HARIS v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945 ``` ## **`CRL.A NO. 375 OF 2009`** ``` AGAINST THE JUDGMENT IN SC 1010/2006 OF ADDITIONAL DISTRICT & SESSIONS COURT ``` ``` FAST TRACK (ADHOC-II), KOZHIKODE ``` ## **`APPELLANT/1ST ACCUSED:`** ``` HARIS, KOTTAKANDY HOUSE, KADALUNDI AMSOM, PAZHANCHANNUR DESOM, KOZHIKODE. BY ADV SRI.T.G.RAJENDRAN ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** ``` 1SUB INSPECTOR OF POLICE, BEYPORE 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SR GP..PUSHPALATHA MK ``` ## **`THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** Crl. Appeal No.375 of 2009 2 ## JUDGMENT Dated this the 11[th] day of January, 2024 The appellant is the 1[st] accused in S.C. No.1010/2006 before the Additional Sessions Judge Fast Track (ADHOC-II), Kozhikode. There were three accused. Accused Nos.2 and 3 were acquitted and the appellant was convicted for an offence punishable under Section 306 of the Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/-. Aggrieved by the same, the appellant preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. Final report was filed in Crime No.76/2005 of Beypore Police Station alleging that accused Nos.1 to 3 being husband, mother-in-law and sister-in-law of the deceased Crl. Appeal No.375 of 2009 3 committed offences punishable under Sections 306, 406 and 498A read with Section 34 of the IPC. The court below framed a charge for the said offences. Since, the accused denied the charge, the court below held trial on the said charge. 4. PWs 1 to 9 were examined and Exts.P1 to P19 were marked. M.O.I and M.O.II were identified. 5. When the accused were questioned under Section 313(1)(b) of the Code, they claimed innocence. The appellant stated that on hearing some sound, he went to the room and saw that the deceased was standing with flame on her body. He put out the fire on her body using a bed sheet and took her along with the child to the hospital. He also stated that there was absolutely no grievance or complaint from the part of the deceased or members of her family about any torture or demand of dowry by the appellant. The case was foisted on the advice of some politicians. DWs 1 and 2 were examined on the defence side. 6. The trial court after considering the said evidence, took the view that Ext.P14, the dying declaration recorded by the Judicial Magistrate, was wholly false, whereas, the Crl. Appeal No.375 of 2009 4 evidence tendered by PWs 1 and 2, to the effect that there were unbearable torture of the victim and demand for more dowry, was reliable. It was held that the information revealed to PW1, while the deceased was on her deathbed regarding the torture perpetrated on her by the appellant and also his relatives could be believed and that part of the evidence which relates to the cause of her death was acted upon to enter a conviction for the offence under Section 306 of the IPC. It was further held that the evidence tendered by PW1 and PW2, who is the wife of PW1, was not sufficient to find accused Nos.2 and 3 guilty. Also, the said evidence found not helpful to find the appellant guilty of the offences under Sections 306, 406 and 498A of the IPC. The conviction of the appellant is assailed in this appeal. 7. PW1 gave evidence to the effect that the victim was used to be tortured by the appellant mainly for the reason that she is not having sufficient education and beauty. Similar is the evidence tendered by PW2 also. But, their evidence is based on the information revealed by the deceased before the incident and also after the incident of alleged self immolation by the Crl. Appeal No.375 of 2009 5 ## deceased. 8. The learned counsel for the appellant would submit that the said evidence is based on hearsay information and therefore, is inadmissible, whereas the dying declaration recorded by the learned Magistrate on the very same day, Ext.P14, contains the actual fact. The deceased stated to the Magistrate that the fire occurred by bursting of stove and that caused injuries to herself and the child. Besides, in Exts.P2 and P4, which are the wound certificates with respect to the child as well as the wife, the cause of injuries noted is fire occurred by bursting of stove. It is not stated before the Doctor to whom the cause of injury was first revealed that it was an attempt of suicide by setting ablaze after pouring kerosene. Pointing out those evidence and circumstances, it is contended by the learned counsel for the appellant that the court below went wrong in entering a finding that the accused has abetted the deceased to commit suicide. In order to fortify the said contentions, the learned counsel placed reliance on the decisions in Mahendra K.C v. State of Karnataka and Another [2022 (2) SCC 123] and Rajesh v. State of Haryana [AIR 2019 Crl. Appeal No.375 of 2009 6 ## SC 478]. 9. In Mahendra K.C (supra), the Apex Court after considering the earlier decisions on the point including Rajesh (supra) explained ingredients necessary to establish an offence punishable under Section 306, which are: (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation. 10. The Apex Court further held that it is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time Crl. Appeal No.375 of 2009 7 of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. 11. When the cause of injury stated to the Doctors’ PW4 and PW5, who examined the child as well as the mother, at the Medical College Hospital, was that they sustained burn injury by bursting of stove. If so, it was a case of accident. When the learned Magistrate recorded the dying declaration in the evening of 30.06.2005, what revealed to him also was that the burn injuries occurred as a result of bursting of the stove. The deceased further stated that she had no complaint against anyone. Before and after recording the dying declaration, the learned Magistrate obtained certificate from the Doctor in duty as to the condition of the deceased. It was certified that the deceased was conscious and able to make rational statement. When such a dying declaration is on record without any evidence to show that such a statement was given under instigation or influence of anyone, same cannot simply be brushed aside. It is true that at the time when PW1 reached the hospital knowing the incident, the appellant and his Crl. Appeal No.375 of 2009 8 relatives were in the hospital. That may indicate that they would have influenced the deceased to give a false statement to the Magistrate. But such an inference is not enough to discard the dying declaration which is not shown otherwise to be false. 12. The informations based on which PW1 gave Ext.P1 F.I.statement and also the evidence in court are from the deceased. Of course, the information was relating to the cause of her death and the same is admissible as a dying declaration under Section 32(1) of the Indian Evidence Act. But when the statement given by the deceased before the Doctor as noted in Exts.P2 and P4 and also the dying declaration recorded by the learned Magistrate which is Ext.P13 are totally against the evidence tendered by PW1 and PW2, their credibility is at stake. When the said evidence is considered in the light of the law laid down by the Apex Court in the aforesaid decisions, it is not able to say that on account of the incitement on the part of the appellant his wife committed suicide. Therefore, the evidence tendered by the prosecution is insufficient to prove beyond doubt that the appellant had instigated the deceased to Crl. Appeal No.375 of 2009 9 commit suicide. The conviction and sentence recorded by the trial court are incorrect and liable to be set aside. I do so. The appeal is accordingly allowed and the appellant is acquitted. Sd/P.G.AJITHKUMAR JUDGE SMF