Bineesh and Santha v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **Crl.MC.No. 5889 of 2013** **AGAINST THE ORDER/JUDGMENT IN CRRP 28/2012 of III ADDL.DISTRICT COURT, PALAKKAD DATED 08-11-2013** ## **PETITIONER(S)/ACCUSED NOS.1 AND 2:** ## **1 BINEESH** - **S/O.BHASKARAN, PUTHANVEEDU, CHITTILANCHERRY P.O., ALATHUR, PALAKKAD DISTRICT.** ## **2 SANTHA,** - **W/O.BAHASKARAN, PUTHANVEEDU, CHITTILANCHERRY P.O., ALATHUR, PALAKKAD DISTRICT.** ## **BY ADV.ALAN PAPPALI** ## **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA (CRIME NO.200/2008 OF ALATHUR POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** ## **ADDL R2 IMPLEADED** **VENUGOPAL S/O.ACHUTHAN EZHUTHACHAN AGED 62 YEARS, RESIDING AT 605A2 MALAPRABHA NATIONAL GAMES VILLAGE KORAMANGALAM BANGALORE-560047** **(ADDL R2 IS IMPLEADE AS ADDL. R2 AS PER ORDER DTD 29.01.2014 IN CRL.M.CA.1223/14 IN CRL.M.C.5889/13)** **RADDL.2 BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM R BY PUBLIC PROSECUTOR:SRI RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 5-07-2018, THE COURT ON 12.07.2018 PASSED THE FOLLOWING:** **Crl.MC.No. 5889 of 2013 ()** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **ANNEXURE I. TRUE COPY OF THE F.I.R. IN CRIME NO.200/2008 OF ALATHUR POLICE STATION DATED 12.04.2008.** **ANNEXURE II. TRUE COPY OF THE ORDER IN B.A.NO.3433/2009 OF THIS HON'BLE COURT DATED 30.06.2009.** **ANNEXURE III. TRUE COPY OF THE PETITION FILED BY THE ASSISTANT PUBLIC PROSECUTOR AS C.M.P.NO.2662/2011 IN C.C.NO.391/2009 IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, ALATHUR DATED 02.06.2011.** **ANNEXURE IV. TRUE COPY OF THE COUNTER STATEMENT FILED BY THE COUNSEL FOR THE PETITIONERS DATED 12.08.2011.** **ANNEXURE V. TRUE COPY OF THE ORDER IN CRL.M.P.NO.2662/2011 IN C.C.NO.391/2009 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, ALATHUR DATED 03.03.2012.** **ANNEXURE VI. TRUE CERTIFIED COPY OF THE ORDER IN CRL.R.P.NO.28/2012 OF THE COURT OF SESSION, PALAKKAD DIVISION DATED 08.11.2013.** **ANNEXURE VII. TRUE COPY OF THE INQUEST REPORT CONDUCTED BY THE TAHSILDAR, ALATHUR, DATED 13.04.2008.** **ANNEXURE VIII. TRUE COPY OF THE POSTMORTEM CERTIFICATE IN RESPECT OF DECEASED VIDYA DATED 13.04.2008.** ## **ANNEXURE IX. TRUE COPY OF THE STATEMENT OF C.W.1 DATED 28.05.2009.** **ANNEXURE X. TRUE COPY OF THE STATEMENT OF C.W.4 DATED 28.05.2009.** **ANNEXURE XI. TRUE COPY OF THE FINAL REPORT IN CRIME NO.200/2008 OF ALATHUR POLICE STATION, DATED 31.05.2009.** **ANNEXURE XII. TRUE COPY OF THE WITNESS LIST IN CRIME NO.200/2008 OF ALATHUR POLICE STATION.** ## **RESPONDENTS EXHIBITS:NIL** **True Copy / P A to Judge** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.5889 of 2013** - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of July, 2018 ## **O R D E R** The petitioners herein, who stand arrayed as accused in CC No. 391/2009 of the court of the Judicial First Class Magistrate, Ernakulam, aggrieved by the order in Crl.M.P.No.2662/2011 allowing altering of charge of section 498A to section 304B IPC, has preferred this Crl.M.C. 2. The first petitioner is the son of the second petitioner. The first petitioner had married Vidhya, the daughter of additional second respondent, on 9/5/2007. The couple lived together with the second petitioner, the mother of the first petitioner, in the matrimonial house, on 8/3/2008 at 8 a.m. She suffered burn injuries at the matrimonial house. She was pregnant at the time of the incident. Family members rushed her to the hospital wherein she was given treatment. She died on 12/4/2008 at 4.30.p.m.while undergoing treatment in the hospital. FIS statement was laid on 30/4/2008 by a neighbour who had taken the injured to the hospital on the relevant day. Crime No.200/2008 was registered by the Alathur police under section 174 Cr.P.C. In 2009, the additional 2[nd] respondent laid a complaint alleging that Vidhya had died due to extreme Crl.M.C. No. 5889/2013 2 harassment and cruelty meted out by the petitioners on her in connection with demand for dowry. He alleged that, victim during her life time had revealed the details to him and consequently he sought for registration of Crime, after detailed investigation. Investigation was conducted and final report was laid on 31/5/2009 for offences punishable under sections 498A, 402, 202 read with section 34 IPC. 3. In the final report, it was alleged that, the second petitioner,with the aid of the first petitioner had harassed the victim by accusing that the first petitioner herein would have received more dowry, demanded new car suppressed the fact that the first petitioner had only passed 10[th] Standard and he married a highly educated girl. It was further alleged that, she was compelled to perform the various works in the kitchen, fully knowing that Vidhya had grown up in Bangalore and that she was accustomed to city life. She was compelled to cook food with firewood and while so, sustained burn injuries. The crucial evidences arrayed by the prosecution were CW1 to CW4 . CW1 is the first informant. CW2 is the second respondent and CW3 is his wife and CW4 is the servant of the accused. 