Rajasekharan @ Raju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 2ND DAY OF DECEMBER 2013/11TH AGRAHAYANA, 1935** ## **CRL.A.No. 281 of 2008 ( )** **-------------------------AGAINST THE ORDER/JUDGMENT IN SC 215/2006 of ADDL.SESSIONS COURT (ADHOC-1), KOTTAYAM DATED 05-02-2008 .......................................** **APPELLANT(S)/ACCUSED :** **--------------------------------------** **RAJASEKHARAN @ RAJU, S/O.NARAYANAN, KOCHERI HOUSE, KATTIKUNNU, CHEMBU VILLAGE.** ## **BY ADV. SRI.V.K.SUNIL** **RESPONDENT(S)/COMPLAINANT : -----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY SMT.P.MAYA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMV** ## P. BHAVADASAN, J. .................................... Crl.Appeal No.281 of 2008 ............................................... Dated this the 2[nd] day of December, 2013 JUDGMENT The accused was prosecuted for the offences punishable under Sections 498A and 306 of the Indian Penal Code. He was found guilty on both counts. He was convicted and sentenced to suffer five years rigorous imprisonment and to pay a fine of `10,000/- with a default clause to undergo rigorous imprisonment for one year for the offence under Section 306 of IPC and sentenced to suffer three years rigorous imprisonment and to pay a fine of `5,000/- with a default clause to undergo rigorous imprisonment for three months for the offence under Section 498A of IPC. The substantiative sentences were directed to run concurrently and set off as per law was allowed. It was also directed that if the fine amounts were realised, a sum of `10,000/- will be paid to P.W.1, the brother of the deceased as compensation. 2 Crl.Appeal No.281 of 2008 2.The accused married the deceased on 17.04.2004. It was a second marriage of the accused while it was a late marriage for the victim, who was 37 years of age at the relevant time. According to prosecution allegations, at the time of marriage, the victim was given 15 sovereigns of gold and `35,000/-. After marriage, the couple stayed together for nine months in their house at Narakkal and then they shifted their residence to Kattikunnu in Chembu village. When the mother of the accused died, complaining that the members of the family of the victim did not respond properly, a rift occurred in between the two families. Going by the initial allegations of the prosecution, there began the illtreatment of the victim by the accused. Unable to bear the mental and physical torture, she left him and took up residence with her brother, P.W.1. The attempted mediation failed. On 10.04.2006, it is alleged that coming to know that the accused was planning to sell the property, the victim went to the house of the accused and she found the house locked. Later she got 3 Crl.Appeal No.281 of 2008 into the house using the key she had. The prosecution allegation is that in the evening when the accused returned home he did not like the presence of the victim in the house and that resulted in a severe physical assault by the accused of the victim. The victim had to take shelter in the neighbourhood namely in the house of P.W.8. The next day morning, she is alleged to have immolated herself. P.W.1, the brother of the victim laid Ext.P1, First Information Statement which was recorded by P.W.14, who registered crime as per Ext.P13 First Information Report. P.W.9, the Tahsildar conducted inquest and prepared Ext.P3, inquest report. Autopsy was done by P.W.16, who prepared Ext.P15 report. In the meanwhile, investigation was taken over by P.W.15. He prepared Ext.P8 scene mahazar and had the accused arrested on 13.04.2006. During investigation, finding that offence under Section 306 of IPC was also made out, he filed Ext.P14 report before court. He recorded statement of witnesses, completed investigation and P.W.17 laid charge before court. Crl.Appeal No.281 of 2008 4 3.The court, before which final report was laid took cognizance of the offences. Finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Kottayam. The said court made over the case to Additional Sessions Court, Adhoc -1, Kottayam for trial and disposal. The latter court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 306 and 498A of IPC. - 4.To the charge, accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had P.Ws.1 to 17 examined and Exts.P1 to P16 marked. Defence had Ext.D1 to D3 marked. - 5.After the close of 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 denied of having committed any act, which would 5 Crl.Appeal No.281 of 2008 constitute an offence. He would say that the couple were residing at Kattikunnu in Chembu village and coming to know about the death of his mother, the couple went to Tharavadu house on 13.12.2005. On the ground that for the Sanjayanam ceremony, no invitation is being given to the family of the victim, she left him and went to her house. She did not come back. On 10.04.2006, the accused says that he had locked his house at Kattikunnu and gone to his Tharavadu house. On the previous day of the incident, when the accused returned from his textile shop to the place of incident, he found the victim cleaning the courtyard. He took objection to her presence in the place and asked her with whose permission she had entered the house and that she could enter the house only after the family members came and talk about the incident. The victim is said to have replied that she will continue to stay in the house. At that point of time, the accused says that he left the house. He would also say that at that time the victim threatened him that he will suffer for the 6 Crl.Appeal No.281 of 2008 same. On 12.04.2006 at about 12 noon, he claims that he along with his sisters had gone to his house at Kattikunnu and when they reached that place, they knew about the death of Pushpa, who is the wife of the accused. He became unconscious. He says that he went to the Police Station and laid complaint. - 6.Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He examined D.W.1 and had Exts.D4 and D5 marked. - 7.The court below presumably impressed by the evidence of P.Ws.1, 2 and 9 and Exts.P2 and the entry in Ext. P3 found that the prosecution has succeeded in establishing the case against the accused and found him guilty of the offences as already mentioned. Conviction and sentence followed. - 8.Assailing the conviction and sentence, the learned 7 Crl.Appeal No.281 of 2008 counsel appearing for the appellant pointed out that the main basis for the conclusion drawn by the lower court are Exts.P2 and P3. According to the learned counsel, it is true that if Exts.P2 and P3 are without blemish and do reflects the true state of affairs, certainly a conviction can be based on the same. But if, on the other hand, the other items of evidence in the case casts suspicion about the veracity of Exts.P2 and P3, then the court has to necessarily look for corroboration and cannot base its conclusion solely on the dying declaration. For the above prepositions, the learned counsel relied on the decisions reported in Ram Bihari Yadav v. State of Bihar and others [AIR 1998 SC 1850(1)], Dandu Lakshmi Reddy v. State of A.P. [AIR 1999 SC 3255], Khushal Rao v. State of Bombay [AIR 1958 SC 22(1)], Thurukanni Pompiah and another v. State of Mysore [AIR 1965 SC 939] & Mohan Lal and Others v. State of Haryana [AIR 2007 SC (Supp) 1139] and it is also pointed out by the learned counsel that an element of vindictiveness cannot be ruled out and if that be so, that also casts 8 Crl.Appeal No.281 of 2008 suspicion on Exts.P2 and P3 and for the said proposition, the learned counsel relied on the decision in Uka Ram v. State of Rajasthan [AIR 2001 SC 1814]. Relying on the evidence of D.W.1 and Exts.D4 and D5, the learned counsel went on to point out that the claim made by the prosecution that the house in Kattikunnu was put up using the funds of the victim cannot be true because as per the evidence adduced by him, it would be evident that the house was put up even before the marriage. If that be so, the contents of Exts.P2 and P3 are open to serious doubt and placing implicit faith on those documents would not be proper. 9.The learned counsel for the appellant then went on to point out that the contents of Ext.P2 show that the victim had a tendency to implicate almost all the members of the family of the accused and that shows an element of spite in the mind of the victim, and therefore, it could not be said that Exts.P2 and P3 are above board. The element of spite in her mind to Crl.Appeal No.281 of 2008 9 implicate all the family members to wreak vengeance casts doubt about her motive and intention in drawing up Ext.P2. If one is doubtful about Exts.P2 and P3 and looks for corroboration, the learned counsel points out that the prosecution case has necessarily to fail. 10.Even assuming that the contents of Exts.P2 and P3 are accepted, they make mention of only a solitary incident and that by itself is insufficient to attract Section 306 of IPC. According to the learned counsel, there is nothing to show that the accused by his act had intended that the victim should commit suicide or that he had knowledge that the circumstance created by him was such that the victim was left with no option but to commit suicide. There is no such circumstance brought out by the prosecution, and therefore, offence under Section 306 of IPC was not made out, it is contended. 11.The learned counsel for the appellant then pointed out that if Section 306 of IPC is not attracted, then for Crl.Appeal No.281 of 2008 10 rendering a finding regarding the offence under Section 498A of IPC, the prosecution cannot take the aid of Exts.P2 and P3 as could be seen from the decision in Bhagwan Das v. Kartar Singh and Others [AIR 2007 SC 2045]. In short, the contention is that the implicit faith placed by the court below on Exts.P2 and P3 was unfounded and uncalled for and the conviction on that basis cannot stand. 12.The learned Public Prosecutor, on the other hand, very vehemently contended that the contention though may look very attractive, has no substance. Exts.P2 and P3 are self explanatory. Ext.P2 tells the tale of torture and humiliation suffered by the victim who was left with no choice but to commit suicide. Of course, there might have been differences of opinion between the couple but the conduct made mention of in Ext.P2 speaks volumes about the nature of the man namely, the accused and the reason for the victim for having chosen the extreme step. She was so fond of the house in which Crl.Appeal No.281 of 2008 11 she lived and that she was not willing to part with it and that is reflected in Exts.P2 and P3. There cannot be any dispute, according to the learned Public Prosecutor, that she must have contributed for the construction of the house. At any rate, the conduct of the accused was such that it was intolerable as far as the victim