PUTHUPPALLIL SHAJI ALIAS v. NONE

Crl.A.Nos.1466 & 2082 of 2006:-4-:contentions and pleadings, the trial court formulated two issuesfor its consideration and finally found that the accused/appellantwas guilty under Section 304B I.P.C. and accordingly, he wassentenced to undergo imprisonment for seven years and set offwas allowed. It is the above conviction and sentence challengedin this appeal.5. I have heard Mr.R.Surendran, learned counselappearing for the appellant and also Smt.K.L.Lakshmi Rani, thelearned Public Prosecutor.6.Originally, Ext.P1(a) F.I.R in Crime No.357 of 1995 ofIritty Police Station was registered under the caption 'unnaturaldeath' on the basis of Ext.P1 statement given by PW-1 to PW-13, the A.S.I. of the Iritty Police Station. PW1 stated before theA.S.I. that he went to the Police Station to lodge the informationregarding the suicide committed by Laly, W/o.Shaji Mathew.According to the First Information Statement, on 29.12.1995evening, the sister of the accused and her husband came in thehouse of the accused as guests and on that day, along with them,the deceased Laly had gone for a cinema and as the deceasedwent for cinema, without obtaining permission from the accused, Crl.A.Nos.1466 & 2082 of 2006:-5-:there was a quarrel between the deceased and the accused andat about 7 a.m. on the next day, i.e. on 30.12.1995, Lalycommitted suicide by consuming poisonous pesticide which waskept for treatment of the plantain and the accused removed her tothe hospital in a lorry driven by one Jose firstly to Eduthala andtherefrom, in a jeep bearing Registration No.KL13 B 2113 to theGovernment Hospital, Iritty. Immediately thereafter, the said Lalywas taken to the Kannur Government Hospital and from there toA.K.G. Hospital and from the A.K.G.Hospital to KozhikodeMedical College Hospital. According to PW1, as per theF.I.statement, the marriage between the accused and thedeceased had taken place just before one and a half years andthey were quarrelling frequently. According to him, the accusedquestioned and quarrelled with her for going cinema without hispermission. When PW-1 was examined, he admitted thesignature in Ext.P1 F.I.statement and stated that at 2 p.m. on aday in December 1995, he was told by his wife that Laly wasadmitted in A.K.G.Hospital, Kannur and when he was about togo, he got information that Laly was taken to Medical collegeHospital, Kozhikode and accordingly, he reached there and cameto know that Laly expired and he returned to his home on the Crl.A.Nos.1466 & 2082 of 2006:-6-:same day and the next day morning at 8 a.m. on 31.12.1995, hewent to the Police Station, and lodged Ext.P1 statement. As hedisowned 161 statement with respect to the reason for the deathof the said Laly, he was declared as hostile. 7. Other main witnesses examined are PWs.2,3 and 5who are the brothers of the deceased. Besides the brothers,sister of the deceased was also examined as PW4 and her sister-in-law was examined as DW3. When Pws.2 to 5 were examined,they deposed in favour of the prosecution saying that thedeceased told them that the accused was harassing her for notgiving the balance amount of dowry. The other three witnessesnamely, Pws.6,7 and 8 were turned hostile to the prosecution.PW6 is the brother of the father of the accused and PW7 is thewife of PW6 and PW8 is their daughter. According to the courtbelow, they turned hostile deposing that they did not knowanything about the alleged torture of the deceased Laly by theaccused. In this case, the statements of Pws.6 to 8 wererecorded under Section 164 of the Code of Criminal Procedure bythe Judicial First Class Magistrate, Kuthuparamba who wasexamined as PW10 in this case. During their examination in thepresent case, they admitted the statement given before PW10, Crl.A.Nos.1466 & 2082 of 2006:-7-:but according to them, they gave such statement due to thecompulsion and threat from the part of the Police. PW-9 is thewitness to Ext.P16 inquest report. Mos.1 to 4 are the dresses ofthe deceased. When PW10 was examined, he had stated thathe had complied with all formalities and ensured that thewitnesses were giving statement voluntarily and according to theirfree will. Ext.P35 is the certificate issued by PW11 AssistantSurgeon of Kannur District Hospital who examined the deceasedat about 10.30 p.m. on 30.12.1995. The autopsy on the body ofthe deceased was conducted by PW12 and he issued Ext.P36post mortem certificate. PW13 who registered the F.I.R. alsovisited the place of occurrence and prepared the scene mahazarwhich is marked as Ext.P37. PW14 is a witness to the seizuremahazar Ext.P11, by which the letters sent by the deceased wereseized. Exts.P2,P4,P5, and P7 to P10 were letters seized by thePolice. Ext.P15 is the seizure mahazar prepared for the seizureof wedding photos of the accused as well as the deceased.There are certain other witnesses and documents as prosecutionexhibits to prove the marriage between the accused and thedeceased which are not relevant, according to me, for thedisposal of this appeal since the marriage is not disputed by the Crl.A.Nos.1466 & 2082 of 2006:-8-:accused. PW19 is the husband of the elder sister of thedeceased who signed Ext.P3 as the witness. PW20 is theTahsildar of the Thalassery Taluk who prepared Ext.P16 inquestreport. PW21 is the Dy.S.P., Kannur who conducted theinvestigation and PW22 is the successor of PW21, whocompleted the investigation and laid the charge. There arecertain other documents produced by the prosecution which,according to me, assume much importance and relevance in thefactual background of the case and therefore, I shall refer thosedocuments. As indicated earlier, certain letters written and sentby the deceased to her brothers were seized by the Police. Thedetails are as follows:- Ext.P2 is a letter written by the deceased to PW2 andExt.P3 is the mahazar for the seizure of the said letter. Ext.P4 isanother letter sent by the deceased to PW3 and Ext.P5 is theletter sent to his wife by the deceased. Those two letters areseized as per Ext.P6 mahazar. Exts.P7 to P10 are the letterssent by Laly to PW4 and Ext.P11 is the mahazar for seizure ofthose letters. Exts.P17 to P34 are the contradictions in thestatement given by Pws.6 to 8 with respect to the 164 statementrecorded by PW10 and the same are proved through him. Crl.A.Nos.1466 & 2082 of 2006:-9-:Ext.P39 is the report submitted by PW21 for altering the section.Exts.P40 to 43 is the contradictions in the statement of Pws.1,7,9and 10.8.The defence took a stand that the deceased Lalycommitted suicide because of her despondency as the accusedwas incapable to give birth to a child and also the accusedadduced evidence to show her temperament. DW1 is theaccused himself who mounted to the box and gave evidence tothat effect. DW2 is the Assistant Surgeon of the GovernmentHospital, Thalassery who issued Ext.D2, the result of theexamination of the serum of the accused. DW3 is the wife of thebrother of the deceased who was examined to prove the lettersent by herself to the accused which is marked as Ext.D4. DW4is one of the friends of the deceased Laly and Ext.D5 is the lettersent by her to the deceased. . Exts.D1 and D3 are the pregnancytest results of the deceased. 9.After analysing the above evidence and the facts andcircumstances involved in the case, the trial court was of theopinion that the cardinal point to be looked into is regarding theconduct of the accused and also of the opinion that in theabsence of evidence of eye witnesses in a case like this, the Crl.A.Nos.1466 & 2082 of 2006:-10-:court has to rely on the circumstances and other witnesses. Thetrial court considered the legal question involved in the case inthe following manner as to “whether the deceased Laly wassubjected to cruelty or harassment by the accused for or inconnection with any demand for dowry and if it is shown thatthe accused had harassed the deceased demanding dowrybefore her death, a presumption can be drawn under Section113B of the Indian Evidence Act, 1872 (for short 'the Act')that the accused caused the dowry death which comes underSection 304 B of the I.P.C.”. On the basis of the availableevidence and materials, according to the trial court, theharassment meted out against the deceased was proved andtherefore, it was for the accused to show that the death was notdue to the harassment or the harassment was not for or inconnection with the demand for dowry. Finally, the court foundthat in the present case, from the evidence of Pws.2 to 5 and theletters sent by the deceased Laly, it is obvious that she wastortured and harassed by the accused demanding dowry whichled to the death. Thus, it was accordingly found that the accused Crl.A.Nos.1466 & 2082 of 2006:-11-:has committed the offence punishable under Section 304B ofI.P.C.10.Learned counsel for the appellant submits that theprosecution has miserably failed to show that the death was dueto the harassment connected with demand for dowry.According to the learned counsel, the marriage between thedeceased and the accused was settled or has taken place not onthe basis of any dowry demanded or fixed. According to thelearned counsel, the fixation of Rs.2 lakhs, the payment of oneand a half lakhs rupees as cash and ornaments and offer to paythe remaining Rs.50,000/- will not come within the purview ofdowry. On the other hand, it can be treated only as the share ofthe deceased which she is entitled to get from the family property.It is also pointed out by the learned counsel that absolutely thereis no evidence to show any demand raised by the accused for thedowry either the full amount or balance towards the dowry andalso there is no iota of evidence to show that the deceased Lalywas subjected to harassment demanding either for the balancedowry amount or for more dowry amount. Going by the evidenceof prosecution, viz., the letters written by the deceased itself,according to the learned counsel, it can be seen that her only Crl.A.Nos.1466 & 2082 of 2006:-12-:agony is with respect to the habitual consumption of liquor by theaccused. Learned counsel also pointed out that even going bythe prosecution case itself, the dispute between the accused andthe deceased has been settled at the intervention of the brotherson 24.12.2005 through dialogue with the accused and thus aftersettling the issue, both the deceased and accused were taken tothe house of the accused by Sherli. It is thereafter, the deceasedcommitted suicide on 30.12.1995. Therefore, according to thelearned counsel, absolutely there is no evidence to show thatsoon before the death of Laly, she was subjected to cruelty orharassment by the accused in connection with any demand fordowry. Thus, according to the learned counsel, in the absence ofany concrete evidence or reliable materials, to show that Laly hascommitted suicide because, before such death, she wassubjected to cruelty or harassment in connection with anydemand for dowry, no statutory presumption under Section 113Bof the Act is available in favour of the prosecution and againstthe accused. Thus, according to the learned counsel, even if it isadmitted as proved that the deceased was subjected to anyharassment or cruelty, the offence will not come under Section304B of I.P.C. and without conceding, the learned counsel Crl.A.Nos.1466 & 2082 of 2006:-13-:submits that at the most, what was attracted is only under Section498A of the Indian Penal Code. Therefore, according to thelearned counsel, the conviction and the consequent sentenceunder Section 304B of I.P.C. is liable to be set aside.11.Per contra, Smt.Lakshmy Rani, the learned PublicProsecutor submits that the evidence let in by the prosecutioncategorically proved that there was a settlement regarding thedowry amount connected with the marriage between the accusedand the deceased and out of the two lakhs rupees so settled, onlyone and a half lakhs of rupees was given to the accused by wayof cash and ornaments and the accused was continuouslyharassing the deceased demanding for the balance dowryamount of Rs.50,000/-. It is also pointed out by the learnedPublic Prosecutor that demanding for the balance amounttowards the dowry and more money from the house of thedeceased, the accused was frequently quarrelling with thedeceased after consuming liquor and as a result of such disputeand quarrel, on several occasions, she had to leave hermatrimonial house, but she was again sent back with thecompany of the accused and the accused continued his cruelbehavior to the deceased demanding more money including the Crl.A.Nos.1466 & 2082 of 2006:-14-:balance dowry amount. According to the Prosecutor, theprosecution has tried to adduce evidence by examining Pws.6,7and 8, the persons who are connected with and more concernedwith the matrimonial home of the deceased and as a precaution,their statements were recorded under Section 164 of the Cr.P.C.and the evidence thus adduced by the prosecution would clearlyshow the harassment meted out against the deceased by theaccused. According to her, besides the oral evidence, theprosecution has also produced certain contemporaneousdocuments namely, the letters written by the deceasedaddressing her brothers pointing out the harassment and cruelbehavior of the accused shown to her and threatening connectedwith the demand for dowry. The learned Public Prosecutorfurther submits that by adducing the evidences, both oral anddocumentary, the prosecution has succeeded in establishing theharassment meted out by the accused against the deceasedconnected with the demand for dowry and therefore, in view ofSection 113B of the Act, a statutory presumption can be drawnthat the death of Laly was due to the dowry demand from the partof the accused. It is also the case of the Public Prosecutor thatas the prosecution has succeeded in establishing the harassment Crl.A.Nos.1466 & 2082 of 2006:-15-:from the part of the accused, it is for the accused to show andestablish that the death is not a dowry death, but for some otherreason, and in the present case, though such attempt was made,it was failed miserably. Hence, according to the Prosecutor, thetrial court had correctly found that the accused was guilty of theoffence under Section 304B of the I.P.C. and a reasonablepunishment was imposed and therefore, there is no illegality soas to interfere with such judgment by this Court by exercising theappellate jurisdiction.12.I have carefully considered the contentions advancedby learned counsel for the appellant in Crl.A.No.1466 of 2006 aswell as the learned Public Prosecutor and also perused thematerials and evidence on record.13.In the present case, the marriage between theaccused and the deceased is admitted and it is also beyonddoubt that the deceased committed suicide within seven yearsfrom the date of their marriage. Section 304B of I.P.C. deals withdowry death which runs as follows:-“304B. Dowry death.-- (1) Where the deathof a woman is caused by any burns or bodilyinjury or occurs otherwise than under normal Crl.A.Nos.1466 & 2082 of 2006:-16-:circumstances within seven years of hermarriage and it is shown that soon before herdeath, she was subjected to cruelty orharassment by her husband or any relative ofher husband for, or in connection with, anydemand for dowry, such death shall be called“dowry death”, and such husband or relativeshall be deemed to have caused her death”Explanation: For the purpose of thissub-section, “dowry” shall have the samemeaning as in Section 2 of the DowryProhibition Act, 1961 (28 of 1961).(2) Whoever commits dowry death shall bepunished with imprisonment for a term whichshall not be less than seven years but whichmay extend to imprisonment for life.”In the light of the facts which are beyond dispute as mentionedabove, what is to be established by the prosecution is that soonbefore the death of Laly, she was subjected to cruelty orharassment by the accused in connection with any demand fordowry.14. In this juncture, it is also relevant to examine theamendment brought in the Indian Evidence Act, 1872 byincorporating with Section 113B.“113B. Presumption as to dowry death.--When the question is whether a person hascommitted the dowry death of a woman and it Crl.A.Nos.1466 & 2082 of 2006:-17-:is shown that soon before her death suchwoman has been subjected by such person tocruelty or harassment for, or in connectionwith, any demand for dowry, the Court shallpresume that such person had caused thedowry death.Explanation.-- For the purposes of thissection, “dowry death” shall have thesame meaning as in section 304B, ofthe Indian Penal Code, (45 of 1860)”By incorporating such a provision, it is the obligation of the courtto draw a presumption against a person under Section 113B ofthe Act that such person had caused the dowry death provided ifit is shown that soon before the death of a woman, such womanhas been subjected by such person to cruelty or harassment for,or in connection with, any demand for dowry. So a conjointreading of Section 304B of the I.P.C. and Section 113B of the Actwould show in the present case, the prosecution has to showand establish that the accused had subjected the deceased Lalyto cruelty or harassment soon before her death for or inconnection with any demand for dowry.15.The above burden of the prosecution is tried todischarge through the oral evidence of Pws.2 to 8. Besides theoral evidence of the above witnesses, the prosecution has also Crl.A.Nos.1466 & 2082 of 2006:-18-:relied upon certain documents to prove its case. 16.The learned counsel on the basis of the decision ofthe supreme Court in Appasaheb v. State of Maharashtra (2007(4) KLT 463)(SC) submits that the main demand for money onaccount of financial stringency or for meeting urgent domesticexpenses will not come within the purview of dowry. According tothe learned counsel, the prosecution has not established thatthere was a demand for dowry and the same was settled as acondition precedent for solemnization of the marriage. However,according to the learned counsel, the documents produced in thiscase are not sufficient to show that there was a dowry demandand a settlement. From the prosecution evidence, especiallyPW2 has stated that the dowry was fixed as two lakhs rupeesand a sum of Rs.1,50,000/- was given to the father of theaccused from the date of betrothal and the specific agreementwas that remaining Rs.50,000/- will be paid after two years. It isalso stated that about 30 sovereign ornaments were given to Lalyand the ornaments were bought from the dowry amount of oneand a half lakhs rupees. PW2 also deposed that he received aletter dated 1.12.1995 written by deceased Laly mentioning aboutthe cruelty faced by Laly from the deceased in respect of the Crl.A.Nos.1466 & 2082 of 2006:-19-:demand of the balance amount of Rs.50,000/- towards dowry.Regarding the dowry, Pws.3 and 4 were also deposed in terms ofPW2. In the light of the above facts, the contention raised bythe learned counsel for the appellant with respect to the dowry isnot sustainable.17.The next question to be considered is whether thedeceased was subjected to cruelty or harassment by the accusedin connection with any demand for dowry. In order to prove theabove aspect, the prosecution has very much relied upon thedepositions of Pws.2 to 5 and Pws.6 to 8. In the chiefexamination, PW2 has stated that the sisters of the deceasedLaly gave 5 sovereign ornaments to the deceased and theaccused was frequently demanding the ornaments of Laly. It wasalso deposed that whole money which was given to Laly, as andwhen she came to the parental house, was also taken by theaccused. PW2 says that the deceased told him that all this wasused in an extravagant way. PW2 has also stated that parents ofthe accused directed Laly not to give ornaments and money tothe accused. He had stated that the accused used to assault thedeceased and one day, the accused had driven out Laly from hishouse asking her to bring money. It was also stated that the Crl.A.Nos.1466 & 2082 of 2006:-20-:father of the accused sent telegram to the brother of PW2, Josepasking him to reach there and the said telegram was receivedwhen Laly reached the house of her elder sister. Thus, all ofthem were taken Laly to the house of the accused and on theway, they saw Shaji, the accused along with his friends and theaccused was in a drunken stage. Along with Shaji, all of themreached in the house of the accused and they met the parents ofthe accused and all of them advised Shaji and as per the advicegiven by the father and mother of the accused, both Laly andShaji came to their tharavadu house. Thus about one week, theystayed in the tharavadu house and thereafter on 1.12.1995, hereceived a letter from Laly, which is marked as Ext.P2. In thatletter, the deceased Laly wrote, according to PW2, that theaccused assaulted deceased Laly asking her to obtain thebalance Rs.50,000/- and behaved without any love and therefore,Laly had written asking as to what she should do. He had alsostated that Cws.3 and 4 have also received similar letters and onthe basis of the same, the younger brother Biju was sent to thehouse of the accused for bringing the accused and deceased.,but Shaji did not turn up and Biju brought deceased Laly. PW2further stated that on 20.12.1995, Shaji along with two friends Crl.A.Nos.1466 & 2082 of 2006:-21-:came in their house after consuming liquor in a vehicle to takeLaly back. According to PW2, as she was not in good condition,the friends returned and PW2 invited both the accused and Lalyto his house on 22.12.1995 and the matters were discussed inthe presence of Mathai, brother of PW2 and Sebastian and Baby,brother-in-laws. PW2 says that they advised Shaji to livedecently, properly and in good behaviour. It is also stated byPW2 that they had assured Shaji to pay the remainingRs.50,000/- before 30th March and thus, on 23.12.1995, both Lalyand Shaji, accused went back to the tharavadu in good relation.It was also stated that the sister of the accused viz., Sherly wasalso staying in the tharavadu of PW2 for her study. Thus,according to PW2, on 24.12.1995, the deceased Laly andaccused Shaji went to his house along with Sherly. It is,thereafter, he received the information regarding the incident.During the cross-examination, PW2 says that deceased Lalyused to come to tharavadu house along with the accused andreside there. The accused was not taking liquor when he cameto the house of PW2 and he was not having any mis-behavior.He had stated that the accused is a volley ball player. PW2 hadadmitted that he himself and his wife sent letters to the deceased Crl.A.Nos.1466 & 2082 of 2006:-22-:and when deceased Laly came in the house, she had talkedabout the harassment. It was also stated that she had informedhim through letters also. 18.PW3 had specifically stated that the father of theaccused requested him with weeping eyes to advise the accusedto become a good man. He had also stated that he too advisedthe accused. In the chief-examination itself, PW3 stated thatwhenever he advised him, he used to say that he was ruined byhis friends and the same would not be repeated. According toPW3, the accused and the deceased resided togetherharmoniously for five to six months. PW3 stated that often, theaccused demanded the ornaments and money from Laly for thepurpose of consumption of liquor and if the same was not given,he used to assault her. Through letters also, the same wasinformed to him. PW3 stated in terms of PW2 regarding thesending of telegram by father and taking back of deceased Lalyto the house of the accused. PW3 has also stated that the ringwhich was given by deceased Laly to Shaji was also sold fortaking toddy. Ext.P4 letter was marked through PW3. During thecross-examination, when a question was put to PW3 that whetherLaly was in agony because, the accused used to keep away from Crl.A.Nos.1466 & 2082 of 2006:-23-:the house days together when gone for playing volley ball. It wasanswered that her agony was in taking liquor and assaulting heron returning after volley ball play. PW4 is the sister of deceasedLaly. She stated that for five to six months, after the marriagethere was no problem and thereafter, the deceased faced severaldifficulties. She stated that for the remaining dowry andornaments, she was subjected to harassment. PW4 says thatLaly told her that the accused used to demand her ornamentsand if the same was not given, he would assault her and thus,when once Laly came, she showed the marks of assault. Exts.P7to P10 were marked through PW4. PW4 also stated that shewas not aware whether accused was going for volley ball play.She had categorically stated that the deceased Laly told her thatwhen the accused had gone along with the friends, he will comeback only after three or four days.19.Thus, going by the oral testimonies of Pws.2 to 4, itappears that they gave evidence regarding the harassmentbased upon what they had heard from the deceased and alsowritten to them by the deceased. From Ext.P2 letter written toPW2 which is dated 1.12.95, it is clear that the accused washaving quarrel with her demanding ornaments and the parents of Crl.A.Nos.1466 & 2082 of 2006:-24-:accused advised her not to give ornaments without theirknowledge. In Ext.P2 , it is written as follows:-“ഷ(cid:2)ജ(cid:4) എന(cid:8)(cid:9) എനന(cid:2)ട(cid:12) വഴക(cid:2)ണ(cid:12).സ(cid:19)ര(cid:21)(cid:9)ക(cid:23)(cid:2)ട(cid:24)ക(cid:2)ന പറഞ(cid:12). അച(cid:2)ചന(cid:24)(cid:9) അമയ(cid:24)(cid:9)പറഞ(cid:24) ഞങളറ(cid:4)യ(cid:2)ക% ക(cid:23)(cid:2)ട(cid:24)കര(cid:24)%(cid:12)എന(cid:12).'' ഞ(cid:2)കനന(cid:2)ണ(cid:24) ക(ന)ണ%(cid:12).ഇന(cid:4) ആക(cid:23)യ(cid:24)ള%(cid:12)(cid:23)(cid:24)റച(cid:12)സ(cid:19)ര(cid:21)മ(cid:2)ണ(cid:12). എന(cid:24)(cid:9) ഷ(cid:2)ജ(cid:4) പണ(cid:9)ആവശ1ക2ട(cid:24)(cid:9). എന(cid:24)(cid:9) എകന സ(cid:19)ര(cid:21)(cid:9)ന((cid:2)ദ(cid:4)ച(cid:24) ക(cid:23)(cid:2)ണ(cid:12) പ4ഡ(cid:4)2(cid:4)ക(cid:24)(cid:23)യ(cid:2)ണ(cid:12). ഈവ4ട(cid:4)ക8 ഒര(cid:2)വശ1ത(cid:4)ന(cid:24)(cid:9) അല.ഷ(cid:2)ജ(cid:4)ക(cid:12) ധ(cid:8)രതട(cid:4)ക(cid:2)ന(cid:2)ണ(cid:12). സ(cid:19)ര(cid:21)(cid:9)ക(cid:23)(cid:2)ട(cid:24)ത(cid:4)കലങ(cid:4)ല ഷ(cid:2)ജ(cid:4)കയ ഇന(cid:4) (cid:23)(cid:2)ണ(cid:4)ലഎന(cid:2)ണ(cid:12) പറയ(cid:24)ന%(cid:12). എവ(cid:4)കടകയങ(cid:4)8(cid:24)(cid:9)നപ(cid:2)യ(cid:4) (cid:23)(cid:4)ടന(cid:12) (cid:23)(cid:24)ട(cid:4) വ(cid:4)ട(cid:12) വര(cid:24)(cid:9). ന(cid:4)ങളപറയ(cid:24)ന%(cid:12) എന(cid:24)(cid:9) ഞ(cid:2)ന ന(cid:23)ളക(cid:2)ന%)(cid:2)റ(cid:2)ണ(cid:12). ഒര(cid:24) ദ(cid:4)വസകമങ(cid:4)8(cid:24)(cid:9)സനന(cid:2)ഷനത(cid:2)ട(cid:24)(cid:23)(cid:8)ട(cid:4) ജ4വ(cid:4)ച(cid:2)ല മ%(cid:4). സ(cid:19)ര(cid:21)(cid:9) ക(cid:23)(cid:2)ട(cid:24)ക(cid:2)കമന(cid:24) വച(cid:2)ല എത%ദ(cid:4)വസനതക(cid:12) (cid:23)(cid:2)ണ(cid:24)(cid:9). അ%(cid:24) (cid:23)ഴ(cid:4)ഞ(cid:2)ലപ(cid:4)കനയ(cid:24)(cid:9) ആവശ1ക2ട(cid:2)ല ഞ(cid:2)കനന(cid:2) ക()(cid:24)(cid:23).എന(cid:4)കറ(cid:4)യ(cid:4)ല (cid:23)(cid:24)ഞ(cid:2)കഞ ഞ(cid:2)കനന(cid:2)ക()(cid:24)(cid:23).പണനത(cid:2)ട(cid:24)(cid:9) സ(cid:19)ര(cid:21)നത(cid:2)ട(cid:24)മ(cid:24)ളആരത(cid:4)യല(cid:2)ക% സ(cid:12)നനഹ(cid:9) എന(cid:2)ണ(cid:12) എന(cid:12)ഷ(cid:2)ജ(cid:4)കറ(cid:4)യ(cid:4)ല. എല(cid:2)വര(cid:24)കടയ(cid:24)(cid:9) മ(cid:24)നപ(cid:4)ലനന(cid:2)യ(cid:4) അഭ(cid:4)നയ(cid:4)ച(cid:12) (cid:23)(cid:2)ണ(cid:4)ക(cid:24)(cid:9).ഞ(cid:2)കനന(cid:2)ണ(cid:12) ക(ന)ണ%(cid:12). ഒന(cid:24)(cid:9)എന(cid:4)കറ(cid:4)യ(cid:4)ല. ആര(cid:24)(cid:9) വന(cid:4)കലങ(cid:4)8(cid:8)(cid:9)വലന2(cid:2)ഴ(cid:24)(cid:9) ഒര(cid:24) (cid:23)കതങ(cid:4)8(cid:24)(cid:9) എഴ(cid:24)%(cid:4)നല.” (emphasis supplied)Ext.P4 is another letter dated 1.12.1995 addressed to PW3. Inthe said letter, it is written as follows:- Crl.A.Nos.1466 & 2082 of 2006:-25-:ഷ(cid:2)ജ(cid:4) ഇന2(cid:2)ള പ(cid:24)%(cid:4)യ ആയ(cid:24)ധ(cid:9)“എട(cid:24)ത(cid:4)ര(cid:4)ക(cid:24)(cid:23)യ(cid:2)ണ(cid:12) ആവശ1ക2ട(cid:24)ന സ(cid:19)ര(cid:21)(cid:9)ക(cid:23)(cid:2)ട(cid:24)കണ(cid:9). അകലങ(cid:4)ല എനന(cid:2)ട(cid:12) ഇവ(cid:4)ടന(cid:12)കപ(cid:2)യ(cid:12)കക(cid:2)ള(cid:2)ന പറഞ(cid:24). എന(cid:24)(cid:9) എനന(cid:2)ട(cid:12)വഴക(cid:2)ണ(cid:12). ന((cid:2)ദ(cid:4)ക(cid:24)നപണവ(cid:24)(cid:9) സ(cid:19)ര(cid:21)വ(cid:24)(cid:9)ക(cid:23)(cid:2)ട(cid:24)ക(cid:2)ഞ(cid:4)ട(cid:12). അച(cid:2)ചന(cid:24)(cid:9) അമയ(cid:24)(cid:9) പറഞ(cid:24),ഒന(cid:24)(cid:9) ഞങളറ(cid:4)യ(cid:2)ക% ക(cid:23)(cid:2)ട(cid:24)കര(cid:24)%(cid:12)എന(cid:12).'' ആവശ1കമന(cid:2)ണ(cid:12) എന(cid:12) ന((cid:2)ദ(cid:4)ക(cid:24)നC(cid:2)ള അ%(cid:12)'ന(cid:4)ങള(cid:2)ര(cid:24)(cid:9) അറ(cid:4)യണ എകD (cid:23)(cid:8)കട ജ4വ(cid:4)കണകമങ(cid:4)ലഞ(cid:2)ന പറയ(cid:24)ന%(cid:12) %രണ(cid:9)എന(cid:2)ണ(cid:12)പറച(cid:4)ല .' (cid:23)ള(cid:24) (cid:23)(cid:24)ട(cid:4)ച(cid:12) വണ(cid:4)യ(cid:24)(cid:9) (cid:23)(cid:8)ട(cid:4) (cid:23)(cid:8)ട(cid:24)(cid:23)(cid:2)നര(cid:2)കട(cid:2)ത(cid:12)നടക(cid:2)ന(cid:2)ണ(cid:12) അല(cid:2)ക% ഇവ(cid:4)ടകത ആര(cid:24)കടയ(cid:24)(cid:9)ആവശ1ത(cid:4)നല. (cid:23)(cid:24)കറ ദ(cid:4)വസമ(cid:2)യ(cid:4) എനന(cid:2)ട(cid:12)പറയ(cid:2)ന %(cid:24)ടങ(cid:4)യ(cid:4)ട(cid:12). അഥവ(cid:2) ക(cid:23)(cid:2)ട(cid:24)ക(cid:2)കമന(cid:12)വച(cid:2)ല %കനയ(cid:24)(cid:9) അ%(cid:12) %4രന(cid:12)(cid:23)ഴ(cid:4)യ(cid:24)നC(cid:2)ള അ%(cid:4)ല(cid:23)(cid:8)ട(cid:24)%ല ആവശ1ക2ട(cid:24)(cid:9). ഷ(cid:2)ജ(cid:4)ക(cid:12) പണനത(cid:2)ട(cid:24)ളആരത(cid:4)യ(cid:2)ണ(cid:12). സ(cid:12)നനഹ(cid:9) എന(cid:2)കണന(cid:12) അറ(cid:4)യ(cid:4)ല.അവ(cid:4)കടകയല(cid:2)(cid:9) വര(cid:24)നC(cid:2)ള നലവന(cid:2)(cid:23)(cid:2)ന നന(cid:2)ക(cid:24)(cid:9).എല(cid:2)(cid:9) അഭ(cid:4)നയമ(cid:2)ണ(cid:12).എന(cid:4)കറ(cid:4)യ(cid:4)ല. ഇങകന നപ(cid:2)യ(cid:2)ല എങകനജ4വ(cid:4)ക(cid:24)കമന(cid:12). ഒര(cid:24) തപ%4കയ(cid:24)മ(cid:4)ല. ഒര(cid:24) പണ(cid:4)യ(cid:24)(cid:9)എട(cid:24)ക(cid:2)ന (cid:23)ഴ(cid:4)യ(cid:4)ല. എന(cid:24)(cid:9) (cid:23)(cid:24)ട(cid:4)ക(cid:2)ന പപസക(cid:23)(cid:2)ട(cid:24)ക(cid:24)(cid:23)യ(cid:2)കണങ(cid:4)ല എല(cid:2)വകരയ(cid:24)(cid:9) (cid:23)(cid:2)ര1മ(cid:2)ണ(cid:12).(cid:23)(cid:24)ട(cid:4) (cid:23)ഴ(cid:4)ഞ(cid:2)ല പ(cid:4)കന ആകരയ(cid:24)(cid:9) (cid:23)ണ(cid:24) (cid:23)(cid:8)ട(cid:2).((cid:4)8ന2(cid:2)ള ഞ(cid:2)നന(cid:2)രക(cid:24)(cid:9) സ(cid:19)ര(cid:21)ത(cid:4)ന(cid:24)നവണ(cid:4)യനലവഴക(cid:12). അ%(cid:12) ക(cid:23)(cid:2)ട(cid:24)ക(cid:2)കമന(cid:12). എന(cid:2)8(cid:24)(cid:9)അടങ(cid:4)കലങ(cid:4)ല പ(cid:4)കന എന(cid:24) ക()(cid:2)ന(cid:2)ണ(cid:12).” (emphasis supplied)Ext.P5 is the letter addressed to the wife of PW3. That letter isdated 22.11.1995. The major portion of the letter deals withcertain matters which are not relevant in this case. The onlysentence, written in this letter referring to the accused is that Crl.A.Nos.1466 & 2082 of 2006:-26-:“Shaji(accused) is just going on with volley ball play”. Ext.P7 isthe letter dated 14.11.1995 addressed to PW4, in which she hadwritten that “Shaji/accused was thus going on volley ball playand drinking” and the same is for the reason that he had notloved to anybody. Whenever somebody comes, he acts as agood man. She had also written that she was not going to askanything to him and it was her fate. In Ext.P8 letter dated5.12.1995 also, she addressed to PW4. In the letter, it is writtenas follows:-“ഷ(cid:2)ജ(cid:4)യ(cid:2)കണങ(cid:4)ല ഇനക8 നപ(cid:2)യ%(cid:2)ണ(cid:12). ഇന2(cid:2)ഴ(cid:24)(cid:9)വന(cid:4)ല. രണ(cid:12) മ(cid:8)ന(cid:12) ദ(cid:4)വസ(cid:9) മ(cid:24)നപ(cid:12) എനന(cid:2)ട(cid:12)വഴക(cid:2)യ(cid:4)ര(cid:24)ന(cid:24). ആവശ1ക2ട(cid:24)ന സ(cid:19)ര(cid:21)(cid:9)ക(cid:23)(cid:2)ട(cid:8)ക(cid:2)ഞ(cid:4)ട(cid:12). ക(cid:23)(cid:2)ട(cid:24)ത(cid:4)കലങ(cid:4)ല എനന(cid:2)ട(cid:12)ഇവ(cid:4)കട ന(cid:4)ന(cid:12) നപ(cid:2)(cid:23)(cid:2)ന പറഞ(cid:24). ഞ(cid:2)ന4ക(cid:2)ര1(cid:9)അച(cid:2)ചനന(cid:2)ട(cid:24)(cid:9) അമനയ(cid:2)ട(cid:24)(cid:9) പറഞ(cid:24). അവരപറഞ(cid:24) ആവശ1കമന(cid:2)ണ(cid:12) എനറ(cid:4)ഞ(cid:4)ട(cid:12)എല(cid:2)വര(cid:24)മറ(cid:4)ഞ(cid:4)ട(cid:12)ക(cid:23)(cid:2)ട(cid:24)കണകമങ(cid:4)ലക(cid:23)(cid:2)ട(cid:24)ക(cid:2)കമന(cid:12). അങകന പറഞ(cid:4)കട(cid:2)ന(cid:24)(cid:9)സമ%(cid:4)ച(cid:4)ല. ധ(cid:8)രതട(cid:4)ച(cid:12) (cid:23)ളയ(cid:2)ന(cid:2)ണ(cid:12) എല(cid:2)(cid:9).അമ പറഞ(cid:24) ന(cid:4)കD ആങളമ(cid:2)ര(cid:24)(cid:9) (cid:23)(cid:8)ട(cid:4) അറ(cid:4)ഞ(cid:4)ട(cid:12)ക(cid:23)(cid:2)ട(cid:24)കണകമങ(cid:4)ല ക(cid:23)(cid:2)ട(cid:24)നത(cid:2) എന(cid:12). ഞ(cid:2)നഅ%ന(cid:24)സര(cid:4)ച(cid:12) (cid:23)കതഴ(cid:24)%(cid:4). അ%(cid:12) (cid:23)ഴ(cid:4)ഞന2(cid:2)ളപറയ(cid:24)(cid:23)യ(cid:2)ണ(cid:12). ന4 %ര(cid:24)നമ(cid:2) എനറ(cid:4)യ(cid:2)ന'പറഞ%(cid:2)ണ(cid:12)എന(cid:12).' എന2(cid:2)ഴ(cid:24)(cid:9) എനന(cid:2)ട(cid:12) പറയ(cid:24)(cid:9) ന4 സ(cid:19)ര(cid:21)(cid:9)'%ന(cid:4)കലങ(cid:4)ലഎകന ഇന(cid:4) (cid:23)(cid:2)ണ(cid:4)ലഎന(cid:12).' ഏക%ല(cid:2)(cid:9) ര4%(cid:4)യ(cid:4)ല ആണ(cid:12) എകനപ4ഡ(cid:4)2(cid:4)ക(cid:24)നക%നന(cid:2). എന(cid:4)കറ(cid:4)യ(cid:4)ല Crl.A.Nos.1466 & 2082 of 2006:-27-:ഞ(cid:2)കനന(cid:12)ക()(cid:24)കമന(cid:12). എന(cid:24) ക()(cid:2)ന(cid:2)ണ(cid:12)എന(cid:4)ക(cid:2)വ(cid:24)(cid:23). ഞ(cid:2)ന ആര(cid:24)മ(cid:4)ല(cid:2)തവള(cid:2)യ(cid:4)നപ(cid:2)യ(cid:4)കല. ആര(cid:24)(cid:9) (cid:23)(cid:2)ണ(cid:2)ക% (cid:23)(cid:24)കറ (cid:23)രയ(cid:24)(cid:9).അ%(cid:4)നല(cid:2)ക% എന(cid:4)കകന(cid:24) ക()(cid:2)ന(cid:2)വ(cid:24)(cid:9). ന(ച(cid:4)ഇക%(cid:2)ന(cid:24)(cid:9) നവകറ ആനര(cid:2)ട(cid:24)(cid:9) പറയര(cid:24)%(cid:12). അവ(cid:4)കടഎല(cid:2)(cid:9) വര(cid:24)നC(cid:2)ള നലവന(cid:2)യ(cid:4) അഭ(cid:4)നയ(cid:4)ച(cid:12)(cid:23)(cid:2)ണ(cid:4)ക(cid:24)(cid:9). നന(cid:2)(cid:23)(cid:24)(cid:9) എന(cid:24)ളള തപ%4കയ(cid:4)ലഓനര(cid:2) ദ(cid:4)വസവ(cid:24)(cid:9) %ളള(cid:4) ന4ക(cid:24)ന(cid:24). എകDവ(cid:4)ഷമങള മനസ(cid:4)8(cid:2)ക(cid:2)ന ആര(cid:24)മ(cid:4)ല.ന(ച(cid:4)കയങ(cid:4)8(cid:24)(cid:9) ഒര(cid:2)ശ(cid:19)(cid:2)സത(cid:4)ന(cid:12) വലന2(cid:2)ഴ(cid:24)(cid:9) ഒര(cid:24)(cid:23)കതങ(cid:4)8(cid:24)(cid:9) അയകണ(cid:9). പട(cid:4)ണ(cid:4)യ(cid:2)കണങ(cid:4)8(cid:24)(cid:9)ഒര(cid:4)റ(cid:24)സമ(cid:2)ധ(cid:2)ന(cid:9) (cid:23)(cid:4)ട(cid:4)യ(cid:2)ല മ%(cid:4)യ(cid:2)യ(cid:4)ര(cid:24)ന(cid:24).ഇക%(cid:2)ന(cid:24)മ(cid:4)ല(cid:2)ക% ഞ(cid:2)ന(cid:4)ങകന ന4റ(cid:4)കഴ(cid:4)യ(cid:24)ന(cid:24).ന(ച(cid:4) വ(cid:4)ഷമ(cid:4)കര(cid:24)%(cid:12). എകD (cid:23)(cid:24)കറ വ(cid:4)ഷമങളഎഴ(cid:24)%(cid:4)കയന(cid:24) മ(cid:2)ത%(cid:9).” (emphasis supplied)Ext.P9 is another letter dated 19.1.1995 written to PW4 by thedeceased. In this letter it is written as follows:-“ഷ(cid:2)ജ(cid:4) അങകന പന(cid:24)(cid:23)ള(cid:4)യ(cid:24)മ(cid:2)യ(cid:4)കയ(cid:2)കനടക(cid:24)ന(cid:24). xxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx xxxxxxxx xxxxxxxx xxxxxxxxxxxxxx xxxxxx xxxxxxxx xxxxxx xxxxxx xxxxxxx xxxxxx xxxxxx xxxxxx xxxxxxപ(cid:4)കനയ(cid:24)(cid:9) (cid:23)ഴ(cid:4)ഞ ഞ(cid:2)യറ(cid:2)ഴ(cid:12)(യ(cid:24)(cid:9) (cid:23)(cid:24)ട(cid:4)ച(cid:4)ട(cid:12)നനര(cid:9) കവള(cid:24)ത(cid:12) 4 മണ(cid:4)യ(cid:2)യന2(cid:2)ള ആണ(cid:12) വന%(cid:12). എത% പറഞ(cid:2)8(cid:24)(cid:9) ആകരയ(cid:24)(cid:9) നപട(cid:4)യ(cid:4)ല. ഇന2(cid:2)ളഇന(cid:4) (cid:23)(cid:24)ട(cid:4)ക(cid:4)ല എന(cid:24) പറഞ(cid:12)നടക(cid:24)ന(cid:24). ഇന(cid:4)എന(cid:2)ണ(cid:12) എനറ(cid:4)യ(cid:4)ല ന(cid:23)ട(cid:12) %4രക(cid:24)ന%(cid:12). ന(ച(cid:4)ഇക%(cid:2)ന(cid:24)(cid:9) ആനര(cid:2)ട(cid:24)(cid:9) പറയര(cid:24)%(cid:12). “ (emphasissupplied)Ext.P10 is also a letter addressed to PW4, in which the date isnot clear. But from the seal of the Post Office, it appears to be Crl.A.Nos.1466 & 2082 of 2006:-28-:between 5.1.1995 and 10.1.1995. In this letter, it is written asfollows:-“ഇനക8 പവ(cid:23)(cid:24)നനര(cid:9) ഷ(cid:2)ജ(cid:4) നപ(cid:2)യ%(cid:2)ണ(cid:12) ഇ%(cid:24)വകരയ(cid:24)(cid:9) വന(cid:4)ട(cid:4)ല. ആദ1(cid:9) പപസ ക(cid:23)(cid:2)ട(cid:24)ക(cid:2)നപറഞ(cid:12) വഴക(cid:12) (cid:23)(cid:8)ട(cid:4). ഇല(cid:2) എന(cid:12)പറഞന2(cid:2)ളനമ(cid:2)%(cid:4)ര(cid:9) ക(cid:23)(cid:2)ട(cid:24)ക(cid:2)ന പറഞ(cid:12) ഭയങരവഴക(cid:2)യ(cid:4)ര(cid:24)ന(cid:24) . xxxxxxxx xxxxxxxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxന((cid:2)ദ(cid:4)ക(cid:24)ന പപസ എട(cid:24)ത(cid:12) ക(cid:23)(cid:2)ട(cid:24)ത(cid:4)കലങ(cid:4)ലഅനനര(cid:9) വഴക(cid:2)ണ(cid:12). ” (emphasis supplied)Going by the depositions of Pws.2 to 4 and the letters written bythe deceased i.e., Exts.P2,P4,P5 and P7 to P10, a prudent mancan easily realize that the deceased was very much concernedand in agony with the bad and indecent character of the accusedin taking liquor and his extravagant character in spending moneyfor the same with his friends. It is also crystal clear from her ownwords of the deceased that the deceased was put in troubleconnected with the demand for money or ornaments for takingliquor. After perusal of the above letters, it can be seen that innone of the above letters, the deceased had written or mentionedabout the demand of dowry amount or ornaments towards thesame. It is also clear from the deposition of Pws.2 to 5 that themain grievance of the deceased was with respect to the above Crl.A.Nos.1466 & 2082 of 2006:-29-:mentioned character of the accused and that is why thesewitnesses advised the accused to lead a normal and decent lifeafter deviating from the habit of taking liquor. The learnedcounsel pointed out that when PW13 prepared Ext.P37 scenemahazar, he had seized about 31 inland letters and 2 post cardswhich were in the address of the deceased written by the variouspersons including the brother of the deceased. But theprosecution did not produce and mark those letters. I have gonethrough said letters and none of those letters contain anythingabout the demand of balance dowry amount from the part of theaccused and the suggestions or remedy suggested by thesenders of those letters. In view of the above facts andcircumstances, the statement made by the witnesses during theirexamination as the prosecution witnesses with respect to thedemand of Rs.50,000/- as the balance dowry amount can betreated as only an interested and exaggerated version made bythem.20.Another set of evidence proposed by the prosecutionto prove the case against the accused is the oral evidence ofPws.1 and 6 to 8. PW1 is the person who launched Ext.P1information to PW13 A.S.I., Iritty Police Station, based upon Crl.A.Nos.1466 & 2082 of 2006:-30-:which Ext.P1(a) F.I.R. was registered in the Police Station. Whenhe was examined, he was declared as hostile since he disowneda portion of the statement in Ext.P1 and in the statement given tothe Investigating Officer. Going by Ext.P1, it can be seen thatthere is no valuable material attributed against the accused tocanvass a conviction under Section 304B of I.P.C. Ext.P40 is thecontradiction marked through PW1. The other three witnessesnamely, Pws.6,7 and 8 were cited to prove the prosecution caseespecially, with respect to the demand of fixation of dowry, thealleged persistent demand from the part of the accused for theunpaid portion of the dowry and also the harassment meted outby him against the deceased on the preceding days of theincident. Besides recording the statement of those witnessesunder Section 161 of Cr.P.C., their statements were got recordedunder Section 164 of Cr.P.C. by PW10, the then Judicial FirstClass Magistrate, Kuthuparamba. But when these witnesseswere examined during the trial, they turned hostile. Thecontradictions (Exts.P17 to P34) of the witnesses namely, PWs.6to 8 were marked as contradiction with respect to their respectivestatement under Section 164 to the Police. When PW6 wasexamined through him, Exts.P17 to P28 were marked as the Crl.A.Nos.1466 & 2082 of 2006:-31-:contradiction with respect to his 164 statement before PW10. Inthe case of PW7, Exts.P29 to P33 were marked and Ext.P34 wasmarked with respect to PW8. When these witnesses wereexamined, they admitted before the trial court that they havemade such a statement as per the contradiction marked, butdeposed before the court that the same was made as per thethreat and compulsion of the police. The learned PublicProsecutor submits that when these witnesses were questionedunder Section 161 of Cr.P.C., they had correctly deposed beforethe Police and since they were closely related to the accused,with an abundant caution, their statements were got recordedunder Section 164 of Cr.P.C. and when they were examined inthe trial court, they turned hostile towards the prosecution onlywith a view to save the accused from the penal liability and withthe above purpose, they were telling lie before the court contraryto their own statement made by them before the Police as well asPW.10. Thus, according to the learned Public Prosecutor,Exts.P17 to P34 and P40 to P43 can be acted upon for findingthe guilt of the accused. As these witnesses gave statementbefore PW10 under Section 164, the same can be treated asvaluable piece of evidence against the accused. Crl.A.Nos.1466 & 2082 of 2006:-32-:21.On the other hand, the learned counsel for theappellant submits that as pointed out earlier, even if Ext.P1 istaken as true there is nothing against the accused to attract thealleged offence. Learned counsel pointed out that the procedureadopted by PW.10 is against the law and the procedure whichought to have been complied with by PW-10 in the matter ofrecording statement of witnesses under Section 164 of Cr.P.C.Learned counsel invited my attention to the statement of thewitnesses recorded by PW10 under Section 164 of the Cr.P.C. Itis pointed out that there is no material or endorsement on thesestatements to show that the Magistrate had administered oath onthe witnesses and they gave a statement, after taking oath. It isalso pointed out by the learned counsel that in the case of Pws.7and 8, nothing is discernible as to what are the steps taken by theMagistrate to ensure that those witnesses were giving evidencefreely and voluntarily. The learned counsel also invited myattention to Rule 70 contained in Chapter X of the Criminal Rulesof Practice, Kerala, 1982. Thus, it is submitted that thesestatements are not in accordance with the above procedureprescribed by law and the same cannot be acted upon. Goingby the question formulated by PW10 with respect to PW6, it can Crl.A.Nos.1466 & 2082 of 2006:-33-:be seen that those questions are not in respect of the terms ofSection 164 of the Cr.P.C. From the above. It appears that thestatements of Pws.6,7 and 8 were not recorded in terms of theprovisions contained in Section 164 of the Cr.P.C. However, on aclose reading of the statement, it can be seen that the same aretainted and invalid and inadmissible in evidence in view of sub-section(2) and (5) of Section 164 of Cr.P.C. Therefore, theevidence sought to be produced through Pws.1,6,7 and 8 areliable to be rejected as the same are inadmissible .Therefore,absolutely there is no evidence to prove any incident or any factconnected with any incident taken place at the matrimonial houseof the deceased. In the light of the above facts andcircumstances, I am of the view that the prosecution hasmiserably failed to establish that there was any demand from thepart of the accused connected with dowry.22.It is pertinent to note that in order to attract Section304B of I.P.C., the prosecution has to show that soon before thedeath of Laly, she was subjected to cruelty or harassment by theaccused. As I have already found, the prosecution has miserablyfailed to prove that the accused had demanded dowry ascontemplated by Section 304B. It is also found that the Crl.A.Nos.1466 & 2082 of 2006:-34-:prosecution has failed to further prove that the deceased wassubjected to any harassment or cruelty connected with thedemand of dowry. Even if in cases, the above two aspects areproved or established, the prosecution has a further duty to showthat soon before the death of the deceased, she was subjected tocruelty or harassment. In order to avail of the presumption underSection 113B of the Act, the prosecution has to plead and provethat soon before the death of the deceased, she was subjected tocruelty or harassment for or in connection with any demand fordowry. If the above facts are proved, the statutory presumptioncan be drawn against the person, against whom the allegation ismade and caused the dowry death. As pointed out earlier,absolutely there is no material to show any immediateprovocation on the part of the deceased to commit suicide. So inthat regard, the prosecution is a complete failure. Besides theabove, it is relevant to note that PW2 and all other adamantwitnesses of the prosecution stated about certain developmentsthat took place between the period from 5.12.1995 to 24.12.1995.PW2 during his chief examination has stated as follows:-'5.12.95-ല CW-4-ന(cid:24)(cid:9) 8(cid:2)8(cid:4)യ(cid:24)കട (cid:23)ത(cid:12)വന(cid:4)ര(cid:24)ന(cid:24). അ%(cid:4)കD അട(cid:4)സ(cid:2)നത(cid:4)ല (10th Crl.A.Nos.1466 & 2082 of 2006:-35-:page begins) 8(cid:2)8(cid:4)കയയ(cid:24)(cid:9) ഷ(cid:2)ജ(cid:4)കയയ(cid:24)(cid:9)%റവ(cid:2)ട(cid:4)ന8ക(cid:12) (cid:23)(cid:8)ട(cid:4) ക(cid:23)(cid:2)ണ(cid:24) വര(cid:2)ന ഇളയഅന(cid:24)ജന ബ(cid:4)ജ(cid:24)വ(cid:4)കന അയച(cid:24). ഷ(cid:2)ജ(cid:4) വന(cid:4)ല.8(cid:2)8(cid:4)കയ (cid:23)(cid:8)ട(cid:4) ബ(cid:4)ജ(cid:24) %റവ(cid:2)ട(cid:4)ക8ത(cid:4). 20 -12-95-ല ഷ(cid:2)ജ(cid:4)യ(cid:24)(cid:9) രണ(cid:24) (cid:23)(cid:8)ട(cid:24)(cid:23)(cid:2)ര(cid:24)(cid:9) മദ1പ(cid:4)ച(cid:12)ഒര(cid:24)വണ(cid:4)യ(cid:24)മ(cid:2)യ(cid:4) 8(cid:2)8(cid:4)കയ ക(cid:23)(cid:2)ണ(cid:24) നപ(cid:2)(cid:23)(cid:2)ന വന(cid:24).ഷ(cid:2)ജ(cid:4)ക(cid:12) സ(cid:19)നബ(cid:2)ധ(cid:9) ഇല(cid:2)%(cid:4)ര(cid:24)ന%(cid:4)ന(cid:2)ല ഞങളഷ(cid:2)ജ(cid:4)നയയ(cid:24)(cid:9) 8(cid:2)8(cid:4)നയയ(cid:24)(cid:9) അന(cid:12) വ(cid:4)ട(cid:4)ല.(cid:23)(cid:8)ട(cid:24)(cid:23)(cid:2)കര പറഞ(cid:24) വ(cid:4)ട(cid:24). 22-12-95-ല എകDവ4ട(cid:4)ന8ക(cid:12) ഞ(cid:2)ന ഷ(cid:2)ജ(cid:4)നയയ(cid:24)(cid:9) 8(cid:2)8(cid:4)നയയ(cid:24)(cid:9)വ(cid:4)ള(cid:4)ച(cid:12) (11th page begins) അവ(cid:4)കട കവച(cid:12)ഞ(cid:2)ന(cid:24)(cid:9) അന(cid:24)ജന മത(cid:2)യ(cid:4)യ(cid:24)(cid:9) അള(cid:4)യന(cid:2)ര(cid:2)യകസബ(cid:2)സ(cid:12)ററ1ന നബബ(cid:4) എന(cid:4)വര(cid:24)(cid:9) (cid:23)(cid:8)ട(cid:4), 8(cid:2)8(cid:4)നയ(cid:2)ട(cid:24)(cid:9) ഷ(cid:2)ജ(cid:4)നയ(cid:2)ട(cid:24)(cid:9) ഞങള സ(cid:9)സ(cid:2)ര(cid:4)ച(cid:24).ഷ(cid:2)ജ(cid:4)കയ ഞങള നന(cid:2)യ(cid:4) ജ4വ(cid:4)ക(cid:2)നഉപനദശ(cid:4)ച(cid:24). മ(cid:2)രച(cid:12) 30-ന(cid:24)ളള(cid:4)ല ബ(cid:2)ക(cid:4) 50,000(cid:23) ക(cid:23)(cid:2)ട(cid:24)ക(cid:2)കമന(cid:24) ഞങള ഷ(cid:2)ജ(cid:4)ക(cid:12) വ(cid:2)ക(cid:24)ക(cid:23)(cid:2)ട(cid:24)ത(cid:24). 23-12-95-ന(cid:12) 8(cid:2)8(cid:4)യ(cid:24)(cid:9) ഷ(cid:2)ജ(cid:4)യ(cid:24)(cid:9)നല ര4%(cid:4)യ(cid:4)ല %റവ(cid:2)ട(cid:4)ന8ക(cid:12) മടങ(cid:4) നപ(cid:2)യ(cid:4).ഷ(cid:2)ജ(cid:4)യ(cid:24)കട സനഹ(cid:2)ദര(cid:4) കഷര8(cid:4) ഞങള(cid:24)കട%റവ(cid:2)ട(cid:4)ല ന(cid:4)ന(cid:2)ണ(cid:12) പഠ(cid:4)ച(cid:4)ര(cid:24)ന%(cid:12). (12th pagebegins) 24-12-95-ന(cid:12) 8(cid:2)8(cid:4)യ(cid:24)(cid:9) കഷരള(cid:4)യ(cid:24)(cid:9)ഷ(cid:2)ജ(cid:4)യ(cid:24)(cid:9) (cid:23)(cid:8)ട(cid:4) ഷ(cid:2)ജ(cid:4)യ(cid:24)കട വ4ട(cid:4)ന8ക(cid:12) നപ(cid:2)യ(cid:4).'The other witnesses also deposed in terms of the above lines ofPW2. Thus, it can be seen that the deceased was very muchdespondent in the habit of the accused in taking liquor. At theinstance of PW2 and other relatives of the deceased, theyinterfered with the matter and the matter was settled and on23.12.1995, the accused and the deceased returned to the Crl.A.Nos.1466 & 2082 of 2006:-36-:tharavadu in a harmonious mood and thereafter, from thetharavadu on 24.12.1995, the accused and the deceased went tothe house of the accused along with Sherly, the sister of theaccused. Of course, in the above passage of the deposition ofPW2, there is a sentence to the effect that the remaining dowryamount of Rs.50,000/- was assured to have been paid before 30thof March. That portion is only the interested version of PW2because in the light of the examination of the depositions ofPws.2 to 5 and the letters written by the deceased, I have alreadyfound that there was no demand for dowry from the part of theaccused. If the above portion of the deposition of PW2 isexcluded from the above quoted passage, it can be seen that theconcern of all the parties is with respect to the bad habit of theaccused and finally, the accused was advised to have a good lifeby becoming a decent man and all such matters have beensettled and on such a settlement, the deceased as well as theaccused went back to the house of the accused. If that be so, inthe absence of any evidence and materials regarding anydemand of dowry and harassment connected thereto, it cannotbe said that the accused subjected the deceased Laly to anymental or physical cruelty or harassment connected with the Crl.A.Nos.1466 & 2082 of 2006:-37-:demand for dowry so as to commit suicide on 30.12.1995.Therefore, the prosecution miserably failed to show that after thesettlement of all the issues as deposed by PW2 and otherwitnesses and after her return to the matrimonial home on24.12.1995, the accused had subjected her to cruelty orharassment connected with the demand for dowry. Therefore, nopresumption as envisaged under Section 113B of the Act isavailable in favour of the prosecution. Hence, the finding arrivedon by the court below that the accused has got a burden to showthat the death was not due to the harassment or harassment wasnot for or in connection with the demand for dowry is unfoundedand incorrect. 23.In this juncture, it is relevant to note that the defencehas by examining DW3 proved Ext.D4 letter sent by DW3 to theaccused. Ext.D4 is a letter dated 4.11.1995 written by DW3 tothe accused. DW3 is the wife of the brother of the deceased. InExt.D4, DW3 had written as follows:-8(cid:2)8(cid:4)യ(cid:12)ക(cid:12) ഇന2(cid:2)ഴ(cid:24)(cid:9) പഴയ“പ(cid:4)ണകകമ(cid:2)കകയ(cid:24)നണ(cid:2)ഏറവ(cid:24)(cid:9)? ഇളയ%(cid:2)യ%(cid:24) ക(cid:23)(cid:2)ണ(cid:12)അ2ന(cid:24)(cid:9) അമയ(cid:24)(cid:9)ന(ടത(cid:4)മ(cid:2)ര(cid:8)(cid:9) ഒകക (cid:23)(cid:8)ട(cid:4) 8(cid:2)ള(cid:4)ച(cid:12)വഷള(cid:2)ക(cid:4)യ%(cid:2)ണ(cid:12). (cid:23)(cid:24)റച(cid:24) (cid:23)(cid:8)ട(cid:4) പ(cid:23)(cid:19)% Crl.A.Nos.1466 & 2082 of 2006:-38-:വര(cid:24)നC(cid:2)ള അക%(cid:2)കക മ(cid:2)റ(cid:4) അവള നല(cid:23)(cid:24)ട(cid:4)യ(cid:2)(cid:23)(cid:24)(cid:9).”The accused produced this set of evidence to show thetemperament of the deceased as the deceased was the youngestone. She was brought up in such a fashion and love which wasnot available to her as the wife of the accused. Thus, accordingto the defence, she had committed suicide probably for thereason of such temperament of the deceased. Perusal of theletters written by the deceased also endorses the correctness ofthe above observation.24.On the strength of the decision of the Apex Courtreported in T.Aruntperunjothi v. State through S.H.O.,Pondicherry [(2006) 9 SCC 467], the learned counsel submitsthat the prosecution has failed to establish the essentialingredients of Section 304B of I.P.C. The learned counselsubmits that even if the case of prosecution is accepted as true,what would reveal that there would be a mis-understandingbetween the appellant and the deceased with respect to the badhabit of the accused in taking liquor, but the same is not sufficientto automatically lead to a conclusion that the appellant committedthe offence under Section 304B of I.P.C. Another decision relied Crl.A.Nos.1466 & 2082 of 2006:-39-:on by the learned counsel for the appellant is that of the SupremeCourt in State of Rajasthan v. Teg Bahadur and others [(2004)13 SCC 300]. In the above decision, the Apex Court had held thatthe initial burden is on the prosecution to prove the ingredients ofSection 304B and the burden would not shift on the accusedmainly on the basis of the prosecution that the death hasoccurred within seven years of marriage. Following are the otherdecisions cited by counsel for the appellant in Biswajit Halderalias Babu Halder and others v. State of W.B. [(2008) 1 SCC202], Kans Raj v. State of Punjab and others [(2000) 5 SCC207]. The Apex Court in the decision reported in Arun Garg v.State of Punjab [2004(3) KLT 435 (SC)] had held as follows:-“27. Our attention was alsodrawn to Section 498 A. In our view,Sections 304B and 498A are notmutually exclusive. They deal withdifferent and distinct offences. Inboth the sections, 'cruelty' is acommon element. Under Section 498A,however, cruelty by itself amounts toan offence and is punishable. UnderSection 304B, it is the dowry deaththat is punishable and such death musthave occurred within seven years ofthe marriage. No such period ismentioned in Section 498A. Moreover, Crl.A.Nos.1466 & 2082 of 2006:-40-:a person charged and acquitted underSection 304B can be convicted underSection 498A without a specificcharge being there, if such a case ismade out.”In the present case, the prosecution has failed to show that theaccused was subjecting the deceased to cruelty and harassmentfor or in connection with the demand for dowry. Therefore, thedecision of the Apex Court in Biswajit Halder alias Babu Haldercase (cited supra) [(2008) 1 SCC 202] will squarely apply in thiscase. In the above case, the Supreme Court had also held thatmere evidence of cruelty and harassment is not sufficient to bringin application to Section 304 of I.P.C. Therefore, I am of the viewthat the conviction against the accused under Section 304B is notsustainable. It is also relevant to note that the initial burden isalways on the prosecution to establish the essential ingredients ofSection 304B read with Section 113B of the Evidence Act. In thepresent case, the prosecution has miserably failed to prove theessential ingredients of Section 304B demand of dowry by theaccused. So the finding of the trial court that the accused failedto discharge his burden is without any basis in the light of thedecision of the Supreme Court in State of Rajasthan v. Teg Crl.A.Nos.1466 & 2082 of 2006:-41-:Bahadur and others [(2004) 13 SCC 300]. In the decision inT.Aruntperunjothi v. State through S.H.O., Pondicherry[(2006) 9 SCC 467], the Supreme Court had held that whatwould constitute “soon before her death” depends upon thefacts and circumstances of each case. In the present case, as Ipointed out earlier, after the settlement of the issue between theaccused and the relatives of the deceased, both the accused aswell as the deceased went back to the matrimonial home on24.12.1995 and no evidence is adduced by the prosecution toshow that something had happened after 24.12.1995. In theabsence of any material showing the demand for dowry andharassment based upon that, after 24.12.1995 it cannot be saidthat the accused subjected the deceased to harassment orcruelty connected with the demand for dowry, soon before herdeath. In the light of the above settled position of law andapplication of the above authority in the facts and circumstancesof the present case, I am of the view that the order of convictionpassed by the court below is not sustainable and the same isliable to be set aside. Crl.A.Nos.1466 & 2082 of 2006:-42-:25.In the light of the above discussion and the materialand evidence on record, I am of the view that the prosecution hasmiserably failed to establish that the accused is guilty of theoffence under Section 304B as they failed to establish and provethat soon before the death of deceased Laly, she was subjectedto cruelty or harassment by the accused for or in connection withany demand for dowry. Therefore, the finding of the court belowthat the accused had committed the offence under Section 304 Bof I.P.C. is set aside.26.Though the prosecution has failed to establish theguilty of the accused under Section 304 B of I.P.C, the evidenceadvanced by the prosecution is sufficient to attract Section 498Aof the I.P.C. against the accused. Section 498A runs as follows:-“498A. Husband or relative of husband of awoman subjecting her to cruelty.--Whoever,being the husband of the relative of thehusband of a woman, subjects such woman tocruelty shall be punished with imprisonmentfor a term which may extend to three yearsand shall also be liable to fine. Explanation.