—
Crl. Appeal No. 3 of 2007 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
CRL.A NO. 3 OF 2007
JUDGMENT SC 581/2002 OF ADDITIONAL DISTRICT COURT (ADHOC)-II,
THIRUVANANTHAPURAM
CP 13/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,ATTINGAL
APPELLANT/ACCUSED NO.1:
SREEKUMAR,S/O. CHELLAPPAN CHETTIAR,
THEKURATHUVILA VEEDU, NEAR MAVENTEMOODU,, AZOOR DESOM,
AZOOR VILLAGE.
BY ADVS.
SRI.K.P.MAJEED
SMT.M.ISHA
SRI.T.H.ABDUL AZEEZ
SRI.P.ANOOP MULAVANA
SRI.M.CHANDRAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
BY ADV. SRI. PRASANTH M.P., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2023, THE COURT ON
04.01.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 3 of 2007 :2:
‘CR’
JOHNSON JOHN, J.
———————————————————
Crl. Appeal No. 3 of 2007
——————————————————–
Dated this the 4th day of January, 2024.
JUDGMENT
The appellant, who is the first accused in S.C. No. 209 of 2001 of
the Court of Additional District and Sessions Judge, Fast Track (Adhoc-
II), Thiruvananthapuram, filed this appeal challenging the conviction and
sentence imposed on him for the offence punishable under Section 498A
IPC as per the judgment dated 16.11.2006.
2. The appellant/first accused was prosecuted along with his
mother, the second accused, for the offence punishable under Section
304B r/w Section 34 IPC on the allegation that after the marriage of the
first accused with the daughter of PW8 on 21.05.1995 and while the
daughter of PW8 was residing in the matrimonial house along with
accused persons, they subjected her to physical and mental cruelty
demanding more dowry and unable to bear the cruelty, the daughter of
PW8 poured kerosene over her body and set fire to herself at 4.15 p.m.
on 05.12.1998 and thereafter, while undergoing treatment in Medical
College Hospital, Thiruvananthapuram, she succumbed to her injuries at
Crl. Appeal No. 3 of 2007 :3:
6.50 a.m. on 8.12.1998 and the accused are thereby alleged to have
committed the offence as aforesaid
3. Exhibit P1(a) FIR was registered under Section 174 Cr.P.C on
08.12.1998 on the basis of Exhibit P1 First Information Statement of
PW1, who is the brother of the father of the deceased. After completing
the investigation, final report was filed by PW18, Deputy Superintendent
of Police, Attingal, and after committal, the case was taken on file as
S.C. No. 209 of 2001.
4. The trial of the case was conducted before the Court of
Additional District and Sessions Judge, Fast Track (Adhoc-II),
Thiruvananthapuram and from the side of the prosecution PWs 1 to 18
were examined and Exhibits P1 to P9 and MOs 1 to 3 were marked. From
the side of the accused, DW1 was examined and Exhibits D1 and D2
were marked.
5. After considering the oral and documentary evidence on record
and after hearing both sides, the learned Additional Sessions Judge, by
the impugned judgment dated 16.11.2006, convicted the first accused
for the offence under Section 498A IPC and sentenced him to undergo
rigorous imprisonment for three years and to pay fine of Rs.25,000/-
and in default of payment of fine, to undergo simple imprisonment for
six months.
Crl. Appeal No. 3 of 2007 :4:
6. Heard Sri. K. P. Majeed appearing for the appellant and Sri.
Prasanth M.P., the learned Public Prosecutor.
7. The point that requires consideration is whether the conviction
and sentence imposed on the appellant for the offence under Section
498A IPC is legally sustainable.
8. The learned counsel for the appellant argued that the evidence
in this case clearly proves that it is an accidental death which occurred
while the deceased was in the kitchen and when her sari caught fire from
the kerosene stove, while she was boiling milk for her child and that
there is no evidence in this case to indicate the presence of kerosene in
her body and the court below even after arriving at a finding that there
is no evidence of cruelty against the deceased from the side of accused
persons soon before her death so as to attract the offence under Section
304B IPC, recorded a finding that the appellant/first accused committed
the offence under Section 498A IPC.
