Sasidharan (S/o Imbichunni) v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 CRL.A.No. 599 of 2003 ----------------------------(AGAINST THE JUDGMENT IN SC.370/2001 of 1ST ADDL.SESSIONS COURT, KOZHIKODE) .................... APPELLANT(S)/1ST ACCUSED: -----------------------------------------SASIDHARAN, S/O.IMBICHUNNI, KIZHAKOOTH, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/COMPLAINANT: ----------------------------------------------STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.JAIBY PAUL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 599 of 2003 ----------------------------------------** Dated this the 21st day of July, 2011 ## **J U D G M E N T** The appellant herein is the first accused in Sessions Case No.370/2001 of the court of Sessions, Kozhikode Division. By judgment dated 12.3.2003, the learned Sessions Judge found that the appellant/accused is guilty under Section 498A of I.P.C. and accordingly, he is sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.5000/and in default, to undergo simple imprisonment for three months. It is the above verdict and finding of the learned Sessions Judge and the conviction and sentence challenged in this appeal. 2. The prosecution case is that the deceased Sanitha @ Nisha was given in marriage to the appellant/first accused on 28.12.1997 and thereafter, the deceased was residing in the matrimonial home. The second accused is the mother of the first accused/appellant and the mother-in-law of the deceased. According to the prosecution, while she was in her matrimonial home, she was harassed and tortured both physically and mentally by the accused demanding the deceased to procure 25 more sovereigns of gold ornaments as dowry from the house of the deceased as balance gold ornaments, which were agreed to be CRL.A.NO.599 of 2003 :-2-: given by the members of the family of the deceased. Thus, according to the prosecution, on account of such cruelty and harassment, the deceased, some time prior to 6.30 a.m. on 3.12.1999 committed suicide by hanging in the central room of house of the accused and thus, the accused has committed the offences punishable under Section 304B of I.P.C. read with Section 34 of I.P.C. On the basis of the above allegation, Crime No.279 of 1999 was registered in the Mukkam Police Station for the offences under Section 304B and 306 I.P.C. After investigation, the Police preferred a report before the Judicial First Class Magistrate Court, Thamarassery, based upon which cognisance was taken and instituted C.P.No.23 of 2001 and subsequently, the case was committed, upon which S.C.No.370 of 2001 was instituted in the Sessions Court, Kozhikode which was, subsequently, made over to the trial court for disposal. Thus, on the appearance of the accused, a formal charge was framed for the offence punishable under Sections 304B and 306 of I.P.C. which was read over and explained to the accused who denied the same, pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the deposition of Pws.1 to 11 and the documents, Exts.P1 to P10. From the side of the defence, DW1 was examined and Exts.D1 and D2 were marked. On conclusion of the trial, the learned Sessions Judge has found that the prosecution has failed CRL.A.NO.599 of 2003 :-3-: to prove that the accused abetted the commission of suicide by the deceased and therefore, held that the accused has not committed the offences punishable under Section 304B and 306 of I.P.C. But, according to the learned trial court Judge, the available materials and evidence would prove that the first accused has committed the offence punishable under Section 498A of I.P.C. and thus, while acquitting both the accused under Section 235 of Cr.P.C. for the offences under Sections 304B and 306 of I.P.C., the first accused alone is found guilty under Section 498A of I.P.C. On such conviction, the learned Sessions Judge sentenced the first accused/appellant to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5000/- and the default sentence is fixed as three months simple imprisonment. It is the above conviction and sentence and the findings of the trial court challenged in this appeal. 3. I have heard Sri.P.V.Kunhi Krishnan, learned counsel appearing for the appellant and the learned Public Prosecutor. 4. In order to prove the case of the prosecution, the prosecution mainly depends upon the evidence of PWs.1 to 3. PW1 is the father of the deceased through whom Ext.P1 invitation card, Ext.P2 F.I.statement were marked by the prosecution. Ext.D1 contradiction is also got marked by the defence through PW1. When PW1 was examined, he had deposed in terms of the prosecution CRL.A.NO.599 of 2003 :-4-: and the details regarding the arrangement of marriage between the deceased and the appellant. He had also deposed before the court regarding the demand of gold ornaments from the part of the accused and also regarding the harassment meted out against the deceased. According to him, he has no direct knowledge regarding the harassment or cruelty. PW2 is the wife of Pw.3, the sister-in-law of the deceased. When PW2 was examined, she has also stated in favour of the prosecution and she, in her deposition, stated that the deceased told her about the cruelty meted out against the deceased by the appellant/first accused and his mother A2. PW3 is the brother of the deceased. According to him, after six month from the date of marriage between the deceased and the appellant, he had occasion to visit the matrimonial home of the deceased and he had witnessed the cruelty meted out against the deceased by the appellant and according to him, he saw the accused beating the deceased. PW4 is the neighbour to prove the prosecution case and particularly, to show that on the date of the incident, he had heard some sound from the matrimonial home of the deceased. PW5 is a local resident, who is cited to prove the marriage between the appellant and the