Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942 CRL.A.No.204 OF 2005 AGAINST THE JUDGMENT IN CRL.APPEAL NO.319/2003 DATED 19-11-2003 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-II),ERNAKULAM APPELLANT/RESPONDENT/COMPLAINANT: STATE OF KERALA BY ASSISTANT COMMISSIONER OF POLICE, MATTANCHERRY, THROUGH PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. BY SRI.K.B.UDAYAKUMAR, SR. PUBLIC PROSECUTOR RESPONDENTS/APPELLANTS/ACCUSED: 1 ANTONY XAVIOUR S/O.XAVIOUR,VELIYATH HOUSE, HOUSE NO.CC.XV/2134, JANATHA ROAD, NAZERETH DESOM, RAMESWARAM VILLAGE,, ERNAKULAM DISTRICT. 2 ROSLY @ RACHAL, W/O. HILL ROY EDAMANA HOUSE, H.NO.18/247,, WEST OF VALAPPU BUS STOP, VALAPPU DESOM,, ELAMKUNNAPUZHA VILLAGE, VYPPIN. R1 BY ADV. SRI.ANIL K.MOHAMMED R1 BY ADV. SRI.R.ANIL R1 BY ADV. SRI.DELVIN JACOB MATHEWS R1 BY ADV. SRI.GEORGE PHILIP R1 BY ADV. SRI.B.RAMAN PILLAI R1 BY ADV. SRI.RAJU RADHAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.12.2020 ALONG WITH Crl.Rev.Pet.1289/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.R.P.NO.1289/2004 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942 Crl.Rev.Pet.No.1289 OF 2004 AGAINST THE JUDGMENT IN CRL.APEPAL NO. 319/2003 DATED 19-11-2003 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-II),ERNAKULAM REVISION PETITIONER: A.P.EANASY, S/O.FRANCIS, ODATTAPARAMBU, KARIPPALAM, KOCHI-2,, (NOW RESIDING AT NADUVATHMURI ROAD,, SOUTH MOOLAMKUZHI, MUNDAMVELI P.O.,, KOCHI-682 507.
BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.P.MAYA RESPONDENTS/APPELLANTS & RESPONDENT/ACCUSED & COMPLAINANT: 1 ANTONY XAVIER, VELIYATH HOUSE,JANATHA ROAD, NAZARETH, RAMESWARAM VILLAGE,, KOCHI. 2 ROSLY @ RACHEL VELIYATH HOUSE,JANATHA ROAD, NAZARETH, RAMESWARAM VILLAGE, KOCHI. 3 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.ANIL K.MOHAMMED R1 BY ADV. SRI.R.ANIL R1 BY ADV. SRI.DELVIN JACOB MATHEWS R1 BY ADV. SRI.GEORGE PHILIP R1 BY ADV. SRI.B.RAMAN PILLAI R1 BY ADV. SRI.RAJU RADHAKRISHNAN R1 BY ADV. SRI.R.D.SHENOY SR. R1 BY ADV. SRI.S.VINOD BHAT R3 BY SRI.K.B.UDAYAKUMAR, SR.PP THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01.12.2020 ALONG WITH CRL.A.204/2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO.1289/2004 3
JUDGMENT
[ CRL.A.204/2005, Crl.Rev.Pet.1289/2004 ] Dated this the 1st day of December 2020 ... This Revision petition and Crl. Appeal are connected and therefore, I am disposing these two cases by a common judgment. The revision petitioner in Crl.R.P.1289/2004 is the prosecution witness No.1 in S.C. No.303/2001 on the file of the Principal Assistant Sessions Judge, Kochi. The revision is filed challenging the judgment dated 19.11.2003 in Crl.Appeal No.319/2003 on the file of the Additional Sessions Judge, (Adhoc-II), Ernakulam. The State also challenge the same judgment by filing Crl.Appeal No.204/2005. Therefore, I am disposing these two cases by a common judgment. CRL.R.P.NO.1289/2004 4 (hereinafter the parties are mentioned in accordance to their rank before the trial court).
2. The above case is chargesheeted by the Assistant Commissioner of Police, Mattancheryy alleging offences punishable under Sections 498A and 306 r/w Section 34 of the IPC against the two accused.
