State of Kerala v Sivadasan and Devaki Amma; M. Janaki Amma v Sivadasan and Devaki Amma; Crl.Rev.Pet. 2290/2004

**CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** ## **CRL.A.No.1842 OF 2004** **AGAINST THE JUDGMENT IN SC 183/1999 DATED 03-01-2004 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO.1, MANJERI** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA,** **REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (CRIME NO.133/93 OF VALANCHERRY, POLICE STATION).** **BY SRI.K.B.UDAYABHANU, SENIOR PP** ## **RESPONDENTS/ACCUSED NOS.1 AND 2:** **1 SIVADASAN, S/O. MADHAVAN NAIR, NAMATTU THODI VEEDU, VALIYAKUNNU.** **2 DEVAKI AMMA, W/O. MADHAVAN NAIR, NAMATTU THODI VEEDU, VALIYAKUNNU.** **R1 BY ADV. SRI.P.M.RAFIQ R1 BY ADV. SRI.P.VIJAYA BHANU** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1/12/2020, ALONG WITH CRL.A.2429/2006, Crl.Rev.Pet.2290/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** ## **CRL.A.No.2429 OF 2006** **AGAINST THE JUDGMENT IN SC 64/2002 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.I, MANJERI** ## **APPELLANT/COMPLAINANT:** **M.JANAKI AMMA D/O.KRISHNAN NAIR, MOOLIYATTIL HOUSE, VALIYAKUNNU AMSOM, DESOM,, VALANCHERY.** **BY ADVS. SRI.RAJIT SRI.RANJIT BABU** ## **RESPONDENTS/ACCUSED:** **1 SIVADASAN S/O.MADHAVAN NAIR, MARMATTUTHODU HOUSE, VALIKUNNU. 2 DEVAKI AMMA W/O. MADHAVAN NAIR MARMATTUTHODU HOUSE, VALIKUNNU.** **3 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY ADV. SMT.M.M.DEEPA R1 BY ADV. SRI.V.A.JOHNSON VARIKKAPPALLIL R1 BY ADV. SRI.P.VIJAYA BHANU SR. R3 BY PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1-122020, ALONG WITH CRL.A.1842/2004, Crl.Rev.Pet.1842/2004, Crl.Rev.Pet.2290/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004 3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** **Crl.Rev.Pet.No.2290 OF 2004** **AGAINST THE JUDGMENT IN SC 183/1999 DATED 03-01-2004 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.I, MANJERI** ## **REVISION PETITIONER/COMPLAINANT:** **M.JANAKI AMMA D/O.KRISHNAN NAIR, MOOLIYATTIL HOUSE, VALIYAKUNNU AMSOM DESOM, VALANCHERRY.** **BY ADVS. SRI.RAJIT SRI.RANJIT BABU** ## **RESPONDENTS/ACCUSED:** - **1 SIVADASAN, S/O.MADHAVAN NAIR, MARAMATTUTHODU HOUSE, VALIKUNNU.** - **2 DEVAKI AMMA, W/O.MADHAVAN NAIR, MARAMATTUTHODU HOUSE, VALIKUNNU.** - **3 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R3 BY PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR R1 BY ADV. SMT.P.MAYA R1 BY ADV. SRI.P.VIJAYA BHANU** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1/12/2020, ALONG WITH CRL.A.1842/2004, CRL.A.2429/2006, Crl.Rev.Pet.1842/2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004** **4** ## **JUDGMENT** **[ CRL.A.1842/2004, CRL.A.2429/2006, Crl.Rev.Pet.2290/2004 ]** **Dated this the 1st day of December 2020** These two appeals and the revision are connected and therefore, I am disposing all these three cases by a common judgment. 2. Crl.A No.1842/2004 is filed by the State, challenging the judgment dated 3.1.2004 in S.C No.183/1999 on the file of the Additional District and Sessions Judge (Adhoc), Fast Track Court No.I, Manjeri by which two accused were acquitted under Section 498A r/w 34 IPC. Crl.R.P No.2290/2004 is filed by PW9 in the above case challenging the very same judgment. Crl.A No.2429/2006 is filed by the complainant in S.C.No.164/2002 on the file Additional District and Sessions Judge (Adhoc), Fast Track Court No.I, Manjeri. S.C No.183/1999 is a police charge case and S.C.No.164/2002 arises from a private complaint. The police filed a final report against the accused alleging offence punishable under Section 498A IPC and the same was taken on file by the Judicial **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004 5** First Class Magistrate Court, Tirur. Subsequently, that case was committed to the Sessions Court in the light of the fact that the learned Magistrate found that the offence under Section 306 IPC is also made out. S.C.No.164/2002 arises based on a private complaint filed by the complainant before the Judicial First Class Magistrate Court, Tirur. That complaint was taken on file by the learned Magistrate and after conducting enquiry under Section 202 Cr.P.C, that case was also committed to the Sessions Court. Accordingly, S.C.No.164/2002 and S.C.No.183/1999 were registered by the Sessions Court and both the cases were disposed together by separate judgments. 