IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 CRL.A.No. 79 of 2002() ---------------------- SC.150/1998 of SESSIONS COURT, KALPETTA .................... APPELLANT(S): APPELLANTS/ACCUSED NO.1,2 AND 4: ---------------------------------------------- 1. MONY @ SURESH KUMAR, S/O. APPU NAIR, PANGALADIKUNNU, KANIAMBETTA P.O. WAYANAD. 2. LAKSHMI AMMA, W/O. APPU NAIR, DO. DO. 3. PREMA @ PREMALATHA, D/O. APPU NAIR, DO. DO. BY ADV. SRI.A.K.SRINIVASAN SRI.N.S.MOHAMMED USMAN SRI.A.S.BENOY SRI.MATHEW JOHN RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY DY.S.P., KALPETTA, WAYANAD DISTRICT (CRIME NO.66 OF 1996 OF KAMBALAKKAD POLICE STATION). PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” V. RAMKUMAR,J. ........................................ CRL. APPEAL NO. 79 OF 2002 ........................................ Dated this the 17th day of December, 2009 JUDGMENT In this appeal filed under Sec. 374 (2) Cr.P.C by accused Nos. 1,2 and 4 in Sessions Case No. 150 of 1998 on the file of the Court of the Sessions Judge, Wayanad at Kalpetta, they challenge the conviction entered and the sentence passed against them for an offence punishable under Section 498 A I.P.C. The 3rd accused was acquitted by the Court below of all the charges levelled against her. 2. The case of the prosecution can be summarised as follows:- The marriage between Sunitha aged 18 years and Suresh Kumar (the first accused) aged 23 years was on 9-2- 1996. While Sunitha was residing in her matrimonial home at Kaniyampatta in Vythiri Taluk of Wayanad District, on account of the harassment and ill-treatment meeted out to CRL. APPEAL NO. 79 OF 2002 -:2:- her by A1 to A4 namely, husband, mother-in-law and two sisters-in-law of Sunitha in connection with their demand for further dowry, Sunitha committed suicide at about 4 p.m. on 26-4-1996 by consuming poison. The accused persons have thereby committed offences punishable under Sections 498 A and 304 B read with Sec. 34 I.P.C. 3. On the accused persons pleading not guilty to the charge framed against them by the court below for the aforementioned offences the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 15 witnesses as P.Ws 1 to 15 and got marked 8 documents as Exts. P1 to P8 and 10 material objects as Mos 1 to 10. 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 CRL. APPEAL NO. 79 OF 2002 -:3:- innocence. They filed a written statement to the following effect:- “The accused are residing in their house at Kambalakkad. A1 (Suresh) is the youngest member of the family. He was employed in the diamond factory at Kambalakkad. Since their mother was getting older day by day all of them wished to see him a married man. When the grandmother of deceased Sunitha died, accused Nos. 2, 3 and 4 had been to their house. From there they saw Sunitha and found the girl appropriate for Suresh (A1). They told Suresh about Sunitha. They told this fact to Janardhanan (P.W.6) a common friend and well- wisher. When the matter was presented before P.W.2 (Kesavan Nair) the father of Sunitha, he told P.W.6 that they were financially very poor and Sunitha was only studying. Thereafter A1 accompanied by his friend Varghesekutty went to see the girl. A1 liked Sunitha. Accused Nos. 2 to 4 also liked Sunitha. Accordingly yielding to the pressure of accused Nos. 2 to 4 A1 agreed to give Sunitha in marriage to A1. There was absolutely no demand for ornaments or money from the side of the accused. On the contrary, noticing the financial difficulties of P.W.2, after the marriage fixing ceremony the accused persons went to the house of Sunitha and CRL. APPEAL NO. 79 OF 2002 -:4:- gave her gold ornaments weighing 6 ¼ sovereigns. That apart, they also offered to conduct the marriage in a temple near their house and volunteered to conduct the feast in connection with the marriage in their house. It was the accused who printed and and distributed the invitation cards for both the families. After the marriage also every member of the family of the accused was treating Sunitha with great love and affection. Suresh (A1) was having a motor cycle even prior to his marriage. Until the death of Sunitha, both of them used to go out on the said motor cycle. Occasionally both of them used to pay a visit to the house of Sunitha and would stay there. However, Sunitha was not moving about freely in her matrimonial home. She was not in the habit of talking freely with the members of her husband's