SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

State Of Kerala vs Ramadas @ Shaji on 22 February, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE A.M.BABU

FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940
CRL.A.No. 645 of 2014

AGAINST THE JUDGMENT IN SC 641/2010 of COURT OF SESSION, PALAKKAD
DIVISION DATED 7-12-2013

CRIME NO. 144/2010 OF MANKARA POLICE STATION , Malappuram

APPELLANT/COMPLAINANT:

STATE OF KERALA
REPRESENTED BY DEPUTY SUPERINTENDENT OF
POLICE,PALAKKAD,CRIME NO.144/10,MANKARA POLICE
STATION.

BY ADV. SPL.PP. SMT.S.AMBIKA DEVI FOR OFFENCE AGAINST
WOMEN AND CHILDREN

RESPONDENTS/ACCUSED:
1 RAMADAS @ SHAJI
S/O.CHATHUNNI,THENKITTIL HOUSE,MANNUR,PALAKKAD-
678642.

2 THANKAMANI
W/O.CHATHUNNI,THENKITTIL HOUSE,MANNUR,PALAKKAD,PIN-
678642.

3 NISHAMOL
W/O.PRAVEENKUMAR,THENKITTIL
HOUSE,MANNUR,PALAKKAD,PIN-678642.

4 CHATHUNNI
W/O.RAMAN,THENKITTIL HOUSE,MANNUR,PALAKKAD,PIN-
678642.

BY ADVS.
SMT.M.M.DEEPA
SRI.P.VIJAYA BHANU (SR.)
SRI.VIPIN NARAYAN

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2019,
ALONG WITH CRA(V).406/2015, THE COURT ON 22.02.2019 DELIVERED THE
FOLLOWING:
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE A.M.BABU

FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940

CRA(V).No. 406 of 2015

AGAINST THE JUDGMENT IN SC 641/2010 of COURT OF SESSION,
PALAKKAD DIVISION DATED 07-12-2013

APPELLANT/ LEGAL HEIRS OF VICTIM:

1 CHAMI V
AGED 75 YEARS
S/O.CHERIYAKUTTY

2 RUGMINI
AGED 55 YEARS
W/O. CHAMI,
BOTH RESIDING IN VALIYAKATTIL VEEDU,MANNUR
WEST,KOTTAKUNNU POST,PALAKKAD TALUK AND DISTRICT

BY ADVS.
DR.K.P.SATHEESAN (SR.)
SRI.R.SREEHARI

RESPONDENTS/STATE AND ACCUSED 1 TO 4:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM THROUGH THE DEPUTY SUPERINTENDENT
OF POLICE,PALAKKAD (CRIME NO 144/2010 OF MANKARA
POLICE STATION)

2 RAMADAS @SHAJI
AGED 40 YEARS
S/O.CHATHUNNI
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
3

3 THANKAMANI
AGED 61 YEARS
W/O.CHATHUNNI

4 NISHAMOL
AGED 30 YEARS
W/O. PRAVEENKUMAR

5 CHATHUNNI
AGED 68 YEARS
S/O. RAMAN,2 TO 5 ARE RESIDING AT THENKITTIL
HOUSE,MANNUR,PALAKKAD DISTRICT PIN 678 642

BY ADV. SMT.S.AMBIKADEVI, SPL.PP FOR ATTROCITIES
AGAINST WOMEN AND CHILDREN

THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN
FINALLY HEARD ON 30.1.2019 ALONG WITH CRL.APPEAL NO.645/14 THE
COURT ON THE 22.02.2019 DELIVERED THE FOLLOWING:
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
4

JUDGMENT

Shaffique, J.

These appeals have been preferred by the State of Kerala and the

father of the victim, Chami challenging the judgment of conviction and

order of sentence passed by the Special Additional Sessions Judge,

Palakkad dated 07/12/2013 in S.C. No. 641 of 2010 by which the

accused/appellants were not found guilty for offences alleged against

them and hence were acquitted of all charges.

2. The case of the prosecution, in short, is as follows:

The deceased was married to the 1 st accused as per religious

rites of the parties on 11/02/2008 at Mannur Sree Kaimathukavu

temple. They began to live as husband and wife at the house of the 1 st

accused at House No.1/135, Mannur Thekkinkadu at Mannur

Panchayath along with accused nos. 2 to 4. The accused used to

torture her telling that the dowry given was inadequate and also by

demanding more dowry in cash and kind. After the delivery of the

child, she came back to her matrimonial home. Thereafter, she was

asked to bring money and gold and was subjected to cruelty and

torture both mental and physical. Due to all these, on 08/04/2010, at

09.00 p.m, she poured kerosene on her body in the said house and set

her ablaze and died out of burn injuries so sustained.
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
5

3. Prosecution examined PW1 to PW18 as witnesses, marked

documents Exts.P1 to P17 and identified articles as MO1 to MO31.

