Sajeevan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 CRL.A.No. 210 of 2011() ----------------------SC.689/2004 of ASSISTANT SESSIONS COURT, CHERTHALA .................... APPELLANT(S): IST ACCUSED ------------------------- SAJEEVAN, S/O.SUGUNAN, MANATHARA HOUSE, WARD NO.2, KUTHIATHODU PANCHAYATH, ALAPPUZHA DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN SMT.SABINA JAYAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2011, ALONG WITH CRA NO. 449 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN,J** ## **---------------------------------------------Crl. Appeal Nos.210 & 449 of 2011 -----------------------------------------------** Dated this the 28[th] day of October, 2011 ## **JUDGMENT** As the impugned judgment in both the appeals is one and the same and the appellants in the above two appeals are the accused in the very same impugned judgment and the facts and circumstances and the question of law involved are identical, both the above appeals are heard together and being disposed of by this common judgment. 2. In both the appeals, the challenge is against the judgment dated 29.1.2011 in SC No.689/2004 on the file of the court of Asst. Sessions Judge, Cherthala. Crl.A.No.210/2011 is preferred by the 1[st] accused therein challenging his conviction and sentence u/s.306 and 498A of IPC, whereas Crl.A.No.449/2011 is preferred by the 2[nd] accused challenging her conviction and sentence u/s.498A of IPC, who is the mother of the 1[st] accused, the appellant in the other appeal. 3. The prosecution case is that the 1[st] accused married one Sheela, the daughter of PW5 and CW1 and thus while they were living as husband and wife in the house of the 1[st] accused, in Ward No.2 of Kuthiyathode Panchayath, as the said Sheela questioned the connection of the 1[st] accused with some other ladies, she was subjected to mental and physical cruelty by **Crl.A.Nos.210 & 449 of 2011** ## **:-2-:** the accused 3 in number including the 3[rd] accused, the daughter of the 2[nd] accused and in furtherance of their common intention to subject her to cruelty, the 1[st] and 2[nd] accused on 9.6.2002 voluntarily caused hurt to her and the victim was admitted in the hospital and subsequently, on account of the physical and mental cruelty and harassment meted out against her on 17.7.2003 at about 10.a.m, the said Sheela attempted to commit suicide by pouring kerosene on her body for which 1[st] accused abetted her to commit suicide, by setting her ablaze from the fire, which he lighted in the kitchen and accidentally fire from the hearth caught on Sheela's dress and she sustained serious burn injuries and she succumbed to her injuries at about 6.55 a.m on 23.7.2003. Thus, according to the prosecution, the accused who are 3 in number committed the offence punishable u/s.498A, 306 r/w Section 34 of IPC. 4. With the above allegation, Crime No.155/2003 was registered in the Kuthiyathode Police Station for the said offences and on completing the investigation, a formal report was preferred in the Judicial First Class Magistrate Court-I, Cherthala based upon which the learned Magistrate took cognizance for the said offences and instituted CP No.18/2004. Subsequently, the learned Magistrate committed the case to the Sessions Court, wherein the case was received on file as SC No.689/2004 and **Crl.A.Nos.210 & 449 of 2011** ## **:-3-:** thereafter the case was made over to the present trial court for disposal. 5. On the appearance of the accused, after hearing the Public Prosecutor as well as the accused, the learned Judge of the trial court framed a formal charge, against the accused for the offence punishable u/s.498A, 306 r/w Section 34 of IPC, which when read over to the accused they denied the charge and pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the testimony of Pws.1 to 21 and documents Exts.1 to 27. Beside that, MOS 1 and 2 were identified as material objects. After the close of the prosecution evidence, the accused were questioned u/s.313 of Cr.P.C giving them an opportunity to make their response regarding the incriminating evidence and circumstances, that emerged during the prosecution evidence and the accused denied those incriminating evidence and circumstances. According to the accused, he never harassed the deceased mentally or physically and their marriage was a love marriage and because her parents were not in good terms, the deceased was mentally ill and the deceased looked upon him suspiciously when he talks with any other lady and on the date of incident she undertook a quarrel with him, on seeing him speaking with his aunty and in order to threaten him, she poured kerosene on her body and accidentally caught the fire from the kitchen hearth. According to him, the deceased on earlier occasion also has tried to ## **Crl.A.Nos.210 & 449 of 2011** ## **:-4-:** threaten him by attempting to commit suicide. The 2[nd] accused said that she does not know anything about the incident and whereas the 3[rd] accused says that she got married and was living separately, with her husband for the last 12 years, and she never ill-treated the deceased and she is falsely implicated in this case. 6. The trial court after considering the entire evidence and materials on record and the rival pleadings formulated 5 points for its consideration and finally found that the prosecution has succeeded to prove the guilt of the 1[st] accused beyond any reasonable doubt for the offence punishable u/s.498A and 306 IPC and also held similarly the prosecution succeeded to prove the guilt of the 2[nd] accused for the offence u/s.498A of IPC. But the trial court found that prosecution has miserably failed to prove the charge leveled against the 3[rd] accused beyond