K. C. Manikandan and Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** **Crl.Rev.Pet.No.1697 OF 2011** **AGAINST THE JUDGMENT IN CRL.A.7/2010 OF SESSIONS COURT, KASARAGOD** **AGAINST THE JUDGMENT IN CC 32/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KASARAGOD** ## **- REVISION PETITIONER/APPELLANTS/ACCUSED 1 3:** **1 K.C.MANIKANDAN, S/O.LATE KUNHAMBU, R/AT MADIKAIKANDOM,BEEMBUNKAL, BEDAKAM GRAMAM, P.O.BEDAKAM, KASARAGOD TALUK, KASARAGOD DISTRICT. 2 KARTHIYAYINI, W/O.LATE KUNHAMBU, R/AT MADIKAIKANDOM,BEEMBUNKAL, BEDAKAM GRAMAM,P.O.BEDAKAM, KASARAGOD TALUK,KASARAGOD DISTRICT. 3 LOHITHAKSHAN.K.C., S/O.LATE KUNHAMBU, R/AT MADIKAIKANDOM,BEEMBUNKAL, BEDAKAM GRAMAM, P.O.BEDAKAM, KASARAGOD TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.JOHNY THOMAS RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-03-2020, THE COURT ON 10-03-2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** The revision petitioners are the accused 1 to 3 in C.C.No.32/2006 before the Judicial First Class Magistrate Court-I, Kasaragod arising from Crime No.73/2005 of the Bedakam Police Station for the offence punishable under Section 498A of the Indian Penal Code and the appellants in Crl.A.No.7/2010 before the Sessions Court, Kasaragod. 2. By judgment dated 09.12.2009, the learned Judicial First Class Magistrate-I, Kasaragod convicted and sentenced the accused 1 to 3 to undergo simple imprisonment for one year each for the offence punishable under Section 498A of IPC. The accused 1 to 3 preferred Crl.Appeal No.7/2010 before the Sessions Court challenging the judgment of the trial ## **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [22 x 8] intentionally omitted <==** court. By judgment dated 08.06.2011, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. 3. The prosecution case in brief is herein below:- Preethi, daughter of PW3, was married to the 1[st] accused on 27.2.2005 at Rajadhani Auditorium at Poyinachi in Thekkil in accordance with the custom prevailing in their community. After the marriage, Preethi was living with the 1[st] accused along with his mother the 2[nd] accused and his brother-3[rd] accused at their residence in Bedakam Gramam. After the marriage, the 1[st] accused demanded an amount of Rs.5,000/- as dowry in addition to Rs.10,000/- which was given to the 1[st] accused by PW3. While Preethi was residing at the residence of the accused, they had **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [22 x 8] intentionally omitted <==** physically and mentally tortured her by demanding more dowry. On 25.6.2005 between 1 pm and 2 pm, Preethi had committed suicide on account of unbearable physical and mental harassment exerted by the accused. It is alleged that the 1[st] accused being the husband of the aforesaid Preethi and 2[nd] and 3[rd] accused being the relatives of the 1[st] accused subjected her to cruelty which was of such a nature as was likely to drive her to commit suicide. 4. Suicide reflects a “species of fear”. It is a sense of defeat that corrodes the inner soul, destroys the will power and forces one to abandon one's own responsibility (Crl.A.No.2086/2014- **State of Kerala and Others V. Unnikrishnan Nair and Others** [(2015) 9 SCC 639]). Husband or relative of the husband of a woman subjecting her to cruelty shall be **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [22 x 8] intentionally omitted <==** punished with imprisonment for a term which may extent to three years and also liable for fine under Section 498A of the IPC. For the purpose of the Section, “cruelty” means 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. 5. In this case, PW1 the Head Constable attached to the Bedakam Police Station registered Ext.P1 First Information Report after recording the statement of the 3[rd] accused-Lohithakshan on 25.6.2005 as per Section 174 of Cr.P.C. Later investigation revealed that the accused 1 to 3 subjected the wife of the 1[st] accused to cruelty of such a nature as was likely to drive her to commit suicide. **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [22 x 8] intentionally omitted <==** Hence, investigation was proceeded for the offence under Section 498A of IPC. 6. The trial court framed charge for the offence punishable under Section 498A of IPC against accused Nos.1 to 3 to which they pleaded not guilty and claimed trial. 7. To substantiate the charge, the prosecution examined PWs.1 to 19 and marked Exts.P1 to P9. On closing the evidence of the prosecution, the accused 1 to 3 were questioned under Section 313 of Cr.P.C. According to them, they were away from the residence at the time of her death. They further stated that they were on good terms with Preethi and they had not demanded dowry as alleged by the prosecution. There was no dispute of any kind between them. Accused 1 to 3 treated her with love and affection. They never **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [22 x 8] intentionally omitted <==** beat, humiliated and harassed the deceased Preethi in any manner during her life time. They added that Preethi had accidentally slipped and fell down into the well while she went for taking water near the well. No oral evidence was adduced by the defence. However, Ext.D1 kychit was marked through PW1. 8. PW3 is the father of deceased Preethi. According to him, he had given 15 sovereigns of gold ornaments at the time of marriage to the deceased. 1½ months after the marriage A1 demanded an amount of Rs.10,000/- and accordingly the said amount was entrusted with his daughter. Thereafter, according to PW3, the accused demanded Rs.5,000/more from him. In his chief examination, he stated that later he heard his daughter committed suicide. ## **Crl.Rev.Pet.No.1697 OF 2011** ..8.. 9. In cross-examination he stated that the entire expense in connection with the marriage was expended by both the parties. According to him, though dowry was asked in terms of money before the marriage, it was informed to the accused that giving dowry was not the practice prevailing in his family. Accordingly, the accused agreed to such a proposal. He further stated in cross-examination that he did not state before the Investigating Officer that the accused ill-treated his daughter demanding more dowry. He further admitted that on 29.8.2005, whatever gold ornaments he had given to his daughter voluntarily at the time of marriage were returned back to him as per Ext.D1 kychit. He also admitted that an amount of Rs.10,000/- which was allegedly given to him by way of dowry had not been stated in Ext.D1. On going ## **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [22 x 8] intentionally omitted <==** through the evidence of PW3, there is nothing on record to indicate that accused 1 to 3 ill-treated the deceased before her death. 10. PW2 is the son of PW3 and the brother of the deceased. He stated that 15 sovereigns of gold ornaments were given to his sister at the time of marriage. On the other hand, PW3, who is none other than the father of PW2, stated that he had given some gold ornaments to his daughter at the time of marriage. He had no case that 15 sovereigns of gold ornaments were entrusted to the accused. PW2 further stated that the marriage expenses was shared by both the parties in connection with the marriage of his sister with the accused. He further stated in crossexamination that no demand was made to give gold as dowry before the marriage. He did not know anything **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** regarding the payment of Rs.10,000/- as dowry to the accused after the marriage. According to him, PW3 informed him that an amount of Rs.10,000/- was paid to the accused as demanded by him. 11. PWs.4 and 5 are closely associated with the deceased. PW4 had an occasion to see the deceased after her marriage. According to her, the deceased informed her that the accused and his brother and mother used to ill-treat her in her matrimonial home. She bonafide believed that the deceased committed suicide on account of ill-treatment made by the accused. She further stated that the 2[nd] accused did not like if anybody calling her over phone. Hence, she asked her not to make any call to her matrimonial home in future. **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** 12. PW5 stated that she had an occasion to see her after the marriage. She had telephoned the deceased before her death twice. While so, according to her, the deceased informed her that she was in distress and her mother-in-law did not like others calling her over phone. She also stated that the deceased informed her that the accused 1 to 3 illtreated her. 13. PWs.4 and 5 stated that the Investigating Officer did not question them directly and recorded their statements. According to them, the Investigating Officer questioned them over phone. However, PW17 stated that he had recorded their statements after questioning them directly. 14. PW6 is the mother of the deceased. Contrary to the evidence let in by PWs.2 and 3, PW6 stated that **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** the accused demanded dowry from them before the marriage which was refused to be given. She further stated that at the time of marriage a gold chain was adorned to the accused by his daughter. After the marriage, the gold chain was found missing and on being asked the accused informed her that the gold chain was given to one of his neighbours in connection with a marriage function. Later it was informed that the gold chain was mortgaged by him as he had no money with him. She also stated that whatever gold ornaments given to her daughter at the time of marriage were sold away by the accused and the accused 1 to 3 ill-treated her in her matrimonial house. She improved her version stating that the accused demanded gold ornaments weighing 6 gms. from PW2. However, PW2 did not state such a version **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** before court. She also improved her version by stating that an amount of Rs.2,000/- was borrowed by A1 from the niece of her husband. It is pertinent to note that PWs.2 and 3 had no such case when they were examined before court. PW6 had no direct knowledge regarding the alleged payment of Rs.10,000/- by her husband to the accused as dowry. 15. PW7 is the uncle of the deceased. He deposed that an amount of Rs.5,000/- was demanded as dowry after the marriage. In cross-examination he admitted that he is a signatory in Ext.D1 kychit. He also stated that the amount alleged to have been given to the accused is not stated in Ext.D1. PW7 is a witness in Ext.D1. It is disclosed that 5 items of gold ornaments, watch, suitcase, book, certificates, dress materials and chappels were entrusted to PW3 by ## **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** virtue of Ext.D1. In Ext.D1 PW3 is a signatory and PW7 is a witness. Ext.D1 was executed on 29.8.2005. 16. Although PW2 to PW7 did not give statements before PW17 that the accused treated the deceased cruelly and demanded dowry by way of cash or gold, they had improved their version during their examination before court stating that the accused 1 to 3 ill-treated them and demanded more dowry from them. PW2 the brother of the deceased clearly stated that at the time of marriage he did not hear any demand of money by the accused 1 to 3. PW2 further stated that his sister would be present at home and the accused 1 and 2 used to go for job outside during day time. PW3 the father of the deceased did not state any specific instance whereby the accused 1 to 3 illtreated his daughter demanding more dowry. PWs.4 **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** and 5 who are stated to be the friends of the deceased cannot be entertained as they had stated before the trial court that PW17 did not question them in accordance with Section 161 Cr.P.C. They were questioned over the telephone. In addition to the above, the gold ornaments and the gold chain alleged to have been adorned by the accused at the time of marriage were returned back subsequent to the occurrence as per Ext.D1 kychit. However, the main allegation raised by PW7 is that the gold ornaments were misappropriated by the accused due to paucity of funds. No explanation was offered by the witnesses as to the circumstances under which the gold ornaments were received back by them after the death of the deceased without any demur after executing Ext.D1 kychit wherein PW3 is a signatory **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** and PW7 is a witness. Hence the alleged misappropriation of gold ornaments by the accused 1 to 3 is difficult to believe. There is no case for the prosecution that whatever gold ornament returned back to PW3 was after the occurrence in this case and the accused purchased fresh gold ornaments in lieu of the gold ornaments misappropriated by them by virtue of Ext.D1. In view of the above, the very allegation that the gold ornaments were misappropriated by the accused is not proved. 17. Ext.P3 inquest report and Ext.P5 postmortem certificate would indicate that the death was caused due to drowning. PW13 the Forensic Surgeon who conducted autopsy on the body of the deceased had noted no external injury on her body. The case of the accused is that when the deceased had gone to fetch ## **Crl.Rev.Pet.No.1697 OF 2011** ..17.. water from the well and while pulling up the pail of water she accidentally slipped and fell down into the well and died. The defence case cannot be taken as true. There were no injuries on her body. As per Ext.P4 scene mahazar, there was no fixation of pulley over the well for pulling up of the bucket. No rope was also located. It was difficult for anyone to fetch water without bucket from the well. The fact that the death was due to drowning is proved from the evidence of PW13. 18. Admittedly, the deceased committed suicide within a period of 4 months from the date of her marriage. Section 113A of the Indian Evidence Act reads as follows:- _“113A. Presumption as to abetment of suicide by a married woman_ _When the question is whether the commission of suicide by a woman had been abetted byher husband_ **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** _or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.”