Baiju Antony v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946** **CRL.A NO. 488 OF 2006** **AGAINST THE JUDGMENT DATED 28.02.2006 IN SC NO.266 OF 2005 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE,** **FAST TRACK COURT (ADHOC)-II, KOTTAYAM.** ## **APPELLANT/ACCUSED(CUSTODY):** **BAIJU ANTONY, S/O.ANTONY, KALLOLIL HOUSE, VEYILKANAPARA BHAGOM, THIDANADU, KONDOOR.** **BY ADVS. SRI.PAUL JACOB SRI.NAVEEN CHERIAN SRI.PRAKASH PUTHIADAM SRI.PAUL JACOB P SRI.ROSHEN.D.ALEXANDER ENOCH DAVID SIMON JOEL S.SREEDEV(K/1219/2006) RONY JOSE(K/705/2012) LEO LUKOSE(K/001131/2016) KAROL MATHEWS SEBASTIAN ALENCHERRY(K/126/2010) DERICK MATHAI SAJI(K/1901/2021) KARAN SCARIA ABRAHAM(K/003189/2023)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (THROUGH CIRCLE INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION).** **BY ADV.** **VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 18.07.2024, ALONG WITH CRL.A.490/2006, THE COURT ON 26.07.2024 DELIVERED THE FOLLOWING:** 2 Criminal Appeal Nos.488 and 490 of 2006 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946** **CRL.A NO. 490 OF 2006** **AGAINST THE JUDGMENT DATED 28.02.2006 IN SC NO.265 OF 2005 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT (ADHOC)-II, KOTTAYAM.** **APPELLANT/ACCUSED (CUSTODY):** **BAIJU ANTONY, S/O.ANTONY, KALLOLIL HOUSE, VEYILKANAPARA BHAGOM, THIDANADU, KONDOOR.** **BY ADVS. PARTY IN PERSON ENOCH DAVID SIMON JOEL S.SREEDEV(K/1219/2006) RONY JOSE(K/705/2012) LEO LUKOSE(K/001131/2016) KAROL MATHEWS SEBASTIAN ALENCHERRY(K/126/2010) DERICK MATHAI SAJI(K/1901/2021) KARAN SCARIA ABRAHAM(K/003189/2023)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (THROUGH CIRCLE INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION).** **BY ADV. VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 18.07.2024, ALONG WITH CRL.A.488/2006, THE COURT ON 26.07.2024 DELIVERED THE FOLLOWING:** 3 Criminal Appeal Nos.488 and 490 of 2006 ## **C.S.SUDHA, J.** **------------------------------------------------------Criminal Appeal Nos.488 and 490 of 2006 ------------------------------------------------------Dated this the 26th day of July 2024** ## **J U D G M E N T** The aforesaid appeals have been filed by the sole accused against the common judgment dated 28/02/2006 in S.C.No.265/2005 and 266/2005 on the file of the Court of Session, Kottayam by which he has been convicted and sentenced of the offences punishable under Sections 417, 420 and 306 IPC. 2. The deceased, Shyla, on 04/08/2004 preferred Ext.P2 private complaint before the Judicial First Class Magistrate Court, Erattupetta against the accused alleging the commission of the offences punishable under Sections 406, 420 and 376 IPC. According to her the accused, her neighbour and close friend of her brother, was a frequent visitor to her residence. For the past more 4 Criminal Appeal Nos.488 and 490 of 2006 than four years she has been in a relationship with the accused. On the promise of marriage, Shyla and the accused engaged in coitus. She agreed to the physical relationship with the accused as she _bona fide_ believed the words of the accused that he would marry her. While so, she went abroad for employment. The accused had then encouraged her to go abroad and had promised her that he would marry her when she returned after an year. When Shyla returned after one year, she insisted on the accused to marry her. As demanded by the accused she gave him a total amount of ₹18,000/in two installments for enabling him to carry out renovation works in his house before the marriage. She also gave him ₹8,000/- for meeting the marriage expenses. She parted with the money as the accused had promised to marry her. During this period also, the accused continued to have physical relationship with her. She was unaware of the consequences of such physical relation. She developed pain in her abdomen. On examination she realized that she was pregnant. She informed the matter to the accused and 5 Criminal Appeal Nos.488 and 490 of 2006 demanded marriage. The response of the accused was quite disappointing because the accused kept instigating her to undergo an abortion. She consented to coitus only because the accused had promised to marry her. She is now a mental and physical wreck. She cannot think of marrying any person other than the accused. She has no other go/option other than to commit suicide. The accused by his acts committed the offences punishable under Sections 376, 406 and 420 IPC. Though she preferred a complaint to the police, no action has been taken and hence, the complaint. 2.1. Ext.P2 was forwarded under Section 156(3) Cr.P.C. to the SHO, Erattupetta based on which Crime No.241/2004, that is, Ext.P11 FIR was registered by PW14, the then SHO alleging commission of offences under Sections 376, 406 and 420 IPC. Pursuant to the registration of the crime, the police visited the residence of Shyla on 07/08/2004 and 08/08/2004 for the purpose of investigation. On 08/08/2004 at about 03:00 p.m. Shyla doused herself in kerosene and set herself ablaze. She was first taken to the 6 Criminal Appeal Nos.488 and 490 of 2006 Taluk Head Quarters Hospital by her brother PW2, Nazeer and thereafter to the Medical College Hospital, Kottayam. On 11/08/2004, Shyla died due to the severity of the burns sustained. PW2 gave Ext.P1 FIS on the basis of which Crime No.250/2004, that is, Ext.P2(a) FIR was registered. Initially the Section incorporated in the FIR was Section 174 Cr.P.C. Later on during the course of investigation the Section was altered and Section 306 IPC was incorporated and investigation conducted by PW15. 