IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 CRL.A.No. 210 of 2011() ----------------------- SC.689/2004 of ASSISTANT SESSIONS COURT, CHERTHALA .................... APPELLANT(S): IST ACCUSED ------------------------- SAJEEVAN, S/O.SUGUNAN, MANATHARA HOUSE, WARD NO.2, KUTHIATHODU PANCHAYATH, ALAPPUZHA DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN SMT.SABINA JAYAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2011, ALONG WITH CRA NO. 449 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ---------------------------------------------- Crl. Appeal Nos.210 & 449 of 2011 ----------------------------------------------- Dated this the 28th day of October, 2011 JUDGMENT As the impugned judgment in both the appeals is one and the same and the appellants in the above two appeals are the accused in the very same impugned judgment and the facts and circumstances and the question of law involved are identical, both the above appeals are heard together and being disposed of by this common judgment. 2. In both the appeals, the challenge is against the judgment dated 29.1.2011 in SC No.689/2004 on the file of the court of Asst. Sessions Judge, Cherthala. Crl.A.No.210/2011 is preferred by the 1st accused therein challenging his conviction and sentence u/s.306 and 498A of IPC, whereas Crl.A.No.449/2011 is preferred by the 2nd accused challenging her conviction and sentence u/s.498A of IPC, who is the mother of the 1st accused, the appellant in the other appeal. 3. The prosecution case is that the 1st accused married one Sheela, the daughter of PW5 and CW1 and thus while they were living as husband and wife in the house of the 1st accused, in Ward No.2 of Kuthiyathode Panchayath, as the said Sheela questioned the connection of the 1st accused with some other ladies, she was subjected to mental and physical cruelty by Crl.A.Nos.210 & 449 of 2011 :-2-: the accused 3 in number including the 3rd accused, the daughter of the 2nd accused and in furtherance of their common intention to subject her to cruelty, the 1st and 2nd accused on 9.6.2002 voluntarily caused hurt to her and the victim was admitted in the hospital and subsequently, on account of the physical and mental cruelty and harassment meted out against her on 17.7.2003 at about 10.a.m, the said Sheela attempted to commit suicide by pouring kerosene on her body for which 1st accused abetted her to commit suicide, by setting her ablaze from the fire, which he lighted in the kitchen and accidentally fire from the hearth caught on Sheela's dress and she sustained serious burn injuries and she succumbed to her injuries at about 6.55 a.m on 23.7.2003. Thus, according to the prosecution, the accused who are 3 in number committed the offence punishable u/s.498A, 306 r/w Section 34 of IPC. 4. With the above allegation, Crime No.155/2003 was registered in the Kuthiyathode Police Station for the said offences and on completing the investigation, a formal report was preferred in the Judicial First Class Magistrate Court-I, Cherthala based upon which the learned Magistrate took cognizance for the said offences and instituted CP No.18/2004. Subsequently, the learned Magistrate committed the case to the Sessions Court, wherein the case was received on file as SC No.689/2004 and Crl.A.Nos.210 & 449 of 2011 :-3-: thereafter the case was made over to the present trial court for disposal. 5. On the appearance of the accused, after hearing the Public Prosecutor as well as the accused, the learned Judge of the trial court framed a formal charge, against the accused for the offence punishable u/s.498A, 306 r/w Section 34 of IPC, which when read over to the accused they denied the charge and pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the testimony of Pws.1 to 21 and documents Exts.1 to 27. Beside that, MOS 1 and 2 were identified as material objects. After the close of the prosecution evidence, the accused were questioned u/s.313 of Cr.P.C giving them an opportunity to make their response regarding the incriminating evidence and circumstances, that emerged during the prosecution evidence and the accused denied those incriminating evidence and circumstances. According to the accused, he never harassed the deceased mentally or physically and their marriage was a love marriage and because her parents were not in good terms, the deceased was mentally ill and the deceased looked upon him suspiciously when he talks with any other lady and on the date of incident she undertook a quarrel with him, on seeing him speaking with his aunty and in order to threaten him, she poured kerosene on her body and accidentally caught the fire from the kitchen hearth. According to him, the deceased on earlier occasion also has tried to Crl.A.Nos.210 & 449 of 2011 :-4-: threaten him