3. The prosecution case in brief in S.C No.183/1999 is that the marriage between the deceased Sobhana and the accused No.1 had been solemnized on 1.5.1991 and that they were residing together in the husband's house along with the 2[nd] accused, the mother of the 1[st] accused. While so, it is alleged that the accused subjected her mental and physical abuse and abetted her to commit suicide. Accordingly, it is the prosecution case that the Sobhana committed suicide by hanging on 28.10.1993 at 6 pm., from their bedroom and therefore, the accused committed the offence. **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004 6** 4. The case in S.C.No.164/2002 is that the accused committed the offences under Section 323, 324 and 304B r/w Section 34 IPC. It is alleged that Sobhana died within seven years of her marriage and there is demand for dowry and hence the accused committed the offence under Section 304(B) IPC also. 5. In S.C.No.183/1999 altogether 16 witnesses were examined. Exts.P1 to P11 were marked. As far as S.C. No.164/2002, 8 witnesses were examined and the certified copy of evidence of the witnesses who were examined in S.C. No.183/1999 was marked as Ext.P5 to P12. This procedure adopted by the learned Judge is not correct. But I think it is marked without any objection. Both the cases were considered by the learned Sessions Judge. The learned Sessions Judge concluded that the accused has not committed the offence. Accordingly, the accused were acquitted by the trial court. 6. I will consider the evidence adduced by the prosecution in S.C. No.183/1999 first. In that case, the learned Sessions Judge framed the following points for consideration. “1. Whether the death of Sobhana was due to suicidal hanging as alleged by the prosecution? 2. Whether the accused had abetted Sobhana to commit suicide by subjecting her to mental assault? **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004** **7** 3. In case of conviction what would be the appropriate order or sentence to be imposed?” 7. As far as the point No.1 is concerned, the trial court concluded that the death of Sobhana is not a homicide but suicide. Thereafter, the learned Sessions Judge considered point No.2 to find out whether there is abetment from the side of the accused for the suicide of Sobhana. This point was considered by the learned Sessions Judge in detail in the impugned judgment. The relevant portion is extracted hereunder: “19. **Point No.2** : As it is concluded that death of the deceased was due to hanging, the next question that arises for determination is whether the girl was subjected to cruelty within the meaning of Section 498(A) and thereby the accused have abetted her to commit suicide. PW1 and PW9 have given evidence that their daughter was subjected to untolerable cruelty. Both of them have specifically deposed that till the birth of a child, there was no quarrel or dissidence between the couple and that the problems arose there after. The incident spoken by PW1 and PW9 are that once, the girl had arrived to their house in pursuance to a quarrel taken place in the house of the accused. She stayed along with her parents for 9 months. Thereafter mediation was held and Sobhana returned to the marital house. The other incident pointed out by these witnesses is that once they had sent a photographer along with PW13 to get snaps of the couple along with the child at the request of their son, who is abroad. At that occasion accused No.1 refused to pose for taking photograph along with his wife. One more incident spoken by them is that the accused did not go to Guruvayoor along with his wife and child. PW1 has specifically deposed before the court that there was quarrel between the accused (ie mother and son) and the blame was put on his daughter by the mother-in-law. PW1 is not definite about the reason led Sobhana to take extreme steps in her life. In cross examination PW1 has admitted that his **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004** **8** relationship with accused No.1 was constrained. PW9 has exclaimed as to why Sobhana had resorted to extreme steps in her life since their house is very near to her marital house. Her daughter could have return to their house, if she felt any such embarrassment or meted out any cruelty at the hands of the accused. At this juncture it is pertinent to note that the substantial defence raise is that the relationship between the father-in-law and son-in-law was strained as the son-in-law was not amenable to shift his residence to his wife house. When the accused was questioned u/s 313, he has stated before the court that their relationship was strained and that is the reason, led his wife to commit suicide. In addition to that he has added that even after the death of his wife, his father-in-law is haunting him and he lost his employment in the post office. Thereafter he joint some other work in Tamil Nadu. He lost that job also due to the harassment made by his father-inlaw. In cross examination, PW1 has struggled to give convincing and satisfactory evidence as to why the girl had taken extreme steps, instead of returning to her parental house. In cross examination PW1 has admitted that the two houses are situated within distance of 1 km. PW9 has deposed that it was rather easy for the daughter to reach their house. It is also noted that PW1 