2.2. PW15 conducted investigation in both the crimes and filed the charge sheet/final report. In Crime No.241/2004 the offences alleged to have been committed by the accused are the offences punishable under Sections 417 and 376 IPC and as per the charge sheet in Crime No.250/2004, the accused is alleged to have committed the offence punishable under Section 306 IPC. 3. Both the cases were committed by the jurisdictional Magistrate after complying with all the statutory formalities. Crime 7 Criminal Appeal Nos.488 and 490 of 2006 241/2004 was taken on file as S.C.No.265/2005 and Crime no.250/2004 was taken on file as S.C.No.266/2005. The Sessions Court on 29/12/2005 framed two separate charges against the accused. In S.C.No.265/2005 a charge under Sections 417 and 420 IPC was framed and in S.C.No.266/2005 a charge under Section 306 IPC was framed, read over and explained to the accused to which he pleaded not guilty. 4. The prosecution examined PWs.1 to 16 and got marked Exts.P1 to P17. Ext.D1 was marked on the side of the accused. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral evidence 8 Criminal Appeal Nos.488 and 490 of 2006 was adduced by the accused. 6. The trial court on a consideration of the oral and documentary evidence and after hearing both sides, found the accused guilty of the offences punishable under Sections 417, 420 and 306 IPC and hence proceeded to sentence the accused to rigorous imprisonment for 7 (seven) years for the offence punishable under Section 306 and rigorous imprisonment for 1 (one) year for the offence punishable under Section 417 and for 2 (two) years rigorous imprisonment for the offence punishable under Section 420 IPC. The sentences have been directed to run concurrently. He has also been granted set off under Section 428 Cr.P.C. Aggrieved, the accused has come up in appeal. 7. Heard both sides. 8. It was argued by the learned counsel for the accused/appellant that none of the ingredients of the offences under Sections 417, 420 or 306 IPC are made out. The trial court on an erroneous application of the facts and the law on the point 9 Criminal Appeal Nos.488 and 490 of 2006 convicted the accused and hence the judgment requires to be reversed. In support of the argument reference was made to the dictums in **Mridul Dey v. State of Tripura, 2020 KHC 4626** , **Kashibai v. State of Karnataka** , **2023 KHC 6194 : 2023 SCC OnLine SC 575** , and **Sunil Kumar v. State of Kerala, 2023 (6) KHC 106** . _Per contra_ it was submitted by the learner Senior Public Prosecutor relying on the dictum of the Apex Court in **Ude Singh v. State of Haryana, (2019) 17 SCC 301** that Shyla, the deceased, had no other option but to commit suicide because of the refusal of the accused to marry her after impregnating her. She suffered humiliation at the hands of her family and the public. Her future and reputation was completely ruined by the accused who denied paternity of the child and attributed it to the local public. This led her to commit suicide and therefore the offences are clearly made out. 9. **Mridul Dey** ( _Supra_ ) is a decision of the High Court of Tripura in which the ingredients of Section 417 IPC has been 10 Criminal Appeal Nos.488 and 490 of 2006 discussed by referring to several decisions of the Apex Court. In the said case the accused therein had developed intimacy with the prosecutrix, a widowed lady, by giving her a false promise of marriage. Believing such promise, the prosecutrix allowed the accused to develop physical relations with her pursuant to which she became pregnant and gave birth to a child, who died a month later. The accused when reminded of his promise of marriage, went back on his promise and pressurized her to undergo abortion. The trial court framed a charge for the offence under Sections 376, 417 and 506 IPC. The trial court did not acquit the accused for the offences punishable under Sections 376 and 506 IPC. However, finding that the accused had given a false promise of marriage, convicted him for the offence under Section 417 IPC. The questions that came up before the High Court was whether the accused therein had given the prosecutrix a promise of marriage ; whether such promise was false from the very outset and whether it was on account of the false marriage that the prosecutrix had 11 Criminal Appeal Nos.488 and 490 of 2006 allowed the accused to have coitus with her. The Court noticed that the prosecutrix in her testimony had stated that she knew the accused before the death of her husband; that after the death of her husband the accused started visiting her; that a relationship developed between them resulting in physical relations also; that she had also stated that the accused had promised to marry her. The High Court found the version of the prosecutrix to be unreliable and unrealistic and not conclusive of the promise being false from the very outset. It was found that when the prosecutrix used to remind the accused of his promise to marry, the accused used to urge her to persuade his parents for the marriage. The prosecutrix would then retort that having developed a relationship with her, it was the responsibility of the accused to convince his parents for the marriage. The prosecutrix did not allege that the accused had given a false promise of marriage which he had never intended to keep. It was also found that when she had visited the house of the accused with a demand for marriage, he reiterated his stand that if 12 Criminal Appeal Nos.488 and 490 of 2006 his parents agree, he would marry her. However, the parents of the accused disowned the entire affair. According to the prosecutrix, it was thereafter, the accused and his brother had threatened and pressurized her to undergo an abortion. Therefore, what could be made out from the testimony of the prosecutrix was that there was a relationship between her and the accused and that after having given a promise to marry her, the accused failed to keep his promise. Even going by the stand of the prosecutrix, the accused had not disowned the promise of marriage but appeared to have backed out of his promise