MADHUKUMAR SUBHANANDHA BHAVAN (IRUMBATHUVEETTIL), KANJIRAM, BHAGAM, KILIROOR KARA, THIRUVARPPU VILLAGE, KOTTYAM v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943 CRL.A NO. 1155 OF 2008** **AGAINST THE JUDGMENT DATED 17.5.2008 IN SC 5/2008 OF SESSIONS COURT, KOTTAYAM** **CP 10/2007 OF JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM APPELLANT/ACCUSED:** MADHUKUMAR SUBHANANDHA BHAVAN (IRUMBATHUVEETTIL), KANJIRAM, BHAGAM, KILIROOR KARA, THIRUVARPPU VILLAGE, KOTTYAM. BY ADVS. SRI.P.SANJAY SRI.JINU JOSEPH SRI.A.PARVATHI MENON ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP.BY SUB INSPECTOR OF POLICE, KUMARAKOM,, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, BY SRI SANAL P RAJ,PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.1155/2008 ## -:2:- “CR” ## J U D G M E N T Dated this the 3rd day of December, 2021 This appeal has been filed by the accused in S.C.No.05/2008 on the files of the Sessions Court, Kottayam against the judgment dated 17.5.2008, convicting him under Section 498A of IPC. 2. The accused is the husband of the deceased namely Jyothi. They married in the year 1994. It was an inter-caste marriage. Two children were born in the wedlock. On 26.11.2006, the wife of the accused committed suicide. According to the prosecution, the accused subjected her to cruelty, both physically and mentally, so as to drive her to commit suicide and as a result of the said cruelty she committed suicide by consuming a poisonous fruit called odollam (Cerebera Odollam). 3. It was at about 11 am on 25.11.2006, the wife of the accused consumed poison at the house of the accused situated at Kiliroor Kara of Thiruvarppu Village. Immediately after the accused found his wife consumed the poisonous fruit mentioned above, he took her to the Medical College Hospital, Kottayam. She was treated at the hospital, Crl.A.No.1155/2008 ## -:3:- but, she died at 1.30 am on 26.11.2006. At 8 am on the same day, the brother of the accused, who was examined as PW1, went to the Kumarakom Police Station and gave Ext.P1 first information statement to PW11, the Sub Inspector of Police, Kumarakom Police Station. On the basis of Ext.P1, PW11 registered FIR under Section 174 of Cr.P.C. Ext.P6 is the FIR. He went to the Medical College Hospital and conducted inquest on the body of the deceased. The inquest report is Ext.P3. He went to the scene of occurrence and prepared Ext.P4 mahazar and questioned the witnesses. Thereafter, Section 498A of IPC was added and the appellant was arrayed as the accused. PW12 took up the investigation on 6.12.2006. He arrested the accused. He added Section 306 of IPC. He completed the investigation and filed final report before the Magistrate. The learned Magistrate after completing the statutory formalities committed the case to stand trial at the Court of Sessions. 4. The accused, on receipt of summons, appeared at the court below. After hearing both sides, the court below framed charge under Sections 498A and 306 of IPC. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PW1 to PW13 were examined and Exts.P1 to P9 were Crl.A.No.1155/2008 ## -:4:- marked. No defence evidence was adduced. After trial, the court below found that the prosecution failed to prove the ingredients to attract Section 306 of IPC and, hence, the accused was found not guilty for the offence under Section 306 of the IPC and he was acquitted for the said offence. However, the court below found the accused guilty under Section 498A of IPC and he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for one year with a fine of Rs.500/-, in default to suffer rigorous imprisonment for one month. Aggrieved by the said conviction and sentence, the accused preferred this appeal. 5. I have heard Sri. P. Sanjay, the learned counsel for the appellant and Sri. Sanal P. Raj, the learned Public Prosecutor. 6. The learned counsel for the appellant impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that having found that the offence under Section 306 of IPC is not attracted, the court below ought to have acquitted the accused under Section 498A of IPC as well. The counsel further submitted that the evidence of PW2 to PW5 relied on by the court below to convict the accused under Section 498A of IPC is not Crl.A.No.1155/2008 -:5:- admissible under Section 32(1) of Cr.P.C of the Indian Evidence Act and, hence, the court below went wrong in relying on their evidence. The counsel added that there is no direct evidence to prove the alleged cruelty. The learned prosecutor, on the other hand, supported the findings and verdict handed down by the court below and argued that necessary ingredients of Section 498A of IPC had been established and the prosecution had succeeded in proving the case beyond reasonable doubt. 7. The prosecution mainly relied on the evidence of PW2 to PW5 to prove the incident and fix the culpability on the accused. PW4 is the mother and PW5 is the father of the deceased. PW2 is a social worker to whom the deceased allegedly gave a complaint against the accused. PW3 is an independent witness, who is also an employer of PW4. It has come out in evidence of PW4 and PW5 that the deceased and the accused fell in love and they eloped and contracted register marriage. It has also come out in evidence that thereafter they lived together at the house of the accused. It is also evident from the evidence of PW4 and PW5 that the relationship of the Crl.A.No.1155/2008 ## -:6:- deceased and the accused with PW4 and PW5 was not that much cordial and the deceased and the accused seldom visited them. The children were all along brought up by the deceased and the accused. After the death of the mother, the children is admittedly in the care and control of the accused. The evidence tendered by PW4 and PW5 have to be evaluated in this backdrop. 