Manikandan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020/13TH KARTHIKA, 1942** **Crl.Rev.Pet.No.2535 OF 2005** **AGAINST THE JUDGMENT IN CRA 156/2000 DATED 22-06-2005 OF ADDITIONAL SESSIONS COURT FAST TRACK-I , PALAKKAD** **SC 55/1997 DATED 01-08-2000 OF ASSISTANT SESSIONS COURT, PALAKKAD DIVISION AT OTTAPPALAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MANIKANDAN, S/O.GOPALAN, NEERENGIL HOUSE, PERUMANGODE, SREEKRISHNAPURAM.** **BY ADVS. SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, CHERPLACHERRY POLICE STATON, PALAKKAD DISTRICT, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-10-2020, THE COURT ON 04-11-2020 PASSED THE FOLLOWING:** Crl.R.P.No.2535 of 2005 ..2.. ## **ORDER** Dated this the 04[th] day of November, 2020 The revision petitioner was the accused in S.C.No.55/1997 on the file of the Assistant Sessions Court, Ottapalam and the appellant in Crl.Appeal No.156/2000 on the file of the Additional Sessions Judge, Fast Track Court-I, Palakkad. 2. The above case was originally registered as Crime No.128/93 of the Sreekrishnapuram Police Station, Palakkad under the caption 'unnatural death'. After completing the investigation, the Circle Inspector of Police, Cherplassery filed final report before the Judicial First Class Magistrate Court, Ottapalam for the offence under Section 498A of the IPC against the accused. 3. After filing the final report as stated above, the de facto complainant filed a private complaint as C.M.P.No.619/94 before the Judicial First Class Magistrate Crl.R.P.No.2535 of 2005 **==> picture [22 x 8] intentionally omitted <==** Court, Ottapalam alleging that the accused had murdered his daughter. The learned Magistrate forwarded the complaint to the Dy.S.P., CBCID, Palakkad for investigation. Thereupon, the Dy.S.P., CBCID filed a report before the court stating that he had no jurisdiction to investigate the case. In the meantime, the de facto complainant filed O.P.No.731/96 before this Court. This Court directed the Dy.S.P., CBCID, Palakkad to investigate the case. Thereafter, the Dy.S.P., CBCID re-investigated the case and filed a final report alleging that the accused had committed the offences punishable under Sections 498A and 306 of the IPC. 4. However, on receipt of the final report under Section 498A of the IPC, the learned Magistrate took cognizance of the offence under Section 498A of the IPC against the accused and issued summons to him. During the pendency of the said proceedings, this Court directed Crl.R.P.No.2535 of 2005 **==> picture [22 x 8] intentionally omitted <==** the Judicial First Class Magistrate Court, Ottapalam to treat C.C.No.295/94 relating to the offence punishable under Section 498A of the IPC and C.P.No.9/96 relating to the offences punishable under Sections 306 and 498A of the IPC charge-sheeted by the Dy.S.P., CBCID, Palakkad as one and the same and to commit both cases to the Sessions Court. Accordingly, the learned Magistrate committed C.C.No.295/94 and C.P.No.9/96 together to the Sessions Court as directed in O.P.No.731/96 by this Court. 5. The prosecution case in brief is hereinbelow:- An eighteen year old teenaged woman allegedly committed suicide as she was not able to bear the alleged torture inflicted upon her by her husband. The deceased, identified as Vasanthakumari married the accused around 48 days prior to the incident. The couple was living at the matrimonial home. As per the complaint filed by Vasanthakumari's father, Kunhunni on 16.10.1993 Crl.R.P.No.2535 of 2005 **==> picture [22 x 8] intentionally omitted <==** at 11 am he received reliable information from one Chandran who informed him that his daughter had a fall at the matrimonial home and she was taken to the hospital immediately. Following this, PW1 went to the police station and lodged Ext.P1 First Information Statement before PW10. PW1 claimed that the accused abused and tortured his daughter owing to which his daughter resorted to the extreme steps and ended her life on 16.10.93 by hanging herself from the house of the accused. 6. The learned Sessions Judge, Palakkad took cognizance under Sections 498A and 306 of the IPC and made over the case to the Assistant Sessions Court, Ottapalam for trial and disposal. On the appearance of the accused, after having heard both sides, the learned Sessions Judge framed charge against the accused under Sections 498A and 306 of the IPC. Crl.R.P.No.2535 of 2005 ..6.. 7. When the case came up for evidence PWs.1 to 15 were examined and marked Exts.P1 to P10 and MOs.1 to 7 on prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. However, no defence evidence was adduced. 8. By judgment dated 01.08.2000, the learned Assistant Sessions Judge found the accused guilty of the offences punishable under Sections 498A and 306 of the IPC and sentenced him to undergo rigorous imprisonment for two years for the offence under Section 498A of the IPC and rigorous imprisonment for three years for the offence under Section 306 of the IPC. The above sentences were ordered to run concurrently. Being aggrieved by the conviction and sentence, the accused preferred Criminal Appeal No.156/2000 before the Crl.R.P.No.2535 of 2005 **==> picture [22 x 8] intentionally omitted <==** Sessions Court, Palakkad. The learned Additional Sessions Judge, Fast Track Court-I, Palakkad dismissed the appeal confirming the conviction and sentence imposed by the trial court. 