SASI @ SASIDHARAN and THAMBAYI AMMA v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P. BHAVADASAN** **THURSDAY, THE 17TH DAY OF OCTOBER 2013/25TH ASWINA, 1935** ## **CRL. A.No. 1406 of 2003 ( )** ## **---------------------------** ## **AGAINST THE JUDGMENT IN SC NO.14/2003 OF ADDL.SESSIONS JUDGE (ADHOC-II) KASARAGODE DATED 06-07-2003** **APPELLANTS/ACCUSED:** **----------------------------------** **1. SASI @ SASIDHARAN, 27/01 S/O. KUNHAMBU NAIR CHERAPAIKAM, BEDAKAM VILLAGE.** **2. THAMBAYI AMMA, 70/01 W/O. KUNHAMBU NAIR CHERAPAIKAM, BEDAKAM VILLAGE.** **BY ADVS. SRI. M.K. DAMODARAN (SR.) SRI. SOJAN MICHEAL SRI. GILBERT GEORGE CORREYA** ## **RESPONDENT/COMPLAINANT:** **-------------------------------------------** **STATE OF KERALA - (S.H.O. BEDAKAM POLICE STATIONCRIME NO.74/01) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** sp ## P. BHAVADASAN, J. .................................... Crl.Appeal No. 1406 of 2003 ............................................... Dated this the 17[th] day of October, 2013 ## JUDGMENT Karthiayani, the wife of the first accused set herself on fire on 07.05.2001. She was rushed to the hospital and she remained alive till 13.5.2001, on which day she breathed her last. 2.Ext.P8 First Information Statement was laid by the brother of the deceased namely P.W.12. On requisition by the investigating officer on 8.5.2001, P.W.11 recorded the statement of the victim namely Ext.P2. Initial investigation was done by P.W.10, he prepared Ext.P7 scene mahazar. Subsequent investigation was taken over by P.W.13. He recorded the statement of witnesses, arrested the accused and during the investigation according to him offence under Section 306 of IPC was also committed and therefore he filed 2 Crl.Appeal No. 1406 of 2003 report to that effect incorporating the said provision also. After completion of investigation he laid charge before court. 3.The court below, before which, final report was laid took cognizance of the offence. Finding that the offence is exclusively triable by a court of Sessions, the said court committed the case to Session Court under Section 209 Cr.P.C. 4.The Sessions Court made over the case to Additional Sessions Court (Adhoc-II), Kasaragod for trial and disposal. The said court on receipt of records and appearance of the accused framed charges for the offences punishable under Sections 498A and 306 of IPC read with Section 34 of Indian Penal Code. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had P.Ws.1 to 14 examined and Exts.P1 to P12 were marked. After the 3 Crl.Appeal No. 1406 of 2003 close of prosecution evidence, the accused was questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances put to them and maintained that they are innocent. The first accused stated that he and his deceased wife were leading a happy matrimonial life and P.W.12, who was on inimical terms was responsible for implicating him. The 2[nd] accused too stated that she had no reason to quarrel with her daughter-in-law and they are living a very happy life and that she has not committed any act, which would constitute an offence. Finding that the accused could not be acquitted under Section 232 Cr.P.C, they were asked to enter on their defence. They chose to adduce no evidence. - 5.The trial court mainly relying on the evidence of P.W.8, P.W.12 and P.W.11 and Ext.P2 came to the conclusion that the offences under Sections 498A and 306 of IPC have been made out against the accused persons and 4 Crl.Appeal No. 1406 of 2003 they were found guilty of the same. Each of them was, therefore, sentenced to undergo rigorous imprisonment for one year and to pay a fine of `5,000/- for the offence under Section 498A with a default to undergo two months and they were also sentenced to rigorous imprisonment for three years and a fine of `5,000/- each for the offence under Section 306 with a default clause of two months. The said convictions and sentences are assailed in this appeal. - 6.At the time when the appeal was taken up for hearing, the learned counsel appearing for the appellants produced the extract of the register of births and deaths which showed that the 2[nd] accused died on 23.10.2010, if that be so, the charge against her stands abated. - 7.The learned counsel appearing for the appellant contended that the reliance placed on the evidence of P.W.1 and Ext.P2 by the court below to come to the 5 Crl.Appeal No. 1406 of 2003 conclusion that first accused has treated the victim cruelly, which had driven her to commit suicide is without any justification and basis. No details of the acts alleged to have been committed by the first accused is mentioned anywhere, by any of the witnesses nor is it stated in Ext.P2 statement said to have been given by the victim. In fact, the learned counsel drawing attention of this Court to the last question put by the learned Magistrate contended that it is clear from the answer given to the said question that the husband had no role to play in the unfortunate incident. 