Santhamma And Another vs State Of Kerala
2023 Latest Caselaw 1624 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MRS. JUSTICE C.S. SUDHA
    FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
                     CRL.A NO. 2464 OF 2006
    AGAINST THE JUDGMENT IN SC 72/2003 DATED 15.12.2006
OF ADDITIONAL DISTRICT & SESSIONS JUDGE(FAST TRACK) COURT-
                     I, THIRUVANANTHAPURAM
           CP 31/2002 OF ADDITIONAL CHIEF JUDICIAL
                 MAGISTRATE,THIRUVANANTHAPURAM
APPELLANTS:

     1.    SANTHAMMA,
           W/O.SUKUMARAN NAIR, T.C.27/670, MURALI BHAVAN,
           THACHAKUDI LANE, AMBALATHUMUKKU, RISHIMANGALAM
           WARD, VANCHIYOOR VILLAGE.
     2.    MURALI, SO.SUKUMARAN NAIR,
           T.C.27/670, MURALI BHAVAN, THACHAKUDI LANE,
           AMBALATHUMUKKU,RISHIMANGALAM WARD, VANCHIYOOR
           VILLAGE.
           BY ADVS.
           SRI.S.RAJEEV
           REGHU SREEDHARAN
           P.VIJAYA BHANU (SR.)(K/421/1984)


RESPONDENT:

1          STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM,
           (CRIME NO.206/2001 OF VANCHIYOOR POLICE
           STATION).
           BY ADV SANAL P. RAJ, PUBLIC PROSECUTOR

      THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.2464 of 2006
                                        2


                               C.S.SUDHA, J.
                    ....................................................
                    Criminal Appeal No. 2464 of 2006
                    ...................................................
                   Dated this the 27th day of January, 2023


                               JUDGMENT

C.S.Sudha, J.

This appeal under Section 374(2) Cr.P.C. has been filed by the 1 st and

the 2nd accused in S.C.No.72/2003 on the file of the Court of Sessions,

Thiruvananthapuram, challenging the conviction entered and sentence passed

against them for the offences punishable under Sections 304B and 498A read

with Section 34 IPC.

2. The prosecution case as narrated in the charge sheet is as follows:

the marriage of the deceased, Anitha Kumari, to the 2 nd accused was

solemnized on 21.11.1991 as per the rites and customs of the community to

which they belong. At the time of the marriage, 70 sovereigns of gold

ornaments and 21 ½ cents of property with a residential building were given

as dowry to Anitha Kumari. The 1st accused is the mother of the 2nd accused;

the 3rd and the 4th accused are his sisters and the 5th accused, his father. After Crl.Appeal No.2464 of 2006

the marriage, Anitha Kumari and the 2 nd accused were residing in the house of

his parents. The 3rd and the 4th accused; his sisters were residing in separate

houses in the same compound. When Anitha Kumari became pregnant, the

doctor advised her bed rest and so, she was taken to her parents' home. While

so, on a day in April 2000, the 2nd accused directed Anitha Kumari to ask her

father to give ₹50,000/- more as dowry. Anitha Kumari refused to accede to

the demand saying that only five months had elapsed after their marriage, at

which time, though her father had agreed to give only 50 sovereigns, he had

given 20 sovereigns more. Therefore, she said that she would not make any

further demands to her father. Hearing this the 2 nd accused, retorted that he

knew how to make her obey him and then grasped her tightly by the chin,

causing contusion on both her cheeks. The gold ornaments of Anitha Kumari

were sold by the 2nd accused by making her believe that the money obtained

from the sale would be utilized for lending it on interest. However, contrary to

the promise made, the 2nd accused cheated her by giving the money to the 5 th

accused, who cleared his outstanding debts, which he had incurred in the

conduct of the marriage of his daughter. Nine months before the death of

Anitha Kumari, she gave birth to twin boys. All the accused attended the Crl.Appeal No.2464 of 2006

naming ceremony (നൂലുകെട്ട്) of the twin boys. In the evening, after everybody

had left, the 1st and the 2nd accused asked Anitha Kumari to show them the

gifts received from the relatives. Anitha Kumari complied with the request

made. The accused then took a list of the gift articles received and they also

questioned Anitha Kumari, whether she had received any cash as gift. This

incident hurt Anitha Kumari, who was quite unhappy over the same.

2.1. On the 89th day after her delivery, Anitha Kumari and her twin

boys were taken to the house of the 2nd accused. While so, saying that the 2nd

accused intends to construct a house adjacent to the house of his parents, all

the accused demanded Anitha Kumari to tell her father to sell the 21 ½ cents

of property given to her at the time of marriage. Demanding so, the 2nd

accused at the instigation of the other accused, used to physically and mentally

harass Anitha Kumari. During Thiruvonam day (prosecution has chosen to

give the month and year in Malayalam- that is, in the month of Chingam in the

year 1177), Anitha Kumari was not given food, as she had failed to persuade

her parents to sell her property and give the money to the 2 nd accused for the

construction of the building. On the said day, the 2nd accused beat Anitha

Kumari and the other accused scolded her. Further, one month before Crl.Appeal No.2464 of 2006

12.10.2001 and the day previous to the day on which Anitha Kumari

committed suicide, her parents had sent sawn timber for being used in the

residential building being constructed by the 2nd accused. When the timber

arrived at their house, all the accused scolded Anitha Kumari saying that the

quantity of timber fell short of the quantity promised and that some timber had

been taken by Anitha Kumari's father. The 1 st, 3rd and 4th accused persons also

mentally harassed Anitha Kumari by accusing her of having illicit relation

with the husband of the 3rd accused. Anitha Kumari fed up with the continuous

and repeated mental and physical harassment by the accused, committed

suicide on 10.10.2001 at 8.30 pm in the bed room of the house of the accused

by hanging herself. Anitha Kumari was taken to the hospital, where she

breathed her last on 11.10.2001 at 4.45am. Before committing suicide, she had

left a suicide note saying that her mother-in-law is responsible for her death.

Thus, the accused are alleged to have committed the offences punishable

under the aforementioned sections

3. On the basis of Ext.P15 FIS dated 11.10.2001 given by CW1, the

paternal uncle of the deceased, Ext.P15(a) FIR, that is, Crime No.206/2001,

Vanchiyoor Police Station, Thiruvananthapuram was registered by PW18, Crl.Appeal No.2464 of 2006

Kuttappan, the then Additional Sub Inspector of Police. PW19, the then Sub

Inspector of Police, Vanchiyoor Police Station conducted the initial

investigation. PW20, the then Assistant Police Commissioner, Shangumugham

Sub Division, Thiruvananthapuram, took over the investigation, completed the

investigation and submitted the charge sheet against A1 to A5, namely, the

mother-in-law, the husband, the sisters-in-law and father-in-law respectively

of the deceased, Anitha Kumari, alleging commission of the offences

punishable under the aforementioned sections.

