IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 11TH NOVEMBER, 2011 / 20TH KARTHIKA, 1933 CRL.A.No. 434 of 2003 ------------------------------- (AGAINST THE JUDGMENT IN SC.105/1998 of ADDL. SESSIONS COURT-II, MAVELIKKARA) .................... APPELLANT(S): ACCUSED: ------------------------------------- SATHYAN S/O. NARAYANAN, CHAROORKIZHAKKETHIL HOUSE, PALAMED, NOORANAD, MAVELIKKARA BY ADV. SRI.R.PADMAKUMAR SRI.M.R.VENUGOPAL SMT.S.JEEJABHAI SMT.DHANYA P.ASHOKAN RESPONDENT(S): COMPLAINANT: ----------------------------------------------- STATE OF KERALA (DEPUTY SUPDT. OF POLICE CHENGANNUR), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR AMT.A.LOWSY. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 434 of 2003 ---------------------------------------- Dated this the 11th day of November, 2011 J U D G M E N T The sole accused in S.C.No.105 of 1998 of the court of the Additional Sessions Judge-II, Mavelikkara is the appellant, who challenges his conviction and sentence imposed against him vide judgment dated 7.3.2003 of the trial court in the above sessions case. 2. The prosecution case is that the accused married the deceased Sangetha on 7.9.1997 as per Hindu Religious rites and customs and thereafter they were living as man and wife and at that time, the accused illtreated the deceased both physically and mentally demanding dowry and due to the continuous harassment, the deceased returned to her parental house and at about 10 a.m. on 11.1.1998, she consumed poison and while she was undergoing treatment in the Government Hospital, Adoor, she died at about 12.30 p.m. on 11.1.1998. On the basis of the above allegation, Crime No.9 of 1998 was registered in the Nooranadu Police Station for the offences CRL.A.NO.434 of 2003 :-2-: punishable under Section 498A and 306 I.P.C. 3. On completing the investigation, the police had preferred a report before the Judicial First Class Magistrate Court, Mavelikkara based upon which C.P.No.14 of 1998 was instituted in the said court and the learned Magistrate by his order dated 8.7.1998 committed the case to the Sessions Court wherein the same is received as S.C.No.105 of 1998 and subsequently, the case was made over to the trial court for disposal. Thus, when the accused appeared before the trial court after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offences punishable under Sections 498A and 306 I.P.C. and when the said charge was read over and explained to the accused, he pleaded not guilty. Therefore, the prosecution adduced its evidence consisting of the oral testimonies of Pws.1 to 16 and Ext.P1 to P5. MOs.1 to 5 were also identified and marked as material objects. Though there were no defence witnesses, the defence has got marked Exts.D1 to D8 as defence exhibits. When the prosecution evidence is over, the accused was questioned under CRL.A.NO.434 of 2003 :-3-: Section 313 of Cr.P.C. and he had denied the incriminating evidence and circumstances which emerged during the prosecution evidence and put to him. During the 313 examination, according to the accused, he did not demand anything as dowry and he purchased 5 cents of property in the name of the deceased for a sale consideration of Rs.50,000/- and out of that, Rs.20,000/- was obtained by selling 7 sovereigns of gold and he paid Rs.30,000/- from his savings. According to him, he had also obtained passport of the deceased and he had categorically stated that he was living with the deceased with peace and joy. According to him, after reaching at Gulf, he became ill and returned to his house and at that time, the deceased was along with her parents and on the same day of his arrival, he called the deceased to stay with him. But, the parents of the deceased did not permit her to reside with the accused. According to the accused, in the Police Station, she had agreed to reside with him and on the next day, she died mysteriously and her death was not due to any harassment. After considering the entire evidence and materials, CRL.A.NO.434 of 2003 :-4-: according to the Judge of the the trial court, in assessing the evidence in its cumulative effect, he has to find that the accused subjected the deceased to cruelty with a view to get more property as dowry and the accused complained that the dowry brought by her is very low and asked her to bring more dowry. Thus, according to the learned Judge of the trial court, the above unlawful demand of dowry or property drive the woman to commit suicide and thus, the accused has committed the offence punishable under Section 498A of I.P.C. It has been further found that the marriage was on 7.9.1997 and she committed suicide on 11.1.1998 within four months of the marriage and the cruelty and harassment drive her to commit suicide and the accused, by wilful act, abetted the commission of suicide and thus, the accused has committed the offence punishable under Section 306 of I.P.C. Accordingly, the accused is convicted for the offences under Sections 498A and 306 of I.P.C. On such conviction, the trial court has sentenced the accused to undergo rigorous imprisonment for a period of three years under Section 498A of I.P.C. and five years CRL.A.NO.434 of 2003 :-5-: under Section 306 of I.P.C. The accused is also directed to pay a compensation of Rs.3 lakhs under Section 357(3) of Cr.P.C. for the offence under Section 498A and 306 I.P.C. and further ordered that if compensation is realised, the same shall be disbursed to Pws.1 and 3. It is also directed that the sentence shall run concurrently. It is the above finding, order of conviction and sentence and the direction to pay compensation are challenged in this appeal. 4. I have heard Sri.R.Padmakumar, learned counsel appearing for the appellant and Smt.Lowsy, the learned Public Prosecutor for the State. 5. The specific case of the prosecution is that the marriage between the accused and the deceased Sangeetha was solemnised on 7.9.1997 in accordance with the Hindu religious rites and thereafter, they were residing together as man and wife during which the accused illtreated and harassed the deceased demanding more dowry and thereby, committed the offence punishable under Section 498A of I.P.C. and as a result of the continuous harassment demanding the CRL.A.NO.434 of 2003 :-6-: dowry, the deceased committed suicide on 11.1.1998 and thereby, the accused abetted the deceased to commit suicide and thus, the accused has committed the offence punishable under Section 306 of I.P.C. 6. As I indicated earlier, in order to substantiate the prosecution allegation, the prosecution has adduced the oral evidence of Pws.1 to 16 and the documentary evidence Exts.P1 to P15 documents and Mos.1 to 5. Among the above prosecution evidence, the prosecution mainly depends upon the evidence of Pws.1,2,3 and 13 to prove its case against the accused. PW1 is none other than the father of the deceased Sangeetha. PW1 deposed that his daughter Sangeetha committed suicide by consuming poison on 11.1.1998 and he had also deposed about the marriage between the accused and the deceased. According to him, at the time of marriage, the accused was working in Gulf countries and at the time of marriage, PW1 gave 35 sovereigns of gold and promised to pay Rs.2,00,000/- within two years and if the amount is not given within the stipulated time, he promised to give property for that amount. According to PW1, after the marriage, when CRL.A.NO.434 of 2003 :-7-: he visited the matrimonial house of his daughter, he was told by the deceased that the accused informed her that another girl offered Rs.10,00,000/- and a Maruthi Car and 101 sovereigns to the accused and the amount given from the house of the accused was very low and she was further asked why the property was not transferred in the name of the accused. According to PW1, due to this repeated demand, he transferred 25 cents as gift and 5 cents as sale deed to his daughter. According to PW1, after three months from the date of marriage, the accused went abroad and the deceased, at that time, visited her parental house and informed her parents about the harassment of the accused. PW1 has also stated that few days after his departure to Gulf, the accused called her through telephone and informed the deceased that he would arrive soon. According to PW1, the deceased thought that if the accused returned soon, he would destroy her mental peace because the accused illtreated the deceased demanding more dowry. PW1 says that demand for more dowry was informed to him on several occasions. PW1 is specific in his deposition that after CRL.A.NO.434 of 2003 :-8-: the arrival of the accused, he called the deceased to his house, but PW1 informed the accused that he will send her daughter on the next day provided the accused should come there with his relatives. But, the accused did not turn up with his relatives. According to PW1, on the next day, they filed Ext.P1 complaint in the Police Station based upon which the Sub Inspector of that Police Station questioned them and during that time, the deceased expressed her unwillingness to go with the accused. According to PW1, on the next day, his daughter consumed poison and she was taken to KLM Hospital from there she was brought to Medical Mission Hospital, Pandalam and thereafter, she was removed to Government Hospital, Adoor where she died. While PW1 was examined, Ext.P1 complaint and Ext.P2 F.I.statement were marked through him. 7. PW2 is a neighbour who deposed that there is a call from the accused to the deceased just prior to the incident. She had further stated that on 11.1.1998 morning, while PW3 was giving water to the cow, the deceased was found weeping from her house. After CRL.A.NO.434 of 2003 :-9-: sometime, PW3 returned to her house and at that time, she heard a cry from the house of PW3 and when she reached there at that time, the deceased was saying that she wants to die. According to PW2, after speaking with the accused over telephone, the deceased was found returning to her house by crying. PW2 has also stated that the deceased consumed poison due to mental depression. 8. Another important witness examined by the prosecution is the mother of the deceased, who is examined as PW3. When PW3 was examined, she had deposed in tune with the deposition of PW1. According to her, after the marriage, she had visited the matrimonial house of her daughter and her daughter also visited several times her parental home and at that time, the deceased informed her that the deceased was questioned and told that dowry given was very low and she was demanded more amount. Thus, according to PW3, the deceased was given 25 cents of property as gift. According to PW3, on the date of the execution of the gift deed, the accused informed his intention to divorce the deceased. According to PW3, the deceased CRL.A.NO.434 of 2003 :-10-: told her that the accused was complaining that the dowry was very low and demanding more dowry, the accused illtreated the deceased on several times. PW3, in her deposition, specifically stated that after the marriage, both the accused as well as the deceased went to Bombay and the deceased realised that the accused has illicit relationship with the wife of his elder brother and according to PW3, the deceased had to witness such illicit relationship of the accused and there is one child in that relationship. According to PW3, after the accused left for Gulf, the deceased was residing in the house of the accused, who occasionally visited the parental home. According to PW3, a few days before the incident, the accused called the deceased through telephone in the house of PW2 and informed that he would return there within two days. According to PW3, after attending the phone call, the deceased told her that it is impossible to reside with the accused. PW3 has also stated that on Sunday night, the accused and his mother reached in their house and invited the deceased. But, PW1 informed that they would send the deceased on 8.1.1998 after CRL.A.NO.434 of 2003 :-11-: mediation, but the accused did not turn up with the mediators on 9.1.1998. PW3 further states that on 10.1.1998, she went to the Police Station along with PW1 and the deceased and the Sub Inspector questioned the accused and the deceased and both of them were sent back to their respective houses. She has also stated that on 8.1.1998, while she was giving water to the cow, PW2 saw deceased weeping. According to PW3, when she reached, she found the deceased lying in a cot by saying she wants to die. According to her, the deceased was removed to the hospital, but at about 12 O' clock, in noon, her daughter died. PW3 has also identified Mos.1 to 5. According to PW3, her daughter/the deceased died due to harassment of the accused connected with demand for money as dowry. 9. PW4, who was then working as Deputy Director of Panchayat, deposed that she knows PW1, PW3, the deceased and the accused and on 9.1.1998, she went to the Nooranadu Police Station for discussing about the petition which was given by the deceased and she had discussed with the Sub Inspector. According to PW4, the CRL.A.NO.434 of 2003 :-12-: deceased was not interested in residing with the accused and if the deceased is sending with the accused, she requested for police protection. PW5 is an attestor to Ext.P3 scene mahazar whereas PW6 is an attestor to Ext.P4 seizure mahazar of the marriage register. PW7 was the Secretary of SNDP Sakha Yogam No.287 Ulavakkadu and he had taken back the registers from the Nooranadu Police for that he executed Ext.P5 kaicheet. PW8 was the Secretary of Karimukkom Temple, who issued Ext.P6 certificate. PW9 is the then Assistant Sub Inspector, Nooranadu Police Station. According to him, on 11.1.1998, PW1 arrived at the Police Station and informed about the death of PW1's daughter and he recorded Ext.P2 F.I.statement of PW1 on the basis of which he had registered Ext.P7 F.I.R. in Crime No.9/1998. 10. PW10 is the then Assistant Surgeon at CHC Adoor, who had examined the deceased Sangeetha, when she was brought in a stage of unconsciousness, not responding to painful stimulate. According to PW10, the deceased was admitted and treated for the poisoning and in spite of the emergency measures, she expired at 11.30 p.m. Ext.P8 CRL.A.NO.434 of 2003 :-13-: wound certificate dated 11.1.1998 is marked through PW10. PW11 is the Doctor, who was working as the then Associate Professor Forensic Medicine and Deputy Police Surgeon, Medical College, Alappuzha. According to him, he conducted post mortem examination on the body of Sangeetha, aged 20 years, the deceased in Crime No.9/98 of Nooranadu Police Station and Ext.P9, the postmortem certificate is proved through PW11. Besides Ext.P9, Ext.P10 certificate of Dr.Nelson was also marked through PW11. Ext.P10 is the final opinion dated 10.7.2002 issued by Dr.Nelson based upon the certificate of chemical analysis dated 5.7.2002 received by Dr.J.Nelson, who was working as the then Professor of FSL Medicine and Police Surgeon, MCH, Alleppey. According to Ext.P10, the death was due to carbo furan poisoning. It was PW12 who entrusted the body of the deceased after postmortem to the relatives. 11. PW13 is the another star witness of the prosecution to prove its case against the accused. PW13 was the then Sub Inspector of Police, Nooranadu. According to him, on 9.1.1998 at about 7.30 p.m. CRL.A.NO.434 of 2003 :-14-: PW1 brought Ext.P1 complaint and he entrusted the complaint for enquiry and called both parties to appear before him on 10.1.1998 at 11 a.m. According to him, the deceased came there with her parents and brother. PW4 was also present. According to PW13, he questioned the deceased first. According to PW13, at that time, the deceased informed him that the accused was harassing the deceased by saying that the dowry given to him was very low and also claimed to have been stated that the accused has illicit relation with the wife of his elder brother and in that relationship, there is one child and the accused was keeping a photo of the said child in his purse. According to PW13, thereafter, he called the accused and questioned him and PW13 persuaded the deceased to go and to reside with the accused. But, she responded that if she was sent with the accused, he would harass her both physically and mentally. According to PW13, when she refused to live with the accused/her husband, he directed the parties to appear on 17.1.1998 for a family counselling at the family counselling centre in the Police Station premises. Till that time, CRL.A.NO.434 of 2003 :-15-: PW13 directed both the parties to reside with their parents. During his examination, the accused had got marked Exts.D3 to D7 contradictions with respect to 161 statement of PW13. During his deposition, PW13 has admitted that Ext.P1 petition was received in the Police Station on 7.1.1998 and not on 9.1.1998. PW13 has also admitted that he was questioned by the Investigating Officer-PW16. 12. PW14 is the then Tahsildar of Chengannur Taluk through whom Ext.P11 carbon copy of the inquest report of PW14 was identified and marked. He had also admitted that MOs.1,2,3,4 and 5 were taken at the time of preparation of the inquest and thereafter, the body was sent for postmortem examination at Medical College Hospital, Alappuzha. PW15 has deposed that he attested the original of Ext.P11 which was prepared by PW14 and he had also identified the signature in Ext.P11 and MOs. 1 to 5 are taken at the time of inquest. 13. PW16 is the investigating officer who was then working as the Dy.S.P.Chengannur. He had stated that he undertook the CRL.A.NO.434 of 2003 :-16-: investigation on 13.1.1998 and he prepared Ext.P3 scene mahazar when he arrived at the place of occurrence at 9.30 p.m. on the very same date. According to him, he had questioned the witnesses and verified the register and prepared Ext.P4. Ext.P6 was produced before the court. He had obtained Ext.P1 petition and produced before the court. Ext.P12 was proved through PW16 connected with the release of marriage register on moonamstanam. He had deposed that the original inquest report prepared by PW14 has been lost. He had produced MOs. 1 to 5 as per Ext.P15 report. When PW16 was examined, the defence has got admission from PW16 that PW13 during his 161 statement has deposed as Exts.D3 to D7. It is the above materials and evidence formed the basis of the finding of the learned Judge of the trial court and convicting the accused. Those findings, conviction and sentence are challenged in this appeal. 