Joseph @ Poppen v. State of Kerala and The Deputy Superintendent of Police, Kattappana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 4TH DAY OF NOVEMBER 2013/13TH KARTHIKA, 1935** ## **CRL.A.No. 440 of 2006** **-------------------------SC NO.401/2003 OF ADDITIONAL DISTRICT COURT (ADHOC 1), THODUPUZHA DATED 03-02-2006** **........** **CP NO.57/2002 OF JUDICIAL FIRST CLASS MAGISTRARE COURT, PEERUMEDU** **..** ## **APPELLANT(S)/ACCUSED:** **----------------------------------------** **JOSEPH @ POPPAN, S/O.ANTONY, ALANCHERIL HOUSE, 66TH MILE BHAGAM, SPRINGVALLEY KARA, PERIYAR VILLAGE, IDUKKI DISTRICT.** **BY ADVS.SRI.J.JOSE SRI.SHAJI THOMAS PORKKATTIL** ## **RESPONDENT(S):STATE & COMPLAINANT:** **----------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE DEPUTY SUPERINTENDENT OF POLICE, KATTAPPANA.** **R1 & R2 BY PUBLIC PROSECUTOR SMT. P.MAYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **P.BHAVADASAN, J.** **--------------------------------------Crl. Appeal No.440 OF 2006 --------------------------------------Dated this the 4[th] day of November, 2013.** ## **J U D G M E N T** The accused in this case was prosecuted for the offences punishable under Sections 498A and 306 of Indian Penal Code. He was lucky to be acquitted under Section 306 IPC but he was unfortunate for having found guilty of the offence under Section 498A IPC. He was therefore sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- with default clause of rigorous imprisonment for six months under Section 498A IPC. 2. The marriage between the victim and the accused was solemnised on 30.06.1998 and the couple had a child in that wedlock. The allegation is that soon after the marriage, the accused began to ill-treat the victim and unable to bear the same, on several occasions, she had come to her house and on **Crl. Appeal No.440/2006** **2** one occasion her father says that she had been beaten in his presence. The prosecution allegation is that on 11.01.2002, unable to bear the ill-treatment, she administered poison to her child and she also consumed the same. Both of them died. 3. PW4, father of the victim, laid Ext.P8 First Information Statement. PW12 recorded the same and Crime No.10/2002 was registered for the offences under Sections 302 IPC and 174 Cr.P.C. Investigation was taken over by PW14. The inquest of the body was conducted by PW13 who furnished Ext.P1 report. PW14, after the inquest was conducted, sent the bodies for postmortem. Autopsy was conducted by PW16 who furnished Ext.P18 report. During investigation, it was revealed that the lady by name Lovely was driven to commit suicide due to the cruel acts committed by the accused. PW14 arrested the accused and a report was filed seeking to incorporate Sections 306 and 498A IPC showing the accused on the party array. The investigating officer seized various articles from the scene as per relevant mahazars and after completing investigation, charge was **Crl. Appeal No.440/2006** **3** laid before court. 4. The court before which final report was laid took cognizance of the offence and on finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Thodupuzha. The said court made over the case to Additional Sessions Court (Adhoc-1), Thodupuzha for trial and disposal. The latter court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 306 and 498A IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 16 examined and Exts.P1 to P18 marked. M.O.1 series to M.O.5 series were got identified and marked. 5. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He pointed out that they were living in a high range area where agricultural operations **Crl. Appeal No.440/2006** **4** were difficult. Victim had been in the Vijayawada for some time and she went to Vijayawada after marriage also, against his wish. She used to pick up quarrels with him stating that her life is more comfortable at Vijayawada. She was reluctant to look after the child and ultimately, when she found that she will not get permission to go to Vijayawada, she committed suicide. 6. On finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. He examined DW1 and marked Ext.D1. 7. The court below, mainly based on the evidence of PWs 4, 5 and 7, who are the father, brother and sister of the victim respectively, and also on Exts.P9 and P10, two letters alleged to have been written by the victim, came to the conclusion that the alleged cruelty has been made out. But the court below was also the opinion that there is want of evidence to come to the conclusion that there was instigation on the side of the accused driving the victim to commit suicide and found that the offence under Section 306 IPC has not been proved. The conviction and **Crl. Appeal No.440/2006** **5** the sentence for the offence under Section 498A IPC followed. 