4. On submission of the final report before the Additional Chief

Judicial Magistrate Court, Thiruvananthapuram, the case was taken on file as

C.P.No.31/2002, pursuant to which the case was committed to the Sessions

Court. The case was taken on file as S.C.No.72/2003. On appearance of all the

accused before the Court of Sessions, they were furnished with the copies of

all the prosecution records. On 03/07/2006, the Court framed a charge for the

offences punishable under Sections 304B and 498A read with Section 34 IPC,

which was read over and explained to all the accused, to which they pleaded

not guilty. The prosecution examined PWs 1 to 20 and got marked Exts.P1 to

P24 and MO1 to MO3 in support of their case. After the close of the Crl.Appeal No.2464 of 2006

prosecution evidence, all the accused were questioned under Section 313(1)(b)

Cr.P.C with regard to the incriminating circumstances appearing against them

in the evidence of the prosecution. All the accused denied those circumstances

and maintained their innocence.

5. As the Sessions Court did not find it a fit case to acquit the

accused under Section 232 Cr.P.C., the accused were asked to enter on their

defence and adduce evidence in support thereof. DWs 1 and 2 were examined

and Exts.D1 to D4 series were marked on the side of the accused.

6. On a consideration of the oral and documentary evidence and

after hearing both sides, the Sessions Court by the impugned judgment

acquitted the 3rd, 4th and the 5th accused of all the offences charged against

them. The 1st and the 2nd accused have been convicted and sentenced for the

offence under Section 498A read with Section 34 IPC to undergo rigorous

imprisonment for two years each and to pay a fine of ₹15,000/- each and in

default of payment of fine, to undergo rigorous imprisonment of six months

each. They have also been convicted and sentenced under Section 304B read

with Section 34 IPC to undergo rigorous imprisonment for seven years each.

The substantive sentences have been directed to run concurrently. It has been Crl.Appeal No.2464 of 2006

further ordered that out of the fine amount, an amount of ₹25,000/- shall be

paid to the legal heirs of deceased Anitha Kumari as compensation under

Section 357(1) Cr.P.C. Taking into account the fact that the 1 st accused was in

judicial custody from 09/11/2001 to 30/11/2001 and from 13/12/2006 to

15/12/2006, the day of the pronouncement of the judgment and the 2 nd accused

in custody from 13/10/2001 to 21/11/2001 and from 13/12/2006 to

15/12/2006, they were held entitled to set off. It is this judgment, which has

been assailed in this present appeal.

7. On 18/12/2006, this Court directed the execution of the sentence

to stand suspended and both the accused were granted bail. In the appeal

memorandum, it is alleged that the trial court without properly appreciating

the facts, circumstances and evidence has wrongly convicted the 1 st and the 2nd

accused. The trial court failed to take note of the contradictions in the

testimony of the witnesses, which witnesses are also interested witnesses. The

trial court failed to properly appreciate the testimony of the defence witnesses

and rejected their evidence without giving any reasons. Ext.P1 alleged to be

the suicide note has been manipulated by the relatives of the deceased, which

was also not taken note of by the Court. Hence, the judgment convicting and Crl.Appeal No.2464 of 2006

sentencing the accused persons is liable to be set aside, contends the accused.

8. The only point that arises for consideration in this appeal is whether

the conviction entered and sentence passed against the 1st and the 2nd accused

by the Sessions Court is sustainable or not.

9. Heard Adv. Vijayabhanu, the learned senior counsel for the 1st

accused assisted by Adv. Sruthy, Adv. Aneer M.S., the learned counsel for the

2nd accused and Adv. Sanal P. Raj the learned Public Prosecutor for the

respondent.

10. I make a brief reference to the evidence adduced by the

prosecution as well as the accused persons. PW1 the brother of the deceased,

when examined deposed that it was agreed that 50 sovereigns of gold

ornaments would be given to his sister at the time of marriage. Though only

50 sovereigns had been promised, 70 sovereigns was given by his father. In

addition, 21½ cents and the house in which they were residing was also given

to his sister. While his sister was carrying the twins, as per medical advice she

was staying in the parents' house. During the said period, the 2 nd accused, her

husband, used to come home to visit his sister. During A2's visits, his sister

and the former used to have their conversations in their bedroom. Thereafter, Crl.Appeal No.2464 of 2006

when his sister comes out of the room, he had seen her with a worried face. He

had inquired the reason and then his sister had told him that her husband had

demanded her to ask her father for ₹50,000/-. This money, according to PW1,

was demanded by the 2nd accused for clearing the debts of the latter's father,

namely, the 5th accused. When his sister refused to accede to the demand of the

2nd accused, the latter caused hurt his sister by grasping her firmly/tightly by

her cheek. PW1 admitted that he had not directly seen this incident, but he was

informed of the same by his sister. All the accused had attended the naming

ceremony (നൂലുകെട്ട്) of the twin boys born to his sister. After the ceremony A3

to A5 left early. However, A1 and A2 stayed back. In the evening, they asked

his sister to show them the gifts received on the day. His sister showed them

the gold ornaments received as gifts. The 1st and 2nd accused made a list of the

gifts. To a question by the public prosecutor as to why such a list was

prepared, PW1 replied that it may be because the 1 st and 2nd accused did not

trust them. This incident distressed/pained his sister and family. Thereafter, on

a day the 1st and the 2nd accused had come to visit his sister after her delivery.

There was some delay in his sister opening the door as she was recuperating

after the cesarean delivery. Annoyed by the delay in opening the door, the 2 nd Crl.Appeal No.2464 of 2006

accused slapped his sister on her cheek. He had asked the 2 nd accused why the

latter had beaten his sister. He did not further pursue the matter as he did not

want to cause any further trouble to his sister. On the 89 th day, his sister was

taken back to the house of the accused. He and his parents used to visit his

sister but were never able to talk to her privately as A1, A3 or A4 would

always be around or near her. PW1 also deposed that his sister had informed

him that the 2nd accused had demanded her gold ornaments to be sold. Then

his sister told the 2nd accused that there was no necessity to sell the gold

ornaments or the property and that both of them could stay in the house

situated in the property that has been gifted by her parents at the time of

marriage. He was told about this incident approximately two months before

his sister committed suicide. PW1 further deposed that on thiruvonam day, his

sister had rung him up and told him that she was not given food by the

accused. However, PW1 when asked the reason for the same, replied that he

does not remember the same.

10.1. PW1 also deposed that A2 had demanded that the property

given to his sister as dowry be sold for the purpose of constructing a house

near the family house of the 2nd accused. According to PW1, two jack fruit Crl.Appeal No.2464 of 2006

trees standing in the property given to Anitha Kumari had been cut and the

sawn timber was kept in their family house. The timber of one of the trees was

sent to the house of the accused. But when the timber reached their house all

the accused scolded his sister by accusing her that the entire timber had not

been sent and that her father had taken some out of the same. His sister had

informed them of the incident over the phone. On the night of the same day at

8:30 p.m., some person telephoned his residence and informed that his sister

has been admitted in the hospital in an unconscious state. Though he inquired

as to who the caller was, the call was disconnected without the caller

identifying himself. Immediately, he along with his brother went to the

medical college hospital where he found his sister in an unconscious state. His

sister passed away next morning at 4:45 a.m. According to PW1, Ext.P1 is the

suicide note of his sister. Ext.P2 series are the note books containing the

handwriting of his sister, which were used for comparing the hand writing of

his sister found in Ext.P1.

