Kuriachen @ Syriac v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** **CRL.A NO. 1227 OF 2016** **AGAINST THE JUDGMENT IN SC 74/2016 OF ADDITIONAL DISTRICT and** **SESSIONS COURT, PALA** **CP 12/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PALA** ## **APPELLANT:** **KURIACHEN @ SYRIAC AGED 48, S/O. JAMES,KOCHUPURACKAL HOUSE,NEAR ATHIRAMPUZHA ST. FERONE CHURCH,ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICTG.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.R.GITHESH SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THEPUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** **BY ADVS.** **SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38)** **THIS CRL.A HAVING BEEN FINALLY HEARD ON 02.03.2022, ALONG WITH CRA(V).715/2017 BY DEFACTO COMPLAINANT/VICTIM, THE COURT ON 08.03.2022 DELIVERED THE FOLLOWING:** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 CRA(V) NO. 715 OF 2017** **AGAINST THE JUDGMENT IN SC 74/2016 OF ADDITIONAL DISTRICT COURT,** ## **PALA** **CP 12/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PALA** ## **APPELLANT:** **GRACY PHILIP AGED 63 YEARS AGED 63 YEARS, W/O.LATE PHILIP,PARUVANANIKKAL HOUSE, THODANAL P.O,PULIYANNUR VIA, KOTTAYAM DISTRICT.** **BY ADVS. SRI.A.X.VARGHESE SRI.A.V.JOJO** ## **RESPONDENTS:** **1 REJIMOL W/O. EAPPACHAN, AGED 49,KOCHUPURACKAL HOUSE,PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE,KOTTAYAM PIN 686 562 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, 682 031** **BY ADVS. ADVOCATE GENERAL OFFICE KERALA SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38)** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 02.03.2022, ALONG WITH CRL.A.1227/2016, THE COURT ON 08.03.2022 DELIVERED THE FOLLOWING:** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **3** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -------------------------------Crl.Appeal No.1227 of 2016 & CRA(V)715 of 2017** **-------------------------------Dated, this 08[th] March, 2022** ## **JUDGMENT** ## **K.VINOD CHANDRAN, J** **Suicide by reason of domestic violence perpetrated by the husband or problems arising out of pregnancy and delivery, is the question raised in the appeal filed by the convicted/accused. The appeal by the victim challenge the acquittal of A3; the sister-in-law of the deceased.** **2. Sri.Prijith, argued for the accused appellant and Sri.Jojo A V argued for the mother of the deceased who approached this court with the victim appeal. Smt.Sheeba Thomas learned Public Prosecutor argued for the State.** **3. Sri Prijith took us through the entire evidence and pointed out that the trial court judgment is bereft of any discussion. The conviction is based on mere surmises and conjectures and the prosecution itself was** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **4** **launched after a delay of nine years, that too, on the basis of a direction issued by the Kerala State Women's Commission for further investigation which order is totally without jurisdiction. The learned Counsel pointed out that the earlier FIS was suppressed from Court and so were the prior statements made by the immediate relatives of the deceased. There was no complaint at the time of death and later, the allegations surfaced only when A1 took his child to his own house. Even then the statements made to the Police did not contain many of the facts deposed before Court. PW3 was a planted witness quite evident from her deposition itself. PWs 1 and 2 spoke of the happy married life of their daughter at the first instance and then turned turtle to raise unsubstantiated allegations. Many of the statements made before Court on the marital discord and the attempts made by the wife's family to defuse it, as also the immediate cause of the suicide were not stated to the police in the S.161 statements taken after the further investigation was ordered. There is absolutely no ground to convict the accused and he deserves to be acquitted, is the** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **5** ## **compelling argument.** **4. Sri.Jojo pointed out that it was on the influence exerted by A3, a Police Constable that the entire investigation was diverted and two final reports filed. The hapless mother of the deceased, examined as PW2 had been running from pillar to post to get the perpetrator of the crime to be arrested. PW2 was consistently before the various authorities and eventually the culprits were booked in the further investigation. The evidence of PWs 1 to 3 clearly bring out the circumstances, in which the deceased was living in her marital home. The demand for dowry has also been established, which was the immediate cause of the suicide. It is argued that not only A1, A3 had also made frequent demands of dowry. There is clear evidence of A3 having ill treated the deceased. The trial court ought to have convicted A3 also. It is argued that A1's conviction and sentence in any event has to be upheld. The learned Public Prosecutor Smt.Sheeba Thomas, argued for sustaining the judgment and supported the cause urged in the victim appeal also.** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **6** **5. Three accused, husband, father-in-law and the sister-in-law of the husband, were charged under Ss.498A, 304B r/w 34 IPC. A2, the father-in-law died in the course of the trial and A3 stood acquitted. A1 was convicted and sentenced to imprisonment for 3 years under S.498A and 7 years under S.304B IPC. In addition to the fine of Rs.10000/-, and Rs.1,00,000/- respectively for the two offences and default clause, a further compensation of Rs.1 lakh was directed to be paid to the mother of the deceased, PW2.