14. Sri.R.Padmakumar, learned counsel appearing for the appellant vehemently submitted that the findings, conviction and the sentence imposed against the appellant are unsustainable and are CRL.A.NO.434 of 2003 :-17-: liable to be set aside and the accused is entitled to get an acquittal. In support of the above contention, it is pointed out by the learned counsel that the evidence and materials on record are not sufficient to establish or attract the essential ingredients of Sections 498A and 306 of I.P.C. Learned counsel pointed out that the prosecution has no specific case regarding any overt act from the part of the accused by which the deceased was subjected to harassment. It is the further submission of the learned counsel that till the accused went abroad after the marriage, the deceased and the accused were residing happily and without any complaint and according to the learned counsel, the facts and circumstances involved in the case supported by the evidence of the prosecution witnesses itself would show the fact that there was no harassment or ill-treatment from the part of the accused. It is specifically pointed out by the learned counsel that Ext.P1 is the earliest document reached in the Police Station against the accused wherein there is no allegation that the accused has demanded more dowry or he was unsatisfied with the dowry already given. In Ext.P1, CRL.A.NO.434 of 2003 :-18-: the only allegation is that whatever gold given to the deceased was misused. But, when PWs.1 and 3 were examined, they deposed against the contents of Ext.P1 and entirely a different case is set up when Ext.P2 F.I.statement is given by PW1. The learned counsel strenuously submitted that the state of mind of the deceased before her death is crystal clear from the 161 statement of PW13, though PW13, who is a responsible officer, denied the same. Inviting my attention to Exts.D3 to D7, the learned counsel submitted that in the 161 statement of PW13, the deceased has no complaint against the accused and she was prepared to go with the accused. Learned counsel has also pointed out that PW1 in his deposition has admitted that the accused has obtained passport for the deceased and the marriage between the deceased as well as the accused was not an arranged on, but it was a love marriage. It is also pointed out by the learned counsel that in the deposition of PW3, she has stated that when the accused left for Gulf countries, PW1,PW3 and the mother of the accused have gone to the air port to see off the accused and thereafter, the deceased was CRL.A.NO.434 of 2003 :-19-: residing in her matrimonial home. On the basis of the above materials and evidence, it is the specific contention of the learned counsel that there was no harassment or ill-treatment from the accused and there was no demand for more dowry as alleged by the prosecution. Thus, according to the learned counsel, in the absence of any specific allegation regarding any overt act or assault or in the absence of any positive evidence that the accused abetted the deceased to commit suicide, neither Section 498 A nor Section 306 of I.P.C . are attracted and as such, the prosecution has miserably failed to establish the case against the accused. Thus, according to the learned counsel, the finding of the learned Judge of the trial court is absolutely incorrect and baseless and against the settled principles of law governing the field. Thus, according to the learned counsel, the accused is entitled to get a clear acquittal. In support of the above contention, learned counsel very much place reliance upon the following decisions:- Taruna v. State of West Bengal [2001 Crl.L.J.4937 (SC)] CRL.A.NO.434 of 2003 :-20-: Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618] State of H.P. v. Nikku Ram [AIR 1996 SC 67] Rajan v. State of Kerala [1994(1) KLT 179] State of A.P. v. M.Madhusudhan Rao [(2008) 15 SCC 582] Bhaskar Lal Sharma v. Monica [(2009) 10 SCC 604] Manju Ram Kalita v. State of Assam [(2009) 13 SCC 330] 15. On the other hand, stoutly opposing the contention raised by the learned counsel for the appellant, the learned Public Prosecutor submitted that the evidence adduced by prosecution particularly the depositions of PWs.1,2,3,4 and 13 would categorically prove that the accused had subjected the deceased to cruelty both mentally and physically demanding more dowry from the deceased and from her parents. The learned Public Prosecutor has pointed out that though the marriage was on 7.9.1997 and before the departure of the accused for Gulf on 15.12.1997, 25 cents of property was given to the deceased as gift and another 5 cents as per sale deed. The above facts and circumstances are sufficient to show that PWs. 1 and 3 are constrained to transfer the property in the name of their daughter because of the illegal demand of the accused within a short span of CRL.A.NO.434 of 2003 :-21-: time from the date of marriage. The learned Public Prosecutor has pointed out that the evidence of PW2,PW4 and PW13 who are the independent witnesses would show that the deceased was not in a pleasant mood after the phone call