9. It is also argued that the said finding of the court below was
without framing a charge for the offence under Section 498A IPC and
without satisfactory evidence to arrive at a finding that the
appellant/first accused subjected the deceased to cruelty as defined in
the explanation to Section 498A IPC. But, the learned Public Prosecutor
argued that the evidence of PWs 1, 2 and 8 to 12 will clearly show that
Crl. Appeal No. 3 of 2007 :5:
the appellant/first accused used to manhandle the deceased demanding
money for the construction of the house, and since the prosecution has
proved that the appellant/first accused subjected the deceased to mental
and physical cruelty, there is nothing wrong in convicting him for the
offence under Section 498A IPC, even though he was charged and
acquitted under Section 304B IPC, as cruelty is a common essential to
both the Sections and the difference is that under Section 304B of IPC,
cruelty or harassment soon before death is to be proved and the
occurrence must be within 7 years of the marriage and no such
ingredients are prescribed in Section 498A IPC.
10. The learned counsel for the appellant argued that the
deceased sustained the burn injuries at 4.15 p.m., on 05.12.1998 and
she succumbed to her injuries only at 6.50 a.m. on 08.12.1998 and it is
not in dispute that the victim was fully conscious and able to talk to
others during this period and the prosecution has suppressed the
treatment records of the deceased and has also not examined the doctor
who treated the deceased at Medical College Hospital,
Thiruvananthapuram and there is nothing in evidence to show that the
deceased made any allegations against the accused persons in
connection with the occurrence, and if in fact she was subjected to
cruelty as alleged by the prosecution, she could have mentioned the said
fact to the doctor who treated her or to her relatives and it is a normal
Crl. Appeal No. 3 of 2007 :6:
procedure on the part of the doctor to ascertain the cause of injury from
the patient and the only inference possible from the non production of
the said treatment records is that the prosecution has deliberately
suppressed material evidence.
11. PW1, who is the brother of the father of the deceased,
deposed that the victim died due to burn injuries; but it is not known to
him whether the victim set fire herself. PW1 stated that the accused
used to manhandle the victim by demanding money and the deceased
Beena has told him the same. The evidence of PW1 shows that when he
visited Beena at Medical College Hospital, Thiruvananthapuram, he
asked her about the incident; but, the deceased told him that she will
tell the same later. In cross examination, PW1 admitted that at the time
of giving statement to the police, he was not aware about the cause of
death and that he came to know about the cause of death only later. In
cross examination, PW1 categorically admitted that he told the police
that it is not known to him why Beena committed this act. In another
part of the cross examination, PW1 stated that he sustained an accident
after the incident in this case and therefore, he is suffering from loss of
memory.
12. PW2, stated that the deceased is his distant relative and
about three months before the occurrence, she told him that her
Crl. Appeal No. 3 of 2007 :7:
husband is demanding money for the construction of the house and she
could not collect money from her house and therefore, requested him to
discuss the matter with her husband Sreekumar. In chief examination
itself, PW2 stated that he had not given much importance to the same at
that time and he was under the impression that it was only a small
quarrel between the husband and the wife and he could not meet the
husband of the deceased .
13. PW3 is a witness to Exhibit P2 inquest report. PW4 is the
Village Officer, who prepared Exhibit P3 scene plan. PW5 is the Sub
Divisional Magistrate who prepared Exhibit P2 inquest report.
14. It is not in dispute that the marriage between the first
accused and the deceased was on 21.05.1995, and PW6, Devaswom
Manager, identified his signature in Exhibit P4 marriage certificate.
15. PW7 was the Sub Inspector of Chirayinkeezhu Police Station
who recorded Exhibit P1 First Information Statement on 08.12.1998 and
registered Exhibit P1(a) FIR. His evidence further shows that he
recovered MO2 stove and MO3 remanence of the sari and skirt worn by
the deceased at the time of occurrence as per Exhibit P5 scene mahazar.