8.The learned counsel pointed out that, true P.W.12, who had occasion to furnish Ext.P8 First Information Statement had stated during the examination that the accused used to drink and assault the victim. But this statement given by P.W.12 at the time of evidence, according to the learned counsel is conspicuously 6 Crl.Appeal No. 1406 of 2003 absent in Ext.P8 and so also in his subsequent statements given to the investigating officer. It is, therefore, clear according to the learned counsel that this is a subsequent embellishment and development made at the time of evidence. That cannot be given much credit. 9.With regard to the ingredients necessary to attract the offence under Section 306, the learned counsel relied on the decision reported in Mankamma v. State of Kerala (2009) 10 SCC 164 and S.S.Chheena v.Vijay Kumar Mahajan and Another (2010) 12 SCC 197. The learned counsel also pointed out that the court below was not justified in holding that presumption under Section 113A of the Indian Evidence Act, 1872 is available to the facts and circumstances of the case. More over, it is not a presumption of law, but it is only a presumption of fact and unless the ingredients are established for attracting the said presumption, it is not appropriate from the part 7 Crl.Appeal No. 1406 of 2003 of the court to have drawn presumption under Section 113A. For the said preposition, the learned counsel relied on decision reported in Anand Kumar v.State of Madhya Pradesh (2009) 3 SCC 799. 10.As regards the findings under Section 498A the learned counsel pointed out that even assuming to all what the prosecution says is true, the only evidence is to the effect that the first accused had treated the victim cruelly. But the details of the same are not available from the evidence on record. It is stated that at the time of giving statement to the learned Magistrate, victim stated that she used to put up with the treatment meted out to her by the husband. This answer is highlighted as acts of cruelty. It is too thin an item of evidence. For the above preposition, the learned counsel relied on the decision reported in Sohan Raj Sharma v. State of Haryana ( 2008) 2 SCC 215. 8 Crl.Appeal No. 1406 of 2003 11.The learned counsel also drew attention of this Court to the fact that neither P.W.8 nor P.W.7, the sister of the deceased and the mother of the deceased respectively says about any act having been committed by the first accused. In fact there is no evidence furnished by P.W.7 at all that the victim was leading unhappy matrimonial life in the matrimonial house. The evidence of P.W.8 is only to the effect that the brother of the first accused had pledged gold ornaments of the victim and when she wanted to retrieve the same, he had not done so. It is significant to notice according to the learned counsel that no acts of cruelty what so ever is attributed to the first accused by either of these witnesses. 12.It is therefore, contended that the conviction and sentence for the offences under Sections 498A and 306 cannot stand. 13.Per contra the learned Public Prosecutor contended Crl.Appeal No. 1406 of 2003 9 that the findings of the court below are based on evidence on record and the evidence of P.W.12 and Ext.P2 are sufficient in law to come to the conclusion that the first accused used to treat the victim cruelly and that had driven her to commit suicide. There is no reason as to why one should disbelieve the statement given by the victim to the learned Magistrate, where she has stated that she used to put up with the ill-treatment meted out to her by the first accused. That is sufficient to show that she was ill-treated. Further relying on the evidence of P.W.12 also, it is contended that the brother-in-law of the first accused even at the time of furnishing Ext.P8 F.I.S had indicated that the victim have driven to commit suicide due to the ill-treatment by the accused persons. At the time of evidence he was more specific and he has stated according to the learned Public Prosecutor that the first accused used to come home drunk and used to manhandle the victim regularly. Even assuming according to the learned 10 Crl.Appeal No. 1406 of 2003 Public Prosecutor that the offence under Section 306 of IPC may not be made out in the facts and circumstances of the case, there is no reason to interfere with the findings that the offence under Section 498A of IPC has been made out. Accordingly, it is contended that no interference is warranted with the findings of the court below. 