was concerned and it was quite contrary to the expectations about him. Exts.P2 and P3 give a clear picture of a shattered women with no hope to live but to take the extreme step. The mere fact that in Ext.P2, she makes mention of the contribution by the other members of the family cannot be taken as a ground to suspect the contents of Ext.P2. It is significant to notice, according to learned Public Prosecutor, that when he arrived on the day previous to the date of incident in the evening he found the victim brooming the courtyard. Normally, one would have expected him to be happy about it but instead he took cudgels to drive out the women. This conduct on the part of the accused speaks volumes about his attitude towards his wife and that ultimately Crl.Appeal No.281 of 2008 12 led to the mishap. There is no reason, according to the learned Public Prosecutor, to doubt the statements in Exts.P2 and P3 and there is no oblique motive either proved or established to show that she was taking undue advantage of what one may call as unfortunate incident for blaming the accused. Exts.P2 and P3 stand scrutiny and those are sufficient to fasten liability on the accused. According to the learned Public Prosecutor, the lower court which had the opportunity to watch the demeanour of the witnesses and to appreciate the evidence in the first instance has chosen to accept the evidence of P.Ws.1, 2, 9 and Exts. P2 and P3 and there is no reason as to why this Court should take a different view. It is contended that no grounds are made out to interfere with the findings of the court below. 13.It can be seen from the evidence that the prosecution placed considerable reliance on Exts.P2 and P3.Ext.P2 is alleged to be a note said to have been written by the Crl.Appeal No.281 of 2008 13 victim almost immediately prior to the incident while Ext.P3 is the inscription found by the Tahsildar, P.W.9 while he conducted inquest on the wall of the room in which the suicide had taken place. In the decision reported in Ram Bihari Yadav v. State of Bihar and others [AIR 1998 SC 1850(1)] on which reliance is placed by the learned counsel for the appellant, it was held as follows : The law relating to dying declaration, the relevancy, admissibility and its probative value is fairly settled. More often the expression 'relevancy and admissibility' are used as synonyms but their legal implications are distinct and different for more often than not facts which are relevant may not be admissible, for example, communication made by spouses during marriage or between an Advocate and his client though relevant are not admissible; so also facts which are admissible may not be relevant, for example, questions permitted to be - put in cross examination to test the veracity or impeach the credit of witnesses, though not relevant are admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case. In this case, the thrust of the submission relates not to relevancy or Crl.Appeal No.281 of 2008 14 admissibility but to the value to be given to Exh.2. A dying declaration made by a person who is dead as to cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of his death comes in question, is relevant under Section 32 of the Evidence Act and is also admissible in evidence. Though dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case. ## 14.In the decision in Dandu Lakshmi Reddy v. State of A.P. ## [AIR 1999 SC 3255] it was held as follows : 11.We would proceed on the assumption that Ext.P11 and Ext.P14 contained what Lakshmi Devi had told the scribes of those two documents. The pivotal question is whether the said version of Lakshmi Devi is credible and reliable, or is there room for entertaining any doubt about the truthfulness of her version. 12. In view of the impossibility of conducting the test on the said version with the touchstone of cross-examination we have to adopt other tests in order to satisfy our judicial conscience that Crl.Appeal No.281 of 2008 15 those two dying declarations contain nothing but truth. 13. First among such tests is to scrutinise whether there are inherent improbabilities in that version. We are unable to detect any such improbability inherent therein. The next test is whether there is any inherent contradiction therein. In that scrutiny we came across one material contradiction as between the two dying declarations regarding the context in which deceased caught fire. Ext.P14 shows that she was set fire to when she was lighting a stove for preparing the coffee. The relevant portion of Ext.P14 is extracted herein below : “Today morning i.e., 9.10.1994 when I was lighting the stove in the kitchen and preparing coffee at about 6 a.m my mother-in-law and husband came from behind. After entering the kitchen, my husband caught hold of my hair and I was unable to move. My mother-in-law Narayanamma sprinkled kerosene on my body and clothes. She asked her son to set fire, my husband lit the matchstick and threw on my clothes. When my clothes caught fire I started shouting with fear. My mother-in-law Narayanamma and my husband Laxmi Reddy ran away from there”. 16.Thus the High Court has sidelined such a noticeable discrepancy looming large as between the two different statements made by the same person. When the sphere of scrutiny of dying Crl.Appeal No.281 of 2008 16 declaration is a restricted area, the Court cannot afford to sideline such a material divergence relating to the very occasion of the crime. Either the context spoken to one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as it relates to the opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in a criminal case is not a feasible course. 