Exts.D1 to D8 contradictions were marked by the defence. During 313

examination, all the accused denied circumstances that appeared

against them and pleaded innocence. Defence examined DW1 and

DW2 from their side.

4. This is an appeal against judgment of acquittal passed by

the trial Court. It is settled law that appellate Courts have to restrain

themselves from reversing the finding of a trial Judge merely on the

ground that another view is possible or that a better view could have

been taken. Unless it is shown to the satisfaction of this Court that the

judgment is perverse or that it is unreasonable, our interference is not

called for in the matter. Keeping these basic principles in mind, let us

go into the appreciation of evidence afresh.

5. At the very outset, it can be seen that there is no charge of

Section 498A of I.P.C. against any of the accused. At the same time,

they were charged with Section 304B of I.P.C. which is the offence of

dowry death. The Court charge further shows that the accused were

charged by the trial Court with offence under Sections 304B and

Section 302 read with Section 34 of the Indian Penal Code, 1860 (for

short ‘IPC’) in the light of Regbir Singh v. State of Haryana (CDJ

2010 SC 1067). Learned Senior counsel for the accused submitted that

the way charge was framed by the trial Court was not legal. S.304B of
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
6

I.P.C. and S.302 read with S.34 of I.P.C. cannot go simultaneously. We

make it clear that there is nothing in S.304B as to prevent the Court

from charging the accused with S.302 of IPC. S.304B is a special

provision inserted in I.P.C. to deal with the menace of dowry death. It

reads as under:-

“304B. Dowry death.–

(1) 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 her death.

Explanation.–For the purpose of this sub-section, “dowry”
shall have the same meaning as in
section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life.

6. It is well settled that for holding a person liable under

Section 304B of I.P.C., the essential ingredients to be proved by the

prosecution are as follows:-

(i) The death of a women should be caused by burn or bodily

injury or otherwise than under a normal circumstance;

(ii) Such a death should have occurred within seven years of

her marriage;

(iii) She must have been subjected to cruelty or harassment by
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
7

her husband or any relative of her husband;

(iv) Such cruelty or harassment should be for or in connection

with demand of dowry;

(v) Such cruelty or harassment is shown to have been meted

out to the women soon before her death.

7. On proof of the essential ingredients under Section 304B, it

becomes obligatory on the part of the Court to raise a presumption

that the accused caused dowry death. Presumption under S.113B of

the Indian Evidence Act, 1872 kicks in:

“113B. Presumption as to dowry death.–When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.

Explanation.–For the purposes of this section, “dowry
death” shall have the same meaning as in
section 304B, of
the Indian Penal Code, (45 of 1860)”.

8. When Section 113-B of Evidence Act and Section 304B I.P.C.

are read together, it is palpable that there must be material to show

that soon before her death, the victim was subjected to cruelty or

harassment. Apex Court has laid down in catena of decisions that

‘soon before’ is a relative term and it would depend upon circumstance

of each case and no straight jacket formula can be laid down as to

what would constitute the said period. There must be in existence,
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
8

proximate live link between the facts of cruelty in connection with

demand of dowry and the death. If the alleged incident of cruelty is

remote in time and had become stale enough not to disturb mental

equilibrium of the women concerned, it would be of no consequence.

The word used is ‘shown’, not ‘proved’ in Section 304B IPC. It indicates

that the prosecution can discharge its burden by preponderance of

probability. The word ‘deemed’ used in that Section requires that an

accused has to prove his innocence beyond reasonable doubt. The

accused is required to rebut the presumption under Section 113B of

the Indian Evidence Act by proving his innocence. Thus, where

prosecution has shown that ‘soon before her death’ the deceased was

subjected to cruelty or harassment by the husband or in-laws in

connection with demand of dowry, the presumption under Section

113B of Evidence Act arises and the Court shall presume that such

person, who had subjected the women to cruelty or harassment in

connection with any demand for dowry, shall be presumed to have

caused the dowry death. The presumption that arises in such cases

may be rebutted by the accused. Plain reading of Section 304B clearly

shows that the death which is talking about could be homicide or

suicide. Hence, there is no legal bar in charging the accused with

S.304B and S.302 of I.P.C. simultaneously. Of course, the question is

whether the said charges were proved by the prosecution to the

satisfaction of Court.

Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
9

9. Evidence adduced in this case, in brief, are as follows:-

PW1 is an attestor to Ext.P1 mahazar. PW2 and PW3 are attestors

to Ext.P2 inquest report. Ext.P3 is marked through PW4. PW5 is the

Civil Police Officer through whom Ext.P4 seizure mahazar of wedding

invitation card (MO2) and wedding photos (MO1) of the 1 st accused and

the deceased were marked. Ext.P5 is the seizure mahazar prepared at

the time of seizing 21 digitally taken photos (MO3 to MO23) and a CD

(MO24) which were taken at the time of inquest of the deceased. PW6

is the Special Village Officer who prepared Ext.P6 site plan. PW7 to

PW11 are cited to prove the allegation of demand of dowry and cruelty

meted out by the accused against the deceased.

10. It is apt to look into the evidence of witnesses in detail. PW7

Krishnadas is the brother of the deceased. He gave Ext.P7 statement

to police. He deposed that his sister Krishnaleena was given in

marriage to the 1st accused as per customary rites on 11/02/2008 at

Sree Kaimathukavu temple, Mannur, Palakkad. It is his version that 50

sovereigns of gold and a sum of `1,50,000/- (Rupees One Lakh and

Fifty Thousand only) were given at the time of marriage. The deceased

started living in the house of the accused and in the seventh month of

pregnancy, she was taken back to her parental home. Nine months

after delivery, she was brought back to her matrimonial home by

himself, her mother, her father and local people. He deposed that his

sister died and it was a dowry death. Ramadas, his father Chathunni,
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
10

his mother Thankamani and Nisha tortured her physically and

mentally. She was fisted and beaten by them several times and was

taken back home. Alleging that property and money given were

insufficient, she was severely tortured and even before pregnancy, she

was forced to return home 2-3 times. It is his further version that they

went for compromise talk with accused and told them that they should

not ask money to Krishnaleena, instead they should ask them if they

need any money. The accused promised not to torture her. According

to PW7, there were marks of torture on her body. Besides the gift

received at the time of marriage, the accused demanded a further sum

of `50,000/- (Rupees Fifty Thousand only) and gold ornaments as the

gold ornaments given were inadequate. It is his deposition that at the

time of returning to matrimonial home after delivering the child, 5

sovereigns of gold was given to the child. A cot, almirah, fridge, bed

and articles like textiles worth `75,000/-(Rupees Seventy Five

Thousand only) were given to the accused. A sum of `30,000/- (Rupees

Thirty Thousand only) was given by the father and mother of the

deceased to the hands of 3 rd and 4th accused. They demanded `5 lakhs

for purchasing a car. There was no means for them to give that

amount. According to PW7, he had a debt of `2,00,000/- (Rupees Two

Lakhs only) to the bank. His father was also in debt. The accused

wanted a deposit of `1,00,000/- (Rupees One Lakh only) in the name of

child. It is his version that Krishnaleena telephoned twice and told
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
11

them that she cannot bear the assault and accordingly she was taken

back to parental home. After staying at parental home for 10 days,

again she was taken to matrimonial home. After 10 to 15 days, she

again returned complaining the same thing. They consoled her and

after 10 to 12 days, sent her back to matrimonial home again. Later,

on 08/04/2010, she died. He identified MO1 marriage photo and MO2

marriage invitation card.

11. Court below did not place reliance on the evidence of PW7

stating that the statements made by him did not find a place in his

previous statement to police. His case regarding vital aspects are

newly introduced in Court. There is no evidence for the alleged

handing over of `75,000/- and purchase of fridge, bed, gold ornaments

and neither a case before the police to that effect. PW7 pleaded

ignorance regarding the circumstances under which the money was

demanded by the accused. He denied the suggestion that the 3 rd

accused was suffering from cancer which proves that he is not

acquainted with the accused.

12. PW8 Chami is the father of the deceased. He deposed that

his daughter was given in marriage to the first accused in the year

2008 as per religious rites and customs. At that time, 50 sovereigns of

gold ornaments and an amount of `50,000/- (Rupees Fifty Thousand

only) was given to the accused. It is his version that Krishnaleena

resided at her husband’s house for 3 to 4 months and stayed 3 to 4
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
12

months in his house. According to him, all the accused demanded

money and ornaments repeatedly. She was beaten and abused. Within

4 months, she had returned to parental home 3 to 4 times. Meanwhile

she gave birth to a baby boy and after 9 months of delivery, the child

and Krishnaleena were taken to her matrimonial home by PW8 and

PW9. It is his deposition that at that time, a sum of `70,000/- (Rupees

Seventy Thousand only), a cot, fridge and a bed were given apart from

a sum of `30,000/- (Rupees Thirty Thousand only). The said amount

was given to the 1st accused at his residence. A few days later, the

victim telephoned and told that she wanted to come back to parental

home as she was being severely harassed and she was not allowed to

live. PW8 went to their home. It is his version that Krishnaleena told

him that the accused told her that her ornaments were inadequate.

