IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 CRL.A.No. 363 of 2005 ----------------------- SC.125/2003 of ADDL. SESSIONS COURT (ADHOC),FAST TRACK COURT NO.I, THRISSUR .................... APPELLANT/: COMPLAINANT: -------------------------- STATE OF KERALA, REP. BY THE DEPUTY SUPERINTENDENT OF POLICE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.129/02 OF IRINJALAKUDA POLICE STATION) BY PUBLIC PROSECUTOR MR. JAI GEORGE RESPONDENT/: ACCUSED: ----------------------- SANTHOSH, S/O. CHEMBIPARAMBIL, PULLANI VEETIL SANKARAN, KUZHIKATUKONAM. ADV. SRI.K.G.ANIL BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ === = = ========================== CRL.A.NO. 363 OF 2005 ============================ DATED THIS THE 13th DAY OF NOVEMBER, 2008 JUDGMENT Balakrishnan Nair,J. The State has come up in appeal challenging the judgment of the III Additional Sessions Court(Ad hoc)Fast Track Court No.I, Thrissur in S.C.No.125/2003. The accused in that case was charge sheeted for the offences punishable under Sections 498 A, 201, 302 and 436 of the Indian Penal Code. The accused was found not guilty and acquitted of all the charges. Hence, this appeal by the State. 2. The prosecution case in brief is as follows: The accused and the deceased were husband and wife. Apparently for the reason that she was the sister of the brother’s wife of the accused, the family members of the accused were against their marriage. So, they got married in the Sub Registrar’s Office and thereafter they were residing together as husband and wife in a thatched house. The accused was harbouring doubts regarding his wife's chastity. He used to take liquor and CRL.A.363/05 - 2 - thereafter subject her to physical and mental torture. The accused assaulted her on the date of incident on 4-3-2002. When she fell unconscious, the accused poured kerosene and set fire on her body to kill her. For causing the evidence to disappear, he set fire to the building itself, in which she was lying unconsciously. She died of burn injuries and thereby the accused committed the offences under Sections 498A, 201, 302 and 436 of the Indian Penal Code. 3. PW1, the brother of the deceased Shyamala, who was residing in the neighbourhood of her, saw the house of Shyamala engulfed by fire and he rushed to that house. One of the doors of that house was seen tied using coir. He broke open the door and entered the room. He found that the body of Shyamala was burning. He also saw the accused going out of that room through another door. Soon what remained was only the charred body of Shyamala. He filed Ext.P1 F.I. Statement on the night of 4-3-2002 itself at Irinjalakuda Police Station. PW18 recorded the F.I.Statement and registered Ext.P9 F.I.R. CRL.A.363/05 - 3 - Since the death of a lady was involved, the investigation of the case was taken over by the Deputy Superintendent of Police, Irinjalakuda (PW15). The successor in office, PW16, completed the investigation and laid the charge before the Judicial First Class Magistrate’s Court, Irinjalakuda. The learned Magistrate committed the case for trial to the Sessions Court, Thrissur, which in turn was made over to the Fast Track Court No.I, Thrissur. The accused pleaded not guilty to the charges framed against him. From the side of the prosecution, PWs.1 to 19 were examined and Exts.P1 to P10 were marked. Material objects, MO.1 to MO.12 were also marked. The learned Additional Sessions Judge, after hearing both sides, acquitted the accused of all the charges, holding that the prosecution has failed to prove its case. 4. The State in this appeal challenges the findings of the learned Sessions Judge. According to the learned Public Prosecutor, when PW1 went to the house of the accused, it was found that the door through which he tried to enter the building CRL.A.363/05 - 4 - was tied using coir. Immediately on opening the door, it was found that the body of Shyamala, his sister, was engulfed by fire. A portion of the building was already burnt and the roof of the room in which she was lying has only just started falling down. The same would prove that Shyamala’s body caught fire not from the fire in the building but her body was set on fire by somebody. The postmortem report would show that there was smell of kerosene on the body. So, it is evident that somebody poured kerosene on her body and set fire to her. It is also pointed out that when PW1 entered the room, he found the accused going out of it. If it was a case of suicide, the husband would have definitely tried to save his wife, but without doing anything he was going out. PW7 has also stated that the accused was going out of the house. So, the above conduct of the accused would point an accusing finger against him. He was carrying a tapper’s knife in his hand. The same would support the prosecution case that on the day of the incident, he inflicted injuries on his wife, as a result of which she CRL.A.363/05 - 5 - fell unconscious. So, the learned Public Prosecutor pointed out that the circumstances proved in this case are sufficient to find the accused guilty under Section 302 I.P.C. At any rate, it is contended that the acquittal of the accused for the offence under Section 498A is unjustified. PWs.1,3,4,5,6,7,8 and 9 have spoken to about the conduct of the accused towards his wife that he was doubting her chastity. That will amount to mental cruelty. Further, there was physical harassment and manhandling whenever he took liquor. So, there was sufficient materials on record to enter a finding against the accused under Section 498A. But he was acquitted of that offence holding that there was no legal marriage between the accused and Shyamala. The learned Sessions Judge took the view that there was only a registered agreement to live together and, therefore, there was no valid marriage. In the absence of proof of a valid marriage, it was held that the offence under Section 498A will not lie. 5. The learned Public Prosecutor pointed out that the CRL.A.363/05 - 6 - said finding is erroneous in the light of the decision of the Apex Court directly on the point rendered in Reema Aggarwal v. Anupam, 2004(2)K.L.T.822. Special reference was made to paragraphs 11 and 18 of that decision. 6. The learned counsel for the respondent/accused submitted that there is not an iota of evidence to connect the accused with the crime. Shyamala was found engulfed by fire by PW1. There was smell of kerosene also. But the possibility of pouring kerosene, setting fire to herself and thereby committing suicide cannot be ruled out. Admittedly, the accused was found crying and he embraced PW1 and stated that he is not responsible for the death of his wife. The above conduct of the accused will show that he is innocent. In the absence of legal evidence, no conviction under Section 302 I.P.C. can be entered. In this case, the trial court has taken a view that the evidence is not sufficient to sustain a conviction under Section 302 I.P.C. The said view taken by the trial court is a plausible view, warranting no interference by the appellate CRL.A.363/05 - 7 - court. The learned counsel also submitted that there is no reliable evidence to enter a finding that the accused was cruel in his dealings with his wife. The witnesses to the prosecution have deposed that when he was not under the influence of drinks, he was a very affectionate husband. They have also stated that Shyamala was very affectionate to her husband. 7. Before dealing with the rival contentions, we will refer to the relevant portions of the evidence of the prosecution witnesses. 8. PW1 is the brother of the deceased Shyamala. He has deposed as follows: On the night of 4-3-2002, he reached home by 7’O clock. At about 8.30 p.m., he heard a cry from the southern side of his house. Since it was heard from the side of the house of Shyamala, his sister, he ran to her house taking a torch and a stick. He found that the house of Shyamala was burning. It was a thatched house. When he reached there, he found Rajitha and Madhu standing there. Rajitha told him that Shyamala was inside the burning house. It has doors on the CRL.A.363/05 - 8 - northern and eastern sides. He tried to open the door on the eastern side. It was tied from outside using coir. He opened the door by using force. He found Shyamala lying on the floor dead. She was completely burnt by fire. He saw the accused going out of that room through the door on the northern side. Later, he came to the eastern side. The witness took water that was kept in a bucket and poured on the body. When water was poured, the fire suddenly blazed. Soon burned portions of cadjan leaves started falling down. The roof itself came down. The witness stood there and cried. Somebody came and took him to the nearby house. The accused embraced him and cried. The accused said he did not do anything and he did not know anything. The fire was put out by the Fire Force. On the same day, he filed Ext.P1 F.I.statement, based on which the police registered the crime. The witness said that the accused used to drink liquor and quarrel thereafter with his wife. At the time of marriage, Shyamala was given Rs.10,000/- and six sovereigns of gold. The accused used to harass Shyamala CRL.A.363/05 - 9 - demanding to bring furnitures like Almirah etc. Shyamala would not commit suicide. The accused did not try to put out the fire. He was extensively cross examined by the defence counsel but his deposition remained unscathed. 9. PW2 is the witness to Ext.P2 inquest report. PW3 is the elder brother of Shyamala. He was opposed to the marriage between the accused and Shyamala. But after marriage, it was PW3 who supported them. He has deposed that the marriage was registered in 1995. He came to the place of occurrence after the incident was over. He has deposed that the accused used to quarrel with Shyamala after taking liquor. He used to take liquor at noon and night. He used to harass Shyamala asking her to bring more dowry. He has stated that Shyamala would not commit suicide. He was also cross examined by the defence. But nothing was brought out to discredit his version. 10. PW4 is residing in the neighbourhood for the last two years. She knew Shyamala and her husband since then. She has gone for work along with Shyamala. She has deposed that CRL.A.363/05 - 10 - the accused used to quarrel with Shyamala after taking drinks. Almost on all days, there was hue and cry from Shyamala’s house. Therefore, she did not care about such incident. On the date of death of Shyamala, at about 8.30 p.m., the witness heard the accused crying, calling out “Shyamala”. When the witness came out, she found that the house of Shyamala was burning. She did not attempt to put out the fire. Fire Force came and put out the fire. She saw Shyamala lying dead. In cross examination, she has stated that only when the accused came home after taking drinks, there was quarrel; otherwise they were an affectionate couple. She has also stated in cross examination that the accused used to state that he would set fire to the house. 11. PW5 is residing on the eastern side of the house of Shyamala and the accused. He has stated that the accused came to the temple ground, where the witness and others were sitting. The accused came there after taking liquor. Thereafter, again the accused joined others for drinking half CRL.A.363/05 - 11 - bottle of liquor. The accused said that he is feeling pain in his chest. So, the witness went to call a vehicle to take him to the hospital. But by the time the witness came back, the accused went to his house. The witness also went there. Thereupon he was told by the accused that his wife is unchaste. When he came from Palakkad after his work, he found his wife sleeping with another man. The accused told the witness that vehicle is not necessary and told him to go back. So, the witness and the driver of the vehicle Ratheesh returned. On reaching the temple ground, cries were heard. When they went there(from where cries were heard), it was found that the house of the accused was burning. He was also cross examined by the defence. In his cross examination, he has stated that the accused was found crying lying on the floor. He was lying on the northern side of the burnt house. 12. PW6 is the sister-in-law of Shyamala. She was residing very near to the house of the accused. She stated that when the accused was under the influence of liquor, he CRL.A.363/05 - 12 - used to start quarrelling. He was using abusive words. If he was not drunk, he would be very happy. On the date of death of Shyamala, she had seen the accused. She came to know that the house was burnt at about 8.45 p.m. By 9’O clock she went to the place of incident. She saw the accused there. She did not ask the accused anything. The accused was sitting there and crying. When he was under the influence of liquor, he did not know what he would say. He was always doubting Shyamala. Shyamala had great affection for the accused. PW6 was also cross examined by the defence. About two years back Shyamala was brutally manhandled and she was admitted in Irinjalakuda Government Hospital. She was in the hospital for two days. But she did not tell the Doctor that it was her husband who beat her and inflicted the injuries. She did not complain before the police. The register marriage of the accused and Shyamala took place about eight years back in 1995. The husband of the witness paid Shyamala Rs.15,000/- in the same year. CRL.A.363/05 - 13 - 13. PW7 is the wife of PW5. She knew the accused and Shyamala for the last 6-7 years. They were staying together on the western side of her house. While she was feeding her children, she heard the accused calling out the name of Shyamala. She came out from the house and saw a great light. The fire was blazing. She took a torch and went to the place of incident along with her children. When she went there, she saw the accused running from the side of the kitchen. He was crying, calling out Shyamala. PW1 came running. He was also crying. He tried to open the door of the eastern side. When it was opened, the door fell inside. People came running . By that time, the house burnt down. She saw the body of Shyamala lying burnt. When the accused came home after taking liquor, there used to be quarrels between the accused and Shyamala. 14. PW8 is the brother of Shyamala. He stated that nine years were over after the marriage of Shyamala and the accused. As dowry they were given Rs.15,000/- and also six CRL.A.363/05 - 14 - sovereigns of gold ornaments. Using that money and gold they purchased five cents of land. The accused used to drink liquor. He was always doubting the chastity of Shyamala. After taking liquor, he used to manhandle Shyamala and she used to tell him (PW8) about these things. There was a quarrel between the couple sometime back. It was about two years back. The accused wanted more dowry. The quarrel was on the ground of insufficiency of dowry. Sometime back, because of the quarrel, Shyamala came to her house. Later, the matter was settled and Shyamala was sent to the house of the accused. Shyamala never quarrelled with the accused. She never blamed the accused. He was also cross examined by the defence counsel, but nothing was brought out to discredit his testimony. 15. PW9 is the younger sister of Shyamala. She deposed that Shyamala and her husband were residing on the western side of their house. On the date of incident, the witness was in hospital at Thrissur. The accused used to manhandle Shyamala CRL.A.363/05 - 15 - every day. The accused will come home after taking drinks. He used to demand dowry from Shyamala. He also doubted the chastity of her. When he came home after taking liquor, he used to beat her. Shyamala used to tell her about such incidents. On a day when she went to the house of Shyamala, it was found that Shyamala was brutally beaten by the accused. Shyamala did not go to her house. Shyamala went to her house about six months before her death. She came home and lived in the house of the witness for about 15 days. The dispute was settled by the intervention of the brother of the witness. The accused used to come to her house. He used to tell that Shyamala will be killed by him and he would marry again. This witness was also subjected to cross examination by the defence counsel. She has stated in cross examination that Shyamala told her that she will not commit suicide. 16. PW10 is a student aged 9 years. The deceased Shyamala was her aunt. On the date of death she has seen the accused at about 5.30 p.m. in the evening. She also saw CRL.A.363/05 - 16 - Omana along with the accused. (Omana was a lady, with whom, the accused was suspected of having adulterous relationship). He put his hands on the shoulders of Omana and told the witness that she is her aunt. The accused told her that Shyamala Aunt will be finished today. Hearing that the witness cried and ran away. She spoke about the incident to her mother. Shyamala was killed on that day itself. The witness in cross examination stated that she was afraid of the accused. She was told by her elder brother that the accused killed their aunt Shyamala. The remaining witnesses other than PW12 are official witnesses. PW12 is the niece of the deceased Shyamala. She has also stated that the accused was doubting about the chastity of Shyamala. The witness has also heard the accused saying that he will marry someone else. Then Shyamala would say the same will not be permitted as long as she is alive. Thereupon the accused would say that Shyamala and her house will be destroyed. We are not referring in detail to the deposition of other official witnesses as the same is not CRL.A.363/05 - 17 - necessary for the disposal of the appeal having regard to the rival contentions. 17. The postmortem report, Ext.P8 would show that there was smell of kerosene on the dead body. Ext.P4 would show that kerosene was detected on three items recovered from the scene of occurrence. They were (1) charred hairs, (2)burnt mat and (3) burnt cloth. Going by the evidence of the witnesses, the body of Shyamala did not catch fire from the burning house. In fact, her body was completely burnt before the building burnt and collapsed. So, the death of Shyamala can be homicidal, that is somebody poured kerosene on her and set fire. It can be suicidal also. She might have poured kerosene on her body and set fire. But there is no clinching evidence as to whether it is a case of homicide or suicide. Evidence pointed out against the accused by the prosecution is the presence of the accused in the scene of occurrence. PW1 has stated that he has seen the accused going out of the room where Shyamala was lying and PW7 saw him coming from the CRL.A.363/05 - 18 - side of the kitchen of the said building. 18. Going by the deposition of the witnesses, we find it difficult to hold that the circumstances proved only point to the guilt of the accused. The possibility of suicide cannot be ruled out. So, that is a hypothesis which is inconsistent with the guilt of the accused. So, based on the circumstances proved by the prosecution, it is quite unsafe to hold the accused guilty of the offence under Section 302 IPC. But, we notice that all the witnesses have spoken to about the quarrel usually picked up by the accused, when he came home, after taking liquor. The witnesses in one voice stated about the harassment she was suffering meekly and without complaints, at the hands of the accused. The above version of the witnesses has not been challenged in the cross-examination even. So, we find no reason to disbelieve the version of the witnesses that the accused was harassing the deceased Shyamala. But, the trial court declined to enter a conviction against the accused under Section 498A for the reason that there was no evidence to show CRL.A.363/05 - 19 - a valid marriage between them. The trial court took the view that there was only a register marriage which, according to the trial court is an agreement to live together as husband and wife. The same is not a valid form of marriage for Hindus. Since the accused is not the husband of the deceased, the offence under section 498A will not lie, it was held. But, we notice that the accused and the deceased were living as husband and wife. All the witnesses including independent witnesses recognised and treated them as husband and wife. Section 498A is meant to protect women living as the wife of another person. The protection is not obliterated, even if there is some defect in their marriage. Section 50 of the Evidence Act says that opinion on relationship is a relevant fact. But, opinion is not sufficient to prove a marriage in proceedings under the Indian Divorce Act and prosecutions under certain sections of the Penal Code. Even though the Indian Evidence Act was subjected to various amendments recently, Section 498A was not included among the sections mentioned in the proviso to Section 50 of the CRL.A.363/05 - 20 - Indian Evidence Act. It implies, the intention of the legislature that protection from domestic violence and cruelty is required to be extended to all women living with men, even if there is some defect in their marriage. The point is whether they were treated as husband and wife by others. This view taken by us finds full support from a recent decision of the Apex Court in Reema Aggarwal v. Anupam (2004(2)K.L.T.822) The relevant portion of the said judgment reads as follows: “11. The question as to who would be covered by the expression “husband” for attracting S.498A does present problems. Etymologically, in terms of the definitions of “husband” and “marriage” as given in the various law lexicons and dictionaries – the existence of a valid marriage may appear to be a sine qua non for applying a penal provision. In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988) 1 SCC 530 = 1988 SCC (Cri.) 182 = AIR 1988 SC 644) a woman claimed maintenance under S.125 of the Code of Criminal Procedure, 1973 (in short “Cr.P.C.”). This Court applied the provision of the Marriage Act and pointed out that same was a law which held the field after 1955, when it was enacted and S.5 lays down that for a lawful marriage the necessary condition that neither party should have a CRL.A.363/05 - 21 - spouse living at the time of the marriage is essential and marriage in contravention of this condition therefore is null and void. The concept of marriage to constitute