Allowed

K.M.Sujith, C.NO.2215, Ctrlprison, Knr v. State of Kerala

Kerala HC21 Oct 2009CRL.A/1707/2005

Case brief

AI extract

What is this about?

The High Court acquitted the appellant, convicted of uxoricide, holding the punishment insufficiently proved. The Court quashed the conviction for murder, noting lack of medical evidence for strangulation or stabbing and reproving reliance on inadmissible police statements. It also acquitted the appellant of dowry death and cruelty charges due to lack of evidence regarding dowry demands and subseq

What did the court decide?

The conviction and sentence awarded by the court below are set aside and the accused is acquitted for the offences punishable under Sections 498A and 302 IPC. He shall be set at liberty forthwith unle

K.M.Sujith, C.NO.2215, Ctrlprison, Knr Vs State of… — Criminal Trial and Appeal | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN

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WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931

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CRL.A.No. 1707 of 2005()

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SC.178/2004 of ADDL. SESSIONS COURT NO.I, (AD HOC ), MANJERI.

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CP.25/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI

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APPELLANT(S): PETITIONER

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K.M.SUJITH, S/O.NEELAKANDAN NAMBEESAN,

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CONVICT NO:2215,

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CENTRAL JAIL, KANNUR.

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BY ADV. SRI.S.SACHITHANANDA PAI

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SRI.K.RAMAKUMAR, SENIOR ADVOCATE

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SMT.SARITHA DAVID CHUNKATH

SMT.SMITHA GEORGE

SRI.T.RAMPRASAD UNNI

RESPONDENT(S):

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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PUBLIC PROSECUTOR SRI. NOBLE MATHEW

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON 21/10/2009 DELIVERED THE FOLLOWING:

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K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.

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- - - - Crl. Appeal No. 1707 of 2005

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- - - - Dated this the 21^st day of October, 2009.

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JUDGMENT

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Bhavadasan, J,

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Accused was found guilty of the offence of

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uxoricide. He was therefore convicted and sentenced to suffer

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imprisonment for life and to pay a fine of Rs.10,000/- with a default clause to undergo imprisonment for three years if the fine is not paid.

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The marriage between the deceased and the

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accused took place on 8.2.2002. The accused and the deceased

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were relatives and they had fallen in love. P.W.6, the mother of the accused was closely related to the deceased. But she did not attend the marriage. Even though the couple took up independent residence soon after marriage, later they shifted to

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the house of the accused. At the relevant time they were residing along with the parents of the accused. The accused is

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the third son of P.Ws. 6 and 7. P.W.6, his mother would say that the accused often comes home drunk. On 21.5.2002 the accused returned home late in the night. The room on the eastern side of the house was occupied by the accused and the deceased. P.W.7, the father of the accused opened the door for him on the eventful day when he came late. The accused went to his room. According to the prosecution, a short while thereafter P.W.6, the mother of the accused heard groans and grunts of the deceased from her room. She went near the room. It is the prosecution allegation that P.W.6 had seen the accused dropping M.O.2 can of kerosene and also a lighted match stick. P.W.6 cried aloud and then found that the accused was not in the room. Her cries woke up the other inmates of the house and they rushed to the place. They found Ambily, the deceased engulfed in fire. P.W.6 tried to douse the fire. The victim was removed to the hospital. Initially P.W.3 attended to the victim in Care Well Hospital, Ramanattukara, and on seeing the condition of the patient, referred the victim to the

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Medical College Hospital for better management. She was given first aid by P.W.3. The victim was taken to Koya's Hospital and P.W.17, the doctor attached to the said hospital attended to the patient. Ext.P22 certificate is issued by him. She was admitted in the ICU of the hospital. The next day, the Doctor advised that she be taken to the Medical College Hospital. On 21.5.2002 by about noon the victim was admitted in the Medical College Hospital. P.W.5, the doctor attached to the Medical College Hospital, attended to her and he had issued Ext.P5 certificate, which is the treatment certificate relating to Ambily. On getting information about the incident, P.W.13, the Police Constable attached to Thenjipalam Police Station went to the Medical College Hospital. He found that Ambily was not in a fit condition to give any statement. So he recorded Ext.P6, First Information Statement, furnished by P.W.6. P.W.13 returned to the police station. Based on Ext.P6 first information statement, P.W.16, Sub Inspector of Police registered First Information Report, Ext.P17, for the