** **6. PW15 is the Doctor who conducted the post mortem. The opinion as to cause of death was that the findings in post mortem are consistent with death due to corrosive poison. The medical evidence fully corroborates the testimonies of PW1, the brother of the deceased, PW2, the mother and PW4, the maternal aunt; who spoke of the deceased having consumed acid in her family residence. PW17 is the I.O who is said to have taken up the reinvestigation in the year 2012, pursuant to orders of the Women's Commission, almost 9 years after the death by suicide. Ext.P16 the order issued from the Kerala Women's** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **7** **Commission for further investigation and Ext.P17 is the order entrusting him to carry out the investigation. It was PW17 who filed Exts. P12 to 15 reports before Court, intimating the re-investigation, the production of documents and the addition of Sections 498A & 304B IPC. That it was a case of suicide is well established by the testimony of the witnesses and the medical evidence.** **7. PW1 is the brother who deposed having given 17 ½ sovereigns and Rs.50,000/- as the share of the deceased when she got married to A1. A1 was staying with his wife in a house near to his family house. The allegation was that A1 complained of the gold given to his wife, being old gold and demanded that she be paid a further amount of Rs.30,000/-. The specific deposition of PW1 is that he heard the demand from the deceased. PW1 does not speak of any demand made directly by A1 to the family of the deceased. PW1 expressed the financial difficulties on account of which the family of the deceased was not able to comply with the demand of A1. He also alleged that his sister was never allowed to visit her family, and even when she was pregnant, she was** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **8** **allowed to stay with her family only for a day. Even after the delivery, his sister was not allowed to come home and his mother arranged PW3 to look after the child. He admitted that after about 10 to 20 days on 01.09.2003, his sister came with the child to the family house. He alleged that they were brought in a Car by A1 on condition that she need return only with Rs.30,000/-. A1 did not even enter the family house of his wife. His sister, at the family house was visibly disturbed and told him of A1's statement to her that he does not have a fixed salary to come regularly to his wife's house and that he asked her to commit suicide by taking the medicines kept for her father. This was specifically marked as an omission in cross-examination, proved as an omission by PW17, the I.O. This omission was projected by PW1 as the immediate motivation for his sister to commit suicide by consuming acid.** **8. It was PW4, who saw the deceased lying supine and sensing the smell of acid she informed PW1 and PW2. The deceased was first taken to a hospital at Kozhuvanal and then to the Medical College Hospital, where she was** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **9** **brought dead. As far as the FIS made, produced as Ext.D5, PW1 denied having given such a statement, but admitted a signature having been taken from him by A3, a Constable at the Pala Station. The signature, according to him was taken on the threat that he will be booked in a criminal case; in the presence of A3 and a named Head Constable. It was also alleged that he had given complaints to the SP and DGP. PW1 also made incomprehensible statements in cross-examination that he was not aware whether his family had even one cent during the relevant period and that he did not know whether the house in which he was residing, wherein his sister also died, was in the name of his father's brother. Despite assertion to the contrary, his prior statement at Ext.P1 proved through the I.O, was that he came to know of the harassment perpetrated on his sister by A1, after her death. PW1 also made prevaricating statements as to who paid the hospital bill, for the delivery of the deceased. First he said that it was A1, then he asserted that it was himself and again admitted that it was by A1 and also stated that he does not remember. He feigned ignorance** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **10** **about sleeplessness suffered by his sister after the delivery and admitted that his family had not taken her to any hospital. PW1 also admitted that A1 wanted the child, but he and his mother were not in favour of that. However, the police took the child from them and handed it over to A1. It was also admitted that it was after the child was taken from them, the complaint was raised before the Dy.SP by the mother, PW2.** **9. PW2 more or less spoke in tune with what PW1 said about the demand of dowry by A1. She too complained of her daughter having not been sent home for delivery. But she admitted that she was with her daughter in the hospital and after caesarian, the mother and child were discharged within three days. The Hospital was near the residence of A2 and the mother and child, after delivery, were taken to A1's residence. She alleged that since money was not paid to A1, he was enmical towards his wife and PW3. She spoke of having gone to Kasargod, her own house, to get the money. She was unsuccessful and when that was informed to A1, he asked her to take her daughter and the child away from his residence. When she** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **11** **informed him that they will be taken after two days, it was alleged that PW3 told her that if her daughter is kept in A1's house, they may kill her. A1 then, called a Car and brought them to the PW2's house.