reasonable doubt and accordingly, she is found not guilty for the offences punishable u/s.498A, 306, r/w Section 34 of IPC and thus accordingly, she is acquitted u/s.235(1) of Cr.P.C. As the 1[st] accused is found guilty for the offence u/s.306 and 498A r/w Section 34 of IPC, he is convicted thereunder and sentenced to undergo rigorous imprisonment for 10 years and to pay a sum of Rs.75,000/- as fine, in default he is directed to undergo simple imprisonment for one year u/s.306 IPC. He is also sentenced to undergo rigorous imprisonment for 3 **Crl.A.Nos.210 & 449 of 2011** ## **:-5-:** years and to pay a fine of Rs.25,000/- u/s.498A of IPC and in default he is directed to undergo simple imprisonment for 3 months. It is ordered that the sentence shall run concurrently. On the basis of the finding against the 2[nd] accused, she is convicted u/s.498A of IPC and accordingly, she is sentenced to undergo imprisonment for 3 years and to pay fine of Rs.25,000/- and in default she is directed to undergo simple imprisonment for 3 months. It is also ordered that if fine collected, Rs.50,000/- shall be given by way of compensation to PW5, the mother of the deceased u/s.357(1) of Cr.P.C. Set off was allowed u/s.428 of Cr.P.C. It is the above finding and conviction and sentence are challenged in these two separate appeals by the 1[st] and 2[nd] accused. 7. I have heard Sri.C.P.Peethambaran, learned counsel appearing for the appellant in the above appeals and Smt. Lowsy, learned Public prosecutor for the State. 8. As I indicated earlier, to substantiate the allegation, the prosecution has examined Pws.1 to 21 and produced Exts.P1 to P27 documents. Among the prosecution witnesses, Pws.1 to 4 and Pws.7 to PWs.9 and PW10 turned hostile. Admittedly, the prosecution has no case that any person has witnessed the incident which allegedly taken place on 17.7.2003. PW1 is a neighbour of both the deceased as well as the accused ## **Crl.A.Nos.210 & 449 of 2011** ## **:-6-:** and he is also a relative of the accused. He had turned hostile and therefore, his portion of 161 statement is marked as Ext.P1. PW2 is also a relative of the accused, who turned hostile and his portion of 161 statement is marked as Ext.P2. PW3 is another neighbour, who did not support the prosecution and his portion of 161 statement is marked as Ext.P3. PW4, who turned hostile is the wife of PW2 and her portion of 161 statement is marked as Ext.P4. 9. PW5 is the mother of the deceased and PW6 are the brother of the deceased. When PW5 was examined, she deposed that her daughter Sheela, the deceased eloped with the 1[st] accused on 24.7.2000 without their consent and thereafter 1[st] accused and the deceased lived as husband and wife in the house of the 1[st] accused along with other accused. While so, the deceased delivered a child and till that time the relationship between the two families was strained. She had further deposed that after the birth of the child, the marriage between the 1[st] accused and the deceased was registered with KPMS Branch No.21, wherein they were members and the said marriage was on 29.11.2001. When PW5 was examined, a complaint was lodged by the father of the deceased before the Supdt. of Police, Alappuzha which was marked as Ext.P5. Ext.P19 is the FIR registered on the basis of Ext.P5 complaint. Ext.P6 complaint dated 14.6.2002 lodged by the ## **Crl.A.Nos.210 & 449 of 2011** ## **:-7-:** deceased in the Kuthiyathode Police Station connected with the incident on 8.6.2002 is also marked through PW5. When PW5 was examined, she has stated that on 8.6.2002 when Sheela sustained injury due to the assault made by the 1[st] and 2[nd] accused in their house, her husband, CW1 took the deceased to Thuravur Hospital and she was admitted therein as an inpatient for 5 days and treated for her injuries. She has also stated that after discharge of Sheela from the hospital at Thuravur, Sheela lodged a complaint before the Kuthiyathode Police Station. When PW6 was examined, he had also deposed in terms of the deposition of PW5. 10. PW7 is the signatory of Ext.P7 inquest, but he also turned hostile and his statement in Ext.P7 is marked as Ext.P8. Similarly PW8 is also a neighbour, who turned hostile, though he is an attester in Ext.P7 inquest. PW9 is another neighbour, who is the attester in Ext.P9 scene mahazar, but he had also turned hostile. 11. PW10 is the Asst. Surgeon of Community Health Center, Thuravur, through whom the prosecution marked Ext.P10 wound certificate with respect to the deceased connected with the incident that allegedly taken place on 8.6.2002. PW11 is another doctor attached to Taluk Hospital, Cherthala, who issued Ext.P11 wound certificate, by which it is certified that the deceased sustained 80% burn injuries. PW6 is the doctor, attached **Crl.A.Nos.210 & 449 of 2011** ## **:-8-:** to Medical College Hospital, Alappuzha, who made autopsy on the body of the deceased and issued Ext.P12 Post postmortem certificate. PW13 is another doctor attached to Medical College Hospital, Alapuzha, who examined the deceased before and after recording the dying declaration of the deceased by PW17 Judicial First Class Magistrate-II, Alapuzha. PW14 is the photographer through whom Ext.P14(a) photos of the body of the deceased and Ext.P15(a to c) of its negatives are marked. PW15 is the Tahsildar, Cherthala Taluk, who prepared Ext.P7 inquest with respect to the body of the deceased. PW16 is an attester to Ext.P20 seizure mahazar with respect to the marriage certificate connected with the marriage between the 1[st] accused and the deceased. PW16 has also turned hostile. PW17 is the Judicial First Class Magistrate -II, Alappuzha through whom Ext.P13 dying declaration of the deceased was