IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 CRL.A.No. 1876 of 2003(D) ----------------------------------- SC.255/1999 of ADDL.SESSIONS COURT (FAST TRACK I) MANJERI ............................................... APPELLANT(S): ACCUSED -------------------------------------- VELAYUDHAN S/O. CHANTHANKUTTY, KARIMBANAKKAL HOUSE, VILAYIL PARAPOOR,MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): STATE ----------------------------------- THE STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, MANJERI POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI -31. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1876 OF 2003 ------------------------------ Dated this the 22nd day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Fast Tract-I), Manjeri in S.C.No.55/1999. The accused was charge sheeted for the offences under Sections 306 and 498 A of the IPC and found guilty under both the sections and sentenced to undergo R.I for three years and to pay a fine of Rs.1,000/= under Section 498 A and sentenced to undergo R.I for 7 years and to pay a fine of Rs.5,000/= under Section 306. Default sentence also was imposed. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether there is sufficient evidence to hold that the accused has committed the guilt under Sections 498 A and 306 of the I.P.C (2) whether the sentence imposed is excessive. 3. Heard the learned counsel for the appellant as well as the Prosecutor. This case also is one which comes as a result of the disastrous consequence of the imperfect 2 CRL.A.NO.1876/03 understanding and relationship between the couples. It is sad, a young lady, aged 26 years with three children, had put an end to her life and the father of the young children is put in the dock for trail under Sections 498 A and 306 of the I.P.C. The couple got married on 28.1.1990 and the sad end of the wife came on 29.7.1998 when she consumed poison which resulted in her death. The husband has been booked under Sections 498 A and 306 of the I.P.C for the death of the wife on the ground of cruelty as well as for the abatement to commit suicide. 4. Before going into the facts of the case, let us understand the legal principle to be followed in this type of case. Under Section 498 A of the IPC, a husband can be punished for cruelty if he subjected the wife to cruelty. Cruelty has been categorized as two: (a) 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, limb or health (whether mental or physical) of the woman. Second limb is regarding harassment of the woman for dowry which does not arise in this case. 5. Under Section 306, a person can be punished for 3 CRL.A.NO.1876/03 abatement of suicide, if any person commits suicide on account of the abatement and what is abetment has been defined under Section 107 of the IPC. This Court had an opportunity to deal with a case of this nature in the decision reported in Rajan v. State of Kerala (1994 (1) KLT 179). This court held that: “a reading of Section 498 A and 304 B and Section 113 B of the Evidence Act incorporated in the statute books through Act 46 of 1983 would indicate that Explanation (b) of Section 498 A of the Penal code is the associate of Section 304-B of the Penal Code and in such a case Section 113 B of the Indian Evidence Act would apply. But Explanation (a) to Section 498 A of the Penal Code has no such association with any other provision. It stands by itself. In other words, in the case to which Section 498 A read with Explanation (b) applies, it would automatically escalate to Section 304 B if death of the woman has occurred within seven years of her marriage otherwise than under normal circumstances. Hence a magistrate would be justified in converting the case in such a situation into committal proceedings. But such automatic escalation does not happen in a case to which Explanation (a) of Section 498 A applies. In order to constitute the offence under Section 306 of the Penal Code there should have been abetment of commission of suicide. Section 107 of the Penal Code says that a person abets the doing of a thing who either instigates any person to do that thing or engages in a conspiracy for the doing of that thing or intentionally aids the doing of that thing. An accused against whom the offence under Section 498 A IPC is alleged with reference to Clause (a) of the Explanation would 4 CRL.A.NO.1876/03 not automatically become guilty under Section 306 of the Penal Code merely because the victim committed suicide even assuming that she did so under the stress of such cruelty. The person who subjected her to cruelty cannot be deemed to have intentionally aided her to commit suicide. The most which could be found, perhaps, is that she decided to end her life on account of the unbearable cruel treatment meted out by such persons. Even then Section 306 of the IPC cannot be rolled over them.” 6. Going by the dictum laid down therein Section 306 cannot be automatically attracted just because a person commits suicide or a wife commits suicide. Again this Court in the decision reported in Cyriac v. S.I of Police (2005(3) KLT 673) held that it is not enough if the acts of the accused caused persuation in the mind of the deceased to commit suicide and it is not what the deceased 'felt', but what the accused 'intended' by his act which is more important. 7. The Apex Court had also considered the impact of the same in the decision reported in Kishori Lal v. State of M.P. (2007 (3) KLT KHC 259). So far as Section 498 A is concerned, cruelty can be found if the harassment is sufficient to make a feeling in the mind of the lady to commit suicide. Now with these materials, let me proceed to analyse the evidence before 5 CRL.A.NO.1876/03 this Court. 8. PW1 is the father of deceased Shobha. He had deposed before the court that he had given his daughter in marriage to the accused and that three children are born in that wedlock and that the accused is a Carpenter by profession. It is also deposed by him that Shobha died from her matrimonial home and that fact was intimated through a relative. According to him, for 1 1/2 years after the marriage, they lived happily. The accused used to drink a lot and used to suspect his wife and the daughter used to come to his house and stayed in the parental house when the trouble becomes unbearable. After 15 or 20 days, the husband used to come and take her back promising her that nothing will happen. It is stated by him that one day she was beaten mercilessly when the child broke the lamp and on another day some amount was given to the child, again she was beaten and when the child crossed the weapon used for carpentry, then also the wife was tortured. It is also stated that the husband used to fist and kick the wife. When he was cross examined and when he was confronted with Ext.P1 statement, it is clear that he had not given any reason for the 6 CRL.A.NO.1876/03 death of his daughter. The one reason given for immediate provocation is that the sister of the husband was carrying and she had gone to see the sister and after returning back home she was beaten by the husband and thereafter she committed the suicide. We do not find any such statement anywhere in Ext.P1. PW2 is the wife of PW1's brother's son. She did not support the case of the prosecution. 9. PW3 is one Narayanan and he deposed that deceased Shoba is his father's elder sister's daughter. He has also not supported the case of the prosecution but in the cross examination by the Prosecutor, it is elicited that Shobha had told that postmortem of her body has to be conducted when they meet in a function. 10. PW4 is the doctor who had conducted the postmortem which would show that cause of death was on account of the consumption of poison. PWs 5,6, 7 and 8 are only formal witnesses. PW9 is the person who had conducted the investigation and laid the charge. A specific question was put to him in the cross examination whether he had enquired into the fact that there was a quarrel between the accused and the deceased day prior to the death of Shobha, he would answer 7 CRL.A.NO.1876/03 that nobody had given such a version but he would add that she consumed poison on account of the cruelty of the husband. PW10 is also an official witness. 11. PW11 is the sister of deceased Sobha. She would depose that the husband and wife were not living in cordial terms and 5 ½ months prior to the death of Sobha, she had come to the house on account of the death of Sarojini and there was a talk about conducting of postmortem on the body of Sobha if she dies. She would also depose that the accused used to drink and ill treat Sobha. She also speaks about the incident that took place on the previous day. According to her, the accused was always suspecting the wife. To a question in the cross examination she would submit that she is only guessing the reason for the death of Sobha. So, the evidence available in this case would not show that there are sufficient materials to hold that the accused had abetted the wife to commit suicide. Abetment is something which should be intentional. Even a casual saying 'go and die' may not amount to abetment. But, the persuasion must be of such a degree that an ordinary person may do that act on account of the persuasion. In this case it is 8 CRL.A.NO.1876/03 totally lacking. Nobody has got a case that the husband used to tell the wife or prompt her to commit suicide. Just because the husband and wife quarrelled and as there is mental agony caused to the wife it does not result or end in a situation where the husband is abetting the wife to commit suicide. It is spoken to by PWs 1 and 11 regarding an incident that took place after Sobha came back from the house of the husband's sister. But, nothing is available in the form of an acceptable evidence to show that such a visit has been made by Sobha on the previous day. 12. Under ordinary circumstances the husband may not react so sharply when the wife goes and visits his sister. Therefore, I am not inclined to accept the finding of the court below that the husband namely the accused had abetted the wife to commit suicide so as to attract the offence under Section 306 of the IPC. 13. Now let me to consider the question under Section 498 A. The learned counsel for the accused/appellant strongly contends before me that the materials are not sufficient to attract cruelty as shown in Section 498 A explanation (a). Under Section 498 A explanation (a) any willful 9 CRL.A.NO.1876/03 conduct which is of a such a nature as is likely to drive a woman to commit suicide amounts to cruelty. It can be seen from the evidence of PWs 1 and 11 that the lady had a peaceful life hardly for 1½ years after the matrimonial tie. The wear and tear aggravated and the wife had been tortured even for small purposes and instances that when the wife was forced to go and live with her parents until the husband came after a few days to take her back. Under ordinary circumstances, a woman who is the mother of three children hardly aged 26 years may not attempt to put her life to an end making the small children destitute. So, until and unless there was harassment, she would not have put an end to her life. I make it clear that harassment does not amount to commit suicide but when it becomes intolerable one may sometimes put an end to life. 14. The institution of marriage is a sacrosanct and the philosophy of marriage is that the husband will look after the wife till her death and the wife will follow the husband even if the life is faced with so many difficulties. But, it will not be tolerable when it exceeds the limit and when the husband especially starts suspecting the chastity of a woman. It is 10 CRL.A.NO.1876/03 stated by Shakespeare that frailty name is woman. These are all the basic materials which one has to bear in mind to lead a matrimonial life and irresistible temper and tendency to get away from the life now caused a great damage to the institution of marriage and affects the society at large, it is said. 15. Now the facts of the case would reveal that a young lady had put an end to her life before she had started living. The husband had been instrumental for the same in the sense that he had made her life miserable by torturing her. Therefore, I find that the finding of guilt under Section 498 A of the IPC has to be sustained and I do so. 16. Now turning to the question of sentence. It is really embarrassing when it is viewed from the angle of the poor children. Their mother is dead and father has to be put in jail. Where will they go for shelter becomes a major question. But at the same time, the law prescribes punishment which is also to be carried out. So, the balance can be struck by awarding a reasonable punishment. What shall be the reasonable punishment is the next question. The learned counsel for the appellant also strongly contends before me 11 CRL.A.NO.1876/03 that if he is send to jail, then the three children, who are under his shelter will become shelterless and so leniency has to be shown. Section 498 A prescribes mandatory punishment and fine. Taking into consideration the entire facts, I feel justice can be rendered by sentencing the husband to undergo imprisonment for a period of one year with a fine of Rs.1,000/= and in default, to undergo S.I for one month. 17. In the result, the criminal appeal is disposed of as follows: 1.The finding of guilt and the conviction and sentence passed under Section 306 of the IPC is set aside. 2. The finding of guilt under Section 498 A is sustained. 3. The accused is sentenced to undergo R.I for one year and to pay a fine of Rs.1,000/= and in default, to undergo S.I for a period of one month. He is also entitled to set off as contemplated under Section 428 of the Cr.PC. M.N.KRISHNAN, JUDGE. cl