8. PW4 and PW5 have no case that they saw the accused ill-treating, beating or exercising any kind of cruelty on the deceased either physically or mentally. There was no occasion for the same. In fact, they had admitted in cross examination that they did not see at all the accused ill-treating the deceased. They only gave evidence that on few occasions, when the deceased came to their house and stayed there, she told them that the accused used to ill-treat her. But, most part of the said evidence was brought as omission amounting to contradiction. That apart, admittedly, the last visit of the deceased was one month prior to the date of incident. Thus, there is nothing on record to show that in the close proximity of the incident the accused ill-treated the deceased. Even the version of PW4 and Crl.A.No.1155/2008 ## -:7:- PW5 is that prior to one month of the incident, the deceased told them about the ill-treatment. Similar is the evidence of PW2 and PW3. PW2 is a social worker. She is the managing trustee of a counselling centre namely 'Santhwanam'. She deposed that prior to two months of the death of the deceased, the deceased approached her and told her that the accused entertained doubt on her and used to ill-treat her. She further deposed that thereafter she did not meet her. PW3 is the employer of PW4. PW4 was employed as house maid at the house of PW3. She deposed that about 1 to 2 years prior to the death of the deceased, she came to her and told that her husband used to illtreat and torture her. PW2 and PW3 also admitted that they did not see directly the accused ill-treating or torturing the deceased. 9. Thus, admittedly, there is no direct evidence to prove the alleged cruelty exercised by the accused on the deceased. PW2 to PW5 only deposed that the deceased told them that the accused used to ill-treat and torture her. No doubt, their evidence is hit by Section 60 of the Evidence Act being hearsay evidence. The question is whether their evidence would fall Crl.A.No.1155/2008 ## -:8:- within the ambit of Section 32(1) of the Indian Evidence Act. Section 32(1) reads as follows: **“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant** :- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:— **(1) when it relates to cause of death.** —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 10. The statement of the deceased person so as to become admissible under Section 32(1) has to be in a case where the cause of that person's death comes into question. In a prosecution under Section 498A of IPC, the cause of death of the person concerned does not come into question and hence, Section 32(1) of the Indian Evidence Act does not get attracted. Even though in the present case, the initial charge was under Crl.A.No.1155/2008 ## -:9:- Sections 498A and 306 of IPC, the accused was acquitted under Section 306 of IPC and what remains is only 498A of IPC. That apart, none of the witnesses said that the alleged torture or illtreatment exercised by the accused on the deceased, as told to them by the deceased, led to the death of the deceased. By no stretch of imagination can the statement of the deceased allegedly spoken to PW2 to PW5 be connected with any circumstances of the transaction which resulted in her death. The circumstances which do not form part of transaction resulted in the death of the deceased would not fall within the scope of Section 32(1). The circumstance must have some proximate relation to the actual occurrence. Except Section 32(1) of the Evidence Act, there is no other provision under which the statement of a dead person can be looked into for evidence. The Supreme Court in _**Bhairon Singh v. State of Madhya Pradesh** [2009 KHC 4999]_ has held that the statement of a dead person is admissible in law only in a case where the statement is as to the cause of death or as to any of the circumstances of the transactions which resulted in her Crl.A.No.1155/2008 ## -:10:- death, in a case in which the cause of death comes into question and that in an offence under Section 498A simpliciter, the question of death is not and cannot be an issue for consideration and Section 32(1) of the Evidence Act does not get attracted. The said decision was followed by a Single Bench of this Court in _**Mony @ Suresh Kumar & Others v. State of Kerala** [2010 (1) KHC 498]_ . It was held that the statement of the wife to the prosecution witness while she was alive would not fall under Section 32(1) of the Evidence Act so as to become admissible since the cause of death does not come up for consideration in prosecution under Section 498A of IPC. Thus, the evidence of PW2 to PW5 cannot be looked into for any purpose. Even though the prosecution examined one of the neighbours as PW6 and son of the accused as PW7, they did not support the prosecution case. Ext.P7 postmortem certificate coupled with the evidence of PW13 shows that there was no injury on the body of the deceased to suggest that there was any physical assault just prior to the death. It has also come out in evidence that the deceased was very much conscious Crl.A.No.1155/2008 -:11:- when she was at hospital. Still no dying declaration was recorded. In the light of the above findings, I am of the view that the prosecution has miserably failed to prove beyond reasonable doubt that the accused has committed the offence under Section 498A of IPC. The conviction and sentence passed by the court below accordingly are set aside. The accused is found not guilty for the offence under Section 498A of IPC and he is acquitted for the said offence. His bail bond is cancelled. The appeal is allowed as above. Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **kp True copy** P.A. To Judge