Kerala High Court
Court (Adhoc)Ii vs Omanakuttan on 20 July, 2017
        

 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT:

                      THE HONOURABLE MR. JUSTICE P.UBAID

         THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939

                              CRL.A.No. 541 of 2009 ( )
                               --------------------------
   AGAINST THE JUDGMENT IN S.C.276/2007 OF THE ADDITIONAL SESSIONS
                            COURT (ADHOC)II, KOTTAYAM

APPELLANT(S)/ACCUSED:
--------------------

       1.      OMANAKUTTAN, S/O. BHASKARAN NAIR,
               AGED 38, USHAS HOUSE, PAPPANCHIRA,
               ITHITHANAM, KURICHY.

       2.      BALAKRISHNAN,
               S/O.BHASKARAN NAIR, AGED 40,
               BALAKRISHNA VILASOM, PAPPANCHIRA,
               ITHITHANAM, KURICHY.

       3.      CHELLAMMA,
                W/O. BHASKARAN NAIR, AGED 65,
                BALAKRISHNA VILASOM, PAPPANCHIRA,
                ITHITHANAM, KURICHY.

       4.      BHASKARAN NAIR, AGED 72,
               S/O. PADMANABHAN NAIR,, BALAKRISHNA VILASOM,
               PAPPANCHIRA, ITHITHANAM, KURICHY.


                BY ADVS.SRI.B.RAMAN PILLAI
                         SRI.ANIL K.MOHAMMED
                         SRI.R.ANIL
                         SRI.T.ANIL KUMAR
                         SRI.MANU TOM
                         SRI.SUJESH MENON V.B.
                         SRI.SHYAM ARAVIND

RESPONDENT(S)/COMPLAINANT:
----------------------------------

             STATE OF KERALA, REPRESENTED BY THE
             DY. S.P OF POLICE CRIME DETACHMENT,
             KOTTAYAM IN CRIME NO. 58/07 OF THE
             CHINGAVANAM POLICE STATION.

             BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA

         THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-017,
THE COURT ON 20-07-2017 DELIVERED THE FOLLOWING:



                           P.UBAID, J.
                        ~~~~~~~~~~
                     Crl.A No.541 of 2009
                       ~~~~~~~~~~~
                Dated this the 20th July, 2017


                        J U D G M E N T

The appellants herein are the four accused in S.C 276/2007 of the Court of Session, Kottayam. They faced prosecution in the court below under Sections 498A, 306 and 304-B read with 34 of the Indian Penal Code, on the allegation that they abetted the commission of suicide by one Ambily by a course of cruel conduct, including the persistent demand for dowry. Ambily was married by the 1st accused on 9.11.2000. She consumed poison at the matrimonial home on 12.2.2007. She was immediately taken to the Medical College Hospital, Kottayam, where she died at about 6.15 a.m on 13.2.2007 while undergoing treatment. The 2nd accused is the brother of the 1st accused, and the accused Nos.3 and 4 are the parents.

2. The prosecution case is that deceased Ambily had been subjected to much mental and physical harassment by her husband and the in-laws by, and in connection with their persistent demand for dowry, and that Crl.A No.541 of 2009 Ambily put an end to her life by consuming poison, when she felt the acts of cruelty at the hands of her husband and the in-laws unbearable, or when her miseries in life due to the said acts of cruelty aggravated day by day. On the complaint made by the brother of deceased Ambily, the Police registered the crime initially under Section 174 Cr.P.C. After investigation, the Police submitted final report against the husband and the in-laws under Sections 498A306 and 304-B I.P.C before the Judicial First Class Magistrate Court, Changanassery. On committal, the case came up before the Court of Session, from where it was made over to the learned Additional Sessions Judge (Adhoc) II, Kottayam for trial and disposal.

3. The accused appeared before the trial court, and pleaded not guilty to the charge framed against them under Sections 498A306 and 304B read with 34 of I.P.C. The prosecution examined 14 witnesses in the trial court, and proved Exts.P1 to P11 documents. When examined under Section 313Cr.P.C, all the accused denied the incriminating circumstances and projected a defence that deceased Crl.A No.541 of 2009 Ambily had been quarrelsome, that she had her own reason to commit suicide, and that she had never been mentally or physically ill-treated by them in any manner. The accused examined three witnesses in defence. Ext.D1 portion of the statements given by PW3 to the Police was also marked on their side. The MO1 bottle of poison seized by the Police from the seen of incident was also identified during trial.

