PRASANNAKUMAR and THANKAMMA v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **FRIDAY, THE 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939** **CRL.A.No. 159 of 2011 ( )** **-------------------------SC 52/2010 of II ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE FOR NDPS ACT CASES, THODUPUZHA DATED 29-01-2011** **-------------------** **APPELLANT(S)/ACCUSED NOS 1 & 2 :-** **------------------------------** **1. PRASANNAKUMAR, S/O.BALAYYA, KOCHOZHATHIL HOUSE, MOOZHIKAL KARA, MLAPPARA VILLAGE.** **2. THANKAMMA, W/O.BALAYYA, KOCHOZHATHIL HOUSE, MOOZHIKAL KARA, MLAPPARA VILLAGE.** **BY ADVS.SRI.C.M.TOMY SRI.K.J.JOSEMON SRI.MATHEW SKARIA** **RESPONDENT(S)/COMPLAINANT :-** **--------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.8.2017, THE COURT ON 10-11-2017, DELIVERED THE FOLLOWING:** ## **P.UBAID, J. -----------------------------------------Crl.A. No.159 of 2011 --------------------------------------------------Dated this the 10[th] day of November 2017** ## **J U D G M E N T** The appellants herein are the accused Nos.1 and 2 in S.C.No.52/2010 of the Court of Sessions, Thodupuzha. They faced prosecution in the court below on a charge under Section 304B IPC, along with the 3[rd] accused. 2. The appellants are son and mother. The 3[rd] accused is the brother of the 1[st] accused. This case relates to the commission of suicide by the wife of the 1[st] accused. She was married by him on 20.12.2004, and a child was born in the wedlock. After the marriage, they lived along with the mother, but later, they shifted to a house of their own, after the birth of the child. At about 7 a.m. on 11.2.2009, the wife of the 1[st] accused (Kavitha) burnt herself, and at about 12.30 a.m. on 12.2.2009 she died at the hospital due to extensive burn injuries. Before death, her statement was recorded by a Judicial First Class Magistrate. At about 7.30 p.m. her father made a complaint before the police, alleging matrimonial cruelty by her husband and the in-laws. On the basis of the said complaint, the Crl.A. No.159 of 2011 -: 2 :- police registered F.I.R. under Section 498A IPC. After the death of Kavitha, the police directed investigation into the various aspects including the allegation of demand for dowry made by the husband and the in-laws. During investigation, the police detected, that Kavitha had been subjected to much mental and physical torture by her husband, her mother-in-law and the brother-in-law by demanding more dowry and ornaments, and otherwise, and that Kavitha committed suicide when she felt things unbearable, and when she felt it really impossible to live with her husband and the in-laws. Accordingly, the police submitted final report under Section 304B IPC before the Judicial First Class Magistrate Court-II, Peerumade. After completing the procedural formalities, the learned Magistrate committed the case to the Court of Sessions, Thodupuzha. The case later come up before the learned IInd Additional Sessions Judge, Thodupuzha for trial and disposal. 3. The three accused appeared before the trial court and pleaded not guilty to the charge framed against them under Section 304B IPC. The prosecution examined 16 witnesses and proved Exts.P1 to P11 documents in the trial court. MO1 to Crl.A. No.159 of 2011 -: 3 :- MO4 properties were also identified during trial. When examined under Section 313 Cr.P.C., the accused projected a defence that deceased Kavitha had some mental problems, that she had been quarrelsome, that she had never been harassed or ill-treated by them in any manner, and that it was Kavitha's mental illness that led to the commission of suicide. In defence, the accused examined two witnesses, and also proved Exts.D1 to D6 documents. 4. On an appreciation of the evidence, the trial court found the 3[rd] accused not guilty of any offence, and accordingly, he was acquitted. But the trial court found the 1[st] accused guilty of the offence under Section 304B IPC and the 2[nd] accused guilty under Section 498A IPC. Though charge was framed against both under Section 304B IPC, the trial court did not find the elements or essentials of such an offence against the mother-inlaw. Accepting the other evidence proving mental harassment made by the mother-in-law, the trial court found her guilty only under Section 498A IPC. On conviction, the 1[st] accused was sentenced to undergo rigorous imprisonment for seven years under Section 304B IPC, and the 2[nd] accused was sentenced to Crl.A. No.159 of 2011 -: 4 :- undergo rigorous imprisonment for two years, and also to pay a fine of `5,000/- under Section 498A IPC, by judgment dated 29.1.2011. Aggrieved by the judgment of conviction, the accused Nos.1 and 2 have come up in appeal. 