deceased. PW7 is the Village Officer through whom Ext.P4 plan about the scene of occurrence was marked. It was PW8, the Tahsildar, who conducted the inquest on the body of the deceased, as per Ext.P5 inquest report. PW9 is CRL.A.NO.599 of 2003 :-5-: the then Additional S.I. of Police attached to Mukkam Police Station, who registered Ext.P2 F.I.R. and made Ext.P6 report under Section 304B. It was PW11, the then Dy.S.P. who conducted the investigation and PW10 is the successor of PW11, who laid the charge. Exts.P7,P8,P9 and P10 are marked through PW11. When the prosecution evidence was over, the accused were questioned under Section 313 of Cr.P.C. and when the incriminating circumstances and evidence, which emerged during the prosecution evidence, put to the accused, they denied the same. Subsequently, the defence produced Ext.D2 by examining DW1, who is a Psychiatrist. It is, on the basis of the above evidence and materials, the trial court though found that the accused are not guilty under Sections 304B and 306 and acquitted all the accused for the said offences, the appellant/the first accused alone is found guilty under Section 498A of I.P.C. 5. Challenging the above conviction and sentence and the findings of the trial court, Sri.P.V.Kunhirkrishnan, learned counsel appearing for the appellant submitted that the findings of the court below under Section 498A of I.P.C. are legally and factually unsustainable, especially in the light of the facts and circumstances involved in the case, particularly in the acquittal recorded by the court below with respect to the offences under Sections 304B and 306 of I.P.C. CRL.A.NO.599 of 2003 :-6-: Learned counsel submitted that though the prosecution has raised a charge under Section 304B and 306 against the accused, the trial court has categorically found that the prosecution has miserably failed to establish those allegations and accordingly, the learned trial court Judge acquitted the accused of both the charges under Section 304B and 306. After inviting my attention to the depositions of DW1 and after referring to Ext.D2, the learned counsel submitted that the deceased has a tendency to commit suicide and the available materials on record are not sufficient to hold that the deceased committed suicide in pursuance of any demand for dowry or ornament so as to attract Section 498A of I.P.C. It is also the submission of the learned counsel that even if the case of Pws.1 to 3 is admitted as true, for the sake of argument, that the deceased was subjected to cruelty, on the expiry of six months from the date of the marriage, the same is not sufficient to attract Section 498A of I.P.C. since the alleged death was on 3.12.1999 and there is no proximity between the date of demand of ornaments or cruelty and the suicide. In support of the above submission, learned counsel placed reliance upon the decision of the Honourable Apex Court reported in **Girdhar Shankar Tawade** v. **State of Maharashtra** [2002(5) SCC 177]. Thus, according to the learned counsel, the accused is entitled to get a clear acquittal. CRL.A.NO.599 of 2003 :-7-: 6. On the other hand, the learned Public Prosecutor submitted that the deceased committed suicide within two years from the date of the marriage and the prosecution has succeeded in proving the guilt of the accused by adducing cogent and acceptable evidence, especially through the evidence of Pws.1 to 3. According to the learned Public Prosecutor, when the cruelty is once established, the same is sufficient to attract the offence under Section 498A and the time factor between the date of the cruelty and the act of the person, who is subjected to cruelty is not at all a material. Therefore, no interference is warranted, according to the learned Public Prosecutor. 7. I have carefully considered the arguments advanced by Sri.P.V.Kunhikrishnan, learned counsel for the appellant and also the learned Public Prosecutor. I have carefully perused the judgments of the trial court and the evidence and materials on record. 8. In the light of the allegation of the prosecution and the materials on record, and particularly, in the light of the rival contentions raised, the question to be considered is whether the trial court is justified in holding that the appellant/accused has committed the offence punishable under Section 498A of I.P.C. In order to consider the above question, I am of the view, particularly in the light of the specific finding arrived on by the trial court, upon the allegation CRL.A.NO.599 of 2003 :-8-: of the prosecution regarding the offences under Sections 304B and 306, the entire evidence need not be appreciated again, but what required is for reappreciation of the evidence, which is relied on by the learned Sessions Judge in support of his findings and convicting the appellant for the offence under Section 498 A of I.P.C. Before considering the above factual and evidential aspect, according to me, it is beneficial to have a reference to Section 498A of I.P.C. which reads as follows:- “498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, “cruelty” means-- - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or - (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” So, in order to establish the offence under Section 498A, the prosecution has to inevitably establish that the accused has subjected the deceased to cruelty, as a CRL.A.NO.599 of 2003 :-9-: result of the wilful conduct of the accused, which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. The second type/nature of cruelty will be attracted only if the prosecution succeeded in establishing that the harassment of the woman is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. It is also apposite to consider the dictum laid down by the Apex Court in the decision cited supra, particularly in paragraph 18 of the above decision which reads as follows:- “ _18. A faint attempt has been made during