recorded. Besides that Ext.P16 letter of the Chief Judicial Magistrate, Alapuzha, authorizing PW17 to record the dying declaration of the deceased is also marked through PW17. PW18 is the Village Officer, Kuthiyathode through whom Ext.P18 sketch and plan of the place of occurrence is marked. PW19 is the Station House Officer of Kuthiyathode Police Station, who registered Ext.P19 FIR on the basis of Ext.P5 complaint. Besides that Ext.P9 scene mahazar, Ext.P5 FI Statement and Ext.P6 complaint has also been marked through PW19. PW19, is the ## **Crl.A.Nos.210 & 449 of 2011** ## **:-9-:** officer, who undertook the initial investigation. PW20, who was the Joint Secretary of KPMS 21[st] Branch through whom Ext.P20 marriage register and Ext.P20(a) relevant entry of Ext.P20 were got marked. PW21 is the then Dy.Supdt. of Police, Cherthala, who conducted investigation and laid the charge. Ext.P21 mahazar with respect to the seizure of marriage certificate, Ext.P22 observation mahazar, mahazar with respect to MO2 plastic can, Ext.P24 recovery mahazar of P6 complaint, Ext.P25 recovery mahazar on MO1 cudjan leaves, Ext.P26 property list, Ext.P27 report to add charge u/s.306 were marked through PW21. It is the above evidence and materials which referred to and relied on by the learned Judge of the trial court in support of his finding and conviction of the accused. 12. The learned counsel for the appellants vehemently submitted that the findings of the learned judge of the trial court are absolutely illegal, incorrect and arbitrary and unsupported by any evidence. The learned counsel strenuously pointed out that even going by the evidence and allegation of the prosecution no offence u/s.306 is attracted against the accused since even according to the prosecution they have no case that the deceased committed suicide. It is also the submission of the learned counsel that the prosecution has miserably failed to prove that the death of the deceased was due to any harassment or cruelty meted against her by the ## **Crl.A.Nos.210 & 449 of 2011** ## **:-10-:** accused and in support of the above submission the learned counsel has pointed out that first of all there is no allegation against the 2[nd] accused, the appellant in Crl.A.No.449/2011 that after the incident on 8.6.2002 that she had physically or mentally ill-treated the deceased. It is also the submission of the learned counsel that after the alleged incident on 8.6.2002, the deceased as well as the 1[st] accused were residing together and absolutely no incident of any kind of harassment either mental or physical is alleged or proved by the prosecution and therefore, the offence neither u/s.498A nor u/s.306 are attracted against the 1[st] accused/appellant in Crl.A.No.210/2011. The learned counsel has pointed out that after the alleged incident on 8.6.2002 the incident which led to the death of the deceased was taken place on 17.7.2003 on the expiry of more than one year time and therefore, there is no nexus between the so called harassment as alleged by the prosecution and the incident that taken place on 17.7.2003. Therefore, according to the counsel, the findings of the trial court against the appellant u/s.306 and 498A are against the evidence and materials on record and the essential ingredients of the above Sections are not attracted and therefore, the appellants are entitled to get a clear acquittal. In support of the above submission, the learned counsel for the appellant relied upon the decision of the apex court in **Mohan** v. **State of Tamilnadu** [2011 (2) KLT SN 59 ## **Crl.A.Nos.210 & 449 of 2011** ## **:-11-:** (C.No.78) SC] and **Gangula Mohan Reddy** v. **State of Andhra Pradesh** [2010 (1) Supreme Court Cases 750]. 13. On the other hand, the learned Public Prosecutor, resisting the contention advanced by the counsel for the appellant vehemently submitted that the evidence that adduced by the prosecution, particularly through Ext.P13 dying declaration of the deceased itself is sufficient to prove the overt act of the 1[st] accused by which he abetted the deceased to commit suicide. According to the learned Public Prosecutor, as evident from Ext.P17 it can be seen that the 1[st] accused did not move his little finger to salvage the deceased, though fire spread over to her cloths and the above conduct of the accused itself is sufficient to prove his guilt and therefore, the findings of the trial court is fully justified and no interference is warranted. The learned Public Prosecutor further pointed out that the incident that taken place on 17.7.2003 is the continuation of the incident which taken place on 8.6.2002 for which there is ample evidence including that of Ext.P10 wound certificate and the evidence of PW10, who examined the deceased connected with the incident on 8.6.2002. Thus, according to the learned Public Prosecutor, the accused continuously subjected the victim for harassment and the contemporary documents would positively prove the said fact and the conduct of the 1[st] accused connected with the incident on ## **Crl.A.Nos.210 & 449 of 2011** ## **:-12-:** 17.7.2003 would further substantiate the prosecution allegation against the accused. Therefore, according to the learned Public Prosecutor, the appellants deserve no leniency and no interference is warranted. 14. I have carefully considered the arguments advanced by Sri.C.P.Peethambaran, learned counsel appearing for the appellants and Smt.Lowsy, the learned Public Prosecutor. I have perused the judgment of the trial court meticulously and gone through the evidence and materials on record. 