Rajith S. N v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933** **Crl.MC.No. 94 of 2011()** **-----------------------------------(CRIME NO.1319/2010 OF KADAKKAL POLICE STATION)** **...........** ## **PETITIONER(S): ACCUSED:** **-----------------------------------------** **RAJITH.S.N, AGED 25 YEARS, S/O. LATE SUGATHAN, KUNNIL VEEDU, EEYAKODU, PULLUPARA.P.O, KADAKKAL, KOLLAM DISTRICT.** **BY ADVS. SRI.SHABU SREEDHARAN, SRI.C.K.PRASAD, SRI.K.NANDAKUMAR.** **RESPONDENT(S): COMPLAINANT:** **---------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY** - **THE SUB INSPECTOR OF POLICE, KADAKKAL POLICE STATION, KOLLAM DISTRICT, THROUGH THE PUBILC PROSECUTOR, HIGH COURT OF KERALA.** ***ADDL.R2 IMPLEADED:** **R2. SIVARAJAN, S/O.GOVINDAN, KUNNUPURATH VEEDU, MANNAMPACHA, EYYAKKODE, KUMMIL, KADAKKAL, KOLLAM.** - **(*ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 14/06/2011 IN CRL.M.A.NO.3474/2011)** **R1 BY PUBLIC PROSECUTOR SRI. V.MANU ADDL.R2 BY ADV. SRI.LIJU. M.P.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **CRMC.NO.94/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **ANNEX.1: COPY OF THE MARRIAGE CERTIFICATE DTD. 30/05/2008.** - **ANNEX.2: COPY OF THE COMPLAINT IN CMP NO.2162/08 DTD. 04/06/08.** - **ANNEX.3: COPY OF THE FIR IN CRIME NO.366/08 OF KADAKKAL POLICE STATION DTD. 12/06/08.** - **ANNEX.4: COPY OF THE CHARGE SHEET IN CRIME NO.366/08 OF KADAKKAL POLICE STATION DTD. 19/08/08.** - **ANNEX.5: CERTIFIED COPIES OF DEPOSITIONS OF PW1 DTD. 28/07/2010 IN CC.NO.1595/98 OF JFMC II, KOTTARAKKARA.** - **ANNEX.6: CERTIFIED COPIES OF DEPOSITIONS OF PW2 DTD. 28/07/2010 IN CC.NO.1595/08 OF JCMC II, KOTTARAKKARA.** - **ANNEX.7: CERTIFIED COPIES OF DEPOSITIONS OF PW3 DTD. NIL IN CC.NO.1595/08 OF JFMC II, KOTTARAKKARA.** - **ANNEX.8: CERTIFIED COPIES OF DEPOSITIONS OF PW4 DTD. 26/10/2010 IN CC.NO.1595/08 OF JFMC II, KOTTARAKKARA.** - **ANNEX.9: COPY OF THE ORIGINAL PETITION DTD. 07/06/2008 IN OP.NO.408/08 OF ADDL.FAMILY COURT, KOTTARAKKARA.** - **ANNEX.10: COPY OF THE ORIGINAL PETITION DTD. 9/12/08 IN O.P.(HMA) NO.945/08 OF ADDL.FAMILY COURT, KOTTARAKKARA.** ## **RESPONDENT'S ANNEXURES:** ## **N I L** **/TRUE COPY/** ## **P.S.TO JUDGE** **Kss** ## **THOMAS P.JOSEPH, J.** **==================================== Crl. M.C. No. 94 of 2011 ==================================== Dated this the 20[th] day of June, 2011** ## **O R D E R** Petitioner seeks to quash Annexure-13, report dated 17.09.2010 submitted by the Sub Inspector of Police, Kadakkal before the learned Judicial First Class Magistrate-II, Kottarakkara in Crime No.1319 of 2010 reporting that in the said case originally registered under Section 174 of the Code of Criminal Procedure (for short, “the Code”), offence under Section 304B of the Indian Penal Code (short, “the IPC”) is revealed and hence the section of offence in the FIR is altered accordingly. Learned counsel contends that no such offence could be attributed to the petitioner in that there is no case or any material to show that petitioner is the husband of the deceased. Learned counsel has referred me to various documents produced along with this petition. I have heard learned Public Prosecutor also and learned counsel for additional second respondent. 2. One Raji Sivan consumed poison while allegedly staying with petitioner, at his residence on 26.08.2010 and while undergoing treatment at the hospital she died on 06.09.2010. The **CRL.M.C. No.94 of 2011** ## -: 2 :- Police registered Annexure-3, FIR under Sec.174 of the Code and started investigation. Annexure-12 is the inquest report prepared by the police. On the materials collected by the Investigating Officer, he submitted Annexure-13, report incorporating Sec.304B of the IPC in the FIR. It is contended by learned counsel that records produced would show that there was a valid marriage between the deceased and one Lejin subsisting at the time of her death on 06.09.2010 and hence petitioner cannot be said to be the husband of deceased so as to attract offence under Sec.304B of the IPC. Learned counsel for additional second respondent has contended that to attract Sec.304B, IPC a valid marriage is not necessary. It is also argued that living together as husband and wife raises a presumption of valid marriage. 3. It is not disputed that the deceased had been married to Lejin and she had initiated proceeding against the said Lejin and others for offence punishable under Sec.498A of the IPC. Annexure-3 is the FIR in crime No.366 of 2008 of Kdakkal police registered on 12.06.2008 against the said Lejin and his relatives for offence under section 498A read with 34 of the IPC. Annexure-4 is the final report in the said case where the Investigating Officer came to the conclusion that Lejin and others committed the said offence. That case went for trial and the **CRL.M.C. No.94 of 2011** ## -: 3 :- deceased herself gave evidence. Annexure-5 is the photocopy of her deposition. She claimed that Lejin is her husband and their marriage was solemnized on 07.02.2007 (according to the learned counsel the marriage was on 07.02.2008). Annexure-6 is the photocopy of deposition of mother of the deceased and Annexure-7 is the deposition of witness for the prosecution. They have also referred to the marriage of the deceased, Raji Sivan with Lejin. Annexure-8 is the photocopy of the deposition of the Uncle of the deceased. That deposition was recorded on 26.10.2010, i.e., after the death of Raji Sivan on 06.09.2010. In Annexure-8, Uncle of the deceased stated that she was married to Lejin on 02.02.2008. It is thus evident that as on the date of death of Raji Sivan there was a valid marriage subsisting with Lejin. Annexure-12 is the inquest report where one of the witnesses is seen to have stated that the deceased was staying with petitioner for sometime and that he was harassing her with demand to sell the 70 cents of land belonging to her, was constantly ill-treating her and unable to bear the ill-treatment she consumed poison. 4. Learned Public Prosecutor submitted that if not Sec.304B of the IPC, offence under Sec.306 of the IPC is made out in that there are sufficient materials to show that petitioner was harassing the deceased with demand for sale of her property **CRL.M.C. No.94 of 2011** ## -: 4 :- and in that circumstance she committed suicide which according to the learned Public prosecutor attracted offence under Sec.306 of the IPC. Learned counsel for additional second respondent also raised the same argument. Alternatively it is argued that even if there was no valid marriage between petitioner and the deceased that did not take the case out of the purview of Sec.304B or Sec.498A of the IPC. Reliance is placed on the decisions of the Supreme Court in **Reema Aggarwal v. Anupam** (AIR 2004 SC 1418) and **Koppisetti Subbharao** **@ Asubramanian v. State of A.P.** (AIR 2009 SC 2684). 5. Annexure-13, report which is under challenge is to the effect that Sec.304B of the IPC is incorporated in the FIR. That provision deals with dowry death and says that where the death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within “7 years of her marriage” and it is shown that soon before her death she was subjected to cruelty or harassment “by her husband or any relative of her husband” for, or in connection with any demand for “dowry” such death shall be called dowry death and “such husband or relative” shall be deemed to have caused her death. Explanation says that for the purpose of sub-sec.(1) “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition ## **CRL.M.C. No.94 of 2011** ## -: 5 :- Act (for short, “the Act'). 6. As per the above section the person who is liable for punishment is the husband or any of his relative and the expression “dowry” must be given the meaning given in Sec.2 of the Act. In Sec.2 of the said Act dowry is defined as any property or valuable security given or agreed to be given either directly or indirectly by one party to a “marriage” to the other party to the “marriage” or 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. Thus going by Sec.2 of the Act and Sec.304B of the IPC it is clear that the person who could be proceeded against is either the husband of the woman whose death occurred in circumstances otherwise than under normal circumstances within 7 years of the marriage and any relative of husband. Prima facie it appears that there must be a marriage between the deceased and the person accused or his relative of the offence. 7. True the Supreme Court in the above decisions stated that the degree of proof required to prove a marriage for the purpose of Sec.304B is not as stringent as in a claim of civil right, right to property, etc. The dictum laid down is that so far as the offence under Secs.498A and 304B of the IPC are concerned it would be appropriate to consider the expression “husband” to cover a person **CRL.M.C. No.94 of 2011** ## -: 6 :- who enters into marital relationship and under the colour of such proclaimed or feigned status of a husband subjects the woman to cruelty or coerces her in any manner or for any of the purposes enumerated to in Sec.304B or Sec.498A of the IPC. 8. Those decisions have to be understood on the peculiar facts and circumstances of the case where it was not contended that there was any valid marriage subsisting between the woman and anybody other than the accused. Parties before me are Hindus and a second marriage when the first marriage is subsisting is null and void. I referred to the various Annexures produced by petitioner which would show that even as on date of death of Raji Sivan she had a valid marriage subsisting with Legin, accused in Crime No.366 of 2008 of Kdakkal Police Station and C.C. No.1595 of 2008 of the court of learned Judicial First Class Magistrate, Kottarakkara. It is pertinent to note that the father of deceased stuck to that case of the deceased even when he was examined in court after the death of the deceased. If that be so, question of there being a marriage of any sort between petitioner and deceased so that the case could be brought within the ambit of Sec.304B of the IPC does not arise. I am persuaded to accept the contention of learned counsel for petitioner that there is no scope for application of Sec.304B of the IPC. 9. As such Annexure-13, report implicating petitioner for -: 7 :- ## **CRL.M.C. No.94 of 2011** offence punishable under Sec.304B of the IPC cannot stand and is liable to be quashed. I do so. But I make it clear that it is open to the investigating agency to look into the question whether petitioner has committed any other offence and if so proceed in the matter as provided under law. Resultantly, Criminal Miscellaneous Case is allowed. Annexure-13, report is quashed for the reasons I have stated above. But I make it clear that it is open to the Investigating Agency to look into whether petitioner has committed any other offence in relation to the death of the deceased and if so, proceed in the matter as provided under law. ## **THOMAS P. JOSEPH, JUDGE.** vsv