4. On an appreciation of the evidence, the trial court found all the accused guilty under all the three sections. On conviction, they were sentenced to undergo rigorous imprisonment for 7 years each under Section 304-B I.P.C, to undergo rigorous imprisonment for two years each and to pay a fine of 5000/- each under Section 498A I.P.C, and to undergo another term of rigorous imprisonment for three years each, and to pay a fine of 10,000/- each under Section 306 I.P.C, by judgment dated 12.3.2009. Aggrieved by the judgment of conviction, the accused have come up in appeal.

5. When this appeal came up for hearing, the learned senior counsel for the appellant submitted that there Crl.A No.541 of 2009 is absolutely no evidence in this case to prove the essentials of the offence of dowry death punishable under Section 304B I.P.C or even to prove that commission of suicide by Ambily was in any manner abetted by any of these accused, and also that the evidence adduced by the prosecution would not convincingly and satisfactorily prove that deceased Ambily had been subjected to any sort of cruelty by any of the accused. The learned senior counsel also pointed out some statements given by the material witnesses that on many occasions, Ambily had picked up quarrel with her husband on the ground that the parents of her husband declined to assign some property in his name, as agreed and offered by them, at the time of marriage. On the other hand, the learned Public Prosecutor submitted that the evidence adduced by the prosecution would unerringly prove that Ambily had only miseries in her marital life, and that she had been mentally and physically harassed by her husband and the in-laws by a course of cruel conduct by demanding more dowry and ornaments, and even otherwise. The learned Public Prosecutor did not argue Crl.A No.541 of 2009much about the submissions made by the defence as regard the offence under Section 304-B I.P.C.

6. Of the 14 witnesses examined in the trial court, PW1 is the brother of deceased Ambily, PW2 is her mother and PW3 is a cousin sister of Ambily. PW4 is the Revenue Tahsildar who conducted inquest over the body of the deceased, PW7 is only an attestor to the Ext.P4 scene mahazar, PW5 is the lawyer examined to prove that some three days prior to the date of death, Ambily had approached him to file a petition for divorce in the Family Court on the ground of cruelty, PW6 is the Sub Inspector examined to prove that on 12.5.2005 Ambily had filed a petition against her husband alleging neglect and failure to pay maintenance, PW8 is the Head Constable, who attested the Ext.P5 seizure mahazar for the seizure of Ext.P3 petition of Ambily, proved by PW6, PW9 is the Police Constable who witnessed the seizure of the MO1 bottle of poison, PW10 is the Secretary of the N.S.S. Karayogam examined to prove the Ext.P7 marriage certificate, PW11 is the neighbour of PW2 examined to speak about the case of cruelty retold to Crl.A No.541 of 2009 him by the mother of the deceased, PW12 is the paternal uncle of the deceased, examined to prove the allegations of cruelty, PW13 is the Police Officer who investigated the case and PW14 is the Sub Inspector who registered the F.I.R. Of the three witnesses examined in defence, DW1 is the person who had purchased 15 cents of property from PW2 . DW2 is a neighbour of the accused examined to prove the negative aspect that there was nothing wrong in between the deceased and the 1st accused, and DW3 is the provision shop owner examined to prove that payment for all the grocery items purchased by deceased Ambily for the day- today needs was made by the 1st accused and not by PW2. DW2 has also given evidence that deceased Ambily was somewhat quarrelsome, and he had occasion to witness this.

7. This is a case of commission of suicide by a wife within seven years from the date of her marriage. The prosecution alleges that commission of suicide by the lady was abetted by her husband and the in-laws, and also that she had been harassed mentally and physically by them by Crl.A No.541 of 2009or in connection with demand for dowry. Let me first examine whether the prosecution allegation under Section 304B I.P.C is acceptable, or whether such a conviction is sustainable. In a case where the offence punishable under Section 304-B I.P.C is alleged by the prosecution, the concern of the court must be whether there are the essential elements of the said offence in the evidence given by the material witnesses, or in the other materials projected by the prosecution by way of circumstantial evidence. Section 304-B I.P.C runs as follows:

“Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage, and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused dowry death.

Sub-section 2 provides the sentence, that the offence of dowry death shall be punishable with imprisonment for a term which shall not be less than seven years, but which Crl.A No.541 of 2009may extend to imprisonment for life.

8. So, many ingredients will have to be satisfied in a prosecution brought under Section 304-B I.P.C. Those ingredients are:

a. The death of a woman due to burns or bodily injury, or otherwise than under normal circumstances;

b. That the death occurred within seven years from the date of the marriage;

c. That she had been subjected to cruelty or harassment by her husband or the relatives of the husband, for, or in connection with dowry, soon before her death

9. One of the essentials to constitute the offence under Section 304B I.P.C is that the deceased had been subjected to mental or physical harassment or cruelty in connection with any demand for dowry, soon before her death. Such mental or physical harassment, some time back or years back, or having no proximity with the date of death, will not come under Section 304B I.P.C.

10. In Vipin Jaiswal v. State of Andhra Pradesh [ AIR 2013 SC 1567], the Hon’ble Supreme Court held that Crl.A No.541 of 2009 in a case brought under Section 304B I.P.C, the prosecution will have to prove beyond reasonable doubt that the accused had subjected the victim to cruelty as defined under Section 498A I.P.C, and that such harassment was made in connection with demand for dowry soon before the death. In Panchanand Mandal Alias Pachan Mandal and Another v. State of Jharkhand[(2013) 9 SCC 800], the Hon’ble Supreme Court held that in a case where evidence is not adequate to prove that the victim had been subjected to cruelty or harassment in connection with any demand for dowry soon before her death, the accused cannot be convicted under Section 304B I.P.C. The Hon’ble Supreme Court held that the element “soon before the death” is very important, and such proximity between the date of death and the alleged acts of cruelty for, or in connection with demand for dowry must be proved by the prosecution. In Baijnath and others v. State of Madhya Pradesh [ AIR 2016 SC 5313], the Hon’ble Supreme Court explained that the accused cannot be convicted under Section 304Bby applying the presumption under Crl.A No.541 of 2009 Section 113B of the Indian Evidence Act, in a case where the prosecution has failed to prove the proximity in between the date of death and the alleged acts of cruelty, that the deceased had been subjected to cruelty or harassment in connection with demand for dowry soon before the death. Thus, the Hon’ble Supreme Court has consistently held that cruelty or harassment in connection with demand for dowry soon before the death of the victim should be proved in a prosecution under Section 304B I.P.C.

11. There is nothing in the evidence of the material witnesses including the mother of the deceased, in this case to prove that there had been such demand amounting to cruelty soon before the death of Ambily. PW2, the mother, PW12, the uncle, the brother examined as PW1, and also the cousin examined as PW3 have given evidence regarding some acts of cruelty and harassment undergone by the deceased at the matrimonial home till 2005, when she made a complaint alleging such cruelty and neglect on the part of the husband. Regarding the acceptability of the evidence of cruelty, I will discuss things later. There is Crl.A No.541 of 2009 nothing in the evidence of any of the material witnesses to show that there had been such demand for dowry and ornaments by any of the accused in this case soon before the death of Ambily. It has come out in evidence that in 2005, Ambily had made a complaint before the Police, and a few days prior to the commission of suicide Ambily had approached a Lawyer for filing a case for divorce on the ground of cruelty, and also for realisation of the money and ornaments due from him. This evidence will show that in between 2005 and February, 2007 also, Ambily had undergone some sort of cruel treatment at the hands of her husband at the matrimonial home. But the very essential element that she had been harassed or ill-treated by demand for dowry and ornaments soon before the death, or at any time just prior to the death is absent in the evidence of the material witnesses. Thus, I find that the prosecution has failed to prove the offence punishable under Section 304-B I.P.C in this case. So the said conviction is liable to be set aside.