According to PW7, he produced MOs 2 and 3 before the court as per
Exhibit P6 property list. The evidence of PW7 in cross examination shows
that at the time when he prepared Exhibit P5 scene mahazar, he was not
Crl. Appeal No. 3 of 2007 :8:
sure whether the deceased committed suicide. PW7 further admitted
that it was the first accused who pointed out the place of occurrence.
The evidence of PW7 further shows that the appellant herein was not
arrayed as an accused at the time of preparing Exhibit P5 scene mahazar
and therefore, PW7 has not arrested the accused.
16. It is true that PW8, the mother of the deceased, has deposed
that the first accused used to beat and hit her daughter by demanding
money and when her daughter came there for casting her vote in
Parliament election, she told her that the accused inflicted burn injuries
on her face with a cigarette and he pressed on her neck and according to
PW8, she used to give money to her daughter; but the evidence of PW8
in cross examination would show that there are other issues between the
families.
17. According to PW8, when the milk boiling ceremony of the new
house of the accused was conducted, her daughter was not allowed to
enter the new house with lighted lamp and when she was about to
question the accused about the same, her daughter prevented her and
thereafter, she returned without eating food from there. PW8, would say
that when she asked her daughter about the cause of the incident while
her daughter was undergoing treatment in the hospital, her daughter
Crl. Appeal No. 3 of 2007 :9:
after looking towards her husband and relatives, told her that she will
tell the same later.
18. PW8 also deposed before the court that the accused and his
mother told her daughter that they will not allow her daughter to live in
the new house even for 10 days. But it is pertinent to note that PW8 has
not mentioned when her daughter told the same to her. It is also
pertinent to note that PW8 has added that the neighbours also told her
about the same, when she reached there for the milk boiling ceremony.
19. The evidence of PW8 in cross examination shows that she was
questioned by the police on 9th; but she admitted that she has not told
the police about giving money to her daughter and she would say that
the accused started quarreling with her daughter after the
commencement of the construction of the house. PW8 categorically
admitted in cross examination that her daughter was fully conscious till
her death and she has not told the police that her daughter signalled
about the presence of the accused and his relatives when she asked
about the cause of the incident. PW8 further admitted that they were not
in good terms as it was the mother of the accused who entered the new
house with lighted lamp on the occasion of the milk boiling ceremony.
When the learned counsel for the defence suggested that the accused
attempted to rescue his wife by covering her with his lungi, PW8 only
Crl. Appeal No. 3 of 2007 : 10 :
stated that she did not see the same and to the suggestion that the
accused also sustained burn injuries in the incident, the witness
answered that she has not witnessed the same.
20. PW9 is a neighbour of PW8 and according to her, one month
before the incident, when she saw the deceased, she told her that her
husband used to harass her by demanding money for the construction of
the house and that her husband will beat her, if she fails to bring the
money. In cross examination, PW9 admitted that the deceased is the
daughter of the younger brother of her husband. PW9 cannot say the
date or time when the deceased told her about the alleged harassment
by the accused.
21. PW9 further admitted that she is not aware as to how the
deceased sustained burn injuries. According to PW9, even though she
asked the victim regarding the cause, the victim only cried and she did
not respond to her question. PW10 deposed that she is residing near to
the family house of the deceased and two weeks prior to the occurrence,
when she met her in the bus stop, the deceased told her that her
husband used to harass her for money in connection with the
construction of the house and that she came there to collect money from
her mother.
Crl. Appeal No. 3 of 2007 : 11 :
22. The evidence of PW10 in cross examination shows that she
cannot remember whether she has given such a statement to the police
and further her evidence only shows that the deceased has only shared
her apprehension that the accused will assault her, if in case she fails to
produce money for the construction of the house.
23. PW11 turned hostile to the prosecution and her evidence in
chief examination shows that she is not aware about the actual cause of
the death. But, in cross examination, she would say that she heard
people saying while taking the victim to the hospital that her sari caught
fire while boiling milk for the child. PW12 deposed that the deceased is
the daughter of the younger sister of her mother and that the husband
of the deceased used to beat the deceased demanding money.
