Criminal Appeal No. 306 of 2003 · Kerala High Court · 2007

Crl.A.No.306/2003-A-:7:-not stated to the police that when PW.1 and her son-Anoop went toinvite the couple for Onam, PW.8 had also accompanied PW.1.8.The evidence of PW.8 is that he had mediated in the matter andthat he had gone to the house of the accused along with PW.1 andAnoop and at that time the accused took him to a room and afterclosing the doors conveyed that he will go to the house of thedeceased only if he gets 25 sovereigns of gold more. It was broughtout in the cross-examination that he has not stated so before thepolice. As per Ext.D3(a) his version was that he heard from PW.1 andAnoop when PW.1 and Anoop visited the house of the accused two tothree days prior to Onam for inviting the accused and the deceasedthat the demand for gold was made by the accused. The trial courthas specifically found that the version of PW.8 and the incorporationof PW.8 is a definite improvement in the case and the version of thewitnesses in this regard is unreliable.9.The evidence of PW.7-the immediate neighbour to the house ofthe deceased to whose house the accused used to make telephonecalls from abroad to talk with the deceased as there was no telephoneconnection in the house of the deceased, was also found not to be Crl.A.No.306/2003-A-:8:-credible. According to PW.7, once when the deceased attended thephone, she was crying and that she mentioned that the accused isdemanding 25 sovereigns of gold more. PW.7 has stated that oncewhen she attended the telephone, the accused reiterated that heshould be given atleast the chain worn by the mother of the deceased.She had no such case when the police questioned her, it was broughtout. 10.It was brought out from the evidence of PW.11, theInvestigating Officer that PW.1 had not stated that the accused haddemanded 25 sovereigns of gold. There was also no case for PW.1that the relatives of the accused was harassing the deceased at theinstigation of the accused as he has stated before the court.11.The incident narrated in Ext.P3 letter, i.e. episode of humiliationby the parents and sister of the accused on the deceased and herparents when the deceased was taken along with the child to thehouse of the accused and the fact that Ext.P3 is written by thedeceased, according to the court below stood proved from theevidence of PW.1 and when Ext.P3 is compared with Ext.P4 note bookthe version of PW.1 in this regard was found to be credible. In view Crl.A.No.306/2003-A-:9:-of Section 47 of the Evidence Act, the version of PW.1 was relied on.Of course, the court have found that the alleged presence of PW.8-themediator when PW.1 and Anoop visited the house of the accused isonly an embellishment. The version of PW.8 in this regard was alsofound to be unreliable as the above aspect is found to be a significantomission in their Section 161 Cr.P.C statement as noted above. Theevidence of PW.7-the neighbour was also found to be not inspiringconfidence. It is also noted that the demand for gold etc. is notmentioned in Ext.P3 letter. It was found that the evidence adduced isnot sufficient to establish that the cruelty or harassment was inflictedin connection with the demand for dowry or that the allegedharassment was with a view to coercing the deceased or the relativesof the deceased to meet any unlawful demand for dowry. 12.The evidence of DW.1, the Professor and Head of theDepartment of Psychiatry and Vice Principal of Pariyaram MedicalCollege, Kannur, that on 18/08/1997 she was examined by him andExt.D4 is the prescription issued by him and that she was sufferingfrom episodic illness and mood disorder and that on 01/09/1997 alsoshe was examined by him and advised her to continue the medicineswas also noted by the court below. The death was on 13/09/1997. It Crl.A.No.306/2003-A-:10:-was found in the opinion of the court below that when such a personwas ill-treated, and especially a lady, the same is sufficient to driveher to commit suicide. 13.As contended by the counsel for the appellant, the only objectiveevidence to the ill-treatment is Ext.P3 letter. The date of the aboveletter is 19/10/1996, that is, about one year prior to the date ofsuicide. Further Ext.P3 did not contain any specific allegation againsther husband. It was also pointed out that the court inS.C.No.458/1999 had specifically held that there is no similarity in thehandwriting in Ext.P3 with that of Ext.P4 note book and the admittedhandwriting of the deceased in the greeting cards. On a comparisonit cannot be definitely held that Ext.P3 is in the handwriting of thesame person who wrote the note book and greeting cards. It waspointed out that Ext.P3 was produced before the Investigating Officerafter ten days of the incident, according to the prosecution; and that itwas produced by the prosecution before the court only along with thefinal report. As observed by this court in Aravindakshan Nair K.R.v. Essen Bankers and others [2007 (3) ILR 312] relying on theSupreme Court decisions expert opinion ought to have been obtainedin the matter. More prominent is that it is one year after the date of Crl.A.No.306/2003-A-:11:-Ext.P3 that the incident has taken place. The fact that the deceasedwas under psychiatric treatment at the time of death stands proved. In the circumstances, I find that the accused is entitled to thebenefit of doubt. The conviction and sentence imposed is set aside.The appeal is allowed.K.R.UDAYABHANU, Judge ms Crl.A.No.306/2003-A-:12:-K.R.UDAYABHANU, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Crl.A.No.306 of 2003-A~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T ----th September, 2007