Allowed

Sudheesh v. State of Kerala

Kerala HC20 Dec 2023CRL.A/665/2016

Case brief

AI extract

What is this about?

This appeal challenged the convictions of three accused for abetment of suicide. The High Court held the prosecution failed to prove instigation or abuse sufficient to drive the deceased to suicide. The appeal was allowed, impugned judgment set aside, and accused acquitted.

What did the court decide?

The appeal allowed. Impugned judgment set aside. Accused acquitted. Bail bonds cancelled. Accused set at liberty.

Sudheesh Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2023)

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THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 20TH DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945

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CRL.A NO. 665 OF 2016

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AGAINST THE ORDER/JUDGMENT DATED 15.06.2016 IN SC NO.212 OF 2013

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OF ADDITIONAL DISTRICT COURT & SESSIONS COURT, ERNAKULAM

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APPELLANTSACCUSED 1 TO 3:

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1 SUDHEESH,S/O. SUKUMARAN,KEEZHATHUKUDY VEEDU,NECHOOR KARA, MANEED VILLAGE.

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2 RAJENDRAN,S/O. THANKAPPAN,KULAPPURATHY VEEDU,VADAYAMPADYKARA, AIKARANADU SOUTH VILLAGE,(NOW RESIDING AT XII/217, KALAYIL VEEDU)

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3 DINU, W/O. RAJENDRAN,KULAPPURATHU VEEDU, VADAYAMPADYKARA,AIKARANADU SOUTHVILLAGE (NOW RESIDING AT XII/217, KALAYIL VEEDU)

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BY ADVS.SRI.M.TRIPTEN

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 SMT.VALSAMMA STEPHEN MUVATTUPUZHA

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY DY.S.P. OF POLICE,
MOOVATTUPUZHA POLICE STATION, PIRAVOM, CRIME
NO.229/2012 OF MOOVATTUPUZHA POLICE STATION, THROUGH
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
– 682 031.

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OTHER PRESENT:

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GP SMT SHEELA THOMAS

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.10.2022, THE COURT ON 20.12.2023 DELIVERED THE FOLLOWING:

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Crl. A. No. 665 of 2016

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MARY JOSEPH, J.

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- - - - Crl. A. No. 665 of 2016

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Dated this the 20^th day of December, 2023

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JUDGMENT

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The appeal on hand is filed by accused 1 to 3 in SC No.212/2013 on the files of Additional District and Sessions Court, Ernakulam (for short ‘the trial court’) who have been found guilty for an offence punishable under Section 306 read with Section 34 of the Indian Penal Code, 1860 (for short ‘the IPC’).

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Accused 1 and 3 were convicted and sentenced to

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undergo rigorous imprisonment for 2 years and to pay a fine of 25,000/- and in default of payment of fine, to undergo rigorous imprisonment for three months. Accused No.2 was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of 50,000/- under Section 306 r/w Section 34 IPC

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and in default of payment of fine, to undergo rigorous imprisonment for six months.

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Aggrieved by the finding of guilt, orders of conviction and sentence as above, the accused are now before this Court in the appeal on hand.

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Sri.Tripten, the learned counsel for the appellant contended vehemently that the trial court has relied mainly on a suicide note of deceased Shiliya, kept inside her brassieres and recovered by the police during the course of inquest mainly to arrive at a finding of guilt of the accused for the offence punishable under Section 306 read with Section 34 IPC. According to him, Ext.P1 only states that the accused are responsible for the death of Mrs.Shiliya. According to him, PW14 alone was questioned with reference to the contents of Ext.P1 and noneelse. The inquest was conducted by PW20 and it was witnessed by PW7. She was also not cross examined on the basis of Ext.P1. According to the learned counsel, the recovery of Ext.P1 from the body of the deceased was established by the oral evidence tendered by PW14 and PW7.

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As per the allegations of the prosecution, on 26.09.2011, accused No.1 married Shiliya, daughter of PW1, aged 25 years, at the Sub Registrar’s Office, Piravom. While

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residing together as husband and wife in the house bearing building No.XI/174 of Maneed Panchayat belonging to accused No.1, out of grudge against Shiliya for bringing her daughters in the first marriage with one Mr.Biju to the house, accused Nos.1 to 3 in furtherance of their common intention, subjected her to cruelty by torturing mentally and physically and the 2^nd accused also beat her on her face in the presence of CW4, her daughter on 05.05.2012. On 10.05.2012 morning also, the 1^st accused beat Mrs.Shiliya on her face in the presence of accused 2, 3 and CW6. Due to the mental and physical torture, on 10.05.2012, at about 9.30 a.m. Shiliya committed suicide by hanging at the roof of the house of 1^st accused. Thus, the accused were alleged to have committed the offences punishable under Sections 498A and 306 r/w Section 34 IPC.

