Allowed

Bineesh & Others v. State of Kerala

Kerala HC23 Jan 2014CRL.A/2116/2010

Case brief

AI extract

What is this about?

Appeal against conviction under Section 498A IPC where trial court found no offence under 306/304B. High Court held prosecution failed to prove nexus between alleged dowry demand and suicide. Appeal allowed based on settlement and lack of evidence.

What did the court decide?

Conviction and sentence under Section 498A IPC set aside and appellants acquitted of all charges.

Bineesh & Others Vs State of Kerala — Matrimonial and Divorce | Kerala HC (2014)

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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 V.K.MOHANAN

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THURSDAY, THE 23RD DAY OF JANUARY 2014/3RD MAGHA, 1935

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CRL.A.No. 2116 of 2010 ( )

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AGAINST THE JUDGMENT IN SC 493/2007 of ADDL. SESSIONS COURT(FAST TRACK COURT NO.II-ADHOC), THRISSUR DATED 12-10-2010

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APPELLANTS/ACCUSED:

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BINEESH, S/O. SREENIVASAN, MUTHAMPARAMBIL HOUSE, KALANIPALAM, THALIKULAM VILLAGE.

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VALSALA, W/O.SREENIVASAN, MUTHAMPARAMBIL HOUSE, KALANIPALAM, THALIKULAM VILLAGE.

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SEENA, D/O.SREENIVASAN, MUTHAMPARAMBIL HOUSE, KALANIPALAM, THALIKULAM VILLAGE.

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BY ADVS.SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA,

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REP. BY THE PUBLIC PROCUTOR, HIGH COURT OF KERALA, KOCHI-31.

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ADDL. R2 IMPLEADED:

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ADDL.R2:

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PURUSHOTHAMAN , S/O. KORISSERY KUNHAPPAN, VALAPPAD VILLAGE, VALAPPAD ANJANGADY DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.

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ADDITIONAL 2ND RESPONDENT IS IMPLEADED IN CRL.A.2116 OF 2013 AS PER ORDER DATED 13.03.2013 IN CRL.M.A..318 OF 2013.

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R1 BY PUBLIC PROSECUTOR SMT. LALIZA R2 BY ADV. SRI.K.PAUL KURIAKOSE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/27/01

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V.K.MOHANAN, J.

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Crl.A.No. 2116 of 2010

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Dated this the 23^rd day of January, 2014

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J U D G M E N T

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Appellants are accused Nos.1 to 3 in S.C.No.493 of

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2007 of the Court of Additional Sessions Judge (Fast Track No.IIAdhoc), Thrissur. Their grievance is against the conviction and sentence imposed on them for the offence under Section 498 A of the Indian Penal Code in the above Sessions Case.

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The prosecution case is that the deceased Sindhu, who is the daughter of PW2 Purushothaman of Korissery House, committed suicide on 23.08.2006 at about 11.30 a.m. by hanging herself to a hook in the ceiling of her bedroom at her parental house situated at Anchangadi consequent to the abetment of A1, her husband and A2 and A3, her mother in law and sister in law respectively in connection with the non fulfillment of the demand of dowry and also on account of the cruelty and harassment meted out to her by them within 7 years of her marriage with A1. On the strength of the First Information statement given by PW1

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Crl.A.2116/2010

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Vijayan, the brother of PW2, the Valappad Police registered Crime No.358/2006. Thus according to prosecution, the accused three in numbers have committed the offences punishable under Sections 498 A, 306 and 304 B read with Section 34 of the Indian Penal Code (for short ‘the IPC’).

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On completing the investigation, a report was filed in the Judicial First Class Magistrate's Court, Kodungallur by the Deputy Superintendent of Police, Irinjalakuda and the learned Magistrate by his order in C.P.No.82 of 2006, committed the case to the Sessions Court wherein S.C.No.493 of 2007 is instituted and subsequently made over to the present trial Court for disposal. Thus when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against them for the offences punishable under Sections 498 A, 306 and 304 B read with Section 34 of the IPC. When the said charge read over and explained to the accused, they denied the same and pleaded not guilty. Hence the trial was proceeded further, during which the prosecution adduced its evidence by examining PWs 1 to 16 and Exhibits P1 to P14 were marked. After considering the evidence and materials on record, the learned Judge of the trial

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court found that offence under Sections 304 B and 306 of the IPC are not made out against the accused and accordingly they are acquitted under Section 235(1) of the Code of Criminal Procedure (for short ‘the Cr.P.C.) with respect to those offences. Whereas the learned Judge has found that the prosecution has succeeded in substantiating the charge against the accused for the offences punishable under Section 498 A read with Section 34 of the IPC and accordingly they are convicted thereunder. On such a conviction, the accused are sentenced to undergo rigorous imprisonment for a period of three years each and to pay fine of `25,000/- each and in default of payment of fine, they are directed to suffer simple imprisonment for a further period of two months each. It is also ordered that on realisation of the fine amount, the same shall be paid to PW2 as compensation under Section 357 (1) (b) of the Cr.P.C. The above findings which are to the extent against the appellants and the conviction and sentence are challenged in this appeal.

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It is relevant to note that during the pendency of the above appeal, PW2 in the above Sessions Case, who is respectively the husband and the father of deceased Prasanna

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and Sindhu, is impleaded as additional 2^nd respondent in the above appeal stating that the matter is subsequently settled between the accused and PW2 and a compounding petition in Crl.M.A.No.8796 of 2012 is also filed and which signed by the appellants as well as the additional 2^nd respondent and counter signed by the respective counsel.

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I have heard Adv. Sri. M.Ramesh Chander, the learned counsel appearing for the appellants, Adv. Sri. K.Paul Kuriakose, the learned counsel appearing for the additional 2^nd respondent and Smt. Laliza, the learned Public Prosecutor for the State.

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To substantiate the above prosecution allegation altogether 22 witnesses were cited but examined only 16 witnesses. The case in Crime No.358 of 2006 of Valappad Police Station is registered on the basis of Exhibit P1, First Information Statement lodged by PW1, the elder brother of PW2, who is the father of deceased Sindhu and husband of deceased Prasanna.

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PW2, as I mentioned earlier, is the father of deceased Sindhu, who was married by A1. Deceased Prasanna is the wife of PW2. PW3 is another daughter of PW2 and the sister of deceased Sindhu. PW6 is one of the neighbours and PW7 is the brother in

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law of PW2 and the brother of deceased Presanna and uncle of deceased Sindhu. When PW1 was examined, he had deposed about the marital relationship between the deceased Sindhu and A1 and he had also deposed about the dowry arrangement connected with the said marriage. According to PW1, A2 was not happy about the nature of bangles given to Sindhu and Sindhu told PW1 that all the gold ornaments were appropriated by A3 and they have also complained against Sindhu for bringing an almira which was not manufactured by the Godrej company. According to PW1, Sindhu was sent back to her house by the accused asking her to bring `50,000/- and Sindhu was not willing to return the matrimonial home without raising the said amount. PW1 has identified Exhibit P1 as the First Information Statement given by him to the Police. When PW2 is examined, he had also deposed about the marriage and the dowry given to A1 and the way in which he raised the fund to meet the expenses for the purchase of ornaments etc. connected with the marriage. He had also deposed about the purchase of almira and the complaint of the accused about the same etc. and the dissatisfaction expressed by them. PW2 deposed that about 35 days before the

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incident, as A2 informed him over phone that Sindhu was suffering from stomach pain and A1 and A2 are not prepared to treat her and thus she was brought home by deceased Prasanna. According to PW2, Sindhu told him that she was compelled to cut short her hairs by A3 and also deposed that the accused compelled her to bring `50,000/-.

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PW3, as I mentioned earlier, is the sister of deceased Sindhu, who was doing her final year B.Com at the relevant time. During her examination, PW3 has also stated about the arrangement including the dowry connected with the marriage between A1 and the deceased Sindhu. She had also spoken about the almira given to the accused and the complaint made by them. She also deposed that Sindhu was compelled to cut short her hairs by A3 by saying that she need not have more hairs than that of A3. She had also deposed that Sindhu told her that she was sent out of the house of the accused with a demand to bring an additional sum of `50,000/-. According to PW3, Sindhu and her mother committed suicide due to the mental ill-treatment from the side of the accused.

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PW4 is an attestor to Exhibit P3 inquest report with

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respect to the body of the deceased Sindhu whereas PW5 is an attestor to Exhibit P4 inquest report pertained to the body of deceased Presanna. PW6 is the neighbour of PW2 and he deposed that on hearing the sound of breaking of grass, he came to the house of PW2 and on looking through the broken pane of window, he found Prasanna and Sindhu dead in a hanging posture inside the room. PW6 has also deposed that deceased Sindhu came to the house of PW2 about one month prior to the incident and he had also deposed about the ornaments given as dowry to A1.

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PW7 is the brother of deceased Prasanna and the uncle of deceased Sindhu. PW7 has also stated about the marriage between A1 and Sindhu and the details of the dowry given etc. According to PW7, himself and deceased Prasanna went to the house of the accused for presenting them a gift for Vishu, but A2 refused to receive the same. According to PW7, A3 complained about the genuineness of the ornaments that had been given to Sindhu at the time of marriage and the deceased Sindhu was found wearing only a ‘thali’ and ‘ear rings’. According to PW7, rest of the ornaments were with A3. He had also deposed about

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the purchase of almira and the complaint expressed by the accused. According to PW7, Sindhu told him that the accused demanded her to bring `50,000/-, failing which, she need not return to their house and according to PW7, Sindhu committed suicide as a result of the ill-treatment meted out by the accused.

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PW8 is the attestor to Exhibit P5 scene mahazar and PW9 is the Constable attached to the office of the Deputy Superintendent of Police, Irinjalakkuda, who is an attestor to Exhibit P6 mahazar by which Exhibit P2 invitation card seized. PW10 is the then Tahsildar of Chavakkad Taluk, who conducted the inquest on the body of Sindhu and issued Exhibit P3 inquest report.

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PW11 is the Doctor, who conducted the postmortem on the body of the deceased Sindhu and issued Exhibit P8 postmortem certificate. PW12 is the Doctor, who conducted autopsy on the body of deceased Presanna and issued Exhibit P9 postmortem certificate. PW13 is the then Village Assistant of the Village Officer, Valappad through whom Exhibit P10 sketch of the place of occurrence got prepared and produced. PW14 is the then Sub Inspector of Police, Valappad who examined the body of

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deceased Prasanna and prepared Exhibit P4 inquest report. It was PW14 who filed Exhibit P11 report for incorporating Sections 498 A and 306 of the IPC. Exhibit P1 First Information Statement of PW1 was recorded by PW15, the then Additional Sub Inspector of Police, Valappad and registered the case under Exhibit P2 First Information Report. PW16 is the Deputy Superintendent of Police, Irinjalakkuda who investigated the case and laid the charge. He had filed Exhibits P12 and P13 reports before the court. These are the evidence and materials on record which referred by the learned Judge in the impugned judgment.

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The learned counsel for the appellants vehemently submitted that the trial court is wrong in convicting the appellants for the offence under Sections 498 A of the IPC, after having held that no offences under Sections 306 or 304 B would lie against the appellants. It is also pointed out by the learned counsel that the evidence and materials on record are not sufficient to attract the ingredients of Section 498 A of the Indian Penal Code. It is also the contention of the learned counsel that the evidence of PW1 and PW2 are sufficient to create a doubt about the prosecution allegation against the accused and thus according to

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the learned counsel, the trial court ought to have acquitted the accused at least leaving the benefit of doubt. It is also the submission of the learned counsel that the parties to the dispute had already settled the matter out of court and the said fact also may be considered while disposing the above appeal.

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On the other hand, the learned Public Prosecutor submitted that the evidence of PWs 1 to 3 and 7 shows that the ill-treatment suffered by deceased Sindhu was occurred while she was in her matrimonial home. The finding that Sindhu and her mother were forced to commit suicide because of the ill-treatment so meted out against them by the accused supported by their evidence and materials on record. So according to the learned Public Prosecutor, the trial court is justified in convicting only for the offence under Section 498 A of the IPC. The learned counsel appearing for the additional 2^nd respondent submitted that PW2, the father of the deceased Sindhu and husband of deceased Prasanna has settled the matter out of court and he has no objection in acquitting the appellants.

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I have carefully considered the arguments advanced by the learned counsel for the appellants and additional 2^nd

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respondent and the learned Public Prosecutor. I have also perused the evidence and materials on record.

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In the light of the rival contentions and the evidence and materials on record, the question to be considered is whether the trial court is justified in convicting the appellants for the offence under Section 498 A read with Section 34 of the IPC? At the outset, it is to be noted that though the specific charge of the Police against the appellants is for the offences punishable under Sections 304 B, 306 and 498 A read with Section 34 of the IPC, the learned Judge of the trial court has already found that no offences under Sections 304 B and 306 of the IPC attracted against the appellants and accordingly they are acquitted for the said offences. State has not filed any appeal against the above acquittal. Thus the acquittal secured by the appellants became final. Another fact to be considered is that after the trial, while the appeal is pending before this Court, the matter has been settled out of court between the parties, though 498 A is not a compoundable offence as per the provisions of the Cr.P.C. According to me, the merits of the prosecution case has to be examined in the above said backdrops of the case.

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Crl.A.2116/2010

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It is beyond dispute that the marriage between the deceased Sindhu and A1 was on 11.12.2005 and the deceased Sindhu and her mother committed suicide on 23.08.2006 in their house. In a case like the present one, it is difficult to get direct evidence in support of the prosecution allegation since the alleged cruelties and the ill-treatment taken place in the matrimonial home and the person who subjected to such treatment is not available to give evidence. So the Court is bound to scrutinize the available evidence with more caution and care. The learned Judge himself observed in paragraph 33 of the judgment that there is some improvements, embellishments and omissions in the evidence of the witnesses but according to the learned Judge the same are only inevitable in the case of truthful witnesses. According to me, the above approach of the court below is not fully correct. Going by the evidence of PWs 1 to 3 and 7, who are highly interested and relative of the deceased, they have no specific case and the details about the ill-treatment allegedly meted out by the accused towards the deceased Sindhu. It is true during their examination, they have deposed about the dissatisfaction expressed by the accused with respect

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to the gold ornaments worn by the deceased Sindhu and also about the almira given by the relatives of the deceased. But about all these incidents, they have no specific averments and particulars. It is beyond dispute that one month prior to the date of incident, Sindhu came to her parental home. None of these prosecution witnesses have deposed on which date the accused demanded 50,000/- towards dowry. It is brought on record to the effect that the father of A1 admitted in the hospital and all the inmates of the house of accused were attending that patient and nobody to look after Sindhu and therefore they contacted PW2 and requested him to take away Sindhu to their house. PW3 herself has admitted the said facts. The other witnesses have also, more or less, admitted the said fact. It is also brought on record that in fact Sindhu came to her parental home connected with her stomach pain and also for the reason that her father in law was hospitalised for treatment. Besides this aspect, in this juncture it is relevant to note that about the exact date of demand for 50,000/- or the exact date about teasing or ill-treatment of the deceased Sindhu connected with the gold ornaments or the low quality of the almira given etc. are not mentioned. It is also

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relevant to note that deceased Sindhu was brought to her parental home by the deceased Presanna, her mother, when PW2 got telephonic message from the matrimonial home of deceased Sindhu about her stomach pain and particularly, when her fatherin-law was admitted in the hospital for cancer treatment, so Sindhu came to her house, not as alleged by the prosecution that she had driven out to bring 50,000/- as demanded by the accused. Moreover, the exact date of demand of 50,000/- and connected particulars are not mentioned by the prosecution through any of the witnesses. Similarly, the particulars including the date of ill-treatment meted out by the accused against the deceased Sindhu and also about the details about cut short of the hairs of deceased Sindhu are also not brought on record. Lastly, it is relevant to note that deceased Sindhu was staying in her parental house for more than one month and she committed suicide, while she has staying along with her parents. No particular incident or facts pointed out by the prosecution to show the immediate cause for committing suicide by the deceased Sindhu. So it can be safely concluded that the prosecution has miserably failed to establish the nexus between the so called

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illegal demand or ill-treatment and the suicide of deceased Sindhu and her mother.

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It is also relevant to note that PW1 when gave Exhibit P1 statement before the Police, his case is that deceased Sindhu and Prasanna committed suicide because of the bad conduct of PW2 who is a drunkard. According to me, when PW1, who is the brother of PW2 and who gave Exhibit P1 statement, is not expected to make false complaint against PW2, his own brother. It is clear that PW1 resiled from his Exhibit P1 statement, to salvage PW2 and to convict the accused. So what PW1 stated in Exhibit P1 First Information Statement are sufficient to create doubt in the mind of the court against the prosecution case and as suggested by the defence the deceased committed suicide due to the bad habit of PW2, cannot be ruled out. This Court fails to understand the reason for committing suicide by the deceased Presanna, when the allegation is that accused ill-treated deceased Sindhu. So the fact that deceased Prasanna, who is the wife of PW2 committed suicide accelerated the doubt of this Court about the exact reason for committing suicide by both deceased Prasanna and Sindhu and the version of PW1 in his

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Exhibit P1 statement about the habit of PW2, goes against the very root of the prosecution allegation. So according to me, the prosecution has miserably failed to prove beyond reasonable doubt that the deceased Sindhu and Prasanna committed suicide because of the demand connected with the dowry or due to the ill-treatment from the side of the accused so as to attract Section 498 A of the IPC particularly when there is no nexus between the above demand and cruelty with the suicide.

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In the light of the above discussions and in view of the materials on record, I am of the view that the trial court is not justified in convicting the appellants for the offence, under Section 498 A of the IPC, after having acquitted them for the offences under Sections 304 B and 306 of the IPC which are also alleged on the same set of facts. Thus according to me, the prosecution has miserably failed to establish its case against the appellants beyond reasonable doubts. Thus extending the benefit of doubts, the conviction recorded against the appellants is set aside.

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In the result, this appeal is allowed setting aside the judgment dated 12.10.2010 in S.C.No.493 of 2007 of the Court of

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Additional Sessions Court (Fast Track No.II-Adhoc), Thrissur and the appellants/accused are acquitted of all the charges levelled against them. The bail bond, if any, executed by them shall stand cancelled and they are set at liberty. If the appellants have already deposited any amount in the trial court in terms of the order dated 22.10.2010 in Crl.M.A.No.10020 of 2010, the same shall be released to them forthwith in case an application is moved in this behalf.

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V.K.MOHANAN, JUDGE.

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DSV/24/01

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Crl.A.2116/2010 18

Bineesh & Others v. State of Kerala

Case brief

What is this about?

What did the court decide?

Bineesh & Others v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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