9. Heard the learned counsel for the revision petitioner/accused and the learned Senior Public Prosecutor for the respondent-State. 10. The learned counsel for the revision petitioner/accused submitted that the conviction as recorded by the trial court and confirmed by the Sessions Court is unsustainable. It is submitted that the conviction is mainly based on the evidence of PWs.1 to 3 who are closely related. It is further submitted that there is no corroboration to the said evidence. 11. Per contra, the learned Senior Public Prosecutor appearing on behalf of the State submitted that in so far as conviction under Section 498A of the IPC is concerned, Crl.R.P.No.2535 of 2005 ..8.. no interference is warranted to set aside concurrent findings of facts arrived at by the two courts below. It is further submitted that the ingredients necessary for the conviction under Section 306 of the IPC with the aid of Section 113A of the Indian Evidence Act, 1872 were duly proved by the prosecution and as such interference is not warranted in this revision. 12. The question which arising for consideration in this case is as to whether the conviction as confirmed by the Sessions Court under Section 498A and 306 of the IPC is sustainable. In this connection it is relevant to note the following provisions under the Indian Penal Code and the Indian Evidence Act:- Section 107 of the IPC :- ## _“_ _**Abetment of a thing** .—_ _A person abets the doing of a thing, who—_ _First.-Instigates any person to do that thing; or_ Crl.R.P.No.2535 of 2005 ..9.. _Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or_ _Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing._ _Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing._ _Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”_ ## Section 306 of the IPC:- _“_ _**Abetment of suicide** .—If any person commits suicide, whoever abets the_ Crl.R.P.No.2535 of 2005 ..10.. _commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”_ ## Section 498A of the IPC:- _“_ _**Husband or relative of husband of a** —_ _**woman subjecting her to cruelty.** Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine._ _Explanation.—For the purpose of this section, “cruelty” means—_ _(a) 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; or_ _(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any_ Crl.R.P.No.2535 of 2005 ..11.. _unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”_ ## Section 113A of the Indian Evidence Act, 1872:- _**“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 by her husband 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._ _Explanation.—For the purposes of this section, “Cruelty” shall have the same meaning as in section 498A of the Indian_ Crl.R.P.No.2535 of 2005 ..12.. _Penal Code, 1860 (45 of 1860).”_ 13. PW1 is the father of the deceased. PW2 is the mother of the deceased. On a perusal of the evidence of PWs.1 and 2 it is clear that the deceased Vasanthakumari was married to the accused on 29.8.1993. They stated that after the marriage, their daughter was residing along with the accused at his residence. According to them, after the marriage the accused was harassing their daughter claiming more dowry. The accused during the quarrel with his wife stated to have remarked 'to the deceased to go and die'. It is stated that at the time of the marriage, the accused promised them to believe that he had a hotel business at Coimbatore. The deceased, Vasanthakumari came to know after her marriage that the accused was not having any employment. According to them, the accused pledged gold ornaments of Vasanthakumari one after the other and out of the Crl.R.P.No.2535 of 2005 **==> picture [28 x 8] intentionally omitted <==** consideration, consumed liquor and used to manhandle her. About two weeks prior to the incident, PW3 Pushpa, the cousin sister of Vasanthakumari visited the house of the accused and stayed for one day. While so, PW3 had an occasion to see the inhuman act of the accused towards his wife after consuming liquor. She would say that his wife was beaten up by him all over her body. PW3 had direct knowledge about the incident. The evidence tendered by PWs.1 and 2 is corroborated by the evidence of PW3 as well. While so, PW1 received an information on 16.10.1993 that Vasanthakumari fell down from her husband's house and she was taken to Sreekrishnapuram Hospital. 14. PW15 the Medical Officer attached to the Primary Health Centre, Sreekrishnapuram examined the deceased on 16.10.1993 at about 10.15 am. and issued Ext.P10 certificate as brought dead. Crl.R.P.No.2535 of 2005 ..14.. 15. PW9 conducted autopsy on the body of the deceased and confirmed by way of Ext.P7 postmortem report that the deceased committed suicide by hanging. Ext.P9 is the report of the Scientific Assistant, Forensic Science Laboratory, Thiruvananthapuram. Ext.P9 would reveal that the impressions taken from the right and left hands of the body of the deceased contain fibers similar to those found in the lunki which was seized as per Ext.P4 mahazar. 