T.C. Jacob @ Yacob v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946** **CRL.A NO. 936 OF 2006** **AGAINST THE ORDER/JUDGMENT DATED 08.05.2006 IN SC NO.323 OF 2005 OF ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM** ## **APPELLANT/1ST ACCUSED:** **T.C.JACOB @ YACOB, AGED 43 YEARS S/O. CHACKO, THANIKUNNEL HOUSE, PAMBAKUDA, ONAKKOOR VILLAGE.** **BY ADV BASIL MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.SANAL P.RAJ, PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON** **26.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Criminal Appeal No.936 of 2006 ## **C.S.SUDHA, J.** **------------------------------------------------------Criminal Appeal No.936 of 2006 ------------------------------------------------------Dated this the 26th day of July, 2024** ## **J U D G M E N T** This appeal under Section 374(2) Cr.P.C. has been filed by the first accused against the judgment dated 08/05/2006 in S.C.No.323/2005 on the file of the Court of the Additional Sessions Judge (adhoc-I), Ernakulam, by which he has been convicted and sentenced for the offence punishable under Section 304 B IPC. 2. The prosecution case is as follows: The first accused married Suja, the daughter of PW3 and sister of PW2, on 10/05/1998 as per the rites and customs of the community to which they belong. At the time of marriage, an amount of ₹4 lakhs was demanded as dowry, out of which 35 sovereigns of gold ornaments and an amount of ₹1,25,000/- was paid. The remaining ₹1 lakh was agreed to be paid later. After marriage, Suja and the first accused started residing along with accused Nos.2 to 4 who are the sister, 3 Criminal Appeal No.936 of 2006 father and mother of the first accused respectively. During the said time, Suja was subjected to cruelty by all the accused by demanding the remaining dowry amount of ₹1 lakh. Suja was tortured both physically and mentally and in one instance, she was admitted at Deva Matha Hospital, Koothattukulam, on 01/08/2001 due to the injuries sustained as a result of the physical assault by the first accused. In October 2002, Suja left her matrimonial home due to the harassment by the accused persons and she stayed with her parents for about 20 days. At the intervention of mediators, Suja returned to her matrimonial home. However, the harassment both physical and mental of Suja continued and finally fed up with the same, Suja on 26/02/2004 committed suicide by hanging herself. Hence, the accused are alleged to have committed the offence punishable under Section 304 B read with Section 34 IPC. 3. Initially, crime was registered by PW15, the then Sub Inspector of Police, Ramamangalam, on the basis of Ext.P1 FIS given by PW1, a neighbor of Suja. Crime No.34/2004, that is, Ext.P1(a) FIR was registered for unnatural death under Section 174 4 Criminal Appeal No.936 of 2006 Cr.P.C. Thereafter, PW2, the brother of the deceased Suja gave Ext.P2 private complaint before the Judicial First Class Magistrate Court, Kolencherry, alleging commission of the offences punishable under Sections 306, 498A read with Section 34 IPC against the accused persons. Ext.P2 complaint was forwarded under Section 156(3) Cr.P.C. to the SHO, Ramamangalam, for investigation and report. As per the report of PW15, the then SHO, Crime No.34/2004 had already been registered for the unnatural death of Suja and so, no fresh crime was registered on the basis of Ext.P2. The investigation revealed the commission of the offence punishable under Section 304 B read with Section 34 IPC and hence, the said Sections were incorporated and investigation conducted. The investigation was conducted by PW16, the then Deputy Superintendent of Police, Muvattupuzha, who completed the investigation and submitted the charge sheet/final report alleging the commission of the offence punishable under Section 304 B read with Section 34 IPC. 4. The prosecution examined PWs.1 to 16 and got marked 5 Criminal Appeal No.936 of 2006 Exts.P1 to P12. Ext.D1 was marked on the side of the accused. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral evidence was adduced by the accused. 6. The trial court on a consideration of the oral and documentary evidence and after hearing both sides, found the first accused guilty of the offence punishable under Section 304 B read with Section 34 IPC and hence proceeded to sentence the accused to rigorous imprisonment for 7 (seven) years. He has been granted set off under Section 428 Cr.P.C. A2 to A4 have been acquitted under Section 235(1) Cr.P.C. Aggrieved, the accused has come up in appeal. 6 Criminal Appeal No.936 of 2006 7. Heard both sides. 