PARAMBAN MUHAMMED v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 27TH DAY OF MARCH 2013/6TH CHAITHRA 1935** **Crl.Rev.Pet.No. 828 of 2002 (B)** **------------------------------------------[CRL.A.NO.90/1996 DTD. 10/06/2002 OF THE SESSIONS COURT, MANJERI, S.C.NO.28/1994 OF THE ASSISTANT SESSIONS COURT, MANJERI DATED 27/07/1996]** **........** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **PARAMBAN MUHAMMED, S/O. ALIKUTTY, OORANGATTIRI AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** **BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADV. SRI.P.M.RAFIQ.** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI. ROY THOMAS.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 828 of 2002 - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of March, 2013. ## **Order** Faced with the concurrent findings of guilt against him, the accused has approached this court by way of revision. The accused was prosecuted for the offence punishable under Sections 498A and 304B of Indian Penal Code. He was found guilty on both counts and was convicted and sentenced to suffer rigorous imprisonment for three years for the offence under Section 498A of I.P.C. and to suffer rigorous imprisonment for seven years for the offence under Section 304B of I.P.C.. The sentences were directed to run concurrently. In appeal, the said conviction and sentence were confirmed by the appellate court. 2. The facts absolutely necessary for the disposal of this revision petition are as follows: The deceased Mariyakutty was married to the son of the accused in this case in some day in April, 1992. It is not disputed that Mariyakutty was found hanging from a 2 Crl.R.P.828/2002. cashew tree on 1.10.1992. The prosecution allegation seems to be that Mariyakutty was driven to take the extreme step due to the harassment meted out by the accused who persistently demanded the balance dowry from the parents of the deceased and he used to pester and harass Mariyakutty with the demand. 3. Ext.P5 is the First Information Statement laid relating to the suicide of Mariyakutty and Ext.P5(a) is the FIR. Initially the crime was registered only for unnatural death. During investigation, it was revealed that Mariyakutty was driven to commit suicide due to the dowry demand made by the accused. Thereafter Section 498A and Section 304B were incorporated. P.W.12 is the Investigating Officer who had laid charge before court. 4. The court before which final report was laid took cognizance of the offence and finding that the case is one exclusively triable by a court of Sessions, committed the case to Sessions Court, Manjeri, which court made over 3 the case to Assistant Sessions Court, Manjeri for trial and disposal. The latter court, on receipt of records and on appearance of the accused before the said court, framed charge for the offence under Sections 498A and 304B of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 13 examined and had Exts.P1 to P6 marked. M.Os. 1 to 8 were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He has stated that it was revealed that at the time of death of Mariyakutty, she was carrying a foetus which was 5 to 8 months old and that would mean that she had conceived before the marriage in April, 1992 and when Mariyakutty came to know that her husband had doubts about her, she committed suicide. On finding that the accused could not be acquitted under Crl.R.P.828/2002. 4 Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence. 5. The court below found the evidence of P.Ws. 1, 2, 3, 4 and 7 to be sufficient and came to the conclusion that there was consistent and persistent demand for balance dowry by the accused and he used to harass the deceased demanding the balance dowry, and that made her life miserable. Accordingly, both the courts below found that it was the said demand made by the accused which led Mariyakutty to commit suicide and accordingly he was found guilty of the offences. 6. Learned counsel for the revision petitioner pointed out that the court below has omitted to note the contradictions, inconsistencies, embellishments and developments in the evidence of P.Ws.1 to 4 and 7 and which, if properly appreciated, it would have been found that it was not safe to accept the evidence in favour of the prosecution. Learned counsel pointed out that when such Crl.R.P.828/2002. 5 glaring inconsistencies and contradictions are pointed out, the evidence of such witnesses are unworthy of acceptance. In support of his contention, learned counsel relied on the decisions reported in **Nepal Singh v. State of Haryana** ((2009) 12 SCC 351) and **Sunil Kumar Sambhudayal Gupta v. State of Maharashtra** ((2010) 13 SCC 657). This aspect has been omitted to be noticed by the court below and the courts below have blindly accepted the evidence of P.Ws.1 to 4 and 7 and the conviction based on such suspicious evidence cannot be accepted. Further, it was contended that mere demand for dowry is not sufficient. It must be followed by cruelty which is conspicuously absent in the case on hand and since no overt act is attributed to the petitioner, it would show that he had not treated the deceased cruelly. In support of the above contention, learned counsel relied on the decision reported in **Amar Singh v. State of Rajasthan** ((2010) 9 SCC 64). In short, Crl.R.P.828/2002. 6 the contention is that the conviction and sentence cannot stand. 7. Learned Public Prosecutor reminded this court and pointed out that this court is sitting in revision where the scope of interference is considerably limited. A reappraisal of the evidence is not warranted while exercising revisional jurisdiction and the issue that arises is only whether there is any illegality, irregularity or impropriety in the findings of the courts below or whether the findings are so perverse which would attract interference. If the findings of the courts below are possible ones, and based on an appreciation of the evidence, even if another view may be possible, this court will not be justified in interfering with the findings of the courts below. Learned Public Prosecutor also referred to the evidence of P.Ws.1 to 4 and 7 and pointed out that their evidence is sufficient to show that there has been consistent and persistent demand for balance dowry by the accused and that the deceased used to be harassed 7 Crl.R.P.828/2002. and humiliated by such demands. The concurrent findings based on appreciation of the evidence do not call for any interference. Therefore, it is contended that the conviction and sentence has to stand. 8. The evidence regarding the so-called cruelty and demand for dowry is spoken to by P.Ws.1 to 4 and 7. Among them, P.W.4's evidence shows that he has knowledge about what his wife had told him. Of course, there are certain contradictions and inconsistencies in his evidence which would make his evidence suspicious. But there are certain parts of his evidence which would show that he had knowledge about the demand made by the accused for the balance amount. 9. P.Ws.1 and 2 have spoken about the specific demand made by the accused regarding the balance dowry. It is true that there are some inconsistencies in their evidence also. But however, those inconsistencies are regarding insignificant matters and not about the crux of the Crl.R.P.828/2002. 8 matters which is that the accused used to demand balance amount of Rs.7000/- and he used to harass the deceased. It is significant to notice that even though P.Ws.1 to 4 and 7 have stated in their chief examination that there was a demand by the accused for the balance amount of Rs.7000/-, there is no suggestion that the said statement spoken to them is not true and there was no such demand by the accused. In other words, the statement made by the witnesses that the accused used to harass the deceased by demanding balance amount of Rs.7000/- as promised by the parents of the deceased is not seriously challenged or impeached in their cross examination. That portion of their evidence stands unchallenged. There is no reason for not to accept the said version. In the light of the said fact, the principle laid down in the decision reported in **Nepal Singh's case** (supra)and also S **unil Kumar Sambhudayal Gupta's case** (supra) cannot have any application to the facts of this case. Crl.R.P.828/2002. 9 10. Even otherwise, the principle _falsus in uno, falsus in omnibus_ is not applicable in India. Even assuming that there are some embellishments and developments and there are inconsistencies and contradictions while giving evidence, it cannot be a ground to reject their evidence in toto. It is also significant to note that the inconsistencies and contradictions are with regard to the answers brought in cross examination and not with what is spoken to in chief examination. 11. As regards the contention that mere demand for balance dowry is not sufficient unless there is evidence of cruelty, the evidence of P.Ws.2 and 7 are sufficient to show that Mariyakutty, the deceased, used to complain about the conduct of the accused because of non-payment of balance amount. P.W.7 is none other than the brother of the deceased. He would say that Mariyakutty was taken back to the house by him and the accused came to call the deceased. It is significant to notice that he would depose Crl.R.P.828/2002. 10 that while taking back the deceased to the house, the accused demanded that when P.W.1 and others come to take Mariyakutty for delivery, they should pay the balance amount. It is also pointed out by P.W.7 that deceased Mariyakutty was not taken to the house of her husband, but to the house where the accused was living even though the house belonging to the husband was lying vacant. 12. On an over all consideration of the materials before it, the courts below came to the conclusion that Mariyakutty was driven to commit suicide due to the harassment meted out by the accused demanding balance amount promised as dowry to him. 13. It will be only appropriate here to refer to the definition of dowry in the Dowry Prohibition Act, 1961 which is made applicable to Section 304B of I.P.C.. It reads as follows: “2. **Definition of 'dowry** '.- In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly- Crl.R.P.828/2002. 11 (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation II.- The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).” Going by the definition, it is clear that the demand made for balance amount attracts the provisions of Section 304B of I.P.C. 14. As rightly pointed out by the learned Public Prosecutor, the finding of the courts below that Mariyakutty was driven to commit suicide because of the demand for the balance amount promised at the time of marriage as dowry and that she was being harassed is a concurrent finding of 12 Crl.R.P.828/2002. fact based on appreciation of the evidence and there is nothing to show that the findings are either perverse or contrary to the evidence on record. At any rate, the views taken by the courts below are possible views. If that be so, no grounds are made out to interfere with the finding of the courts below. 15. Coming to the sentence, Section 304B I.P.C. provides for a minimum punishment and since the minimum punishment alone had been awarded, question of interfering with the sentence also does not arise for consideration. The result is that this revision petition is dismissed confirming the conviction and sentence passed by the trial court as confirmed by the appellate court. P. BHAVADASAN, JUDGE sb.