12. Now let me see whether commission of suicide Crl.A No.541 of 2009 by Ambily was in any manner abetted by any of the accused. Before coming to that aspect, let me see whether the allegation of cruelty stands proved, as defined under Section 498A I.P.C. The cruelty alleged or the cruelty meant under Section 304B I.P.C, must be physical or mental harassment for, or in connection with demand for dowry. But any act of cruelty, mental or physical, whether it was in connection with demand for dowry or not, will come within the purview of Section 498A I.P.C. PW2 and PW3, the mother and the cousin of the deceased have stated about so many instances of cruelty told by the deceased. Of course, PW1 has no direct knowledge about such things. His evidence regarding cruelty is simply on the basis of what the mother told him. The evidence of the paternal uncle is also on the basis of what PW2 told him. So, PW1 and PW12 cannot be said to be material witnesses in this case, because their evidence regarding cruelty will have only the value of hear-say evidence. But that is not the case of the evidence given by PW2 and PW3. It has come out in evidence that Ambily and her husband started residing Crl.A No.541 of 2009 separately from the Tharavdu house since 2003-2004. There is no clear evidence on this aspect as to whether it was since 2003 or 2004. However, on an examination of the evidence, I find that they must have separated from the Tharavadu house either at the end of 2003, or at the beginning of 2004. The evidence given by PW2 and PW12 regarding cruelty is not satisfactory as against the parents- in-law and the brother-in-law. What is at the best proved as against them by their evidence is that on one or two occasions, the brother-in-law had assaulted the deceased, or on some occasions the mother-in-law had scolded her. This evidence is not sufficient to constitute harassment by a course of cruel conduct, as meant under Section 498A I.P.C. True it is, that the deceased had told PW2 and PW3 about her miseries in matrimony, or the different instances of harassment, she had to undergo at the matrimonial home. But every time, or most of the times, her complaint was practically against the husband, and not against the in-laws. Of course, there were some stray instances involving the in- laws also, but the evidence on this aspect is not very definite Crl.A No.541 of 2009 and clear to bring it within the purview of Section 498A I.P.C. The cruelty meant under Section 498A I.P.C must be cruelty by way of some voluntary acts or culpable acts constituting a course of cruel conduct, subjecting the victim to some sort of mental or physical harassment. Such evidence is there only as against the husband, and not against the in-laws. Just because the in-laws on one or two occasions had scolded the daughter-in-law, or just because the brother-in- law had on one occasion assaulted her, they cannot be prosecuted under Section 498A I.P.C. But as against the husband (1st accused) there is clear evidence given by PW2 and PW3 regarding the statements given to them by the deceased.

13. PW6 is the Lawyer examined to prove that some two or three days prior to the death of Ambily, she had approached him to file a petition for divorce. His evidence is that Ambily’s demand was to realise the amount of 3 lakhs and the ornaments due from her husband, and also to obtain divorce on the ground of cruelty. The Lawyer affirmed in evidence that Ambily had told him about the Crl.A No.541 of 2009 cruelty she had to undergo at the matrimonial home. Ambily approached the Lawyer two or three days prior to her death. She was advised by him to bring the marriage certificate and other documents. After three days, Ambily’s mother came and told him that Ambily is no more. This evidence given by PW5 stands not discredited in any manner. He has given evidence regarding the versions or the statements of Ambily regarding her miseries in life or the cruelty or harassment she had to undergo at the hands of her husband.

14. On an appreciation of the evidence as discussed above, I find that the prosecution has clearly proved the allegations of cruelty, that Ambily had been subjected to mental or physical harassment by her husband at the matrimonial home while residing together with the parents- in-law and also after separation at the end of 2003 or at the beginning of 2004. The witnesses are consistent that even after they started residing separately, the 1st accused continued his cruel habits. A clear case of cruelty as meant under Section 498A stands well proved by the evidence of Crl.A No.541 of 2009 PW2, PW3 and PW5. I am well satisfied by their evidence that Ambily had been subjected to harassment by a continuous course of cruel conduct by the 1st accused while residing at the matrimonial home with the parents-in-law and even thereafter, while residing separately from them. This constitutes the offence punishable under Section 498A I.P.C and I find that the 1st accused is liable for conviction under Section 498A I.P.C

15. Now the question is whether there is evidence to prove the offence punishable under Section 306I.P.C. Of course, PW2 and PW3 have stated that Ambily committed suicide due to the cruelty of her husband and the in-laws. This evidence will not by itself prove the offence punishable under Section 306 I.P.C. For a conviction under Section 306 I.P.C, there must be evidence to prove the nexus between the alleged acts of the accused and the commission of suicide by the victim. Relying on Sanju Sanjay Singh Sengar v. State of Madhya Pradesh [AIR 2002 SC 1998],wherein the Hon’ble Supreme Court held that even a provocation made by the husband to the wife ‘to go and die’ Crl.A No.541 of 2009will not constitute abetment of suicide under Section 306 I.P.C, this Court held in Faisal v. State of Kerala [ 2016 (2) KHC 578] that in a prosecution under Section 306 I.P.C, the prosecution will have to prove the nexus between the alleged acts of the accused and the commission of suicide. What is important or relevant is not whether the deceased was provoked to commit suicide, but whether the accused had done anything positive by his words or conduct to drive the victim to the commission of suicide.