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First Information Statement was lodged by the 1^st accused before the Assistant Sub Inspector of Police, Piravom Police Station (CW22) and on its basis Crime No.229/12 was registered. The case was investigated by the Sub Inspector of Police, Piravom (CW24) and Deputy Superintendent of Police, Muvattupuzha (CW25). On concluding the investigation, a

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chargesheet was laid before Judicial First Class Magistrate Court, Muvattupuzha. It was taken on file by the court as CP No.41/12. Copies of the relevant records pertaining to the case were served on each of the accused and the case was also committed to Court of Sessions, Ernakulam. The case was taken on file by that court as SC No.212/13 and made over to the trial court for trial and disposal.

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Pursuant to service of summons, the accused appeared. The learned Public Prosecutor and the learned counsel appearing for the defence were heard. Charge was framed against the accused for the offences punishable under Sections 498A and 306 read with Section 34 IPC. Charge when read over and explained was denied by each of the accused and they faced trial.

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On the side of the prosecution, PWs 1 to 20 were examined and Exts.P1 to P21 were marked. MOs 1 to 8 were identified. Concluding the prosecution evidence, the accused were questioned with reference to the incriminating circumstances brought out in evidence by the prosecution. The learned Public Prosecutor and the learned counsel for the accused

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were heard under Section 232 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’). Grounds having not been made out to record an order of acquittal of the accused, they were called upon to adduce evidence in defence. The accused did not adduce any evidence.

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The trial court appreciated the evidence and found on the basis of Ext.P1 that the guilt against all accused under Section 306 is proved. The trial court also found that evidence is totally lacking to establish the physical and mental torture suffered by Mrs.Shiliya at the hands of accused 1 to 3, but for the reason that a marriage was not subsisting among the 1^st accused and the deceased, found accused 1 to 3 not guilty for the offence punishable under Section 498-A and acquitted them.

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The mother of Mrs.Shiliya was examined as PW1 and she deposed about solemnisation of her marriage with the 1^st accused. According to her, Mrs.Shiliya was not in good terms with her and when the 1^st accused expressed his desire to marry her daughter, she discouraged him by disclosing about her first marriage with one Mr.Biju and birth of two girl children in that marriage and stoppage of pregnancy thereafter. According to

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her, against the warning, the 1^st accused married Mrs.Shiliya in the presence and support of her sister, husband and the mother of the 1^st accused.

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The children were entrusted to the care of an institution at Kaloor. After marriage Mrs.Shiliya and the 1^st accused came to her house and then went to the house of the 1^st accused for staying there for one week. When returned, Mrs.Shiliya told PW1 that the 1^st accused had agreed to arrange for a separate residence. But, he did not arrange for that, instead, he took Mrs.Shiliya and her younger daughter PW3 to the house of the 2^nd and the 3^rd accused. After one week, Mrs.Shiliya rang her up and told that she left the house of the accused after quarrelling with them. Mrs.Shiliya also requested PW1 to take back PW3 from the house of accused 2 and 3. Accordingly she went to the textile shop where Shiliya was working at the relevant time and PW3 was sent back with her. On 10.05.2012, she received a telephone call from 2^nd accused informing her about the chest pain Mrs.Shiliya has and her admission in the ICU of a hospital at Piravom, following that. She rushed to the place following a request made by the 2^nd accused

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and found Shiliya, dead. The accused were also present there. PW3 divulged to him about the physical assault met with by the deceased at the hands of accused Nos.2 and 3. From the dead body of Shiliya, a letter was recovered and marked in evidence as Ext.P1. PW1 has stated categorically that Ext.P1 was written and signed by her daughter Shiliya. Ext.P2 was recovered from the house of accused and it is nothing but a diary that belonged to Shiliya.

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PW2 examined by the prosecution was none other than the sister of PW1. According to her, PW1 was having two daughters and Shiliya was the elder one. Shiliya was married to Mr.Biju and two daughters were born in the wedlock. Their relationship was strained and they were residing separately. 1^st accused requested her to give Shiliya in marriage to him. Shiliya told her about the desire to get the disputes with Mr.Biju settled from court. Accordingly, a case was filed before Family Court, Ernakulam. Marriage of Shiliya with the 1^st accused was conducted in the presence of PW2, her husband and the mother of the 1^st accused. On 10.05.2012, she was informed about the attempt of Shiliya to commit suicide. She went to the Hospital at

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Piravom and found her dead. She was present during the inquest

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and in her presence, Ext.P1 was seized from the brassieres worn by Shiliya.