14.The records indicate that the matrimonial life between the victim and the first accused was short one running over a period of only 3 ½ years. They had two female children. It is not disputed that on 7/5/2001 at about 4 p.m. the the victim had set herself on fire and she was rushed to the hospital by none other than her husband, the first accused along with others. She remained under treatment till 13.5.2001 on which day she succumbed to the burn injuries. P.W.12 the brother of the deceased had given Ext.P1 F.I.S based on which crime was registered as per Ext.P9 F.I.R. On requisition by the 11 Crl.Appeal No. 1406 of 2003 investigating officer, P.W.11, JFCM concerned had proceeded to the hospital and recorded Ext.P2 statement furnished by the victim. That the victim died due to burn injuries cannot be disputed. - 15.The lower court seems to have placed considerable reliance on the evidence of P.W.12 and Ext.P2, the statement set to have been given by the victim. The lower court also seems to have drawn presumption available under Section 113A. - 16.The evidence regarding the ill-treatment meted out to the victim is sought to be established through the evidence of P.Ws.7, 8 and 12. P.W.7 is none other than the mother of the victim and P.W.8 her sister and P.W.12 her brother. 17.It is true that in Ext.P8 F.I.S set to have been furnished by P.W.12 on 8.5.2001, he has stated that whenever the Crl.Appeal No. 1406 of 2003 12 victim used to come to their house the accused persons are suspicious about her conduct and used to quarrel with her and assault her. 18.P.W.7, as already stated is the mother of the victim. She speaks about the marriage of her daughter with the first accused and that two children was born to them. The evidence of P.Ws.7, 8 and 12 show that after staying in the matrimonial house for a long time the couple shifted their residence to a lean to, in the same house in another portion of which another brother of the first accused was residing. The evidence of P.W.7 is to the effect that her daughter Karthiayani often used to come to her house but on none of those occasions she had complained of any ill-treatment by the accused persons. She would also say that she does not know the reason as to why her daughter set herself on fire. 19.P.W.8 as already stated, is the sister of the victim. Her 13 Crl.Appeal No. 1406 of 2003 version is that the second accused was always suspicious about the victim and that compelled her to take a separate residence. She would also say that even though the family members of the victim offered to put up a house for the couple, the first accused was not willing to accept such an offer. She would say that a gold chain belonging to the victim was pledged by the younger brother of the first accused. Even though the victim wanted to retrieve the same, the brother of the first accused did not do so. She would say that her sister committed suicide due to that reason. 20.P.W.12 is the brother of the victim, who furnished Ext.P8 F.I.S. P.W.12 in his evidence has stated that his sister was driven to commit suicide because of the conduct of the accused persons. He would say that for no particular reason they used to find fault with her and whenever the victim used to come to the parental house she used to tell him that the first accused used to come Crl.Appeal No. 1406 of 2003 14 home drunk and physically assault her. - 21.It is strange to note that in the chief examination of P.W.12 the following answer was insisted : 15_)¢ ÄàÏÄß çºÞÆߺîçMÞZ ÍVJÞÕßæaÏᢠ¥NÏáæ¿ÏᢠÉàÁÈBZ ØÙßAÞX ÕÏîÞæÄ ØbÏ¢ ÎæHH ²Ýߺîí Äà æµÞ{áJß ÎøߺîÄÞæÃKí ÉùEá.