due to the unwillingness of his parents to accept such a marriage. Therefore, the High court relying on the various decisions of the Apex Court found that none of the ingredients of the offence under Section 417 had been made out and hence the appeal was allowed and the accused was acquitted of . the offences alleged against him 9.1. Relying on the aforesaid decision, the argument advanced by the defence is that similar is the situation in the case 13 Criminal Appeal Nos.488 and 490 of 2006 ## on hand also and so the accused is entitled to be acquitted. ## 10. Section 415 IPC which defines cheating reads thus:- “ _Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in_ . _body, mind, reputation or property, is said to “cheat””_ The offence of cheating is punishable under Section 417 IPC. 10.1. Section 420 IPC deals with cheating and dishonestly - inducing delivery of property. It reads : “ _Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."_ 14 Criminal Appeal Nos.488 and 490 of 2006 10.2. Simple cheating is punishable under Section 417 IPC. But where there is delivery or destruction of any property or alteration or destruction of any valuable security resulting from the act of the person deceiving, Section 420 IPC comes into play. For an offence under this Section, it has to be proved that the aggrieved parted with her property acting on a representation which was false to the knowledge of the accused and that the accused had a dishonest intention from the outset. 11. The final report in C.C.265/2005 does not refer to the offence under Section 420 IPC. The allegation in para 16 of the final report which narrates the brief facts of the case reads – the accused with the intention of satisfying his lust subjected Shyla to coitus on several days starting from January 2004 on the promise of marriage which she believed. The accused had coitus with Shyla during nights at the veranda of her residence resulting in Shyla becoming pregnant. Hence the accused is stated to have cheated 15 Criminal Appeal Nos.488 and 490 of 2006 Shyla by promising her marriage and so liable for the offences punishable under Sections 417 and 376 IPC. 12. The trial court on the aforesaid allegations framed a charge under Section 417 IPC. A charge under Section 420 IPC was also framed presumably relying on the allegations in Ext.P2 complaint that Shyla had parted with a total amount of ₹26,000/on different occasions as demanded by the accused on the pretext of renovating his house before the marriage. PW14, who registered Ext.P11 FIR on the basis Ext.P2 complaint, admitted in the cross examination that he had not conducted any investigation into Ext.P2 complaint and as directed by the then C.I., he had handed over the file to the latter. PW15 , the then C.I., Erattupetta deposed that he had conducted investigation in crime no.241/2004. His initial investigation itself revealed that no offences punishable under Sections 406 and 420 IPC were made out and so the said sections were deleted. His investigation revealed commission of the offence under Section 417 IPC and hence he submitted Ext.P16 16 Criminal Appeal Nos.488 and 490 of 2006 report to the court. The investigation into crime no.250/2004 was conducted by the S.I. and thereafter he had submitted the final report/charge sheet in both the crimes. PW15 admitted that he did not conduct any investigation into the allegation in Ext.P2 that Shyla had parted with her money believing the false promise of the accused. The explanation he has given for the same is because Sections 406 and 420 IPC had been deleted. PW15 when asked the basis of incorporating Section 417 IPC answered that it was done based on the legal opinion received. He then added that the said Section was incorporated as the accused had subjected Shyla to coitus on the promise of marriage, which promise he did not keep. 13. In Ext.P2 complaint, the Manager, SBT, Erattupetta is seen arrayed as a witness. But PW15 never thought it fit or necessary to question the said witness or make any effort to conduct any investigation in the said direction for reasons best known to him. It is true that in Ext.P3 dying declaration also Shyla reiterates her case that money had been given to the accused. But 17 Criminal Appeal Nos.488 and 490 of 2006 her case in Ext.P3 is that she had handed over ₹26,000/- to the accused. It is true that a flaw in the investigation conducted cannot always go in favour of the accused, provided there is other reliable evidence available. Here apart from Ext.P2 and Ext.P3, there is no other evidence to substantiate the said case of Shyla. The statements in Ext.P2 complaint, the FIS in crime no.241/2004, can only be used to contradict or corroborate its maker and it cannot be used to corroborate the statement of any other prosecution witness. According to the trial court, Ext.P2 can also be treated as a dying declaration as the matters contained therein refer to the circumstances that led to the transaction which resulted in her death. Even if that be so, the statements in Exts.P2 and P3 do not tally. In Ext.P2, the allegation is that ₹26,000/- was given whereas in Ext.P3, the allegation is that it was ₹23,000/- that was given. In such circumstances and in the absence of other cogent evidence, it would not be safe to convict the accused based on the said evidence alone. 18 Criminal Appeal Nos.488 and 490 of 2006 14. Now coming to the offence under Section 417 IPC. It is by now settled that in order to establish an offence of rape under Section 376 IPC of coitus on the promise of false promise of marriage or for an offence under Section 417 IPC of cheating, the promise must be proved to be false from the very outset which the accused never intended to keep. In case the promise is found to be genuine but later not kept by the accused for any reason at all, the action of the accused would not amount to an offence of rape or even commission of an offence of cheating under Section 417 IPC. 15. The Apex Court in **(1970) 2 SCC 740, Ramjas v. State of U.P.