Dismissed

State of Kerala v. Hydrose

Kerala HC7 Jan 2016CRL.A/1175/2002

Case brief

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What is this about?

In an appeal against acquittal in a dowry death case, the Kerala High Court upheld the trial court's judgment acquitting the appellant-in-laws. The Court found the prosecution witnesses dissatisfied and failed to prove harassment linked to the suicide, rendering statutory presumptions inapplicable.

What did the court decide?

Criminal Appeal against acquittal dismissed confirming the judgment of the Additional Sessions Judge.

State of Kerala Vs Hydrose — Dowry and Cruelty | Kerala HC (2016)

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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 P.UBAID

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THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937

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CRL.A.No. 1175 of 2002 ( )

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SC 149/1999 of ADDITIONAL SESSIONS COURT, NORTH PARAVUR =============

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APPELLANT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, ALUVA.

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BY ADV. PUBLIC PROSECUTOR

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RESPONDENTS/ACCUSED:

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1. HYDROSE, S/O. ALIKUNJU, NAMBIYATH HOUSE EAST VELIYATHNADU, U.C.COLLEGE, ALUVA.

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2. ASIYA W/O. HYDROSE, -DO-

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-DO-

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R1&R2 BY ADV. SRI.P.K.MEETHIYAN KUNJU

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P. UBAID, J.

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--------------------------------------Crl.Appeal No.1175 of 2002 ---------------------------------------

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Dated this the 7^th day of January, 2016

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JUDGMENT

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The State is aggrieved by the judgment of acquittal of the learned Additional Sessions Judge, North Paravoor in S.C.No.149/1999 dated 12.07.2002, in favour of the respondents herein. Of the three accused in Crime No.151/1998 of the Aluva Police Station registered under Sections 498-A, 306 and 304(b) IPC, the respondents faced prosecution before the learned trial Judge. The original first accused is none other than son the of the respondents. The case against him was split up and refiled at the initial stage itself, when he absconded during the trial process. The case against the respondents was committed to the Court of Session, and they faced trial before the learned trial Judge under Sections 498-A, 306 and 304(B) IPC. The case relates to the commission of suicide by one Beevi on 03.03.1998. Beevi was married by the original first accused on 14.07.1996. The prosecution case is that Beevi had been mentally and physically harassed by the three accused by demanding more dowry and ornaments, and when she found it unbearable, she committed

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Crl.Appeal No.1175 of 2002

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suicide on 03.03.1998.

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The respondents pleaded not guilty to the charge framed against them by the trial court, and claimed to be tried. The prosecution examined 15 witnesses, and also proved Exts.P1 to P14 documents. Some material objects were also identified and marked as MO1 to MO4, during trial. When examined under Section 313 Cr.P.C., the two respondents denied the incriminating circumstances and submitted that they had not, in any manner, harassed the deceased, mentally or physically. In spite of opportunities, no defence evidence was adduced by the accused. On an appreciation of the entire evidence, the learned trial Judge found that the evidence given by the material witnesses is quite unsatisfactory and inconsistent, and that there is nothing in their evidence to prove the offences alleged. On the said finding, the two respondents (accused Nos.2 and 3) were acquitted by judgment dated 12.07.2002 in S.C.No.149/1999. Aggrieved by the said judgment of acquittal, the State has come up in appeal.

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On hearing and on a perusal of the case records, I find that the accused Nos.2 and 3 (respondents herein) were rightly acquitted by the learned trial Judge. The prosecution mainly relies on the evidence of PW3 to PW5, and also Ext.P4 series documents. PW3 and PW5 are the sisters of deceased Beevi, and

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Crl.Appeal No.1175 of 2002

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PW4 is the brother. All the three witnesses are consistent that dowry was fixed at the time of marriage, and that dowry was later demanded by the first accused. Mere demand for dowry will not invite a prosecution under Section 498-A IPC. For a prosecution under Section 306 IPC or under Section 304(B) IPC, it must be proved that the deceased put an end to her life due to the cruelty and harassment at the hands of her husband or in-laws, and there must be nexus between the commission of suicide and the alleged acts of cruelty. Of course, for a prosecution under Section 306 IPC, it is enough that the prosecution proves that the deceased died due to the mental or physical harassment at the hands of the accused, or that these harassments led to the commission of suicide. But for a successful prosecution under Section 304(B) IPC, it must be proved by the prosecution that the deceased had been subjected to mental or physical harassment soon before her death for or in connection with any demand for dowry. Physical or mental harassment soon before the death by demand of dowry is the essential ingredient under Section 304(B) IPC. Now, let me see whether there is any material in the evidence of PW3 to PW5 to prove the offences alleged. Ext.P4 series are some letters written to PW4 by the deceased. It is not known why the prosecution proved these letters. None of the