ådÉÄßµæ{ ¥ùßÏÞ¢ 22.It is difficult to understand how such a question should have been permitted by the trial court. The statement is obviously extracted from the 161 statement of the witnesses and it was clearly inadmissible in evidence at all. 23.Apart from the above fact his assertion that the accused used to come home drunk and used to assault the victim is conspicuously absent in Ext.P8 and so also in his statement to the police officers. In fact P.W.13 who had occasion to take the statement of the 15 Crl.Appeal No. 1406 of 2003 witnesses, clearly says that no such statement was given to him by P.W.12. P.W.13 would also say that P.W.8 had also not told him that the brother of the first accused had pledged the gold ornaments and since he had not retrieved the same at the request of the victim, she had committed suicide. - 24.These statement given by P.Ws.8 and 12 therefore are embellishments and developments at the time of evidence and they have to be excluded from consideration. - 25.Except for vague statement given by P.W.12 that the first accused used to harass and ill-treat the victim, no specific incident of ill-treatment is spoken to by him. Much significance was given by the lower court to the statement made in Ext.P2 by the victim. The portion relied on by the lower court reads as follows : - (Q) : ÍVJÞÕí ÕÜïÄᢠ©ÉdÆÕßAáÎÞÏßøáçKÞ? Crl.Appeal No. 1406 of 2003 16 - (A) : ¥Äá ¾ÞX ØÙßÏíAáÎÞÏßøáKâ. 26.The lower court taking note of this statement along with the evidence of P.W.12 came to the conclusion that the offence under Section 306 and 498A are made out. Apart from the fact that whether the above statement is sufficient to such a conclusion the court below has omitted to note yet another statement of the victim which reads as follows : - (Q) : ÍVJÞÕᢠÎxÞæøCßÜᢠÈßæK ÌáÆíÇßÎáGßAÞùáçIÞ ? - (A) : §Üï. 27.One must remember that at the time of giving Ext.P2 statement, according to P.W.11, the JFCM who had recorded the same, the victim was fully conscious and oriented. Yet she did not specifically narrate any incident of ill-treatment by her husband nor does she has a case that it was due to his ill-treatment that she had taken the extreme step. However, she was more Crl.Appeal No. 1406 of 2003 17 specific regarding the conduct of the second accused to whom she attributes unnecessary quarrellings with her on the slightest pretext. 28.As already noticed except for vague statement of illtreatment there is no specific incidences of ill-treatment spoken to either by P.W.12, 8 or 7 or even by the victim while giving statement to P.W.11 on the part of the first accused. In fact at the risk of repetition one may notice that the act of ill-treatment and assault against attributed to the first accused remains confined to the testimony furnished by P.W.12 and also Ext.P8, which statement is given by P.W.12. ## 29.In the decision reported in [2010 (12) SCC 197] it was held as follows : 21. The learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh v. State of M.P. In Mahendra Singh the allegations levelled were as under: (SCC p. 731, para 1) Crl.Appeal No. 1406 of 2003 18 “I.... My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.” The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law. 25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeking no option and that act must have been intended to push the deceased into such a position that he committed suicide. ## 30.In the decision reported in [2009 (10) SCC 164] it was ## held as follows : 12. Considering the evidence of all these witnesses, it does not come out that Bindu committed suicide only and only Crl.Appeal No. 1406 of 2003 19 because of the so-called ill-treatment by the mother-in-law. What was that ill-treatment, how often she was ill-treatment by the mother-in-law has remained a mystery and has not been brought out in the evidence of any of these witnesses. 13. Learned counsel then took us firstly to Ext. P2 on which the prosecution has relied heavily. This appears to be in the nature of suicide note or to put it more correctly, it happens to be the last letter written by Bindu to her husband. The following contents of Ext. P2 are very relevant. “My beloved Prakasan, You need not worry, you should look after my child better. You have not done anything wrong but one thing is there, I asked you many times, shall I serve rice? Shall I serve tea? How may times, how many times I asked? You have not even said yes or no to me. I you do not like me, you can marry someone else, but you should look after my child properly, that is enough. You do not like me for the last may days. Now, I am not required. I must get this. My parents had told me that he may leave me after some time. But I did not obey their words and came on my own decision. Now, I am getting this gift. I got my child and now, I got a gift bigger that that. Prakasan, your need not obey me, need not fear me, you can live whatever way you like. When you came late at night, I would not disturb you by asking, where were you. Now onwards, my disturbance would not be