** **10. PW2 also deposed that her daughter used to call A1 daily, when he responded that only on getting the money, he will come. She was not in station when her daughter consumed poison but came immediately after it was detected. In cross-examination, it has come out that her statement that she promised to give Rs.30,000/- when her son comes from Delhi was not stated before the police. She admitted that the entire delivery expenses were borne by A1 but herself and her daughter were left without food for three days. This fact was not stated in the 164 statement. It was also brought out in crossexamination that PW2 had not stated about PW3 at the first instance to the police.** **11. PW3 is the person who is said to have been entrusted with the care of the daughter and the child by PW2. She said that she had told PW2 that A1 would kill her daughter and that the deceased, had always been** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **12** **crying, for reason of the mental harassment of A1. She also spoke of the deceased having confided to her, the desire to commit suicide. This was not stated in her statement to the police as proved by the I.O, PW17. According to PW17, PW3 only told the police that she asked PW2 to take her daughter away since her daughter expressed inability to live with A1. In crossexamination, PW3 said that she had been to Delhi to look after the children of PW2's elder son. She also admitted that the deceased was in Delhi when she went there and after she arrived, the deceased came back. She spoke of having gone to the house of A1, nine days after the pregnancy. She said that she does not know the number of rooms in A1's house. PW4, the sister of PW2, had a different version about the demand of dowry. According to her, there was a shortage of Rs.30,000/- at the time of the marriage of the deceased.** **12. PW5 was the witness to Ext.P1 Inquest Report. PW6, a relative of the deceased, who denied having put his signature in Ext.P1. PW7 witnessed Ext.P2 mahazar, by which a Jar was seized by the police,** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **13** **presumably containing acid which was consumed by the deceased. PW8 is the Tahsildar who conducted the inquest and PW9 produced the Ownership Certificate of the scene of occurrence which was in the name of one Cyriac J Kochukurian, whose identity is not clear. PW10 is the Pastoral Assistant who produced the Marriage Register kept in the Church and PW11 seized the same as per Ext.P4 mahazar. PW13 is the person who registered the FIR, Ext. P9. In cross-examination, Ext.D5 earlier FIS was also marked through PW13, who said that when the statement was recorded, A3 was not present. PW14 is the Sub Inspector who seized the Marriage Register by Ext.P4 mahazar and PW16 submitted Ext. D6 final report before Court, a refer report of the death being one by poisoning.** **13. Ext.D1 is the contradiction marked in the evidence of PW1 by which he made a prior statement that it was subsequent to the death of his sister that himself and his mother came to know about the continued mental and physical torture, his sister was subjected to by A1 for reason of her family having not satisfied the demand of dowry. Ext.D4 is the prior statement made by PW4 that** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **14** **her niece was found depressed which she assumed was by reason of the caesarian conducted on her. These were the contradictions from the prior statements after reinvestigation commenced. Ext.D5 is the FIS of 10.09.2003, by PW1 immediately after the incident. Pertinently it was suppressed by the prosecution. It speaks of the suicide by consuming acid and the immediate transport to the hospital, which turned futile. The FIS also spoke of PW2, after bringing her daughter and child home, detected that the daughter was suffering from sleeplessness. The deceased used to walk around in the night and also constantly complain about not getting any sleep, after the delivery. The specific statement of PW1 was also that his sister had committed suicide due to a mental disorder which arose after her delivery. It was asserted that the family harboured no doubts about the death. It was PW1 who informed A1 about the death of his wife.** **14. Ext.D7 is the attendance register of the Pala Police Station which indicates that A3 was on maternity leave from 01.09.2003. Hence obviously on 10.09.2003, she was not present in the Police Station when the FIS was** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **15** **recorded as alleged by PW1. DW1 was the Quarter Master of the AR Camp Kottayam who produced Ext.D8 series of documents clearly indicating that A3 was staying in the government quarters, G/10R at Muttambalam, Kottayam between 1992 and 2004. It has to be emphasized that there is nothing incriminating against A3, stated by PW1 and PW2. Only reference to A3 by PW1, is the alleged threat made by her at the Police Station when a signature was taken from PW1 at the Police Station. We have seen from the attendance register of the Police Station that A3 was on maternity leave long prior to the said date. As far as PW2 is concerned, reference to A3 is the alleged complaint made by the deceased to A1 that he would go to A3 even in the dead of night, if summoned by her and A1 had only difficulty in coming to his own wife. PW13 the Officer who recorded the FIS categorically stated that A3 was not present when the FIS was recorded. PW17, deposed in cross-examination that PW1 made a statement to the effect that PW13 recorded his FIS and there was no allegation of any threat having been levelled against him to make the statement. The witnesses do not speak of any** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **16** **demand of dowry or harassment on the part of A3. We find none of the charges having been made out against A3 and her acquittal to be perfectly in order.** **15. The version of PW1, PW2 and PW4 the brother, mother and the maternal aunt of the deceased are quiet inconsistent with their earlier statements and also with each other. When PW1 and PW2 alleged that there was a demand of dowry of Rs.30000 made by the accused to the deceased, it is also their case that the accused paid up the entire bills for the delivery of his wife. Admittedly the delivery was in a hospital near to the residence of the accused and PW2 the mother is said to have been with the deceased at the time of delivery, in the hospital. The allegation raised was that she was never sent to her family house after her pregnancy and that even after delivery she was taken to the husband's house. These acts or omissions were alleged to be due to the demand of dowry, having not been met by the family of the wife of the accused. However, immediately after the delivery the allegation was that the accused wanted his wife and child to be taken away by her family, to be** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **17** **returned only after payment of the additional amounts demanded. The reason for demand of dowry according to PW1 and PW2 was due to old gold having been given to the bride at the time of marriage. On the contrary PW4 claimed that the bride's family was not able to raise Rs.30000/- at the time of marriage. Further the immediate cause for the suicide as narrated by PW1 being the depression of his sister; due to the accused having asked her to commit suicide, was not stated to the police in his S.161 statement. The omission pointed out in crossexamination was proved through the I.O, PW17.** **16. PW3 the maid who had been looking after the mother and child, immediately after delivery, had never been spoken of by PW1 or PW2 before the further investigation ordered, after nine years. It is very pertinent that PW1 and PW2 admit to the difference of opinion with the accused insofar as the custody of the infant child. It is more pertinent that the complaint, of a demand for dowry having induced the suicide, was first raised after the infant child was taken away by the father, the accused.** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **18** **17. The learned trial Judge had found fault with the accused for having not treated his wife for sleeplessness and also found fault with the accused for not sending the pregnant wife to her family home and having delayed the visit to her family home after delivery. The trial court also made a bland observation, of somnambulism not being caused due to pregnancy; which we are afraid the learned Judge did not have the competence to make without any expert opinion on that count. The fact that the husband did not permit the wife to go home after pregnancy need not be viewed with suspicion, without anything more. Admittedly, the wife was consulting a doctor in a hospital nearby to the residence of the husband. The wife's mother was also a bystander at the hospital, during the time of delivery. Delivery was on 14.08.2003 and that too a caesarian. The wife, on discharge was taken to the nearby marital home and was taken to her family home just two weeks after that, on 01.09.2003. It is relevant that the evidence of PW1 & 2 also reveals that after marriage, the deceased had gone to see Delhi, with her elder brother, who was** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **19** **settled in Delhi; quite incongruous with the statement of the family of the deceased that she was not permitted to visit her family house.** **18. As we noticed, no complaints were made immediately after the suicide which would have been the normal conduct if the circumstances between the husband and wife where, as spoken of by PW1 and PW2. There is a reasonable doubt as to whether the allegations are correct and the prosecution has failed to establish that there was in fact a demand for dowry as projected by the prosecution. Many of the allegations raised by PW1 and PW2 were made for the first time before Court. The I.O, PW47 was specifically asked about these statements, which were proved as omissions. There is no cruelty or harassment clearly made out, as having been perpetrated by the husband against the wife which is a necessary ingredient of the offence under section 304B as held in** _**Kashmir Kaur and another v. State of Punjab [2012 (13) SCC 627**_ **and** _**Pradeep Kumar v. State of Haryana [2014(7) SCC 395].**_ **The Hon'ble Supreme Court in** _**Anil Kumar @ Anil Kumar Ganna v. State of Karnataka [2013(7) SCC 2019]**_ **held that where the basic ingredients of harassment and cruelty are not made out, the presumption** **Crl.Appeal Nos.1227/2016 & Crl.A(V)No.715/2017** **20** **under Sections 113A & 113B of the Evidence Act cannot be availed of to find the accused guilty.** **19. There is a reasonable hypothesis in so far as the wife of the accused having committed suicide by reason of sleeplessness and attendant mental disorders after the delivery. We find no reason to sustain the conviction of the appellant/accused and allow Crl.Appeal No.1227 of 2016 acquitting the appellant/accused and directing his release from the prison if he is not needed in any other case. If he is on bail, the bail bonds shall stand cancelled. The amounts deposited by the accused as a condition of grant of bail shall also be refunded to him. Before leaving the matter we cannot but observe that statutory bodies like the Kerala Women's Commission, should be wary in interfering with matters of investigation, which is regulated by the Code of Criminal Procedure.** **Crl.A No.1227/2016 allowed and Crl.A(V)** **No.715/2017 rejected.** **Sd/K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **Jma/lgk/**