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offences punishable under Sections 498A and 307 Indian Penal Code. He prepared Ext.P16 scene mahazar. He recorded the arrest of the accused. Based on Ext.P15(a) confession statement said to have been given by the accused M.Os. 1 and 2 were recovered as per Ext.P15. Meanwhile, P.W.1 had recorded Ext.P1 declaration given by the deceased from the Hospital. P.W.2, the Doctor attached to the Hospital had certified that the victim was fit enough to give statement and Ext.P2 is the certificate issued by him. On 8.6.2002, Ambily, the victim, succumbed to her burn injuries. Investigation was taken over by P.W.18. He had P.W.16 conduct inquest over the body of the deceased and prepare Ext.P20 report. Ext.P21 report was filed before Court incorporating charge under Section 302 Indian Penal Code. In the meanwhile, autopsy was conducted by P.W.4 and Ext.P4 report was furnished by him. P.W.18 obtained site plan, recorded statements of other witnesses and completed the investigation. He laid charge before court.

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JFCM, Parappanangadi took cognizance of the

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offences. On appearance of the accused before the said court, all

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legal formalities were complied with. The learned Magistrate found that the offences are exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Manjeri under Section 209 of Code of Criminal Procedure. The said court made over the case to Additional Sessions Court, Fast Track No.I (Ad Hoc), Manjeri for trial and disposal.

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That court issued summons to the accused and he entered appearance. After hearing both sides, charges were framed for the offences punishable under Sections 498A and 302 Indian Penal Code. To the charges, the accused pleaded not guilty and claimed to be tried. Prosecution therefore had P.Ws. 1 to 18 examined Exts.P1 to P29 marked. M.Os. 1 and 2 were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 of the Criminal

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Procedure Code. He denied all the offences alleged against him and maintained that he is innocent. He would say that on the date of the incident when he returned home, it was Ambily, who had opened the door for him. He claims that thereafter he went to the temple pond to take bath. While taking his bath, he heard cries from his house and he rushed to his house. He found that Ambily was on fire. He fetched a vehicle and took Ambily to Hospital. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence. On an appreciation of the materials before it, the court below found that the prosecution has established the case against the accused and accordingly found the accused guilty. Conviction and sentence already mentioned followed. The said conviction and sentence are assailed in this appeal.

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The question that arises for consideration is whether

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any interference is called for with the judgment of the court below.

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The prosecution case appears to be that after the

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marriage the accused began to ill-treat his wife for several reasons.

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On the date of the incident, the prosecution case is that, the victim

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was stabbed with a knife, thereafter strangulated and set her

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ablaze.

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The court below found the following materials

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sufficient to come to the conclusion that the offences have been

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made out:

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(i) Evidence of P.W.6 taken along with Exts.P7, P7(a) and P7(b).

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(ii) Exts.P9 and P7(c).

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(iii) Evidence of P.W.9.

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(iv) There is evidence to show that the accused used to come home drunk and torture Ambily. He had also sold some of the gold ornaments of the victim.

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(v) The accused and the deceased were sharing the same room and they were seen last together. Therefore the burden is on the accused to show what actually had occurred in the room going by Section

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106 of the Indian Evidence Act.

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(vi) The explanation given by the accused when questioned under Section 313 Cr.P.C. is false.

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(vii) The victim was stabbed and strangulated by the accused before setting her on fire to ensure that she could not respond.