by attempting to commit suicide. The 2nd accused said that she does not know anything about the incident and whereas the 3rd accused says that she got married and was living separately, with her husband for the last 12 years, and she never ill-treated the deceased and she is falsely implicated in this case. 6. The trial court after considering the entire evidence and materials on record and the rival pleadings formulated 5 points for its consideration and finally found that the prosecution has succeeded to prove the guilt of the 1st accused beyond any reasonable doubt for the offence punishable u/s.498A and 306 IPC and also held similarly the prosecution succeeded to prove the guilt of the 2nd accused for the offence u/s.498A of IPC. But the trial court found that prosecution has miserably failed to prove the charge leveled against the 3rd accused beyond reasonable doubt and accordingly, she is found not guilty for the offences punishable u/s.498A, 306, r/w Section 34 of IPC and thus accordingly, she is acquitted u/s.235(1) of Cr.P.C. As the 1st accused is found guilty for the offence u/s.306 and 498A r/w Section 34 of IPC, he is convicted thereunder and sentenced to undergo rigorous imprisonment for 10 years and to pay a sum of Rs.75,000/- as fine, in default he is directed to undergo simple imprisonment for one year u/s.306 IPC. He is also sentenced to undergo rigorous imprisonment for 3 Crl.A.Nos.210 & 449 of 2011 :-5-: years and to pay a fine of Rs.25,000/- u/s.498A of IPC and in default he is directed to undergo simple imprisonment for 3 months. It is ordered that the sentence shall run concurrently. On the basis of the finding against the 2nd accused, she is convicted u/s.498A of IPC and accordingly, she is sentenced to undergo imprisonment for 3 years and to pay fine of Rs.25,000/- and in default she is directed to undergo simple imprisonment for 3 months. It is also ordered that if fine collected, Rs.50,000/- shall be given by way of compensation to PW5, the mother of the deceased u/s.357(1) of Cr.P.C. Set off was allowed u/s.428 of Cr.P.C. It is the above finding and conviction and sentence are challenged in these two separate appeals by the 1st and 2nd accused. 7. I have heard Sri.C.P.Peethambaran, learned counsel appearing for the appellant in the above appeals and Smt. Lowsy, learned Public prosecutor for the State. 8. As I indicated earlier, to substantiate the allegation, the prosecution has examined Pws.1 to 21 and produced Exts.P1 to P27 documents. Among the prosecution witnesses, Pws.1 to 4 and Pws.7 to PWs.9 and PW10 turned hostile. Admittedly, the prosecution has no case that any person has witnessed the incident which allegedly taken place on 17.7.2003. PW1 is a neighbour of both the deceased as well as the accused Crl.A.Nos.210 & 449 of 2011 :-6-: and he is also a relative of the accused. He had turned hostile and therefore, his portion of 161 statement is marked as Ext.P1. PW2 is also a relative of the accused, who turned hostile and his portion of 161 statement is marked as Ext.P2. PW3 is another neighbour, who did not support the prosecution and his portion of 161 statement is marked as Ext.P3. PW4, who turned hostile is the wife of PW2 and her portion of 161 statement is marked as Ext.P4. 9. PW5 is the mother of the deceased and PW6 are the brother of the deceased. When PW5 was examined, she deposed that her daughter Sheela, the deceased eloped with the 1st accused on 24.7.2000 without their consent and thereafter 1st accused and the deceased lived as husband and wife in the house of the 1st accused along with other accused. While so, the deceased delivered a child and till that time the relationship between the two families was strained. She had further deposed that after the birth of the child, the marriage between the 1st accused and the deceased was registered with KPMS Branch No.21, wherein they were members and the said marriage was on 29.11.2001. When PW5 was examined, a complaint was lodged by the father of the deceased before the Supdt. of Police, Alappuzha which was marked as Ext.P5. Ext.P19 is the FIR registered on the basis of Ext.P5 complaint. Ext.P6 complaint dated 14.6.2002 lodged by the Crl.A.Nos.210 & 449 of 2011 :-7-: deceased in the Kuthiyathode Police Station connected with the incident on 8.6.2002 is also marked through PW5. When PW5 was examined, she has stated that on 8.6.2002 when Sheela sustained injury due to the assault made by the 1st and 2nd accused in their house, her husband, CW1 took the deceased to Thuravur Hospital and she was admitted therein as an inpatient for 5 days and treated for her injuries. She has also stated that after discharge of Sheela from the hospital at Thuravur, Sheela lodged a complaint before the Kuthiyathode Police Station. When PW6 was examined, he had also deposed in terms of the deposition of PW5. 