IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 CRL.A.No. 1426 of 2003() ------------------------ SC.291/1998 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM .................... APPELLANT(S): ACCUSED NO.1 --------------------------------------------------- SAIFUDEEN, S/O.MUHAMMED ABDUL KHADER, EDAVILAKATHU VEEDU, KURAKKOODU, EDAVILAKOM MURI, VEILOOR VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.ANIL K.NAIR RESPONDENT(S): COMPLAINANT ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MANGALAPURAM POLICE STATION, THIRUVANANTHAPURAM DISTRICT. REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. = = = = = = = = = = = = = = = = = = = = Crl. Appeal No. 1426 of 2003 = = = = = = = = = = = = = = = = = = = = Dated this the 16 th day of October, 2009. JUDGMENT The 1st accused in S.C. No. 291 of 1998 on the file of the Additional Sessions Court, Fast Track – I, Thiruvananthapuram, challenges the conviction entered and the sentence passed against him for an offence punishable under Section 304 (B) IPC. 2. The case of the prosecution can be summarised as follows:- A1 (Saifudeen) who is the brother of A2 (Shyla Beevi) and son of A3 (Salma Beevi) married deceased Jaseera Beevi, the daughter of CW1 (Ibrahim Kunju) on 08.09.1996 as per the Muslim customary rites at Meera Sahib Hall situated near the A.R.P Camp, Pallipuram. After the marriage, Jaseera Beevi was residing in her matrimonial home by name Kurakkode Edavilakathu House situated in Crl. Appeal No. 1426/2003 : 2 : Edavilakom Muri of Veiloor village. Besides A1, his sister A2 and mother A3 were also residing in the said house. While so, A2 and A3 used to continuously subject deceased Jaseera Beevi to cruelty stating that the gold ornaments given to her at the time of her marriage by CW1 were old and of low quality and that they did not weigh 15 sovereigns. Similarly, A1 subjected Jaseera Beevi to cruelty both physically and mentally demanding her to sell the 15 cents of property which was given to her at the time of her marriage by her father CW1 and to make available to him the sale proceeds. Asking her to sell the said property and bring him the sale proceeds, A1 at the instigation of A2 and A3 took his wife Jaseera Beevi to her house and left her there. CW1, the father of Jaseera Beevi thereupon promised to pay A1 Rs.1,50,000/- and agreeing to the same, A1 took his wife back to the matrimonial home. During the subsequent period also, Jaseera Beevi was constantly harassed by saying that the sum of Rs.1,50,000/- was not Crl. Appeal No. 1426/2003 : 3 : sufficient and she should bring a sum of Rs.3,00,000/- from her father. A2 and A3 made her life miserable with A1. On 28.11.1996 at 11 a.m., Jaseera Beevi while proceeding to her house was assaulted by A1 from the vicinity of Karichara bridge. On account of the mental anguish and extreme despair due to the feeling that she would not have any more peaceful marital life, at about 11 noon, on 28.11.1996, at Cherukayalkara in Edavilakom Muri of Veiloor village Jaseera Beevi committed suicide by jumping in front of an ITD goods train from Irumpanam to Thirunelveli which came from north to south along the Thiruvananthapuram – Kollam railway line. The accused have thereby committed the offence of dowry death punishable under Section 304 B r/w Section 34 IPC. 3. On the accused pleading not guilty to the charge framed against them by the court below, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 11 witnesses as P.Ws Crl. Appeal No. 1426/2003 : 4 : 1 to 11 and got marked 6 documents as Exts. P 1to P6 and 5 material objects as Mos 1 to 5. 4. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. 5. The 1st accused made the following submissions before court:- After the marriage between himself and Jaseera Beevi, they were residing in his house. Their post-marital life was very cordial and loving. There was absolutely no sort of difference of opinion or problem between them. On 28.11.1996, he had gone to Kazhakuttom after bidding leave to his wife. When he returned to the shop, Jaseera Beevi expressed a desire to go home. He did not permit her to go and instead, asked her to go to the shop at Kazhakuttom for Crl. Appeal No. 1426/2003 : 5 : doing certain work in the shop. Thereafter, it was while he was returning with certain articles from the shop that he came to know that Jaseera Beevi was dead due to train accident. He went to the place of occurrence. He had participated in the funeral also. The parents of Jaseera Beevi had demanded her gold ornaments. They were returned to them through the Mangalapuram Police as insisted by him and a receipt was also obtained. Thereafter, the present case was foisted against him, his sister and mother alleging that the gold ornaments were not returned. 6. The accused did not adduce any defence evidence when called upon to enter on their defence. 7. The learned Additional Sessions Judge, after trial, as per judgment dated 29.07.2003 acquitted A2 and A3 of the offence charged against them, but convicted the appellant/1st accused of the offence punishable under Section 304 (B) IPC. For the said conviction, the appellant Crl. Appeal No. 1426/2003 : 6 : was sentenced to rigorous imprisonment for 7 years. Set off under Section 428 Cr.P.C was given to him. It is the said judgment which is assailed in this appeal. 8. I heard the learned counsel for the appellant and the learned Public Prosecutor. 9. PW1 (Arifa Beevi) is the elder sister of deceased Jaseera Beevi. Her evidence is to the following effect:- She is residing near the C.R.P camp, Pallipuram. She is employed as the senior technician in the Thermo Pen Board at Puliyarakonam. Jaseera Beevi was her younger sister. Her father and mother and A1 are the persons residing in her ancestral house. The marriage of Jaseera Beevi was on 08.09.1996 at Meera Sahib hall near C.R.P camp at Pallipuram. For the marriage 15 cents of land, gold ornaments worth 15 sovereigns, cash worth Rs.20,000/- and a gold ring were given. It was an arranged marriage. After the marriage, A1 and Jaseera Beevi started residing in the house of A1 at Edavilakom. The parents of A1 and A2 (Shyla Beevi - who is the 4th Crl. Appeal No. 1426/2003 : 7 : sister of A1) were residing in that house. A3 is the mother of A1. Two weeks after the marriage, PW1 and her sister- in-law had called Jaseera Beevi for a get-together. A1 and Jaseera Beevi visited them after one month of the marriage. At that time, a gold ring weighing 3/4 of a sovereign was presented to her sister. At the time of marriage, PW1 had given her sister a gold ring weighing 3/4 sovereign. Jaseera's father-in-law was treating her very affectionately. She also loved her father-in-law very much. But A2 and A3 used to physically and mentally harass Jaseera saying that the gold ornaments given to Jaseera were not weighing 15 sovereigns and that they were of poor quality. She told PW1 that her husband (A1) was not loving her and was always beating her and he was always sleeping at home without going for a job and she was finding it difficult to stay there. PW1 advised her that after all it was her matrimonial home and the attitude would change and she will have to put up with those difficulties. PW1 is residing separately. When PW1 paid a visit to her ancestral house Jaseera Beevi was there and Crl. Appeal No. 1426/2003 : 8 : she told PW1 that A1 had left her there on the 11th. The reason for leaving her there was that A1 wanted to purchase 40 cents of land belonging to his sister Sabeena Beevi and to enable the said wish of A1 to materialise the 15 cents given to Jaseera Beevi was to be immediately sold and the sale proceeds to be handed over to him. After about 10 or 12 days, PW2 had a talk with the father of A1 and had agreed to give Rs. 1,50,000/- after disposing of the property. On the basis of the said offer made by PW2, A1 took Jaseera Beevi back to the matrimonial home. About 2 or 3 days thereafter, PW2 had been to the house of PW1 and he told her that Jaseera has still problem in her matrimonial home and that they were asking for Rs.3 lakhs for purchasing the property of Sabeena. One day, that is on 28.11.1996 at about 6 p.m., while PW1 was returning home from her work place she came to know that her sister Jaseera was dead. She believes that her sister died due to the constant persecution by her husband, mother-in-law and sister (A1 to A3). It was a dowry harassment. Manichi (PW3) was PW1's classmate. Crl. Appeal No. 1426/2003 : 9 : PW3 had told her that when PW3 had gone to take bath, she had met Jaserra Beevi and they exchanged pleasantries and thereafter, A1 who was sitting near the bridge beat Jaseera Beevi and had given her a push and A1 was dissuaded from further assaulting Jaseera Beevi by Muhammadali (PW4) and Jaseera Beevi had taken leave of Manichi. PW1 had given a statement to the police. It was unable to bear with the cruelty in the house of A1 that her sister ended her life by jumping in front of a train. MO1 series are the gold bangles of Jaseera Beevi. MO2 is the gold chain and MO3 is the gold ring, MO4 is the matty and MO5 series are the pair of ear studs of her sister. At the time of Jaseera Beevi's marriage A2 was taking rest after child's birth. It was 15 days after the marriage of Jaseera Beevi that PW1 and her sister in law went there. She has not gone there thereafter. When they went there A2 and A3 were there. They did not demand anything from her either during the said occasion or any time thereafter. She has seen them ill-treating her sister in her presence. On the day on which A1 and Jaseera Beevi had Crl. Appeal No. 1426/2003 : 10 : paid a visit to PW1's house A1 had beat Jaseera Beevi on her back and had dragged her. The reason for the said beating was on the ground that she had come late. PW1 did not tell this to the Police. She had told her parents about the dowry issue of her sister and that Jaseera Beevi was being ill-treated for not selling the property. A1 had been to the ancestral home of PW1 along with Jaseera Beevi thrice. She had heard that after going there, one week after their marriage, A1 had left Jaseera Bevi in her house on 11.11.1996. The reason for leaving Jaseera Beevi in her house was for selling 15 cents of land and making the sale proceeds available to him. This information was conveyed to her by Jaseera Beevi on the 15th. Jaseera Beevi was given 15 cents of land by way of gift deed executed by her father prior to her marriage. That document is in her house and it can be produced. It is not correct to say that not even a cent of land was given to Jaseera Beevi. MOs.1 to 5 were the ornaments which Jaseera Beevi was always wearing. After the death of Jaseera Beevi, the other ornaments kept in her table were Crl. Appeal No. 1426/2003 : 11 : handed over to PW1's father by the Police on the strength of a receipt. It was PW2 who had told her that Rs.1,50,000/- was not enough and they wanted Rs.3 lakhs. Her sister had told her that A1 used to physically assault her. She had not told this to the Police. But she is not lying before court. Jaseera Beevi had told her about the physical assault made by A1. PW3 Manichi is her friend. One has to cross the Kaniyapuram and Murikkumpuzha road and the railway line for going to the ancestral home of PW1 from the house of A1. There is a pathway leading to the railway line and it is after crossing the railway line that they go to their ancestral home. There are walls on the either side of the pathway. One can go through that way also. It is possible to go beneath the bridge as well. It is not correct to say that Jaseera Bevi died accidentally while crossing the railway line. It is not correct to say that her sister did not suffer any ill-treatment or harassment from the accused persons and that they were all living peacefully. One she heard was that the accused used to sit in the shop belonging to his father. After the marriage he Crl. Appeal No. 1426/2003 : 12 : was not in the habit of going to the shop and is sleeping as if he were under the influence of drugs. Jaseera Beevi had told her that she was sad, because her husband was not going to work and there was no property of his own. 10. PW2 (Basheer) is a driver by avocation. He had married the elder sister of Jaseera Beevi. He also spoke about the marriage of Jaseera Beevi and the dowry given to A1 at the time of her marriage. The relevant portion of his evidence reads as follows:- A1's father was having a grocery shop. After the marriage of Jaseera Beevi, PW2 had gone to A1's house to invite them for a get together. A1 was not in his house. A1 was invited from his shop. They did not respond to the invitation saying that they do not have time. He used to go to the ancestral home of Jaseera Beevi. 15 cents of land was carved out and given. He was also involved in getting the documents prepared. CW1 the father of Jaseera Beevi had told him that A1 had left Jaseera in her ancestral home. When PW2 asked him the reason, CW1 told him Crl. Appeal No. 1426/2003 : 13 : that A1 had asked him to sell the 15 cents of land and give him the sale proceeds. PW2 had mediated in the matter as was authorized. He had gone to A1's shop. At that time A1 was not there but his father was available in the shop. After some time A1 also came there. They had talked for some time and after which the agreement was that if a sum of Rs,1,50,000/- was given, they would execute a deed in his favour for 15 cents. He agreed to pay the money within one month and told CW1 about it. The other sisters of A1's wife were also informed. After about 3 to 4 days when he had been to the shop of A1's father he came to know that Jaseera Beevi was taken back. About 4 to 5 days thereafter A1's father had called him and told that it was not possible to purchase the property of Sabeena for Rs.1,50,000/- and that they wanted 3 lakhs. PW2 told him that it was not possible for him to agree to this demand. Then A1's father told him that if the money was not paid, A1 would leave Jaseera in her ancestral home and that almost every day there were quarrels between A1 and Jaseera on account of this issue. PW2 offered to sell the Crl. Appeal No. 1426/2003 : 14 : property to anybody else. PW2 informed the matter to Jaseera's father. When he came to know of the death of Jaseera he was aware that it was due to the constant harassment by A1 and his family members. He had given a statement to Police. The fact that Jaseera Beevi was treated with cruelty was once told by PW1 when the latter had gone to his house. She had also told him that A1 had beaten Jaseera when they had paide a visit to PW1's house. The distance between the house of A1 and A1's shop was about 100 meters. He had been to the shop of A1's father 2 or 3 times. That was in connection with the mediation talk. Besides his father, A1 was also insisting that the property was to be sold and the sale proceeds made available to him. The document in favour of Jaseera Beevi is with CW1 who might have shown it to the Police. 11. PW3 (Manichi) is a resident of Sree Pathanam colony. She was having a grocery shop. She knew both Jaseera Beevi as well as PW1. The last time she saw Jaseera Beevi was on 28.11.1996 at a time when she had Crl. Appeal No. 1426/2003 : 15 : come to take bath in the Cheruvakkal thodu. The time was about 11 a.m. She had seen Jaseera Beevi coming from Kurakkoot area. Both of them had pleasantries Jaseera told her that she was coming from her matrimonial home. Thereafter Jaseera Beevi went towards the bridge [Eventhough this witness was cited to prove that from the vicinity of bridge A1 had beaten Jaseera Beevi, she did not support this part of the prosecution This witness was treated as hostile to the prosecution and was cross-examined by the Public Prosecutor.] What Jaseera Beevi told her was about her problems in the matrimonial home and that her husband was compelling her to sell her property and almost every day there used to be quarrels. PW3 deposed that it was on 28.11.1996 when she met Jaseera Beevi that she came to know that Jaseera was married. Cheruvarakkal Thodu and Kalluvarambal Thodu are one and the same. On that day Jaseera was wearing black churidar with a shawl. 12. PW4 (Mohammedali) is running a pan shop at a Crl. Appeal No. 1426/2003 : 16 : place called Karichara. He knows deceased Jaseera Beevi. He had attended her marriage. She died on 28.11.1996. On that day he was proceeding on his bicycle to Murikkumpuzha for purchasing commodities. He had seen Jaseera Beevi near the bridge. She was accompanied by her husband (A1) and both were engaged in a quarrel. He intervened in their scuffle and separated them. At that time PW3 (Manichi) was taking bath in the Cheruvikkal/ Kalluvarambil thodu. He went to Murikkumpuzha and returned back at about 1 p.m. By that time news was spread that a lady had been run over by the train. When he went there he found that it was Jaseera Beevi. He had attended her funeral. He told to Jaseera's father about what he saw. The reason for her death could be the discord between Jaseera Beevi and her husband. Jaseera Beevi was found near the Varambha of the thodu below the bridge. He was proceeding from south to north towards Murikkumpuzha. The bridge is also running north-south. Crl. Appeal No. 1426/2003 : 17 : On either side of the bridge there are thodus. On can enter the railway line by proceeding along the ridge (varamba). It is called Cheruvarakkal thodu. There are bathing-ghats at several points. The height difference between thodu and the bridge would be about the height of two persons. There is a hand rail on the either side of the bridge. He did not go near the quarrelling spouses on 28.11.1996. He put his cycle on the stand. A1 was wearing a shirt and mundu and Jaseera Beevi was wearing saree and blouse. He is not able to clearly remember the dress worn by A1 and Jaseera Beevi. 13. PW5(Aysha Beevi) is the mother of the deceased. She was aged 70 years while giving evidence in the year 2003. The main part of her testimony is as follows: She is residing at Karichara. Deceased Jaseera Beevi was her youngest daughter. Jaseera Beevi was given in marriage to A1 who is the son of A3(Salma Beevi). At the Crl. Appeal No. 1426/2003 : 18 : time of marriage 15 sovereign of gold ornaments, 15 cents of land and cash worth Rs.20,000/- were given as dowry. The marriage was on 8.9.1996. After the marriage she was residing with the accused. About one or two weeks prior to her death, A1 had left her in the house of PW5. Her daughter told her that the reason for her husband leaving her there was on the allegation that the gold ornaments were of poor quality and they did not get 15 cents of land given to her sold and sale proceeds given to him. It was after the intervention of PW2 (Basheer) that she was taken back on the promise that the property would be sold within one month and the sale proceeds would be given. The death of Jaseera Beevi is on the eighth day after she was taken back. She had jumped in front of a running train and committed suicide. It was unable to bear with the ill- treatment given by A1 to A3 with regard to the gold ornaments given to Jaseera Beevi that she committed suicide. Nobody was entrusted for mediating the matter Crl. Appeal No. 1426/2003 : 19 : but her nephew (PW2) had intervened and promised to pay the money after selling the property. The demand was for Rs.3 lakhs. She is not giving false evidence at the instigation of PW2(Basheer). 14. PW6(Vijayan) hailing from Veiloor is the eye- witness to Jaseera Beevi jumping in front of a running train and committing suicide. The main part of his testimony is as follows:- He resides at Varikkumukku. He knows Jaseera Beevi. He along with one Shukkur, Salim, Sasi(PW7) etc. were engaged in a chat at Cheruvakkara. While so, he proceeded towards the railway track for passing urine. At that time he saw Jaseera Beevi walking near the railway track. This took place about 5 or 6 years ago. He does not remember the date. A goods train came from Trivandrum side. When the train reached closer, Jaseera Beevi jumped in front of the train. Then he called his friends and showed it. She was wearing a black churidar and yellow shawl. She was Crl. Appeal No. 1426/2003 : 20 : wearing ornaments. The time was about 12 noon. It was the railway track at Cherukayalkara. It is a hilly area at that spot. The railway track is at the foot of the hill. The height would be about that of two persons. The matter was informed to Jaseera Beevi's relatives through telephone. Basheer (PW2) is his neighbour. Jaseera Beevi was wearing a black churidar and top with an yellow shawl. PW6 and others were standing about 10 or 35 meters away from the pathway which proceeds westwards from the Cherukayalkara bus stop. There is compound wall on either side of the said pathway. The railway line has a curve at that spot. 15. PW7 (Sasi) is a resident of Varikkumukku at Murikkumpuzha. He is an attestor to Ext.P2 Inquest report prepared by the Tahsildar, Thiruvananthapuram. He was in the company of PW6 when the occurrence took place. 16. PW8 (Dr.R.Meera Nair) who was a lecturer in Forensic Medicine, Medical College, Thiruvananthapuram Crl. Appeal No. 1426/2003 : 21 : conducted the autopsy of the dead body of Jaseera Beevi on 29.11.1996. Ext.P3 is the post mortem certificate prepared by PW8. Ext.P3 shows that the body of Jaseera Beevi was brought