** has referred to the ingredients required to constitute the offence of cheating under Section 417 IPC thus - (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or 19 Criminal Appeal Nos.488 and 490 of 2006 omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. For conviction of the accused for the offence under Section 417 IPC, it is necessary that all the necessary ingredients constituting an offence under the Section is proved beyond reasonable doubt. 16. PW1 to PW4 and PW13 are the mother and siblings of the deceased. All of them speak of the prosecution case. PW1, the mother, and PW2, the elder sister, of deceased Shyla deposed that the latter had told them of her relationship with the accused and that the accused had impregnated her. PW3, PW4 and PW13 are her brothers, who seem to have come to know about the affair/relationship after Shyla had given Ext.P2 complaint. It was pointed out by the learned counsel for the accused that though the prosecution claimed that the deceased was pregnant at the time of her death, Ext.P4 postmortem certificate does not say so and hence 20 Criminal Appeal Nos.488 and 490 of 2006 another flaw in the prosecution case. 17. PW6, Lecturer, Department of Forensic Medicine, Medical College Hospital, Kottayam, deposed that on 12/08/2004, she conducted the postmortem examination on the body of Shyla at 02:00 and issued Ext.P4 certificate. On p.m. postmortem examination, she found the following ante-mortem injuries: “ _1st and 2nd degree infected burns involving the whole areas of the body sparing hand and pubic region._ _1. Surgical cutdown wound 5.5cms horizontally placed infront of right elbow._ _2. Surgical cutdown wound 5cms horizontally placed infront of right ankle._ _3. Surgical cutdown wound 6cms horizontally placed infront of left ankle._ _xxxxxxxxxxxxxxx_ ## _OPINION AS TO THE CAUSE OF DEATH:_ _DEATH WAS DUE TO Ist AND IInd DEGREE INFECTED BURNS INVOLVING 90% OF THE BODY SURFACE._ PW6 also deposed that at the time of postmortem, the deceased was not pregnant. Therefore, pointing to this testimony of PW6 it was submitted that the prosecution case that the deceased was pregnant stands disproved. 21 Criminal Appeal Nos.488 and 490 of 2006 18. Here, I refer to the testimony of PW8, Assistant Surgeon, Taluk Headquarters Hospital, Pala, who deposed that on 07/08/2004 at 02:40 p.m. she had examined Shyla, brought to the hospital by a woman police constable. The alleged cause was that she had become pregnant pursuant to rape by Baiju Antony (the accused). Ext.P6 is the certificate issued by her. PW8 deposed that one and half months before the said examination, Shyla had approached her with complaint of pain in the abdomen. PW8 advised her to undergo ultrasonography, which confirmed that she was pregnant. The examination of Shyla by PW8 was apparently conducted pursuant to Ext.P2 complaint and registration of Ext.P11 FIR. The learned counsel for the accused pointing to Ext.P6 report dated 07/08/2004 which refers to the height and weight of the person whom PW8 had examined, submitted that it was not Shyla who had been examined by PW8 on the said date. In Ext.P6, the height and weight of the patient examined by PW8 is stated to be 144 cm and 46 kg respectively. However, in Ext.P4 postmortem 22 Criminal Appeal Nos.488 and 490 of 2006 report dated 12/08/2004, the height of the deceased is stated to be 156 cm and weight 49 kg. Therefore, it was argued that it could not have been Shyla who was examined by PW8. It could have been PW2 Shakeela, the elder sister of the deceased, who is stated to have accompanied Shyla to PW8 for the check-up. This argument is only liable to be rejected because in the cross-examination PW8 asserted that it was infact Shyla who had examined and that she personally knows the latter. Nothing was brought out to disbelieve or discredit the testimony of PW8. Therefore, the testimony of PW8 and Ext.P6 shows that Shyla was infact pregnant. 19. It is true that PW6 who conducted the postmortem has deposed that at the time of autopsy, the deceased was not pregnant. The answer to the confusion created by this answer which the prosecution never thought it fit to clarify by getting it cleared from PW6, is available in Ext.P17 case sheet which shows that Shyla had delivered a child prematurely and that the child had died at birth. It was submitted on behalf of the accused that Ext.P17 cannot 23 Criminal Appeal Nos.488 and 490 of 2006 be relied on as the doctor who prepared and signed the same could not be examined and therefore Ext.P17 cannot be relied on by the court. 20. Here I refer to the dictum in **Kochu v. State 1978 KHC 321 : ILR 1978 (2) Ker.593 : 1979 KLT 550.** In the said case it was contended that the burden cast on the prosecution cannot be said to have been discharged by the mere examination of a medical officer who is familiar with the handwriting and signature of the doctor who issued the post mortem certificate; but the prosecution must prove the contents of the document and also elicit from the witness examined, his independent opinion as an expert on the conclusions reached by the doctor who held autopsy. It was held that it is not always necessary, and the law also does not insist that in all such cases the witness should give his independent opinion on the findings in the post mortem certificate or speak to each and every statement made therein. Of course, if an expert witness, who has been examined to prove the post mortem certificate issued by a 24 Criminal Appeal Nos.488 and 490 of 2006 doctor who was dead or was not available for examination in court under the circumstances stated in S.32(1) of the Evidence Act, also gives independent