10. PW7 is the signatory of Ext.P7 inquest, but he also turned hostile and his statement in Ext.P7 is marked as Ext.P8. Similarly PW8 is also a neighbour, who turned hostile, though he is an attester in Ext.P7 inquest. PW9 is another neighbour, who is the attester in Ext.P9 scene mahazar, but he had also turned hostile. 11. PW10 is the Asst. Surgeon of Community Health Center, Thuravur, through whom the prosecution marked Ext.P10 wound certificate with respect to the deceased connected with the incident that allegedly taken place on 8.6.2002. PW11 is another doctor attached to Taluk Hospital, Cherthala, who issued Ext.P11 wound certificate, by which it is certified that the deceased sustained 80% burn injuries. PW6 is the doctor, attached Crl.A.Nos.210 & 449 of 2011 :-8-: to Medical College Hospital, Alappuzha, who made autopsy on the body of the deceased and issued Ext.P12 Post postmortem certificate. PW13 is another doctor attached to Medical College Hospital, Alapuzha, who examined the deceased before and after recording the dying declaration of the deceased by PW17 Judicial First Class Magistrate-II, Alapuzha. PW14 is the photographer through whom Ext.P14(a) photos of the body of the deceased and Ext.P15(a to c) of its negatives are marked. PW15 is the Tahsildar, Cherthala Taluk, who prepared Ext.P7 inquest with respect to the body of the deceased. PW16 is an attester to Ext.P20 seizure mahazar with respect to the marriage certificate connected with the marriage between the 1st accused and the deceased. PW16 has also turned hostile. PW17 is the Judicial First Class Magistrate -II, Alappuzha through whom Ext.P13 dying declaration of the deceased was recorded. Besides that Ext.P16 letter of the Chief Judicial Magistrate, Alapuzha, authorizing PW17 to record the dying declaration of the deceased is also marked through PW17. PW18 is the Village Officer, Kuthiyathode through whom Ext.P18 sketch and plan of the place of occurrence is marked. PW19 is the Station House Officer of Kuthiyathode Police Station, who registered Ext.P19 FIR on the basis of Ext.P5 complaint. Besides that Ext.P9 scene mahazar, Ext.P5 FI Statement and Ext.P6 complaint has also been marked through PW19. PW19, is the Crl.A.Nos.210 & 449 of 2011 :-9-: officer, who undertook the initial investigation. PW20, who was the Joint Secretary of KPMS 21st Branch through whom Ext.P20 marriage register and Ext.P20(a) relevant entry of Ext.P20 were got marked. PW21 is the then Dy.Supdt. of Police, Cherthala, who conducted investigation and laid the charge. Ext.P21 mahazar with respect to the seizure of marriage certificate, Ext.P22 observation mahazar, mahazar with respect to MO2 plastic can, Ext.P24 recovery mahazar of P6 complaint, Ext.P25 recovery mahazar on MO1 cudjan leaves, Ext.P26 property list, Ext.P27 report to add charge u/s.306 were marked through PW21. It is the above evidence and materials which referred to and relied on by the learned Judge of the trial court in support of his finding and conviction of the accused. 12. The learned counsel for the appellants vehemently submitted that the findings of the learned judge of the trial court are absolutely illegal, incorrect and arbitrary and unsupported by any evidence. The learned counsel strenuously pointed out that even going by the evidence and allegation of the prosecution no offence u/s.306 is attracted against the accused since even according to the prosecution they have no case that the deceased committed suicide. It is also the submission of the learned counsel that the prosecution has miserably failed to prove that the death of the deceased was due to any harassment or cruelty meted against her by the Crl.A.Nos.210 & 449 of 2011 :-10-: accused and in support of the above submission the learned counsel has pointed out that first of all there is no allegation against the 2nd accused, the appellant in Crl.A.No.449/2011 that after the incident on 8.6.2002 that she had physically or mentally ill-treated the deceased. It is also the submission of the learned counsel that after the alleged incident on 8.6.2002, the deceased as well as the 1st accused were residing together and absolutely no incident of any kind of harassment either mental or physical is alleged or proved by the prosecution and therefore, the offence neither u/s.498A nor u/s.306 are attracted against the 1st accused/appellant in Crl.A.No.210/2011. The learned counsel has pointed out that after the alleged incident on 8.6.2002 the incident which led to the death of the deceased was taken place on 17.7.2003 on the expiry of more than one year time and therefore, there is no nexus between the so called harassment as alleged by the prosecution and the incident that taken place on 17.7.2003. Therefore, according to the counsel, the findings of the trial court against the appellant u/s.306 and 498A are against the evidence and materials on record and the essential ingredients of the above Sections are not attracted and therefore, the appellants are entitled to get a clear acquittal. In support of the above submission, the learned counsel for the appellant relied upon the decision of the apex court in Mohan v. State of Tamilnadu [2011 (2) KLT SN 59 Crl.A.Nos.210 & 449 of 2011 :-11-: (C.No.78) SC] and Gangula Mohan Reddy v. State of Andhra Pradesh [2010 (1) Supreme Court Cases 750]. 13. On the other hand, the learned Public Prosecutor, resisting the contention advanced by the counsel for the appellant vehemently submitted that the evidence that adduced by the prosecution, particularly through Ext.P13 dying declaration of the deceased itself is sufficient to prove the overt act of the 1st accused by which he abetted the deceased to commit suicide. According to the learned Public Prosecutor, as evident from Ext.P17 it can be seen that the 1st accused did not move his little finger to salvage the deceased, though fire spread over to her cloths and the above conduct of the accused itself is sufficient to prove his guilt and therefore, the findings of the trial court is fully justified and no interference is warranted. The learned Public Prosecutor further pointed out that the incident that taken place on 17.7.2003 is the continuation of the incident which taken place on 8.6.2002 for which there is ample evidence including that of Ext.P10 wound certificate and the evidence of PW10, who examined the deceased connected with the incident on 8.6.2002. Thus, according to the learned Public Prosecutor, the accused continuously subjected the victim for harassment and the contemporary documents would positively prove the said fact and the conduct of the 1st accused connected with the incident on Crl.A.Nos.210 & 449 of 2011 :-12-: 17.7.2003 would further substantiate the prosecution allegation against the accused. Therefore, according to the learned Public Prosecutor, the appellants deserve no leniency and no interference is warranted. 14. I have carefully considered the arguments advanced by Sri.C.P.Peethambaran, learned counsel appearing for the appellants and Smt.Lowsy, the learned Public Prosecutor. I have perused the judgment of the trial court meticulously and gone through the evidence and materials on record. 15. The specific case of the prosecution is that the deceased Sheela was married by the first accused and while they were residing in the house of the first accused in Ward No.2 of the Kuthiathode Panchayath, the accused three in number used to quarrel with the deceased and subjected her to mental and physical cruelty as the deceased questioned the first accused regarding his connections with other ladies and thus, the accused in furtherance of their common intention subjected Sheela, the deceased to cruelty. It is the further case of the prosecution that on 9.6.2002, accused Nos.1 and 2 voluntarily caused hurt to the deceased whereupon she was hospitalised and treated and on account of the physical and mental cruelty and harassment, continuously meted out against the said Sheela by the accused, on 17.7.2003 at about 10 a.m., the said Sheela attempted to Crl.A.Nos.210 & 449 of 2011 :-13-: commit suicide by pouring kerosene on her body and the first accused abetted to commit suicide by setting her ablaze from the fire which he lighted in the oven and accidentally, fire from the hearth caught on Sheela's dress and she sustained several burn injuries and as a result of which, at about 6.55 a.m. on 23.7.2003, she succumbed to her injuries. Thus, the accused have committed the offences punishable under Sections 498A,306 read with Section 34 of I.P.C. I have already referred to the evidence and materials available on record and also the rival pleadings advanced by the defence counsel as well as the learned Public Prosecutor. In the light of the above referred rival pleadings and in the light of the materials and evidence on record, the question to be considered is whether the findings of the learned Judge of the trial court particularly under point Nos.1 to 4 are legally and factually correct and justified. Though the trial court considered the four points, which are raised for consideration together, according to me, it is better and convenient to consider the first question separately from points 2 to 4 since the first point is connected with the offence under Section 498A of IPC and points 2 to 4 are connected with the offence punishable under Section 306 of I.P.C. 16. From the available evidence and materials, it can be seen that the prosecution had succeeded in establishing