Criminal Appeal No. 106 of 2000 · Kerala High Court · 2007

J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Crl. Appeal No. 106 of 2000 (B) - - - - - - - - - - - - - - - - - - - -Dated this the day of February, 2007J U D G M E N TThe accused, three in numbers, faced the trial before theSessions Court, Kozhikode, in Sessions Case No.55/1997, for theoffence punishable under Sections 498A, 304B and 306 I.P.C readwith Section 34 of the Indian Penal Code. On appreciation of theevidence, the sessions court found that accused 1 and 3, were guiltyof the offence under Section 498A I.P.C read with Section 34 of theI.P.C. Therefore, both of them were convicted and sentencedthereunder to undergo rigorous imprisonment for a period of oneyear each, although, they were acquitted of the offence underSections 304B and 306 I.P.C. The 2nd accused was acquitted of allthe offence alleged against her. Therefore, accused 1 and 3 cameup with this appeal, challenging the conviction and sentence, asabove.2.The brief facts required for the disposal of thisappeal are that a young woman, Shiji, who was a B.Com student ofthe local college and a neighbour of the 1st accused, was attracted Crl.A No. 106/2000 (B)-: 2 :-towards the 1st accused. It ended in Shiji walking away from herhouse and registering her marriage with the 1st accused, on30/06/1995. When Shiji did not come back as usual, PW.1 madeenquiries and found that Shiji was in the house of the 1st accused.The 2nd accused is the sister of the 1st accused, and, the 3rd accusedis the mother of both, accused 1 and 2. Though the life of Shiji andthe 1st accused was pleasant in the initial period, the prosecutionalleges that, after the marriage of the elder brother of the 1staccused, with DW.1, who brought home about 30 to 40 sovereignsof gold ornaments, there used to be a comparison between Shiji andDW.1. That ended in family feud, resulting in the assault andharassment of Shiji by the 2nd and 3rd accused. Shiji wascomplaining about this to PW.1, her mother. PW.1 discussed thesematters with others, including PW.2, a relative of PW.1.3.When the conduct of the accused becameunbearable, Shiji ran away from her house. However, the 1staccused in a bike and, his brother in a jeep of PW.3, accompaniedby PW.4, went in search of Shiji. She was located standing near thelocal panchayat office. She was taken forcibly in the jeep of PW.3.They took Shiji to the electrical shop of the father of the 1st accused. Crl.A No. 106/2000 (B)-: 3 :-There, the father assaulted the 1st accused. The 1st accused in turnassaulted Shiji. Thereafter, all of them took Shiji to the house of theaccused. The prosecution alleges, through PW.4, that both accused1 and 2, assaulted Shiji and also belittled her.4.Because of the continuous cruelty perpetuated onShiji, she poured kerosene oil and set fire to herself. She was takento Medical College Hospital, Calicut. She succumbed to the burninjuries sustained by her, on 03/05/1996.5.PW.1 made a complaint before the KunnamangalamPolice Station. Accordingly, investigation was conducted and finalreport filed against accused 1 to 3.6.The prosecution examined 20 witnesses and marked26 documents. Three material objects were also marked andidentified. The Sessions Judge convicted accused 1 and 3 andsentenced them as above.7.Though, the marriage between the deceased Shijiand the 1st accused was not according to the custom of thecommunity, yet the same is not disputed by the defence. PW.5, theSub Registrar of Mavoor Sub Registrar Office, was examined toprove the document through which the deceased Shiji and the 1st Crl.A No. 106/2000 (B)-: 4 :-accused have contracted their marriage. The ill-treatment on Shijiis spoken to by the prosecution through PWs.1 to 4. PW.1 is themother of the deceased Shiji and PW.2 is the neighbour of theaccused. PW.1 has got the information, only as informed to her bythe deceased as well as others. There is no dying declarationrecorded by the Magistrate although he visited the hospital but thevictim was not fit to speak. PW.2 narrates certain incidentsinvolving the accused 1 and 2, while the deceased was living in thehouse of the accused.8.PW.3 is the driver in whose jeep, the brother of thefirst accused, along with PW.4 and others, travelled to trace outShiji, when she left the house without informing them. As discussedearlier, they could trace out Shiji near the local panchayat officeand brought her to the electrical shop of the father of the 1staccused. It was there the 1st accused assaulted her in front ofothers. There was also some incidents narrated while they weretravelling back to house, in the jeep. But PW.3 had cautioned them,not to indulge any such activities in his jeep. However, certainincidents, on arrival in the house of the accused, are narrated byPW.3. PW.4 also spoke certain incidents after bringing Shiji back to Crl.A No. 106/2000 (B)-: 5 :-the house of the accused. Learned Sessions Judge, afterappreciating the conduct of PW.4, did not accept some of theversions of PW.4. Nevertheless, the Sessions Judge had acceptedthe other portions of evidence of PW.4. There is nothing in lawwhich prevents the court from accepting a portion of evidence of aprosecution witness, provided, the court is of the opinion that thesame instils confidence. The materials on record show that PW.4 isrelated to the accused and also having some distant relationshipwith PW.1, as suggested by the defence. 