24. But, the evidence of PW12 in cross examination would show
that it was the mother of the deceased who told her about the
harassment. In cross examination, PW12 denied that she told the police
that it was Biju, the brother of the deceased who informed her through
phone about the death of the deceased and the relevant portion of her
statement to the police is marked as Exhibit D1. PW12 also denied that
she told the police that on 05.12.1998, at 5.30 p.m., she was informed
through phone that her sister Beena is undergoing treatment in Medical
Crl. Appeal No. 3 of 2007 : 12 :
College Hospital, Thiruvananthapuram for burn injuries and the said
portion in her statement to the police is marked as Exhibit D2.
25. In cross examination, PW12 also categorically admitted that
during night, there is no entry for men to the female ward and during
night, her mother and the mother of Beena were there in the hospital. In
another part of the cross examination, she stated that the mother of
Beena told her that the husband of Beena is subjecting Beena to cruelty
and that the mother of Beena used to tell her the same whenever they
meet.
26. PW13 is a neighbour who reached the place of occurrence on
hearing the cries and according to him, Beena was standing there with
burn injuries and they covered her with a lungi and took her to the
hospital . He denied that he told the police that the accused used to
manhandle his wife and he was declared hostile to the prosecution.
However, he stated that there used to be small quarrels between the
accused and his wife and for the last 20 years, he is their neighbour.
27. PW14 is the doctor who conducted the postmortem and according
to PW14, the death was due to burns involving 92% of body surface and
the witness cannot remember whether he was questioned by the
Investigating Officer. In cross examination, PW14 admitted that the
possibility of the clothes catching fire cannot be ruled out and according
Crl. Appeal No. 3 of 2007 : 13 :
to him, it is not possible to differentiate the burn sustained accidentally
by clothe catching fire from the burns that have been facilitated by
inflammable substances, especially when there is a lapse of time. He
further admitted that if there was more than one layer of cloth, that
itself can accelerate severity of burn. The evidence of PW14 clearly
shows that he conducted the postmortem examination 3 days after the
occurrence and in that circumstances, it was not possible to find out the
presence of any inflammable substance in the body.
28. PW18 is the Dy.S.P who completed the investigation and filed
the final report. In cross examination, he would say that he questioned
the doctor who treated the deceased and also perused the case sheet.
But, according to him, he has not recorded the statement of the doctor.
PW18 admitted in cross examination that it was revealed in his
investigation that the deceased was conscious till her death. PW18
deposed that the deceased has told the doctor about the cause of injury.
But, PW18 would say that the doctor has not prepared any wound
certificate.
29. In another part of the cross examination, when it is suggested
to PW18 that the deceased has told the doctor that her dress
accidentally caught fire and it was in that circumstance the doctor has
not given any intimation to the police, the witness answered that it is not
Crl. Appeal No. 3 of 2007 : 14 :
known to him whether the deceased has mentioned anything to the
doctor. However, PW18 denied the suggestion that he deliberately
suppressed the treatment records of the deceased to suppress the fact
that the victim sustained burn injuries when her dress accidentally
caught fire.
30. At the time of 313 questioning, the first accused stated that he
never subjected his wife to cruelty or harassment and never demanded
any money and at the time of occurrence, his wife was dressed for
attending a marriage and while he was ironing his dress, his wife went to
the kitchen for boiling the milk and thereafter, he heard her cries and
reached the kitchen. He would say that when he attempted to save his
wife, he also sustained burn injuries and that she was taken to hospital
after covering her with his lungi and his wife told the relatives and the
doctor that her sari caught fire from the stove and after the death of his
wife, he availed treatment for the burn injuries on his hand from the
Government Hospital Valiyakunnu. The accused further stated that after
5 days, the brother of his wife along with another relative came to his
house and demanded to transfer the ownership of the house to the
name of his son and he has not agreed for the same.
