Shaji @ Damodaran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** ## **CRL.A.No.1008 of 2004** **AGAINST THE ORDER/JUDGMENT IN SC 384/2001 of I ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM DATED 26-06-2004** **AGAINST THE ORDER/JUDGMENT IN CP 100/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM** ## **APPELLANT/ACCUSED:** **SHAJI @ DAMODARAN, S/O. RAJAN, CHARUVILA VEEDU, PANAYAMKODU, KANJIRAKKODUCHERRY, MULAVANA VILLAGE, KOLLAM.** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.MAYA.M.N., PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2019, THE COURT ON 28.06.2019 PASSED THE FOLLOWING:** _Crl.Appeal No. 1008 of 2004_ 2 ## **JUDGMENT** The accused in S.C.No.384/2001 on the file of the Addl.Sessions Court, Kollam, is the appellant, who has been found guilty of having committed offence punishable under Sections 452, 354, 506(ii) and 306 I.P.C. and sentenced to undergo rigorous imprisonment for three years under Section 452, rigorous imprisonment for two years each under Sections 354 and 506(ii) and rigorous imprisonment for four years under Section 306, I.P.C., apart from direction to pay compensation of Rs.2 lakhs to the two children of the victim in equal proportion under Section 357, Cr.P.C. 2. The facts can be encapsulated as thus: The accused used to allegedly frequent the house of the deceased Mini @ Sujatha, who was residing in her house along with her parents, brother and sisters-in-law and her two minor children. Her husband was away, employed in Andaman. It is the prosecution case that the accused had made amorous advances towards the deceased taking advantage of the fact that as her husband was away. The accused being a distant relative and a _Crl.Appeal No. 1008 of 2004_ 3 coconut plucker, had free access to the house and property of the deceased. 3. It is also the prosecution case that a week prior to the occurrence, unholy designs of the accused was discovered by the father of the deceased, who had admonished him and also forbid him from entering the house again. 4. In violation to the prohibition, on 09.03.2000 at about 9.00 AM the accused allegedly trespassed into the house wielding MO1 chopper, went straight to the deceased, and outraged her modesty by ripping her nighty. Her father, who was the only one present at home to witness, intervened. But the accused intimated him with threat to life, by brandishing the chopper. PW2 her sister-in-law and PW3 her mother rushed to find what was happening, and saw the accused allegedly pulled Mini out of the room by getting hold of her tuft and dragging her to the courtyard. Somehow she managed to free herself from the clutches of the accused, and ran out to reach a pond situated 150 meters away from the house, jumped into it and drowned herself to death. _Crl.Appeal No. 1008 of 2004_ 4 5. PW1, the brother of the deceased, lodged a complaint. Ext.P1 F.I. Statement was recorded by PW9, the S.I. of Police at Kundara Police Station and registered Ext.P1(a) F.I.R. 6. The investigation ensued, Ext.P3 inquest report was prepared with PW6 as a witness, the body was sent for post-mortem and PW7 the Doctor who conducted the autopsy, issued Ext.P4 certificate. Exts.P5 and P6 plan and sketches were prepared by PW8. Ext.P7 the scene mahazar for house and Ext.P8 scene mahazar for the pond were prepared by PW11, the C.I. of Police. The dress worn by the deceased are identified as MO2 and MO3 series. 7. On the basis of the oral testimony of PW1 to PW11 and Exts.P1 to P8 as also the material objects identified as MO1 to MO3, the learned Sessions Judge questioned the accused under Section 313 and called upon him to enter his defence, though no defence evidence was adduced. 8. The learned Sessions Judge on the basis of the above-said evidence found the entire prosecution case _Crl.Appeal No. 1008 of 2004_ 5 to be true, found the accused guilty and convicted. The appellant is aggrieved and impugns the judgment. 9. Heard the learned Counsel for the appellant and the learned Public Prosecutor. Records perused. 10. The facts that are admitted by the appellant are that he and the deceased were intimate and he also used to frequent the house of the deceased. The learned defence Counsel would point out to the testimony of the witnesses to confirm that the accused had free access to the house of the deceased in view of his being a coconut plucker, who used to pluck coconuts and store it inside the house. By that way, he used to enter the property and house of the deceased. The entry of the accused into the property cannot therefore be termed as trespass as alleged by the prosecution, is the argument of the learned Counsel. There is also nothing to prove outrage of modesty or abetting the deceased to commit suicide. 11. _Per contra_ , it is pointed out by the learned Prosecutor that the father of the deceased had forbid the accused from entering the house knowing fully well _Crl.Appeal No. 1008 of 2004_ 6 his amorous advance towards the deceased. The entry of the accused would become trespass only if the prosecution succeeds in establishing that his entry was prohibited. On examining the evidence, it is seen that the fact regarding access of the accused into the house being forbidden by CW2, father of the deceased, was within his direct knowledge, but he was not examined for the reason only known to the prosecution. If that be so, the fact that the accused was prevented from entering the house making his entry on the alleged date of occurrence cannot be termed as a trespass. MO1 chopper is not only a weapon, but also his work implement as a coconut plucker. Hence, the entry of the accused into the house of the deceased carrying MO1 cannot by itself termed as a trespass punishable under Section 452, I.P.C. unless there is evidence to prove that the intention of the accused was to commit an offence. 