11. PW2, the mother of the deceased, and PW3 an aunt of the

deceased also speaks of the acts of cruelty referred to by PW1. Crl.Appeal No.2464 of 2006

12. PW4 a neighbour of the accused, deposed that on the day of

the incident he had gone to the house of the accused on hearing cries. When he

reached there, he saw Anitha Kumari hanging from the ceiling. He cut the

rope and laid her on the cot. The 5th accused and a sister of the 2nd accused

were present in the house. He along with the 5 th accused and PW5 took Anitha

Kumari to the hospital. He denied having any knowledge as to the reason

which prompted Anitha Kumari to commit suicide. He was declared hostile

and the prosecutor was permitted to put questions as put in the cross

examination.

13. PW5, another neighbour of the accused, was asked in his chief

examination whether any incident had happened in the morning of 10.10.2001,

to which he answered that he had heard the 1 st and the 3rd accused scolding

Anitha Kumari regarding the timber brought from the house of the latter. He

heard them scolding her regarding shortage of timber. In the evening also he

heard some quarrel from the house of the accused. He heard women

speaking/talking in the house of the accused. But he could not make out what

exactly was their conversation. In the night, he heard cries from the house of

the accused. When he looked out of the window of his house, he saw PW4 Crl.Appeal No.2464 of 2006

jumping over the compound wall to reach the house of the accused. PW4 then

told him that Anitha Kumari had hung herself and therefore needs to be taken

to the hospital. His vehicle was asked for and so he along with the 5 th accused

and PW5, took Anitha Kumari to the hospital.

14. PW6 another neighbour, deposed that he is residing about half a

kilometer away from the residence of the accused. He knew Anitha Kumari.

About 1-1 ½ months before Anitha Kumari died, while he was passing

through the road in front of the house of the accused, he had heard a quarrel.

According to PW6, a house was being constructed in the property and for

completing the construction of the building, he heard demands being made for

selling the property given to the deceased as dowry.

15. PW7 when examined, deposed that he knows Anitha Kumari and

that he had gone for work in the house of the deceased. On a day in 2001, that

is, the day before Anitha Kumari died, he had gone to her husband's house

with timber, which was taken in a bullock-cart. When he reached the house of

the accused, the 1st and the 2nd accused were present. When half of the timber

had been unloaded, the 1st and the 2nd accused said that there was shortage of

timber and that the entire sawn timber kept in the house of the parents of Crl.Appeal No.2464 of 2006

Anitha Kumari had not been sent over and saying this they scolded Anitha

Kumari. He then saw Anitha Kumari going inside the house crying. After

unloading the timber, he returned.

16. PW8, Security Guard, Medical College Hospital,

Thiruvananthapuram, when examined deposed that on a day in 2001 between

8.30 p.m. and 9 p.m., a lady in an unconscious state had been brought in a

Maruti car to the casualty of the hospital. There were three men in the car of

which one of them was the 5th accused. He took the lady in a stretcher to the

casualty. On enquiry with the 5th accused, the latter replied that the lady is his

neighbour.

17. The President of the Cheruvakkal Karayogam during the period

2000-2001 examined as PW9 deposed that the activities of Karayogam

include house visits also and in connection with the same he had gone to the

house of Anitha Kumari during which time she was carrying. When he spoke

to Anitha Kumari, he found her quite worried and unhappy. Anitha Kumari

informed him that she was being subjected to scolding on a daily basis in the

house of the accused demanding sale of the property given to her. He

contacted the Karayogam of the 2nd accused. Thereafter he heard no Crl.Appeal No.2464 of 2006

complaints. Later on, he heard the death of Anitha Kumari. In the cross

examination he deposed that if any complaints are received which require

redressal, the same would be recorded in the NSS Karayogam.

18. PW10 an attestor to Ext.P8 inquest report, when examined

deposed that at the time of the inquest, a piece of paper had been seized, which

is Ext.P1. In the cross examination he deposed that he had not seen from

which part of the body, the police had seized Ext.P1. He had seen the same

with the police.

19. PW11 an attestor to Ext.P9 mahazar deposed that he had not

seen the police seizing the wedding card or wedding invitation from the house

of the accused.

20. The then Tahsildar, Thiruvananthapuram, examined as PW12

deposed that he had conducted the inquest and prepared Ext.P8 inquest report.

While preparing the report, he had seized/recovered Ext.P1 from the left side

of the brassier worn by Anitha Kumari. He had also seized the nighty, brassier

and underskirt worn by the deceased, which are MO2 series. In the cross

examination he denied the suggestion that Ext.P1 had been handed over to him

by the police during the time of the inquest.

Crl.Appeal No.2464 of 2006

21. PW13 deposed that, on 11.10.2001 while he was working as

the Medical Officer in the Department of Forensic Medicine, Medical College

Hospital, Thiruvananthapuram, he had conducted the postmortem examination

on the body of Anitha Kumari and issued the postmortem certificate which

contains his signature. The postmortem certificate has been marked as

Ext.P10. PW13 spoke of the contents in Ext.P10 which are as follows:

"Body was that of a moderately built and nourished adult female of height 157cm and weight 60Kg. Eyes were closed. Pupils were dilated and equal. Conjunctivae were congested. Tip of tongue protruded and not bitten. Fine blood stained while froth was seen at nostrils. Other body orifices including vagina were normal. Hymen showed healed tears. Vagina admitted two fingers. Nails were bluish. Striae were seen on the lower abdomen. Needle puncture marks seen on the front of right elbow and back of right wrist.

Rigor mortis was fully established and retained all over the body. Postmortem staining was seen at the back and was not fixed. There was no sign of decomposition of the body. (Body was kept in cold chamber).

INJURY (ANTEMORTEM):

Slightly faint pressure abrasion (ligature mark) 24cm long, non continuous, obliquely placed on the neck above the level of thyroid cartilage in front being 6cm below the chin (2cm broad), 8cm below right ear lobule (1cm broad) and 5cm below left ear lobule (1cm broad) with the discontinuity of 15cm at the back.

Crl.Appeal No.2464 of 2006

On flap dissection of neck done under bloodless field, the subcutaneous tissue underneath the injury, hyoid bone, cartilages and other neck structures were found to be intact.

Air passages contained blood stained frothy fluid. Both lungs were congested and oedematous. Stomach contained 50ml of reddish fluid without any unusual smell. Its mucosa was congested. Uterus measured 9X5X2.5cm. Its cavity was empty. Its endometrium was haemorrhagic and its appendages were normal. Urinary bladder was empty, otherwise normal. All other internal organs were congested otherwise normal.

The relevant clinical case sheet bearing IP No.129204 of Medical College Hospital, Thiruvananthapuram was perused at autopsy.

Samples of viscera and blood were preserved and sent for chemical analysis.

OPINION AS TO CAUSE OF DEATH:

Postmortem findings are consistent with death due to the combined effects of construction of neck and poisoning. Final opinion is reserved pending the report of chemical analysis."

22. PW14 an attestor to Ext.P14 mahazar deposed that the said

mahazar was prepared when Ext.P2 series note books were seized. However,

according to him, he had signed Ext.P14 mahazar in the office of the

Assistant Commissioner of Police.

Crl.Appeal No.2464 of 2006

23. PW15 is the father of deceased Anitha Kumari. PW15 deposed

that he had given 70 sovereigns of gold ornaments and property comprising

21½ cents and a house, as dowry to his daughter. To a question as to how the

married life of his daughter was, PW15 answered that during his visits to his

daughter's house, she had told him that A1, A2, A3 and A5 had demanded

more money and the sale of the property given to her. PW15 too speaks of

the other incidents spoken to by PW1. He also deposed that it was his

brother, namely, CW1, who had informed the police, on the basis of which

the crime was registered. PW15 identified the signature of CW1 in the FIS

and hence the FIS has been marked as Ext.P15. He also deposed that the

handwriting in Ext.P1 is that of his daughter. In the cross examination he

deposed that the 2nd and 5th accused had not directly demanded any money as

dowry from him. He had also not given any money as dowry at the time of

marriage. When he used to visit his daughter after her marriage, he used to

give her money, which according to him is also not dowry.

24. PW16, the Joint Director & Head of Department, Forensic

Science, in the Kerala Police Academy, Thrissur deposed that while he was

working as Assistant Director Documents in the FSL, Thiruvananthapuram, Crl.Appeal No.2464 of 2006

during the period 1990-2003 he had examined the questioned documents in

this case along with the standard documents, which were received from the

Court. Ext.P1 is the questioned document and Ext.P2 series writings in the

note books are the standard documents. Exts. P1 and P2 series were

thoroughly examined and a report submitted to the court which contains his

signature. The report has been marked as Ext.P16. According to PW16, the

person who wrote the standard writings marked Exts.A1 to A40 has also

written the questioned writings seen in Ext.P1 slip of paper.

25. PW17, then Village Officer, Vanchiyoor when examined,

deposed that he had prepared Ext.P17 site plan in this case.

26. PW18 when examined deposed that on 11.10.2001 at 8.30 a.m.

while he was working as the Additional Sub Inspector of Police, Vanchiyoor

Police Station, he had recorded Ext. P15 FIS of CW1, on the basis of which

the crime was registered and the FIR prepared which has been marked as

Ext.P15(a). According to him, the further investigation was conducted by

PW19.

27. PW19, the then Sub Inspector of Police, Vanchiyoor Police

Station, when examined deposed that on 11.10.2001 he had taken over the Crl.Appeal No.2464 of 2006

investigation in this case. On the same day at 3.30pm, he had proceeded to

the scene of occurrence and prepared Ext.P9 mahazar on the basis of which

he had seized the wedding cassette of the deceased, a piece of the saree with

which Anitha Kumari had hung herself, the wedding invitation card and

cover, as well as the wedding photos. The cassette has been marked as MO1;

the wedding invitation letter and cover as Ext.P4 series, the photo as Ext.P15

and the piece of the saree recovered as MO3. He had questioned witnesses

namely, Girija Chandrasekharan Nair, Chakrapani, Anila Kumari and had

recorded their statements. He also questioned PW1 to PW3 and had recorded

their statements. His investigation revealed that Anitha Kumari had

committed suicide as the accused had harassed her demanding dowry. He

submitted Ext.P19 report to the court stating that investigation is proceeding

relating to offences punishable under Sections 304B, 498A IPC read with

Section 34 IPC. He had also submitted Ext.P20 report for forwarding the

records of the case to the ACJM Court. Thereafter, the investigation was

taken over by PW20. In the cross examination PW19 was asked whether,

during the course of investigation that he is stated to have conducted on the

11th & 12th, he had an occasion to see Ext.P1, to which he answered in the Crl.Appeal No.2464 of 2006

affirmative. But he deposed that he had not conducted any investigation

relating to the same.

28. Finally, the Investigating Officer, the then Assistant

Commissioner of Police, Shangumugham, Thiruvananthapuram, was

examined as PW19. According to PW19, he had taken over the investigation

of the case on 13.10.2001. On the said day at 3.00 p.m. he had arrested the

2nd accused from the railway station, Thampanoor, and produced him before

the court along with the remand application. He questioned the Tahsildar

who had prepared the inquest report and also the other witnesses. On

10.01.2001 and 28.01.2001 he had seized Ext.P2 series note books

containing the handwriting of the deceased, which were seized as per

Ext.P21 series mahazars. Ext.P3 deed as per which PW2 had given the

property to Anitha Kumari, was seized as per Ext.P22 mahazar. Ext.P7

marriage register was seized as per Ext.P6 mahazar. The 5th accused had

obtained anticipatory bail from the Sessions Court, Thiruvananthapuram,

pursuant to which the 5th accused appeared before him on 03.11.2001 with

sureties. He recorded the arrest of the 5 th accused and released him on bail.

The 1st accused was arrested on 09.11.2001 at 11.45 a.m. from the bus stand Crl.Appeal No.2464 of 2006

at Thampanoor. She was produced before the court along with a remand

application. The case sheet relating to the treatment of the deceased was

seized as per Ext.P23 mahazar. Ext.P13 is the copy of the case sheet showing

the treatment details of the deceased. He inspected the scene of occurrence

and found that the measurements given in Ext.P9 scene mahazar of the bed

room where the deceased had hanged herself was incorrect and therefore, he

submitted Ext.P24 report before the court giving the correct measurements.

He thereafter completed the investigation and submitted the final report

before the court.

29. DW1 and DW2 were examined on behalf of the accused. DW1

when examined deposed that he is an amateur photographer and that he

knows the accused persons in this case. According to him, he had taken the

wedding photographs of the 2nd accused and also the photos of the naming

ceremony of the twin boys. The photos and negatives have been marked as

Ext.D2 to Ext.D3 series.

29.1. DW2 is a head-load worker. He deposed that he knows the

accused persons. To a question whether he is aware that a death had taken

place in the house of the accused, he answered in the affirmative. To a further Crl.Appeal No.2464 of 2006

question, whether on the day the death occurred, he had gone to their house

for any work, he answered that he had unloaded the timber brought to the

house of the accused in a bullock-cart. According to DW2, from the main

road there is a small lane leading to the house of the accused. Vehicular

access is not possible through the said lane. Therefore, the bullock-cart was

stopped at the main road, from where the timber was manually carried to the

house of the accused. DW2 deposed that he does not remember the date on

which he had unloaded the timber. For unloading, there were CITU and

INTUC head load workers. They were paid ₹250/- by Murali's (A2) father

(A5). They returned on being paid the unloading charges. In the cross

examination he was asked whether there was any quarrel alleging shortage in

timber, to which he answered that Murali's (A2) mother (A1) had asked

whether for unloading the timber brought, the charge as demanded by the

workers was necessary.

