Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY,THE4H DAY OF OCTOBER201312TH ASWINA, 1935 CRL.A.No. 151 of 2005 ( ) -------------------------- SC.NO. 159/2001 OF ADDL.SESSIONS COURT (ADHOC-I), ERNAKULAM -------------------------------- APPELLANT /COMPLAINANT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE ASSISTANT COMMISSIONER OF POLICE, THRIKKAKARA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. P.MAYA RESPONDENT(S)/ACCUSED : ------------------------------------------- 1. SAVITHRY,W/O.KUTTAPPAN, MANAPPATTUVEETTIL, AMPALLOOR VILLAGE.
2. AMBUJAKSHY, W/O.KUNJIKKAN, KALLUVACHAKADUVEETTIL, NADAMA THEKKUMBHAGOM, VILLAGE. R1 & R2 BY ADV. SRI.C.P.UDAYABHANU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0410-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J.
--------------------------------------- Crl. Appeal No.151 OF2005--------------------------------------- Dated this the 4th day of October, 2013.
JUDGMENT
A daughter and her mother were prosecuted for the offences punishable under Sections 306 and 498A read with Section 34 of Indian Penal Code for having been responsible for the death of the wife of PW1 who is the son of the 2nd accused and the 1st accused is none other than his sister. As the prosecution story goes, PW1 and the deceased fell in love and they eloped. Later on, on 03.04.1994, their marriage was conducted in a temple.
2. It could be seen from the records that PW1, the husband of the victim, did not have any permanent job. On 07.04.1998, it is alleged that the victim poured kerosene on her body and set herself on fire. She was taken to hospital. On getting intimation from the hospital, the Sub Inspector of Police attached to the Hill Palace Police Station went to the General Hospital at Ernakulam and recorded Ext.P15 First Information Statement given by the Crl.Appeal No.151/2005 2 victim herself. Based on the First Information Statement, a crime was registered as per Ext.P16 First Information Report. Inquest was conducted and the body was sent for postmortem and Ext.P13 certificate was drawn up. In the meanwhile, the dying declaration of the victim was recorded by the learned Magistrate concerned and the statement of witnesses were taken by the various investigating officers namely, PWs 15 to 17. After completing investigation, final report was laid before court.
3. The court before which final report was laid took cognizance of the offences and on finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Ernakulam. The said court made over the case to Additional Sessions Court (Adhoc-I), Ernakulam for trial and disposal. The latter court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 306 and 498A IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 17 examined and Exts.P1 to P19 marked. M.O.s 1 and 2 were got identified and marked. The Crl.Appeal No.151/2005 3 defence had Ext.D1 marked.
4. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. The 1st accused stated that she earns a living by casual labour and her husband and mother are not doing well and therefore she could not leave her husband's house. The 2nd accused maintained that she is innocent.
5. On finding that the accused could not be acquitted under Section 232 Cr.P.C, they were asked to enter on their defence. They chose to adduce no evidence.
6. On an analysis of the evidence, the court below came to the conclusion that there was no convincing evidence to show that the victim namely, the wife of PW1 was driven to commit suicide at the behest of the accused persons and there was nothing to show that they have treated the victim cruelly as alleged by the prosecution. Accordingly, the accused were acquitted. The State challenges the acquittal of the accused Crl.Appeal No.151/2005 4 persons in this appeal.
7. Learned Public Prosecutor appearing for the State very vehemently contended that the court below was not justified in acquitting the accused especially in view of the evidence furnished by PWs 2, 3 and 6 who are closely related to the victim. Their evidence show that the victim was continuously harassed and heckled by the accused persons and unable to bear it any more, the victim was driven to commit suicide. According to the learned Public Prosecutor, the 1st accused was more villainous in character and she used to often taunt the victim which made the life of the victim in the matrimonial house miserable.
8. According to the learned Public Prosecutor, the evidence of PWs 2, 3 and 6 will clearly show that the accused persons did not let the victim have a peaceful life in the matrimonial house and she had to shift her residence to a nearby shed and later due to the act committed by the accused persons, she committed suicide. There is no reason to disbelieve PWs 2, 3 and 6 nor is there anything to show that they had any reason to falsely implicate the accused. If their evidence is to be believed, the Crl.Appeal No.151/2005 5 claim of the accused persons that they are innocent cannot be believed. On a reading of their evidence, it could be concluded that the accused were treating the victim cruelly both physically and mentally and that they were responsible for the suicide of the victim. Learned Pubic Prosecutor contended that the acquittal cannot stand.
9. Learned counsel appearing for the accused persons, on the other hand, pointed out that it could be very easily seen from the records that the story of torture, harassment and heckling has been developed at much a later stage. Drawing attention to Ext.P15 First Information Statement, which is admittedly given by the victim herself, it is contended that all that is stated in Ext.P15 is that the 1st accused uttered very obscene words to her and the 2nd accused asked her why she had intervened in the quarrel between PW1 and his brother. No other incident or allegation is there in Ext.P15 to show that the victim committed suicide because of the acts committed by the accused persons. Except for two instances made mention of therein, nothing had been done by the accused persons to the victim. Drawing Crl.Appeal No.151/2005 6 attention also to Ext.P3, which is a letter alleged to have been written by the deceased, learned counsel pointed out that it is not proved in accordance with law. Even assuming that it is in the handwriting of the victim, there is nothing in the letter to show that the accused were responsible for either the suicide of the victim or that they had in any way tortured the victim. Further emphasis is laid on Ext.P10 dying declaration recorded by the learned Magistrate wherein also, according to the learned counsel, there is no mention of any act committed by the accused persons which might have driven the victim to commit suicide.