15. The specific case of the prosecution is that the deceased Sheela was married by the first accused and while they were residing in the house of the first accused in Ward No.2 of the Kuthiathode Panchayath, the accused three in number used to quarrel with the deceased and subjected her to mental and physical cruelty as the deceased questioned the first accused regarding his connections with other ladies and thus, the accused in furtherance of their common intention subjected Sheela, the deceased to cruelty. It is the further case of the prosecution that on 9.6.2002, accused Nos.1 and 2 voluntarily caused hurt to the deceased whereupon she was hospitalised and treated and on account of the physical and mental cruelty and harassment, continuously meted out against the said Sheela by the accused, on 17.7.2003 at about 10 a.m., the said Sheela attempted to **Crl.A.Nos.210 & 449 of 2011** ## **:-13-:** commit suicide by pouring kerosene on her body and the first accused abetted to commit suicide by setting her ablaze from the fire which he lighted in the oven and accidentally, fire from the hearth caught on Sheela's dress and she sustained several burn injuries and as a result of which, at about 6.55 a.m. on 23.7.2003, she succumbed to her injuries. Thus, the accused have committed the offences punishable under Sections 498A,306 read with Section 34 of I.P.C. I have already referred to the evidence and materials available on record and also the rival pleadings advanced by the defence counsel as well as the learned Public Prosecutor. In the light of the above referred rival pleadings and in the light of the materials and evidence on record, the question to be considered is whether the findings of the learned Judge of the trial court particularly under point Nos.1 to 4 are legally and factually correct and justified. Though the trial court considered the four points, which are raised for consideration together, according to me, it is better and convenient to consider the first question separately from points 2 to 4 since the first point is connected with the offence under Section 498A of IPC and points 2 to 4 are connected with the offence punishable under Section 306 of I.P.C. 16. From the available evidence and materials, it can be seen that the prosecution had succeeded in establishing certain facts, and as correctly ## **Crl.A.Nos.210 & 449 of 2011** ## **:-14-:** held by the trial court in paragraph 15 of the judgment, the prosecution has succeeded in proving the fact that the first accused has married the deceased on 29.11.2001 and the said finding of the learned Judge is correct in view of the evidence of Pws.1 to 6,8,9 and PW20 and as per the documentary evidence Ext.P20(a). The prosecution has also proved that the wife of the first accused Sheela died due to burn injuries on 23.7.2003, as a result of the burn injuries sustained by her while she was residing in the house of the accused on 17.7.2003. As per the evidence on record, it is proved that as a result of injury sustained by the deceased on 17.7.2003, she was initially taken to the Taluk Hospital,Cherthala wherein she was attended by PW11, but she was referred to Medical College Hospital, Alappuzha. Ext.P11 is the wound certificate issued by PW11, the Doctor attached to the Taluk Hospital, Cherthala. Thus, while the deceased was undergoing treatment in the Medical College Hospital, she succumbed her injuries on 23.7.2003 and subsequently, PW12 conducted autopsy and Ext.P12 is the postmortem certificate issued by PW12. The evidence of PW12 and Ext.P12 document would show that Sheela died as a result of the first and second degree burn. It is also relevant to note that PW14, the Tahsildar of Cherthala Taluk conducted the inquest on the body of the deceased Sheela on the basis of the request made by PW19 and Ext.P7 is the inquest report. Thus, it can be ## **Crl.A.Nos.210 & 449 of 2011** ## **:-15-:** seen that the deceased was the legally married wife of the first accused and they were residing together till 17.7.2003 and the wife of the first accused died as a result of the sever burn injuries sustained by her on 17.7.2003. 17. Therefore, the first question to be considered is whether the prosecution has succeeded in proving its allegation that in furtherance of their common intention, the accused subjected the deceased Sheela to cruelty so as to attract Section 498A of I.P.C. against them. At the outset, it is to be noted that though the prosecution has arrayed three persons as the accused, the third accused, who is the sister of the first accused, is acquitted by the trial court, of all the charges levelled against her. In order to consider the above point and point Nos.2 to 4 formulated by the court below, certain common facts are necessary and those facts, as proved by the prosecution, are as follows:- 18. The marriage between the first accused and the deceased was not an arranged one and as they fell in love, the deceased eloped along with the first accused as the parents of the deceased were not agreeable for such relation and thereafter, the deceased was residing along with the first accused in his home without undergoing a legal marriage and while so, a baby was born out of their co-habitation. After the birth of the baby, the marriage was registered on 29.11.2001 as evident from Ext.P20(a) and the ## **Crl.A.Nos.210 & 449 of 2011** ## **:-16-:** said facts were proved through the depositions of PWs.1,6,8,9 and 20. According to the prosecution, while the deceased was residing along with the first and second accused, she was subjected to cruelty and harassment. To prove the above allegation, the prosecution mainly depends upon the evidence of PWs.5,6 and the documentary evidence such as Ext.P10 and Ext.P6 complaint dated 14.6.2002. It is relevant to note that though the prosecution has produced Ext.P13 dying declaration of the deceased, which are proved through PW17 and PW13 supported by Exts.P16 and P17 documents, in the dying declaration, there is no mentioning about the incident which is allegedly taken place on 8.6.2002 which is the subject matter of Ext.P6 complaint. Now let us examine whether the prosecution has succeeded in proving the incident which is alleged to have taken place on 8.6.2002. 