_ 19. In the absence of direct evidence the prosecution has relied upon Section 113A of the Indian Evidence Act under which the court may presume on proof of circumstances enumerated therein and having regard to all other circumstances of the case, it is difficult to hold that the suicide had been abetted by the accused. ## 20. In **State of West Bengal v. Orilal Jaiswal** ## **(1994 (1) SCC 73)** the Apex Court observed thus:- _“15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in the civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved_ ## **Crl.Rev.Pet.No.1697 OF 2011** ..19.. _beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498A I.P.C. and Section 113A of Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubt must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Eater v. Bater (1950) 2 All ER 458 at p.459 has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter.”_ 21. Adverting to the facts of this case, it is a fact that the marriage between the accused and the deceased had taken place on 27.2.2005 and the ## **Crl.Rev.Pet.No.1697 OF 2011** ..20.. deceased suffered an unnatural death within four months of the marriage. However, it is further required to be proved that the deceased was subjected to cruelty by her husband and his relatives. As discussed herein above, all the material witnesses had improved their version before court. On going through the evidence of PWs.2 and 3, there were absolutely no allegation of demand of dowry before the marriage. However, after the death of the deceased, they had set up a case that the deceased was subjected to cruelty by all the 3 accused persons demanding more dowry. It was disclosed that the 3[rd] accused lodged FIR before the police. PWs.2 and 3 did not lodge any information before the police alleging illtreatment at the very inception. Ext.D1 would show that there was no demand of dowry even before the **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** death or soon after the death of the deceased. No complaint or protest was made by PWs.2, 3, 6 and 7 before the police. This would lead to the inference that the entire theory of demand of dowry was an after thought after the death of the deceased. All the witnesses made an attempt to improve their case when they were examined before court travelling beyond the scope of the statements recorded under Section 161 of Cr.P.C. by the Investigating Officer. 22. In the case on hand, material improvements have been made by the witnesses regarding the demand of dowry as such and such evidence is not desirable to invoke the presumption under Section 113A of the Evidence Act. The conduct of PWs.3 and 7 would show that they had received the entire gold ornaments including chappel of the deceased from the **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** accused after the death of the deceased by way of Ext.D1. The alleged cash transaction is conspicuously absent in Ext.D1. Keeping in view of the circumstances of the present case where the witnesses have made material improvements in their testimony coupled with their conduct in receiving the entire gold ornaments and material things by way of Ext.D1 after the death of the deceased, it is unsafe for this Court to draw a presumption that the accused had abetted her to commit suicide. 23. Mere suspicion, however strong it may be, cannot take the place of legal proof. Merely because a young lady has brought her life to a tragic end by committing suicide, it cannot be said that she had committed suicide on account of any demand of dowry by her husband, mother-in-law and her husband's brother. **Crl.Rev.Pet.No.1697 OF 2011** **==> picture [28 x 8] intentionally omitted <==** 24. The object of the provisions of criminal revision is to set right a patent defect or an error of jurisdiction or law. In view of the discussions made above, it is clear that the impugned judgment on the face of it bears lack of careful consideration and does not appear to be in accordance with law. The findings recorded by the trial court as well as the appellate court are based on no evidence. Thus, judicial finding was rendered arbitrarily or perversely. The impugned judgment is illegal, irregular and improper. In the result, the Crl.R.P. is allowed. The conviction and sentence imposed by the trial court as confirmed by the appellate court are set aside. The revision petitioners/accused 1 to 3 are acquitted for the offence under Section 498A of the Indian Penal **Crl.Rev.Pet.No.1697 OF 2011** ..24.. Code. Cancelling the bail bonds of the accused 1 to 3, this Court directs that they be set at liberty. Sd/- **N.ANIL KUMAR, JUDGE** skj