8. The incident took place on 26/02/2004 when Suja committed suicide. As noticed earlier, initially crime was registered for unnatural death. Ext.P2 complaint was given six months after the incident by PW2, the brother of deceased. It was submitted on behalf of the accused that this is a false case instituted at the instigation of the former husband of the 2[nd] accused. The prosecution relies on the testimony of PW2 to PW4 who are the brother, mother and uncle respectively of the deceased to substantiate the case that she had been harassed continuously and repeatedly by the accused demanding more dowry. One instance of physical abuse is alleged to have taken place on 01/08/2001 and to establish the same, Ext.P5 certificate is relied on. 9. In order to seek a conviction against a person for the offence of dowry death under Section 304 B IPC, the prosecution has to prove that (a) the death of the woman was caused by any burns or bodily injury or had occurred otherwise than under normal 7 Criminal Appeal No.936 of 2006 circumstances; (b) such death should have occurred within seven years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment, the . deceased should have been subjected to soon before her death 9.1. In the case on hand, the marriage between the first accused and Suja was solemnized on 10/05/1998. Ext.P7 marriage certificate proves the same. Suja is stated to have committed suicide on 26/02/2004, that is, within six years of her marriage. PW10, Assistant Professor, Forensic Medicine, Medical College Hospital, Alappuzha deposed that on 28/02/2004, he had conducted the postmortem examination on the body of Suja. His examination revealed the following: “ _Entire body of a female of length 150 cm. of moderately built and nourished. Eyes closed. Corneae hazy. Conjuctivae congested. Lips an finger nails blue. Blood stained fine froth from nostrils. Marbling present in the front upper part of chest neck and under aspect of_ 8 Criminal Appeal No.936 of 2006 _chin._ _Legature material not seen with the body._ _Regiormortis passing of from upper limbs and retained to lower limbs. Postmortem staining at the back fixed._ _Pressure abrasion was grooved, high around neck, oblique and non continuous. At the front of neck the pressure abrasion was 8 cm above superasternal notch 1.5 cm broad. On right side the pressure abrasion was 9 cm. below right ear lobe and 2 cm broad, on left side, 3 cm below left ear lobe. 1.5 cm at the back of neck the marks was 8 cm below occipital protuberance. At the back of neck mark, free area of 4 cm towards left of midline. Neck was dissected in blood less field. Tissues beneath the abrasion were firm and pale. Hyoid bone, thyroid cartilage and other structures of neck were normal. and intact._ _No other injuries seen on the body._ ## _- Other findings:_ _Skull intact, Brain congested, Heart normal, lungs congested, showing early decomposition on changes._ _Stomach contained three handsful of partly digested cooked rice, without any unusual smell. mucossa showing early decomposition changes._ 9 Criminal Appeal No.936 of 2006 _Genetalia. External genitalia normal. Vagina admitting two fingers loose- Uterus normal cavity empty. All other organs showing decomposition changes otherwise normal._ _Opinion as to cause of death._ _Postmortem findings are consistent with the history of death due to hanging.”_ The postmortem certificate issued by PW10 has been marked as Ext.P6. The inquest report prepared by PW14, the then Tahsildar has been marked as Ext.P10. The aforesaid evidence which has not been disproved or discredited will prove that the death of Suja was otherwise than in the normal course or that death was caused due to hanging. The aforesaid evidence proves the ingredients under (a) and (b). Now what remains are the ingredients under (c), (d) and (e) of Section 304 B IPC. 10. One of the essential ingredients of the offence of dowry death under Section 304 B IPC is that the accused must have subjected the women to cruelty in connection with a demand for dowry soon before her death and this ingredient has to be proved 10 Criminal Appeal No.936 of 2006 by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death under under Section 113B of the Evidence Act, 1872 ( **K.Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC 217** ). The Apex Court in **Gurdeep Singh v. State of Punjab, AIR 2011 SC 3616** has held that indisputably, in order to attract Section 304 B IPC, it is imperative on the part of the prosecution to establish that the cruelty or harassment had been meted out to the deceased 'soon before her death'. There cannot be any doubt or dispute that this is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fixed period can be indicated therefor. It, however, must undergo the test known as `proximity test'. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim. 10.1. In **Satvir Singh v. State of Punjab, AIR 2001 SC** **2828: 2001 KHC 934** , it has been held that it is not enough that the harassment or cruelty was caused to the women with a demand for 11 Criminal Appeal No.936 of 2006 dowry at some time, if Section 304 B is to be invoked. But it should have happened 'soon before her death'. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words 'soon before her death' is to emphasise the idea that her death should, in all been the aftermath or probabilities, have of such cruelty harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide, the court would be in a position to gauge that in all probabilities the demand for dowry would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept “soon before her 12 Criminal Appeal No.936 of 2006 death”. 11. The incident of physical abuse which resulted in Suja being hospitalized is alleged to have taken place on 01/08/2001. PW9, Causality Medical Officer, Deva Matha Hospital, Koothattukulam, deposed that he had issued Ext.P5 certificate relating to the treatment of Suja. According to him, he was on duty on 01/08/2001 on which day, Suja had been brought to the hospital with a history of fall. The patient had redness and swelling on her face. She had vomiting and nasal stiffness. The patient was examined by the ENT Surgeon and on examination was found to have sustained a fracture of the nasal bone. PW9 also deposed that the said injury could be caused by beating her on her face with hands. Ext.P5 certificate dated 31/05/2004 issued by PW10 reads thus- “ _Mrs.Suja Jacob 29 yrs/F, Thanikunnel House, Pambakuda._ _This patient came to casualty on 01/08/2001 at 11:25 p.m. saying pt. had a H/o. fall on her face in the evening._ 13 Criminal Appeal No.936 of 2006 _Pt. had reddening and swelling on left side of face, vomiting and Nasal Stiffness._ _Pt. was taken X ray skull < AP and Lat._ _Pt. was seen by Surgeon, admitted for observation. Pt. also seen by ENT Surgeon and diagnosed on Fracture Nasal bone, and discharged with Medications on 02/03/2001._ _This certificate is issued as per the request from Dy. Supdt. of Police, Muvattupuzha._ (Emphasis supplied) _Sd/-_ _Dr.S.I.Joseph, CMO”_ Apparently, Ext.P5 was given after the incident in this case. The certificate has been given at the request of PW16, the investigating officer, which makes it clear that it is a statement given in writing by the witness to the police during the course of investigation, coming under Section 161 Cr.P.C. Therefore, Ext.P5 is clearly inadmissible in evidence. What the prosecution could have done was to summon the records in the hospital to establish the case of Suja sustaining grievous injuries in the incident. Even 14 Criminal Appeal No.936 of 2006 assuming that Ext.P5 certificate is admissible, the same would not help or further the case of the prosecution. 12. As noticed earlier, apart from the testimony of PW2, PW3 and PW4 who are none other than the brother, mother and uncle of the deceased, there is no independent evidence to substantiate the allegations. It is true that such cases take place within the four walls of a matrimonial home and the witnesses to the same can only be the near and dear relatives of the deceased and it may not be possible to have independent eye-witnesses for the same. But the evidence of PW2, PW3 and PW4 read along with Ext.P5 certificate also would not help the prosecution case because the said incident of alleged physical assault took place on 01/08/2001, whereas the incident in the case took place on 26/02/2004, that is, nearly three years after the alleged physical assault by the first accused. Admittedly, Suja had continued to reside in her matrimonial home with the first accused even thereafter. 15 Criminal Appeal No.936 of 2006 13. PW4, the uncle of the deceased is alleged to have intervened in the matrimonial disputes some time in 2002. According to PW2, on 04/10/2002, Suja had returned home and stayed in her parents' house for 20 days and thereafter at the intervention of her uncle and other mediators, discussions were held and it was agreed that if Suja and the first accused reside separately, the remaining dowry amount of ₹1 lakh would be given. PW1 deposed that he was also ready to give it and it was because Suja was against the same, the amount had not been given then. Admittedly, after the said incident also, Suja returned to her matrimonial home. The said incident took place in the year 2002, which again is nearly more than two years before the incident. The said incident cannot also be described as something which happened 'soon before her death'. 14. Further, evidence has come on record to the effect that Suja wanted to set up a separate home with her husband, the first accused; she did not want to stay along with her in-laws and that her in-laws were against her plan/desire of setting up a new and 16 Criminal Appeal No.936 of 2006 separate home. According to PW2 to PW4, it was due to the constant harassment of the accused persons, Suja desired so. Here the testimony of PW5, a neighbor, in his cross-examination by the first accused also needs to be taken into account. PW5, a hostile witness deposed in the cross-examination that Suja was stubborn and that she would insist on things being done immediately as . desired by her (സജയ� പ�ട�വ�ശ� ഉണ�യ�രന എന�ങ�ല� നടതണ� ...... see എന പറഞ�ൽ അപ��ൾ തന" നടതണ� എനണ�യ�രന page No.3 of her deposition). There is no re-examination or clarification on this point by the prosecutor. Was there any other reason(s) which prompted Suja to commit suicide? Doubts arise in the mind of the court. The evidence on record does not satisfy the ingredients under (c), (d) and (e) of Section 304 B IPC herein above referred to and hence I find that the accused is entitled to the benefit of doubt. In the result, the appeal is allowed. The impugned judgment is set aside. The conviction and sentence passed in S.C.No.323/2005 17 Criminal Appeal No.936 of 2006 against the accused under Section 304 B IPC is set aside. The accused is acquitted under Section 235(1) Cr.P.C. He is set at liberty and his bail bond shall stand cancelled. Interlocutory applications, if any pending, shall stand closed. **==> picture [214 x 42] intentionally omitted <==** Sd/- **C.S.SUDHA JUDGE** NP