family. She preferred to be alone and was always in a pensive mood. When asked about the reason she was not giving any reply. At times Sunitha used to complain of stomach ache. On those occasions A1 used to take her to the hospital. While so, Sunitha became pregnant. She also developed vomitting and morning sickness in connection with her pregnancy. She was taken to Fathima Hospital in that connection. On realising that she was pregnant every member of the family of the accused were immensely happily. However, CRL. APPEAL NO. 79 OF 2002 -:5:- Sunitha had a feeling that it could have been postponed till a date after her examination. Her mother's opinion was also the same. After discharge from Fathima Hospital for the vomiting in connection with pregnancy, Suresh had taken Sunitha to her house on 21-4-1996. Thereafter on 24-4-1996 he took her back to the matrimonial home. On 26-4-1996 accused Nos. 1 and 3 had gone to work as usual. In the evening Sunitha started vomiting. It was initially felt that the vomiting was the usual vomiting in connection with her pregnancy. After the 3rd accused came home from her work place it was decided to take Sunitha to the hospital and to inform Suresh for which purpose the help of P.W.1 (Moidu) was sought. On the advice of Moidu and Krishnan Kutty (PW.3) , A3 went to Kambalakkad Police Station and reported the matter. A jeep was fetched with the help of police. Sunitha was taken to the nearby Minsha Hospital in the Jeep. From there the doctor examined her and advised that it would be better to take her to Fathima Hospital. Accordingly, Sunitha was taken to Fathima Hospital . By that time Suresh had also reached there. Sunitha died from the said hospital. On the next day her dead body was taken to her house and cremated. Suresh and others had taken part in the funeral. At that time nobody in the house of Sunitha had any sort of misunderstanding CRL. APPEAL NO. 79 OF 2002 -:6:- against the accused. Subsequently they have foisted the present case at the instance of some interested persons. It was an arranged marriage and contrary to the custom in the community that the brides people have to meet the expenses of the marriage, it was the accused who met the expenses. They had not put Sunitha any sort of discomfort leave alone any harassment. They are innocent. It was years after the death of Sunitha that the motor cycle of Suresh was sold. The documents pertaining to the same are being produced. 5. Since this was not a case of no evidence for the prosecution, the court below did not record an order of acquittal under Sec. 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to enter on their defence. 6. The learned Sessions Judge , after trial, as per judgment dated 2-1-2002 acquitted A3 of all the offences and acquitted the appellants (A1, A2 and A4) of the offence punishable under Section 304 (B) I.P.C but convicted them of the offence punishable under Sec. CRL. APPEAL NO. 79 OF 2002 -:7:- 498 A I.P.C. For the said conviction each of them was sentenced to rigorous imprisonment for two years and to pay fine of Rs. 5,000/- and on default to pay the fine to suffer rigorous imprisonment for six months. The fine amount was directed to be paid as compensation to P.W.2 the father of Sunitha under Sec. 357 (1)(b) Cr.P.C. It is the said judgment which is assailed in this Appeal. 7. I heard Advocate Sri.A.K. Sreenivasan, the learned counsel appearing for the appellant and Adv. Sri. C.M.Nazar, the learned Public Prosecutor who defended the State. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? THE POINT THE PROSECUTION WITNESSES 9. P.W. 1 (Moidu) is a neighbour to the matrimonial CRL. APPEAL NO. 79 OF 2002 -:8:- home of Sunitha (the deceased) in this case. He has close association with the house of the accused. However, he was examined for the limited purpose of proving Ext.P1 inquest report. 10. P.W.2 (Kesavan Nair) is the father of deceased Sunitha. 11. P.W.3 (Krishnankutty) is a neighbour . It was he who gave Ext.P4 F.I. Statement to Kambalakkad Police on 26-4-1996. 12. P.W.4 (Venugopalan @ Venu) is the uncle of deceased Sunitha. 13. P.W. 5 (Jayalekshmi) is the mother of Sunitha and wife of P.W.2. 14. P.W.6 (Janardhanan) is a clerk in the District Educational Office, Vythiri and he acted as the broker for the marriage between Sunitha and Suresh (A1). 15. P.W.7 (Devasya) is a neighbour at Anjukunnu which is the native place of Sunitha. On getting news about CRL. APPEAL NO. 79 OF 2002 -:9:- the illness of Sunitha he went in his jeep to Kambalakkad. 16. P.W.8 (Nazar) is a witness to Ext. P5 scene mahazar. Besides proving the scene mahazar, this witness says that A1 had his own motor cycle at the time of marriage and occurrence. 17. P.W.9 (Dr. Vijayakumar) proved Ext.P6 post mortem certificate as per which after getting Ext.P7 report of the viscera and blood of Sunitha he opined that she died of phorate poison. 18. P.W.10 ( Mohan Kumar) is the police constable, who took MO1 nail clippings of Sunitha and handed over the same to the investigating Officer. 19. P.W.11 (Krishnan) was the head constable of Kamblakkad police Station who recorded Ext.P4 F.I. Statement of P.W.3 on 26-4-1996 and registered Ext. P4 (a) F.I. R. It reached the Executive Magistrate, Sulthan Bathery on 4-5-1996. 20. P.W.12 (Padmanabhan) was the Tahsildar who CRL. APPEAL NO. 79 OF 2002 -:10:- held the inquest over the dead body of Sunitha from the mortuary of Fathima Matha Hospital, Kalpetta. Ext.P1 is the inquest report. It reached the Sub Divisional magistrate on 30-4-1996. 21. P.W.13 (Maniyamma) was the woman police Sub Inspector, Kalpetta who accompanied P.W.12. She also proved Ext.P5 scene mahazar. 22. P.W.14 (K.C. Balakrishnan) who was the Circle Inspector of Meenangadi conducted the investigation after verifying the investigation conducted by P.W.13. 23. P.W.15 (M.V. Somasundaran) was the Dy.S.P. Kalpetta who conducted further investigation of the case. 24. The prosecution relies on the testimony of PWs 2 to 6 to unfold its case. Hence, it is necessary to consider the evidence of the aforesaid witnesses. ANALYSIS OF THE ORAL EVIDENCE OF THE MAIN WITNESSES 25. PW2 (Kesavan Nair) is a resident of Anjukunnu in CRL. APPEAL NO. 79 OF 2002 -:11:- Mananthavady Taluk of Wayanad District. He ekes his livelihood by selling milk. He is financially not very sound. Sunitha who was aged 18 years in the year 1996, was one of his two daughters. The marriage between Sunitha and the 1st accused was solemnized on 09.02.1996 at Pongini temple near the house of the accused. A2 is the mother of A1, A3 and A4 of whom A1 is the youngest who was aged 23 years in the year 1996. A3 and A4 are the daughters. The marriage of Sunitha and A1 was an arranged marriage. A2 to A4 had asked PW2 whether he was willing to give his daughter in marriage to A1. PW2 then told them about his financial condition. Still, the accused wanted the alliance. A1 and his friend one Varghesekutty came and saw Sunitha. Even though PW2 wanted to give Sunitha in marriage only after she completed her Pre-degree, the accused were in a hurry to conduct the marriage. PW6, Janardhanan came and told PW2 that A1 liked the girl and had expressed his desire to marry her. Sunitha was then aged only 18 years CRL. APPEAL NO. 79 OF 2002 -:12:- and was studying in the 2nd year P.D.C. The accused had not demanded any gold ornaments or dowry. As per their custom, the marriage expenses are to be borne by the bride's SIDE. But even the invitation cards for the bride's side were got printed by the accused. On the date of marriage, the mid-day feast in connection with the marriage was not conducted in the bride's residence, but was conducted in the house of the accused. The documents which were in his possession to show that he had given ornaments worth 10 sovereigns to Sunitha, were taken away by the Circle Inspector of Police, Meenangady. His statement to the police as per Ext.D1 was that the ornaments of Sunitha were brand new and they were purchased by her uncles and PW2's younger brother. P.W.2, however, denied Ext.D1 statement given to the police. PW2 does not know the reason as to why his statement before the police does not say that D2 and D4 had demanded Rs.10,000/- towards the marriage expenses. CRL. APPEAL NO. 79 OF 2002 -:13:- It was D2 and D4 who had demanded the said amount towards the marriage expenses. As against the demand of Rs.15,000/-, he could give only Rs.10,000/- and that was given only on 07.02.1996 which was two days prior to the marriage. After the marriage, Sunitha went to her matrimonial home at Kaniyampatta. After three or four days, she along with A1 came to PW2's house at Anjukunnu and stayed there for a day. Next day they returned to Kaniyampatta and the accused persons and Sunitha thereafter came to PW2's house after about 1 ½ weeks. They returned on the same day. Thereafter, A1 and Sunitha used to come and stay with PW2 frequently. During those days, Sunitha used to mention about the mental harassment which was meted out to her in her matrimonial home. The accused persons used to harass her saying that her ornaments were not enough. Sunitha had come and stayed with PW2 several times. A1 wanted Rs.10,000/- to purchase a scooter for going to his factory at Kambalakkad. PW2 was CRL. APPEAL NO. 79 OF 2002 -:14:- unable to give that amount. Sunitha was taken by A1 to PW2's house for Vishu. Thereafter, on the next day PW2 took her back to the matrimonial home. After Vishu, Sunitha developed a morning sickness in connection with pregnancy. She was vomiting frequently. A1 got her admitted in the Fathima Matha Hospital, Kalpetta. PW2 and his brothers-in-law had gone and meet her in the hospital. She was later discharged from the hospital and she returned to her matrimonial home. On 21.04.1996, A1 took Sunitha to the house of PW2 and left her there saying that the relationship between Sunitha and A1's mother and sisters was not very cordial. After two or three days, A1 took her back. It was on 26.04.1996 that Sunitha committed suicide by consuming poison. On getting news to the effect that Sunitha was admitted in the hospital, when PW2 and his brother-in-law went there, Sunitha was already dead. 26. PW3, Krishnankutty is a neighbour of the accused CRL. APPEAL NO. 79 OF 2002 -:15:- at Kaniyampatta. On hearing loud screams from the house of the accused on 26.04.1996, PW3 went there and found A3 holding Sunitha and crying loudly. When PW3 enquired A3 about the reason, she told him that Sunitha was vomiting vigorously for the past few days. A3 then ran to the Kambalakkad Police Station which was only 100 metres away and called for a jeep using the telephone in the Police Station. Sunitha was first taken to Minsha Hospital at Kambalakkad. The doctor there examined her and he was unable to manage the case there. Sunitha was then taken to Fathima Matha Hospital at Kalpetta. The doctor in that hospital after examining Sunitha, pronounced her dead. PW3 then went to the Kambalakkad Police Station and gave Ext.P4 F.I Statement. Prior to the death of Sunitha, P.W3 used to hear loud noises and commotion from the house of the accused. P.W.3 admitted that PW1, (Moidu) is the closest neighbour of the accused. 27. PW4, Venugopalan, is the maternal uncle of CRL. APPEAL NO. 79 OF 2002 -:16:- Sunitha. He had attended both the marriage fixing ceremony as well as the marriage of Sunitha. This witness also admitted that there was no decision to give any dowry to A1. One day after the marriage fixing ceremony of Sunitha, Moidu (PW1), the immediate neighbour of the accused told him that the accused had asked him twice to request PW4 to go to the house of the accused. Accordingly, this witness along with PW2 went to the house of the accused. A2 and A4 i.e., the mother-in-law and one of the sisters-in-law of Sunitha told them that they have to give them Rs.10,000/- towards the marriage expenses. Both PWs 2 and 4 promised to give the said amount. A2 and A4 also told them that the ornaments of Sunitha were not enough. PW4 confessed that he did not say so when questioned by the police. Before the marriage, PW4 along with PW2 and one Sivan had been to the house of the accused and they gave Rs.10,000/- to A2, the mother of A1. After the marriage of Sunitha, PW4 and the parents of Sunitha had CRL. APPEAL NO. 79 OF 2002 -:17:- paid a visit to the house of the accused. During the said visit, A2 and A4 told them that Sunitha does not know cooking and that Sunitha should have been taught all these things right from her childhood. PW4 confessed that he did not tell this to the police when questioned. On the next day, after the Vishu in the year 1996, A1 had got Sunitha admitted in Fathima Matha Hospital for intense vomiting in connection with pregnancy. PW4 had then visited her in the hospital. At that time, Sunitha complained to PW4 that A2 and A4 were scolding her and harassing her frequently. He had told this to the police as well but he does not know why his statement to the police is silent about this. He had contributed Rs.4000/- for buying ornaments for Sunitha. His brother also had contributed. The marriage proposal for Sunitha came from the side of the accused. They very well knew about the financially vulnerable position of PW2. 28. PW5, Jayalakhmi is the mother of Sunitha. After the marriage of Sunitha and A1, they had come to her house CRL. APPEAL NO. 79 OF 2002 -:18:- on the Vishu day in 1996. A1 returned on the same day, but Sunitha stayed back for the day. During night, Sunitha narrated to PW5 about the harassment of A2 and A4. She told PW5 that A2 and A4 used to say that Sunitha does not know the domestic chores and that her ornaments were not enough. Next day PW2 took Sunitha to her matrimonial home. On 21.04.1996, A1 had brought Sunitha to the house of PW2 saying that A2 and A4 were scolding Sunitha continuously . A1, therefore, wanted Sunitha to stay with her parents for three or four days. During her stay, Sunitha told PW5 that A2 and A4 were harassing her saying that she does not know cooking and she does not have sufficient ornaments. PW5 and others had told Janardhanan (PW6) about the cruelty meted out to Sunitha by her in-laws and Janardhanan had talked to the accused about it. PW5 confessed that if these things are not seen stated in her statement to the police, she has nothing to say. Sunitha used to get acute stomach ache whenever she ate oily food CRL. APPEAL NO. 79 OF 2002 -:19:- and she used to be hospitlised for that. They wanted to conduct Sunitha's marriage only after her studies. But the accused persons were pressing for the marriage. 29. PW6, Janardhanan is a clerk in the D.E.O Office at Vythiri. He was instrumental for the marriage between Sunitha and A1. When on the Sivarathri day in March, 1995, PW6 had been to the house of the accused, A2 told him that they were in search of a girl for A1 and requested PW6 to find out a suitable match for A1. At that time, PW6 mentioned about Sunitha, the daughter of PW2. An informal understanding was thereafter arrived at to conduct the marriage between A1 and Sunitha before December that year. In the month of December, a ceremony of fixing the marriage was held in the house of PW2. PW6 had also participated in that ceremony. On that day, there was absolutely no demand for dowry. Subsequently, the marriage between Sunitha and A1 was solemnised on a Friday in the month of February, 1996 from CRL. APPEAL NO. 79 OF 2002 -:20:- the Pongini temple. After two months of the marriage, when he once meet A1, the latter told him that he was fed up with the harassment of Sunitha by his mother and sisters and that he had left Sunitha in her house. PW6 then requested him not to take it seriously and consoled him that they would solve the problem amicably. Accordingly, on a Monday about three or four days prior to the death of Sunitha, he went to the house of the accused. A2 and A4 alone were there in that house at that time. PW6 asked them to go and bring back Sunitha. A2 and A4 complained that Sunitha was not knowing the domestic chores and Sunitha was disobedient and Sunitha was trying to alienate A1 from the rest of his family members. The 4th accused who is the eldest sister of A1 told him that A1 was brought up by her right from his childhood and he had beaten her in the presence of Sunitha. P.W.6 returned from that house and 3 or 4 days thereafter he came to know that Sunitha had died by consuming poison. P.W.6 denied CRL. APPEAL NO. 79 OF 2002 -:21:- Ext.D4 statement given by him to the police to the effect that there were discordant notes between the mother and sisters of A1 and they used to quarrel each other. P.W.6 had no comments to be offered to the omission in his statement to the police that there was difference of opinion between Sunitha on the one side and A1's mother and sisters on the other. The most serious thing which struck him was the complaint by A4 that A1 had beaten her in the presence of Sunitha. But P.W.6 did not ask A1 about this. JUDICIAL EVALUATION 30 . If we go by the testimony of P.W.2 the demand of Rs. 10,000/- towards marriage expenses cannot by any stretch of imagination be taken as a demand for dowry. It is an admitted fact that as per the custom of the community the marriage expenses were to be borne by the bride's side but it was the accused who met the marriage expenses. Even the mid-day feast was conducted CRL. APPEAL NO. 79 OF 2002 -:22:- in the residence of the accused. The marriage itself was solemnised in a temple near the house of the accused. It was the accused who had printed the invitation cards for the use of the bride's side. It has been admitted by all the prosecution witnesses that there was no demand for dowry from the side of the