30. Now the question is whether the aforesaid evidence proves the

offences alleged to have been committed by the accused. I will first deal with

the offence punishable under Section 304B IPC, the ingredients thereof are: (i)

death of the woman concerned is by any burns or bodily injury or by any Crl.Appeal No.2464 of 2006

cause other than in normal circumstances and (ii) is within seven years of her

marriage and (iii) that soon before her death, she was subjected to cruelty or

harassment by her husband or any relative of the husband for, or in connection

with, any demand for dowry. The explanation to this Section says, for the

purpose of this sub-section, "dowry" shall have the same meaning as in

Section 2 of the Dowry Prohibition Act, 1961. Section 113B of the Evidence

Act dealing with presumption as to dowry death, says that 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 had 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.

Explanation to the Section says that, for the purposes of the Section, dowry

death shall have the same meaning as in section 304B IPC. The marriage be-

tween the deceased and A2 is not disputed. The fact that death of Anitha Ku-

mari took place within 7 years of her marriage and that Anitha Kumari had

committed suicide by hanging herself, are also not disputed. The opinion as to

cause of death stated by PW12 in Ext. P10 post-mortem certificate, that is,

"Postmortem findings are consistent with death due to the combined effects of Crl.Appeal No.2464 of 2006

construction of neck and poisoning" is not disputed. Though poisoning is also

referred to, the final report/ chargesheet and the charge framed by the Court

does not refer to the same. Nevertheless, the fact remains that Anithakumari

had committed suicide within seven years of her marriage. Therefore, the first

two ingredients of section 304B IPC stand established.

31. Now coming to the third ingredient contemplated under Section

304B IPC. It was submitted on behalf of the accused that this ingredient, that

is, the burden to prove that soon before the death of Anitha Kumari, she was

subjected to cruelty or harassment by her husband or any relative of the

husband for, or in connection with, any demand for dowry, has not be

discharged by the prosecution. The evidence does not disclose that there was

any demand for dowry by the accused before or at the time of marriage or at

any time after the marriage. Added to this, there are several contradictions and

omissions in the testimony of the witnesses. Further, the main witnesses on

whom the prosecution relies on to prove the prosecution case are close

relatives and hence interested witnesses. Therefore, their testimony cannot be

relied on, goes the argument of the accused. In support of the arguments,

reference is made to the decisions in Gurjit Singh v. State of Punjab, AIR Crl.Appeal No.2464 of 2006

2020 SC 1785, State of Kerala v. Jose @ Saju, 1994 KHC 268, State of

Andhra Pradesh v. M. Madhusudhan Rao, 2008 (15) SCC 582, Netai

Ghosh v. State of West Bengal, 2022 KHC 2367, Sher Singh @ Partapa v.

State of Haryana, AIR 2015 SC 980, Mahesh Kumar v. State of Haryana,

AIR 2019 SC 4225, Wasim v. State NCT of Delhi, AIR 2019 SC 3470,

Baijnath v. State of Madhya Pradesh, AIR 2016 SC 5313, Tarun v. State of

West Bengal, (2001) 10 SCC 754, Narayanamurthy v. State of Karnataka,

AIR 2008 SC 2377, Major Singh v. State of Punjab, AIR 2015 SC 2081,

Devender Singh v. State of Uttrarakhand, 2022 SCC Online SC 489, Ra-

jinder Singh v. State of Punjab, AIR 2015 SC 1359.

32. In the aforesaid decisions it has been held by the Apex Court that

the prosecution in order to succeed will have to establish that the deceased

"soon before her death" was subjected to cruelty or harassment 'for or in con-

nection with the demand for dowry'. It is not enough that harassment or

cruelty was caused to the woman with a demand for dowry at some time, if

S.304B is to be invoked. But it should have happened 'soon before her death'.

The legislative object in providing such a radius of time by employing the

words 'soon before her death' is to emphasise the idea that her death should, in Crl.Appeal No.2464 of 2006

all probability, have been the aftermath of such cruelty or harassment. In other

words, there should be a perceptible nexus between her death and the dowry

related harassment or cruelty inflicted on her. If the interval which elapsed

between the infliction of such harassment or cruelty and her death is wide, the

court would be in a position to gauge that in all probabilities the harassment or

cruelty would not have been the immediate cause of her death. It is hence for

the court to decide, on the facts and circumstances of each case, whether the

said interval in that particular case was sufficient to snuff its cord from the

concept 'soon before her death'. Further, demand for dowry should not be a

stale but should be continuing cause for death of the married woman under

Section 304B IPC. The factum of unnatural death in the matrimonial home

and that too within seven years of marriage is thus ipso facto not sufficient to

bring home the charge under S.304B and S.498A of the Code against them.

The initial burden is on the prosecution to prove the ingredients under section

304B. The presumption as to dowry death would get activated only upon the

proof of the fact that the deceased had been subjected to cruelty or harassment

for or in connection with any demand for dowry by the accused and that too

soon before death. Only when such burden is discharged, the initial Crl.Appeal No.2464 of 2006

presumption of innocence of the accused would get replaced by deemed

presumption of guilt. Such a proof is thus the legislatively mandated

prerequisite to invoke the otherwise statutorily ordained presumption of

commission of the offence of dowry death by the person charged therewith.

There should always be a proximate and live link between effects of cruelty

based on dowry demand and the death of the lady concerned.

33. Keeping the aforesaid principles in mind, I will now consider

whether the prosecution has succeeded in establishing the third ingredient of

Section 304 B IPC, referred to hereinabove. In the case on hand, it is true that

the main witnesses, namely, PW1, 2, 3 and 15, are the brother, mother, aunt

and father respectively of the deceased. But that alone is no ground to

disbelieve or discard their testimony. In cases of this nature, it is only close

relatives who can depose as to what happened within the four walls of the

matrimonial home. In Gumansinh @ Raju Bhikabhi Chauhan v. State of

Gujarat, AIR 2021 SC 4174, it has been held that most often the offence of

subjecting a married woman to cruelty is committed within the boundaries of

the house which in itself diminishes the chances of availability of any

independent witness and even if an independent witness is available whether Crl.Appeal No.2464 of 2006

he or she would be willing to be a witness in the case is also a big question

because normally no independent or unconnected person would prefer to

become a witness for a number of reasons. There is nothing unnatural for a

victim of domestic cruelty to share her trauma with her parents, brothers and

sisters and other such close relatives. The evidentiary value of the close

relatives / interested witness is not liable to be rejected on the ground of being

a relative of the deceased. Law does not disqualify the relatives to be produced

as a witness though they may be interested witness.

33.1. Further, the ordinary presumption is that a witness speaking under

an oath is truthful unless and until he is shown to be untruthful or unreliable in

any particular respect. (State of Punjab v. Hari Singh, 1974 KHC 694: AIR

1974 SC 1168). Therefore, merely because the witnesses are close relatives, is

no ground to discard their testimony. What is to be looked into is whether the

witnesses are speaking the truth.

34. There is certainly force in the argument advanced on behalf of

the defence that there are material omissions in the statement of the witnesses

to the police and in their testimony. The testimony of the witnesses relating

to the alleged acts of cruelty by the accused suffer from inconsistencies. Crl.Appeal No.2464 of 2006

Going by the prosecution version there are mainly four incidents of cruelty

alleged against the accused persons, namely,- (i) an amount of ₹50,000/- was

demanded by the 2nd accused; (ii) A2 slapped Anitha Kumari annoyed by the

delay on her part in opening the door when A1 and A2 visited her while she

was in her parent's house; (iii) the 1st and 2nd accused made a list of the gift

articles received on the naming ceremony of the twin boys of the deceased,

which upset, hurt and made the deceased unhappy and (iv) the accused

scolded the deceased saying that there was deficiency in the sawn timber sent

by her parents to be used in the construction of the residential building being

put up by the 2nd accused in the property adjacent to the residential building

of his parents. These are mainly the four incidents spoken to by the

prosecution witnesses which prompted or drove Anitha Kumari to commit

suicide.

35. PW15, the investigating officer, admitted that PW1 had not

stated to him that when A2 had slapped his sister, the former had only asked

the latter as to why he had beaten his sister and that PW1 had not pursued the

matter so as to avoid further trouble for his sister. PW2, on the other hand

has a case that she had questioned A2 on seeing him slap her daughter and Crl.Appeal No.2464 of 2006

then A1, the mother-in-law had retorted that A2 had only caressed the cheek

of the deceased. Neither PW1 nor PW15, the father has such a case. PW15

does not speak of this incident. It may be because he was not present in the

home at that point of time. However, he does not even have a case that he

was later on informed by PW1 or PW2 about the incident. PW2 when asked

whether she had stated to the police regarding the slapping incident,

answered in the affirmative. However, when she was told that such a

statement is not seen in her statement to the police, she reiterated that she had

given such a statement. When she was asked whether the said statement was

there when her statement was read over to her, she answered that she had not

noticed the same.

36. PW1 in the chief examination deposed that his sister as

demanded by A1 and A2 had showed them the ornaments received on the

naming ceremony of the twin boys. A1 and A2 prepared a list of the same.

PW1 was the asked by the prosecutor as to why the list had been prepared, to

which he answered that it may be because the accused did not trust them.

This incident had hurt/upset and made his family and his sister unhappy.

PW15, the investigating officer, deposed that PW1 had not stated to him that Crl.Appeal No.2464 of 2006

his family and sister were quite hurt or upset, when the accused had made a

list of the gifts received. PW2 also admitted that she had not stated to the

police that the incident relating to preparation of list of the gift articles by the

accused had upset/pained her daughter.

37. According to PW1, at the time of marriage, the accused had

demanded that all what could be given to Anitha Kumari must be given.

They also demanded that at least 50 sovereigns must be given. However,

PW2 and PW15 have no such case. According to PW2, the accused had told

them that they could give whatever they liked to their daughter for her

marriage ("കല്യാണത്തിന് മകൾക്ക് ഞങ്ങൾക്ക് ഇഷ്ടമുള്ളത് കൊടുക്കാനാണ് പറഞ്ഞത് "). Further,

PW1, in his chief examination deposed that when the 2 nd accused demanded

that the gold ornaments given to his sister be sold, his sister had replied that

there was no necessity to sell the gold ornaments and that they could reside

in the house situated in the property given by her parents. In the cross

examination, he deposed that to his knowledge the sale proceeds received

from the sale of his sister's ornaments had been lent out on interest by the

accused. He admitted that he has no direct knowledge of the same. This

deposition of PW1 regarding the sale of ornaments is not the version of the Crl.Appeal No.2464 of 2006

other witnesses. PW2's case is that out of the 70 sovereigns, 40 sovereigns

had been sold. When they were sold, her daughter was told that the money

obtained would be used for lending it out on interest. However, contrary to

the assurance given, the money was used for clearing the debts of A5 which

he had incurred in marrying off A3. The version of PW15 regarding the gold

ornaments is that - his daughter told him that some of her ornaments had

been sold by A2 and the money lent out on interest. Thereafter his daughter

informed him that the money had not been lent out and that the money had

been used for clearing the debt of A5. PW15 on further questioning deposed

that the entire ornaments of his daughter had been sold. This again is

inconsistent with the version of PW2, who has a case that only 40 sovereigns

had been sold.

38. Likewise, the testimony of witnesses regarding the alleged

demand by the 2nd accused for ₹50,000/- is also not quite satisfactory. PW2

was asked whether she had stated to the police that she had seen an injury

mark/contusion on the face of her daughter when the 2 nd accused had grasped

her daughter's face tightly when she refused his demand for ₹50,000/-,

replied that she does not remember. PW2 has a further case that her daughter, Crl.Appeal No.2464 of 2006

several times before her death had asked A2 to reside in the house given to

her as dowry. A2 is then stated to have said that as long as A5 was alive, the

latter would never permit him to reside in his wife's house. Nobody else

seems to have such a case. PW15 deposed that A2 had demanded that the

property given as dowry be sold for the construction of a house. His daughter

did not like this idea. Therefore, PW15 told them that he would construct

another house and shift his residence to the same so that Anitha and A2 could

reside in the house given as dowry. PW15, also has a case that he had in fact

started the work of the house and completed the construction till the roof.

39. PW7 is the witness relied on by the prosecution to prove the case

of harassment in connection with the deficiency in timber. DW2 is the

witness examined on behalf of the defence to prove that no such incident had

taken place. The trial court relied on the evidence of PW7 but rejected the

evidence of DW2. The testimony of DW2 seems to have been disbelieved

only because according to the learned Sessions Judge, the witness admitted

that law does not permit union employees to unload articles brought in a

bullock cart and so concluded that the possibility that the witness is deposing

falsehood to help the accused persons, cannot be ruled out. This does not Crl.Appeal No.2464 of 2006

appear to be a sound reasoning.

40. In Ext.P15 FIS given by CW1, who could not be examined as he

passed away before the trial, no such incidents as spoken to by the witnesses

are seen referred to. It is true that the FIR is not an encyclopedia and it need

not contain all the details. If PW2 is to be believed, CW1 was aware of all

the facts that she had spoken to in her chief examination. However, Ext.P15

is conspicuously silent about these aspects. CW1 in the FIS only says that

Anitha Kumari had earlier told them that she had been scolded of and on, by

her mother-in-law as well as her sisters-in-law. According to CW1, probably

upset/unhappy by the incompatibility with the family members, Anitha

Kumari must have consumed some poison causing her death. CW1 has also

stated that he entertains doubts regarding the death of Anitha Kumari.