5. When this appeal came up for hearing, the learned counsel for the appellants submitted that the 2[nd] accused was wrongly convicted by the trial court without a definite charge under Section 498A IPC, and for such a conviction, there is absolutely no satisfactory evidence. As regards the 1[st] accused, the learned counsel submitted that there is absolutely no evidence to show that the deceased had been subjected to cruelty or harassment on a demand for dowry soon before her death, and so, the conviction under Section 304B IPC cannot be legally sustained. When this Court asked the learned counsel whether the essential elements of the offence under Section 306 IPC are there in evidence, the learned counsel submitted that such a conviction is not possible without an alternative charge under Section 306 IPC. On the other hand, the learned Public Prosecutor submitted that when definite materials and evidence are there for a conviction under Section 306 IPC, that Crl.A. No.159 of 2011 -: 5 :- commission of suicide of Kavitha was abetted by the accused, such a conviction is possible, though the essentials for the offence under Section 304B IPC are not there, because, the basic features and essentials of the two sections are practically the same, that the victim had been subjected to mental or physical harassment, and this harassment led to the commission of suicide. 6. Of the 16 witnesses examined at the trial court, Pws.1 and 2 are the parents of the deceased and PW3 is her brother. PW4 is the brother-in-law of PW1. He is only a witness to Ext.P2 inquest. Though he has also given evidence regarding the statements made to him by the victim on some occasions, his versions are not definite. However, his evidence would show that Kavitha had some problems at her matrimonial home. 7. PW5 is only an attestor to the Ext.P3 scene mahazar. PWs.6 and 7 are the doctors, who treated the deceased at the hospital, and PW8 is the doctor, who conducted postmortem examination on the body of the deceased. PW9 is the Village Officer, who prepared the Ext.P7 scene plan, PW10 is the witness examined to prove the Ext.P8 marriage certificate, Crl.A. No.159 of 2011 -: 6 :- PW11 is the Secretary of the Panchayat examined to prove the Ext.P9 ownership certificate relating to the house where Kavitha committed suicide, PW13 is the Assistant Sub Inspector of Police, who registered the FIR, PW14 is the Judicial First Class Magistrate, who recorded the Ext.P11 dying declaration of the deceased, PW15 is the Deputy Superintendent of Police, who investigated the case, and PW16 is the Circle Inspector of Police, who initially investigated the case. DW1 examined on the side of the defence is a mediator, who had intervened in the matrimonial dispute between the deceased and the 1[st] accused, and DW2 is the Sub Inspector of Police examined to prove that the 1[st] accused had made a complaint against his wife. 8. The main evidence is that of PWs.1 to 3 and PW11. Of course, the prosecution has adduced evidence to prove the marriage of the 1[st] accused and the deceased, and also to prove the ownership of the house, where the incident happened. The defence has no dispute regarding the marital status of the deceased and the 1[st] accused, and there is also no dispute regarding the place or the house, where Kavitha committed suicide. The crucial question is whether Kavitha had been Crl.A. No.159 of 2011 -: 7 :- subjected to mental or physical harassment for, or in connection with dowry or otherwise, and whether Kavitha committed suicide due to such acts of cruelty at the hands of her husband or the in-laws. The witnesses examined to prove the factual aspects are PWs.1 and 2. Just because they are the close relatives of the deceased, their evidence cannot be rejected, if it is otherwise believable and acceptable. 9. Though the prosecution alleged the offence under Section 304B IPC against both the accused, the court below found the 2[nd] accused guilty only under Section 498A IPC. Of course, it is true that the evidence given by PWs.1 to 3 is on the basis of the statements earlier made by the deceased to them regarding her miseries in life, or the unfortunate situation she had faced at the matrimonial home. When there is the statement of the deceased herself, recorded by the learned Magistrate, and having the value and sanctity under Section 32 of the Evidence Act, the court will have to rely on the said statement. The evidence given by PWs.1 to 3 will convincingly show that the deceased had a genuine grievance that she had no peace and happiness in her matrimonial life. She had often Crl.A. No.159 of 2011 -: 8 :- complained about the mental and physical torture made by her husband. All the three witnesses are definite and consistent that the deceased had very often complained that she had been mentally and physically harassed by her husband, for one reason or the other. However, I find nothing definite in their evidence as against the 2[nd] accused. Prominently and practically the evidence given by PWs.1 to 3 is regarding the statements and complaints made by the deceased to them about her husband. In the Ext.P11 statement given by the victim also, the statements and allegations are prominently against her husband. There is nothing to show that the mother had at any time, mentally or physically ill-treated