10. Under the above circumstances, according to the learned counsel, it is difficult to place implicit faith on the evidence of PWs 2, 3 and 6 and it can be easily seen that they have developed a story much later. According to the learned counsel, the court below was perfectly justified in coming to the conclusion that there was absolute want of evidence to hold the accused guilty. Learned counsel went on to point out that the acquittal has to stand.
11. That PW1 married the deceased on 03.04.1994 and Crl.Appeal No.151/2005 7 they were in love before that is not a matter in dispute. In fact, the evidence would show that they had eloped and later on, the family members conducted their marriage in a temple. The couple had a male child in that wedlock. It is not disputed that on 07.04.1998, the victim namely, the wife of PW1, had poured kerosene on her body and set herself on fire. The prosecution would allege that the accused were responsible for the suicide committed by the wife of PW1. The effort of the prosecution was to establish that it was due to the unbearable behaviour and the acts committed by the accused persons which made the life of the victim miserable that the victim had committed suicide. For the purpose of proving the said fact, the prosecution mainly relies on the evidence of PWs 2, 3 and 6. PW2 is none other than the mother of the victim. PW3 is her sister and PW6 is her uncle.
12. A reading of the evidence of PWs 2 and 3 would show that for a considerable time, the couple had lived in the house of PW2 and even two months prior to the date of incident, they were living with PW2. Of course, PWs 2 and 3 do say that the victim complained of constant heckling and harassment by the 1st Crl.Appeal No.151/2005 8 accused who used to taunt her saying that she had not brought anything from home at the time of marriage. However, both PWs 2 and 3 are consistent in their version that the 2nd accused had not done any other act but she only kept silent and had given a passive support. If prosecution is to be believed, it could be concluded that the acts of cruelty were committed by the accused persons.
13. The question is whether the evidence of PWs 2 and 3 can be believed. It is true that they got some support from the evidence of PW6. The evidence of PW6 would show that he had not gone to the matrimonial house of his niece and he has only hearsay knowledge about the incident that is alleged to have taken place in the house of PW1. PW3 does say that her sister had conveyed the ill treatment meted out to her by the accused persons in the matrimonial house which, according to her, made the life of her sister miserable. PW2 would also support PW3 in this regard. Except for saying that they used to pick up quarrel with the victim etc, there is no specific overt act attributed to any of those accused persons nor is there any specific date on which Crl.Appeal No.151/2005 9 the incident is said to have taken place. If, as a matter of fact, PWs 2 and 3 say are true, of course, that would have had some reflection in Ext.P15, Ext.P3 or Ext.P10.
14. That the victim was oriented and conscious and she was in such a position to speak is evident from Ext.P15 which was recorded from the hospital by the Station House Officer concerned. Except for the two acts mentioned in Ext.P15, no other role is attributed to either the 1st accused or the 2nd accused for having been responsible for the death of the victim. The two instances made mention of in Ext.P15 are two isolated instances and there is nothing to show that she was being continuously harassed by the accused. There is no mention in Ext.P15 regarding demand for dowry or regarding the beauty of the victim. All that is stated in Ext.P15 is that her sister-in-law had picked up quarrel with her and the mother-in-law had asked her why she should intervene in the quarrel between PW1 and his brother. Even assuming they are to be true, that by themselves are not sufficient in law to come to the conclusion that the accused have been treating the victim cruelly or in a harsh Crl.Appeal No.151/2005 10 manner. It is also insufficient to come to the conclusion that the acts committed by the accused persons are sufficient to drive the victim to commit suicide. The prosecution produced Ext.P3 as a letter said to have been written by the victim. As rightly pointed out by the learned counsel, it is not proved in accordance with law but it is seen marked. Even a reading of that letter does not indicate that there is any act attributed to the 1st and the 2nd accused which had driven the victim to take such an extreme steps. Except for vague statements, there is no specific reference to any act committed by the accused which made the life of the victim miserable.
15. It is further interesting to note that Ext.P10 is the dying declaration recorded by the learned Magistrate concerned. It is very cryptic and it only shows that the victim poured kerosene on her body and set herself on fire. The learned Magistrate found that she is fully conscious and oriented and she said nothing else. It is important to notice that she did not attribute any role to either the 1st accused or the 2nd accused for having been responsible for her death. When these aspects are looked at, it Crl.Appeal No.151/2005 11 becomes difficult to accept the evidence of PWs 2, 3 and 6 and come to the conclusion that the victim was treated cruelly by the accused persons and that had driven her to commit suicide.
16. It is also interesting to note that at no point of time either PWs 2, 3 or PW6 had intervened and tried to find out a solution to the so called agony that was being undergone by the victim as stated by PWs 2, 3 and 6. In fact, the evidence of PWs 2, 3 and 6 are to the effect that after the couple namely, PW1 and his wife who committed suicide shifted their residence to a shed near to the tharavad house, PWs 2, 3 and 6 visited the couple and they found that they are living happily. It was the above facts and circumstances which made the lower court to find that there was want of evidence to come to the conclusion that either the offence under Section 498A or 306 IPC have been made out.
17. This Court must remind itself that it is sitting in appeal against acquittal and unless it is shown that the findings are either perverse or are contrary to the evidence on record, interference may not be possible. Even assuming that a different Crl.Appeal No.151/2005 12 view is possible, that cannot be by itself a ground to interfere unless it is shown that the finding is perverse. No such infirmity can be seen in the findings of the court below especially in view of the documentary evidence adduced in the case which tell the tale about the incident which lead to the suicide of the victim. Except for a vague statement about the involvement of the accused persons, there is nothing to show that they had any role to play or that they had acted cruelly to the victim. In the result, this appeal is without merit and it is liable to be dismissed. I do so confirming the order passed by the court below. P.BHAVADASAN JUDGE smp