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2020 Supreme(Ker) 356
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. KUNHIKRISHNAN, J.
Baiju S/o Thankappan – Appellant
Versus
State of Kerala Rep. by the Public Prosecutor, High Court of Kerala – Respondent
Crl. A. No. 552 of 2008
Decided On : 22-05-2020
Advocate Appeared:
For the Appellants : Sri. S. Rajeev, Sri. K.K. Dheerendrakrishnan, Sri. V. Vinay, Sri. D. Feroze, Sri. K. Anand.
For the Respondent: B. Jayasurya.
IMPORTANT POINTS
Cruelty or harassment by the husband or relatives in connection with any demand for dowry which resulted in the death. Section 222 Cr.P.C. says that when a person is charged with an offence consisting of several particulars a combination of some only of which constituted a minor offence and such combination is proved but the remaining particulars are not proved he may be convicted of the minor offence-The cruelty of the husband towards the deceased is proved by the evidence of PW-4. The cruelty will come within the meaning of the first part of Explanation (a) of Section 498A of IPC.
Headnote:
Indian Penal Code- Section 304B, 306, 498A-Criminal Procedure Code- Section 222 -Whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband-As far as Section 306 IPC is concerned, it is not a minor offence compared to Section 304B IPC- There is no charge against the appellant under Section 306 IPC.
Statement of facts:
The wife of the appellant, Mini committed suicide on 23.11.2006 in between 8.15 A.M. and 4.15 P.M. from the house of the accused - The appellant married deceased Mini on 26.6.2006. The prosecution case is that the appellant subjected to cruelty by demanding dowry and hence Mini committed suicide- above appeal is filed by the appellant against the conviction and sentence imposed on him by the Additional Sessions Judge, Adhoc-I, Kottayam in Sessions Case No. 295 of 2007. The court below convicted the appellant under Section 304B of the IPC.
Finding of the court:
The cruelty of the husband towards the deceased is proved by the evidence of PW-4. The cruelty will come within the meaning of the first part of Explanation (a) of Section 498A of IPC-From the evidence adduced by the prosecution, no offence under Section 304B IPC is made out. But from the evidence adduced by the prosecution, the ingredients of the offence under Section 498A IPC is made out. Even if, there is no charge under Section 498A IPC, in the light of Section 222 Cr.P.C. the court can convict the appellant under the said provision-The conviction entered by the lower court against the appellant under Section 304B IPC is set aside and the appellant is convicted under Section 498A IPC.
Result: Appeal is allowed in part
JUDGMENT :
P.V. KUNHIKRISHNAN, J.
1. The above appeal is filed by the appellant against the conviction and sentence imposed on him by the Additional Sessions Judge, Adhoc-I, Kottayam in Sessions Case No. 295 of 2007. The court below convicted the appellant under Section 304B of the IPC.
2. The prosecution case is that, the wife of the appellant, Mini committed suicide on 23.11.2006 in between 8.15 A.M. and 4.15 P.M. from the house of the accused bearing Door No. IX/335 of Thalayolaparambu Grama Panchayat in Vadayar Village. The appellant married deceased Mini on 26.6.2006. The prosecution case is that the appellant subjected to cruelty by demanding dowry and hence Mini committed suicide.
3. To substantiate the case, prosecution examined PWs. 1 to PW-10. Exts.P1 to P6 are marked on the side of the prosecution. Exts.D1 and D2 are the Exhibits on the side of the defendants. MOs 1 to 15 are the material objects.
4. On going through the evidence and documents, the court below found that, the appellant committed the offence under Section 304B IPC and sentenced him to undergo rigorous imprisonment for seven years. Challenging the conviction and sentence, this Crl. Appeal is filed.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. The learned counsel for the appellant submitted that, even if the entire allegations against the appellant are accepted in toto, no offence under Section 304B IPC is made out in this case. The learned counsel for the appellant also submitted that, the alleged dowry demand is an embellishment from the side of the prosecution witnesses. According to the counsel, the evidence of PW-1, the brother of the deceased, and PW-8, who is the wife of PW-1, on one side and the evidence of PW-4 on the other side are mutually contradictory. PWs. 1 and 2 deposed that, suicide of Mini was due to demand for dowry and consequential harassment. But PW-4, a neighbour of the deceased, has no such case. The learned counsel also submitted that, on a perusal of the entire prosecution case, the defence case projected is more probable. The appellant filed a statement after his examination under Section 313 Cr.P.C. He submitted that, the deceased committed suicide because of the reason that, PW-1 unnecessarily sent her mother for employment in her old age. It is also the case of the appellant that, the elder brother of PW-1, who died earlier, has wife and children and PW-1 is not looking after the affairs of the wife and children of the elder brother of the deceased. There are other circumstances also made out in the statement and according to the appellant, the suicide is because of those reasons and the appellant and the deceased were residing in his house happily and there was no cruelty against the deceased wife Mini from his side.
7. The learned Public Prosecutor submitted that the Sessions Court considered all the aspects and found that the appellant is guilty under Section 304B IPC. It is also submitted that the marriage between the accused and the deceased was on 26.6.2006 and she committed suicide on 23.11.2006. There is a presumption under Section 113B of the Indian Evidence Act 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.” The prosecutor submitted that the conviction and sentence imposed by the court below is correct and there is nothing to interfere in it.
8. The prosecution examined PW-1 to PW-10 in this case as their witnesses. PW-1 is the brother of the deceased Mini who gave Ext.P1 First Information Statement which leads to the registration of the FIR. PW-3 is the Branch Secretary of Pulaya Mahasabha. He was examined to prove the marriage between the appellant and the deceased. He also deposed that there was payment of money an
