IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 Crl.Rev.Pet.No. 1958 of 2009() ------------------------------ SC.1048/2004 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), KOLLAM .................... REVN. PETITIONER(S): DEFACTO-COMPLAINANT ---------------------------------------- K.SUDHAKARAN,AGED 64 YEARS,S/O.KRISHNAN, REMA MANDHIRAM,NEAR GHURUMANDHIRAM, VELAMANNOOR MURI,KALLUVATHUKKAL VILLAGE,KOLLAM. BY ADV. SRI.BIMAL K.NATH SRI.S.JAMAL SRI.E.M.SUNIL KUMAR SRI.SREEVALSAN.V RESPONDENT(S): ACCUSED/COMPLAINANT ---------------------------------- 1. SURESH,AGED 41 YEARS,S/O.VIDYADHARAN, SUGATHAVILASAM VEEDU,NETTAYAM CHERRY, ELAMADU VILLAGE,KOTTARAKKARA. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1958 of 2009 -------------------------------------- Dated this the 24th day of July, 2009. ORDER This revision is in challenge of acquittal of respondent No.1, husband of the deceased of the charges under Sections 498A and 306 of the Indian Penal Code (for short, “the IPC”). Respondent No.1 married Suja, the deceased on 2.5.1999. Going by the evidence he went abroad in connection with employment about fifteen days after the marriage and as per the statement of PW1, first informant, information reached them that respondent No.1 isl coming on leave on 20.7.2001. While so, between 11 p.m. On 2.7.2001 and 7 a.m. On 3.7.2001 Suja committed suicide by hanging herself on the hook of a ceiling fan. First information regarding the incident was given by PW1 on 3.7.2001 at about 11 a.m. Based on that, a case of unnatural death was registered. Tahsildar and Executive Magistrate conducted inquest. During that time there was no complaint of harassment of the deceased by respondent No.1 of anybody else. After about sixteen days, parents of the deceased told the investigating officer that respondent No.1 had subjected the deceased to cruelty demanding more ornaments and money and unable to bear that, deceased committed suicide. Nature of offence in the first information report was altered as one under Sections 398A and 306 of the IPC. After investigation a final report was submitted alleging offences in that line. Respondent No.1 faced trial in the court of learned Additional Sessions Judge (Adhoc-I), Kollam. Prosecution examined Crl.R.P.No.1958/2009 2 PWs 1 to 16 and proved Exts.P1 to P11. Exts.D1 to D7 were marked for respondent No.1. Learned Additional Sessions Judge found that the charge is not proved and acquitted respondent No.1 under Section 235 of the Code of Criminal Procedure (for short, “the Code”). That acquittal is under challenge in this revision. Learned Public Prosecutor after taking instructions in the matter has submitted that State has not preferred an appeal against the acquittal. 2. It is contended by learned counsel that reliable evidence given by PWs 11 and 12, parents of the deceased was not taken into account by the court below. According to the learned counsel evidence of PWs 11 and 12 gets corroboration from Ext.P9, writing left by the deceased. Evidence of PW1 was lightly brushed aside. I have heard Public Prosecutor also on the contention raised by petitioner. 3. No doubt death of the deceased under the circumstances otherwise than normal was within seven years from the date of her marriage with respondent No.1. But, it is also to be shown that soon before death the deceased was subjected by the person concerned to cruelty or harassment for, or in connection with any demand for dowry. Then only presumption under Section 113B of the Evidence Act would come into operation. In this case evidence regarding alleged cruelty and harassment comes from PWs 1, 6, 11 and 12. PW6 is a friend of the deceased and PWs 11 and 12, her parents. They have referred to the alleged cruelty and harassment of the deceased at the hands of respondent No.1, as told by the deceased to them. So far as PW6 Crl.R.P.No.1958/2009 3 is concerned, he is a friend of the deceased and was nowhere in the picture when PW10, Tahsildar and Executive Magistrate conducted inquest on the body of the deceased. PW6 comes into picture only in the subsequent investigation. PW3 is a neighbour of respondent No.1 and at the relevant time was a member of the local panchayat. He is an attestor in Ext.P2, inquest. He stated at the time PW10 conducted the inquest that nobody had a case of cruelty or harassment of the deceased leading to her death. This is confirmed by PW10 and Ext.P1, inquest report. Unlike the statement of witnesses recorded by the investigating officer under Section 161 of the Code statement recorded by the Executive Magistrate under Section 174 of the Code are admissible in evidence. Not only that PWs 11 and 12 had no case at the time of inquest of any cruelty or harassment of the deceased, what they told to PW10 then is that there was no problem between the deceased and respondent No.1 and that she had a happy life at the matrimonial home. Exts.D2 series and D6 series are the marked portions in the statement of PWs 11 and 12 recorded by PW10. These