15.In the decision in Thurukanni Pompiah and another v. State of Mysore [AIR 1965 SC 939] it was held as follows : Held on facts that considering all the circumstances of the case, the dying declarations suffered from an infirmity and were not reliable by themselves and could not safely form the basis of the conviction of the accused without further corroboration. As no such corroboration was forthcoming in the case, the accused were given the benefit of doubt and were acquitted. Cr.App. No. 251 of 1962 dated 20-2-1963(Mys.) Reversed. 16.In the decision in Mohan Lal and Others v. State of Haryana [AIR 2007 SC (Supp) 1139] it was held as follows : Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused Crl.Appeal No.281 of 2008 17 has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying, declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. ## 17.In the decision in Uka Ram v. State of Rajasthan [AIR 2001 SC 1814] it was held as follows : 6. 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 attendants cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are Crl.Appeal No.281 of 2008 18 themselves relevant facts under the circumstances enumerated under sub-sections (1) to (8) of Section 32 of the Act. When the statement is made by a person as to 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 is admissible in evidence being relevant whether the person 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. Such statements in law are compendiously called dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath - Nemo moriturus praesumuntur mentiri. Such statements are admitted, upon consideration that their declarations made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideraiton to speak the truth. The principle on which the dying declarations are admitted in evidence, is based " - upon the legal maxim Nemo moriturus prae sumitur mentire" ie., a man will not meet his maker with a lie in his mouth. It has always to Crl.Appeal No.281 of 2008 19 be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not - subjected to cross examination, it is essential for the Court to insist that dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit State of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence. 18.Going by the principles laid down in the above decisions, we get different aspects regarding appreciation of a dying declaration. The crux is that the dying declaration should be such that it inspires confidence in the mind of court and should be without any blemish and it should truly reflect the mind of the person. If there are circumstances to show that the 20 Crl.Appeal No.281 of 2008 contents of the dying declaration are factually incorrect or are rendered incorrect or untrue by other evidence adduced in the case, then the court has to necessarily look for corroboration. If, on the other hand, the dying declaration do not suffer from any factual or legal infirmities, a conviction can be safely based on the same. 19.P.W.1 is the brother of the victim. It would appear that the victim is elder to him. He says about the life which his sister had in the matrimonial house. He says that at the time of marriage, 15 sovereigns of gold and `35,000/- were given as share of the victim. Initially, they used to stay in the Tharavadu and later they shifted to a plot which belonged to the accused. Of course, P.W.1 would say that the victim used to complain about the ill-treatment by the accused quite often to him and on one occasion he along with his brother-in-law had gone for mediation but they were scolded away by the accused. On 10.04.2006, according Crl.Appeal No.281 of 2008 21 to the evidence of this witness, some how the victim happened to come to know that the accused was planning to sell the house where they were residing and that made her go to the house immediately. When she reached the house, she found it locked and she entered the house with the key which she had. On the next day, it is said that he and his sister had gone home and till afternoon, the accused had not come there and they returned. In the evening, P.W.1 would say that he received a phone call from the neighbourhood informing him that the victim was badly thrashed by the accused and she was thrown out of the house and she had taken shelter in the house of P.W.8. P.W.1 says that he pacified the victim by saying that he and another sister of the victim would come the next day morning and take her to the hospital. The next day when they reached the house, they found that the victim was no more. In this regard P.W.1 gets sufficient support from the evidence of P.W.2 also. Crl.Appeal No.281 of 2008 22 20.Even though the prosecution examined quite a few neighbours namely P.Ws.3, 8, 10, 11 etc., unfortunately they betrayed the prosecution and denied of having seen or known about any assault on the victim by the accused. So it could not be said that the prosecution did not attempt to adduce independent evidence. They did, but they failed. This aspect will have to be born in mind while appreciating the evidence adduced by the prosecution. 