evidence as an expert on the conclusions arrived at in the post mortem certificate, it would constitute an additional piece of evidence of an expert. S.32 of the Evidence Act speaks only of the relevancy of certain facts and admissibility of the same and does not speak or refer to the mode or manner of their proof. Relevancy and admissibility of a fact are entirely different from the proof of that particular fact. Under S.32, statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in cases falling under sub-s.1 to 8. A postmortem certificate is not substantive evidence. It is only the evidence given in court by the doctor who held autopsy that constitutes substantive evidence. A 25 Criminal Appeal Nos.488 and 490 of 2006 postmortem certificate, being a document containing the previous statement of a doctor who examined the dead body, can be used only to corroborate his statement under S.157 or to contradict his statement under S.145 or to refresh his memory under S.159 of the Evidence Act. But S.32(2) is an exception to this. If the doctor who held autopsy is dead or is not available for examination under the circumstances mentioned in S.32 of the Evidence Act, the certificate issued by him is relevant and admissible under S.32(2) of the Evidence Act. The weight to be attached to such a report or its probative value depends upon the facts and circumstances of each case. The court can come to its independent conclusion on the cause of death, if there is independent evidence on record in support of it. Then the question is whether the statements made in the post mortem certificate, containing what was observed by the doctor during autopsy and the conclusion arrived at by him therein have been properly proved in accordance with law. S.67 of the Evidence Act speaks of the mode of proof of a document. Under 26 Criminal Appeal Nos.488 and 490 of 2006 S.67 if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. In such cases, a statement coming under S.32(2) of the Evidence Act has to be proved by one of the various modes prescribed in S.47 of the same Act. ( see also **Acharaparambath Pradeepan v. State of Kerala - 2005 KHC 937: ILR 2005 (3) Ker. 361: 2005 (3) KLT 1075 and Kurian v. State 2019 KHC 741: 2019 (4) KLJ 903** ). 21. Ext.P17 is the case sheet of the deceased prepared by CW12, Dr.Aquib K.Shaik, Senior Lecturer in Surgery, Medical College, Kottayam. CW12 was reported to be abroad. PW16, Lecturer, Surgery Medical College, Kottayam deposed that he is familiar with the handwriting and signature of CW12. He identified the handwriting and signature of CW12 in the case sheet and hence the same was marked as Ext.P17. PW16 deposed thus - _“….Shyla was treated for accidental burns 90%. Patient was 6_ 27 Criminal Appeal Nos.488 and 490 of 2006 _months pregnant and gynecology consultation was done on 08/08/2004 at 09:00 p.m. IUD expulsion was done on 09/08/2004 at 07:40 p.m. IUD means intrauterine death. Birth death male. Patient expired on 12/08/2004 at 12:55 A.M.”_ In Ext. P17 at page 19 of the 'Nurses Record' the following entry is seen made on 09/08/2004 which reads thus - _“ 90% Burns. C/o labour pain. Seen by duty gynocologist. Pitocin 15 unit added in RL with uterine contraction delivered a macerated IUD male baby wt.600mg. No obvious external anomalies placenta with extreme membrane expelled at 07:50 p.m........”_ Therefore the testimony of PW8 coupled with Ext.P17, proved through PW17, establishes the prosecution case that deceased Shyla was infact pregnant. The deceased prematurely delivered a male child on 09/08/2004. The postmortem was conducted on 12/08/2004 at which time she could obviously not have been pregnant. 22. There cannot be any doubt about the prosecution case that the accused and the deceased were in a relationship. This 28 Criminal Appeal Nos.488 and 490 of 2006 aspect is not seen much disputed by the accused. The fact that Shyla became pregnant has also been established by the prosecution. Now the question is whether the accused committed the offence of cheating as contemplated under Section 415 IPC making him liable for punishment under Section 417 IPC. The prosecution _inter alia_ relies on Exts.P2 and P3 dying declaration to prove the offence. Ext.P3 was proved through PW5, the then JFCM, Erattupetta who recorded the same. PW7, Associate Professor, Medical College Hospital, Kottayam, deposed that on 09/08/2004, he was present when PW5 recorded Ext.P3 dying declaration. Ext.P5 is the certificate issued by him to the effect that Shyla was conscious and was in a position to the statement to PW5. The testimony of PW7 will make it clear that Shyla was in a fit state of mind when she gave Ext.P3 statement. Shyla in Ext.P3 explains the circumstances under which she set herself ablaze. According to her, on 08/08/2004 at 03:00 p.m., she doused herself in kerosene and set herself ablaze at her residence. She has been in 29 Criminal Appeal Nos.488 and 490 of 2006 a relationship with the accused for the past 4 years. He had promised and made her believe that he would marry her. She is five and half months pregnant. She informed the accused of her pregnancy at the initial stage itself. The accused then asked her not to inform her people and that a solution would be found out. The accused promising marriage had taken ₹23,000/- in three instalments. One week before Ext.P3 statement, the accused disowned her and denied the paternity of her child and alleged that the people of the locality were responsible for her pregnancy. The police registered a case against the accused on the basis of her complaint. Three days back the accused told Sabeer, her sister's son that she should make money to meet the expenses for carrying out a DNA test and that if in the test, the accused is proved to be the father of the child, he would accept/recognise the child or else he would commit