PW8 asked to remain there peacefully for the sake of child. It is his

further version that `5,00,000/- (Rupees Five Lakhs only) was

demanded by the accused and they also asked to deposit `1,00,000/-

(Rupees One Lakh only) in the name of child. According to PW8, this is

the reason for the death of his daughter. She called him in the previous

night and told that since the promised money was not paid by him, it is

not possible to live and she would not be allowed to live. On the next

day, he heard that his daughter is no more. He identified all the

accused in Court and also identified MO26 to MO31 ornaments of the

deceased and MO32 as the can found at the place of occurrence.
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
13

13. Court below disbelieved the version of PW8 stating that his

evidence contradicts the testimony of PW7 regarding the articles given

and demand made by the accused. Court below found that according

to PW8, `30,000/- was given to the 1 st accused whereas PW7 stated

that it was handed over to the parents of 1 st accused. PW8 did not

speak the handing over of 5 sovereigns of gold to the child or clothes

and other items worth `75,000/- besides cot, almirah, fridge and bed.

The evidence are inconsistent as to what had happened to the victim

after she was sent back to the house of the accused after delivering

child.

14. PW9 Rukmani is the mother of the victim. She deposed that

her daughter was married to 1 st accused in the year 2008. According to

her, whenever her daughter had come to her house, she would

complain about the harassment done to her by the accused

demanding money and ornaments. The accused used to torture her

daughter. Her daughter suffered a lot at the hands of the accused.

PW10 and PW11 also deposed in the same way stating that the victim

was being harassed by the accused in connection with demand for

more money and gold ornaments. Court below did not place reliance

on their evidence as there was no previous statement to police in line

of their deposition in Court. There was no specific allegation of cruelty

demanding dowry as well.

15. PW18 Dr.Hithesh conducted the autopsy on the victim on
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
14

09/04/2010 and issued Ext.P17 post-mortem certificate. According to

him, Krishnaleena died due to burns. It is pertinent to note that PW18

did not depose the contents of Ext.P17 during his testimony. In the

case at hand, evidence adduced by the prosecution would show that

death of Krishnaleena was a suicide. The question of homicide does

not arise at all. Prosecution does not even have a case of homicide.

Nobody was present in the house at the time of incident except 3 rd

accused who was taking care of the child of the victim. There is also

evidence to the effect that attempts were made to break open the

room and water was seen poured over the body of the victim. Hence

offence under Section 302 read with Section 34 of I.P.C. crumbles at

the very outset.

16. The remaining question is whether the appellants are liable

under Section 304B of IPC. On a perusal of the evidence, we could not

find any evidence to hold that the victim was subjected to cruelty by

the accused in connection with demand of dowry. Prosecution did not

discharge its onus of proving specific instances of cruelty or

harassment in connection with demand of dowry soon before the

death of the victim. It can also be seen that specific instances of

cruelty demanding dowry are not meted out from the evidence of PW7

to PW11. Even in matrimonial disputes, specific instances of cruelty is

a material aspect. In criminal trial, there cannot be a conviction under

Section 304B unless the above is proved. What we find from the
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
15

evidence are general allegations regarding demand for dowry. When it

was made and under what circumstances such demand was made are

conspicuously lacking. Under which circumstances the victim

complained of the demand of dowry etc., are some of the details which

specify the demand for dowry and cruelty acted upon by the accused

on the victim. No such evidence is available in this case. Ext.P1

contains no specific allegation of dowry demand or cruelty. None of

the witnesses has a case or complaint that their statements were not

completely recorded by the investigating officer or that it were

erroneously recorded. The case of the prosecution before Court would

indicate that many ‘material aspects’ were introduced in Court for the

first time, which do not find a place in the previous statements of

witnesses. Such omissions amount to contradiction which withers away

the aspect of dowry harassment or cruelty. No suicide note or diary of

the victim is available to support the case of the prosecution. We are in

dark as to what specific harassment, whether physical or mental, the

victim had undergone at the hands of the accused which allegedly

drove her to commit suicide.

17. Of course, the death of Krishnaleena occurred after 2 years

and 2 months of marriage. Evidence further reveals that her death was

due to burns and it was a suicide. But nothing is shown in evidence to

arrive at a conclusion that the victim was subjected to cruelty in

connection with demand for dowry by the accused. Unless the same is
Crl.Appeal.No.645/2014
Crl.A.(V).No.406/2015
16

proved by the prosecution at least as a probability by preponderance,

no offence under Section 304B is made out and hence no presumption

under Section 113B could be raised.

18. The observation by the trial Court that the victim committed

suicide because the dowry demanded was not given to her by her

parents is not backed by any evidence and hence needs no

interference. Apart from that, we are of the view that there are

sufficient reasons for the trial Court to arrive at its verdict of acquittal.

The appeals are liable only for dismissal and we do so.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

//True Copy// JUDGE
Rp
PS to Judge

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2019 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

Web Design BangladeshWeb Design BangladeshMymensingh