there. Your are not able to do anything due to my existence. So I leave according to my wishes. Your mother is more horrible. Whatever I do is wrong for her. You should not give my child to her. You can give my child to Thankamma sister, I know that she will look after my child properly.” The only portion that we find in this letter against the accused Crl.Appeal No. 1406 of 2003 20 is that the accused has been called a horrible lady and that she did not approve of anything done by the deceased. The deceased had also written that the child should not be given in the custody of the accused. The letter clearly suggests that the deceased Bindu was completely disillusioned about her husband with whom she had eloped much against the will of her parents, and further that her husband did not take notice of her very existence and did not bother about her at all. 14. Insofar as the reference to the accused is concerned, the reference is by way of the instruction to her husband that her child should not be given in the custody of the accused as she was horrible. We do not think that this expression in such a strong expression that the courts could come to the conclusion that it was only and only because of the behaviour and the treatment of the accused to the deceased that she was driven to commit suicide. 15. This takes us to the other letter, namely, Ext. P-8 which has been proved by its author. When we see that letter it becomes clear that Prakasan, the husband of the deceased had become a drunkard. This is a letter written by a loving sister to her younger brother and his wife to mend their ways. She had advised her brother not to drink and not to start humiliating quarrels and fighting. True, it is stated to the effect that the mother should be comfortable and she should be made happy and the mother did not know how to talk and all of them had suffered the pain because of the talks of their mother. However, the daughter is careful enough to writ that it should not be taken seriously and nobody should feel about it, and being the mother she should be ignored. This witness has written in the letter that Amma may say something without knowing the consequence of the same. We do not think that Crl.Appeal No. 1406 of 2003 21 this letter which has painted the accused with black brush is sufficient to hold that she was so bad and she ill-treated the deceased so much that the deceased was driven to commit suicide only because of these factors. 16. In the matter of offence under Section 306 IPC we would expect much stronger evidence than what is presented. True it is that the evidence about what happens within the four corners of walls is not available to the investigating agency. But in this case, very strangely, the investigating agency has not proceeded against the husband against whom there was a very strong suspicion. The investigating agency has instead made a scapegoat of the old mother perhaps trying to rely on the ageold concept of bickerings between the mother-in-law and daughter-in-law. That is not the universal truth. The courts below should have therefore in such a matter appreciated the evidence and the finding should have been arrived at that but for such ill-treatment by the accused, the deceased would not have committed suicide. Such would be the standard of proof in the matter under Section 306 IPC. It is indisputably true that the court has to appreciate the evidence with an open mind and not being driven by the age-old concepts. 17. Applying all these principles we find that the evidence falls short of the required standard of proof. We are, therefore, not in a position to agree with the courts below insofar as their findings are concerned. In our opinion, the evidence in this case fell miserably short of the required standard of proof. In that view we would allow the appeal and acquit the accused. The judgments of the courts below are set aside and the accused is acquitted. Her bail bonds are cancelled. 