19. Though I have repeatedly gone through the deposition of PWs.5 and 6, their evidence is not specific regarding the alleged incident on 8.6.2002. These witnesses have no direct knowledge regarding the alleged incident on 8.6.2002. According to them, what they have deposed before the court is on the basis of what gathered from the deceased. But, on a scanning of the evidence of PWs.5 and 6, it can be seen that their evidence is only general in nature and they failed to reproduce the words of the ## **Crl.A.Nos.210 & 449 of 2011** ## **:-17-:** deceased as disclosed by herself to them. It has already come out in evidence that PWs.5 and 6 were not pleasant with the affairs between the deceased and the first accused and their relationship was not cordial and their animosity can be easily gathered from their own words. Therefore, it can be seen that the evidence of PWs.5 and 6 are not specific and not sufficient to inspire the confidence of the court, especially when they failed to reproduce the words of the deceased with respect to the alleged harassment or cruelty that she allegedly faced during her stay along with the accused. Another important piece of evidence relied on by the prosecution to prove the incident allegedly taken place on 8.6.2002 is Ext.P6 complaint allegedly given by the deceased. On a careful scrutiny of Ext.P6, it can be seen that no details are given therein with respect to the cruelty alleged from the part of the accused. In the first paragraph of the complaint, what is stated is as follows:- “ സജ�വന എനയ�ള�� ക�ര��ാ�യന� എന അയ�ള�ട� അമയ�� ക��� എടന മ�രകമ�� വ�ധ� യ�ട��ര� ക�രണവ�മ�ല�ട� ദ ദ!�പദ വ� + ” ട$യ�കയ�� വ�ട�ല ന�ന�� ഇറക�വ���കയ�� ട$യ ��. ## (underline supplied) Except the above bare allegation against the second accused, no other complaint or overt act alleged is against the second accused. Though it is ## **Crl.A.Nos.210 & 449 of 2011** ## **:-18-:** stated that grievous injury was inflicted on her on 8.6.2002, Ext.P10 wound certificate would show that she had sustained only minor injury. Thus, on a scanning of Ext.P6, it can be seen that there is no specific allegation against accused Nos.1 and 2 and no specific incident with overt act against the accused are stated in Ext.P6. In this juncture, it is pertinent to note that in Ext.P5, on the basis of which the present crime is registered, what is stated by CW1 the father of the deceased is as follows:- “ ദപസവത�ന� ദ0ഷ� സജ�വട2 അമയ �ട�യ�� സദ!� ര�യ�ട�യ�� ന�രദ 0 ദപക�ര� ന�രനരമ�യ� മകടള മര4�ക�കയ��.....” [underline supplied ] So in his complaint also, there is no allegation that second accused had subjected the deceased to any sort of crime or cruelty. As I indicated earlier, in Ext.P10, what is noted by PW10 are only one abrasion on the back of the chest and contusion on the right side of the chest and in the left buttock. The alleged cause of injury is stated as follows:- “8.6.2002 ര�വ�ട9 മ��ല (9 AM ) മ��ല വവക�ട+ 3 മണ� വടര ഭരത�വ�� ഭരത�വ�ട2 അമയ�� ക��� ദ ദ!�പദ വ� ഏല>�ച��ല വച+” No specific overt act is mentioned against first and second accused. The above evidence, which is pressed into service by the prosecution, according to me, is insufficient to hold that the deceased was subjected to cruelty, ## **Crl.A.Nos.210 & 449 of 2011** ## **:-19-:** especially when the injuries noted were only contusion and abrasion. 20. It is also relevant to note that even according to the prosecution, though a crime was registered on the basis of Ext.P6, the matter was subsequently settled through mediation and thereafter, the deceased was residing along with accused Nos.1 and 2 in the house of the first accused. The prosecution has no case that after such settlement, any untoward incident has taken place and any complaint of harassment or cruelty against the deceased was reported or came to the notice of the prosecution. In this juncture, it is pertinent to note that in Ext.P13 dying declaration, the deceased has not stated anything about the alleged incident on 8.6.2002 and therefore, it is to be presumed that she was not having any grievance with respect to such incident. Therefore, according to me, even if it is held for the purpose of arguments sake that there was an incident on 8.6.2002, the subsequent conduct of the deceased residing along with accused Nos.1 and 2 after the settlement of the dispute would show that she has condoned the same. Therefore, she was not having any complaint about the incident when she gave Ext.P13 dying declaration. Thus, according to me, the prosecution has miserably failed to prove that the deceased was subjected to cruelty and therefore, the findings of the trial court under point No.1 are absolutely incorrect and unfounded. Therefore, I cannot approve the finding that the ## **Crl.A.Nos.210 & 449 of 2011** ## **:-20-:** accused has committed the offence punishable under Section 498 A of I.P.C. 21. The next question to be considered is about the correctness and legality of the findings of the trial court under point Nos.2 and 4. All the above points are connected with the allegation against the accused that they have committed the offence punishable under Section 306 of I.P.C. In order to appreciate the prosecution allegation and the evidence on record and the findings of the court below, it will be beneficial to have a look at Section 306 of I.P.C. which reads as follows:- “ _306. Abetment of suicide.-- If any person commits suicide, whoever abets the 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.”_ _(underline supplied)_ Learned counsel for the appellant, after inviting my attention to the decision in **Gangula Mohan Reddy** v. **State of Andhra Pradesh** [(2010)1 SCC 750] of the Apex Court, it is submitted that the prosecution has miserably failed to prove the essential ingredients of Section 306 especially in the light of the facts and circumstances and evidence on record and therefore, the conviction under Section 306 of I.P.C. recorded by the trial court against the first accused is not legally and factually sustainable. On the other hand, the learned Public Prosecutor has submitted that the evidence on record ## **Crl.A.Nos.210 & 449 of 2011** ## **:-21-:** including the dying declaration of the deceased ,which is proved as per Ext.P13, would show that the first accused has instigated the deceased to commit suicide and the first accused has taken some positive steps so as to enable the deceased to commit suicide and the fact that the first accused has not made any attempt to save the deceased from the fire, are sufficient to show that the first accused has abetted and aided in committing the suicide by the deceased and therefore, the trial court is fully justified in its finding in favour of the prosecution and against the accused under Section 306 of I.P.C. 22. Now let us examine the evidence on record. It is relevant to note that Ext.P19 F.I.R. was registered by PW19 on his receipt of Ext.P5 complaint from the S.P.Alappuzha which was allegedly given by CW1, the father of the deceased. It is relevant to note that Ext.P5 was proved through PW5, the wife of CW1 since CW1 is no more. During the chief examination of PW5, she has stated that അദ>�ള മകള പറഞ�ണ+ ഞ�ന�� ഭരത�വ�� വ�വര� അറ�ഞ�+ . Magistrateഉ� ഞങള�ട� സ�ന�ധ�ത�9�ണ+ ടമ�ഴ� എ��ത�+. But the evidence of PW17 would show that when he recorded Ext.P13, no other persons were present. In the chief examination, PW5 has further stated that P5 ഞ�ന വ�യ�ച� ദന�ക�യ�ട�ല. മകള എദന��+ പറഞ ക�ര�� ഞ�ന ഭരത�വ�ദന��� **Crl.A.Nos.210 & 449 of 2011** ## **:-22-:** പറഞ�ല. ഭരത�വ+ അവടള ക�ണ�ന�� സങ�� ക�രണ� വന�ല. So the deposition of PW5 would show that CW1 has no direct knowledge about the incident that had taken place on 17.7.2003 and he had no occasion to hear what the deceased has stated to PW5 or the Doctor. So, the very basis of the initiation of investigation itself is improper and under doubt. It is also relevant to note that PW5 has also failed to reproduce the words which are claimed to have told to her by the deceased. When PW17, the Judicial First Class Magistrate-II, Alappuzha, who recorded Ext.P13 dying declaration of the deceased, examined, he had deposed before the court that when he recorded Ext.P3, no other person was present and therefore, the claim of PW5 that she had heard about what spoken to by the deceased to the Magistrate cannot be believed, especially when PW5 is inimical to the accused. Thus, the only evidence available regarding the entire incident that happened on 17.7.2003 is that of the dying declaration i.e., Ext.P13 of the deceased recorded by PW17. As I indicated earlier, on the basis of the request made by PW19, the Chief Judicial Magistrate, Alappuzha issued Ext.P16 by which PW17 the Judicial First Class Magistrate-II, Alappuzha is intimated to record the dying declaration of the deceased. Before and after recording Ext.P13 dying declaration, PW13 the Lecturer, Surgery Department of Alappuzha Medical College Hospital has examined the ## **Crl.A.Nos.210 & 449 of 2011** ## **:-23-:** injured and certified her fitness to give the dying declaration and thus, PW17 recorded Ext.P13 dying declaration and thereafter, PW17 as per Ext.P17 forwarded Ext.P13 to the Judicial First Class Magistrate Court-I, Cherthala. Now let us examine Ext.P13 dying declaration. A translation of the statement of the deceased given to the last question in Ext.P13 is given under for convenience. 23. According to her, there is one lady namely, Sakunthala on the northern side of her husband's house. She further stated that her husband had asked something to that woman and on knowing about it, when she questioned her husband, he took quarrel with her. It was also stated that in the morning of the previous day also, there was quarrel on the same ground. She also stated that her husband illtreated her by holding her neck and at that time, she pulled his shirt's pocket and tore it and thus, relieved herself from his clutch. According to her, she was told that when he comes back, she should not be seen there and he asked her as to why she couldn't die by eating something. According to her, the above words were intolerable and thus, she poured kerosene oil on her head. On seeing the same, he went to her house along with the child and the child was entrusted with her mother. According to her, out of fear, the child had not gone to the hands of the mother and he came back to the house with the child. She was then lying **Crl.A.Nos.210 & 449 of 2011** ## **:-24-:** in the pool of kerosene oil and seeing her, he asked her why she didn't die so far and he further told her that he had returned under the impression that she would have died and he again asked her to die. Thereafter, the husband went to the kitchen along with the child and in the meanwhile, she arose and reached the kitchen. She said that she would kill her son too and then, the husband reprimanded that the child shall not be touched. The husband again went to her house along with the child and came back after entrusting the child there and he again asked her, why she didn't die? Then, she replied that the match box kept in her hands was dripped in the kerosene oil and