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Crl.Appeal No.1175 of 2002

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letters contain anything to indicate the cause of death. These contain only some communications between the brother and the sister. There is nothing in the letters to indicate that she had been mentally or physically harassed by her husband or in-laws by demanding dowry and ornaments, or otherwise. Thus, I find that there is absolutely nothing in these letters indicating the cause of death.

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PW5 is the brother of the deceased. His evidence is only that dowry was fixed at the time of marriage, and the dowry was later paid. His evidence does not contain anything regarding the cause of death. He does not even say how or why his sister died or committed suicide. It appears that the main witness is PW3. She has given evidence that her sister Beevi died due to the harassment made by the husband and the in-laws. But her evidence is not satisfactory and convincing. Her versions are not consistent with the versions of PW4 and PW5. On an examination of the evidence by PW3, I find that her evidence is prominently that dowry was fixed at the time of marriage and dowry was paid on demand, later. She does not satisfactorily depose when or how exactly the deceased was harassed by the respondents herein. PW5, the other sister has also stated about fixation of dowry and payment of dowry later, but her evidence is not

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Crl.Appeal No.1175 of 2002

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satisfactory regarding the alleged mental or physical harassment or torture. She has given a casual statement that her deceased sister Beevi had told her about her miseries in life. But she does not say when those statements were made, or on what occasion such statements were made. It appears that the main witnesses are mainly against the husband of the deceased. All are prominent in their evidence and statements regarding the harassment at the hands of the husband. As regards the respondents herein who are the parents-in-law, the evidence given by PW3 to PW5 is not convincing at all. Had the deceased been subjected to mental or physical harassment during the matrimony, she would have definitely mentioned her miseries in the Ext.P4 letters written to her brother.

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Just because the lady committed suicide within seven years from the date of marriage, the husband or the in-laws cannot be drawn to a prosecution under Section 498-A IPC or under Section 306 IPC or under Section 304B IPC. PW1 and PW2, examined as independent witnesses did not in any manner support the prosecution. PW3 to PW5 are consistent that dowry was fixed at the time of marriage, and it was later paid. PW4 and PW5 do not say the reason for commission of suicide by Beevi.

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It is true that in cases like this, the law under Section

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113A of the Evidence Act will presume abetment of suicide under Section 306 IPC, on condition that the prosecution has proved that the deceased had been subjected to mental or physical harassment. So also, the presumption under Section 113B of the Evidence Act is that in a case where a lady committed suicide, a case of dowry death can be presumed, if there is evidence to show that the lady had been subjected to mental or physical harassment for or in connection with any demand for dowry soon before her death. Thus, the presumption under Section 113A or under Section 113B of the Evidence Act is conditional. It not an absolute presumption. For drawing such a presumption, the prosecution must prove initially that the deceased had been subjected to mental or physical harassment. The question of presumption under Section 113A of the Evidence Act or under Section 113B of the Evidence Act comes only when the prosecution has discharged the initial burden. Here, in this case, I find that the evidence given by PW3 to PW5 is not convincing at all to prove that deceased Beevi had been subjected to mental or physical harassment by the respondents, for or in connection with any demand for dowry. There is nothing in their evidence to show that there was some nexus between the commission of suicide and the alleged acts of harassment. What is prominently proved

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Crl.Appeal No.1175 of 2002

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by PW3 to PW5 in evidence is that dowry was fixed at the time of marriage, and it was paid on demand later. Their evidence is not definite and consistent regarding any mental or physical harassment during matrimony, for or in connection with demand for dowry. I find that the respondents were rightly found not guilty by the learned trial Judge. Thus, I find that this appeal brought by the State against acquittal is liable to be dismissed. It is not known what happened to the case against original first accused later. Any way, the present appeal is only regarding the accused Nos.2 and 3. I find, on an appreciation of the entire evidence that the prosecution does not have any definite materials against these respondents.

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In the result, this appeal is dismissed, confirming the judgment of acquittal in favour of the respondents.

Sd/-

P. UBAID, JUDGE

// True Copy // P.A. to Judge

State of Kerala v. Hydrose

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State of Kerala v. Hydrose

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