IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Crl.Rev.Pet.No. 179 of 2007() ----------------------------- SC.12/2003 OF SESSIONS COURT, MANJERI CP.47/2002 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI .................... REVN. PETITIONER/ DEFACTO COMPLAINANT: ------------------------------------------------------------------- P. ARAVINDAN, S/O. BHASKARAN, PAPPAYIL, VALLIKKUNNU, MALAPPURAM DIST. BY ADV. SRI.M.P.PRAKASH RESPONDENTS/ ACCUSED/COMPLAINANTS: ---------------------------------------------------------------- 1. GIREESH BABU @ GIREESH, S/O. VELAYUDHAN, THARZHATHETHIL HOUSE, VALLIKKUNNU AMSOM DESOM, MALAPPURAM DIST. 2. MALUKUTTY @ AMMUKUTTY, THARZHATHETHIL HOUSE, VALLIKKUNNU AMSOM DESOM, MALAPPURAM DIST. 3. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. * ADDL. R4 IS IMPLEADED ADDL. R4: P. SUDHEER. S/O.BHASKARAN, PAPPAYIL, VALLIKKUNNU, MALAPPURAM DISTRICT. * ADDL. R4 IS IMPLEADED AS PER ORDER DATED 20/05/2005 IN CRL.M.A.NO.7242 OF 2005. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R3 ADV. SRI.P.SANJAY FOR R1 & R2 ADV. SRI.A.PARVATHI MENON FOR R1 & R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 179 OF 2007 ------------------------------------------ Dated this the 6th day of November, 2008 O R D E R First respondent is the husband and second respondent the mother-in-law of the deceased Nisha, who committed suicide on 23.5.2002 at about 11 p.m. at her matrimonial home. Ext.P1 F.I. Statement was launched by revision petitioner, the elder brother of deceased Nisha, based on which Ext.P1(a) F.I.R. was prepared and crime for the offence under section 498 A read with section 34 of Indian Penal Code was registered. During investigation, the offence under section 306 IPC was also incorporated. After completing investigation, charge was laid for the offence under section 498A and 306 read with section 34 of IPC. Judicial First Class Magistrate, Parappanangadi committed the case to Sessions Court, Manjeri. Accused pleaded not guilty when charge was framed and read over to them. Prosecution examined 8 witnesses and marked 12 exhibits. On the side of the defence Exts. D1 and D1(a), portions of statement of PW2, the mother of revision petitioner, recorded under section 161 of Code of Criminal Procedure were CRRP179/07 2 confronted and marked. Learned Sessions Judge on the evidence acquitted the accused under section 235(1) of Cr.P.C. The order of acquittal is challenged in this revision filed by the brother of the deceased under section 397 read with section 401 of Code of Criminal Procedure. 2. Learned counsel appearing for revision petitioner and learned counsel appearing for respondents 1 and 2 were heard. 3. The argument of the learned counsel appearing for the revision petitioner is that learned Sessions Judge did not properly appreciate the evidence or considered the relevant aspects. It was argued that learned Sessions Judge did not consider the evidence on cruelty as provided under clause (b) of explanation to section 498A and applicability of clause (a) was not at all considered. It was further argued that instead of applying section 113A of Evidence Act Section 113 B was considered. Learned counsel also argued that the evidence of PWs 1 and 2 establish that deceased Nisha was treated with such cruelty and harassment which drove her to commit suicide and applying the presumption provided under section 113A of Evidence Act it should have been found that accused committed the offences under section 306 and 498A and order of acquittal CRRP179/07 3 is illegal. Learned counsel argued that learned Sessions Judge did not find that the evidence of PWs 1 and 2 either not credible or not reliable and if the evidence of PWs 1 and 2 is accepted, there is sufficient evidence to conclusively prove that deceased Nisha was treated with such cruelty and was harassed for extracting dowry and by such cruelty and harassment she committed suicide and therefore the accused should have been convicted for the offence under section 498A and 306 read with section 34 of IPC. 4. Learned counsel appearing for respondents 1 and 2 argued that as rightly found by learned Sessions Judge there is absolutely no evidence to prove that respondents 1 and 2 either treated deceased Nisha with such cruelty or harassed her so as to drive her to commit suicide. It was pointed out that apart from the general statement, no specific instance of cruelty was deposed by PWs 1 and 2 and on the evidence of PWs 1 and 2 it cannot be found that the accused committed any of the offences. 