16. The evidence given by PW2 in cross-examination shows that two or three days prior to the commission of suicide, Ambily had called her over telephone and had told her that she would not commit suicide, and she was determined to fight, or she would show how to live, or survive. It appears that Ambily happened to make such a statement some two or three days prior to the death, due to some act of assault on the part of the husband. When she met the lawyer some three days back, her demand was to get divorce, and also to realise the money and ornaments due from the 1st accused. The evidence given by the lawyer Crl.A No.541 of 2009 does not contain anything to show that Ambily was in a dejected or disappointed mood at that time, or that she appeared to be really melancholic, or as a woman who has lost all hopes in life. The evidence of the mother shows that despite the cruel treatment of her husband, she was determined to fight, or that she was confident that she could survive the challenges in life including the negative conduct of her husband. That is why she told the mother that she would not commit suicide, and that she was determined to fight and show to others how to live. This the clear evidence given by the mother when cross-examined by the defence. To extract from the evidence of PW2 about what Ambily told her over telephone, “%N 5xEa fdIWV 5bGI. >^X 2x_A\a”

&vYDcef:On_\o.e<`U_:na 5^C_:na f5^?aAa” .Ka IyE^Cme gI^ODm (Mother please don’t cry and aggravate your blood pressure. I will never commit suicide, I will show how to live”)

17. The above statement extracted from the evidence of PW2, as the statement told by the Crl.A No.541 of 2009 deceased shows that the cruelty of her husband was not the immediate cause of the commission of suicide. It is not known what exactly led her to the commission of suicide. Every act of cruelty may not by itself amount to abetment as meant under Section 306 I.P.C. What is required for a prosecution under Section 306 I.P.C is cruelty or negative conduct of extreme nature and degree, which will have the effect of driving the victim to the commission of suicide. To attract Section 306 I.P.C, on the allegation of matrimonial cruelty “there must be a situation where the act of the accused would, in ordinary circumstances, drive the victim to the commission of suicide” (Faisal’s case).

18. On an appreciation of the evidence given by PW2 and PW3, what this Court finds is that deceased Ambily had some miseries in her life due to the ways of her husband, or the cruel ways or her husband, but evidence does not satisfy the court that it was those acts of cruelty that drove Ambily to the commission of suicide. Just because there is a presumption under Section 113A of the Evidence Act, the court cannot mechanically convict the accused. Crl.A No.541 of 2009 Presumption is always a rule of evidence. A presumption even when it is conclusive in nature, will not get the sanctity of legal evidence. A presumption alone will not in normal circumstances prove the guilt of the accused. The prosecution is bound to prove the elements of cruelty, and also the nexus in between the alleged acts of the accused and the commission of suicide. When the prosecution has failed to prove such a nexus, the court cannot draw the presumption under Section 113A of the Evidence Act and punish the accused under Section 306 I.P.C. This is the position settled by this Court and the Hon’ble Supreme Court consistently as regards Section 306 I.P.C and the application of Section 113A of the Indian Evidence Act. In this case, I find that the prosecution has failed to prove the necessary elements of 306 I.P.C, or the required nexus in between the acts of the accused and the commission of suicide.

19. As found above, the conviction under Section 498A I.P.C made by the court below will have to be confirmed, but the other convictions are liable to be set Crl.A No.541 of 2009 aside. The sentence imposed by the court below under Section 498A I.P.C is rigorous imprisonment for two years and a fine of 5000/-. I find no scope for interference in the sentence in the particular facts and circumstances of the case. That the two children born in the wedlock are now with the 1st accused, is not a ground to reduce the sentence. The accused Nos.2 to 4 are found not guilty of any of the offences alleged against them.

In the result, this appeal is allowed in part. The accused Nos.2 to 4 (the appellants 2 to 4) are found not guilty of the offences under Sections 498A306 and 304B I.P.C and accordingly, they are acquitted of those offences in appeal under Section 386(b)(i) of the Cr.P.C. The conviction and sentence against them imposed by the court below in S.C 276/2007 will stand set aside. The 1st appellant (1st accused) is found guilty under Section 498A I.P.C, and the said conviction is confirmed. However, the conviction and sentence against him under Sections 306 and 304B I.P.C will stand set aside on the finding that he is not guilty of those offences, and as regards those offences, he Crl.A No.541 of 2009will stand acquitted. While confirming the conviction as against the 1st accused under Section 498AI.P.C, the sentence imposed by the court below is also confirmed. He will get the benefit of set off as already ordered by the trial court.

Sd/-

P.UBAID JUDGE ma /True copy/ P.S to Judge

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