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
2

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 498A, 306 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 498A, 306 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 313 Cr.P.C, all the accused denied the incriminating

circumstances and projected a defence that deceased

Crl.A No.541 of 2009
3

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
4

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 2009
5

much 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
6

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 2009
7

or 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 2009
8

may 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
9

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 304B by applying the presumption under

Crl.A No.541 of 2009
10

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
11

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
12

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
13

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
14

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
15

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
16

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 306 I.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 2009
17

will 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
18

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_Aa”

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
19

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
20

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
21

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 498A, 306 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 2009
22

will stand acquitted. While confirming the conviction as

against the 1st accused under Section 498A I.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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