5. On hearing the learned counsel and going through the evidence tendered by PWs 1 and 2 I cannot agree with the argument of the learned counsel appearing for petitioner that appreciation of evidence either perverse or not proper. Being a CRRP179/07 4 revision against an order of acquittal, interference is warranted only if there is glaring defect in the procedure followed or any manifest error on a point of law and consequential flagrant miscarriage of justice. If on the evidence the view taken by the learned Sessions Judge is a possible and reasonable view, it is not for this Court to reappreciate the evidence and substitute findings of the trial Court and to interfere with the order of acquittal. 6. There is force in the argument of the learned counsel appearing for petitioner that learned Sessions Judge mainly considered the evidence based on the allegation regarding the demand for dowry. But as rightly pointed out by the learned counsel appearing for respondents 1 and 2, if the evidence of PWs 1 and 2 do not establish a cruelty or harassment as provided under explanation to section 498A, no interference is warranted. 7. The explanation to section 498A defines cruelty for the purpose of section 498A under clause (a) means any willful 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 or limb or health whether mental or physical of the woman. Under CRRP179/07 5 clause (b) cruelty means 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 for property or valuable security or consideration on account of failure by her or any person related to her to meet such demand. Learned Sessions Judge appreciating the evidence found that there was no evidence to prove that there was an unlawful demand for dowry and so there was no cruelty as provided under section 498A. On going through the evidence of PWs 1 and 2, I do not find any reason to interfere with that finding as it is the only view that could possibly be taken on the evidence on record. Though learned Sessions Judge did not elaborately consider the question whether there was cruelty by willful conduct of such a nature as is likely to drive Nisha to commit suicide or to cause grave injury or danger to her life, limb or health, evidence of PWs 1 and 2 even if accepted will not establish a cruelty of such a nature which would drive her to commit suicide. Section 113A of Indian Evidence Act could be invoked only if there is evidence to prove the cruelty as provided under section 498A of Indian Penal Code. Under section 113A when the question is whether the commission of suicide by the woman had been abetted by her CRRP179/07 6 husband or any relative of her husband as provided under section 306 of IPC and it is shown that she committed suicide within a period of seven years from the date of her marriage and that her husband or such relative had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband. The explanation makes it clear that for the purpose of this section, cruelty shall have same meaning as provided under section 498A of IPC. Therefore for the presumption provided under section 113A there should be evidence to prove that her husband or such relative had subjected her to cruelty and that cruelty comes under clause (a) or (b) of explanation to section 498A of IPC. On the evidence it cannot be said that the deceased Nisha was subjected to cruelty as provided under clause (a) or (b). Learned Sessions Judge has also relied on Exts.P9 and P10, and so the letter and the diary produced by father-in-law of deceased Nisha before the investigation officer. The argument of the learned counsel appearing for petitioner is that as PWs 1 and 2 denied the handwriting of deceased Nisha in Exts.P9 and P10, the recitals therein could not have been relied on without proof. It CRRP179/07 7 is to be borne in mind that Exts.P9 and P10 were produced before investigating officer, during investigation. It is for the investigating officer to investigate on the question whether Exts.P9 and P10 were that of the deceased Nisha or subsequently created as now argued by the learned counsel. So long as there is no investigation and no case for the prosecution that Exts.P9 and P10 are not that of deceased Nisha, for the reason that PWs 1 and 2 did not agree with the case that it is a letter written or a diary maintained by deceased Nisha, it cannot be said that they cannot be reliable. On the materials and evidence the view taken by learned Sessions Judge is absolutely a possible and reasonable view. Therefore there is no reason to interfere with the order of acquittal. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-