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. 1273 of 2003 ( ) --------------------------- SC.NO. 524/2001 OF ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, KOZHIKODE --------------------------------------- APPELLANT/ACCUSED: -------------------------------------- SAMIKUTTY,S/O.KUTTYSANKARADI, MOONNUKANDATHIL HOUSE, KUNNAMANGALAM AMSOM, DESOM, PATHAM MILE, KOZHIKODE DISTRICT. BY ADV. SRI.P.S.SREEDHARAN PILLAI SRI.C.S.SUNIL RESPONDENT/ COMPLAINANT : ------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0410-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1273 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 04th day of October, 2013
JUDGMENT
Having been prosecuted for the offences punishable under Sections 306 and 498-A of the Indian Penal Code, the sole accused was found guilty of the offence under Section 498-A of IPC alone. He was therefore convicted and sentenced to suffer two years rigorous imprisonment and to pay a fine of 20,000/- and in default of payment of which he has to suffer rigorous imprisonment for six months. It is also directed that if the fine amount was realized, a sum of 10,000/- each shall be paid to the minor children of the deceased.
2. The prosecution relates to two incident which happened on two different dates. The allegation is that on 20.05.1999, at 6.00 p.m., the accused who is the brother of the husband of the deceased victim had gone over to the house of the victim and had picked up a quarrel with her in Crl.A. No. 1273 of 2003 -2- relation to an altercation which the deceased had with the sister of the husband of the victim. It is also alleged that she was beaten by the accused. Two days thereafter, that is on 22.05.1999, the victim set herself on fire. She succumbed to her injuries at about 10.am on 26.05.1999. Initially, a complaint was laid which was registered under the caption "unnatural death". Subsequently, after one month, Ext.P14 report was filed, implicating the accused herein and attributing the offences under Sections 306 and 498-A of IPC as against him. Investigation was conducted and final report was laid.
3. The court before which the final report was laid, took cognizance of the offence. Finding that the offences are exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Kozhikode. The said court made over the case to Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode for trial and disposal. The later court, on receipt of records, framed charges for the Crl.A. No. 1273 of 2003 -3- offences as already made mention of.
4. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had examined PWs 1 to 20 and had Exts. P1 to P18 marked. After the close of prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He pointed out that he and his brother had a dispute regarding the family property and that his relationship with the deceased was cordial and good. He denied of having beaten the deceased.
5. Finding that he could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused examined DW1 and Exts. D1 to D4 marked.
6. On an appreciation of the evidence in this case, the trial court came to the conclusion that there was want of evidence to come to the conclusion that the offence under Section 306 has been made out and accordingly acquitted Crl.A. No. 1273 of 2003 -4- the accused for the said offence. Relying mainly on the evidence of PW3-a neighbour of the accused as well as the victim, the court below came to the conclusion that the accused had assaulted the victim on 20.05.1999 and that is sufficient to attract the provision under Section 498-A of IPC. Accordingly, he was found guilty of the said offence. Conviction and sentence as already mentioned followed.
7. The learned counsel appearing for the appellant contended that by no stretch of imagination, even assuming all what is stated by the prosecution is true and proved, the offence under Section 498-A cannot be attracted to the facts of the case. The learned counsel pointed out that one of the sister of the husband of the victim who had skin disease had handed over toffees to the children of the victim. It was not liked by the victim. She got it back from the children and threw them away. This came to the notice of the accused who questioned the act of the victim and there was some altercation between them. The learned counsel pointed out Crl.A. No. 1273 of 2003 -5- that even assuming that there is evidence to show that he had beaten the victim, that is insufficient to bring the act within the ambit of Section 498-A which pre-supposes continuous or several acts and not an independent or isolated act.
8. The learned counsel also pointed out that the finding of the court below that the evidence of PW3 is acceptable on the basis of finding the accused guilty of the offence under Section 498-A, is not warranted. PW3, according to the learned counsel, had an axe to grind against the accused and it is clear from his evidence. There is no other supporting evidence. If at all the act alleged to have been committed by the accused has to fall under Section 498-A- Explanation (a) which deals with any willful conduct which is of such a nature as is likely to drive the woman to commit suicide........ etc.
9. There is absolutely no evidence of willful conduct Crl.A. No. 1273 of 2003 -6- of the nature made mention of in the provision to attract the offences as far as the accused is concerned. It is accordingly contended that conviction and sentence cannot stand.
10. The learned Public Prosecutor was at pain to support the finding and conviction and sentence passed by the court below for the offence under Section 498-A of IPC. He tried to salvage the position by pointing out that there is evidence to show that the accused had assaulted the victim on 20.05.1999 and that would be sufficient.
11. One can only wish that one could agree with the learned Public Prosecutor. Section 498-A reads as follows: "Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-- For the purpose of this Section, "Cruelty" means-- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or Crl.A. No. 1273 of 2003 -7- health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." (.... rest of the portion omitted as it is unnecessary) 12. All that the prosecution has been able to prove, assuming the evidence of PW3 to be acceptable, is that he had seen the victim being assaulted by the accused. One has to remember that even though in chief examination, he would say that he was friendly with the accused but in cross examination it was brought out that he was accused in one of the criminal cases filed by the accused and there was a suit also pending against him for having cut open away the property of the accused. It therefore shows that he was a motivated witness and he had interest to achieve in speaking against the accused. Even otherwise, on a reading of the evidence as a whole, it can be seen that little reliance can be placed on his evidence or PW3. Crl.A. No. 1273 of 2003 -8- 13. But as rightly pointed out by the learned counsel for the appellant, even assuming that there was an assault, it is too difficult to accept the finding of the court below that, that is sufficient to attract the provision under Section 498-A of IPC. The penal provision contemplates that there is series of acts which is willful in nature and which is likely to drive the woman to commit suicide. There is nothing to indicate in the case on hand that the suicide committed on 22.05.1999 was as a result of the assault alleged to have been committed by the accused, even assuming that the said act has been proved. It can be seen that it is an accidental act, if at all, it is treated as proved, it cannot fall within the ambit of Section 498-A of IPC. The defence has explained the incident that took place on 20.05.1999. The explanation offered is probable.
14. This Court is unable to accept the finding of the court below that the offence under Section 498-A of IPC is made out as against the accused. Crl.A. No. 1273 of 2003 -9- In the result, this appeal is allowed. Conviction and sentence passed by the lower court for the offence punishable under Section 498-A of IPC are set aside and it is held he is not guilty of the said offence. His bail bond shall stand cancelled. He is set at liberty. If he has paid the fine amount, the same shall be refunded to him. Sd/- P.BHAVADASAN JUDGE ds //True Copy// P.A. To Judge