8. Learned counsel appearing for the appellant assailed the finding of the court below that the accused is guilty of offence under Section 498A IPC on several grounds. It is pointed out that the evidence of PWs 4, 5, and 7 falls within the category of hearsay evidence and their evidence is of no worth. It is also pointed out that all these witnesses are prone to embellishments and developments and many of the statements made by them in the court are conspicuously absent in their Section 161 Cr.P.C statement to the Police. 9. As regards Exts.P9 and P10, it was contended by the learned counsel appearing for the appellant that they fall within the ambit of Section 32 of the Indian Evidence Act and since the cause of death was not in question, while dealing with Section 498A IPC, those letters cannot be relied on. According to the learned counsel, the conviction for the offence under Section 498A IPC cannot stand. 10. Learned Public Prosecutor, on the other hand, pointed **Crl. Appeal No.440/2006** **6** out that the evidence of PW4 is sufficient to show that the acts of cruelty have been committed by the accused. Learned Public Prosecutor, referring to Ext.P8 First Information Statement furnished wherein there is mention of cruelty meted out by the accused to the victim, pointed out that it was filed soon after the death of the victim and there was little time for embellishments and developments. PW4 speaks of having seen his daughter being assaulted. PW5 says that on one occasion, coming to know that the accused had beaten his sister in his brother's house, he along with father had gone there and brought her to their house. PW7, the sister of the victim, makes mention of having written Ext.P10 at the behest of his sister about the various acts committed by the accused and the torture suffered by her. She says about having handed over Ext.P10 to PW6. PW6 is a Priest of the Church who attempted to mediate the matter. He also speaks about the contents of Ext.P10. 11. Learned Public Prosecutor went on to point out that the evidence is to be considered in the light of facts and **Crl. Appeal No.440/2006** **7** circumstances of the case. It will not be prudent for this Court to expect independent evidence in all cases especially in domestic matters where the assault by the wife of the husband will not be in public. She can only complain to her parents or siblings. If one is to eschew the evidence of these witnesses, there is absolutely no chance for a conviction under Section 498A IPC. It is seldom that one gets direct evidence of assault from a witness. All witnesses can only say that they had either heard from the victim or from somebody else about the ill-treatment. The evidence of PWs 4, 5 and 7 cannot be ignored in this context. It is significant to notice, according to the learned Public Prosecutor, that no ill-motive or oblique motive is suggested to any of these witnesses to falsely implicate the accused. Their evidence cannot be ignored on the ground of hearsay. At any rate, the evidence of PW6, the Priest of the Church, who had intervened in the matter is sufficient to show that Lovely (victim) was ill-treated. Accordingly, it is contended that the finding of the court below that the accused has committed the offence under Section 498A **Crl. Appeal No.440/2006** **8** IPC is only to stand. 12. The evidence regarding the various cruel acts committed by the accused on the victim are given by PWs 4, 5 and 7. Among them, PW4 is the father, PW5 is the brother and PW7 is the sister of the victim. As rightly noticed by the learned Public Prosecutor, Ext.P8 was given soon after the death of the victim and the author of the same is her father namely, PW4 who makes mention that the husband used to ill-treat his daughter. It, therefore, could not be said that the evidence furnished by PW4 in this case is an afterthought. He, from the very inception itself, had the grievance that his daughter had committed suicide due to the ill-treatment of the accused. Of course, the evidence of PWs 4, 5, and 7, to a considerable extent, are based on what they were told by the victim. PW4, in his evidence, says that on one occasion, the victim was beaten in his presence. PW5 has stated that on coming to know about the ill-treatment by the accused from the house of his own brother, he and PW4 had gone there and brought the victim to their house. **Crl. Appeal No.440/2006** **9** 13. As rightly pointed out by the learned Public Prosecutor, if the evidence of PWs 4, 5 and 7 are to be discarded on the basis of hearsay, it will be difficult to find the accused guilty of the offence under Section 498A IPC. It is seldom that al husband will beat the wife in the presence of others. It is also significant to notice that PWs 4 and 5 do say that sometimes the victim had occasion to come home complaining about the beating immediately after the incident. 