16. It has come out in evidence that prior to the occurrence there was dispute between the accused and deceased in connection with demand for dowry. The accused was a drunkard. He had also abused and beaten up the deceased before her death. From the evidence of PWs.1 to 3, 9, 15 and Exts.P7 and P9, this Court has no hesitation to hold that the deceased was harassed with a view to coercing her or any person related to her to meet Crl.R.P.No.2535 of 2005 **==> picture [28 x 8] intentionally omitted <==** any unlawful demand for any property or valuable security or such harassment was on account of failure by her or any person related to her to meet such demand. Thus, this Court finds that on the basis of the evidence, the prosecution has proved charge under Explanation (b) of Section 498A of the IPC. 17. The next question which would fall for consideration is as to whether the prosecution establishes “cruelty” under Explanation (b) of Section 498A of the IPC and also establishes that the deceased committed suicide within seven years of marriage under Section 306 of the IPC with the aid of Section 113A of the Indian Evidence Act. 18. When PW1 was examined before court he stated that the accused told the deceased to go and die several times. PW2 repeated the version of PW1. In the case on hand, it is proved that the deceased had committed Crl.R.P.No.2535 of 2005 **==> picture [28 x 8] intentionally omitted <==** suicide and that such suicide had been committed within a period of seven years from the date of her marriage. To attract Section 113A of the Indian Evidence Act, it is the duty of the prosecution to prove that the husband or relative of her husband who were charged had subjected her to cruelty over and above the ingredients cited above. On the existence and availability of the aforesaid three circumstances, the court is entitled to presume that such suicide had been abetted by the accused or by such relative of the accused. The presumption is not mandatory. Consideration of all other circumstances of the case is required to strengthen the presumption. It is necessary on the part of the prosecution to prove the nexus between the cruelty and suicide for the purpose of raising a presumption. 19. In **Swamy Prahaladdas v. State of M.P. (1995 Supp. SCC (3) 438)** the Apex Court held as follows:- _“In the first place it is difficult, in the facts_ Crl.R.P.No.2535 of 2005 ..17.. _and circumstances, to come to even a prima facie view that what was uttered by the appellant was enough to instigate the deceased to commit suicide. Those words are casual in nature which are often employed in the heat of the moment between quarrelling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite mens rea on the assumption that these words would be carried out in all events. Besides the deceased had plenty of time to weigh the pros and cons of the act by which he ultimately ended his life. It cannot be said that the suicide by the deceased was the direct result of the words uttered by the appellant.”_ ## 20. In **Sanju** @ **Sanjay Singh Sengar v. State of Madhya Pradesh (AIR 2002 SC 1998)** the Apex Court ## held as follows:- _“Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate'_ Crl.R.P.No.2535 of 2005 **==> picture [28 x 8] intentionally omitted <==** _denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional.”_ 21. Mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of the accused that led a person to commit suicide, a conviction in terms of Section 306 of the IPC is not sustainable. A casual remark such as “you go and die” will not come within the purview of instigation as defined under Section 107 of the IPC. The term “instigation” defined by the Apex Court in **Ramesh Kumar v. State of Chhattisgarh [AIR 2001 SC 3837]** is as follows:- _“Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation_ Crl.R.P.No.2535 of 2005 ..19.. _though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”_ 22. There was no direct evidence to establish that the accused either aided or instigated the deceased to commit suicide or entered into conspiracy to aid her in committing suicide. Therefore, on analysing the materials on record in this case, by applying the laws settled by the Apex Court, it cannot be presumed that the accused Crl.R.P.No.2535 of 2005 **==> picture [28 x 8] intentionally omitted <==** scolded the deceased with an intention to abet the commission of suicide. ## 23. In **Ramesh Kumar's case** (supra) the Apex Court further held as follows:- _“Section 498A and Section 306 of the IPC are independent and constitute different offences. Though depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498A of the IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned.”_ Crl.R.P.No.2535 of 2005 ..21.. 24. Judged by the above standards, this Court is of the view that there is no evidence on record to infer that the accused abetted the deceased to commit suicide. The totality of the evidence adduced in this case would inter alia show that the presumption under Section 113A of the Evidence Act cannot be drawn in this case merely because the accused was found guilty of the offence under Section 498A of the IPC. The criminal revision petition is partly allowed. By maintaining the conviction and sentence passed under Section 498A of the IPC, the conviction against the revision petitioner/accused under Section 306 of the IPC and the sentence passed thereon are set aside. The bail bond of the accused stands cancelled. The accused is directed to surrender before the trial court on **10.12.2020** to undergo the sentence. Sd/- **N.ANIL KUMAR, JUDGE** skj