21.Now one has to turn to Exts.P2 and P3, which are the primary documents and the main items of evidence put against the accused. Ext.P2 is the suicidal note said to have been scribbled by the victim. That was seized by P.W.14 on 12.04.2006. A reading of Ext.P2 shows the frustration that had crept in and the agonising experience which the victim had in the matrimonial house. She expected care and love from him. It would appear from Ext.P2 that for 1 ½ year after marriage everything went well and then things began to take a Crl.Appeal No.281 of 2008 23 bad turn. Ext.P2 makes mention of the severe assault by the accused on the victim and which made it unbearable to continue in the house. Ext.P2 does of course show her extreme hate and despise for the accused. Ext.P3 is also illustrative in this regard. Her fascination and passion for the house where the couple lived is very evident from the inscription noticed by the Tahsildar while conducting the inquest. It is also indicative of the fact that the initial period of marriage was very happy and joyful and she could not even think of leaving that house. 22.The principle of dying declaration is presumed that the man will not die with a lie in his mouth. It is considered to be a solemn occasion. Normally, unless it is shown that there are grounds to doubt the version given in dying declaration, it will not be open to suspicion. But there may be circumstances where vindictiveness may be reflected in the dying declaration or some other circumstance which would show that the author had a Crl.Appeal No.281 of 2008 24 motive or intention to deliberately implicate or falsely implicate a person. In the case on hand, much reliance is placed on Ext.D4 and D5 and the evidence of D.W.1 to contend for the position that the house in which the couple had taken up residence later was put up even before the marriage of the victim with the accused. Even assuming it to be so, it would appear that she had spent money for the house though it may not be for the construction of the house but for some other purpose for the house itself. Her passion and love for the house is quite evident from Ext.P3. Unless she had spent money or she had toiled for that house, those words would not have been inscribed by her in the room where the incident took place. It is also significant to notice that Ext.P3 shows that initially their matrimonial life was very happy. Going through Ext.P2 also, one gets the impression that the initial period of marital life was uneventful and was in fact happy and joyful. An indication one gains from the evidence is that it was the death of the mother of accused that the turn of events Crl.Appeal No.281 of 2008 25 took place. There seems to have been a rift between the two families regarding the conduct of the family of the victim after the death ceremony of the mother of the accused. But, at the same time a reading of Ext.P2 would show that the victim was badly assaulted and the conduct from the side of the accused was such that, it left her with no hope and she was convinced that a peaceful and happy life with him was impossible. That feeling of the victim reflected in Ext.P2 is confirmed by the conduct of the accused as spoken to by him while questioned under Section 313 Cr.P.C., that previous to the date of incident when he came in the evening he found the victim brooming the courtyard and he took serious objection to the same and asked her to go out of the house. Of course, she refused and then he says he went out of the house. At any rate, there is something to show that he did not like the presence of the victim in the house at all. It shows that there was some act on his part, which had provoked the victim and which had made her to believe that she would not have a peaceful Crl.Appeal No.281 of 2008 26 marital life with him any more. Of course, there is no direct evidence except what is contained in Ext.P2 regarding the physical assault said to have been inflicted by the accused. One is not forgetting the evidence of P.Ws.1 and 2 to the effect that victim had complained to them about the ill-treatment meted out by the accused on earlier occasions. But, even if due allowance is given to those statements, one need not doubt the statement in Ext.P2 regarding the severe physical ill-treatment meted out by the accused to the victim. That seems to have made her desperate and insisted a firm belief in her that she could hope for nothing else. It tells the tale of a helpless and hopeless women. It tells the agony of a tortured women. Apart from the fact that there is a claim made by the accused that the house has been constructed by utilising his funds, there is nothing to doubt the version in Ext.P2. Even assuming that to be true, that by itself is not a ground to suspect the veracity of Ext.P2. Crl.Appeal No.281 of 2008 27 23.True, Ext.P2 makes mention of the involvement of the other members of the family also. But, act which made her desperate is attributed to the accused and the other members are attributed only with mental harassment. Probably, they were passive onlookers of the illtreatment meted out by the accused to the victim. She would have hoped and believed that they may intervene and prevent him from continuing the torture. Their passiveness might have given her the impression that they too are privy to the acts committed by the accused. That such a belief which might have developed in her mind is not a ground to doubt the version given in Ext.P2. 