-- For the purpose of thissection, “cruelty” means--(a) any wilful conduct which is of sucha nature as is likely to drive thewoman to commit suicide or to cause Crl.A.Nos.1466 & 2082 of 2006:-43-:grave injury or danger to life, limb orhealth (whether mental or physical) ofthe woman; or(b) harassment of the woman wheresuch harassment is with a view tocoercing her or any person related toher to meet any unlawful demand forany property or valuable security or ison account of failure by her or anyperson related to her to meet suchdemand.”Exts.P2,P4,P5 and P7 to P10 letters are written by the deceasedstating her agony and the suffering out of the habit of the accusedin taking liquor and assault when she refused to pay money orhand over ornament for the purpose of consuming liquor. Theabove incidents are sufficient to hold that the deceased Laly wassubjected to cruelty. From the evidence of Pws.2 to 4, it can beseen that the deceased had also stated to them regarding thecruelty meted out against the deceased in connection with themis-behavior of the accused after having taken liquor and alsodemand of ornaments or money for taking liquor. In the light ofExt.D4 letter, it can also be seen that she may not be able towithstand such a bad character of the accused.27. Under the above facts and materials on record, I amof the view that the accused is liable to be punished under Crl.A.Nos.1466 & 2082 of 2006:-44-:Section 498A of I.P.C. and he is accordingly convictedunder Section 498A of I.P.C. With regard to the sentence,considering all the circumstances involved in the case, theaccused/appellant is sentenced to undergo one year simpleimprisonment. Set off is allowed under Section 428 ofCr.P.C.28. In the result, the appeal (Crl.A.No.1466 of 2006) isdisposed of setting aside the conviction of the appellantunder Section 304B of I.P.C., but convicting him underSection 498A of I.P.C. and sentencing him to undergosimple imprisonment for one year. Crl.A.No.2082 of 2006:This appeal is filed under Section 341 of theCode of Criminal Procedure by Pws.1,6,7 and 8 inS.C.No.56 of 1999 on the file of the Additional SessionsCourt, Adhoc-I (Fast Track Court-I), Thalassery.Challenging the conviction and sentence imposed by theSessions Court in the above sessions case, the accusedfiled a connected appeal which I have considered in this Crl.A.Nos.1466 & 2082 of 2006:-45-:judgment separately and I have found that the accused is notguilty under Section 304B of the Indian Penal Code and he isaccordingly acquitted, but he is convicted under Section 498A ofthe I.P.C. While disposing of the appeal preferred by theaccused, I have already discussed the facts and circumstancesand the evidence and the legal question involved in the abovecase and therefore, I am not proposed to repeat the same.2.When the above Sessions Case was disposed of,the learned Sessions Judge considered the evidences ofPws.1,6,7 and 8 and after evaluation and discussion andappreciation of the evidences of these witnesses, the Sessionscourt is of opinion that their evidences are false. Purportedly,based upon such opinion, a complaint was lodged by theAdditional Sessions Judge , Adhoc-I. Thalassery in the court ofthe Chief Judicial Magistrate, Thalassery under Section 195 readwith Section 340 of the Code of Criminal Procedure. This appealis preferred against the said complaint.3.I have heard Mr.T.I.Daniel, learned counselappearing for the appellants in this appeal along withCrl.A.No.1466 of 2006 and also the learned Public Prosecutor. Crl.A.Nos.1466 & 2082 of 2006:-46-:4.The learned counsel very much argued against thepresumption drawn by the trial court that the appellants deviatedfrom their earlier statement suppressing the material facts.Learned counsel pleaded that the appellants have supported thestatement recorded by PW10 and therefore, it cannot bepresumed that they have deviated from the original statementgiven before PW10. Learned counsel pointed out that whilesupporting the prosecution case, what these witnesses havedone was that they deposed before the trial court as to how theymade their statement before PW10. It is also the case of thecounsel that the trial court had already considered the evidenceof these appellants and the accused was convicted based uponsuch evidence and therefore, it was not proper on the part of thecourt to take proceedings against the appellants under Section340 of the Code of Criminal Procedure. Learned counsel furthersubmitted that even if Ext.P1 statement given by PW1 in thePolice Station is accepted as such, there is nothing to connectthe accused with the alleged offence and therefore, it would notamount to giving false evidence and it is also pointed out by thelearned counsel that in the absence of any direct evidence,absolutely there is no material before the trial court to come into a Crl.A.Nos.1466 & 2082 of 2006:-47-:conclusion that what PW1 stated before the court is wrong. On aperusal of Ext.P1, the learned counsel submits that any prudentman can come into a conclusion that what contained in Ext.P1 isa hearsay and therefore, it cannot be treated as a substantialevidence and if so, even if PW1 resiles from Ext.P1, it cannot bea ground for taking proceedings under Section 340 of the Code ofCriminal Procedure. Learned counsel further submitted that thecomplaint was lodged by the Sessions Judge in violation of themandatory provisions of law and also in violation of the procedureprescribed for the same.5.Resisting the appeal, the learned Public Prosecutorsubmitted that the present appellants are close relatives of theaccused in that case and therefore, being the investigatingagency, the Police took steps to get recorded the statement ofthese witnesses under Section 164 of the Code of CriminalProcedure with an abundant caution. Thus, these appellantscorrectly deposed before PW10 in terms of the prosecution caseand the same was true state of affairs which led to the death ofLaly, wife of the accused in the sessions case. When theseappellants were examined in the court, they came up with a newstory so as to deviate from their earlier statement deposed before Crl.A.Nos.1466 & 2082 of 2006:-48-:PW10. Thus, according to the learned Public Prosecutor, theappellants deliberately gave false evidence in the trial court andthe action taken under Section 340 of the Code of CriminalProcedure is fully justified and there is no ground to interfere withsuch proceedings.6.I have carefully considered the contentions advancedby both the counsel for the appellants as well as the PublicProsecutor and also perused the documents, especially the 164statement of Pws.6,7 and 8 recorded by PW10 and also Ext.P1First Information statement lodged by PW1. Before going into themerits of those statements, it is to be noted that Section 193 ofI.P.C. coming under Chapter XI of the Indian Penal Code dealswith 'false evidence and offences against public justice'.Chapter XIV of Cr.P.C. deals with the conditions requisite forinitiation of proceedings, which contained Section 195contemplating prosecution for contempt of lawful authority ofpublic servants for offences against public justice and foroffences relating to documents given in evidence. Again ChapterXXVI of Code of Criminal Procedure contained the provisionsas to offences affecting the administration of justice. Section 340 Crl.A.Nos.1466 & 2082 of 2006:-49-:of Cr.P.C. contained in Chapter XXVI prescribed the procedure tobe followed with respect to the cases mentioned in Section 195.Admittedly, the complaint under challenge in this appeal is filedunder Section 195 read with Section 340 of Cr.P.C. Section 340(1) runs as follows:-“340. Procedure in cases mentioned insection 195.-- (1) When upon an applicationmade to it in this behalf or otherwise, anyCourt is of opinion that it is expedient in theinterests of justice that an inquiry should bemade into any offence referred to in clause(b) of sub-section(1) of section 195, whichappears to have been committed in or inrelation to a proceeding in that Court or, asthe case may be, in respect of a documentproduced or given in evidence in a proceedingin that Court, such Court may after suchpreliminary inquiry, if any, as it thinksnecessary,---(a) record a finding to thateffect;(b) make a complaint thereof inwriting;(c)send it to a Magistrate of thefirst class having jurisdiction;(d)take sufficient security for theappearance for the accused beforesuch Magistrate, or if the allegedoffence is non-bailable and theCourt thinks it necessary so to do,send the accused in custody to Crl.A.Nos.1466 & 2082 of 2006:-50-:such Magistrate; and(e) bind over any person to appearand give evidence before suchMagistrate. “On the basis of the above section, the learned counsel for theappellants submits that before filing the present complaint, thelearned Sessions Judge ought to have conducted an enquiry andonly on a finding as envisaged by Section 340(1)(a) of theCr.P.C., a complaint can be made in writing and takeconsequential proceedings. According to the learned counsel, ona reading of the judgment, what can be seen is the appreciationand evaluation of evidences of Pws.1,6,7 and 8 for the purposeof finding as to whether the accused is guilty or not and there isno separate enquiry or finding. Going by Section 340 of theCr.P.C, I cannot find any illegality in the trial court in notconducting a separate enquiry as submitted by the learnedcounsel for the appellants. But, on a close scrutiny of the abovesection, I am of the view that the steps taken by the trial court willbe justified only if the trial court judge forms an opinion ascontemplated by Section 340(1) of the Cr.P.C. The wordsemployed in Section 340(1) “any Court is of opinion that it isexpedient in the interests of justice that an inquiry should be Crl.A.Nos.1466 & 2082 of 2006:-51-:made into any offence referred to in clause(b) of sub-section(1) ofsection 195” convey a message to the court that unless anopinion is formed that it was expedient in the interest of justicethat an enquiry should be made into any offence referred toabove, the court will not get jurisdiction to invoke furtherproceedings pursuant to Section 340 of Cr.P.C. In the presentcase, nothing is discernible from the judgment that the trial courthas formed an opinion in terms of the above provisions of thesection. In the decision reported in K.Karunakaran v.T.V.Eachara Warrier and another [1978 SCC (Cri) 32], theApex Court had held that at an enquiry held by the Court underSection 340(1) Cr.P.C.,1973, irrespective of the result of the maincase, the only question was whether a prima facie case wasmade out which, if unrebutted, may have a reasonable likelihoodto establish the specified offence and whether it was alsoexpedient in the interest of justice to take such action. Apart fromthe appreciation and evaluation of evidence of Pws.1,6,7 and 8,for the purpose of main case, there is no such finding asdiscussed by the Apex Court in the above decision cited supraand in terms of Section 340(1) of Cr.P.C. Therefore, according tome, the impugned complaint itself is filed in violation of the Crl.A.Nos.1466 & 2082 of 2006:-52-:mandatory provisions contained in Section 340(1) of Cr.P.C. andfor that reason alone, the proceedings against the appellants arenot sustainable. 7.Now the appellants are ordered to be prosecuted forthe offence under Section 193 of the I.P.C. for giving falseevidence and a complaint is filed in that direction. Section 191 ofthe I.P.C. deals with giving false evidence. Under the abovesection, the prosecution has to show that the appellants/accusedwere legally bound by an oath or by an express provision of lawto state the truth or being bound by law to make declaration uponany subject, makes any statement false and which he eitherknows or believes to be false or does not believe to be true.Going by the above provision, it can be seen that unless theappellants are coming under any of the three categoriesmentioned above, no action will lie against them. With respect tothe appellants 2 to 4 namely Pws.6 to 8, it is to be noted thatgoing by their 164 statement, the said statement is not madeafter an oath taken by them or after administration of an oath onthem. So the essential ingredients of Section 191 and 193 areabsent in the case of the above mentioned appellants. In theimpugned judgment, there is no observation or finding by the Crl.A.Nos.1466 & 2082 of 2006:-53-:learned Sessions Judge to the effect that the statement of thewitnesses were recorded under Section 164 after administrationof oath on them and they deposed against such statement. Inthe complaint also, there is no averment to that effect. Therefore,Section 193 of I.P.C. is not attracted against the appellants.8.In this juncture, it is relevant to note that on a closeperusal of Section 164 statement of the appellants 2 to 4, it canbe seen that they were not warned with the consequence of therecording of such statement. It is also clear that PW10 failed totake effective and proper steps to comply with the mandatoryprocedure contained in Section 164 of Cr.P.C. and also Rule 70of the Criminal Rules of Practice, 1982. Though certainquestions were put to the second appellant PW6, the samecannot be treated as full compliance with the procedureprescribed by Rule 70 as well as Section 164 of Cr.P.C. In thecase of Pws.7 and 8, absolutely there is nothing to show that anyquestion is put to them in accordance with the proceduralmandate contained in Section 164 of Cr.P.C. and Rule 70 of theCriminal Rules of Practice. 9.It is pertinent to note that in the Sessions Case, theallegation of prosecution against the accused was that the Crl.A.Nos.1466 & 2082 of 2006:-54-:deceased Laly was subjected to harassment or crueltydemanding dowry and it is also the further case of theprosecution that soon before the death of said Laly, she wassubjected to harassment for or in connection with dowry demand.Admittedly, the appellants namely, Pws.1 and 6 to 8 were citedby the prosecution to examine them in terms of the aboveallegation. After evaluation of the evidence and materials onrecord, after considering the allegation of the prosecution andafter discussing the legal points involved in the case, I havealready found as per this judgment that the above allegation isnot correct and therefore, Section 304 B is not attracted againstthe accused. It is also relevant to note that the allegation ofdowry death attributed against the accused by the prosecution ismainly on the basis of the oral testimonies of the prosecutionwitnesses and certain letters written by the deceased Laly. But,those materials are, even if admitted as correct and true, are notsufficient to prove and substantiate allegation under Section 304B of I.P.C. Therefore, it cannot be said that these witnesseswere deposing against truth or adducing false evidence. In thedecision reported in Chandrapal Singh and others v. MaharajSingh and another [1982 SCC (Cri) 249], the Apex Court had Crl.A.Nos.1466 & 2082 of 2006:-55-:held that mere acceptance or rejection by court of rivalcontentions in affidavit cannot form basis of charge under Section199. The above dictum is applicable in the present case also.Hence, the complaint filed by the Sessions Judge isunsustainable either legally or factually. 10.In this juncture, it is relevant to note that though thestatements of Pws.6,7 and 8 are not recorded, afteradministration of oath on them, the trial court treated the same asevidence on finding the guilt of the accused and in favour of theprosecution. The above approach appears to be incorrect in thelight of the decision reported in Mania v. State of Rajasthan andOrs. [1987(3) Crimes 174]. The Rajasthan High Court in theabove decision had held that it would not be expedient nor in theinterest of justice to prosecute a prosecution witness underSection 193 of I.P.C. when the statement made before the courtappears to be correct and the statement under Section 164 ofCr.P.C. is not correct and a proper explanation is given by thewitness as to why he resiled from his statement made underSection 164 of Cr.P.C. According to me, the above decision issquarely applicable in the present case. As I have already foundthat the prosecution allegation under Section 304B of I.P.C. is Crl.A.Nos.1466 & 2082 of 2006:-56-:incorrect, the evidences of these appellants before the trial courtcannot be said as incorrect or false and they stated before thetrial court the reason for their resilience from the earlier statementrecorded under Section 164 of Cr.P.C. It is well settled that thestatement of a witness recorded under Section 164 of Cr.P.C. isnot a substantive evidence and the use and purpose of suchstatement is either to contradict or to concur. Therefore,considering the entire facts and circumstances involved in thecase, I am of the view that it is not expedient in the interest ofjustice and it is not a fit case to invoke Section 340 of Cr.P.C.and to take prosecution against the appellants for the offenceunder Section 193 of I.P.C.11.The Supreme Court in a decision reported inMohammad Ibrahim v. B.Rama Rao [1976 SCC (Cri) 233] hadheld that mere falsity of statements made is not enough to initiateproceedings unless it is stated and shown that the same shouldhave been made intentionally. In the present case as statedearlier, there is nothing to show that Section 164 statement isrecorded after administration of oath and they resiled or deniedsuch statement deliberately and intentionally giving falseevidence. Since the prosecution has miserably failed to prove Crl.A.Nos.1466 & 2082 of 2006:-57-:the allegation under Section 304B of I.P.C. and as I have foundthat such allegation is incorrect and unfounded, it cannot be saidthat the appellants were giving false evidence.12.In the light of the above discussion and finding,particularly, the facts and circumstances involved in the case, Iam of the view that the prosecution launched against theappellants as C.C.No.221 of 2006 and pending before the ChiefJudicial Magistrate Court, Thalassery is unsustainable andunwarranted. Hence, accordingly the Additional SessionsJudge, Adhoc-I. Thalassery is directed to withdraw the impugnedcomplaint.Thus Crl.Appeal No.2082 of 2006 is allowed directing theAdditional Sessions Judge to withdraw the complaint inC.C.No.221 of 2006 pending before the Chief Judicial MagistrateCourt, Thalassery and Crl.A.No.1466 of 2008 is disposed ofsetting aside the conviction of the appellant under Section 304 Bof I.P.C., but convicting him under Section 498A I.P.C. andsentencing him to undergo simple imprisonment for one year.The period which he had undergone as under trial prisoner isallowed to be set off under Section 428 of Cr.P.C. The accusedis directed to appear before the Sessions Court, Thalassery to Crl.A.Nos.1466 & 2082 of 2006:-58-:receive the sentence on 15th January, 2009. The Sessions Courtis directed to take appropriate steps to implement the sentence. The appeals are disposed of accordingly.SD/- 5th December, 2008. V.K.Mohanan, Judge.MBS/