was not willing to send his daughter to the matrimonial house after the mediation once held. Once accused No.1 came to his house to take his wife and child, Sobhana got ready to go her house. PW1 prevented Sobhana to accompany accused No.1. According to the accused PW1 had even beaten Sobhana when she got ready to go with him. That suggestion is denied by PW1 and he asserted that he has not beaten his daughter. But he has admitted that he did not like Sobhana going with her husband and asked her to go inside. Therefore, it is clear that PW1 did not want Sobhana to go with accused No.1. This conduct of PW1 would indicate that he was standing between the couple. On a cross examination of the evidence of PW1, I could ascertain certain elements which would indicate that relationship between the accused and PW1 was strained. He has further given evidence that finally Sobhana had gone to the accused house in pursuance to a compromise talk. Sobhana had committed suicide on the expiry of three months from that point of time. PW1 and 9 have admitted that within the three intervening months they had never gone to the house of the accused to see whether their daughter is leading a happy and normal life. Within that three months Sobhana **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004** **9** had once visited her house when she had gone to that side for giving polio to her child. But PW1 was not there. He has admitted that he had not seen his daughter on that occasion. PW9 has given evidence that at that occasion she came to know that her daughter has became pregnant for the second time. The two houses are situated within 1 km distance. The picture revealed is that within the three months, parents did not made any enquiry about the daughter. Likewise the girl had not conveyed any information to them. The only event taken place, within three months is in connection with taking photographs. PW1 and 9 have given evidence that their son is at abroad and he wanted some photographs of Sobhana and her family. They sent word to the accused to come to their house. But accused refused to send Sobhana. Accordingly PW3 and one Kotha a labourer under PW1 had gone to the house of the accused to take photographs. The complaint alleged is that the accused had refused to pose with his wife to take photographs and she was deeply hurt when the accused No.1 posed for taking photographs along with said Kotha. This aspect is seen spoken by PW1, PW3 and 9. This incident happened some few days prior to the incident. According to the defence, morning hours are busy for the accused and Sobhana. As he was working as a EDD in a local post office he has to attend the office in time. It is further argued that during morning hours, Sobhana will be busy with her house hold duties and it would take sometime for her to take dressed. To corroborate this incident PW3 and the said Kotha are examined. Kotha is PW12. 20. PW12 has given evidence that no photographs of deceased Sobhana and accused together was taken. At the same time he posed with accused No.1 for taking photographs. He has further deposed that accused No.1 has stated that, no sufficient time is available for taking photograph. He is declared hostile, and his contradictory versions is marked as Ext.P8. He has asserted that he has not deposed that Sobhana was deeply hurt. PW13 has given evidence that he was also convinced that Sobhana was deeply hurt since the accused did not like to pose for photographs along with her. PW3 has further stated that Sobhana asked him to as to why they brought photographs for which she has to meet problems. Considering the entire aspect including the time chosen I find no fault with accused. Even if it is assumed that he was not prepared to pose for photographs along with his wife, it has to be believed that the time chosen for taking photograph party **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004** **10** was not proper. This incident could not be treated as a cruelty within the definition U/s.498(A). “ 8. I once again perused the entire oral and documentary evidence adduced by the prosecution and the findings of the trial court. I see no reason to interfere with the reasoning of the trial court to acquit the accused. The trial court considered all the evidence available in this case and thereafter came to the conclusion that the accused is not guilty under Section 498A IPC or under Section 306 IPC. Hence the lower court acquitted the accused in S.C No.183/1999. There is nothing to interfere with the above finding by the trial court. 