further said that she would commit suicide only with her son. As per her statement, by that time the kerosene lamp was lighted by her husband, the cudjan leaves were also lighted from the lamp and her husband put the same in the oven, on which a pot was placed for boiling water to prepare steam rice cake. Then, she was told by her husband that there was sufficient fire in the oven so that she can take it and light herself up. According to her, she replied that she wanted to die with his hands and at that time she was standing adjacent to the oven. Then, the fire from the oven accidentally spread over to her nighty. She further stated that, she asked her husband Saji to pour some water over her, but without hearing the same, he ran out. She stated further that in the meanwhile, the flame spread over and she **Crl.A.Nos.210 & 449 of 2011** ## **:-25-:** jumped into the canal on the eastern side. 24. While evaluating and appreciating the dying declaration of the deceased, it is worthful to consider certain facts, which lead to the incident. Both the accused and the deceased are belonging to the scheduled caste and coming under the lowest strata of the society. Both of them were in love, which finally ended in their marriage and in that wedlock, she gave birth to a child. As I found earlier, though there was an incident on 8.6.2002. that was settled through mediation and they were residing together. In Ext.P13 dying declaration, the deceased has not sated about those incidents. According to the appellants, particularly the first accused, the deceased, during previous occasions, used to threat him by saying about committing suicide. 25. Thus, on a close scrutiny of the dying declaration of the deceased, it can be seen that she had no complaint or grievance about the incident allegedly taken place on 8.6.2002, especially when she had condoned such incident and was residing along with the accused on the basis of settlement. In the dying declaration also, her only concern is about the conversation of her husband with their neighbour, who is a lady. The deceased has no complaint that the first accused has got any illicit or immoral relationship with such a lady. In the light of the facts, particularly with respect to the **Crl.A.Nos.210 & 449 of 2011** ## **:-26-:** love affairs of the accused and the deceased prior to the marriage, it can be safely concluded that the deceased was highly possessive and she is not happy in her husband talking with other ladies, but the same cannot be treated as a reason for committing suicide. From Ext.P13, it can be seen that the husband had gone two occasions after the quarrel and though there was chance for committing suicide, she was not prepared for the same. The words spoken to by the deceased as seen in Ext.P13 are very relevant. She stated therein, “ എട2 ദമ�ടനയ�� ക��� ഞ�ന ടക�ല��. ” She had also stated that “ഞ�ന എട2 ദമ�ന�മ�യ�ദട $�കത�ളള� എന+ പറഞ�”As per Ext.P13 statement, when the husband pointed out the fire in the oven, she had stated “.......എന�ക+ �ട2 വകടവച+ �ടന $�കണ� എന� പറഞ�..........” From the above facts and the words spoken to by the deceased, it can be seen that she has not finally decided to commit suicide. On evaluating the above words spoken to by the deceased in the background of her relationship with the first accused who is her husband, it can be seen that her attempt was to threaten the accused. The accused has also got a case that in the previous occasions, the deceased had tried to threaten him by saying that she will commit suicide. So, the above approach and conduct of the deceased is not inconsistent with the innocence and the defence of the first accused. 26. The most material and relevant fact that borne out from Ext.P13 ## **Crl.A.Nos.210 & 449 of 2011** ## **:-27-:** dying declaration is that the fire was spread over to the nighty of the deceased accidentally when she was standing adjacent to the oven. Ext.P13 statement and the evidence of PW17 positively confirm the fact that the fire was not voluntarily set by the deceased herself. PW17, the Magistrate, who recorded Ext.P13 during cross-examination, has stated that P13-ല Sheelaയ�ട� ദ !ത+ ആടരങ�9�� മടII ഒഴ�ക�കദയ� �� വച��ദയ� പറഞ�ട�ല. മര�ച Sheela സKയ� ഒഴ�ച��യ �� പറഞ�ട�ല .യ� �ശ�കമ�യ� �� പ���ച��യ�ട�ണ+ പറഞ�+. So Ext.P13 dying declaration and the evidence of PW17 would show that there is no evidence to prove as to who poured kerosene on the deceased and the deceased has no case that she herself and voluntarily set fire. On the other hand, it is crystal clear that the fire was accidentally spread over to the nighty worn by the deceased. As per Ext.P13 and according to PW17, the deceased has not stated that she herself set fire and the factual situation before the incident which I indicate earlier and the words allegedly spoken to by the deceased before spreading the fire to her nightly, would show that the deceased has no intention to commit suicide. 