3. The prosecution case in brief is that on
18.2.1996, the first accused married Jency, daughter of PW1 at Jeevamatha Church, Mattancherry. They were residing at the house of the first accused. It is alleged after one year of the marriage, the first accused started to treat Jency with matrimonial cruelty by demanding more money and also by physically torturing her and subjecting her to mental torture as well. Consequent to the mental and physical torture, Jency had to be hospitalised and had also on a previous occasion attempted to put an end to her CRL.R.P.NO.1289/2004 5 life by committing suicide. It is alleged by the prosecution that Jency committed suicide on account of the abetment from the accused and the suicide was on 26.3.2000 from a room inside the house of the first accused. Hence it is alleged that the accused committed the offence under Section 498A and 306 r/w Section 34 of the IPC.
4. To substantiate the case, the prosecution
examined PW1 to PW17. Exts.P1 to P11 were also marked. Ext.D1 to D8 are the defence exhibits. Two witnesses were examined on the defence as DW1 and DW2. M.O.1 series were marked as material object. Ext.C1 is also marked as court exhibit.
5. After going through the evidence and
documents, the trial court found that the accused Nos. 1 and 2 is guilty for the offence under Sections 498A and 306 IPC r/w Section 34 IPC. The accused are sentenced to undergo rigorous imprisonment for two years each and to pay a CRL.R.P.NO.1289/2004 6 fine of Rs.10,000/- each and in default of payment of fine, accused are directed to undergo simple imprisonment for six months each for the offence under Section 498A r/w. Section 34 IPC. The accused were also directed to undergo rigorous imprisonment for four years and to pay a fine of Rs.50,000/- each and in default of payment of fine, they are directed to undergo rigorous imprisonment for one year each for the offence punishable under Section 306 r/w. Section 34 IPC.
6. Aggrieved by the above conviction and
sentence, the accused filed an appeal before the Sessions Court, Ernakulam. The appeal was considered by the Additional Sessions Judge (Adhoc-II), Ernakulam in Crl.Appeal No.3191 of 2003.
7. After going through the entire oral
CRL.R.P.NO.1289/2004 7 and documentary evidence, the appellate court concluded that, the accused are not guilty under Sections 498A and 306 r/w. Section 34 IPC. The appellate court concluded that even if the entire prosecution evidence is accepted in toto, the offence under Sections 498A and 306 IPC is not made out. Hence, the accused was acquitted.
8. Aggrieved by the above acquittal order, the prosecution witness No.1 filed the revision and the State filed the appeal.
9. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. I also heard the learned counsel for the 1st and 2nd accused also.
10. The prosecution case is that there is
mental and physical cruelty from the side of the accused and because of the same, the CRL.R.P.NO.1289/2004 8 deceased Jency committed the suicide. I do not want to repeat the entire oral evidence
adduced by the witnesses in this judgment
because the evidence adduced by the prosecution is narrated in detail by the trial court and the appellate court. The appellate court after perusing the entire oral and documentary evidence came to a definite
conclusion that the 2nd accused is not guilty
of the offence under Section 498A and 306 IPC in the facts and circumstances of this case. The appellate court found that the 2nd accused was implicated at a later stage after a period of five months from the date on which the deceased committed suicide. The appellate court also found that the evidence adduced by the prosecution witnesses against the 2nd accused are all improvements and therefore the CRL.R.P.NO.1289/2004 9 evidence adduced by the prosecution cannot be believed to convict the 2nd accused and the trial court acquitted the 2nd accused after discussing the evidence against her in detail. The relevant paragraph by which the appellate court considered the evidence against the 2nd accused is in paragraph 9 of the impugned
judgment of the appellate court which is
extracted hereunder:
“9. As I have noted earlier, the second appellant was implicated by the investigating agency on the basis of a satisfaction that she was also harassing the deceased Jency and she was always bent upon in giving a helping hand to the first appellant in the matter of harassment. It is pertinent to note here that the story projected regarding the involvement of the second appellant does not find a place in the previous statements rendered by any of the witnesses viz.,PWs. 1 to 7 and 10. PW.1 is the father of the deceased and PW.3 is her mother. PW.2 is the son-in-law of PW.1 and who is the husband of the
CRL.R.P.NO.1289/2004 10
elder sister of the deceased. PW.4 is the sister of the deceased while PW.5 is the sister of PW.2. PW.6 is a neighbour of the first appellant and PW.7 is the maid servant attached to the second appellant’s house at Vypin. PW.10 is a resident of Vypin. A perusal of the judgment of the trial court would show that a finding was made in such a way that immediate provocation had taken place in the house of the second appellant on 24.3.2000 when the first appellant and the deceased Jency had gone over there. But it can be seen that no direct evidence is made available to render such a finding and all that can be made out is that these matters were said to have disclosed by deceased Jency while PW.1 had met her in her matrimonial home belonging to the first appellant on 25.3.2000. That is the reason why PW1 has caused to file a complaint Ext.C1 before the Thoppumpady Police Station 26.3.2000. The main allegation worded in Ext.C1 is attributed against the first appellant regarding his drunken nature and the physical harassment caused by him on the deceased. But significantly enough, no mention has been made in Ext.C1 regarding the torture, either physical or mental attributed by the second appellant or her
CRL.R.P.NO.1289/2004 11
involvement in the matter. It must be noted here that a reference is made in Ext.C1 regarding an incident on 24.3.2000. That had happened in the second appellant’s house but even then, Ext. C1 speaks nothing relating to the helping hand if any rendered by the second appellant at her residence in Vypin. I have already indicated that PW.14 has questioned PWs.1 and 2 at the time of preparation of Ext. P3 Inquest Report. At that time also PWs.1 and 2 have ruled out the involvement of the second appellant. PW.1 was re-summoned after the production of Ext.C1 before the trial court and he rendered evidence to the effect that he had been noting the complaints given by the deceased in a calendar and he made notes from the entries in the calendar and he had after a thorough discussion with PW.2 and PW.3 had filed Ext.C1 complaint. If there was any kind of issue relating to the unhappy blend of the deceased involving the second appellant, PW.1 or PW.2 as the case may, would have spelt it out at the earliest opportunity. The only case made out against the second appellant by the investigating agency was on the basis of Exts.P9 and P10 referred earlier. PW.2 has spoken in his evidence that the
CRL.R.P.NO.1289/2004 12
second appellant has beaten the deceased and the information if any in this matter is seen to have been gathered from the deceased. An attempt was also made in the evidence stage that the second appellant had partaken along with the first appellant to inflict physical harassment on the deceased. But a perusal of the evidence of the interested testimony rendered by PWs.1 to 5, which are inconsistent and contradictory, I am not satisfied on the basis of the circumstances referred above that they are speaking the truth. The trial court had observed that the evidence of PWs.1 to 5 read with that of PWs.7 and 10 revealed that on account of cruelty which Jency had suffered at the hands of both the accused, at the house of A2 at Vypin, she had run away from that house at about 9 P.M. and had to seek shelter in the house of stranger for that night. I am afraid that the observation made by the trial court relating to the evidence of PW.7 is patently wrong. PW.7 has not spoken anything in support of the prosecution version of the story. On the other hand, she has stated to the effect that the first appellant and his wife used to stay in the second appellant’s house at Vypin
CRL.R.P.NO.1289/2004 13
Kara and they were maintaining a cordial relationship. PW.10 is Benny, a native of Vypin who has spoken to the effect that he had occasion to hear loud cries from the residential house of the second appellant. Even then, the interference or involvement if any, of the second appellant is not substantiated in any manner by the prosecution. On a careful analysis of the evidence on record, I am constrained to take a view that the prosecution has not established or proved that the second appellant was instrumental in causing harassment, either physical or mental to deceased Jency at any point of time before her death. This being the position, the finding of the trial court that the second appellant has committed the offence is an erroneous finding and it cannot be sustained in law.”
11. I see no reason to interfere with the
above finding of fact. The cases before me is a revision against acquittal and an appeal against acquittal. It is now settled by several decisions of this Court and Apex Court that presumption of innocence will strengthen CRL.R.P.NO.1289/2004 14 once an accused is acquitted by a court of law. In the light of the above findings by the appellate court about the evidence adduced by the prosecution against the 2nd accused and the conclusion arrived at by the appellate court, I see no reason to interfere with the same. The appellate court considered each and every evidence adduced by the prosecution against the 2nd accused and thereafter concluded that the 2nd accused is not guilty.
Therefore, I confirm the acquittal order
passed by the appellate court against the 2nd accused.
12. Then the question to be decided is
about the conviction and sentence imposed against the 1st accused. The appellate court considered the evidence adduced by the prosecution against the 1st accused also in CRL.R.P.NO.1289/2004 15 detail in paragraph 12 onwards in the impugned
judgment which is extracted hereunder:
“12. The standard of proof of cruelty is higher in criminal law and the intention or mensrea is an essential element to prove cruelty. It is also a principle of law that cruelty is not to be proved by preponderance of probability in criminal trials but the conduct of cruelty has to be proved beyond all reasonable doubt. As far as the present case is concerned, I can only deduct from the evidence on record that there was some problem catapulted in between the spouses arising from some differences of opinion and I must once again say that there was no ill-treatment on the side of the first appellant in this case as a sequel to dowry demand and no evidence has been made available to suggest a circumstance that beatings of any kind was done to Jency immediately one day prior to her suicide. This being the position, the finding of the trial court regarding physical harassment is not based on any reliable evidence and the lower court has failed to appreciate the mental nature of the deceased and the treatment undergone by her and the impeccable defence evidence adduced in this line.
