Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY,THE26H DAY OF NOVEMBER20135TH AGRAHAYANA, 1935 CRL.A.No. 1041 of 2005 ( ) --------------------------- AGAINST THE JUDGMENT
IN SC592002 OF ADDL.SESSIONS (FAST TRACK COURT - I), ALAPPUZHA DATED1806-2005 ------------------ APPELLANT / ACCUSED : --------------------------------------- RAJAN, S/O.PADMANABHAN, RAJAN NIVAS, RAMAPURAM THEKKUMURI, KOORIKKADU VILLAGE. BY ADV. SRI.C.RAJENDRAN RESPONDENT / COMPLAINANT : ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE DY. S.P. KAYAMKULAM (CRIME NO.97/2000) KAREELAKULANGARA POLICE STATION THORUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON2611-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P.BHAVADASAN, J.
--------------------------------------- Crl. Appeal No.1041 OF2005--------------------------------------- Dated this the 26th day of November, 2013.
JUDGMENT
The accused was prosecuted for the offences punishable under Sections 306 and 498A of Indian Penal Code. He was found guilty of both counts. Accordingly, he was convicted and sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.20,000/- with default clause of simple imprisonment for one year under Section 306 IPC and also to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- with default clause of simple imprisonment for three months under Section 498A IPC. The substantive sentences were directed to run concurrently. Set off as per law was allowed.
2. As per the prosecution allegations, the marriage between the victim and the accused had taken place on 26.09.1999 under the guidance of PW16. The couple took up residence in the matrimonial house. The allegation is that soon after the marriage, the accused began to ill-treat the victim Crl. Appeal No.1041/2005 2 demanding more dowry, coming home drunk and beating the victim was a routine affair and unable to put up with the torture any more, on 22.04.2000, she set herself on fire. Though she was removed to the hospital, she did not survive.
3. PW1, the brother of Sulochana, the victim, on the next day at 8 a.m laid Ext.P1 First Information Statement. That was recorded by PW20 who registered a crime a per Ext.P1(a) First Information Report. He took over the investigation and prepared Ext.P10 scene mahazar. He seized M.O.s 2 to 5 from the place of occurrence. He had the inquest conducted by the R.D.O and sent the body for postmortem. PW3, Forensic Surgeon conducted the autopsy and prepared Ext.P3 report. PW20 recorded the statement of witnesses and after arresting the accused, filed necessary report before court. He completed the investigation and laid charge before court.
4. 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, Alappuzha under Section 209 Crl. Appeal No.1041/2005 3 Cr.P.C. The said court made over the case to Additional Sessions Court, Fast Track-I, Alappuzha 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 498A and 306 IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 20 examined and Exts.P1 to P14 marked. M.O.s 1 to 5 were got identified and marked. From the defence side, Exts.D1 to D3 were marked.
5. After the close of the 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 stated that he had not married the victim as per the customary rites and they had never been living as husband and wife. She was only a neighbour to him and she had mental abrasions. On the date of the incident, according to the accused, the victim had come to his house and poured kerosene on her body without any reason and she set herself on fire. Hearing her cries, people gathered at the place Crl. Appeal No.1041/2005 4 and she was removed to the hospital. He too had tried to save the victim and in the process, he suffered burns for which he had undergone treatment.
6. On finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. He chose to adduce no evidence.
7. The court below considerably impressed by the evidence of PWs 1, 5, 8, 9, 16, 17 and 18, most of them are close relatives of the victim, formed the opinion that the offences have been made out and accordingly, he was found guilty and the conviction and sentence followed.
8. Learned counsel appearing for the appellant assailed the findings of the court below on several grounds. Learned counsel pointed out that the court below has acted mechanically in narrating the evidence of the above witnesses and it has not critically analysed the evidence. Most of the crucial statements made by these witnesses at the time of evidence are conspicuously absent in their previous statements and those statements thus spoken in court could not have been acted upon. Crl. Appeal No.1041/2005 5 Almost all the witnesses relied on say that the victim was beaten mercilessly almost everyday. It is significant to notice that no treatment was ever taken nor there was any visible injury on her body. Drawing specific attention to an incident which took place on the alleged date, it is pointed out that going by the evidence of PW5, the victim after having beaten was thrown out of the house and dragged along a barbed wire fence. Even going by the evidence adduced by the prosecution, that caused severe injuries on the body of the victim. Referring to Ext.P3, learned counsel pointed out that the doctor concerned does not make mention of any such anti mortem injuries corresponding to the injuries spoken to by PW5. That belies the said version.
9. Learned counsel for the appellant went on to point out that PWs 1, 8, 9 and 18 are the siblings of the victim and their knowledge about the cruelty is only as told to them by the victim and they have no direct knowledge. It is not clear from their evidence, according to the learned counsel, for what purpose the accused was assaulting the victim. Though there is a vague suggestion that there was demand for more dowry, there is no Crl. Appeal No.1041/2005 6 specific claim put forward by any of the witnesses, of the accused having demanded more gold or money. It is, therefore, difficult to believe, according to the learned counsel, that the accused would have simply come home drunk and beaten the victim.
10. Learned counsel appearing for the appellant then went on to point out that even assuming that there was assault committed by the accused on the victim and also accepting that it was almost a routine affair, it is difficult to come to the conclusion that, that by itself is sufficient to attract the offence under Section 306 IPC. The offence under Section 498A IPC may be made out. But, the prosecution has a long way to travel from there to reach the offence under Section 306 IPC. There is nothing to indicate that the accused either intended that the victim should commit suicide or that he created such a situation on that particular day that she had no option but to commit suicide. At any rate, according to the learned counsel, the conviction and sentence under Section 306 IPC cannot stand.
11. Learned Public Prosecutor, on the other hand, contended that unlike in any other case, here is overwhelming Crl. Appeal No.1041/2005 7 evidence regarding ill-treatment meted out by the accused on the victim and there is no reason to disbelieve PWs 1, 5, 8, 9, 16, 17 and 18. True, most of them are closely related to the victim. But, according to the learned Public Prosecutor, none else can speak about the ill-treatment meted out to a lady. Learned Public Prosecutor also drew attention of this Court to the fact that it is not as if that the prosecution did not attempt to adduce independent evidence. They examined a few neighbours to prove ill-treatment. But, unfortunately, for the prosecution, they turned hostile though some of them too admit that they were living together. Even assuming that the evidence of PWs 1, 8, 9, 16, 17 and 18 open to some doubt, that is not the case of the evidence of PW5. On the eventful day and on the previous day, PW5 happened to be in the house of the victim and he narrates the details of what had transpired in the house on those two days. There is nothing to show that he had any oblique motive or ill-will towards the accused to falsely implicate him. The evidence of PW5 is clinching to the effect that the accused ill- treated the victim. Crl. Appeal No.1041/2005 8 12. Learned Public Prosecutor went on to point out that the evidence of PWs 1, 5, 8, 9, 16, 17 and 18 is clear to the effect that not a day passed without the accused coming home fully drunk and beating up his wife. It is only natural to assume that the life was hell for the victim in the matrimonial house. Thus it could not be said that the offence under Section 306 IPC cannot be attracted. In short, the contention is that the conviction and sentence do not call for any interference.
13. The accused when questioned under Section 313 Cr.P.C denied the marriage between him and the victim. He also went to the extent of saying that they had never resided together. His case was that the victim was suffering from mental abrasion and on the date of the incident, she simply came to the house of the accused, poured kerosene on her body and set herself on fire. This is not to say that the prosecution case starts from that point but only to elucidate the stand taken by the accused in his defence.
14. As rightly pointed out by the learned counsel for the appellant, PWs 1, 5, 8, 9, 16, 17 and 18 are closely related to the Crl. Appeal No.1041/2005 9 victim. Going by the evidence of PWs 8 and 17, the marriage between the victim and the accused was on 26.09.1999. They would say that the parties belong to Ezhava community and the marriage was conducted according to customary rites of Ezhava community. Here learned counsel for the appellant referred to the evidence of PW16 who claims to have conducted the marriage. According to him, the marriage was conducted in Bhadrakali temple. It is not normally done according to learned counsel. In fact, PW16 accepts that suggestion. But, in the light of the evidence furnished by PWs 1, 8, 9, 17 and 18, it becomes difficult to accept the case of the accused that there was no marriage. There is overwhelming evidence to show that they were residing together. It is here that the witnesses who turned hostile namely, PWs 6, 10 etc. do say that the victim and the accused were residing together though they may feign ignorance about their marriage. The evidence of PWs 1, 8, 9, 17 and 18 are clear to the effect that the accused used to ill-treat the victim almost everyday coming home drunk and according to them, that was for more dowry. Crl. Appeal No.1041/2005 10 15. It has come out in evidence that both the victim as well as the accused had married for the second time. The evidence of PWs 1, 8, 9, 17 and 18 are sufficient to show that the life of the victim was far from pleasant in the matrimonial house. PW1 in no less terms says that it was at his instance that the marriage was conducted. PW1 would also go on to say that in fact they had complained to the community heads regarding the ill- treatment meted out to the victim but it yielded no result.
16. PW8 is the elder sister of the victim. She is one of the witnesses who spoke about the marriage in the family temple. According to her, the complaint of the accused was that he had not been given adequate dowry. She too would depose that the accused had developed a disliking for the victim and he used to come home drunk everyday.
17. PW9 is yet another sister of the victim. She would say that after the marriage, the couple had taken up residence in the house bought by them in the name of the victim. She would also go on to say that at the time of marriage, 8= sovereigns of gold were given to the victim. She would say that whenever the Crl. Appeal No.1041/2005 11 victim used to complain to her about the il-treatment, she tried to pacify her and make her believe that things would turn out alright in future.
18. PW17 is the brother-in-law of the victim. He claims to have participated in the marriage between the victim and the accused. He asserts that their marriage was in accordance with the customary rites of Ezhava community. He would say that the property in which the couple took up residence was purchased in the name of the victim before one month of their marriage.
19. PW18 is the eldest sister of the victim. She says about the ill-treatment. She also speaks about the purchase of property in the name of Sulochana, the victim covered by Ext.P11 document.
20. As rightly pointed out by the learned counsel for the appellant, the above witnesses speak out the incident as told to them by the victim. None of them had a case that they had occasion to see the accused assaulting or ill-treating the victim.
21. But, the evidence of PW5 stands on an entirely different footing. It must be noticed that he is closely related to the Crl. Appeal No.1041/2005 12 victim. He says that for a few days prior to the incident, he has been staying with the victim. He was studying in the nearby U.P. School. According to him, the accused leaves for work early in the morning and returns in the night. He comes home in the night in an inebriated condition and as soon as he enters the house, immediately he showers abuses on the victim. He would say that when they knew that the accused coming home drunk, they used to hide in the kitchen and then the accused used to pull out the victim and assault her. He would also say that he too was beaten by the accused. On the date of the incident, in the morning, he and the victim had gone to the house of the victim and he was cautioned by the victim not to reveal what had transpired in the morning in her house. On the previous day, according to PW5, in the night, the accused came home fully drunk and asked the victim to open the door. When the victim refused to do so, he broke open the door and then PW5 says that the routine assault followed. Crying aloud, the victim ran outside and she fell on the floor and the accused in fury, dragged her along the fence. As regards the incident, his evidence is that Crl. Appeal No.1041/2005 13 hearing a loud cry, when he reached the place, he saw the victim on fire. He also speaks about the assault on the victim earlier on the day.
22. Of course, there are minor contradictions brought out in the evidence of PW5 with reference to his earlier statement. But, there is no challenge to his claim that he was residing with the victim from a few days prior to the date of incident and also on the date of incident. There is no suggestion also to him that he had any reason to falsely implicate the accused. His evidence, at any rate, appears to be natural, cogent and convincing in spite of certain deficiencies pointed out by the learned counsel for the appellant. Such infirmities are bound to occur when the witnesses depose after few years and one cannot expect mathematical precision. It must be noticed that contradictions and inconsistencies pointed out in the evidence of PW5 do not affect the core of the prosecution case and they have no bearing on the issue involved in the case. From the evidence, it therefore follows that the accused was in the habit of coming home drunk and assaulting the victim. Crl. Appeal No.1041/2005 14 23. What now remains to be considered is what are the offences committed by the accused. On the basis of the materials available and the evidence adduced by the prosecution, there can be no manner of doubt that the offence under Section 498A IPC is squarely attracted to the facts of the case. It is not necessary that the ill-treatment should be by way of demand for dowry. If one is to believe the evidence of PW5, that is sufficient to show that the accused used to physically assault the victim on almost everyday and make the life hell for her. The court below was therefore perfectly justified in coming to the conclusion that the offence under Section 498A IPC is made out.
24. However, the offence under Section 306 IPC may stand on a different footing. Merely because the offence under Section 498A IPC is made out, that does not lead to the conclusion that offence under Section 306 IPC is attracted. Section 306 IPC contemplates a situation whereby there is an instigation on the part of the accused in driving the victim to commit suicide. That pre supposes that the accused knew what was coming along and then he aided or instigated for doing that particular thing. It Crl. Appeal No.1041/2005 15 must be remembered that, going by Section 107 IPC, abetment means instigation to do a thing.
25. In the case on hand, even assuming that on the date of the incident, the accused ill-treated the victim, that is hardly sufficient to lead to the conclusion that he had instigated her to commit suicide. Here, one of the prosecution witnesses, though turned hostile to the prosecution, says that the accused was seen holding the victim and pleading to her why she had taken this extreme step. In the light of the well settled principles which indicate the necessary ingredients to be established for attracting the offence under Section 306 IPC, it is to be said that the present case does not meet the standards. Though it may look cruel, that by itself is not a ground to come to the conclusion that the offence under Section 306 IPC is attracted. That needs certain specific grounds and ingredients to be established by the prosecution. The mere commission of suicide by itself is not a ground to attract the offence under Section 306 IPC.
26. What now remains to be considered is the sentence awarded for the offence under Section 498A IPC. The court Crl. Appeal No.1041/2005 16 below has awarded a sentence of two years rigorous imprisonment and a fine of Rs.5,000/- with default clause of simple imprisonment for three months for the offence under Section 498A IPC. Considering the nature of the act committed by the accused and the short span of marital life, it seems to be just and reasonable. No grounds are made out to interfere with the conviction and sentence passed by the court below for the offence under Section 498A IPC. In the result, while confirming the conviction and sentence for the offence under Section 498A IPC, the conviction and sentence passed for the offence under Section 306 IPC is set aside and it is held that the accused is not guilty of the offence under Section 306 IPC. He stands acquitted of the said charge. If he has paid the fine amount in respect of the offence under Section 306 IPC, the same shall be refunded to him. Set off as per law is allowed. This Crl. Appeal is partly allowed. Sd/- P.BHAVADASAN JUDGE smp