27. Now let me examine whether the above referred evidence attracts the essential ingredients of Section 306 of I.P.C. On a bare reading of Section 306 of I.P.C., once can understand that in order to attract the ## **Crl.A.Nos.210 & 449 of 2011** ## **:-28-:** penal liability, it has to be pleaded and proved that the accused, who faced the charge, has abetted the commission of such suicide and the person so abetted has committed suicide. In the decision relied on by the learned ' counsel for the appellant in Gangula Mohan Reddy s case [(2010)1 SCC 750], in paragraph 7 of the said decision, the Honourable Apex Court has held as follows:- “7. _The word “suicide” in itself is nowhere defined in the Penal Code, however its meaning and import is well known and requires no explanation. “Sui” “ ” “ ” “ ” means self and cide means killing , thus implying an act of self-killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.” (underline supplied)_ 28. In the light of the foregone discussion about the evidence adduced by the prosecution, especially on a consideration of Ext.P13, the dying declaration of the deceased and the evidence of PW17 would show that in the present case, the fire was spread over to the nighty of the deceased by accidental. For the reason which I mentioned earlier, it can be safely concluded that the deceased has not intended to commit suicide and she has not taken such a decision finally, before the fire spread over to her dress accidentally and therefore, the deceased herself has not committed self-killing. Therefore, according to me, Section 306 is attracted against the first accused in the present case. ## **Crl.A.Nos.210 & 449 of 2011** ## **:-29-:** 29. It is also relevant to note that from the facts and circumstances involved in the case and especially in the light of the statement that contained in Ext.P13, it is to be noted that even according to the deceased, the accused set fire in the oven so as to boil the water which was placed thereon for the preparation of steam rice cake. According to the deceased, though she has informed the accused that the matchbox was wet, thereafter even though according to the deceased, the accused lighted the lamp, he did not hand over the match box to the deceased in aid of committing suicide. It is also relevant to note that even according to the deceased, as per Ext.P13, the first accused has gone twice out of their house and came back. It is further relevant to note that even if the entire situation as stated in Ext.P13 is taken as true, it can be seen that even the first accused simply ignored the words spoken to by the deceased as usual, and he tried to boil the water for preparing steam rice cake. According to me, the above approach of the first accused is quite natural since according to him, previously also, she had threatened him of committing suicide. As I indicated earlier, if he had intention to commit the offence under Section 306 of I.P.C., he could have very well handed over the match box which he had used for lighting the kerosene lamp or he could have handed over the lighted kerosene lamp to the deceased in aid of committing suicide. The above fact itself is sufficient ## **Crl.A.Nos.210 & 449 of 2011** ## **:-30-:** to hold that the accused has no mens rea to commit the offence under Section 306 of I.P.C., so as to instigate or aid the deceased to commit suicide and therefore, Section 306 of I.P.C. is not attracted against the first accused, especially in the light of the decision of the Apex Court in **Mohan** v. **State of Tamil Nadu** [2011(2) KLT SN 59 (C.No.78)SC. 30. In this juncture, it is also relevant to note that regarding the incident, alleged by the prosecution, that had taken place on 17.7.2003, there is no reliable evidence and the incident, which is allegedly taken place on 8.6.2002, has no proximity or nexus with the incident that had taken place on 17.7.2003. More over, even according to the prosecution, the dispute, according to me, the prosecution has miserably failed to prove and establish that the deceased herself committed suicide as instigated or aided by the first accused and accused Nos.1 and 2 are subjected to the deceased for cruelty or harassment and the deceased has committed suicide as a result of such harassment. 31. In the absence of any positive evidence that the accused has intention to commit the offence under Section 306 of I.P.C and where the prosecution has miserably failed to prove that the deceased herself committed suicide and whereas the evidence on record shows that the reason for the setting of fire to the body of the deceased was accidental, ## **Crl.A.Nos.210 & 449 of 2011** ## **:-31-:** according to me, the prosecution cannot press into service Section 113 A of the Evidence Act to presume that the accused has abetted the deceased to commit suicide and therefore, the finding of the learned Judge of the trial court that contained in para 36 of his judgment is unwarranted and unfounded. 32. In the light of the above discussion and findings, I am of the view that the prosecution has miserably failed to prove and establish the allegation beyond reasonable doubt against the accused that they have committed the offence punishable under Section 498A and 306 of I.P.C. and accordingly, the conviction recorded by the trial court against them under Section 498 A and 306 of I.P.C. are set aside. 33. In the result, Crl.A.No.210 of 2011 filed by the first accused is allowed and the conviction and sentence imposed against him under Section 498 A and Section 306 of I.P.C. read with Section 34 I.P.C. by the trial court vide judgment dated 29.1.2011 in S.C.No.689 of 2004 is set aside and he is set at liberty and consequently, he is entitled to get release from the jail forthwith if he is not required in any other case. Accordingly, Crl.A.No.449 of 2011 preferred by the second accused is allowed and the conviction and sentence imposed against the second accused under Section 498A of I.P.C. read with Section 34 I.P.C. is set aside and the bail bond executed by her is ## **Crl.A.Nos.210 & 449 of 2011** ## **:-32-:** cancelled and she is set at liberty. Accordingly, both the appeals are allowed. As the appeal preferred by the first accused, i.e., Crl.A.No.210 of 2011 is allowed, acquitting him, he is entitled to get release from the jail forthwith if he is not required in any other case and therefore, the Registry is directed to send gist of this judgment of the Superintendent of Central Prison, Thrissur for appropriate action. ( **V.K.MOHANAN** ) Judge. pm/MBS/