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The learned counsel appearing for the appellant,

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Smt.Saritha David Chunkath, attacked the findings of the court below on the following grounds:

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The learned counsel contended that the finding is based on conjunctures and surmises, rather than evidence on record. It is strange to note, according to learned counsel, that the court below has taken aid of portions of Section 161 statement of the witnesses to hold in favour of the prosecution. That is clearly illegal. Learned counsel also pointed out that even assuming that P.W.6 had given a statement under Section 164 of Cr.P.C. to P.W.9, the learned Magistrate, it needs to be noticed that she has resiled from the same. Even if one takes the statement under Section 164 as

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evidence, it can never be treated as substantive evidence. It can at best only be an item of corroborative evidence. Learned counsel drew attention of this court to Ext.P1, the dying declaration furnished by the victim, which contained nothing regarding any role played by her husband or anybody else in the mishap that had happened to her. Learned counsel for the appellant pointed out that if as a matter of fact what the prosecution says is true, the victim would not have been so kind and benevolent. She had no complaints against anybody. Learned counsel pointed out that it is interesting to note that the police officer, who had gone to take the first information statement says that the victim was incapable of giving a statement and therefore the statement of P.W.6 was taken. The First Information Statement was taken on 23.5.2002. The dying declaration was recorded on 24.5.2002 and the doctor found her fit enough to give the statement. There is nothing to indicate that the condition of the victim was so bad that on 23.5.2002 she was unable to speak. According to the learned counsel, none of

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the grounds relied on by the court below to hold the accused guilty, are sustainable either in law or on the facts. There is absolutely no evidence to show that there was an attempt to strangulate the victim or that she was stabbed so as to make her immobile as found by the court below. The prosecution did not suggest to any of the medical witnesses examined by the prosecution that there were corresponding injuries on the body of the victim evidencing that she was either stabbed or there was an attempt to strangulate her. Those findings are figments of imagination of the court below and get no support from the evidence on record. Finally, learned counsel contended that the act of lower court in casting the burden on the accused on the basis of Section 106 of the Indian Evidence Act is unjustifiable. According to the learned counsel, even assuming that they were last seen together, that does not mean that the burden automatically shifts to the accused. The question of shifting the burden to the accused arises only when the prosecution has established its case

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beyond reasonable doubt. Section 106 of the Indian Evidence Act

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does not relieve the prosecution of its burden to prove the case beyond reasonable doubt.

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The learned Public Prosecutor on the other hand pointed out that the court below has approached the issue in the proper perspective and had come to the conclusion that offences have been established. The learned Public Prosecutor pointed out that the court below had meticulously analysed the evidence in the case and based on the testimony of P.Ws.6 and 15 etc., and other items of evidence had come to the right conclusion. The court below, according to the learned Public Prosecutor, had taken note of the conduct of the accused prior to and subsequent to the incident and that is very relevant in the present case. Attention was drawn to the fact that there is nothing to indicate that the accused was by the side of his wife while she was in the hospital. These facts taken along with the statement given by P.W.6 under Section 164 of the Code of Criminal Procedure recorded by P.W.9

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are incriminating items of evidence to fasten the liability on the accused. According to learned Public Prosecutor no grounds are

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made out to interfere with the conviction and sentence passed by the court below.

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It may first be noticed that there is absolutely no evidence at all in this case to show that there was any attempt to strangulate the victim and so also that she was stabbed by using M.O.1 knife. The medical evidence is to the effect that she died of burns, which was on the lower portion of her body. There is no entry in any of the certificates issued by any of the Doctors, who had attended to her including the postmortem certificate issued by P.W.4 suggesting that there was any attempt to strangulate the victim or that any stab injury had been inflicted on her body. Not even a suggestion was made to any of the doctors examined that any of the injuries found on the body of the victim could be related to the attempted strangulation or injury inflicted with a knife. Therefore, the observation of the court below that the accused had

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attempted to strangulate the deceased and also had inflicted a stab injury on her is without any basis.

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The most important items of evidence, which

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impressed the court below are the testimony of P.W.6, Ext.P7 series and Ext.P9.

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P.W.6 is none other than the mother in law of the victim and the mother of the accused. She says that the marriage between the victim and the accused was solemnized four months prior to the date of incident and that the bride is closely related to her. She had not attended the marriage. After staying separately initially for a few months, the newly wedded couple took up residence with P.W.6 and others. She says that Ambily, the victim suffered burns on 21.5.2002 in the night and the incident occurred in the room occupied by the victim and the accused. At the relevant time, according to this witness, her husband, her eldest son and his wife were at home. All of them had supper and had gone to sleep. The accused arrived late in the night. She does not

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know when the accused had come home in the night. But she learned that his father had opened the door for him. It was hearing the groans and grunts of Ambily that she had gone near their room. When she opened the door, she found that the accused was not there. She found that Ambily was on fire. She at once attempted to douse the fire by throwing water over her. By that time, the neighbours came to the place and the victim was removed to the hospital. She says that the accused had also gone along with the victim to the hospital. She resiled from Ext.P6 statement given by her and so also Ext.P9 statement said to have been given by her. Ext.P6 is the first information statement and Ext.P9 is the statement given by her to the Magistrate under Section 164 Cr.P.C.

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It is true that at the time of giving Ext.P6 she had implicated the accused. One may notice that FIS was lodged after two days of the incident. It is strange to note that the hospitals, where she had been taken for treatment, did not feel it necessary to inform the police. P.W.6 admitted her signature in Exts. P6 and

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P9. As far as Ext.P9 is concerned, she has a case that it was given

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under threat and coercion.

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P.W.7, as already noticed, is the father of the

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accused. He would say that Ambily died of burns. He says that there was no disharmony between the couple. It has come out in his evidence that the accused used to take drinks. But his evidence does not contain anything to implicate the accused as such.

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In this regard, one may notice the evidence of P.W.15. P.W.15 is the brother of the deceased. He says that he came to know about the incident by 11 A.M. the next day. As far as he knows, there was no difference of opinion or displeasure in the marital life of the accused and the victim. He however does say that P.W.6 had told him that the act was committed by the accused. He would also depose that after the victim was admitted in the hospital, the accused had not come there at all.

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These are the items of oral evidence in the case.

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One may recall that the prosecution case is that Ambily was being

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continuously harassed and tortured demanding more dowry and money. The accused made life miserable for her. It is strange to note that even P.W.15, the brother of the victim has no such case. It is not discernible from the records the details of the other kith and kin of the deceased. Whatever that be, the allegation of the prosecution that she was being ill-treated remains unsubstantiated. There is nothing to indicate that the accused had squandered away the money received at the time of marriage (if at all there was any) or that he had sold the gold ornaments of his wife. One fails to understand as to how the lower court came to the conclusion that the accused had sold the gold ornaments of the deceased.

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It is here that Ext.P1 assumes much significance. The incident took place on 21.5.2002. The dying declaration of the victim was taken on 24.5.2002, while she was in the hospital. It was recorded by P.W.1. P.W.2 is the doctor, who certified that the victim was in a fit condition to give the statement. After

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following the necessary formalities, the statement of the victim was taken by P.W.1. The victim stated that she was not fully conscious at the time of the incident. She says that she caught fire while she was sleeping. She does not say about anything done by her husband nor has implicated anybody in her statement. If as a matter of fact, her husband was so unkind, cruel and merciless to her, it is inconceivable that she would have given a statement of the nature of Ext.P1. One must remember here that she died after about 14 days of suffering of burn injuries.

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The court below placed considerable reliance on Exts.P7, P7(a) and P7(b), which are the statements put to P.W.6 when she was being examined in court. Exts.P7, P7(a) and P7(b) are part of statements under Section 161 Cr.P.C. to the investigating officer. The court below feels that since the investigating officer has stated that those statements had been given by P.W.6, that forms substantive evidence.

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The above view has no legal support. It is well

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settled that a statement under Section 161 Cr.P.C. given to an investigating officer can be used in the manner prescribed by Section 162 Cr.P.C. alone. The portions of that statement can never be treated as evidence.