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The handwriting and signature in Ext.P1 were identified by her as that of Shiliya. According to her, Shiliya told her not to call her over phone as her in-laws did not like it. PW2 had also deposed to have noticed injury on the lip of Shiliya and a mark on her neck.

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PW3 is none other than the daughter of Shiliya. She was a girl child aged 6 years at the relevant time of death of Shiliya. She deposed that herself and Shiliya stayed at the house of the 1^st accused for one week and on a fine day during that period, 1^st accused beat her mother on her face in her presence.

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PW4 is the brother of PW1. He deposed to have been informed by PW1 on 10.05.2012 that Shiliya is no more. He went to Medical College Hospital, Alappuzha to see her body. According to him, he noticed finger marks on her face and a wound on her lip.

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PW5 is the mother of the 1^st accused. She admitted

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that the marriage of his son with Shiliya was registered at

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Sub-Registrar’s office at Piravom. According to her, children of Shiliya were never brought to their house. Shiliya came to their house and on the morning succeeding her arrival, she was found hanging in a shawl in the roof of their house. Herself and the 1^st accused brought her body down. Other aspects found recorded from her by the police during investigation were denied by her and thus she was declared as hostile.

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PW6, another sister of PW1, deposed about the marriage of Shiliya with the 1^st accused and that there were frequent quarrels since the in-laws did not like herself bringing the children to their house. She went to the hospital to see the body of Shiliya. There, PW1 told her that on the day preceding the death of Shiliya, 1^st accused and Shiliya had a quarrel and in the midst, she was also beaten by him.

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PW7 is a member of the Panchayat, where the accused were residing. According to her, the accused are her neighbours. She went to the hospital on getting information about the death of Shiliya and signed the inquest report as its witness. According to her, she noticed a mark on the face of Shiliya and an injury on her lip.

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PW8 is a neighbour of the accused, who had attested the scene mahazar marked in evidence as Ext.P4. PW9 is none other than the then Village Officer of Maneed Village Office and she deposed about the preparation of a site plan on the request of the police, which was marked in evidence as Ext.P5. PW10 deposed that he had issued the Marriage certificate of Shiliya and 1^st accused during his tenure as Sub Registrar, Piravom.

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PW12, who was the Secretary of Maneed Grama Panchayat admittedly issued the Certificate of ownership of the house of the accused marked in evidence as Ext.P8. According to him building bearing No.IV/405 A (XI/174) was owned by one Mr.K.K.Sukumaran.

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PW13, who was the Secretary of Poothruka Grama Panchayat deposed to have issued Ext.P9, a certificate of ownership of building No.XII/217 and as per that, the building belongs to one Mr.Baby.

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According to PW14, the then Tahasildar of Muvattupuzha, as informed by the police, she went to Government Hospital, Priavom on 10.05.2012 and witnessed the inquest of the body of Shiliya and signed the report of inquest,

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marked in evidence as Ext.P3. She deposed that in her presence, Ext.P1 was recovered from the brassieres worn by Shiliya.

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PW15 is a neighbour of accused Nos.2 and 3. He was present when the house of accused Nos.2 and 3 were inspected by the police and attested Ext.P10 scene mahazar prepared by them, as a witness.

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According to PW16, he owned a house at Choondi and

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it was given on rent to the 2^nd accused, who was staying there from 2009 to 2012.

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PW17 is none other than the DySP of Muvattupuzaha and he took over the investigation in the case on 11.05.2012. Ext.P10 scene mahazar was prepared by him. Ext.P11 rental agreement was seized by him from the house of 2^nd and 3^rd accused. Site plans and certificate of ownership of the building were obtained by him. Marriage certificate of Shiliya and the 1^st accused was also collected by him. After completion of the investigation, he laid a final report before the court chargesheeting accused Nos. 1 to 3.

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PW18 was the Assistant Sub Inspector of Police, Piravom Police Station. He deposed to have recorded the FIS given to him by the 1^st accused, marked in evidence as Ext.P13. FIR was also registered on the basis of Ext.P13.

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PW19 was the Assistant Professor of Forensic Medicines who conducted the autopsy examination on the body of Shiliya from Medical College Hospital, Alappuzha. He had noticed ligature marks on the neck of Shiliya and five other antemortem injuries. According to him, his findings in the autopsy examination were consistent with death due to hanging. He deposed during examination that the ante-mortem injuries noted as 1 to 5 in Ext.P15 report of autopsy could also be caused by a slapping on the face. Admittedly Ext.P16 report was prepared by him on the basis of Exts.P17 and P18 reports received from the Chemical Examiner’s Laboratory.

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PW20 is none other than the Sub Inspector of Police who conducted preliminary investigation in the case. He gave report to the Tahsildar and conducted the inquest. Ornaments and dresses collected from the body of Shiliya during inquest were forwarded to the court. Ext.P1 recovered from the body

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was also forwarded to the court. The shawl used for hanging and a diary were also seized by him after preparing a mahazar. Ext.P19 report was filed before the court to alter the charge. Further investigation was handed over to DySP, Muvattupuzha. As directed by him, on 27.05.2015, he arrested the 1^st accused. Arrest Memo and Inspection Memo (Exts.P20 and P21) were prepared by him during arrest.

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Ext.P1 is a crucial document in the case. Though the prosecution allegations were to the effect that there were quarrels among Shiliya and 1^st accused for the reason of the latter bringing her children in her first marriage to their house for stay, none of the witnesses of the prosecution examined, have spoken accordingly. PW3, the younger daughter deposed that herself and Shiliya went to the house of accused to stay there and there, the 1^st accused beat her mother on her face. PW3 was a child then studying in 5^th standard. She had not spoken about the reason for the quarrel. She had also not spoken about the involvement of accused Nos. 2 and 3 in the quarrel. She has not spoken specifically about any incident of quarrel among the deceased and the accused. Neighbours of the accused were

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examined by the prosecution. But, none of them have stated anything about the frequent quarrels that the accused and Shiliya had. PW2 has deposed as if she was informed by Shiliya that the in-laws did not like her attending the incoming calls in her mobile phone. PW6 deposed as if Shiliya herself told about the quarrels among herself and the accused.

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PW3 alone was with Shiliya at the house of the accused on the day preceding her death by hanging. The autopsy examination also confirms death by hanging. PW3 deposed to have witnessed the 1^st accused slapping her mother on her face on the day preceding her death. The ante-mortem injuries found on the body of Shiliya was reported by PW19 are likely to be caused in a slap on face. PW3 has not spoken that any of the accused had uttered any words, to instigate her to commit death by hanging.

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Ext.P1 was established from the versions of the officials who conducted the inquest and the witnesses who were present and signed the report of inquest, as seized from the body of the deceased. The contents of Ext.P1 was to the effect that

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Shiliya committed suicide due to the mental as well as the physical torture by the accused.

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What was the instigation from the accused to drive Shiliya to commit suicide is not brought out by the prosecution. None of the witnesses who identified the handwriting and signature in Ext.P1 as that of Shiliya were cross examined by the accused. In effect, a challenge was not raised against the handwriting and signature of Shiliya in Ext.P1. Therefore, there is every reason to take a view that the handwriting and signature in Ext.P1 was authored by Shiliya.

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Then the question that requires consideration is whether the written matter in Ext.P1 is sufficient to establish abetment of Shiliya by the accused, to commit suicide by hanging.

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Section 306 IPC is extracted hereunder:

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“ 306. Abetment of suicide .—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

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The word abatement as defined under Section 107 IPC

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is also extracted hereunder to have an idea about the ingredients

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constituting the same.

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“107. Abetment of a thing

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A person abets the doing of a thing, who—

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First — Instigates any person to do that thing; or

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Secondly —Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

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Thirdly—Intentionally aids, by any act or illegal omission, the doing of that thing.”

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From a reading of the contents of Ext.P1, this Court is

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not convinced that the accused instigated Shiliya or that they abetted the commission of suicide by Shiliya. The prosecution thoroughly failed to prove the reason behind the quarrels alleged by it. The prosecution also thoroughly failed to establish that frequent quarrels were there among Shiliya and the accused. None of the witnesses deposed to have direct knowledge about

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the incident that occurred on the day preceding the death of

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Shiliya or on any day prior to that. It is not indicated from Ext.P1 that the accused instigated Shiliya and thereby she was driven to commit suicide by way of hanging. Therefore, the trial court is totally erred in arriving at a finding of guilt of the accused for an offence under Section 306 read with Section 34 IPC. The finding of guilt, orders of conviction and sentence imposed on the accused are liable to be reversed.

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In the result, the appeal is allowed. The impugned judgment is set aside and the accused are acquitted for the above offence. Their bail bond is ordered to be cancelled and they are set at liberty forthwith.

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Sd/- MARY JOSEPH

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ttb

Sudheesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sudheesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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Case details

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