9.The learned counsel for the appellant argued thatas the Sessions Judge found that Sections 304B and 306 I.P.C arefound not having committed by the accused, the findings of thecourt below under Section 498A I.P.C., in the circumstances of thiscase, is to be reappreciated, particularly, in the absence of anymaterial, connecting the mother having assaulted the deceased.The counsel also further submitted that even according to PW.1, asspoken to her by her deceased daughter, Shiji, that whenever, Shijiwas taken out of the house, Shiji was made to wear the goldornaments of DW.1, so that the other relatives may not find faultwith the defficiency of ornaments on Shiji. The counsel, therefore, Crl.A No. 106/2000 (B)-: 6 :-submitted that the 3rd accused always showed affection and lovetowards Shiji. Hence, the findings of the court below to thecontrary, more so, when the 2nd accused, against whom manyallegations of assault were made, had been acquitted, may not besustained.10.Though, PW.1 was on the side of the bed of thedeceased Shiji, in the hospital, Shiji did not speak anything to PW.1as to how the occurrence took place and what was the immediatecause of she immolating herself. Shiji had stated to PW.1 that shewould speak to her on her return home from the hospital. But shedied while in the hospital itself. The prosecution has brought to mynotice the intervention of elder brother of the 1st accused, wheneverShiji attempted to speak to PW.1 while in hospital. In a criminal lawmere suggestions or surmises are not sufficient to reach to adefinite conclusions or inferences. Even PW.4 did not speak thatthe 3rd accused, the mother, had assaulted Shiji, when she wasbrought back from the panchayat office, after meeting the father ofthe 1st accused. It is in evidence through PW.4 that Shiji kept onsaying that she did not like to reside in the house of the accused,but instead she was willing to have a separate residence for living Crl.A No. 106/2000 (B)-: 7 :-with the 1st accused. Although, the above statement of the victimmay give rise to an inference, as discussed above, that she wasfacing harassment by the accused, this lone circumstance is notsufficient to come to a conclusion, attracting the explanation ofcruelty, as stated in Section 498A of I.P.C., with regard to 3rdaccused.11.On disbelieving certain portions of depositions ofPWs.2 and 4, the 2nd accused was acquitted. PW.4 deposed that itwas the 2nd accused who had assaulted the deceased, when she wasbrought back to the house, along with the 1st accused. There is nomedical documents to show that she had sustained any injuries asshe had suffered 80% deep burn, involving neck, body, trunk andboth limbs, as could be seen from Exhibit P9 wound certificate.Exhibit P10 postmortem certificate reveals that Shiji had died dueto infective complications of burns.12.When the injured Shiji was admitted to the hospital,Judicial Magistrate of the First Class, Kunnamangalam, wasrequested to record the dying declaration. Accordingly, on02/05/1996, the learned Magistrate visited the hospital but theinjured was under sedation, as informed to him by the Professor of Crl.A No. 106/2000 (B)-: 8 :-Surgery and Unit Chief. The Magistrate left the Bed No.27 of WardNo.23, after informing the Assistant Sub Inspector of PoliceKunnamangalam, to inform the Magistrate, when the injured wouldregain consciousness. However, records show that the Magistratewas not informed and no dying declaration was recorded. 13.The evidence of PWs.3 and 4, particularly, inrespect of the occurrence that took place near the panchayat officeat Poovattuparamba and at Kuttikattoor, on the morning of30/04/1996, is fully established. The court below, who had seen thewitnesses and the accused in action, had disbelieved certainportions of PWs.2 and 4. There is no sufficient material on record,to show that the 3rd accused, the mother, is also involved inconducting such a manner, to make the deceased Shiji to commitsuicide by pouring kerosene oil on her. Nevertheless, the materialsavailable on record unequivocally show that the first accused wasfully responsible and it was because of his conduct and cruelty thatShiji committed suicide. In such circumstances, I hold that theprosecution has not established or proved the case beyond theshadow of doubt, in respect of the 3rd appellant, the third accused,Komalam, the mother of the first accused. However, the Crl.A No. 106/2000 (B)-: 9 :-prosecution has established the case beyond the shadow of doubtunder Section 498A I.P.C in respect of the 1st appellant, the 1staccused, Biju alias Rishikes, son of the 3rd accused. Therefore, theconviction and sentence of the 3rd accused, the 3rd appellant,Komalam, is set aside and she is set at liberty cancelling her bailbond. The conviction of the 1st appellant-1st accused is upheld.14.Though section 498A I.P.C prescribes a punishmentfor a term which extends to three years and also shall be liable tofine, the lower court imposed a rigorous imprisonment for one year.The age of the 1st accused during the trial was 26 years. He haddeposed at the time of hearing on the question of sentence that, hehad aged father and mother and he may not be sent to jail. I haveappreciated the entire facts and considered the circumstancesunder which the incident occurred. On reappreciation of the entirematerials on record, I am of the opinion that a sentence ofimprisonment for a period of three months with a fine of Rs.25,000/-(Rupees twenty-five thousand only) would meet the ends of justice.15.In the result, the 1st accused is sentenced underSection 498A I.P.C to undergo rigorous imprisonment for threemonths. I also impose a fine of Rs.25,000/-, in default of which, the Crl.A No. 106/2000 (B)-: 10 :-1st accused shall undergo simple imprisonment for six months. Ifthe fine amount is realised, the entire amount of Rs.25,000/- shallbe paid to PW.1, the mother of the deceased Shiji, as compensationunder Section 357(1) of Code of Criminal Procedure. 16.The court below is directed to issue a modifiedwarrant to the 1st accused and shall take steps to execute thesentence against the 1st appellant, the 1st accused at the earliest.The warrant issued in respect of the 3rd appellant, the 3rd accused,shall be recalled. The appeal is partly allowed as above. The 1st appellantis entitled for set off as per the law.(J.M.JAMES)Judgems