IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 25TH DAY OF MAY 2011/4TH JYAISHTA 1933 CRL.A.No. 850 of 2001 ( ) ------------------------- AGAINST THE ORDER/JUDGMENT IN SC.132/1999 of D.C. & SESSIONS COURT,KOZHIKODE DATED 16-08-2001 APPELLANT(S)/ACCUSED NOS. 1 AND 2: ---------------------------------- 1) MURALEEDHARAKUMAR ALIAS, MURALEEDHARAN, S/O.RAGHAVAN, KAKKUPARAMBATH HOUSE, P.O.KAKKUR. 2) SAROJINI, D/O.KUTTAN, KAKKUPARAMBATH HOUSE, P.O.KAKKUR. BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S)/COMPLAINANT: ------------------------------------ STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING DY.S.P.THAMARASSERY. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR BY SRI.C.J.JOY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- Crl.A No. 850 of 2001 -------------------------- Dated this the 25th May, 2011 J U D G M E N T Appellants were charge-sheeted for offences under Sections 498A, 304B and 306 read with Section 34 of Indian Penal Code. They are son and mother respectively. After the trial, learned Sessions Judge convicted both of them under Section 498A read with 34 of Indian Penal Code and sentenced them to undergo simple imprisonment for one year and also to pay a fine of Rs.5,000/- each and in default to undergo simple imprisonment for three months each. They were acquitted of offences under Sections 306 and 304B read with 34 of Indian Penal Code. This appeal is filed against the said conviction and sentence. 2. According to prosecution, first accused married deceased Mini on 19.5.1996, in accordance with the custom and at the time of marriage, 15 sovereigns of gold ornaments were given. After the marriage, they started ill- treating and inflicting mental cruelty stating that the gold ornaments were not sufficient and she committed suicide Crl.A No. 850 of 2001 2 at her parental house on 27.4.1997 at about 9.30 a.m. 3. To prove the prosecution case, prosecution examined PWs 1 to PWs 17 and marked Exts.P1 to P24 and MO1 to MO3. Accused did not adduce any any evidence on record and marked Exts.D1 to D5 on their side. On an analysis of the evidence in detail, the trial court found that the deceased Mini was subjected to persistent cruelty by accused and it was on account of demand for more gold ornaments was not acceded to by the appellants. 4. Heard both sides. Perused the records. Learned counsel for the appellants argued that the trial court relied upon Ext.P2, a letter which is purportedly written by the deceased Mini before her death and based on the same, the trial court found that there must be cruelty from the part of the appellants. The trial court was of opinion that no married woman would commit suicide unless the harassment at the matrimonial house was too severe. According to the trial court, a woman would be prepared to get rid of her husband only as a last resort. So the fact that Mini did not want to continue the marital relationship with first accused and she wanted her father to put an end to Crl.A No. 850 of 2001 3 marital tie, as revealed from Ext.P2 would show that life with first accused was miserable, it is held. 5. Learned defence counsel argued that Ext.P2 does not make any reference to the cruelty inflicted by either of the accused. No whisper is made in Ext.P2 that the accused harassed or ill-treated the deceased. However, learned Public Prosecutor argued that Ext.P2 will indicate that she did not want to go back to her husband's house and such an inference was made by the trial court cannot be said to be improbable. A married woman will express her unwillingness to go back to her husband's house only if the marital life is not happy in the matrimonial home, it is submitted. 6. On hearing both sides and on going through the records in this case on a first blush, I cannot find fault with the submissions made by the learned Public Prosecutor. But in cases where a married woman committed suicide, it may not be proper to apply a theory put forward by learned Magistrate. A woman may be reluctant to go back to her husband's house or may intend to put stop to the marital relationship and even seek a divorce due to various Crl.A No. 850 of 2001 4 reasons. Therefore, in a case of this type, it is the duty of the court to find out whether it was due to the matrimonial cruelty that she has expressed her unwillingness to continue the marital relationship or not. 7. The court cannot proceed on surmises or conjunctures and make a conclusion that unwillingness expressed by the married woman to go back to her matrimonial house is only because of the reason that she was subjected to cruelty by her husband or relatives. I shall proceed to consider the evidence on record to conclude whether there was matrimonial cruelty or not. The case of the prosecution is that the deceased Mini was ill-treated by the husband and mother-in-law stating that gold ornaments given to her was low. To prove this fact, prosecution relied upon the evidence of Mini, PW2, PW3, PW5, PW6 and PW7. 8. PW2 is the brother of the deceased Mini. He gave evidence in the chief-examination that first accused had brought his sister to his house after the marriage and promised that he would come back in the evening. But, he failed to come. When enquiries were made to deceased, she stated that her sister-in-laws were given 30 sovereigns of Crl.A No. 850 of 2001 5 gold ornaments and she was told to bring 15 sovereigns more. Mediators intervened and five more sovereigns of gold were given and thereafter she was taken back to her husband's house. 