9. As far as S.C No.164/2002 is concerned, the allegation is that the accused committed the offence under Section 304B IPC also. This point is also considered by the learned Sessions Judge in detail in the impugned judgment. The evidence of one witness, who was examined as PW4 in S.C No.164/2002 was considered by the learned Judge in detail and rejected the same. I see no reason to interfere with the above finding of the trial court. As far as the offence under Section 304B IPC is concerned, the trial court considered the evidence available in this case in detail and found that there is absolutely no evidence **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004** **11** to show that there is any persistent demand for dowry from the side of the accused which driven the deceased to commit suicide. This point is considered in paragraphs 20 and 21 of the impugned judgment in S.C. No.164/2002, which is extracted hereunder: “20. As the prosecution mainly emphasis the offence constituting Section 304(B), the court is not expected to answer the charge laid U/s.323 and 324 as there is absolutely no evidence in this regard. I feel that these two sections have been added due to the presence of antimortem injuries noted in the post mortem certificate. Enough convincing and satisfactory conclusions have been arrived at while dealing with the medical evidence. Therefore section 323 and 324 lost its significance. Coming to the ingredients consisting section 304(B) it is the heavy burden of the prosecution, to establish the persisting demands made by the accused for dowry and that Sobhana had committed suicide in connection with demands of dowry. 21. The material witnesses are her parents ie. PW1 and PW9. Apart from strayed reference, there is no convincing and satisfactory version in their testimony that the accused had demanded for dowry. These witnesses have deposed before this court that their daughter was in dire need of money and they extended their helping hand to her such helps provided to a daughter by her parents voluntarily could not be equavated with persisting demand for dowry. It is brought on evidence that accused No.1 is a last grade employee in the postal department. He was drawing meagre salary. Till a child was born, there was no problem in the matrimonial house. The dissidence started to develop after the birth of the child. The needs of the family might have been increased. The deceased girl and her parents wanted to go to various places including Pazhasinikadavu and Guruvayour for which, the accused was not amenable due to want of sufficient funds and time according to my observation in S.C.183/99. The defacto complainant and her husband have no case that their son-in-law is having other source of income, in order to meet both ends in life and the requirements of his wife and mother. PW1 or PW8 have not specifically deposed as to under what circumstances the **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004** **12** accused had demanded dowry. The close relatives or the supporters examined on the side of the prosecution are also not giving evidence to the effect that there was persisting demand for dowry from the side of the accused and that was the reason for developing quarrel or dissidence in the matrimonial house. Occasional requirements of money might have promoted Sobhana to seek voluntary help from their parents. If parents have given financial help as required by their daughter it is not possible to hold a view that the accused have made persisting demand for dowry and that the girl was driven to commit suicide due to that reason.” 10. I see no reason to interfere with the above finding of fact by the trial court. The trial court considered each and every aspect of the case and came to the conclusion that the accused are entitled to benefit of doubt. This Court is sitting in appeal against an acquittal order. Once the court below acquitted an accused, it is now settled that the presumption of innocence of the accused is strengthened. The Apex Court in **Sampat Babso Kale and another v. State of Maharastra (AIR (2019) SC 1852)** and **Chandrappa v. State of Karnataka (2007)4 SCC 415)** considered this matter. The relevant portion of the judgment in **Sampath** ’s case (supra) in which Chandrappa's (supra) case is also considered, is extracted hereunder: “7. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004** **13** demeanour of witnesses. This court in the case of Chandrappa & Ors.v. State of Karnataka laid down the following principles:- “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 11. I have considered the entire case based on the above dictum laid down by the Supreme Court regarding the jurisdiction of this Court to interfere in an appeal against **CRL.A.Nos.1842/2004&2429/2006** **& Crl.Rev.Pet.2290/2004 14** acquittal. According to me, the trial court considered all the available evidence and came to a definite conclusion that the accused is not guilty. I see no reason to interfere with the above judgment. Therefore, these Criminal Appeals and the Criminal Revision Petition are dismissed. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **ab**