13. Undoubtedly, for the invocation of section 498-A, something far more serious than CRL.R.P.NO.1289/2004 16
petty matrimonial disputes or riches between husband and wife would be necessary, and it is for this reason that the legislature has provided that the cruelty must be of such gravity as is likely to drive the woman to an extremity of a suicide, or that it should be of such intensity as to result in grave injury to life, limb or health. Cruelty for the purpose of Section 498-A of the I.P.C. means any willful conduct which is of such a nature as is likely to drive a woman to commit suicide, or to cause grave injury or danger to life, limb or health of the woman or 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 of any property or valuable security or is on account of failure by her or any person related to her to meet such a demand. Mention must be made here regarding the presumption u/s.113(A) of the Evidence Act and when the presumption can be drawn. When once the offence u/s.498-A of the Indian Penal Code is proves, while trying the case shall draw a presumption having regard to all the relevant facts given in the section and the other circumstances of the case, that the suicide was abetted by the accused found guilty u/s.498-A of the Indian Penal Code. So before drawing the presumption, the court shall take into consideration all the other circumstances
CRL.R.P.NO.1289/2004 17
of the case. Where the very offence u/s. 498-A is not proved, there is no need to go into other circumstances of the case for the purpose of involving the accused u/s. 306 of the Indian Penal Code. Even though I have found from the evidence on record that physical harassment or any kind of other harassment made by the first appellant is not established, certain other circumstances highlighted by the appellants through defence evidence and which has lost sight of by the lower court is worthy of consideration at this stage.
14. DW.1 is Dr. Anandam Radhakrishnan,
Casualty Medical Officer attached to Medical Trust Hospital, Ernakulam through whom Exts.D6 and D7 medical charts of deceased Jency kept in the Medical Trust Hospital, Ernakulam were proved. PW1 in his attempt to attribute the indifferent attitude on the side of the appellant spoke to the effect that he after consuming liquor took Jency in his scooter from his house on 20.9.96 and she met with an accident. According to PW.1, the said incident had happened in his house in connection with the baptism ceremony of his elder daughter’s child and the first appellant has left with the deceased Jency in the scooter when she did not yield to his request for serving food in a separate room. Ext. D6 would show that Jency was admitted in the Medical Trust Hospital,
CRL.R.P.NO.1289/2004 18
Ernakulam with head injury on 22.9.96 while she was pregnant at that time. She was at first treated in the Neurosurgery Department where C.T. Scan was done at the time of admission. Generalised brain oedema was noted and she was treated in the hospital as an impatient and discharged after a period of 10 days. Ext.D6 chart would further show that Jency was treated in the Neuro Surgery, E.N.T and Psychiatric department of the hospital at various period subsequently. During the follow up check up made on Jency, she had reported complaints which are intervened with medical distraction. Ext.D6 would show that on 19.10.96 she complained of head ache-off and on ‘nausea’ and ‘canam’. DW.1 has stated that this aspect may be a hallucination of hearing songs. On 6.11.96, Jency had come up with attacks of weight head and loss of consciousness was recorded at that time. It must be noted here that Phenobarbitone drug was advised and she was taking the same during the relevant period and she was advised to discontinue the same. Ext. D6 also would show that Jency had come again on 12.2.97 with a complaint of ‘feeling of falling down’ after her delivery in December, 1996. Ext.D7 chart would show that Jency was again admitted to the Medical Trust Hospital on 14.5.97 as a result of intake of phenoberbitons over dosage and discharged on
CRL.R.P.NO.1289/2004 19
17.5.97. This time she was treated in the nephrology department. Probably due to renal complications and the nephorologist had referred Jency to the psychiatric department for the valuable advice of Dr.C.J. John, the psychiatrist. The evidence would show that jency was brought unconscious on 14.5.97 as a result of over dosage of phenobarbitone at the residence of the first appellant. It is also indicated in Ext.P7 that she was regularly taking phenobarbitone as prescribed by the neuro surgeon of the Medical Trust Hospital. The evidence on the side of the prosecution would also highlight that Jency had attempted to commit suicide earlier by taking phenobarbitone. It is also evidenced that Jency was seen by a psychiatrist on 21.5.97 but he had recorded some code words in case sheet which could not be deciphered by DW.1. On 6.9.97 Jency was again seen by Neuro Surgeon who has noted ‘merry Goround’ and things ‘moving around’. The problem with Jency at that time was ‘tintin’, ‘nausea’, ‘dryness’, ‘sweating’ etc.. similarly on 14.1.98 she felt like ‘falling’ increased sleco,’Canam heard’ ‘palapitation’ and ‘Sweating’. DW.1 has rendered evidence to the effect that Jency had delusions which are called as false beliefs and such patients have a suicidal tendency on account of agitated phases in life. The