22 Crl.Appeal No. 1406 of 2003 31.On going through the above decision, it can be seen that evidence required to attract Section 306 IPC is of a high standard. Mere bickering or family quarrels or any unpleasant acts on the part of the person concerned by themselves are insufficient to lead to the conclusion that there has been abatement to commit suicide. It is well settled law that the act complained of should have nexus to the suicide committed by the victim and there should be proximity between the two. Mere neglect or quarrel or unpleasant conduct on the part of the accused concerned by themselves are not sufficient to attract Section 306 IPC. The conduct should have been so severe and so strong that the victim should be left with no option but to commit suicide. The act of a delicate or a timid person on the slightest pretext cannot be a ground to invoke Section 306 IPC. 32.On evaluation of the evidence in this case, one can hardly see any conduct on the part of the first accused Crl.Appeal No. 1406 of 2003 23 which could be said to have driven the victim to commit suicide. In fact in Ext.P2 she says that her husband has never troubled her. It is clear that the evidence of P.W.7 assumes importance. Normally if there was ill-treatment by the first accused it would have only the natural course of events that the victim would have been disclosed it to her mother or at least to her sister, P.W.8. Neither of them speak about any ill-treatment on the part of the first accused. 33.Equally unfounded is the reliance placed on by the lower court on Section 113A of the Indian Evidence Act. The said provision reads as follows : 113A : Presumption as to abetment of suicide by a married woman. - When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Crl.Appeal No. 1406 of 2003 24 Explanation. - For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal code.(45 of 1860). 34.It is well settled law that establishment of one presumption cannot lead to another presumption. In order to invoke Section 113A of the Indian Evidence Act, it has to be shown that the suicide was committed within 7 years of marriage and that she had been subjected to cruelty. In the case on hand the first ingredient is satisfied but there is absolutely no evidence to show that she was treated cruelly by the first accused. In order to draw the presumption, the burden is on the prosecution to establish the above two facts, it is only on the proof of the two facts, presumption under Section 113A can be drawn and it is difficult to understand that findings of the court below that presumption under Section 113A can be taken aid of to conclude that the offence under Section 306 of IPC has been made out. 25 Crl.Appeal No. 1406 of 2003 35.Coming to the offence under Section 498A there is catena of decisions as to what constitutes cruelty. It is unnecessary to refer to all those decisions except the one referred to by the learned counsel for the appellant i.e., Amar Singh v. State of Rajasthan AIR 2010 SCC 3391. In the said decision, it was held as follows : A prosecution witness who merely uses the word “harassed” or “tortured” and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Sections 498A and 304B IPC. 36.A reading of Section 498A of IPC clearly shows that it is not the usual family bickerings or unpleasant situation in the family that is taken note of under Section 498A of IPC. That would be evident from explanation (a) to Section 498A of IPC. The conduct should be apart from being a wilful one be of a such a nature which is likely to drive her to commit suicide. It deals with conduct which is intolerable and unbearable. As already noticed even though P.W.12 says that his sister, the victim had Crl.Appeal No. 1406 of 2003 26 complained to him that her husband used to come home drunk and assault her for reasons already stated that cannot be believed. Even assuming that the statement referred to in Ext.P2 can be taken aid of, there is no details given as what exactly were the acts committed by the first accused, which made the life unbearable and miserable for the victim, which compelled her to commit suicide. In fact a reading of Ext.P2 as a whole would not show the complaint raised by P.W.12 that the victim was ill-treated cruelly by the first accused is true. At any rate in the absence of mention of any specific acts of cruelty meted out by the first accused, on the basis of general statements, it may not be proper to come to the conclusion that offence under Section 498A of IPC has been made out. - 37.For the above reasons, this Court is unable to confirm the conviction of the first accused for the offences under Sections 306 and 498A read with Section 34 of IPC. This 27 Crl.Appeal No. 1406 of 2003 appeal is allowed. The conviction and sentence passed against the first accused are set aside and it is held that he is not guilty of the offences alleged against him and he is acquitted of the said charges. His bail bond, shall stand cancelled and he is set at liberty. If he has paid fine amount, the same shall be refunded to him. sd/(P. BHAVADASAN, JUDGE) AMV/ /TRUE COPY/ P.A.TO JUDGE