14. The question is whether the evidence of PWs 4, 5, and 7 can be believed. It is true that some of the statements made by them do not find a place in Section 161 Cr.P.C statement to the Police. But, as far as PW4 is concerned, he, at the very inception itself, had a case that the accused used to ill-treat his daughter. He says so in the box also. 15. At the risk of repetition, one may notice that there is no reason suggested to either PWs 4, 5, or 7 as to why they should falsely implicate the accused. The accused tried to adduce defence evidence pointing out that the father of the victim had **Crl. Appeal No.440/2006** **10** borrowed Rs.20,000/- from him and had not returned the amount and as a result of which he was falsely implicated. Surprisingly enough, there is no suggestion to PW4 that the case put forward is only an afterthought. 16. Coming to the contents of Exts.P9 and P10, reliance is placed on the decision in _**Mony** vs._ _**State of Kerala**_ (2010 (1) KLT 245) wherein this Court had occasion to consider such letters in the context of allegation of cruelty falling within the ambit of Section 498A IPC. This Court had occasion to consider the statements made in the letters regarding the cruelty relating to the cause of death and hold that they are of no use and they are of hearsay only falling within the explanation contained in Section 32 of the Evidence Act. 17. One fact has to be noticed that if a letter is written to a particular person, the person who wrote the letter and the person who has received the letter speak about the contents of the letter, that cannot be easily ignored. There is no challenge to the claim made by PWs 4, 5 and 7 that Ext.P9 letter is in the **Crl. Appeal No.440/2006** **11** handwriting of the victim. As far as Ext.P10 is concerned, it is stated by PW7 that she was asked to write the same by her sister and she wrote the same and it was signed by the victim. There is some doubt regarding Ext.P10. But, Ext.P9 shows that it was written by the victim and received by one of the witnesses. Therefore, it cannot be ignored as such. 18. The evidence of PW6 is also to be considered in this context. PW6 is the Priest of the Church to which the victim belongs. He also speaks about the ill-treatment made known to him and as told by Lovely and her family members. He further speaks about having sent the victim and the accused for counselling. It is interesting to note that the accused went and threatened him also. It is in this context his evidence will have to be appreciated. Even assuming that the contents of Ext.P10 cannot be taken as evidence, there is evidence of PWs 4, 5, 6 and 7 that the victim was ill-treated. ## 19. Then the question arises for consideration is whether the ill-treatment spoken to and disclosed by the evidence of PWs **Crl. Appeal No.440/2006** **12** 4, 5, 6 and 7 is sufficient to attract the offence under Section 498A IPC. Section 498A IPC does not deal with a stray incident of cruelty. But it consists of cruelty of such a nature as mentioned in Explanations (a) and (b) of the said Section. 20. In the case on hand, from the evidence of PWs 4, 5, 6 and 7, it is clearly seen that there is consistent and persistent illtreatment by the accused. The explanation offered by the accused at the time of questioning under Section 313 Cr.P.C is not established. There is no reason to reject the evidence of PWs 4, 5, 6 and 7, and the nature of the acts spoken to by them surely leads to the conclusion that offence under Section 498A IPC is attracted. The court below was perfectly justified in coming to the conclusion that the offence under Section 498A IPC is made out. 21. What now remains to be considered is the question of sentence. Learned counsel appearing for the appellant contended that the appellant is in such a stage that he cannot move about and that he is struggling in life. Though it may be a fact which **Crl. Appeal No.440/2006** **13** may not have much relevance in the context, it needs some consideration. Moreover, the incident has occurred in 2002 and almost 11 years have elapsed. It is not to say that the incident is to be taken lightly. After having given anxious consideration to all the aspects, it is felt that the sentence appears to be on the higher side. In the result, while confirming the conviction for the offence under Section 498A IPC, the sentence awarded is set aside and instead the appellant is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- with default clause of simple imprisonment for three months. Set off as per law will be allowed. Sd/- ## **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.