suicide. Her family and people detest/hate her. She felt that it was better to die than live detested by everybody. Hence she doused herself in kerosene and set herself ablaze for which the 30 Criminal Appeal Nos.488 and 490 of 2006 accused is responsible as he had cheated her. 23. Now the question is did the accused give Shyla a promise of marriage which was false right from its inception and whether it was on account of the said false promise, Shyla had allowed the accused to have coitus with her. I have already referred to the ingredients of the offence under Section 417 IPC. It is clear from the evidence on record that the aforesaid ingredients are not made out from either Ext.P2 or Ext.P3. In Ext.P3 though Shyla says that the accused denied paternity and refused to marry her, she also stated that the accused had asked her to undergo a DNA test and that if the test proved that he was the father, he would accept the child or he would commit suicide. On a reading of the entire evidence on record it is doubtful whether there was any fraudulent or dishonest inducement of the deceased by the accused right from the being to constitute an offence under Section 415 IPC. 24. As noticed earlier no charge for the offence under Section 376 IPC was framed by the trial court though the final 31 Criminal Appeal Nos.488 and 490 of 2006 report says that investigation made out the offence under the said section also. No appeal has been filed by the State against this aspect. 25. Now coming to the offence under Section 306 IPC, which says that if any person commits suicide, whoever abets the commission of such suicide, would be liable to be punished with imprisonment of either description for a term which may extend to ten years, and fine. Abetment defined in Section 107 IPC reads:- _“107.Abetment of a thing- A person abets the doing of a thing, who- First-Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a_ 32 Criminal Appeal Nos.488 and 490 of 2006 _thing to be done, is said to instigate the doing of that thing.”_ 25.1. In order to convict a person for the offence under Section 306 IPC, the basic constituents of the offence, namely, whether the death was suicidal and whether there was any abetment on the part of the accused as contemplated in Section 107 will have to be established ( **Kashibai v. State of Karnataka, 2023 SCC Online SC 575** ). The Apex Court in **Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618** examined the different shades of the meaning 'instigation' and held that instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. A reasonable certainty to incite the consequence must be capable of being spelt out. It must to be shown that the accused by his act(s) or omission(s) or by a continued course of conduct 33 Criminal Appeal Nos.488 and 490 of 2006 created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may be inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. 25.2. In **M. Arjunan v. State Rep. by Its Inspector Of Police, (2019) 3 SCC 315** , the Apex Court held that the essential ingredients of the offence under Section 306 IPC are:- (i) abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of the instigation/abetment to commit suicide are satisfied, the accused cannot be convicted under Section 306 IPC. 25.3. In **Ude Singh** ( _Supra_ ), a two judge Bench of the Apex Court held that in the case of suicide, mere allegation of harassment of the deceased by another person would not suffice 34 Criminal Appeal Nos.488 and 490 of 2006 unless there be such action on the part of the accused which compels the person to commit suicide and such an offending action ought to be proximate to the time of occurrence. If the accused by his act(s) and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case would fall within the four corners of Section 306 IPC. There has to be direct or indirect acts of incitement to the commission of suicide by the accused. The person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain acts to facilitate the commission of suicide. Instigation has to be gathered from the circumstances of the case. It depends on the intention of the person who abets in order to bring forth the ingredients of the offence under Section 306 IPC. The prosecution has to establish the nexus between the alleged act of the accused and the commission of suicide by the victim. The act of the accused must have a positive effect to drive the victim to commit suicide. 35 Criminal Appeal Nos.488 and 490 of 2006 ## 25.4. In **Chitresh Kumar Chopra v. State (Govt. of NCT** **of Delhi), (2009) 16 SCC 605** the Apex Court had an occasion to deal with the aspect of abetment. The Court dealt with the dictionary meaning of the word “instigation” and “goading” and opined that there should be intention to provoke, incite or encourage the doing of an act by the accused. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is not possible to lay down any straitjacket formula in dealing with cases and each case has to be decided on the basis of its own facts and circumstances. Abetment involves a mental process of instigating a person or intentionally aiding a person in the doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the precedents make it clear that in order to convict a person under Section 306 IPC there has to be a clear _mens rea_ to commit the offence. It also requires an active act 36 Criminal Appeal Nos.488 and 490 of 2006 or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that she committed suicide. 25.5. Therefore, in order to bring the case within the purview of 'abetment' under Section 107 IPC, there has to be evidence with regard to the instigation or intentional aid on the part of the accused. There has also to be evidence regarding the positive act on the part of the accused to instigate or aid to drive a person to commit suicide. 25.6. The dictum in **Ude Singh** ( _Supra_ ) is relied on by the prosecution also. It was submitted that Exts P2 and P3 reveals the state of mind of the deceased before she set herself ablaze. She considered herself to be an object of hate/detest by her family and public. Her future and reputation were ruined beyond repair. She could not hope for or aspire for a better future. The accused was responsible for this state of mind of the deceased and hence clearly liable for the offence under Section 306 IPC. **Ude Singh** _(Supra)_ 37 Criminal Appeal Nos.488 and 490 of 2006 was not one instance that led to the girl committing suicide. A young girl from a village was constantly and repeatedly harassed, ridiculed and abused by few men of her village. Fed up with the same, she committed suicide. The facts in **Ude Singh** ( _Supra)_ are not similar to the facts of the case on hand. There is no evidence to show that the accused instigated or goaded Shyla, the deceased, to commit suicide. Ext.P3 dying declaration also does not make out the same. Here, the state of mind of Shyla immediately before she set herself ablaze is important. 26. The learned counsel for the accused drew my attention to the testimony of PW1, the mother, who in her cross-examination deposed that in the afternoon of 08/08/2004 she along with PW2; her neighbours and other relatives were sitting and chatting. Shyla was also one among them. After sometime, Shyla got up and went inside the house. According to PW1, Shyla had not retreated into the house crying, but she had happily gone inside (ഷക�ല, ഷവ�, ഷവ�, 2 ഷവ� ഉണ�, സല�� , ഞ�ന�� ആക� 5 പ�ര�ണ� ഇര�ന�ര�നത� . 38 Criminal Appeal Nos.488 and 490 of 2006 ഞങക��കക ഇര�ക�പ��ഴ�ണ� സ�ഭവ� ഉണ�യകതന� . . പ��ല�സ�ൽ �റഞ�ര�ന� ഷഷല �രഞ�ടല ഓട� പ��യത� ... ച�മ� സപ+�ഷത�ല�ണ� പ��യത� ........See page 7 of her deposition) Evidence has also come on record that on 07/08/2004 and 08/08/2004, the police had visited the residence of PW1 for the purpose of investigation pursuant to Ext.P2 complaint given by Shyla. It was after the police left on 08/08/2004, Shyla had doused herself in kerosene and set herself ablaze. Did something happen then which prompted Shyla to set herself ablaze? As held in **Chitresh Kumar Chopra** _(Supra)_ suicidal behaviour in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. 27. My attention was also drawn to the history narrated in Ext.P8 wound certificate prepared by PW10, the doctor who had first examined Shyla. PW10 deposed that while she was working as 39 Criminal Appeal Nos.488 and 490 of 2006 Assistant Surgeon, Taluk Head Quarters Hospital, Pala, on 08/08/2004 at 03:40 p.m., she had examined Shyla brought to the hospital by her brother Nazeer (PW2) with external burns. The history/cause of the burns is seen recorded as- “happened when the kerosene can touched while trying to light the gas-stove (gas stove �ത�ക�ൻ പ��യപ.�ൾ kerosene Can ൽ തട� ഉണ�യത�ൽ വച� )”. A question was put to PW10 in the chief examination by the Public Prosecutor which reads thus- _“...... It is not noted that the history was told by patient? Yes. Usually statement is the patient's statement. Otherwise, will state so.”_ This testimony of PW10 will show that the history was narrated by Shyla herself. Therefore, pointing to this, it was submitted on behalf of the accused that this history stated by the deceased herself coupled with the testimony of PW1 regarding the state of mind of Shyla immediately before the incident, raises doubts about the prosecution story of suicide. According to the defence counsel, it could have also been a case of accidental fire as stated in Ext.P8. 40 Criminal Appeal Nos.488 and 490 of 2006 27.1. In reply it was submitted that the answer to this is there in the testimony of PW2, Nazeer who gave Ext.P1 FIS. According to PW2 when the doctor asked him the cause of the incident he stated that it was accidentally caused and he said so because of shame (“…......ഷഷലപയ�ട� പ1�ക3ർ സ�സ�ര�പച�? . എപ+� സ�സ�ര�ക�നത� പ�ട� അപ.�ൾ എപന�ട� പച�ദ�ചപ.�ൾ ഞ�ൻ ന�ണപകട� ക��ണ� ഗ9�സ�ൽ �യറ� ��ട�ചത�കണന� . �റഞ� ...." See page 6 of his deposition) This explanation of PW2 is not very satisfactory because by the time the incident occurred, crime 241/2004 had already been registered alleging commission of the offences punishable under Sections 376, 417 and 420 IPC. Investigation had commenced and the police had also visited the residence of the deceased in connection with the investigation and as part of investigation, Shyla had been taken by the police to PW8, the doctor for medical examination, in which examination, she was found to be pregnant. Therefore, the private affair between Shyla and the accused had gone public and there appears to be nothing 41 Criminal Appeal Nos.488 and 490 of 2006 further left to hide from public gaze. However, ignoring all these aspects based on Ext.P3 declaration alone it can be seen that Shyla did commit suicide. But that would not automatically make the accused liable. 28. There is yet another aspect which raises doubts regarding the prosecution case. All the witnesses apart from the official witnesses are the mother and siblings of the deceased. No independent witnesses have been examined. The testimony of PW1 and others make it clear that quite a number of people had gathered at the scene of occurrence pursuant to the incident. Infact, PW2 specifically refers to the presence of a person by name 'Noor' at the scene of occurrence. PW2 deposed that it was he along with the said Noor who had lifted Shyla from the stream (പത�ട�) to which Shyla had ran and fallen into after she had set herself ablaze. Noor has neither been made a witness nor examined before the court. The investigating officer when asked has no explanation for not taking the statement of Noor or the statement of other persons 42 Criminal Appeal Nos.488 and 490 of 2006 who had gathered there. Further, it has also come out in evidence that Shyla along with her mother and sisters were living in a colony packed with houses. But none of the immediate neighbours have been made witness or examined before the court. Going by the version in Ext.P3 dying declaration, for about four years the relationship was going on. As per the charge sheet/final report the nocturnal rendezvous of the accused and Shyla used to take place in the veranda of the residence of Shyla where she was admittedly residing with her mother and siblings. Going by the prosecution case, it was not once but repeatedly and continuously the parties are stated to have engaged in coitus. This in all probability must have been with the knowledge and consent of her people especially taking into account the fact that the rendezvous used to take place in the veranda of the house, which from Ext.P9 site plan appears to be an open one. In all probability, the immediate neighbours must have also have come to know about the relationship. 43 Criminal Appeal Nos.488 and 490 of 2006 29. Further, in the cross-examination a few questions are also seen put to PW1 and PW2 that they were leading a life of loose morals, that Shyla used to roam around and go on leisure trips with the auto rickshaw drivers of the locality, indicating thereby that there was possibility of her getting impregnated by somebody else. PW1 when asked about this aspect did not deny the same. A suggestion is seen put to PW1 in the cross-examination that while Shyla was alone at home she used to be taken by the auto rickshaw drivers of the locality for watching movies and that she had made pleasure trips with the auto rickshaw drivers to several places. PW1 replied that when she and her husband were at home, none had visited their house and that she does not know anything about the same. It is quite surprising to note that PW1 did not deny the suggestion in emphatic terms. It was submitted by the learned Public Prosecutor that even a person of loose morals can have her own stand, and nobody can be permitted to take liberties without the consent of the lady in question. There cannot be any quarrel on 44 Criminal Appeal Nos.488 and 490 of 2006 this point. This Court is not considering the commission of the offence under Section 375 IPC punishable under Section 376 IPC. Section 54A of the Evidence Act also cannot come in to play as the said Section comes into play only when prosecution is relating to offences specified therein. It was also suggested to PW1 that she and her daughters are leading a life of loose morals and hence the reason why her husband was residing separately with one of her sons and that all her sons are keeping away because of this conduct of PW1 and her daughters. PW1 burst into tears and denied the said suggestion. On going through the impugned judgment, the learned Judge was of the view that these questions were unreasonable and put without sufficient grounds in spite of Section 149 of the Evidence Act forbidding such questions. If that was the opinion of the learned Judge, he should not have permitted the questions to be put to PW1 in the first place. Without doing so and after materials are brought in, it may not be right in canvasing that the same should not be referred to. 45 Criminal Appeal Nos.488 and 490 of 2006 30. The learned counsel for the accused though did not press his arguments based on the aforesaid materials, but certainly drew my attention to the testimony of PW3 the elder sister of the deceased. In her testimony, it has come out that PW3 had given a complaint against her male friend and neighbour whom she accused of impregnating her on the false promise of marriage. There was a case relating to the same, which was found against her. In the background of the aforesaid circumstances, it was pointed out that these were the reasons which prompted the prosecution not to examine even the immediate neighbours as the truth would have then come out. 31. Another aberration in the family of PW1 pointed out was the conduct of PW2 Nazeer, the brother of the deceased. He had eloped with the first wife of his brother, namely, PW13, lived with her for sometime in hiding and thereafter married her. It would certainly have been ideal had independent witnesses been examined in the case. But in the case on hand, even if independent 46 Criminal Appeal Nos.488 and 490 of 2006 witnesses had been examined that would not have helped the prosecution much in the light of the statements made by the deceased herself in Ext.P3 declaration. The statements in Ext.P3 declaration also do not make out the ingredients of the offences under Section 417 or 306 IPC in the light of the precedents of the Apex Court herein above referred to. The materials on record does not show that the accused by his continuous course of conduct had created a situation which led the deceased to harbour a feeling that she had no other option but to commit suicide. On the other hand, the deceased resorted to the remedy available to her by filing Ext.P2 complaint before the police, based on which action was also taken by the police and crime registered. The testimony of PW1 regarding the mental state of the deceased does not show that she was in a depressed state of mind or that she considered her world to have come to an end so as to resort to the extreme step of killing herself. There is no material to show that the accused incited or goaded her to commit suicide. 47 Criminal Appeal Nos.488 and 490 of 2006 32. Hence, I find that the accused is entitled to benefit of doubt. In the result, the appeals are allowed. The conviction and sentence passed in S.C.No.265/2005 and S.C.No.266/2005 under Sections 306, 417 and 420 IPC are set aside. The accused is acquitted under Section 235(1) Cr.P.C. He is set at liberty and his bail bond shall stand cancelled. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** ak