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P.W.6 admitted the signature on Ext.P9. That is a statement recorded by the learned Magistrate under Section 164 Cr.P.C. At the time of evidence she deviated a lot from that statement. One may note that even though P.W.6 had admitted her signature in Ext.P6, which is the First Information Statement given by her, she had retracted from it at the time of evidence. In the decision reported in Chandrasekharan v. Station of Kerala (1993(1) K.L.T. 571), it has been held as follows:

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“We may point out, at this stage itself, that learned Sessions Judge has relied on certain materials which are totally inadmissible in evidence. Eg: He relied on the statements made by two witnesses before Judicial Magistrate of the Second Class who recorded

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them under S.164 of the Code of Criminal Procedure. It is well settled that the statement of a witness recorded by a Magistrate under S.164 of the Code is not substantive evidence and the most that can be used of it is only for corroboration of the testimony of that witness as provided in S.157 of the Evidence Act or for contradicting the witness in the manner provided in S.143 of the Evidence Act.”

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The act of the learned Sessions Judge in placing reliance on the statements made by the witnesses under Section 161 of the Cr.P.C. cannot be justified in the light of the decision reported in Parameswaran v. State of Kerala (2004(2) K.L.T. SN 103), wherein it was held as follows:

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“Previous statement of witnesses alleged to have been given by him before the police, and denied by him, is not part of his testimony. Hence, the learned Sessions Judge committed a fundamental error in accepting the prosecution case solely based on the evidence of the investigating officer as his version is corroborated by the previous statement given to the

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police officer by the witnesses. Under no circumstances, statements recorded under S.161 can be used to corroborate the evidence of investigating officer. All previous statements of witness to the police are not admissible in evidence for any purpose and there is absolute ban regarding acceptance of such evidence except as allowed by S.162 Cr.P.C., viz., contradiction of a prosecution (1) by the accused; (2) by the prosecution themselves with permission of the Court; (3) statements coming under S.32 of the Evidence Act; and (4) for the purpose of S.27 of the Evidence Act. Police statement given by one witness cannot be used to contradict or corroborate the evidence of any other witnesses. S.162 Cr.P.C., is a special law and notwithstanding Ss.145 and 157 of the Evidence Act, the above section completely prohibits the admission of evidence of alleged statements recorded by the police officer in the course of investigation except for the strictly limited purpose as provided in the provisions of S.162 itself. Previous statement to the police can be used to contradict the witnesses in the manner provided in the section only if

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the 'statement is duly proved'. There is no presumption of genuineness of the statements reduced to writing by the police. Investigating Officer can only depose the investigation he has conducted. But finding of guilt solely based on the evidence of the investigating officer regarding previous statements of witnesses cannot be justified.”

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In the decision reported in Rajendra Singh v. State of U.P . ((2007) 7 SCC 378) it was held as follows:

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“The High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr.P.C. to record a positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of Section 162 Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court

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committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime.”

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There is absolutely no evidence of any cruel acts by the accused towards his wife nor is there any evidence of harassment or torture. The allegations of the prosecution in this regard remain as mere allegations. There is nothing to show that the victim had ever complained to anybody about the misdeeds of her husband. As already noted, if as a matter of fact the accused had harassed or tortured her, she would have mentioned that fact at the time of giving Ext.P1 statement. The lower court ignored these aspects altogether.

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The lower court had strained itself much to hold that the deceased was strangulated and stabbed. The lower court ought to have noticed that the cause of death as shown in the postmortem certificate is due to burns. P.W.4, who had conducted

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the autopsy in his evidence says that he is unable to say whether any inflammable oil was involved in the accident. There is absolutely no medical evidence in this case even to suggest that the incident was due to the act of another person or that the victim was strangulated and knifed. There is no convincing evidence to indicate as to how the incident had occurred.

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Being together is no sin as far as the accused and

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the victim are concerned, since they are husband and wife. The evidence of P.W.6, on which considerable reliance is placed by the court below, stated that when she opened the door hearing the groans and grunts of the victim, she found that the accused was not in the room. It is also interesting to note that there is no evidence in this case at all to show that the victim was drenched in kerosene. Even going by P.W.6, all that she says is that she saw the accused dropping a can and a lighted matchstick. It is true that P.W.15, the brother of the victim says that P.W.6 told him that it was the accused who had done the act. But that was long after the

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incident, and such evidence does not even qualify as res gestae evidence. There is no suggestion to P.Ws. 6, 7 or 15 that Ambily, the victim, had ever complained to them or anybody else about the cruel acts of the accused. If as a matter of fact, the prosecution allegations are true, Ambily had ample time to narrate her difficulties and the inhuman and intolerable acts of the accused to her brothers. P.W.15 has no case that any of them (ie., brothers of the deceased) had looked after her while she was in the hospital even though the victim had undergone treatment in the hospital for nearly 14 days. On the other hand, it would appear that P.W.6 was attending to her.

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There is yet another significant aspect. May be that the explanation offered by the accused when questioned under Section 313 of the Cr.P.C. is unsatisfactory. But the fact remains that he had brought the jeep and taken his wife to the hospital along with P.W.6 and his brother. The anxiety shown by the accused suggests that it was not he who had set Ambily on fire.

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His conduct of immediately rushing the victim to the hospital seems consistent with his innocence. May be his conduct after the incident is unsatisfactory. But that by itself is not sufficient to lead to the conclusion that it was he who was behind the incident.

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It has already been noticed that there is absolutely no evidence at all to show that the victim was either strangulated or had been stabbed. Even going by the prosecution case, the incident occurred while she was sleeping. If as a matter of fact kerosene was poured on her while she was sleeping, that would have certainly woken her up and she would have reacted. There is nothing to show that the accused had committed any act which had made the victim immobile and unresponsive. This is yet another circumstance which goes in favour of the accused.

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The court below was also not justified in throwing

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the burden on the accused merely on the basis of last seen theory and his conduct. In the decision reported in Murlidhar v. State of Rajasthan (AIR 2005 SC 2345) it was held as follows:

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“In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are “especially within the knowledge of the accused” and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, “especially within the knowledge of the accused.” In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply.”

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In the decision reported in Vikramjit Singh v.

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State of Punjab ((2006) 12 SCC 306), it was held as follows:

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“In the instant case, there are two versions. The learned Sessions Judge proceeded to weigh the probability of both of them and opined that the appellant having not been able to prove its case, the

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prosecution case should be accepted. In our opinion, the approach of the learned Sessions Judge was not correct. The High Court also appeared to have fallen into the same error. It invoked Section 106 of the Evidence Act although opining:

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“The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.”

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Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule e.g. Where burden of proof may be imposed upon the accused by reason of a statute.

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It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the wellsettled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt.

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In Sharad Birdhichand Sarda v. State of Maharashtra this court laid down the law in the following terms:

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the

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observations were made:

¶178

'Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between “my be” and “must be” is long and divides vague conjectures from sure conclusions.'

¶179

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

¶180

(3) the circumstances should be of a conclusive nature and tendency,

¶181

(4) they should exclude every possible hypothesis except the one to be proved, and

¶182

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

¶183

It was further observed:

¶184

“179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however

¶185

Crl.A.1707/2005.

¶186

¶187

great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.

¶188

180. It must be recalled that the well-established rule of criminal justice is that 'fouler the crime higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made.”

¶189

The law is well settled in this regard. As rightly

¶190

pointed out by the learned counsel for the appellant, Section 106 of the Indian Evidence Act is not intended to relieve the prosecution of its burden to prove the case beyond doubt. The burden to prove the case beyond reasonable doubt rests on the prosecution. When that burden is discharged, then the burden shifts to the accused. Viewed from that angle, it could not be said that in the instant case, Section 106 of the Indian Evidence Act has any application.

¶191

Crl.A.1707/2005. 31

¶192

We are unable to uphold the conviction and

¶193

sentence passed by the court below for the offences punishable under Section 302 I.P.C. in the light of the discussion made above. We are constrained to hold that the prosecution has not succeeded in proving the case beyond reasonable doubt.

¶194

But the matter does not end there. Question that still remains to be considered is whether the offence punishable under Section 304B is attracted. Section 304B of IPC reads as follows:

¶195

“ 304B. Dowry death .-(1) Where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

¶196

Crl.A.1707/2005.

¶197

¶198

Explanation.- For the purpose of this sub-section “dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

¶199

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

¶200

It will not be out of place here to refer to Section 113B of the Indian Evidence Act to raise the presumption in case of dowry death. That portion reads as follows:

¶201

“113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.”

¶202

In order to attract Section 304B of the IPC, the following ingredients will have to be established:

¶203

Crl.A.1707/2005. 33

¶204

(a) The death of women is caused by any burns or bodily injury or otherwise than under normal circumstances within seven years of marriage. (b) It must be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand for dowry.

¶205

If the above ingredients are established, then the death is known as dowry death. If the aforesaid ingredients are established, legal presumption under Section 113B of the Indian Evidence Act is attracted.

¶206

In the case on hand, the evidence clearly shows that

¶207

the death was within seven years of marriage and it was due to burn injuries. Therefore, the first part of Section 304B is attracted. But that may not be sufficient. The prosecution will have to prove that soon before the death of the victim, she was subjected to cruelty or harassment by her husband or his relatives and that was in connection with the demand for dowry. Even though the

¶208

Crl.A.1707/2005.

¶209

¶210

prosecution has such an allegation that the accused was continuously harassing and torturing the victim for dowry, there is absolutely no evidence to establish the said fact. The lower court has observed that the accused had sold the gold ornaments of the deceased. But we are unable to find any evidence in this regard. There is no whisper in Ext.P1 dying declaration that either her husband or any of his relatives had made any demand for dowry or that the victim was subjected to cruelty or harassment in connection with the demand for dowry. Evidence shows that marriage was not to the liking of either of the families.

¶211

In this connection it will be appropriate to refer to

¶212

the decision reported in Prem Kanwar v. State of Rajasthan (AIR 2009 SC 1242), wherein it was held as follows:

¶213

“The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21^st Report dated 10^th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence

¶214

Crl.A.1707/2005.

¶215

¶216

to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B of the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304-B, IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been “soon before her death” subjected to cruelty or harassment “for on in connection with the demand of dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials.

¶217

(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, IPC).

¶218

¶219

Crl.A.1707/2005.

¶220

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

¶221

(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

¶222

(4) Such cruelty or harassment was soon before her death.

¶223

A conjoint reading of Section 113-B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances.' The expression 'soon before ' is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid

¶224

Crl.A.1707/2005. 37

¶225

down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B, IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for the possession. The determination of he period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the

¶226

Crl.A.1707/2005.

¶227

¶228

interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.”

¶229

(Also see the decision reported in Beldev Singh v. State of Punjab (AIR 2009 SC 913).

¶230

One may here refer to the ingredients that are to be established in order to draw the legal presumption available under Section 113 B of the Indian Evidence Act. They are as follows:

¶231

(i) The question before the court must be whether the accused has committed the dowry death of the woman (this means that the presumption can be raised only if the accused is being tried for the offence under Section 304 B of IPC).

¶232

(ii) The woman was subjected to cruelty or harassment by her husband or his relatives.

¶233

Crl.A.1707/2005.

¶234

¶235

(iii) Such cruelty or harassment was in connection with the demand for dowry.

¶236

(iv) The cruelty or harassment was soon before her death.

¶237

It can therefore be seen that Section 113B of the Indian Evidence Act is closely linked to Section 304 B of the IPC. From a reading of the Section as well as the various decisions on the subject, it can be seen that once the ingredients of Section 304B are established, then it is obligatory on the court to raise the presumption under Section 113 B of the Indian Evidence Act. In order to attract Section 304 B, it has to be shown as already mentioned that the victim was subjected to cruelty or harassment in connection with the demand for dowry soon before her death. In the case on hand, as already noticed, there is nothing to indicate that there was any harassment or cruel treatment either from the husband or his relatives against the victim. Therefore, the offence punishable under Section 304B is also not attracted.