‍ ാരും കൂടെ കൂടെ വഴക്കു (......അനിത കുമാരിയെ അവളുടെ അമ്മായി അമ്മയും, നാത്തൂന്മ ‍ ് ഞങ്ങളോട് പറഞ്ഞിട്ടുണ്ട് . വീട്ടുകാരുമായുള്ള സ്വര ചേര്‍ പറയാറുണ്ടായിരുന്നു എന്ന് മുന്പ ച്ചയില്ലായ്മകൊണ്ടുള്ള മനോവിഷമത്താല്‍ എന്തോ വിഷം കഴിച്ച് മരിച്ചിട്ടുള്ളതായിരിക്കും .

അനിത കുമാരിയുടെ മരണ കാര്യത്തില്‍എനിക്ക് സംശയമുണ്ട് ....).

41. PW20, the investigating officer does not seem to have conducted

any investigation worth the name in this case. He does not seem to have

conducted any investigation relating to the allegation of sale of the gold Crl.Appeal No.2464 of 2006

ornaments given to the deceased. There are different versions regarding the

quantity sold and the purpose for which the sale proceed was utilized. The

witnesses have 2 versions on this aspect- one is that the sale proceeds was

lent out on interest and the other is that the money from the sale of the

ornaments was used for clearing the debts of A5. PW20 admits that he has

not conducted any investigation on this aspect. He also deposed that except

Vijayakumar, the husband of A3, all the residents of the house in which the

incident took place and the residents of the adjoining houses have been

arrayed as accused in this case. It also needs to be noted that a very serious

allegation is seen raised against the accused persons in the final report/charge

sheet filed by PW20. It is alleged that the deceased was accused of having an

illicit relationship with Udayakumar, and this accusation is alleged to have

been made by A1, A3 and A4. However, this allegation is conspicuously

absent in the charge framed by the Sessions Court, to which the prosecution

is not seen to have objected. The prosecution does not have a case that in

spite of the fact that there was also such an allegation against the accused

persons, the same was omitted to be mentioned in the charge framed by the

court. None of the prosecution witnesses speak of such harassment by the Crl.Appeal No.2464 of 2006

accused in the box. I fail to understand on what basis such a wild and serious

allegation has been made in the charge sheet/final report filed by PW20, who

when examined has no such case at all.

42. As stated earlier, to establish the third ingredient of section 304 B

IPC, the prosecution has to establish that the deceased was subjected to cruelty

or harassment by her husband or any relative of the husband for, or in

connection with, any demand for dowry. The explanation to this Section says,

for the purpose of sub-section (1), 'dowry' shall have the same meaning as in

Section 2 of the Dowry Prohibition Act, 1961. Therefore, for a dowry death, as

defined under S.304B IPC, the death should have been in connection with any

demand of dowry as defined in the Dowry Prohibition Act. In

Narayanamurthy v. State of Karnataka, AIR 2008 SC 2377 referring to the

dictum in Satvir Singh v. State of Punjab, 2001 (8) SCC 633 it has been held

that there are three occasions related to dowry. One is before the marriage,

second is at the time of marriage and the third is 'at any time' after the

marriage. The third occasion may appear to be an unending period. But the

crucial words are 'in connection with the marriage of the said parties'. This

means that giving or agreeing to give any property or valuable security on any Crl.Appeal No.2464 of 2006

of the above three stages should have been in connection with the marriage of

the parties. There can be many other instances for payment of money or giving

property as between the spouses. For example, some customary payments in

connection with birth of a child or other ceremonies are prevalent in different

societies. Such payments are not enveloped within the ambit of 'dowry'. Hence

the dowry mentioned in S. 304B should be any property or valuable security

given or agreed to be given in connection with the marriage. It is not enough

that harassment or cruelty was caused to the woman with a demand for dowry

at some time, if S.304B is to be invoked. But it should have happened 'soon

before her death'. The said phrase, no doubt, is an elastic expression and can

refer to a period either immediately before her death or within a few days or

even a few weeks before it. But the proximity to her death is the pivot

indicated by that expression. The legislative object in providing such a radius

of time by employing the words 'soon before her death' is to emphasise the

idea that her death should, in all probabilities, have been the aftermath of such

cruelty or harassment. In other words, there should be a perceptible nexus

between her death and the dowry related harassment or cruelty inflicted on

her. If the interval which elapsed between the infliction of such harassment or Crl.Appeal No.2464 of 2006

cruelty and her death is wide the court would be in a position to gauge that in

all probabilities the harassment or cruelty would not have been the immediate

cause of her death. It is hence for the court to decide, on the facts and

circumstances of each case, whether the said interval in that particular case

was sufficient to snuff its cord from the concept 'soon before her death'.

42.1. If the death occurred independent of any demand for dowry,

that death cannot be termed a dowry death (State of Kerala v. Jose @ Saju,

1994 KHC 268). In the case on hand, the evidence on record is not

satisfactory to prove all the ingredients of Section 304B IPC. The parents of

Anitha Kumari admit that there was no demand for dowry before or at the

time of marriage. PW15 deposed that subsequent to the marriage also the 2 nd

accused had never directly made any demand for dowry. As to whether there

was any indirect demand for dowry after marriage, the evidence on record is

not satisfactory. That being the position, it can only be held that the

prosecution has failed to establish all the ingredients of the offence

punishable under Section 304-B IPC.

43. Now coming to the offence punishable under Section 498-A IPC.

Clause (a) of Explanation to S.498A IPC postulates that any wilful conduct Crl.Appeal No.2464 of 2006

which is of such a nature as is likely to drive a woman to commit suicide

would constitute 'cruelty'. Such wilful conduct, which is likely to cause grave

injury or danger to life, limb or health (whether mental or physical) of the

woman would also amount to 'cruelty'. As held in State of West Bengal v.

Orilal Jaiswal, AIR 1994 SC1418, there has to be clinching evidence to find

the prosecution case that the deceased had been subjected to mental and

physical torture and she remained unhappy in the house of her -in- laws, and

such acts of cruelty, in ordinary course, were likely to disturb the mental

frame of the deceased and cause sufficient impulses to commit suicide. In a

criminal trial, the degree of proof is stricter than what is required in a civil

proceeding. In a criminal trial however, intriguing may be facts and

circumstances of the case, the charges made against the accused must be

proved beyond all reasonable doubts and the requirement of proof cannot lie

in the realm of surmises and conjectures. The requirement of proof beyond

reasonable doubt does not stand altered even after the introduction of S.498A

IPC and S.113 A of Indian Evidence Act. Although, the court's conscience

must be satisfied that the accused is not held guilty when there are reasonable

doubts about the complicity of the accused in respect of the offences alleged, Crl.Appeal No.2464 of 2006

it should be borne in mind that there is no absolute standard for proof in a

criminal trial and the question whether the charges made against the accused

have been proved beyond all reasonable doubts must depend upon the facts

and circumstances of the case and the quality of the evidence adduced in the

case and the materials placed on record. The doubt must be of a reasonable

man and the standard adopted must be a standard adopted by a reasonable

and just man for coming to a conclusion considering the particular subject

matter.