the course of submissions that Explanation (a) to the section stands attracted and as such, no fault can be attributed to the judgment. This,in our view, is a wholly fallacious approach to the matter by reason of the specific finding of the trial court and the High Court concurred therewith that the death unfortunately was an accidental death and not suicide. If suicide is left out, then in that even question of applicability of Explanation (a) would not arise – neither the second limb to cause injury or danger to life or limb or health would be attracted. In any event the wilful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498-A and not dehors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498-A. The legislative intent is clear enough to indicate in particular reference to Explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of Explanation (b). The letters by themselves though may depict a_ CRL.A.NO.599 of 2003 :-10-: _reprehensible conduct, would not, however bring home the charge of Section 498-A. Acquittal of a charge under Section 306, as noticed hereinbefore, though not by itself a ground for acquittal under Section 498-A, but some cogent evidence is - required to bring home the charge of Section 498 A as well, without which the charge cannot be said to be maintained. Presently, we have no such evidence available on record._ ” (underline supplied) 9. Now let us examine whether the available materials are sufficient to attract Section 498A of I.P.C. especially in the light of the dictum laid down by the Honourable Apex Court in the decision cited supra. Going by the evidence of Pws.1,2 and 3, at the most, what can be gathered is that after about 6 months from the date of the marriage between the appellant and deceased, the deceased was subjected to cruelty by the appellant/accused. Suffice to say, there is no convincing and acceptable evidence to show that the deceased was subjected to cruelty as claimed by Pws.1 to 3. It is relevant to note that the learned Judge of the trial court refused the prosecution case regarding the cruelty, except the one allegedly taken place after six months from the date of marriage. The evidence of Pws.1 to 3 in this regard cannot be believed because their prejudiced mind against the accused deposed before the court against the legally acceptable evidence of DW1 and Ext.D2. They have got a tendency to deny all the question and answers connected with the mental ailment of the deceased. It is CRL.A.NO.599 of 2003 :-11-: also relevant to note that though PW1 has claimed that he preferred a complaint before the Mukkam Police, no further action was taken either by PW1 or PW3 when the Mukkam Police failed to take any further action. Regarding the incident, the only evidence is that of PW3, who is none other than the brother of the deceased. Though he had deposed that he had witnessed the incident of cruelty, he did not initiate any steps. When PW3 denied the evidence of DW1 and Ext.D2, in the absence of any independent evidence, to corroborate the version of PW3, it is not safe to act upon the evidence of PW3 and to base the same for the conviction of the appellant/accused. In this juncture, it is pertinent to note that, even if the evidence of PW3 is taken as true, it cannot be acted upon, since the deceased has condoned the said act of the appellant and she had resided along with the accused for more than a period of 1½ years, from the time of such cruelty. It is brought on record that the dispute was settled in the Family Court and the deceased resided along with the appellant. Therefore, if the alleged cruelty deposed by PW3 is taken as proved, the same has no legal consequence in the present case. 10. Even otherwise, as I indicated earlier, even if the above interested evidence of Pws.1 to 3 are accepted, the same are not sufficient to attract Section 498A of I.P.C., especially in the light of the decision of the Apex Court CRL.A.NO.599 of 2003 :-12-: which is cited supra. In the light of the particular facts and circumstances involved in the case and especially in the light of the evidence of DW1, the Psychiatrist, who treated the deceased, according to whom, there is a tendency on the part of the deceased to commit suicide for the reason stated in his deposition. Therefore, in the absence of any proximity between the so-called cruelty meted out against the deceased and the death, especially when the deceased has got a tendency to commit suicide, it cannot be said that the deceased has committed the suicide because of the alleged cruelty, and thereby attract the second limb of cruelty as contemplated by Section 498A of I.P.C. It is also relevant to note that the trial court has rightly refused to accept the evidence of Pws.1 to 3 regarding the alleged incident taken place before two weeks prior to the date of death. If that be so, according to me, the prosecution has miserably failed to prove positively that the deceased has committed suicide because of the cruelty meted against her by the appellant/accused and therefore, the findings of the trial court in favour of the prosecution is legally and factually incorrect and not justifiable and accordingly, the same is liable to be set aside. Thus, the conviction recorded by the trial court against the appellant under Section 498A is set aside. In the result, this appeal is allowed setting aside the judgment dated CRL.A.NO.599 of 2003 :-13-: 12.3.2003 in S.C.No.370 of 2001 of the trial court to the extent the appellant is found guilty and convicted under Section 498A of I.P.C and confirming the acquittal for the offence under Section 304B and 306 of I.P.C. and accordingly, the accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him is set aside and he is set at liberty. **V.K.MOHANAN, Judge** MBS/ CRL.A.NO.599 of 2003 :-14-: **V.K.MOHANAN, J** . CRL.A.No. 599 OF 2003 **JUDGMENT** Dated:21.7.2011 ## CRL.A.NO.599 of 2003 :-15-: