KESUKUTTAN @ KESU v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 16TH DAY OF NOVEMBER 2012/25TH KARTHIKA 1934 Crl.Rev.Pet.No. 2209 of 2004 (A) -------------------------------- CRA.199/2000 of ADDL. SESSIONS JUDGE,FAST TRACK COURT-I, ALAPPUZHA SC.134/1990 of PRINCIPAL ASST. SESSIONS JUDGE, ALAPPUZHA REVISION PETITIONER(S)/APPELLANT/ACCUSED:: ----------------------------------------- KESUKUTTAN @ KESU, S/O. KESAVAN, PADINJAREKATTIL VEEDU, AMBALAPPUZHA, ALAPPUZHA. BY ADV. SRI.S.SHANAVAS KHAN COMPLAINANT(S)/RESPONDENT/COMPLAINANT:: --------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ROY THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. Crl.R.P. No. 2209 of 2004 .................................................. ## Dated: 16-11-2012 ## ORDER The accused was concurrently held guilty and convicted of the offence punishable under Sec. 304B of I.P.C., and was sentenced to undergo R.I. for seven years. This Revision Petition is directed against the said conviction and sentence passed against him. 2. The case of the prosecution is that deceased Bindu Kumari, the wife of the accused was subjected to cruelty with a view to coerce her to meet his unlawful demand for dowry. Because of the cruel treatment she was subjected to, she committed suicide by consuming/eating cerbera odollam. Hence, the prosecution contends that the accused committed the offence of dowry death punishable under Sec. 304B of I.P.C. **Crl.R.P. No. 2209 of 2004** -:2:- 3. P.Ws1 to P.W.4 were examined and Exts. P1 to P10 were marked on the side of the prosecution. 4. The learned Asst. Sessions Judge, after thoroughly scanning the evidence found that the prosecution could establish that the accused committed the offence under Sec. 304B and thus he was convicted and sentenced. The learned Addl. Sessions Judge re-appreciated the evidence and concurred with the conviction and sentence passed against him. 5. The fact that Bindu Kumari was married by the accused on 15.06.1995, is not disputed. The courts below have found that Bindu Kumari consumed or ate Cerbera Odollam on 17.07.1998 and because of the poisonous effect, she died on 18.07.1998. It is not in dispute now. The evidence given by PW1 the mother of the deceased, PW2 the maternal uncle, PW3 the brother of the deceased would unmistakably prove that the accused had subjected his wife Bindu Kumari to such harassment with a view to **Crl.R.P. No. 2209 of 2004** -:3:- coerce her to meet his unlawful demand for dowry. 6. The evidence would show that the amount agreed to be paid to the accused as dowry was Rs.10,000/-. Besides, gold ornaments to the possible extent was also agreed to be given. Out of the amount so agreed, Rs.3,000/was paid. 13 grams of gold ornaments were also given at the time of marriage. It is in evidence that subsequent to the marriage, another sum of Rs.1,000/- was also paid to the accused. The evidence would also show that the accused used to harass the deceased by making persistent demand for the balance amount of dowry. The evidence given by PWs1 to 3 would show that the accused tortured the deceased by beating her when she refused to bring the balance amount of dowry. 7. There is also evidence to show that the deceased had gone to her parental house on 11.07.1998 and till 14.07.1998 she stayed in that house. On those days, the accused had gone to that house and demanded for the ## **Crl.R.P. No. 2209 of 2004** ## -:4:- balance dowry amount. As the amount was not paid, she was beaten up by the accused from there also. The cruelty shown to her was intolerable as could be gathered from the evidence on record. There is also evidence to show that because of the unbearable treatment, PW1 had borrowed Rs.1,500/- from her neighbour on 13.07.1998 and she paid the same to the accused towards the balance dowry. That fact was not effectively controverted by the defence. 8. PW4 and PW5 are the neighbours of PW1. They also deposed that the accused used to quarrel with Bindu Kumari and that they had actually seen the accused beating or assaulting deceased Bindu Kumari. They also stated that the deceased used to tell them about the harassment and cruel treatment meted out her at the hands of the accused. 9. The learned counsel for the petitioner has argued with vehemence that the persons residing in the nearby house of the accused have not been examined to prove that the accused used to ill-treat or harass the deceased. **Crl.R.P. No. 2209 of 2004** -:5:- According to the learned counsel, if the accused had caused physical torture to the deceased then it would have been witnessed by the persons residing in the nearby house of the accused. It is quite natural that when the wife residing in the house of her husband, will not divulge to the neighbours the cruel treatment or harassment with which she was subjected to. PW1 to PW3 are the most competent witnesses to speak regarding the harassment or cruel treatment of the accused towards the deceased. Their evidence does not suffer from any infirmity on the other hand it appears to be the unvarnished truth. Their evidence gets further corroboration from PW4 and PW5, the neighbours of P.W.1. Hence, the evidence on record is sufficient to hold that the accused harassed his wife, deceased Bindu Kumari, in order to coerce her to meet his unlawful demand for dowry or part of the amount payable as dowry. 10. Deceased Bindu Kumari committed suicide within **Crl.R.P. No. 2209 of 2004** -:6:- seven years from the date of marriage. In order to attract the presumption under Sec.113B of the Evidence Act it must be shown that **soon before** the death, such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry. **Sec.304B reads:** "304 B. Dowry death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation - For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 11. The words “ **soon before** ” in Sec.113B is to be determined by the courts depending upon the facts and circumstances of each case. It is argued by the learned counsel for the petitioner that for three days; that is from 11.07.1998 to 14.07.1998, when Bindu Kumari was staying **Crl.R.P. No. 2209 of 2004** -:7:- in her parental home, the accused was also there and later the deceased accompanied her husband to his house on 14.07.1998 and so according to the learned counsel, it is unbelievable that she was subjected to cruelty or harassment by the husband. But there is ample evidence to show that the deceased had at first expressed her reluctance to go along with the accused and she had in fact told her mother that it is unbearable for her to stay with the accused. But the mother (PW1) directed her to accompany her husband. Therefore, it is not a case where the deceased willingly accompanied her husband but only because of the compulsion or persuasion of P.W.1 she went to her husband's house. Therefore, that is not a conduct which would run counter to the plea of harassment put forward by the prosecution. 12. The evidence given by PW1 to PW3, which is further corroborated by PW4 and PW5 was rightly accepted by the courts below to hold that soon before her death the **Crl.R.P. No. 2209 of 2004** -:8:- husband (accused) had subjected the deceased to cruelty or harassment for, or in connection with the demand for dowry. Therefore, the presumption under Sec.113B of the Indian Evidence Act also is available to the prosecution to sustain the charge against the accused, the prosecution contends. 13. The evidence would clearly show that the death of Bindu Kumari occurred otherwise than under normal circumstances within 7 years of marriage. There is also evidence to show that soon before the death she had been subjected to cruelty and harassment in connection with any demand for dowry. As these ingredients are seen fulfilled, the accused being the husband of Bindu Kumari who is proved to have subjected Bindukumari to such harassment can be presumed to be guilty of the offence under Section 304 B of I.P.C. Here the prosecution could prove that the cruelty or harassment related to the demand for dowry. The word "dowry" mentioned in Sec. 304B has to be ## **Crl.R.P. No. 2209 of 2004** -:9:- understood as is defined in Sec. 2 of the Dowry Prohibition Act. 14. The learned counsel for the petitioner would submit that it is not enough that the harassment or cruelty was caused to the woman with a demand for dowry at some point of time but it should have happened soon before her death. But so far as the case on hand is concerned there is evidence in abundance to show that soon before her death she was subjected to such cruelty or harassment demanding the balance amount payable to him towards dowry and that she was physically and mentally tortured by the accused. Therefore, the proximity to her death which is the pivot indicated by the expression soon before death is fully established in this case. (See the decision of the Supreme Court in **Satbir Singh v. State of Punjab - AIR 2001 SC 2828)** . In the instant case the evidence which has been found acceptable by the trial court and the appellate court is that the accused subjected his wife Bindu Kumari to **Crl.R.P. No. 2209 of 2004** **==> picture [28 x 9] intentionally omitted <==** such cruel treatment and harassment which led her to commit suicide which was a death "otherwise than under normal circumstances". To attract the provisions of Sec. 304B I.P.C. one of the main ingredients of the offence which is required to be established is that soon before her death she was subjected to cruelty and harassment in connection with the demand for dowry. There is evidence to show that the accused had demanded for the balance amount and though Rs. 1500/- was paid by P.W.1 after having obtained it from a neighbour the accused's (husband) was not satisfied and he still persisted for the balance amount. Though the deceased was reluctant to accompany the accused to his house, because of the persuasion made by her mother, she had to leave her parental home. She went to her husband's house and later committed suicide because of the intolerable treatment. It was the harassment and cruelty meted out to her by the accused which forced her to commit suicide. **Crl.R.P. No. 2209 of 2004** -:11:- 15. In these circumstances, there can be no difficulty to hold that the presumption under Sec. 113B of Evidence Act squarely applies to the facts of this case. Even other wise, there is unimpeachable evidence given by P.W.1 to 3, and other witnesses (P.W.4 and P.W.5) that the accused had subjected his wife Bindu Kumari to such cruelty and harassment in order to coerce her to meet his unlawful demand for the balance amount payable as dowry. See also the decision in **K.Prema S. Rao and Another v. Yadla Srinivasa Rao - AIR 2003 SC 11** . 16. The Courts below have thoroughly scanned the evidence and rightly came to the conclusion that the accused subjected his wife deceased Bindu Kumari to such cruelty and harassment in order to coerce her to meet his unlawful demand for dowry. See also the decision in **Yashoda and Another v. State of Madhya Pradesh (2004) 3 SCC 98** and **Kailash v. State of M.P. AIR 2007 SC 107.** ## **Crl.R.P. No. 2209 of 2004** -:12:- 17. I have gone through the judgments and also the evidence on record. I am fully convinced that the findings entered by the two courts below are perfectly correct. I find nor reason to interfere with the conviction entered against the petitioner. He was sentenced only to rigorous imprisonment for 7 years which the minimum prescribed under Sec. 304 B of I.P.C. As such the sentence awarded by the courts below also does not require any interference. In the result, this Crl. R.P. is dismissed confirming the conviction and sentence passed against the petitioner. The learned Asst. Sessions Judge will take steps to execute the sentence forthwith. _Dated this the 16th day of November, 2012._ N.K. Balakrishnan, Judge. ani.