24.Her passion for the house as mentioned in Ext.P3 and her miserable life in the matrimonial house as could be discernible from Ext.P2, tell the story of a shattered women. 25.Of course, if one is over anxious about the 28 Crl.Appeal No.281 of 2008 inconsistencies and contradictions. There can be any number of contradictions and inconsistencies that could be found out from the evidence of the witnesses. But, the evidence has to be appreciated as a whole and it has to be seen whether there is a ring of truth in the evidence adduced by the prosecution. Inconsistencies and contradictions are bound to occur. 26.In a case of this nature where the acts take place within the house except the members of the house. It is difficult to get the evidence regarding the acts committed by the members of the house. In the case on hand, it has come out in evidence that the couple were living separately after 9 months of marriage in a house put up by the property belonged to the accused. - 27.It is quite unnatural and unusual for a women to complain about her husband without any basis. It is true that one has to re-collect the evidence of P.W.1 to the effect that after the victim left the matrimonial Crl.Appeal No.281 of 2008 29 house and took up residence with him, the accused could not bother to take her back. Apart from that, when coming to know that differences of opinion had arisen between the couple, P.W.1 and his brother-in-law went for mediation and they were kept at bay by the accused. These aspects are spoken to by P.W.1 are not seriously challenged in cross examination. It shows that there was ill-treatment for a long time and it admittedly the act which took place on 11.04.2006 when the victim was badly manhandled by the accused. The evidence of P.Ws.8 and 10 also show that on two days i.e., 10[th] and 11[th] the victim had taken shelter in their house during the night. 28.When viewed in the light of the evidence so furnished, there is no reason to doubt the contents of Ext.P2 and the passion for the house as discernible from Ext.P3. It is not as if there is no corroboration at all. The evidence of P.W.1 to a certain extent confirms that all was not well between the couple. At least the statement that he Crl.Appeal No.281 of 2008 30 and his brother-in-law had gone for mediation, did not seen disputed or impeached. If they had moved for mediation, surely there must have been differences of opinion between the couple and when these facts are read together, the irresistible conclusion is that the conduct of the accused had driven the victim to commit suicide. 29.The next question that arises for consideration is whether the act complained of is sufficient to attract the offence under Section 306 of IPC. It was vehemently contended that even assuming all what the prosecution says are true, the element of instigation which is necessary to attract Section 306 of IPC is not available in the case on hand. The word 'instigate' in fact means 'incite'. Certainly, there must be an intention on the part of a person concerned to instigate a thing only when he knew that a thing is going to be done. But, in assessing the state of mind of the person concerned, the totality of the circumstances will be taken note of. Crl.Appeal No.281 of 2008 31 In the case on hand, apart from the fact that the couple were living separately and that the victim and the accused have no mood for a patch up, his conduct on the previous day of the incident left with no choice to the victim. That the victim had taken shelter in the house of P.Ws.8 and 10 on 11.04.2006 is not beyond challenge. If, as a matter of fact, the accused was mild as he would put it in his Sec. 313 Cr.P.C statement, that would not have happened. More acceptable is the version given by the prosecution that the victim was in the house which was not to the liking of the accused and he physically assaulted her and driven out of the house and compelled her to take shelter in the house of P.W.8. If these things are read together, the only conclusion possible is that it was the acts committed by the accused who knew that the victim had no choice but to take the extreme step and that culminated in the suicide of the victim. Under the above circumstances, it would not be said that there was no instigation. Crl.Appeal No.281 of 2008 32 30.Taking note of the various items of evidence which would show the ill-treatment meted out by the accused, the irresistible conclusion is that the victim was treated cruelly by the accused. The offence under Section 498A IPC as noticed by the court below is clearly established. - 31.The learned Public Prosecutor is fully justified in her submission that, on the evidence on record, the court below was perfectly justified in coming to the conclusion that the offences under sections 306 and 498A of IPC have been made out. 32.What now remains to be considered is the question of sentence. It has to be said that considering the nature of the conduct exhibited by the accused and his adamant attitude and also his refusal to accommodate his wife who hoped for a happy matrimonial life and who had a late marriage, the sentence seems to be quite reasonable for both the offences. It cannot be said to be in excess. Crl.Appeal No.281 of 2008 33 In the result, this appeal is without merits and is liable to be dismissed. I do so, confirming the conviction and sentence passed by the court below. sd/(P. BHAVADASAN, JUDGE) AMV/ /TRUE COPY/ P.A.TO JUDGE