9. PW2 proceeded to state that even after giving five more sovereigns of gold, they were insisting to give the balance gold (10 sovereigns) and this fact was stated to him by the deceased Mini. But, in the cross-examination PW2 candidly admitted that after a chain worth (five sovereigns) was given, the deceased Mini was taken to the house of the first accused happily and thereafter also he used to go to her matrimonial house and deceased Mini used to come to her parental house also. After the mediation and the settlement, she never used to tell anything when they meet. 10. In such circumstances, it is only reasonable to infer that after five sovereigns of gold were additionally given, the matrimonial relationship was smooth and the deceased Mini had not told anything to the brother regarding any further demand. PW2 also admitted that she did not make any allegation in Ext.P2 letter handed over by Crl.A No. 850 of 2001 6 her to PW2 regarding any ill-treatment of the accused on the deceased. 11. It is also relevant to note that Ext.D2 which is a portion of the statement given by PW2 to the Tahasildar at the time of inquest was marked in this case and as per the statement, he told the Police that the deceased died because of the mental disturbance since her pregnancy got aborted in three months. Nothing is stated in statement made at the time of inquest regarding the ill-treatment on account of insufficiency of gold after the settlement and handing over of 5 sovereigns of gold ornaments. 12. The evidence of PW3, the father of the deceased Mini is also more or less to the same effect. He specifically stated that after the demand for five sovereigns of gold, there was no complaint from the side of the accused. He also stated that on getting five sovereigns of gold, first accused and his friends came home and took back the deceased Mini. Thus, it is quite clear that after the matter was settled and five sovereigns of gold were given, the accused did not raise any complaint regarding gold ornaments. It is true that PW3 also stated in the chief Crl.A No. 850 of 2001 7 examination that even after giving five sovereigns of gold more demands for ten sovereigns was made and the deceased Mini was ill-treated by the accused physically and mentally, even in the charge laid by the Police, there is no allegation of any physical cruelty. 13. In this context, it is also to be noted that PW2 stated that he got the letter Ext.P2 before the death of the deceased Mini . But he did not make any enquiry to the daughter as to why she had decided to divorce the first accused. This incident happened about one week prior to the death of the deceased Mini. It appears that even her own father did not have any idea as to why the deceased Mini wanted to divorce the first accused. If there was any serious problem he would have certainly made some discussion or enquiries on this. But the case is that he did not even ask the deceased Mini about the matter referred to in Ext.P2 letter. 14. It is also pertinent to note that PW3 gave inconsistent statement regarding the request made by the deceased Mini to him about divorce. In the first instance, he stated that his daughter had asked to get her divorce and Crl.A No. 850 of 2001 8 on the second breath, he stated that it was to the first accused that she had stated so one week prior to the incident and that he had only overheard the said statement. Immediately thereafter he also stated that he did not see the first accused, but he only heard the conversation when he was going to the kitchen. 15. Regarding Ext.P2, it is stated by PW3 that after getting the letter neither him or his wife discussed anything with the daughter regarding the proposed divorce. PW3 even stated that he did not read the letter. He thus gave totally inconsistent evidence regarding Ext.P2 even with respect to the reading of the same. At any rate, on a reading of the evidence of PWs 2 and 3, it is clear that giving five sovereigns of gold ornaments, deceased Mini was taken to her matrimonial house by the first accused himself and there was no further demand for any gold ornaments. 16. PW4 is none other than the sister of the deceased Mini. She also stated that she used to go to her sister's husband's house and meet her sister on all sundays. But she has no case that deceased had told her anything about harassment by the first accused or his relatives. In fact, she Crl.A No. 850 of 2001 9 gave evidence that she had gone to the house of one Arunkumar along with her sister about two weeks prior to the death of deceased Mini and that the said Arunkumar is the first respondent's friend. She stated that two elder brothers of the first accused had at that time told her sister to come back to their house, after taking medicine. 17. PW5 is the another witness who was examined to the State about the ill-treatment. She is the neighbour of the deceased Mini. She deposed that deceased had told her that if she did not bring the balance gold, she would be treated as servant. She was also told not to tell these facts to the parents. However, after giving five sovereigns of gold, deceased Mini was taken back to her husband's house. She did not have any case in the chief examination that she was asked to give ten more sovereigns of gold after the settlement and handing over five sovereigns of gold ornaments. She stated that she told the deceased Mini's relatives about what the deceased Mini had told her on thei ill-treatment and cruelty. 18. But PW5 deposed that she had not told them that there was ill-treatment even after the chain of 5 sovereigns Crl.A No. 850 of 2001 10 was given. From this evidence, it is clear that after five sovereigns of gold was given there was no instance of cruelty or demand and if at all she knew about such harassment there is no reason why she would not state such details to the relatives of the deceased Mini at least after death. 19. PW7 is the person who had arranged the marriage. He has given evidence that he was told by the first accused to give more gold ornaments, as his mother and sister were offended because of insufficiency of gold ornaments and that this may be conveyed to the father of the deceased Mini. There was a talk thereafter and it was settled that five more sovereigns of gold ornaments would be given and it was given also. At that time, deceased Mini was in her parental house and she was taken back home by first accused, his friends and relatives. He also stated that she did not give any statement that there was harassment even hereafter. In such circumstances, it is to be inferred that if at all there is some difference of opinion that was over by giving five sovereigns of ornaments and thereafter accused and deceased were on cordial terms. Crl.A No. 850 of 2001 11 20. The prosecution has failed to prove that there was ill-treatment after the matter was settled and five sovereigns of gold ornaments were given. Of course, a question will arise why a girl aged 25 years committed suicide?. If there was no reason for to do so, why she set fire to herself by pouring kerosene? Though lack of evidence is sufficient to hold that prosecution failed to establish the guilt of the accused, I will proceed to consider whether there was any reason for the deceased to commit suicide. The trial court commended upon Ext.P2 letter which was allegedly written by the deceased and handed over to her brother PW2 which would reflect the matrimonial cruelty. 21. On going through Ext.P2, it would appear that the deceased Mini was not quite willing to take medicine. There was something reluctant to take medicine. Her refusal to go to her husband's house has some nexus to such reluctance. She made it clear that once she takes medicine, none should ask her to go back to her husband's house. Crl.A No. 850 of 2001 12 22. So a question may arise who was insisting her to take medicine against her willingness. However, there is no investigation into the fact as to who was insisting her to take medicine. It is also not looked into what was the reason for reluctance to take medicine For what purpose she was taking medicine and why she is refused to go to her husband's house after she took medicine. It is in evidence that she was living in her husband's house till one week prior to her death and she had requested her brother to take her to a doctor. 23. PW2 the brother of the deceased deposed that information was passed on by the first accused that deceased Mini was sick and she had fallen unconscious more than twice and she had to be taken to a doctor. Accordingly, deceased Mini's mother went to the house of the first accused and she was taken to the doctor by her husband and the mother. Thereafter, she was taken back to her house. 24. It is also in evidence that no medicine was purchased even though a prescription was issued . Even the medical prescription is not produced before the court. The Crl.A No. 850 of 2001 13 doctor who examined the deceased Mini was not examined in court. It appears that the deceased must be having some reluctance to take medicine and that the deceased Mini's father had gone to the house of 1st accused and obtained the prescription for purchasing medicine and he purchased medicine also. But Ext.P2 indicates that she made it clear to the relatives that after she took medicine she would not go back to the house of the accused. 25. At any rate, there is no evidence to establish that the deceased Mini was treated with cruelty demanding more gold ornaments as alleged by the prosecution. If at all there was any demand, after handing over 5 sovereigns of gold ornaments, such dispute was over and first accused and the deceased Mini were living together in the matrimonial house until she came back to her house. Therefore, she was taken to a doctor and some medicine were prescribed. Ext.P2 does not reveal any cruelty or harassment from the appellant. In such circumstances, conviction and sentence passed against appellants cannot be upheld. In the result, the following order is passed: Crl.A No. 850 of 2001 14 (i) The conviction and sentence passed against the appellants under Section 498A read with Section 34 of Indian Penal Code are set aside. (ii) The appellants are found not guilty of offence under Section 498A read with Section 34 of Indian Penal Code and they are acquitted of the said offence. (iii) The appellants are set at liberty forthwith. This appeal is allowed. Sd/- K.HEMA, JUDGE ma /True copy/ P.A to Judge