¶238

Crl.A.1707/2005.

¶239

¶240

It is surprising to note that even though the court

¶241

has framed charge under Section 498A of IPC, no finding is seen entered in relation to the said offence. There can be no dispute regarding the fact that Section 498A is a distinct and independent offence. Merely because the accused had been found guilty of the offence punishable under Section 302 IPC, that will not relieve the trial court of the burden of considering whether offence punishable under Section 498A is attracted. Section 498A reads as follows:

¶242

“ 498A. Husband or relative of husband of a woman subjecting her to cruelty .- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

¶243

Explanation.- For the purpose of this section, “cruelty” means-

¶244

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health

¶245

Crl.A.1707/2005. 41

¶246

(whether mental or physical) of the woman; or

¶247

(b) harassment of the woman where such harassment is within a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

¶248

The essential ingredients of the Section are :

¶249

(1) The woman was married,

¶250

(2) She was subjected to cruelty,

¶251

(3) Cruelty consists of ;

¶252

(a) Any wilful conduct which is of such a nature as is likely to drive the woman

¶253

(i) to commit suicide to cause grave injury,

¶254

(ii) to cause grave injury or danger to life, limb or health (whether mental or physical).

¶255

(b) Harassment of such woman

¶256

(i) with a view to coerce her to meet the

¶257

unlawful demand for property or valuable security (ii) On account of failure by her or any

¶258

person related to her to meet such demand.

¶259

Crl.A.1707/2005.

¶260

¶261

(iii) The woman was subjected to cruelty either by the husband or his relatives.

¶262

The offence punishable under Section 498A IPC is not related to demand for dowry. The provision is attracted when any of the conduct made mention of in the provision is established resulting in the consequences mentioned thereof. Here too, the prosecution has to establish that the woman concerned was subjected to cruelty either by her husband or by his relatives. While Section 306 of the IPC relates to abetment of suicide, Section 498A in fact would deal with creating of circumstances leading to commit suicide by the woman or grievous injury to herself. Apart from the fact that there is no evidence in the case on hand to show that the victim was subjected to cruelty, there is also nothing to show that she was driven to commit suicide or to cause grievous injury due to the conduct on the part of her husband or his relatives. Therefore, this provision is also not attracted.

¶263

Crl.A.1707/2005.

¶264

¶265

There is yet another defect in the judgment of the

¶266

court below, though it may be only academic. The court below has

¶267

observed that set off under Section 428 Cr.P.C. is not allowed as it is legally settled that life imprisonment implies remaining part of life. Viewed in the abstract sense, it may be correct. But it has been held that if the appropriate Government exercise their power under Section 432 or Section 433 Cr.P.C., as the case may be, subject ofcourse to Section 433A of the Code, then it becomes an imprisonment for a term and Section 428 of the Code is attracted. Therefore, the proper way would be to direct that set off as per law will be allowed in case the appropriate Government choose to exercise its power under Section 432 or Section 433 of the Code subject to Section 433A of the Code. This aspect may not be of much relevance in the case on hand, because it has been found that the prosecution has miserably failed to establish the acts attributed to the accused.

¶268

Crl.A.1707/2005.

¶269

¶270

In the result, this appeal is allowed, the conviction and sentence awarded by the court below are set aside and the accused in S.C. 178 of 2004 on the file of the Additional Sessions Court, Fast Track No.I, (Ad Hoc), Manjeri stands acquitted for the offences punishable under Section 498A and 302 IPC and he shall be set at liberty forthwith unless wanted in any other case. If he has paid the fine amount, it will be refunded to him.

¶271

K. Balakrishnan Nair, Judge

¶272

P. Bhavadasan, Judge

¶273

sb.

K.M.Sujith, C.NO.2215, Ctrlprison, Knr v. State of Kerala

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K.M.Sujith, C.NO.2215, Ctrlprison, Knr v. State of Kerala

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