4.Charge was read over to the petitioners herein, who denied the allegations and summons were issued to the main witnesses. On 22/6/2011, the APP filed CMP No. 2662/2011 Crl.M.C. No. 5889/2013 3 under section 216 Cr.P.C.to add section 304(B) and 302 IPC. It was stated that, the death of the victim had occurred due to burn injuries within seven years of marriage. It was alleged that, she was subjected to cruelty and harassment even on the morning of the date of the incident, demanding dowry and consequently, they have committed offences under section 304(B) IPC. The learned Prosecutor relied on the decision of the Supreme Court in **Rajbir v. State of Haryana(2010 (4) KLT 751)** and sought for adding section 302 IPC also. 5. Prayer made in the petition was opposed by the petitioners herein by filing objection. By order dated 3/3/2012, the court below, relying on the versions of CW2 and CW3, allowed the application holding that, the deceased was subjected to cruelty soon before her death. The court concluded that, there were sufficient materials to frame charges under section 304(B) IPC. In the light of decision in Rajbir's case, the court held that ingredients of section 302 IPC were made out. However, since the matter was to be tried by the Sessions Court, it was left to be decided by the concerned Sessions Court whether section 302 IPC was also liable to be added. 6. The above order was challenged by the petitioners before the Sessions Court in Cr.R.P.No.28/2012. The revisional court concurred with the findings of the trial court and dismissed the Crl.M.C. No. 5889/2013 4 revision. This is under challenge in this proceedings. 7. Heard both sides and examined the records. 8. The crucial materials relied on by the prosecution to bring home the allegation against the petitioners herein, are the oral testimonies of CW 1 to CW 4. The court below, to arrive at the conclusion that section 304B was made out mainly relied on the oral statements of CW2 and CW3, who are the parents of the deceased. Regarding the jurisdiction of the court to invoke the provisions under section 216 Cr.P.C., the Law is well settled that the court can alter or add charge any any time. It was held in **Anant Prakash Sinha Allas Annant Sinha v. State of Haryana and Another (2016) 6 SCC 105)** that, in doing so, the question to be considered was whether the charge so framed was in accordance with the materials produced before the magistrate or subsequent evidence that comes on record. 9.Relying on the above settled principles, it is to be analysed whether the materials justify the framing of charge under section 304B IPC and consequently, under section 302 IPC. Annexure VIII Post mortem report shows that, Vidhya died due to infected burns. CW2 and CW3 in their evidence have alleged that the petitioners herein had subjected the victim to matrimonial cruelty. It was alleged that they had demanded a new car. It was stated that these facts were revealed to them by Crl.M.C. No. 5889/2013 5 the victim herself, while she was in the hospital. It was also alleged that the incident did not happen in Pooja room. The second respondent had given a statement to the police stating that even on the date of the incident at about 7.55 a.m.the victim had called them and requested to arrange for a car. They also stated that, she was administered milk on the date of the incident and she became unconscious. Hence, they alleged that she was administered some poisonous substance. 10. The above versions of the CW2 and CW3 were heavily relied on by the courts below to conclude that ground for framing charge under section 304B IPC were prima facie made out. It is pertinent to note that the second respondent had given a statement at the time of inquest. He seems to have stated that that Vidya had cordial marriage relation and that the victim's inlaws were good natured. He also asserted that the incident happened while she was in the pooja room. The second respondent had also asserted that he had met the doctor in the hospital and confirmed about the entire incident. However,the second respondent laid a complaint dated 12/5/2008 much after the death of the victim, raising for the first time, the various allegations now raised. Definitely, the statement in the inquest report do not have much probative value, but it cannot be completely discarded at this stage. He had stated in his Crl.M.C. No. 5889/2013 6 complaint that the victim used to make calls to him and wife every day, and kept them informed about the alleged harassment at the house. They used to console her. He even mentioned in the complaint that the victim had called them at 7.55 a.m.on the date of the incident. CW2 had also stated that she was conscious after the incident for few days and had disclosed about the incident. Reference to the complaint and the oral statements of CW2 and CW3 show that there is gradual improvement from the complaint. In the written complaint, regarding the phone call made on the date of the incident, CW2 had mentioned that Vidhya called him, but did not mention anything unusual. In the complaint,he has not referred to any demand for car at that time. However, such a crucial version was added at the time of giving the statement, by stating that on that day, when the call was made, she had requested them to arrange for a car and indicated that there was something bad. This was conspicuously absent in the complaint. Some facts which are not mentioned in the complaint are seen embellished in the statement. This is further seen improved by CW3. In the statement of CW3, she had gone to the extent of alleging that the petitioners committed murder of the daughter. 11. In the background of the above version, the version of CW1 and CW3, who are also unrelated to the petitioners, are Crl.M.C. No. 5889/2013 7 also to be analysed. CW1 is a neighbour who had stated that immediately on getting th information, he took the victim to the hospital. In FIS , he has reported that she was conscious and informed that the incident occurred inside the pooja room. In his statement also he has almost reiterated accordingly. CW2 was the servant who had worked in the house of the petitioners. She had stated that on the date of the incident she saw the victim near the fire place . After some time, she heard huge cries and found the victim injured. Thereafter, she was taken to the hospital. In her statement she has asserted that the incident happened not in the pooja room but in the kitchen. She has given an explanation as to why all the persons decided to say that the incident happened in the pooja room. The explanation was that, they did not want to disclose that family members were using firewood for cooking. Whether this explanation is acceptable or not is a matter of evidence to be considered by the trial court. Suffice to say that in the version of CWs 1 and 2, there is no indication that it was a case of homicide. How the incident occurred, whether accidental one, or an attempt to commit suicide, is a matter of evidence. 12. The next question that arises is whether prima fcie material indicated that the petitioner herein had subjected the victim to matrimonial cruelty soon before her death. In the Crl.M.C. No. 5889/2013 8 version of CW2, she has referred to certain family bickering. She had indicated that mother in law used to murmur that the victim was not aware of cooking and was not fully co-operative. She had also suggested that son would have got better alliance. Possibly this indicates the inside family bickerings. But question whether it amounts to cruelty, as contemplated under the matrimonial cruelty to invite section 304 IPC, requires a closer look while appreciating the evidence tendered in court. It is also pertinent to note that the victim had sustained injuries mainly on her body below beneath waist. She was in the hospital for 35 days. She had undergone skin-grafts and skin from the body of the husband was taken for grafting. Version of the witnesses also indicates that attempts were made by the family members to extinguish the fire. The above facts coupled with improved version of CW2 and CW3, especially in the background of version of CW1 and CW 4, clearly show that version of CW2 and CW3 alone cannot be completely relied on to frame charge under section 304(B) IPC. 13. The Hon'ble Supreme Court in **Baunath and others v. State of Madhya Pradesh (2017) 1 SCC (Cri.)101)** had held that to attract section 304B , there must be evidence beyond doubt that the deceased was subjected to cruelty/harassment in connection with dowry soon before the death. In **Jasvinder** Crl.M.C. No. 5889/2013 9 ## **Saini and Others v. State(Government of Nct of Delhi)** **(2013 (7) SCC 256)** it was clarified by the Supreme Court that the decision in Rajbir's case was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. It was clarified that the apex court in Rajbar's case meant to say that in a case where a charge alleging dowry death is framed, a charge under section 302 IPC can also be framed, if the evidence otherwise permits. No other meaning can be deduced from the decision of the Supreme Court in Rajbir Songh's case, it was clarified. 14. Hence, the evidence of CW2 and CW3 for the purpose of framing charge cannot be exclusively relied on in the light of the version of CW1 and CW4 and the other materials available on record. Hence, I cannot agree with the findings of the courts below that charge under section 304(B) IPC is attracted in the case at hand. Consequently, charge under section 302 IPC cannot also lie. Accordingly, order adding charge under section 304(B) IPC is liable to be set aside. In the result, Crl.M.C.is allowed. The order of the court below in Crl.M.P. No.2662/2011 framing charge under section 304B IPC stands set aside. Consequently, the charges already framed under section 498A, 402, 202 IPC read with section 34 IPC will stand restored. The court below shall proceed in Crl.M.C. No. 5889/2013 10 accordance with law, untrammeled by any of the observations made above, which was exclusively for the purpose of deciding whether on the basis of materials available at present, charges under sections 304B and 302 IPC can be framed. ## Sd/- ## **SUNIL THOMAS Judge** ## dpk /true copy/ PS to Judge. The section “402” occurring in the last sentence of the 2[nd] paragraph and in the last paragraph at page 9 of the final order dated 12/7/2018 in Crl.M.C.No.5889/2013 is corrected and substituted as “420” as per order dated 18/12/2018 in Crl.M.A.No.1/2018 in Crl.M.C.No.5889/2013. Sd/Registrar(Judicial)