31. The brother of the accused is examined as DW1 and according
to him, he was also present in the house at the time of occurrence and
Crl. Appeal No. 3 of 2007 : 15 :
that he went there to attend a marriage in a nearby house. He deposed
that while he was talking to his brother Sreekumar and wife Beena, the
deceased Beena went to the kitchen for boiling the milk and
subsequently they heard her cries from the kitchen and when they
reached the kitchen, they saw the sari of Beena burning in fire and when
his brother Sreekumar attempted to extinguish the fire with his hands,
he also sustained injuries and thereafter they covered Beena with a lungi
and took her to a hospital at Chirayinkeezhu and thereafter to the
Medical College Hospital.
32. According to DW1, the victim told him that her sari caught fire
from the hearth. In cross examination, DW1 stated that there was a
stove and hearth in the kitchen and he is not sure whether the sari
caught fire from the stove or hearth.
33. As noticed earlier, there is no satisfactory explanation from
the side of the prosecution for not producing the treatment records of
the victim and not examining the doctor who treated the victim in the
hospital. Admittedly, the victim was fully conscious for the 3 days while
she was undergoing treatment in the Medical College Hospital and as per
the usual procedure, the injured could have stated the cause of injury to
the doctors who examined her in the hospital.
Crl. Appeal No. 3 of 2007 : 16 :
34. It is pertinent to note that the last incident of cruelty allegedly
occurred before the housewarming ceremony of the accused. But, the
evidence of PW8 clearly shows that at the time of the house warming
ceremony, she returned from there without eating food, for the reason
that it was the mother of the accused who entered the new house with
the lighted lamp The evidence of PW8 further shows that when PW8
attempted to question the accused in this connection, it was the
deceased who prevented her and therefore, it is clear that there are
other issues between the family of PW8 and the accused.
35. In order to prove the offence under Section 498A IPC, the
prosecution has to establish the consequences of cruelty which are likely
to cause a woman to commit suicide or to cause grave injury or danger.
Section 498A IPC reads as follows:
“498A. 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 wilful 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 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
Crl. Appeal No. 3 of 2007 : 17 :for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.]”
36. It is well settled that every type of harassment or cruelty
would not attract the offence under Section 498A IPC and to attract
the offence under Section 498A IPC, it must be established that
cruelty or harassment to wife was to force her to cause grave bodily
injury to herself or to commit suicide, or that the harassment was to
compel her to fulfil illegal demand for dowry. There is no evidence in
this case to show that the deceased has made any complaint against
the accused prior to her death regarding the ill treatment or
manhandling before any of the authorities and if in fact, she had
suffered manhandling either physical or mental, definitely she would
have given a proper complaint before the concerned authorities.
37. In this case, there is no satisfactory evidence for any cruelty
or harassment to the deceased as a consequence of her failure to
meet any demand for dowry and the evidence from the side of the
prosecution that the deceased feared or apprehended that her
husband will beat her if in case she fails to bring money for the
construction of the house, is not sufficient to constitute the ingredients
of cruelty or harassment contemplated under Section 498A IPC, as it
is well settled that minor quarrels between the spouses in the ordinary
Crl. Appeal No. 3 of 2007 : 18 :
life because of difference of opinion or mere sporadic incidents of ill
treatment are not sufficient to establish the offence under Section
498A of IPC.
38. On a careful reappreciation of the entire evidence on record,
it is found that the prosecution has suppressed material evidence
regarding the treatment of the deceased in the hospital and it is clear
from the facts and circumstances that the deceased sustained burn
injuries when her sari accidentally caught fire, while she was boiling
milk in the kitchen after dressing for attending a marriage function
and in view of the hostility between the accused and family members
of PW8, for permitting the mother of the accused to enter the new
house with the lighted lamp and in the absence of satisfactory
evidence regarding cruelty or harassment, the accused is entitled for
the benefit of reasonable doubt. The point is answered accordingly.
Therefore, the impugned judgment requires to be interfered with and I
do so.
39. In the result, this appeal is allowed. The conviction and
the sentence passed by the trial court against the accused for the
offence punishable under Section 498A IPC as per the impugned
judgment is set aside and the accused is acquitted under Section
Crl. Appeal No. 3 of 2007 : 19 :
235(1) Cr.P.C. His bail bond is cancelled and he is set at liberty
forthwith.
Interlocutory applications, if any pending, shall stand closed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv