Vijaya Kurup v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943** **CRA(V) NO. 38 OF 2019** **AGAINST THE JUDGMENT IN SC 450/2015 OF ADDITIONAL SESSIONS COURT** **- IV, KOLLAM** **(CP 173/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, PUNALUR)** ## **APPELLANT/S:** **VIJAYA KURUP, AGED 61 YEARS S/O. GOVINDA KURUP, VINITHA BHAVAN, THOTTUVA, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.SUBHASH CYRIAC SMTSHEEBA JOSEPH SRI.S.SREEJITH** ## **RESPONDENTS:** - **1 SURESH KUMAR, AGED 30 YEARS S/O. RAGHAVAN NAIR, KIZHAKKEKKARA PADINJATETHIL VEEDU, ERATHU VADAKKU, PATTAZHY P. O., KOLLAM DISTRICT, - 691 522.** - **2 STATE OF KERALA REPRESENTED BY SUB-INSPECTOR, KUNNICODE POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY ADV SRI.S.SREEKUMAR (KOLLAM)** ## **OTHER PRESENT:** ## **SMT.S.AMBIKADEVI, SPECIAL GP FOR ATROCITIES AGAINST WOMAN AND CHILD** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.A.(V).38/2019** **- 2 -** **K.Vinod Chandran & C.Jayachandran, JJ. --------------------------------------------Crl.A.(V) No.38 of 2019 --------------------------------------------Dated this the 01[st] December, 2021** ## **JUDGMENT** **Vinod Chandran,J.** **The suicide of the wife within seven years led to allegations being raised against the husband for demand of dowry and consequent harassment, which led to the present prosecution. The Sessions Judge having considered the evidence, found that the necessary ingredients under S.304B of the IPC are not available for finding the accused guilty of the offence charged. The appeal is by the father of the deceased against the acquittal. We heard Sri. Sreejith S, the learned Counsel for the appellant, Sri. S Sreekumar for the 1[st] respondent as also Smt.S.Ambikadevi, Special Government Pleader for Atrocities against Woman and Children.** **2. The learned Counsel for the appellant argued that the decision relied on by the trial Judge,** _**Appasaheb**_ **Crl.A.(V).38/2019 - 3 -** _**v. State of Maharashtra [2007 (4) KLT 463]**_ **has been overruled by the Hon'ble Supreme Court in** _**Rajinder Singh v. State of Punjab [(2015)6 SCC 477]**_ **. In the present case, there is evidence regarding demand for dowry just prior to the death. The facts also indicate constant harassment of the wife at the hands of the husband; which even provoked the hapless lady to leave her marital home. The prosecution had failed to conduct the case properly and the contradictions in S.161 Statement were not put to PW4-the neighbour who was examined to prove the cruelty of the husband. Reliance is placed on State of** _**Kerala v. Madhu @ Kutti Madhu [2021(1) KHC 351 (DB)]**_ **to urge that such omission of the prosecution is an indication of a fair trial having not been afforded. Reliance is also placed on** _**Satbir Singh v. State of Haryana [2021 CriLJ 2609 ]**_ **, wherein guidelines have been laid down as to how prosecution under S.304B has to be proceeded with and modalities prescribed for sentencing also. It is also argued that the plaint copy of OP No.42 of 2015 relied on by the defence was never marked.** **Crl.A.(V).38/2019 - 4 -** **3. The learned Counsel for the respondent argues that there is not even an iota of evidence satisfying the ingredients under S.304B. The evidence of PW12 would clearly indicate the facts and it was the obstinacy of the father that led to the daughter's death.It is also pointed out that the first version of the father is in tandem with the claim made by the deceased's mother before the Family Court, Kottarakkara. The plaint copy produced was a certified copy issued by the Family Court. The learned Counsel would contend that there is no reason to reverse the judgment.** **4. The admitted facts are that the marriage between the accused and the deceased was on 04.09.2008 and the deceased died on 02.03.2014. PW1 is the father, PW2 the brother and PW3 the sister of the deceased. PWs 1 to 3 spoke about the family of the deceased having agreed to give the accused Rs.3 lakhs and 25 sovereigns at the time of marriage, of which only Rs.2 lakh and 25 sovereigns were given. It is alleged that the wife was subjected to cruelty and harassment on the demand for the** **- 5 -** **Crl.A.(V).38/2019** **balance amount of Rs.1 lakh being not complied with. From the evidence of PWs 1 and 2, it is seen that immediately after the marriage, the wife had left her matrimonial home. Even according to the father-PW1, it was at the instance of the accused, with the intervention of the persons from the Karayogam, the wife went back to her house. A child was also born in the wedlock. It is the further evidence of PWs 1 and 2 that they had promised to give the balance amount of Rs.1 lakh which they could not arrange for. It is hence the accused constantly harassed the wife, which led to the suicide. PW1 also said that just prior to the death, his daughter had called him asking for money and the accused too had telephoned him. Pertinently, but for the allegation of a demand made, there is no evidence of physical violence or mental torture.** **5. PW4 is the Secretary of the NSS Karayogam in which the accused is a member. He deposed that, in 2009, PW1 called him over the telephone to tell him that, it is difficult to carry on the relationship of his daughter** **- 6 -** **Crl.A.(V).38/2019** **with her husband. His intervention as the Secretary of the Karayogam was also sought. After a week, he talked to PWs 1, 2 and the accused, accompanied by two other representatives of the Karayogam. According to him, the only problem was the difference of opinion between the husband and wife and there was no talk of finances. Again the office bearers of the Karayogam along with the brother of the accused went to the house of PW1. In the mediation talk, it was revealed that the daughter of PW1 wanted to live with her husband which PW1 reluctantly agreed to. The daughter of PW1 thus returned to her husband. He reiterated that there was no talk of finances and he had not told the police that the accused had pledged the ornaments of his wife. PW5 was an inquest witness who denied the same. PW6 is the neighbour of the accused who was proffered to speak of the quarrel between the wife and the husband. She turned hostile. PW7 marked the inquest report which was prepared by PW8. PW9 marked the marriage certificate and PW10 is the Village Officer who prepared the scene plan.** **Crl.A.(V).38/2019 - 7 -** **6. PW11 is the ASI who registered the FIR, Ext.P5 based on Ext.P1 FIS by PW1. He categorically stated; in Ext.P1 it was stated by PW1 that at the time of marriage Rs.1 lakh and 25 sovereigns were given by the family of the bride. There is no statement made by PW1, that the balance amounts were promised to be given later. PW12 is the Investigating Officer [I.O] who categorically stated that there was no statement by the representatives of the Karayogam, about any dispute on finances or gold between the husband and wife. It was his statement that PWs 2 and 3, the brother and sister of the deceased in their S.161 statement, spoke of the accused and deceased having a good married life and there was no specific allegation of harassment.** ## **7. There is glaring inconsistency in the** **evidence of PW1, the father, from from that stated in the FIS. The father in the FIS had stated that at the time of marriage the bride's family had given Rs.1 lakh and 25 sovereigns to the bridegroom. There was no whisper about any balance amount, which the bride's family promised to** **Crl.A.(V).38/2019** **- 8 -** **give. The embellishment made by PW1 in Court, of the demand of Rs.3 lakhs and the balance Rs.1 lakh not being paid, obviously, was to suit the prosecution case. PW1's explanation is that, at the time of FIS, he was disturbed and hence the lesser amount was mentioned. We are unable to accede to the said explanation especially since it is a very crucial fact and is one of the essential ingredients of a charge under S.304B. In fact, the specific allegation put forth in the FIS was that Rs.1 lakh and 25 sovereigns given to the bride was appropriated by the husband to conduct the marriage of his sister. He had promised to settle the property in the name of his sister, in the name of PW1's daughter, which later was settled in the name of the mother of the accused. It was also alleged that on the intervention of the Karayogam, the accused had promised to settle the property in the name of his wife. It was also claimed that the balance gold was pledged for renovating the house and often he would ask his wife, money to settle his debts. She was sad and used to inform her father; is** **- 9 -** **Crl.A.(V).38/2019** **the allegation. Before Court, there was a totally different story projected which raises grave suspicion about the allegation itself.** **8. Further it is to be noticed that, the person from the Karayogam-PW4 categorically stated that there were no financial disputes spoken of in the mediation. We agree with the learned Counsel that the Court should not have placed reliance on the plaint copy of OP No.42/2015 by the Family Court Kottarakkara. The document was not even marked. Even then, the initial story spoken of by PW1 differs substantially from his testimony before Court which cuts at the root of the prosecution case.** **9. We do not see any application of** _**Madhu @Kutti Madhu**_ **(supra) which, dealt with a perfunctory initial investigation coupled with a cursory and unskilled prosecution having resulted in miscarriage of justice and consequential unmeritted acquittal of the accused. The vague questions under S. 154 of the Evidence Act and failure of the prosecution to confront the witnesses with their previous statements was one of the reasons in the** **Crl.A.(V).38/2019** ## **- 10 -** **totality of the circumstances, which persuaded the Court to order retrial. We do not find any such compelling circumstances in the present case. We see that PW6 was declared hostile since the witness stated that she does not remember the day that the death occurred and the Police had merely asked her name. The marking of the previous statement definitely cannot offer any corroboration. Further, in the present case we have found the foundational witnesses to have spoken contrary to what was first stated before the Police.** **10. In the totality of the circumstances, as discernible from the evidence, we do not think** _**Appasaheb**_ **having overturned by** _**Rajinder Singh**_ **(both supra) is at all significant.** _**Rajinder Singh**_ **(supra) declared that any money or property or valuable security demanded would necessarily be in connection with or in relation to the marriage and that after marriage, if it is reasonably connected with the death of a married woman, then the ingredients would fall in place. In the present case, as we noticed, the necessary ingredients** **- 11 -** **Crl.A.(V).38/2019** **are not available. There is nothing to show that there was a demand for money in connection with the marriage of the accused and deceased. The story proffered by the father in the FIS was that the accused sought money from the wife for settling his debts. This cannot be said to be a demand for dowry in connection with the marriage. The father did not have any case of demand of dowry at the first instance nor was there any admission of the bride's family having not paid the entire dowry initially agreed upon. Again, but for a casual statement that the accused often used to trouble his wife for money to settle his debts, there is no allegation of harassment and cruelty. Even before Court, PW1 to PW3 did not speak of any physical violence, mental torture or threats levelled.In** _**Satbir Singh**_ **(supra), it was held that the prosecution must at first establish the existence of the necessary ingredients for constituting an offence under S.304B IPC. We do not find any reason to reverse the judgment of the Sessions Court acquitting the appellant. 11. We refer to** _**Chandrappa and others v. State of**_ **Crl.A.(V).38/2019 - 12 -** _**Karnataka (2007 (4) SCC 415)**_ **which restated the** **principles regarding the scope of the power of appellate Court to re-appreciate, review or reconsider evidence and interfere with an acquittal. The general principles were encapsulated in the following manner:** **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** **Crl.A.(V).38/2019** **- 13 -** **disturb the finding of acquittal recorded by the trial court.** **We find no other reasonable conclusion possible from** **the evidence led. The appeal stands dismissed.** **Sd/K. Vinod Chandran Judge Sd/C. Jayachandran Judge** **jma/-**