CRL.R.P.NO.1289/2004 20
evidence on record would show that the deceased had mental problem and behavioral disturbances and she was continuously taking medicines as a result of her malady. PW.1 has all along admitted in his evidence that the first appellant was instrumental in treating her for her infirmity. The problem with Jency had another dimension also as it has come out in the evidence that the baby born to her was also struck up with mental infirmity and was suffering from a disease called as ‘autism’ and he was also undergoing treatment. The lower court has not given due weight to the mental condition of deceased Jency borne out through Exts. D6 and D7 and the testimony rendered by DW.1. It is of paramount importance to note at this juncture that Jency was treated by PW.8 Dr. Sasaka Prabhu on 25.3.2000 and kept for observation for three hours and she was sent back home. I have already indicated that the deceased was taken by the first appellant and the complaint of the deceased at that time was ‘giddiness and fall’ (EXT.P1), a condition similar to the one revealed from Ext. D6 case sheet. It is also important to note here that the deceased has committed suicide within 24 hours of last treatment undergone by her. Ext.D1 series are certain photographs, three in number produced with a view to refute the testimony rendered by PW.1 and other witnesses
CRL.R.P.NO.1289/2004 21
regarding strained relationship. Ext.D2 series are two letters sent by the brother of deceased Jency from America to the first appellant during 1997 wherein no signs of the allegations putforward by the prosecution witnesses surfaced even in the minutest manner. On the contrary, Ext. D2 series would only project a good relationship existing in between the first appellant and his brother in law. Exts. D3 and D4 are two O.P. tickets in the name of Jency and her son Clint Antony while Ext. D5 is a prescription given by Dr. Subba Rao of the Medical Trust Hospital, in favour of Jency on 14.1.98. I make a passing reference on these also as Exts. D6 and D7 would speak in an emphatic manner regarding the mental condition of deceased Jency. When these circumstances borne out in evidence are given due weight, the prosecution evidence cannot be used to pinpoint the guilt on the first appellant. I am constrained to take a view from the circumstances and evidence in this case that the prosecution has failed to prove its case against the appellants. It therefore follows that the appellants cannot be made liable for the offences alleged against them. The order of conviction and sentence passed by the principal Assistant Sessions Judge, Kochi is liable to be interfered under these circumstances and I do so.”
CRL.R.P.NO.1289/2004 22
13. As I stated earlier, I am considering
an appeal against acquittal and a revision filed by the victim against acquittal. In Chandrappa and Others v. State of Karnataka [(2007) 4 SCC 415], the Apex Court considered the jurisdiction of this Court while considering an appeal against acquittal after relying certain earlier judgments. The relevant paragraphs of the said judgment is extracted hereunder:
“40. In Ramanand Yadav v. Prabhu Nath Jha this Court observed: (SCC pp.614-15, para 21) “21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence
CRL.R.P.NO.1289/2004 23
adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.
41. Recently, in Kallu v. State of M.P.
this Court stated : (SCC pp.317-18, para 8) “8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one
significant difference is that an order
of acquittal will not be interfered with, by an appellate court, where the
judgment of the trial court is based on
CRL.R.P.NO.1289/2004 24
evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court” (emphasis supplied).”
14. Bearing in mind the above principle
laid down by the Apex Court in the above judgments, I see no reason to interfere with the acquittal order passed against the 1st accused also. The appellate court scanned the evidence adduced by the prosecution in detail. As I said earlier, the evidence adduced by the prosecution against the 1st accused is narrated in detail by the appellate court and thereafter concluded that the offence under CRL.R.P.NO.1289/2004 25 Sections 498A and 306 is not made out. In such circumstances while sitting in an appeal against acquittal and in a revision against acquittal, I see no reason to interfere with the above finding of fact by the appellate court. Therefore, this criminal revision and criminal appeal are dismissed confirming the
judgment dated 19.11.2003 in Crl.Appeal No.
319 of 2003 on the file of the court of the Additional Sessions Judge (Adhoc-II), Ernakulam. Sd/- P.V.KUNHIKRISHNAN pkk JUDGE