44. In Gurbachan Singh v. Satpal Singh 1990 (1) SCC 445 it has

been held that the conscience of the court can never be bound by any rule but

that is coming itself dictates the consciousness and prudent exercise of the

judgment. Reasonable doubt is simply that degree of doubt which would

permit a reasonable and just man to come to a conclusion. Reasonableness of

the doubt must be commensurate with the nature of the offence to be

investigated. Exaggerated devotion to the rule of benefit of doubt must not

nurture fanciful doubts or lingering suspicions and thereby destroy social

defence. Justice cannot be made sterile on the plea that it is better to let

hundred guilty escape than punish an innocent. Letting guilty escape is not Crl.Appeal No.2464 of 2006

doing justice, according to law. However, the Court has to be extremely

careful in assessing the facts and circumstances of each case and the evidence

adduced in the trial for the purpose of finding whether the cruelty meted out to

the victim had in fact induced her to end the life by committing suicide. It has

been further held that the Court should be extremely careful in assessing the

facts and circumstances of each case and the evidence adduced in the trial for

the purpose of finding whether the cruelty meted out to the victim had in fact

induced her to end the life by committing suicide. If it transpires to the Court

that a victim committing suicide was hypersensitive to ordinary petulance,

discord and differences in domestic life quite common to the society to which

the victim belonged and such petulance, discord and differences were not

expected to induce a similarly circumstanced individual in a given society to

commit suicide, the conscience of the Court should not be satisfied for basing

a finding that the accused are guilty.

45. It is true that in the case on hand, there is no material worthy of

credence to hold that the deceased was hypersensitive or that for other reasons,

she had lost normal frame of mind and being overcome by unusual psychic

imbalance, decided to end her life by committing suicide. However, the Crl.Appeal No.2464 of 2006

evidence adduced in the case for the reasons discussed is not satisfactory to

prove the instances of cruelty alleged against the accused. Moral conviction or

conviction based on suspicion is not possible. Suspicion, however strong it

may be, cannot take the place of proof. Conviction can only be made on the

basis of cogent evidence and materials brought on record by the prosecution.

46. The prosecution has a case that Ext.P1 is the suicide note of the

deceased. An argument was advanced by the learned senior counsel for A1

that PW20, the investigating officer, has not deposed regarding the contents

of Ext.P1 and that only if he deposes the contents, it would become

substantive evidence. This argument is apparently incorrect. The contents of

Ext.P1 was not written or prepared by the investigating officer or for that

matter any of the other prosecution witnesses. It is not the previous statement

of PW20 and therefore, the contents of Ext.P1 need not be spoken to by him.

PW20 need only speak about the seizure/recovery of Ext.P1. It is for the

prosecution to prove that the contents of Ext.P1 is in the handwriting of the

deceased by resorting to Section 45 or Section 47 of the Evidence Act, which

has been done in this case. Further, Ext.P1 is alleged to have been seized

from under the brassier worn by the deceased. If PW1, is to be believed, his Crl.Appeal No.2464 of 2006

sister when taken to the hospital was subjected to an ECG examination.

According to the prosecution case, Ext.P1 was recovered only when the

inquest report was prepared by the Tahsildar. If the deceased before her death

had been subjected to ECG examination as deposed by PW1, then in all

probability Ext.P1 would have been recovered, as ECG examination is

usually done after removing the clothing, a gel applied and small pads or

patches (electrodes) hooked to a machine that traces the heart activity, will be

placed like stickers, on the skin on each arm, leg and on the chest. Therefore,

if ECG of the deceased had been taken, how come Ext. P1 was not seen? Or

was this not the way, the ECG was taken? Was it taken with the clothing on?

No satisfactory answer has been given by the prosecution on this aspect.

47. Further, some writing in Ext.P1 is seen scored off. On one side

of Ext.P1, a piece of paper, it is written thus- 'എന്റെ മരണത്തിനു കാരണം അമ്മായി

അമ്മ' (my mother-in-law is responsible for my death). This is written on both

sides of the paper. However, on one side of the paper a coma is seen after the

aforesaid writing and then it is also written ' അമ്മ അമ്മ' (amma amma) and

then scored off. When the attention of PW1 was drawn to this aspect, he

deposed that he does not know about the corrections and that when he had Crl.Appeal No.2464 of 2006

seen Ext.P1, the writing അമ്മ (amma) was also there. PW20 deposed that the

deceased used to address her mother-in-law as mother. That may be true. But

PWs1, 2, 3 or 15 does not say so. No explanation is coming from the

prosecution as to who scored of the writing 'അമ്മ അമ്മ'. No satisfactory

explanation is forthcoming from the prosecution on this aspect also.

48. Further, Ext.P1 only contains a general statement that the mother-

in-law is responsible for the death of the deceased. This may not be sufficient

(Netai Dutta v. State of West Bengal, AIR 2005 SC 1775). There is no

reference to any willful act or omission by the mother-in-law, which drove

the deceased to commit suicide. Words uttered on the spur of the moment or

in a quarrel without something more cannot be said be of such nature which

drove the deceased to commit suicide. As observed by the Apex Court in

Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), AIR 2010 SC

1446, the question as to what is the cause of suicide has no easy answers

because suicidal ideation and behaviours in human beings are complex and

multifaceted. Different individuals in the same situation react and behave

differently because of the personal meaning they add to each event, thus

accounting for individual vulnerability to suicide. Each individual's tendency Crl.Appeal No.2464 of 2006

to commit suicide depends on his inner subjective experience of mental pain,

fear and loss of self-respect. Every domestic discord cannot be characterized

as matrimonial cruelty (See also Vinodan @ Bose v. State of Kerala, 2007

(1) KHC 291 and Rosamma Kurian v. State of Kerala, 2014 (2) KHC 64.

49. The trial court in the case on hand found the evidence on record

insufficient to hold A3 to A5 guilty of the offences alleged. The trial court

seems to have been swayed to a great extent in relying on Ext.P1 to convict

A1. The trial judge seems to be of the opinion that if Anitha Kumari was lead-

ing a happy married life, there was no absolutely no necessity or reason for her

to commit suicide; the failure of the accused to show the existence of other

reasons coupled with the presumptions contained under Sections 113A and B

of the Evidence Act are sufficient to establish the offences alleged against A2

and A2. As noticed earlier, the presumptions under the Sections arise if only

the prosecution discharges its initial burden of establishing the prosecution

case and not the other way around. That burden is not seen satisfactorily dis-

charged in this case. In the said circumstances, I find that the prosecution has

failed in establishing the guilt of the accused beyond reasonable doubt. Hence,

I find that they are entitled to the benefit of doubt.

Crl.Appeal No.2464 of 2006

In the result, the appeal is allowed. The conviction and sentence of the

appellants/accused no.1 and 2 for the offences punishable under Sections

304B and 498A IPC is set aside. Both of them are acquitted under Section

235(1) Cr.P.C. Their bail bonds shall stand cancelled and they shall be set at

liberty forthwith.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

C.S.SUDHA JUDGE ak