marked portions show that respondent No.1 used to send money to the deceased regularly to meet the expenses of herself and the family, that PWs 11 and 12 used to visit the deceased in the matrimonial home often and the deceased used to make return visits. On such occasions there was no complaint from the deceased that she had any difficulty of any sort at the matrimonial home. PWs 11 and 12 even stated that the suicide might be due to the stress and agony the deceased had on account of respondent No.1 going abroad about 10-15 days after the marriage and not coming back until her death and the strain Crl.R.P.No.1958/2009 4 she was suffering on account of the illness she had which prevented her from going for job she got recently in a school which is a little far away. This cannot be taken as an isolated statement since in Ext.P1, PW1 stated that after respondent No.1 went abroad after marriage, deceased and her parents-in-law had a happy life at the matrimonial home. It is only several days after the incident that PWs 6, 11 and 12 came with the case of alleged harassment and cruelty. 4. Ext.D4 series are admittedly letters sent by the deceased to respondent No.1 while the latter was abroad. I have gone through the letters and find her love and affection expressed in express terms towards respondent No.1. Going by Ext.D4 series it appears that deceased was under an agony and even had a concern that notwithstanding her cohabiting with respondent No.1 for about fifteen days after the marriage, she did not conceive. She even suspected as if she had some problem and was scared that atleast others might think so. In one of the letters among Ext.D4 series she asked respondent No.1 whether she had any trouble (which prevented her from conceiving). While so, she got news of her friend conceiving. She conveyed that to respondent No.1 and thought why that luck did not happen to her. There also, she expressed doubt whether she had any (physical) trouble (in not conceiving). Reading these letters it would appear that deceased nursed a thought, right or wrong that she had some physical trouble which prevented her from conceiving. Reading from Ext.D4 series I understand that the deceased was placed in very tense Crl.R.P.No.1958/2009 5 mood on account of that distressing thought. This must be taken along with the statement in Ext.P1 that information was received that respondent No.1 was to come on leave on 20.7.2001. Possibly or atleast probably deceased feared that even her cohabitation with respondent No.1 after his arrival would not bear fruit and she was thinking about that situation and its aftermath on her life. 5. Ext.D1 shows that sufficient money was being deposited in the account of the deceased. As per the last entry in Ext.D1 about Rs.50,000/- was in her deposit. This must be taken along with the statement of PWs 11 and 12 to PW10 in Ext.P2 that respondent No.1 used to send money to her regularly. Ext.P8 is the diary of the deceased. I find that in all the relevant pages she has been writing the name of respondent No.1 and then her own name as ‘Suja Suresh’. That document only shows her love and affection to respondent No.1. What remained is Ext.P9. There ofcourse deceased advised respondent No.1 to marry another lady and live happily but cautioned him that he must be careful while selecting the bride so that, after marriage he had no reason to find fault with her. This cannot be taken as harassment on the part of respondent No.1, for, in Ext.D4 series itself deceased questioned respondent No.1 whether anybody had complained of lack of dowry (indicating that there was no such complaint) and even stated that if any such demand was there, her marriage with respondent No.1 would not have taken place. Therefore it is wrong to contend that there was a demand for dowry preceding her death. Ext.P9, if written under a mental situation after she decided to commit suicide may have found fault with respondent No.1 for her ill-fate. The mere fact that deceased Crl.R.P.No.1958/2009 6 has written so in such a mental state is not by itself sufficient to warrant a conclusion that respondent No.1 has subjected the deceased to cruelty, instigated or aided intentionally or otherwise her committing suicide. After going through the evidence on record and on hearing learned counsel I am not inclined to think that learned Additional Sessions Judge was wrong in his approach either in the matter of appreciation of evidence or the conclusion arrived at. I have to bear in mind that the function of the revisional court is not like that of an appellate court hearing an appeal against acquittal where appreciation of evidence is possible. I referred to the evidence on record only for the purpose of satisfying myself that learned Additional Sessions Judge has not committed any illegality, irregularity or impropriety either in assessing the evidence or reaching the conclusion. As such, this revision cannot be sustained. Revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks