Kerala High Court
Jose vs State Of Kerala on 1 February, 2024
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
CRL.APPEAL NO. 2759 OF 2008
AGAINST THE JUDGMENT DATED 21.11.2008 IN SC 573/2006 OF
ADDITIONAL SESSIONS COURT (FAST TRACK COURT NO.II-ADHOC),
THRISSUR
APPELLANT/ACCUSED:
JOSE
S/O LONAPPAN,POZHOLIPARAMBIL (H),THOMMANA,
KADUPPASSERI, MUKUNDAPURAM.
BY ADVS.
SRI.C.HARIKUMAR
SRI.ARAVINDA KUMAR BABU T.K.
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 17.01.2024, THE COURT ON 01.02.2024 DELIVERED
THE FOLLOWING:
2
Crl.Appeal No.2759 of 2008
P.G. AJITHKUMAR, J. "C.R."
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Crl.Appeal No.2759 of 2008
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Dated this the 1st day of February, 2024
JUDGMENT
The appellant was the accused in S.C.No.573 of 2006 of
the Sessions Court, Thrissur. The Additional Sessions Judge
(Fast Track Court No.II-Adhoc), Thrissur convicted him of the
offences punishable under Sections 498A and 306 of the
Indian Penal Code, 1860 (IPC). He was sentenced to undergo
simple imprisonment for a period of three years and to pay a
fine of Rs.2,000/- for offence under Section 498A of the IPC
and for a period of five years and to pay a fine of Rs.10,000/-
for the offence under Section 306 of the IPC. The said
judgment of conviction and the order of sentence are under
challenge in this appeal filed under Section 374(2) of the Code
of Criminal Procedure, 1973 (Code).
2. The case of the prosecution was as follows:
The appellant married Smt.Jaya on 31.12.2000. They have
two children. The appellant used to mentally and physically
harass Smt.Jaya. On 01.05.2003 the appellant caught hold of
and slapped Smt.Jaya in public at Peringottukara Centre. One
week before the marriage of her brother, Smt.Jaya went to
her parental home in connection with purchase of gold
ornaments. While the appellant was taking her back to his
home, he slapped her at that house in the presence of others.
On a day in May 2004, the appellant pushed Smt.Jaya down
from the scooter. On 09.02.2006 at about 4.30 p.m., direction
of the appellant to bring to him a drilling machine was not
heeded in time and therefore he had assaulted Smt.Jaya
saying, why could not she die herself. Smt.Jaya, unbearable
with such mental and physical harassment, at about 7.30
p.m. on that day, after pouring kerosene set ablaze her body
inside their house. She succumbed to the injuries at 6.50 a.m.
on 13.02.2006.
3. The appellant was tried on a charge for the offence
under Sections 498A and 306 of the IPC. PWs.1 to 17 were
examined and Exts.P1 to P20 were marked. MOs.1 to 3 were
identified. The appellant denied the evidence against him and
stated during examination under Section 313(1)(b) of the
Code that he never harassed or assaulted his wife; whereas
she had a suicidal tendency, which he had conveyed to her
parents several occasions. On the fateful day, he did not do
the alleged acts and it was he who tried to rescue Smt.Jaya.
He also sustained burn injuries. Thus, he maintained that he
was innocent. No defence evidence was let in.
4. The trial court, after appreciating the evidence,
held that the evidence tendered by the prosecution proved the
charges beyond doubt and accordingly convicted the
appellant. The appellant assails the said conviction and
consequent sentence on many grounds.
5. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
6. The prosecution placed reliance to prove the
commission of the acts forming the foundation for the charge
on the oral testimonies of PWs.1, 3, 4, 11 and 15. The
prosecution seeks assistance of Ext.P8 F.I.statement and
Ext.P13 dying declaration also in that regard. PW1 is the
brother, PW3 the mother and PW4 the sister of the deceased.
They have stated about all the four incidents of the alleged
assault and harassment of the deceased by the appellant.
7. On 01.05.2003, the deceased was slapped by the
appellant at the public road near Peringottukara Centre for the
reason that a ring of their child was lost due to her
negligence. The marriage of PW1 was scheduled to be held on
23.11.2003. One week before Smt.Jaya went to her parental
home for the purchase of gold ornaments. In the evening, the
appellant reached that home to take Smt.Jaya back. They
further deposed that in the presence of others, Smt.Jaya was
slapped at that house by the appellant. Again, Smt.Jaya was
allegedly pushed down from the scooter on a day in May,
2004 on their way back from the house of his brother. The
second incident occurred in the presence of PWs.3 and 4.