certain facts, and as correctly Crl.A.Nos.210 & 449 of 2011 :-14-: held by the trial court in paragraph 15 of the judgment, the prosecution has succeeded in proving the fact that the first accused has married the deceased on 29.11.2001 and the said finding of the learned Judge is correct in view of the evidence of Pws.1 to 6,8,9 and PW20 and as per the documentary evidence Ext.P20(a). The prosecution has also proved that the wife of the first accused Sheela died due to burn injuries on 23.7.2003, as a result of the burn injuries sustained by her while she was residing in the house of the accused on 17.7.2003. As per the evidence on record, it is proved that as a result of injury sustained by the deceased on 17.7.2003, she was initially taken to the Taluk Hospital,Cherthala wherein she was attended by PW11, but she was referred to Medical College Hospital, Alappuzha. Ext.P11 is the wound certificate issued by PW11, the Doctor attached to the Taluk Hospital, Cherthala. Thus, while the deceased was undergoing treatment in the Medical College Hospital, she succumbed her injuries on 23.7.2003 and subsequently, PW12 conducted autopsy and Ext.P12 is the postmortem certificate issued by PW12. The evidence of PW12 and Ext.P12 document would show that Sheela died as a result of the first and second degree burn. It is also relevant to note that PW14, the Tahsildar of Cherthala Taluk conducted the inquest on the body of the deceased Sheela on the basis of the request made by PW19 and Ext.P7 is the inquest report. Thus, it can be Crl.A.Nos.210 & 449 of 2011 :-15-: seen that the deceased was the legally married wife of the first accused and they were residing together till 17.7.2003 and the wife of the first accused died as a result of the sever burn injuries sustained by her on 17.7.2003. 17. Therefore, the first question to be considered is whether the prosecution has succeeded in proving its allegation that in furtherance of their common intention, the accused subjected the deceased Sheela to cruelty so as to attract Section 498A of I.P.C. against them. At the outset, it is to be noted that though the prosecution has arrayed three persons as the accused, the third accused, who is the sister of the first accused, is acquitted by the trial court, of all the charges levelled against her. In order to consider the above point and point Nos.2 to 4 formulated by the court below, certain common facts are necessary and those facts, as proved by the prosecution, are as follows:- 18. The marriage between the first accused and the deceased was not an arranged one and as they fell in love, the deceased eloped along with the first accused as the parents of the deceased were not agreeable for such relation and thereafter, the deceased was residing along with the first accused in his home without undergoing a legal marriage and while so, a baby was born out of their co-habitation. After the birth of the baby, the marriage was registered on 29.11.2001 as evident from Ext.P20(a) and the Crl.A.Nos.210 & 449 of 2011 :-16-: said facts were proved through the depositions of PWs.1,6,8,9 and 20. According to the prosecution, while the deceased was residing along with the first and second accused, she was subjected to cruelty and harassment. To prove the above allegation, the prosecution mainly depends upon the evidence of PWs.5,6 and the documentary evidence such as Ext.P10 and Ext.P6 complaint dated 14.6.2002. It is relevant to note that though the prosecution has produced Ext.P13 dying declaration of the deceased, which are proved through PW17 and PW13 supported by Exts.P16 and P17 documents, in the dying declaration, there is no mentioning about the incident which is allegedly taken place on 8.6.2002 which is the subject matter of Ext.P6 complaint. Now let us examine whether the prosecution has succeeded in proving the incident which is alleged to have taken place on 8.6.2002. 19. Though I have repeatedly gone through the deposition of PWs.5 and 6, their evidence is not specific regarding the alleged incident on 8.6.2002. These witnesses have no direct knowledge regarding the alleged incident on 8.6.2002. According to them, what they have deposed before the court is on the basis of what gathered from the deceased. But, on a scanning of the evidence of PWs.5 and 6, it can be seen that their evidence is only general in nature and they failed to reproduce the words of the Crl.A.Nos.210 & 449 of 2011 :-17-: deceased as disclosed by herself to them. It has already come out in evidence that PWs.5 and 6 were not pleasant with the affairs between the deceased and the first accused and their relationship was not cordial and their animosity can be easily gathered from their own words. Therefore, it can be seen that the evidence of PWs.5 and 6 are