12. The prosecution case is that the accused had trespassed into the house with the intention to outrage the modesty of the deceased, armed with a weapon. The _Crl.Appeal No. 1008 of 2004_ 7 fact regarding his ripping the robes of the deceased with the intention to outrage her modesty has also not been seen by any other witness, except CW2, the father of the deceased, who had allegedly intervened in rescue of his daughter. Unfortunately, he is not examined to prove this fact too. For that reason, the prosecution fails in establishing the fact that the accused had outraged the modesty of the deceased by trespassing into her house. The offence under Sections 452 and 354 are therefore not proved and the justification given by the learned Sessions Judge in finding the guilt of the accused under those Sections are therefore not sustainable. 13. PW1, who is the brother of the victim, is not an eye witness. He has no direct knowledge about any relationship between the accused and the victim. He was told by his father that the accused had come to their house a week prior to the occurrence with the intention of molest the deceased and that he had admonished him. But this fact is not stated to the police by PW1 and even if he had stated so, the best _Crl.Appeal No. 1008 of 2004_ 8 person is to state regarding this incident is none other than CW2, who was not examined. 14. PW2 is the wife of PW1 and PW3 is the mother of the deceased. Neither of them saw the accused molesting the deceased. All that they saw was that the accused was dragging the deceased from inside the house and the deceased wriggling out of his clutches to jump into the pond to commit suicide. PW4 and PW5 are neighbours, who had reached the scene of occurrence on hearing the commotion. PW4 turned hostile and PW5 has only seen the deceased jumping into the pond. Hence, their testimony is of no assistance. The only testimony, which is now available to the prosecution to implicate the accused, are the testimonies of PW2 and PW3 and their testimony does inspire confidence at all, particularly in view of that fact that father of the deceased was not examined. Hence, the allegation of criminal intimidation under Section 506(ii) also would not lie. 15. The only question that remains to be answered is whether the prosecution has succeeded in establishing that the accused had abetted suicide of _Crl.Appeal No. 1008 of 2004_ 9 the deceased. The learned Counsel for the appellant relies on several judgments to argue that Section 107 of the I.P.C., which spells out the ingredients to constitute abetment is also an important ingredient to constitute an offence under Section 306 of I.P.C. In ## _**Murali & another v. S.I. of Police, 2012 (4) KHC 702**_ it was held that the incitement or instigation of the accused person must have direct nexus to the suicide of the victim. In that particular case, there was evidence to prove that two days prior to the commitment of suicide there was quarrel between the accused and victim and accused had told the deceased “to go and die”. The deceased had left a suicide note which showed the disturbed state of mind in which he blamed the accused for suicide. But even under these circumstances, it was held not sufficient to hold that there was instigation from the accused abetting and driving the victim to commit suicide. ## 16. In _**Sohan Raj Sharma v. State of Haryana, 2008**_ _**KHC 6286**_ , it was held by the Honourable Supreme Court that in cases of alleged abetment of suicide, there must _Crl.Appeal No. 1008 of 2004_ 10 be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty was not found to be enough incitement to the commission of suicide. ## 17. In _**Vaijnath Kondiba Khandke v. State of Maharashtra & another, AIR 2018 SC 2659: 2018 KHC 6435**_ , the Honourable Supreme Court has held that certain action on the part of the superior officer in exigencies of work including stopping salary of a junior officer cannot be attributed to mental torture of the deceased at the hands of his higher officer instigating or abetting him to commit suicide and such allegations are completely inadequate to satisfy the requirements under Section 306, IPC. 18. The Kerala High Court had in a recent decision ## in _**Damodaran A.T.V. & another v. State of Kerala, 2018**_ _**(1) KHC 677**_ held that mere mentioning of the name of the accused in the suicide note without particulars of act committed by them is not sufficient to implicate the accused of an offence punishable under Section 306. _Crl.Appeal No. 1008 of 2004_ 11 19. To attract the provisions under Section 306 what is essential is that the accused must be in possession of such an intention or knowledge that the acts done by him would normally lead the victim to the extreme act of commission of suicide. Only in cases whether the accused was aware that his act would instigate or lead the deceased to commit suicide would he be held liable to have committed offence punishable under Section 306. In the instant case there is absolute lack of evidence against the accused to establish that he had abetted the deceased the extreme steps which she had. There is no evidence that the accused used to pester her frequently with his amorous desire. She has not made any complaint to anyone about his harassment. The solitary incident on the fateful day is neither enough nor proved. I am therefore not convinced about the finding of guilt of the accused by the learned Sessions Judge in the impugned judgment. The conviction cannot therefore be sustained and is set aside. In the result, the appeal is allowed and the conviction and sentence of the appellant in _Crl.Appeal No. 1008 of 2004_ 12 S.C.No.384/2001 on the file of the Sessions Court, Kollam, are set aside and he is set at liberty, in case he is not required in connection with any other case. The bail bonds, if any, executed by him shall stand cancelled. **Sd/-** ## **ASHOK MENON** _dkr_ **JUDGE**