the deceased by any positive act. Things are not clear and specific as to how exactly the mother prompted her son to torture or harass his wife. Of course, something that may always happened in every household must have occurred at the hands of the 2[nd] accused also as a mother-in-law. In the absence of definite evidence or materials to prove torture, mentally or physically, she cannot be convicted under Section 498A IPC, especially, when the court has not framed a charge under the said section. For a conviction under Section 498A Crl.A. No.159 of 2011 -: 9 :- IPC, there must be clear and definite evidence by way of positive acts or circumstances proving mental or physical harassment by a course of cruel conduct. Some abusive words once or twice, or some provoking words once or twice, will not be sufficient for a conviction under Section 498A IPC. I find that the complaints and grievances of the deceased stated by her in the Ext.P11 dying declaration are prominently against her husband, and as against the mother-in-law, there is no serious allegation. When the deceased herself has no definite allegation or grievance against her mother-in-law, except something casual, which may not be sufficient for a conviction under Section 498A IPC, the statements given by the parents and the brother of the deceased about the statements made to them by the deceased against the mother-in-law cannot be accepted. Thus, I find that there is no clear and definite evidence against the mother-in-law for a conviction under Section 498A IPC. In the above circumstances, I find that the conviction and sentence against the 2[nd] accused under Section 498A IPC is liable to be set aside, and she is entitled to be acquitted. Crl.A. No.159 of 2011 -: 10 :- 10. But the position of the 1[st] accused is quite different. There are clear materials and evidence as against him. PW14 is the Judicial First Class Magistrate, who recorded the Ext.P11 statement. His evidence shows that the statement was truly and legally recorded by him. The court below has extracted the statements given by the victim, in paragraph 16 of the judgment. These statements given by the victim would suggest the cause of death, or why she decided to burn herself to death. The said statement of the deceased shows that on many occasions her husband had made demand for more ornaments. But, there is nothing in the statement to show that such demands were made soon before the death. The Ext.P11 statement recorded by the learned Magistrate contains the grievances of the victim that she had been mentally harassed much by her husband by demanding more ornaments, and even otherwise, and he would often say that she is insane. Her statement shows that she had to suffer much harassment at the hands of her husband, and she thought of putting an end to her life when she lost all hopes in her life. The Ext.P11 statement shows that the deceased had only miseries in her matrimonial life, and that she decided to put Crl.A. No.159 of 2011 -: 11 :- an end to her life when she felt that a happy life with her husband was not possible at all. The statement will suggest the cause of death, and also that commission of suicide was abetted by the 1[st] accused by his extreme acts of cruelty with the full knowledge of consequence that no woman can bear such extreme acts of cruelty, and that in such extreme circumstances, a wife may think of committing suicide. Thus, I find clear elements of the offence under Section 306 IPC in the statements given by the victim to the learned Magistrate. At the same time, I find nothing definite for the offence under Section 304B IPC in the said statement. 11. Of course, it is true that PWs.1 to 3 have given evidence that the deceased had very often stated to them about the demands made by the accused for more dowry and ornaments. But, there is nothing in their evidence to show that such demands were made soon before the death. For a conviction under Section 304B IPC, there must be evidence to show that the deceased had been subjected to mental or physical harassment by demand for dowry and ornaments, and the said demand was made by the accused even soon before the death. Crl.A. No.159 of 2011 -: 12 :- Thus, the essential requirement under Section 304B IPC is the mental or physical harassment made by the husband, or the inlaws for, or in connection with demand for more dowry and ornaments, and it must have been made soon before the death. But, in the evidence given by PWs.1 to 3, or in the Ext.P11 statement given by the victim to the learned Magistrate, I do not find that essential element of Section 304B IPC. So, I find that the conviction in this case under Section 304B IPC cannot be sustained. 12. Now, the question is whether the 1[st] accused can be convicted under Section 306 IPC. In this case, I find clear evidence proving the prosecution allegation that the deceased had been mentally and physically harassed by the 1[st] accused. Such things are well and definitely revealed by the Ext.P11 statement given by the victim to the learned Magistrate. When such essentials are there in the prosecution evidence to constitute the offence under Section 306 IPC, the court can very well convict the 1[st] accused under Section 306 IPC, though there is no specific charge under Section 306 IPC, because, basically the two offences are the same. Crl.A. No.159 of 2011 -: 13 :- 13. There is a presumption under Section 113A of the Evidence Act that in a case where there is evidence to prove that a wife committed suicide within seven years from the date of marriage, and that she had been subjected to mental or physical harassment by her husband or the in-laws, the court shall presume that commission of suicide was abetted by the husband or the in-laws. The presumption under Section 113B of the Evidence Act is as regards the offence under Section 304B IPC. When the essentials of the said offence are not there in this case, the said presumption need not be discussed. In a case where the wife committed suicide within seven years from the date of marriage, and there is clear and convincing evidence to prove that she had been mentally and physically harassed by her husband or the in-laws during the period of seven years, the court will have to presume that commission of suicide by the wife was abetted by the husband or the in-laws, against whom there is clear evidence of mental or physical cruelty. Of course, in this case, there is such evidence only as against the 1[st] accused. There is no dispute regarding the fact that Kavitha committed suicide within seven years from the date of her Crl.A. No.159 of 2011 -: 14 :- marriage. Her marriage with the 1[st] accused was in 2004, and Kavitha committed suicide in 2009. 14. In an identical case, where the conviction under Section 304B IPC was altered to one under Section 306 IPC by the Rajasthan High Court, the Hon'ble Supreme Court upheld it and held that in such a circumstance, where the essentials under Section 306 IPC are proved, such an alteration is legally possible. The Hon'ble Supreme Court held so in **State of Rajasthan** v. **Giridhari Lal** in Crl.A.No.1186/2008 (citation not available). The said case was decided on 7.10.2013. 15. Just because, there is no specific charge under Section 306 IPC, the accused cannot escape, when there is clear evidence proving the offence under Section 306 IPC. When the basic essentials of the two offences are the same, that the death occurred within seven years from the date of marriage, that the death was not a natural death, that the deceased had been subjected to mental and physical harassment by a course of cruel conduct as meant and defined under Section 498A IPC, the conviction can very well be altered to one under Section 306 IPC, in view of the presumption under Section 113A of the Crl.A. No.159 of 2011 -: 15 :- Evidence Act. Thus, I find that the conviction against the 1[st] appellant under Section 304B IPC will have to be altered to one under Section 306 IPC. 16. The case was investigated by PW16 initially, and it was taken over later by PW15. I find that there was no flaw or illegality or irregularity in the investigation conducted by them. I find that the prosecution has well proved a case under Section 306 IPC, though the conviction under Section 304B IPC cannot be sustained. Thus, the 1[st] accused is liable for conviction under Section 306 IPC. 17. Now, the question of sentence. The minimum sentence prescribed under Section 304B IPC is imprisonment for seven years. The court below imposed a sentence of seven years under Section 304B IPC. When the said conviction is being altered to one under Section 306 IPC, the court can use the discretion in the matter of sentence. The law does not prescribe any minimum sentence under Section 306 IPC. On a consideration of the various aspects and circumstances of the case, the court can choose appropriate and adequate sentence under Section 306 IPC. On a consideration of all the relevant Crl.A. No.159 of 2011 -: 16 :- aspects, I find that a sentence of rigorous imprisonment for four years will be the adequate sentence under Section 306 IPC in this case. In the result, this appeal is allowed in part. The 2[nd] appellant is found not guilty of the offence under Section 498A IPC, and she is acquitted of the said offence in appeal under Section 386(b)(i) of the Cr.P.C. Accordingly, the conviction and sentence against her under Section 498A IPC will stand set aside, and she will stand released from prosecution. But, the conviction against the 1[st] appellant is confirmed subject to the alteration that it shall be under Section 306 IPC. He is found not guilty of the offence under Section 304B IPC, but he is found guilty under Section 306 IPC. The sentence imposed by the court below will also stand modified accordingly. The substantive sentence will stand reduced to rigorous imprisonment for four years under Section 306 IPC. The 1[st] appellant will get the benefit of set off as already ordered by the trial court. Sd/- **P.UBAID JUDGE** Jvt/12.10.2017