However, all those witnesses knew about the other incidents
only as told by Smt.Jaya.
8. What the said witnesses stated regarding the
incident took place on 09.02.2006 also is based on the
information passed on to them by the deceased. She was
immediately taken to the hospital with burn injuries. When the
said witnesses reached the hospital, they were told by Smt.Jaya
of the incident. The appellant stated during examination under
Section 313 of the Code that such an incident occurred and it
was he who brought down fire and in that course he also
sustained burn injuries. Thus the fact that Smt.Jaya sustained
burn injuries when she attempted to set ablaze her body after
pouring kerosene at her house is not disputed.
9. The appellant married Smt.Jaya on 31.12.2000 and
they were residing as husband and wife ever thereafter.
Following the incident on 09.02.2006, Smt.Jaya was
undergoing treatment and while so she succumbed to the
burn injuries. PW12, who held the autopsy, deposed in court
substantiating that fact. Ext.P9 is his report. Smt.Jaya died
due to the burn injuries she sustained on 09.02.2006 is thus
indisputable. Therefore, the question is whether Smt.Jaya was
subjected to cruelty as defined in Section 498A of the IPC and
she was abetted to commit suicide.
10. Ext.P8 is the statement of Smt.Jaya recorded by
PW11, a Head Constable attached to Irinjalakuda Police
Station. On getting intimation from the Jubilee Medical Mission
Hospital, Thrissur regarding treatment of Smt.Jaya there, he
reached the hospital and recorded her statement. Based on
the said statement, PW9 Sub Inspector of Police registered a
crime as per Ext.P7. Ext.P8 was recorded on 10.02.2006,
which was on the very next day of Smt.Jaya sustaining burn
injuries. She expired on 13.02.2006. In Ext.P8 he has
precisely stated about the reasons for her attempting to
commit suicide and also the harassment perpetrated by the
appellant. It was stated in Ext.P8 about the incident took
place at her parental house on the day when she went there
in connection with the purchase of gold ornaments. From her
narration about the incidents transpired on 09.02.2006, it is
evident that on account of the delay in handing over the
drilling machine, she was assaulted by the appellant. She
proceeded to state that after sometime she felt frustrated and
disappointed owing to the assault and that impelled her to
commit suicide. She also stated that it was the appellant, who
rescued her and took to the hospital. It is also her version
that the appellant sustained burn injuries and was undergoing
treatment in the same hospital.
11. Since her health deteriorated a request was made
to the jurisdictional Magistrate, PW15 and accordingly he
had recorded the statement of Smt.Jaya. Ext.P13 is the
statement. It was recorded at about 2.00 p.m. on
11.02.2006. She succumbed to the injuries on 13.02.2006.
In Ext.P13, Smt.Jaya gave a statement almost similar to
what she stated in Ext.P8, particularly regarding the
incident that took place on 09.02.2006. From the oral
testimony of PW15 and the certificates of the doctor he had
obtained in Ext.P13 about the health condition of the
deceased, it is quite evident that she was well oriented at
the time when she gave the statement. Similar versions are
given by the deceased in her dying declaration and Ext.P8
which also became relevant under Section 32(1) of the
Evidence Act, 1872. In the light of the said evidence there
cannot be any doubt about the incident transpired on
09.02.2006.
12. Evidence tendered by PWs.1, 3 and 4 concerning
the incidents occurred in connection with the purchase of gold
ornaments and also in May, 2004 tallies with the versions of
the deceased in her dying declarations. Of course, the incident
in May 2004 was not seen by the said witnesses, but disclosed
to them by the deceased. Those incidents also contributed to
the death of Smt.Jaya, and therefore their versions can be
acted upon. From the above, the prosecution successfully
proved that the appellant physically and mentally tortured
Smt.Jaya on several occasions while they were living as
husband and wife.
13. The learned counsel for the appellant ably
elucidated the essential ingredients of the offences of
abetment to commit suicide and the cruelty that attracts an
offence under Section 498A of the IPC. After referring to
Sections 107 and 306 of the IPC, the learned counsel
vehemently argued that mens rea is a necessary constituent
in order to constitute an offence of abetment to commit
suicide.
14. The Apex Court in Wazir Chand v. State of
Haryana [(1989) 1 SCC 244] considered that question. It
was held that if any person instigates any other person to
commit suicide and as a result of such instigation the other
person commits suicide, the person causing the instigation is
liable to be punished under Section 306 of the I.P.C. for
abetting the commission of suicide. In S.S.Chheena v. Vijay
Kumar Mahajan and another [(2010) 2 SCC 190], the
Apex Court held that abetment involves a mental process of
instigating a person or intentionally aiding a person in doing
of a thing. Without a positive act on the part of the accused to
instigate or aid in committing suicide, conviction cannot be
sustained. It is further explained that the intention of the
legislature is clear that in order to convict a person under
Section 306 of the IPC there has to be a clear mens rea to
commit the offence. It also requires an active act or direct act
which led the deceased to commit suicide seeing no other
option and that act must have been intended to push the
deceased into such a position that he committed suicide.
15. The Apex Court in Rajesh v. State of Haryana
[(2020) 15 SCC 359] followed the law laid down in Ramesh
Kumar case [(2001) 9 SCC 618]. A three-Judge Bench of
the Apex Court in Ramesh Kumar held that instigation is to
goad, urge forward, provoke, incite or encourage to do "an
act". To satisfy the requirement of "instigation", though it is
not necessary that actual words must be used to that effect or
what constitutes "instigation" must necessarily and specifically
be suggestive of the consequence. Yet a reasonable certainty
to incite the consequence must be capable of being spelt out.
Where the accused had, by his acts or omission or by a
continued course of conduct, created such circumstances that
the deceased was left with no other option except to commit
suicide, in which case, an "instigation" may have to be
inferred.
16. In Satbir Singh and another v. State of
Haryana [(2021) 6 SCC 1], the Apex Court held that a bare
reading of the provision indicates that for the offence under
Section 306 of the IPC the prosecution needs to first establish
that a suicide has been committed. Secondly, the prosecution
must also prove that the person who is said to have abetted
the commission of suicide, has played an active role in the
same.
17. It emerges therefore that for constituting an
offence under Section 306 of the IPC the prosecution must
establish firstly that a suicide has been committed, and
secondly that the person who is said to have abetted the
commission of suicide, has played an active role in the same
with such a mens rea.
18. The appellant had slapped Smt.Jaya on 09.02.2006
when she was late in bringing the drilling machine. There is an
allegation that the appellant uttered as to why she could not
die herself. It has been stated by Smt.Jaya in both of her
statements that the appellant was short-tempered. It may be
noted that it was he who rescued Smt.Jaya by bringing down
the fire and taking her to the hospital. From the said facts and
also the nature of the incidents that took place, it is quite
evident that the appellant due to the sudden provocation
slapped the deceased. The said facts do not indicate that the
appellant had an intention to instigate Smt.Jaya to commit
suicide. The evidence tendered by the prosecution is
insufficient to answer the requirement of mens rea as laid
down by the Apex Court in the aforesaid decisions. Hence, I
hold that commission of an offence under Section 306 of the
IPC by the appellant is not proved beyond doubt. His
conviction for the said offence is therefore liable to be set
aside.
19. While commission of an offence of abetment to
commit suicide depends upon the mens rea of the indictee,
cruelty as defined in the explanation to Section 498A of the
IPC is the conduct of the indictee in a nature as is likely to
drive a woman to commit suicide. Hence, what amounts to
cruelty is dependent on the consequence of the act of the
indictee. That depends on the attitude, reflection and reaction
of the victim. Here, the acts perpetrated by the appellant
although he had no mens rea to impel Smt.Jaya to commit
suicide, she, unbearable by such acts, had committed suicide.
The said acts although does not amount to an offence of
abetment to commit a suicide, amounted to an offence
punishable under Section 498A of the IPC. Accordingly, the
conviction of the appellant for the said offence is confirmed.
20. In the result, this appeal is allowed in part.
Conviction of the appellant for the offence under Section 306
of the IPC and the sentence thereof are set aside. Conviction
of the appellant for the offence under Section 498A of the IPC
is confirmed and the sentence is modified. He is sentenced to
undergo rigorous imprisonment for a period of 2 (two) years.
Set off allowable under Section 428 of the Code is allowed.
The appellant shall surrender before the court below within
one month.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
