P1 FIS was recorded only on 22.03.2006. There is no explanation for the delay. 22. PW4 has, in unequivocal terms, testified that the deceased was conscious and told her that she did CRL.A NO. 51 OF 2011 14 not want to state anything about the incident. There is no plausible explanation as to why the dying declaration was not recorded. All these factors lead me to the irresistible conclusion that it was only after the deceased lost her life that the witnesses changed their minds and decided to lodge the complaint alleging that the deceased lost her life by committing suicide due to the conduct of the deceased. 23. On an analysis of the evidence, it is evident that there is no clear-cut material to conclude the root cause of the incident, which is shrouded in mystery. The incident happened within the four corners of the house with no one eye-witnesses and is obviously not as alleged by the prosecution. 24. The prosecution has failed to prove the ingredients of explanation (a) of Section 498A of the IPC, which is imperative to sustain a conviction under the above provision i.e., the conduct of the accused should be CRL.A NO. 51 OF 2011 15 of such nature that would lead the deceased to commit suicide or cause grave injury to her. In the absence of any cogent material to prove that the accused had done an act falling within the realm of explanation (a) to Section 498A of the IPC, I am unable to accept the prosecution version and the findings rendered by the court below. 25. A reading of paragraph No.26 of the impugned judgment would reveal that the court below has misappreciated the oral testimonies of PWs. 1, 3 & 6 to hold that the accused used to manhandle the deceased after consuming alcohol, that the accused had an extramarital relationship with PW.8, that PW.1 had understood that his father had beaten up his mother black and blue on the date of incident and that in cases of such nature the near relatives would not come forward to depose in favour of the prosecution. 26. All that could be understood from the materials placed on record is that, on the ill-fated day, when the CRL.A NO. 51 OF 2011 16 accused returned home, he and the deceased had an argument regarding redeeming his ring for Rs.1,000/-. But this happened earlier in the evening, and there is nothing to show that the quarrel went up till the time of the alleged incident. Even PW.6 had testified that he heard an argument at around 6-7 p.m., but PW1 found his mother happy at 7 p.m. 27. In addition to the above findings, I am also of the view that the finding rendered by the court below that the accused is not guilty of an offence under Section 306 of the IPC has an important bearing in respect of the conviction under Section 498A of the IPC. Even though the law is well-settled in **Girdhar Shankar Tawade** (supra), that Sections 306 and 498A of the IPC are independent and separate, I find the fundamental ingredient is intrinsically intertwined in both the provisions, i.e., whether a person is led to commit the act of suicide due to abetment or wilful conduct of the accused. CRL.A NO. 51 OF 2011 17 28. Concluding that the accused had not abetted the deceased to commit suicide, it is difficult to conclude that there was willful conduct on the part of the accused which led the deceased to commit suicide. There is only a thin line separating the ingredients of the above two provisions, which will have to be carefully analysed based on the materials on record. But, once the court below has found that the accused had not committed the offence under Section 306 of the IPC, I am of the firm view that the accused ought to be given the benefit of doubt, especially when the prosecution has miserably failed to let in any substantive evidence to prove that there was willful conduct on the part of accused which led the deceased to commit suicide. 29. On an overall re-appreciation of the materials placed on record and after considering the law on the point and particularly the findings of the court below, I am convinced that the prosecution has failed to prove that the accused committed the offence, and the CRL.A NO. 51 OF 2011 18 deceased is entitled to the benefit of doubt. Consequentially, the appellant has to succeed in the appeal by an order of acquittal. In the result; - (i) The appeal is allowed. - (ii) The conviction and sentence passed by the court below in S.C.No.406/2008 is set aside. - (iii) The accused is found not guilty of the offence under Section 498A of the IPC charged against him and is acquitted of the said offence. - (iv) The bail bond executed by the accused and his sureties shall stand cancelled, and he is set at liberty. **Sd/C.S.DIAS JUDGE** rkc/08.11.23